CONTESTING IMMIGRATION POLICY IN COURT: LEGAL ACTIVISM AND ITS RADIATING EFFECTS IN THE UNITED STATES AND FRANCE, by Leila Kawar. New York: Cambridge University Press, 2015. 210pp. Cloth $113.00. ISBN: 9781107071117. Paper $32.99. ISBN: 9781107415119.
Reviewed by Michael T. Light, Department of Sociology, Purdue University. Email: mlight@purdue.edu
Nearly 3 million people were deported from the United States Between 2008 and 2015, roughly 270,000 more than over the entire last century.1 In recent decades, the incarceration of foreigners across Western societies has increased substantially as well. As of 2014, there were roughly 68,000 noncitizen incarcerated in U.S. state and federal prisons (Carson 2015), and almost 115,000 foreigners imprisoned throughout the European Union (Aebi et al. 2015). This is the backdrop against which Leila Kawar engages a very timely and salient question: what difference does law make in immigration policymaking?
As Professor Kawar points out, she is not the first to address this question. A considerable amount research has investigated the efficacy of shaping migration policy through legal interventions. That is, can the courts be a useful venue for constraining restrictionist immigration policies? In Professor Kawar’s assessment, the conventional wisdom resulting from this body of work is that the law has little impact on immigration policy matters (p. 153). In CONTESTING IMMIGRATION POLICY IN COURT, Professor Kawar makes a compelling and provocative argument for why this view is premature, or at the very least, incomplete. Her main thesis is that prior research in this area has focused too narrowly on official case dispositions and the degree to which these legal rules limit immigration policies. As a result, “we neglect to consider how the process of contesting immigration policy in court may constitute the very terms of immigration politics” (p. 10). This book seeks to address this oversight.
Using a constructionist sociolegal approach, Professor Kawar aims to broaden the purview of law and immigration research by “conceptualizing court-centered contestation of immigration policy as a culturally productive activity with potentially important radiating effects” (p. 10). Professor Kawar argues that high-profile legal contests have transformed the political debates and policy making surrounding immigration by injecting distinctly juridical forms into the taken-for-granted concepts and categories that have become public currency in the politics of immigration. Put differently, activity in the courts has reframed the political dialogue. In this regard, legal contestation has a far more expansive, or radiating effect, than has been conceptualized previously. Drawing on seven years of exhaustive archival research, analysis of legal documents and media coverage, and over 60 in-depth interviews with immigrant rights litigators in the United States and France, Chapters 2-5 explicate this central thesis.
Chapter 2 details the emergence of immigrant rights legal activism in the U.S. and France, defined as “a conscious effort to use litigation to proactively assert or develop rights for noncitizens in the domain of immigration policy making” (p. 2). This historical context subsequently informs the divergent pathways legal contestation of immigration policy took in these countries, which is the subject of Chapter 3. Focusing on the high-profile cases that brought immigrant rights litigation to the fore of national politics, this chapter highlights the distinct jurisprudential regimes that emerged in the United States and France. In the U.S., the legal arguments crafted around immigration were rooted in civil rights-based immigration reform. That is, immigrants should be viewed under the law as “a minority within a minority” that are deserving of special judicial protection. The legal arguments constructed in France, however, relied more on framing immigrant rights as a form of good governance by [*153] extending social protection norms to immigrant workers and avoiding autocratic tendencies.
Chapter 4 describes the different ways immigrant rights legal activism came to be institutionalized in the U.S. and France. Within the U.S., immigrant rights litigators drew heavily from the organizational model of public interest law, finding the most support from the private legal sector. In France, support from the leaders of the legal profession for immigrant rights activism was more indirect, and legal activists relied more on informal relationships among small circles of committed jurists.
Perhaps the largest contributions to political-legal scholars lie in Chapters 5 and 6, where Professor Kawar convincingly demonstrates in both countries how routine legal contestation has made the politics of law an integral facet of immigration politics more generally, albeit in somewhat different ways. In the U.S., the heavy reliance on repeated class action lawsuits on behalf of immigrants has made the courts a central figure in any immigration policy discussion. In France, routinized judicial engagement with immigration policy has required sustained dialogue between the Conseil d’Etat (France’s highest administrative jurisdiction) and policy officials during the implementation process. Taken together, these chapters persuasively lay the foundation for the central argument made in the conclusion; that legal activity need not be considered solely by how well it constrains policy making. Rather, the power of law can be conceptualized “in terms of its ability to frame issues and stage political interactions” (pp. 158-59). Using this metric, Professor Kawar suggests that immigrant rights legal activism has had a significant effect on the politics of immigration in the United States and France. In this regard, the book not only widens the sociolegal lens of research on law and immigration, but offers a counterpoint to the pessimistic assessments of the ability of the law to influence immigration policy.
It is this latter point, however, where I think Professor Kawar perhaps paints with too broad a brush. The argument she appears to engage is that “conventional wisdom” suggests law has little impact on immigration policy. However, this view is too simplistic to capture the diversity of existing research on the effectiveness of courts and court rules in bringing about substantive change in immigration matters. Perhaps this is due to the location sites for this book. In Germany, for example, Joppke (1999, p. 75) suggests “the legal process is key to explaining the expansiveness and inclusiveness towards foreigners…the political process only caught up with positions that have long been established and determined by the legal process.” Similar arguments have been made in reference to the rights granted from EU citizenship. As Joppke notes, “worthy to be labeled ‘postnational’ if there ever was justification of the term, EU citizenship in its presently expansive form is entirely the product of court rules” (2010, p. 164). These points do not detract from the general arguments made throughout the book, but they do offer an alternative view of the premise on which this study is based. What this calls for is more research to follow Professor Kawar’s international comparative approach to understand the scope and efficacy of court rules and litigation to influence immigration policy. Thus, like any good study, this book sets the stage for several promising lines of future research.
In the end, Professor Kawar offers a fresh perspective to our understanding of law in relation to immigration policy. This book is essential reading for social scientists and legal scholars broadly interested in the complex interplay between immigration politics, policy-making, and the law. As debates about immigration policy and the law continue within scholarly and political arenas, CONTESTING IMMIGRATION POLICY IN COURT will no doubt feature prominently within these discussions.
NOTES:
1 The official term for deportations are removals. For data regarding removal in 2008-2015 see
FY 2015 ICE Immigration Removals, US Immigration and Customs Enforcement. For data regarding 1900-2000 see Yearbook of [*154] Immigration Statistics: 2007 Enforcement, US Homeland Security.
REFERENCES:
Aebi, M. F., Tiago, M. M. & Burkhardt, C. (2015). SPACE I –COUNCIL OF EUROPE
ANNUAL PENAL STATISTICS: PRISON POPULATIONS. Survey 2014. Strasbourg: Council
of Europe.
Carson, Ann E. 2015. PRISONERS IN 2014. Bureau of Justice Statistics. Washington DC.
Joppke, Christian. 1999. IMMIGRATION AND THE NATION-STATE: THE UNITED
STATES, GERMANY, AND GREAT BRITAIN. New York: Oxford University Press.
Joppke, Christian. 2010. CITIZENSHIP AND IMMIGRATION. Cambridge: Polity Press.
© Copyright 2016 by author, Michael T. Light.
