Shadow Immigration and the Power of the Presidency
An interview with Dean Cristina Rodríguez & Prof. Adam Cox
The president wields immense power to shift immigration policy and shape the lives of the millions of undocumented immigrants who live in the shadow of the U.S. immigration system. Regulatory and demographic changes over the last century have resulted in a large undocumented population in America, particularly from Mexico and Central America. Without a path to legalization, undocumented immigrants remain deportable at any time and subject to the discretion of the enormous immigration enforcement bureaucracy.
In this TalksOnLaw interview, recorded in December 2020 at the end of President Trump’s first term, Professor Adam Cox of NYU Law School and Cristina Rodríguez, now Dean of Yale Law School, co-authors of The President and Immigration Law, explain how this shadow immigration system came to be and how the president came to sit atop a supersized enforcement bureaucracy. They trace how deportation priorities have increasingly dominated U.S. immigration policy, examine the authority behind executive policymaking and signature initiatives such as the Obama administration’s Deferred Action for Childhood Arrivals (DACA) and DAPA programs and the first Trump administration’s travel bans, explore the historical role of the courts, and discuss avenues for reform that could bring the shadow system into the light.
What to Know Now
The dynamic Cox and Rodríguez describe has only intensified. The Biden administration issued new enforcement priorities in 2021; when Texas and Louisiana challenged them, the Supreme Court held in United States v. Texas (2023) that the states lacked standing, leaving enforcement discretion with the executive. DACA has remained in litigation since this conversation: after DHS v. Regents (2020), the Biden administration codified the program in a 2022 rule, a federal district court held it unlawful, and the Fifth Circuit in 2022 and again in January 2025 upheld deferred action itself while finding the work-authorization component likely unlawful. Only renewals are being processed, and roughly 455,000 people held DACA status in early 2026, down from more than 800,000 who have received it since 2012. The undocumented population was estimated at a record 14 million in 2023. The Title 42 public-health expulsions discussed here ended in May 2023.
President Trump’s second term, beginning in January 2025, has tested the limits of executive power the authors analyze: the rescission of prior enforcement priorities, nationwide expansion of expedited removal, a large expansion of state and local 287(g) enforcement partnerships, new travel-ban proclamations under the same Section 212(f) authority upheld in Trump v. Hawaii (2018), and the invocation of the Alien Enemies Act, which the Supreme Court held requires notice and an opportunity to seek habeas review. In Trump v. CASA (2025) the Court curtailed universal injunctions, and in Trump v. Barbara (2026) it struck down the executive order limiting birthright citizenship. Congress has still not enacted comprehensive immigration reform or legalization for Dreamers.
About Dean Cristina Rodríguez & Prof. Adam Cox
“The only way to really change… the powers that the president wields over American imigration policy today is to shrink [the] shadow system.”
Adam Cox
Adam Cox, Robert A. Kindler Professor of Law at New York University School of Law, is a leading expert on immigration law, voting rights, and constitutional law. His writing has appeared in the Yale Law Journal, Stanford Law Journal, Journal of Law and Economics, and many other scholarly publications, and has been covered by the New York Times, the Los Angeles Times, and others.
Cristina Rodriguez
Cristina M. Rodríguez is the Sol and Lillian Goldman Dean and Professor of Law at Yale Law School, the school’s 18th dean (since February 2026), and a nationally recognized scholar of administrative, constitutional, and immigration law. Her work has been published in numerous academic journals, including the Yale Law Journal, the Columbia Law Review, and Daedelus. She also has appeared regularly in media outlets, including National Public Radio, the Washington Post, the New York Times, Democracy Journal, and Forbes. Beyond academia, she served as Deputy Assistant Attorney General for the Office of Legal Counsel in the Department of Justice during the Obama Administration and clerked for U.S. Supreme Court Justice Sandra Day O’Connor.
