Mariano-Florentino Cuéllar – The Political Economies of Immigration Law


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Seminar to be held on Monday, January 28th in ERC 115 at 12:00 pm.

A largely dysfunctional American immigration system is only poorly explained by simple depictions of the political economy of lawmaking in this area, blaming functional economic policy-setting, longstanding public attitudes, explicit presidential discretion, or general gridlock. Instead, the structure of immigration law emerges from intersecting effects of three separate political economies – statutory compromises rooted in the political economy of lawmaking, organizational practices reflecting the political economy of implementation, and public reactions implicating the responses of policy elites and the larger public to each other. Together, these factors help constitute an immigration status quo of continuing legal controversies as well as powerful obstacles to change: (1) Particularly since 1986, American immigration statutes have created a legal arrangement essentially built to fail, giving authorities regulatory responsibilities that were all but impossible to achieve under existing law. (2) Implementation has been characterized by organizational fragmentation, with policy changes involving one agency producing externalities not owned by that agency, alongside limited presidential power to change enforcement or implementation. At the same time, (3) the interplay of unrealistic statutory goals, enforcement patterns, and public attitudes engenders a polarizing implementation dynamic, where agencies’ incapacity to enforce existing law tends to spur polarized responses producing legislation that exacerbates agency difficulties in meeting public expectations, without giving interested parties enough of a reason to support an alternative.

The resulting cycle favors expansion in the provision of border enforcement resources, a development supported or at least tolerated by most political actors yet failing to address the core institutional dysfunction in the system, while locking in most other features of the status quo. Beyond what these developments tell us about immigration law, they also reveal much about (a) how statutory entrenchment in the United States is affected by political cycles capable of eroding the legitimacy of public agencies, and (b) how powerful nation-states control, in limited but nonetheless significant ways, the transnational flows affecting their well-being and security.

Mariano-Florentino Cuéllar works at the intersection of law, public policy, and political science.  A member of the Stanford Law School faculty since 2001, he is currently Professor and Deane F. Johnson Faculty Scholar at Stanford Law School, Professor (by courtesy) of Political Science, and the Co-Director of Stanford’s Center for International Security and Cooperation.  His research and teaching focus on administrative law, executive power, and how organizations implement regulatory responsibilities involving public health and safety, migration, and international security in a changing world.  In July 2010, the President appointed him to the Council of the Administrative Conference of the United States, an independent agency charged with improving the efficiency and fairness of federal regulatory programs.  He also serves on the Department of Education’s National Commission on Educational Equity and Excellence, and the Department of State’s Advisory Sub-Committee on Economic Sanctions.

From early 2009 through the summer of 2010, he served as Special Assistant to the President for Justice and Regulatory Policy at the White House.  In this capacity, he led the Domestic Policy Council’s work on criminal justice and drug policy, public health and food safety, regulatory reform, borders and immigration, civil rights, and rural and agricultural policy.  Among other issues, Cuéllar worked on stricter food safety standards, the FDA’s regulatory science initiative, expanding support for local law enforcement and community-based crime prevention, strengthening border coordination and immigrant integration, and the Quadrennial Homeland Security Review.  Before working at the White House, he co-chaired the Obama-Biden Transition’s Immigration Policy Working Group.  During the second term of the Clinton Administration, he worked at the U.S. Department of the Treasury as Senior Advisor to the Under Secretary for Enforcement, where he focused on countering financial crime, improving border coordination, and enhancing anti-corruption measures.  He is on the Board of Directors of the Constitution Project, a non-profit think-tank that builds bipartisan consensus on significant constitutional issues.  He clerked for Chief Judge Mary M. Schroeder of the U.S. Court of Appeals for the Ninth Circuit.