Why Cost/Benefit Balancing Tests Don't Exist: How to Dispel A Delusion that Delays Justice for Immigrants

Abstract

In 2022, the U.S. Supreme Court nullified its earlier presumption that indefinite immigrant detention without bond hearings is unconstitutional under Zadvydas v. Davis. If Zadvydas is a nullity, those who raise due process balancing tests during the post-removal-period in immigrant habeas review may need to find new grounds for review. However, since Boumediene v. Bush was decided in 2008, there are several reasons not to despair Zadvydas’s demise.

For one, Zadvydas spoke to an extremely narrow subset of cases. It granted a concession under the Due Process Clause to immigrants detained beyond the statutory 90-day removal period. It decided that indefinite immigrant detention is likely unconstitutional, and that therefore the statute must have a judge-made six month time limit after which the government must present evidence of reasonable cause to continue an indefinite detention.

However, in 2018 Jennings v. Rodriguez did not extend Zadvydas’s six month presumption, suggesting it was arbitrary. Jennings went further to rework constitutional avoidance doctrine in such a way that it, and the judicial duty to say what the law is under Marbury v. Madison itself, may no longer exist. Jennings decided that as long as a statute is clear, then it should go into force whether or not it conflicts with the U.S. Constitution.

In other words, Jennings limited Zadvydas to its facts and failed to address the constitutional question it was briefed to answer. Nevertheless, several district courts began to answer this constitutional question themselves by extending due process balancing tests to grant Zadvydas-like relief to asylum seekers. If Zadvydas is overturned, these fractured attempts at providing immigrant habeas corpus may be cut off by the Court.

This article will explain why there is still hope for detained asylum seekers. The U.S. Supreme Court may upset stare decisis, constitutional avoidance, and its duty to say what the law is. It might completely misinterpret what is actually “due” process. But its imprudent behavior—its disrespect for its own precedent—is causing it to lean directly into the Suspension Clause, Boumediene v. Bush, and the pro-immigrant writ of habeas corpus that existed in 1789.

Keywords: mathews v. eldridge, Daniel Kahneman, Amos Tversky, irrationality, self-interest, cost/benefit balancing tests, immigrant habeas corpus, Boumediene v. Bush

JEL Classification: K00, K10, K37