Deporting Families: Legal Matter or Political Question?

Last year 245,424 noncitizens were removed from the United States, and courts played virtually no role in ensuring that these decisions did not violate individual substantive rights like freedom of speech, substantive due process, or retroactivity. Had these individuals been deported from a European country, domestic and regional courts would have reviewed the decisions to ensure compatibility with these types of rights. Numerous international law scholars and immigration scholars seek to minimize the gap between the legal processes offered in the United States and Europe for noncitizens challenging deportation orders. Many of these scholars contend that greater recognition of international human rights in U.S. courts would bring U.S. deportation jurisprudence closer to its European counterpart. While appealing, these arguments fail to recognize that the availability of rights is not what distinguishes the European deportation jurisprudence from the American deportation jurisprudence. European courts play a more active role in reviewing deportation decisions than U.S. courts because of institutional cultural norms regarding the State interests at stake in regulating immigration. European adjudicators conceptualize immigration regulation as a legal matter rather than as a political matter as U.S. adjudicators do. This distinction between “immigration regulation is political” and “immigration regulation is legal” leads to different understandings of the judicial role and thus, to drastically different approaches to judicial review. Deportation jurisprudence provides a useful case for analyzing the relationship between legal rules and institutional culture in protecting individual rights. The literature addressing the domestic enforcement of human rights under-analyzes the role that institutional culture plays in human rights enforcement. This literature tends to focus on the importance of adopting specific laws, an independent judiciary, political will at the highest levels of government, and effective law enforcement personnel. While these are all important factors, institutional culture helps to explain compliance problems when States have the right laws, personnel, and political will. This Article addresses this gap in the literature by exploring the relationship between judicial norms regarding immigration and judicial review of deportation decisions