New SSRN Immigration Articles

Here are some New Immigration Articles from the Social Science Research Network (www.ssrn.com):

“Building Capacity for the Transnational Regulation of Migration” Columbia Law Review Sidebar, Vol. 110, pp. 1-11, February 2010 NYU School of Law, Public Law Research Paper No. 10-37 CRISTINA RODRIGUEZ, New York University – School of Law.  ABSTRACT:  Two significant conceptual errors frame the public debate concerning labor migration and the related phenomenon of illegal immigration. First, the immigration debate occurs largely within a domestic political framework, and the assumption that the United States can address immigration issues, particularly illegal immigration, through the perfection of domestic enforcement mechanisms pervades the discourse. But migration is inherently international, and its management requires engagement with other governments and with social facts beyond U.S. control. Second, the rhetorical emphasis placed on “fixing” our broken regime reflects a conception of immigration as a problem to be solved. But migration is a cross-border phenomenon produced by structural and historical factors that will only evolve, rather than disappear, and it therefore requires transnational management, rather than a one-time comprehensive legislative solution. In their contributions to the policy debate, scholars increasingly have emphasized the importance of addressing labor and illegal migration through bilateral and transnational frameworks – through accords that would recognize the interdependence of the United States and Mexico and engage our neighbor to the south directly. In this Essay, I seek to contribute to this strand of commentary by focusing on the actual mechanisms of transnationalism and the avenues they open up for advancing a meaningful bilateralism. I demonstrate that the cross-border administrative law space created by these mechanisms is occupied not just by international entities, but also by entanglements between the domestic institutions of different countries. I emphasize the importance of identifying and then building the mechanisms of bilateralism, or the cross-border institutional capacities needed for managing migration in a manner that promotes burden-sharing, or that ensures that both sides of the bilateral relationship reap benefits and bear costs, in rough proportion.

 “Conflicting Signals: Understanding US Immigration Reform Through the Evolution of US Immigration Law” Catalan Journal of Public Law, Vol. 40, p. 145, 2010 Widener Law School Legal Studies Research Paper No. 10-18 JILL E. FAMILY, Widener University – School of Law.  ABSTRACT:  This essay, published in the Revista catalana de dret public (Catalan Journal of Public Law), highlights the conflicting signals sent throughout the history of US immigration law. One consistent feature of the development of US immigration law is that it has exhibited signs of welcome and of tight control. Understanding this conflicted narrative helps to explain modern debates about immigration reform in the United States. The conflicting signals are evident in debates about the effectiveness of the system designed to select immigrants (including its enforcement features) and in debates over the future of the immigration adjudication system. Opposing views in these debates reflect the historical signals of welcome and of tight control.

 “The Citizenship Clause: A ‘Legislative History'” GARRETT EPPS, University of Baltimore School of Law ABSTRACT:  Recently, scholars and lawmakers have suggested that the United States, or even states, cease to recognize citizenship of the American-born children of undocumented aliens. This would seem to be a direct contravention of the text of the Fourteenth Amendment, which begins by saying, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Conservative legal scholars have begun to advance scholarly arguments suggesting that the “subject to the jurisdiction thereof” language was “intended” by the Framers of the Amendment to require legal status and “full allegiance” to the United States to activate the citizenship guarantee. A review of the legislative debates during the framing of the Amendment reveals little evidence to support this contention. It indicates that the language was designed to exclude two and only two groups: (1) children of diplomats accredited to the United States and (2) members of Indian tribes who maintained quasi-sovereign status under federal Indian law as it existed in 1868. The contrary contention arises out of a partial and strained reading of the debates and an at best partial understanding of the intellectual background of the Amendment. That proponents of a narrower view propound their interpretation as embodying the “clear intent” of the Framers seems to contrary to the record as to raise questions about the very meaningfulness of “originalist” arguments in general.

“The Constitutionality of the Taxation Consequences for Renouncing U.S. Citizenship” Florida Tax Review, Vol. 9, No. 11, 2010 WILLIAM THOMAS WORSTER, The Hague University.  ABSTRACT:  Individuals that renounce their U.S. citizenship are held to a special taxation regime as a consequence for their expatriation that is unique in the world and, this article will argue, unconstitutional. Originally, renunciation of citizenship was seen as the ultimate income tax reduction device, but this option has now lost much of its attractiveness as Congress has passed “exit tax” provisions that impose a tax liability on individuals who have renounced U.S. citizenship similar to that imposed on U.S. citizens. This article will argue that, as it currently stands, the exit tax is not constitutional because it is not narrowly tailored to achieve a compelling government interest and must be judged at that standard because it infringes on the fundamental right to expatriate and discriminates based on national origin.