The primary reason for the decline of immigration exceptionalism is that plenary power has become “subject to important constitutional limitations,” as the Supreme Court said in Zadvydas v. Davis. We do not yet have a complete picture of what all of those constitutional limitations are. We also know that plenary power has not entirely disappeared, though it has become harder to describe with precision exactly what the doctrine means today. But since plenary power historically made immigration different from other areas of law, it is only natural that immigration law seems less exceptional as plenary power fades.
Immigration law is now torn between two alternative paradigms, which compete with each other and with the vestiges of traditional plenary power. One alternative paradigm is certainly administrative law. In a sense, administrative law has been in the background all along. As Alina Das has observed, the government has increasingly turned to administrative law doctrines to shield its immigration decisions from judicial scrutiny. Where in the past the government might have cited the Chinese Exclusion Case, now the government will cite Chevron or Heckler.
But we should remember that plenary power declined in large part because the Supreme Court became less willing to tolerate the civil liberties costs that came with unrestrained government authority over individuals. This was the essential problem in Zadvydas. But if this is the central problem with plenary power, it is not clear that administrative law will be an entirely satisfactory replacement. Administrative law lacks the tools to cope with the loss of individual liberty which is intrinsic to immigration enforcement. (Prof. Das’s article does an excellent job illustrating this problem in the context of habeas review of immigration detention.)
To put it bluntly, the EPA, the FDA, the VA, the NLRB and the myriad other agencies that are the focus of administrative law do not operate private detention centers. By contrast, Immigration and Customs Enforcement (ICE) detains more than 400,000 people per year. The draconian use of government force that is inherent in immigration enforcement raises a very different set of constitutional concerns than the regulatory contexts that produced Chevron, Skidmore, Overton Park,Auer, Brand X, and the other leading cases of administrative law. But that does not mean that immigration is an island unto itself. We do have very well developed legal doctrines to regulate deprivations of liberty like those involved in immigration enforcement. We call it criminal procedure. That is the other paradigm that now competes to drive the evolution of immigration law.
For scholars, the close connections between immigration and criminal law have spawned the development of crImmigration literature (along with an indispensible blog on the subject). The Supreme Court has recognized these connections in a number of ways. In United States v. Salerno, the Court analogized pre-trial detention in criminal cases to immigration detention. In Padilla v. Kentucky, the Supreme Court directly analogized the severe human consequences of deportation to criminal imprisonment. The Court has also expanded the use of the categorical approach to interpreting grounds of removal, a legal doctrine which immigration law shares with federal criminal sentencing law.
Criminal procedure offers tools that are especially well suited to address the urgent civil liberties concerns in immigration law, especially the manner in which the Department of Homeland Security arrests and detains people on immigration allegations. For example, as I have argued elsewhere, there is good reason to worry that the current system of immigration arrests allows the government to take people into custody for weeks or months without oversight. Anyone concerned with unrestrained government power over individuals should be alarmed by this gap in our constitutional armor. But administrative law, with its focus on judicial deference to agency decision-making, does not offer a satisfying solution. To be clear, the relevance of criminal law tools in immigration is not entirely unique in the administrative realm. The Supreme Court held in Camara v. Municipal Court (1967) that Fourth Amendment warrant requirements apply to administrative searches and seizures. We thus have precedent for developing a hybrid approach in which constitutional norms that are associated with criminal law may be imported to judicial review of administrative agency actions.
There are many situations where the administrative law paradigm does fit the challenges of immigration. This is especially the case when the government is granting visas to enter the country, as in Scialabba v. Cuellar de Osorio, or discretionary benefits like deferred action and employment authorization, as in US v. Texas. Administrative law might offer a useful alternative approach to cases like Kerry v. Din. In that case, the Court affirmed denial of a visa on security grounds, but no more than three justices could agree on any single rationale for the decision, while four justices dissented. The splintered result illustrates the depleted persuasive power of the traditional plenary doctrine with the justices. At the same time, the Court is understandably reluctant to allow the judiciary to become fully entangled in deciding who can enter the United States. As Chris Walker explains, administrative law offers a wealth of doctrinal methods by which courts can leave executive agencies in the driver’s seat, but without entirely removing the potential for meaningful judicial review. That seems a far better approach for the post-Zadvydas world than the old whatever-Congress-says-goes approach of the plenary power era (to paraphrase Knauff v. Shaughnessy).
Thus, administrative law does indeed offer a great deal to immigration, and it deserves the new interest that it is receiving from immigration scholars. But it is important also to not reflexively apply administrative law approaches in all situations. In particular, when individual liberty is at stake, the last thing we want is for courts to defer to the executive at the expense of due process. Administrative law does not have all of the answers, but it does have some of them.
Michael Kagan is Associate Professor at the University of Nevada, Las Vegas, William S. Boyd School of Law. @rsdwatch
This post is part of a week-long online symposium entitled Is Immigration Law Administrative Law?, which is based primarily on a panel by the same name that was part of the 2016 Annual Meeting of the Association of American Law Schools.