Returning Sovereignty to the People

Governments across the world regularly invoke sovereignty to demand that the international community mind its own business while they commit human rights abuses. They proclaim that the sovereign right to be free from international intervention in domestic affairs permits them unfettered discretion within their territory. This Article seeks to challenge those proclamations by resort to sovereignty in the people, a time-honored principle that is typically more rhetorical than substantive. Relying on classical interpretations of sovereignty, this Article infuses substance into the concept of sovereignty in the people to recognize that a government is entitled to sovereign rights only as the legitimate representative of the people and only as long as it fulfills its duties to them. The Article then examines the conditions that must be met for a government to claim sovereign rights, as well as how and by whom access to these rights should be determined. Taken to its logical conclusion, sovereignty in the people establishes that (1) sovereign rights can be lost when governments commit less than the most egregious human rights abuses, which differentiates this from the responsibility to protect; and (2) any form of government is at risk of losing these rights, including democracies

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

International Human Rights Law and Religious and Cultural Law: Breaking the Impasse

The international human rights movement is facing an existential crisis—a crisis created in part by its continuing failure to adequately address strong criticism that international human rights law (IHRL) is a form of cultural imperialism designed to destroy local religion and culture.  While the debate underlying the crisis is not new, the strength of its threat to IHRL and the liberal democratic order is.  One of the primary points of friction is over IHRL’s seeming rejection of a group right to be governed by religious or cultural law—a right IHRL proponents fear would open the doors to discrimination against women, the LGBT community and nonconformists.  Already, populist leaders like President Erdogan of Turkey have been able to capitalize on a combination of demands for a role for religion in governance and frustration with economic inequality to claw back on human rights and democratic guarantees.The debates surrounding group rights have reached an impasse that will do little to promote either human rights or greater respect for religion and culture.  This Article seeks to break that impasse.  First, it relies on progressive Muslim and African scholarship to tear down the assumptions shared by both IHRL and group rights proponents that make the impasse seemingly intractable: (1) that religious and cultural law are determined from the top down; and (2) that they demand total submission of their followers.  Having debunked those assumptions, it then challenges both groups to consider whether a theory of substantive human rights could allow countries to guarantee individuals the right to feely and equally choose whether to be governed by religious or cultural law without risking that this choice will become a ruse for favoring the majority group or for subjugating women and vulnerable groups

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