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, […]
In many ways, the burgeoning study of the bounds of the President’s power lies at the intersection of administrative and immigration law. A related area in which I have a special interest is the exercise of power by officials below the level of the president. In my view, the rich literature on agencies’ activity is […]
Donald Trump’s suggestion that we temporarily ban Muslim immigrants from entering the country sent shockwaves through the American psyche. Yet even more shocking, to some, is that Trump’s idea might be constitutional. For more than a century, the Supreme Court has crafted and maintained special doctrines for immigration that depart from mainstream legal norms. If […]
The exercise of prosecutorial discretion or “PD” is an important feature in the immigration system. It requires each DHS component to make decisions about whether a person legally eligible for immigration enforcement should still be allowed to reside in the United States on a temporary basis. PD recognizes that in a universe of limited resources, […]
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 […]
What kind of law is immigration law? Is immigration law its own, exceptional creature, independent of all other areas of law? Or, is immigration law more porous, absorbing features of other closely related areas of law? Questions like these have challenged immigration law for some time. Even going back to the Nineteenth Century, the Supreme […]