Juan Carlos MORENO et al.
Held: The University of Maryland's policy of categorically denying domiciled nonimmigrant aliens who hold G-4 visas (visas issued to nonimmigrant aliens who are officers or employees of certain international organizations and to members of their immediate families) in-state status under which preferential treatment is given to domiciled citizen and immigrant alien students for purposes of tuition and fees, is invalid under the Supremacy Clause. Pp. 10-19.
(a) "[S]tate regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress." De Canas v. Bica, 424 U.S. 351, 358, n. 6, 96 S.Ct. 933, 938, n. 6, 47 L.Ed.2d 43. Here, in light of Congress' explicit decision in the Immigration and Nationality Act of 1952 not to bar G-4 aliens from acquiring domicile in the United States, the State's decision to deny "in-state" status to G-4 aliens, solely on account of such aliens' immigration status, amounts to an ancillary "burden not contemplated by Congress" in admitting these aliens to the United States. Moreover, by imposing on domiciled G-4 aliens higher tuition and fees than are imposed on other domiciliaries of the State, the University's policy frustrates the federal policies embodied in the special tax exemptions afforded G-4 aliens by various treaties, international agreements, and federal statutes. Pp. 10-17. (b) The Eleventh Amendment did not preclude the District Court from ordering the University to pay refunds to various G-4 alien class members who would have obtained in-state status but for the stay, pending appeal, of that court's original order granting partial summary judgment in favor of the named plaintiffs, where the University, in seeking the stay, represented that if the order was affirmed on appeal, it would make appropriate refunds. Contrary to petitioners' contention, the order was not vacated when this Court vacated the Court of Appeals' judgment affirming the District Court and remanded the case to the District Court for reconsideration. Pp. 17-19.
4 Cir., 645 F.2d 217, affirmed.
Robert A. Zarnoch, Annapolis, Md., for petitioners.
James R. Bieke, Washington, D. C., for respondents.
The state-operated University of Maryland grants preferential treatment for purposes of tuition and fees to students with "in-state" status. Although citizens and immigrant aliens may obtain in-state status upon a showing of domicile within the State, nonimmigrant aliens, even if domiciled, are not eligible for such status. The question in this case is whether the University's in-state policy is invalid under the Supremacy Clause of the Constitution, insofar as the policy categorically denies in-state status to domiciled nonimmigrant aliens who hold G-4 visas.
grant in-state status for admission, tuition and charge-differential purposes to United States citizens, and to immigrant aliens lawfully admitted for permanent residence in accordance with the laws of the United States, in the following cases: "a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester.
"b. Where a student is financially independent for at least the preceding twelve months, and provided the student has maintained his domicile in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester." App. to Pet. for Cert. 167a-168a.
In 1975, when this action was filed, respondents Juan Carlos Moreno, Juan Pablo Otero, and Clare B. Hogg were students at the University of Maryland. Each resided with, and was financially dependent on, a parent who was a nonimmigrant alien holding a "G-4" visa. Such visas are issued to nonimmigrant aliens who are officers or employees of certain international organizations, and to members of their immediate families. 66 Stat. 168, 8 U.S.C. § 1101(a)(15)(G)(iv).1 Despite respondents' residence in the State, the University denied them in-state status pursuant to its policy of excluding all nonimmigrant aliens. Seeking declaratory and injunctive relief, the three respondents filed a class action against the University of Maryland and its President.2 They contended that the University's policy violated various federal laws, the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and the Supremacy Clause.
The District Court granted partial summary judgment in favor of the three named plaintiffs and the class of G-4 visa holders represented by them.3 In the view of the District Court, the University's denial of in-state status to these plaintiffs rested upon an irrebuttable presumption that a G-4 alien cannot establish Maryland domicile. Concluding that the presumption was "not universally true" as a matter of either federal or Maryland law, the District Court held that under Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), the in-state policy violated the Due Process Clause of the Fourteenth Amendment. Moreno v. University of Maryland, 420 F.Supp. 541, 559 (Md.1976). Accordingly, in an order dated July 13, 1976, the District Court enjoined the President of the University4 from denying respondents the opportunity to establish in-state status solely on the basis of an "irrebuttable presumption of non-domicile." Id., at 565.5 The court stayed its order pending appeal in reliance on the University's representation that it would make appropriate refunds "in the event the Court's Order of July 13, 1976, were finally affirmed on appeal." App. to Pet. for Cert. 100a. The Court of Appeals for the Fourth Circuit affirmed, adopting the reasoning of the District Court. Id., at 102a.6 Affirmance order reported at 556 F.2d 573 (1977).
We reviewed the case on writ of certiorari. Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978). We held that "[b]ecause petitioner makes domicile the 'paramount' policy consideration and because respondents' contention is that they can be domiciled in Maryland but are conclusively presumed to be unable to do so, this case is squarely within Vlandis as limited by [Weinberger v.] Salfi, [422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) ]." Id., at 660, 98 S.Ct., at 1346.7 It was therefore necessary to decide whether the presumption was universally true. With respect to federal law, we concluded that G-4 visa holders could "adopt the United States as their domicile." Id., at 666, 98 S.Ct., at 1349.8 We were thus left with the "potentially dispositive" question whether G-4 aliens are as a matter of state law incapable of becoming domiciliaries of Maryland. We certified this question to the Maryland Court of Appeals.9 The state court answered the certified question in the negative, advising us that "nothing in the general Maryland law of domicile renders G-4 visa holders, or their dependents, incapable of becoming domiciled in this State." Toll v. Moreno, 284 Md. 425, 444, 397 A.2d 1009, 1019 (1979).
"(c) efficiently administering the University's in-state determination and appeals process; and "(d) preventing disparate treatment among categories of nonimmigrants with respect to admissions, tuition, and charge-differentials." Id., at 173a-174a.
Following the Maryland Court of Appeals' decision, the case returned to this Court. But we declined to restore the case to the active docket for full briefing and argument, concluding that the University's clarifying resolution had "fundamentally altered the posture of the case." Toll v. Moreno, 441 U.S. 458, 461, 99 S.Ct. 2044, 2045, 60 L.Ed.2d 354 (1979) (per curiam ). We noted that "if domicile [was] not the 'paramount' policy consideration of the University, this case [was] no longer 'squarely within Vlandis as limited by Salfi,' " and thus raised "new issues of constitutional law which should be addressed in the first instance by the District Court." Id., at 461-462, 99 S.Ct., at 2045-2046, quoting Elkins v. Moreno, supra, at 660, 98 S.Ct., at 1346.12 Accordingly, we vacated the judgment of the Court of Appeals and remanded the case "to the District Court for further consideration in light of our opinion and judgment in Elkins, the opinion and judgment of the Maryland Court of Appeals in Toll, and the Board of Regents' clarifying resolution of June 23, 1978." 441 U.S., at 462, 99 S.Ct., at 2046.
The Court of Appeals affirmed for "reasons sufficiently stated" by the District Court. Moreno v. University of Maryland, 645 F.2d 217, 220 (1981) (per curiam ). We granted certiorari. 454 U.S. 815, 102 S.Ct. 91, 70 L.Ed.2d 83 (1981). For the reasons that follow, we hold that the University of Maryland's in-state policy, as applied to G-4 aliens and their dependents, violates the Supremacy Clause of the Constitution,14 and on that ground affirm the judgment of the Court of Appeals. We therefore have no occasion to consider whether the policy violates the Due Process or Equal Protection Clauses.
Our cases have long recognized the preeminent role of the Federal Government with respect to the regulation of aliens within our borders. See, e.g., Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Graham v. Richardson, 403 U.S. 365, 377-380, 91 S.Ct. 1848, 1854-1856, 29 L.Ed.2d 534 (1971); Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 418-420, 68 S.Ct. 1138, 1142-1143, 92 L.Ed. 1478 (1948); Hines v. Davidowitz, 312 U.S. 52, 62-68 (1941); Truax v. Raich, 239 U.S. 33, 42, 36 S.Ct. 7, 11, 60 L.Ed. 131 (1915). Federal authority to regulate the status of aliens derives from various sources, including the Federal Government's power "[t]o establish [a] uniform Rule of Naturalization," U.S.Const., Art. I, § 8, cl. 4, its power "[t]o regulate Commerce with foreign Nations", id., cl. 3, and its broad authority over foreign affairs, see United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255 (1936); Mathews v. Diaz, supra, at 81, n. 17, 96 S.Ct., at 1892, n. 17; Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 518-519, 96 L.Ed. 586 (1952).
The decision in Graham v. Richardson, supra, followed directly from Takahashi. In Graham we held that a State may not withhold welfare benefits from resident aliens "merely because of their alienage." 403 U.S., at 378, 91 S.Ct., at 1855. Such discrimination, the Court concluded, would not only violate the Equal Protection Clause, but would also encroach upon federal authority over lawfully admitted aliens. In support of the latter conclusion, the Court noted that Congress had "not seen fit to impose any burden or restriction on aliens who become indigent after their entry into the United States," id., at 377, 91 S.Ct., at 1855, but rather had chosen to afford "lawfully admitted resident aliens . . . the full and equal benefit of all state laws for the security of persons and property," id., at 378, 91 S.Ct., at 1855. The States had thus imposed an "auxiliary burde[n] upon the entrance or residence of aliens" that was never contemplated by Congress. Id., at 379, 91 S.Ct., at 1855.
Read together, Takahashi and Graham stand for the broad principle17 that "state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress." De Canas v. Bica, 424 U.S. 351, 358, n. 6, 96 S.Ct. 933, 938, n. 6, 47 L.Ed.2d 43 (1976).18 To be sure, when Congress has done nothing more than permit a class of aliens to enter the country temporarily, the proper application of the principle is likely to be a matter of some dispute. But the instant case does not present such a situation, and there can be little doubt regarding the invalidity of the challenged portion of the University's in-state policy.
The Immigration and Nationality Act of 1952, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. (1976 ed. and Supp.IV), represents "a comprehensive and complete code covering all aspects of admission of aliens to this country, whether for business or pleasure, or as immigrants seeking to become permanent residents." Elkins v. Moreno, 435 U.S., at 664, 98 S.Ct., at 1348. The Act recognizes two basic classes of aliens, immigrant and nonimmigrant.19 With respect to the nonimmigrant class, the Act establishes various categories, the G-4 category among them. For many of these nonimmigrant categories, Congress has precluded the covered alien from establishing domicile in the United States. Id., at 665, 98 S.Ct., at 1349.20 But significantly, Congress has allowed G-4 aliens—employees of various international organizations, and their immediate families to enter the country on terms permitting the establishment of domicile in the United States. Id., at 666, 98 S.Ct., at 1349. In light of Congress' explicit decision not to bar G-4 aliens from acquiring domicile, the State's decision to deny "in-state" status to G-4 aliens, solely on account of the G-4 alien's federal immigration status, surely amounts to an ancillary "burden not contemplated by Congress" in admitting these aliens to the United States. We need not rely, however, simply on Congress' decision to permit the G-4 alien to establish domicile in this country; the Federal Government has also taken the additional affirmative step of conferring special tax privileges on G-4 aliens.
As a result of an array of treaties, international agreements, and federal statutes, G-4 visaholders employed by the international organizations described in 8 U.S.C. § 1101(a)(15)(G)(iv) are relieved of federal and, in many instances, state and local taxes on the salaries paid by the organizations. For example, the international agreements governing the international banks for which the parents of the named respondents are employed specifically exempt the parents from all taxes on their organizational salaries. See Articles of Agreement of the International Bank for Reconstruction and Development, Art. VII, § 9(b), 60 Stat. 1458, T.I.A.S. No. 1502 (1945) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to executive directors, alternates, officials or employees of the Bank who are not local citizens, local subjects, or other local nationals"); Agreement Establishing the Inter-American Development Bank, Art. XI, § 9(b),  10 U.S.T. 3029, 3096, T.I.A.S. No. 4397 (1959) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Bank to . . . employees of the Bank who are not local citizens or other local nationals").21 Not only have some of the specific tax exemptions contained in international agreements been incorporated into a federal statute, see 22 U.S.C. § 286h, but also the International Organizations Immunities Act has explicitly afforded a federal tax exemption for those G-4 visaholders employed by international organizations for which no treaty or international agreement has provided a tax exemption for foreign employees.22 § 4(b), 59 Stat. 670, reenacted, 68A Stat. 284, as § 893 of the Internal Revenue Code of 1954, 26 U.S.C. § 893 ("Wages, fees, or salary of any employee [except citizens of the United States and of the Republic of the Philippines] of . . . an international organization . . ., received as compensation for official services to such . . . international organization shall not be included in gross income and shall be exempt from [federal] taxation").
Finally, we must address petitioners' contention that the Eleventh Amendment precluded the District Court from ordering the University to pay refunds to various class members who would have obtained in-state status but for the stay of the District Court's original order of July 13, 1976. As petitioners concede, in seeking a stay of that order the University made the representation to the District Court that in the event the 1976 order was "finally affirmed on appeal," it would make appropriate refunds. This representation was incorporated in the stay orders of both the District Court and Court of Appeals. It is petitioners' contention, however, that the 1976 order was "effectively" vacated when this Court, in Toll v. Moreno, 441 U.S. 458, 99 S.Ct. 2044, 60 L.Ed.2d 354 (1979), vacated the judgment of the Court of Appeals and remanded the case to the District Court for reconsideration. Petitioners therefore conclude that the terms of the University's waiver of sovereign immunity can no longer be satisfied.
I join the Court's opinion. Its action today provides an eloquent and sufficient answer to Justice REHNQUIST's dissent: despite the vehemence with which his opinion is written, Justice REHNQUIST has persuaded only one Justice to his position. But because the dissent attempts to plumb the Court's psyche, see post, at 41-42, n. 12,1 I feel compelled to add comments addressed to Justice REHNQUIST's ruminations on equal protection. In particular, I cannot leave unchallenged his suggestion that the Court's decisions holding resident aliens to be a "suspect class" no longer are good law.
Justice REHNQUIST's analysis on this point is based on a simple syllogism. Alienage classifications have been subjected to strict scrutiny, he suggests, because "aliens [are] barred from asserting their interests in the governmental body responsible for imposing burdens upon them." Post, at 40. But "[m]ore recent decisions," he continues, have established that "the political powerlessness of aliens is itself the consequence of distinctions on the basis of alienage that are constitutionally permissible." Ibid. This prompts Justice REHNQUIST to pose what one supposes to be a rhetorical question: "whether political powerlessness is any longer a legitimate reason for treating aliens as a 'suspect class' deserving of 'heightened judicial solicitude.' " Post, at 41. The reader would infer from this analysis that Justice REHNQUIST would uphold state enactments disadvantaging aliens unless those enactments are wholly irrational.
With respect, in my view it is Justice REHNQUIST's analysis that is wholly irrational; simply to state his proposition is to demonstrate its logical flaws. Most obviously, his exegesis of the Court's reasons for according aliens "suspect class" status is simplistic to the point of caricature. By labeling aliens a " 'discrete and insular' minority," Graham v. Richardson, 403 U.S. 365, 372, 91 S.Ct. 1848, 1852, 29 L.Ed.2d 534 (1971), the Court did something more than provide an historical description of their political standing. That label also reflected the Court's considered conclusion that for most legislative purposes there simply are no meaningful differences between resident aliens and citizens, see Ambach v. Norwick, 441 U.S. 68, 75, 99 S.Ct. 1589, 1593, 60 L.Ed.2d 49 (1979), so that aliens and citizens are "persons similarly circumstanced" who must "be treated alike." F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920). At the same time, both common experience and the unhappy history reflected in our cases, see Cabell v. Chavez-Salido, 454 U.S. 432, 462-463, 102 S.Ct. 735, 747-748, 70 L.Ed.2d 677 (1982) (dissenting opinion); Ambach v. Norwick, 441 U.S., at 82, 99 S.Ct., at 1597 (dissenting opinion), demonstrate that aliens often have been the victims of irrational discrimination.
In combination, these factors—disparate treatment accorded a class of "similarly circumstanced" persons who historically have been disabled by the prejudice of the majority the Court to conclude that alienage classifications "in themselves supply a reason to infer antipathy," Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272, 99 S.Ct. 2282, 2292, 60 L.Ed.2d 870 (1979), and therefore demand close judicial scrutiny. This understanding, which is at the heart of the Court's modern alienage decisions, was unreservedly reaffirmed this Term in Cabell v. Chavez-Salido, 454 U.S., at 438, 102 S.Ct., at 739 ("citizenship is not a relevant ground for the distribution of economic benefits").
Justice REHNQUIST nevertheless suggests that the Court's original understanding somehow has been undercut by "more recent decisions" recognizing that aliens may be excluded from the governmental process. For this proposition he cites Cabell v. Chavez-Salido, supra; Ambach v. Norwick, supra ; and Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978). Again, with all due respect, Justice REHNQUIST is simply wrong. The idea that aliens may be denied political rights is not a recently discovered concept or a newly molded principle that can be said to have eroded the prior understanding. To the contrary, the Court always has recognized that aliens may be denied use of the mechanisms of self-government, and all of the alienage cases have been decided against the backdrop of that principle. Indeed, this aspect of the alienage-equal protection doctrine was explored at length in Sugarman v. Dougall, 413 U.S. 634, 647-649, 93 S.Ct. 2842, 2850-2851, 37 L.Ed.2d 853 (1973), the second of the Court's modern decisions in the area.2 See Cabell v. Chavez-Salido, 454 U.S., at 438-442, 102 S.Ct., at 739-741 (citing Sugarman ); Ambach v. Norwick, 441 U.S., at 74, 99 S.Ct., at 1593 (citing Sugarman ); Foley v. Connelie, 435 U.S., at 294-296, 98 S.Ct., at 1069-1070 (citing Sugarman). Yet in cases contemporary with or postdating Sugarman the Court has experienced no noticeable discomfort in applying strict scrutiny to alienage classifications that did not involve political interests. See In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977).
Finally, even were I to accept Justice REHNQUIST's view that powerlessness is the end-all of alienage-equal protection doctrine, I would find preposterous his further suggestion that, because States do not violate the Constitution when they exclude aliens from participation in the government of the community, the alien's powerlessness therefore is constitutionally irrelevant. From the moment the Court began constructing modern equal protection doctrine in United States v. Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), it never has been suggested that the reason for a discrete class' political powerlessness is significant; instead, the fact of powerlessness is crucial, for in combination with prejudice it is the minority group's inability to assert its political interests that "curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities." Id., at 152-153, n. 4, 58 S.Ct., at 783-784, n. 4. The very powerlessness of a discrete minority, then, is itself the factor that overcomes the usual presumption that " 'even improvident decisions [affecting minorities] will eventually be rectified by the democratic process.' " Personnel Administrator of Massachusetts v. Feeney, 442 U.S., at 272, 99 S.Ct., at 2292, quoting Vance v. Bradley, 440 U.S. 93, 97, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (1979). If anything, the fact that aliens constitutionally may be—and generally are—formally and completely barred from participating in the process of self-government makes particularly profound the need for searching judicial review of classifications grounded on alienage. I might add that the Court explicitly has endorsed this seemingly self-evident proposition: in Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), after noting that "[s]ome of [an alien's] disadvantages stem directly from the Constitution itself," the Court declared that "[t]he legitimacy of the delineation of the affected class [of aliens] buttresses the conclusion that it is 'a "discrete and insular" minority' . . . and, of course, is consistent with the premise that the class is one whose members suffer special disabilities." Id., at 102, n. 22, 96 S.Ct., at 1905, n. 22. I find Justice REHNQUIST's attempt to stand this principle on its head perplexing, to say the least.
One of the few assertions that can be made with complete confidence about the Court's alienage-equal protection decisions is that no opinion for the Court has ever so much as suggested that Justice REHNQUIST's lone dissent in Sugarman, 413 U.S., at 649, 93 S.Ct., at 2851—which espoused a view similar to the one he hints at today—expressed the proper approach for deciding these cases. Of course, one cannot condemn another for sticking to his guns. Barring a radical change in the Court's reasoning in cases concerning alienage, however, one can expect that today's equal protection writing by Justice REHNQUIST will join his opinion in Sugarman, to use his phrase, as "lifeless words on the pages of these Reports." Post, at 48.
I concur in the Court's opinion insofar as it holds that the State may not charge out-of-state tuition to nonimmigrant aliens who, under federal law, are exempt from both state and federal taxes, and who are domiciled in the State. Imposition of out-of-state tuition on such aliens conflicts with federal law exempting them from state taxes, since, after all, the University admits that it seeks to charge the higher tuition in order to recover costs that state income taxes normally would cover.
I cannot join the remainder of the Court's opinion, however, for it wholly fails to address the criticisms leveled in Justice REHNQUIST's dissenting opinion. As Justice REHNQUIST makes clear, the class of G-4 aliens is not homogenous: some G-4 aliens are exempt under federal law from state taxes, while other G-4 aliens are not. Moreover, the legislative history of § 4(b) of the International Organizations Immunities Act, later reenacted as § 893 of the Internal Revenue Code of 1954, 26 U.S.C. § 893, from which many G-4 aliens derive their federal tax immunity, demonstrates that Congress did not intend to exempt such aliens from state taxes, choosing instead to leave the matter to the state and local authorities. Thus, I disagree with the Court when it states that the "State may not recoup indirectly from respondents' parents the taxes that the Federal Government has expressly barred the State from collecting," ante, at 16, for in fact Congress has not barred the State from collecting state taxes from many G-4 aliens. Accordingly, I conclude that the Supremacy Clause does not prohibit the University from charging out-of-state tuition to those G-4 aliens who are exempted by federal law from federal taxes only.
Despite rather broad dicta regarding the conditions under which federal power over immigration will pre-empt state statutes that adversely affect aliens, the Court's holding is narrow. Purporting to rely on a collection of treaties and statutes that concern the tax liability of certain nonimmigrant aliens, it concludes that no room is left for the State of Maryland to charge such aliens nonresident tuition for attending the State's university. The Court's dicta seems to me inconsistent with our prior cases, and its conclusion about the effect of the statutes and treaties is strained at best. In short, the Court reaches a result that I find quite out of step with our normal approach to federal pre-emption of state law.
Its holding has the additional vice of foreclosing governmental autonomy in an area plainly within the State's traditional responsibilities—education. And it acts, not on behalf of a disadvantaged minority, but at the behest of a group of individuals who have been accorded a status by the Federal Government superior to that of the average citizen, and in a case where the State has demonstrated, by virtue of its favorable treatment of resident aliens, that its policy is not the result of an invidious or irrational motive. I find the Court's actions unjustified and unnecessary and, accordingly, I dissent. Because I would reverse the judgment of the Court of Appeals, I also address other grounds relied on by the lower courts and argued by respondents in support of their judgments.
* Our prior decisions indicate that "when a State's exercise of its police power is challenged under the Supremacy Clause, 'we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.' Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 [67 S.Ct. 1146, 1153, 91 L.Ed. 1447] (1947)." Ray v. Atlantic Richfield Co., 435 U.S. 151, 157, 98 S.Ct. 988, 994, 55 L.Ed.2d 179 (1978). State laws will survive such a challenge unless there is "such actual conflict between the two schemes of regulation that both cannot stand in the same area, [or] evidence of a congressional design to preempt the field." Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 141, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963).
"[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by [the Federal Government's] constitutional power, whether latent or exercised. For example, Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 415-422 [68 S.Ct. 1138, 1140-1144, 92 L.Ed. 1478] (1948), and Graham v. Richardson, 403 U.S. 365, 372-373 [91 S.Ct. 1848, 1852, 29 L.Ed.2d 534] (1971), cited a line of cases that upheld certain discriminatory state treatment of aliens lawfully within the United States. Although the 'doctrinal foundations' of the cited cases, which generally arose under the Equal Protection Clause 'were undermined in Takahashi,' they remain authority that, standing alone, the fact that aliens are the subject of a state statute does not render it a regulation of immigration, which is essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." Id., at 355, 96 S.Ct., at 936 (citations omitted; emphasis added).
In De Canas the Court also held that Congress' enactment of the Immigration and Nationality Act (INA) was insufficient to oust "harmonious state regulation touching on aliens in general." Id., at 358, 96 S.Ct., at 938.
Thus, neither Congress' unexercised constitutional power over immigration and naturalization, nor its exercise of that power in passing the INA, precludes the States from enforcing laws and regulations that prove burdensome to aliens. Under our precedents, therefore, state law is invalid only if there is "such actual conflict between the two schemes of regulation that both cannot stand in the same area," Florida Lime & Avocado Growers, Inc. v. Paul, supra, at 141, 83 S.Ct., at 1217,1 or if Congress has in some other way unambiguously declared its intention to foreclose the state law in question, see Ray v. Atlantic Richfield Co., supra, at 157-158, 98 S.Ct., at 994. In the absence of a conflict, "we are not to conclude that Congress legislated the ouster of [a state law] in the absence of an unambiguous congressional mandate to that effect." Florida Lime & Avocado Growers, supra, 373 U.S., at 146-147, 83 S.Ct., at 1219.
Notwithstanding these settled principles, the Court suggests in dicta that any state law which discriminates against lawfully admitted aliens is void, presumably without regard to the strength of the State's justification, if Congress did not contemplate such a law. Ante, at 12-13. This standard seems to me clearly to reverse the presumption that normally prevails when state laws are challenged under the Supremacy Clause. The Court relies on language in three cases to support this proposition. On closer inspection, none of the three offers the precedential support for which the Court obviously grasps.
The first case, Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948), involved a California statute that prohibited the issuance of commercial fishing licenses to aliens who were ineligible for citizenship. The language emphasized by the Court explains that "[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly been held invalid." Id., at 419, 68 S.Ct., at 1142 (footnote omitted). In the Takahashi opinion, this statement is immediately followed by three citations, which the Court omits. These citations explain, and qualify, the otherwise broad language quoted by the Court. In the first of these cases, Chy Lung v. Freeman, 92 U.S. 275, 23 L.Ed. 550 (1876), the Court considered a California law that, with certain extremely limited exceptions, prohibited any alien who was, or would likely become, "a public charge," from entering the State through any of its ports. The Court held that the statute was pre-empted by federal law: "The passage of laws which concern the admission of citizens and subjects of foreign nations to our shores belongs to Congress, and not to the States." Id., at 280 (emphasis added).
The second case cited in Takahashi, Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), concerned an Arizona statute limiting virtually all employment opportunities in the State to citizens. Although Truax involved an asserted repugnancy to the Equal Protection Clause, the Court also suggested that the challenged statute was in conflict with federal law. It is important to note that the Court interpreted the statute as "deny[ing] to lawful inhabitants, because of their race or nationality, the ordinary means of earning a livelihood." Id., at 41, 36 S.Ct., at 10. The Court subsequently stated: "The assertion of an authority to deny to aliens the opportunity of earning a livelihood when lawfully admitted to the State would be tantamount to the assertion of the right to deny them entrance and abode, for in ordinary cases they cannot live where they cannot work." Id., at 42, 36 S.Ct., at 11 (emphasis added).
The final case relied on in Takahashi is Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The Pennsylvania statute at issue there required adult aliens to register with the State and to carry an identification card, which they were required to present on demand to state agents. The Court held that the statute was pre-empted by the federal Alien Registration Act of 1940, finding that "[t]he basic subject of the state and federal laws [was] identical," id., at 61, 61 S.Ct., at 401, and that the state law embodied requirements that Congress had studiously avoided in passing the federal Act, id., at 70-74, 61 S.Ct., at 405-407.
Thus, in each of these cases, the Court found either a clear encroachment on exclusive federal power to admit aliens into the country or a clear conflict with a specific congressional purpose. It was with these cases in mind that the Court in Takahashi condemned "[s]tate laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States." 334 U.S., at 419, 68 S.Ct., at 1142. It is most unlikely, therefore, that the Court intended with one stroke of the pen to reverse the normal presumption applicable in cases challenging state enactments under the Supremacy Clause, and to declare such laws invalid without regard to the existence of a conflict with federal statutes or a usurpation of federal power over immigration.
The Court also relies on Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), which struck down as a denial of equal protection a California law that withheld welfare benefits from lawfully resident aliens. As an alternative ground, the Court also declared the law invalid as an encroachment on federal power. On the basis of specific federal statutes barring the admission of aliens likely to become public charges, and providing for the deportation of aliens who become public charges because of factors that existed prior to entry, the Court inferred a congressional purpose not "to impose any burden or restriction on aliens who become indigent after their entry into the United States." Id., at 377, 91 S.Ct., at 1855. The Court also concluded, relying on Truax, supra, that the law denied indigent aliens the "necessities of life," and therefore "equate[d] with the assertion of a right, inconsistent with federal policy, to deny entrance and abode." The holding in Graham, therefore, offers no support for a presumption that all state laws burdening aliens conflict with amorphous federal power over immigration.
Finally, the Court quotes from dictum appearing in a footnote in De Canas v. Bica, 424 U.S., at 358, n. 6, 96 S.Ct., at 938, n. 6, that " 'state regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress.' " Ante, at 12-13. The principal support for this assertion was the passage previously quoted by the Court from Takahashi. As I have already indicated, that passage in context means a good deal less than it does out of context. Most important, however, De Canas itself suggests that the quoted footnote is not a fair description of the law. Although the statute at issue only affected illegal aliens, the principles recognized in the Court's opinion were not so limited. Thus, the Court emphasized that "the fact that aliens are the subject of a state statute does not render it a regulation of immigration," 424 U.S., at 355, 96 S.Ct., at 936, that Takahashi, Graham, and Hines found preemption only after examining specific congressional enactments, 424 U.S., at 355, 96 S.Ct., at 936, that it was necessary to look for some "specific indication . . . that Congress intended to preclude even harmonious state regulation touching on aliens in general," id., at 358, 96 S.Ct., at 937, and that pre-emption should be found only when it is possible to say " 'either that the nature of the regulated subject matter permits no other conclusion or that the Congress has unmistakably so ordained,' " id., at 356, 96 S.Ct., at 937 (quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S., at 142, 83 S.Ct., at 1217).
In sum, the fact that a state statute can be said to discriminate against aliens does not, standing alone, demonstrate that the statute is pre-empted, absent some form of congressional sanction. The statute in De Canas discriminated against aliens, yet the Court found no strong evidence that Congress intended to pre-empt it. Obviously, the fact that the aliens were in this country illegally was an important factor in ascertaining Congress' intent. But, just as clearly, the fact that disadvantaged aliens are lawfully in the country does not authorize the Court to dispense with the particularized inquiry into congressional intent that pre-emption analysis traditionally has demanded.2 Discriminatory legislation may well be invalid under the federal civil rights laws as a denial of equal treatment, but under our precedents such a conclusion is possible only after an examination of the classification drawn by the State and its justification for doing so. Under the Court's summary of pre-emption principles applicable to laws discriminating against aliens, these factors would be irrelevant.3 I cannot agree that such a summary accurately reflects the law.
The Court concedes that the proper application of its preemption principle "is likely to be a matter of some dispute," ante, at 13, and then proceeds to resolve the case by finding a conflict between Maryland's tuition policy and a collection of treaties and statutes that address the tax liability of certain nonimmigrant aliens. Although I find this conclusion quite unconvincing, it is gratifying to learn that in practice perhaps the Court's new principle still demands proof of a conflict with federal law, just as traditional pre-emption cases instruct. Because the Court's judgment relies on the asserted presence of such a conflict, its statements suggesting that such a particularized inquiry is unnecessary must be regarded as dicta, though unwise dicta at that. With this said, I turn to the Court's discovery of a conflict with federal law.
The Court relies on two features of federal law. First, it notes that Congress has permitted nonimmigrant aliens holding G-4 visas to establish domicile in the United States. Ante, at 14. It then reasons that denying these aliens in-state tuition conflicts with Congress' decision. The Court offers no evidence that Congress' intent in permitting respondents to establish "domicile in the United States" has any bearing at all on the tuition available to them at state universities. Federal law does not require the States to make residence or domicile the determinant of their tuition policies, and as the Court recognizes, Maryland has chosen not to do so in the case of nonimmigrant aliens. Moreover, unlike the state laws scrutinized in Truax and Graham, Maryland's policy does not deprive respondents of a livelihood or the means of subsistence such that it could fairly be characterized as denying respondents "entrance and abode," 239 U.S., at 42, 36 S.Ct., at 11. The Court's reference to "domicile in the United States," therefore, is little more than a restatement of its more general principle that any laws burdensome to aliens who have been lawfully admitted are presumptively pre-empted absent congressional intent to "sanction" them. As I have already suggested, this turns pre-emption analysis on its head.
The second feature of federal law on which the Court relies consists of certain statutes and treaties that affect the tax liability of G-4 visaholders. The Court considers these statutes and treaties as an amorphous whole and concludes that the University's policy "frustrates" the policies embodied in them. "The State may not recoup indirectly from respondents' parents the taxes that the Federal Government has expressly barred the State from collecting." Ante, at 16. There are two serious flaws in this argument. First, the Federal Government has not barred the States from collecting taxes from many, if not most, G-4 visaholders. Second, as to those G-4 nonimmigrants who are immune from state income taxes by treaty, Maryland's tuition policy cannot fairly be said to conflict with those treaties in a manner requiring its pre-emption.
The individual respondents in this case represent a class of G-4 visaholders or their dependents who are or may become students at the University of Maryland. The Court, contrary to the teaching of our cases,4 reasons as though the class members were a homogenous group. They are not, and the Court's ignorance of relevant differences leads it into error. The named class representatives are dependents of employees of either the Inter-American Development Bank or the International Bank for Reconstruction and Development (the World Bank). As the Court notes, the salaries paid employees of these organizations are exempt by international agreement from taxation by any country other than their own. Ante, at 15. As the Court also notes, the exemption contained in the agreement establishing the World Bank has by statute been given the force of federal law in the United States. 22 U.S.C. § 286h; see ante, at 15-16.
Most G-4 visaholders, however, derive whatever tax immunity they enjoy in this country from § 4(b) of the International Organizations Immunities Act (IOIA or Act), later reenacted as § 893 of the Internal Revenue Code of 1954, 26 U.S.C. § 893. That statute exempts the salaries paid to alien employees of international organizations from federal income tax. The principal purpose of the Act as a whole, which is now divided among many Titles of the United States Code, was to extend governmental privileges and immunities to international organizations and their officers and employees located in this country. H.R.Rep. No. 1203, 79th Cong., 1st Sess., 4 (1945), U.S.Code Cong.Serv. 1945, p. 946. As noted, § 4 amended the Internal Revenue Code to exempt the salaries of such officers and employees from federal income tax. As the relevant Committee Reports demonstrate, the exemption was strictly limited to salaries; income derived from commercial activities, investments, and other similar sources was not to enjoy an exemption, and all federal taxes other than those applicable to income remained fully effective. Ibid.; S.Rep. No. 861, 79th Cong., 1st Sess., 4-5 (1945).
"A conflict will be found 'where compliance with both federal and state regulations is a physical impossibility . . .,' Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 [83 S.Ct. 1210, 1217, 10 L.Ed.2d 248] (1963), or where the state 'law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67 [61 S.Ct. 399, 404, 85 L.Ed. 581] (1941); Jones v. Rath Packing Co. [430 U.S.], at 526, 540-541. Accord, De Canas v. Bica, 424 U.S. 351, 363 [96 S.Ct. 933, 940, 47 L.Ed.2d 43] (1976)."
There is, of course, no physical impossibility in the coexistence of the two policies. The treaties and agreements insure that signatory nations will not tax the salaries of foreign nationals employed by the designated organizations. The State of Maryland does not tax these salaries. It merely charges tuition for enrollment in its University that is higher than the tuition charged to American citizens and other foreign nationals who have been admitted to this country as immigrants.
The remaining question is whether Maryland's tuition policy "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the treaties and agreements. Hines v. Davidowitz, 312 U.S., at 67, 61 S.Ct., at 404. In answering this question, it is well to bear in mind certain guideposts that the Court appears to have forgotten: "It is, of course, true that even treaties with foreign nations will be carefully construed so as not to derogate from the authority and jurisdiction of the States of this nation unless clearly necessary to effectuate the national policy." United States v. Pink, 315 U.S. 203, 230, 62 S.Ct. 552, 565, 86 L.Ed. 796 (1942). "Even the language of a treaty wherever reasonably possible will be construed so as not to override state laws or to impair rights arising under them." Guaranty Trust Co. v. United States, 304 U.S. 126, 143, 58 S.Ct. 785, 794, 82 L.Ed. 1224 (1938). In this case, the Court has gone out of its way to raise the banner of federal supremacy over the State's University, without support in the language of the treaties and without examining the intent of the negotiating parties.
Indeed, the United States, which unlike the State of Maryland negotiated the agreements in question, clearly does not understand them to require that education for G-4 visaholders be subsidized to the same extent as education for citizens or resident aliens. For example, the Federal Guaranteed Student Loan Program, which provides significant aid to students attending qualifying colleges and graduate schools, is available to American citizens and permanent resident aliens, but not to nonimmigrant aliens such as respondents. See 34 CFR § 682.201(a)(2) (1981). If this reflects the federal policy embodied in the treaties on which the Court relies, I fail to see how Maryland's tuition policy "frustrates" it.
The lower courts' principal basis for invalidating Maryland's tuition policy was not the Supremacy Clause, but the Equal Protection Clause. Those courts interpreted the State's policy as a classification based on alienage, and therefore subjected it to "strict scrutiny" on the authority of Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), and later cases. In light of several recent decisions, however, it is clear that not every alienage classification is subject to strict scrutiny. In my view, the classification relied upon by the State in this case cannot fairly be called "suspect," and therefore I would ask only whether it rests upon a rational basis. Because I believe it does, I cannot agree with the lower courts that it denies the equal protection of the laws.
The Equal Protection Clause of the Fourteenth Amendment has been interpreted by this Court as embodying the principle that "all persons similarly circumstanced shall be treated alike." F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920). By the same token, however, "[t]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940).
All laws classify, and, unremarkably, the characteristics that distinguish the classes so created have been judged relevant by the legislators responsible for the enactment. The Equal Protection Clause, however, reflects the judgment of its Framers that some distinguishing characteristics may seldom, if ever, be the basis for difference in treatment by the legislature. The key question in all equal protection cases, of course, is whether the distinguishing characteristics on which the State relies are constitutional.
In the vast majority of cases our judicial function permits us to ask only whether the judgment of relevance made by the State is rational. See McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961).11 In a very few other cases, we have required that the State pass a more demanding test because of the judgment that the classification drawn by the State is virtually never permissible from a constitutional perspective. Such classifications are deemed "suspect" and strictly scrutinized. Until 1971, only race and national origin had been so classified by the Court. See Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); Oyama v. California, 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (1948).
In Graham v. Richardson, supra, the Court added alienage to this select list. Apart from the abbreviated conclusion that "[a]liens as a class are a prime example of a 'discrete and insular' minority," id., at 372, 91 S.Ct., at 1852, the Court did not elaborate on the justification for "heightened judicial solicitude," ibid. Subsequently, the Court observed that aliens, unlike other members of the community, were subject to the particular disadvantage of being unable to vote, and thus were barred from participating formally in the process of self-government. Hampton v. Mow Sun Wong, 426 U.S. 88, 102, 96 S.Ct. 1895, 1905, 48 L.Ed.2d 495 (1976). One could infer that rigorous judicial scrutiny normally was necessary because aliens were barred from asserting their interests in the governmental body responsible for imposing burdens upon them.
More recent decisions have established, however, that the political powerlessness of aliens is itself the consequence of distinctions on the basis of alienage that are constitutionally permissible.
"[I]t 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. See [Sugarman v. Dougall, 413 U.S. 634, 647-649, 93 S.Ct. 2842, 2850-2851, 37 L.Ed.2d 853 (1973) ]. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F.Supp. 134 (Md.1974), aff'd, 426 U.S. 913 [96 S.Ct. 2616, 49 L.Ed.2d 368] (1976). 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.' Dougall, supra, at 647 [93 S.Ct., at 2850]." Foley v. Connelie, 435 U.S. 291, 296, 98 S.Ct. 1067, 1070, 55 L.Ed.2d 287 (1978).
"The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community's process of political self-definition. Self-government, whether direct or through representatives, begins by defining the scope of the community of the governed and thus of the governors as well: Aliens are by definition those outside of this community. Judicial incursions into this area may interfere with those aspects of democratic self-government that are most essential to it." Cabell v. Chavez-Salido, 454 U.S. 432, 439-440, 102 S.Ct. 735, 740, 70 L.Ed.2d 677 (1982).
The State's policy in this case is to provide in-state tuition to residents of the State who are citizens and immigrant aliens lawfully admitted for permanent residence. In-state tuition is not available to certain students, however, regardless of whether they have established residence within the State. Within this class are citizens who are financially dependent either on parents or on a spouse who is not domiciled in the State, as well as citizens who are members of the Armed Forces and have been assigned by the military to attend the University.14 Also within the class are nonimmigrant aliens, who have not been admitted to this country for permanent residence.
In each case in which the Court has tested state alienage classifications under the Equal Protection Clause, the question has been the extent to which the States could permissibly distinguish between citizens and permanent resident aliens. See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973); Examining Board v. Flores de Otero, 426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Nyquist v. Mauclet, 432 U.S. 1, 97 S.Ct. 2120, 53 L.Ed.2d 63 (1977). We recently summarized these decisions as implying that "there would be few—if any—areas in which a State could legitimately distinguish between its citizens and lawfully resident aliens." Cabell v. Chavez-Salido, 454 U.S., at 438, 102 S.Ct., at 739 (emphasis added). In this case, however, the question is whether the State can distinguish between two groups, each of which consists of citizens and aliens. For two reasons, the State's classification should not be deemed "suspect" and subjected to strict scrutiny.
First, unlike immigrant aliens, nonimmigrants such as G-4 visaholders are significantly different from citizens in certain important respects. Our previous decisions have emphasized that immigrant aliens have been lawfully admitted to this country for permanent residence and share many of the normal burdens of citizenship, such as the duty to pay taxes and to serve in the Armed Forces. Nyquist v. Mauclet, supra, 432 U.S., at 12, 97 S.Ct., at 2126; Hampton v. Mow Sun Wong, 426 U.S., at 107, n. 30, 96 S.Ct., at 1907 n. 30; Sugarman v. Dougall, supra, 413 U.S., at 645, 93 S.Ct., at 2849, Graham v. Richardson, supra, 403 U.S., at 376, 91 S.Ct., at 1854. Implicit in these cases is the judgment that because permanent resident aliens are in so many respects situated similarly to citizens, distinctions between them are to be carefully scrutinized.15 Although there is legitimate doubt whether these decisions have survived Foley, Ambach, and Cabell intact, their judgment about the need for strict scrutiny simply does not apply to state policies that distinguish between permanent resident aliens and nonimmigrants.
As noted earlier, nonimmigrant aliens holding G-4 visas, unlike resident aliens, are exempt from Maryland's income tax, by operation of either international agreement or a combination of federal and state law.16 The University is substantially supported by general state revenues appropriated by the legislature, and of this sum nearly half is generated by the state income tax. See Brief for Petitioners 29, n. 23. Consequently, for the purpose of assessing tuition to the State's University, G-4 nonimmigrant aliens are not situated similarly either to most citizens or to permanent resident aliens. They are distinguished by a trait that is obviously quite relevant from the State's perspective, and legitimately so. Other nonimmigrant aliens are subject to state income taxes, but, as respondents concede, Brief for Respondents 12, 14, 23, they are admitted to this country only temporarily and for limited purposes. These aliens are also not situated similarly to resident citizens or to permanent resident aliens because most are admitted on the condition that they cannot establish domicile in the United States. See Elkins v. Moreno, 435 U.S. 647, 665, 98 S.Ct. 1338, 1349, 55 L.Ed.2d 614 (1978). As a group, then, nonimmigrant aliens are sufficiently different from citizens in relevant respects that distinctions between them and citizens or immigrant aliens should not call for heightened scrutiny.
Second, the State's tuition policy, as it applies to G-4 visaholders, simply cannot be broadly characterized as a classification that discriminates on the basis of alienage. It is more accurately described as a policy that classifies on the basis of financial contribution toward the costs of operating the University. In one class are citizens and permanent resident aliens, all of whom have lived in the State and have contributed to state revenues through the payment of income taxes. To these students the State offers its in-state tuition, which covers only a portion of the cost of educating each student. The remainder is subsidized through state revenues, to which the students themselves have contributed by paying the full spectrum of state taxes.
On June 23, 1978, approximately two months after our decision in Elkins v. Moreno, 435 U.S. 647, 98 S.Ct. 1338, 55 L.Ed.2d 614 (1978), the University's Board of Regents adopted a "clarifying" resolution establishing beyond doubt that the State's policy excluding G-4 visaholders from eligibility for in-state tuition was not based on their lack of domicile. For this reason, we remanded the case to the District Court for further proceedings, having concluded that this case was no longer controlled by Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), as limited by Weinberger v. Salfi, 422 U.S. 749, 771, 95 S.Ct. 2457, 2469, 45 L.Ed.2d 522 (1975). Toll v. Moreno, 441 U.S. 458, 461-462, 99 S.Ct. 2044, 2045-2046, 60 L.Ed.2d 354 (1979). On remand, the District Court concluded that although the clarifying resolution adopted on June 23, 1978, eliminated the "conclusive presumption" that respondents could not establish domicile, the existence of such a presumption before that date denied respondents due process under the teaching of Vlandis v. Kline, supra.
There is legitimate doubt whether at this late date anything remains of Vlandis v. Kline but its lifeless words on the pages of these Reports. Such doubts, however, need not be resolved in this case. The University has made clear that domicile is not the principal consideration underlying its tuition policy as applied to respondents, and in my view that policy is rationally related to other legitimate purposes proffered by the State. The classification challenged by respondents did not change on June 23, 1978. If the classification is valid today, as I believe it is, then it was valid before the State issued its "clarifying" resolution. A statute's consistency with the Due Process Clause or the Equal Protection Clause should not depend on which purpose state officials choose to emphasize at a particular time, as long as one of the State's purposes is rationally served by the statute. See McGowan v. Maryland, 366 U.S., at 426, 81 S.Ct., at 1105 ("A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it").
The international organizations covered by the provision are those that are entitled to the privileges, exemptions, and immunities conferred under the International Organizations Immunities Act, 59 Stat. 669, 22 U.S.C. § 288 et seq. At the time suit was brought, the named plaintiffs in this case were dependents of employees of either the Inter-American Development Bank or the International Bank for Reconstruction and Development (World Bank).
A fourth individual, Rene Otero, Jr., a respondent in this Court, was made a named plaintiff in 1980 when a supplemental complaint was filed.
The court certified a class of G-4 visaholders or their dependents who, "residing in Maryland, . . . are current students at the University of Maryland, or . . . chose not to apply to the University of Maryland because of the challenged policies but would now be interested in attending if given an opportunity to establish 'in-state' status, or . . . are currently students in senior high schools in Maryland." Moreno v. University of Maryland, 420 F.Supp. 541, 563 (Md.1976).
Citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the District Court dismissed the claim against the University itself. 420 F.Supp., at 548-550. The plaintiffs did not appeal that dismissal.
The District Court did not order the University to grant the named plaintiffs in-state status. Rather, it merely barred the University from denying them and the members of the class "the opportunity to demonstrate that they or any of them are entitled to 'in-state' status for purposes of tuition and charge differential determinations." Id., at 565.
The Court of Appeals stayed its mandate "on the same terms as the district court originally granted its stay." App. to Pet. for Cert. 103a-104a.
Salfi limited Vlandis "to those situations in which a State 'purport[s] to be concerned with [domicile, but] at the same time den[ies] to one seeking to meet its test of [domicile] the opportunity to show factors clearly bearing on that issue.' " Elkins v. Moreno, 435 U.S., at 660, 98 S.Ct., at 1346, quoting Weinberger v. Salfi, 422 U.S. 749, 771, 95 S.Ct. 2457, 2469, 45 L.Ed.2d 522 (1975).
We noted that as to some categories of nonimmigrant aliens, Congress had "expressly conditioned admission . . . on an intent not to abandon a foreign residence or, by implication, on an intent not to seek domicile in the United States." 435 U.S., at 665, 98 S.Ct., at 1349. See, e.g., 8 U.S.C. §§ 1101(a)(15)(B), (F), (H). With respect to G-4 nonimmigrant aliens, however, we concluded that Congress had deliberately declined to "impose restrictions on intent," thereby permitting them to "adopt the United States as their domicile." 435 U.S., at 666, 98 S.Ct., at 1349.
"Are persons residing in Maryland who hold or are named in a visa under 8 U.S.C. § 1101(a)(15)(G)(iv) (1976 ed.), or who are financially dependent upon a person holding or named in such a visa, incapable as a matter of state law of becoming domiciliaries of Maryland?" Id., at 668-669, 98 S.Ct., at 1351 (footnote omitted).
It was entitled "A Resolution Clarifying the Purposes, Meaning, and Application of the Policy of the University of Maryland for Determination of In-State Status for Admission, Tuition, and Charge-Differential Purposes, Insofar as It Denies In-State Status to Nonimmigrant Aliens." App. to Pet. for Cert. 172a.
"Reaffirmation of In-State Policy. Regardless of whether or not the policy approved by the Board of Regents on September 21, 1973, conforms with the generally or otherwise applicable definition of domicile under the Maryland common law, the Board of Regents reaffirms that policy . . . ." Id., at 174a.
"Our decision in Elkins rests on the premise that 'the University apparently has no interest in continuing to deny in-state status to G-4 aliens as a class if they can become Maryland domiciliaries since it has indicated both here and in the District Court that it would redraft its policy "to accommodate" G-4 aliens were the Maryland courts to hold that G-4 aliens can' acquire such domicile. 435 U.S., at 661, 98 S.Ct., at 1347. After the clarifying resolution, this premise no longer appears to be true." 441 U.S., at 461, 99 S.Ct., at 2046.
The District Court's pre-emption holding rested in part on its equal protection analysis; according to the court, "the standard utilized to uphold a state regulation dealing with benefits to be accorded to aliens is essentially the strict scrutiny analysis" of equal protection. 489 F.Supp., at 668.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2.
At the time Takahashi was decided, federal law "permitted Japanese and certain other non-white racial groups to enter and reside in the country, but . . . made them ineligible for United States citizenship." 334 U.S., at 412, 68 S.Ct., at 1139 (footnote omitted).
Justice REHNQUIST, in dissent, suggests that the italicized language should not be interpreted literally. Post, at 28-29. Rather, he suggests, the language can only be understood as explaining three prior Court cases that Takahashi cited in a footnote immediately after the italicized language. 334 U.S., at 419, n. 6, 68 S.Ct., at 1142, n. 6, citing Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131 (1915), Chy Lung v. Freeman, 92 U.S. 275, 280, 23 L.Ed. 550 (1876), and Hines v. Davidowitz, 312 U.S. 52, 65-68, 61 S.Ct. 399, 403-404, 85 L.Ed. 581 (1941). According to Justice REHNQUIST, "in each of these cases, the Court found either a clear encroachment on exclusive federal power to admit aliens into the country or a clear conflict with a specific congressional purpose." Post, at 29. Justice REHNQUIST thus concludes that the language in Takahashi does not mean what it says; instead it means that absent a clear encroachment on exclusive federal power or clear conflict with a federal statute, the States are free to treat aliens as they will. Justice REHNQUIST is wrong. If the language were read in the manner suggested by the dissent, it would fail to explain Takahashi itself: The California statute at issue in Takahashi, denying certain lawful aliens the right to obtain commercial fishing licenses from the State, presented neither "a clear encroachment on exclusive federal power to admit aliens" nor "a clear conflict with a specific congressional purpose." Justice REHNQUIST's non literal interpretation of the Takahashi holding is simply wishful thinking on his part.
While pre-emption played a significant role in the Court's analysis in Takahashi, the actual basis for invalidation of the California statute was apparently the Equal Protection Clause of the Constitution. Commentators have noted, however, that many of the Court's decisions concerning alienage classifications, such as Takahashi, are better explained in pre-emption than in equal protection terms. See, e.g., Perry, Modern Equal Protection: A Conceptualization and Appraisal, 79 Colum.L.Rev. 1023, 1060-1065 (1979); Note, The Equal Treatment of Aliens: Preemption or Equal Protection?, 31 Stan.L.Rev. 1069 (1979).
Our cases do recognize, however, that a State, in the course of defining its political community, may, in appropriate circumstances, limit the participation of noncitizens in the States' political and governmental functions. See, e.g., Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982); Ambach v. Norwick, 441 U.S. 68, 72-75, 99 S.Ct. 1589, 1592-1593, 60 L.Ed.2d 49 (1979); Foley v. Connelie, 435 U.S. 291, 295-296, 98 S.Ct. 1067, 1070, 55 L.Ed.2d 287 (1978); Sugarman v. Dougall, 413 U.S. 634, 646-649, 93 S.Ct. 2842, 2849-2851, 37 L.Ed.2d 853 (1973).
In De Canas, we considered whether a California statute making it unlawful in some circumstances to employ illegal aliens was invalid under the Supremacy Clause. We upheld the statute. Justice REHNQUIST's dissent in the present case suggests that the pre-emption claim was rejected in De Canas because "the Court found no strong evidence that Congress intended to pre-empt" the State's action. Post, at 31. Justice REHNQUIST has misread De Canas. We rejected the pre-emption claim not because of an absence of congressional intent to pre-empt, but because Congress intended that the States be allowed, "to the extent consistent with federal law, [to] regulate the employment of illegal aliens." 424 U.S., at 361, 96 S.Ct., at 939.
"Congress defined nonimmigrant classes to provide for the needs of international diplomacy, tourism, and commerce, each of which requires that aliens be admitted to the United States from time to time and all of which would be hampered if every alien entering the United States were subject to a quota and to the more strict entry conditions placed on immigrant aliens." 435 U.S., at 665, 98 S.Ct., at 1349 (footnote omitted).
See, e.g., 8 U.S.C. § 1101(a)(15)(B) (temporary visitors for pleasure or business); § 1101(a)(15)(C) (aliens in transit); § 1101(a)(15)(F) (foreign students); § 1101(a)(15)(H) (temporary workers).
Among the similar agreements pertaining to other international organizations are the following: Articles of Agreement of the International Finance Corporation, Art. VI, § 9(b),  7 U.S.T. 2197, 2216, T.I.A.S. No. 3620 (1955) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Corporation to . . . employees of the Corporation who are not local citizens, local subjects, or other local nationals"); Articles of Agreement of the International Development Association, Art. VIII, § 9(b),  11 U.S.T. 2284, 2306, T.I.A.S. No. 4607 (1960) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Association to . . . employees of the Association who are not local citizens, local subjects, or other local nationals"); Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, Art. 24, § 2,  17 U.S.T. 1270, 1279, T.I.A.S. No. 6090 (1965) ("Except in the case of local nationals, no tax shall be levied . . . on or in respect of salaries, expense allowances or other emoluments paid by the Centre to officials or employees of the Secretariat"); Articles of Agreement of the International Monetary Fund, Art. IX, § 9(b), 60 Stat. 1414, T.I.A.S. No. 1501 (1945) ("No tax shall be levied on or in respect of salaries and emoluments paid by the Fund to . . . employees of the Fund who are not local citizens, local subjects, or other local nationals").
And by virtue of Md.Ann.Code, Art. 81, § 280(a) (1980), this group of G-4 visaholders is able to shield organizational income from Maryland income tax.
Petitioners point out that the international banks for which the named respondents' parents work provide reimbursement for the difference between in-state and out-of-state tuition. Certainly, this fact does not assist—but undermines—petitioners' argument. Such reimbursements only add to the employment costs of the international organizations, thereby frustrating the federal intention of benefiting the international organizations.
Some members of the class represented by the respondents derive their state tax exemption not from a treaty or international agreement, but from the combination of federal and state statutes. See supra, at 15-16, and n. 22. As to these G-4 aliens, it is true, as the dissent notes, post, at 34-35, that the Federal Government has not precluded the collection of a state income tax that is imposed on domiciliaries of the State. But even with respect to this group of G-4 aliens, the Federal Government has taken the affirmative steps of permitting the establishment of domicile and of providing federal income tax exemption on organizational salaries. This special status afforded by the Federal Government is, in our view, inconsistent with the University of Maryland's discriminatory denial of in-state status to G-4 aliens who are domiciled in the State.
It is important to note that this case does not involve, and we express no views regarding, a State's imposition of a burden on all individuals sharing a common relevant characteristic, of whom only some are aliens.
Petitioners note, however, that whereas the District Court's 1976 order was based solely on due process grounds, the District Court, on remand, held the in-state policy as it operated during the period following the clarifying resolution invalid on two different grounds—equal protection and pre-emption. In our view, this fact is of little moment. Just as a respondent is entitled to defend in this Court a judgment on grounds different from those relied on by the court below, e.g., Colautti v. Franklin, 439 U.S. 379, 397, n. 16, 99 S.Ct. 675, 686, n. 16, 58 L.Ed.2d 596 (1979), respondents in this case were entitled, following our remand, to support a reaffirmance of the earlier order on grounds previously urged but not relied on.
Even if we were to assume that the judgment of the District Court was indeed vacated, we could not say that the terms of the University's waiver of sovereign immunity—that the District Court's order be "finally affirmed on appeal"—would not be satisfied. Petitioners have not prevailed on the merits in a single court, despite the numerous decisions that this litigation has prompted. By its original order, the District Court held that the University's in-state policy was invalid insofar as it discriminated against G-4 aliens. Today, we reaffirm that conclusion.
The Justice opines that "[i]f the Court has eschewed strict scrutiny in the 'political process' [alienage-equal protection] cases, it may be because the Court is becoming uncomfortable with the categorization of aliens as a suspect class." Post, at 42, n. 12.
Among other things, the Court noted in Sugarman that the State may exclude aliens from governmental positions "that go to the heart of representative government," in an attempt " 'to preserve the basic conception of a political community.' " 413 U.S., at 647, 93 S.Ct., at 2850, quoting Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972). The Sugarman Court thus recognized the "State's historical power to exclude aliens from participation in its democratic political institutions." 413 U.S., at 648, 93 S.Ct., at 2850. This makes Justice REHNQUIST's analysis particularly perplexing; his discussion appears to suggest that Sugarman —decided in 1973 somehow undercut the analysis of Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). See post, at 40.
Justice REHNQUIST suggests that alienage classifications involving political interests are subjected to a lesser standard of review because "the strength of the State's interest is great when it seeks to exclude aliens from its political processes." Post, at 41, n. 12. This suggestion is inaccurate. Such classifications are permissible because the Court has recognized that they are likely to be based on meaningful distinctions: alienage "is a relevant ground for determining membership in the political community." Cabell v. Chavez-Salido, 454 U.S. 432, 438, 102 S.Ct. 735, 739, 70 L.Ed.2d 677 (1982).
The state courts in De Canas v. Bica, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), had not addressed the question in light of their determination that Congress had completely barred state action in the field of employment of illegal aliens. Consequently, this Court also deferred consideration of the issue. Id., at 363, 96 S.Ct., at 940.
As the Court obligatorily notes, ante, at 12, n. 17, but promptly ignores, our decisions in Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978); Ambach v. Norwick, 441 U.S. 68, 99 S.Ct. 1589, 60 L.Ed.2d 28 (1979); and Cabell v. Chavez-Salido, 454 U.S. 432, 102 S.Ct. 735, 70 L.Ed.2d 677 (1982), all upheld state laws that expressly discriminated against lawfully admitted resident aliens. Such decisions would not have been possible if the mere fact that a law discriminated against aliens placed it in irreconcilable conflict with federal power over immigration.
As I have always understood the Supremacy Clause, if a state law is inconsistent with federal law, the state law is unenforceable. The inconsistency is made no less fatal because the State has a rational basis for, or a compelling interest in, its actions. Under the majority's formulation, a state law that arguably discriminates against aliens conflicts with federal law, and unless further modifications of the pre-emption doctrine are in the offing, that will be the end of the matter.
"[A] host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; and the class of aliens is itself a heterogenous multitude of persons with a wide-ranging variety of ties to this country." Mathews v. Diaz, 426 U.S. 67, 78-79, 96 S.Ct. 1883, 1890-1891, 48 L.Ed.2d 478 (1976) (footnote omitted).
"International organizations shall be exempt from all property taxes imposed by, or under the authority of, any act of Congress, including such acts as are applicable solely to the District of Columbia or the Territories; and shall be entitled to the same exemptions and immunities from State or local taxes as is the United States Government." 91 Cong.Rec. 10867 (1945).
"International organizations shall be exempt from all property taxes imposed by, or under the authority of, any Act of Congress, including such Acts as are applicable solely to the District of Columbia or the Territories."
"MR. RANKIN. This bill does not interfere with State laws in any way?
"MR. ROBERTSON of Virginia. None whatever." 91 Cong.Rec. 10866 (1945).
In the Senate, Senator Taft explained that his Committee had deleted the proposed exemption contained in § 6 because it "felt that that was wholly beyond the power of Congress." 91 Cong.Rec. 12432 (1945).
G-4 visaholders residing in Maryland who are relieved of federal taxes under the Internal Revenue Code have also been exempted from Maryland taxes by operation of state law. Maryland's tax code provides that, with certain exceptions not relevant here, the net income taxable under state law is the taxpayer's federal adjusted gross income. Md.Ann.Code, Art. 81, § 280(a) (1980). By operation of 26 U.S.C. § 893, that amount will not include wages paid by an international organization. The State's decision indirectly to relieve class members of state taxes on their salaries of course provides no basis for pre-emption of the State's tuition policy under the Supremacy Clause.
The District Court, which concluded that the State's tuition policy interfered with Congress' exclusive control over immigration, nevertheless rejected the argument that the policy conflicted with the treaties and agreements relieving respondents of liability for income taxes.
"In this case it is apparent that there is no 'clear conflict' between the policies in question. The University's Policy seeks to confer certain economic benefits on individuals closely affiliated with the State of Maryland. The mere fact that one of the factors which is considered in determining eligibility for this benefit is whether or not the applicant's income is taxed by Maryland does not necessarily imply that the policy conflicts with the tax policies contained in the relevant international agreements. The 'conflict' between these policies, in and of itself, is too attenuated to warrant invalidating the University's Policy." 489 F.Supp. 658, 667 (Md.1980).
As petitioners explain, tuition and fee charges do not pay the full cost of a university education at the University of Maryland. In fiscal year 1981, for example, the University received appropriations from general fund revenues in the amount of $164 million. Brief for Petitioners 29, n. 23. Nearly half of general fund revenues are provided by the State's income tax. Ibid. The State, therefore, subsidizes the cost of education at the University. The amount of the subsidy, of course, is considerably greater for students who are eligible for in-state tuition. Since residents of the State normally pay income tax, and thereby indirectly contribute to the subsidy, it is not unreasonable for the State to accord such persons a reduced tuition. By charging respondents out-of-state tuition, the University is merely asking them to pay their fair share of the cost of state-supported education.
"This standard reduces to a minimum the likelihood that the federal judiciary will judge state policies in terms of the individual notions and predilections of its own members, and until recently it has been followed in all kinds of 'equal protection' cases." Harper v. Virginia Board of Elections, 383 U.S. 663, 681-682, 86 S.Ct. 1079, 1089, 16 L.Ed.2d 169 (1966) (Harlan, J., dissenting).
As suggested earlier, we have affirmed "the general principle that some state functions are so bound up with the operation of the State as a governmental entity as to permit the exclusion from those functions of all persons who have not become part of the process of self-government." Ambach v. Norwick, 441 U.S., at 73-74, 99 S.Ct., at 1592-1594. "[I]n those areas the State's exclusion of aliens need not 'clear the high hurdle of "strict scrutiny," because [that] would "obliterate all the distinctions between citizens and aliens, and thus depreciate the historic value of citizenship." ' Foley v. Connelie, 435 U.S., at 295 [98 S.Ct., at 1070 (citation omitted)." Cabell v. Chavez-Salido, 454 U.S., at 439, 102 S.Ct., at 739 (footnote omitted). The Court has recognized that the strength of the State's interest is great when it seeks to exclude aliens from its political processes, but selection of the appropriate level of "scrutiny" traditionally has depended, not on the nature of the State's interest, but on the nature of the burdened class. If the Court has eschewed strict scrutiny in the "political process" cases, it may be because the Court is becoming uncomfortable with the categorization of aliens as a suspect class.
"The distinction between citizens and aliens, though ordinarily irrelevant to private activity, is fundamental to the definition and government of a State. The Constitution itself refers to the distinction no less than 11 times, see Sugarman v. Dougall, supra [413 U.S.], at 651-652 [93 S.Ct., at 2862] (REHNQUIST, J., dissenting), indicating that the status of citizenship was meant to have significance in the structure of our government. The assumption of that status, whether by birth or naturalization, denotes an association with the polity which, in a democratic republic, exercises the powers of governance." Ambach v. Norwick, supra, at 75, 99 S.Ct., at 1593.
Justice BLACKMUN has chosen to respond to this portion of the dissent, but misunderstands my point. I have observed that the political powerlessness of aliens is the result of state-created classifications which this Court has upheld as constitutional. One may nevertheless conclude, as Justice BLACKMUN does, that the political powerlessness of aliens is still a reason for applying strict scrutiny to alienage classifications. My point, to which Justice BLACKMUN's concurrence is unresponsive, is that a classification which is constitutionally relevant to many important state purposes should not be considered "suspect." It is beside the point to recognize that alienage may be irrelevant for some other purposes. Were this consideration conclusive, all state classifications would be considered "suspect" under the Equal Protection Clause because every classification is relevant to some purposes and irrelevant to others.
"a. Where a student is financially dependent upon a parent, parents, or spouse domiciled in Maryland for at least six consecutive months prior to the last day available for registration for the forthcoming semester.
"b. Where a student is financially independent for at least the preceding twelve months, and provided the student has maintained his domicile in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester.
"c. Where a student is the spouse or a dependent child of a full-time employee of the University.
"d. Where a student who is a member of the Armed Forces of the United States is stationed on active duty in Maryland for at least six consecutive months immediately prior to the last day available for registration for the forthcoming semester, unless such student has been assigned for educational purposes to attend the University of Maryland.
"e. Where a student is a full-time employee of the University of Maryland.
"2. It is the policy of the University of Maryland to attribute out-of-state status for admission, tuition, and charge-differential purposes in all other cases." App. to Pet. for Cert. 167a-168a.
"Resident aliens are obligated to pay their full share of the taxes that support the assistance programs. There thus is no real unfairness in allowing resident aliens an equal right to participate in programs to which they contribute on an equal basis." 432 U.S., at 12, 97 S.Ct., at 2126.
In addition, nonimmigrant aliens are not required to register for military service. See 50 U.S.C.A. App. § 453(a) (1976 ed., Supp.V); 32 CFR § 1611.2 (1980).
Other nonresident aliens whose tax liability is not the subject of a treaty or special law such as the IOIA are subject to taxation only on income received from sources within the United States at a maximum rate of 30%. 26 U.S.C. § 871(a)(1).
Respondents, citing Nyquist v. Mauclet, 432 U.S., at 9, 97 S.Ct., at 2125, argue that strict scrutiny applies even when the State discriminates only against a certain subclass of aliens rather than all aliens. In Nyquist, the State argued that its law limiting financial assistance for higher education to citizens and resident aliens who declared their intention to seek citizenship was not a classification on the basis of alienage. Rather, it distinguished between aliens who intended to become citizens and those who did not. The Court rejected this argument, noting that the statute was "directed at aliens and that only aliens [were] harmed by it." Ibid. In this case, however, the State also denies in-state tuition to certain resident citizens, as well as to G-4 visaholders. Moreover, even if the State denied in-state tuition to G-4 visaholders alone, strict scrutiny would not be called for. As argued in the text, G-4 visaholders and other nonimmigrant aliens, unlike permanent resident aliens who were the subject of discrimination in Nyquist, are not so similarly situated to citizens as to render distinctions between such aliens and citizens "suspect."
As respondents note, G-4 visaholders do pay state taxes other than the income tax. State and local property taxes, however, do not enter the general funds of the State and thus do not support the operation of the University. Brief for Petitioners 29, n. 23. In any event, "a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970). Respondents' exemption from the income tax sufficiently distinguishes them from citizens and other aliens who do pay such taxes, and therefore contribute a greater portion of their incomes to support the University, that the State's decision to require higher tuition payments is certainly rational.


text:
United States of America, Plaintiff-Appellee, v. Maurice L. Maxwell, Defendant-Appellant.
Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.
Defendant-appellant, Maurice Maxwell, was convicted of possession with intent to distribute five grams or more of a substance containing a cocaine base in violation of 21 U.S.C. § 841(a)(1). Although his conviction was affirmed on an earlier appeal, we have remanded this case twice for resentencing in light of recent opinions from the United States Supreme Court and our own circuit. Maxwell now appeals for the third time, arguing that the district court miscalculated the applicable sentencing range under the United States Sentencing Commission Guidelines Manual. It appears that the third time's the charm; for the reasons that follow, we affirm the district court's sentence.
A jury convicted Maxwell on December 7, 2011. His initial sentencing hearing was on February 29, 2012. At the hearing, the district court applied the Sentencing Guidelines' career offender enhancement because Maxwell was over the age of eighteen when he committed the instant offense, a controlled substance offense, and he had three qualifying prior convictions: a Wisconsin conviction for possession with intent to deliver; a Minnesota conviction for simple robbery; and a Minnesota conviction for fleeing from an officer. Applying the career offender enhancement, Maxwell's Sentencing Guidelines range was between 262 and 327 months' imprisonment.
The district court sentenced Maxwell to 144 months' imprisonment, adjusted to 125 months to account for the 19 months that Maxwell had already served. The district court also imposed five years of supervised release. Maxwell appealed, and this court affirmed his conviction. See United States v. Maxwell, 724 F.3d 724 (7th Cir. 2013). But we found that the Supreme Court's decision in Dorsey v. United States, 132 S. Ct. 2321 (2012), held that the Fair Sentencing Act's lower mandatory minimums applied to all defendants sentenced after August 3, 2010. Id. at 728. So we ordered “a limited Paladino remand so that the district court may inform us whether it wants to resentence the defendant.” Id. at 729. On remand, the district court noted that in light of Dorsey, it might have issued a different sentence; so we ordered a full remand and resentencing. See United States v. Maxwell, 527 F. App'x 550, 551 (7th Cir. 2013).
Taking into consideration the nature of [Maxwell's] offense and the correct advisory guidelines; as well as [Maxwell's] personal history, characteristics and recent steps toward rehabilitation; I find, as to Count 1 of the indictment, that a sentence of 120 months is reasonable and not more than necessary to satisfy the statutory purposes of sentencing set forth at Section 3553(a) of Title 18.
The district court again credited Maxwell 19 months for the amount of time he had served in prison prior to his conviction. The district court retained the original terms and conditions of Maxwell's supervised release.
Maxwell appealed again. On February 25, 2015, Maxwell and the government filed a joint motion for summary reversal and remand for resentencing in regards to certain conditions of Maxwell's supervised release, in light of United States v. Thompson, 777 F.3d 368 (7th Cir. 2015). We granted the motion on April 30, 2015, vacating the sentence and remanding for a second resentencing.
[I]f I didn't make it clear: in my last resentencing, as well as really the first one, I didn't feel bound by the career offender guideline. I arrived at a sentence based on the factors of Section 3553(a) of Title 18 and I continue to believe that the sentence imposed under the amendments applies ․. I did consider the career offender guidelines before thinking about an appropriate sentence, but I have not relied upon those guidelines in arriving at the sentence here. And so whether or not simple robbery is an appropriate consideration or not, I am comfortable with the sentence that has been imposed independent of those guidelines.
The district court again sentenced Maxwell to 120 months' imprisonment, with credit for 19 months. Maxwell appealed.
Maxwell's sole contention is that his prior Minnesota conviction for simple robbery does not constitute a crime of violence under the Sentencing Guidelines; and that the district court erred by applying the career offender enhancement in calculating the applicable sentencing range. “We review de novo whether a prior conviction qualifies as a predicate conviction for purposes of applying the career offender enhancement.” United States v. Womack, 610 F.3d 427, 430 (7th Cir. 2010) (citation omitted).
As discussed above, while Maxwell originally had three qualifying prior convictions, all parties now agree that his conviction for fleeing from an officer no longer constitutes a crime of violence. Of his two remaining convictions, Maxwell only challenges his prior Minnesota conviction for simple robbery. He claims that it is not a crime of violence under the Sentencing Guidelines because the Minnesota statute for “simple robbery” is broader than § 4B1.2(a)'s definition of a “crime of violence.” As a result, he claims the district court improperly imposed the career offender enhancement.
We apply the “categorical approach” to determine whether Maxwell's prior Minnesota conviction for simple robbery qualifies as a crime of violence under § 4B1.2(a)(1). See United States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009) (citing James v. United States, 550 U.S. 192 (2007)). Under the categorical approach, we do not research the underlying facts of Maxwell's prior conviction. Id. (citations omitted). Rather, we only examine whether the Minnesota simple robbery statute has as an element of the offense the “use, attempted use, or threatened use of physical force against the person of another.” Id. (citations omitted); see also United States v. Curtis, 645 F.3d 937, 939–40 (7th Cir. 2011) (“The question is whether the elements of the offense are of the type that would justify its inclusion ․ without inquiring into the specific conduct of this particular offender.”) (Internal quotations and citations omitted).
Whoever, having knowledge of not being entitled thereto, takes personal property from the person or in the presence of another and uses or threatens the imminent use of force against any person to overcome the person's resistance or powers of resistance to, or to compel acquiescence in, the taking or carrying away of the property is guilty of robbery.
Minn. Stat. § 609.24 (emphasis added).
Maxwell argues that the Minnesota statute is broader than § 4B1.2(a)(1) in two material respects. First, he notes that the Minnesota statute only requires “force,” while the Sentencing Guidelines specifically require “physical force.” Second, he asserts that the Minnesota statute allows the force to be against “any person,” while the Sentencing Guidelines state that the physical force must be against the “person of another.” Both arguments are without merit.
We first address Maxwell's argument regarding requisite force. The United States Supreme Court has clarified that “physical force” means “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 140 (2010) (citation omitted); see also Curtis, 645 F.3d at 940 (applying Johnson to § 4B1.2(a)(1)). Maxwell contends that the Minnesota statute does not clarify whether the “force” necessary to constitute a simple robbery is force capable of causing physical pain or injury. He speculates that “mental force” could constitute a simple robbery in Minnesota, but not a crime of violence under § 4B1.2(a)(1).
We rely on Minnesota law to determine what amount of force constitutes a simple robbery in Minnesota. See Johnson, 559 U.S. at 138 (citation omitted). Under Minnesota law, “fifth-degree assault” is a lesser included offense of simple robbery. State v. Stanifer, 382 N.W.2d 213, 220 (Minn. Ct. App. 1986). Fifth-degree assault is defined under the Minnesota Criminal Code as either committing “an act with intent to cause fear in another of immediate bodily harm or death,” or “intentionally inflict[ing] or attempt[ing] to inflict bodily harm upon another.” Minn. Stat. § 609.224 subd. 1 (emphasis added). Further, bodily harm is defined under the Minnesota Criminal Code as “physical pain or injury, illness, or any impairment of physical condition.” Minn. Stat. § 609.02 subd. 7.
Therefore, under Minnesota law, intentionally committing an act that inflicts physical pain or injury on another, or attempts or threatens to do so, is a lesser included offense of simple robbery. As a result, although the Sentencing Guidelines state “physical force” while the Minnesota statute only uses the word “force,” both convey force capable of causing physical pain or injury. Maxwell's argument that the Minnesota statute is broader than § 4B1.2(a)(1) fails.
Maxwell also asserts that the Minnesota statute is broader than the Sentencing Guidelines because it punishes force applied against “any person,” while § 4B1.2(a)(1) only punishes force applied against the “person of another.” Maxwell claims this distinction is important because under Minnesota law an individual who threatens to harm himself unless the victim hands over his possessions commits simple robbery, but it would not constitute a crime of violence under the Sentencing Guidelines. However, Maxwell has not presented any instances of simple robbery convictions in which the robber threatened to harm himself if the victim did not surrender his property. Maxwell cannot rely on fanciful hypotheticals not applicable in real world contexts (apart from law school exams) to show that the Minnesota statute is broader than the Sentencing Guidelines. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) (“[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.”).
Further, the Advisory Committee Comments to Minnesota Statute § 609.24 clarify this issue. Regarding the phrase “[a]gainst any person,” the Comments state that “[t]he kind of case covered involving one other than the victim is one in which ‘X’ threatens to kill ‘Y’ if ‘Z’ does not hand over his wallet.” Thus, although the Minnesota statute uses the words “any person,” while § 4B1.2(a)(1) states “person of another,” both cover situations in which a robber threatens to harm a victim or a third person, not instances where the robber threatens to harm himself.
1. Even if the career offender enhancement were inappropriate, we would still affirm the sentence because the district court expressly rejected relying on the Sentencing Guidelines range in determining Maxwell's sentence. See United States v. Abbas, 560 F.3d 660, 666–67 (7th Cir. 2009); see also Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (“There may be instances when, despite application of an erroneous Guidelines range, a reasonable probability of prejudice does not exist ․. The record in a case may show, for example, that the district court thought the sentence it chose was appropriate irrespective of the Guidelines range.”).

matches: v. § 841 v. v. v. v. v. § 4 § 4 v. v. v. § 609 § 4 v. § 4 § 4 v. § 609 § 609 § 4 § 4 v. § 609 § 4 v. v.