The US Supreme Court and Immigration

202 Pages Posted: 15 Nov 2022

Date Written: July 27, 2011

Abstract

In the first part of this work, I emphasized that the general trend of judicial self-restraint rests on two main pillars. The first is deference to congress, and the second is deference to the executive. From one hand, the U.S. Supreme Court deferred to the Congress mainly through its own invented plenary power doctrine, which was established in the end of the 19th century, and it is still in force today, in spite of all the negative repercussions that coupled its enforcement mainly on institutional immigration law and on alien’s constitutional rights.
From the other hand, the Court deferred to the executive branch through different modes of deference like chevron, and pre-chevron deference modes. Although these modes of deference can have important reasons that support their use, these modes created side effects mainly the superficial and mechanic reading of the law, while ignoring widely international humanitarian law and international human rights instruments.
In the second part, where I treated the trend of relative activism, I noticed that this activism has two main expressions. The first is that the Supreme Court read the constitution sometimes generously for the alien: to ensure non discrimination on the basis of alienage and to secure procedural due process in deportation. Nevertheless these constitutional guarantees remain widely precarious as they are conditioned with some presence related requirements and because of the inherently limited nature of these guarantees that could have never stopped the plenary power doctrine for example.
The second expression of this relative activism, is that the Court tried to engage into statutory interpretations to promote alien’s status. And that was only feasible through the implementation of canons of statutory interpretation, like the avoidance canon, and rule of lenity in immigration among others. In doing so the U.S. Supreme Court revealed to be relatively activist in the protection of aliens. However, this statutory protection had as main shortcomings that it produced unpredictable, temporary and awkward solutions to the wider problems of immigration. Nevertheless, debate continues to prove the positive effect of this statutory protection as producing long-term predictable solutions.

Keywords: immigration, US Supreme Court

JEL Classification: K37

Suggested Citation

Ennouri, Belhassen, The US Supreme Court and Immigration (July 27, 2011). Available at SSRN: https://ssrn.com/abstract=4266145 or http://dx.doi.org/10.2139/ssrn.4266145

Belhassen Ennouri (Contact Author)

University of Carthage ( email )

Tunis
Tunisia

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