Duke Law School
This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating at various levels within the administrative hierarchy have played a profound role in the cultivation of the substantive legal principles that those agencies administer. Searching for standards with which to interpret family-based citizenship and immigration statutes, twentieth-century administrators adapted family law principles in the process of developing new rules to govern who counted as a citizen. At times, these administrators operated with a significant degree of autonomy and authority, to a certain extent because of neglect rather than by design. At other times, these administrators shaped the law through legislative and adjudicative processes. These historical sources offer an instructive case study of administrative constitutionalism and of the fluid and dynamic relationship between “internal” an d “external” administrative law. They also illuminate the active role of administrators in developing a conception of family that determined, and in many cases continues to determine, the fates of would-be citizens and immigrants.
Bureaucracy As the Border: Administrative Law and the Citizen Family,
Duke Law Journal
Available at: https://scholarship.law.bu.edu/faculty_scholarship/212