The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Now that a federal judge has enjoined President Obama's unilateral amnesty, immigration reform will have to be achieved the old-fashioned – and constitutional – way: by compromise with Congress. A grand bargain is not impossible, but it will require a broad re-framing of the issues and a clear sense of what is at stake. For one thing, any such bargain should end, once and for all, governmental discrimination on the basis of race.
Affirmative action and immigration might, at first glance, appear unrelated; in fact, they are profoundly and perversely intertwined. It is often said that anti-immigration sentiment is driven by a fear of competition; Americans are said to fear competing against new immigrants for jobs, for contracts, for educational opportunities. This account leaves out a crucial part of the story: Americans have never lacked competitive spirit or feared a fair fight. What many Americans fear is that these competitions will, in fact, be rigged from the outset. The sad fact is that they are right.
American law and policy will discriminate in favor of most immigrants – those of favored races such as blacks and Hispanics – and their children, and their children's children. Correspondingly, American law and policy will discriminate against Americans of disfavored races – Asian Americans, Indian Americans, Caucasian Americans – and their children, and their children's children. This discrimination is enshrined in federal law, in state law, and in private policy abetted by law. It is called affirmative action.
This systematic discrimination is pervasive in American life – in private employment, state employment and federal employment; in state contracting and federal contracting; at private universities and state universities. And in practice, it is no mere tie-breaker; it is a massive thumb on the scale in favor of some races and against others. A first-generation Asian American who has made his home in, say, Wisconsin and worked hard to earn for his children their chance at the American dream might, in principle, favor liberal immigration reform, so that more ambitious immigrants might follow in his footsteps. This Asian American may be happy to know that the son of a new Hispanic immigrant who settles next door would have an excellent chance of claiming his share of the American dream: With a respectable GPA and LSAT, such a boy would have, for example, a 62 percent chance of admission into the University of Wisconsin Law School. But this Asian American also may know a deeply perverse and unjust fact: If his own son earns identical credentials, that boy will have a mere 16 percent chance of admission, simply because of his race. State law, federal law, private schools and public schools will all dramatically favor a Hispanic immigrant's child over an Asian American child, simply on the basis of race. This is one of the great injustices of American life, and it is one of the great political and moral hurdles to immigration reform.
As a political matter, there is a natural bargain here. Democrats believe that immigration is a winning political issue for them; they believe that it makes them look compassionate while it makes Republicans look churlish. Affirmative action, on the other hand, is a political winner for Republicans; polls overwhelmingly oppose it, and it allows Republicans to argue for the ringing principle of equality under law, while Democrats are left to defend the status quo of institutional discrimination and racial spoils. The connection between these two issues creates the potential for a grand congressional compromise. Republicans could agree to comprehensive immigration reform, if Democrats would agree to end governmental discrimination on the basis of race.
Meanwhile, for President Obama, this would be more than a political victory; it would be a historic moral triumph. There is a broad consensus that our immigration system is broken and that it can be downright cruel in its current dysfunctional form. President Obama has wanted to achieve immigration reform since before the beginning of his presidency. As for affirmative action, President Obama is uniquely well qualified to explain the moral case for equality under law. His soaring speech in Selma last month reminded us all of how eloquent he can be on this topic: as he declared, the heroic marchers of 50 years ago "didn't seek special treatment, just the equal treatment promised to them almost a century before." Our newest Americans seek exactly the same thing. It is President Obama alone who can say to them:
Welcome to the United States of America. We are a nation of immigrants, a nation of opportunity. We are not a land of discrimination; we are a nation of equality under law. This is a nation where the son of a Kenyan immigrant may grow up to be president of the United States. Come to our shores and we make you this promise: We will treat you like everyone else. We will not discriminate against you based on your race, your color, your country of origin. And we will not discriminate in your favor either. Your children will be treated like our children. We will not discriminate in favor of your daughters on the basis of their race. But neither will we discriminate in favor of my daughters, Malia and Sasha, on the basis of theirs. We know that, like the marchers at Selma, you seek not special treatment but equal treatment, and that is what we promise you. You are welcome here, and we offer you a uniquely American constitutional guarantee. We promise you – our Fourteenth Amendment promises you – equal protection of the law.
This is the speech that President Obama was born to give, a speech that no one else could, a perfect complement to his speech at Selma. In one historic moment, he could renew the pride that we all felt six years ago when our first black president swore his oath of office. He could at once reform our immigration laws and, in the same moment, redeem the true promise of equal protection – the promise, in Justice Harlan's words, that "[o]ur Constitution is color-blind and neither knows nor tolerates classes among citizens."
In 2008, President Obama promised to "fundamentally transform the United States of America"; here, at last, is the transformation that would assure his legacy. For the first time in American history, we could welcome immigrants of all colors to the nation of Martin Luther King's dream, "a nation where they will not be judged by the color of their skin but by the content of their character." And President Obama could, for all time, be the one who made Martin Luther King's dream come true.