{"id":39,"date":"2018-01-26T16:46:56","date_gmt":"2018-01-26T21:46:56","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/?page_id=39"},"modified":"2025-05-12T11:10:22","modified_gmt":"2025-05-12T15:10:22","slug":"instilling-fear-and-regulating-behavior-immigration-law-as-social-control","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/in-print\/volume-31-issue-3-spring-2017\/instilling-fear-and-regulating-behavior-immigration-law-as-social-control\/","title":{"rendered":"Instilling Fear and Regulating Behavior: Immigration Law As Social Control"},"content":{"rendered":"

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<\/sup><\/p>\n

As to [noncitizens seeking admission], the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are <\/em>due process of law.2<\/sup><\/p>\n

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 \u201crapists and murders.\u201d 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<\/sup> 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<\/sup> 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<\/sup><\/p>\n

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<\/sup> 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<\/sup> 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<\/sup> 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.<\/p>\n

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<\/sup> 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<\/sup> In fact, one leading immigration scholar has dubbed this practice the \u201cbusiness as usual\u201d standard.11<\/sup> 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 \u201cpolitical branches\u201d in recognition of the plenary power doctrine.12<\/sup><\/p>\n

The President\u2019s 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<\/sup> 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<\/sup> 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<\/sup> 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\u2019s constitutional scrutiny.16<\/sup> 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<\/sup><\/p>\n

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<\/sup> Although the United States had largely open borders for its first one hundred years, followed by state regulation of immigration, by the late 1800\u2019s, 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<\/sup> 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<\/sup> 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<\/sup><\/p>\n

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<\/sup><\/p>\n

This article begins with a historical perspective, exploring the connection between the Supreme Court\u2019s 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<\/sup> Part One of this article provides a brief historical overview beginning with the nation\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

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 […]<\/p>\n","protected":false},"author":28,"featured_media":0,"parent":61,"menu_order":1,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-39","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/39","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/comments?post=39"}],"version-history":[{"count":2,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/39\/revisions"}],"predecessor-version":[{"id":1170,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/39\/revisions\/1170"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/pages\/61"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/immigration-law-journal\/wp-json\/wp\/v2\/media?parent=39"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}