Behind the Scenes on a Different Set: What Congress Needs to Do in the Aftermath of St. Cyr and Nguyen

Margaret Taylor has provided a highly useful and critical perspective on neglected institutional players who help set immigration policy, focusing her attention on units of the Department of Justice other than the Immigration and Naturalization Service ("INS") that are involved in immigration litigation. 1 Agreeing with most of her analysis, I wish to focus my commentary instead on another institutional player that is sometimes neglected in the aftermath of major Supreme Court rulings: Congress. Congress could of course simply ignore the three decisions of the past term 2 and let the agencies pick up the pieces. Or it could take the Court's decisions in Zadvydas and St. Cyr as a roadmap for the magic words it needs to use to make really, really sure that its most draconian members' preferences are carried out. In that scenario, of course, its handiwork would be subject to another round of litigation presenting squarely the constitutional questions surrounding detention and the elimination of judicial review that the Court so far has avoided. Alternatively, the present Congress, which lacks the ugly confrontational edge of the 1996 Congress, could take an entirely different and more constructive course, now that the Supreme Court has saved it from a few of the gratuitously harsh provisions it enacted that year. In essence, the Court used the constitutional-doubt doctrine and the clear-statement requirement in time-honored fashion, asking Congress to go back, take a cold shower, and think afresh about what its members really want to accomplish, now that they have ...