Deeper Histories of Immigration - #4 US Immigration Courts

In May 1940 President Roosevelt abruptly decided to transfer immigration services from the Department of Labor to the Department of Justice (DOJ), a law enforcement agency.

🛑 Wait! Said Attorney General Robert Jackson. He told Roosevelt that the move follows a tendency to “make goats of all aliens” like Germany makes goats of all Jews.

Nah uh, FDR said. FDR countered: only the DOJ could weed out German spies 🕵‍♂️, rumored to be everywhere, through registration, fingerprinting, investigation, and enforcement.

❗ The move had a far-reaching consequence: it made the Attorney General, with no expertise on immigration matters, into the ultimate adjudicator in immigration cases with immigration judges (called “special inquiry officers” until 1973) as his underlings, whose decisions he can override at any time and for any reason.

Messed up, right?

In 2002, prompted by 9/11, all immigration services were transferred to the Department of Homeland Security...

... all except for immigration courts, which handle deportation and deportation-related proceedings.

Why were immigration courts placed in DOJ and why do they remain there?

As one scholar, Allison Peck, writes, they were placed there because of “xenophobia in times of war”.

Why have they stayed there? My answer:

1️⃣ Xenophobia in times of peace (and war).

2️⃣ The underlying extra-constitutional power behind immigration law and policy: the plenary power doctrine.

The doctrine was expressed in a 1889 Supreme Court decision: “The right to exclude or to expel all aliens or any class of aliens, absolutely or upon certain conditions, in war or in peace, [is] ... an inherent and inalienable right of every sovereign and independent nation…”

Because of this doctrine, constitutional rights and protections afforded to citizens (independent of political considerations) can often be thrown out the window when it comes to non-citizens (and sometimes even citizens) in cases involving broadly defined “foreign relations” and “national self-preservation”.

A lot of immigrant and social justice advocates today want the government to make immigration court into an Article I court, the only reform many believe would make immigration court truly independent.

❗ But if the making of such a court acquiesces to plenary power (Article I courts still fall under the political branches, which obviously limits their independence), I fear the more things change the more they’ll remain the same.