The Certification Power Is Simply an Exercise of the AG's Duty to Faithfully Execute the Law

By Dan Cadman on November 6, 2019

My colleague Art Arthur has posted several articles (among them, here, here, here, and here) in which he addresses the immigration courts, generally, and specifically the attorney general's certification power, wherein he can take cases under review and issue pronouncements that are precedential and binding on the Executive Office for Immigration Review, which consists of the immigration courts and their appellate tribunal, the Board of Immigration Appeals.

In my own prior postings (e.g. here), I too have discussed the AG's power over these tribunals which are outgrowths of the powers once vested in immigration "special inquiry officers", both then and now members of the executive branch serving at the pleasure of the AG.

In these postings, Arthur and I have attempted to dispel the argument put forward by immigration advocacy groups, and immigration lawyers who defend aliens for a living, that there is something unseemly about this certification process. Arthur makes a very strong case for the rationale behind certification in his most recent posting, "AG Certification Explained".

We have been obliged to issue these postings with some frequency not only because of the rumblings of alien advocates but because their arguments have found a certain amount of traction with many media outlets. This is not a surprise given the liberal bent of many journalists, but it does reveal a certain logical dissonance in not understanding — or perhaps choosing not to understand — the attorney general's plenary powers and obligations under the federal laws.

By way of comparison, consider this: Another arm of the AG's Justice Department also issues opinions that bind the entire executive branch — not just the immigration courts, but everyone. That arm is the Office of Legal Counsel (OLC). To the extent that the OLC's role in overseeing, on behalf of the AG, the whole of the executive branch is discussed, ironically it is often in a salutary manner, because advocates and journalists understand that it can act as a powerful curb on extra-statutory activities by the many departments, divisions, boards, and bureaus that make up the sprawling behemoth that composes the executive branch in modern America. In this role, the OLC is seen often as a guardian of the people, particularly against overzealous investigative agencies and federal prosecutors.

But at its core, the authorities exercised by the OLC are authorities delegated by the AG himself and, in that sense, are fundamentally no different than when the AG certifies to himself review of a case in the immigration context. He is in each case complying with his constitutional duty to be sure that the laws of the United States are well and faithfully executed: nothing more and nothing less.