Margin of Appreciation: A Model for Immigration Reform in the United States during COVID-19

Bethany Gamble

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3 Margin of Appreciation: A Model for Immigration Reform in the United States during COVID-19

In: Hague Yearbook of International Law / Annuaire de La Haye de droit international, Vol. 34 (2021)

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Bethany Gamble

Bethany Gamble
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Type:: Chapter

Pages:: 75–88

DOI:: https://doi.org/10.1163/9789004544796_004

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Abstract

This article examines the European Court of Human Rights’ margin of appreciation doctrine as contrasted with the plenary power doctrine over immigration laws in the United States. The European Court of Human Rights applies the margin of appreciation balancing test when reviewing violations of the European Convention of Human Rights. This balancing test applies equally to immigration matters. Conversely, in the United States, the plenary power doctrine gives the political branches near unfettered power over immigration laws without traditional standards of judicial review. This article specifically examines United States’ use of Title 42 since the beginning of the COVID-19 pandemic as justification to expel migrants who have recently been in a country where a communicable disease is present. Under this policy, the United States has expelled millions of migrants, including those seeking asylum, in violation of human rights obligations. This article argues that U.S. courts should abandon the plenary power doctrine and apply the margin of appreciation balancing test to immigration legislation to advance human rights protections in the United States.

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Hague Yearbook of International Law / Annuaire de La Haye de droit international, Vol. 34 (2021)

Series: Hague Yearbook of International Law / Annuaire de La Haye de droit international, Volume: 34

E-Book ISBN:: 9789004544796

Publisher:: Brill | Nijhoff

Print Publication Date:: 19 Jul 2023

Subjects
- International Law
  - Public International Law

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3 Margin of Appreciation: A Model for Immigration Reform in the United States during COVID-19

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Hague Yearbook of International Law / Annuaire de La Haye de droit international, Vol. 34 (2021)

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