November 9, 2012
Immigration Article of the Day: Geoffrey Hereen, Persons Who Are Not the People: The Changing Rights of Immigrants in the United States
Geoffrey Hereen, "Persons Who Are Not the People: The Changing Rights of Immigrants in the United States" , Columbia Human Rights Law Review, Vol. 44, No. 2, 2013, Forthcoming
Abstract: Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes — federalism and agency skepticism — have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act (APA) theories. This article describes this shift, considers the reasons for it, and argues that the APA and preemption may not protect non-citizens as well as individual rights like equal protection. For example, the preemption principles underlying the Supreme Court’s recent decision in Arizona v. United States might be used to attack state policies that are more beneficial to non-citizens than federal ones, such as the efforts of some jurisdictions to resist compliance with the federal government’s “Secure Communities” enforcement program. The APA, moreover, can be used to attack pro-immigrant federal policies, as in a challenge recently filed by a group of Immigration and Customs Enforcement agents to the Obama Administration’s “Deferred Action for Childhood Arrivals” program for undocumented immigrant youth. The article contends that federalism and agency skepticism are weak proxies for rights, which protect their holders by conveying both autonomy and membership. While recent jurisprudence does recognize non-citizens’ procedural rights and core rights of personhood in the criminal and quasi-criminal contexts, it rarely acknowledges that at least some non-citizens are members of civil society. The article critiques this shift as inconsistent with democratic values.
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