Immigration Rights and Immigration Enforcement

Harvard Law Review, April 2013 | Go to article overview

Immigration Rights and Immigration Enforcement


Contemporary American immigration law is at war with itself. It imposes hard-line restrictions and punishments upon many immigrants and their families yet, at the behest of some policymakers, embraces humanitarian goals in rhetoric and, at times, even in realized policy outcomes. It is sometimes the product of congressional compromise, but in practice it is often the province of unilateral executive action. Finally, it sometimes caters to state and local efforts to play more pronounced roles in immigration enforcement but, in other instances, commands a federal monopoly on enforcement.

The four chapters that follow engage these substantive and institutional tensions and further pose a fundamental question about the state of immigration law: what is the proper role of the judiciary when it encounters the conflicts and conundrums that these battle lines spawn?

* * *

No single development in the field of immigration better encapsulates and showcases these tensions than the Obama Administration's recent unfurling of its deferred action policy, an invocation of executive prosecutorial discretion to exempt some young undocumented immigrants from potential deportation. (1) Specifically, immigrants qualify if they entered the United States before their sixteenth birthday, had not reached the age of thirty-one by June 15, 2012, have not committed a felony or a series of misdemeanors, and have received a high school diploma, continue to work toward a high school diploma, or have served in the U.S. military. (2) An estimated 1.7 million young persons may benefit from the program. (3)

This solicitousness toward the predicament of young undocumented immigrants had long been manifested in the perennially proposed but never passed DREAM Act, (4) a model for the deferred action policy. (5) In granting qualifying immigrants a path toward citizenship, however, the DREAM Act would go much further than the Obama Administration's half-measure, which offers only temporary relief on a renewable basis and does not guarantee work eligibility. (6)

The announcement of the program, coming just a few months before President Obama's victory in the November 2012 presidential election, provoked both hearty praise (7) and vociferous condemnation. (8) One axis of this controversy closely tracks the first tension in current immigration law: the fight between hardliners and humanitarians. (9) When it comes to debates over prospective immigration policy, hardliners evince little willingness to countenance any proposals for legalizing the status of undocumented immigrants, (10) and many insist on ultimate deportation without exception as the only viable solution. (11) Humanitarians, by contrast, land somewhere along a spectrum of support for amnesty, from limited guest worker programs to full amnesty and a path to citizenship for the unlawfully present. (12)

Since the 2012 presidential election convincingly demonstrated the potent influence of Hispanic voters--who overwhelmingly supported President Obama's reelection and widely favored a humanitarian solution (13)--developments within both the Republican Party's elected elite (14) as well as the conservative punditry class (15) indicate that the hardliner approach may be on the wane. (16) Indeed, a bipartisan group of leaders in the U.S. Senate has promised a genuine push to pass comprehensive immigration reform in early 2013. (17) President Obama backs its efforts but has promised to release his own proposal if the congressional negotiations stall. (18)

However, stepping outside the debate about prospective policy and into the realm of enforcing the law on the books, the scales are largely tilted toward the hardliner position. Of course, if existing law embodies hardliner sentiments and policy preferences--and it does (19)--this observation should come as no surprise. In fact, however, the stringency and breadth of the contemporary immigration code has the effect of affording the executive substantial discretion to shape immigration policy. …

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