Rights of Non-Citizens Under the Equal Protection Clause
The Issue:  To what extent does the Equal Protection Clause protect legal aliens?  Do the states have
 greater power to exclude non-citizens from jobs that "go the heart of representative government"?

Alienage classifications are those which treat citizens and non-citizens differently.  Typically, of course, the classifications have the effect of denying a benefit or an opportunity to non-citizens that is generally available to citizens.

The Constitution affords protection to citizens in ways that it doesn't for non-citizens.  The privileges and immunities clause of section 1 of the Fourteenth Amendment, for example, provides: "No State shall make or enforce any law which shall abridge the privileges and immunities of CITIZENS of the United States."  Citizenship is also a prerequisite for voting under the 15th and 19th Amendments as for election to Congress or the Presidency.

Nonetheless, the Equal Protection Clause (as well as the Due Process Clause) makes no distinction in its text between the protections it affords citizens and non-citizens.  "No State shall deny
to any PERSON...the equal protection of the laws."  Government does, of course, sometimes draw distinctions between citizens and non-citizens, thus raising the issue of what sort of judicial scrutiny should be applied to these classifications.  The answer the Supreme Court has given has changed over the years and has become complicated--more complicated than many commentators feel is desirable.  (Commentators have suggested that consistent application of middle-tier scrutiny (that is, insistence that the government show that its classification substantially furthers an important interest) would explain virtually all case outcomes, but the test that the Court has said it is employing has varied.)

In Graham v Richardson (1971) and Application of Griffiths (1973), the Court subjected state laws disadvantiging aliens to strict scrutiny.  In Graham, the Court struck down a law that conditioned the payment of state welfare benefits on citizenship.   Preserving limited state resources for citizens was not found to be a sufficiently compelling interest.  In Application of Griffiths, the Court considered a state law that restricted bar membership to citizens.  Again, a majority of the Court applied strict scrutiny to strike down the law, finding citizenship to not be closely related to one's ability to fulfill the responsibilities of a lawyer. 

In the late 1970s, the Court carved out an exception to the rule of strictly scrutinizing alienage classifications.  Specifically, the Court held in a series of cases beginning in 1978 that the rational basis test should apply when alienage classifications are "bound up with the operation of the State as a governmental entity."  Using minimal scrutiny, the Court upheld state laws that excluded aliens from the police force (in 1978) and work as probation officers (in 1982).  In the 1979 case of Ambach v Norwick, the Court upheld a law requiring that public school teachers, because of their part of a governmental function and their role in inculcating American values, be citizens.  Proving, however, that the "political function" exception is not limitless, the Court in the 1984 case of Bernal v Fainter, struck down a state law prohibiting aliens from becoming notary publics.

Finally, there is the question of what standard of review applies to alienage classifications made by the federal government.  That the standard is something less than strict scrutiny seems apparent from the Court's 1976 decision in the case of Matthews v Diaz.  In Matthews, the Court upheld a federal law requiring that aliens (but not citizens) be in the United States for five continuous years before becoming eligible for federal medical insurance.  The Court suggested that Congress should be given considerable deference in this sort of line-drawing.

The Equal Protection Clause and Illegal Aliens

While all of the cases discussed above apply to legal aliens (persons legally residing in the United States), the Court has also found the Equal Protection Clause to protect illegal aliens.  In Plyler v Doe (1982), the Court struck down a Texas law that denied public education to the children of illegal aliens.  The Court concluded, noting the heavy costs of creating an underclass of uneducated minors, that the law lacked a rational basis.  See:

Graham v Richardson (1971)
Application of Griffiths (1973)
Ambach v Norwick (1979)
Bernal v Fainter (1984)
Matthews v Diaz (1976)

The "green card" of a legal (permanent resident) alien
 actually has very little green.

Who Is a Citizen?
Citizenship is defined in section 1 of the 14th Amendment.  Section 1 provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside."  In addition, Article 1 gives Congress the power to establish standards for naturalization of aliens.


1. Does it make sense to vary the level of judicial scrutiny depending upon the nature of the job that aliens are excluded from?
2. Does it make sense to vary the level of judicial scrutiny depending upon whether the classification is made by a state government or the federal government?
3. What results in the cases above if the Court had consistently applied a "middle-tier scrutiny" that demanded the government show that its classification is reasonably related to a significant (or subtantial) interest?
4. Could the concerns about an alien public school teacher inadequately inculcating American values be addressed in some way other than an outright exclusion from the job--requiring all teachers to pass certain tests on American laws and traditions, for example?
5.  To what extent are laws excluding legal aliens from certain government jobs based on an economic desire to save them for citizens, as opposed to a concern that aliens are, as a group, unqualified for the positions?
6.  Does it make sense to hold that all public school teachers fall within the "political function" exception while lawyers, as "officers of the court," do not?

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