Making Legal: The Dream Act, Birthright Citizenship and Broad-Scale Legalization

Hiroshi Motomura
Date of Publication: 
December, 2012
Source Organization: 

"Making Legal: The Dream Act, Birthright Citizenship and Broad-Scale Legalization" looks at the arguments for and against three types of policy initiatives to grant legal status or citizenship to persons who might otherwise be in the U.S. unlawfully:  the Dream Act, birthright citizenship, and a broad-scale legalization program. The author begins her analysis by identifying the major arguments used by the Supreme Court in its landmark 1982 decision Plyler v. Doe, which held that no state can limit a child's access to education based on immigration status. The three arguments were: the complexity of unlawful presence, the limited role of states and localities, and the need to integrate unauthorized immigrants, especially children. She shows how these three arguments remain pivotal in debates over the three legalization initiatives. She also analyzes the principal arguments used by opponents of these measures, which often echo the arguments of supporters through their reliance on concepts of "fairness" and "pragmatism."

In general, she finds these arguments unpersuasive. Indeed, she turns the "rule of law" argument on its head by showing how "malleable" the rule of law actually is in immigration matters, referring specifically to measures adopted by Congress in 1996 that denied discretionary relief to immigrants, limited the jurisdiction of federal courts to review removal orders, and stripped immigrants of the right to counsel.  The author concludes that "rule of law arguments in favor of conferring status are stronger than rule of law arguments against doing so." (Abstract courtesy Nicholas Montalto, PhD.)

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Motomura, H. "Making Legal: The Dream Act, Birthright Citizenship, and Broad-Scale Legalization" (January 15, 2013). 16 Lewis & Clark Law Review 1127-48 (2012); UCLA School of Law Research Paper No. 13-01. Available at SSRN: