Immigration Law as Foreign Policy
Beginning in 1889, the US Supreme Court issued a series of rulings that the federal government held “inherent sovereign powers” to determine political membership - and exclusion - because otherwise it would be “subject to the control of another power” (Chae Chan Ping v.
United States 1889, 603 quoted in Varsanyi 2008, p. 884). Mobilizing “racialized narratives on the penetration of external menaces in national space through immigration” (Nagel 2002, p. 972), the Supreme Court considered noncitizens’ admission an issue of sovereign territorial power, enabling the limitation of judicial authority over immigration matters and culminating in what is understood as the “plenary doctrine of immigration.” Fong Yue Ting v. United States (1893) took the plenary doctrine one step further, ruling that the federal government retained sovereign right to deport noncitizens from the territorial US without judicial intervention (Varsanyi 2008). Making noncitizens subject to rejection and deportation, plenary power over immigration treated noncitizens as “aliens” rather than “persons” (Varsanyi 2008). Authorizing a separate immigration law regime, the plenary doctrine “works paradoxically through the law as it at once holds [constitutional] law at bay,” thereby suspending constitutional protections for noncitizens (Coleman 2007, p. 62). Through this series of court decisions, federal courts made non-citizenship/citizenship a discursive, legal, and political axis in a broader “geopolitics of mobility,” in which national elites used admission and exclusion policies to create specific politico-territorial orders (Nagel 2002; Tesfahuney 1998).The plenary doctrine of immigration authorized, therefore, the suspension of noncitizens’ constitutional protections - including the right to liberty - in the interests of national security. From the late 1970s to the 1990s, border state politicians framed immigration and border policy as a law-and-order issue, and immigration became increasingly understood as a problem of migrant illegality (Nevins 2002). Changes in immigration law - and in how the executive branch enforces it - have sparked a rethinking of the relationship between border and immigration enforcement, however. For example, the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) widened immigration authorities’ discretion over the detention and deportation of noncitizens. IIRIRA, in particular, recategorized noncitizens according to a new and ambiguous taxonomy of illegality, mandated detention for more noncitizens, and further limited immigration court oversight of deportation decisions.
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