By Geoffrey Heeren | Valparaiso University Law School
By many measures, 2012 was an excellent year for immigrant rights—both in and outside the courts. In June, the Obama Administration announced its “Deferred Action for Childhood Arrivals” program to grant a type of quasi-status to the undocumented immigrant youth who have come to be known as DREAMers—as much for their courage and vision as for the never-passed DREAM Act. Throughout the year, ICE prosecutors continued a review of their deportation case loads begun in 2011, with an eye toward administratively closing low priority cases. And at the end of 2012, Immigration and Customs Enforcement (ICE) issued a new policy that narrows the “Secure Communities” program, which has been widely criticized as a dragnet for undocumented immigrants with minor infractions.
The Supreme Court issued four decisions in 2012 that relate to immigration law: Arizona v. United States; Vartelas v. Holder; Holder v. Sawyers (and its companion case, Holder v. Gutierrez); and Kawashima v. Holder. A fifth, Judulang v. Holder, came at the end of 2011. Many consider Arizona an important immigrant rights victory, since the Court struck down the most reaching provisions of Arizona’s draconian SB 1070 law. Judulang and Vartelas received far less publicity, but still represented important victories for immigrants and their advocates. In Judulang the Court held that the rationality mandate of the Administrative Procedure Act (APA) applies in a rigorous way to the policies of the immigration agency; in Vartelas, the Court continued its trend of limiting the retroactive reach of the harsh 1996 immigration reforms. Gutierrez and Kawashima lost their cases at the Court, but the decisions are unlikely to have as much impact on other immigrants’ cases as the favorable Arizona, Judulang, and Vartelas decisions will have.
Finally, President Obama’s reelection has been widely characterized as evidence of the growing electoral power of Latinos in the United States. There is an expectation that legislators will try to court Latino voters with immigration reform in the next Congress, and that this reform may offer some form of “amnesty” to at least some undocumented immigrants in the US.
Given this string of victories, should immigrant rights advocates be content with the state of things? In a forthcoming article, Persons Who Are Not the People: The Changing Rights of Immigrants in the United States, I argue that there is some cause for concern. There can be little doubt that immigrants are winning in the courts (and before the Executive Branch), but the way in which they are winning is different than during prior eras. The Burger Court, for example, issued seven decisions between 1971 and 1984 affirming the equal protection rights of non-citizens in the face of state (and arguably even federal) discrimination. These cases concerned the types of privileges and services that we tend to associate with membership in the polity, such as occupational licensing, welfare, and education. In the most famous case, Plyler v. Doe, 457 U.S. 202 (1982), the Court held that even undocumented immigrants have equal protection rights, striking down Texas’s effort to deny undocumented children a basic education.
Although the ACLU raised an equal protection claim in its lower court challenge to Arizona’s SB 1070 law, the claim didn’t make it into the Federal Government’s case before the Supreme Court. The federal government’s challenge was based on its exclusive right to regulate immigration, not the rights of immigrants in the face of harmful state action. This shouldn’t surprise us, since the mid-1980s was the last time a non-citizen won an equal protection claim of this sort at the Court. In the 1970s and 1980s, equal protection was clearly the rhetoric that resonated with the Court, which didn’t even address the preemption claim raised in the Plyler case. Today, however, immigrant rights advocates understand that the best way to win an immigrant rights case at the Court isn’t to assert an immigrant’s right, but rather, the rights of the federal government.
That works well when state action is at issue, but not so much when the non-citizen seeks to challenge federal power, as in deportation cases. Here there is another strategy that has proven successful. In cases like Judulang v. Holder, non-citizens have successfully argued that the policies and procedures of the federal immigration agency are irrational, in violation of the APA or just general standards of fairness. Even relatively conservative judges, like Judge Richard Posner of the Seventh Circuit, have proven highly sympathetic to the argument that the agency fundamentally doesn’t know what it’s doing. Perhaps this has something to do with the general anti-regulatory stance of judges who have been influenced by Law and Economics or Public Choice theory such as Posner, or perhaps agency competence arguments tap into the general zeitgeist, in which people are quite willing to believe that “the system is broken,” especially the immigration system. In any event, agency competence arguments are still, like preemption, arguments about the scope of federal power, not arguments about immigrant rights.
As immigrants and their advocates win in the courts, they might want to pay some attention to this shift. Courts today are willing to accept federal power to preempt state immigration laws and to deeply probe the rationality of federal agency action, but they seem less likely to concede what was once a given—that immigrants should, in many cases, be treated like members of our civil society. There are many who will fiercely dispute the notion that non-citizens should have membership rights, even as they concede the need for more immigrant workers to harvest US fields and clean American homes and offices. In the coming months, this is the claim that hard-working immigrants and their families must press before Congress—that they merit a pathway to membership and its rights.