A trip abroad, as I took recently for a speaking gig, often allows intellectual curiosity to gallivant more freely. It also provides opportunities to question accepted truths or cause germinating notions to blossom into convincing arguments, especially if serendipity or divine providence creates chance meetings with strangers. These thoughts crystallized after my return as I read Peggy Noonan’s op-ed piece in the April 23-24 Wall St. Journal, “What the World Sees in America.” She wrote:
[There] are . . . reasons for a new skepticism about America’s just role and responsibilities in the world in 2011. One has to do with the burly, muscular, traditional but at this point not fully thought-through American assumption that our culture is not only superior to most, but is certainly better in all ways than the cultures of those we seek to conquer. We have always felt pride in our nation’s ways, and pride isn’t all bad. But conceit is, and it’s possible we’ve grown as conceited as we’ve become culturally careless.
Which brings me to the point of this post. I need to debunk a curious and obscure creation of the federal courts, a particularly perverse form of “American Exceptionalism” (itself, a distasteful term which I must flavor with a boulder’s worth of granulated salt to get it down the gullet). The construct of the federal courts that I’m about to describe rests on tottering and false assumptions. These are (a) that administrative agencies, in particular, federal immigration agencies, possess superior expertise in interpreting the enacted laws which they administer, and (b) that therefore courts should abdicate responsibility for interpreting these laws and defer to the agencies’ presumably learned prowess in the art of statutory interpretation.
(Before challenging the courts’ concoction, I note my displeasure with the conceit – pun intended – of American Exceptionalism, most often a proxy for undeserved arrogance or fact-free opinion. Yes, in times past we have shown ourselves to be a great nation, as, for example, the Marshall Plan, created by our forbears, that saved Europe after World War II – a laurel on which today’s younger Americans undeservedly rest – or the Civil Rights Movement, which planted seeds that allowed a biracial American to become the nation’s president. Also a feature more of the past than the present is America’s tradition as a welcoming nation of immigrants, a form of Exceptionalism that I unhesitatingly extol.)
The high- (or, in my view, low-) water mark for judicial deference to presumed administrative-agency expertise is the Supreme Court’s Brand X decision, an aptly titled case for TV viewers of 1960s-era commercials who know that the name refers to a decidedly inferior product. Brand X held that the federal courts must yield to an administrative agency’s legal interpretation if the words of a statute are ambiguous. As Carl Sandburg taught, the words of statutes, when read by trained legal and judicial minds, virtually always can be interpreted as ambiguous. Thus, the courts are under orders to let the agencies call the shots.
So, do immigration agents in the Departments of State, Labor, Homeland Security and Justice really possess special expertise, greater than the courts, in divining the elusive intent of Congress whenever our federal legislature has passed immigration laws? My 30-plus years as an immigration lawyer compel me to shout a “NO” answer.
Here’s why. America’s immigration agencies are silos, each spewing forth legal assertions from their prescribed parcels of the expansive turf that is the Immigration and Nationality Act (INA). The Labor Department (DOL) may claim arguable expertise with immigration-related laws protecting the wages and working conditions of American and foreign workers, but it (like the other agencies, as I’ve noted in a prior post) has an axe to grind, rather than a mandate of blind justice in administering immigration laws. DOL deserves no presumption of expertise about the multiple forms of statutory eligibility needed to procure immigration benefits (the domain of U.S. Citizenship and Immigration Services [USCIS] within the Department of Homeland Security [DHS]) or to obtain immigrant or nonimmigrant visas (the province of the State Department operating under a Memorandum of Understanding [MOU] with DHS). The converse is also true, as USCIS readily admits.
Similarly, two DHS police units – Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) – are charged, respectively, with removing or excluding foreigners who have violated or are likely to break the immigration laws. Strangely, however, these federal cops play a comparatively small role in declaring which activities fall within or outside the statutorily complex principles of lawful “immigration status” and valid employment authorization. These instead are functions that USCIS (more or less) discharges concurrently with a variety of Justice Department units (the Executive Office of Immigration Review, comprised of the Immigration Courts and the Board of Immigration Appeals, along with the Office of the Chief Administrative Hearing Officer and the Office of Special Counsel for Unfair Immigration-Related Employment Practices [OSC]).
As post-9/11 “connect-the-dots” studies and Congressional hearings have taught us, and as most immigration lawyers already knew, the several federal immigration bureaucracies tend to protect their turf, and often distrust and positively dislike and disrespect their counterparts in sister agencies. Worse yet, they typically prefer a cloistered existence rather than one that reaches out across the Executive Branch in patriotic efforts to harmonize and declare in unison a reliable set of interpretations of America’s immigration laws and policies.
Lately, seasoned immigration observers have noticed a kind of Hatfields-and-McCoys détente in which interagency MOUs proliferate (as illustrated by the DOL-DHS MOU, the USCIS-OSC MOU, the DHS-State Department MOU and the impossible-to-exit and falsely promoted ICE Secure Communities MOU). Close readings of these MOUs reflect a desire by the various agencies to seek reciprocal non-molestation pacts and avoid tripping over one another, or to gull state and local authorities, rather than to provide harmony and transparency in the interpretation of the immigration laws.
These types of governmental MOUs were never mentioned in my high school civics class, or in any course I took on administrative law. They are an affront to Congressional power and a testament to legislative lassitude over immigration. Such bureaucratic faux-contracts, when coupled with the fawning deference ordered by the Supremes in Brand X, resemble more a French farce about institutional asylees who assume governmental roles a la the 1966 film King of Hearts, than a just, reliable and orderly exercise of federal power in the immigration sphere. As Peggy Noonan concluded in her op-ed:
The whole world is . . . judging what it sees [of America], and likely, in some serious ways, finding us wanting.
And being human, they may be judging us with a small, extra edge of harshness for judging them and looking down on them.
We have work to do at home, on our culture and in our country.