Notice & Comment

The Costs of Immigration Exceptionalism

Thanks to the Obama Administration it seems a lot of scholars in immigration law and administrative law are starting to ponder more deeply the question presented by this online symposium: Is Immigration Law Administrative Law?

To borrow a line from Justice Scalia’s Brand X dissent, “It is indeed a wonderful new world that the [Obama Administration’s execution actions on immigration] create[], one full of promise for administrative-law professors in need of tenure articles and, of course, for litigators.” A brief perusal of the administrative law and immigration law SSRN working paper series confirms the attention the two fields are starting to pay to each other. The Supreme Court’s decision in United States v. Texas to review the Obama Administration’s executive actions on immigration will no doubt spur even more mutual attention.

In my contribution to this online symposium, I focus on the costs of immigration exceptionalism to both fields of legal study and to doctrinal development in immigration law and administrative law more generally.

To make sure we are all on the same page, immigration exceptionalism—or any form of administrative law exceptionalism, for that matter—is the misperception that a particular regulatory field is so different from the rest of the regulatory state that general administrative law doctrines and principles do not apply. Administrative law teaches that the Administrative Procedure Act (APA) and the Supreme Court’s administrative law doctrines set the default standards for agency action and judicial review of agency action. As the Supreme Court has explained in Dickinson v. Zurko, congressional departures from the APA in an agency’s governing statute “must be clear,” and there is “a need for similar clarity in respect to grandfathered common-law variations.” Administrative law exceptionalists, by contrast, ignore these defaults and instead “carve out an approach to administrative review good for [the regulatory field’s] law only”—to quote the Court’s decision in Mayo.

To be sure, this does not mean there are no departures from the APA defaults. For example, over the years Congress has amended the Immigration and Nationality Act to expressly depart from, among other things, some of the APA’s judicial review standards. In that sense, certain aspects of immigration law are exceptional. The trouble with administrative exceptionalism from a descriptive, framing perspective—which is the focus of this post—occurs when exceptionalists do not begin with the administrative law defaults before looking for clear congressional intent for departure from those defaults.

Immigration law is not alone in considering itself exceptional. With coauthors in the relevant regulatory fields, I have explored similar administrative exceptionalism in financial regulation and tax. And later this week I’ll be participating in the Duke Law Journal’s 2016 Administrative Law Symposium entitled Intellectual Property Exceptionalism in Administrative Law. So immigration scholars and practitioners are in good company.

Putting aside the (un)lawfulness of immigration exceptionalism (which will be discussed by others in this online symposium), immigration exceptionalist approach imposes serious costs on both scholarly fields.

Let’s start first with immigration law. Because immigration exceptionalism encourages a myopic focus on immigration doctrine and scholarship, immigration scholars sometimes fail to tap into the wealth of knowledge in administrative law (and its regulatory subfields) to search for questions, answers, methodological approaches, and best practices to address systemic problems in immigration administration.

Having explored this literature at some length while still looking to immigration as one of my regulatory case studies, I can promise that immigration exceptionalists are missing out on rich insights provided by these laboratories of bureaucracy. To provide but a couple examples, administrative law scholarship focuses extensively on two questions that seem to be particularly important to the study of federal immigration administration: (1) how to reign in/monitor congressional delegation of discretion to federal agencies, especially in contexts where judicial review may not be easily available; and (2) how judicial review—or congressional or presidential oversight—can have a systemic effect on a regulatory actor (as opposed to just an effect on the particular individual before the court).

Now let’s turn to administrative law. Administrative law scholars spend way too little time studying immigration administration. Perhaps this lack of attention stems from reasons similar to tax exceptionalism in that the Immigration and Nationality Act—like the Internal Revenue Code—is a complex statute with a similarly perplexing regulatory scheme.

But this is a grave error. Immigration is a rich area to study administrative law on the ground. For instance, there are thousands of cases and agency actions nationwide with published decisions from all the circuits—as opposed to caselaw predominated by the D.C. Circuit. In other words, just as administrative law offers laboratories of bureaucracy for immigration scholars, immigration offers laboratories of judicial review of bureaucratic action for administrative law scholars.

Moreover, the circumstances surrounding immigration adjudication, for example, provide a fascinating window into the relationship between courts and agencies. The stakes for individual petitioners in immigration adjudication are so high, which often leads to creative judicial decisionmaking. Likewise, there are documented and widespread problems from a bureaucratic justice perspective in the administration of federal immigration law—so much so that one empirical studycalls it “refugee roulette.” In other words, federal courts get creative because immigrants face severe consequences yet are often unrepresented, immigration judges are overworked, and there are lots of inconsistencies across judges and immigration courts.

I have observed these benefits in my own administrative law scholarship that has focused on immigration law. For instance, in a study on the ordinary remand rule, I uncovered a judicial toolbox for agency dialogue that can be applied in a variety of other regulatory contexts. And just this week I posted a draft of a short “adlaw prof’s” response to an article by former Attorney General Gonzales and an Office of Litigation attorney on the AG’s referral and review authority in immigration adjudication. My response focuses on how the AG’s referral authority is yet another dialogue-enhancing tool for courts to have a more systemic effect on agency adjudication and decisionmaking more generally.

Finally, immigration scholars have explored empirically a number of questions that are of interest to administrative law scholars more generally—and have experimented with myriad methodological approaches to explore those questions that could be adapted to other regulatory contexts. As I have blogged about before here, in A National Study of Access to Counsel in Immigration Court, recently published in the University of Pennsylvania Law Review, Professor Ingrid Eagly and Steven Shafer tackle the important issue of legal representation in immigration court, showing how counsel makes a difference in win rates. In The Failure of Immigration Appeals, also forthcoming in the University of Pennsylvania Law ReviewDavid Hausman examines the effectiveness of the Board of Immigration Appeals and the federal courts of appeals at promoting uniformity and consistency among immigration judges. Hausman finds that BIA and federal circuits do not promote consistency and uniformity among immigration judges, and that may be due in part to discrepancies among immigration judges in allowing time for immigrants to obtain legal counsel.

Another empirical study by Professor Eagly—Remote Adjudication in Immigration, which was recently published in the Northwestern University Law Review—looks at the use of video teleconferencing for immigration adjudication hearings. The short answer is that video hearings may not be a good thing for those being adjudicated. And finally, as I discuss in my response to their article, Fatma Marouf and Michael Kagan have done terrific empirical work on immigration stays of removal and circuit disparities

In sum, from a scholarly perspective there are serious costs to immigration exceptionalism, and both immigration law and administrative law would benefit greatly by the death of immigration exceptionalism—at least as a matter of scholarly attention and doctrinal cross-fertilization. Hopefully that will change, as I anxiously await immigration’s version of Jerry Mashaw’s Bureaucratic Justice!


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