1. Constitutional Law II Alienage Discrimination

2. Fall 2006Con Law II2 Types of Alienage Discrimination National Origin Lawfully admitted aliens Undocumented (“illegal”) aliens EP clause protects “any person within [a state’s] jurisidiction” Does “person” include aliens?

3. Fall 2006Con Law II3 Types of Alienage National Origin Lawfully admitted aliens Who is discriminating  State/local government  Congress  Federal agency

4. Fall 2006Con Law II4 Types of Alienage National Origin Lawfully admitted aliens Who is discriminating  State/local government  Federal agency Undocumented aliens Immigration issues  Congress  State/local government Services, employment

5. Fall 2006Con Law II5 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?

6. Fall 2006Con Law II6 Aliens as a Suspect Class Indicia of Suspectness History of purposeful discrimination Political powerlessness Immutable trait Similarly situated (discrimination is unfair)

7. Fall 2006Con Law II7 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? Yes No

8. Fall 2006Con Law II8 Other Disabilities on Aliens Sugarman v. Dougall (1973) NY law excluding aliens from civil service In re Griffiths (1973) State law excluding aliens from law practice Examining Bd. v. Flores de Otero (1976) Barring aliens from enginerring license Nyquist v. Mauclet (1977) State higher education aid denied to aliens Ct. uses strict scrutiny in each of these EP cases

9. Fall 2006Con Law II9 Bernal v. Fainter (1984) Facts: Aliens ineligible to become notaries in Texas Compelling State Interest Assure sanctity of official documents Least 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?

10. Fall 2006Con Law II10 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

11. Fall 2006Con Law II11 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-inclusive 2.Elective positions or policy functions Discretionary decisionmaking Execution of state policy

12. Fall 2006Con Law II12 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

13. Fall 2006Con Law II13 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

14. Fall 2006Con Law II14 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 federalism Dormant Immigration Clause Hines v. Davidowitz (1941)

15. Fall 2006Con Law II15 Alternative theory for Alienage SS When the federal government issues one of these States may not undermine it

16. Fall 2006Con Law II16 Political Function Exception Political/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)

17. Fall 2006Con Law II17 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 Test Federal Agency Strict scrutiny, unless expressly delegated power over immigration policy matters  Hampton v. Wong (1976) – US Civil Service

18. Fall 2006Con Law II18 Undocumented Aliens Federal action Raises minimal EP scrutiny State 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)

19. Fall 2006Con Law II19 Plyler v. Doe (1982) Standard of Review Suspect Class?  Their status is not a “constitutional irrelevancy”  Undocumented children are “special members of this underclass” almost  Not suspect, or even quasi-suspect, but almost Fundamental right to an education  Not fundamental (for EP purposes), but supremely important fundamental role  Education plays a “fundamental role”  Nature of the burden imposed (means employed) total denial, not just diminished quality

20. Fall 2006Con Law II20 Plyler v. Doe (1982) Standard of Review Introducing “rational basis with bite” ENDS Conservation of scarce resources ($$) MEANS (classification) Undocumented aliens denied public education FIT (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

21. Fall 2006Con Law II21 Plyler v. Doe (1982) Standard of Review Introducing “rational basis with bite” ENDS Deterring Illegal Immigration MEANS (classification) Undocumented aliens denied public education FIT (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?

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