by Maureen Stobb, Banks Miller, & Joshua Kennedy
The President and Congress have renewed efforts in the past year to reshape immigration policy. Yet, if history can teach us anything, it is that outcomes in this area tend not to match intent. Our research looks at a clear example of this mismatch, the REAL ID Act, a law aimed at tightening refugee admissions by taking control away from liberal judges on the U.S. Courts of Appeals. Despite its intent, it resulted in more people getting asylum. In our research we ask, what explains this policy gap?
We contend that part of the answer lies in the REAL ID Act’s ambivalent language, a common characteristic of policy concerning undocumented immigrants. The law gave the street-level bureaucrats who decide asylum cases —immigration judges (IJs)— more discretion to deny bogus asylum claims. They no longer had to point to an inconsistency undermining a key aspect of the persecution claim to find the applicant not credible. They could deny based on inconsistencies such as birthdays and wedding dates that have no connection to the asylum claim. At the same time, the law required IJs to consider all the circumstances, potentially reincorporating some of the former rule.
What did IJs do in this situation? They are supposed to follow the precedent in the circuit with jurisdiction over where they sit, but the President controls their hiring and firing, and Congress writes the law and determines their budget. We argue that IJs, behaving in a bounded rationality framework, relied on their professional training as lawyers as a shortcut and were considerably more deferential to the circuit courts who read every opinion they write.
We find just that. As the figure below shows, the adoption of the REAL ID Act’s credibility standard enabled significantly closer ideological control by the courts. Before REAL ID, there was very little relationship between the presumed aggregate preferences of the appellate courts on asylum cases and IJ decision making in that circuit. But after the REAL ID Act is implemented by the circuit through the adoption of its standard in precedent, as the percentage of the circuit that is Democratic increases so too does the likelihood of an IJ granting asylum. The impact went from 3 to 52 percentage points.
Figure 1: REAL ID & the Circuit Courts
We saw an increase in influence for Congress and the President, but it was not nearly as large. We also show this is not just a result of the uniqueness of the first Trump administration.
The findings suggest that any attempts to restrict asylum access through immigration courts during Trump’s second term would require precisely written policies. If the administration and a Republican-controlled Congress pursue such restrictions, vague or ambiguous language could backfire. In cases of unclear policy, IJs will turn to federal courts for guidance—potentially leading to interpretations that run counter to the administration’s goals.
You can read the original article in Policy Studies Journal at
Stobb, Maureen, Banks Miller, and Joshua Kennedy. 2023. Mixed messages & bounded rationality: The perverse consequences of real ID for immigration policy. Policy Studies Journal 51: 667–684. https://doi-org.echo.louisville.edu/10.1111/psj.12486
About the Authors
Maureen Stobb is an Associate Professor of Political Science at Georgia Southern University. Her research focuses on the expansion of judicial power relative to the legislature and the executive, particularly in the policy areas of immigration and citizenship. Her research has been published in various outlets including The Journal of Law & Courts, and Justice System Journal.
Banks Miller is an Associate Professor of Political Science at the University of Texas at Dallas. His research focuses on judicial decision making, intellectual property policy, and immigration policy. Recent work has been published in the Journal of Law & Courts and American Politics Research.
Joshua B. Kennedy is an Associate Professor of Political Science at Georgia Southern University. His research of late focuses on political control of the administrative state, and he has also published in the area of unilateral presidential power. His research has appeared in American Politics Research, Research & Politics, and Presidential Studies Quarterly, among other outlets.
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