Become a Patreon!


Excerpted From: Carrie L. Rosenbaum, (Un)equal Immigration Protection, 50 Southwestern Law Review 231 (2021) (194 Footnotes) (Full Document)


CarrieLRosenbaumThe Supreme Court's recent ruling in Department of Homeland Security (DHS) v. Regents exposes the equal protection doctrine's failure to reach one of the most entrenched systems of racial oppression in the United States-- immigration law. The Regents Court considered the lawfulness of the Trump administration's criticized Deferred Action for Childhood Arrivals (DACA) rescission. Former Department of Homeland Security Secretary Janet Napolitano announced the DACA program on June 15, 2012, and it allowed DHS to exercise discretion to defer removal of young noncitizens who met specific and rigorous criteria to qualify for the program. By the time of the rescission, DHS had granted deferred action to over 800,000 individuals.

The rescission was effectuated via a facially race-neutral government action but with a documented disparate impact on Latinos and surrounded by anti-Latino rhetoric. When a state action does not purport to discriminate overtly on the basis of race, the Court analyzes equal protection claims via the intent doctrine, or by looking at the intent of the lawmaker. In Regents, in spite of considerable evidence of discriminatory intent--disparate impact and discriminatory rhetoric--the Court dismissed the equal protection challenge, instead invalidating the policy on Administrative Procedure Act (APA) grounds. The Court sidestepped equal protection scrutiny through an unsatisfying combination of “plenary power,” a doctrine that grants great legal deference to the political branch, and the intent doctrine, which also ultimately affords great deference to the government actor accused of discrimination.

This article will contribute to immigration equal protection jurisprudential discussions by highlighting the way in which 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, 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 have resulted in repatriation of more Latinx 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 generally 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 the political branch's authority over immigration law, which results in a dilution of constitutional protections for noncitizens at the expense of 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.

[. . .]

Rescission of DACA would have been one small but significant component of what Kevin Johnson described as Trump's “new Latinx repatriation”--race-neutral policies that will result in a greater exodus of those of Mexican descent than any other period in United States history. As long as the Court is unwilling to eliminate the discriminatory motivation requirement or consider just disparate impact in conjunction with history of systemic and implicit bias, the Equal Protection Clause may not protect noncitizens subjected to discriminatory immigration law and policy.

If the Plyler Court was concerned enough about undocumented immigrant children to strike down a state law that might otherwise create a caste system, or if immigration decisions may stigmatize citizens, the Court should be concerned about noncitizens facing discrimination by the federal government in determining who should be able to come and stay--particularly when such discrimination creates a perception of undesirability and inequality that stigmatizes lawful immigrants and citizens of that national origin. The Court's failure to dispose of plenary power and the consistently inconsistent approach to immigration equal protection is the doctrine's undoing.

If equality is considered a necessary component of rule of law, racism has historically undermined that rule and its democratic moorings. The anti-democratic discordance of racism necessitates change reflective of Hiroshi Motomura's proposal that for borders to be ethical, immigration laws must not discriminate in any way that would be disallowed domestically-- particularly by race or religion. For borders to be ethical, the intent doctrine and immigration plenary power must not undermine equal protection's role in preventing invidious discrimination, including in determination of who may be permitted to enter and remain in the United States.

Visiting Scholar and Lecturer, University of California Berkeley School of Law Center for the Study of Law and Society.

Become a Patreon!