updating brignoni-ponce - New York University School of Law

604 LEGISLATION AND PUBLIC POLICY [Vol. 11:567
Ponce decision, a future court will likely continue to find a very
strong public interest in enforcing the immigration laws and regulations
that were adopted by Congress or promulgated by the Executive.
1. Enforcing Immigration Laws and the Intersection with National
Security
Brignoni-Ponce is cited for stating that the public has an interest
in the proper enforcement of immigration laws. 233 However, the decision
did not discuss national security in the context of terrorism. The
current perception is that immigration is linked directly to national
security concerns. 234 This stems in large part from the September
11th terrorist attacks, which signaled that immigration policy could be
an “important tool in stopping or monitoring terrorists and
criminals.” 235 Indeed, the Administration has used its position of
power over immigration matters to implement measures that target immigrants
based on nationality. 236 This suggests that in the post-September
11th climate, the public interest in enforcing immigration laws
is higher than it was in 1975, when the Court decided Brignoni-Ponce.
2. Economic and Social Impact of Immigration
Unlike national security concerns, the Court in Brignoni-Ponce
did consider the economic and social impact of immigrants:
[T]he public interest demands effective measures to prevent the illegal
entry of aliens at the Mexican border. Estimates of the number
of illegal immigrants in the United States vary widely . . . .
Whatever the number, these aliens create significant economic and
social problems, competing with citizens and legal resident aliens
for jobs, and generating extra demand for social services. 237
That undocumented immigrants drain government resources continues
to be popular rhetoric, 238 even though undocumented immi-
233. See Blackie’s House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1221 (D.C. App.
1981).
234. For example, immigration enforcement is now handled by the Department of
Homeland Security instead of the Department of Justice. Also, the Border Patrol is
charged with protecting the nation’s borders both from terrorists and immigrants.
CBP Border Patrol Overview, supra note 113. R
235. DORIS MEISSNER ET AL., INDEPENDENT TASK FORCE ON IMMIGRATION AND
AMERICA’S FUTURE, IMMIGRATION AND AMERICA’S FUTURE: A NEW CHAPTER 15
(2006) [hereinafter IMMIGRATION AND AMERICA’S FUTURE] .
236. See supra notes 159–60 and accompanying text. The Court’s decision in Kore- R
matsu v. United States is still good law. 323 U.S. 214 (1944) (sanctioning the Executive’s
use of internment camps for Japanese Americans during World War II).
237. United States v. Brignoni-Ponce, 422 U.S. 873, 878–79 (1975).
238. See Huntington, supra note 69, at 30. R