Abstract

Excerpted From: Stella Burch Elias and Paul Gowder, Against Attorney General Self-referral in Immigration Law, 109 Minnesota Law Review 2331 (May, 2025) (294 Footnotes) (Full Document)

The Attorney General self-referral power in immigration adjudication creates an invisible, unpredictable, and insurmountable barrier for immigrant respondents which is fundamentally incompatible with the basic precepts of the Rule of Law. Under this referral power, a politically appointed Executive Branch official, the Attorney General, can assume direct control of a case pending before the highest administrative body for interpreting and applying the immigration laws, the Board of Immigration Appeals (BIA). The Attorney General can then issue a precedential and binding opinion that reshapes immigration law nationwide with immediate and retroactive effect. There are no formal limitations on the Attorney General's discretion to interfere with pending cases before the BIA. The Attorney General may, therefore, at any time, act to overturn decisions made by immigration judges or the BIA if those decisions do not align with the policy goals of the current Executive Branch or the personal goals of the incumbent Attorney General.

Traditionally, the self-referral power was used sparingly in immigration proceedings, with a handful of unusual and noteworthy cases garnering the national spotlight after the issuance of Attorney General opinions. Immigration law scholars, therefore, analyzed these key cases to illustrate the various ways in which agency-head adjudication in the immigration law context differed from other areas of administrative law. In recent years, however, there has been an explosion of immigration rulemaking-by-self-referral, raising more fundamental and urgent concerns about the continued existence of this practice. Research by law students and immigration law advocates has shed light on the far-reaching effects that some of these most recent Attorney General self-referral decisions have had on both the practice of immigration law and the lived experiences of immigrant communities in the United States. However, to date, no legal scholarship has addressed the more fundamental question of whether the Attorney General self-referral power in its present form remains lawful--i.e., whether or not its form, function, and scope are commensurate with the Rule of Law. This Article fills that gap.

This Article considers, as a case study, the use of the Attorney General self-referral power during the 2017-2021 presidency of Donald J. Trump. In seventeen highly significant cases, the first Trump administration used the self-referral power to make lasting changes to the definition of asylum, the docket management strategies of immigration judges, and the extent of immigration consequences for immigrants with criminal convictions. It even used the Attorney General referral and review power to expand the authority of the Attorney General to make binding law, by broadening the existing scope of the Attorney General referral and review power! In the four years that followed, Attorney General Merrick Garland largely limited the Biden administration's wielding of the self-referral power in immigration proceedings to reversing the Attorney General decisions made by its predecessor administration, but took no steps to alter the parameters of the power itself. As of this writing, the second Trump administration has begun, and against this backdrop, the operation of the Attorney General self-referral power continues to serve as a powerful example of untrammeled executive power, rather than judicial neutrality and restraint. We therefore argue that its continued existence is incommensurate with the Anglo-American traditions of separation of powers, judicial independence, and the rule of law.

This Article proceeds in four Parts. In Part I, we provide an overview of the parameters of the Attorney General self-referral power in immigration proceedings. We describe the historical evolution of the power from its origin in the 1940s through its current use in the twenty-first century. We then discuss how, in common with other immigration and administrative law scholars, we find the recent use of the self-referral power to circumvent transparent legislative and regulatory rulemaking to be deeply problematic. As a case study illustrating the recent use of the Attorney General self-referral power, we discuss the Attorney General immigration decisions issued during the first Trump administration.

In Part II, we situate our critique of the Attorney General immigration self-referral power within the context of the Anglo-American tradition of judicial independence. We describe the theoretical and practical importance of the neutral enforcement of preexisting legal rights rather than casting those rights aside for policy purposes as a central tenet of the rule of law.

In Part III, we consider the potential pitfalls of administrative agency-head adjudication, with respect to the simultaneous exercise of judicial and quasi-legislative power by the executive branch in such cases. We posit that the Attorney General self-referral power in immigration proceedings provides a compelling case study for such critiques.

Finally, in Part IV, we set forth our argument against the use of the self-referral power in immigration cases. We argue first that the self-referral power is arbitrary in nature, permitting a political appointee to directly adjudicate cases in their personal capacity, at their own untrammeled discretion. We argue second that the Attorney General's immigration self-referral power, by its very nature, undercuts the trappings of judicial neutrality and independence in which we cloak our system of immigration adjudication. And we argue third, and finally, that the self-referral power is inherently hypocritical. It is impossible for a politically appointed Attorney General to argue credibly that they can serve as passive, neutral decisionmakers in individual immigrants' cases when the power that they wield is used so frequently as an instrument of pure policymaking. We therefore conclude that the self-referral power should be abolished.

[. . .]

The Attorney General self-referral power's time has passed, and it must now be abolished. As we demonstrate in Part I of this Article, Attorney General review, which was originally conceived as a rarely used safety-valve mechanism for the most challenging of immigration cases, has now been transformed in the early twenty-first century into a bald political tool that an administration with an unprecedentedly aggressive political agenda may use without restraint to bypass the due process protections of the Constitution. A close examination of the pattern and practice of the exercise of this authority from 2017 to 2021 shows that the continued existence of the Attorney General's self-referral power is incommensurate with our constitutional commitments to the Rule of Law.

As we discuss in Part II of this Article, the Framers of the Constitution were vehemently opposed to untrammeled executive control of judicial decision-making. They enshrined in our Constitution the same values that led Coke to declare in 1607 that: “[T]he King cannot take any cause out of any of his Courts, and give judgment upon it himself.” As we note in Part III, agency-head adjudication in the modern administrative state may pose a challenge to the enduring functional operation of this precept today, but it nonetheless continues to apply.

For the Attorney General to interfere directly in pending immigration cases, in other words for him to take those causes out of his “courts” and to give judgment upon them himself, runs contrary to the foundational precepts of the Rule of Law. As we posit in Part IV of this Article, this executive interference in the adjudicatory process is particularly egregious in immigration proceedings, which routinely involve individuals who have built up reliance interests going to the heart of their lives on the legal rules then in place. Immigrant respondents may have built families, careers, and property holdings in the United States, and may have abandoned substantial resources and ties in their home countries to come to our shores. Asylum seekers, whose security of life and limb may be put in jeopardy if they are removed from the United States, may depend on the legal fidelity of an immigration system refraining from refouling them to persecution or torture. Thus, when the Attorney General arbitrarily decides to adjudicate an immigration case ex cathedra, and for reasons of state, that decision is incommensurate with the Rule of Law. And when the process for Attorney General self-referral is embedded in a system that purports to embody the delivery of impartial justice, that dresses up administrative officials in robes and calls them judges and claims they offer fair hearings, but at the same time allows binding rulings by the Attorney General to entirely circumvent those ““hearings,” that is inconsistent with the Rule of Law. The continued operation of Attorney General self-referral in immigration proceedings is an insult not merely to the autonomy and dignity of the individual immigrants who finds themselves brought before such a prerogative tribunal, but to the law itself. As we reel from the many challenges to the rule of law in immigration law and elsewhere in the second term of President Donald J. Trump, and as we observe ongoing efforts to radically overhaul our immigration laws by circumventing the checks and balances of our established systems of judicial review, one thing is clear: The self-referral power cannot stand

Professor of Law and Chancellor William Gardiner Hammond Fellow in Law, University of Iowa College of Law. J.D. 2009, Yale Law School; M.A. 2006, Oxford University; B.A. 1998, Oxford University.

Professor of Law, Northwestern Pritzker School of Law. Ph.D. 2012 Political Science, Stanford University; J.D. 2000, Harvard Law School; B.A. 1997 California State University, Los Angeles.