Law Commons^™

Second Amendment Immigration Exceptionalism, Pratheepan Gulasekaram

Publications

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of "immigration exceptionalism." It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal …

The War On Terror & Vigilante Federalism, Maryam Jamshidi

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No abstract provided.

Immigration Enforcement Preemption, Pratheepan Gulasekaram

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The Supreme Court's 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona's omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court's approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas's prosecutions of noncitizens who …

The Second Amendment's "People" Problem, Pratheepan Gulasekaram

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The Second Amendment has a “people” problem. In 2008, District of Columbia v. Heller expanded the scope of the Second Amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited “the people” of the Second Amendment to “law-abiding citizens.” In 2022, New York State Rifle & Pistol Ass’n v. Bruen doubled down on the Amendment’s self-defense rationales but, once again, framed the right as one possessed by “citizens.” In between and after the two Supreme Court cases, several lower federal courts, including eight federal courts of appeals, wrestled with the question whether the right …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

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A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp

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Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

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As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

The Political (Mis)Representation Of Immigrants In The Census, Ming Hsu Chen

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Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights but based on their rights as current and future members of the political community. This is the second of two Essays. The first Essay focused on voting restrictions impacting Asian American and Latino voters. The second Essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 Census. Together, the Essays critique the …

Making Litigating Citizenship More Fair, Ming H. Chen

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No abstract provided.

Citizenship Denied: Implications Of The Naturalization Backlog For Noncitizens In The Military, Ming H. Chen

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The immigration system is in crisis. Long lines of asylum seekers at the border and immigrants in the interior spend years waiting for their day in immigration court. This is true in the agencies that process applications for immigration benefits from legal immigrants as well. Since 2016, delays in naturalization have increased to historic proportions. The problem is even worse for military naturalizations, where delays are accompanied by denials and overall declines in military naturalizations. It is the latest front in the battle on legal migration and citizenship.

These impediments to citizenship demonstrate an extreme form of policies collectively dubbed …

How Much Procedure Is Needed For Agencies To Change “Novel” Regulatory Policies?, Ming Hsu Chen

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The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier and faster and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment and immigration law issues such as …

Silence And The Second Wall, Ming H. Chen, Zachary New

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The Trump administration has made its clarion call “build the wall.” From the start of the presidential campaign to the government shutdown to the declaration of a national emergency, he has made the wall the centerpiece of his immigration enforcement strategy. While the public attention has been riveted on these dramatic episodes at the southern border of the U.S., many more subtle challenges to legal migration have been introduced and implemented. Collectively, these constitute a second wall – one that is invisible to all but the few who have noticed it. This essay explores the distinctive challenges being posed to …

Leveraging Social Science Expertise In Immigration Policymaking, Ming H. Chen

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The longstanding uncertainty about how policymakers should grapple with social science demonstrating racism persists in the modern administrative state. This Essay examines the uses and misuses of social science and expertise in immigration policymaking. More specifically, it highlights three immigration policies that dismiss social scientific findings and expertise as part of presidential and agency decision-making: border control, crime control, and extreme vetting of refugees to prevent terrorism. The Essay claims that these rejections of expertise undermine both substantive and procedural protections for immigrants and undermine important functions of the administrative state as a curb on irrationality in policymaking. It concludes …

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

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My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Administrator-In-Chief: The President And Executive Action In Immigration Law, Ming H. Chen

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This Article provides a framework for understanding the role of the President as the Administrator-in-Chief of the executive branch. Recent presidents, in the face of heated controversy and political division, have relied on executive action to advance their immigration policies. Which of these policies are legitimate, and which are vulnerable to challenge, will determine their legacy. This Article posits that the extent to which the President enhances the procedural legitimacy of agency actions strengthens the legacy of the policies when confronted regarding their substance. This emphasis on shoring up administrative procedure is a form of expertise that should be counted …

Beyond Legality: The Legitimacy Of Executive Action In Immigration Law, Ming H. Chen

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Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

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The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and …

Did Multicultural America Result From A Mistake? The 1965 Immigration Act And Evidence From Roll Call Votes, Gabriel J. Chin, Douglas M. Spencer

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Between July 1964 and October 1965, Congress enacted the three most important civil rights laws since Reconstruction: The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Immigration and Nationality Act Amendments of 1965. As we approach the 50th anniversary of these laws, it is clear that all three have fundamentally remade the United States; education, employment, housing, politics, and the population itself have irreversibly changed.

Arguably the least celebrated yet most consequential of these laws was the 1965 Immigration Act, which set the United States on the path to become a "majority minority" nation. In …

Immigration And Cooperative Federalism: Toward A Doctrinal Framework, Ming H. Chen

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What can the new federalism teach us about what is happening in immigration law? The changing relationship of federal-state government in the regulation of immigrants has led to the creation of “immigration federalism” as a field of scholarship. Most of this scholarly attention has been directed at resisting restrictionist legislation that encourages vigorous law enforcement against undocumented immigrants. The scholarly tilt is especially pronounced since the Supreme Court recently struck down several provisions of S.B. 1070, Arizona’s restrictive law enforcement legislation. However, law enforcement is only one type of regulation, and the overwhelming focus on it skews the broader debate …

Language Rights As A Legacy Of The Civil Rights Act Of 1964, Ming Hsu Chen

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The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.

Governing By Guidance: Civil Rights Agencies And The Emergence Of Language Rights, Ming Hsu Chen

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On the fiftieth anniversary of the Civil Rights Act of 1964, this Article asks how federal civil rights laws evolved to incorporate the needs of non-English speakers following landmark immigration reform (the 1965 Hart-Cellar Act) that led to unprecedented migration from Asia and Latin America. Based on a comparative study of the emergence of language rights in schools and workplaces from 1965 to 1980, the Article demonstrates that regulatory agencies used nonbinding guidances to interpret the undefined statutory term "national origin discrimination" during their implementation of the Civil Rights Act of 1964. Their efforts facilitated the creation of language rights, …

Panel Discussion Iii: Recognizing And Addressing Immigration Concerns In The Criminal Process, Violeta Chapin, Dan Kesselbrenner, Christina Kleiser

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No abstract provided.

Immigration And Naturalization Law, Johanna K.P. Dennis, Et Al.

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This article summarizes developments in immigration and naturalization law during 2011.

"Mommy, Where Is Home?": Imputing Parental Immigration Status And Residency For Undocumented Immigrant Children, Johanna K.P. Dennis

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This Article discusses whether the parent's time in residence and date of admission (immigration status) should be imputed to an unemancipated minor; the two recently decided U.S. Supreme Court cases addressing this issue; the policy implications and impact of an imputation rule on undocumented children; and the impetus and potential vehicles for changing the status quo.

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

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This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

¡Silencio! Undocumented Immigrant Witnesses And The Right To Silence, Violeta R. Chapin

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At a time referred to as "an unprecedented era of immigration enforcement," undocumented immigrants who have the misfortune to witness a crime in this country face a terrible decision. Calling the police to report that crime will likely lead to questions that reveal a witness's immigration status, resulting in detention and deportation for the undocumented immigrant witness. Programs like Secure Communities and 287(g) partnerships evidence an increase in local immigration enforcement, and this Article argues that undocumented witnesses' only logical response to these programs is silence. Silence, in the form of a complete refusal to call the police to report …

Alienated: A Reworking Of The Racialization Thesis After September 11, Ming H. Chen

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This article revises widespread application of the racialization thesis to Arabs, Muslims, and South Asians following September 11. It suggests in its place an “alienation thesis” to describe the formation of an alien identity for those perceived and treated as noncitizens. This thesis draws on Asian American and critical race scholarship to re-interpret sociological understandings of the post-September 11 response to Arabs, Muslims, and South Asians. The article concludes that shifting conceptions of this phenomenon is critical to reforming “alienating” practices that function not only to cause harm to their intended targets, but also to distort the legal requirements of …

Crisis On The Immigration Bench: An Ethical Perspective, Michele Benedetto Neitz

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The purpose of this article is to suggest a new lens through which to examine the crisis in immigration courts: judicial ethics. Ethical considerations frequently play a decisive role in the resolution of immigration cases, in part because the outcomes for litigants in immigration courts can depend almost entirely on the attitude of the judge. Accordingly, the acknowledged crisis in immigration courts has severe implications for judicial ethics. Because the term "judicial ethics" encompasses a broad array of principles, this article will narrow its focus to bias and incompetence on the part of immigration judges in the courtroom. Part II …

United States Migration Law: Essentials For Comparison, Christian N. Okeke, James A.R. Nafziger

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The immigration and nationality law of the United States is complex. It is more the product of historical experience than logical design. In one memorable, often-quoted simile, the law bears "a striking resemblance" to "King Minos's labyrinth in ancient Crete." Perhaps only the internal revenue (tax) code and its voluminous regulations are more intricate. Given this complexity, we can only summarize United States migration law. The purpose of this article, as part of a transnational dialogue, is to locate the migration law of the United States within the framework of international migration law and to highlight the essential features of …

Bicentennial Man -- The New Millennium Assimilationism And The Foreigner Among Us, Lolita K. Buckner Inniss

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No abstract provided.