Immigration Exceptionalism

72 Pages Posted: 12 Feb 2016 Last revised: 16 May 2017

See all articles by David S. Rubenstein

David S. Rubenstein

Washburn University - School of Law

Pratheepan Gulasekaram

Santa Clara University School of Law

Date Written: August 2, 2016

Abstract

The Supreme Court’s jurisprudence is littered with special immigration doctrines that depart from mainstream constitutional norms. This Article reconciles these doctrines of “immigration exceptionalism” across constitutional dimensions. Historically, courts and commentators have considered whether immigration warrants exceptional treatment as pertains to rights, federalism, or separation of powers—as if developments in each doctrinal setting can be siloed. This Article rejects that approach, beginning with its underlying premise. Using contemporary examples, we demonstrate how the Court’s immigration doctrines dynamically interact with each other, and with politics, in ways that affect the whole system. This intervention provides a far more accurate rendering of how immigration exceptionalism translates into practice. By simultaneously accounting for rights, federalism, and separation of powers, our model captures a set of normative tradeoffs that context-specific appraisals have dangerously missed. For better and worse, the doctrines of immigration exceptionalism can operate very differently in combination than they do in isolation. Moreover, our expanded frame offers new insights on controversies arising at the intersection of constitutional dimensions, including the recent landmarks of United States v. Texas, Arizona v. United States, and President Trump’s executive orders issued in his first few weeks in office. Indeed, the transition between Presidents with drastically different views on immigration crystallizes the types of tradeoffs the Article highlights.

Keywords: immigration, plenary power, exceptionalism, normalization, constitution, federalism, separation of powers, preemption, DAPA, DACA, United States v. Texas, Arizona v. United States, travel ban, sanctuary cities

Suggested Citation

Rubenstein, David S. and Gulasekaram, Pratheepan, Immigration Exceptionalism (August 2, 2016). Northwestern University Law Review, Vol. 111:3. Available at SSRN: https://ssrn.com/abstract=2730956 or http://dx.doi.org/10.2139/ssrn.2730956

David S. Rubenstein (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States
785-670-1682 (Phone)

Pratheepan Gulasekaram

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408.554.4188 (Phone)

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