Sunday, December 11, 2011

MBE Fast Fact: Equal Protection--Alienage.

The rules regarding alienage, as they relate to the the 14th Amendment Equal Protection Clause can get confusing, especially in regards to the differences between the state and federal government. The relevant rules to remember are as follows: First, alienage is a suspect classification, so that, in general, if a state passes a law that discriminates against legal or resident aliens, strict scrutiny will apply. The law will only be upheld if the law is necessary to achieve a compelling government interest. In addition, the state government will have the burden of proving that the strict scrutiny standard has been satisfied. There are exceptions, however. If a state law discriminates against alien participation in state government, or for certain non-elective offices such as police officers or probation officers, the rational basis test, rather than strict scrutiny, applies. The law is constitutional if it is rationally related to a legitimate government interest. This is, of course, a much easier standard to satisfy. You should also note that strict scrutiny does not apply to undocumented (ie, illegal) aliens. The test for a law that discriminates against undocumented aliens is the rational basis test. The only exception is that a law discriminating against undocumented alien children which prevents them from obtaining public education will be subject to the higher standard of strict scrutiny in determining whether that law is valid. Finally, note that all of the above applies only to laws passed by the state government. Because of Congress's plenary power over aliens, federal alienage classifications are not subject to strict scrutiny, and will be valid provided the laws are not arbitrary and unreasonable.

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