Eric Fish

Eric Fish

@ericfish.bsky.social

Law Professor at UC Davis. Writing about criminal law, constitutional rights, and prosecutions at the border.

1.6K followers820 following169 posts

Eric Fish reposted

Jotwell
@jotwell.bsky.social

Jotwell Adlaw: Christopher Walker, The Unitary Executive at the Border (and Beyond), JOTWELL (October 22, 2026) (reviewing Eric S. Fish, Deportation in the Deep State, __ Stan. L. Rev. __ (forthcoming), available at SSRN (Apr. 11, 2026)), adlaw.jotwell.com/the-unitary-....

Eric Fish reposted

Lawrence Solum
@lsolum.bsky.social

Fish on Deportation in the Deep State Eric S. Fish (University of California, Davis – School of Law) has posted Deportation in the Deep State (forthcoming, Stanford Law Review) on SSRN. Here is the abstract: Since 1997, low-level immigration agents have conducted fast-paced deportation hearings.…

legaltheoryblog.comFish on Deportation in the Deep StateEric S. Fish (University of California, Davis – School of Law) has posted Deportation in the Deep State (forthcoming, Stanford Law Review) on SSRN. Here is the abstract: Since 1997, low-level immigration agents have conducted fast-paced deportation hearings. These hearings, called Expedited Removals, circumvent the formal immigration court process. They involve an immigration agent interviewing an immigrant and deciding whether to order them deported, with no opportunity for appeal.
Eric Fish
@ericfish.bsky.social

The low-level bureaucrats of the “deep state” can no longer adjudicate patent or securities law claims. But they can still deport immigrants unilaterally and without appeal.

Eric Fish
@ericfish.bsky.social

The denial of judicial review thus helps resolve a conflict between two conservative political projects: the unitary executive and mass deportation.

Eric Fish
@ericfish.bsky.social

Congress foreclosed judicial review through a series of jurisdiction-stripping provisions. This means Expedited Removal effectively exists outside of the Constitution.

Eric Fish
@ericfish.bsky.social

By cutting off review, the government has created a zone of lawlessness in which it can deport immigrants without conforming to the Constitution’s requirements. This strategy has effectively excluded immigrants from the Roberts Court’s formalist reshaping of the administrative state.

Eric Fish
@ericfish.bsky.social

That means they must either be appointed by the President and confirmed by the Senate, or appointed by an agency head pursuant to a statute. Further, all final Executive Branch decisions must be subject to review by a Principal Officer. Low-level immigration agents do not satisfy these conditions.

Eric Fish
@ericfish.bsky.social

By conducting removal proceedings and issuing unreviewable deportation orders, they exercise authority reserved to Principal and Inferior Officers. Yet there is no clear mechanism to bring an Appointments Clause challenge to the Expedited Removal system.

Eric Fish
@ericfish.bsky.social

If the Trump Administration succeeds in its current aims, Expedited Removals will soon comprise nearly the entire deportation system. Expedited Removals are also unconstitutional, based on the Supreme Court’s reading of the Article II Appointments Clause.

Eric Fish
@ericfish.bsky.social

In recent decisions, most notably Lucia v SEC and U.S. v Arthrex, the Court has strengthened the requirements for wielding executive branch power. Any executive employee who exercises significant authority under the laws of the United States must be either a Principal Officer or an Inferior Officer.

Eric Fish
@ericfish.bsky.social

Since 1997, low-level immigration agents have conducted fast-paced deportation hearings. These hearings, called Expedited Removals, circumvent the formal immigration court process.

Eric Fish
@ericfish.bsky.social

They involve an immigration agent interviewing an immigrant and deciding whether to order them deported, with no opportunity for appeal. Expedited Removals currently produce more than half of all deportation orders. And they are the centerpiece of President Trump’s ongoing mass deportation campaign.

Eric Fish reposted

Ilya Somin
@ilyasomin.bsky.social

In today's SCOTUS oral argument, Justice Barrett asked about how Trump's rationales for denying birthright citizenship to children of illegal migrants would also deny it to many ex-slaves. SG Sauer's answer on crucial issue was factually wrong. See my explanation here: reason.com/volokh/2026/...

reason.comJustice Barrett, Slavery, and Birthright CitizenshipI have previously written about how all of the Trump Administration's rationales for denying birthright citizenship to children of…
Eric Fish
@ericfish.bsky.social

Hot off the presses!

Southern California Law Review@sclr-official.bsky.social

Presenting “Sentencing Immigrants” by Professor Eric S. Fish (@ericfish.bsky.social) of the University of California at Davis School of Law (@ucdavislaw.bsky.social). Read more here: southerncalifornialawreview.com/2026/03/26/s...

Eric Fish
@ericfish.bsky.social

This is a self-defeating way of approaching legal politics. Of course Supreme Court decisions are political in a broad sense. But the legal arguments still matter. Decisions cost the Court more legitimacy if they are openly lawless. Why cede the terrain and give up arguments from legal authority?

Connor Ewing@cmewing.bsky.social

Important—and also infuriating—series of posts underway at Balkinization: balkin.blogspot.com/2026/03/birt...

Eric Fish reposted

Brad Lander
@bradlander.bsky.social

According to documents filed this morning by the U.S. Attorney for the Southern District of NY, ICE has been lying for a year — not only to the public, but to the courts and to prosecutors — about being authorized to make arrests at 26 Federal Plaza and other immigration courts. (1/2)

Eric Fish reposted

Austin Kocher, PhD
@austinkocher.com

The U.S. runs the largest immigration detention system in the world. But what law actually protects people inside it? A Harvard Law Review article by @Das_Alina provides an alarming answer. 🧵

Eric Fish reposted

Megan Stevenson
@meganstevenson.bsky.social

Robynn Cox and I have a new paper! It's about the history of predictive algorithms in criminal justice, back in the 1920s-1950s. This paper is the result of five years of research and we're so happy to see it out. 🧵 1/

Eric Fish reposted

Justin Murray
@justinnyls.bsky.social

Now forthcoming in the Virginia Law Review, my latest work rethinks how information should get shared in criminal cases, and why we need to look beyond the celebrated Brady doctrine if we are serious about improving the fairness of criminal discovery. 🧵🔽

Justin Murray@justinnyls.bsky.social

New paper alert! My latest - "Brady's Shadow" - is now on SSRN: papers.ssrn.com/sol3/papers.... Still a work in progress—would love your thoughts. It's about how one spectacularly failed doctrine somehow cannibalized other, more promising avenues for criminal discovery.🧵

papers.ssrn.com<i>Brady</i><span>'s Shadow</span><p><i>Scholars have spent sixty years documenting </i>Brady v. Maryland’<i>s failures—its materiality standard that licenses suppression of exculpatory evidence

Eric Fish reposted

Nila Bala
@nilabala.bsky.social

Thrilled to share that 𝐺𝑢𝑖𝑙𝑡 𝑏𝑦 𝑃𝑎𝑟𝑒𝑛𝑡ℎ𝑜𝑜𝑑 has found a home with the Yale Law Journal. This piece examines parental liability regimes and parental rights, and how they are connected by a shared logic that harms children and families. Thank you to all those who read drafts and offered feedback!

Eric Fish reposted

Lawrence Solum
@lsolum.bsky.social

Fish & Keller on the Crime of Undocumented Presence Eric S. Fish (University of California, Davis - School of Law) & Doug Keller have posted Fabricating the Crime of Undocumented Presence on SSRN. Here is the abstract: In 2025, the Trump Administration’s Office of Legal Counsel declared that it is…

legaltheoryblog.comFish & Keller on the Crime of Undocumented PresenceEric S. Fish (University of California, Davis - School of Law) &amp; Doug Keller have posted Fabricating the Crime of Undocumented Presence on SSRN. Here is the abstract: In 2025, the Trump Administration’s Office of Legal Counsel declared that it is a federal crime simply to be an undocumented immigrant. But Congress has enacted no such crime. Congress has made it a crime, codified at 8 U.S.C.
Eric Fish
@ericfish.bsky.social

Just posted a draft law review article written with @dkeller.bsky.social. It concerns the Trump Administration's efforts to turn being an undocumented immigrant into a permanent criminal status. Available here: papers.ssrn.com/sol3/papers....

papers.ssrn.comFabricating the Crime of Undocumented Presence<p>In 2025, the Trump Administration’s Office of Legal Counsel declared that it is a federal crime simply to be an undocumented immigrant. But Congress has enac

Eric Fish reposted

Nila Bala
@nilabala.bsky.social

My latest article, Policing Children’s Data, is out today. It offers a comprehensive look at how law enforcement accesses children’s digital information and challenges the assumption that parental consent is enough to protect kids’ privacy. 📖 Read more: wustllawreview.org/2025/11/12/p...

wustllawreview.orgPolicing Children’s Data – Washington University Law ReviewIn recent years, advances in policing technology have dramatically expanded law enforcement’s ability to access data. This includes children’s data—their photographs, text messages, geolocation data, ...

Eric Fish reposted

Nila Bala
@nilabala.bsky.social

My new essay is in the University of Chicago Law Review Online: “Children and the Cars That Watch Them.” Autonomous vehicles promise freedom for kids, but also bring unprecedented surveillance. Parental consent isn’t enough; we need substantive limits. lawreview.uchicago.edu/online-archi...

lawreview.uchicago.edu Children and the Cars That Watch Them | The University of Chicago Law Review Parents are turning to autonomous vehicles (AVs) to shuttle their children around, seeing them as a safe and convenient option. AVs promise increased mobility for children but bring with them unparall...