Late last year, the Court of Appeals for the Fifth Circuit affirmed a sweeping injunction against President Biden’s termination of the Migration Protection Protocols by grossly distorting statutory provisions enacted in 1996.
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. He served in the State Department’s Human Rights Bureau 1978 to 1980, as general counsel to the Immigration and Naturalization Service, 1995 through 1997, and as principal deputy general counsel to the Department of Homeland Security, 2009 through 2010.
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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.
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.