Labor, Law Enforcement, and 'Normal Times': The Origins of Immigration’s Home within the Department of Justice and the Evolution of Attorney General Control over Immigration Adjudications

Abstract

This article aims to contribute a new perspective to the extensive scholarship historicizing the evolution of immigration law and policy in the United States by examining the 1940 move of the immigration agencies out of the Department of Labor and into the Department of Justice. This initiated a fundamental reorganization of the administrative state surrounding immigration, by moving immigration enforcement and adjudication out of a civilian agency focused on labor standards and other humanitarian concerns into an agency tasked with criminal law enforcement. With this reorganization as context, the second part of this article examines the Attorney General’s power to review immigration adjudications, arguing that the Attorneys General of President George W. Bush worked a profound transformation in the norms and actual use of this power. Specifically, Attorney General review is now accomplished solely via self-referral, a previously rare use of the power that has now become the exclusive means of Attorney General review.

Studying these two issues in tandem reveals an administrative system designed in crisis to respond to the threat of war yet stubbornly persistent in its growth and entrenchment over the years. The historical analysis of this article foregrounds the question of whether these roles are appropriate or whether a reorientation of the purpose and goals of our immigration system around the issues of labor and humanitarian concerns would better serve the individuals within the system and the nation as a whole.

Keywords: immigration, attorney general, labor, department of labor, department of justice, board of immigration appeals