Judicial Review of Disproportionate (or Retaliatory) Deportation

48 Pages Posted: 29 Aug 2018 Last revised: 1 Nov 2018

See all articles by Jason A. Cade

Jason A. Cade

University of Georgia School of Law

Date Written: April 20, 2018


This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even as they uphold government enforcement decisions. They help motivate advocates, promote inter-branch dialogue, and provide progress toward judicial innovation. This Article focuses particular attention on this steps-on-the-way function, suggesting how the concerns these courts have expressed may one day soon produce a greater measure of judicial scrutiny of removal decisions on proportionality grounds.

Keywords: Hybrid Constitutional Claims, Deportation, Removal, Arbitrary, Capricious, Proportionality, Retaliation, First Amendment, Selective Enforcement, Prosecutorial Discretion, Due Process, Department of Homeland Security, Padilla v Kentucky, Arizona v United States, Crimmigration, Immigration, Executive

JEL Classification: K14, K23, K33, K40, K41, K42, D73, J61, F22, L22

Suggested Citation

Cade, Jason A., Judicial Review of Disproportionate (or Retaliatory) Deportation (April 20, 2018). 75 Wash. & Lee L. Rev. 1427 (2018), University of Georgia School of Law Legal Studies Research Paper No. 2018-37, Dean Rusk International Center Research Paper No. 2018-08, Available at SSRN: https://ssrn.com/abstract=3170751

Jason A. Cade (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States
(706) 542-5209 (Phone)

HOME PAGE: http://www.law.uga.edu/profile/jason-cade

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