When Interpretive Communities Clash on Immigration Law: The Courts’ Mediating Role in Noncitizens’ Rights and Remedies

Immigration law gains clarity through the lens of Robert Cover's compelling work on law as a "system of meaning." Cover's vision inspires us to consider immigration law as a contest between two interpretive communities: acolytes of the protective approach, which sees law as a haven for noncitizens fleeing harm in their home countries, and followers of the regulatory approach, which stresses sovereignty and strict adherence to legal categories. Immigration law's contest between contending camps need not be a zero-sum game. As Cover and Alex Aleinikoff observed in their classic article on habeas corpus, a legal remedy can also be a "mediating device." In immigration law, courts can serve this mediating function by reconciling the values of protection and enforcement. This Article considers the mediating devices that courts can employ on three salient immigration law issues: 1) the availability of habeas corpus in expedited removal, which the Supreme Court rejected in DHS v. Thuraissigiam; 2) judicial review of executive branch action, such as President Trump's ban on immigration from several majority-Muslim countries, which the Court upheld in Trump v. Hawaii, and President Trump's attempted rescission of the Deferred Action for Childhood Arrivals (DACA) program, which the Court invalidated in DHS v. Regents of the University of California; and; 3) procedural and substantive bases for challenges to immigration detention.

In each context, the Article argues that courts should require more tailored government actions and acknowledge the need for workable enforcement. This approach preserves a measure of deference for the political branches while checking arbitrary government actions that put noncitizens at risk.