Excerpted From: Daniel I. Morales, An Immigration Law for Abolitionists (And Reactionaries), 13 UC Irvine Law Review 1291 (November, 2023) (307 Footnotes) (Full Document)


DanielIMorales.jpegAs the crises of the twenty-first century mount, abolition is in the air. But some abolitions are harder than others. Abolishing immigration law is the most ambitious abolition of all: it asks rich states to value outsiders with the drive and ambition to immigrate as much as citizen-insiders who control the levers of the immigration power. Those insiders enjoy perpetual dominion over the most productive territories on Earth by dint of birth. They are aristocrats, really, and they are partial to the exclusive control they enjoy over immigration. Their governments reflect that partiality and jealously guard the borders to the rich world, even as thousands die attempting to reach its shores, hoping merely to contribute to and share in these riches. Abolition of immigration law seeks to annihilate the intentional parochialism of this arrangement; it is radical--and seemingly impossible--for seeking to do so.

Yet, despite this radicalism and impossibility, more people--especially citizens of the rich Global North--are stumbling into this version of equality than I ever dared to hope. Rather than regarding the entrance of all comers as a threat to“nation,” a small but growing cohort of citizens in rich states seems to view a noncitizen moving from Bangalore to Atlanta as about as threatening as an American citizen moving from Chicago to Houston. Supermajorities nationally accept that long-term, undocumented residents deserve the right to remain in the United States. This sentiment, under the right conditions, could become the normative foundation of immigration law abolitionism. The question for open-borders partisans, or even immigration expansionists, is whether comfort with this kind of human movement can be scaled and enriched.

In this Article, the second in a series, I ask what, if anything, law can do to help immigration law abolitionism along--or at least give it a fighting chance. After examining in detail the structures, practices, and laws that amass against immigration law abolitionism, I answer that law can aid abolition through a reconstruction of the immigration power. I suggest that decentralized power and more deliberative, participatory procedures are structural legal reforms that can extend, and perhaps grow, these nascent and exceedingly ambitious abolitionist demands. Happily, aiding abolitionists may also help to de-radicalize immigration reactionaries.

Calls to abolish immigration law are growing. Louder, more forceful demands to abolish the state apparatuses that enforce immigration law-- Immigration Customs Enforcement (ICE), Customs and Border Protection (CBP), and the Executive Office for Immigration Review (EOIR)--are increasingly forces to be reckoned with. These demands have grown more potent by allying themselves with social movements seeking abolition of the carceral state in toto--and tout suite.

Immigration law abolition, however, carries a burden that other abolitions don't: “normative nationalism.” Normative nationalism is the conviction that every nation-state has the right and duty to manage the expulsion of noncitizens and admission of “aliens” from abroad as it sees fit. This “commonsense” is supported not only by the parochial citizens who gain monetary and emotional sustenance from their monopoly on immigration control, but also by hoary theories of Westphalian sovereignty that still garner regular and widely read defenses by contemporary political and legal scholars who preside over prestigious departments at elite schools. These contemporary theorists provide ballast for normative nationalism with full awareness that normative nationalism condemns billions of human beings who wish to move across the globe to stunted horizons and lives that, for many, might count as “nasty, brutish and short.” These scholars are also aware of just how immaterial harms from immigration are for citizens in wealthy democracies. The persistence of these arguments, despite empirical shortcomings that ought to be devastating, is a textbook example of the way that knowledge production tends to serve existing arrangements of power rather than dismantle them.

For abolitionism to have a chance against the cultural-social-legal fortress of normative nationalism, the immigration power should be decentralized and denationalized--it must be reconstructed. The way to attack the normative nationalism that holds the violence of immigration law together is to fortify the power of plural, distinctive, and diverse sub-national spaces to make immigration policies. Whatever immigration law structure we adopt, normative nationalism will continue to thrive, and immigration law abolitionism will likely remain embattled. As long as the national monopoly on immigration control remains in place, immigration law abolitionism, whatever its potential, will be stunted.

Radical as this reconstruction of immigration law may appear, we already have the evidence we need to conclude that centralized control of the immigration power is bankrupt. We also already know that spaces of abolition can exist and can be nurtured at the sub-national level, especially in sanctuary cities. All that's left then is to formally empower the geographies with political formations that are already experimenting with abolitionist norms, perhaps expanding these empowered geographies to metropolitan scales that track economic geography and provide sufficient room to roam for locally invited immigrants. Chicago's metro area, after all, boasts an economy the size of Switzerland's. Limiting the residency of immigrants to that geographic and economic scale poses no significant moral or ethical problem in the likely case that decentralization expands America's immigrant carrying capacity beyond the levels reached by centralized national control.

While a more pluralist policy regime may also embolden already-unaccommodating, anti-immigrant geographies, it's important to acknowledge that such geographies already possess most of the legal tools that they need to enact their own immigration policies, no matter the technical preemption of their authority over these issues. Texas can erect the border wall that Trump failed to build. Phoenix can devote local resources to rounding up immigrants for ICE to deport. Sanctuary spaces, by contrast, lack the critical legal tools they need to become actual sanctuaries--havens from ICE and the broader immigration enforcement apparatus. Chicago cannot stop a deportation or keep ICE from its borders. New York cannot grant asylum to Syrian, Afghan, or Venezuelan refugees--or to Ukrainians. Formal decentralization would correct deep asymmetries in the market for immigration policies that prevail under centralized national control.

There's also reason to think that decentralization would better meet the emotional needs of citizens who object to an America in racial flux--the underlying cause of nativist backlash. Situating immigration control at lower levels may also lead to more sanguine and concrete discussions of migration law everywhere, even in places with racist and restrictionist postures. Evidence that American citizens are capable of thinking straight about immigration when they think at a small, local scale about immigration emerged in the aftermath of Trump's election. As deportations became indiscriminate and more numerous, just as Trump had promised, countless Trump voters that despised “illegals” in the abstract found themselves crestfallen and shocked that a family member/neighbor/friend who was a “good illegal immigrant” had now been expelled.

These moments of citizen recognition of the senseless violence of American immigration policy show that immigration politics is in large measure produced by the structure of the immigration power and is not necessarily or squarely a reflection of the polity's well-considered views. What we view as the people's will on immigration, then, likely does not reveal stable, immutable, or underlying policy preferences but instead reflects feelings of generalized threat, stoked and made existential by the choice to maintain the immigration debate on the national stage, or in its shadow.

The case to reconstruct the immigration power for abolition proceeds in three parts. Part I makes the case that immigration law is bad law; it shows that guarantees of legal quality in a liberal democracy simply do not exist in immigration law and that immigration law's legitimacy is weak for these reasons. The problem is so dire that abolitionist currents have emerged in immigration movements, reflecting a view that immigration law is fundamentally illegitimate and unreformable. Part II parses the Senate debate about a twenty-year-old failed immigration bill entitled the Development, Relief, and Education for Alien Minors (DREAM) Act. Through a close reading of these public and private debates, I build the case for the fundamental incompatibility of national immigration control with rational--much less “just”--immigration law. I close the section by fast-forwarding to 2021 and analyzing the failure of the most promising effort to fix immigration law in a generation: an effort that collapsed in December 2021. I pay particular attention to the Senate parliamentarian's role and conclude that the precedents set by her rulings ensure that there will be no viable national route to granting amnesty to undocumented people for the foreseeable future. Part III lays out a vision for reconstructing the immigration power--the power to invite and remove immigrants--by granting such powers to metropolitan areas and their rural analogues. This vision is responsive to the insights of the first two Parts and makes the case that this kind of decentralization will open up a path to nurture radical abolitionist currents in immigration activism, as well as sate the needs of American reactionaries, the plurality of Americans who have trouble coping with the diversity and pluralism of modern life.

[. . .]

My final suggestion for immigration reformers: elevate the status of decentralization on the reform agenda. Careful and thoughtful decentralization should be second on the reform agenda only to the full legalization of our eleven million undocumented. My case for the strategic wisdom of prioritizing this change over many others is that it is a win-win structural reform that opens up possibilities for much better pro-immigrant outcomes in the future in many localities or states that migrants would be willing to move to. Abolitionists and restrictionists gain something tangible in this reform, a rare thing in a political battle that has become increasingly absolutist and zero sum.

For those who nonetheless continue to fear terrible outcomes despite my arguments here and elsewhere, I suppose I would ask two questions. First, do you truly believe in the material or normative case for more migration? And second, do you believe in the power of advocates in a properly structured democratic setting to persuade fellow citizens of the material and moral case for more migration? I believe in the truth of both of these statements. If you do as well, then I believe your fears of immigration law decentralization are unfounded and I urge you to join in the effort to make immigration power decentralization a priority.

Daniel I. Morales, Associate Professor of Law, University of Houston Law Center.