American immigration law is organized around a seductive idea: rules for selecting immigrants are fundamentally different from rules that regulate immigrants outside the selection context. At bottom, the idea flows from the intuition that rules governing who gets to live in a state are, and should be, legally and morally distinct from other sorts of legal rules. This intuition has long led courts to conclude that the government has considerable leeway to adopt whatever selection rules it sees fit. For example, rules that restrict the admission of immigrants on the basis of their speech are given great deference, but attempts to restrict the First Amendment rights of resident noncitizens would be subject to strict scrutiny. Outside the constitutional context, the distinction between selection rules and other rules frames debates about the legality and legitimacy of myriad laws that affect immigrants, including guest worker programs, the criminal deportation system, and recent proposals for comprehensive immigration reform.

This central distinction is misguided. For over a century, every effort by courts and scholars to draw a conceptual distinction between immigrant-selecting rules and rules that affect immigrants’ behavior outside the selection context (immigrant-regulating rules) has been an utter failure. These efforts have inevitably led to radical disagreement about how to classify any given rule. The reason is not surprising: legal rules cannot be classified as concerning either selection or regulation because every rule concerns both. Every rule that imposes duties on noncitizens imposes both selection pressure, potentially influencing noncitizens’ decisions about whether to enter or depart the United States, and regulatory pressure, potentially influencing the way in which resident noncitizens live. At a very basic level, these are the twin consequences of any territorially bounded rule that imposes a duty on a person. Despite the fact that the distinction between selecting and regulating rules is part of the conceptual bedrock of immigration law, it is a foundation without substance.