A Dangerous Combination: A Politicized Bench and Diluted Judicial Review

Over the summer, a number of sources reported on the Justice Department’s politicization of the immigration bench during the Bush administration. In July, the DOJ’s Inspector General and Office of Professional Responsibility released an investigative report concluding that Justice officials had illegally vetted immigration judges based on their political ties and ideological views. In August, the New York Times published an analysis of the records of the judges appointed under the illegally politicized system, which suggested that these judges disproportionately ruled against asylum-seekers in comparison to their peers appointed under the applicable civil service system.

However, these reports only skim the surface of the DOJ’s changes to the immigration system over the last seven years, and their lopsided effects. Shortly after September 11, 2001, the DOJ implemented expansive “streamlining” rules to the system of immigration adjudication at the agency which had significant consequences for asylum-seekers, agency decision making, and federal courts. (The DOJ oversees the nation’s immigration courts and system of administrative appeals).

Shruti Rana’s superb article, Streamlining the Rule of Law: How the Department of Justice is Undermining Judicial Review of Agency Action, coming out in the Illinois Law Review, analyzes how these streamlining rules, intended to speed up the deportation process and reduce the backlog of cases pending at the agency, instead stripped the immigration system of critical checks and balances and undermined judicial review. The article traces how the politically-vetted judges were installed just as the DOJ sought to grant these judges increasingly unfettered discretionary power. As the agency’s decisions grew increasingly arbitrary and inscrutable, immigration appeals flooded the federal courts, rising to nearly 20% of the federal docket (and now make up 90% of administrative appeals in the federal courts). The article explores the resulting clash between judicial review and agency discretion, and its implications for the vitality of judicial review.

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