Tuesday, September 29, 2020

Implications of Judge Amy Coney Barrett's textualism, deference to executive for immigration law

Suzanne Monyak at Law360 offers this prediction of what immigrationprofs should expect if the Seventh Circuit judge is elevated to the Supreme Court: "U.S. Supreme Court nominee Amy Coney Barrett's tendency to defer to the executive branch's authority could pave the way for the Trump administration to prevail against challenges to its immigration policies." 

Her reasoning is that, while Judge Barrett's record on immigration is mixed (as reported in prior ImmigrationProf blog posts), she has demonstrated "a clear preference for interpreting laws based on their strict textual meaning. And when the text is unclear, she tends to rely on the federal government's own interpretation." This textualist approach could result in narrow adherence to the federal immigration statute, an approach that is often relied on to support restrictionist immigration policies.

"In the immigration space, an expansive view of executive power can translate, frankly, into a blank check to the president about who can immigrate to the U.S.," said Bradley Jenkins, federal litigation attorney at the Catholic Legal Immigration Network Inc.

The Law360 in-depth analysis draws on perspectives from Immprof Blog co-editor Dean Kevin Johnson, Professor Stephen Yale-Loehr, and Professor Jennifer Koh and delves into Judge Barrett's decisions in the public charge case and the consular nonreviewability case. It is one of the most substantive analyses I've seen in this genre since Barrett's nomination.





Current Affairs | Permalink


Post a comment