ScholarWorks@숙명여자대학교

초록

Many types of laws or executive actions may distinguish between citizens of the United States and noncitizens. Such actions raise the question of the constitutionality of classifications based on "alienage", the status of being a noncitizen. Aliens do not receive the protection of constitutional guarantees that by their terms apply only to "citizens", for example the Privileges or Immunities Clause of section 1 of the Fourteenth Amendment applies only to "citizens". However, the clauses of the Constitution that apply to "persons", protect aliens, such the protection of the Bill of Rights, including the Fifth Amendment due process clause, and the Fourteenth Amendment due process and equal protection clauses. In general, the Court has purported to apply strict scrutiny to classifications disadvantaging aliens. However, the status of alienage classifications is much less clear than those of race and national origin. There is an exception to the general principle that state and local laws employing alienage classifications are subject to strict scrutiny. This exception has been labeled the 'political function' exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government. The state and local discrimination against lawfully admitted alien is subject to strict judicial scrutiny. By contrast, federal laws that discriminate against aliens are reviewed under a rational basis standard. The United States Supreme Court has not yet dealt with the rights of adult illegal aliens. But it has established that illegal aliens of school age may not, consistent with the Equal Protection Clause, be charged a fee for public school education.

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