FOLEY v. CONNELIE, SUPERINTENDENT OF NEW YORK STATE POLICE, ET AL.
No. 76-839
Supreme Court of the United States
Argued November 8, 1977—Decided March 22, 1978
435 U.S. 291
Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellees. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.*
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. 430 U. S. 944 (1977).
The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute,
“No person shall be appointed to the New York state police force unless he shall be a citizen of the United States.”
Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State‘s exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge
I
The essential facts in this case are uncontroverted.
A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed.
II
Appellant claims that the relevant New York statute violates his rights under the Equal Protection Clause.
The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country,2 which is not surprising for we have often been described as “a nation of immigrants.” Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, 413 U. S. 634, 648 (1973). Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on aliens with “heightened judicial solicitude,” Graham v. Richardson, 403 U. S. 365, 372 (1971), a treatment deemed necessary since aliens—pending their eligibility for citizenship—have no direct voice in the political processes. See United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938).3
It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of “strict scrutiny,” because to do so would “obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.” Mauclet, supra, at 14 (BURGER, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized “a State‘s historical power to exclude aliens from participation in its democratic political institutions,” Dougall, supra, at 648, as
The practical consequence of this theory is that “our scrutiny will not be so demanding where we deal with matters firmly within a State‘s constitutional prerogatives.” Dougall, supra, at 648. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U. S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), aff‘d, 426 U. S. 913 (1976). Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those “important nonelective executive, legislative, and judicial positions,” held by “officers who participate directly in the formulation, execution, or review of broad public policy.” Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.5
III
A discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers.6 The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, 392 U. S. 1 (1968). They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, 357 U. S. 301 (1958), or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, 434 U. S. 106 (1977).
Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals.7 The office of a policeman is in no sense one of “the common occupations of the community” that the then Mr. Justice Hughes referred to in Truax v. Raich, 239 U. S. 33, 41 (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” who exercises no broad power over people gen-
In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens,8 whom the State may reasonably presume to be more familiar with and sym-
Accordingly, the judgment of the District Court is
Affirmed.
MR. JUSTICE STEWART, concurring.
The dissenting opinions convincingly demonstrate that it is difficult if not impossible to reconcile the Court‘s judgment in this case with the full sweep of the reasoning and authority of some of our past decisions. It is only because I have become increasingly doubtful about the validity of those decisions (in at least some of which I concurred) that I join the opinion of the Court in this case.
MR. JUSTICE BLACKMUN, concurring in the result.
Once again the Court is called upon to adjudicate the constitutionality of one of New York‘s many statutes that impose
The Court‘s prior cases clearly establish the standards to be applied in this one. Mauclet, of course, decided just last Term, is our most recent pronouncement in this area of constitutional law. There, citing Graham v. Richardson, 403 U. S., at 372, we observed once again that a State‘s classifications based on alienage “are inherently suspect and subject to close judicial scrutiny,” and, citing Flores de Otero, 426 U. S., at 605, we went on to say that “the governmental interest claimed to justify the discrimination is to be carefully examined in order to determine whether that interest is legitimate and substantial, and inquiry must be made whether the means adopted to achieve the goal are necessary and precisely drawn.” 432 U. S., at 7. In the same opinion, however, limitations were intimated when, citing Sugarman v. Dougall, 413 U. S., at 642 and 647, we said:
“[T]he State‘s interest ‘in establishing its own form of government, and in limiting participation in that government to those who are within “the basic conception of a
political community“’ might justify some consideration of alienage. But as Sugarman makes quite clear, the Court had in mind a State‘s historical and constitutional powers to define the qualifications of voters, or of ‘elective or important nonelective’ officials ‘who participate directly in the formulation, execution, or review of broad public policy.’ [413 U. S.], at 647. See id., at 648.” 432 U. S., at 11.
When the State is so acting, it need justify its discriminatory classifications only by showing some rational relationship between its interest in preserving the political community and the classification it employs.
I agree with the Court‘s conclusion that the State of New York has vested its state troopers with powers and duties that are basic to the function of state government. The State may rationally conclude that those who are to execute these duties should be limited to persons who can be presumed to share in the values of its political community as, for example, those who possess citizenship status. New York, therefore, consistent with the Federal Constitution, may preclude aliens from serving as state troopers.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, dissenting.
Almost a century ago, in the landmark case of Yick Wo v. Hopkins, 118 U. S. 356, 369 (1886), this Court recognized that aliens are “persons” within the meaning of the Fourteenth Amendment. Eighty-five years later, in Graham v. Richardson, 403 U. S. 365, 372, 376 (1971), the Court concluded that aliens constitute a “‘discrete and insular’ minority,” and that laws singling them out for unfavorable treatment “are therefore subject to strict judicial scrutiny.” During the ensuing six Terms, we have invalidated state laws discriminating against aliens on four separate occasions, finding
Today the Court upholds a law excluding aliens from public employment as state troopers. It bases its decision largely on dictum from Sugarman v. Dougall, supra, to the effect that aliens may be barred from holding “state elective or important nonelective executive, legislative, and judicial positions,” because persons in these positions “participate directly in the formulation, execution, or review of broad public policy.” 413 U. S., at 647.1 I do not agree with the Court that state troopers perform functions placing them within this “narrow exception,” Nyquist v. Mauclet, supra, at 11, to our usual rule that discrimination against aliens is presumptively unconstitutional. Accordingly I dissent.
In one sense, of course, it is true that state troopers participate in the execution of public policy. Just as firefighters
Thus the phrase “execution of broad public policy” in Sugarman cannot be read to mean simply the carrying out of government programs, but rather must be interpreted to include responsibility for actually setting government policy pursuant to a delegation of substantial authority from the legislature. The head of an executive agency, for example, charged with promulgating complex regulations under a statute, executes broad public policy in a sense that file clerks in the agency clearly do not. In short, as Sugarman indicates, those “elective or important nonelective” positions that involve broad policymaking responsibilities are the only state jobs from which aliens as a group may constitutionally be excluded. 413 U. S., at 647. In my view, the job of state trooper is not one of those positions.
There is a vast difference between the formulation and execution of broad public policy and the application of that policy to specific factual settings. While the Court is correct that “the exercise of police authority calls for a very high degree of judgment and discretion,” ante, at 298, the judgments required are factual in nature; the policy judgments that govern an officer‘s conduct are contained in the Federal and State Constitutions, statutes, and regulations.2 The officer
“When a court evaluates police conduct relating to an arrest its guideline is ‘good faith and probable cause.’ In the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices—whether the formulation of policy, of legislation, of budgets, or of day-to-day decisions—is virtually infinite. . . . [S]ince the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility, the range of discretion must be comparably broad.” Scheuer v. Rhodes, 416 U. S. 232, 245-247 (1974) (citation omitted).
The Court places great reliance on the fact that policemen make arrests and perform searches, often “without prior judicial authority.” Ante, at 298. I certainly agree that “[an] arrest is a serious matter,” ibid., and that we should be
In Griffiths we held that the State could not limit the practice of law to citizens, “despite a recognition of the vital public and political role of attorneys,” Nyquist v. Mauclet, 432 U. S., at 11. It is similarly not a denigration of the important public role of the state trooper—who, as the Court notes, ante, at 297, operates “in the most sensitive areas of daily life“—to find that his law enforcement responsibilities do not “make him a formulator of government policy.” In re Griffiths, 413 U. S., at 729. Since no other rational reason, let alone a compelling state interest, has been advanced in sup-
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN joins, dissenting.
A State should, of course, scrutinize closely the qualifications of those who perform professional services within its borders. Police officers, like lawyers, must be qualified in their field of expertise and must be trustworthy. Detailed review of each individual‘s application for employment is therefore appropriate. Conversely, a rule which disqualifies an entire class of persons from professional employment is doubly objectionable. It denies the State access to unique individual talent; it also denies opportunity to individuals on the basis of characteristics that the group is thought to possess.
The first objection poses a question of policy rather than
No one suggests that aliens as a class lack the intelligence or the courage to serve the public as police officers. The disqualifying characteristic is apparently a foreign allegiance which raises a doubt concerning trustworthiness and loyalty so pervasive that a flat ban against the employment of any alien in any law enforcement position is thought to be justified. But if the integrity of all aliens is suspect, why may not a State deny aliens the right to practice law? Are untrustworthy or disloyal lawyers more tolerable than untrustworthy or disloyal policemen? Or is the legal profession better able to detect such characteristics on an individual basis than is the police department? Unless the Court repudiates its holding in In re Griffiths, 413 U. S. 717, it must reject any conclusive presumption that aliens, as a class, are disloyal or untrustworthy.1
A characteristic that all members of the class do possess may provide the historical explanation for their exclusion from some categories of public employment. Aliens do not vote. Aliens and their families were therefore unlikely to have been beneficiaries of the patronage system which controlled access to public employment during so much of our history. The widespread exclusion of aliens from such positions today may
Even if patronage never influenced the selection of police officers in New York, reference to the law governing denial of public employment for political reasons is nevertheless instructive. In Elrod v. Burns, 427 U. S. 347, the Court held that most public employees are protected from discharge because of their political beliefs but recognized that an exception was required for policymaking officials.3 The exception identified in Burns was essentially the same as the category of “officers who participate directly in the formulation, execution, or review of broad public policy” described in Sugarman v. Dougall, 413 U. S. 634, 647. In both cases the special nature of the policymaking position was recognized as justifying a form of discriminatory treatment that could not be applied to regular employees.
Since the Court does not purport to disturb the teaching of Sugarman, this transformation must rest on the unarticulated premise that the police function is at “the heart of representative government” and therefore all persons employed by the institutions performing that function “participate directly in the formulation, execution, or review of broad public policy . . . .” Sugarman v. Dougall, supra, at 647. In my judgment, to state the premise is to refute it. Respect for the law enforcement profession and its essential function, like respect for the military, should not cause us to lose sight of the fact that in our representative democracy neither the constabulary nor the military is vested with broad policymaking responsibility. Instead, each implements the basic policies formulated directly or indirectly by the citizenry. Under the standards announced in Sugarman, therefore, a blanket exclusion of aliens from this particular governmental institution is especially inappropriate.
The Court‘s misapprehension of the role of the institutionalized police function in a democratic society obfuscates the true significance of the distinction between citizenship and alienage. The privilege of participating in the formulation
In final analysis, therefore, our society is governed by its citizens. But it is a government of and for all persons subject to its jurisdiction, and the Constitution commands their equal treatment. Although a State may deny the alien the right to participate in the making of policy, it may not deny him equal access to employment opportunities without a good and relevant reason. Sugarman plainly teaches us that the burgeoning public employment market cannot be totally foreclosed to aliens. Since the police officer is not a policymaker in this country, the total exclusion of aliens from the police force must fail.
Even if the Court rejects this analysis, it should not uphold a statutory discrimination against aliens, as a class, without expressly identifying the group characteristic that justifies the
Because the Court‘s unique decision fails either to apply or to reject established rules of law, and for the reasons stated by MR. JUSTICE MARSHALL, I respectfully dissent.