Expanding the Circle of Membership by Reconstructing the “Alien”: Lessons From Social Psychology and the “Promise Enforcement” Cases

Recent legal scholarship suggests that the Supreme Court’s decisions on immigrants’ rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens’ rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda’s challenge. Borrowing from recent research in social psychology, this Article contends that “We the People” can better inform our ideas of polity membership by resisting existing invidious stereotypes of the noncitizen as the “alien” and by embracing instead the notion of equal personhood. This Article also urges citizens to demand the repeal of the “court-stripping” provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. These provisions encourage the federal government to renege on promises not to deport noncitizen defendants in exchange for assistance in criminal prosecutions. Without fear of judicial review, the government is free to enter into cooperation agreements with noncitizen defendants and then breach those agreements with impunity so as to achieve its dual goals of criminal prosecution and deportation. The federal government should not be allowed to break its promises, especially when the goal of the agreement with the noncitizen is to facilitate a criminal prosecution, not to impact immigration law.