Do Illegal Aliens Have Constitutional Rights? Yes and No

Amidst all the discussion of President Trump’s immigration order, I saw the question posed: Do illegal aliens have Constitutional rights?  The answer is they clearly do have some, although it is a vast subject and the answer might be different for each right under discussion. 

Before getting into this any further, let me say that I do not mind using the term ‘illegal alien’.  The term is used in the U.S. Code and is accurate.  If you object to the use of the term, I suggest you write your Congressional representative.

Illegal aliens may not have the right to vote but, under current Supreme Court precedent, they do have the right to send their children to public schools for K-12 education.  That was settled in the 1982 case of Plyler v. Doe in which the Court struck down a Texas statute which attempted to deny education funding to illegal aliens and, further, struck down a local school district’s attempt to charge them tuition.

The Court did this under the 14th Amendment equal protection clause. The 14th Amendment, by its terms, talks about guaranteeing the privileges and immunities of U.S. CITIZENS, but goes on to give equal protection rights to PERSONS. The upshot: you don’t have to be a citizen to get equal protection of the law.

There are three levels of equal protection rights.  Suspect classifications like race get strict scrutiny, meaning the government must have a COMPELLING reason to deny equal protection of the law.  The Plyler Court analyzed discrimination against immigrants one notch down, intermediate scrutiny, but found that Texas could not offer even a SUBSTANTIAL interest to justify discriminating against illegal aliens when it comes to K-12 education.

Substantial, compelling - if all this sounds vague and subjective to you, that’s because it is.  There is no rigor and no objective standards in a lot of Supreme Court constitutional analysis.  What is substantial or compelling to one Justice might not be to another, depending on how they feel that day.

It is what it is, and that’s the system we’ve got – with the Supreme Court on top deciding constitutional questions – for now.  It doesn’t always have to be this way, but that’s a subject for another day.

Links

"Illegal Alien": The Proper Terminology
http://www.fairus.org/issue/illegal-alien-the-proper-terminology

Plyler v. Doe (U.S. 1982)
https://en.wikipedia.org/wiki/Plyler_v._Doe