The Normalization of Immigration Law

LeBuhn, Mac | April 24, 2017

In “The Normalization of Foreign Relations Law,” Professors Ganesh Sitaraman and Ingrid Wuerth argue that the Supreme Court increasingly treats foreign relations law like other bodies of law—it has “normalized” this body of once-exceptional law. However, a subset of foreign relations law, immigration law, receives little attention in their account, which obscures the fact that immigration law, unlike the rest of foreign relations law, has not normalized in nearly the same fashion.

To understand the normalization of immigration law, this paper proposes a theory of rights normalization: the Court has been reluctant to normalize immigration law except where immigrants’ rights are most at issue. Unlike foreign relation law normalization, immigration normalization has been halting and uneven in the contexts of justiciability, federalism and executive dominance. Yet, in questions affecting immigrants’ constitutional or international human rights, the Supreme Court has been more willing to normalize immigration law. Naturally, all immigration cases affect the rights of immigrants in some manner, but the Supreme Court shows an increased willingness to identify and employ rights claims as the basis for rejecting exceptionalist arguments. In this way, the Supreme Court implements rights normalization.