Supreme Court Comments in the Harvard Law Review on Major Immigration Decisions
The Supreme Court issue (Issue 1, November 2020) of the Harvard Law Review has some comments on major Supreme Court decisions from the 2019 Term.
Department of Homeland Security v. Thuraissigiam EXPEDITED REMOVAL
By the Harvard Law Review
In Department of Homeland Security v. Thuraissigiam, the Supreme Court held that the limited judicial review afforded to a noncitizen challenging an expedited removal order did not violate his rights under the Suspension Clause. In upholding this regime of limited judicial review, the Court anchored its reasoning in the original meaning of the Suspension Clause. But the discussion of recent habeas precedent in the majority opinion drives methodological confusion, opens the door to narrow interpretations of post-Founding habeas cases in future challenges, and potentially deepens the impact of increasingly expansive immigration restrictions.
United States v. Sineneng-Smith FIRST AMENDMENT
By the Harvard Law Review
In United States v. Sineneng-Smith, the Supreme Court heard argument on whether 8 U.S.C. § 1324(a)(1)(A)(iv) — which criminalizes “encourag[ing] or induc[ing]” a noncitizen or nonnational “to come to, enter, or reside in the United States, knowing or in reckless disregard” of the illegality of doing so — was unconstitutionally overbroad. The Court ultimately decided Sineneng-Smith on procedural grounds, holding that the Ninth Circuit abused its discretion in appointing three amici to brief and argue legal issues not raised by the parties. By punting on the merits issue, the Court missed an opportunity to clarify for the first time the point at which protected abstract advocacy becomes criminal solicitation, instead leaving a patchwork regime of conflicting and flawed lower court tests unresolved.
Department of Homeland Security v. Regents of the University of California DACA
By the Harvard Law Review
In Department of Homeland Security v. Regents of the University of California, the Supreme Court invalidated the rescission of the Department of Homeland Security’s policy of Deferred Action for Childhood Arrivals (DACA). After careful review of the agency record, the Court found that the agency failed to adequately explain the basis for its decision and to consider reliance interests. In contrast, the Court dismissed the argument that the decision to rescind DACA was motivated by a desire to discriminate against Latinos. The Court’s brief analysis of the equal protection claims both construes precedent narrowly and reveals tensions latent in the Court’s conception of the President’s role in agency decisionmaking.
Hernández v. Mesa BORDER SHOOTING
By the Harvard Law Review
In Hernández v. Mesa, the Supreme Court continued its trend of narrowing the Bivens doctrine by denying a cause of action to the parents of a Mexican teenager who was shot and killed by a Border Patrol agent. In doing so, the Court failed to fully grapple with the case’s similarity to Bivens, ignored the fact that the constitutional concerns it cited might require overruling Bivens altogether, and provided no rationale as to why damages pose a greater threat to the separation of powers than do injunctions. Hernández ultimately serves as another illustration of the Court’s failure to hold rogue government officials accountable for constitutional violations.