Habeas Shmabeas Says the Second Circuit (in a Footnote)
In my most recent Verdict column , I offered some thoughts about a strange invitation for amicus briefing from the Board of Immigration Appeals (BIA). The BIA asked for views about whether it is bound by Supreme Court precedent "even in situations where an application of that precedent would require the Board to find a statute or regulation unconstitutional." As I explained in the column, of course the BIA is generally bound by Supreme Court precedent, but in certain circumstances that restriction can conflict with a prohibition on the BIA declaring acts of Congress unconstitutional. My column explained that there can be a conflict in cases involving as-applied challenges to federal statutes, depending on how broadly or narrowly one construes Supreme Court precedent. In order to explore what I took to be an interesting question, my Verdict column took the BIA amicus invitation at face value, but I cautioned at the end that one must be mindful that the BIA could well be acti...