A handicapped, not "sleeping," giant: The devastating impact of the initiative process on Latina/o and immigrant communities

California Law Review

Volumn 96, Issue 5, 2008, Pages 1259-1297

  Johnson, Kevin R ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 56049104687     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (198)

1. See, e.g., Symposium, The Voice of the Crowd - The Colorado Initiative, 78 U. COLO. L. REV. 1337 (2007) (collecting articles analyzing Colorado's initiative process); Symposium on the Impact of Direct Democracy, 78 S. CAL. L. REV. 835 (2005) (analyzing many significant issues implicated by initiative lawmaking); Ethan J. Leib, Can Direct Democracy Be Made Deliberative?, 54 BUFF. L. REV. 903, 906-11 (2006) (summarizing the "pathologies of direct democracy"); Ben Hovland, Comment, Championed by Progressives and William U'Ren: Can Oregon Give the Ballot Initiative to the People Again?, 85 OR. L. REV. 275 (2006) (analyzing many possible reforms to the initiative process). For a recent-and most forceful-claim that initiatives are unconstitutional, see Erwin Chemerinsky, Challenging Direct Democracy, 2007 MICH. ST. L. REV. 293 (2007).
2. See generally PHILIP L. DUBOIS & FLOYD FEENEY, LAWMAKING BY INITIATIVE (1998) (comprehensively analyzing initiative lawmaking).
3. See, e.g., Elizabeth Garrett & Mathew D. McCubbins, The Dual Path Initiative Framework, 80 S. CAL. L. REV. 299 (2007); Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and "Disclosure Plus, " 50 UCLA L. REV. 1141 (2003); Glenn C. Smith, Solving the "Initiatory Construction" Puzzle (and Improving Direct Democracy) by Appropriate Refocusing on Sponsor Intent, 78 U. COLO. L. REV. 257 (2007).
4. See Elizabeth Garrett, Money, Agenda Setting, and Direct Democracy, 77 TEX. L. REV. 1845 (1999); Thomas Stratmann, The Effectiveness of Money in Ballot Measure Campaigns, 78 S. CAL. L. REV. 1041 (2005).
5. See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434 (1998). But see Lynn A. Baker, Preferences, Priorities, and Plebescites, 13 J. CONTEMP. LEGAL ISSUES 317 (2004) (questioning this critique).
6. See Note, Judicial Approaches to Direct Democracy, 118 HARV. L. REV. 2748 (2005).
7. See generally Jane S. Sehacter, The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy, 105 YALE L.J. 107 (1995) (analyzing difficult issues of interpretation raised by initiative lawmaking).
8. See infra text accompanying notes 81-89.
9. See infra text accompanying notes 81-89.
10. See THOMAS E. CRONIN, DIRECT DEMOCRACY 44 (1989) (analyzing the initial popularity of initiatives because "the two main political parties were largely, and sometimes entirely, under the influence of the railroads, trusts, and monopolies"); DUBOIS & FEENEY, supra note 2, at 2 ("[Populists and progressives] believed that legislators and political party machines had become far too dependent on special interests. Trusting the populace itself to make better judgments, they thought that the cure was more democracy."); id. at 12 ("The party machines [in California] were controlled largely by the Southern Pacific railroad. One of the principal aims of the initiative movement was to break out of this control.").
11. See infra Part II. This article focuses on the initiative process, not the general discrimination against Latina/os in the voting process. See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (finding violation of Latina/o voting rights in Texas redistricting plan and recognizing "the 'political, social, and economic legacy of past discrimination' for Latinos in Texas,... [which] may well 'hinder their ability to participate effectively in the political process'") (citations omitted); see also Roger Clegg & Linda Chavez, An Analysis of the Reauthorized Sections 5 and 203 of the Voting Rights Act of 1965: Bad Policy and Unconstitutional, 5 GEO. J.L. & PUB. POL'Y 561, 580-82 (2007) (criticizing Perry); Adam B. Cox & Thomas J. Miles, Judging the Voting Rights Act, 108 COLUM. L. REV. 1 (2008) (analyzing the role of race of judges in voting rights cases); Michael S. Kang, Race and Democratic Contestation, 117 YALE L.J. 734, 746-52 (2008) (analyzing Perry).
12. Richard B. Collins, How Democratic Are Initiatives?, 72 U. COLO. L. REV. 983, 994 (2001); see also Chemerinsky, supra note 1, at 294 ("Time and again, initiatives are used to disadvantage minorities: racial minorities, language minorities, sexual orientation minorities, political minorities.").
13. See infra Part II.
14. See infra Part II.
15. The state of Washington also saw an initiative mark the demise of race-conscious affirmative action in its public colleges and universities. See infra text accompanying note 108. Florida eliminated affirmative action not by initiative but through a more complicated series of events. The Florida Supreme Court struck from the ballot a proposed anti-affirmative action initiative. See Advisory Op. to Arty. Gen. re Amendment to Bar Gov't from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888 (Fla. 2000). Governor Jeb Bush followed the decision by issuing an executive order prohibiting race-conscious affirmative action. See Martin D. Carcieri, Due Process and the Florida Civil Rights Initiative, 74 TEMP. L. REV. 595, 596 & n.3 (2001).
16. See Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding University of Michigan law school's race conscious affirmative action program that required individualized review of each application); Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating undergraduate admissions scheme that relied excessively on race in allocating points for admission); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (finding unconstitutional racial quotas in UC Davis School of Medicine admissions scheme but holding that race could be one factor considered in admissions decision).
17. See infra Part II B.
18. See infra Part II. The simultaneous discussion of the limited political power of Latina/os and immigrants makes sense in light of the interrelationship between the two groups in modern U.S. social life. See Cristina M. Rodriguez, Latinos and Immigrants, 11 HARV. LATINO L. REV. 247 (2008); Kevin R. Johnson, Immigration and Latino Identity, 19 CHICANO-LATINO L. REV. 197 (1998).
19. See infra Part II.
20. See JOHN G. MATSUSAKA, FOR THE MANY OR THE FEW 113-27 (2004) (discussing concerns with "majority tyranny" in lawmaking by initiative).
21. See infra Part II.
22. See Kevin R. Johnson, Latinas/os and the Political Process: The Need for Critical Inquiry, 81 OR. L. REV. 917, 928-33 (2002).
23. See U.S. CENSUS BUREAU, THE AMERICAN COMMUNITY - HISPANIC: 2004, at 11 (2007) ("Nearly three-quarters of Hispanics were U.S. citizens, either through birth (about 61 percent) or naturalization (about 11 percent)."); see also Pew Hispanic Center, A Statistical Portrait of Hispanics at Mid-Decade (2006) (Table 2), available at http://pewhispanic.org/files/other/ middecade/Table-2.pdf [hereinafter Pew Hispanic Study] (compiling data showing that roughly 40% of Latina/os are foreign-born).
24. See U.S. Census Bureau, supra note 23, at 7 (Figure 3).
25. I recognize that some immigrants come to the United States from Africa. See, e.g., Lolita K. Buckner Inniss, Tricky Magic: Blacks as Immigrants and the Paradox of Foreignness, 49 DEPAUL L. REV. 85 (1999) (describing the black American experience as an immigrant experience); Hope Lewis, Global Intersections: Critical Race Feminist Human Rights and Inter/National Black Women, 50 ME. L. REV. 309 (1998) (analyzing the human rights problems facing Black women who migrate between the United States and Jamaica); Camille A. Nelson, Carriers of Globalization: Loss of Home and Self Within the African Diaspora, 55 FLA. L. REV. 539 (2003) (describing the problems facing Jamaican immigrants desiring to return to their homeland). Indeed, forced migrants from Africa constituted an early, large immigrant group to this fledgling nation. See Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 MO. L. REV. 743 (1996). However, in 2004, only about 8% of the Black population in the United States was foreign-born, see U.S. CENSUS BUREAU, THE AMERICAN COMMUNITY-BLACKS: 2004, at 2 (2007), compared to as many as 40% of all Hispanics. See supra text accompanying note and note 23. Issues similar to those affecting Latina/o political power arise with respect to Asian Americans, as well as other minority groups with significant numbers of noncitizens. See, e.g., Kathay Feng, Keith Aoki & Bryan Ikegami, Voting Matters: APIAs, Latinas/os and Post-2000 Redistricting in California, 81 OR. L. REV. 849 (2002); see also Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National Imagination, 85 CALIF. L. REV. 1395, 1438-46 (1997) (analyzing emergence of coalition of Latina/os and Asian Americans based on common interests that brought forth constructive political change in a Los Angeles suburb).
26. For a sampling of the literature on the harsh treatment of immigrants throughout U.S. history, including the present day, see JOHN HIGHAM, STRANGERS TO THE LAND (4th ed. 2002); BILL ONG HING, DEPORTING OUR SOULS (2006); BILL ONG HING, DEFINING AMERICA THROUGH IMMIGRATION POLICY (2004); KEVIN R. JOHNSON, THE "HUDDLED MASSES" MYTH (2004); LUCY E. SALYER, LAWS HARSH AS TIGERS (1995); RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE (rev. ed. 1998).
27. See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938) ("[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for... more searching judicial inquiry.") (citations omitted).
28. See JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); see, e.g., Loving v. Virginia, 388 U.S. 1, 9 (1967) (invalidating Virginia's anti-miscegenation law).
29. See Robert Tsai, Democracy's Handmaid, 86 B.U. L. REV. 1, 51 (2006) (discussing the role for the courts suggested by John Ely but suggesting that courts should go even further in carefully scrutinizing laws that disadvantage minorities).
30. See, e.g., McLaughlin v. Florida, 379 U.S. 184 (1964) (invalidating ban on interracial cohabitation by unmarried persons); Hernandez v. Texas, 347 U.S. 475 (1954) (ruling that Equal Protection rights of Mexican-Americans were violated by their exclusion from jury service); Brown v. Bd. of Educ., 347 U.S. 483 (1954) (striking down de jure racial segregation in publicschools).
31. See infra text accompanying notes 104-121.
32. See ELY, supra note 28, at 135-79.
33. Contrary to popular belief, it has not always been the case that noncitizens could not vote in the United States. The history of noncitizen voting rights in the United States is a well-kept national secret. Most Americans today have no idea that during the nineteenth century, at least twenty-two states and territories permitted noncitizens to vote, and that it was not until 1926 that the last state, Arkansas, limited its voter qualifications to include only citizens. Tara Kini, Comment, Sharing the Vote: Noncitizen Voting Rights in Local School Board Elections, 93 CALIF. U. REV. 271, 301 (2005) (footnote omitted); see Jamin B. Raskin, Legal Aliens, Local Citizens: The Historical, Constitutional and Theoretical Meanings of Alien Suffrage, 141 U. PA. L. REV. 1391, 1397-1417 (1993) (reviewing rise and fall of noncitizen voting in the United States). See generally RON HAYDUK, DEMOCRACY FOR ALL (2006) (arguing for the extension of the vote to noncitizen residents). A few local governmental entities in the United States allow noncitizens to vote in certain elections. See Raskin, supra, at 1463-67 (noting that some localities, including Takoma Park, Maryland, allow noncitizens to vote in local elections); see also Kini, supra (contending that noncitizens should be permitted to vote in local school board elections). Interestingly, Takoma Park in 1992 extended the vote in local elections to lawful immigrants after a lengthy process that began with a voter referendum on the issue. See Raskin, supra, at 1463-64. Some other countries permit noncitizens to vote in certain state and local elections. See, e.g., Eamon Quinn, Ireland Learns to Adapt to a Population Growth Spurt, N.Y. TIMES, Aug. 19, 2007, at A3 ("Ireland permits all residents, not just Irish citizens, to cast ballots in local elections. That has helped immigrants win seats in local councils. The mayor of the midlands town of Portlaoise, Rotimi Adebari, is from Nigeria.").
34. For that reason, the Supreme Court at various times has employed strict scrutiny to review state laws that discriminate against lawful permanent residents. See, e.g., Bernal v. Fainter, 467 U.S. 216 (1984) (holding that state citizenship requirement for notary publics was unconstitutional); Sugarman v. Dougall, 413 U.S. 634 (1973) (finding aliens to be a discrete and insular minority, applying strict scrutiny, and invalidating citizenship requirement for state civil service positions); Graham v. Richardson, 403 U.S. 365 (1971) (applying strict scrutiny to an alienage classification and striking down a bar of state welfare benefits to lawful residents).
35. ELY, supra note 28, at 161-62 (emphasis added) (endnote omitted). Despite Professor Ely's insightful observation, for a variety of reasons, including the so-called "plenary power" doctrine barring substantive review of the immigration laws, see infra text accompanying notes 133-136, courts reviewing federal laws affecting noncitizens often take an extremely deferential approach. See, e.g., Mathews v. Diaz, 426 U.S. 67, 79-82 (1976) (finding that Congress could limit the eligibility of lawful immigrants for a federal medical insurance program and emphasizing that "[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens. The exclusion of aliens and the reservation of the power to deport have no permissible counterpart in the Federal Government's power to regulate the conduct of its own citizenry. The fact that an Act of Congress treats aliens differently from citizens does not itself imply that such disparate treatment is 'invidious.'" (footnotes omitted)); see also infra text accompanying notes 133-136 (discussing plenary power doctrine). At times, however, the Supreme Court has applied strict scrutiny review to noncitizen classifications in state laws. See, e.g., Sugarman, 413 U.S. 634 (finding aliens to be a discrete and insular minority, applying strict scrutiny, and invalidating citizenship requirement for state civil service positions); Graham, 403 U.S. at 371-72 (applying strict scrutiny to a state welfare law discriminating against lawful immigrants).
36. See Kevin R. Johnson, The End of "Civil Rights" as Wf Know It?: Immigration and Civil Rights in the New Millennium, 49 UCLA L. REV. 1481, 1499-510 (2002).
37. See JEFFREY S. PASSEL, THE SIZE AND CHARACTERISTICS OF THE UNAUTHORIZED MIGRANT POPULATION IN THE U.S. 5 (Pew Hispanic Center, Mar. 7, 2006) (reviewing statistical data showing that approximately 56% of undocumented immigrants were from Mexico).
38. See U.S. Census Bureau, Minority Population Tops 100 Million, http://www.census.gov/Press-Release/www/releases/archives/ population/010048.htnil (last visited Mar. 16, 2008) (reporting that, as of July 1, 2006, Hispanics remained the largest minority group in the United States, with 44.3 million people comprising 14.8% of the total population).
39. See PASSEL, supra note 37, at 1, 4.
40. Pew Hispanic Study, supra note 23, at 1.
41. See supra text accompanying note 23.
42. U.S. CENSUS BUREAU, THE FOREIGN- BORN POPULATION IN THE UNITED STATES: 2003, at I (2004), available at http://www.census.gov/prod/2004pubs/p20-551. pdf.
43. See, e.g., Haya El Nasser & Paul Overberg, Nation's Minority Numbers Top 100M; Hispanics Account for Nearly Half of Growth, USA TODAY, May 17, 2007, at A1.
44. See Roberte Suro, Latino Power? It Will Take Time for the Population Boom to Translate, WASH. POST, June 26, 2005, at B1 (discussing the "sleeping giant" metaphor for Latina/o voters); Anthony York, Flexing Latino Muscle, CAL. J., June 1, 2004, at 40 ("Throughout the 1990s, many journalists and political scientists routinely referred to the state's Latino voters as a 'sleeping giant.'").
45. See Kevin R. Johnson, "Melting Pot" or "Ring of Fire"?: Assimilation and the Mexican-American Experience, 85 CALIF. L. REV. 1259, 1290-91 (1997) ("Latinos differ widely in terms of race, immigration status, duration in this country, the circumstances under which they came, social class, linguistic abilities, and culture, to name a few salient characteristics.") (footnote omitted).
46. See Rodolfo O. de la Garza & Louis DeSipio, Save the Baby, Change the Bathwater, and Scrub the Tub: Latino Electoral Participation After Seventeen Years of Voting Rights Act Coverage, 71 TEX. L. REV. 1479, 1511-13 (1993); see also Sylvia R. Lazos Vargas, The Latina/o and APIA Vote Post-2000: What Does It Mean to Move Beyond "Black and White" Politics?, 81 OR. L. REV. 783, 801 (2002) ("Latina/o registration lags as much as fourteen and fifteen percentage points behind the registration rates for Whites.") (footnote omitted).
47. See de la Garza & DeSipio, supra note 46, at 1499-1501.
48. See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) (finding that Texas congressional redistricting plan violated Latina/o citizens' voting rights); Lopez v. Monterey County, 525 U.S. 266 (1999) (ruling on a claim that voting rights of Hispanics had been violated through system of judicial districts).
49. See Daniel J. Rearick, Note, Reaching Out to the Most Insular Minorities: A Proposal for Improving Latino Access to the American Legal System, 39 HARV. C.R.-C.L. L. REV. 543 (2004).
50. See Lazos Vargas, supra note 46, at 844-45.
51. See infra Part II.
52. See JUAN F. PEREA ET AL., RACE AND RACES 96-178 (2d ed. 2007) (summarizing history of African Americans in the United States).
53. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (invalidating de jure segregation laws in public schools); Loving v. Virginia, 388 U.S. 1 (1967) (invalidating anti-miscegenation laws).
54. See, e.g., Hernandez v. Texas, 347 U.S. 475 (1954) (finding that Mexican-American citizens had been unconstitutionally excluded from juries in Texas county and historically had suffered from social discrimination as well). See generally RODOLFO F. ACUÑA, OCCUPIED AMERICA (6th ed. 2006) (chronicling a history of discrimination against Mexican-Americans in U.S. social life); NEIL FOLEY, THE WHITE SCOURGE (1997) (studying the complex history of race and class relations in Texas); DAVID MONTEJANO, ANGLOS AND MEXICANS IN THE MAKING OF TEXAS, 1836-1986 (1987) (same). Consider the negative stereotypes of Latina/os frequently depicted in the media. See Richard Delgado & Jean Stefancic, Can Free Expression Remedy Systemic Social Ills?, 77 CORNELL L. REV. 1258, 1273-75 (1992) (analyzing the impact of negative stereotypes of various minority groups, including Mexican-Americans, in the mass media); Mary Romero, State Violence, and the Social and Legal Construction of Latino Criminality: From El Bandido to Gang Member, 78 DENV. U. L. REV. 1081, 1089-98 (2001) (studying the development of the stereotype of the Latino gang member). See generally STEVEN W. BENDER, GREASERS AND GRINGOS (2003) (offering in-depth analysis of stereotypes of Latina/os in popular culture).
55. See Johnson, supra note 36, at 1499-510.
56. See ANTI-DEFAMATION LEAGUE, IMMIGRANTS TARGETED: EXTREMIST RHETORIC MOVES INTO THE MAINSTREAM (2007), available at http://www.adl.org/civil_rights/ anti_immigrant/ (discussing anti-immigrant groups and the nature of the modern immigration debate).
57. See Kevin R. Johnson & George A. Martinez, Discrimination by Proxy: The Case of Proposition 227 and the Ban on Bilingual Education, 33 U.C. DAVIS L. REV. 1227, 1239-43 (2000) (exploring the phenomenon of discrimination through proxy). Many years ago, Derrick Bell suggested that facially neutral initiatives that have racial impacts are most in need of meaningful judicial review. See Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 WASH. L. REV. 1, 24 (1978).
58. See infra text accompanying notes 161-165.
59. See Michael A. Olivas, Lawmakers Gone Wild? College Residency and the Response to Professor Kobach, 61 SMU L. REV. 99, 104 & n.14 (2008).
60. See supra text accompanying notes 25, 38-42.
61. See RICHARD DELGADO & JEAN STEFANCIC, CRITICAL RACE THEORY: AN INTRODUCTION 51-56 (2001).
62. See Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color, 43 STAN. L. REV. 1241 (1991); Angela P. Harris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581 (1990).
63. See Kevin R. Johnson, Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender, and Class, 42 UCLA L. REV. 1509, 1541-48 (1995). Asian Americans suffer disadvantages in U.S. social life similar to Latina/os, because of their perpetual perceived "foreigner" status and the fact that they are generally classified as racially different. See Keith Aoki, "Foreign-Ness" & Asian American Identities: Yellowface, World War II Propaganda and Bifurcated Racial Stereotypes, 4 ASIAN PAC. AM. L.J. 1 (1996); Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, "Foreignness, " and Racial Hierarchy in American Law, 76 OR. L. REV. 261 (1997); Neil Gotanda, "Other Non-Whites" in American Legal History: A Review of Justice at War, 85 COLUM. L. REV. 1186 (1985) (book review).
64. See Kevin R. Johnson, Hurricane Katrina: Lessons About Immigrants in the Modern Administrative State, 45 HOUS. L. REV. 11, 22-44 (2008) (analyzing political process defects that effectively ensure that immigration law and its enforcement will not be responsive to the needs of immigrants).
65. See infra text accompanying notes 131-165.
66. See, e.g., Sylvia R. Lazos Vargas, Judicial Review of Initiatives and Referendums in Which Majorities Vote on Minorities' Democratic Citizenship, 60 OHIO ST. L.J. 399 (1999) (proposing a three-factor test for judicial review of initiatives involving minority's civic standing); Louis J. Sirico, Jr., The Constitutionality of the Initiative and Referendum, 65 IOWA L. REV. 637, 641 (1980) (proposing a method for judicial review of initiatives and referendum).
67. See Bell, supra note 57, at 16-17.
68. 268 U.S. 510 (1925); see Paula Abrams, The Little Red Schoolhouse: Pierce, State Monopoly of Education and the Politics of Intolerance, 20 CONST. COMMENT. 61, 66-70 (2003) (summarizing the anti-immigrant, anti-Catholic sentiments influenced initiative campaign in Oregon and how "[t]he Ku Klux Klan fueled nativist fires").
69. Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629, 646 (1995) (quoting Biennial Message of Governor William Irwin to the Legislature of the State of California, Twenty-Third Session, 1880, at 36); see ELMER CLARENCE SANDMEYER, THE ANTI-C HINESE MOVEMENT IN CALIFORNIA 62-63 (1991) (discussing initiative).
70. See, e.g., Porterfield v. Webb, 263 U.S. 225 (1923); Terrace v. Thompson, 263 U.S. 197 (1923).
71. 239 U.S. 33, 35 (1915). Some commentators have contended that this decision was more a substantive due process decision that protected property rights, which was popular in the era of Lochner v. New York, 198 U.S. 45 (1905), than one seeking to protect immigrants against discrimination. See Timothy Sandefor, The Right to Earn a Living, 6 CHAP. L. REV. 207, 239-40 (2003). See generally Thomas W. Joo, New "Conspiracy Theory" of the Fourteenth Amendment: Nineteenth Century Chinese Civil Rights Cases and the Development of Substantive Due Process Jurisprudence, 29 U.S.F. L. REV. 353 (1994) (analyzing Chinese civil rights cases during the Lochner era through a lens of substantive due process).
72. The initiative addressed the apparent concern, which is echoed in the debate over immigration in the modern United States, that noncitizens were taking jobs from U.S. citizens. See, e.g., GEORGE J. BORJAS, HEAVEN'S DOOR (1999) (claiming that the current level and composition of immigration to the United States-especially of low-skilled immigrants-harm the American economy).
73. See infra Part II.A.
74. See infra text accompanying notes 104-121 (analyzing political dynamics surrounding anti-affirmative action initiatives).
75. See infra Part II.B.
76. See Lazos Vargas, supra note 66, at 428-32.
77. 517 U.S. 620 (1996).
78. Id. at 623-24 (emphasis added) (citations omitted).
79. See Equal. Found, of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 291 (6th Cir. 1997), cert, denied, 525 U.S. 943 (1998).
80. See Cody Hoesly, Comment, Reforming Direct Democracy: Lessons from Oregon, 93 CALIF. L. REV. 1191, 1238 (2005); see also Leib, supra note I,at 905 n.11 ("Recently there have been a plethora of initiatives attempting to ban gay marriage, which have overwhelming[ly] been approved by the electorate. In 2004, for instance, voters from eleven states passed gay marriage bans") (emphasis added) (citation omitted); Kurt G. Kastorf, Comment, Logrolling Gets Logrolled: Same-Sex Marriage, Direct Democracy, and the Single Subject Rule, 54 EMORY L.J. 1633, 1633 (2005) ("During the 2004 election, Georgia was one of eleven states to allow voters to weigh in on whether its state constitution should exclude gays and lesbians from marriage.") (footnote omitted).
81. See Thad Kousser & Mathew D. McCubbins, Social Choice, Crypto-Initiatives, and Policymaking by Direct Democracy, 78 S. CAL. L. REV. 949 (2005).
82. See Bell, supra note 57, at 18-20; Julian N. EuLe, Judicial Review of Direct Democracy, 99 YALE L.J. 1503, 1555-57 (1990).
83. Bell, supra note 57, at 14 (emphasis added).
84. See Comprehensive Immigration Reform Act of 2007, S. 1348, 110th Cony. (1st Sess. 2007).
85. See Liz Stern & Carl Hampe, Legal Implications of the Immigration Compromise. WASH. POST., May 24, 2007, http://www.washingtonpost.com/wp-dyn/eontent/discussion 2007/05/21/ DI2007052101351.html; Immigration Compromise Said to Face Uncertain Fate. FRONTRUNNER, May 22, 2007.
86. See supra text accompanying notes 50-51.
87. See supra Part II.B.
88. See Sherman J. Clark, Ennobling Direct Democracy, 78 U. COLO. L. REV. 1341, 1344 (2007) ("Direct democracy... potentially... encourage[es] citizens to exercise power over others without acknowledging or accepting responsibility for what they do.").
89. Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective, 67 CHI.-KENT L. REV. 707, 734 (1991) (footnote omitted). Some observers used this phenomenon to explain the discrepancy in some states between the poll data and actual voting results in the 2008 Democratic presidential primary race between Senators Hillary Clinton and Barack Obama, an African American. See Robert Novak, Obama-Clinton Stalemate Worries Dem Lieders Wary of Poll Data, CHI.-SUN TIMES, Feb. 11, 2008, at 35.
90. See Bell, supra note 57, at 2.
91. Bell, supra note 57, at 18 (footnote omitted).
92. See Lazos Vargas, supra note 66, at 426-28 (analyzing anti-fair housing and school desegregation measures).
93. 426 U.S. 668, 670-73 (1976).
94. 402 U.S. 137, 138-39 (1971).
95. See supra text accompanying notes 76-80.
96. 387 U.S. 369 (1967).
97. See id. at 373-75.
98. 393 U.S. 385, 387 (1969) (emphasis added).
99. Id. at 390 (emphasis added). The precedent of Hunter v. Erickson was relied on in unsuccessful challenges to California's Proposition 209, which banned race conscious affirmative action, and Proposition 227, which ended bilingual education in the state's public schools. See Coal, for Econ. Equity v. Wilson, 122 F.3d 692, 703-09 (9th Cir. 1997), cert. denied, 522 U.S. 963 (1997); Valeria v. Davis, 307 F.3d 1036, 1039-1042 (9th Cir. 2002); see also infra text accompanying notes 104-121, 166-177 (discussing anti-affirmative action and anti-bilingual education initiatives); Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 HASTINGS CONST. L.Q. 1019 (1996) (making political structure argument in articulating a possible legal challenge to Proposition 209).
100. See. e.g., ROBERT A. DENTLER & MARVIN B. SCOTT, SCHOOLS ON TRIAL, (1981) (discussing controversy over busing in Boston, Massachusetts); NICOLAUS MILLS, THE GREAT SCHOOL BUS CONTROVERSY (1973) (collecting readings on the national debate over school busing as a tool for desegregating the public schools); see also J. HARVIE WILKINSON III, FROM Brown TO Bakke: THE SUPREME COURT AND SCHOOL INTEGRATION: 1954-1978, at 161-92 (1979) (outlining arguments for and against busing to desegregate public schools).
101. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).
102. See Crawford v. Bd. of Educ., 458 U.S. 527 (1982).
103. President Richard Nixon's administration advanced a number of strategies for curtailing busing as a tool for desegregating the public schools. See David S. Tatel, Judicial Methodology, Southern School Desegregation, and the Rule of Law, 79 N.Y.U. L. REV. 1071, 1089-99 (2004).
104. For analysis of the institutionalization of affirmative action at UC Berkeley, as well as other elite public universities, see Daniel N. Lipson, Embracing Diversity: The Institutionalization of Affirmative Action as Diversity Management at UC-Berkeley, UT-Austin, and UW-Madison, 32 LAW & SOC. INQUIRY 985 (2007).
105. The threat to affirmative action in the courts peaked with the court of appeal's decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied sub nom. Thurgood Marshall Legal Society v. Hopwood, 518 U.S. 1033 (1996), which held that the Supreme Court had through intervening decisions effectively overruled its precedent permitting race-conscious affirmative action and invalidated the University of Texas's race-conscious admission scheme. The Texas legislature responded by enacting a law making the top ten percent of the graduates of every high school in the state eligible for admission to the University of Texas. See LANI GUINIER & GERALD TORRES, THE MINER'S CANARY 71-74 (2002). The Supreme Court later overruled Hopwood in GrutTer v. Bollinger, 539 U.S. 306 (2003).
106. See Lazos Vargas, supra note 66, at 454-62. Initiatives represent a political response to the refusal of the courts to dismantle affirmative action. A much-publicized article in 2004 by Professor Richard Sander added fuel to the national political debate over race-conscious affirmative action; Sander contended that the empirical data demonstrates that affirmative action in law school admissions injures, not helps, African Americans by placing them in schools in which they are under-qualified (and thus under-perform) compared to the general student body. See Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004); see also Richard H. Sander, The Racial Paradox of the Corporate Law Firm, 84 N.C. L. REV. 1755 (2006) (contending that empirical data shows that racial preferences at law schools in some ways undermines minority attorneys' progress at law firms). Not surprisingly, this novel "mismatch" claim generated a firestorm of commentary. See, e.g., David L. Chambers, Timothy T. Clydesdale, William C. Kidder, & Richard O. Lempert, The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, 57 STAN. L. REV. 1855 (2005); Michele Landis Dauber, The Big Muddy, 57 STAN. L. REV. 1899 (2005); Richard Delgado, Rodrigo's Riposte: The Mismatch Theory of Law School Admissions, 57 SYRACUSE L. REV. 637 (2007); Kevin R. Johnson & Angela Onwuachi-Willig, Cry Me a River: The Limits of "A Systemic Analysis of Affirmative Action in American Law Schools, " 7 AUR.-AM. LAW & POL'Y REP. 1 (2005).
107. See Coal, for Econ. Equity v. Wilson, 122 F.3d 692, 697 (9th Cir. 1997) (upholding initiative). For a detailed critical analysis of Proposition 209, see Girardeau A. Spann, Proposition 209, 47 DUKE L.J. 187 (1997); see also ANDREA GUERRERO, SILENCE AT BOALT HALL: THE DISMANTLING OF AFFIRMATIVE ACTION (2002) (chronicling demise of race-conscious affirmative action at UC Berkeley School of Law); Rachel F. Moran, Diversity and Its Discontents: The End of Affirmative Action at Boalt Hall, 88 CALIF. L. REV. 2241 (2000) (same).
108. See WASH. REV. CODE § 49.60.400(1) (2002); Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188, 1192 (9th Cir. 2000); see also Jodi Miller, "Democracy in Free Fall": The Use of Ballot Initiatives to Dismantle State-Sponsored Affirmative Action Programs, 1999 N.Y.U. ANN. SURV. AM. L. 1, 8-11 (discussing California and Washington initiatives).
109. See Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding University of Michigan law school's race-conscious affirmative action program that required individualized review of each application); Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating undergraduate admissions scheme that relied excessively on race in allocating points for admission); see also Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (holding that school district failed to carry burden of showing that consideration of race in elementary and secondary school assignments was narrowly tailored to achieve a compelling state interest.). For an analysis of the evolution of the law of affirmative action in higher education, see GIRARDEAU A. SPANN, THE LAW OF AFFIRMATIVE ACTION (2000); Rachel F. Moran, Of Doubt and Diversity: The Future of Affirmative Action in Higher Education, 67 OHIO ST. L.. 201 (2006). One fascinating issue left by Grutter was Justice O'Connor's curious pronouncement in the majority opinion that affirmative action would no longer be necessary in twenty-five years, see Grutter, 539 U.S. at 343 ("We expect that 25 years from now, the use of racial preferences will no longer be necessary.... "), a statement that quickly provoked considerable commentary. See Vikram David Amar & Evan Caminker, Constitutional Sunsetting?: Justice O'Connor's Closing Comments in Grutter, 30 HASTINGS CONST. L.Q. 541 (2003); Joel K. Goldstein, Justice O'Connor's Twenty-Five Year Expectation: The Legitimacy of Durational Limits in Grutter, 67 OHIO ST. L.. 83 (2006); Kevin R. Johnson, The Last Twenty Five Years of Affirmative Action?, 21 CONST. COMMENT. 171 (2004).
110. See Tamar Lewin, Michigan Rejects Affirmative Action, and Backers Sue, N.Y. TIMES, Nov. 9, 2006, at P16; see also Khaled Ali Beydoun, Without Color of Law: The Losing Race Against Colorblindness in Michigan, 12 MICH. J. RACE & L. 465 (2007) (offering insights from activist about the anti-affirmative action campaign in Michigan).
111. See supra text accompanying notes 38-46.
112. See Johnson & Martí supra note 57, at 1239-43.
113. See id. at 1239-43.
114. See generally Jennifer M. Chacón, Race as a Diagnostic Tool: Latinas/os and Higher Education in California, Post - 209, 96 CALIF. L. REV. 5 (analyzing impediments to Latinas/os in accessing higher education).
115. See Jennifer Rubin, Propositioning the States: Ward Connerly's 2008 Campaign, WKLY. STANDARD, May 7, 2007.
116. Operation King's Dream v. Connerly, No. 06-12773, 2006 U.S. Dist. LEXIS 61323, at *2 (E.D. Mich. Aug. 29, 2006).
117. See Richard Frankel, Proposition 209: A New Civil Rights Revolution?, 18 YALE L. & POL'Y REV. 431, 431 (2000).
118. Peter Schmidt, 5 More States May Curtail Affirmative Action, CHRON. HIGHER ED., Oct. 19, 2007, at A1.
119. See supra text accompanying notes 76-80.
120. See supra text accompanying notes 84-85 (discussing the failure of comprehensive immigration reform in 2007).
121. Schmidt, supra note 118.
122. See, e.g., RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION 74-80, 114 (1996); Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN. L. REV. 855, 890 (1995); Peter H. Schuck, Alien Rumination, 105 YALE L.J. 1963, 2000-04 (1996) (book review).
123. Orlando Patterson, Affirmative Action: The Sequel, N.Y. TIMES, June 22, 2003, at D11.
124. See Michael A. Olivas, HRIRA, The DREAM Act, and Undocumented College Student Residency, 30 J.C. & U.L. 435, 452-56 (2004); Thomas R. Ruge & Angela D. Iza, Higher Education for Undocumented Students: The Case for Open Admissions and In-State Tuition Rates for Students Without Lawful Immigration Status, 15 IND. INT'L & COMP. L. REV. 257, 266-274 (2005). For a study of the impacts of denying higher education to undocumented immigrants, see ROBERT G. GONZALES, AMERICAN IMMIGRATION LAW FOUNDATION, WASTED TALENT AND BROKEN DREAMS: THE LOST POTENTIAL OF UNDOCUMENTED STUDENTS (2007), available at http://www.ailf.org/ipc/infocus/ ipc_infocus_07dream.shtml.
125. See National Immigration Law Center, DREAM Act: Basic Information (2007), http://www.nilc.org/immlawpolicy/DREAM/index.htm. For detailed discussions of past versions of the DREAM Act and arguments favoring its enactment, see Susana Garcia, Dream Come True or True Nightmare? The Effect of Creating Educational Opportunity for Undocumented Youth, 36 GOLDEN GATE U. L. REV. 247 (2006); Berta Hernández-Truyol & Justin Luna, Children and Immigration: International, Local, and Social Responsibilities, 15 B.U. PUB. INT. L.J. 297, 314-16 (2006); Victor Romero, Postsecondary School Education Benefits for Undocumented Immigrants: Promises and Pitfalls, 27 N.C. J. INT'L L. & COM. REG. 393 (2002); Youngro Lee, Note, To Dream or Not To Dream: A Cost-Benefit Analysis of the Development, Relief, and Education for Alien Minors (DREAM) Act, 16 CORNELL J.L. & PUB. POL'Y 231 (2006); Vicky J. Salinas, Comment, You Can Be Whatever You Want to Be When You Grow Up, Unless Your Parents Brought You to This Country Illegally: The Struggle to Grant In-State Tuition to Undocumented Immigrant Students, 43 HOUS. L. REV. 847 (2006); see also María Pabón López, Reflections on Educating Latino and Latino Undocumented Children: Beyond Plyler v. Doe, 35 SETON HALL L. REV. 1373, 1400-04 (2005) (summarizing status of undocumented student access to higher education).
126. See Julia Preston, In Increments, Senate Revisits Immigration Bill, N.Y. TIMES, Aug. 3, 2007, at A1 (noting opposition to the DREAM Act in the House of Representatives and quoting Representative Brian P. Bilbray, who referred to the bill as "the Nightmare Act"). Compare Kris W. Kobach, Immigration Nullification: In-State Tuition and Lawmakers Who Disregard the Law, 10 N.Y.U. J. LEGIS. & PUB. POL'Y 473 (2007) (criticizing strongly state and federal DREAM Acts), with Olivas, supra note 59 (advocating passage of these laws).
127. See Preston, supra note 126, at A1.
128. See Karin Brulhard, Bill Aimed at Immigrant Children Fails, WASH. POST, Oct. 25, 2007, at A12. For a defense of "amnesty" for undocumented immigrants, see Bill Ong Hing, The Case for Amnesty, 3 STAN. J. CIV. RTS. & CIV. LIBERTIES 233 (2007); Bryn Siegel, Note, The Political Discourse of Amnesty in Immigration Policy, 41 AKRON L. REV. 291 (2008).
129. See Patrick McGreevy, Gov. Signs Gun Bills Opposed by NRA, L.A. TIMES, Oct. 14, 2007, at B1 (reporting on Governor's veto of the California DREAM Act).
130. See infra text accompanying notes 156-160 (discussing Arizona measure); Sara Hebel, Arizona 's Colleges Are in the Crosshairs of Efforts to Curb Illegal Immigration. CHRON. HIGHER ED., Nov. 2, 2007, at A15.
131. See U.S. CENSUS BUREAU, supra note 23, at 11.
132. See Kevin R. Johnson, Los Olvidados: Images of the Immigrant, Political Power of Noncitizens, and Immigration Law and Enforcement, 1993 BYU L. REV. 1139, 1149-81.
133. See supra text accompanying notes 27-37.
134. See, e.g., Demore v. KiM, 538 U.S. 510, 522 (2003) (upholding the mandatory detention of certain noncitizens pending their deportation and emphasizing that the "this Court has firmly and repeatedly endorsed the proposition that Congress may make rules as to aliens that would he unacceptable if applied to citizens.") (citations omitted); INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999) (holding that the court of appeals erred in failing to afford proper deference to agency interpretation of the Immigration and Nationality Act); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (ruling that agency finding that the applicant was not eligible for asylum could be reversed only if the reviewing court found that "a reasonable factfinder would have to conclude that the requisite fear of persecution existed") (citation omitted); see also Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 348 (2005) (referring, in an immigration case, to the Supreme Court's "customary policy of deference to the President in matters of foreign affairs"). Such deference commenced in earnest with the Supreme Court's decision in Chae Chin Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 609 (1889), in which the Supreme Court upheld a law greatly restricting Chinese immigration to the United States - one of a series of laws known as the "Chinese exclusion laws" - and emphasized that the courts should leave immigration matters to the political branches of the federal government. See generally NATSU TAYLOR SAITO, FROM CHINESE EXCLUSION TO GUANTÁNTAMO BAY (2007) (analyzing evolution of judicial deference to government's treatment of immigrants over time).
135. See, e.g., THOMAS ALEXANDER ALEINIKOFF, SEMBLANCES OF SOVEREIGNTY (2002); GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION (1996); Kif Augustine-Adams, The Plenary Power Doctrine After September 11, 38 U.C. DAVIS L. REV. 701 (2005); Gabriel J. Chin, Segregation's Last Stronghold: Race, Discrimination and the Constitutional Law of Immigration, 46 UCLA L. REV. 1 (1998).
136. See Raquel Aldana & Sylvia R. Lazos Vargas, "Aliens" in Our Midst Post-9/11: Legislating Outsiderness Within the Borders, 38 U.C. DAVIS L. REV. 1683, 1691 (2005).
137. See generally Keith Aoki, No Right to Own?: The Early Twentieth-Century "Alien Land Laws " as a Prelude to Internment, 40 B.C. L. REV. 37 (1998), 19 B.C. THIRD WORLD L.J. 37 (1998) (analyzing history surrounding anti-Asian roots of alien land laws and linking their popularity with the internment of persons of Japanese ancestry during World War II); Edwin E. Ferguson, The California Alien Land Law and the Fourteenth Amendment, 35 CALIF. L. REV. 61 (1947) (to same effect); Dudley O. McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 CALIF. L. REV. 7 (1947) (same).
138. See BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY 1850-1990, at 30 (1993).
139. See generally IAN HANEY-LÓPEZ, WHITE BY LAW (10th anniversary ed. 2006) (analyzing caselaw interpreting the requirement in place from 1790 to 1952 that an immigrant be "white" to naturalize).
140. See Ozawa v. United States, 260 U.S. 178 (1922) (holding that immigrant from Japan was not "white" and thus ineligible for naturalization); United States v. Thind, 261 U.S. 204 (1923) (ruling to the same effect with respect to immigrant from India).
141. Aoki, supra note 137, at 57 (emphasis added).
142. See Porterfield v. Webb, 263 U.S. 225 (1923); see also Terrace v. Thompson, 263 U.S. 197 (1923) (upholding a similar Washington law).
143. See Oyama v. California, 332 U.S. 633 (1948).
144. Oyama, 332 U.S. at 650-51, 658-59 (Murphy, J., concurring) (citations omitted); see also Johnson, supra note 69, at 648-50. Justice Murphy expressed similar sentiments in dissenting in the Supreme Court's decision upholding the internment of persons of Japanese ancestry during World War II. See Korematsu v. United States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting) ("[The] exclusion [of the Japanese from the West Coast] goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism"). See generally Symposium, Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary, 68 LAW & CONTEMP. PROBS. 1 (2005) (critically analyzing Japanese internment and its legacy); Symposium, The Long Shadow of Korematsu, 40 B.C. L. REV. 1 (1998), 19 B.C. THIRD WORLD L.J. 1 (1998) (offering a variety of perspectives on the legacy of the internment of persons of Japanese ancestry during World War II).
145. See generally Johnson, supra note 63; Johnson, supra note 69; Ruben J. Garcia, Comment, Critical Race Theory and Proposition 187: The Racial Politics of Immigration Law, 17 CHICANO-LATINO L. REV. 118 (1995). Proposition 187's prohibition of undocumented immigrant children from elementary and secondary schools directly conflicted with the Supreme Court's decision in Plyler v. Doe, 457 U.S. 202 (1982), which invalidated a Texas law effectively barring undocumented children from public elementary and secondary schools. See Michael A. Olivas, Plyler v. Doe, the Education of Undocumented Children, and the Polity, in IMMIGRATION STORIES 197 (David A. Martin & Peter H. Schuck eds., 2005) (analyzing the case's background). Supporters saw Propostion 187 as a way to force the Supreme Court to reconsider Plyler v. Doe, which was a 5-4 decision.
146. See League of United Latin Am. Citizens v. Wilson, 997 F. Supp. 1244 (C.D. Cal. 1997). The conventional wisdom has been that the power to regulate immigration is federal and that Congress has passed comprehensive immigration laws that preempt the field. See DeCanas v. Bica, 424 U.S. 351, 354 (1976) ("Power to regulate immigration is unquestionably exclusively a federal power.") (citations omitted); League of United Latin Am. Citizens v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995) (holding that most of California's Proposition 187 sought to regulate immigration and thus was preempted by federal law); see also Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007) (holding that a local immigration ordinance was preempted by federal law). For an argument that state and local governments should be afforded more power to facilitate the integration of immigrants into U.S. society, see Cristina Rodríguez, The Significance of the Local in Immigration Regulation, 106 MICH. L. REV. 567 (2008).
147. See Johnson, supra note 69, at 650-61.
148. See John Marelius, Wilson Ad Out to Ease Prop. 187 Drumbeat, SAN DIEGO UNION-TRIB., Oct. 25, 1994, at A3; see also KENT A. ONO & JOHN M. SLOOP, SHIFTING BORDERS, at 99-100 (2002) (contending that Proposition 187 focused almost exclusively on Mexican immigrants and Mexican-Americans). Columnist Ruben Navarrette, Jr. proclaimed that Proposition 187 "was... about too many Latinos being too visible on too many streets in too many California cities." Ruben Navarrette, Jr., Is This What Prop. 187 Sought? More Latino Citizens?, L.A. TIMES, Apr. 30, 1995, at M6.
149. TONY MILLER, ACTING SECRETARY OF STATE, CALIFORNIA BALLOT PAMPHLET: GENERAL ELECTION NOVEMBER 8, 1994, at 54 (capitals in original).
150. George Ramos, Prop. 187 Debate: No Tolerance But Abundant Anger, L.A. TIMES, Oct. 10, 1994, at B3 (quoting Ron Prince). The United States has a long and sordid history of lynching African Americans. See generally JAMES ALLEN ET AL., WITHOUT SANCTUARY (2000) (collecting photographs of lynchings in the United States); 9 PAUL FINKELMAN, RACE, LAW, AND AMERICAN HISTORY 1700-1990 (1992) (analyzing history of lynching); David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America, 39 LAW & SOC'Y REV. 793 (2005) (reviewing history of public lynchings in the United States).
151. Margot Homblower, Making and Breaking Law, TIME, NOV. 21, 1994, at 68 (quoting Robert Kiley). For analysis of the concerns about immigrant rights protesters in 2006 carrying Mexican flags, see Anupam Chander, Flying the Mexican Flag in Los Angeles, 75 FORDHAM L. REV. 2455 (2007).
152. Johnson, supra note 69, at 659 (footnote omitted).
153. See authorities cited supra note 145.
154. The racially polarized vote on Proposition 187 resulted in no small part from the fact that immigration has proven to be a social issue in which debate often boils down to a conflict over social status between Latina/os and Anglos. See Rachel F. Moran, Bilingual Education as a Status Conflict, 75 CALIF. L. REV. 321 (1987) (analyzing the fight for status among Anglos and Latina/as in the debate over bilingual education in public schools). Proposition 187, as well as the English-language initiatives analyzed infra, reflect longstanding racial conflict.
155. See supra text accompanying notes 137-144.
156. See Richard Marosi, Decade Later, Prop. 187 Has an Echo in Arizona, L.A. TIMES, Oct. 23,2004, at A1.
157. See Susan Carroll & Yvonne Wingett, Immigration Federal Ruling/Prop. 200 Now Law in Arizona; Tucson Judge Clears It, ARIZ. REP., Dec. 23, 2004, at A1.
158. Raquel Aldana, On Rights, Federal Citizenship, and the "Alien", 46 WASHBURN L.J. 263, 275-76 (2007) (footnote omitted); see Hector O. Villagra, Arizona 's Proposition 200 and the Supremacy of Federal Law: Elements of Law, Politics, and Faith, 2 STAN. J. C.R. & C.L. 295 (2006) (contending that Proposition 200 is preempted by federal laws). Arizona later passed a state law imposing sanctions on businesses that employ undocumented workers. See Arizona Contractors Ass'n, Inc. v. Candelaria, 534 F. Supp. 2d 1036 (D. Ariz. 2008) (upholding Arizona law that allows business licenses of employers of undocumented immigrants to be revoked).
159. See Friendly House v. Napolitano, 419 F.3d 930 (9th Cir. 2005).
160. See Yes on Prop 200 v. Napolitano, 160 P.3d 1216 (Ariz. Ct. App. 2007).
161. See Rick Su, A Localist Reading of Local Immigration Restrictions, 86 N.C. L. REV. (forthcoming 2008) (understanding spate of local immigration ordinances as conventional response to demographic and socioeconomic changes at the local level). A federal court ultimately struck down the much-publicized Hazleton ordinance-the Illegal Immigration Relief Act-as preempted by federal law. See Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007); see also Eric L'Heureux Issadore, Note, Is Immigration Still Exclusively a Federal Power? A Preemption Analysis on Legislation hy Hazleton, Pennsylvania Regulating Illegal Immigration, 52 VILL. L. REV. 331 (2007) (analyzing the Hazleton ordinance); Escondido, California Backs Down from Anti-Immigrant Ordinance, U.S. FED. NEWS, Dec. 14, 2006 (discussing a settlement in which the City of Escondido agreed not to enforce a local ordinance barring rental of apartments to undocumented immigrants); Samantha Henry, Town Sued Over Crackdown on Illegals, HERALD NEWS (Passaic County, N.J.), Aug. 16, 2006, at B6 (reporting on a suit against Riverside, New Jersey challenging an immigration ordinance); Julia Preston, City's Immigration Restrictions Go on Trial, N.Y. TIMES, Mar. 13, 2007, at A13 (discussing the trial in the case challenging the Hazleton immigration ordinance); Keith Aoki, (In) Visible Cities: Three Local Government Models, Immigration, Non-Citizen Voting and Language Regulation, 11 OR. INT'L L. REV (forthcoming 2008) (analyzing the consequences of local governments acting in transnational and international arenas, including immigration).
162. See Huyen Pham, The Private Enforcement of Immigration Laws, 96 GEO. L.J. 777 (2008) (analyzing how efforts to regulate immigration increasingly have relied on private enforcement of the immigration laws); Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 VAND. L. REV. (forthcoming 2008) (critically analyzing local ordinances that prohibit private landlords from renting to undocumented immigrants).
163. Compare Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007) (invalidating a city immigration ordinance on federal preemption grounds), with Gray v. City of Valley Park, No. 4:07CV00881 ERW, 2008 U.S. Dist. LEXIS 7238 (E.D. Mo. Jan. 31, 2008) (holding that a similar city ordinance was not preempted by federal law). For critical analysis of local attempts to regulate immigration, see Kristina M. Campbell, Local Illegal Immigration Relief Act Ordinances: A Legal, Policy, and Litigation Analysis, 84 DENV. U. L. REV. 1041 (2007); Michael A. Olivas, Immigration-Related State and Local Ordinances: Preemption, Prejudice, and the Proper Role for Enforcement, 2007 U. CHI. LEGAL F. 27; see also Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IOWA L. REV. 1449 (2006) (analyzing federalism issues raised in immigration enforcement); Michael A. Olivas, Preempting Preemption: Foreign Affairs, State Rights, and Alienage Classifications, 35 VA. J. INT'L L. 217 (1994) (arguing for adherence to a rule that state regulation of immigration is preempted by federal law); Huyen Pham, The Inherent Flaws in the Inherent Authority Position: Why Inviting Local Enforcement of Immigration Laws Violates the Constitution, 31 FLA. ST. U. L. REV. 965 (2004) (contending that local governments cannot constitutionally enforce immigration laws); Rose Cuison Villazor, What is a "Sanctuary"?, 61 SMU L. REV. 133 (2008) (analyzing the concept of public and private sanctuaries for immigrants). Recent years have seen increased calls by scholars for greater state and local involvement in immigration regulation. See, e.g., Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 788, 792 (2008) (contending that federal preemption of state and local immigration regulation is "contestable"); Kris W. Kobach, The Quintessential Force Multiplier: The Inherent Authority of Local Police to Make Immigration Arrests, 69 ALA. L. REV. 179 (2005) (contending that local police can enforce immigration laws); Peter H. Schuck, Taking Immigration Federalism Seriously, 2007 U. CHI. LEG. F. 57 (seeing an increased role for state and local governments in immigration regulation); Peter J. Spiro, The States and Immigration in an Era of Demi-Sovereignties, 35 VA. J. INT'L L. 121 (1994) (calling for a greater role of states in immigration regulation); see also Matthew Parlow, A Localist's Case for Decentralizing Immigration Policy, 84 DENV. U. L. REV. 1061 (2007) (contending that local governments should be permitted to regulate immigration in a manner consistent with federal immigration law and policy).
164. See Stephanie Sandoval, Immigrant Proposal Wins Easily, DALLAS MORNING NEWS, May 13, 2007, at Al. A federal court issued a temporary restraining order barring the ordinance from being enforced. See Stephanie Sandoval, Judge's Order Stops Rental Ban, For Now, DALLAS MORNING NEWS, May 21, 2007.
165. Mike Seate, Rage Over Illegals Brings '60s to Mind, PITT. TRIB. REV., June 7, 2007; see, e.g., Ruben Navarrette, Jr., Hate in the immigration Debate, SAN DIEGO UNION-TRIB., July 29, 2007, at G3 (observing that the anti-immigrant cause has become distinctly anti-Mexican and describing hate mail he, a prominent national commentator, who is a native-born U.S. citizen, receives, including letters calling him a '"dirty Latino'" who should go '"back to Mexico'"); John Keilman, Hispanics Rue City's New Rules, CHI. TRIB., Oct. 29, 2006, at C3 (reporting that Latina/os feel under attack by local ordinances like Hazleton's); Michael Powell & Michelle Garcia, Pa. City Puts Illegal Immigrants on Notice, WASH. POST, Aug. 22, 2006, at A3 (to the same effect).
166. See generally JAMES CRAWFORD, HOLD YOUR TONGUE (1992) (analyzing English only movement in United States). For an early example of language regulation, consider Meyer v. Nebraska, 262 U.S. 390 (1923) in which the Supreme Court invalidated the Nebraska legislature's response to immigration by criminalizing educational instruction in languages other than English. See Abrams, supra note 68, at 72-77 (discussing background of case and observing that Nebraska and other similar state "laws were enacted in 1919, during the Red Scare, amid concerns that residents or citizens who could not speak English posed a national security threat") (footnote omitted).
167. See supra note 57 (introducing concept of discrimination by proxy).
168. See Steven W. Bender, Direct Democracy and Distrust: The Relationship Between Language Law Rhetoric and the Language Vigilantism Experience, 2 HARV. LATINO L. REV. 145 (1997); Christopher David Ruiz Cameron, How the Garcia Cousins Lost Their Accents: Understanding the Language of Title VII Decisions Approving English-Only Rules as the Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 85 CALIF. L. REV. 1347 (1997); Cristina M. Rodríguez, Language Diversity in the Workplace, 100 NW. U. L. REV. 1689 (2006). For a thoughtful approach to embracing multilingualism through encouraging participation in U.S. social life, see Cristina M. Rodriguez, Language and Participation, 94 CALIF. L. REV. 687 (2006).
169. Bill Ong Hing, Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society. 81 CALIF. L. REV. 863, 874 (1993).
170. See Lazos Vargas, supra note 66, at 433-47.
171. See Ruiz v. Hull, 957 P.2d 984 (Ariz. 1998) (striking down the initiative on First Amendment grounds); see also Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1995) (en bane), vacated us moot, 520 U.S. 43 (1997). Alaska voters also passed an initiative requiring government employees to exclusively use English in their official duties, which the Alaska Supreme Court struck down on First Amendment grounds. See Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183 (Alaska 2007).
172. See generally Johnson & Martínez, supra note 57 (analyzing the measure's discriminatory intent and impacts). Other states, including Massachusetts, have passed similar measures. See Lisa B. Ros, Note, Learning the Language: An Examination of the Use of Voter Initiatives to Make Language Education Policy, 82 N.Y.U. L. REV. 1510 (2007).
173. See supra text accompanying notes 145-155.
174. See Johnson & Martínez. supra note 57, at 1247-63.
175. Morning Edition (National Public Radio broadcast, May 29, 1998) (transcript no. 98052900V14) (remarks of Ron Unz).
176. Don Terry, Bilingual Education Facing Toughest Test, N.Y. TIMES, Mar. 10, 1998, at A1 (quoting Unz).
177. See Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002).
178. Proposition 187 is perhaps the most infamous example of this. See supra text accompanying notes 145-155.
179. For example, Latina/o voters blamed then-Governor Pete Wilson, who vigorously campaigned for the measure, for the initiative's passage. Wilson has now found himself almost exiled from the state and national political scene. Republican candidates subsequently learned from Wilson's example and sought to avoid immigrant-bashing, for fear of alienating Latina/o votes. See Kevin R. Johnson, Open Borders?, 51 UCLA L. REV. 193, 245 & n.308 (2003). Such caution, however, has recently disappeared, and politicians and voters have returned to blaming immigrants for a variety of social ills.
180. Eule, supra note 82, at 1558-80; see Glen Staszewski, Rejecting the Myth of Popular Sovereignty and Applying an Agency Model to Direct Democracy, 56 VAND. L. REV. 395 (2003) (contending that initiatives should be subject to procedural safeguards, including meaningful judicial review, similar to those that apply to the decisions of administrative agencies).
181. See supra text accompanying notes 27-31.
182. See. e.g., Hernandez v. Texas, 347 U.S. 475 (1954) (finding that exclusion of Mexican-Americans from juries was unconstitutional); see also Jamie Crook, From Hernandez v. Texas to the Present: Doctrinal Shifts in the Supreme Court's Latina/o Jurisprudence, 11 HARV. LATINO L. REV. 19 (2008) (analyzing the development of the Supreme Court's approach since Hernandez v. Texas to cases of discrimination against Latina/os). See generally MICHAEL A. OLIVAS, "COLORED MEN" AND "HOMBRES AQUI" (2006) (collecting essays analyzing Hernandez v. Texas and its impacts).
183. See ELY, supra note 28, at 161-62 (contending that, because noncitizens cannot vote and have suffered a history of discrimination, immigrants constitute a discrete and insular minority deserving of special protection by the courts). In City of Cleburne v. Cleburne Living Ctr:, 473 U.S. 432, 440 (1985), the Supreme Court emphasized that race, alienage, and national origin are so seldom relevant to the achievement of any legitimate state interest that laws that include such classifications are presumed to reflect prejudice and antipathy. For these reasons and because such discrimination is unlikely to be soon rectified by legislative means, these laws are subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling state interest. See Toll v. Moreno, 458 U.S. 1, 23 (1982) (Blackmun, J., concurring) ("[T]he fact that aliens constitutionally may be-and generally are-formally and completely barred from participating in the process of self-government makes particularly profound the need for searching judicial review of classifications grounded on alienage."); Guido Calabresi, The Supreme Court, 1990 Term-Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores), 105 HARV. L. REV. 80, 91 (1991) ("When an identifiable social group has been consistently and significantly underrepresented or in other ways excluded from the legislative process, traditional political processes cannot be relied upon to protect that group. The courts must therefore step in to guard the group from unjustified selective treatment, that is, discrimination.").
184. David Cole, Enemy Aliens, 54 STAN. L. REV. 953, 981 (2002).
185. Neal Katyal, Equality in the War on Terror, 59 STAN. L. REV. 1365, 1383-84 (2007).
186. See supra Part II (chronicling bias against noncitizens in initiative lawmaking throughout U.S. history).
187. See generally Kevin R. Johnson, Responding to the "Litigation Explosion ": The Plain Meaning of Executive Branch Primacy Over Immigration, 71 N.C. L. REV. 413 (1993) (calling for rigorous judicial review of Executive Branch immigration decisions).
188. See Kevin R. Johnson, A "Hard Look" at the Executive Branch's Asylum Decisions. 1991 UTAH L. REV. 283, 285-89.
189. Cf. Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 607-13 (1990) (analyzing significance of lack of dialogue between courts and Congress about substantive immigration laws because of plenary power doctrine).
190. One commentator characterized the 1996 reforms as "the most radical reform of immigration law in decades-or perhaps ever." PETER H. SCHLICK, CITIZENS, STRANGERS, AND IN-BETWEENS 143 (1998) (emphasis added). For analysis of some of the specific tough provisions of the 1996 immigration reform, see Daniel Kanstroom, Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1890 (2000); Teresa A. Miller, Citizenship & Severity: Recent Immigration Reforms and the New PenologY, 17 GEO. IMMIGR. L.J. 611 (2003); Nancy Morawetz, Understanding the Impact of the 1996 Deportation Laws and the Limited Scope of Proposed Reforms, 113 HARV. L. REV. 1936 (2000); James F. Smith, United States Immigration Law as We Know It: El Clandestino, the American Gulag, Rounding Up the Usual Suspects, 38 U.C. DAVIS L. REV. 747 (2005).
191. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001). For criticism of the Act, see, for example, Cole, supra note 184, at 966-74; Natsu Taylor Saito, Whose Liberty? Whose Security? The USA PATRIOT Act in the Context of COINTELPRO and the Unlawful Repression of Political Dissent, 81 OR. L. REV. 1051, 1111-28 (2002).
192. See, e.g., Susan M. Akram & Kevin R. Johnson, Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 N.Y.U. ANN. SURVEY AM. L. 295 (2002); Sameer M. Ashar, Immigration Enforcement and Subordination: The Consequences of Racial Profiling After September 11, 34 CONN. L. REV. 1185 (2002); Cole, supra note 184; Kevin R. Johnson, September 11 and Mexican Immigrants: Collateral Damage Comes Home, 52 DEPAUL L. REV 849 (2003); Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11, 34 COLUM. HUM. RTS. L. REV. 1 (2002); Victor C. Romero, Decoupling "Terrorist" From "Immigrant: " An Enhanced Role for the Federal Courts Post 9/11, 7 J. GENDER, RACE, & JUST. 201 (2003); Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575 (2002).
193. See HAYDUK, supra note 33, at 195-203; Raskin, supra note 33, at 1467-70; Gerald M. Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 MICH. L. REV. 1092, 1112-15 (1977); Kini, supra note 33, at 272; see also JOAQUIN AVILA, UCLA CHICANO STUDIES RESEARCH CTR., LATINO POLICY & ISSUE BRIEF NO. 9, POLITICAL APARTHEID IN CALIFORNIA: CONSEQUENCES OF EXCLUDING A GROWING NONCITIZEN POPULATION (2003), available at http://www.chicano.ucla.edu/press/briefs/archive.asp (analyzing impacts of growing immigrant population in California disenfranchised from the political process).
194. HAYDUK, supra note 33, at 68-69.
195. See Bell, supra note 57, at 23-28; Chemerinsky, supra note 1, at 305-06; EuLe, supra note 82, at 1559-73.
196. Cf. Johnson, supra note 64 (advocating scrutinizing review of administrative action affecting immigrants).
197. Bell, supra note 57, at 23; see also Lazos Vargas, supra note 66, at 506-07 (advocating "skeptical review" of initiatives "that impinge on minorities' citizenship rights"). But see Robin Charlow, Judicial Review, Equal Protection and the Problem of Plebiscites, 79 CORNELL L. REV. 527, 607-08 (1994) (contending that the case had not been made for heightened judicial review of initiatives); Mark Tushnet, Fear of Voting: Differential Standards of Review of Direct Legislation, 1996 ANN. SURV. AM. L. 373 (to the same effect). Bell further suggests that the greatest need for judicial review is when the initiative seeks to roll back civil rights gained by minorities through the ordinary legislative process: "[T]he need for court protection of [the representative] system is strongest when the majority attempts through the direct ballot to take away something the minority obtained through the representative system." Bell, supra note 57, at 26.
198. For analysis of the implications of the marches, see Kevin R. Johnson & Bill Ong Hing, The Immigrant Rights Marches of 2006 and the Prospects for a New Civil Rights Movement, 42 HARV. C.R.-C.L. L. REV. 99 (2007); Sylvia R. Lazos Vargas, The Immigrant Rights Marches (Las Marchas): Did the "Gigante " (Giant) Wake Up or Does It Still Sleep Tonight?, 7 NEV. L.J. 780 (2007).