The New Migration Law: Migrants, Refugees, and Citizens in an Anxious Age
105 Cornell Law Review 457 (2020)
93 Pages Posted: 31 Mar 2020 Last revised: 8 Jul 2020
Once every generation or so, entire fields of law require a full reset. We need to rethink basic premises, ask new questions, and even recast the role of law itself. This moment has come for the law governing migration. Seasoned observers of immigration and refugee law have developed answers to core questions that emerged a generation ago. But their answers often fail to engage coherently with the daunting challenges posed by migration in this anxious age. To try to do better, I undertake four inquiries. In isolation they may seem familiar, but I combine them here in new ways to find a path forward.
Part I starts by analyzing how U.S. immigration law and immigrants’ rights have come to be argued in civil rights terms. This trend reflects a nation-centered perspective on migration and justice that has tried—though often failed—to expand legal protections for noncitizens, including noncitizens without lawful status. But viewing immigration law through a civil rights lens has limits and costs, not only for migrants and noncitizen residents, but also for longtime U.S. citizens.
Part II examines “forced migrants”—people fleeing dire situations under duress. A civil rights framework misses much of what makes their claims so compelling. Refugee law emerged in the mid-twentieth century to address their plight, but only as a narrow exception that did not challenge the basic ideas of national sovereignty and borders. Refugee law is too narrow legally and too fragile politically to deal coherently with the many forced migrants who do not fit the formal definition of “refugee.”
Part III responds by sketching a broader role for migration law. I start by asking: what is the relationship between temporary and permanent admissions, and what is the relationship between migration and citizenship? The answers depend on both why people migrate and why they want to stay in destination countries or instead return. What matters are conditions in countries of origin, especially security, governance, human rights, and economic development. Migration law has too often left these topics to ad hoc arrangements that can do as much harm as good. Here the new migration law can play a constructive role that is as yet untapped.
Just as Part III asks what causes migration, Part IV considers what migration causes. In destination countries, politics often reflect anxieties about immigration—much of it expressed in economic terms, but often fundamentally cultural, racial, or religious anxieties. Addressing economic anxieties is essential for exposing cultural, racial, or religious anxiety for what it is. This effort requires correcting a serious shortcoming of a civil rights approach to migration: its tendency to neglect economic justice inside destination countries.
These four inquiries combine to draw a roadmap for the new migration law.
Keywords: immigration law, immigrants' rights, civil rights, refugee law, asylum, human rights, citizenship, temporary workers, international economic development, economic inequality
Suggested Citation: Suggested Citation