1. Bernal v. Fainter, (1984)
2. Facts: Texas had a state law barring aliens from becoming notaries public.
3. Issue: Whether the bar was a violation of equal protection.
4. Holding: Yes.
5. Reasoning: Generally, alienage is a suspect classification, which can only pass strict scrutiny if there are compelling state interests and the classification is the least restrictive means available. The only narrow exception was the Dougall case, where the exclusion is from the state’s “governmental function” or “political function.” To determine this exception, a two-part test is used. First, the classification must not be too under- or over-inclusive. Second, the exclusion must only apply to “persons holding state elective or important nonelective executive, legislative and judicial positions,” i.e. those that “participate directly in the formulation, execution, or review of broad public policy.” This is a very narrow exception. Notaries public do not fall within the “political function” exception, because their duties are “clerical and ministerial” rather than the exercise of broad discretion or policy.
6. Notes: Federal restrictions on aliens were addressed in Hampton v. Mow Sun Wong (invalidating a federal bar on aliens holding competitive civil service positions), and Mathews v. Diaz, (upholding a restriction on alien eligibility for federal Medicare conditioned on (a) admission for permanent residence, and (b) continuous residence in the U.S. for five years.)
1. Foley v. Connelie, (1978); pg. 682, briefed 2/7/96
2. Facts: New York had a law barring aliens from becoming state troopers.
3. Issue: Whether the law barring aliens from becoming state troopers was a violation of equal protection.
4. Holding: No.
5. Reasoning: Dougall carved out an exception to the strict scrutiny for alienage-based state classifications - i.e., where the power the state is exercising is clearly within its “governmental function” or “political function.” Otherwise, there would be no benefit to citizenship. Thus, in these cases, rational relationship is the appropriate standard. Since police officers exercise a very broad discretion in enforcement of laws, it would be as anomolous to say that a citizen could be exposed to the broad discretion of a non-citzen police officer as it would be to say that judges and juries can be made up of aliens. Thus, citizenship bears a rational relationship to law enforcement.
6. Notes: In Amach v. Norwick, the court applied the Dougall exception and Foley to hold that a state may refuse to employ teachers who are eligible for naturalization, but refuse it, stating that less demanding scrutiny is required where aliens are excluded from “state functions” that were part of the state’s “governmental function.”
