A Border Deferred: Structural Safeguards Against Judicial Deference in Immigration National Security Cases

by Ali Shan Ali Bhai

Click here for a PDF file of this article

Abstract

When confronted with cases lying at the intersection of immigration and national security, the judiciary has abided by a consistent principle: the president knows best. Since the late nineteenth century, rather than deciding these cases on the merits, courts have instead deferred to the executive branch. Courts’ reluctance to engage in judicial review of these policies is based on the traditions of special national security deference and the plenary power doctrine. Deference of this kind is not without its proponents, who cite the executive branch’s vast institutional advantages in the realms of immigration and national security. Detractors, on the other hand, contend that this deference renders the president beyond judicial review, creating a blank check for the executive branch to take questionable acts in immigration matters with little to no scrutiny by the legislative or judicial branches. After the Supreme Court granted certiorari to hear a challenge to President Trump’s controversial travel ban case in Trump v. Hawaii, both sides saw it as an opportunity to either preserve or jettison deference to the executive branch in this area.

But with a narrow 5–4 holding, neither side could claim victory. Instead, the future of plenary power remains an open question. To fill the gap, this Note proposes practical safeguards for the judiciary to act as a counterweight to unchecked executive authority in the realm of immigration law.

A Border Deferred: Structural Safeguards Against Judicial Deference in Immigration National Security Cases

by Ali Shan Ali Bhai

Click here for a PDF file of this article

Abstract

When confronted with cases lying at the intersection of immigration and national security, the judiciary has abided by a consistent principle: the president knows best. Since the late nineteenth century, rather than deciding these cases on the merits, courts have instead deferred to the executive branch. Courts’ reluctance to engage in judicial review of these policies is based on the traditions of special national security deference and the plenary power doctrine. Deference of this kind is not without its proponents, who cite the executive branch’s vast institutional advantages in the realms of immigration and national security. Detractors, on the other hand, contend that this deference renders the president beyond judicial review, creating a blank check for the executive branch to take questionable acts in immigration matters with little to no scrutiny by the legislative or judicial branches. After the Supreme Court granted certiorari to hear a challenge to President Trump’s controversial travel ban case in Trump v. Hawaii, both sides saw it as an opportunity to either preserve or jettison deference to the executive branch in this area.

But with a narrow 5–4 holding, neither side could claim victory. Instead, the future of plenary power remains an open question. To fill the gap, this Note proposes practical safeguards for the judiciary to act as a counterweight to unchecked executive authority in the realm of immigration law.