Justice in Immigration.

AuthorMonomura, Hiroshi

Immigration law reduces to a few basic but difficult questions. Should we restrict entry by outsiders? If so, what principles guide those restrictions? And after a newcomer arrives, when is she no longer a "newcomer," but one of "us"? These three questions are deceptively simple when so phrased, but they are the core issues of law and policy. We should keep them in sharp focus, the mind-numbing complexity of the Immigration and Nationality Act notwithstanding.

We can answer these questions from different perspectives. One perspective involves policymaking through legislative and administrative processes. This is, of course, the staple diet of the Senate and House immigration subcommittees, as well as the Immigration and Naturalization Service, the Executive Office of Immigration Review, and other administrative bodies. Our three basic questions inform decisionmaking at this level, but inevitably the process consists of reactions seriatim to immediate political pressures and concerns. A thousand architects and a thousand carpenters have built the house of immigration law.

Where, then, do those who make immigration policy through legislative and executive processes find the basic principles and norms that guide them and sometimes limit their choices? The Constitution is the answer in many areas of American law. But in immigration law, the Constitution's ability to play this role is limited by the plenary power doctrine, which severely restricts judicial challenges to immigration decisions by the government.

One of the unfortunate consequences of the plenary power doctrine is the absence of a dialogue between the judiciary and the political branches based on a mature body of constitutional doctrine that sets out the fundamental values and the outer boundaries of immigration law and policy. True, the plenary power doctrine has undergone significant erosion over the past half-century. The Supreme Court has recognized a "limited judicial responsibility" to exercise constitutional judicial review in immigration cases.(3) On another occasion, the Court suggested that an immigration decision by the political branches must have a "facially legitimate and bona fide reason," or else it cannot withstand constitutional judicial review.(4) Some courts have exercised this limited scrutiny to strike down immigration decisions as unconstitutional.(5) Some courts have developed a procedural due process exception to the plenary power doctrine.(6) And other courts, while not striking down statutes as unconstitutional, have interpreted them to reach the same outcome.(7) In spite of all of this, the erosion of plenary power has not resulted in a coherent body of constitutional principles.(8) Constitutional norms play a role in advocacy, but it is very hard to predict when courts will be persuaded.

We need a constitutional compass, not only for policymakers in the legislative and executive branches, but also for judges when they interpret and apply immigration statutes. And those who would fashion that constitutional compass for these policymakers and judges need an even more basic sense of direction as they consider the fundamental questions of immigration law.

This is the context for the significant contribution made by Justice in Immigration, a collection of essays edited by Professor Warren F. Schwartz. As the title suggests, the authors use the language of justice and welfare to engage in a conversation about immigration law and policy. Is it ever "just" for borders to keep people out? If so, then when? Does immigration promote "welfare"? Whose welfare?

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Joseph Carens opens the book with an essay that not only introduces the other contributions but also deftly captures many of the tough issues for today's immigration policymaker. He groups issues under three separate but interconnected headings: "special claims," culture, and economics. By "a special claim," Carens means "a distinctive and compelling moral claim to admission." (p. 4) His point that refugees and families both have special claims makes sense, gently correcting the many policymakers who would not readily see the link. Moving to the second set of issues, Carens asks whether it is permissible to take culture into account in the initial selection of immigrants. And if so, how? And after initial admission, what degree of cultural adaptation may the receiving society legitimately expect of immigrants? As for the third issue -- economics -- to what extent should the economic interests of the receiving society guide its immigration policy? Even assuming that economic considerations should guide policy, how should we weigh the economic interests of different groups within the receiving society? And what about the economic terms of admission? What social entitlements should we provide newcomers? Carens conveys the treacherous complexity of these questions while providing a clear roadmap for the other authors' answers to these questions, including a brief but accurate summary of the other ten essays.

A collection of essays by eleven different authors hardly lends itself to detailed review in a few pages, and specific criticism of the views in the book is available in the book itself, as many of the essays respond to others. Rather, the focus here is not on their specific theses, but on their common ground in orientation and method. For many readers of a journal called Constitutional Commentary, the most intriguing aspect of this book will be its relationship with the constitutional aspects of immigration law. Precisely because the application of constitutional principles to immigration cases is so unclear, a parallel (or anterior) inquiry in the language of justice and welfare has great promise.

Much of the book asks...

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