Article: The Rush to Limit Judicial Review By Jill E. Family

Jill Family has a short article on the court stripping (yes, there are more immigratiuon cases that can be taken from the courts) in current immigration reform legislation.  It starts like this:

Access to an independent judiciary with the power to hold the government accountable in its dealings with individuals is a founding principle of the United States. In contrast, imagine a system where there is no access to independent judgment; where, instead, the referee works for the opposing team. The House of Representatives took a step away from this founding principle by passing the Border Protection, Antiterrorism, and Illegal Immigration Control Act (H.R. 4437) on December 16, 2005. A provision of the bill would erode access to independent judgment by severely restricting access to the federal courts for individuals in removal (deportation) proceedings. This provision is part of a long string of efforts by proponents of restrictive immigration policies to limit the jurisdiction of the federal courts over immigration cases. H.R. 4437 would impose a “certificate of reviewability” requirement1 for people challenging their orders of removal in federal court. The requirement would add to the already extensive limits on what kinds of removal cases the federal judiciary may review and when the federal courts may hear those cases. Under the certificate-of-reviewability regime, the federal courts are accessible to individuals fighting removal only if a federal court judge, acting as a gatekeeper, first grants permission. The judge may grant that permission only if the individual seeking independent judgment can prove worthy of independent judgment by making a substantial showing of likely success. If this single gatekeeper judge fails to act on the request within a short timeframe, the request is denied automatically. In addition, the government is not required to defend its actions to the independent court unless the certificate of reviewability is granted. This amounts to a system in which an individual can ask for independent judgment, but there is no right to actual judgment on the challenged executive (administrative) action.

Click here for Jill’s full article.

KJ