In recent years, schools, colleges, universities, and libraries, along with individual scholars, ... more In recent years, schools, colleges, universities, and libraries, along with individual scholars, teachers, and librarians, have faced a rapidly growing panoply of politically and ideologically motivated efforts in the United States and other countries to restrict teaching, research, and access to knowledge on subjects deemed to be “divisive” or “controversial,” particularly but not exclusively with respect to race, gender, and sexuality. In addition to direct efforts to restrict or mandate curricular content, these efforts have also included initiatives that more indirectly create chilling effects on disfavored subjects and aggressive structural interventions that seek to impose greater external control over these institutions. At the same time, scholars and other observers also have increasingly warned over this same period that in many of these same countries, the weakening of political institutions has placed democracy itself at risk—which, in turn, has created a more hospitable environment for attacks on education and knowledge. In this introduction to the Drexel Law Review's symposium, Knowledge at Risk: Democratic Erosion and the Contemporary Assault on Education and Expertise, I identify and discuss a number of questions arising from these parallel developments. What are the various components of these recent attacks on education and knowledge, and how have they emerged and developed? How should we understand and conceptualize the relationship between this assault, on the one hand, and growing concerns about the erosion of democracy, on the other? To what extent has democratic erosion facilitated or contributed to this assault? In addition to state actors, what roles have private actors and money played in enabling these attacks? Finally, what strategies might effectively protect education and knowledge in the face of this onslaught?
While Florida frequently has been at the forefront of public attention to this recent wave of ideologically driven threats—and similarly loomed large in discussions by many of the symposium participants—the contemporary assault on education and knowledge has not, by any means, been limited to Florida. While proponents of these incursions have achieved some of their most significant and highest profile victories in Florida, those successes have been the product of efforts by an extensive network of groups that has pursued this agenda nationwide. Drexel’s own state of Pennsylvania, for example, has been a prime target for many of these efforts. Moreover, as discussed by the symposium participants, colleges and universities have often been made more vulnerable to these external attacks in part because the internal commitment of their own administrators and trustees to academic freedom, freedom of speech, and educational autonomy has been uneven, as incidents in this institution’s own recent history illustrate. Especially given the multiplicity of different forms that contemporary attacks on education and knowledge have taken, and the extent to which these attacks are intertwined with broader assaults against democratic governance itself, defending the autonomy and integrity of schools, colleges, universities, and libraries in the face of this onslaught demands a set of strategies in response that is no less multifaceted and dynamic. Litigation can be an important response, but as the symposium participants emphasized, a more complete, effective, and durable set of responses will require a broader constellation of strategies.
When President Joe Biden took the oath of office, expectations ran high for major changes in immi... more When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. While Biden’s predecessor had implemented the most far-reaching anti-immigration program in nearly a century, the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives. Even as xenophobia rapidly took hold among many within the Republican Party’s political, media, and legal elites, polls steadily found that substantial majorities of Americans opposed the Trump immigration agenda. With this reservoir of popular support, Biden forcefully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies,” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy.
More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.
Hours after taking office, President Joe Biden began dismantling the immigration restrictionist p... more Hours after taking office, President Joe Biden began dismantling the immigration restrictionist policies of his predecessor. Emphasizing that immigrants “strengthen America’s families, communities, businesses and workforce, and economy” — and that “enforcing the immigration laws is complex and requires setting priorities to best serve the national interest” — the new president and other officials rescinded a raft of Trump-era directives, instituted new interim enforcement priorities reflecting the Biden administration’s own values and principles, and directed a comprehensive, 100-day review of all enforcement policies and practices. To facilitate implementation of those initiatives, officials also ordered a partial, 100-day moratorium on deportation of certain noncitizens with final orders of removal, which nevertheless permitted other enforcement activities to go forward and even allowed removal of individuals covered by the moratorium on an individualized basis.
Republican opponents immediately filed lawsuits challenging these measures, and within days the partial moratorium was blocked by U.S. District Judge Drew Tipton, who had been confirmed by the Republican-controlled Senate on a narrow, party-line vote only months before Biden’s election. In this Article, I examine Tipton’s decrees, which suffer from significant substantive flaws, and the broader significance of this effort to undermine the Biden administration’s immigration agenda. Remarkably, the seeds of this effort were planted in the days and weeks before Biden’s inauguration by the Trump presidency itself. While it is not uncommon for outgoing presidential administrations to attempt to tie the hands of their successors in various ways, the efforts by the outgoing Trump presidency and its allies to stymie the new administration’s immigration agenda have been unusually irregular and aggressive.
The lasting significance of Tipton’s decrees may appear limited, especially with the Biden administration’s first hundred days having come and gone. At another level, however — and especially in the wake of a violent, anti-democratic insurrection evidently fueled in significant part by hostility towards immigrants — Tipton’s decrees constitute a more ominous sign of what may lie ahead. As its first hundred days in office draw to a close, the Biden administration faces a growing number of lawsuits by Republican political opponents that seek to entrench the Trump immigration agenda and effectively deny the Biden administration’s ability to implement its own policies. A federal judiciary significantly transformed during the Trump presidency has become a central arena for this emergent politics of restrictionist entrenchment. By immediately giving even limited effect to the claims against the new administration’s initiatives — and suggesting that he might eventually endorse even broader claims — Tipton’s decrees offer a window into the methods that a judiciary packed with Trump appointees may use as eager, active collaborators in those partisan efforts to undermine the new administration’s policy agenda. The potential implications extend far beyond the fate of the 100-day removal moratorium itself.
Since 2017, President Trump and his allies have hurtled the politics and policy of immigration in... more Since 2017, President Trump and his allies have hurtled the politics and policy of immigration in xenophobic directions to an extent without modern precedent, and with devastating effect. The Trump presidency has instituted hundreds of restrictionist measures, including high profile initiatives that have prompted significant public controversy and many less prominent, often technical measures that have erected a sprawling, “invisible wall” and placed millions at heightened risk of deportation. With the onset of the novel coronavirus pandemic, the administration has intensified this crackdown further, using the outbreak as a pretext to institute even more sweeping restrictions that it previously had tried but failed to achieve.
Because these measures have been implemented almost entirely through executive action, rather than new legislation, the incoming Biden administration will be well-positioned to roll back many of them—that is, provided that it commits the resources, energy, and political capital required. But even as it seeks to dismantle the Trump immigration legacy, the new administration should also lay the foundation for a more fundamental paradigm shift away from the entrenched regime of comprehensive immigration severity that enabled the Trump presidency’s xenophobic crackdown in the first place. In both its executive actions and legislative agenda on immigration, the new administration has an opportunity to embrace the more ambitious objective, as it has in other policy domains, to "build back better" in the aftermath of Trump.
The Trump administration’s aggressive, wide-ranging effort to crack down on immigration—which, un... more The Trump administration’s aggressive, wide-ranging effort to crack down on immigration—which, unlike some of its other initiatives, most certainly cannot be fairly characterized as seeking to “deconstruct” the administrative state—involves a somewhat complicated relationship with what came before. On the one hand, the new administration’s sweeping, high-profile immigration enforcement initiatives—along with its inflammatory anti-immigrant rhetoric—mark the ascendance of immigration restrictionism to the highest levels of the executive branch to an extent that is entirely without modern precedent. On the other hand, the actual strategies that the Trump administration has utilized to carry out this crackdown, to date, have been facilitated by existing legal authority and administrative institutions inherited from its predecessors, both Republican and Democratic. Perhaps most notably, the Trump administration’s immigration strategies have deep roots in the year 1996, when a Democratic president signed into law a series of statutes passed by a Republican-controlled Congress which instituted far-reaching changes to the immigration laws that the Trump administration has relied upon heavily when developing its own immigration control strategies.
A particularly prominent dimension of the 1996 laws involved the convergence of immigration control with the norms, institutions, and practices of criminal law enforcement, a convergence that has influentially been termed “crimmigration.” However, the severity embodied in the 1996 immigration legislation swept considerably further than this convergence between immigration control and criminal law. Among other things, for example, the 1996 laws established significant barriers for refugees seeking protection in the United States, limited immigrants’ eligibility for public benefits, restricted the availability of discretionary relief from removal, and established new grounds of removability for support for organizations allegedly involved in terrorism-related activities. The legislation also sharply curtailed procedural safeguards for individuals in removal proceedings and laid the groundwork for the involvement of state and local officials in immigration policing on a wide scale. Taken as a whole, the 1996 statutes approximate the opposite of the comprehensive immigration reform legislation that advocates have sought in recent years, amounting instead to a far-reaching experiment in what may be described as comprehensive immigration severity.
Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.
In November 2014, the Obama administration announced the Deferred Action for Parents of Americans... more In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition for its recipients, it does not provide legal immigration status. Accordingly, the two initiatives are not an equivalent substitute for legislative reform proposals that would create a pathway to durable legal status for a much larger number of individuals.
Nevertheless, critics have accused the Obama administration of imposing by decree precisely that which Congress has declined to authorize by statute: namely, legalization of noncitizens who lack lawful immigration status. In this Article, I critically examine those assertions and develop a rationale for the deferred action initiatives, anchored in rule of law values, that has received no meaningful attention in recent debates about DACA and DAPA. As the decision by U.S. District Judge Andrew S. Hanen enjoining those initiatives illustrates, legal discourse has mirrored and reinforced the same incorrect claims about deferred action that circulate in anti-immigration political discourse. Like the Obama administration’s political critics, Judge Hanen repeatedly mischaracterizes the initiatives as providing “legal status” and, on that basis, flays the Obama administration for “total[ly] abdicat[ing]” immigration enforcement. These conclusions ultimately amount to what I describe elsewhere as “judicial truthiness,” highlighting an erosion of the conventional lines between litigation, adjudication, and public discourse in politically salient cases more generally.
The flawed discourse surrounding DACA and DAPA underscores the need for a more careful assessment of the complex relationships between enforcement priorities, prosecutorial discretion, and the rule of law in an era of mass deportation. The blunt and distorted nature of that discourse, however, in turn has distorted the substantive analysis of those relationships. As the scale of the expansive and fragmented immigration enforcement regime has grown to such enormous levels — making the interrelated challenges of ensuring consistent execution of the law and fidelity to enforcement priorities more formidable — the need for effective mechanisms to supervise the discretion exercised by rank-and-file officials has only grown more important. But even as it purports to respect the government’s enforcement priorities, the logic of Judge Hanen’s ruling would largely disable policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore not only inhibits the agency’s ability to establish enforcement priorities and manage its scarce resources, but also fails to acknowledge the importance of rule of law values such as consistency, transparency, accountability, and nonarbitrariness in the execution of the immigration laws.
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in ... more In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information for immigration control and other purposes. This information is aggregated and stored by government agencies for long retention periods in networks of interoperable databases and shared among a variety of public and private actors, both inside and outside the United States, with little transparency, oversight, or accountability.
In this Article, I theorize and assess this underappreciated transformation of the techniques and technologies of immigration enforcement — their swift proliferation, enormous scale, likely entrenchment, and broader meanings. Situating this reconfiguration within a larger set of developments concerning surveillance and technology, I explain how these technologies have transformed a regime of immigration control, operating primarily upon noncitizens at the territorial border, into part of a more expansive regime of migration and mobility surveillance, operating without geographic bounds upon citizens and noncitizens alike. The technologies that enable this immigration surveillance regime can, and do, bring great benefits. However, their unimpeded expansion erodes the practical mechanisms and legal principles that have traditionally constrained aggregations of power and protected individual autonomy, as similarly illustrated in current debates over surveillance in other settings. In the immigration context, those constraints have always been less robust in the first place. Accordingly, I urge more constrained implementation of these technologies, to preserve zones where immigration surveillance activities do not take place and to ensure greater due process and accountability when they do.
A complete understanding of immigration enforcement today must account for how the evolution of enforcement institutions, practices, and meanings has not simply increased the number of noncitizens being deported, but has effected a more basic transformation in immigration governance. As the institutions of immigration surveillance rapidly become integrated into the broader national surveillance state, scholars, policymakers, advocates, and community members need to grapple more directly with the implications of that reconfiguration.
On October 31, 2013—just days before New York City’s mayoral election—three federal appellate jud... more On October 31, 2013—just days before New York City’s mayoral election—three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that—by their own acknowledgment—they “read [in] the newspapers.”
In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign—based entirely on what they had read in the newspapers—Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.
Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.
When the Supreme Court adjudicates United States v. Texas, the lawsuit challenging the Obama admi... more When the Supreme Court adjudicates United States v. Texas, the lawsuit challenging the Obama administration's executive actions on immigration, one focal point may be the question of whether those initiatives — Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals — impermissibly confer "lawful presence" upon their recipients. In both of his opinions for the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith went out of his way to characterize DAPA and DACA as affirmatively and conferring their recipients with "lawful presence." In their briefing to the Supreme Court the plaintiffs have now followed his lead, arguing that DAPA and DACA impermissibly "transform presence deemed unlawful by Congress into lawful presence."
In this essay, I explain why these claims about "lawful presence" are incorrect and ultimately a red herring. Describing DAPA and DACA as entailing a grant of "lawful presence" mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, as a legal matter, “lawful presence” does not even exist as a thing in the sense that Judge Smith and the plaintiffs describe it. In order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a conception of "lawful presence" as constituting an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration "status." That conception, however, has no actual legal basis. Ultimately, since "unlawful presence" does not carry the meaning that Judge Smith and the plaintiffs ascribe to it, there is only the illusion of a substantive problem here.
In recent years, schools, colleges, universities, and libraries, along with individual scholars, ... more In recent years, schools, colleges, universities, and libraries, along with individual scholars, teachers, and librarians, have faced a rapidly growing panoply of politically and ideologically motivated efforts in the United States and other countries to restrict teaching, research, and access to knowledge on subjects deemed to be “divisive” or “controversial,” particularly but not exclusively with respect to race, gender, and sexuality. In addition to direct efforts to restrict or mandate curricular content, these efforts have also included initiatives that more indirectly create chilling effects on disfavored subjects and aggressive structural interventions that seek to impose greater external control over these institutions. At the same time, scholars and other observers also have increasingly warned over this same period that in many of these same countries, the weakening of political institutions has placed democracy itself at risk—which, in turn, has created a more hospitable environment for attacks on education and knowledge. In this introduction to the Drexel Law Review's symposium, Knowledge at Risk: Democratic Erosion and the Contemporary Assault on Education and Expertise, I identify and discuss a number of questions arising from these parallel developments. What are the various components of these recent attacks on education and knowledge, and how have they emerged and developed? How should we understand and conceptualize the relationship between this assault, on the one hand, and growing concerns about the erosion of democracy, on the other? To what extent has democratic erosion facilitated or contributed to this assault? In addition to state actors, what roles have private actors and money played in enabling these attacks? Finally, what strategies might effectively protect education and knowledge in the face of this onslaught?
While Florida frequently has been at the forefront of public attention to this recent wave of ideologically driven threats—and similarly loomed large in discussions by many of the symposium participants—the contemporary assault on education and knowledge has not, by any means, been limited to Florida. While proponents of these incursions have achieved some of their most significant and highest profile victories in Florida, those successes have been the product of efforts by an extensive network of groups that has pursued this agenda nationwide. Drexel’s own state of Pennsylvania, for example, has been a prime target for many of these efforts. Moreover, as discussed by the symposium participants, colleges and universities have often been made more vulnerable to these external attacks in part because the internal commitment of their own administrators and trustees to academic freedom, freedom of speech, and educational autonomy has been uneven, as incidents in this institution’s own recent history illustrate. Especially given the multiplicity of different forms that contemporary attacks on education and knowledge have taken, and the extent to which these attacks are intertwined with broader assaults against democratic governance itself, defending the autonomy and integrity of schools, colleges, universities, and libraries in the face of this onslaught demands a set of strategies in response that is no less multifaceted and dynamic. Litigation can be an important response, but as the symposium participants emphasized, a more complete, effective, and durable set of responses will require a broader constellation of strategies.
When President Joe Biden took the oath of office, expectations ran high for major changes in immi... more When President Joe Biden took the oath of office, expectations ran high for major changes in immigration policy. While Biden’s predecessor had implemented the most far-reaching anti-immigration program in nearly a century, the Trump presidency never garnered strong public or congressional support for its immigration restrictionist initiatives. Even as xenophobia rapidly took hold among many within the Republican Party’s political, media, and legal elites, polls steadily found that substantial majorities of Americans opposed the Trump immigration agenda. With this reservoir of popular support, Biden forcefully pledged as a candidate not only to take “urgent action to end the Trump Administration’s draconian policies,” but also to restart “the work of building a fair and humane immigration system.” And within hours of assuming office, his administration began dismantling Trump’s legacy.
More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.
Hours after taking office, President Joe Biden began dismantling the immigration restrictionist p... more Hours after taking office, President Joe Biden began dismantling the immigration restrictionist policies of his predecessor. Emphasizing that immigrants “strengthen America’s families, communities, businesses and workforce, and economy” — and that “enforcing the immigration laws is complex and requires setting priorities to best serve the national interest” — the new president and other officials rescinded a raft of Trump-era directives, instituted new interim enforcement priorities reflecting the Biden administration’s own values and principles, and directed a comprehensive, 100-day review of all enforcement policies and practices. To facilitate implementation of those initiatives, officials also ordered a partial, 100-day moratorium on deportation of certain noncitizens with final orders of removal, which nevertheless permitted other enforcement activities to go forward and even allowed removal of individuals covered by the moratorium on an individualized basis.
Republican opponents immediately filed lawsuits challenging these measures, and within days the partial moratorium was blocked by U.S. District Judge Drew Tipton, who had been confirmed by the Republican-controlled Senate on a narrow, party-line vote only months before Biden’s election. In this Article, I examine Tipton’s decrees, which suffer from significant substantive flaws, and the broader significance of this effort to undermine the Biden administration’s immigration agenda. Remarkably, the seeds of this effort were planted in the days and weeks before Biden’s inauguration by the Trump presidency itself. While it is not uncommon for outgoing presidential administrations to attempt to tie the hands of their successors in various ways, the efforts by the outgoing Trump presidency and its allies to stymie the new administration’s immigration agenda have been unusually irregular and aggressive.
The lasting significance of Tipton’s decrees may appear limited, especially with the Biden administration’s first hundred days having come and gone. At another level, however — and especially in the wake of a violent, anti-democratic insurrection evidently fueled in significant part by hostility towards immigrants — Tipton’s decrees constitute a more ominous sign of what may lie ahead. As its first hundred days in office draw to a close, the Biden administration faces a growing number of lawsuits by Republican political opponents that seek to entrench the Trump immigration agenda and effectively deny the Biden administration’s ability to implement its own policies. A federal judiciary significantly transformed during the Trump presidency has become a central arena for this emergent politics of restrictionist entrenchment. By immediately giving even limited effect to the claims against the new administration’s initiatives — and suggesting that he might eventually endorse even broader claims — Tipton’s decrees offer a window into the methods that a judiciary packed with Trump appointees may use as eager, active collaborators in those partisan efforts to undermine the new administration’s policy agenda. The potential implications extend far beyond the fate of the 100-day removal moratorium itself.
Since 2017, President Trump and his allies have hurtled the politics and policy of immigration in... more Since 2017, President Trump and his allies have hurtled the politics and policy of immigration in xenophobic directions to an extent without modern precedent, and with devastating effect. The Trump presidency has instituted hundreds of restrictionist measures, including high profile initiatives that have prompted significant public controversy and many less prominent, often technical measures that have erected a sprawling, “invisible wall” and placed millions at heightened risk of deportation. With the onset of the novel coronavirus pandemic, the administration has intensified this crackdown further, using the outbreak as a pretext to institute even more sweeping restrictions that it previously had tried but failed to achieve.
Because these measures have been implemented almost entirely through executive action, rather than new legislation, the incoming Biden administration will be well-positioned to roll back many of them—that is, provided that it commits the resources, energy, and political capital required. But even as it seeks to dismantle the Trump immigration legacy, the new administration should also lay the foundation for a more fundamental paradigm shift away from the entrenched regime of comprehensive immigration severity that enabled the Trump presidency’s xenophobic crackdown in the first place. In both its executive actions and legislative agenda on immigration, the new administration has an opportunity to embrace the more ambitious objective, as it has in other policy domains, to "build back better" in the aftermath of Trump.
The Trump administration’s aggressive, wide-ranging effort to crack down on immigration—which, un... more The Trump administration’s aggressive, wide-ranging effort to crack down on immigration—which, unlike some of its other initiatives, most certainly cannot be fairly characterized as seeking to “deconstruct” the administrative state—involves a somewhat complicated relationship with what came before. On the one hand, the new administration’s sweeping, high-profile immigration enforcement initiatives—along with its inflammatory anti-immigrant rhetoric—mark the ascendance of immigration restrictionism to the highest levels of the executive branch to an extent that is entirely without modern precedent. On the other hand, the actual strategies that the Trump administration has utilized to carry out this crackdown, to date, have been facilitated by existing legal authority and administrative institutions inherited from its predecessors, both Republican and Democratic. Perhaps most notably, the Trump administration’s immigration strategies have deep roots in the year 1996, when a Democratic president signed into law a series of statutes passed by a Republican-controlled Congress which instituted far-reaching changes to the immigration laws that the Trump administration has relied upon heavily when developing its own immigration control strategies.
A particularly prominent dimension of the 1996 laws involved the convergence of immigration control with the norms, institutions, and practices of criminal law enforcement, a convergence that has influentially been termed “crimmigration.” However, the severity embodied in the 1996 immigration legislation swept considerably further than this convergence between immigration control and criminal law. Among other things, for example, the 1996 laws established significant barriers for refugees seeking protection in the United States, limited immigrants’ eligibility for public benefits, restricted the availability of discretionary relief from removal, and established new grounds of removability for support for organizations allegedly involved in terrorism-related activities. The legislation also sharply curtailed procedural safeguards for individuals in removal proceedings and laid the groundwork for the involvement of state and local officials in immigration policing on a wide scale. Taken as a whole, the 1996 statutes approximate the opposite of the comprehensive immigration reform legislation that advocates have sought in recent years, amounting instead to a far-reaching experiment in what may be described as comprehensive immigration severity.
Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.
In November 2014, the Obama administration announced the Deferred Action for Parents of Americans... more In November 2014, the Obama administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) initiative, which built upon a program instituted two years earlier, the Deferred Action for Childhood Arrivals (DACA) initiative. As mechanisms to channel the government’s scarce resources toward its enforcement priorities more efficiently and effectively, both DACA and DAPA permit certain individuals falling outside those priorities to seek “deferred action,” which provides its recipients with time-limited, nonbinding, and revocable notification that officials have exercised prosecutorial discretion to deprioritize their removal. While deferred action thereby facilitates a highly tenuous form of quasi-legal recognition for its recipients, it does not provide legal immigration status. Accordingly, the two initiatives are not an equivalent substitute for legislative reform proposals that would create a pathway to durable legal status for a much larger number of individuals.
Nevertheless, critics have accused the Obama administration of imposing by decree precisely that which Congress has declined to authorize by statute: namely, legalization of noncitizens who lack lawful immigration status. In this Article, I critically examine those assertions and develop a rationale for the deferred action initiatives, anchored in rule of law values, that has received no meaningful attention in recent debates about DACA and DAPA. As the decision by U.S. District Judge Andrew S. Hanen enjoining those initiatives illustrates, legal discourse has mirrored and reinforced the same incorrect claims about deferred action that circulate in anti-immigration political discourse. Like the Obama administration’s political critics, Judge Hanen repeatedly mischaracterizes the initiatives as providing “legal status” and, on that basis, flays the Obama administration for “total[ly] abdicat[ing]” immigration enforcement. These conclusions ultimately amount to what I describe elsewhere as “judicial truthiness,” highlighting an erosion of the conventional lines between litigation, adjudication, and public discourse in politically salient cases more generally.
The flawed discourse surrounding DACA and DAPA underscores the need for a more careful assessment of the complex relationships between enforcement priorities, prosecutorial discretion, and the rule of law in an era of mass deportation. The blunt and distorted nature of that discourse, however, in turn has distorted the substantive analysis of those relationships. As the scale of the expansive and fragmented immigration enforcement regime has grown to such enormous levels — making the interrelated challenges of ensuring consistent execution of the law and fidelity to enforcement priorities more formidable — the need for effective mechanisms to supervise the discretion exercised by rank-and-file officials has only grown more important. But even as it purports to respect the government’s enforcement priorities, the logic of Judge Hanen’s ruling would largely disable policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore not only inhibits the agency’s ability to establish enforcement priorities and manage its scarce resources, but also fails to acknowledge the importance of rule of law values such as consistency, transparency, accountability, and nonarbitrariness in the execution of the immigration laws.
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in ... more In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information for immigration control and other purposes. This information is aggregated and stored by government agencies for long retention periods in networks of interoperable databases and shared among a variety of public and private actors, both inside and outside the United States, with little transparency, oversight, or accountability.
In this Article, I theorize and assess this underappreciated transformation of the techniques and technologies of immigration enforcement — their swift proliferation, enormous scale, likely entrenchment, and broader meanings. Situating this reconfiguration within a larger set of developments concerning surveillance and technology, I explain how these technologies have transformed a regime of immigration control, operating primarily upon noncitizens at the territorial border, into part of a more expansive regime of migration and mobility surveillance, operating without geographic bounds upon citizens and noncitizens alike. The technologies that enable this immigration surveillance regime can, and do, bring great benefits. However, their unimpeded expansion erodes the practical mechanisms and legal principles that have traditionally constrained aggregations of power and protected individual autonomy, as similarly illustrated in current debates over surveillance in other settings. In the immigration context, those constraints have always been less robust in the first place. Accordingly, I urge more constrained implementation of these technologies, to preserve zones where immigration surveillance activities do not take place and to ensure greater due process and accountability when they do.
A complete understanding of immigration enforcement today must account for how the evolution of enforcement institutions, practices, and meanings has not simply increased the number of noncitizens being deported, but has effected a more basic transformation in immigration governance. As the institutions of immigration surveillance rapidly become integrated into the broader national surveillance state, scholars, policymakers, advocates, and community members need to grapple more directly with the implications of that reconfiguration.
On October 31, 2013—just days before New York City’s mayoral election—three federal appellate jud... more On October 31, 2013—just days before New York City’s mayoral election—three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that—by their own acknowledgment—they “read [in] the newspapers.”
In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign—based entirely on what they had read in the newspapers—Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.
Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.
When the Supreme Court adjudicates United States v. Texas, the lawsuit challenging the Obama admi... more When the Supreme Court adjudicates United States v. Texas, the lawsuit challenging the Obama administration's executive actions on immigration, one focal point may be the question of whether those initiatives — Deferred Action for Parents of Americans and Lawful Permanent Residents and its predecessor, Deferred Action for Childhood Arrivals — impermissibly confer "lawful presence" upon their recipients. In both of his opinions for the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith went out of his way to characterize DAPA and DACA as affirmatively and conferring their recipients with "lawful presence." In their briefing to the Supreme Court the plaintiffs have now followed his lead, arguing that DAPA and DACA impermissibly "transform presence deemed unlawful by Congress into lawful presence."
In this essay, I explain why these claims about "lawful presence" are incorrect and ultimately a red herring. Describing DAPA and DACA as entailing a grant of "lawful presence" mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, as a legal matter, “lawful presence” does not even exist as a thing in the sense that Judge Smith and the plaintiffs describe it. In order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a conception of "lawful presence" as constituting an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration "status." That conception, however, has no actual legal basis. Ultimately, since "unlawful presence" does not carry the meaning that Judge Smith and the plaintiffs ascribe to it, there is only the illusion of a substantive problem here.
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While Florida frequently has been at the forefront of public attention to this recent wave of ideologically driven threats—and similarly loomed large in discussions by many of the symposium participants—the contemporary assault on education and knowledge has not, by any means, been limited to Florida. While proponents of these incursions have achieved some of their most significant and highest profile victories in Florida, those successes have been the product of efforts by an extensive network of groups that has pursued this agenda nationwide. Drexel’s own state of Pennsylvania, for example, has been a prime target for many of these efforts. Moreover, as discussed by the symposium participants, colleges and universities have often been made more vulnerable to these external attacks in part because the internal commitment of their own administrators and trustees to academic freedom, freedom of speech, and educational autonomy has been uneven, as incidents in this institution’s own recent history illustrate. Especially given the multiplicity of different forms that contemporary attacks on education and knowledge have taken, and the extent to which these attacks are intertwined with broader assaults against democratic governance itself, defending the autonomy and integrity of schools, colleges, universities, and libraries in the face of this onslaught demands a set of strategies in response that is no less multifaceted and dynamic. Litigation can be an important response, but as the symposium participants emphasized, a more complete, effective, and durable set of responses will require a broader constellation of strategies.
More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.
Republican opponents immediately filed lawsuits challenging these measures, and within days the partial moratorium was blocked by U.S. District Judge Drew Tipton, who had been confirmed by the Republican-controlled Senate on a narrow, party-line vote only months before Biden’s election. In this Article, I examine Tipton’s decrees, which suffer from significant substantive flaws, and the broader significance of this effort to undermine the Biden administration’s immigration agenda. Remarkably, the seeds of this effort were planted in the days and weeks before Biden’s inauguration by the Trump presidency itself. While it is not uncommon for outgoing presidential administrations to attempt to tie the hands of their successors in various ways, the efforts by the outgoing Trump presidency and its allies to stymie the new administration’s immigration agenda have been unusually irregular and aggressive.
The lasting significance of Tipton’s decrees may appear limited, especially with the Biden administration’s first hundred days having come and gone. At another level, however — and especially in the wake of a violent, anti-democratic insurrection evidently fueled in significant part by hostility towards immigrants — Tipton’s decrees constitute a more ominous sign of what may lie ahead. As its first hundred days in office draw to a close, the Biden administration faces a growing number of lawsuits by Republican political opponents that seek to entrench the Trump immigration agenda and effectively deny the Biden administration’s ability to implement its own policies. A federal judiciary significantly transformed during the Trump presidency has become a central arena for this emergent politics of restrictionist entrenchment. By immediately giving even limited effect to the claims against the new administration’s initiatives — and suggesting that he might eventually endorse even broader claims — Tipton’s decrees offer a window into the methods that a judiciary packed with Trump appointees may use as eager, active collaborators in those partisan efforts to undermine the new administration’s policy agenda. The potential implications extend far beyond the fate of the 100-day removal moratorium itself.
Because these measures have been implemented almost entirely through executive action, rather than new legislation, the incoming Biden administration will be well-positioned to roll back many of them—that is, provided that it commits the resources, energy, and political capital required. But even as it seeks to dismantle the Trump immigration legacy, the new administration should also lay the foundation for a more fundamental paradigm shift away from the entrenched regime of comprehensive immigration severity that enabled the Trump presidency’s xenophobic crackdown in the first place. In both its executive actions and legislative agenda on immigration, the new administration has an opportunity to embrace the more ambitious objective, as it has in other policy domains, to "build back better" in the aftermath of Trump.
A particularly prominent dimension of the 1996 laws involved the convergence of immigration control with the norms, institutions, and practices of criminal law enforcement, a convergence that has influentially been termed “crimmigration.” However, the severity embodied in the 1996 immigration legislation swept considerably further than this convergence between immigration control and criminal law. Among other things, for example, the 1996 laws established significant barriers for refugees seeking protection in the United States, limited immigrants’ eligibility for public benefits, restricted the availability of discretionary relief from removal, and established new grounds of removability for support for organizations allegedly involved in terrorism-related activities. The legislation also sharply curtailed procedural safeguards for individuals in removal proceedings and laid the groundwork for the involvement of state and local officials in immigration policing on a wide scale. Taken as a whole, the 1996 statutes approximate the opposite of the comprehensive immigration reform legislation that advocates have sought in recent years, amounting instead to a far-reaching experiment in what may be described as comprehensive immigration severity.
Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.
Nevertheless, critics have accused the Obama administration of imposing by decree precisely that which Congress has declined to authorize by statute: namely, legalization of noncitizens who lack lawful immigration status. In this Article, I critically examine those assertions and develop a rationale for the deferred action initiatives, anchored in rule of law values, that has received no meaningful attention in recent debates about DACA and DAPA. As the decision by U.S. District Judge Andrew S. Hanen enjoining those initiatives illustrates, legal discourse has mirrored and reinforced the same incorrect claims about deferred action that circulate in anti-immigration political discourse. Like the Obama administration’s political critics, Judge Hanen repeatedly mischaracterizes the initiatives as providing “legal status” and, on that basis, flays the Obama administration for “total[ly] abdicat[ing]” immigration enforcement. These conclusions ultimately amount to what I describe elsewhere as “judicial truthiness,” highlighting an erosion of the conventional lines between litigation, adjudication, and public discourse in politically salient cases more generally.
The flawed discourse surrounding DACA and DAPA underscores the need for a more careful assessment of the complex relationships between enforcement priorities, prosecutorial discretion, and the rule of law in an era of mass deportation. The blunt and distorted nature of that discourse, however, in turn has distorted the substantive analysis of those relationships. As the scale of the expansive and fragmented immigration enforcement regime has grown to such enormous levels — making the interrelated challenges of ensuring consistent execution of the law and fidelity to enforcement priorities more formidable — the need for effective mechanisms to supervise the discretion exercised by rank-and-file officials has only grown more important. But even as it purports to respect the government’s enforcement priorities, the logic of Judge Hanen’s ruling would largely disable policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore not only inhibits the agency’s ability to establish enforcement priorities and manage its scarce resources, but also fails to acknowledge the importance of rule of law values such as consistency, transparency, accountability, and nonarbitrariness in the execution of the immigration laws.
In this Article, I theorize and assess this underappreciated transformation of the techniques and technologies of immigration enforcement — their swift proliferation, enormous scale, likely entrenchment, and broader meanings. Situating this reconfiguration within a larger set of developments concerning surveillance and technology, I explain how these technologies have transformed a regime of immigration control, operating primarily upon noncitizens at the territorial border, into part of a more expansive regime of migration and mobility surveillance, operating without geographic bounds upon citizens and noncitizens alike. The technologies that enable this immigration surveillance regime can, and do, bring great benefits. However, their unimpeded expansion erodes the practical mechanisms and legal principles that have traditionally constrained aggregations of power and protected individual autonomy, as similarly illustrated in current debates over surveillance in other settings. In the immigration context, those constraints have always been less robust in the first place. Accordingly, I urge more constrained implementation of these technologies, to preserve zones where immigration surveillance activities do not take place and to ensure greater due process and accountability when they do.
A complete understanding of immigration enforcement today must account for how the evolution of enforcement institutions, practices, and meanings has not simply increased the number of noncitizens being deported, but has effected a more basic transformation in immigration governance. As the institutions of immigration surveillance rapidly become integrated into the broader national surveillance state, scholars, policymakers, advocates, and community members need to grapple more directly with the implications of that reconfiguration.
In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign—based entirely on what they had read in the newspapers—Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.
Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.
In this essay, I explain why these claims about "lawful presence" are incorrect and ultimately a red herring. Describing DAPA and DACA as entailing a grant of "lawful presence" mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, as a legal matter, “lawful presence” does not even exist as a thing in the sense that Judge Smith and the plaintiffs describe it. In order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a conception of "lawful presence" as constituting an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration "status." That conception, however, has no actual legal basis. Ultimately, since "unlawful presence" does not carry the meaning that Judge Smith and the plaintiffs ascribe to it, there is only the illusion of a substantive problem here.
While Florida frequently has been at the forefront of public attention to this recent wave of ideologically driven threats—and similarly loomed large in discussions by many of the symposium participants—the contemporary assault on education and knowledge has not, by any means, been limited to Florida. While proponents of these incursions have achieved some of their most significant and highest profile victories in Florida, those successes have been the product of efforts by an extensive network of groups that has pursued this agenda nationwide. Drexel’s own state of Pennsylvania, for example, has been a prime target for many of these efforts. Moreover, as discussed by the symposium participants, colleges and universities have often been made more vulnerable to these external attacks in part because the internal commitment of their own administrators and trustees to academic freedom, freedom of speech, and educational autonomy has been uneven, as incidents in this institution’s own recent history illustrate. Especially given the multiplicity of different forms that contemporary attacks on education and knowledge have taken, and the extent to which these attacks are intertwined with broader assaults against democratic governance itself, defending the autonomy and integrity of schools, colleges, universities, and libraries in the face of this onslaught demands a set of strategies in response that is no less multifaceted and dynamic. Litigation can be an important response, but as the symposium participants emphasized, a more complete, effective, and durable set of responses will require a broader constellation of strategies.
More than one-and-a-half years later, the Biden administration’s progress in rolling back Trump’s anti-immigration legacy has been decidedly uneven. While some of the responsibility lies squarely with the White House itself, no less disquieting have been the ways in which right-wing politicians have enlisted a phalanx of reliably partisan Trump-appointed judges to actively subvert Biden’s immigration agenda. Together with other conservative judges, these Trump appointees have demonstrated an eagerness to perpetuate the anti-immigration policies of the candidate who voters decisively rejected in 2020, often deploying irregular methods and suspect legal reasoning to do so. The manner in which these judicial appointees have kneecapped the Biden immigration agenda offers a revealing window into how a federal judiciary increasingly captured by conservative extremists may continue to operate as an active, enthusiastic collaborator in efforts to entrench illiberal, antimajoritarian power and right-wing policies, across a range of substantive domains, for years to come.
Republican opponents immediately filed lawsuits challenging these measures, and within days the partial moratorium was blocked by U.S. District Judge Drew Tipton, who had been confirmed by the Republican-controlled Senate on a narrow, party-line vote only months before Biden’s election. In this Article, I examine Tipton’s decrees, which suffer from significant substantive flaws, and the broader significance of this effort to undermine the Biden administration’s immigration agenda. Remarkably, the seeds of this effort were planted in the days and weeks before Biden’s inauguration by the Trump presidency itself. While it is not uncommon for outgoing presidential administrations to attempt to tie the hands of their successors in various ways, the efforts by the outgoing Trump presidency and its allies to stymie the new administration’s immigration agenda have been unusually irregular and aggressive.
The lasting significance of Tipton’s decrees may appear limited, especially with the Biden administration’s first hundred days having come and gone. At another level, however — and especially in the wake of a violent, anti-democratic insurrection evidently fueled in significant part by hostility towards immigrants — Tipton’s decrees constitute a more ominous sign of what may lie ahead. As its first hundred days in office draw to a close, the Biden administration faces a growing number of lawsuits by Republican political opponents that seek to entrench the Trump immigration agenda and effectively deny the Biden administration’s ability to implement its own policies. A federal judiciary significantly transformed during the Trump presidency has become a central arena for this emergent politics of restrictionist entrenchment. By immediately giving even limited effect to the claims against the new administration’s initiatives — and suggesting that he might eventually endorse even broader claims — Tipton’s decrees offer a window into the methods that a judiciary packed with Trump appointees may use as eager, active collaborators in those partisan efforts to undermine the new administration’s policy agenda. The potential implications extend far beyond the fate of the 100-day removal moratorium itself.
Because these measures have been implemented almost entirely through executive action, rather than new legislation, the incoming Biden administration will be well-positioned to roll back many of them—that is, provided that it commits the resources, energy, and political capital required. But even as it seeks to dismantle the Trump immigration legacy, the new administration should also lay the foundation for a more fundamental paradigm shift away from the entrenched regime of comprehensive immigration severity that enabled the Trump presidency’s xenophobic crackdown in the first place. In both its executive actions and legislative agenda on immigration, the new administration has an opportunity to embrace the more ambitious objective, as it has in other policy domains, to "build back better" in the aftermath of Trump.
A particularly prominent dimension of the 1996 laws involved the convergence of immigration control with the norms, institutions, and practices of criminal law enforcement, a convergence that has influentially been termed “crimmigration.” However, the severity embodied in the 1996 immigration legislation swept considerably further than this convergence between immigration control and criminal law. Among other things, for example, the 1996 laws established significant barriers for refugees seeking protection in the United States, limited immigrants’ eligibility for public benefits, restricted the availability of discretionary relief from removal, and established new grounds of removability for support for organizations allegedly involved in terrorism-related activities. The legislation also sharply curtailed procedural safeguards for individuals in removal proceedings and laid the groundwork for the involvement of state and local officials in immigration policing on a wide scale. Taken as a whole, the 1996 statutes approximate the opposite of the comprehensive immigration reform legislation that advocates have sought in recent years, amounting instead to a far-reaching experiment in what may be described as comprehensive immigration severity.
Twenty years after the enactment of the 1996 laws, with immigration once again the subject of intense public controversy, the contributions to this symposium examine the origins and operation of the 1996 laws and their broader legacy and significance today. Convening only two weeks before the 2016 presidential election, the symposium participants could not specifically anticipate the aggressive immigration enforcement strategies that would be instituted during the first week of the new presidential administration in January 2017. At the same time, the participants were clear-eyed about the legacy of the 1996 immigration laws, recognizing that regardless of the outcome of the election, the legal and administrative regime established by those laws—and subsequently expanded and consolidated under both Republican and Democratic administrations—almost certainly would continue to cast a long shadow over immigration policy for years to come. As some of the contributors to this symposium observe, the prospects for meaningful immigration reform might ultimately be greater than they have initially appeared in the early months following the 2016 election. However, whatever various forms that such future immigration reform efforts might take, they inevitably will need to contend directly with the legacy of the 1996 experiment in comprehensive immigration severity.
Nevertheless, critics have accused the Obama administration of imposing by decree precisely that which Congress has declined to authorize by statute: namely, legalization of noncitizens who lack lawful immigration status. In this Article, I critically examine those assertions and develop a rationale for the deferred action initiatives, anchored in rule of law values, that has received no meaningful attention in recent debates about DACA and DAPA. As the decision by U.S. District Judge Andrew S. Hanen enjoining those initiatives illustrates, legal discourse has mirrored and reinforced the same incorrect claims about deferred action that circulate in anti-immigration political discourse. Like the Obama administration’s political critics, Judge Hanen repeatedly mischaracterizes the initiatives as providing “legal status” and, on that basis, flays the Obama administration for “total[ly] abdicat[ing]” immigration enforcement. These conclusions ultimately amount to what I describe elsewhere as “judicial truthiness,” highlighting an erosion of the conventional lines between litigation, adjudication, and public discourse in politically salient cases more generally.
The flawed discourse surrounding DACA and DAPA underscores the need for a more careful assessment of the complex relationships between enforcement priorities, prosecutorial discretion, and the rule of law in an era of mass deportation. The blunt and distorted nature of that discourse, however, in turn has distorted the substantive analysis of those relationships. As the scale of the expansive and fragmented immigration enforcement regime has grown to such enormous levels — making the interrelated challenges of ensuring consistent execution of the law and fidelity to enforcement priorities more formidable — the need for effective mechanisms to supervise the discretion exercised by rank-and-file officials has only grown more important. But even as it purports to respect the government’s enforcement priorities, the logic of Judge Hanen’s ruling would largely disable policymaking officials from implementing such mechanisms, requiring them instead to let the vagaries of the bureaucracy reign supreme. The decision therefore not only inhibits the agency’s ability to establish enforcement priorities and manage its scarce resources, but also fails to acknowledge the importance of rule of law values such as consistency, transparency, accountability, and nonarbitrariness in the execution of the immigration laws.
In this Article, I theorize and assess this underappreciated transformation of the techniques and technologies of immigration enforcement — their swift proliferation, enormous scale, likely entrenchment, and broader meanings. Situating this reconfiguration within a larger set of developments concerning surveillance and technology, I explain how these technologies have transformed a regime of immigration control, operating primarily upon noncitizens at the territorial border, into part of a more expansive regime of migration and mobility surveillance, operating without geographic bounds upon citizens and noncitizens alike. The technologies that enable this immigration surveillance regime can, and do, bring great benefits. However, their unimpeded expansion erodes the practical mechanisms and legal principles that have traditionally constrained aggregations of power and protected individual autonomy, as similarly illustrated in current debates over surveillance in other settings. In the immigration context, those constraints have always been less robust in the first place. Accordingly, I urge more constrained implementation of these technologies, to preserve zones where immigration surveillance activities do not take place and to ensure greater due process and accountability when they do.
A complete understanding of immigration enforcement today must account for how the evolution of enforcement institutions, practices, and meanings has not simply increased the number of noncitizens being deported, but has effected a more basic transformation in immigration governance. As the institutions of immigration surveillance rapidly become integrated into the broader national surveillance state, scholars, policymakers, advocates, and community members need to grapple more directly with the implications of that reconfiguration.
In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign—based entirely on what they had read in the newspapers—Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.
Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.
In this essay, I explain why these claims about "lawful presence" are incorrect and ultimately a red herring. Describing DAPA and DACA as entailing a grant of "lawful presence" mischaracterizes those initiatives, relying upon a misunderstanding of both the structure and content of immigration law and the manner in which undocumented immigrants are recognized and constructed as legal subjects. Moreover, as a legal matter, “lawful presence” does not even exist as a thing in the sense that Judge Smith and the plaintiffs describe it. In order to characterize DAPA and DACA as something other than guidance structuring the exercise of enforcement discretion, as permitted by existing law, both Judge Smith and the plaintiffs fashion a conception of "lawful presence" as constituting an aggregated, intertwined package of benefits, in a manner that approximates conventional understandings of lawful immigration "status." That conception, however, has no actual legal basis. Ultimately, since "unlawful presence" does not carry the meaning that Judge Smith and the plaintiffs ascribe to it, there is only the illusion of a substantive problem here.