The second-order structure of immigration law.

• Author: Cox, Adam B.

INTRODUCTION I. OVERVIEW OF AMERICAN IMMIGRATION LAW A. First-Order Policy Preferences B. Second-Order Institutional Design C. Constitutional Restrictions II. THE THEORY OF SECOND-ORDER IMMIGRATION DESIGN A. Information and Screening Devices B. Risk and Country-Specific Investment C. Other Factors D. A Comparison E. Positive Implications III. THE SECOND-ORDER STRUCTURE OF AMERICAN IMMIGRATION LAW A. Ex Ante vs. Ex Post 1. The shift from exclusion to deportation 2. The gap between exclusion and deportation grounds 3. Constitutional constraints on second-order design B. The Ex Post System: Illegal Immigration and Guest Workers 1. Reconceptualizing illegal immigration 2. The guest worker alternative C. The Ex Ante System: Family Migration and Alternatives CONCLUSION INTRODUCTION

Immigration law has long been underappreciated in the legal academy but, as so often happens, the pressure of current events is causing scholars to rethink old ideas. Two such events are of special importance. First, the U.S. government's reaction to the 9/11 attacks raised questions about the extent to which the norms of equal protection apply to noncitizens on American soil. In the immediate aftermath of the attacks, federal officials conducted sweeps in which they rounded up over a thousand noncitizens on alleged visa violations. Nearly all of these noncitizens were from predominantly Muslim countries. Many were detained for months without charges, and some were eventually released without ever being charged. (1) The Department of Justice subsequently pursued several other immigration initiatives that targeted noncitizens from predominantly Muslim countries. (2)

Second, the influx of undocumented aliens in the 1980s and 1990s, most of them Hispanic, has brought to the headlines the traditional litany of complaints about immigration: that noncitizens take the jobs of citizens, that they overwhelm social services, and that they cannot be assimilated if they arrive in excessive numbers. (3) In the early 1980s, undocumented immigrants made up a small fraction of the entering flow of immigrants, with approximately 130,000 crossing the border each year. (4) By the late 1990s, however, nearly one million undocumented immigrants were entering the United States each year--roughly the same number as were immigrating through legal channels. (5) Today, Congress is debating whether to overhaul the immigration system. The reform proposals include criminalizing unauthorized presence in the United States and creating a large-scale guest worker system. (6)

The current debates differ from many of the major historical debates about immigration policy inasmuch as they focus on what we will call second-order issues of institutional design rather than first-order issues of immigration policy. First-order issues address the ultimate ends of immigration policy: simplifying greatly, these ends entail admitting the state's desired quantity and types of immigrants. Quantity refers to the number of noncitizens granted lawful permanent residency every year. In the United States, the quantity of legal entries per year has varied between 400,000 and 1.8 million over the last three decades. (7) Type refers to the characteristics of the people who are granted lawful permanent residency--their status as family members of U.S. citizens, their work skills, their ability to assimilate, and related characteristics. Second-order design issues concern the legal institutions that are used to implement the first-order policy goals. Focusing on second-order design raises the question of how to screen applicants for admission so that the desired types are admitted and others are excluded.

The academic literature on immigration law and policy has largely neglected these second-order questions of institutional design. Its focus has been almost exclusively on two other questions: on the first-order question of how many, and whom, to admit; (8) and on the question of what role courts play in policing immigration policy. (9) But the second-order question is at least as important as the first-order question. Indeed, if a state makes poor second-order design choices, the importance of the first-order question fades: one cannot have an immigration policy if one cannot enforce it. And the role of courts cannot be understood apart from broader issues of institutional design. (10)

One of our contributions is to identify the importance of second-order questions and provide a framework for addressing them. A central design choice for any state, we argue, is the choice between ex ante and ex post screening. Under an ex ante approach, a state decides whether to accept a particular immigrant on the basis of pre-entry information, such as the immigrant's race or her educational achievement in her home country. In contrast, an ex post approach selects immigrants on the basis of post-entry information, such as her avoidance of criminal activity or unemployment in the host country. The ex ante approach generally, though not unavoidably, leads to a system of exclusion at the border; the ex post approach necessarily leads to a system of deportation. Much of the history of immigration policy can be characterized by one of these two main approaches, but little effort has been made to explain why a state would select one approach or the other.

We explore the advantages and disadvantages for a self-interested state of the ex ante and ex post approaches, as well as combinations of these approaches, and generate predictions about the circumstances under which one approach will dominate. We argue that immigration screening presents an information problem, and that the comparative effectiveness of ex ante and ex post screening turns in part on the solution to that problem. (11) The main screening advantage of the ex post system is that it uses more information (both about the immigrants and about the country's current needs) than the ex ante system does, which minimizes errors. The main advantage of the ex ante system is that it reduces the risk faced by potential immigrants that they will be deported, so that risk-averse noncitizens are more likely to enter and invest in the country than they are under the ex post system. There are also other important tradeoffs. The ex post system requires a probationary period that can be costly--if, for example, dangerous noncitizens commit crimes before being evaluated and deported, or if immigrants develop local ties that are disrupted by deportation. By contrast, the ex ante system can avoid these costs by excluding people at the border. Moreover, the two systems depend on different enforcement schemes, though it is unclear which is more costly: the ex ante system depends on the ability to control the border; the ex post system depends on the ability to detect noncitizens in the host country's territory. (12)

Our framework clarifies numerous positive and normative questions about immigration law. We argue that port-of-entry exclusion systems (which are predominantly ex ante) result in poorer screening than post-entry deportation systems (which are predominantly ex post), but also encourage risk-averse immigrants to make country-specific investments of value to the host country, and may be cheaper to enforce. The choice between the two systems turns in part on tradeoffs among these variables. We also argue that although the U.S. de jure system is highly (although not entirely) ex ante, the U.S. de facto system is predominantly ex post--this is the "illegal immigration system" that results from deliberate underenforcement of immigration law plus periodic amnesties. We explain why, for immigrants covered by the illegal system, the government might prefer such ex post screening to an ex ante regime. And we argue that the government might choose the illegal system over a legal version, which would be a large-scale guest worker program, because the illegal system skirts constitutional restrictions that would reduce the advantages of a legal program. We also use our theory to explore why the role of ex post screening in the American system has steadily increased over the last century, and discuss the potential second-order policy justifications for America's uniquely family-based immigration system.

Our plan is as follows. Part I contains a brief description of the three conceptual elements of immigration law and policy: the first-order policy goals; the second-order rules of institutional design; and constitutional restrictions. Part II sets out our theory of second-order institutional design: we show how information problems motivate the choice between ex ante and ex post screening and lay out several positive implications of our theoretical model. Part III uses the theory as a lens to analyze American law. It argues that many features of immigration law are consistent with the factors identified in our theory of second-order institutional design, and speculates that divergences between theory and practice may in part be attributable to constitutional restrictions.

1. OVERVIEW OF AMERICAN IMMIGRATION LAW

   In this Part, we briefly survey immigration law in the United States to highlight the ways in which it reflects second-order design choices and constitutional constraints, not merely first-order policy goals.

   1. First-Order Policy Preferences

      A central goal of immigration policy for all states is, at a very high level of abstraction, to expand the polity by admitting desirable people. (13) Nonetheless, states have different attitudes about which potential immigrants are desirable under various circumstances. These differences lead states' first-order policy preferences to diverge along three main dimensions: with respect to the quantity of immigrants, the type of immigrants, and the terms of admission. (14)

      Quantity. States can choose a range of numerical restrictions. At one extreme, a state permits no immigration; at the other extreme, a state permits...