Copyright (c) 2010 All rights reserved. http://works.bepress.com/anil_kalhan Recent documents in Anil Kalhan en-us Tue, 09 Mar 2010 14:08:30 PST 3600 http://works.bepress.com/anil_kalhan/9 http://works.bepress.com/anil_kalhan/9 Wed, 03 Feb 2010 17:19:51 PST This essay explores the experiences with emergency and emergency-like powers in postcolonial Pakistan and India to illustrate the ways in which constitutional and extraconstitutional states of exception can converge in their application. The experiences in Pakistan with what I term its "extraconstitution" - illustrated most recently by the state of "emergency" declared by Pervez Musharraf in 2007 - demonstrate, perhaps unsurprisingly, that extraconstitutional assertions of emergency powers can provide a ready template for authoritarian rulers to usurp power, violate fundamental rights, and transform the constitutional landscape in the guise of addressing a crisis. At the same time, the authoritarianism in such moments is not entirely "lawless," and the experiences of both Pakistan and India suggest that the assertion of constitutionally-authorized emergency powers - as perhaps most notably exercised by Indira Gandhi in India from 1975-77 - can be as difficult to constrain as extraconstitutional regimes of the sort seen in Pakistan, and can lead to excesses and lasting transformations that are at least as severe.While constitutionality is not necessarily irrelevant in constraining or legitimising emergency powers regardless of context, in postcolonial South Asia the significance of constitutionality has had limits. Owing in part to the persistence in both countries of the shared discourse of emergency powers inherited from the British colonial state, the antidemocratic tendencies inherent in the use of emergency powers have continued to manifest themselves in the laws and institutions of both India and Pakistan, albeit in evidently and importantly different ways in each country. Whether those tendencies have operated through constitutional or extraconstitutional means, the basic results have in some respects been strikingly similar. Anil Kalhan http://works.bepress.com/anil_kalhan/8 http://works.bepress.com/anil_kalhan/8 Thu, 16 Oct 2008 10:30:43 PDT Anil Kalhan http://works.bepress.com/anil_kalhan/7 http://works.bepress.com/anil_kalhan/7 Thu, 16 Oct 2008 10:29:59 PDT Anil Kalhan http://works.bepress.com/anil_kalhan/6 http://works.bepress.com/anil_kalhan/6 Thu, 16 Oct 2008 10:28:53 PDT Anil Kalhan http://works.bepress.com/anil_kalhan/5 http://works.bepress.com/anil_kalhan/5 Thu, 16 Oct 2008 10:27:54 PDT Anil Kalhan http://works.bepress.com/anil_kalhan/4 http://works.bepress.com/anil_kalhan/4 Thu, 16 Oct 2008 10:26:50 PDT Anil Kalhan http://works.bepress.com/anil_kalhan/3 http://works.bepress.com/anil_kalhan/3 Thu, 16 Oct 2008 10:22:41 PDT In recent years, the U.S. federal government has aggressively sought to involve state and local government institutions more extensively and directly in the day-to-day regulation of immigration status and the interior enforcement of federal immigration laws. In this chapter, I discuss two sets of these initiatives - the efforts to involve state and local police in routine immigration enforcement and the development of federal issuance and eligibility standards for state driver's licenses - in order to explore the ways in which these developments may challenge conventional assumptions about the relationships between state and local governments and their non-U.S. citizen residents. Traditionally, U.S. immigration law has been understood to constrain state and local involvement in the regulation of immigration in part based on the premise that non-U.S. citizens are more likely to face hostility, discrimination, or disadvantage at the hands of state or local institutions than at the hands of the federal government. Certainly, it remains the case that non-U.S. citizens may often be vulnerable to hostility or discrimination by state and local government actors, as a number of recent examples make clear. However, as the federal government itself has become more aggressive in its regulation of immigration status, non-U.S. citizens are seeking and, in some instances, finding greater receptiveness for the protection of rights and liberties in state capitals and local city halls, rather than in Washington. In this context, the traditional assumptions concerning immigration, citizenship, and federalism may be incomplete. Anil Kalhan http://works.bepress.com/anil_kalhan/2 http://works.bepress.com/anil_kalhan/2 Thu, 16 Oct 2008 10:18:19 PDT This Article proposes privacy as a descriptive and normative framework to analyze the constellation of recent initiatives to expand interior enforcement of federal immigration laws. By expanding the circumstances in which individuals are expected to demonstrate their lawful presence in the United States, these various initiatives seek to transform the significance of immigration and citizenship status in day-to-day life from something largely invisible and irrelevant to something visible and salient in a variety of settings. This transformation, however, carries underappreciated social costs. Building upon scholarship theorizing privacy as protecting a set of social or structural interests, and using the U.S. Supreme Court's decision in Katz v. United States as a conceptual starting point, the Article argues that recognizing and protecting immigration and citizenship status privacy in certain contexts serves valuable social purposes. While the Fourth Amendment itself may ultimately establish a weak constraint against interior enforcement, in other contexts courts and state and local governments have increasingly recognized and protected privacy interests in immigration and citizenship status in precisely these structural terms. Although these responses are an incomplete solution to the privacy-related harms that may arise from expanded interior enforcement, they contribute to a public conversation that may recognize more directly the social value of preserving zones in society in which status remains invisible, irrelevant, and private. Anil Kalhan http://works.bepress.com/anil_kalhan/1 http://works.bepress.com/anil_kalhan/1 Thu, 16 Oct 2008 10:12:16 PDT Anil Kalhan