New York University Public Law and Legal Theory Working Papers

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Columbia Law Review Sidebar, Vol. 110, pp. 1-11, February 2010


Two significant conceptual errors frame the public debate concerning labor migration and the related phenomenon of illegal immigration. First, the immigration debate occurs largely within a domestic political framework, and the assumption that the United States can address immigration issues, particularly illegal immigration, through the perfection of domestic enforcement mechanisms pervades the discourse. But migration is inherently international, and its management requires engagement with other governments and with social facts beyond U.S. control. Second, the rhetorical emphasis placed on “fixing” our broken regime reflects a conception of immigration as a problem to be solved. But migration is a cross-border phenomenon produced by structural and historical factors that will only evolve, rather than disappear, and it therefore requires transnational management, rather than a one-time comprehensive legislative solution. In their contributions to the policy debate, scholars increasingly have emphasized the importance of addressing labor and illegal migration through bilateral and transnational frameworks – through accords that would recognize the interdependence of the United States and Mexico and engage our neighbor to the south directly. In this Essay, I seek to contribute to this strand of commentary by focusing on the actual mechanisms of transnationalism and the avenues they open up for advancing a meaningful bilateralism. I demonstrate that the cross-border administrative law space created by these mechanisms is occupied not just by international entities, but also by entanglements between the domestic institutions of different countries. I emphasize the importance of identifying and then building the mechanisms of bilateralism, or the cross-border institutional capacities needed for managing migration in a manner that promotes burden-sharing, or that ensures that both sides of the bilateral relationship reap benefits and bear costs, in rough proportion.

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