Tuesday, April 19, 2022
Immigration Article of the Day: Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds by Curtis A. Bradley
Reassessing the Legislative Veto: The Statutory President, Foreign Affairs, and Congressional Workarounds by Curtis A. Bradley, Forthcoming, Journal of Legal Analysis
There have long been complaints about the growth of presidential power. These complaints intensified during the Trump administration, and there are now calls for a host of separation-of-powers reforms designed to restore congressional authority. As some advocates for reform recognize, many of the controversial actions that presidents take are based on statutory authorization. For example, the Trump administration’s “travel ban,” its re-imposition of sanctions against Iran, and its shifting of funds to be used to construct the southern border wall were all based, at least principally, on statutory delegations rather than on claims of independent presidential authority. A chief reason that the President is insufficiently constrained when exercising such statutorily-delegated power, it is claimed, is the Supreme Court’s disallowance of legislative vetoes in its decision in INS v. Chadha, a claim that intensified during the Trump administration. This Article challenges this account, arguing that the availability of the legislative veto was less important before Chadha to congressional-executive relations than legal scholars commonly assume, and that, to the extent that the legislative veto was (or would have become) important for checking some exercises of statutorily-delegated authority, Congress has developed a host of effective workarounds in the years since Chadha. It illustrates this claim with case studies concerning war powers, arms sales, and emergency declarations. The Article also argues that the functional case for allowing legislative vetoes is more debatable than many critics of Chadha have acknowledged.
Sunday, April 17, 2022
The immigration system operates through the looming threat of the arrest, detention, and removal of immigrants from the United States. Indiscriminate arrests of immigrants result in family separation. Immigrants languish in carceral facilities for months or even years. For most undocumented immigrants, there is no available pathway to citizenship. To protest this injustice, undocumented immigrants, lawful immigrants, and native-born citizens defy the law by engaging in direct action, deportation resistance, or hunger strikes.
This article examines how this phenomenon, which I call “immigration disobedience,” has fundamentally altered the legal landscape for immigration reform. It begins with a description of immigration disobedience by drawing on hundreds of accounts over the past decade and provides context for the phenomenon within the history of disobedience to the immigration system. Next, it considers the ways in which immigration disobedience consists of a new approach to resistance within the movement for immigrant rights. Immigrants develop their capacities as noncitizen political agents and take on leadership for the movement. Activists create new spaces of contestation to be publicly viewed and heard. As a result, immigration disobedience has produced a more transformative agenda that aims to redefine citizenship, end detention, and abolish ICE.
Ultimately, this Article explores how everyday people in social movements, who have a more personal and sophisticated understanding of the law’s dysfunction, can offer more creative and radical policy possibilities for legal reform. A decade of immigration disobedience has shifted the political demands from a focus on the legalization of immigrants to an overhaul of the existing immigration system. Rather than seek procedural improvements or benefits for “deserving” immigrants, today’s agenda recognizes the need to reconfigure institutions that perpetuate structural racial and economic inequality. More specifically, immigration disobedience teaches us, as lawyers and legal scholars, about the need to look to activism outside the law to work, think, and act in service of social change.
Saturday, April 16, 2022
Immigration Article of the Day: Creating Home: Multilevel Governance Structures for Emerging Climate Migration by Alice Kaswan
Whether in response to sudden disasters or “slow-onset” conditions like sea level rise, intolerable heat, or water scarcity, millions, if not billions, of people in the United States and around the world are likely to move in the coming decades. Where will people go? While considerable attention has focused on how communities can adapt to a changing climate in place, less attention has focused on those who choose or are compelled by circumstances to leave and the neighborhoods, cities, and states likely to absorb them. The experience will be most challenging for marginalized and low-income migrants, who will face significant hurdles in finding adequate housing and other resources. In-migration could also intensify existing stresses within receiving communities, including gentrification, insufficient affordable housing, unemployment, and inadequate resources to manage the needs of an increasing population.
Focusing on housing, this Essay argues that a national strategy to address the needs of migrants and receiving communities is necessary. That strategy should incorporate roles for multiple levels of government. Against a backdrop of key federalism values, including pragmatism, democratic legitimacy, and the prevention of tyranny, the Essay identifies appropriate roles for federal and local governments.
Thursday, April 14, 2022
This Article contributes to the emerging literature on abolition within the immigration legal system by mapping deportation abolition theory onto lawyering practice. Deportation abolitionists work to end immigrant detention, enforcement and deportation, explicitly understanding immigrant justice as part of a larger racial justice fight connected to resisting white supremacy. Although a number of deportation abolition initiatives have recently emerged to challenge the racist foundations of immigration law, most of these deportation abolition organizations have few, if any, lawyers on staff. This Article surfaces tensions related to deportation abolition theory and lawyering, including goals within abolition theory to center directly-affected people and address power and privilege differentials, including the privilege of being a lawyer. Lawyers practicing a deportation abolition ethic may confront challenges with reconciling their professional role as officers of the court and duties to their individual clients as the operate within an unjust system they seek to abolish. Despite these tensions, this Article argues that immigration lawyers interested in moving towards deportation abolition can play significant support roles in efforts to radically transform the immigration legal system, as well as in complementary efforts to address the immediate needs of those entangled in the deportation system.
The National Immigration Project recently announced that Professor Hlass was the Recipient of the 2022 Elisabeth S. “Lisa” Brodyaga Award. The award honors a NIP member doing outstanding work for immigrant rights.
Wednesday, April 13, 2022
Immigration Article of the Day: Punishing with Impunity: They Legacy of Risk Classification in Immigration Detention by Robert Koulish and Kate Evans
In 2012, the Department of Homeland Security adopted a risk classification assessment (“RCA”) tool to run on migrants in the custody of Immigration and Customs Enforcement (“ICE”). The risk tool helped determine who was detained and who was released from ICE custody. It was intended to curb detention rates by limiting detention based on risk of flight and danger and to ensure that the conditions of civil immigration detention were distinct from those in criminal detention. This Article presents data from several RCA data-sets received pursuant to the Freedom of Information Act.The story of the RCA is one of manipulation, subversion, and bias. In this study, we examine the RCA’s outcomes for migrants with special vulnerabilities, migrants subject to mandatory detention, and migrants eligible for bond and release. We demonstrate that over time the risk tool recommended release or bond for fewer and fewer categories. Further, ICE officers’ punitive use of detention defeated attempts at top-down reform and resulted in detention without bond for nearly every migrant. As the Biden administration faces mounting criticism over its detention policy, our results amplify calls to shift the paradigm in immigration enforcement and to eliminate the use of detention as the predominant method of immigration control.
In Priorities and the State of Implicit Bias in Crimmigration posted today on Regulatory review, Carrie Rosenbaum writes that:
"The modern civil rights movement has brought greater attention to the question of racial justice and the criminal justice system.
Although the role of race in immigration law has received less political and public attention, legal scholars have long written about it. For at least two decades, scholars have addressed the way that implicit bias endemic to the criminal justice system seeps into the immigration removal machinery, particularly with respect to removals of individuals of Mexican and Central American descent—or Latinos.
Today, criminality remains a primary filtering mechanism that still imports the biases embedded in the criminal justice system, despite increased awareness of the problem of race in policing.
Immigration enforcement practices that rely on the criminal justice system import the systemic biases of that system."
Click the link above to read more.
This essay is part of a seven-part series titled Race and Regulation.
Saturday, April 9, 2022
Popular discourse and political theory celebrate the bond between family and state: the state supports families; the state depends on families; the state loves families. In the language of Article 16 of the Universal Declaration of Human Rights, drafted and endorsed by states, “The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” (United Nations 1948). The family is represented as primordial, prepolitical, and foundational. Politicians, academics, and judges alike reach for family when seeking a metaphor for the nation, when claiming authority as parens patriae over children, or in appeals to the mother/father/homeland. But for some of the same reasons that the family is an attractive metaphor for the state, the family is also a potential rival for the citizen’s affection and devotion. In this sense, the state’s love of family is mixed with envy. The citizen’s love of a foreigner—entwining kinship and otherness—competes with love of nation. This short chapter (written as epilogue) explores the rivalrous dimension of the state-family bond through the vehicle of marriage/intimate partner migration practices of states. It asks what is being regulated, who regulates and is regulated, and how they are regulated. It concludes with a provocative claim: States' campaigns to restrict and reduce kinship migration (here 'marriage migration') partakes of a eugenicist impulse to people the nation with those considered most fit and desirable. Anti-miscegenation laws, forcible sterilisation, or compelled reproduction have long been repudiated. The state does not get to choose who enters the polity through the birth canal. The state does, however, arrogate power to dictate whether kin can enter the polity through immigration. The difference between citizens and noncitizen lies less in the state’s preferences regarding who is a fit and desirable member of the polity than in perceptions of the legitimacy of using coercion to advance those preferences within the polity versus at its border. I call this the project of immigration eugenics.
Friday, April 8, 2022
This Article will discuss the interplay between citizenship, race, and ratification of statehood in the United States, both historically and prospectively. Part II will discuss the development and history of the Insular Cases and the creation of the Territorial Incorporation Doctrine (“TID”), focusing on the Territory of Puerto Rico and how the issues of citizenship, race, and statehood have evolved in shadow of empire as a result. Part III will look back on the admission to the Union of New Mexico and Arizona—the forty-seventh and forty-eighth states—and discuss the substantial difficulties these territories had in getting admitted for statehood due to their majority non-white, Spanish-speaking populations. This section also reflects on the de facto requirement of whiteness as a prerequisite for statehood as exemplified by the larger struggle for territorial statehood in the West, and the detrimental impact that the culture of white supremacy has had on the ability of territories to achieve full membership in our society. Part IV will examine the factors surrounding the admission of our fiftieth State, Hawai’i, and the impact that its large Native Hawaiian and other Asian/Pacific Islander population had on its quest for statehood. This part will also examine the strategic reasons that the United States pursued statehood for Hawai’i, due to its location in the South Pacific and the need to defend the West Coast of the United States after World War II and the Korean War. Part V discusses the unique status of the District of Columbia which, while not a territory, is a modern corollary to the issues of colonialism, race, and statehood that the territories have historically faced when seeking admission to the Union. Finally, the Article concludes with a discussion about the inability of United States citizens who are residents of the United States territories to elect voting members to Congress and reflects on how this disenfranchisement of majority-minority territories has prevented the United States from becoming a truly representative democracy.
Thursday, April 7, 2022
Immigration Article of the Day: Reading Pereira and Niz-Chavez as Jurisdictional Cases by Geoffrey A. Hoffman
Reading Pereira and Niz-Chavez as Jurisdictional Cases by Geoffrey A. Hoffman, Forthcoming, AILA Law Journal April 2022
The defective NTA problem has important ramifications for respondents in removal proceedings. Two recent Supreme Court decisions, Niz-Chavez v. Garland and Pereira v. Sessions, considered aspects of this issue. This article explores how these cases must be read jurisdictionally. It discusses how the defective NTA problem implicates the jurisdiction of the immigration court versus a mere "claims-processing" rule. Determination of this issue is crucial but yet to be determined by the Supreme Court. Lower courts have addressed it in conflicting ways. Arguments of those who resist a jurisdictional reading prioritize the implementing regulations over the governing statute, and characterize the defective NTA problem as a procedural claim incumbent on the respondent to raise and fully exhaust. Unfortunately, such an approach ignores the fact that DHS has the responsibility for drafting and filing the NTA. The article concludes with a discussion of potential remedies for respondents and the 1.6 million court backlog.
Wednesday, April 6, 2022
One of the cruelest and most devastating Trump-era immigration policies was the Remain in Mexico policy, formally titled the “Migrant Protection Protocols” (MPP). MPP upended decades of established asylum law and practice, forcing asylum seekers to wait in Mexico pursuant to a bilateral agreement between the U.S. and Mexico—where many were kidnapped, raped, tortured, or otherwise exploited or killed for their vulnerability as migrants—while they pursued their immigration cases before U.S. immigration courts. The Biden administration issued a memorandum terminating MPP in June 2021, but two months later, Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas ordered the administration to “enforce and implement MPP” in a nationwide injunction issued in Texas v. Biden. In so ordering, Judge Kacsmaryk broke with long-standing precedent cautioning judicial deference to the political branches in matters implicating foreign affairs and seemed to subordinate the Executive’s interest in controlling such matters to States’ interests in immigration enforcement. This essay is not a normative argument in defense of deference, but rather an account of how the District Court in Texas boldly—and without discussion or acknowledgment—did away with such deference in ordering the Biden administration to re-start MPP, and how the Supreme Court, in refusing to stay the injunction, seemed not to mind.
Tuesday, April 5, 2022
Immigration Article of the Day: "Why Does the Federal Government Get a Pass? Applying Child Welfare Principles to the Circumstances of Migrant Children and Families by Randi Mandelbaum
Why Does the Federal Government Get a Pass? Applying Child Welfare Principles to the Circumstances of Migrant Children and Families by Randi Mandelbaum, American University Law Review, Vol. 71, No. 5, 2022
For too long, the United States has had a separate child-caring system for migrant children and families that operates alongside our domestic child welfare systems. The latter is a robust system focused on the principles of safety, well-being, and permanency; while the former flouts constitutional protections, separates children from parents, and perpetuates a system that is detaining children, warehousing them in large jail-like settings at worst, and sheltering them in large congregate care facilities at best. Children are being harmed, some irreparably.Yet, if our child welfare laws reflect what we know to be proper standards for caring for vulnerable and traumatized children, why is it that these same protections are not afforded to migrant children and families? Why does the federal government get a pass? Does the fact that we are addressing the needs of migrant children and families alter the responsibilities of the agencies charged with caring for the children? What laws exist to hold the federal government accountable? And what would change if child welfare principles were relied upon to guide the circumstances and care of migrant children in the United States? This article seeks to answer these questions and to fully explore the application of child welfare principles in the immigration context, both in terms of family separation policies as well as the care and custody of migrant children. It must be acknowledged that there are serious concerns with how our domestic foster care systems function, particularly the disproportionate number of children and families of color involved within these systems, and the disparate outcome for children and families of color, especially Black and Native American children and families. Yet, we also must recognize that basic child welfare principles, along with constitutional protections and international laws and norms, provide a necessary roadmap for ensuring that the basic rights and needs of migrant children and families are met. For when the government steps into the role of “parent” or caregiver, it must be held accountable for ensuring the safety, well-being, and protection of those in its custody.
Monday, April 4, 2022
Immigration Article of the Day: Sheriffs, State Troopers, and the Spillover Effects of Immigration Enforcement by Huyen Pham and Van H. Pham
As the Biden administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously studied. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements and on concerns that these signatory LEAs engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic stops drawn from the Stanford Open Policing Project, we find that the agreements caused state troopers in North Carolina and South Carolina to stop Hispanic drivers more often than White drivers, to funnel them into the intensive immigration screening conducted by signatory LEAs at the shared jails. Because trooper agencies did not sign the agreements, statistical associations between the presence of agreements and the differential treatment of drivers by race are not contaminated by unobserved confounding factors. Our identification of these previously unnoticed spillover effects raises important policy questions about the program’s impact and the adequacy of existing legal and administrative controls.
Sunday, April 3, 2022
Immigration Article of the Day: Rotten to the Core: Racism, Xenophobia, and the Border and Immigration Agencies by Sarah Porotsky
This Note traces modern xenophobia and racism in U.S. border and immigration policy to colonial times and argues that this legacy is the foundation on which border and immigration agencies, including the Department of Homeland Security (DHS), were built. Subjugation of the racial “other” is evident throughout American history, often taking the form of surveillance and control under the law to address a perceived threat from this group’s presence. This Note reveals how the modern national security system stems from American imperialism and racial subjugation, and the U.S. national security apparatus— which enveloped border and immigration policy and enforcement—was turbo-charged after the 9/11 terrorist attacks. DHS was formed in the wake of the 9/11 attacks and the ensuing War on Terror. Against this backdrop, Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), the border and immigration agencies under the DHS umbrella, have perpetrated atrocities against vulnerable populations. For example, subjecting women and children to sub-human living conditions in detention facilities at the border, rampant excessive force incidents, and well-documented corruption, racism, and bigotry infecting the highest echelons of the border and immigration agencies. This Note argues that the existing institution is so intertwined with racism and xenophobia, and the accompanying human rights abuses, that the only way to achieve meaningful change is to dismantle DHS and reimagine border and immigration policy as we know it.
Sunday, March 27, 2022
COVID-19 restrictions on access to asylum likely violate non-refoulement obligations under international and federal law, and while they are extreme, they are not unique. There is a small but growing body of scholarly literature that rightly argues that such policies are pretextual covers used to enact restrictive immigration policy goals, but these arguments generally arise from an ahistorical perspective. This article positions restrictive COVID immigration policies in a broader historical context and argues that the United States has a long history of weaponizing fear of disease and contagion from migrants to justify restrictive immigration policies. The article offers a historical view both to demonstrate and question this long pattern of dangerous, xenophobic behavior, and to caution against using such blunt and sweeping policies in the future. Part I describes various COVID-19 border closure policies and the ongoing public health and refugee policy discussions surrounding such policies, with a particular focus on United States law. Part II then provides an account of international and United States non-refoulement obligations. Part III situates the current policies within a broader historical framework, providing examples of earlier proposed and enacted immigration policies that sought to restrict migration into the United States on public health grounds.
Saturday, March 26, 2022
Immigration Article of the Day: Decisional Bias in Immigration Courts: Attributes, Results, and Solutions by Emily Duck
There is seeming decisional bias plaguing the United States immigration courts and the country as a whole. Decision rates, particularly denial rates of asylum claims, within immigration courts vary between three percent and one-hundred percent, an extreme disparity not seen in other areas of law today. As a recent Fifth Circuit Court opinion made clear, the judicial system is grappling with the issue of bias among immigration judges, thus creating an urgent need to address this problem. This article examines the history of immigration and asylum seekers, details different types of biases, and correlates the two in order to better understand the extreme discrepancies seen in immigration law. Secondly, the concept of decisional bias is introduced, including factors that contribute and make up decisional bias, and a presentation of possible solutions for combatting decisional bias within immigration courts. In essence, the factors contributing to decisional bias include the polarizing nature of immigration in America, aliens representing themselves pro se, judges’ work experience prior to appointment, and general biases among immigration judges.
Saturday, March 19, 2022
I recently found myself driving towards Beatrice, Nebraska -- traveling from the University of Nebraska to Kansas State as one does when touring colleges that are more-or-less en route during a ND-OK road trip with a HS junior. Anyhoo, along this drive I spotted a sign for the Homestead National Historic Park. I'd not planned to stop until K State, and I'd never heard of this park, but I'm a huge national parks fangirl and had to check it out.
This place was AWESOME.
The main visitor's center, featured in the stunning photo to the right, includes the National Homesteading Museum. There, you'll find story after story about immigrant homesteaders. The museum also includes video stories featuring the arguably first homesteader and the undisputed last homesteader in the United States. Just outside, you'll find the Palmer-Epard Cabin--an 1867 cabin measuring 14 x 16 feet that housed homesteading parents and their TEN KIDS. You can also walk on trails through restored tallgrass prairie.
I knew that immprofs must have already explored the stories of immigrant homesteaders. And a quick trip through Westlaw yielded this exciting find for those looking to pair their no doubt imminent Nebraska road trip with some light law review reading: Kerry Abrams, The Hidden Dimension of Nineteenth Century Immigration Law, 62 Vanderbilt Law Rev 1353, 1403 (2009) ("Laws To Induce Migration").
Friday, March 18, 2022
Immigration Article of the Day: Criminal Law & Migration Control: Recent History & Future Possibilities by Jennifer M. Chacón
The Immigration Article of the Day is "Criminal Law & Migration Control: Recent History & Future Possibilities" by Jennifer M. Chacón published in Daedalus (2022) 151 (1): 121–134.
Here is the Abstract:
Immigration enforcement in the United States has undergone a revolutionary transformation over the past three decades. Once episodic, border-focused, and generally confined to the efforts of a relatively small federal agency, immigration enforcement is now exceedingly well-funded and integrated deeply into the everyday policing of the interior United States. Not only are federal immigration agents more numerous and ubiquitous in the interior, but immigration enforcement has been integrated into the policing practices of state and local officials who once saw their purview as largely distinct from that of federal immigration enforcement agents. This essay briefly explains these developments, from shortly before the passage of the Immigration Reform and Control Act of 1986 through the present day, and assesses their consequences. It includes a brief discussion of the ways states and localities have responded to federal enforcement trends, whether through amplification or constraint.
Thursday, March 17, 2022
Pursuing Citizenship During COVID-19 by Ming Hsu Chen,University of Colorado Law Review, Vol. 93, 2022
This essay serves as an introduction to the 2021 Byron White Center Rothgerber symposium issue and an epilogue to the book Pursuing Citizenship in the Enforcement Era (Stanford Press 2020).
Citizenship is a subject of growing interest in scholarly and policy discussions that aim to go beyond repairing the exclusionary immigration laws of the last several years to building a more inclusionary society. The essays in this symposium issue represent some of the best and brightest voices on citizenship. Their voices hail from law, sociology, political science, and history. They include university scholars, immigration practitioners, and immigrants living their lives in American society.
Monday, March 14, 2022
Immigration Article of the Day: Why Cost/Benefit Balancing Tests Don't Exist: How to Dispel A Delusion that Delays Justice for Immigrants by Joshua J. Schroeder
Why Cost/Benefit Balancing Tests Don't Exist: How to Dispel A Delusion that Delays Justice for Immigrants by Joshua J. Schroeder, West Virginia Law Review, Forthcoming
In 2022, the U.S. Supreme Court will decide whether indefinite immigrant detention without bond hearings is still presumptively unconstitutional under Zadvydas v. Davis. If Zadvydas is overturned, those who raise due process balancing tests during the post-removal-period in immigrant habeas review will need to find new grounds for review. However, since Boumediene v. Bush was decided in 2008, there are several reasons not to despair Zadvydas’s potential passing.
For one, Zadvydas spoke to an extremely narrow subset of cases. It granted a concession under the Due Process Clause to immigrants detained beyond the statutory 90-day removal period. It decided that indefinite immigrant detention is likely unconstitutional, and that therefore the statute must have a judge-made six month time limit after which the government must present evidence of reasonable cause to continue an indefinite detention.
However, in 2018 Jennings v. Rodriguez did not extend Zadvydas’s six month presumption, suggesting it was arbitrary. Jennings went further to rework constitutional avoidance doctrine in such a way that it, and the judicial duty to say what the law is under Marbury v. Madison itself, may no longer exist. Jennings decided that as long as a statute is clear, then it should go into force whether or not it conflicts with the U.S. Constitution.
In other words, Jennings limited Zadvydas to its facts and failed to address the constitutional question it was briefed to answer. Nevertheless, several district courts began to answer this constitutional question themselves by extending due process balancing tests to grant Zadvydas-like relief to asylum seekers. If Zadvydas is overturned, these fractured attempts at providing immigrant habeas corpus could be cut off by the Court.
This article will explain why there is still hope for detained asylum seekers. The U.S. Supreme Court may upset stare decisis, constitutional avoidance, and its duty to say what the law is. It might completely misinterpret what is actually “due” process. But its imprudent behavior—its disrespect for its own precedent—is causing it to lean directly into the Suspension Clause, Boumediene v. Bush, and the pro-immigrant writ of habeas corpus that existed in 1789.
Saturday, March 12, 2022
This Article analyzes changes in the constitutional status of noncitizens in immigration law over the past generation. It shows that notwithstanding the optimistic predictions of scholars, over the last quarter century, with few exceptions, the Supreme Court has been unwilling to impose a constitutional check on the political branches’ immigration policies. Instead, it has reaffirmed and, in some cases, even extended the so-called plenary power doctrine, a doctrine developed to sustain the exclusion of Chinese immigrants in the late 1800s and which effectively removes the entirety of immigration regulation from constitutional scrutiny. The modern Court’s stance toward immigration policies tells a story of rights retrenchment, a scaling back from even the modest gains of the twentieth century. In areas ranging from the right to habeas corpus, procedural due process, discrimination, free speech, and detention, noncitizens today enjoy even fewer constitutional protections than they did at the end of the last century. Far from moving toward a full recognition of the constitutional rights of noncitizens, the modern Court has been moving in the opposite direction.
Importantly, though, these setbacks have not impacted all noncitizens uniformly. Rather, the Supreme Court generally has been willing to recognize at least some constitutional claims raised by lawfully admitted noncitizens, although such willingness has been far from consistent. As to such claims raised by noncitizens present in the U.S. without authorization or noncitizens seeking initial admission, the Court has been decidedly more skeptical. The minimal constitutional protections previously extended to these groups have been jettisoned to a large extent.
The Article also sketches out a path forward from current jurisprudence, one guided by the normative premise that the continued failure to afford constitutional protections to noncitizens undermines fundamental norms of equality and the rule of law. It argues that our constitutional traditions demand that all categories of noncitizens — including legal permanent residents, temporary lawful visitors, unauthorized individuals, and applicants for initial entry — be entitled to freedom from arbitrary detention, notice of the grounds that will render them deportable or inadmissible, a reasoned explanation for governmental action, and a meaningful opportunity to be heard. Moreover, our national values prohibit the government from discriminating against these individuals on the basis of race, ethnicity, religion, or speech. It acknowledges, however, that classifications based on national origin may be appropriate in limited circumstances. Such reforms would come a long way toward bringing immigration law into the fold of American public law norms.