Constraint through Delegation: The Case of Executive Control over Immigration Policy

This Article proposes recalibrating the separation of powers between the political branches in the context of their regulation of immigration law\u27s core questions: how many and what types of immigrants to admit to the United States. Whereas Congress holds a virtual monopoly over formal decisionmaking, the executive branch makes de facto admissions decisions using its discretionary enforcement power. As a result of this structure, stasis and excessive prosecutorial discretion characterize the regime, particularly with respect to labor migration. Both of these features exacerbate pathologies associated with illegal immigration and call for a structural response. This Article contends that Congress should create an executive branch agency, marked by indicia of independence, to set visa policy-an avenue increasingly contemplated by reformers. Though it may seem counterintuitive, delegation of greater authority can help constrain executive power by substituting a transparent process, subject to monitoring, for decisionmaking that occurs hidden from view. Delegation can also help overcome limitations in the legislative process that contribute to the current regime\u27s dysfunction, making immigration policy more efficient and effective. The Refugee Act of 1980 provides a parallel that is helpful in thinking through what it would mean to delegate ex ante admissions power to the executive

The Significance of the Local in Immigration Regulation

The proliferation of state and local regulation designed to control immigrant movement generated considerable media attention and high-profile lawsuits in 2006 and 2007. Proponents and opponents of these measures share one basic assumption, with deep roots in constitutional doctrine and political rhetoric: immigration control is the exclusive responsibility of the federal government. Because of the persistence of this assumption, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the regulatory uniformity both sides claim to seek is neither achievable nor desirable. I argue that the time has come to devise a modus vivendi regarding participation by all levels of government in the management of migration. To do so, I provide a functional account of subfederal immigration regulation and demonstrate how the federal-state-local dynamic operates as an integrated system to manage contemporary immigration. The primary function of states and localities is to integrate immigrants into the body politic and thus to bring the country to terms with demographic change. This process cannot be managed by a single sovereign, and it sometimes depends on states and localities adopting positions in tension with federal policy. Given these dynamics, I offer a reformulation of existing federalism presumptions in the immigration context. These will not be primarily for application by courts, though courts should abandon constitutional or strong field and obstacle preemption theories in immigration cases. Instead, I offer a framework for federal and state lawmakers intended to restrain their impulses to preempt legislation by lower levels of government and to create incentives for cooperative ventures in immigration regulation. Counterintuitively, the changes wrought by international economic integration demand strong institutions beneath the national level. Immigration highlights this convergence of the transnational and the local. Only by assimilating our understandings of immigration federalism to this realization can we explain and harness the value of state and local regulation

Clearing the Smoke-Filled Room: Women Jurors and the Disruption of an Old-Boys’ Network in Nineteenth- Century America

In May of 1884, Massachusetts lawyer Lelia Robinson arrived inSeattle, Washington Territory, at the end of a transcontinental journey withthe woman question foremost in her mind. The territorial legislature hadjust passed a women\u27s suffrage act, and Robinson had been drawnwestward by the possibility of witnessing women serve on grand and petitjuries. She arrived skeptical, believing that the scope of women\u27s politicalrights had been extended too far. [W]hatever might be the policy and thedesirability of women\u27s voting, she wrote, it was carrying the matter alittle too far to force them to do jury service. Gradually, she becameconvinced that the women of Washington represented paradigmatic jurors.She described them as ladies to whom any one might gladly entrust thesettlement of any question, civil or criminal, that must be carried into acourt of justice ... . Robinson\u27s sentiment evolved in response to the changed behavior shewitnessed inside the courtroom-a development she attributed to thepresence of women. Remarkably, after vigorous discussion and judiciousexamination of evidence, the women jurors appeared to be less tired and inbetter health than their male counterparts. The men of the jury foundthemselves at the end of the trial to have been great sufferers in beingdeprived of the use of their favorite weed .... [W]hen women jurors camein, smoking jurors went out-or rather the cigars and pipes went out. Menfound that they must be gentlemen in the jury-room as in the drawingroom. 4 By Robinson\u27s estimation, women had entered the proverbialsmoke-filled room of the law and quite literally cleared the air

Language Diversity in the Workplace

In March of 2005, the manager of a Dunkin\u27 Donuts in Yonkers, NewYork, stirred some local controversy when he posted a sign inviting customersto complain if they heard employees behind the counter speaking alanguage other than English. A day later, the manager removed the sign,responding to vociferous complaints that it amounted to discrimination.While the mini-drama was not itself an unusual event-English-only ruleshave become increasingly common in the American workplace-the episodedid not follow the predictable script. The manager, who acted on hisown, was himself a native Spanish speaker-an immigrant from Ecuador.He claimed he had posted the sign in response to customer complaintsabout employees behind the counter acting disrespectfully by speakingSpanish in the presence of customers. But the outcry that prompted themanager to remove the sign came not from the employees whose speechhad been curtailed, nor from groups representing their interests, but fromthe very clientele the manager thought he had been serving. The people ofthe neighborhood immediately denounced the policy as discriminatory,coming to the defense of the Latino, Egyptian, and Filipino employees.And while Dunkin\u27 Brands, Inc. requires employees who interact with thepublic to be fluent in English, the company immediately issued a statementdistancing itself from the manager\u27s action, emphasizing that having employeesthat speak the languages of the local neighborhood ... can be a keyelement in creating a hospitable environment. The company took no disciplinaryaction against the manager, and the episode ended looking likenothing more than a big misunderstanding

The Significance of the Local in Immigration Regulation

The proliferation of state and local regulation designed to control immigrant movement generated considerable media attention and high-profile lawsuits in 2006 and 2007. Proponents and opponents of these measures share one basic assumption, with deep roots in constitutional doctrine and political rhetoric: immigration control is the exclusive responsibility of the federal government. Because of the persistence of this assumption, assessments of this important trend have failed to explain why state and local measures are arising in large numbers, and why the regulatory uniformity both sides claim to seek is neither achievable nor desirable. I argue that the time has come to devise a modus vivendi regarding participation by all levels of government in the management of migration. To do so, I provide a functional account of subfederal immigration regulation and demonstrate how the federal-state-local dynamic operates as an integrated system to manage contemporary immigration. The primary function of states and localities is to integrate immigrants into the body politic and thus to bring the country to terms with demographic change. This process cannot be managed by a single sovereign, and it sometimes depends on states and localities adopting positions in tension with federal policy. Given these dynamics, I offer a reformulation of existing federalism presumptions in the immigration context. These will not be primarily for application by courts, though courts should abandon constitutional or strong field and obstacle preemption theories in immigration cases. Instead, I offer a framework for federal and state lawmakers intended to restrain their impulses to preempt legislation by lower levels of government and to create incentives for cooperative ventures in immigration regulation. Counterintuitively, the changes wrought by international economic integration demand strong institutions beneath the national level. Immigration highlights this convergence of the transnational and the local. Only by assimilating our understandings of immigration federalism to this realization can we explain and harness the value of state and local regulation

The Citizenship Paradox in a Transnational Age

Through Americans in Waiting, Hiroshi Motomura tells us three different stories about how U.S. law and policy, over time, have framed the relationship between immigrants and the American body politic. He captures the complexity, historical contingency, and democratic urgency of that relationship by canvassing the immigration law canon and teasing from it the three frameworks that have structured immigrants\u27 social status, their interactions with the state, and the processes of immigrant integration and naturalization. In so doing, he illuminates how popular mythologies about the assimilative capacity of the American melting pot obscure myriad political and social conflicts over how best to produce Americans. He also demonstrates how alternating cycles of inclusive and exclusionary politics have shaped the processes through which American citizenship has been defined. As he charts this history, Motomura reminds us of the unceasing importance of the institution of national citizenship, particularly in an era of semiporous borders and transnational forms of political and economic association. He calls on Americans to honor the very best of the three historical traditions he presents by treating lawful immigrants as American citizens in waiting, presumptively entitled to all the prerogatives of membership