constitutional-law us-constitution abortion
Dreamers legal status vs Unborn
<p>The conservative argument that the Dreamers law is unconstitutional is that it ascribes equal protection to non-US citizens under the 14th Amendment. The 14th Amendment lays out clearly and explicitly that only US born or naturalized citizens have equal protection.</p>
<p>Why doesn't the same logic follow that laws granting equal protection to a non-citizen fetus would be unconstitutional?</p>

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<p>The conservative argument that the Dreamers law is unconstitutional is that it ascribes equal protection to non-US citizens under the 14th Amendment. The 14th Amendment lays out clearly and explicitly that only US born or naturalized citizens have equal protection.</p>
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<p>If anyone makes that argument, it's an extreme fringe. The 14th Amendment does not prevent states from giving equal protection to non-citizens. In fact, in general, the 14th Amendment means states are <em>required</em> to give equal protection to non-citizens. See <a href="https://supreme.justia.com/cases/federal/us/403/365/" rel="nofollow noreferrer"><em>Graham v. Richardson</em>:</a></p>
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<p>The Fourteenth Amendment provides,</p>
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<p>&quot;[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.&quot;</p>
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<p>It has long been settled, and it is not disputed here, that the term &quot;person&quot; in this context encompasses lawfully admitted resident aliens, as well as citizens of the United States, and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside. Yick Wo v. Hopkins, 118 U. S. 356, 118 U. S. 369 (1886); Truax v. Raich, 239 U. S. 33, 239 U. S. 39 (1915); Takahashi v. Fish &amp; Game Comm'n, 334 U.S. at 334 U. S. 420.</p>
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<p>It's also settled that illegal immigrants are fully entitled to equal protection of the laws. See <a href="https://supreme.justia.com/cases/federal/us/457/202/" rel="nofollow noreferrer"><em>Plyler v. Doe</em>:</a></p>
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<p>That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter. Given such presence, he is subject to the full range of obligations imposed by the State's civil and criminal laws. And until he leaves the jurisdiction -- either voluntarily, or involuntarily in accordance with the Constitution and laws of the United States -- he is entitled to the equal protection of the laws that a State may choose to establish.</p>
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<p>The dissent to <em>Plyler</em> also agreed that illegal immigrants are entitled to equal protection of the laws:</p>
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<p>I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically &quot;within the jurisdiction&quot; of a state. However, as the Court concedes, this &quot;only begins the inquiry.&quot;</p>
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<p>Equal protection does not mean people in different situations must be treated identically. States are limited in their ability to discriminate against lawful permanent residents (<em>Richardson</em>), but there are situations where discrimination is appropriate (<em>Foley v. Connelie</em>, which held that a state can require police officers to be citizens). It's often considered reasonable for states to discriminate against illegal immigrants, but <em>Plyler</em> held that it was unreasonable to deny children the right to attend school because they were illegal immigrants. At the federal level, Congress has broad authority to discriminate against non-citizens (one reason states are fairly limited here is so they don't interfere with federal authority).</p>
<p>The question in the case mentioned in the comments, <em>DHS v. Regents of the University of California</em>, was whether the Trump administration's decision to end DACA was legal. One argument raised was that it violated the Equal Protection Clause because it disproportionately hurt Latinos and was motivated by prejudice against them. The Court held that the claims of a prejudicial motivation were weak and that the disproportionate effect was just because illegal immigrants are disproportionately Latino. The Court didn't explicitly say &quot;you can constitutionally make immigration policies that discriminate against illegal immigrants,&quot; but that's so obvious that no one seriously thinks otherwise.</p>
<p>What the Supreme Court did not rule was that the Equal Protection Clause does not apply to illegal immigrants. They held that it didn't ban this particular policy change, but that's not particularly surprising. They certainly didn't hold that DACA was illegal because it violated the Equal Protection Clause by protecting non-citizens. No one even bothered to address that claim.</p>
