Contemporary equal protection doctrine touts the principle of congruence: the notion that equal protection means the same thing whether applied to state or to federal laws. The federalism-tinged equal protection analysis at the heart of Justice Kennedy's opinion in United States v. Windsor, however, necessarily violates the congruence principle. Commentators and courts - especially those deciding how Windsor's federalism should affect the ever-growing number of state same-sex marriage cases - have so far failed to account for Windsor's noncongruent equal protection, much less ask whether noncongruence is generally desirable, and if so, what form it should take. This Article draws answers to those questions from the Supreme Court's alienage discrimination cases, which offer three distinct models of noncongruence, each of which is reflected in Windsor. The alienage cases show that instead of applying different levels of scrutiny to federal and state laws, a better understanding of noncongruence would allow different levels of government to assert different interests in defending their laws. By reconstructing and evaluating the ways that structure and rights intersect in the alienage cases, this Article considers for the first time what the return of noncongruent equal protection could mean both for cases that follow Windsor and for equal protection doctrine more broadly.

On October 3, 1965, President Lyndon Johnson traveled to the Statue of Liberty to sign Public Law 89–236, the 1965 amendments to the Immigration and Nationality Act. After joking with congressmen from New York and New Jersey about whose state they were in, the president delivered a stirring description of “one of the most important acts of this Congress and of this administration”: ending “the harsh injustice of the national origins quota system.” Henceforth, Johnson said, immigrants to the United States would “come because of what they are, and not because of the land from which they sprung.” Having hailed the end of the national origins quotas, President Johnson then turned to his second topic: the announcement of a new immigration initiative based entirely on national origins. The speech heralded the launch of the Cuban airlift. The contradiction at the heart of President Johnson's signing statement reflected tensions in the 1965 Act itself – specifically, tensions stemming from its treatment of refugees. Where the primary purpose of the Act was to do away with discriminatory national origin quotas, the refugee preference was explicitly tied to communist and Middle Eastern countries. Where the rest of the Act aimed to bring immigration priorities in line with contemporary economic and social needs, its provisions for refugees failed to address even the most obvious demands of the time – most notably, the tens of thousands of Cubans then looking to flee the Castro regime. And where the 1965 Act can otherwise be seen as an assertion of Congressional control over the numbers and types of immigrants the United States would admit, the protection of refugees was largely left to the discretion – not always wanted – of the executive branch. This chapter tells how the ad hoc nature of postwar U.S. refugee policy provided a crucial impetus for the broader immigration reforms of 1965. But refugee policy itself largely escaped such reform, and the formalizing of admissions based on family ties and employment skills – the hallmarks of the 1965 Act – only made ad hocery all the more prevalent when humanitarian crises and political opportunity required admissions outside these bases.