The Better Part of Valor: The REAL ID Act, Discretion, and the “Rule” of Immigration Law

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional claims or “questions of law” are reviewable while discretionary decisions are not. The question thus arises whether the venerable law/discretion dichotomy can withstand this much pressure. Can the law/discretion dichotomy legitimately function as a jurisdictional bar, as the line between the rule of law and unreviewable administrative practice? The article suggests not; for three reasons: 1. The law/discretion line—as a normative and a structural/procedural concept—is theoretically impossible to define with sufficient precision to base a jurisdictional preclusion upon it; 2. Historical legal practice in immigration law (and elsewhere) proves this point empirically; 3. Even if our legal system were able to surmount the first two points, the likely consequences of such a jurisdictional dichotomy would be exceedingly problematic for all concerned: noncitizens, their families, their communities, administrative actors, and federal judges. The necessary consequence of these three points, the article suggests, is that all attempts to create a bright line between law and discretion for jurisdictional purposes will fail, so long as tri-partite government survives. But in the meantime, the REAL ID Act, as it channels virtually all deportation appeals and many other immigration matters to the courts of appeals, will cause great mischief and will likely impede the sort of genuinely fertile judicial/legislative/executive conversation that could lead to a more workable immigration system. Important legal and factual issues will be buried beneath the jargon of discretionary preclusion, struggling to percolate to the courts of appeals. Therefore, the article concludes that either a more sophisticated jurisdictional statute or a more refined theory of discretion is needed