Abstract

President Donald Trump’s Executive Order has spurred intense debate and litigation that in June, 2017 reached the Supreme Court. The revised Refugee Executive Order, along with the “extreme vetting” that the Trump Administration has begun to roll out as a permanent fixture of the immigration system, has raised profound questions about the political branches’ role in immigration and the nature of judicial review. Raising the stakes, in a June, 2017 decision, Sessions v. Morales-Santana, the Court invalidated a gender-based statute on acquiring citizenship – a rarity since the Court has typically conceded the political branches “broad power” over most immigration decisions.

The intersection at the Supreme Court of the Trump Executive Order and the invalidation of a statute in Morales-Santana demonstrates the need for a new model of judicial review in immigration law. As Morales-Santana and the Court’s order upholding in part injunctions against the Trump Executive Order demonstrate, the Court’s longstanding model of deference to the political branches is showing strain. Unfortunately, the model advanced by frequent critics of the Court’s deferential approach – the normalization approach for the convergence of immigration and domestic law – throws out the baby with the bathwater, unduly discounting the foreign policy dimension of immigration measures.

To fill the gap, this Article proposes a model of shared stewardship. Shared stewardship springs from the Framers’ vision that governance is a trust with duties that officials owe to the public. When the political branches exhibit the habits of deliberation that the Framers linked with sound governance, courts should not intervene. However, when those habits of deliberation fail along with stewardship of the political branches, courts should exercise the independent judgment that Alexander Hamilton viewed as their signature virtue. This model centers on the crucial decision in judicial review: the closeness of means-end fit that courts should require.

To answer this question, shared stewardship proposes a three-pronged model:

1) degree of sovereign interest,

2) number and intensity of collateral impacts, and,

3) intelligible limits.

Shared stewardship would facilitate fresh insights on extreme vetting, the Trump Executive Order, gender-based distinctions, and a recurring issue in immigration: the retroactive application of grounds for removal.

KJ