Volume 31
Issue 3
Spring '17

Instilling Fear and Regulating Behavior: Immigration Law As Social Control

Written By: Lori A. Nessel

Abstract

Probably no other area of American law has been so radically insulated and divergent from those fundamental norms of constitutional right, administrative procedure, and judicial role that animate the rest of our legal system.1

As to [noncitizens seeking admission], the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.2

Immigration law has been aptly described as offering a window into our national psyche. As evidenced in the recent presidential campaign, our national psyche is in a state of heightened anxiety, particularly with regards to immigrants. President Trump tapped into and stoked this fear with vows to build a wall at our southern border, bar Muslims from entering the country, and deport Mexicans dubbed “rapists and murders.” From the initial days of the new Administration, it became clear that this fear of foreigners would play a central role in re-shaping immigration policy and in regulating the behavior of immigrants, and citizens, within the nation. For example, shortly after assuming office, the President issued an Executive Order barring all refugees from entering the United States for three months, indefinitely barring Syrian refugees, and prohibiting visas for nationals of seven Muslimmajority nations.3 The President also signed Executive Orders to build a wall at our Southern border, enhance interior enforcement efforts and dramatically increase detention and deportation directed at all unauthorized immigrants within the nation.4 Even if the new administration cannot effectively build a wall to seal off our southern border or detain and deport upwards of nine million undocumented immigrants, the new climate of fear is already serving to control the immigrant population.5

In prior scholarship I have focused on the ways in which borders, traditionally perceived as the locus for immigration regulation, have shifted, simultaneously creeping inward and expanding outward. The inward seepage has even permeated the workplace, with employers essentially deputized to enforce immigration laws.6 Unofficial and unauthorized regulation of the border is also carried out in cases where hospitals, using for-hire private transportation companies, deport uninsured immigrant patients.7 Meanwhile, our external borders have pushed out into the sea and onto other nations, who reap benefits in exchange for deterring migrants and enforcing United States immigration regulation.8 This fluidity of immigration regulation and its tendency to push deeply inward into domestic arenas while also reaching out beyond our territorial borders, merits a re-examination of the nature of immigration law beyond its traditionally-perceived role as an Executive and Congressional tool for advancing foreign policy and protecting national sovereignty. While much scholarly attention has been paid to critiquing the plenary power doctrine and to analyzing the criminalization of immigration law, this article explores the interaction between the plenary power doctrine and the domestic use of immigration law to create a heightened state of fear for immigrants within the United States.

Immigration law has long been used to carry out functions which would be deemed unconstitutional if attempted through our criminal justice or civil laws. For example, immigration law was widely used in the wake of September 11th, 2001 to target and detain particular groups of individuals without the constitutional constraints that would otherwise apply. Noncitizens of particular races, religions, or national origin, were rounded up and detained for prolonged periods without criminal charges.9 Such action did not even require new laws because immigration law has long allowed the Executive and Legislative branches to create and sustain laws that selectively discriminate against particular classes with minimal accountability.10 In fact, one leading immigration scholar has dubbed this practice the “business as usual” standard.11 It encompasses: an overreaching set of laws adopted by the Executive and/or Legislative branch during times of national insecurity; a tangible set of harms impacting particular foreign nationals as a consequence of these laws; blanket permission to the government to sustain such laws without any evidence of improved national security or stated benefits; and extreme deference by the courts to the “political branches” in recognition of the plenary power doctrine.12

The President’s recent Executive Orders test the limits of the Executive power to exclude groups of persons based on nationality or religion in the name of national security.13 As of this writing, federal district and appellate courts across the country have issued injunctions based on preliminary findings that the various incantations of the travel ban, in whole or in part, are unconstitutional and grounded in racial and religious animus.14 In defense of its Executive Orders, the Administration continues to rely on the centuries old plenary power doctrine to arg acting in the name of national security.15 While a present day executive mandate to exclude broad classes of persons from entering the nation based solely on their nationality or religion presents an opportunity for the Supreme Court to re-examine the viability of the plenary power doctrine, the Administration continues to retract and re-issue its travel bans, to date evading the Supreme Court’s constitutional scrutiny.16 If the Supreme Court ultimately reaches the merits of the challenges to the Executive Orders, it will have the opportunity to decide whether a doctrine which allowed for discrimination based on racial and national origin in the name of regulating immigration (at a time when racial segregation was constitutionally permissible on the domestic front) is still valid today. In other words, has the evolution of constitutional norms and jurisprudence in the domestic context finally pierced through the immunity and exceptionalism that has shielded immigration law since Congress first enacted the Chinese Exclusion Act in 1882?17

Since 1892, pursuant to the Plenary Power Doctrine, the Supreme Court has held that the power to regulate immigration rests with the Executive and Legislative branches, with the Judicial branch having an extremely narrow role, if any.18 Although the United States had largely open borders for its first one hundred years, followed by state regulation of immigration, by the late 1800’s, the Supreme Court linked immigration regulation with national sovereignty, foreign affairs, and the ability to stand on equal footing withue for unfettered executive authority when other free nations in the world.19 In characterizing immigration law as foreign and essential to our safety and relations with other countries, the Court insulated it from the type of judicial review and constitutional norms that would otherwise apply to domestic actions by the government.20 However, immigration law has also played an equally significant but less visible role. In addition to regulating the terms for entry and removal, immigration law has served as a powerful form of domestic law, aimed at controlling and shaping the behavior of immigrants within the United States. The government has relied upon immigration law to advance its domestic policy agenda on fronts as varied as labor law, health care, crime control and national security. Indeed, the ever-present threat of deportation is itself an important immigration enforcement tool. The new Executive Order on Interior Enforcement casts aside the prior policy of prioritizing criminal noncitizens for removal in favor of an enforcement strategy aimed at all nine to eleven million unauthorized immigrants.21

While Congress would need to authorize dramatically enhanced resources to carry out this massive deportation effort, the Executive Order serves an immediate function by instilling fear in the undocumented population. By calling for heightened detention and deportation efforts to the full ability available under the law, the entire undocumented population is put on notice that family ties, or length of time in the United States, will no longer offer safety. Terrified immigrants are then more likely to forego asserting their rights or challenging lower court decisions, adding another layer of immunity to state and private regulation of immigration.22

This article begins with a historical perspective, exploring the connection between the Supreme Court’s deference to the legislative and executive branches when regulating immigration and the myriad laws, policies, and enforcement strategies that are implemented and carried out in such a way as to (not unintentionally) instill fear in the immigrant community. This combination of constitutional immunity and fear of detection have given rise to a largely compliant workforce and population that demands little in return for the labor provided. Rather than examining this result as an unwanted or unintended consequence of enforcement measures, or even an effort to encourage self-deportation, I argue that one goal of immigration regulation within the U.S. has always been to instill fear and control immigrant behavior as a means of creating an obedient workforce and community. By shedding greater light on the domestic aspect of immigration regulation, this article complements existing scholarship advocating for greater judicial scrutiny and constitutional protections for immigrants.23 Part One of this article provides a brief historical overview beginning with the nation’s initial period of open immigration. By chronicling the growing anti-Chinese sentiment, like the anti-Muslim sentiment fostered by President Trump, this section shows how race-based animus and fear of the other led to the development of the plenary power doctrine, and the shielding of immigration law from constitutional norms. Part Two examines the Industrial Revolution and its impact on creating a compliant immigrant workforce. Part Three analyzes the way in which immigration law serves to regulate immigrant behavior within the nation. Part Four argues for greater constitutional scrutiny in immigration cases. Finally, Part Five scrutinizes the vast web of agencies which engage in de facto immigration enforcement, and its impact on immigrants.

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1. Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1 (1984).

2. Ekiu v. United States, 142 U.S. 651 (1892) (emphasis added).

3. EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES, Exec. Order. No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017), https://www.whitehouse.gov/thepress-office/2017/01/27/executive-order-protecting-nation-foreign-terrorist-entry-united-states [hereinafter PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY]. After constitutional challenges in courts across the country and a nation-wide injunction issued by a federal district court and upheld by the Ninth Circuit, President Trump issued a revised Executive Order. See EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES (March 6, 2017),
https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreignterrorist-entry-united-states, discussed infra. The revised Executive Order has been upheld in part by the United States Supreme Court. Trump v. Int’l Refugee Assistance Project, 582 U.S. __(2017), https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf (lifting the injunction against implementation of the travel ban but holding that it “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States”).

4. See EXECUTIVE ORDER: BORDER SECURITY AND IMMIGRATION ENFORCEMENT IMPROVEMENTS, Exec. Order No. 13767, 82 Fed. Reg. 8793 (Jan. 25, 2017), https://www.whitehouse.gov/the-pressoffice/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements; EXECUTIVE ORDER: ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES, Exec. Order No. 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united.

5. For just one example of the way that this heightened climate of fear is influencing behavior in
the immigrant population, see Michael L. Sulkowski, Unauthorized Immigrant Students in the United
States: The Current State of Affairs and the Role of Public Education, 77 CHILD. AND YOUTH SERVS. REV. 62, 62-68 (2017) (noting that students from immigrant families are more likely to be victimized and to have less recourse for protection and linking this in part to “the polarizing political discourse that currently is targeting these youth for mass deportation, social ostracization, and even violence in some cases . . .”). On September 5, 2017, U.S. Attorney General Jeffrey Sessions announced the end of the Deferred Action for Childhood Arrivals (DACA) program as of March 5, 2018. See Attorney General Delivers Remarks on DACA, U.S. DEP’T OF JUSTICE (Sept. 5, 2017), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-daca. This decision leaves approximately 800,000 young adults and children at risk of deportation as soon as March 6, 2018. While President Trump subsequently signaled a willingness to support a bipartisan effort to protect these children and young adults from deportation, the reality is that they, and their families and friends, now live in a state of uncertainty and fear.

6. Lori A. Nessel, Undocumented Immigrants in the Workplace: The Fallacy of Protection and the Need for Reform, 36 HARV. C.R.-C.L. L. REV. 345 (2001).

7. Lori A. Nessel, Disposable Workers: Applying a Human Rights Framework to Analyze Duties Owed to Seriously Injured or Ill Migrants, 19 INDIANA J. GLOBAL L. STUD. 61 (2012); Lori A. Nessel, The Practice of Medical Repatriation: The Privatization of Immigration Enforcement and Denial of
Human Rights, 55 WAYNE L. REV. 1725 (2009).

8. Lori A. Nessel, Externalized Borders and the Invisible Refugee, 40 COLUM. HUM. RTS. L. REV. 625 (2009).

9. Michael J.Wishnie, State and Local Police Enforcement of Immigration Laws, 6 J. OF CONST. L. 1084, 1085 (2004) (noting that in the aftermath of 9-11, federal authorities used immigration law to single out immigrants based on nationality or religion and to subject them to prolonged detention without access to counsel or family, sometimes without charges and often for prolonged periods, even after deportation proceedings were concluded).

10. See, e.g., Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006) (rejecting immigrant’s claim that
the government’s special registration requirements for nationals of particular countries violated his
right to equal protection and due process).

11. Shoba Sivaprasad Wadhia, Business As Usual: Immigration and the National Security Exception, 114 PENN ST. L. REV. 1485 (2010).

12. Id. at 1489.

13. See, e.g., PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY, supra note 3.

14. See, e.g., Trump v.Washington, Order No. 17-35105, D.C. No. 2:17-cv-00141 (9th Cir. Feb. 9, 2017), (temporarily restraining the entire Executive Order from enforcement nation-wide, upheld on appeal by the Ninth Circuit Court of Appeals), http://cdn.ca9.uscourts.gov/datastore/general/2017/02/27/17-35105%20-%20Motion%20Denied.pdf.

15. Trump v. Int’l Refugee Assistance Project, 582 U.S.__(2017).

16. For example, in Trump v. Int’l Refugee Assistance Project, 582 U.S.__(2017) the Supreme Court granted certiorari to decide the constitutionality of the Administration’s revised Executive Order and lifted the Ninth Circuit Court of Appeal’s injunction on the travel ban for those impacted who could not establish a bona fide relation to a U.S. person or entity. However, perhaps in an effort to avoid a ruling, which might signal the end of the plenary power doctrine, the Administration issued a third version of the travel ban on September 24, 2017. See EXECUTIVE ORDER BY PRESIDENT DONALD J. TRUMP PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES, Exec. Order No. 13780 (Mar. 6 2017), https://www.whitehouse.gov/the-press-office/2017/03/06/executiveorder-protecting-nation-foreign-terrorist-entry-united-states. The third version of the travel ban indefinitely bars travel to the United States from nationals of seven countries. Notably, Sudan is no longer one of these countries and Chad, and North Korea have been added in addition to heightened security standards for particular visitors from Iraq and Venezuela. Id. The Supreme Court subsequently dismissed the Fourth and Ninth Circuit pending challenges and remanded them to the Circuit Courts. See Int’l Refugee Assistance Project, 583 U.S.__(16-1436) (Oct. 10, 2017) (finding that the provision of the Executive Order being challenged on appeal from the Fourth Circuit Court of Appeals had expired and no longer presented a live case or controversy) and Int’l Refugee Assistance Project, 583 U.S.__ (16-1540) (Oct. 24, 2017) (similarly dismissing and remanding the challenge from the Ninth Circuit Court of Appeals based on the provision at issue expiring). As of this writing there are new challenges to the third version of the Executive Order pending before the Fourth and Ninth Circuits.

17. Chinese Exclusion Act of 1882, H.R. 5804, 47th Cong. (suspending entry of Chinese immigrants for 10 years). The Supreme Court will also need to evaluate Congressional intent when it amended the Immigration and Nationality Act in 1965 to remove the provisions that authorized national origin-based discrimination in immigration law. See 1965 Amendments to the Immigration and Nationality Act (Hart-Cellar Act), H.R. 2580; Pub. L. 89-236; 79 Stat. 911, 89th Cong. (Oct. 3, 1965) (abolishing the national origins quota system).

18. See Ekiu v. United States, 142 U.S. 651, 659 (1892) (holding that “As to [persons facing exclusion], the decisions of executive or administrative officers, acting within powers expressly conferred by congress, are due process of law”) (emphasis added); Chae Chan Ping v. United States, 130 U.S. 581, 589-90 (1889).

19. See, e.g., Chae Chan Ping, 130 U.S at 609 (“The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of
any one”); Ekiu, 142 U.S. at 659 (“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe . . . In the United States this power is vested in the national government, to which the constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the government . . .”) (internal citations omitted).

20. See, e.g., Peter J. Spiro, Explaining the End of Plenary Power, 16 GEO. IMMIGR. L. J. (2001); Hiroshi Motomura, Immigration Law after a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L. J. 545 (1990); Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 255 SUP. CT. REV. 1984 (1984).

21. EXECUTIVE ORDER: ENHANCING PUBLIC SAFETY IN THE INTERIOR OF THE UNITED STATES, supra note 4 (directing federal agencies to employ “all lawful means” to carry out federal immigration laws against “all removable aliens,” as compared with prioritizing certain categories of removable individuals).

22. Scholars have long-noted the chilling effect of immigration enforcement on immigrants’ ability to pursue statutory rights. For example, see Michael J. Wishnie, Immigrants and the Right to Petition, 78 N.Y.U. L. REV. 667 (2003), noting that “. . . millions of undocumented persons are working long hours for illegally low pay, in workplaces that violate health and safety codes, for employers who defy labor and antidiscrimination laws. Many more fall victim to criminal activity, forced into involuntary servitude and subjected to physical abuse. Yet these immigrants often do not report their harsh conditions and cruel treatment for fear that they will attract the attention of immigration officials and be deported.”

23. As discussed infra, the view of immigration law as political and part of foreign relations and essential for sovereignty has resulted in the plenary power doctrine that has served to insulate immigration law from constitutional norms and judicial scrutiny.