Foley v. Connelie

435 U.S. 291

Case Year: 1978

Case Ruling: 6-3, Affirmed

Opinion Justice: Burger

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Powell, Rehnquist, Stewart, White


1st Concurring Opinion

Author: Stewart


1st Dissenting Opinion

Author: Marshall


2nd Concurring Opinion

Author: Blackmun


2nd Dissenting Opinion

Author: Stevens

Joiner(s): Brennan

3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


Edmund Foley was a legal resident alien of New York State who would become a naturalized citizen once the required waiting period was over. He wanted to become a state trooper, a position filled by competitive examination. State officials, however, refused to allow him to take the test because of a New York statute that held that "No person shall be appointed to the New York state police force unless he shall be a citizen of the United States." Foley filed suit against William G. Connelie, superintendent of the New York State Police, to have the prohibition declared an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment. The lower court upheld the validity of the law.



... 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, 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 (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 (1971), a treatment deemed necessary since aliens--pending their eligibility for citizenship--have no direct voice in the political processes....

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."... 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.... 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," as part of the sovereign's obligation "`to preserve the basic conception of a political community.'"

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."... 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.... Similar considerations support a legislative determination to exclude aliens from jury service.... 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."... 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.

The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.

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. 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.... They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, ... or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways....

An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper--for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations--can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations--for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct.

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.... 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 generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make....

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, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions. Police officers very clearly fall within the category of "important nonelective ... officers who participate directly in the ... execution ... of broad public policy." In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.

Accordingly, the judgment of the District Court is



Almost a century ago, in the landmark case of Yick Wo v. Hopkins (1886), this Court recognized that aliens are "persons" within the meaning of the Fourteenth Amendment. Eighty-five years later, in Graham v. Richardson (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 that such discrimination could not survive strict scrutiny....

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 [1973] 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." I do not agree with the Court that state troopers perform functions placing them within this "narrow ... exception" ... 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 execute the public policy that fires should be extinguished, and sanitation workers execute the public policy that streets should be kept clean, state troopers execute the public policy that persons believed to have committed crimes should be arrested. But this fact simply demonstrates that the Sugarman exception, if read without regard to its context, "would swallow the rule."... Although every state employee is charged with the "execution" of public policy, Sugarman unambiguously holds that a blanket exclusion of aliens from state jobs is unconstitutional.

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. In my view, the job of state trooper is not one of those positions....


... [O]ur 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 fall....

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.