How Immigration Restrictions Undermine the Rule of Law
In an insightful contribution to the Yale Journal on Regulation online symposium on Adam Cox and Cristina Rodriguez’s important new book, The President and Immigration Law, UC Berkeley law Professor Daniel Farber describes how America’s system of immigration restrictions is inimical to the rule of law:
Here are the basic facts on the ground: Roughly eleven million people are living in the U.S. without legal permission, half of them having been here for ten years or more. The deportation system is capable of handling only a tiny fraction of those millions. At least for those who avoid arrest for serious crimes, deportation is seemingly a result of bad luck, aggressive enforcement officers, or shifting currents in immigration policy…
At present, Congress seems incapable of either providing a pathway to permanent status for settled immigrants or the wherewithal to deport millions of them. Staunch immigration opponents themselves seem to lack the stomach for a massive deportation program. Even our most vehemently anti-immigration president, Donald Trump, never asked Congress for the resources to identify and round up ten thousand people a day for about three years, which is what it would take to remove the current undocumented population. On the other hand, there is bitter opposition to regularizing the status of undocumented long-term residents….
Among its faults, the current system is at odds with the rule of law. The rule of law requires that government decisions deeply impacting the lives of individuals be based on a clear lawmaking process, not the discretion of executive officers. It also requires that the consequences of individual actions be predictable and clear, and that the legal system give people basic security in their ability to live their lives. No legal system can fully satisfy these aspirations, but immigration law falls dramatically short. Since any one of millions of people could be deported, none enjoy full security in their lives. As an operational matter, selection of individuals for deportation is determined by the executive branch, either at the retail level by immigration officers or wholesale through presidential policies. The statutes created by Congress tag millions of people as possible targets for deportation but fail to create workable rules for determining who actually gets
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