Shadow regionalism in immigration enforcement during COVID-19

Document Type

Article

Publication Date

10-2023

Journal Title

Theoretical Inquiries in Law

ISSN

1565-3404

DOI

10.1515/til-2023-0023

Abstract

Stark variations exist in U.S. immigration enforcement. These variations have persisted even during the COVID-19 pandemic, when special measures that should have constrained variations were in place. This Article argues that variations in discretionary enforcement decisions based on resistance to national policies, bias, illegal tactics, or arbitrariness are unjust and should be curtailed. The Article first distinguishes between transparent sources of variation in immigration law and variations that stem from non-transparent, discretionary determinations. Within the category of discretionary determinations, the Article argues that there are just and unjust variations. It contends that unjust variations raise serious constitutional concerns, weaken preemption doctrine, and require us to reconceptualize the immigration federalism debate to account for cooperative and uncooperative behavior within the federal government itself. Finally, the Article offers solutions to help limit unjust variations.

First Page

241

Last Page

266

Num Pages

26

Volume Number

24

Issue Number

2

Publisher

De Gruyter

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