Eric S. Fish (University of California, Davis – School of Law) has posted Deportation in the Deep State (forthcoming, Stanford Law Review) on SSRN. Here is the abstract:
Since 1997, low-level immigration agents have conducted fast-paced deportation hearings. These hearings, called Expedited Removals, circumvent the formal immigration court process. They involve an immigration agent interviewing an immigrant and deciding whether to order them deported, with no opportunity for appeal. Expedited Removals currently produce more than half of all deportation orders. And they are the centerpiece of President Trump’s ongoing mass deportation campaign. If the Trump Administration succeeds in its current aims, Expedited Removals will soon comprise nearly the entire deportation system.
Expedited Removals are also unconstitutional, based on the Supreme Court’s reading of the Article II Appointments Clause. In recent decisions, most notably Lucia v. SEC and U.S. v. Arthrex, the Court has strengthened the requirements for wielding executive branch power. Any executive employee who exercises “significant authority” under the laws of the United States must be either a Principal Officer appointed by the President and confirmed by the Senate, or an Inferior Officer appointed by a department head. And all final Executive Branch decisions must be subject to review by a Principal Officer. Low-level immigration agents do not satisfy these conditions. By conducting removal proceedings and issuing unreviewable deportation orders, they exercise authority reserved to Principal and Inferior Officers.
Yet there is no clear mechanism to bring an Appointments Clause challenge to the Expedited Removal system. Congress foreclosed judicial review through a series of jurisdiction-stripping provisions. This means Expedited Removal effectively exists outside of the Constitution. By cutting off review, the government has created a zone of lawlessness in which it can deport immigrants without conforming to the Constitution’s requirements. This strategy has effectively excluded immigrants from the Roberts Court’s formalist reshaping of the administrative state. The low-level bureaucrats of the “deep state” can no longer adjudicate patent or securities law claims. But they can still deport immigrants unilaterally and without appeal. The denial of judicial review thus helps resolve a conflict between two conservative political projects: the unitary executive and mass deportation.
Recommended.
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