Tuesday, May 22nd, 2018

Immigration Structuralism: A Return to Form

"At the heart of the subfederal immigration revolution are two core questions. The first is what to do about our broken immigration system, especially regarding an estimated 11 million individuals unlawfully present. For now, at least, the only common denominator is that something should be done. This unsatisfying consensus invites the revolution’s second core question: which institution of government, relative to others, has the power to do what. Although Congress has the lawmaking power, it has yet to meet the demand for reform. Meanwhile, the federal executive has proven unable or unwilling to effectively enforce the law in effect. Frustrated, and by default, states and localities increasingly have sought to “cooperate” in immigration enforcement through self-help measures. The federal administration, however, has generally rebuked these subfederal initiatives and has sought to enjoin them on preemption grounds. Our unelected judiciary thus has been tasked to