new topic: Does Graham v. Richardson survive

[Loffredo]

> I like Professor Loffredo's argument, but does Saenz involve a right that the
> federal government itself would be free to violate without the intermediation
> of the states?  If not, would it be strong enough support for invalidating the
> statute Sandy is concerned about?
> Bill Fisch
>

That distinction certainly exists.  But Graham itself rejected a claim that
Congress may authorize states to engage in otherwise unconstitutional
discrimination against non-citizens.  The only changed circumstance now (if
you don't count the composition of the Court) is a declaration by Congress
that the discrimination it has authorized is narrowly tailored to achieve a
compelling governmental interest.  So it seems as though Congress was
operating on the assumption that states taking up the federal invitation to
discriminate would have to satisfy a heightened standard of justification
(i.e., that the states would not inherit the judicial deference due a
congressional decision to exclude non-citizens from an assistance program.)
It would be ironic after Boerne and especially Garrett (where the Court was
noticeably unimpressed by Congress's finding that the disabled are a
"discrete and insular minority"), if the Court credited Congress's analogous
finding here.

The NY State case I mentioned in the earlier post is reported at 730
N.Y.S.2d 1 (2001) and contains helpful discussion of the issue.
--
Stephen Loffredo
City University of New York School of Law
65-21 Main Street
Flushing, NY  11367

718-340-4373
loffredo at mail.law.cuny.edu