Behind the Scenes of St. Cyr and Zadvydas: Making Policy in the Midst of Litigation

Abstract

In 2001, the Supreme Court decided INS v. St. Cyr and Zadvydas v. Davis. In this paper, I look behind the scenes of St. Cyr and Zadvydas at the executive branch activity that shaped key policy decisions. This account adds a new perspective to the scholarship that considers the relationship between DOJ litigators and their client agencies. The usual assumption is that Justice Department lawyers are divorced from the process of policy formation, and that they enter the picture long after the basic policy decisions have been made. But as DOJ was litigating St. Cyr and Zadvydas, it was also implementing some important statutory amendments enacted in 1996. Executive branch implementation of the 1996 statutes provides a glimpse of policy deliberations that were thoroughly enmeshed with contemporaneous litigation, a situation that expands the institutional role and enhances the influence of DOJ.

Policy development and litigation strategy intertwine to an unusual degree in the immigration context for two reasons. First, the DOJ "owns" immigration policy and exercises supervisory authority over the INS and the Executive Office for Immigration Review. These agencies must solicit input and secure approval from various DOJ components before they act. Control over immigration policy and the litigation defending it converges at the upper echelons of the Department. Second, habeas corpus jurisdiction brings DOJ litigators to the table early on and enlarges their role.

There are risks of an overlap between policymaking and litigation. Litigation tends to heighten the adversarial nature of a policy dispute and cement an agency's stance. Litigation-oriented counseling also imbues a court-centered focus on policy deliberations.

JEL Classification: K23, K19