120 years ago, in May 1889, the U.S. Supreme Court ruled that "the power of exclusion of foreigners being an incident of sovereignty ... cannot be granted away or restrained." (1) Sixty years later, in January 1950, at the height of the Cold War, the U.S. Supreme Court reaffirmed the plenary power doctrine by holding that "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." (2) Another sixty years have passed and more recently, in February 2009, the U.S. Court of Appeals for the D.C. Circuit held that "a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion and admission." (3) The principle to decide "which alien may, and which alien may not, enter the United States, and on what terms," Judge Randolph firmly asserted, "has been a matter of political determination by each state--a matter wholly outside the concern and competence of the judiciary." (4)
In principle, the political branches continue to enjoy plenary power to decide who may enter and who may stay. But this is not the full picture. One should not think that nothing has changed since the nineteenth century, and that the political branches are given carte blanche to decide the rules of the immigration issue. As a matter of fact (and law), a lot has been changed since--in the United States and elsewhere. In the most detailed book on ethnic selectivity in immigration law, Christian Joppke shows how liberal democracies have generally abandoned ethnic selection and moved in a more liberal course. (5) Changes in domestic law and international human rights law have restrained states' power to regulate the terms for immigration selection. States can still control immigration, but they are more limited by some base-level standards of permissible and impermissible criteria. Determining the limits of what is permissible, and discussing whether permissible criteria include decisions made on the basis of race, religion and nationality, is the focus of this Article.
The topic of permissible and impermissible immigration criteria is a neglected field in constitutional law and political theory. There is little literature on the ethics of criteria for exclusion and inclusion of immigrants. It is also rare to find a detailed account on the ethics of permissible and impermissible criteria in other fields, such as security policies. Back in 1997, Vice President Al Gore's Report on Aviation Safety and Security noted that it is permissible to develop and implement profiling systems in aviation procedures for questioning and searching passengers--as long as the profile is not based on "national origin, racial, ethnic, religious or gender characteristics" of citizens. (6) In Canada, a Governmental Commission concluded that national security investigations can be based upon country of origin, but "must not be based on racial, religious or ethnic profiling." (7) In Europe, the Council of the European Union recommended that Member States develop and use terrorist profiles in combating terrorism--with special attention given to their use in immigration context. Factors of terrorist profiles may include nationality, place of birth, age, gender, and physical distinguishing features but must exclude race, ethnicity, and religion. (8) Why are these criteria impermissible, while others are permissible? What are the factors that make the difference? Little literature exists on the theory and typology of immigration criteria. This Article is intended to fill the gap.
The Article proceeds as follows: Part I offers an innovative approach to tackle the issue of immigration restrictions. It challenges the traditional concept in the literature under which criteria and justifications for controlling immigration are tied together. According to the conventional view, there are some permissible and impermissible justifications to limit immigration and, accordingly, some permissible and impermissible criteria. Thus, if one believes that preserving the national culture is a legitimate justification to restrict immigration, one usually concludes that it is also legitimate to use culture as a criterion for immigration selection. On the other hand, if one believes that cultural continuity is an unjustifiable purpose in restricting immigration, one usually concludes that immigrants' cultural backgrounds should be excluded from the process of immigration selection. Part I departs from this view by distinguishing between criteria and justifications. It calls for a two-stage process of immigration selection under which states will be required to present a legitimate justification to restrict immigration and, in addition, a legitimate criterion serving this justification. In other words: in order to restrict immigration, states will need to justify both the justifications and the criteria used. (9) The Article focuses on the second stage. It asks whether race, religion and nationality could ever be legitimate immigration criteria when they serve a legitimate purpose.
Part II is descriptive: It presents current immigration laws in the United States. In a pre-9/11 world, many scholars believed that race-based immigration law was withering away. (10) Part II shows that these forecasts were premature. Racial classifications continue to shape the process of immigration selection. Part II also distinguishes between different criteria used to select immigrants: race, ethnicity, religion, and nationality. These are different criteria that require a different analysis. Part II demonstrates how official and central race-based classifications remain to date. While there is a general process of liberalization--racial classifications have become less direct and arbitrary, positive rather than negative, nationality-based more than race-based--it was too early to celebrate their disappearance. Race-based criteria remain formal, group-based in nature, and apply to admission and naturalization. This reality has been strengthened by three reasons: the "War on Terror" and post-9/ll security concerns, ongoing cultural clashes between native and immigrant groups, and a process of reethnicization under which nation-states grant privileges to ethnic diaspora in admission and eligibility to citizenship.
Part III is normative: It asks whether the use of race, ethnicity, religion and nationality in immigrant selection can be legally permitted. The conventional view is that race, ethnicity and religion (as opposed to nationality) are impermissible criteria. Under this dichotomous view, there are clearly permissible and clearly impermissible immigration criteria. (11) Part III challenges this view by considering three normative disciplines to analyze race-based immigration classifications: constitutional law, international human rights law and moral philosophy. It shows that under each discipline, the use of race, ethnicity, religion and nationality could (and sometimes should) matter in the process of immigrant selection. This might not be desirable or a wise policy, but it still permits a narrow road to use race as a criterion in immigration policy. Part III also sketches the considerations required to withstand the legal conditions for such race-based use. In a nutshell, from a constitutional perspective, race can be a permissible criterion under the Fourteenth Amendment when it is based on reliable statistical evidence and as long as race is not the exclusive factor, whether the policy is racially motivated or not. The Fourteenth Amendment takes account of racial prejudice yet does not require satisfying strict scrutiny because immigration is usually seen as extraconstitutional area. From an international human rights law perspective, the prohibitions against racial discrimination have broad exemptions in the field of immigration. In principle, race can matter when its use is not arbitrary, serves a legitimate purpose and is proportional. From a moral perspective based on the principle of corrective justice, race can matter when it is aimed at correcting past wrongs, a kind of reparation for past exploitation. From a perspective of distributive justice, race can matter when it is intended at allocation of goods. In these situations, race-based classifications have different justifications, goals and scope, nonetheless they are not excluded per se; they are context-based.
Part IV focuses on one common justification invoked by some advocates of immigration restrictions--protecting national security. In a post 9/11 world, the use of race, religion and nationality in immigrant selection has increased. In the public debate, a common locution was the "yes, but" argument, that is, racial selection may be forbidden BUT the War on Terror is a different context. Under this view, avoiding enhanced scrutiny of Muslims would be "an invitation to further terror." (12) Part IV tackles the contention on the effectiveness of racial immigration criteria as a counterterrorism measure. It casts doubts on three issues: First, on the statistical level, the use of racial classifications often lacks statistical correlation. Second, on the effectiveness level, such use has not yet proved as cost-effective. Third, on the psychological level, there is an unconscious human tendency to use racial criteria more than their actual predictor contribution justifies. The "most-likely-strategy" is sometimes a cognitive bias and a psychological (and statistical) error. Hence, it is necessary to consider some alternatives for immigration selection.
Part V develops a typology of immigrant selection. It employs two tests--the policy's motivation and the policy's effect--to distinguish between legitimate and illegitimate cases: using racial criteria to achieve either a racial purpose or a nonracial purpose, and using facially-neutral...