Immigration Reading from the Harvard Law Review

The Supreme Court issue of the Harvard Law Review is out.  There are notes on two cases that might be of special interest to ImmigrationProf readers.

Department of Commerce v. New York
By the Harvard Law Review
In Department of Commerce v. New York, the Court held that the Department of Commerce’s decision to add a citizenship question to the U.S. census was pretextual, and remanded to the agency, in contrast to its usual approach of using arbitrary and capricious review to determine when agency decisions are overly influenced by politics. Because of the case’s unusual facts, including the Department’s deadline for adding the question, the Court’s analysis seems unlikely to influence future cases. Still, this Comment argues that the Court’s opinion missed an opportunity to explain when agency decisions are too political and failed to convincingly distinguish its finding of pretext from its arbitrary and capricious analysis.

Nielsen v. Preap
By the Harvard Law Review
In Nielsen v. Preap, a five-Justice majority held that a federal statute prohibited a bond hearing for certain immigrants detained years after their release from criminal custody — notwithstanding the government’s statutory obligation to detain those immigrants when released from custody. In reaching this conclusion, the Court ignored Chevron, substituting a different rationale for deference in its place. In ignoring Chevron, Preap joins many of the Court’s immigration detention cases. But it misses an opportunity to explain the avoidance.

KJ