Nyquist v. Mauclet, 432 U.S. 1 (1977)

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE STEWART join, dissenting.

I am persuaded, for the reasons set forth in MR. JUSTICE REHNQUIST’s dissent, that New York’s scheme of financial assistance to higher education does not discriminate against a suspect class. The line New York has drawn in this case is not between aliens and citizens, but between aliens who prefer to retain foreign citizenship and all others.

The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.

San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 28 (1973). Our prior cases dealing with discrimination against all alien as a class, In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1973), and against subclasses of aliens without regard to ability or willingness to acquire citizenship, Graham v. Richardson, 403 U.S. 365 (1971), do not justify the application of strict judicial scrutiny to the legislative scheme before us today.

I also agree with MR. JUSTICE REHNQUIST that the line New York has drawn in extending scholarship assistance in higher education is a rational one. I see no basis for the Court’s statement that offering incentives to resident alien scholars to become naturalized "is not a permissible [purpose] for a State." Ante at 10. In my view, the States have a substantial interest in encouraging allegiance to the United States on the part of all persons, including resident aliens, who have come to live within their borders. As the New York Legislature declared in enacting a predecessor to the present financial assistance scheme:

The future progress of the state and nation and the general welfare of the people depend upon the individual development of the maximum number of citizens to provide the broad range of leadership, inventive genius, and source of economic and cultural growth for oncoming generations.

1961 N.Y.Laws, c. 389, § 1(a). As long as its program neither discriminates "on the basis of alienage," Graham v. Richardson, supra at 372, nor conflicts with federal immigration and naturalization policy, it is my view that New York legitimately may reserve its scholarship assistance to citizens, and to those resident aliens who declare their intention to become citizens, of both the Nation and the State.

1. Title 8 U.S.C. § 1427(a) allows application for naturalization upon the following conditions:

No person, except as otherwise provided in this subchapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing his petition for naturalization has resided continuously, after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time, and who has resided within the State in which the petitioner filed the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.

Section 1430(a) establishes a three-year residency requirement for aliens whose spouse is a citizen of the United States. See also 8 U.S.C. § 1434. Sections 1430(b), (c), and (d) establish special categories where no prior residence in this country is required. They constitute de minimis exceptions, and may be properly ignored in considering alienage classifications.

2. In In re Griffiths, 413 U.S. 717, 718 n. 1 (1973), the Court noted:

[The plaintiff] is eligible for naturalization by reason of her marriage to a citizen of the United States and residence in the United States for more than three years, 8 U.S.C. § 1430(a). She has not filed a declaration of intention to become a citizen of the United States, 8 U.S.C. § 1445(f), and has no present intention of doing so.

The eligibility of plaintiff in that case, however, was not built into the classification scheme. The state court rule prevented any alien from becoming an attorney, and of course reached those resident aliens who, having not satisfied the jurisdictional prerequisites to citizenship, could not change their disfavored status.

3. As the Court notes, the state statutory scheme is challengeable at all only by resident aliens. Ante at 4. While other aliens are also disqualified by the state statute in question, they are also decisively disqualified by federal law from establishing a permanent residence in this country, see 8 U.S.C. § 1101(a)(15)(F)(i); 22 CFR § 41.45 (1976); cf. 45 CFR § 177.2(a) (1976). Since there is no question of the plenary power of the Federal Government in this area, see Mathews v. Diaz, 426 U.S. 67 (1976), the Court is quite properly concerned only with the category of resident aliens, those "lawfully admitted for permanent residence." 8 U.S.C. § 1101(a)(20). See generally In re Griffiths, supra, at 719-722; Graham v. Richardson, 403 U.S. 365, 371 (1971).

4. The alien, of course, must "give up" (or announce that he intends to give up) his foreign citizenship. See 8 U.S.C. § 1448(a). In this sense, he must do something that members of the other category need not do in order to be eligible for the "favored" treatment. But here what is given up is the factor which distinguishes between the categories. I cannot view this as an impermissible burden which would convert this case into a case like Griffiths or Sugarman.