The problem with immigration law is that it is inherently repressive and right wing. Unless this essential character of immigration law changes, any attempt at really comprehensive immigration reform will come up short.
About as generation ago, legal scholars Philippe Nonet and Philip Selznick wrote a book called, Law and Society in Transition. Therein they introduced a template of legal development from repressive law to autonomous law and finally to responsive law. This evolutionary track coincides with the development of society from pre-industrial to industrial and now, since their book, to post industrial. Although the authors have since denounced some of their ideas as being poorly developed, the template’s chronology remains informative as a lens through which to understand the shortcomings of immigration law.
One of the chief weaknesses of immigration law is its ad hoc and arbitrary nature, making it one of the most labyrinthean civil legal codes on the federal books. A second weakness is that it serves political purposes, which means that unlike the “rule of law”–separate from politics and controls abuses of power– immigration law serves raw power; capable of unleashing unfettered plenary government powers against immigrants at the borders of territorial or political boundaries. Although most bodies of law enact some ritualistic balance between powers of government and individual rights, immigration law enacts no such ritual. Instead, the fearsome force of the sovereign meets the civilly naked (homo sacer) immigrant.
In addition to qualifying as the essence of repressive law as defined by Nonet and Selznick these qualities also comprise the essence of a conservative approach to law and justice, which George Lakoff describes in terms of the paternal disciplinarian who abjectly and coercively disciplines a child in the name of reestablishing family values. Repressive law can be an expression of deep anger in society at the loss of social cohesion (Durkheim’s collective conscience).
Think of society’s anger at the terrorists after 9/11, and more recently the T-party anger at the election of Barack Obama; how the birthers have challenged his citizenship; how Joe Wilson challenged his comments about unauthorized immigrants and health care) Think too of how US immigration authorities continue to expand executive powers against foreigners without deferring to basic due process (the rule of law) In the decade since 9/11, it has been revealed that immigrants have been racially profiled, subjected to secret detention, dataveillance, and separated from families. The property of persons along the border has been cavalierly taken (with quick bows to eminent domain) by the head of DHS (Michael Chertoff) who cavalierly declared sovereign powers over the area.
All these are examples of repressive law. As long as sovereignty remains the basis for immigration law and congress and the executive branch retain the plenary powers incidental to sovereignty, immigrants will remain subjects of executive whim.
The alternative, as Nonet and Selznick correctly documented is the transition from repressive law to “autonomous law,” which is nothing more than the rule of law. In the USA, the rule of law is defined through the lens of the constitution, which is the legitimate basis for law. The constitution places limits on the use of coercive power; it demands a system of due process which separates procedure from politics, and recognizes the basic rights of immigrants as persons under the constitution. And in the realm of paternal authority, it limits the legitimate ability of the strict father to abuse a child. Conservatives object to such limits as a desecration of family values; in the realm of immigration law, they channel their strict family values onto the immigrant; they release their anger at the immigrant’s moral offense (unauthorized entry; threat to the white majority’s numerical superiority) through punishment fantasies of the immigrant “alien-other.”
Sovereignty remains the right wing’s political delight, and immigration law its nightmarish fantasy legal system.