Alienage Classification

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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.

An alien, whether present lawfully, unlawfully, temporarily, or permanently, is a “person” within the meaning of the Equal Protection Clause and receives its protection.1 One of the earliest equal protection decisions, Yick Wo v. Hopkins,2 involved the constitutionality of a municipal ordinance that granted officials absolute and unrestrained authority to grant licenses for laundries.3 The Supreme Court found the officials were employing their authority to deny permission to resident Chinese aliens.4 The Court struck down the facially neutral city ordinance as an equal protection violation, stating that the distinction was based on “no reason . . . except hostility to the race and nationality. . . . ” 5

In many subsequent cases after Yick Wo until 1948, the Court allowed less favorable treatment of aliens whenever the alienage classification related to a “special public interest.” 6 In particular, the Court upheld state laws forbidding aliens from taking possession of natural resources, citing a state’s significant legitimate interest in reserving use of these resources for its citizens.7 The Court also sustained laws prohibiting the ownership of land by aliens and the indirect control of lands by aliens.8 By contrast, in Truax v. Reich,9 the Court struck down an Arizona law that required employers with more than five employees to hire at least 80% qualified voters or native-born citizens.10 According to the Court, “No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment.” 11

The Court eroded the “special interest” doctrine in the 1948 decision Takahashi v. Fish & Game Commission,12 which involved a challenge brought by a Japanese alien (then ineligible for U.S. citizenship under federal law) to a state statute barring issuance of commercial fishing licenses to persons “ineligible to citizenship.” 13 The Court struck down the California law under the Fourteenth Amendment, holding that “'ownership’ [of fish] is inadequate to justify California in excluding any or all aliens who are lawful residents of the state from making a living by fishing in the ocean off its shore while permitting all others to do so.” 14 Writing for the Court, Justice Hugo Black reasoned that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” 15

The Court began applying a more explicitly rigorous standard of review to alienage classification statutes in the 1970s. In the 1971 decision Graham v. Richardson,16 the Supreme Court struck down state statutes that either wholly disqualified resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility.17 The Court announced that it would apply strict scrutiny to alienage classifications, reasoning that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close scrutiny.” 18

Other decisions applying strict scrutiny soon followed. In the 1973 decision Sugarman v. Dougall,19 the Court voided a state law making citizenship a requirement for any position in the competitive class of a state civil service system.20 According to the Court, a state’s power “to preserve the basic conception of a political community” enables it to prescribe the qualifications of its officers and voters,21 and this power would extend “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.” 22 However, a flat ban on alien employees for much of the state’s career public service, including both policy-making and nonpolicy-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.23 In In re Griffiths,24 the Court struck down a state law that excluded aliens from being licensed as attorneys.25 The Court reaffirmed that strict scrutiny was the proper test for distinctions based on alienage and reasoned that it was impermissible under the Fourteenth Amendment for states to require citizenship as a condition of practicing law.26 Likewise, the Court in Examining Board v. Flores de Otero27 invalidated a Puerto Rico statute that barred licensing aliens to practice engineering.28 Additionally, in Nyquist v. Mauclet,29 the Supreme Court applied strict scrutiny to invalidate a New York law that restricted the receipt of scholarships and similar financial support to U.S. citizens, those who had applied for citizenship, and those who declared an intent to apply for citizenship as soon as they became eligible.30

In the following Term, however, the Supreme Court held that not 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.’” 31 Accordingly, the Court has carved out an exception and applies rational basis review to alienage classifications related to self-government and the democratic process. In Foley v. Connelie,32 the Court upheld a state law that excluded aliens from appointment as members of the state police force.33 The Court reasoned that the police function discharged “a most fundamental obligation of government to its constituency” and necessarily cloaked the police with substantial discretionary powers.34 Continuing to enlarge the exception, the Court in Ambach v. Norwick35 sustained a state law barring resident aliens who had not manifested an intention to apply for citizenship from employment as public school teachers.36 The Court applied Foley, declaring that rational basis review was appropriate.37 Teachers, the Court observed, perform a task that “go[es] to the heart of representative government” because of the role of public education in cultivating civic values, as well as the responsibility and discretion they have in fulfilling that role.38

Then, in Cabelle v. Chavez-Salido,39 the Supreme Court sustained a state law imposing a citizenship requirement upon all positions designated as “peace officers” as it applied to employment as a probation officer.40 Applying rational basis review, the Court reasoned that probation officers both serve as law enforcement and perform an educational function for those they supervise.41 In Bernal v. Fainter,42 however, the Supreme Court invalidated a Texas law that required U.S. citizenship to become a notary public.43 The Court declined to apply the exception and instead reviewed the law under strict scrutiny. The Court distinguished notaries from employees who “are invested either with policymaking responsibility or broad discretion in the execution of public policy that requires the routine exercise of authority over individuals.” 44

Thus, the Court has so far made three distinctions when analyzing equal protection challenges based on alienage. First, it has disapproved of the earlier line of cases that allowed aliens to be treated in a less favorable manner whenever the classification is based on a “special public interest,” and now would foreclose attempts by the states to retain certain economic benefits, primarily employment and opportunities for livelihood, exclusively for citizens. Second, subject to a limited exception, classifications with an adverse impact on aliens will generally be subject to strict scrutiny and usually fail. Third, some alienage classifications related to self-government and the democratic process need only satisfy rational basis review, but typically only when those classifications relate to positions that involve policy-making responsibility or the exercise of authority over others.

The Supreme Court has addressed one instance involving the application of the Equal Protection Clause in the more specific context of unlawfully present aliens. In Plyler v. Doe,45 the Court considered a Texas education law that withheld from local school districts any state funds for the education of children not “legally admitted” to the country and authorized local school districts to deny enrollment to these children.46 The Court did not explicitly articulate a level of scrutiny but rejected the application of strict scrutiny, stating that “[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a constitutional irrelevancy. Nor is education a fundamental right.” 47 Instead, the Court appeared to apply intermediate scrutiny in evaluating discrimination against unlawfully present alien children in regard to education.48 The Court held the Texas law unconstitutional under the Equal Protection Clause, rejecting Texas’s purported interests in preserving limited resources for its lawful residents, deterring an influx of unlawfully present aliens, avoiding the special burden imposed by these children, and serving children who were more likely to remain in the state and contribute to its welfare.49 The total denial of an education, according to the Court, would stamp the children with an “enduring disability” that would permanently harm both them and the state.50

1: Plyler v. Doe, 457 U.S. 202, 210–16 (1982) (emphasizing that “[a]liens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments” ); Graham v. Richardson, 403 U.S. 365, 371 (1971); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); see also 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.” ).
2: 118 U.S. 356 (1886).
3: Id. at 367–68.
4: Id. at 374.
5: Id.
6: Heim v. McCall, 239 U.S. 175, 194 (1915) (upholding New York law that prohibited the employment of aliens on public works contracts for the construction of subways); Crane v. New York, 239 U.S. 195, 198 (1915) (affirming New York law that made it a crime to employ aliens on public works contracts).
7: See Patsone v. Pennsylvania, 232 U.S. 138 (1914) (killing of wild game); McCready v. Viriginia, 94 U.S. 391, 396 (1876) (planting of oysters).
8: Terrace v. Thomason, 263 U.S. 197, 217 (1923) (finding that aliens were distinguishable as to land ownership and use for reasons other than hostility to race); Porterfield v. Webb, 263 U.S. 225, 232–33 (1923) (sustaining California statute prohibiting the use of land by ‘ineligible’ aliens); Webb v. O’Brien, 263 U.S. 313, 322 (1923) (validating law prohibiting food crop contracts with aliens); Frick v. Webb, 263 U.S. 326, 334 (1923) (approving of law restricting transfer to aliens of shares of a land owning corporation).
9: 239 U.S. 33 (1915).
10: Id. at 40–43. The Court also extended the “special public interest” doctrine to exclude aliens from receiving occupational licenses. See Clarke v. Deckebach, 274 U.S. 392, 396–97 (1927) (ruling that states could prevent aliens from being licensed to operate pool halls).
11: Truax, 239 U.S. at 43. The Court partially relied on preemption principles, citing the federal government’s authority to control immigration. The Court stated that “[t]he assertion of an authority to deny to aliens the opportunity to earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode.” Id. at 42.
12: 334 U.S. 410 (1948).
13: Id. at 413–14.
14: Id. at 421. The Takahashi decision was preceded by Oyama v. California, 332 U.S. 633 (1948), in which the majority seemingly questioned in dicta a distinction between citizens and aliens in the application of a land law under the Fourteenth Amendment, but ultimately declined to fully address the equal protection arguments. See id. at 646–47. Justice Hugo Black concurred, and would have decided the case “on the broader grounds that the basic provisions of the California Alien Land Law violate the equal protection clause of the Fourteenth Amendment and conflict with federal laws and treaties governing the immigration of aliens and their rights after arrival in this country.” Id. at 647 (Black, J., concurring, joined by Douglas, J.).
15: Takahashi, 334 U.S. at 420. As in Truax, the Court in part relied upon principles of preemption, explaining that “[s]tate Laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with the constitutionally derived power to regulate immigration.” Id. at 419.
16: 403 U.S. 365 (1971).
17: Id. at 372.
18: Id. at 371–72. Citing Takahashi, the Graham court also held that the law was invalid because it interfered with the federal government’s exclusive authority over immigration. Id. at 378 (affirming that “state laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to Federal Government” ). In other words, once the federal government allows an alien to enter the United States, a state cannot discriminate against those present.
19: 413 U.S. 634 (1973).
20: Id. at 646.
21: Id. at 647–49.
22: Id. at 647.
23: Id. at 646–47. The majority held the “special public interest” doctrine had no applicability in this case, but it did not invalidate the doctrine as a general matter. Id. at 643–45. In his dissenting opinion, Justice William Rehnquist argued that the proper inquiry was “whether any rational justification exists for prohibiting aliens from employment in the competitive civil service and from admission to a state bar,” and would have rejected the notion of alienage as a suspect classification triggering close judicial scrutiny on the basis that the Fourteenth Amendment was intended “to prohibit states from invidiously discriminating by reason of race.” Id. at 649, 658 (Rehnquist, J., dissenting).
24: 413 U.S. 717 (1973).
25: Id. at 729.
26: Id. at 721–22.
27: 426 U.S. 572 (1976).
28: Id. at 601. Because the statute was enacted by Puerto Rico, the Court considered whether the Fifth or Fourteenth Amendments should govern, but ultimately deemed the question immaterial as the same result would be achieved under either amendment. Id.
29: 432 U.S. 1 (1977).
30: Id. at 7–12.
31: Foley v. Connelie, 435 U.S. 291, 295 (1978).
32: Foley, 436 U.S. 291
33: Id. at 299–300.
34: Id. at 297.
35: 441 U.S. 68 (1979).
36: Id. at 80–81
37: Id. at 74–75.
38: Id. at 76–80 (quoting Sugarman v. Dougall, 413 U.S. 634, 647 (1973)) (internal quotation marks omitted).
39: 454 U.S. 432 (1982).
40: Id. at 443–44. In a dissenting opinion, Justice Harry Blackmun would have applied strict scrutiny review instead of rational basis review. Id. at 454. He stated, “[A] state statute that bars aliens from political positions lying squarely within the political community nevertheless violates the Equal Protection Clause if it excludes aliens from other public jobs in an unthinking or haphazard manner. The statutes at issue here represent just such an unthinking and haphazard exercise of state power.” Id.
41: Id. at 445–46 ( “[T]hey, like the state troopers in Foley, sufficiently partake of the sovereign’s power to exercise coercive force over the individual that they may be limited to citizens.” ).
42: 467 U.S. 216 (1984).
43: Id. at 225.
44: Id. at 226.
45: 457 U.S. 202 (1982).
46: Id. at 205.
47: Id. at 223.
48: See id. at 223–224 (explaining that “the discrimination contained in [the challenged law] can hardly be considered rational unless it furthers some substantial goal of the state” ); see also id. at 237 (Powell, J, concurring) (stating that “[o]ur review in a case such as these is properly heightened,” and citing to Craig v. Boren, 429 U.S. 1980 (1976), which articulated the intermediate scrutiny standard). But see id. at 252–53 (Burger, C.J., dissenting) (arguing that rational basis review and not heightened scrutiny was appropriate because there was no suspect classification and no fundamental right).
49: Id. at 227–30.
50: Id. at 230 (remarking that “[i]t is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime” ); see also id. at 238–39 (Powell, J., concurring) (emphasizing the blamelessness of the children who were being denied an education because of the misconduct of their parents).