Waves of immigrants have poured into the United States, rapidly expanding and diversifying the population of the ethnic minority groups.  In 1991, a record of 1.8 million foreign nationals obtained permanent residency.  Permanent resident aliens (hereinafter “aliens”) are legally authorized to live and work in the United States indefinitely.  They, like citizens, pay their full share of taxes, serve in the Armed Forces, and contribute in myriad other ways to the American economic and cultural life. 

            In 1915, the United States Supreme Court explicitly recognized and honored the right of lawfully admitted aliens to work for a living in common occupations as “the very essence of the personal freedom and opportunity” secured by the Fourteenth Amendment.  Nonetheless, later developments in case law show the courts’ failure to adhere to this principle.  State and local legislation has required American citizenship for a wide array of occupations, limiting aliens’ access to public employment.  The citizenship restrictions often sweep too broadly, operating as a blanket exclusion of aliens.  Stereotypical views of the foreign-born seem to lie at the heart of many alienage-based classifications. 

            In determining the validity of alienage classifications, the Supreme Court has yet to articulate a stable analytical framework under the Equal Protection Clause of the Fourteenth Amendment.  The characterization of aliens as disloyal and untrustworthy transients dominates judicial analysis as well as legislative judgments.  Too often, alienage classifications operate arbitrarily without reference to intrinsic differences between citizens and aliens.  Such stereotypical distinctions between the two groups contradict America’s embrace of an ideal that a person should be judged by his or her intrinsic merit.  From a more practical standpoint, discriminatory legislation can result in the waste of unique cultural and linguistic skills that foreign nationals can add to the domestic labor force.

           This article will discuss the constitutional rights of permanent resident aliens in public employment.  In doing so, it attempts to explore the more fundamental question: what does it mean to be a full participant in the American national community? Equal Protection jurisprudence provides an ideal setting for this purpose.  The court depicted the Fourteenth Amendment as the embodiment of the nation’s belief in equality.  Forming the core of the American civil culture, the Constitution signifies “a vehicle of life, and its spirit is always the spirit of the age.”  Moreover, a nation’s immigration policy, based on deeply held cultural values, reveals the type of society to which its citizens aspire.

        Tracing the historical and modern treatment of alienage classifications, this article will critically evaluate rhetorical devices and assumptions used to justify the exclusion of aliens.  It will not argue, however, that distinctions between citizens and aliens should be completely eliminated.  Most significantly, the right to vote and to hold high public office should remain a privilege that no alien has a right to enjoy.  The article will instead emphasize that states should be deterred from enforcing discriminatory legislation that abridges or hampers the basic right of aliens to work for a living in common occupations.

            Lastly, alienage classifications in the federal scheme go beyond the scope of this article.  The Constitution has granted Congress the paramount power over immigration and naturalization.  The exercise of this federal power has been traditionally accorded minimum judicial scrutiny; therefore, this article will focus on state and local legislation.   (Pages 401-404)

       Rights of Aliens under the Constitution: The Requirement of Citizenship

           The text of the Constitution seems to attach little (“only the most minimal” in Alexander Bickel’s words) to citizenship.  Only two articles explicitly require United States citizenship: Article II (for the Office of President and Vice President) and Article I (for membership in the House of Representatives and the Senate).  The Bill of Rights protects the rights of all persons, including aliens.  However, aliens are not guaranteed those rights implied in the Citizenship Clause of the Fourteenth Amendment, the privileges and immunities of citizens of the United States, or the privileges and immunities of citizens of the several states. 

          Interestingly enough, the right to vote, perhaps the most significant implication of citizenship, has no textual basis in the Constitution.  The states retain the power to determine qualifications of voters.  Nevertheless, the Constitution has implicitly entrusted the right to vote to citizens, as shown by several amendments barring denial of the right of “citizens of the United States” to vote due to race, sex, and age.   (Pages 404-405)

          Alienage as a Non-Immutable Characteristic

            Rhetoric

          The courts have generally treated race and alienage as two distinct categories.  As the Fifth Circuit explained, society distinguishes discrimination against Jones, a black American citizen, from discrimination against Kirov, a Ukrainian citizen and legal resident of the United States.  Racial discrimination continues to share constitutional condemnation while provoking public dialogue.  Recognition of African-Americans as a discrete and insular minority has remained deeply ingrained in constitutional thinking.  As Justice Murphy emphatically stated in the Korematsu case, “[r]acial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”  Also, the Bakke Court declared that “[the] perception of racial and ethnic distinctions thus readily qualify as suspect classifications, triggering strict judicial scrutiny.”  In contrast, the legal system has paid less attention to issues concerning resident aliens. 

            In Sugarman v. Dougall, Justice Rehnquist criticized an open-ended concept of “insular and discrete minorities,”  arguing against subjecting alienage-classifications to strict scrutiny.  Furthermore, applying a principle articulated in San Antonio Independent School Dist. V. Rodriguez, Justice Powell in Nyquist v. Mauclet maintained that aliens are neither subject to purposeful exclusion nor saddled with disabilities cast upon racial minorities. 

        The concept of immutability lies at the heart of the favored treatment of race under the law.  This view points towards the individual as incapable of changing their skin color or ethnic origin.  Thus, distinctions on the basis of race, an immutable but externally visible characteristic, “[represents] an evil, always and everywhere.”  On the other hand, aliens technically retain the power to remove themselves from their disfavored status.  Therefore, the responsibility lies with aliens themselves, who have chosen not to relinquish their ties with their homelands.

           The immutability rationale stems from the principle of fairness to individuals, firmly embedded in the American concept of justice: one should not be penalized due to his or her status determined solely by an accident of birth.  American society does not tolerate discrimination against faultless victims.  As Justice Jackson articulated in Korematsu, “if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable.”  More recently, exploring gender discrimination in Frontiero v. Richardson, the court asserted that imposition of disabilities on women because of their gender violates “the basic concept of our system that legal burdens should bear some relationship to individual responsibility.”

            Counter-Argument

          The preceding approach disregards the Supreme Court’s own acknowledgment that aliens do remain powerless to change their status, at least for a certain period of time; they must first fulfill their durational residency requirements for the attainment of citizenship.  More fundamentally, however, immutability arguments themselves warrant critical evaluation.  Such arguments can be crafted in order to perpetuate an existing injustice.  Most notably, gays and lesbians suffer discrimination, at least partly due to the prevailing norm that sexual orientation is not immutable.

            By expecting the subordinated group to overcome the subordination by altering their status, judges avert their eyes from the very issue of the subordination.  The courts, in effect, punish those who have made a decision about a vital aspect of their self-definition.  The fact remains that a great many immigrants will continue to maintain their resident alien status, and the existing patterns of the oppression will not be eliminated unless some affirmative steps are taken.  In Nyquist v. Mauclet, the Supreme Court declared tht the suspect class should be broadly defined, despite the element of voluntariness in a resident alien’s retention of his or her status.

           Equally important, the question arises as to why aliens should be forced, simply in order to earn a living, to alter the integral component of their identities.  By pointing to naturalization as the solution to the problem, the courts proceed on the assumption that it is relatively easy for an alien to withdraw form his or her disfavored status and to join the dominant group.  Viewing naturalization from their own vantage point, the courts trivialize the emotional sacrifice that individual aliens may endure by renouncing their original citizenship.

            To avoid the risks posed by the immutability rationale, history of oppression by dominant groups should be used as the decisive factor.  The Court has explicitly recognized aliens as victims of oppression.  As Justice Blackmun noted in Ambach, aliens in general have suffered unfair treatment, reflecting “attitudes of parochialism and fear of the foreigner.”  Also, in Toll v. Moreno, Justice Blackmun acknowledged that aliens constitute a group “historically disabled by the prejudice of the majority.”

            Finally, despite the distinct line that the courts have generally drawn between race and alienage, statistical evidence strongly suggests a correlation between the two categories.  People of color, especially Hispanics and Asians, comprise the vast majority of foreign nationals admitted for permanent residence each year.  Thus, alienage classifications can operate as racial discrimination, which the Court has unquestionably condemned.  As discussed earlier, Examining Bd. Of Engineers v. Otero arose over Puerto Rico’s statutory requirement of citizenship for civil engineers.  It proved that an intent to reduce the number of Spanish-speaking immigrants prompted the legislation.  Under the guise of the citizenship requirement, a state may conceal its discriminatory motive against racial minorities.  The statistical disparity alone may not justify completely equal treatment of race and alienage; nevertheless, it should compel the courts to approach alienage classifications with more caution.