Keeping the Constitution's promise: an argument for greater judicial scrutiny of federal alienage classifications.

AuthorBoyd, Tamra M.

Aliens ... domiciled within our country by its consent, are entitled to all the guaranties for the protection of their persons and property which are secured to native-born citizens.... Arbitrary and despotic power can no more be exercised over them, with reference to their persons and property, than over the persons and property of native-born citizens. They differ only from citizens in that they cannot vote, or hold any public office. As men having our common humanity, they are protected by all the guaranties of the constitution. To hold that they are subject to any different law, or are less protected in any particular, than other persons is, ... to ignore the teachings of our history, the practice of our government, and the language of our constitution. (1)

One might characterize alienage law as confusing and inconsistent. (2) While several identifiable themes emerge from the Supreme Court's alienage cases, it is difficult, if not impossible, to reconcile these themes with one another, and the Court has made little effort to do so. Yet as the resident alien (3) population in the United States grows, it becomes increasingly more important to harmonize alienage law, not only with itself, but with other areas of law. If resident aliens are to comprise a large segment of our society, the judiciary should develop an equitable and consistent framework for evaluating their rights and obligations with regard to the government. Specifically, the judiciary should revisit the question of whether and to what extent the Constitution permits the government to discriminate on the basis of alienage. While some distinctions may be necessary for the preservation of national sovereignty, too many distinctions may result in a caste-like hierarchy that undermines the egalitarian tenets of our society.

Much of the inconsistency in alienage law can be traced to a single issue. The first category consists of laws embracing immigration and naturalization. Immigration laws govern who is permitted to enter and remain within United States borders. Naturalization laws create uniform requirements and procedures which aliens must follow to become United States citizens. These areas of law fall under the federal government's exclusive jurisdiction. The federal government's power to regulate immigration originates in international law, but courts have also held that it is implied in the Constitution. (4) Further, Congress' power to fashion a uniform rule of naturalization is explicitly granted by the Constitution. (5)

The second category consists of all other laws--state and federal--that address resident aliens. These laws generally treat aliens less favorably than citizens and have primarily a domestic focus and impact. They have no practical connection to immigration or foreign policy and affect only the status of aliens residing within U.S. borders. Examples from the past and present include laws that prohibit aliens from owning land, (6) impose greater tax burdens on aliens, (7) bar aliens from certain types of employment, (8) and disqualify aliens from receiving public benefits. (9)

In handling challenges to both kinds of laws, the judiciary attempts to balance the competing goals of national (or state) sovereignty and domestic egalitarianism. With regard to the first category of laws, courts have consistently favored national sovereignty, insisting that the federal government's power to regulate immigration and naturalization is plenary and largely immune from judicial review. (10) Thus, under the so-called "plenary power doctrine," the judiciary declines to apply constitutional analysis to immigration or naturalization legislation. (11) Its rationale is that such legislation implicates sensitive issues of foreign policy and national self-definition, which are best resolved by the political branches of government without interference from the judiciary.

On the other hand, the judiciary's treatment of the second category of laws has been much less consistent. In 1886, the Supreme Court held that aliens are "persons" for the purposes of the Equal Protection Clause (12) and has since invalidated numerous state laws discriminating against them. (13) More recently, the Burger Court began applying "strict scrutiny" to some discriminatory state laws, reasoning that "[a]liens are a ... `discrete and insular' minority for whom ... heightened judicial solicitude is appropriate." (14) However, notwithstanding this logic, the Court refuses to extend this analysis to domestically oriented federal laws that discriminate against resident aliens, applying instead only the most deferential scrutiny. (15)

This inconsistency can be traced to the Supreme Court's blurring of the two regimes under which the federal government exercises power over resident aliens. First, resident aliens are subject to the federal government's immigration power. When the federal government acts in this capacity, its actions are closely intertwined with national sovereignty and foreign policy, and are justifiably insulated from judicial review by the plenary power doctrine.

However, aliens are also subject to the federal government's domestic power, much the same way that citizens are. The federal government acts in this capacity when it makes laws or policies that impact only the domestic status, rights, entitlements, and obligations of its residents, including aliens. Because such federal acts only peripherally concern immigration and foreign policy, the justification for judicial deference to these acts is minimal. Moreover, in the absence of overarching national or international concerns, resident aliens' individual constitutional rights should warrant a high degree of respect. Yet when resident aliens challenge domestic federal policies that discriminate against them, the Supreme Court does something very unusual: It cites the plenary power doctrine, proclaims that the federal government has broad power over immigrants, and refuses to apply regular constitutional analysis. (16) In short, it presumes any federal act that impacts an alien necessarily involves immigration or foreign policy, and that judicial deference is therefore appropriate. The result is a regime in which the federal government may discriminate against aliens with near-impunity and the judiciary will not intervene, (17) notwithstanding its determination in state law cases that aliens are a "discrete and insular minority."

The judiciary has offered several justifications for this inconsistency. First, it points to federalism. Because only the federal government has the power to regulate immigration and make foreign policy, its relationship to resident aliens is different than that of the states. The Court apparently believes this difference grants the federal government greater flexibility to discriminate against resident aliens. Second, the Court points to the fact that most challenges to alienage discrimination are effected by way of the Equal Protection Clause, which does not literally apply to the federal government. However, the Court has acknowledged that the Due Process Clause of the Fifth Amendment contains an equal protection element that limits the federal government's power to discriminate against resident aliens. (18)

Given the relative weakness of these justifications, it appears the Court has other reasons for its lax treatment of federal alienage discrimination. One such factor is probably tradition--Justice Stevens once suggested that "[h]abit, rather than analysis, makes it seem acceptable and natural to distinguish between ... alien and citizen." (19) Another more significant factor appears to be a dwindling interest on the part of the Court in protecting aliens from discrimination. For instance, shortly after declaring alienage a "suspect class" in the state context, the Court developed a "political community" exception, under which state alienage classifications would receive only rationality review. (20) One commentator has suggested that this "exception" threatens to swallow up the rule. (21) Moreover, several members of the current Court appear to believe that the Court erred to begin with in designating alienage as a suspect class. Justices and critics who favor deferential scrutiny for alienage discrimination view alienage as just another benign and legitimate classification that is entirely justified by an originalist construction of the Constitution.

This characterization of alienage discrimination unfortunately ignores history. In the past, alienage discrimination was typically motivated by racism, xenophobia, irrational stereotypes, and/or "a bare desire to harm a politically unpopular group." (22) Moreover, times have not changed so much that we can complacently presume that all contemporary alienage discrimination is legitimately motivated. (23) Unconstitutionally motivated discrimination remains an ever-present possibility due to aliens' lack of political power and the fact that such a high percentage of modern immigrants are nonwhite. (24) As racial classifications fall into disfavor with the judiciary, those with improper motives may instead turn to alienage classifications, which will receive minimal scrutiny as long as they are employed by the federal government.

This Note argues that, in light of the overlap between alienage and race discrimination, more exacting scrutiny of domestic federal alienage discrimination is required. The judiciary should make an effort to bring alienage jurisprudence in line with other equal protection jurisprudence, which deplores castes and discourages discrimination based on characteristics irrelevant to the purpose of the law at issue. As long as the judiciary avoids meaningful review of alienage discrimination, resident aliens will remain a substantial nonvoting subclass of society, completely vulnerable to the majority's whims, animus, paranoia, and improper motives.

Part I of this paper discusses the Framers'...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT