Fear and Loathing in Congress and the Courts: Immigration and Judicial Review
Posted: 25 Mar 2001
Abstract
This paper examines the oil-and-water relationship of United States immigration policy and judicial review. The most famous illustration of this uneasy mix has been the so-called plenary power doctrine, under which the Supreme Court has explicitly accorded Congress unusual deference in matters that affect the admission or expulsion of aliens. A second illustration is consular absolutism, the lower court doctrine that bars judicial review of consular officers' visa denials. A third is the ferocious assault on judicial review of immigration decisions by Congress in 1996.
Surprisingly, commentators have made no explicit attempt to link these three major developments. Yet they reflect, and possibly reinforce, a clear, albeit qualified, pattern of genuine discomfort ? on the parts of both Congress and the Judiciary ? with the notion of a significant judicial role in immigration matters. Moreover, these doctrines have had an immense combined effect on the evolution of modern immigration law.
After summarizing and critiquing the stated doctrinal explanations for these developments, the paper explores why immigration regulation has bred such particularized antagonism to judicial review. It considers some of the external factors that operate on judges, the general unpopularity and political powerlessness of immigrants, and some generic costs of judicial review. The article also offers an explanation of why, despite those costs, judicial review is at least as critical in immigration cases as it is in any other legislative or administrative process. The justifications for review are rooted in justice, not in charity.
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