The Institutional Structure of Immigration Law

In a series of papers, Professor Adam Cox and I argue that immigration scholars should give more attention to the institutional structure of immigration law, using models and principles drawn from economic theory. Most existing scholarship takes different approaches. A large doctrinal literature attempts to work out the legal implications of the immigration code and the cases. Another literature, heavily normative, is oriented to advocacy and is particularly concerned with racism and other forms of discrimination in immigration law, and the ways in which immigration law falls short of what authors see as constitutional requirements, international obligations, or moral principles. A third literature takes a historical perspective on immigration law but usually focuses like the second literature on the role of racist and other invidious motives in the evolution of immigration law.

As a result of these dominant strands in this literature, the institutional structure of immigration law and its normative foundations has received less attention than it deserves. By the institutional structure of immigration law, I mean the rules and institutions of immigration law, their behavioral effects, and the connection between these effects and various normative goals that can plausibly be attributed to immigration policy. So there is a descriptive question—What effects does immigration law have on the behavior of migrants and Americans who interact with them, such as employers? And then there is a normative question—Do these behavioral effects advance legitimate goals of public policy?

Of course, the goals of immigration law are heavily contested. Some people believe in open borders; for these people, immigration law can serve no legitimate purpose. But there appears to be a rough consensus in this country that open borders are not obligatory and that immigration law should permit the migration of people who will make significant contributions to US social welfare, in particular (1) those who bring important skills or fill gaps in the labor market, (2) those whose presence would permit family reunification, while in both cases (3) people who intend to migrate permanently should share American values and be capable of integration into society. Let us consider these goals as roughly legitimate, and take them as given. Numerous questions of institutional design remain. How should immigration law be structured so as to advance these goals? For example, should the government ensure that these goals are satisfied for each potential migrant by requiring her to take a test? Or would it be better to let promising migrants enter the country and then make permanent residency conditional on satisfactory behavior over a period of time?

In this Article, I summarize and develop the approach that Professor Cox and I take to answering these questions, and use this approach to shed light on recent debates touching on the institutional design of immigration law.