Permissibility Under the Equal Protection Clause of State Legislation That Treats
Deferred Action Beneficiaries Differently Than Other Lawfully Present Aliens
By: Ben Stanley
December 11, 2014
Against a backdrop of an ongoing congressional stalemate on immigration reform, President Obama has
acted on several high profile occasions to shield certain groups of unlawfully present aliens from
removal from the United States, primarily through the use of prosecutorial discretion. The first of these
initiatives was the Deferred Action for Childhood Arrivals (DACA) initiative, announced in June of 2012,
under which certain aliens who were brought to the United States as children are shielded from removal
and granted work authorization for renewable periods of two years.1 The second initiative, announced
in November of 2014, includes an expansion of the DACA program and an extension of deferred action
to parents of lawful permanent residents and citizens, among other components.2 It is estimated that as
many as five and a half million people may directly benefit from these initiatives.3
State legislators who oppose these initiatives may be relatively powerless to stop them, but does that
necessarily mean that state legislatures are precluded from opposing these initiatives by treating the
beneficiaries of them differently than other lawfully present aliens? In other words, is it permissible for
states to differentiate between those who are lawfully present as a result of executive action and those
who are lawfully present by virtue of having followed more traditional avenues to lawful presence?
This article examines this question from an Equal Protection standpoint and concludes that it is unclear
whether or not state laws that differentiate between deferred action beneficiaries and other lawfully
present aliens are permissible or not. This article does not examine the related question of whether or
not such laws are preempted by federal law, but it is worth noting that in almost every case discussed
herein, the reviewing court found that the challenged state law was preempted only when it also found
that there was an Equal Protection problem. In other words, courts' Equal Protection holdings appear to
be often determinative of their preemption holdings.
1
"Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children",
Secretary of Homeland Security Janet Napolitano (June 15, 2012). available at
http://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-aschildren.pdf (last visited 11/24/2014).
2
See generally http://www.uscis.gov/immigrationaction (last visited 11/24/2014).
3
See "Number of I-821D, Consideration of Deferred Action for Childhood Arrivals by Fiscal Year, Quarter, Intake,
Biometrics and Case Status: 2012-2014", available at
http://www.uscis.gov/sites/default/files/USCIS/Resources/Reports%20and%20Studies/Immigration%20Forms%20
Data/All%20Form%20Types/DACA/I821d_daca_fy2014qtr2.pdf (last visited November 24, 2014)(reporting that
close to 550,000 DACA applications had been approved through March of 2014). See also, "Obama, Daring
Congress, Acts to Overhaul Immigration", New York Times (November 20, 2014), available at
http://www.nytimes.com/2014/11/21/us/obama-immigration-speech.html (last visited November 24,
2014)(suggesting that as many as five million could be shielded from deportation as a result of the executive
actions announced on November 20, 2014.
Equal Protection as a Potential Obstacle to the Type of State Laws in Question
Once an undocumented alien becomes a beneficiary of deferred action, the alien is lawfully present in
the United States4 and a state law that treats deferred action beneficiaries differently than other aliens
is therefore one that distinguishes one subgroup of lawfully present aliens from other lawfully present
aliens. The most significant challenge to such laws is likely to be the Equal Protection Clause of the
United States Constitution.5 The bedrock principle of Equal Protection jurisprudence is that states are
generally free to legislatively distinguish between groups of individuals so long as those distinctions have
a rational basis.6 Where, however, a state law draws a distinction that impinges on the exercise of a
fundamental right or that discriminates against a "suspect class"—such as a particular race, religion,
national origin, etc.—the state law at issue will be subject to strict judicial scrutiny and will almost
always be struck down.
A number of cases have established that aliens are a suspect class and accordingly that state laws that
distinguish between aliens and citizens are subject to strict judicial scrutiny.7 In one of the seminal cases
on the subject, Graham v. Richardson, the United States Supreme Court summarized its past decisions
on the issue as follows:
[T]he Court’s decisions have established that classifications based on alienage, like those based
on nationality or race, are inherently suspect and subject to close judicial scrutiny. Aliens as a
class are a prime example of a ‘discrete and insular’ minority …for whom such heightened
judicial solicitude is appropriate. Accordingly, it was said in [another case] that ‘the power of a
state to apply its laws exclusively to its alien inhabitants as a class is confined within narrow
limits.’8
Laws that are subject to strict scrutiny are almost always struck down when challenged and so the
practical effect of this language is to more or less prohibit states from legislating in a way that
distinguishes between aliens and citizens.
4
This is not the same as having lawful immigration status. For a brief discussion of the distinction between lawful
presence and lawful status, see the letter from Chief Deputy Attorney General Grayson G. Kelley to J. Eric Boyette,
Acting Commissioner of the North Carolina Division of Motor Vehicles dated January 17, 2013, available at
http://www.ncdoj.gov/News-and-Alerts/News-Releases-and-Advisories/Related-Information/Boyette,-Eric-1-172013.aspx (last visited November 25, 2014).
5
U.S. Const. amend. XIV § 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" (emphasis added)).
6
See e.g., Graham v. Richardson, 403 U.S. 365, 371 (1971)("Under traditional equal protection principles, a State
retains broad discretion to classify as long as its classification has a reasonable basis.").
7
See e.g., Graham v. Richardson, 403 U.S. 365 (1971).
8
Graham, 403 U.S. at 371-372 (internal citations omitted).
The question that is the subject of this article, however, is not whether a state may permissibly
distinguish between aliens and citizens but whether a state may permissibly distinguish one subgroup of
lawfully present aliens—such as deferred action beneficiaries—from other lawfully present aliens. The
question, in other words, is whether the State may permissibly make distinctions within the group of
lawfully present aliens. Graham v. Richardson doesn't definitively answer this question.
One of the first United States Supreme Court cases to explicitly address the permissibility of state laws
that discriminate "within the class of [lawful] aliens" was the 1971 case of Nyquist v. Mauclet.9 Nyquist
was a challenge to a state law that made various forms of higher education assistance available to
residents of the state but only to those residents who were U.S. citizens, had applied for citizenship, or
who agreed to apply for citizenship once they were eligible to do so. In other words, with respect to
lawfully present aliens, the law created two subgroups: lawfully present aliens who had applied for
citizenship or who pledged to do so when they were eligible to on the one hand, and lawfully present
aliens who had neither applied for citizenship nor intended to do so on the other. Two lawful permanent
resident aliens who wanted to take advantage of the education assistance benefits but who refused to
apply for United State citizenship challenged the law on Equal Protection grounds.
The State argued that the challenged statute was not one that distinguished between citizens and aliens
and so it should not be subject to strict scrutiny. The basis for this assertion was that some aliens—those
who had applied for citizenship or had said they intended to do so as soon as they became eligible to do
so—were eligible for the higher education assistance benefits and so the law distinguished, the state
argued, "only within the heterogeneous class of aliens and…not…between citizens and aliens."10
The Court rejected this argument and in striking down the state law held that the fact that the
challenged statute was "directed at aliens and that only aliens are harmed by it" was sufficient to render
it subject to strict scrutiny and that "[t]he fact that the statute is not an absolute bar [to aliens receiving
the education assistance benefits] does not mean that it does not discriminate against the class."11
Nyquist, therefore, appeared to establish a fairly straightforward test: a law that distinguishes between
subgroups of lawfully present aliens—such as between deferred action beneficiaries and other lawfully
present aliens—will be subject to scrutiny if it is directed at aliens and if only aliens are harmed by it.
Despite this relatively straightforward formulation, however, a circuit split has developed between
federal appeals courts attempting to apply the holdings in Graham, Nyquist, and related cases. The
result is that state laws that treat deferred action beneficiaries differently than other lawfully present
aliens are likely to be upheld in the Fifth and Sixth Circuits and struck down in the Second and Ninth
Circuits. These opposing interpretations are discussed below.
Interpretation #1: State Laws That Treat Deferred Action Beneficiaries Differently Than Other Lawfully
Present Aliens Are Subject Only to Rationale Basis Review Because They Only Affect Nonimmigrant
Aliens
9
432 U.S. 1.
Nyquist, 432 U.S. at 8 (internal quotation marks omitted).
11
Id. at 9.
10
In the Fifth Circuit case of LeClerc v. Webb,12 plaintiffs challenged a Louisiana Supreme Court rule that
prohibited nonimmigrant aliens from sitting for the Louisiana Bar. Because the challenged law treated
one subgroup of lawfully present aliens (nonimmigrants) differently than another subgroup of lawfully
present aliens (lawful permanent residents), plaintiffs argued that it was subject to strict scrutiny under
the holding in Nyquist and related cases.
After acknowledging that the Supreme Court precedent contained "some ambiguity," the court rejected
the notion that state laws that discriminated against nonimmigrant aliens were subject to strict scrutiny:
Despite some ambiguity in Supreme Court precedent, we conclude that because [the rule being
challenged] affects only nonimmigrant aliens, it is subject to rational basis review….Beginning in
1971, the Court has applied some variation of strict scrutiny to invalidate state laws affecting
"resident aliens" or "permanent resident aliens"….The Court has never applied strict scrutiny
review to a state law affecting any other alienage classifications, e.g., illegal aliens, the children
of illegal aliens, or nonimmigrant aliens….The development of this jurisprudence is consistent
with the Court's fundamental rationale for applying strict scrutiny review exclusively to resident
aliens: The state laws at issue in Graham, Nyquist, de Otero, and Griffiths warranted close
judicial scrutiny because they took positions seemingly inconsistent with the congressional
determination to admit the alien to permanent residence….Contrary to plaintiffs' contention,
nonimmigrant aliens—who ordinarily stipulate before entry to this country that they have no
intention of abandoning their native citizenship, and who enter with no enforceable claim to
establishing permanent residence or ties here—need not be accorded the extraordinary
protection of strict scrutiny by virtue of their alien status alone….We decline to extend the
Supreme Court's decisions concerning resident aliens to different alien categories when the
Court itself has shied away from such expansion.13
The court, in other words, looked beyond the straightforward test formulated in Nyquist and instead
focused on the fact that in all cases in which the Supreme Court had applied strict scrutiny, the state law
at issue discriminated against lawful permanent residents rather than nonimmigrant aliens. As a result,
it arrived at a standard under which state laws that discriminate within the group of lawfully present
aliens will be upheld so long as they discriminate only against nonimmigrant aliens. Since the
beneficiaries of deferred action are nonimmigrant aliens, rather than lawful permanent residents, a
court applying this analysis would conclude that such state laws are not subject to strict scrutiny.
The Sixth Circuit case of League of United Latin American Citizens v. Bredesen14 concerned Tennessee's
drivers license statutes, under which only citizens and lawful permanent residents were eligible for
drivers licenses proper while nonimmigrant aliens and undocumented aliens were eligible for a driving
certificate. Driving certificates allowed the holder to drive under the same conditions as drivers licenses
but included a statement stating that the certificate was valid for driving purposes only, not for
identification.
12
419 F.3d 405 (2005), reh'g en banc denied, 444 F.3d 428 (2006).
LeClerc, 419 F.3d at 415-419 (internal citations and quotations omitted).
14
500 F.3d 523 (6th Cir. 2007).
13
Plaintiffs argued among other things that because the law treated nonimmigrant aliens differently than
it treated lawful permanent resident aliens it was one that made distinctions between subgroups of
lawfully present aliens and was consequently subject to strict scrutiny under the holding in Nyquist.
In language that explicitly referred to the Fifth Circuit's LeClerc decision, the court rejected this
argument for virtually identical reasons as those set forth by the Fifth Circuit:
In LeClerc, the Fifth Circuit noted that, although classifications based on alienage are inherently
suspect, the Supreme Court has employed strict scrutiny with respect to only one subclass of
aliens: lawful permanent residents….The LeClerc court explained at length why lawful temporary
resident aliens, or "nonimmigrant aliens," are not entitled to the same protection as lawful
permanent resident aliens. In short, the court recognized that permanent resident aliens are
"virtual citizens" who are "legally entrenched in society" but who lack the ability to participate in
the political process. This inability renders them a prime example of a discrete and insular
minority for whom heightened judicial solicitude is appropriate….Temporary resident aliens, on
the other hand, are admitted to the United States only for the duration of their authorized
status, are not permitted to serve in the U.S. military, are subject to strict employment
restrictions, incur differential tax treatment, and may be denied federal welfare benefits.
Because of these aggregate factual and legal differences, the LeClerc court declined to hold that
nonimmigrant lawful temporary resident aliens comprise a suspect class entitled to the
extraordinary protection of strict scrutiny….We find the analysis set forth in LeClerc to be
persuasive.15
Under LeClerc and Bredesen, therefore, a state statute that distinguishes one group of lawfully present
aliens from another will be subject only to rational basis review if the distinction drawn by the
challenged law is one that harms only nonimmigrant aliens. Since DACA beneficiaries are lawfully
present nonimmigrants, a state statute that imposes special burdens on DACA beneficiaries but not on
lawful permanent residents would likely survive an equal protection challenge if the court adopted the
approach taken in the Fifth and Sixth Circuits.
Interpretation #2: State Laws That Treat Deferred Action Beneficiaries Differently Than Other Aliens
Are Either Subject to Strict Scrutiny or Fail Rational Basis Review
The Fifth and Sixth Circuit cases discussed above looked past the actual language of the Nyquist opinion
and instead made a distinction based on which subgroup of lawfully present aliens was affected by the
state laws reviewed in prior Supreme Court cases. In the cases discussed below, by contrast, when the
court reaches the question at all it seems to adhere much more closely to the Nyquist Court's holding
that it if a state law is "directed at aliens and that only aliens are harmed by it" this is sufficient to render
it subject to strict scrutiny.
15
Bredesen, 500 F.3d at 532-533.
The Second Circuit case of Dandamudi v. Tisch,16 was a challenge to a New York statute that provided
that only citizens or lawful permanent residents could be pharmacists and that thereby distinguished
between lawful permanent residents and other lawfully present aliens. Plaintiffs argued among other
things that the disparate treatment accorded to different subgroups of lawful aliens rendered the law
subject to strict scrutiny. The state argued that it did not, and cited LeClerc and Bredesen in support of
its position.
The court agreed with the plaintiffs that the statute was subject to strict scrutiny and concluded that
under a strict scrutiny analysis, the law violated the Equal Protection clause. In reaching this conclusion,
the court began by noting that in each case in which similar issues had arisen before it, the Supreme
Court had begun its discussion by reasserting its commitment to the notion that state laws that single
out aliens for disparate treatment are presumptively unconstitutional absent a showing that the
classification was necessary to fulfill a constitutionally permissible and substantial purpose.17 The
Supreme Court had only recognized a few very narrow exceptions to this rule and New York was, in the
court's eyes, now proposing the existence of another exception: that "the Fourteenth Amendment's
strongest protections should apply only to virtual citizens, like [lawful permanent residents], and not to
other lawfully admitted aliens who require a visa to remain in this country":18
The state reasons that the Supreme Court has never explicitly applied strict scrutiny review to a
statute discriminating against nonimmigrant aliens. That is true, but that argument ignores the
underlying reasoning of the Court in its prior decisions as well as the fact that the Court has
never held that lawfully admitted aliens are outside of Graham's protection. Indeed, the Court
has never distinguished between classes of legal resident aliens. The state's argument that
suspect class protection extends no further than to [lawful permanent residents] simply has no
mooring in the High Court's prior ventures into this area.19
In other words, Supreme Court precedent, in the Second Circuit's view, treats lawfully present aliens as
a whole—and not one particular subgroup of lawfully present aliens—as a discrete and insular minority
worthy of treatment as a suspect class and does not carve out subgroups of lawfully present aliens who
are not worthy of that protection.
In Dandamudi, therefore, the Second Circuit explicitly rejected the Fifth and Sixth Circuit rationale and
instead asserted that "the subclass of aliens known as nonimmigrants who are lawfully admitted to the
United States pursuant to a policy granting those aliens the right to work in the country are part of the
suspect class identified by Graham. Any discrimination by the state against this group is subject to strict
scrutiny review."20
16
686 F.3d 66 (2nd Cir. 2012).
Dandamudi, 686 F.3d at 73.
18
Id. at 74.
19
Id. at 74-75.
20
Id. at 79.
17
On the same side of this question as Dandamudi is the recent Ninth Circuit case of Arizona Dream Act
Coalition v. Brewer.21 In that case, several DACA beneficiaries sought a preliminary injunction to prevent
Arizona officials from enforcing a policy that prevented DACA beneficiaries from obtaining drivers
licenses. The policy in question was in response to an executive order issued by Arizona Governor Jan
Brewer on the same day that DACA took effect:
The executive order warned that, under DACA, the federal government "plan[ned] to issue
employment authorization documents to certain unlawfully present aliens…." The order
directed state agencies to prevent DACA recipients from becoming eligible for any "state
identification, including a driver's license." Governor Brewer later explained that her executive
order was designed to ensure that there would be "no driver licenses for illegal people." In
Governor Brewer's words, DACA recipients "are here illegally and unlawfully in the state of
Arizona….The Obama amnesty plan doesn't make them legally here."22
Arizona law required applicants for driver's licenses to present proof that they were lawfully present in
the United States, and so after the issuance of Governor Brewer's executive order, the Arizona
Department of Transportation revised its policy so that employment authorization documents issued to
DACA beneficiaries would no longer constitute adequate proof of lawful presence in the United States.
Certain categories of lawfully present aliens who were beneficiaries of other forms of deferred action,
however, continued to be eligible to apply for drivers licenses, and so the policy was one that
distinguished between one subgroup of lawfully present nonimmigrants and another subgroup of
lawfully present nonimmigrants.
The court began by concluding that the Arizona policy singled out DACA beneficiaries for disparate
treatment, and one would have expected that the next step in the analysis would be the determination
of the appropriate level of scrutiny to apply to the policy in question. Instead, the court took the unusual
step of concluding that this was not necessary because the policy likely did not even have a rational
basis.
In reaching this conclusion, the court noted that in order to survive rational basis review, Arizona's
treatment of DACA beneficiaries must be "rationally related to a legitimate state interest."23 The court
could not, however, identify a legitimate state interest rationally related to Arizona's decision to treat
DACA beneficiaries differently than other lawfully present aliens:
We discern no rational relationship between Defendants' policy and a legitimate state
interest. Instead, in purporting to distinguish between these categories, Arizona assumes for
itself the federal prerogative of classifying noncitizens—despite the fact that the States enjoy no
power with respect to the classification of aliens….Defendants' enjoy no power with respect to
the classification of aliens…so their attempt to distinguish noncitizens on the basis of an
21
757 F.3d 1053 (9th Cir. 2014).
Id. at 1059.
23
Id. at 1065.
22
immigration classification that has no basis in federal law is not likely to withstand equal
protection scrutiny.24
While it is of course correct to say that the Ninth Circuit did not actually reach the question of what level
of scrutiny to give to the sort of state laws that are the subject of this article, that observation misses
the point. The Ninth Circuit's holding identified a separate but related potential obstacle to state laws
that treat beneficiaries of deferred action differently than other lawfully present aliens. Namely, a state
law that makes such a distinction makes a distinction that has no basis in federal law, and given the
plenary nature of the federal government's power over immigration law and policy, this may be enough
to deprive the state law of even a rational basis.
When read together, Dandamudi and Arizona Dream Act Coalition stand for the proposition that state
laws that treat deferred action beneficiaries differently than other lawfully present aliens are likely
invalid under the Equal Protection clause, either because they do not satisfy strict scrutiny or because
they fail to satisfy even rational basis review.
Conclusion
The question of whether state laws that single out deferred action beneficiaries for special treatment
are permissible under the Equal Protection Clause is one that is likely to arise with increasing frequency
as state legislatures across the country seek to grapple with the President's deferred action initiatives.
Hopefully, the U.S. Supreme Court will resolve the circuit split that has made answering this question
impossible for the time being.
-----------------------------------Ben Stanley is a Principal Legislative Analyst and Staff Attorney with the Bill Drafting Division of the
North Carolina General Assembly. He can be reached at [email protected]. The views expressed
are those of the writer and not of the General Assembly or the Legislative Services Office.
24
Id.