Volume 22, Issue 4
Volume 22, Number 4 Summer 1995
Symposium on Constitutional Problems in
State and Federal Immigration Law
OPENING REMARKS
The Tightening Circle of Membership (page 915)
By T. Alexander Aleinikoff
ESSAY
Ten More Years of Plenary Power: Immigration, Congress, and the Courts (page 925)
By Stephen H. Legomsky
The Supreme Court has long applied a doctrine of special judicial deference to Congress in the area of immigration regulation. The precise degree of that special deference to plenary congressional power has varied by context and era, and continues to develop today. During the past decade, the author has published two companion pieces which study the history, theory, soundness, politics, and likely future course of the plenary power doctrine. In this essay, the author summarizes the conclusions reached in those two prior publications, synthesizes the judicial trends that have developed since that time, and revises his predictions in light of the current patterns.
ARTICLES
State Immigration Laws and Fe deral Supremacy (page 939)
By Karl Manheim
The current debate over the meaning of American federalism bears a striking resemblance to our founding struggle over states' rights. One stage where federalism continues to play out is the regulation of aliens and immigration. For most of our first century, immigration control was a state prerogative. But by the late nineteenth century, the Supreme Court equated immigration with foreign policy, thereby recognizing plenary and exclusive federal authority. This exclusivity operates to negate state power by both standard preemption doctrine and constitutional preclusion. In particular, preclusion forecloses state immigration laws even where Congress is silent since states have never possessed (nor do they "retain") power over foreign affairs.
Despite this proscription, states continue to regulate aliens and immigration, often in response to xenophobic and nativist pressures. The best modern example is California's Proposition 187, which was designed to fill perceived gaps in federal immigration policy. Yet, no matter how urgent immigration laws are thought to be, they are beyond state power. This article describes the history and practice of state immigration laws and explores their constitutionality.
Storytelling Out of School: Undocumented College Residency, Race, and Reaction (page 1019)
By Michael A. Olivas
The recent wave of anti-immigrant sentiment has resulted in a revisitation of the rights of undocumented alien students. While each state has its own residency rules, a few states, including California, have precluded long-term undocumented alien students from establishing in-state residency for postsecondary tuition purposes. As a result, in most cases, students who are academically qualified to attend the state's institutions, whose only home is and has been within the state, and who otherwise function as full participants in the state's economy, are barred from attending the state's public institutions.
This article examines the legal and social implications of preventing this section of our society from receiving postsecondary education. The author argues that the application of Supreme Court case law prohibits states from denying these students in-state tuition solely because they are undocumented. After analyzing the Supreme Court precedent and recent cases in California, the article concludes that one California court has reached the correct result: the author argues that the court in Leticia "A" v. Board of Regents of the University of California correctly applied immigration law to student residency issues and held that the State's related Education statutes were unconstitutional. Finally, the author argues that, states receive a net benefit from this group of individuals and that, therefore, precluding their incorporation into California society through higher education is a foolishly short-sighted policy.
Detained Aliens Challenging Conditions of Confinement and the Porous Border of the Plenary Power Doctrine (page 1087)
By Margaret H. Taylor
Serious problems are endemic to the conditions at INS detention facilities. Some detainees are crowded into understaffed INS detention centers. Others are shuttled off to local jails or private facilities, where the INS seldom inquires about their treatment and they are sometimes subjected to inhumane conditions. Attempts of detained aliens to challenge these conditions under the Due Process Clause generally have been thwarted. This article documents the unconscious evolution of a standard requiring detained aliens to allege "malicious infliction of cruel treatment" or "gross physical abuse" in stating a viable due process claim. This standard provides an incomplete measure of constitutional protection, demonstrating that the plenary power doctrine is not confined to immigration law, but rather seeps out to infect claims normally governed by the aliens' rights tradition.