Non-citizens have fared best in recent Supreme Court cases by piggybacking on federal rights when the actions of states are at issue, or by criticizing agency rationality when federal action is at issue. These two themes-federalism and agency skepticism-have proven in recent years to be more effective litigation frameworks than some individual rights-based theories like equal protection. This marks a substantial shift from the Burger Court era, when similar cases were more likely to be litigated and won on equal protection than on preemption or Administrative Procedure Act theories. This Article describes this shift, considers the reasons for it, and makes a normative argument that the change is a cause for concern. To make this claim, the Article sets out a theoretical framework of rights of personhood and membership, offers a history of immigrant rights, and suggests that the shift away from equal protection as a mode of analysis might reflect a decreased willingness to recognize non-citizens as members of civil society. The Article critiques this shift as inconsistent with democratic values.
44 Colum. Hum. Rts. L. Rev. 367 (2013)