The Preempting of Equal Protection for Immigrants?

Washington and Lee Law Review Volume 73 | Issue 1 Article 4 Winter 1-1-2016 The Preempting of Equal Protection for Immigrants? Jenny-Brooke Condon Seton Hall University Law School Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Immigration Law Commons Recommended Citation Jenny-Brooke Condon, The Preempting of Equal Protection for Immigrants?, 73 Wash. & Lee L. Rev. 77 (2016), https://scholarlycommons.law.wlu.edu/wlulr/vol73/iss1/4 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . The Preempting of Equal Protection for Immigrants? Jenny-Brooke Condon * Abstract Recent debates about immigration have focused overwhelmingly on unauthorized migration and the respective roles of the federal and state governments in enforcing immigration law. But that emphasis in law and theory has obscured a critical civil rights question of our time: what measure of equality is due to those with the opportunity to abide by the rules of entry, who are now lawfully present within the United States? Although the United States Supreme Court recognized decades ago that lawfully present migrants are a discrete and insular minority entitled to heightened judicial protection under the Equal Protection Clause of the Fourteenth Amendment, in recent years, a body of little-analyzed federal and state court decisions has eroded that longstanding precedent, elevating deference to the federal government’s power to set immigration policy over a previously established constitutional commitment to immigrants’ equal treatment by the states. This Article critically explores this development and argues that although federalism may legitimately serve as a lens through which to gauge arbitrary discrimination, federalism principles should not stealthily serve as a preemption-like doctrine beneath the surface in equal * Associate Professor of Law, Seton Hall University School of Law. . I thank the participants in the 2015 Emerging Immigration Scholars Conference hosted by the University of Miami School of Law, the 2014 Clinical Writers Workshop at New York University School of Law, the 2014 University of Massachusetts School of Law Junior Faculty Scholarship Exchange, and to my Seton Hall Law School colleagues for their helpful feedback at a faculty scholarship workshop. Special thanks to Farrin Anello, Sameer Ashar, Edward Hartnett, Thomas Healy, César Cuauhtémoc García Hernández, Erin Delaney, Lori Nessel, Daniel Kanstroom, and Jon Romberg for helpful comments and questions. 77 78 73 WASH. & LEE L. REV. 77 (2016) protection cases. To reign in federalism’s potentially disruptive impact on immigrants’ rights, this Article argues that courts should consider federalism principles only as an interpretative tool in equal protection cases involving migrants and recommit to immigrants’ long settled right to equal treatment by the states. Table of Contents I. Introduction ...................................................................... 79 II. The Disconnect: A Suspect Classification with Deference .......................................................................... 88 A. Graham’s Theory of Equality ..................................... 88 1. The Equal Protection Dichotomy.......................... 98 B. Federalism on the Rise ..............................................102 III. Federalism’s Historic Role in the State Alienage Cases ................................................................................111 A. Ultra Vires State Action ............................................112 B. Rights-Enhancing Immigration Policy......................116 C. Congressional Imprimatur for State Discrimination ...........................................................121 D. Dissimilarly Situated by Immigration Policy ...........124 E. Preemption Instead ...................................................125 IV. The Collapse of the Equal Protection Dichotomy? ..........129 A. Congressionally Authorized Discrimination .............131 B. Structured Discrimination: “Aliens Only” Programs....................................................................134 C. Alienage Classifications Recast.................................139 D. Lawfully Present Without Equality ..........................144 V. Recalibrating Federalism’s Proper Role in Discerning Migrants’ Equal Protection Rights ...............150 A. Federalism’s Place .....................................................150 B. Federalism’s Disruptive Effect ..................................156 C. Fulfilling Equality’s Promise.....................................160 VI. Conclusion ........................................................................164 THE PREEMPTING OF EQUAL PROTECTION 79 I. Introduction For 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 exam 2 and excludes lawfully present noncitizens classified as non-immigrants 3 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 1. See ROGER DANIELS, GUARDING THE GOLDEN DOOR: AMERICAN IMMIGRATION POLICY AND IMMIGRANTS SINCE 1882, at 3 (2004) (describing the “golden doorway of admission to the United States” and various efforts to narrow it). 2. See LeClerc v. Webb, 419 F.3d 405, 410–21 (5th Cir. 2005) (denying an equal protection challenge to a Louisiana Supreme Court rule that restricted bar admission to citizens and lawful permanent residents). 3. Under immigration law, nonimmigrants are persons “admitted to the United States only for the duration of their status, and on the express condition they have ‘no intention of abandoning’ their countries of origin and do not intend to seek permanent residence in the United States.” Id. at 418–19. But, while “nonimmigrants must indicate an intent not to remain permanently in the United States” as a condition of their visa, they may lawfully express a simultaneous “intent to remain permanently (when they apply for LPR status).” Dandamudi v. Tisch, 686 F.3d 66, 77–78 (2d. Cir. 2012) (describing this dual intent doctrine). 4. See Van Staden v. St. Martin, 664 F.3d 56, 57–61 (5th Cir. 2011) (rejecting an equal protection challenge to Louisiana law (...truncated)