Un)Equal Immigration Protection

This article will contribute to immigration equal protection jurisprudential discussions by highlighting the way in which the plenary power in immigration equal protection cases creates a barrier parallel to the intent doctrine—both prohibit curtailment of government action resulting in racialized harm. The scant recognition of the double duty done by plenary power and the intent doctrine reflects the banality of what may appear as a mere redundancy at first glance. However, the insidiousness of the double-barrier all but ensures that equal protection challenges to facially race-neutral immigration laws with disparate impact will fail. Plenary power is effectively duplicative of the intent doctrine because the intent doctrine already results in great deference to lawmakers. Disproportionate impact is insufficient alone to invalidate a facially nondiscriminatory law on equal protection grounds. In decision after decision, the Court contorts itself to find some other nondiscriminatory purpose to avoid a finding of discriminatory intent. Even without plenary power, the intent doctrine would need to be reimagined for immigration equal protection claims to receive consideration indicative of equality principles. Interestingly, the Court has applied equal protection guarantees within civil alienage laws, which pertain to noncitizens within the United States. This was done while denying the relevance of equal protection within immigration law, which dictates who can become and remain a member of the legal and political community within the United States. At the same time that equal protection has been less than protective in immigration law, immigration regulation has been a prime factor in the making (“social construction”) of race through national origin quotas, racial restrictions on naturalization, exploitive policies influenced by labor needs and capitalism, like the Bracero Program, and mass deportation programs targeting or disproportionately burdening particular ethnic groups or persons of particular national origins, like the 1930s era repatriation of Mexican nationals or Operation Wetback in 1954. More recently, other race-neutral immigration policies hide discrimination in colorblind or race-neutral terms, yet reflect President Trump’s demonization of racialized immigrants, policies like immigration bans targeting persons from Muslim majority countries, migrant detention centers on the border imprisoning Latinx migrants, and attempted cancellation of programs like Temporary Protected Status (TPS) and Deferred Action for Childhood Arrivals (DACA). Donald Trump’s “Colorblind Repatriation of Latinx Noncitizens,” as described by Kevin Johnson, may result in repatriation of more such noncitizens than any prior administration using national origin as a race-neutral and colorblind proxy to inflict literal and metaphoric violence on Latinx families in the United States. However, when noncitizens raise equal protection challenges to facially race-neutral immigration laws, their claims fail. Why does immigration law exert such a stronghold on the making of race, and why does it so fiercely resist curtailment? Immigration equal protection challenges seem to face an impenetrable wall comprised of immigration plenary power and the equal protection intent doctrine. The plenary power doctrine stands for the proposition that the Court shows great deference to Congress and the Executive branch because of their authority over immigration law resulting in a dilution of constitutional protections for noncitizens, at the expense of equal protection and other constitutional rights. The Court’s recent rejection of the equal protection claim in DHS v. Regents represents the interplay of plenary power and equal protection intent doctrine as overlapping and mutually reinforcing barriers to the curtailment of racial discrimination in immigration law. Because disparate impact equal protection claims require a showing of discriminatory intent, one might expect immigration law’s longstanding racist history to bolster an equal protection claim. That same discriminatory history could plausibly undermine the validity of plenary power. However, neither has been true. Accordingly, the first section of this article will analyze relevant aspects of the Court’s shaping of the equal protection intent doctrine outside of the immigration setting. The second section will examine the role of plenary power in immigration equal protection jurisprudence, and the third section will consider the Supreme Court’s equal protection ruling in DHS v. Regents and situate it within immigration equal protection jurisprudence.