Family reunification and the security state.

• Author: Abrams, Kerry

When does an individual's interest in reunification with a family member outweigh a sovereign nation's interest in controlling its borders? This question, long debated by courts, legislators, and policy-makers, is now emerging as an important civil rights issue for the general public. President Donald J. Trump's recent executive orders banning immigrants from several predominantly-Muslim countries had the effect of separating spouses from spouses, parents from children, and children from grandparents. (1) These separations were quickly seized upon in the media as violations of human decency and civil rights. (2) Although courts granted injunctions of the orders primarily due to the likelihood that enforcement of them would violate the procedural due process rights of green-card holders and the free exercise of religion rights of Muslims, the issue of family reunification was raised in some of the cases and mentioned briefly in court opinions. (3) The family reunification question will likely be addressed more fully soon, either in the cases already filed or cases brought in response to new, more carefully crafted orders.

When a court does directly address this issue, what will the answer be? I argue that today, courts will recognize family reunification as an interest of constitutional import, and will balance that interest against the genuine national security interests of the government. Understanding why this is so requires an analysis of the shifting and complex relationship that the right to family unity and the government's power over immigration have had since our nation's founding. These two principles have always been in conflict, but their relative strength has waxed and waned over time. Today, our constitutional jurisprudence has become nuanced enough that the individual rights of families can be balanced with the interests of the state.

In this Article, I trace the history of this relationship, exploring the major shifts and upheavals. I argue that family rights and the federal immigration power have had three very different relationships over time. In the first period, family rights were robust but extraconstitutional, a bedrock assumption of how American democracy operated. Regardless of whether the nation was in a mode of conquest and expansion (and therefore encouraged European migration to help "civilize" the new nation), or in a mode of restriction (actively circumscribing immigration), family relationships were assumed by courts, administrators, and citizens to be important enough that they could override the state's interest in regulating its borders. In the second period, which began roughly with the quota system in the 1920s and continued roughly through the 1980s, courts shifted to conceiving family rights and the immigration power as conflicting with one another, and when pressed they usually found that the government's interest in restricting immigration and protecting its borders outweighed the interests of individual families in reuniting. Most recently, as family law itself has become "constitutionalized," a new understanding is emerging, whereby individual family members have a constitutionally protected interest in their relationships, and the state's national security and border regulation interests are recognized still as significant but must be balanced with these interests. This latest balancing trend is not unique to the particular relationship between family reunification and the immigration power, but that relationship is an important, and underappreciated, example. (4)

This argument necessarily paints history with a broad brush. It goes without saying that the trends I observe here were never universal and always contested, as many scholars have explored at length elsewhere. (5) Today's family law, constitutional law, and even immigration law still contain vestiges of these other periods. (6) I argue, however, that over large periods of time, we can begin to discern changes in the tide: a change in the common understanding of "rights" in general and "family rights" in particular, a change in courts' understanding of the role of the federal government in national security and border regulation, and a change in the relationship of individual rights to this power.

This argument proceeds as follows. Part I explores the common law concept of "family rights" and their relation to migration during, first, a time of expansion, and second, a time of restriction. Part II explores the rise of what I call the "security state," and the use of the plenary power doctrine to bolster congressional and executive power at the expense of family unity. Part III examines recent United States Supreme Court cases that call this doctrine into question, showing how, taken together, they point to a new understanding of the balance between the government's interest in maintaining its borders and citizens' interests in maintaining their families. Family reunification is a right, but it does not outweigh legitimate national security interests. Congress and the Executive enjoy power over immigration, but not to the extent that they can arbitrarily ignore family ties.

1. THE AGE OF THE UNITARY FAMILY

   The text of the United States Constitution makes no mention of family. The Bill of Rights enumerates the right of the people to peaceably assemble, to keep and bear arms, to be secure in their persons against unreasonable searches and seizures, and many other specific rights, but the right to marry, the right to beget or bear children, the right to make decisions about the welfare of one's child, or the right to live with a family member are nowhere mentioned. (7)

   Also absent from the U.S. Constitution is a general power over immigration. True, the Migration Clause precluded Congress from prohibiting the migration or importation of people prior to the year 1808, (8) but this clause was widely understood to euphemistically refer to the slave trade. (9) The Constitution does grant Congress the power to "establish a uniform rule of Naturalization" (e.g., a rule for creating new citizens) (10) and with Reconstruction came the Fourteenth Amendment, which provided citizenship to anyone born on U.S. soil. (11) A general authority over the admission and removal of noncitizens, however, is conspicuously absent. (12)

   The textual absence of family and immigration from the Constitution reflects the social and political conditions under which it was written, and deep-seated assumptions about both family and migration, none of which is still true today. Over the years, courts have developed a constitutional jurisprudence of family rights for individuals and immigration powers for the government.

   For America's founders, and, indeed, for the first hundred years of the country's history, the family was a central, but unspoken, undergirding principle of democratic theory. As Nancy Cott has described it, the founders' "political theory of marriage" was "so deeply embedded in political assumptions that it was rarely voiced as a theory"; it "occupied the place where political theory overlapped with common sense." (13) At the center of this theory was the notion of marital unity. The common law "turned the married pair legally into one person--the husband." (14) Under the doctrine of coverture, a married woman lost her ability to manage her own property, enter into contracts, or establish an independent domicile. A husband's authority and responsibility over his household also extended to his children. (15) These family structures were inflexible status relationships. As Joanna Grossman and Lawrence Friedman have noted, "in the nineteenth century, in general, when two people married, they opted into a status that was clearly defined for them by law.... Marriage was a public institution; the state had a heavy stake in supporting it; and its terms were, in general, controlled by law, not individuals." (16) These terms were deeply gendered; marriage slotted men and women into particular roles that it was very difficult to resist. Women who tried, like Myra Bradwell, to fashion a different role for themselves, found that the institution of marriage itself could prevent them from doing so. When Bradwell sued the State of Illinois for its refusal to admit her to the bar, the Supreme Court sided with the state. Justice Bradley famously opined that it is a woman's "paramount destiny and mission to fulfil the noble and benign offices of wife and mother." (17)

   The common law understanding of family was also reflected in citizenship law. In 1855, Congress passed a statute that granted automatic citizenship to a woman who married a citizen, provided she was a "free white person" as required by the naturalization statute. (18) The statute also granted citizenship to the children of American male citizens. (19) Conversely, the 1907 Expatriation Act took away citizenship from a woman who married a foreigner. (20) This statute was famously upheld in MacKenzie v. Hare, where it was challenged by Ethel MacKenzie, a wealthy San Franciscan who had married a British citizen but remained with him in California. The Court justified her expatriation using the language of coverture. "The identity of husband and wife," it held, "is an ancient principle of our jurisprudence." (21)

   In the early days of the United States, this principle of family unity and the immigration power were rarely in tension with one another. The overwhelming goal of the nation was to expand its borders and settle new territory; it had not yet begun to actively restrict immigration, with the exception of ending the slave trade in 1808 and the Federalist Congress and President John Adams's attempt, through the 1798 Alien and Sedition Acts, to quash pro-French sentiment. (22) The national government encouraged westward migration and immigration from Europe through acts such as the Donation Land Act and the Homestead Act. (23) Sometimes these inducements mobilized the...