Notice & Comment

Due Process, Fair Notice, and Individual Liberty for Immigrants Too?

The balance of power in immigration law is heavily tilted toward the government.  As the Supreme Court’s decision this week in Jennings v. Rodriguez shows, the exact constitutional limits to the government’s power are still unclear.  Foreign nationals do have some rights, but they often feel the weight of government power to an exceptional extent.  Individuals in removal hearings mostly have no right to government funded counsel and the law that is applied to them is harsh, complex and opaque.  Much of that law is subject only to a “facially legitimate” standard of constitutional review. Many individuals do not even receive a hearing because of expedited removal or agency practices that push for individuals to waive rights to a hearing.

If one described the extent of government power in immigration law but left out any indication that immigrants are the subjects of that power, those who seek to limit the authority of the federal government probably would be alarmed.  There is a re-energized movement to weaken federal agency power.  Some who seek to weaken agency power do so because they believe administrative agencies are illegitimate.  Others seek to increase individual liberty by decreasing agency power without calling for the demise of administrative law.  The White House Counsel, Don McGahn, called the regulatory state “the greatest threat to the rule of law in our modern society.”  He also characterized the administrative state as a “direct threat to individual liberty” and described the Trump Administration’s vision for regulatory reform as guided by three principles:  due process; fair notice; and individual liberty.

What happens to the ideas behind this movement when it comes to immigration law?  I explore this question in an article called Immigration Law Allies and Administrative Law Adversaries.  I point out that those who wish to diminish agency power need to clarify whether that goal includes immigration law.  If not, why not?  I also examine a related phenomenon.  Those who are concerned about agency power in immigration law may not share the end goals of administrative law adversaries.  Those end goals could be a denouncement of much of administrative law as unconstitutional or a desire to only reduce agency power.

There is therefore a convergence between immigration law allies and administrative law adversaries.  In the context of immigration law, they may share a goal of reducing agency power.  But beyond immigration law they may diverge.  Immigration law allies can appreciate concerns about government power, but do those concerns extend beyond immigration law?  Administrative law adversaries express their concerns about government power.  Do those concerns extend to immigration law?

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