8145 research outputs found
Sort by
Against Attorney General Self-Referral in Immigration Law
Full text linkThis Article advances a rule-of-law-based critique of the Attorney General’s immigration self-referral power. We argue that the Attorney General’s self-referral and review power over pending immigration proceedings allows an appointed Executive Branch official to engage in unchecked and unilateral lawmaking and, therefore, should be abolished. Scholars have typically understood legal stability, prospectivity, and the separation of policymaking from adjudication as requirements of the Anglo-American rule of law regime which protect individual freedom and equality. It is traditionally believed that by limiting policy-driven legislation to prospective, general laws which are enacted through an explicitly legislative process, individuals may be secure against the sudden disappearance of their vested legal interests and disruption of their plans of life. And while it is true that the common law permits judicial rulemaking to change laws with retroactive effect, the norms and ethics of the judicial process at least represent an effort to keep such changes rooted in preexisting law rather than reasons of state by requiring judges to be separate from the policymaking enterprise. The Attorney General’s immigration rulemaking by adjudication features none of these protections. In contrast, the Attorney General’s self-referral power over immigration cases, by which a political officer can directly take control of a pending adjudication and use it to make precedential rulings motivated solely by policy considerations and with retroactive effect, constitutes an invisible, unpredictable, and insurmountable barrier for immigrant respondents. The referral power subjects the legal interests of immigrants—and of those U.S. citizens who share interests with immigrants as family members, employers, and otherwise—to instability and uncertainty, and uses individual immigrant respondents merely as means for the implementation of broader political goals. As our research illustrates, from 2017 to 2021 the Trump administration used the self-referral power in seventeen different significant cases, to make major changes to the definition of asylum, the docket management strategies of immigration judges, and the extent of immigration consequences for immigrants with criminal convictions. It even used the Attorney General referral and review power to expand the authority of the Attorney General to make binding law, by broadening the existing scope of the Attorney General referral and review power! In this, and myriad other ways, the referral power is incommensurate with the structures, practices, and norms of our contemporary judicial system, and the animating precepts of the constitutional framework that underpins that modern system. Accordingly, the referral and review power stands as a key case study of the importance of separation of powers and judicial independence for the rule of law
“What Has Always Been True”: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing
Full text link
The Battle for the Soul of the GDPR: Clashing Decisions of Supervisory Authorities Highlight Potential Limits of Procedural Data Protection
Full text linkThe Bogeyman of Environmental Regulation: Federalism, Agency Preemption, and the Roberts Court
No full textIn a trio of environmental cases—West Virginia v. EPA, Sackett v. EPA, and Loper Bright v. Raimondo—the Roberts Court curtailed the federal regulatory power and produced corresponding deregulatory outcomes under seemingly neutral legal principles. This Article interrogates the doctrinal coherency of the Roberts Court’s jurisprudence by applying the rationales of these cases to climate change litigation. Climate change policies advanced by state and local governmental plaintiffs represent the inverse of what the Court has previously rejected. The regulatory burdens arise under state, not federal, law. In this analysis, the Article advances a previously undertheorized aspect of the trio’s combined effect: These cases diminish the federal preemption power. A diminished federal preemption power, in turn, creates space for environmental regulatory action at the state and local levels to flourish. Federal preemption challenges to climate suits thereby juxtapose the deregulatory outcomes of West Virginia, Sackett, and Loper Bright with the separation of powers and federalism principles ostensibly advanced by the Roberts Court in those cases
The Impact of Loper Bright v. Raimondo: An Empirical Review of the First Six Months
No full textOne of the most impactful decisions of the U.S. Supreme Court’s 2023–2024 term was Loper Bright Enterprises v. Raimondo, which overruled the forty-year-old administrative law doctrine of Chevron deference. This doctrine allowed federal agencies to interpret ambiguities in the statutes that they administer. Courts cited Chevron over 18,000 times in its forty-year existence, or roughly 450 times a year—more than once a day, on average. Small wonder, then, that in the first six months after the Supreme Court decided Loper Bright, courts cited it more than 400 times. This article provides an empirical review of what courts are doing with Loper Bright in the initial aftermath of the Supreme Court’s decision. It offers three main observations. First, state courts react differently to Loper Bright depending on their own state administrative review standards and on whether the case before them involves federal law, with the most negative reaction coming from the Hawai’i Supreme Court and the most accepting reactions coming from states that never had or that have already eliminated the state equivalent of Chevron deference. Second, in the absence of additional guidance from the Supreme Court, lower federal courts are already diverging regarding what Loper Bright means for federal administrative law decisions, particularly with respect to other forms of administrative law deference, such as Skidmore and Auer deference. Finally, a decided difference has emerged between how the lower federal courts are treating new administrative rules, invalidating them almost 84 percent of the time, and how they treat all other federal activities, especially federal agency orders. While many of these rules would have been vulnerable regardless of Loper Bright, it remains worth watching how federal court review of new agency rules continues to unfold
Major-Questions Lenity
No full textBoth the historic rule of lenity and the new major questions doctrine rest on a fundamental commitment to the separation of powers for important policy questions. In light of that shared justification, the logic of the major questions doctrine in the administrative-law context has much to offer lenity in the criminal law context. In fact, the major-questions framework is strikingly similar to a rationale that has recently emerged in some of the Supreme Court\u27s decisions narrowly construing federal penal statutes. That emerging rationale can be understood as a modest form of major-questions lenity that may lead to a more robust version of the doctrine, one that would work to restore historic lenity\u27s insistence on legislative clarity in crime definition, substantially limit the practice of implicit delegation of crime definition, and help to curb lower-court adoption of overly broad and literalistic constructions of penal statutes
