Alison Peck is the James M. Steptoe and Robert D. Steptoe Professor of Property Law and codirector of the Immigration Law Clinic at West Virginia University. She regularly represents clients before the U.S. immigration courts.
After years of teaching courses about immigration and administrative law and thinking out loud with my students about the structure of the executive branch, I could not explain why the immigration courts would be located in DOJ, a law enforcement agency. During the Trump administration, my Immigration Law Clinic students and I became keenly aware of the manipulability of this system, as Trump’s attorneys general “self-referred” seventeen cases for re-decision in four years, almost as many as in the previous seventy-six years combined since the self-referral power was created in 1940. Many of those decisions uprooted years of settled precedent, leaving some of our clients without remedies that had previously been available.In my administrative law courses, I teach students about the ways in which the Constitution is designed to ensure that executive power is balanced by both the legislative and the judicial power. This balance is essential to ensure that due process is given in legal proceedings with serious consequences, another fundamental value enshrined in both the Fifth and the Fourteenth Amendments. Despite the Founding ideal of the balance of powers, overweening executive power has been a concern to many law and public administration scholars since at least the FDR presidency. Many scholars focus on the New Deal and its expansion of federal economic legislation, with new federal agencies to implement them, as the fulcrum around which power shifted toward the executive. My research revealed that the FDR administration’s broad view of executive power also affected immigration justice and continues to do so to this day. Although civil rights-minded cabinet members and others in the FDR administration cautioned the president against moving immigration services (which then included both the investigation and the adjudication functions) into a law enforcement agency, FDR demurred that he had no alternative in light of the war threat. After more than a year of study and reluctance, FDR yielded to the advice of his influential Undersecretary of State, Sumner Welles, and made the move.
Alison Peck The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction University of California Press240 pages, 6 x 9 inches ISBN 9780520389663
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