Immigration detention is authorized by a complex statutory and regulatory scheme. With one notable exception, the Supreme Court has largely upheld the system that Congress has designed, bowing to traditional congressional primacy in the regulation of immigration. The Court has relied on the plenary power doctrine—an extratextual, judicially created doctrine granting the political branches great deference in the immigration sphere—to sustain our nation’s present immigration detention system.
This Note proposes an alternative legal model of immigration detention. Instead of a theory marked by judicial deference to Congress and the President, I advance a constitutionalized theory of immigration detention. I confine my argument to the structure of judicial review of administrative detention determinations—that is, how the federal courts should review the immigration enforcement officials’ and administrative adjudicators’ decisions to detain a non-citizen during the pendency of immigration proceedings or the execution of a removal order. I draw on constitutional text and principles as well as contemporary and historical judicial practice to envision the contours of a system of constitutionalized judicial review of immigration detention.