PENNumbra—University of Pennsylvania Law Review

ARTICLE

by Adam B. Cox

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In his Article, Professor Cox questions the central principle of immigration law that rules for selecting immigrants are fundamentally different from rules that regulate the lives of immigrants outside the selection process. Cox argues that the distinction is false because every rule of immigration necessarily effects both selection and regulation. Furthermore, even if rules could effectively be categorized, there is no moral or constitutional significance to the distinction. Rather, they are simply two alternative mechanisms that a state may use to achieve a particular end. Under this new understanding, Cox explores the implications to immigration law and institutional design.

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RESPONSES

by Clare Huntington

Professor Huntington, in her Response, A House Still Divided, is sympathetic to Cox’s desire to discard the traditional dichotomy between rules that govern the selection and regulation of immigrants. She identifies, however, two points of resistance to destabilizing the categories. Both because “there is some difference between selection and regulation,” and, more importantly, there is “political utility” in distinguishing between the two, Huntington argues that academics “need to be forthright about the power the distinction retains.”

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by Peter H. Schuck

Professor Schuck, in his Response, Immigration Law’s Organizing Principles: A Response, agrees that there is overlap in the incentives and effects of selection rules and regulation rules, but contends that Cox goes too far to claim “essential equivalence of the two.” Rather, he argues the real question is “whether, despite the overlap, enough difference between the two remains to justify maintaining some distinction in the legal rules that apply to them.” Unfortunately, despite Cox’s “valuable contribution” to the immigration law scholarship, by claiming equivalence of the two types of rules, Cox does not fully address, “much less answer” this question.

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AUTHOR'S RESPONSE

by Adam B. Cox

In Making Sense of Immigration Law, Professor Cox continues his argument from Immigration Law's Organizing Principles that the distinction between rules that select migrants and rules that regulate migrants "serves to obfuscate rather than illuminate the important normative principles at stake when we choose amongst competing immigration laws and policies." In his rebuttal to Professors Schuck's and Huntington's responses, Cox contends that in many ways both scholars' arguments "embody some of the same conceptual mistakes that . . . infect the field as a whole." Cox first addresses what he believes is a "misapprehen[sion]" of the argument from Organizing Principles: Schuck's contention that the article wrongly argues for "essential equivalence" between the concepts of "selection" and "regulation." After clarifying the structure of his argument, Cox turns to Huntington's claim that there is "some" conceptual distinction between the two types of rules. Cox argues that the distinction offered by Huntington—"between (a) admission and deportation rules and (b) other rules that regulate noncitizens"—can neither be understood as widely shared today nor a viable "dividing criterion" around which agreement could be found.

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