Oxford Companion to the US Supreme Court:

Alienage and Naturalization

Home > Library > Law & Legal Issues > US Supreme Court The constitutional law of alienage and naturalization reflects broader themes in American political, economic, and social history. The French Revolution, for an early example, took place just after ratification of the Constitution of 1787, and produced fears of foreign meddling in domestic affairs. The Alien and Sedition Acts of 1798, passed by federalists over strong JeffersonianRepublican opposition, gave the president broad power to detain or expel aliens. The government made no arrests under the Alien Act, and President Thomas Jefferson pardoned the few Republican editors jailed under the Sedition Act. Yet fear inspired by these laws prompted the Virginia and Kentucky Resolutionsclassic statements of states' rightsand provided ammunition for the Jeffersonians in the election of 1800 (see State Sovereignty and States' Rights). In the late nineteenth century, economic pressures resulting from industrial development combined with fear of foreign political ideas and powerful nativist sentiments to produce a backlash against aliens and immigration. The Fourteenth Amendment's Equal Protection Clause became the centerpiece in the constitutional law of alienage. It limited, if unevenly, the powers of the states to base classifications on citizenship, while the federal government's constitutional prerogatives over aliens and the naturalization process remained substantial (see Federalism). Recent alienage cases deal with eligibility for governmental benefits, public sector employment, and due process issues, and reflect the rise of the welfare state. Since alienage and naturalization alike deal with the status of noncitizens, it is useful to begin by briefly considering the constitutional law of citizenship. To define alienage as the lack of citizenship raises the question of how the Constitution establishes who is a citizen. While the Constitution requires that representatives and senators be citizens and that the president be a natural born citizen, the document provides no definition of United States citizenship. The requirement that the president be a natural born citizen implies that the framers recognized the principle of jus soli. According to this doctrineliterally meaning right of land or groundcitizenship results from birth within a national territory. This contrasts with jus sanguinis, or right of blood, according to which citizenship derives from descent. Citizenship based on an ascriptive characteristic like place of birth was medieval and in conflict with modern principles of liberal political theory. Birthright citizenship, however, offered several practical advantages: it established a clear basis for property rights; it promoted immigration; it avoided jurisdictional conflicts; and it eased fears of massive expatriation in wartime. Only after the Civil War, however, did the principle of jus soli become constitutional law. In Scott v. Sandford (1857), Chief Justice Roger B. Taney wrote that the slave Dred Scott, who had been taken by his master from the slave state of Missouri to the free state of Illinois and into Wisconsin Territory, could not sue for his freedom in federal court since no one of African descent, freeman or slave, could be a citizen of the United States (see Slavery). To reverse Scott,

the Fourteenth Amendment (1868) declared: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. The Fourteenth Amendment not only defined citizenship but also gave aliens constitutional rights. This is because the Fourteenth Amendment's due process and equal protection clauses apply not just to citizens, but to all persons. In the Slaughterhouse Cases (1873), Justice Samuel F. Miller observed that the Civil War Amendments (the Thirteenth, Fourteenth, and Fifteenth) were enacted primarily to secure the rights of the newly freed slaves (although only the Fifteenth speaks in racespecific terms). Miller added, however, that these amendments did not necessarily apply to AfricanAmericans alone. Miller wrote that, for example, the Thirteenth Amendment would not allow slavery to develop in the western territories under the Chinese coolie Labor system (p. 72). Justice Miller rightly noted the problems of the Chinese coolie. The federal government had initially welcomed Chinese immigration, beginning with the California Gold Rush of 1848. These immigrants provided labor to build the transcontinental railroad. With the line completed in 1869, a wave of European immigrants flooded the West and labor was no longer scarce. Chinese aliens became victims of harsh and sometimes violent discrimination. A case from San Francisco, Yick Wo v. Hopkins (1886), testing an overtly neutral law designed to exclude Chinese laundries, became a constitutional landmark. Taking up Justice Miller's remarks in the Slaughterhouse Cases, a unanimous Supreme Court ruled that the equal protection clause of the Fourteenth Amendment applied to aliens. The Yick Wo holding was especially significant since federal law prohibited Chinese aliens from becoming citizens. In order to analyze the civil rights of aliens after Yick Wo, it is useful to distinguish the scope of federal power versus state authority. While aliens have used the Fourteenth Amendment to nullify state regulations, the Supreme Court has recognized broad federal authority over noncitizens. Consider first the cases in which the states have enacted laws based on alienage. While the states have police power to regulate health, safety, welfare, and morals, Yick Wo held that these powers were subject to the federal equal protection clause. In Truax v. Raich (1915), for instance, the Court invalidated a state law that required 80 percent of workers in most businesses to be citizens. This law had the impermissible effect of freezing aliens out of the marketplace. Yet court decisions did not always favor aliens. Just a year earlier, in Patsone v. Pennsylvania (1914), the justices upheld a state law forbidding aliens to hunt game. Justice Oliver Wendell Holmesa proponent of the rational man test in his Lochner v. New York (1905) dissent wrote for a unanimous court that a state could reasonably restrict aliens as a class in order to preserve natural resources for citizens (see Rule of Reason). Similarly, the Court upheld state laws limiting the right of Japanese aliens to own or rent land in Terrace v. Thompson (1923). With some irony, the Japanese Exclusion Cases led to expanded equal protection rights for aliens. Korematsu v. United States (1944) upheld the emergency relocation, after Pearl Harbor, of persons of Japanese ancestry living on the West Coast (see Japanese Relocation). Though he

accepted the military's reasons for this extreme action, Justice Hugo L. Black wrote that racial classifications were inherently suspect and must be subject to the most rigid scrutiny (see Strict Scrutiny; Suspect Classification). While the classification at issue was racial, Black emphasized that even citizens like Korematsulet alone alienscould be subject to race based exclusion during a wartime emergency (see Race and Racism). Though never overruled, Korematsus approval of racially discriminatory treatment in emergencies has surely been displaced by more recent developments in equal protection law. During the 1970s, the Burger Court applied Korematsus strict scrutiny to state regulations affecting aliens. Under this test, reversing the normal presumption that a challenged law is constitutional, the state bears the burden of proof to show that a law employing a suspect classification serves compelling governmental interest. The cases deal chiefly with access to governmental benefits and public employment. In Graham v. Richardson (1971), the Court held that alienage, like race, was a suspect classification and applied strict scrutiny in ruling that a state could not deny welfare benefits to aliens. Arizona's interest in preserving limited funds for its citizens (a rationale that parallels Patsone) did not justify limiting benefits. In In re Griffiths (1973), also applying strict scrutiny, the Court held that states may not prohibit resident aliens from practicing law. Two years later, in Sugarman v. Dougall (1973), the Court created an important category of exceptions to Graham. The opinion by Justice Harry Blackmun held that a state could not make aliens ineligible for certain state civil service jobs. Dictum, however, suggested that aliens could be barred from elective and even some nonelective posts in state government. Blackmun wrote that aliens could be kept from positions that involve the formulation, execution, or review of broad public policy since these political functions go to the heart of representative government. In Foley v. Connelie (1978), however, the Court only used ordinary scrutiny to uphold a New York regulation that prevented aliens from becoming state troopers, since law officers exercise considerable discretion in enforcing public policy. To apply the high hurdle of strict scrutiny to every alienage classification, Chief Justice Burger wrote in Foley, would obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship (p. 295). Where the state's vital public functions are involved, a state need show only a rational basis for an alienage classification. A majority followed Foleys political functions analysis to uphold alienage restrictions for public school teachers in Ambach v. Norwick (1979) and for deputy probation officers in Cabell v. ChavezSalido (1982). But the Court rejected similar eligibility requirements for notaries public in Bernal v. Fainter (1984). In Plyler v. Doe (1982), the Court applied yet another equal protection standardintermediate or heightened scrutinyto alienage classifications. Unlike the cases discussed so far, in which the noncitizens involved were legally in the country, Plyler dealt with the children of illegal aliens. Texas had allowed its school districts to deny a free public education to the children of illegals. While a Court majority rejected Texas's argument that illegal aliens are not persons covered by the Fourteenth Amendment, it refused to apply strict scrutiny. By a 5to4 vote, it invalidated the Texas law, using the intermediate standard of equal protection review. Justice Lewis F. Powell wrote a pivotal concurring opinion that emphasized the special circumstances of the case the involuntary presence of the alien children in the country and the importance of the

governmental benefit involved. Unlike invidious racial classifications, which are inherently suspect, the state may thus enact some laws that draw distinctions between aliens and citizens. With respect to aliens legally in the country who are denied important benefits, Graham establishes a presumption that alienage classifications are suspect and liable to strict scrutiny. Foley, however, recognizes an exception to this rule: states need show only a rational basis for excluding aliens from public functions vital to representative government. With respect to illegal aliens, the picture is less clear. Plyler applies an intermediate standard of review, but the narrow and divided nature of that ruling makes it difficult to generalize beyond the facts of the case. While state power to classify aliens is variable, the cases involving federal law have a single theme: the national government's power over aliens is substantial. Again, cases involving Chinese aliens in the late nineteenth century state key principles. In one of the Chinese Exclusion Cases, Chae Chan Ping v. United States (1889), the Supreme Court said that congressional power to restrict entry of aliens into the United States was a fundamental attribute of national sovereignty. Thus, Congress could enforce a ban on immigration from Asia. In Fong Yue Ting v. United States (1893), the Court similarly gave Congress a free hand to set criteria for deportation. Congress exercised those prerogatives early when it passed the Alien and Sedition Acts in 1798. Yet just as Congress did not broadly exercise its commerce powers until the latter part of the nineteenth century, it did not enact limitations on immigration until the 1890s. Significant antagonism existed toward southern and eastern European immigrants that led to further restrictions on aliens during this era. The assassination of President William McKinley by Leon Czolgosz in 1901 fueled fears of aliens, anarchism, and violence. By 1903, Congress had passed laws making anarchism grounds for deportation and exclusion from entry into the country. World War I and the Red Scare after the Bolshevik Revolution precipitated greater intolerance and repression directed against radicals of all kinds, many of whom were aliens. In 1917 and 1918, Congress passed immigration laws that allowed the federal government to deport aliens for political reasons and even to revoke the citizenship granted to naturalized aliens who had been associated with anarchism. Since the Supreme Court has broadly endorsed congressional authority over aliens, there are fewer cases challenging federal as opposed to state laws based on alienage. In 1976, however, the Burger Court ruled that the Civil Service Commission could not enforce a rule making aliens ineligible for the federal civil service. Justice Powell's opinion for the fiveperson majority in Hampton v. Mow Sun Wong (1976) rejected the view that the federal government's power over aliens is plenary. For example, noncitizens have due process rights in deportation hearings (Wong Yang Sung v. McGrath, 1950); and the Fourth Amendment's ban on unreasonable searches and seizures applies to investigation of illegal aliens by immigration authorities, though with flexibility regarding border searches (United States v. BrignoniPonce, 1975). Yet the Court ultimately rejected the commission's regulation on due process grounds and avoided taking up any equal protection issues. The limited scope of the Fifth Amendment's equal protection component, based on Bolling v. Sharpe (1954), in federal alienage cases became evident in a case decided along with Hampton. In Mathews v. Diaz (1976), the Court unanimously ruled that

Congress had to show only a rational basis for denying Medicare benefits to aliens living in the country for at least five years. Naturalization, the process by which persons become citizens other than by birth, also reflects broad federal authority. Congressional power over aliens rests in part on Article I's grant of power to establish a uniform rule of naturalization. In 1790, Congress provided that a free white alien who had lived in the United States for two years could be naturalized by any common law court, given evidence of good character and willingness to uphold the Constitution. These basic requirementsresidence, moral fitness, and fidelity to constitutional principlesremain the core requirements for naturalization today. Yet Congress retains broad power to define these standards, as underscored in United States v. MacIntosh (1931). Congress has required literacy as a condition of naturalization and allowed denial of citizenship on the grounds of moral turpitude (drunkenness, gambling, prostitution, or polygamy) or prior criminal activity. In Osborn v. Bank of the United States (1824), Chief Justice John Marshall maintained that there was no difference between a naturalized and a nativeborn citizen. Yet, since passage of the Naturalization Act of 1906 there has been one significant exception to this rule. A naturalized citizen may be stripped of citizenship if there is evidence of bad faith or fraud in the naturalization process. In Schneiderman v. United States (1943), however, the Court placed a heavy burden of proof on the government in order to denaturalize a citizen. It was not enough to establish Schneiderman's failure to support the Constitution (a statutory requirement for naturalization) by proving that he had been a member of the Communist party when he became a citizen (see Communism and Cold War). The Court required clear, unequivocal, and convincing evidence of disloyalty in order to revoke citizenship. Alienage and naturalization reflect two themes in the history of American civil rights policy. First, the history of alienage law underscores the fragility of civil rights in times of real or perceived emergency and demonstrates the interaction of economic, political, and social forces in the definition of those rights. From the Alien and Sedition Acts, to the antiAsian restrictions of the late nineteenth century, to the repression of the Red Scare and the anticommunism of the postWorld War II era, threats to securityeconomic or politicalhave stimulated efforts to limit the scope of civil rights for citizens and aliens alike (see Subversion). Second, as with the perennial civil rights problem in American societyrace relationsalienage cases reflect the contours of American federalism. Federal power to regulate alienage and naturalization is an attribute of sovereignty and is substantial. Where functions broadly considered vital to representative government are not involved, the Fourteenth Amendment limits state authority to classify persons on the basis of citizenship. Thomas Alexander Aleinikoff and David A. Martin, Immigration: Process and Policy (1985). Developments in the Law: Immigration Policy and the Rights of Aliens, Harvard Law Review 96 (1983): 12861465. Charles Gordon and Harry Rosenfield, Immigration Law and Procedure (1984). Elizabeth Hull, Without Justice For All: The Constitutional Rights of Aliens (1985).