Wednesday, May 17, 2006

A specialized Immigration Court of Appeals?

There's been more buzz about a suggestion that, as far as I know, got its first large-scale public reception about six weeks ago: making a specialized Immigration Court of Appeals---or consolidating all such appeals in, say, the U.S. Court of Appeals for the Federal Circuit---that would sit on top of the (executive branch) Board of Immigration Appeals. Right now, such cases are appealed directly to the circuit court of appeals in which the BIA hearing was physically held. (This is the result of the Ashcroft reform, which is generally, but not universally, considered a disaster, and is slowly being undone. It gives direct access to a very high court, but this leads to overworked judges, and lots of summary and unpublished opinions. If you have worked on an immigration case, you know that the inability until recently to cite an unpublished opinion is maddening.)

The bill S.2611---Arlen Specter's Comprehensive Immigration Reform Act of 2006, which was moved forward on May 15th to be placed on the calendar of the Senate, and is probably being debated as we speak---contains in Sec. 707 the demand for a GAO study on the possibility of:
(1) consolidating all such appeals into an existing circuit court, such as the United States Court of Appeals for the Federal Circuit;
(2) consolidating all such appeals into a centralized appellate court consisting of active circuit court judges temporarily assigned from the various circuits, in a manner similar to the Foreign Intelligence Surveillance Court or the Temporary Emergency Court of Appeals; or
(3) implementing a mechanism by which a panel of active circuit court judges shall have the authority to reassign such appeals from circuits with relatively high caseloads to circuits with relatively low caseloads.
Some possible fears.
  1. A recent New York Times editorial worried that judges nominated to whatever new court took over immigration appeals could be screened for their immigration beliefs by their political appointers. Normally one can't dissociate a judge's immigration attitudes from his broader beliefs, so politicos are forced to a thumb-up/down response to a package deal. (Of course if immigration attitudes are strongly correlated with other politically desirable judicial traits, this subject of law may already be capable of being screened--but I suspect that immigration is largely orthogonal to traditional left-right distinctions.) It's somewhat, um, utilitarian of the NYT to make this argument, given their past attitudes to judicial screening. During Clinton's years: anti-filibuster. During Bush: pro-filibuster. Pot-kettle-black: attacking the Republicans as hypocritical on the filibuster. Good God. Institutional memory hurts. If you think you can win on an issue, you usually call for divisibility; if you think you're likely to lose, you demand a package deal. I don't think the New York Times has faith in the ability of the liberal view of immigration to succeed in the marketplace of ideas--which is sad, because I probably agree with the NYT on this issue.
  2. It is sometimes desirable to have a split in circuits, since this may drive clarifications and developments in the law. Of course, it can also drive confusion and manifest injustice. This is, at root, the problem with federalism. It's both great and it sucks. Go figure. What are the underlying facts that support splits in immigration law? Decentralization makes some sense with regard to criminal, tort, and education law. But what subject could be more apt to national control than the issues of national borders? It's hard to trust liberals or conservatives to use this argument honestly, since both are fair-weather federalists at best.
  3. The danger of institutional capture is quite profound here. If you give lobbyists and activists a single target, they can train all their fire on it; similarly, an immigration-heavy court is vulnerable to infiltration and self-selection by those possible judges who have strong views on immigration. One good example of institutional capture is the U.S. Court of Federal Claims, which adjudicates damage claims against the federal government under, say, the Tucker Act and eminent domain and regulatory takings. This court is generally viewed by outsiders as "tilted ideologically to the right." W. John Moore, Just Compensation, Natl. J., June 13, 1992, at 1404. They are considered strongly libertarian, which scares environmentalists who worry about the danger of the regulatory takings doctrine. Another example of institutional capture is the Patent and Trademark Office, and what amounts to its appellate division, the abovementioned U.S. Court of Appeals for the Federal Circuit. Both have been strongly criticized as being profoundly expansionist, and this is ascribed to their having been captured by pro-patent forces. The very mission statement of the PTO reads: "The primary mission of the [PTO] is to help customers get patents." Not exactly ringing with awareness of the danger of the anti-commons!
There seem to be arguments on both sides: the main danger is that this is a stupid plan to correct for a previous stupid plan, the Ashcroft debacle. The GAO report will come out within 180 days of the passage of S.2611 (or something like it); so the battle to decide what our immigration appeals system looks like is really gearing up.

UPDATE: a colleague has sent me a letter from Harold Koh, dean of Yale Law School, to Senator Specter on this subject. I've been unable to find it online, so I put up the text below the fold. [[[continue reading...]]]

March 14, 2006
The Honorable Arlen Specter
Chairman, Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Mr. Chairman:

We are law school deans and legal scholars whose areas of scholarship
include federal courts, administrative law, immigration law, and
constitutional law. We write to express our profound reservations
regarding the legislative proposal found in Section 701 of your draft
bill entitled February 24, 2006, Chairman’s Mark. This provision would
place exclusive jurisdiction over all future immigration appeals in
the U.S. Court of Appeals for the Federal Circuit and eliminate the
role of the regional courts of appeals in such appeals. We urge that
this proposal be withdrawn immediately, so that it can be subjected to
the careful study that such a fundamental change in our legal order
warrants

Our concerns are based on: the strong, historically grounded
presumption favoring the use of Article III appellate courts of
general jurisdiction in our judicial system; the important values
underlying that tradition; and the often unforeseen negative
consequences that arise when specialized courts are established (and
especially when they are established hastily, as this bill would do).

We are, unsurprisingly, not of one view regarding the costs and
benefits of specialized courts. But we strongly share the view that
transferring categories of cases involving claims of personal liberty
that are currently heard in the regional circuits to a single,
narrowly focused, specialized, commercially oriented court should not
be done precipitously, or without hearings in which experts on
immigration, federal jurisdiction, constitutional law, and
administrative procedure can be heard. We are fully mindful of the
caseload pressures that some circuits are presently facing, due in no
small part to the upsurge in immigration appeals. Nonetheless, we do
not believe that the current situation warrants the radical step of
relegating all immigration appeals to the Federal Circuit, a court of
specialized jurisdiction that currently hears cases involving areas
quite distant from immigration law, such as patents and trademarks,
veterans’ claims, and other miscellaneous matters.

Legal scholars have in the past raised reservations about specialized
courts on numerous grounds. Generalist judges have the benefit of
applying their broad judgment and experience drawn from deciding cases
across many and varied fields of law, while specialist judges are
exposed solely or mostly to a single narrow field of law. This can
generate not only tunnel vision but also an ossification of views in
such judges. Moreover, specialized courts are considerably more prone
than generalist courts to being “captured” by opposing interest
groups or the agency they review. These are dangers that should not be
lightly undertaken when liberty is at stake.

The Honorable Arlen Specter
March 14, 2006
Page 2

In immigration cases, for example, judges are typically asked to
interpret the federal immigration statute, as well as complex and
interrelated questions of constitutional law, criminal law, habeas
corpus, state criminal statutes, family law and individual
liberty. The specialized judges of the Federal Circuit rarely, if
ever, now confront any of these types of claims. Thus, their
consideration of these multifaceted and important issues would arise
overwhelmingly, if not exclusively, in the immigration context. The
Federal Circuit judges would not benefit from the broader experience
of considering similar questions in a wide variety of contexts and
cases that has been one of the hallmarks and strengths of the
generalist tradition of Article III judging.

In addition, as a practical matter, the Federal Circuit would face an
initial caseload crisis and many novel transitional practical and
legal issues, as it confronts the large number of new immigration
appeals from throughout the country. This caseload increase could
dilute the quality of the Federal Circuit’s decision-making not only
in the immigration cases that would be added to its docket, but also
in the areas of its existing jurisdiction. Some of those transitional
issues may diminish over time. Specialized courts are, however, far
more vulnerable to fluctuations in caseload because of their limited
jurisdiction. These kinds of fluctuations can be even more extreme
with immigration cases, due to such factors as changes in patterns of
immigration enforcement and the impact of federal legislation.

Significant issues of fairness and the perception of access to the
courts would also be raised if henceforth, all immigration cases were
heard exclusively in the Federal Circuit. Immigrant petitioners,
unlike commercial litigants, are often not represented by legal
counsel and may be incarcerated during the pendency of any appeal.

We believe, therefore, that altering the appellate jurisdiction of the
regional federal courts to centralize claims in a single specialized
court ought to be, if anything, a response of last resort. This option
should be pursued only after the Judiciary Committees of Congress hold
hearings at which experts are called and thorough study is made. Such
a hearing would permit a thorough consideration of the costs and
benefits of the specific proposal, as well as consideration of the
experience with previous or current specialized courts.

For all the foregoing reasons, we urge you to delete 701 from the
Chairman’s Mark of the immigration legislation, and to consider that
proposal, if at all, at a time and in legislation where the broader
implications and various considerations raised by this proposal can be
fully expressed and evaluated before enactment.

We note that the proposal in section 707 of the Chairman’s Mark to
create a new certificate-of-reviewability gatekeeper system for
immigration appeals is also untested in relation to executive
detention, and it raises constitutionally-sensitive questions of
access to judicial review that would benefit from further study by
your Committee. By expressing our opposition to 701 we do not mean to
suggest any endorsement of section

The Honorable Arlen Specter
March 14, 2006
Page 3

707 or any other provision of the proposed bill, about which we
express no collective view.

If further information regarding our views would be helpful, Harold
Hongju Koh would be pleased to speak or meet with you.

Respectfully,

Rochelle C. Dreyfuss
Pauline Newman Professor of Law
New York University School of Law

David A. Martin
Warner-Booker Distinguished
Professor of International Law
Class of 1963 Research Professor
University of Virginia School of Law

Gerald L. Neuman
Herbert Wechsler Professor of Federal
Jurisprudence
Columbia Law School

Richard L. Revesz
Dean and Lawrence King Professor
of Law
New York University School of Law

Peter H. Schuck
Simeon E. Baldwin Professor of Law
Yale Law School

Kathleen M. Sullivan
Stanley Morrison Professor of Law and
Former Dean
Stanford Law School

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe
Smith Professor of International Law
Yale Law School

Henry Paul Monaghan
Harlan Fiske Stone Professor of
Constitutional Law
Columbia Law School

Judith Resnik
Arthur Liman Professor of Law
Yale Law School

Philip G. Schrag
Professor of Law
Georgetown Law School

David L. Shapiro
William Nelson Cromwell Professor
of Law
Harvard Law School

Institutions listed for identification purposes only

cc: Members of the Committee on the Judiciary

[Is it possible they got Secs. 701 and 707 confused, or that the bill has since switched them? The current 701 just increases the number of immigration personnel, which seems to me to be the only currently feasible half-step towards solving the problem. Sec. 707 is the reorganizational portion. Hmm.]

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