Stripping Judicial Review During Immigration Reform: The Certificate of Reviewability
45 Pages Posted: 18 Apr 2007 Last revised: 23 Jul 2015
Congress contemplated a drastic change during the 2005-2006 immigration reform debate that sought to narrow access to the federal courts: a proposed certificate of reviewability requirement. The requirement would compel foreign nationals subject to an administrative removal order to obtain permission from a single federal court of appeals judge to access the federal courts. The U.S. House of Representatives endorsed the requirement but the U.S. Senate dropped it from its slate of immigration reform priorities. Why did the requirement disappear from the Senate's agenda during an era of increased congressional restrictions on judicial review of immigration cases?
A definitive answer to such a question may be elusive, but this article sheds some light by examining the fate of the certificate of reviewability from a public policy perspective. This public policy perspective leads to two observations about the legislative history. First, the proponents of the requirement advanced a characterization of the underlying policy problem that conflicted with one advanced by federal court of appeals judges who testified before the Senate Judiciary Committee. There is evidence the judges' definition of the policy problem influenced the committee to turn its back on the requirement. Second, the Senate's attention to other immigration reform policy problems may have distracted the Senate from the requirement. This focus on other policy conflicts meant that the Senate was not attending to the certificate of reviewability.
What can the legislative history of a failed immigration jurisdiction-stripping provision reveal? By examining the legislative history through a public policy lens, this article enhances understanding of the legislative dynamic underlying an effort to strip immigration judicial review.
Keywords: Immigration, Jurisdiction, Courts, Legislation
JEL Classification: K1, K39
Suggested Citation: Suggested Citation