Executive Control of Agency Adjudication: Capacity, Selection and Precedential Rulemaking

35 Pages Posted: 30 Apr 2021

See all articles by David Hausman

David Hausman

Stanford University, Department of Political Science; Stanford Immigration Policy Lab

Daniel E. Ho

Stanford Law School

Mark Krass

Stanford Department of Political Science; Stanford Law School

Anne M McDonough

RegLab, Stanford Law School

Date Written: April 19, 2021

Abstract

While the volume of adjudication by federal agencies far outstrips the volume of cases decided by the federal judiciary, researchers have devoted relatively little attention to agency adjudication and political control thereof. We study three mechanisms of presidential control of immigration adjudication: capacity-building, selection, and precedential rulemaking. First, consistent with work on bureaucratic capacity, the Trump administration achieved its goal of increasing removals of noncitizens through an unprecedented increase in total hiring of immigration judges. Second, contrary to expectations from the literatures on judicial behavior and bureaucratic politics, we find little evidence of partisan effects in immigration judge selection. Third, we demonstrate the substantial power of what we call “precedential rulemaking” – the power by the Attorney General to select cases in which to issue binding precedent. These results illustrate the importance of incorporating mechanisms of supervisory and legal control into the study of administrative courts.

Keywords: administrative law, administrative adjudication, immigration

JEL Classification: K27

Suggested Citation

Hausman, David and Ho, Daniel E. and Krass, Mark and McDonough, Anne, Executive Control of Agency Adjudication: Capacity, Selection and Precedential Rulemaking (April 19, 2021). Available at SSRN: https://ssrn.com/abstract=3830897 or http://dx.doi.org/10.2139/ssrn.3830897

David Hausman (Contact Author)

Stanford University, Department of Political Science ( email )

Stanford, CA 94305
United States

Stanford Immigration Policy Lab ( email )

30 Alta Road
Stanford, CA 94305
United States

Daniel E. Ho

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-723-9560 (Phone)

HOME PAGE: http://dho.stanford.edu

Mark Krass

Stanford Department of Political Science ( email )

Stanford, CA 94305
United States

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305
United States

Anne McDonough

RegLab, Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305
United States

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