Archive for the ‘Immigration’ Category

Stanford Law Review Online: Of Arms and Aliens

posted by Stanford Law Review

The Stanford Law Review Online has just published a Note by Anjali Motgi entitled Of Arms and Aliens. Ms. Motgi examines, in light of the Newtown tragedy in December, how the Second Amendment has continued to fuel debate over a topic of national importance: the rights of illegal immigrants.

Still, the questions that compelled the Tenth Circuit not to touch the Second Amendment issue—including whether gun ownership is a “private right[] not generally denied aliens, like printing newspapers or tending a farm,” or is, like voting, limited to citizens—must one day be answered. Meanwhile, district courts have offered their own analyses of the meaning of “the people.” And this issue is one that could potentially align normally opposed constituencies: conservatives who seek to prevent government abuse by supporting the fundamentality (and therefore the expansive scope) of the Second Amendment as an individual right, and progressives who seek to expand our notion of community by increasing the panoply of rights to which immigrants have access.

She concludes:

Behind all of this dwells the idea that we are a “people,” a notion that undergirds not just diverse areas of American jurisprudence but also our public imagination. Bracketing the controversy over what the Second Amendment protects—possession of semiautomatic assault rifles and large stores of ammunition or something less—to consider the co-occurrence of the Fourth Circuit ruling in Carpio-Leon and the Sandy Hook tragedy raises a peculiar juxtaposition around the “who” of this right: is a father who keeps a rifle at home to protect his wife and three children, or a ranch hand who carries a gun to guard farm animals against predators, less a member of “the people” than a suburban divorcée with a passion for trips to the shooting range? Whatever the Founders meant in drafting the Second Amendment, it seems improbable that they foresaw that it would become a locus for public dialogue about the boundaries of the national community.

Read the full article, Of Arms and Aliens at the Stanford Law Review Online.

  April 19, 2013 at 10:52 pm   Posted in: Constitutional Law, Immigration   Print This Post   2 Comments

Naturalization Ceremony

posted by Gerard Magliocca

I’m going to be attending my first naturalization ceremony soon, and I was surprised to see some of the questions they ask on the form that is required of people who have passed the citizenship test and are going to take the oath. For example:

“Since your interview, have you joined any organization, including the Communist Party, or become associated or connected therewith in any way?”

Why are we still asking people if they are communists? Has nobody looked at this form since the 1950s? Here’s another odd one:

“Since your interview, have you knowingly committed any crime or offense, for which you have not been arrested?”

Does anyone actually say yes? Or how about:

“Since your interview, have you practiced polygamy, received income from illegal gambling, been a prostitute, procured anyone for prostitution or been involved in any other unlawful commercialized vice, encouraged or helped any alien to enter the United States illegally, illicitly trafficked in drugs or marijuana, given false testimony to obtain immigration benefits, or been a habitual drunkard?”

The last bit about drunkenness sounds like something out of colonial times. Someone in immigration services really should review these questions.

  January 8, 2013 at 10:45 am   Posted in: Immigration   Print This Post   5 Comments

The Yale Law Journal Online: A Defense of Immigration-Enforcement Discretion

posted by Yale Law Journal

The Yale Law Journal Online has just published A Defense of Immigration Enforcement Discretion: The Legal and Policy Flaws of Kris Kobach’s Latest Crusade, an essay by David A. Martin. The essay disputes the legal claims set forth in a recent lawsuit that seeks to invalidate a policy of the Department of Homeland Security. The policy gives protection against deportation to unauthorized immigrants who came to the country as children, and the Department defends it as an exercise of prosecutorial discretion. The plaintiffs claim that no such discretion exists, because the Immigration and Nationality Act, as amended in 1996, requires that virtually all aliens who entered without inspection be detained and placed in removal proceedings whenever encountered by immigration agents. Closely examining the statutory language and drawing on the author’s own extensive involvement as General Counsel of the Immigration and Naturalization Service in the 1996 consideration of legislative amendments and administrative implementation, the essay makes the case that the plaintiffs’ argument misunderstands both Congress’s intent and consistent agency practice before and after those amendments.

Preferred Citation: David A. Martin, A Defense of Immigration-Enforcement Discretion: The Legal and Policy Flaws in Kris Kobach’s Latest Crusade, 122 YALE L.J. ONLINE 167 (2012), http://yalelawjournal.org/2012/12/20/martin.html.

  December 24, 2012 at 4:59 pm   Posted in: Immigration, Law Rev (Yale), Uncategorized   Print This Post   No Comments

Stanford Law Review Online: The Hunt for Noncitizen Voters

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Fatma Marouf entitled The Hunt for Noncitizen Voters. Professor Marouf writes that recent efforts by several states to purge noncitizens from their voter rolls may prevent many more citizens than noncitizens from voting:

Over the past year, states have shown increasing angst about noncitizens registering to vote. Three states—Tennessee, Kansas, and Alabama—have passed new laws requiring documentary proof of U.S. citizenship in order to register. Arizona was the first state to pass such a requirement, but the Ninth Circuit struck it down in April 2012, finding it incompatible with the National Voter Registration Act. Two other states—Florida and Colorado—have waged aggressive campaigns in recent months to purge noncitizens from voter registration lists. These efforts to weed out noncitizen voters follow on the heels of legislation targeting undocumented immigrants in a number of states. Yet citizens may be more harmed by the new laws than noncitizens, especially since the number of noncitizens registering to vote has turned out to be quite small. Wrongfully targeting naturalized or minority citizens in the search for noncitizens could also have negative ramifications for society as a whole, reinforcing unconscious bias about who is a “real” American and creating subclasses of citizens who must overcome additional hurdles to exercise the right to vote.

She concludes:

Some of the laws require voters to show government-issued photo IDs, which 11% of U.S. citizens do not have. Some have placed new burdens on voter registration drives, through which African-American and Hispanic voters are twice as likely to register as Whites. Others restrict early voting, specifically eliminating Sunday voting, which African-Americans and Hispanics also utilize more often than Whites. In two states, new laws rolled back reforms that had restored voting rights to citizens with felony convictions, who are disproportionately African-American. Each of these laws is a stepping-stone on the path to subsidiary citizenship. Rather than creating new obstacles to democratic participation, we should focus our energy on ensuring that all eligible citizens are able to exercise the fundamental right to vote.

Read the full article, The Hunt for Noncitizen Voters at the Stanford Law Review Online.

  October 31, 2012 at 9:30 am  Tags: Civil Rights, Constitutional Law, Election law, Immigration, Politics, voter rights  Posted in: Civil Rights, Constitutional Law, Election Law, Immigration, Law Rev (Stanford), Politics   Print This Post   No Comments

Stanford Law Review, 64.6 (2012)

posted by Stanford Law Review

Volume 64 • Issue 6 • June 2012

Articles Beyond DOMA: Choice of State Law in Federal Statutes William Baude 64 Stan. L. Rev. 1371 Does Shareholder Proxy Access Damage Share Value in Small Publicly Traded Companies? Thomas Stratmann & J.W. Verret 64 Stan. L. Rev. 1431 Notes Pinching the President’s Prosecutorial Prerogative: Can Congress Use Its Purse Power to Block Khalid Sheikh Mohammed’s Transfer to the United States? Nicolas L. Martinez 64 Stan. L. Rev. 1469 The American Jury: Can Noncitizens Still Be Excluded? Amy R. Motomura 64 Stan. L. Rev. 1503 Book Review Infringement Conflation Peter S. Menell 64 Stan. L. Rev. 1551

  July 3, 2012 at 5:57 pm   Posted in: Book Reviews, Constitutional Law, Corporate Law, Courts, Current Events, Immigration, Intellectual Property, Law Rev (Stanford), Law Rev Contents, LGBT, Politics, Securities   Print This Post   No Comments

Stanford Law Review Online: Discrimination, Preemption, and Arizona’s Immigration Law

posted by Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.

  June 18, 2012 at 8:00 am  Tags: Civil Rights, Constitutional Law, discrimination, Immigration, preemption, Supreme Court  Posted in: Civil Rights, Constitutional Law, Immigration, Jurisprudence, Law Rev (Stanford), Supreme Court   Print This Post   No Comments

Pretext, the Rule of Law, and the Good Official

posted by Jeffrey Kahn

How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials?  If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext. 

Sometimes we don’t care very much.  In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road).  Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car.  One lesson of this case is that you should always signal before making a turn.  Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.”  In other words, a green light to pretextual traffic stops.

Sometimes, we care a great deal.  In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.”  Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.”  Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.”  The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.

Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law?  When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one?  My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself.  Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands.  Pretextualism may be habit-forming and, like cigarettes, unhealthy.

After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action.  One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice.  Surprisingly, that case foretold and influenced the “easy” Whren case.  The other involves a former college football player caught up in the current “War on Terror.”  That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.

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  November 29, 2011 at 3:15 pm   Posted in: Administrative Law, Civil Rights, Constitutional Law, Criminal Procedure, Immigration, Supreme Court, Uncategorized   Print This Post   No Comments

The Know-Nothing Party Platform

posted by Gerard Magliocca

I have now reached the year 1856 in the Bingham biography, which means I am working through some interesting materials on the Know-Nothing (or American) Party, which was a strong nativist and anti-Catholic movement that competed with the Republicans in 1854 and 1856. (Bingham pandered to anti immigrant sentiment off and on throughout his congressional career.)  Some of the planks in the Know-Nothing platform are startling and had credibility because Millard Fillmore, the former President, was the Party’s presidential nominee.  For example:

–  ”Americans must rule America, and to this end native-born citizens should be selected for all State, Federal, and municipal offices of government employment, in preference to all others.”

–  ”A change in the laws of naturalization, making a continued residence of twenty-one years, of all not heretofore provided for, an indispensable requisite for citizenship hereafter, and excluding all paupers, and persons convicted of crime, from landing upon our shores.”

  October 19, 2011 at 5:41 pm   Posted in: Immigration, Uncategorized   Print This Post   2 Comments

From Safety Net to Dragnet

posted by Frank Pasquale

The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime. Read the rest of this post »

  August 19, 2011 at 10:17 pm   Posted in: Criminal Law, Culture, Current Events, Immigration, Law and Inequality, Privacy   Print This Post   One Comment

UCLA Law Review Vol. 58, Issue 5 (June 2011)

posted by UCLA Law Review

Volume 58, Issue 5 (June 2011)

Articles

Melville B. Nimmer Memorial Lecture: What Is a Copyrighted Work? Why Does It Matter?	Paul Goldstein	1175
Equal Opportunity for Arbitration	Hiro N. Aragaki	1189
Asymmetrical Jurisdiction	Matthew I. Hall	1257

Comments

Multiracial Work: Handing Over the Discretionary Judicial Tool of Multiracialism	Scot Rives	1303
Give Me Your Tired, Your Poor, and Your Queer: The Need and Potential for Advocacy for LGBTQ Immigrant Detainees	CT Turney	1343

  June 29, 2011 at 11:42 pm   Posted in: Immigration, Intellectual Property, Law Rev (UCLA), LGBT, Race   Print This Post   No Comments

YLJ Online Symposium: A Republic of Statutes

posted by Yale Law Journal

  March 31, 2011 at 1:25 pm   Posted in: Conferences, Government Secrecy, Health Law, Immigration, Law Rev (Yale)   Print This Post   No Comments

Randomization, Intake Systems, and Triage

posted by Jaya Ramji-Nogales

Thanks to Jim and Cassandra for their carefully constructed study of the impact of an offer from the Harvard Legal Aid Bureau for representation before the Massachusetts Division of Unemployment Assistance, and to all of the participants in the symposium for their thoughtful contributions.  What Difference Representation? continues to provoke much thought, and as others have noted, will have a great impact on the access to justice debate.  I’d like to focus on the last question posed in the paper — where do we go from here? — and tie this in with questions about triage raised by Richard Zorza and questions about intake processes raised by Margaret Monsell.   The discussion below is informed by my experience as a legal service provider in the asylum system, a legal arena that the authors note is  strikingly different from the unemployment benefits appeals process described in the article.

My first point is that intake processes vary significantly between different service providers offering representation in similar and different areas of the law.  In my experience selecting cases for the asylum clinics at Georgetown and Yale, for example, we declined only cases that were frivolous, and at least some intake folks (yours truly included) preferred to select the more difficult cases, believing that high-quality student representation could make the most difference in these cases.  Surely other legal services providers select for the cases that are most likely to win, under different theories about the most effective use of resources.  WDR does not discuss which approach HLAB takes in normal practice (that is, outside the randomization study).  On page twenty, the study states that information on financial eligibility and “certain additional facts regarding the caller and the case”  are put to the vote of HLAB’s intake committee.  On what grounds does this committee vote to accept or reject a case?  In other words, does HLAB normally seek the hard cases, the more straightforward cases, some combination, or does it not take the merits into account at all?

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  March 28, 2011 at 9:14 pm   Posted in: Behavioral Law and Economics, Civil Rights, Empirical Analysis of Law, Immigration, Law Practice, Law Rev (Yale), Symposium (What Difference Representation), Uncategorized   Print This Post   One Comment

The Old Illegitimacy Part II: Facilitating Societal Discrimination

posted by Solangel Maldonado

In a prior post, I demonstrated that the law makes explicit distinctions between marital and nonmarital children and denies the latter benefits automatically granted to its marital counterparts.  The harms resulting from the law’s continued distinctions on the basis of birth status are significant.  For example, these distinctions impair nonmarital children’s ability to acquire property and wealth.  While individuals often use part of their inheritance for a down payment on a home, to start a business, or to fund their own children’s education, nonmarital children are denied the same access to intergenerational wealth.

These legal distinctions may also stigmatize nonmarital children. Denying nonmarital children access to post-secondary educational support that is granted to marital children suggests that the former are less deserving of support.  It also signals that fathers’ responsibilities to their children differ depending on whether they are marital or nonmarital.  Denying U.S. citizenship to the children of unmarried fathers unless their fathers expressly agreed to support them similarly signals that nonmarital children are not automatically entitled to support.

These legal distinctions also facilitate societal discrimination by encouraging individuals (either intentionally or otherwise)  to make negative assumptions about unmarried parents and their children.  Many Americans (not just former Gov. Mike Huckabee) believe that it is wrong for unmarried persons to have children.  Seventy-one percent of participants in a recent Pew Research Center study indicated that the increase in nonmarital births is a “big problem” for society and 44% believe that it is always or almost always morally wrong for an unmarried woman to have a child.  Some people assume that unmarried mothers are sexually irresponsible and that their children will be burdens on the public purse.  They also expect nonmarital children to underachieve academically, economically, and socially.

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  March 15, 2011 at 10:27 pm   Posted in: Constitutional Law, Estates and Trusts, Family Law, Immigration   Print This Post   3 Comments

Rejecting Refugees

posted by Jaya Ramji-Nogales

The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security’s Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law’s one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.
We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
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  September 30, 2010 at 6:45 am   Posted in: Administrative Law, Immigration   Print This Post   6 Comments

The Insidious List

posted by Danielle Citron

News recently broke that, in Salt Lake City, Utah, a group calling itself “Concerned Citizens of the United States” sent a memo to local newspapers, radio stations, television outlets, state law enforcement, immigration and DHS agents, and Utah legislators listing over 1,300 alleged “illegal immigrants” who the group believed should be “immediately deported.”  Next to each name appeared the person’s Social Security number, date of birth, address, and, at times, medical information, such as a pregnant woman’s due date.  The group claimed that it “observe[d] these individuals in our neighborhoods, driving on our streets, working in our stores, attending our schools, and entering our public welfare buildings.”  It continued: “We spen[t] the time and effort needed to gather information along with legal Mexican nationals who infiltrate thei social networks and help us obtain the necessary information we need to add them to our list.”  The group then stepped up the volume: “We see a direct relationship between these illegal aliens and the escalation of crime in our communities in the form of drug and alcohol abuse, theft, and domestic violence. . . . They need to go and now.”  The group signed off with this missive: “We will be listening and watching.”

This feels eerily familiar.  In 1997, an anti-abortion group set up a website called Nuremberg Files that revealed abortion providers’ home addresses, birth dates, Social Security numbers, and the names of their childrens’ schools.  The site listed abortion providers who had been wounded in grey and those who had been killed with their names struck in black.  To be sure, the “Concerned Citizens” memo neither threatened nor sought to incite violence as in the Nuremberg case.  Nonetheless, the memo took a hateful “us versus them” turn in suggesting that illegal aliens bear responsibility for increased drug abuse, crime, and domestic violence.  Akin to the Nuremberg Files case, the “Concerned Citizens” invaded the privacy interests of the listed individuals by giving publicity to their Social Security numbers.  While they declined to identify themselves, one imagines that they will be found and could face tort privacy claims.

Aside from its privacy implications, the list seems bent on intimidation, suggesting that the group inflitrated the alleged illegal aliens’ communities and would be “watching.”  Of course, the group could have provided tips to ICE and law enforcement — that would not be troubling.  But the group went so much further than that, sending the list of individuals’ personal information to media of all stripes.  This suggests an agenda to intimidate and bully.

  July 14, 2010 at 11:21 pm   Posted in: Anonymity, Immigration, Privacy   Print This Post   9 Comments

UCLA Law Review Vol. 57, Issue 5 (June 2010)

posted by UCLA Law Review

Volume 57, Issue 5 (June 2010)

Articles

Introduction to the Symposium Issue: Sexuality and Gender Law: The Difference a Field Makes	Nan D. Hunter	1129
Elusive Coalitions: Reconsidering the Politics of Gender and Sexuality	Kathryn Abrams	1135
The Sex Discount	Kim Shayo Buchanan	1149

What Feminists Have to Lose in Same-Sex Marriage Litigation	Mary Ann Case	1199
Lawyering for Marriage Equality	Scott L. Cummings Douglas NeJaime	1235
Sexual and Gender Variation in American Public Law: From Malignant to Benign to Productive	William N. Eskridge, Jr.	1333

Sticky Intuitions and the Future of Sexual Orientation Discrimination	Suzanne B. Goldberg	1375
The Dissident Citizen	Sonia K. Katyal	1415
Raping Like a State	Teemu Ruskola	1477

The Gay Tipping Point

Kenji Yoshino

1537

  July 5, 2010 at 7:12 pm   Posted in: Articles and Books, Constitutional Law, Current Events, Feminism and Gender, History of Law, Immigration, Law and Humanities, Law and Inequality, Law and Psychology, Law Practice, Law Rev (UCLA), Law School, Legal Theory, Politics, Psychology and Behavior, Supreme Court   Print This Post   No Comments

Immigration Federalism: Red and Blue

posted by Robert Schapiro

In a previous post, I discussed some of the federalism implications of Arizona’s recent legislation concerning immigrants.  I noted that in immigration, as in other areas, it is difficult to define enclaves of exclusive state or exclusive federal jurisdiction.  Rather, contemporary federalism entails a dynamic interaction of state and federal authority.

If Arizona’s law constitutes an example of “red state” federalism, a recent announcement by New York’s Governor David Paterson illustrates the “blue state” version of immigration federalism. 

Under federal immigration law, conviction of certain state crimes constitutes grounds for deportation.  But, in many circumstances a subsequent state pardon removes the threat of deportation.  In what The New York Times termed “a major rebuke of federal immigration policy,” Governor Paterson created a panel to assist him in evaluating pardon requests from immigrants subject to deportation based on state convictions.  The Governor characterized some federal immigration laws as “embarrassingly and wrongly inflexible.”  “In New York,” Paterson explained, “we believe in renewal.”

So, now New York has joined Arizona in rebuking federal immigration policy, though from a very different perspective.

Even the United States Supreme Court has gotten into the immigration federalism act.  In Padilla v. Kentucky, decided in March, the Court held that defense counsel’s failure to advise a state criminal defendant that a guilty plea carries a risk of deportation constitutes ineffective assistance in violation of the Sixth Amendment to the United States Constitution.  In what will be one of Justice Stevens’ last majority opinions, he explained that as a matter of federal law, deportation is an “integral part” of the penalty for the state crime.

Padilla confirms the obvious: In immigration, state and federal law are closely intertwined.  What are we to make of this feature of our federal system?  If some are troubled by Arizona’s inhospitable voice, they might find solace in New York’s dulcet tones of ”renewal.”  That counterpoint provides cold comfort to immigrants in Arizona, but then the United States Constitution provides some protection for all people throughout the country. 

Complicated? Yes, but simple would be superior only if we all agreed on the answers.  And we do not.  In the meantime, New York seeks to vindicate its immigrant heritage.

  May 13, 2010 at 9:02 pm  Tags: Constitutional Law, Current Events, federalism, Immigration  Posted in: Civil Rights, Constitutional Law, Current Events, Immigration, Politics, Supreme Court, Uncategorized   Print This Post   4 Comments

Red State Federalism

posted by Robert Schapiro

It is a great pleasure to be a guest blogger.  My current interests center around federalism.  My posts likely will as well.  Here goes.

Did a vision of progressive federalism die in the desert of Arizona?  No, but the recent (anti-)immigration legislation there reveals the Grand Canyon dividing the concept of federalism from particular policy outcomes.

In the wake of a conservative resurgence in national politics, some commentators (including this one) noted the progressive potential of federalism.  We cited examples of “blue state federalism,” in which states stepped into the breach left by federal inaction and provided innovative solutions for problems ranging from climate change to predatory lending, from gay rights to health care.  Here, and elsewhere, I argued that a key to understanding the achievements of the states was to abandon outdated notions of distinct and non-overlapping realms of state and federal prerogative (bye bye dual federalism).  Climate change was not really a federal issue or really a state issue.  Rather, federalism provided an opportunity for both the states and the federal government to address pressing concerns.  Federalism functioned through the dynamic overlap and interaction of state and federal authority.  Or so I argued in my book, Polyphonic Federalism: Toward the Protection of Fundamental Rights.

But where does this leave Arizona?  Or for that matter, the lawsuits filed by numerous state attorneys general against federal health care legislation.  Are these examples of illegitimate state meddling in federal matters or ongoing expressions of dynamic or (as I term it) polyphonic federalism?  The answer is yes.

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  May 5, 2010 at 9:55 am  Tags: Constitutional Law, Current Events, federalism  Posted in: Civil Rights, Constitutional Law, Health Law, Immigration, Politics, Uncategorized   Print This Post   3 Comments

Illegal Immigration and Fugitive Slaves

posted by Gerard Magliocca

One way of thinking about the new Arizona statute on illegal immigration is through a comparison with the debate over state regulation of fugitive slaves during the antebellum period.  Now before the angry comments start pouring in, I’m not saying that people who favor more border security are like slaveowners or that those who are here illegally are like slaves.  What I mean is that in both cases there was a controversial issue that turned on whether there should be exclusive federal authority or a diverse set of state policies.

The Fugitive Slave Clause of the Constitution was implemented initially by the Fugitive Slave Act of 1793.  By the 1830s, though, a number of free states passed laws that made it a crime to catch or aid in the capture of fugitive slaves.  Other free states insisted on certain procedural protections for those alleged to be fugitives, otherwise free African-Americans would be subject to what amounted to legalized kidnapping.

In Prigg v. Pennsylvania, the Supreme Court held that these state statutes were invalid because the Fugitive Slave Clause (even though it was not in Article One, Section gave the federal government exclusive power over the subject.  In other words, states could not legislate at all on this topic — either to help or hinder slave captures.  Chief Justice Taney concurred but argued that state laws that furthered the federal policy by giving aid to slave catchers were not unconstitutional.  One could view the Court’s position as a compromise that attempted to take the entire topic off of the topic even though it was probably inconsistent with preemption principles.  Moreover, in practice slave catchers in the North could not operate well without the protection of state law or the aid of state officials.  (Indeed, Prigg contained language similar to the modern Supreme Court’s anticommandeering doctrine.)

Now we have a similar issue.  States like Arizona want to crack down on illegal immigration.  Others want to be sanctuaries for them and refuse to cooperate with deportations.  One solution to this would be to say that all state regulation of the subject is barred.  That is not neutral with respect to outcomes, but it would channel all reform efforts to Washington.  Or courts could say that only state laws that assist immigration policy as set by Congress is permissible.  Of course, that would require someone to determine what that policy is.  The major problem in immigration policy, it seems to me, is that the country is uncertain what it wants.  Is illegal immigration a harm or a benefit?  Should we be deporting people or giving them amnesty? Thus, courts that go with something other than “states can’t regulate this at all” might have a hard time reasoning their way to a conclusion.

  April 30, 2010 at 6:51 pm   Posted in: Immigration, Uncategorized   Print This Post   No Comments

A Well-Founded Fear of School?

posted by Jaya Ramji-Nogales

Tuesday’s Washington Post discusses an intriguing asylum case: an immigration judge in Memphis granted asylum to a German couple who fled their homeland to avoid its mandatory schooling policy.  Uwe Romeike, along with his wife and five chilren, are evangelical Christians who had decided to homeschool their children both because they believed the public school curriculum to be “against Christian values” and because their children faced violence, bullying, and peer pressure in public schools.  The Romeikes took their children out of school in their home state of Baden-Wuerttemberg in 2006, and paid fines of approximately $10,000 over 2 years for doing so.  That state constitution requires that children attend public or private schools; parents who refuse to comply can face fines or even jail time, or in severe cases, Germany’s highest appellate court ruled that social service officials could remove children from their parents.

There are so many interesting angles to the decision that it’s hard to know where to start.  Some might question whether the ability to choose how to school one’s child is a fundamental human right that should be protected by asylum law.  The German consul for the Southeast U.S. noted that “German parents have a wide range of educational options for their children.”  Should the Romeikes be sent back to Germany on the assumption that they could find a religious school that provided instruction acceptable to their value system?  Under U.S. asylum law, if internal relocation is an option to avoid persecution, applicants must move within their own country to find safety before coming to the United States.  The Romeikes had the option not only of relocating within Germany but also, as citizens of the European Union, of living and working in any member state (some of which allow home schooling and others of which surely offer affordable education that accords with evangelical religious values).

The involvement of the German consul also raises questions about the appropriateness of immigration court as a messenger in foreign affairs.  Romeike’s lawyer said that he took on the case in part because he hoped to influence public opinion in Germany, while the consul defended the law as a policy decision that “ensures a high standard of learning for all children.”  Should our immigration courts be questioning the policy judgments of solidly democratic nations with robust and procedurally fair legal systems?  Asylum has for many years been used as a political tool, for better or for worse, but this seems one step too far.  In any case, I’m interested in readers’ thoughts — are the Romeikes modern-day pilgrims, or is this just another misguided decision by our dysfunctional immigration courts?

  January 29, 2010 at 2:43 pm   Posted in: Immigration   Print This Post   6 Comments

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