Notice & Comment

Rethinking Immigration Exceptionalism(s), by David S. Rubenstein

Donald Trump’s suggestion that we temporarily ban Muslim immigrants from entering the country sent shockwaves through the American psyche. Yet even more shocking, to some, is that Trump’s idea might be constitutional. For more than a century, the Supreme Court has crafted and maintained special doctrines for immigration that depart from mainstream legal norms. If banning Muslim immigrants is constitutional, immigration exceptionalism is the reason why.

Although the Trump example concerns constitutional rights, it provides important context for this on-line symposium, which asks whether immigration should also be treated exceptionally for purposes of administrative law. The Supreme Court’s recent grant of certiorari in United States v. Texas offers an opportunity to rethink this question, and to rethink immigration exceptionalism more generally.

In Texas, the Court will review the Obama administration’s Deferred Action for Parental Accountability (DAPA) program, which the Fifth Circuit preliminarily enjoined on procedural and substantive grounds under the Administrative Procedure Act. When petitioning for certiorari, the United States’ reply brief framed Texas as a case “that implicates fundamental questions of standing, separation of powers, federal immigration authority, and administrative law . . . .” To pile on, however, we might also ask the following: Do all of these “fundamental questions” warrant exceptional treatment? None of them? Just some of them? And if so, which ones, and why not the others?

For decades, scholars have debated whether immigration should be treated exceptionally in the law as pertains to specific doctrinal enclaves and institutional arrangements—for example, in regard to rights, or federalism, or separation of powers, or administrative law, or subparts thereof. Yet despite the impressive academic attention paid to immigration exceptionalism over the years, still missing is an organizing theory for how to sort exceptionalism within and across these contextual dimensions. Which is to ask: how should we split the exceptionalism atom? The question is hard because of the stakes involved. Immigration exceptionalism does not answer what to do about our broken immigration system. But, perhaps as important, exceptionalism informs the range of choices, which institutions of government get to decide, and by what legal process.

In a forthcoming project, my co-author and I suggest a shift in how scholars engage questions of immigration exceptionalism moving forward; from a context-specific approach to a holistic one that looks across contextual dimensions. Once we expand the frame to immigration exceptionalism(s)—and perhaps only then—can we see how the Court’s various strands of exceptional immigration doctrines interact with each other, and with politics, on the ground. As we set out to explain, the Court’s exceptional immigration doctrines share a common root system of supporting rationales—such as plenary power, national sovereignty, foreign affairs, federal exclusivity, and institutional competence—all of which tend to be doctrinally agnostic. Accordingly, the conventional reasons for giving immigration special treatment in any one context can, and do, bleed into other contexts in unintended and potentially undesired ways.

In Texas, and more generally, the question of whether immigration should be treated exceptionally for purposes of administrative law is independently important. But, my suggestion here, is that how we answer that question may have implications for other immigration settings, including federalism (can Arizona have its own immigration policy?); constitutional rights (can the federal government ban Muslim immigrants?); and separation of powers (can the Executive unilaterally grant legal reprieve to millions of undocumented immigrants?). And, returning full circle, whether immigration should be treated exceptionally for one or more of these constitutional purposes may have implications for administrative law.

This complicates matters, but the issues facing us today are complicated. Consider this puzzle: can the Executive branch’s immigration enforcement policies (e.g., DAPA) not have the “force of law” for purposes of separation of powers and/or administrative law, yet have the “force of law” for purposes of preempting state policies that try to resist? Surely, the answer to this question depends on whether immigration is always, never, or sometimes exceptional.

To set expectations, our forthcoming project does not supply the missing meta-theory of immigration exceptionalism. Instead, we shine a spotlight on that conceptual void, and explore what it may entail for the future of immigration theory and advocacy. With so much immigration policy up for grabs across all levels of government, the age-old question of whether immigration should be treated exceptionally, as to any specific context, may miss more than it captures.

David S. Rubenstein is Professor of Law and Director of the Center for Law and Government at Washburn University School of Law.

This post is part of a week-long online symposium entitled Is Immigration Law Administrative Law?, which is based primarily on a panel by the same name that was part of the 2016 Annual Meeting of the Association of American Law Schools.

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