Eric Holder's agenda has also been obvious: fix the mistakes that the Bush administration's Justice Department made while restoring its integrity. He advanced that agenda earlier this month by vacating Mukasey's decision and ordering immigration judges to apply the law as it existed before Mukasey messed it up. Holder also departed from a Bush administration tradition by initiating an administrative rulemaking proceeding that will allow the Department, acting transparently and with the benefit of public comment, to consider adopting a formal rule governing motions to reopen based on claims of ineffectiveness assistance.

Mukasey had the power to impose his will on immigration judges because Congress stacked the deck against immigrants seeking legal relief.

Immigration court is a strange creature in the context of the legal system. There are effectively no rules of evidence, no discovery, and under of Matter of Compean, no right to effective assistance of counsel. In the Immigration Court system, the Department of Justice makes the final decision on the outcome of each case, not the independent judiciary. The Attorney General can, and sometimes does, simply reverse the decision of the lower immigration courts, to suit his or her political agenda.

Unlike John Yoo's torture memo, Mukasey's legal reasoning is unconvincing but not specious, even if contradicts the holdings of seven of the ten appellate courts to decide the question. Yet the wisdom of Mukasey's decision does not depend upon the strength of his legal analysis. With a large majority of federal appellate courts and the long-standing precedent of the Board of Immigration Appeals recognizing the existence of a constitutional right, Mukasey's decision to take it upon himself to deny the right's existence was stunningly arrogant. A prudent Attorney General would protect a widely recognized constitutional right while asking the Supreme Court to resolve the issue. An Attorney General who wanted to broaden executive power while thwarting challenges to that power advanced his agenda by making the decision himself. Holder deserves credit for fixing another problem that the Ashcroft-Gonzales-Mukasey Justice Department left behind.