Volume 37
Issue
1
Date
2022

Article II Judges: Section 238's Violation of Separation of Powers

by Connor Bartlett McDermott

Expedited removal proceedings are truncated immigration decisions presided over by executive agents who are also imbued with the power to decide when such proceedings can be utilized. One of the statutes that permits this adjudicative structure is INA § 238. This Article examines the history of §238 expedited removals, tracing their origins back to the Anti-Terrorism and Effective Death Penalty Act of 1996 and the reduction of protections for migrants convicted of an aggravated felony codified in that law. Subsequently, the step-by-step process of administrative removals is examined in detail in preparation for an analysis of why, on a structural level, §238 violates Article III’s separation of powers guarantees. Due to their adjudicative power, the executive officials entrusted with expedited removals  should be conceived of as an Article I-like Court. In which case, Congress  has impermissibly delegated Article III power to the executive branch. This Article concludes that, as far as § 238 is concerned, Congress has over stepped its authority to delegate Article III power to the Executive, and it is time for practitioners to consider a legislative courts challenge to administrative removals. 

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