What kind of law is immigration law?
Is immigration law its own, exceptional creature, independent of all other areas of law? Or, is immigration law more porous, absorbing features of other closely related areas of law?
Questions like these have challenged immigration law for some time. Even going back to the Nineteenth Century, the Supreme Court described immigration law as some other kind of law, or at least to be similar to some other type of law for some purposes. At the same time, however, the Court recognized immigration law’s unique function and announced that the political branches have plenary power over immigration law.
The exact nature of immigration law is unresolved. Modern immigration law scholarship has examined the intersections between immigration law and constitutional law and criminal law.
Most recent events have focused the spotlight on the interplay between immigration law and administrative law. The Supreme Court just agreed to hear a case, Texas v. United States, which directly raises questions at the intersection of immigration law and administrative law.
The future of President Obama’s policy to defer the removal of certain undocumented parents of US citizen children hinges on whether the Supreme Court affirms the reasoning of lower court decisions steeped in administrative law principles. On the one hand, this case raises questions about how immigration law will be treated under administrative law principles. On the other, the case also holds importance for administrative law generally, because through this case the Supreme Court may address questions that are unresolved across administrative law.
The intersections of immigration law and administrative law have long engaged my scholarship. I am determined to help bridge divides between immigration law and administrative law scholarship. Therefore, I was thrilled to help bring together four wonderful scholars to delve into the question, “Is immigration law administrative law?” as a part of the 2016 Association of American Law SchoolsConference. The program drew an engaged audience of both immigration law and administrative law academics. The conversation continues through an online symposium this week. Tomorrow will feature Chris Walker (Ohio State), Wednesday David Rubenstein (Washburn), Thursday Shoba Wadhia (Penn State), and Friday Bijal Shah (NYU Lawyering Program). [Editor’s Note: Indeed, we might as well also include the provocative post by Michael Kagan (UNLV) from this weekend entitledDAPA’s Unlawful Presence Problem.]
As this series will illustrate, Texas v. United States is a catalyst for immigration law scholars’ endeavors to better understand administrative law. Not only do immigration law scholars need to engage with administrative law, but there is also plenty of space for administrative law scholars to embrace immigration law. Professor Walker will tell us why, next.
This post is part of a week-long online symposium entitled Is Immigration Law Administrative Law?, which is based primarily on a panel by the same name that was part of the 2016 Annual Meeting of the Association of American Law Schools.