Yearly Archives: 2018
Jul 20, 2018 Juliet StumpfImmigration
Public rhetoric about immigration paints the issues in stark terms. Immigrants are either criminals and terrorists or they are family members, workers, and survivors of persecution. Immigration is either our secret sauce, the key to our national prosperity, or it is the sleeper cell in our midst, the smooth-talking snake. It is about inclusion or exclusion, banishment or return, belonging or outcast. Immigrants are virtual citizens, or vicious vipers. They are law-abiding; they are lawless.
Amanda Frost’s Cooperative Enforcement in Immigration Law describes how this dichotomy in the discourse plays out in approaches to deportation policy. Deportation policy, she observes, is stuck in two parallel grooves. It demands either unfettered deportation of unlawfully present noncitizens, or the exercise of prosecutorial discretion to permit prescribed groups of noncitizens to remain in the United States without a recognized status.
Cooperative Enforcement carves a third path, one that emphasizes compliance with immigration policy. Frost suggests we retrofit immigration enforcement using a well-oiled administrative law concept: cooperative enforcement. This term sounds like it is ripped from the pages of the Secure Communities program. Secure Communities relied on a veneer of cooperation between nonfederal police and immigration authorities in apprehending fugitive or dangerous noncitizens. That narrative of cooperation evaporated when courts revealed that the immigration “detainers” that Secure Communities depended on were in fact invitations to police to make expensive unconstitutional arrests.
This sort of interaction bears no resemblance to Frost’s cooperative enforcement concept. Her proposal, instead, is a total re-envisioning of the role of DHS’s immigration enforcement agencies, from an enforcement model to a compliance model. Sound radical? This approach may feel new to immigration law, but it borrows from an administrative law approach that is as old as Saturday Night Fever.
Remain calm. Frost is not suggesting we retrofit the Border Patrol with big hair, velour uniforms, and wide lapels. The concept of cooperative enforcement has been de rigueur in other areas of administrative law, updating “the rigid, adversarial, command-and-control regime that dominated the regulatory environment in the 1970s and 1980s.” Over the past 20 years, the household names of administrative agencies—OSHA, the FDA, the EPA, and the SEC—have adopted a “collaborative approach to rulemaking and enforcement. They pioneered initiatives to use education, consultation, and flexible interpretations of legal standards to work together with regulated entities to come into legal compliance.”
Frost proposes that the immigration bureaucracy do the same. She envisions a new model under which government officials would proactively assist specific categories of unauthorized immigrants to come into compliance with the law. A sizable chunk of unauthorized immigrants qualify for at least one pathway to lawful status, but most are unaware of it or are stymied by the complexity of process. The immigration bureaucracy has an important role to play in navigating through the opportunities and complex procedural pathways “through education, assistance, adoption of streamlined, user-friendly procedures, and the liberal exercise of discretion, just as federal agencies such as OSHA, FDA, EPA, and SEC regularly assist the entities and individuals they regulate come into compliance with federal law.”
In the current moment, when command and control suffuses the immigration enforcement creed, a compliance-oriented approach seems like heresy. But Frost offers compelling reasons. “As in other regulatory contexts,” she points out, “the use of adversarial, command-and-control style enforcement of immigration law is both costly and inefficient.” Removing a single noncitizen costs an average of about $12,000, and “the immigration bureaucracy has the resources to remove only about 4% of the undocumented population each year.” “Deportation alone,” she concludes, “cannot solve the nation’s unauthorized immigration problems, just as enforcement actions alone cannot ensure compliance with environmental or workplace safety laws and regulations.” Working with eligible unauthorized immigrants to take advantage of existing pathways to legal status “reduces the unauthorized population without expending resources, harming the economy, or amending the immigration statute.”
“Cooperative enforcement is both more legally defensible and politically palatable than the extensive use of prosecutorial discretion,” Frost asserts. It can’t be more controversial than President Obama’s efforts to expand prosecutorial discretion to include unlawfully-present parents of citizens and lawful permanent residents, she says, pointing to the persistent criticism and prolonged litigation that DAPA attracted. Rather, a cooperative enforcement approach “seeks to use existing laws to assist unauthorized immigrants to regularize their status, and thus cannot be attacked as lawless or an abuse of executive power.”
Following in the footsteps of other agencies toward a flexible, cooperative approach to immigration enforcement isn’t just about legitimacy or efficiency. Complying with immigration law is as much about recognizing an individual’s right to remain as it is about requiring removal. Frost’s idea, at bottom, is about enforcing all of the laws, not just those that favor deportation.
Jul 6, 2018 Bethany BergerNative Peoples Law
The United States Constitution—that great experiment in creating a “more perfect union,” more democratic, egalitarian, and libertarian—was founded in sin. These sins include, among others, slavery and political exclusion of people of color and women of all races. They also include the erasure of sovereignty required to found a country on a continent occupied by existing indigenous sovereigns. Many before Seth Davis, including Milner Ball, Philip Frickey, Nell Newton, David Wilkins, and Robert Williams, have wrestled with this founding constitutional evil. Several things, however, distinguish Professor Davis’s American Colonialism and Constitutional Redemption. The result is an important addition to the canon of federal Indian law.
First, Professor Davis engages with theorists outside federal Indian law to an unusual degree. Professor Davis specifically takes on fiduciary theorists like Evan J. Criddle and Evan Fox-Decent, but also engages with other constitutional theorists like Sanford Levinson, Aziz Rana, and Jack Balkin; political theorists like Carole Pateman, Jennifer Nedelsky, and Robin West; race theorists like Dorothy Roberts and Miguel de la Torre; and even political figures like President Barack Obama and Reverend Adam Clayton Powell Sr. While other scholars of federal Indian law have written noteworthy works in other areas, few have so deftly connected their work to debates outside the field. The result is an article that helps to bring the law of Native people into mainstream debates, and out of the niche in which it is sometimes cabined.
Second, Professor Davis, more convincingly than most, rebuts the notion that either a federal trust responsibility or a treaty relationship can redeem the constitution of its colonial sins. Although (as highlighted in the work of Kevin Washburn recently praised in Jotwell) the federal-Indian trust relationship has been transformed from a paternalistic one to serve tribal self-determination, Professor Davis notes that the fundamentals of the trust make it ill-suited to this goal. Trusts, he writes, are paradigmatically written by settlors without the consent of their beneficiaries, and depend on the control of the trustee and inability of the trust beneficiary to manage its own affairs. As such, the trust is fundamentally at odds with the principles of tribal self-determination and agency. Further, after pointing out the limited efficacy of the trust concept in restraining or punishing the federal government, he argues that, quoting Rev. Powell, it is a kind of “cheap grace,” providing absolution without demanding anything meaningful from the colonizers.
Although other scholars have offered treaty relationships as a basis for a more positive relationship, Professor Davis points to their limitations as well. Treaties were drafted by U.S. negotiators, often agreed to from positions of little choice, and left out many tribes with whom matters could be settled outside of treaty relationships. Relying on written treaties is a futile effort to use the master’s tools to dismantle the master’s house.
Third, Professor Davis offers a new vision of the tribal-federal constitutional relationship, a model of “relational consent.” Drawing on relational contract theorists, he argues that the tribal-federal relationship should be understood not through formal treaties but through relationships based on mutual respect. This understanding finds support in history and indigenous law as well as theory. As Rob Williams and others have argued, for over a century relationships between tribal and Euro-American governments were forged through a cross-cultural diplomacy that incorporated indigenous concepts of political relationship through metaphoric kinship. It also is consistent with (some) existing constitutional precedent, which has combined historical practice and the spirit of Indian treaties to create a protected status for tribal sovereignty.
Professor Davis’s vision is obviously inconsistent with another long-established constitutional principle: that the federal government has plenary power to remove the sovereign and property rights tribes retain, so long as it does it clearly enough. Is there any chance of undermining this principle? The demise of constitutional precedents like Scott v. Sanford and Plessy v. Ferguson provide some hope of such a constitutional revolution. But those transformations took a Civil War on one side and the spectacle of massive resistance on the other to occur. Present politics, moreover, show how little redeemed we still are from the original sins of racial inequality. I confess I am skeptical that the plenary power doctrine will ever be overruled, no matter how many fine articles we write. But short of that constitutional revolution, Professor Professor Davis’s vision provides us with a new way to understand the sometimes paradoxical constitutional position of tribal nations. I believe this article will become a touchstone in federal Indian law and critical constitutional theory, and hope its constitutional vision will be incorporated by judges and politicians who make the law of indigenous peoples.
Jun 21, 2018 Jack PreisRemedies
Constitutional tort remedies, like their common law counterparts, are presumed to deter future violations. But the inference of deterrence depends, of course, on a number of sub-inferences that may not hold. For example, deterrence may not obtain if the officer is indemnified and therefore does not feel the personal sting of a money judgment. In a recent article, Professor Joanna Schwartz showed that officer indemnity is, in fact, nearly universal. But maybe deterrence might still obtain because the police department, which has to foot the bill of the indemnification agreement, will push its officers to obey the law. In another article, however, Professor Schwartz showed that this might not happen because most departments carry liability insurance and the cost of indemnification will often simply disappear into a budget line item for insurance. If officers are indemnified, and departments are insured against any loss, how will constitutional tort actions have any deterrent force? Schwartz suggested at the end of her article that one avenue for deterrence might be found within the operation of the insurance agreements themselves and that further study was needed.
Professor John Rappaport’s fantastic new article, How Private Insurers Regulate Public Police, fills that need, and does so splendidly. To study an issue like this, one must dive deep into the insurance industry itself, and that is exactly what Rappaport did. His article is based on “interviews with over thirty insurance industry representatives, civil rights litigators, municipal attorneys, police chiefs, consultants and more.” There is so much to the article that any summary will fail to do it justice, but briefly, Rappaport charts a chain of incentives that works as follows: police departments have an incentive to obtain liability insurance because it reduces risk. Insurance companies, in turn, have an incentive to reduce claims, thus increasing their profits. To reduce claims, insurance companies often encourage (or even require) education, training, accreditation, and other conditions that tend to improve officer compliance with the law, thus reducing claims. Departments have an incentive to follow insurance companies’ guidance on these matters not just because they need and want liability insurance, but also because doing so may reduce the cost of premiums and deductibles.
Rappaport is careful not to claim that insurance certainly reduces police misconduct, for that claim would require much more than the qualitative research he presents. Moreover, Charles Epp has collected data that casts some doubt on the role of insurance in pushing police reform (though, as Rappaport notes, Epp’s data is now nearly two decades old and did not focus on misconduct itself, but rather best practices). Nonetheless, Rappaport’s study leaves little doubt that insurance plays a significant role in how departments handle officer training and personnel decisions. The inference of deterrence—to one degree or another—is thus reasonable in most cases.
What is especially attractive about deterrence-via-insurance is that, according to Rappaport’s research, insurance companies may actually be better situated than police departments at avoiding future violations. This is because insurance companies are able to aggregate data from across jurisdictions and are able to better balance the cost of a specific violation against the cost of preventive measures. Insurance companies’ capacities in this regard start to make them look like a government agency, which naturally brings up the question of why an insurance company, rather than the government itself, is regulating the police.
Government has its own problems, however. Agencies, Rappaport notes, are often led by political appointees (or at least the politically minded) and thus must contend with complicated political concerns, such as the interests of police unions, periodic elections, and legislators who control the agency’s funding. This is not to say, of course, that private insurance is always superior. Insurers are necessarily driven by a profit motive and will be far less concerned with constitutional violations that do not lead to high-dollar judgments. Racial bias, for example, is an enormous problem in policing (much as in life generally) but rarely plays a role in high value cases.
In sum, Rappaport’s article brings the potential deterrent force of constitutional tort actions into clearer focus: The availability of a civil rights action gives rise to a demand for liability insurance. Firms in the resulting insurance market naturally seek ways to increase profits, one of which is to lower claims. And one way to lower claims is to demand better education, training, and other reforms by the insured. The article does not prove that the deterrent force always applies, and Rappaport does not claim otherwise. But for those who might contend that civil rights actions do not deter misconduct, the article offers an insightful and eminently reasonable account how they might (and in many instances, likely do) deter misconduct.
Jun 6, 2018 Angela BanksImmigration
Ming H. Chen,
Leveraging Social Science Expertise in Immigration Policymaking, 112
Northwestern L. Rev. Online (forthcoming 2018), available at
SSRN.
In President Donald J. Trump’s first State of the Union address he framed immigrants as dangerous criminals—gang members and murderers. To address this public safety threat President Trump proposed building a wall along the Southern border, ending the visa lottery, and eliminating the majority of family-based green cards. Yet social science research dating back to the early 1900s has found that immigrant criminal activity is significantly lower than United States citizen criminal activity. Despite these robust social science findings, immigration policy makers continue to promote and adopt policies based on the idea that immigrants present a significant public safety risk to the American public.
Ming H. Chen’s forthcoming essay, Leveraging Social Science Expertise in Immigration Policymaking, offers a critical intervention at this time in immigration policymaking. Chen’s essay presents concrete strategies that immigration policymakers can utilize to ground immigration policymaking in facts and social science insights. Chen’s recommendations focus on the process by which immigration decisions are made and seek to bring traditional administrative and constitutional principles into the process. First, bring presidential policymaking into the administrative state. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. Finally, strengthen judicial review of immigration policy.
These proposals are based on the traditional role that expertise has played in administrative decision-making. Experts and administrative procedure are two ways that administrative law has safeguarded against arbitrary decision-making. Administrative agencies traditionally embraced social science evidence to improve the quality of the agency decision-making. These agencies have relied on experts within the government and externally. Civil servants are the internal experts, and they offer learned expertise as a result of accumulating experience in the complex policy matters that they work on. External experts are used on advisory councils and confer with agency experts while maintaining their university or nonprofit positions. Advisory councils offer a forum in which social scientists are able to offer their professional norms regarding information-gathering and research methods. Incorporating external experts into the policymaking process provides a basis for decision-making based on professional norms rather than politics.
Administrative procedure is the other means by which agencies have limited arbitrary decision-making. Courts have increasingly required agencies to “identify their assumptions, methods, and evidence, as well as explain their reasoning.” (P. 4.) Today administrative decision-making is highly proceduralized, as evidenced by the Administrative Procedure Act (“APA”) and other trans-substantive legislation. Additionally, many organic statutes dictate what can and cannot be considered during decision-making.
Part II of Chen’s essay illustrates how immigration policymakers reject expertise. This section analyzes border control policies, federal responses to sanctuary cities, and the exclusion of refugees to demonstrate the institutional failures that allow immigration policymakers to ignore facts and social science insights. Chen contends that incorrect assumptions about the drivers of unauthorized migration by Republicans and Democrats has led to border control policies that are ineffective at best and at worst counterproductive. For example, sociological research regarding the factors driving migration suggests that a border wall is likely to exacerbate unauthorized migration rather than halt it. Sociologist Douglas Massey’s research indicates that heightened border control prevents circular migration such that individuals remain in the United States and establish roots rather than traveling to the United States for seasonal work opportunities and returning to their country of origin.
Federal responses to sanctuary cities are based on a “strong belief in immigrant criminality.” (P. 10.) This belief leads the federal government to adopt policies to punish sanctuary cities. Yet the idea that immigrants commit more crimes than citizens is false. Chen cites numerous reports and social science research findings showing that immigrants do not commit more crimes than citizens. Despite these facts the perception of immigrants is shaping immigration policy.
Finally, President Trump’s decision in January of 2017 to prohibit refugee admissions and his decision to reduce the refugee cap by more than half are based on the idea that refugees present a heightened terrorist threat. These presumptions ignore evidence regarding the rigorous vetting process that refugees undergo and “conflate terrorists and their victims.” (P. 14.)
Chen argues that importing traditional administrative and constitutional principles can bring more social science expertise into the immigration decision-making process. First, presidential policymaking should be brought into the administrative state by involving civil servants when undertaking executive action. Consulting with the affected agencies and encouraging those agencies to promulgate further regulations to carry out the executive orders would facilitate this goal. Second, use political mechanisms to improve the quality of evidence used in the immigration policymaking process. For example, amend the APA or the Immigration and Nationality Act to require that policies be based on a factual record that is subject to review and that information regarding methods and data sources for any studies relied upon be disclosed. Finally, strengthen judicial review of immigration policy. Chen suggests that normal standards of constitutional and statutory review should apply to immigration decisions. Such an approach “would require courts to take a ‘hard look’ at the rationality of agency decision-making, or at least be sure that the agency has taken a hard look and provide some kind of rational explanation for the policy changes.” (P. 19.)
Immigration policy is a key part of the President’s legislative agenda. As an increasing number of policy decisions are made in the area of immigration it is critically important that these decisions are based on accurate and reliable information. Chen’s essay makes two important contributions. First, it outlines the various ways in which current immigration policy is not based on accurate and reliable information, which causes the policies to be ineffective and at times counterproductive. Second, it provides an important roadmap for operationalizing administrative and constitutional principles to provide for more evidence-based immigration policy.
May 23, 2018 Caprice RobertsRemedies
Andrew F. Hessick,
Remedial Chevron, 96
N.C. L. Rev __ (forthcoming 2018), available at
SSRN.
What’s not to love about a remedies approach to solving an Administrative Law problem? Professor Andrew Hessick’s forthcoming article, Remedial Chevron, aims to do just that. Critics of Chevron deference assert its foundation is shaky. Still, Chevron deference underlies countless judicial decisions. Originalists and textualists challenge Chevron’s legality under the Constitution, the Administrative Procedures Act (APA), and nondelegation doctrine. Two sitting Supreme Court justices call for its demise. Professor Hessick views these threats as dangerous and seeks to save Chevron through reinterpretation. He pragmatically alters tack to overcome formalist objections by reformulating our existing conception of Chevron to a “Remedial Chevron”—a constraint on the court’s remedial authority. The article’s goal is to save Chevron from peril and retain useful purposes. Courts would not be bound to agency interpretation but instead conduct de novo review of the law. This de novo power would be limited to the authority to vacate an agency determination only if it were unreasonable.
The reason the challenges pose threats to the continued vitality of Chevron, according to Professor Hessick, is that the logical conclusion to the legal challenges is that Chevron cannot stand. Professor Hessick seeks to avoid this conclusion and proposes a reconceptualization in order to save Chevron. Underlying his argument is a commitment to retaining the functional advantages of Chevron within the administrative system and to maintaining certainty and stability of agency regulation and adjudications.
According to Professor Hessick, the three primary legal obstacles to Chevron’s legality are: (i) judicial power under Article III of the Constitution, (ii) delegation of interpretive authority, and (iii) scope of judicial review under the APA. Under the first category of attack, Justices Gorsuch and Thomas contend that Article III’s judicial power centers on the federal judiciary’s independent interpretation of law. Professor Hessick outlines Founders’ support for this view but notes a contrary line of court opinions providing for deference to agency decisions. He does not resolve this split, but offers that if Article III requires independent judicial interpretation, Chevron deference conflicts with the Constitution. Under the second line of attack, Congress’s passing of statutes for agency administration amounts to an implicit delegation of power to interpret laws to agencies. Professor Hessick explains two flaws with this critique: it rests on a fiction and violates Article I’s nondelegation doctrine. Chevron flounders under this attack. The last legal obstacle to Chevron is tension with the APA’s requirement that courts interpret statutes. As Professor Hessick explains, any attempt to surmount this hurdle with an implied theory conflicts with the APA’s requirement of express modifications. Accordingly, Chevron remains vulnerable to legal attack.
Remedial Chevron as the answer. Professor Hessick doesn’t respond to policy critiques of Chevron but offers a theory of Chevron as remedy to eliminate the legal barriers. And it does so without overturning mountains of precedent and agency regulations. Viewing Chevron as a remedial doctrine, the judiciary would not show deference to agency interpretations of the law. Courts could vacate agency interpretations on erroneous grounds only if the agency unreasonably interpreted the statute. It is unclear, however, whether Professor Hessick’s conception of Chevron as remedial doctrine is a prudential suggestion for courts to reinterpret Chevron precedent to a limited remedy and behave accordingly in the future or is it a statutory or constitutional mandate that Congress must implement. Given Professor Hessick’s endorsement of Congress’s power over statutory remedies, his proposal may require congressional action.
Professor Hessick proposes a modified interpretation of Chevron to a remedies doctrine as the solution but offers limits on its application. To support this theory, he provides a concise argument for the practice of placing limits on remedies. For example, he notes the legal requirements a movant must meet before securing an injunction. While I appreciate his effort to show limitations, the first category and perhaps the third simply remind readers that remedies law is bounded by laws, precedent, and doctrines. These bounds exist even if the remedy is equitable such as the injunction. It aids his argument that the Supreme Court, in eBay and Winter, strengthened the requirements for injunctive relief: imposing a more pronounced judicial obligation to analyze four factors before issuing (or denying) an injunction, even where historically a judge might have automatically granted the relief. Professor Hessick also emphasizes that similar limitations exist for damages. This assertion is true: scores of doctrines of limitation confine damage remedies. For example, the law of remedies includes a variety of limits including avoidability, certainty, and foreseeability. In certain vectors, the remedy simply will not lie. This result is true for purely economic losses even though caused by a defendant’s negligence. As the last example of limitations on remedies, Professor Hessick reminds us that violations of constitutional rights do not guarantee relief. Regarding this claim, Professor Hessick is correct, though it is sometimes regrettable that for every wrong, the law does not afford a remedy. Accordingly, a limited conception of Chevron would fit within the remedies canon.
Reconceiving of Chevron to a limited remedies frame addresses the legal objections stemming from the Constitution, the APA, and the nondelegation doctrine. No doubt it is within the judicial power of Article III for Congress to tailor the ways the federal judiciary lends relief. Further, Congress has broad Article III power to constrain federal judicial power to issue and shape remedies. Would adoption of Professor Hessick’s reframe result if we simply think about Chevron differently and convince courts to do the same or would it require congressional action? Congress has that power as long as it steers clear of constitutional boundaries such as Klein and Plaut. Professor Hessick’s solution involves a narrowing of when the court can grant relief to instances of agency unreasonableness; he does not suggest altering the rules of decision or the results in a particular case. Thus, Remedial Chevron appears within judicial power; it does not rely upon a delegation fiction, and it better comports with the APA.
Might it garner critique due to its own formalism? The reinterpretation requires courts to be in good faith about when an interpretation is unreasonable versus erroneous on other grounds. Professor Hessick addresses other likely concerns. He offers that the reinterpretation applies narrowly: “courts would consider the reasonableness of an agency interpretation only in adjudicating challenges to that agency’s action” but “would not be bound by agency interpretations in suits that do not challenge agency actions.” Professor Hessick replies with a helpful example about vehicle regulations. The reframe also would eliminate Chevron step zero, which delimits the agency interpretations subject to Chevron deference. Instead, Remedial Chevron would apply to agency interpretations of any law underlying its action—even laws the agency is not charged with administering. The APA limits a reviewing court’s power to vacate an agency’s action as contrary to law. Professor Hessick maintains that Remedial Chevron does not rely on the theory of congressional delegation of interpretative authority to agencies. Accordingly, courts need not resolve whether the agency possessed authority to issue binding interpretations of the statute. Last, Professor Hessick acknowledges that his approach constitutes a sizeable departure from existing law in that an agency would not be permitted to adopt a contrary interpretation of an ambiguous statute already interpreted by a court. The court’s interpretation is the law as “Remedial Chevron does not depend on the theory that agencies have primary interpretive authority.”
Should we reconceive Chevron to embody a remedies doctrine? If you wish to retain administrative stability and diminish formalist objections to Chevron deference, Professor’s Hessick’s proposal warrants your serious consideration.
Cite as: Caprice Roberts,
Chevron as Remedy, JOTWELL
(May 23, 2018) (reviewing Andrew F. Hessick,
Remedial Chevron, 96
N.C. L. Rev __ (forthcoming 2018), available at SSRN),
https://lex.jotwell.com/chevron-as-remedy/.
