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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?