Less than the sum of its parts: institutional realities and legal aspirations in early twenty-first century American immigration

Abstract

This essay considers the implications of some of the legal and institutional forces shaping immigration in the early twenty-first century, and explores what the character of the American system implies for citizenship and migration in an advanced industrial democracy with a complex regulatory state. The essay argues, first, that immigration law must be understood not as a raw reflection of mass public attitudes or a carefully reasoned prescriptive scheme, but instead as a politically generated, fractured system allocating benefits and burdens among a variety of constituents and public agencies. This allocation plainly affects more than just actual or potential migrants. It also shapes the lives of employers, law enforcers, politicians, and the larger public of American citizens. These interactions showcase how much the future of the nation-state may depend not only on seemingly inexorable forces reshaping the international system, but on how law is understood by the public, adjudicated by courts, and enforced by public organizations. Put differently, how much even powerful nation-states are able to shape their context heavily depends on often-tenuous compromises at the intersection between law, politics, and organization.

Keywords::

• institutions
• organizations
• US immigration law
• implementation
• political economy

Acknowledgements

I am grateful to Kyle Maurer and Warner Sallman for helpful research assistance, and to Alex Aleinikoff, Dave Martin, Esther Olavarria, and John Skrentny for thoughtful perspectives. Needless to say, they are entirely absolved from all liability for what is in these pages.

Notes

^1. ‘The starting point for theorizing about immigration policy is an understanding of the distinctiveness of international migration itself as a social phenomenon’ (Zolberg 2006, 11).

^2. On immigration enforcement, see MPI (2005). Regarding public support for the Arizona law, see Pew Center for the People and the Press (2010). For a discussion of Arizona's law, see Chishti and Bergeron (2010).

^3. Cf. Chae Chan Ping v. United States, 130 U.S. 581 (1889) (‘The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time [exists] when, in the judgment of the government, the interests of the country require it’)(emphasis added).

^4. See, e.g., INS v. Chadha, 462 U.S. 919 (1983).

^5. See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001) (reflecting disagreements about the availability of habeas corpus relief for aliens detained under immigration statutes); and (Cox and Rodriguez (2009) (addressing debates over the scope of executive power to control immigration law and policy).

^6. Medellin v. Texas, 552 U.S. 491 (2008) (discussing US responsibilities under the Vienna Convention on Consular Notification); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating a state law denying funding of education for undocumented students).

^7. This is a complex subject, however, and one where doctrinal subtleties implicate continued legal developments. See, for example, Motomura (1990).

^8. Cf. Sale v. Haitian Centers' Council, 509 U.S. 155 (1993).

^9. Though note that in recent years the plenary power doctrine has arguably been subjected to a range of doctrinal refinements resulting in some significant erosion (as the courts have grown more accepting of constitutional claims). See Aleinikoff (2002, 153–165).

^10. See also Plyler v. Doe, 457 U.S. 202 (1982).

^11. This situation is at least somewhat evocative of broad public participation in a few other issues, such as public safety, rather than the treatment of the issue as the province of experts designing a space shuttle or an elaborate claim compensation scheme.

^12. I realize there are some complexities in working through the full social welfare calculus, particularly if one considers the impact on sending as well as receiving countries. What is relevant in this context is the poor fit between plausible versions of Americans' economic interests and the day-to-day operation of its immigration system on potential skilled immigrants.

^13. On the costs of border enforcement, see MPI (2005). On public frustration with the existing system, see Pew Center for the People and the Press (2007).

^14. Arizona v. United States, 567 U.S. (2012).

^15. Arizona v. United States, 567 U.S. (2012).

^16. For an example, see Adamson (2006, 35). On innovation, a recent study, for example, shows how a 1% increase in immigrant college graduates is associated with an increase in patents per capita of about 15% – without crowding out nonimmigrant inventors (Hunt and Gautheir-Loiselle 2008).

^17. Different agendas exist at the US Attorney's Office, ICE, main DHS, State, FBI, and the intelligence community; relative lack of coordination between financial intelligence and terrorist mobility; system designed to allow local and lower-level priorities to affect enforcement action (e.g., US Attorney decisions not to prioritize, in some cases, the charging of employers after workplace raids).

^18. See Zolberg (2006, 329).

^19. In the case of employers, the central role they play in selecting individuals for employment-based visas, and in the case of advocates, the relatively large number of family-based permanent resident visas.