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Daniel Kanstroom

Abstracted from: Daniel Kanstroom, “Alien” Litigation as Polity-participation: the Positive Power of a “Voteless Class of Litigants” , 21 William & Mary Bill of Rights Journal 399 (December, 2012)(487 Footnotes).


       Well-funded illegal alien activists in Southern California have found a new way to attack Americans fighting for secure borders and enforcement of current immigration laws. The fight has moved from the streets where they wave the [sic] their Mexican flag to America's civil courtrooms.
             -Quote from an article posted on Ron Paul Forums, Feb. 9, 2010

Immigration policy shapes the destiny of the Nation.
             -Arizona v. United States

Again and again, the cure for corruption, withdrawal, and alienation is . . . aliens.
             -Bonnie Honig, Democracy and the Foreigner

      The framing title of this Symposium-Noncitizen Participation in the American Polity-seems to present an obvious contradiction: How can noncitizens, who are by legal definition “aliens” and often seen as “outsiders;” who are frequently de scribed as lacking full “membership” in society; and who rarely, if ever, have the right to vote, participate in the polity? In particular, can the undocumented-who by definition have violated U.S. law, who face the existential epithet of being “illegal aliens,” and who have been well-described as living under “a regime of enforced invisibility” -possibly do so? Are they even part of the polity? And if they do somehow manage to participate, how should we assess such actions?

      The apparent contradiction is largely illusory. Noncitizen participation in the American polity (including the participation of undocumented noncitizens), though mostly undertaken by means other than voting, has long been a reality in the United States. This historical fact remains true notwithstanding such current initiatives as Arizona's cynical policy of “attrition through enforcement.”

      This Article examines such participation and considers a provocative normative claim: noncitizen polity-participation is a crucial, positive engine of constitutional evolution and, as such, an essential component of politico-legal legitimacy. Justice Kennedy's opinion was clearly right, in Arizona v. United States, to affirm that “[i]mmigration policy shapes the destiny of the Nation.” This is equally true of noncitizen polity-participation in its various forms. Litigation by noncitizens is a surprisingly large-and surprisingly under-appreciated-aspect of the deep truth also noted by Justice Kennedy, that “[t]he history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”

      Litigation by noncitizens is always a controversial topic, especially when cases are brought by the undocumented or their advocates. As a prominent retired ICE agent has put it:

       Allow me to understand this correctly. Illegal aliens, people who have committed a crime by entering this country illegally, and who continue to commit additional crimes by using counterfeit documents to project a status they are not entitled to, are suing cities and citizens for disrupting their RIGHT to work in the US, even though they have no such right? . . . It's time for the good citizens of this country to fight back through the courts . . . .

      An online commenter responded, “They do have nerve. How on earth can anyone living in a country illegally have the audacity to sue for ANYTHING. . . . Only in America.”

      Such sentiments have percolated up into legislative proposals. In 2010, Texas State Representative Leo Berman (R-Tyler) introduced a bill that sought to prevent people who are in this country illegally from filing lawsuits or other claims in Texas courts. “If he is in the United States illegally, he shouldn't have access to our courts,” explained Berman. Even federal judges have expressed concerns of this type. In 2010, the District Court for the Northern District of Oklahoma considered challenges to the Oklahoma Taxpayer and Citizen Protection Act of 2007, which had sought to prohibit various forms of polity-participation by noncitizens. Although the undocumented plaintiffs had Article III standing, the court would not consider their claims for “prudential” reasons. As the judge noted, courts have traditionally refused “to entertain cases” brought by “plaintiffs with unclean hands.” However, the judge moved from this basic principle of equity to the conclusion that the “illegal alien Plaintiffs seek nothing more than to use this Court as a vehicle for their continued unlawful presence in this country.” To allow them to do so, the judge concluded, would make him an “abetter of iniquity,” a result he found “unpalatable.” The judge then adopted what he termed:

       a new, and narrow, prudential limitation on standing. An illegal alien, in willful violation of federal immigration law, is without standing to challenge the constitutionality of a state law, when compliance with federal law would absolve the illegal alien's constitutional dilemma-particularly when the challenged state law was enacted to discourage violation of the federal immigration law.

      Such logic has inspired others. The unpublished Oklahoma opinion was prominently featured in the brief authored by attorney/activist Kris Kobach before the Third Circuit Court of Appeals in Lozano v. City of Hazelton. The brief argued that “this prudential standing rule” was “based firmly in Supreme Court precedent.” The “closing of the courthouse doors,” wrote Kobach, was justified for “those tainted with inequitableness or bad faith related to the matter in which they now seek relief.” This argument was properly rejected by the Third Circuit Court of Appeals as “particularly troubling.” But the court's reasoning on this point was summary.

      Debates about the propriety and wisdom of noncitizen (“alien”) litigation as polity-participation are hardly new. Most modern concern is about the undocumented. But historically, courts have had to engage similar questions against an ever-changing backdrop of legal statuses. The Dred Scott case, for example, was most specifically about federal diversity jurisdiction. The primary question, according to Chief Justice Roger Taney, was related to citizenship status and the possibility of litigation in federal courts:

       The question is simply this: Can a negro whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution?

      The Court's answer was clear and easy to report. As stated in the New York Daily Times, the holding was: “Negroes, whether slaves or free, that is, men of the African race, are not citizens of the United States by the Constitution.” This meant that, as the Plaintiff was held not to be a citizen of Missouri, there could be no diversity jurisdiction and the case had to be dismissed. An essential underlying idea was that for purposes of national citizenship, “[t]he words ‘people of the United States' and ‘citizens' are synonymous terms, and mean the same thing.”

      To understand this sort of reasoning, we must engage some difficult definitional and interpretive questions. Although we can define citizens and noncitizens with a fair degree of legal precision, such other terms as participation and polity are inherently much more complex. Indeed, the terms' definitions inform our understanding of the aspirations and potentially exclusionary aspects of citizenship itself.

      Polity-participation is prototypically accomplished by voting, the practice most directly linked to political legitimacy in a democracy. As Martin Luther King, Jr. once famously asserted, an “unjust law,” by definition, “is a code inflicted upon a minority which that minority had no part in enacting or creating because they did not have the unhampered right to vote.” Surprisingly to many, there is no clear text based federal constitutional right to vote in U.S. elections (even for citizens) though the judiciary has long recognized its significance and need for protection. However, voting is the one act of civic engagement that is almost universally denied to noncitizens in the United States. Indeed, voting may be a ground for the removal of a noncitizen, as well as for criminal charges. The constitutional rights to run for federal elective offices and various rights not to be discriminatorily denied the vote are also expressly limited to citizens.

      The most basic justification for such limitations is the view that voting is a sine qua non of democratic membership, and that citizenship is the legal proxy for such membership. The arguably unjust aspects of this system regarding noncitizens are mitigated by the doctrine that even “illegal aliens” are persons entitled to due process protections by the Fourteenth Amendment's protection of jus soli citizenship, by jus sanguinis laws, and by the relatively open nature of contemporary U.S. naturalization. A common rejoinder to advocates of noncitizen voting is thus: “If immigrants really want to become part of their community, why don't they make the commitment to become U.S. citizens?” This is a complex and important debate; but my purpose in this Article is not to revisit it.

      Citizenship status is of course a much narrower concept than either polity-membership or polity-participation. Although the category of citizenship articulates certain legal rights and responsibilities, “the mechanisms through which this articulation is shaped and implemented can be . . . [usefully] distinguished from the status itself.” Indeed, as Saskia Sassen has noted, the meaning of citizenship is “partly produced by the practices of the excluded.” This insight is truer still of polity-participation. Noncitizens-even if undocumented-are powerfully present in the United States, as in many other countries. These “unauthorized yet recognized” people participate in the community where they reside-raising families, schooling children, holding jobs, etc. Such informal enactments of dimensions of citizenship may “produce an at least partial recognition of them as full social beings.”

      This Article focuses on litigation as a form of polity-participation. I use as a touchstone Robert Jackson's choice of phrase in the 1950 case of Wong Yang Sung v. McGrath. When describing the noncitizens whose procedural rights were at issue in deportation hearings (arguably governed by the new Administrative Procedure Act) Jackson called them “a voteless class of litigants.” He continued to describe them as people “who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused.” This phrasing prompts questions: What relationship between voting and litigation and what understandings of noncitizen polity-participation does such a nomenclature imply? Is litigation by “voteless” noncitizens, perhaps ironically, related to processes of democratic self-government? If so, should it be encouraged or limited?

      Part I of this Article explores models of noncitizen polity-participation from a philosophical perspective and then through the lenses of citizenship and the idea of the polity. Part II then explores various examples of noncitizen litigation and explores the substantial influence of such cases well beyond the immigration or the “aliens' rights” arenas. My focus is particularly on what “votelessness” has to do with noncitizen litigation: i.e., the relationship between those two ideas as we seek to understand such litigation as legitimate-perhaps essential-polity-participation. The point is not to justify current exclusions or to somehow use access to courts as a substitute for the full and free polity-participation that a (properly) weak version of citizenship and a truly strong version of human rights protections would entail. Rather, the goal is to develop a strong rejoinder to those who decry or seek to restrict litigation by “illegal aliens” and other noncitizens.

      Jackson's phrase illuminates how litigation by noncitizens, both defensive and affirmative, is a powerful form of polity-participation. This will undoubtedly strike some readers as a strange assertion. Litigation is more typically seen as an alternative to polity-participation than as a form of it. Some aspire to maintain a bright-line distinction between law and politics. As a recent New York Times editorial criticized a Supreme Court decision: “In this labor union case, there is no getting around that the legal approach is indistinguishable from politics.” But one does not have to be a doctrinaire legal realist to see that such a rigid dichotomy cannot withstand much scrutiny. Although the contingency of legal reasoning has been well-described as “the most corrosive message of legal history” the message is by now fairly well-accepted. An overly formal or rigid line between politics and law obscures both the inevitably political aspects of legal decisionmaking and the inevitably legal aspects of majoritarian democratic power in a constitutional democracy. It seeks to separate phenomena that are inherently intertwined, indeed that depend for their legitimacy upon each other. As Robert Post has put it, “[j]udicial decision making is always enveloped within a larger political context that endows judicial work with legitimacy and effectiveness.” It is as much a reductionist mistake to view politics as the realm of irrational preferences as it is to view law as the realm of transcendent “neutral principles.” Simply put, “no sharp disjunction can be legislated between law and life, between judge and context, between neutrality and value.”

      This may seem a rather commonplace insight when stated at a high level of generality. The focus on noncitizen litigation, however, illuminates not only the inevitably intertwined nature of law and politics but also the uniquely significant role played by outsiders in the revitalizing enterprise of U.S. constitutional discourse. Consider the cover title of Time magazine's recent story about young, undocumented people in the United States: WE ARE AMERICANS. But then there is an asterisk: *Just not legally. We all know what this means: functional societal membership may differ from legal status. But for those who equate polity-membership with legal citizenship status, it is a powerful and dangerous claim.

      Its implicit power, like that of assertions by undocumented noncitizens of legal rights, may explain the strong negative responses it provokes. For example, those who opposed Legal Services funding for cases brought by “illegal aliens,” described such litigation as the promotion of illegal immigration. Kenneth Boehm, who served as counsel to the LSC board of directors from 1991 to 1994, likened LSC programs representing noncitizens to “heavy lobbying efforts, abortion litigation, referendum campaigns and a host of other prohibited activities.” Boehm's fears are powerfully framed in ways that show how much is at stake in the debate:

Imagine a national network of experienced lawyers available to illegal aliens, free of charge, to sue government at the local, state, and national levels to obtain housing, education, welfare, and other governmental benefits. Imagine further that this national network of lawyers was also available to lobby, participate in referenda campaigns, and provide public relations services on behalf of their illegal alien clientele, again free of charge because the network was largely subsidized with federal funds. For good measure, imagine that this network of activist lawyers was also available to fight deportation of illegal aliens, even those with serious criminal records.

      One could-and many others besides Kris Kobach and Kenneth Boehm do-view noncitizen litigation as an annoyance, something to be, at most, grudgingly tolerated, if not limited, discouraged, or eliminated. As Peter Schuck piquantly put it some years ago, “We should stop crying wolf about nativism . . . [and we should celebrate] America's openness to self-supporting, law-abiding newcomers who don't demand special breaks.” Such “special breaks” included what others have called basic due process protections in deportation proceedings.

      How might one respond to such statements? The most common rejoinder views litigation by undocumented or deportable noncitizens in a sort of protective or tragic mode. On this view, rights litigation by noncitizens is a necessary corrective to (arguably legitimate) political exclusion from voting. Such litigation is on this view necessary to prevent extreme exploitation and to rectify and prevent certain types of wrongful conduct against noncitizens. Undocumented noncitizens are, for example, “especially vulnerable” to workplace exploitation. They may find it almost impossible to enforce workplace protection rights due to fear of deportation. Indeed, even those who are legally present may be vulnerable to exploitation because of lack of language skills, lack of familiarity with the legal system, isolation, and dependency on employers for “housing, food and other necessities of life.” There is surely important truth to all of this. But it is an incomplete and, I will suggest, unduly defensive model. It relies upon simplistic understandings of polity-participation and of constitutional democracy itself, especially in a self-styled “nation of immigrants.”

      This Article offers a much more affirmative model. I contend that noncitizen polity-participation through litigation (whether defensive or affirmative) is neither a tragic corrective nor an annoyance. Rather, it is part of the dynamic process of defining the polity itself and of mediating the inevitable tension between majoritarian power and the “rule of law.” Indeed, it should be seen as an essential component of the revitalizing project of American constitutional democracy. As Bonnie Honig has suggested, we should reframe the traditional question: “How should ‘we’ solve the problem of foreignness?” That question inevitably leads us to ask what “we” should do about “them.” A more intriguing and useful inquiry is: “What problems does foreignness solve for us?”

      We should thus rethink the legal role of “illegal aliens” whom Mae Ngai elegantly named “impossible subjects.” Ngai's essential point was that the “illegal alien [w]as a . . . legal and political subject, whose inclusion within the nation was . . . a social reality and a legal impossibility.” Actual participation in the workforce, in local communities, in small businesses and in schools and other community entities was accompanied by a lack of basic rights and the exclusion from citizenship. There is surely value in this characterization, but I want to consider reframing noncitizens (including in particular those with no legal status) as not only possible subjects, but as inevitable subjects. This approach thus connects with that of Hermann Cohen: “[I]n the alien, [[therefore], man discovered the idea of humanity.” Through noncitizens' legal participation in the polity, we discover richer, more just ideas of participation and of the polity itself.

      My aim, to reiterate, is not to justify the disenfranchisement of noncitizens. Judith Shklar and Jamin Raskin have strongly articulated normative and practical arguments in favor of voting by noncitizens. As Raskin has put it, “[T]he current blanket exclusion of noncitizens from the ballot is neither constitutionally required nor historically normal.” This is especially true of disenfranchisement at the local level since resident aliens, “who are governed, taxed, and often drafted just like citizens-have a strong democratic claim to being considered members, indeed citizens, of their local communities.” Jeremy Waldron has highlighted the powerful psychological and emotional costs of exclusion from voting. As Waldron notes, exclusion from the right to participate in collective decisions causes an insult that:

       does not require [an individual] to think that his vote-if he had it-would give him substantial and palpable power. He knows that if he has the right to participate, so do millions of others. All he asks . . . is that he and all others be treated as equals in matters affecting their interests, their rights, and their duties.

      One must also take care not to overstate the ability of courts to effect major social change. Still, people who do not (and who may not) vote participate in the polity in important ways. Through litigation, they help to define the rules of constitutional democracy. Ultimately, then, this Article advocates that we focus more seriously on how, as Alex Aleinikoff once put it, “the story of non-members and members of ‘quasi-polities' may be as significant as the story of disfavored full members.”

* * *

Conclusion: Noncitizen Participation by Litigation

       To discover the Constitution, we must approach it without the assistance of some philosophical guide imported from another time and place.
-Bruce Ackerman, Constitutional Politics/Constitutional Law

  Becoming a citizen of the world is often a lonely business.
             -Martha Nussbaum, For Love of Country

      Although Athenian democracy barred much formal polity-participation by women, slaves, colonial subjects, and aliens, Aristotle, a noncitizen metic (roughly, a legally resident alien), wrote that one should not posit as citizens all those people “without whom you could not have a city.” “Citizenship,” he thought, “required a certain excellence.” Slaves and aliens, as Michael Walzer put it, “stood within the arena, simply by virtue of being inhabitants of the protected space of the city-state; but they had no voice there. . . . They were the subjects of a band of citizen-tyrants, governed without consent.”

      This is thankfully not the case in the United States today, notwithstanding the arguable arbitrariness of birthright citizenship status, and the very serious disadvantages to polity-participation and threats to life plans and family that noncitizens face.

      The overlapping interests of citizen and noncitizen community groups have resulted in powerful coalitions in both the social and the political spheres. But, counterintuitively perhaps, the contribution of noncitizens to public discourse and to the polity is often most effectively accomplished through the legal system. Noncitizens, including the undocumented, are uniquely positioned to understand, to critique, and to improve the meaning of citizenship and constitutional democracy. This is both despite and because of the threats and disadvantages they experience. For noncitizens, law is a uniquely powerful and crucially important form of communicative interaction. Indeed, the law's “potential to” connect what Habermas called the “lifeworld to the systemic machinery of the economy and the administrative state” is a most powerful form of polity-participation in the U.S. system of a constitutional scheme of rights not exclusively based on citizenship status. Through the legal system, noncitizens are thus a crucial part of a “circular process that recursively feeds back” into engagement and debate. Since legitimate lawmaking both responds to and generates communicative power from below, noncitizens play a central role in translating communicative power into administrative power and law.

      As one who has made his career delineating the oppressive aspects of our regime of deportation, I fully recognize that this perspective may seem a bit Polyanna-ish. My goal has most certainly not been to justify current exclusions or to somehow use access to courts as a substitute for the full and free polity-participation that a (properly) weak version of citizenship and a truly strong version of human rights protections would entail. Until that happens, however, those who decry or seek to restrict litigation by “illegal aliens” should face the strong rejoinder that such cases-in long-standing, durable, crucially important ways-have benefited not only “them,” but all of us, together.

. Professor of Law and Director of International Human Rights Program, Boston College Law School.