Both sides of the immigration debate agree our current system is dysfunctional, but they disagree over why and about the proper remedy. Some are disappointed by the marginalization of a significant population who only exist in the shadows of society, believing a combination of human rights and economic policy require offering this population full membership in our society. Others are equally disappointed that our society tolerates a significant population who only exist in the shadows, believing it erodes respect for the rule of law; full exclusion, not full inclusion, is the proper response under this view. Given these divergent views, it is perhaps unsurprising that we have arrived at a middle ground arrangement that is satisfactory to none.
Institutional design may bear some of the blame as well, however. For example, immigration policy would more closely reflect the “full membership” view if former President Bush had possessed unilateral authority to create a guest worker program. At the Law & Politics Workshop on Tuesday, Professor Cristina Rodríguez presented a paper she co-authored with Professor Adam Cox examining the division of authority between Congress and the President in immigration law and how it contributes to the dysfunction of our immigration system.
Over on Rick Hasen's Election Law Blog I've written a post about empirical legal scholarship and the future of the Voting Rights Act. I thought I'd cross-post the discussion here, but first I should provide a bit of background:
In 2006, Congress reauthorized Section 5 of the Voting Rights Act -- a core provision of the Act that singles out some jurisdictions' voting laws (mostly in the deep South) for intensive federal oversight. Section 5, which was initially a enacted as a temporary provision, was designed to provide a powerful institutional mechanism to prevent discrimination against minority voters. But unsurprisingly, the jurisdictions subject to Section 5 were extremely unhappy to be singled out. They challenged Section 5 when it was first enacted, and they've done so each time the temporary provision has been reauthorized. Shortly after Section 5 was reauthorized in 2006, its constitutionality was challenged in Northwest Austin Municipal Utility District Number One v. Mukasey ("NAMUDNO").