On Counterintuitive Consequences and Choosing the Right Control Group: A Defense of Reno v. AADC
David A. Martin
University of Virginia School of Law
Georgetown Immigration Law Journal, Vol. 14, P. 363, 2000
This essay, a commentary on Professor Neuman's article on the AADC case, agrees with many of Neuman's conclusions. In particular, enforcement actions like those at issue here do not involve viewpoint discrimination, properly understood, and the nationality distinctions at issue should not trigger strict scrutiny. Moreover, the First Amendment may afford somewhat lesser protection in connection with international terrorism, because the government's alternative enforcement options are more limited than in the domestic context. And the new procedures for designating foreign terrorist organizations and clamping tighter controls on all their fundraising, enacted in 1996, receive surprising but deserved support from Neuman, because they afford affected individuals better notice of the legal limitations.
The article parts company with Neuman, however, when he suggests that the key holding in AADC should be read narrowly. The Supreme Court meant to bar a selective enforcement claim as an in limine defense in removal proceedings. Better arguments for this conclusion can be offered than those presented in Justice Scalia's opinion, and the article proceeds to provide a more complete remedial balancing analysis in support of the outcome. In particular, and counterintuitively, INS is likely to take a more generous approach to "deferred action" and other ameliorative uses of prosecutorial discretion, now that that favorable action for one respondent or group will not trigger widespread litigation over selectivity. Stakes analysis also supports the AADC holding. Most of the respondents there were overstays, and overstaying a nonimmigrant visa is not a mere "technical violation," as the lower courts had dismissively claimed. Such enforcement is linked to the fundamental architecture of U.S. immigration controls. In fact those controls are honored by over 99 percent of nonimmigrants admitted, and the lower court's approach demeans these persons' efforts to abide by the law. The stakes analysis in favor of the AADC result is more problematic with regard to lawful permanent residents. If the bar on selective prosecution defenses is justified in that setting, it is because LPRs will almost always be able to raise the First Amendment issue as part of their core defense on the merits against the very charge of deportability.
Accepted Paper Series
Date posted: November 22, 2000
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