UC Irvine Law Review

Immigration law gets most things wrong and satisfies no one—not immigrants, not moderates, not restrictionists, and not abolitionists (the #AbolishICE crowd). It is bad law premised on skewed epistemic inputs—the fantasies of U.S. citizens—and enforced by a national agency with bloated resources tasked with solving a problem (illegal immigration) that causes no material harm. Migration law’s biggest failing is that it admits far fewer immigrants than our country has the capacity to take in, as the decades-long, peaceful, and productive presence of twelve million undocumented immigrants definitively proves. The bankruptcy of immigration law has been obvious for a few decades at least, yet comprehensive immigration reform has been impossible to enact over the same time frame. Now, with the death of the most promising legislative reform effort in a generation at the hands of the unelected Senate parliamentarian, it’s past time for a reassessment of immigration law and the ends and strategy of immigration reform.

In this Article, I argue that the reasons for the impasse on reform are structural and require a structural overhaul: a reconstruction of immigration law that destroys one-size-fitsall, national control and places chunks of the immigration power back in local precincts in metro areas, counties, or towns. This decentralized approach can increase our immigrant carrying capacity by allowing places that want and need immigrants to invite and attend to as many as they like. With time, some pro-immigrant locales might even cultivate an abolitionist, open-borders immigration politics from the bottom up. It wouldn’t be the first time. The abolition of slavery and the gay rights movements were both nurtured in sub-national jurisdictions with special cultures and characteristics. Only after consciousness raising and proof of concept were secured were these radically new norms and modes of being scaled up.

A local immigration law may also better sate the needs of American reactionaries. Social scientists teach that many of us are dyed-in-the-wool authoritarians triggered by social and racial pluralism. This personality type can only be soothed with a restoration of a sense of “oneness or sameness.” Locating debates about racial and social pluralism—i.e., the immigration debate—at the national level constantly and unnecessarily triggers authoritarians. Many authoritarians live in places that are racially and socially homogenous. A more local immigration power would allow this group to sate their thirst for homogeneity without imperiling the benefits of immigration for the rest of us: the majority of Americans that enjoy and thrive in a pluralist, multiracial order.