Executive Defiance and the Deportation State.

• Author: Koh, Jennifer Lee

INTRODUCTION

A prevailing assumption in our legal system is that once a federal court issues an order, the government will obey.' That assumption has been tested in recent years, especially but not exclusively in immigration law. The Supreme Court's much-anticipated decision in Department of Homeland Security v. Regents of the University of California, issued on June 18, 2020, held that the Trump Administration's attempt to rescind the Obama-era Deferred Action for Childhood Arrivals (DACA) policy for certain immigrants who came to the United States as children was arbitrary and capricious and, therefore, invalid. (2) Many observers expected that the Court's ruling had restored the prerescission DACA policy, thereby obligating the government to process first-time applicants for DACA in the absence of a new, post-Regents DACA policy. (3) But United States Citizenship and Immigration Services (USCIS)--which adjudicates DACA applications -immediately denounced the Court's ruling as having "no basis in law" (4) and refused to process new DACA applications. (5) The case has given rise to allegations, both in and out of court, of defiance. (6) But the DACA case is only one of a series of high-profile cases involving executive defiance of the judiciary. Other recent examples include court sanctions imposed on the Education Department for violating a preliminary injunction (potentially the largest ever against a federal agency, in the amount of $100,000), (7) and against the Census Bureau for discovery lapses both prior to and after the Supreme Court's decision in the prominent citizenship-question litigation. (8)

One explanation for the surge of high-profile episodes of executive defiance across agencies may be the governance style of President Trump, who during his tenure openly denigrated the judiciary (9) and aggressively deployed executive power to advance his Administration's controversial policy goals. (10) DACA, for instance, is a program involving presidential discretion over immigration priorities. (11) A President that directly defies an order of the Supreme Court reflects a conflict of governmental power at the highest levels. (12) When it comes to agency disobedience of judicial authority, presidential administration matters. (13)

But presidential administration is not the only thing that matters. Rather, the structural dynamics at play in immigration law--a field in which the "normal rules of constitutional law" do not consistently apply (14)--exert considerable influence on the executive branch's relationship with the courts. With immigration law, overwhelming executive power and limited judicial review have become defining features of the deportation state. These features provide critical background for understanding executive defiance and are not positioned to change dramatically after President Biden takes office. In certain respects, the immigration field enhances the power of the President. But the broader deportation bureaucracy, which has seen its power increase over time and become concentrated in its lower rungs, is also a critical player in determining how, and whether, the Executive complies with judicial authority.

This Feature explores executive defiance taking place at varying levels of the deportation state. It focuses on defiance that occurs when immigration agencies fail to adhere to binding federal-court orders and identifies factors driving executive defiance, (15) such as the refusal by the Board of Immigration Appeals (BIA) to follow federal-court orders, as well as deportations that violate federal-court orders. But understanding executive defiance also involves considering the actors impacted by and participating in the defiance. Given that the federal judiciary relies primarily on lawyers to represent the actions and interests of the Executive during judicial proceedings, and that the judiciary issues its own binding set of expectations on the conduct of those lawyers, this Feature includes the government lawyers who fail to adhere to well-settled professional norms and therefore defy the integrity of the judicial process in its definition of executive defiance.

Like the proverbial canary in the coal mine, executive disobedience signals deeper pathologies in the immigration system. Tolerating the Executive's refusal to comply with the judiciary risks tipping the balance of power against an already diminished judiciary with respect to immigration. The high human stakes involved in the deportation context arguably set this area of law apart from others and call out for attention. This Feature suggests that longstanding features of the deportation state--in combination with the Trumpian immigration agenda--have invited noncompliance at multiple points throughout the immigration executive.

The implications of executive defiance discussed here are not limited to the immigration arena alone, though. After all, permitting the Executive to defy the judiciary in one area of administrative law risks emboldening the Executive to transgress compliance norms across the administrative state. Perhaps because governmental disobedience to the judiciary, particularly court orders, is perceived as a deviation from settled legal norms, (16) its existence remains largely underexplored in the scholarly literature. (17) The Feature seeks to expand the scholarship on executive defiance and, through its examination of the deportation state, provides a context-specific point of comparison to other areas of administrative law in which executive defiance has emerged. The Feature's emphasis on immigration law also aims to illuminate the nature of executive and judicial power, both in the immigration field and more broadly. Managing the boundaries of executive and judicial power has given rise to spirited debates involving, for instance, the propriety of nationwide injunctions (18) and the continued vitality of deference doctrines. (I9) Immigration is heavily implicated by--and serves as the recurring context for--these conversations, (20) and thus provides nuance to parallel debates involving the two branches and the separation of powers.

Part I provides necessary context by discussing the consolidation of executive power in immigration law generally, and of deportation power specifically, in the hands of the President and the lower realms of the immigration bureaucracy. It also explores how the interplay of judicial and executive power is evolving in immigration law today. Part II analyzes recent examples of immigration-agency conduct that reflect varying degrees of defiance, proceeding from an instance of open defiance to progressively less definitive conduct that still falls within the boundaries of problematic disobedience: (1) the BIA's refusal to implement an order from the Seventh Circuit, which implicates the competence of the most robust adjudicatory process in the deportation system; (2) deportations that violate federal-court orders, which highlight the power of frontline deportation agents; and (3) the question of agency litigation conduct that violates professional norms, such as misrepresentations to courts or failure to comply with deadlines. Part III discusses ways in which courts, the Executive, and Congress can respond, while recognizing the limitations of each branch. Ultimately, responding to noncompliance may require rethinking the scale and operation of the deportation powers of the Executive.

1. EXECUTIVE DOMINANCE AND THE PLACE OF THE JUDICIARY IN IMMIGRATION LAW

   This Part sets the stage for analyzing executive defiance by exploring the nature of executive and judicial power in the immigration system. It highlights how executive power has emerged in the deportation state and how judicial power, while attenuated, exerts meaningful influence over the implementation of executive policy.

   1. Doctrinal and Statutory Considerations

      The plenary power doctrine is a foundational starting point for nearly any immigration-related systemic inquiry. In its strongest form, the centuries-old doctrine suggests that Congress possesses the unfettered discretion to set forth immigration rules absent direct constitutional restraints. (21) A corollary to the judiciary's super deference to the legislature is that the implementation of immigration statutes by executive-branch officials also warrants deference. In Nishimura Ekiu v. United States, the Supreme Court in 1892 asserted that "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law." (22) Two Cold War cases involving the prolonged detention of noncitizens at Ellis Island, United States ex rel. Knauff v. Shaughnessy (23) and Shaughnessy v. United States ex rel. Mezei, (24) reflect the plenary power doctrine at its height. In Knauff, for instance, the Court declared that "[t]he action of the executive officer" acting under authority delegated by the President and Congress "is final and conclusive." (25) Mezei similarly stated that "courts cannot retry the determination of the Attorney General," at least with respect to noncitizens "on the threshold of initial entry." (26) The courts have reinforced the judiciary's deferential posture to the Executive, especially when they treat noncitizens as situated outside U.S. territory. (27)

      Although scholars have questioned the continued vitality of the plenary power doctrine, particularly the suggestion that immigration statutes are impervious to judicial scrutiny, (28) the legacy of Nishimura Ekiu, Mezei, and Knauff recently received a significant boost from the Supreme Court. On June 25, 2020, the Court in Department of Homeland Security v. Thuraissigiam validated Congress's decision to insulate the vast executive infrastructure of expedited removal from habeas review. (29) Expedited removal, which permits frontline deportation officers to summarily deport certain recent arrivals to the United States, has been heavily...