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.
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
Graham v Richardson (1971)
Application of Griffiths (1973)
Ambach v Norwick (1979)
Bernal v Fainter (1984)
Matthews v Diaz (1976)
1. Does it
make sense to vary the level of judicial scrutiny depending upon the
nature of the job that aliens are excluded from?