St. Mary's Law Journal


The hostile environment in the United States toward immigrants, as indicated by the Welfare Reform Act and Proposition 187, calls for a more meaningful judicial review of laws affecting immigrants. Although subjecting the federal government’s actions regarding immigrants to heightened review might seem to be a radical step, this Comment will explain why such a move is necessary. Part II discusses historical justifications for subjecting state and federal laws affecting immigrants to different levels of scrutiny under the Equal Protection Clause. Part III presents arguments for labeling immigrants a “suspect” class. Part IV considers the constitutionality of the Welfare Reform Act under strict scrutiny review and concludes with a proposal that future federal immigration laws such as the Welfare Reform Act be subject to heightened review. Even though the Supreme Court labeled legal immigrants a “suspect class” in the context of state laws, the Court has never afforded immigrants protection from federal laws due to its interpretation of the plenary power doctrine. At the time of its inception, the plenary power doctrine applied to laws implicating the foreign policy of the United States. Over time, however, it grew into a broad governmental interest which prohibits the Court from performing its role of judicial review. The Court should now recognize the purpose behind the plenary power doctrine: protecting the foreign policy of the nation. Application of heightened review standard would protect legal immigrants from discriminatory federal laws and preserve the purpose of the plenary power doctrine. Only by subjecting federal laws affecting immigrants to strict scrutiny will all “persons” finally be protected under the Equal Protection Clause.


St. Mary's University School of Law