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Detained Immigration Courts

This Article traces the modern development and institutional design of detained immigration courts—that is, the courts that tie detention to deportation. Since the early 1980s, judges in detained immigration courts have presided over more than 3.6 million court cases of persons held in immigration custody, almost all men from Latin America, most of whom are charged with only civil violations of the immigration law. Primary sources indicate that detained immigration courts are concentrated outside major urban areas, most commonly in the South, and often housed in structures not traditionally associated with courts, including inside prisons, jails, detention processing centers, makeshift tents, shipping containers, and border patrol stations. Other defining features of these detained courts include case completion goals prioritizing speed, minimal representation by counsel, heavy reliance on video adjudication, constrained public access, and arrest and venue rules that give the government unfettered control over the court that hears the case. Accompanying these developments, judges working inside detained courts have become increasingly separated from the rest of the immigration judge corps and, when compared to their counterparts in the nondetained courts, are more likely to be male, to have served in the military, and to have worked as prosecutors.

This Article argues that the largely unregulated design elements of detained immigration courts threaten due process and fundamental fairness by fostering a segregated court system that assigns systematic disadvantage to those who are detained during their case. Recognizing the structure and function of the detained immigration court system has a number of important implications for organizing efforts to reduce reliance on detention, policy proposals for restructuring the immigration courts, and future research on judicial decision-making.

Introduction

Immigration judges have long played an important role as arbiters of individual deportation cases. Although immigration judges are entrusted with ensuring fairness and due process in agency adjudication, their caseloads, priorities, and funding have historically been inexorably tied to the government’s deportation agenda. This fundamental tension between guarding the integrity of the judicial process and advancing the executive’s enforcement priorities has consistently plagued the immigration courts. Nowhere is this tension more apparent than inside detention, where presidential administrations of both parties have focused their deportation efforts.

Over the past four decades, the number of people experiencing detention during their immigration court process has ballooned. In 1983, when the Executive Office for Immigration Review (“EOIR”) was established as an agency to house the immigration courts within the Department of Justice (“DOJ”), only 678 people began their deportation cases in detention; by 2019, that number had reached an all-time high of 198,490 persons.1 1.See infra Figure 3.Show More Across Republican and Democratic administrations, a range of immigration enforcement policies have solidified the tie between detention and adjudication.2 2.See, e.g., Exec. Order No. 13,767, 82 Fed. Reg. 8793, 8795 (Jan. 25, 2017) (ordering detention for “[noncitizens] apprehended for violations of immigration law pending the outcome of their removal proceedings”); Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigr. & Customs Enf’t, R. Gil Kerlikowske, Comm’r, U.S. Customs & Border Prot., Leon Rodriguez, Dir., U.S. Citizenship & Immigr. Servs., Alan D. Bersin, Acting Assistant Sec’y for Pol’y, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014) (directing that immigration detention bed space be utilized to pursue the agency’s removal priorities).Show More Detention has also garnered approval of the U.S. Supreme Court, which has declined thus far to limit the government’s power to detain noncitizens in the name of removal.3 3.See, e.g., Johnson v. Arteaga-Martinez, 142 S. Ct. 1827, 1833 (2022) (concluding that § 241 of the Immigration and Nationality Act (“INA”) does not allow for a bond hearing for those seeking withholding of removal in immigration court after a prior removal order); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1970 (2020) (noting that “[m]andatory detention” under INA § 235(b)(1)(B) applies during a credible fear review proceeding before an immigration judge); Nielsen v. Preap, 139 S. Ct. 954, 970–71 (2019) (holding that INA § 236(c) mandates arrest and detention of any noncitizen with certain predicate offenses, including if the arrest occurs years after release from criminal custody); Jennings v. Rodriguez, 138 S. Ct. 830, 846–47 (2018) (finding no implicit six-month limit to pre-removal detention under the INA).Show More Yet we know little about the trial-level courts that decide the cases of individuals who are detained, and how these courts may differ from their sister courts that hear the cases of individuals who are not detained.4 4.One of the reasons for this blind spot, as Stephen Yeazell has noted, is that scholars tend to focus their research on appellate courts and the Supreme Court, rather than trial courts. Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 130 (2014). Our Article thus contributes to the small but growing body of scholarship that investigates these lower-level courts. See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 965 (2021) (documenting how the lowest tier of criminal courts—municipal courts—have been overlooked in criminal law scholarship); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1706 (2022) (revealing how the civil dockets of state trial courts have become dominated by massive, repeat filings of large corporations); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1243 (2022) (examining consumer debt collection actions in civil courts as a case study to show how court practices facilitate racial capitalism); Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359, 360 (2022) (tracing how the structure of eviction courts undermines tenants’ rights); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1471 (2022) (arguing that state civil courts function as a type of emergency room for the social needs of litigants); Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1478 (2019) (studying lower-level district court practices for reviewing in forma pauperis).Show More

This Article is the first to trace the emergence, growth, and significance of what we call detained immigration courts—that is, U.S. immigration courts dedicated to hearing the removal cases of individuals who are in custody.5 5.The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, replaced the former exclusion and deportation proceedings with a unified “removal proceeding.” Although removal is by far the most common case type today, judges in detention preside over other case types as well, such as credible fear review proceedings. See infra Section III.A & Appendix, Sections A, E.Show More Tracing the history of immigration adjudication, we show how, over time, detained courts and the judges who work inside them have been severed organizationally from the rest of the immigration court system—the nondetained immigration courts that hear the immigration cases of noncitizens who are not imprisoned.6 6.Shoba Sivaprasad Wadhia and Christopher J. Walker have recently explained that the modern immigration court “has two dockets: one for respondents outside of detention and a second for those detained.” Shoba Sivaprasad Wadhia & Christopher J. Walker, The Case Against Chevron Deference in Immigration Adjudication, 70 Duke L.J. 1197, 1207 (2021). We show how these splintered dockets have actually fostered two separate immigration court systems, each with its own set of judges, courtrooms, and procedures.Show More Relying on a range of primary sources—including public records,7 7.We obtained internal memoranda and other documents regarding the operation of the immigration courts through the Freedom of Information Act. Additionally, as described in the Appendix, we analyzed EOIR’s administrative database of court records made available on the agency’s web page.Show More legislative history, agency reports, and court observations8 8.Observations included immigration courts and associated detention facilities in Adelanto, California; Chicago, Illinois; Elizabeth, New Jersey; Houston, Texas; Los Angeles, California; Newark, New Jersey; Pearsall, Texas; and San Antonio, Texas.Show More—we identify defining features of detained immigration courts that distinguish them from nondetained courts, including courtrooms built inside carceral facilities, lightning-fast case completion goals, court locations concentrated in small and rural cities and in the South, and loosening of jurisdictional boundaries in assigning judges to cases. Since 1983, when the EOIR was established, detained courts have operated as sites of mass adjudication with sky-high deportation rates and little representation by counsel: 93% of detained individuals were deported, and only 16% found lawyers.9 9.See infra notes 187, 292 and accompanying text.Show More

Persons who are detained during the adjudication of their immigration court case are held in a growing complex of immigration detention facilities, county jails, and state and federal prisons, many of which are owned and/or operated by private, for-profit contractors.10 10.For an analysis of the significance of privatized immigration enforcement, including in the detention context, see Jennifer M. Chacón, Privatized Immigration Enforcement, 52 Harv. C.R.-C.L. L. Rev. 1, 2 (2017).Show More On the border, migrants are sometimes incarcerated in temporary Border Patrol facilities, or—through a controversial Trump-era court program known as the Migrant Protection Protocols (“MPP”)—taken in the custody of Border Patrol officers to makeshift tent courts where immigration judges appear from distant locations on a video screen.11 11.The MPP has been embroiled in litigation since the Biden Administration first attempted to terminate the program in January 2021. See infra note 170. Meanwhile, time spent in inhospitable conditions in Border Patrol facilities has increased under the Biden Administration’s expedited asylum policy. Priscilla Alvarez, Adult Migrants Are Held in Border Facilities Too Long Amid Biden Administration Policy Changes, Sources Say, CNN (July 18, 2023, 6:00 AM), https://www.cnn.com/2023/07/18/politics/migrants-border-facil‌ities-biden-policies/index.html [https://perma.cc/L39U-9RTE].Show More Unaccompanied children, who we find were also sometimes detained during their entire court proceeding, have been held in shelters, hotels, and even juvenile jails designed for youth who have been adjudicated as delinquent.12 12.Amnesty Int’l, United States of America, “Why Am I Here?”: Children in Immigration Detention 17–21 (June 2003), https://www.amnestyusa.org/wp-content/uploads/2017/09/why‌_am_i_here.pdf [https://perma.cc/4P9X-UBZP].Show More

Although immigration proceedings are legally characterized as “civil,”13 13.Immigr. & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry . . . .”).Show More the parallels between pretrial detention in immigration court and criminal court are striking.14 14.See generally Cecilia Menjívar, Andrea Gómez Cervantes & Daniel Alvord, The Expansion of “Crimmigration,” Mass Detention, and Deportation, 12 Socio. Compass 1, 2 (2018) (examining the global expansion of “crimmigration” and how criminalization practices in immigration have expanded in the United States in particular).Show More As those familiar with the criminal legal system know well, the use of pretrial detention can turn the court system into one that pressures individuals to waive their rights and plead guilty.15 15.Malcolm M. Feeley, The Process is the Punishment: Handling Cases in Lower Criminal Court 33–34 (1979) (demonstrating that the pretrial process informally punishes defendants and pressures guilty pleas); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1317 (2012) (showing how the misdemeanor pretrial system results in “vulnerable, underrepresented defendants” pleading guilty, “even in the absence of evidence”).Show More Study after study has found that persons who are detained during the criminal process have worse outcomes than those who are released from custody.16 16.See, e.g., Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 717 (2017) (finding that “defendants who are detained on a misdemeanor charge are much more likely than similarly situated releasees to plead guilty and serve jail time”); Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 511 (2018) (demonstrating that pretrial detention increases the likelihood of conviction, the length of sentence, and court fees owed).Show More Research has also documented how pretrial detention not only fails to reduce future crime, but also comes at a high cost to taxpayers and poses broader societal harms, including reduced labor market participation and detrimental impacts on families separated from their loved ones.17 17.See, e.g., Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399, 1416–29 (2017) (summarizing research on the costs of pretrial detention, including societal and economic impacts); Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201, 201 (2018) (finding that pretrial detention increases the probability of conviction and lowers labor market participation).Show MoreMoreover, the pains of detention are felt disproportionately by communities of color and the poor, who are unable to afford to post bond and are more likely to be labeled a “danger” or “flight risk” by a judge.18 18.See, e.g., Marvin D. Free, Jr., Race and Presentencing Decisions in the United States: A Summary and Critique of the Research, 27 Crim. Just. Rev. 203, 206–07 (2002) (concluding that disparities in bail amounts are likely the result of racial discrimination); Ellen A. Donnelly & John M. MacDonald, The Downstream Effects of Bail and Pretrial Detention on Racial Disparities in Incarceration, 108 J. Crim. L. & Criminology 775, 775 (2019) (analyzing how pretrial detention contributes to the Black-white disparity in rate of conviction and sentence length).Show More

For the most part, scholars have explored the topics of immigrant detention and immigration courts separately, without focusing on the connection between the two. On the detention side, the emerging multi-disciplinary field of detention studies has exposed the deplorable conditions in immigration prisons, such as the lack of programming, inferior health care, and abuse by guards.19 19.See, e.g., Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 43 (2010) (outlining the ways that immigrant detention has transformed into a quasi-punitive system); Jamie Longazel, Jake Berman & Benjamin Fleury-Steiner, The Pains of Immigrant Imprisonment, 10 Soc. Compass 989, 990 (2016) (discussing the pain detention inflicts on migrants and their communities); Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087, 1117–19 (1995) (detailing inadequate conditions at INS detention facilities); Valeria Gomez & Marcy L. Karin, Menstrual Justice in Immigration Detention, 41 Colum. J. Gender & L. 123 (2021) (highlighting the inadequate access to menstrual products inside detention).Show More Researchers have also highlighted the ways in which U.S. detention policies are grounded in racialized presumptions about community safety and criminality.20 20.See, e.g., David Manuel Hernández, Pursuant to Deportation: Latinos and Immigrant Detention, 6 Latino Stud. 35, 49–53 (2008); Tamara K. Nopper, Why Black Immigrants Matter: Refocusing the Discussion on Racism and Immigration Enforcement, in Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today 204, 209–13 (David C. Brotherton & Philip Kretsedemas eds., 2008). Show MoreGeographers have probed the powerful role of private companies, states, and localities in detention’s expansion.21 21.See, e.g., Lauren L. Martin & Matthew L. Mitchelson, Geographies of Detention and Imprisonment: Interrogating Spatial Practices of Confinement, Discipline, Law, and State Power, 3 Geo. Compass 459, 472 (2009).Show MoreLegal scholars have published widely on the constitutionality of mandatory detention provisions that have thus far survived legal challenge before the U.S. Supreme Court.22 22.See, e.g., Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 603 (2010); Faiza W. Sayed, Challenging Detention: Why Immigrant Detainees Receive Less Process than “Enemy Combatants” and Why They Deserve More, 111 Colum. L. Rev. 1833, 1835 (2011); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Mich. J.L. Reform 879, 881 (2015).Show More A common theme running through these diverse literatures is that migrant detention, despite its “civil” status, functions as a form of punishment and is experienced by migrants and their communities as cruel and inhumane.23 23.See, e.g., Kristina Shull, Detention Empire: Reagan’s War on Immigrants and the Seeds of Resistance 3 (2022) (“In practice, detention looks and feels like prison . . . .”); Mark Dow, Designed to Punish: Immigrant Detention and Deportation, 74 Soc. Res. 533, 536 (2007) (“I have seen that immigration detention punishes . . . .”); Jessica Ordaz, Migrant Detention Archives: Histories of Pain and Solidarity, 102 S. Cal. Q. 250, 259 (2020) (“[M]igrants describe detention as a place of punishment and pain.”); César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1360 (2014) (“The legislative origins of today’s immigration detention system show a desire to punish noncitizens . . . .”).Show More

A separate body of literature has studied the U.S. immigration courts, yet for the most part has not addressed detained courts as a distinct area of inquiry. For example, without acknowledging detained courts, scholars have critiqued the overburdening of immigration judges and the court backlog,24 24.See, e.g., Stuart L. Lustig, Kevin Delucchi, Lakshika Tennakoon, Brent Kaul, Dana Leigh Marks & Denise Slavin, Burnout and Stress Among United States Immigration Judges, 13 Bender’s Immigr. Bull. 22, 22 (2008) (concluding that immigration judges suffered from secondary traumatic stress and high amounts of burnout); Lindsay M. Harris, The One-Year Bar to Asylum in the Age of the Immigration Court Backlog, 2016 Wis. L. Rev. 1185, 1205 (“In recent years, increasing caseloads have begun to overwhelm courts and judges.”); Donald Kerwin & Evin Millet, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, 11 J. on Migration & Hum. Sec. 194, 194 (2023) (attributing the immigration court backlog “to systemic failures in the broader immigration system that negatively affect the immigration courts,” including visa backlogs and Congress’s failure to reform the immigration law).Show More the lack of decisional independence among immigration judges,25 25.See, e.g., Stephen H. Legomsky, Deportation and the War on Independence, 91 Cornell L. Rev. 369, 369–85 (2006) (identifying how independence among immigration judges has been “eviscerat[ed]”); Mary Holper, Taking Liberty Decisions Away from “Imitation” Judges, 80 Md. L. Rev. 1076, 1087–88 (2021) (outlining how the DOJ “reined the judges in” to align with the Attorney General’s priorities).Show More the politicization of immigration courts,26 26.See, e.g., Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction 5–7 (2021) (arguing that the basic structure of the U.S. immigration courts is flawed); Catherine Y. Kim, The President’s Immigration Courts, 68 Emory L.J. 1, 22–34 (2018) (demonstrating how the Trump Administration politicized immigration adjudication); Fatma E. Marouf, Executive Overreaching in Immigration Adjudication, 93 Tul. L. Rev. 707, 707 (2019) (outlining how the executive can interfere with the process of adjudicating immigration cases); Amit Jain, Bureaucrats in Robes: Immigration “Judges” and the Trappings of “Courts,” 33 Geo. Immigr. L.J. 261, 265 (2019) (characterizing the immigration courts as a hierarchical bureaucracy that advances executive branch policy); Jayanth K. Krishnan, Judicial Power—Immigration-Style, 73 Admin. L. Rev. 317, 323 (2021) (“Ideology and politics are an inescapable part of the atmosphere in which [immigration judges] hear cases and issue their decisions.”).Show More and the insufficiency of constitutional and procedural protections in removal proceedings.27 27.See, e.g., Stella Burch Elias, “Good Reason to Believe”: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109, 1115; Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1563 (2010); Tania N. Valdez, Pleading the Fifth in Immigration Court: A Regulatory Proposal, 98 Wash. U. L. Rev. 1343, 1343–44 (2021) (highlighting the lack of procedural protections in immigration court).Show More Empirical scholarship on immigration courts has often drawn conclusions by examining judicial decision-making only in cases that do not involve detention,28 28.See, e.g., Dylan Farrell-Bryan, Relief or Removal: State Logics of Deservingness and Masculinity for Immigrant Men in Removal Proceedings, 56 L. & Soc’y Rev. 167, 173–74 (2022) (studying a Northeast immigration court that “primarily handles the cases of individuals who are not detained”); David Hausman & Jayashri Srikantiah, Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court, 84 Fordham L. Rev. 1823, 1826 (2016) (analyzing the nondetained cases of children and families); Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 327 (2007) (taking steps to exclude detained cases from analysis).Show More or treated detained and nondetained cases as coexisting in a unitary court system.29 29.See, e.g., Nicholas R. Bednar, The Public Administration of Justice, 44 Cardozo L. Rev. 2139, 2162–63 (2023); Daniel E. Chand, William D. Schreckhise & Marianne L. Bowers, The Dynamics of State and Local Contexts and Immigration Asylum Hearing Decisions, 27 J. Pub. Admin. Rsch. & Theory 182, 191–93, tbls.3, 4 & 5 (2017); Catherine Y. Kim & Amy Semet, An Empirical Study of Political Control Over Immigration Adjudication, 108 Geo. L.J. 579, 588–89 (2020); Emily Ryo & Ian Peacock, Represented but Unequal: The Contingent Effect of Legal Representation in Removal Proceedings, 55 L. & Soc’y Rev. 634, 635 (2021); Banks Miller, Linda Camp Keith & Jennifer S. Holmes, Immigration Judges and U.S. Asylum Policy 10 (2015).Show MoreTo the extent scholars have turned their lens on detained courts, such work has focused on one slice of adjudication, such as bond hearings30 30.See, e.g., Emily Ryo, Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings, 52 L. & Soc’y Rev. 503, 503 (2018); Denise L. Gilman, To Loose the Bonds: The Deceptive Promise of Freedom from Pretrial Immigration Detention, 92 Ind. L.J. 157, 157 (2016).Show Moreand representation by counsel,31 31.See, e.g., Steering Comm. of the N.Y. Immigrant Representation Study Rep., Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings, 33 Cardozo L. Rev. 357, 361 (2011); Aditi Shah, Constitutional and Procedural Pathways to Freedom from Immigration Detention: Increasing Access to Legal Representation, 35 Geo. Immigr. L.J. 181, 181 (2020); Talia Peleg & Ruben Loyo, Transforming Deportation Defense: Lessons Learned from the Nation’s First Public Defender Program for Detained Immigrants, 22 CUNY L. Rev. 193, 193 (2018).Show More or presented a case study of a single detained immigration court.32 32.See, e.g., Asad L. Asad, Deportation Decisions: Judicial Decision-Making in an American Immigration Court, 63 Am. Behav. Scientist 1221, 1241–44 (2019) (drawing on observations of hearings in the Dallas immigration court); Robert E. Koulish, Systemic Deterrence Against Prospective Asylum Seekers: A Study of the South Texas Immigration District, 19 N.Y.U. Rev. L. & Soc. Change 529, 553 (1992) (observing the Harlingen immigration court); Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 553 (2009) (studying the Varick Street court in New York); Christopher Levesque et al., Crimmigrating Narratives: Examining Third-Party Observations of US Detained Immigration Court, 48 L. & Soc. Inquiry 407, 407 (2023) (analyzing data from a court observation project conducted in the Fort Snelling immigration court). All of these detained courts are included in Figure 1, infra.Show More

Our project seeks to meld together these two important areas of research—on immigrant detention and immigration courts—to place a sustained focus on the understudied realm of the detained immigration court system. To borrow Juliet Stumpf’s words, we seek to understand how “[d]etention [d]rives [d]eportation,” or perhaps more precisely in our case, the role that detained immigration courts have played in the institutional development of sites and practices that fuel deportation in ways that threaten due process and fundamental fairness.33 33.Juliet P. Stumpf, Civil Detention and Other Oxymorons, 40 Queen’s L.J. 55, 96 (2014).Show More Nancy Hiemstra and Deirdre Conlon have called detention “a cornerstone of border enforcement.”34 34. Nancy Hiemstra & Deirdre Conlon, Beyond Privatization: Bureaucratization and the Spatialities of Immigration Detention Expansion, 5 Territory, Pol., Governance 252, 254 (2017).Show MoreWe show how the detained immigration courts serve as another foundational component, one in need of further interrogation.

This Article proceeds in four Parts. Part I provides the historical background on how detention came to be merged with the adjudication of deportation and exclusion cases. Part II turns to the modern era of detained adjudication by the EOIR and reveals how the agency has been an integral, yet largely unnoticed, partner in the detention empire, collaborating in the placement of court spaces in remote carceral facilities and the prioritization of segregated urban courtrooms dedicated exclusively to detained cases. Part III provides a geographic and demographic sketch of the modern detained court system: how big is it, where does it operate, and who is swept up in these courts? Part IV digs deeper, identifying the institutional design elements embedded in detained immigration courts that distinguish them from their nondetained counterparts—including their remote geography, adjudication speed, heightened barriers to access by counsel and the public, specialization of the judiciary, and flexible venue rules. We argue that each of these features of the detained courts has the potential to change the decisional environment of incarcerated litigants in ways that may impose systematic structural disadvantage over and above the fact of their detention.

Existing discourse about immigration adjudication has labored under the understanding that the U.S. immigration court is one unified court system. Through study of the evolution and modern structure of immigration adjudication, we seek to convince readers that there are actually two immigration courts in the United States today—one for persons who are detained and the other for persons who are not detained—and that this segregation matters. As we develop in the Conclusion, recognizing that there is a separate immigration court system deeply intertwined with detention informs current conversations about how to restructure the court system and reduce reliance on detention. Additionally, the spotlight that this Article places on the detained immigration courts should illuminate future empirical research on judicial decision-making in immigration.

  1.  See infra Figure 3. ↑
  2.  See, e.g., Exec. Order No. 13,767, 82 Fed. Reg. 8793, 8795 (Jan. 25, 2017) (ordering detention for “[noncitizens] apprehended for violations of immigration law pending the outcome of their removal proceedings”); Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S. Immigr. & Customs Enf’t, R. Gil Kerlikowske, Comm’r, U.S. Customs & Border Prot., Leon Rodriguez, Dir., U.S. Citizenship & Immigr. Servs., Alan D. Bersin, Acting Assistant Sec’y for Pol’y, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014) (directing that immigration detention bed space be utilized to pursue the agency’s removal priorities). ↑
  3.  See, e.g., Johnson v. Arteaga-Martinez, 142 S. Ct. 1827, 1833 (2022) (concluding that § 241 of the Immigration and Nationality Act (“INA”) does not allow for a bond hearing for those seeking withholding of removal in immigration court after a prior removal order); Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1970 (2020) (noting that “[m]andatory detention” under INA § 235(b)(1)(B) applies during a credible fear review proceeding before an immigration judge); Nielsen v. Preap, 139 S. Ct. 954, 970–71 (2019) (holding that INA § 236(c) mandates arrest and detention of any noncitizen with certain predicate offenses, including if the arrest occurs years after release from criminal custody); Jennings v. Rodriguez, 138 S. Ct. 830, 846–47 (2018) (finding no implicit six-month limit to pre-removal detention under the INA). ↑
  4.  One of the reasons for this blind spot, as Stephen Yeazell has noted, is that scholars tend to focus their research on appellate courts and the Supreme Court, rather than trial courts. Stephen C. Yeazell, Courting Ignorance: Why We Know So Little About Our Most Important Courts, 143 Daedalus 129, 130 (2014). Our Article thus contributes to the small but growing body of scholarship that investigates these lower-level courts. See, e.g., Alexandra Natapoff, Criminal Municipal Courts, 134 Harv. L. Rev. 964, 965 (2021) (documenting how the lowest tier of criminal courts—municipal courts—have been overlooked in criminal law scholarship); Daniel Wilf-Townsend, Assembly-Line Plaintiffs, 135 Harv. L. Rev. 1704, 1706 (2022) (revealing how the civil dockets of state trial courts have become dominated by massive, repeat filings of large corporations); Tonya L. Brito, Kathryn A. Sabbeth, Jessica K. Steinberg & Lauren Sudeall, Racial Capitalism in the Civil Courts, 122 Colum. L. Rev. 1243, 1243 (2022) (examining consumer debt collection actions in civil courts as a case study to show how court practices facilitate racial capitalism); Kathryn A. Sabbeth, Eviction Courts, 18 U. St. Thomas L.J. 359, 360 (2022) (tracing how the structure of eviction courts undermines tenants’ rights); Colleen F. Shanahan, Jessica K. Steinberg, Alyx Mark & Anna E. Carpenter, The Institutional Mismatch of State Civil Courts, 122 Colum. L. Rev. 1471, 1471 (2022) (arguing that state civil courts function as a type of emergency room for the social needs of litigants); Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J. 1478, 1478 (2019) (studying lower-level district court practices for reviewing in forma pauperis). ↑
  5.  The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009-546, replaced the former exclusion and deportation proceedings with a unified “removal proceeding.” Although removal is by far the most common case type today, judges in detention preside over other case types as well, such as credible fear review proceedings. See infra Section III.A & Appendix, Sections A, E. ↑
  6.  Shoba Sivaprasad Wadhia and Christopher J. Walker have recently explained that the modern immigration court “has two dockets: one for respondents outside of detention and a second for those detained.” Shoba Sivaprasad Wadhia & Christopher J. Walker, The Case Against Chevron Deference in Immigration Adjudication, 70 Duke L.J. 1197, 1207 (2021). We show how these splintered dockets have actually fostered two separate immigration court systems, each with its own set of judges, courtrooms, and procedures. ↑
  7.  We obtained internal memoranda and other documents regarding the operation of the immigration courts through the Freedom of Information Act. Additionally, as described in the Appendix, we analyzed EOIR’s administrative database of court records made available on the agency’s web page. ↑
  8.  Observations included immigration courts and associated detention facilities in Adelanto, California; Chicago, Illinois; Elizabeth, New Jersey; Houston, Texas; Los Angeles, California; Newark, New Jersey; Pearsall, Texas; and San Antonio, Texas. ↑
  9.  See infra notes 187, 292 and accompanying text. ↑
  10.  For an analysis of the significance of privatized immigration enforcement, including in the detention context, see Jennifer M. Chacón, Privatized Immigration Enforcement, 52 Harv. C.R.-C.L. L. Rev. 1, 2 (2017). ↑
  11.  The MPP has been embroiled in litigation since the Biden Administration first attempted to terminate the program in January 2021. See infra note 170. Meanwhile, time spent in inhospitable conditions in Border Patrol facilities has increased under the Biden Administration’s expedited asylum policy. Priscilla Alvarez, Adult Migrants Are Held in Border Facilities Too Long Amid Biden Administration Policy Changes, Sources Say, CNN (July 18, 2023, 6:00 AM), https://www.cnn.com/2023/07/18/politics/migrants-border-facil‌ities-biden-policies/index.html [https://perma.cc/L39U-9RTE]. ↑
  12.  Amnesty Int’l, United States of America, “Why Am I Here?”: Children in Immigration Detention 17–21 (June 2003), https://www.amnestyusa.org/wp-content/uploads/2017/09/why‌_am_i_here.pdf [https://perma.cc/4P9X-UBZP]. ↑
  13.  Immigr. & Naturalization Serv. v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry . . . .”). ↑
  14.  See generally Cecilia Menjívar, Andrea Gómez Cervantes & Daniel Alvord, The Expansion of “Crimmigration,” Mass Detention, and Deportation, 12 Socio. Compass 1, 2 (2018) (examining the global expansion of “crimmigration” and how criminalization practices in immigration have expanded in the United States in particular). ↑
  15.  Malcolm M. Feeley, The Process is the Punishment: Handling Cases in Lower Criminal Court 33–34 (1979) (demonstrating that the pretrial process informally punishes defendants and pressures guilty pleas); Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313, 1317 (2012) (showing how the misdemeanor pretrial system results in “vulnerable, underrepresented defendants” pleading guilty, “even in the absence of evidence”). ↑
  16.  See, e.g., Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 717 (2017) (finding that “defendants who are detained on a misdemeanor charge are much more likely than similarly situated releasees to plead guilty and serve jail time”); Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, 34 J.L. Econ. & Org. 511, 511 (2018) (demonstrating that pretrial detention increases the likelihood of conviction, the length of sentence, and court fees owed). ↑
  17.  See, e.g., Crystal S. Yang, Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399, 1416–29 (2017) (summarizing research on the costs of pretrial detention, including societal and economic impacts); Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201, 201 (2018) (finding that pretrial detention increases the probability of conviction and lowers labor market participation). ↑
  18.  See, e.g., Marvin D. Free, Jr., Race and Presentencing Decisions in the United States: A Summary and Critique of the Research, 27 Crim. Just. Rev. 203, 206–07 (2002) (concluding that disparities in bail amounts are likely the result of racial discrimination); Ellen A. Donnelly & John M. MacDonald, The Downstream Effects of Bail and Pretrial Detention on Racial Disparities in Incarceration, 108 J. Crim. L. & Criminology 775, 775 (2019) (analyzing how pretrial detention contributes to the Black-white disparity in rate of conviction and sentence length). ↑
  19.  See, e.g., Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42, 43 (2010) (outlining the ways that immigrant detention has transformed into a quasi-punitive system); Jamie Longazel, Jake Berman & Benjamin Fleury-Steiner, The Pains of Immigrant Imprisonment, 10 Soc. Compass 989, 990 (2016) (discussing the pain detention inflicts on migrants and their communities); Margaret H. Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087, 1117–19 (1995) (detailing inadequate conditions at INS detention facilities); Valeria Gomez & Marcy L. Karin, Menstrual Justice in Immigration Detention, 41 Colum. J. Gender & L. 123 (2021) (highlighting the inadequate access to menstrual products inside detention). ↑
  20.  See, e.g., David Manuel Hernández, Pursuant to Deportation: Latinos and Immigrant Detention, 6 Latino Stud. 35, 49–53 (2008); Tamara K. Nopper, Why Black Immigrants Matter: Refocusing the Discussion on Racism and Immigration Enforcement, in Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today 204, 209–13 (David C. Brotherton & Philip Kretsedemas eds., 2008). ↑
  21.  See, e.g., Lauren L. Martin & Matthew L. Mitchelson, Geographies of Detention and Imprisonment: Interrogating Spatial Practices of Confinement, Discipline, Law, and State Power, 3 Geo. Compass 459, 472 (2009). ↑
  22.  See, e.g., Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 Harv. C.R.-C.L. L. Rev. 601, 603 (2010); Faiza W. Sayed, Challenging Detention: Why Immigrant Detainees Receive Less Process than “Enemy Combatants” and Why They Deserve More, 111 Colum. L. Rev. 1833, 1835 (2011); Philip L. Torrey, Rethinking Immigration’s Mandatory Detention Regime: Politics, Profit, and the Meaning of “Custody,” 48 U. Mich. J.L. Reform 879, 881 (2015). ↑
  23.  See, e.g., Kristina Shull, Detention Empire: Reagan’s War on Immigrants and the Seeds of Resistance 3 (2022) (“In practice, detention looks and feels like prison . . . .”); Mark Dow, Designed to Punish: Immigrant Detention and Deportation, 74 Soc. Res. 533, 536 (2007) (“I have seen that immigration detention punishes . . . .”); Jessica Ordaz, Migrant Detention Archives: Histories of Pain and Solidarity, 102 S. Cal. Q. 250, 259 (2020) (“[M]igrants describe detention as a place of punishment and pain.”); César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346, 1360 (2014) (“The legislative origins of today’s immigration detention system show a desire to punish noncitizens . . . .”). ↑
  24.  See, e.g., Stuart L. Lustig, Kevin Delucchi, Lakshika Tennakoon, Brent Kaul, Dana Leigh Marks & Denise Slavin, Burnout and Stress Among United States Immigration Judges, 13 Bender’s Immigr. Bull. 22, 22 (2008) (concluding that immigration judges suffered from secondary traumatic stress and high amounts of burnout); Lindsay M. Harris, The One-Year Bar to Asylum in the Age of the Immigration Court Backlog, 2016 Wis. L. Rev. 1185, 1205 (“In recent years, increasing caseloads have begun to overwhelm courts and judges.”); Donald Kerwin & Evin Millet, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, 11 J. on Migration & Hum. Sec. 194, 194 (2023) (attributing the immigration court backlog “to systemic failures in the broader immigration system that negatively affect the immigration courts,” including visa backlogs and Congress’s failure to reform the immigration law). ↑
  25.  See, e.g., Stephen H. Legomsky, Deportation and the War on Independence, 91 Cornell L. Rev. 369, 369–85 (2006) (identifying how independence among immigration judges has been “eviscerat[ed]”); Mary Holper, Taking Liberty Decisions Away from “Imitation” Judges, 80 Md. L. Rev. 1076, 1087–88 (2021) (outlining how the DOJ “reined the judges in” to align with the Attorney General’s priorities). ↑
  26.  See, e.g., Alison Peck, The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction 5–7 (2021) (arguing that the basic structure of the U.S. immigration courts is flawed); Catherine Y. Kim, The President’s Immigration Courts, 68 Emory L.J. 1, 22–34 (2018) (demonstrating how the Trump Administration politicized immigration adjudication); Fatma E. Marouf, Executive Overreaching in Immigration Adjudication, 93 Tul. L. Rev. 707, 707 (2019) (outlining how the executive can interfere with the process of adjudicating immigration cases); Amit Jain, Bureaucrats in Robes: Immigration “Judges” and the Trappings of “Courts,” 33 Geo. Immigr. L.J. 261, 265 (2019) (characterizing the immigration courts as a hierarchical bureaucracy that advances executive branch policy); Jayanth K. Krishnan, Judicial Power—Immigration-Style, 73 Admin. L. Rev. 317, 323 (2021) (“Ideology and politics are an inescapable part of the atmosphere in which [immigration judges] hear cases and issue their decisions.”). ↑
  27.  See, e.g., Stella Burch Elias, “Good Reason to Believe”: Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev. 1109, 1115; Jennifer M. Chacón, A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights, 59 Duke L.J. 1563, 1563 (2010); Tania N. Valdez, Pleading the Fifth in Immigration Court: A Regulatory Proposal, 98 Wash. U. L. Rev. 1343, 1343–44 (2021) (highlighting the lack of procedural protections in immigration court). ↑
  28.  See, e.g., Dylan Farrell-Bryan, Relief or Removal: State Logics of Deservingness and Masculinity for Immigrant Men in Removal Proceedings, 56 L. & Soc’y Rev. 167, 173–74 (2022) (studying a Northeast immigration court that “primarily handles the cases of individuals who are not detained”); David Hausman & Jayashri Srikantiah, Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court, 84 Fordham L. Rev. 1823, 1826 (2016) (analyzing the nondetained cases of children and families); Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 Stan. L. Rev. 295, 327 (2007) (taking steps to exclude detained cases from analysis). ↑
  29.  See, e.g., Nicholas R. Bednar, The Public Administration of Justice, 44 Cardozo L. Rev. 2139, 2162–63 (2023); Daniel E. Chand, William D. Schreckhise & Marianne L. Bowers, The Dynamics of State and Local Contexts and Immigration Asylum Hearing Decisions, 27 J. Pub. Admin. Rsch. & Theory 182, 191–93, tbls.3, 4 & 5 (2017); Catherine Y. Kim & Amy Semet, An Empirical Study of Political Control Over Immigration Adjudication, 108 Geo. L.J. 579, 588–89 (2020); Emily Ryo & Ian Peacock, Represented but Unequal: The Contingent Effect of Legal Representation in Removal Proceedings, 55 L. & Soc’y Rev. 634, 635 (2021); Banks Miller, Linda Camp Keith & Jennifer S. Holmes, Immigration Judges and U.S. Asylum Policy 10 (2015). ↑
  30.  See, e.g., Emily Ryo, Representing Immigrants: The Role of Lawyers in Immigration Bond Hearings, 52 L. & Soc’y Rev. 503, 503 (2018); Denise L. Gilman, To Loose the Bonds: The Deceptive Promise of Freedom from Pretrial Immigration Detention, 92 Ind. L.J. 157, 157 (2016). ↑
  31.  See, e.g., Steering Comm. of the N.Y. Immigrant Representation Study Rep., Accessing Justice: The Availability and Adequacy of Counsel in Removal Proceedings, 33 Cardozo L. Rev. 357, 361 (2011); Aditi Shah, Constitutional and Procedural Pathways to Freedom from Immigration Detention: Increasing Access to Legal Representation, 35 Geo. Immigr. L.J. 181, 181 (2020); Talia Peleg & Ruben Loyo, Transforming Deportation Defense: Lessons Learned from the Nation’s First Public Defender Program for Detained Immigrants, 22 CUNY L. Rev. 193, 193 (2018). ↑
  32.  See, e.g., Asad L. Asad, Deportation Decisions: Judicial Decision-Making in an American Immigration Court, 63 Am. Behav. Scientist 1221, 1241–44 (2019) (drawing on observations of hearings in the Dallas immigration court); Robert E. Koulish, Systemic Deterrence Against Prospective Asylum Seekers: A Study of the South Texas Immigration District, 19 N.Y.U. Rev. L. & Soc. Change 529, 553 (1992) (observing the Harlingen immigration court); Peter L. Markowitz, Barriers to Representation for Detained Immigrants Facing Deportation: Varick Street Detention Facility, A Case Study, 78 Fordham L. Rev. 541, 553 (2009) (studying the Varick Street court in New York); Christopher Levesque et al., Crimmigrating Narratives: Examining Third-Party Observations of US Detained Immigration Court, 48 L. & Soc. Inquiry 407, 407 (2023) (analyzing data from a court observation project conducted in the Fort Snelling immigration court). All of these detained courts are included in Figure 1, infra. ↑
  33.  Juliet P. Stumpf, Civil Detention and Other Oxymorons, 40 Queen’s L.J. 55, 96 (2014). ↑

  34.  Nancy Hiemstra & Deirdre Conlon, Beyond Privatization: Bureaucratization and the Spatialities of Immigration Detention Expansion, 5 Territory, Pol., Governance 252, 254 (2017). ↑

Separation of Structures

In a series of decisions—Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law v. Consumer Financial Protection Bureau, and Collins v. Yellen—the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation of powers scholarship has focused on the division of powers into legislative, executive, and judicial functions.

This Article supplies the missing account of separation of structures, and in the process defends the legitimacy of the administrative state against its critics. It argues that an emphasis on an agency’s institutional structure in adjudicating constitutionality is deeply rooted in constitutional design and the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanisms in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation.

Introduction

Modern separation of powers doctrine is in disarray. While the Supreme Court routinely decides questions of interbranch conflict, agency structure, and delegation,1 1.E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Stern v. Marshall, 564 U.S. 462, 469 (2011); Gundy v. United States, 139 S. Ct. 2116, 2129 (2019).Show More both its approaches and the cases’ outcomes feature sharp disagreement and immense unpredictability. Much of the contemporary jurisprudence on the President’s power to remove agency officials, for example, derives from two contrasting precedents. In Myers v. United States, the Court held that the Decision of 1789 gave the President constitutional entitlement to remove executive branch officials for any reason.2 2.272 U.S. 52, 119 (1926).Show More A mere nine years later, in Humphrey’s Executor v. United States, the Court empowered Congress to specify for-cause removal conditions for independent agencies with quasi-legislative and quasi-judicial functions.3 3.Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 699–701 (2018) (recounting Justice Sutherland’s attempts to distinguish Humphrey’s Executor from Myers based on the term of years established in the FTC’s organic statute and the quasi-legislative, quasi-judicial character of the FTC).Show More Today’s debate tracks this disagreement: after Morrison v. Olson articulated an open-textured inquiry of whether removal restrictions impede the President’s ability to execute his Take Care duties, the Court reversed course by adopting, in Free Enterprise Fund v. Public Company Accounting Oversight Board (“PCAOB”), a bright-line rule that dual-layered for-cause restrictions are unconstitutional.4 4.Morrison v. Olson, 487 U.S. 654, 691–92 (1988); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1841–43 (2016).Show More Such incongruity extends to other spheres of doctrinal engagement. With respect to congressional grants of adjudicative authority to non-Article III tribunals, the Court has applied a pragmatic test and concluded that an agency’s jurisdiction over common law counterclaims is constitutional; the Court has also taken a more formalist approach and held that such jurisdiction contravenes separation of powers.5 5.Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851–52 (1986); Stern, 564 U.S. at 482–83; see William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1519–21 (2020) (reconciling non-Article-III adjudication with functional separation of powers); infra Figure 2.Show More When determining which officials are “inferior Officers” for the purposes of the Appointments Clause, the Court has characterized an independent counsel—not subordinate to any executive branch officers—as an inferior officer, while defining, a decade later, inferior officers as those supervised by principal officers.6 6.Morrison, 487 U.S. at 671; Edmond v. United States, 520 U.S. 651, 663 (1997); see United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985–86 (2021).Show More The latest victims of this doctrinal quagmire are the Consumer Financial Protection Bureau (“CFPB”) and the Federal Housing Finance Agency (“FHFA”): the Court—splintered along ideological lines—invalidated for-cause removal restrictions on those agencies’ directors.7 7.Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021).Show More

Underpinning these doctrinal puzzles are patterns that only muddy the waters. The Court has announced, with some consistency, the purpose of its separation of powers doctrine: to erect “structural protections against abuse of power [that are] critical to preserving liberty.”8 8.Seila Law, 140 S. Ct. at 2202 (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986)).Show More But precisely how (or why) policing the confines of government bodies’ distinct powers contributes to individual freedom is unclear,9 9.Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L. Rev. 31, 37 (2016).Show More and the mechanisms of effectuating that goal are unpredictable. The Court has considered a combination of three factors: function, power, and design. It has asked whether the function, or the type of authority, exercised by the government body is of the kind constitutionally assigned to it by its Vesting Clause: for example, whether the Commodities Futures Trading Commission’s jurisdiction over common law claims represents an exercise of the judicial function.10 10.Schor, 478 U.S. at 851.Show More It has asked whether the magnitude of one actor’s authority impedes the ability of another to fulfill its constitutional responsibilities: for example, whether the CFPB has “potent enforcement powers” and “extensive adjudicatory authority.”11 11.Seila Law, 140 S. Ct. at 2193.Show More It has also considered issues of institutional design: for example, whether congressionally mandated for-cause removal conditions create a double layer of protection for executive personnel.12 12.Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see also Lisa Shultz Bressman, What Seila Law Says About Chief Justice Roberts’ View of the Administrative State, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-bress‌man [https://perma.cc/97HT-CNRH] (arguing that Seila Law changes existing jurisprudence by “let[ting] the structure of the agency determine the degree of presidential control over its principal officers”).Show More But precisely which factor the Court will emphasize (and the interaction among them) remains a puzzle. In particular, it is unclear whether considerations of design constitute an independent analysis or are merely parasitic upon issues of power and function. For these reasons, scholars have characterized separation of powers doctrine as a “hoary non sequitur”13 13.Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 105 (1988).Show More and criticized it for its “[l]ack of progress.”14 14.M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1129 (2000); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreview‌blog.uchicago.edu/2020/08/27/seila-mashaw [https://perma.cc/BMT9-NK6C] (characterizing the doctrine on for-cause removal as a “jurisprudential train wreck”).Show More

Academic commentary has not successfully explained the doctrinal variation.15 15.See infra Part I.Show More Scholars have developed complex models to ground the Court’s separation of powers jurisprudence. But those models only underscore disagreement over the fundamental building blocks of their theories. Relying on the Vesting Clauses, scholars have argued that the three constitutional branches of government are each assigned distinct functions.16 16.See infra notes 32–36 and accompanying text.Show More These separation models, however, suffer from inconsistency with contemporary practice, not the least from the rise of the powerful administrative state.17 17.See infra notes 40–48 and accompanying text. Strict separation-model theorists question the legitimacy of the modern administrative state, prominently by appeals to the nondelegation doctrine. E.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (arguing that the “civics-book model of legislators legislating, executives executing, and judges judging has enormous intuitive—and legitimating—power,” which explains the modern obsession with the nondelegation doctrine despite its disuse); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021) (arguing there is significant evidence the Founding generation adhered to a robust nondelegation doctrine that was keenly faithful to traditional separation of powers); see also infra Subsection IV.B.3.Show More Other scholars have committed to a more fluid balance among the branches and proposed judicial intervention as a means to restore accountability and good governance.18 18.See infra notes 49–55 and accompanying text.Show More But these balance models offer little doctrinal determinacy and threaten nonjusticiability.19 19.See infra notes 56–57 and accompanying text.Show More Most attempts to combine the two main approaches are limited to specialized arenas and have not generated consensus.20 20.See infra Section I.C.Show More The most recent scholarly strands have suggested exogenous approaches that abandon existing doctrinal molds altogether.21 21.See infra notes 73–78.Show More

This Article argues that, in contemporary discourse about separation of powers, an important piece of the puzzle is missing. The Article articulates a theory of separation of structures, which in its simplest version posits that political authority should depend not only on the power being exercised but also on the institutional structure of the government entity that exercises the power. Previous theories—separation and balance models alike—have focused exclusively on the nature or the magnitude of the contested functions: for example, whether an agency in the executive branch has performed actions that are adjudicative in nature (and therefore encroached on the judiciary), or whether Congress has assigned to itself so extensive an authority as to disrupt the distribution of powers among the constitutional branches.22 22.See infra Sections I.A–B.Show More But an account of separation of powers is incomplete without considering the structural design of the entity performing the contested functions: for example, whether an agency’s unitary structure concentrates power and heightens the need for accountability, or whether a multimember body facilitates deliberation and expertise necessary for technical decision-making. The case law of the past decade has unmistakably established the relevance of institutional design.23 23.E.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); Collins v. Yellen, 141 S. Ct. 1761, 1770–71 (2021).Show More This Article supplies this missing account of institutional structure in separation of powers.

Importantly, separation of structures originated in ancient Greek and Roman political theory, indelibly shaped the Founding generation’s understanding, and formed an integral part of the constitutional design. Separation of powers—the structural and the functional strands—finds its genesis in Aristotle’s typology of regimes, which divides constitutions into six types based on the numerosity of the governing class and constitution’s compliance with (or deviation from) the normative ends of government.24 24.See infra Section II.A.Show More Polybius, a second-century Greek historian, transforms this typology into a theory of mixed government.25 25.See infra Section II.B.Show More None of the basic Aristotelian constitutional forms (monarchy, aristocracy, and democracy), individually considered, instantiates desirable political design. The perfect constitution incorporates each regime type. Separation of structures remained highly influential in the early-modern period: Montesquieu subscribed to a version of the model,26 26.See infra Section II.D.Show More and the English political theorists adapted it to justify the constitutional setup of England.27 27.See infra Section II.C.Show More The Founding generation, well-versed in classical philosophy and ancient history, saw separation of structures and mixed government as background assumptions of any successful constitutional design.28 28.See infra Part III.Show More Although the Founders ultimately abandoned the British (what I call the sociological) notion of mixed government, the structural provisions of the Constitution, with its institution of representation, evinced a return to Aristotelian separation of structures. The absence of separation of structures in contemporary discussion accounts in part for the doctrinal disarray and the scholarly disagreement.29 29.Most scholars give only cursory treatment to the Aristotelian origins of separation of powers. See, e.g., Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Nw. U. L. Rev. 527, 529–36 (2012). Serious assessments of classical political philosophy’s contribution to modern jurisprudence are outdated and cannot account for the dramatic rise of the administrative state. See John A. Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393, 393–94 (1923); Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Admin. L. Rev. 299, 300 (1976); Malcolm P. Sharp, The Classical American Doctrine of the “Separation of Powers,” 2 U. Chi. L. Rev. 385, 386–87 (1935) (identifying Aristotle’s Politics as containing the “original statement of the doctrine” of mixed regimes “closely related in classic American political writing to the separation of powers”). While Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 152–53 (1998) rejects the mixed-regime view of separation of powers, John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comment. 283, 292 (1999) acknowledges its inevitability. Part III argues that while Wood rightly points out the demise of the British theory, the Founders’ rejection of the sociological version of mixed government in fact signaled a return to the basic Aristotelian model.Show More

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by scholars. This structural framework thus provides a limiting principle to the doctrine of Free Enterprise Fund, Seila Law, and Collins v. Yellen. Further, congressional delegation to agencies cannot be conceptualized as a violation of separation of powers on the sole ground that delegation allows executive branch agencies to exercise legislative power. Instead, advocates of a muscular nondelegation doctrine often fail to recognize that agency structure can mitigate potential violations of functional separation of powers. Both implications are urgent in today’s doctrinal milieu. Not only does the Court continue to entrench its agency-structure jurisprudence—it appears poised to extend the nondelegation doctrine.30 30.See infra Subsection IV.B.3.Show More

The remainder of the Article proceeds as follows. Part I situates separation of structures within the existing scholarly models. Part II turns to the classical and early-modern origins of separation of structures. Part III examines the adoption of separation of structures as part of Founding-era constitutional design. Part IV discusses doctrinal and scholarly implications.

  1.  E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952); Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Stern v. Marshall, 564 U.S. 462, 469 (2011); Gundy v. United States, 139 S. Ct. 2116, 2129 (2019). ↑
  2.  272 U.S. 52, 119 (1926). ↑
  3.  Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935); see also Aditya Bamzai, Taft, Frankfurter, and the First Presidential For-Cause Removal, 52 U. Rich. L. Rev. 691, 699–701 (2018) (recounting Justice Sutherland’s attempts to distinguish Humphrey’s Executor from Myers based on the term of years established in the FTC’s organic statute and the quasi-legislative, quasi-judicial character of the FTC). ↑
  4.  Morrison v. Olson, 487 U.S. 654, 691–92 (1988); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1841–43 (2016). ↑
  5.  Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 851–52 (1986); Stern, 564 U.S. at 482–83; see William Baude, Adjudication Outside Article III, 133 Harv. L. Rev. 1511, 1519–21 (2020) (reconciling non-Article-III adjudication with functional separation of powers); infra Figure 2. ↑
  6.  Morrison, 487 U.S. at 671; Edmond v. United States, 520 U.S. 651, 663 (1997); see United States v. Arthrex, Inc., 141 S. Ct. 1970, 1985–86 (2021). ↑
  7.  Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 (2020); Collins v. Yellen, 141 S. Ct. 1761, 1787 (2021). ↑
  8.  Seila Law, 140 S. Ct. at 2202 (quoting Bowsher v. Synar, 478 U.S. 714, 730 (1986)). ↑
  9.  Daryl J. Levinson, The Supreme Court 2015 Term—Foreword: Looking for Power in Public Law, 130 Harv L. Rev. 31, 37 (2016). ↑
  10.  Schor, 478 U.S. at 851. ↑
  11.  Seila Law, 140 S. Ct. at 2193. ↑
  12.  Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); see also Lisa Shultz Bressman, What Seila Law Says About Chief Justice Roberts’ View of the Administrative State, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreviewblog.uchicago.edu/2020/08/27/seila-bress‌man [https://perma.cc/97HT-CNRH] (arguing that Seila Law changes existing jurisprudence by “let[ting] the structure of the agency determine the degree of presidential control over its principal officers”). ↑
  13.  Stephen L. Carter, The Independent Counsel Mess, 102 Harv. L. Rev. 105, 105 (1988). ↑
  14.  M. Elizabeth Magill, The Real Separation in Separation of Powers Law, 86 Va. L. Rev. 1127, 1129 (2000); see also Jerry L. Mashaw, Of Angels, Pins, and For-Cause Removal: A Requiem for the Passive Virtues, U. Chi. L. Rev. Online (Aug. 27, 2020), https://lawreview‌blog.uchicago.edu/2020/08/27/seila-mashaw [https://perma.cc/BMT9-NK6C] (characterizing the doctrine on for-cause removal as a “jurisprudential train wreck”). ↑
  15.  See infra Part I. ↑
  16.  See infra notes 32–36 and accompanying text. ↑
  17.  See infra notes 40–48 and accompanying text. Strict separation-model theorists question the legitimacy of the modern administrative state, prominently by appeals to the nondelegation doctrine. E.g., Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 332 (2002) (arguing that the “civics-book model of legislators legislating, executives executing, and judges judging has enormous intuitive—and legitimating—power,” which explains the modern obsession with the nondelegation doctrine despite its disuse); Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1493–94 (2021) (arguing there is significant evidence the Founding generation adhered to a robust nondelegation doctrine that was keenly faithful to traditional separation of powers); see also infra Subsection IV.B.3. ↑
  18.  See infra notes 49–55 and accompanying text. ↑
  19.  See infra notes 56–57 and accompanying text. ↑
  20.  See infra Section I.C. ↑
  21.  See infra notes 73–78. ↑
  22.  See infra Sections I.A–B. ↑
  23.  E.g., Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2191–92 (2020); Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010); Collins v. Yellen, 141 S. Ct. 1761, 1770–71 (2021). ↑
  24.  See infra Section II.A. ↑
  25.  See infra Section II.B. ↑
  26.  See infra Section II.D. ↑
  27.  See infra Section II.C. ↑
  28.  See infra Part III. ↑
  29.  Most scholars give only cursory treatment to the Aristotelian origins of separation of powers. See, e.g., Steven G. Calabresi, Mark E. Berghausen & Skylar Albertson, The Rise and Fall of the Separation of Powers, 106 Nw. U. L. Rev. 527, 529–36 (2012). Serious assessments of classical political philosophy’s contribution to modern jurisprudence are outdated and cannot account for the dramatic rise of the administrative state. See John A. Fairlie, The Separation of Powers, 21 Mich. L. Rev. 393, 393–94 (1923); Arthur S. Miller, Separation of Powers: An Ancient Doctrine Under Modern Challenge, 28 Admin. L. Rev. 299, 300 (1976); Malcolm P. Sharp, The Classical American Doctrine of the “Separation of Powers,” 2 U. Chi. L. Rev. 385, 386–87 (1935) (identifying Aristotle’s Politics as containing the “original statement of the doctrine” of mixed regimes “closely related in classic American political writing to the separation of powers”). While Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 152–53 (1998) rejects the mixed-regime view of separation of powers, John Hart Ely, The Apparent Inevitability of Mixed Government, 16 Const. Comment. 283, 292 (1999) acknowledges its inevitability. Part III argues that while Wood rightly points out the demise of the British theory, the Founders’ rejection of the sociological version of mixed government in fact signaled a return to the basic Aristotelian model. ↑

  30.  See infra Subsection IV.B.3. ↑

Constitutional Rights and Remedial Consistency

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. The Article explores how a commitment to generality and neutrality values can translate into a paradigm promoting transsubstantivity (meaning consistent applicability across separate substantive concerns) for constitutional remedies (meaning rules for implementing and preventing or punishing the violation of constitutional rights)—and how the Supreme Court has deviated from this paradigm. Supported by an array of examples, the Article proposes a novel framework turning on the notion that remedial inconsistency can be transparent, translucent, or opaque given the clarity of doctrinal inconsistency. Prophylactic remedial doctrines (like the Miranda-warning mandate and First Amendment overbreadth) are transparently inconsistent, for instance, because they apply differently to discrete rights on their faces. And indeterminate remedial standards (like the political question doctrine for justiciability and the “plan of the Convention” doctrine for state sovereign immunity) are opaquely inconsistent because discerning their variable character requires inductive analysis of actual applications.

After these descriptive claims, the Article proceeds to a normative examination of how this framework could help improve judicial approaches to constitutional remedies—while recognizing that non-transsubstantive doctrines are desirable in many circumstances. Courts, for example, should work to make doctrines of opaque and translucent inconsistency more transparent so that appropriate institutional actors can more easily assess, affirm, alter, or abandon them. And judges should consider the risk of introducing unnecessary elements of opaque inconsistency before relying on overdeterminative reasoning to reach otherwise established results. Among additional contributions, by providing innovative tools for centering remedial consistency as an important—but not absolute—aspect of constitutional law, this Article offers a potential step toward decreasing perceptions of the Supreme Court’s work as pervasively political, thereby reinforcing its legitimacy at this time of widespread skepticism.

Introduction

What if the U.S. Supreme Court had decided Dobbs v. Jackson Women’s Health Organization1 1.142 S. Ct. 2228 (2022).Show More differently, such that Roe v. Wade2 2.410 U.S. 113 (1973).Show More (or some other set of abortion protections) remained the law of the land? It might not have mattered much in practice. For as those paying attention even before the Dobbs opinion leak will remember, Texas enacted a “heartbeat bill,” S.B. 8 (Senate Bill 8), prohibiting abortion at a point in pregnancy long before prevailing precedent allowed—and long before many people would have known they were pregnant.3 3.See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021, 11:00 AM), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-ab‌ortions-law [https://perma.cc/MRV9-UFKW].Show More By confining the bill’s enforcement to civil suits with private plaintiffs, Texas circumvented the usual system that enables regulated parties to challenge a law’s constitutionality in federal court without running the risk of violating it.4 4.See Charlie Savage, What is Ex Parte Young, Much-Discussed in the Texas Abortion Case?, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/11/01/us/politics/what-is-ex-parte.html [https://perma.cc/ZB9F-ELTX].Show More Separate and apart from Dobbs, that is, Texas avoided a crucial remedy for enforcing abortion rights and, in doing so, essentially eliminated abortion rights themselves. Other states soon followed suit.5 5.See Kate Zernike, Idaho Is First State to Pass Abortion Ban Based on Texas’ Law, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.‌html [https://perma.cc/9U98-2CTA].Show More

The Supreme Court refused to reject this scheme first on the shadow docket (by declining to prevent S.B. 8 from taking effect)6 6.Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021).Show More and then after merits briefing and oral argument (by holding that challengers could not sue state court judges, state court clerks, the state attorney general, or a potential private plaintiff).7 7.Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021).Show More The Court did permit the case to continue against a handful of Texas officials responsible for medical licensing.8 8.Id.Show More But in response to a certified question on remand, the Supreme Court of Texas interpreted state law as withholding enforcement authority from those officials, effectively ending the attack on S.B. 8 more than three months before Dobbs came down.9 9.See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); see also Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”).Show More

Critics condemned the Supreme Court for allowing this remedial end-run around abortion rights.10 10.See, e.g., Strict Scrutiny, A Uterus, If You Can Keep It, Crooked Media, at 27:00 (Dec. 10, 2021), https://castbox.fm/episode/A-Uterus%2C-If-You-Can-Keep-It-id2173578-id4496‌96579? [https://perma.cc/LMQ9-WS9A] (podcast episode hosted by Professors Leah Litman, Melissa Murray, and Kate Shaw, with guest Professor Steve Vladeck).Show More One prominent theme became that the majority would have never tolerated the similar treatment of some preferred legal protection—say, gun rights. “Imagine a world in which the DOJ was challenging a CA law that was identical to TX #SB8 but swap abortion for guns,” Professor Amanda Hollis-Brusky posted on X, formerly Twitter.11 11.Amanda Hollis-Brusky (@HollisBrusky), X (Dec. 10, 2021, 11:00 AM), https://twitter.‌com/HollisBrusky/status/1469336195045814278?s=20 [https://perma.cc/NRH3-SCD3].Show More “Gun sales have stopped,” and “[g]un ownership is a de facto state crime despite 2nd A,” she continued, referencing the Second Amendment right to keep and bear arms.12 12.Id.Show More “Now ask yourself,” she said rhetorically: “[W]ould the conservative Justices have ruled differently?”13 13.Id.; see also, e.g., Jacob D. Charles, Are Gun Rights Safe After S.B. 8?, The Hill (Dec. 15, 2021, 9:31 AM), https://thehill.com/opinion/judiciary/585700-are-gun-rights-safe-after-sb8/ [https://perma.cc/LXW5-DPRB] (stating that “it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake”).Show More This refrain reemerged when California indeed enacted a copycat gun-control scheme14 14.E.g., Evan Bernick (@evanbernick), X (July 23, 2022, 11:50 PM), https://perma.cc/‌VAQ4-4MPW (“If SCOTUS does take [the California gun control law] up, I doubt it will be treated similarly. Which is part of why the prospect of this getting struck down is not going to deter conservatives from modeling other stuff on SB 8.”); see Cal. Code Civ. Proc. § 1021.11.Show More—which went into effect after a federal trial court held a tangential provision invalid.15 15.See S. Bay Rod & Gun Club, Inc. v. Bonta, 646 F. Supp. 3d 1232, 1235 (S.D. Cal. 2022); Miller v. Bonta, 646 F. Supp. 3d 1218, 1222 (S.D. Cal. 2022); see Jon Healey, Californians Have a Green Light to Sue the Gun Industry. How Will That Work?, L.A. Times (Jan. 1, 2023, 3:36 PM), https://www.latimes.com/california/story/2023-01-01/californians-will-soon-have‌-their-chance-to-sue-the-gun-industry [https://perma.cc/XT7P-6A7Q] (explaining that a federal district court “nixed . . . the ‘fee-shifting’ provision that would have saddled gun-industry litigants with all or part of the court costs from any suit challenging the state’s gun controls, even if they prevailed in court,” but that “[t]he rest of [the law] remains in effect, including the private right of action”).Show More

Stakeholders on the left are justified in feeling this anxiety. But they are not alone, for stakeholders on the right have repeatedly leveled a converse condemnation about the preceding era in judicial history. The majority in Dobbs itself contended that prior abortion jurisprudence “diluted the strict standard for facial constitutional challenges,” “ignored the Court’s third-party standing doctrine,” “disregarded standard res judicata principles,” “distorted First Amendment doctrines,” and “flouted” both “the ordinary rules on the severability of unconstitutional provisions” and “the rule that statutes should be read where possible to avoid unconstitutionality.”16 16.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022).Show More

Comments like these arise from and attest to the idea that at the federal level, the United States has two Constitutions: what one could call the conservative Constitution and what one could call the liberal or progressive Constitution. The point is not only that different ideological groups interpret the Constitution using different methods and causing different effects. The point is also that different ideological groups value, invoke, and—in the case of judges—advance the law surrounding different constitutional provisions to the detriment or disregard of others. As Professor Zachary Price puts a similar point, while progressives “typically embrace a constitutional vision centered on advancing social justice, protecting sexual and reproductive autonomy, and enabling expert administrative governance,” conservatives “typically focus on protecting historic understandings of individual rights (including gun rights and religious freedom), leaving moral questions to the political process, and restoring a traditional view of separation of powers.”17 17.Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1280 (2019).Show More

This phenomenon comes into stark relief with respect to individual rights—those provisions, largely located in the Bill of Rights and the Reconstruction Amendments, that constrain government action to preserve spheres of personal freedom. A 2016 survey, for example, found that while “41% of Americans” identified the First Amendment as “the most important” part of the Bill of Rights, “Republicans (27%)” were “much more likely than Democrats (6%) to say that the Second Amendment is the most important,” with Democrats putting the Fourth Amendment in second place.18 18.Peter Moore, First Amendment Is the Most Important, and Well Known, Amendment, YouGov (Apr. 12, 2016, 3:15 PM), https://today.yougov.com/topics/politics/articles-reports/‌2016/04/12/bill-rights [https://perma.cc/Q73Y-5FDM].Show More And while the Roberts Court has recently elevated Second Amendment protections to unprecedented heights,19 19.See generally Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023) (outlining the unique development of, and some challenges within, Second Amendment jurisprudence).Show More the Justices have not granted plenary review on a Fourth Amendment question for more than three years.20 20.See Joel S. Johnson, Supreme Court Cases of Interest, Crim. Just., Fall 2023, at 44, 44–45 (noting that “[t]he Court has not granted certiorari on a Fourth Amendment issue since 2020”).Show More

That different ideological groups favor and disfavor separate sets of constitutional provisions undoubtedly contributes to declining confidence in the Supreme Court.21 21.See Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme‌-court-leak-abortion-roe-wade.html [https://perma.cc/6VD6-GJF9] (“A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.”).Show More Knowing that members of the two major political parties and the predominant legal factions prefer discrete protections, it is not surprising that recent survey results indicate that when asked how well the Justices are “keeping their own political views out of how they decide major cases,” 53% of all respondents answered “only fair” or “poor,” while just 18% answered “excellent” or “good.”22 22.Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-sup‌reme-court-decline-sharply-following-abortion-ruling/ [https://perma.cc/MXM3-8TP7].Show More Nor is it surprising, given the Court’s changing composition, that Democrats expressed significantly more negative views, with 70% choosing “only fair” or “poor” and just 6% choosing “excellent” or “good.”23 23.Id.Show More Given these realities, one could reasonably feel pessimistic about how much could be done in the near future from a cross-ideological perspective to improve perceptions about the law of constitutional rights. A possible path to achieving a similar bridge-building objective, however, emerges with respect to how courts enforce such rights—with respect, that is, to the law of constitutional remedies.

This Article is about consistency, and inconsistency, in judicial decision-making—and more specifically, about the extent to which federal courts should provide similar opportunities to obtain relief for wrongs to discrete constitutional rights. Underlying both sets of abortion-related criticisms above is the idea that certain facets of the law—and especially the law of constitutional remedies, understood “broadly” (for thematic purposes here, but not everywhere) as including “rules for implementing constitutional rights and preventing or punishing their violation”24 24.Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 861 (1999).Show More—should stay consistent across separate substantive areas. This idea, the remedial consistency paradigm, derives in part from the deeply rooted values of generality and neutrality in judicial decision-making. But the remedial consistency paradigm does not always control. With the Roberts Court repeatedly placing discrete rights guarantees on different remedial grounds, this topic deserves systematic scholarly scrutiny.

This Article advances in three parts. Part I explains how the remedial consistency paradigm arises from the concept of transsubstantivity, beginning by connecting the paradigm with generality and neutrality values and exploring transsubstantivity’s current salience. This Part then offers several conceptual observations—including that while discussions about transsubstantivity usually relate to doctrinal consistency across discrete legal issues, transsubstantivity can also relate to doctrinal consistency across discrete interests or facts; that transsubstantivity represents a matter of degree; and that transsubstantivity depends on the measure of evaluation. Finally, this Part discusses why transsubstantivity is especially important in the context of constitutional remedies as a species of process law and as a possible point of cross-ideological consensus. Critically, constitutional remedies are the focus of the analysis throughout. But before introducing that context, the explanatory sections rely on examples from other areas as well. The implication is not that considerations concerning transsubstantivity should look the same within and beyond constitutional remedies—just that one can gain a richer understanding of the concept without worrying about context-specific limitations.

Part II proposes a novel framework for understanding remedial inconsistency in constitutional adjudication. The framework provides a classification of different kinds of remedial inconsistency organized by the clarity of non-transsubstantivity, with concrete examples for each. Transparent inconsistency, which includes prophylactic and legislative remedial doctrines, refers to areas of law that treat discrete referents differently on their faces. Translucent inconsistency emerges through background knowledge about the legal landscape, including with respect to areas implicating fact-sensitive versus fact-insensitive claims and irregular interactions with external sources of law. Opaque inconsistency, which often surrounds doctrines involving indeterminate tests and comparator cases demonstrating uneven reliance on expansive principles, becomes apparent only with inductive analysis of actual applications.

This Part introduces, both conceptually and illustratively, a large body of constitutional remedies doctrines that treat discrete substantive concerns differently. The catalog is extensive but not exhaustive, and the borders between the categories of transparent, translucent, and opaque inconsistency can be cloudy and contestable. Someone may think, for instance, that a case described here as opaquely inconsistent is actually translucently inconsistent—or not inconsistent with other relevant areas at all. But that should not detract from the bigger-picture argument that non-transsubstantivity is present, prevalent, and patterned along analytically important lines throughout constitutional remedies law.

Courts, and especially the Supreme Court, can do better. Moving from the descriptive to the normative, Part III explores four ideas for improving judicial decision-making premised on the preceding analysis. The first revolves around enhancing attention on remedial consistency by spotlighting occasions for adherence and defending instances of divergence. One way to do so involves imagining a rebuttable presumption by which constitutional remedies should apply the same way to discrete referents unless circumstances warrant idiosyncratic treatment. The second idea for improvement entails increasing transparency. All non-transsubstantive doctrines involve variable ranges, but because they apply differently to discrete referents on their faces, transparently inconsistent doctrines involve variable rationales too. The latter characteristic facilitates holding courts accountable for departures from the remedial consistency paradigm at the time of decision and evaluating their continuing justifications into the future—such that judges should work to make inconsistent doctrines more transparent.

The third idea for improvement concerns decreasing the overdetermination endemic to judicial decision-making. Judges have a lawyerly habit of oversubstantiating their analyses with more lines of logic than necessary. This runs the risk of introducing inconsistent elements (and especially opaquely inconsistent elements) into diverse doctrinal areas, as the more reasoning an opinion includes, the more likely that it will conflict with the reasoning in other opinions. The fourth idea for improvement encourages reconsidering, though not necessarily rejecting, foundational doctrines that become inconsistent (or more inconsistent) across constitutional contexts through extensive exceptions or debatable distinctions. Rather than overruling precedent, courts often carve controversial case law into finer and finer, and sometimes more non-transsubstantive, fragments. Focusing on remedial consistency favors reevaluating such decisions in whole.

Among additional contributions, this Part argues that centering remedial consistency as an important, but not absolute, aspect of constitutional law could potentially help reinforce the Supreme Court’s legitimacy at this time of widespread skepticism. For the Court loses legitimacy—whether conceptualized sociologically, morally, or legally—by acting in ways that people perceive as “political” rather than “legal.” By reducing opportunities for favoritism and disfavoritism (and especially unacknowledged favoritism and disfavoritism) among constitutional claims, the ideas suggested here could help renew some faith in the Court as committed to deciding cases on appropriate bases.

  1.  142 S. Ct. 2228 (2022). ↑
  2.  410 U.S. 113 (1973). ↑
  3.  See Shannon Najmabadi, Gov. Greg Abbott Signs into Law One of Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks into a Pregnancy, Tex. Trib. (May 19, 2021, 11:00 AM), https://www.texastribune.org/2021/05/18/texas-heartbeat-bill-ab‌ortions-law [https://perma.cc/MRV9-UFKW]. ↑
  4.  See Charlie Savage, What is Ex Parte Young, Much-Discussed in the Texas Abortion Case?, N.Y. Times (Nov. 1, 2021), https://www.nytimes.com/2021/11/01/us/politics/what-is-ex-parte.html [https://perma.cc/ZB9F-ELTX]. ↑
  5.  See Kate Zernike, Idaho Is First State to Pass Abortion Ban Based on Texas’ Law, N.Y. Times (Mar. 14, 2022), https://www.nytimes.com/2022/03/14/us/idaho-abortion-bill-texas.‌html [https://perma.cc/9U98-2CTA]. ↑
  6.  Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495 (2021). ↑
  7.  Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 539 (2021). ↑
  8.  Id. ↑
  9.  See Whole Woman’s Health v. Jackson, 642 S.W.3d 569, 583 (Tex. 2022); see also Whole Woman’s Health v. Jackson, 31 F.4th 1004, 1006 (5th Cir. 2022) (instructing the district court to “dismiss all challenges to the private enforcement provisions of the statute”). ↑
  10.  See, e.g., Strict Scrutiny, A Uterus, If You Can Keep It, Crooked Media, at 27:00 (Dec. 10, 2021), https://castbox.fm/episode/A-Uterus%2C-If-You-Can-Keep-It-id2173578-id4496‌96579? [https://perma.cc/LMQ9-WS9A] (podcast episode hosted by Professors Leah Litman, Melissa Murray, and Kate Shaw, with guest Professor Steve Vladeck). ↑
  11.  Amanda Hollis-Brusky (@HollisBrusky), X (Dec. 10, 2021, 11:00 AM), https://twitter.‌com/HollisBrusky/status/1469336195045814278?s=20 [https://perma.cc/NRH3-SCD3]. ↑
  12.  Id. ↑
  13.  Id.; see also, e.g., Jacob D. Charles, Are Gun Rights Safe After S.B. 8?, The Hill (Dec. 15, 2021, 9:31 AM), https://thehill.com/opinion/judiciary/585700-are-gun-rights-safe-after-sb8/ [https://perma.cc/LXW5-DPRB] (stating that “it would be hard to see the conservative justices reaching that same conclusion if gun rights were at stake”). ↑
  14.  E.g., Evan Bernick (@evanbernick), X (July 23, 2022, 11:50 PM), https://perma.cc/‌VAQ4-4MPW (“If SCOTUS does take [the California gun control law] up, I doubt it will be treated similarly. Which is part of why the prospect of this getting struck down is not going to deter conservatives from modeling other stuff on SB 8.”); see Cal. Code Civ. Proc. § 1021.11. ↑
  15.  See S. Bay Rod & Gun Club, Inc. v. Bonta, 646 F. Supp. 3d 1232, 1235 (S.D. Cal. 2022); Miller v. Bonta, 646 F. Supp. 3d 1218, 1222 (S.D. Cal. 2022); see Jon Healey, Californians Have a Green Light to Sue the Gun Industry. How Will That Work?, L.A. Times (Jan. 1, 2023, 3:36 PM), https://www.latimes.com/california/story/2023-01-01/californians-will-soon-have‌-their-chance-to-sue-the-gun-industry [https://perma.cc/XT7P-6A7Q] (explaining that a federal district court “nixed . . . the ‘fee-shifting’ provision that would have saddled gun-industry litigants with all or part of the court costs from any suit challenging the state’s gun controls, even if they prevailed in court,” but that “[t]he rest of [the law] remains in effect, including the private right of action”). ↑
  16.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2275–76 (2022). ↑
  17.  Zachary S. Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J. 1273, 1280 (2019). ↑
  18.  Peter Moore, First Amendment Is the Most Important, and Well Known, Amendment, YouGov (Apr. 12, 2016, 3:15 PM), https://today.yougov.com/topics/politics/articles-reports/‌2016/04/12/bill-rights [https://perma.cc/Q73Y-5FDM]. ↑
  19.  See generally Jacob D. Charles, The Dead Hand of a Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023) (outlining the unique development of, and some challenges within, Second Amendment jurisprudence). ↑
  20.  See Joel S. Johnson, Supreme Court Cases of Interest, Crim. Just., Fall 2023, at 44, 44–45 (noting that “[t]he Court has not granted certiorari on a Fourth Amendment issue since 2020”). ↑
  21.  See Jodi Kantor & Jo Becker, Former Anti-Abortion Leader Alleges Another Supreme Court Breach, N.Y. Times (Nov. 19, 2022), https://www.nytimes.com/2022/11/19/us/supreme‌-court-leak-abortion-roe-wade.html [https://perma.cc/6VD6-GJF9] (“A majority of Americans are losing confidence in the institution, polls show, and its approval ratings are at a historic low. Critics charge that the court has become increasingly politicized, especially as a new conservative supermajority holds sway.”). ↑
  22.  Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr. (Sept. 1, 2022), https://www.pewresearch.org/politics/2022/09/01/positive-views-of-sup‌reme-court-decline-sharply-following-abortion-ruling/ [https://perma.cc/MXM3-8TP7]. ↑
  23.  Id. ↑
  24.  Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 861 (1999). ↑
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