Changing the US justice system’s views on immigration: Sri Srinivasan a harbinger?

Sri Srinivasan

The US Senate recently approved (97-0) US deputy solicitor general Sri Srinivasan’s nomination to fill an empty seat on the US Court of Appeals for the District of Columbia. While this sounds dry, it’s actually a pretty big deal: Srinivasan is generally regarded as a lock for the US Supreme Court. Srinivasan himself is an immigrant: he was born in Chandigarh, India, and is the first judge in history of South Asian descent to sit on any US federal court of appeal.

In his response to the Senate Judiciary Committee’s questionnaire, Srinivasan provided some examples of his pro bono legal work (question 25). The very first example listed was his work representing the petitioner at the Supreme Court in Carachuri-Rosendo v. Holder. Although we’ve not discussed this particular case by name on the Open Borders blog yet, it has come up before, when I blogged about New York Times columnist Linda Greenhouse’s shocking realisation at the immorality of contemporary US immigration law. Specifically, this was the case where US Supreme Court Justice Ruth Bader-Ginsburg argued with the lawyer representing the federal government (emphasis added):

Here we are talking about two crimes. One is a small amount of marijuana. He gets 20 days in jail. The other is a pill that I never heard of, a Xan-something, and he gets what, 10 days in jail for that. If you could just present this scenario to an intelligent person who didn’t go to law school, that you are going to not only remove him from this country, but say ‘Never, ever darken our doors again’ because of one marijuana cigarette and one Xan-something pill — it, it just seems to me that if there is a way of reading the statute that would not lead to that absurd result, you would want to read the statute….

Now seems a fitting time to mention the resolution of this case: the Supreme Court unanimously (9-0) rejected the US government’s argument and reversed the Court of Appeal ruling that would have deported Srinivasan’s client, Carachuri-Rosendo. Lengthy imprisonment or death are about the only sentences I can imagine that would be worse than the one Carachuri-Rosendo was facing. The Jewish Talmud says, “whoever saves a life, it is considered as if he saved an entire world.” Srinivasan and his team might not have saved Carachuri-Rosendo’s life, but they sure as heck came close. This was a worthy case to put front and centre in Srinivasan’s pro bono track record.

In concluding her reflections on immigration law, Greenhouse suggested:

[The Congress that takes a hard line with people who smoke a single joint and take  a single unprescribed pill] would be the same Congress that spent months tied up in knots over how conclusively to prohibit insurance coverage for abortion under the new health care legislation, ostensibly out of concern for the unborn. Maybe someday, members of Congress will display the same concern for those who happened to have been born, but on the wrong side of the border. Maybe, just maybe, the Supreme Court will show the way.

Unfortunately to date, the US judicial system has been extremely deferential to government coercion in the area of immigration, demonstrating an incredible refusal to restrict the government’s reach in this area in almost any way. The doctrine of consular nonreviewability, which is literally rooted in racism, is one good example. Even when there are legitimate interests of US citizens that would be protected by judicial review of the government’s claims to power in restricting immigration, the courts have been reticent to take action.

It is unlikely that Srinivasan will be the judge who finally undermines the immoral foundations of US immigration law — though I think given his personal background and his close work with the Carachuri-Rosendo case, it also seems unlikely he is totally unaware of the arbitrary and senseless nature of US immigration laws. But the 9-0 ruling in Carachuri-Rosendo, as feeble as it is, gives one some hope. I am not a Whig in the historical sense (i.e. I do not believe the march of history is one that is ever onward and upward towards a better future), but I see some sense in the notion of the “expanding circle” of the people whom we regard as our moral equals. Some day, I hope, the US courts will see reason and justice and overthrow the arbitrary, tyrannical reach of modern US immigration laws. Perhaps Srinivasan’s appointment, to the federal courts may be just the start of something better.

John Lee is an administrator of the Open Borders website. Liberal immigration laws are a personal passion for him. See all blog posts by John.


2 thoughts on “Changing the US justice system’s views on immigration: Sri Srinivasan a harbinger?”

  1. This writer says, “US judicial system has been extremely deferential to government coercion in the area of immigration.” Why is that? Should we assume that judges have a blind spot when it comes to immigration? Are they actually “deferential”? Perhaps they instead are genuinely convinced that the government may use coercion, and that it’s not their job to determine public policy.

    The “refusal to restrict the government’s reach” is “incredible” to the writer of this blog entry, but maybe not to the people in the judicial system. It would be interesting to hear from those people.

    Even if the doctrine of consular nonreviewability had racist origins, that’s not relevant. The doctrine should be evaluated on its current benefits versus drawbacks.

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