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7 J. Gender Race & Just. 201 (2003)
Decoupling Terrorist from Immigrant: An Enhanced Role for the Federal Courts Post 9/11

handle is hein.journals/jgrj7 and id is 207 raw text is: Decoupling Terrorist from Immigrant: An Enhanced Role for the Federal Courts Post 9/11 Victor C. Romero* 1. THE LINK BETWEEN FOREIGN AFFAIRS AND IMMIGRATION Immigration law is traditionally understood to encompass the rules that govern foreign citizens' entry into and departure from the United States, and may therefore be seen as an important domestic arm of the nation's foreign policy power. Immigration law is the exclusive purview of the federal governmentt While there are times when federal law might have unintended effects upon noncitizens,2 as a vehicle for effectuating foreign policy, immigration law can serve as an effective complement. For example, if the U.S. declares war on Iraq, it might make sense to exclude all Iraqi citizens from immigrating to the United States, not just for our own citizens' security, but for theirs as well. But what should our immigration laws say when the object of our foreign policy is not another nation, but a multinational guerrilla movement such as al- Qaeda? How does the U.S. balance its national security concerns against fair treatment of the individual noncitizens affected by its immigration laws? Just last year, Congress passed a law requiring greater scrutiny of visa applications . Professor of Law, Penn State, The Dickinson School of Law. B.A. Swarthmore; J.D., University of Southern California. E-mail: VCRI@PSU.EDU. This essay grows out of remarks I gave at the University of Iowa College of Law for The Journal of Gender, Race & Justice's Symposium, American Presence Abroad: U.S. Foreign Policy & Its Implications on Gender, Race & Justice; I thank Kevin Sul and Nettie Dennis for inviting me to participate. I would also like to thank Raquel Aldana-Pindell, Sameer Ashar, and Kevin Johnson for useful advice on an early draft of this piece; Barbara Brunner for her invaluable research assistance; and most especially, my wife, Corie, my children, Ryan and Julia, and my family in the Philippines for their constant love and support. All errors that remain are mine alone. 1. See, e.g., Edye v. Robertson, 112 U.S. 580 (1884) (upholding a federal statute regulating immigration as a constitutional exercise of the foreign commerce clause power). With the recent passage of federal legislation in the areas of welfare reform and crime that have arguably devolved some power over alienage to the states, a recent New York University symposium has asked whether such devolution of immigration power is desirable. See, e.g., Victor C. Romero, Devolution and Discrimination, 58 N.Y.U. ANN. SURV. AM. L. 377 (2002) (analyzing the effect of immigration devolution on people of color and gays and lesbians). 2. See, e.g., Victor C. Romero, Equal Protection Held Hostage: Ransoming the Constitutionality of the Hostage Taking Act, 91 Nw. U. L. REV. 573 (1997) (arguing that federal hostage kidnapping statute violates the equal protection rights of noncitizens when invoked in garden-variety domestic kidnapping cases).

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