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42 UCLA L. Rev. 1425 (1994-1995)
Aliens as Outlaws: Government Services, Proposition 187, and the Structure of Equal Protection Doctrine

handle is hein.journals/uclalr42 and id is 1439 raw text is: ALIENS AS OUTLAWS: GOVERNMENT SERVICES, PROPOSITION 187, AND THE STRUCTURE OF EQUAL PROTECTION DOCTRINE Gerald L. Neuman* INTRODUCTION .................................... ............ 1425 I. ALIENAGE DISCRIMINATION AND PERMANENT REsn)TS ............ 1426 A.' The Claim of Freedom to Discriminate ..................... 1427 B. The Objection to Complexity ............................. 1430 1. The Objection Is Factually Mistaken ..................... 1431 2. The Objection Is Theoretically Misguided ................. 1434 3. The Need for Judicial Protection Against State Alienage Discrimination .............................. 1436 II. ALIENS AS OUTLAWS ....................................... 1440 CONCLUSION . ................................................ 1452 INTRODUCTION State exclusion of aliens, legal or illegal, from government benefits raises numerous issues of policy, law and justice. I will focus here on one particular aspect of this topic: the consistency of state benefit exclusions with the Equal Protection Clause of the Fourteenth Amendment. Califor- nia's Proposition 187 has given that problem immediate practical urgency. The problem also possesses great theoretical significance, implicating the correlation of state power and state responsibility, the irreducible respect owed to every human being, and the relationship between constitutional principle and constitutional doctrine. The position I will take is conserva- tive in two respects. First, I will argue that the state is not constitutionally obliged to provide illegal aliens with all the benefits that it provides citizens. Second, I will defend the status quo in the case law. Specifically, I contend that Plyler v. Doe' and Graham v. Richardson2 were correctly decided. I will also argue for a limited extension of Plyler that forbids the * Professor of Law, Columbia University. I owe particular thanks to Ed Baker, Richard Briffault, Kevin Johnson, and Henry Monaghan. 1. 457 U.S. 202 (1982) (invalidating state exclusion of undocumented alien children from free public education as violation of equal protection). 2. 403 U.S. 365 (1971) (invalidating state denial of welfare benefits to permanent resident aliens as violation of equal protection). 1425

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