Bans, Borders, and Sovereignty: Judicial Review of Immigration Law in the Trump Administration
61 Pages Posted: 1 Sep 2017 Last revised: 10 Nov 2017
Date Written: August 30, 2017
President Donald Trump’s Executive Orders (EOs) limiting entry into the U.S. have already reached the Supreme Court. September 2017’s EO-3, which indefinitely barred immigration of nationals from listed countries, has raised profound questions about the political branches’ role in immigration and the nature of judicial review. The Court’s longstanding model of deference to the political branches is showing strain. Unfortunately, the model advanced by frequent critics of the Court’s deferential approach – the normalization approach for the convergence of immigration and domestic law – throws out the baby with the bathwater, unduly discounting the foreign policy dimension of immigration measures.
To fill the gap, this Article proposes a model of shared stewardship. Shared stewardship springs from the Framers’ vision that governance is a trust. When the political branches exhibit the habits of deliberation that the Framers linked with sound governance, courts should not intervene. However, when those habits of deliberation fail, courts should exercise the independent judgment that Hamilton viewed as their signature virtue. This model centers on the crucial decision in judicial review: the closeness of means-end fit that courts should require. To answer this question, shared stewardship proposes a three-pronged model: 1) degree of sovereign interest, 2) number and intensity of collateral impacts, and, 3) intelligible limits. Because of the absence of a coherent limiting principle, EO-3’s indefinite ban on immigration subverts the overarching scheme of the Immigration and Nationality Act.
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