Cornell Law Review Volume 91 Issue 2

Deportation and the War on Independence

Debates over judicial independence have been with us for centuries and are not likely to go away soon.  A vast literature on the subject has accumulated, largely in discrete clumps segregated by type of judgeship.  In the United States, for example, separate bodies of writing examine the independence of federal Article III judges, the judges of Article I courts, federal administrative law judges (ALJs), and state court judges.  Writings have also proliferated on the degrees of independence possessed by judges of foreign domestic courts and judges of international courts and tribunals.

In immigration law in particular, judicial review has long been a sensitive subject; in the past few years, however, a series of events has pushed the broader issue of adjudicative independence front and center.  While most of the recent developments have individually caught the attention of both the academy and the general public, this Article suggests that the whole has been worse than the sum of its parts.  As hyperbolic as the title of this Article might sound, I submit it is accurate to depict the sum of these various measures as an all-out war on the very notion of decisional independence in the adjudication of immigration cases.


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