The Attorney General’s Disruptive Immigration Power

Abstract

This essay responds to a piece by former Attorney General Gonzales and an Office of Immigration Litigation attorney advocating more frequent use of the Attorney General's "referral and review" mechanism. First, it disputes the authors' fundamental characterization of the referral and review mechanism as a purely political tool, like other forms of executive discretion. Second, it challenges the authors' supposition that the referral and review mechanism has contributed to a stronger immigration framework by aggregating information that shows how the recent usage of this tool has disrupted the consistent development of immigration law by the judiciary, Congress, and agencies themselves. This essay concludes, briefly, by noting how additional exploration of the referral and review mechanism could advance the investigation of immigration law's distinctive identity, including the extent to which it is both excused from and beholden to general tenets of administrative law.

Keywords: administrative law, adjudication, immigration, executive power, Attorney General, Department of Justice, Department of Homeland Security