Before he was tapped to become the next US attorney general, Jeff Sessions wrote a detailed handbook on how Congress should curb illegal and legal immigration. “What sense does it make to continue legally importing millions of low-wage workers to fill jobs while sustaining millions of current residents on welfare? Indeed, the same companies demanding a large boost in foreign labor are laying off American workers en masse,” wrote the Republican senator at the beginning of 2015.
As president-elect Donald Trump’s pick for attorney general, Sessions could soon be positioned to put his ideas into action. The US Senate must still approve the choice, but so far, Sessions’s prospects of getting the job look good.
If confirmed, he would oversee the federal government’s Department of Justice, which includes the Executive Office for Immigration Review: the branch of federal government charged with running immigration courts and interpreting immigration law.
“It’s a tremendous amount of power to lodge in one individual, but that is what the current regulations allow,” said Stephen Legomsky, professor emeritus at Washington University in St. Louis and former chief counsel for US Citizenship and Immigration Services, a division of the US Department of Homeland Security.
Sessions would have the final say on decisions made by the Board of Immigration Appeals, which Legomsky describes as the de facto Supreme Court of immigration law. That’s where contested decisions by immigration judges are resolved. The attorney general has the authority to review and reverse whatever they settle on. This can become binding precedent for immigration judges and Homeland Security department employees, said Legomsky.
That power also gives the attorney general wide leeway to interpret pre-existing immigration law, which is written in very general terms, he adds. For example, existing rules say that in order to receive asylum, an immigrant must prove persecution due to one of five different reasons, which include belonging to a particular social group. That could mean virtually anything.
In 1994, Janet Reno, attorney general under president Bill Clinton, ordered that people who were persecuted for their sexual orientation qualified for asylum under that broad category. But Sessions could use that same discretion of interpretation to push a less welcoming immigration agenda.
Here’s a sampling of his positions on the issue, via Twitter.
The Department of Justice deals with cases of all kinds, but the attorney general can shape policy through his or her selection of cases and crimes to address, said Lenni Benson, a professor at New York Law School.
Attorneys general can also influence the implementation of immigration law by hiring immigration judges who agree with them, and firing those who don’t. Unlike federal judges, who have lifetime appointments, immigration judges are mere agency employees. “There are real risks to decisional independence here,” said Jill Family, director, Law and Government Institute at the Widener University Commonwealth Law School. “[Judges] operate in an atmosphere where displeasing the boss can lead to real consequences.”