Laboratories of bigotry? Devolution of the immigration power, equal protection, and federalism

New York University Law Review

Volumn 76, Issue 2, 2001, Pages 493-569

  Wishnie, Michael J ^a,b  

^a NEW YORK UNIVERSITY   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 26044436558     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (422)

1. United States v. Morrison, 529 U.S. 598 (2000) (invalidating civil remedy provision of Violence Against Women Act as unauthorized either by Commerce Clause or by Section 5 of Fourteenth Amendment).
2. See id. at 598 (invalidating portions of Violence Against Women Act as beyond scope of congressional authority under Commerce Clause or Section 5 of Fourteenth Amendment); Printz v. United States, 521 U.S. 898 (1997) (invalidating portions of Brady Handgun Violence Prevention Act on ground that Congress may not "commandeer" state executive officials); City of Boerne v. Flores, 521 U.S. 507 (1997) (invalidating portions of Religious Freedom Restoration Act as beyond scope of congressional authority under Section 5 of Fourteenth Amendment); United States v. Lopez, 514 U.S. 549 (1995) (invalidating Gun-Free School Zones Act as beyond scope of congressional authority under Commerce Clause); New York v. United States, 505 U.S. 144 (1992) (invalidating provision of Low-Level Radioactive Waste Policy Amendments Act on grounds that Congress may not "commandeer" state legislatures); see also Bd. of Trs. v. Garratt, No. 99-1240, 2001 WL 173556 (U.S. Feb. 21, 2001) (holding that Congress has not validly abrogated state sovereign immunity as to private disability discrimination suits for money damages); Kimel v. Bd. of Regents, 528 U.S. 62 (2000) (same, as to age discrimination suits in federal courts); Alden v. Maine, 527 U.S. 706 (1999) (same, as to private suit in state courts under Fair Labor Standards Act); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (same, as to trademark suits in federal courts); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999) (same, as to patent suits in federal courts); Seminole Tribe v. Florida, 517 U.S. 44 (1996) (same, as to suit by Native American tribe in federal court under Indian Gaming Regulatory Act).
3. To cite but one thoughtful assessment of judicial intervention to protect state interests, see Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 Colum. L. Rev. 215 (2000).
4. In addition to cases cited supra note 2, see, for example, Saenz v. Roe, 526 U.S. 489 (1999) (invalidating state durational residency requirement as condition of eligibility for public benefits as violative of right to travel protected by Privileges and Immunities Clause); Romer v. Evans, 517 U.S. 620 (1996) (invalidating state referendum repealing laws prohibiting discrimination based on sexual orientation and barring enactment of similar laws in future). Laurence Tribe has termed such judicial decisionmaking reasoning from "structural inference." Laurence H. Tribe, Saenz Sans Prophecy: Does the Privileges or Immunities Revival Portend the Future - Or Reveal the Structure of the Present?, 113 Harv. L. Rev. 110, 110 n.3 (1999).
5. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 724, 730 (1892) (upholding congressional act excluding Chinese immigrants); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1891) (same, as to deportation of "morally suspect" persons); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581 (1889) (same, as to exclusion of Chinese laborers).
6. Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Welfare Act or PRA), Pub. L. No. 104-193, 110 Stat. 2105 (codified in scattered sections of 8, 42 U.S.C.). Title IV of the Welfare Act is entitled "Restricting Welfare and Public Benefits for Aliens." Id. §§ 400-451, 110 Stat. at 2260-76.
7. The Congressional Budget Office estimated that approximately $23.7 billion of the $53.4 billion in total federal savings from the PRA over its first six years - a staggering forty-four percent - would derive from Title IV's anti-immigrant provisions. Cong. Budget Office, Federal Budgetary Implications of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, at 3 tbl.2 (1996); see also Charles Wheeler, The New Alien Restrictions on Public Benefits: The Full Impact Remains Uncertain, 73 Interpreter Releases 1245, 1248 & n.35 (1996) (citing Letter from Congressional Budget Office to Senator Pete Domenici, Chairman, Senate Budget Committee (Aug. 1, 1996));
8. Michael E. Fix & Karen Tumlin, Urban Inst., Welfare Reform and the Devolution of Immigrant Policy 5 & n.14 (1997), http://newfederalism.urban.org/html/anf_15.htm. Congressional restoration of Supplemental Security Income (SSI) benefits for some legal immigrants in the Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251, reduced the estimated federal savings by approximately $11.4 billion. Fix & Tumlin, supra, at 5.
9. The specific anti-immigrant provisions of the 1996 Welfare Act are discussed infra notes 106-10 and accompanying text.
10. Louisiana was the first state in the nation to do so. See Declaration of Emergency, 23 La. Reg. 24, 25 (1997) (terminating Medicaid for legal permanent residents effective January 1, 1997). Subsequently, Alabama terminated Temporary Assistance to Needy Families (TANF) to permanent residents and Wyoming terminated Medicaid to permanent residents. Ala. Admin. Code r. 660-2-2-.17 (1998) (terminating eligibility of noncitizens as of December 21, 1996 except for those required to be eligible by PRA); Code of Wyo. R. 049-183-002, § 8(b) (Weil's, Lexis through 2000 revision) (restricting Medicaid eligibility of noncitizens to those required to be eligible by PRA or eligible for SSI); see also Wendy Zimmermann & Karen C. Tumlin, Patchwork Policies: State Assistance for Immigrants Under Welfare Reform 60 tbl.5 (Urban Inst., Occasional Paper No. 24, 1999) (showing which states have denied assistance to immigrants), http://newfederalism.urban.org/pdf/ occ24.pdf. In addition, several states have enacted more onerous eligibility requirements for legal immigrants than for citizens. See, e.g., Conn. Gen. Stat. Ann. § 17b-116(e) (West Supp. 2000) (six-month residency requirement for immigrants); Wash. Rev. Code Ann. § 74.08A.100 (West Supp. 2001) (twelve-month residency requirement for immigrants only); Md. Regs. Code tit. 07, § 07.03.03.07(B)(4) (2000) (legal immigrants newly arrived in Maryland receive no state TANF benefits for twelve months if moved from outside country or from state without state-substitute TANF benefits); see also Zimmermann & Tumlin, supra, at 28 (discussing various other state restrictions). Others have chosen to condition immigrant eligibility for benefits on the applicant's willingness to pursue naturalization. See, e.g., Conn. Gen. Stat. Ann. § 17b-116(e) (naturalization requirement for general assistance); N.J. Stat. Ann. § 44:10-48(a) (West Supp. 2000) (naturalization requirement for TANF and General Assistance programs); see also Zimmermann & Tumlin, supra, at 28-29 (discussing effect of naturalization requirements). In addition, Indiana now imposes a shorter time limit for receipt of benefits on legal immigrants than on citizens. Compare Ind. Code Ann. § 12-14-2-5.1 (a) (West 2000) (two year AFDC eligibility generally), and id. § 12-15 (two year Medicaid eligibility), with id. § 12-14-2.5-2 (one year AFDC eligibility for permanent residents), and id. § 12-15-2-7, 12-15-2.5-2 (one year Medicaid eligibility for permanent residents). Finally, some states created programs to substitute for lost federal benefits but then limited these state-substitute programs only to certain permanent residents, or imposed eligibility restrictions on these state-substitute programs that do not apply to citizens in the continuing federal programs. See, e.g., N.Y. Soc. Serv. Law § 95(10)(b)(v) (McKinney Supp. 2001) (requiring immigrants eligible to naturalize to do so as condition of receipt of state food stamp replacement program); Zimmermann & Tumlin, supra at 29-30.
11. See infra notes 25-26, 127-29 and accompanying text.
12. 403 U.S. 365 (1971) (subjecting state welfare rules distinguishing between citizens and legal permanent residents to strict scrutiny).
13. See Bernal v. Fainter, 467 U.S. 216 (1984) (invalidating state citizenship requirement for appointment as notary public); Nyquist v. Mauclet, 432 U.S. 1 (1977) (same, as to state financial aid for postsecondary education); Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976) (same, as to civil engineering license); In re Griffiths, 413 U.S. 717 (1973) (same, as to admission to bar); Sugarman v. Dougall, 413 U.S. 634 (1973) (same, as to state civil service employment). The exception to the rule of strict scrutiny for state anti-immigrant discrimination is a state's citizenship requirement for jobs involving policymaking or exercises of significant discretion, which is scrutinized only for a rational basis. See, e.g., Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (deputy probation officers); Ambach v. Norwick, 441 U.S. 68 (1979) (elementary and secondary school teachers); Foley v. Connelie, 435 U.S. 291 (1978) (state troopers).
14. 426 U.S. 67, 82 (1976) (holding federal welfare rules distinguishing between citizens and legal permanent residents subject to rational basis review in equal protection challenge).
15. But see Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (holding citizenship requirement in federal civil service subject to rationality review, and invalidating requirement).
16. See Mathews, 426 U.S. at 84-87 (explaining different equal protection analysis applicable to state and federal anti-immigrant discrimination in light of "exclusive federal power" over immigration).
17. See PRA § 400(7), 8 U.S.C. § 1601(7) (Supp. V 1999); infra notes 100-05 and accompanying text.
18. See infra notes 43-53 and accompanying text.
19. See infra notes 54-85 and accompanying text.
20. The Court already has invalidated provisions of the 1996 Welfare Act regarding durational residency requirements. Saenz v. Roe, 526 U.S. 489 (1999) (holding that state and federal durational residency requirements violate right to travel). Unfortunately for the nation's approximately eleven million permanent resident aliens, see Immigration & Naturalization Serv., U.S. Dep't of Justice, State Population Estimates: Legal Permanent Residents and Aliens Eligible to Apply for Naturalization (1996), http://www.ins.usdoj.gov/ graphics/aboutins/statistics/lprest.htm, and millions of other legal immigrants, the Saenz Court implied that the right to travel is secured by the Privileges and Immunities Clauses, which protect only the "privileges and immunities of citizens," U.S. Const. art. IV, § 2 (emphasis added); U.S. Const. amend. XIV, § 1 (same, except reads "privileges or immunities"). For an account that grounds the constitutional right to travel in the Commerce Clause rather than the citizens-only Privileges and Immunities Clause,
21. see Stephen Loffredo, "If You Ain't Got the Do, Re, Mi": The Commerce Clause and State Residency Restrictions on Welfare, 11 Yale L. & Pol'y Rev. 147 (1993).
22. See infra Part III.
23. See cases cited supra notes 11-12.
24. See Martha F. Davis, Brutal Need: Lawyers and the Welfare Movement, 1960-1973, at 6 (1993) ("States adopted 400 new public welfare laws between 1917 and 1920 alone, creating a relatively modern and rational welfare system from the patchwork of philanthropic local initiative of the nineteenth century."); see also infra notes 342-43 and accompanying text.
25. See infra notes 115-24 (describing state legislative initiatives).
26. Only four states, Alabama, Louisiana, Pennsylvania, and Wyoming, have tried to terminate the eligibility of legal immigrants for TANF or Medicaid; no state yet has sought to deny legal immigrants eligibility for both programs. See supra note 9 (citing statutes); infra note 116 (same).
27. The National Association of State Budget Officers reports that in fiscal year 2000, all fifty states had a budget surplus, and thirty-six states had a surplus in excess of five percent of their spending. Nat'l Ass'n of State Budget Officers, The Fiscal Survey of States: December 2000, at 11 tbl.9 (2000), http://www.nasbo.org/topical/fall2000fiscalsurvey.pdf;
28. see Robert Pear, States Gather Big Surpluses, Benefit of a Strong Economy, N.Y. Times, Jan. 5, 2000, at A12.
29. But see David Firestone, Slowing Economy Forces Governors to Trim Budgets, N.Y. Times, Feb. 8,2001, at A1 ("With a swiftness that has taken many governors by surprise, the slowing economy has sharply reduced state tax revenues in the last few weeks, forcing a growing number of states around the South and Midwest to cut their budgets for the first time in a decade."). In addition to trends in the national and regional economies, states soon will be forced to address the consequences of time limits on federal welfare programs. The implementation of federal time limits in 2001 will place additional pressure on state welfare budgets.
30. See Raymond Hernandez, U.S. Welfare Limit May Put Thousands in Albany's Care, N.Y. Times, Mar. 21, 2000, at A1 (noting "prospect that New York taxpayers will have to pick up tens of millions of dollars in welfare costs once the federal time limits take hold" in late 2001);
31. Somini Sengupta, State's Poorest Facing Loss of U.S. Aid, N.Y. Times, Feb. 10, 2001, at B1 (noting that nearly one-third of New York welfare recipients are expected to lose benefits at end of 2001 because of federal time limits).
32. See, e.g., John Higham, Strangers in the Land: Patterns of American Nativism, 1860-1925, at 14-18,68-72 (4th ed. 1994) (tracing various episodes of nativism throughout American history and showing economy to be at least one factor in its emergence);
33. Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans 11-14, 331-35 (1989) (depicting experiences of Asians in America and setting forth history of racism).
34. Zimmermann & Tumlin, supra note 9, at 58 tbl.3 (estimating that 4.7 million noncitizens lived in poverty in United States in 1996).
35. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 603-04 (1889); see also Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 853-54 (1987).
36. Stephen H. Legomsky, Immigration Law and the Principle of Plenary Congressional Power, 1984 Sup. Ct. Rev. 255, 307.
37. See PRA § 400(7), 8 U.S.C. § 1601(7) (Supp. V 1999); see also infra notes 100-05 and accompanying text.
38. For over a century, the Supreme Court's immigration law jurisprudence has accepted federal discrimination not tolerated elsewhere in the law. See Mathews v. Diaz, 426 U.S. 67, 79-80 (1976) ("In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens."); see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (holding that INS generally does not violate First Amendment when it engages in selective enforcement of immigration laws based on disfavored speech or associational activities of noncitizens); Fiallo v. Bell, 430 U.S. 787 (1977) (upholding federal immigration discrimination based on gender). The "plenary power doctrine," holding immigration lawmaking largely immune from judicial scrutiny, has been criticized savagely. See, e.g., Gabriel J. Chin, Segregation's Last Stronghold: Race Discrimination and the Constitutional Law of Immigration, 46 UCLA L. Rev. 1 (1998) (condemning plenary power doctrine as product of nineteenth-century judicial commitment to racial separation); Henkin, supra note 28, at 863 ("Chinese Exclusion - its very name is an embarrassment - must go."); Legomsky, supra note 29, at 255-60 (arguing that Court has been oddly deferential in area of immigration);
39. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 Yale L.J. 545, 549 (1990) (arguing that plenary power doctrine has distorted immigration jurisprudence and forced courts to incorporate basic constitutional norms through statutory interpretation).
40. For example, at least nineteen cities and two states have passed laws restricting public procurement from companies that do business in Burma (Myanmar). Cf. Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288, 2293 & n.5 (2000) (holding state and local "Burma laws" preempted by federal statute); see also id. at 2301-02 (discussing state and local sanctions passed against South Africa in 1980s).
41. See, e.g., Curtis A. Bradley, The Treaty Power and American Federalism, 97 Mich. L. Rev. 390 (1998) (criticizing treaty power exceptionalism as plenary power vis-à-vis states);
42. Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997) (rejecting historical, structural, and normative justifications for federal common law of foreign relations);
43. Peter Spiro, Foreign Relations Federalism, 70 U. Colo. L. Rev. 1223 (1999) (describing obsolescence of foreign relations exclusivity).
44. But see Louis Henkin, Foreign Affairs and the U.S. Constitution 13 (2d ed. 1996) (defending federal supremacy in foreign affairs);
45. Martin S. Flaherty, Are We to Be a Nation? Federal Power vs. "States Rights" in Foreign Affairs, 70 U. Colo. L. Rev. 1277 (1999) (advocating renewed justification for federal foreign affairs authority over states).
46. The landmark decision is Zschernig v. Miller, 389 U.S. 429 (1968) (holding that dormant foreign affairs preemption bars application of state escheat statute requiring inquiry into East German system of government, as statute impermissibly involves state in foreign affairs). The Supreme Court declined to revisit Zschernig when recently offered the opportunity. See Crosby, 120 S. Ct. at 2294 n.8 (invalidating Massachusetts "Burma law" as preempted by federal Burma statute, but declining to rule on First Circuit's application of Zschernig dormant foreign affairs preemption doctrine to invalidate same state law).
47. See infra notes 205-09 and accompanying text.
48. See infra notes 100-05 and accompanying text.
49. See infra notes 45-52 and accompanying text.
50. See infra notes 89-96 and accompanying text.
51. See infra notes 54-85 and accompanying text.
52. Mathews v. Diaz, 426 U.S. 67, 81-84 (1976) (subjecting residency requirement in federal Medicare program that discriminates against legal immigrants to rational basis review).
53. Id. at 67 (upholding five-year residency requirement for permanent resident aliens in federal Medicare program); City of Chicago v. Shalala, 189 F.3d 598 (7th Cir. 1999) (affirming citizenship requirements in 1996 Welfare Reform Act), cert. denied, 120 S. Ct. 1530 (2000); Rodriguez v. United States, 169 F.3d 1342 (11th Cir. 1999) (same, as to Food Stamps programs under 1996 Welfare Reform Program); Kiev v. Glickman, 991 F. Supp. 1090, 1095-97 (D. Minn. 1998) (same); Abreu v. Callahan, 971 F. Supp. 799, 807-11 (S.D.N.Y. 1997) (same, as to Food Stamps and SSI); Cid v. S.D. Dep't of Soc. Servs., 598 N.W.2d 887, 891-93 (S.D. 1999) (same, as to TANF). But see Hampton v. Mow Sun Wong, 426 U.S. 88, 100-05 (1976) (invalidating federal Civil Service Commission regulation prohibiting employment of permanent residents).
54. See infra notes 73-77 and accompanying text.
55. Graham v. Richardson, 403 U.S. 365, 371-72 (1971) (quoting United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938)).
56. Toll v. Moreno, 458 U.S. 1, 19-24 (1982) (Blackmun, J., concurring); Graham, 403 U.S. at 371-72; Harold H. Koh, Equality with a Human Face: Justice Blackmun and the Equal Protection of Aliens, 8 Hamline L. Rev. 51, 99-100 (1985) (supporting equal protection approach over preemption approach to aliens' rights);
57. Gerald Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, 1977 Sup. Ct. Rev. 275, 293-316 (defending application of strict scrutiny to government anti-immigrant discrimination);
58. see also Developments in the Law - Immigration Policy and the Rights of Aliens, 96 Harv. L. Rev. 1286, 1299-1302 (1983) (surveying theory and jurisprudence of immigration policies).
59. E.g., Legomsky, supra note 29, at 256; Motomura, supra note 31, at 547.
60. T. Alexander Aleinikoff, David A. Martin & Hiroshi Motomura, Immigration and Citizenship: Process and Policy 154-55 (4th ed. 1998). Gerald Neuman has suggested that the pre-Civil War divide between Northern and Southern states regarding slavery prevented the development of any federal policy regarding border regulation.
61. See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 Colum. L. Rev. 1833, 1889 (1993);
62. see also Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law 51 (1996) ("The uncoupling of migration from slavery as a result of the Civil War made federal regulation possible.").
63. See, e.g., Plyler v. Doe, 457 U.S. 202, 214 (1982) (reviewing congressional debates on Fourteenth Amendment and determining that "Congress . . . sought expressly to ensure that the equal protection of the laws was provided to the alien population"); see also Voting Rights Act of 1870, ch. 114, §§ 16, 18, 16 Stat. 140, 144 (1870) (reenacting § 1 of Civil Rights Act of 1866 and extending its prohibition on discrimination in contracting to cover noncitizens); Duane v. Geico, 37 F.3d 1036, 1040-42 (4th Cir. 1994) (discussing legislative history of same, and holding that 42 U.S.C. § 1981 (1994), modern successor to contracting portion of § 1 of Civil Rights Act of 1866, prohibits alienage discrimination in private contracting).
64. See, e.g., Act of May 6, 1882, ch. 126, 22 Stat. 58 (suspending immigration from China for ten years). See generally Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (1995) (examining experience of Chinese immigrants under nineteenth century immigration laws).
65. In a series of early decisions, the Court held that aliens in "exclusion" proceedings at the nation's borders could invoke neither the procedural nor the substantive elements of the Due Process Clause. Even aliens physically present in the country but placed in "deportation" proceedings could not invoke substantive due process. See Fong Yue Ting v. United States, 149 U.S. 698, 724, 730 (1893) (rejecting substantive challenge to deportation statute); Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892) (rejecting procedural challenge to exclusion statute, for "the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law"); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889) (rejecting substantive challenge to exclusion statute). The Court did conclude that persons already present in the United States could bring due process challenges to the procedures employed in deporting them. Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100 (1903).
66. For example, the Court stated in Harisiades v. Shaughnessy, 342 U.S. 580 (1952), that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. Id. at 588-89 (footnote omitted). For similar statements, see Landon v. Plasencia, 459 U.S. 21, 34 (1982); Kleindienst v. Mandel, 408 U.S. 753, 765-67 (1972).
67. See articles cited supra note 31; see also Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Mo. L. Rev. 743, 749 (1996) ("[T]he Court's nineteenth-century opinions on immigration under the Commerce Clause reveal the shadows of slaves and indentured servants.").
68. In Miller v. Albright, 523 U.S. 420 (1997), the Court considered a challenge to explicit gender discrimination in a naturalization statute. Significantly, five members of the Court - Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer - wrote or joined opinions that strongly suggested that, notwithstanding the plenary power doctrine, with the proper plaintiff, the gender discrimination at issue would be held unconstitutional. Id. at 445-52 (O'Connor, J., concurring); id. at 460 (Ginsburg, J., dissenting); id. at 471 (Breyer, J., dissenting). The Court now has an opportunity to deliver on Miller's promise, as it is likely to resolve a post-Miller split among the Courts of Appeals. Compare United States v. Ahumada-Aguilar, 189 F.3d 1121 (9th Cir. 1999) (with proper plaintiff, invalidating statute at issue in Miller), petition for cert. filed, 68 U.S.L.W. 3741 (U.S. May 22, 2000) (No. 99-1872), with Nguyen v. INS, 208 F.3d 528, 535 (5th Cir. 2000) (declining to follow Ahumada-Aguilar and upholding same statute), cert. granted, 121 S. Ct. 29 (2000); see also T. Alexander Aleinikoff & Cornelia T.L. Pillard, Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision-Making in Miller v. Albright, 1998 Sup. Ct. Rev. 1, 3 ("Miller raises the prospect that the plenary power doctrine is as inappropriate in immigration and nationality law generally as the Justices in Miller suggest it is for jus sanguinis citizenship claims.").
69. See supra note 31.
70. See, e.g., Graham v. Richardson, 403 U.S. 365 (1971) (holding that anti-immigrant welfare discrimination violates equal protection); Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (same, as to discrimination in granting of commercial fishing licenses); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (holding that anti-immigrant laundry licensing scheme violates equal protection). For two thoughtful analyses of the Supreme Court's equal protection jurisprudence concerning immigrants, see Linda Bosniak, Membership, Equality, and the Difference that Alienage Makes, 69 N.Y.U. L. Rev. 1047 (1994); Koh, supra note 44.
71. 118 U.S. 356 (1886).
72. Id.
73. Id. at 369.
74. Id. at 374.
75. 334 U.S. 410 (1948).
76. Id. at 412 n.1.
77. Id. at 425 (Murphy, J., concurring); see also Michael J. Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum. L. Rev. 1023, 1061 & n.194 (1979) (characterizing Takahashi as involving alienage discrimination that "at bottom" is race discrimination).
78. Takahashi, 334 U.S at 420. A separate strand of analysis in Takahashi also treated the California fishing statute as an impermissible state effort effectively to deny "entrance and abode" to immigrants lawfully admitted pursuant to an act of Congress. Id. at 418-20.
79. 403 U.S. 365 (1971).
80. Id. at 371-72 (footnotes and citation omitted). The discrimination at issue in Graham is based on alienage, but it is conceivable that the Court could have characterized it as a form of discrimination against poor people. Under decisions that barely predate Graham, however, such an analysis would have led the Court to apply only rationality review. See James v. Valtierra, 402 U.S. 137, 141-43 (1971) (equal protection challenge to state constitutional amendment restricting construction of low-income housing subject to rationality review); Dandridge v. Williams, 397 U.S. 471, 486-87 (1970) (same, as to equal protection challenge to family cap in state AFDC statute). For a critical account of the Court's use of rationality review in evaluating classifications based on wealth, see Stephen Loffredo, Poverty, Democracy, and Constitutional Law, 141 U. Pa. L. Rev. 1277, 1305-67 (1993).
81. Graham, 403 U.S. at 376. In a separate holding that relied heavily on the federalism analysis in Truax v. Raich, 239 U.S. 33 (1915), see infra notes 90-95 and accompanying text, the Court also explained that the state statutes were preempted by the exclusive federal immigration power, in that state denial of welfare benefits "equate[s] with the assertion of a right, inconsistent with federal policy, to deny entrance and abode," Graham, 403 U.S. at 380. In a later opinion, Justice Blackmun examined Graham, elaborating that "disparate treatment accorded a class of 'similarly circumstanced' persons who historically have been disabled by the prejudice of the majority led the Court to conclude that alienage classifications 'in themselves supply a reason to infer antipathy'. . . and therefore demand close judicial scrutiny." Toll v. Moreno, 458 U.S. 1, 20-21 (1982) (Blackmun, J., concurring) (quoting Personnel Adm'r v. Feeney, 442 U.S. 256, 272 (1979)).
82. Graham, 403 U.S. at 374-75 ("Since an alien as well as a citizen is a 'person' for equal protection purposes, a concern for fiscal integrity is no more compelling a justification for the questioned classification in these cases than it was in Shapiro [v. Thompson, 394 U.S. 618, 633 (1969)]."). Importantly, the aliens in Graham were permanent resident aliens, colloquially known as persons with "green cards" and sometimes referred to as "citizens in training." T. Alexander Aleinikoff, Citizens, Aliens, Membership and the Constitution, 7 Const. Comment. 9 (1990);
83. Bosniak, supra note 54; David A. Martin, Due Process and Membership in the National Community: Political Asylum and Beyond, 44 U. Pitt. L. Rev. 165 (1983). So too were the plaintiffs in all but two of the subsequent Supreme Court decisions regarding local anti-immigrant discrimination. Bernal v. Fainter, 467 U.S. 216 (1984) (invalidating bar to permanent residents serving as notary public); Nyquist v. Mauclet, 432 U.S. 1 (1977) (invalidating state restriction on student aid to legal permanent residents); Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976) (invalidating bar to permanent residents obtaining license as civil engineer); In re Griffiths, 413 U.S. 717 (1973) (invalidating state bar to permanent residents obtaining admission to bar); Sugarman v. Dougall, 413 U.S. 634 (1973) (invalidating state law barring permanent resident aliens from civil service jobs). But see Cabell v. Chavez-Salido, 454 U.S. 432 (1982) (recognizing "political function" exception to Graham rule of strict scrutiny for certain categories of public employment and upholding state statute excluding permanent residents from employment as "peace officers"); Ambach v. Norwick, 441 U.S. 68 (1979) (same, as to state statute requiring permanent resident public school teachers to declare intent to become citizens); Foley v. Connelie, 435 U.S. 291 (1978) (same, as to state statute limiting membership in police force to citizens). The two cases of state or local anti-immigrant discrimination not involving permanent residents were Plyler v. Doe, 457 U.S. 202 (1982) (subjecting denial of public primary and secondary education to undocumented children to intermediate scrutiny and invalidating it), and Toll, 458 U.S. at 1 (holding that state denial of student financial aid to holders of G-4 visas violated Supremacy Clause). The Court, however, has not considered which level of scrutiny to apply to state discrimination against thousands of other legal immigrants, from student and employment visa holders to refugees and asylum seekers.
84. 426 U.S. 67 (1976).
85. Id. at 81.
86. Id. at 82.
87. Id. at 83.
88. Id. at 84.
89. Id. at 86-87.
90. See cases cited supra note 12. State courts also have applied strict scrutiny to state alienage classifications in welfare programs and invalidated them as violative of the Fourteenth Amendment. E.g., Barannikova v. Town of Greenwich, 643 A.2d 251, 264-65 (Conn. 1994) (invalidating welfare "deeming" provision applicable only to aliens); El Souri v. Dep't of Soc. Servs., 414 N.W.2d 679, 687 (Mich. 1987) (same); see also State Dep't of Revenue v. Cosio, 858 P.2d 621, 628 & n.7 (Alaska 1993) (noting that exclusion of resident aliens from budget surplus dividend program would be subject to strict scrutiny under federal equal protection clause); Minino v. Perales, 589 N.E.2d 385, 386-87 (N.Y. 1992) (invalidating provision as violative of state constitution).
91. See supra note 41.
92. Cabell v. Chavez-Salido, 454 U.S. 432, 436, 439 (1982) (upholding as rational state bar to noncitizens serving as deputy probation officers); Ambach v. Norwick, 441 U.S. 68, 80-81 (1979) (same, as to public school teachers); Foley v. Connelie, 435 U.S. 291 (1978) (same, as to state troopers).
93. 467 U.S. 216 (1984).
94. Id. at 222 n.7. Only Justice Rehnquist dissented, in a single sentence, from Bernal's straightforward application of the settled rule of Graham. Id. at 228 (Rehnquist, J., dissenting); see also Cabell, 454 U.S. at 439 (applying "political function" exception to public employment but emphasizing that Court is "not retreating from the position that restrictions on lawfully resident aliens that primarily affect economic interests are subject to heightened judicial scrutiny" (emphasis added)).
95. Compare Nyquist v. Mauclet, 432 U.S. 1, 20-22 (1977) (Rehnquist, J., dissenting) (outlining instances in which deferential review of anti-immigrant discrimination, state and federal, is more appropriate than strict scrutiny), Sugarman v. Dougall, 413 U.S. 634, 658 (1973) (Rehnquist, J., dissenting) (same), and Perry, supra note 61, at 1061-62 (same), with Rosberg, supra note 44, at 336-39 (criticizing deferential review of federal alienage classifications).
96. See, e.g., Gerald L. Neuman, Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. Rev. 1425, 1430-35 (1995).
97. See, e.g., Victor Romero, Equal Protection Held Hostage: Ransoming the Constitutionality of the Hostage Taking Act, 91 Nw. U. L. Rev. 573 (1997);
98. Valerie L. Barth, Comment, Anti-Immigrant Backlash and the Role of the Judiciary: A Proposal for Heightened Review of Federal Laws Affecting Immigrants, 29 St. Mary's L.J. 105 (1997);
99. Connie Chang, Comment, Immigrants Under the New Welfare Law: A Call for Uniformity, a Call for Justice, 45 UCLA L. Rev. 205 (1997);
100. Recent Legislation - Welfare Reform - Treatment of Legal Immigrants, 110 Harv. L. Rev. 1191 (1997).
101. See, e.g., Peter J. Spiro, Learning to Live with Immigration Federalism, 29 Conn. L. Rev. 1627 (1997).
102. See Neuman, supra note 79, at 1438 ("After the development of intermediate scrutiny for gender classifications in the mid-1970s, one might ask whether alienage discrimination really requires the stricter scrutiny that race receives.").
103. See United States v. Virginia, 518 U.S. 515, 531 (1996) (requiring "exceedingly persuasive justification" for gender discrimination and applying form of heightened scrutiny); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442-47 (1985) (discussing heightened "quasi-suspect" standard of judicial review); Plyler v. Doe, 457 U.S. 202, 223-24, 230 (1982) (invalidating denial of free public education to undocumented children as failing to further "some substantial goal of the State" under heightened standard of review).
104. See, e.g., Higham, supra note 26.
105. Virginia, 518 U.S. at 532-33. This is not to say that the Court should abandon Graham's strict scrutiny of state alienage classifications. Rather, in light of the desirability of a more flexible approach to equal protection analysis generally, and in recognition that immigration status is not always immutable, even were the current Court to revisit Graham, it should - and there is every reason to believe it would - continue to apply a standard of review no less demanding than that applied to gender classifications.
106. See supra note 2.
107. See Saenz v. Roe, 526 U.S. 489, 502-07 (1999) (holding that federally authorized, state-imposed durational residency requirements for welfare benefits violate federal right to travel protected by Privileges and Immunities Clause of Fourteenth Amendment); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 837-38 (1995) (holding state-imposed term limits on federal officeholders unconstitutional).
108. Cf. Neuman, supra note 46, at 1834 (arguing that in nation's first century, most immigration regulation occurred at state and local level). The early history of state immigration regulation is addressed infra notes 337-40 and accompanying text.
109. See Chy Lung v. Freeman, 92 U.S. 275, 281 (1876) (invalidating state inspection and bond requirements for immigrants); Henderson v. Mayor of New York, 92 U.S. 259, 273 (1876) (invalidating state tax and bond requirement for immigrants); The Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283 (1849) (invalidating state taxes on immigrants); cf. Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102, 142 (1837) (upholding state regulation regarding ship manifests).
110. See Toll v. Moreno, 458 U.S. 1, 17 (1982) (holding that state denial of student financial aid to G-4 visa holders is preempted and invalid); Graham v. Richardson, 403 U.S. 365, 376-80 (1971) (stating alternate holding that state welfare discrimination against permanent residents was preempted); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948) (holding state restriction on commercial fishing licenses preempted); Hines v. Davidowitz, 312 U.S. 52, 73-74 (1941) (finding state alien registration system preempted); Truax v. Raich, 239 U.S. 33, 43 (1915) (finding local employment restriction on immigrants preempted); see also Plyler v. Doe, 457 U.S. 202, 224-26 (1982) (noting that state denial of public education to undocumented children was not authorized by Congress). But see De Canas v. Bica, 424 U.S. 351, 365 (1976) (declining to hold that state employment restrictions as to undocumented workers are preempted).
111. See, e.g., De Canas, 424 U.S. at 354 ("[T]he power to regulate immigration is unquestionably exclusively a federal power."); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889) (stating that federal immigration power is "incapable of transfer" and "cannot be granted away"); Chy Lung, 92 U.S. at 280 ("The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States.").
112. See Plyler, 457 U.S. at 225; De Canas, 424 U.S. at 356-63.
113. Graham, 403 U.S. at 371 (noting that Fourteenth Amendment encompasses legal immigrants); Hines, 312 U.S. at 73-74 (invalidating state registration requirement for legal immigrants).
114. Toll, 458 U.S. at 17 (invalidating state denial of in-state tuition to nonimmigrant aliens who hold G-4 visas).
115. See, e.g., Graham, 403 U.S. at 378 (noting that "aliens lawfully within this country have a right to enter and abide in any State"); Truax, 239 U.S. at 42 ("The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode . . . ."). Early in the twentieth century the Court recognized a "special public interest" exception to the rule of Truax, permitting state or local authorities to enact some alienage classifications without contravening the prior federal authorization for entrance and abode. See, e.g., Crane v. New York, 239 U.S. 195, 198 (1915) (upholding state restriction on employment of noncitizens on public works projects); Patsone v. Pennsylvania, 232 U.S. 138, 143-46 (1914) (upholding state statute that prohibited noncitizens from hunting wild game and owning shotguns or rifles). The "special public interest" exception was discredited in Takahashi, 334 U.S. at 420, and rejected in Graham, 403 U.S. at 374 ("Whatever may be the contemporary vitality of the special public-interest doctrine in other contexts after Takahashi, we conclude that a State's desire to preserve limited welfare benefits for its own citizens is inadequate to justify [welfare restrictions for permanent resident aliens].").
116. See, e.g., De Canas, 424 U.S. at 365 (holding state prohibition on employment of undocumented immigrants not preempted). Some academic and judicial commentators have suggested that a preemption analysis of state and local anti-immigrant discrimination would be a more sensible approach than the equal protection analysis frequently employed. See, e.g., Perry, supra note 61, at 1060-65. The Supreme Court itself has shifted between the two modes of analysis, employing one, the other, or both. Compare Bernal v. Fainter, 467 U.S. 216, 219-22 (1984) (equal protection analysis only), Toll, 458 U.S. at 9-10 (preemption analysis only), and Plyler, 457 U.S. at 205 (equal protection analysis only), with Examining Bd. v. Flores de Otero, 426 U.S. 572, 602 (1976) (both equal protection and preemption analysis), and Graham, 403 U.S. at 376, 380 (same). Critics have responded persuasively that preemption analysis leads to a "hollow formalism" that denies the equality and anticaste force of the equal protection analysis. See, e.g., Koh, supra note 44, at 98.
117. Cong. Budget Office, supra note 7, at 3; see also Fix & Tumlin, supra note 7, at 5 & n.14; Wheeler, supra note 7, at 1248. Congressional restoration of SSI and Medicaid benefits for some legal immigrants in the Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 5301-5308, 111 Stat. 251, 577-603 (codified as amended in scattered sections of 8 U.S.C.), reduced the estimated federal savings by approximately $11.4 billion. Fix & Tumlin, supra note 7, at 5.
118. Michael Fix & Jeffrey S. Passel, Urban Inst., Trends in Noncitizens' and Citizens' Use of Public Benefits Following Welfare Reform: 1994-1997, Detailed Table B (1999), http:// www.urban.org/immig/trends.html.
119. Zimmermann & Tumlin, supra note 9, at 12.
120. 8 U.S.C. § 1601(1) (Supp. V 1999) (emphasis added).
121. Id. § 1601(7) (emphasis added).
122. H.R. Conf. Rep. No. 104-725, at 378 (1996) (emphasis added), reprinted in 1996 U.S.C.C.A.N. 2649, 2766.
123. Id. Nearly identical statements appear in the House report accompanying the legislation that would become Title IV of the PRA. See H.R. Rep. No. 104-651, at 1441 (1996) (stating: [I]t continues to be the immigration policy of the U.S. that noncitizens within the nation's borders not depend on public resources . . . and . . . it is a compelling government interest to enact new eligibility and sponsorship rules to assure that noncitizens become self reliant and to remove any incentive for illegal immigration. (emphasis added)), reprinted in 1996 U.S.C.C.A.N. 2183, 2500.
124. See H.R. Conf. Rep. No. 104-725, at 384 (discussing Graham in section on federal authorization for state denial of state benefits and characterizing decision as prohibiting denial of state assistance to permanent residents "without authorization from Congress"), reprinted in 1996 U.S.C.C.A.N. 2649, 2772; id. at 386 (discussing Graham and its progeny in section on federal authorization for state attribution of sponsor's income and resources, and characterizing them as prohibiting state sponsor-deeming "without Federal authorization"), reprinted in 1996 U.S.C.C.A.N. at 2774. The House report contains nearly identical statements. See H.R. Rep. No. 104-651, at 1445 (discussing Graham in section on federal authorization for state denial of state benefits), reprinted in 1996 U.S.C.C.A.N. 2183, 2504; id. at 1448 (discussing Graham in section on federal authorization for state attribution of sponsor's income and resources), reprinted in 1996 U.S.C.C.A.N. at 2507.
125. See, e.g., George J. Borjas, Heaven's Door: Immigration Policy and the American Economy 105 (1999) ("[G]enerous welfare programs can create a magnet that influences the migration decisions of persons in the source countries . . . . [T]he empirical link between immigration and welfare is indisputable."); id. at 114 ("[T] here are good reasons to be concerned with the possibility that generous welfare programs might attract a particular type of immigrant . . . .").
126. The PRA created a new term, "qualified alien," which includes some, but far from all, legal immigrants. Legal permanent residents are "qualified aliens," as are some refugees and asylees, Cuban-Haitian entrants, Amerasians, persons paroled into the United States by the Attorney General for a period of one year or more, and certain aliens who have been the victims of domestic abuse. 8 U.S.C. § 1641 (Supp. V 1999). All other noncitizens are not eligible for federal benefits, including undocumented immigrants, refugees and asylees who have been in the United States for more than seven years, and legal immigrants who never were "qualified aliens" (such as persons with student or employment visas, or those with pending asylum or adjustment applications). See, e.g., id. §§ 1101(a)(15)(F), 1101(a)(15)(H), 1158(d)(2), 1255(a), 1612(a)(2)(A).
127. See, e.g., id. § 1611(b)(1) (stating that all persons, regardless of immigration status, are eligible for specified programs, including emergency Medicaid, disaster relief, and immunization programs); id. § 1611(a)(2) (describing certain qualified aliens who are eligible for SSI and Food Stamps programs); id. § 1612(b)(2) (stating that certain aliens "shall be eligible" for Medicaid, TANF, and Title XX social service block grant programs); id. § 1622(b) (stating that certain qualified aliens "shall be eligible" for state benefits programs).
128. See, e.g., id. §§ 1611(a), 1612(a) (Supp. V 1999) (stating that all nonqualified aliens, and some qualified aliens, are "not eligible" for SSI or Food Stamps); id. § 1611(a) (stating that all nonqualified aliens are ineligible for Medicaid, TANF, and Title XX social service block grant programs); id. § 1621(a) (stating that certain nonqualified aliens are "not eligible" for specified state benefits programs); see also id. § 1621(d) (stating that state may provide state or local benefits to undocumented immigrant "only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility"). This last provision would appear to violate the Tenth Amendment. See Printz v. United States, 521 U.S. 898 (1997) (holding that Congress may not "commandeer" state executive officials to implement federal mandate); New York v. United States, 505 U.S. 144 (1992) (holding that Congress may not compel states to enact or administer a federal regulatory program); Erwin Chemerinsky, Memorandum on the Constitutionality of Section 411(d) of H.R. 3734 (Sept. 1996) (unpublished memorandum, on file with the New York University Law Review) (arguing that provision that became § 1621(d) may violate Tenth Amendment).
129. See, e.g., 8 U.S.C. § 1612(b)(1) (authorizing states to "determine the eligibility" of qualified aliens for Medicaid, TANF, and Title XX block grants); id. § 1622(a) (authorizing states to "determine the eligibility for any State public benefits" of certain qualified and certain nonqualified aliens); id. § 1632(a) (authorizing states to "deem" income and resources of indigent alien to include income and resources of alien's sponsor).
130. The PRA made a number of other important changes relating to noncitizens, which are likely to prompt constitutional challenges. One set of provisions requires states that receive TANF grants to report quarterly to the Immigration and Naturalization Service (INS) the names and addresses of all persons the state knows to be "not lawfully present in the United States." PRA § 404, 42 U.S.C. § 611(a) (Supp. IV 1998). Such provisions raise "unconstitutional conditions" problems in the case, for example, of an undocumented mother with a child who is a U.S. citizen, where the child is eligible for benefits but the mother will be deported if she applies on behalf of her child for those benefits. See Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1427 (1989); see also Plyler v. Doe, 457 U.S. 202, 239 n.3 (Powell, J., concurring) ("If the resident children of illegal aliens were denied welfare assistance, made available by government to all other children who qualify, this also - in my opinion - would be an impermissible penalizing of children because of their parents' status."). Another set of PRA provisions prohibits state or local governments from adopting "antisnitch" policies, that is, policies directing state or local employees not to report persons to INS. 8 U.S.C. § 1644 (Supp. V 1999). The Second Circuit recently rejected a Tenth Amendment challenge to these provisions brought by the City of New York, City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999), which, like a number of municipalities, has had an antisnitch ordinance for years, New York, N.Y., Exec. Order No. 124 (1989) (on file with the New York University Law Review).
131. In addition to the PRA's immigrant provisions, the act made numerous other revisions to federal and state welfare laws. To list but a few changes, the PRA eliminated Aid to Families with Dependent Children (AFDC), a categorical, need-based program, and replaced it with a system of block grants, called TANF, which allows each state significant discretion in determining how to spend the grant, 42 U.S.C. § 604(a), establishes time limits for recipients of TANF funds, subject to some exceptions, id. § 608(a)(7), and authorizes durational residency requirements, id. § 604(c). But see Saenz v. Roe, 526 U.S. 489, 507-11 (1999) (holding Congressional authorization of durational residency requirements unconstitutional).
132. See Zimmermann & Tumlin, supra note 9, at 6 ("It has been over two and a half years since the federal welfare law passed, but states are not done setting policy for immigrants.").
133. See, e.g., Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 5301-5308, 111 Stat. 251, 597-603 (codified as amended in scattered sections of 8 U.S.C.) (restoring eligibility of some legal immigrants for SSI); Agricultural Research, Extension and Education Reform Act of 1998 §§ 503-504, 8 U.S.C. § 1612(a)(2)(A), (F) (restoring eligibility of some legal immigrants for Food Stamps).
134. Some states attempted to expedite the PRA's implementation through the use of emergency rulemaking authority. In Louisiana, for example, the state's Department of Health and Hospitals published an "emergency rule" in January 1997 directing the termination of Medicaid benefits for all immigrants except those required by the PRA to remain eligible, effective January 1, 1997. Declaration of Emergency, 23 La. Reg. 24, 25 (1997). In the face of local advocacy against implementation of the emergency rule, and on the eve of litigation, Louisiana rescinded its rule. The most extreme example of the use of emergency rulemaking was probably New Mexico's decision to bypass the state legislature entirely and simply to implement the PRA by agency rulemaking. This effort was enjoined by the state supreme court as violative of separation of powers principles. State ex rel. Taylor v. Johnson, 961 P.2d 768 (N.M. 1998).
135. The most detailed empirical study of state choices regarding immigrant access to benefits after the PRA is that of the Urban Institute. See Zimmermann & Tumlin, supra note 9.
136. Louisiana barred legal immigrants from eligibility for Medicaid, but rescinded its rule on the eve of implementation. Telephone Interview with Martha Kegel, former Legal Director, ACLU of Louisiana (Oct. 10, 2000). Alabama barred noncitizens from TANF, and Wyoming closed Medicaid to them. See supra note 9. In addition, shortly before the President signed the PRA into law, Pennsylvania denied cash and medical assistance to legal immigrants, see Act 1996-35, § 14.2, 1996 Pa. Laws 175, 202 (codified at 62 Pa. Cons. Stat. Ann. § 432.22 (West 1996)), but operation of the statute was suspended by an opinion letter issued by the state Attorney General, see Official Opinion No. 96-1, Op. Att'y Gen. of Pa. (Dec. 9, 1996), available in 1996 Pa. AG LEXIS 2.
137. "General Assistance" (GA) is the "generic term for public assistance programs that are funded and authorized exclusively by state and local law." Loffredo, supra note 19, at 164. Thirty-three states have a GA program. Zimmermann & Tumlin, supra note 9, at 31 & n.66. The Urban Institute reports that Michigan effectively limits immigrant eligibility to its GA program to those immigrants eligible for SSI, which has the effect of denying GA benefits to permanent residents who arrived in the United States before August 22, 1996, were not receiving SSI on that date, and are elderly but not disabled, as well as to permanent residents arriving after August 22, 1996. Zimmermann & Tumlin, supra note 9, at 66 tbl.10; id. at 66 nn.24-25. Under current Michigan regulations, however, it appears that all legal permanent residents, as well as other "qualified aliens," and even students and tourists, are eligible for Michigan's GA program. Family Independence Agency, State of Mich., State Emergency Relief Manual No. SER 201, Residence, Age, and Citizenship 1 (2001), http://www.mfia.state.mi.us/olmweb/ex/ser/ser.pdf.
138. Washington, Maryland, and Connecticut enacted durational residency requirements for immigrants only. See supra note 9; cf. Loffredo, supra note 19 (noting that right to travel derives from Commerce Clause). But see Saenz v. Roe, 526 U.S. 489, 500-07 (1999) (stating that durational residency requirement violates right to travel, which is protected by Fourteenth Amendment provision safeguarding "the privileges or immunities of citizens" (emphasis added)).
139. Connecticut and New Jersey now require legal immigrants to pursue naturalization as a condition of receipt of benefits. See Conn. Gen. Stat. Ann. § 17b-116(e) (West Supp. 2000) (TANF, Medicaid, and GA programs); N.J. Stat. Ann. § 44:10-48(a) (West Supp. 2000) (TANF and GA programs). But see Nyquist v. Mauclet, 432 U.S. 1, 7-12 (1977) (holding that under Graham, state may not require legal immigrants to pursue naturalization as condition of receipt of benefits). Perhaps aware of Nyquist, other states encourage but do not require immigrants to pursue citizenship. See, e.g., Col. Rev. Stat. § 26-2-111.8(6) (1999); Wash. Rev. Code Ann. § 74.08A.130 (West Supp. 2001).
140. Forty-three states accepted the federal invitation to implement sponsor-deeming rules in their TANF programs for permanent residents who arrived before August 22, 1996. Zimmermann & Tumlin, supra note 9, at 27. But see supra note 73 (listing cases holding state sponsor-deeming rules unconstitutional).
141. Compare Ind. Code Ann. § 12-14-2-5.1(a), (b) (West 2000) (two-year AFDC eligibility generally), and id. § 12-15 (West 1994) (two-year Medicaid eligibility), with id. § 12-14-2.5-2 (one-year AFDC eligibility for permanent residents), and id. § 12-15-2-7 (one-year Medicaid eligibility for permanent residents).
142. Ten states deny GA to at least some permanent residents who arrived in the United States after August 22, 1996, four impose a residency requirement not imposed on citizens, six impose a naturalization requirement, and fourteen apply a sponsor-deeming rule, none of which are required by the PRA. Zimmermann & Tumlin, supra note 9, at 66-72 tbls.10-12. In addition, New Jersey provides GA for five years to citizens, but for only six months to legal immigrants. Id. at 33. Similarly, four states deny state medical assistance to at least some permanent residents who arrived in the United States after August 22, 1996, two impose a residency requirement not imposed on citizens, two impose a naturalization requirement, and eight apply a sponsor-deeming rule, none of which are required by the PRA. Id. at 73-79 tbls.13-15. Though not included in the Urban Institute tables, New York also currently denies nonemergency state medical assistance to some permanent residents who entered after August 22, 1996. See N.Y. Soc. Serv. Law § 122(1)(c)(i) (McKinney Supp. 2000).
143. California is the only state to have established all four state substitute programs, but twenty-seven other states enacted at least one state substitute program. Zimmermann & Tumlin, supra note 9, at 23 fig.3, 59 tbl.4.
144. For example, nineteen states have a state substitute TANF program for permanent residents during the five-year bar period. Id. at 60 tbl.5. Of those nineteen states, however, three established a naturalization requirement, seven imposed a residency requirement that exceeds that for citizens in the regular TANF program, and sixteen apply a sponsor-deeming rule not mandated by the PRA. Id. at 63 tbl.7.
145. Id. at 23 fig.3. INS estimates that over eighty percent of legal immigrants in this country live in six states: California (35.3%), New York (14.2%), Texas (7.8%), Florida (7.5%), New Jersey (4.4%), and Illinois (4.3%). Immigration & Naturalization Serv., U.S. Dep't of Justice, State Population Estimates: Legal Permanent Residents & Aliens Eligible to Apply for Naturalization (1996), http://www.ins.usdoj.gov/graphics/aboutins/statistics/lprest.htm.
146. Zimmermann & Tumlin, supra note 9, at 46.
147. Telephone Interview with Josh Bernstein, Senior Policy Analyst, National Immigration Law Center (Oct. 10, 2000); see also supra note 25. The Urban Institute concluded that states with higher per capita incomes and more generous benefits programs prior to the enactment of the PRA have tended "to keep that safety net open to immigrants," but that state budget surpluses have not correlated with higher immigrant access to benefits. Zimmermann & Tumlin, supra note 9, at 46.
148. Charles Wheeler states: Governors have every reason . . . not to eliminate Medicaid eligibility for [qualified aliens], since the states are reimbursed by the federal government for approximately 50 percent of the medical costs claimed under Medicaid . . . . [Moreover,] communicable diseases left untreated will spread to the general population, resulting in a threat to public health and even higher costs to the states and federal government. Wheeler, supra note 7, at 1249-50 (footnote omitted).
149. Telephone Interview with Josh Bernstein, supra note 127.
150. See supra note 9.
151. See supra notes 9, 118-24.
152. See cases cited supra note 41. In addition, two state intermediate courts have addressed challenges to post-PRA state programs. See Aliessa v. Novello, 712 N.Y.S.2d 96, 98-99 (App. Div. 2000) (holding New York law providing state medical assistance benefits to eligible citizens, but denying same to some permanent residents and other legal immigrants, subject to rationality review and valid); Alvarino v. Wing, 690 N.Y.S.2d 262, 263 (App. Div. 1999) (holding New York law providing substitute benefits to some but not all permanent residents denied federal Food Stamps, where program does not offer similar benefits to citizens because they remain eligible for federal Food Stamps, subject to rationality review and valid). Only the former decision involves a federally authorized, stateimposed classification between citizens and permanent residents. To the extent that either holds that post-PRA state discrimination against permanent residents is subject to rationality review and valid under the Fourteenth Amendment, they are incorrect.
153. Official Opinion No. 96-1, Op. Att'y Gen. of Pa. (Dec. 9, 1996), at 12, available in 1996 Pa. AG LEXIS 2, at *23-*24.
154. 403 U.S. 365 (1971).
155. Id. at 380. This is precisely the argument that one would expect from a state defending a post-PRA alienage classification.
156. Id. at 382.
157. Id.
158. Id.
159. U.S. Const. art. I, § 8, cl. 4 (empowering Congress "[t]o establish an uniform Rule of Naturalization . . . throughout the United States").
160. See, e.g., Saenz v. Roe, 526 U.S. 489, 507-08 (1999) ("[W]hether congressional approval of durational residency requirements in the [PRA] somehow resuscitates the constitutionality of [California's rule] . . . is readily answered, for we have consistently held that Congress may not authorize the States to violate the Fourteenth Amendment." (citation omitted)); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 732-33 (1982) ("Although we give deference to congressional decisions and classifications, neither Congress nor a State can validate a law that denies the rights guaranteed by the Fourteenth Amendment."); Shapiro v. Thompson, 394 U.S. 618, 641 (1969) ("Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause."); White v. Hart, 80 U.S. (13 Wall.) 646, 649 (1871) (holding that Congress cannot authorize states to violate Contracts Clause). The same principle has been applied to other congressional attempts to limit by statute the constitutional rights of aliens. See Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973) (explaining, in case involving Fourth Amendment rights of aliens, that "no Act of Congress can authorize a violation of the Constitution"); see also 1 Laurence Tribe, American Constitutional Law 1238 (3d ed. 2000) ("Congress cannot authorize a state to violate a constitutional command designed to protect private rights against government action (such as the commands of § 1 of the Fourteenth Amendment).").
161. See, e.g., Hogan, 458 U.S. at 731 (forbidding gender discrimination in education). In Saenz v. Roe, for instance, the Court emphasized that the Fourteenth Amendment right at stake, the right to travel, "is a limitation on the powers of the National Government as well as the States." 526 U.S. at 508.
162. Graham, 403 U.S. at 382 n.14 ("We have no occasion to decide whether Congress, in the exercise of the immigration and naturalization power, could itself enact a statute imposing on aliens a uniform nationwide residency requirement as a condition of federally funded welfare benefits."). It was not until five years after Graham that the Supreme Court answered this question in the affirmative. See Mathews v. Diaz, 426 U.S. 67, 82-83 (1976) ("[I]t is unquestionably reasonable for Congress to make an alien's eligibility [for benefits] depend on both the character and the duration of his residence.").
163. The briefs to the Court barely explored the question of federal statutory authorization for state discrimination. The argument was raised only by the Arizona appellants, Graham, 403 U.S. at 380, but it was not even acknowledged by the Arizona appellees, see Brief for Appellee at 2, 7, 9, 11, Graham (No. 609) (on file with the New York University Law Review), and apparently addressed only in a single paragraph by one amicus brief, see Brief of Amicus Curiae American Civil Liberties Union at 10, Graham (Nos. 609, 727) (on file with the New York University Law Review).
164. See infra notes 344-51 and accompanying text.
165. In other contexts, the current Court has reacted poorly to congressional efforts to dictate the degree of constitutional scrutiny applied to local rules. See Dickerson v. United States, 120 S. Ct. 2326, 2332-33 (2000) (stating that "Congress may not legislatively supersede our decisions interpreting and applying the Constitution . . . ." (citing City of Boerne v. Flores, 521 U.S. 507, 517-21 (1997))); Boerne, 521 U.S. at 507 (invalidating provision of Religious Freedom Restoration Act of 1993, which attempted to require application of balancing test of Sherbert v. Verner, 374 U.S. 398 (1963), to free exercise challenges to state laws of general applicability, rather than rule of Employment Div. v. Smith, 494 U.S. 872 (1990)).
166. Graham, 403 U.S. at 382; see also U.S. Const. art. I, § 8, cl. 4 (empowering Congress "[t]o establish an uniform Rule of Naturalization . . . throughout the United States"). In his post-PRA Opinion Letter, the Attorney General of Pennsylvania reached a similar conclusion. See Official Opinion No. 96-1, Op. Att'y Gen. of Pa. (Dec. 9, 1996), at 5-6, available in 1996 Pa. AG LEXIS 2, at *11; see also Gilbert Paul Carrasco, Congressional Arrogation of Power: Alien Constellation in the Galaxy of Equal Protection, 74 B.U. L. Rev. 591, 637 (1994) ("[S]tate legislation that disqualifies lawful resident aliens from eligibility for public benefits, even if enacted pursuant to a federal statute, would clearly contravene the Naturalization Clause."). Recent amendments to the immigration laws providing for incorporation of diverse state criminal statutes have prompted similar criticism. See, e.g., Solorzano-Patlan v. INS, 207 F.3d 869, 874 (7th Cir. 2000) (noting that need for uniform interpretation of immigration statutes leads federal courts to develop common definitions of terms such as "burglary");
167. Iris Bennett, Note, The Unconstitutionality of Nonuniform Immigration Consequences of "Aggravated Felony" Convictions, 74 N.Y.U. L. Rev. 1696, 1730-34 (1999) (arguing that federal courts should develop "uniformity requirement" in immigration law in order to "prevent ununiform immigration consequences for state law criminal convictions, promote fairness, and ensure that immigration law is consonant with the Constitution").
168. Naturalization generally is available to permanent residents who have resided continuously for five years in the United States (three years if married to a citizen), satisfy a local residency requirement, pass an English and a civics test, demonstrate good moral character, and take an oath of allegiance. See 8 U.S.C. §§ 1423, 1427, 1430, 1448 (1994 & Supp. V 1999); 8 C.F.R. §§ 312, 316, 319.1, 337 (2000).
169. A naturalization applicant must reside within the state or INS district from which she applies "for at least three months" before making her application, and continuously thereafter. 8 U.S.C. § 1427(a) (Supp. V 1999). At the time Graham was decided, the statute established a six-month state residency requirement. 8 U.S.C. § 1427(a) (1970).
170. See Truax v. Raich, 239 U.S. 33, 34 (1915) (holding denial of employment to be tantamount to denial of entrance and abode and, therefore, preempted by federal immigration law).
171. Far-fetched, but not impossible. One amicus brief to the Graham Court made this point. See Brief of Amicus Curiae Center on Social Welfare Policy and Law at 10, Graham (No. 609) (on file with the New York University Law Review) (stating that "[w]hen the emergency arises and [a permanent resident] requires assistance, he is forced to emigrate from Arizona to seek assistance elsewhere, thereby terminating his federally required period of state residence for purposes of naturalization" under 8 U.S.C. § 1427(a)).
172. The Justices would not have been alone. See, e.g., Carrasco, supra note 146, at 631 (arguing that federal permission for state welfare discrimination against immigrants "is inconsistent with the Naturalization Clause because it authorizes nonconformity within the immigration policy of the United States"); Harold G. Maier, Preemption of State Law: A Recommended Analysis, 83 Am. J. Int'l L. 832, 832 n.2, 834 n.14 (1989).
173. On one occasion between the Graham decision and the enactment of the PRA, Congress enacted a narrow provision permitting states to deny welfare benefits to a small class of permanent residents. Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, § 201, 100 Stat. 3359, 3394 (codified at 8 U.S.C. § 1255a(h)(1) (1994)) (authorizing states to deny financial or medical assistance for five years from date alien is granted "temporary resident" status under amnesty provision and including aliens who adjust to permanent resident status in less than five years pursuant to § 1255a(b)(1)(A)). Apparently no state accepted this federal invitation to deny benefits to permanent residents, Carrasco, supra note 146, at 596 n.23, but the hypothetical possibility led Professor Carrasco to examine the rationale and offer additional theories in opposition to federal authorization of state anti-immigrant classification, id. at 625 (suggesting that "ratchet theory" of Fourteenth Amendment "precludes Congress from using its Section Five power to authorize states to deny benefits to newly legalized aliens"); id. at 626-31 (suggesting that 1986 statute violates "nondelegation doctrine"). Carrasco is no doubt correct that Section 5 of the Fourteenth Amendment does not empower Congress to "dilute" the Fourteenth Amendment's guarantee of equal protection, but I cannot imagine the government defending the PRA as authorized by Section 5. As to the nondelegation doctrine, while it may not be quite so "dead" as previously reported, cf. Whitman v. Am. Trucking Ass'ns, Nos. 99-1257, 99-1426, 2001 WL 182549, at *8-*10 (U.S. Feb. 27, 2001) (reversing Court of Appeals determination that portions of Clean Air Act violated nondelegation doctrine), it derives from "the principle of separation of powers," Mistretta v. United States, 488 U.S. 361, 371 (1989), and "the nondelegation doctrine[ ] simply [is] not implicated by Congress's 'delegation' of power to the states," Ky. Div., Horsemen's Benevolent & Protective Ass'n v. Turfway Park Racing. Ass'n, 20 F.3d 1406, 1417 (6th Cir. 1994).
174. See, e.g., Aleinikoff, Martin & Motomura, supra note 46, at 194, 511-14; Bosniak, supra note 54, at 1047; Martin, supra note 66, at 190-204; Michael Scaperlanda, Partial Membership: Aliens and the Constitutional Community, 81 Iowa L. Rev. 707 (1996);
175. Margaret Taylor, Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine, 22 Hastings Const. L.Q. 1087 (1995).
176. Bosniak, supra note 54, at 1087-1101.
177. For a particularly thoughtful examination of the theoretical underpinnings of this approach, see Bosniak, supra note 54. Employing the work of political theorist Michael Walzer, see Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (1983), Linda Bosniak contends that immigration and alienage cases are understood best as reflecting "a deep uncertainty and conflict over the proper scope of the government's authority to regulate membership . . . . The chronic question that drives the doctrine is when and to what degree membership regulation properly subsumes matters of alien status beyond the border," Bosniak, supra note 54, at 1089. Bosniak identifies two broad responses to this conflict, which she terms the "separation" and "convergence" models: [The former] supports a minimalist understanding of the scope of the government's authority to regulate membership and urges a relatively strict separation between the membership domain and the domain of territorial personhood. The other supports an expansive understanding of the proper domain of membership regulation and argues that membership concerns are rightfully part of the regulation of social relationships among all territorially present persons. Id. at 1138.
178. T. Alexander Aleinikoff, Federal Regulation of Aliens and the Constitution, 83 Am. J. Int'l L. 862, 869 (1989) (emphasis omitted); see also Rosberg, supra note 44, at 338 (."[E]ven where the federal government is exercising its undeniable power to establish immigration policy . . . its power must still be confined within constitutional limits.").
179. 426 U.S. 67 (1976) (upholding restriction on eligibility of legal permanent residents for Medicare Plan B, federal medical insurance program, after subjecting provision to equivalent of rationality review); see also cases cited supra note 41.
180. While implicitly critical of the Court's ruling in Mathews, Bosniak does not attempt to apply her theory to the Court's conclusion that denial of Medicare Plan B benefits to newly arrived immigrants is (at least in part) a bona fide regulation of immigration and national borders. See Bosniak, supra note 54, at 1101-10. Agreement on any guidelines may not be possible absent consensus on the fundamental debate regarding the reach of legitimate border regulation into the lives of territorially resident immigrants.
181. 8 U.S.C. § 1227(a)(5) (Supp. V 1999) ("Any alien who, within five years after the date of entry, has become a public charge from causes not affirmatively shown to have arisen since entry [is deportable].").
182. Id. § 1227(a)(1)(C)(i) (stating that nonimmigrant who "has failed . . . to comply with the conditions" of admission, such as prohibition on employment, is deportable).
183. See Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471 (1999) (discussing deportation provisions regarding membership in designated organizations and speech and associational activities relating to organizations designated as terrorist).
184. 8 U.S.C. § 1227(a)(2).
185. Id. § 1227(a)(1)(G).
186. AADC, 525 U.S. at 473 (reviewing deportation proceedings for "failure to maintain student status").
187. See, e.g., 8 U.S.C. § 1324a(a)(1) (1994) (prohibiting employment of immigrants who lack work authorization); id. § 1612(a)(1), (a)(3) (Supp. V 1999) (restricting eligibility of legal immigrants for federal SSI and Food Stamps programs); Exec. Order No. 11,935, 5 C.F.R. § 7.4 (2000) (prohibiting employment of all noncitizens in federal Civil Service, subject to limited exceptions on temporary basis), reprinted in 5 U.S.C. app. at 667.
188. 8 U.S.C. § 1227(a)(5).
189. Id. § 1613(a) (stating that qualified alien who enters United States on or after August 22, 1996 "is not eligible for any Federal means-tested public benefit for a period of 5 years beginning on the date of the alien's entry"). In this regard, it also must be noted that Congress chose to codify the PRA's immigrant provisions in Title 8 of the U.S. Code, where the Immigration and Nationality Act is codified, rather than in Title 42, where many federal welfare provisions appear.
190. See id. § 1227(a)(1)(C)(i) ("Any alien who was admitted as a nonimmigrant and who has failed . . . to comply with the conditions of such status, is deportable.").
191. See, e.g., id. § 1324a(a)(1) (1994) (prohibiting employment of aliens who lack work authorization); Hampton v. Mow Sun Wong, 426 U.S. 88, 99-105 (1976) (approving citizenship requirement for federal civil service where government supplies rational basis).
192. 8 U.S.C. § 1601(7) (Supp. V 1999).
193. See supra note 167.
194. Some have so stated. See, e.g., Montero v. INS, 124 F.3d 381, 384 (2d Cir. 1997) ("The primary purpose of the provision [8 U.S.C. § 1324a, prohibiting employment of unauthorized aliens] was to reduce the flow of illegal immigration into the United States by removing the employment 'magnet' that draws undocumented aliens into the country . . . ." (citing H.R. Rep. No. 99-682, pt. 1, at 45-46, 56 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5649-50, 5660)); Aleinikoff, Martin & Motomura, supra note 46, at 602 ("Virtually all scholars agree that economic factors provide the most common incentive for illegal entry and residence . . . .").
195. See, e.g., Borjas, supra note 105, at 105 ("[T]he empirical link between immigration and welfare is indisputable."). Even scholars arguing for a liberalization of U.S. immigration policies have characterized welfare laws as an aspect of immigration lawmaking. See, e.g., Howard F. Chang, Migration as International Trade: The Economic Gains from the Liberalized Movement of Labor, 3 UCLA J. Int'l L. & Foreign Aff. 371, 390 (1998) ("A country of immigration may implement a positive tariff on immigration . . . through restrictions on immigrant access to public entitlement programs.").
196. The contested standard for judicial review of legislative factfinding has been at the center of some of the Supreme Court's recent federalism cases. Compare Bd. of Trs. v. Garratt, No. 99-1240, 2001 WL 173556, at *8-*11 (U.S. Feb. 21, 2001) (holding that Congress lacked sufficient evidence of disability discrimination to abrogate state sovereign immunity in Americans with Disabilities Act), with id. at *16 (Breyer, J., dissenting) ("If any state of facts reasonably can be conceived that would sustain challenged legislation, then there is a presumption of the existence of that state of facts." (internal quotation marks omitted)).
197. The principal example may be Wong Wing v. United States, 163 U.S. 228 (1896), in which the Supreme Court rejected the argument of the federal government that it could imprison an alien at hard labor for violation of an immigration law, without providing a trial by jury. Id. at 236-38; see also Bosniak, supra note 54, at 1097.
198. The "political function" cases, in which the Supreme Court upheld state alienage classifications, may be understood as driven by legitimate concerns about admission to membership in a state political community. See Cabell v. Chavez-Salido, 454 U.S. 432 (1982); Ambach v. Norwick, 441 U.S. 68 (1979); Foley v. Connelie, 435 U.S. 291 (1978); Bosniak, supra note 54, at 1112. However, the Court's determination of the scope of the "political function" exception has been overly expansive. See Koh, supra note 44, at 83.
199. Imagine that Congress declared the establishment of affirmative action programs served to attract talented, desirable immigrants of color or women immigrants, and therefore furthered critical immigration policies. Should courts defer to the classification as "immigration law" and therefore the legislative choice? Or imagine the converse: Congress abolishes affirmative action programs, declaring that such an action would serve to attract talented, desirable white male immigrants who otherwise would not come to this country, and therefore the abolition furthered critical immigration policies. Plainly, broad judicial deference to Congress's conclusion that a particular statute is an immigration rule would produce absurd results.
200. In addition to compelling courts to engage in extensive review of legislative factfinding (as to whether, for example, the availability of certain public benefits or employment opportunities in fact contributes to border regulation), there is no obvious constitutional grounding for the theory and no constitutional standards to be applied.
201. See supra note 80.
202. See id.
203. The Mathews decision was joined without concurrence or dissent by everyone from Justices Brennan, Marshall, and Blackmun (who wrote many of the Court's modern decisions invalidating state alienage classifications), to Justice Rehnquist (often the sole dissenter in the state alienage cases). The opinion is discussed supra notes 67-72 and accompanying text. Lower courts also have applied the Mathews decision without hesitation in a series of post-1996 challenges to new federal alienage classifications. See cases cited supra note 41.
204. I take this to be the heart of Graham and its progeny.
205. See supra notes 49-50 and accompanying text.
206. I view this as the core of Mathews, see supra notes 67-72, although I believe the principle was applied wrongly in Mathews. Federal discrimination against immigrants should be subject to heightened scrutiny, and the Medicare discrimination in Mathews should not have passed this standard, even taking account of foreign affairs considerations.
207. See Helen Hershkoff & Stephen Loffredo, The Rights of the Poor 121 n.224 (1997) ("[The PRA] delegates broad authority to fifty state governments to adopt fifty different, uncoordinated, and inconsistent state policies toward immigrants, policies over which the federal government has no control."); Wheeler, supra note 7, at 1255 (stating that constitutional question raised by PRA is as follows: "[A]ssuming the provision of state public benefits can be controlled by the federal government, as part of its foreign policy powers, can the federal government delegate that authority to the states?").
208. Graham v. Richardson, 403 U.S. 344 (1971).
209. Mathews v. Diaz, 426 U.S. 67, 79-82 (1976).
210. Id. at 85.
211. See infra notes 193-204 and accompanying text.
212. That the PRA addresses preemption, a second and independent ground for decision in Graham, see 403 U.S. at 376-80, is necessary but not sufficient to a defense of post-PRA discrimination by the states.
213. The most famous example is probably INS v. Chadha, 462 U.S. 919 (1983), in which the Court declared the legislative veto unconstitutional. Fundamental to the Court's reasoning in Chadha was the conviction that even when Congress exercises its "plenary immigration power," the legislature is bound by the Constitution's other structural requirements, there bicameralism and presentment. Id. at 952-55. But of perhaps greater relevance to the devolvability question is the Court's opinion in Hampton v. Mow Sun Wong, 426 U.S. 88 (1976), handed down the same day as Mathews. In Mow Sun Wong, the Court invalidated federal Civil Service Commission regulations barring the employment of immigrants over the objections of the Civil Service Commission that the citizenship requirement was justified "as an exercise of the plenary federal power over immigration and naturalization." Id. at 99. The Court rejected this last contention after concluding that the agency in fact was not authorized to exercise any immigration power. Id. at 114 ("[The Civil Service Commission] has no responsibility for foreign affairs, for treaty negotiations, for establishing immigration quotas or conditions of entry, or for naturalization policies . . . ."); see also Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 Va. J. Int'l L. 201, 211-12 (1994) (noting that in Mow Sun Wong, "the Court held that a federal interest in immigration and alienage matters must be articulated by those who are institutionally competent to do so"). Shortly after the Court's decision, President Gerald Ford issued an Executive Order establishing an alienage classification substantially similar to that struck down in Mow Sun Wong. Exec. Order No. 11,935, 5 C.F.R. § 7.4 (2000), reprinted in 5 U.S.C. app. at 667.
214. In infra Part IV, I attempt to identify and answer possible objections to this conclusion.
215. 92 U.S. 275 (1875).
216. Id. at 277.
217. Id. at 280 (emphasis added); see also Henderson v. Wickham, 92 U.S. 259 (1875) (invalidating state regulation of immigration). Both Chy Lung and Henderson followed the Court's decision in The Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283 (1849), which had invalidated as violative of the Foreign Commerce Clause state taxes on the importation of immigrant passengers. The Court's decision in The Passenger Cases represented something of a reversal of its earlier determination that a city rule regarding importation of immigrant passengers was not unconstitutional. See Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837). By the post-Civil War era, federal power in this regard was unquestioned. See The Head Money Cases, 112 U.S. 580 (1884) (upholding federal tax on importation of immigrant passengers).
218. 424 U.S. 351 (1976). The California statute at issue in De Canas subsequently was preempted by the Immigration Reform and Control Act of 1986 § 101, 8 U.S.C. § 1324a(h) (1994).
219. De Canas, 424 U.S. at 355-56.
220. Id. at 354 (emphasis added). Even as to undocumented immigrants, moreover, a state's power to legislate, and especially to discriminate, is limited. See Plyler v. Doe, 457 U.S. 202, 230 (1982) (invalidating Texas law barring undocumented children from attending public schools as violative of
221. See, e.g., United States v. Valenzuela-Bernal, 458 U.S. 858, 864 (1982) ("The power to regulate immigration - an attribute of sovereignty essential to the preservation of any nation - has been entrusted by the Constitution to the political branches of the Federal Government."); Toll v. Moreno, 458 U.S. 1, 10 (1982) ("Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders."); Plyler, 457 U.S. at 225 ("The States enjoy no power with respect to the classification of aliens. This power is 'committed to the political branches of the Federal Government.'" (quoting Mathews v Diaz, 426 U.S. 67, 81 (1976)) (citation omitted)); Nyquist v. Mauclet, 432 U.S. 1, 7 n.8 (1977) ("Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the States."); Hampton v. Mow Sun Wong, 426 U.S. 88, 101 n.21 (1976) ("[T]he authority to control immigration is . . . vested solely in the Federal Government, rather than the States . . . ."); Mathews v. Diaz, 426 U.S. 67, 81 (1976) ("[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government."); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 416 (1948) ("The authority to control immigration - to admit or exclude aliens - is vested solely in the Federal Government."); Hines v. Davidowitz, 312 U.S. 52, 68 (1941) ("[T]he power to restrict, limit, regulate, and register aliens as a distinct group is not an equal and continually existing concurrent power of state and nation, but that whatever power a state may have is subordinate to supreme national law."); see also Edmond v. Goldsmith, 183 F.3d 659, 664 (7th Cir. 1999) (Posner, C.J.) (describing "sovereign powers over foreign relations, foreign commerce, citizenship, and immigration that states and cities do not possess" (citation omitted)).
222. Chae Chan Ping v. United States, 130 U.S. 581 (1889).
223. Id. at 609.
224. Id.
225. See Calbeck v. Travelers Ins. Co., 370 U.S. 114, 118 (1962) (noting past decisions in which Court held that Congress may not devolve powers of maritime law); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 163-64 (1920) (same); White v. Hart, 80 U.S. (13 Wall.) 646, 649 (1871) (noting that Congress may not authorize by statute violation of Contract Clause); Van Allen v. Assessors, 70 U.S. (3 Wall.) 573, 585 (1865) (recognizing that Congress may not devolve taxation power). But see Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 207 (1824) ("Although congress cannot enable a state to legislate, congress may adopt the provisions of a state on any subject."); Henkin, supra note 33, at 433-34 n.56 ("Although never overruled, it is unlikely that [Knickerbocker] still express[es] constitutional limits on Congressional authority, since the Court later allowed Congress to adopt state law in other areas" (citing Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946), and Davis v. Dep't of Labor & Indus., 317 U.S. 249 (1942))).
226. Chae Chan Ping, 130 U.S. at 609.
227. Toll v. Moreno, 458 U.S. 1, 10 (1982).
228. U.S. Const. art. I, § 8, cl. 4.
229. Id. art. I, § 8, cl. 10 ("To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations . . . ."); id. art. I, § 8, cl. 11 ("To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water . . . ."); id. art. II, § 2, cl. 2 (stating that President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties . . . and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors").
230. Id. art. I, § 8, cl. 3.
231. See, e.g., Toll, 458 U.S. at 10 (describing immigration power as arising from naturalization, foreign commerce, and foreign affairs powers); Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976) (listing sources of immigration power); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) (describing immigration as inherent sovereign power). See generally Aleinikoff, Martin & Motomura, supra note 46, at 185-95 (discussing sources of federal immigration power).
232. U.S. Const. art. I, § 8, cl. 4.
233. Cf. id. art. I, § 10 (expressly forbidding States from engaging in certain activities, without mention of naturalization).
234. See Michael T. Hertz, Limits to the Naturalization Power, 64 Geo. L.J. 1007, 1025 (1976) (arguing that naturalization is area "in which the state has no legitimate interest and over which Congress has exclusive authority").
235. Chirac v. Chirac's Lessee, 15 U.S. (2 Wheat.) 259, 269 (1817) (declining to apply Maryland statute that would have required French property owner to naturalize).
236. Houston v. Moore, 18 U.S. (5 Wheat.) 1, 49 (1820) (citing Chirac, 15 U.S. (2 Wheat.) at 269); see also United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898) ("The power, granted to Congress by the Constitution, 'to establish an uniform rule of naturalization,' was long ago adjudged by this court to be vested exclusively in Congress."); Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 160 (1892) ("The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so.").
237. See, e.g., Nyquist v. Mauclet, 432 U.S. 1, 10 (1977) ("Control over . . . naturalization is entrusted exclusively to the Federal Government, and a State has no power to interfere."); see also Nemetz v. INS, 647 F.2d 432, 435-36 (4th Cir. 1981) (stating that naturalization is exclusively federal power).
238. See Carrasco, supra note 146, at 631-32 (reviewing history of Naturalization Clause and noting clear intent of Framers that naturalization would be exclusively federal power); Hertz, supra note 212, at 1009-13 (same); Bennett, supra note 146, at 1704-05 (same).
239. The Declaration of Independence para. 9 (U.S. 1776) ("[King George III] has endeavoured to prevent the Population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; [and] refusing to pass others to encourage their migration hither . . . .").
240. Articles of Confederation art. IV (1781).
241. The Federalist No. 42, at 269 (James Madison) (Clinton Rossiter ed., 1961) ("The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions . . . ."); Hertz, supra note 212, at 1009; Bennett, supra note 146, at 1704.
242. Articles of Confederation art. IV (1781).
243. Agrippa, Letter to the Massachusetts Gazette (Dec. 28, 1787), reprinted in Essays on the Constitution of the United States 79, 79 (Paul Leicester Ford ed., 1892), quoted in Carrasco, supra note 146, at 631-32 n.204; see also Carrasco, supra note 146, at 631-32; Hertz, supra note 212, at 1009.
244. Bennett, supra note 146, at 1705.
245. Carrasco, supra note 146, at 632; Hertz, supra note 212, at 1009-13; see also The Federalist No. 32, at 198-99 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (stating that naturalization power is "exclusively delegated" to federal government and that state naturalization authority would be "absolutely and totally contradictory and repugnant" to constitutional scheme, for "if each State had power to prescribe a DISTINCT RULE, there could not be a UNIFORM RULE"); The Federalist No. 42, at 269-71 (James Madison) (Clinton Rossiter ed., 1961) (noting that "[t]he dissimilarity in the rules of naturalization has long been remarked as a fault in our system," and so was necessary to remedy such defects in Constitution).
246. See 8 U.S.C. § 1427(a) (1994 & Supp. V 1999) (requiring that naturalization applicant be "a person of good moral character" from five years preceding date of application through date of naturalization). A person who has admitted to or been convicted of certain crimes or other bad acts during the relevant period, or who has been convicted of an "aggravated felony" at any time since November 1990, may be precluded from establishing "good moral character." Id. § 1101(f). In 1981, Congress eliminated one provision that had prompted federal courts to consider the propriety of incorporation of state law standards: the provision that had prohibited adulterers from establishing "good moral character." Immigration and Nationality Act Amendments of 1981, Pub. L. No. 97-116, § 2(c)(1), 95 Stat. 1611, 1611 (repealing 8 U.S.C. § 1101(f)(2) (1976)).
247. See Solorzano-Patlan v. INS, 207 F.3d 869, 874 (7th Cir. 2000) (need for uniformity in immigration law compels courts to develop federal common law of "burglary" as that term is used in immigration statutes, rather than to incorporate divergent state criminal law definitions). Compare Nemetz v. INS, 647 F.2d 432,435 (4th Cir. 1981) (rejecting reliance on Virginia antisodomy statute to interpret "good moral character" requirement for naturalization purposes, because "reference to laws which vary from state to state can only lead to differing and often inconsistent results" and ignores "the constitutional mandate of uniformity in the area of naturalization"), Moon Ho Kim v. INS, 514 F.2d 179, 181 (D.C. Cir. 1975) (same, as to state law definitions of adultery), Wadman v. INS, 329 F.2d 812, 816-17 (9th Cir. 1964) (same, as to adultery), and In re Schroers, 336 F. Supp. 1348, 1349 (S.D.N.Y. 1971) ("[U]niformity . . . cannot be attained if resort is had to the laws of the 50 states to determine whether a particular applicant for citizenship has committed adultery."), with Brea-Garcia v. INS, 531 F.2d 693, 696-98 (3d Cir. 1976) (disagreeing with Wadman and Moon Ho Kim regarding need for uniform federal definition of "adultery" in disregard of state law in deportation case).
248. The Naturalization and Bankruptcy Clauses share the phrase "uniform . . . throughout the United States. U.S. Const. art. I, § 8, cl. 4 ("To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States . . . ."). The proposal to combine these otherwise unrelated clauses originated with the Committee on Style, apparently because of the linguistic rather than substantive relationship between the draft provisions. Hertz, supra note 212, at 1012.
249. 186 U.S. 181 (1902).
250. Id. at 190; see also id. at 188 ("[U]niformity is geographical and not personal, and we do not think that the provision of the act of 1898 as to exemptions is incompatible with the rule.").
251. See Blanchette v. Conn. Gen. Ins. Corp. (Regional Rail Reorganization Act Cases), 419 U.S. 102, 159 (1974) ("[T]he uniformity clause [in bankruptcy] was not intended to hobble Congress by forcing it into nationwide enactments to deal with conditions calling for remedy only in certain regions."); Vanston Bondholders Protective Comm. v. Green, 329 U.S. 156, 172 (1946) (Frankfurter, J., concurring) ("To establish uniform laws of bankruptcy does not mean wiping out the differences among the forty-eight States in their laws governing commercial transactions."); Wright v. Vinton Branch of Mountain Trust Bank, 300 U.S. 440, 463 n.7 (1937) (noting that federal bankruptcy law accommodates different state property laws).
252. See Judith Koffler, The Bankruptcy Clause and Exemption Laws: A Reexamination of the Doctrine of Geographic Uniformity, 58 N.Y.U. L. Rev. 22, 101-06 (1983) (arguing for rejection of Moyses doctrine and revival of spirit of uniformity as understood by Framers);
253. Note, Bankruptcy Exemptions: Whether Illinois's Use of the Federal 'Opt Out' Provision Is Constitutional, 1981 S. Ill. U. L.J. 65, 72-73 (noting that debtor arguing for application of true uniformity doctrine must establish that Moyses was decided incorrectly). The federal bankruptcy code continues the practice and permits a state "opt-out" of default federal exemptions. 11 U.S.C. § 552(b) (1994).
254. See Moyses, 186 U.S. at 187 (claiming that Framers intended that "the States, in surrendering the [bankruptcy] power, did so only if Congress chose to exercise it, but in the absence of congressional legislation retained it"); see also Brown v. Smart, 145 U.S. 454, 457 (1892) ("So long as there is no national bankruptcy act, each state has full authority to pass insolvent laws binding persons and property within its jurisdiction . . . .").
255. U.S. Const. art. I, § 8, cl. 4 (emphasis added).
256. Hertz, supra note 212, at 1012, 1015-17; cf. Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 748-49 (1999) (describing mode of constitutional interpretation that examines clauses in light of use of similar words and phrases elsewhere in document).
257. U.S. Const. art. I, § 8, cl. 1 ("The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises . . . but all Duties, Imposts, and Excises shall be uniform throughout the United States.").
258. See Knowlton v. Moore, 178 U.S. 41, 83-109 (1900) (holding that uniformity requirement of Taxation Clause requires uniformity across geographic jurisdictions even if tax itself was not "internally" uniform, that is, tax rate could be progressive or include exemptions). The Knowlton view remains the modern one. See, e.g., United States v. Ptasynski, 462 U.S. 74, 84-85 (1983); Steward Machine Co. v. Davis, 301 U.S. 548, 583 (1937); Apache Bend Apartments, Ltd. v. United States, 702 F. Supp. 1285, 1292 (N.D. Tex. 1988), aff'd, 964 F.2d 1556 (5th Cir. 1992).
259. The separate proposition that the federal government's foreign affairs powers arise in part from extraconstitutional, nontextual sources, and the theory's implications for the devolvability of the federal immigration power, are discussed infra notes 288-305 and accompanying text.
260. See United States v. Pink, 315 U.S. 203, 233 (1942) ("Power over external affairs is not shared by the States; it is vested in the national government exclusively."); United States v. Belmont, 301 U.S. 324, 331 (1937) ("[I]n respect of our foreign relations generally, state lines disappear. As to such purpose the State . . . does not exist."); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 317 (1936) ("The Framers' Convention was called and exerted its powers upon the irrefutable postulate that though the states were several their people in respect of foreign affairs are one."); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 606 (1889) ("For local interests the several States of the Union exist, but for national purposes, embracing our relations with foreign nations, we are but one people, one nation, one power . . . ."); Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 575 (1840) ("It was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation . . . ."); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 228 (1824) (Johnson, J., concurring) ("The States are unknown to foreign nations . . . ."). As Henkin points out, "[e]ven in the Articles of Confederation, the states had left themselves little independent authority in foreign relations." Henkin, supra note 33, at 149. That also was the case under the Constitution of the Confederate States. Id. at 422 n.2.
261. See, e.g., The Federalist No. 42, at 264 (James Madison) (Clinton Rossiter ed., 1961) ("If we are to be one nation in any respect, it clearly ought to be in respect to other nations.").
262. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982); Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976).
263. On the states and foreign relations generally, see Henkin, supra note 33, at 149-69; Richard B. Bilder, The Role of States and Cities in Foreign Relations, 83 Am. J. Int'l L. 821 (1989); Maier, supra note 151; John Norton Moore, Federalism and Foreign Relations, 1965 Duke L.J. 248, 297-319. Those few cases and commentaries that have examined issues of federalism in foreign affairs fall into two broad categories: (1) those that evaluate the rare attempts by states to exercise one of the few foreign affairs powers allowed them by the Constitution, subject to congressional approval, and (2) those that consider the far more common circumstance of an ordinary exercise of state power that may affect foreign affairs and therefore be subject to a dormant foreign affairs preemption. See Zschernig v. Miller, 389 U.S. 429, 432 (1968) (holding that dormant foreign affairs preemption bars application of Oregon escheat statute to putative East German heirs). There is a significant literature concerning the proper scope of this dormant foreign affairs preemption. See, e.g., Brannon P. Denning & Jack H. McCall, Jr., The Constitutionality of State and Local "Sanctions" Against Foreign Countries: Affairs of State, States' Affairs, or a Sorry State of Affairs?, 26 Hastings Const. L.Q. 307, 310-11 (1999) (arguing that state and local sanctions on foreign countries are unconstitutional);
264. David Schmahmann & James Finch, The Unconstitutionality of State and Local Enactments in the United States Restricting Business Ties with Burma (Myanmar), 30 Vand. J. Transnat'l L. 175, 179 (1997) (concluding that city and state sanctions on Myanmmar violate preemption doctrine);
265. Shawna Fullerton, Note, State Foreign Policy: The Legitimacy of the Massachusetts Burma Law, 8 Minn. J. Global Trade 249, 260-64 (1999) (concluding that Massachusetts Burma law runs afoul of preemption);
266. Grace A. Jubinski, Note, State and Municipal Governments React Against South African Apartheid: An Assessment of the Constitutionality of the Divestment Campaign, 54 U. Cin. L. Rev. 543, 572-75 (1985) (arguing that state South Africa divestment legislation might not violate preemption doctrine);
267. Lori A. Martin, Comment, The Legality of Nuclear Free Zones, 55 U. Chi. L. Rev. 965, 965 (1988) (arguing that preemption doctrine is biggest obstacle to Nuclear Free Zones);
268. Peter J. Spiro, Note, State and Local Anti-South Africa Action as an Intrusion upon the Federal Power in Foreign Affairs, 72 Va. L. Rev. 813, 815 (1986) (concluding that local sanctions against South Africa may be preempted). The Supreme Court sidestepped an opportunity to revisit the topic of dormant foreign affairs preemption at the end of its last term. See Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288, 2294 n.8 (2000). A related debate has arisen concerning the compatibility of federal courts' incorporation of customary international law (CIL) and federalism. See Bradley, supra note 33, at 402-09 (warning that greater power of treaties to preempt state law than that of Congress could be used to overcome federalism restraints);
269. Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 861-70 (1997) (arguing that CIL is not supreme over state law unless incorporated into federal law by political branches);
270. Goldsmith, supra note 33, at 1664-65 (arguing that absent action by federal political branches to incorporate CIL, interpretation should be left to state courts); Spiro, supra note 33, at 1226 (calling for abandonment of exclusivity principle, including inclusion of CIL in federal common law, as no longer justified infringement on state authority). But see Flaherty, supra note 33, at 1280 (arguing that federal foreign affairs doctrine does and should trump prohibition against federal government enlisting state officials); Harold H. Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1827 (1998) (challenging notion that federal courts should not apply CIL without Congressional authorization as chaotic and not in spirit of federalism).
271. See Henkin, supra note 33, at 149-51 (explaining that under U.S. Constitution, foreign affairs are national affairs, leaving states limited room for independent participation); Moore, supra note 240, at 297 ("It is a generally accepted constitutional principle that the states have no independent foreign affairs powers as such . . . .").
272. See U.S. Const. art. I, § 10, cls. 2-3 (permitting states, with consent of Congress, to engage in war, enter into agreement or compact with foreign nation, lay certain duties or imposts on exports, imports, and tonnage, and keep troops or ships of war in time of peace).
273. Id. art. I, § 8, cls. 10-11.
274. Id. art. II, § 2, cl. 2.
275. Id. art. II, §§ 2-3.
276. See Henkin, supra note 33, at 14-15 (identifying power "to regulate immigration" as among the "missing" foreign relations powers that "were clearly intended for, and have always been exercised by, the federal government"). Although the Foreign Commerce Clause, U.S. Const. art. I, § 8, cl. 3, often is treated as a further source of a general foreign affairs power, the Supreme Court has identified it as a discrete source of the immigration power, see supra note 209, and for that reason I examine it separately, see infra notes 267-85 and accompanying text.
277. U.S. Const. art. I, § 10, cl. 1.
278. Id. art. I, § 10, cl. 3 (emphasis added).
279. Congress has approved few formal compacts between a state and another nation. Henkin, supra note 33, at 153 (listing examples); see also id. at 155 ("[S]tate and local authorities have in fact entered into agreements and arrangements with foreign counterparts without seeking consent of Congress, principally on matters of common local interest, such as the coordination of roads, police cooperation, [or] border control.").
280. One might contend as well that the Tenth Amendment's reservation to the states of powers not conferred on the federal government demonstrates a textual basis for state power to regulate immigration. The Supreme Court and commentators generally have not suggested, however, that the gaps in the Constitution's enumeration of foreign affairs powers must be understood, in light of the Tenth Amendment, as leaving to the states all unenumerated foreign affairs powers. See Missouri v. Holland, 252 U.S. 416, 434 (1920) (rejecting Tenth Amendment challenge to federal migratory bird treaty and implementing statute, concluding that neither treaty nor statute "is forbidden by some invisible radiation from the general terms of the Tenth Amendment").
281. And if a state is empowered to enter into an "Agreement or Compact" with congressional approval, then it presumably is empowered as well to negotiate with a foreign country to achieve an "Agreement or Compact." Henkin, supra note 33, at 156 n.†.
282. 39 U.S. (14 Pet.) 540 (1840).
283. Id. at 570.
284. Id. at 572. In the alternative, Taney concluded that the extradition power was an exclusively federal one and could not be exercised by the states at all. See id. at 574-79.
285. Id. at 581 (opinion of Thompson, J.); id. at 588 (opinion of Barbour, J.); id. at 596 (opinion of Catron, J.); id. at 619 (opinion of Baldwin, J.).
286. See Felker v. Turpin, 518 U.S. 651, 660-61 (1996) (holding that provision of Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, did not eliminate Court's jurisdiction to adjudicate original habeas corpus petitions because Act explicitly barred certain modes of review but made no mention of original petitions).
287. What sort of negative implications, if any, could be derived from the Compact Clause was an aspect of the recent exchange regarding the constitutionality of the North American Free Trade Agreement (NAFTA). Compare Laurence Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1270-71 (1995) (suggesting that Constitution's express grant of congressional power to approve state compacts with foreign nations implies lack of similar congressional power to approve executive agreements with foreign nations, outside ordinary treaty approval requirements of Section 2 of Article II),
288. with Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 Harv. L. Rev. 799, 919-20 (1995) (arguing that Articles I and II present independent grants of power sufficient to create international obligations). See generally Made in the U.S.A. Found, v. United States, No. 99-13138, 2001 WL 194857 (11th Cir. Feb. 27, 2001) (dismissing challenge to NAFTA as "treaty" requiring Senate ratification on grounds that objection is nonjusticiable political question).
289. See Bradley & Goldsmith, supra note 240, at 863 (stating: [T]he natural inference is that Article I, Section 10's self-executing limitations on state power in foreign relations are exhaustive and that other foreign relations activities fall within the concurrent authority of the state and federal governments until the federal political branches exercise their foreign relations powers in a manner that preempts state law.).
290. See U.S. Const. art I, § 10, cl. 1.
291. See id. art. I, § 8, cl. 4 (requiring "an uniform Rule of Naturalization . . . throughout the United States"); id. art. I, § 8, cl. 17 (authorizing Congress to "exercise exclusive Legislation" over military property and what could become District of Columbia (emphasis added)).
292. See Tribe, supra note 257, at 1246 ("There are national responsibilities that simply may not be delegated to the states.").
293. U.S. Const. art. I, § 8, cl. 9.
294. See, e.g., Henkin, supra note 33, at 428 n.33 ("Surely, constitutional provisions that give Congress power to legislate in regard to U.S. courts . . . deny such power to the states.").
295. There are important exceptions in the realms of refugee and asylum law, however. See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, § 2242, 112 Stat. 2681, 2681-82 (implementing United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988)); Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (implementing United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 268).
296. See Henkin, supra note 33, at 149-50 & 422 nn.1-2 (listing commentators).
297. A word about the contemporary debate regarding "dormant" foreign affairs preemption is appropriate, if only to distinguish that discussion from the issues raised by an attempted devolution of the federal immigration power. The more common circumstance in which federalism concerns arise in foreign affairs occurs when a state or local authority exercises ordinary police or spending powers in a way that directly or potentially affects national foreign policy. The courts have dealt with state intrusion into foreign affairs by applying a preemption doctrine, which in its most expansive form embraces a broad "dormant" foreign affairs preemption. See, e.g., United States v. Pink, 315 U.S. 203, 233 (1942) (asserting that "[p]ower over external affairs" lies in national, rather than state, governmental focus); United States v. Belmont, 301 U.S. 324, 330 (1937) ("Governmental power over external affairs is not distributed, but is vested exclusively in the national government."). The most forceful statement of this "dormant" foreign affairs preemption appears in Zschernig v. Miller, 389 U.S. 429 (1968), where the Supreme Court held that application of an Oregon escheat statute to putative East German heirs was an impermissible "intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and Congress," id. at 432, notwithstanding the U.S. government's disclaimer of any contention that "'application of the Oregon escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign relations,'" id. at 434 (quoting Brief of Amicus Curiae United States at 6 n.5, Zschernig (No. 21)). Academic commentators recently have mounted a challenge to Zschernig's muscular notion of a "dormant" foreign affairs preemption. See supra notes 33-34, 240. As recently as 1999, the First Circuit applied Zschernig to invalidate a Massachusetts law barring state procurement from companies that do business with Burma. See Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999). The Supreme Court affirmed on other grounds, but declined an express invitation to revisit Zschernig. Crosby v. Nat'l Foreign Trade Council, 120 S. Ct. 2288 (2000) (holding that state law was preempted specifically by federal Burma statute). The outcome of the debate on the scope or extent of "dormant" foreign affairs preemption ultimately will not be that significant, though, in assessing the legitimacy of the PRA's express devolution of the federal immigration power. In the Zschernig debate, even proponents of a new "foreign affairs federalism" have not argued that a state's participation in foreign policymaking reflects a constitutional devolution of the foreign affairs powers, or that state action affecting foreign policy must now be treated with the same judicial deference as federal action. Rather, they advance the much more limited claim that courts should hesitate to hold preempted all ordinary exercises of state power that happen to touch on foreign affairs, where no express conflict exists.
298. U.S. Const. art. I, § 8, cl. 3; see also The Head Money Cases, 112 U.S. 580, 600 (1884) ("Congress ha[s] the power to pass a law regulating immigration as a part of the commerce of this country with foreign nations . . . ."); Chy Lung v. Freeman, 92 U.S. 275, 280 (1876) ("The passage of laws which concern the admission of citizens and subjects of foreign nations to our shore belongs to Congress . . . . [I]t has the power to regulate commerce with foreign nations . . . ."); Henderson v. Mayor of New York, 92 U.S. 259, 270 (1876); The Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283, 400 (1849) (attributing to Congress power to regulate foreign commerce); Bilder, supra note 51, at 745-47 (noting that, until 1889, Court based immigration jurisprudence on Commerce Clause).
299. The U.S. Constitution provides that "[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's [sic] inspection Laws." U.S. Const. art. I, § 10, cl. 2. Like the Compact Clause, id. art. I, § 10, cl. 3, this provision is both a prohibition on the States and a conditional grant of authority to act, see generally Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976). I am not aware that the suggestion has been made that the immigration power arises from the Import-Export Clause. Like the Compact Clause, this narrow grant of power to the states to participate in the regulation of foreign commerce is not significant in evaluating whether the broad federal power to regulate foreign commerce may be devolved to the states. See supra notes 250-64 and accompanying text. If anything, the specific enumeration of a narrow area for federally authorized state regulation implies that the states possess no other direct power in foreign commerce.
300. See U.S. Const. art. I, § 8, cl. 3 (stating that Congress shall have power "[t]o regulate Commerce with foreign Nations, and among the several States").
301. See Buttfield v. Stranahan, 192 U.S. 470, 492 (1904) (noting that regardless of debate regarding scope of Congress's interstate commerce power, "it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries"). This view was echoed in Bowman v. Chi. & Northwestern Ry. Co., 125 U.S. 465 (1888): Laws which concern the exterior relations of the United States with other nations and governments are general in their nature, and should proceed exclusively from the legislative authority of the nation. The organization of our state and federal system of government is such that the people of the several states can have no relations with foreign powers in respect to commerce or any other subject, except through the government of the United States . . . . The same necessity perhaps does not exist equally in reference to commerce among the states. Id. at 482; see also Henderson, 92 U.S. at 273.
302. 441 U.S. 434 (1979).
303. The Court held that a state tax does not violate the Interstate Commerce Clause if it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State." Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).
304. Japan Line, 441 U.S. at 445.
305. Id. at 448.
306. Id. at 445-46.
307. Id. at 451. The reference to the federal government's need to "speak with one voice" is to Michelin Tire Corp. v. Wages, 423 U.S. 276, 285 (1976), a case arising under the Export-Import Clause.
308. Japan Line, 441 U.S. at 452. The Court also offered a less absolute formulation of the "one voice" requirement, defining the inquiry as whether a state regulation would "impair federal uniformity in an area where federal uniformity is essential." Id. at 448.
309. Id.
310. In Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983), the Court rejected a Foreign Commerce Clause challenge to the use of California's "worldwide combined reporting" method to determine the franchise tax owed by a domestic corporation with foreign subsidiaries. The Court's analysis of the "one voice" criteria hinged on its conclusion that there were no "specific indications of congressional intent" to preempt California's scheme. Id. at 196-97. In Wardair Canada, Inc. v. Florida Department of Revenue, 477 U.S. 1 (1986), the Court rejected a "one voice" challenge to a Florida tax on the sale of fuel to common carriers, including airlines. Even though the United States as amicus curiae contended that Florida's regime undermined the nation's ability to speak with one voice, the Court disagreed, perceiving no clear demonstration of a federal policy against state sales taxation of airplane fuel. Id. at 9. Finally, returning to California's franchise tax in Barclays Bank PLC v. Franchise Tax Board, 512 U.S. 298 (1994), the Court again upheld the state scheme, this time as applied to a foreign corporation and a domestic corporation with a foreign parent. Again, because the Court could "discern no 'specific indications of congressional intent' to bar the state action," the Court concluded that the "one voice" requirement was not violated. Id. at 324.
311. Henkin, supra note 33, at 162; see also Tribe, supra note 257, at 1151-52 ("The Supreme Court, in the face of congressional silence, has allowed only such state action [regulating foreign commerce] as it has deemed consistent with the nationality policies perceived to underlie the congressional power delegated in the Commerce Clause itself."). Some scholars recently have criticized the scope of "dormant" foreign commerce pre-emption. See Goldsmith, supra note 33, at 1681-90 (condemning doctrine of dormant foreign commerce preemption as unnecessary and harmful); Spiro, supra note 33, at 1266 (applauding Barclays Bank decision as "bod[ing] ill for 'one-voice' jurisprudence"); Peter Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 Va. J. Int'l L. 121, 164 (1994) (criticizing Barclays Bank decision for stressing "the institutional preeminence of Congress over foreign commerce" rather than taking "full account of the possibility of foreign government retaliation").
312. See Barclays Bank PLC, 512 U.S. at 324; Wardair Can., Inc., 477 U.S. at 12; Container Corp. of Am., 463 U.S. at 197.
313. Actually, they might, even if the PRA satisfies the "one voice" requirement by manifesting a congressional determination that this is not "an area [of commercial activity] where federal uniformity is essential." Japan Line, 441 U.S. at 448. This is because state anti-immigrant discrimination may violate a different requirement, the nondiscrimination prong of Complete Auto Transit, by disfavoring foreign immigration (or commerce).
314. Buttfield v. Stranahan, 192 U.S. 470, 493 (1904); see also Bowman v. Chi. & Northwest Ry. Co., 125 U.S. 465, 482 (1888) ("The organization of our state and Federal system of government is such that the people of the several States can have no relations with foreign powers in respect to commerce . . . .").
315. See supra notes 237-66 and accompanying text.
316. See supra note 280.
317. United States v. Morrison, 529 U.S. 598, 676 (2000).
318. See supra notes 260-63 and accompanying text.
319. Chae Chan Ping v. United States, 130 U.S. 581 (1889). The Court stated: That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power . . . . The power of exclusion of foreigners [is] an incident of sovereignty belonging to the government of the United States, as a part of those sovereign powers delegated by the Constitution . . . . Id. at 603-04, 609. Sarah Cleveland has pointed out that the inherent sovereignty theory's antecedents also include decisions involving regulation of Native American affairs. Sarah Cleveland, The Plenary Power Background of Curtiss-Wright, 70 U. Colo. L. Rev. 1127, 1135-42 (1999).
320. See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 707-08 (1893) (citing numerous international law commentators for proposition that right to "expel or deport foreigners" is "essential attribute[ ] of sovereignty" (citations omitted)); Nishimura Ekiu v. United States, 142 U.S. 651, 659 (1892) ("It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions . . . . In the United States this power is vested in the national government . . . .").
321. The notion that the power to regulate immigration is an incident of sovereignty predates this nation. See, e.g., Cleveland, supra note 288, at 1143 ("Citing Vattel's works on international law, the Federalists argued [in 1798] that because the law of nations recognized the absolute right of a nation to expel aliens, the Alien Act . . . violated no constitutional provisions.").
322. Early criticism by some dissenting Justices, who insisted that all federal authority must derive from the constitutional text, soon faded. For example, in Fong Yue Ting, Justice Field stated in dissent: The government of the United States is one of limited and delegated powers . . . . When, therefore, power is exercised by Congress, authority for it must be found in express terms in the Constitution, or in the means necessary or proper for the execution of the power expressed. If it cannot be thus found, it does not exist. 149 U.S. at 757-58 (Field, J., dissenting); see also id. at 737 (Brewer, J., dissenting) ("It is said that the power here asserted is inherent in sovereignty. This doctrine . . . is one both indefinite and dangerous."). Yet the modern Court's tendency to emphasize constitutional text as the source of the immigration power may reflect an enduring unease with a full-throated doctrine of extraconstitutional authority. See, e.g., Toll v. Moreno, 458 U.S. 1, 11 (1982) (declaring that federal immigration power is "constitutionally derived" and that "[t]he Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States" (emphasis added) (citing Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 418-19 (1948))); De Canas v. Bica, 424 U.S. 351, 358 (1976) ("The Federal Government has broad constitutional powers in determining what aliens shall be admitted to the United States, the period they may remain, regulation of their conduct before naturalization, and the terms and conditions of their naturalization." (emphasis added) (citing Hines v. Davidowitz, 312 U.S. 52, 66 (1941))).
323. Henkin, supra note 33, at 15-16 & 328 n.3 (gathering sources).
324. 299 U.S. 304 (1936).
325. Id. at 315-16.
326. Id. at 316.
327. Id. at 316-17.
328. Id. at 318.
329. Id. (citing Fong Yue Ting v. United States, 149 U.S. 698 (1893)).
330. Id. (citing B. Altman & Co. v. United States, 224 U.S. 583 (1912)).
331. See Henkin, supra note 33, at 329 nn.9-10 (listing commentary critical of Sutherland's theory); id. at 20 ("Students of the Constitution may have to accept Sutherland's theory, with its difficulties, or leave constitutional deficiencies unrepaired."). Cleveland has demonstrated that Justice Sutherland's theory of an extraconstitutional, plenary foreign affairs power had "roots deep into the early nineteenth century, particularly in judicial decisions relating to Indians, aliens, and territories." Cleveland, supra note 288, at 1135.
332. See Emmerich Vattel, The Law of Nations 169-70 (Joseph Chitty ed., Philadelphia, T. & J.W. Johnson 1858) ("The sovereign may forbid the entrance of his territory either to foreigners in general or in particular cases, or to certain persons or for certain particular purposes, according as he may think it advantageous to the state.").
333. Louis Henkin explains that international law restricts the exercise of all foreign affairs powers, including "inherent" powers recognized under Sutherland's theory. Henkin, supra note 33, at 20. Others specifically have argued that international law limits the sovereign immigration powers of the federal government in some respects, such as in the treatment of refugees and asylum seekers. See, e.g., James A.R. Nafziger, The General Admission of Aliens Under International Law, 77 Am. J. Int'l L. 804 (1983);
334. Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 Wisc. L. Rev. 965. I am unaware, however, of any principle of international law specifically limiting the devolution of sovereign powers.
335. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 316 (1936).
336. Id.
337. Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889).
338. Recall the unhappy experiment in state control of naturalization rules
339. As noted previously, membership theorists have criticized this broad interpretation of the immigration power, but the proposed distinction between "immigration" and "alienage" law may not be workable in application. See supra notes 158-74 and accompanying text. Moreover, Mathews v. Diaz and its progeny represent a failure to embrace this distinction. My task in this Article is to ask whether, even assuming the continuing validity of Mathews, devolution of the immigration power is violative of the Constitution.
340. Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420 (1948) ("The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide 'in any state' on an equality of privileges with all citizens under nondiscriminatory laws."); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886) ("The Fourteenth Amendment to the Constitution is not confined to the protection of citizens . . . . [Its] provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality . . . .").
341. See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (holding that INS does not violate First Amendment when it engages in selective enforcement of immigration laws based on disfavored speech or associational activities of noncitizens); Fiallo v. Bell, 430 U.S. 787 (1977) (upholding sex discrimination in immigration statute).
342. See cases cited supra note 12.
343. Compare Sugarman v. Dougall, 413 U.S. 634 (1973) (invalidating citizenship requirement for state civil service), with Mow Sun Wong v. Campbell, 626 F.2d 739 (9th Cir. 1980) (upholding citizenship requirement for federal civil service).
344. "Might," because 42 U.S.C. § 1981 (1994), which prohibits alienage discrimination in contracting, should nevertheless limit public and private employment discrimination on the basis of citizenship. See Takahashi, 334 U.S. at 419-20.
345. Nyquist v. Mauclet, 432 U.S. 1 (1977) (invalidating state restriction on student aid to legal permanent residents). The Supreme Court also struck down a restriction on immigrant eligibility for in-state tuition rates, although in that instance the Court's rationale rested on preemption grounds. Toll v. Moreno, 458 U.S. 1, 1 (1982).
346. Plyler v. Doe, 457 U.S. 202 (1982) (invalidating denial of free public primary and secondary education to undocumented children).
347. Devolution's threat to the civil liberties of immigrants would not necessarily be limited to equality norms; noncitizens' freedom of speech, for example, might be at risk. Congress has debated but not approved restrictions on campaign contributions by permanent residents. See, e.g., Note, Campaigns, Contributions and Citizenship: The First Amendment Right of Resident Aliens to Finance Federal Elections, 38 B.C. L. Rev. 771 (1997);
348. Note, "Foreign" Campaign Contributions and the First Amendment, 110 Harv. L. Rev. 1886 (1997). Devolution might permit states to enact their own immigrant-specific limits.
349. See supra Part I.A.2.
350. See Borjas, supra note 105, at 118 ("[T]he main immigrant-receiving state will soon be leading the 'race to the bottom,' as they attempt to minimize the fiscal burden imposed by the purposive clustering of immigrants in those states that provide the highest benefits."); Fix & Tumlin, supra note 7, at 4 ("Devolution of immigrant policy - like other areas of social welfare policy - also invokes the specter of a race to the bottom.").
351. See Neuman, supra note 79, at 1436 ("The geographical distribution of immigrants from various countries has often led to localized anti-alien movements . . . .") (citing historical examples from Thomas J. Curran, Xenophobia and Immigration, 1820-1930 (1975)).
352. See generally Higham, supra note 26, at 165-75; Nativism, Discrimination, and Images of Immigrants (George E. Pozzetta ed., 1991);
353. Joe R. Feagin, Old Poison in New Bottles: The Deep Roots of Modern Nativism, in Immigrants Out! The New Nativism and the Anti-Immigrant Impulse in the United States 13, 19-28 (Juan F. Perea ed., 1997).
354. Neuman, supra note 79, at 1436-37. It bears noting as well that devolution of the immigration power might lead to the undermining of state-level constitutional protections even for citizens, in the name of a broader immigration policy. See supra note 177.
355. See supra notes 237-39 and accompanying text; see also Neuman, supra note 79, at 1439 ("Congress's abdication of the eligibility issue to the states would demonstrate that these considerations of foreign policy and national sovereignty do not require ineligibility for state benefits.").
356. Spiro, supra note 81, at 1637. Of course, devolution of the immigration power also is consistent with an undifferentiated preference for "states rights" and state exercise of governmental power of all sorts. See Fix & Tumlin, supra note 7, at 3 ("The case for . . . devolution of immigrant policy to the states mirrors arguments for . . . devolution generally. That is, proponents of devolution argue that lodging immigrant policy with state and local governments allows them to target benefits and services more efficiently to the needs of local populations."). The remainder of this Section will address Peter Spiro's argument as a more refined version of the general policy preference for local control.
357. Spiro, supra note 81, at 1630; see also id. at 1627 ("[S]tate-level authority will allow those states harboring intense anti-alien sentiment to act on those sentiments at the state level . . . [thereby ensuring that] one state's preferences, frustrated at home, are not visited on the rest of us by way of Washington.").
358. The public-choice analysis reasons that congressional representatives of a state with an "intense preference" for anti-immigrant measures may overcome the "more or less neutral posture" of representation from other states, "by virtue of political logrolling." Id. at 1634-35 & 1634 n.29.
359. In an essay that does not purport to undertake a major historical analysis of federal anti-immigrant legislation, Spiro contends that two significant enactments of federal anti-immigrant legislation, one in the late nineteenth century and the other in 1996, followed judicial invalidation of local anti-immigrant measures. Id. at 1630-32.
360. Act of May 6, 1882, ch. 126, 22 Stat. 58 (suspending immigration from China for ten years).
361. Chy Lung v. Freeman, 92 U.S. 275 (1875) (striking down California law requiring ships bringing "lewd and debauched women" to post bonds for them); Spiro, supra note 81, at 1631-32 (summarizing historical materials). The notion of "steam valve federalism" also may explain the enactment of a second restrictionist measure in 1882, the passage of which was advocated by New York following invalidation of its immigration statute. Act of Aug. 3, 1882, ch. 376, 22 Stat. 214 (excluding paupers, convicts, and "lunatics"); Henderson v. Wickham, 92 U.S. 259 (1875) (invalidating similar New York law requiring bonds for all arriving immigrants); see also Salyer, supra note 48, at 5-6 (recounting that New York advocates, "finally accepting the Supreme Court's rulings that only the federal government could legislate in the area, began to lobby Congress to enact head taxes and to exclude criminals and paupers . . . . New York succeeded in getting congressional action." (footnote omitted)).
362. In addition to the PRA, Congress passed AEDPA, Pub. L. No. 104-132, 110 Stat. 1214 (1996), on the first anniversary of the bombing of a federal building in Oklahoma City, principally to enact revisions to the federal habeas corpus statute long sought by conservative proponents of capital punishment. But AEDPA also made important changes to the immigration laws regarding permanent residents with criminal convictions. Five months later, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified in scattered sections of 8 U.S.C.), which also focused primarily on legal immigrants with criminal convictions and thereby implemented an important aspect of the House Republicans' 1994 "Contract with America." See Contract with America: The Bold Plan by Rep. Newt Gingrich, Rep. Dick Armey, and the House Republicans to Change the Nation 38, 54-58 (Ed Gillespie & Bob Schellhas eds., 1994) [hereinafter Contract with America] (stating that Republicans would "address[ ] one of the most pressing problems in our country today" by "streamlin[ing] the current [convicted] alien deportation system"). As to the PRA, Spiro is undoubtedly correct that judicial injunctions of California's Proposition 187, reprinted in League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755 app. A at 787-91 (CD. Cal. 1995), which had attempted to deny most benefits to noncitizens in the state, spurred some California legislators to press for federal welfare reform. But the PRA was itself the product of multiple forces, including the House Republicans' Contract with America, see Contract with America, supra, at 73, 76 (calling for denial of AFDC, SSI, Food Stamps, and other benefits to noncitizens, subject to narrow exceptions); the intention of the Republican presidential nominee, Senate Majority Leader Bob Dole, to pass welfare legislation that President Bill Clinton would fear to veto, see Adam Clymer, Republicans Shift Strategy in Bid to Avoid Welfare Bill Veto, N.Y. Times, July 12, 1996, at A18; and the desire of the President to remove an issue from the campaign while making good on his own 1992 campaign commitment to "ending welfare as we know it," see Bill Clinton & Al Gore, Putting People First: How We Can All Change America 164 (1992). That the House, Senate, and President had compelling reasons to enact major welfare cuts in the summer of 1996 had little to do with California's frustration at the judicial determination that Proposition 187 was preempted by federal law, and indeed the legislative decision to focus those cuts on immigrants hardly received unanimous support from the California legislative delegation. See, e.g., 142 Cong. Rec. S8501 (daily ed. July 23, 1996) (showing that both senators from California opposed anti-immigrant provisions of PRA); 142 Cong. Rec. H7796 (daily ed. July 18, 1996) (same, as to leading representatives from California).
363. In addition to the two episodes considered by Spiro, Congress enacted significant restrictionist legislation in 1891, 1917, 1921, 1924, 1952, and 1986. Immigration Reform and Control Act of Nov. 6, 1986, Pub. L. No. 99-603, 100 Stat. 3359; Act of June 27, 1952, ch. 477, 66 Stat. 163; Immigration Act of 1924, ch. 190, 43 Stat. 153; Quota Act of 1921, ch. 8, 42 Stat. 5; Immigration Act of 1917, ch. 29, 39 Stat. 874; Act of March 3, 1891, ch. 551, 26 Stat. 1084. Yet these enactments do not fit the model of "steam valve federalism." See Salyer, supra note 48, at 23-32 (attributing 1891 Act to scandal involving mismanagement of New York immigration station by state officials and to frustration at federal courts overwhelmed with habeas corpus petitions in California); id. at 122-35 (attributing 1921 and 1924 Acts to rise of nativism, economic difficulties after end of World War I boom, growth of eugenics movement, fear of war with Japan, lingering World War I nationalism, and Red Scare of 1919-20); U.S. Select Comm'n on Immigration & Refugee Policy, Staff Report on U.S. Immigration Policy and the National Interest 182-84 (1981) (linking passage of 1891 Act to rise of nativism, itself grounded in closing of U.S. frontier, increasing urbanization and industrialization, arrival of immigrants from southern and eastern Europe, and Catholic and Jewish religion of many new immigrants); id. at 189 (explaining 1917 Act as passed "in large measure because World War I brought nervousness about the loyalty and assimilability of the foreign born to a fever pitch"); id. at 203-04 (stating that 1952 Act resulted from virulent anticommunism that "often took the form of opposition to anything foreign").
364. For example, in the welfare context, it was in 1971 that Graham v. Richardson, 403 U.S. 365 (1971), struck down state anti-immigrant provisions (those in Pennsylvania and Arizona), but it was not until 1996 and the PRA that federal legislation authorized or mandated similar classifications.
365. In 1977, the Supreme Court invalidated New York's denial of student financial aid to permanent residents, Nyquist v. Mauclet, 432 U.S. 1 (1977), and in 1982 it held further that Texas public schools could not exclude undocumented children, Plyler v. Doe, 457 U.S. 202 (1982), but neither state rushed to Congress for a fix. It was not until 1996 that Congress seriously debated a federal provision to deny public education to undocumented children. See Spiro, supra note 81, at 1633 n.27.
366. The Supreme Court began invalidating state restrictions on the commercial or employment activities of permanent residents as early as 1886, see Yick Wo v. Hopkins, 118 U.S. 356 (1886) (invalidating state alienage-based restrictions on license to operate laundry); see also Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948) (invalidating state law preventing noncitizens of Japanese descent from holding commercial fishing licenses); Truax v. Raich, 239 U.S. 33 (1915) (invalidating state law placing cap on employment of noncitizens), and then again in a wave of modern cases, see cases cited supra note 12. None of these decisions appears to have prompted a state effort to obtain national legislation mandating or authorizing the failed state licensing and employment rules.
367. See Higham, supra note 26, at 46, 72-73, 161-62, 260, 268 (mentioning states' anti-immigrant legislation); Neuman, supra note 79, at 1436 (noting states' history of xenophobia-inspired legislation).
368. See infra notes 337-43 and accompanying text.
369. See infra notes 344-51 and accompanying text.
370. William Cohen, Congressional Power to Validate Unconstitutional State Laws: A Forgotten Solution to an Old Enigma, 35 Stan. L. Rev. 387 (1983).
371. Id. at 419-22.
372. See Neuman, supra note 46, at 1833-34.
373. Neuman's research reveals that state legislation long restricted the movement across state boundaries of slaves, free blacks, and black seamen; indigent and disabled persons; persons with criminal convictions; and persons with contagious diseases. Id. at 1841-80.
374. But see id. at 1885-96 (suggesting that early state laws regulating immigration may have been constitutional).
375. See id. at 1897 ("When slavery ceased to divide the nation, national immigration regulation became possible.").
376. Compare The Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 283 (1849) (invalidating state head taxes on passengers as beyond police power and infringing on federal commerce authority), with Mayor of New York v. Miln, 36 U.S. (11 Pet.) 102 (1837) (upholding state rule requiring provision of ship manifests as valid exercise of police power).
377. See, e.g., Miln, 36 U.S. (11 Pet.) at 142-43 (upholding ship manifest rule as valid exercise of state police power without granting special deference to rule as immigration regulation); id. at 148 (opinion of Thompson, J.) (stating: Can anything fall more directly within the police power and internal regulation of a state, than that which concerns the care and management of paupers or convicts, or any other class or description of persons that may be thrown into the country, and likely to endanger its safety, or become chargeable for their maintenance?).
378. Moreover, it is not surprising that to the extent that exercises of state police power discriminated between citizens and immigrants, that discrimination was not challenged in the courts. For one thing, until ratification of the Fourteenth Amendment in 1868, federal due process norms did not apply to the states, let alone did any embedded equal protection norms. And even as to equal protection clauses in state constitutions, which might have provided the basis to challenge state anti-immigrant measures, perhaps all that can be said is that contemporary understandings of those clauses were unknown in the first part of the nineteenth century.
379. Actually, one other example of disparate standards of equal protection review exists, although it seems to be little more than an historical anomaly. For six years between the Supreme Court's decisions in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (stating that state and local affirmative action programs are subject to strict scrutiny), and Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (same, as to federal affirmative action programs), there technically existed different standards of review for state and federal affirmative action programs. See Neuman, supra note 79, at 1432-34; see also Carrasco, supra note 146, at 604-05 (noting, in article written between Croson and Adarand, different standards of review for state and federal affirmative action programs).
380. Morton v. Mancari, 417 U.S. 535, 555 (1974) (upholding employment preference for Native Americans at Bureau of Indian Affairs as rationally related to federal trust and treaty responsibilities); Felix S. Cohen's Handbook of Federal Indian Law 654-58 (1982) [hereinafter Cohen's Handbook].
381. Washington v. Yakima Indian Nation, 439 U.S. 463, 500-01 (1979) ("'[T]he unique legal status of Indian tribes under federal law' permits the Federal Government to enact legislation singling out tribal Indians, legislation that might otherwise be constitutionally offensive. States do not enjoy this same unique relationship with Indians." (quoting Morton, 417 U.S. at 551-52)); Cohen, supra note 335, at 658-59. But see Cohen, supra note 335, at 659 (stating: [S]ome of the Supreme Court equal protection decisions seem to be based more on the unique status of the tribes themselves . . . . If Indians are a legitimate classification for protective federal laws, their status is arguably the same for state laws of that character. Such state laws have long been assumed valid. (footnotes omitted)).
382. 439 U.S. 463 (1979).
383. Id. at 501.
384. Id. at 500-01. The two intermediate state court decisions upholding post-PRA alienage classifications have relied, erroneously, see infra notes 352-70 and accompanying text, on this very passage from Yakima Indian Nation, see Aliessa v. Novello, 712 N.Y.S.2d 96, 98-99 (App. Div. 2000); Alvarino v. Wing, 690 N.Y.S.2d 262, 263 (App. Div. 1999).
385. E.g., Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1218 (5th Cir. 1991) (subjecting exemption for Native American Church from state prohibition on peyote possession to rationality review on grounds that "Yakima teaches that states may exercise the federal trust power pursuant to express Congressional authorization"); see also Livingston v. Ewing, 601 F.2d 1110, 1115-16 (10th Cir. 1979) (finding that state's compelling "educational, cultural and artistic interests" justify ordinance allowing only Native American vendors on museum grounds); St. Paul Intertribal Hous. Bd. v. Reynolds, 564 F. Supp. 1408, 1412 (D. Minn. 1983) (upholding state Native American housing program and noting that "state action for the benefit of Indians can also fall under the trust doctrine and therefore be protected from challenge under the equal protection clause or civil rights statutes" (citations omitted)); Krueth v. Indep. Sch. Dist., 496 N.W.2d 829, 836 (Minn. Ct. App. 1993) (upholding state layoff protection for Native American teachers because "[t]he trust doctrine also applies to state action" (citing St. Paul Intertribal Hous. Bd., 564 F. Supp. at 1412)).
386. See Peyote Way, 922 F.2d at 1218 (upholding exemption for Native American Church for state prohibition on peyote possession); Livingston, 601 F.2d at 1116 (upholding exemption for Native Americans from ordinance barring sale of goods in town plaza); St. Paul Intertribal Hous. Bd., 564 F. Supp. at 1412 (upholding state program for Native American housing); Krueth, 496 N.W.2d at 836 (upholding state layoff protection for Native American teachers).
387. E.g., Morton v. Mancari, 417 U.S. 535 (1974) (upholding employment preference for Native Americans in federal Bureau of Indian Affairs). Although the Court declared the principle of rationality review upon consideration of a remedial classification, it also has applied the standard to uphold jurisdictional statutes over the objection of Native Americans who resisted them. See Yakima Indian Nation, 439 U.S. 463 (1979) (upholding state's assertion of partial jurisdiction over reservation); United States v. Antelope, 430 U.S. 641 (1977) (upholding federal criminal jurisdiction over Indians); see also Duro v. Reina, 495 U.S. 676, 692 (1990) (remarking upon "the Federal Government's broad authority to legislate with respect to enrolled Indians as a class, whether to impose burdens or benefits").
388. See cases cited supra note 351.
389. The constitutional distinction between benign and invidious race classifications has been rejected by the Supreme Court in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (stating that federal affirmative action programs are subject to strict scrutiny); City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (same, as to state and local affirmative action programs). Neither of those cases should call into question the continuing validity of Morton v. Mancari. This is because Mancari phrased the constitutional standard for review of tribal classifications as rationally related to the special trust relationship. It is hard to understand how singling out Native Americans for disfavored treatment would be in furtherance of the trust relationship. Cf. Adarand, 515 U.S. at 244-45 & 244 n.3 (Stevens, J., dissenting) ("We should reject a concept of 'consistency' that would view the special preferences that the National Government has provided to Native Americans since 1834 as comparable to the official discrimination against African-Americans that was prevalent for much of our history." (citing Mancari, 417 U.S. at 541)). Nor are the Supreme Court cases upholding assertion of general civil or criminal jurisdiction over "Indian country" to the contrary, see Yakima Indian Nation, 439 U.S. at 463; Antelope, 430 U.S. at 641, as those decisions involved the extension of rules of general applicability (albeit over Indians' objections), rather than the enactment of laws that singled out Native Americans for disfavored treatment. But cf. Stuart Minor Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537, 597 n.246 (1996) (noting that trust relationship may allow legislation that actually does not benefit Indians).
390. U.S. Const. art. I, § 8, cl. 3 (granting Congress power to "regulate Commerce . . .with the Indian Tribes").
391. Id. art. II, § 2, cl. 2 (authorizing President to make treaties, by and with advice and consent of Senate).
392. See Antelope, 430 U.S. at 645 & n.6 (justifying preferential treatment of Native Americans on basis of "a history of treaties and the assumption of a 'guardian-ward' status"); Mancari, 417 U.S. at 551-53 (discussing unique status of Native American tribes under federal law); McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973) ("The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making."); Cohen's Handbook, supra note 345, at 211 ("Court opinions most often refer to the Indian Commerce Clause, the Treaty Clause, and the Supremacy Clause in discussing the source of federal power over Indian affairs."); see also id. at 209 (noting that Property Clause, U.S. Const. art. IV, § 3, cl. 2, granting Congress power to dispose of and regulate "the Territory or other Property belonging to the United States," also has been identified as source of federal power to regulate Indian affairs). In addition, in the nineteenth century, the Court occasionally described the power to regulate Native American affairs as inherent or extraconstitutional, in a manner not unlike some explanations for the source of the federal immigration and foreign affairs powers. See, e.g., United States v. Kagama, 118 U.S. 375, 384-85 (1886); see also Cleveland, supra note 288, at 1137-42; Philip Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 60-66 (1996). As one commentator has observed, however: More recently, the Court has moved away from Kagama's suggestion of extraconstitutional powers and has instead grounded Congress's power over Indians - and the concomitant special relationship between the federal government and Indian tribes - in the Indian Commerce Clause and, at least to some extent, the Treaty Clause of Article II. Benjamin, supra note 354, at 543.
393. See supra note 247 and accompanying text.
394. See supra notes 267-80 and accompanying text.
395. See Seminole Tribe v. Florida, 517 U.S. 44, 62 (1996).
396. In a brief passage, the Supreme Court would appear to have rejected this proposition. See Washington v. Yakima Indian Nation, 439 U.S. 463, 500-01 (1979) ("[T]he unique legal status of Indian tribes under federal law permits the Federal Government to enact legislation singling out tribal Indians . . . . States do not enjoy this same unique relationship with Indians . . . ." (internal quotation marks omitted)).
397. See supra notes 210-35 and accompanying text.
398. See supra notes 236-66 and accompanying text.
399. See supra notes 267-86 and accompanying text.
400. 417 U.S. 535 (1974).
401. Id. at 553 n.24; see also id. at 553 ("[T]his preference does not constitute 'racial discrimination.' Indeed, it is not even a 'racial' preference."); id. at 553 n.24 ("The preference is not directed towards a 'racial' group consisting of 'Indians'; instead, it applies only to members of 'federally recognized' tribes. This operates to exclude many individuals who are racially to be classified as 'Indians.'").
402. Id. at 554.
403. Id. at 555; see also Benjamin, supra note 354, at 545-48 (reviewing rationale for treating tribal classifications as political, not racial).
404. Graham v. Richardson, 403 U.S. 365, 372 (1971).
405. Id.; see also Toll v. Moreno, 458 U.S. 1, 20-21 (1982) (Blackmun, J., concurring) ("[D]isparate treatment accorded a class of similarly circumstanced persons who historically have been disabled by the prejudice of the majority . . . led the Court to conclude [in Graham] that alienage classifications in themselves supply a reason to infer antipathy . . . and therefore demand close judicial scrutiny." (internal quotation marks omitted)).
406. Cohen, supra note 335, at 406.
407. Id. at 419-22.
408. See id. at 420.
409. See Bernal v. Fainter, 467 U.S. 216, 219-20 (1984) (invalidating state law barring permanent residents from serving as notaries public, as failing strict scrutiny).
410. See Koh, supra note 44, at 103 (criticizing argument that preemption analysis of state alienage classifications is superior to equal protection assessment).
411. See supra notes 325-32 and accompanying text.
412. U.S. Const. art. I, § 8, cl. 4. Under Mathews v. Diaz, 426 U.S. 67 (1976), a federal alienage classification survives equal protection scrutiny only because it was enacted as a permissible exercise of the federal immigration power. See id. at 79-80.
413. Cohen, supra note 335, at 404. Cohen suggests that when a uniformity requirement limits only the federal government and not the states, the requirement should not prevent federal authorization of disuniform state measures. Id. at 405-06. But if the state measures are impermissible in their own right, regardless of their uniformity (as with state alienage classifications under Graham), and the federal government must act uniformly or not at all, then Cohen's resolution yields bizarre results: In effect, he is arguing that states should be able to engage in disuniform practices that would be impermissible if done directly by Congress.
414. See id. at 419-22.
415. Id. at 409 n.102. In Cohen's defense and as discussed supra Part III.B.1, the Naturalization Clause is but one source of the federal immigration power, and the other sources are not necessarily limited by uniformity requirements. Moreover, as the Court explained in Knowlton v. Moore, 178 U.S. 41 (1900), geographic uniformity may well differ from "intrinsic" uniformity, id. at 89, and it is uncertain that only the former would be implicated by divergent state welfare rules.
416. These include Alabama, which has denied TANF benefits to permanent residents, see supra note 9; Wyoming, which has denied Medicaid benefits, see id.; Pennsylvania, which enacted a bar on cash and medical benefits for permanent residents but has not enforced its bar because of an Opinion Letter issued by its Attorney General, Official Opinion No. 96-1, Op. Att'y Gen. of Pa. (Dec. 9,1996), 1996 Pa. AG LEXIS 2; Louisiana, which promulgated but then rescinded an emergency rule denying Medicaid to permanent residents, see supra note 9; and states such as New York, which have denied to permanent residents state medical or cash assistance provided to citizens, see supra note 122.
417. See supra notes 9, 119-24.
418. See supra note 9.
419. Similarly, while the current alienage jurisprudence does not extend clearly to legal immigrants other than permanent residents, the rationale of Graham and its progeny would seem to apply with equal force to other legally present noncitizens, who also work, pay taxes, and often form extensive and long-term ties to their communities in the United States.
420. Cf. Koh, supra note 44, at 103 (urging rejection of "cold, impersonal, and incomplete" preemption approach to state alienage classifications in favor of equal protection approach that can address "moral and personal concerns" of noncitizens); Neuman, supra note 79, at 1439 ("[P]reemption doctrine is not directly responsive to the problem . . . .").
421. See Saenz v. Roe, 526 U.S. 489, 498-505 (1999) (holding that California statute limiting benefits for new residents violated Privileges and Immunities Clause by deterring intrastate "migration" despite contrary argument that such deterrence merely was "incidental" and bore rational relation to state interest); Romer v. Evans, 517 U.S. 620, 626-36 (1996) (finding clear violation of Equal Protection Clause despite contrary argument that Colorado constitutional amendment merely "den[ied] homosexuals special rights"); Tribe, supra note 4, at 110 & n.3 (arguing that current Court repeatedly has protected individual rights by reasoning from "structural inference").
422. Graham v. Richardson, 403 U.S. 365, 366 (1971).