Class 7: Allocating Scarce Migration Rights: Quotas and Preferences
In this class we turn from constitutional law to focus on the regulatory structure that the United States uses to screen immigrants.
Immigration laws invent scarcity. In modern states, immigration laws restrict access to a nation’s territory, placing limits on who is permitted to enter the territory and who is forced to leave. (They also restrict access to the nation’s political community by regulating access to citizenship.) Thus, the right to reside in a state and work in its labor markets can be conceptualized as a valuable and scarce property right—a property right created by sovereign decisions to erect legal barriers to human mobility. For all immigration systems, a central question is how best to allocate these scarce rights.
How has the United States answered this question over time and today? As we have seen, the country has formally restricted immigration for over a century. Over the course of the twentieth century, the basic rules used to allocate these scarce migration rights have changed dramatically. And yet, we will see, today’s rules often still bear the imprimatur of those earliest immigration restrictions.
Reading:
Background on the immigration bureaucracy (skim 235-46)
Quotas and preferences (269-88)
Chisti et al, Fifty Years On, the 1965 Immigration and Nationality Act Continues to Reshape the United States (MPI)
As you read, consider the following questions:
American immigration law imposes both qualitative and quantitative restrictions on immigration—that is, restrictions on both the types and numbers of immigrants who can come. How do these two types of restriction interact? Is it possible to imagine a system of qualitative restrictions without quantitative ones? Is it possible to imagine a system of quantitative restrictions without qualitative ones?
Quotas limit the supply of visas. When the demand for those visas exceeds the quota-limited supply, how does American immigration law decide who gets a visa?
The INA separately imposes a limit on the number of people coming from any single country each year. What’s the point of this distinct type of numerical limit? And what’s the effect today of these per-country-caps?
Some parts of the INA’s system for awarding visas look more like a lottery. Other parts of the INA’s system either explicitly or implicitly deem some prospective migrants more “desirable” than others. If we were reforming the system of immigrant admissions, should we make it more or less lottery-like?
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