New Immigration Articles from SSRN

Here are some new immigration articles available on the Social Science Research Network (www.ssrn.com):

“The Immigration Paradox: Alien Workers and Distributive Justice” U of Penn, Inst. for Law & Econ Research Paper No. 08-15 U of Penn Law School, Public Law Research Paper No. 08-32 HOWARD F. CHANG, University of Pennsylvania Law School:  The immigration of relatively unskilled workers poses a fundamental problem for liberals. While from the perspective of the economic welfare of natives, the optimal policy would be to admit these aliens as guest workers, this policy would violate liberal ideals. These ideals would treat these workers as equals, entitled to access to citizenship and to the full set of public benefits provided to citizens. If the welfare of incumbent residents determines admissions policies, however, and we anticipate the fiscal burden that the immigration of the poor would impose, then our welfare criterion would preclude the admission of relatively unskilled workers in the first place. Thus, our commitment to treat these workers as equals once admitted would cut against their admission and make them worse off than they would be if we agreed never to treat them as equals. A liberal can avoid this “immigration paradox” by adopting a cosmopolitan perspective that extends equal concern to all individuals, including prospective immigrants and other aliens, which suggests liberal immigration policies for relatively unskilled workers. I argue that liberal ideals require a global view of distributive justice and that attempts to defend more limited conceptions of distributive justice that apply only within nations are ultimately question-begging. The problem with policy prescriptions based on global justice is the failure of most citizens to adopt such a cosmopolitan perspective. As long as citizens are reluctant to bear the fiscal burdens that cosmopolitan liberalism would impose, constraints of political feasibility may imply that guest-worker programs are the best policies that cosmopolitan liberals can obtain with respect to many aliens.

I RECOMMEND ANYTHING BY HOWARD CHANG, who is a trained economist as well as lawyer. 

“The Border Search Exception as Applied to Exit and Export Searches: A Global Conceptualization” Quinnipiac Law Review, Vol. 26, No. 1, 2007 LARRY CUNNINGHAM, St. John’s University School of Law The so-called “border search exception” to the Fourth Amendment permits law enforcement authorities to conduct searches of persons or objects that enter the United States. For routine border searches, the Fourth Amendment does not require any degree of suspicion or a warrant. The Supreme Court has never directly addressed whether this exception applies to exit searches: persons or objects leaving the country. The lower courts have, for the most part, upheld such suspicionless and warrantless searches but their rationales have been divergent and often supported with summary conclusions. Academic critics and a few dissents have argued that the Fourth Amendment prohibits the searching of exiting individuals or property at the border unless the authorities have, at a minimum, some degree of suspicion. They argue that the rationales for the border search exception only support incoming searches. In this article, I will show that routine suspicionless and warrantless searches of exiting individuals and property are inherently “reasonable” under the Fourth Amendment, but not necessarily for the reasons espoused by a majority of courts. Those that have considered this issue have had an overly narrow view of both the problem and the impact. I will propose a new, global way of conceptualizing the interests of both the government and the individual. In Part I of this article, I will give an overview of the border search exception. In Part II, I will discuss the principal cases applying the border search exception to exit or export searches, as well as the criticisms of these cases. In Part III, I will demonstrate that the rationales for the border search exception, in general, applies to exit searches. In an Appendix, I have included a circuit-by-circuit and state-by-state list of the cases that have considered this issue.

“The Local Dilemma: Preemption and the Role of Federal Standards in State and Local Immigration Laws” Southern Methodist University Law Review, Vol. 47, p. 61, 2008 NATHAN G. CORTEZ, Southern Methodist  The recent flurry of state and local laws targeting immigration forces us to confront what role, if any, sub-federal governments should play. Our federalist system has carved out an amorphous role for sub-federal governance. Despite decades of pronouncements from the legislative, executive, and judicial branches, the role of state and local governance remains stubbornly undefined, teetering between permissible exercises of authority to regulate education, employment, and other traditional state concerns, and impermissible encroachments on the near-exclusive federal authority to regulate immigration. A line of cases beginning with DeCanas v. Bica has held that certain state laws may distinguish between classes of immigrants only if states adhere to federal immigration standards. The recent wave of state and local laws has placed great faith in the ability of state and local government employees – and even private citizens – to determine immigration status by adhering to federal standards without deviating from those standards or creating their own in violation of the Supremacy Clause. I use the decisions in Equal Access Education v. Merten to illustrate the dangers of this approach, applying this framework to recent local ordinance cases. I conclude that state and local laws should not avoid federal preemption simply by citing to or relying on federal immigration standards absent a clear finding that state or local agents will not systematically misapply federal standards. Determining immigration status should be the sole province of the federal government.

KJ