Thursday, January 7, 2016

Is Immigration Law Administrative Law?

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If you weren't able to attend AALS, don't fret. We here at immprof will happily fill you in on what you missed in the world of immigration law.

Thursday morning started with the important question "Is immigration law administrative law?"

Jill Family (Widener Commonwealth) opened the panel by talking about how important this question is. After all, the Supreme Court may soon address it in the Texas v. US litigation.

Chris Walker (Ohio State) kicked things off by questioning "exceptionalism," that is, whether an area of law is so special that it's exceptional and thus separate and apart from administrative law. It's a question that's come up not just in immigration but in IP and tax as well. Walker opined that both immigration and administrative law scholars shouldn't be so quick to think immigration is exceptional. Immigration scholars might benefit from the thinking administrative law scholars have done on important questions like "What do we do with discretion?" and "How can we have systemic effect on agency behavior and not just in a particular case?" He also called on administrative law scholars to look at immigration as a "rich" area for empirical studies of administrative law.

Bijal Shah (NYU) spoke about one specific exercise of bureaucratic power that implicates administrative law, namely the "referral and review" mechanism that allows the Attorney General to refer questions to himself and overturn caselaw. For example, AG Mukasey used this process to resolve a circuit split on whether the forced sterilization of one spouse gave the non-sterilized spouse a basis for an asylum claim. And AG Ashcroft used the process to change the evidentiary burden for showing an alien poses a danger to national security. Shah noted that the R&R process serves as a political tool - it's exercised by a bureaucrat without stakeholder input to shape change in the law. This sort of manipulation of administrative structures -- with attendant procedural and political outcomes -- has been understudied. I, for one, look forward to her continued studies in this area!

David Rubenstein (Washburn) spoke about his work with immprof Deep Gulasekaram (Santa Clara) on immigration exceptionalism. He argued for the need to find a unifying theory that would explain immigration exceptionalims (yes with the s) as they pertain to rights, separation of powers, federalism, and administrative law. Is immigration exceptional in some circumstances but not others? Perhaps. And, if so, what does that mean for an overarching theory? Immigration advocates seem to be "ringing and unringing the exceptionalism bell" as a means to an ends. And that has consequences going forward.

Finally, Shoba Sivaprasad Wadhia (Penn State--University Park) offered a history of the relationship between prosecutorial discretion (PD) and employment authorization. Like Walker, she argued that immigration law "is not exceptional." "Standard administrative law principles apply." Congress has, through INA § 103, given the Secretary of DHS broad discretion to enforce the INA. And that vested authority includes the specifically mentioned right (discussed in INA 274 § (h)(3)) to grant individuals, including those subject to PD, work authorization. The question is how far does that authorization extend - could it cover DAPA and expanded DACA among others? She argued that meaningful reforms (expanding work authorization) can be made without Congress because the statutory framework allows it. But there are policy or, better stated, political consequences to doing that given the strong feelings many have against giving unauthorized migrants the right to work.


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