What Would Justice Powell Do? the 'Alien Children' Case and the Meaning of Equal Protection

By Greenhouse, Linda | Constitutional Commentary, Spring 2008 | Go to article overview

What Would Justice Powell Do? the 'Alien Children' Case and the Meaning of Equal Protection


Greenhouse, Linda, Constitutional Commentary


The debate over national immigration policy is at fever pitch. Harsh anti-immigrant rhetoric dominated the discourse during the early Republican presidential primaries. Congressional gridlock has led states and cities, many far from the border, to take matters into their own hands by enacting laws or adopting policies aimed at encouraging immigrants to leave the jurisdiction by penalizing those who would employ or rent to them. (1) During the 2007 legislative sessions, 46 states enacted 244 immigration-related measures, triple the previous year's number.(2) The one predictable outcome of this activity has been litigation. (3)

The immigration conflagration of today is hardly a new phenomenon in United States history. It mirrors, albeit with greater intensity and on a larger scale, the immigration brushfires of the 1980's, when Congress responded to mounting calls for action by passing the Immigration Reform and Control Act of 1986, (4) which for the first time imposed civil and criminal liability on employers who knowingly hired immigrants who lacked legal authority to work. Well before Congress acted, states had begun to take matters into their own hands. In 1975, Texas passed a law providing that alien children not legally admitted into the United States were not entitled to a free public education. (5)

The Supreme Court struck down the Texas law on June 15, 1982, ruling that a state offering a free public education to the children of citizens had to provide the same opportunity to the alien children of undocumented immigrants. Justice Brennan, writing for the 5 to 4 majority in Plyler v. Doe, (6) said that a statute that imposed "a lifetime hardship on a discrete class of children not accountable for their disabling status" while failing to serve any "substantial" countervailing state interest violated the 14th Amendment's guarantee of equal protection. (7)

Justice Powell concurred. "I agree with the Court that ... children should not be left on the streets uneducated," the former chairman of the Richmond, Va. school board and former president of the Virginia State Board of Education wrote in his five-page opinion. (8) In what became the decision's best-known line, Powell added: "A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment." (9)

At the United States Department of Justice, within hours of the decision's announcement, two young special assistants in the office of the attorney general delivered a highly negative analysis to Attorney General William French Smith. They made clear not only their dismay with the ruling, but also their conclusion that Solicitor General Rex E. Lee's failure to have placed the Reagan Administration's weight behind the state's defense of its law contributed significantly to the disappointing outcome. (10)

"[T]his is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have," John G. Roberts Jr. and Carolyn B. Kuhl told the attorney general. (11) The two added: "It seems likely that the dissenting Justices had particularly tried to win over Justice Powell, but were unable to do so.... It is our belief that a brief filed by the Solicitor General's Office supporting the State of Texas--and the values of judicial restraint--could well have moved Justice Powell into the Chief Justice's camp and altered the outcome of the case."

The analysis was provocative, particularly in light of the subsequent career path of one of its authors. But it was almost certainly wrong.

Justice Powell's papers, housed at his alma mater, Washington and Lee University Law School, show that while he found the case "extremely difficult" as a matter of legal doctrine, as he wrote to his law clerk while preparing for oral argument, (12) he sought from the very beginning of his consideration to find a way to safeguard the plaintiff children's interest in receiving an education. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

What Would Justice Powell Do? the 'Alien Children' Case and the Meaning of Equal Protection
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.