An Unreasonable Presumption: The National Security/Foreign Affairs Nexus in Immigration Law

For well over a century, immigration has occupied a constitutionally unique niche within US public law. Noncitizens in immigration proceedings are routinely denied constitutional guarantees, including due process and equal protection, that apply in virtually every other legal setting. Courts justify their extraordinary deference to the government by invoking a presumptive nexus between immigration, on the one hand, and national security and foreign affairs, on the other. Critically, courts cite the national security/foreign affairs nexus regardless of whether the specific regulation or enforcement action under review has any plausible bearing on those interests. This article is the first to demonstrate empirically that immigration law’s presumed national security/foreign affairs nexus rests on a fiction. Using data available from the Executive Office of Immigration Review, we analyzed the case files of more than six million immigration cases adjudicated between 1996 and 2021. Our analysis of the approximately 9.7 million charging codes entered in those cases indicates that the government identified a national security or foreign affairs issue as a basis for removal in just .013 percent of cases. These empirical findings have important implications for the future of judicial review in immigration cases. If the proportion of cases that purportedly implicate national security or foreign affairs is, as our data indicates, vanishingly small, it makes little sense for this exceedingly rare class of cases to dictate the standard of judicial review for the 99.987 percent of immigration cases that do not involve those exceptional governmental interests. Instead, reviewing courts should approach immigration law for what it is: a miscellany of statutes, regulations, and enforcement actions that concern civil violations of immigration law, the removal consequences of criminal convictions, labor, public health and welfare, and, very infrequently, national security or foreign affairs. Under such an approach, the vast majority of immigration regulations would be reviewed under the same substantive, judicially enforceable constitutional norms that apply in nonimmigration legal settings. In the context of detention, for example, noncitizens who are detained pursuant to removal proceedings would be entitled to the same due process rights as criminal suspects or allegedly dangerous mentally ill persons. The government would retain broad latitude in immigration cases that involve bona fide national security or foreign affairs interests, but it would no longer enjoy the categorical judicial deference that it currently receives as a matter of course

To manipulate and legitimise: government officials explain why non-democracies enact and enforce permissive civil society laws

Civil society is a bulwark against autocratic rule; its erosion contributes to democratic recession worldwide. Scholars and activists are calling attention to repressive laws non-democratic governments enact to undermine civil society organizations (CSOs). Yet, non-democratic governments do not only enact repressive laws; they also enact permissive, quasi-democratic legal rules. Evidence from case studies suggests that non-democratic governments enact such rules as part of a broader strategy to stabilize the regime. This article adds a within-case comparative study of Kenya’s four CSO regulators to the growing evidence showing that non-democracies can choose to manipulate civil society rather than repress it. The government’s words and documentation provide evidence: I triangulate elite interviews with elected officials and bureaucrats with archival data from government libraries and four CSO regulators. I find that the government enacts permissive legal rules and then uses several control and consultation tactics collectively, separately, and episodically to manipulate CSOs and legitimise the regime.</p

Biases in low-information environments: Understanding for-profit and non-profit salary differentials in Haiti

The Global South contains low-information environments that impose information search costs on organisations. We compare explanations for how employers make decisions in these environments. To do so, we analyse salaries collected from employers in Haiti, including local and international non-profits and domestic and foreign businesses. Although preliminary findings suggest that international non-governmental organisations pay above-market salaries, accounting for alternative explanations from behavioural economics causes the organisational form's importance to dissipate. We find that anchoring and framing mechanisms separately influence decision-making. These findings direct us to focus more on the actions and tools managers use to make decisions in low-information environments

An Unreasonable Presumption: The National Security/Foreign Affairs Nexus in Immigration Law

For well over a century, immigration has occupied a constitutionally unique niche within US public law. Noncitizens in immigration proceedings are routinely denied constitutional guarantees, including due process and equal protection, that apply in virtually every other legal setting. Courts justify their extraordinary deference to the government by invoking a presumptive nexus between immigration, on the one hand, and national security and foreign affairs, on the other. Critically, courts cite the national security/foreign affairs nexus regardless of whether the specific regulation or enforcement action under review has any plausible bearing on those interests. This article is the first to demonstrate empirically that immigration law’s presumed national security/foreign affairs nexus rests on a fiction. Using data available from the Executive Office of Immigration Review, we analyzed the case files of more than six million immigration cases adjudicated between 1996 and 2021. Our analysis of the approximately 9.7 million charging codes entered in those cases indicates that the government identified a national security or foreign affairs issue as a basis for removal in just .013 percent of cases. These empirical findings have important implications for the future of judicial review in immigration cases. If the proportion of cases that purportedly implicate national security or foreign affairs is, as our data indicates, vanishingly small, it makes little sense for this exceedingly rare class of cases to dictate the standard of judicial review for the 99.987 percent of immigration cases that do not involve those exceptional governmental interests. Instead, reviewing courts should approach immigration law for what it is: a miscellany of statutes, regulations, and enforcement actions that concern civil violations of immigration law, the removal consequences of criminal convictions, labor, public health and welfare, and, very infrequently, national security or foreign affairs. Under such an approach, the vast majority of immigration regulations would be reviewed under the same substantive, judicially enforceable constitutional norms that apply in nonimmigration legal settings. In the context of detention, for example, noncitizens who are detained pursuant to removal proceedings would be entitled to the same due process rights as criminal suspects or allegedly dangerous mentally ill persons. The government would retain broad latitude in immigration cases that involve bona fide national security or foreign affairs interests, but it would no longer enjoy the categorical judicial deference that it currently receives as a matter of course

Supplemental Information for: Overcoming the laws-in-translation problem: Comparing techniques to translate legal texts

The benefits of computerized translations are their speed, accessibility, and cost. The risk is whether they are sufficiently precise for a given need. This note assesses the options available to translate legal text for socio-legal research. We evaluate three tools—DeepL, Google, Microsoft—and assess each one’s ability to translate similar legal content enacted by the Brazilian, Chinese, French, Japanese, and Mexican governments. We demonstrate that machine translators are reliable and effective, particularly at higher levels of generality. They are fallible, however, and each is prone to making critical errors that may jeopardize research. We show that employing human translators to edit automated translations produces high-quality translations in one-third the time and at a fraction of the cost. This methodological contribution promises to enrich socio-legal research by establishing a translation protocol that is affordable, rigorous yet simple, and transparent. We propose that scholars use this method for comparative socio-legal research