Notice & Comment

UnEqual Protection in Immigration Law, by Carrie Rosenbaum

Immigration law has contributed to shaping and reinforcing the construct of race more than any other area of administrative law. Congress and the Executive have shaped immigration law via express and implicit racial restrictions on membership in the United States political community, and with respect to the allocation of rights, such as racial restrictions on naturalization and national origin quotas – a proxy for race. The Court has historically exercised extraordinary deference to the Executive and Congress, validating these practices contrary to constitutional and democratic norms. Such deference minimizes the judicial review of equal protection challenges to facially neutral laws where outcomes are often dependent on proof of discriminatory intent. Immigration law’s exceptionality, or treatment as different from the perspective of mainstream constitutional law, reinforces implicit and systemic racial bias that already diminishes the ability to prevail in an equal protection challenge to a facially neutral law.

There are two challenging overarching dynamics at play with respect to racism in immigration law today, particularly during this Administration. As racial discrimination has become disguised in facially neutral mechanisms, it is harder to curtail via equal protection. At the same time, president Trump has resurrected expressly racist rhetoric, but because the Supreme Court has embraced a mythical “colorblind nationalism,” as described by Ming Hsu Chen, only one Justice has been willing to connect the dots.

Complicating matters further is a tacit tolerance of national origin-based preference compared to racial profiling by criminal law enforcement agents or criminal laws with disparate racial impacts. An added layer is the increase in deference given to a law that discriminates based on alienage when the noncitizen lacks lawful immigration status. In spite of virulent anti-immigrant rhetoric from officials in positions of power and an increase in more visible public anti-immigrant sentiment, limitations of the equal protection intent doctrine and two aspects of immigration law inhibit upholding of democratic equality and rule of law principles.   

In immigration law, plenary power, justified by national security and sovereignty, rationalizes exceptional deference to the Executive and Congress in immigration law. The plenary power doctrine was born in an historical, political, legal, and social context imbued with racism to define particular groups as outside of the scope of citizenship and therefore, rights. This political exclusion was first exhibited towards American Indians, slaves and recently legally freed slaves, and later, racialized immigrants of color. Shortly before the Dred Scott case, over one hundred years ago, in Chae Chan Ping v. United States, known as the Chinese Exclusion case, the Supreme Court carved out immigration law from the rest of administrative law declaring exceptional deference to Congress and the Executive, and validating national origin and race discrimination in deportation and exclusion law in the name of national security and sovereignty. Racism has pervaded immigration law ever since. 

With the first national origin quotas in 1921 favoring people from northern and western Europe, nativists influenced United States immigration policy insulating their aims from attack, and reinforcing the notion that national origin preferences were less offensive to a democratic republic than other more express forms of racism. Once it was no longer politically sanguine for the democratic republic to maintain a system of immigration laws that expressly discriminated on the basis of race or national origin, such preferences manifested in other manners. In 1952, Congress eliminated the last vestiges of racial restrictions on naturalization via the McCarran-Walter Act, and 1965 reforms created formal equality with repeal of national origin quotas. Yet while our contemporary immigration laws generally do not expressly articulate different or more punitive exclusionary treatment for immigrants of color, disparate impact prevails, visible in border jails filled with immigrants of color and in the racially disproportionate composition of crimmigration deportations. Latinx, and particularly Mexican immigrants have borne the brunt of heightened immigration enforcement programs including massive repatriations that swept up Mexican-Americans in addition to undocumented persons of Mexican descent. Less visibly, black noncitizens facing deportation for criminal convictions is disproportionately high compared to their percentage of the total noncitizen population. 

When immigration law is taken for granted (by Congress, the Court, and the media) as colorblind and ahistorical, its racializing history is erased and facially race neutral policies go unchecked. The persistence of plenary power is a hallmark of the United States’ unwillingness to reject the settler colonial tendency towards “white nationalism as immigration policy.” This impetus has outstripped the constitutional promise of equality and manifests in the failure to eliminate the “colorblind nationalism of immigration law. Racial discrimination in immigration law continues to evade remediation, particularly where proving discriminatory intent to the satisfaction of the Court is elusive, even when it is viscerally politically, socially, and culturally omnipresent.

Immigration equal protection challenges to facially neutral laws are plagued with three distinct and related institutional barriers. First, the Court often refuses to validate them, preferring Administrative Procedure Act or preemption challenges, as was the case with the Court’s recent decision invalidating the Trump Administration’s attempt to rescind DACA, and about a decade earlier, in the Court’s invalidation of most of Arizona’s SB 1070. The Court’s preference for these other remedies embodies what Hiroshi Motomura has coined “phantom constitutional norms,” subverting plenary power signaling an incremental approach to mainstreaming constitutional protections in immigration law. However, when it chooses these administrative remedies over a constitutional equal protection one, it fails to validate a claim of racial bias and fosters colorblind, implicit, and systemic bias in immigration law, masking its social, political, and tangible harm.

Second, because of the persistence of plenary power, when the Court considers an equal protection challenge to a facially neutral immigration law or regulation, it employs only rational basis scrutiny and defers to Congress and the Executive, elevating its national security and sovereignty rationales over anti-discrimination concerns. Jenny-Brooke Condon describes equal protection in the context of immigration law as “equal protection exceptionalism” reflecting the way in which anti-discrimination norms are undermined on the basis of immigration status and plenary power. 

Third, even outside of immigration law, the equal protection intent doctrine has been so badly distorted that a challenge to a facially neutral law based on discriminatory intent is nearly insurmountable. In and outside of immigration law, the Court has created such a high standard for proving a discriminatory intent in the face of a colorblind law that it has codified colorblind institutional racism. 

Two of these factors were at play in the Supreme Court’s recent decision in Trump v. Hawaii, and all three were present in DHS v. Regents of California. In Trump v. Hawaii, the Supreme Court upheld President Trump’s travel ban by disregarding evidence of religious bias (what Moustafa Bayoumi might refer to as “racing religion”), and pursuant to plenary power, deferring to the Executive’s claim of national security concerns. In the infamous Korematsu case decades earlier, the Court also applied only rational basis review to uphold Japanese internment prioritizing the federal government’s claim of national security in spite of the real and immediate harm of the internment. Decades later, the alleged national security threat of potential Japanese spies was totally debunked. Plenary power and the limitations of the equal protection doctrine in remedying racism remained stuck in a jurisprudence designed to validate racialized harm. As she would be in Regents of California, Justice Sonia Sotomayor was the lone voice calling for more rigorous review.

In Regents of California, the Supreme Court invalidated the Trump administration’s attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program on an Administrative Procedure Act (APA) claim, but rejected the equal protection challenge using a similarly cabined approach to equal protection as in the Hawaii case. In her dissent, Justice Sotomayor determined that the record supported further consideration of the possibility that discriminatory animus played a role in the rescission. Only by “discounting some allegations altogether and by narrowly viewing the rest” did the plurality come to the opposite conclusion, she said. The Trump v. Hawaii and Regents of California cases are examples of the Court’s refusal to recognize implicit and systemic racial bias and to morph the intent doctrine into a foil for equal protection. 

In Regents of California, the Supreme Court recognized that seventy-eight percent of DACA holders are of Mexican descent, but that fact combined with President Trump’s anti-Mexican rhetoric was not enough to convince the majority. Trump has expressed a clear intent to use every tool at his disposal, legal or not, to effectively send the country back to the pre-civil rights era, particularly with respect to Latinx immigrants. Rescission of DACA would have been one small but significant component of what Kevin Johnson describes as Trump’s “New Latinx Repatriation, which is largely comprised of race neutral policies, but will result in a greater repatriation of those of Mexican descent than any other period in United States history. 

The President’s rhetoric draws on a deep history of racist, xenophobic, and nationalist rhetoric always lurking beneath the surface, imbedded within American law and culture.  His discourse has embraced race as a means of demonizing immigrants of color or anyone not perceptibly from western or northern Europe, yet the Court has refused to recognize the institutionalized racism at work, or the implicit bias in the administration’s policies. Even with less evidence of racist rhetoric, the numerous policies impacting Latinx immigrants (jails to deter migration, resurrection of Secure Communities, raids) themselves are evidence of discriminatory intent. Measures like attempting to rescind DACA, in Charles R. Lawrence III’s words, “convey[] a symbolic message to which the culture” would “attach racial significance.”That should be enough to justify heightened scrutiny.

Immigration plenary power’s tendency to reinforce race and suppress deterrents to racial discrimination and the problem of the intent doctrine implicate the need for a normative anti-racist organizing metatheory of immigration exceptionalism. Rather than categorically unexceptionalzing immigration law, an anti-racist immigration exceptionalism could trigger heightened scrutiny in equal protection challenges to colorblind immigration laws, rather than the historic opposite. (Jenny-Brooke Condon refers to this as an “anti-subordination approach to immigrant equality.) National sovereignty and plenary power should trigger a higher level of scrutiny when racial rights are at stake. Alternatively, the Court could apply the same standard of review that would apply to a racial restriction outside of immigration law or to state alienage laws, like the 1886 Yick Wo v. Hopkins case where the Court held that a noncitizen is entitled to equal protection in the face of racial discrimination. Either approach would increase the perception of legitimacy of our democratic institutions, particularly given the historic role plenary power, national security, and sovereignty play in tacitly authorizing racially discriminatory immigration laws. An anti-racist organizing metatheory of immigration exceptionalism would create a normatively and constitutionally sound test.


Carrie Rosenbaum is a Lecturer and Visiting Scholar at the University of California, Berkeley, where she teaches Immigration & Citizenship

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