Friday, July 12, 2013

Immigration Articles of the Day: Three by Kerry Abrams


What Makes the Family Special? by Kerry Abrams, University of Virginia School of Law, 80 University of Chicago Law Review 7 (2013)

Abstract: This Article examines the rationales for family-based immigration, observing that most justifications for family-based admissions policies have rested on humanitarian grounds, and asking whether there are economically rational reasons why a receiving country like the U.S. would privilege family-based immigration over other types. It identifies a taxonomy of possible reasons: (1) families may function as a mechanism for integrating immigrants into U.S. society; (2) family-based immigration may be a form of labor migration in disguise, especially in low-skilled markets where employer needs are in flux and difficult to predict, and (3) family-based immigration may allow the government to engage in forms of social engineering (such as ensuring an optimal ratio of male to female immigrants, or restricting same-sex couples from entry) that it would not be able to constitutionally engage in through other means.


Plenary Power Preemption by Kerry Abrams University of Virginia School of Law, Virginia Law Review, Vol. 99, No. 601, 2013

Abstract: This Essay responds to the Supreme Court’s recent decision in Arizona v. United States, which struck down all but one of the disputed sections of Arizona’s S.B. 1070 immigration law. It advances the theory that although the Arizona Court purported to apply classic conflict and field preemption analyses, it was actually using a different form of preemption, one that gives particular weight to federal interests where questions of national sovereignty are at stake. The Court did so through doctrinal borrowing of the “plenary power doctrine,” which gives the political branches special deference when passing or executing immigration legislation, even where doing so would otherwise violate individual constitutional rights. This Essay labels the form of preemption used in Arizona and other alienage cases “plenary power preemption.” It shows how this doctrine developed over time, as the scope of the legitimate exercise of state police power and federal immigration changed, and federal and state regulation of noncitizens became more complex and enmeshed. It argues that plenary power preemption has two important effects: it allows courts to evade the thorny question of the scope of executive — as opposed to legislative — power over immigration, and it substitutes for the lack of an equal protection doctrine.


Citizen Spouse by Kerry Abrams University of Virginia School of Law, 101 California Law Review 407 (2013)

Abstract: Marriage and citizenship have a complicated relationship to one another. Marriage is often the primary way in which a person can exercise and demonstrate his or her identity under law, by claiming legal benefits and by performing legal obligations. This Essay examines the history of one particularly salient example of marriage-as-citizenship — the derivative domicile rule — and uses this history to consider how the relationship between marriage and citizenship has changed and developed over time. The derivative domicile rule linked a woman’s domicile, and her state citizenship along with all the rights and obligations it carried, with her husband’s domicile by operation of law. This happened regardless of where she actually lived or what state she subjectively owed allegiance to. Derivative domicile remains pertinent today because many states still use it to determine state citizenship for married people, either as a presumption rebuttable by a married woman or as a rule that applies to both spouses and links their domicile by presuming they will each regard one single place as their home. The history and current application of the derivative domicile rule demonstrate that these presumptions fail to accurately reflect the preferences of many married people whose domiciles do not match their spouses’. This Essay argues that derivative domicile illustrates the dangers of uncritically eliding marriage and citizenship.


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