Article by John W. Guendelsberger
This Article uses a comparative approach to analyze why it is that alienage discrimination, condemned as unreasonable and irrational in France, is virtually unreviewable at the national level in the United States. In particular, it compares French and American constitutional limits on governmental discretion to exclude resident aliens from participation in public benefit programs. While these limits have been shaped in each nation by judicial application of equal protection, the French and American systems have produced strikingly different results.
Over the last few decades, France has gradually moved toward more equal treatment of citizens and resident foreigners. In 1990, the French Conseil Constitutionnel, the body responsible for judicial review of legislative acts, held that aliens regularly residing in France must be afforded access to public benefit programs on the same terms as French citizens. In its decision, the Conseil Constitutionnel annulled a parliamentary amendment that would have excluded resident aliens from access to benefits of the National Solidarity Fund, a need-based benefit program for incapacitated elderly persons.
The American approach to judicial review of limitations on access to benefits depends on whether the limitations are imposed at the state or federal level. At the state level, since the Supreme Court's 1971 decision in Graham v. Richardson recognized aliens as a suspect class, distinctions between permanent resident aliens and citizens have rarely survived the Fourteenth Amendment equal protection challenge, a result which corresponds closely to that of the recent French Solidarity Fund decision.
At the federal level, however, the Supreme Court's approach to examining classifications based on alienage for violation of Fifth Amendment equal protection differs markedly from the French Solidarity Fund decision. In 1976, in Mathews v. Diaz, the Court upheld a provision excluding any alien who was not a permanent resident with five years of continuous residence in the United States from participation in the Medicare supplemental medical insurance program. The Court reasoned that it would defer to Congress and the executive in cases involving resident alien access to federal benefits in order not to “inhibit the flexibility of the political branches of government.” The relaxed standard of review and the placement of the burden of proof on the alien plaintiff erected a practically impenetrable barrier to a successful Fifth Amendment equal protection challenge. The Court's deferential approach was critical to the result, for the district court in Diaz had found that the five-year durational residency requirement failed even the rational basis test.
Since the 1976 decision in Diaz, Congress has created new limitations on resident alien access to social benefits. In 1980, it enacted “deeming” provisions that attribute to resident aliens the income and resources of friends or relatives who agree to serve as “sponsors” at the time of entry. Thus, for resident aliens whose admission is sponsored, access to Supplemental Security Income (SSI), Medicaid, and Food Stamps is indirectly eliminated during the first three years after entry.
More recently, the Immigration Reform and Control Act of 1986 accepted long-term clandestine aliens into the social and cultural mainstream of American life but barred them from participation in major federal benefit programs until five years after they obtain temporary resident status. The Act also authorized state and local governments to exclude newly legalized resident aliens from programs of financial assistance and Medicaid during the first five years after they obtained temporary resident status.
Before examining the alien benefits decisions, this Article considers the general approaches to judicial review of alienage discrimination in the two nations. In the United States, the Supreme Court has refused to engage in more than cursory review of federal laws concerning aliens, leaving legislative line-drawing in this area to the nearly unfettered discretion of Congress. The French Conseil Constitutionnel has not expressed the same reluctance to become involved in review of legislation directed at aliens. This fundamental difference in the French and American approaches to judicial review of laws affecting aliens accounts, at least in part, for the divergent decisions concerning equal protection for alien access to governmental benefits at the national level.
Part III of this Article examines the Solidarity Fund decision in order to determine its likely scope and import. All indications are that the Conseil has taken a very broad approach to defining (1) the categories of aliens entitled to equal treatment and (2) the range of benefit programs to which these categories of aliens must be afforded equal access. Little in the way of analysis is included in the succinct decisions rendered by the Conseil. As a result, it is necessary to read between the lines of the Solidarity Fund decision in order to divine what must have been, or most likely was, the Conseil's rationale.
Many factors could account for different results in the two systems. First, the abstract nature of the French Conseil Constitutionnel's judicial review is quite distinct from the fact-specific review that occurs in the United States Supreme Court. Second, social welfare programs have traditionally been afforded more emphasis in the French system than in the American. Third, federalism concerns in the United States may also partially account for differences in the substantive law. While recognizing these factors, this Article focuses on the differences in the mechanics of the equal protection approaches and in the basic social values that have shaped equal protection results in this area.
Part IV attempts to reconstruct the equal protection approach used by the Conseil Constitutionnel in the Solidarity Fund decision. The pieces to this puzzle are scattered among other equal protection decisions of the Conseil Constitutionnel and the Conseil d'Etat. These decisions reveal that equal protection analysis in France is quite similar to that in the United States, and that the normal level of scrutiny employed in French equal protection corresponds most closely to intermediate level scrutiny in the United States.
Part IV also analyzes the fundamental differences in the ordering of societal values and constitutional rights that have affected equal protection analysis in the alien benefits area. The French emphasis on community and solidarity among citizens and newly admitted resident aliens coincides with its more egalitarian approach to affording benefits. The American approach, by way of contrast, reflects remnants of the myths of rugged individualism and self-sufficiency. Newcomers, even those accepted for permanent residence, must earn tenure by proving their ability to compete in the American marketplace.
Drawing from recent French developments, Part V suggests that the American Constitution demands a more rigorous approach to examining the lines drawn by the political branches in the area of alien access to government benefits than that applied by the Court in Diaz. The Court need not move to intermediate or strict scrutiny. Even under the rational basis test, no legitimate reason exists for denying resident aliens social benefits at the national level. As a matter of equal protection and respect for human dignity, those who have been invited to reside here as permanent resident aliens should be afforded the same right to benefits as are citizens.
A troubling aspect of the alien benefits issue is that it shades imperceptibly into the problem of immigration control. If it is accepted that Congress has unreviewable control over admission, why can it not condition admission of permanent resident aliens on their agreement to forego benefits? Part VI addresses the issue of indirect denial of benefits through deeming provisions or neutral durational residency requirements. It suggests that these techniques for limiting access to benefits for permanent resident aliens also violate equal protection.
About the Author
John W. Guendelsberger. Professor of Law, Ohio Northern University College of Law.
Citation
67 Tul. L. Rev. 669 (1993)