Alienage and Nationality.

“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.”1854 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.1855 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.1856 But, in Hirabayashi v. United States,1857 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,1858 classifications based upon race and nationality were said to be suspect and subject to the “most rigid scrutiny.” 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 resident alien Japanese.1859 “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.”1860

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.1861 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.

In Sugarman v. Dougall,1862 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,1863 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.”1864 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.1865

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.1866 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 voided.1867

In Nyquist v. Mauclet,1868 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 became 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. “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.”1869 Two proffered justifications were held insufficient to meet the high burden imposed by the strict scrutiny doctrine.

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.’ ”1870 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.’ ”1871 Discrimination by a state against aliens is not subject to strict scrutiny, but need 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 Sugar-man, 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.’ . . . ”1872

Continuing to enlarge the exception, the Court in Ambach v. Norwick1873 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.”1874 Thus, “governmental entities, when exercising the functions of government, have wider latitude in limiting the participation of noncitizens.”1875 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.”1876 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,1877 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.”1878 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.”1879

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.1880 However, the “political function” standard is elastic, and so long as disqualifications are attached to specific occupations1881 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 alien children who were not legally admitted to 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.1882 Because it was clear that the undocumented status of the children 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,1883 the Court’s decision to accord intermediate review was based upon an amalgam of at least three factors. First, alien-age 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 an education to these children would stamp them with an “enduring disability” that would harm both them and the state all their lives.1884 The Court evaluated each of the state’s attempted justifications and found none of them satisfying the level of review demanded.1885 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 application of its standards is unlikely to arise.


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, 582 U.S. ___, No. 15–1191, slip op. 14–17 (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). [Back to text]
Yick Wo v. Hopkins, 118 U.S. 356 (1886). [Back to text]
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, 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). [Back to text]
320 U.S. 81, 100 (1943). [Back to text]
323 U.S. 214, 216 (1944). [Back to text]
Takahashi v. Fish & Game Comm’n, 334 U.S. 410 (1948). [Back to text]
334 U.S. at 420. The decision was preceded by Oyama v. California, 332 U.S. 633 (1948), which was also susceptible of being read as questioning the premise of the earlier cases. [Back to text]
Graham v. Richardson, 403 U.S. 365, 372 (1971). [Back to text]
413 U.S. 634 (1973). [Back to text]
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). [Back to text]
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. [Back to text]
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). [Back to text]
In re Griffiths, 413 U.S. 717 (1973). Chief Justice Burger and Justice Rehnquist dissented. Id. at 730, and 649 (Sugarman dissent also applicable to Griffiths). [Back to text]
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). [Back to text]
432 U.S. 1 (1977). [Back to text]
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. [Back to text]
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. [Back to text]
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. [Back to text]
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. [Back to text]
411 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). [Back to text]
Ambach v. Norwick, 441 U.S. 68, 75 (1979). [Back to text]
441 U.S. at 75. [Back to text]
441 U.S. at 75–80. The quotation, id. at 76, is from Sugarman v. Dougall, 413 U.S. 634, 647 (1973). [Back to text]
454 U.S. 432 (1982). [Back to text]
454 U.S. at 442. [Back to text]
454 U.S. at 445. [Back to text]
454 U.S. at 438–39. [Back to text]
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. [Back to text]
Plyler v. Doe, 457 U.S. 432 (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. [Back to text]
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. [Back to text]
457 U.S. at 223–24. [Back to text]
Rejected state interests included preserving limited resources for its lawful residents, deterring an influx of illegal 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. [Back to text]