The Civil Service Commission (CSC) regulation barring
noncitizens, including lawfully admitted resident aliens, from
employment in the federal competitive civil service
held
unconstitutional as depriving such resident aliens of liberty
without due process of law in violation of the Fifth Amendment. Pp.
426 U. S.
99-117.
(a) While overriding national interests may justify a
citizenship requirement in the federal service even though an
identical requirement may not be enforced by a State, the federal
power over aliens is not so plenary that any agent of the Federal
Government may arbitrarily subject all resident aliens to different
substantive rules from those applied to citizens. When the Federal
Government asserts an overriding national interest to justify a
discriminatory rule that would violate the Equal Protection Clause
of the Fourteenth Amendment if adopted by a State, due process
requires that there be a legitimate basis for presuming that the
rule was actually intended to serve that interest. Pp. 426 U. S.
99-105.
(b) While the CSC's policy of conditioning eligibility for
employment in the federal civil service on citizenship has been
considered by Congress in certain Appropriation Acts imposing
various limitations on the classes of employees who may receive
compensation from the Federal Government and by various Presidents
in Executive Orders relating to the CSC's authority to establish
standards for federal employment, those Appropriation Acts and
Executive Orders cannot fairly be construed to evidence either
approval or disapproval of the CSC regulation in question. Pp.
426 U. S.
105-114.
(c) Assuming without deciding that an explicit determination by
Congress or the President to exclude all noncitizens from the
federal service would be adequately supported by the national
interests of (1) providing the President with an expendable token
for treaty negotiation purposes, (2) offering aliens an incentive
to
Page 426 U. S. 89
become naturalized, and (3) having, for the sake of
administrative convenience, one simple rule excluding all
noncitizens from employment when citizenship is clearly an
appropriate and legitimate requirement for some important and
sensitive positions, such interests cannot provide an acceptable
rationalization for such a determination by the CSC. The first two
are not matters that properly concern the CSC. The third interest
is likewise unacceptable where it does not appear that the CSC
fully evaluated the relative desirability of a simple exclusionary
rule, on the one hand, or the value to the service of enlarging the
pool of eligible employees, on the other, and where it cannot be
reasonably inferred that the administrative burden of establishing
the job classifications for which citizenship is an appropriate
requirement would be particularly onerous. More significantly, in
view of the quality of the interest at stake, any fair balancing of
the public interest in avoiding the wholesale deprivation of
employment opportunities caused by the CSC's indiscriminate policy,
as opposed to what may be nothing more than a hypothetical
justification, requires rejection of administrative convenience as
justification for the regulation. Pp.
426 U. S.
114-116.
(d) Since alien residents are admitted as a result of decisions
made by Congress and the President, implemented by the Immigration
and Naturalization Service acting under the Attorney General, due
process requires that the decision to deprive such residents of an
important liberty be made either at a comparable level of
government or, if it is to be permitted to be made by the CSC, that
it be justified by reasons that are the proper concern of that
agency. P.
426 U. S.
116.
500 F.2d 1031, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined. BRENNAN, J.,
filed a concurring statement, in which MARSHALL, J., joined,
post, p.
426 U. S. 117.
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
and WHITE and BLACKMUN, JJ., joined,
post, p.
426 U. S.
117.
Page 426 U. S. 90
MR. JUSTICE STEVENS delivered the opinion of the Court.
Five aliens, lawfully and permanently residing in the United
States, brought this litigation to challenge the validity of a
policy, adopted and enforced by the Civil Service Commission and
certain other federal agencies, which excludes all persons except
American citizens and natives of American Samoa from employment in
most positions subject to their respective jurisdictions. [
Footnote 1] Because the policy, the
law, and the identity of the parties have changed somewhat since
the litigation commenced,
Page 426 U. S. 91
we state the facts in detail before addressing the important
question which we granted certiorari to resolve. 417 U.S. 944.
I
Each of the five plaintiffs was denied federal employment solely
because of his or her alienage. They were all Chinese residents of
San Francisco, and each was qualified for an available job.
After performing satisfactory work for the Post Office
Department for 10 days, respondent Kae Cheong Lui was terminated
because his personnel record disclosed that he was not a citizen.
[
Footnote 2] Respondents Mow
Sun Wong and Siu Hung Mok also demonstrated their ability to
perform on the job; they both participated in the California
Supplemental Training and Education Program (STEP) and were
assigned to federal agencies until the STEP program ended. As a
noncitizen, Mow Sun Wong, who had been an electrical engineer in
China, was ineligible for employment as a janitor for the General
Services Administration. Siu Hung Mok, who had 18 years' experience
as a businessman in China, could not retain his job as a file clerk
with the Federal Records Center of GSA.
Respondent Francene Lum was not permitted to take an examination
for a position as evaluator of educational programs in the
Department of Health, Education, and Welfare. Her background
included 15 years of teaching experience, a master's degree in
education, and periods of graduate study at four universities. Anna
Yu, the fifth plaintiff, who is not a respondent because she did
not join in the appeal from the adverse decision of the
District
Page 426 U. S. 92
Court, sought a position as a clerk typist, but could not take
the typing test because she was not a citizen.
Two of the plaintiffs, Mow Sun Wong and Siu Hung Mok, had filed
declarations of intent to become citizens; the other three had not.
They were all lawfully admitted, Francene Lum in 1946, Anna Yu in
1965, Siu Hung Mok and Kae Cheong Lui in 1968, and Mow Sun Wong in
1969.
On December 22, 1970, they commenced this class action in the
Northern District of California. As defendants they named the
Chairman and the Commissioners of the Civil Service Commission and
the heads of the three agencies which had denied them employment.
[
Footnote 3]
The complaint alleged that there are about four million aliens
living in the United States; they face special problems in seeking
employment because our culture, language, and system of government
are foreign to them; about 300,000 federal jobs become available
each year, but noncitizens are not permitted to compete for those
jobs except in rare situations when citizens are not available or
when a few positions exempted from the competitive civil service
are being filled. Plaintiffs further alleged that the advantage
given to citizens seeking federal civil service positions is
arbitrary, and violates the
Page 426 U. S. 93
Due Process Clause of the Fifth Amendment to the United States
Constitution [
Footnote 4] and
Executive Order No. 11,478, 3 CFR 803 (1966-1970 Comp.), which
forbids discrimination in federal employment on the basis of
"national origin." The complaint sought declaratory and injunctive
relief.
Defendants moved to dismiss the complaint, and plaintiffs filed
motions for summary judgment supported by affidavits setting forth
the facts stated above. The District Court rejected a challenge to
its jurisdiction, [
Footnote 5]
but ruled in favor of defendants on the merits.
333 F.
Supp. 527. The District Court held that the reference to
"national origin" in the Executive Order prohibited discrimination
among citizens, rather than discrimination between citizens and
noncitizens. The court also rejected an argument that the Civil
Service Commission regulation was inconsistent with § 502 of the
Public Works for Water, Pollution Control, and Power Development
and Atomic Energy Commission Appropriation Act, 1970, which
permitted payment to classes of persons who are made ineligible by
the Civil Service regulation. [
Footnote 6] On that point, the court said:
"The Commission has acted permissibly in relation
Page 426 U. S. 94
to the Appropriations Act in not opening up the civil service to
all those whom Congress has indicated it would be willing to pay
for their work."
333 F. Supp. at 531.
Finally, the District Court held that the Commission's
discrimination against aliens was constitutional. The court noted
that the federal power over aliens is "quite broad, almost
plenary," and therefore the classification needed only a rational
basis.
Ibid. It identified two grounds upon which the
President [
Footnote 7] could
properly rely: first, that the formation of policy and its
execution, at whatever level, should only be entrusted to United
States citizens, or, alternatively, that
"the Executive may intend that the economic security of its
citizens be served by the reservation of competitive civil service
positions to them, rather than to aliens."
Id. at 532.
Four of the plaintiffs appealed. During the period of
Page 426 U. S. 95
over two years that the appeal was pending in the Ninth Circuit,
we decided two cases that recognize the importance of protecting
the employment opportunities of aliens. [
Footnote 8] In
Sugarman v. Dougall,
413 U. S. 634, we
held that a section of the New York Civil Service Law which
provided that only United States citizens could hold permanent
positions in the competitive class of the State's civil service
violated the Equal Protection Clause of the Fourteenth Amendment;
that Clause also provided the basis for our holding in
In re
Griffiths, 413 U. S. 717,
decided on the same day, that Connecticut's exclusion of aliens
from the practice of law was unconstitutional.
In this case, the Court of Appeals recognized that neither
Sugarman nor
Griffiths was controlling, because
the Fourteenth Amendment's restrictions on state power are not
directly applicable to the Federal Government [
Footnote 9] and because Congress and the President
have broad power over immigration and naturalization which the
States do not possess. [
Footnote
10] Nevertheless, those decisions provided the Court of Appeals
with persuasive reasons for rejecting the bases asserted by the
defendants in the District Court as justifications for the Civil
Service Commission's policy of discriminating against noncitizens.
For we specifically held that the State's legitimate interest
Page 426 U. S. 96
in the undivided loyalty of the civil servant who participates
directly in the formulation and execution of government policy, was
inadequate to support a state restriction indiscriminately
disqualifying the "sanitation man, class B," the typist, and the
office worker, 413 U.S. at
413 U. S. 641-643; moreover, we expressly considered,
and rejected, New York's contention that its special interest in
the advancement and profit of its own citizens could justify
confinement of the State's civil service to citizens of the United
States,
id. at
413 U. S.
643-645.
The Court of Appeals reversed; it agreed with the District
Court's analysis of the nonconstitutional issues, but held the
regulation violative of the Due Process Clause of the Fifth
Amendment. Although refusing to accept respondents' contention that
the protection against federal discrimination provided by the Fifth
Amendment is coextensive with that applicable to the States under
the Equal Protection Clause of the Fourteenth Amendment, the court
concluded that the Commission regulation which "sweeps
indiscriminately excluding all aliens from all positions requiring
the competitive Civil Service examination" could not be supported
by justifications which related to only a small fraction of the
positions covered by the rule. 500 F.2d 1031, 1037. Thus, the court
accepted the argument that citizenship might properly be required
in positions involving policymaking decisions, or in positions
involving national security interests, but the court was unwilling
to support an extraordinarily broad exclusion on such narrow
shoulders.
Only the Chairman and the Commissioners of the Civil Service
Commission petitioned for certiorari. Several of the nonpetitioning
defendants have no responsibility for the establishment of
standards which applicants for federal employment must meet;
accordingly, their participation is not necessary. The former
Postmaster
Page 426 U. S. 97
General is not now a necessary party for a different reason.
In 1971, after the litigation was commenced, Congress
established a new Postal Service and removed its officers and
employees from the jurisdiction of the Civil Service Commission.
[
Footnote 11] For the first
three years of its existence, the new Postal Service retained
substantially the same citizenship requirement for employees as did
the Civil Service Commission. [
Footnote 12] However, in 1974, without any additional
statutory authority or direction, the Postal Service amended its
regulation to make all noncitizens who have been accorded permanent
resident alien status in the United States eligible for all
positions except those at a high executive level or those expressly
designated as
Page 426 U. S. 98
"sensitive." [
Footnote
13] Thus, although the case is not technically moot as regards
the Postal Service, [
Footnote
14] that Service does not now have any interest in defending
the challenged Civil Service regulation.
We granted certiorari to decide the following question presented
by the petition:
"Whether a regulation of the United States Civil
Page 426 U. S. 99
Service Commission that bars resident aliens from employment in
the federal competitive civil service is constitutional."
We now address that question.
II
Petitioners have chosen to argue on the merits a somewhat
different question. In their brief, the petitioners rephrased the
question presented as
"[w]hether the Civil Service Commission's regulation . . . is
within the constitutional powers of Congress and the President, and
hence not a constitutionally forbidden discrimination against
aliens. [
Footnote 15]"
This phrasing of the question assumes that the Commission
regulation is one that was mandated by the Congress, the President,
or both. On this assumption, the petitioners advance alternative
arguments to justify the discrimination as an exercise of the
plenary federal power over immigration and naturalization. First,
the petitioners argue that the equal protection aspect of the Due
Process Clause of the Fifth Amendment is wholly inapplicable to the
exercise of federal power over aliens, and therefore no
justification for the rule is necessary. [
Footnote 16] Alternatively, the petitioners argue that
the Fifth Amendment imposes only a slight burden of justification
on the Federal Government, and that such a burden is easily met by
several factors not considered by the District Court or the Court
of Appeals. Before addressing these arguments, we first discuss
certain limitations
Page 426 U. S. 100
which the Due Process Clause places on the power of the Federal
Government to classify persons subject to its jurisdiction.
The federal sovereign, like the States, must govern impartially.
The concept of equal justice under law is served by the Fifth
Amendment's guarantee of due process, as well as by the Equal
Protection Clause of the Fourteenth Amendment. Although both
Amendments require the same type of analysis,
see Buckley v.
Valeo, 424 U. S. 1,
424 U. S. 93, the
Court of Appeals correctly stated that the two protections are not
always coextensive. Not only does the language of the two
Amendments differ, [
Footnote
17] but, more importantly, there may be overriding national
interests which justify selective federal legislation that would be
unacceptable for an individual State. On the other hand, when a
federal rule is applicable to only a limited territory, such as the
District of Columbia, or an insular possession, and when there is
no special national interest involved, the Due Process Clause has
been construed as having the same significance as the Equal
Protection Clause. [
Footnote
18]
In this case, we deal with a federal rule having nationwide
impact. The petitioners correctly point out that the paramount
federal power over immigration and naturalization forecloses a
simple extension of the holding in
Sugarman as decisive of
this case. [
Footnote 19] We
agree
Page 426 U. S. 101
with the petitioners' position that overriding national
interests may provide a justification for a citizenship requirement
in the federal service even though an identical requirement may not
be enforced by a State. [
Footnote 20]
We do not agree, however, with the petitioners' primary
submission that the federal power over aliens is so plenary that
any agent of the National Government may arbitrarily subject all
resident aliens to different substantive rules from those applied
to citizens. We recognize that the petitioners' argument draws
support from both the federal and the political character of the
power over immigration and naturalization. [
Footnote 21]
Page 426 U. S. 102
Nevertheless, countervailing considerations require rejection of
the extreme position advanced by the petitioners.
The rule enforced by the Commission has its impact on an
identifiable class of persons who, entirely apart from the rule
itself, are already subject to disadvantages not shared by the
remainder of the community. [
Footnote 22] Aliens are not entitled to vote, and, as
alleged in the complaint, are often handicapped by a lack of
familiarity with our language and customs. The added disadvantage
resulting from the enforcement of the rule -- ineligibility for
employment in a major sector of the economy -- is of sufficient
significance to be characterized as a deprivation of an interest in
liberty. [
Footnote 23]
Indeed, we deal with a
Page 426 U. S. 103
rule which deprives a discrete class of persons of an interest
in liberty on a wholesale basis. By reason of the Fifth Amendment,
such a deprivation must be accompanied by due process. It follows
that some judicial scrutiny of the deprivation is mandated by the
Constitution.
Respondents argue that this scrutiny requires invalidation of
the Commission rule under traditional equal protection analysis. It
is true that our cases establish that the Due Process Clause of the
Fifth Amendment authorizes that type of analysis of federal rules,
and therefore that the Clause has a substantive, as well as a
procedural, aspect. However, it is not necessary to resolve
respondents' substantive claim if a narrower inquiry discloses that
essential procedures have not been followed.
When the Federal Government asserts an overriding national
interest as justification for a discriminatory rule which would
violate the Equal Protection Clause if adopted by a State, due
process requires that there be a legitimate basis for presuming
that the rule was actually intended to serve that interest. If the
agency which promulgates the rule has direct responsibility for
fostering or protecting that interest, it may reasonably be
presumed that the asserted interest was the actual predicate for
the rule. That presumption would, of course, be fortified by an
appropriate statement of reasons identifying the relevant interest.
Alternatively, if the rule were expressly mandated by the Congress
or the President, we might presume that any interest which might
rationally be served by the rule did, in fact, give rise to its
adoption.
In this case, the petitioners have identified several
Page 426 U. S. 104
interests which the Congress or the President might deem
sufficient to justify the exclusion of noncitizens from the federal
service. They argue, for example, that the broad exclusion may
facilitate the President's negotiation of treaties with foreign
powers by enabling him to offer employment opportunities to
citizens of a given foreign country in exchange for reciprocal
concessions -- an offer he could not make if those aliens were
already eligible for federal jobs. Alternatively, the petitioners
argue that reserving the federal service for citizens provides an
appropriate incentive to aliens to qualify for naturalization, and
thereby to participate more effectively in our society. They also
point out that the citizenship requirement has been imposed in the
United States with substantial consistency for over 100 years, and
accords with international law and the practice of most foreign
countries. Finally, they correctly state that the need for
undivided loyalty in certain sensitive positions clearly justifies
a citizenship requirement in at least some parts of the federal
service, and that the broad exclusion serves the valid
administrative purpose of avoiding the trouble and expense of
classifying those positions which properly belong in executive or
sensitive categories. [
Footnote
24]
The difficulty with all of these arguments except the last is
that they do not identify any interest which can reasonably be
assumed to have influenced the Civil Service Commission, the Postal
Service, the General Services Administration, or the Department of
Health,
Page 426 U. S. 105
Education, and Welfare in the administration of their respective
responsibilities or, specifically, in the decision to deny
employment to the respondents in this litigation. We may assume
with the petitioners that, if the Congress or the President had
expressly imposed the citizenship requirement, it would be
justified by the national interest in providing an incentive for
aliens to become naturalized, or possibly even as providing the
President with an expendable token for treaty negotiating purposes;
but we are not willing to presume that the Chairman of the Civil
Service Commission, or any of the other original defendants, was
deliberately fostering an interest so far removed from his normal
responsibilities. Consequently, before evaluating the sufficiency
of the asserted justification for the rule, it is important to know
whether we are reviewing a policy decision made by Congress and the
President or a question of personnel administration determined by
the Civil Service Commission.
III
It is perfectly clear that neither the Congress nor the
President has ever required the Civil Service Commission to adopt
the citizenship requirement as a condition of eligibility for
employment in the federal civil service. On the other hand, in view
of the fact that the policy has been in effect since the Commission
was created in 1883, it is fair to infer that both the Legislature
and the Executive have been aware of the policy and have acquiesced
in it. In order to decide whether such acquiescence should give the
Commission rule the same support as an express statutory or
Presidential command, it is appropriate to review the extent to
which the policy has been given consideration by Congress or the
President, and the nature of the authority specifically delegated
to the Commission.
Page 426 U. S. 106
The Commission was originally established pursuant to the
Pendleton Civil Service Act of 1883. [
Footnote 25] That Act was a major piece of reform
legislation designed to eliminate the abuses associated with the
patronage system from much of the federal service. [
Footnote 26] Before that legislation was
passed, the Senate considered and rejected a bill that would have
expressly limited civil service appointment to citizens. [
Footnote 27] It is fair to summarize
the relevant references to the citizenship requirement, however, as
indicating that several Senators assumed that such a requirement
would be imposed by the Commission, [
Footnote 28] and that the matter was in an area better
handled by regulation than by statute. [
Footnote 29]
Page 426 U. S. 107
In its historical context, the assumption that only citizens
would be employed in the federal service is easily understood. The
new system of merit appointment, based on competitive examination,
was replacing a patronage system in which appointment had often
been treated as a method of rewarding support at the polls; since
such rewards were presumably reserved for voters (or members of
their families) who would necessarily be citizens, citizenship must
have characterized most, if not all, federal employees at that
time. The assumption that such a requirement would survive the
enactment of the new statute is by no means equivalent to a
considered judgment that it should do so.
Moreover, it must be acknowledged that, in 1883, there was no
doubt a greater inclination than we can now accept to regard
"foreigners" as a somewhat less desirable class of persons than
American citizens. A provincial attitude toward aliens may
partially explain the assumption that they would not be employed in
the federal service by the new Civil Service Commission. But since
that attitude has been implicitly repudiated by our cases requiring
that aliens be treated with the dignity and respect accorded to
other persons, [
Footnote 30]
and since that attitude did not affect the form of the legislation
itself, we disregard it in our evaluation of Congress'
participation in the decision to impose the citizenship
requirement.
When the Commission was created, it immediately
Page 426 U. S. 108
adopted the citizenship requirement, and that fact was duly
reported to Congress. [
Footnote
31] Congress has not thereafter repudiated, or even considered
the desirability of repudiating, the Commission's policy. It has,
however, in a number of its Appropriation Acts, imposed various
limitations on the classes of employees who may receive
compensation from the Federal Government. These limitations give
rise to conflicting inferences which may be illustrated by
reference to five such Acts.
In 1938, Congressman Starnes offered an amendment to the pending
appropriation bill [
Footnote
32] to provide that none of the authorized funds could be used
to pay the compensation of any federal employee not a citizen of
the United States. [
Footnote
33] The stated purpose of the amendment was to give preference
to American citizens during a period of widespread unemployment.
The amendment was accepted by the House without opposition. In the
Senate, however, the restriction was modified to allow employment
of any person owing allegiance to the United States, or who was
then employed in the service of the United States, or who was
needed because citizens with requisite experience and
qualifications were not available. [
Footnote 34] In 1939, a similar provision was broadened
further to allow compensation for aliens eligible for citizenship
who had filed a declaration of intention to become citizens, and
also for certain Coast Guard veterans who were ineligible for
United States citizenship. [
Footnote 35] In 1942, aliens who were
Page 426 U. S. 109
citizens of the Commonwealth of the Philippines were exempted
from the prohibition, [
Footnote
36] in 1943, the exemption was extended to "nationals of those
countries allied with the United States in the prosecution of the
war," [
Footnote 37] and
then, in 1953, the exemption was also made applicable to
permanently admitted aliens from the Baltic countries. [
Footnote 38]
In the District Court, respondents argued that the exemptions
from the limitations included in the Appropriations Acts had become
so broad by 1969 as to constitute a congressional determination of
policy repudiating the narrow citizenship requirement in the
Commission rule. Though not controlling, there is force to this
argument. On the other hand, the fact that Congress repeatedly
identified citizenship as one appropriate classification of persons
eligible for compensation for federal service implies a continuing
interest in giving preference, for reasons unrelated to the
efficiency of the federal service, to citizens over aliens. In our
judgment, however, that fact is less significant than the fact that
Congress has consistently authorized payment to a much broader
class of potential employees than the narrow category of citizens
and natives of American Samoa eligible under the Commission rule.
Congress has regularly provided for compensation of any federal
employee owing allegiance to the United States. Since it is settled
that aliens may take an appropriate oath of allegiance, [
Footnote 39] the statutory category,
though not precisely defined, is plainly more flexible and
expansive than the Commission rule. Nevertheless, for present
purposes, we need merely conclude
Page 426 U. S. 110
that the Appropriations Acts cannot fairly be construed to
evidence either congressional approval or disapproval of the
specific Commission rule challenged in this case.
Our review of the relevant Executive Orders leads us to a
similar conclusion with respect to the President's responsibility
for the rule. The first Civil Service rules promulgated by
President Arthur required every applicant for an examination to
disclose his citizenship, as well as other information such as his
name and address. [
Footnote
40] These rules did not expressly prescribe United States
citizenship as a condition for eligibility. It may well be true,
however, that the President, like the members of the Senate
referred to above, assumed that the Commission would impose such a
requirement. Moreover, we must assume that he also became aware of
the requirement after the Commission adopted it. Nevertheless,
there is a marked difference between acceptance by the President of
a Commission rule to which no objection has been made and a
decision made by the President himself.
Over the years, the Commission revised its rules a number of
times. Although it was Commission practice to require citizenship
between 1883 and 1895, apparently the first time the requirement
was expressly stated in a rule was in 1896. [
Footnote 41] In 1903, President Theodore
Roosevelt amended the rule to permit persons who "owe allegiance to
the United States" to qualify. [
Footnote 42] The amendment did not define that class of
persons. The Commission
Page 426 U. S. 111
has explained that it was intended to apply to persons in Puerto
Rico and the Philippines who then had the status of noncitizen
nationals. The language of the amendment, however, would seem broad
enough to cover any person willing to take an appropriate oath of
allegiance. [
Footnote
43]
In 1906, President Roosevelt again amended the rule by adding an
authorization to the Commission, in its discretion, to permit
noncitizens to take examinations when "there is a lack of eligibles
who are American citizens." [
Footnote 44] The amendment, however, provided that
noncitizens should not be certified if eligible citizens were
available. Although this amendment had the effect of increasing the
employment opportunities of aliens, it unquestionably indicates
that President Roosevelt then approved of a policy of giving
preference to citizens.
The Executive Order which authorized the promulgation of the
specific rule involved in this case was issued by President
Eisenhower in 1954. In relevant part it provides:
"The [Civil Service] Commission is authorized to establish
standards with respect to citizenship, age, education, training and
experience, suitability, and physical and mental fitness, and for
residence or other requirements which applicants must meet to be
admitted to or rated in examinations."
Exec.Order No. 10,577, § 2.1(a), 3 CFR 218, 219 (19541958
Comp.).
Page 426 U. S. 112
This direction "to establish standards with respect to
citizenship" is not necessarily a command to require citizenship as
a general condition of eligibility for federal employment. Rather,
it is equally, if not more reasonably, susceptible of
interpretation as a command to classify positions for which
citizenship should be required. Even though such an interpretation
might permit the Commission to decide that citizenship should be
required for all federal positions, it would remain true that the
decision to impose the requirement was made by the Commission,
rather than the President. That this is in fact the case is
demonstrated by the elimination of the citizenship requirement for
employment in the Postal Service which took place after this
litigation commenced. Pursuant to a broad grant of authority
comparable, in its generality and in its absence of any reference
to a citizenship requirement, to that applicable to the Civil
Service Commission, [
Footnote
45] the Postal Service originally
Page 426 U. S. 113
imposed such a requirement and then withdrew it. Neither the
establishment nor the withdrawal of the requirement was either
mandated or questioned by Congress or the President.
We have no doubt that the statutory directive which merely
requires such regulations "as will best promote the efficiency of
[the] Service," 5 U.S.C. § 3301(1), as well as the pertinent
Executive Order, gives the Civil Service Commission the same
discretion that the Postal Service has actually exercised; the
Commission may either retain or modify the citizenship requirement
without further authorization from Congress or the President.
[
Footnote 46] We are
therefore persuaded that our inquiry is whether the national
interests which the Government identifies as justifications for the
Commission rule are
Page 426 U. S. 114
interests on which that agency may properly rely in making a
decision implicating the constitutional and social values at stake
in this litigation.
We think the petitioners accurately stated the question
presented in their certiorari petition. The question is whether the
regulation of the United States Civil Service Commission is valid.
We proceed to a consideration of that question, assuming, without
deciding, that the Congress and the President have the
constitutional power to impose the requirement that the Commission
has adopted.
IV
It is the business of the Civil Service Commission to adopt and
enforce regulations which will best promote the efficiency of the
federal civil service. That agency has no responsibility for
foreign affairs, for treaty negotiations, for establishing
immigration quotas or conditions of entry, or for naturalization
policies. Indeed, it is not even within the responsibility of the
Commission to be concerned with the economic consequences of
permitting or prohibiting the participation by aliens in employment
opportunities in different parts of the national market. On the
contrary, the Commission performs a limited and specific
function.
The only concern of the Civil Service Commission is the
promotion of an efficient federal service. [
Footnote 47] In general,
Page 426 U. S. 115
it is fair to assume that its goal would be best served by
removing unnecessary restrictions on the eligibility of qualified
applicants for employment. With only one exception, the interests
which the petitioners have put forth as supporting the Commission
regulation at issue in this case are not matters which are properly
the business of the Commission. That one exception is the
administrative desirability of having one simple rule excluding all
noncitizens when it is manifest that citizenship is an appropriate
and legitimate requirement for some important and sensitive
positions. Arguably, therefore, administrative convenience may
provide a rational basis for the general rule.
For several reasons, that justification is unacceptable in this
case. The Civil Service Commission, like other administrative
agencies, has an obligation to perform its responsibilities with
some degree of expertise, and to make known the reasons for its
important decisions. There is nothing in the record before us, or
in matter of which we may properly take judicial notice, to
indicate that the Commission actually made any considered
evaluation of the relative desirability of a simple exclusionary
rule, on the one hand, or the value to the service of enlarging the
pool of eligible employees, on the other. Nor can we reasonably
infer that the administrative burden of establishing the job
classifications for which citizenship is an appropriate requirement
would be a particularly onerous task for an expert in personnel
matters; indeed, the Postal Service apparently encountered no
particular difficulty in making such a classification. Of greater
significance, however, is the quality of the interest at stake. Any
fair balancing of the public interest in avoiding the wholesale
deprivation of employment opportunities caused by the Commission's
indiscriminate
Page 426 U. S. 116
policy, as opposed to what may be nothing more than a
hypothetical justification, requires rejection of the argument of
administrative convenience in this case. [
Footnote 48]
In sum, assuming without deciding that the national interests
identified by the petitioners would adequately support an explicit
determination by Congress or the President to exclude all
noncitizens from the federal service, we conclude that those
interests cannot provide an acceptable rationalization for such a
determination by the Civil Service Commission. The impact of the
rule on the millions of lawfully admitted resident aliens is
precisely the same as the aggregate impact of comparable state
rules which were invalidated by our decision in
Sugarman.
By broadly denying this class substantial opportunities for
employment, the Civil Service Commission rule deprives its members
of an aspect of liberty. Since these residents were admitted as a
result of decisions made by the Congress and the President,
implemented by the Immigration and Naturalization Service acting
under the Attorney General of the United States, [
Footnote 49] due process requires that the
decision to impose that deprivation of an important liberty be made
either at a comparable level of government or, if it is to be
permitted to be made by the Civil Service Commission, that it be
justified by reasons which are properly the concern of that agency.
We hold that § 338.101(a) of the Civil Service Commission
Regulations has deprived these respondents
Page 426 U. S. 117
of liberty without due process of law, and is therefore
invalid.
The judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
The Civil Service Commission's regulations, 5 CFR § 338.101
(1976), provide in pertinent part:
"(a) A person may be admitted to competitive examination only if
he is a citizen of or owes permanent allegiance to the United
States."
"(b) A person may be given appointment only if he is a citizen
of or owes permanent allegiance to the United States. However, a
noncitizen may be given (1) a limited executive assignment under
section 305.509 of this chapter in the absence of qualified
citizens or (2) an appointment in rare cases under section 316.601
of this chapter, unless the appointment is prohibited by
statute."
Apparently the only persons other than citizens who owe
permanent allegiance to the United States are noncitizen
"nationals."
See 8 U.S.C. §§ 1101(a)(21), (22), 1408. The
Solicitor General has advised us that the Commission construes the
phrase as covering only natives of American Samoa. Brief for
Petitioners 81 n. 67.
[
Footnote 2]
The termination letter, dated October 19, 1970, read:
"Your personnel records indicate that you are not a citizen of
the United States. Therefore, it is necessary to terminate your
services effective close of business October 20/1970, in accordance
with the Postal Manual Regulations 711.531."
[
Footnote 3]
The defendants named in the original complaint were Robert E.
Hampton, Chairman, James E. Johnson, and L. J. Andolsek,
Commissioners, Nicholas J. Oganovic, Executive Director, and Asa T.
Briley, Regional Director, of the United States Civil Service
Commission; Robert L. Kunzig, then Administrator, and Thomas
Hannon, Regional Administrator, of the General Services
Administration; Elliot Richardson, then Secretary, and Robert Coop,
Regional Director, of the Department of Health, Education, and
Welfare; and Winton Blount, then Postmaster General of the United
States; Lim Poon Lee, Postmaster of the city and county of San
Francisco; and Russel E. James, Regional Director of the United
States Post Office Department.
[
Footnote 4]
The Fifth Amendment to the Constitution of the United States
provides:
"No person shall be . . . deprived of life, liberty, or
property, without due process of law. . . ."
[
Footnote 5]
Judge Peckham held that jurisdiction was conferred by 28 U.S.C.
§1331. He found no merit in the argument that there had been no
waiver of sovereign immunity; he was also satisfied that the action
is one which "arises under" the Constitution and laws of the United
States, and that each plaintiff's claim satisfied the
jurisdictional amount.
[
Footnote 6]
Section 502 of the Act provides in pertinent part as
follows:
"[N]o part of any appropriation contained in this or any other
Act shall be used to pay the compensation of any officer or
employee of the Government of the United States (including any
agency the majority of the stock of which is owned by the
Government of the United States) whose post of duty is in
continental United States unless such person (1) is a citizen of
the United States, (2) is a person in the service of the United
States on the date of enactment of this Act, who, being eligible
for citizenship, had filed a declaration of intention to become a
citizen of the United States prior to such date, (3) is a person
who owes allegiance to the United States. . . ."
83 Stat. 336.
[
Footnote 7]
In using the term "Executive," it is clear that Judge Peckham
intended to identify the President, rather than any of the
defendant agency heads:
"It is quite rational and reasonable for the Executive, via a
grant of power from the Legislature, to determine that the
formation of policy and its execution, at whatever level, should be
entrusted only to United States citizens. Moreover, as an
alternative rational basis for the regulation herein, the Executive
may intend that the economic security of its citizens be served by
the reservation of competitive civil service positions to them,
rather than to aliens."
333 F. Supp. at 532.
[
Footnote 8]
Sugarman v. Dougall, 413 U. S. 634, and
In re Griffiths, 413 U. S. 717,
were both decided on June 25, 1973.
Graham v. Richardson,
403 U. S. 365, was
decided on June 14, 1971, only a few weeks before the District
Court decision.
[
Footnote 9]
The Fourteenth Amendment, §1, provides:
"[N]or shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within
its jurisdiction the equal protection of the laws."
[
Footnote 10]
Article I, §8, cl. 4, of the Constitution of the United States
provides:
"The Congress shall have Power . . . [t]o establish an uniform
Rule of Naturalization. . . ."
[
Footnote 11]
Pub.L. 91-375, 84 Stat. 719. The technical amendment to Title 5
removed the officers and employees of the Postal Service and Postal
Rate Commission from the definitions of officers and employees who
are subject to civil service.
[
Footnote 12]
During this period, the Postal Service Personnel Handbook
provided:
"317.3 Citizenship Requirements"
".31 Applicability"
".311 Except as provided in 317.312 below, only persons who are
citizens of, or owe allegiance to the United States shall be given
appointments in the Postal Service. Natives of American Samoa are
the only noncitizens who, as a group, owe permanent allegiance to
the United States."
".312 Regional Postmasters General may approve individual
appointments of noncitizen nationals under unusual circumstances
such as when qualified citizens are not available. These
appointments will be subject to the individual prior approval of
the Regional Postmaster General."
".32 Responsibility for Determining Citizenship"
"The appointing officer is responsible for determining that all
persons selected for appointment meet the citizenship
requirement."
Transmittal Letter 2, 8-18-72.
[
Footnote 13]
The Postal Bulletin issued on May 2, 1974 substituted the
following "citizenship requirements" for those quoted in
n 12,
supra:
"317.3 Citizenship Requirements"
".31 Noncitizens of the United States who have been accorded
permanent resident alien status in the United States are eligible
for appointment to all Postal Service positions other than
positions in levels PES-20 and above, and positions designated by
the Postal Service as sensitive. Natives of American Samoa are
eligible for appointment to all Postal Service positions.
Appointments of noncitizens to positions in levels PES-20 and above
or to positions designated as sensitive can only be made with the
prior approval of the appropriate Regional Postmaster General or an
Assistant Postmaster General, in headquarters."
".32 The appointing officer may make his determination as to
whether the appointee is a citizen of the United States on the
basis of the eligible's sworn or affirmed statement, on Form 61,
Appointment Affidavit, at the time of appointment. A noncitizen's
permanent resident alien status shall be determined by reference to
the appointee's Alien Registration Receipt Card (Form I-151), which
the permanent resident alien is furnished by the Immigration and
Naturalization Service."
".33 The appointing officer is responsible for determining that
all persons selected for appointment meet the requirements of
sections 317.31 and 317.32."
"Regional and local postal officials should take appropriate
measures to insure that announcements and forms conform to the new
policy, and that prospective applicants for postal employment are
given correct information concerning the policy."
[
Footnote 14]
Cf. United States v. W. T. Grant Co., 345 U.
S. 629. The Postal Service, in modifying its citizenship
regulations (n. 13,
supra), specifically indicated that it
was doing so "[a]s a result of recent Federal litigation." Postal
Bull., May 2, 1974, p. 2.
[
Footnote 15]
Brief for Petitioners 2.
[
Footnote 16]
The petitioners state:
"Our primary submission is that the decision to limit employment
of noncitizens in the federal competitive civil service is likewise
a matter beyond the reach of the equal protection principle."
Id. at 225.
[
Footnote 17]
Since the Due Process Clause appears in both the Fifth and
Fourteenth Amendments, whereas the Equal Protection Clause does
not, it is quite clear that the primary office of the latter
differs from, and is additive to, the protection guaranteed by the
former.
[
Footnote 18]
Bolling v. Sharpe, 347 U. S. 497;
Yu Cong Eng v. Trinidad, 271 U. S. 500.
[
Footnote 19]
In that case, we did not reach the question whether New York's
citizenship restriction was in conflict with Congress'
comprehensive regulation of immigration and naturalization,
see 413 U.S. at
413 U. S. 646,
where we cited
Graham v. Richardson, 403 U.S. at
403 U. S.
376-380, and we were careful to avoid intimating any
view on the question raised in the case now before us. We
stated:
"We are aware that citizenship requirements are imposed in
certain aspects of the federal service.
See 5 U.S.C.
§3301; Exec.Order No. 10577, 19 Fed.Reg. 7521, § 2.1 (1954); 5 CFR
§§ 338.101, 302.203(g) (1973); and, for example, Treasury, Postal
Service, and General Government Appropriation Act, 1972, § 602,
Pub.L. 92-49, 85 Stat. 122, and Public Works Appropriations Act,
1971, § 502, Pub.L. 91-439, 84 Stat. 902. In deciding the present
case, we intimate no view as to whether these federal citizenship
requirements are or are not susceptible of constitutional
challenge.
See Jalil v. Hampton, 148 U.S.App.D.C. 415, 460
F.2d 923,
cert. denied, 409 U.S. 887 (1972); Comment,
Aliens and the Civil Service: A Closed Door?, 61 Geo.L.J. 207
(1972)."
413 U.S. at
413 U. S. 646
n. 12.
[
Footnote 20]
It should, of course, be noted that, in
Sugarman, we
merely held that the flat ban on the employment of aliens in
positions that had little if any relation to a State's legitimate
interests could not withstand scrutiny under the Equal Protection
Clause, and we were careful to point out that the holding did not
preclude individualized determinations that particular persons
could be refused employment on the basis of noncitizenship, or that
citizenship could be required as a qualification for appropriately
defined classes of positions.
See id. at
413 U. S.
646-647.
[
Footnote 21]
It is important to note that the authority to control
immigration is not only vested solely in the Federal Government,
rather than the States,
see Truax v. Raich, 239 U. S.
33,
239 U. S. 42,
but also that the power over aliens is of a political character,
and therefore subject only to narrow judicial review.
See Fong
Yue Ting v. United States, 149 U. S. 698,
149 U. S. 713,
where Mr. Justice Gray, writing for the Court, stated:
"The power to exclude or to expel aliens, being a power
affecting international relations, is vested in the political
departments of the government, and is to be regulated by treaty or
by act of Congress, and to be executed by the executive authority
according to the regulations so established, except so far as the
judicial department has been authorized by treaty or by statute, or
is required by the paramount law of the Constitution, to
intervene."
[
Footnote 22]
Some of these disadvantages stem directly from the Constitution
itself,
see Sugarman v. Dougall, 413 U.S. at
413 U. S.
651-653 (REHNQUIST, J., dissenting). The legitimacy of
the delineation of the affected class buttresses the conclusion
that it is "a
discrete and insular' minority," see In re
Griffiths, 413 U.S. at 413 U. S. 721
and, of course, is consistent with the premise that the class is
one whose members suffer special disabilities.
[
Footnote 23]
See Board of Regents v. Roth, 408 U.
S. 564,
408 U. S.
573-574, and cases cited.
See also the
statement for the Court by Mr. Justice Hughes in
Truax v.
Raich, supra, a case dealing with the employment opportunities
of aliens:
"It requires no argument to show that the right to work for a
living in the common occupations of the community is of the very
essence of the personal freedom and opportunity that it was the
purpose of the Amendment to secure. . . . If this could be refused
solely upon the ground of race or nationality, the prohibition of
the denial to any person of the equal protection of the laws would
be a barren form of words."
239 U.S. at
239 U. S.
41.
[
Footnote 24]
We note, however, that the petitioners do not rely on the
District Court's reasoning that the regulation might be justified
as serving the economic security of United States citizens. Our
discussion of the "special public interest" doctrine in
Sugarman v. Dougall, supra at
413 U. S.
643-645, no doubt explains the petitioners' failure to
press this argument in this case. We have no occasion, therefore,
to decide when, if ever, that doctrine might justify federal
legislation.
[
Footnote 25]
22 Stat. 403.
[
Footnote 26]
See Arnett v. Kennedy, 416 U.
S. 134,
416 U. S. 149;
H. Kaplan, The Law of Civil Service 1-11 (1958).
[
Footnote 27]
A companion bill introduced by Senator Dawes (S. 939) would have
expressly provided that
"appointments are open to competition to any citizen of the
United States, male or female. . . . [V]acancies shall be filled by
competitive examination open to all citizens, in conformity with
the provisions of this act. . . ."
Appendix to S.Rep. No. 576, 47th Cong., 1st Sess., 4 (1882). The
Senate Committee also eliminated, apparently as unnecessary, a
preamble that referred to the desirability of allowing "so far as
practicable all citizens" equal employment opportunities.
See S.Rep. No. 576,
supra at XII;
see
also 14 Cong.Rec. 661 (1882).
[
Footnote 28]
See, e.g., the remarks of Senator Hawley:
"Of course, it will not do to admit to examination everybody
that applies for it. There will be requirements -- anybody can
think of a few in a moment -- the applicant must be a citizen of
the United States, he must be in fair physical health, he must be
within reasonable limits as to age, he certainly must be able to
read and write."
Id. at 243.
[
Footnote 29]
It is noteworthy, however, that other grounds for exclusion from
the federal service that would normally be governed by regulation
were expressly identified in the statute itself.
See § 8,
prohibiting the employment of persons habitually using intoxicating
beverages to excess, and § 9, prohibiting the employment of members
of a family already adequately represented in public service. 22
Stat. 406.
[
Footnote 30]
Our recent opinion in
In re Griffiths noted that, from
"its inception, our Nation welcomed and drew strength from the
immigration of aliens." 413 U.S. at
413 U. S. 719.
After referring to their self-evident contributions to the social
and economic life of the country, and after reviewing the
objectionable character of any classification based on alienage, we
stated:
"Resident aliens, like citizens, pay taxes, support the economy,
serve in the Armed Forces, and contribute in myriad other ways to
our society. It is appropriate that a State bear a heavy burden
when it deprives them of employment opportunities."
Id. at
413 U. S.
722.
[
Footnote 31]
See the Instructions to Applicants Who Wish to Enter
the United States Civil Service, as reprinted on p. 83 of the
Second Report of the U.S. Civil Service Commission (1885).
[
Footnote 32]
Independent Offices Appropriation Bill (H.R. 8837, 75th Cong.,
3d Sess.).
[
Footnote 33]
83 Cong.Rec. 357.
[
Footnote 34]
Id. at 2424.
[
Footnote 35]
See House Manager's Report on the Conference on
Amendment of the Senate to H.R. 8947, H.R.Conf.Rep. No.1981, 75th
Cong., 3d Sess. (1938). The provision appeared in several
Appropriations Acts.
See 52 Stat. 148, 289, 435, 1162.
[
Footnote 36]
56 Stat. 422.
[
Footnote 37]
57 Stat.196.
[
Footnote 38]
67 Stat. 435.
[
Footnote 39]
See In re Griffiths, 413 U.S. at
413 U. S. 726
n. 18.
[
Footnote 40]
Rule XI, Civil Service Rules, promulgated Nov. 7, 1883. First
Report of the U.S. Civil Service Commission 47 (1884).
[
Footnote 41]
Rule V of the Civil Service Rules of May 6, 1896, expressly
provided: "Every applicant for examination must be a citizen of the
United States. . . ."
See Thirteenth Report of the U.S.
Civil Service Commission 57 (1897).
[
Footnote 42]
See Twentieth Report of the U.S. Civil Service
Commission 48 (1904).
[
Footnote 43]
It is, of course, clear that one need not be a citizen in order
to take in good conscience an oath to support the Constitution.
See In re Griffiths, supra at
413 U. S. 726
n. 18.
[
Footnote 44]
Exec.Order No. 458 (June 13, 1906). Prior to that amendment,
Executive Orders had been issued waiving the citizenship
requirement in specific cases because of a lack of qualified
citizens.
See, e.g., Exec.Order No. 434 (Mar. 28,
1906).
[
Footnote 45]
The relevant portions of 39 U.S.C. §1001 read as follows:
"§ 1001. Appointment and status."
"(a) Except as otherwise provided in this title, the Postal
Service shall appoint all officers and employees of the Postal
Service."
"(b) Officers and employees of the Postal Service (other than
those individuals appointed under sections 202, 204, and 1001(c) of
this title) shall be in the postal career service, which shall be a
part of the civil service. Such appointments and promotions shall
be in accordance with the procedures established by the Postal
Service. The Postal Service shall establish procedures, in
accordance with this title, to assure its officers and employees
meaningful opportunities for promotion and career development and
to assure its officers and employees full protection of their
employment rights by guaranteeing them an opportunity for a fair
hearing on adverse actions, with representatives of their own
choosing."
"
* * * *"
"(e) The Postal Service shall have the right, consistent with
section 1003 and chapter 12 of this title and applicable laws,
regulations, and collective bargaining agreements -- "
"(1) to direct officers and employees of the Postal Service in
the performance of official duties;"
"(2) to hire, promote, transfer, assign, and retain officers and
employees in positions within the Postal Service, and to suspend,
demote, discharge, or take other disciplinary action against such
officers and employees;"
"(3) to relieve officers and employees from duties because of
lack of work or for other legitimate reasons;"
"(4) to maintain the efficiency of the operations entrusted to
it;"
"(5) to determine the methods, means, and personnel by which
such operations are to be conducted;"
"(6) to prescribe a uniform dress to be worn by letter carriers
and other designated employees; and"
"(7) to take whatever actions may be necessary to carry out its
mission in emergency situations."
[
Footnote 46]
Even if this conclusion were doubtful, in view of the
consequences of the rule it would be appropriate to require a much
more explicit directive from either Congress or the President
before accepting the conclusion that the political branches of
Government would consciously adopt a policy raising the
constitutional questions presented by this rule.
Cf. Peters v.
Hobby, 349 U. S. 331,
349 U. S. 345;
Ex parte Endo, 323 U. S. 283,
323 U. S.
299-300.
[
Footnote 47]
The Commission, of course, acts under the direction of the
President.
Title 5 U.S.C. §3301(1) provides:
"The President may -- "
"(1) prescribe such regulations for the admission of individuals
into the civil service in the executive branch as will best promote
the efficiency of that service;"
Title 5 U.S.C. §1302(a) provides:
"(a) The Civil Service Commission, subject to the rules
prescribed by the President under this title for the administration
of the competitive service, shall prescribe regulations for,
control, supervise, and preserve the records of, examinations for
the competitive service."
[
Footnote 48]
We find no merit in the petitioners' argument that a more
discriminating rule would inevitably breed litigation, which, in
turn, would enhance the administrative burden. For even though the
argument of administrative convenience may not support a total
exclusion, it would adequately support a rather broad
classification of positions reflecting the considered judgment of
an agency expert in personnel matters. For the classification
itself would demonstrate that the Commission had at least
considered the extent to which the imposition of the rule is
consistent with its assigned mission.
[
Footnote 49]
See 8 U.S.C. § 1103.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
concurring.
I join the Court's opinion with the understanding that there are
reserved the equal protection questions that would be raised by
congressional or Presidential enactment of a bar on employment of
aliens by the Federal Government.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE MR. JUSTICE
WHITE, and MR. JUSTICE BLACKMUN join, dissenting.
The Court's opinion enunciates a novel conception of the
procedural due process guaranteed by the Fifth Amendment, and, from
this concept, proceeds to evolve a doctrine of delegation of
legislative authority which seems to me to be quite contrary to the
doctrine established by a long and not hitherto questioned line of
our decisions. Neither of the Court's innovations is completely
without appeal in this particular case, but. even if we were to
treat the matter as an original question. I think such appeal is
outweighed by the potential mischief which the doctrine bids fair
to make in other areas of the law.
I
At the outset, it is important to recognize that the power of
the federal courts is severely limited in the areas of immigration
and regulation of aliens. As we reiterated recently in
Kleindienst v. Mandel, 408 U. S. 753,
408 U. S. 766
(1972):
"'The power of Congress to exclude aliens altogether
Page 426 U. S. 118
from the United States, or to prescribe the terms and conditions
upon which they may come to this country, and to have its declared
policy in that regard enforced exclusively through executive
officers, without judicial intervention, is settled by our previous
adjudications.'"
Quoting from
Lem Moon Sing v. United States,
158 U. S. 538,
158 U. S. 547
(1895).
It is also clear that the exclusive power of Congress to
prescribe the terms and conditions of entry includes the power to
regulate aliens in various ways once they are here.
E.g., Hines
v. Davidowitz, 312 U. S. 52,
312 U. S. 69-70
(1941). Indeed, the Court, by holding that the regulation in
question would presumptively have been valid if "expressly mandated
by the Congress,"
ante at
426 U. S. 103,
concedes the congressional power to exclude aliens from employment
in the civil service altogether if it so desires, or to limit their
participation.
This broad congressional power is, in some respects, subject to
procedural limitations imposed by the Due Process Clause of the
Fifth Amendment. If an alien subject to deportation proceedings
claims to be a citizen, he is entitled to a judicial determination
of that claim.
Ng Fun Ho v. White, 259 U.
S. 276 (1922). If he lawfully obtains tenured Government
employment, and is thereby protected against discharge except for
cause, he is entitled to a hearing before being discharged.
Arnett v. Kennedy, 416 U. S. 134
(1974);
Perry v. Sindermann, 408 U.
S. 593 (1972). But neither an alien nor a citizen has
any protected liberty interests in obtaining federal employment.
Cafeteria Workers v. McElroy, 367 U.
S. 886,
367 U. S.
896-899 (1961). Nor, in the absence of some form of
statutory tenure, is a Government employee entitled to a hearing
prior to discharge, for "government employment, in the absence of
legislation, can be revoked at the will of the appointing
officer."
Page 426 U. S. 119
Id. at
367 U. S. 896.
See also Vitarelli v. Seaton, 359 U.
S. 535 (1959).
The Court, however, seems to overlook this imitation on judicial
power in justifying judicial intervention by holding:
"The rule enforced by the Commission has its impact on an
identifiable class of persons who, entirely apart from the rule
itself, are already subject to disadvantages not shared by the
remainder of the community."
Ante at 1
426 U. S.
02.
This is a classic equal protection analysis such as formed the
basis of the Court's holding in
Sugarman v. Dougall,
413 U. S. 634,
413 U. S. 641
(1973), that States could not bar aliens from the state civil
service.
Sugarman specifically did not decide whether
similar restrictions by the Federal Government would violate equal
protection principles (as applied to the Federal Government by the
Due Process Clause of the Fifth Amendment,
Bolling v.
Sharpe, 347 U. S. 497
(1954)).
However, while positing an equal protection problem, the Court
does not rely on an equal protection analysis, conceding that
"overriding national interests may provide a justification for a
citizenship requirement in the federal service even though an
identical requirement may not be enforced by a State."
Ante at
426 U. S. 101.
Thus, the Court seems to agree that the Equal Protection Clause
does not provide a basis for invalidating this denial of federal
civil service employment. The Court instead inexplicably melds
together the concepts of equal protection and procedural and
substantive due process to produce the following holding:
"The added disadvantage resulting from the enforcement of the
rule -- ineligibility for employment in a major sector of the
economy -- is of sufficient significance to be characterized as a
deprivation of
Page 426 U. S. 120
an interest in liberty. Indeed, we deal with a rule which
deprives a discrete class of persons of an interest in liberty on a
wholesale basis. By reason of the Fifth Amendment, such a
deprivation must be accompanied by due process."
Ante at
426 U. S.
102-103 (footnote omitted).
The meaning of this statement in the Court's opinion is not
immediately apparent. As already noted, there is no general
"liberty" interest in either acquiring federal employment or, in
the absence of a statutory tenure, in retaining it, so that the
person who is denied employment or who is discharged may insist
upon a due process hearing.
Truax v. Raich, 239 U. S.
33,
239 U. S. 41
(1915), is cited by the Court to support the proposition that there
is a "liberty" interest at stake here. But to the extent that the
holding of that case remains unmodified by
Cafeteria Workers,
supra, it deals with a substantive liberty interest which may
not be arbitrarily denied by legislative enactment; that interest
is closely akin to the interest of the aliens asserted in Sugarman,
supra, and
In re Griffiths, 413 U.
S. 717 (1973). Since the Court declines to pass upon the
claim asserted by respondents based upon those cases, it is
difficult to see how
Truax is relevant to its
analysis.
There is a liberty interest in obtaining public employment which
is protected against procedural deprivation in certain
circumstances, as the Court's citation to
Board of Regents v.
Roth, 408 U. S. 564,
408 U. S.
573-574 (1972),
ante at
426 U. S. 102
n. 23, indicates. But the cases cited in that passage from
Roth, cases such as
Schware v. Board of Bar
Examiners, 353 U. S. 232
(1957), and
Willner v. Committee on Character,
373 U. S. 96
(1963), are distinguishable from the present case in at least two
respects. In the first place they were both efforts by States, not
to deny public employment, but to go further
Page 426 U. S. 121
and proscribe the right to practice one's chosen profession in
the private sector of the economy. Even more importantly, the vice
found in each of those cases was the failure of the State to grant
a "full prior hearing," 408 U.S. at
408 U. S.
574.
But in the case presently before the Court, there is simply no
issue which would require a hearing in order to establish any
matter of disputed fact. All of the respondents freely concede that
they are aliens. Their claim is not that they were entitled to a
hearing in order to establish the fact that they were citizens, or
to establish some other relevant fact; indeed, they request no
hearing for any purpose. Petitioners assert that, due to
respondents' alienage, they are barred from federal employment, and
respondents simply contend that they may not be.
Yet the Court does not decide this issue, but proceeds instead
to hold that procedural due process includes not only a shield
against arbitrary action, but a scalpel with which one may dissect
the administrative organization of the Federal Government.
"When the Federal Government asserts an overriding national
interest as justification for a discriminatory rule which would
violate the Equal Protection Clause if adopted by a State, due
process requires that there be a legitimate basis for presuming
that the rule was actually intended to serve that interest."
Ante at
426 U. S.
103.
But the "overriding national interest" asserted by the
petitioners is not a specific interest in excluding these
particular aliens from the civil service, but a general interest in
formulating policies toward aliens.
See Harisiades v.
Shaughnessy, 342 U. S. 580
(1952). As such, it is not necessary for the petitioners to
demonstrate why they chose to exclude aliens from the civil
service.
Page 426 U. S. 122
To require them to do so is to subject the Government to the
same type of equal protection analysis to which the States are
subject under
Sugarman v. Dougall, supra, a result which
the Court specifically abjures.
Ante at
426 U. S.
100-101. What the Court seems to do is to engraft
notions of due process onto the case law from this Court dealing
with the delegation by Congress of its legislative authority to
administrative agencies.
In two cases decided in the October Term, 1934, the Court held
that Congress "is not permitted to abdicate or to transfer to
others the essential legislative functions with which it is . . .
vested" by Art. I, §1, of the Constitution.
Schechter Corp. v.
United States, 295 U. S. 495,
295 U. S. 529
(1935).
Panama Rfg. Co. v. Ryan, 293 U.
S. 388 (1935). Nothing in either of those opinions, the
only cases in which delegations to administrative agencies have
been struck down, suggested any reliance upon the Due Process
Clause of the Fifth Amendment, and it seems a fair statement to say
that the Court has not seen fit during the 40 years following these
decisions to enlarge in the slightest their relatively narrow
holdings.
Not only is such reliance unjustified by prior decisions of this
Court as to the scope of the due process guarantee, but it flies in
the face of those cases which hold that the manner in which
policies concerning aliens are made within the political branches
of the government is not subject to judicial scrutiny.
Kleindienst v. Mandel, 408 U. S. 753
(1972);
Galvan v. Press, 347 U. S. 522,
347 U. S. 531
(1954). [
Footnote 2/1]
Page 426 U. S. 123
II
The sole ground by which such procedures may properly be
challenged is to argue that there was an improper delegation of
authority, which has not previously been thought to depend upon the
procedural requirements of the Due Process Clause.
The Court, while not shaping its argument in these terms, seems
to hold that the delegation here was faulty. Yet it seems to me too
clear to admit of argument that, under the traditional standards
governing the delegation of authority, the Civil Service Commission
was fully empowered to act in the manner in which it did in this
case.
Congress, in the Civil Service Act, 5 U.S.C. § 3301, delegated
to the President the power to
"(1) prescribe such regulations for the admission of individuals
into the civil service in the executive branch as will best promote
the efficiency of that service; [and]"
"(2) ascertain the fitness of applicants as to age, health,
character, knowledge, and ability for the employment sought. . . .
[
Footnote 2/2]"
The President, acting under this grant of authority as well as
the "authority vested in [him] by the Constitution," promulgated
Executive Order No. 10,577, 3 CFR 218 (1951958 Comp.), in which he
authorized the Civil Service Commission
"to establish standards with respect to citizenship, age,
education . . . and for residence or other requirements which
applicants must meet to be admitted to or rated in
examinations."
Id. § 2.1(a), p. 219.
Page 426 U. S. 124
Acting pursuant to this authority, the Civil Service Commission
then promulgated the regulations in question, which exclude aliens
from examination for or appointment to (except under certain
special circumstances) the civil service.
Both Congress and the President thus took a power which they
possessed and, instead of exercising it directly, chose to delegate
it. This is the process by which all federal regulations are
promulgated, and to forbid it would be to necessarily dismantle the
entire structure of the Executive Branch. But the majority does not
challenge the procedure as to all cases. Rather, the challenge
seems to be leveled only at policies which "rais[e] . . .
constitutional questions."
Ante at
426 U. S. 113
n. 46. In those cases, it becomes necessary for the agency, which
was concededly acting within the scope of its delegated power, to
provide reasons which will justify its actions in the eyes of the
courts.
But, as previously discussed, such a holding overlooks the basic
principle that a decision to exclude aliens from the civil service
is a political decision reserved to Congress, the wisdom of which
may not be challenged in the courts. Once it is determined that the
agency in question was properly delegated the power by Congress to
make decisions regarding citizenship of prospective civil servants,
then the reasons for which that power was exercised are as
foreclosed from judicial scrutiny as if Congress had made the
decision itself. The fact that Congress has delegated a power does
not provide a back door through which to attack a policy which
would otherwise have been immune from attack. [
Footnote 2/3]
Page 426 U. S. 125
For this Court to hold,
ante at
426 U. S. 114,
that the agency chosen by Congress, through the President, to
effectuate its policies, has "no responsibility" in that area is to
interfere in an area in which the Court itself clearly has "no
responsibility": the organization of the Executive Branch.
Congress, through the President, obviously
gave
responsibility in this area to the Civil Service Commission. The
wisdom of that delegation is not for us to evaluate. Finally, I
note that, though there is no requirement that it do so, it would
appear that, contrary to the Court's assertion, Congress has in
fact spoken directly to this issue. In § 502 of the Public Works
for Water, Pollution Control, and Power Development and Atomic
Energy Commission Appropriation Act, 1970, 83 Stat. 336 (discussed
by the Court,
ante at
426 U. S.
93-94), Congress provided that no compensation will be
paid to any employee of the Government who is not (1) a citizen,
(2) "a person in the service of the United States on the date of
enactment of this Act, who, being eligible for citizenship, had
filed a declaration of intention to become a citizen" or (3) a
person who "owes allegiance to the United States."
Since respondents are not citizens, the question arises as to
which of the other categories they fit into. The effective date of
the Act was December 11, 1969. Yet, according to the record, none
of the respondents was employed until August, 1970, and one, Lum,
was never employed by the Government.
Page 426 U. S. 126
At the time of their discharge, none of the respondents had
declared their loyalty to the United States. While it is not clear
what it means to "owe allegiance," it must mean something, and
there has been no assertion by respondents that they qualified.
Indeed, in June, 1971, after the litigation was begun, Mow Sun Wong
and Sing Hung Mok filed affidavits with the District Court
asserting: "I owe allegiance to the United States." This would seem
to imply that, at the time of their discharge, they did not qualify
under the statute.
III
Since I do not believe that the Court is correct in concluding
that the regulation promulgated by the Civil Service Commission is
invalid because of any lack of authority in the Commission to
promulgate the rule, I must address the question of whether "the
national interests" identified by the petitioners would adequately
support a "determination . . . to exclude all noncitizens from the
federal service."
Ante at
426 U. S. 116.
This question was saved in both
Sugarman v. Dougall,
413 U. S. 634
(1973), and in
In re Griffiths, 413 U.
S. 717 (1973), and I agree with the Court that
"the paramount federal power over immigration and naturalization
forecloses a simple extension of the holding in
Sugarman
as decisive of this case."
Ante at
426 U. S.
100.
"For reasons long recognized as valid, the responsibility for
regulating the relationship between the United States and our alien
visitors has been committed to the political branches of the
Federal Government."
Mathews v. Diaz, ante at
426 U. S.
81.
"[A]ny policy toward aliens is vitally and intricately
interwoven with contemporaneous policies in regard to the conduct
of foreign relations, the war power, and the maintenance of a
republican form of government.
Page 426 U. S. 127
Such matters are so exclusively entrusted to the political
branches of government as to be largely immune from judicial
inquiry or interference."
Harisiades v. Shaughnessy, 342 U.S. at
342 U. S.
588-589, quoted in
Mathews v. Diaz, ante at
426 U. S. 81 n.
17.
See also Kleindienst v. Mandel, 408 U.S. at
408 U. S.
765-767;
Fong Yue Ting v. United States,
149 U. S. 698,
149 U. S.
711-713 (1893).
I conclude, therefore, that Congress, in the exercise of its
political judgment, could have excluded aliens from the civil
service. The fact that it chose, in a separate political decision,
to allow the Civil Service Commission to make this determination
does not render the governmental policy any less "political," and,
consequently, does not render it any more subject to judicial
scrutiny under the reasoning of
Diaz, ante p.
426 U. S. 67. The
regulations here, enforced without question for nearly a century,
do not infringe upon any constitutional right of these respondents.
I would therefore reverse the judgment of the Court of Appeals.
[
Footnote 2/1]
In
Galvan, the Court held that congressional policies
"pertaining to the entry of aliens and their right to remain here
are peculiarly concerned with the political conduct of government."
347 U.S. at
347 U. S. 531.
As such, the only judicial review of those policies is to insure
that the Government has respected the demands of procedural due
process not whether the policies themselves are constitutionally
valid.
[
Footnote 2/2]
Also, 5 U.S.C. §1302 directly authorized the Civil Service
Commission, subject to rules prescribed by the President, to
"prescribe regulations for . . . examinations for the competitive
service."
[
Footnote 2/3]
In
Ludecke v. Watkins, 335 U.
S. 160 (1948), the Court approved a delegation of
authority from Congress through the President to the Attorney
General to deport any "alien enemies" whom the Attorney General
deemed to be "dangerous to the public peace and safety of the
United States." Presidential Proclamation No. 2655, 59 Stat. 870
(1945). The Court held that the
"Attorney General was the President's voice and conscience. A
war power of the President not subject to judicial review is not
transmuted into a judicially reviewable action because the
President chooses to have that power exercised within narrower
limits than Congress authorized."
335 U.S. at
335 U. S.
165-166.