237) In light of its finding that Maine had drawn no distinctions based on alienage
, the court found it unnecessary to reach the issue of whether Maine was following a uniform federal policy.
79) The Supreme Court has held that the Equal Protection Clause applies to noncitizens, (80) and that as a general rule strict scrutiny applies to facial discrimination on the basis of alienage
Romero, The Congruence Principle Applied: Rethinking Equal Protection Review of Federal Alienage
Classifications After Adarand Constructors, Inc.
But these sorts of examples are the exceptions and, more importantly, do not capture what we have today: a dormant Congress, an executive branch unable or unwilling to enforce existing removal statutes, unprecedented levels of state and local alienage
regulation, and a mostly inert exclusivity principle.
Consider in this respect the Court's approach to alienage
classifications under the Equal Protection Clause.
87) The Supreme Court determined that legal alienage
is a suspect class, and laws discriminating against a suspect class are generally subject to strict scrutiny.
11 (1977) (treating alienage
as a suspect classification, even though alienage
may sometimes be changed through naturalization).
As De Genova (2010) argues, with deportation, "the whole totalizing regime of citizenship and alienage
A heavy preponderance of legal scholarship supports the proposition that the ratification debates taken as a whole indicate that the 14th Amendment was designed to extend citizenship to all people born in the United States regardless of the race, ethnicity or alienage
of their parents.
Bosniak, Membership, Equality, and the Difference that Alienage
Makes, 69 N.
Supreme Court ruled that the provision relieves citizens moving from one state to another "from the disabilities of alienage
in other states.
heightened scrutiny: race, (44) national origin, (45) alienage