The Discourse and the Danger (or, Why Plyler Should Have Been Decided on Preemption Grounds)
This concluding chapter analyzes the actual legal reasoning of the Plyler case, acknowledging its importance and efficacy, and notes that it would have been more efficacious and far reaching if Justice Brennan had decided it on the grounds of preemption, rather than employing the doctrine of equal protection. Had the case been determined on the theory of preemption, it would have been a useful counter to the rise of restrictionist and nativist ballot measures and state laws, on the grounds that only Congress can enact immigration laws. The political opening here has been used by those who oppose immigrant rights to craft measures that have been aimed at undocumented residents, unauthorized workers, and adult immigrants without legal status. The U.S. Supreme Court has overturned most of these provisions, but this has required substantial legal resources by MALDEF and other advocacy groups and purposive organizations, and some restrictionist measures remain in force. There is evidence that the undocumented and their advocates have seized the narrative high ground and defined the discourse, but no movement for comprehensive immigration reform has occurred at the federal level, a political impasse that remains unyielding to progress at the school, college, and state levels.
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