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Alien Nation Review:  Michigan Law Review, May 1996 - (Part 2)

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V. THE NATIONAL SELF-DEFINITION PROJECT

Constitutional immigration law must acknowledge that immigration policy shapes racial and ethnic communities. The national self-definition model rightly shifts the focus away from the Haitians and Irish who want to immigrate to the Haitian-American and Irish-American citizens and permanent residents who already live here. This shift admittedly prefers members over those who want to join. Yet, this shift seems vital. National cohesion requires that Americans have faith that they have a role in choosing new Americans.

Brimelow contends that "multiculturalism" undermines the already difficult integration of immigrants. He views integration in racial or ethnic terms, and he believes that nonwhite immigration decreases national cohesion because nonwhites "assimilate" poorly (pp. 269-74). It is true that a society risks serious divisions if it admits immigrants without integrating them. In fact, many immigrants are skeptical of "multiculturalism" because they see it as a way to keep them distant and disenfranchised. Moreover, the integration of immigrants into the receiving society is a much more complex process than Brimelow acknowledges. Admission only begins the integration process. The bundle of rights that immigrants enjoy as they make the transition to citizenship is just as crucial, and while only the first generation of immigrants catches Brimelow's eye, the integration process takes longer.

Brimelow's solution to the national cohesion problem—to use immigration policy to make America more white—will splinter America like nothing else. If we admit or exclude immigrants on the basis of race, we are more likely to tolerate racial distinctions in the transition to citizenship and to tolerate the divided society that will result. While Brimelow rails against multiculturalism, his proposals foster a different kind of multiculturalism—white separatism.(119)

The national self-definition model will not necessarily insulate racial and ethnic groups from dilution over time. The effects of judicial review will vary. Often, I suspect, judicial review will leave intact the immigration decisions of the political branches, because judges will find no workable standards to guide their intervention. For example, persuasive proof of invidious race-based intent is often difficult to present in constitutional litigation.(120) Inquiries into legislative intent become especially complex when immigration law is written in nonracial language that has a disproportionate impact by race or ethnicity.(121) History shows us how immigration statutes can be drafted neutrally when the drafters intended to discriminate. For example, the 1924 Act barred Japanese immigrants through the apparently neutral exclusion of "aliens ineligible to citizenship."(122) Likewise, the diversity visa statute—though drafted in neutral terms(123)—was intended to increase the number of European immigrants.(124) Courts will need time to find workable approaches to the intent question in the immigration context, much as they currently struggle with it in the redistricting context.

Whether or not we need more judicial intervention, we do need a serious and comprehensive discussion about when it should occur. To propel that discussion, courts should add to the nascent body of constitutional immigration law by introducing a national self-definition model that focuses on the rights of citizens and permanent residents. This model, as it happens, will expose the constitutional flaws in Brimelow's proposals far more effectively than an immigrants' rights model can. And a national self-definition model will allow courts to begin a long overdue dialogue with the political branches on matters of race and ethnicity in immigration policy.

(1) . See Emma Lazarus, The New Colossus, in EMMA LAZARUS: SELECTIONS FROM HER POETRY AND PROSE 40, 41 (Morris U. Schappes ed., 1944) (poem written for Bartholdi Pedestal Fund in 1883, now inscribed on a plaque on the Statue of Liberty).

(2) . The book expands on Peter Brimelow, Time to Rethink Immigration? The Decline of Americanization of Immigrants, NATL. REV., June 22, 1992, at 30. See p. 3.

(3) . See, e.g., Peter H. Schuck, Alien Rumination, 105 YALE L.J. 1963 (1996); Michael Lind, American by Invitation, THE NEW YORKER, Apr. 24, 1995, at 107-13; Jack Miles, The Coming Immigration Debate, THE ATLANTIC MONTHLY, Apr. 1995, at 130-40; Samuel Francis, Hercules and the Hydra, NATL. REV., May 1, 1995, at 76-77 (book review); Francis Fukuyama, Culture Vulture, NATL. REV., May 1, 1995, at 77-78 (book review); Nathan Glazer, What He Should Have Said, NATL. REV., May 1, 1995, at 78-79 (book review); Glenn Loury, Terms of Engagement, NATL. REV., May 1, 1995, at 79-80 (book review); Peter Skerry, Closing the Door, COMMENTARY, May 1995, at 70-73 (book review).

(4) . See Statement of Peter Brimelow, House Subcommittee on Immigration and Claims, 1995 WL 10386204 (May 17, 1995).

(5) . See, e.g., H.R. 2202, 104th Cong., 1st Sess. (1995) (Smith, R-Tex), S. 1394, 104th Cong., 1st Sess. (1995) (Simpson, R-Wy).

(6) . See GEORGE J. BORJAS, FRIENDS OR STRANGERS: THE IMPACT OF IMMIGRANTS ON THE U.S. ECONOMY 79-97 (1990).

(7) . P. 59; see also p. 197 ("Remember—practically until the Civil War, white Protestants were America.").

(8) . P. 209 (emphasis omitted). Brimelow relies on passages in the Declaration of Independence and the Federalist Papers that he sees as assuming an American ethnic and cultural homogeneity. P. 210.

(9) . Pp. 66-67. Here Brimelow refers to the Act of March 26, 1790, ch. 3, 1 Stat. 103.

(10) . P. 57; see also p. 129 (making same statement).

(11) . P. 264; see also p. 232 (posing The National Question).

(12) . See pp. 129-33. It is thus fitting that Brimelow's book shares its title with the movie, Alien Nation, starring James Caan and Mandy Patinkin, about the unsuccessful efforts to "assimilate" by "aliens" from outer space who land in California. I am grateful to Frank Wu for calling this to my attention.

(13) . See Immigration and Nationality Act Amendments of 1965, Pub. L. No. 89-236, 79 Stat. 911 (codified as amended in scattered sections of 8 U.S.C. [sections][sections] 1101-1351 (1995)).

(14) . See Lind, supra note 3, at 108 (quoting a 1921 GOOD HOUSEKEEPING article by then Vice President Coolidge).

(15) . See, e.g., Ian F. Haney-Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994); Fukuyama, supra note 3.

(16) . Brimelow acknowledges some of these uncertainties. See p. 67.

(17) . See pp. 273-74. For a similar point, see Schuck, supra note 3, at 1999 (citing Mary C. Waters, ETHNIC OPTIONS: CHOOSING IDENTITIES IN AMERICA 16-51 (1990). On the increasing number of "multiracial" Americans, see Deborah Ramirez, Multicultural Empowerment: It's Not Just Black and White Anymore, 47 STAN. L. REV. 957, 964-69 (1995).

(18) . See, e.g., MADISON GRANT, THE PASSING OF THE GREAT RACE 68-82 (1916); WILLIAM Z. RIPLEY, THE RACES OF EUROPE (1899). For background, see JOHN HIGHAM, STRANGERS IN THE LAND: PATTERNS OF AMERICAN NATIVISM 1860-1925, at 131-57 (2d ed. 1963).

(19) . Proposition 187 would deny most public services, including nonemergency medical services and public education, to undocumented aliens. It would also require certain government workers to verify the immigration status of persons with whom they come into contact and to report suspected undocumented aliens to enforcement agencies. Court injunctions have kept almost all of its provisions from taking effect; see League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 763 n.1 (C.D. Cal. 1995); Pedro A. v. Dawson, Case No. 965089 (Cal. Super. Ct., City & County of San Francisco, filed Nov. 9, 1994).

(20) . Lind, supra note 3, at 108.

(21) . See U.S. IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPT. OF JUSTICE, INS STATISTICAL YEARBOOK 27, Table 2 (1993).

(22) . See id. at 28.

(23) . See U.S. GENERAL ACCOUNTING OFFICE, ILLEGAL ALIENS: DESPITE DATA LIMITATIONS, CURRENT METHODS PROVIDE BETTER POPULATION ESTIMATES 46-57 (1993); ROBERT WARREN, ESTIMATES OF THE RESIDENT ILLEGAL ALIEN POPULATION: OCTOBER 1992, at 1, 4-10 (Immigration and Naturalization Service Statistics Division 1993).

(24) . See Gerald L. Neuman, The Lost Century of American Immigration Law (1776-1875), 93 COLUM. L. REV. 1833 (1993).

(25) . Act of March 3, 1875, ch. 141, 18 Stat. 477 (exclusion, repealed 1974). The only earlier federal statutes on the general subject of immigration were the Alien and Sedition Acts of 1798. See Act of June 25, 1798, ch. 58, [sections] 1, 1 Stat. 570, 571 (permitting the President to order any alien whom he judges "dangerous to the peace and safety of the United States" to leave the country without a hearing); Act of July 6, 1798, ch. 66, [sections] 1, 1 Stat. 577, 577 (permitting the President during war to apprehend, restrain, secure, and remove all enemy aliens without a hearing) (codified at 50 U.S.C. [sections][sections] 21-23).

(26) . See, e.g., Act of Aug. 3, 1882, ch. 376, 22 Stat. 214 (exclusion, repealed 1917); Act of Oct. 19, 1888, ch. 1210, 25 Stat. 566 (deportation, repealed 1917); Act of Mar. 3, 1891, ch. 551, 26 Stat. 1084, 1086 (exclusion and deportation, repealed 1917); Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898 (exclusion and deportation).

(27) . Act of May 19, 1921, ch. 8, [sections] 2(a), 42 Stat. 5 (repealed 1952).

(28) . See Immigration Act of 1924, ch. 190, [sections] 11(a), 43 Stat. 153, 159 (repealed 1952).

(29) . See E.P. HUTCHINSON, LEGISLATIVE HISTORY OF AMERICAN IMMIGRATION POLICY 1798-1965, at 484 (1981) (quoting H.R. REP. No. 350, 68th Cong., 1st Sess. 13-14 (1924)); John A. Scanlan, Immigration Law and the Illusion of Numerical Control, 36 U. MIAMI L. REV. 819, 826 n.31 (1982) (arguing that the baseline change was a deliberate effort to limit immigration from Southern and Eastern Europe).

(30) . See Immigration Act of 1924, ch. 190, [sections] 11(b), 43 Stat. 153, 159.

(31) . For a useful summary, see Scanlan, supra note 29, at 823 nn.12-13.

(32) . See Act of May 6, 1882, ch. 126, 22 Stat. 58; Act of July 5, 1884, ch. 220, 23 Stat. 115; Act of May 5, 1892, ch. 60, 27 Stat. 25.

(33) . See generally, ROGER DANIELS, ASIAN AMERICA: CHINESE AND JAPANESE IN THE UNITED STATES SINCE 1850, at 123-28 (1988).

(34) . Japanese exclusion was not accomplished by expressly naming Japan, but through a neutral phrase—"aliens ineligible to citizenship"—that was clearly intended to have that effect. Immigration Act of 1924, ch. 190, [sections] 13(c), 43 Stat. 153, 162 (referring to "aliens ineligible to citizenship"). On the intent of the phrase, see RONALD TAKAKI, STRANGERS FROM A DIFFERENT SHORE 208-10 (1989).

(35) . Immigration Act of 1917, ch. 29, [sections] 3, 39 Stat. 874, 875-76. See BILL ONG HING, MAKING AND REMAKING ASIAN AMERICA THROUGH IMMIGRATION POLICY, 1850-1990, at 32 (1993).

(36) . Immigration Act of 1924, ch. 190, [sections] 11(d), 43 Stat. 153, 159.

(37) . See Act of March 26, 1790, ch. 3, 1 Stat. 103.

(38) . Act of July 14, 1870, ch. 254, [sections] 7, 16 Stat. 254, 256.

(39) . See, e.g., United States v. Thind, 261 U.S. 204 (1923) (Asian Indians); Ozawa v. United States, 260 U.S. 178 (1922) (Japanese).

(40) . Nationality Act of 1940, ch. 876, 54 Stat. 1137, 1140.

(41) . See Act of Dec. 17, 1943, ch. 344, 57 Stat. 600.

(42) . See Immigration and Nationality Act, ch. 477, 66 Stat. 163 (1952).

(43) . See Immigration Act of 1990, Pub. L. No. 101-649, [sections][sections] 101, 102, 104 Stat. 4978, 4980-85; Immigration and Nationality Act Amendments of 1986, Pub. L. No. 99-653, [sections] 4, 100 Stat. 3655, 3655; Act of Oct. 5, 1978, Pub. L. No. 95-412, [sections] 3, 92 Stat. 907, 907.

(44) . See Scanlan, supra note 29, at 830 (citing CONG. RESEARCH SERV., U.S. IMMIGRATION LAW AND POLICY, 1952-1979, at 54 (1979), quoting H. REP. NO. 745, 89th Cong., 1st Sess. 48 (1965)). In the process of legislative compromise, the Western Hemisphere limit was "a price to be paid for abolishing the national origins systems." SELECT COMMISSION ON IMMIGRATION AND REFUGEE POLICY, U.S. IMMIGRATION POLICY AND THE NATIONAL INTEREST (Staff Report) 208 (1981).

(45) . Schuck points out this "delicious irony." See Schuck, supra note 3, at 1975.

(46) . See Immigration and Nationality Act of 1965, Pub. L. No. 89-236, [sections] 21(e), 79 Stat. 911, 920-21. Legislation in 1978 combined the Eastern and Western Hemisphere ceilings into a single worldwide ceiling. See Act of Oct. 5, 1978, Pub. L. No. 95-412, [sections] 1, 92 Stat. 907, 907.

(47) . Under the prevailing view, the supporters of the 1965 Act in Congress did not predict the dramatic increase in Asian immigration that followed. See, e.g., ROGER DANIELS, COMING TO AMERICA: A HISTORY OF IMMIGRATION AND ETHNICITY IN AMERICAN LIFE 338-44 (1990); HING, supra note 35, at 39-41; DAVID M. REIMERS, STILL THE GOLDEN DOOR: THE THIRD WORLD COMES TO AMERICA 74-91 (2d ed. 1992). See generally HUTCHINSON, supra note 29, at 366-79. For persuasive observations to the contrary, see Gabriel J. Chin, The Civil Rights Revolution Comes to Immigration Law: A New Look at the Immigration and Nationality Act of 1965, 75 N.C. L. REV. (forthcoming 1996) (manuscript on file with author).

(48) . Brimelow characterizes this change as "de facto discrimination against Europe." P. 79. Great Britain, Northern Ireland, Germany, and Ireland received over two-thirds of the 158,000 immigrant visas authorized annually under the 1952 Act. In fact, large numbers of immigrant visas went unused each year because of insufficient demand. See Thomas J. Scully, Is the Door Open Again?—A Survey of Our New Immigration Law, 13 UCLA L. REV. 227, 229 (1966).

(49) . See, e.g., REIMERS, supra note 47, at 83.

(50) . "The 1965 Immigration Act, and its amplifications in 1986 and 1990, has been a disaster and must be repealed." P. 258.

(51) . Cf. Immigration and Nationality Act, ch. 477, 66 Stat. 163 (1952) (eliminating racial qualifications for citizenship); id. at [sections][sections] 202(b)-(c), 66 Stat. at 177-78 (ending Japanese exclusion); Act of Dec. 17, 1943, ch. 344, 57 Stat. 600 (repealing Chinese exclusion).

(52) . See Immigration and Nationality Act, ch. 477, [sections][sections] 202(b)-(c), 66 Stat. 163, 177-78. The 2,000-visa limit was eliminated in 1961. See Act of Sept. 26, 1961, [sections] 9, Pub. L. No. 87-301, 75 Stat. 650, 654.

(53) . See The President's Veto Message, reprinted in 6 OSCAR M. TRELLES & JAMES F. BAILEY, IMMIGRATION AND NATIONALITY ACTS: LEGISLATIVE HISTORIES AND RELATED DOCUMENTS 275 (1979) (vetoing the bill to revise the laws relating to immigration and nationality, and for other purposes).

(54) . Id. at 277.

(55) . Id. at 278.

(56) . See PRESIDENT'S COMMISSION ON IMMIGRATION AND NATURALIZATION, WHOM WE SHALL WELCOME 52-56 (1953); see also Harry N. Rosenfield, The Prospects for Immigration Amendments, 21 LAW & CONTEMP. PROBS. 401, 409-18 (1956) (discussing the popular opposition to the national origins system).

(57) . Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 28 U.S.C. and 42 U.S.C.).

(58) . Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. s. 1973-1973bb-1 (1988)).

(59) . See, e.g., Statement of W. Willard Wirtz, Secretary of Labor (Mar. 18, 1965), in 10 OSCAR M. TRELLES & JAMES F. BAILEY, IMMIGRATION AND NATIONALITY ACTS: LEGISLATIVE HISTORIES AND RELATED DOCUMENTS 114 (1979) (stating that all three proposals "write into our laws the essential principle of the free society: that we hold each other in equal respect, without false prejudice and without one member's using his own image to measure his neighbor's rights"); Statement of Rep. Annunzio (Apr. 6, 1965), id. at 162, 163 ("It seems strange to me that at a time when the Congress is taking vigorous action to insure that no American will be denied their full privilege of citizenship because of race, we still maintain an immigration policy which relegates millions of other Americans to second-class citizenship because of national origin."); see also Letter From the President to the Speaker of the House, 111 CONG. REC. 20,996 (daily ed. Aug. 25, 1965).

(60) . See, e.g., Statement of Dean Rusk, Secretary of State (March 11, 1965), in 10 TRELLES & BAILEY, supra note 59, at 88 ("[W]e are concerned to see that our immigration laws reflect our real character and objectives because what other people think about us plays an important role in the achievement of our foreign policies."); Statement of Rep. de la Garza (Apr. 6, 1965), id. at 191, 192 ("At a time when the true spirit and philosophy of the United States must be made evident to the world, we can no longer afford to have on our statute books any reference to the fact that people are welcome to this country depending upon their race or ethnic origin."); Statement of Rep. Fino (Apr. 6, 1965), id. at 193, 195 ("Isn't it embarrassing for a country that in 1964 passed the Civil Rights Act as an affirmation of the fact that all men were to be treated equal under the law to retain an immigration law that says in fact that all men from other countries were not created equal?; [the bill] will bring our immigration policy into line with our foreign policy."). On the broader connection between the civil rights movement and foreign policy, see Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 STAN. L. REV. 61 (1988).

(61) . Remarks at the Signing of the Immigration Bill, Liberty Island, New York, in PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: LYNDON B. JOHNSON 1037, 1038-39 (1966). Brimelow himself notes the link. See P. 76; see also Vernon M. Briggs, Jr., MASS IMMIGRATION AND THE NATIONAL INTEREST 104 (1992); DANIELS, supra note 47, at 338.

Professor Peter Schuck similarly notes the connection between the 1965 Act and domestic civil rights legislation as part of his analysis of the stresses that immigration places on the traditional civil rights coalition. Peter H. Schuck, The New Immigration and the Old Civil Rights, 15 AMERICAN PROSPECT 102, 103 ("This law was in fact a momentous civil rights victory, extending the notion of equal treatment beyond U.S. borders to national and ethnic groups traditionally disfavored by our immigration laws. That it also contributed to the coalition's future decline is an arresting political irony.").

(62) . Act of Mar. 17, 1980, Pub. L. No. 96-212, 94 Stat. 102.

(63) . See id. [sections] 101(b) (providing "comprehensive and uniform provisions for the effective resettlement and absorption of those refugees who are admitted"). See also Arthur C. Helton, Political Asylum Under the 1980 Refugee Act: An Unfulfilled Promise, 17 U. MICH. J.L. REF. 243, 250-62 (1984).

(64) . Brimelow asks, "[W]hat was wrong with America as it existed in 1965?" P. 274. In spite of his disdain for the Voting Rights Act of 1965, Brimelow argues in defense of the America of 1965 that at that time "the federal government was intervening massively throughout the South to prevent voting fraud." P. 106. Elsewhere, Brimelow dodges questions about America before 1965 by saying, "[m]aybe America should not have been like this. But it was." P. 15.

(65) . See KITTY CALAVITA, INSIDE THE STATE: THE BRACERO PROGRAM, IMMIGRATION AND THE I.N.S. 54 (1992); JUAN RAMON GARCIA, OPERATION WETBACK: THE MASS DEPORTATION OF MEXICAN UNDOCUMENTED WORKERS IN 1954, at 194-96 (1980).

(66) . See Interview with SAN DIEGO UNION-TRIBUNE, at G5 (June 4, 1995); see also pp. 34-35, 260; Peter Brimelow, COMMENTARY NOV. 1995, at 34, 35.

(67) . The Immigration and Naturalization Service (INS) recently settled a class action that alleged that its Border Patrol relied solely on Hispanic appearance to stop, question, and detain students, graduates, and staff of an El Paso, Texas, high school located next to the U.S.-Mexico border. After a preliminary injunction, the INS agreed in the settlement to provide the public with information and assistance in filing complaints against the Border Patrol. See Murillo v. Musegades, 809 F. Supp. 487 (W.D. Tex. 1992) (preliminary injunction), digested at 71 INTERPRETER RELEASES 987 (1994).

(68) . See generally Daniel H. Foote, Japan's "Foreign Workers" Policy: A View From the United States, 7 GEO. IMMIGR. L.J. 707, 711-12 (1993).

(69) . See Hiroshi Motomura, Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation, 100 YALE L.J. 545, 560-64 (1990) [hereinafter Motomura, Phantom Norms].

(70) . For a succinct analysis of the current state of the doctrine, see Stephen H. Legomsky, Ten More Years of Plenary Power: Immigration, Congress, and the Courts, 22 HAST. CONST. L.Q. 925 (1995).

(71) . See Hiroshi Motomura, The Curious Evolution of Immigration Law: Procedural Surrogates for Substantive Constitutional Rights, 92 COLUM. L. REV. 1625 (1992) [hereinafter Motomura, Procedural Surrogates].

(72) . 532 F.2d 268 (2d Cir. 1976).

(73) . American Baptist Churches v. Thornburgh, 760 F. Supp. 796, 799-800 (N.D. Cal. 1991). See also American Baptist Churches v. Meese, 712 F. Supp. 756, 772 (N.D. Cal. 1989) ("[G]overnmental policy that makes nationality-based distinctions should at least be reviewed for equal protection violations.").

(74) . See, e.g., Orantes-Hernandez v. Meese, 685 F. Supp. 1488 (C.D. Cal. 1988) (permanent injunction), affd. sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990) (affirmed on subconstitutional grounds only); Orantes-Hernandez v. Smith, 541 F. Supp. 351 (C.D. Cal. 1982) (preliminary injunction). For a fuller discussion, see Motomura, Procedural Surrogates, supra note 71, at 1673-79.

(75) . 472 U.S. 846 (1985); see Motomura, Phantom Norms, supra note 69, at 587-93.

(76) . See, e.g., Aristide Renounces Treaty Allowing U.S. to Return Haitians, 71 INTERPRETER RELEASES 481, 483 (1994) (reporting on a news conference held by the Congressional Black Caucus and other civil rights organizations to denounce the interdiction and return policy as "racist"); Malissia Lennox, Note, Refugees, Racism, and Reparations: A Critique of the United States' Haitian Immigration Policy, 45 STAN. L. REV. 687, 714-23 (1993).

(77) . See "A Slow-Motion Mariel": Cubans (and Haitians) Take to Sea, 71 INTERPRETER RELEASES 1091, 1091 (1994).

(78) . See generally INS Announces Second Cuban Migration Program, 73 INTERPRETER RELEASES 319 (1996); REFUGEE REP. No. 9, (Sept. 29, 1995); State Dept. Implements Cuban Migration Agreement, 71 INTERPRETER RELEASES 1409 (1994); U.S., Cuba Reach Important Migration Agreement, 71 INTERPRETER RELEASES 1213, 1236-37 (1994).

(79) . See Stephen H. Legomsky, Immigration, Equality, and Diversity, 31 COLUM. J. TRANSNATL. L. 319, 332-33 (1993) [hereinafter Legomsky, Diversity].

(80) . See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976).

(81) . Challengers might argue that a disparate impact plus a showing of past discrimination, presumably in the form of past immigration laws, satisfy the "intent" requirement. Cf. Daniel R. Ortiz, The Myth of Intent in Equal Protection, 41 STAN. L. REV. 1105, 1126-31 (1989) (describing the court's acceptance of this method of proving intent in voting rights cases).

(82) . Brief of the National Association for the Advancement of Colored People, Transafrica, and the Congressional Black Caucus as Amici Curiae in Support of Respondents 11, in Sale v. Haitian Ctrs. Council, Inc., 113 S. Ct. 2549 (1993) (No. 92-344); see also Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 451 (S.D. Fla. 1980) (concluding that the INS actions toward Haitians "constitute impermissible discrimination on the basis of national origin" but characterizing the racial basis for the policy as merely "a possible underlying reason"), affd. on other grounds as modified sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982). But see Louis v. Nelson, 544 F. Supp. 973, 1001-02 (S.D. Fla. 1982) (finding that the plaintiffs had not shown intentional discrimination based on national origin), affd. in part and revd. in part on other grounds en banc sub nom. Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984), affd. on other ground, 472 U.S. 846 (1985).

(83) . P. 5 (emphasis omitted); see also pp. 103-04, 242-43.

(84) . See, e.g., Sandra L. Jamison, Proposition 187: The United States May be Jeopardizing its International Treaty Obligations, 24 DENV. J. INTL. J. & POLY. 229 (1995); Stephen Knight, Note, Proposition 187 and International Human Rights Law: Illegal Discrimination in the Right to Education, 19 HAST. INTL. & COMP. L. REV. 183 (1995); cf. Stephen A. Plass, The Foreign Amici Dilemma, 1995 B.Y.U. L. Rev. 1189, 1211-15 (discussing a foreign amicus brief filed in support of Haitian asylum seekers).

(85) . See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-91 (1952); Fong Yue Ting v. United States, 149 U.S. 698 (1893).

(86) . See, e.g., Legomsky, Diversity, supra note 79, at 335 (urging us to see immigrants as "individual human beings, to be judged according to their individual needs and merits"); Michael Scaperlanda, Polishing the Tarnished Golden Door, 1993 WIS. L. REV. 965, 970-71 (noting that the traditional sovereignty-based plenary power doctrine was based on the now disfavored view that "persons were objects, not subjects, in international law") (emphasis omitted).

(87) . On the elusive distinction between immigration law and alienage law, see Linda S. Bosniak, Membership, Equality, and the Difference That Alienage Makes, 69 N.Y.U. L. REV. 1047 (1994); Hiroshi Motomura, Immigration and Alienage, Federalism and Proposition 187, 35 VA. J. INTL. L. 201, 203 (1994) [hereinafter Motomura, Immigration and Alienage].

(88) . See, e.g., Plyler v. Doe, 457 U.S. 202 (1982); Graham v. Richardson, 403 U.S. 365 (1971). The tradition to which these decisions belong began with Yick Wo v. Hopkins, 118 U.S. 356 (1886). See Motomura, Phantom Norms, supra note 69, at 565-67, 583-87; Motomura, Procedural Surrogates, supra note 71, at 1647-48, 1688-92.

(89) . For a similar suggestion that we focus on "citizens' rights," see Frank H. Wu, The Limits of Borders: A Moderate Proposal for Immigration Reform, STAN. L. & POLY. REV. (forthcoming 1996) (manuscript on file with author).

(90) . See Motomura, Immigration and Alienage, supra note 87, at 212.

(91) . My definition of member is not crucial to the national self-definition model that I propose. One might define member more broadly (for example, to include undocumented aliens) or narrowly (for example, to exclude permanent residents) and still accept the notion that participation in the selection of new members is a right of membership. See generally T. Alexander Aleinikoff, The Tightening Circle of Membership, 22 HAST. CONST. L.Q. 915 (1995).

(92) . Here I build on Motomura, Immigration and Alienage, supra note 87, at 203; Motomura, Procedural Surrogates, supra note 71, at 1704. Readers will discern my debt to MICHAEL WALZER, SPHERES OF JUSTICE 35-42 (1983), and BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE LIBERAL STATE 89-95 (1980).

(93) . Philip Kasinitz, Closing the Gates, NEWSDAY, (Apr. 23, 1995), at 32 (reviewing Alien Nation).

(94) . "I'd like to say a word for the nativists." P. 12. For a perceptive analysis of the concept of "nativism," including Brimelow's use of the term, see Linda S. Bosniak, "Nativism" the Concept: Some Reflections, in IMMIGRANTS OUT! THE NEW NATIVISM AND THE ANTI-IMMIGRANT IMPULSE IN THE UNITED STATES (Juan Perea ed., forthcoming 1996) (manuscript on file with author).

(95) . For more on this aspect of the national self-definition model, see Motomura, Immigration and Alienage, supra note 87, at 206-11, 214-16.

(96) . Gerald L. Neuman, Aliens As Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine, 42 UCLA L. REV. 1425, 1436 (1995).

(97) . If national self-definition is a uniquely federal enterprise, federalism in immigration matters may be quite different from federalism generally.

(98) . While Brimelow seems to endorse restrictionist state measures such as California's Proposition 187 (pp. 259-62, 263), I suspect that he would prefer federal laws that would accomplish the same goals nationwide.

(99) . Although Brimelow sometimes seems to see that citizens' rights are at stake, he readily dismisses them. See pp. 105-06, 119-20.

(100) . 408 U.S. 753, 765-70 (1972).

(101) . 430 U.S. 787 (1977).

(102) . Mandel, 408 U.S. at 767-69; Fiallo, 430 U.S. at 794-95.

(103) . See, e.g., Sale v. Haitian Centers Council, Inc., 113 S. Ct. 2549 (1993); Haitian Refugee Center v. Baker, 953 F.2d 1498 (11th Cir.), cert. denied, 502 U.S. 1122 (1992).

(104) . See also Ukrainian-American Bar Assn. v. Baker, 893 F.2d 1374 (D.C. Cir. 1990) (discussing the claim by the Ukranian-American Bar Association that the government violated its First Amendment right to associate by refusing to inform aliens of its offer to free legal counsel); cf. Ben-Issa v. Reagan, 645 F. Supp. 1556, 1562 (W.D. Mich. 1986) (finding that a citizen's constitutional rights were not implicated by the denial of visa to her alien husband). For a more favorable response to this sort of argument, see Manwani v. United States Dept. of Justice, 736 F. Supp. 1367, 1379-82 (W.D.N.C. 1990).

(105) . Cf. Northeastern Florida Chapter of the Associated General Contractors v. Jacksonville, 508 U.S. 656, 666 (1993) (noting that, in equal protection cases, injury in fact "is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit").

(106) . See, e.g., Shaw v. Reno, 113 S. Ct. 2816, 2824 (1993) (asserting that racial classifications "threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility"); Brown v. Board of Education, 347 U.S. 483, 494 (1954) (asserting that racially segregated schools convey to blacks "a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone"). For an illuminating discussion of stigma as a constitutional concept, see Jerry Kang, Negative Action Against Asian-Americans: The Internal Instability of Dworkin's Defense of Affirmative Action, 31 HARV. C.R.-C.L. L. REV. 1, 21-36 (1996).

(107) . Louis L. Jaffe, The Philosophy of Our Immigration Law, 21 LAW & CONTEMP. PROBS. 358, 358 (1956).

(108) . Gerald M. Rosberg, The Protection of Aliens from Discriminatory Treatment by the National Government, 1977 SUP. CT. REV. 275, 327.

(109) . Id. See also id. at 326 ("[A] classification that distinguishes among citizens on grounds that are disfavored or suspect must receive special scrutiny. Thus, if Congress were to decree that white citizens can confer an immigration preference on their alien relatives but black citizens cannot, one can hardly believe that the Court would uphold the classification.")

(110) . As Professor Rosberg notes:

Many aliens are indistinguishable from citizens, and discrimination against them may involve little stigma. By contrast, discrimination against the foreign-born or against persons perceived as foreign because of their ethnic or racial background will inevitably produce much greater stigma. But at this point one has moved from discrimination on the grounds of alienage to discrimination on the grounds of race or national origin, and there strict scrutiny is obviously required.

Id. at 304.

(111) . See generally HING, supra note 35, at 190. ("Immigration and refugee policies have influenced gender ratios, where people live, how people live, the jobs they have, their income, as well as personal identity.")

(112) . See T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. REV. 588, 620 (1993) ("Unlike employment decisions or academic admissions, redistricting does not readily admit a neutral baseline against which `bizarrely' shaped districts can be measured.").

(113) . Rosberg, supra note 108, at 324-25; cf. City of Memphis v. Greene, 451 U.S. 100, 126 (1981) (upholding a street closure allegedly intended to separate a predominantly black neighborhood from a predominantly white one; "[p]roper management of the flow of vehicular traffic within a city requires the accommodation of a variety of conflicting interests").

(114) . Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995).

(115) . 115 S. Ct. at 2486 (quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602 (1990) (O'Connor, J., dissenting)).

(116) . See Act of Nov. 29, 1990, Pub. L. No. 101-649, [sections] 132, 104 Stat. 4978, 5000; Act of Nov. 15, 1988, Pub. L. No. 100-658, [sections] 3, 102 Stat. 3908, 3908-09; Immigration and Reform Act of 1986, Pub. L. No. 99-603, [sections] 314, 100 Stat. 3359, 3439. On the desire to restore European, and particularly Irish, immigration, see 136 CONG. REC. E3118 (1990) (remarks of Rep. Donnelly); Reform of Legal Immigration: Hearings on H.R. 5115 and S. 2104 Before the Subcomm. on Immigration, Refugees, and International Law of the House Comm. on the Judiciary, 100th Cong., 2d Sess. 269, 542 (1988) (statements of Thomas J. Flately and Donald Martin); H.R. REP. 100-1038, 100th Cong., 2d Sess. (1988); see also Irish-Americans Praise New Immigration Bill, N.Y. TIMES, Oct. 7, 1990, at 47.

(117) . See Immigration Act of 1990, Pub. L. No. 101-649, [sections] 132(c), 104 Stat. 4978, 5000 (allocating at least 40% of the diversity visas to nationals of the foreign state that received the most visas under the previous version of the diversity visa program).

(118) . See generally THOMAS ALEXANDER ALEINIKOFF, DAVID A. MARTIN, & HIROSHI MOTOMURA, IMMIGRATION: PROCESS AND POLICY 129-31 (3d ed. 1995); Legomsky, Diversity, supra note 79, at 329-33. See also 61 FED. REG. 2862, 2862-63 (1996) (registration notice for Diversity Immigrant Visa Program).

(119) . See p. 124 ("[T]he evidence that multiracial societies work is—what shall we say?—not very encouraging.").

(120) . See the discussion of the "intent" requirement supra notes 80-81.

(121) . See generally Kevin R. Johnson, An Essay on Immigration Politics, Popular Democracy, and California's Proposition 187: The Political Relevance and Legal Irrelevance of Race, 70 WASH. L. REV. 629 (1995) (noting the difficulties in proving a discriminatory intent of the drafters of California Proposition 187). The limits of an intent-based equal protection doctrine seem particularly evident in the immigration field. See generally Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 STAN. L. REV. 317 (1987).

(122) . See supra note 34.

(123) . See Immigration and Nationality Act [sections] 203(c), 8 U.S.C. [sections] 1153(c).

(124) . See sources cited supra note 116; cf. Wu, supra note 89 (discussing the proposed application of constitutional limits to immigration laws that in operation focus on race as opposed to alienage); Jan C. Ting, "Other Than a Chinaman": How U.S. Immigration Law Resulted From and Still Reflects a Policy of Excluding and Restricting Asian Immigration, 4 TEMPLE POL. & CIV. RTS. L. REV. 301, 301 (1995) (discussing "the last vestiges of race-biased immigration law and practice").

Note: (*) Professor of Law, University of Colorado School of Law. B.A. 1974, Yale University; J.D. 1978, University of California, Berkeley.—Ed. For their generous help (but not necessarily their agreement), I owe thanks to Joseph Albert, Linda Bosniak, Curtis Bradley, Gabriel J. Chin, Richard Collins, Philip Frickey, Daniel Horne, Kevin Johnson, Daniel Kowalski, Carol Lehman, Kathleen Maness, Kevin Reitz, John Scanlan, Peter Schuck, David Sippel, Erica Tarpey, Nadine Wettstein, Frank Wu, participants in the Immigration Law Workshop at the University of Colorado School of Law, and participants in the Immigration Law Workshop in Albuquerque, New Mexico, June 2-4, 1994, where I first ventured forth with the central ideas discussed here. I am also indebted to Melissa Decker and Judith Smith for excellent research assistance and numerous valuable suggestions on earlier drafts.

Review Grade: D