Volume 92, Number 3

Why not rid the United States of criminal noncitizens and the disorder they cause? Because, scholars urge, immigrants reduce crime rates, deporting noncitizens with criminal convictions costs far more than it is worth, and discarding immigrants when they become inconvenient is wrong. Despite the force of these responses, reform efforts have made little headway. Crime-based deportation appears entrenched. Can it be transformed, rather than modified at the margins?

Transformation is possible, but only if crime-based deportation is reenvisioned as the prerogative of local governments. National transformation, this Article shows, is a dead end. When the problem of immigrant crime is digested at the national level, under the rubric of “the national interest”—where noncitizen interests do not count by definition—there are numerous “rational” reasons why a self- interested citizenry would want to deport noncitizens, even for minor crimes. Additionally, whatever rational reasons exist are exaggerated by the national media, which gives the rare violent crime committed by an immigrant outsized national attention. The danger posed by this distorted media reality was highlighted by Donald Trump throughout his campaign for president. Trump’s establishment of an office to publicize crimes committed by deportable noncitizens will make the problem more acute.

Local governments, by contrast, can be more concrete, flexible, and pragmatic; they are apt to think in terms of residents and community, rather than citizen versus alien. Local residents think about neighbors, classmates, and fellow churchgoers, and the economic and social contributions of noncitizens who run afoul of the law loom larger in the local calculus than the national one. Were local governments granted responsibility for crime-based deportation, the humanity, value, and membership of immigrants who commit crimes would be more likely to enter the conversation about appropriate responses, helping to transform crime-based deportation.

This Article sheds light on significant doctrinal and policy issues that are central to the proper understanding of the administrative state. It grapples with a core question of administrative law: When are agencies established with features that insulate them from direct presidential control? Because of its constitutional significance, the legal literature focuses on removal protection for agency heads, and posits that agencies are more likely to be accorded such protection when the presidency and at least one of the chambers of Congress are controlled by different parties. The empirical support for this claim comes from a single political science study, which suffers from significant design flaws and has been widely misinterpreted. In fact, it shows that under almost all plausible scenarios Congress is less likely to vest agencies with indicia of independence under divided government.

To properly study the factors that affect the probability that agencies will be accorded indicia of independence we constructed and analyzed a new dataset. Three principal variables have a statistically significant impact: the approval rating of the President, the size of the Senate majority, and the alignment of the political party of the Senate majority and the President. The latter two variables had never been tested prior to our study. We find that Congress is less likely to establish agencies with indicia of independence when the President is popular. Moreover, when the Senate majority is not aligned with the President, an increase in the majority makes it more likely that Congress will establish an agency with indicia of independence. And, for a given size of Senate majority, alignment with the President makes it more likely that Congress will establish an agency with indicia of independence. Changes in the composition of the House do not produce comparable effects, suggesting that the Senate’s filibuster rule or the Senate’s role in confirming presidential appointees might play a role in this regard. Noting that the empirical results explain relatively little of the variation observed in the dataset related to when Congress establishes agencies with indicia of independence, this Article also explores the limitations of the quantitative empirical findings and the benefits of performing detailed case studies.

An earlier version of this text was delivered as the James Madison Lecture at the New York University School of Law on October 13, 2016.