72 Am. U. L. Rev. F. 147 (2023).

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Abstract

In The Rise of the ‘Immigrant-as-injury’ Theory of State Standing, Professor Jennifer Lee Koh identifies and critiques an emerging theory of state standing that treats the existence of immigrants as an injury to the state for purposes of challenging federal immigration policies. Koh persuasively critiques the immigrant-as-injury theory on anti-subordination, federalism, and democratic accountability grounds. As she explains, the theory relies on flawed narratives about immigrants’ undesirability and. state powerlessness over immigration policy to enable states to pursue politicized goals. This Response builds on Koh’s critique to cast the immigrant-as-injury theory as a form of “backdoor discrimination” against immigrants in violation of Equal Protection principles. The Response argues that acceptance of the immigrant-as-injury theory permits an end-run around Equal Protection itself.

* Professor of Clinical Law, New York University School of Law. I thank Sirine Shebaya, Joseph Meyers, and Amber Qureshi of the National Immigration Project of the National Lawyers Guild, with whom I co-authored an amicus brief on standing in United States v. Texas. See Brief of Amici Curie Immigrant & Civil Rights Organizations et al. in Support of Petitioners, United States v. Texas, 142 S. Ct. 14 (2021) (No. 22-588). I also thank Michael Leonetti and Jacob Park for their helpful research assistance. I am also grateful for the thoughtful editorial feedback of Luke Hancox and the editors of the American University Law Review.