Though unauthorized migration into the United States has diminished substantially since 2007, anti-“illegal alien” state and local laws and furor are flaring again. While one of the biggest worries regarding such “anti-alien” laws is the risk of racialized harm, courts invalidating overreaching statutes are relying on structural or procedural grounds, such as preemption and due process doctrines. This Article examines how these political and legal trends point to how proxies are used in a post-racial era to dance around race, in constructive national unity-rebuilding as well as divisive inflammatory ways. Anti-alien legislation is a proxy way to vent resurgent racialized anxieties and engage in friend-enemy politics founded on conflict with the “Other”— the foreign enemy within — in a time of economic and political turmoil. The approach of cutting back overreaching statutes using alternate frames of analysis such as preemption rationales to vindicate prior national commitments to balancing antidiscrimination with enforcement can be constructively deployed to fill gaps and blind spots in antidiscrimination doctrine, and to mitigate polarization by making shared interests and social cohesiveness rather than racial divergence of interests salient.
Equality norms can be framed and vindicated in a more palatable, legally tenable form, and tied to other interests to appeal more widely and ameliorate estrangement in a polarized polity. Legislation is invalidated not to “accommodate” the minorities against the majority will, but to preserve values such as the federal balance, or guard against arbitrary governmental power. The approach is also a technique of bridge-building across worldviews to appeal to hierarchs, who tend to be conservative supporters of tough legislation, as well as egalitarians, who value equality more highly. To be constructive, however, these alternate approaches must enfold antidiscrimination concerns and norms into the analysis rather than altogether elide the concerns. Moreover, in crafting decisions, courts have an important role to play in counteracting rather than amplifying the spread of conflation and misperception that fuel fierce friend-enemy politics.