What would Justice Powell do? The 'alien children' case and the meaning of equal protection.

The debate over national immigration policy is at fever pitch. Harsh anti-immigrant rhetoric dominated the discourse during the early Republican presidential primaries. Congressional gridlock has led states and cities, many far from the border, to take matters into their own hands by enacting laws or adopting policies aimed at encouraging immigrants to leave the jurisdiction by penalizing those who would employ or rent to them. (1) During the 2007 legislative sessions, 46 states enacted 244 immigration-related measures, triple the previous year's number.(2) The one predictable outcome of this activity has been litigation. (3)

The immigration conflagration of today is hardly a new phenomenon in United States history. It mirrors, albeit with greater intensity and on a larger scale, the immigration brushfires of the 1980's, when Congress responded to mounting calls for action by passing the Immigration Reform and Control Act of 1986, (4) which for the first time imposed civil and criminal liability on employers who knowingly hired immigrants who lacked legal authority to work. Well before Congress acted, states had begun to take matters into their own hands. In 1975, Texas passed a law providing that alien children not legally admitted into the United States were not entitled to a free public education. (5)

The Supreme Court struck down the Texas law on June 15, 1982, ruling that a state offering a free public education to the children of citizens had to provide the same opportunity to the alien children of undocumented immigrants. Justice Brennan, writing for the 5 to 4 majority in Plyler v. Doe, (6) said that a statute that imposed "a lifetime hardship on a discrete class of children not accountable for their disabling status" while failing to serve any "substantial" countervailing state interest violated the 14th Amendment's guarantee of equal protection. (7)

Justice Powell concurred. "I agree with the Court that ... children should not be left on the streets uneducated," the former chairman of the Richmond, Va. school board and former president of the Virginia State Board of Education wrote in his five-page opinion. (8) In what became the decision's best-known line, Powell added: "A legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment." (9)

At the United States Department of Justice, within hours of the decision's announcement, two young special assistants in the office of the attorney general delivered a highly negative analysis to Attorney General William French Smith. They made clear not only their dismay with the ruling, but also their conclusion that Solicitor General Rex E. Lee's failure to have placed the Reagan Administration's weight behind the state's defense of its law contributed significantly to the disappointing outcome. (10)

"[T]his is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground, and should have," John G. Roberts Jr. and Carolyn B. Kuhl told the attorney general. (11) The two added: "It seems likely that the dissenting Justices had particularly tried to win over Justice Powell, but were unable to do so.... It is our belief that a brief filed by the Solicitor General's Office supporting the State of Texas--and the values of judicial restraint--could well have moved Justice Powell into the Chief Justice's camp and altered the outcome of the case."

The analysis was provocative, particularly in light of the subsequent career path of one of its authors. But it was almost certainly wrong.