Disaggregating 'Immigration Law'

87 Pages Posted: 28 Apr 2016 Last revised: 30 Aug 2016

See all articles by Matthew J. Lindsay

Matthew J. Lindsay

University of Baltimore - School of Law

Date Written: 2016

Abstract

Courts and scholars have long noted the constitutional exceptionalism of the federal immigration power, decried the injustice it produces, and appealed for greater constitutional protection for noncitizens. This Article builds on this robust literature while focusing on a particularly critical conceptual and doctrinal obstacle to legal reform — the notion that laws governing the rights of noncitizens to enter and remain within the United States comprise a distinct body of “immigration laws” presumed to be part and parcel of foreign affairs and national security. This Article argues that the U.S. Supreme Court’s recent immigration jurisprudence suggests a willingness to temper, and perhaps even retire, that presumption. In particular, the majority opinions in Zadvydas v. Davis and Padilla v. Kentucky evidence a growing skepticism among the Justices that the regulation of noncitizens comprises a discrete, constitutionally privileged domain of distinctly “political” subject matter that is properly buffered against judicial scrutiny. To rescind that presumption would, in effect, disaggregate the category of “immigration law” for the purpose of constitutional review and subject federal authority over noncitizens to the same judicially enforceable constitutional constraints that apply to most other federal lawmaking. The disaggregation of immigration law would thus give full expression to noncitizens’ constitutional personhood. Foreign policy and national security considerations would continue to serve as constitutionally viable warrants for laws burdening noncitizens, but Congress and the President would no longer enjoy the extraordinary judicial deference that they currently receive as a matter of course.

Keywords: Immigration, exceptionalism

JEL Classification: K39

Suggested Citation

Lindsay, Matthew J., Disaggregating 'Immigration Law' (2016). Florida Law Review, Vol. 68, pp. 181-266, 2016; University of Baltimore School of Law Legal Studies Research Paper No. 2016-13. Available at SSRN: https://ssrn.com/abstract=2771264

Matthew J. Lindsay (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

HOME PAGE: http://law.ubalt.edu/template.cfm?page=1346

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