For roughly a decade, federal legislation has devolved to the states some of Congress's authority to adopt immigration policies that discriminate against permanent resident aliens. Equal protection challenges to discriminatory state policies so authorized by Congress raise the knotty issue of the appropriate scope of judicial review. Courts remain divided. The source of the difficulty is that the equal protection "congruence principle" is not applicable to alienage discrimination. Unlike equal protection cases throughout most of constitutional law, the judiciary deploys different standards of judicial review in alienage discrimination cases depending on whether the discrimination arises under federal or state law. Applying a highly deferential standard of review, courts normally uphold congressionally enacted immigration policies discriminating against aliens. By contrast, courts normally invoke strict judicial scrutiny to find state alienage discrimination unlawful. Congressional devolution legislation authorizing states to adopt policies that discriminate against aliens spawn equal protection challenges that do not fit neatly into either category of judicial review: the controversies entail state alienage discrimination but the discrimination being challenged is congressionally authorized. Devolution presents the question whether Congress should be able to immunize the states from strict judicial scrutiny by authorizing the states to adopt discriminatory immigration policies that Congress could itself adopt. That question is the subject of this Article.
In this Article, I show that, to date, the devolution debate has become mired, and is deadlocked, because it has failed to focus on the separation of powers implications of congressional devolution. I show that, properly understood, congressional devolution poses complex issues regarding the respective authority of Congress and the federal judiciary to superintend, and ultimately define, the Constitution's equality norms. These separation of powers implications of congressional devolution are not likely to be overlooked when the devolution issue eventually reaches the Supreme Court. My thesis is that addressing congressional devolution as primarily a separation of powers problem holds the key to resolving the proper scope of judicial review of congressionally-authorized state alienage discrimination.
Roger C. Hartley, Congressional Devolution of Immigration Policymaking: A Separation of Powers Critique, 54DUKE J. CONST. L. & PUB. POL’Y 93 (2007).