• August 9, 2012
    Deportation Law and the New American Diaspora
    Daniel Kanstroom

    By Daniel Kanstroom, Professor of Law at Boston College Law School

    Good news: The major U.S. immigration enforcement agency has reported that “The border has been secured.” Bad news: That was in 1955 and nothing similar has been repeated since. Worse news: INS also recognized that “the prevention of illegal entries…is, in the long run, more economical and more humane than the expulsion process.” Worst news: The undocumented population now approximates 12 million. Despite recent Administration initiatives aimed at so-called “Dreamers” (the most innocent and the “best and the brightest” among the undocumented), massive deportation enforcement remains the dominant reality. Most frustrating news: No set of public policy issues is as widely misunderstood and as intractably resistant to rational solution. A virtual consensus among experts in the field as to comprehensive visa reform including work visas that match the realities of the labor market, better border control, some sort of legalization program for those already here, and flexible future enforcement discretion has yielded no legislation.

    Meanwhile, the United States continues a radical deportation experiment of unprecedented size and ferocity. The experiment has now continued for more than a decade. It is time to consider what it has accomplished and what it has wrought. The story is grim: deportation has cost much, achieved little, and caused tremendous pain and suffering. It is also widely misunderstood. Few realize, for example, that many deportees are not “illegal aliens.” All over the world, hundreds of thousands -- maybe millions -- of former U.S. legal permanent residents, people with green cards, families, and jobs in the United States find themselves scattered in an odd, unplanned new American diaspora. 

    Deportation has developed into a huge, expensive, and dangerous enterprise. If we count deportation events (including various mechanisms for what are technically called “removals” and “returns” through which a person is compelled to leave U.S. soil by government agents) over the last twenty years, the total number is around 25 million

    How did this experiment begin?

  • June 27, 2012
    Guest Post

    By Pratheepan Gulasekaram & Karthick Ramakrishnan. Prof. Gulasekaram teaches Constitutional and Immigration Law at Santa Clara University, and Prof. Ramakrishnan teaches in the Political Science department at University of California, Riverside.  The empirical work referenced in this post is part of a co-authored book project exploring the political genesis and legal implications of state and local immigration laws.

    Defiant in his Arizona v. U.S. dissent, Justice Antonin Scalia posits a surprising theory of immigration law, arguing that even in modern constitutional interpretation, an individual state can exclude persons from entering its borders and can have its own immigration policy. His novel theory appears to rest on assumptions about the demographic “facts” of unauthorized immigration and the public policy problems ostensibly faced by Arizona.  He confidently maintains that the state “bears the brunt of the country’s illegal immigration problem,” and follows that suggestion with several other claims regarding the “siege” that citizens may feel when illegal immigrants invade property, use social services, and endanger citizen lives.

    Quite rightly, Judge Richard Posner of the Seventh Circuit took Scalia to task for these unsupported statements in a recent article for Slate.

    But Scalia is not alone in making these unproven assumptions about the relationship between immigration-related demographic change, the public policy concerns created by that change, and the necessity of state and local response. Indeed, both former Arizona governor Janet Napolitano (now, Secretary of the Department of Homeland Security) and her successor Jan Brewer cited the unique issues faced by Arizona as justifications for the state’s mandatory E-Verify law and SB 1070.  Even Justice Anthony Kennedy, in the first sentence of his majority opinion in Arizona, presumes that the state enacted SB 1070 to address the “pressing issues” related to a large population of undocumented immigrants. 

  • June 26, 2012

    by Jeremy Leaming

    For what seems like decades a conventional wisdom, built largely by a handful of Supreme Court correspondents, has held that Justice Antonin Scalia is the high court’s most brilliant, disciplined, albeit ideological, member. He is also, according to this conventional wisdom, deliciously witty.  

    But thankfully, the Web has altered the narrative by giving forums to an array of writers who have been quick to poke holes in an increasingly tiresome and shoddy line of reporting. (It should be noted, however, that longtime Supreme Court correspondent Linda Greenhouse is not among the gaggle that built the fawning picture of a straight-shooting justice with a jolly wit. Indeed Greenhouse has taken Scalia’s sloppy work to task on numerous occasions.)

    Moreover the aging Scalia is simply not helping to advance the conventional wisdom. Though in fairness, he hardly seems concerned with what reporters, bloggers think or write about him. His constituency is made up of right-wing politicos and activists. He’s the Koch brothers’ justice.

    With each passing high court term, Scalia seems to becoming wackier, more out-of-touch, increasingly shrill. And he’s being called out for his nuttiness with growing frequency.

    In a piece for Salon, Paul Campos, for instance, is not mincing words about the tottering justice. Scalia, Campos writes, “has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy.”

    Campos was referring to Scalia’s concurring, dissenting opinion issued in Arizona v. U.S. where a majority of the justices invalidated three provisions, and weakened a fourth, of Arizona’s harsh anti-immigrant law. In his opinion Scalia not only railed against alleged dangers undocumented persons pose to Arizona, but also ruminated about state sovereignty and took a shot at President Obama’s actions on immigration policy.

  • June 26, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School  

    In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

    Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

    Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

    Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

  • June 25, 2012

    by Jeremy Leaming

    Although the Supreme Court invalidated three key provisions of Arizona’s outlandishly harsh anti-immigrant law, it left in place for the moment the law’s ignoble “show me your papers” measure.

    The majority in Arizona v. United States invalidated three provisions of the law, SB 1070, saying they could not be enforced because they conflicted with the federal government’s constitutional authority to set policy on immigration matters. Those provisions included Section 3 criminalizing the failure of persons to carry immigration documents; Section 6, barring undocumented immigrants from seeking work; and Section 6, allowing warrantless arrests when an officer has probable cause to believe a person who has committed a crime is undocumented.

    Justice Anthony Kennedy writing for the majority said the “national government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the nation’s meetings its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse.”

    But Section 2 (B), the “show me your papers” provision was upheld. The provision requires police to make a “reasonable attempt … to determine the immigration status” of persons stopped, arrested or detained on some other legitimate basis if “reasonable suspicion exists that the person” is “unlawfully present in the United States.”

    Regardless of how that provision is interpreted, Kennedy said it “only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption – at least absent some showing that it has other consequences that are adverse to federal law and its objectives.”

    Kennedy, however, said Arizona’s “show me your papers” provision may yet be susceptible to preemption or constitutional challenges. He said today’s opinion “does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.”