Immigration and Alienage (Update 1)

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Federal regulation of immigration did not begin until late in the nineteenth century, and the current code of complex admissions categories and limitations is wholly a product of the twentieth century. The first significant tests of congressional authority to exclude and deport noncitizens came in chae chan ping v. united states (1889) and Fong Yue Ting v. United States (1893), cases challenging federal immigration law that barred the entry of Chinese laborers, notably the chinese exclusion act of 1882. Although the Constitution includes no express provision authorizing the enactment of immigration laws, the Supreme Court held that such a power inhered in the notion of sovereignty and was closely associated with exercise of the foreign affairs power of the United States. It also ruled that congressional decisions as to which classes of aliens should be entitled to enter and remain in the United States are largely beyond judicial scrutiny.

Modern cases reaffirm that the Constitution provides virtually no limit on Congress's power to define the substantive grounds of exclusion and deportation. It is also well established that removal of aliens from the United States is not "punishment" in a constitutional sense, and therefore, prohibitions against cruel and unusual punishment, ex post facto laws, and bills of attainder are not deemed to apply to regulations of immigration. Nor does the due process clause of the Constitution offer protection to aliens applying for initial admission to the United States. Such an alien, the Court stated most recently in Landon v. Plasencia (1982), requests a "privilege" and has "no constitutional rights regarding his application" for admission.

It is a dramatic overstatement, however, to conclude that noncitizens in the United States have no constitutional rights. Aliens are generally afforded the constitutional rights extended to citizens (although they are not eligible for federal elective office and do not come within the protection of constitutional provisions prohibiting discrimination in voting). An alien arrested for a crime is entitled to the various protections of the fourth amendment, Fifth Amendment, Sixth Amendment, and Eighth Amendment; an alien may assert first amendment rights in a situation in which such claims may be made by citizens. In the important case of Wong Wing v. United States (1896), the Court invalidated a provision of the 1892 immigration statute providing for the imprisonment at hard labor of any Chinese laborer determined by executive branch officials to be in the United States illegally. Distinguishing this provision from immigration regulations that bar entry or mandate removal of aliens—which are virtually immune from judicial scrutiny—the Court held that such "infamous punishment" could not be imposed without a judicial trial.

Even within the immigration context, the Court has ruled that due process applies to proceedings aimed at removing an alien who has entered the United States. Similar protections must be afforded permanent resident aliens seeking to reenter the United States after a trip outside the country.

Furthermore, the Supreme Court has adopted interpretations of the immigration code that temper the harsher aspects of its constitutional doctrine. "Because deportation is a drastic measure and at times the equivalent of banishment or exile," the Court stated in Fong Haw Tan v. Phelan (1948), ambiguities in deportation grounds should be resolved in an alien's favor. In Jean v. Nelson (1985), the Court held that federal statutes do not authorize immigration officials to discriminate on the basis of race or national origin in deciding whether to release aliens from detention prior to a determination of their right to enter the United States.

While the current constitutional doctrine may be described in fairly short order, it is harder to provide a coherent theoretical justification for the case law. The cases may reflect the existence of two conflicting norms. One, based on a theory of membership in a national community, views immigration as a privilege extended to guests whose invitation may be revoked at any time for any reason; the other, grounded in a notion of fundamental human rights, protects all individuals within the United States, irrespective of their status.

Those two norms seem to underlie the Court's bifurcated approach to federal and state laws that discriminate on the basis of alienage. In yick wo v. hopkins (1886), the Supreme Court held that a local ordinance invidiously applied against Chinese aliens violated the fourteenth amendment. While Yick Wo may be read as a case primarily condemning racial prejudice, later cases make clear that state classifications drawn on the basis of alienage will be subjected to searching judicial scrutiny. Discriminatory state legislation is deemed suspect for two reasons. First, because immigration regulation is characterized as an exclusive federal power, state laws that burden aliens conflict with federal policy. Second, as announced by the Supreme Court in graham v. richardson (1971), aliens constitute a "discrete and insular minority for whom heightened judicial solicitude is appropriate." Since Graham, which struck down laws disqualifying aliens from state welfare benefits, scores of state laws excluding aliens from public benefit programs and economic opportunities in the private sphere have been invalidated. Supreme Court opinions have sustained Fourteenth Amendment challenges to law prohibiting aliens from receiving state scholarships and from serving as lawyers, civil engineers, state civil servants, and notaries public.

In plyler v. doe (1982), the Court held that the equal protection clause protects undocumented aliens in the United States against some forms of state discrimination. The Court invalidated a Texas statute that authorized local school districts to exclude undocumented alien children from school. Although the Court eschewed strict scrutiny—concluding that education was not a fundamental right protected by the Constitution and that laws discriminating against undocumented aliens were not based on a suspect classification—it nonetheless appeared to apply a standard more strict than the traditional rational basis test. Important to the Court were the nature of the interest burdened and the consequences of denying an education to children, many of whom were likely to remain resident in the United States. The Court also noted that no federal policy authorized the exclusion of children from local schools.

Not all state classifications that discriminate against aliens have fallen. citizenship is viewed as a legitimate qualification for those jobs or functions deemed to be closely linked with the exercise of a state's sovereign power. According to Justice byron r. white, writing for the Court in Cabell v. Chavez-Salido (1982), "exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of self-definition." Aliens may therefore be excluded from voting, eligibility for elective office, and jury service. The "political function" exception has also been applied where the linkage to usual conceptions of citizenship seems more attenuated. The Court has upheld state laws prohibiting aliens from serving as police officers, public school teachers, and probation officers. In these cases, the Court does not apply the strict scrutiny test. Rather, it deems the presence of the governmental function as warranting application of a rational basis test.

Federal statutes that draw distinctions based on alienage have been judged by a very lenient constitutional standard. In Fiallo v. Bell (1977), the Court refused to invalidate a section of the Immigration and Nationality Act that permitted children born out of wedlock to enter the United States based on their relationship with their natural mother but did not accord a similar entitlement to nonmarital children seeking to enter based on their relationship with their natural father. Noting that "Congress regularly makes rules that would be unacceptable if applied to citizens," the Court refused to apply heightened scrutiny to the statutory provision, despite its alleged "double-barreled" discrimination based on sex and illegitimacy.

Outside the immigration context, the Court has likewise demonstrated great restraint in its review of federal legislation regulating aliens. Mathews v. Diaz (1976) upheld a provision of the federal Medicare program that denied eligibility to permanent resident aliens unless they had resided in the United States for five years. The Court rejected the claim that the strict scrutiny applied to discriminatory state laws should control, reasoning that given congressional power to regulate immigration, federal laws may classify on the basis of alienage for noninvidious reasons. In Diaz the five-year residence requirement was not irrational, for "Congress may decide that as the alien's tie grows stronger, so does the strength of his claim to an equal share" in "the bounty that a conscientious sovereign makes available to its own citizens and some of its guests." And although the Court held in hampton v. mow sun wong (1976) that a regulation excluding aliens from the federal civil service was beyond the authority of the Civil Service Commission, lower courts subsequently sustained a presidential order reimposing the exclusion.

Despite its constitutional authority to limit federal programs to citizens, Congress has generally made available to permanent resident aliens those benefits and opportunities provided to citizens. Such practice may indicate a political norm that membership in the American community arises from entry as a permanent resident alien rather than through naturalization several years later.

T. Alexander Aleinikoff


Aleinikoff, T. Alexander 1989 Federal Regulation of Aliens and the Constitution. American Journal of International Law 83:862–871.

Legomsky, Stephen H. 1984 Immigration Law and the Principle of Plenary Congressional Power. Supreme Court Review 1984:255–307.

Martin, David A. 1983 Due Process and Membership in the National Community: Political Asylum and Beyond. University of Pittsburgh Law Review 44:165–235.

Rosenberg, Gerald M. 1977 The Protection of Aliens from Discriminatory Treatment by the National Government. Supreme Court Review 1977:275–339.

Schuck, Peter H. 1984 The Transformation of Immigration Law. Columbia Law Review 84:1–90.

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Immigration and Alienage (Update 1)

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Immigration and Alienage (Update 1)