By 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.