Amendment 14 — Alienage Classification

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Fourteenth Amendment , Section 1:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

An alien, whether present lawfully, unlawfully, temporarily, or permanently, is a “person” within the meaning of the Equal Protection Clause and receives its protection.[1](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn1amd14 " Plyler v. Doe, 457 U.S. 202, 210–16 (1982) (emphasizing that “[a]liens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments” ); Graham v. Richardson, 403 U.S. 365, 371 (1971); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); see also Zadvydas v. Davis, 533 U.S. 678, 693 (2001) ( “[O]nce an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” ). ") One of the earliest equal protection decisions, Yick Wo v. Hopkins,[2](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn2amd14 " 118 U.S. 356 (1886). ") involved the constitutionality of a municipal ordinance that granted officials absolute and unrestrained authority to grant licenses for laundries.[3](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn3amd14 " Id. at 367–68. ") The Supreme Court found the officials were employing their authority to deny permission to resident Chinese aliens.[4](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn4amd14 " Id. at 374. ") The Court struck down the facially neutral city ordinance as an equal protection violation, stating that the distinction was based on “no reason . . . except hostility to the race and nationality. . . . ” [5](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn5amd14 " Id. ")

In many subsequent cases after Yick Wo until 1948, the Court allowed less favorable treatment of aliens whenever the alienage classification related to a “special public interest.” [6](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn6amd14 " Heim v. McCall, 239 U.S. 175, 194 (1915) (upholding New York law that prohibited the employment of aliens on public works contracts for the construction of subways); Crane v. New York, 239 U.S. 195, 198 (1915) (affirming New York law that made it a crime to employ aliens on public works contracts). ") In particular, the Court upheld state laws forbidding aliens from taking possession of natural resources, citing a state’s significant legitimate interest in reserving use of these resources for its citizens.[7](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn7amd14 " See Patsone v. Pennsylvania, 232 U.S. 138 (1914) (killing of wild game); McCready v. Viriginia, 94 U.S. 391, 396 (1876) (planting of oysters). ") The Court also sustained laws prohibiting the ownership of land by aliens and the indirect control of lands by aliens.[8](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn8amd14 " Terrace v. Thomason, 263 U.S. 197, 217 (1923) (finding that aliens were distinguishable as to land ownership and use for reasons other than hostility to race); Porterfield v. Webb, 263 U.S. 225, 232–33 (1923) (sustaining California statute prohibiting the use of land by ‘ineligible’ aliens); Webb v. O’Brien, 263 U.S. 313, 322 (1923) (validating law prohibiting food crop contracts with aliens); Frick v. Webb, 263 U.S. 326, 334 (1923) (approving of law restricting transfer to aliens of shares of a land owning corporation). ") By contrast, in Truax v. Reich,[9](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn9amd14 " 239 U.S. 33 (1915). ") the Court struck down an Arizona law that required employers with more than five employees to hire at least 80% qualified voters or native-born citizens.[10](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn10amd14 " Id. at 40–43. The Court also extended the “special public interest” doctrine to exclude aliens from receiving occupational licenses. See Clarke v. Deckebach, 274 U.S. 392, 396–97 (1927) (ruling that states could prevent aliens from being licensed to operate pool halls). ") According to the Court, “No special public interest with respect to any particular business is shown that could possibly be deemed to support the enactment.” [11](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn11amd14 " Truax, 239 U.S. at 43. The Court partially relied on preemption principles, citing the federal government’s authority to control immigration. The Court stated that “[t]he assertion of an authority to deny to aliens the opportunity to earning a livelihood when lawfully admitted to the state would be tantamount to the assertion of the right to deny them entrance and abode.” Id. at 42. ")

The Court eroded the “special interest” doctrine in the 1948 decision Takahashi v. Fish & Game Commission,[12](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn12amd14 " 334 U.S. 410 (1948). ") which involved a challenge brought by a Japanese alien (then ineligible for U.S. citizenship under federal law) to a state statute barring issuance of commercial fishing licenses to persons “ineligible to citizenship.” [13](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn13amd14 " Id. at 413–14. ") The Court struck down the California law under the Fourteenth Amendment , holding that “'ownership’ [of fish] is inadequate to justify California in excluding any or all aliens who are lawful residents of the state from making a living by fishing in the ocean off its shore while permitting all others to do so.” [14](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn14amd14 " Id. at 421. The Takahashi decision was preceded by Oyama v. California, 332 U.S. 633 (1948), in which the majority seemingly questioned in dicta a distinction between citizens and aliens in the application of a land law under the Fourteenth Amendment, but ultimately declined to fully address the equal protection arguments. See id. at 646–47. Justice Hugo Black concurred, and would have decided the case “on the broader grounds that the basic provisions of the California Alien Land Law violate the equal protection clause of the Fourteenth Amendment and conflict with federal laws and treaties governing the immigration of aliens and their rights after arrival in this country.” Id. at 647 (Black, J., concurring, joined by Douglas, J.). ") Writing for the Court, Justice Hugo Black reasoned that “the power of a state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow limits.” [15](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn15amd14 " Takahashi, 334 U.S. at 420. As in Truax, the Court in part relied upon principles of preemption, explaining that “[s]tate Laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with the constitutionally derived power to regulate immigration.” Id. at 419. ")

The Court began applying a more explicitly rigorous standard of review to alienage classification statutes in the 1970s. In the 1971 decision Graham v. Richardson,[16](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn16amd14 " 403 U.S. 365 (1971). ") the Supreme Court struck down state statutes that either wholly disqualified resident aliens for welfare assistance or imposed a lengthy durational residency requirement on eligibility.[17](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn17amd14 " Id. at 372. ") The Court announced that it would apply strict scrutiny to alienage classifications, reasoning that “classifications based on alienage, like those based on nationality or race, are inherently suspect and subject to close scrutiny.” [18](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn18amd14 " Id. at 371–72. Citing Takahashi, the Graham court also held that the law was invalid because it interfered with the federal government’s exclusive authority over immigration. Id. at 378 (affirming that “state laws that restrict the eligibility of aliens for welfare benefits merely because of their alienage conflict with these overriding national policies in an area constitutionally entrusted to Federal Government” ). In other words, once the federal government allows an alien to enter the United States, a state cannot discriminate against those present. ")

Other decisions applying strict scrutiny soon followed. In the 1973 decision Sugarman v. Dougall,[19](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn19amd14 " 413 U.S. 634 (1973). ") the Court voided a state law making citizenship a requirement for any position in the competitive class of a state civil service system.[20](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn20amd14 " Id. at 646. ") According to the Court, a state’s power “to preserve the basic conception of a political community” enables it to prescribe the qualifications of its officers and voters,[21](https://www.law.cornell.edu/constitution-conan/amendment-14/alienage-classification#fn21amd14 " Id. at 647–49. ") and this power would extend “to persons holding state elective or important nonelective executive, legislative, and judicial positions, for officers who participate directly in the formulation, execution, or review of broad public policy perform functions that go to the heart of representative government.” [22](https://www.law.cornell.edu/c