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Immigration Blame ARTICLES IMMIGRATION BLAME David S. Rubenstein* This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities, and the U.S. Supreme Court’s plenary power doctrine come into sharper focus. In turn, this Article’s descriptive portrayal of immigration blame prompts some vexing normative questions: Is immigration blame desirable? Can its inputs and outputs be controlled? If so, how and toward what ends? In immigration, as elsewhere, blame is a paradox: both functional and dysfunctional, socially cohering and corrosive. That being so, we should not aim for a blame-free immigration system. Rather, we should seek ways to promote the values of immigration blame, while minimizing its more unsavory manifestations. Toward those ends, this Article prescribes an “ethics of immigration blame” and suggests ways that law might be harnessed to mediate some of blame’s pathologies. Today’s sociopolitical conditions crystallize the need for this work. INTRODUCTION .................................................................................. 127 I. BLAME ATTRIBUTION ................................................................... 134 A. Migrant Blame .................................................................. 135 * Professor of Law and Director, Robert J. Dole Center for Law and Government, Washburn University School of Law. For incisive suggestions, comments, and critiques on earlier drafts, the author thanks Jason Cade, Neal Feigenson, Pratheepan Gulasekaram, Kevin Johnson, Craig Martin, Daniel Morales, Lumen Mulligan, Susannah Pollvogt, and Leah Terranova. The author also thanks seminar participants at Auckland University, Victoria University of Wellington, and Otago University Faculties of Law. For superb research and editing, the author commends Jeremy Koehler, Alan Vester, Penny Fell, the Washburn library staff, and the Fordham Law Review. Blame the author for all errors. 125 126 FORDHAM LAW REVIEW [Vol. 87 B. Institutional Blame ........................................................... 137 II. PERCEPTIONS AND MISPERCEPTIONS .......................................... 143 A. Heuristics and Biases ....................................................... 144 1. Heuristics ................................................................... 145 2. Biases ......................................................................... 146 B. Emotions ........................................................................... 149 C. Cultural Influences ........................................................... 152 D. Packaging and Presentation ............................................ 154 E. “Blame Cascades” ........................................................... 157 III. BLAME AVOIDANCE ................................................................... 158 A. Presentational Strategies .................................................. 159 1. Migrant Blame Avoidance ......................................... 160 2. Institutional Blame Avoidance ................................... 163 B. Agency Strategies ............................................................. 164 C. Policy Strategies ............................................................... 166 D. Limitations ....................................................................... 167 IV. DYNAMIC IMMIGRATION BLAME ............................................... 168 A. Piecing It Together ........................................................... 168 B. Law as Input and Output .................................................. 170 C. Case Studies ..................................................................... 171 1. Amnesty ..................................................................... 171 2. Executive Immigration Enforcement (and Nonenforcement) ....................................................... 173 3. The Plenary Power Doctrine (and the Travel Ban) .... 181 4. Immigration Federalism ............................................. 184 V. NORMATIVE AND PRESCRIPTIVE DIMENSIONS ............................ 186 A. Valuing Blame .................................................................. 187 B. Blame-Avoidance Tradeoffs ............................................. 188 C. Ethics of Immigration Blame ............................................ 190 1. Blaming Only Blameworthy Action .......................... 191 2. Good-Faith Blaming .................................................. 192 3. Value-Based Blaming ................................................ 193 4. Receiving Blame ........................................................ 194 D. Legalistic Nudges ............................................................. 194 1. Agency Strategies ...................................................... 195 2. Policy Strategies ......................................................... 197 CONCLUSION ..................................................................................... 200 2018] IMMIGRATION BLAME 127 INTRODUCTION No single theory explains what makes our immigration system tick. But one idea—blame—has significant untapped potential. Common in our daily lives, blame registers disapproval of wrongful behavior.1 On a broader scale, blame is a tool for maintaining social and legal order.2 Indeed, the anticipation of being blamed causes most people, most of the time, to hew close to behavioral norms.3 This Article provides the first comprehensive study of blame in the U.S. immigration system. I will argue that, for better and worse, blame systemically transfigures the politics, policies, and structures of immigration law. At ground level, blame pervades public discourse about migrants. The nation’s general antipathy toward “criminal aliens,” for instance, is based on perceptions of their blameworthiness.4 Even lawfully present migrants are blamed for stealing jobs, harming the environment, not assimilating, and more.5 Meanwhile, the “Dreamers” who were unlawfully brought to the country as children are frontrunners for amnesty, in large part, because they are blameless.6 1. See Angela M. Smith, Moral Blame and Moral Protest, in BLAME: ITS NATURE AND NORMS 29, 29 (D. Justin Coates & Neal A. Tognazzini eds., 2013); Lawrence M. Solan, Cognitive Foundations of the Impulse to Blame, 68 BROOK. L. REV. 1003, 1006–11 (2003) (offering a psychological explanation for the human impulse to blame); infra notes 42–46 and accompanying text. 2. See STEPHEN FINEMAN, THE BLAME BUSINESS: THE USES AND MISUSES OF ACCOUNTABILITY 8 (2015) (arguing that, without blame, moral codes and legal structures would be unsustainable). 3. See Mark Bovens et al., Public Accountability, in THE OXFORD HANDBOOK OF PUBLIC ACCOUNTABILITY 1, 15 (Mark Bovens et al. eds., 2014) (“As people seek approval . they will adjust their actions and decisions to societal norms and expectations of appropriate conduct.”); Christopher Hood, Blame Avoidance and Accountability: Positive, Negative, or Neutral?, in ACCOUNTABLE GOVERNANCE: PROBLEMS AND PROMISES 167, 170 (Melvin J. Dubnick & H. George Frederickson eds., 2011). 4. See Angélica Cházaro, Challenging the “Criminal Alien” Paradigm, 63 UCLA L. REV. 594, 599 (2016) (discussing “narratives that pit worthy (hardworking, family-oriented) immigrants against unworthy (criminal alien) immigrants”); Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 STAN. L. REV. 809, 811–12 (2007) (explaining that the United States immigration enforcement model uses criminality as a proxy for unbelonging and undesirability); Kevin R. Johnson, Ten Guiding Principles for Truly Comprehensive Immigration Reform: A Blueprint, 55 WAYNE L. REV. 1599, 1607 (2009) (“[T]he ‘criminal alien’ continues to be one of the most reviled characters of all of U.S. law, with many enemies and extremely few political friends (even among immigrant rights advocates).”); infra Part I.A. 5. See infra Part I.A (discussing a range of perceived social harms attributed to migrants). 6. See Matthew La Corte & Melanie Huettman, Congress Needs to Provide Dreamers with Permanent Protection, HILL (July 20, 2017, 1:20 PM), http://thehill.com/blogs/pundits- blog/civil-rights/342953-congress-needs-to-provide-dreamers-with-permanent-protection [https://perma.cc/UX8R-BLEW] (noting that “Dreamers are a blameless population and constitute productive members of society”). The innocence of children was also a key theme in Plyler v. Doe, a landmark decision that constitutionally protected undocumented children against state and local restrictions on K–12 education. 457 U.S. 202, 223–24 (1982); see also MICHAEL A. OLIVAS, NO UNDOCUMENTED CHILD LEFT BEHIND: PLYLER V. DOE AND THE EDUCATION OF UNDOCUMENTED SCHOOLCHILDREN 10–18 (2012) (explaining that the legal 128 FORDHAM LAW REVIEW [Vol. 87 Why migrants get blamed, and which ones, are important subjects of concern.7 Missing from the literature, however, is a theoretical model of how blame dynamics interface with immigration governance
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