Judicial Review of Disproportionate (or Retaliatory) Deportation

This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even as they uphold government enforcement decisions. They help motivate advocates, promote inter-branch dialogue, and provide progress toward judicial innovation. This Article focuses particular attention on this steps-on-the-way function, suggesting how the concerns these courts have expressed may one day soon produce a greater measure of judicial scrutiny of removal decisions on proportionality grounds