Law Commons^™

Comparing Supreme Court Jurisprudence In Obergefell V. Hodges And Town Of Castle Rock V. Gonzales: A Watershed Moment For Due Process Liberty, Jill C. Engle

Journal Articles

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” -- Obergefell v. Hodges, 135 S. Ct. 2584, …

Reading (Into) Windsor: Presidential Leadership, Marriage Equality, And Immigration Policy, Victor C. Romero

Journal Articles

Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration directed a bold, equality-based reading of Windsor to immigration law, treating bi-national same-sex couples the same as opposite-sex couples. This Essay argues that the President's interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the Executive's power to enforce immigration law and to guarantee equal protection under the law; and politically, because it reflects the current, increasingly tolerant view of marriage equality. Though still in its infancy, President Obama's policy of treating same-sex beneficiary petitions generally the same as …

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero

Journal Articles

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Journal Articles

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Asians, Gay Marriage, And Immigration: Family Unification At A Crossroads, Victor C. Romero

Journal Articles

Family unification has long been a significant component of U.S. immigration policy, and the Asian Pacific American (APA) community has long been a champion of laws that strengthen America's commitment to this goal. The recent emergence of same-gender marriages among state and local governments has caused society to consider more closely its definition of the family, challenging the traditional notion that only civil unions between heterosexuals should be celebrated. But because U.S. immigration law does not include a gay or lesbian partner within its statutory definition of spouse, binational same-gender couples may not legally remain in the country together, even …

The Child Citizenship Act And The Family Reunification Act: Valuing The Citizen Child As Well As The Citizen Parent, Victor C. Romero

Journal Articles

Leading civil rights advocates today lament the degree to which current immigration law fails to maintain family unity. The recent passage of the Child Citizenship Act of 2000 is a rare bipartisan step in the right direction because it grants automatic citizenship to foreign-born children of U.S. citizens upon receipt of their permanent resident status and finalization of their adoption. Congress now has before it the Family Reunification Act of 2001, which aims to restore certain procedural safeguards relaxed in 1996 to ensure that foreign-born parents are not summarily separated from their children, many of whom may be U.S. citizens. …

Proposals To Expel Palestinians From The Occupied Territories As Catalyst For A Civil Adjudication Campaign, Catherine A. Rogers

Journal Articles

I begin in Part II with a brief sketch of the history of stated policies to expel Palestinians from what is now Israel and the Occupied Territories, and then examine recent proposals that have been made and actions that have been taken to implement modern re-articulations of those historic policies. In Part III, I then review the grounds on which international law proscribes mass expulsions of indigenous and occupied peoples. While international law governing this issue is clear in its application and has been overwhelmingly endorsed by the larger international community, international law seems to have little influence on Israel's …

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Journal Articles

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …

On Elián And Aliens: A Political Solution To The Plenary Power Problem, Victor C. Romero

Journal Articles

The poignant story of a little boy fished out of the sea after losing his mother to the elements captured the country's imagination and ignited a political firestorm. The Elián González saga drew conflicting opinions from nearly every branch of American local, state, and federal governments.

This article takes no specific position on Elián's situation. Rather, this artivle values the González story for putting a human face on often faceless legal issues. More specifically, Elián's saga raises the following important question: When should the right of the human being to be treated as an individual trump the right of government …

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Journal Articles

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …