Americans Without Papers, State Immigrant 'Attrition' Laws, and the Fourteenth Amendment

52 Pages Posted: 25 Jul 2012

Date Written: July 25, 2012


State immigration laws aim at the removal of a class of persons, undocumented aliens, through “attrition by enforcement.” Sponsors of the attrition laws claim federal authorization for their efforts, which otherwise may violate the Fourteenth Amendment and federal civil rights laws. The ultimate basis of the claim does not rest on the Constitution, but on a doctrine constructed in the nineteenth century, in the Chinese Exclusion Cases, contemporary with Plessy v. Ferguson. The Supreme Court then accepted a claim that Congress and the President had extra-constitutional power to expel a class of unwanted “aliens,” defined by their race. Congress in 1996 renewed the claim of power to deport even documented immigrants and naturalized citizens, and attempted to authorize state governments to share in the deportation power. State immigrant “attrition by enforcement” laws are the result. In Arizona v. United States, the S.B. 1070 case, the Supreme Court held that portions of the statute, a model for other state immigrant attrition laws, were not authorized but instead were preempted. The remaining state “attrition” schemes are still to be tested against the civil rights laws, however. The Court in modern times has greatly circumscribed the supposed, unlimited power to deport aliens claimed in the Chinese Exclusion Cases, and one hopes Congress and the courts will abandon the dubious doctrines announced in those opinions and do away with “Juan Crow.”

Keywords: Immigration, HB 56, SB 1070, Arizona, illegal alien, undocumented, constitutional law, original understanding, legal history, equal protection

Suggested Citation

Novick, Sheldon M., Americans Without Papers, State Immigrant 'Attrition' Laws, and the Fourteenth Amendment (July 25, 2012). Vermont Law School Research Paper No. 23-12. Available at SSRN: or

Sheldon M. Novick (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States


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