In August, Congress crossed a previously sacrosanct line in national immigration policy. With the landmark welfare reform bill, lawmakers snatched the entire package of benefits available to citizens away from legal immigrants. Before that, politicians had confined their attacks to illegal aliens, culminating in California's Proposition 187--now enjoined by a court--which denied state benefits to undocumented aliens.
Now, legal immigrants are fair game, too. In contrast to foreigners who sneak into the country and stay illegally, about 15 million legal immigrants pay taxes, have the right to work, and are generally on their way to full citizenship. They include some of our most productive residents, from hard-working dishwashers to hard-driving CEOs such as Intel Corp.'s Andrew S. Grove from Hungary (now a naturalized citizen). But for the first time since President Franklin D. Roosevelt interned Japanese Americans during World War II, legal residents fear that their rights and safety in this country could change at any time under popular pressure.
LIMITS ON SPEECH? Besides welfare reform, newly passed antiterrorism and immigration statutes also trim constitutional rights for immigrants. Aliens accused of deportable crimes such as terrorism, for example, lose rights to appeal government charges. States have joined in, too, with laws that arguably limit immigrants' First Amendment rights. Arizona's English-only statute banning government workers from speaking other languages to foreign-born state residents is now being challenged in the Supreme Court.
Americans are undoubtedly reacting to surging immigration in the past three decades and to jitters about our relatively open economy and borders. But one of the country's proudest achievements is now threatened. Inclusion of newcomers in the political and social community has been the "genius of the American system," says Lawrence H. Fuchs, a Brandeis University professor and member of the U.S. Commission on Immigration Reform. "It's a system that commands the loyalty of newcomers faster than any other in the world." By demoting immigrants to second-class status, the country risks slowing their assimilation.
Traditionally, the courts have stood as a bulwark against populist attacks on minorities, upholding constitutional principles against the momentary passions of the majority. In the 1970s and early 1980s, the Supreme Court spelled out protections for legal immigrants that were virtually identical to those of citizens.
But now there is a danger that the courts may no longer play this role. Today's conservative jurists are more likely than the comparatively liberal courts of 20 years ago to let stand federal laws that treat noncitizens differently from citizens. The reason: The Constitution gives Congress exclusive powers over immigration laws.
NEW CHALLENGE. And conservative judges are inclined to believe that authority is more important than the constitutional rights of legal immigrants as individuals. The first battleground will be the U.S. Supreme Court, which on Dec. 4 heard a lawsuit against Arizona's 1988 law requiring state workers to speak only English. And a prospective challenge to the welfare law will question whether that statute violates equal protection of legal immigrants vs. citizens.
As the judiciary hears these cases, it would do well to keep in mind America's historic ability to absorb newcomers. By seeing a law-abiding immigrant as one of us rather than one of them, the courts can help the country preserve, rather than undermine, the cause of national unity.