Family Reunification and the Security State

Abstract

The right to family unity and the government’s power over immigration have had a shifting and complex relationship to one another. This essay traces the history of this relationship, exploring the major shifts and upheavals. It argues that family rights and the federal immigration power have had three very different relationships over time. In the first period, family rights were robust but extra-constitutional, a bedrock assumption of how American democracy operated. Regardless of whether the nation was in a mode of conquest and expansion (and therefore encouraged migration), or in a mode of restriction (actively circumscribing immigration), family relationships were assumed by courts, administrators, and citizens to be important enough that they could override the state’s interest in regulating its borders. In the second period, which began roughly with the quota system in the 1920s and continued roughly through the 1980s, courts shifted to conceiving family rights and the immigration power as conflicting with one another, and when pressed they usually found that the government’s interest in restricting immigration and protecting its borders outweighed the interests of individual families in reuniting. Most recently, as family law itself has become “constitutionalized,” a new understanding is emerging, whereby individual family members have a constitutionally protected interest in their relationships, and the state’s national security and border regulation interests are recognized still as significant but must be balanced with these interests.