Executive Defiance and Judicial Review in Immigration Law
Date Written: July 8, 2020
The dominant narrative in immigration law points to the existence of overwhelming executive power and limited judicial review. But where judicial review exists, the courts are active. Federal courts are playing a direct role in shaping the implementation of executive immigration policy today, even as that landscape reveals fractured, tense and evolving interactions between the executive and judicial branches. In a system in which access to the federal courts is restricted but active, and executive power over its regulated subjects intense yet litigated, how might or should courts respond when the executive does not comply with the judiciary? After all, a basic assumption in our legal system is that once the courts issue an order, the government will in fact comply.
But noncompliance happens—and in immigration law, in ways that implicate core liberty interests. This Essay examines the question of executive noncompliance with–and defiance of – judicial orders in the immigration context. It highlights three categories of executive disobedience that have emerged in the immigration context: (1) the Board of Immigration Appeal’s recent refusal to adhere to a Seventh Circuit order; (2) cases in which the government has wrongfully deported individuals despite court order; and (3) the question of agency litigation conduct that violates litigation norms, such as failure to adhere to court-ordered deadlines or misstatements to the courts. While the judicial branch can and should respond with reasonable vigilance to episodes of administrative disobedience, the judiciary is not fully equipped to unilaterally monitor executive recalcitrance. It is therefore necessary to address structural factors in the immigration context that facilitate executive disobedience, factors that are both unique to and predate the current President.
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