Article II judges: section 238's violation of separation of powers

• Author: Connor Bartlett Mcdermott
• Position: Managing Editor, Criminal Law Bulletin. J.D. cum laude 2021, Lewis & Clark Law School
• Pages: 29-55

ARTICLE II JUDGES: SECTION 238’S VIOLATION

OF SEPARATION OF POWERS

CONNOR BARTLETT MCDERMOTT*

ABSTRACT

Expedited removal proceedings are truncated immigration decisions pre-

sided over by executive agents who are also imbued with the power to decide

when such proceedings can be utilized. One of the statutes that permits this

adjudicative structure is INA § 238. This Article examines the history of

§ 238 expedited removals, tracing their origins back to the Anti-Terrorism

and Effective Death Penalty Act of 1996 and the reduction of protections

for migrants convicted of an aggravated felony codified in that law.

Subsequently, the step-by-step process of administrative removals is exam-

ined in detail in preparation for an analysis of why, on a structural level,

§ 238 violates Article III’s separation of powers guarantees. Due to their

adjudicative power, the executive officials entrusted with expedited removals

should be conceived of as an Article I-like Court. In which case, Congress

has impermissibly delegated Article III power to the executive branch. This

Article concludes that, as far as § 238 is concerned, Congress has over-

stepped its authority to delegate Article III power to the Executive, and it is

time for practitioners to consider a legislative courts challenge to adminis-

trative removals.

TABLE OF CONTENTS

I. INTRODUCTION ..................................... 30

II. THE STRUCTURE OF § 238 REMOVALS . . . . . . . . . . . . . . . . . . . . . 34

A. The Issuing Service Officer’s Initial Determination of

Aggravated Felon Status. . . . . . . . . . . . . . . . . . . . . . . . . 35

1. Redefining Conviction . . . . . . . . . . . . . . . . . . . . . . . 35

2. Aggravated Felonies Multiply in Response to Fear . . . 37

* Managing Editor, Criminal Law Bulletin. J.D. cum laude 2021, Lewis & Clark Law School. B.A.

2017, Bard College. My thanks to Professor Juliet Stumpf for her support, encouragement, and pathbreak-

ing commitment to bettering this world. © 2022, Connor Bartlett McDermott.

29

3. Presumption of Deportability. . . . . . . . . . . . . . . . . . 38

B. The Procedures Employed. . . . . . . . . . . . . . . . . . . . . . . 39

III. HISTORY OF LEGISLATIVE COURTS ........................ 42

IV. EVEN IF IMMIGRATION COURTS COULD MEET THE REQUIREMENTS OF

AN APPROPRIATE ARTICLE I COURT, AN AGENCY OFFICIAL DOES NOT 46

A. Section 238 Cannot Pass the Modern Wellness Test. . . . . 47

1. The Essential Attributes of Article III Courts are

Impermissibly Stripped by § 238 ................ 49

2. Executive Officials Usurp an Unconstitutional Amount

of Article III Power in the Context of § 238

Administrative Removals ..................... 50

3. The Origins and Importance of an Individual’s Right to

Due Process, Access to Counsel, and Freedom from

Unreasonable Seizure Cannot be Clearer .......... 51

4. Expediency does not Justify a Departure from

Article III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

B. Section 238’s Separation of Powers Violation Needs a

Lawsuit ..................................... 53

V. CONCLUSION ...................................... 55

I. INTRODUCTION

Just after nine in the morning on April 19, 1995, a truck bomb exploded at

the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma.

1

The

Oklahoma City Bombing remains the most deadly act of domestic terrorism

in United States history.

2

The four conspirators killed 168 people, including

19 children, and injured several hundred more when their bomb sent glass

and debris flying.

3

MADEIRA, supra note 1, at 21; Oklahoma City Bombing, FBI, https://perma.cc/9W89-NNND (last

visited Nov. 11, 2022).

Timothy McVeigh, a white supremacist enraged by

the federal government’s mishandling of the confrontations at Ruby

Ridge and Waco,

4

was quickly apprehended by the police along with his

1. JODY LYNEE

´ MADEIRA, KILLING MCVEIGH: THE DEATH PENALTY AND THE MYTH OF CLOSURE, at

xiv (2012).

2. CHAD F. NYE, JOURNALISM AND JUSTICE IN THE OKLAHOMA CITY BOMBING TRIALS 2 (Melvin I.

Urofsky ed., 2014).

3.

4. Both incidents involved Federal agents raiding entrenched compounds in Idaho and Texas respec-

tively. Both incidents ended with avoidable loss of life. The precise politics and logistics are beyond the

scope of this Article and are hotly contested. However, both raids almost immediately galvanized people

who, like McVeigh, were afraid of government overreach. See generally Betty A. Dobratz, Stephanie L.

Shanks-Meile & Danelle Hallenbeck, What Happened on Ruby Ridge: Terrorism or Tyranny?, 26

SYMBOLIC INTERACTION 315, 337–38 (2003).

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