Bring in the Friendly Hand: The Effects of Judicial Inaction on Democratic Policymaking in Immigration Law.

Many scholars have theorized that judicial review can provide a "friendly hand" to the elected branches by enforcing legislative bargains, taking on politically difficult decisions, clarifying vague or conflicting legislation, and/or buttressing federal power against state actors. Other scholars contend that empowering the judiciary to have an active role in policymaking has undesirable consequences - to these scholars, the judicialization of politics unwisely reframes the policy debate in legal terms, disempowers social movements by removing issues from traditional political contestation, and generates public and political backlash. This paper addresses these claims by examining an area where the courts, through either actively declining jurisdiction or passively acquiescing to executive power, have deliberately abstained from claiming a role in policymaking. We examine the negative space caused by such willful "un-juridification" by looking at American immigration policy. Courts have traditionally shown extraordinary deference to the plenary authority of the elected branches in immigration law. Federal courts have largely abdicated responsibility in determining, enforcing, or reviewing immigration laws -- holding that the elected branches have unrestricted power over immigration policy, border security, and qualifications for citizenship as a matter of state sovereignty. This "oil- and-water relationship" between immigration law and judicial review has generated much scholarship providing historical and socio-political explanations for the reticence and its adverse impact on immigrant rights. However, the literature lacks a comprehensive analysis of the impact of judicial deference on the elected branches. We look at the effects of this judicial void using institutionalist and rational choice frameworks. We develop a formal model of the politics of judicial abdication in the immigration context by looking at the institutional legacies, structural aspects of independence and separation of powers, and feedback and direct effects on coalition building and statute drafting. Our research thus seeks to go beyond the standard debate about judicial activism and constraint and explore the dynamics of the court as a political branch engaged in strategic decision-making within the larger democratic framework. [ABSTRACT FROM AUTHOR]