Equal Protection Cases Based on Alienage

The Fourteenth Amendment states:

​"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

What It Means

​United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

"It has long been settled . . . that the term 'person' [in the Equal Protection Clause] encompasses lawfully admitted resident aliens as well as citizens of the United States and entitles both citizens and aliens to the equal protection of the laws of the State in which they reside."¹ Thus, one of the earliest equal protection decisions struck down the administration of a facially lawful licensing ordinance that was being applied to discriminate against Chinese immigrants.² In many subsequent cases, however, the Court recognized a permissible state interest in distinguishing between its citizens and aliens by restricting enjoyment of resources and public employment to its own citizens.³ But, in Hirabayashi v. United States,⁴ the Court announced that "[d]istinctions between citizens solely because of their ancestry were odious to a free people whose institutions are founded upon the doctrine of equality." And, in Korematsu v. United States,⁵ classifications based upon race and nationality were said to be suspect and subject to the most rigid scrutiny. 

Learn More - One of the Supreme Court's Biggest Mistakes: Korematsu v. United States

These dicta resulted in a 1948 decision that appeared to call into question the rationale of the particular interest doctrine under which earlier discrimination had been justified. In the 1948 decision, the Court held void a statute barring issuance of commercial fishing licenses to persons "ineligible to citizenship," which in effect meant Japanese immigrants.⁶ The Fourteenth Amendment and the laws adopted under its authority thus embody a general policy that all persons lawfully in this country shall abide 'in any state' on an equality of legal privileges with all citizens under nondiscriminatory laws. Justice Black said for the Court that "the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits."⁷

Announcing that "classifications based on alienage . . . are inherently suspect and subject to close scrutiny," the Court struck down state statutes which either wholly disqualified resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility.⁸ Thereafter, in a series of decisions, the Court adhered to its conclusion that alienage was a suspect classification and voided a variety of restrictions. More recently, however, it has created a major political function exception to strict scrutiny review, which shows some potential of displacing the previous analysis almost entirely.

Public Service

In Sugarman v. Dougall,⁹ the Court voided the total exclusion of aliens from a state's competitive civil service. A state's power to preserve the basic conception of a political community enables it to prescribe the qualifications of its officers and voters,¹⁰ the Court held, and this power would extend also to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.¹¹ But a flat ban upon much of the state's career public service, both of policy-making and non-policy-making jobs, ran afoul of the requirement that in achieving a valid interest through the use of a suspect classification the state must employ means that are precisely drawn in light of the valid purpose.¹²

Practice of Law

State bars against the admission of aliens to the practice of law were also struck down, the Court holding that the state had not met the heavy burden of showing that its denial of admission to aliens was necessary to accomplish a constitutionally permissible and substantial interest. The state's admitted interest in assuring the requisite qualifications of persons licensed to practice law could be adequately served by judging applicants on a case-by-case basis and in no sense could the fact that a lawyer is considered to be an officer of the court serve as a valid justification for a flat prohibition.¹³ Nor could Puerto Rico offer a justification for excluding aliens from one of the common occupations of the community, hence its bar on licensing aliens as civil engineers was void.¹⁴

Scholarships

In Nyquist v. Mauclet,¹⁵ the Court seemed to expand the doctrine. The statute that was challenged restricted the receipt of scholarships and similar financial support to citizens or to aliens who were applying for citizenship or who filed a statement affirming their intent to apply as soon as they become eligible. Therefore, because any alien could escape the limitation by a voluntary act, the disqualification was not aimed at aliens as a class, nor was it based on an immutable characteristic possessed by a discrete and insular minority—the classification that had been the basis for declaring alienage a suspect category in the first place. But the Court voided the statute, saying:

"The important points are that § 661(3) is directed at aliens and that only aliens are harmed by it. The fact that the statute is not an absolute bar does not mean that it does not discriminate against the class."¹⁶

Two proffered justifications were held insufficient to meet the high burden imposed by the strict scrutiny doctrine.

Changing Standards of Review for Alienage Equal Protection Cases

In the following term, however, the Court denied that every exclusion of aliens was subject to strict scrutiny, "because to do so would 'obliterate all the distinctions between citizens and aliens, and thus deprecate the historic values of citizenship.'"¹⁷ Upholding a state restriction against aliens qualifying as state policemen, the Court reasoned that the permissible distinction between citizen and alien is that the former "is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized 'a State's historic power to exclude aliens from participation in its democratic political institutions,' . . . as part of the sovereign's obligation 'to preserve the basic conception of a political community.'"¹⁸

Discrimination by a state against aliens is not subject to strict scrutiny but needs to meet only the rational basis test. It is, therefore, permissible to reserve to citizens offices having the "most important policy responsibilities," a principle drawn from Sugarman, but the critical factor, in this case, is its analysis finding that "the police function is . . . one of the basic functions of government . . . . The execution of the broad powers vested in [police officers] affects members of the public significantly and often in the most sensitive areas of daily life. . . . Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of 'the common occupations of the community.'"¹⁹

Continuing to enlarge the exception, the Court in Ambach v. Norwick²⁰ upheld a bar to qualifying as a public school teacher for resident aliens who have not manifested an intention to apply for citizenship. The governmental function test took on added significance, the Court saying that the distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State.²¹ Thus, governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.²² Teachers, the Court thought, because of the role of public education in inculcating civic values and in preparing children for participation in society as citizens and because of the responsibility and discretion they have in fulfilling that role, perform a task that "go[es] to the heart of representative government."²³ The citizenship requirement need only bear a rational relationship to the state interest, and the Court concluded it clearly did so.

Then, in Cabell v. Chavez-Salido,²⁴ the Court, by a 5-to-4 vote, sustained a state law imposing a citizenship requirement upon all positions designated as peace officers, upholding in context that eligibility prerequisite for probation officers. First, the Court held that the extension of the requirement to an enormous range of people who were variously classified as peace officers did not reach so far nor was it so broad and haphazard as to belie the claim that the state was attempting to ensure that an important function of government be in the hands of those having a bond of citizenship: 

"[T]he classifications used need not be precise; there need only be a substantial fit."²⁵

As to the particular positions, the Court held that they, like the state troopers involved in Foley, sufficiently partake of the sovereign's power to exercise coercive force over the individual that they may be limited to citizens.²⁶

Thus, the Court so far has drawn a tripartite differentiation with respect to governmental restrictions on aliens. First, it has disapproved the earlier line of cases and now would foreclose attempts by the states to retain certain economic benefits, primarily employment and opportunities for livelihood, exclusively for citizens. Second, when government exercises principally its spending functions, such as those with respect to public employment generally and to eligibility for public benefits, its classifications with an adverse impact on aliens will be strictly scrutinized and usually fail. Third, when government acts in its sovereign capacity—when it acts within its constitutional prerogatives and responsibilities to establish and operate its own government—its decisions with respect to the citizenship qualifications of an appropriately designated class of public office holders will be subject only to traditional rational basis scrutiny.²⁷ However, the political function standard is elastic, and so long as disqualifications are attached to specific occupations²⁸ rather than to the civil service in general, as in Sugarman, the concept seems capable of encompassing the exclusion.

When confronted with a state statute that authorized local school boards to exclude from public schools children who were not lawfully present in the United States, the Court determined that an intermediate level of scrutiny was appropriate and found that the proffered justifications did not sustain the classification.²⁹ Because it was clear that the children's status as unlawfully present individuals was relevant to valid government goals, and because the Court had previously held that access to education was not a fundamental interest that triggered strict scrutiny of governmental distinctions relating to education,³⁰ the Court's decision to accord intermediate review was based upon an amalgam of at least three factors. First, alienage was a characteristic that provokes special judicial protection when used as a basis for discrimination. Second, the children were innocent parties who were having a particular onus imposed on them because of the misconduct of their parents. Third, the total denial of education to these children would stamp them with an enduring disability that would harm both them and the state all their lives.³¹ The Court evaluated each of the state's attempted justifications and found none of them satisfying the level of review demanded.³² It seems evident that Plyler v. Doe is a unique case and that, whatever it may stand for doctrinally, a sufficiently similar factual situation calling for the application of its standards is unlikely to arise.

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Footnotes

1. Graham v. Richardson, 403 U.S. 365, 371 (1971). See also Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 420 (1948); Truax v. Raich, 239 U.S. 33, 39 (1915); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Aliens in the United States, including those whose presence is not authorized by the federal government, are persons to whom the Fifth and Fourteenth Amendments apply. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 693 (2001) ([O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.); Plyler v. Doe, 457 U.S. 202, 210–16 (1982). However, the power to regulate immigration has permitted the federal government to discriminate on the basis of alienage, at least so long as the discrimination satisfies the rational basis standard of review. See Mathews v. Diaz, 426 U.S. 67, 79–80, 83 (1976) (holding that federal conditions upon alien eligibility for public assistance were not wholly irrational, and observing that In the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens . . . The fact that an Act of Congress treats aliens differently from citizens does not in itself imply that such disparate treatment is 'invidious.'). Nonetheless, with regard to statutes that touch upon immigration-related matters but do not address the entry or exclusion of aliens, the Court has suggested that if such a law discriminates on the basis of suspect factors other than alienage or national origin a more exacting standard of review may be required. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693–95 (2017) (distinguishing between immigration and citizenship contexts and applying heightened scrutiny to hold that a derivative citizenship statute which discriminated by gender violated equal protection principles).
2. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
3. McGready v. Virginia, 94 U.S. 391 (1877); Patsone v. Pennsylvania, 232 U.S. 138 (1914) (limiting aliens' rights to develop natural resources); Hauenstein v. Lynham, 100 U.S. 483 (1880); Blythe v. Hinckley, 180 U.S. 333 (1901) (restriction of devolution of property to aliens); Terrace v. Thompson, 263 U.S. 197 (1923); Porterfield v. Webb, 263 U.S. 225 (1923); Webb v. O'Brien, 263 U.S. 313 (1923); Frick v. Webb, 263 U.S. 326 (1923) (denial of right to own and acquire land); Heim v. McCall, 239 U.S. 175 (1915); People v. Crane, 214 N.Y. 154, 108 N.E. 427 (1915), aff'd, 239 U.S. 195 (1915) (barring public employment to aliens); Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392 (1927) (prohibiting aliens from operating poolrooms). The Court struck down a statute restricting the employment of aliens by private employers, however. Truax v. Raich, 239 U.S. 33 (1915).
4. 320 U.S. 81, 100 (1943).
5. 323 U.S. 214, 216 (1944).
6. Takahashi v. Fish & Game Comm'n, 334 U.S. 410 (1948).
7. 334 U.S. at 420. The decision was preceded by Oyama v. California, 332 U.S. 633 (1948), which was also susceptible to being read as questioning the premise of the earlier cases.
8. Graham v. Richardson, 403 U.S. 365, 372 (1971).
9. 413 U.S. 634 (1973).
10. 413 U.S. at 647–49. See also Foley v. Connelie, 435 U.S. 291, 296 (1978). Aliens can be excluded from voting, Skatfe v. Rorex, 553 P.2d 830 (Colo. 1976), appeal dismissed for lack of substantial federal question, 430 U.S. 961 (1977), and can be excluded from service on juries. Perkins v. Smith, 370 F. Supp. 134 (D. Md. 1974) (3-judge court), aff'd, 426 U.S. 913 (1976).
11. Sugarman v. Dougall, 413 U.S. 634, 647 (1973). Such state restrictions are not wholly immune from scrutiny under the Equal Protection Clause. Id. at 648.
12. Justice Rehnquist dissented. 413 U.S. at 649. In the course of the opinion, the Court held inapplicable the doctrine of special public interest, the idea that a State's concern with the restriction of the resources of the State to the advancement and profit of its citizens is a valid basis for discrimination against out-of-state citizens and aliens generally, but it did not declare the doctrine invalid. Id. at 643–45. The political function exception is inapplicable to notaries public, who do not perform functions going to the heart of representative government. Bernal v. Fainter, 467 U.S. 216 (1984).
13. In re Griffiths, 413 U.S. 717 (1973). Chief Justice Burger and Justice Rehnquist dissented. Id. at 730, 649 (Sugarman dissent also applicable to Griffiths).
14. Examining Bd. v. Flores de Otero, 426 U.S. 572 (1976). Because the jurisdiction was Puerto Rico, the Court was not sure whether the requirement should be governed by the Fifth or Fourteenth Amendment but deemed the question immaterial, as the same result would be achieved in either case. The quoted expression is from Truax v. Raich, 239 U.S. 33, 41 (1915).
15. 432 U.S. 1 (1977).
16. 432 U.S. at 9. Chief Justice Burger and Justices Powell, Rehnquist, and Stewart dissented. Id. at 12, 15, 17. Justice Rehnquist's dissent argued that the nature of the disqualification precluded it from being considered suspect.
17. Foley v. Connelie, 435 U.S. 291, 295 (1978). The opinion was by Chief Justice Burger and the quoted phrase was from his dissent in Nyquist v. Mauclet, 432 U.S. 1, 14 (1977). Justices Marshall, Stevens, and Brennan dissented. Id. at 302, 307.
18. 435 U.S. at 295–96. Formally following Sugarman v. Dougall, supra, the opinion considerably enlarged the exception noted in that case; see also Nyquist v. Mauclet, 432 U.S. 1, 11 (1977) (emphasizing the narrowness of the exception). Concurring in Foley, 435 U.S. at 300, Justice Stewart observed that it is difficult if not impossible to reconcile the Court's judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which I concurred) that I join the opinion of the Court in this case. On the other hand, Justice Blackmun, who had written several of the past decisions, including Mauclet, concurred also, finding the case consistent. Id.
19. 35 U.S. at 296, 297, 298. In Elrod v. Burns, 427 U.S. 347 (1976), barring patronage dismissals of police officers, the Court had nonetheless recognized an exception for policymaking officers which it did not extend to the police.
20. 441 U.S. 68 (1979). The opinion, by Justice Powell, was joined by Chief Justice Burger and Justices Stewart, White, and Rehnquist. Dissenting were Justices Blackmun, Brennan, Marshall, and Stevens. The disqualification standard was of course, that held invalid as a disqualification for receipt of educational assistance in Nyquist v. Mauclet, 432 U.S. 1 (1977).
21. Ambach v. Norwick, 441 U.S. 68, 75 (1979).
22. 441 U.S. at 75.
23. 441 U.S. at 75–80. The quotation, id. at 76, is from Sugarman v. Dougall, 413 U.S. 634, 647 (1973).
24. 454 U.S. 432 (1982).
25. 454 U.S. at 442.
26. 454 U.S. at 445.
27. 454 U.S. at 438–39.
28. Thus, the statute in Chavez-Salido applied to such positions as toll-service employees, cemetery sextons, fish and game wardens, and furniture and bedding inspectors, and yet the overall classification was deemed not so ill-fitting as to require its voiding.
29. Plyler v. Doe, 457 U.S. 202 (1982). Joining the opinion of the Court were Justices Brennan, Marshall, Blackmun, Powell, and Stevens. Dissenting were Chief Justice Burger and Justices White, Rehnquist, and O'Connor. Id. at 242.
30. In San Antonio School Dist. v. Rodriguez, 411 U.S. 1 (1973), while holding that education is not a fundamental interest, the Court expressly reserved the question whether a total denial of education to a class of children would infringe upon a fundamental interest. Id. at 18, 25 n.60, 37. The Plyler Court's emphasis upon the total denial of education and the generally suspect nature of alienage classifications left ambiguous whether the state discrimination would have been subjected to strict scrutiny if it had survived intermediate scrutiny. Justice Powell thought the Court had rejected strict scrutiny, 457 U.S. at 238 n.2 (concurring), while Justice Blackmun thought it had not reached the question, id. at 235 n.3 (concurring). Indeed, their concurring opinions seem directed more toward the disability visited upon innocent children than the broader complex of factors set out in the opinion of the Court. Id. at 231, 236.
31. 457 U.S. at 223–24.
32. Rejected state interests included preserving limited resources for its lawful residents, deterring an influx of unlawfully present aliens, avoiding the special burden caused by these children, and serving children who were more likely to remain in the state and contribute to its welfare. 457 U.S. at 227–30.