Choosing Immigrants, Making Citizens
14 Pages Posted: 1 Feb 2007
This piece comments on The Second Order Structure of Immigration Law by Adam Cox and Eric Posner, which appears with it in volume 59 of the Stanford Law Review. According to Second Order Structure, immigration law questions may concern "first order" or "second order" structure. First-order structure has three dimensions: the number of immigrants, their type, and their terms of admission. The central second-order challenge is how to screen in only applicants who satisfy first-order criteria. This requires deciding whether to screen immigrants on the basis of criteria known before arrival (ex ante), or after they have lived in the host country for a period of time (ex post).
To evaluate the analysis in Second Order Structure, I explain that immigration law affects a wide range of people from the undocumented to lawful nonimmigrants to permanent residents to naturalized citizens, who move over time from one status to another. It follows that immigration law poses a basic choice between two frames of reference. One focuses on choosing immigrants (acquisition of lawful status), and the other on making citizens (the acquisition of citizenship). Even when Second Order Structure seems to address the full spectrum of status and time in immigration and citizenship, it adopts choosing immigrants as its frame of reference, and this frame limits the application of some of its central arguments. Second Order Structure persuasively addresses only undocumented immigrants. Its analysis is much less convincing when applied to noncitizens who are lawfully in the United States.
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