Academic

Wishnie on Proportionality in Immigration Policy

By Lawrence Solum

Michael J. Wishnie (Yale Law School) has posted Proportionality: The Struggle for Balance in U.S. Immigration Policy (University of Pittsburgh Law Review, Vol. 72, 2011) on SSRN. Here is the abstract:

The current debate regarding state and local enforcement of national immigration laws is not primarily a struggle to achieve a more perfect balance in state-federal relations. Rather, it is an underlying, substantive disagreement about the content of our immigration policies.Another way to describe this more fundamental disagreement is as one about proportionality ? whether the sanction of removal fits the offense for which it is meted out. Proportionality is a concept with ancient roots in Anglo-American law, and is reflected in numerous common law rules and constitutional provisions. In the United States, judicial enforcement of the constitutional command of proportionality tends to operate as a limiting principle, restricting government action only in extreme cases. The principle may have useful application in the immigration context. Removal orders should be subject to proportionality review by courts, both on a case-by-case basis and categorically. This is so under the Eighth Amendment, at least in cases where a removal order is the result of a criminal conviction. This is also so under the Fifth Amendment Due Process Clause, even where deportation is not the result of a criminal conviction, because a removal order is a punitive sanction that mandates departure and also bars lawful return for a period of years. Respondents in removal proceedings might argue that their removal ? whether because relief has been denied, or because no relief is available at all ? would violate the constitutional requirement of proportionality. Courts will honor these principles, and Supreme Court precedent, by adjudicating both case-by-case and categorical proportionality challenges. In appropriate cases, courts should find that removal is so grossly disproportionate to the gravity of the offense as to be forbidden by the Constitution.

Full post as published by Legal Theory Blog on December 14, 2010 (boomark / email).