Immigration Article of the Day:Textualism’s Immigration Problem: Stabilizing Interpretive Rules on Noncitizens’ Rights and Remedies by Peter Margulies

Textualism’s Immigration Problem: Stabilizing Interpretive Rules on Noncitizens’ Rights and Remedies  by Peter Margulies

Abstract

Instability and shifting coalitions have marked the Supreme Court’s recent statutory immigration cases. In decisions for the noncitizen and the government alike, the most salient attribute has been a superficial view of the Immigration and Nationality Act (INA). This Article diagnoses the problem in a phenomenon that social scientists call “noise.”

Consider Barton v. Barr from 2020, in which the Court, in an opinion by Justice Kavanaugh, reduced relief for lawful permanent residents (LPRs) who had committed criminal offenses that made them removable. The Court limited access to a remedy called cancellation of removal, which allows many LPRs to keep their families together in the United States. Yet, the Court’s reasoning did not fit LPRs, whose stake in the country Congress has long recognized.

Barton is not the only case that skews the INA’s text, structure, and statutory history. Indeed, in approximately 75% of all recent divided statutory cases, the Court disregarded established practice and relied on artificial distinctions. The cascade of poorly reasoned statutory immigration decisions from the Supreme Court is an instance of “noise” in expert judgment. As Daniel Kahneman, Olivier Sibony, and Cass Sunstein show in their insightful study, Noise: A Problem in Human Judgment, skilled professionals such as judges, doctors, and forensic analysts display alarmingly wide swings in judgment, both in their individual assessments and in how their findings compare with their peers.

In all cases of noise, overconfidence is a prime culprit. First impressions have an undue influence, impeding a fresh look at problems. Overconfidence is also evident in Supreme Court decisions. While the Court typically addresses arguments for opposing positions, this internal colloquy always seems stylized and staged, lacking a strong commitment to rethinking assumptions. Without such a commitment, noise continues to drown out sound decision making.

To remedy noise and reduce error in statutory immigration cases, the Article suggests a new model, textual stewardship. This model sequences the process of statutory construction, allowing a fresh look that includes a more comprehensive examination of the INA’s framework. It also considers text, structure, and—in carefully cabined situations—legislative history. Because textual stewardship mandates a sequential approach, it also tempers the influence of first impressions. While textual stewardship cannot guarantee right answers in all cases, it can increase the odds that Justices will ask the right questions.

KJ