Immigration Article of the Day: Crisis Governance of the Border: The Law and Politics of Immigration Emergency by Jonathan Hafetz

Crisis Governance of the Border: The Law and Politics of Immigration Emergency by Jonathan Hafetz

Abstract
In the United States, law and politics around immigration are increasingly framed in terms of emergency, with claims of a perpetual crisis at the border necessitating extraordinary measures. Presidents now routinely invoke express emergency or quasi-emergency powers provided under statute, or, when operating under ordinary legal authority, frame their actions in terms of emergency. States, meanwhile, increasingly sue the federal government to block measures they argue are creating or exacerbating a crisis within their own respective borders, or take immigration enforcement into their own hands. Emergency measures, moreover, often prove a one-way ratchet, effectively making permanent what were initially justified as temporary restrictions. This Article explores the emergence of a new norm of crisis governance at the border. The Article surveys theories of emergency power to provide a larger context for the United States' increasing reliance on a paradigm of emergency to address immigration. It then explains how this paradigm increasingly dominates law, politics, and policy around immigration, focusing on four controversial measures from the Trump and Biden administrations: the 'Muslim Ban'; the construction of the Border Wall; Remain in Mexico; and the suspension of asylum during COVID-19.