Sovereignty migrates in U.S. and Mexican law: transnational influences in plenary power and non-intervention.

• Author: Hernandez-Lopez, Ernesto

ABSTRACT

Mexico and the United States exercise sovereignty that is increasingly transnational and less absolute with respect to migration. This is evident in changes to Mexico's norm of nonintervention and the United States' plenary power doctrine, two doctrines rooted in international sovereignty. Both have historically defined sovereign authority in absolute terms, avoiding any foreign influence or domestic limitation. The nonintervention norm prohibits Mexican foreign relations from interfering in another state's domestic affairs. Traditionally, it barred a foreign policy on migrants in the United States, which led to Mexico's "no policy" on migrants. The U.S. plenary power doctrine labels immigration law as immune from judicial review because the political branches have complete, "plenary" authority over it. Traditionally, the plenary power doctrine barred constitutional limitations to this migration authority.

Since 2001, two events have occurred that indicate a slight migration from the plenary power doctrine and non-intervention norm's traditional conceptions of sovereignty. First, in Zadvydas v. Davis, the U.S. Supreme Court explicitly stated that the plenary power doctrine is "subject to important constitutional limitations." Second, Mexico has actively lobbied U.S. lawmakers for reforms to U.S. immigration laws, an effort sometimes called the "whole enchilada." These developments lead to the opposite conclusions espoused by each doctrine: that there are constitutional limits to the plenary power doctrine and that foreign relations may influence another state's lawmaking.

TABLE OF CONTENTS I. MIGRATION: A TRANSNATIONAL SUBJECT AND A TRANSNATIONAL ANALYSIS II. ABSOLUTE SOVEREIGNTY IN NON-INTERVENTION AND PLENARY POWER A. Non-Intervention Externally Protects Absolute Sovereignty B. Plenary Power Internally Protects Absolute Sovereignty III. MIGRANTS AND MEXICO'S REINTERPRETATION OF NON-INTERVENTION A. Seeking Change in U.S. Laws for Mexican Domestic Benefit B. Consular Representation without Fear about Interference Abroad C. Tailoring Domestic Nationality Law to Influence U.S. Politics D. Mexico-Initiated International Negotiations to Change U.S. Law E. Seeking Change to U.S. Immigration Policy IV. "LESS IS MORE": PLENARY POWER AND TRANSNATIONAL STEPS FROM ABSOLUTES A. Zadvydas v. Davis: Transnational Limits to Plenary Power B. Demore v. Kim: Not Applying Zadvydas Limitations and Less Plenary Power C. Clark v. Martinez: Extending Zadyvdas Limitations, More Avoidance D. Avoidance: Avoids Absolute Sovereignty and Develops New Norms V. CONCLUSION Does domestic law reinterpret conceptions of international sovereignty (1) when it decides questions of international migration? Yes; recent changes in the legal landscape governing migration--namely, Mexico's foreign relations doctrine of non-intervention and the plenary power doctrine traditionally applied by the United States to immigration issues--indicate a distancing from traditional conceptions of sovereignty. (2) These doctrines are rooted in international sovereignty, and both historically defined sovereign authority in absolute terms, attempting to stop any foreign influence or domestic limitation. (3) Nonintervention prohibits Mexican foreign relations from interfering in another state's domestic affairs. (4) Traditionally, it also barred a Mexican foreign policy on migrants in the United States because such a policy "intervened in US jurisdiction," which violated both the non-intervention norm and the United States' international sovereignty. Consequently, non-intervention doctrine had a significant influence on Mexico's traditional "policy of no policy" on migrants. (5) The plenary power doctrine of the United States, on the other hand, labels immigration law as immune from judicial review because the political branches have complete, "plenary" authority over immigration. (6) Traditionally, the doctrine barred constitutional limitations to this authority. (7)

This Article makes two central claims: (1) contemporary developments in the norm of non-intervention in Mexican foreign relations law and other developments in the plenary power doctrine of U.S. immigration law suggest that states may apply sovereignty-based legal doctrines regarding migration in less absolute and traditional manners, and (2) this distancing from traditional conceptions of sovereignty implies that sovereignty may be defined in increasingly transnational terms. These doctrinal claims stem from observations of two events. First, in 2001, contrary to a century of precedent, the U.S. Supreme Court in Zadvydas v. Davis explicitly stated that plenary power over immigration is "subject to important constitutional limitations." (8) Second, in the same year that the U.S. Supreme Court decided Zadvydas, Mexico conducted its most active campaign--colorfully labeled by some as the "whole enchilada" (9)--to lobby U.S. lawmakers to reform U.S. immigration law, an action that was itself contrary to traditional interpretations of non-intervention. These developments point to the opposite of each doctrine's conclusion: that there are constitutional limits to plenary power and foreign relations may influence another state's lawmaking.

As its title suggests, this Article argues that sovereignty, as envisioned in the United States' plenary power doctrine and in Mexico's non-intervention norm, has moved from a traditional concept to one that is more transnational. Just as millions of people in U.S. and Mexican history have crossed, and will cross, political borders, sovereignty may similarly cross conceptual borders. Consequently, this Article's approach is transnational, examining international migration's influence on domestic law in Mexico (a migrant-sending state) and in the United States (a migrant-receiving state). It also presents cross-border migration as a transnational subject, which differs from the traditional view that migrants that cross national borders influence only host states, while severing ties to sending states. (10) This transnational lens is comprised of one phenomenon (international migration), one international law concept (sovereignty), and an examination of how two states' legal systems consequentially but distinctly reinterpret sovereignty. For both states, even though the examined experiences are distinct, their common legal thread is sovereignty. (11) It is the source of authority for a state's foreign relations power and power to control migration and borders. (12) It is central to both doctrines' justifications.

The transnational picture is "eye-catching" for a student of international law because the plenary power and non-intervention doctrines are based on absolute sovereignty ideals, which are, conceptually speaking, diametrically opposed to transnational influence. (13) These doctrines were "conceived as ... nineteenth century application[s] of absolute sovereignty." Traditionally applied, they have the same ultimate goal: to "protect independent and autonomous sovereign authority." (14) In an absolute fashion, plenary power shields domestic political authority over immigration regulation. (15) Similarly, the norm of non-intervention shields a state's domestic affairs from foreign influence. (16)

This Article takes a transnational approach to a transnational subject and provides an introductory observation in the next five sections on how international migration influences changes in legal sovereignty reasoning. Part I describes the scholarly significance of transnational analysis. First, it explains how migration can be studied as a transnational subject and describes definitions and approaches from the migration studies discipline. It then expands on Philip Jessup and Dean Harold Koh's ideas on transnational law, using those ideas as guideposts to identify how legal interpretations in Mexico and the United States change with exposure to migration. (17) Part II describes how the U.S. plenary power and Mexican non-intervention doctrines are based on absolute sovereignty ideals. (18) Both doctrines envision sovereign authority, over migrants in national territory and over domestic law-making or migrant regulation, as exclusive and without limitations.

Part III reports on the ways in which Mexican foreign relations law has reinterpreted the norm of non-intervention and altered its application in response to continual emigration by Mexican nationals. Historically, the norm resulted in a "policy of no policy," with Mexican foreign policy not advocating for its nationals abroad. Since the mid-1990s, however, Mexican foreign relations have deviated from this tradition. Five examples illustrate this: (1) aggressive lobbying of U.S. lawmakers for changes to U.S. immigration law in 1996, (2) consular programs for Mexicans in the United States, (3) changes in Mexican nationality law that permit Mexican nationals to become dual-nationals, (4) negotiations between Mexico and the United States on an immigration agreement, and (5) the presentation of foreign policy positions that advocate for Mexican nationals during U.S. legislative debates on immigration reform. In these five examples, the norm is applied transnationally because events outside Mexican territory and within U.S. jurisdiction motivate these policies. Sovereign authority over migration is not defined as exclusive to one state, i.e. U.S. jurisdiction, but is instead regarded as inviting Mexican influence.

Part IV comments on the transnational turn that the U.S. plenary power doctrine has taken in recent years. Supreme Court decisions such as Zadvydas, Demore v. Kim (2003) and Clark v. Martinez (2005) suggest that the doctrine is applied with less frequency and in a less absolute manner than in the past. (19) In each of these decisions, the Court--contrary to the urgings of the government--did not base its decision solely on plenary power reasoning, which it could have done. Instead, it interpreted...