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Bench Memos

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This Day in Liberal Judicial Activism—June 15



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1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texasto provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of “effective leadership” in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide “effective leadership” simply because the political branches of government fail to do so.


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