Immigration, Strasbourg, and Judicial Overreach

March 19, 2021

This paper traces the history of several judicially demanded or created obstacles to preventing unlawful entry or removing illegal migrants.  The decisions to create these obstacles, it argues, were well-motivated but unauthorised and even unprincipled. This is a story in which European courts and our own courts all have a part.  In the lead was the Strasbourg Court.  Our courts have sometimes criticized and slowed the advance, sometimes got ahead, but for the most part have simply been loyal to Strasbourg.  Our legislators, ministers, and citizens are entitled to know how far the laws said to constrain their migration-control options have in fact been created by judges.  For judicial proceedings are not apt instruments of legislation.   The continuing attachment of courts, European and national, to “living instrument” doctrines puts in doubt our constitutional form of government, our rule of law.

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