Deference, Delegation, and Immigration Law

Abstract

The history of immigration jurisprudence is a history of obsession with judicial deference. The foundational doctrine of constitutional immigration law - the plenary power doctrine - is centrally concerned with such deference. This century-old doctrine has been augmented by developments in administrative law that often obligate judges to defer to agencies' factual and legal judgments. Taken together, these constitutional traditions and administrative law trends would appear to make it inevitable that federal courts will passively accept administrative judgments on immigration matters. Yet Judge Richard Posner's recent immigration jurisprudence flips this foundational premise on its head: his immigration opinions exhibit extremely searching review. Rather than reflecting constitutional or administrative law deference, his opinions treat immigration authorities with great skepticism. This short essay, written for a symposium commemorating Richard Posner's twenty-five years on the bench, asks what might account for this unexpected skepticism. The essay suggests two possibilities. The first has to do with democracy, and focuses on the underexplored relationship between Congress and the president in the immigration arena. The second emphasizes institutional competence, and focuses on the relationship between federal judges and the administrative immigration courts.

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