Courts vs. the Political Branches: Immigration 'Reform' and the Battle for the Future of Immigration Law

Abstract

When the topic of immigration reform is discussed, the focus is usually on the efforts of the political branches, particularly Congress. The role of the judiciary is typically ignored or mischaracterized. In this Article, Professor Slocum discusses the role of the judiciary with regard to immigration reform and argues that the judiciary's efforts in one area of immigration law in particular, judicial and administrative review, have been largely underestimated. Through various methods, the judiciary has thwarted many of the efforts of the political branches to reform judicial and administrative review by precluding or diminishing review. While significant, the judiciary's efforts are not completely satisfying for two reasons. First, the judiciary's decisions have rested on nonconstitutional grounds, leaving areas of judicial and administrative review in need of further reform. Second, the judiciary's primary focus on judicial and administrative review has ignored the equally fundamental ways in which immigration law fails to conform to the rule of law.

Keywords: immigration, statutory interpretation, canons, constitutional law

JEL Classification: K19