Sunday, February 5, 2012

MBE Fast Fact: Equal Protection

When applying Equal Protection analysis, the general rule is that if a state law (not federal) classfies based upon alienage, strict scrutiny must be applied, so that the law will be found unconstitutional if the government does not prove that the law is necessary to further a compelling government interest. You must note the exceptions, though. Strict scrutiny does not apply to state laws that discriminate against illegal aliens (the law will pass provided it is not arbitrary), or, more importantly, to laws that discriminate against legal aliens if the law is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. So, for example, a state law claiming that legal aliens can not work as public school teachers will be valid provided that it passes rational basis scrtutiny (as opposed to the higher standard of strict scrutiny), because a public school teacher performs an important government function. The same would hold for police officers, etc.

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