Immigration Law Allies and Administrative Law Adversaries

Abstract

There is a largely unnoticed convergence affecting immigration law. The convergence is the point where immigration law allies meet administrative law adversaries. Administrative law adversaries are those who question the legitimacy of the administrative state or those who seek to diminish agency power stemming from a general skepticism about the scope of federal power. Immigration law allies are those who seek greater procedural and/or substantive rights for foreign nationals in the United States. The point of convergence is the point where immigration law allies and administrative law adversaries share concerns about government power and fair process.

There is a convergence, but the extent of the convergence is not clearly defined. Immigration law allies do not necessarily question the legitimacy of administrative law or object to federal power generally. Therefore, immigration law allies and administrative law adversaries may part ways beyond the point of convergence. The end goals of administrative law adversaries—weakened federal power for some, deconstruction of the administrative state for others—may have some positive effects for immigration law as restrictions on agency power are implemented. For example, there are efforts to eliminate Chevron deference and to increase agency rulemaking burdens. The effect of eliminating Chevron deference on immigration law is hard to predict, but it could result in judicial review that is more pro-immigrant. The effect of increasing rulemaking burdens has probable negative consequences for immigration law, however.

Eliminating Chevron deference and increasing regulatory burdens, as well as a broader effort to delegitimize administrative law, have long-term implications outside of immigration law. At the point of convergence, immigration law allies should be aware of the end goals of the administrative law adversaries. Are immigration law allies also administrative law adversaries? Immigration law allies also should question administrative law adversaries how immigration law fits into their goals. Is immigration law excluded from their project to reduce federal power? If immigration law is included, what would immigration law look like if their goals are achieved?

Keywords: immigration law, administrative law, adversaries, allies, chevron deference

JEL Classification: K00, K19, K39, K49