An interview with Immigrants' Rights Project Director Lucas Guttentag on Challenging the 1996 Immigration Laws

"New Immigrant Law Threatens People and Principles"

An Interview with Lucas Guttentag, Director of the ACLU Immigrants' Rights Project
Reposted from, and with the permission of, TexLaw.

Lucas Guttentag, a Harvard Law School graduate and adjunct professor at Columbia and Boalt Hall schools of law, has concentrated his career on helping people without a voice be heard. In 1985, after clerking for Texas federal judge William Wayne Justice and seven years as a civil rights attorney and law professor, he joined the American Civil Liberties Union National Office. In 1987 he became the first director of the ACLU's national Immigrants' Rights Project . It now has offices in New York and San Francisco and is dedicated to enforcing the constitutional and civil rights of immigrants in the United States. In the 10 years since its founding, the Immigrants' Rights Project has successfully litigated many individual and class action cases against the government. The Project's work has been pushed into high gear with passage of the 1996 Anti-terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. The 1996 laws enacted unprecedented restrictions on the federal courts by trying to eliminate judicial review over many immigration cases. Guttentag and the ACLU is involved in cases in nearly every federal circuit in the nation fighting the "unconstitutional" provisions of the new laws. On Dec. 30, 1997 Supplements Editor Kristin Carder spoke with Lucas Guttentag on the issue of judicial review in immigration cases. Following is a transcript of that discussion, edited for length and style.

WHY DID CONGRESS WANT TO SHARPLY CUT BACK ON JUDICIAL REVIEW OF IMMIGRATION CASES?

It's hard to attribute a specific intent to Congress. I think there was a misperception among some members of Congress that the courts were playing too large a role in reviewing the government's immigration policies and orders. But more fundamentally, the new restrictions on the courts are part of a larger hostility to the independence of the judiciary. That attitude is also manifesting itself in attacks on individual judges, on the role of the Supreme Court, and on the principle of judicial review itself.

In relation to immigration specifically, I think there was a sense by some in Congress that individual immigrants were delaying their deportation while the courts reviewed their cases. This delay, however, is not the fault of the courts or the result of judicial review. It is inherent in the inefficiencies of the INS and in the running of a massive enforcement system. Whether a single agency can both grant benefits to deserving individuals and enforce the departure of others is a difficult and complex question. Sure, there are areas where the deportation system can be improved. But attacking the courts and the oversight they provide to insure that the system is run fairly and in compliance with our laws and the Constitution is a mistake. Making the INS less accountable is not the answer.

HOW IS THE GOVERNMENT INTERPRETING AND APPLYING THE NEW PROCEDURES?

Based on our experience, the government -- through the Attorney General -- has taken every opportunity to adopt the harshest possible interpretation of the new laws. The 1996 amendments raise many difficult questions, including whether a provision that eliminates certain "waivers" of deportation that have been part of the immigration law for almost 100 years should apply retroactively. The Attorney General's position is that waivers are prohibited retroactively even for people who have lived here legally for 10 or 20 years, who committed a minor criminal offense decades ago, and who have lived productive and lawful lives ever since. Under the Attorney General's interpretation of the law, these legal residents are now detained and deported. We do not believe that Congress intended that result or that the law authorizes it.

But when individuals go to court to seek review of the government's interpretation, the Attorney General argues that no court at any level can even review her ruling. That would mean that the executive -- and it alone -- decides what the law means and who will be deported. We believe that the Constitution prohibits conferring such unbridled authority on the Attorney General and that doing so is antithetical to protecting individual rights against government abuse.

WHAT IS THE ACLU'S POSITION ON JUDICIAL REVIEW IN IMMIGRATION CASES?

First and fundamentally, that an alien subject to deportation from the Unites States has a right to have the legality of that order reviewed by a federal court. The Constitution requires review in these circumstances and we believe that the existing federal habeas corpus statute authorizes it. Congress has the power to change the jurisdiction of the federal courts and to decide which court will hear which types of claims. But there are constitutional limits to how far Congress can go, and it cannot bar judicial review altogether when the liberty of an individual is at stake. Deportation orders necessarily involve the rights and liberties of individuals. Therefore, judicial review of those orders is constitutionally required.

We believe judicial review is constitutionally guaranteed by the writ of habeas corpus, by the due process clause and by the principle of separation of powers. The writ of habeas corpus is key. It provides for a judicial determination when an individual challenges the legality of the government's reason for taking him or her into custody. When the executive seeks to deport someone, an action that necessarily involves custody, the courts have the right and duty to review the legality of that decision.

IN WHAT WAYS THE ACLU CHALLENGING THE NEW LAWS?

We're acting on two fronts. First, the Immigrants Rights Project is systematically litigating cases around the country where the government is arguing that the 1996 immigration laws preclude all judicial review. We have cases in most of the federal circuit courts, are working with lawyers nationwide and are representing many individual immigrants affected by the new "court-stripping" laws. Second, through opportunities like this we are reaching out to the larger legal and public community to explain why we believe the 1996 court-stripping laws pose such a grave threat to our constitutional system under which the courts have enforced the rule of law since [the landmark Supreme Court case that established judicial review,] Marbury v. Madison.

WHAT ARE THE POTENTIAL DANGERS OF THE NEW PROCEDURES

There are two dangers. The first is to the individual who will be deported in violation of law. Countless longtime residents of our country will be expelled based solely on the say-so of the attorney general. The second is to the principle of judicial review and the independence of the courts. In the recent past other proposals to strip the courts of their jurisdiction over controversial issues were defeated. In each instance, they were recognized for what they are: a backdoor amendment to the Constitution. Congress was trying to eliminate basic rights by prohibiting the courts' ability to enforce those rights. For example, opponents of integrated schools, of women's right to reproductive choice and to separation of church and state tried to strip the courts of their jurisdiction over school desegregation, abortion and school prayer cases. In each instance, the civil rights, civil liberties and women's rights communities mobilized against the proposed laws. As a result, the public realized that taking away the court's power to enforce rights is tantamount to taking away the rights themselves. In 1996, Congress stripped the courts of their historic jurisdiction over immigration and a few other types of cases. Because the targets are the most vulnerable in our society: immigrants, prisoners and poor people, there was little public awareness or opposition.

WHAT IMPLICATIONS DOES THIS ISSUES HAVE OUTSIDE THE IMMIGRATION AREA?

Again, the fundamental principle is the role of the courts in our system of government. The courts protect individuals against government power. Without the courts, there is no limit to what Congress can authorize the government to do. And there is no limit on the government's power to decide what the law means and how to apply it. If Congress can deny judicial review to immigrants who face the dire consequence of deportation, it is hard to fathom when recourse to the courts could not be denied. In other words, this attack on the courts has implications for every citizen of the United States who has an interest in making sure that the federal government remains accountable.

IN THESE CASES, WHAT ARE THE ACLU'S MAIN ARGUMENTS?

Our principle argument in the immigration cases is that habeas corpus review by a federal court must be available to a non citizen subject to deportation. Federal habeas corpus jurisdiction has been a part of our law since the first Judiciary Act of 1789 and is embodied in the Constitution as well. Judges and lawyers usually think of habeas corpus as a challenge to a criminal conviction. But that's not the role of habeas in immigration cases. In the immigration context, we are returning to the core function of habeas: judicial review to determine whether the executive is holding someone in custody in violation of law. The immigrant who files a habeas writ has not had any judicial determination of his deportability at any time. The habeas proceeding is the only check on the government's action. Without that review, immigrants would be subject to deportation on the unilateral authority of the Attorney General. Since the 1800's, the courts have recognized that habeas corpus is the fail-safe mechanism by which an immigrant can obtain review of a deportation order. Importantly, that habeas review encompasses whether the deportation is based on a proper interpretation of the law, whether there is any evidence to support the decision, whether there has been a lawful exercise of discretion, and, of course, whether any constitutional rights have been violated.

WHAT ARE SOME OF THE PRECEDENTS ON WHICH THE ACLU IS RELYING?

There are many, many habeas cases in the Supreme Court and the appellate courts from the 1800's to the present that are relevant. Among the most important are several Supreme Court immigration cases showing that the Constitution requires habeas review of deportation orders. These include Heikkila v. Barber, Accardi v. Shaughnessy, and Hintopoulos v. Shaughnessy. In addition, the 1996 Felker v. Turpin decision holds that the federal courts' statutory habeas corpus jurisdiction cannot be repealed unless Congress does so explicitly.

IS THIS A LIBERAL VS. CONSERVATIVE ISSUE?

No. It shouldn't be. There are many conservatives who recognize that preserving the role of the courts in our system of government is more important than any immediate political issue. They realize that "stripping" the courts of their historic jurisdiction in one area, such as immigration, constitutes a threat to the role of the courts in every other area. Whether the issue is environmental protection, workplace safety or business and property rights, the courts insure that every person and every government agency is subordinate to the rule of law. The particular issue that raises the question of judicial review might separate people into liberal or conservative camps, but respecting the importance of the courts is not, fundamentally, a liberal or conservative issue.

WHAT ARE YOUR PREDICTIONS ON THE OUTCOME?

I gave up predicting the results in particular cases a long time ago. But on the fundamental principle of judicial review, I am confident that the courts will continue to review immigration orders. Never in our country's history has an immigrant been subject to deportation without review by the courts of the legality of that order. If the 1996 laws have vested that kind of unprecedented authority in the executive, I believe the courts will declare it the law unconstitutional. It's too early to say whether any of the cases now in the courts of appeals will reach the Supreme Court. We'll have to see.

Article reposted with permission from TexLaw.