VOLUME 168, ISSUE 4 March 2020

No academic study has empirically analyzed decisions by United States immigration judges to deport noncitizens without first providing them a day in court, a procedure known as in absentia removal. Yet bold assertions by members of the current presidential administration that immigrants “never” appear in court drive central policy decisions on immigration enforcement, including growing the immigration detention system, limiting access to asylum, and building a border wall. By reviewing immigration court data from 2008 to 2018 made publicly available by the Executive Office of Immigration Review, this Article provides the first-ever independent analysis of in absentia removal orders. Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction. These and other important findings have immediate implications for key immigration policy questions.

There is something missing in interpretive theory. Recent controversies—involving, for example, the first travel ban and funding for sanctuary cities—demonstrate that presidential “laws” (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that does not seem right: theories of interpretation depend on both constitutional law and institutional setting. For statutes, the relevant law comes from Article I and the procedures governing Congress. For presidential directives, the starting point must be Article II. This Article contends that Article II and the distinct institutional setting of the presidency point toward textualism. Article II, particularly the Opinions Clause, gives the President considerable power to structure the process by which he issues directives. Drawing on various sources—including the author’s interviews with officials from the Trump, Obama, and other administrations—this Article offers a window into that process. Since at least the 1930s, Presidents have invited agency officials to draft, negotiate over, and redraft presidential directives. The final directive signed by the President may not reflect his preferred substantive policy; instead, Presidents often issue compromise directives that reflect their subordinates’ recommendations. This Article argues that courts respect that structure, and hold Presidents accountable for any mistakes, by adhering closely to the text. Thus, whatever one thinks about honoring the textual compromises that come from Congress, there are independent and important reasons to hew strictly to the text that comes from the White House. Notably, this analysis has important implications not only for interpretive theory but also for broader questions about the constitutional separation of powers. In an era of ever-expanding presidential power, Presidents have at times (surprisingly) allowed themselves to be constrained by their own administration.

Modern debates over the scope of federal treaty-making power are framed by histories written at the turn of the last century. Some of these histories gave a legal imprimatur to the acquisition of the insular possessions and the exercise of colonial government over them. In so doing, the authors claimed that the American treaty-making power obviously contained the law-of-nations power to acquire territory and take an imperial sovereign’s title to it. Drawing on these histories, current disputes about the treaty-making power take a “dual-sovereignty” lens, where the central question is how to allocate treaty-making power between states and the federal government. This Article contends that the canonical accounts of the treaty-making power erased a vibrant, contrary view of foreign-affairs federalism. This alternative theory argued that Tenth Amendment reserved sovereign powers to the people—the popular sovereign—that prohibited both the state and federal governments from exercising an “eminent dominion” over territory. This view rejected the dual-sovereignty perspective, instead arguing that neither the state nor federal government could acquire territory, cede territory, or hold original title to territory so acquired. The Article traces this erased idea through bureaucratic archives, state and federal court decisions, and writing by elite legal scholars. In light of the contingency of this history, courts can be misguided when they rely on historically inflected arguments to describe the treaty-making power and the status of American territory that is not yet a state. Our canonical histories are often motivated glosses that shored up the imperialism of their era, and do not offer easy solutions to hard modern cases.