Abstract

Excerpted From: Anthony J. DeMattee, Matthew J. Lindsay and Hallie Ludsin, An Unreasonable Presumption: The National Security/Foreign Affairs Nexus in Immigration Law, 88 Brooklyn Law Review 747 (Spring, 2023) (195 Footnotes) (Full Document)

For well over a century, immigration governance has occupied a constitutionally unique niche within American public law, where it is subject to substantially weaker constitutional constraints than apply in virtually every other context. When the federal government banishes a noncitizen from the country or detains her for months or years at a time, that noncitizen does not enjoy the same right to due process of law to which constitutional “persons” otherwise are entitled. This largely unbounded federal authority was a relatively late historical innovation. It was not until the 1889 Chinese Exclusion Case that the Supreme Court characterized the federal immigration power--until then, an instance of Congress's authority to regulate commerce with foreign nations-- as an “incident of sovereignty belonging to the government of the United States.”  With Congress's authority thus untethered from any enumerated power, and in light of what contemporaries characterized as the “Oriental invasion” then underway in the American West, the Court reasoned that Congress's efforts to secure the nation against “foreign aggression and encroachment” must be “conclusive upon the judiciary.”

Although the Court's immigration opinions have long since ceased referring to invading foreign “races,” its underlying warrant for extraordinary judicial deference to Congress or the executive branch--the presumed nexus between immigration, on the one hand, and national security and foreign affairs, on the other--endures to this day. As the Court explained in 2003, “any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.” Critically, the Court invokes this national security/foreign affairs (NS/FA) rationale for judicial deference regardless of whether the specific regulation or enforcement action under review has any plausible bearing on those interests. In the case just quoted, Demore v. Kim, for example, the removable noncitizen was a thrice-convicted teenage petty criminal who, the government readily conceded, posed no threat to the public. Unsurprisingly, presidential administrations from both parties routinely invoke the litany of sovereignty, security, and foreign affairs--policy arenas in which the prerogative of the Executive traditionally is at its maximum--as a warrant for broad judicial deference in immigration matters.

This article is not the first to challenge the categorical presumption that immigration lawmaking and enforcement implicates national security or foreign affairs. Indeed, observers familiar with the American immigration system--from the issuance of visas to the review of asylum applications to the removal process--understand that most immigration cases do not touch on sensitive questions of national security or foreign policy. If the presumed [national security/foreign affairs] nexus is misplaced, scholars and advocates have asked, why should a judicial posture adapted to exceptional circumstances apply to the great majority of immigration cases involving decidedly unexceptional issues such as unlawful entry and visa overstays? Until now, however, the factual premise of that challenge has been largely conjectural, resting on a general impression, perhaps informed by experience as advocates, officials, or scholars, that most immigration cases do not implicate the kinds of governmental interests that warrant extraordinary judicial deference.

This article is the first to establish empirically that extraordinary judicial deference in immigration cases rests on a fiction. Using data available from the Executive Office of Immigration Review (EOIR), we analyzed the case files of 6.1 million removal cases adjudicated in immigration court between 1996 and 2021. Our analysis of the approximately 9.7 million charging codes entered in those cases indicates that the government identified a national security or foreign affairs issue as a basis for removal in just .013 percent of cases. That means that, by the government's own reckoning, only thirteen of every hundred thousand immigration cases, or one out of every 7,692, implicate national security or foreign affairs. In short, the basic warrant for extraordinary judicial deference in immigration cases, recited for generations with near-liturgical uniformity by Solicitors General and Supreme Court Justices, is demonstrably false.

These empirical findings have important implications for the future of judicial review in immigration cases. If the proportion of cases that even purportedly implicates national security or foreign affairs is, as our data indicates, vanishingly small, it makes little sense for this exceedingly rare class of cases to dictate the standard of judicial review for the 99.987 percent of immigration cases that do not involve those exceptional governmental interests. Instead, reviewing courts should approach immigration law for what it is: a miscellany of statutes, regulations, and enforcement actions concerning admissibility, civil violations of immigration law, the removal consequences of criminal convictions, labor, public health and welfare and-- very infrequently--foreign affairs or national security. Under such an approach, the vast majority of immigration-enforcement actions would be governed by the same substantive, judicially enforceable norms that apply when the government interferes with an individual's liberty outside of the immigration context--for example, by seeking to detain a criminal suspect or mentally ill person. The government would retain broad latitude in immigration cases involving bona fide national security and foreign affairs interests, but it would no longer enjoy the categorical judicial deference that it currently receives as a matter of course.

Part I of this article analyzes the [national security/foreign affairs] rationale for extraordinary judicial deference in immigration cases, including its origin in the anti-Chinese cases of the late-nineteenth century and the more sanitized form that it takes today. Part II presents empirical data demonstrating that over the past twenty-six years, the government has asserted a national security or foreign affairs interest in approximately .013 percent of immigration cases. Part III argues that, in light of our empirical findings, extraordinary judicial deference is unwarranted in the vast majority of immigration cases.

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This article supplies a critical empirical fact for future courts reviewing federal immigration laws and enforcement actions: Immigration law's presumed [national security/foreign affairs] nexus--the longstanding rationale for extraordinary judicial deference in immigration proceedings--is demonstrably false. The Supreme Court pronounced that nexus at the end of the nineteenth century, in a series of cases involving federal anti-Chinese legislation. If the nation was to “preserve its independence, and give security against foreign aggression and encroachment,” it reasoned, it was essential that federal lawmakers operate outside of judicially enforceable constitutional constraints. Accordingly, it untethered federal immigration regulation from its traditional anchor in the Commerce Clause, and instead endowed Congress and the President with a vast, unrestrained, and extraconstitutional authority to exclude or expel noncitizens. When the Court further entrenched the [national security/foreign affairs] rationale in the 1940s and 1950s, it omitted the rationale's racist origins and recast it in the Cold War rubric of securing the nation against international Communism. Even today, generations after visions of racially menacing Chinese “invaders” or Communist subversives have faded from the judicial imagination, the Court continues to affirm the [national security/foreign affairs] nexus to justify extraordinary judicial deference in immigration matters, without regard to whether the specific immigration issue at hand bears even a plausible connection to national security or foreign affairs.

The stakes of such categorical judicial deference are well illustrated in the Court's approach to noncitizens detained by the government pursuant to a removal proceeding. As section I.C explained, the INA is replete with provisions either mandating detention or granting DHS discretion to detain certain removable noncitizens. Such provisions either dispense with an individualized hearing (in the case of mandatory detention) or place the burden on noncitizens to prove that they are not dangerous or a flight risk (in the case of discretionary detention). They thereby abandon the presumption of liberty and authorize exactly the kind of judicially unchecked detention authority that the Court has disallowed for mental health, pretrial, and even terrorism-related detentions. And in defiance of all that the justices have written outside of the immigration context--of the “elemental” interest in freedom from physical restraint, the powerful presumption of liberty, and the importance of preserving “freedom's first principles” even in “extraordinary” times--the Court nevertheless has acquiesced, essentially affirming that the standards of due process that safeguard individual liberty in every other legal setting simply do not apply to the detention of noncitizens in ordinary removal proceedings. Because of immigration law's presumed [national security/foreign affairs] nexus, a noncitizen whose detention has no plausible bearing on national security or foreign affairs may nevertheless be denied the essential physical liberty to which she, as a constitutional person, is otherwise entitled.

Yet when we subjected the presumed [national security/foreign affairs] nexus to empirical scrutiny, it crumbled. Using data available from the EOIR, we analyzed the case files of 6.1 million asylum and removal cases adjudicated between 1996 and 2021. Our analysis of the approximately 9.7 million charging codes entered in those cases indicates that the government identified a national security or foreign affairs issue as a basis for removal in just .013 percent of the cases. In other words, by the government's own reckoning, foreign affairs or national security was meaningfully implicated in approximately thirteen of every one hundred thousand immigration cases. These empirical findings have important implications for judicial review in immigration cases. The .013 percent of such cases that may genuinely implicate foreign affairs or national security should not dictate the standard of judicial review for the 99.987 percent of cases that do not. If reviewing courts were to jettison the categorical presumption of an [national security/foreign affairs] nexus, the vast majority of immigration-enforcement actions would be governed by the same substantive, judicially enforceable constitutional norms that apply when the government interferes with an individual's liberty outside of the immigration context. The government would retain broad latitude in immigration cases that involve bona fide foreign affairs and national security interests, but it would no longer enjoy the categorical judicial deference that it currently receives as a matter of course.

In the context of detention, ushering immigration law into the constitutional mainstream would require that reviewing courts apply the same constitutional norms that the Court repeatedly has affirmed in nonimmigration legal settings, including pretrial detention, mental health detention, and even enemy combatant detention--specifically, that “liberty is the norm” and detention “the carefully limited exception.” In those settings, the government bears the burden of proving that the person it seeks to detain poses either a flight risk or a danger to the community. To extend the presumption of liberty to immigration law would mean that due process challenges to detention would place the burden on the government to justify the denial of physical liberty with reasons that are specific to the individual rights holder. As a result, INA provisions that either mandate detention for undifferentiated categories of noncitizens or afford DHS discretion to detain noncitizens without an individualized hearing would, as in the pretrial and mental health contexts, unconstitutionally deprive noncitizens of liberty without due process of law.

Finally, nothing in our proposal prevents courts from weighing an asserted foreign affairs or national security interest on its merits and, when a bona fide [national security/foreign affairs] interest in fact exists, deferring to Congress or the President. On the other hand, generic assertions of “foreign policy” or “national security” would, without more, be insufficient to trigger extraordinary judicial deference or diminished due process standards. Rather, the government's assertion of national security or foreign affairs would enter the analysis as a specific interest that the reviewing court would weigh in the balance, alongside the private interests of the detained individual and the burden to the government of additional procedural protections.

Data Scientist, Democracy Program, The Carter Center.

Associate Professor, University of Baltimore School of Law.

Visiting Professor of Practice and Senior Fellow, Center for the Study of Law and Religion, Emory University.