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The Forgotten Equality Norm in Immigration Preemption: Discrimination, Harassment, and the Civil Rights Act of 1870

52 Pages Posted: 18 Oct 2013 Last revised: 2 Dec 2013

Lucas Guttentag

Yale University - Law School; Stanford Law School

Date Written: October 1, 2013

Abstract

The current debate over immigration federalism overlooks the significance of the Civil Rights Act of 1870 as a limit on state and local immigration legislation. The 1870 Act, passed by the Reconstruction Congress, includes prohibitions on “alienage” discrimination in “every State and Territory” that remain embedded in federal law. This Article seeks to revive the Act’s importance to contemporary Supremacy Clause analysis by recounting the history of the 1870 legislation and reviewing the Supreme Court’s invocation of the Civil Rights Act across many decades to preempt sub-federal immigration laws.

Revitalizing the federal alienage protections of the 1870 Act has significant consequences for immigration federalism today. The Article argues that the civil rights “immigrant equality” mandate requires courts to consider the discriminatory consequences of sub-federal laws as a facet of federal supremacy. The equality norm of the Civil Rights Act draws an important distinction between immigrant-hostile state laws that engender discrimination and immigrant-friendly (so-called “sanctuary”) laws that seek to further immigrant protection. The Act erects a federal barrier to local measures that target immigrants for enforcement and provides leeway for local initiatives that diminish the salience of immigration status in state and local matters.

Keywords: immigration, federalism, equality, discrimination, civil rights, preemption, supremacy clause, Civil Rights Act of 1870, Arizona, SB1070

Suggested Citation

Guttentag, Lucas, The Forgotten Equality Norm in Immigration Preemption: Discrimination, Harassment, and the Civil Rights Act of 1870 (October 1, 2013). Duke Journal of Constitutional Law & Public Policy, Vol. 8, No. 1, 2013. Available at SSRN: https://ssrn.com/abstract=2339424 or http://dx.doi.org/10.2139/ssrn.2339424

Lucas Guttentag (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Stanford Law School ( email )

Stanford, CA

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