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ImmigrationProf Blog
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New SSRN Articles

By immigrationprof

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

“Reflective Equilibrium and Constitutional Method: Lessons from John McCain and the Natural Born Citizenship Clause” MITCHELL N. BERMAN, University of Texas School of Law.  ABSTRACT: How should we settle on a theory of constitutional interpretation? Take the debate over originalism. How should we determine which of the contending views is correct? Presumably, the correct view of constitutional interpretation must be at least consistent with the truth about other adjacent matters too – like, say, the nature of law. But how should we go about reaching the correct theory of constitutional interpretation in a manner that best ensures this consistency condition is satisfied? A common approach, especially favored by some subset of contemporary originalists, is fairly described as foundationalist. For example, some originalists argue: that the practice of constitutional interpretation is the interpretation of a particular text; that interpretation just is the effort to ascertain the meaning that the text’s author intended to communicate; and therefore, that constitutional interpretation just is the effort to ascertain the meaning that the Constitution’s authors intended their text to communicate. Other originalists hold that originalism follows from the facts that a written constitution is designed to be authoritative or normatively binding and that law can have this authoritative character only by dint of the authority of its authors. These are some ways to reason about constitutional interpretation, but not the only ones. This essay explores the possibility that we can draw lessons about candidate normative theories of constitutional interpretation by assigning a more prominent role than is customary to purportedly shared convictions about the proper legal resolution of particular cases. It does so by adapting the Rawlsian method of reflective equilibrium to the constitutional domain and by focusing, as a case study, on the question of whether Senator John McCain is constitutionally eligible to serve as President consistent with the Constitution’s Natural Born Citizenship Clause. [BLOGGER’S NOTE:  JACK CHIN WROTE A MUCH-PUBLICIZED ARTICLE CONTENDING THAT MCCAIN WAS INELIGIBLE FOR THE PRESIDENCY.]  The method of reflective equilibrium maintains that our beliefs in a range of domains will be better justified if we seek coherence among considered judgments of general principles and of case outcomes, among other things, and that none of these different types of judgments is uniquely epistemically privileged: in principle, all judgments are revisable in light of all others. If this model applies to the constitutional domain, then the direction of argument between constitutional theory and constitutional case holdings would not be wholly unidirectional. While the correct outcomes in constitutional cases will often follow from applying the correct constitutional theory, the constitutional theory we deploy should itself be answerable to whatever strong considered judgments we may have about correct legal outcomes in particular cases. The ambition to use strong intuitions or convictions about particular cases to drive (provisional and rebuttable) conclusions about interpretive constitutional theory might seem circular on the supposition that our legal judgments about cases should be the products, not the grounds, of our constitutional theories. But perhaps that need not always be true. And it is not true, I argue, with respect to the question of McCain’s eligibility for the presidency. In short, careful attention to the question of McCain’s eligibility might reorient our thinking about how to think about methods of constitutional interpretation more generally, and provides further basis to doubt originalism.

“Ignorance is Effectively Bliss: Collateral Consequences of Criminal Convictions, Silence and Misinformation in the Guilty Plea Process” Iowa Law Review, Vol. 95, No. 1, 2009 JENNY ROBERTS, American University, Washington College of Law, Syracuse University College of Law.  [BLOGGER’S NOTE:  THIS TOPIC IS OF CRITICAL PRACTICAL IMPORTANCE IN LIGHT OF THE INCREASING EFFORTS OF THE U.S. GOVERNMENT TO REMOVE “CRIMINAL ALIENS.”]  Abstract:  In the 2009-2010 term, the United States Supreme Court will decide if it matters whether a criminal defense lawyer correctly counsels a client about the fact that the client faces deportation as a result of a guilty plea. Under prevailing constitutional norms in almost every jurisdiction, a lawyer does not have a duty to tell her client about many serious but “collateral” consequences of a guilty plea. Yet, in every jurisdiction that has considered the issue, that very same lawyer will run afoul of her duties if she affirmatively misrepresents a collateral consequence. Every jurisdiction, that is, except Kentucky, where the state Supreme Court recently held that when there is no duty to warn about a consequence because it is collateral, misadvice about that same consequence is not a constitutional violation. The collision of the collateral consequences rule, which imposes no duty to warn, and the affirmative misadvice exception, which imposes a duty to give accurate advice where a lawyer chooses to warn, leads to a perverse incentive structure that signals to defense lawyers (as well as prosecutors and the judge) that it is safest to say nothing at all about “collateral” matters. The Kentucky approach that the Supreme Court will review is equally troubling; it allows false information with no sanction or remedy. A cluttered and contradictory jurisprudence of informational rights in the guilty plea process sits at this intersection of the collateral consequences rule and affirmative misadvice exception. So-called collateral consequences often overshadow the direct penal sentences in criminal cases. In addition to deportation, courts categorize many other severe consequences as collateral, including involuntary civil commitment, sex offender registration, and loss of the right to vote, obtain professional licenses, and receive public housing and benefits. These consequences touch upon every important area of a convicted person’s life, for the rest of his life. They also matter enormously in the United States, which has more than 600,000 individuals exiting the prison system and millions more getting criminal records each year. They enter a society that is struggling to find ways to integrate them despite these considerable obstacles. The constitutional rule has not caught up to the current reality of the effect of these consequences on defendants, their families, and their communities. The Supreme Court has the opportunity to overcome the mythical divide between direct and collateral consequences and to protect the constitutional and ethical values which underlie a defendant’s right to decide whether to plead guilty based on full knowledge of material consequences. The Court will consider important issues of professional responsibility, ethics, transparency, and the right to information in the guilty plea process. This Article exposes the problems with the majority and Kentucky approaches. It argues that only a constitutional mandate of full information about serious consequences of guilty pleas will avoid the problematic incentive structures we have now.

“Rights, Remedies, & Habeas Corpus – The Uighurs, Legally Free But Actually Imprisoned” CAPRICE L. ROBERTS, Catholic University of America Columbus School of Law, West Virginia University College of Law.  [BLOGGER’S NOTE:  THIS MAY BE THE FIRST ARTICLE ON A TOPIC THAT RECENTLY HIT THE NATIONAL NEWS.].  Abstract:  For more than seven years, the Uighurs – Turkic Muslims who fled persecution in China only to be sold by Pakistani officials to the U.S. military for a bounty – have languished in the detainment facility in Guantánamo Bay, Cuba. Early on, the U.S. government admitted that the Uighurs are not enemy combatants. This summer, four Uighurs finally received extrajudicial relief and now reside in Bermuda; five secured release to Albania in 2006. Thirteen Uighurs remain confined at Guantánamo with their legal issues unresolved. Boumediene v. Bush extends the privilege of habeas corpus to detainees held in the U.S. Navy facility at Guantánamo. The Supreme Court did not articulate a clear remedy for detainees who have established a habeas violation. Any precedential value of Boumediene has been hollow for the Uighurs. The federal judiciary, in Kiyemba v. Obama, abdicated its power and denied the release remedy to the Uighurs despite their proven habeas violation. The court applied a harsh body of immigration cases, which do not fit the Uighurs‘ factual posture, to bar the federal judiciary from remedying the wrong. This article offers a theory of federal court jurisdictional and remedial power that properly balances the competing interests of Congress, the Executive, and detainees. In times marked by asymmetric lines of conflict, the federal judiciary must be watchful of political branch power grabs and should lean in favor of exercising jurisdiction and tailoring an appropriate remedy. Only then will the rule of law and appropriate checks and balances be restored for the American government and justice ensured for groups like the Uighurs.

“Passports in the Twenty-First Century” STEPHEN KRUEGER, Author of Krueger on United States Passport Law (2nd ed.)  ABSTRACT:  Passports are examined only occasionally in legal literature, such as by Professor Reale in 1931 and by Professor Jaffe in 1956. It is time once again to conduct an examination. During the latter part of the nineteenth century, official hindrance of international travel was at its ebb. With the advent of World War I, passports were required. There was some relaxation of passport requirements after that war, but they reemerged with the advent of World War II. Passport requirements remained after that war ended. Termination of the Cold War did not cause a reduction of passport requirements. Not solely in consequence of the Islamic War, the “passport question” (Professor Reale’s phrase) and the “passport problem” (Professor Jaffe’s phrase) are still with us. In an ideal world, the only criteria for issuance of a passport and for retention of an issued passport would be identity and nationality. That is, an applicant for a passport would have to prove only who he is and his political relationship with the issuing country in order to qualify for a passport. A person who holds a passport would only have to not lose his nationality in order to retain his passport. Reality, in the twenty-first century, is otherwise. Countries perceive passports as having the “real purpose[s]” (Professor Reale’s phrase) of travel control and social control. Even in relatively-free countries, passport issuance is deniable not only for inability to prove identity or nationality, and passport retention is terminable not only for loss of nationality. Grounds for denial or termination include a default on a monetary obligation to an issuing government, a failure to pay child support, being the subject of an arrest warrant, being a minor about whom there is a custody dispute, engaging in activities contrary to national security or foreign policy, and being a convicted football hooligan. There will not be abolition of passports, as Professor Reale favored. Passports will be instruments of social control, as Professor Jaffe favored. Despite reality, people with obligations of permanent allegiance to a government will continue to be denominated “citizens.” There will be few freemen; most people will be serfs or villeins. A freeman will obtain a passport effortlessly. A serf or villein who wants a passport will just have to keep his nose clean.

“Embodied Borders: The Union of Marital and Immigration Policy for the (Re)Production of Hegemonic US Citizens” SARA ANGEVINE.  ABSTRACT:  The marriage between a US citizen and non-citizen is one of the most intimate of inter-national relations and represents not only a venue for citizen ‘naturalization’ through the marriage visa, but also reflects the state’s intention for further citizen (re)production. The US policies which have regulated these transnational unions offer an excellent site in which to evaluate the development of the US ‘imagined’ citizen. This paper analyzes US marital policy through the lens of immigration policy, what I call marital immigration policy, and argues that this intersectional analysis illustrates the state’s production and reproduction of the hegemonic US citizen, along the lines of gendered behavior (proper wives and husbands), race (maintenance of white purity), sexuality (heterosexual reproduction), class (preservation of economic hierarchies) and religion (lifetime monogamy). Prior literature has illustrated the impact of these factors separately in the construction of US citizenship. I argue that through an analysis of the development of these two policies in concert, one can clearly distinguish how these factors of gender, race, sexuality, religion, and class police the borders of what types of bodies shall constitute US citizens and how they should behave, demonstrating that indeed ‘love’ does not conquer all.

“Interstitial Policymaking in the U.S. Courts of Appeals” ANNA O. LAW.  ABSTRACT:  The paper examines kinds of purposive behavior among Courts of Appeals judges in immigration cases and distinguishes this paper from the strategic behavior described in rational choice literature.

“Natural (Native) Born Citizen Defined” DAN Goodman.  ABSTRACT:  A natural (native) born citizen is one who is born with the territory of a government (country) and subject to its jurisdiction. Under the Constitution of the United States; at Article II, Section 5, Clause 1; a natural born citizen is a person born in the United States of America; in a different state, before the adoption of the Constitution of the United States and under the Articles of Confederation or a person born in the United States of America, in an individual State, under the Constitution of the United States. The Fourteenth Amendment created two citizens under the Constitution of the United States; a citizen of the several States, under Article IV, Section 2, Clause 1 and a citizen of the United States, under the first section of the Fourteenth Amendment. The proper question to be asked is if a citizen of the United States, after the adoption of the Fourteenth Amendment, can be considered a native born citizen (natural born citizen), under the Constitution of the United States, eligible to be President of the United States of America?

KJ