Critical Race Theory and Proposition 187: The Racial Politics of Immigration Law

Immigration law and politics have been historically intertwined with racial prejudice. Many of those who have called for immigration restrictions have also sought an end to the racial and cultural diversity brought by immigrants. With the end of legally sanctioned race discrimination in the 1960s, immigration rhetoric has lost some of its overt racist overtones. However, in the 1990s, many politicians and lawmakers have emphasized the difference between “legal” and “illegal” immigration. This change begs a central question: Have the racist motivations of past immigration law and policy been completely displaced by a concern for law and order? This Comment argues that immigration law and policy continue to be at least partially motivated by a drive for cultural and racial homogeneity. This Comment uses Critical Race Theory as a vehicle to explore the racial underpinnings of immigration law and policy. Critical Race Theory is a theoretical framework that explores the ways that purportedly race-neutral laws and policies perpetuate racial subordination. The repeated assertions that anti-immigration measures are not racially motivated make immigration law and policy a unique candidate for analysis through a Critical Race lens. This Comment will focus on Proposition 187, the November 1994 California ballot initiative passed by the voters which, if declared constitutional by the courts, would deny education and numerous social services to undocumented immigrants. This Comment argues that Proposition 187 was not passed to punish undocumented immigrants, nor out of a wish to return to the “rule of law,” as many of its proponents argued. Rather, it was propelled by fears of the increasing racial diversity of California and the United States. In this way, Proposition 187 is consistent with the racism underlying the history of United States immigration law and policy