Reconceptualizing the Law for Deportees: Discretion, Human Rights, and the “Spirit of Fair Play”

Daniel Kanstroom

in Aftermath

Published in print July 2012 | ISBN: 9780199742721
Published online September 2012 | e-ISBN: 9780199950348 | DOI:
Reconceptualizing the Law for Deportees: Discretion, Human Rights, and the “Spirit of Fair Play”

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This chapter considers what the rule of law requires during deportation proceedings and after deportation has taken place? The answer cannot be “whatever the majority wills” or “whatever the executive enforces.” That would countenance government behavior and consequences that we should not accept. And yet the answer also is not, “exactly the same rights as U.S. citizens have” or “infinite, endless, open-ended review.” The best legal solution lies somewhere in between, mediated by moderately flexible ideas of discretion, judicial oversight, and a humane understanding of basic human rights principles, especially those that mandate proportionality and reject arbitrariness whenever state power is brought to bear against people, regardless of their legal status or their location. The chapter analyzes possible building blocks for a re-conceptualized rule of law for deportation., including discretion, an ideal of “fair play” championed by Frances Perkins, and, finally, the model of international human rights law as determined by the Interamerican Commission, the European Court of Human Rights and other bodies.

Keywords: rule of law; discretion; judicial oversight; proportionality; Frances Perkins; human rights

Chapter.  15494 words. 

Subjects: Human Rights and Immigration

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