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Volume 76, Number 2

May 2001

Laboratories of Bigotry? Devolution of the Immigration Power, Equal Protection, and Federalism

Michael J. Wishnie

Assistant Professor of Clinical Law, New York University. B.A., 1987; J.D., 1993, Yale University.

In this Article, Professor Michael Wishnie addresses the current pressing problem of denial of benefits to legal immigrants under the 1996 Welfare Reform Act in the context of a deeper inquiry into the very heart of immigration law: From where does the federal government derive the power to regulate its borders? Can Congress devolve this power to the states? Looking deeply into jurisprudence and textual sources, as well as history, he ascertains that this authority always has been exclusively federal and that to permit devolution would be to contradict the entire notion of sovereignty. Thus, Professor Wishnie concludes that any devolution of authority over immigration to the states, such as that contained in the 1996 welfare reforms, may not receive the judicial deference traditionally granted to federal immigration law. Instead, any state exercise in the immigration arena, even pursuant to Congress’s explicit approval, must be evaluated under thirty years of precedent subjecting state discrimination against permanent resident aliens to heightened scrutiny.