December 2, 2010
Dear City Attorney:
The law governing the question of whether an illegal alien is entitled to a license to carry
on any occupation or trade, except occupations that relate to the “political functions” of
government, is not entirely clear, but it seems that the lack of clarity is due to the way the court
uses the word “alien,.” which they generally speak of in the term of a noncitizen. But as will be
shown below, the principal U.S. Supreme Court cases in the areas of license and trade restrictions
on aliens involve legal aliens, and that the word “alien” in the context of those cases means a
“resident alien” or “legal alien.”
Those cases appear to me to stand for the proposition that a person who is an illegal alien
can be denied a beer or liquor license. Indeed, it appears the law that an illegal alien--theoretically,
at least--cannot be employed in the United States, and that to the extent they are employed depends
on the willingness of employers to hire them, or the falsification of documents suggesting that the
illegal alien is a legal alien.
The question of whether a resident alien could be denied a liquor license arose in Arizona
State Liquor Board v. Cosmo Luigi, 550 P.2d 663 (Ariz. App. 1976). The court’s holding that the
alien in question had a right to the liquor license appears to be instructive on the question of
whether an illegal alien in your City is entitled to the license. In that case, the “Appellee is a 38
year old permanent resident alien who has been a resident of the United States and Arizona since
November 17, 1970....” [At 664]
The court declared that, “The leading principles governing the case at bar were recently
enunciated in Graham v. Richardson, 403 U.S. 365, 371-372, 91 S.Ct. 1848, 1851-1952, 29 L.Ed.
2d. 534 (1971), wherein the court announced”:
‘The Fourteenth Amendment provides, “[N]or shall any State
deprive any person of life, liberty or property, without due process
of law, nor deny to any person within its jurisdiction the equal
protection of the laws.’ It has long been settled and it is not
disputed here, that the term ‘person’ in this context encompasses
lawfully admitted resident aliens as well as citizens of the United
States and entitles both citizens and aliens to the equal protection of
the laws of the State in which they reside. [At 664-65] [Citations
omitted by me.]
December 2, 2010
Page 2
The U.S. Supreme Court in Graham v. Richardson, above, cited for support, among other
cases, Yick Wo v. Hopkins, 118 U.S. 356 (1886), and Takashashi Fish and Game Commission,
334 U.S. 410 (1948).
In Graham v. Richardson, the question was whether several legal aliens from various
countries were entitled to certain welfare benefits based on citizenship or on length of residency in
the United States--15 years in the case of an Arizona statute). The U.S. Supreme Court took great
pains to point out that each of the applicants for welfare benefits were legal residents of the United
States.
The question in Graham, said the Court was:
whether the Equal Protection Clause of the Fourteenth Amendment
prevents a State from conditioning welfare benefits either (a) upon
the beneficiary’s possession of United States citizenship, or (b) if
the beneficiary is an alien, upon his having resided in the country for
a specified number of years.... [At 365]
As State Liquor Board v. Luigi, above pointed out, the Graham Court declared that “It has
long been settled, and it is not disputed here, that the term ‘person’ in this context [the Fourteenth
Amendment] encompasses lawfully admitted resident aliens as well as citizens of the United
States....” [At 371] That definition seems to narrow the application of the Fourteenth Amendment,
at least with respect to benefits to which aliens are entitled to in the United States.
In Takahashi, cited both Graham, and Luigi, above, the Court in overturning a California statute
that barred a commercial fishing license to persons who were not eligible under federal law for
citizenship, observed that:
The respondent, Torao Takahashi, born in Japan, came to this
country and became a resident of California in 1907. Federal laws,
based on distinctions of ‘color and race,’ Hidemitsu Toyota v.
United States, 268 U.S. 402, 411, 412, 45 S.Ct. 563, 565, 566, 69
L.Ed. 1016, have permitted Japanese and certain other nonwhite
racial groups to enter and reside in the country, but have made them
ineligible for citizenship. [At 412]
The same court went on to say that:
.... Congress, in the enactment of a comprehensive legislative plan
for the nation-wide control and regulation of immigration and
naturalization, has broadly provided:
‘All persons within the jurisdiction of the United States shall have
December 2, 2010
Page 3
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to lie
punishment, pains, penalties, taxes, licences, and exactions of every
kind, and to no other. 16 State. 140, 144, 8 U.S.C. s 41, 8 U.S.C.A.
s 41.
The protection of this section has been held to extend to aliens as
well as to citizens. Consequently, the section and the Fourteenth
Amendment on which it rests in part protect ‘all persons’ against
state legislation bearing unequally upon them either because of
alienage or color. See Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847.
The Fourteenth Amendment and the law adopted under its
authority thus embody a general policy that all persons lawfully in
this country shall abide ‘in any state’ on an equality of legal
privilege with all citizens under non-discriminatory laws’. [At
419-20]
Similarly, in Yick Wo, above, Yick Wo was apparently legally in the United States, and
there was a treaty between the United States and China providing how Chinese in the U.S. should
be treated, although the Court held that the Fourteenth Amendment covered him as well.
The Arizona liquor statute required liquor license applicants to be citizens of the United
States. It was that requirement that the court struck down. In light of the language in that case, it
does not appear that the court would have struck down a requirement that applicants for a liquor
license be a legal alien. But it is not clear that is true, given, as pointed out above, statutes and
ordinances that discriminate against “aliens” must generally meet the strict scrutiny standard,
which is not an easy standard to meet.
In Kalra v. State of Minnesota, 580 F.Supp. 971 (D. Minn., 3rd Div 1983), the court also
overturned the denial of a license to sell 3.2 beer under a statute that required the applicant for such
license to be a citizen of the United States. In this case, the applicant for the license was a
“permanent resident alien.” [At 972]
The Court declared that “The classification in this case
does not primarily serve a political function and, therefore, heightened judicial scrutiny applies.”
[Citations omitted by me.] The state could not meet the strict scrutiny standard, held the court:
In order to justify the use of a suspect classification, defendants
must show that the purpose of their laws is both constitutionally
permissible and substantial, and that their use of the classification is
necessary to the accomplishment of their purpose. [citation omitted
by me] [At 973]
December 2, 2010
Page 4
But the U.S. Supreme Court in Bernal v. Fainter, 467 U.S. 217 (1984), traced the
development of the law governing restrictions on trades and licenses for aliens, in resolving the
question of whether an alien was entitled to a notary public license in Texas. Speaking of the
standard of review in such cases, it declared that:
We have therefore lowered our standard of review when evaluating
the validity of exclusions that entrust only to citizens important
elective and nonelective positions whose operations “go to the heart
of representative government.” Sugarman v. Dougall, supra, 43
U.S., at 647, 92 S.Ct., at 2850. While not recreating from the
position that restrictions on lawfully resident aliens that primarily
affect economic interests are subject to heightened scrutiny ... we
have concluded that strict scrutiny is out of place when the
restriction primarily serves a political function....” Cabell v.
Chavez-Salido, supra, 54 U.S. at 439, 102 S.Ct. At 739 (citation
omitted) [by the court.] [At 221]
Bernal, the plaintiff, observed the Court, was a native of Mexico, “is a resident alien who
has lived in the United States since 1961.” [At 217]
The above cases point to an argument that the strict scrutiny standard applies only to legal
aliens. If that is true, procedurally an illegal alien should not get very far with a suit against a city
for its refusal to grant him a beer license.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/