Independent Courts
How about freeing immigration courts from the influence of the executive arm of government that enforces immigration law as well as policies and regulations promulgated in the same executive arm of government by taking the immigration courts out of the Department of Justice, where they now reside, and establishing them as independent Constitutional legislative courts?
Government agencies bypass checks and balances of the legislative, executive and judicial branches built into the national government by writing regulations (a legislative power); enforcing its own regulations and related laws with penalties and, in the arena of immigration regulations and law, loss of liberty (an executive power); and adjudicate controversies arising from enforcement of their own regulations (a judicial power).
Converting the immigration courts to Constitutional legislative courts would more effectively insulate the immigration courts from the powerful influence of the executive arm of government and seemingly concomitant political machinations by establishing the check and balance of the judicial branch over the adjudication of immigration controversies.
Congress, for example, converted the tax court from an administrative court to a Constitutional legislative court in the Tax Reform Act of 1969.
Government agencies are generally averse to giving up jurisdiction or power. Arguments might be made that converting the immigration courts into Constitutional courts would be inconsistent with the need for immigration proceedings to be expeditious.
One answer to this argument is that immigration proceedings are no more efficient now than proceedings that can be anticipated in a Constitutional legislative court. The parties in immigration court can now appeal to the Board of Immigration Appeals ("BIA"). From the BIA, the DHS can appeal to the Attorney General and the individual respondent who is the subject of immigration proceedings can appeal to the court of appeal having jurisdiction over the immigration trial court. Ultimately, the respondent can appeal to the United States Supreme Court, like any other litigant in the United States court system.
Converting the immigration courts to Constitutional legislative courts might make immigration proceedings more expeditious by eliminating the administrative review that is currently conducted by the BIA. If the immigration courts became Constitutional legislative courts appeals could be taken directly to circuit court of appeals, thereby eliminating the time such appeals would otherwise remain pending before the BIA. Even if the number of immigration appeals remained the same, there would be one less layer of review before final disposition.
Clearly converting the immigration courts to Constitutional legislative courts is a reform worthy of serious consideration.