Immigration Article of the Day: A Qualified Defense of Immigration Exceptionalism  by Anja Bossow

A Qualified Defense of Immigration Exceptionalism  by Anja Bossow

Abstract

It is conventional wisdom that immigration is an area in which the normal rules of constitutional law simply do not apply. Less clear is why this should be the case. Scholars have consistently opposed immigration exceptionalism as a rights-depriving and power-aggrandizing pathology that lacks any clear justifying rationale. This article offers a qualified defense of the phenomenon by examining several reasons for treating immigration law differently for the purpose of constitutional regulation. These include immigration law’s role in constituting the polity, the alienage status of its subjects, and its relationship to ‘political’ questions and challenges, such as the conduct of foreign affairs, national security, and crises. Properly construed, these features of immigration law can justify some dimensions of the permissive regime of constitutional law governing federal immigration authority. They cannot, however, justify several pathologies that have traveled under the label of immigration exceptionalism and that work to exempt the immigration power from constitutional restraint.