Wednesday, March 16, 2011

Tirres on Pfander and Wardon, Reclaiming the Immigration Constitution of the Early Republic

Allison Tirres has a review of James E. Pfander and Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 Va. L. Rev. 359 (2010) at the Legal History section of JOTWELL (Journal of Things We Like Lots).  She writes:
Modern immigration law is built upon a specific historical foundation: the efforts of lawmakers to exclude Chinese immigrants from the country in the late nineteenth century.  Remarkably, all of the early cases affirming the constitutionality of Chinese Exclusion are still good law.  Based on this jurisprudence, Congress has “plenary power,” free of judicial oversight, over the substance of laws seeking either to exclude migrants or to deport them....Plenary power has served to insulate immigration law not only from equal protection norms...but also from other constitutional challenges, including those to retroactive lawmaking.  To provide just one example, a legal permanent resident today can be detained and deported for a misdemeanor crime committed decades ago that was not a deportable crime at the time she committed it.

Scholars have critiqued the disconnect between immigration regulation and constitutional norms using a variety of methodologies.  Rarely, however, has legal history been among them.  The reasons for this are varied, but one of the primary ones is the relative silence of the Constitution on matters of immigration.  The Constitution does not explicitly refer to immigration at all, and the Framers did not expressly discuss immigration policy.  This has led to a widely-held assumption that there is not much to learn from the Founding Era to guide Congress and the courts in decisions about modern immigration regulation.  In their article, Reclaiming the Immigration Constitution, James Pfander and Theresa Wardon effectively challenge this assumption.  They do so using the most persuasive tools of legal history: in-depth, nuanced research into a rich and little-discussed trove of primary source material.

Continue reading here.