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Plyler v. Doe
1. Here are four arguments one might use to challenge the Texas statute at issue in Plyler: (a) substantive due process; (b) equal protection; (c) federal preemption; (d) the problem of states trying to make immigration determinations (procedural due process plus federalism). Rank the arguments strongest to weakest. Which ones do the majority accept?
2. Much of Justice Brennan's majority opinion emphasizes the unfairness of punishing the children for the decisions of their parents to enter or remain in violation of immigration laws. To what extent does the opinion apply, however, to (a) students in non-secondary education who are over 18 and (b) unaccompanied minors who were not necessarily "dragged" across the border by their parents? How voluntary are most illegal immigrant decisions to cross or remain? What if conditions are awful in their home nation but they don't qualify for asylum or similar forms of relief?
3. Chief Justice Burger says Justice Brennan is just acting as a super legislator. Do you agree? Disagree? Why?
4. Chief Justice Burger writes, "However, it is not the function of the Judiciary to provide “effective leadership” simply because the political branches of government fail to do so." What do you think?
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