Author

Assistant Professor of Clinical Law, New York University. B.A., 1987; J.D., 1993, Yale University.

In this Article, Professor Michael Wishnie addresses the current pressing problem of denial of benefits to legal immigrants under the 1996 Welfare Reform Act in the context of a deeper inquiry into the very heart of immigration law: From where does the federal government derive the power to regulate its borders? Can Congress devolve this power to the states? Looking deeply into jurisprudence and textual sources, as well as history, he ascertains that this authority always has been exclusively federal and that to permit devolution would be to contradict the entire notion of sovereignty. Thus, Professor Wishnie concludes that any devolution of authority over immigration to the states, such as that contained in the 1996 welfare reforms, may not receive the judicial deference traditionally granted to federal immigration law. Instead, any state exercise in the immigration arena, even pursuant to Congress’s explicit approval, must be evaluated under thirty years of precedent subjecting state discrimination against permanent resident aliens to heightened scrutiny.

Today in the United States, millions of undocumented persons are working long hours for illegally low pay, in workplaces that violate health and safety codes, for employers who defy labor and antidiscrimination laws. Many more fall victim to criminal activity, forced into involuntary servitude and subjected to physical abuse. Yet these immigrants often do not report their harsh conditions and cruel treatment for fear that they will attract the attention of immigration officials and be deported. Law enforcement policies that deter noncitizens from reporting crimes are surely unwise, undermining public safety and health and entrenching undocumented immigrants in a caste hierarchy. In this Article, Professor Michael Wishnie argues that those policies may be unconstitutional as well— violating noncitizens’ First Amendment right to “petition the Government for a redress of grievances.” The Article begins with the Supreme Court’s 1990 suggestion that noncitizens are not among “the people” whose rights the Framers intended to safeguard in the First and Fourth Amendments. To confront the Court’s reasoning on its own historical terms, Professor Wishnie examines the rich history of petitioning by noncitizens from early English tradition through the early nineteenth century, illustrating that the Founders did not intend to exclude noncitizens from “the people” whose rights would be established. Professor Wishnie then develops a theory of “extraordinary speech” to protect noncitizen petitioning and demonstrates how such a theory coheres with related doctrines of court access, unconstitutional conditions,and equal protection. Applying the theory, he concludes that some policies discouraging immigrant communications to law enforcement officials are so burdensome as to violate the First Amendment.