Think Immigration: Why I Wrote About the Major Questions Doctrine and Expedited Removal and Why It Matters Now
As part of our efforts to amplify the AILA Law Journal, author Catherine Tanihu describes why she focused her piece on the Major Questions Doctrine and how thus far the expansion of expedited removal under DHS, as an example, seems to be getting a pass. Click through this link to read the full article from the Spring 2026 issue of the AILA Law Journal.
Two trends have been colliding in my mind for months, and I couldn’t shake the feeling off that I needed to connect the dots.
First, there’s the post-Loper Bright landscape. After the Supreme Court struck down Chevron deference, administrative agencies have faced unprecedented scrutiny. Courts are no longer rubber-stamping agency interpretations of ambiguous statutes. The era of automatic deference is over.
Second, there’s the relentless expansion of executive power in immigration law, particularly through expedited removal. What started as a narrow tool for border enforcement has quietly ballooned into a sweeping deportation mechanism affecting millions of people, often with minimal procedural protections.
Reading case after case decided in the wake of Loper Bright, I noticed something: the Department of Homeland Security (DHS) has largely escaped this new wave of judicial skepticism. While the EPA, OSHA, and other agencies have been reined in under the Major Questions Doctrine, immigration enforcement has continued expanding under broad, decades-old statutory language. The Major Questions Doctrine is straightforward. It asks two questions: (1) Does the agency action have vast economic and political significance? (2) Has Congress clearly authorized the agency to act? If the answer to the first is yes and the second is no, the agency loses. The doctrine prevents agencies from exploiting vague laws to do things Congress never intended, protecting us from the reality that power corrupts, and absolute power corrupts absolutely. Expedited removal easily meets the first test. It affects hundreds of thousands of people annually, operates with minimal judicial oversight, and raises profound questions about due process and fairness. The political and human stakes are enormous.
But has Congress clearly authorized DHS to expand expedited removal to the extent it has? That’s the question my article tackles. The statutory language is broad and old. The expansion has gone far beyond what anyone anticipated when the law was written. If we’re applying heightened scrutiny to agencies across the board, immigration enforcement shouldn’t get a pass. Agencies serve vital functions, and immigration enforcement is necessary. But after decades of Chevron deference, agencies got used to operating with a lot of leeway. The pendulum has swung. The end does not justify the means, rather the proper means must be used to justify the end. No one would want an agency making huge decisions if there are no checks or balances guarding the decisions or giving them the authority to do so.
That’s the heart of the Major Questions Doctrine, and that’s why now is the right time to wake up the conversation about expedited removal. My article argues it’s time to apply the same scrutiny to DHS that we’re applying everywhere else.
