Policing the Polity
abstract. The era of Chinese Exclusion left a legacy of race-based deportation. Yet it also had an impact that reached well beyond removal. In a seminal decision, the U.S. Supreme Court upheld a law that required people of “Chinese descent” living in the United States to display a certificate of residence on demand or risk arrest, detention, and possible deportation. Immigration control provided the stated rationale for singling out a particular group of U.S. residents and subjecting them to race-based domestic policing. By treating these policing practices as part and parcel of the process of deportation, the Court obscured the full reach of the law and its impact on U.S. communities. Through case studies of immigration policing and “anti-illegal immigrant” nuisance ordinances, this Essay argues that a “deportation-centric” framework continues to provide too limited a lens to recognize and redress unjustified surveillance within the United States. It argues for adopting what I call a “polity-centric” framework, which treats immigration status as necessarily fluid rather than fixed, and which considers the impact of front-end enforcement practices—including race-based demands to justify one’s presence—in light of the aim of building an integrated political community. This Essay closes by considering how a polity-centric framework could reorient how we understand the reach of immigration enforcement as it relates to antidiscrimination and Fourth Amendment doctrine.
author. Assistant Professor, University of North Carolina School of Law. I thank Monica Bell, Rabia Belt, Guy-Uriel Charles, Anne Coughlin, Ryan Doerfler, Jessica Eaglin, Trevor Gardner, Adam Gershowitz, Ingrid Eagly, Irene Joe, Kevin Johnson, Ben Levin, Stephen Lee, Kate Levine, Jamelia Morgan, Lindsay Nash, Jennifer Nou, Leigh Osofsky, Huyen Pham, Anna Roberts, Shalini Ray, and Juliet Stumpf for their helpful engagement with prior drafts. I also received many useful comments and suggestions at the Culp Colloquium at the University of Chicago School of Law, the Virginia Criminal Law Roundtable, the Yale Law Journal’s Legal Scholarship Workshop, and workshops at the University of Kentucky, University of California, Davis, Washington University, and Texas A&M University. Patrick Monaghan and the Yale Law Journal’s editorial team provided insightful editorial work. This Essay is for Avi, Amar, and Naya, who showed extraordinary grace during the pandemic as I worked to develop these ideas.
Introduction
The era of Chinese Exclusion is foundational to the field of immigration law. In enduring decisions, the U.S. Supreme Court upheld laws that provided for race-based exclusion and deportation. Today, immigration scholars often discuss the seminal 1893 decision, Fong Yue Ting v. United States, solely as a decision about deportation. Yet it had an impact well beyond the removal process. The Court upheld a law that required those of Chinese descent living in the United States to obtain a “certificate of residence” or else establish through “at least one credible white witness” their eligibility to remain in the United States.1 As a dissenting Justice put it, the law transformed targeted U.S. residents into “ticket-of-leave men”—a reference to former prisoners who risked reimprisonment at any time if they failed to carry and display their tickets-of-leave—who “cannot move about in safety without carrying with [them] this certificate.”2 The policing practices at issue in Fong Yue Ting reflected a racial presumption that those of apparent Chinese descent were indelibly foreign; race rendered them deportable and also obligated them to show their papers on demand.
Fong Yue Ting left two legacies that continue to shape immigration doctrine: the legacy of the “plenary power doctrine”—the doctrine of relaxed judicial review of federal immigration law3—and a legacy of race-based domestic policing in stated service of immigration control. Thus far, the policing practices at issue in Fong Yue Ting have received relatively little attention. That may be because the decision predates both modern deportation procedures and modern policing,4 or because the government ultimately chose not to pursue mass arrests or deportations.5 Scholars may also view the policing practices and deportation practices as two faces of the same coin. The same dynamics—racism, labor exploitation, colonialism, and an indifference to the suffering of those considered outsiders—produced both deportation and race-based policing.6
I do not seek to discount these dynamics; Fong Yue Ting’s holding with regard to deportation does much to explain the Court’s acceptance of race-based domestic policing. Yet my aim in this Essay is to show that its domestic policing legacy deserves recognition in its own right, and not only as a path to deportation. By conceptualizing the law as primarily about deportation, the Court adopted an analytic lens too narrow to recognize its impact on those who remained present. This “deportation-centric” account continues to shape how courts recognize substantive rights within the United States. “Immigration” law as a field governs admissions and removal decisions, while “alienage” law governs the treatment of noncitizens within the United States. But courts lack a vocabulary for recognizing a liminal space where people are subject to legal regulation because they are presumed not to belong.
This Essay shows how the deportation-centric approach developed and how it continues to shape contemporary understandings of immigration enforcement. It argues for a more expansive approach to understanding the reach and impact of immigration law, which I call a “polity-centric” approach. One problem with the deportation-centric framework is that it conceptually narrows the full reach of enforcement practices. If the aim of immigration control is to build an integrated political community inside the United States, then we need, at minimum, a better descriptive account of the legal processes employed in stated service of building the polity. Those legal processes include front-end stops and surveillance of U.S. residents, regardless of any subsequent connection to deportation.
Second, a deportation-centric account provides too limited a lens to recognize, much less redress, how enforcement practices themselves conflict with core constitutional protections inside the United States.7 Scholars have examined practices including immigration detention,8 jailhouse immigration screening,9 and criminal-immigration prosecution10 to show how the intersection of criminal and immigration law enforcement can magnify the carceral impact of enforcement choices while minimizing procedural protections. This Essay seeks to add to these conversations by showing how front-end enforcement practices—such as racialized demands that people justify their presence in a particular place—erode constitutional protections and cut against immigration goals of integrating people into a larger political community.
Recognizing front-end immigration-enforcement practices today is particularly important, given the close connection between immigration enforcement and domestic policing. In the domestic-policing context, courts and scholars have recognized the subordinating impact of race-based surveillance. In Terry v. Ohio,even as the Supreme Court upheld the constitutionality of police stops justified by a standard less than probable cause, it acknowledged the “difficult and troublesome issues” inherent in identifying “suspicious persons” and cited to the “wholesale harassment” that racial minorities report experiencing during police stops.11 A body of legal scholarship conceptualizes how domestic policing practices erect “racialized borders” within the United States.12 When policing practices target communities on the basis of race, they alienate communities at large from the body politic.13 As Professor Monica C. Bell writes, racialized policing practices create the perception among poor people of color that they are “essentially stateless—unprotected by the law and its enforcers and marginal to the project of making American society.”14
Race-based policing often operates the exact same way in the immigration context—yet in the immigration context, the justification is that the targets are “illegal” as well as criminal. During the period of Chinese Exclusion, the Court adopted a legal framework that accepted race-based policing as a means of protecting the polity from a foreign threat. And while that approach has shifted over time, it has never been abandoned altogether. Courts still characterize front-end policing practices as nothing more than a pipeline to deportation. This doctrinal approach essentializes deportation as the primary work that immigration enforcement does, at the expense of recognizing how front-end surveillance can operate in tension with the immigration-law goal of promoting integration into a larger political community.
This Essay aims to create a discursive space to recognize the front-end impact of immigration enforcement choices. I examine two contemporary case studies of a deportation-centric approach: immigration policing and “anti-illegal immigrant” nuisance ordinances. “Anti-illegal immigrant” nuisance ordinances are an example of shifting borders; localities employ the logic of national immigration control to justify surveillance and racial steering inside the United States. These ordinances operate with the stated aim of blocking those who lack lawful immigration status from obtaining rental housing within certain localities. When courts view these laws under the theory that they regulate immigration by encouraging “self-deportation,” they accept without justification the underlying assumption that Latinos who move into predominately white localities are “illegal aliens.” This analysis, in turn, is too narrow to recognize the full reach and impact of these laws, including their potential conflict with antidiscrimination law.
My analysis focuses on courts because of their role in safeguarding rights. However, it also has implications outside the doctrinal context. I argue for a broader recognition of how enforcement practices relate to building a political community. The kernels of a “polity-centric” approach appear in a 1941 case, Hines v. Davidowitz, which involved state surveillance directed towards Italian and German immigrants.15 There, the Supreme Court recognized how immigrants could become future citizens, and how singling out a particular group for surveillance could undermine important interests in free movement and integration into the polity.16
This Essay closes by considering how a “polity-centric” approach could reorient constitutional doctrine with regard to front-end enforcement practices. Local “anti-illegal immigrant” nuisance laws provide a case study for a more expansive understanding of the reach and impact of immigration enforcement practices. Any law that prevents people from living with whom they choose raises significant equal-protection concerns, including those that affect millions of mixed-immigration-status households.17 When courts frame these laws principally in relation to deportation, they obscure how they are part and parcel of a tradition of promoting residential segregation, including through laws that have racialized effects on intimate association.
This Essay also adds to a body of criminal-law scholarship that argues that police stops should be subject to greater scrutiny.18 Immigration policing embarrasses the notion that police are in the business of targeting suspicious conduct. Immigration is a legal status; it is not about anyone’s conduct at a particular time. Courts should also recognize how civil-enforcement responsibilities expand the coercive potential for police-resident interactions.19 This is particularly true when domestic police have the systemic power to initiate actions such as eviction without ever making a criminal arrest.
The balance of this Essay proceeds as follows. Part I argues that the era of “Chinese Exclusion” established a particular way of thinking about policing practices in the context of immigration enforcement. Namely, when it came to those racial minorities perceived as foreign, courts focused on how enforcement practices could lead to deportation, without considering how surveillance and arrest itself could undercut individual liberty interests. Parts II and III show the continuing impact of a deportation-centric approach over time through case studies of contemporary immigration-enforcement practices, with a focus on policing and “anti-illegal immigrant” nuisance laws, respectively. Part IV makes the normative case for a polity-centric approach and considers its doctrinal implications for antidiscrimination and Fourth Amendment doctrine.
The plenary power doctrine has been subject to a wide range of criticism. See, e.g., Peter H. Schuck, The Transformation of Immigration Law, 84 Colum. L. Rev. 1, 1 (1984) (“Probably no other area of American law has been so radically insulated and divergent from those fundamental norms of constitutional right, administrative procedure, and judicial role that animate the rest of our legal system.”); Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1, 5-12 (1998) (observing that “[i]mmigration law scholars love to hate the plenary power doctrine” and arguing that the doctrine was designed to maintain white supremacy); Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 607-12 (1990) (explaining how the plenary power doctrine has established conflicting constitutional norms in immigration law).
For a discussion of policing as primarily a subfederal phenomenon, see Trevor George Gardner, Immigrant Sanctuary as the “Old Normal”: A Brief History of Police Federalism, 119 Colum. L. Rev. 1, 29-30 (2019), which describes policing until 1918. For a discussion of the shortcomings of modern deportation procedures, see, for example, Jennifer Lee Koh, Removal in the Shadows of Immigration Court, 90 S. Cal. L. Rev. 181 (2017).
Gabriel J. Chin, Chae Chan Ping and Fong Yue Ting: The Origins of Plenary Power, in Immigration Stories 7, 17, 21 (David A. Martin & Peter H. Schuck eds., 2005) (explaining how the vast majority of targeted residents did not obtain the required certificates). The named plaintiffs were arrested and subsequently deported for not complying with the certificate requirement, but afterward, the “government chose not to take the opportunity to deport the Chinese community en masse.” Id. at 20.
A number of accounts emphasize how the legal processes of exclusion and deportation are fundamentally violent, discriminatory, and reflect unjustified power disparities. Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047, 1053-54 (1994) (criticizing the view that “the exclusion of aliens from access to various rights and benefits in this society properly preserves the benefits of membership for those deemed to belong within the moral boundaries of the national community” and arguing that it results in alienage discrimination); E. Tendayi Achiume, Migration as Decolonization, 71 Stan. L. Rev. 1509, 1517-21 (2019) (arguing for expanding the admission of economic migrants); Stephen Lee, Family Separation as Slow Death, 119 Colum. L. Rev. 2319, 2322 (2019) (criticizing the U.S. immigration system as “pervasively organized around principles of family separation”); Deborah M. Weissman, Angelina Godoy & Havan M. Clark, The Final Act: Deportation by ICE Air, 49 Hofstra L. Rev. 437, 477-81 (2021) (discussing physical abuse in the context of removal).
A large literature on “crimmigration” examines how the merger of criminal law and immigration law has expanded the enforcement powers of the government while simultaneously weakening procedural protections designed to guard against government overreach. See, e.g., Marisol Orihuela, Crim-Imm Lawyering, 34 Geo. Immigr. L.J. 613, 617-19 (2020) (discussing the need for “crim-imm” advocacy in light of intertwined civil/criminal consequences); Ingrid V. Eagly, Gideon’s Migration, 122 Yale L.J. 2282, 2300-13 (2013) (discussing the need for an immigration-defender system); Jennifer M. Chacón, Managing Migration Through Crime, 109 Colum. L. Rev. Sidebar 135, 140-47 (2009) (describing how lower procedural standards affect migration-related criminal prosecutions); Stephen H. Legomsky, The New Path of Immigration Law: Asymmetric Incorporation of Criminal Justice Norms, 64 Wash. & Lee L. Rev. 469, 475-99, 511-18 (2007) (discussing asymmetric incorporation of criminal-enforcement norms and weakened procedural protections in immigration law); Juliet Stumpf, Fitting Punishment, 66 Wash. & Lee L. Rev. 1683, 1689-1706 (2009) (examining how deportation lacks proportionality); Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 Harv. L. Rev. 1890, 1906-07 (2000) (conceptualizing how criminal-immigration enforcement functions as a site of postentry social control); David Alan Sklansky, Crime, Immigration, and Ad Hoc Instrumentalism, 15 New Crim. L. Rev. 157, 161-62 (2012) (discussing the instrumental use of criminal or civil tools by enforcement actors so as to maximize enforcement power); Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power, 56 Am. U. L. Rev. 367, 376-79 (2006) (coining the term “crimmigration” and discussing its implications). A related literature criticizes the weak procedural norms in immigration adjudication, where the stakes are arguably akin to criminal law because they include the potential for both detention and deportation. See, e.g., Shalini Ray, Abdication Through Enforcement, 96 Ind. L.J. 1325, 1337-41 (2021) (arguing that the President may be required to set meaningful removal priorities).
See, e.g., Anil Kalhan, Rethinking Immigration Detention, 110 Colum. L. Rev. Sidebar 42 (2010) (examining the merger of immigration control and criminal-law enforcement in the detention context); Ingrid Eagly, Steven Shafer & Jana Whalley, Detaining Families: A Study of Asylum Adjudication in Family Detention, 106 Calif. L. Rev. 785 (2018) (providing an empirical study of asylum outcomes for detained immigrant families); César Cuauhtémoc García Hernández, Immigration Detention as Punishment, 61 UCLA L. Rev. 1346 (2014) (arguing that immigration detention constitutes punishment); César Cuauhtémoc García Hernández, Naturalizing Immigration Imprisonment, 103 Calif. L. Rev. 1449 (2015) (arguing against immigration detention).
See, e.g., Eisha Jain, Jailhouse Immigration Screening, 70 Duke L.J. 1703 (2021) (focusing on problems with the government’s Secure Communities program); Jennifer M. Chacón, Whose Community Shield?: Examining the Removal of the “Criminal Street Gang Member,” 2007 U. Chi. Legal F. 317 (criticizing the methods by which immigration officials identify gang members as vague and overbroad); Eric S. Fish, The Paradox of Criminal History, 42 Cardozo L. Rev. 1373, 1379 (2021) (discussing how the impact of relying on heuristics such as past criminal charges and sentences varies markedly based on arbitrary differences in defendants’ records).
See, e.g., Peter L. Markowitz & Lindsay Nash, Pardoning Immigrants, 93 N.Y.U. L. Rev. 58 (2018) (examining the pardon power as a tool that should be used in immigration prosecution); Eisha Jain, Prosecuting Collateral Consequences, 104 Geo. L.J. 1197 (2016) (using immigration as a case study for how criminal prosecutors respond to collateral consequences during plea bargaining); Ingrid V. Eagly, Prosecuting Immigration, 104 Nw. U. L. Rev. 1281, 1288 (2010) (detailing a collaborative relationship between immigration and criminal prosecutors that undermines procedural protections and the civil/criminal divide); Stephen Lee, De Facto Immigration Courts, 101 Calif. L. Rev. 553, 556 (2013) (conceptualizing state courts as de facto immigration courts given how state criminal convictions may trigger mandatory immigration consequences); Jason A. Cade, The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court, 34 Cardozo L. Rev. 1751, 1796-1802 (2013) (discussing how noncitizen defendants in misdemeanor cases approach plea bargaining in light of possible deportation).
See, e.g., Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 947, 957 (2002); I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 46, 69 (2009) [hereinafter Capers, Policing] (describing how law-enforcement practices take into account “racial incongruity in assessing whether reasonable suspicion exists to justify a Terry stop” and how, consequently, “law-abiding minorities entering predominantly white neighborhoods are frequently stopped and questioned as to the reason for their presence in the neighborhood”); Aya Gruber, Policing and “Bluelining,” 58 Hous. L. Rev. 867, 873 (2021) (describing police “bluelining” as “maintaining raced and classed spatial and social segregation through the threat and application of violence”); L. Song Richardson, Cognitive Bias, Police Character, and the Fourth Amendment, 44 Ariz. St. L.J. 267, 280 (2012) (discussing how “entire neighborhoods of racial minorities are labeled as high crime,” which, in turn, “allow[s] officers to view nonwhite neighborhoods as hotbeds of criminal activity”); I. Bennett Capers, Rethinking the Fourth Amendment: Race, Citizenship, and the Equality Principle, 46 Harv. C.R.-C.L. L. Rev. 1, 19 (2011) (“Racial profiling is the source of at least five citizenship harms: scripting harms, race-making harms, stigma-legitimizing harms, virtual segregation harms, and feedback loop harms. Each alone is problematic. Collectively, they are citizenship diminishing, suggesting a racial hierarchy inconsistent with our goal of equal citizenship.”); see also Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 136 (2021) (arguing that the place to start an analysis of the defund movement is with the “structural marginalization of black people”).
Id. at 2057; see also I. Bennett Capers, Criminal Procedure and the Good Citizen, 118 Colum. L. Rev. 653, 655 (2018) (arguing that the Court’s policing jurisprudence conveys that a “good citizen” ought to be willing to surrender constitutional rights and submit to police searches and questioning); Capers, Policing, supra note 12, at 46 (arguing that “[w]hen racial incongruity functions as a factor” for police stops, it “sends [an] expressive message from a representative of the state about who belongs and who does not” (footnote omitted)).
See Paul Taylor, Mark Hugo Lopez, Jeffrey S. Passel & Seth Motel, Unauthorized Immigrants: Length of Residency, Patterns of Parenthood, Pew Rsch. Ctr. 6 (Dec. 1, 2011), https://www.pewresearch.org/hispanic/wp-content/uploads/sites/5/2011/12/Unauthorized-Characteristics.pdf [https://perma.cc/8CG3-WRER] (“Overall, at least 9 million people are in ‘mixed-status’ families that include at least one unauthorized adult and at least one U.S.-born child.”); Asad L. Asad, Latinos’ Deportation Fears by Citizenship and Legal Status, 2007 to 2018, 117 Proc. Nat’l Acad. Scis. U.S. 8836, 8836 (Apr. 21, 2020) (summarizing statistics that show that “26.6 million Latino US citizen adults live with 4.8 million noncitizens; 17.3 million Latino US citizen children live with 7.7 million noncitizens,” while further noting that “[e]ven in households where all Latino members are U.S. citizens, worries of being misrecognized as deportable . . . may contribute to deportation fears”).
See, e.g., Shawn Ossei-Owusu, Police Quotas, 96 N.Y.U. L. Rev. 529, 584-87 (2021) (explaining how police quotas can lead to overbroad stops); Jeffrey Fagan, Terry’s Original Sin, 2016 U. Chi. Legal F. 43, 86 (“[O]ne of Terry’s sins was placing a substantial burden of review on federal trial and appellate courts in a succession of suppression motions and constitutional challenges.”); David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271, 273 (arguing that the Court’s Fourth Amendment “understandings strongly favor law enforcement and, more troublingly, disregard the distinctive grievances and concerns of minority motorists stopped by the police”); Alexandra Natapoff, A Stop Is Just a Stop: Terry’s Formalism, 15 Ohio St. J. Crim. L. 113, 116-19 (2017) (arguing that Terry’s formalistic approach to police-resident interactions “flooded the system, eroding institutional protections against subsequent arrests, charges and ultimately convictions”).
Coercive policing practices, in turn, can contribute to residential segregation. See generally Monica C. Bell, Anti-Segregation Policing, 95 N.Y.U. L. Rev. 650 (2020) (identifying how policing perpetuates residential segregation and offering a framework for antisegregation policing); Deborah N. Archer, The New Housing Segregation: The Jim Crow Effects of Crime-Free Housing Ordinances, 118 Mich. L. Rev. 173, 179-80 (2019) (describing how “crime-free ordinances” and policing contribute to segregation); Jeffrey Fagan & Elliott Ash, New Policing, New Segregation: From Ferguson to New York, 106 Geo. L.J. Online 33, 112-34 (2017) (arguing that policing has resulted in legal and financial controls that amount to “new segregation”).