I. When the Federal Government Targets Non-Citizens

We’re not here to sugarcoat anything, so let’s start with some bad news: the federal government has wide latitude when it comes to immigration and naturalization, and that means that it can treat (and mistreat) immigrants and non-citizens largely however it wants to. State governments are a different story.

Why the difference? In Section 8 of Article I of the US Constitution, you will find a list of powers granted to Congress. As to those powers, Congress’s authority is, as far as courts are concerned, plenary (meaning absolute). And among Congress’s powers is the authority to regulate naturalization (the process of acquiring citizenship). This power has been interpreted broadly to include the authority to regulate immigration and the status of non-citizens.

To some extent, this makes sense. Imagine that you were to write a “constitution” to govern your own household, and that in that constitution you wrote, “Every child over the age of 12 shall have plenary and exclusive power over his or her own room.” After having given that kind of authority to a child over 12, you couldn’t very well impose some rigid framework for deciding whether you agree with the child’s choices as to the decor, maintenance, and contents of his or her room. That isn’t to say that you would retain no supervisory role whatsoever; the authority to control one’s room, for example, probably does not include license to set the room’s walls on fire and burn the whole house down. What a child has here is broad discretion to do those things that are reasonable and sane as to the decor, maintenance, and contents of his or her room.

Courts apply the same principles to Congress when it regulates immigration, naturalization, or the status of non-citizens generally. The Constitution (the parent) gives Congress (the child over 12, appropriately enough) plenary power over these areas. Therefore, Congress may regulate these areas without rigid scrutiny from courts. Congressional regulation in these areas is valid as long as it bears some rational relationship to achieving legitimate immigration and naturalization policies. Put another way, a court will only strike down a federal law on immigration or naturalization if the law is wholly without any legitimate purpose or if the means chosen by Congress are, in a word, nuts.

Why is this bad news? It’s bad news because both houses of Congress are and will remain in Republican hands. We’re at risk here of a two-way rubber stamp; Congress might be amenable to passing whatever draconian measures are proposed by Donald Trump, and Donald Trump will likely be amenable to signing any draconian measures dreamed up by Congress. And when the federal government (i.e. Congress and the President) enacts legislation that targets non-citizens, its legislation is nearly always upheld.

II. When States Target Non-citizens

The Constitution explicitly gives Congress the power to regulate naturalization. There is no such grant of power to states over the same subject.  And the Fourteenth Amendment to the US Constitution says, among other things, that no state may deny to any person within its jurisdiction the equal protection of the laws. Notice that it does not identify any particular kind of person; it doesn’t say white person or African-American person or tall person or short person or citizen or non-citizen – it just says person.

Obviously, this clause – the Equal Protection Clause – cannot be read as an absolute bar on the government’s treating some people differently than other people under any and all circumstances. For example, the government treats speeders differently than non-speeders and serial killers differently than peaceful humans. We might all agree that these are reasonable species of disparate treatment. To generalize, the Equal Protection Clause does not target different treatment for an individual under any and all circumstances, but discrimination against certain groups for reasons that seem arbitrary or malicious.

Think of the Equal Protection Clause as the rules of the schoolyard. Imagine yourself as a schoolyard monitor supervising middle-school kids. You see a group of bullies making fun of a kid who seems awkward, has bad acne, and is standing by himself. You might overlook one instance of taunting (maybe even poking and prodding) and hope it stops on its own. You might even overlook two or three instances in the hope that the targeted student will be able to handle it on his own. But as the grownup on scene, you can only let this go on for so long. At some point, if the bullies don’t stop and the awkward kid can’t defend himself, it’s up to you to step in and say, “Enough.”

In this scenario, the targeted kid is the analog to what courts call “a discrete and insular minority” – a group of people who are made to feel outside the American mainstream, who have persistently been targeted for abuse, and who do not have the numbers or political clout to defend themselves. The bullies are the political majority, which throughout American history has had the unfortunate tendency to abuse minority groups as more a national pastime than even baseball. And the schoolyard monitor plays the part of federal courts. Federal judges – unelected, appointed for life, and secure in their compensation – do not answer to the political majority. Rather, they function as the adult in the room (or on the schoolyard). Federal judges (at least good ones) see the Equal Protection Clause as a command to step in and protect powerless minorities who cannot protect themselves.

Law students and others who study the Constitution (and other kinds of law, for that matter) often lose sight of the simplicity, elegance, universality, and even common sense that undergirds our governing principles. The reasons courts protect discrete and insular minorities are the same as the reasons a grownup would protect a defenseless middle-schooler. Let’s take a moment to discuss those reasons, even if they seem like nothing more than common sense:

  1. The student was likely being picked on for characteristics beyond his control. One does not choose to go through “an awkward stage” or develop a bad case of acne; these things happen on their own and, for the most part, can’t be changed at whim. Because these things are innocent characteristics that are not the mark of bad decisions or bad character or guilt, they cannot form a legitimate basis for treating someone badly.
  2. Once taunting or abuse has gone on for too long, the victim will suffer real harm. When we abuse others and hold them down, we inflict trauma. There are real costs associated with that trauma: psychological and emotional scars, feelings of inferiority, and potentially even a desire to lash out in destructive ways.
  3. There is nothing about being an awkward middle-schooler that limits a person’s ability to contribute and participate meaningfully. That being the case, treating a person differently because he’s awkward is arbitrary and malicious. It’s one thing to tell a student he hasn’t been picked for a team because he doesn’t run fast enough; it’s quite another to render him an outcast because he’s awkward and has acne.

Courts use much the same reasoning when applying equal-protection principles. The majority should not use the power of the state to pick on groups based on characteristics that are beyond a group’s control and have no bearing on the group’s ability to participate meaningfully to society when that abuse, if allowed to continue, would cause real harm.

How do these principles apply to the immigrants and non-citizens?

The Supreme Court has ruled that non-citizens are a protected group under the Equal Protection Clause. Although citizenship status can change (through the naturalization process), certainly a person does not choose his or her birth citizenship. In that sense, citizenship status is immutable and cannot be used as a proxy for some kind of bad character or guilt. And because non-citizens can’t vote, they are especially vulnerable to abuse by the majority. How does a group defend itself from majoritarian hostility without even being able to exercise the franchise?

So courts treat state-level discrimination against non-citizens as immediately suspect. If judges were dogs, their hackles would go up at the sight of such laws. When that happens, they (judges) do apply a rigid species of scrutiny to whatever discriminatory law is at issue; it will only be upheld as valid if it represents the best and only was to achieve some super-important (courts use the word compelling) interest.

Courts have also reasoned that, in most cases, a person’s citizenship status has nothing to do with that person’s ability to contribute to society in a meaningful way. But there is an exception to this principle, and it’s a big one.

The Supreme Court has ruled that it will not apply rigid scrutiny to a state’s decision to exclude non-citizens from certain jobs if those jobs involve core functions in our government or society.  For example, states have been allowed to exclude non-citizens from jobs like police officer and public-school teacher. On the other hand, state laws that purported to stop non-citizens from getting licensed as lawyers or from working at all jobs subject to competitive examination (including sanitation workers) were struck down as invalid.

Conclusion

Immigrants and non-citizens are especially vulnerable in Trump’s America; we can expect federal legislation that targets non-citizens in draconian ways and expansive state attempts to exclude non-citizens from more and more positions. Our work has just begun.