Despite the pall that hangs over the anniversary, an examination of the Refugee Act’s architecture may foster appreciation of what it achieved and provide guidance for overcoming today’s global refugee and asylum dysfunction.
David A. Martin is Warner-Booker Distinguished Professor Emeritus at the University of Virginia School of Law and also a fellow of the Miller Center for Public Affairs and of the Migration Policy Institute. As a State Department lawyer, he participated in the drafting and negotiation of the Refugee Act, and he helped administer the law’s provisions in 1980 and later as general counsel to the Immigration and Naturalization Service, 1995 through 1997, and as deputy general counsel to the Department of Homeland Security, 2009 through 2010.
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Chief Justice John Roberts is a complex and subtly innovative jurist. The Supreme Court’s census decision revealed his skills, particularly seen against the backdrop of the gerrymandering case decided the same day. His ruling against the executive may actually strengthen deference to executive discretion when wielded by a future normal presidency, but in his decisive opinion (joined in full by no other justice), Roberts also refined a neglected counterdeference tool—pretext analysis.