NOTES
INTERNATIONAL LAW, FEDERAL COURTS, AND
EXECUTIVE DISCRETION: THE INTERPLAY IN
IMMIGRATION DETENTION
KELLY MANNION*
This Note proposes a doctrinal framework to evaluate immigration policy
in the United States, focusing specifically on the interplay between international
law, federal courts, and executive agencies. Ultimately, the Note seeks to delineate the circumstances under which federal courts can and should enforce the
extant customary international law norm prohibiting arbitrary detention as the
federal common law of the United States, limiting the discretionary authority of
lower-tier executive officials to detain certain classes of immigrants without
hearing or review. Its central analysis posits that: (1) the customary international law norm prohibiting arbitrary detention is binding on the United States;
(2) that federal courts can enforce this norm; (3) that Congress has not specifically expressed an intent to override this norm under all circumstances; and
(4) that, in the absence of foreign policy justifications emanating from the
President or his immediate subordinate, lower-tier executive officials are bound to
this norm in the exercise of their prosecutorial discretion. Non-arbitrariness
requires a timely and individualized balancing of equities against policy
justifications for detaining, for example, immigrants who pose little flight risk
and who have families or illnesses, when there are reasonable Alternative to
Detention programs available to serve the same administrative purpose. The
proposed doctrinal framework can apply to any proposed legislation relating to
immigration reform, including that which either supplants or supplements the
current regime.
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. THE “STATUS DEBATE” OVER CUSTOMARY INTERNATIONAL LAW . .
A. The Modern Position . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Revisionist Position . . . . . . . . . . . . . . . . . . . . . . . . . .
III. ENFORCEABILITY OF CIL NORMS AGAINST THE EXECUTIVE
BRANCH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Scholarly Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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* J.D., cum laude, Georgetown University Law Center, 2013; B.A., summa cum laude University
of Notre Dame, 2010. I would like to thank Professors Wallace, Lazarus, and McGrath for their
advice and comments on this Note, the GJIL staff for their editorial support, and my friends and
family for their endless encouragement. And to JRE - thank you for all the laughs. © 2013, Kelly
Mannion.
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B. A Framework of Enforceability: Which Norms Apply and
Against Whom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Which Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Against Whom . . . . . . . . . . . . . . . . . . . . . . . . . . . .
IV. IMMIGRATION DETENTION: ALLOCATED RESPONSIBILITIES AND
HARSH REALITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. . . . . . . . . . . . . . . . . . . . . . . . .
B. The Realities of Immigration Detention. . . . . . . . . . . . . . . .
V. IMMIGRATION AGENTS AND THE EXERCISE OF PROSECUTORIAL
DISCRETION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Prolonged Arbitrary Detention Contrary to CIL . . . . . . . . . .
B. Current Executive Policies. . . . . . . . . . . . . . . . . . . . . . . . .
C. Enforceability of CIL against ICE Attorneys, Officials, and
Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. Federal Courts Can Enforce CIL through Federal
Common Lawmaking Authority. . . . . . . . . . . . . . .
2. Enforceability in the Absence of “Controlling
Executive or Legislative Act” . . . . . . . . . . . . . . . . .
a. No “Controlling Legislative Act” . . . . . . . . . . . . .
b. No “Controlling Executive Act” . . . . . . . . . . . . . .
VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
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INTRODUCTION
International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction as often
as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations . . . .1
The status and role of international law within the U.S. legal system
has been an area of intense scholarly debate since the Founding era.2
Among the many points of contention in this field is the unique tension
1. The Paquete Habana, 175 U.S. 677, 700 (1900).
2. For a brief and general recitation of this debate, largely between the monist and dualist
camps, see Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese
Exclusion and its Progeny, 100 HARV. L. REV. 853, 864-66 (1987) [hereinafter Henkin, Chinese
Exclusion].
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between the Executive’s foreign affairs powers3 and the Executive’s
duty to ensure the faithful execution of the laws.4 Conceptualizing
Justice Gray’s famous dictum from The Paquete Habana—international
law as “part of our law”5—we are left to grapple with the precise contours and implications of this tension.6 In an attempt to give some
definition to these contours, this Note examines whether, and to what
extent, the federal judiciary can and should enforce salient norms of
customary international law (CIL) against the executive branch. Specifically, this Note articulates the constraints that CIL imposes on the
exercise of prosecutorial discretion by executive officials in the practice
of immigration detention.
The current detention regime, as established by the 1996 Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA),7
serves an “administrative purpose . . . to hold, process, and prepare
individuals for removal.”8 However, this civil system bears marked
resemblance to criminal incarceration, without the attendant protections afforded to citizens within governmental custody. One such
protection guaranteed to citizens but denied to non-citizens is the
burden on the government, in a fair adversarial hearing, to make an
individualized demonstration of necessity for detention (versus release
3. By “foreign affairs powers,” I refer to the Executive’s enumerated constitutional powers as
well as the unenumerated authority to act on behalf of the United States within the international
arena. See U.S. CONST. art. II, § 1, cl. 1 (“The executive Power shall be vested in a President of the
United States of America.”); U.S. CONST. art. II, § 2, cl. 1 (Commander in Chief of the Army and
Navy); U.S. CONST. art. II, § 2, cl. 2 (power to make treaties and to appoint ambassadors with the
advice and consent of the Senate); U.S. CONST. art. II, § 3 (authority to receive ambassadors and
other public ministers); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936)
(discussing the “plenary and exclusive power of the President as the sole organ of the federal
government in the field of international relations”).
4. See U.S. CONST. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”).
5. The Paquete Habana, 175 U.S. at 700.
6. Professor Louis Henkin recognizes this tension as arising from the “fact that the President
wears two different, distinct hats. His ‘Executive power’ includes the duty to take care that the laws,
including treaties and customary international law insofar as they are part of U.S. law, be faithfully
executed. But the President, we know, also has independent constitutional authority in foreign
affairs as Executive, as treaty-maker, as ‘sole organ’, and as Commander in Chief.” LOUIS HENKIN,
FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 242 (2d ed. 1996) [hereinafter HENKIN,
FOREIGN AFFAIRS].
7. Pub. L. No. 104-208, 110 Stat. 3009, 3009-546 to 3009-724 (1996).
8. DORA SCHRIRO, U.S. DEP’T OF HOMELAND SEC., IMMIGRATION DETENTION OVERVIEW AND
RECOMMENDATIONS 2 (Oct. 6, 2009), available at http://www.ice.gov/doclib/about/offices/odpp/
pdf/ice-detention-rpt.pdf [hereinafter SCHRIRO REPORT].
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on bail) prior to trial.9 Judicial deference to the political branches in
the immigration context10 has often justified this disparate protection
of non-citizens compared to their citizen brethren as a matter of
constitutional principle; however, as a matter of international law, the
obligations of the United States constrict its treatment of non-citizens.
This Note argues, specifically, that CIL limits the discretionary authority of Immigration and Customs Enforcement (ICE) officials and related agents to detain without individualized review certain classes of
immigrants during deportation proceedings.
To illustrate the application of The Paquete Habana dictum quoted
above in the context of immigration detention, this Note proceeds as
follows: Part II examines the “status debate” concerning CIL within the
domestic constitutional system and concludes that CIL holds the status
of federal common law; Part III discusses the Executive’s “take care”
duties in light of the federal enforceability of CIL norms; Part IV
illustrates the current statutory framework governing immigration
regulation and addresses the gross realities of modern immigration
detention; and Part V advances the central argument that lower-level
executive officials are bound, in the absence of definitive legislative
enactment or qualified Executive directive, to norms of CIL prohibiting arbitrary and indeterminate detention.
II.
THE “STATUS DEBATE” OVER CUSTOMARY INTERNATIONAL LAW
The “status debate,” concerning the status of customary international law within a domestic legal system founded upon constitutional
precepts and committed to federalism and separation of powers principles, is shaded with complexities. Accepting the call of The Paquete
Habana ushers in a host of questions in search of resolution: if CIL is,
like treaties and federal statutes, federal law, and is administered by
federal courts by virtue of their common law authority, does it bind the
states as supreme law? Does it constrain the executive? Does it overturn
prior inconsistent legislation? Does it involve an activist federal judiciary making law where the democratic mechanisms and political
branches have not themselves created or signaled a certain outcome?
Courts and commentators alike have struggled with these questions,
revealing a fundamental divide between proponents of the “revisionist
9. United States v. Salerno, 481 U.S. 739, 750-52 (1987) (recognizing the substantive
safeguards included within the Bail Reform Act in rejecting challenges to its constitutionality).
10. For reflection on this so-called “plenary power doctrine,” see infra text accompanying
notes 98-101.
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position” and those of the “modern position.”11 Even within these two
camps, the level of nuance required to answer these questions pushes
the scholarly divide further and exposes differing views on the status of
CIL within our jurisprudential hierarchy.12
A.
The Modern Position
In general terms, the modern position views customary international
law as domestic law, specifically, as federal common law. The import
of The Paquete Habana enjoys roots in early Supreme Court jurisprudence,13 recognition from members of the constitutional generation,14 majority support among contemporary academics,15 designation in the Restatement of the Foreign Relations Law in the United States
(Restatement),16 and ratification from modern courts.17 Commentators
continue to debate, however, the consequences of this approach to
customary international law—that is, what it means in practice. One
common thread that seems to tie adherents of the modern position
11. There are numerous scholarly works dedicated to the subject of “revisionist vs. modern
position.” For a general overview of these two camps, see Curtis A. Bradley and Jack L. Goldsmith,
Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L.
REV. 815 (1997) [hereinafter Bradley, Customary International Law as Federal Common Law].
12. For an illustration of this intra-camp divide, see Carlos M. Vázquez, Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern
Position, 86 NOTRE DAME L. REV. 1495 (2011) [hereinafter Vázquez, A Critique].
13. See, e.g., The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (“[T]he Court is bound by the
law of nations which is a part of the law of the land.”); Brown v. United States, 12 U.S. (8 Cranch)
110 (1814).
14. See 1 Op. Att’y Gen. 26, 27 (1792) (opinion of Edmund Randolph); 1 Op. Att’y Gen. 57
(1795) (opinion of William Bradford); 1 Op. Att’y Gen. 68, 69 (1797) (opinion of Charles Lee).
15. See, e.g., Beth Stephens, The Law of Our Land: Customary International Law as Federal Law
after Erie, 66 FORDHAM L. REV. 393, 394 (1997) (noting this support and citing in a footnote major
advocates of the modern position).
16. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 111, 115
(1987) (stating that international law, including principles of CIL, is law of the United States, is
supreme over state law, and is enforceable in federal courts).
17. First Nat’l City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U.S. 611, 623
(1983) (“[A]s we have frequently reiterated, [international law] ‘is part of our law’ . . . .”); Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (“United States courts apply international law as a part of our own . . . .”); Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996) (“[I]t
has long been recognized that ‘[i]nternational law is part of our law’ . . . .”); Kadic v. Karadzic,
70 F.3d 232, 246 (2d Cir. 1995) (“Relying on the settled proposition that federal common law
incorporates international law . . . .”); In re Estate of Marcos, Human Rights Litigation (Trajano v.
Marcos), 978 F.2d 493, 502 (9th Cir. 1992) (“It is also well settled that the law of nations is part of
federal common law.”); Filártiga v. Peña-Irala, 630 F.2d 876, 885 (2d Cir. 1980) (holding that the
“the law of nations . . . has always been part of the federal common law”).
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together is the thought that CIL is supreme law for purposes of
Article VI,18 binding state actors and preempting inconsistent state
law.19 Another commonly held notion is the idea that the domestic
legal status of CIL affords statutory federal question jurisdiction in
federal courts.20 However, adherents of the modern position do not
generally endorse the view that all CIL is federal law for all purposes.
For example, there is substantial variance on the issue of whether CIL
supersedes federal statutes or treaties. The general consensus among
courts and commentators is that Congress can violate and trump CIL,
as federal common law, through affirmative legislation.21 As with
18. U.S. CONST. art. VI (“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of
the United States, shall be the supreme Law of the Land . . . .”).
19. See Vázquez, A Critique, supra note 12, at 1501 (opining that the supremacy of customary
international law over state law is the “heart of the modern position”). Other scholars have
challenged the validity of this supremacy argument. See, e.g., Michael D. Ramsey, International Law
as Part of our Law: A Constitutional Perspective, 29 PEPP. L. REV. 187, 195-96 (2001) (arguing that
international law is not ‘made in Pursuance’ of the Constitution and therefore is not preemptive
law). But see Vázquez, A Critique, supra note 12, at 1502 (noting that a concept of non-preemptive
federal law “would replicate one of the problems that most concerned the Founders—the lack of
federal judicial power to prevent or remedy violations of customary international law by the
States”); Harold Koh, Is International Law Really State Law?, 111 HARV. L. REV. 1824, 1827 (1998)
(observing that federal courts regularly incorporate CIL norms into federal law and arguing that a
non-preemptive revisionist concept “would oust a sensible, settled rule that all three federal
branches and the fifty states have consistently followed in favor of a muddled notion that offers
only an invitation to chaos”); Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of
International Law, 1994 SUP. CT. REV. 295, 303 (“When state and federal law conflict, it does not
matter . . . what sort of federal law is at issue; whether it is executive, legislative, or judicial. All
federal law trumps all state law. If international law enjoys that elevated status, it will also prevail.”);
cf. Louis Henkin, The President and International Law, 80 AM. J. INT’L L. 930, 933 n.11 (1986) (noting
an alternative reading that the “in Pursuance” language of Art. VI might signify that CIL may not
be inconsistent with, and is in fact subordinate to, the U.S. Constitution) [hereinafter Henkin,
The President].
20. Illinois v. Milwaukee, 406 U.S. 91, 100 (1972) (holding that 28 U.S.C. § 1331 jurisdiction
“will support claims founded upon federal common law as well as those of a statutory origin”).
Contra Ramsey, supra note 19, at 205 (noting that an interpretation of Article III to allow for
claims “arising under” international law as federal law would render other jurisdictional grants
superfluous).
21. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES)
§ 115(1)(a) (1987). There is no definitive authority on whether the converse is true—whether a
newly developed rule of CIL applies against inconsistent statutes and treaties. See id. § 115 cmt. d.
Some scholars assert that some CIL human rights norms enjoy the status of constitutional law and
therefore prevail over both prior and subsequent legislation. See, e.g., JORDAN J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 5-6 (1996).
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treaties,22 the last-in-time rule prevails for CIL, and courts will enforce
an act of Congress that is inconsistent with a prior norm of CIL.
Although never specifically held by the Supreme Court, the “controlling executive or legislative act” dictum in The Paquete Habana23 seems
to support this construction. Lower courts have upheld this construction.24 Notably, this dictum “has led to the recent assertion that not
only Congress but also the President and lesser executive officials
may disregard a treaty or a rule of international law.”25 In fact, the
Eleventh Circuit utilized this dictum in Garcia-Mir v. Meese to hold that
the decision of the Attorney General to detain undocumented aliens,
though violative of international law, was binding on courts.26 GarciaMir brings into focus the subject of this Note: whether members of the
executive branch, such as the Attorney General and his delegates, are
subject to the constraints of customary international law. This subject
will be explored in further detail in Parts III and V, infra.
B.
The Revisionist Position
While it is clear that an “uncompromising conception of the modern
position is a phantom,”27 revisionists nonetheless harbor a fundamental concern that customary international law—law made by a global
community “in a process to which the United States contributes only
in an uncertain way and to an indeterminate degree”28— has the force
of federal law. In general terms, advocates of the revisionist position
question the historical support for and substantive implications of
an uncodified CIL as a source of federal law.29 They challenge the
22. Whitney v. Robertson, 124 U.S. 190, 194 (1888).
23. 175 U.S. 677, 700 (1900).
24. See, e.g., Galo-Garcia v. INS, 86 F.3d 916, 918 (9th Cir. 1996); United States v. Yunis,
924 F.2d 1086, 1091 (D.C. Cir. 1991) (“Statutes inconsistent with principles of customary
international law may well lead to international law violations. But within the domestic legal realm,
that inconsistent statute simply modifies or supersedes customary international law to the extent
of the inconsistency.”) (quoting Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929,
938 (D.C. Cir. 1988)).
25. Henkin, Chinese Exclusion, supra note 2, at 864.
26. 788 F.2d 1446, 1453-54 (11th Cir. 1986).
27. Vázquez, A Critique, supra note 12, at 1501.
28. HENKIN, FOREIGN AFFAIRS, supra note 6, at 508 n.16.
29. See, e.g., Curtis A. Bradley and Jack L. Goldsmith, Current Illegitimacy of International Human
Rights Litigation, 66 FORDHAM L. REV. 319 (1997) [hereinafter Bradley, Current Illegitimacy]; cf.
A.M. Weisburd, State Courts, Federal Courts, and International Cases, 20 YALE J. INT’L L. 1 (1995);
Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV. 665 (1986)
(arguing that CIL should be treated as inferior to federal statutory law).
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legitimacy of such a conceptualization of CIL as running counter to
“well-accepted notions of American representative democracy, federal
common law, separation of powers, and federalism.”30 Moreover, they
reason, arguments in favor of CIL as domestic law cannot survive
post-Erie review, wherein a “federal court can no longer apply CIL in
the absence of some domestic authorization to do so, as it could under
the regime of general common law.”31 Authorization by federal political branches, such as incorporation through federal statutes, also has
the virtues of making CIL norms “clearer, more concrete, and more
democratic”32 than they are under the framework of the modern
position. The myriad arguments raised by revisionist scholarship are
beyond the scope of this Note, but it suffices to keep their general
precepts in mind. In adopting a limited conception of CIL as federal
common law within the vein of the modern position, this Note will
attempt to alleviate the attendant concerns of the revisionist camp
arising in the context of executive discretion.33
III.
ENFORCEABILITY OF CIL NORMS AGAINST THE EXECUTIVE BRANCH
Assuming that customary international law is federal law, it follows
that such norms fall under the meaning of “Laws” for the purpose of
Article II “take care” duties.34 The duty to ensure the faithful execution
of customary international law, however, is not characteristically recognized as an executive function. The question of whether the Executive
is bound by CIL norms, properly understood as federal common law,
merits careful examination.
A.
Scholarly Perspectives
Some commentators such as Professor Jordan Paust hold an unwaver-
30. Bradley, Customary International Law as Federal Common Law, supra note 11, at 821.
31. Id. at 853. Advocates of the modern position counter this notion with the reasoning of
Philip C. Jessup in, The Doctrine of Erie Railroad v. Tompkins Applied to International Law, 33 AM. J.
INT’L L. 740 (1939), penned the year after Erie. In this article, Jessup argued that Erie’s doctrine
could not extend to matters of international law, as the “several states of the Union are entities
unknown to international law. It would be as unsound as it would be unwise to make our state
courts our ultimate authority for pronouncing the rules of international law.” Id. at 743. Justice
Harlan invoked Jessup’s article with approval in Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
425 (1964). See generally Gerald L. Neuman, Sense and Nonsense about Customary International Law: A
Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371, 373-77 (1997).
32. Bradley, Customary International Law as Federal Common Law, supra note 11, at 871.
33. For the heart of this positional analysis, see infra Section V.C(1) and (2).
34. U.S. CONST. art. II, § 3 (“[H]e shall take Care that the Laws be faithfully executed . . . .”).
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ing view the “President must obey and faithfully execute supreme
federal law whether it is customary or treaty-based.”35 Under this view,
courts should enjoin the President from acting in violation of international law, because (i) the act is ultra vires or without authority and
(ii) the act violates his constitutional duty to ensure the faithful
execution of international law.36 Paust criticizes as erroneous the
reading of The Paquete Habana’s “controlling . . . act” language to
mean that international law prevails only where there is no controlling
public act from a governmental entity, emphasizing that such an
interpretation contravenes the long tradition of judicial incorporation
of custom both before and after 1900.37 Other constitutional powers
notwithstanding, Paust holds, the President and members of the executive branch are bound by identifiable norms of customary international
law.38
Other commentators take a more measured approach to the question of whether CIL binds the President under the “take care” clause,
claiming some variation or exception to the rule of faithful execution.
Professor Michael Glennon, for example, adopts a tripartite framework to evaluate the propriety of presidential action in disregarding or
violating customary international law.39 Among many insights, Glennon’s analysis provides that the President has no plenary authority to
violate CIL, as Congress exclusively retains the right to define and
punish offenses against the laws of nations,40 and the President acts
unconstitutionally when he contravenes certain norms in the face of
congressional silence.41 Ultimately, Glennon concludes that “federal
common law invalidates presidential acts in violation of international
35. Jordan J. Paust, The President Is Bound by International Law, 81 AM. J. INT’L. L. 377, 378
(1987).
36. Id. at 387.
37. Id. at 384-87. Professor Paust observes that The Paquete Habana answers neither the
question of which governmental acts are “controlling” nor whether “any such acts are ‘controlling’
in the face of identifiable norms of customary international law.” Id. at 385.
38. See also Michael J. Glennon, Can the President Do No Wrong?, 80 AM. J. INT’L L. 923, 927
(1986) (“The central point, however, is that the Chief Executive cannot give what he does not
have: no one in the executive branch has the authority to breach customary international law in the
absence of congressional authorization.”).
39. Michael J. Glennon, Raising The Paquete Habana: Is Violation of Customary International Law
by the Executive Unconstitutional?, 80 NW. U. L. REV. 321, 325 (1985) [hereinafter Glennon, Raising
The Paquete Habana]. This framework largely reflects the constitutional analysis set forth by
Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579, 635-38
(1952) (Jackson, J., concurring).
40. U.S. CONST. art. I, § 8, cl. 10.
41. Glennon, Raising The Paquete Habana, supra note 39, at 325.
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law until Congress, by statute, supersedes the federal common law
rule.”42
Professor Louis Henkin takes a divergent approach, reasoning
that the President may lawfully act in derogation of a principle of
international law when exercising his constitutional authority in foreign
affairs, even in the absence of congressional concurrence.43 In
relation to the infamously ambiguous “controlling executive . . . act”
language of The Paquete Habana, Henkin asserts, “[p]erhaps, an act
within the President’s constitutional authority as sole organ or as
commander-in-chief is controlling and will not be enjoined even
if it violates a treaty or principle of law. I know of no other kind of
acts that would relieve the Executive of the duty to take care that
international law be faithfully executed.”44 Henkin has indicated in
other works that certain human rights principles might bind the
President because they are primarily for the benefit of individuals and
do not trigger the exercise of his constitutional foreign relations
authority.45
Although the “Glennon framework” (emphasizing congressional
authorization) and the “Henkin framework” (emphasizing the exercise
of independent executive foreign affairs powers) draw divergent conclusions about when the President can and cannot supersede CIL principles,
their proponents share the sentiment that a different constitutional
analysis might apply against lower level executive officials.46 In essence,
both conclude that CIL constrains the actions of such officials. This
secondary analysis is the principal concern of the present Note, explored in Section V.C(2), infra.
42. Id.
43. Henkin, The President, supra note 19, at 934-37.
44. Id. at 930, 936; see also Henkin, Chinese Exclusion, supra note 2, at 878-85.
45. Louis Henkin, International Law as Law in the United States, 82 MICH. L. REV. 1555,
1569 n.44 (1984). Professor Glennon has challenged this distinction between CIL norms, arguing
that the President’s plenary foreign affairs powers do not justify a unilateral violation of customary
international law irrespective of the content of the norm. Without congressional authorization, the
Executive branch can violate no CIL norm. Glennon, Raising The Paquete Habana, supra note 39,
at 355-56; cf. Paust, supra note 35, at 384-85.
46. See Glennon, Raising The Paquete Habana, supra note 39, at 356-58 (analyzing the interplay
between the President and lower-level executive officials in the violation of CIL under four
different scenarios); HENKIN, FOREIGN AFFAIRS, supra note 6, at 243-44 (“The courts ought not
tolerate, and should give relief, when members of the Executive bureaucracy simply refuse or fail
to give effect to principles of customary law as law of the United States . . . .”).
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B. A Framework of Enforceability: Which Norms Apply and Against Whom
In proposing a framework to evaluate when federal courts can and
should enforce CIL norms against the executive branch, two fundamental questions arise: (1) which norms apply in the exercise of courts’
common law authority, and (2) against whom do such norms apply.
The answers to these questions might assuage, albeit not eliminate, the
manifest unease of revisionists towards the modern position. The
narrow framework ultimately proposed in this Note envisions: (1) an
extant, specific norm of CIL; (2) a statute modifying that norm and
prevailing to the extent of the inconsistency; and (3) where consistent,
the norm prevails as the status quo, limiting the discretionary authority
of federal officials. Thus, the framework removes many of the separation of powers and federalism concerns shared by revisionists with
respect to the operation of international law in the domestic legal
system.
1.
Which Norms
Customary international law “results from a general and consistent
practice of states followed by them from a sense of legal obligation.”47
The general notion of “state consent”48 embodied in this definition
means that a norm does not become binding domestic law if (1) the
United States has rejected it during formation49 or (2) that norm does
not conform “with the one overriding prerequisite developed by the
courts of this country in the course of applying international law
domestically—the requirement that the norm in question be widely
accepted and clearly defined.”50 The enforceability prerequisites of
consensus and specificity, highlighted most recently by the Supreme
Court in Sosa v. Alvarez-Machain,51 are satisfied most easily by peremp-
47. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2)
(1987).
48. Early judicial expression conceived CIL as the “common consent of mankind.” The
Scotia, 81 U.S. (14 Wall.) 170, 187-88 (1871); see also The Prize Cases, 67 U.S. (2 Black) 635, 670
(1863) (“founded on the common consent as well as the common sense of the world”).
49. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. d
(1987).
50. Glennon, Raising The Paquete Habana, supra note 39, at 354.
51. Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25 (2004). The Sosa Court opined on the
application of the “laws of nations” as used in the Alien Tort Statute (ATS). Because the Sosa
standard imposes a strict standard for enforceability, this Note defaults to this heightened
standard in arguing for the enforceability of the CIL norm prohibiting prolonged arbitrary
detention.
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tory norms recognized by the international community,52 such as
genocide, war crimes, slavery, torture, and piracy. The extent to which
other norms qualify for enforceability invites friction, as revisionists
mount concerns over the “new CIL” (primarily concerning human
rights) entering into the force of domestic law without direct incorporation by political bodies.53 However, judicial common lawmaking
discretion is constrained by the necessity to discern administrable rules
of decision from the body of customary international law. Administrability, in this sense, means satisfying the enforceability prerequisites of
consensus and specificity. This Note argues, within Section V.A, infra,
that the prohibition against prolonged arbitrary detention is one such
administrable norm within the CIL corpus.
2.
Against Whom
As a fully administrable CIL norm forming part of the federal
common law, the principle prohibiting prolonged arbitrary detention
applies against the political branches in the absence of superseding
positive law.54 Where Congress has made known its latest policy through
positive law, the legislative will prevails over customary international
law.55 Where, however, a federal statute delegates responsibility to the
executive branch and remains silent on an extant, fully applicable,
specific CIL norm, this Note argues that members of the executive
branch are bound to “take care” of that norm. As explored above, some
commentators believe that the President has the prerogative to disregard such norms under certain circumstances.56 Others extend this
prerogative to cabinet-level executive officials.57 Reserving opinion on
52. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102
cmt. k (1987).
53. Bradley, Customary International Law as Federal Common Law, supra note 11, at 839.
54. Cf. Harry A. Blackmun, The Supreme Court and the Law of Nations, 104 YALE L.J. 39, 40
(1994) (“Although commentators continue to debate the extent of executive, legislative, or
judicial power to trump customary international law, the import of The Paquete Habana is clear:
Customary international law informs the construction of domestic law, and, at least in the absence
of any superseding positive law, is controlling.”).
55. See Tag v. Roberts, 267 F.2d 664, 668 (D.C. Cir. 1959); The Over the Top, 5 F.2d 838, 842
(D. Conn. 1925).
56. In addition to Henkin, The President, supra note 19, at 934-37, see Jonathan I. Charney,
The Power of the Executive Branch of the United States Government to Violate Customary International Law,
80 AM. J. INT’L L. 913, 921 (1986).
57. See generally Auth. of the Fed. Bureau of Investigation to Override Int’l Law in Extraterritorial Law Enforcement Activities, 13 OP. O.L.C. 163, 163-64 (1989) [hereinafter Barr Opinion].
Courts have split on this issue. Compare Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir. 1986)
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this issue until Section V.C(2), infra, it remains to be seen whether
decisions of lower-level executive officials are “controlling executive
acts” within the meaning of The Paquete Habana.58 Ultimately, this Note
will argue that administrable norms of customary international law
apply against and limit the discretion of lower-level federal officials
acting within a statutory directive.
III.
IMMIGRATION DETENTION: ALLOCATED RESPONSIBILITIES AND
HARSH REALITIES
Before fleshing out the application of CIL norms against federal
officials within the context of immigration detention, it is beneficial to
explore the governing statutory framework and the realities of this
practice. This Note seeks to add to the vast literature relating to
immigrant detainees’ procedural and substantive rights59 by delineating the relevant circumstances, likely non-exclusive, under which its
immigration enforcement officials are required to heed norms of
customary international law.
A.
The Illegal Immigration Reform and Immigrant Responsibility
Act of 1996
The 1996 Illegal Immigration Reform and Immigrant Responsibility
Act (IIRIRA)60 brought massive changes, both substantive and procedural, to the field of immigration law. Since its enactment, the
Supreme Court has heard numerous cases concerning its validity,
scope, and application.61 In relevant part, the IIRIRA largely reflects a
(upholding prerogative of Attorney General to violate CIL norm prohibiting indefinite detention), with Fernandez v. Wilkinson, 505 F. Supp. 787 (D. Kan. 1980) (finding abuse of discretion
on part of Attorney General to violate CIL norm prohibiting arbitrary detention), aff’d on other
grounds, 654 F.2d 1382 (10th Cir. 1981).
58. As Gerald Neuman highlights in Sense and Nonsense, supra note 31, at 382 n.59, “[e]ven
the controversial Barr opinion on extraterritorial abductions . . . expresses doubt that a violation
of customary international law could be authorized by an official below cabinet rank.” See Barr
Opinion, supra note 57, at 180. The bases for the distinction between cabinet-level and lower-level
executive officials are discussed infra Section IV.C(ii).
59. For a general discussion of immigration detention within the U.S. regulatory system, see,
e.g., Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal
Justice Norms, 64 WASH. & LEE L. REV. 469 (2009); David Cole, In Aid of Removal: Due Process Limits on
Immigration Detention, 51 EMORY L.J. 1003 (2002).
60. Pub. L. No. 104-208, 110 Stat. 3009, 3009-546 to 3009-724 (1996).
61. See generally Daniel A. Klein, Validity, Construction, and Application of Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA)—Supreme Court Cases, 53 A.L.R. FED. 2d 117 (2011).
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congressional attempt to limit both judicial review and administrative
discretion within the alien removal regime in order to streamline
enforcement processes.62 Most visibly, Congress removed § 212(c) of
the Immigration and Nationality Act (INA) of 1952,63 which allowed
for discretionary waivers of deportation by immigration judges, and
replaced it with a stringent “cancellation of removal” provision,64 which
permits only the Attorney General to cancel the removal of certain,
long-term permanent residents who meet restrictive statutory qualifications. Moreover, Congress made this “cancellation of removal” provision, and other forms of discretionary relief, unavailable to non-citizens
convicted of an aggravated felony.65 In conjunction with this, it is
pertinent to note that “[i]n addition to lengthening the list of immigration-related criminal offenses, Congress expanded the number of
criminal convictions that trigger deportation and other adverse immigration consequences.”66 By expanding the definition of “aggravated
felonies” to include those crimes whose maximum possible sentence is
at least one year imprisonment, regardless of the actual sentence
imposed or served,67 Congress has effectively barred discretionary
relief for a number of persons perhaps deserving of leniency. Additionally, such persons are subject, without bond eligibility, to mandatory
§ 1226(c) detention while awaiting deportation proceedings,68 as are
non-citizens deportable for criminal convictions involving moral turpitude, and inadmissible aliens.
The “mandatory detention” scheme embodied in 8 U.S.C. § 1226(c)
is just one of several detention schemes envisioned by the IIRIRA.
First, immigration officers are empowered under 8 U.S.C. § 1225(b) to
remove immediately persons who arrive without proper documentation, unless he or she “indicates either an intention to apply for
asylum . . . or a fear of persecution.”69 Within this “expedited removal”
scheme, officers are required to hold such persons in a detention
62. See generally Patricia Flynn & Judith Patterson, Five Years Later: Fifth Circuit Case Law
Developments Under the Illegal Immigration Reform and Immigrant Responsibility Act, 53 BAYLOR L. REV.
557, 560-61 (2001).
63. 8 U.S.C. § 1182(c) (1994) (repealed 1996).
64. 8 U.S.C. § 1229b(a) (2006).
65. 8 U.S.C. § 1229b(a)(3) (2006).
66. Barbara A. Frey & X. Kevin Zhao, The Criminalization of Immigration and the International
Norm of Non-Discrimination: Deportation and Detention in U.S. Immigration Law, 29 LAW & INEQ. 279,
282 (2011).
67. 8 U.S.C. § 1101(a)(43) (2006).
68. 8 U.S.C. § 1226(c) (2006).
69. 8 U.S.C. § 1225(b)(1)(A)(i) (2006).
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facility pending a “credible fear interview”70 and wherein they must
remain until granted discretionary parole.71 Such persons are mandatorily detained until removal if found not to have a credible fear of
persecution.72 The detention of asylum seekers has been the subject of
heated criticism,73 one that is largely outside the scope of the present
Note.
Second, detention under 8 U.S.C. § 1231 is mandatory for ninety
days following a final deportation order while awaiting removal.74
Removal is impossible in certain circumstances, either because the
country of origin refuses to take the alien back or the alien is stateless
and has no right to return to any country.75 If removal does not occur
within the specified timeframe, the Attorney General has discretion
under § 1231(a)(3) to release the person under supervision,76 and the
Attorney General may detain inadmissible or criminal aliens “beyond
the removal period.”77 The Supreme Court in Zadvydas v. Davis construed 8 U.S.C. § 1231(a)(6) to “contain an implicit ‘reasonable time’
limitation” out of constitutional concern over the indefinite detention
of criminal aliens.78 A few years later, the Court extended this reasoning to apply to the detention of inadmissible aliens under § 1231(a)(6).79
Third, as mentioned above, 8 U.S.C. § 1226 authorizes the detention of non-citizens pending deportation proceedings. Specifically,
§ 1226(a) provides that “an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United
States.”80 Enforcement officials have the discretion to release such
persons on bond or parole,81 but this discretion is rarely exercised.82
Section 1226(c) mandates detention for inadmissible and criminal
70. 8 C.F.R. § 208.30 (2010). For more information on the credible fear interview, see
generally Bo Cooper, Procedures for Expedited Removal and Asylum Screening under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 29 CONN. L. REV. 1501 (1997).
71. 8 U.S.C. § 1225(b)(1)(B)(ii) (2006).
72. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV) (2006).
73. See, e.g., Michele R. Pistone, Justice Delayed is Justice Denied: A Proposal for Ending the
Unnecessary Detention of Asylum Seekers, 12 HARV. HUM. RTS. J. 197 (1999).
74. 8 U.S.C. § 1231(a)(2) (2006) (“During the removal period, the Attorney General shall
detain the alien.”).
75. See Cole, supra note 59, at 1017.
76. 8 U.S.C. § 1231(a)(3).
77. Id. § 1231(a)(6).
78. Zadvydas v. Davis, 533 U.S. 678, 682 (2001).
79. Clark v. Martinez, 543 U.S. 371, 386 (2005).
80. 8 U.S.C. § 1226(a) (2006).
81. Id.
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aliens pending deportation proceedings, the constitutionality of which
was upheld by the Supreme Court in Demore v. Kim.83 Persons subject to
§ 1226(c) mandatory detention are not qualified for bond eligibility
unless he or she wishes to challenge her classification falling under
§ 1226(c) through a “Joseph hearing,” wherein he or she bears the
burden, without guaranteed counsel, to prove that the agency is
“substantially unlikely to establish at the merits hearing . . . the charge
or charges that . . . subject the alien to mandatory detention.”84 At least
one judge has called the Joseph standard “egregiously unconstitutional.”85
The Department of Homeland Security (DHS) and the Department
of Justice (DOJ) are largely responsible for the implementation of the
immigration laws. Under the Department of Homeland Security, three
subdivisions have considerable prosecutorial discretion with respect to
immigration enforcement: Immigration and Customs Enforcement
(ICE), United States Citizenship and Immigration Services (USCIS),
and Customs and Border Protection (CBP). After DHS files removal
charges against a non-citizen, the DOJ assumes jurisdiction within its
Executive Office for Immigration Review (EOIR), which is home to the
Immigration Court and the Board of Immigration Appeals (BIA).86
B.
The Realities of Immigration Detention
Currently, ICE oversees the largest detention system in the country.87
In 2011, ICE detained an all-time high of 429,247 aliens, reflecting an
18% increase from 2010.88 This translates into more than 30,000
82. See Frey & Zhao, supra note 66, at 304-05 (noting that in fiscal year 2010, “ICE projected it
would detain 400,000 people compared to approximately 23,000 who were offered alternatives to
detention”).
83. 538 U.S. 510, 510 (2003).
84. In re Joseph, 22 I. & N. Dec. 799, 806 (BIA 1999). If the non-citizen fails to make her case,
no individual determination of flight risk or dangerousness is permitted. Id. at 802.
85. Tijani v. Willis, 430 F.3d 1241, 1246 (9th Cir. 2005) (Tashima, J., concurring).
86. See generally SHOBA SIVAPRASAD WADHIA, PROSECUTORIAL DISCRETION IN IMMIGRATION AGENCIES:
A YEAR IN REVIEW (2012), available at http://cliniclegal.org/sites/default/files/Shoba%20
Wadhia%20Prosecutorial%20Discretion%20in%20Immig.pdf.
87. SCHRIRO REPORT, supra note 8, at 2.
88. JOHN SIMANSKI & LESLEY M. SAPP, U.S. DEP’T OF HOMELAND SEC., OFFICE OF IMMIGRATION
STATISTICS, IMMIGRATION ENFORCEMENT ACTIONS: 2011, at 4 (2012), available at http://www.dhs.
gov/sites/default/files/publications/immigration-statistics/enforcement_ar_2011.pdf [hereinafter SIMANSKI REPORT].
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immigrants in civil detention each day.89 Of the 391,953 persons
removed in 2011, approximately 188,000 had a prior criminal conviction.90 The majority of detainees (about 67%) are held in some 350
state and county prisons pursuant to Intergovernmental Service Agreements, where they are mixed into the general prison population.91
Among those civilly incarcerated are “survivors of torture, asylum
seekers, victims of trafficking, families with small children, the elderly,
individuals with serious medical and mental health conditions, and
lawful permanent residents with longstanding family and community
ties who are facing deportation because of old or minor crimes.”92
These low-risk individuals suffer from inadequate medical care, misuse of solitary confinement, denial of access to legal service providers and family, mistreatment by guards, and discrimination against
sexual minorities.93 Despite enforcement priorities targeting high-risk
persons and a commitment to the implementation of Alternatives
to Detention (ATD) programs, ICE continues to use its resources
($1.77 billion in Fiscal Year 2010, compared to $69.9 million on ATD
programs)94 to detain persons unnecessarily and arbitrarily.95 In one
analysis of the 32,000 detainees in ICE custody on the night of January 25, 2009, the average length of detention pending deportation
proceedings was 81 days.96 Other sources highlight detainees spending
89. NAT’L IMMIGRATION FORUM, THE MATH OF IMMIGRATION DETENTION: RUNAWAY COSTS FOR
IMMIGRATION DETENTION DO NOT ADD UP TO SENSIBLE POLICIES 2 (2012), available at http://
www.immigrationforum.org/images/uploads/MathofImmigrationDetention.pdf (noting that DHS
requested from Congress about $2 billion in Fiscal Year 2013 funding to maintain a detention
capacity of 32,800 persons per night).
90. SIMANSKI REPORT, supra note 88, at 4-5.
91. See DONALD KERWIN & SERENA YI-YING LIN, MIGRATION POLICY INST., IMMIGRANT DETENTION:
CAN ICE MEET ITS LEGAL IMPERATIVES AND CASE MANAGEMENT RESPONSIBILITIES? 9 (2009), available at
http://www.migrationpolicy.org/pubs/detentionreportSept1009.pdf; About the U.S. Detention and
Deportation System, DETENTION WATCH NETWORK (2008), http://www.detentionwatchnetwork.org/
aboutdetention.
92. Immigration Detention, ACLU.ORG (2011), http://www.aclu.org/immigrants-rights/
detention.
93. See NAT’L IMMIGRANT JUSTICE CTR. ET AL., YEAR ONE REPORT CARD: HUMAN RIGHTS AND THE
OBAMA ADMINISTRATION’S IMMIGRATION DETENTION REFORMS 3 (Oct. 6, 2010) [hereinafter Report
Card], available at http://www.immigrantjustice.org /icereportcard. For a brief and disturbing
look at the inhumane treatment in some dentention facilities, see Anshu Budhrani, Regardless of My
Status, I Am a Human Being: Immigrant Detainees and Recourse to the Alien Tort Statute, 14 U. PA. J.
CONST. L. 781, 781-83 (2012).
94. Report Card, supra note 93, at 3.
95. See id. at 7.
96. Kerwin, supra note 91, at 1.
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years in civil detention without a hearing or individualized review.97
The current system of civil detention bears marked resemblance to
criminal incarceration, without the attendant protections afforded to
citizens within governmental custody. In Wong Wing v. United States,
the Supreme Court recognized the need for and distinction between
“temporary confinement, as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens”98 and
punitive incarceration. In a similar vein, the Fong Yue Ting v. United
States Court distinguished between banishment and punishment, holding that only the latter triggers constitutional due process protections.99 Courts have historically construed such language to deny
non-citizens those guarantees embodied in the Fourth, Fifth, Sixth,
and Eighth Amendments, with the exception of limited procedural due
process rights.100 During the last century of judicial deference towards
the plenary power of Congress to regulate immigration,101 the line
between a preventive civil system and a punitive criminal justice system
has become increasingly muddled, a fact recognized most recently by
the Court in Padilla v. Kentucky.102 As one commentator has acutely
observed, “[t]he immigrant facing a deportation hearing and the
criminal defendant awaiting trial have identical interests in not being
arbitrarily deprived of their liberty” while “the government has identi-
97. See No End in Sight—Detainee Profiles, ACLU.ORG (June 17, 2009), http://www.aclu.org/
immigrants-rights/no-end-sight-detainee-profiles.
98. 163 U.S. 228, 235 (1896).
99. 149 U.S. 698, 730 (1893).
100. See generally Aartie Kohlie, Does the Crime Fit the Punishment ?: Recent Judicial Actions
Expanding the Rights of Noncitizens, 2 CAL. L. REV. CIRCUIT 1, 7-8 (2011).
101. The plenary power doctrine refers to the plenary authority of the political branches to
regulate the exclusion and expulsion of aliens, as settled in the so-called Chinese Exclusion cases. See
Fong Yue Ting, 149 U.S. at 707 (“The right of a nation to expel or deport foreigners who have not
been naturalized, or taken any steps towards becoming citizens of the country . . . is as absolute
and unqualified, as the right to prohibit and prevent their entrance into the country.”); Chae
Chan Ping v. United States, 130 U.S. 581, 609 (1889) (“The power of exclusion of foreigners being
an incident of sovereignty belonging to the government of the United States as a part of those
sovereign powers delegated by the constitution, the right to its exercise at any time when, in the
judgment of the government, the interests of the country require it, cannot be granted away or
restrained on behalf of any one.”). For discussion of this doctrine’s aberrations over the last
century, see Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990). For a brief sketch of the evolution
of judicial scrutiny towards the doctrine, see Jessica Portmess, Until the Plenary Power Do Us Part:
Judicial Scrutiny of the Defense of Marriage Act In Immigration after Flores-Villar, 61 AM. U. L. REV. 1825,
1831-44 (2012).
102. 559 U.S. 356, 130 S. Ct. 1473, 1482 (2010) (recognizing deportation as “uniquely
difficult to classify”).
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cal interests in detaining the immigrant and the criminal defendant if
they pose a risk of flight or a danger to the community.”103 The trend
towards the criminalization of immigration is undeniably stark.
V.
IMMIGRATION AGENTS AND THE EXERCISE OF PROSECUTORIAL
DISCRETION
Given the striking similarity between civil detention and criminal
incarceration, the time is ripe to review the protections afforded to
immigrant detainees. While the Court went in two directions on the
issue of immigration detention in its decisions in Zadvydas and Demore,
sending the plenary power doctrine into a confused state of affairs,104
its use of a due process limitation invites the inquiry: are federal courts
signaling a discomfort with the current nature of immigration detention? Indeed, some lower courts declined to follow Demore v. Kim and
read a “reasonableness” requirement into the mandatory detention
scheme embodied in 8 U.S.C. § 1226(c).105 While due process might
provide one avenue of constitutional relief for immigrant detainees
facing prolonged detention in the absence of special justification, the
use of customary international law might provide another. This Note
argues that the CIL norm prohibiting prolonged arbitrary detention
protects immigrant detainees from unreasonable and capricious treatment by executive officers.
A.
Prolonged Arbitrary Detention Contrary to CIL
Customary international law recognizes a liberty principle to be
free from arbitrary and prolonged detention through comprehensive
human rights instruments, including Article 9 of the Universal Declaration of Human Rights106 and Article 7 of the American Conven-
103. David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97 CAL. L.
REV. 693, 719 (2009).
104. See generally Recent Case, Due Process—Immigration Detention—Third Circuit Holds that the
Illegal Immigration Reform and Immigration Responsibility Act of 1996 Authorizes Immigration Detention
only for a—“Reasonable Period of Time.”—DIOP v. ICE/Homeland Security, 656 F.3d 221 (3d Cir.
2011), 125 HARV. L. REV. 1522 (2012).
105. See Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011); Tijani v. Willis, 430
F.3d 1241 (9th Cir. 2005); Ly v. Hansen, 351 F.3d 263 (6th Cir. 2003). But see U.S. ex rel. Carapa v.
Curran, 297 F. 946, 959 (2d Cir. 1924) (recognizing no right to bail for non-citizen detainees
during immigration proceedings).
106. Universal Declaration of Human Rights art. 9, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/217(III) (Dec. 10, 1948) (“No one shall be subjected to arbitrary arrest, detention or
exile.”).
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tion.107 Article 9(1) of the International Covenant on Civil and Political
Rights (ICCPR) similarly promulgates the “right to liberty and security
of person. No one shall be subjected to arbitrary arrest or detention.”108 The Restatement likewise notes that a state violates international
law if it “practices, encourages, or condones” prolonged arbitrary
detention.109 Comment h of the Restatement clarifies further, “[d]etention is arbitrary if it is not pursuant to law; it may be arbitrary also if
‘it is incompatible with the principles of justice or with the dignity of
the human person.’”110 As such, detention is arbitrary “if the person
detained is not given early opportunity to communicate with family or
to consult counsel; or is not brought to trial within a reasonable
time.”111 The Human Rights Committee, the independent body of the
United Nations charged with reviewing complaints of ICCPR violations, has similarly reasoned that arbitrariness should be evaluated in
broader terms of injustice, meriting periodic and individualized review
to determine justifications for prolonged detention.112 U.S. immigration detention policies have been found infirm on these grounds.113
The failure of treaty ratification or the addition of reservations,
understandings, and declarations to these human rights treaties does
not vitiate the fundamental quality of certain norms embodied therein.
Notably, the United States ratified the ICCPR in 1992114 and expressed
no reservations or understandings related to the Article 9 “arbitrary
107. Organization of American States, American Convention on Human Rights art. 7,
Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123.
108. International Covenant on Civil and Political Rights art. 9(1), Dec. 16, 1966, 999
U.N.T.S. 171 (entered into force Mar. 23, 1976).
109. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702(e)
(1987).
110. Id. cmt. h (quoting Statement of U.S. Delegation, U.N. GAOR, 13th Sess., U.N.
Doc. A/C.3/SR.863, 13th Sess., at 137 (Oct. 27, 1958)).
111. Id.
112. See, e.g., Human Rights Comm., A v. Australia, para. 9.3-9.4, U.N. Doc. CCPR/C/59/D/
560/1993 (Apr. 3, 1997), available at http://daccess-dds-ny.un.org/doc/UNDOC/DER/G97/164/
90/IMG/G9716490.pdf?OpenElement.
113. See, e.g., Comm’n on Human Rights, Civil and Political Rights, Including Questions of
Torture and Detention: Opinions Adopted by the Working Group on Arbitrary Detention, U.N.
Doc. E/CN.4/2006/7/Add.1, para. 17 (May 27, 2005), available at http://daccess-dds-ny.un.org/
doc/UNDOC/GEN/G05/164/78/PDF/G0516478.pdf?OpenElement (finding that the U.S. government’s treatment of immigrant Mr. Ahmed Ali contravened the standards and principles set
forth in the ICCPR prohibiting arbitrary detention).
114. See S. Comm. on Foreign Relations, Rep. on the Int’l Covenant on Civil and Political
Rights, S. EXEC. REP. NO. 102-23, § IV (1992), reprinted in 31 I.L.M. 645 (1992) [hereinafter S. EXEC.
REP. NO. 102-23].
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detention” provisions of the Covenant.115 Nor did the United States,
during formation of the ICCPR, reject this norm because of vagueness
in the term “arbitrary,” as the United Kingdom did.116 In fact, the
meaning of arbitrariness utilized in the Restatement quotes the Statement of the U.S. Delegation to the United Nations—arbitrariness as
“incompatible with the principles of justice or with the dignity of the
human person.”117 Unlike with other norms,118 the United States
expressed no dissent from the development of this customary norm.
Admittedly, the 1992 Senate did impose a “non-self-execution” declaration to the ICCPR, signaling that the Covenant does not create a private
cause of action in domestic courts.119 The constitutionality of such a
declaration is beyond the scope of present arguments,120 but it suffices
to note that domestic courts have examined similar treaties and agreements to which the United States is a party as a source of discernible,
enforceable CIL principles.121 While few courts to date have upheld
arbitrary detention challenges on international law grounds, there is
precedent.122 This right to freedom applies to all persons, irrespective of
115. See id. § VI, at 651-52. The adopted reservations relate to free speech, capital punishment, inhumane treatment, criminal penalties, and juvenile adjudication. The adopted understandings relate to non-discrimination, right to compensation for miscarriage of justice, separate
treatment of the accused, right to counsel/compelled witnesses, double jeopardy, and federalism.
116. See Bridget Kessler, In Jail, No Notice, No Hearing . . . No Problem? A Closer Look at
Immigration Detention and the Due Process Standards of the International Covenant on Civil and Political
Rights, 24 AM. U. INT’L L. REV. 571, 580 n.41 (2009) (noting that the United Kingdom abstained
from vote on Article 9 due to the imprecision of the word “arbitrary”). Kessler also notes that the
prohibition against arbitrary detention contemplated by the ICCPR parties was broad, encompassing unlawful detentions as well “all those that are unjust, unpredictable, unreasonable, capricious,
and disproportional.” See id. at 580.
117. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702(e)
cmt. h (quoting Statement of U.S. Delegation, U.N. GAOR, 13th Sess., U.N. Doc. A/C.3/SR.863,
13th Sess., at 137 (Oct. 27, 1958)) (1987).
118. See Neuman, supra note 31, at 386 n.76 (noting, as examples of U.S. dissent, the norm
prohibiting execution for crimes committed as juveniles and the norm requiring regulation of
hate speech).
119. See S. EXEC. REP. NO. 102-23, supra note 114, § VI, at 652.
120. See, e.g., Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator
Bricker, 89 AM. J. INT’L L. 341, 346 (1995) (arguing that a non-self-execution declaration is
incompatible with the Supremacy Clause).
121. See Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004); Filártiga v. Peña-Irala, 630 F.2d
876, 882 (2d Cir.1980).
122. See, e.g., Xuncax v. Gramajo, 886 F. Supp. 162, 185 (D. Mass. 1995) (holding that
peremptory norms prohibit arbitrary detention); Fernandez-Roque v. Smith, 622 F. Supp. 887,
903 (N.D. Ga. 1985) (noting that, where applicable, customary international law requires
periodic, individualized hearings for alien detainees); Soroa-Gonzales v. Civiletti, 515 F. Supp.
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nationality, citizenship, or immigration status,123 and the U.S. legal system has long-recognized the place of a reasonable liberty principle
within governmental custody.124 By global consensus, prolonged arbitrary detention violates customary international law and is a norm
capable of ascertainment and administration by domestic courts.
B.
Current Executive Policies
The current administration has aligned itself with this CIL principle. Since 2009, the Obama administration has signaled a commitment towards reforming the civil immigrant detention system,
including expanding ATD programs and implementing oversight
mechanisms to promote the accountability of the responsible agencies.125 On March 2, 2011, ICE Director John Morton disseminated a
memorandum entitled “Civil Immigration Enforcement: Priorities for
the Apprehension, Detention, and Removal of Aliens” (Priorities
Memo), which clarified the enforcement policies of the ICE to target:
(1) aliens who pose a danger to national security or public safety,
(2) recent illegal entrants, and (3) fugitive aliens or those who otherwise obstruct immigration controls.126 With respect to detention, the
Priorities Memo specifies:
[a]bsent extraordinary circumstances or the requirements
of mandatory detention, field office directors should not expend detention resources on aliens who are known to be
1049, 1061 n.18 (N.D. Ga. 1981), reversed 734 F.2d 576 (11th Cir.1984) (issuing writ of habeas
corpus to alien facing indefinite detention on grounds of U.S. law but noting that “were the Court
forced to decide . . . the Court would conclude that petitioner’s further detention was arbitrary”
within the meaning of the Universal Declaration, the Covenant on Civil and Political Rights and
the American Convention on Human Rights); Fernandez v. Wilkinson, 505 F. Supp. 787, 798
(D. Kan. 1980) (“Our review of the sources from which customary international law is derived
clearly demonstrates that arbitrary detention is prohibited . . . . [E]ven though the indeterminate
detention of an excluded alien cannot be said to violate the United States Constitution or our
statutory laws, it is judicially remediable as a violation of international law.”).
123. See, e.g., Universal Declaration of Human Rights, supra note 106, art. 2.
124. See, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has
always been at the core of the liberty protected by the Due Process Clause from arbitrary
governmental action.”); see also Cole, supra note 59, at 1019.
125. See generally Report Card, supra note 93, at 2.
126. See Memorandum from John Morton, Director, U.S. Immigration & Customs Enforcement, to All ICE Employees, Policy No. 10072.1, FEA No. 601-14 (Mar. 2, 2011), available at
http://www.ice.gov/doclib /news/releases/2011/110302washingtondc.pdf [hereinafter “Priorities Memo”].
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suffering from serious physical or mental illness, or who are
disabled, elderly, pregnant, or nursing, or demonstrate that
they are primary caretakers of children or an infirm person, or
whose detention is otherwise not in the public interest.127
In a subsequent publication, Morton emphasized the equities that ICE
attorneys, officers, and agents should bear in mind while rendering
discretionary enforcement judgments, including while “deciding whom
to detain or to release on bond, supervision, personal recognizance, or
other condition.”128 These equities include many of the factors listed
above, with emphasis that “ICE [personnel] should always consider
prosecutorial discretion on a case-by-case basis. The decisions should
be based on the totality of the circumstances, with the goal of conforming to ICE’s enforcement priorities.”129 DHS Secretary Janet Napolitano has likewise advocated the use of discretion to ensure individualized determinations in conformity with immigration enforcement
priorities.130 Most recently, the implementation of the DREAM Act
via Executive Order, which provides a two-year deferral period from
deportation for young persons who pose no criminal or security
threat,131 manifests the current administrative focus on “national security, public safety, and border security.”132
C.
Enforceability of CIL against ICE Attorneys, Officials, and Agents
While the current policies of the Obama administration align with
the CIL principle prohibiting arbitrary detention, the sheer size of the
ICE civil detention regime, and the lack of an enforcement mecha-
127. Id. at 3. While helpful, the Priorities Memo also clarifies that such guidelines are “not
intended to, do not, and may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by any party in any administrative, civil, or criminal matter.” Id. at 4.
128. Memorandum from John Morton, Director, U.S. Immigration & Customs Enforcement,
to All Field Office Directors et al., Policy No. 10075.1, FEA No. 306-112-0026, at 2 (June 17, 2011),
available at http://www.ice.gov/ doclib/secure-communities/pdf/prosecutorial-discretionmemo.pdf.
129. Id. at 4.
130. See Letter from Janet Napolitano, Sec’y of Dep’t of Homeland Sec., to Senator Dick
Durbin (Aug. 18, 2011), available at http://durbin.senate.gov/public/index.cfm/files/serve?
File_id⫽1180a746-c6d4-4fe9-b11f-cf9be50b6226.
131. See Tom Cohen, CNN POLITICS, Obama Administration to Stop Deporting Some Young Illegal
Immigrants, CNN POLITICS (June 16, 2012, 1:17 PM), http://www.cnn.com/2012/06/15/politics/
immigration/index.html?hpt⫽hp_tl.
132. Priorities Memo, supra note 126, at 1.
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nism, makes practical implementation difficult.133 This Note posits
that, even in the absence of such positive signaling effects from
cabinet-level officers, as well as from the President himself, ICE officials, attorneys, and agents are bound to respect the fundamental
liberty of persons to be free from arbitrary detention. Arbitrariness, in
this sense, encompasses more than passive compliance with the domestic law. As seen above, such passive compliance with the IIRIRA leads to
somewhat perverse results.134 Non-arbitrariness requires, wherever possible within the statutory framework, the timely and individualized
balancing of equities against sound policy justifications for detention,
such as genuine risk of absconding or recidivism.
1.
Federal Courts Can Enforce CIL through Federal Common
Lawmaking Authority
In adopting a limited version of the modern position, this Note
argues that federal courts can and should enforce, in specific instances,
the extant CIL principle prohibiting arbitrary detention as the federal
common law of the United States. While the Erie decision eliminated
the concept of general federal common law,135 the constitutional
authority for federal common lawmaking, as indicated by the Court in
Texas Industries,136 has been upheld in two narrow instances: (1) where
a federal rule of decision is “necessary to protect uniquely federal
interests”137 and (2) where Congress has given the courts power to
develop substantive law.138 The Texas Industries Court elaborated on the
scope of the former category, classifying it as “concerned with the rights
and obligations of the United States . . . [where] the authority and
133. See generally Report Card, supra note 93, at 2 (observing a “lack of progress in the
implementation of the reform objectives on the ground as reports of human rights violations
continue”); Priorities Memo, supra note 127 (noting that, while useful, the Priorities Memo affords no individual remedy to immigrant detainees).
134. As noted by Justice Souter in his Demore v. Kim dissent, “Detention is not limited to
dangerous criminal aliens or those found likely to flee, but applies to all aliens claimed to be
deportable for criminal convictions, even where the underlying offenses are minor.” 538 U.S. 510,
558 (2003) (Souter, J., dissenting). See generally Legomsky, supra note 59, at 484-86 (surveying the
expansion of “aggravated felonies” qualifying for mandatory detention since 1988 and noting
that “an ‘aggravated felony’ need no longer be either aggravated or a felony”).
135. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (holding that there is no “federal
general common law”).
136. Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981).
137. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426 (1964).
138. See Wheeldin v. Wheeler, 373 U.S. 647, 651-52 (1963).
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duties of the United States as sovereign are intimately involved.”139 The
authority to pronounce rules of international law falls squarely within
this first category,140 as noted by the Sabbatino Court.141
The fact that “modern” international law is less tied to state practice,
can develop rapidly, and increasingly purports to regulate a state’s
treatment of its own citizens142 does not disqualify it from protection as a “uniquely federal interest.” As Harold Koh asserts, there is
nothing “‘modern,’ unconstitutional or undemocratic about the way
that human rights norms—in contrast to any other norms of customary
international law— have entered American law. It was largely through
American political leadership that human rights norms first entered
the discourse of international law, and through American courts that
many of those norms have been substantially advanced.”143 The international law of human rights imposes on the United States obligations
towards both individuals and states; a nation’s violation of “these
norms is as likely to produce international friction—and thus to
complicate the nation’s pursuit of foreign relations goals—as its
violation of other norms of customary international law.”144 Scholar
T. Alexander Aleinikoff, in arguing for a conception of CIL as neither
federal nor state law but rather as a tertium quid,145 qualifies as a
“category mistake . . . to see all CIL as foreign affairs law (and therefore as a branch of federal common law) . . . CIL and federal common law cases involving foreign affairs are overlapping, not congruent,
categories.”146 While this may be the case, Aleinikoff does not develop
a workable theory as to which norms qualify as foreign affairs law,
which he argues are binding on state courts,147 and which are CIL
enjoying this alternate, non-preemptive, tertiary status.148 The institu-
139. 451 U.S. at 641.
140. See supra text accompanying notes 19, 31.
141. 376 U.S. at 425-26.
142. Cf. Bradley, Customary International Law as Federal Common Law, supra note 11, at 842.
143. Koh, supra note 19, at 1859-60.
144. Vázquez, A Critique, supra note 12, at 1624.
145. T. Alexander Aleinikoff, International Law, Sovereignty, and American Constitutionalism:
Reflections on the Customary International Law Debate, 98 AM. J. INT’L L. 91, 97 (2004). Dean Aleinikoff
contemplates CIL as non-preemptive, non-federal law—a source of substantive law in appropriate
cases where international law principles apply. Id. at 97-98.
146. Id. at 100.
147. See id.
148. Professor Vázquez questions Aleinikoff’s “intermediate” position along these lines in
A Critique, supra note 12, at 1596, and reiterates that, with respect to not all CIL being federal
common law, “defenders of the modern position do not contend otherwise.” Id.
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tional capacity of federal courts to clarify and enforce CIL norms
is necessary to maintain the unity of federal law in terms of international obligations.
Federal concerns aside, the incorporation of qualified norms without direct authorization from the democratic branches does not run
afoul of the separation of powers framework. The allocated authority of
Congress to “define and punish . . . Offenses against the Law of
Nations”149 has never been exclusive; since the Founding era, federal
courts have independently construed the Law of Nations.150 The
codification of human rights norms into federal statutes does not
indicate a legislative resistance to the “open-ended” approach151 of
judicial incorporation, but rather suggests a desire to complement and
endorse a longstanding and legitimate practice.152 Further, there is
nothing “undemocratic” about the judicial pronouncement of norms
to which U.S. political bodies have consented and developed, and
which they may modify. As Harold Koh notes, “federal common law
rules of customary international law are perennially subject to a democratic check: supervision, revision, and endorsement by the federal
political branches.”153 All branches of the federal government participate in the development of customary international law. Whether the
attachment of a particular reservation, understanding or declaration
(RUD) to a relevant treaty or agreement is itself sufficient indication by
political branches that a norm is not ripe for incorporation is open to
debate,154 but that debate is largely inapplicable here.155 As an administrable norm of CIL meeting the requirements of consensus and specificity and implicating federal interests, the prohibition against arbitrary
detention falls uniquely within the province of federal courts.
149. U.S. CONST. art. I, § 8, cl. 10.
150. See Koh, supra note 19, at 1825-26.
151. Bradley, Current Illegitimacy, supra note 29, at 366.
152. See Koh, supra note 19, at 1843-45 (noting that, with respect to the Torture Victim
Protection Act, Congress explicitly acknowledged the expertise of federal courts in the CIL realm,
and explicitly intended not to supplant judicial interpretation but rather to codify and extend the
holding in Filartiga).
153. Id. at 1855.
154. Professor Neuman contemplates this question and ultimately leaves it unresolved.
Neuman, supra note 31, at 387.
155. As noted supra note 119, the only relevant attachment to ICCPR art. 9 is a non-selfexecution declaration, which has not previously precluded judicial recognition of CIL norms. See
cases cited supra note 121.
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2.
Enforceability in the Absence of “Controlling Executive or
Legislative Act”
This conception of judicial common lawmaking is not unqualified vis-à-vis the political branches. As illustrated throughout, the
jurisprudential parity of CIL, federal statutes, and international
agreements contemplates the prerogative of the political branches to
supersede, override, violate, or preclude enforcement of an otherwiseadministrable CIL principle. Although revisionists may express concern that the last-in-time rule cannot meaningfully apply to everevolving CIL principles,156 this concern seems greatly overstated when
considered in context. First, federal courts can only give effect to
specific, determinate, administrable norms of CIL—norms likely
shaped by input from political branches. Second, if a norm thus
qualifies as extant, a legislative enactment or executive directive that
has the primary or secondary effect of vitiating its applicability will
render it void in that context. As lower courts have held, an inconsistent statute “simply modifies or supersedes customary international
law to the extent of the inconsistency.”157 The import of The Paquete Habana
as to a “controlling executive or legislative act” informs such an
interpretation.
a. No “Controlling Legislative Act”
In the context of immigration detention, the 1996 IIRIRA is not a
“controlling legislative act” with respect to the specific instances where
it fails to stipulate detention procedures. As illustrated above in Section
IV.A, the IIRIRA framework affords some detention discretion to
executive officials, most clearly under statutory provision § 1226(a).
The fact that executive bureaucrats rarely exercise such options158
indicates a need to squarely address the enforceability of CIL as a check
on executive discretion. Where the IIRIRA, as a reflection of legislative
will, remains silent on the issue of the length and necessity of deten-
156. See John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 STAN.
L. REV. 1175, 1188 n.56 (2007) (noting the concern that “due to the nature of customary
international law, it is constantly being refreshed, meaning it will always be last in time and will
thus supersede even newly enacted inconsistent federal statutes”).
157. Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929, 938 (D.C. Cir. 1988)
(emphasis added).
158. See Report Card, supra note 93, at 7 (highlighting that ICE annually detains about
400,000 persons, many of whom pose no security risk, while it sent only 23,000 immigrants
through ATD programs in Fiscal Year 2010).
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tion, there is insufficient articulation of congressional authorization to
permit derogation from this extant principle by executive officials.159
Notably, this conception does not mean that, in a broad, fieldpreemptive statutory scheme, all customary international law is incorporated in all relevant scenarios unless specifically exempted by Congress.
A more apt, narrower interpretation urged by this Note envisions:
(1) an extant, qualified norm; (2) a statute modifying that norm and
prevailing to the extent of the inconsistency; and (3) where consistent, the
extant norm prevails as the status quo. This is, in effect, nothing more
than an application of the Charming Betsy canon.160 The Chevron doctrine161 still allows the Executive, acting within such a broad statutory
grant, to formulate policy and, in qualified situations, to override
customary international law.162 Indeed, it does not offend democratic
convictions to allow a fundamental human right to govern as a default
rule where there has been no indication of preference by a political
arm. Even within the “mandatory detention” schemes embodied in
§ 1226(c) and § 1231(a)(6) of the IIRIRA, federal courts have found a
reasonableness (due process) requirement akin to a non-arbitrariness
notion, recognizing the fundamental right of an alien to be free.163
However, for the purpose of maintaining the integrity of argument
with respect to a “controlling legislative act,” this Note limits its
enforceability analysis to the wholly discretionary § 1226(a).164
159. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 115
cmt. a (1987) (“The courts do not favor a repudiation of an international obligation by
implication and require clear indication that Congress, in enacting legislation, intended to
supersede the earlier agreement or other international obligation.”). Even the Garcia-Mir v. Meese
decision found, within a broad statutory scheme, “no affirmative legislative grant to the Justice
Department to detain the Second Group without hearings because 8 U.S.C.A. § 1227(c) does not
expressly authorize indefinite detention. Thus we must look for a controlling executive act.” 788 F.2d
1446, 1454 (11th Cir. 1986) (emphasis added) (citation omitted).
160. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of
Congress ought never to be construed to violate the law of nations if any other possible
construction remains . . . .”).
161. See Chevron, U.S.A. v. Natural Res. Def. Council, 467 U.S. 837, 843 (1984).
162. See discussion infra notes 164-173. For a fulsome discussion of the uneasy relation
between the Charming Betsy canon and Chevron deference, see generally Curtis A. Bradley, Chevron
Deference and Foreign Affairs, 86 VA. L. REV. 649 (2000) [hereinafter Bradley, Chevron Deference].
163. See supra notes 78, 79, 105.
164. Under the “Glennon framework” advanced in Section II.A, the constitutional analysis
would likely end here. Because the framework ultimately depends on the presence or absence of
congressional authorization, the identity of the “executive actor” does not matter. Glennon,
Raising The Paquete Habana, supra note 39, at 358. From this perspective, extant CIL norms govern
as federal common law in the face of congressional silence. Id. at 325.
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b.
No “Controlling Executive Act”
Moreover, because there is no “controlling executive act” within the
current regime, CIL limits the statutory authority of ICE officials to
detain certain classes of immigrants without individualized review. A
“controlling executive act,” as conceived here, would require a directive from the President himself, either an executive order or executive
agreement, which affects legal rights and impinges upon the application of an extant CIL norm.165 In limited circumstances, this conception recognizes the prerogative of a President to derogate from CIL
principles in the exercise of his foreign affairs powers.166 However,
because the underlying rationale of this theory is the unique position of
the President to weigh the costs and benefits of disregarding international obligations in light of overriding interests, the prerogative
belongs only to him outside of the legislative branch. This conception
assuages the revisionist concern that “the President needs flexibility in
representing the United States on the international plane.”167
It is, in fact, this unique position of the President on the international plane that creates the constitutional distinction between the
Oval Office and lower-level executive agents with respect to this prerogative. On the one hand, “[t]he President sits at the intersection of
the domestic and international responsibilities of the United States.
Other officers, such as the Attorney General, the Secretary of State and
the Secretary of the Navy, do not have the same combination of
domestic and international responsibilities that would permit them to
authorize U.S. violations of international and domestic law.”168 On the
other hand, as the 1989 Barr Opinion from the Office of Legal
Counsel169 argues, in addressing the legality of extraterritorial abductions by the FBI, “[B]road statutory grants of Executive authority must
be interpreted in light of the political branches’ inherent power to
override international norms . . . in view of the President’s authority to
override customary international law, it must be presumed that Congress granted the FBI commensurate statutory authority.”170 Addition-
165. This conception of a “controlling executive act” largely adopts the reasoning of the
“Henkin framework” advanced in Section II.A. See generally Henkin, Chinese Exclusion, supra note 2,
at 879-83.
166. For the definition of “foreign affairs powers” see supra note 3.
167. Bradley, Current Illegitimacy, supra note 29, at 352.
168. Charney, supra note 56, at 921-22.
169. See Barr Opinion, supra note 57.
170. Id. at 175. Notably, in relying upon the Garcia-Mir v. Meese decision, the Barr Opinion
points out that broad statutory authorization itself, absent specific congressional intention, is
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ally, independent of statutory grant, the President, “pursuant to his inherent constitutional authority, can authorize enforcement
actions . . . Executive agents, when appropriately directed pursuant to
the President’s constitutional law enforcement authority, may lawfully
carry on investigations and make arrests that contravene customary
international law.”171 However, the Barr Opinion specifically relies on
the “theory that the Executive has the constitutional authority to make
political decisions affecting our international relations. To the extent
that such decisions are made by officials below cabinet rank . . . the
factual basis for this theory may be weaker.”172
Accepting the Barr Opinion’s vision, although the President may
delegate the authority to issue a qualified directive to the cabinet-level
heads of DHS and DOJ, as purely executive agencies, Chevron interpretive deference does not apply to the everyday, discretionary judgments made by ICE attorneys, officials, and agents in the face of a
Charming Betsy presumption.173 Immigration enforcement officials are
not entitled to disregard customary international law, and to violate an
international obligation, in the exercise of bureaucratic discretion.
Moreover, the capability of the President or his immediate delegate to
authorize such behavior in the first place, in the absence of specific
legislative grant, depends upon the exercise of foreign affairs powers;
arguably, the context of day-to-day immigration detention does not
genuinely implicate the exercise of the President’s independent constitutional authority as treaty-maker, sole organ, or commander-inchief.174 The justification of administrative convenience is likewise
unpersuasive. In reproving the misguided reasoning in Garcia-Mir v.
Meese, which held that the Attorney General had power to “disregard
international law in service of domestic needs,”175 Professor Henkin
states, “The President cannot disregard international law ‘in service of
insufficient to override the application of international law. Id. at 174-75. There must be either
(1) specific legislative intent or (2) a controlling executive act. See also supra text accompanying
note 159. The Barr Opinion largely focuses, then, on what constitutes a “controlling executive
act.”
171. Id. at 177-78.
172. Id. at 180.
173. See Bradley, Chevron Deference, supra note 162, at 694-95.
174. This analysis largely echoes Henkin’s general reasoning explored in Section III.A, supra.
Notably, this norm might be the type of human-rights principle contemplated by Henkin in supra
note 45— one that, by its very nature, binds the President because it does not trigger the exercise
of foreign relations authority.
175. 788 F.2d 1446, 1455 (11th Cir. 1986).
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domestic needs’ any more than he can disregard any other law.”176
In sum, then, both the President and his subordinates have a duty to
“take care” of the salient CIL principle prohibiting arbitrary and
prolonged detention under the everyday operation of the IIRIRA. In
the discretionary realms of the statutory framework, ICE personnel are
bound to the norm of non-arbitrariness. Non-arbitrariness requires the
timely and individualized balancing of equities, as borne out in the
Priorities Memo, against sound policy justifications for detention.
VI.
CONCLUSION
In the end, foreign policy justifications are not particularly relevant
to the capricious treatment of non-citizens under the current regime of
civil immigration detention. While courts have traditionally afforded
great deference to the political branches in formulating and implementing immigration policy, recent jurisprudence suggests a heightened scrutiny of substantive outcomes and procedural defects177 even
in the face of the IIRIRA’s mission to eliminate Article III review.178
The import of The Paquete Habana reigns here: where there is no
controlling executive or legislative act, resort must be had to the customs of civilized nations. The default for civilized nations is liberty,
not detention. The default for civilized nations is individualized determination and periodic review with preference for conditional release,
not indeterminate detention in state and county prisons suffering
abominable conditions. ICE attorneys, agents, and officials are bound
to the extant CIL principle prohibiting arbitrary and prolonged detention to the extent permitted by law. Federal courts, in turn, can and
should give such a principle effect as the governing federal common
law of the United States.
176. Henkin, Chinese Exclusion, supra note 2, at 885.
177. See, e.g., Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2580 (2010) (rejecting government’s assertion that two minor state possession charges amounted to a federal felony for
purposes of mandatory deportation). One commentator opines that Justice Stevens’ opinion in
Carachuri-Rosendo sends “a clear signal that the Attorney General could (and perhaps should) use
available discretion to allow noncitizens to remain with their families.” Kohli, supra note 100, at 19.
178. The REAL ID Act of 2005 did not impact the availability of § 2241 habeas corpus review
in cases challenging the length or condition of detention; it only purported to remove such review
of final removal orders. See AMERICAN IMMIGRATION COUNCIL, INTRODUCTION TO HABEAS CORPUS 2-3
(2008), available at http://www.americanimmigrationcouncil.org/sites/default/files/lac_pa_
0406.pdf.
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