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“Streamlining” the Rule of Law: How the Department of Justice Is Undermining Judicial Review of Agency Action

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations, greatly insulating its decision making in the immigration arena from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our system of immigration review.While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. Yet the streamlining rules have had far-reaching doctrinal and practical consequences. They have led to chaos at the agency, where the emphasis in immigration adjudication has explicitly shifted away from reliance on standards and precedents towards increased reliance on discretionary, and often arbitrary, decision making. Immigration appeals have flooded the federal courts, nearly doubling the size of some circuit caseloads, while trapping the courts in a doctrinal quandary between competing du-ties of judicial review and agency deference.This Article argues that, if left unchecked, the Department of Justice’s streamlining reforms will undermine judicial review, turning it in some cases into an illusory exercise incapable of restraining agency action. This weakening of judicial review is unwarranted and unwise. To help stem this erosion, this Article proposes more nuanced interpretations of deference and judicial review principles that can resolve the dilemmas facing the federal courts and help preserve the vitality of judicial review over agency decisions.

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