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Topic: Immigration policy for Texas in the 2016 Presidential Election of Donald Trump
Explain the position taken by President candidate Trump and any actions taken on the issue since his inauguration Jan 20 with by the President, Congress or the federal courts. What response would you recommend to President Trump?
-Few documents are attached together, so you have to analyze them first and write on the information based on those articles.
– Must be at least 4 pages in MLA format and work cited page should be there with supplementary sources. For supplementary source, I have attached one file and you can add others if needed.
—In-text citation is the must.
-Must be A+ and original writing.
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V
O
LUME 130 MAY 2017 NUMBER 7
H A R V A R D L A W R E V I E W F O R U M
© 2017 by The Harvard Law Review Association
ESSAY
IMMIGRATION AND THE BULLY PULPIT
Jennifer M. Chacón∗
ne evening in early February, I sat in a nondescript hall in a local
community center in a Southern California city. This city is over
seventy-five percent Latino, and a sizable population of unauthorized
immigrants live and work alongside U.S. citizens here. In addition to
inflicting widespread emotional pain, full enforcement of the nation’s
immigration laws would hurt the local housing market and general
economy, with inevitable ripple effects throughout the regional and
state economies. Immigrants, whether lawfully present or not, are a
critical part of the lifeblood of the community.
The topic of discussion on that February evening was immigration
enforcement. Many concerned members of the audience asked ques-
tions about how the incoming Trump Administration’s immigration
policies would affect not only them, but also their families and the
communities they served as educators, health care providers, and local
business owners and workers. The evening was full of poignant mo-
ments, but one remark by a young immigration activist struck me as
singularly important: “We are glad that you are here,” he said to the
assembled crowd, “but we felt so alone during the Obama years.”
In recent weeks, the media has focused on the mood of terror in
immigrant communities.1 These accounts explain this terror as a reac-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
∗ Professor of Law, U.C. Irvine School of Law. This essay has benefited from long-running
conversations with Sameer Ashar, Susan Coutin, Jonathan Glater, Annie Lai, Stephen Lee, and
my students, particularly Melissa Adams, Vanessa Gomez, Liz Paez, and Daniel Werner.
1 See, e.g., Deepti Hajeli & Amy Taxin, Immigrants Fearing Deportation Under Trump
Change Routines, ASSOCIATED PRESS NEWS (Feb. 23, 2017), https://www.apnews.com/cdecb058
f4a94810af45189bc7c5444a [https://perma.cc/5G3L-R4YE]; Tal Kopan, Democrats, Advocates
Question ICE Raids After Hundreds of Arrests, CNN (Feb. 14, 2017), http://www.cnn.com/2017/02
/10/politics/democrats-question-ice-enforcement-raids/ [https://perma.cc/NZ5D-8HPR]; Joe Mozingo
et al., “I Can See the Fear”: Multicultural Los Angeles Senses a Different World Under
Trump, L.A. TIMES (Feb. 2, 2017), h t t p : / / w w w . l a t i m e s . c o m / l o c a l / c a l i f o r n i a / l a – m e – l n – l o s – a n g e l e s
– i m m i g r a t i o n – b a n – r e a c t – 2 0 1 7 0 1 3 1 – s t o r y . h t m l [h t t p s : / / p e r m a . c c / 8 Y M P – N S P W]; Anabel Munoz,
Local Immigrants Fear Separation from Families, Deportation Under New Administration, ABC7
(Feb. 10, 2017), http://abc7.com/news/immigrant-families-fear-separation-deportations-under-new
O
244 HARVARD LAW REVIEW FORUM [Vol. 130:243
tion to the evolving immigration enforcement policies of President
Donald J. Trump. Professor Peter Markowitz, who directs an immi-
gration law clinic at Cardozo Law School in New York, uttered a
common refrain when he noted: “I have never seen the level of panic
that is gripping our immigrant communities. Fielding a deluge of calls
from panicked immigrants is now a regular part of my day, as it is for
immigrant advocates across the city and across the nation.”2
Long before he was President, Trump intentionally stoked these
fears. Throughout his campaign, he made no secret of his desire to
upend what he clearly perceived as failed administrative practices
around immigration enforcement.3 Upon election, President Trump
spent his first four weeks in office rolling out immigration enforcement
policies with a great deal more fervor than competence.4 The worried
reactions to these events are real and understandable.
The current focus on this cresting wave of terror, however, obscures
an important reality that was captured by the young adult in the
community center in Southern California. The fear experienced by
immigrants in the United States did not start with Trump. The poli-
cies that President Trump has espoused and the resulting concern of
affected communities have deep roots in the past. Old laws and poli-
cies have generated the vulnerabilities that the Trump Administration
now seeks to exploit. Understanding the Trump Administration’s
emerging immigration policies and the reactions to them therefore re-
quires looking backward as well as forward.
This is not to say that President Trump’s immigration enforcement
policies should be conflated with those of his predecessors. His rheto-
ric of unconstrained severity matters a great deal, and not just because
the Administration’s tone fuels a climate of fear. The words have con-
sequences. The bombastic enforcement promises, when combined
with seeming indifference to certain constitutional rights and adminis-
trative realities, have apparently encouraged agents at the lowest ad-
ministrative levels to exercise their own power in a manner insuffi-
ciently constrained by law. Additionally, the new President’s first few
weeks in office have reflected a disheartening failure to internalize any
of the hard-learned lessons of previous administrations.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
-Administration/1747796/ [https://perma.cc/4ZSW-66TQ]; Ray Sanchez, After ICE Arrests, Fear
Spreads Among Undocumented Immigrants, CNN (Feb. 12, 2017), http://www.cnn.com/2017/02
/11/politics/immigration-roundups-community-fear/ [https://perma.cc/R2LT-L4DT].
2 Peter L. Markowitz, Understanding What Makes Trump’s Immigration Orders Truly
Chilling, N.Y. DAILY NEWS (Feb. 24, 2017), http://www.nydailynews.com/opinion/trump-chilling
-immigration-orders-article-1.2981758 [https://perma.cc/A2GC-P26T].
3 Domenico Montanaro et al., Fact Check: Donald Trump’s Speech on Immigration, NPR
(Aug. 31, 2016, 9:44 PM), http://www.npr.org/2016/08/31/492096565/fact-check-donald-trumps
-speech-on-immigration [https://perma.cc/6VKV-WQNV].
4 See discussion infra Part II.
2017] IMMIGRATION AND THE BULLY PULPIT 245
This Essay explores President Trump’s emerging immigration en-
forcement strategies in historical context. It starts with a look back at
the “lonely” years of immigrant activism. Part I of this Essay explains
the enforcement landscape the Obama Administration inherited and
the evolution of that Administration’s own enforcement policies. This
Part surveys the lessons learned — and not learned — by the Obama
Administration. Part II of this Essay details the new Administration’s
enforcement efforts, including the thwarted January 27, 2017 executive
order containing the now infamous travel ban on certain foreign na-
tionals and refugees,5 his March 6, 2017 executive order replacing the
January ban,6 and the interior immigration enforcement efforts
mapped out in two January 25, 2017 orders7 along with their imple-
menting Department of Homeland Security memoranda of February
20, 2017.8 This analysis reveals the extent to which Trump’s policies
constitute a doubling-down on some of the least productive approaches
to enforcement.
I. KNOWING HISTORY:
IMMIGRATION ENFORCEMENT UNDER OBAMA.
President Trump never hesitates to look backward opportunistical-
ly. In a surreal moment during his second debate against Hillary
Clinton, his rival for the presidency, he argued that the “wall” that he
promised so vehemently throughout his campaign was also supported
by President Obama and Hillary Clinton, both of whom had voted as
senators for the Secure Fence Act9 in 2006. When questioned critically
about his plans to deport families, then-candidate Trump responded by
pointing out that President Obama himself had overseen mass depor-
tations.10 And, in moments when he seeks to placate critics of his im-
migration policy from the political left, he notes the continuities be-
tween his policies and those of his predecessors. To that audience, he
asserts that his inept travel ban of January 27, 2017, was not the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
5 Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) [hereinafter Ban E.O. I].
6 Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 6, 2017) [hereinafter Ban E.O. II].
7 Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017) [hereinafter Border Enforcement
E.O.]; Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) [hereinafter Interior Enforcement
E.O.].
8 Memorandum from John Kelly, Sec’y, Dep’t of Homeland Sec., to Kevin McAleenan, Acting
Comm’r, U.S. Customs & Border Prot. et al. (Feb. 20, 2017), https://www.dhs.gov/sites/default
/ f i l e s / p u b l i c a t i o n s / 1 7 _ 0 2 2 0 _ S 1 _ E n f o r c e m e n t – o f – t h e – I m m i g r a t i o n – L a w s – t o – S e r v e – t h e – N a t i o n a l
-Interest [https://perma.cc/BY5F-L56V] [hereinafter Kelly Enforcement Memo].
9 Secure Fence Act of 2006, Pub. L. No. 109-367, 120 Stat. 2638.
10 Elise Foley, Donald Trump Wants to Deport Children, HUFFINGTON POST (Aug. 17, 2016),
h t t p : / / w w w . h u f f i n g t o n p o s t . c o m / e n t r y / d o n a l d – t r u m p – d e p o r t a t i o n s _ u s _ 5 7 b 3 9 0 b 8 e 4 b 0 e d f a 8 0 d a 2 5 5 f
[https://perma.cc/45G4-7ANV].
246 HARVARD LAW REVIEW FORUM [Vol. 130:243
“Muslim ban” of his campaign-trail fomentations,11 but a neutral secu-
rity policy premised on President Obama’s own findings about sites of
national security threats.
About much of this, President Trump is not wrong. The Obama
Administration did generate the list of countries around which Trump
organized his initial travel ban, although that Administration never did
advocate (and presumably never would have advocated) for anything
like Trump’s blanket travel ban on the nationals of those countries. As
senators, Clinton and Obama did support the construction of a physi-
cal and technological wall along portions of the border,12 and more
broadly, supported policies that generated hundreds of violent deaths
in the Southwestern border region.13 President Obama did remove
record numbers of foreign nationals every single year of his presiden-
cy,14 splitting up parents and children, and earning the unflattering
moniker of “Deporter in Chief” from immigrants rights activists.15
But President Trump’s invocation of history is selective and prob-
lematic, for even as he answers his left-leaning critics with examples of
Obama-era enforcement excesses, he paints a very different picture of
those efforts for his restrictionist base. To that audience, he suggests
that the Obama Administration was incompetent in matters of nation-
al security and completely absent from immigration enforcement ef-
forts. For his many supporters, President Trump paints a picture of a
nation besieged by a flood of criminal and terrorist immigrants — one
that flows directly out of the neglect of the prior Administration.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
11 Helena Horton, Muslim Ban Statement “Removed” from Donald Trump’s Website, THE
TELEGRAPH (Nov. 10, 2016, 10:18 AM), http://www.telegraph.co.uk/news/2016/11/10/muslim
-ban-statement-removed-from-donald-trumps-website/ [https://perma.cc/T4P9-8ZYZ].
12 Annie Linskey, In 2006, Democrats Were Saying “Build That Fence!”, BOS. GLOBE
(Jan. 27, 2017), h t t p s : / / w w w . b o s t o n g l o b e . c o m / n e w s / p o l i t i c s / 2 0 1 7 / 0 1 / 2 6 / w h e n – w a l l – w a s – f e n c e – a n d
-democrats-embraced/QE7ieCBXjXVxO63pLMTe9O/story.html [https://perma.cc/2NUH-LB44].
13 See, e.g., Jeremy Slack et al., The Geography of Border Militarization: Violence, Death and
Health in Mexico and the United States, 15 J. LATIN AM. GEOGRAPHY 7, 10–11 (2016) (discuss-
ing the link between border militarization and an increase in deaths); Kendal Blust, Deaths per
10,000 Border Crossers Are Up 5 Times from a Decade Ago, ARIZ. DAILY STAR (May 21, 2016),
h t t p : / / t u c s o n . c o m / n e w s / l o c a l / b o r d e r / d e a t h s – p e r – b o r d e r – c r o s s e r s – a r e – u p – t i m e s – f r o m – a – d e c a d e / a r t i c l e
_c1279aaf-4ad8-51c9-82d8-3143b836f52e.html [https://perma.cc/YP8A-TCMS] (exploring the con-
nection between deterrence policies and border deaths); Reece Jones, Death in the Sands: The
Horror of the U.S.-Mexico Border, THE GUARDIAN (Oct. 4, 2016), https://www.theguardian
. c o m / u s – n e w s / 2 0 1 6 / o c t / 0 4 / u s – m e x i c o – b o r d e r – p a t r o l – t r u m p – b e a u t i f u l – w a l l [h t t p s : / / p e r m a . c c / L 9 A 8
-P9ET] (discussing the same link).
14 OFFICE OF IMMIGRATION STATISTICS, U.S. DEP’T OF HOMELAND SEC., 2015 YEAR-
BOOK OF IMMIGRATION STATISTICS 103 tbl.39 (2016), https://www.dhs.gov/sites/default/files
/publications/Yearbook_Immigration_Statistics_2015 [https://perma.cc/6LZ4-YB9J].
15 See, e.g., Matt Welch, Opinion, Trump May Have Bad Intentions, But Obama Was a
Deporter-in-Chief Too, L.A. TIMES (Feb. 17, 2017, 4:00 AM), h t t p : / / w w w . l a t i m e s . c o m / o p i n i o n
/ o p – e d / l a – o e – w e l c h – i m m i g r a t i o n – e n f o r c e m e n t – o b a m a – t r u m p – 2 0 1 7 0 2 1 6 – s t o r y . h t m l [h t t p s : / / p e r m a . c c
/25YN-Y92Y].
2017] IMMIGRATION AND THE BULLY PULPIT 247
The picture that President Trump paints for his base is difficult to
square with the facts. The Obama Administration’s eight years saw
the deportation of over two million foreign nationals,16 the annual de-
tention of approximately 400,000 foreign nationals17 (and hundreds of
American citizens18), the exponential expansion of family immigration
detention centers,19 unprecedented levels of spending on border en-
forcement,20 and record prosecutions of immigration crimes.21 By ev-
ery measure, immigration enforcement reached its historic peak in the
Obama years. The Migration Policy Institute dubbed the resulting en-
forcement complex a “formidable machinery.”22 Why did this happen?
President Obama inherited an immigration enforcement system
that had been forged in two important moments. First, in 1996,
Congress passed and President William J. Clinton signed a series of
laws that amended the existing Immigration and Nationality Act23
(INA).24 These laws significantly narrowed existing pathways to legal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
16 See OFFICE OF IMMIGRATION STATISTICS, supra note 14, at 103 tbl.39.
17 Id.
18 See Eyder Peralta, You Say You’re an American, but What If You Had to Prove It or Be
Deported?, NPR: THE TWO-WAY (Dec. 22, 2016, 12:29 PM), http://www.npr.org/sections/thetwo
– w a y / 2 0 1 6 / 1 2 / 2 2 / 5 0 4 0 3 1 6 3 5 / y o u – s a y – y o u – r e – a n – a m e r i c a n – b u t – w h a t – i f – y o u – h a d – t o – p r o v e – i t – o r – b e
– d e p o r t e d [h t t p s : / / p e r m a . c c / U N 8 P – E H C 3] (reporting that “hundreds of American citizens each
year find themselves” in an immigration detention facility). Moreover, many U.S. citizens are
wrongly deported. Jacqueline Stevens, U.S. Government Unlawfully Detaining and Deporting
U.S. Citizens as Aliens, 18 VA. J. SOC. POL’Y & L. 606, 608 (2011); see also id. at 618–29 (report-
ing data on the incidence rate of such wrongful detention and deportation); Preface: Ace’s Story,
in CITIZENSHIP IN QUESTION: EVIDENTIARY BIRTHRIGHT AND STATELESSNESS
(Benjamin N. Lawrance & Jacqueline Stevens eds., 2017) (providing a first-person account of a
U.S. citizen wrongly deported).
19 See César Cuauhtémoc García Hernández, Migration Myths, Detention Realities,
CRIMMIGRATION (Nov. 11, 2014, 4:00 AM), http://crimmigration.com/2014/11/11/migration
-myths-detention-realities/ [https://perma.cc/X8T9-3XL3]; Wil S. Hylton, The Shame of America’s
Family Detention Camps, N.Y. TIMES MAG. (Feb. 4, 2015), https://www.nytimes.com/2015/02/08
/magazine/the-shame-of-americas-family-detention-camps.html [https://perma.cc/E7WH-SVNM].
20 DORIS MEISSNER ET AL., MIGRATION POLICY INST., IMMIGRATION ENFORCEMENT
IN THE UNITED STATES: THE RISE OF A FORMIDABLE MACHINERY 2 (2013),
http://www.migrationpolicy.org/pubs/enforcementpillars [https://perma.cc/NE2G-P8FC].
21 Id. at 93.
22 Id. passim; see also id. at 12 (“The nation has built a formidable immigration enforcement
machinery.”).
23 Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101–1537
(2012)).
24 Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (codified as amended in scattered sections of the U.S. Code); Personal Responsibility
and Work Opportunity Reconciliation Act (PRWORA) of 1996, Pub. L. No. 104-193, 110 Stat.
2105 (codified as amended in scattered sections of the U.S. Code); Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. No. 104-208, div. C, 110 Stat. 3009-546
(codified as amended in scattered sections of 8, 15, 18, and 28 U.S.C.).
248 HARVARD LAW REVIEW FORUM [Vol. 130:243
status25 and vastly expanded grounds for deportation and exclusion,
particularly those related to criminal convictions.26 These legal chang-
es generally left immigrants — including those lawfully present —
more vulnerable to deportation than at any point since the INA’s
overhaul in 1965.27
Second, President Obama inherited an immigration enforcement
bureaucracy funded and forged in the wake of September 11, 2001.
Immigration and Customs Enforcement (ICE) and Customs and Bor-
der Protection (CBP) were established during the previous Administra-
tion by President George W. Bush with an antiterrorism mandate.28
The rapid staffing that ensued in the period following the 2003 crea-
tion of the Department of Homeland Security produced new agencies
dominated by individuals with a particular enforcement mindset.29
These new hires had neither a bureaucratic nexus with nor interest in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
25 E.g., IIRIRA § 304(b), 110 Stat. at 3009-597 (repealing INA § 212(c)); IIRIRA sec. 304(a),
§ 240A, 110 Stat. at 3009-587 to -597 (replacing INA § 212(c) with the much more limited relief of
INA § 240A).
26 AEDPA § 440, 110 Stat. at 1276–79 (expanding the list of deportable offenses to include a
wide range of offenses including gambling, transportation related to prostitution, passport fraud,
and failure to appear at a judicial proceeding); IIRIRA sec. 321, § 101(a)(43), 110 Stat. at 3009-627
to -628 (codified as amended at 8 U.S.C. § 1101(a)(43) (2012)) (amending the INA aggravated felo-
ny definition to require lower threshold amounts for deportation, for money laundering and tax
evasion, and adding other deportable crimes).
27 See, e.g., Padilla v. Kentucky, 559 U.S. 356, 368 (2010) (discussing Congress’s elimination of
the Immigration and Nationality Act’s former section 212(c) and that section’s discretionary relief
for persons with criminal convictions); BILL ONG HING, DEPORTING OUR SOULS 52–87 (2006)
(describing the impact of the legal changes on particular individuals and communities); Jason A.
Cade, The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court, 34 CARDOZO L. REV.
1751, 1775–90 (2013); Daniel Kanstroom, Criminalizing the Undocumented: Ironic Boundaries of
the Post–September 11th “Pale of Law,” 29 N.C. J. INT’L L. & COM. REG. 639, 651–52 (2004);
Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal
Justice Norms, 64 WASH. & LEE L. REV. 469, 482–86 (2007); Teresa A. Miller, Blurring the
Boundaries Between Immigration and Crime Control After September 11th, 25 B.C. THIRD
WORLD L.J. 81, 112–22 (2005); Nancy Morawetz, Understanding the Impact of the 1996 Deporta-
tion Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936, 1938–41 (2000).
28 PRESIDENT GEORGE W. BUSH, THE DEPARTMENT OF HOMELAND SECURITY (2002),
h t t p s : / / w w w . d h s . g o v / s i t e s / d e f a u l t / f i l e s / p u b l i c a t i o n s / b o o k _ 0 . p d f [h t t p s : / / p e r m a . c c / 6 5 Y X – G 7 K J]
(proposing a Department of Homeland Security to deal with the “changing nature of the threats
facing America,” id. at 1); see also Homeland Security Act of 2002, Pub. L. No. 107-296, § 101,
116 Stat. 2135, 2142 (codified at 6 U.S.C. § 111 (2012)) (establishing the Department of Homeland
Security with the mission to “prevent terrorist attacks” and other functions related to “securing
the homeland”).
29 See Jennifer M. Chacón, Commentary, Unsecured Borders: Immigration Restrictions, Crime
Control and National Security, 39 CONN. L. REV. 1827, 1856 (2007) (questioning terrorism
justification for immigration policy); see also OFFICE OF INSPECTOR GEN., U.S. DEP’T OF
HOMELAND SEC., AN ASSESSMENT OF THE PROPOSAL TO MERGE CUSTOMS AND BOR-
DER PROTECTION WITH IMMIGRATION AND CUSTOMS ENFORCEMENT 119, 124 (2005),
https://www.oig.dhs.gov/assets/Mgmt/OIG_06-04_Nov05 [https://perma.cc/VB2S-UXC2] (de-
scribing, for example, CBP’s “priority on keeping terrorists and terrorist weapons from gaining
entry,” id. at 119, and ICE’s mission as “prevent[ing] acts of terrorism,” id. at 124).
2017] IMMIGRATION AND THE BULLY PULPIT 249
immigration services. And because rapid hiring forced a reduction in
hiring standards, some of these agents, particularly in CBP, over time
proved themselves incompetent, corrupt, or both.30
Assuming the presidency in the middle of the financial crisis, Presi-
dent Obama abandoned campaign promises to pursue a legislative
immigration reform solution, focusing his efforts instead on simple
economic stimulus and complex health care reform. Having achieved
that agenda, President Obama lost critical legislative support for his
reforms when the Democrats lost their majority in the House of Repre-
sentatives. In 2010, Republicans gained control of the House, and the
prospect of legislative immigration reform died.
Indeed, during the early Obama years, it sometimes seemed that
immigration enforcement proceeded on autopilot. High levels of de-
portation and detention, aggressive border enforcement, and work-
place raids continued apace in the transition from President George W.
Bush to President Obama. The Administration appeared to treat vig-
orous enforcement as a down payment on comprehensive immigration
reform — one that would convince skeptics that the Administration
could be trusted to enforce the laws when and if Congress enacted a
legalization scheme. Not only did this investment in enforcement fail
to persuade immigration skeptics to embrace reform, but it also argu-
ably backfired. By doubling down on the popular but factually bank-
rupt narrative that immigration enforcement was an integral part of
an effective public safety agenda, the Administration legitimated a
wrongheaded national approach to immigration as a crime and securi-
ty problem to be solved rather than as a largely positive phenomenon
in need of a more effective governing legal framework.
But the story of immigration policy in the Obama era is not a story
of constant, unexamined severity. It is a story of evolution. In re-
sponse to pressure from advocacy groups and consistent with the val-
ues of many of those working within the Administration itself, over
time President Obama’s immigration enforcement efforts reflected in-
creasing centralization and control, as well as an increasingly nuanced
approach to the selection of enforcement targets. Two examples illus-
trate the point.
First, over time, the Administration took increasingly seriously the
mounting evidence that federal delegation of enforcement powers to
state and local law enforcement agencies did nothing to enhance public
safety, but did fuel racial profiling and distrust between immigrant
communities and police. Internalizing the findings of academic studies
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
30 See Mica Rosenberg, Former Border Patrol Officials Question Trump Plan to Add Agents,
U.S. NEWS & WORLD REP. (Feb. 24, 2017, 1:24 PM), https://www.usnews.com/news/top
– n e w s / a r t i c l e s / 2 0 1 7 – 0 2 – 2 4 / f o r m e r – b o r d e r – p a t r o l – o f f i c i a l s – q u e s t i o n – t r u m p – p l a n – t o – a d d – a g e n t s
[https://perma.cc/L6B9-JH4K].
250 HARVARD LAW REVIEW FORUM [Vol. 130:243
and the information provided by immigrant advocates across the
country, the Administration scaled back its contracts with states and
localities that had allowed those sub-federal contractors to enforce
immigration law under section 287(g) of the INA.31 Concerns about
discrimination also prompted the Administration to oppose state en-
actments of purportedly complementary enforcement schemes.32 Ra-
ther than supporting sub-federal immigration enforcement efforts, the
Administration began investigations of local law enforcement agencies
whose overly zealous approaches to such enforcement thinly masked
discriminatory policing of Latino communities.33
Second, the Administration began to exercise its own enforcement
discretion more selectively in an effort to keep more immigrant com-
munities intact pending broader immigration reform. By 2014, the
Administration had set new and narrower enforcement priorities.34
Those enforcement priorities began to play an important role in de-
termining which arrestees were prioritized for removal. Prior to that
time, the Department of Homeland Security (DHS) had rolled out its
so-called “Secure Communities” program, whereby the fingerprints of
every arrestee in the country were run through a DHS database to
identify immigration violators.35 The Secure Communities program
generated heavy criticism from activists.36 Academics were also criti-
cal, finding that the program had no positive effects on public safety
and appeared to have been rolled out in a way that targeted jurisdic-
tions with large Latino populations first.37
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
31 8 U.S.C. § 1357(g) (2012).
32 See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2497–98 (2012).
33 See, e.g., Roy L. Austin, Jr., Deputy Assistant Att’y Gen., U.S. Dep’t of Justice, Speech at
the East Haven Police Department Investigative Findings Announcement (Dec. 19, 2011),
h t t p s : / / w w w . j u s t i c e . g o v / o p a / s p e e c h / d e p u t y – a s s i s t a n t – a t t o r n e y – g e n e r a l – r o y – l – a u s t i n – j r – s p e a k s – e a s t
-haven-police-department [https://perma.cc/A7NL-BXG2]; Letter from Thomas E. Perez,
Assistant Att’y Gen., U.S. Dep’t of Justice, to Bill Montgomery, Cty. Attorney, Maricopa Cty.
(Dec. 15, 2011), https://www.justice.gov/sites/default/files/crt/legacy/2011/12/15/mcso_findletter_12
-15-11 [https://perma.cc/H5G3-ZKGC].
34 See Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t of Homeland Sec., to U.S.
Immigration & Customs Enf’t, U.S. Customs & Border Prot., U.S. Citizenship & Immigration
Servs., et al., Policies for the Apprehension, Detention and Removal of Undocumented Immi-
grants (Nov. 20, 2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo
_prosecutorial_discretion [https://perma.cc/K854-45E8] [hereinafter Johnson Prosecutorial
Discretion Memo].
35 Secure Communities: Get the Facts, U.S. IMMIGR. & CUSTOMS ENFORCEMENT, https://
www.ice.gov/secure-communities [https://web.archive.org/web/20170126151120/https://www.ice.gov
/secure-communities] (last visited Jan. 26, 2017).
36 See, e.g., DHS’s “Secure Communities”: No Rules of the Road, NAT’L IMMIGR. L. CTR.
(Mar. 2011), h t t p s : / / w w w . n i l c . o r g / i s s u e s / i m m i g r a t i o n – e n f o r c e m e n t / s c o m m – n o – r u l e s – o f – r o a d – 2 0 1 1
-03-0/ [https://perma.cc/6A4C-NJUV].
37 See, e.g., Thomas J. Miles & Adam B. Cox, Does Immigration Enforcement Reduce Crime?
Evidence from Secure Communities, 57 J.L. & ECON. 937, 939, 948–49 (2014).
2017] IMMIGRATION AND THE BULLY PULPIT 251
Responding to criticisms, former DHS Secretary Johnson rolled
back the Secure Communities program, replacing it with the Priority
Enforcement Program (PEP).38 Arrests were still run through the da-
tabase in the same way under this program as under Secure Commu-
nities, but DHS was instructed not to act on the information unless an
individual was a priority for removal — hence priority enforcement.
Unless an individual had committed a serious crime, constituted a
threat to national security, or was a recent entrant, the individual
would not be prioritized for removal regardless of arrest.
Throughout this period, the Administration increasingly granted
parole and other forms of humanitarian relief to help qualifying indi-
viduals — particularly members of military families — normalize their
status where possible.39 But it was with the Deferred Action for
Childhood Arrivals (DACA) program that the Administration formal-
ized the exercise of prosecutorial discretion at the highest levels in
a very public way. The DACA program allowed qualifying individu-
als — immigrants who arrived as children, who had little to no crimi-
nal history, and who completed high school or its equivalent — to seek
a formal designation of deferred action.40 The Obama Administration
took advantage of a preexisting regulatory scheme that allowed de-
ferred action designees to access the benefits of work authorization and
social security numbers.41 This scheme allowed DACA designees to
work and drive lawfully, living in compliance with the law while
awaiting legislative reforms that might allow them to normalize their
immigration status. Notwithstanding the shortcomings of their liminal
legality,42 the positive effects of the DACA program on the lives of in-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
38 See Memorandum from Jeh Charles Johnson, Sec’y, Dep’t of Homeland Sec., to Thomas S.
Winkowski, Acting Dir., U.S. Immigration & Customs Enf’t, et al., Secure Communities (Nov. 20,
2014), https://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities
[https://perma.cc/24NW-ZGC6].
39 SHOBA SIVAPRASAD WADHIA, BEYOND DEPORTATION: THE ROLE OF PROSECUTO-
RIAL DISCRETION IN IMMIGRATION CASES 95–97 (2015) (discussing a 2011 memorandum
guiding the use of prosecutorial discretion, which included multiple provisions for service-
members and their families).
40 Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. CITIZENSHIP &
IMMIGRATION SERVS., h t t p s : / / w w w . u s c i s . g o v / h u m a n i t a r i a n / c o n s i d e r a t i o n – d e f e r r e d – a c t i o n
– c h i l d h o o d – a r r i v a l s – d a c a [https://perma.cc/2FKE-B6VE] (last updated Dec. 22, 2016).
41 See Anil Kalhan, Executive Action on Immigration and the Judicial Artifice of “Lawful
Presence,” DORF ON LAW (June 3, 2015, 9:10 PM), h t t p : / / w w w . d o r f o n l a w . o r g / 2 0 1 5 / 0 6 / e x e c u t i v e
– a c t i o n – o n – i m m i g r a t i o n – a n d . h t m l [h t t p s : / / p e r m a . c c / H 5 S N – F Y 3 F] (explaining the interaction of
deferred action status and other benefits permitted under the regulatory structure, including work
authorization).
42 Jennifer M. Chacón, Producing Liminal Legality, 92 DENV. L. REV. 709, 727–30 (2015) (de-
scribing the material and emotional toll of uncertainty and collecting related sources). Ongoing
research that I am doing with a research team funded by the National Science Foundation
provides further evidence of the costs of this legal uncertainty for DACA and potential DAPA
recipients.
252 HARVARD LAW REVIEW FORUM [Vol. 130:243
dividuals so designated, and upon the U.S. economy as a whole, are
well documented.43
The Administration’s attempt to sort immigrants into high and low
priority groups was certainly reassuring to some, but it was also inher-
ently troubled, relying as it did upon problematically constructed no-
tions of criminality.44 The most important categorical basis for a de-
termination that an immigrant was a high enforcement priority was,
and remains, that individual’s criminal record. It does not take much
of a criminal record to become a priority target for deportation. Crim-
inal grounds for removal have become so expansive that virtually any
controlled substance offense and a whole host of relatively minor of-
fenses (including those committed at a time when the offense was not
yet a deportable offense) will convert immigrants (including lawful
permanent residents) into “criminal aliens”45 with high-priority status
for removal.46 Under existing law, individuals who fit into these over-
broad categories have almost no way to argue for discretionary relief
from deportation once removal proceedings have been initiated.
Moreover, their criminal records arise in the context of a criminal jus-
tice system that overpolices and underprotects many immigrant com-
munities.47 Conduct that gets a warning on college campuses can get
you arrested, convicted, and deported in heavily policed, low-income
neighborhoods. The Obama Administration certainly did not invent
this longstanding false dichotomy of “good and bad immigrants,”48 but
arguably took insufficient steps to subvert it.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
43 See, e.g., TOM K. WONG, NAT’L IMMIGRATION LAW CTR. & CTR. FOR AM. PROGRESS,
NATIONAL SURVEY RESULTS (2015), h t t p s : / / c d n . a m e r i c a n p r o g r e s s . o r g / w p – c o n t e n t / u p l o a d s / 2 0 1 5
/ 0 7 / D A C A – W o n g _ N I L C _ C A P – C o d e b o o k – P D F . p d f [h t t p s : / / p e r m a . c c / 5 Y G E – 2 J F M]; Roberto G.
Gonzales et al., Becoming DACAmented: Assessing the Short-Term Benefits of Deferred Action for
Childhood Arrivals (DACA), 58 AM. BEHAV. SCIENTIST 1852, 1866 (2014) (finding that DACA
beneficiaries had “experienced greater access to U.S. institutions” and “overcome . . . elements of
exclusion”).
44 Chacón, supra note 29, at 1840–48 (analyzing how the rhetoric of migrant criminality
morphs into an all-encompassing descriptor for immigrants); see Angélica Cházaro, Challenging
the “Criminal Alien” Paradigm, 63 UCLA L. REV. 594, 658–59 (2016) (rejecting facile distinctions
between “criminal aliens” and other immigrants).
45 Chacón, supra note 29, at 1843–48.
46 See Johnson Prosecutorial Discretion Memo, supra note 34.
47 Kevin R. Johnson, Racial Profiling in the War on Drugs Meets the Immigration Removal
Process: The Case of Moncrieffe v. Holder, 48 U. MICH. J.L. REFORM 967, 968–69 (2015) (noting
the layering effect of a racially skewed criminal justice system upon a harsh and overinclusive
removal system); see also TANYA MARIA GOLASH-BOZA, DEPORTED: IMMIGRANT POLICING,
DISPOSABLE LABOR, AND GLOBAL CAPITALISM 9–11 (2015); Amna Akbar, Policing “Radicali-
zation,” 3 U.C. IRVINE L. REV. 809, 853–59 (2013) (discussing the targeting of Muslim immigrant
communities for heightened surveillance and policing).
48 Elliot Young, Felons and Families, UNC PRESS BLOG (Apr. 3, 2017, 9:00 AM), http://
uncpressblog.com/2017/04/03/elliott-young-felons-and-families/ [https://perma.cc/MQB7-3L5L].
2017] IMMIGRATION AND THE BULLY PULPIT 253
Recent arrivals were also a priority for removal under President
Obama.49 The Obama Administration therefore pursued policies met-
ing out harsh treatment, including family detention, for Central
Americans who arrived in the period from 2013–2016, fleeing a wave
of heightened violence in the Northern Triangle countries.50 The re-
sulting enforcement efforts had negative effects upon a broad swath of
the Central American immigrant community, who were fearful that
the targeting of recent arrivals jeopardized even well-established im-
migrants.51 Their concerns exposed the difficulties of drawing lines
between “good” immigrants and “bad” and between “settled” popula-
tions and “recent” arrivals in a world where the fates of transnational
families are so imperfectly sliced and diced by U.S. immigration
categories.
Thus, as is often the case, President Obama’s neatly organized pa-
per priorities were messy on the ground. In November 2014, when he
announced his intention to extend his deferred action program to a
broader band of young arrivals and to the parents of U.S. citizens and
lawful permanent residents (the DAPA program), he stressed the need
to target for deportation “[f]elons, not families. Criminals, not chil-
dren. Gang members, not a mom who’s working hard to provide for
her kids.”52 But felons are part of families, and mothers working hard
to provide for their kids can easily be classified as “associates” of gang
members. At the same time, the Administration’s practice of detaining
recent arrivals to “deter” the northbound flight of other desperate
families in Guatemala, El Salvador, and Honduras meant detaining
families on U.S. soil at a scale not seen since the Japanese internment
of World War II.
To the end, the Obama Administration was hampered by the in-
transigence of a political minority that repeatedly blocked popular
comprehensive immigration reform measures from even coming to a
vote in Congress and that froze the DAPA program — by far the bold-
est of the Administration’s executive relief plans — in the courts. This
left all of the intended DAPA recipients vulnerable to removal
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
49 Johnson Prosecutorial Discretion Memo, supra note 34.
50 Suzanne Gamboa, Central Americans Picked up in Raids Get Deportation Pause, NBC
NEWS (Jan. 6, 2016, 9:28 PM), h t t p : / / w w w . n b c n e w s . c o m / n e w s / l a t i n o / c e n t r a l – a m e r i c a n s – p i c k e d
-raids-get-deportation-pause-n491246 [https://perma.cc/4GD9-K8C7].
51 See Elena Shore, Raids on Central American Families Spark Fear in S.F., NEW AM. ME-
DIA (Jan. 7, 2016), h t t p : / / n e w a m e r i c a m e d i a . o r g / 2 0 1 6 / 0 1 / r a i d s – o n – c e n t r a l – a m e r i c a n – f a m i l i e s – s p a r k
-fear-in-sf.php [https://perma.cc/25AZ-AN2G]; see also Jose Torres, Mobilization Strategies With-
in the Immigrant Rights Movement in Los Angeles (unpublished manuscript) (on file with the
Harvard Law School Library) (containing ethnographic accounts of the impact of enforcement
policies on Central American families in the Southern California area).
52 President Barack Obama, Remarks by the President in Address to the Nation on Immigra-
tion (Nov. 20, 2014, 8:01 PM), https://obamawhitehouse.archives.gov/the-press-office/2014/11/20
/remarks-president-address-nation-immigration [https://perma.cc/9MDC-4HCK].
254 HARVARD LAW REVIEW FORUM [Vol. 130:243
throughout the Obama presidency, notwithstanding the revised priori-
ty categories and rhetoric that promised to protect “families.” In gen-
eral, however, long-term residents who — through some combination
of virtue and luck — managed to avoid contact with law enforcement
in the Obama era had official assurance that they were unlikely to be a
priority for deportation. As they had for decades, they shouldered the
hardships of living without official recognition as a fact of life. Since
Donald J. Trump assumed the Presidency, their situation has changed
for the worse.
II. REPEATING HISTORY
In contrast to the Obama Administration, President Trump’s
Administration has not attempted to soothe the fears of long-term resi-
dents who are out of status or otherwise removable. To the contrary,
the new Administration’s strategy seems intentionally designed to
stoke the insecurity of immigrant communities. In his first two weeks
in office, President Trump and his Department of Homeland Security
issued executive orders and memoranda that called for a temporary
ban on the admission of certain foreign nationals and almost all in-
coming refugees,53 the addition of 15,000 new CBP and ICE agents,54
the broad extension of streamlined removal processes to many individ-
uals formerly given more robust immigration court hearings,55 the
greatly expanded use of immigration detention,56 the extension of pri-
ority removal status to many immigrants not covered by the Obama
Administration’s priorities,57 federal funding cuts for jurisdictions that
decline to cooperate with federal enforcement initiatives,58 increased
delegation of immigration enforcement powers to state and local law
enforcement agents,59 and an exploratory study of the construction of a
wall on the U.S.-Mexico border.60
The early orders and memos from the Trump Administration
aligned with President Trump’s campaign rhetoric. “[W]e have some
bad hombres here and we’re going to get them out,”61 he promised
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
53 Ban E.O. I, supra note 5.
54 Border Enforcement E.O., supra note 7, § 8 (calling for the addition of 5000 Border Patrol
agents); Interior Enforcement E.O., supra note 7, § 7 (calling for the addition of 10,000 ICE
officers).
55 Border Enforcement E.O., supra note 7, § 11(c); Kelly Enforcement Memo, supra note 8, at 3.
56 Border Enforcement E.O., supra note 7, § 6.
57 See Interior Enforcement E.O., supra note 7, § 5; Kelly Enforcement Memo, supra note 8,
at 1–2.
58 Interior Enforcement E.O., supra note 7, § 9.
59 Id. § 8; Kelly Enforcement Memo, supra note 8, at 3–4.
60 Border Enforcement E.O., supra note 7, § 4.
61 Donald Trump: We Need to Get out ‘Bad Hombres’, CNN (Oct. 19, 2016), http://www
. c n n . c o m / v i d e o s / p o l i t i c s / 2 0 1 6 / 1 0 / 1 9 / t h i r d – p r e s i d e n t i a l – d e b a t e – t r u m p – i m m i g r a t i o n – b a d – h o m b r e s
2017] IMMIGRATION AND THE BULLY PULPIT 255
during a debate in the fall of 2016. This deliberately racialized state-
ment62 indicated President Trump’s intention to deport some subset of
the unauthorized immigrant population — the “bad hombres” — and
then (perhaps) to figure out what to do with the rest. President
Trump’s intention to sort good and bad immigrants was also reflected
in his statement, made immediately after the election in a Time inter-
view, that, notwithstanding his repeated campaign promise to revoke
DACA on day one, he now plans to try to “work something out” for
deserving immigrant youth that will “make people happy and
proud.”63
Because his language signals some intention to exercise enforce-
ment discretion, his policies have been analogized to President
Obama’s. The analogy is not entirely wrong, and President Obama’s
uncritical rhetorical use of the good/bad dichotomy has paved the way
for President Trump’s own rhetoric and policies. But the numbers
that President Trump cited in the lead-up to his inauguration suggest-
ed that he would not be sticking to the Obama-era script when it came
to defining his deportation priorities, and the deviations are at least as
significant as the continuities.
In the weeks leading up to his inauguration, President Trump stat-
ed that he intended to remove two to three million noncitizens in his
first year in office.64 This extraordinary number far exceeds the num-
ber of unauthorized migrants with criminal convictions. Estimates by
the Migration Policy Institute suggest that there are only about
820,000 noncitizens with criminal convictions that render them remov-
able.65 Many of those individuals are not actually “bad hombres” ei-
ther. Some have recently committed youthful indiscretions, whereas
others have decades-old convictions, but now have steady jobs, U.S.
citizen children, and even histories of U.S. military service. All of the-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
– s o t . c n n [h t t p s : / / p e r m a . c c / D W 5 K – R 4 S N]. Trump’s use of Spanish not-so-subtly telegraphed the
notion that he believed these individuals would be Latino.
62 On the racial disproportionality of removals, see GOLASH-BOZA, supra note 47.
63 Michael Scherer, 2016 Person of the Year: Donald Trump, TIME, http://time.com/time
-person-of-the-year-2016-donald-trump/ [https://perma.cc/B3YR-6RNE]; see also 60 Minutes:
President-Elect Trump Speaks to a Divided Country (CBS television broadcast Nov. 13, 2016),
h t t p : / / w w w . c b s n e w s . c o m / n e w s / 6 0 – m i n u t e s – d o n a l d – t r u m p – f a m i l y – m e l a n i a – i v a n k a – l e s l e y – s t a h l /
[https://perma.cc/6BXY-38Y5] (discussing his willingness to possibly seek a solution for the “terrif-
ic people” covered by DACA).
64 Amy B. Wang, Donald Trump Plans to Immediately Deport 2 Million to 3 Million Undocu-
mented Immigrants, WASH. POST (Nov. 14, 2016), https://www.washingtonpost.com/news
/ t h e – f i x / w p / 2 0 1 6 / 1 1 / 1 3 / d o n a l d – t r u m p – p l a n s – t o – i m m e d i a t e l y – d e p o r t – 2 – t o – 3 – m i l l i o n – u n d o c u m e n t e d
-immigrants/ [https://perma.cc/UHD2-ZLWL].
65 Muzaffar Chishti & Michelle Mittelstadt, Unauthorized Immigrants with Criminal Convic-
tions: Who Might Be a Priority for Removal?, MIGRATION POL’Y INST. (Nov. 2016), http://www
. m i g r a t i o n p o l i c y . o r g / n e w s / u n a u t h o r i z e d – i m m i g r a n t s – c r i m i n a l – c o n v i c t i o n s – w h o – m i g h t – b e – p r i o r i t y
-removal [https://perma.cc/Z5FF-FKUS].
256 HARVARD LAW REVIEW FORUM [Vol. 130:243
se individuals would need to be counted among the “bad hombres” in
a drive to reach deportation figures of two to three million, and even
that would not be enough.
Satisfying this high deportation target number would also require
the removal of individuals without criminal records but who have had
any contact with law enforcement.66 President Trump’s new enforce-
ment priorities and restoration of the Secure Communities program
will facilitate such removals. Deportation priorities are no longer de-
fined in terms of serious criminal convictions.67 Anyone who has been
arrested, anyone who has committed any conduct that could be the ba-
sis of a criminal prosecution, and anyone who has been identified as
being associated with a gang is now a priority for removal.68 The Pri-
ority Enforcement Program died two deaths under these new policies.
First, the Interior Enforcement order and its implementing memoran-
dum made PEP a practical impossibility insofar as all arrestees are
now a priority for removal under the new list of deportation priori-
ties.69 Still, lest there be any confusion, the Kelly enforcement memo
also expressly rescinded PEP and restored Secure Communities.70 As
a practical matter, this express recission is unnecessary since all ar-
restees are now priorities under the executive order, but the restoration
of an Obama-era program that was the bête noire of immigrant justice
advocates does important symbolic work in conveying the new Admin-
istration’s message of toughness unencumbered by the accumulated ev-
idence of Secure Communities’ past failings.71 The new priorities also
undercut the security of the DACA program. The new removal “prior-
ities” are already being used to justify the detention and possible re-
moval of DACA recipients on the basis of unsubstantiated charges of
gang membership and low-level contact with law enforcement.72 In
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
66 Madeline Conway, Kris Kobach Explains Trump’s Immigration Math, POLITICO (Nov. 15,
2016, 2:11 PM), http://www.politico.com/story/2016/11/kris-kobach-trump-immigration-231430
[https://perma.cc/YTS7-DT9S] (noting that Trump surrogate Kris Kobach stated the order was
intended to include “those arrested but not yet convicted in some cases”).
67 Interior Enforcement E.O., supra note 7, § 5; Kelly Enforcement Memo, supra note 8, at 1–2.
68 Kelly Enforcement Memo, supra note 8, at 2.
69 Interior Enforcement E.O., supra note 7, § 5; Kelly Enforcement Memo, supra note 8, at 2.
70 Kelly Enforcement Memo, supra note 8, at 3.
71 See Miles & Cox, supra note 37, at 969–70.
72 See, e.g., Andrea Martinez, San Antonio DACA Recipient Released from ICE Custody Days
After Arrest, KENS 5 EYEWITNESS NEWS (Feb. 16, 2017, 10:11 PM), http://www.kens5.com
/news/san-antonio-daca-recipient-arrested-facing-deportation/409094058 [https://perma.cc/J3Z3
-SPPT] (discussing ICE’s detention and release of DACA recipient Josue Romero on the basis of
alleged possession of less than two ounces of marijuana); Mike Carter, Seattle ‘Dreamer’ Sues over
His Detention Under Trump’s Immigration Actions, SEATTLE TIMES, (Feb. 14, 2017, 8:29 PM),
h t t p : / / w w w . s e a t t l e t i m e s . c o m / s e a t t l e – n e w s / s e a t t l e – d r e a m e r – s u e s – o v e r – d e t e n t i o n – u n d e r – t r u m p /
[https://perma.cc/H7X5-GXAP] (quoting attorney of DACA recipient Daniel Ramirez Medina,
who was arrested and detained based on his purported gang membership, denying the charge);
DACA Recipient Detained by U.S. Immigration Authorities, NPR (Feb. 15, 2017, 4:29 PM),
2017] IMMIGRATION AND THE BULLY PULPIT 257
the first three months of his presidency, the number of immigration ar-
rests of foreign nationals with no criminal convictions doubled as
compared to the same period last year.73
Much about the recent executive orders and memos on immigration
enforcement reflects a likeminded preference for sending a threatening
message of enforcement severity to immigrant communities at the ex-
pense of considerations of legality and efficacy. Four additional exam-
ples help to illustrate the point: the flawed travel bans of January and
March, the proposed expansion of administrative removals, the pro-
posed expansion of immigration detention, and the proposed devolu-
tion of enforcement authority. Each of these proposals signals a severi-
ty that will generate fear in immigrant communities. At the same
time, each also reflects an unwillingness to internalize past lessons and
to respect established legal limits on executive authority. Indeed, each
example demonstrates how the new Administration relies on inflated
rhetoric to promote enforcement practices that exceed formal legal au-
thority but take on a quasi-legal character because of their widespread
and unchecked nature.74
A. The Flawed Travel Bans
On January 27, the Administration announced that, for ninety
days, it would exclude all incoming foreign nationals of seven predom-
inantly Muslim countries.75 The Administration also proposed a ban
on the admission of all Syrian refugees and a 120-day ban on the ad-
mission of all refugees, with the exception of individuals of minority
religions in predominantly Muslim countries.76 This ban was mes-
saged differently by Trump and his surrogates to different audienc-
es — to supporters, it was the promised Muslim ban, but to courts, it
was not.77
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
h t t p : / / w w w . n p r . o r g / 2 0 1 7 / 0 2 / 1 5 / 5 1 5 4 4 1 7 4 4 / d a c a – r e c i p i e n t – d e t a i n e d – b y – u – s – i m m i g r a t i o n – a u t h o r i t i e s
[https://perma.cc/R2XZ-HVNS] (same).
73 Maria Sacchetti, ICE Immigration Arrests of Noncriminals Double Under Trump, WASH.
POST (Apr. 16, 2017), https://www.washingtonpost.com/local/immigration-arrests-of-noncriminals
-double-under-trump/2017/04/16/98a2f1e2-2096-11e7-be2a-3a1fb24d4671_story.html [https://
perma.cc/AMS6-VUG2].
74 On the importance of centering discussions of such enforcement practices, which the au-
thors label “paralegal,” see Inés Valdez et al., Missing in Action: Practice, Paralegality, and the
Nature of Immigration Enforcement, 21 CITIZENSHIP STUD. (forthcoming 2017), http://dx.doi
.org/10.1080/13621025.2016.1277980.
75 Ban E.O. I, supra note 5.
76 Id.
77 For example, Trump stated on Facebook that the order was “not a Muslim ban.” Donald J.
Trump, Statement Regarding Recent Executive Order Concerning Extreme Vetting, FACEBOOK
(Jan. 29, 2017), https://www.facebook.com/DonaldTrump/posts/10158567643610725 [https://perma
.cc/MD8K-JKKY]. However, in July 2016, Trump stated that his focus on territories rather than
religion was not a “rollback” of his Muslim ban proposal. Meet the Press — July 24, 2016, NBC
258 HARVARD LAW REVIEW FORUM [Vol. 130:243
To enact the ban on the nationals of the seven listed countries,
Trump invoked his power under section 212(f) of the INA.78 The pro-
vision does give the President broad authority to ban categories of for-
eign nationals from the country for security reasons, but the strategy
here suffered from three problems. First, section 212 had never before
been applied anywhere near as broadly as Trump’s seven-country
ban.79 The application of the ban to these countries arguably undercut
the equal treatment that the INA extends to foreign nationals of all na-
tions80 and exceeded the President’s authority.81 Second, the purport-
ed security rationale for the ban was not adequately substantiated; in-
deed, it was questioned by the Department of Homeland Security
itself.82 Finally, there was ample evidence that the ban was meant to
effectuate Trump’s Muslim ban and, as such, reflected impermissible
and irrational religious animus.83 The problems with the order
prompted several courts to prevent the ban from going into place, at
least temporarily.84
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
NEWS (Jul. 24, 2016, 11:47 AM), http://www.nbcnews.com/meet-the-press/meet-press-july-24
-2016-n615706 [https://perma.cc/YLH5-R9AY] (“I actually don’t think it’s a rollback. In fact, you
could say it’s an expansion. I’m looking now at territories. People were so upset when I used the
word Muslim. Oh, you can’t use the word Muslim.”).
78 8 U.S.C. § 1182(f) (2012).
79 See generally KATE M. MANUEL, CONG. RESEARCH SERV., R44743, EXECUTIVE AU-
THORITY TO EXCLUDE ALIENS: IN BRIEF (2017).
80 David J. Bier, Opinion, Trump’s Immigration Ban Is Illegal, N.Y. TIMES (Jan. 27, 2017),
h t t p s : / / w w w . n y t i m e s . c o m / 2 0 1 7 / 0 1 / 2 7 / o p i n i o n / t r u m p s – i m m i g r a t i o n – b a n – i s – i l l e g a l . h t m l [h t t p s : / /
perma.cc/FEU4-9WGP]. Of course, the Supreme Court has never struck down an immigration
enforcement order or an act of Congress concerning immigration on equal protection grounds.
81 Jeffrey Gorsky, An Alternative Legal Argument Against Trump’s Travel Ban, LAW360 (Apr.
10, 2017, 1:29 PM), h t t p s : / / w w w . l a w 3 6 0 . c o m / i m m i g r a t i o n / a r t i c l e s / 9 1 1 7 4 4 / a n – a l t e r n a t i v e – l e g a l
-argument-against-trump-s-travel-ban [https://perma.cc/CTY4-KE9G].
82 Matt Zapotosky, DHS Report Casts Doubt on Need for Trump Travel Ban, WASH. POST
(Feb. 24, 2017), https://www.washingtonpost.com/world/national-security/dhs-report-casts-doubt
– o n – n e e d – f o r – t r u m p – t r a v e l – b a n / 2 0 1 7 / 0 2 / 2 4 / 2 a 9 9 9 2 e 4 – f a d c – 1 1 e 6 – 9 8 4 5 – 5 7 6 c 6 9 0 8 1 5 1 8 _ s t o r y . h t m l
[https://perma.cc/4EFQ-ZP54]; see also Washington v. Trump, No. C17-0141JLR, 2017 WL
462040, at *2 (W.D. Wash. Feb. 3, 2017) (temporarily preventing the Administration from imple-
menting the travel ban based in part on a rejection of the purported security rationale);
Washington v. Trump, 847 F.3d 1151, 1156 (9th Cir. 2017) (per curiam) (upholding the district
court’s temporary restraining order and denying the government’s emergency motion for a stay).
83 See William Saletan, Donald Trump Doesn’t Care If You Think He Wants to Ban Muslims,
SLATE (Dec. 22, 2016), http://www.slate.com/articles/news_and_politics/politics/2016/12/donald
_ t r u m p _ d o e s n _ t _ c a r e _ i f _ y o u _ t h i n k _ h e _ w a n t s _ t o _ b a n _ m u s l i m s . h t m l [h t t p s : / / p e r m a . c c / G J 5 G
-AHJN].
84 See, e.g., Int’l Refugee Assistance Project v. Trump, No. 8:17-cv-00361-TDC, 2017 WL
1018235 (D. Md. Mar. 16, 2017); Aziz v. Trump, No. 1:17-cv-00116, 2017 WL 580855 (E.D. Va.
Feb. 13, 2017); Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3,
2017), emergency stay denied, 847 F.3d. 1151 (9th Cir. 2017); Darweesh v. Trump, No. 17 Civ. 480
(AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Mohammed v. United States, No. 2:17-cv-
00786, 2017 WL 438750 (C.D. Cal. Jan. 31, 2017). But see Louhghalam v. Trump, No. 17-cv-
10154, 2017 WL 479779 (D. Mass. Feb. 3, 2017) (denying extension of temporary restraining or-
der).
2017] IMMIGRATION AND THE BULLY PULPIT 259
The mechanics of the ban also raised legal questions. Most signifi-
cantly, the ban initially applied not just to individuals arriving for the
first time but to long-term holders of nonimmigrant visas and, most
surprisingly, to lawful permanent residents (LPRs).85 As any student
of immigration law could have informed President Trump, compared
to other arriving immigrants, LPRs, particularly those returning from
a brief stay abroad, are entitled under clearly established law to a
more robust process than the summary exclusion to which many of
them were subjected.86 Consultation with career lawyers in DHS sure-
ly would have exposed such technical problems with the order. But
such lawyers were apparently not consulted, and it took a full two
days for Secretary of Homeland Security John Kelly to issue a “waiv-
er” for LPRs, and a few more days to announce that the ban did not
apply to LPRs at all.87 This “clarification” occurred only after litigants
had already successfully sought injunctions for this aspect of the ban
in court.
Troublingly, even after courts acted to enjoin the ban, some CBP
agents still enforced it because their marching orders from Washington
were not entirely clear.88 It is unsettling that a document so plainly at
odds with existing law was allowed to go into effect at all. It is even
more unsettling that agents newly empowered to exercise harsh en-
forcement discretion were not responsive to court orders when that
discretion was deemed potentially unconstitutional. This episode pain-
fully highlighted the very real, on-the-ground effects of overblown en-
forcement rhetoric.
The Administration ultimately withdrew the travel ban order with
the promise that a new order was in the works.89 On March 6, 2017,
the Administration released an updated travel order90 — the new order
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
85 See generally Ban E.O. I, supra note 5.
86 See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) (requiring that a returning lawful per-
manent resident be given more robust procedures than those to which an arriving foreign national
is entitled); Rosenberg v. Fleuti, 374 U.S. 449, 461 (1963) (declining to apply exclusion grounds to
a lawful permanent resident returning after a trip that was “innocent, casual, and brief”).
87 Noah Bierman, Trump Administration Further Clarifies Travel Ban, Exempting Green Card
Holders, L.A. TIMES (Feb. 1, 2017, 12:45 PM), http://www.latimes.com/politics/washington/la-na
– e s s e n t i a l – w a s h i n g t o n – u p d a t e s – t r u m p – a d m i n i s t r a t i o n – f u r t h e r – c l a r i f i e s – 1 4 8 5 9 7 9 3 3 0 – h t m l s t o r y . h t m l
[https://perma.cc/53MK-NX62].
88 Edward Helmore & Alan Yuhas, Border Agents Defy Courts on Trump Travel Ban, Con-
gressmen and Lawyers Say, THE GUARDIAN (Jan. 30, 2017, 3:57 PM), https://www
. t h e g u a r d i a n . c o m / u s – n e w s / 2 0 1 7 / j a n / 2 9 / c u s t o m s – b o r d e r – p r o t e c t i o n – a g e n t s – t r u m p – m u s l i m – c o u n t r y
– t r a v e l – b a n [h t t p s : / / p e r m a . c c / S M R 4 – Q 9 S 6]. This revelation prompted some frenzied speculation
on whether the nation was facing a constitutional crisis.
89 Jaweed Kaleem & Maura Dolan, Trump Says He’ll Repeal Travel Ban, Replace It With a
New One Next Week That’s ‘Tailored’ to Court Decisions, L.A. TIMES (Feb. 16, 2017, 11:52 AM),
h t t p : / / w w w . l a t i m e s . c o m / p o l i t i c s / w a s h i n g t o n / l a – n a – e s s e n t i a l – w a s h i n g t o n – u p d a t e s – t r u m p – s a y s – h e
-will-repeal-travel-ban-1487273979-htmlstory.html [https://perma.cc/RV8Y-EC29].
90 See Ban E.O. II, supra note 6.
260 HARVARD LAW REVIEW FORUM [Vol. 130:243
dropped Iraq from the list of excluded countries, “exempt[ed] perma-
nent residents and current visa holders, and drop[ped] language offer-
ing preferential status to persecuted religious minorities.”91 Before the
revised ban could go into effect, two federal district courts issued tem-
porary restraining orders.92 Despite the Administration’s changes to
the scope and operation of the ban, these courts concluded that the
plaintiffs challenging the ban had made a sufficient showing that the
new ban, like the old ban, was primarily motivated by impermissible
anti-Muslim animus.93
B. Administrative Removals
Trump’s travel ban has received the greatest attention, but his less-
examined January 25 orders94 raise a number of other legal questions.
One of the most pressing is the question of whether Trump’s plan to
expand an administrative removal measure known as expedited re-
moval to a broad swath of the unauthorized population is lawful.
The expedited removal provision of the INA specifies that an im-
migration officer “shall order” foreign nationals without appropriate
entry documents “removed from the United States without further
hearing or review unless the alien indicates either an intention to apply
for asylum under section [208 of the INA] or a fear of persecution.”95
That is, unless the individual — generally unrepresented during this
interaction with the agent96 — asserts a fear of persecution, she can be
ordered removed without any additional process. She can be detained
throughout the process, and there is no statutory right to judicial re-
view if an individual is determined to be inadmissible absent a claim
for asylum in these proceedings.97
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
91 Glenn Thrush, Trump’s New Travel Ban Blocks Migrants From Six Nations, Sparing Iraq,
N.Y. TIMES (Mar. 6, 2017), https://www.nytimes.com/2017/03/06/us/politics/travel-ban-muslim
-trump.html [https://perma.cc/TG9Q-3LX7].
92 See Int’l Refugee Assistance Project v. Trump., No. 8:17-cv-00361-TDC, 2017 WL 1018235,
at *18 (D. Md. Mar. 16, 2017); Hawaiʻi v. Trump, No. 1:17-cv-00050, 2017 WL 1011673, at *17
(D. Haw. Mar. 15, 2017).
93 See Int’l Refugee Assistance Project, 2017 WL 1018235, at *13; Hawai̒ i, 2017 WL 1011673,
at *14.
94 See Border Enforcement E.O., supra note 7; Interior Enforcement E.O., supra note 7.
95 Immigration and Nationality Act § 235(b)(1)(A)(i), 8 U.S.C. § 1225(b)(1)(A)(i) (2012).
96 Recently, the Ninth Circuit held that an individual in expedited removal proceedings was
not entitled to counsel. United States v. Peralta-Sanchez, 847 F.3d 1124, 1134 (9th Cir. 2017).
Courts should reconsider this case and similar rulings and, in all events, read them narrowly, lest
they open up a procedural black hole for the substantial number of residents subject to expedited
removal by the terms of President Trump’s Executive Order, particularly when read in connection
with the Third Circuit’s recent decision in Castro v. DHS, discussed infra at notes 103–07 and
accompanying text.
97 8 U.S.C. § 1225(b)(1)(A)(i) (vesting authority in immigration officers “without further hear-
ing or review”).
2017] IMMIGRATION AND THE BULLY PULPIT 261
The statute allows for expedited removal of anyone who cannot es-
tablish that they have been present in the United States for at least
two years, in the sole discretion of the Secretary of Homeland Securi-
ty.98 But no administration to date has applied the provision so broad-
ly, and former officials, including Julie Myers Wood, who directed ICE
under President George W. Bush, have suggested that they avoided do-
ing so out of concern that a broader application of the law would raise
constitutional due process problems.99 To date, expedited removal has
been applied only in cases involving individuals at ports of entry, those
who arrived by sea and are encountered by the government within
two years,100 and those who are encountered within 100 miles of an in-
ternational land border and within fourteen days of entering the coun-
try.101 The idea of removing a resident of up to two years with no
hearing before an immigration judge raises significant constitutional
concerns. Courts will be asked to review the constitutionality of the
expedited removal if the Administration applies it so expansively.102
To operate as an effective check on administrative excesses, howev-
er, courts may need to reassert their power to do so. Recently, when a
group of Central American migrants detained in U.S. detention centers
in Texas and Pennsylvania argued that this absence of recourse to the
courts under section 235 — the expedited removal provision — consti-
tuted an unconstitutional violation of the Suspension Clause,103 the
Third Circuit held that the Suspension Clause does not protect
them.104 The decision was unprecedented, and seems contrary to es-
tablished law.105 If left in place, this decision will strip arriving for-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
98 Id. § 1225(b)(1)(A)(iii)(II); 8 C.F.R. § 235.3(b)(1)(ii) (2016).
99 Alan Gomez, Trump’s Quick Deportation Plan May Be Illegal, Past Immigration Chiefs Say,
USA TODAY (Feb. 26, 2017, 1:00 PM), h t t p : / / w w w . u s a t o d a y . c o m / s t o r y / n e w s / n a t i o n / 2 0 1 7 / 0 2
/ 2 4 / p r e s i d e n t – t r u m p s – e x p e d i t e d – r e m o v a l – p l a n – m a y – b e – i l l e g a l / 9 8 2 7 6 0 7 8 / [h t t p s : / / p e r m a . c c / W F 3 3
-P4T4].
100 Notice Designating Aliens Subject to Expedited Removal Under Section 235(b)(1)(A)(iii) of
the Immigration and Nationality Act, 67 Fed. Reg. 68924 (Nov. 13, 2002).
101 Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,879 (Aug. 11, 2004)
(“[T]his notice applies only to aliens encountered within 14 days of entry without inspection and
within 100 air miles of any U.S. international land border.”).
102 INA section 242 provides a brief window for raising this kind of constitutional challenge. 8
U.S.C. § 1252(e)(3). Some due process questions about expedited removal are currently being liti-
gated in the Ninth Circuit. See Appellant’s Petition for Panel Rehearing and Suggestion for Re-
hearing En Banc at 5, United States v. Peralta-Sanchez, 847 F.3d 1124 (9th Cir. Apr. 7, 2017)
(Nos. 14-50393, 14-50394).
103 U.S. CONST. art. I, § 9, cl. 2.
104 Castro v. U.S. Dep’t of Homeland Sec., 835 F.3d 422, 425 (3d Cir. 2016), cert. denied, 2017
WL 1366739 (U.S. Apr. 17, 2017).
105 See, e.g., Boumediene v. Bush, 553 U.S. 723, 755, 771 (2008) (concluding that the Suspension
Clause protects foreign nationals designated enemy combatants and detained in a place over
which the United States has de facto, if not de jure, sovereignty).
262 HARVARD LAW REVIEW FORUM [Vol. 130:243
eign nationals of any court protections as they are detained106 and
their cases are processed by federal administrative agents at the bor-
der. Given the substantial expansion of section 235 procedures envi-
sioned by President Trump’s recent orders, the threat of the elimina-
tion of judicial review in this context is troubling, particularly in light
of the lack of counsel — and perhaps of a right to counsel — in these
proceedings.107
In Shaughnessy v. Mezei,108 the Court upheld the indefinite deten-
tion of a long-time resident on the basis of secret evidence in adminis-
trative exclusion proceedings.109 But even in that case, the Court not-
ed that the requirements of due process applied to foreign nationals
“who have once passed through our gates, even illegally.”110 The mod-
ern specter of mass detention and removal of established residents
without a judicial backstop may push courts to expand upon the open-
ing created by Landon v. Plasencia111 to review the process in exclu-
sion proceedings for constitutional adequacy.
C. Expanded Immigration Detention
As with expedited removal, the Immigration and Nationality Act
authorizes detention — sometimes discretionary, and sometimes man-
datory — for individuals in standard exclusion and deportation pro-
ceedings.112 Congress’s addition of an expansive mandatory detention
provision to the statute in 1996113 fueled the rapid expansion of the
immigration detention system in the United States.114 This system is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
106 The statute mandates detention throughout the process. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV)
(“Any alien subject to the procedures under this clause shall be detained pending a final determi-
nation of credible fear of persecution and, if found not to have such a fear, until removed.”).
107 See supra note 96 (discussing United States v. Peralta-Sanchez, 847 F.3d 1124 (9th Cir.
2017)).
108 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).
109 Id. at 215–16.
110 Id. at 212.
111 459 U.S. 21 (1982).
112 Immigration and Nationality Act § 236, 8 U.S.C. § 1226 (2012).
113 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L.
No. 104-208, div. C, sec. 303(a), § 236(c), 110 Stat. 3009-546, 3009-585 (codified as amended at 8
U.S.C. § 1226(c)).
114 Geoffrey Heeren, Pulling Teeth: The State of Mandatory Immigration Detention, 45 HARV.
C.R.–C.L. L. REV. 601, 610–11 (2010) (explaining that the Antiterrorism and Effective Death Pen-
alty Act of 1996 “toughened . . . immigration detention,” id. at 610, and that the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996 “expanded the scope of mandatory deten-
tion,” id. at 611); Miller, supra note 27, at 89–91 (discussing the federal government’s use of
immigration detention after the attacks of September 11, 2001); Margaret H. Taylor, Demore v.
Kim: Judicial Deference to Congressional Folly, in IMMIGRATION STORIES 343, 348–54 (David
A. Martin & Peter H. Schuck eds., 2005); see also César Cuauhtémoc García Hernández, Natural-
izing Immigrant Imprisonment, 103 CALIF. L. REV. 1449, 1453, 1455 (2015) (identifying the bed
mandate, infra text accompanying notes 115–16, as one of a host of forces that underlie an expan-
sion of racialized immigrant incarceration).
2017] IMMIGRATION AND THE BULLY PULPIT 263
largely privatized. Approximately 65% of detention facilities are run
by private corporations, another 25% by state and local governments
under contract with the federal government, and only 10% are operat-
ed directly by the federal government.115 The federal government
therefore has the ability to expand detention capacity relatively quick-
ly by contracting with states and localities for empty bed space in ex-
isting facilities and by relying on private companies to increase their
own detention capacity.
President Trump’s Border Enforcement executive order envisions a
significant expansion of immigration detention.116 The apparent goal
of detaining almost everyone who is in removal proceedings, if met,
could have devastating consequences. Currently, there are simply not
enough immigration courts and immigration judges to process these
claims in anything like a timely fashion.117 Even as they portend a
substantial increase in the number of immigrants in proceedings, Pres-
ident Trump’s orders do nothing to increase the staffing or capacity of
immigration courts. Instead, the orders suggest that people will be de-
tained up to and throughout their proceedings — and detention is thus
offered as the implicit solution to the lack of sufficient court capacity.
As more people are detained for longer periods of time, it is all but
certain that more people with potentially valid claims for relief from
removal will sign away that relief by entering stipulated orders of re-
moval. Stipulated orders of removal are entered when a foreign na-
tional signs away her rights to a hearing and agrees to her own remov-
al. Immigration judges review and sign these, converting them into
formal removal orders, but without a hearing. In the past, ICE offi-
cials have been encouraged to pressure detained immigrants without
counsel to stipulate to their removal.118 Most of these individuals
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
115 HOMELAND SEC. ADVISORY COUNCIL, REPORT OF THE SUBCOMMITTEE ON PRI-
VATIZED IMMIGRATION DETENTION FACILITIES 6 (2016), https://www.dhs.gov/sites/default
/ f i l e s / p u b l i c a t i o n s / D H S % 2 0 H S A C % 2 0 P I D F % 2 0 F i n a l % 2 0 R e p o r t . p d f [h t t p s : / / p e r m a . c c / 7 K 6 S –
SPTV].
116 See Border Enforcement E.O., supra note 7, § 6.
117 As the Obama Administration prioritized recent entrants for detention and removal, long-
term residents in removal proceedings are already receiving hearing dates that extend to the end
of the first Trump term. Immigration attorneys in Denver and in other places around the country
now have clients getting court dates for 2020. Nancy Lofholm, Immigrants Facing Years-Long
Waits in Denver Immigration Court, DENVER POST (Apr. 25, 2016, 6:48 PM),
http://www.denverpost.com/2015/02/04/immigrants-facing-years-long-waits-in-denver-immigration
-court/ [https://perma.cc/D7TS-85FW] (noting that during 2015 master calendar hearings, immi-
gration judges were scheduling merits determination hearings for late 2019); Ballooning Wait
Times for Hearing Dates in Overworked Immigration Courts, TRAC IMMIGRATION (Sept. 21,
2015), http://trac.syr.edu/immigration/reports/405/ [https://perma.cc/DB78-LPS6] (noting the Den-
ver dates and explaining that “thousands of hearings won’t commence until even later; for ten
percent, the wait time for the hearings ranged from 1,552 days to 1,766 days into the future”).
118 JENNIFER LEE KOH ET AL., DEPORTATION WITHOUT DUE PROCESS 2 (2011),
h t t p s : / / w w w . n i l c . o r g / w p – c o n t e n t / u p l o a d s / 2 0 1 6 / 0 2 / D e p o r t a t i o n – W i t h o u t – D u e – P r o c e s s – 2 0 1 1 – 0 9 . p d f
264 HARVARD LAW REVIEW FORUM [Vol. 130:243
faced deportation due to minor civil immigration infractions. ICE has
sometimes provided misleading or incomplete information to immi-
grants to encourage them to sign stipulated removal orders.119 Many
people capitulate to the practice in order to avoid an indefinite period
of detention.120 Such practices will likely become more common in an
Administration that is committed to removing as many noncitizens as
quickly as possible and that is willing to leverage immigration deten-
tion more aggressively to achieve these ends.121
In short, President Trump’s executive orders promote the use of de-
tention to leverage stipulated orders of removal, and these, along with
expedited removal and other forms of administrative removal,122 will
be the means by which the new Administration will expand its immi-
gration enforcement capacity. This is not an entirely new phenome-
non. The American Civil Liberties Union calculated that in Fiscal
Year 2013, 83% of removals took place solely on the basis of the order
of an immigration agent without any review by an immigration
court.123 If President Trump is true to his word, that rather startling
figure will likely grow larger, as will the absolute numbers of such re-
movals. Without the old enforcement priorities in place, the risk
grows that long-term residents with solid claims for relief will be re-
moved in this way.
By largely removing courts — even administrative courts — from
the equation in many removal proceedings, these accelerated removal
practices put much greater power in the hands of agents of ICE and
CBP. Individuals in removal proceedings are often unrepresented, and
the remedies for constitutional violations in policing are even weaker
in removal proceedings than in criminal proceedings. Internal disci-
plinary processes have also failed to keep up with abuses and viola-
tions. Unless the Administration is committed to rooting out abuses in
these agencies, there is little that constrains abusive agents.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
[https://perma.cc/6GBG-F5UJ]; Jennifer Lee Koh, Waiving Due Process (Goodbye): Stipulated
Orders of Removal and the Crisis in Immigration Adjudication, 91 N.C. L. REV. 475 (2013).
119 KOH ET AL., supra note 118, at 10–11.
120 Id. at 2.
121 See Jill E. Family, Due Process Sleight of Hand, YALE J. ON REG.: NOTICE & COMMENT
(Feb. 21, 2017), http://yalejreg.com/nc/due-process-sleight-of-hand-by-jill-e-family/ [https://perma
.cc/U4YA-LRCZ].
122 See, e.g., 8 U.S.C. § 1228 (2012) (providing for expedited removal of foreign nationals con-
victed of aggravated felonies).
123 AM. CIVIL LIBERTIES UNION, AMERICAN EXILE: RAPID DEPORTATIONS THAT BY-
PASS THE COURTROOM 2 (2014), https://www.aclu.org/files/assets/120214-expeditedremoval
_0 [https://perma.cc/52E6-JXZA].
2017] IMMIGRATION AND THE BULLY PULPIT 265
D. Expanded Devolution
Past experience suggests that in localities where law enforcement is
eager to engage in immigration enforcement, the arrest-to-deportation
pipeline will not only place law-abiding people in the removal system,
but will also expose a broader population of citizens and foreign na-
tionals to racial profiling as agents without training in immigration
law seek to contribute to immigration enforcement efforts.124 The new
Administration is ignoring what past experience has taught in this re-
gard. The January Interior Enforcement executive order announced
the Administration’s intention to engage in robust expansions of the
section 287(g) program.125 This coincides unpropitiously with the
Department of Justice’s announcement that it will “pull back” on civil
rights investigations into state and local law enforcement’s discrimina-
tory practices.126 Racial profiling by law enforcement agents appar-
ently will be viewed as an acceptable cost of doing business now, not
as a constitutional scourge to be rooted out.
Some states and localities may try to check heightened federal en-
forcement efforts, and to provide a bulwark against unconstitutional
practices of racial profiling and unreasonable searches and seizures of
members of immigrant communities. Many jurisdictions, concerned
about their exposure to liability for Fourth Amendment violations,
have already adopted policies that prohibit their officials from detain-
ing individuals without probable cause upon mere request by federal
immigration officials.127 Some jurisdictions concerned about the dan-
gers of racial profiling and the costs of alienating their immigrant resi-
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
124 TREVOR GARDNER II & AARTI KOHLI, THE C.A.P. EFFECT: RACIAL PROFILING
IN THE ICE CRIMINAL ALIEN PROGRAM 8 (2009), https://www.law.berkeley.edu/files
/ p o l i c y b r i e f _ i r v i n g _ 0 9 0 9 _ v 9 . p d f [h t t p s : / / p e r m a . c c / S X 9 H – L B P 7]; AARTI KOHLI, PETER L.
MARKOWITZ & LISA CHAVEZ, SECURE COMMUNITIES BY THE NUMBERS: AN ANALYSIS
OF DEMOGRAPHICS AND DUE PROCESS 6 (2011), https://www.law.berkeley.edu/files/Secure
_Communities_by_the_Numbers [https://perma.cc/Q33E-E3UQ]; DEBORAH M. WEISSMAN
ET AL., THE POLICIES AND POLITICS OF LOCAL IMMIGRATION ENFORCEMENT LAWS 25–
32 (2009), http://www.law.unc.edu/documents/clinicalprograms/287gpolicyreview [https://
perma.cc/Q4N5-XMG3].
125 See Interior Enforcement E.O., supra note 7, § 8.
126 Pete Williams, AG Sessions Says DOJ to ‘Pull Back’ on Police Department Civil Rights
Suits, NBC NEWS (Feb. 28, 2017, 1:52 PM), http://www.nbcnews.com/news/us-news/ag-sessions
– s a y s – t r u m p – a d m i n i s t r a t i o n – p u l l – b a c k – p o l i c e – d e p a t m e n t – c i v i l – n 7 2 6 8 2 6 [h t t p s : / / p e r m a . c c / 6 P 8 L
-AQ8A].
127 See, e.g., Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 WL 1414305,
at *4–11 (D. Or. Apr. 11, 2014) (finding that holds executed pursuant to an ICE request lacked
basis in law and constituted a Fourth Amendment unreasonable seizure); see also CHRISTOPHER
LASCH, IMMIGRATION POLICY CTR., THE FAULTY LEGAL ARGUMENTS BEHIND IMMI-
GRATION DETAINERS 2, 4–7 (2013), https://www.americanimmigrationcouncil.org/sites/default
/files/research/lasch_on_detainers [https://perma.cc/K854-AWE3]; Ingrid V. Eagly, Criminal
Justice in an Era of Mass Deportation: Reforms from California, 20 NEW CRIM. L. REV. 12, 32–
37 (2017); CALIFORNIA TRUST ACT, http://www.catrustact.org/ [https://perma.cc/676B-J5LS].
266 HARVARD LAW REVIEW FORUM [Vol. 130:243
dents have ordered their employees not to perform voluntary investiga-
tions into immigration status during otherwise routine stops or other
encounters.128 The State of California is considering legislation that
would codify such limitations at the state level and generally limit vol-
untary investigation and enforcement of immigration law by state and
local agencies.129 Immigrant-rich cities like San Francisco, New York,
and Chicago, concerned with protecting their relationships with their
own residents, have led the march away from voluntary immigration
enforcement cooperation, but a number of smaller jurisdictions and
state entities have followed suit.
The precatory language in the Interior Enforcement order suggests
that such efforts will be met with retaliatory cuts to federal funding.130
Statements made by the President and the Attorney General have reit-
erated these broad threats.131 The Attorney General has even suggest-
ed that federal funding could be clawed back retroactively.132 Some
local governments are already challenging the constitutionality of the
threatened funding cuts.133 A federal judge recently enjoined such ex-
pansive application of the funding provisions of the executive order on
the grounds that such cuts would violate the Tenth Amendment.134
Current Tenth Amendment doctrine prohibits the federal government
from compelling sub-federal officials to perform federal functions, and
bars coercive spending cuts designed to spur such cooperation.135
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
128 E.g., L.A., Cal., Office of the Chief of Police Special Order No. 40 (Nov. 27, 1979),
http://assets.lapdonline.org/assets/pdf/SO_40 [https://perma.cc/DW9D-43ZY]; S.F., CAL., AD-
MIN. CODE ch. 12H (2016); cf. UNIV. OF CAL., UNIVERSITY OF CALIFORNIA STATEMENT OF
PRINCIPLES IN SUPPORT OF UNDOCUMENTED MEMBERS OF THE UC COMMUNITY (2016),
h t t p : / / u n d o c . u n i v e r s i t y o f c a l i f o r n i a . e d u / f i l e s / u c – p r i n c i p l e s – i n – s u p p o r t – o f – u n d o c u m e n t e d – m e m b e r s
-of-the-uc-community [https://perma.cc/CM4Q-SKCE].
129 S.B. 54, 2017–2018 Reg. Sess. (Cal. 2016).
130 See Interior Enforcement E.O., supra note 7, § 9 (proposing funding cuts to jurisdictions
deemed to be in violation of federal laws authorizing state and local information sharing with
immigration enforcement officials); see also Octavio Blanco, Sanctuary Cities Risk Billions in
Defiance of Trump, CNN MONEY (Nov. 19, 2016, 9:28 AM), http://money.cnn.com/2016/11/19
/news/economy/sanctuary-cities-trump-funding [https://perma.cc/6VJV-YALQ].
131 County of Santa Clara v. Trump, No. 17-cv-00574-WHO, 2017 WL 1459081, at *2 (N.D.
Cal. Apr. 25, 2017).
132 Id.
133 See, e.g., Complaint for Declaratory and Injunctive Relief, City and County of San
Francisco v. Trump, No. 4:17-cv-00485 (N.D. Cal. Jan. 31, 2017), ECF No. 1; Office of the Cty.
Counsel, Federal Defunding Lawsuit, COUNTY OF SANTA CLARA (Apr. 14, 2017, 5:03 PM),
https://www.sccgov.org/sites/cco/overview/Pages/fedlawsuit.aspx [https://perma.cc/T25W-PWJP];
Tatiana Sanchez, Judge Appears Baffled by Trump Administration’s Case Against Sanctuary Ju-
risdictions, MERCURY NEWS (Apr. 15, 2017, 3:30 AM), http://www.mercurynews.com/2017/04/13
/ c o u n t y – l a w s u i t – a g a i n s t – t r u m p s – o r d e r – d e f u n d i n g – s a n c t u a r y – c i t i e s – g o e s – b e f o r e – a – s a n – f r a n c i s c o
-judge-today/ [https://perma.cc/UHZ3-MFNC].
134 Santa Clara, 2017 WL 1459081, at *2, *16.
135 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2601–08 (2012) (holding that threats
of federal cuts in funding intended to incentivize state enforcement of federal law may be uncon-
2017] IMMIGRATION AND THE BULLY PULPIT 267
Litigation aside, most of the policies enacted by so-called “sanctu-
ary cities” do not seem to violate 8 U.S.C. § 1373, and the operative
language of the Interior Enforcement order states that violations are
the legal trigger for funding cuts.136 Nevertheless, some jurisdictions
are already scaling back their immigrant-protective measures in the
face of the Administration’s threats, while others are being much more
cautious about enacting such measures.137 Administration officials al-
so rely on the very existence of protective policies to explain and justi-
fy problematic enforcement choices, such as the arrests of immigrants
in state courthouses around the country.138 Once again, the rhetorical
effects of the orders are at least as important as their legal effects.
CONCLUSION
When President Theodore Roosevelt coined the phrase “the bully
pulpit” to describe the presidency, he had in mind a more positive con-
struction of the term “bully.”139 But when it comes to immigrants,
President Trump has used his pulpit in ways that exemplify the nega-
tive, contemporary connotations of the term. By stoking a climate of
fear, the new Administration has made it difficult for immigrants to
vindicate their legal rights and to seek the law’s protection. The
climate of fear renders immigrants more susceptible to workplace ex-
ploitation and to criminal victimization.140 While President Trump
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
stitutional if they are so large as to constitute a coercive funding condition); Printz v. United
States, 521 U.S. 898, 933, 936 (1997) (holding that federal commandeering of state officials for the
enforcement of federal law violates the Tenth Amendment).
136 See Interior Enforcement E.O., supra note 7. This has not stopped the Administration from
making broad rhetorical attacks on all jurisdictions that publically resist enforcement collabora-
tion. As in other matters, the fear-inducing rhetoric is the main point of the Administration’s ef-
forts. Some scholars have suggested that 8 U.S.C. § 1373 itself may be unconstitutional. See, e.g.,
Bernard W. Bell, De-Funding Sanctuary Cities, YALE J. ON REG.: NOTICE & COMMENT (Mar.
28, 2017), http://yalejreg.com/nc/de-funding-sanctuary-cities-by-bernard-w-bell/ [https://perma.cc
/XC85-KW6X].
137 See, e.g., Alan Gomez, Miami-Dade Commission Votes to End County’s ‘Sanctuary’ Status,
USA TODAY (Feb. 17, 2017, 8:27 PM), http://www.usatoday.com/story/news/nation/2017/02/17
/miami-dade-county-grapples-sanctuary-city-president-trump-threat/98050976/ [https://perma.cc
/R5TC-7SVP].
138 Jennifer Chacón, California v. DOJ on Immigration Enforcement, TAKE CARE (Apr. 11,
2017), https://takecareblog.com/blog/california-v-doj-on-immigration-enforcement [https://perma
.cc/PS4T-V9JF].
139 Michael Patrick Cullinane, A (Near) Great President: Theodore Roosevelt as the First Mod-
ern President, in PERSPECTIVES ON PRESIDENTIAL LEADERSHIP 73 (Michael Patrick
Cullinane & Clare Frances Elliott eds., 2014).
140 For detailed discussion of the intertwined discursive and legal creation of this type of “ille-
gality” and “deportability” that makes immigrants more vulnerable to exploitation, see, for exam-
ple, Nicholas P. De Genova, Migrant “Illegality” and Deportability in Everyday Life, 31 ANN.
REV. ANTHROPOLOGY 419 (2002). See also JENNIFER GORDON, SUBURBAN SWEATSHOPS:
THE FIGHT FOR IMMIGRANT RIGHTS 10–66 (2005) (discussing and providing examples of chal-
lenges faced by immigrant workers in the workplace); Chacón, supra note 42, at 728; Josiah McC.
268 HARVARD LAW REVIEW FORUM [Vol. 130:243
touts his “Office for Victims of Crimes Committed by Removable
Aliens,”141 his orders and enforcement policies generate a perfect storm
of conditions for immigrant victimization. At the same time, the
mean-spirited rhetoric has encouraged enforcement practices that
stretch beyond the outer limits of the legal envelope.
This is certainly not the first time that immigrants have been
forced to bear more than their share of the blame for the nation’s ills.
Unfortunately, the new Administration’s imperviousness to the lessons
of history doom the nation to repeat many of the same old inhumane
and ineffective immigration policy choices of its past.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Heyman, State Effects on Labor Exploitation: The INS and Undocumented Immigrants at the
Mexico–United States Border, 18 CRITIQUE ANTHROPOLOGY 157, 157 (1998); Stephen Lee,
Private Immigration Screening in the Workplace, 61 STAN. L. REV. 1103, 1107 (2009); Michael J.
Wishnie, Prohibiting the Employment of Unauthorized Immigrants: The Experiment Fails, 2007
U. CHI. LEGAL F. 193, 195.
141 See Interior Enforcement E.O., supra note 7, § 13; see also President Donald Trump, Joint
Address to Congress (Feb. 28, 2017), https://www.whitehouse.gov/the-press-office/2017/02/28
/remarks-president-trump-joint-address-congress [https://perma.cc/N2X7-TCW4] (referring to the
creation of a DHS office called “V.O.I.C.E. — Victims of Immigration Crime Engagement”).
The creation of a registry of crimes committed by immigrants is eerily reminiscent of the Nazi-era
registry of crimes committed by Jews. Nazis Once Published List of Jewish Crimes, Trump
Now Pushing to Do the Same for Immigrant Crimes, DEMOCRACY NOW (Feb. 2, 2017),
https://www.democracynow.org/2017/2/2/nazis_once_published_list_of_jewish [https://perma.cc
/HC73-MPKM].
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Review is the property of Harvard Law Review Association and its content may not be copied
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Copyright 2017 by David S. Rubenstein & Pratheepan Gulasekaram Printed in U.S.A.
Vol. 111, No. 3
583
Articles
IMMIGRATION EXCEPTIONALISM
David S. Rubenstein & Pratheepan Gulasekaram
ABSTRACT—The Supreme Court’s jurisprudence is littered with special
immigration doctrines that depart from mainstream constitutional norms.
This Article reconciles these doctrines of “immigration exceptionalism”
across constitutional dimensions. Historically, courts and commentators
have considered whether immigration warrants exceptional treatment as
pertains to rights, federalism, or separation of powers—as if developments
in each doctrinal setting can be siloed. This Article rejects that approach,
beginning with its underlying premise. Using contemporary examples, we
demonstrate how the Court’s immigration doctrines dynamically interact
with each other, and with politics, in ways that affect the whole system.
This intervention provides a far more accurate rendering of how
immigration exceptionalism translates into practice. By simultaneously
accounting for rights, federalism, and separation of powers, our model
captures a set of normative tradeoffs that context-specific appraisals have
dangerously missed. For better and worse, the doctrines of immigration
exceptionalism can operate very differently in combination than they do in
isolation. Moreover, our expanded frame offers new insights on
controversies arising at the intersection of constitutional dimensions,
including the recent landmarks of United States v. Texas, Arizona v. United
States, and President Trump’s executive orders issued in his first few
weeks in office. Indeed, the transition between Presidents with drastically
different views on immigration crystallizes the types of tradeoffs the
Article highlights.
AUTHORS—David S. Rubenstein, Professor of Law and Director, Robert
Dole Center for Law & Government, Washburn University School of Law.
Pratheepan Gulasekaram, Professor of Law, Santa Clara University School
of Law. The authors would like to thank Professors Jason Cade, Linus
Chan, Jennifer Chacón, Gabriel Chin, Ming Hsu Chen, Adam Cox, Erin
Delaney, Justin Driver, Ingrid Eagly, Amanda Frost, Alex Glashausser,
Clare Huntington, Kevin Johnson, Michael Kagan, Anil Kalhan, Daniel
Kanstroom, Joseph Landau, Stephen Legomsky, Peter Margulies, Craig
Martin, Hiroshi Motomura, Mark Noferi, Ashira Ostrow, Aaron Simowitz,
David Sloss, Peter Spiro, Rick Su, and Rose Villazor for their incisive
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
584
comments, questions, and suggestions. Drafts of this paper were presented,
and benefitted from feedback, at the American Association of Law Schools
2016 Annual Meeting, the Northern California International Law Scholars
Meeting at Stanford Law School, faculty workshop series at Georgia State,
U.C. Davis, and Washington & Lee, and the 2016 Immigration Law
Teachers Conference. Finally, for tireless research and editing assistance,
we thank the Northwestern University Law Review, Kendra Conner, Hank
Driskell, Penny Fell, Nicole Pottroff, and Alan Vester.
INTRODUCTION ………………………………………………………………………………………………… 584
I. DESCRIPTIVE EXCEPTIONALISM ……………………………………………………………………. 593
A. Rights ……………………………………………………………………………………………….. 594
B. Federalism ………………………………………………………………………………………… 600
C. Separation of Powers ………………………………………………………………………….. 609
II. PRESCRIPTIVE EXCEPTIONALISM …………………………………………………………………… 614
A. Rights ……………………………………………………………………………………………….. 615
B. Federalism ………………………………………………………………………………………… 618
C. Separation of Powers ………………………………………………………………………….. 623
III. EXCEPTIONALISM AS MEANS TO ENDS …………………………………………………………… 627
A. Cross-Currency of Exceptionalism Rationales ……………………………………….. 628
B. Doctrinal Spillovers ……………………………………………………………………………. 630
C. Exceptionalism’s Political Space …………………………………………………………. 632
IV. AN EXCEPTIONALISM “TRILEMMA” ………………………………………………………………. 635
A. The Rights Preference …………………………………………………………………………. 635
B. The Federalism Preference ………………………………………………………………….. 639
C. Separation of Powers Preference …………………………………………………………. 649
V. A NEW FOUNDATION FOR IMMIGRATION THEORY …………………………………………….. 651
CONCLUSION …………………………………………………………………………………………………… 654
INTRODUCTION
Immigration law is famously exceptional. The Supreme Court’s
jurisprudence is littered with special immigration doctrines that depart from
mainstream constitutional norms.1 These doctrines do not apply to other
regulatory fields and enable government action that would be unacceptable
1 See Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power,
1984 SUP. CT. REV. 255 (tracing the Supreme Court’s departures from mainstream norms in
immigration cases); Peter H. Schuck, The Transformation of Immigration Law, 84 COLUM. L. REV. 1, 1
(1984) (“Probably no other area of American law has been so radically insulated and divergent from
those fundamental norms of constitutional right, administrative procedure, and judicial role that animate
the rest of our legal system.”).
111:583 (2017) Immigration Exceptionalism
585
if applied to citizens. This Article provides the first comprehensive study of
“immigration exceptionalism”2—and with some urgency.
More than ever, the scope of immigration power is coming face-to-
face with constitutional rights, federalism, and separation of powers.
National security threats have galvanized nativist sentiment, including
proposals to ban immigrants of certain religions and nationalities.3
Meanwhile, congressional gridlock on immigration reform has prompted
the President, states, and cities to take matters into their own hands,
generating new cuts of institutional conflict across all levels of
government.4 With the future of immigration law hanging in the balance,
the doctrines of immigration exceptionalism could be decisive.5
To start, consider the following headline examples:
1. Rights. Weeks before this Article was going to print, President Trump
issued an executive order that temporarily banned the admission of
immigrants from certain predominantly Muslim countries.6 Under the
2 It has long been appreciated that, when it comes to immigration, the normal constitutional rules
do not always apply. See generally infra Parts I–II. But the term for this phenomenon, “immigration
exceptionalism,” made its first literary appearances in the late 1980s and early 1990s. See T. Alexander
Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 CONST. COMMENT. 9, 10, 34 (1990);
Peter H. Schuck, Introduction: Immigration Law and Policy in the 1990s, 7 YALE L. & POL’Y REV. 1,
19 (1989).
3 See Geoff Earle, Trump’s Poll Numbers Surge After Muslim Ban Comments, N.Y. POST (Dec. 14,
2015), http://nypost.com/2015/12/14/trumps-poll-numbers-surge-after-muslim-ban-comments/ [https://
perma.cc/RN79-S2L9]; Texas Health & Human Servs. Comm’n v. United States, 166 F. Supp. 3d 706,
714 (N.D. Tex. 2016) (denying Texas’s request for an injunction to suspend the resettlement of Syrian
refugees in the state).
4 See Section I.B (discussing spate of state initiatives in immigration); Section I.C (discussing
executive initiatives in immigration); see also David S. Rubenstein, Self-Help Structuralism, 95 B.U. L.
REV. 1619, 1630–32, 1650–57 (2015) (describing how the President and states have engaged in
“constitutional self-help”); Taking Action on Immigration, WHITE HOUSE, https://www.whitehouse.gov
/issues/immigration [https://perma.cc/E5AE-7F3J] (outlining President Obama’s immigration plans and
actions).
5 In his first weeks in office, President Trump issued a series of executive orders concerning
immigration. See, e.g., Exec. Order No. 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order No.
13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017); Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017).
Each raises constitutional questions that will fill court dockets in the years to come. For some cases that
are already underway, see Complaint, City & Cty. of S.F. v. Trump, No. 3:17-cv-00485, 2017 WL
412999 (N.D. Cal. Jan. 31, 2017) and infra note 6.
6 See Exec. Order No. 13,769. The litigation over President Trump’s executive order is sprawling.
See, e.g., Louhghalam v. Trump, No. 17-10154-NMG, 2017 WL 479779 (D. Mass. Feb. 3, 2017);
Washington v. Trump, No. 17-35105, 2017 WL 655437 (9th Cir. Feb. 16, 2017). After being
preliminarily enjoined by the U.S. Court of Appeals for the Ninth Circuit, President Trump signed a
revised order, dropping Iraq to reduce the list of covered countries from seven to six. Exec. Order No.
13,780, 82 Fed. Reg. 13,209 (Mar. 6, 2017). Unsurprisingly, litigation over the immigration ban
continues. See Lydia Wheeler, ACLU on Trump’s Revised Travel Ban: ‘Litigation Lives On,’ THE HILL
(Mar. 7, 2017, 1:37 PM), http://thehill.com/business-a-lobbying/322734-aclu-on-trumps-revised-travel-
ban-litigation-lives-on [https://perma.cc/Q3XK-QSXJ].
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
586
Court’s mainstream equal protection and First Amendment doctrines,
discrimination on account of nationality or religion would likely be
unconstitutional.7 But the answer is far less clear under the Court’s
infamous “plenary power doctrine,” which affords the federal
government virtually unchecked power to make immigration
decisions.8
2. Federalism. Can federal immigration enforcement policies preempt
state laws? This question has come to a head in recent years. The past
decade has witnessed an unprecedented uptick in state and local laws
directed at immigrants. Many of these subfederal measures are
“restrictionist” (i.e., they place burdens or restrictions on immigrants);9
other subfederal laws are “integrationist” (i.e., they seek to extend
benefits and a general sense of belonging to immigrants).10 Meanwhile,
the Executive Branch has increasingly made its immigration
enforcement policies publicly known.11 These political developments
make comparisons between federal and subfederal enforcement
preferences ripe for testing under the Supremacy Clause.12 Under the
Court’s mainstream preemption doctrine, only federal statutes and
7 See, e.g., Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 579 (1993) (Blackmun,
J., concurring in the judgment) (“When a law discriminates against religion as such . . . it automatically
will fail strict scrutiny . . . .”); Graham v. Richardson, 403 U.S. 365, 371–72 (1971) (“[C]lassifications
based on . . . nationality or race[] are inherently suspect and subject to close judicial scrutiny.”
(footnotes omitted)).
8 As mentioned, at the time of publication, litigation over President Trump’s immigration ban is
already quite extensive. See list of cases in supra note 6. For commentary preceding President Trump’s
election, see Pratheepan Gulasekaram, The Legality of Muslim Exclusion, AM. CONST. SOC’Y BLOG
(Dec. 9, 2015), http://www.acslaw.org/acsblog/the-legality-of-muslim-exclusion [https://perma.cc/
L9E9-APY3]; Peter J. Spiro, Trump’s Anti-Muslim Plan Is Awful, and Constitutional, N.Y. TIMES
(Dec. 8 2015), https://www.nytimes.com/2015/12/10/opinion/trumps-anti-muslim-plan-is-awful-and-
constitutional.html [https://perma.cc/WAU3-C63T]. But see Kevin R. Johnson, Trump’s Idea on
Muslims Fails, Despite Precedent, NAT’L L. J. (Dec. 21, 2015) (offering an alternative view).
9 For examples, see infra notes 91–94 and accompanying text.
10 For examples, see infra notes 95–98 and accompanying text.
11 See, e.g., Memorandum from Jeh Charles Johnson, Sec’y, U.S. Dep’t. of Homeland Sec., to León
Rodríguez, Dir., U.S. Citizenship & Immigration Servs., et al. 1 (Nov. 20, 2014) [hereinafter DAPA
Memo], http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action
[https://perma.cc/MWC3-87ZJ]; Memorandum from Janet Napolitano, Sec’y, U.S. Dep’t of Homeland
Sec., to David V. Aguilar, Acting Comm’r, U.S. Customs & Border Prot., et al. 1 (Jun. 15, 2012)
[hereinafter DACA Memo], http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-
individuals-who-came-to-us-as-children [http://perma.cc/H46N-EHKE] (detailing the Department
of Homeland Security’s plan to exercise prosecutorial discretion with regard to undocumented
immigrants who came to the United States as children); Barack Obama, President, White House,
Remarks by the President on Immigration—Chicago, Illinois (Nov. 25, 2014),
http://www.whitehouse.gov/the-press-office/2014/11/25/remarks-president-immigration-chicago-il
[https://perma.cc/3JXP-Y2T8].
12 U.S. CONST. art. VI, cl. 2.
111:583 (2017) Immigration Exceptionalism
587
binding administrative action can preempt conflicting state policies.13
In Arizona v. United States, however, the Court strongly indicated (if
not held) that the Executive’s nonbinding enforcement policies could
form the basis of a preemptive conflict and struck down at least one of
Arizona’s restrictionist laws, partially on this ground.14 Now, under the
Trump Administration, can nonbinding executive policies preempt
state integrationist laws too?
3. Separation of Powers. Congress has clear authority to grant legal
reprieve to some or all of the 11 million undocumented immigrants
currently in the country.15 But can the Executive Branch unilaterally
grant temporary legal reprieve and work authorization to large swaths
of this population, as the Obama Administration’s signature “deferred
action” programs contemplate?16 Last term, the Court had an
opportunity to decide this question in United States v. Texas.17 During
oral argument, some Justices expressed concern that the President’s
immigration initiative might invert the conventional congressional–
executive lawmaking model.18 In a telling nod to exceptionalism, the
U.S. Solicitor General replied: “I don’t think [the lawmaking
relationship is] upside down. I think it’s different . . . in recognition . . .
of the unique nature of immigration policy.”19 The Court’s 4–4 split
13 See, e.g., Wyeth v. Levine, 555 U.S. 555, 576–77 (2009) (holding that preamble to regulation,
which was not binding, could not have preemptive effect); Geier v. Am. Honda Motor Co., 529 U.S.
861, 866 (2000) (holding that an agency regulation with force of law preempted a state tort law claim).
14 See Arizona v. United States, 132 S. Ct. 2492, 2507 (2012) (preempting provisions of Arizona’s
S.B. 1070, at least in part because of its potential conflict with federal immigration enforcement
priorities); see also Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1061 (9th Cir. 2014) (declining to
resolve a similar preemption claim but deeming it “plausible”). The enforcement policies at issue
disclaimed having a legal force, at least as against the federal government. See, e.g., Memorandum from
John Morton, Dir., U.S. Immigration & Customs Enf’t, to All Field Office Dirs. et al. 6 (June 17, 2011),
http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo [https://perma.
cc/WPZ8-EC94] (“[T]his memorandum . . . does not, and may not be relied upon to create any right or
benefit . . . enforceable at law by any party . . . .”).
15 Indeed, Congress has granted immigration amnesty in the past, see Immigration Reform Control
Act of 1986, Pub. L. 99-603, 100 Stat. 3359 (1986), albeit to what was then a much smaller population
of undocumented immigrants.
16 See DAPA Memo, supra note 11; DACA Memo, supra note 11.
17 136 S. Ct. 2271 (2016) (mem.) (per curiam).
18 See, e.g., Transcript of Oral Argument at 23–24, Texas, 136 S. Ct. 2271 (No. 15-674); see also
infra Sections I.C, II.C (discussing the lawmaking relationship between Congress and Executive, in
immigration and more generally).
19 Transcript of Oral Argument, supra note 18, at 24.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
588
decision in Texas leaves open this important separation of powers
question.20
For decades, and continuing today, scholars and advocates have
addressed these types of constitutional questions by focusing on whether
immigration law warrants special treatment in regards to rights, or
federalism, or separation of powers—much like we have exposited above.21
At first blush, this disjunctive approach seems sensible. After all, rights,
separation of powers, and federalism are different.
This Article rejects that conventional approach, beginning with its
underlying premise. As we show, the Court’s exceptional immigration
doctrines are conceptually and pragmatically intertwined. Thus, answers to
any one of the examples above can influence answers to the others.
Building on that insight, this Article develops an alternative model of
immigration exceptionalism that arcs simultaneously across rights,
federalism, and separation of powers.
This theoretical intervention yields several analytic and pragmatic
payoffs. First, it provides a far more accurate rendering of how immigration
exceptionalism translates into practice. Doctrinally, the Court sometimes—
but not always—treats immigration exceptionally.22 Prescriptively, scholars
and advocates sometimes—but not always—want immigration treated that
way.23 In short, immigration exceptionalism has exceptions. Our model
allows that exceptionalism is not, and need not be, an all-or-nothing
proposition.24 Yet, once that is recognized, it becomes imperative to
understand how strands of exceptional and mainstream constitutional
20 See Texas, 136 S. Ct. at 2272. Subsequently, the United States filed a petition for rehearing,
Petition for Rehearing, id. (No. 15-674), which the Court denied. Petition for Rehearing Denied, Texas,
137 S. Ct. 285 (No. 15-674).
21 The academic literature on immigration exceptionalism is legion, featuring commentary from
nearly every prominent immigration law scholar, and others, over the past four decades. Cf. David A.
Martin, Why Immigration’s Plenary Power Doctrine Endures, 68 OKLA. L. REV. 29, 30 (2015) (“It
almost seems an obligatory rite of passage for scholars embarking on the study of immigration law to
provide their own critique of plenary power or related doctrines of deference.”). For the scholarship on
rights exceptionalism, see infra Section II.A; on federalism, see infra Section II.B; and on separation of
powers, see infra Section II.C.
22 See infra Part I (canvassing the Court’s immigration jurisprudence).
23 See infra Part II (surveying academic treatments of immigration exceptionalism over time and
across constitutional contexts).
24 See Hiroshi Motomura, Federalism, International Human Rights, and Immigration
Exceptionalism, 70 U. COLO. L. REV. 1361, 1393 (1999) (“Immigration can be exceptional for some
purposes and not for others.”); cf. HIROSHI MOTOMURA, IMMIGRATION OUTSIDE THE LAW 114–16, 121
(2015) [hereinafter MOTOMURA, IMMIGRATION] (arguing that the exclusivity principle can apply
differently to subfederal restrictionist and integrationist laws).
111:583 (2017) Immigration Exceptionalism
589
doctrines interface with each other, and with politics, in ways that impact
the immigration system as a whole.
Second, our model unmasks how seemingly discrete doctrines can
look very different in combination than how they appear in isolation.25 For
instance, a President might unilaterally craft federal integrationist polices
(courtesy of separation of powers exceptionalism). And those policies, in
turn, may preempt subfederal restrictionist policies as in Arizona (courtesy
of federalism exceptionalism).26 Still, this outcome is highly contingent. To
see how, mix in rights exceptionalism and change the President. Under this
alternative scenario, the new President could unilaterally act (again,
courtesy of separation of powers exceptionalism) in rights-depriving ways
(under rights exceptionalism) and may seek to have that policy preempt
subfederal integrationist policies, such as California’s (via federalism
exceptionalism).27
We return later to these and other crosscutting possibilities. For now,
these sketch examples are simply meant to illustrate why a coordinated
approach to immigration exceptionalism matters: these doctrines may
offset or aggregate, sometimes to very different ends, vis-à-vis immigrant
interests. Yet we cannot know until we expand the frame to look on a
system-wide basis, over time, and with sensitivity to political swings.
25 As recent studies in systems theory suggest, complex systems often behave in ways that are not
easily predictable. Cf. ADRIAN VERMEULE, THE SYSTEM OF THE CONSTITUTION (2011) (bringing
systems theory to constitutional law).
26 In 2010, Arizona enacted S.B. 1070 to impose a policy of “attrition through enforcement,” which
overtly sought to “discourage and deter the unlawful entry and presence of aliens and economic activity
by persons unlawfully present in the United States.” Arizona v. United States, 132 S. Ct. 2492, 2497
(2012) (quoting Note following ARIZ. REV. STAT. ANN. § 11–1051 (2012)). Section 3 imposed criminal
penalties on aliens who failed to comply with federal alien-registration requirements. ARIZ. REV. STAT.
ANN. § 13–1509 (2016). Section 5(C) criminalized unauthorized aliens who sought or engaged in work
in the state. See id. § 13–2928(C). Section 6 authorized officers to arrest without a warrant a person “the
officer has probable cause to believe . . . has committed any public offense that makes the person
removable from the United States.” Id. § 13–3883(A)(5). Finally, Section 2(B) provided that officers
who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person’s
immigration status with the federal government. See id. § 11–1051(B). The Court invalidated Sections
3, 5(C), and 6 on preemption grounds but left section 2(B) intact. Arizona, 132 S. Ct. at 2510. For
further discussion of the case, see infra notes 113–21 and accompanying text.
27 Cf. Karthick Ramakrishnan & Allan Colbern, Op-Ed., Immigration Reform: ‘The California
Package,’ L.A. TIMES (June 24, 2015), http://www.latimes.com/opinion/op-ed/la-oe-0624-
ramakrishnan-state-citizenship-20150624-story.html [https://perma.cc/LY5U-AV9E] (explaining how
California has “encourage[ed] integration rather than deportation” through immigration policies);
“Sanctuary Cities,” Trust Acts, and Community Policing Explained, AM. IMMIGR. COUNCIL (Oct. 10,
2015), http://www.immigrationpolicy.org/just-facts/sanctuary-cities-trust-acts-and-community-policing
-explained [https://perma.cc/N9H8-UTYU] (describing federal sanctuary laws, which generally limit
local law enforcement from actively assisting in immigration enforcement).
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Third, with this reorientation, recent landmark cases like Texas and
Arizona take on more nuance and peril than conventional analyses
suggest.28 Both cases raise bundled constitutional questions, which context-
specific approaches have no way to register.29 By contrast, our model
contextualizes these cases, capturing the tensions and overlaps between
them. Moreover, our holistic approach provides new analytical ingress to
future cases, including those currently pending in the Court.30
With so much immigration policy up for grabs across all levels of
government,31 a reappraisal of immigration exceptionalism is necessary to
meet the mounting challenge. More broadly, this Article also contributes to
nascent studies of doctrinal cross-pollination in other areas of constitutional
and administrative law.32 Thus, while this Article’s central focus is
28 United States v. Texas, 136 S. Ct. 2271 (2016) (mem.) (per curiam) (affirming, without opinion,
the Fifth Circuit’s preliminary injunction of DAPA in Texas v. United States, 805 F.3d 653, 657 (5th
Cir. 2015)); Arizona, 132 S. Ct. 2492.
29 Cf. Reply Brief for United States at 2, Texas, 136 S. Ct. 2271 (No. 15-674) (characterizing the
case as one “that implicates fundamental questions of standing, separation of powers, federal
immigration authority, and administrative law”); Adam B. Cox, Enforcement Redundancy, 2012 SUP.
CT. REV. 31, 62–63 (“Arizona may be less significant for its impact on state immigration initiatives than
for ratifying and furthering the consolidation of immigration authority in the executive branch.”); David
S. Rubenstein, Immigration Structuralism: A Return to Form, 8 DUKE J. CONST. L. & PUB. POL’Y 81,
85–87 (2013) (situating Arizona at the intersection of separation of powers and federalism); infra
Section III.C.1 and accompanying notes (exposing additional overlaps between Arizona and Texas).
30 At least two constitutional immigration cases will be heard this upcoming term. See Rodriguez v.
Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted, Jennings v. Rodriguez, 136 S. Ct. 2489 (2016)
(due process challenges to the federal government’s immigration detention policies); Morales-Santana
v. Lynch, 804 F.3d 520 (2d Cir. 2015), cert. granted, 136 S. Ct. 2545 (2016) (equal protection
challenge to immigration statute’s facial gender distinctions regarding parental conferral of derivative
citizenship to children).
31 See, e.g., Border Security, Economic Opportunity, and Immigration Modernization Act: Hearing
on S. 744, 113th Cong. (2013) (passed Senate but voted down in House); Exec. Order No. 13,769, 82
Fed. Reg. 8977 (Jan. 27, 2017); Exec. Order No. 13,767, 82 Fed. Reg. 8793 (Jan. 25, 2017); Exec.
Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017); PRATHEEPAN GULASEKARAM & S. KARTHICK
RAMAKRISHNAN, THE NEW IMMIGRATION FEDERALISM ch. 3 (2015) (surveying uptick in state and local
laws pertaining to noncitizens); John M. Glionna, Arizona Immigration: “Show Me Your Papers”
Enforcement to Begin, L.A. TIMES (Sept. 18, 2012), http://articles.latimes.com/2012/sep/18/nation/la-
na-nn-arizona-immigration-20120918 [https://perma.cc/7772-UEXK]; Michael D. Shear, Obama,
Daring Congress, Acts to Overhaul Immigration, N.Y. TIMES (Nov. 20, 2014),
https://www.nytimes.com/2014/11/21/us/obama-immigration-speech.html [https://perma.cc/726D-
BY8F].
32 The crossovers and intersections of rights, separation of powers, and federalism questions are as
old as the Constitution itself. The questions abounding today, however, are how these dimensions
interact, or should interact, to account for new dynamics in modern government. See, e.g., Cynthia R.
Farina & Gillian E. Metzger, Introduction: The Place of Agencies in Polarized Government,
115 COLUM. L. REV. 1683, 1685–87 (2015) (summarizing a set of recent symposium contributions, all
of which hit on one or more of the intersections between rights, separation of powers, federalism, and
administrative law); David S. Rubenstein, Administrative Federalism as Separation of Powers,
72 WASH. & LEE L. REV. 171 (2015) (recasting administrative federalism as proxy for separation of
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immigration, its animating themes may usefully inform other fields of
public law.
The Article proceeds in five parts. Part I summarizes the Court’s
jurisprudence on immigration exceptionalism. We suggest that the contours
of this fractured canon are in flux. Some exceptional doctrines show signs
of receding, while others may be ascending.33
Part II charts the academic reactions to the Court’s immigration
exceptionalism jurisprudence across time and constitutional contexts. The
scope of our survey is the first of its kind. More importantly, this study
uncovers a set of advocacy patterns and trends that are central to our
project. Foremost, scholars invariably renounce immigration
exceptionalism as it pertains to constitutional rights, but often defend or
promote special immigration doctrines for federalism and separation of
powers.34 This contrast suggests that context-specific arguments in favor or
against the Court’s immigration doctrines are a means to ends. For
example, scholars and advocates gesture to exceptionalism as added legal
cover for executive action that is favorable to immigrant interests. In other
instances, exceptionalism is invoked to tamp down restrictionist state
policies, or, more generally, to root out perceived injustices in the
immigration system.
Part III explains why immigration exceptionalism is a fraught means
to certain ends. More specifically, we highlight how the Court’s
immigration doctrines share a common set of rationales that reverberate
across constitutional dimensions. Accordingly, the reasons for giving
immigration exceptional (or normalized) treatment in any one doctrinal
setting can pull and push across other settings, in potentially crosscutting
and unintended ways. For example, if immigration is exceptional for
purposes of federalism (in ways that someone favors), then perhaps
immigration will continue to be exceptional for rights too (in ways that the
same person disfavors). Moreover, political shifts can upset expectations
about how mainstream and exceptional doctrines will translate in action.
Control of the White House, for instance, comes with levers that can shape
powers). The Court, too, seems increasingly sensitive to these crossovers, but can generally approach
them only ad hoc. See, e.g., Bond v. United States, 134 S. Ct. 2077, 2101 (2014) (explaining that “[t]he
distinction between provisions protecting individual liberty, on the one hand, and ‘structural’
provisions, on the other,” is not always helpful because “structure in general—and especially the
structure of limited federal powers—is designed to protect individual liberty”); United States v.
Windsor, 133 S. Ct. 2675, 2692–93 (2013) (relying on a mix of federalism and rights theories to strike
down the federal Defense of Marriage Act).
33 See infra Part I.
34 Of course, there is some important nuance to this claim, which we develop in Part II.
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
592
immigration policy not only at the federal level, but at the subfederal level
too.35
Part IV then hypothesizes a range of normative tradeoffs that inhere in
this dynamic regime of law and politics. We frame the discussion around a
stylized “trilemma”—a dilemma with three horns.36 More specifically, we
illustrate how arguments for or against special immigration doctrines for
rights, federalism, and separation of powers will almost certainly require
normative compromises within or across constitutional dimensions. Under
most immigration scholars’ and advocates’ ideal preference, immigration
law would be exceptional for some purposes (e.g., for federalism and
perhaps for separation of powers), while simultaneously normalized for
rights adjudication. This preferred end-state, however, is fundamentally
unstable, and most likely out of reach under existing precedent. Thus, we
argue, strategic prioritization among competing values and second-best
assessments are necessary.
Part V offers some specific thoughts for how theorists, advocates, and
jurists might put this Article’s insights to use. For scholars and immigrant
advocates, this Article presents a new set of considerations about whether
and how to ring the exceptionalism bell.37 For jurists, the takeaway may be
different but links to the same lessons. Foremost, doctrines and cases can
look different in combination than they do in isolation.38 The way forward
is anything but sure. Regardless of ideological orientation, however, this
Article’s holistic approach to immigration exceptionalism offers a new
foundation on which to build.
35 See Pratheepan Gulasekaram & S. Karthick Ramakrishnan, The President & Immigration
Federalism, 68 FLA. L. REV. 101 (2016) (discussing the myriad ways Presidents can influence state-
level policy on immigration).
36 The term has been used before in other settings. See, e.g., Murphy v. Waterfront Comm’n of
N.Y. Harbor, 378 U.S. 52, 55 (1964) (explaining that the rationale of the Fifth Amendment’s privilege
against self-incrimination is to free criminal defendants of the “cruel trilemma of self-accusation,
perjury or contempt”). Here, we employ the term to capture a set of normative tradeoffs across the
constitutional dimensions on rights, federalism, and separation of powers.
37 Government lawyers may also appreciate and draw from this Article’s offerings. But government
lawyers are not our primary audience here, for reasons that dovetail with our broader claims. The
government can always argue for exceptionalism in court, yet mitigate its effects politically or
administratively when it so chooses. For instance, the federal government can choose to pass more
rights-regarding laws, acquiesce to state and local policies, afford procedural protections beyond what
the Administrative Procedure Act requires, and so forth. By contrast, immigrant advocates and theorists
do not have those luxuries; they can argue for or against exceptionalism but have little control over the
government’s uses (and abuses) of the resulting power arrangements.
38 To be clear, we do not suggest that courts can or should decide more than what is before them.
With this Article’s insights, however, jurists can make more informed decisions about the actual scope
and real-world implications of the cases they decide.
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I. DESCRIPTIVE EXCEPTIONALISM
The story of how immigration law became and stayed exceptional is
foundational to our nation’s history.39 This Part recalls some of that story,
and provides context for Part II’s novel spinoff: namely, how academic
reactions to immigration exceptionalism have varied across time and
doctrinal contexts. To mark those contrasts, here we chart the Court’s
immigration jurisprudence. Section I.A offers a descriptive account of the
Court’s rights jurisprudence. We then turn to structure, offering descriptive
accounts of immigration federalism in Section I.B, and separation of
powers in Section I.C.
Before proceeding, we offer two refining caveats. First, the very idea
of exceptionalism is relativistic inasmuch as it connotes departures from
mainstream legal norms. Some might reasonably quibble with
characterizing immigration as exceptional writ large, given that other
domains—such as foreign affairs and Indian law—also famously depart
from the mainstream.40 Still, this Article abides to the widely held view that
special legal norms often apply in immigration.41 As one prominent
commentator described immigration law more than thirty years ago, in
ways that still register today: “Probably no other area of American law has
been so radically insulated and divergent from those fundamental norms of
constitutional right, administrative procedure, and judicial role that animate
the rest of our legal system.”42
Second, some commentators might characterize a particular
immigration doctrine as exceptional, whereas others may not. That is,
reasonable minds may differ on immigration exceptionalism writ small. We
39 See STEPHEN H. LEGOMSKY, IMMIGRATION AND THE JUDICIARY: LAW AND POLITICS IN BRITAIN
AND AMERICA 177–222 (1987) (tracing that history); see also Schuck, supra note 1.
40 See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the
Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1, 10 (2002)
(linking these domains); Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations
Law, 128 HARV. L. REV. 1900, 1913, 1928–29 (2015) (situating immigration exceptionalism within the
foreign relations exceptionalism tent). We should note that while there is overlap between these
exceptional domains, there are also major differences among them. Immigration may have a foot in
foreign relations law, but the other foot is firmly planted in domestic law.
41 See Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom
Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 564–65 (1990) (treating
immigration law as exceptional); see also Sitaraman & Wuerth, supra note 40, at 1924–34 (describing
foreign relations law as exceptional, some of the time, and arguing for across-the-board normalization
in this domain). The alternative is to abandon the idea of constitutional and subconstitutional
mainstreams—an intriguing possibility worth pursuing, but one that we bracket here. Cf. Daniel
Kanstroom, Surrounding the Hole in the Doughnut: Discretion and Deference in U.S. Immigration
Law, 71 TUL. L. REV. 703, 714–15 & n.48 (1997) (questioning the idea of “mainstream public law,”
and thus hedging on the idea of immigration exceptionalism).
42 See Schuck, supra note 1, at 1.
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flag these possibilities throughout,43 but they are mostly inconsequential to
our project. Here, we are foremost concerned with how courts and
commentators have conjured immigration’s distinct features as reasons for
specialized legal treatment.44 The exceptionalism label is useful shorthand.
But whether a particular doctrine is exceptional, as a formal matter, is less
important for our purposes than the functional tensions and overlaps that
emerge across doctrinal settings.
A. Rights
President Trump’s temporary ban on refugees and immigrants from
several Muslim-majority countries sent political shock waves through the
American psyche and rippled across the globe.45 Perhaps more shocking, to
some, is that his immigration ban might be constitutional.46 In non-
immigration contexts, Congress’s complete (i.e., plenary) authority over a
subject is generally tested for compliance with structural limitations,47 and
subject to judicial scrutiny when constitutional rights are implicated.48 In
stark contrast, judicial review of federal immigration law under the
“plenary power doctrine” is extremely lax and forgiving.49 Thus,
43 See infra notes 106–09, 197–207 and accompanying text.
44 However, for a recent account that the Court is trending toward normalization, see Kevin R.
Johnson, Immigration in the Supreme Court, 2009–13: A New Era of Immigration Unexceptionalism,
68 OKLA. L. REV. 57 (2015). This claim is contestable, however. See supra Part I (discussing how
recent cases have reified old forms of exceptionalism and shown signs on new forms emerging).
45 See supra notes 5–6 and accompanying text; see also Aaron Blake, Trump’s Travel Ban Is
Causing Chaos—And Putting His Unflinching Nationalism to the Test, WASH. POST. (Jan. 29, 2017),
https://www.washingtonpost.com/news/the-fix/wp/2017/01/29/president-trumps-travel-ban-is-causing-
chaos-dont-expect-him-to-back-down/?utmterm=.d195c9324944 [https://perma.cc/GSV9-B63K]. In his
electoral run, then-candidate Trump’s suggestion to ban Muslims from the country received a similar
ovation. See, e.g., Russell Berman, Donald Trump’s Call to Ban Muslim Immigrants, ATLANTIC (Dec.
7, 2015), http://www.theatlantic.com/politics/archive/2015/12/donald-trumps-call-to-ban-muslim-
immigrants/419298/ [https://perma.cc/3WBL-YYHS]; Pema Levy, Trump Soars to New Heights in Poll
After Proposing Muslim Ban, MOTHER JONES (Dec. 14, 2015), http://www.motherjones.com/mojo/
2015/12/donald-trump-proposes-ban-muslims-soars-new-heights-poll [https://perma.cc/L8LC-SLM3].
46 For competing views, see supra note 8.
47 See, e.g., NFIB v. Sebelius, 132 S. Ct. 2566, 2609 (2012) (reviewing and striking down
Affordable Care Act provisions as invalid exercises of congressional Spending and Commerce Clause
authority, despite recognizing Congress’s “plenary” authority over interstate commerce) (Ginsburg, J.,
concurring in part and dissenting in part).
48 Gonzales v. Carhart, 550 U.S. 124, 146 (2007) (applying the “undue burden” standard used to
assess due process challenges in abortion context to uphold federal abortion restrictions); Adarand
Constructors v. Pena, 515 U.S. 200, 227 (1995) (remanding and instructing lower court to apply strict
scrutiny in determining constitutionality of a federal law that required contract provision that gave
preference to disadvantaged individuals from certain racial and ethnic groups).
49 See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“Our cases have long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.” (quoting Shaughnessy v. Mezei, 345 U.S. 206, 210
111:583 (2017) Immigration Exceptionalism
595
substantive constitutional rights—such as equal protection, due process,
freedom of association, and so on—tend to garner less judicial scrutiny in
immigration cases than other areas of federal regulation.50
The plenary power doctrine in rights cases debuted in the late
nineteenth century, shortly after the federal government began regulating
immigration.51 In Chae Chan Ping v. United States, the Court upheld the
Chinese Exclusion Act of 1882 on the grounds that the federal government
had plenary authority to exclude immigrants on any basis, including race or
nationality.52 Soon after, in Fong Yue Ting v. United States, the Court
extended this reasoning to uphold a federal statute that made Chinese
laborers presumptively deportable.53 Because of Congress’s plenary
authority over immigration, the lack of due process afforded to the
petitioners was constitutionally irrelevant.54
In these Chinese Exclusion Cases, the Court’s putative rationales for
the plenary power doctrine ranged from institutional (e.g., the relative
competencies of the Court vis-à-vis the political branches in foreign
affairs), to extraconstitutional (e.g., international norms of sovereignty), to
pragmatic (e.g., national security).55 Whatever the underlying rationale, the
end result was a doctrine of broad judicial deference that, in many
(1953) (internal quotation marks omitted))); see also Motomura, supra note 41, at 547; Legomsky,
supra note 1, at 179 (coining the term “plenary power doctrine”).
50 See, e.g., Fiallo, 430 U.S. at 792–94, 798–99 (upholding discriminatory law that excluded out-
of-wedlock children from claiming their biological fathers—but not mothers—as “parents” for
immigration benefits); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (reifying
Congress’s virtually impenetrable discretion, stating that “[w]hatever the procedure authorized by
Congress is, it is due process as far as an alien denied entry is concerned”).
51 See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875),
93 COLUM. L. REV. 1833, 1841–80 (1993) (explaining that in the first one hundred years of the
republic, the federal government played only a very minor role relative to states in regulating
immigration).
52 130 U.S. 581, 604 (1889).
53 149 U.S. 698 (1893). Chinese immigrants were required to obtain a certificate to prove their
residency and rebut the presumption of deportability, but by regulation, such certificate would only be
issued on the testimony of a “white witness.” Id. at 729.
54 Id. at 728 (opining on the breadth of congressional power to deport, noting “Congress, under the
power to exclude or expel aliens, might have directed any Chinese laborer, found in the United States
without a certificate of residence, to be removed out of the country by executive officers, without
judicial trial or examination, just as it might have authorized such officers absolutely to prevent his
entrance into the country”).
55 See Chae, 130 U.S. at 602–03 (stating that the Court is not a “censor of the morals of other
departments of the government”); id. at 603 (“Jurisdiction over its own territory to [exclude aliens] is an
incident of every independent nation.”); id. at 606 (providing wide berth for the legislature to protect
national security and make determinations that allowing in foreigners might endanger peace and
security); see also Legomsky, supra note 1 (parsing and critiquing the Court’s expressed justifications
for the plenary power doctrine).
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situations, foreclosed noncitizens from rights guaranteed to other persons
under the Constitution.
Of course, when these foundational immigration cases were decided,
the Court’s rights jurisprudence was undeveloped.56 As that jurisprudence
evolved over time, however, immigration law lagged behind. Still today,
the federal government’s immigration laws contain explicit gender
distinctions, ideological bars, associational restrictions, and per-country
limitations that inure to the detriment of specific nationalities.57 In addition,
the plenary power doctrine relaxes procedural protections for noncitizens in
admission and removal proceedings,58 and condones the extended detention
of potential deportees.59 More generally, the plenary power doctrine results
in a regulatory regime that, in the Court’s own words, “would be
unacceptable if applied to citizens.”60
To be sure, some fissures in the Court’s plenary power doctrine
complicate this narrative.61 Occasionally, the Court has found deportation
or exclusion processes to be overly punitive or lacking sufficient
safeguards.62 In other instances, the Court has spoken the language of
mainstream constitutional standards, but has arguably applied those
56 See Motomura, supra note 41, at 551.
57 See, e.g., 8 U.S.C. § 1409 (2012) (gender distinction in ability to transfer citizenship to children
born out of wedlock); id. § 1152 (numerical limitations on individual foreign states); id.
§ 1182(a)(3)(D) (exclusion for membership in totalitarian party); id. § 1182(a)(4) (exclusion on public
charge grounds). See generally Kevin R. Johnson, The Intersection of Race and Class in U.S.
Immigration Law and Enforcement, 72 LAW & CONTEMP. PROBS. 1, 15–22 (2009) (explaining racial
dimensions of immigration law).
58 United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure
authorized by Congress is, it is due process as far as an alien denied entry is concerned.”).
59 See, e.g., Demore v. Kim, 538 U.S. 510, 530–31 (2003) (upholding lengthy mandatory
detention); Shaughnessy v. Mezei, 345 U.S. 206, 215–16 (1953) (upholding government detention of
noncitizen on Ellis Island).
60 Mathews v. Diaz, 426 U.S. 67, 80 (1976). Rachel Rosenbloom draws critical attention to how
immigration exceptionalism also implicates the rights of citizens who get snared in immigration
enforcement, but have difficulty establishing citizenship owing to lax administrative procedures and
judicial review under the plenary power doctrine. See Rachel E. Rosenbloom, The Citizenship Line:
Rethinking Immigration Exceptionalism, 54 B.C. L. REV. 1965 (2013).
61 See, e.g., Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (opining that even the significant
deference to federal immigration power does not authorize indefinite detention without review of
noncitizens whom no country will accept); Landon v. Plasencia, 459 U.S. 21, 36–37 (1982) (holding
that a returning legal permanent resident was entitled to more process than provided by the
government); see also Legomsky, supra note 1 (discussing inroads into the plenary power doctrine over
time); Motomura, supra note 41 (same).
62 See, e.g., Yamataya v. Fisher, 189 U.S. 86, 100–01 (1903) (suggesting that some procedural
guarantees applied in deportation proceedings); Wong Wing v. United States, 163 U.S. 228, 237–38
(1896) (holding that the Constitution prevented deportees from being subjected to hard labor prior to
deportation).
111:583 (2017) Immigration Exceptionalism
597
standards differently. Nguyen v. INS is an example of this phenomenon.63
There, the Court upheld provisions of the Immigration and Nationality Act
(INA) that treat unwed fathers differently than unwed mothers for purposes
of conferring citizenship to their biological children. Because the Court
ruled that the INA provision survived mainstream gender discrimination
scrutiny, it had no need to rely on the exceptional plenary power doctrine
and expressly declined to do so.64 Justice O’Connor’s dissent in Nguyen,
however, accused the majority of “recit[ing]” the mainstream substantive
standard for heightened scrutiny of sex-based classifications, “but
depart[ing] from the guidance . . . in several ways.”65 Thus, Nguyen might
be read either as a move towards normalization, or, alternatively, as a case
that uses a mainstream façade to mask an exceptional analysis and result.
Even granting these nuances, rights challenges to the federal political
branches’ immigration decisions generally swim upstream against the
plenary power doctrine and its vestiges.66 Indeed, two terms ago, the
Court’s plurality decision in Kerry v. Din rejected a U.S. citizen’s due
process claim that the State Department improperly denied her spouse a
visa on terrorism-related grounds.67 The plurality was unmoved by Din’s
asserted liberty interest in family unification, stating: “This Court has
consistently recognized that these various distinctions are policy questions
entrusted exclusively to the political branches of our Government, and we
have no judicial authority to substitute our political judgment for that of the
Congress.”68
63 533 U.S. 53 (2001).
64 Id. at 72–73 (“[W]e need not assess the implications of statements in our earlier cases regarding
the wide deference afforded to Congress in the exercise of its immigration and naturalization power.”).
65 Id. at 78 (O’Connor, J., dissenting).
66 See Michael Kagan, Plenary Power Is Dead! Long Live Plenary Power, 114 MICH. L. REV.
FIRST IMPRESSIONS 21, 26–28 (2015); Martin, supra note 21 (providing an account for why the plenary
power doctrine endures); see also infra Section II.A (discussing academic critiques of Court’s
immigration rights jurisprudence and frustrations over the stickiness of the plenary power doctrine).
67 135 S. Ct. 2128, 2138 (2015) (plurality opinion); see also Kevin Johnson, Argument Preview:
The Doctrine of Consular Non-Reviewability—Historical Relic or Good Law?, SCOTUSBLOG (Feb. 18,
2015, 9:55 AM), http://www.scotusblog.com/2015/02/argument-preview-the-doctrine-of-consular-non-
reviewability-historicalrelic-or-good-law/ [https://perma.cc/6C32-2SCM] (describing the doctrine of
consular non-reviewability, at issue in Din, as the “first cousin of immigration law’s exceptional
‘plenary power’ doctrine”).
68 Din, 135 U.S. at 2136 (quoting Fiallo v. Bell, 430 U.S. 787, 798 (1977)) (internal quotation
marks omitted). Two additional Justices concurred only in judgment, writing that even assuming Din
had a due process interest, plaintiff received the process she was due. Id. at 2141 (Kennedy & Alito, JJ.,
concurring in the judgment) (“[R]espect for the political branches’ broad power over the creation and
administration of the immigration system extends to determinations of how much information the
Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.”). The
four dissenting Justices argued that Din both had a due process interest, and that the process she
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The foregoing account describes the Court’s general approach when
federal regulations are challenged on constitutional rights grounds. But the
Court’s general treatment of similar challenges to state and local
regulations is governed by a different set of doctrines.69 For example, the
Court generally applies strict scrutiny to state laws that discriminate on the
basis of alienage or nationality, at least when challenged by lawful
permanent residents.70
The Court’s incongruent treatment of rights challenges to federal and
subfederal regulations was drawn into sharp relief in a famous pair of cases
decided in the 1970s. In Graham v. Richardson, the Court reviewed
challenges to the legality of a state law that denied public assistance to
some legal resident noncitizens.71 The Court declared—for the first time—
that alienage is a suspect classification.72 Thus, the Court applied the
requirements of strict scrutiny and struck down the state law on equal
protection grounds.73
A few years after Graham, however, the Supreme Court clarified in
Mathews v. Diaz that the federal government was not bound by the same
limitation.74 More specifically, the Diaz Court invoked the plenary power
doctrine and upheld federal alienage distinctions for receiving certain
benefits.75 Distinguishing Graham, the Court explained that the “Fourteenth
Amendment’s limits on state powers are substantially different from the
constitutional provisions applicable to the federal power over immigration
and naturalization.”76
received was insufficient. Id. at 2142–47 (Breyer, J., dissenting, joined by Ginsburg, Sotomayor, and
Kagan, JJ.).
69 See Linda Bosniak, Membership, Equality, and the Difference Alienage Makes, 69 N.Y.U. L.
REV. 1047, 1104–05 (1994) (discussing the incongruity); Clare Huntington, The Constitutional
Dimension of Immigration Federalism, 61 VAND. L. REV. 787, 838 (2008) (same); see also Brian
Soucek, The Return of Noncongruent Equal Protection, 83 FORDHAM L. REV. 155, 158–59 (2014).
70 See, e.g., Graham v. Richardson, 403 U.S. 365, 376 (1971) (applying strict scrutiny to state law
discriminating on account of alienage). The level of judicial scrutiny applicable to state laws that
discriminate against undocumented immigrants is less certain. In Plyler v. Doe, the Court noted that
aliens’ unlawful status was constitutionally relevant, and that undocumented immigrants as a class were
generally not protected under heightened judicial scrutiny. 457 U.S. 202, 235–36 (1982) (Blackmun, J.,
concurring); see also id. at 219 n.19 (majority opinion) (explicitly rejecting the notion that “illegal
aliens” are a “suspect class”). Plyler’s reasoning, however, has not been extended beyond application to
undocumented children in primary school.
71 403 U.S. at 366.
72 Id. at 371–72.
73 Id. at 376. According to the Court, a state’s fiscal interests and “desire to preserve limited
welfare benefits for its own citizens” did not justify this invidious distinction between residents. Id. at
374.
74 426 U.S. 67 (1976).
75 Id. at 85.
76 Id. at 86–87.
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The incongruence in the Court’s immigration rights jurisprudence is,
itself, an anomaly in the law. Indeed, in non-immigration contexts, the
Court has stressed the need for congruity in how equal protection
challenges are handled under the Fifth Amendment (for the federal
government) and Fourteenth Amendment (for the states).77
The issue of rights exceptionalism will surely continue to occupy the
federal courts’ agenda. Indeed, as this Article goes to print, the Supreme
Court is deliberating on two cases that squarely pit immigration
exceptionalism against constitutional rights.78 In Jennings v. Rodriguez, the
Court will decide whether due process requires that certain immigration
detainees be afforded bond hearings when detained for prolonged periods.79
And, in Lynch v. Morales-Santana, the Court will decide whether statutory
gender distinctions regarding parental transfers of citizenship to children
satisfy equal protection requirements.80 In both cases, looming questions of
immigration exceptionalism may be decisive.81
In addition, jurisprudence on the incongruous treatment of state versus
federal alienage classifications continues to develop in lower federal and
state courts. Notably, these emerging cases may be smoothing out the
differences between judicial approaches to federal and state immigration-
related restrictions. However, it is not clear in which direction this
incongruity will break. One recent study suggests that lower federal courts
may be trending toward giving subfederal laws more deference, with
reasoning that seems to channel plenary power analysis.82
77 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 215–18, 226–27 (1995) (holding “that all
racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed
by a reviewing court under strict scrutiny”); see also Bolling v. Sharpe, 347 U.S. 497, 500 (1954)
(“[T]he Constitution prohibits the states from maintaining racially segregated public schools, it would
be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”).
78 See Rodriguez v. Robbins, 804 F.3d 1060 (9th Cir. 2015), cert. granted, Jennings v. Rodriguez,
136 S. Ct. 2489 (2016) (due process and statutory challenges to the federal government’s immigration
detention policies); Morales-Santana v. Lynch, 804 F.3d 520 (2d Cir. 2015), cert. granted, 136 S. Ct.
2545 (2016) (equal protection challenge to immigration statute’s facial gender distinctions regarding
parental conferral of derivative citizenship to children).
79 See Petition for Writ of Certiorari, Rodriguez, 136 S. Ct. 2489 (No. 15-1204).
80 See Petition for Writ of Certiorari, Morales-Santana, 136 S. Ct. 2545 (No. 15-1191).
81 In a recent article, Michael Kagan also discusses immigration laws looming problems with the
Fourth Amendment. See Michael Kagan, Immigration Law’s Looming Fourth Amendment Problem,
104 GEO. L.J. 125 (2015).
82 See generally Jenny-Brooke Condon, The Preempting of Equal Protection for Immigrants?,
73 WASH. & LEE L. REV. 77, 129–150 (2016) (citing and discussing Soskin v. Reinertson, 353 F.3d
1242 (10th Cir. 2004); Bruns v. Mayhew, 750 F.3d 61 (1st Cir. 2014); Korab v. Fink, 797 F.3d 572 (9th
Cir. 2014); Hong Pham v. Starkowski, 16 A.3d 635 (Conn. 2011); Doe v. Comm’r of Transitional
Assistance, 773 N.E.2d 404 (Mass. 2002)). Professor Condon argues that these cases “reflect a
congressional imprimatur theory of state alienage discrimination.” Id. at 133. Moreover, she argues that
these decisions “turning back equal protection challenges to states’ unequal allocation of state resources
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B. Federalism
For the nation’s first hundred years, the federal government hardly
regulated immigration.83 Instead, states and local jurisdictions did.84 Later,
in the mid- to late-nineteenth century, the Court interpreted the Constitution
to vest immigration power solely in the federal government. And, as a
consequence, the Court struck down several subfederal immigration laws
of that era.85
Until recently, the Court’s general hostility to state and local
immigration measures quieted most subfederal attempts to regulate
immigrants.86 The past decade, however, has witnessed an unprecedented
surge in state and local immigration initiatives.87 The reasons behind this
trend are a matter of some debate, but partisan polarization and political
opportunism are perhaps the primary drivers.88 Viewed broadly, the
“subfederal immigration revolution” captures a range of political
preferences for our ailing immigration system, especially as Congress
effectively remains sidelined.89
to legal residents and citizens illustrate courts’ tendency to view such issues with a formalism that
insufficiently probes state responsibility for immigrants’ unequal treatment, and instead
disproportionately credits congressional immigration prerogatives . . . .” Id. at 138.
83 See Neuman, supra note 51, at 1841–80.
84 See id. (explaining how states regulated migration through ports-of-entry taxes and restrictions
on the movement of paupers, criminals, and those posing health risks); GULASEKARAM &
RAMAKRISHNAN, supra note 31, ch. 3 (chronicling state and local restrictionist laws from 1876 through
the present day).
85 Henderson v. Mayor of N.Y., 92 U.S. 259, 273–75 (1875) (striking down requirement of a bond
to be posted by shipmasters for arriving alien passengers); Chy Lung v. Freeman, 92 U.S. 275, 276,
280–81 (1875) (striking down state regulation that imposed a bond for arriving alien passengers deemed
to be “lewd and debauched”); The Passenger Cases, 48 U.S. (7 How.) 283, 572–73 (1849) (striking
down state laws that imposed taxes on arriving alien ship passengers).
86 See, e.g., Toll v. Moreno, 458 U.S. 1, 17 (1982) (holding that state denial of student financial aid
to certain visa holders was preempted); Graham v. Richardson, 403 U.S. 365, 376–80 (1971) (striking
down state welfare laws that discriminated against legal permanent residents); Takahashi v. Fish &
Game Comm’n, 334 U.S. 410, 419 (1948) (striking down state alienage restriction on commercial
fishing licenses); Hines v. Davidowitz, 312 U.S. 52 (1941) (striking down state alien registration
scheme); Truax v. Raich, 239 U.S. 33 (1915) (striking down state law prohibiting hiring of noncitizens);
cf. Huntington, supra note 69, at 822–23 (noting that “states and localities have not enacted pure
immigration laws since the end of the nineteenth century”).
87 See GULASEKARAM & RAMAKRISHNAN, supra note 31, at 5–8, 57–59; MOTOMURA, supra note
24, at 58–59, 80–81; State Laws Related to Immigration and Immigrants, NAT’L CONF. OF ST.
LEGISLATURES (Jan. 7, 2015), http://www.ncsl.org/research/immigration/state-laws-related-to-
immigration-and-immigrants.aspx [https://perma.cc/44XM-4KJZ] (tracking a steady rise in state
immigration-related laws and resolutions over the past decade).
88 GULASEKARAM & RAMAKRISHNAN, supra note 31, at ch. 4.
89 Rubenstein, supra note 29, at 81–82 (explaining that “[a]t the heart of the ‘subfederal
immigration revolution’ are two core questions”: first, “what to do about our ‘broken’ immigration
system,” and second, “which institution of government, relative to others, has the power to do what”
(footnotes omitted)).
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As noted earlier, subfederal immigration policies fill a spectrum from
restrictionist to integrationist measures.90 In short, the idea behind most
restrictionist measures is to encourage undocumented immigrants to “self-
deport.”91 Examples of restrictionist laws include those that give subfederal
officials a role in detection, arrest, and detention of noncitizens on the basis
of federal immigration violations. Restrictionist laws also make it difficult
or impossible for undocumented immigrants to rent housing, find work, or
attend public schools.92 Arizona’s harsh immigration policies, some of
which were at issue in Arizona v. United States, are just the tip of the
iceberg.93 A patchwork of restrictionist subfederal law persists throughout
the country.94
By contrast, state and local integrationist measures offer a sense of
belonging and welcoming to immigrants. Examples of integrationist laws
include so-called sanctuary laws, which limit the discretion of subfederal
officers to identify and detain individuals suspected of unlawful presence.95
Other types of integrationist laws provide public benefits to undocumented
immigrants, such as in-state college tuition, municipal identification cards,
or access to healthcare benefits.96 New York even considered extending
90 See, e.g., Stella Burch Elias, The New Immigration Federalism, 74 OHIO ST. L.J. 703 (2013)
(discussing a range of subfederal immigration-related measures).
91 See, e.g., S.B. 1070, 49th Leg., 2d Reg. Sess. § 1 (Ariz. 2010) (declaring the purpose of the Act
to be “attrition through enforcement”); see also Kris Kobach, Reinforcing the Rule of Law: What States
Can and Should Do to Reduce Illegal Immigration, 22 GEO. IMMIGR. L.J. 459, 472 (2008) (promoting
restrictionist state and local laws as a means to self-deportation). Incidentally, self-deportation, in
general, is not something that the federal government disapproves of. See Kevin R. Johnson,
Government Ads Nudge Immigrants to Self-Deport, IMMIGRATIONPROF BLOG (Aug. 13, 2008), http://
lawprofessors.typepad.com/immigration/2008/08/government-ads.html [https://perma.cc/MS5C-SEJZ].
92 See MOTOMURA, supra note 24, at 58–59, 80–81.
93 Arizona’s S.B. 1070 contained several provisions, but four were at issue in the Supreme Court
case. See supra note 26 (providing a capsule summary of the provisions at issue in the Arizona
litigation). The Court invalidated three of the four provisions, leaving only Section 2(B) in force.
Arizona v. United States, 132 S. Ct. 2492, 2510 (2012). Litigation on the discriminatory potential of
Section 2(B) continued in a separate suit, which was recently settled by the plaintiffs and Attorney
General of Arizona, rendering the provision unenforceable. Valle del Sol v. Whiting, No. CV 10-1061-
PHX-SRB, 2012 WL 8021265, at *1 (D. Ariz. Sept. 5, 2012).
94 See State Laws Related to Immigration and Immigrants, supra note 87 (tracking state and local
immigration initiatives).
95 See Barbara E. Armacost, ‘Sanctuary’ Laws: The New Immigration Federalism (Virginia Pub.
Law and Legal Theory, Research Paper No. 2016-45), https://papers.ssrn.com/sol3/papers.cfm?abstract
_id=2823925 [https://perma.cc/D24H-3PMQ]; “Sanctuary Cities,” Trust Acts, and Community
Policing Explained, supra note 27 (describing federal sanctuary laws, which generally limit local law
enforcement from actively assisting in immigration enforcement); see also Ingrid V. Eagly, Immigrant
Protective Policies in Criminal Justice, 95 TEX. L. REV. 245 (2016) (providing a descriptive and
empirical account of recent subfederal law enforcement policies).
96 See GULASEKARAM & RAMAKRISHNAN, supra note 31, at 5–8, 57–67, 127–41 (chronicling and
describing the range of integrationist subfederal laws); Ramakrishnan & Colbern, supra note 27
(describing “the California package” of immigrant-friendly laws).
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“state citizenship” to undocumented immigrants, along with a portfolio of
associated benefits.97 This integrationist trend encompasses lawfully
present noncitizens as well, with some measures aimed at allowing them to
vote in certain types of local elections.98
In exceptionalism’s shadow, questions proliferate over whether these
subfederal initiatives can survive, and if so, which ones and why not others.
The uncertainty is mostly of the Court’s own making. Its immigration–
federalism jurisprudence consists of a mash of preemption- and rights-
based rationales, which are partly exceptional and partly not.99
Most notably, the Court applies mainstream statutory preemption
doctrines to test subfederal immigration laws. Under the Court’s statutory
preemption taxonomy, Congress can expressly or impliedly preempt
subfederal laws.100 For implied preemption, Congress’s intent can be
inferred from a framework of regulation “so pervasive . . . that Congress
left no room for the States to supplement it” or where a “federal interest is
so dominant that the federal system will be assumed to preclude
enforcement of state laws on the same subject” (i.e., field preemption).101
Moreover, state laws are preempted when they conflict with federal law,
including when they stand “as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”102 Applying this
familiar framework, for example, the Court recently considered whether
congressional statutes expressly or impliedly preempted Arizona’s laws
97 See Peter L. Markowitz, Undocumented No More: The Power of State Citizenship, 67 STAN. L.
REV. 869 (2015) (explaining and defending the legality of the proposed state citizenship bill).
Ultimately, the bill did not pass, although the idea behind it and its provisions remain poignant and
revivable in New York and elsewhere.
98 Kanishk Tharoor, Non-Citizens in New York City Could Soon Be Given Right to Vote,
GUARDIAN (Apr. 2, 2015), https://www.theguardian.com/us-news/2015/apr/02/new-york-city-non-
citizens-local-elections [https://perma.cc/TL2R-WTPK]; Pamela Constable, D.C., Other Cities Debate
Whether Legal Immigrants Should Have Voting Rights, WASH. POST (Feb. 9, 2015), https://
www.washingtonpost.com/local/should-legal-immigrants-have-voting-rightscontentious-issue-comes-
to-dc-other-cities/2015/02/09/85072440-ab0f-11e4-ad71-7b9eba0f87d6_story.html [https://perma.cc/
T74G-FDJM].
99 See, e.g., Graham v. Richardson, 403 U.S. 365, 376–78 (1971) (striking down alienage
distinctions in state welfare laws on both preemption and equal protection grounds); Truax v. Raich,
239 U.S. 33, 39, 41–42 (1915) (striking down state law limiting employment of noncitizens as a
violation of the Fourteenth Amendment, but also insisting that that the authority to control immigration
is vested solely with the federal government); see also GULASEKARAM & RAMAKRISHNAN, supra note
31, at 187 (“[K]ey foundational immigration federalism cases have consistently evinced an implicit
meshing of both federalism and equal protection doctrine.”).
100 See Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992).
101 See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (citations omitted).
102 Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (footnote omitted).
111:583 (2017) Immigration Exceptionalism
603
that regulated employment of undocumented immigrants, with mixed
results.103
Beyond the mainstream, immigration federalism jurisprudence is
inflected with at least two (maybe three) exceptional features. Namely: (1)
the federal exclusivity principle, (2) preemption via nonbinding executive
enforcement policies; and, less clearly, (3) incorporating equality norms
into preemption analysis.
1. The Exclusivity Principle.—The federal government has exclusive
control over the “regulation of immigration.”104 Any state attempts to
regulate in this sphere are per se invalid under this standard.105 The
exclusivity doctrine’s scope, however, depends on what qualifies as
immigration regulation.
In De Canes v. Bica, the Court provided some guidance, explaining
that immigration regulation pertains only to the admission and expulsion of
noncitizens.106 So construed, the exclusivity principle has little or no
bearing on state and local “alienage” regulations, which are defined
residually as policies that pertain to immigrants but that do not govern their
admission or expulsion.107
The line between immigration regulation and alienage regulation can
be hard to discern in practice.108 Functionally speaking, many laws that
pertain to immigrants—both at the federal and subfederal level—may
impact migration decisions, indirectly even if not directly. For present
purposes, however, what matters is that the exclusivity principle
automatically preempts subfederal laws that qualify as immigration
regulation (whereas subfederal alienage regulations may still be displaced
by other preemption doctrines but not under the exclusivity doctrine).109
103 See Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (applying mainstream preemption
doctrines and striking down sanctions directed at unlawful workers); Chamber of Commerce v.
Whiting, 563 U.S. 582, 588, 593–611 (2010) (applying mainstream preemption doctrines and upholding
state licensing sanctions directed at employers that knowingly hired unauthorized workers).
104 See, e.g., De Canas v. Bica, 424 U.S. 351, 353–54 (1976).
105 See, e.g., Toll v. Moreno, 458 U.S. 1, 17 (1982) (holding that state denial of student financial
aid to certain visa holders was preempted).
106 See 424 U.S. at 355.
107 See, e.g., Gabriel J. Chin & Marc L. Miller, The Unconstitutionality of State Regulation of
Immigration Through Criminal Law, 61 DUKE L.J. 251, 259–61, 263–64, 269 (2011) (defining
“alienage law” in opposition to “immigration law”).
108 See Adam B. Cox, Immigration Law’s Organizing Principles, 157 U. PA. L. REV. 341, 351–53
(2008) (arguing that the distinction between immigration law and alienage law is misguided).
109 For instance, alienage regulations may still be preempted by federal statutes under the Court’s
mainstream preemption doctrine or by executive action. See infra Section I.B.2. See generally Arizona
v. United States, 132 S. Ct. 2492 (2012) (preempting three Arizona state laws on these grounds).
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Unlike the Court’s statutory preemption doctrine, preemption via the
exclusivity principle is pegged to the Constitution itself (or, more precisely,
to the Court’s interpretation of the Constitution’s structural allocations of
power).110 Although there is room for disagreement, we think it is fair to
characterize the exclusivity principle as an exceptional relic of “dual
federalism,” under which federal or state power over a subject is regarded
as mutually exclusive.111 However, dual federalism has long been regarded
as dead in almost all other contexts.112 Instead, garden-variety domestic law
is characterized today by federal–state regulatory overlap, of both
“cooperative” and “uncooperative” varieties.113
To be sure, federal statutes and regulations (as opposed to the
Constitution itself) sometimes displace all state or local law in a particular
field.114 In the Court’s own words, Congress’s intent is the “ultimate
110 See Huntington, supra note 69, at 821–24 (discussing the genesis of the notion of “exclusive”
federal authority over immigration).
111 See Edward S. Corwin, The Passing of Dual Federalism, 36 VA. L. REV. 1, 3–4 (1950)
(describing this federalist conception).
112 See generally id. (providing the classic account of this conceptual and doctrinal transformation).
Even as an expression of dual federalism, the exclusivity principle as it operates in immigration law is a
special type: the federal government “devolves” its exclusive immigration power to states. For example,
Congress expressly permits states to treat classes of immigrants differently as pertains to federal welfare
benefits, see Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No.
104-193, §§ 400–451, 110 Stat. 2105, 2260–77, and expressly allows a role for subfederal actors to
enforce federal immigration regulations, see 8 U.S.C. § 1357(g) (2012). The government’s official
position on immigration enforcement is that it is both devolvable to subfederal actors, and, moreover,
that unless preempted, states have some inherent authority to enforce at least certain aspects of
immigration law. See Non-Preemption of the Auth. of State & Local Law Enforcement Officials to
Arrest Aliens for Immigration Violations, 26 Op. O.L.C. 1 (2002). That devolution would not be
possible under traditional conceptions of dual federalism. Cf. Huyen Pham, The Inherent Flaws in the
Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the
Constitution, 31 FLA. ST. U. L. REV. 965, 987 (2004) (“[T]he immigration power is an exclusively
federal power that must be exercised uniformly.”); Michael J. Wishnie, Laboratories of Bigotry?
Devolution of the Immigration Power, Equal Protection, and Federalism, 76 N.Y.U. L. REV. 493, 500
(2001) (arguing that “Congress’s 1996 effort to devolve its federal immigration power is
constitutionally impermissible”).
113 See Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 YALE L.J.
1256, 1258–84 (2009); ROBERT A. SCHAPIRO, POLYPHONIC FEDERALISM: TOWARD THE PROTECTION
OF FUNDAMENTAL RIGHTS (2009) (explaining that regulatory overlap is common and discussing the
values of it); see also Cristina M. Rodríguez, Negotiating Conflict Through Federalism: Institutional
and Popular Perspectives, 123 YALE L.J. 2094, 2098 (2014) (observing that the Court’s immigration
federalism looks quite different from its economic federalism); Cox, supra note 29, at 37–41
(explaining how the Arizona Court’s conception of immigration enforcement contrasts with other
enforcement contexts).
114 See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (“The scheme of federal
regulation may be so pervasive as to make reasonable the inference that Congress left no room for the
States to supplement it.”).
111:583 (2017) Immigration Exceptionalism
605
touchstone” in every preemption case.115 But this type of statutory field
preemption is rare.116 More to the point, the exclusivity principle operates to
preempt state law irrespective of congressional intent, and for that reason
alone is different than statutory field preemption.
The exclusivity principle seems to have less traction in the Supreme
Court than it once did (although lower court judges still invoke the doctrine
rather liberally).117 In Arizona, for example, the Supreme Court treated the
state’s restrictionist laws as alienage regulations, despite Arizona’s
announced purpose to encourage undocumented immigrants to self-
deport.118 Likewise, in Chamber of Commerce v. Whiting, the Court upheld
two other state immigration-related provisions without gesturing to the
exclusivity principle.119 In both Arizona and Whiting, the Court arguably
could have characterized and treated the state laws as immigration
regulation. If nothing else, the Court’s treatment of these state laws as
alienage regulations suggest that the zone of federal exclusivity—over the
115 See, e.g., Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008); Retail Clerks Int’l Ass’n, Local
1625 v. Schermerhorn, 375 U.S. 96, 103 (1963).
116 See Southland Corp. v. Keating, 465 U.S. 1, 18 (1984) (“[E]ven where a federal statute does
displace state authority, it rarely occupies a legal field completely, totally excluding all participation by
the legal systems of the states . . . . Federal legislation, on the whole, has been conceived and drafted on
an ad hoc basis to accomplish limited objectives.” (internal quotation mark omitted)).
117 Cf. Arizona v. United States, 132 S. Ct. 2492, 2501 (2012) (“In preemption analysis, courts
should assume that ‘the historic police powers of the States’ are not superseded ‘unless that was the
clear and manifest purpose of Congress.’” (quoting Rice, 331 U.S. at 230)). Recent lower court
treatments have relied to greater and lesser extents on the exclusivity principle. See, e.g., Villas at
Parkside Partners v. City of Farmers Branch, 726 F.3d 524, 546 (5th Cir. 2013) (Dennis, J., specially
concurring) (arguing that city’s policy penalizing landlords for renting property to unauthorized
immigrants “violates the principle that the removal process is entrusted to the discretion of the [f]ederal
[g]overnment” (quoting Arizona, 132 S. Ct. at 2506)); id. at 543 (Reavley, J., concurring in judgment)
(“Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens . . . and
to cause their removal, it contravenes the federal government’s exclusive authority on the regulation of
immigration . . . .”); United States v. Alabama, 691 F.3d 1269, 1294–96 (11th Cir. 2012) (characterizing
Alabama’s law that invalidated contracts entered into by unauthorized immigrants as “a calculated
policy of expulsion” and “a thinly veiled attempt to regulate immigration,” and therefore striking down
the law because the power to expel immigrants “is retained only by the federal government”); Lozano v.
Hazleton, 620 F.3d 170, 221–22 (3d Cir. 2010) (noting that the city ordinance at issue was designed to
effectively remove undocumented immigrants from the political subdivision); cf. Ariz. Dream Act Coal.
v. Brewer, 818 F.3d 901, 917 (9th Cir. 2016) (holding that Arizona’s classifications of undocumented
immigrants was preempted, but sending mixed signals on whether preemption was attributable to the
exclusivity principle or the Immigration and Nationality Act’s field-preemption).
118 See S.B. 1070, 49th Leg., 2d Reg. Sess. (Ariz. 2010) (“The legislature declares that the intent of
this act is to make attrition through enforcement the public policy of [the] state . . . . [T]his act [is]
intended . . . to discourage and deter the unlawful entry and presence of aliens . . . .”); Arizona, 132 S.
Ct. at 2497 (explicitly noting this state intent).
119 563 U.S. 582, 587, 594–607 (2011) (applying ordinary statutory preemption principles to state
law penalizing employment of unauthorized workers).
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admission and expulsion of noncitizens—will be tightly construed by the
Court in future cases.
2. Executive Preemption via Nonbinding Policy.—Yet, just as the
Court seems to be cabining the exclusivity principle, it may be embracing a
new form of federalism exceptionalism. More specifically, the Arizona
majority strongly implied (if not held) that executive branch enforcement
policies had independent preemptive effect.120 As earlier explained, a valid
congressional statute clearly has preemptive effect.121 Furthermore, the
Court has long held that federal agency action with the “force of law” can
have preemptive effect.122 Thus, for example, agency regulations
promulgated pursuant to notice-and-comment rulemaking procedures can
120 See Arizona, 132 S. Ct. at 2506 (finding one of the state laws preempted on the partial ground
that state law “could be exercised without any input from [the Executive] about whether an arrest is
warranted in a particular case,” thus “allow[ing] the State to achieve its own immigration policy”); see
also David S. Rubenstein, The Paradox of Administrative Preemption, 38 HARV. J.L. & PUB. POL’Y
267, 280–81 (2015) (explaining the ways in which the Court’s signals were mixed on the issue of
whether executive enforcement policies can, or did, have preemptive effect); Eric Posner, The Imperial
President of Arizona, SLATE (June 26, 2012, 12:04 PM), http://www.slate.com/articles/
news_and_politics/jurisprudence/2012/06/the_supreme_court_s_arizona_immigration_ruling_and_the_
imperial_presidency_.html [https://perma.cc/93RJ-W8US] (observing that the Arizona majority found
certain provisions of S.B. 1070 preempted, not because they conflicted with federal law, but because
they “conflict[ed] with the president’s policy”).
121 See, e.g., Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (“‘[T]he purpose of Congress is the
ultimate touchstone’ in every pre-emption case.” (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996)); see also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 9–20 (1824) (priming preemption decision
with an exploration of whether the federal law at issue was valid under the Commerce Clause in the
first place).
122 See supra note 13. In general, the term “force of law” connotes an agency policy or action that
is binding on the public or agency. Whether a particular agency action has the force of law—and its
implications—can depend on context. Cf. Sidney A. Shapiro & Richard W. Murphy, Eight Things
Americans Can’t Figure Out About Controlling Administrative Power, 61 ADMIN. L. REV. 5, 23 (2009)
(describing the “force of law” as “one of the more pernicious phrases in American administrative law”);
see also Kristen E. Hickman, Unpacking the Force of Law, 66 VAND. L. REV. 465, 467 (2013)
(exploring the “old perennial” question: “what does it mean for agency action to carry the ‘force of
law’?”). The confusion is partly of the Court’s own making. It employs the term in at least three
administrative law contexts: (1) administrative preemption, (2) judicial deference to agency action, and
(3) exemptions from notice-and-comment rulemaking under the Administrative Procedure Act (APA).
For discussions of these alternative uses of force of law, see Rubenstein, supra note 120, at 278–79
(discussing force of law in the context of administrative preemption); Hickman, supra, at 472–90
(discussing force of law in the context of the Court’s Chevron doctrines and APA rulemaking
exceptions). As a general matter, agency adjudications and legislative rules have the force of law,
whereas other agency action—such as “general statements of policies” expressed in agency
memoranda, manuals, regulatory preambles, and amicus briefs—do not have the force of law. See
Wyeth v. Levine, 555 U.S. 555, 580 (2009) (holding that preamble to regulation, which was not
binding, could not have preemptive effect); Christensen v. Harris County, 529 U.S. 576, 587 (2000)
(stating that, for the purposes of applying the Chevron deference doctrine, agency opinion letters,
interpretations in policy statements, agency manuals, and enforcement guidelines do not have the force
of law).
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preempt conflicting state law.123 Arguably, however, executive enforcement
policies that are not promulgated pursuant to these procedures are not
“law,” and thus should not have preemptive force.124
In a partially concurring and partially dissenting opinion, Justice Alito
drew attention to this point in Arizona.125 He rejected the federal
government’s “remarkable” position that “a state law may be pre-empted,
not because it conflicts with a federal statute or regulation, but because it is
inconsistent with a federal agency’s current enforcement priorities . . .
[which] are not law.”126 But the majority did not directly engage this
objection. Instead, the Court relied on the Executive’s enforcement policies
as a ground (or partial basis) for preempting at least one, and maybe two, of
the Arizona provisions at issue.127
3. Equal Pro-Emption.—A third immigration federalism idea may
also be unfolding (or, depending on perspective, resurfacing) in the lower
courts. Today, some courts may be incorporating an equality norm into
preemption analysis in ways that load the dice against subfederal
123 See, e.g., Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 881 (2000). In recent years, the
subject of administrative preemption has drawn extensive academic interest. Some commentators
support administrative preemption on constitutional and normative grounds. See, e.g., Thomas W.
Merrill, Preemption and Institutional Choice, 102 NW. U. L. REV. 727, 761–66 (2008); Gillian E.
Metzger, Administrative Law as the New Federalism, 57 DUKE L.J. 2023, 2091–100 (2008); Henry Paul
Monaghan, Supremacy Clause Textualism, 110 COLUM. L. REV. 731, 756–58 (2010); Catherine M. Sharkey,
Federalism Accountability: “Agency-Forcing” Measures, 58 DUKE L.J. 2125, 2127–28, 2158–63
(2009); Peter L. Strauss, The Perils of Theory, 83 NOTRE DAME L. REV. 1567, 1593–94 (2008). Others,
however, have been far more critical of administrative preemption. See, e.g., Bradford R. Clark, Separation of
Powers as a Safeguard of Federalism, 79 TEX. L. REV. 1321, 1430–38 (2001); David S. Rubenstein,
Delegating Supremacy?, 65 VAND. L. REV. 1125, 1153–63 (2012); Ernest A. Young, Executive
Preemption, 102 NW. U. L. REV. 869, 869–71 (2008).
124 Cf. Wyeth, 555 U.S. at 580 (holding that nonbinding preamble to regulation could not have
preemptive effect). Outside of the immigration context, commentators that have addressed the issue are
generally of the view that agency policies must first undergo notice and comment, or otherwise have the
force of law, before these policies may have preemptive effect. See, e.g., Brian Galle & Mark
Seidenfeld, Administrative Law’s Federalism: Preemption, Delegation, and Agencies at the Edge of
Federal Power, 57 DUKE L.J. 1933, 2010–12 (2008); Merrill, supra note 123, at 761–66; Rubenstein,
supra note 29, at 129 n.247; Young, supra note 123, at 897–900; see also supra note 122 and
accompanying text (discussing force of law). Catherine Kim argues, however, that for immigration in
particular, nonbinding enforcement policies should nevertheless have preemptive effect. See Catherine
Y. Kim, Immigration Separation of Powers and the President’s Power to Preempt, 90 NOTRE DAME L.
REV. 691, 728–32 (2014). But see David S. Rubenstein, Black-Box Immigration Federalism, 114 MICH.
L. REV. 983, 1001–04 (2016) (taking the opposite view and explaining the problems with preemption
via nonbinding enforcement policies on constitutional and normative grounds).
125 See Arizona, 132 S. Ct. at 2527 (Alito, J., concurring in part and dissenting in part).
126 See id.
127 See supra note 120 and accompanying text.
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608
restrictionist laws.128 One of us has recently dubbed this idea “Equal Pro-
Emption” to capture its hybrid composition.129
The Third Circuit’s pre-Arizona decision in Lozano v. City of
Hazleton arguably fits this mold.130 There, the court struck down
restrictionist city rental and employment ordinances on preemption
grounds. Yet, with seeming relevance, the court’s written opinion also
emphasized the employment ordinance’s discriminatory nature.131
More recently, in Arizona Dream Act Coalition v. Brewer,132 the Ninth
Circuit offered an interesting twist on this theme. At issue was whether
Arizona’s policy of denying driver’s licenses to certain undocumented
immigrants violated equal protection or was otherwise preempted by
federal law.133 During the preliminary injunction phase, the Ninth Circuit
ruled against the state on equal protection grounds.134 Thus, the court had
no need to rule on preemption grounds and expressly declined to do so
(though it noted that the plaintiffs’ preemption claim was likely viable).135
However, in the permanent injunction phase, the court switched gears. Still
ruling against the state, the court invoked the doctrine of constitutional
avoidance and based its holding on preemption grounds.136
128 See Lucas Guttentag, The Forgotten Equality Norm in Immigration Preemption:
Discrimination, Harassment, and the Civil Rights Act of 1870, 8 DUKE J. CONST. L. & PUB. POL’Y 1,
10–40 (2013) (tracing this idea and its development in the pre-1980 era); Hiroshi Motomura, The Rights
of Others: Legal Claims and Immigration Outside the Law, 59 DUKE L.J. 1723, 1736–46 (2010)
(discussing the relationship between the preemption and equal protection arguments).
129 See Rubenstein, supra note 124, at 1006.
130 620 F.3d 170 (3d Cir. 2010), vacated, 131 S. Ct. 2958 (2011).
131 Id. at 217.
132 818 F.3d 901 (9th Cir. 2016), reh’g denied and opinion amended, 2017 WL 461503 (Feb. 2,
2017).
133 Id. at 905–06. More specifically, the Arizona policy precluded beneficiaries of the Obama
Administration’s Deferred Action for Childhood Arrivals (DACA) program from receiving state
driver’s licenses, even though other classes of undocumented immigrants could receive such licenses.
Id. at 907.
134 Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1058 (9th Cir. 2014) (noting that the policy
accepts Employment Authorization Documents as proof of lawful presence for two groups of similarly
situated immigrants but not for DACA recipients).
135 Id. at 1061–63.
136 Ariz. Dream Act Coal., 818 F.3d at 905–06, 920. Interestingly, the Ninth Circuit deemed
preemption a nonconstitutional basis for deciding the case, despite preemption’s roots in the Supremacy
Clause. But, even assuming that statutory preemption can be deemed nonconstitutional, this logic would
not seem to extend to structural preemption via the exclusivity principle. Whereas statutory preemption
links to the Supremacy Clause’s coverage of “Laws . . . made in [p]ursuance [of the Constitution],”
structural preemption links to the Constitution itself. See supra notes 104–10 and accompanying text;
see also Rubenstein, supra note 29, at 93–96 (discussing the different sources of preemption under the
Supremacy Clause). Intentionally or not, the Ninth Circuit’s reasoning in Arizona Dream Act Coalition
blurred past this distinction. Parts of its reasoning and language sounds in statutory field preemption
(insofar as it cited to the INA as the preemptive source); other parts, however, sound in structural
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609
Older federalism cases also leveraged discrimination concerns as a
reason, or partial reason, for finding state immigration laws preempted.137
In some of those cases, the Court found actual equal protection violations
(thus establishing the predicate rights violation) and/or expressly invoked
the Civil Rights Act of 1870 (thus pinning preemption to a statute, rather
than a more nebulous equality norm).138
Yet, perhaps most important for present purposes, those earlier
decisions predate the Supreme Court’s subsequent developments in equal
protection and preemption jurisprudence.139 As compared to equal
protection, Equal Pro-Emption relaxes or departs from the Court’s general
requirement that the plaintiff demonstrate a discriminatory purpose when
challenging facially neutral laws.140 Indeed, circumventing the Court’s
mainstream equal protection jurisprudence may be the sine qua non of
Equal Pro-Emption.141 Moreover, the Court does not appear to be imbuing
preemption analysis with an equality norm in other areas of law. Thus,
even if Equal Pro-Emption was not exceptional fifty years ago, it might be
today if measured against the Court’s extant equal protection and
preemption doctrines.
C. Separation of Powers
Many of the Court’s foundational immigration cases refer to the
federal government’s plenary power without differentiating between the
preemption (insofar as it cited to and uses the language of structural preemption cases). Ariz. Dream Act
Coal., 818 F.3d at 914–17. For more discussion on this point, see Alan Vester, Comment, Hybrid
Immigration Preemption, 56 WASHBURN L.J. (forthcoming 2017) (on file with authors).
137 See GULASEKARAM & RAMAKRISHNAN, supra note 31, at 186–88 (describing how a handful of
immigration cases from the early- to mid-twentieth century intermingled preemption analysis with
discussions of discrimination).
138 See, e.g., Graham v. Richardson, 403 U.S. 365, 376–77 (1971); Takahashi v. Fish & Game
Comm’n, 334 U.S. 410, 419–20 (1948); Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941). The key
provision of the Civil Rights Act of 1870 provides, in relevant part, that “[a]ll persons . . . shall have the
same right” as “white citizens” in “every State and Territory” to certain enumerated rights. See
42 U.S.C. § 1981(a) (2012).
139 See Arizona v. United States, 132 S. Ct. 2492, 2492–511 (2012) (making no mention of the
Civil Rights Act of 1870, or an equality norm, in upholding one state law and preempting three others);
Chamber of Commerce v. Whiting, 563 U.S. 582, 582–611 (2011) (upholding state law against
preemption challenge and making no mention of the Civil Rights Act of 1870); De Canas v. Bica,
424 U.S. 351, 354–56 (1975) (finding that state law was not an “invalid state incursion on federal
power” without relying on grounds of the Equal Protection Clause or the Civil Rights Act of 1870); see
also Rubenstein, supra note 124, at 1006–12 (elaborating on these points).
140 See Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 269–70 (1977)
(holding that plaintiffs did not meet burden of proving racial discrimination, despite evidence of a
racially discriminatory impact); Washington v. Davis, 426 U.S. 229, 239 (1976) (requiring plaintiffs in
an equal protection suit to show evidence of discriminatory intent, and not just discriminatory impact).
141 MOTOMURA, supra note 24, at 135 (explaining how a judicially countenanced equality norm
can turn “a losing equal protection . . . challenge” into “a winning preemption challenge”).
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federal political branches.142 But what happens when congressional and
executive power come into conflict? That issue reached a boiling point
during the Obama Administration, owing to congressional gridlock and
President Obama’s insistence—in words and action—that “we can’t wait”
for Congress.143 And it is resurfacing again with President Trump’s
invocation of broad executive authority.
One place to look for answers is the Take Care Clause, which instructs
the President to “take Care that the laws be faithfully executed.”144 But the
parameters of this provision are murky.145 On some occasions, the Court
has conjured the Take Care Clause for the proposition that the President
cannot suspend or supersede Congress’s laws;146 at other times, however,
the Court has cited the Take Care Clause as the fount of inherent
prosecutorial discretion.147 Thus, even outside of the immigration context,
questions of executive authority vis-à-vis Congress remain unsettled in the
Court’s jurisprudence. Accordingly, separation of powers arguments about
the lawmaking relationship between the President and Congress commonly
draw from scholarly assessments, historical practice, and legal memoranda
from the Department of Justice’s Office of Legal Counsel.
142 See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (“The power of exclusion
of foreigners being an incident of sovereignty belonging to the government of the United States . . .
cannot be granted away or restrained on behalf of any one.” (emphasis added)).
143 Barack Obama, President, Remarks by the President on the Economy and Housing (Oct. 24,
2011), https://obamawhitehouse.archives.gov/the-press-office/2011/10/24/remarks-president-economy-
and-housing [https://perma.cc/D8FN-3C9A] (“So I’m here to say to all of you . . . we can’t wait for an
increasingly dysfunctional Congress to do its job. Where they won’t act, I will.”); Taking Action on
Immigration, supra note 4 (outlining President Obama’s immigration plans and actions).
144 U.S. CONST. art. II, § 3.
145 See Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. PA. L. REV.
1835, 1838 (2016) (“The Court’s decisions rely heavily on the Take Care Clause but almost never
interpret it, at least not in any conventional way.”).
146 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“In the
framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes
the idea that he is to be a lawmaker.”); Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524,
613 (1838) (rejecting the notion that “the obligation imposed on the President to see the laws faithfully
executed[] implies a power to forbid their execution”); see also Heckler v. Chaney, 470 U.S. 821, 832–
33 n.4 (1985) (suggesting that judicial review might be available to review acts of executive abdication
of statutory responsibilities).
147 See, e.g., United States v. Armstrong, 517 U.S. 456, 464 (1996) (concluding that the Attorney
General and U.S. Attorneys have wide prosecutorial discretion “because they are designated by statute
as the President’s delegates to help him discharge his constitutional responsibility to ‘take Care that the
Laws be faithfully executed’” (quoting U.S. CONST. art. II, § 3)); Heckler, 470 U.S. at 832 (“[A]n
agency’s refusal to institute proceedings shares to some extent the characteristics of the decision of a
prosecutor in the Executive Branch not to indict—a decision which has long been regarded as the
special province of the Executive Branch, inasmuch as it is the Executive who is charged by the
Constitution to ‘take Care that the Laws be faithfully executed.’” (quoting U.S. CONST. art. II, § 3)).
111:583 (2017) Immigration Exceptionalism
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The Court’s seminal decision in INS v. Chadha was the most direct, if
not the only, jurisprudential foray into the lawmaking relationship between
Congress and the Executive in immigration.148 In Chadha, the Court
famously struck down Congress’s “[l]egislative [v]eto,” which permitted
the House or Senate to overturn the Attorney General’s discretionary
decision to suspend the deportation of immigrants.149 According to the
Court, the legislative veto violated the Constitution’s bicameralism and
presentment requirements for federal lawmaking.150 Tellingly, the majority
opinion brushed the plenary power doctrine aside in this case.151
Although Chadha might indicate that normal separation of powers
principles apply to immigration, a broader historical perspective
complicates the picture. In an influential study, Professors Adam Cox and
Cristina Rodríguez suggest that the lawmaking relationship between the
President and Congress has vacillated over time between exceptional and
nonexceptional modes.152 They offer historical examples that arguably
involved unilateral presidential action, such as the Bracero Program in the
mid-twentieth century.153 On their account, this unilateralism was an
exercise of inherent executive authority, which might only be justified
through an exceptionalism frame.154 Similarly, in United States ex rel.
Knauff v. Shaughnessy, the Court suggested that the Executive possessed
inherent and broad power over immigration.155
On the other hand, as Cox and Rodríguez explain, Congress has
delegated significant authority to the Executive Branch in more recent
148 462 U.S. 919, 934–35 (1983).
149 Id. at 925 n.2, 934, 959.
150 Id. at 955–58.
151 Id. at 940–44 (discussing whether the “plenary authority of Congress over aliens” made the
legislative veto provision a nonjusticiable political question but concluding that no political question
was presented); see also Legomsky, supra note 1, at 301–02 (arguing that in Chadha, “it seems clear
that the Court made a conscious decision not to apply the plenary power doctrine”).
152 Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law, 119 YALE L.J.
458, 461, 476–78 (2009) (“These alternative theories—one emphasizing immigration’s exceptional
position within the constitutional structure, the other its ordinary place in administrative law—raise the
question of which account better fits the historical contours of the relationship between the President
and Congress.”).
153 Id. at 485. The Bracero Program, which operated from 1942 to 1964, provided for temporary
Mexican laborers (“braceros”) to lawfully enter the United States on a seasonal basis to satisfy labor
demands in the United States. Id. at 485–90. For most of its existence, the Bracero Program was based
on a series of agreements between the United States and Mexico, most significantly the bilateral
agreements of 1942 and 1951. Id. These agreements detailed the volume and conditions under which
laborers from Mexico could work in the United States. For an excellent account of this program, see
BARBARA A. DRISCOLL, THE TRACKS NORTH: THE RAILROAD BRACERO PROGRAM OF WORLD WAR II
51–58 (1999).
154 Cox & Rodríguez, supra note 152, at 490–91.
155 338 U.S. 537, 543 (1950).
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times.156 And, in turn, “the Court’s understanding of the relationship
between the branches [has taken] on more of the trappings of typical
separation of powers jurisprudence, with delegation serving as the primary
mechanism for power allocation.”157
But between these two poles of exceptional and mainstream executive
authority, Cox and Rodríguez describe a “two-principals” lawmaking
model that, in their view, best captures the immigration policymaking
relationship between the political branches today.158 Under this model, both
Congress and the President are independent sources of authority.
Fundamentally, the two-principals model rejects the conventional
principal–agent model. Under the latter, Congress and the President are
cast as principal and agent, respectively. As put by the Court in
Youngstown Sheet & Tube Co. v. Sawyer: “[T]he President’s power to see
that the laws are faithfully executed refutes the idea that he is to be a
lawmaker.”159
156 Cox & Rodríguez, supra note 152, at 490–91.
157 Id. at 476.
158 See Adam B. Cox & Cristina M. Rodríguez, The President and Immigration Law Redux,
125 YALE L.J. 104, 110–11, 159–73 (2015) [hereinafter Cox & Rodriguez, Redux] (“Far from fitting
into a faithful-agent framework, therefore, our modern system of presidentially driven, ex post
immigration screening is better understood as embodying a ‘two-principals’ model of immigration
policymaking.”); see also Cox & Rodríguez, supra note 152, at 485 (“[T]he intricate rule-like
provisions of the immigration code, which on their face appear to limit executive discretion, actually
have had the effect of delegating tremendous authority to the President to set the screening rules for
immigrants—that is, to decide on the composition of the immigrant community.”).
159 343 U.S. 579, 587–88 (1952); see also Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446
(2014) (“The power of executing the laws . . . does not include a power to revise clear statutory terms
that turn out not to work in practice.”). At least as a formal matter, the OLC memorandum defending
DAPA ascribes to this conventional model, insofar as it attempts to anchor the Executive’s program to
ostensible congressional priorities reflected in the INA. The Department of Homeland Security’s
Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer
Removal of Others, 38 Op. O.L.C. 1, 24 (2014) [hereinafter The Opinion], https://www.justice.gov/
sites/default/files/olc/opinions/attachments/2014/11/20/2014-11-19-auth-prioritize-removal
[https://perma.cc/MCG9-Y7FK] (“[A]ny expansion of deferred action to new classes of aliens must be
carefully scrutinized to ensure that it reflects consideration within the agency’s expertise, and that it
does not seek to effectively rewrite the laws to match the Executive’s policy preferences, but rather
operates in a manner consonant with congressional policy expressed in the statute.”). In rejecting the
principal–agent model for immigration, Cox and Rodríguez also reject the reasoning (although not the
conclusions) of the OLC memorandum. Cox & Rodríguez, Redux, supra note 158, at 146 (“[T]he
[OLC’s] congressional priorities approach perpetuates a ‘faithful-agent’ model of law enforcement that
is neither descriptively accurate nor normatively attractive.”). For other treatments of OLC’s analysis,
see Peter Margulies, Deferred Action and the Bounds of Agency Discretion: Reconciling Policy and
Legality in Immigration Enforcement, 55 WASHBURN L.J. 143, 143 (2015) (critiquing OLC’s
congressional priorities analysis, inasmuch as it “ignores the context of compromises embedded” in the
INA (internal quotation marks omitted)); Zachary Price, Two Cheers for OLC’s Opinion,
BALKINIZATION (Nov. 25, 2014, 1:30 PM), http://balkin.blogspot.com/2014/11/two-cheers-for-olcs-
opinion.html [https://perma.cc/E7JV-EG53] (commending OLC’s attempt to tie the Executive’s
111:583 (2017) Immigration Exceptionalism
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Last term, United States v. Texas presented the Court with a prime
opportunity to address the constitutional relationship between Congress and
the President in the context of immigration law (and more generally).160 At
issue was the legality of the Obama Administration’s Deferred Action for
Parents of Americans (DAPA) program,161 which offered millions of
qualifying undocumented immigrants a multi-year and renewable reprieve
from deportation, the opportunity to work legally in the country, and other
associated benefits.162
Shortly after DAPA was announced, several states joined in a lawsuit
to challenge the program on separation of powers and administrative law
grounds.163 The Fifth Circuit preliminarily enjoined the program only on the
latter basis, skirting the separation of powers question.164 When the
Supreme Court granted certiorari, it specifically requested briefing on
whether DAPA violated the Take Care Clause.165 That issue, however,
received scant attention at oral argument, and no attention in the Court’s
one-sentence per curiam decision.166
enforcement program to congressional priorities, but expressing some skepticism about whether OLC
drew the correct conclusions with respect to that analysis, for immigration and beyond).
160 See 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016)
(mem.) (per curiam). As earlier noted, the Court has provided spotty guidance on what the Take Care
Clause entails, especially for executive nonenforcement programs. See notes 144–47 and accompanying
text. Heckler v. Chaney, for instance, suggests in dicta that judicial review of agency action might be
warranted if an agency were to adopt a general policy that is an “abdication of its statutory
responsibilities.” 470 U.S. 821, 832–33 n.4 (1985). But the space between permissible prosecutorial
discretion, and executive “abdication” is potentially vast and heavily dependent on the particulars of
any given case. See id. at 831 (noting in the administrative law context that “an agency decision not to
enforce often involves a complicated balancing of a number of factors which are peculiarly within its
expertise”); see also The Opinion, supra note 159, at 7 (noting that the President’s enforcement
discretion is not limitless and citing Heckler for the proposition that the Take Care Clause does not
permit the Executive to abdicate its statutory responsibilities). United States v. Texas thus presented the
Court with an opportunity to address this issue not only in the context of immigration, but perhaps more
generally.
161 Texas, 809 F.3d 134.
162 See DAPA Memo, supra note 11; see also DACA Memo, supra note 11.
163 Complaint, Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (No. 1:14CV00254).
164 Texas, 809 F.3d 134.
165 United States v. Texas, 136 S. Ct. 906 (2016) (granting certiorari and directing the parties to
address the additional question of whether federal immigration law guidance violates the Take Care
Clause).
166 See United States v. Texas, 136 S. Ct. 2271 (mem.) (per curiam) (The full opinion reads: “The
judgment [of the Fifth Circuit] is affirmed by an equally divided Court.”). At the time of decision, the
Court was a member short. Justice Scalia’s death left a vacancy on the Court that was not filled during
the 2015 Term, which continued into the 2016 Term. Adam Liptak, Antonin Scalia, Justice on the
Supreme Court, Dies at 79, N.Y. TIMES (Feb. 13, 2016), http://www.nytimes.com/2016/02/14/us/
antonin-scalia-death.html [https://perma.cc/W3M6-EAPY]. On February 20, 2017, DHS Secretary John
Kelly issued a guidance memoranda that expressly superseded the DAPA Memo. See Memorandum
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* * *
In sum, as a purely descriptive matter, immigration is exceptional
some of the time. But that is not to say it should be, much less for the
reasons or in the ways found in the Court’s jurisprudence. We now turn to
the rich scholarship addressed to these prescriptive questions.
II. PRESCRIPTIVE EXCEPTIONALISM
As this Part explains, many (if not most) commentators engage
questions of immigration exceptionalism with a view toward vindicating
the rights and interests of immigrants. To that end, commentators
sometimes criticize the Court’s exceptional doctrines. At other times,
however, commentators work within or leverage exceptionalism to argue in
defense of particular immigration arrangements or policies.
When considered together, these doctrinal preferences seemingly
work toward a collection of ends along the rights, federalism, and
separation of powers dimensions. We refer to this set of normative
preferences as the “first-best scenario” from the vantage of immigrant
interests. Under this ideal: (1) immigrants would have robust rights
protections (the “rights preference”), (2) immigrants would be integrated
into our national community with state and local help, and, correlatively,
restrictionist subfederal policies would be preempted (the “federalism
preference”), and (3) the federal Executive would make enforcement
decisions and administrative programs that ease Congress’s harsh
deportation laws (the “separation-of-powers preference”).167
To start, it will be useful to appreciate that the first-best scenario for
immigrant interests likely depends on a propitious mix of rights
normalization and structural exceptionalism. If immigration is always
exceptional, then the rights preference cannot be realized. Conversely, if
immigration is never exceptional, then the federalism and separation of
powers preferences might not be realized. However, if immigration can be
treated exceptionally for some structural purposes, while treated normally
for constitutional rights, then perhaps the rights, federalism, and separation
of powers preferences sketched above can be realized simultaneously.
The catch, of course, is that creating and maintaining this equilibrium
may not be possible—for reasons we take up more fully in Parts III and IV.
from John Kelly, Sec’y, U.S. Dep’t. of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S.
Customs & Border Prot., et al. (Feb. 20, 2017).
167 These normative priors are amply reflected in the literature surveyed in the remainder of this
Part. Cf. Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEGAL F. 57, 58 &
n.3 (“[T]he immigration law professoriate occupies a position at the extreme left in the national debate
over immigration.” (footnote omitted)).
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The more immediate point is that the first-best scenario consists of a set of
end-states that immigration exceptionalism may episodically support or
interfere with.
In this Part, we identify patterns and trends in the leading scholarly
works on exceptionalism, with due regard for some important nuance and
exceptions along the way. As a general matter, scholars tend to write about
exceptionalism pertaining to rights (Section II.A), federalism (Section
II.B), or separation of powers (Section II.C), as if developments in each
area can be siloed from the others.
A. Rights
Theorists and advocates have labored for decades to eradicate rights
exceptionalism from the Court’s jurisprudence. Below, we offer a loose
taxonomy of that concerted effort, which includes: (1) dislodging the
plenary power doctrine from the Court’s rights jurisprudence, (2)
dismantling the doctrine’s conventional rationales, (3) detouring around the
doctrine, (4) disenabling the doctrine, and (5) denying the doctrine’s
existence or significance in modern times.168 Though conceptually distinct,
each of these tacks angles toward the same preference: namely, robust
rights protection for noncitizens.
Dislodge. One line of attack sought to extricate the plenary power
doctrine from rights jurisprudence. Most notably, Professor Stephen
Legomsky explained that the Court first invoked the doctrine in the context
of federalism challenges to state laws.169 He argued that the Court tragically
erred by extending the rationale of these federalism precedents to foreclose
judicial review of constitutional rights challenges.170 On this account, the
idea of federal plenary power is not wrong as applied to questions of
federalism; it is just misplaced as applied to constitutional rights.171
Dismantle. A related line of attack sought to topple the plenary power
doctrine by debunking its supporting rationales. In the foundational
Chinese Exclusion Cases, discussed in Part I, the Court linked federal
immigration power to foreign affairs and the inherent right of sovereign
168 We present this taxonomy as one potential way of organizing the voluminous literature on rights
exceptionalism. While this categorization is meant to be helpful, nothing in our argument depends on
this particular grouping.
169 LEGOMSKY, supra note 39; see also Stephen H. Legomsky, Ten More Years of Plenary Power:
Immigration, Congress, and the Courts, 22 HASTINGS CONST. L.Q. 925 (1995) [hereinafter Legomsky,
Ten More Years] (reifying his earlier claim that the Court had unwittingly relied on federalism cases to
reach conclusions about individual constitutional rights).
170 See LEGOMSKY, supra note 39, at 180–86.
171 See id.
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nations.172 But as many thoughtful commentators have since argued, the
foreign affairs justification is overbroad. Much immigration policy, they
argue, is domestic and has only tangential bearing on the nation’s foreign
relations.173 Moreover, some have argued, the sovereignty rationale as
pertains to constitutional rights challenges was probably wrong to begin
with, and is certainly wrong by contemporary lights.174 In short, sovereignty
is not a reason why the Constitution should not apply.
Detour. Some scholars have also suggested end-runs around the
plenary power doctrine and its rights-depriving effects. Again, in
groundbreaking work, Legomsky argued that the Court might use
mainstream procedural due process standards to compensate for the
inability to advance substantive constitutional rights claims.175 Building on
the work of Legomsky and others, Professor Hiroshi Motomura has
championed non-frontal assaults on the plenary power doctrine by linking
the fortunes of citizens and noncitizens.176 Motomura has also argued that
preemption doctrine might serve immigrant interests without having to
directly invoke constitutional rights—for example, by incorporating an
equality norm into preemption analysis.177 Approaches like these rely on
oblique proxies to vindicate immigrant rights.
Disenable. Somewhat more counterintuitively, Motomura has also
suggested severing the plenary power doctrine’s mainstream life supports.
172 See Chae Chan Ping v. United States, 130 U.S. 581, 603–04 (1889).
173 Legomsky, supra note 1, at 262–63 (suggesting that “[a] better approach would be to reserve
the judicial deference for the special case in which the court concludes, after a realistic appraisal, that
applying the normal standards of review would interfere with the conduct of foreign policy”);
Aleinikoff, supra note 2, at 12 (“While foreign policy has provided a convenient excuse, it hardly seems
to capture the deep structure of our thinking about immigration and the Constitution.” (internal
quotation marks omitted)); Schuck, supra note 1, at 16–17 (observing that foreign affairs has very little
if any bearing on the many domestic contexts where the Court invoked the plenary power doctrine);
Matthew J. Lindsay, Disaggregating “Immigration Law,” 68 FLA. L. REV. 179, 182–84 (2016) (same);
Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L.J. 339, 340–41, 345–55 (2002)
(suggesting that the plenary power might fade as immigration law becomes decoupled from foreign
relations law). In a recent account, however, David Martin argues that the foreign affairs rationale is a
major reason why the plenary power doctrine endures today. See Martin, supra note 21, at 39–48.
174 See, e.g., LEGOMSKY, supra note 39, at 185 (“Problems with the sovereignty theory become
manifest when the rationales arguably supporting it are closely examined.”); Michael A. Scaperlanda,
Polishing the Tarnished Golden Door, 1993 WIS. L. REV. 965, 1028–29 (arguing that emergence of
modern human rights law renders classical international law’s emphasis on sovereignty obsolete).
175 Legomsky, supra note 1, at 298–305 (arguing that courts might apply greater procedural due
process analysis to immigration cases to “avoid[] the harshness of the plenary power doctrine”).
176 See Motomura, supra note 128, at 1728 (“[A]n unauthorized migrant may successfully assert
rights if recognizing those rights would protect a U.S. citizen or lawfully present noncitizen who serves
as a citizen proxy.”).
177 See id. at 1730; MOTOMURA, supra note 24, at 133–35. As discussed in Section II.B, this idea
has come into vogue in recent years, with wide-ranging support within the academy. See infra notes
207–16 and accompanying text (collecting citations).
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Expanding on the work of others, Motomura explained in seminal work
that the plenary power’s staying power was owed, in part, to the Court’s
practice of importing “phantom” mainstream constitutional norms into
statutory interpretation in immigration rights cases.178 These phantom
norms effectively enabled the plenary power doctrine to endure, inasmuch
as they relaxed some of that doctrine’s more extreme applications.179
Motomura acknowledged that the phantom norms had salutary short-term
effects for immigrant interests.180 But, taking the longer view, he also
suggested that isolating the plenary power doctrine from the phantom
norms might, in due time, cause the plenary power doctrine to suffocate
under its own weight.181
Deny. Meanwhile, others have questioned the significance of the
plenary power doctrine. Ultimately, this nothing-to-see-here approach
hoped to convince courts and commentators that immigration law need not
be exceptional as a descriptive matter, and therefore should not be treated
as such as a prescriptive matter. Professor Jack Chin, for example, has
argued that despite the Court’s homage to the doctrine, the Court would
have reached the same result in most cases using then-extant mainstream
legal standards.182 A similar tack is reflected in the amicus brief filed by
several scholars in the Rodriguez case pending before the Court,183 and in
commentators’ responses to President Trump’s recent immigration ban.184
178 Motomura, supra note 41, at 549 (“[M]any courts have relied on what I call phantom
constitutional norms, which are not indigenous to immigration law but come from mainstream public
law instead. The result has been to undermine the plenary power doctrine through statutory
interpretation.” (internal quotation marks omitted)).
179 Id.
180 Id.
181 Id. at 612 n.374 (recognizing that “[f]or a while,” abandoning phantom norms may result in
“aliens . . . los[ing] a few more immigration cases than before,” but anticipating “that this movement
will hasten the complete demise of the plenary power doctrine”).
182 Gabriel J. Chin, Is There a Plenary Power Doctrine? A Tentative Apology and Prediction for
Our Strange but Unexceptional Constitutional Immigration Law, 14 GEO. IMMIGR. L.J. 257, 281–82
(2000) (arguing that the plenary power doctrine arose at a time of general judicial deference and that
immigration law may not be as much of a constitutional outlier as scholars conventionally believe). But
cf. Kevin R. Johnson, Race and Immigration Law and Enforcement: A Response to “Is there a Plenary
Power Doctrine?,” 14 GEO. IMMIGR. L.J. 289, 291–96 (2000) (responding to Professor Chin and
arguing that de facto racial discrimination in immigration enforcement, and the disparate treatment of
noncitizens in removal proceedings, suggests a continued gap between immigration law and mainstream
constitutional law).
183 Brief of Professors of Constitutional, Immigration, and Administrative Law as Amici Curiae in
Support of Respondents at 3, Jennings v. Rodriguez, 136 S. Ct. 2489 (2016) (No. 15-1204). Their
argument supports the immigrants’ position that indefinite or prolonged detention without bond
hearings are unlawful. Id. Specifically, their brief argues that the federal government reads Shaughnessy
v. Mezei, 345 U.S. 206 (1953), too broadly. Id. In that Cold War era case, the Court upheld the
government’s indefinite detention of a noncitizen who was deemed inadmissible under the immigration
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
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As discussed in Section I.A, the plenary power doctrine has proven
remarkably resilient despite these academic assaults.185 That outcome is
relevant to this Article’s broader claims in two regards. First, decades of
scholarship have ably advanced many reasons to abrogate, relax, work
around, and compensate for the plenary power doctrine. Still, judicial buy-
in is required. How that happens, if at all, can impact other exceptionalism
strands, as we develop more fully in Parts III and IV. Second, the academic
refrain against rights exceptionalism provides contextual contrast to how
commentators engage questions of immigration exceptionalism for
federalism and separation of powers.
B. Federalism
Most immigration scholars tend to affirm or defend the plenary power
doctrine and its corollaries as they pertain to federalism.186 At least as
applied to certain restrictionist laws, commentators defend or accept three
strands of federalism exceptionalism: (1) the federal exclusivity principle,
(2) preemption via nonbinding executive enforcement policies, and (3)
Equal Pro-Emption (i.e., importing an equality norm into statutory
preemption analysis).
1. The Exclusivity Principle.—Most commentators not only defend
the exclusivity principle, but also support a rather robust version of it.187 To
date, however, this support targets subfederal restrictionist measures for
preemption (e.g., the policies in Arizona and Alabama), but not
integrationist measures (e.g., the policies in New York and California).188
Some scholars, for instance, have specifically invoked the plenary
power doctrine as a reason to preempt restrictionist state laws like
laws. Id. To minimize Mezei’s impact, amici in Jennings argue that Mezei was a product of then-extant
due process standards and is not the controlling precedent today. See id. at 25.
184 See, e.g., Adam Cox, Why a Muslim Ban Is Likely to Be Held Unconstitutional: The Myth of
Unconstrained Immigration Power, JUST SECURITY (Jan. 30, 2017, 10:21 AM), https://
www.justsecurity.org/36988/muslim-ban-held-unconstitutional-myth-unconstrained-immigration-
power/ [https://perma.cc/K5WR-WUSX].
185 Cf. Legomsky, Ten More Years, supra note 169, at 934 (lamenting that time was not kind to his
earlier predictions regarding the demise of the plenary power doctrine and that, more likely, “the lower
courts and the Supreme Court [will] allow the plenary power doctrine to wear away by attrition”).
186 This point has been made before. See Schuck, supra note 167, at 57–58 (“An interesting feature
of these critiques of the plenary power doctrine is that the critics seem to have no difficulty accepting its
corollary—the principle that federal authority over immigration preempts the states from playing any
independent role in the development and administration of immigration law and policy.”). Professor
Schuck suggests that “[t]his conjunction of positions, which might otherwise seem illogical or at least
awkward, is probably best explained by ideology and politics.” Id. at 58.
187 For dissenting views, see infra notes 193–98 and accompanying text.
188 See supra notes 90–98 and accompanying text (describing differences between restrictionist and
integrationist laws, and providing examples).
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619
Arizona’s flagship S.B. 1070.189 Other scholars have not overtly summoned
the plenary power doctrine, but nevertheless defend the idea of federal
exclusivity in immigration enforcement for a variety of immigration-
specific reasons. For example, Professor Michael Olivas argues that state
exercises of “general immigration functions are unconstitutional as a
function of exclusive federal preemptory powers.”190 And Professor Huyen
Pham maintains that “the immigration power is an exclusively federal
power that must be exercised uniformly.”191 Other notable scholars advance
similar views.192
Still, there are some important exceptions to this general trend.
Professor Peter Spiro, for example, argues that the rationale for federal
exclusivity melts away once immigration law is untethered from the faux
foreign policy rationale.193 For this and some additional reasons, Professors
Cristina Rodríguez, Clare Huntington, and Peter Schuck (writing
separately) have eschewed the idea of federal exclusivity on constitutional
and functional grounds.194
Here, it is important to appreciate that both sides of this particular
debate take immigrant interests into account, albeit to greater and lesser
189 See, e.g., Karla M. McKanders, Welcome to Hazleton! “Illegal” Immigrants Beware: Local
Immigration Ordinances and What the Federal Government Must Do About It, 39 LOY. U. CHI. L.J. 1,
26 (2007) (arguing that “because immigrants’ civil rights are implicated . . . the plenary powers doctrine
should be applied to broadly preclude municipal regulation”). For a description of the provisions of S.B.
1070 that were at issue in Arizona, see supra note 14.
190 Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice,
and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 27, 34.
191 Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local
Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965, 967 (2004).
192 See, e.g., Jennifer M. Chacón, The Transformation of Immigration Federalism, 21 WM. &
MARY BILL RTS. J. 577, 581–82 (2012) (criticizing the Arizona Court’s underenforcement of the
exclusivity principle); Margaret Hu, Reverse-Commandeering, 46 U.C. DAVIS L. REV. 535, 539–40
(2012) (arguing that state attempts to create strict immigration policy via “mirror-image” laws interfere
with federal power); Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187,
35 VA. J. INT’L L. 201, 215–16 (1994) (explaining why states cannot lawfully resort to immigration
“self-help”); Wishnie, supra note 112, at 500 (“Congress’s 1996 effort to devolve its federal
immigration power [to subfederal institutions] is constitutionally impermissible.”).
193 Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT’L L.
121, 165–67 (1994).
194 See Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH.
L. REV. 567, 571–72 (2008) (arguing that the federal exclusivity principle “has become a formal
doctrine without strong constitutional justification,” and urging a functional approach to immigration
federalism); Huntington, supra note 69, at 792 (arguing that “[t]he text and structure of the Constitution
allow for shared authority” and that “nothing in Supreme Court precedent clearly supports a claim of
structural preemption”); Schuck, supra note 167, at 64 (arguing “that the legitimate goals of federal
immigration policy might be better served by recognizing state authority in certain areas,” including, in
particular, “employment-based admissions, integration with state and local criminal justice systems, and
employer sanctions”).
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extents relative to other considerations. For example, Spiro’s well known
“steam-valve” theory suggests that federal exclusivity may, on balance,
inure to the detriment of immigrants.195 He argues that allowing limited
outlets for subfederal restrictionist fervor may dissipate political pressure to
enact more encompassing restrictionist laws at the federal level.196
Meanwhile, Rodríguez cautions that a robust exclusivity principle threatens
to preempt subfederal integrationist laws.197 And, as Huntington explains,
“there is no structural reason to believe that one level of government will
be more or less welcoming to non-citizens and therefore, on this basis, to
favor [federal] uniformity over [state and local] experimentalism.”198
To be clear, we draw attention to these sorts of mediating arguments
not because we think these scholars’ constitutional claims are
consequentially motivated. Rather, the point is that calls for normalization
that cut against the academic grain are almost invariably paired with some
explanation for why doing so could be advantageous for immigrant
interests, or at least not as dangerous as other immigration scholars
generally believe.
2. Executive Preemption via Nonbinding Policy.—In the wake of
recent congressional gridlock over comprehensive immigration reform, a
separate immigration federalism debate is brewing over whether executive
enforcement policies that do not have the force of law can nevertheless
preempt subfederal alienage laws. Most immigration scholars have taken
this mode of preemption for granted. That is, they start from the general
premise that federal law preempts state law, and then extend this idea to
include nonbinding executive policies.199
The few immigration scholars who have directly grappled with this
form of executive preemption generally support it, at least as applied to
restrictionist laws. Cox, for example, suggests that federal–state
enforcement redundancy is ill-suited for immigration, given the
Executive’s vast discretion in the field.200 Along similar lines, Motomura
195 See Peter J. Spiro, Learning to Live with Immigration Federalism, 29 CONN. L. REV. 1
627
(1997).
196 Id. at 1645.
197 Rodríguez, supra note 194, at 580 (noting that subfederal protectionist measures are “vulnerable
in the face of a strong theory of preemption”); see also Howard F. Chang, Public Benefits and Federal
Authorization for Alienage Discrimination by the States, 58 N.Y.U. ANN. SURV. AM. L. 357, 363–64
(2002) (“[W]e might just as plausibly view federal authorization of divergent state policies as creating
laboratories of generosity toward immigrants.” (emphasis removed)).
198 Huntington, supra note 69, at 831.
199 But cf. Rubenstein, supra note 124, at 985–86 (arguing that preemption via nonbinding
executive enforcement policies is a dangerous proposition that “should not be taken for granted—
perhaps especially by immigrant advocates”).
200 See Cox, supra note 29, at 56–59.
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621
argues that “law in action” is just as much a part of federal immigration law
as Congress’s written statutes, and thus should have corresponding
preemptive effect.201 Meanwhile, Professor Catherine Kim argues that
preemption via executive policies that forgo notice-and-comment
rulemaking may not be ideal, but is preferable to a regime without this
exceptionality.202
Still, there is at least one dissenting view.203 On formal grounds,
nonbinding enforcement policies are not “law,” much less are they “Law”
for purposes of the Supremacy Clause.204 Moreover, on functional grounds,
preemption via nonbinding executive action arguably makes it too easy for
a sufficiently motivated Executive to preempt state alternatives, and thus
unilaterally quell one of the few remaining structural checks against federal
immigration policy.205 Worth noting, however, is how this critique also has
immigrant interests in view. Preemption via nonbinding executive policies
could permit executive branch officials to preempt state integrationist laws
(as well as restrictionist laws) with equal facility—a point we return to in
Part IV.206
3. Equal Pro-Emption.—Recall that under the proposed Equal Pro-
Emption doctrine, courts would import an equality norm into immigration
preemption analysis. The idea for this is old.207 Its popularity today is
new.208
201 See, e.g., MOTOMURA, supra note 24, at 22, 124 (“The operation of immigration law in practice
strongly suggests that the exercise of federal executive discretion in enforcement supplies the real
content of federal immigration law for the purpose of deciding what is inconsistent with state and local
decisions.”).
202 See Kim, supra note 124, at 731.
203 That dissenting view has been advanced by one of this Article’s authors. See, e.g., Rubenstein,
supra note 120, at 283–95; Rubenstein, supra note 124, at 999–1004.
204 See Rubenstein, supra note 124, at 999–1004; U.S. CONST., art. VI, cl. 2 (delineating “Laws” as
having preemptive effect).
205 On this account, executive preemption via nonbinding policies may be worse, on balance, than
insisting on the Court’s mainstream force of law preemption requirement (which embeds procedural
resistance within the administrative apparatus), and/or having Congress decide whether to preempt
subfederal law (which embeds political and procedural resistance through the legislative process). See,
e.g., Rubenstein, supra note 29, at 139–51.
206 See infra Sections IV.B, IV.C; see also Rubenstein, supra note 29, at 89–90, 139–51 (warning
of danger to immigrant interest if preemption through executive guidance policies becomes established
doctrine).
207 See Note, State Burdens on Resident Aliens: A New Preemption Analysis, 89 YALE L.J. 940
(1980); David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?,
31 STAN. L. REV. 1069, 1070 (1979) (arguing that Supreme Court’s equal protection analysis is
unintelligible and that opinions actually reflect “an unarticulated theory of preemption” that should be
explicitly embraced).
208 See MOTOMURA, supra note 24, at 133–35; Chacón, supra note 192, at 606–14; Mary D. Fan,
Post-Racial Proxies: Resurgent State and Local Anti-“Alien” Laws and Unity-Rebuilding Frames for
Antidiscrimination Values, 32 CARDOZO L. REV. 905, 932–43 (2011); Guttentag, supra note 128; Kevin
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Academic support for this exceptional doctrine must be understood in
context. Most commonly, Equal Pro-Emption is offered as a partial reason
for why subfederal restrictionist (but not integrationist) laws should be
preempted. Motomura and Guttentag, for example, argue that incorporating
equality concerns is a principled way for reviewing courts to greet
subfederal restrictionist laws with greater skepticism.209 Restrictionist laws,
they argue, are likely to be motivated by discrimination in ways that
integrationist laws are not.210
Alternatively, Equal Pro-Emption may be understood as a
compensating adjustment for the Court’s rights jurisprudence. As
Motomura explains, the Court’s mainstream discriminatory purpose test for
facially neutral laws leaves many discriminatory enforcement actions
undetected or unremedied.211 Shifting the burden of proof to restrictionist
states to disprove discriminatory intent might close some of the gap
between the equality norm and the Court’s mainstream disparate purpose
test.212 Similarly, Professor Jennifer Chacón argues that importing an
equality norm into immigration preemption analysis could venerably
compensate for the Court’s lax application of Fourth Amendment
principles in immigration enforcement.213
Professor Mary Fan offers yet another reason to support, or at least to
understand, Equal Pro-Emption.214 As she explains, this doctrinal construct
not only eases the plaintiff’s burden of proving discriminatory intent, it also
eases the judicial burden of having to directly rule on antidiscrimination
R. Johnson, Immigration and Civil Rights: State and Local Efforts to Regulate Immigration, 46 GA. L.
REV. 609, 619 (2012); Motomura, supra note 128, at 1726; Olivas, supra note 190, at 28; Carrie L.
Rosenbaum, The Role of Equality Principles in Preemption Analysis of Sub-Federal Immigration Laws:
The California TRUST Act, 18 CHAP. L. REV. 481, 483, 523 (2015); Michael J. Wishnie, State and
Local Police Enforcement of Immigration Laws, 6 U. PA. J. CONST. L. 1084 (2004). And, for a variation
on this theme, see Jason A. Cade, Judging Immigration Equity: Deportation and Proportionality in the
Supreme Court, 50 U.C. DAVIS L. REV. (forthcoming 2017) (suggesting a “proportionality norm” as an
alternative or at least additional factor motivating the Court’s preemption analysis in Arizona).
209 Cf. MOTOMURA, IMMIGRATION, supra note 24, at 134; Lucas Guttentag, Immigration
Preemption and the Limits of State Power: Reflections on Arizona v. United States, 9 STAN. J. C.R. &
C.L. 1 (2013).
210 MOTOMURA, IMMIGRATION, supra note 24, at 134; Guttentag, supra note 209, at 2 & n.4
(2013).
211 See MOTOMURA, IMMIGRATION, supra note 24, at 135.
212 See id.; see also Washington v. Davis, 426 U.S. 229, 238–39 (1976) (requiring plaintiff to
demonstrate a discriminatory purpose, not merely a discriminatory impact, when challenging facially
neutral laws under the Equal Protection Clause); Reva B. Siegel, Equality Divided, 127 HARV. L. REV.
1, 16–17 (2013) (describing the development of this equal protection requirement).
213 See Chacón, supra note 192, at 613.
214 Fan, supra note 208.
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623
grounds.215 Moreover, inasmuch as Equal Pro-Emption is grounded in an
antidiscrimination norm, it is arguably preferable to alternative preemption
frames (such as the exclusivity principle, and mainstream preemption
doctrines), which are formally agnostic to equality principles.216
C. Separation of Powers
The academic reception for special separation of powers standards in
immigration law is also mixed, at least as refracted through the debate over
the Obama Administration’s DAPA and Deferred Action for Childhood
Arrivals (DACA) programs. Many immigration professors defend the
legality of these programs,217 but it is far less clear how much of their legal
support for the programs depends on exceptionalism, if at all.218
Just as we noted in Section I.C that separation of powers
exceptionality is hard to pin down descriptively, here we suggest three
reasons why it is hard to pin down prescriptively. First, the Court has
provided only sporadic and somewhat fuzzy parameters on what the
President’s duty to “faithfully execute the law” entails.219 Without a clear
baseline set by the Court against which to compare, judgments about what
qualifies as exceptional executive action defy precision.
Second, because the INA delegates so much authority, the Executive
Branch might not be acting exceptionally even when it acts without express
congressional endorsement. Under mainstream separation of powers
precedent, for instance, the court might employ the familiar three-tier
framework from Youngstown to assess the constitutionality of executive
action.220 Even then, however, it is not clear where to situate DAPA/DACA
215 Id. at 908–09 (noting that preemption frames can often be more “palatable” than
antidiscrimination frames in judicial review of subfederal restrictionist laws).
216 Id. at 909–10.
217 See Open Letter from Immigration Law Professors 6 (Nov. 25, 2014),
http://pennstatelaw.psu.edu/sites/default/files/documents/pdfs/Immigrants/executive-action-law-prof-
letter [https://perma.cc/N5QU-2GWG] (letter of support signed by approximately one hundred law
professors and clinicians); Letter from Immigration Law Professors, to Barack Obama, President, White
House 4 (May 28, 2012), http://www.nilc.org/document.htmlid=754 [https://perma.cc/8ZVY-52E8]
(same).
218 Indeed, the Office of Legal Counsel opinion providing legal cover for DAPA maintains that
Congress provided sufficient authority for these exercises of executive authority in existing statutes.
The Opinion, supra note 159, at 4. But see Josh Blackman, The Constitutionality of DAPA Part II:
Faithfully Executing the Law, 19 TEX. REV. L. & POL. 213, 216 (2015) (critiquing OLC’s reasoning);
Cox & Rodríguez, Redux, supra note 158, at 146–57 (critiquing OLC’s reasoning but defending DAPA
on other grounds); Zachary Price, supra note 159 (arguing that DACA and DAPA “go beyond either
conventional agency priority-setting or ad hoc deferred action by deeming broad categories of
immigrants presumptively eligible for a prospective promise of non-enforcement”).
219 See supra notes 144–47 and accompanying text.
220 See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J.,
concurring). The framework divides exercises of presidential power into three categories: First, “[w]hen
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within Youngstown’s three tiers, because it is not clear whether or how
immigration’s special qualities should factor in that analysis.221 Moreover,
if DAPA/DACA is not an act of executive lawmaking (and conceived,
instead, only as executive prosecutorial discretion), then Youngstown may
not be the appropriate constitutional standard.
Third, commentators shying away from explicitly invoking
exceptionalism tropes may purposefully blur the line between
exceptionalism and normalization. The potential dangers inhering in an
exceptional executive immigration power may be reason enough to avoid
relying on (or reifying) that power. Quite obviously, executive power can
be abused in ways that make it more concerning than other forms of
exceptionalism. Thus, prudence might have counseled for defending
President Obama’s deferred action programs on mainstream grounds (if
possible), and exceptionalism grounds (if at all) only as a backup.
The brouhaha surrounding DAPA and DACA bring these potential
hedges to light. As noted, most immigration scholars defend these
programs without relying on exceptionalism per se.222 Still, we think it’s
fair to say that some scholars may be turning to one or more of
immigration’s special features to argue for special (even if not unique or
exceptional) legal dispensation.
the President acts pursuant to an express or implied authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id.
at 635 (footnote omitted). Second, “in absence of either a congressional grant or denial of authority, . . .
there is a zone of twilight in which he and Congress may have concurrent authority.” Id. at 637. Finally,
“[w]hen the President takes measures incompatible with the expressed or implied will of Congress, . . .
he can rely only upon his own constitutional powers minus any constitutional powers of Congress over
the matter.” Id. To succeed in this third category, the President’s asserted power must be both
“exclusive” and “conclusive” on the issue. Id. at 637–38.
221 For instance, Professor Lauren Gilbert argues that DACA, and presumably DAPA too, “falls
within Justice Jackson’s twilight zone, which allows the President to act in cases of ‘congressional
inertia, indifference, or quiescence,’ particularly where Congress and the Executive enjoy concurrent
authority.” Lauren Gilbert, Obama’s Ruby Slippers: Enforcement Discretion in the Absence of
Immigration Reform, 116 W. VA. L. REV. 255, 279 (2013) (quoting Youngstown, 343 U.S. at
637
(Jackson, J., concurring)). Meanwhile, Professor Peter Margulies employs mainstream norms to argue
that DAPA falls into Youngstown’s third tier and is unconstitutional. Peter Margulies, The Boundaries
of Executive Discretion: Deferred Action, Unlawful Present, and Immigration Law, 64 AM. U. L. REV.
1183, 1253–54 (2015). Professor Josh Blackman has gone even further, to argue that DAPA
“descend[s] . . . even below the lowest ebb.” Josh Blackman, supra note 218, at 267 (internal quotation
marks omitted). For an intriguing approach to Youngstown, which factors in federalism, see Bianca
Figueroa-Santana, Note, Divided We Stand: Constitutionalizing Executive Immigration Reform Through
Subfederal Regulation, 115 COLUM. L. REV. 2219, 2257 (2015) (“[When] evaluating the
constitutionality of executive action within the traditional Youngstown framework, . . . subfederal power
and prerogative function as a fourth ‘zone,’ capable of supplementing or undermining the legitimacy of
unilateral presidential policy.”).
222 See supra notes 217, 221.
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625
For instance, Cox and Rodríguez (writing together), as well as
Motomura, have argued that the conventional principal–agent model
between Congress and the Executive is ill-equipped for immigration.223
Instead, their dynamic lawmaking models place a premium on historical
context, and, more generally, an immigration regime characterized by a
significant mismatch between the law on the books and the law in action.
Broader still, one might also maintain—as they and others do—that
programs like DAPA and DACA have always been within the purview of
the Executive Branch. As policy guidance, the Executive is best poised to
make such decisions and routinely does. On this telling, DAPA and DACA
are unexceptional exercises of presidential authority; they are distinguished
only by the transparency and formality attending these programs, not
because the President plays by different rules in immigration. Although
some scholars may engage this defense agnostic of its relationship to
broader immigration law implications, for others like Cox and Rodríguez,
this line of argumentation may be appealing precisely because it may help
avoid relying on claims of immigration exceptionalism.
Meanwhile, Professor Shoba Sivaprasad Wadhia and others
emphasize a long tradition of categorical nonenforcement programs and
congressional acquiescence thereof.224 Again, this line of argument does not
invoke exceptionalism per se. And we mean to leave open whether these
arguments sound in exceptionalism at all.225 But, even if not intended,
heavy reliance on past immigration practice may be perceived as having
exceptionalism undertones. After all, those earlier practices, themselves,
223 MOTOMURA, supra note 24, at 21–22, 31, 124 (“The operation of immigration law in practice
strongly suggests that the exercise of federal executive discretion in enforcement supplies the real
content of federal immigration law for the purpose of deciding what is inconsistent with state and local
decisions.”); Cox & Rodríguez, Redux, supra note 158, at 112 (arguing that a dynamic lawmaking
model for immigration is more descriptively accurate and normatively desirable); see also Jason A.
Cade, Enforcing Immigration Equity, 84 FORDHAM L. REV. 661, 694–719 (2015) (defending
DACA/DAPA on the ground that the Executive must take the lead in the equitable enforcement of
immigration law, especially in the wake of congressional gridlock on comprehensive immigration
reform).
224 SHOBA SIVAPRASAD WADHIA, BEYOND DEPORTATION: THE ROLE OF PROSECUTORIAL
DISCRETION IN IMMIGRATION CASES ch. 4 (2015); Open Letter from Shoba Sivaprasad Wadhia et al.
(Mar. 13, 2015), www.pennstatelaw.psu.edu/lawprofltrlawsuit [https://perma.cc/Y9EE-HNWM]; see
also Executive Grants of Temporary Immigration Relief, 1956-Present, AM. IMMIGR. COUNCIL (Oct.
2014), https://www.americanimmigrationcouncil.org/research/executive-grants-temporary-immigration-
relief-1956-present [https://perma.cc/XMS4-M8EU]; Drew Desilver, Executive Actions on Immigration
Have a Long History, PEW RESEARCH CTR. (Nov. 21, 2014), http://www.pewresearch.org/fact-
tank/2014/11/21/executive-actions-on-immigration-have-long-history/ [https://perma.cc/R2VT-BT3Y].
225 See Shoba Sivaprasad Wadhia, Employment Authorization and Prosecutorial Discretion: The
Case for Immigration Unexceptionalism, YALE J. ON REG.: NOTICE & COMMENT BLOG (Feb. 10, 2016),
http://yalejreg.com/nc/employment-authorization-and-prosecutorial-discretion-the-case-for-
immigration-unexceptionalism-by-s/ [https://perma.cc/9FUQ-UZ5K].
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may have been expressions of exceptional immigration power.226 In any
event, we wish only to flag what we think the foregoing defenses of DAPA
and DACA share in common: reliance on immigration’s distinct
demographics, history, or the INA’s statutory structure as reasons for a
flexible view of executive power, relaxed judicial checks on that authority,
or both.
To be sure, not all agree that large-scale deferred action programs are
constitutional. Tellingly, however, those dissenting views are more clearly
applying mainstream separation of powers and administrative law.227 As far
are we are aware, no one has argued that DAPA is unconstitutional under
an exceptionalism frame. Indeed, if the Executive does hold exceptional
immigration power, then it is not at all clear if, or on what grounds, the
Court would ever deem the constitutional line crossed.
* * *
In sum, immigration exceptionalism is more than just a doctrinal
phenomenon; it has prescriptive bents too.228 For decades, commentators
have labored to mitigate the injustices wrought by rights exceptionalism.
By comparison, however, academic reception for structural exceptionalism
is mixed.
This equivocation might signal differences in judgment about how
specific strands of exceptionalism are likely to translate on the ground.
Rights exceptionalism is almost invariably bad from the vantage of
immigrant interests. Put otherwise, those interests seemingly have nothing
to lose, and much to gain, from a normalized rights jurisprudence. By
contrast, separation of powers and federalism doctrines allocate power, but
cannot control how that exceptional power is used (or abused) across time
and contexts. Thus, inasmuch as scholars and advocates are writing with an
eye toward vindicating immigrant interests, there is arguably more reason
226 There is another strand of DACA/DAPA defenses that focuses on the exercise of prosecutorial
discretion in all branches of law enforcement. This tack, of course, attempts to normalize the exercise of
enforcement relief in the immigration context. See, e.g., David A. Martin, A Defense of Immigration-
Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J.
ONLINE 167, 184 (2012) (arguing that the lawsuit filed by ICE field agents challenging DACA—Crane
v. Napolitano, 920 F. Supp. 2d 724 (N.D. Tex. 2013)—must be rejected and remarking that “[i]n any
other law enforcement environment, this discipline [of a ranking enforcement officer creating
enforcement priorities that bind lower level officers] would be unremarkable”).
227 See Robert Delahunty & John Yoo, Dream On: The Obama Administration’s Nonenforcement
of Immigration Laws, the DREAM Act, and the Take Care Clause, 71 TEX. L. REV. 781, 784 (2013)
(arguing that DACA is unconstitutional); Price, supra note 159 (same); Blackman, supra note 218, at
218–19 (same). See generally Margulies, supra note 221, at 1252–55 (rejecting the notion of an
exceptional executive power in immigration, on constitutional and normative grounds).
228 Cf. Cox, supra note 29, at 32 (writing about academic reactions to Arizona and noting that
“while [exceptionalism] . . . can provide a label for a phenomenon, it does not itself explain it”).
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627
to equivocate when it comes to federalism and separation of powers
exceptionality. Doubling down on special structural doctrines, before all
the political cards are dealt, is a risky gambit.
III. EXCEPTIONALISM AS MEANS TO ENDS
If we are correct that immigrant advocates and scholars often invoke
exceptionalism as a means to particularized ends, a pressing follow-up
question surfaces: to what extent can doctrinal exceptionalism (or
normalization) deliver those ends? That question has been almost entirely
neglected to date. And the scant attention it has received is generally
cabined to a particular constitutional dimension.229
This Part explains why exceptionalism is a fraught means to ends.
Section III.A revisits the rationales behind immigration exceptionalism. As
we explain, the most commonly invoked supporting tropes repeat
themselves across doctrines and constitutional dimensions. Section III.B
emphasizes why that matters. Exceptionalism’s supporting rationales tend
to be doctrinally agnostic. Thus, gestational moves toward exceptionalism
or normalization in one doctrinal context can push or pull on other
doctrines, sometimes in crosscutting and unintended ways. In Section III.C,
we inject an additional complication inherent in structural power
allocations—namely, political uncertainty.
Appreciation for these doctrinal and political dynamics is crucial.
Descriptively, our account may help to explain why exceptionalism
endures. Immigrant advocates, government lawyers, and jurists are quite
possibly caught in a feedback loop. Each may be invoking exceptionalism’s
supporting tropes for different reasons and for different ends. But the
emergent result is the same: exceptionalism lingers.
Prescriptively, this reconceptualization may profitably inform how to
engage questions of immigration exceptionalism (and normalization)
moving forward. As yet, there is no organizing theory for when, why, or
how to split the atom of immigration exceptionalism. Moreover, even
assuming that advocates and theorists can meet the conceptual challenge of
explaining why doctrines should be treated discretely, it may be too much
to expect the Court to seize upon an exceptionalism-splitting theory that
delivers just enough, but not too much, exceptionalism and in all the right
places.
The political x-factor only compounds the complexity. Rights,
federalism, and separation of powers doctrines set outer boundaries on how
229 See supra Section II.B (canvassing debate over immigration federalism doctrines); cf.
Margulies, supra note 221, at 1215–16 (cautioning how arguments in favor of excessive executive
authority might be spun under new administrations).
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government actors can and cannot exercise power, but create no affirmative
duty on government actors to exercise power in any particular way. It is in
that space, between politics and the outmost limits of law, where the
consequences of exceptionalism can become terribly unstable and
unpredictable.
A. Cross-Currency of Exceptionalism Rationales
We start with a simple but central insight that often goes overlooked:
immigration exceptionalism needs reasons. After all, the Court does not,
and will not, depart from mainstream legal norms without explanation. Nor
should we expect the Court to abandon or limit long-standing
exceptionalism doctrines without disclosing why. In short, reasons matter.
Moreover, the reasons conventionally offered in support and derogation of
exceptional immigration doctrines link across constitutional settings. To
illustrate, we focus below on three commonly invoked exceptionalism
rationales: foreign affairs, institutional competence, and sovereignty.
In the rights realm, for instance, the Court invokes foreign affairs as
one of several reasons for judicial deference to the federal political
branches.230 Meanwhile, in federalism cases, the Court invokes the foreign
affairs trope to justify robust preemption of state and local restrictionist
laws.231 And, at other times, the Court nods to the President’s role in
foreign affairs to legitimate broad executive discretion,232 if not also
inherent immigration authority.233
Likewise, the institutional-competence rationale cuts across doctrinal
contexts. It surfaces in constitutional rights cases as a primary reason for
judicial deference to the federal political branches.234 It surfaces in
federalism as a primary reason why the federal government, rather than
230 See, e.g., Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889) (abjuring stringent judicial
review of the Chinese Exclusion Act and explaining that “[i]f the government of the country of which
the foreigners excluded are subjects is dissatisfied with this action it can make complaint to the
executive head of our government”).
231 See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2498 (2012) (explaining that the federal
government’s authority over immigration “rests, in part, on . . . its inherent power as sovereign to
control and conduct relations with foreign nations” (citation omitted)); Hines v. Davidowitz, 312 U.S.
52, 62–66 (1941) (noting foreign affairs implications of immigration regulation); Chy Lung v. Freeman,
92 U.S. 275, 279–80 (1875) (invoking foreign affairs as a reason for the exclusivity principle).
232 See Arizona, 132 S. Ct. at 2499 (“The dynamic nature of relations with other countries requires
the Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign
policy with respect to these and other realities.”).
233 See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (suggesting that the
Executive possesses inherent power to regulate immigration as part of a broader foreign affairs power
vested in the Executive).
234 See, e.g., Chae, 130 U.S. at 602 (“The question whether our government is justified in
disregarding its engagements with another nation is not one for the determination of the courts.”).
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629
states, should have exclusive control over the admission and expulsion of
immigrants.235 And it surfaces in separation of powers as a reason for
judicial solicitude to the Executive’s enforcement decisions.236
The sovereignty rationale threads a similar pattern. In the Chinese
Exclusion Cases, for example, the Court infamously invoked national
sovereignty as one basis for the federal government’s plenary power over
immigration, which the Court felt ill-equipped to second guess.237 The
sovereignty rationale has jurisprudential links to federalism too, with
respect to preemption.238 Moreover, the recent Texas litigation suggests
how sovereignty links to separation of powers. Throughout that litigation,
the federal government cautioned that, if the Court affords states special
solicitude to challenge the federal Executive’s policies, it would invite
endless litigation anytime a state disagreed with federal policy, thus
distorting the relationship between federal and state sovereignty.239 But, in
retort, Texas cautioned that if states do not have standing to challenge
DAPA, then nobody might, thus leaving important separation of powers
questions unchecked by courts.240
235 See, e.g., Arizona, 132 S. Ct. at 2498–500 (detailing the complex involvement of several federal
departments and agencies in immigration policy, and stating that “[i]t is fundamental that foreign
countries concerned about the status, safety, and security of their nationals . . . must be able to confer
and communicate . . . with one national sovereign, not the 50 separate [s]tates.”).
236 See, e.g., Knauff, 338 U.S. at 543 (“[T]he decision to admit or to exclude an alien may be
lawfully placed with the President. . . . [I]t is not within the province of any court, . . . to review the
determination of the political branch of the Government to exclude a given alien.”); The Opinion, supra
note 159, at 4 (defending legality of President Obama’s DAPA program by stating that “[t]he principles
of enforcement discretion . . . apply with particular force in the context of immigration”); see also
Arizona, 132 S. Ct. at 2499 (“The dynamic nature of relations with other countries requires the
Executive Branch to ensure that enforcement policies are consistent with this Nation’s foreign policy
with respect to these and other realities.”).
237 Chae, 130 U.S. at 609 (linking “[t]he power of exclusion of foreigners” to the “sovereignty
belonging to the government of the United States”); see also Kerry Abrams, Plenary Power
Preemption, 99 VA. L. REV. 601, 617–18 (2013) (observing that “plenary power and structural
immigration preemption are distinct concepts,” but that “early cases articulating the two doctrines drew
on the same logic”).
238 See supra notes 83–85, 174 and accompanying text.
239 Brief for the Petitioners at 31, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674) (“In
the immigration context alone, the court of appeals’ theory would give States virtually unfettered ability
to conscript courts into entertaining their complaints about federal policies.”).
240 See Brief for the State Respondents at 35–36, Texas, 136 S. Ct. 2271 (No. 15-674) (“It is
aggressive enough to insist that States—which possess the dignity of sovereignty—are powerless to
challenge DAPA’s legality. But defendants go further. At several points, they make clear that they
believe nobody can challenge DAPA.”); see also David S. Rubenstein & Pratheepan Gulasekaram,
United States v. Texas: Ex Ante or Ex Post Judicial Review?, YALE J. ON REG.: NOTICE & COMMENT
BLOG (June 9, 2016), http://yalejreg.com/nc/united-states-v-texas-ex-ante-or-ex-post-judicial-review-
by-david-s-rubenstein-pratheepan-gulasekara/ [https://perma.cc/7C3P-Y4T5] (discussing an alternative
route to judicial review, whereby states might take oppositional action—as in Arizona, for example—
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To be clear, we are not concerned here with whether the foregoing
rationales are good ones in any context, much less which contexts. Our
point is more foundational: the conventional reasons for immigration
exceptionalism proffered in the Court’s doctrine, academic commentary,
and litigation briefs, are not easily cabined to a particular doctrine or
constitutional dimension. Rather, the reasons form a network of
exceptionalism rationales, plugged into all three constitutional dimensions.
B. Doctrinal Spillovers
We now turn to the implications of exceptionalism’s common-root
system. Foremost, doctrinal moves and prescriptive arguments in one
doctrinal setting can have lateral effects on others. We call this
phenomenon a “doctrinal spillover.” As illustrated below, the outcomes of
spillovers can be for better or worse (depending on perspective), and can
occur intra-dimensionally (e.g., between two federalism doctrines) and
inter-dimensionally (e.g., across federalism, separation of powers, and
rights doctrines).
The plenary power doctrine, itself, is a remarkable example of an
inter-dimensional spillover. Recall that the Court’s application of this
doctrine in rights cases drew inspiration from prior immigration federalism
cases.241 In short, the Court’s rationale for uniformity in national
immigration policy vis-à-vis the states (in federalism cases) exerted a
shadowing influence on the Court’s role vis-à-vis federal political branches
(in rights cases). Only with the benefit of hindsight did it become apparent
how foundational federalism victories for immigrants—which struck down
restrictionist state laws—became the fount for rights-depriving federal laws
shielded by the plenary power doctrine.
But, spinning that story further, it was also this same exceptional
deference to the federal political branches that proved useful to immigrants
in the Arizona litigation. There, the Court primed its opinion striking down
much of Arizona’s S.B. 1070 by citing foundational plenary power rights
cases and reaffirming the federal government’s broad immigration
authority relative to the states’.242
Moreover, Arizona revealed a further connection between separation
of powers and federalism exceptionalism. Recall that the Court struck
down some of the state provisions based on a putative conflict with the
and raise objections to executive enforcement policies in the posture of a defendant, thus avoiding the
need for the state to establish standing).
241 See supra notes 83–85, 174 and accompanying text.
242 See Arizona v. United States, 132 S. Ct. 2492, 2498–99 (2012); see also Abrams, supra note
237 (arguing that the Court borrowed plenary power principles from foundational immigration law
cases when conducting conflict and field preemption analysis).
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631
Executive’s (rather than Congress’s) immigration enforcement policies.243
Essentially, the Court treated the federal government as an undifferentiated
whole for purposes of its federalism analysis.
By doing so, the Court blurred past latent separation of powers issues
concerning the lawmaking relationship between Congress and the
Executive, which later came to a head in United States v. Texas.244 There,
the constitutional question was whether DAPA violates the Take Care
Clause.245 Yet the government’s petition for certiorari began by announcing
that “[t]he authority to control immigration . . . is vested solely in the
Federal government,” without differentiating between Congress and the
Executive.246 Moreover, the government took that quotation from Truax v.
Raich, an immigration federalism and rights case. Then, only a few
keystrokes later, the government asserted that “[a] principal feature of the
removal system is the broad discretion exercised by immigration
officials.”247 This quotation, however, was drawn from Arizona, which is
ostensibly a federalism (preemption) case.
These crossover arguments and outcomes pop up repeatedly, and quite
often with no appreciation or fanfare. Here we have shone a spotlight on
this phenomenon; later parts of the discussion will suggest what this
phenomenon entails for immigration theory and advocacy. Although
predicting specific spillovers can be tough, and controlling them even
tougher, the first step is to appreciate that they sometimes happen.248
243 See Arizona, 132 S. Ct. at 2506 (explaining that the state law “could be exercised without any
input from the [Executive] about whether an arrest is warranted in a particular case,” thus “allow[ing]
the State to achieve its own immigration policy”); cf. id. at 2521 (Scalia, J., concurring in part and
dissenting in part) (“[T]o say, as the Court does, that Arizona contradicts federal law by enforcing
applications of the Immigration Act that the President declines to enforce boggles the mind.” (emphasis
removed)). Of course, one might conceive of congressional intent broadly, in a manner that includes
funding and appropriations inherently linked to interpreting the removal standards. On the other hand,
however, Congress’s lack of federal funding does not, of itself, necessarily signal an intent to forbid
states from using their own funds toward immigration enforcement. Cf. Rubenstein, supra note 29, at
132–33.
244 See supra notes 160–66 and accompanying text (discussing separation of powers issues raised
by Texas litigation). See generally Rubenstein, supra note 124 (teasing out the separation of powers
issues embedded within recent immigration federalism debates).
245 See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court,
136 S. Ct. 2271 (2016) (mem.) (per curiam).
246 See Brief of the United States on Petition for Writ of Certiorari at 2, United States v. Texas,
136 S. Ct. 2271 (No. 15-674) (quoting Truax v. Raich, 239 U.S. 33, 42 (1915)) (internal quotation
marks omitted).
247 Id. at 3 (quoting Arizona, 132 S. Ct. at 2499).
248 To be clear, we do not mean to suggest that spillovers always happen. Sometimes the Court
does seem to cabin particular rulings to particular contexts. In INS v. Chadha, for example, the Court
eschewed the plenary power doctrine in a separation of powers context. 462 U.S. 919, 940–44 (1983).
Disappointing expectations, however, the Court continues to apply the plenary power doctrine in rights
and federalism cases. See supra Part II. The absence of any cohering theory for why spillovers
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These spillovers owe to exceptionalism’s interlocking rationales. As
importantly, they are set in motion by jurists, commentators, and advocates
who tap into exceptionalism’s network of supporting rationales. Whether
strategically, unwittingly, or otherwise, “constitutional borrowing”249 of
exceptionalism’s rationales and tropes from one area of constitutional law
into another has at least two potential effects. First, it can serve to reify the
borrowed concept.250 Second, by bridging otherwise discreet doctrines,
borrowing can deliver more coherence to the law.251 In Parts IV and V, we
revisit these potential implications as they pertain to the doctrines of
immigration exceptionalism.
C. Exceptionalism’s Political Space
The political x-factor is another complicating variable. The capacity of
judicial doctrine to deliver particular societal outcomes is limited. Courts
can set outer boundaries on political action, but cannot dictate the choices
within that space. As a result, what may at first appear as a legal “solution”
to a problem may only be a partial remedy, or none at all, depending on the
political will and policy choices still available to government actors
operating within an exceptional regime.
For instance, the plenary power doctrine is neither a command nor a
limit on federal action. It simply allows the federal political branches to use
their exceptional powers in ways that are mostly immune from judicial
control.252 Likewise, in the first-best scenario for immigrant interests, the
enactment of integrationist subfederal laws and executive nonenforcement
policies are politically contingent. Assuming arguendo that these
immigrant-friendly outcomes are legally permissible, federal and state
officials still must act to operationalize these particular ends.
Indeed, even when the Court forbids certain government action (e.g.,
federal commandeering or discrimination), there is no guarantee that
desired policy outcomes will result. In some instances, exceptional
substitutes to the proscribed government action may be available through
other legitimate means. Insofar as immigration exceptionalism expands the
sometimes but not always happen is partly what makes immigration exceptionalism chancy from an
advocacy perspective. We return to this puzzle in Parts IV and V.
249 Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 MICH. L. REV. 459, 461–62
(2010). Professors Nelson Tebbe and Robert Tsai describe the phenomenon of “constitutional
borrowing” as “the practice of importing doctrines, rationales, tropes, or other legal elements from one
area of constitutional law into another for persuasive ends.” Id.
250 See id. at 493–94.
251 See id.
252 See supra Section I.A.
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range of political choice, it also has the capacity to invite, if not also to
justify, these substitutes.
Of course, political contingency is not unique to immigration; the gap
between doctrine and politics is an indelible feature of society. Our
contributing claim, however, is that exceptionalism discourse can loosen
the law’s grip on politics even further. Against a backdrop of hyper-
political polarization, this slack must be taken seriously. After all, by its
very nature, political polarization can push immigration policy to the
extremes.253 And, it is at those extremes where immigration exceptionalism
can make all the difference, for better and worse.
An historic example that captures this dynamic is the Haitian
immigrant saga that unfolded in the 1970s and 1980s.254 Immigrant
advocates persuaded courts, under the Due Process Clause, to require
additional procedures for processing Haitian applications for admission.255
The expected outcome was that processing of Haitians would continue but
with greater procedural safeguards that might result in better government
decisions and fewer removals. That occurred to some extent. But instead of
wholly capitulating, the Reagan Administration moved to a policy of
interdicting Haitians on the high seas—outside the reach of the Due
Process Clause and the courts’ rulings. The Executive’s extraordinary
immigration power supported, if not also legitimized, this result.256
To be clear, the lesson from the Haitian interdiction saga, and others
like it, is not that advocates should have remained sidelined in the face of
the government’s deficient procedures. Advocates performed not only
reasonably but also admirably. Moreover, despite the government’s change
253 See GULASKEKARAM & RAMAKRISHNAN, supra note 31, at ch. 4 (cataloging examples of how
political polarization has influenced federal and subfederal immigration policy).
254 See Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1029–32 (5th Cir. 1982) (describing the INS
“Haitian Program” that attempted to streamline and expedite removal of Haitians and denied them the
same procedures that applied to other groups); David E. Ralph, Haitian Interdiction on the High Seas:
The Continuing Saga of the Rights of Aliens Outside United States Territory, 17 MD. J. INT’L L. &
TRADE 227, 232–33 (1993) (describing the history of Haitian migration to the United States during the
repressive regimes in Haiti).
255 See Augustin v. Sava, 735 F.2d 32, 37–38 (2d Cir. 1984) (holding that inadequate INS
translation services in asylum hearings violated procedural rights); Louis v. Nelson, 544 F. Supp. 973,
997 (S.D. Fla. 1982) (“Plaintiffs may not be deprived of their liberty without due process of law and
cannot be denied parole solely because of their race [and] national origin[, or both].”), dismissed in
part, rev’d in part, remanded with instructions sub nom., Jean v. Nelson, 727 F.2d 957, 984 (11th Cir.
1984) (holding that “[e]xcludable aliens cannot challenge the decisions of executive officials with
regard to their applications for admission, asylum, or parole on the basis of the rights guaranteed by the
United States Constitution” but that “[t]hey do have rights . . . to whatever process Congress—and
through its regulations and established policies, the Executive branch—have extended them”), remand
aff’d, 472 U.S. 846, 857 (1985).
256 See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187–88 (1993) (upholding the Executive’s
interdiction policy).
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in enforcement tactics, the litigation and judicial result may have
established important beachheads for an incremental project of advancing
immigrants’ dignity and rights in the long term. The federal Executive’s
domestic practices were disciplined, and perhaps it was forced into a more
difficult, and less effective, type of enforcement.
Still, a disquieting lesson remains. Immediate judicial gains do not
necessarily produce linear outcomes, as they otherwise might in regulatory
fields where one can rely on a steady state of normalized doctrine
applicable to all actors in all situations. In immigration law, judicial
victories can lead to political responses at the same or different levels of
government, which can be difficult to predict ex ante.
* * *
In sum, immigration exceptionalism—as a means to any end—is a
contextually alluring but highly contingent tactic. The possibility of
doctrinal spillovers is a complication that disaggregated treatments of
immigration exceptionalism either miss or have no way to account for.
Meanwhile, the uncertainties of political action, inaction, and reaction, are
often discounted in ways that warrant further attention.
When multiple ends are conjoined, as the first-best scenario
contemplates, the tensions come into sharper image. Again, that scenario
contemplates a set of normative preferences along all three constitutional
dimensions, including: (1) that immigrants have robust rights protection;
(2) that subfederal integrationist laws flourish while their restrictionist foils
abate; and (3) that the federal Executive has power to ease Congress’s
deportation laws.
To be sure, some admixture of political action and mainstream
doctrines might deliver the first-best scenario for immigrant interests. Still,
as a practical matter, politics and mainstream norms will likely come up
short. This is not just our skepticism. Rather, this skepticism surfaces,
inchoately, when scholars and advocates implore the Court to shed
exceptionalism in rights cases, while gesturing to (if not insisting on)
special institutional arrangements for federalism and separation of powers.
Emphatically, our suggestion that scholars and advocates may be
invoking immigration exceptionalism as a mean to an end is not a critique.
After all, immigration is sometimes exceptional. There is no reason why it
cannot, or should not, be exceptional in ways that inure to the benefit of
noncitizens. Missing from the literature, however, is an organizing
metatheory for how to sort exceptional and mainstream doctrines within
and across constitutional dimensions, and to explain why immigration
should be exceptional for some purposes but not for others. The absence of
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that coordinating theory poses far greater problems for advocates, theorists,
and jurists than has been recognized to date.
IV. AN EXCEPTIONALISM “TRILEMMA”
Building on the foregoing, this Part showcases how immigration
exceptionalism almost certainly requires normative tradeoffs within the
first-best scenario.257 Although the collateral effects of arguing for or
against exceptionalism may not be intended, they may nevertheless be
anticipated. Here, we initiate that project by mapping putative cross-
dimensional effects using examples culled from actual and foreseeable
cases.
To be clear, similar types of tradeoffs will be necessary even for those
who hold preferences that diverge from those advanced in the first-best
scenario. That stylized scenario, however, provides a good starting
template because it captures the essence of today’s frontline immigration
debates. For commentators and jurists with alternative normative
dispositions, the tradeoffs may be calculated differently. But the doctrinal
and political dynamics feeding those tradeoffs are the same. Conceptually,
the trilemma can be engaged from any of its three ports—rights,
federalism, or separation of powers. But they all wind to the same place: a
smorgasbord of normative choices. In Section IV.A, we start with the rights
preference. In Sections IV.B and IV.C, we reengage the trilemma through
the structural ports of federalism and separation of powers, respectively.
When all is said, theorists, advocates, and jurists may reach the same
doctrine-specific decisions they do now about whether, where, why, and
how immigration should receive special constitutional treatment. Our
hypothesized trilemma, however, offers fresh takes on what those decisions
may entail for the system as a whole.
A. The Rights Preference
Most immigrant advocates and theorists will surely welcome rights
normalization. In a normalized regime, federal immigration regulation
would be subject to the same judicial scrutiny as other government actions
under the Bill of Rights. But how the rights victory comes, if at all, may be
more important today than in prior times. That is because the mix of
immigrant interests has expanded to include forms of structural
exceptionalism too. Thus, any celebration of success in rights
normalization must also account for potential downsides to immigrant
interests under the Constitution as a whole.
257 See supra Part II.
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To begin, imagine if the Court decides in the pending case of
Rodriguez v. Robbins that immigration should no longer be treated
exceptionally.258 That categorical proclamation, trumpeted in a case
involving due process questions for immigrant detainees, could easily spill
into other rights settings. For instance, it might extend to an equal
protection claim (as in the pending Morales-Santana v. Lynch case259), to
First Amendment challenges, to Second Amendment challenges,260 and so
on. Indeed, if the Court were to declare in any rights case that immigration
is no longer exceptional, it is fair to assume that immigrant advocates and
scholars would be frontline champions of those intra-dimensional
spillovers.
At the same time, however, the sweep of that judicial pronouncement
in one or more rights settings could also extend, inter-dimensionally, to
federalism and separation of powers. After all, if the Court suddenly
declared that immigration is unexceptional, we might reasonably expect the
Court to apply that freshly minted conception to other immigration
contexts, at the urging of advocates or otherwise.
If so, this hypothetical could result in across-the-board immigration
normalization. For instance, Congress could not pass racially
discriminatory laws, applicants for admission to the country would be
entitled to due process, and banning Muslim immigrants would likely be
out of the question. At the same time, however, if the federalism and
separation of powers preferences partly depend on immigration being
exceptional, then a judicial ruling that immigration is never exceptional
could undermine those ends. Thus, the tradeoff.
On first take, many might happily accept this package deal. But, on
further reflection, the calculation becomes more fraught. Rights
normalization alone would not remedy some of the deep and enduring
pathologies of today’s immigration system. Even with rights normalization,
the United States would still have an estimated undocumented population
of more than 11 million,261 an expansive list of removal statutes that would
258 804 F.3d 1060 (9th Cir. 2015), cert. granted, 136 S. Ct. 2489 (2016) (challenge to the judicial
procedures required by the federal government’s immigration detention policies).
259 804 F.3d 520 (2d Cir. 2015), cert. granted, 136 S. Ct. 2545 (2016) (equal protection challenge
to immigration statute’s facial gender distinctions regarding parental conferral of derivative citizenship
to children).
260 There is a split between the Seventh Circuit and the Fourth, Fifth, and Eighth Circuits as to
whether the Second Amendment protects unauthorized aliens within U.S. borders. See Maria
Stracqualursi, Note, Undocumented Immigrants Caught in the Crossfire: Resolving the Circuit Split on
“the People” and the Applicable Level of Scrutiny for Second Amendment Challenges, 57 B.C. L. REV.
1447, 1447–49 (2016).
261 See Jen Manuel Krogstad, Key Facts About Immigrants Eligible for Deportation Relief Under
Obama’s Expanded Executive Actions, PEW RESEARCH CTR. (Jan. 19, 2016), http://
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withstand constitutional challenge under mainstream standards,262 and
restrictionist states ready and willing to pick up the federal government’s
enforcement slack.263 These are the very problems that federalism and
separation of powers exceptionalism could help mitigate under certain
political conditions, but could not in a regime of across-the-board
normalization. Absent special separation of powers doctrines, for example,
the Executive may be deprived of constitutional authority to grant
categorical reprieves like DAPA and DACA. Meanwhile, absent federalism
exceptionalism, state and local jurisdictions may have greater license to
pursue restrictionist agendas.264
The Texas litigation offers a glimpse of the types of unintended
consequences of rights normalization that we have in mind. To see how
requires rewinding the tape a bit. Prior to the Texas litigation, Arizona
attempted to deny driver’s licenses to the beneficiaries of the Executive’s
DACA program.265 As earlier mentioned, the Ninth Circuit held in the
preliminary injunction phase that the DACA beneficiaries had shown a
likelihood of success on their equal protection claim.266 That decision
appeared to be an unmitigated victory for immigrants, both in its outcome
and the court’s use of a normalized constitutional rights framework to reach
it.267
www.pewresearch.org/fact-tank/2016/01/19/key-facts-immigrants-obama-action/ [https://perma.cc/
MJ8B-KJ4A] (estimating the total unauthorized immigrant population is 11.2 million based on residual
methodology applied to 2012 American Community Survey).
262 See generally 8 U.S.C. § 1182 (2012) (inadmissibility); id. §1227 (deportability).
263 See, e.g., Appellants’ Opening Brief at 1, 12, 23, United States v. Arizona, 641 F.3d 339 (9th
Cir. 2011) (No. CV 10-1413-PHX-SRB) (explaining that Arizona S.B. 1070 was enacted against federal
“non-enforcement of the federal immigration laws” and the Department of Homeland Security’s alleged
“inability (or unwillingness) to enforce the federal immigration laws effectively”).
264 To be sure, DAPA and DACA may not depend on exceptional norms; meanwhile, mainstream
statutory preemption may be sufficient to preempt subfederal restrictionist laws. The point, however, is
that scholars must at least account for the risk that mainstream norms will not fulfill those functions.
See generally supra Part III (elaborating on these points).
265 See Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1059–60 (9th Cir. 2014) (discussing
Arizona’s policy); see also ARIZ. REV. STAT. ANN. § 28-3153(D) (2016) (prohibiting Arizona
Department of Transportation from issuing driver’s licenses to anyone “who does not submit proof
satisfactory to the department that the applicant’s presence in the United States is authorized under
federal law”).
266 See Ariz. Dream Act Coal., 757 F.3d at 1064–65. Thereafter, the Ninth Circuit issued a decision
permanently enjoining Arizona’s driver’s license policy. But, rather than rest its decision on equal
protection grounds, the court decided on preemption grounds. See Ariz. Dream Act Coal. v. Brewer,
818 F.3d 901, 905–06, 913–17 (9th Cir. 2016); see also supra notes 132–36 and accompanying text
(discussing the court’s alternative dispositions).
267 See, e.g., Fernanda Santos, Court Blocks Arizona Policy of Denying Driver’s Licenses to Some
Immigrants, N.Y. TIMES (July 8, 2014), https://www.nytimes.com/2014/07/08/us/08arizona.html?_r=0
[https://perma.cc/QM2L-YXWG].
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Harder to anticipate, however, was how that rights ruling in Arizona
would be spun by oppositional forces in Texas to deny deferred action to an
exponentially larger class of potential DAPA beneficiaries. Texas’s
primary ground for standing was the putative fiscal cost of having to supply
driver’s licenses to DAPA recipients if the state supplies licenses to other
deferred action recipients.268 Indeed, the district court in the Texas litigation
expressly invoked the Ninth Circuit’s equal protection ruling as a reason
why Texas must supply driver’s licenses to DAPA beneficiaries.269 In short,
a move toward normalization in the rights realm reverberated in federalism
and separation of powers arenas, in ways that may have far greater practical
implications—not only for DAPA, but for state challenges to executive
action more generally.
Again, our point here is not that advocates and scholars should have
refrained from pushing for rights normalization as the basis for victory in
the DACA driver’s license case. Rather, our suggestion is that the
possibility of doctrinal and contextual spillovers could (and perhaps
should) be factored in ex ante. At a minimum, the potential costs (not just
actual costs, and certainly not just the potential benefits) must be accounted
for when assessing any moves toward normalization or exceptionality.
Before proceeding, we pause to acknowledge that the contingencies
hypothesized above might be adjustable if, for example, the Court were to
abrogate rights exceptionalism on more refined and textured reasoning than
posited in our opening salvo. Rather than a categorical declaration that
immigration is unexceptional, perhaps the Court will decide that foreign
affairs, judicial solicitude to the political branches, or national
sovereignty—or some combination of the aforementioned factors—are
dubious reasons to treat immigration exceptionally in constitutional rights
cases.270 We leave open the possibility, revisited in Part V, that more
granular reasoning along these or other lines might change the tenor and
likelihood of doctrinal spillovers.271
Still, despite best efforts to avoid spillovers, they can still happen
owing to exceptionalism’s common-root system of supporting rationales. In
the Chinese Exclusion Cases, for example, the Court infamously invoked
national sovereignty as one basis for the federal government’s plenary
268 See Texas v. United States, 809 F.3d 134, 155–56 (5th Cir. 2015).
269 See Texas v. United States, 86 F. Supp. 3d 591, 617–18 (S.D. Tex. 2015) (“[I]n the wake of the
Ninth Circuit’s decision in Arizona Dream Act Coalition v. Brewer, it is apparent that the federal
government will compel compliance by all states regarding the issuance of driver’s licenses to
recipients of deferred action.”).
270 See supra notes 169–74 and accompanying text.
271 Indeed, for instrumentally minded advocates, these types of adjustments may be an important
takeaway of this Article. See infra Part V (suggesting how advocates might leverage our insights about
immigration exceptionalism’s common-root system of supporting rationales).
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power over immigration.272 Debunking the sovereignty rationale in service
of the rights preference would seemingly tame immigration’s extra-
constitutional status and thus allow for normal judicial review when
constitutional rights are implicated.273 But doing so might also cascade into
federalism. After all, thick notions of national sovereignty are potential
antidotes to thick notions of state sovereignty. Thus, relaxing the former
might have implications for the latter.274 Indeed, both restrictionist and
integrationist subfederal jurisdictions have rallied behind robust
conceptions of state sovereignty to defend their immigration-related
preferences.275 Moreover, Texas relied on its sovereign status as a reason to
support Article III standing to challenge DAPA, including on separation of
powers grounds.276 Now, states are doing the same in their legal challenges
to President Trump’s immigration ban.277
Again, it is not our purpose to make predictions here. Our aim is
simply to bring new attention to the possibilities. Advocates and theorists
may get a little more, or a little less, than they ask of courts. That slack is
not unique to immigration. But, when dealing in the currency of
exceptional government power, the effects can be vastly magnified.
B. The Federalism Preference
Turning to the federalism dimension reveals similar tensions and
accommodations. As explained in Parts I and II, there are several
272 Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889) (linking “[t]he power of exclusion
of foreigners” to the “sovereignty belonging to the government of the United States”); see also Kerry
Abrams, supra note 237, at 617–18 (observing that “plenary power and structural immigration
preemption are distinct concepts,” but that “early cases articulating the two doctrines drew on the same
logic”).
273 See supra Section IV.A.
274 To be clear, these sovereignties are different. In the federalism context, however, they are
relativistic. Thus, the meaning and scope of national sovereignty can have implications for state
sovereignty, and vice versa.
275 See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2511–12 (2012) (Scalia, J., dissenting) (“As
a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those
limitations expressed in the Constitution or constitutionally imposed by Congress.”); see also Bill Ong
Hing, Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good
Public Policy, 2 U.C. IRVINE L. REV. 247, 296, 309 (2012) (providing constitutional defense of state
and local sanctuary policies); Markowitz, supra note 97 (explaining and defending the legality of the
proposed state citizenship bill on sovereignty grounds); Brief of Respondent Texas in Opposition at 17–
19, United States v. Texas, 136 S. Ct. 2271 (2015) (No. 15-674) (arguing that Texas should be granted
standing based on its sovereign status).
276 See Brief of Respondent Texas in Opposition, supra note 275, at 17–19.
277 See Washington v. Trump, No. 17-35105, 2017 WL 655437 (9th Cir. Feb. 16, 2017) (holding
that Washington and Minnesota have standing); Complaint for Declaratory & Injunctive Relief,
Washington v. Trump, No. C17-0141JLR (W.D. Wash. Jan. 30, 2017); see also supra notes 5–6
(original and revised immigration bans).
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immigration federalism doctrines advanced and supported in the literature
today, which to greater and lesser extents, may all be up for grabs in the
Court. We now revisit those immigration federalism doctrines, recast
through our trilemma.
1. The Exclusivity Principle.—To begin, a robust exclusivity
doctrine can help deliver part of the first-best scenario’s federalism
preference—namely, the part that squeezes restrictionist state and local
laws from the national landscape. Recall that the Court has limited the
exclusivity principle to regulations governing the admission and expulsion
of noncitizens (i.e., immigration regulation).278 Some theorists, advocates,
and lower court jurists have approached this doctrine functionally, such that
restrictionist regulations that make life more difficult for undocumented
immigrants, or indirectly affect migration decisions, are treated as
immigration regulation.279
For immigrant advocates, the appeal of this functionalist approach is
the ends it delivers. But the rationale behind the functional approach could
be extended further to sweep immigration-friendly policies into the
preemption vortex. After all, if indirect restrictionist pushes from a state or
city are enough to trigger the exclusivity principle, why don’t integrationist
pulls of immigrants into a state also trigger preemption? In theory, at least,
if immigrants are mobile enough to exit from a jurisdiction where life is
made hard for them or their families, immigrants may be mobile enough to
enter a jurisdiction where life can be better. Empirically, perhaps that is not
the case. But we are aware of no studies that demonstrate the difference.
Although it is not clear how these tensions might be resolved, a robust
exclusivity principle surely opens the possibility of this intra-dimensional
tradeoff—namely, structural preemption of restrictionist and integrationist
subfederal laws.280
278 As explained earlier, preemption via the exclusivity principle is said to derive from the
constitutional structure; thus, the existence (or not) of a conflict with federal law is theoretically
irrelevant. See supra Section II.B.1. Instead, what matters is whether the subfederal law qualifies as a
“regulation of immigration.” See DeCanas v. Bica, 424 U.S. 351, 353, 363–65 (1976); Rubenstein,
supra note 29, at 118–31 (distinguishing structural preemption, statutory preemption, and
administrative preemption).
279 See, e.g., Lozano v. City of Hazleton, 620 F.3d 170, 220 (3d Cir. 2010), vacated, 563 U.S. 1030
(2011) (“We recognize, of course, that Hazleton’s housing provisions neither control actual physical
entry into the City, nor physically expel persons from it. Nonetheless, [i]n essence, that is precisely
what they attempt to do.” (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 160
(1989)) (internal quotation marks omitted)); see also supra Sections I.B.1, II.B.1.
280 See Erin F. Delaney, Note, In the Shadow of Article I: Applying a Dormant Commerce Clause
Analysis to State Laws Regulating Aliens, 82 N.Y.U. L. REV. 1821, 1834, 1839–40 (2007)
(“[P]reemption analysis, even assuming that it is effectively and predictably applied, might actually
undermine pro-immigrant reform efforts.”); cf. Rodríguez, supra note 194, at 609 (“[I]ntegration
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Moreover, inter-dimensionally, it is worth recalling here that the
exclusivity principle is historically linked to the plenary power doctrine in
rights cases. Thus, reifying the exclusivity principle may also indirectly
reify rights exceptionalism. Immigrant advocates surely do not intend that.
But government lawyers might.281
2. Executive Preemption via Nonbinding Policy.—Like the federal
exclusivity principle, executive preemption via nonbinding policies is not a
one-way ratchet. On the one hand, this exceptional doctrine has the
potential to advance the federalism, rights, and separation of powers
preferences simultaneously. For example, executive preemption can quash
restrictionist subfederal laws (thus boosting the federalism preference).
Meanwhile, executive preemption can root out race-based subfederal
immigration enforcement (advancing the rights preference), and perform
better in that regard than congressional statutes (thus furthering the
separation of powers preference). Moreover, executive preemption can do
useful work that the exclusivity principle cannot. Whereas the exclusivity
principle operates only on subfederal immigration regulations, executive
preemption can displace restrictionist alienage regulations (i.e., those that
pertain to noncitizens but that do not qualify as regulations of admission or
removal).282
On the other hand, however, executive preemption via nonbinding
executive policy might upset the federalism, separation of powers, and
rights preferences as well.283 For instance, a sufficiently motivated
Executive might unilaterally craft rights-depriving programs, and preempt
integrationist state laws that try to intercede. Under this skeptical scenario,
trending integrationist measures like California’s TRUST Act, local
sanctuary laws throughout the country, and New York’s contemplated state
citizenship bill may become the next targets of executive preemption.284
measures sometimes resemble immigration controls. This overlap is given little thought in a world of
federal exclusivity, but the success of immigrant integration depends on it.”).
281 See, e.g., Brief for Petitioner at 7, Kerry v. Din, 135 S. Ct. 2128 (2015) (No. 13-1402) (the
government linking federal exclusivity to consular nonreviewability).
282 See supra notes 104–09 and accompanying text (explaining the Court’s dichotomous treatment
of immigration versus alienage regulations, and how the line between breaks down in theory and
practice).
283 See Rubenstein, supra note 124 (elaborating on these points).
284 See California Trust Act, CAL. GOV’T CODE § 7282 (West 2014); Brief for the Center on the
Administration of Criminal Law as Amicus Curiae Supporting Appellee-Plaintiff at 23, United States v.
Arizona, 641 F.3d 339 (9th Cir. 2011) (No. 10-16645) (stating that at least seventy-three cities,
counties, and states have at various times had “non-cooperation” provisions); Hing, supra note 275, at
296, 309 (discussing sanctuary laws and defending them on constitutional and normative grounds);
Markowitz, supra note 97, at 905–10 (same for New York’s contemplated state citizenship law);
Rosenbaum, supra note 208, at 504–14, 522–25 (same for California TRUST Act). Moreover, although
the Obama Administration’s rollout of the Secure Communities program may not have been motivated
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Indeed, President Trump’s executive order on interior enforcement
makes it clear that his Administration intends to crack down on local
jurisdictions that interfere with federal enforcement efforts.285 In addition,
he has directed DHS to enter into as many § 287(g) agreements286 as
possible with willing local agencies and municipalities.287 In opposition, the
California legislature is currently considering a “state sanctuary” bill,
which includes a provision barring localities in the state from entering into
section § 287(g) agreements.288 If the state law passes, could the executive
order and its implementing guidance preempt it?
To be clear, we take no position here on whether these and other
integrationist initiatives can survive preemption challenges under existing
federal statutes and mainstream federalism doctrines. For present purposes,
the point is that a robust executive-preemption doctrine opens a new legal
front: federal administrators’ interference with subfederal integrationist
policies.289 Certainly, there is no shortage of legal or political reasons that a
sufficiently motivated administration might offer for doing so. Just to name
a few, administrators might claim that state or local integration programs
interfere with a federal statute,290 interfere with (new) enforcement
priorities, unduly incentivize unlawful migration to the country, create
untoward races-to-the-top (or bottom) among the states for human
to shut down subfederal sanctuary and non-cooperation laws, it had that effect throughout many
jurisdictions. See Cox & Rodríguez, Redux, supra note 158, at 137 (“Secure Communities promised to
displace the unpredictable human element of formal and informal cooperation with local police.”).
285 Exec. Order 13,768, 82 Fed. Reg. 8799, 8801 (Jan. 25, 2017) (detailing, in § 9, an intent to have
the DOJ and DHS impose financial penalties on “sanctuary jurisdictions”).
286 See id.; 8 U.S.C. § 1357(g) (2006) (authorizing the federal government to enter into agreements
with state and local agencies to seek state and local aid in immigration enforcement).
287 Exec. Order 13,768, § 8 (detailing that it is the “policy of the executive branch to empower
State and local law enforcement agencies . . . to perform the functions of an immigration officer”
through the use of 287(g) agreements); see also Memorandum from John Kelly, Sec’y, U.S. Dep’t. of
Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs & Border Prot., et al. (Feb. 20,
2017) (detailing implementation policies for “[e]xpansion of the 287(g) [p]rogram in the [b]order
[r]egion”).
288 S.B. 54, 2017–2018 Leg., Reg. Sess. (Cal. 2017). This proposed state law, and specifically
§ 7284.6(a)(H), would prohibit state law enforcement agencies from “[p]erforming the functions of an
immigration officer, whether pursuant to [§ 287(g)] . . . or any other law, regulation, or policy, whether
formal or informal.”
289 See Rubenstein, supra note 124, at 1004–05.
290 See, e.g., Application and Proposed Brief for Amicus Curiae the United States of America at 2,
In re Garcia, 315 P.3d 117 (Cal. 2014) (No. S202512) [hereinafter Garcia Amicus Brief] (arguing that
California had no authority under then-extant law to admit an undocumented immigrant to the state
bar).
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643
capital,291 or reduce incentives for undocumented immigrants to voluntarily
depart.292
Indeed, even the Obama Administration—which introduced DACA
and DAPA—intervened to challenge certain state integrationist policies.
For example, when Illinois tried to limit the use of the federal E-Verify
system to check employment authorization, the Administration successfully
sued to preempt that state law.293 And, when the California Supreme Court
was considering whether to admit an undocumented immigrant as a lawyer
to the state bar, the Obama Administration filed an amicus brief arguing
that the state court could not do so under existing federal law.294
To be sure, political forces might temper executive preemption of
subfederal integrationist laws, particularly with the rising power and
prominence of Latino voters.295 But politics is not a limiting principle that
theorists should necessarily rush to, especially if it is the only limiting
principle. Politics has not prevented past administrations from taking
hardnosed (not to mention, rights-depriving) actions against immigrants.296
291 Cf. Rodríguez, supra note 194, at 588 (discussing a report in Iowa that called for “immigrant
recruitment to reenergize the state’s population, characterizing immigrants as productive, motivated,
eager to work, and entrepreneurial”).
292 See Rubenstein, supra note 124, at 1005–06.
293 See United States v. Illinois, No. 07-3261, 2009 WL 662703, at *3 (C.D. Ill. Mar. 12, 2009).
294 See Garcia Amicus Brief, supra note 290, at 2. Subsequent to oral argument at the California
Supreme Court, the California legislature passed a law providing bar licenses for undocumented
applicants, thus obviating the specific objection of the federal government. See CAL. BUS. & PROF.
CODE § 30 (West 2014).
295 This may be especially true as the Latino electorate becomes a critical voting bloc for winning
presidential primaries and general elections. Mark Hugo Lopez & Paul Taylor, Latino Voters in the
2012 Election, PEW HISP. CTR. REP. (Nov. 7, 2012), http://www.pewhispanic.org/2012/11/07/latino-
voters-in-the-2012-election/ [https://perma.cc/ZNN6-YTWU]; Lizette Ocampo, Top 6 Facts on the
Latino Vote, CTR. FOR AM. PROGRESS (Sept. 17, 2015, 9:04 AM), https://www.americanprogress.org/
issues/immigration/news/2015/09/17/121325/top-6-facts-on-the-latino-vote/ [https://perma.cc/AT4L-
9D7E]. Even so, however, it assumes that Latino voting preferences on immigration will remain static
and predictable. This may not be so. For example, in California, it has been true for a little more than
two decades that Latinos vote mainly Democratic and care deeply about immigration issues. However,
prior to Pete Wilson’s embrace of Proposition 187, Latino voting in California was much less
predictable and up for grabs. See Cathleen Decker, ‘90’s Immigration Battle Remade California’s
Political Landscape, L.A. TIMES (Nov. 23, 2014), http://www.latimes.com/local/politics/la-me-pol-
california-politics-20141123-story.html [https://perma.cc/6H2A-CF4M].
296 See Johnson, supra note 208, at 635–36 (noting, among other episodes, “the repatriation of
persons of Mexican ancestry . . . during the Great Depression, deportations of communist party
members during the McCarthy era, exploitation of Mexican workers through the Bracero Program, the
mass arrests, detentions, and removals of Muslim and Arab noncitizens after the attacks on September
11, 2001, and the raids, detention, and removal of noncitizens in contemporary times” (footnotes and
internal quotation marks omitted)).
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Quite often, anti-immigrant politics is to blame for these incursions, and it
will be the cause of future ones.297
Moreover, administrative notice-and-comment rulemaking procedures
could offer some inertial resistance against executive preemption. By law,
those procedures open administrative decisions to a plurality of viewpoints
(including by states and subfederal officials), requiring the agency to take
competing viewpoints into consideration and to justify any final decisions
made.298 But, as discussed above, these administrative procedures are not
prerequisites to the preemption doctrine under consideration.299 Indeed, that
is partly what makes preemption via nonbinding executive policies so
exceptional and its backing by immigrant advocates so chancy.
Thus far, what has saved some integrationist measures from challenge
is the general difficulty of establishing standing to sue.300 But the Texas
297 Consider the Obama Administration’s raids to find and remove Central American immigrants,
many of whom may have legitimate claims to asylum and are arguably not receiving fair treatment. For
a recent report, see Jerry Markon and David Nakamura, Tensions Escalate Further Between Obama,
Democrats over Deportation Raids, WASH. POST (Jan. 12, 2016), https://www.washingtonpost.com/
news/federal-eye/wp/2016/01/12/tensions-escalate-further-between-obama-democrats-over-deportation-
raids/ [https://perma.cc/M8AR-VKBN].
298 As applied by the Court, the APA’s notice-and-comment procedure is demanding (though, to be
sure, less demanding than the legislative process). First, the agency must provide advance notice of its
proposed rulemaking in the Federal Register and offer interested parties the opportunity to submit
written comments in response. See 5 U.S.C. § 553(b)–(c) (2012). Moreover, to enable meaningful
public comments, courts have required the agency to make its intentions clearly known in the notice of
rulemaking. See, e.g., Nat. Res. Def. Council v. EPA, 279 F.3d 1180, 1187–88 (9th Cir. 2002). Further,
because courts require that an agency’s final rule be a “logical outgrowth” of what the notice
foreshadowed, the agency may not change an important aspect of a proposed rule without first
providing an additional notice and opportunity for public comment. See, e.g., Phillip M. Kannan, The
Logical Outgrowth Doctrine in Rulemaking, 48 ADMIN. L. REV. 213, 214 (1996) (“Generally stated, if
the final rule is found by the reviewing court to be the logical outgrowth of the proposed rule, it will
find adequate notice . . . .”). Finally, although the APA textually requires that a final regulation be
accompanied by a “concise general statement of [the regulation’s] basis and purpose,” § 553(c), courts
generally require the agency to respond to all significant comments received, which burdens the agency
to explain its decisions rather thoroughly. See, e.g., Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 (1983) (discussing that hard look review requires an
agency to articulate the reasoning behind its decision and the court must review the reasoning); Thomas
J. Miles & Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U. CHI. L. REV. 761, 761
(2008) (providing that hard look doctrine requires agencies “to offer detailed, even encyclopedic,
explanations” for agency actions); see also Hickman, supra note 122, at 474 (explaining that, despite
the text of § 553(c), that judicial requirements for explanation “[e]schew[] concision”). Apart from the
foregoing, notice-and-comment rulemakings potentially trigger political and judicial oversight. See
Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Administrative Procedures as Instruments
of Political Control, 3 J.L. ECON. & ORG. 243, 244, 258 (1987).
299 See supra notes 123–27, 199–205 and accompanying text.
300 See, e.g., Arpaio v. Obama, 797 F.3d 11, 25 (D.C. Cir. 2015) (holding that Maricopa County,
Arizona Sheriff, Joe Arpaio, lacked standing to challenge DAPA); Day v. Sebelius, 376 F. Supp. 2d
1022, 1033–34 (D. Kan. 2005) (holding that plaintiffs lacked standing to challenge Kansas’s in-state
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litigation challenging DAPA may widen or open new paths to state
standing. The district court and the Fifth Circuit held that Texas had met its
burden in this regard, and the Supreme Court evenly split on the issue.301 In
any event, standing requirements will not prevent the federal government
from suing to shut down state laws—whether restrictionist (as the Obama
Administration did in Arizona) or integrationist (as it did in Illinois)—or
simply weighing in as amicus (as it did in California).
Ironically, the best defense for subfederal jurisdictions against robust
executive power may be mainstream constitutional federalism norms, such
as the anti-commandeering doctrine.302 Taken at face value, the anti-
commandeering doctrine forbids the Executive to compel state or local
action. For instance, in the immigration context, the Executive would be
prohibited from compelling subfederal lawmaking bodies to pass
restrictionist immigration measures, compelling subfederal officers to share
immigration-related information with federal authorities, or compelling
subfederal officers to detain removable immigrants on the federal
government’s behalf. Indeed, the anti-commandeering principle and related
state sovereignty rationales play leading roles in the scholarship defending
subfederal sanctuary policies and, more recently, state citizenship.303
But here again is the rub: as of yet, there is no judicially recognized
theory that explains why certain federalism doctrines, but not others,
should be relaxed for immigration. Indeed, the reasons for treating
immigration federalism exceptionally could be marshaled in favor of an
immigration law carve out from the anti-commandeering doctrine. The
Court’s forefront (or at least formal) reasons for the anti-commandeering
doctrine are rooted in thick notions of state sovereignty.304 Yet, if that
tuition law for undocumented immigrants). But cf. Texas v. United States, 809 F.3d 134, 162–63 (5th
Cir. 2015) (holding that the state of Texas had standing to challenge DAPA).
301 United States v. Texas, 136 S. Ct. 2271, 2272 (2016) (mem.) (per curiam); Texas v. United
States, 809 F.3d 134, 151–63 (5th Cir. 2015); Texas v. United States, 86 F. Supp. 591, 616–44 (W.D.
Tex. 2015); cf. Massachusetts v. EPA, 549 U.S. 497, 520 (2007) (noting that states receive “special
solicitude” in the standing analysis). Although the Supreme Court’s per curiam decision in Texas did
not expressly provide the bases for its split, the four Justices upholding the lower court’s preliminary
injunction could only have reached that result if they also found that Texas demonstrated the threshold
requirement of Article III standing. Conversely, the four votes that would have overturned the lower
court might have done so either on standing grounds, on the merits, or both.
302 See Printz v. United States, 521 U.S. 898, 926–28 (1997) (holding that the federal government
cannot commandeer subfederal officers); New York v. United States, 505 U.S. 144, 176 (1992)
(holding that the federal government cannot commandeer state legislatures).
303 See generally Hing, supra note 275 (relying on strong conceptions of state autonomy and
sovereign authority to defend positions on sanctuary laws); Markowitz, supra note 97 (same as to state
citizenship proposals, which include and extend beyond sanctuary policies).
304 See Printz, 521 U.S. at 935 (explaining that federal commandeering of state officials is
“fundamentally incompatible with our constitutional system of dual sovereignty”); see also New York,
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sovereignty is porous enough to allow preemption via nonbinding
executive policies, perhaps it is also porous enough to allow
commandeering.
We are not suggesting that the anti-commandeering norm will or
should be relaxed for immigration; just that the logic of exceptional
immigration preemption authority leaves open the possibility. Lest it be
forgotten, the federal government historically commandeered state courts in
immigration. The Supreme Court’s anti-commandeering holding in Printz
v. United States distinguished that immigration precedent but did not
expressly disavow it.305
3. Equal Pro-Emption.—Like the exclusivity principle and executive
preemption, the proposed doctrine of Equal Pro-Emption carries a set of
potential costs and benefits. Preliminarily, judicial buy-in to this
exceptional doctrine may not be forthcoming. Equal Pro-Emption must
overcome a trifecta of rights, federalism, and separation of powers
jurisprudence of the Court’s own creation.306 The concern expressed here is
not with the merits of Equal Pro-Emption. Instead, the concern that we flag
is the immigration federalism regime that might emerge if Equal Pro-
Emption is eschewed by the Court, while other exceptional preemption
doctrines are ushered in.307 Put otherwise, an immigration federalism
package that includes robust federal exclusivity and executive preemption
doctrines (without Equal Pro-Emption) might be worse on the whole than a
federalism regime with no exceptional preemption doctrines.
Apart from these intra-dimensional considerations, Equal Pro-
Emption’s hybrid composition of federalism and rights norms cries out for
an inter-dimensional assessment. On the one hand, Equal Pro-Emption—if
adopted by the Court—could serve to preempt restrictionist subfederal
laws, thus potentially vindicating constitutional rights indirectly. Moreover,
it is often more palatable for courts to rule on preemption grounds than on
505 U.S. at 177 (striking down federal law directing state legislatures to pass laws consistent with
federal standards).
305 521 U.S. at 905–07 (“These early laws establish, at most, that the Constitution was originally
understood to permit imposition of an obligation on state judges to enforce federal prescriptions, insofar
as those prescriptions related to matters appropriate for the judicial power.”); see also id. at 949
(Stevens, J., dissenting) (chastising the majority for discounting this historical precedent). Indeed, for
the initial period of federal control over immigration (from 1882 to 1891) the federal government relied
on existing state institutions and officials to execute its policies. This remained true until the federal
government created its own administrative apparatus. See GULASEKARAM & RAMAKRISHNAN, supra
note 31, at 26–27.
306 See Rubenstein, supra note 29, at 107–12.
307 See id.
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constitutional rights grounds, as the latter requires courts to find that
facially neutral laws are, indeed, purposefully discriminatory.308
On the other hand, however, what makes Equal Pro-Emption
potentially problematic are these appealing qualities. To begin with,
vindicating rights via preemption carries ancillary opportunity costs. In
cases where Equal Pro-Emption might apply (namely, to challenge
subfederal restrictionist laws), a more direct rights challenge will almost
always be available.309 Yet, when courts choose to directly rule only on
preemption grounds, which is common,310 then important questions about
rights may go unanswered, or worse, simply shrugged away.311
The Arizona litigation, itself, offers a striking example. There, the
federal government challenged Arizona’s laws only on preemption
grounds. And when pressed by Chief Justice Roberts during the opening
moments of oral argument, the U.S. Solicitor General conceded that the
federal government’s challenge did not rely on claims of racial or ethnic
308 See, e.g., Fan, supra note 208, at 940–42. That said, the initial hurdle of expressly adopting
Equal Pro-Emption, in the first instance, will require the Court to explain why it is appropriate to shift
the burden to states to disprove discriminatory intent. Cf. Rubenstein, supra note 124, at 1006–07
(explaining the institutional and doctrinal hurdles that make this unlikely from a conservative Court).
Paradoxically, crafting the doctrine, in the first place, will require the very judicial hubris that the
doctrine is designed to avoid in downstream applications. That is, before applying a judicially
countenanced Equal Pro-Emption doctrine, the Court must first explain why shifting the burden to
states to disprove discrimination is doctrinally appropriate. Perhaps for that reason, Equal Pro-Emption
might do better as an inchoate doctrine. If lower courts are already receptive to employing an equality
norm sub silencio, the best strategy for immigrant advocates may be to wink at the courts but without
making it too obvious.
309 Thus, in such cases, reviewing courts might choose to rule on preemption grounds, rights
grounds, or both. The Supreme Court, for its part, has run the gamut. In Toll v. Moreno, a case
challenging a state-alienage classification, the Court sidestepped the equal protection question, and
decided the case on the basis of preemption. 458 U.S. 1, 11 n.16 (1982). In Plyler v. Doe, the Court
ruled on equal protection grounds, and expressly declined to rule on preemption grounds. 457 U.S. 202,
224–26 (1982). And, in Graham v. Richardson, the Court ruled on both equal protection and
preemption grounds. 403 U.S. 365, 375–76, 382 (1971). It bears noting, however, that Graham ruled
that equal protection and preemption were each independent grounds for striking down the state law at
issue. Id. By contrast, the Equal Pro-Emption theory infuses preemption with equality norms, but does
not entail or require a finding that an equal protection violation has in fact occurred. See supra notes
128–41 and accompanying text.
310 Lozano v. City of Hazleton, 620 F.3d 170, 206 (3d Cir. 2010), vacated, 131 S. Ct. 2958 (2011);
Chamber of Commerce v. Edmondson, 594 F.3d 742, 765–67, 769 (10th Cir. 2010); United States v.
Arizona, 703 F. Supp. 2d 980, 991–1007 (D. Ariz. 2010); Villas at Parkside Partners v. City of Farmers
Branch, 701 F. Supp. 2d 835, 851–59 (N.D. Tex. 2010); Villas at Parkside Partners v. City of Farmers
Branch, 577 F. Supp. 2d 858, 866–75 (N.D. Tex. 2008); Garrett v. City of Escondido, 465 F. Supp. 2d
1043, 1056–57 (S.D. Cal. 2006).
311 Johnson, supra note 208, at 612 (observing that judicial reliance on preemption theories to
analyze subfederal restrictionist laws “often fails to directly address the civil rights impacts on minority
communities”); see also Fan, supra note 208, at 932–38.
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profiling.312 Later, in upholding Section 2(B) against the government’s
facial preemption challenge, the Court declined to presume that a state law
would be interpreted by the state court in a way that would lead to
constitutional violations against immigrants or people of color.313
Of course, the result in any particular case may be the same regardless
of whether the reviewing court rules on preemption or rights grounds.
Namely, the subfederal law at issue may be invalidated. Yet there is an
important difference: preemption vindicates notions of federal primacy; it
does not directly vindicate individual rights per se.314 For some, that
difference matters.315
In important respects, the subfederal immigration revolution of the
past decade has presented an opportunity to rethink constitutional rights—
not just in immigration, but also more generally. When courts and
advocates rely on preemption theories as a crutch, it detracts and distracts
from what arguably matters more: advancing rights qua rights. Of course,
that is not to deny the relevance or importance of structural concerns. But,
the fact that immigrant advocates and theorists tend to focus mostly on
subfederal restrictionist laws, and not integrationist ones, strongly indicates
that discrimination (not federalism) is the driving concern.
More generally, Equal Pro-Emption is a concession that immigration
law can be exceptional. That could pose problems—now or later—for those
claiming that immigration should not be exceptional. Meanwhile, for those
312 To the consternation of many immigrant advocates, the federal government challenged S.B.
1070 only on preemption grounds (presumably because challenging the state’s restrictionist laws on
equal protection grounds would have been more difficult, both legally and politically). Cf. Fan, supra
note 208, at 938 (“Antidiscrimination norms did not expressly enter the district court’s analysis, though
the court was quite cognizant of the concerns and they arguably influenced its preemption analysis.”
(footnote omitted)). In a telling exchange during the opening moments of oral argument, Chief Justice
Roberts interrupted Solicitor General Donald Verrilli to inquire: “Before you get into what the case is
about, I’d like to clear up at the outset what it’s not about. No part of your argument has to do with
racial or ethnic profiling, does it?” Transcript of Oral Argument at 33, Arizona v. United States, 132 S.
Ct. 2492 (2012) (No. 11-182). The Solicitor General relented, responding: “That’s correct.” Id. And
when the issue of race surfaced only minutes later in the Solicitor General’s comments, Justice Scalia
was quick to remind the Solicitor General of his earlier commitment to what the case was not about. Id.
at 47.
313 Arizona, 132 S. Ct. at 2509–10.
314 Bosniak, supra note 69, at 1107 (suggesting that federalism and the Supremacy Clause concern
“institutional process” or “who decides” and not who are the “the rightful subjects of equality”).
315 Harold Koh, for example, long ago lamented the inadequacies of preemption as a substitute for
equal protection in cases involving discrimination against noncitizens. See Harold Hongju Koh,
Equality with a Human Face: Justice Blackmun and the Equal Protection of Aliens, 8 HAMLINE L. REV.
51, 97–98 (1985). Moreover, as Professor Mary Fan explains, a danger of using preemption as a proxy
for vindicating rights is that it may allow racialized sentiments “to fester wholly unaired” and
“embolden[] the angry and anxious to enact intensifying and multifarious vehicles of venting ire at the
expense of out-groups.” Fan, supra note 208, at 942.
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who believe that immigration can or should be exceptional for some
purposes (even if not for others), there might still be reason for pause.
Equal Pro-Emption muddles the boundaries between rights and federalism.
In other settings, that can lead to federalism–rights spillovers that inure to
the detriment of immigrant interests.316
C. Separation of Powers Preference
Finally, turning to separation of powers, some scholars and advocates
support the notion that the Executive has (or should have) exceptional
leeway to pursue immigration policies.317 How the Court rules on that issue
can have implications beyond separation of powers.
Consider the impact on the rights preference if the Court embraces an
inherency or functional theory of executive power. If rights exceptionalism
remains, then in future cases the Executive could use its power in rights-
degrading ways.318 For instance, the Executive could—as it did post-9/11—
create enforcement or immigration-gathering programs that target
immigrants of certain nationalities.319 On an inherency rationale, the
Executive might take even more pernicious action, without any need for
express congressional authorization, and even despite statutory
prohibitions.
If the retort is that immigrant interests, however defined, are in
comparatively better hands with the Executive than in other government
institutions, then much would seem to depend on who the President is.
Under conditions where relevant political majorities and the White House
are decidedly anti-immigrant, we can forget about the best-case scenario
316 Professor Condon’s recent study, which suggests that lower courts are increasingly consulting
federal policies as a benchmark to gauge rights challenges to subfederal policies, may be a cautionary
example. See Condon, supra note 82.
317 See supra Section II.C.
318 Cf. Margulies, supra note 159 (arguing that DAPA is ultra vires and cautioning that the program
sets a dangerous political precedent); see also William P. Marshall, Actually We Should Wait:
Evaluating the Obama Administration’s Commitment to Unilateral Executive-Branch Action,
2014 UTAH L. REV. 773, 775 (“Presidential power has already expanded dramatically since the middle
part of the twentieth century . . . . In light of this reality, investing the presidency with even more
powers is problematic no matter what the circumstances.”).
319 Following the terrorist attacks of September 11, 2001, the Department of Justice rolled out the
“special registration” program of the National Security Entry-Exit Registration System (“NSEERS”).
Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 67,766 (Nov. 6,
2002). This program required thousands of young men from predominantly Muslim countries to report
to local immigration offices for interrogations, fingerprints, and photographs, and withstood
constitutional and administrative law challenges. See, e.g., Kandamar v. Gonzales, 464 F.3d 65, 73–74
(1st Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006); Ahmed v. Gonzales, 447 F.3d
433, 439–40 (5th Cir. 2006); Ali v. Gonzales, 440 F.3d 678, 681 n.4 (5th Cir. 2006); Zafar v. U.S. Att’y
Gen., 461 F.3d 1357, 1367 (11th Cir. 2006).
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for immigrant interests and turn to worst-case scenarios. Indeed, those
scenarios may be dawning under President Trump.
Depending on perspective, these concerns may be partly allayed, or
intensified, under the dynamic lawmaking models recently advanced by
Cox and Rodríguez (writing together) and Motomura. They offer rule of
law norms as a limiting principle.320 Even then, however, the conditions for
legitimate executive lawmaking under their models might be satisfied if the
executive policy is transparent and reduces arbitrary enforcement relative
to the system it replaces. So, for instance, if a President announces from the
Rose Garden that Immigration and Customs Enforcement officials should
consistently exclude Muslim immigrants, and offers arguably rational
reasons for doing so, that might satisfy the rule of law values touted by
supporters of DAPA/DACA.321 And, insofar as the rule of law ideal is not a
judicially enforceable standard—which Cox and Rodríguez
acknowledge322—it is not clear that the rule of law is a limiting principle at
all, beyond self-regulation in the political sphere.323
Beyond upsetting the rights preference, an exceptional executive
authority can also undermine the federalism preference, for reasons that we
have already previewed.324 Under mainstream federalism doctrine, only
valid federal laws can preempt state and local laws. But if the Executive
has inherent or dynamic lawmaking authority, then that could vastly
expand the class and types of federal law that can preempt subfederal laws.
Nothing we have said denies the potential good that may come from
special separation of powers doctrines and arrangements. Foremost, the
Executive might use its enhanced power in ways that ease Congress’s harsh
deportation laws in nonarbitrary ways (furthering the separation of powers
320 Hiroshi Motomura, The President’s Dilemma: Executive Authority, Enforcement, and the Rule
of Law in Immigration Law, 55 WASHBURN L.J. 1, 26–27 (2016) (arguing that rule of law norms are a
reason why (1) the plenary power should be abrogated, (2) top-down categorical enforcement policies
within the Executive Branch—in particular, DACA and DAPA—are lawful, and (3) subfederal
restrictionist laws should be preempted); see also Cox & Rodríguez, Redux, supra note 158, at 192–93;
MOTOMURA, supra note 24, 204–05.
321 Cf. Rubenstein, supra note 124, at 1002 (flagging this concern). The rule of law, of course, is a
highly contested and complicated collection of norms. See Erwin Chemerinsky, Toward a Practical
Definition of the Rule of Law, JUDGES J., Fall 2007, at 4 (“Few concepts in law are more basic than the
rule of law, few are more frequently invoked, and yet few are more imprecisely defined.”). However,
under most conceptions, judicial review is a core ingredient. See, e.g., LON L. FULLER, THE MORALITY
OF LAW 216–17 (1969). For a useful typology of the “thick” and “thin” gradients of the rule of law, see
BRIAN TAMANAHA, ON THE RULE OF LAW: HISTORY, POLITICS, THEORY ch. 7 (2004).
322 Cox & Rodríguez, Redux, supra note 158, at 210–14.
323 Cf. ERIC A. POSNER & ADRIAN VERMEULE, THE EXECUTIVE UNBOUND: AFTER THE
MADISONIAN REPUBLIC (2011) (arguing that the modern presidency is unconstrained by law); Richard
H. Pildes, Law and the President, 125 HARV. L. REV. 1381, 1410–13 (2012) (reviewing and critiquing
the account portrayed by Posner and Vermeule).
324 See supra notes 288–93 and accompanying text.
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preference), do so in rights-regarding ways (consistent with the rights
preference), and promote state and local integration of immigrants (per the
federalism preference). But there are less idyllic scenarios, which deserve
greater airtime in debates about immigration exceptionalism.
* * *
Our stylized trilemma does not advocate for suboptimal scenarios, or,
indeed, for any set of tradeoffs that might ensue. Rather, it brings the
potential costs and benefits to the same ledger. Due to immigration
exceptionalism’s common-root system of putative rationales, reasons
offered in favor or against exceptionalism in one doctrinal context may
spill into others. Normative accommodations, whether and however made,
will almost certainly be necessary.
We leave open the possibility that a mix of exceptional structural
doctrines may deliver a second-best regime, given that rights normalization
may not be in the cards. We also fully appreciate that, under certain
political conditions, the structural immigration doctrines up for grabs may
bode well for undocumented immigrants. Because this population is
generally removable by federal statute,325 undocumented immigrants stand
to benefit from the combined effects of a gridlocked Congress, an
Executive Branch that deprioritizes enforcement against certain categories
of potentially removable immigrants, and a robust preemption doctrine that
prevents state and local governments from filling the enforcement gap.
Still, as a means to these and related ends, federalism and separation of
powers exceptionalism come with a major limitation: any promise they
hold is politically contingent.
V. A NEW FOUNDATION FOR IMMIGRATION THEORY
This Article calls for a shift in how theorists, advocates, and jurists
engage questions about immigration exceptionalism moving forward.
Context-specific treatments are important but inherently limited precisely
because they do not account for the dynamism between constitutional
contexts. Our suggested reframing spans across myriad constitutional
dimensions to capture how the Court’s various doctrines interact with each
other and with politics in ways that impact the whole system.
The latent tradeoffs in this integrated system can only be appreciated
by expanding the frame to look. This Article’s purpose has been to scaffold
a new infrastructure to capture those tradeoffs in the first place. From this
new starting position, future thinking might move in any number of
325 See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1227(a)(1)(A)–(B) (2012).
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directions. In what follows, we offer some preliminary thoughts to advance
those projects, all of which are related.
First, the possibility of doctrinal spillovers means that immigration
exceptionalism will almost certainly require normative tradeoffs. Theorists
and advocates should account for this prior to backing exceptional
arrangements or doctrines. Immigration constitutional doctrine tends to be
sticky—in ways often unfavorable to immigrant interests and difficult to
undo.326
A nagging question is how to account for the political and doctrinal
dynamics of immigration exceptionalism. On the issue of constitutional
rights, scholars heavily discount the federal government’s ability to self-
regulate its mostly unchecked plenary power. And for good reason:
throughout history, the federal government has demonstrated its propensity
to use its immigration power in disquieting, if not abhorrent ways. Yet the
calculation appears remarkably different when the conversation turns to
federalism and separation of powers. As to these structural arrangements,
some scholars put significant faith (or perhaps hope) in the federal
government’s capacity or incentive to self-regulate its broad power. For
now, we pass no judgment on these tactics and strategies. However, we
emphasize that if consequences matter, then appreciation for the doctrinal
and political dynamics limned in this Article is essential to any fair
calculation. If nothing else, the doctrinal and political dynamics attending
immigration exceptionalism counsel for pragmatic skepticism about
whether and how to summon immigration’s special qualities. Doctrines that
may look good under certain conditions may be dubious in other political
contexts.
Second, the tradeoffs inhering in an integrated regime of
exceptionalism may be adjustable and contingent, depending on how
exceptionalism’s root system of supporting rationales is tapped. Though
empirically untested, we hypothesize that the likelihood of doctrinal
spillovers into adjacent doctrinal contexts may increase as the breadth of
the exceptionalism rationale expands. Conversely, as the rationale for or
against exceptionalism contracts, the likelihood of doctrinal spillovers may
correspondingly abate. If so, scholars and advocates seeking to vindicate
justice and opportunity for immigrants might try to leverage this insight
when pressing for the right mix of doctrinal spillovers.
326 Cf. Victor C. Romero, Devolution and Discrimination, 58 N.Y.U. ANN. AM. L. 377, 378 (2002)
(“Despite calls among many to dismantle it, Congress’s plenary power over immigration, and the
Executive’s concomitant authority to enforce it, are likely here to stay . . . .” (footnote omitted)). See
generally Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change
in a Common Law System, 86 IOWA L. REV. 601, 605 (2001) (“[C]ourts’ early resolutions of legal
issues can become locked-in and resistant to change.”).
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Third, scholars and advocates may also consider ways to theorize
around the conventional rationales of immigration exceptionalism. If so,
then perhaps the doctrinal dynamics treated here can be replaced or
complemented with others. Cox and Rodríguez’s “two-principals” model of
congressional–executive policymaking may be an example or attempt at
this.327 Essentially, by grounding their arguments in the structure of the INA
and its vast delegations (including “de facto delegation”),328 they attempt to
distance their two-principals model from more conventional exceptionalism
rationales.
However, even assuming that Cox and Rodríguez’s approach frees
initiatives like DAPA/DACA from exceptionalism’s grip, the sorts of
cross-dimensional questions showcased here would still persist. For
instance, how would (or should) their dynamic separation of powers model
interface with Rodríguez’s functional model of immigration federalism?
On the one hand, their separation of powers account puts a premium on
energized and efficient executive power. On the other hand, Rodríguez’s
federalism model contemplates a more robust state role in immigration,
including a relaxed federal preemption doctrine.329 Considered together, do
nonbinding enforcement policies have preemptive effect if states try to
resist? Those types of bundled questions will still need answers, even when
attempting to escape the trappings of exceptionalism.
Fourth, theorists, advocates, and jurists might work to develop a
coherent and workable theory of immigration exceptionalism. When they
do, the parameters and limitations developed in this Article will serve as
important benchmarks. For jurists, in particular, working toward doctrinal
coherence may be especially important. That is not to suggest that
immigration exceptionalism must be an all-or-nothing proposition. But the
lack of judicial reasons for the extant patchwork of mainstream and
exceptional doctrines is, itself, an undertheorized phenomenon that courts
may be best positioned to fix.
At the same time, however, jurists, advocates, and theorists might
consider whether coherence is even worth the candle. All else equal,
doctrinal coherence is generally something our system prizes. But, in
immigration, coherence can entail very different things. For instance, it can
mean coherence between immigration and the rest of constitutional law.
327 See Cox & Rodríguez, Redux, supra note 158, at 159–73.
328 See id. at 130–35.
329 See Rodríguez, supra note 194, at 573 (“[T]he functional account I provide, in addition to
undermining the article of faith that state and local immigration regulation is constitutionally
preempted, should occasion some shifts in the doctrine governing statutory preemption, primarily by
leading courts to assess potential conflicts between federal and state law without giving extra weight to
an overriding national interest in immigration regulation.”).
N O R T H W E S T E R N U N I V E R S I T Y L A W R E V I E W
654
Alternatively, coherence might entail consistency within immigration
(which might entail across-the-board exceptionalism or normalization). As
long as consequences matter, coherence—at either level—may be a value
worth considering, but only among other values.
Fifth, the foregoing triggers an overarching question of whether the
immigration system, as a whole, would be better off moving toward
exceptionalism or normalization. Future studies—empirical or
theoretical—might pursue which of these poles is preferable.
Finally, a perennial debate in immigration scholarship is whether
historic strands of immigration exceptionalism are dead or alive.330 Most
commonly, these diagnostic treatments focus on the plenary power doctrine
and the related exclusivity principle. Looking ahead, however, more
attention should be paid to whether new forms of immigration
exceptionalism are being born. Should the immigration system embrace
new forms of exceptionalism? If so, which ones? Why some but not others?
This Article’s core insights are directed at precisely these sorts of
issues. Emerging or new forms of immigration exceptionalism can have
any number of effects on the system as a whole. As explained and
illustrated throughout this Article, any form of exceptionalism might reify
rights exceptionalism—depending in part on underlying rationales. On the
other hand, new forms of exceptionalism might offset or compensate for
other forms of exceptionalism, both old and new.
CONCLUSION
Immigration exceptionalism has been, and will continue to be, a
centerpiece of immigration law and theory. Thus far, however, most
treatments of immigration exceptionalism have approached the concept in
disjointed and disaggregated ways. This Article’s key insight is that the
immigration system simply does not work that way. Scholars, advocates,
and jurists have a choice between context-specific approaches to
immigration exceptionalism on the one hand, and holistic treatments on the
other. This Article advances a positive case for the latter, and with it, a new
foundation on which to build.
330 See supra notes 117–19, 155–57, 182–84 and accompanying text.
Copyright of Northwestern University Law Review is the property of Northwestern
University School of Law and its content may not be copied or emailed to multiple sites or
posted to a listserv without the copyright holder’s express written permission. However, users
may print, download, or email articles for individual use.
Published with Creative Commons licence: Attribution–Noncommercial–No Derivatives
Academia’s moral entanglements in the face of
a racist regime
Sarah Moser
McGill University
sarah.moser@mcgill.ca
Michael Hendricks
McGill University
michael.hendricks@mcgill.ca
Luna Vives
Université de Montréal
luna.vives@umontreal.ca
Keywords
Travel Ban, Migration, Academics, Borders, Trump
Academia’s moral entanglements in the face of a racist regime
176
Introduction
Many academic societies with large, international memberships are based in
the United States and host annual meetings that are focal points for their respective
fields. Changing rules and norms with respect to border control threaten to impact
large groups of scholars, many of them trainees, who will be effectively prevented
from full participation in their field and their scholarly community. Here, we call
on scholarly societies to defend the interests of all of their members and to ensure
that their events and operations do not reproduce or reinforce discriminatory
policies of the U.S. government.
Donald Trump’s January 2017 executive order banned all citizens of seven
Muslim-majority countries (Syria, Iran, Libya, Somalia, Yemen, Sudan, and Iraq,
which was subsequently removed in the revised ban) from entering the United
States. Hyperbolically called “Executive Order Protecting the Nation from Foreign
Terrorist Entry into the United States,” it was the first line of an attack orchestrated
by the Trump administration on racialized migrants, asylum seekers, and refugees.
More commonly referred to as “the travel ban”, the order was hastily designed and
implemented, with flaws that led to uneven and inconsistent application largely left
up to the discretion of local Customs and Border Protection (CBP) officers. When
the travel ban was active, a number of Canadian passport holders, some of whom
were born in Canada, were denied entry with no explanation (Banerjee 2017;
Montpetit 2017; Lowrie 2017; Rukavina 2017). These included a teenager traveling
with his team for a sports competition and various people visiting family and doing
cross-border shopping.
Additional changes to policy (both implemented and proposed by the
current administration) aim to seal the land border between the U.S. and Mexico,
dramatically increase immigrant detention, limit the presence of immigrants from
racialized groups in the country (both aspiring to settle in the U.S. as well as legal
permanent residents), deport those residing in U.S. territory without a proper visa,
and put the processing of refugee applications on hold indefinitely (Cook 2017;
Cruz-Torres 2017; Hiemstra 2016 and 2017). The executive order and related
measures are illegal (American Civil Liberties Union 2017) and constitute a
violation of international commitments assumed by the U.S. (such as the Geneva
Convention). By disproportionately targeting nationals of Arab and Latin American
countries, the order also has an unquestionable racist intent.
Moreover, there is a remarkable incongruence between the countries
targeted in the ban and those whose nationals have been involved in previous
terrorist attacks on U.S. soil, or which are known to be currently a source of
jihadist terrorism (Neier 2017). This begs the question of whether the travel ban is
misinformed, misguided, or supports a larger white supremacist agenda – or all of
the above.
ACME: An International Journal for Critical Geographies, 2017, 16(2): 175-184 177
Impeding academia, one travel ban at a time
The impact of these anti-immigration measures has been felt far and wide.
Vulnerable migrants continue to be affected by these policies and decades of
similar anti-immigration policies supported by previous administrations: Latino
mothers crossing the southern border with their children, who will likely be
separated and detained upon arrival, with parents charged with human smuggling
(Gordon 2017, Hiemstra 2016 and 2017); and refugees fleeing war, whose
selection process will be protracted and perhaps never completed (Harvard
Immigration and Refugee Clinical Program 2017). Those racialized and vulnerable
migrants were the original target of the executive order and the associated anti-
immigration measures that followed Trump’s inauguration. Due to its flaws and
lacking clarity, the “travel ban” has also affected people who clearly do not fall
under its scope, such as Canadian-born citizens who have been barred from entry
based on presumed religious affiliation. The nature of the ban and the rhetoric
leading up to it, combined with the wide latitude and lack of accountability enjoyed
by CBP officers, have legitimized already widespread racial profiling at the border,
and created an arbitrary mechanism for excluding individuals based not on
nationality but on ethnic and religious judgements made on the spot.
Academics could be considered a fairly privileged bunch in the current
global context of international human mobility: travel is not only expected, but
encouraged for the purposes of both data collection and knowledge dissemination.
Doing international fieldwork and attending international conferences is the bread
and butter of our profession. The relative privileges scholars enjoy mask the great
diversity of the international academic class, which includes tenured professors as
well as poorly salaried temporary teaching staff and students, and of course
scholars from different racial and religious backgrounds from all over the world.
The “travel ban” has sent shockwaves throughout this high-flying tribe of ours.
Academics from the listed countries who reside in the United States, no
matter their status (green card holders, those on work visas, or others), have had to
put all personal and professional travel outside the country on hold for fear of being
refused entry upon returning. Researchers in this group who were outside the
country when the executive order was passed found themselves stranded overseas –
unable to return to their offices, their homes, and their families (Redden 2017).
Moreover, while previous attempts to implement the ban were deemed illegal, on
June 26, 2017 the Supreme Court partially reinstated it, effectively barring most
travellers from the six Muslim majority countries included in the original order
from travelling to the U.S. (Shear and Liptak 2017). Scholars who are passport
holders from the blacklisted countries face insecurity about being banned suddenly
in the future with no recourse.
The implications of this far-reaching travel ban were clear at a number of
conferences held in the U.S. in early 2017, where an unknown number of
researchers decided to cancel their travel plans out of fear of being turned away at
Academia’s moral entanglements in the face of a racist regime
178
the border. The “travel ban” prompted others to reconsider their professional
commitments more broadly. The uncertainty and chaos caused by capricious
executive orders means that many people from countries beyond the six or seven
listed have increasingly been turned away at the border by CBP officers with no
explanation, and there is reason to fear that this will continue. For example, an MIT
professor originally from Niger scheduled to present his work at McGill University
in Montreal soon after the executive order was announced cancelled his trip due to
the uncertainty posed, despite not being from a listed country. Many geographers
decided not to attend this year’s American Association of Geographers (AAG)
conference not only out of solidarity with targeted scholars, but also out of
uncertainty about their or their trainees’ chances to successfully cross the border.
Geographers have documented the emergence of a new global border
regime and how it targets racialized migrants and those from Muslim countries
disproportionately (Burridge et al 2016, Dünnwald 2011, Johnson et al 2011,
Kaytaz 2016, Mainwaring and Brigden 2016, Minca and Rijke 2016, van Houtum
2010, Walters 2016, among others). However, anti-immigration policies as
impulsive, sweeping, inconsistent, and racially charged as Trump’s executive
orders are new terrain for residents of and visitors to the United States.
Perhaps more than other disciplines, critical geographers are uniquely
positioned to contribute to conversations advancing ideas about space, borders,
geographies of exclusion, bodies, and justice, among others, and to tease out the
implications of Trump’s anti-immigration efforts. As members of the international
academic community, we feel compelled to bring attention to the consequences
that these policy decisions have had and will continue to have on the future of
scientific knowledge. And, as members of the AAG and professionals whose work
is primarily funded through taxpayer money, we are outraged at finding ourselves
in a position in which we are compelled to choose between either not attending
conferences or leaving racialized students and colleagues behind, despite the
impact that will have on their careers.
Roles and responsibilities of professional societies
American academic institutions, associations, and conference organizers
have responded in a variety of ways that reflect the confusion surrounding the
executive order and the ethical questions it raises. Some scholarly societies have
made no statement at all on the executive order to date, while others have made
general statements promoting diversity, inclusion, and the international nature of
academic research. At the Society for Neuroscience (SfN) annual meeting held in
November 2016, a week after Trump was elected, one of the authors attended an
advocacy event where the audience was advised “not to get caught up in partisan
politics,” with the implication that it may jeopardize national research funding
under a new administration that has already proven itself to embrace pseudoscience
and science denialism.
ACME: An International Journal for Critical Geographies, 2017, 16(2): 175-184 179
The AAG’s initial response to the ban was, to some, inappropriately
lukewarm, given the gravity of the situation. In a public letter, the association’s
president argued that the discipline has a central role as a “fountainhead of
actionable and policy relevant knowledge” and that “[i]t is critical that the United
States continues to welcome geographers and others of all backgrounds and
nationalities” (MacDonald 2017). But the association failed to follow through with
actions to support this statement. The AAG’s commitment to materially assist
registrants for their annual conference in April who were affected by the executive
order was minimal, despite claims that they are “supporting” their members (AAG
Staff 2017). In response to the ban, or “travel restrictions” as the AAG calls it, the
organization’s leadership initially stated that it would fully reimburse without
penalty only conference attendees who are passport holders of the seven listed
countries, and only if they were based outside of the United States. This meant that
a boycott in solidarity by passport holders of the seven listed countries based at US
institutions would not be supported, nor would a boycott by any others. The AAG
offered to provide registrants from the seven countries with the option of
presenting via teleconference or through a surrogate presenter so they could remain
in the conference program. After the circulation of an online petition and over six
weeks of outcry among members, the AAG leadership agreed to reimburse without
penalty those affected on a case-by-case basis.
In contrast to the AAG, the International Studies Association (ISA) issued a
stronger statement within just a few days, also in response to criticism of their
bland initial response by their membership, stating that they would fully refund
registration fees and waive withdrawal penalties for their upcoming annual
conference to those “personally and morally affected” (Tweet from Jen Fontanella,
Director of Operations, January 31, 2017: https://twitter.com/isanet/status/
826510850131447808). The ISA also issued a statement that “scholars negatively
affected by this executive order are strongly encouraged to contact the committee
through its dedicated email address.” This response better reflects the vast network
of people affected by the ban, far beyond just nationals of the seven listed
countries.
An independent petition, signed by over 43,000 academics to date
(https://notoimmigrationban.com/ as of June 29, 2017) was less circumspect than
most society statements on these issues, declaring the executive order overtly
discriminatory. Other direct actions and statements from academics, such as the
March for Science or ACME’s first AAG annual protest (unequivocally named
“Geographers against Trump”), directly challenge the fascist and anti-intellectual
characteristics of the current administration in a way that our institutions –
universities and professional societies – are not.
Part of the reason that scholarly societies such as SfN and the AAG are
unable to respond more effectively to such executive orders and to Trump in
general is that they are financially dependent on large annual meetings or have
relinquished control of these conferences to event management companies. The
Academia’s moral entanglements in the face of a racist regime
180
question then becomes whether scholarly societies exist primarily to serve the
organizational interests of the societies themselves or the interests and values of a
diverse and international membership.
Professors who wish to bring their Muslim (or “Muslim-looking” or
otherwise deemed suspicious to a border agent emboldened by Trump rhetoric)
trainees to the United States to attend conferences and other training opportunities
are now faced with a dilemma. If they attempt to bring these students to
conferences, the students risk being denied entry and the stress of racially-
motivated harassment and questioning. The current language of grant bodies’
reimbursement policies is clear: funds spent on registration fees, hotels, and
transportation cannot be reimbursed if participation is cancelled. It is doubtful that
airlines and hotels would refund students in this position, and as noted above it is
unclear if conference organizers would reimburse registration fees. Groups
travelling together might all have to choose between turning back or stranding one
person at the border. One of the authors was faced with this prospect when she
realized that carpooling with her graduate students, one of whom is Yemeni-
Indonesian, from Montreal to the AAG in Boston put the entire group at risk. These
concerns can compel students (or their advisors) to avoid the financial risk of
attending U.S.-based conferences. However, this then puts professors in the
position of deciding whether to leave at-risk trainees behind while bringing other
students.
This means that, inadvertently, both professional associations such as the
AAG as well as supervisors are using public funds to effectively discriminate
against researchers based on the anticipated assessment of their national and
religious background by border agents. There may be no ill intent in these
decisions: the AAG may or may not be able to assume the financial impact of
reimbursing scholars affected by the ban, and supervisors and students alike are
simply making a rational decision in the context of existing institutional
reimbursement policies. But the result is the same. Segregation and allocation of
federal grant money based on race or religion is both deeply unfair and raises
serious ethical and legal concerns regarding the use of public funds. More explicit
policies are required to guide fair decision-making about funding and make explicit
what the shared responsibilities are when spending tax-payer-funded grants.
Universities and scholarly societies are accustomed to interacting with the
government based on a set of norms respecting the central role and value of higher
education, academic research, and the free movement of ideas and people in the
context of the global research and academic ecosystem1. The sooner we realize that
1 While a Trump presidency poses new challenges, we acknowledge that there are on-going and
systemic inequalities and obstacles for many in the scholarly community, particularly
undocumented students, a situation that illustrates that despite the novelty and chaos of the travel
ban, many experience a high degree of continuity across administrations (Muñoz and Espino 2017;
Person and Gutierrez Keeton 2017).
ACME: An International Journal for Critical Geographies, 2017, 16(2): 175-184 181
those norms no longer hold, the more effective our organizations will be in truly
promoting the public good in the long term.
Complexities and entanglements: Moving forward
We write this brief piece to spark a dialogue and in the hopes that
professional associations and granting agencies will recognize the complexities and
entanglements of scholars in the context of increasingly globalized higher
education, and the unprecedented and dangerous circumstances presented by the
Trump administration. We hope that members of professional associations will
demand and help to develop nuanced policies that truly protect and are sensitive to
the needs of their domestic and international members. Moving forward, each
professional association should hold sessions at annual meetings to discuss and
refine their stance and future responses regarding the new political reality and how
best to support members. It is not enough for scholarly societies to issue well-
meaning but vague statements in support of their members and their general
commitment to diversity; specific policies need to be clearly articulated, codified,
and enforced to make clear what is acceptable. For example, the California
Assembly Bill 1887, which became effective on January 1, 2017, officially
prohibits the use of state funds to travel to states with discriminatory laws.2 Other
countries, provinces, and states have similar laws and funding bodies and
professional societies need to be not only in closer alignment with these, but play a
more active leadership role in crafting and supporting them.
The prominence of U.S.-based scholarly societies and the role their annual
meetings play in many disciplines complicate outright boycotts or funding
restrictions on U.S. travel. However, the fact that these organizations are central to
their fields depends to a significant extent on having a lot of international, dues-
paying members. American scholarly societies should consider hosting annual
meetings outside the U.S. at least some of the time. For example, the Society for
Neuroscience has held its annual meeting in Toronto twice, though not in recent
years.
While this article was being revised, the U.S. Supreme Court issued a ruling
that upheld some provisions of the travel ban while also imposing limits on its
enforcement. These limits include exempting those with a valid work, study, or
residency status in the U.S., which should mitigate some of the risk for those
currently in the U.S. when trying to re-enter after travelling abroad. That said, the
Court’s ruling is unlikely to clarify or harmonize how the ban is enforced by
individual border agents empowered to act at their own discretion and with little or
no accountability. This fuzzy enforcement means that, for the foreseeable future,
2 The travel restrictions originally applied to Kansas, Mississippi, and North Carolina, and Alabama,
Kentucky, South Dakota, and Texas have subsequently been added.
Academia’s moral entanglements in the face of a racist regime
182
those who are similar in terms of religious, ethnic, or regional origin to those
explicitly targeted by the ban are at risk when travelling to the United States.
The scholarly community needs to closely examine their ethical
responsibilities in supporting and advocating for their members, and for science
more broadly, and the varied ways in which Trump’s presidency affects us all.
Channels of communication between members and leadership of professional
societies should be open and should better represent graduate students, junior
faculty, minorities, and others most vulnerable to exclusionary policies such as the
travel ban. While Twitter and online petitions have shown efficacy in prompting
change within professional society leadership, ideally expanded representation of
the membership in decision-making will stem the need for such tactics. Finally, we
must ensure that our societies advocate for their academic mission and the long
term priorities of their membership and not just short-term organizational self-
interest.
Acknowledgments
The authors would like to thank the editor and two anonymous reviewers
for their constructive feedback on this paper. We would also like to thank Alyssa
Shamsa Wilbur, Laurence Côté-Roy, and Isabelle Simpson for their valuable input
during many stimulating discussions about issues covered in and related to this
paper.
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Copyright of ACME: An International E-Journal for Critical Geographies is the property of
Centre for Social, Spatial & Economic Justice and its content may not be copied or emailed to
multiple sites or posted to a listserv without the copyright holder’s express written permission.
However, users may print, download, or email articles for individual use.
70
On the evening on February 22, 2017, peo-ple disembarking Delta flight 1583 from
San Francisco International Airport to John F.
Kennedy International Airport in Queens, New
York, were met at the plane door by US Cus-
toms and Border Protection (CBP) officers, who
required the passengers to show their identifi-
cation before being allowed down the jetway.
This was strange: It was a domestic flight, and
JFK is more than 250 air miles from the nearest
international border crossing. Some passengers
tweeted about the encounter, and their posts
were quickly absorbed into the waves of fear
that had been breaking for weeks. In late Janu-
ary, Donald J. Trump had consummated his new
presidency by signing several executive orders
on immigration and border security, including
his embattled so-called “Muslim travel ban”;
on February 17, the Department of Homeland
Security (DHS) produced two memos calling for
a massive hiring push, broadening deportation
criteria, and laying out plans to empower local
law enforcement to help with immigration-re-
lated arrests. To many nervous observers, the
treatment of Americans on flight 1583 seemed
like a harbinger of darker troubles to come.
“Welcome to Germany circa 1943,” one espe-
cially gloomy Twitter user replied to a passen-
ger’s post. “And it’s just getting started.”
Later, a CBP statement said the agents were
helping Immigration and Customs Enforcement
look for a man who was facing deportation for
incurring a number of criminal charges. (He
wasn’t on the flight.) While it wasn’t the immi-
gration ambush some people feared, it was easy
enough to speculate about Immigration and Cus-
toms Enforcement and CBP feeling emboldened
by the white nationalist authoritarianism of the
West Wing’s new occupants. But federal immi-
gration agents questioning American citizens
making no attempt to enter or leave the coun-
try, while unnerving and of dubious legality, is
R E P O R T I N G
Over
the Line
Border Patrol’s Obscure,
Omnipresent 100-Mile-Zone
Rachael Maddux
R A C H A E L M A D D U X 71I l l u s t ra t i o n by J O H N R I T T E R
hardly a sui generis phenomenon of Trump’s
America. Since the 1950s, Queens—along with
most of New York state—has been within what’s
now commonly called “the 100-mile-zone,” a
massive swath of the United States in which
Customs and Border Protection in general and
Border Patrol agents in particular are empow-
ered by federal law and Supreme Court prece-
dent to operate far beyond the bounds of typical
law enforcement.
The origins of the zone are stunningly inci-
dental. They lay deep within the Immigration
and Nationality Act of 1952, which sought to
buttress US immigration and citizenship reg-
ulations in the skittish early years of the Cold
War. Section 287 of the act grants “any officer
or employee of the Service”—the Immigration
and Naturalization Service, Border Patrol’s par-
ent agency at the time—the ability to, “within a
reasonable distance from any external boundary
72 V Q R | F A L L 2 0 1 7
undocumented or brown or black in the United
States. But even those who do know about the
zone know very little about what CBP does
there. That’s because no one does, not fully, not
even the agencies themselves.
What is supposed to happen within the zone
is known. In the name of immigration enforce-
ment, Border Patrol agents are allowed to oper-
ate permanent and temporary checkpoints and
roving patrols, in vehicles or on foot. At these
stops, they should perform brief, unobtrusive
searches to determine citizenship status: a few
quick questions and a visual inspection of a
vehicle’s exterior. Agents don’t need warrants
to conduct these stops, but they do need rea-
sonable suspicion to stop anyone outside a set
checkpoint, and they’re supposed to have prob-
able cause—like an alert from a drug-sniffing
dog—before searching the inside of a vehicle.
If an agent encounters someone who’s unable
to provide their immigration status, they may
take the person into custody. Otherwise, once
an agent establishes that a pedestrian or a driver
or a carful of people are legally authorized to
be in the US, they’re supposed to send them on
their way.
In 2016, Border Patrol agents apprehended
415,816 people via checkpoints and roving
patrols nationwide. But how those interac-
tions proceeded, and the number and nature
of interactions that ended in anything other
than arrest, isn’t known. CBP is the largest law
enforcement agency in the United States, but it
bucks many federally recommended best prac-
tices for law enforcement, including the one
that might illuminate or absolve so many other
indiscretions: data collection. At checkpoints
and on roving patrols, Border Patrol agents only
record the searches that end in apprehension.
They do not record the total number of cars
that pass through their checkpoints, how many
individuals they stop and question and release,
how often their dogs alert to nonexistent con-
traband—nothing other than apprehensions.
The agency has resisted the use of body cameras
and dashboard cameras increasingly adopted by
local law enforcement across the country. So
aside from arrest numbers, which are irregularly
published online, there is no reliable public or
of the United States…board and search for
aliens any vessel within the territorial waters of
the United States and any railway car, aircraft,
conveyance, or vehicle…for the purpose of
patrolling the border to prevent the illegal entry
of aliens into the United States.”
At the time, “a reasonable distance” was
defined as being twenty-five miles from not
just US borders with Canada and Mexico, but
also every bit of coastline; in 1953, federal reg-
ulations expanded it—suddenly, with no input
from the public, and with little explanation—
to 100 miles. A 1973 Supreme Court decision,
Almeida-Sanchez v. United States, held that Bor-
der Patrol agents must have probable cause to
search a vehicle in the absence of a warrant.
And in 1976, the Supreme Court’s decision on
United States v. Martinez-Fuerte affirmed Bor-
der Patrol’s practice of running permanent and
temporary checkpoints within the 100-mile-
zone, as well as the agency’s right to briefly
question a vehicle’s occupants “in the absence
of any individualized suspicion that the partic-
ular vehicle contains illegal aliens.” In 2003,
Immigration and Naturalization Service was
disbanded and divvied up among several other
agencies under the newly formed Department
of Homeland Security aegis, with Customs and
Border Protection inheriting Border Patrol and
its sprawling jurisdiction.
The 100-mile-zone touches thirty-seven
states (enveloping fourteen of them, some
almost entirely), plus Washington, DC, and
includes nine of the country’s ten largest metro-
politan areas. The zone covers two-thirds of the
US population, about 200 million people. They
live along the Rio Grande and Lake Ontario—
within spitting distance of Mexico and Can-
ada—and in decidedly un-borderlike places such
as Redding, California, Columbus, Ohio, and
Columbia, South Carolina. Many more travel
through the 100-mile-zone every day. They go
to work and to school and to the store. They visit
family, they see doctors, they go to the beach
and to baseball games. Some just drive and drive
and drive, oblivious, relishing the freedom they
believe they’ve been granted as American cit-
izens. Others tread more carefully, attuned to
the ever-present risks of being an immigrant or
R A C H A E L M A D D U X 73
“People tend to think about the border as this
‘other’—this different place where special rules
can apply without any negative consequences
to the rest of the country, but that’s not true,”
said Mitra Ebadolahi, a staff attorney with the
ACLU of San Diego and Imperial Counties’ Bor-
der Litigation Project. “Most people do live on
the border, they just don’t realize it. But even
if you don’t live on the border, you should care
about the erosion of our constitutional rights,
because there’s no guarantee that if that erosion
is established as the norm there, it won’t also
eventually be established as the norm in the
smack dab middle of the United States.”
I live in Atlanta, the only one of the top-ten
most populous metropolitan areas in the US
that doesn’t sit within the 100-mile-zone. I first
learned of the zone in September 2015, when
my husband, Joe, and I were traveling in West
Texas. After a few days in Big Bend National
Park, we pointed our rental car north toward
Marfa. We drove up Highway 118, marveling at
the otherworldliness of the Chihuahuan Desert,
endless miles of scrubby creosote and mesquite
interrupted here and there by the tall, spent
blooms of a century plant, all other humans
obscured by distance or glare or dust. We were
almost to Alpine, ninety miles north of the Rio
Grande, when we saw the first sign for a Border
Patrol checkpoint. Gradually the building itself
materialized on the horizon, a long green-and-
white box under a high pavilion roof, as jarring
as the sight of a fast-food restaurant on Mars.
I double-checked Google Maps to make sure
we hadn’t gone south by mistake. We hadn’t.
The next sign said all vehicles stop ahead
when flashing. The lights were flashing, so
we stopped.
Joe pulled into the checkpoint behind a
pickup truck with a rusty horse trailer. We
waited, watching a Border Patrol agent in an
olive green uniform lead a Belgian Malinois in
a black vest around the vehicle and its load. The
trailer’s latch was loose, and the agent directed
the truck’s driver off to one side of the driveway
to fix it. Then it was our turn.
The car rolled forward and an agent in sun-
glasses appeared at Joe’s window. He asked
even private record of who Border Patrol agents
interact with, the nature of those interactions,
when they take place, or where, or why. The
border is a black box, unknown even to itself.
In the 1950s, when the 100-mile-zone was
established, and on into the 1970s, when the
zone’s legality was upheld and expanded in court,
Border Patrol employed fewer than 2,000 agents.
By 1992, the number of agents was edging over
4,000. In 2002, there were more than 10,000,
and in 2012 there were more than 21,000. The
number has flatlined over the last few years as
CBP has struggled to meet hiring quotas. But
in early 2017, President Trump ordered the hir-
ing of 15,000 more DHS agents, with 5,000 of
those for Border Patrol alone. In July, the DHS
inspector general issued a report questioning
both the need for the hiring push and the agen-
cy’s abilities to carry it out. But if hired, those
agents will join the ranks now staffing thirty-five
permanent checkpoints, an unknown number
of temporary checkpoints, and an ever-shifting
number of roving patrols nationwide. And so the
black box grows and grows.
That any meaningful information about Bor-
der Patrol activity within the 100-mile-zone is
available to the public at all can be attributed
almost entirely to non-governmental organiza-
tions—primarily the ACLU—and community
groups and individual citizens across the polit-
ical spectrum working to observe, document,
and litigate their way toward greater clarity. And
as numerous reports and lawsuits and shaky cell-
phone videos suggest, CBP’s vast jurisdiction,
resistance to oversight, and rapid growth is a
toxic brew, resulting in widespread violations
of civil rights, human rights, economic damage,
psychological distress, injury, and death, within
the 100-mile-zone and beyond.
Judicial and legislative solutions exist, from a
reconsideration of the outdated Supreme Court
precedents that enabled sweeping Border Patrol
activity in the zone, to a reduction of the “rea-
sonable distance” back to its original twenty-five
miles (or less). But reforms have been histori-
cally stymied by insufficient political will and
further hindered by the public’s profound lack
of awareness of the zone’s existence, purpose,
shadowy nature, and peoples’ rights within it.
74 V Q R | F A L L 2 0 1 7
any drugs in the vehicle? No. The agents lis-
tened as if humoring our delusions, then asked
the questions again. Our innocence became
like a shape we were trying to point out in a
bank of fast-moving clouds. The agents weren’t
seeing it.
“Look, if you have anything, you might as
well tell us now,” one agent finally said, like he
was doing us a favor. “Because if you say you
don’t have anything and then we search the car
and we find something, that’s gonna be trouble
for you.” I remembered the three prescription
medications in our luggage, each entirely legal
and in its original, physician-authorized, Pub-
lix-filled bottle. I mentioned them to the agent
in what I thought of as a goodwill offering. Why
would I be so helpful if I had anything to hide?
The dog was summoned again. Joe and I sat
and watched the dog follow an agent around
the car, sniffing here and there, jumping up and
thumping its big paws down on the hood. The
agent opened one of the car’s side doors and the
dog hopped inside and bounded around from seat
to seat. I watched the animal for a sign, though
what that sign would be and what it would mean
I had no idea. “The dog’s alerted to something
in the vehicle,” another agent said after a while.
“We’re going to search your luggage.”
They popped the trunk and dragged our suit-
cases and backpacks out onto the concrete. One
agent arranged the luggage into an oddly tidy
row and the other led the dog along the line,
smacking each bag in turn as the dog lowered
its head to sniff.
I began to wonder if the agents knew some-
thing we didn’t. I thought about how Joe and
I must have looked to them, scanning for any-
thing that would trigger their suspicion: Our
us questions and we answered. Were we US
citizens? Yes. Where were we coming from?
Big Bend. Where were we going? Marfa, then
Alpine for the night, then home. Was this our
car? No, it’s a rental, we’re from out of town. “Do
you need to see our passports?” I asked, pulling
them from my bag. The agent shook his head
and stepped away. We sat in silence—the easy
silence of two young white Americans having
just entered into yet another interaction with
law enforcement they had no reason to think
wouldn’t work out in their favor. The dog snuf-
fled around the car, just out of view.
When the agent returned, we expected him
to say that we were free to go. Instead he told us
to pull off to the side, behind the pickup truck, so
we did. The truck’s driver was still fiddling with
the trailer latch and I figured we were keeping
our place in line. I imagined some goofy federal
statute regulating the order in which cars must
enter and leave a Border Patrol checkpoint.
After the pickup rumbled away, the agent reap-
peared at Joe’s window.
“The dog’s alerted to something in your
vehicle,” he said. “We’re going to search the
car again. If the dog alerts a second time, we’ll
need to search your luggage.” Joe turned off the
car and we got out. He handed the keys to the
agent, who steered us toward a metal bench
bolted into a concrete slab next to the check-
point office. “Sit,” the agent said, so we sat.
“Keep your hands out of your pockets.” Another
agent appeared, demanded Joe’s driver’s license,
and read the number to someone over a radio.
More questions: Did we have any narcotics or
recreational drugs or controlled substances in
the vehicle? No. Had we used any drugs while
inside the vehicle? No. Had anyone else used
Aside from arrest numbers, which are irregularly published online, there is
no reliable public or even private record of who Border Patrol agents interact with,
the nature of those interactions, when they take place, or where, or why.
The border is a black box, unknown even to itself.
R A C H A E L M A D D U X 75
We stood up and walked the twenty feet to
the car. My legs were shaking. Did I smile at
the agents as we passed? Probably. I expected to
feel relief. I didn’t. I realized I was waiting for
an apology, then realized we weren’t going to get
one. In the car, Joe turned the ignition and the
digital clock reappeared on the dash. I thought
we’d been on the bench for hours. Barely thirty
minutes had passed.
In October 2015, the ACLU of Arizona pub-
lished a report that might as well have been
called “Here’s Why You Can’t Find Any Satis-
fying Numbers About Border Patrol Activity
Within the 100-Mile-Zone,” an explanation I’d
been craving in the weeks since our search. I
wanted to see us as a statistic, to know how
many other people had sat through their own
surreal half-hour on a bolted-down bench, their
fate in the hands of a dog and a man with a gun
on his hip. I wanted to know if what happened
to us was just a fluke or de riguer, and how
often the same story had another ending. The
report, actually titled, “Record of Abuse: Law-
lessness and Impunity in Border Patrol’s Inte-
rior Enforcement Operations,” offered its own
kind of answers. It analyzed 142 civil rights
complaints filed against Border Patrol’s Yuma
and Tucson sectors between 2011 and 2014,
laying bare the agency’s shoddy data collection
practices and seeming disregard for not just
the law but basic human decency. An appendix
summarized the complaints, which ranged from
the eerily familiar (“A man and his wife were
detained and interrogated about drug use fol-
lowing a false canine alert”) to the harrowing:
A woman was pulled over by Border Patrol on
Highway 95 by an agent who approached with
his weapon drawn. He told her to roll down the
back window. The woman said her infant was
in the backseat. The agent said, “I don’t give a
fuck who is in the backseat. Lower the window.”
One hundred and forty-two—that’s not the
total number of complaints the CBP received
about the Yuma and Tucson sectors, only the
number the agency decided to document. Other
complaints surely went undocumented, and still
others were never lodged at all, either because
the individuals were afraid to complain, or they
blank smiles, the Louisiana plates on our rental
car, the Georgia peaches on our licenses. Joe’s
beard, my dark hair. Was it that we were young-
ish white people driving toward Marfa, that little
mecca of weirdo artists and ergo (maybe) drugs?
They must have had a reason—why would they
go to all this trouble otherwise? Maybe some-
one had slipped some contraband into one of
our bags at the airport or the Big Bend visitors’
center or the bar in Terlingua the night before.
Maybe Joe was hiding something. Maybe I was
hiding something.
Then the dog alerted them to Joe’s backpack,
or maybe not, I couldn’t tell, but soon the agent
was unzipping every last pocket, pulling out Joe’s
laptop and books and headphones until he pro-
duced the orange plastic bottle containing one
of the three prescriptions I’d already mentioned.
He held the bottle up to the sunlight, rattled it,
opened it, sniffed it, screwed the cap back on.
Then he sauntered over to the bench and looked
us up and down through his sunglasses.
“So that coulda been what the dog alerted to,”
he said. “But, you know, sometimes people do
use rental cars instead of their own to do drugs
or to transport narcotics.” He said something
about “previous renters” and “upholstery” and
“residue.” When neither of us responded, he
smirked. “What, people don’t do that up north?”
Up north? I thought of Vermont, Newfound-
land, Svalbard, then realized he meant Atlanta,
where he knew we lived because he’d seen Joe’s
license or maybe because we’d told him or maybe
he just knew. Now our failure to get the joke, or
whatever it was, seemed to reveal something.
Was this the last bit of proof he was looking for?
Was he going to drag us into the checkpoint
office, throw us into separate rooms, try to get us
to rat each other out? Would anyone believe we
were innocent if these men believed we weren’t?
Every possible future seemed preposterous, but
so did the current moment and everything that
led up to it. Joe and I sat in silence, a new kind
of silence, not quite breathing.
Then all of a sudden they were done with
us. The dog trotted off to sniff another car. The
pill-rattler stuffed the orange bottle into Joe’s
backpack, threw our bags into the trunk, tossed
Joe his license and keys. We were free to go.
76 V Q R | F A L L 2 0 1 7
are pressing through similar litigation, includ-
ing the ACLU of Michigan (where the entire
state exists within the 100-mile-zone, because
CBP counts the shoreline of the Great Lakes
as an international boundary). These hard-won
document dumps have done the most to illumi-
nate Border Patrol’s operations, but the picture
is still far from complete. And where official
record isn’t available, anecdotal reporting fills
some gaps.
“It’s really difficult to document the interac-
tions [at checkpoints] any other way,” said Pedro
Rios, director of the American Friends Service
Committee’s US–Mexico Border Program and
member of the Southern Border Communi-
ties Coalition. “First-hand testimonies of what
people have experienced are powerful, because
they represent an experience that oftentimes
can be multiplied by what other people expe-
rience.” Indeed, the details of complaints sum-
marized in the ACLU of Arizona’s “Record of
Abuse” echo the details of complaints recorded
in the ACLU of New Mexico’s 2015 report,
“Guilty Until Proven Innocent: Living In New
Mexico’s 100-Mile Zone,” in which community
members describe the harassment, discrimina-
tion, embarrassment, and fear they experience
as border zone residents. And those stories
echo even more told to me by lawyers, policy
experts, community organizers, and others over
the last two years.
Profiling is a common complaint, with skin
color and perceived ethnicity frequently deter-
mining the tone of interactions with agents. In
the ACLU of New Mexico report, a sixteen-year-
old boy describes having an easier time moving
through checkpoints with his white mother than
his Latino father. White lawyers and organizers
report witnessing Border Patrol agents harassing
Latino border community members, but getting
a free pass themselves. In Arivaca, Arizona, in
2014, a group of residents called People Helping
People set up a citizen observation station across
the highway from one of the three Border Patrol
checkpoints that surround the small town. Over
two months that winter and spring, volunteers
noted that agents asked Latino drivers for ID
twenty-six times more often than white drivers.
In the early 2000s, Border Patrol established
weren’t sure how, or they didn’t think that what
happened to them was even worth mentioning.
For the complaints that were lodged, documen-
tation was the first and only step. Several over-
sight groups exist within the DHS and CBP, each
with its own low-level powers of recourse, but
“Record of Abuse” indicates a considerable dis-
parity between the number of complaints they
received and the number of complaints they
reported. For instance, the Yuma and Tucson
sectors received at least eighty-one complaints
of Fourth Amendment violations in 2012–13, a
period when DHS internal oversight agencies
reported only three Fourth Amendment–related
complaints made against sectors nationwide. Of
all the complaints detailed in the ACLU report,
only one seems to have resulted in disciplinary
action. The complaint regarded an unlawful
vehicle stop, and the offending agent was sus-
pended for one day. “In that case,” the report
said, “the complainant was alleged to be a gov-
ernment employee and the son of a Border
Patrol agent.”
According to some CBP agent training
materials analyzed in “Record of Abuse,” Bor-
der Patrol agents are instructed to respond to
press inquiries about checkpoints by assert-
ing that they’re “safe, efficient, and cost-effec-
tive”—a bundle of claims negated by the many
other documents analyzed for the same report.
Among the examples: “In calendar year 2013,
nine out of 23 Tucson Sector checkpoints pro-
duced zero arrests of ‘deportable subjects.’ The
same year, Yuma Sector checkpoint arrests of
US citizens exceeded those of non-citizens by
a factor of nearly eight (and in 2011, by a fac-
tor of eleven). One checkpoint in Yuma Sector,
located 75 miles from the border, reported only
one non-citizen apprehension in three years,
while producing multiple civil rights complaints
during the same period.”
The CBP documents analyzed in “Record
of Abuse” were obtained through a Freedom
of Information Act (FOIA) request filed by the
ACLU of Arizona—more specifically, the law-
suit ACLU lawyers filed against the CBP after
the agency declined to turn over the requested
files within the twenty days mandated by FOIA.
A number of ACLU chapters across the country
R A C H A E L M A D D U X 77
status? There’s always that question. They say
they don’t profile, but who do you decide to
stop, and based on what?”
Dominguez, who is Mexican American,
believes she’s been racially profiled by Border
Patrol agents on multiple occasions. “I was going
through the checkpoint in Las Cruces, New Mex-
ico, with a friend of mine—she’s fairly white—
and then my husband, who’s Canadian,” she said.
“The agent was like, ‘All US citizens?’ and my
friend says, ‘No, he’s Canadian.’ The agent looks
at him, then looks at me, and he asks, ‘What
about you?’ I was like, ‘I’m a citizen.’ I was totally
profiled. He didn’t care about the Canadian. He
didn’t check his documents. He just cared about
the brown person in the back.” Another time,
driving alone at night from Brownsville, Texas,
to Houston, a checkpoint agent questioned
Dominguez about her citizenship, searched her
trunk without so much as a drug-dog sniff, then
apologized and sent her on her way. It was the
apology that really ticked her off. “It crossed my
mind, ‘Should I give him trouble for this?’ I’m
a citizen—why do you even want to search my
car?” she said. “But I’m sure I would’ve been
there for a couple hours if I did that, and I had
four more hours to drive. But in those situations
it’s like, why do I have to experience this type of
thing? Nobody should.”
“Disproportionately, it’s communities of
color, including immigrant communities, who
are affected,” said Mitra Ebadolahi with the
ACLU in San Diego. “But the the situation with
enforcement in border communities is so out of
hand that everyone is affected, not just what you
might think of as the usual suspects.” In 2016,
she filed a case on behalf of a fifty-eight-year-
old white man, a retired Navy SEAL, who was
tackled by Border Patrol agents while jogging
in a park near the US–Mexico border in south-
ern California. He was injured in the attack,
and detained overnight without being charged
or provided a doctor or a lawyer. In 2008, Pat-
rick Leahy, a white Democratic senator from
Vermont, was stopped by a Border Patrol agent
125 miles south of the border in New York state;
according to news reports, when he asked under
what authority he was being stopped, the agent
pointed to his gun and said, “This is all the
a checkpoint outside San Diego’s Friendship
Park, where families often gather to speak with
loved ones through a tall mesh fence on the US–
Mexico border. “It was set up as a hostile act
to prevent people from going to the park—that
was the sole purpose of the checkpoint,” Rios
said. A few years ago, after agents boarded a bus
of students visiting the park and threatened to
detain a young woman who’d been adopted from
China and couldn’t prove her immigration sta-
tus, Rios and the AFSC lobbied Border Patrol
and local California representatives and got the
checkpoint removed.
“CBP does not tolerate racial profiling or
agent misconduct and appropriately investi-
gates allegations of wrongdoing,” a statement
from the agency said in January 2014, respond-
ing to a complaint the ACLU of Arizona had
filed with DHS’s Office for Civil Rights and
Civil Liberties. But in December 2014, when
US Attorney General Eric Holder announced
an expansion of Department of Justice poli-
cies barring profiling—based on race, national
origin, gender, religion, and other criteria—by
federal law enforcement, the Obama admin-
istration allowed DHS agents involved in bor-
der enforcement, including CBP agents in the
100-mile-zone, to be exempt from the new poli-
cies, maintaining that profiling was an essential
element of their work. In 2014, one anonymous
federal immigration official told the Washington
Post, “We tend to have a very specific clientele
that we look for.”
But even with that mandate, Border Patrol
agents can be cagey about the racial element of
their work. Astrid Dominguez, an Immigrant
Rights Strategist with the ACLU of Texas, said
she’s had difficulty discussing the issue of pro-
filing with agents in the Rio Grande Valley Sec-
tor, where she grew up and now works with the
community. They’ve told her they can’t profile
because so many of their own agents are Latino,
too. “But you’re still stopping people,” she says
to them. “So please explain to me—what are
you basing your stops on? Unless you’re liter-
ally at the Rio Grande, parked there picking up
people, I don’t understand. If you’re walking
down the street downtown, why would you
stop someone just to inquire about immigration
78 V Q R | F A L L 2 0 1 7
off my vehicle unless he has a warrant, is that
clear?” The chief shakes his head and eventually
waves Bressi through.
Bressi says he’s often detained, sometimes
ticketed, and has been arrested once. Like most
of the refusers shown on YouTube, Bressi is
white. His skin color could be seen as a tacti-
cal asset in his interactions with agents, but he
chafes at the idea that his race affects how they
treat him. “I’ve never had the feeling that being
white was a shield in any way,” he said. “Perhaps
if I was white and submissive, the story would be
different. My experience, however, tells me that
being any color and any gender while actively
exercising your rights puts you in an entirely
different category in the eyes of so-called law
enforcement agents who don’t actually care
about the law.” But it’s hard to imagine anyone
other than a white American man filming him-
self resisting Border Patrol officers 600 times
and living to blog about it.
Going through a checkpoint can be a demoral-
izing, disorienting hassle for a US citizen; for
my husband and me, it was a nauseating win-
dow into a relationship with law enforcement
we’ve been otherwise shielded from by race
and luck. But for undocumented residents or
mixed-status families or anyone with any reason
to avoid interaction with federal agents, check-
points can be literal death traps. The ACLU of
New Mexico estimates that, between January
2010 and May 2017, upward of fifty-seven peo-
ple died as a result of an interaction with CBP
agents, fifty of those deaths the result of agents’
use of force or coercion. For many, the presence
of checkpoints prevents or complicates travel to
school, work, family, stores, and medical care,
causing economic, physical, and psychological
harm. Some undocumented residents resort
to traveling on foot, often through scorching
high-desert terrain, to avoid known sites of
agent activity. In Brooks County, Texas, since
2009, officials have recovered the remains of
at least 572 undocumented migrants who died
from exposure in the desert while attempting
to circumvent the checkpoint near Falfurrias,
seventy miles north of the border. During the
height of the lead-poisoned water crisis in Flint,
authority I need.” In May 2015, a white college
student named Jessica Cooke was detained for
questioning at a checkpoint outside Wadding-
ton, New York. A law enforcement leadership
major, she filmed her encounter with two Bor-
der Patrol agents who detained her for question-
ing on uncertain grounds. She begins the video
asking why she’s being detained; three minutes
later, after an increasingly tense exchange,
she’s apparently wrestled to the ground by a
male agent, who then shoots her with a stun
gun. The last ninety seconds of the video are
just hazy blue sky and the sound of her frantic
screams and sobs.
Cooke’s video can be viewed on YouTube
along with thousands of others with such titles
as “Man Refuses to Cooperate with Unconsti-
tutional Checkpoint” and “Resisting Tyranny
in Texas CheckPoint We must fight this feder-
alism that is overtaking our state.” In one, an
agent appears at a man’s driver’s side window
and says, “Are you a US citizen?” and the man
says, “That’s my business.” When the agent
directs him to pull over into the checkpoint’s
secondary inspection area, the man says, “No
thanks”—repeating the line, over and over, to
the two agents sent over as backup. “Correct me
if I’m wrong, but did I stumble into Mexico?
Or is this still the United States?” the man asks
the fourth agent who appears, who eventually
lets him go. The video, titled “‘No Thanks’ Best
DHS Checkpoint Refusals EVER!” has nearly
10 million views.
These refusal videos have emerged as another
way to glimpse inside the black box of the bor-
der zone. Terry Bressi, an Arizona resident who
has run a website chronicling his interactions
with DHS agents since 2007, estimates he’s
been through the checkpoint on state highway
SR-86 about 700 times over the past decade,
filming upward of 600 of his encounters with
agents there. In his videos, Bressi responds with
polite but blunt refusals, sometimes silence, and
sometimes with questions of his own, pointing
out—to the agent, and to the implied online
audience—every extralegal misstep. “Is that
agent touching my vehicle?” he asks one check-
point chief sent to reason with him, in a video
posted in 2008. “Tell him to keep his hands
R A C H A E L M A D D U X 79
Michigan, whose office has another FOIA law-
suit pending with CBP.
Meanwhile, CBP spokesmen maintain that
all is well. “I believe our agency is very trans-
parent and has a significant amount of infor-
mation about the work we do and our mission
available for the public to consider at our
extensive website,” said Roger Maier, a public
affairs specialist for the CBP in West Texas and
New Mexico. He cited a number of pages on
CBP.gov, including an overview of the Border
Patrol’s mission regarding checkpoint opera-
tions, a PDF of apprehension statistics from the
previous fiscal year, and a news release archive.
But when it comes to determining if agents at
interior checkpoints are operating success-
fully, “no current metric exists,” said Carlos
A. Diaz, the CBP’s southwest border branch
chief. Data regarding vehicles and individuals
stopped, searched, and released isn’t collected,
he says, because “the volume of work and scope
of USBP’s jurisdiction does not afford the abil-
ity to utilize valuable enforcement resources
to document non-enforcement activities.” For
those with concerns, Maier pointed to the CBP
customer service page, where anyone can sub-
mit a comment via web form. When I asked
how CBP handles complaints raised by citizens,
Diaz said, “Currently, there is not a standard-
ized process.”
The ACLUs of Arizona and New Mexico have
urged the CBP to correct this by standardizing
the way agents collect, investigate, and resolve
complaints nationwide, and have emphasized
the importance of prioritizing complaints of
civil rights violations and ensuring that offend-
ing agents are held accountable to publicly avail-
able discipline policies. They’ve also advocated
for overhauling and regulating agent training—
documents analyzed in the “Record of Abuse”
Michigan, many people delayed or entirely
avoided treatment due to Border Patrol pres-
ence in the area.
In some areas, community networks spread
the word about when checkpoints are opened
or closed. But it’s impossible to avoid Border
Patrol entirely. Roving patrols can be any-
where, at any time—mall parking lots, Amtrak
trains, Greyhound buses. And in many places
Border Patrol increasingly operates in tandem
with local law enforcement, sometimes even as
first responders, which means a traffic stop for
something minor like a broken taillight, or a 911
call for a medical emergency, has the potential
to escalate into deportation. Lawyers with the
ACLU of Michigan, working with a researcher
at the University of Arizona, analyzed logs from
the Detroit Sector and found that 63 percent
of the people Border Patrol apprehended had
first been stopped by another law enforcement
agency that called Border Patrol for immigra-
tion enforcement.
The ACLU of Michigan’s analysis indicates
another problem—that of mission creep. Border
Patrol increasingly operates as a general crime
and drug enforcement unit in addition to their
mandate of immigration control. In the Detroit
Sector logs analyzed, 40 percent of the people
apprehended were US citizens or foreign citi-
zens in the country lawfully; 82 percent of the
foreign citizens were Latino, and less than 2
percent of the foreign citizens had a criminal
record. Only about 5 percent of the foreign cit-
izens had crossed into the US during the previ-
ous month. “We’re dealing with Border Patrol
stopping people who are integrated into their
communities or are long-term residents of the
United States, not people who are in the pro-
cess of crossing the border,” said Miriam Auker-
man, a senior staff attorney with the ACLU of
For too many of us, the border was always somewhere else, the problems
there someone else’s problems, unrelated to our own. But here on the dark side of
January 20, there’s a new sort of vigilance, a spreading hyper-attenuation.
80 V Q R | F A L L 2 0 1 7
knock the 100 miles down to twenty-five along
the northern border; California’s Dianne Fein-
stein has proposed similar legislation, and after
her constituent Jessica Cooke was detained and
stun-gunned in 2015, New York Senator Kirsten
Gillibrand sponsored legislation to strengthen
Border Patrol’s data collection practices. So far,
no meaningful legislative headway has been
made, but a general principle has been demon-
strated: It helps to make matters personal.
“Bringing these issues up to congress is import-
ant to us because members of congress don’t
understand that when we’re talking about the
border, we’re not only describing what demar-
cates a line between the US and Mexico,” said
Rios. “We’re describing the whole 100-mile
swath of land that really impacts the lives of
millions of people.”
Astrid Dominguez has seen the effect of
direct engagement in action at the agency level,
too. Last December, a woman attending a com-
munity baseball game in the Rio Grande Valley
took her small child into some nearby brush to
pee. A Border Patrol camera detected them, and
agents soon arrived and demanded their doc-
umentation. The crowd at the baseball game,
which included the town’s mayor, was outraged.
Dominguez often meets one-on-one with
Border Patrol agents and leadership to express
community concerns, but this time she urged
Manuel Padilla, the Rio Grande Valley’s new
sector chief, to talk to the panicked community
himself. “That was a huge step,” she said. “At one
point he asked, ‘Do you feel like we’re there all
the time?’ And the community said, ‘Yes!’—all of
them at the same time. I think it was a takeaway
moment for him. What happens on the ground,
it doesn’t go all the way up. So for him, I think it
was mind-blowing. He was like, ‘Wow, we have
to have these conversations, we have to have
them with the patrol agents, we need to under-
stand how this is impacting the community.’ For
us, that was a step. That’s exactly what we want.”
Dominguez paused and laughed. “Now, that
was prior to the inauguration. We haven’t had
those conversations after.”
A few days before my husband and I encoun-
tered the checkpoint on Highway 118, while we
report suggest it’s currently ad hoc at best, and
often “more concerned with managing public
relations than with respecting the rights of those
with whom the agency comes into contact.”
Even better, the ACLU says, the agency should
adopt standard law enforcement best practices
around data collection and communication.
Only then will anyone—the agencies included—
have anything close to a full understanding of
what agents are really doing in border communi-
ties, and only then will there be hope of holding
agents accountable for their actions. Until then,
FOIA requests, and the lawsuits that predictably
follow, will continue to illuminate, in fragments,
the agency’s many lacunae and flimsy rationales.
“This idea that we need this massive border
force is really at odds with reality,” says Auker-
man. “All of these agents are out there using
these expansive powers they’ve been given in
ways that are really not about securing the bor-
der. That’s what the litigation is about—trying
to uncover what actually is going on.”
Another point in the constellation of solu-
tions: Reconsider the circa-1970s legal prec-
edent. “The Supreme Court found that only
minimal intrusion existed to motorists at rea-
sonably located checkpoints even in the absence
of reasonable or individualized suspicion,”
Maier said, repeating a common Border Patrol
talking point, a reference to United States v. Mar-
tinez-Fuerte. Patrick Eddington, a Cato Institute
policy analyst specializing in homeland security
and civil liberties, scoffs at this. “[There’s] this
notion that because it’s just more convenient
for the agents to be able to stop people, that’s a
sufficient justification in terms of immigration
control,” he said, but “the more you lower the
bar in response to law enforcement whining—
and as far as I’m concerned, that’s what it is—the
more you make it likely that people’s rights are
going to be abused.”
Eddington has called on congress to clarify
the decision, with no success so far. He’s also
pushed for a clarification and redefinition of
“reasonable distance” (he’d prefer it to be “about
100 yards inside the United States”), an idea
that’s gotten more traction. Following his own
encounter in 2008, Senator Leahy cosponsored
legislation with Oregon Senator Patty Murray to
R A C H A E L M A D D U X 81
were still down in Big Bend National Park, I
stood on one gravelly bank of the Rio Grande
and stared out across the river at Mexico, twenty
feet away. The water was green-brown, shal-
low and moving slow. There was no one else
around—no one with a badge and a gun, anyway.
I could’ve waded right across to the other side.
Until then, I’d thought of this river as the border,
its 1,900 miles of jagged switchbacks an erratic
but natural boundary. But suddenly I wasn’t
sure anymore. Where was the line, exactly—the
point in space and time at which my country
became another, where I would go from citizen
to alien? Was it there, where dry rocks became
wet rocks, or maybe over on the opposite bank,
where tall green grass waved against a backdrop
of distant brown mountains? Later I learned it
was somewhere in between: Per the 1848 Treaty
of Guadalupe Hidalgo, most of the US–Mexico
border runs along the deepest channel of the
river. An organization called the International
Boundary and Water Commission is supposed
to remeasure the channel and redraw the line
every ten years. Even if the channels change,
even if a deeper furrow forms in the silt, the old
deepest channel remains the border until the
river is measured again.
The border—even the true border, not just
its dubious statutory zone—is an ever-shifting
thing, forever up for renegotiation. And the same
is true for whatever rights we Americans believe
we enjoy, from our country’s outer edges to its
deepest landlocked heart. From certain distant
vantage points, the contours of those liberties
can seem so obvious, so deeply natural, it can
be easy to forget the specifics—that they were
granted by man and may be revoked by man, too.
Their continued existence is not a foregone con-
clusion. Like borders, they aren’t always where
or exactly what you think. And, like borders,
they occasionally must be defended in order to
remain useful. Our uncertain, alienable rights.
The presence of Customs and Border Protec-
tion agents at JFK last February was jarring, in
part, because it suggested the sudden redraw-
ing of a once-solid line. But whatever had once
kept CBP agents out of domestic terminals in
American airports was never that well defined
to begin with. It was a border zone within the
border zone, of sorts—a generally agreed upon
sense of what could be gotten away with, and
when and where and with whom. A norm, in
the parlance of our abnormal times. “If CBP
wanted to set these things up, for example, in
Washington, DC, or Chicago or Miami, or L.A.
or Seattle—technically, from a legal standpoint,
they could do it,” said Eddington. “It would be a
political loser for them, I think, and the backlash
would be pretty enormous. But right now there’s
nothing to stop them from doing it.”
Of course, there wasn’t much stopping them
from doing it during the Obama administration,
either. One reason these lines are being so eas-
ily redrawn now is that they were allowed get
so blurred over the past eight, sixteen, twenty
years. For too many of us, the border was always
somewhere else, the problems there someone
else’s problems, unrelated to our own. But here
on the dark side of January 20, there’s a new sort
of vigilance, a spreading hyper-attenuation. Per-
haps we see more clearly now what we’ve always
had: a flawed, fragile, stubborn democracy that
needs help keeping its promises. And we see
that we have these, too: cell-phone cameras and
social networks, dogged attorneys and commu-
nity organizers, peeved legislators and watchful
writers, anger and indignance, impatience and
hope. Tools to free ourselves from the inside out,
hacking and straining toward justice. Welcome
to America circa 2017. It’s just getting started.
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