Analysis

Barrett's Textualism Could Doom Immigration Challenges

Law360 (September 28, 2020, 10:07 PM EDT) -- U.S. Supreme Court nominee Amy Coney Barrett's tendency to defer to the executive branch's authority could pave the way for the Trump administration to prevail against challenges to its immigration policies, from the rollback of Deferred Action for Childhood Arrivals to its wealth test for immigrants.

Judge Barrett of the Seventh Circuit, President Donald Trump's pick to replace the late Justice Ruth Bader Ginsburg, has a mixed record on immigration, but she has demonstrated a clear preference for interpreting laws based on their strict textual meaning. And when the text is unclear, she tends to rely on the federal government's own interpretation, legal experts say.

This textualist approach, perhaps inspired by her time clerking for the late Supreme Court Justice Antonin Scalia, could provide a key vote on an already conservative-majority court in support of the Trump administration's attempts to justify its immigration restrictions, which have targeted foreign citizens both in and outside of the U.S., by citing the federal immigration statute.

"In the immigration space, an expansive view of executive power can translate, frankly, into a blank check to the president about who can immigrate to the U.S.," said Bradley Jenkins, federal litigation attorney at the Catholic Legal Immigration Network Inc.

A tendency toward executive deference could spell losses for immigrants in a number of key cases regarding the federal government's authority to regulate immigration. Currently winding through the courts is litigation challenging the administration's attempt to end the DACA program and temporary immigration protections for individuals from countries in crisis as well as taking on the president's authority to divert funds toward a border wall.

Judge Barrett's preference to defer to the executive branch's authority to interpret immigration law for itself was most prominently on display in her 40-page dissent in support of the Trump administration's so-called public charge rule, which penalizes immigrants seeking green cards if they are found likely to need public assistance in the future.

In her June opinion disagreeing with her colleagues' decision that the rule was likely illegal, Judge Barrett said that she would have deferred to the government's expanded interpretation of "public charge" — which allows the U.S. Department of Homeland Security to deny green cards to more low-income immigrants — and allowed the policy to take effect.

Cook County, Illinois, which had claimed the immigration rule would discourage immigrants from using federal benefits to which they are entitled, had argued that DHS' expanded definition was unreasonable and contradicted decades of historical understanding of the term.

But Judge Barrett wrote that the term "public charge" in the federal immigration statute "is indeterminate enough to leave room for interpretation" and gives DHS "relatively wide discretion" to determine the factors that make an individual likely to become a public charge.

"Judge Barrett's long dissent shows her emphasis on relying on a statute's text and her deference to an agency's interpretation of the law, even if that interpretation changes," said Stephen Yale-Loehr, an immigration law professor at Cornell University Law School.

The opinion also shows her "flair for writing," he added.

"She is logical and easy to understand, even if you disagree with her outcome," Yale-Loehr said.

And while Judge Barrett has not penned many immigration decisions during her time on the Seventh Circuit, her decision to write separately on the public charge rule also offers a window into her legal philosophy in the immigration space.

"That's notable," said Jennifer Lee Koh, an immigration law professor at the University of California, Irvine, School of Law, "because she went to great efforts to articulate a certain view of the rule that's favorable to the government."

And while her dissent may not have been celebrated by immigration advocates, her lengthy opinion showed a thorough grasp of immigration law, said Evangeline Abriel, a professor at the Santa Clara University School of Law.

"That shows that she's really thinking, and that she understands a very complex area of law," Abriel said.

Judge Barrett's preference for strict textualism and agency deference can also be seen in her opinion in favor of preserving consular nonreviewability, or the doctrine preventing individuals from appealing visa denials issued by consular officers.

A Seventh Circuit panel had refused to revive a U.S. citizen's request to sponsor his Yemeni wife for a visa after a consular officer found she was ineligible because she had smuggled her children into the U.S. The couple had disputed the consular officer's finding, stating that their two children were actually dead.

Some judges on the appeals court had urged the full court to reconsider the case, arguing that the consular officer needed to have better explained the denial. But in a separate opinion, Judge Barrett disagreed, insisting that a consular officer need only cite to the law behind the denial.

"The dissenters here claim that a visa denial is not bona fide unless the consular officer not only provides a statutory citation and the underlying facts but also explains his reasoning," Judge Barrett wrote. "That standard may be desirable but imposing it would be inconsistent with Supreme Court precedent."

Kevin Johnson, dean of the University of California, Davis, School of Law, said that Judge Barrett's refusal to expand courts' authority to review consular decisions reflects a "traditional and longstanding, but slowly eroding, doctrine."

"I read those decisions as strongly suggesting that she would not want to disrupt the executive branch's decisions in these matters," he said, referring to her rulings on consular nonreviewability and the public charge rule.

However, a textualist approach is not necessarily always an anti-immigrant one, and with less than three years on the Seventh Circuit to draw upon, legal analysts say that it can be difficult to predict where Judge Barrett may land on a number of immigration issues.

They noted that Justice Neil Gorsuch, a Trump appointee and another proponent of textualism, surprised conservatives when he sided with the liberal wing of the high court in 2018 to find that the "crime of violence" label in immigration law, used to deport people with criminal convictions, was too vague.

"This is the problem, in my mind, about textualists: It's very hard to say how they are going to come down on something," said Muzaffar A. Chishti, head of the Migration Policy Institute's New York office.

Judge Barrett used a textualist approach to rule against the Trump administration earlier this year when she struck down an immigration decision written by former Attorney General Jeff Sessions that limited immigration judges' ability to table, or administratively close, lower priority cases.

Writing for the majority in favor of a Mexican citizen who had been ordered deported while waiting for his visa request to be processed, Judge Barrett found that while Sessions' decision, known as Matter of Castro-Tum, "tries to draw reinforcement from the general policy of expeditiousness underlying immigration law, that policy doesn't justify departure from the plain text of the rule."

"That is not deferring to the executive, obviously, and suggests that she, like many of the justices on the court, are going to look to the language of the statute and regulation and interpret those faithfully. If it sides with the executive, she'll side with the executive. If it doesn't, she won't," Johnson said.

And while she may be more likely to side with the government on matters involving discretion over immigration, Judge Barrett's ruling on administrative closures indicates that she doesn't believe that the executive has completely unfettered powers in this space.

Chief Justice John Roberts has twice sided with his liberal colleagues when thwarting the Trump administration's attempts to end DACA and to add a citizenship question to the census because he found that the administration had not done so properly.

"Both the census case and the DACA case have shown a good insight that even if someone believes strongly in the executive authority in immigration, they may be troubled by the way that it's used. And you could see some strict textualist may be troubled by the way it's used," Chishti said.

Of the five immigration appeals brought by individuals facing deportation where Judge Barrett wrote for the majority, she denied three and granted two, reflecting an "evenhanded" approach, according to Abriel, who reviewed all of her immigration decisions.

Chishti also stressed that there is no evidence that Judge Barrett harbors anti-immigrant sentiment.

"There's absolutely nothing in her record which shows that there is any philosophical bent of mind that suggests anti-immigrant animus," he said.

And while Judge Barrett's record on immigration is limited, the stakes for immigrants are high. Both the Second and Seventh circuits have found that the public charge rule is likely illegal, paving the way for potential Supreme Court review. It's unclear if Judge Barrett, if confirmed, would recuse herself, given her earlier participation in the case.

The Ninth Circuit also recently held that the Trump administration can end protections for hundreds of thousands of foreign citizens who have lived in the U.S. for years under a program called Temporary Protected Status, an issue that is also likely to go to the Supreme Court.

A number of challenges to the Trump administration's asylum policies, including its policy of requiring asylum-seekers to wait out their U.S. immigration court proceedings in Mexico, could also make their way up to the justices.

"In the event that the Trump administration continues to set immigration policy … then that could be deeply troubling to the extent that she's willing to defer to agency interpretations," Koh said.

But even more troubling, Koh said, is Judge Barrett's apparent willingness to pursue this nomination so close to the presidential election, given Republicans' refusal in 2016 to confirm former President Barack Obama's high court nominee during an election year.

"I think I'm not alone in being concerned about the highly unusual political context in which this nomination is going forward," Koh said. "I guess I'm really questioning the judgment of any person who will be willing to accept a nomination given the environment."

--Editing by Jill Coffey and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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