Unlawful Status as a Constitutional Irrelevancy ?: The Equal Protection Rights of Illegal Immigrants

This article focuses on state discrimination against illegal immigrants and the use of equal-protection doctrine to protect these immigrants\u27 rights to enjoy the array of benefits and services offered by state governments. There are two main reasons why this article will focus on the Equal Protection Clause rather than on federal preemption doctrine, which is the other major tool that illegal immigrants can use to attack discriminatory state classifications. First, the equal-protection doctrine highlights the dignity and membership of an individual in American society in a way that the more structural preemption analysis does not. Second, preemption has become the more common, and successful, tactic over the last twenty years, leaving the equal-protection approach under-explored and undeveloped since the early 1980. It is time to revive the analysis of illegal immigrants\u27 right to strong equal protection of the laws, both to highlight their equal moral membership in America and because the preemption approach does not always prevail