New Immigration Articles
Arash Abizadeh (McGill), Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders, Political Theory 36.1 (2008): 37-65. Abstract The article challenges the widespread view that democratic self-determination implies the right of democratic citizens to unilaterally control their own polity’s immigration and naturalization laws.be relevant to scholars across disciplinary boundaries. The question of whether or not a closed border entry policy under the unilateral control of a democratic state is legitimate cannot be settled until we first know to whom the justification of a regime of control is owed. According to the state sovereignty view, the control of entry policy, including of movement, immigration, and naturalization, ought to be under the unilateral discretion of the state itself: justification for entry policy is owed solely to members. This position, however, is inconsistent with the democratic theory of popular sovereignty. Anyone accepting the democratic theory of political legitimation domestically is thereby committed to rejecting the unilateral domestic right to control state boundaries. Because the demos of democratic theory is in principle unbounded, the regime of boundary control must be democratically justified to foreigners as well as to citizens, in political institutions in which both foreigners and citizens can participate.
“Attrition through Enforcement: A Rational Approach to Illegal Immigration” Tulsa Journal of Comparative & International Law, Vol. 15, 2008 KRIS W. KOBACH (University of Missouri at Kansas City)
Abstract: The public debate about illegal immigration in the United States has been based on the false dichotomy that the only choices are either total removal of all twelve to twenty million illegal aliens or total amnesty. This article proposes a concerted strategy of attrition through enforcement such that if the risk of detention, prosecution and involuntary removal increases, and the probability of obtaining employment decreases, the only rational decision for an illegal alien is to depart the United States on their own. A nation-wide strategy of attrition through enforcement would require, most importantly, employer use of the E-Verify system to verify the work authorization of new employees. Additional components include increasing the removal rate of aliens not convicted of serious felonies, increasing the rate of detention during removal proceedings to prevent absconding, increasing agreements between ICE and state agencies, ending sanctuary cities; and increasing the number of ICE interior enforcement agents. Attrition through enforcement works as has been shown to work in Arizona and through the National Security Entry-Exit Registration System. If implemented nationwide, it would do much to restore the rule of law in immigration and gradually reduce the number of illegal aliens in the United States.
KOBACH IS PERHAPS ONE THE MOST ARDENT LAW PROFESSORS IN THE UNITED STATES IN FAVOR OF INCREASDED BORDER ENFORCEMENT.
ABSTRACT: Senator McCain was born in 1936 in the Canal Zone to U.S. citizen parents. The Canal Zone was territory controlled by the United States, but it was not incorporated into the Union. As requested by Senator McCain’s campaign, distinguished constitutional lawyers Laurence Tribe and Theodore Olson examined the law and issued a detailed opinion offering two reasons that Senator McCain was a natural born citizen. Neither is sound under current law. The Tribe-Olson Opinion suggests that the Canal Zone, then under exclusive U.S. jurisdiction, may have been covered by the Fourteenth Amendment’s grant of citizenship to “all persons born . . . in the United States.” However, in the Insular Cases, the Supreme Court held that “unincorporated territories” were not part of the United States for constitutional purposes. Accordingly, many decisions hold that persons born in unincorporated territories are not Fourteenth Amendment citizens. The Tribe-Olson Opinion also suggests that Senator McCain obtained citizenship by statute. However, the only statute in effect in 1936 did not cover the Canal Zone. Recognizing the gap, in 1937, Congress passed a citizenship law applicable only to the Canal Zone, granting Senator McCain citizenship, but eleven months too late for him to be a citizen at birth. Because Senator John McCain was not a citizen at birth, he is not a “natural born Citizen” and thus is not “eligible to the Office of President” under the Constitution. This essay concludes by exploring how changes in constitutional law implied by the Tribe-Olson Opinion, such as limiting the Insular Cases and expanding judicial review of immigration and nationality laws passed by Congress, could make Senator McCain a citizen at birth and thus a natural born citizen.
We have previously blogged about this article, which was discussed in a N.Y. Times article.
KJ