Deportation and the War on Independence

Judicial independence, despite its long history and cherished place in American jurisprudence, has periodically been attacked by those who disagree with particular outcomes. In recent years, Congress and the executive branch have mounted a sustained assault on decisional independence in the adjudication of deportation (now called “removal”) cases. Various actions taken by Attorney General Ashcroft in 2002 and 2003 and still in place today have left both immigration judges and the members of the Board of Immigration Appeals without any meaningful decisional independence. Meanwhile, in 1996 and again in 2005, Congress imposed severe limitations on judicial review of administrative orders of removal. Each of these developments has been the subject of a separate scholarly literature. This article argues that the whole is even worse than the sum of its parts. The combination means that, for the affected categories of cases, there is no point anywhere in the process at which a deportation decision will be either made or reviewed by a body that enjoys decisional independence. That conclusion generates a more fundamental question: What is so great about decisional independence? To answer that question, this article examines the history and theories of judicial independence in England and early America. Here too, a vast literature has accumulated largely in segregated clumps; in the United States there are separate bodies of writing on the independence of United States federal article III judges, the judges of article I courts, federal administrative law judges (ALJ’s), and state court judges. Writings have also proliferated on the degrees of independence possessed by judges of foreign domestic courts and the judges of international courts and tribunals. Surprisingly, there has been almost no scholarly examination of how these strands of judicial independence theory interrelate. This article propounds ten theories that either have been or could be asserted on behalf of decisional independence generally. It suggests that, ultimately, the most convincing theories are united by the principle of the rule of law. The article also argues that, at a minimum, the law should require decisional independence at some stage of every adjudication process unless a particular case presents a compelling need for political accountability or the individual interests are trivial. The article concludes by sketching the possible forms that solutions might take in the particular arena of deportation. It recommends that the resulting structure embody meaningful decisional independence in the administrative phase of the deportation process, followed by the reinstatement of the right of judicial review in all deportation cases. That discussion also identifies the relevant sub-variables and considers the general pros and cons of different adjudication models