Foley v. Connelie

As a legal alien, Edmund Foley was a legitimate, permanent resident of United States. He was also eligible, having completed all of the other prerequisites, to become a naturalized citizen after he had resided in the United States for five years. In 1977, Foley applied to take a competitive examination necessary to gain an appointment in the New York State Police. Police authorities, however, applied a New York statute, which precluded persons who were not citizens of the United States from being tested for an appointment to the New York State Police. Foley's application was refused.

Foley appealed to the U.S. District Court for the Southern District of New York, claiming that the state's exclusion of aliens from the New York State Police violated the Equal Protection Clause of the Fourteenth Amendment. After considering the value of the claim, a three-judge assembly of the district court held that the statute was constitutional.

The case was brought to the U.S. Supreme Court. Justices for the majority opinion held that refusing acceptance of aliens into the state's police force did not violate the Fourteenth Amendment. Nonetheless, the opinion submitted by the remaining three, dissenting justices was strong and significant. In presenting their opinion, they cited a decision taken in one of the Court's prior rulings regarding public employment as state police officer. An earlier decree in Sugarman v. Dougall (1973), held that "elective and important nonelective positions" that include wide "policymaking responsibilities" were the only state jobs from which aliens could be excluded from participation. Justice Marshall concluded that state troopers participate in the "execution of public policy" by arresting persons who commit a crime or a felony in New York. But, he posited that the conduct of police officers, in principal, was no different than firefighters or sanitation workers whose work in the "execution" of the public policy entailed no more policymaking than the acts of extinguishing a fire or keeping streets clean. In such a sense, troopers participating in "execution of policy," did not constitute a performance of work that could be described as placing them in "executive, policy making positions" of the sort which was clearly excluded in the Sugarman decision. Pointing out the difference between "execution of policy" and "application of policy," Justice Marshall held that Federal and State Constitutions, statutes, and regulations provide for the application, rather than the execution of policy that dictates police conduct. Moreover, since the Court previously recognized the difference between the responsibilities of high officials, and the more limited responsibilities of police officers, Justice Marshall emphasized that the police officer is only applying pre-established rules, not making policy. The dissenting opinion went on to point out that because New York statute authorizes "a New York person" to arrest another who commits a felony or offense in New York (New York Criminal Process Law), the state, in essence, gave authority to all private persons, including aliens, to arrest another person. Thus, because New York Criminal Process Law literally permitted anyone arresting authority, Marshall had serious reservations concerning the majority opinion which claimed that a state trooper's search and arrest authority justified exclusion of aliens from the police force.

Justices Stevens and Brennan, in their dissenting opinion, fully agreed with Justice Marshall. Justice Stevens however, appended the minority opinion and further amplified Marshall's misgivings. He questioned the wisdom of allowing aliens to practice law, but not to be police officers. He cited, as precedent, the case of In re Griffiths (1973), wherein the Supreme Court held that a state could not limit the practice of law only to U.S. citizens. Stevens could not understand how the Court could conclude that an alien's legal practice was less involved with public policy making, and therefore more tolerable than an alien serving as a police officer. Neither could he see an appreciable difference between the requisite allegiance and trustworthiness needed by both a lawyer and a police officer. To address such disparity he felt, "the Court should draw the line between policy making and non-policy making positions," and that the Court should identify the group of characteristics that justify the discrimination of aliens. He concluded that the participation of aliens in the so-called making of policy might be refuted, and that the state might not forbid aliens access to employment possibilities without justified reason.

Nonetheless, while the minority opinion presented a viable argument, the Supreme Court's majority opinion prevailed, holding that excluding aliens from the New York State police force was not a constitutional violation. In a 6-3 decision, the Court agreed that because a trooper in New York was a part of the law enforcement body, troopers thus applied public policy. In citing criteria for such judgment, the Court described troopers as officers whose mandate charged them with prevention and detection of crime. They had the power of search, seizure, and arrest without a formal warrant. They could use a weapon to enforce the law. The Court held that the New York statute did not violate the Fourteenth Amendment because police officers were part of the "category of important nonelective officers, who participate directly in the execution of broad public policy." Thus, the majority opinion went on to maintain that by reason of such authority, citizenship might be a relevant factor in fulfilling particular law enforcement positions. The justices conceded that aliens had a right to education, welfare, and the ability to earn and be involved in licensed professions; however, they felt the right to administer government authority and statutes was a privilege reserved for citizens. The majority opinion further reasoned that just as aliens are not permitted to be a member of a jury, it would be also abnormal for citizens to be "subjected to the broad discretionary powers of noncitizen police officers." Neither would it be appropriate for the removal of every statutory exclusion of aliens from all constitutional privileges, because that would erase all differences between citizens and noncitizens, and "depreciate historic values of citizenship." In acknowledging such historical precedent, the justices underscored the notion that becoming a citizen made a person "part of people distinct from others." And with that distinction, a person became "entitled to participate in the process of democratic decision making," such as was involved in the work of police officers. Thus, the Court concluded that the states had a historical power to exclude aliens from participation in a state's official institutions.