Capital Controls as Migrant Controls

119 Pages Posted: 18 Feb 2021 Last revised: 21 Feb 2021

See all articles by Shayak Sarkar

Shayak Sarkar

University of California, Davis - School of Law

Date Written: February 7, 2021

Abstract

The disparate treatment of capital and labor reflects one of globalization’s central asymmetries: the law often allows financial capital, but not people, to move freely across borders. Yet scholars have largely neglected the intersection of these two regimes, the legal restrictions on migrants’ capital, particularly when the migrants themselves are deemed illegal. These restrictions on migrants’ capital abound even while migratory capital generally faces few such restrictions. As such, capital controls may operate as migrant controls.

This Article canvasses established and emerging examples of capital controls as migrant controls and the pressing legal questions these controls raise. Capital is guarded when remittances are taxed, particularly when the taxation is explicitly conditioned on immigration status. Capital is expelled when capital receipts, such as Social Security benefits, are made contingent on departure and non-residency. And capital is marginalized when financial laws require particular identity and immigration documents on penalty of exclusion from key financial services.

As I describe, such taxation, receipt contingencies, and identity requirements often distinguish on the basis of immigration status and implicate core questions in constitutional and immigration law. These questions include the scope of traditional state powers such as taxation; how such controls create unconstitutional choices and conditions; and how statutory and administrative ambiguities in banking law may marginalize migrants. More generally, these controls contribute to our understanding of who—Congress, federal agencies, municipalities and states, or social movements outside the law—controls, and who may legally control, American migration.

Keywords: Financial Regulation, Taxation, Immigration, Banking, Constitutional Law

Suggested Citation

Sarkar, Shayak, Capital Controls as Migrant Controls (February 7, 2021). California Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3781043 or http://dx.doi.org/10.2139/ssrn.3781043

Shayak Sarkar (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
110
Abstract Views
825
rank
308,619
PlumX Metrics