Equal protection held hostage: Ransoming the constitutionality of the hostage taking act

Northwestern University Law Review

Volumn 91, Issue 2, 1997, Pages 573-608

  Romero, Victor C ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347072689     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (222)

1. For a brief description of these events, see JOSEPH J. LAMBERT, TERRORISM AND HOSTAGES IN INTERNATIONAL LAW - A COMMENTARY ON THE HOSTAGES CONVENTION 1979, at 2-3 (1990).
2. U.K.T.S. 81 (1983) Cmnd 9100, reprinted in 18 I.L.M. 1456 (1979) [hereinafter HTC]. The Convention is annexed to G.A. Res. 34/146, U.K. GAOR, 34th Sess., Supp. No. 46, at 245, U.N. Doc. A/34/46 (1980).
3. 18 U.S.C. § 1203 (1984).
4. See infra Parts III, IV. This Article uses the term "noncitizen" in place of "alien," and "undocumented immigrant" in place of "illegal alien." While the term "alien" is one of art that has a specific legal meaning under 8 U.S.C. § 1101(a)(3), I agree with Professor Gerald Neuman that referring to noncitizens as aliens "calls attention to their 'otherness,' and even associates them with nonhuman invaders from outer space." Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995). also prefer the term "undocumented immigrant" over "illegal alien" for two reasons: First labeling individuals as "illegal" prior to a judicial or administrative determination fails to recognize that some undocumented persons may nevertheless be lawfully in the country or may be granted discretionary administrative relief. . . . Second, the term "illegal" ignores the reality of current U.S. immigration law. For example, while undocumented immigrants may be technically violating the law, greedy U.S. employers and lax border guards combine to facilitate and encourage foreign workers to enter the country. Victor C. Romero, Note, Whatever Happened to the Fourth Amendment?: Undocumented Immigrants' Rights After INS v. Lopez-Mendoza and United States v. Verdugo-Urquidez, 65 S. CAL. L. REV. 999, 999 n.1 (1992) (citations omitted); see also ROY L. BROOKS ET AL., CIVIL RIGHTS LITIGATION: CASES AND MATERIALS 976 (1995) (observing that "illegal alien" is a pejorative usage that tends to dehumanize the undocumented).
5. See infra Parts III, IV. This Article uses the term "noncitizen" in place of "alien," and "undocumented immigrant" in place of "illegal alien." While the term "alien" is one of art that has a specific legal meaning under 8 U.S.C. § 1101(a)(3), I agree with Professor Gerald Neuman that referring to noncitizens as aliens "calls attention to their 'otherness,' and even associates them with nonhuman invaders from outer space." Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995). also prefer the term "undocumented immigrant" over "illegal alien" for two reasons: First labeling individuals as "illegal" prior to a judicial or administrative determination fails to recognize that some undocumented persons may nevertheless be lawfully in the country or may be granted discretionary administrative relief. . . . Second, the term "illegal" ignores the reality of current U.S. immigration law. For example, while undocumented immigrants may be technically violating the law, greedy U.S. employers and lax border guards combine to facilitate and encourage foreign workers to enter the country. Victor C. Romero, Note, Whatever Happened to the Fourth Amendment?: Undocumented Immigrants' Rights After INS v. Lopez-Mendoza and United States v. Verdugo-Urquidez, 65 S. CAL. L. REV. 999, 999 n.1 (1992) (citations omitted); see also ROY L. BROOKS ET AL., CIVIL RIGHTS LITIGATION: CASES AND MATERIALS 976 (1995) (observing that "illegal alien" is a pejorative usage that tends to dehumanize the undocumented).
6. See infra Parts III, IV. This Article uses the term "noncitizen" in place of "alien," and "undocumented immigrant" in place of "illegal alien." While the term "alien" is one of art that has a specific legal meaning under 8 U.S.C. § 1101(a)(3), I agree with Professor Gerald Neuman that referring to noncitizens as aliens "calls attention to their 'otherness,' and even associates them with nonhuman invaders from outer space." Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1428 (1995). also prefer the term "undocumented immigrant" over "illegal alien" for two reasons: First labeling individuals as "illegal" prior to a judicial or administrative determination fails to recognize that some undocumented persons may nevertheless be lawfully in the country or may be granted discretionary administrative relief. . . . Second, the term "illegal" ignores the reality of current U.S. immigration law. For example, while undocumented immigrants may be technically violating the law, greedy U.S. employers and lax border guards combine to facilitate and encourage foreign workers to enter the country. Victor C. Romero, Note, Whatever Happened to the Fourth Amendment?: Undocumented Immigrants' Rights After INS v. Lopez-Mendoza and United States v. Verdugo-Urquidez, 65 S. CAL. L. REV. 999, 999 n.1 (1992) (citations omitted); see also ROY L. BROOKS ET AL., CIVIL RIGHTS LITIGATION: CASES AND MATERIALS 976 (1995) (observing that "illegal alien" is a pejorative usage that tends to dehumanize the undocumented).
7. See Phillip B. Heymann & Ian H. Gershengorn, Pursuing Justice, Respecting the Law, 3 CRIM. L.F. 14 n.73 (Autumn 1991) (citing United States v. Yunis, 681 F. Supp. 896 (D.D.C 1988), aff'd, 924 F.2d 1086 (D.C. Cir. 1991)).
8. See infra subpart IV.A.
9. See infra subpart IV.C.
10. See infra subparts IV.B, IV.D.
11. Indeed, the plain terms of the Act make it inapplicable to situations in which the hostage-taker and hostage are both United States citizens, except in situations in which the hostage-taker attempts to coerce the United States government. See infra text accompanying note 82.
12. This Article is limited to discussing the HTA under an equal protection analysis; some courts have discussed the constitutionality of the HTA in other contexts. See, e.g., United States v. Chen De Yian, 905 F. Supp. 160, 163-65 (S.D.N.Y. 1995) (examining the constitutionality of the Act under the Commerce Clause and the Necessary and Proper Clause, as well as under an equal protection analysis).
13. See infra Part IV.
14. 115 S. Ct. 2097 (1995). See infra subpart V.A.
15. 473 U.S. 432 (1985). See infra subpart V.A.
16. 18 U.S.C. § 1203(a) (1994) (requiring imprisonment "for any term of years or for life"). Under the federal sentencing guidelines, "kidnapping, abduction, or unlawful restraint" is punishable at a base offense level of 24; specific offense characteristics that enhance the sentence include whether a demand upon the government was made, whether the victim sustained permanent or life-threatening bodily injury, whether a dangerous weapon was used, and so on. U.S. SENTENCING GUIDELINES MANUAL § 2A4.1 (1996). In contrast, state penalties vary greatly, ranging anywhere from a minimum of parole to a maximum sentence of death. However, only Nevada's and Washington's statutes carry a maximum death sentence; most of the other state statutes carry maxima from a specific term of years to life imprisonment. Thus, a kidnapping involving a noncitizen defendant in the state of Delaware would be punishable by a maximum of 20 years under applicable state law, but by a maximum of life imprisonment under the HTA. DEL. CODE ANN. tit. 11, § 783a (1995) (kidnapping in the first degree is a Class B felony which, under DEL. CODE ANN. tit. 11, § 4205 (1995), carries a minimum sentence of 2 years and a maximum of 20 years). See also infra Appendix A, which lists additional state kidnapping statutes.
17. The international nexus test serves as a check on prosecutorial discretion; my concern is that absent such a check, future HTA cases may have a disparate impact upon noncitizens. This test is designed to obviate the need for the defense of selective prosecution in future cases. For commentary and cases on the selective prosecution doctrine, see, e.g., Tobin J. Romero, Project: Twenty-Fourth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1993-1994, 83 GEO. L.J. 839, 839-50 (1995) (discussing recent federal appeals court cases regarding prosecutorial discretion and selective prosecution);
18. Developments in the Law -Race and the Criminal Process, 101 HARV. L. REV. 1472, 1520-57 (1988) (discussing the problem of race and prosecutorial decisionmaking);
19. P.S. Kane, Note, Why Have You Singled Me Out?: The Use of Prosecutorial Discretion for Selective Prosecution, 67 TUL. L. REV. 2293 (1993).
20. I use the term "displace" to describe an anticipated experiential outcome if HTA prosecutions in state-law kidnapping cases continue to go unchecked. I do not suggest that Congress has intended to preempt the field of kidnapping. For commentary on the law of preemption and federalism, see, e.g., Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994) (distinguishing between preemption and supremacy as separate constitutional concepts); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 HASTINGS CONST. L.Q. 69 (1988) (proposing ways in which the federal courts could restore the link between preemption and the Constitution); see also KENNETH STARR ET AL., THE LAW OF PREEMPTION: A REPORT OF THE APPELLATE JUDGES CONFERENCE (1991); JOSEPH ZIMMERMAN, FEDERAL PREEMPTION: THE SILENT REVOLUTION (1991).
21. I use the term "displace" to describe an anticipated experiential outcome if HTA prosecutions in state-law kidnapping cases continue to go unchecked. I do not suggest that Congress has intended to preempt the field of kidnapping. For commentary on the law of preemption and federalism, see, e.g., Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994) (distinguishing between preemption and supremacy as separate constitutional concepts); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 HASTINGS CONST. L.Q. 69 (1988) (proposing ways in which the federal courts could restore the link between preemption and the Constitution); see also KENNETH STARR ET AL., THE LAW OF PREEMPTION: A REPORT OF THE APPELLATE JUDGES CONFERENCE (1991); JOSEPH ZIMMERMAN, FEDERAL PREEMPTION: THE SILENT REVOLUTION (1991).
22. I use the term "displace" to describe an anticipated experiential outcome if HTA prosecutions in state-law kidnapping cases continue to go unchecked. I do not suggest that Congress has intended to preempt the field of kidnapping. For commentary on the law of preemption and federalism, see, e.g., Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994) (distinguishing between preemption and supremacy as separate constitutional concepts); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 HASTINGS CONST. L.Q. 69 (1988) (proposing ways in which the federal courts could restore the link between preemption and the Constitution); see also KENNETH STARR ET AL., THE LAW OF PREEMPTION: A REPORT OF THE APPELLATE JUDGES CONFERENCE (1991); JOSEPH ZIMMERMAN, FEDERAL PREEMPTION: THE SILENT REVOLUTION (1991).
23. I use the term "displace" to describe an anticipated experiential outcome if HTA prosecutions in state-law kidnapping cases continue to go unchecked. I do not suggest that Congress has intended to preempt the field of kidnapping. For commentary on the law of preemption and federalism, see, e.g., Stephen A. Gardbaum, The Nature of Preemption, 79 CORNELL L. REV. 767 (1994) (distinguishing between preemption and supremacy as separate constitutional concepts); Paul Wolfson, Preemption and Federalism: The Missing Link, 16 HASTINGS CONST. L.Q. 69 (1988) (proposing ways in which the federal courts could restore the link between preemption and the Constitution); see also KENNETH STARR ET AL., THE LAW OF PREEMPTION: A REPORT OF THE APPELLATE JUDGES CONFERENCE (1991); JOSEPH ZIMMERMAN, FEDERAL PREEMPTION: THE SILENT REVOLUTION (1991).
24. LAMBERT, supra note 1, at 1. The five other conventions and two protocols are the 1963 Tokyo Convention on Offenses and Certain Other Acts Committed on Board Aircraft; the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft; the 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation and 1988 Protocol Thereto for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation; the 1973 New York Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents; and the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and Protocol Thereto for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms Located on the Continental Shelf. Id.
25. Id. at 5.
26. Id. at 57.
27. Id. at 65.
28. Id.
29. Id.
30. Id.
31. U.S. DEPT. OF STATE, TREATIES IN FORCE: A LIST OF TREATIES & OTHER INTERNATIONAL AGREEMENTS OF THE U.S. IN FORCE ON JANUARY 1, 1995, at 432 (1995) (listing signatories to the HTC).
32. HTC, supra note 2, art. 1.
33. Moreover, the Hostage Taking Convention does not draw distinctions as to the nationalities of either the hostage-taker or the hostage. Interestingly, even though it was primarily drafted to combat hostage-taking by international terrorists, the Convention itself does not define the term "terrorism" because of the political nature of the term. Some commentators define terrorism as including all concerted acts of violence against a targeted group for the purpose of achieving a political end, while others would distinguish the motive behind the political act. As one writer has stated, "one man's terrorist is another man's freedom fighter." Elizabeth R.P. Bowen, Note, Jurisdiction Over Terrorists Who Take Hostages: Efforts to Stop Terror-Violence Against United States Citizens, 2 AM. U. J. INT'L L. & POL'Y 153, 159 (1987) (contrasting Menachem Begin, Freedom Fighters and Terrorists, in INTERNATIONAL TERRORISM: CHALLENGE AND RESPONSE 39-46 (B. Netanyahu ed., 1979)). For a discussion of definitions of terrorism in both international and domestic legal instruments, see Douglas Kash, Abductions of Terrorists in International Airspace and on the High Seas, 8 FLA. J. INT'L L. 65, 66-73 (1993).
34. Moreover, the Hostage Taking Convention does not draw distinctions as to the nationalities of either the hostage-taker or the hostage. Interestingly, even though it was primarily drafted to combat hostage-taking by international terrorists, the Convention itself does not define the term "terrorism" because of the political nature of the term. Some commentators define terrorism as including all concerted acts of violence against a targeted group for the purpose of achieving a political end, while others would distinguish the motive behind the political act. As one writer has stated, "one man's terrorist is another man's freedom fighter." Elizabeth R.P. Bowen, Note, Jurisdiction Over Terrorists Who Take Hostages: Efforts to Stop Terror-Violence Against United States Citizens, 2 AM. U. J. INT'L L. & POL'Y 153, 159 (1987) (contrasting Menachem Begin, Freedom Fighters and Terrorists, in INTERNATIONAL TERRORISM: CHALLENGE AND RESPONSE 39-46 (B. Netanyahu ed., 1979)). For a discussion of definitions of terrorism in both international and domestic legal instruments, see Douglas Kash, Abductions of Terrorists in International Airspace and on the High Seas, 8 FLA. J. INT'L L. 65, 66-73 (1993).
35. Moreover, the Hostage Taking Convention does not draw distinctions as to the nationalities of either the hostage-taker or the hostage. Interestingly, even though it was primarily drafted to combat hostage-taking by international terrorists, the Convention itself does not define the term "terrorism" because of the political nature of the term. Some commentators define terrorism as including all concerted acts of violence against a targeted group for the purpose of achieving a political end, while others would distinguish the motive behind the political act. As one writer has stated, "one man's terrorist is another man's freedom fighter." Elizabeth R.P. Bowen, Note, Jurisdiction Over Terrorists Who Take Hostages: Efforts to Stop Terror-Violence Against United States Citizens, 2 AM. U. J. INT'L L. & POL'Y 153, 159 (1987) (contrasting Menachem Begin, Freedom Fighters and Terrorists, in INTERNATIONAL TERRORISM: CHALLENGE AND RESPONSE 39-46 (B. Netanyahu ed., 1979)). For a discussion of definitions of terrorism in both international and domestic legal instruments, see Douglas Kash, Abductions of Terrorists in International Airspace and on the High Seas, 8 FLA. J. INT'L L. 65, 66-73 (1993).
36. For example, Libya suggested the following language to modify the Federal Republic of Germany's "any person" terminology: "the term 'taking of hostages' is the seizure or detention, not only of a person or persons, but also of masses under colonial, racist or foreign domination, in a way that threatens him or them with death, or severe injury or deprives them of fundamental freedoms." U.N. Doc. A/AC.188/L.9 (1979), as cited in LAMBERT, supra note 1, at 62 & n.220.
37. Lesotho, Tanzania, Algeria, Egypt, Guinea, Libya, and Nigeria proposed that the "taking of hostages" not include those "carried out in the process of national liberation against colonial rule, racist and foreign régimes, by liberation movements recognized by the United Nations for regional organizations." U.N. Doc. A/AC.188/L.5 (1979), as cited in LAMBERT, supra note 1, at 62 & n.222.
38. LAMBERT, supra note 1, at 79-80.
39. Id. at 84-85.
40. Id. at 85.
41. Lambert notes that without an explicit oral or written demand, a hostage-taker's intent is more difficult to prove. Id. 33 Id. at 85-87. In addition, the Hostage Taking Convention specifically lists "attempt" and "participation" as Article 1 offenses. Id. at 89-92.
42. HTC, supra note 2, art. 2.
43. LAMBERT, supra note 1, at 93.
44. Id. at 93, 102-03.
45. Id. at 101. This policy has prompted two responses from member states: one, to enact specific enabling legislation (as the U.S. did via the HTA); and two, to rely on existing law that already punishes similar acts such as kidnapping. Id.
46. Id. at 93. Lambert identifies two reasons that underlie this deference to municipal legal enforcement of the Hostage Taking Convention: first, the extent of individual liability under international law for criminal offenses is unclear; and second, no judicial or enforcement mechanisms with the exception of those in individual states' legal frameworks exist to address international offenses. Id. at 94.
47. Id. at 105 ("The most severe penalty - death - can be imposed by the Philippines, while the least severe maximum penalty - 14 years - is provided for under the law of New Zealand."). While such a disparity in sentences might support the move toward a more uniform sentencing policy, Lambert notes that most countries reject such an approach. Id. at 102-03 & n.39 (describing similar subcommittee discussions during the drafting of the Hague Convention).
48. 18 U.S.C. § 1203(a) (1994). For the sentencing guidelines provision, see supra note 14.
49. Article 5 provides: 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over any of the offenses set forth in article 1 which are committed: (a) in its territory or on board a ship or aircraft registered in that State; (b) by any of its nationals or, if that State considers it appropriate, by those stateless persons who have their habitual residence in its territory; (c) in order to compel that State to do or abstain from doing any act; or (d) with respect to a hostage who is a national of that State, if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over the offenses set forth in article 1 in cases where the alleged offender is present in its territory and it does not extradite him to any of the States mentioned in paragraph 1 of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. HTC, supra note 2, art. 5.
50. "Because such crimes present a threat to the entire international order, it is imperative that offenders are prosecuted, and the greater the number of States which have jurisdiction over the offenses, the greater the possibility that this will happen." LAMBERT, supra note 1, at 135.
51. Id. at 142.
52. For an excellent discussion of these issues, see id. at 134-65.
53. HTC, supra note 2, art. 13.
54. LAMBERT, supra note 1, at 299.
55. "The only problem of interpretation which arises with respect to this Article is whether it excludes from the scope of the Convention acts of hostage-taking which are otherwise internal in nature, but where the target of demands is either a foreign State or a third party located in a foreign State." Id.
56. The Joint Explanatory Statement of the Committee of the Conference states that the Crime Bill under which the HTA was passed [i]mplements the International Convention Against the Taking of Hostages. It supplements the Federal kidnapping statute to cover certain acts of hostage taking, prohibits hostage taking intended to compel a third person or a government to take or refrain from acting, and expands Federal jurisdiction over certain hostage taking offenses. The provision also implements the International Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. It expands the protections of current law to cover more persons, to prohibit more acts that threaten aviation safety, and to expand Federal jurisdiction over certain offenses. H.R. CONF. REP. No. 1159, 98th Cong., 2d Sess. 418 (1984), reprinted in 1984 U.S.C.C.A.N. 3714.
57. 18 U.S.C. § 1201(a) (1994). The federal kidnapping statute provides in pertinent part: (a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when - (1) the person is willfully transported in interstate or foreign commerce; . . . shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment. Id. § 1201(a)(1) (emphasis added). Thus, in most circumstances, the federal kidnapping statute would not apply to international hostage-taking situations that occurred completely within one state.
58. Dr. Lambert's comment specifically addresses the issue of the United States' extraterritorial jurisdiction over international hostage-taking acts; again, this issue is beyond the scope of this Article. For thoughtful commentary on international jurisdictional implications of the Act, see infra note 59 and authorities cited therein.
59. LAMBERT, supra note 1, at 102 & n.38.
60. Heymann & Gershengorn, supra note 5, at 5.
61. Pub. L. No. 98-473, 98 Stat. 1837 (1984).
62. Legislative Initiatives Hearings, 98th Cong., 2d Sess. 48-49 (1984).
63. The following statements evince the executive branch's desire to maintain the division of responsibility between state and federal prosecuting arms: "we normally would expect state and local governments in the United States to be able to deal with most hostage-taking situations when a demand is made upon them . . . ."; "we expect state and local law enforcement authorities to handle most internal situations . . . ."; and "[u]nder S. 2624, there is an expansion of concurrent federal jurisdiction to what has traditionally been and what ought to remain primarily a local law enforcement responsibility." Legislative Initiatives Hearings, 98th Cong., 2d Sess. (1984) (responses of the U.S. Department of Justice to Written Questions of Senator Leahy).
64. Legislative Initiatives Hearings, 98th Cong., 2d Sess. 129-30 (1984) (emphasis added).
65. H.R. Doc. No. 211, 98th Cong., 2d Sess. 3 (1984).
66. Legislative Initiatives Hearings, 98th Cong., 2d Sess. 126 (1984) (citing PRES. RONALD REAGAN, MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING FOUR DRAFTS OF PROPOSED LEGISLATION TO ATTACK THE PRESSING AND URGENT PROBLEM OF INTERNATIONAL TERRORISM, H.R. Doc. No. 211, 98th Cong., 2d Sess. (April 26, 1984) [hereinafter PRESIDENT'S MESSAGE]).
67. Legislative Initiatives Hearings, 98th Cong., 2d Sess. 126 (1984) (citing PRES. RONALD REAGAN, MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANSMITTING FOUR DRAFTS OF PROPOSED LEGISLATION TO ATTACK THE PRESSING AND URGENT PROBLEM OF INTERNATIONAL TERRORISM, H.R. Doc. No. 211, 98th Cong., 2d Sess. (April 26, 1984) [hereinafter PRESIDENT'S MESSAGE]).
68. 681 F. Supp. 896 (D.D.C. 1988), aff'd, 924 F.2d 1086 (D.C. Cir. 1991). Yunis sparked much commentary regarding the United States' extraterritorial jurisdiction over international terrorists. See, e.g., Abraham Abramovsky, Extraterritorial Abductions: America's "Catch and Snatch" Policy Run Amok, 31 VA. J. INT'L L. 151 (1991); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV. 1217 (1992); Mason H. Drake, Note, United States v. Yunis: The D.C. Circuit's Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes, 87 NW. U. L. REV. 697 (1993); John G. McCarthy, Note, The Passive Personality Principle and Its Use in Combatting International Terrorism, 13 FORDHAM INT'L L.J. 298 (1990).
69. 681 F. Supp. 896 (D.D.C. 1988), aff'd, 924 F.2d 1086 (D.C. Cir. 1991). Yunis sparked much commentary regarding the United States' extraterritorial jurisdiction over international terrorists. See, e.g., Abraham Abramovsky, Extraterritorial Abductions: America's "Catch and Snatch" Policy Run Amok, 31 VA. J. INT'L L. 151 (1991); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV. 1217 (1992); Mason H. Drake, Note, United States v. Yunis: The D.C. Circuit's Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes, 87 NW. U. L. REV. 697 (1993); John G. McCarthy, Note, The Passive Personality Principle and Its Use in Combatting International Terrorism, 13 FORDHAM INT'L L.J. 298 (1990).
70. 681 F. Supp. 896 (D.D.C. 1988), aff'd, 924 F.2d 1086 (D.C. Cir. 1991). Yunis sparked much commentary regarding the United States' extraterritorial jurisdiction over international terrorists. See, e.g., Abraham Abramovsky, Extraterritorial Abductions: America's "Catch and Snatch" Policy Run Amok, 31 VA. J. INT'L L. 151 (1991); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV. 1217 (1992); Mason H. Drake, Note, United States v. Yunis: The D.C. Circuit's Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes, 87 NW. U. L. REV. 697 (1993); John G. McCarthy, Note, The Passive Personality Principle and Its Use in Combatting International Terrorism, 13 FORDHAM INT'L L.J. 298 (1990).
71. 681 F. Supp. 896 (D.D.C. 1988), aff'd, 924 F.2d 1086 (D.C. Cir. 1991). Yunis sparked much commentary regarding the United States' extraterritorial jurisdiction over international terrorists. See, e.g., Abraham Abramovsky, Extraterritorial Abductions: America's "Catch and Snatch" Policy Run Amok, 31 VA. J. INT'L L. 151 (1991); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 HARV. L. REV. 1217 (1992); Mason H. Drake, Note, United States v. Yunis: The D.C. Circuit's Dubious Approval of U.S. Long-Arm Jurisdiction Over Extraterritorial Crimes, 87 NW. U. L. REV. 697 (1993); John G. McCarthy, Note, The Passive Personality Principle and Its Use in Combatting International Terrorism, 13 FORDHAM INT'L L.J. 298 (1990).
72. 924 F.2d at 1090-93.
73. In addition, the federal courts are also the proper fora for extraterritorial kidnappings where the hostage-taker is eventually found in the United States. See, e.g., United States v. Peralta, 941 F.2d 1003, 1010 (9th Cir. 1991) (holding that the Act applies to defendant national found in the U.S. who conducted kidnapping in Mexico to coerce California resident).
74. 63 F.3d 1468 (9th Cir. 1995).
75. No. 95 Cr. 129 (KMW), 1995 U.S. Dist. LEXIS 18399 (S.D.N.Y. Dec. 13, 1995).
76. 902 F. Supp. 469 (S.D.N.Y. 1995).
77. 905 F. Supp. 160 (S.D.N.Y. 1995) (examining constitutional issues arising in connection with the HTA) [hereinafter Chen II]. The court issued an earlier separate opinion that dealt with discovery and procedural matters. See United States v. Chen De Yian, No. 94 Cr. 719 (DLC), 1995 U.S. Dist. LEXIS 8560 (S.D.N.Y. June 21, 1995) [hereinafter Chen I].
78. 63 F.3d 1468 (9th Cir. 1995).
79. Id. at 1470 (citing 18 U.S.C. § 1203 (1984)). The panel also affirmed these defendants' convictions for violation of 18 U.S.C. § 924(c) for their use of firearms in a crime of violence. Id.
80. Id.
81. Id.
82. Id.
83. Id.
84. Id.
85. Id.
86. Id. at 1470-71 (detailing Santos's escape through a window and his subsequent pursuit at gunpoint by the defendants).
87. Id. at 1471.
88. Id. at 1470.
89. Id.
90. Id.
91. 944 F.2d 220 (5th Cir. 1991), cert. denied, 503 U.S. 965 (1992).
92. Lopez-Flores, 63 F.3d at 1470.
93. In an unpublished disposition decided in 1994, the Ninth Circuit had the opportunity to rule on the facial constitutionality of the HTA in United States v. Ortiz-Marquez, No. 91-50112, 1994 U.S. App. LEXIS 19179, at *10-*11 (9th Cir. July 16, 1994). In yet another smuggling case, the Ortiz-Marquez court held that it need not reach the equal protection issue because even if the defendants had been U.S. nationals, the victim was a noncitizen, and therefore the Act as applied to this case passed constitutional muster. Id.
94. 18 U.S.C. § 1203(a) & (b)(2) (1994).
95. Lopez-Flores, 63 F.3d at 1471-72.
96. The court rejected the government's contention that the defendants had no standing to make this claim, accepting instead the defendants' contention that because they challenged the statute on its face, they had standing to proceed. Id. at 1472 (citing McCleskey v. Kemp, 481 U.S. 279, 291-92 n.8 (1987)).
97. Id. at 1472 (citing Bolling v. Sharpe, 347 U.S. 497 (1954)).
98. Id. (citing Jones v. Helms, 452 U.S. 412, 423-24 (1981); Hernandez v. Texas, 347 U.S. 475, 479 (1954)).
99. Id. Congress must have contemplated four possible defendant-victim citizenship scenarios when it passed the HTA: (1) noncitizen defendant-noncitizen victim; (2) noncitizen defendant-citizen victim; (3) citizen defendant-noncitizen victim; and (4) citizen defendant-citizen victim. Assuming that noncitizens and citizens are equally likely to engage in hostage-taking, the HTA allows the noncitizen defendant to be prosecuted in twice as many scenarios as the citizen. Thus, the HTA would apply to both scenarios involving noncitizen defendants (scenarios 1 and 2), but only one scenario involving the citizen defendant (scenario 3, but not 4).
100. Id. (citing Plyler v. Doe, 457 U.S. 202, 217-18 (1982)).
101. Id. at 1473 (citing Bernal v. Fainter, 467 U.S. 216, 219 (1984); Graham v. Richardson, 403 U.S. 365 (1971); Hernandez v. Texas, 347 U.S. 475 (1954)).
102. Id. at 1473.
103. Id. (citing Nyquist v. Mauclet, 432 U.S. 1, 7 n.8 (1977); Mathews v. Diaz, 426 U.S. 67, 84-85 (1976); Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.10 (9th Cir. 1980), cert. denied, 450 U.S. 959 (1981)).
104. Id.
105. 479 F. Supp. 519, 522-23 (D. Alaska 1979) (upholding provisions of the Fishing Conservation and Management Act of 1976, which distinguished between citizens and noncitizens, as essential to the conduct of foreign relations).
106. Lopez-Flores, 63 F.3d at 1474-75.
107. Id. at 1472.
108. Id. (quoting PRESIDENT'S MESSAGE, supra note 58) (internal quotation marks omitted).
109. Id. at 1472-73. "Article 13 provides that '[t]his Convention shall not apply where the offense is committed within a single state, the hostage and the alleged offender are nationals of that State and the alleged offender is found in the territory of that State.' Hostage Taking Convention, art. XIII, T.I.A.S. No. 11081." Id. at 1473 n.2.
110. Id. at 1473.
111. There have been other reported undocumented immigrant smuggling cases in which the defendants were charged under the HTA, but the statute was not challenged on equal protection grounds See e.g., United States v. Peral-Cota, 988 F.2d 125 (9th Cir. 1993) (unpublished disposition); United States v. Chun Yen Chiu, 857 F. Supp. 353, 362 (D.N.J. 1993) (granting defendants' motions to suppress evidence). In one other opinion, the statute was challenged as an unconstitutional incursion upon Colorado's right to punish offenses committed within that state; that case was dismissed as procedurally defective and without merit. See United States v. Rutherford, 931 F.2d 64 (10th Cir. 1991) (unpublished disposition).
112. Lopez-Flores, 63 F.3d at 1475.
113. Id.
114. 944 p.2d 220 (5th Cir. 1991), cert. denied, 503 U.S. 965 (1992). In United States v. Carrion-Caliz, defendant Ramiro Carrion-Caliz appealed from his conviction on three counts of violating the HTA on the ground that the government failed to produce sufficient evidence to convict him. In early 1990, Carrion agreed to transport Luisa Amanda Cuaresma and three members of her family across the Texas-Mexico border so that the Cuaresmas could visit a relative in Miami, Florida. On March 18, 1990, Carrion and another individual, Santos, assisted the four family members across the Rio Grande River into the United States. Once there, the family members were secreted away and Carrion telephoned the Miami relative demanding more money for the members' release. Instead of paying the money, the relative traveled to Texas and contacted the local authorities. Under the supervision of U.S. officials, the relative arranged to deliver the ransom money to Carrion. When Carrion showed up to collect the money, he was arrested. At trial, Carrion was convicted on three counts of violating the HTA; he appealed to the Fifth Circuit, claiming that the government failed to produce sufficient evidence to convict him. Thus, the issue before the Fifth Circuit was similar to that before the Ninth. The court addressed the issue of how the HTA applied and whether the evidence in that case was sufficient to convict Carrion. Specifically, the Fifth Circuit identified the essential elements of a conviction for hostage taking by examining the plain language of the statute and then looking to decisions under the Federal Kidnapping Statute for interpretative guidance. However, the case also contains interesting dicta suggesting that an international nexus should underlie an HTA prosecution: Because it deals with international acts of kidnapping or hostage taking, the Hostage Taking Act applies only to acts of kidnapping or hostage taking which have some international aspect or involve the United States government. If the act of kidnapping or hostage taking at issue does not involve the United States government, and has no international aspect, then the Hostage Taking Act does not apply. Id. at 224 (emphasis added). As discussed below, the district court in United States v. Pacheco construed the language in Carrion broadly so that "international" simply means that a noncitizen is either the hostage-taker or hostage in a kidnapping case. See infra subpart IV.C.
115. Lopez-Flores, 63 F.3d at 1476. By the plain terms of the statute, a conviction under the Hostage Taking Act requires the Government to show that the defendant 1) seized or detained another person, 2) threatened to kill, injure, or continue to detain that person, 3) with the purpose of compelling a third person or governmental entity to act in some way, or to refrain from acting in some way. Id. (quoting Carrion-Caliz, 944 F.2d at 223).
116. Id. (quoting Legislative Initiatives Hearings, 98th Cong., 2d Sess. 48-49 (1984) (statement of Victoria Toensing, Deputy Assistant Attorney General)).
117. Id.
118. Id.
119. No. 95 Cr. 129 (KMW), 1995 U.S. Dist. LEXIS 18399, at *1 (S.D.N.Y. Dec. 13, 1995).
120. Id. at *3.
121. Id. at *7-*9.
122. The court noted that although courts generally defer to the political branches of government with respect to foreign policy issues, enabling legislation containing an impermissible classification would not survive rational basis scrutiny simply because an international treaty required it. Id. at *10 (citing Boos v. Barry, 485 U.S. 312, 324 (1988); Reid v. Covert, 354 U.S. 1, 16 (1957)).
123. Id. at *10-*13. "The need to comply with the Treaty while not at the same time violating the Tenth Amendment does, in this case, constitute a legitimate governmental purpose for the use of the classification. Moreover, the use of the alienage classification in the Act does rationally further this purpose." Id. at *12-*13.
124. Id. at *14-*15.
125. Id. at *13-*14 (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985)).
126. Id. at *12-*13.
127. Id. at *1.
128. 902 F. Supp. 469, 470 (S.D.N.Y. 1995).
129. Id.
130. Id.
131. Id.
132. Id.
133. Id.
134. Id.
135. Id.
136. Id.
137. Id. at 472 (citing Lopez-Flores, 63 F.3d at 1473).
138. Id.
139. Id.
140. Id. at 472-73 (citing H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 248-49 (1989); United States v. Bufalino, 576 F.2d 446, 452 (2d Cir.), cert. denied, 439 U.S. 928 (1978)). Although the court did not cite these decisions, this rationale was essentially the same approach taken by the Fifth Circuit in Carrion and the Ninth Circuit in Lopez-Flores in deciding whether the Act applied to undocumented immigrant smuggling. See supra subpart IV.A.
141. Id. at 473.
142. Id.
143. The Fifth Circuit language was as follows: Because it deals with international acts of kidnapping or hostage taking, the Hostage Taking Act applies only to acts of the United States government. If the act of kidnapping or hostage taking at issue does not involve the United States government, and has no international aspect, then the Hostage Taking Act does not apply. Carrion, 944 F.2d at 224.
144. Pacheco, 902 F. Supp. at 473. This interpretation is consistent with the district court's reading of Carrion in United States v. Lin, 881 F. Supp. 34, 36 (D.D.C. 1995) (noting that language in Carrion was dictum and that if the offender or the detainee was a noncitizen or the detainee was recovered outside the U.S., then the case would have an "international aspect").
145. "In other words, the 'international aspect' that the court referred to is simply the fact that either a defendant or the victim is not a United States citizen." Pacheco, 902 F. Supp. at 473.
146. Indeed, in their hornbook on constitutional law, Professors John Nowak and Ronald Rotunda indicate that while Congress's powers over foreign relations and immigration overlap, these powers are not coextensive. Aside from the fact that Congress's immigration power derives specifically from Article I, Section 8, Clause 4 of the Constitution, Nowak and Rotunda suggest that this same power emanates from Congress's foreign relations power. U.S. CONST., art. I, § 8, cl. 4; JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW § 6.3, at 203 (4th ed. 1991) ("This broad 'foreign affairs power' has been used as a basis for a wide variety of congressional legislation. Alien immigration and registration laws were promulgated on the strength of the 'foreign affairs power.'"). For example, a noncitizen who commits a felony will likely be the concern of the immigration authorities under the immigration code, but the felonious act may not necessarily implicate foreign relations. Conversely, Congress may pass foreign affairs legislation that may distinguish between citizen and noncitizen, but such legislation may not necessarily affect United States immigration policy. See, e.g., United States v. Tsuda Maru, 479 F. Supp. 519 (D. Alaska 1979).
147. Any inferences regarding the international nature of the alleged drug trafficking would be pure speculation at this point. See Pacheco, 902 F. Supp. at 469 (discussing facts of drug bust).
148. Chen I, No. 94 Cr. 719 (DLC), 1995 U.S. Dist. LEXIS 8560, at *2-*3 (S.D.N.Y. June 21, 1995).
149. Id. These defendants were also charged with several other counts arising out of a conspiracy to commit a murder-for-hire during the period from 1990 through June 1991. Id. at *2.
150. Chen II, 905 F. Supp. 160, 162 (S.D.N.Y. 1995). In addition, the defendants contended that the HTA was not essential to the implementation of the HTC, and therefore, Congress's passing of this legislation under the Necessary and Proper Clause was invalid. Further, the defendants challenged the statute as violating the concept of federalism, presumably under the Tenth Amendment. Id. at 163. An examination of these arguments is beyond the scope of this Article. But see supra note 16 (referring to commentary on preemption and federalism concerns).
151. The court also noted the Carrion court's ruling that the HTA applied to noncitizen smuggling cases. Id. at 165 n.15 (citing Lopez-Flores, 63 F.3d at 1468; Carrion-Caliz, 944 F.2d at 220).
152. Id. at 168 (citing PRESIDENT'S MESSAGE, supra note 58, at 1).
153. Chen I, No. 94 Cr. 719 (DLC), 1995 U.S. Dist. LEXIS 8560, at *4 n.3.
154. Id. (citing Abbate v. United States, 359 U.S. 187, 195 (1959)); see also BROOKS ET AL., supra note 4, at 617 (discussing the permissibility of consecutive state and federal prosecutions of the same defendant in the context of the trial of the Los Angeles Police Department officers accused of beating motorist Rodney King).
155. See supra subpart III.A.
156. 115 S. Ct. 2097 (1995).
157. 473 U.S. 432 (1985).
158. 426 U.S. 67, 82-84 (1976).
159. Id. at 81.
160. See, e.g., Gilbert Paul Carrasco, Congressional Arrogation of Power: Alien Constellation in the Galaxy of Equal Protection, 74 B.U. L. REV. 591, 603 & n.52 (1994) (arguing that the Mathews court failed to articulate a viable reason for why state and federal laws would be subject to different levels of scrutiny); Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023, 1062 (1979) (arguing that a classification cannot be suspect when the states employ it, yet not suspect when invoked by the federal government); David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 STAN. L. REV. 1069, 1089 (1979) (same). Professor Linda Bosniak suggests that this apparent schism in the Court's treatment of alienage classifications stems from the inherent tension between the need to develop a coherent immigration policy and the desire to treat similarly situated individuals equally under the law: Scholars describe the law of alien status as structured by a fundamental doctrinal division between immigration law's "inside" and its "outside." "Inside" immigration law aliens are said to be subject to substantially unconstrained government power by way of the "plenary power doctrine." "Outside" immigration law, in contrast, alien status is characterized as largely insulated from such unconstrained power; instead, the treatment of aliens is said to be governed by the norms of equal personhood. . . . [W]hile the conventional distinction between immigration law's inside and outside is an understandable response to the structure of the doctrine, it tends to obscure the complex and contested nature of the status of aliens on the so-called "outside," and it tends to obscure the fact that the "inside" and "outside" are often not pregiven doctrinal locations but disputed zones whose exact parameters are extremely controversial. Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. REV. 1047, 1058 (1994).
161. See, e.g., Gilbert Paul Carrasco, Congressional Arrogation of Power: Alien Constellation in the Galaxy of Equal Protection, 74 B.U. L. REV. 591, 603 & n.52 (1994) (arguing that the Mathews court failed to articulate a viable reason for why state and federal laws would be subject to different levels of scrutiny); Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023, 1062 (1979) (arguing that a classification cannot be suspect when the states employ it, yet not suspect when invoked by the federal government); David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 STAN. L. REV. 1069, 1089 (1979) (same). Professor Linda Bosniak suggests that this apparent schism in the Court's treatment of alienage classifications stems from the inherent tension between the need to develop a coherent immigration policy and the desire to treat similarly situated individuals equally under the law: Scholars describe the law of alien status as structured by a fundamental doctrinal division between immigration law's "inside" and its "outside." "Inside" immigration law aliens are said to be subject to substantially unconstrained government power by way of the "plenary power doctrine." "Outside" immigration law, in contrast, alien status is characterized as largely insulated from such unconstrained power; instead, the treatment of aliens is said to be governed by the norms of equal personhood. . . . [W]hile the conventional distinction between immigration law's inside and outside is an understandable response to the structure of the doctrine, it tends to obscure the complex and contested nature of the status of aliens on the so-called "outside," and it tends to obscure the fact that the "inside" and "outside" are often not pregiven doctrinal locations but disputed zones whose exact parameters are extremely controversial. Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. REV. 1047, 1058 (1994).
162. See, e.g., Gilbert Paul Carrasco, Congressional Arrogation of Power: Alien Constellation in the Galaxy of Equal Protection, 74 B.U. L. REV. 591, 603 & n.52 (1994) (arguing that the Mathews court failed to articulate a viable reason for why state and federal laws would be subject to different levels of scrutiny); Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023, 1062 (1979) (arguing that a classification cannot be suspect when the states employ it, yet not suspect when invoked by the federal government); David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 STAN. L. REV. 1069, 1089 (1979) (same). Professor Linda Bosniak suggests that this apparent schism in the Court's treatment of alienage classifications stems from the inherent tension between the need to develop a coherent immigration policy and the desire to treat similarly situated individuals equally under the law: Scholars describe the law of alien status as structured by a fundamental doctrinal division between immigration law's "inside" and its "outside." "Inside" immigration law aliens are said to be subject to substantially unconstrained government power by way of the "plenary power doctrine." "Outside" immigration law, in contrast, alien status is characterized as largely insulated from such unconstrained power; instead, the treatment of aliens is said to be governed by the norms of equal personhood. . . . [W]hile the conventional distinction between immigration law's inside and outside is an understandable response to the structure of the doctrine, it tends to obscure the complex and contested nature of the status of aliens on the so-called "outside," and it tends to obscure the fact that the "inside" and "outside" are often not pregiven doctrinal locations but disputed zones whose exact parameters are extremely controversial. Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. REV. 1047, 1058 (1994).
163. See, e.g., Gilbert Paul Carrasco, Congressional Arrogation of Power: Alien Constellation in the Galaxy of Equal Protection, 74 B.U. L. REV. 591, 603 & n.52 (1994) (arguing that the Mathews court failed to articulate a viable reason for why state and federal laws would be subject to different levels of scrutiny); Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 COLUM. L. REV. 1023, 1062 (1979) (arguing that a classification cannot be suspect when the states employ it, yet not suspect when invoked by the federal government); David F. Levi, Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 STAN. L. REV. 1069, 1089 (1979) (same). Professor Linda Bosniak suggests that this apparent schism in the Court's treatment of alienage classifications stems from the inherent tension between the need to develop a coherent immigration policy and the desire to treat similarly situated individuals equally under the law: Scholars describe the law of alien status as structured by a fundamental doctrinal division between immigration law's "inside" and its "outside." "Inside" immigration law aliens are said to be subject to substantially unconstrained government power by way of the "plenary power doctrine." "Outside" immigration law, in contrast, alien status is characterized as largely insulated from such unconstrained power; instead, the treatment of aliens is said to be governed by the norms of equal personhood. . . . [W]hile the conventional distinction between immigration law's inside and outside is an understandable response to the structure of the doctrine, it tends to obscure the complex and contested nature of the status of aliens on the so-called "outside," and it tends to obscure the fact that the "inside" and "outside" are often not pregiven doctrinal locations but disputed zones whose exact parameters are extremely controversial. Linda S. Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. REV. 1047, 1058 (1994).
164. 403 U.S. 365 (1971).
165. Id. at 372.
166. "The equal protection analysis . . . involves significantly different considerations because it concerns the relationship between aliens and the States rather than between aliens and the Federal Government." Mathews, 426 U.S. at 84-85.
167. 115 S. Ct. 2097 (1995).
168. Id. at 2113.
169. Id. at 2108 (citing Weinberger v. Wiesenfield, 420 U.S. 636, 638 n.2 (1975) ("This Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment."); United States v. Paradise, 480 U.S. 149, 166 n.16 (1987) (Brennan, J., concurring) ("[T]he reach of the equal protection guarantee of the Fifth Amendment is coextensive with that of the Fourteenth.")); Buckley v. Valeo, 424 U.S. 1, 93 (1976) ("Equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."). Earlier in its opinion, the Court set forth the difference between the language from which equal protection is derived in the Fifth Amendment versus the Fourteenth: Adarand's claim arises under the Fifth Amendment to the Constitution, which provides that "No person shall . . . be deprived of life, liberty, or property, without due process of law." Although this Court has always understood that Clause to provide some measure of protection against arbitrary treatment by the Federal Government, it is not as explicit a guarantee of equal treatment as the Fourteenth Amendment, which provides that "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Adarand, 115 S. Ct. at 2105-06.
170. Adarand, 115 S. Ct. at 2106-08;
171. see, e.g., Bolling v. Sharpe, 347 U.S. 497, 500 (1954) ("In view of [the] decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.").
172. Adarand, 115 S. Ct. at 2108 (citing Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 101-02 n.21 (1976) (discussing Congress's plenary power over immigration)).
173. Id.
174. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a
175. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
176. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
177. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
178. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
179. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
180. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
181. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
182. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
183. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
184. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
185. By 1990, sixteen states had enacted "English-only" laws, which at least one commentator has argued are likely prompted by the increasing number of nonwhite immigrants from Asia and Latin America. Michele Arington, Note, English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights, 7 J.L. & POL. 325, 325-27 (1991). Others see "English- only" laws as beneficial both for maximizing opportunities for the new immigrant as well as unifying a country divided by an over-emphasis on multiculturalism and diversity. Joan Beck, Soothing Words: Committing to a Common Language Will Strengthen America, CHI. TRIB., Sept. 10, 1995, at 19. Interestingly, Arizona's "English-only" law has recently been slated for review by the Supreme Court; unfortunately, the Court is unlikely to reach the merits of the law, but will likely restrict its review to whether the private sponsors of the bill have standing to assert the law's validity after it was struck down by a federal court in 1990. Linda Greenhouse, Justices to Review Effort to Make English the Official Language, N.Y. TIMES, Mar. 26, 1996, at A14. For further scholarly treatment of "English-only" laws, see, e.g., B. PIATT, ¿ONLY ENGLISH?: LAW AND LANGUAGE POLICY IN THE UNITED STATES (1990); Juan F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and Official English, 77 MINN. L. REV. 269, 356 (1992) (arguing that "official English laws" violate equal protection); Juan F. Perea, English-Only Rules and the Right to Speak One's Primary Language in the Workplace, 23 U. MICH. J.L. REF. 265, 268 (1990) (arguing that speaking one's non-English "primary language" in the workplace should be protected under Title VII). Several proposed state laws include restrictions on driver's licenses and foster care for children. See Jerry Gillam, DMV, INS to Check New License Applicants, L.A. TIMES, June 22, 1994, at A3 (driver's licenses); Charisse L. Grant, HRS to Issue Guidelines for Undocumented Immigrant Children, MIAMI HERALD, Apr. 27, 1994, at 3B (foster care). At the federal level, Lamar Smith has advocated the adoption of a national law patterned after Proposition 187. Ronald Bronnstein et al., From Tax Cuts to School Prayer: A Primer on the Leading Issues, L.A. TIMES, Jan. 1, 1995, at A26. While Congress has yet to pass such a rule, the House of Representatives recently approved a bill that would allow states to pass laws denying public education to undocumented immigrant children. Eric Schmitt, House Approves Ending Schooling of Illegal Aliens, N.Y. TIMES, Mar. 21, 1996, at D25. Not surprisingly, the impetus for such legislation stems from the fact that immigrants are often wrongly accused as the source of societal ills such as unemployment and income inequality. See, e.g., Richard A. Boswell, Restrictions on Non-Citizens' Access to Public Benefits: Flawed Premise, Unnecessary Response, 42 UCLA L. REV. 1475, 1476 (1995) ("The recent debates and political initiatives relating to immigrant access to public benefits are part of a recurrent historical pattern in which increased attention has been focused on immigrants during periods of perceived economic downturn."); Robert Wright, Who's Really to Blame?, TIME, Nov. 6, 1995, at 32-33 ("Job-stealing aliens and job-exporting CEOs are easy targets, but growing income inequality has deeper roots.").
186. Graeme Zielinski, Prop. 187 May Spur New Immigrant Limits; Some Republicans See Mandate for National Change, S.F. EXAMINER, Nov. 12, 1994, at A1.
187. See CAL. EDUC. CODE § 48215(a) (West Supp. 1996); CAL. HEALTH & SAFETY CODE § 130(a) (West Supp. 1996).
188. Neuman, supra note 4, at 1451; see also Letter to the Editor, L.A. TIMES, Oct. 30, 1994, at B16 ("[T]he state of California is not a province of Mexico. The victory of Proposition 187 will be proof that the state of California belongs to the United States of America."); Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629 (1995).
189. Neuman, supra note 4, at 1451; see also Letter to the Editor, L.A. TIMES, Oct. 30, 1994, at B16 ("[T]he state of California is not a province of Mexico. The victory of Proposition 187 will be proof that the state of California belongs to the United States of America."); Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629 (1995).
190. Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class, 42 UCLA L. REV. 1509, 1545-46 (1995) ("The stereotypical 'illegal alien,' the term that replaced 'wetback,' is a Mexican who has snuck into the United States in the dark of night. The image in the minds of many is that of a poor, brown, unskilled, young male. . . . Despite the stereotype, only about thirty-nine percent (1.3 million) of the total [number of undocumented immigrants in 1992] were from Mexico.").
191. Politicians have also capitalized on this growing xenophobia in their public appearances: California Governor Pete Wilson voiced his support for Proposition 187 by stating that "[w]e cannot educate every child from here to Tierra del Fuego." Daniel M. Weintraub & Bill Stall, Wilson Would Expel Illegal Immigrants from Schools, L.A. TIMES, Sept. 16, 1994, at A1. Even more stridently, 1996 Republican presidential candidate Pat Buchanan had this to say about race and immigration in 1991: "If we had to take a million immigrants in, say, Zulus, next year, or Englishmen, and put them in Virginia, what group would be easier to assimilate?" Richard Lacayo, The Case Against Buchanan, TIME, Mar. 4, 1996, at 26. Indeed, Buchanan has also described the issue of undocumented immigration at the U.S.-Mexico border as an "invasion": "That's what's taking place when one, two, three million people walk across our borders every year." Steven A. Holmes, Candidates Criticized for Sound-Bite Approach to Problem of Illegal Aliens, N.Y. TIMES, Mar. 7, 1996, at B10. However, Jessica Vaughan, assistant director for the Center for Immigration Studies in Washington, describes Buchanan's estimates as sheer "baloney" and states that the actual number is closer to 400,000. Id.
192. Politicians have also capitalized on this growing xenophobia in their public appearances: California Governor Pete Wilson voiced his support for Proposition 187 by stating that "[w]e cannot educate every child from here to Tierra del Fuego." Daniel M. Weintraub & Bill Stall, Wilson Would Expel Illegal Immigrants from Schools, L.A. TIMES, Sept. 16, 1994, at A1. Even more stridently, 1996 Republican presidential candidate Pat Buchanan had this to say about race and immigration in 1991: "If we had to take a million immigrants in, say, Zulus, next year, or Englishmen, and put them in Virginia, what group would be easier to assimilate?" Richard Lacayo, The Case Against Buchanan, TIME, Mar. 4, 1996, at 26. Indeed, Buchanan has also described the issue of undocumented immigration at the U.S.-Mexico border as an "invasion": "That's what's taking place when one, two, three million people walk across our borders every year." Steven A. Holmes, Candidates Criticized for Sound-Bite Approach to Problem of Illegal Aliens, N.Y. TIMES, Mar. 7, 1996, at B10. However, Jessica Vaughan, assistant director for the Center for Immigration Studies in Washington, describes Buchanan's estimates as sheer "baloney" and states that the actual number is closer to 400,000. Id.
193. Politicians have also capitalized on this growing xenophobia in their public appearances: California Governor Pete Wilson voiced his support for Proposition 187 by stating that "[w]e cannot educate every child from here to Tierra del Fuego." Daniel M. Weintraub & Bill Stall, Wilson Would Expel Illegal Immigrants from Schools, L.A. TIMES, Sept. 16, 1994, at A1. Even more stridently, 1996 Republican presidential candidate Pat Buchanan had this to say about race and immigration in 1991: "If we had to take a million immigrants in, say, Zulus, next year, or Englishmen, and put them in Virginia, what group would be easier to assimilate?" Richard Lacayo, The Case Against Buchanan, TIME, Mar. 4, 1996, at 26. Indeed, Buchanan has also described the issue of undocumented immigration at the U.S.-Mexico border as an "invasion": "That's what's taking place when one, two, three million people walk across our borders every year." Steven A. Holmes, Candidates Criticized for Sound-Bite Approach to Problem of Illegal Aliens, N.Y. TIMES, Mar. 7, 1996, at B10. However, Jessica Vaughan, assistant director for the Center for Immigration Studies in Washington, describes Buchanan's estimates as sheer "baloney" and states that the actual number is closer to 400,000. Id.
194. In Perez v. Brownell, the Court directly addressed the issue of the source of Congress's foreign relations power: [W]hat is the source of power on which Congress must be assumed to have drawn? Although there is in the Constitution no specific grant to Congress of power to enact legislation for the effective regulation of foreign affairs, there can be no doubt of the existence of this power in the law-making organ of the Nation. . . . [A] Federal Government to conduct the affairs of the Nation must be held to have granted that Government the powers indispensable to its functioning effectively in the company of sovereign nations. 356 U.S. 44, 57 (1958). In contrast, § 5 of the Fourteenth Amendment specifically provides that "[t]he Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. CONST. amend. XIV, § 5. Thus, on the face of the text, Congress may invoke § 5 to enforce the equal protection provision of § 1 which states in pertinent part: "nor shall any State . . . deny to any person . . . the equal protection of the laws." U.S. CONST. amend. XIV, § 1. Additionally, the texts of the Thirteenth and Fifteenth Amendments also provide explicit support for the notion that Congress may legislate in the area of race relations. See U.S. CONST. amend. XIII, §§ 1-2 ("Neither slavery nor involuntary servitude . . . shall exist within the United States."; "Congress shall have power to enforce this article by appropriate legislation."); U.S. CONST. amend. XV, §§ 1-2 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."; "Congress shall have power to enforce this article by appropriate legislation.").
195. 115 S. Ct. at 2114 (citing Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 605-06 (1990) (O'Connor, J., dissenting); Richmond v. J.A. Croson Co., 488 U.S. 469, 486-93 (1989) (O'Connor, J.); id. at 518-19 (Kennedy, J., concurring); id. at 521-24 (Scalia, J., concurring); Fullilove v. Klutznick, 448 U.S. 448, 472-73 (1980) (Burger, C.J.); id. at 500-02 & nn.2-3, 515 & n.14 (Powell, J., concurring); id. at 526-27 (Stewart, J., dissenting)).
196. No. 95 Cr. 129 (KMW), 1995 U.S. Dist. LEXIS 18399, at *14-*15.
197. 473 U.S. 432 (1985).
198. Id. at 435.
199. Id. at 450; accord Schneider v. Rusk, 377 U.S. 163, 168 (1964) ("[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is 'so unjustifiable as to be violative of due process.'" (citing Bolling, 347 U.S. at 499)). Justice Stevens eloquently captured the thrust of the Cleburne Court's equal protection analysis in his concurrence: The rational-basis test, properly understood, adequately explains why a law that deprives a person of the right to vote because his skin has a different pigmentation than that of other voters violates the Equal Protection Clause. It would be utterly irrational to limit the franchise on the basis of height or weight; it is equally invalid to limit it on the basis of skin color. None of these attributes has any bearing at all on the citizen's willingness or ability to exercise that civil right. 473 U.S. at 452-53 (Stevens, J., concurring). In his partial dissent, Justice Marshall agreed that the rights of the mentally retarded should be protected, but argued that the majority's analysis was really a form of heightened scrutiny, and that the ordinance would have survived the application of the traditional deferential rational basis test. Id. at 456 (Marshall, J., dissenting in part); see also Gayle Lynn Pettinga, Note, Rational Basis with Bite: Intermediate Scrutiny by Any Other Name, 62 IND. L.J. 779 (1987). Aside from its decision in Cleburne, the Supreme Court has rarely utilized the rational basis test to strike down local legislation of a social or economic nature. See Hooper v. Bernalillo County Assessor, 472 U.S. 612, 621-22 (1985); Zobel v. Williams, 457 U.S. 55, 65 (1982); United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534-36 (1973). Indeed, Professor Laurence Tribe places little stock in this so-called "rational basis with bite" test: "This sporadic move away from near-absolute deference to legislative judgment seems to be a judicial response to statutes creating distinctions among classes of residents based on factors the Court evidently regards as in some sense 'suspect' but appears unwilling to label as such." LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 16-3, at 1445 (2d ed. 1988).
200. Graham, 403 U.S. at 372 ("[C]lassifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close judicial scrutiny."); see also Plyler, 457 U.S. at 230 ("If the State is to deny a discrete group of innocent [undocumented] children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest.").
201. See supra notes 158-63 and accompanying text.
202. "In general, the principle of 'comity' is that the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect." Brown v. Babbitt Ford, Inc., 571 P.2d 689, 695 (Ariz. Ct. App. 1977). More recently, the concept of "comity" has been invoked beyond state and federal government relations to Native American and state government relations, and international relations. See, e.g., Barbara Ann Atwood, Fighting over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REV. 1051, 1088 (1989) (arguing that through the comity doctrine or statutory interpretation, "voluntary recognition by state courts of the competence and preferred role of tribal courts in reservation-based child custody disputes would eliminate" existing jurisdictional quarrels between the two); Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 4-6 (1991) (arguing for a broader notion of comity in resolving international policy conflicts among sovereign states).
203. "In general, the principle of 'comity' is that the courts of one state or jurisdiction will give effect to the laws and judicial decisions of another state or jurisdiction, not as a matter of obligation, but out of deference and mutual respect." Brown v. Babbitt Ford, Inc., 571 P.2d 689, 695 (Ariz. Ct. App. 1977). More recently, the concept of "comity" has been invoked beyond state and federal government relations to Native American and state government relations, and international relations. See, e.g., Barbara Ann Atwood, Fighting over Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REV. 1051, 1088 (1989) (arguing that through the comity doctrine or statutory interpretation, "voluntary recognition by state courts of the competence and preferred role of tribal courts in reservation-based child custody disputes would eliminate" existing jurisdictional quarrels between the two); Joel R. Paul, Comity in International Law, 32 HARV. INT'L L.J. 1, 4-6 (1991) (arguing for a broader notion of comity in resolving international policy conflicts among sovereign states).
204. See Chen I, No. 94 Cr. 719 (DLC), 1995 U.S. Dist. LEXIS 8560, at *3 n.3.
205. See supra subpart II.D.
206. See supra subpart V.A.
207. See, e.g., Bounds v. Smith, 430 U.S. 817, 825 (1977) ("[T]he cost of protecting a constitutional right cannot justify its total denial.").
208. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti-terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
209. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply
210. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS-DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
211. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti-Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
212. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
213. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
214. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
215. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
216. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
217. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
218. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
219. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
220. Indeed, on April 24, 1996, President Clinton signed into law Congress's proposed anti- terrorism bill. Alison Mitchell, Clinton Signs Measure on Terrorism and Death Penalty Appeals, N.Y. TIMES, Apr. 25, 1996, at A18. Both the anti-terrorism and immigration bills have been the subject of much reporting and commentary in the press. See, e.g., William Branigin & John E. Yang, House Passes Major Immigration Bill Without Reducing Legal Limits, WASH. POST, Mar. 22, 1996, at A10; Mae M. Cheng, The New New Yorkers: Acts Target Legal Immigration, NEWS- DAY, Mar. 13, 1996, at A31; Robert L. Jackson, House Approves Amendment to Weaken Anti- Terrorism Bill, L.A. TIMES, Mar. 14, 1996, at 4; Carol Jouzaitis, Senate Immigration Bill Is Split to Define Legal, Illegal Issues: Foes of Committee's Vote Fear It Is a Maneuver to Dilute Legislation, CHI. TRIB., Mar. 15, 1996, at 6; Stephen Labaton, House Passes Narrow Counterterrorism Bill Unlike Senate's, N.Y. TIMES, Mar. 15, 1996, at A18; Robert Marquand & Sam Walker, Revised Antiterrorism Bill Rides Again, CHRISTIAN SCIENCE MONITOR, Mar. 12, 1996, at 4; Eric Schmitt, In Immigration Bill Debate, Divisions and Odd Alliances, N.Y. TIMES, Feb. 26, 1996, at A1; Terrorism Bill Diluted as House Prepares to Approve It, STAR TRIB. (Minneapolis-St. Paul), Mar. 14, 1996, at 04A. For scholarly commentary on the anti-terrorism bills, see Peter J. O'Connor, Developments in the Legislative Branch, 9 GEO. IMMIGR. L.J. 619, 627 (1995); Melissa A. O'Loughlin, Note, Terrorism: The Problem and the Solution - The Comprehensive Terrorism Prevention Act of 1995, 22 J. LEGIS. 103 (1996). One commentator has suggested that the anti-terrorism bill would place too much power in the hands of the federal government and would wreak havoc on our legal and constitutional traditions. For example, "[t]he bill would . . . give far-reaching power to the Secretary of State. He could designate any organization abroad as 'terrorist' and thereby make it a crime for Americans to support its activities even if they are wholly legal and even charitable." Anthony Lewis, How Terrorism Wins, N.Y. TIMES, Mar. 11, 1996, at A17. In an interesting insight into the intersection of race and immigration, another commentator has argued that the proposed bill limiting legal immigration may not address the larger problem of how immigrants displace low-skilled African-American workers in the inner cities. Specifically, he suggests that "[a]lleviating the economic distress of low-skilled blacks requires attacking two problems: the unwillingness of employers to hire them and the lack of meaningful training. Putting roadblocks in the paths of immigrants simply won't do the trick." Roger Waldinger, The Jobs Immigrants Take, N.Y. TIMES, Mar. 11, 1996, at A17.
221. Of course, there are some situations in which anti-terrorism and immigration overlap. For example, early last year, the House of Representatives voted to strike a provision of the anti-terrorism bill that made it easier to deport undocumented immigrants suspected of terrorism. Stephen Labaton, House Kills Sweeping Provisions in Counterterrorism Legislation, N.Y. TIMES, Mar. 14, 1996, at A1; see also Federal Document Clearinghouse, Senate Judiciary Committee Begins Hearings on Anti-Terrorism Bill, 1995 WL 14248276 (Apr. 28, 1995) (discussing New Hampshire Senator Bob Smith's proposal to expedite the deportation of noncitizen terrorists).
222. Of course, there are some situations in which anti-terrorism and immigration overlap. For example, early last year, the House of Representatives voted to strike a provision of the anti- terrorism bill that made it easier to deport undocumented immigrants suspected of terrorism. Stephen Labaton, House Kills Sweeping Provisions in Counterterrorism Legislation, N.Y. TIMES, Mar. 14, 1996, at A1; see also Federal Document Clearinghouse, Senate Judiciary Committee Begins Hearings on Anti-Terrorism Bill, 1995 WL 14248276 (Apr. 28, 1995) (discussing New Hampshire Senator Bob Smith's proposal to expedite the deportation of noncitizen terrorists).