Against Attorney General Self-Referral in Immigration Law

By STELLA BURCH ELIAS and PAUL GOWDER. Full Text.

This 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.