Executive Defiance and the Deportation State

50 Pages Posted: 3 Sep 2020 Last revised: 2 Aug 2021

See all articles by Jennifer Lee Koh

Jennifer Lee Koh

Pepperdine University - Rick J. Caruso School of Law

Date Written: July 8, 2020

Abstract

A basic assumption in our legal system is that once a federal court issues an order, the government will obey. But the validity of that assumption has been tested over the years, including in the immigration context, and for reasons both related to and separate from the identity of the President. Indeed, understanding the government’s failure to adhere to judicial authority in the immigration context requires an appreciation for the doctrinal, statutory, bureaucratic, and institutional-design factors that have aggrandized the role of the executive branch—both at the level of the President and in the lower ranks of the bureaucracy—in the arena of deportation.

This Feature explores executive defiance in the deportation state. It focuses attention on several categories of executive defiance that have emerged in the immigration context, and at varying levels of the Executive: (1) failure by the Board of Immigration Appeals to follow federal appeals court remands, which implicates the competence of the most robust adjudicatory process in the deportation system; (2) deportations that violate federal court orders, which highlight the power of frontline deportation agents; and (3) agency litigation conduct that violates professional norms, such as misrepresentations to courts or failure to comply with deadlines, where the role of various government lawyers comes into view. The Feature asserts that the judicial branch can and should respond with reasonable vigilance to instances of noncompliance, as can the Executive and Congress. However, the nature of executive defiance points to a need to rethink the underlying factors driving the rise and dominance of the deportation state.

Keywords: deportation, judicial review, removal, defiance, administrative law, immigration, bureaucracy, legal profession, federal courts

JEL Classification: K37, K41, K23, K42

Suggested Citation

Koh, Jennifer Lee, Executive Defiance and the Deportation State (July 8, 2020). 130 Yale Law Journal 948 (2021), UC Irvine School of Law Research Paper No. 2020-66, Pepperdine University Legal Studies Research Paper No. 2021/14, Available at SSRN: https://ssrn.com/abstract=3646513

Jennifer Lee Koh (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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