2,239 research outputs found

    The Perpetual Invasion : Past as Prologue in Constitutional Immigration Law

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    Donald Trump ascended to the presidency largely on the promise to protect the American people—their physical and financial security, their culture and language, even the integrity of their electoral system—against an invading foreign menace. Only extraordinary defensive measures, including “extreme vetting” of would-be immigrants, a ban on Muslims entering the United States, and a 2,000-mile-long wall along the nation’s southern border could repel the encroaching hordes. If candidate Trump’s scapegoating of unauthorized migrants and refugees was disarmingly effective, it was also eerily familiar to those of us who study the history of immigration law and policy. Indeed, the trope of an immigrant “invasion” has long been a rhetorical mainstay of American political discourse. Much less well understood, however, is the extent to which the invasion trope has also shaped the federal government’s vast, extra-constitutional, and largely unrestrained authority to exclude or expel noncitizens from the United States. This Article describes the origin of that authority in the nativist movements of the late-nineteenth century, including both the virulent anti-Chinese crusade that culminated in the Chinese Exclusion Act, and the decades-long and ultimately successful campaign to severely curtail the immigration of “new” Europeans from Southern and Eastern Europe. The legacy of this history endures to the present, as the Supreme Court continues to account for its broad deference to the political branches on immigration matters in terms of an inextricable connection between immigration regulation and the conduct of national security. This Article concludes by considering whether President Trump’s unusually candid (unusual, at least, during the last half-century) deployment of the invasion trope might have an edifying effect on the Supreme Court in Trump v. Hawaii, the travel ban case, as the justices contemplate the implications of deferring to a President whose campaign-season political demagoguery has now mutated to official United States policy

    The Separate or Concurrent Effects of Methylphenidate and Alcohol on Acquisition and Retention of the Morris Water Maze in Adolescent Rats

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    Alcohol’s (A) capacity to impair learning and memory has been well documented in the Morris Water Maze (MWM) but few studies have examined methylphenidate’s (MPH) impact on MWM performance (Haidun et al., 2010; Zeise et al., 2007). Even fewer studies have evaluated concurrent administration of these two drugs in adolescent rats (see Markwiese, et al., 1998). This project used a rat model of adolescent drug use to examine individual effects of MPH and A, as well as polypharmacy interactions between MPH and A, on MWM spatial acquisition and retention. Thirty-two adolescent (P30) male Long-Evans hooded rats were used. Subjects were assigned to one of 4 conditions based on drug administered prior to 6 consecutive acquisition sessions. Animals received 2 i.p. injections prior to each session. The methylphenidate group (MPH+S) received 2 mg/kg MPH and 1 ml/kg saline solution (S), the alcohol group (A+S) received 2 g/kg ethanol and S, the methylphenidate and alcohol group (MPH+A) received both MPH and A, and the saline control group (S+S) received S injections. MPH was administered 50 mins prior to each session and A administered 20 mins prior to each session. Each session consisted of 4 trials and rats swam from one of four start locations (N,E,S,W) to a submerged platform in the NE quadrant. Trial duration was 60 seconds and rats remained on the platform for 10 secs. Performances were video recorded, and latency and swim accuracy scored. Whishaw Corridors established a direct swim path from start location to platform and an error was recorded when swim paths exited the corridor. On day 7, the submerged platform was removed and a single, 60 sec retention test was conducted with no drug administered prior to test. Amount of time spent swimming in the NE quadrant was analyzed to assess retention. Acquisition: Both dependent measures, latency and swim accuracy, yielded similar outcomes. Factorial ANOVAs and post hoc tests showed improvement across training sessions for all groups. Importantly, the MPH+A group was impaired relative to all other conditions, and the S+S group performed better than the A group. No significant differences were observed between S+S and MPH+S groups. Retention: A one-way ANOVA of swim time in the NE quadrant revealed longer swim times for the S+S group compared to the A+S group, and longer swim times for the MPH+S group compared to the A+S group. No other significant differences were observed. While all groups improved performance during acquisition, methylphenidate + alcohol compromised spatial learning, and alcohol alone impaired learning relative to controls. Interestingly, measures of retention indicated only alcohol diminished spatial memory in adolescent rats

    How Antidiscrimination Law Learned to Live with Racial Inequality

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    This Article explores a great paradox at the heart of the prevailing paradigm of American antidiscrimination law: the colorblindness ideal. In theory, and often in practice, that ideal is animated by a genuine commitment to liberal, individualist, race-neutral egalitarianism. For many of its partisans, colorblindness entails not only a negative injunction against race-conscious decisionmaking, but also, crucially, an affirmative program for the achievement of true racial equality. For these proponents, scrupulously race-neutral decisionmaking both advances the interests of racial minorities and embodies the best aspirations of the civil rights movement. In this worldview, colorblindness offers the only true antidote for both racial inequality and racism itself, hastening the day when race will be, as the Supreme Court has put it, “truly irrelevant.” And indeed, the logical simplicity and moral clarity of the colorblindness ideal give it a certain intuitive appeal. This Article argues that recent history in fact belies such claims. Critics of the colorblindness model have long observed that the Supreme Court’s insistence on race-neutrality has proven a poor remedy for entrenched racial inequality. Remarkably—and here is the paradox—the Court’s very enforcement of the colorblindness ideal has itself fueled the reproduction of racial difference. In the service of colorblindness, the Burger and Rehnquist Courts, in dialogue with a host of influential social scientists and public intellectuals, redefined racial inequality from a wrong in and of itself - and as such a presumptive object of civil rights enforcement—to a morally benign legal irrelevancy. The Court did so by reconstructing African Americans from a class characterized, for the purpose of civil rights enforcement, by the systematic social, economic, and political subordination endured by its members, to a class characterized by its ethnically distinctive culture. By unveiling this critically neglected racial project, this Article casts new light on how American antidiscrimination law, though unequivocally committed to racial equality in theory, has learned to live with racial inequality in fact

    Preserving the Exceptional Republic: Political Economy, Race, and the Federalization of American Immigration Law

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    Between 1882 and 1891, the U.S. Congress enacted a spate of immigration laws though which the federal government assumed virtually exclusive control over a regulatory sphere that historically had been the province of the states. This Article argues that this federalization of immigration regulation represented an attempt to reconcile the nation’s most cherished ideological commitment - the notion that the U.S. would forever remain an exceptional, “free labor” republic - with the unprecedented social and economic convulsions of the 1870s and 1880s. The meaning of both immigrants and immigration was fundamentally transformed during the Gilded Age due to two successive “crises” of mass economic dependency - first, a wrenching depression that began in 1873 and lasted throughout the decade; and second, the so-called crisis of “foreign pauper labor” that dominated American political discourse on immigration throughout the 1880s. Eschewing sustained inquiry into the structural economic causes of these crises, policymakers, political intellectuals, labor spokesmen, and economists instead diagnosed an outbreak of mass economic pathology, which attributed widespread “pauperism,” and later, “pauperizing labor,” to the defective character of the poor themselves. That defectiveness, they further concluded, was not home-grown, but rather imported from the allegedly effete, racially degraded, declining civilizations of Europe. By drawing on a series of highly specialized, frequently shifting ideas about racial difference, policymakers and others submerged a conspicuously unexceptional picture of industrial America into a discourse of economic pathology that associated foreignness with racial unfitness for free labor. This emergent construction of European immigrants demanded a basic redirection of regulatory policy and practice. Within less than two decades, policymakers, immigration officials, courts, labor leaders, and others reconceived the principal purpose of immigration regulation from that of assisting newly landed immigrants, to that of excluding undesirables and, accordingly, shifted its operational emphasis from policing the environment into which immigrants entered to policing the immigrants themselves. Under the weight of these new regulatory priorities, the robust federalism that historically had characterized the regulation of immigration gave way. Contemporaries’ construction of mass dependency in effect nationalized the purposes of immigration regulation, as a consensus emerged among influential northerners that the future of the American citizenry, the quality of citizenship itself, and, ultimately, the very health of the republic, lay in the balance

    Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power

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    This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the plenary power doctrine was and remains the supposition that the regulation of immigration is always inherently related to the conduct of foreign affairs, and, especially, to national security. By situating this radical yet extremely durable doctrinal transformation within its appropriate intellectual and political context, this Article seeks to denaturalize the “national security rationale” for immigration exceptionalism. It argues that the plenary power doctrine was borne of an urgent sense of national peril, the basic terms of which most contemporary policymakers, judges, and scholars would emphatically reject. Although the doctrine made its judicial debut in the Chinese Exclusion Case, its historical origins in fact lie largely beyond Chinese exclusion in a much broader contemporaneous critique of (mostly European) immigration. The late nineteenth-century architects of the plenary power doctrine believed that the unchecked immigration of economically degraded, politically inassimilable, and racially unfit immigrants had created a virtual state of national emergency. In response, the Court fashioned an immigration power adapted not to the regulation of labor, or economic dependency, or crime—issues that, then as now, characterize most immigration lawmaking—but rather to the defense of the nation against foreign aggression. Although the immigrants upon whom this power was exercised were citizens of ostensibly “friendly” nations, policymakers and judges re-imagined them as enemy aliens. Through this process, the Court in effect invented the “immigrant” as a distinct, and distinctly consequential, legal construct

    Federalism and Phantom Economic Rights in NFIB v. Sibelius

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    Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act’s challengers, distinguishing between economic “activity,” which Congress can regulate, and “inactivity,” which it cannot. Because the commerce power extends only to “existing commercial activity,” and because the uninsured were “inactive” in the market for health care, they reasoned, the MCP was not a regulation of commerce within the meaning of the Constitution. Critically, supporters of the activity/inactivity distinction insisted that it was an intrinsic constraint on congressional authority anchored in the text of Article I and the structural principle of federalism, rather than an “affirmative” prohibition rooted in a constitutional liberty interest. This Article argues that the neat dichotomy drawn by the Chief Justice and joint dissenters between intrinsic and rights-based constraints on legislative authority is illusory, and that it obscures both the underlying logic and broader implications of the activity/inactivity distinction. In fact, that distinction is rooted less in the constitutional enumeration of powers or federalism than in a concern about individual liberty. Even in the absence of a formal constitutional “right” to serve as a doctrinal vehicle, the Justices’ defense of economic liberty operates analogously to the substantive due process right to “liberty of contract” during the Lochner era — as a trigger for heightened scrutiny of legislative means and ends. Current scholarship addressing the role of individual liberty in NFIB v. Sebelius tends to deploy Lochner as a convenient rhetorical touchstone, to lend an air of illicitness or subterfuge to the majority’s Commerce Clause analysis. This Article argues that the Lochner-era substantive due process cases are both more nuanced and more instructive than judges and many scholars have realized. They illustrate, in particular, that constraints on legislative authority that are rooted in individual liberty and constraints on legislative authority that are rooted in enumerated powers and federalism can and do operate in dynamic relationship to one another. Reading NFIB v. Sebelius through this historical lens better equips us to interrogate the role that economic liberty plays in the majority’s Commerce Clause analysis, and provides an important alternative analytical framework to the structure/rights dichotomy advanced by the Chief Justice and joint dissenters. The activity/inactivity distinction not only portends a constitutionally dim future for federal purchase mandates, but may also herald more far-reaching restrictions on congressional interference with economic liberty, in which individual sovereignty assumes a place alongside state sovereignty in the Court’s federalism

    Federalism and Phantom Economic Rights in NFIB v. Sibelius

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    Few predicted that the constitutional fate of the Patient Protection and Affordable Care Act would turn on Congress’ power to lay and collect taxes. Yet in NFIB v. Sebelius, the Supreme Court upheld the centerpiece of the Act — the minimum coverage provision (MCP), commonly known as the “individual mandate” — as a tax. The unexpected basis of the Court’s holding has deflected attention from what may prove to be the decision’s more constitutionally consequential feature: that a majority of the Court agreed that Congress lacked authority under the Commerce Clause to penalize people who decline to purchase health insurance. Chief Justice Roberts and the four joint dissenters endorsed the novel limiting principle advanced by the Act’s challengers, distinguishing between economic “activity,” which Congress can regulate, and “inactivity,” which it cannot. Because the commerce power extends only to “existing commercial activity,” and because the uninsured were “inactive” in the market for health care, they reasoned, the MCP was not a regulation of commerce within the meaning of the Constitution. Critically, supporters of the activity/inactivity distinction insisted that it was an intrinsic constraint on congressional authority anchored in the text of Article I and the structural principle of federalism, rather than an “affirmative” prohibition rooted in a constitutional liberty interest. This Article argues that the neat dichotomy drawn by the Chief Justice and joint dissenters between intrinsic and rights-based constraints on legislative authority is illusory, and that it obscures both the underlying logic and broader implications of the activity/inactivity distinction. In fact, that distinction is rooted less in the constitutional enumeration of powers or federalism than in a concern about individual liberty. Even in the absence of a formal constitutional “right” to serve as a doctrinal vehicle, the Justices’ defense of economic liberty operates analogously to the substantive due process right to “liberty of contract” during the Lochner era — as a trigger for heightened scrutiny of legislative means and ends. Current scholarship addressing the role of individual liberty in NFIB v. Sebelius tends to deploy Lochner as a convenient rhetorical touchstone, to lend an air of illicitness or subterfuge to the majority’s Commerce Clause analysis. This Article argues that the Lochner-era substantive due process cases are both more nuanced and more instructive than judges and many scholars have realized. They illustrate, in particular, that constraints on legislative authority that are rooted in individual liberty and constraints on legislative authority that are rooted in enumerated powers and federalism can and do operate in dynamic relationship to one another. Reading NFIB v. Sebelius through this historical lens better equips us to interrogate the role that economic liberty plays in the majority’s Commerce Clause analysis, and provides an important alternative analytical framework to the structure/rights dichotomy advanced by the Chief Justice and joint dissenters. The activity/inactivity distinction not only portends a constitutionally dim future for federal purchase mandates, but may also herald more far-reaching restrictions on congressional interference with economic liberty, in which individual sovereignty assumes a place alongside state sovereignty in the Court’s federalism

    The Presumptions of Classical Liberal Constitutionalism

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