The Perpetual Invasion : Past as Prologue in Constitutional Immigration Law

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

WHY, DESPITE A RAPIDLY MILITARIZING CHINA, ARE THERE NO MULTILATERAL COLLECTIVE DEFENSE INSTITUTIONS IN ASIA?

With the return of great power and strategic competition, a renewed analysis of U.S. alliances in the Indo-Pacific is required. Competition with the Soviet Union during the Cold War elicited the formation of NATO, a multilateral collective defense institution. This thesis aims to answer why, despite a rapidly militarizing China, there remains no such institution in Asia. To that end, it examines the Chinese threat relative to that posed by the Soviet Union, then examines U.S. relations with its major partners in the region—India, Japan, South Korean, and Australia—to understand the forces that are inhibiting multilateralism. This thesis finds that the current geopolitical environment in the Indo-Pacific does not yet warrant a change to the hitherto successful hub-and-spokes system. China’s increased assertiveness in the region does not present an existential threat to the United States and its allies, and China’s economic appeal and regional clout disincentivize states from provoking it. However, parsimonious structural theories inadequately explain the lack of a multilateral institution in Asia. Domestic politics, norms, identity, and legal constructs also influence states’ desires and/or abilities to participate in such an institution. Nevertheless, a substantial Chinese transgression that severely upsets the status quo could drive states to form a multilateral collective defense institution in the region, as the appetite for defense-related multilateralism is increasing.Outstanding ThesisLieutenant, United States NavyApproved for public release. Distribution is unlimited

The Right to Migrate

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the long-standing premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate. During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding world-historical drama of human liberation and enlightenment, shaking off the servitude and privations of the Old World and reinventing themselves as free, equal, and independent republican citizens. Although the scope of that vision originally was limited to Europe, it nevertheless seeded a field of American national identity that eventually would yield a genuinely universal (though ultimately unconsummated) right to migrate to the United States and be incorporated within the American political community. Following the Civil War, leading congressional architects of Reconstruction sought to expand the right to migrate beyond Europe to an emerging global theater of cosmopolitan culture, commerce, and labor. To the liberal internationalists of the postbellum era, migration was not a discrete, constitutionally exceptional subject of federal policy-making; rather, it was integral to the monumental post-Civil War project of renovating and reinvigorating American liberty, equality, and citizenship. Theirs was a worldview in which federal sovereignty and citizenship were paramount, yet the border between citizen and alien was both porous and transitory, and in which immigrants were regarded as “Americans in waiting.” That worldview serves as a forceful rebuttal to the Court’s presumption that preserving national sovereignty and security requires that immigration law occupy a constitutional world apart

DISAGGREGATING “IMMIGRATION LAW”

Courts and scholars have long noted the constitutional exceptionalism of the federal immigration power, decried the injustice it produces, and appealed for greater constitutional protection for noncitizens. This Article builds on this robust literature while focusing on a particularly critical conceptual and doctrinal obstacle to legal reform—the notion that laws governing the rights of noncitizens to enter and remain within the United States comprise a distinct body of “immigration laws” presumed to be part and parcel of foreign affairs and national security. This Article argues that the U.S. Supreme Court’s recent immigration jurisprudence suggests a willingness to temper, and perhaps even retire, that presumption. In particular, the majority opinions in Zadvydas v. Davis and Padilla v. Kentucky evidence a growing skepticism among the Justices that the regulation of noncitizens comprises a discrete, constitutionally privileged domain of distinctly “political” subject matter that is properly buffered against judicial scrutiny. To rescind that presumption would, in effect, disaggregate the category of “immigration law” for the purpose of constitutional review and subject federal authority over noncitizens to the same judicially enforceable constitutional constraints that apply to most other federal lawmaking. The disaggregation of immigration law would thus give full expression to noncitizens’ constitutional personhood. Foreign policy and national security considerations would continue to serve as constitutionally viable warrants for laws burdening noncitizens, but Congress and the President would no longer enjoy the extraordinary judicial deference that they currently receive as a matter of course

Geochemical and mineralogical aspects of sulfide mine tailings

NSERCPeer ReviewedTailings generated during processing of sulfide ores represent a substantial risk to water resources. The oxidation of sulfide minerals within tailings deposits can generate low-quality water containing elevated concentrations of SO4, Fe, and associated metal(loid)s. Acid generated during the oxidation of pyrite [FeS2], pyrrhotite [Fe(1-x)S] and other sulfide minerals is neutralized to varying degrees by the dissolution of carbonate, (oxy)hydroxide, and silicate minerals. The extent of acid neutralization and, therefore, pore-water pH is a principal control on the mobility of sulfide-oxidation products within tailings deposits. Metals including Fe(III), Cu, Zn, and Ni often occur at high concentrations and exhibit greater mobility at low pH characteristic of acid mine drainage (AMD). In contrast, (hydr)oxyanion-forming elements including As, Sb, Se, and Mo commonly exhibit greater mobility at circumneutral pH associated with neutral mine drainage (NMD). These differences in mobility largely result from the pH-dependence of mineral precipitation-dissolution and sorption-desorption reactions. Cemented layers of secondary (oxy)hydroxide and (hydroxy)sulfate minerals, referred to as hardpans, may promote attenuation of sulfide-mineral oxidation products within and below the oxidation zone. Hardpans may also limit oxygen ingress and pore-water migration within sulfide tailings deposits. Reduction-oxidation (redox) processes are another important control on metal(loid) mobility within sulfide tailings deposits. Reductive dissolution or transformation of secondary (oxy)hydroxide phases can enhance Fe, Mn, and As mobility within sulfide tailings. Production of H2S via microbial sulfate reduction may promote attenuation of sulfide-oxidation products, including Fe, Zn, Ni, and Tl, via metal-sulfide precipitation. Understanding the dynamics of these interrelated geochemical and mineralogical processes is critical for anticipating and managing water quality associated with sulfide mine tailings

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

Preexercise Carbohydrate Feeding and High-Intensity Exercise Capacity: Effects of Timing of Intake and Carbohydrate Concentration

The present study aimed to investigate the influence of timing of pre-exercise carbohydrate feeding (Part A), and carbohydrate concentration (Part B), on short-duration high-intensity exercise capacity. In Part A, seventeen males, and in Part B ten males, performed a peak power output (PPO) test, two familiarisation trials at 90% of PPO, and 4 (for Part A) or 3 (for Part B) experimental trials involving exercise capacity tests at 90% PPO. In Part A, the 4 trials were conducted following ingestion of a 6.4% carbohydrate/electrolyte sports drink ingested 30 (C30) or 120 (C120) minutes before exercise, or a flavour-matched placebo administered either 30 (P30) or 120 (P120) minutes before exercise. In Part B, the 3 trials were performed 30 minutes after ingestion of 0%, 2% or 12% carbohydrate solutions. All trials were performed in a double blind cross-over design following and overnight fast. Dietary intake and activity in the two days before trials was recorded and replicated on each visit. Glucose, lactate, heart rate and mood/arousal were recorded at intervals during the trials. In Part A, C30 produced the greatest exercise capacity (mean±SD; 9.0±1.9 min, P<0.01) compared with all other trials (7.7±1.5 min P30, 8.0±1.7 min P120, 7.9±1.9 min C120). In Part B, exercise capacity (min) following ingestion of the 2% solution (9.2±2.1) compared with 0% (8.2±0.7) and 12% (8.0±1.3) solutions approached significance (p=0.09). This study provides new evidence to suggest that timing of carbohydrate intake is important in short duration high-intensity exercise tasks, but a concentration effect requires further exploration

A discrete invitation to quantum filtering and feedback control

The engineering and control of devices at the quantum-mechanical level--such as those consisting of small numbers of atoms and photons--is a delicate business. The fundamental uncertainty that is inherently present at this scale manifests itself in the unavoidable presence of noise, making this a novel field of application for stochastic estimation and control theory. In this expository paper we demonstrate estimation and feedback control of quantum mechanical systems in what is essentially a noncommutative version of the binomial model that is popular in mathematical finance. The model is extremely rich and allows a full development of the theory, while remaining completely within the setting of finite-dimensional Hilbert spaces (thus avoiding the technical complications of the continuous theory). We introduce discretized models of an atom in interaction with the electromagnetic field, obtain filtering equations for photon counting and homodyne detection, and solve a stochastic control problem using dynamic programming and Lyapunov function methods.Comment: 76 pages, 12 figures. A PDF file with high resolution figures can be found at http://minty.caltech.edu/papers.ph

Recent advances in understanding the neonatal microbiome

The neonatal developmental window represents a key time for establishment of the gut microbiota. First contact with these microbes within the infant gastrointestinal tract signifies the start of a critical mutualistic relationship, which is central for short- and longer-term health. Recent research has provided insights into the origin of these microbial pioneers, how they are maintained within the gut environment, and how factors such as antibiotics or preterm birth may disrupt the succession of beneficial microbes. The acquisition, colonisation, and maintenance of the early life microbiota, and subsequent interactions with the host is a rapidly developing research area. In this review we explore some of these key topics which have been illuminated by recent research, and we highlight some of the important unresolved questions which currently limit our overall understanding of the neonatal gut microbiome