Donald Trump's approach to immigration has been revolutionary, to say the least. In his short tenure in office, his policies banning travel of individuals from certain Muslim countries have been taken to the United States Supreme Court on two separate occasions, and his most recent technique of separating children from their parents at the border has already spawned litigation. His boldest proposal yet, however, involves the widespread denial of procedural rights to immigrants.In his words, "[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came [sic]."
This Essay considers the applicability of certain peremptory norms commonly referred to as jus cogens to the Administration's recent calls to eliminate immigration hearings. The "norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority." Because "[j]us cogens norms are often thought to be equivalent to constitutional principles of international law ... ," they are often referred to as "an international bill of rights, or . .. are said to constitute the highest in a norms hierarchy."
The discussion begins in Section II by defining traditional and procedural elements of jus cogens, followed by an analysis in Section III of the content of procedural jus cogens. Next, Section IV considers how these principles might operate with respect to the Administration's proposals to eliminate immigration hearings. Notably, the recommendations outlined herein may apply equally to other violations of procedural law, both in the immigration context and beyond. Section V then concludes the discussion with certain forward-looking observations.
S. I. Strong,
Can International Law Trump Trump's Immigration Agenda: Protecting Individual Rights through Procedural Jus Cogens, 2018 University of Illinois Law Review Online 272
Available at: https://scholarship.law.missouri.edu/facpubs/906