University of Connecticut Law Review
Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration and national security that supplants traditional, group-based inquiries into sovereignty, citizenship, and territoriality. Second, because Mathews requires a judicial assessment of the merits of various policies, courts have become much more actively involved in considering — and, at times, constraining — administrative and quasi-administrative action. Although courts still frequently yield to government interests in immigration and national security cases — Mathews has not caused a sea change in due process protections — the “Mathewsization” of both fields has changed the judicial role, with payoff for individual rights. Moreover, this payoff extends beyond the courts, for the coordinate branches, too, are experiencing a Mathewsization of sorts. In a world defined by fractious institutional power grabs, the new due process has prevented executive and congressional overreach, stimulating a new legal-process-oriented methodology of inter-branch coordination in areas of law once defined by extreme deference to the judiciary.
Due Process and the Non-Citizen: A Revolution Reconsidered, 47 U. Conn. L. Rev. 879
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