INTRODUCTION II. THE "STATUS DEBATE" OVER CUSTOMARY INTERNATIONAL LAW A. The Modern Position B. The Revisionist Position III. ENFORCEABILITY OF CIL NORMS AGAINST THE EXECUTIVE BRANCH A. Scholarly Perspectives B. A Framework of Enforceability: Which Norms Apply and Against Whom 1. Which Norms 2. Against Whom IV. IMMIGRATION DETENTION: ALLOCATED RESPONSIBILITIES AND HARSH REALITIES A. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996. B. The Realities of Immigration Detention V. IMMIGRATION AGENTS AND THE EXERCISE OF PROSECUTORIAL DISCRETION A. Prolonged Arbitrary Detention Contrary to CIL B. Current Executive Policies C. Enforceability of CIL against ICE Attorneys, Officials, and Agents 1. Federal Courts Can Enforce CIL through Federal Common Lawmaking Authority 2. Enforceability in the Absence of "Controlling Executive or Legislative Act" a. No "Controlling Legislative Act" b. No "Controlling Executive Act" VI. CONCLUSION I. INTRODUCTION
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.... (1) The status and role of international law within the U.S. legal system has been an area of intense scholarly debate since the Founding era. (2) Among the many points of contention in this field is the unique tension between the Executive's foreign affairs powers (3) and the Executive's duty to ensure the faithful execution of the laws. (4) Conceptualizing Justice Gray's famous dictum from The Paquete Habana--international law as "part of our law" (5)--we are left to grapple with the precise contours and implications of this tension. (6) In an attempt to give some definition to these contours, this Note examines whether, and to what extent, the federal judiciary can and should enforce salient norms of customary international law (CIL) against the executive branch. Specifically, this Note articulates the constraints that CIL imposes on the exercise of prosecutorial discretion by executive officials in the practice of immigration detention.
The current detention regime, as established by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), (7) serves an "administrative purpose ... to hold, process, and prepare individuals for removal." (8) However, this civil system bears marked resemblance to criminal incarceration, without the attendant protections afforded to citizens within governmental custody. One such protection guaranteed to citizens but denied to non-citizens is the burden on the government, in a fair adversarial hearing, to make an individualized demonstration of necessity for detention (versus release on bail) prior to trial. (9) Judicial deference to the political branches in the immigration context (10) has often justified this disparate protection of non-citizens compared to their citizen brethren as a matter of constitutional principle; however, as a matter of international law, the obligations of the United States constrict its treatment of non-citizens. This Note argues, specifically, that CIL limits the discretionary authority of Immigration and Customs Enforcement (ICE) officials and related agents to detain without individualized review certain classes of immigrants during deportation proceedings.
To illustrate the application of The Paquete Habana dictum quoted above in the context of immigration detention, this Note proceeds as follows: Part II examines the "status debate" concerning CIL within the domestic constitutional system and concludes that CIL holds the status of federal common law; Part III discusses the Executive's "take care" duties in light of the federal enforceability of CIL norms; Part IV illustrates the current statutory framework governing immigration regulation and addresses the gross realities of modern immigration detention; and Part V advances the central argument that lower-level executive officials are bound, in the absence of definitive legislative enactment or qualified Executive directive, to norms of CIL prohibiting arbitrary and indeterminate detention.
THE "STATUS DEBATE" OVER CUSTOMARY INTERNATIONAL LAW
The "status debate," concerning the status of customary international law within a domestic legal system founded upon constitutional precepts and committed to federalism and separation of powers principles, is shaded with complexities. Accepting the call of The Paquete Habana ushers in a host of questions in search of resolution: if CIL is, like treaties and federal statutes, federal law, and is administered by federal courts by virtue of their common law authority, does it bind the states as supreme law? Does it constrain the executive? Does it overturn prior inconsistent legislation? Does it involve an activist federal judiciary making law where the democratic mechanisms and political branches have not themselves created or signaled a certain outcome? Courts and commentators alike have struggled with these questions, revealing a fundamental divide between proponents of the "revisionist position" and those of the "modern position." (11) Even within these two camps, the level of nuance required to answer these questions pushes the scholarly divide further and exposes differing views on the status of CIL within our jurisprudential hierarchy. (12)
The Modern Position
In general terms, the modern position views customary international law as domestic law, specifically, as federal common law. The import of The Paquete Habana enjoys roots in early Supreme Court jurisprudence, (13) recognition from members of the constitutional generation, (14) majority support among contemporary academics, (15) designation in the Restatement of the Foreign Relations Law in the United States (Restatement), (16) and ratification from modern courts. (17) Commentators continue to debate, however, the consequences of this approach to customary international law--that is, what it means in practice. One common thread that seems to tie adherents of the modern position together is the thought that CIL is supreme law for purposes of Article VI, (18) binding state actors and preempting inconsistent state law. (19) Another commonly held notion is the idea that the domestic legal status of CIL affords statutory federal question jurisdiction in federal courts. (20) However, adherents of the modern position do not generally endorse the view that all CIL is federal law for all purposes. For example, there is substantial variance on the issue of whether CIL supersedes federal statutes or treaties. The general consensus among courts and commentators is that Congress can violate and trump CIL, as federal common law, through affirmative legislation. (21) As with treaties, (22) the last-in-time rule prevails for CIL, and courts will enforce an act of Congress that is inconsistent with a prior norm of CIL. Although never specifically held by the Supreme Court, the "controlling executive or legislative act" dictum in The Paquete Habana (23) seems to support this construction. Lower courts have upheld this construction. (24) Notably, this dictum "has led to the recent assertion that not only Congress but also the President and lesser executive officials may disregard a treaty or a rule of international law." (25) In fact, the Eleventh Circuit utilized this dictum in Garcia-Mir v. Meese to hold that the decision of the Attorney General to detain undocumented aliens, though violative of international law, was binding on courts. (26) Garcia-Mirbrings into focus the subject of this Note: whether members of the executive branch, such as the Attorney General and his delegates, are subject to the constraints of customary international law. This subject will be explored in further detail in Parts III and V, infra.
The Revisionist Position
While it is clear that an "uncompromising conception of the modern position is a phantom," (27) revisionists nonetheless harbor a fundamental concern that customary international law--law made by a global community "in a process to which the United States contributes only in an uncertain way and to an indeterminate degree" (28)--has the force of federal law. In general terms, advocates of the revisionist position question the historical support for and substantive implications of an uncodified CIL as a source of federal law. (29) They challenge the legitimacy of such a conceptualization of CIL as running counter to "well-accepted notions of American representative democracy, federal common law, separation of powers, and federalism." (30) Moreover, they reason, arguments in favor of CIL as domestic law cannot survive post-Erie review, wherein a "federal court can no longer apply CIL in the absence of some domestic authorization to do so, as it could under the regime of general common law." (31) Authorization by federal political branches, such as incorporation through federal statutes, also has the virtues of making CIL norms "clearer, more concrete, and more democratic" (32) than they are under the framework of the modern position. The myriad arguments raised by revisionist scholarship are beyond the scope of this Note, but it suffices to keep their general precepts in mind. In adopting a limited conception of CIL as federal common law within the vein of the modern position, this Note will attempt to alleviate the attendant concerns of the revisionist camp arising in the context of executive discretion. (33)
ENFORCEABILITY OF CIL NORMS AGAINST THE EXECUTIVE BRANCH
Assuming that customary international law is federal law, it follows that such norms fall under the meaning of "Laws" for the purpose of Article II "take care" duties. (34) The duty to ensure the faithful...
International law, federal courts, and executive discretion: the interplay in immigration detention.
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