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Immigration Federalism: A Reappraisal

Prathepan Gulasekaram, S. Karthick Ramakrishnan

This Article identifies how the current spate of state and local regulation is changing the way elected officials, scholars, courts, and the public think about the constitutional dimensions of immigration law and governmental responsibility for immigration enforcement. Reinvigorating the theoretical possibilities left open by the Supreme Court in its 1875 Chy Lung v. Freeman decision, state and local officials characterize their laws as unavoidable responses to the policy problems they face when they are squeezed between the challenges of unauthorized migration and the federal government’s failure to fix a broken system. In the October 2012 term, in Arizona v. United States, the Court addressed, but did not settle, the difficult empirical, theoretical, and constitutional questions necessitated by these enactments and their attendant justifications. Our empirical investigation, however, discovered that most state and local immigration laws are not organic policy responses to pressing demographic challenges. Instead, such laws are the product of a more nuanced and politicized process in which demographic concerns are neither necessary nor sufficient factors and in which federal inactivity and subfederal activity are related phenomena, fomented by the same actors. This Article focuses on the constitutional and theoretical implications of these processes: It presents an evidence-based theory of state and local policy proliferation; it cautions legal scholars to rethink functionalist accounts for the rise of such laws; and it advises courts to reassess their use of traditional federalism frameworks to evaluate these subfederal enactments.

Accounting for Punishment in Proportionality Review

Julia L. Torti

The Eighth Amendment has been interpreted to demand proportionality between an offender’s crime and his punishment. However, the current proportionality standard is widely regarded as meaningless. In weighing the severity of the crime against the harshness of the punishment, modern courts do not consider any aspect of the sentence beyond the number of years listed. This Note argues that a more comprehensive analysis of the features of a sentence that contribute to its severity has the potential to reinvigorate the proportionality principle by giving courts a fuller picture of the harshness of modern sentences. Although there are some hurdles to conducting this more robust analysis, this Note proposes methods by which courts could consider the true length of carceral sentences, the prison conditions in which the sentences are served, and the collateral consequences that accompany many criminal convictions. In so doing, this Note demonstrates that some methods of accounting more accurately for the harshness of punishments are neither impracticable nor in tension with other areas of Eighth Amendment doctrine.

Unscrambling the Egg: Social Constructionism and the Antireification Principle in Constitutional Law

Natasha J. Silber

Since the mid-twentieth century, the Court’s developing view on the social construction of identity has driven some of the most fundamental changes in modern equal protection jurisprudence. One of these transformations has been the development of what I call the “antireification principle” in the Court’s affirmative action cases. Under this principle, an important function of constitutional law is to regulate social meaning in accordance with the view that social categories like race are mere constructs. Guided by the antireification norm, the Court has used judicial review to block state action that, in its estimation, treats false constructs as real, important, or enduring. The Court, however, has been highly selective in its application of the principle outside of the race context. Where gender and sexuality are at issue, the Court has been more than willing to cast existing categories as real and even celebrate them.

This Note describes and questions the Court’s selective use of antireification, suggesting that there is no reason, per se, why antireification could not further the goal of social equality in the realms of gender and sexuality. By denying their bases in reality, the Court could—according to the logic of antireification destabilize all such identity constructs and decrease the harms they cause. This Note proceeds to hypothesize a set of explanations for the Court’s selective application of the principle, but ultimately finds each unsatisfying. Finally, it suggests that selective deployment of antireification is symptomatic of inherent contradictions embedded in the structure of contemporary equal protection doctrine, which relies upon fixed identity categories at the same time that it seeks to destroy them.

Wrapped in Ambiguity: Assessing the Expressiveness of Bareback Pornography

Christopher A. Ramos

Contrary to popular belief, pornography has not won the culture war. Far from enjoying the spoils of victory, pornography instead faces legislative ire up to the point of absolute prohibition. On November 6, 2012, close to fifty-six percent of voters approved the County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure B”), completely prohibiting “bareback”—or condom-free—pornography production. An intuitive response to such an imposition is to raise a First Amendment claim. However, bareback pornography has yet to receive explicit protection by any legislature or court. This Note takes a step toward assessing bareback pornography’s First Amendment status by first arguing that bareback pornography is sufficiently expressive to merit First Amendment protection under traditional theoretical justifications, doctrine, and emerging arguments for an expanded interpretation of First Amendment protection. This Note then argues that Measure B is a content-based restriction on protected expression and, therefore, should receive the Court’s most demanding scrutiny. Under such a test, Measure B should be deemed unconstitutional.

Randomizing Immigration Enforcement: Exploring a New Fourth Amendment Regime

Cynthia Benin

This Note draws upon immigration law to analyze a new Fourth Amendment regime put forth by criminal law scholars Bernard Harcourt and Tracey Meares. In Randomization and the Fourth Amendment, Harcourt and Meares propose a model for reasonable searches and seizures that dispenses with individualized suspicion in favor of random, checkpoint-like stops. Randomization, the authors contend, will ensure that enforcement is evenhanded and will alleviate burdens that result from discriminatory targeting. This Note explores the possibility of randomization in immigration enforcement, a useful context to test the Harcourt-Meares model because it exemplifies the ills the authors seek to address. Though analysis demonstrates that randomization falls far short of its goals, its failures are instructive. Indeed, the lens of immigration enforcement illuminates essential conditions that must exist in order for randomization to be viable.

Madison Lecture: Aliens and the Constitution

The Honorable Karen Nelson Moore

Beginning with this nation’s founding and continuing today, courts and political leaders have grappled with difficult questions as to the proper treatment of aliens— those individuals either living here or interacting with the government, but not bearing the title of “U.S. citizen.” In the annual James Madison Lecture, Judge Karen Nelson Moore explores the protections afforded to aliens by our Constitution, tracing those protections and their limitations across the many disparate legal contexts in which questions regarding aliens’ constitutional rights arise. Although the extent to which aliens possess constitutional rights varies with the closeness of their ties to this country, she explains that this single variable cannot account for the many nuances and tensions in federal jurisprudence relating to aliens’ constitutional rights. Closeness, after all, can be measured across multiple dimensions: immigration status, physical proximity to the United States (or to its borders), lawfulness of presence, and allegiance to the country.

Judge Moore first tackles the complicated meaning of alienage, discussing its conceptual definition separately with respect to the text of the Constitution, immigration law, and national security. She then considers the extent to which the Equal Protection Clause of the Fourteenth Amendment limits the government’s ability to draw distinctions between different classes of aliens. Possible differential treatment among classes of aliens presents complex constitutional questions that remain unresolved, particularly as those questions relate to the treatment of aliens unlawfully present in this country. The rights of this group are the most in flux: These aliens’ unauthorized presence in the country, combined with their close ties to the political community, makes them difficult to fit into existing legal categories.

The criminal procedure rights of aliens under the Fourth, Fifth, and Sixth Amendments are also considered, followed by a discussion of aliens’ due process rights with respect to civil litigation, immigration proceedings, and alien-enemy detention. Judge Moore highlights those areas at the outer reaches of current doctrine—the extraterritorial application of constitutional protections and the extent of executive power to combat terrorism. She articulates themes present in constitutional jurisprudence as it relates to aliens, providing a broad-lens view of this vast and complicated area of law.

Deference to Congressional Fact-Finding in Rights-Enforcing and Rights-Limiting Legislation

William D. Araiza

This Article examines the difficult question of the deference congressional fact-findings merit when they support legislation expanding or limiting individual rights. The deference question is crucial to judicial review of such legislation, yet the Supreme Court has offered little by way of a principled answer: platitudes about Congress’s expertise and co-equal status when it wishes to defer to such findings, and bromides about the Court’s superiority in constitutional interpretation when it does not. Scholars have described this important question as “radically under-theorized.” Any stable and useful theory addressing Congress’s ability to participate in the process of constitutional construction requires a better answer to the deference question than those which have been thus far offered. This Article proposes the outlines of such an answer.

This Article begins in Part I by identifying the three axes that should govern the deference question. Based on the insights gleaned from this analysis, Part II identifies six principles guiding the deference inquiry and applies them to congressional deference claims in several contexts: legislation enforcing the Equal Protection Clause, the Partial Birth Abortion Ban Act, a “human life” statute of the sort that has been proposed in the past, and the Voting Rights Act’s preclearance requirements. This Article concludes with a call for further research on this troublesome yet crucial question, which has so far generated only incomplete, unsatisfying answers.

Defining Recess Appointments Clause “Vacancies”

Amelia Frenkel

The Recess Appointments Clause gives the President the power to “fill up all Vacancies that may happen during the Recess of the Senate.” Throughout American history, the Clause has been the subject of intense constitutional focus, as well as political jockeying between the legislative and executive branches. The recess appointment of Richard Cordray as the first Director of the Consumer Financial Protection Bureau in January 2012 brought new attention to the issue, raising novel constitutional questions about the propriety of modern uses of the recess appointment power. This Note addresses the question of whether the President is constitutionally empowered to make recess appointments to newly created offices and concludes that he is not.

Assuming Responsibility for Who You Are: The Right to Choose “Immutable” Identity Characteristics

Anthony R. Enriquez

Golinski v. U.S. Office of Personnel Management, a district court case challenging the constitutionality of the Defense of Marriage Act, explicitly adopted a novel definition of immutability under the Equal Protection Clause. Now held in abeyance pending the Supreme Court’s decision in United States v. Windsor, Golinski’s discussion of immutability remains relevant because it articulated the rationale behind a number of recent lower court decisions in equal protection jurisprudence that reach beyond the context of sexual orientation. Such decisions turn away from talismanic protection of immutable characteristics determined by birth, and toward the right of all persons to choose fundamental aspects of their identity. They disavow “biological immutability,”—the traditional view of immutability which refers to a characteristic one cannot change, “determined solely by the accident of birth”—and instead rely on asylum law’s definition of immutability: not exclusively a characteristic one cannot change, but also a chosen characteristic that one should not be forced to change because it is fundamental to identity. This Note argues that asylum law’s “fundamental immutability” standard belongs in equal protection jurisprudence because it resolves inconsistencies in traditional equal protection jurisprudence caused by a biological immutability standard and because it harmonizes recent lower court opinions discussing race- and gender-related equal protection in an era of increased multiracial, intersex, and transgender visibility.

A Traditional Tort for a Modern Threat: Applying Intrusion upon Seclusion to Dataveillance Observations

Benjamin Zhu

Dataveillance, a method of surveillance that collects and analyzes massive amounts of data about individuals, poses a threat to information privacy because it allows companies to uncover intimate personal information that individuals never consented to disclose. No comprehensive legal framework currently exists to regulate dataveillance. A potential remedy lies in the common law torts designed to protect privacy. However, the most applicable of these privacy torts, the tort of intrusion upon seclusion, faces several doctrinal hurdles in regulating dataveillance because courts and commentators consider the initial collection of data to be the only potential privacy intrusion from dataveillance. This Note proposes that the tort of intrusion upon seclusion could be updated to effectively regulate dataveillance if courts recognize that dataveillance’s observation of new personal information constitutes its own privacy intrusion, distinct from the intrusion at the data collection stage. This doctrinal shift would overcome the doctrinal barriers to applying the intrusion upon seclusion tort to dataveillance.