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When Congress delegates authority to an executive agency, it tells us something important about the expertise that Congress wishes to harness in policymaking on an issue. In the legal literature on interagency dynamics and cooperation, issues at the nexus of health and immigration are largely understudied. This Article extends this literature by examining how delegations of authority on issues at the intersection of health and immigration influence policymaking. In an analysis of how administrative law models apply to three topics in the shared regulatory space of the Department of Health and Human Services (“HHS”) and the Department of Homeland Security (“DHS”), I demonstrate that health-related expertise is frequently marginalized rather than leveraged. Specifically, health policy expertise and priorities are subordinated to an administration’s immigration policy preferences, contravening Congress’s purpose in establishing related or overlapping jurisdictional assignments to HHS and DHS. Administrative law theories of shared regulatory space inadequately account for the predictable subordination of certain policy areas to others, as illustrated in this Article’s case studies on issues at the intersection of health and immigration. The routine capitulation of health policy actors to immigration enforcement actors reveals a need to extend the theory to accommodate this evidence. Although structural solutions may address some sources of health policy marginalization, effective dissemination of health related expertise in matters of health and immigration may require changing the way that political leaders prioritize health issues and acknowledge collateral consequences of immigration enforcement.

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Boston University Law Review