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Unshackling the Due Process Rights of Asylum-Seekers

The focus of this Note is the government’s excessive use of GPS monitoring ankle bracelets on asylum-seekers through the Intensive Supervision Appearance Program (“ISAP”)—an alternative-to-detention program used by Immigration and Customs Enforcement to supervise certain noncitizens in removal proceedings. This Note explores how the ISAP enrollment process violates the due process rights of asylum-seekers and how these violations have facilitated the excessive use of ankle monitors on these individuals.

The first part of this Note explores ISAP’s initial purpose and the program’s failure to meet it. ISAP originated as a cost-saving, more humane option than detention for certain high-risk noncitizens already detained. Because detaining noncitizens is expensive, ISAP was intended to alleviate some of the financial burden of the detention system by releasing certain detainees from physical detention with GPS monitoring ankle bracelets and supervision. However, ISAP has shifted from its initial focus of removing noncitizens from detention to targeting low-risk asylum-seeking individuals who otherwise would not have been detained. As a result, ISAP has failed to decrease detention costs and failed its initial purpose as an alternative option for noncitizens already detained.

The second part of this Note argues that the excessive enrollment of asylum-seekers in ISAP GPS monitoring is facilitated through due process violations. In particular, this Note argues that the enrollment process violates asylum-seekers’ due process rights by contravening substantive due process, procedural due process, and fundamental fairness requirements. Finally, the Note proposes solutions to the constitutional deficiencies and advocates for returning ISAP to its initial purpose as a true alternative to detention.

Speech Across Borders

As both governments and tech companies increasingly seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to delink or delist material in a geographically segmented way, or are global delinking and takedown orders needed to protect the underlying interests at stake? These questions have been posed in two high-profile disputes before the European Court of Justice and in litigation that has pitted Canadian and U.S. courts against one another. Meanwhile, a new form of geographically-segmented speech regulation is emerging—pursuant to which speech is limited based on who is speaking and from where, as opposed to what is being said. 

This Article examines the ways in which norms regarding speech, privacy, and a range of other rights conflict across borders, and examines the implications for territorial sovereignty and prospects for democratic control. It details the power of private-sector players in adjudicating and resolving these conflicts, the ways in which governments are seeking to harness this power on a global scale, and the broader implications for individual rights. It offers a nuanced approach that identifies the multiple competing interests at stake—recognizing both the ways in which global takedowns or delisting can, at times, be a critical means of protecting key interests, and the risk of over-censorship and forced uniformity that can result. The Article also suggests new forms of decision making and accountability to reflect the shifting power structures and increasing porousness of borders online.

Federalism, Metropolitanism, and the Problem of States

The United States has long been an urban country, but it is fast becoming a metropolitan one. Population and economic activity are now concentrated in cities and their surrounding regions. The largest twenty of these city-regions account for almost fifty-two percent of total U.S. GDP. This “metropolitan revolution” represents a fundamental challenge to our current federalism. The old federalism assumed that capital and labor are fully mobile and that subnational governments—in this case, states—will engage in competitive efforts to attract desirable investment while the federal government will assume the bulk of redistributive spending. The new federalism rejects the notion that economic growth can be attributed to interstate competition or that only central governments can effectively engage in social welfare redistribution. As economic activity becomes concentrated in cities, those cities become capable of engaging in forms of regulation and redistribution that the standard model of fiscal federalism had deemed impossible. 

Our current state-based federalism, however, fails to appropriately align capabilities with responsibilities. Instead of empowering cities, states are increasingly seeking to defund, defang, and delegitimize them. The mismatch between the prevailing sites of productive economic activity and the location of regulation and redistribution has subverted the values conventionally associated with federalism. State power is being deployed to undermine accountability, limit experimentation, and prevent the effective exercise of local self-government. One current consequence of the gap between state and city power is increased political polarization. A future consequence may be an institutional restructuring that better reflects the new geography of production and population.

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