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UC Davis Law Review




In 1994, California voters went to the polls to pass Proposition 187, a measure designed to deter unauthorized immigration by denying a range of public benefits to the undocumented. Twenty-five years later, undocumented immigration remains a deeply polarizing issue in our country. But if the political discourse seems similar, the civil rights toolkit is not. In an earlier era, equal protection arguments had pride of place, but today, advocates rely heavily on structural and institutional arguments to constrain official discretion.

In 1982, the United States Supreme Court’s decision in Plyler v. Doe declared unconstitutional a Texas statute that denied undocumented students access to public elementary and secondary schools. The Justices emphasized the harm to our democracy that would result from dehumanizing innocent children and relegating them to a permanent underclass of illiterates. In truth, Plyler was a jurisprudential anomaly even at the time it was decided. As a result, in the intervening years, the decision was narrowly limited to its facts, and resolution of the treatment of undocumented immigrants was largely left to the political process. With no clear place in the polity, the undocumented were especially burdened by processes that depend heavily on striking political bargains to influence discretionary policies. In the absence of a right to vote and a robust set of constitutional rights, unauthorized immigrants have mainly been able to bolster their claims to full inclusion through appeals to decency and desert.

The struggles of the Dreamers, undocumented immigrants who came to the United States as children, illustrate the limits of these calls for basic fairness. The Dreamers’ assertions of innocence, even though expressly legitimated in Plyler, have not allowed them to escape what sociologist Roberto G. Gonzales describes as a “transition to illegality” when they graduate from high school. Despite their academic achievements, they could not find a secure path to higher education, lawful employment, or American citizenship. When President Barack Obama’s administration created the Deferred Action for Childhood Arrivals (“DACA”) program in 2012, undocumented youth received temporary relief from the threat of deportation as well as access to a renewable authorization to work legally in the United States. However, President Donald Trump’s administration rescinded the program just five years later. In the ensuing litigation, lower courts have split on the rescission’s permissibility, and the U.S. Supreme Court is reviewing the issues in the 2019-2020 term.

As the Justices deliberate about these questions, they must consider the unique situation that the Dreamers face. Beneficiaries of the DACA program have come out of the shadows to apply for driver’s licenses and get jobs. The program’s abrupt termination has significantly destabilized their lives, and they cannot turn to the ballot box to rectify the situation. Although the Dreamers have asked for the “right to have rights,” the Court has not reinvigorated its equal protection jurisprudence to confer basic entitlements on persons or even citizens. Because the Court has construed the constitutional entitlements of marginalized groups parsimoniously, government officials operate in a steadily expanding realm of discretionary authority. In response, civil rights advocates have been forced to focus on just how much latitude these officials enjoy before they abuse their discretion. In the DACA cases, undocumented youth have contended that they at least have a right to settled expectations when relying on benefits under federal programs. By requiring administrative agencies to weigh reliance interests in a meaningful way, the Court can make clear that more is at stake than mere deference to government officials’ exercise of discretion. The Justices have the opportunity to remind agencies that program beneficiaries also have significant interests at stake that deserve official recognition and respect.

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University of California - Davis



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