To those who are concerned about principles of constitutional law and political morality, Owen Fiss has issued a timely reminder. Excluding the narrow world of immigration lawyers-and the remarkably persistent attention by New York Times columnist Anthony Lewis-the damage done by Congress1 in the name of immigration reform has not received the serious public scrutiny that it deserves.

But, curiously, the most serious damage–not just to immigrants but to the principles of constitutional law–is not raised in Fiss's essay. It is the wholesale denial of due process of law in most immigration proceedings, the elimination of judicial review of immigration agency actions, and the retroactive application of laws. These developments are deeply troubling and raise more fundamental constitutional issues than those highlighted in Fiss's essay.

Fiss's list of social disabilities is also less alarming than he suggests, for one simple reason: most of these disabilities have been remedied. Congress, after all, voted against "federalizing" California's Proposition 187, reversed the bar on Supplementary Security Income and Medicaid to the elderly, and partially restored food stamps to legal immigrants. These are not small gains, especially during a period seen as a political heyday for the anti-immigrant forces.

These caveats aside, however, Fiss's analysis does justice to some major issues in today's immigration debate.

I am instinctively sympathetic to the argument that social disability can invite constitutional scrutiny. I am in complete agreement that Fiss's list of social disabilities raises fundamental constitutional issues when it is applied to lawful permanent residents. I do not, however, believe that the same is true when it is applied to illegal immigrants.

I come to this view because I believe that there is a fundamental difference between rights and benefits. Fiss's list constitutes benefits, not rights. Benefits merit different analysis–especially they have have financial costs associated with them. The same principle that Fiss applies to the political privilege of voting, I believe, applies to the privilege of receiving benefits: the principle of rules of membership. For states that have to make choices among competing claimants for finite resources, it is appropriate to ask for some evidence of attachment–or membership–in the society before providing benefits to an immigrant. Lawful presence in the country is an acceptable minimum criterion for such membership.

There are, however, two public benefits for which even illegal immigrants must be eligible: basic public education and emergency medical care. These can be defended more on grounds of societal interest than benefit to the immigrant; untreated diseases and unattended vulnerable children present concrete costs and dangers to the larger society.

On the other hand, the rights of illegal aliens deserve a different treatment. One's position on illegal immigration can and should be distinct from the position one takes on the rights of illegal immigrants. Some rights have to be respected without regard to immigration status. The right to due process of law and to judicial review fall in this category. Similarly, to borrow Fiss's principle of antisubjugation, illegal immigrants must be protected from acts that promote subjugation. This is especially true in the workplace, where lack of rights can result in private economic gains to unscrupulous employers. Workplace laws must apply to all workers, without regard to status. Without that protection, employers have additional incentives to hire and exploit illegal aliens.

I would like to conclude with a comment on Fiss's comparison of the political powerlessness of immigrants and that of insular minorities like blacks. Immigration status, as Fiss points out, is not permanent in the same sense that race is. Nor is the powerlessness of immigrants. Ironically, one reason that many of the most severe social disabilities created by the 1996 legislation have been reversed is the extraordinary political power that newly naturalized citizens have demonstrated since 1996. If Prop. 187 was the recent high point of the anti-immigrant movement, it also managed to turn the politics of immigration on its head. Anti-immigrant rhetoric has suddenly stopped yielding political rewards. Fresh citizens are voting in large numbers and they are seeking a price for anti-immigrant policies. And politicians of all stripes are paying attention.


1 Here I mean the combined effect of three pieces of legislation that Congress passed in 1996: the Welfare Reform Law, the Illegal Immigration Reform and Individual Responsibility Act, and the Anti-terrorism and Effective Death Penalty Act.