Public Benefits and Federal Authorization for Alienage Discrimination by the States

Abstract

When Congress enacted new restrictions on alien access to public benefits in 1996, it also authorized the states to restrict alien access to designated federal benefits and to state benefits. Some commentators have argued that state laws that discriminate against aliens should be subject to strict scrutiny, even if authorized by federal legislation, despite the deferential review applied to federal discrimination against aliens. Based on such a theory, the Court of Appeals of New York in Aliessa v. Novello recently struck down a state law despite the federal authorization for that law in the 1996 welfare legislation. This essay raises some questions regarding the policy rationales commonly advanced in favor of strict scrutiny in this context. In particular, the need for a uniform rule of naturalization, the right of interstate travel, antidiscrimination principles, the interests of aliens, and nondelegation concerns fail to provide convincing reasons to apply strict scrutiny to alienage discrimination authorized by federal law.