The Preempting of Equal Protection for Immigrants

Table of ContentsI. Introduction 79II. The Disconnect: A Suspect Classification with Deference 88A. Graham's Theory of Equality 881. The Equal Protection Dichotomy 98B. Federalism on the Rise 102III. Federalism's Historic Role in the State Alienage Cases 111A. Ultra Vires State Action 112B. Rights-Enhancing Immigration Policy 116C. Congressional Imprimatur for State Discrimination 121D. Dissimilarly Situated by Immigration Policy 124E. Preemption Instead 125IV. The Collapse of the Equal Protection Dichotomy? 129A. Congressionally Authorized Discrimination 131B. Structured Discrimination: "Aliens Only" Programs 134C. Alienage Classifications Recast 139D. Lawfully Present Without Equality 144V. Recalibrating Federalism's Proper Role in Discerning Migrants' Equal Protection Rights 150A. Federalism's Place 150B. Federalism's Disruptive Effect 156C. Fulfilling Equality's Promise 160VI. Conclusion 164I. IntroductionFor most migrants, the path of legal entry into the United States represents a golden door of opportunity.1 But legal entry does not guarantee equal treatment. Louisiana, for example, bars lawfully present migrants with valid visas from taking the bar exam2 and excludes lawfully present noncitizens classified as non-immigrants3 from working as licensed nurses.4 In Tennessee, certain lawfully present migrants are ineligible for drivers' licenses.5 Meanwhile, Connecticut, Colorado, Maine, and Washington, among other states, deny lawful permanent residents equivalent state-funded healthcare benefits provided to citizens.6 Courts have sanctioned this dissimilar treatment in the face of equal protection challenges, in spite of the United States Supreme Court's holding more than forty years ago in Graham v. Richardson7 that migrants who are lawfully present in the United States are a discrete and insular minority entitled to heightened judicial protection under the Fourteenth Amendment. For the migrants recently denied an equal share of their state's resources and economic opportunities, the Fourteenth Amendment's guarantee of equal treatment has proven hollow; the courts that have upheld laws imposing unequal burdens on lawfully present migrants have done so under deferential rational basis scrutiny.8This disconnect between Graham's promise of equality and the discrimination experienced by lawfully present noncitizens has escaped the critical analysis it deserves. In recent years, both the United States Supreme Court's jurisprudence addressed to immigrants' treatment by the states9 and an extensive scholarly literature have focused heavily on immigration federalism; that is, the extent to which the states and federal government share power to regulate migrants in ways traditionally unacknowledged.10 This emphasis in law and theory on the structural relationship between federal and state power to regulate immigrants has overshadowed an essential dialogue regarding immigrants' rights.11 More specifically, it has obscured the fact that for lawfully present migrants, a group formally entitled to protection as a suspect class12 and long assumed to enjoy community membership similar to citizens, class-based discrimination persists with the sanction of deferential courts. …