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

Domesticating Civil Society: How and Why Governments Use Laws to Regulate CSOs

A single topic unifies my dissertation chapters: how and why do governments regulate civil society organizations (CSOs)? Three sets of research questions engage this topic using a multi-method research design. My first set is descriptive: what exists in the range of legal provisions governments use to regulate CSOs and how often do governments enact these provisions? In the second set of questions, I examine policy adoption, asking: under what conditions do governments enact various CSO regulation? Then, to what extent are these legal institutions path dependent—meaning, shaped by current laws and institutions—and to what extent are they affected by international factors and influences? And why do nondemocratic governments enact permissive provisions more frequently than restrictive ones? Finally, the third set of questions examines enforcement, asking under what conditions do governments enforce these provisions? Do de facto rules always match de jure rules, and if not, why not? My dissertation speaks to what human rights defenders identify as a growing number of governments enacting new, restrictive CSO laws—a trend referred to as the “closing space” phenomenon. This pattern is concerning, and we cannot afford to misunderstand it. The conventional explanation is that governments use these CSO laws to maintain power by rattling social cohesion and weakening democratic opposition. Discourse within the literature suggests that democracies pass permissive laws that protect the freedom of association, while autocracies and hybrid regimes pass restrictive laws that hinder voluntary association. What is more, the traditional argument frames these laws as a relatively new phenomenon beginning in the late twentieth century. Yet closely examining primary legal sources reveals a puzzling, non-trivial number of exceptions to these rules. One type of exception is that nondemocratic regimes frequently enact permissive provisions. Another type is that CSO laws are not new and often predate a country’s independence. If these legal institutions are neither categorically restrictive nor necessarily new as we once thought, why do governments enact them, and how do they enforce them to regulate CSOs? My theory argues that a government uses both CSO laws and regulatory enforcement actions to maintain political control and to expand legitimacy among its citizenry and the international community. A government whose grip on power is secure uses legal rules to provide CSOs with greater operational space that directly and indirectly bolsters its legitimacy. When a regime’s grip on control is fragile, the government manipulates legal rules and enforcement actions to observe civil society and control CSOs. This theory applies to all regime types and levels of development. I test my theory using five methods and four datasets. Among the data analyzed is a novel dataset created by systematically and holistically coding 285 laws enacted by 17 countries between 1872 and 2019. Twelve are East African countries; the remaining cases are the Permanent Members of the UN Security Council. A single-country case study of Kenya completes my research design. Using site-intensive methods, I collected archived government records and interviewed elected officials, bureaucrats, and CSO regulators. Qualitative analysis triangulates my findings to identify causal processes. My primary findings are that the legal institutions that regulate CSOs, what I introduce as “CSO regulatory regimes,” are neither new nor categorically restrictive. Regulatory regimes are instead historically informed, rewritten at different moments in different ways, and enforced inconsistently for political expediency. In its simplest form, my argument is that governments tactically alter their regulatory regime’s contents and enforcement as part of a broader strategy to increase their legitimacy and control. Governments maintain the status quo—both written rules and enforcement actions—as long as the current regulatory regime achieves the government’s aims. When change is necessary, governments alter enforcement actions, enact new provisions and enforce them as written, or enact provisions with the intention of sabotaging their enforcement. Enacting or not enacting a particular CSO law does not guarantee civil society’s environment will open or close. To truly understand whether a law “helps” or “hinders,” we must know the law’s contents and see how the government enforces it. I consider these matters as I explore how and why governments use CSO laws to domesticate civil society

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