Tuesday, October 25, 2016

Abrahamson on Reforming Deportation Procedure in the Late New Deal

I want to draw the attention of my fellow aficionados of the history of administrative law and procedure to a recently published (and, unfortunately, gated) article by a former student of mine, Reed Abrahamson, now an associate at Drinker Biddle & Reath LLP.   It is "The Ideal of Administrative Justice": Reforming Deportation at the Department of Labor, 1938-1940,” Georgetown Immigration Law Journal 29 (2015): 321-49.

The article treats the work and findings of a committee within the Department of Labor, the home, since 1913, of the Immigration Service, tasked by Secretary Frances Perkins to study deportation procedures.  It performed its duties in extremely contentious circumstances.  During its labors, partisans found administrative procedure to be a useful stick with which to beat the New Deal, and the attempted deportation of West Coast labor leader Harry Bridges became a cause celebre.  After President Franklin D. Roosevelt transferred the immigration service to the Department of Justice, the committee’s recommendations were never implemented.  Still, its history, recovered by Mr. Abramson from the Department of Labor’s records at the National Archives and Henry M. Hart’s papers at the Harvard Law School, is instructive.  Not the least reason was the difference in outlook between the committee’s two most important members, the law professor (and protégé of Felix Frankfurter) Hart and a public administrations expert, Marshall Dimock.  It also complements the  better-known story of a contemporaneous study group, the Attorney General’s Committee on Administrative Procedure.

Here is Mr. Abrahamson’s abstract:
From 1938 to 1940, Frances Perkins presided over a second wave of efforts to reform the Immigration and Naturalization Service until the Service 's eventual transfer to the Department of Justice from the Department of Labor in 1940. These reforms were lead by a committee that included, at an early stage in their careers, prominent scholars Henry Hart and Marshall Dimock. From 1939 to 1940, the committee's suggestions for expanding the due process rights afforded to immigrants in deportation proceedings were rolled out on a trial basis. Grounded in the Supreme Court's decisions on administrative decision-making and a humanitarian desire to improve the treatment of immigrants, the committee's recommendations expanded the procedural and substantive protections available to aliens. Ultimately, these reform efforts did not make a lasting impact, likely due to the interdepartmental transfer of the Service and the onset of World War I. The Supreme Court would briefly adopt some of the committee's suggestions following the passage of the Administrative Procedure Act, until Congressional action altered the legal framework in which deportations took place. Although the long-term impact of the committee's recommendations proved limited, its work demonstrates an alternative vision of the Immigration and Naturalization Service that emerged late in the New Deal period.