Hampton v. Mow Sun Wong – Oral Reargument – January 12, 1976

Media for Hampton v. Mow Sun Wong

Audio Transcription for Opinion Announcement – June 01, 1976 in Hampton v. Mow Sun Wong
Audio Transcription for Oral Argument – January 13, 1975 in Hampton v. Mow Sun Wong

Audio Transcription for Oral Reargument – January 12, 1976 in Hampton v. Mow Sun Wong

Warren E. Burger:

We will hear arguments next in 1596, Hampton against Wong.

Mr. Solicitor General.

Robert H. Bork:

Mr. Chief Justice and may it please the Court.

We are here on writ of certiorari to the Court of Appeals for the Ninth Circuit.

Respondents are four aliens who have been denied employment in the Federal Competitive Civil Service by a reason of the Civil Service Commission’s regulation requiring that applicants, for most positions, be either citizens of the United States or persons owing the United States Allegiance.

Respondents filed a class action challenging this regulation unconstitutional on other grounds.

The District Court, on the Government’s motion, dismissed for failure to state a claim; the Ninth Circuit reversed holding that the regulation violates the equal protection principle of the Due Process Clause of the Fifth Amendment.

The Court said that alienage is a suspect classification so that the compelling governmental interest must be shown.

The Court of Appeal relied as we believe mistakenly on the cases of this Court in Graham against Richardson and Sugarman against Dougall.

Those cases concern state restrictions on the eligibility of aliens for state employment and state welfare benefits.

It is our contention that the Civil Service Commission’s regulation is a valid exercise of a national power, and I reach that result in alternative ways.

My first submission is that the equal protection principle has no application to the Federal Government’s dealings with aliens as aliens.

I want to be quite clear about that.

The equal protection principle obviously applies to persons, which includes of course aliens and it protects them from a variety of inequalities.

For example, inequalities on account of race, inequalities on account of religion, but my submission is that the equal protection principle does not apply to a pure alienage classification.

Byron R. White:

In other words, Mr. Solicitor General, the Congress could make it a criminal offense for an alien to rob a bank but only a criminal if he is an alien.

Robert H. Bork:

I think that might be the case.

He certainly would — the Congress could not bar — Congress could make substantive rules but Congress could not deprive the alien of due process of law, trial, and so forth.

I think that Congress may make it —

Byron R. White:

It could describe and create and define the offense as an offense only if committed by an alien.

Robert H. Bork:

In effect, I think some of the things and many of the statutes from the books are offenses only for aliens.

Byron R. White:

And he could do that with bank robbery or interstate transportation of a stolen car or stealing from the mail or any of the normal federal offenses with which we are familiar.

Robert H. Bork:

Yes, I have a little difficulty imagining the situation in which those are not made offenses also for citizens but they certainly — the argument I am making, which I think would take into its logical extreme would lead to that result.

I think one need not practice and anticipate that particular result.

Byron R. White:

Excuse me, that is the thrust of your —

Robert H. Bork:

The contention is that the aliens have the explicit guarantees of the Constitution, for example, Congress could not provide Ex post facto punishment for an alien who would rob the bank. Congress could not deprive of an alien of due process of law.

Congress could not deprive the alien of his First Amendment right to speak or to worship.

Congress may do none of those things and Congress may not treat an alien differently from other person on the grounds that he is Black or White or Yellow or a female, but I think Congress has plenary power with respect to alienage.

Thurgood Marshall:

Why does equal protection (Inaudible) left in.

Robert H. Bork:

Well precisely, Mr. Justice Marshall, because whereas the states in the cases that we dealt with in Sugarman against Dougall and Graham against Richardson and In re Griffiths and so forth, have no power given to them by the Federal Constitution over aliens as a class.

Robert H. Bork:

The Federal Government has plenary power, extraordinary power, over alienage and aliens as a class, not only the power coming from Article 1 Section 8 Clause 4 which gives explicit power to legislate with respect to immigration and naturalization, but indeed the inherent powers arising out of the power to conduct foreign policy, the power of national defense, and so forth.

And, indeed, the Constitution itself, in many places, Article 4, confines privileges and immunities to citizens, so that, for purposes of federal legislation, alienage is not only a suspect classification, it is an inevitable classification.

The Federal Government had not only the power but the duty to legislate with respect to aliens as a class.

Thurgood Marshall:

That could be said in so long as it is within the Protection Clause.

There would be nothing contrary about that, would there?

Robert H. Bork:

Well, my alternative submission —

Potter Stewart:

It is internally inconsistent to say that.

Robert H. Bork:

I think it is internally inconsistent to say it to this extent.

The respondents’ claim here, and I think the only way respondents can prevail, is that alienage is a suspect classification, which I think is quite wrong in this context, and therefore we must show the most compelling governmental need to classify with respect to alienage.

If that were true, I do not see how any federal legislation with respect to alienage is going to survive.

I do not know of a statute off hand that has ever survived this great judicial scrutiny test.

Potter Stewart:

Just a way of announcing the conclusion in advance.

Robert H. Bork:

I think so, Mr. Justice Stewart.

So that if we say that a compelling governmental interest must be shown, I doubt it will ever be shown with respect to any of these statutes that we have in our brief in the appendix and our supplemental brief in the appendix over 200 provisions in the Federal Code which classify, one way or another, by alienage.

Warren E. Burger:

Could Congress not —

Robert H. Bork:

Pardon me.

I wanted to say that that does not even deal with Title 8 which is the main codification of the rights and liabilities of aliens.

Pardon, Mr. Chief Justice.

Warren E. Burger:

Could Congress, Mr. Solicitor General, enact a statute now that hereafter all aliens admitted to this country must apply for citizenship within five years or be deported?

Robert H. Bork:

I have no doubt, Mr. Chief Justice, that that legislation would be well within Congress’ power.

Warren E. Burger:

Could they apply it then to persons who had been in the United States before the enactment of that statute?

Robert H. Bork:

I have no doubt that that is true also, Mr. Chief Justice.

We certainly had the deportation cases which were much more severe than that in which persons who had joined the Communist Party, at a time when it was not illegal to do so, were subsequently deported because of an after enacted statute, so that I have no doubt.

Warren E. Burger:

Are those illustrations of the kind of plenary power you suggest Congress has over aliens as aliens?

Robert H. Bork:

They are indeed, Mr. Chief Justice.

John Paul Stevens:

But, Mr. Solicitor General has Congress done anything with respect to the eligibility of aliens for federal employment?

We are not really dealing with a statute, are we, here?

Robert H. Bork:

Mr. Justice Stevens, we are dealing with regulation taken under the Civil Service Act of 1883 and Congress —

John Paul Stevens:

But the statute itself is silent with respect to discrimination involved, is it not?

Robert H. Bork:

The statute itself is silent.

Robert H. Bork:

The legislative history of the statute is not silent, Mr. Justice Stevens.

John Paul Stevens:

Is it not also true that any executive order is also silent with respect to the particular discrimination?

Robert H. Bork:

I do not believe that is true, Mr. Justice Stevens.

In the second part of our main brief, it is quite clear not only the Congress in enacting the Civil Service Statute and its various amendments later, it is also quite clear that President Arthur required in his order citizenship and that President Theodore Roosevelt extended the category for not only citizens but to persons who owe allegiance.

So that two Presidents dealt with this citizenship requirement in a knowing way.

Now I think in so far as we are talking about a deliberate policy, Mr. Justice Stevens, the legislative history which is cited in our brief, and the two Presidents, and the Executive Order 10577, which is also in our brief, refers to citizenship.

So, I think this is about as deliberate a policy as one could seek.

John Paul Stevens:

Let me put a question that I was leading up to, and I am not sure it is appropriate, but I have it in mind.

Supposing the paragraph of the regulation of the Civil Service Agency, whatever its appropriate title is, requiring citizenship as a condition of eligibility were simply repealed so there was nothing in words that required that an applicant for employment be a citizen and then take it a step further and suppose the Post Master in Chicago had to take on extra help with the Christmas work or something like that and he put into effect a regulation for his own office requiring everyone to be a citizen.

Would you contend such a regulation would be valid?

He of course speaks for the Federal Government within his own office.

Robert H. Bork:

Yes, as a matter of fact, of course, the post office does now does hire aliens.

John Paul Stevens:

I understand they do, but —

Robert H. Bork:

But in this case, if the regulation were repealed I would think, if we were dealing with a part of the Federal Civil Service that the repeal of the regulation and the failure to exclude citizens would be in contravention of the executive order and in contravention of the intent of Congress.

Now, I do not know, I suppose it is also —

John Paul Stevens:

You really have not answered the question I mean to put.

I am not — suppose the statute is silent, the executive order is silent, and the top regulation is silent and just the local branch of the Federal Government decides for itself it would like to employ citizens only.

Can they do so?

Robert H. Bork:

I think there is no doubt, Mr. Justice Stevens that if all of those expressions of policy are made silent that the local branch of government certainly could.

John Paul Stevens:

It could make the discrimination?

Robert H. Bork:

Well, I would prefer not to use the word “discrimination”.

John Paul Stevens:

Well, you say it is made — it is inherent in the system, it is inherent in the system.

Robert H. Bork:

The Federal Government’s power to do this, to classify it this way, is inherent in the system.

The Federal Government cannot classify —

John Paul Stevens:

It includes the power of any federal officer unless explicitly prohibited.

Robert H. Bork:

I would think so, I would think so, I would think so.

Indeed, there are sections of the government which do have the power to hire aliens, and do so.

Harry A. Blackmun:

How do you justify that under the regulation under the executive order, were there two exceptions that are specified?

Robert H. Bork:

I believe so, Mr. Justice Blackmun.

There is a –

Harry A. Blackmun:

I am thinking of the Post Office Department, I am thinking of NASA, and others.

Robert H. Bork:

I think they are not under the competitive civil service now, are they, the Post Office?

They are not, and I think there are statutory exceptions for certain places like the Defense Department which, by nature of its work, may wish often to hire aliens and may wish to make individualized determinations and finds it worthwhile to expend its resources it is making.

Warren E. Burger:

I suppose the Atomic Energy Commission would be under that blanket too, would it be?

Robert H. Bork:

I am not particularly aware of the —

Warren E. Burger:

Were there aliens employed in the Atomic Energy Commission?

Robert H. Bork:

You can get exceptions made with the circumstance, Mr. Chief Justice, and the Atomic Energy Commission undoubtedly, for that kind of work, would have to make that kind of exception at the time when the European scientist came to this country.

Harry A. Blackmun:

Sometimes the most sensitive areas are the exception areas.

Robert H. Bork:

Mr. Justice Blackmun, I do not think the reason for this regulation is necessarily the sensitivity of the work involved.

That is one reason.

One thing that requiring residents in this country for five years does is to give, in the ordinary case, a track record for the person applying and a way of checking about him in a situation where you probably need some kind of talent.

Somebody has not been there five years, you expend the resources to do the checking or take your chances, and that seems to me in no way to cast doubt upon the general rule of the Federal Government sees fit to follow.

But my main point is that we have here an exercise by the Civil Service Commission of a delegated combined power of Congress and the President, and those are powers relating to naturalization to foreign policy, to national defense, and to treaty making.

In fact, I think what has been exercised is a power that is inherent without even respect to the constitutional provision of the very idea of a nation states which possesses sovereignty.

Every nation state distinguishes between those who owe allegiance to it and those who do not, and so obvious is that that I think every nation or virtually every nation in the world makes that distinction.

And I think so obvious is it that it has been exercised and gone uncontested for over 90 years in this country in this explicit form, and I think that is constitutionally a relevant factor, because it gives this practice all of the support that long continued in the university accepted usage confers.

Now I think those are what make this case different from the state cases, Sugarman and Graham.

Respondents’ only argument in this connection is I think both a simplistic and a mechanical one, and that argument runs as follows: Whenever an equal protection principle has been formulated in a case involving a state, that principle must automatically be applied against the Federal Government.

Their example is the formulation of the equal protection principle in Brown against Board of Education applied against the Federal Government in Bolling against Sharpe.

And I think that argument is patently fallacious, because that progression from state to federal cannot be made when the Constitution explicitly gives the Federal Government the power and, as I say, the duty to legislate about aliens.

States are not independent sovereigns.

They do not have the power to naturalize.

They do not have the power to conduct foreign affairs, to make decisions about national defense, to make treaties, and they have none of the powers which give Congress power over aliens and over alienage.

When we move from state cases like Sugarman and Graham against Richardson, we really move into a whole new framework of cases like the Chinese exclusion case, cases like Harisiades against Shaughnessy, Kleindienst against Mandel, cases that show an extraordinary degree of power in this field.

I think it is incontestable as the Chief Justice’s question a moment ago pointed out that Congress has the power to exclude aliens in this country all together, and that is a corollary of that power.

It can attach such conditions to entry as it sees fit.

Potter Stewart:

Now that goes to even further than the argument that you made earlier —

Robert H. Bork:

It does indeed.

Potter Stewart:

— because that would follow that aliens could be excluded on the ground that they would be granted none of the rights granted to other people in our country by the Bill of Rights of the Constitution and above that condition.

Robert H. Bork:

I admit to say also earlier, Mr. Justice Stewart that aliens could not be deprived of the explicit protections of the Constitution.

Potter Stewart:

But could they be admitted on the condition that they would be given none of the benefits?

Robert H. Bork:

No, I think not.

Potter Stewart:

Why not if your argument — now that you can —

Robert H. Bork:

Well, because we are dealing with unconstitutional conditions, Mr. Justice Stewart, we are dealing with explicit guarantees that are asked to be given up by the alien.

Here, I am merely suggesting that they could have been admitted on the condition that they not apply for federal employment until they are naturalized, which I think is not an unconstitutional condition.

And my claim is much less broad than it may have seemed when I began that line of development.

But, for example, Congress now excludes aliens from entry to perform certain kinds of labor, skilled or unskilled, unless they get a certification from the Secretary of Labor that they are not taking away a job of an American citizen, and if an alien violates that, I am sure he may be deported.

That is the kind of condition I am talking about that could be attached to the shore and, therefore, I think this kind of condition about not seeking federal employment could be attached at the shore, but that is not essential to my argument because in any case the federal power to admit or to exclude or to deport is plenary, and is necessarily intertwined with decisions about the alien’s rights and obligations while he is in this country.

There is no way the two can be separated.

Potter Stewart:

Well, I think you could certainly separate them by simply not going so far as you do in saying that Congress’ power has to do with the exclusion and deportation of aliens and not with all these other things you have talked about, and not with what it is involved in this case that this does not have to do with exclusion or deportation.

Robert H. Bork:

Well Mr. Justice Stewart, again, what I meant by the fact that they are inevitably intertwined, I think it is right and I think it is right not because of a legal point but simply because Congress’ decision about how many people to admit will necessarily be affected by the power they have over aliens here, so that the less power Congress has to classify is to alienage in this country.

That may affect, indeed in some cases will affect, the Congress’ decision about time for naturalization, degree of numbers entering, and so forth.

And it is because it is intertwined I think that historically we have viewed Congress as having such power over aliens in this country.

Now, Congress has been very liberal in its provisions for aliens but I think that there is absolutely no constitutional necessity that the package of rights and obligations that they provide for aliens be of equal value to the package possessed by citizens.

And I think, to begin now to require Congress or to take away from Congress effectively by applying this compelling governmental interest test would be to take away from Congress almost all its power in this field, and I think that would be a constitutional innovation for which I can find no warrant in the text or in the history or indeed in the policy of the Constitution, and that is why I say I think the only fully satisfactory formulation of the law, with respect to resident aliens, is that it protects aliens as persons but not in their status as aliens.

I think that is a logical answer to this case, but I would like to move on to the — if this Court disagrees and thinks that the equal protection analysis is, in some degree, relevant, as we have discussed, there are of course two degrees of severity with which that analysis applies.

And I think the proper test here, because of the federal power in this field, is at most the rational basis test, anything more would take Congress almost out of the game.

I think in the context of a federal case involving a federal power, it is appropriate to note that alienage is not, like race or sex, an immutable characteristic.

The disability imposed by this regulation is temporary and is limited.

Naturalization and the privileges of citizenship are available in five years or three years if the alien marries a citizen.

Now in fact, the other appropriateness of calling alienage a suspect category in this case is demonstrated by a fact to which I have been informed by the Immigration and Naturalization Service, and that is that two of the four respondents in this case, two of the four, have now applied for and received citizenship.

All four of them are eligible the last time this case was argued.

In fact, Mow Sun Wong, the lead plaintiff, I am informed, was naturalized on January 7, 1975 which was five days before this case was argued last term, and Mr. Mok was naturalized in September 16, 1975.

Now, the fact that they can choose, all of them can choose to be citizens, and two of the respondents have acquired citizenship and all of the rights that go with it, seems to me to illustrate dramatically how unrealistic it is to speed of aliens in a federal context as a suspect classification whose rights must be protected because they are persons who are discriminated against — as persons who are discriminated against on grounds of race.

They can move out of the category easily.

Two of the four respondents here have.

I trust, if the other remaining two do become citizens before this case is decided, counsel of respondents will tell us, will tell the Court — but there is simply no reality to the claim of suspect classification.

Now, turning to the rational relation test just very briefly, I want to say this.

If this regulation must pass the national relation test, I think it does so quite easily, and I will mention just three relationships it has to a permissible governmental purpose.

In the first place, it offers an inducement for resident aliens to acquire knowledge of this country, our language, something of our government to proclaim allegiance and to become citizens, and I think Congress may legitimately wish to induce aliens living here to integrate themselves into our national life and our political community by becoming citizens.

Robert H. Bork:

One of the respondents, as we discussed last time, has now been here for over 29 years and has not troubled to apply for citizenship, and I see no reason why Congress may not have a policy to induce such a person to declare that integration in our political community that an application for on the receipt of citizenship implies and shows.

I do not think this is a matter to be taken lightly.

It is a force, an actual force and a symbolic force with some importance making for the cohesion of the political community to which we belong.

There was, I think last time we discussed this case, some mention of xenophobia.

I do not think that is involved here at all.

This country traditionally and today is more hospitable to aliens and makes naturalization easier than most.

If xenophobia were involved, Congress would simply bar all aliens from our shores.

This legislative and presidential purpose alone, I think, that of integrating people into the national political community and strengthening the cohesion of that community symbolically and actually I think is sufficient to justify the regulation.

But if I were to make another point, I would say that there is an administrative burden.

Obviously, aliens may be kept from some kinds of positions.

Obviously, aliens may be kept from even menial positions in some kinds of federal facilities.

Obviously, it is more difficult to check an alien’s background if he has not been here some sufficient period of time to establish a record in this country, I take that the government is entitled, as suggested in other cases recently, to make a broad rule to take care of administrative difficulties of that kind and not have to follow aliens to make sure they are not transferred to the wrong place to keep reclassifying jobs as situation changes.

And finally, I would suggest that in the federal context it is important to note and legitimate to note that the federal payroll has become an important means for implementing social policies.

Federal affirmative hiring programs that helped to counterbalance discrimination of the private sector, and I think Congress may wish to maximize the effectiveness of the federal payroll in this function by confining it to citizens.

None of the three objectives I have mentioned is impermissible; none of them I think is able.

Each of them bares a rational relation to the regulation of the Commission, which means the regulation does not offend the equal protection principle of the Fifth Amendment, and we ask that the judgment of the Court of Appeals be reversed.

Warren E. Burger:

Thank you Mr. Solicitor General.

Mr. Steinman.

Edward H. Steinman:

Mr. Chief Justice and may it please the Court.

The Government today, as it has done in the past, is trying to paint this case for what it is not.

The Government is trying to paint this case as one involving plenary power of Congress.

This case does not although, as we shall argue later, if it does, the Government’s actions are not immune from constitutional strictures.

The plenary power of Congress stands over this area, which we are discussing, stems from the Constitution, Article 1 Section 8 Clause 4.

The only words in the Constitution are naturalization.

Congress has power over naturalization.

This Court, in cases as recent as Sugarman and Griffiths, has interpreted that to mean Congress has plenary power over immigration and naturalization and, as it is pointed out today, immigration connotes entry to this country, deportation, and naturalization.

Issues where national security, foreign affairs, and this country’s sovereignty are inevitably intertwined, that is not involved today.

Warren E. Burger:

What would be your answer to the hypothetical about the power of Congress to enact the statute that is required aliens A – to learn the language of the country so that they can pass the test within five years and apply for citizenship within five years or B – deported at the end of that time?

Edward H. Steinman:

Naturally, I already have the language requirement to be a citizen, Your Honor.

I think that if Congress is dealing in areas as naturalization and emphasize to Congress, as Mr. Justice Stevens says, we do not have even a statue today really dealing with aliens.

Edward H. Steinman:

But if Congress was acting in regard to naturalization that would be a clear indication that it was exercised its plenary power and in that area, this Court’s role is not eliminated but the test is quite different.

I think the Court then gives far greater deference.

The notion that somehow this case is going to lead to this Court automatically striking down 200 statutes is just not correct.

First of all, many of those statutes involve appointed officials and I think that aliens may have difficulty raised in standing.

Many of those statutes only involve a mere few people and not the millions involved here.

Most importantly, many of those statutes involved issues of national affairs, security, the sovereignty of this country, and regardless of what test this Court utilizes, whether this Court talks about the status of aliens, suspect class, whether this Court talks about conditions not being rationally related, whether this Court talks about presumptions being irrebuttable or not.

The fact is this Government surely has the right in certain circumstances, clear precise tailored circumstances, not to allow aliens to do certain things.

The problem in this case, of course, as the problem in other cases this Court has dealt with, is the total blanket exclusion, and one of the interesting points, which Your Honor mentioned, is that the Government has explicitly in other areas and the Atomic Energy Commission example, Your Honors, in the statute.

It is noted at Page 84 and 72 of the Government’s brief, the Government in areas involving the essence of national security, the Atomic Energy Commission, the Department of Defense, NASA, highest officials in the Executive Branch, has, by statute, allowed aliens to work in those departments.

Again, in example of tailoring, what I do want to emphasize is that this case does not involve immigration and does not involve plenary power.

What it involves is a blanket exclusion against individuals who have been lawfully admitted and, if I may quote to this Court the decision of this Court in 1970, “Once an alien lawfully enters and resides in this country, he becomes invested with the rights guaranteed by the Constitution to all people within our borders.”

These rights are not alienable and guard against any encroachment by either federal or state authority.

The decision is Hellenic Lines versus Rhoditis.

It appears at Page 39 of our brief.

One of the problems that I have with the Solicitor General’s argument is that he concedes to this Court that a certain particular rights in the Constitution apply to resident aliens.

He conceded today that the First Amendment applies, that due process applies.

As Mr. Justice Marshall asked, then why does not equal protection apply?

Why is the Government allowed to be selective?

The fact that equal protection may involve inherent classification is not an answer.

Consider a hypothetical of Congress saying that aliens do not have First Amendment rights.

I submit to you that that is a classification between aliens and citizens, but, as the Solicitor General conceded today, under the Court’s decision resident aliens clearly have First Amendment rights.

I think it is important to emphasize in this case, the facts that what these people were seeking.

And, by the way, Your Honor, I did not know last year that one of my clients had become a citizen and I was aware that another had, but it is very clear from this Court’s decisions that one does not have to be a citizen to take advantage of constitutional rights.

Mr. Justice Powell in the Griffiths case recognized that the person in that case chose not to exercise the right to be a citizen.

In Sugarman versus Dougall, two of the four named appellees had been here long enough to qualify.

In Graham versus Richardson, Mrs. Graham had been here much longer than the requisite period of time to become a citizen.

This Court did not require the individuals there to exercise that option; this Court should not require it here.

What my clients were seeking was to work as a janitor, a file clerk, loading and unloading mail at the Post Office, and as an evaluator of educational programs.

One of the ironies of course is that three of them at one time worked for the Federal Government, two in the California State Program which paid their salaries, one respondent Louie, who inadvertently got a job at the Post Office.

Warren E. Burger:

But no one has questioned, that I am aware of, the power of the United States Government to hire aliens if they want to.

Warren E. Burger:

That is not involved here, is it?

Edward H. Steinman:

I point the irony because they actually got it wrong, if you will, the regulation involved here, although they did not get around to it totally and then they worked outstandingly according to the appendix, the evaluation of their supervisors, and yet, because of this blanket exclusion in the regulation not the statute, they had to leave federal employment.

And I think also it should be noted that the exclusion in the federal regulation says that to work for the Federal Government you must be a citizen or owe permanent allegiance.

Unfortunately, the Federal Government has taken the position, which I have never seen justified, that owing permanent allegiance means only individuals from American Samoa.

I point you to the government’s brief, Page 81, note 67.

I do not know why owing permanent allegiance cannot be extended to others.

For example, three of my four named plaintiffs, at the time this case had been brought, filed declarations of intent to become a citizen.

It is too bad that they had to wait five years to exercise their option to become citizens before they became open to federal employment.

What I would like to emphasize to this Court is that, given the nature of the jobs that they sought not involving natural security, given that they had performed outstandingly, there is no justification to exclude them.

Clearly, the Court below relied on compelling interest.

We, as Mr. Justice Powell indicated in the Griffiths case, we are not concerned with labels, whether this Court calls it overriding interest, an important interest, compelling interest, whether this Court uses the rational relationship test, whether this Court uses irrebuttable presumption, because clearly this regulation creates an irrebuttable presumption.

We are concerned with the fact that aliens, solely because of their status, are excluded from federal employment.

Mr. Bork said that in regard to Federal Government aliens are not a suspect classification.

I submit that they strongly are.

This Court has said continually that aliens are inherently suspect; they are an example of a discreet and insular minority for whom such heightened judicial solicitude is appropriate from Graham and Sugarman.

They are inherently suspect even if it is the Federal Government.

They are examples of discreet and insular minorities even to the Federal Government.

The fact that the disability is not one that is long, the fact that these appellees can become citizens is not relevant.

It was not relevant to this Court in Graham; it was not relevant in Sugarman; it was not relevant in Griffiths.

The point is that the suspect classification remains the same.

What is different in this case is the interest which the Government can assert.

That is why the lower court did not say that Sugarman and Graham were dispositive.

It found them helpful but not squarely controlling.

What one must do is analyze the interests that are involved.

As we submit, the Government must be required to show the strongest possible interest, but even if you do not require that, even if you use the traditional rational relationship test, I submit to you that the rationales offered by the Government are very, very weak.

For example, the Government says that one of the rationales is that we want to induce aliens to become citizens.

Well, first of all, there are numerous statutes which allow non-citizens to work for the Federal Government including the most sensitive positions.

Clearly, those are not inducive to become citizens.

Warren E. Burger:

But those statutory exceptions are for the benefit of the United States’ own interests, are they not?

That is, if we want to hire or the United States want to hire Wernher Von Braun or other scientist, the United States surely has plenary power to waive these considerations, do they not?

Edward H. Steinman:

I totally agree, but, of course, there are no facts in this case that show it was in Congress’ mind.

Since the statute is silent, I do not know if we can say that was in Congress’ mind but there are no facts to say what was on the mind of the Civil Service Commission that the reason for the regulation was to induce citizenship.

Obviously, one of the ways this Court could have answered that in Sugarman versus Dougall was to say that the states by having requirements that to work with the State Civil Service, you must be a citizen would be enhancing the congressional role in inducing citizenship.

Thurgood Marshall:

(Inaudible) between the state and the Federal Government?

Edward H. Steinman:

I agree with you.

Thurgood Marshall:

I assume you agree.

Edward H. Steinman:

I agree that there is a difference, but as this Court stated last term, if I may quote directly from Weinberger v. Wiesenfeld at 95 Supreme Court 1228 Note 2, “this Court’s approach to the Fifth Amendment Equal Protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”

Thurgood Marshall:

Was that a case of immigrant alien?

Edward H. Steinman:

No, it is involved in the Federal Government.

Thurgood Marshall:

That points an alien in a different category?

Edward H. Steinman:

Well, I think that aliens in a different category in regard to what interest the government is allowed to assert.

Thurgood Marshall:

They are in a different category.

Edward H. Steinman:

In regard to Federal Government.

Thurgood Marshall:

Period.

Edward H. Steinman:

I respectfully disagree, Your Honor.

Thurgood Marshall:

Well, I mean aliens cannot be excluded from this country but you cannot exclude an American-born from this country.

Edward H. Steinman:

If you were talking about issues of entry, naturalization, deportation, then I do not disagree with you of course.

Thurgood Marshall:

Once you come in the country, you are still an alien until you become a citizen.

Edward H. Steinman:

Right and we are —

Thurgood Marshall:

— and there is a difference between a resident alien and a citizen.

Edward H. Steinman:

There are, clearly, differences. Citizens, of course, are not subject to requirements of entry.

Citizens are not subject to naturalization or deportation.

Any congressional law would say that “because you are a citizen, you cannot hold a federal job” would be struck down automatically.

What we are suggesting here is that when the Federal Government is dealing with resident aliens, it has many powers, but its powers must be tested by the principles of this Court and whether those principles require strong compelling interest, rational relationships, presumptions that are not irrebuttable, aliens are deserving the protections carved under the Fifth Amendment.

I totally agree with you, Your Honor that aliens are and have been treated differently than citizens.

One of the things that we are not going to do in this case if we prevail is to wipe out the distinction between citizens and aliens.

Warren E. Burger:

Do you think it would have helped or would it help this regulation of the Civil Service Commission if, as Congress often does, recited a series of preambles consideration for enacting the regulation.

One for example, that it wanted to encourage people to apply promptly for citizenship; two, that it intended to reserve federal employment for American citizens, because, at the present time, studies have shown that there are 10 or 11 illegal aliens in the United States and in addition to many aliens legally in the United States; and third, that Federal Government Programs of Affirmative Action to remedy past discrimination will be served by limiting federal employment to naturalized or native-born citizens.

Would that take care of the flaws you see in this regulation?

Edward H. Steinman:

Well, I do not think it could take out the flaws but it would purely aid our understanding of what Congress is doing.

Edward H. Steinman:

I would not concede your —

Warren E. Burger:

I am going to your point that Congress has not done this.

Edward H. Steinman:

Right.

Warren E. Burger:

The Civil Service Commission has done it.

Edward H. Steinman:

I still emphasize that the proper test would not be rational relationship, but if that test were applied, then I think that some of the reasons articulated by Your Honor would not be sufficient.

For example, wanting to keep federal jobs only for citizens, that smacks up the Special Public Interest Doctrine which this Court has consistently struck down the last 10 years.

Wanting to induce people to become citizens, I would think that that might be partly closer to the process of naturalization, and if that would be deemed by this Court to be Congress exercising its power of naturalization, then I would concede in that situation plenary power applies and this Court would probably give a far greater deference to Congress’ decision.

Unfortunately, we have no reasons offered in this case.

We have no reasons that would at all justify even under the Court’s minimal test excluding millions of resident aliens solely because of their status from seeking all types of federal jobs.

The Congress has immutable reasons that it could offer why aliens should not hold certain types of employment, issues of national security or issues of foreign affairs.

As this Court has pointed out in Sugarman, government has the right to require citizenship to vote, to hold elective office, to hold important offices, to hold offices where policy making and executive making decisions are made.

Those rights would continue after this case.

To the extent that Congress exercises its rights, it will make sure that certain jobs only go to citizens.

My clients are dealing unfortunately with the blanket umbrella.

They cannot even show that they are competent; they cannot even show that they make a good mail clerk or a good janitor.

They are foreclosed at the door.

John Paul Stevens:

Mr. Steinman, may I interrupt for a minute.

I am not completely clear on your answer to the Solicitor General’s argument that the incentive to become a citizen is a rational basis for a rule such as this.

I am not sure whether you are saying that that is not the real reason and we do not know what the real reason is or are you saying even if it could be demonstrated that that is why the regulation is adapted, it would not be a valid reason?

Edward H. Steinman:

Well, again, it has not been stated here and under a stricter test in rational relationship would not be valid.

Under the rational relationship test, I would argue clearly that Congress, when it is touching upon issues of naturalization inducements to be a citizen, has far greater rights and can assert interest which this Court should give greater deference to.

I think one of the problems with the Congress articulating that rationale, Your Honor, is that there are so many other statutes, there are so many areas where congress does not have that similar inducement, and I would like for the Congress to explain to this Court what —

John Paul Stevens:

I am not sure I understand your answer.

Are you saying that if Congress had articulated this as its real reason, it would be a sufficient reason?

That is what you seem to be saying.

Edward H. Steinman:

Well, it would be a sufficient reason if Congress could explain, at least to me Your Honor, quite possibly not to yourself, why it is rationally related to induce citizenship for civil service positions, but not for all of the other positions where citizenship is not required.

If you are hypothetical suggest that Congress have given that reason, I think I have a much weaker case.

I would agree with you.

Potter Stewart:

That is wholly contrary to conventional Equal Protection Clause analysis, is it not?

We do not require the given reason — the ordinary approach has been to find whether or not any conceivable rational reason exists.

Potter Stewart:

It has never been the analysis to stick Congress with a reason they gave or to require them to give a reason or anything along similar lines, conventional equal people protection clause analysis.

Edward H. Steinman:

I think the conventional analysis, Your Honor, if the cases would be looked up, did not involve the situation here where we have important governmental interests that are being curtailed whether or not we use the notion of suspect classification and rational relation.

Potter Stewart:

Why is this a suspect classification when it is a classification that is in the Fourteenth Amendment of the United States that it was an amendment that came after a good deal of the national trauma, Civil War and proposal on adaption of that amendment, and that define citizenship in the United States.

It must have some meaning and it must not be quite as invidious and suspect and irrational.

Edward H. Steinman:

I think for the same reason the Court indicated in the Rodriguez case what the indicia are of a suspect classification, individuals who have suffered long disabilities, who had a history of unequal treatment, who have been in a position of political powerlessness.

In the Griffiths case, Mr. Justice Powell outlined some of the hostile treatment that resident aliens have suffered in this country.

I think these were the reasons that led this Court in the Graham case and in Sugarman to hold that, like other suspect classifications, aliens are needful of the heightened judicial solicitude.

I think that one of the reasons Court says aliens cannot vote, and they are politically powerless.

I am not saying that alien should have the right to vote.

I think, clearly, this Court has made it clear and I think under the Constitution that Congress and the states have foreclosed aliens from voting.

Potter Stewart:

Well, the Fifteenth Amendment virtually says so, does it not?

Edward H. Steinman:

I think that interpretation is correct.

We are not seeking voting; we are not seeking things that relate to the country’s sovereignty.

We are seeking jobs in Federal Civil Service and to the extent that issues of the national sovereignty, issues of loyalty and security are precedent of a federal job, then we willingly concede that aliens should not be in those positions.

The problem is that, now, we can then make no determination.

Warren E. Burger:

You do not think that the Affirmative Action Programs are sufficient consideration even though presumably every time an alien that fills a civil service position, it is one less position available for either American citizens or for American citizens perhaps subject to the Affirmative Action Program?

Edward H. Steinman:

I have two responses, one legal and one factual.

I think, legally, this Court has said that descriptions like that of favoring citizens over non-citizens is the type of Special Public Interest Doctrine which this Court went out of its way in Graham and Sugarman to repudiate.

I think factually, Your Honor, we have filed amicus briefs that show that the unemployment rate among resident aliens, unfortunately, in the San Francisco Bay area, is three to four times that of citizens and although, clearly, if a resident alien gets a job, you replace a citizen.

I think the amice shows that it is far easier for citizens, at least where I come from, to get employment than resident aliens.

But again, Congress has not said this and, as Mr. Justice Stevens recognized, Congress has not even discussed aliens.

I do not wish at this time to repeat what is in my brief concerning our non-constitutional arguments.

I think it is very clear.

I think that the Executive Order 10577, just as Mr. Justice Stevens, mentioned citizenship, but what the President requires the Civil Service Commission to do is establish criteria with relation to citizenship.

I submit that if the President thought that the criteria was going to be blanket exclusion of all non-citizens that would have been a rather vain and idle gesture.

Unfortunately, the Civil Service Commission has not established any criteria.

What they have done is issued a blanket order.

One other response I would like to make is that we are faced clearly with a policy that it has been in existence a long time, although I clearly submit to you that there is no statutory authorization.

I would hope that as this Court has recognized in the area of constitutional law, the fact that a policy has existed for a long time, does not immunize it from constitutional protections.

Likewise, the fact that the Civil Service Commission has, for many decades, foreclosed aliens from federal employment should not immunize it from the test that this Court has laid down in relation to the explicit specific authorization that Congress must give in executive or administrative body when dealing with an important interest such as at stake here.

Edward H. Steinman:

Again, I hope that my brief is adequate in that point.

Warren E. Burger:

Are you saying, Mr. Steinman, that limiting federal employment, the employment in government, to citizens of the sovereign is not an attribute of sovereignty or are you saying that, assuming that it is, there has been no action taken by the sovereign to so declare that is the national policy?

Edward H. Steinman:

I would answer to your first part, no, it is not an action of sovereignty and the reason that I would is that —

Warren E. Burger:

Not an attribute of sovereignty?

Edward H. Steinman:

Attribute, and the reason I would is that this Court has made it very clear that the plenary power deals with matters of entry, naturalization, and deportation.

As the quotation I read in the 1970 case of Hellenic versus Rhoditis to state it, “once the alien is lawfully in this country, absent naturalization issues, absent issues of deportation, the alien does get full and complete treatment of the Constitution.”

But, Your Honor, if you are correct, if it was an attribute of sovereignty then my position is —

Warren E. Burger:

I did not state it; I ask you for your —

Edward H. Steinman:

Well, if your hypothetical is correct, excuse me, that it was an attribution of sovereignty, then I would submit that the fact that Congress’ plenary powers are involved does not mean that this Court gives an absolute okay to what is going on.

This Court still has a role to play.

Our brief annunciates the numerous cases using the war powers where this Court has said “the talismanic incantation of a plenary power cannot immunize the Congress’ action under the Constitution.”

Clearly, though, if the plenary power is present, I would concede that the Court’s test is more deferential, but, as I stated here, I do not believe the plenary power is present.

In closing, I would like to say that the only justification or reason that really exists for the total exclusion of resident aliens from all federal employment is that they are aliens.

To state that would confess discrimination.

Hence, the petitioners are silent.

I submit that such silence can no longer immunize the constitutional violations.

As this Court has said in Graham versus Richardson that Congress does not have the power to authorize individual estates to violate the Equal Protection Clause, I would submit that when Congress is not acting in areas of deportation, naturalization, and immigration Congress itself cannot authorize its own violation of the equal protection guarantees of the Fifth Amendment.

Warren E. Burger:

But why is not a limitation of government employment to citizens an act of the government relating to naturalization?

Edward H. Steinman:

Well, I have a couple of answers.

First of all, this Congress has clearly never stated that, and I do not think it is just because it is not in Title 8 of the United States Code.

Secondly, the fact that it may be related to naturalization does not explain then why everything else is not related to naturalization, for example, a resident alien exercising his First Amendment rights.

We want to encourage resident aliens to become citizens.

Hence, we deny them for five years First Amendment rights.

This Court would not accept such an argument.

Warren E. Burger:

(Inaudible) It does not constitute an answer to my question.

Edward H. Steinman:

Well, I think that outside of the area of deportation, naturalization, and immigration where it clearly relates to that plenary power, the reason that is obvious, Your Honor, I think is that because the Constitution does treat resident aliens under the Fifth Amendment protections, that we would not tolerate saying that resident aliens does not have First Amendment rights.

That is why I say we should not tolerate that a resident alien does not have equal protection rights.

What is different, vis-à-vis the citizen, is that the governmental interest and the way those interests are balanced will be quite different for the resident alien than they are for citizens.

Thank you very much.

Warren E. Burger:

Thank you, Mr. Steinman.

Warren E. Burger:

Do you have anything further, Mr. Solicitor General?

Robert H. Bork:

Just a scattering of points, Mr. Chief Justice.

The reference has been made to whether or not Congress intended this.

I would like to refer you to our main — the Court to our main brief, Page 71 and following pages.

It must be quite plain, for example, Footnote 63 on page 78, Senator Holly said, when he was heading up this Commission, “It would be among the duties of the Commission to devise rules for conducting examinations.

There will be requirements.

Anybody can think of a few in a moment.

The applicant must be a citizen of the United States” and on and on in other quotes from Congress.

It is quite clear that Congress intended this and it is also quite clear that Congress need not, in intending such a classification, make a statement of their rational purpose which is satisfactory to respondents’ counsel.

Warren E. Burger:

I, for some reason, cannot seem to find it. Page 71 of your main brief?

Robert H. Bork:

Of our initial brief, Your Honor, it is Page 78, Footnote 63.

I just cited that because it is an extraordinary clear statement by Senator Holly that Congress assumed citizenship in this area as, indeed, everybody has.

On the question of the —

John Paul Stevens:

Mr. Solicitor General, they did assume it but they did not explicitly require it in the statute.

Robert H. Bork:

The statute does not say there must be citizenship.

Congress assumed apparently that anybody carrying that out would naturally require citizenship and Congress has been aware of this practice over the years and in legislative enlightenment and in the public works statute, Public Works Act, which we discuss in Page 83 of our brief, they have been saying that salaries may not be paid to aliens in this country with certain exemptions if they work for the government.

So that this is the congressional policy; there is no doubt about that, as well as a presidential policy, which is why I said the policy came to us with a combined weight of the Congress and the presidents.

But, on the question of the suspect classification, Pardon me.

On the question of the suspect classification, I would like to direct the Court’s attention to Johnson against Robison decided in 1974 in which conscientious objectors who, one assumes, will always have the record of a conscientious objectors has held, conscientious objectors are held not to be a suspect classification, and I would think that if that is the case then aliens who can leave the category certainly do not qualify.

In this case, essentially, we are being told by respondents’ counsel that they do not like any imposition of obligations upon aliens whichever way you do it, because we are told that this statute or regulation is overbroad.

We are required to make individualized determinations, and the Weinberger against Salfi suggests that we are not required if there is good reason not to require us to expend resources to make individualized determinations.

But, on the other hand, it is held against us by respondents’ counsel that in some areas of government the government finds it useful to make individualized determinations and to hire aliens, so that we are attacked both over breadth and under breadth.

I submit that this is a traditional power and clearly a constitutional power of government.

There is no inequity involved and it would be extraordinary to change a constitutional power in practice of this sort for these reasons at this time.

Warren E. Burger:

Thank you, Mr. Solicitor General.

Thank you, Gentlemen.

The case is submitted.