“President Obama’s policy of generally treating same-sex beneficiary petitions as it does opposite-sex ones is a model of presidential leadership on what would otherwise be a controversial issue.”
I have long been interested in how law affects people on the ground and, in particular, I’ve enjoyed puzzling over how to reclaim the promises of our modern, post-Brown equality jurisprudence within the context of immigrant rights. A few years ago, in Immigrant Education and the Promise of Integrative Egalitarianism, 2011 Mich. St. L. Rev. 275, I started exploring the theme of “integrative egalitarianism,” the idea that “governmental programs designed to overcome arbitrary inequalities stemming from accidents of birth are a worthwhile investment in society’s future.” I’ve returned to that theme twice recently, in a recently published essay titled Our Illegal Founders, and in a forthcoming one titled, Reading (Into) Windsor. I describe the pieces in greater detail below, and welcome readers’ feedback:
Our Illegal Founders, 16 Harv. Latino L. Rev. 147 (Spring 2013). This Essay briefly mines America’s history from before the Founding through the mid-20th century to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers or Asian overstays, but also by prominent colonists like George Washington and Ethan Allen, giving the lie to the claim that upholding border laws should always be sacrosanct. Lessons from the Founding suggest that the United States should remove the stigma that attends undocumented border crossings just as it has excused the transgressions of patriots like Washington and Allen by choosing policies that favor integration over exclusion, consistent with the promises of our modern equality jurisprudence.
Reading (Into) Windsor: Presidential Leadership, Marriage Equality, and Immigration Policy, 23 S. Cal. Rev. L. & Soc. Just. __ (forthcoming, Spring 2014). Following the demise of the federal Defense of Marriage Act in United States v. Windsor, the Obama Administration implemented a bold, equality-based reading of Windsor as it applies to immigration law, treating bi-national same-sex couples the same as opposite-sex ones. This Essay argues that the President’s interpretation is both constitutionally and politically sound: Constitutionally, because it comports with the executive’s power in enforcing immigration law as well as guaranteeing equal protection under the law; politically, because it reflects the current, increasingly tolerant view of marriage equality and its trajectory toward national acceptance. Though still in its infancy, President Obama’s policy of generally treating same-sex beneficiary petitions as it does opposite-sex ones is a model of presidential leadership on what would otherwise be a controversial issue. While some might be concerned about the executive branch overstepping its bounds by creating a de facto national immigration policy in the absence of specific congressional fiat and in the midst of a robust national debate regarding marriage equality, President Obama’s directive embraces the promise of integrative egalitarianism, the hallmark of our post-Brown equality jurisprudence, by setting forth an inclusive, uniform federal policy that enhances, rather than diminishes, equality for all.