Equal Protection Exceptionalism

Abstract

Equal protection doctrine addressed to immigrants' rights is thoroughly exceptional. It is an amalgam of super-deference, suspect class treatment, and even intermediate scrutiny, depending upon whether immigrants are present in the United States lawfully or not, and whether a state or federal classification is at issue. No other area of equal protection law modulates equal protection scrutiny in this way, producing unparalleled complexity and tension within the doctrine--and ultimately undermining equality. It is time to rethink the doctrine.