- The purpose of law is to provide certainty
- People want/need to know consequences of behavior, especially for those engaged in commercial activities—need to know boundaries
- Loose interpretations can present some major problems, because application unclear
- You are witnessing an internal struggle within the judiciary about its relationship with the legislative and executive branch
- Chevron, etc.—this area of law very confusing
- While some cases may appear clear you can see that they (the court) could have viewed the statute that they were reviewing in a different way
- Just b/c there are rules doesn’t mean they area always applied in the same way—two courts could come out completely differently
- SCOTUS only decides approximately 200 cases per year
- Wait until conflict is sharp before intervening
- Can mean that uncertainty/unsettled areas of law remain for a while
- Courts are not supposed to be partners with the legislature
- The legislative and executive are more like partners
- Courts will decide when Congress or the agency has gone too far
- Court will guard their limited jurisdiction
- Very territorial and protective!
- Court views its role as essential to providing a sense of certainty in the law
- Once again, certainty is key
- Agency rules have nationwide application and can give a sense of greater certainty than court decisions, especially those of lower courts
- When an agency decides or gives an interpretation, it has impact across the U.S.
- Except for SCOTUS, a court decision applies in a narrow geographic area (unless agency adopts it or other courts pick it up)
- Thus can have 1 set of rules for U.S., and all of U.S. except for 9th circuit or something. Or even N.D. Cal…
Immigration cases are different than other kinds of cases
- Greater deference to agency (often)—
- delegation that's written into statute
- by its nature, authority to determine rules of entry, or who can have status is very different that rules of other areas of law—Congress can do most of what they want
- Fewer constitutional constraints
- Sometimes there are no constitutional concerns
- Thus statutory construction especially key
Useful Source Materials for Immigration Statutory Interpretation
- Start with statute (Immig. Natu. Act)
- Regulations: Title 8 C.F.R. and Title 22 C.F.R. §§ 40-46.—changing this is hard—agencies are bound by own regulations
- DHS policy manual—the "Operation Instructions" (O.I.)—more changeable, more used day-to-day
- Dept. of State—Volume 9 of the Foreign Affairs Manual (F.A.M.)
- The ordinary and plain language of the statute will be followed even if the gov’t agency charged with its interpretation has previously applied it in a contrary manner
- Part of the reason for a rule of interpretation which relies on a very straight-forward reading is that of separation of powers
- The legislative body is best suited to statutory drafting
- The court doesn’t write laws, they interpret them and apply them in a narrow way
- Under the plain-meaning rule as applied in Phinpathya is that the legislature and not the courts are responsible for correcting drafting errors in a statute
(of Elian Gonzalez fame)
- Unless a statute's language is unambiguous, a statute will not be interpreted as divesting a court of all jurisdiction to review agency action.
- It is assumed that Congress will not inadvertently deprive a person of all avenues of review if agency action.
- Particularly in cases involving gov’tal agency action the court will look to whether Congress has spoken directly on the question?
- "Agency" action usually implicated delegated authority by Congress to a part of the executive branch
- Where there has been a delegation of authority
- Silence on a particular question will be treated as an expectation that gap filling will be done by the agency.
- In which case, the reviewing court may not impose its own construction.
- Mead should be viewed as a refinement of Chevron
- Chevron deference will only extend to agency action that amounts to formalized rule-making or adjudication
- It does not extend to the less formal rules or policies which make up agency action.
- Constitutional considerations
- Bills of attainder
- Due process
- Takings clause
- Ex post facto prohibition
- Of paramount concern is the notion that laws are designed to create a sense of order and understanding of the rules to be applied in a given situation
- Therefore statutes will not be applied retroactively unless the statute clearly calls for that interpretation
- Retroactivity of statutes as applied to immigration law
- Congress may enact laws which are retroactive but only within proscribed areas
- While the enactment in question was not a criminal statute, it did attach an immigration consequence to a criminal conviction
- Retroactivity will only be applied where it is absolutely clear on the fact of the statute