Group 1: Immigration and State Law
Immigration Federalism and the Promise of State Constitutions
Joanne Gottesman, Rutgers
This article is the first to broadly explore state constitutions’ promise and pitfalls for the immigrant rights movement. This is a particularly urgent endeavor, given President Trump’s reelection and a U.S. Supreme Court that is willing to reverse longstanding precedent. Even cases like Plyler v. Doe, with its guarantee of free public education to undocumented children, could be vulnerable. While U.S. Supreme Court opinions protecting immigrant rights are the gold standard, state courts and state constitutions provide a critical alternative avenue for relief that should not be overlooked.
This article examines state appellate decisions that rely on state constitutions to defend immigrant rights in several areas including equal protection, public education, public welfare, voting rights, and effective assistance of counsel. It also considers the types of state constitutional provisions that have helped expand noncitizens’ rights and thwart anti-immigrant measures in the past. It concludes that even if new explicitly pro-immigrant state constitutional provisions are not politically or practically feasible, advocates should still embrace state constitutional arguments and look to provisions already embedded in some constitutions.
The Unseen Deportation Dilemma in Record Clearing Policies: Crafting Immigrant Inclusive State Reform
Noncitizens face devastating immigration penalties as a result of contacts with the criminal legal system in addition to the obstacles to employment and eligibility for social safety net programs faced by citizens. A wide range of criminal convictions, including minor offenses, result in immigration penalties such as deportation and ineligibility for status or citizenship. The majority of convictions arise in state and local jurisdictions yet are utilized for federal immigration enforcement. There is no statute of limitations on when a criminal conviction can trigger an immigration penalty and the immigration law has been interpreted to give no effect to state post-conviction adjudications that expunge or otherwise modify convictions as a result of rehabilitation or the passage of time, leaving people with convictions permanently at risk. State record clearance policies have emerged as a way to mitigate the ongoing impacts of criminal convictions. However, these reforms have been largely legally ineffective for immigration purposes. While federal reform is the most straightforward way to address the problem of permanent and disproportionate immigration penalties for state convictions, it is unlikely that reform is likely in the current political climate. As a result, advocates and legislators can develop creative approaches to state reform by incorporating a theoretical approach to record clearance policy development that is inclusive of the challenges faced by immigrants.
Reprocessing Immigration Law's Plenary Power Doctrine
Aadhithi Padmanabhan, Univ. of Md
This article reconsiders the role that the plenary power doctrine plays in immigration law. While most scholars who study plenary power center case law in which noncitizen plaintiffs sued the federal government, my article shifts the focus to cases in which the federal government is aligned with immigrant rights advocates to challenge anti-immigrant state laws or to defend immigrant-protective federal immigration policies. The plenary power doctrine appears in these cases not to deny, but to validate legal protections for noncitizens. Appreciating this aspect of the plenary power doctrine has profound implications both for the study of immigration law as well as for the strategies that advocates could apply to bring about meaningful social change.
Discussant: Lori Nessel, Seton Hall