There are many situations where the administrative paradigm responds to the challenges of immigration. This is especially the case when the government issues visas to enter the country, as in Scialabba v. Cuellar de Osorio, or discretionary benefits such as deferred measures and work permits, as in US v. Texas. Administrative law could be a useful alternative approach to cases such as Kerry v. Din. In this case, the court upheld the denial of a visa for security reasons, but no more than three judges were able to agree on a single justification for the decision, while four judges disagreed. The fragmented result illustrates the exhaustion of the persuasive power of the traditional plenard doctrine among judges. At the same time, the Court is understandably reluctant to fully involve the judiciary in deciding who can enter the United States. As Chris Walker explains, administrative law offers a plethora of doctrinal methods by which courts can leave executive agencies in charge, but without completely eliminating the possibility of meaningful judicial review. This seems to be a much better approach to the post-Zadvydas world than the old Whatever-Congress-says-goes-approach of the era of plenary power (to paraphrase Knauff v.
Shaughnessy). This article analyses immigration issues related to non-legislative legislation and makes three main contributions. First, it sheds new light on the negative effects of guidance by examining administrative law through the lens of immigration law. In immigration law, the disadvantages of guides manifest themselves in the context of some of life`s most fundamental questions: where and with whom to live and work. Second, by showing how administrative law manifests itself in immigration law, this article concludes that immigration law issues cannot be separated from the general administrative law debate over non-legislative regulations. Thirdly, this article also evaluates a new procedure in immigration law: the draft memorandum for opinion. The draft memorandum for the comment procedure allows the public to comment on the draft guidelines, but does not provide full protection for the rules on notification and comments. While the new procedure is a pragmatic and positive step for immigration law, this article emphasizes that non-legislative rules are not the only administrative tool available and advocates a higher priority for the establishment of notice and opinion rules in immigration law. Immigration law is now torn between two competing alternative paradigms and with the remnants of traditional authority. An alternative paradigm is certainly administrative law. In a way, administrative law was always in the background.
As Alina Das observed, the government has increasingly turned to administrative doctrines to protect its immigration decisions from judicial review. Where the government may have cited the case of Chinese exclusion in the past, the government will now cite Chevron or Heckler. To put it bluntly, the EPA, FDA, VA, NLBRB, and the myriad of other agencies that are at the center of administrative law do not operate private detention facilities. In contrast, Immigration and Customs Enforcement (ICE) arrests more than 400,000 people a year. The draconian use of state force inherent in immigration law enforcement raises constitutional concerns very different from those of the regulatory contexts created by Chevron, Skidmore, Overton Park, Auer, Brand X and the other major administrative law cases. But that doesn`t mean immigration is an island in itself. We have very well developed legal doctrines to regulate deprivation of liberty, as should be the case in the application of immigration law. This is what we call a criminal procedure. This is the other paradigm that is now competing to advance the development of immigration law.
The main reason for the decline in the perception of immigration is that the power of attorney is “subject to significant constitutional restrictions,” as the Supreme Court stated in Zadvydas v. Davis. We do not yet have a complete picture of all these constitutional restrictions. We also know that the power of the plenary has not completely disappeared, although it has become more difficult to describe exactly what doctrine means today. But since power historically distinguishes immigration from other areas of law, it is natural that immigration law should seem less extraordinary when the power of the plenary assembly diminishes. Administrative law therefore offers a great deal for immigration, and it deserves the new interest it is receiving from immigration specialists. However, it is also important not to reflexively apply administrative law approaches in all situations. Especially when individual liberty is at stake, the last thing we want the courts to submit to the executive at the expense of due process. Administrative law does not have all the answers, but it does have some. For researchers, the close links between immigration and criminal law have led to the development of the literature on immigration (as well as an indispensable blog on the subject). The Supreme Court has recognized these links in a number of ways.
In United States v. Salerno, the court compared pretrial detention in criminal cases to immigration detention. In Padilla v. Kentucky, the Supreme Court directly compared the serious human consequences of deportation to a criminal prison sentence. The Court also expanded the use of the categorical approach in interpreting grounds for deportation, a legal doctrine that shares immigration law with federal criminal law. But we must remember that plenary power diminished largely because the Supreme Court was less willing to tolerate the cost of civil liberties that accompanied unfettered state authority over individuals. This was the main problem in Zadvydas. But if this is the central problem of the power of attorney in plenary, it is not certain that administrative law is a completely satisfactory substitute. Administrative law does not have the tools to deal with the loss of individual freedom inherent in immigration imprisonment. (Prof.
This illustrates this issue very well in the context of habeas examination of immigration detention.) Immigration law lags behind in the development of public law, but not in all respects. While immigration law is idiosyncratic in many ways, this article finds immigration law in administrative law when it comes to its problems with non-legislative rules (sometimes called guides).