Second Amendment Immigration Exceptionalism

This Essay critiques the decision to uphold federal gun restrictions on unlawfully present noncitizens on the basis of immigration exceptionalism. It argues that courts should avoid applying bespoke constitutionalism to criminal laws, including gun laws, simply because the law regulates noncitizens. This Essay shows why such exceptional modes misapprehend long-decided Supreme Court cases and well-established legal doctrine. Further, it warns that an exceptional approach to Second Amendment claims by unlawfully present noncitizens cannot be cabined to either firearms or the unlawfully present. Rather, it portends a wider gulf in constitutional protections for all noncitizens across a variety of fundamental criminal and civil rights

Guns and Membership in the American Polity

This Article elucidates the symbolic importance of citizenship distinctions in gun rights, contemplating how the American polity views itself and outsiders, and discussing the dynamics of intergroup and interpersonal interactions in the American Republican tradition

No Exception to the Rule: The Unconstitutionality of State Immigration Enforcement Laws

This issue brief presents the argument that state immigration enforcement laws, like Arizona\u27s SB 1070, are unconstitutional. The Supreme Court\u27s recent Whiting decision, upholding Arizona\u27s E-Verify and business licensing law, does not not alter the analysis or conclusion with regards to broader enforcement type schemes

Aliens with Guns: Equal Protection, Federal Power, and the Second Amendment

The nexus between guns and alienage presents a window through which to assess the competing constitutional values embodied in the Equal Protection Clause, the federal foreign-affairs power, and the Second Amendment. This Article analyzes the application of equal-protection norms and the federal foreign-affairs power on federal and state statutes that restrict the ability of non-citizens to bear arms. Professor Gulasekaram argues that courts should evaluate alienage restrictions at both the state and federal level under a unified analytic framework that would attempt to reconcile both personhood norms, such as equality, and gate-keeping norms vindicated by reliance on federal-power doctrines. As a result, the power of the federal government to legislate with regard to non-citizens would be reduced while concurrently allowing greater flexibility for states and localities

Immigration Enforcement Preemption

The Supreme Court\u27s 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in recent memory, striking down several provisions of Arizona\u27s omnibus enforcement law. Notably, the Court did not limit preemption inquiries to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and Executive Branch enforcement policies. The landmark decision seemed to have settled the Court\u27s approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas\u27s prosecutions of noncitizens who used stolen identities to procure employment in violation of federal immigration law. In so doing, the majority opinion took aim at Arizona\u27s central premise, rejecting the relevance of presidential enforcement in immigration preemption. This Article provides an urgently needed reappraisal of immigration preemption in the wake of Kansas. My primary claim is that immigration preemption requires a framework that accounts for the diminishing relevance of formal law, the discretionary enforcement options available to federal authorities, and the inherent liabilities associated with unauthorized status. I argue that presidential enforcement practices as a distillation of competing statutory values, congressional appropriations, executive policy preferences, and allocation of agency resources limn federal policy for immigration preemption purposes. In defending this claim, this Article recasts immigration preemption decisions from the past fifty years, revealing a long-standing judicial concern for federal enforcement practices. Second, this Article critiques Kansas for discounting federal enforcement practices, and defends a return to Arizona-like jurisprudence. Finally, it argues that this approach will not unduly aggrandize judicial or executive power, or imbalance federal-state authority over criminal enforcement

Immigration Federalism: A Reappraisal

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local offi- cials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither neces- sary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the con- stitutional and theoretical implications of these processes: It presents an evidence- based theory of state and local policy proliferation; it cautions legal scholars to rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these sub federal enactments

The President and Immigration Federalism

This Article lays out a systematic, conceptual framework to better understand the relationship between federal executive action and state- level legislation in immigration. Prior immigration law scholarship has focused on structural power questions between the U.S. federal government—as a unitary entity—and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal Executive and subfederal lawmaking, which is an important yet overlooked dynamic in the resurgence of immigration federalism. First, this Article explains the relationship between presidential action and state reaction in the immigration field, deriving a typology from historical examples of curtailing, co-opting, and catalyzing state action. Next, it uses that tripartite framework to explicate the ways that the Obama Presidency has deepened presidential power through immigration federalism, sometimes in unintentional ways. As an example of an unintended consequence of presidential action, this Article provides a novel explanation for the rise of state driver’s license laws for unauthorized immigrants. This Article’s analysis concludes that the President wields significant influence to bring coherency to immigration enforcement and instantiate a de facto national policy, using states to entrench his vision. In some circumstances, however, states may resist presidential action, thereby functioning as Congress’s proxy in separation of powers battles over immigration policy

The President and Immigration Federalism

This Article lays out a systematic, conceptual framework to better understand the relationship between federal executive action and state- level legislation in immigration. Prior immigration law scholarship has focused on structural power questions between the U.S. federal government—as a unitary entity—and the states, while newer scholarship has examined separation of powers concerns between the President and Congress. This Article builds on both of these traditions, focusing on the intersectional relationship between the federal Executive and subfederal lawmaking, which is an important yet overlooked dynamic in the resurgence of immigration federalism. First, this Article explains the relationship between presidential action and state reaction in the immigration field, deriving a typology from historical examples of curtailing, co-opting, and catalyzing state action. Next, it uses that tripartite framework to explicate the ways that the Obama Presidency has deepened presidential power through immigration federalism, sometimes in unintentional ways. As an example of an unintended consequence of presidential action, this Article provides a novel explanation for the rise of state driver’s license laws for unauthorized immigrants. This Article’s analysis concludes that the President wields significant influence to bring coherency to immigration enforcement and instantiate a de facto national policy, using states to entrench his vision. In some circumstances, however, states may resist presidential action, thereby functioning as Congress’s proxy in separation of powers battles over immigration policy