What Should Immigration Law Become?

Abstract

This Essay explores the future of immigration law and asks what it should become after the 2020 election. It begins with a discussion of some of the changes brought about by the Trump administration and exacerbated by the COVID-19 pandemic. In thinking about a starting place for immigration law, one can and should begin with human rights, ensuring international norms are met, providing the most vulnerable urgent protections, as well as responding to humanitarian crises. Simultaneously, immigration law can be viewed as a facet or subset of national security law, administrative law, or constitutional law, and at times all of these sources acting at once upon a particular immigrant or set of immigrants. This confluence of concerns drives the cacophony of voices, and hence the confusion and obfuscation which has frustrated comprehensive immigration reform and remedies for immigrants for decades. Other areas also of course impact the field. Another way of asking the same question is: How do we begin to explore imaginative possibilities at fixing the broken immigration system? In determining what immigration law should become this essay examines the possibilities inspired by three distinct “buckets” or categories: (1) Supreme Court decisions; (2) proposed and, thus far, unsuccessful legislation, including the immigration plan of candidate and former Vice President Joe Biden; and (3) remedies and approaches inspired by other fields of law. The Essay concludes with a discussion of legal analysis and a proposal for change.