Race Matters: Immigration Law and Policy Scholarship, Law in the Ivory Tower, and the Legal Indifference of the Race Critique

After elimination of the discriminatory national origins quota system in 1965, the United States experienced a dramatic change in the demographics of immigration. Many more immigrants of color from developing nations have come to this country since this revolutionary reform. Over the next few decades, public concern with immigration ebbed and flowed. In the early 1990s, restrictionist sentiment peaked, culminating in changes to the immigration laws in 1996 characterized by one knowledgeable commentator as "the most radical reform of immigration law in decades - or perhaps ever." Many concerns contributed to the rise of this recent spate of restrictionism, including economic, social, cultural, and other societal anxieties. The fact that so many of today's immigrants are racially different from the Anglo norm in the United States also contributed to the calls for immigration reform. Although economic and related concerns with immigration are not legally suspect on their face, race is suspect in our constitutional scheme. Ultimately, immigration scholars face the daunting challenge of ensuring the removal of the taint of racial discrimination on the development of immigration law and policy. Ultimately, it may prove difficult, perhaps impossible, to separate the permissible from the invidious arguments for restrictionist action. Nonetheless, inquiry is warranted. This article offers some observations on the place of race in the body of immigration law scholarship and outlines some future possibilities for analysis. My comments are directed at two very different audiences. First, I hope to convince mainstream immigration scholars focused on legal doctrine to consider racial critiques of the law, including Critical Race Theory, critical Latina/o theory, and Asian American legal scholarship, in their analysis. Such consideration will lend power to their analysis and allow for a fuller understanding of immigration law. Second, I aim at persuading race scholars that immigration law doctrine must not be shunned but should be analyzed, explained, and dissembled through critical inquiry. This will not undermine, but in fact in all likelihood will bolster, their critique and allow them to unveil the racial privilege encoded on immigration law doctrine. Part I contends that mainstream immigration law scholarship, perhaps trapped by an ivory tower perspective about the law and its enforcement, fails to squarely confront the reality of the influence of race. For example, immersed in doctrine, the conventional wisdom does not seriously question the distinction between "aliens" and citizens, which is the bedrock of all analysis in the immigration law field. This Part further suggests that the addition of new theoretical lenses hold great promise in aiding our understanding. Part II outlines how minority scholars engaging in LatCrit (Critical Latina/o) Theory, Asian American, and Critical Race Theory legal scholarship have constructed novel analytical frameworks useful for studying the racial underpinnings and impacts of immigration law and, indeed, have commenced study in the area. In Part III, I analyze how the two separate legal discourses on immigration - ivory tower and race scholarship - are ships passing in the night. This can be explained in part by the "imperial scholar" phenomenon identified in civil rights scholarship, with a small cadre of elite, predominantly white scholars engaging each other, while marginalizing the work of outsiders, which is alive and well in immigration law scholarship. At the same time, race scholars hoping to effectively challenge the ivory tower wisdom must unravel the intricacies of legal doctrine and the racial discrimination that it obscures. Rather than retreat to the safety of conferences of minority scholars, they must confront the traditionalists in the conventional immigration venues and help commence a true race and immigration dialogue. Mainstreaming the race critique of immigration law will assist in prodding scholars in the field to confront the issues and offer a better understanding of the law and its enforcement.