UnEqual Protection in Immigration Law by Carrie Rosenbaum

The Yale Journal on Regulation Notice and Comment continues its Symposium on Racism in Administrative Law with UnEqual Protection in Immigration Law by Carrie Rosenbaum.  She trenchantly criticizes the racism embedded in immigration law and its enforcement:

“Immigration law has contributed to shaping and reinforcing the construct of race more than any other area of administrative law. Congress and the Executive have shaped immigration law via express and implicit racial restrictions on membership in the United States political community, and with respect to the allocation of rights, such as racial restrictions on naturalization and national origin quotas – a proxy for race. The Court has historically exercised extraordinary deference to the Executive and Congress, validating these practices contrary to constitutional and democratic norms. Such deference minimizes the judicial review of equal protection challenges to facially neutral laws where outcomes are often dependent on proof of discriminatory intent. Immigration law’s exceptionality, or treatment as different from the perspective of mainstream constitutional law, reinforces implicit and systemic racial bias that already diminishes the ability to prevail in an equal protection challenge to a facially neutral law.”

KJ