Those Favoring Judicial Activism on Immigration Will Likely Be Disappointed With a Justice Barrett

And that is how it should be

By Andrew R. Arthur on October 5, 2020


On September 25, I wrote a post captioned "Judge Amy Coney Barrett's Immigration Jurisprudence", analyzing a decision applying the doctrine of consular reviewability. Long story short: Consular visa decisions are subject to deferential and limited review, which she applied in ruling in favor of the government. That post has prompted numerous inquiries from reporters on how a Justice Barrett would rule in immigration cases — an impossible task because I am not a seer. But the one point I have made is that those who favor restrictionist immigration policies will likely be disappointed if they expect a Justice Barrett to engage in judicial activism on the issue — which is how it should be.

Barrett has issued three opinions and one dissent in cases that addressed immigration issues while a judge on the Seventh Circuit:

  • Yafai v. Pompeo, the subject of the September 25 post. Judge Barrett authored that opinion, which included a dissent.
  • Morales v. Barr, which effectively overruled Attorney General (AG) Sessions' decision in Matter of Castro-Tum in the Seventh Circuit. The AG's decision had limited the authority of immigration judges (IJs) to administratively close cases while immigration applications are pending with other agencies. Finding that a specific regulation granting IJs authority to "take any action ... appropriate and necessary for the disposition of ... cases" was broad enough to include administrative closure, she concluded that it was not appropriate to defer to the AG's findings to the contrary. Judge Barrett also authored that opinion (for a unanimous panel), holding that DOJ could limit administrative closure through regulation, but not through adjudication.
  • Alvarenga-Flores v. Sessions, which denied a petition for review filed by a Salvadoran national whose applications for asylum, statutory withholding, and protection under the Convention Against Torture (CAT) had been denied by an IJ. Specifically, the IJ concluded (and the Board of Immigration Appeals (BIA) agreed) that the alien lacked credibility, and that his asylum application was time-barred. Applying a deferential standard of review to the credibility determination (as required under Seventh Circuit precedent), she found that substantial evidence supported the IJ's and BIA's decisions. Judge Barrett authored that opinion, which included a partial concurrence and dissent.
  • Cook County v. Wolf, affirming a preliminary injunction issued by a district court judge of the "public charge rule". Judge Barrett wrote a 41-page dissent from that 41-page decision, finding that DHS had statutory authority to amend prior "field guidance" applying the public charge ground of inadmissibility set forth in section 212(a)(4) of the Immigration and Nationality Act (INA), and concluding that the district court's analysis of "public charge" (the basis for its injunction) was "flawed". That dissent includes an in-depth analysis of the history of the statutory provision (which dates to 1882), as well as of the most recent statutory revisions (in 1996), in reaching its conclusion. The Supreme Court stayed that preliminary injunction on February 21, pending Seventh Circuit review of the underlying case, and judgment from the Supreme Court of that opinion if certiorari is sought and granted.

Broadly, it could be asserted that these three opinions and one dissent represent three victories for the government's immigration policies, and one defeat. That assertion would be in error, however.

A review of these four cases reveal that Judge Barrett hews closely to precedent and to statutory and regulatory language in drafting her decisions. I disagree with her conclusion in Morales, as I believe that Matter of Castro-Tum was correctly decided by the AG, and well within his statutory authority under section 103(a)(1) of the INA, as I have explained previously. That said, however, my disagreement has more to do with my interpretation of the operative regulation (under which I worked, and which I applied, for years), rather than on the underlying policy (which did not factor into her decision).

Rather, Judge Barrett leaves policy questions where they belong: with the political branches, that is, Congress and the executive. For that reason, if conservatives, or those who favor a more restrictive immigration regime, believe that she would use her position as a Supreme Court justice to advance specific immigration policies, they will likely be disappointed — unless those policies are grounded in statute and precedent (and regulation, to the degree that it is consistent with and authorized by statute).

But that is how it should be. The logical and analytical prowess demonstrated by Judge Barrett in these decisions (written in plain language that is easily comprehensible to the man in the street, to boot) are exactly the qualities that any American (liberal, conservative, undecided, or indifferent) — and in particular any immigration advocate (for expansion, restriction, or the status quo) — should be looking for in any generic nominee to the bench.

For too many years, activist courts have let Congress in particular off the hook when it comes to drafting a comprehensible immigration policy that (first) advances the interests of the American people, while ensuring that we remain "a nation of immigrants". The various judicial opinions on DACA (up to and including the Supreme Court's decision in DHS v. Regents), are a prime example of this, but not the only ones.

There is no real disagreement that something should be done to provide some legal status to DACA recipients, but that will require trade-offs to ameliorate the deleterious effects of such an amnesty. That means that members of Congress from both parties will need to compromise, but they have shown a marked inability to do that when it comes to immigration for the last 14 years. They will only act when they have to act, and so long as the courts interpose themselves in the process (on some questionable legal theories — again in my opinion), they won't. It's that simple.

Where the Supreme Court otherwise botched it in immigration cases in the last term (in particular in Guerrero-Lasprilla v. Barr — as I explained in a March 25 post — and Nasrallah v. Barr, the subject of a June 3 post), it did so in terms of statutory interpretation, a field where Judge Barrett has shown a particular acuity. Respectfully, the Court could have benefited from her skills in this area in those cases.

If she is confirmed, don't expect Justice Amy Coney Barrett to break new ground on immigration. Expect her, however, to apply the law as written, and under prevailing standards of review. That would be her job, and she appears particularly positioned to do it well.