Antonio De La Rosa-Rodriguez v. Merrick B. Garland, Brief of Separation of Powers Clinic as Amicus Curiae in Support of Neither Party

Abstract

Amicus takes no position on the underlying statutory issue in this case but instead urges the en banc Court to expressly reject the notion of “hypothetical statutory jurisdiction.”

Hypothetical statutory jurisdiction is inconsistent with Supreme Court caselaw and the Constitution, illogical on its own terms, and causes significant detrimental consequences.

If this Court merely proceeds to resolve the underlying jurisdictional issue in this case without first forcefully rejecting the doctrine of hypothetical statutory jurisdiction, future panels could still assume hypothetical statutory jurisdiction to resolve merits issues. The en banc Court should squarely foreclose that possibility.

Keywords: Jurisdiction, Judicial Review, Separation of Powers

JEL Classification: K1, K40