Judging Immigration Equity: Deportation and Proportionality in the Supreme Court
80 Pages Posted: 4 Sep 2016 Last revised: 2 Feb 2017
Date Written: March 11, 2016
Though it has not directly said so, the United States Supreme Court cares about proportionality in the deportation system. Or at least it thinks someone in the system should be considering the justifiability of removal decisions. As this Article demonstrates, the Court’s jurisprudence across a range of substantive and procedural challenges over the last fifteen years increases or preserves structural opportunities for equitable balancing at multiple levels in the deportation process. Notably, the Court has endorsed decision makers’ consideration of the normative justifiability of deportation even where noncitizens have a criminal history or lack a formal path to lawful status. This proportionality-based lens helps unify the Court’s seemingly disparate decisions regulating the immigration enforcement system in recent years. It also has implications for deferred action enforcement programs such as the DACA program implemented by President Obama in 2012. The Court’s general gravitation toward proportionality analysis in this field is sound. Nevertheless, there are drawbacks to the Court’s approach, and the cases are probably best seen as signals to the political branches that the deportation system remains in dire need of wide-ranging reform.
Keywords: immigration, deportation, proportionality, DACA, DAPA, Supreme Court, enforcement discretion, crime, criminality, categorical approach, due process, Arizona, SB 1070, Moncrieffe, Judulang, Padilla, Torres, Texas, Mellouli, Carachuri-Rosendo, Kucana, Mata, Dada, St. Cyr, Vartelas, Nijhawan, Rodriguez
JEL Classification: K14, K23, K33, K40, K41, K42, D73, J61, F22, L22
Suggested Citation: Suggested Citation