Abstract

Excerpted From: Carrie Rosenbaum, Colorblind Immigration Racism, 72 UCLA Law Review Discourse 554 (2025) (147 Footnotes) (Full Document)

Critical Immigration Legal Theorists (CILT) use critical legal theory to explore, explain, contextualize, historicize, and critique U.S. immigration law and policy's contribution to racialized subordination. A critical legal approach necessarily illuminates the shortcomings of existing doctrine. As a CILT scholar, my focus has been on the role of immigration law and policy in manufacturing race and invisibilizing racialized harm, including by employing critical frameworks like settler colonialism and racial capitalism to bear on inquiries about equality principles in immigration. Critical analysis of racial and ethnic subordination in immigration law as a phenomenon or extension of administrative law is a newer component of this conversation. The CILT framework may help contextualize the Court's treatment of race as irrelevant to arbitrariness review in immigration policy. In this essay, I bring the CILT perspective to a confounding problem: the simultaneously express-yet-elusive way immigration law furthers racial subordination, including through racially differential impact yet is legally outside of the arbitrary and capricious framework, and often evades, redress through equal protection doctrine.

The U.S. Supreme Court rejected Fifth Amendment equal protection challenges to Trump 1.0 immigration policies in part because of plenary power. The Court set aside such policies, however, based on statutory Administrative Procedure Act challenges. Application of the arbitrary and capricious review standard partially and inadvertently interrupted racial harm as a collateral matter, particularly in DHS v. Regents and Trump v. Hawaii.

Courts have found differential impact, as opposed to civil rights or constitutional equal protection disparate impact, to be invalid as arbitrary and capricious. It could, but has not and likely will not, interpret arbitrariness review to invalidate racially differential impact or harm. Even if it did, the Court's plenary power doctrine would do what it has done for over a century: provide the Court an explicit or implicit reason to elevate state sovereignty and often misplaced claims of national security, and allow it to accept uncritically or unsee racial subordination.

In this essay I use the terms “racial harm” or “racial subordination” to identify the problem I seek to address. Use of these terms illustrates the difference between anti-racial subordination and the terminology used in equal protection and arbitrary and capricious jurisprudence: disparate impact, and discrimination, respectively. Both the “disparate impact” of equal protection and “differential impact” of arbitrariness review obscure the problems of colorblind racism and post-racialism. Rather than focus on the potential of arbitrariness review to explicitly do antiracist work--limiting the potential for meaningful change and legitimizing an illegitimate system-- this essay illustrates why arbitrary and capricious review could but will not help name or dismantle systemic racism in immigration law.

Part I provides a brief introduction to the Critical Race Theory (CRT) concepts of colorblindness and post-racial equal protection. Part II characterizes colorblindness and post-racial immigration equal protection, including contemporary examples of executive and agency perpetuation of a racial state through immigration law. Next, I provide an overview of arbitrary and capricious review and how it channels racially differential impact or agency action into statutory civil rights doctrine. I outline the administrative law doctrine of arbitrary and capricious review as a means of holding agencies (or the executive) accountable for the impact of their decisions, except decisions that create racial or ethnic differential impacts. Part III concludes with a discussion of the significance of arbitrary and capricious review's seeming inapplicability to racial subordination-sanctioning agency action. I reiterate the call of Kevin Johnson and many others to deepen our work in exposing the relationship between race and immigration law, to chart its terrain, and to contribute to meaningful social change.

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Critical Legal Scholar Natsu Taylor Saito described the United States as a colonial settler state, suggesting that “it follows that the primary purpose of this state's legal system would be to sustain the territorial claims and the relationships of privilege and subordination that ensure control of political, economic, and social institutions.” The administrative state is the legal infrastructure of those political, economic and social institutions. To “shore up the ideological justifications of settler society,” the political and socio-legal system's actions are “framed in terms of extending the 'American values' of freedom, democracy, and human rights to the world.” The administrative state's contradictions are a manifestation of settler colonialism and the racial subordination woven into its colorblind fabric.

Immigration law is always consequential, for purposes of national identity and the lived experiences of individuals and families around the world. It controls who is entitled to enter the United States, who is allowed to remain, and who may or must be deported. It also reinforces racialized subordination-- regardless of legal immigration status or formal legal membership as citizens-- though it has the potential to do the opposite.

The retrenchment we see today, and might teach today, should not be surprising. The protection of racialized immigrants' rights has never even been “episodic,” as Derrick Bell wrote of “[B]lack rights.” It has been nonexistent. Civil rights law and equal protection doctrine will not eliminate racial harm and subordination. Nor will administrative law. But if we can recognize that immigration law contributes to racial subordination--as does the imaginary ideological neutrality of administrative law--at the very least we can avoid legitimizing an illegitimate system. If there were ever a time for racial realism, it is now, in the face of a white nationalist autocratic legalism. The way in which we study and teach immigration law, administrative law, and constitutional law requires a critical lens not only to reckon with systemic injustice, but to envision a path toward dismantling it.

Because the Supreme Court is unwilling to recognize racial harm, doctrinal scholars (or those doing the important work of litigating for social justice) are limited to doctrinal paths and legal interpretations that will never come to fruition for the same reasons the racism and racial-caste problem exists in the first place. The same is equally true of the lack of potential for arbitrariness review. Suggesting that the Court treat racially differential impact as arbitrary and capricious is no more likely to address real racial harm than the displaced, aspirational hope that the Court would stop relying on plenary power to undermine rights claims by historically marginalized groups.

Senior Fellow, Santa Clara University School of Law.