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  • Article: A Colloquy about the Disappearing Equal Protection Rights of Immigrants. By Kevin R. Johnson

    A Colloquy about the Disappearing Equal Protection Rights of Immigrants

    by


     Jenny-Brooke Condon’s recent article The Preempting of Equal Protection for Immigrants? analyzes important issues surrounding the constitutional rights of immigrants. Professor Condon in essence contends that the current legislative, executive, and scholarly focus on the distribution of immigration power between the state and federal governments has undermined the Equal Protection rights of legal immigrants in the United States. Despite the contentious national debates over immigration reform, immigrants’ rights have generally been of secondary concern in contemporary immigration scholarship, which is now dominated by analysis of immigration federalism. 

    I comment on Professor Condon's article in Washington & Lee Law Review On-Line.  In my estimation, Professor Condon undoubtedly is correct that we should not lose sight of the rights of immigrants through a myopic focus on federalism concerns. Courts should be vigilant to protect noncitizens from the excesses of all governmental exercises of power, including discrimination against immigrants by the federal government.

    Professor Condon undoubtedly is correct that we should not lose sight of the rights of immigrants through a myopic focus on federalism concerns. Courts should be vigilant to protect noncitizens from the excesses of all governmental exercises of power, including discrimination against immigrants by the federal government.

    This essay identifies two areas for future inquiry that build on The Preempting of Equal Protection for Immigrants? First, Professor Condon questions the arbitrary line-drawing between the standards of review of state and federal alienage classifications. But, she herself draws a questionable line by advocating for greater protection of the constitutional rights of legal immigrants, while stopping short of calling for the extension of rights to undocumented immigrants. However, all immigrants are disenfranchised, lack direct political power, and frequently suffer the disfavor of the majority in the political process. That status militates in favor of strict scrutiny review of laws targeting undocumented as well as lawful immigrants.

    Second, if Professor Condon’s call for greater attention to the Equal Protection rights of noncitizens is taken seriously, we must examine the continuing vitality of the plenary power doctrine. That exceptional doctrine shields from judicial review invidious classifications under the U.S. immigration laws, including discrimination that would be patently unconstitutional if applied to U.S. citizens; those laws historically have discriminated against noncitizens who are racial minorities, poor, disabled, women, political dissidents, and others. Dismantling what is known as “immigration exceptionalism” has long puzzled immigration law scholars. Professor Condon reminds us of the need to reconsider the constitutional immunity for immigrant admissions and removal criteria.

    This post originally appeared on Law Professor Blogs © 2014-2016 by Law Professor Blogs, LLC. All rights reserved. Reprinted with permission.


    About The Author

    Kevin Johnson Kevin Johnson is Dean, Mabie-Apallas Professor of Public Interest Law, and Professor of Chicana/o Studies. He joined the UC Davis law faculty in 1989 and was named Associate Dean for Academic Affairs in 1998. Johnson became Dean in 2008. He has taught a wide array of classes, including immigration law, civil procedure, complex litigation, Latinos and Latinas and the law, and Critical Race Theory. In 1993, he was the recipient of the law school's Distinguished Teaching Award.Dean Johnson has published extensively on immigration law and civil rights. Published in 1999, his book How Did You Get to Be Mexican? A White/Brown Man's Search for Identity was nominated for the 2000 Robert F. Kennedy Book Award. Dean Johnson’s latest book, Immigration Law and the US-Mexico Border (2011), received the Latino Literacy Now’s International Latino Book Awards – Best Reference Book. Dean Johnson blogs at ImmigrationProf, and is a regular contributor on immigration on SCOTUSblog. A regular participant in national and international conferences, Dean Johnson has also held leadership positions in the Association of American Law Schools and is the recipient of an array of honors and awards. He is quoted regularly by the New York Times, Los Angeles Times, and other national and international news outlets.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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