Immigration Outside the Law.

• Author: Rubenstein, David S.
• Position: Book review

Immigration Outside the Law. By Hiroshi Motomura. New York: Oxford University Press (2014). Pp. xiii, 235. $29.95.

INTRODUCTION

In Immigration Outside the Law, Hiroshi Motomura (1) confronts the three hardest questions in immigration today: what to do about our undocumented population, who should decide, and by what legal process. Motomura's treatment is characteristically visionary, analytically rich, and eminently fair to competing views. The book's intellectual arc begins with its title: "Immigration Outside the Law." As the narrative unfolds, however, Motomura explains that undocumented immigrants are "Americans in waiting," with moral and legal claims to societal integration (pp. 86, 89, 204-05).

Ushering immigration outside the law, inside of it, is no easy feat. The route is partly obstructed by politics, (2) and partly by the Constitution itself. After all, the Constitution's separation of federal power and finely wrought lawmaking process makes national solutions elusive. (3) Meanwhile, the Constitution's federalist structure provides a platform for state and local resistance to the wide-scale integration of undocumented immigrants that

Motomura envisions. (4) And despite the Constitution's guarantee of equal protection, it hardly protects this population from restrictionist policies at both the federal and subfederal levels. (5)

Immigration Outside the Law offers a path through these constitutional thickets. (6) But the path requires some departures from mainstream constitutional norms. As I will explain, Motomura blends elements of constitutional structure and rights into a mold that I call "Black-Box Immigration Federalism." I employ the black box metaphor here to reflect a system with known external effects but with opaque internal functions. (7) Outwardly, Black-Box Immigration Federalism reduces to the seemingly simple formula that "federal law overrides any inconsistent state or local law" (p. 7). The formula looks about right, and many commentators seem to accept it on faith. Yet beneath the formula's tidy veneer is a cache of legal uncertainties, complexities, and potential contractions. Foremost among them are what qualifies as federal law, how that law should be calibrated when it looks different in action than it does on the books, and conversions of nonbinding executive enforcement policies into federal law with preemptive effect. (8) Emphatically, Motomura's treatment of the "federal law" preemption formula is refreshingly self-aware and entirely transparent. It is the formula itself, however, that entails far more than it outwardly suggests. The black box metaphor is simply meant to draw attention to those inward complexities.

More specifically, Black-Box Immigration Federalism treats the federal government as an undifferentiated whole, and from that starting position embeds some or all of the following propositions. First, the federal government can freely choose to make law by statute, regulation, or otherwise (pp. 122-23). Second, nonbinding federal policies qualify as law (pp. 121, 123). Third, immigration "law in action" (p. 4) takes presumptive precedence over Congress's laws on the books (pp. 121, 123-24). Fourth, executive enforcement policies, which are not binding as against the federal government, are nevertheless binding on state and local jurisdictions. So, in the event of a conflict between executive enforcement policies and subfederal law, the former trumps. (9) Fifth, restrictionist state and local immigration policies are presumptively preempted by incorporation of an "equality norm" into Supremacy Clause challenges. (10) Collectively, the foregoing propositions feed Black-Box Immigration Federalism and are captured within Motomura's framing statement that "federal law overrides any inconsistent state or local law" (p. 7).

Black-Box Immigration Federalism is a serious idea with serious intellectual backing. (11) Indeed, the Supreme Court's decision in Arizona v. United States hints at something like it, albeit with mixed signals. (12) This Review does not deny the constitutional or normative possibilities of Black-Box Immigration Federalism. Rather, my threefold aim is to bridge some gaps between immigration and constitutional theory, provide alternative views to Motomura's in these regards, and explain why Black-Box Immigration Federalism should not be taken for granted--perhaps especially by immigrant advocates. As I will explain, this intriguing constitutional construct may do as much to undermine as advance immigrant interests in the long run, if not also in the short.

Constitutionally, each of the animating features of Black-Box Immigration Federalism sketched above has potentially far-reaching implications. (13) Immigration law is famously exceptional in the sense that it sometimes departs from mainstream constitutional and administrative norms. (14) Yet whether immigration is exceptional in the ways that Motomura suggests, and whether it should be, remain vital questions for the future of immigration law. (15) Moreover, we must be scrupulous about whether structural doctrines can, or should, be a vehicle for the wide-scale integration that Motomura envisions. Certainly, Black-Box Immigration Federalism may bode well for undocumented immigrants in the short run, which may explain some of its appeal. With Congress gridlocked, undocumented immigrants generally will benefit from the combined effects of an executive branch that is unable or unwilling to enforce existing removal statutes, (16) and a robust preemption doctrine that prevents state and local governments from filling the enforcement gap. But, instrumentally, Black-Box Immigration Federalism comes with a major limitation: any promise it holds for promoting wide-scale integration is politically contingent. As a structural prophylactic, Black-Box Immigration Federalism allocates power, not social outcomes.

Of course, it is too soon to know whether Black-Box Immigration Federalism can or will deliver an enduring platform for the integration of undocumented immigrants. It depends on how the allocated federal power is used (or abused). (17) That uncertainty, however, is reason for pause. Immigration constitutional doctrine tends to be sticky--in ways often unfavorable to immigrant interests, and difficult to undo. (18) Caution is thus warranted before placing faith in structural arrangements that simultaneously consolidate federal power and relax checks against it, which is precisely what BlackBox Immigration Federalism portends to do.

1. USHERING IMMIGRATION OUTSIDE THE LAW INSIDE THE LAW

   One of Immigration Outside the Law's most ingenious contributions is the analytical framework it offers for understanding and shaping responses to unauthorized immigration (pp. 3-5). The framework derives from Plyler v. Doe, in which the Supreme Court held that a state's denial of K-12 public education to undocumented immigrants violated equal protection. (19) Plyler s actual holding was quite limited, which Motomura is quick to acknowledge. (20) Instead, what matters are three themes Motomura culls from that case, which he claims have shaped debates over undocumented immigration ever since: first, the meaning and significance of unlawful immigration; second, the state and local role in regulating unauthorized migration; and third, the integration of this population into the fabric of American life (pp. 10-13). This framework provides new egress to the question of what to do about unlawful immigration, which is mostly for political consumption. My focus here, however, is on Motomura's application of this framework to constitutional questions concerning who should decide what to do about unlawful immigration, and, procedurally, how those decisions must or may be made.

   The book's first three chapters explore each of the Plyler themes separately, in seriatim. Chapter One argues that being present in the United States without authorization is legally inconclusive, in part because "the consequences of unlawful presence are highly variable, depending on the exercise of enforcement discretion." (p. 13). Here, Motomura deflects (or deflates) the significance of Congress's immigration law on the books, and, instead, emphasizes immigration law in action (p. 13). Of equal import, Motomura contends that unlawful status is inconclusive and indeterminate by national design (pp. 21-22, 31). "[T]he uncertainty that selective discretion creates for unauthorized migrants," he argues, "is an essential part of the system itself' (p. 53). This descriptive point is foundational to his prescriptive claims, in later chapters, about what the nation owes this population on moral and legal grounds.

   Chapter Two provides a descriptive account of the state and local role in immigration matters. That role has varied over time and across jurisdictions. (21) Here, Motomura mostly tracks convention to sort subfederal laws into "restrictionist" and "integrationist" classifications: the former are characterized by their hostility to undocumented immigrants, whereas the latter create a neutral or welcoming environment for this population. Because it is relevant to the discussion that follows, examples of restrictionist laws include those giving state and local officials a role in detection, arrest, and detention of noncitizens on the basis of federal immigration violations. Restrictionist laws also make it difficult or impossible for undocumented immigrants to rent housing, find work, or attend public schools. Examples of integrationist measures, by contrast, include so-called sanctuary or non-cooperation laws, which limit state and local officers from identifying and apprehending individuals for immigration violations, and laws that provide public benefits to unauthorized immigrants, such as in-state college tuition or municipal identification cards (pp. 58-59, 80-81).

   Chapter Three examines the integration of unauthorized immigrants into...