Government Interests, Illegal Alienage, and the Innocent Underclass: An Equal Protection Overview | Eastern North Carolina Now

     Most of us have heard of Arizona’s new, much-maligned statute that requires cops to question anyone appearing to be in the country illegally. Regardless of whether Arizona’s law presents practical or constitutional difficulties, many Americans have been encouraged to see state legislators attempting to take a proactive stance against those who insist on entering and remaining in the United States illegally—persons whose undocumented status is largely ignored by federal immigration officials, local employers, and other institutions.

     State and local governments certainly have some interest in seeing that their resources are not overburdened or exhausted by illegal aliens (for whom the pandering and more politically correct term now appears to be “undocumented immigrants,” by the way). But the Equal Protection Clause imposes a rather peculiar balancing act on governments seeking to enact measures designed to mitigate illegal immigration-related problems. The following is intended to be a very minimal equal protection overview for folks unfamiliar with constitutional law who wonder why their elected politicians aren’t doing more to crack down on illegal aliens in general.

» The Ground Rules of Equal Protection

     Here are the basic legal principles. The Equal Protection Clause comes from the Fourteenth Amendment to the federal Constitution, which says that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” In its most fundamental sense, this language prohibits laws that single out certain people based on their membership in some “class.” In other words, laws ought to regulate all people equally, on the basis of their being people—not on the basis of their race or gender, for instance. Accordingly, laws that are held to violate the Equal Protection Clause are generally those that operate on the basis of classifications of persons.

     But not all classifications will render a law unconstitutional. This is because the Supreme Court (and the lower courts that must follow its precedents) scrutinizes laws more or less harshly depending on what the classification actually is. The chart below lists the different types of classes and the members of those classes, and states the degree of scrutiny (or type of analysis) the Court will apply in evaluating each:

CLASSIFICATION	COURT’S ANALYSIS
Suspect Classes: Race; National Origin; Legal Alienage (i.e., non-U.S. citizens).	Strict Scrutiny: Each aspect of the law must be necessary to achieve or further a compelling government purpose or interest. This test almost always results in the law being struck down as unconstitutional.
Quasi-Suspect Classes: Gender; Legitimacy.	Intermediate Scrutiny: The law must be substantially related to an important government purpose or interest.
Non-Suspect Classes: Anything not listed above (e.g., Age; Disability; Wealth).	Rational Basis Test: Law need only be rationally related to a merely legitimate government purpose or interest. This analysis nearly always results in the court upholding the statute in question (exception is where the law is clearly arbitrary and irrational).

     The term “suspect” reflects the belief that the members of certain classes have traditionally or historically been subjected to invidious, arbitrary discrimination on the basis of that status. Generally speaking, then, “suspect” might be thought of as interchangeable with “most vulnerable to unreasonable discrimination.”

     The class targeted by a given law will usually depend on that statute’s actual language. For example, if a town ordinance makes it unlawful to serve alcohol to a black male, two classes are involved: race and gender. Race is a suspect class, so the ordinance would trigger the most rigorous form of judicial scrutiny. The town would have to prove that the ordinance serves a “compelling” interest (e.g., the prevention of crimes or acts of violence in public) and that no alternative ordinance would serve that interest just as effectively without discriminating on the basis of race. In this example, the town would fail, because the ordinance could easily be re-written to focus not on race, but on factors that are actually indicative of the behavior the town wants to prevent.

    So if the town really wanted to discourage bar-room brawling without the risk of losing an Equal Protection Clause lawsuit, it could pass an ordinance prohibiting the consumption of alcohol in restaurants and bars by anyone who has a prior conviction for drunken and disorderly conduct or a conviction for assault in which intoxication was asserted as a mitigating factor. Such an ordinance would not penalize law-abiding black men while completely ignoring ritualistically belligerent white men—and belligerent black or white women, for that matter. This alternative would still involve a classification (namely, persons convicted of certain offenses), but this would not be a suspect or even a quasi-suspect classification. The resulting alternative ordinance would be therefore entitled to great deference under rational-basis scrutiny, and would be upheld.

     But what if the town instead takes the word “black” out of the original alcohol ordinance, so that it now applies to males, regardless of race? Well, gender is a quasi-suspect class, so intermediate scrutiny applies. This means the ordinance does not have to be quite as narrowly crafted as the alternative described above in order to survive scrutiny. Instead, the basic inquiry will be whether reducing fighting in saloons is an important goal (it likely is) and whether the ordinance actually has a substantial connection to reducing that sort of violence without affecting other protected interests in a disproportionate way. Assuming most bar fights involve men and not women, there is a substantial relationship between the ordinance and the government interest. However, the consequence of intentionally discriminating against men in this case might be a ruling of unconstitutionality, especially if the very broad ordinance is held to be a “disproportionate” response to the occasional bar fight. The result in such a case would likely hinge on whether drinking alcohol in public is a protected liberty interest (doubtful). In any event, you should be able to see how the type of classification and type of scrutiny involved have a great impact on whether a given law is upheld or not.

» An Added Wrinkle for Laws Affecting Illegal Aliens

    So do what the principles above have to do with state and local crackdowns on illegal aliens? By now you have probably noticed that “illegal alien” is absent from the list of suspect and quasi-suspect classes, and you’re probably thinking, “If illegal alienage is not a suspect classification, what is there to keep my lawmakers from passing laws denying various public services to illegals?” The answer comes to us from the Supreme Court’s 1982 ruling in a case called Plyler v. Doe.

    In Plyler, the Court held that even though illegal immigrants were not entitled to suspect class status, a Texas statute that had the effect of excluding undocumented aliens from its public schools was unconstitutional. To strike down that law, the Court applied a heightened form of scrutiny rather than the rational-basis test called for by its precedents. The Court gave a rather remarkable justification for this aberrant reasoning:

[The Texas statute] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. The stigma of illiteracy will mark them for the rest of their lives. By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation.

    Even though the schoolchildren who would be affected by the statute were themselves illegal aliens (not just their parents), the Court characterized them as “innocent victims” who would at some point gain legal status through the process of law. And because such children would eventually become adult citizens, the liberal justices concluded it was unfair to condone a law that would have the effect of hurting those kids’ chances of succeeding in life.

     “It is difficult to understand precisely what the State hopes to achieve,” said Justice Brennan, “by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime.” In a concurring opinion, Justice Powell announced that a “legislative classification that threatens the creation of an underclass of future citizens and residents cannot be reconciled with one of the fundamental purposes of the Fourteenth Amendment.”

     And so, having deemed this a situation where the State of Texas was not entitled to deference on its policy choices, the Court proceeded to criticize the effectiveness of the statute, questioning whether it would really yield any important benefits for the state—rather than whether it bore a rational relationship to legitimate state goals.

     Here is how the Court shot down a couple of the main arguments made by the state in support of its statute. One interest asserted by Texas was that of “mitigating the potentially harsh economic effects of sudden shifts in population” that would be brought about through an “influx of illegal immigrants.” In holding the statute insufficiently related to this objective, the Court said:

There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy. To the contrary, the available evidence suggests that illegal aliens underutilize public services, while contributing their labor to the local economy and tax money to the state fisc.

    Another justification upended by the Court’s liberal justices was the need to exclude illegal aliens from schools “because of the special burdens they impose on the State’s ability to provide high-quality public education.” Citing a general insufficiency of statistical and economic evidence, the Court concluded that this goal was not met by the statute either. “In terms of educational cost and need,” said Brennan, “undocumented children are ‘basically indistinguishable’ from legally resident alien children.”

    Another important thing to note from the Plyler case is that the Court was clear in holding that illegal aliens do not have a fundamental right to public education. Fundamental rights (constitutionally speaking) are things such as the right to procreate, the right to keep and bear arms, and other various rights specifically enumerated in the Bill of Rights. The key point to remember is that whenever a statute infringes or burdens the exercise of fundamental rights, it is generally going to be subject to strict scrutiny—regardless of whether or not it involves a suspect classification.

» So what sort of Illegal Alienage Laws are Constitutional?

    Unfortunately, it is difficult to anticipate with a useful degree of confidence whether any given law will be bulletproof. In light of the concepts described above, it would seem that a state or local lawmaking body ought to steer clear of at least the following sorts of measures, assuming it wants to escape Equal Protection Clause litigation:

• Laws that involve a classification on the basis of membership in a suspect class (e.g., race or national origin).
• Laws that do not involve suspect classes but still impact the “innocent children” of illegal aliens in such a way as to create or perpetuate an “underclass” consisting of less-educated, less-equipped immigrant adults.
• Laws that burden fundamental rights (e.g., an ordinance making it difficult for a woman to meet with an emergency room obstetrician without proof of legal residency might implicate the fundamental right to procreate).

    The following, in contrast, are likely to be safer legislative moves:

• Requiring proof of citizenship for anyone seeking employment in high governmental position.
• Cutting funding to a specific public service, across the board.

    The lists above are not exclusive, and they certainly should not be considered conclusive. It is very important that lawmakers are careful to gather persuasive evidence of a real problem that will be squarely addressed by a proposed bit of legislation. This is because in the worst-case scenario, the court will be looking to see whether the challenged law has been carefully drafted to regulate only those things that have a real relationship to statistically-demonstrable burgeoning crises of some sort. You might say the lawmaking body should plan for strict scrutiny, although it hopes to receive something less stringent (or never be sued in the first place).

    The difficulty for a state or local representative seeking to cut down on illegal aliens’ use of public resources is that there are other legal hurdles to negotiate. For example, an equally significant barrier to state and local immigration reform is the Supremacy Clause and its accompanying preemption doctrine, which renders local laws invalid to the extent they stray into a field that is regulated solely by Congress. If a state or municipality passes laws or ordinances that have the effect of stepping on the toes of related federal laws (including treaties with foreign nations), the local laws are said to conflict unconstitutionally with the “supreme Law of the Land.”

    In short, the Equal Protection landscape has the benefit of a fairly established legal backdrop, fashioned over the years by courts in addressing many fact situations. The analysis is complicated, however, by a number of considerations for which there are no clear answers yet, including uncertainty regarding how far the Plyler decision will stretch, as well as questions of congressional preemption. Perhaps the various lawsuits being threatened against Arizona in response to its illegal alien statute (assuming those suits have not already been brought) will result in the creation of constitutional precedents that will guide other governments facing similar issues. Until then, lawmakers facing immigration-related controversies should make sure they employ a light touch and a diligent legal team.