Constitutional Law II

Alienage Discrimination

Fall 2006 Con Law II 2

Types of Alienage Discrimination

National OriginLawfully admitted aliensUndocumented (“illegal”) aliens

EP clause protects “any person within [a state’s]

jurisidiction”Does “person” include

aliens?

Fall 2006 Con Law II 3

Types of AlienageNational OriginLawfully admitted aliens Who is discriminating

State/local government Congress Federal agency

Fall 2006 Con Law II 4

Types of AlienageNational OriginLawfully admitted aliens Who is discriminating

State/local government Federal agency

Undocumented aliens Immigration issues

Congress State/local government

Services, employment

Fall 2006 Con Law II 5

Graham v. Richardson (1971)

Welfare classification Citizens/long-term resident aliens (benefited) Short-term resident aliens (burdened)ENDS Conservation of state’s limited fiscal resources Who might the state exclude from benefits?

Citizens of other states Short-term state citizens Legal aliens Illegal aliens

What standard of review applies, and why?

Fall 2006 Con Law II 6

Aliens as a Suspect ClassIndicia of Suspectness History of purposeful discrimination Political powerlessness Immutable trait Similarly situated (discrimination is

unfair)

Fall 2006 Con Law II 7

Graham v. Richardson (1971)

ENDS Scrutiny Is conservation of a state’s limited fiscal

an adequate state interest?MEANS Scrutiny Aren’t aliens a special class, undeserving

of sharing in state’s largesse? Are they members of the economic

community? Are they members of the political community?

YesNo

Fall 2006 Con Law II 8

Other Disabilities on AliensSugarman v. Dougall (1973) NY law excluding aliens from civil serviceIn re Griffiths (1973) State law excluding aliens from law practiceExamining Bd. v. Flores de Otero (1976) Barring aliens from enginerring licenseNyquist v. Mauclet (1977) State higher education aid denied to aliens

Ct. uses strict scrutiny in each of these EP cases

Fall 2006 Con Law II 9

Bernal v. Fainter (1984)Facts: Aliens ineligible to become notaries in TexasCompelling State Interest Assure sanctity of official documentsLeast Restrictive (discriminatory) Means Is class (aliens) overinclusive?

Court says no: applies only to a narrow job category

Is class underinclusive? Are aliens the only ones who pose a risk of not

knowing Texas law?

Fall 2006 Con Law II 10

Bernal v. Fainter (1984)Are there any jobs for which aliens are not suited? Political office? Official policymaking functions?Political Function Exception Positions intimately related to the process

of democratic self-government Foley v. Connelie (1978)

Police force limited to US citizens Fails strict scrutiny not subject to strict scrutiny

Fall 2006 Con Law II 11

Political Function Exception to SS

RB applied to alien classification involving direct political participatioin (voting, serving) & “important non-elective executive, legislative

and judicial positions” that formulate, execute or review public policy

Cabell v. Chavez-Salido (1982)1. Specificity of classification (narrowly tailored)

Significantly over- or under-inclusive2. Elective positions or policy functions

Discretionary decisionmakingExecution of state policy

Fall 2006 Con Law II 12

Origin of Political Function Test

Foley v. Connelie (1978) Police satisfy test because they exercise a

“very high degree of judgment and discretion” and they enforce state power against citizens

Imagine how a citizen must feel when in the custody and control of an alien? Any xenophobia here?

Ambach v. Norwick (1979) School teachers – governmental function?

Yes, instrumental to the inculcation of civic virtue and citizen values

Fall 2006 Con Law II 13

Origin of Political Function Test

Why does standard of review change (all the way down to RB)? Because of the strength of the state’s

interest? Because of the nature of the state’s

interest? Definition of political community State sovereignty

What difference between ruling SS satisfied and lowering to RB? Greater variety of state laws upheld

Fall 2006 Con Law II 14

Alternative theory for Alienage SS

Federalism Federal gov’t admits aliens w/ rights of partici-

pation in economic & social life of nation State regulation of aliens frustrates federal purpose

But, preempting states in employment choices could impact their sovereign prerogatives Note: Foley & Ambach decided twixt Usery & Garcia

Not really based on EP analysis but federalismDormant Immigration Clause Hines v. Davidowitz (1941)

Fall 2006 Con Law II 15

Alternative theory for Alienage SS

When the federal government issues one of these

States may not undermine it

Fall 2006 Con Law II 16

Political Function ExceptionPolitical/governmental functions Police (Foley v. Connelie) Public school teachers (Ambach v.

Norwick) Probation officer (Cabell v. Chavez-

Salido)Not political functions Probation officer (Bernal v. Fainter) Lawyer (In re Griffiths) Notary Public (Bernal v. Fainter)

Fall 2006 Con Law II 17

Alien Discrimination by Fed Gov’t

Congress - Plenary Powers Doctrine Naturalization & Immigration matters

Concommitant of sovereignty & foreign affairs Adminstrative & Economic matters

Mathews v. Diaz (1976) – Medicaid Rational Basis TestFederal Agency Strict scrutiny, unless expressly delegated

power over immigration policy matters Hampton v. Wong (1976) – US Civil Service

Fall 2006 Con Law II 18

Undocumented AliensFederal action Raises minimal EP scrutinyState action “Illegal” aliens - even more of a suspect

class than admitted aliens But don’t raise the same federalism concerns or do they?

Undocumented aliens are an integral part of the US economy, which the federal gov’t tacitly encourages,

as a cheap source of labor (without any rights)

Fall 2006 Con Law II 19

Plyler v. Doe (1982)Standard of Review Suspect Class?

Their status is not a “constitutional irrelevancy” Undocumented children are “special members of

this underclass” Not suspect, or even quasi-suspect, but almostalmost

Fundamental right to an education Not fundamental (for EP purposes), but

supremely important Education plays a “fundamental rolefundamental role” Nature of the burden imposed (means employed)

total denial, not just diminished quality

Fall 2006 Con Law II 20

Plyler v. Doe (1982)Standard of Review

Introducing “rational basis with bite”ENDS

Conservation of scarce resources ($$)MEANS (classification)

Undocumented aliens denied public educationFIT (how well does this classification serve state interest)

Relegating members of work force to illiteracy can hardly be in the state’s economic interest Poor fit

Fall 2006 Con Law II 21

Plyler v. Doe (1982)Standard of Review Introducing “rational basis with bite”ENDS Deterring Illegal ImmigrationMEANS (classification) Undocumented aliens denied public educationFIT (how well does this classification serve state interest) Illegal immigration is in pursuit of economic

opportunity, not education, health care, etc. Poor fit.

Is this a permissible state objective?

Fall 2006 Con Law II 22