HAMPTON v. MOW SUN WONG

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Argument of Bork

Chief Justice Warren E. Burger: We'll hear arguments next in 73-1596, Hampton against Mow Sun Wong.

Mr. Solicitor General, I think you may proceed.

Mr. Bork: Mr. Chief Justice, may it please the Court.

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

Respondents are four aliens who have been denied employment in the federal competitive civil service by a reason of the Commissions -- Civil Service Commission's regulation requiring that applicants from most positions be either citizens of United States or persons owing it allegiance.

Respondents filed the class action challenging the regulation on constitutional on other grounds.

The District Court on the government's motion dismissed the action for failure to state a claim.

The Court of Appeals reversed holding that the regulation violates the Equal Protection component of the Due Process Clause of the Fifth Amendment.

The Court said that alienage is a suspect to classification so that the compelling governmental interest must be shown they justified treating aliens differently than citizens with respect to federal employment.

The Court of Appeals relied we believed mistakenly on the rational of this Court's decisions in Sugarman versus Dougall and Graham against Richardson.

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

It is our contention that the Civil Service Commission's regulation is a valid exercise in the national power and I reached that result in alternative ways.

My first submission is that the Equal Protection principle has no application to the federal governments dealing with aliens as aliens.

It has application of course to the other capacities.

I wish to be quite clear about this.

The Equal Protection principle applies to persons who are aliens and it protects them from a variety of inequalities such as inequalities imposed on the grounds of their race or religion.

But the Equal Protection principle does not apply we think to a pure alienage classification such as that before us.

Justice Potter Stewart: Is the Equal Protection principle of the Fifth Amendment Due Process Clause, in other words, when is the federal government that's making the classification?

Mr. Bork: That is entirely correct Mr. Justice Stewart when it is valid.

Everything I am talking about now is in the federal context and I am at some pains to point out what apparently has not been fully understood by respondents that we are not saying that the Equal Protection principle does not apply against the federal government to a person who is an alien and of course it does.

We're only saying it does not apply to in his capacity as alien.

It may apply to his capacity whether it's race or religion or sex --

Justice Potter Stewart: Or age?

Mr. Bork: -- or age or some any other way in which the Equal Protection principle applies and of course other constitutional protection supply to aliens.

So, we're not contending any such to make any broad claim.

The reason we think that the Equal Protection component of the Due Process Clause of the Fifth Amendment can apply it's because of the plenary powers of the national sovereign with respect to alienage.

Our Constitution does not forbid alienage classifications.

On the contrary, the Constitution requires the federal government though not the states to employ alienage classifications.

Now, my alternative submission will be that at most the Equal Protection Clause principle has a very attenuated application to distinctions between citizens and aliens when those distinctions are made by the federal government.

To employ the compelling governmental interest standard as the Court of Appeals did is I think effectively to destroy the distinction between citizens and aliens contained in the Constitution or much of it and certainly to destroy much of the great mass of legislation which distinguishes between citizens and aliens.

Some indication of that massive legislation is contained in the appendix to the government's brief.

For the federal government, alienage cannot be a suspect classification because the Constitution gives the federal government the power and indeed the duty to make that classification and to legislate with respect to it.

And that's a power to duty of course the states do not have.

This necessarily means, I think that if the Equal Protection principle has any application here and I think it does not.

It is satisfied by meeting the rational basis test and I will argue later that the challenge regulation here clearly meets the rational basis test.

But first I want to argue that we ought not to apply the Equal Protection test at all in this case.

We have here an exercise by the Civil Service Commission of the delegated combined powers of the Congress and the President.

And those powers of course relate to a naturalization foreign policy national defense, treaty making and so forth.

And in fact, what has been exercised here it seems to me a power inherent in the idea of the sovereignty of a nation state, the power to distinguish between those who owe it allegiance and those who do not.

And so obviously is this power to differentiate between those who owe allegiance and those who do not an attribute of sovereignty that the practice and question here is followed by every nation in the world.

And so obviously as this is an attribute of sovereignty that it is been exercised and gone on contested for more than 90 years which fact I think give to this regulation all the support.

The long continued and universally accepted usage can confer.

This factor seemed to me to make this case completely different from Sugarman versus Dougall and Graham against Richardson.

The states are not independent sovereigns; they have no power to regulate naturalization, no power to conduct foreign of affairs, and decide what's required by national defense.

No power to make treaties.

Nothing in the Constitution gives them a right explicitly granted to the federal government of treating alienage as a proper classification for legislation.

If alienage is a suspect classification for state law, it is constitutionally made a proper and indeed inevitable classification for federal law.

Justice Thurgood Marshall: Mr. Solicitor General, did the Congress passed and not giving the states the right to discriminate against alien?

Mr. Bork: No, I think not Mr. Justice Marshall because that would be if Congress passed a law in giving the states the power what they wished to do with respect to aliens that would not be a federal policy with respect to aliens.

That would be simply turning over to state policy a subject that does not belong to state policy.

Justice Thurgood Marshall: So, it is a limitation on Congress' authority over alien?

Mr. Bork: Oh!

There are many limitations Mr. Justice Marshall over the Congress' power over aliens not only may it not turn the power over to the states but must exercise itself as a national power but obviously --

Justice Thurgood Marshall: Could Congress authorize the Civil Service Commission to pay the aliens less than they pay citizens?

Mr. Bork: I would think that they could Mr. Justice Marshall.

Justice Thurgood Marshall: They could?

Mr. Bork: I would think that they could.

I --

Justice Thurgood Marshall: Well, could Congress pass a law and it says, “You pay female aliens less than you pay other?”

Mr. Bork: No, I think not Mr. Justice Marshall.

Justice Thurgood Marshall: Why?

Mr. Bork: Whereas my point the equal protection principle does apply to all persons.

And therefore, it applies to persons who also happened to be aliens.

I am not contesting that and if an alien is discriminated against the grounds of its race or sex or age then he will be treated by the equal protection principle just as a citizen would be.

I'm merely suggesting, arguing that the alienage classification is not one to which the equal protection principle applies.

That is when Congress legislates as to all aliens equal protection does not apply when it legislates as to aliens who are women it does apply.

Justice Thurgood Marshall: But it say that the work loss of the United States do not apply to alien?

Mr. Bork: I think it can, Mr. Justice Marshall.

Indeed, we have a variety --

Justice Thurgood Marshall: It's such a little niche that they do whatever they want on employment but anything else.

Mr. Bork: I haven't thought of it that way and I don't believe Your Honor that I'm dividing it by employment as against something else.

I haven't thought of that way and of course much of the legislation about aliens is not legislation about employment it's by a variety --

Justice Thurgood Marshall: I know as the first case it was about employment through acts, wasn't it?

Mr. Bork: Yes, that was a state regulation upon employment.

I think we've never had a --

Justice Thurgood Marshall: Is there any case before that and had anybody else in a suspect classification when the alien is the first one to made suspect?

Mr. Bork: Well, if the language was used before that Mr. Justice Marshall but it seems to me that we have always known from the inception of the Fourteenth Amendment that race was the primary suspect classification in our Constitution.

And I don't know but when the rhetoric of suspect classification began, I do not know.

And when that particular formulation of the problem began, I do not know.

But I think that the distinction between the state and the federal is shown by it when you look the -- when you move from state law to federal law you also move from cases like Sugarman and Graham to cases like Harisiades against Shaughnessy, Kleindienst against Mandel and so forth; cases that uphold the most severe kinds of restrictions upon aliens.

And from the early cases on we have known and this Court said that Congress has power in this field and in fact it has as much or more power in this field that it has in other legislative fields.

There's no place for Congress' power is more complete than in this one.

Now, --

Justice Potter Stewart: That language -- that not only language but that those thoughts you find basically in immigration and deportation case?

Mr. Bork: That's entirely correct Mr. Justice Stewart.

And I'm fully aware of course that the power of Congress is at its strongest when it's choosing to exclude or class of immigrants or to deport.

But I think that decision to admit or exclude is necessarily intertwined with decisions about alien's rights and obligations here.

For one thing, this case could be recast if Congress so desired.

I would suppose to say that a condition of entry in the United States is not apply for federal employment until you have been naturalized and if we would then have the same thing.

In fact, I'm not sure that for that reason this regulation doesn't have all the force that law would have.

For another thing, decisions about how many to admit under what terms and so forth and the standard for naturalization are necessarily influenced by Congress ability to control the package of rights and obligations that the alien has while here.

And again, we see that in the Constitution itself indeed in the Fourteenth Amendment which gives birth to the Equal Protection principle in our constitutional jurisprudence, there is a distinction between aliens and citizens which is a distinction made as to aliens and citizens in this country not for purposes of immigration.

And I will leave the discussion of that distinction to our brief and merely point out that Congress has adjusted this package of rights and obligations that aliens and citizens have again and again throughout our history.

And I think that now to begin to apply for the first time, the equal protection principle in the way that the respondents asked would severely hamper Congress' power, destroy it in many respects.

And it would be a major constitutional innovation without any warrant in the constitutional text, in its history or indeed in policy.

There is for that reason I think only one fully satisfactory formulation of the law with respect to resident aliens.

And I would say is this and I think I've said it before but I will stress it as I leave the point.

The equal protection principle applies to persons who also are aliens but it does not apply to them in their status as alien.”

In any other status, they occupy the equal protection principle may apply to them which is to say that Congress may not impose burdens upon resident aliens because they're white or black or yellow or because of their religion but it may differentiate between aliens and citizens.

Congress may not deprive aliens of specific rights guaranteed elsewhere in the Constitution we're not arguing that it may.

It obviously may not prison an alien without due process, may not subject them to cruel and unusual punishment and so forth.

But the one principle which is manifestly inappropriate when alien -- when the government -- the federal government addresses alienage as a subject is equal protection because inherent the Constitution, inherent the idea of nationhood is a fundamental inequality between citizens and aliens.

Chief Justice Warren E. Burger: What about the right to vote Mr. Solicitor General?

Mr. Bork: Well, I would think that would be one of the last rights that could be opened to aliens Mr. Chief Justice.

That certainly is --

Chief Justice Warren E. Burger: So it can be denied.

It is denied, isn't it?

Mr. Bork: It is denied indeed.

Justice Potter Stewart: Well, that's up to states pretty much, isn't it?

Mr. Bork: Yes, it is up to the states --

Justice Potter Stewart: Have to involve the federal government?

Mr. Bork: Well, I don't think Mr. Justice Stewart.

Justice Potter Stewart: Have some states in the past have allowed aliens to vote?

Mr. Bork: There have been place where aliens have been allowed to vote and I think it might be a delicate constitutional question which I hope I need not embark on here whether the federal government would have in that circumstance if the qualifications --

Justice Potter Stewart: The power to overrule the judgment state --

Mr. Bork: Power to overrule.

Justice Potter Stewart: -- has never exercised it?

Mr. Bork: No.

Justice Potter Stewart: In this area?

Mr. Bork: That's right Mr. Justice Stewart and I think I would reserve that as a possibility but there's no bearing I think upon our present inquiry.

And I think this is the logical answer to our case but should this Court determine that the Equal Protection principle is applicable.

I continue nonetheless to believe that this Commission regulation is valid.

Under the current doctrinal formulation, the equal protection applies with one of two degrees of severity.

The federal power I've just sketched means I think that the strict scrutiny mode of analysis or the test of compelling governmental interest is plainly inappropriate to this subject matter.

To apply them is to effectively destroy Congress' and the Presidents' undoubted powers in this field.

And it is destroy I think very nearly destroy without any warrant the distinction between citizen and alien.

In this context, the federal power at least, it seems to me appropriate to note that alienage is not by any means a permanent or a mutable characteristic like race or sex.

The disability imposed by this Commission Regulation is both temporary and it is quite limited.

Naturalization and the privileges of citizenship are available in five years to an alien and then three, if the alien marries a citizen.

Now, each of the respondents in this case has now have been here not when they started the case but now not been here long enough to qualify for citizenship so far as I know the date none of them is applied.

One respondent have been here for 28 years and has not troubled to apply for a citizenship and I fail to see why in cases like that benefit should be obtained through a lawsuit rather than to a proclamation of allegiance.

Justice Potter Stewart: Now, in -- as far as that point goes the Court wasn't very much moved by that argument in the Griffiths case was it where it was pretty clear that alien did cite it.

She didn't ever want to become American citizens for reasons of her own?

Mr. Bork: That is quite true Mr. Justice Stewart.

The Griffiths case of course was again state restriction.

Justice Potter Stewart: I know but I'm talking about the arguments you're now making.

Mr. Bork: Well, I would think if there is any place in our policy and in our law where we are entitled to say a benefit is available if you choose to proclaim allegiance but it is not available otherwise it would be precisely in the area of federal employment.

For --

Justice Potter Stewart: But this regulation makes no distinction between aliens who were long time aliens and aliens who --

Mr. Bork: No, it does not.

Justice Potter Stewart: -- hopeless promptly as possible to become citizens, does it?

Mr. Bork: It does not, that is quite correct.

Justice Potter Stewart: Right.

And I don't know if -- has Mrs. Griffiths have been appointed by the federal court under the Criminal Justice Act?

Mr. Bork: I do not know Mr. Justice Stewart.

Justice Potter Stewart: Do you know if any aliens have?

Any alien lawyers?

Mr. Bork: I do not know, I don't think they're that many of them but perhaps they have.

I do not know.

But it seems to me that there's a good reason why this regulation does not distinguish between aliens who intend to become citizens and aliens who do not intend to do so and why it covers both classes of aliens.

And I think I will briefly try to explain, try to point to some of the factors that lead me to think that this regulation if it must pass a rational relationship test passes it with high mark.

And I will cite a few things this regulation does which seem to me valuable and which Congress and the President might rationally think to be viable.

At the first place, it offers an inducement for resident aliens to acquire knowledge of this country, to acquire the language, to proclaim allegiance, and to become citizens.

And it seems to me that it's quite legitimate for Congress to wish to induce aliens living here to immigrate themselves into our national life and into our political community in this process of becoming citizens.

That seems to me to be in fact a rather obvious exercise of the power to make rules to respect the naturalization.

Two, it does avoid a rather large and complex of administrative burden that will be entailed by a system in which all federal jobs were classified according to whether or not they entail any aspect of a formulation or execution of policy.

And then we had the tag --

Justice Harry A. Blackmun: Isn't that the result of Sugarman and Richardson on the state side?

Mr. Bork: It is the result on the state side Mr. Justice Blackmun.

I think it need not to be result in the federal side because as I have said because of the very strong federal power that exist in this area.

And if we come to our rational relation test rather than a compelling governmental interest test which was applied in Sugarman, then I think this reason becomes important.

It may not have been enough against the compelling governmental interest test.

I think it is if I'm correct that utmost, the rational relationship test applies here.

Because the federal government which has many, many employees means would have to tag I suppose aliens so that they were not by accident or inadvertence moot to sensitive facilities or into post that might properly be reserved for citizens if we had to meet this administrative burden.

And I suppose it will be a great deal of litigation about that.

And third, the federal payroll I think it's proper to note has become an important means for implementing solutions to economic and social problems.

Minority groups for one example have been benefited by federal act -- affirmative action hiring that helps to counterbalance some discrimination in the private sector.

And I think it might be irrational for Congress to wish to maximize the effectiveness of the federal payroll in this function by confining to it citizens.

So I offer three reasons so others could be adduced.

The inducement to apply for citizenship and to integrate one's self from the national life and indeed in the political community of this nation.

The administrative burden and the use of the federal payroll as a social implement.

None of these objectives is impermissible or evil.

Each of them bears a rational relation to the regulation promulgated by the Commission which means I think that the regulation does not offend the equal protection principle.

So, I come back at the end to where it began.

The compelling governmental interest test can hardly be used with respect to federal legislation or federal regulation that is where the federal government has so much power.

If the equal protection principle apply I think have satisfied here if it does not apply clearly, the regulation is valid and we believe that the judgment of the Court of Appeals should be reversed.

Justice Harry A. Blackmun: Mr. Solicitor General, did the federal Civil Service Regulations accord any preferential status to veterans now?

Mr. Bork: I'm not sure about veterans in general of course -- I think, yes they do.

They do, I can't give you the details of Mr. Justice Powell.

In addition to that of course, an alien who serves has his ability to become a citizen accelerated.

And there is I believe a veteran's preference but I can't give you the details of how would operates.

Justice Harry A. Blackmun: General Bork, would it be a disaster if this case and the next one were decided oppositely?

Mr. Bork: Mr. Justice Blackmun, years of predicting the sky falling and never falls in has lead to believe that very few things turn out to be unqualified disasters.

I think I can speak for myself and for the government attorney, Mrs. Shapiro, follows me in saying that infinitely preferable.

If both of these cases been cited as we asked.

Thank you.

Chief Justice Warren E. Burger: Mr. Steinman.

Argument of Edward H. Steinman

Mr. Edward H. Steinman: Mr. Chief Justice and may it please the Court.

Well, counsel for the government is suggesting that the Ninth Circuit opinion is carved out a novel constitutional argument.

His argument concerning the non-applicability of Fifth Amendment Protections to aliens when the classification is an alienage, I would submit it's the most novel of arguments.

I think it's important to understand that the four respondents in this case were initially seeking jobs that did not involve foreign affairs, did not involve national security, did not involve some of the issues of sovereignty and some of the issues of executive policymaking which was the concern to this Court in Sugarman.

Justice Byron R. White: Well, do you think that the approach necessitates striking the regulation down on its face if you sought certain jobs?

Let's assume you're right.

Why would the regulation be invalid on its face?

Mr. Edward H. Steinman: Well, I think the vice of the regulation is similar to the vice of the regulation which confronted this Court in Sugarman.

Or immediately the state case and as the lower court found and that's where a controlling.

The vice was the overbreadth that while there are clearly jobs which possibly because of --

Justice Byron R. White: I think that were construing a federal regulation here.

You don't strike ordinarily if you can narrow a regulation of the statute, you don't strike it down on its face (Voice Overlap) you don't do that with respect of state statutes or regulations.

Mr. Edward H. Steinman: I would agree that it would be obviously best not to strike on a statute but the interpretation of the regulation has been to automatically foreclose at the stage of submitting an application.

Any none -- any resident alien, I'd like to make one correction of the opening remarks.

The regulation in question says that you must be a citizen or of permanent allegiance as the government's brief at page 81, note 67 of its brief indicates.

The Government has interpreted permanent allegiance to only apply to American Samoans.

But possibly Mr. Justice White if the Government was more liberal in interpreting permanent allegiance we could say the regulation it is chosen not to do so.

One of the ironies of this case is that three of the four name respondents actually at one time work for the federal government.

Respondent Wong and respondent Mok were involved in a federal state manpower program and were placed for the general services.

Justice Byron R. White: It certainly true that there are many aliens working for the federal government are there not in other cases in NASA and --

Mr. Edward H. Steinman: The laws indicate that there are exceptions from many branches of government including Department of Defense, the Atomic Energy Commission and NASA, Department of (Voice Overlap).

Chief Justice Warren E. Burger: That's by the choice of the federal government, is it not?

Mr. Edward H. Steinman: Clearly.

Justice Byron R. White: And here we're talking about the Civil Service Commission?

Mr. Edward H. Steinman: Exactly, and the point I'm wishing to make is that these individuals performed competently and performed as the service wishes to promote the efficiency of the service while working on other programs and yet although the supervisors of the record indicates that they performed.

One performed outstandingly.

The other performed most satisfactory.

When the time came when the Government program ended, they were foreclosed totally from seeking and continuing their jobs solely under status as alien.

Mr. Justice Powell raised another issue which I'd like to addressed or touched into in the record.

He asked about veteran's preferences.

There's evidence from the record of a gentleman named Mr. Bor, it appears at the appendix page 31; it's discussed at page 6 of our brief.

Mr. Bor arrived in this country as a child.

He was dropped in the American -- into the military served for 18 months, 14 of which were in Korea; achieved the rank of Sergeant E-5, received an honorable discharge.

And yet when he left the military and try to apply just apply for job at the Postal Service to which he had been a citizen he would receive veteran's preference.

He was denied the opportunity to apply and as he states in his affidavit, “Although I'm qualified and loyal enough to serve my country for two years in the military, I'm not qualified and loyal enough to work for the post office.”

Justice Thurgood Marshall: But he didn't apply for citizenship?

Mr. Edward H. Steinman: Pardon?

Justice Thurgood Marshall: He did not apply for citizenship?

Mr. Edward H. Steinman: At that time he had not.

Three of the four name respondents in this --

Justice Thurgood Marshall: Wouldn't it be automatic if he had applied for as a veteran?

It would have been no trouble.

Mr. Edward H. Steinman: It would've been under the rule he chose not to.

Three of the four respondents in this case have filed declarations of intent to become citizen.

Obviously, the time the case was filed, they were not eligible because they have not lived here requisite number of years.

The Postal Service has now changed its regulation now that it is no longer under the umbrella of the Civil Service Commission.

It now allows noncitizens to apply on the same basis for almost all positions in the postal service.

I submit that to respond to Mr. Bork's argument that it might be administratively impossible or inconvenient to do so.

The Postal Service has more than one half million employees and yet has chosen last May to change its regulations to now allow noncitizens to apply for old most jobs.

As far as the Equal Protection Clause, clearly this Court has recognized that the Bill of Rights although not explicitly containing equal protection statements contains equal protection principles.

This Court said in the same day they issued decision in Brown versus Board of Education.

It would be unthinkable that the same Constitution would impose a lesser duty on the federal government that imposes on the state.

This Court has continued to make sure that such and unthinkable anomaly does not occur and throughout the last two decades has applied the same type of standards and the same type approaches in regard to federal discrimination that would've apply had the discrimination been practice by the state.

Last term, Mr. Justice Brennan speaking for this Court said in Johnson versus Robison, “If a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment.”

Mr. Bork however contends that the Equal Protection Clause does not apply because this case involves the federal government classifying aliens on the basis of their alienage.

Unfortunately, such statement ignores the clear holdings of this Court in the last four years.

The classifications based on alienage are inherently suspect.

Not just sometimes suspect but inherently suspect that “Aliens as a class are prime example of a discreet and insular minority for whom heightened judicial solicitude is appropriate.”

I think it's important to emphasize why this Court reached that conclusion.

This Court has described the indicia that are common to all the classes which have been deemed suspect.

In the Rodriguez case, this Court said that such heightened judicial solicitude was needed because these individuals are “saddled with such disabilities, or subjected to such a history of purposeful and equal treatment, or relegated to such a position; a political powerlessness as to command extraordinary protection from the majoritarian political process.”

Mr. Justice Powell in the Griffiths case delineated some of the historical hostility that has been heaved upon noncitizens.

The scorn, they have been treated as constitutional outcast.

This Court has recognized that most states today do not allow noncitizens to vote that they've been denied to franchise.

Likewise, the fact that noncitizens can become citizens if they wish to exercise the option given to them by Congress did not dissuade this case, this Court in other cases in Sugarman.

Two with the four appellees chose not to exercise the right to become a citizen.

Mr. Justice Powell in Griffiths, explicitly stated that Mrs. Griffiths chose not to file a declaration of intent even in Graham versus Richardson, the appellee Richardson have been in this country far long than necessary to become a citizen.

If the fact that she chose not to become a citizen also was have no important to this Court.

What I'm saying is that the classification based on alienage does not change because it's the federal government.

This Court has continued to recognize that when the federal government itself practices discrimination.

It is bound by the same standard and the same protections which have been put on the states in some more discrimination.

In the Griffiths case, Mr. Justice Powell said that the interests has been characterized but the government must show in many ways overriding, compelling, important, substantial.

I'm not worried about pigeonhole in this case, in any of those words as the Court said we attribute no particular significance to these variations in diction.

What is important is when such discrimination exists; the Government has a duty to show something more than just some rational basis.

Although, as we contend even under that more differential standard as the Ninth Circuit find in this case, the Government has not satisfied its duty.

I just like to make one remark in that area.

The test is whether or not the Government has employed means which rationally relate to some governmental purpose.

There's only one purpose in this case.

The purpose is to best promote the efficiency of the Civil Service, that's a direct quote from 5 U.S.C. 3301.

The purpose of the Civil Service system is to overcome the spoils which historically unfortunate attached the government employment.

The purpose of a Civil Service system is not to hire citizens.

This Court has long discarded the old notion of a special public interest.

The purpose is to have an efficient government and there is nothing about being a noncitizen, about being a resident alien which means that a person will not be efficient, will not be a competent employee.

Unfortunately, my clients and other resident aliens throughout the country are not even given the right to apply, are not even given the right to go through the normal investigative screening process which show whether individual is efficient for the job, to show whether the individual may be loyal.

I do not deny that sometimes the person because of his noncitizen status may not be loyal.

This Government spends millions of dollars each year and employs tens of thousands of people to check on the loyalty of citizens for certain position.

My client wanted to be treated equally in that sense.

Justice Thurgood Marshall: Well, your client they're willing to take the oath to support the Constitution of the United States and defend it?

Mr. Edward H. Steinman: To the extent --

Justice Thurgood Marshall: One of them did.

Mr. Edward H. Steinman: Three of them have.

Justice Thurgood Marshall: But I said one had certainly did.

Mr. Edward H. Steinman: Three of the --

Justice Thurgood Marshall: There is not objection on the employee direct?

Mr. Edward H. Steinman: No, the fourth has not for her own purpose but of her own religious belief and own political reasons.

And I don't think that she would sign it.

The Congress does not require in the passage on 1952.

Congress required that resident aliens come in this country signed a declaration of intent to become a citizen.

The 1952 law erased that requirement.

So the Congress itself does not do it.

I would think there probably a large percentage of resident aliens would be willing to sign that oath.

Unfortunately, the regulation and its interpretation by the Civil Service Commission preclude that possibility.

Justice Byron R. White: Would you expand on your comment that your one client refused for her own religious and political reasons.

Tell us what that means.

Mr. Edward H. Steinman: When I say, “refused” she has not chosen the option which Congress has given her.

It is not in the records.

I'm going out the record which she have told me is that she feels that she is a citizen of the world and that she doesn't feel that she owes any more or less loyalty to any country.

She chooses -- she was and her name is Ms. Lum.

She was sought by HEW to be in evaluator of education programs.

She has 15 years of teaching experience.

She has one master's degree and studied at many universities including Stanford and Seton Hall.

They asked her to apply, she couldn't.

Her point right after why did she become a -- why didn't she become a citizen.

She said initially she didn't for political reasons because it might have harmed her family in China.

Over the years she has said that she would like her status of being citizen of the world.

Congress until 1952 requires --

Justice Potter Stewart: She is a citizen in the world but what nation in fact is she a citizen?

Mr. Edward H. Steinman: I don't think that -- I think that she feels she is a resident in United States but in our conversation she has not stated that she is a citizen of anyone country.

Justice Potter Stewart: Where was she born China -- Mainland China?

Mr. Edward H. Steinman: Yes.

The other three named respondents have filed declaration of intent to become a citizen although as I said the Congress no longer requires it.

Consequence of Government has said there are even if you apply assumes the more differential test.

He says that it's satisfied by various interests to induce people to become citizens.

Well, I would assume also that we can induce people become citizens by not allowing into work for state governments.

Such a factor was raised before this Court and obviously not found dispositive.

Also, that notion of administrative burdens, I would submit that administrative burdens are both legally and factually relevant.

This Court has very strongly said that the Constitution requires higher values and speed and efficiency that “this has been a Frontiero case decided in 1973.”

There could be no doubt that an administrative convenience is not a shibboleth.

The mere recitation of which dictates the constitutionality.

I would also point this Court to page 28 of our brief a long quote from Mr. Justice Black in Reid versus Covert where he said that “to allow an argument administrative convenience is a very dangerous doctrine and if allowed to flourish would destroy the basis of a written Constitution and undermine the basis of our Government.

I also submit that administrative inconvenience is factually irrelevant.

Although, there are millions of jobs in the federal Civil Service very few involved the type of policymaking issues, involved the type of responsibilities which this Court recognize in Sugarman might best be reserved to citizens.

I also submit that the fact that the U.S. Postal Service which employs more than a half million people itself has found that it could change its regulations is another example that administrative inconvenience even if legally relevant which we do not agree.

Chief Justice Warren E. Burger: Well, aren't we talking about constitutional power here if the government wanted to in any particular department assuming that Mr. Bork, the Solicitor General's position is entirely correct they can waive it with respect to any particular department or employment can?

Mr. Edward H. Steinman: That's right.

They have chosen not to.

They have chosen to issue a blanket exclusion.

Chief Justice Warren E. Burger: Now, what about your argument on discrimination.

Do we not discriminate against aliens when we classify them in a way that they must apply for citizenship so that the very denial of citizenship benefits until they take some step which native born American need not take it is a form of discrimination, is it not?

Mr. Edward H. Steinman: Yes, I think the answer though is stems -- well, the problem which you raised tends some with confusion.

Plenary power of the United States Government is not over aliens last in Sugarman at page 646.

This Court said, “Its comprehensive power over immigration naturalization.”

And to the extent that decisions are made concerning who enters this country; the conditions of naturalization whom who is deported that is to what the plenary power addresses itself.

But as this Court stated in 1970 and I quote it's at page 39 of the brief but the case is Hellenic Lines versus Rhodetis, this is a quote.

“The Bills of Rights is a futile authority for the alien seeking admission for the first time to these shores.

But 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 border.”

And I will skip a few sentences and go on to the last.

“The Constitution extends an alien of privileges to all persons and guards against any encroachment on those rights by federal or state authority.

The plenary power argument --

Chief Justice Warren E. Burger: And what kind of a case was that?

Mr. Edward H. Steinman: This was a case concerning benefits under the Jones Act for seaman but the argument was made that because the person was only a lawfully resident alien he was not entitled to certain benefits.

Chief Justice Warren E. Burger: Why do you have to say about Mr. -- what the Solicitor General's point but Congress would have plenary power to attach conditions to the original entry?

Mr. Edward H. Steinman: I would think that is probably correct.

I would think I would also make this Court aware that Congress in 1965 by statute took away any power that it might have or it need not do so to discriminate against incoming aliens the basis of race free to religion.

And according to my research and according to the handbook immigration law of Mr. Gordon and Mr. Rosenfeld there are currently only two laws on the books which condition of course any condition an alien is entering.

One is a bond for those who might become dependent in the welfare system.

The other relates to aliens who might otherwise be inadmissible.

I agree with you that under the decisions of this Court although I might personally not like that.

Congress can attach any conditions it wishes on those who have not yet entered the country.

One of the key factors is whether or not someone is lawfully here.

Chief Justice Warren E. Burger: In putting excluding them entirely?

Mr. Edward H. Steinman: I would think so.

I would also think that Congress could even say that you enter the country in a condition you can't work for the state or federal -- for the state government.

The issue in this case involves people who are lawfully here.

Justice William H. Rehnquist: To the extent Mr. Steinman you say Congress has plenary power over conditions of naturalization to the extent your argument were followed here.

I take it Congress would not have a great deal to do in that area.

There's very little it can do to distinguish between people who are naturalized and people who are simply resident aliens and haven't sought naturalization.

Mr. Edward H. Steinman: I think there are many distinction between naturalize and native born citizens and resident aliens.

First of all, I've see decisions concerning immigration and deportation can only be made in regard to resident aliens.

Citizens are not covered by that.

Second of all, although as this Court recognized the Constitution applies to both citizens and noncitizens.

There is a difference on how the Constitution applies.

If you're an alien, the Government is trying to do in this case can suggest possible compelling to overwrite the interest why an alien can be discriminated against.

If you're citizen, there is no interest that would allow the Government to discriminate against you on your status as a citizen.

Because you are a citizen, you cannot be denied the right to vote, the right to employment.

You may be denied for other reasons because you are an alien you may under the Constitution be denied those rights, if the Government can show a compelling interest.

Justice William H. Rehnquist: Well, has this Court ever found that the Government was able to show a compelling interest where the compelling interest test was applied?

Mr. Edward H. Steinman: I am not aware of that but I would think that in the Sugarman case you explicitly suggest that in the area of voting and the area of holding high public office and the area of holding positions with public policy and confidential components that the Government might be able to satisfy the state government, might be able to satisfy the compelling interest.

Justice Byron R. White: In other words, the Justice is really asking whether the choice of the test doesn't dictate the result.

Mr. Edward H. Steinman: I think in this case it doesn't because I think that the respondents prevail under either test to the extent that the choice of the test dictates the result that is because the Constitution is very zealous to make sure that members of suspect classes have heightened judicial protection.

The problem in this case of course is not whether or not the federal government can for certain job requires citizenship.

We don't object to that, we think it can.

The problem here is the blanket exclusion and obviously the vice of overbreadth is very serious.

Justice Byron R. White: Well, do you say the Government -- that Congress could impose conditions on entry including a condition that you would (Inaudible) for state government?

I take it do you suggest that just hasn't exercise that power?

Mr. Edward H. Steinman: That's right.

Justice Byron R. White: But if it had you wouldn't be here?

Mr. Edward H. Steinman: Well, I'm not sure I wouldn't be here but I think the test could be quite different and I think this Court would give more difference at the congressional power.

As our brief suggest, we don't think that even if plenary power exist that it's something which automatically means to government wins.

In other context, this Court has said that you cannot invoke a plenary power as “talismanic incantation to support the exercise of any Congressional power.”

But clearly if we are in the area of the plenary power in regard to decisions concerning immigration or deportation, I would think that the Government would have a much easier burden to satisfy.

Justice Byron R. White: How do you categorize the federal power to exclude or to deport an alien if he commits a crime?

Mr. Edward H. Steinman: That is under the plenary power, under the Constitution which gives Congress the constitution only says plenary power regarding naturalization.

This Court has said that implicitly contains plenary power over decisions in regard to immigration and deportation.

That's for the plenary power is.

The plenary power is not totally over aliens.

Justice Byron R. White: So you would say that if the Government can deport a person for committing a crime, the Government could if it said so clearly deporting for trying to work for the Government or for working for Government?

Mr. Edward H. Steinman: This Court has over in the last two decades carved out some substance procedure -- substance due process protections for those being deported.

I'm not sure that like example you give would satisfy the Court protection.

Justice Byron R. White: But this is clearly big difference for example between a citizen and an alien?

Mr. Edward H. Steinman: I totally agree and fortunately this case does not involve resident aliens who are doing something wrong but involves resident alien who wish to work for the government and use his skills which they brought with them in the best ways.

Justice Byron R. White: So you think this case really involves -- in from one point of view only and argue and over whether that Congress has exercise powers that it obviously had?

Mr. Edward H. Steinman: Well, I think that Congress exercises power.

I don't think it exercise powers in the area of plenary power as this Court has carved out.

I think that in one way to think of the plenary power's argument is that when this Court has focused on issues of immigration and deportation it is because they involved issues of national security, they involved issues of foreign affairs, they involved issues of the sovereignty of this country and when those type issues are intertwined it becomes more important for this Court to recognize Congress' powers given by the Constitution.

Applying for federal employment as a janitor or applying to federal employment as a file clerk raises no issue of national security, it raises no issue of foreign affairs and I think that is the distinction which has to be made.

Justice Byron R. White: Well, what kind of employment did your fourth client apply for the one who is the citizen of the world?

Mr. Edward H. Steinman: She was sought -- HEW asked her if she was interested in being an evaluator of education programs and on their request she sought to file an application and was not permitted to file an application.

And should it turn out Mr. Justice Blackmun that the position that she sought might involve issues of national security, might involve the type of executive policymaking which was concerning to this Court and into the Sugarman decision and quite properly she might be foreclosed in that position.

The problem is that the regulation as it reads now does not permit that decision to even be made.

It cuts her off at the start before anyone can inquire into her application or abilities.

Justice Potter Stewart: This regulation is common to most of the nations in the world, isn't it?

Mr. Edward H. Steinman: You're right.

Justice Potter Stewart: I suppose your point is that they don't have a Constitution of the United States and they can indulge in all the xenophobia they want to?

Mr. Edward H. Steinman: Well, this Court has said repeatedly the Reid case Mr. Justice Black said that United States has entirely featured the Constitution and its power and authority have no other source.

My one observation I think is important that if we look to International law and this Court would to decide of the Sugarman and Griffiths cases totally the other way because the international law does not permit noncitizens to work in the states of various countries.

Justice Potter Stewart: Well, most countries are not federal systems when such (Voice Overlap).

Mr. Edward H. Steinman: But those that are would not reach decisions of this Court reached Sugarman.

Likewise, the Government properly said that this type of regulation has been in the books for nearly hundred years.

Well, clearly as this Court has said that no one requires a vested or protected right in violating the Constitution.

Mr. Justice Burger in 1970 in the Williams versus Illinois case I think said at best.

New cases exposed all the infirmities which apathy or absence of challenge is permitted to stand but the constitutional imperative of Equal Protection Clause must have priority over the comfortable convenience of the status quo.

We fill very strongly that Ninth Circuit was entirely correct in striking on these regulations as being unconstitutional.

We also feel strong as our brief indicate that the Ninth Circuit could've avoid to the constitutional issue by finding that this regulation was not authorized by the United States Congress or the President of the United States.

This Court has required when sensitive individual rights are involved that there be explicit authorizations when the Executive Branch issues a regulation that the substantial restraints and employment opportunities which raise issues of constitutional mention -- require explicit and specific authorization.

This is from Greene versus McElroy.

In this situation, there is no congressional authorization.

The statutes since 1883 are totally silent in citizenship.

They are specific though about a merely of other employment criteria.

They authorized the President to ascertain fitness as to age, health, character, knowledge, ability for employment sought.

The specificity with regard to these five criteria I would submit indicate that other criteria were not intended and given the fact that the whole operation the Civil Service of program is to best promote the efficiency of the Civil Service.

It can best be promoted by a larger pool of employees not a smaller pool.

Chief Justice Warren E. Burger: Well, the Government has solved that problem by picking and choosing which alien it wants in the past, does it not?

Mr. Edward H. Steinman: None of the regulation --

Chief Justice Warren E. Burger: It doesn't deny itself the pool.

It picks and chooses Wong or Von Braun or various other people when they have a great need for the protective services?

Mr. Edward H. Steinman: Unfortunately, my clients are not of status of Mr. Von Braun and my clients fall under the competitive Civil Service.

The federal government has chosen when none competitive civil service.

Chief Justice Warren E. Burger: We'll resume after lunch.

Mr. Edward H. Steinman: Thank you.

[Lunch Recess]

Chief Justice Warren E. Burger: Mr. Steinman, you have a few minutes left.

Mr. Edward H. Steinman: Thank you Mr. Chief Justice Burger, may it please the Court.

My remarks ended concerning our arguments that the regulation is not authorized by the Congress or the President and that the regulation also conflicts with two Executive Orders.

I feel that our presentation of the brief adequately covers that.

I'd like to conclude my remark that under the Constitution of United States, the Congress has many alternatives, many paths it can take.

It can as suggested by this Court's decision in Sugarman, issue regulation, statutes which say that particular positions because of issues of sensitivity, because of issues of national security, because they involved the formulation, the execution, the review of broad public policy may only rest with citizens.

Likewise, as we suggested this morning, Congress if it chooses and it has not so chosen yet, can impose certain conditions on those who enter, those who are not yet achieved that status of lawful resident alien; those who have still not touched upon the soil of the country.

The point is that Congress has not chosen to do that.

Justice Byron R. White: I need to make -- to get that clear.

Does a condition at that Congress might impose?

Does it end when they finally admit him to the country?

Mr. Edward H. Steinman: According to the decisions of this Court, the importance that attaches when a person becomes a lawful resident alien that is enter this country as a resident alien to be here on a permanent basis.

That is when the person's rights under the Constitution as a person come into effect.

Justice Byron R. White: Do you suggest then that if you admit a person to this country for a permanent residence or even for temporary residence that the condition -- you cannot impose the condition that while he is here he not work for the federal government?

Mr. Edward H. Steinman: No, I'm suggesting that once he is here, the condition will not be imposed.

If that is impose as a condition of its entry into United States that is entirely a different matter.

That --

Justice Byron R. White: And you say that has not been done here.

Mr. Edward H. Steinman: That has not been and though it is not and as I have suggested that Congress has only in two different areas imposed conditions on those who entered United States.

This is not this case here.

Justice Lewis F. Powell: If that condition were imposed upon his entry and he violated the condition, what's the Government sanction?

Mr. Edward H. Steinman: Government obviously can potentially if that is one of the grounds for deportation.

The Government has chosen first not to use -- impose the condition or second or the Government has not utilized deportation for violation of certain types of laws.

But the Government always have the powers of deportation subject to of course constitutional constraints that are placed on that.

Justice Lewis F. Powell: And it could disqualify the alien working for the Government?

Well, then aren't you really -- if you prevail here aren't you really opening the door to adjust this kind of action by Congress and if it is taken are not your client's (Inaudible) than they are to date?

Mr. Edward H. Steinman: Clearly, my clients wouldn't be because there are resident aliens but possibly future immigrants to this country might have conditions post now.

Let me -- my point is that for purposes of argument in this case I will concede that Congress has it.

As an attorney of that case came before me, I would like to be back before this Court (Voice Overlap) point.

Justice Potter Stewart: Do you say it was under constitutional condition?

Mr. Edward H. Steinman: I would say that, but I'm trying to say that at this point Congress the vehicle that Congress chose and has chosen now a blanket regulation that only deals with resident aliens is not a proper vehicle under the Constitution.

In Graham, this Court said, “The Congress does not have the power to authorize the individual states to violate the Equal Protection Clause.”

What I'm suggesting in this case is that Congress doesn't have the power to authorize itself to violate the Fifth Amendment.

Whatever tests this Court employs the compelling interest test a rational relation etcetera.

The Congress has violated the Constitution.

Should Congress choose other vehicles and I hope that Congress would take the lead that Mr. Justice Blackmun suggested in Sugarman that possibly identified those types of positions were maybe we wished to have citizen formulation and execution review that brought public policy that Congress take the lead of a postal service where the postal service has identified its certain sensitive positions still must be held only by citizens.

But that for the broad mass of people such as the jobs that my clients are seeking, unfortunately not seeking a job sought by in Mr. Van Braun that citizenship is clearly not relevant for that.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Steinman.

Mr. Solicitor General, do you have anything further?

Rebuttal of Bork

Mr. Bork: I have nothing further Mr. Chief Justice.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

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