Immigration Article of the Day: Regulated Immigrants: An Administrative Law Failure by Jill E. Family

The Immigration Article of the Day is “Regulated Immigrants: An Administrative Law Failure” by Jill E. Family, forthcoming in the Howard Law Journal and available on SSRN here.

Here is the abstract:

Congress’ grandest reform of administrative law recently celebrated its 75th birthday. The Administrative Procedure Act (APA) is regarded mostly as a success that set the stage for modern federal governance. This article uncovers a major flaw. The APA has failed to establish a deportation system that satisfies administrative law process values.

In retrospect, this failure is not surprising given that Congress never fully integrated immigration law into administrative law. The unique nature of regulating immigrants was not a driving force in the creation of the APA. Instead, the APA was molded by concerns about the New Deal and the increasing power of the federal government over industry. The regulation of human beings by deciding some of life’s most basic questions, including whether someone could live with immediate family members, simply was not the focus of reformers. Even once enacted, the APA never had much of a chance to shape deportation adjudication. Shortly after the APA’s enactment, Congress exempted deportation adjudication from the APA and created a parallel administrative law universe. This alternative structure has resulted in an adjudication system that is inefficient, unacceptable, and only questionably accurate.

Even if the APA applied to deportation proceedings, that would not fix what ails the system. Administrative law, as currently formulated, lacks the right doctrines to regulate the regulation of immigrants. New principles are necessary. To develop these new doctrines, we need to divorce immigration law from the administrative law debates that are charged with arguments about the power of the federal government to regulate the economy. The construction of new principles should be guided by the extreme power imbalance between the government and the regulated parties in immigration law, the effect of the regulation on fundamental issues of human existence, the prominent role of detention in civil immigration adjudication, and the lack of decisional independence for immigration adjudicators.

IE