national interest to impose the requirement that the CSC adopted; but it rejected such an action as simply a CSC determination.

Five aliens, lawfully and permanently residing in the United States brought the litigation to challenge the validity of the CSC regulation which excludes all persons except U.S. citizens and persons owing permanent allegiance to the United States from employment in most government positions. Each of the five had been denied Federal employment solely because of alienage. The U.S. District Court for the Northern District of California held that the CSC's discrimination against aliens was constitutional. Four of the five plaintiffs appealed, and the Ninth Circuit Court of Appeals reversed, holding the regulation violative of the Due Process Clause of the Fifth Amendment. In doing so, it took note of Sugarman v. Dougall, 413 U.S. 634 (1973) and In re Griffiths, 413 U.S. 717 (1973), where the Supreme Court had held unconstitutional State laws excluding aliens from certain types of State employment (in Sugarman) and from the practice of law (in Griffiths). See the 1974 Digest, pp. 89-91. The Chairman and the Commissioners of the CSC petitioned for certiorari.

The majority opinion in the Supreme Court, delivered by Mr. Justice John P. Stevens, stated that while overriding national interest 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. The opinion stated:

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 . . .

While noting that Congress in certain appropriation acts has imposed limitations on the classes of employees who may receive compensation from the Federal Government and by various Presidents in Executive orders, the Court said neither of these could be construed to evidence either approval or disapproval of the CSC regulation. The opinion concluded:

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 Sugarmar. 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 Congress and the

President, implemented by the Immigration and Naturalization Service acting under the Attorney General [see 8 U.S.C. 1103], 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 . . .

The CSC regulation declared invalid by the Supreme Court was at 5 CFR 338.101(a).

President Ford issued Executive Order 11935 on September 2, 1976, barring the employment of aliens in the Federal competitive service except as determined to be in the national interest or necessary to promote efficiency in specific cases or circumstances. Civil Service Rule VII (5 Code of Federal Regulations Part 7) was amended by adding the following new section:

SECTION 7.4 Citizenship.

(a) No person shall be admitted to competitive examination unless such person is a citizen or national of the United States. (b) No person shall be given any appointment in the competitive service unless such person is a citizen or national of the United States.

(c) The Commission may, as an exception to this rule and to the extent permitted by law, authorize the appointment of aliens to positions in the competitive service when necessary to promote the efficiency of the service in specific cases or for temporary appointments.

In identical letters to the Speaker of the House of Representatives and the President of the Senate, the President explained the action as follows:

Pursuant to the authority vested in him by the Constitution and section 3301 of title 5 and section 301 of title 3 of the United States Code, the President authorized the United States Civil Service Commission to establish standards with respect to citizenship for employment in the competitive service (Executive Order No. 10577, as amended, 5 CFR Part 2). Thereafter, the Commission prohibited generally the appointment of aliens to positions in the competitive service (5 CFR 338.101).

The Supreme Court of the United States has recently held that the Civil Service Commission's general prohibition against the employment of aliens is violative of the due process clause of the Fifth Amendment to the Constitution (Hampton v. Mow Sun Wong, No. 73-1596, June 1, 1976).

In its decision, the Court stated that either the Congress or the President might issue a broad prohibition against the employment of aliens in the civil service, but held that neither the Congress nor the President had mandated the general prohibition contained in the regulations of the Commission.

I have concluded that it is in the national interest to preserve the longstanding policy of generally prohibiting the employment of aliens from positions in the competitive service, except where the

efficiency of the service or the national interest dictate otherwise in specific cases or circumstances. It is also my judgment that it would be detrimental to the efficiency of the civil service, as well as contrary to the national interest, precipitously to employ aliens in the competitive service without an appropriate determination that it is in the national interest to do so. Therefore, I am issuing an Executive order which generally prohibits the employment of aliens in the competitive service.

The rights of citizens and aliens are affected by existing statutes which often discriminate between citizens and categories of aliens with respect to various rights, duties, and benefits. Those statutes pertaining to the Federal employment of aliens further discriminate as to specific jobs, agencies, or the nationality of aliens. I am also aware that many members of the Congress have recently sponsored legislation which would categorically prohibit the Federal employment of aliens, a broader prohibition than the various existing statutory restrictions of the limitations which I have mandated.

In this regard, I am mindful that the Congress has the primary responsibility with respect to the admission of aliens into, and the regulation of the conduct of aliens within, the United States.

While I am exercising the constitutional and statutory authority vested in me as President, a recognition of the specific constitutional authority vested in the Congress prompts me to urge that the Congress promptly address these issues.

Fed. Reg., Vol. 41, No. 173, Sept. 3, 1976, pp. 37301-37304. See also H. Doc. 94-600, 94th. Cong., 2d Sess.

State and Territorial Laws

The Supreme Court on February 25, 1976, in De Canas v. Bica, 424 U.S. 351 (1976), unanimously upheld the constitutionality of a California statute that made it unlawful for an employer to "knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers."

The decision came in a case brought by migrant farm workers against farm labor contractors alleging that they had been refused continued employment due to a surplus of labor resulting from the contractors' knowing employment of illegal alien immigrants. The California Superior Court, in an unreported decision, dismissed the complaint on the grounds grounds that that the California statute unconstitutionally encroached on Federal immigration law. The California Court of Appeal affirmed on the ground that the California statute was unconstitutional because "in the area of immigration and naturalization, congressional power is exclusive." 40 Cal. App. 3d 976 (1974).

The Supreme Court reversed, holding that although the power to

regulate immigration is an exclusive Federal power, "the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised." The opinion continued:

In this case, California has sought to strengthen its economy by adopting Federal standards in imposing criminal sanctions against State employers who knowingly employ aliens who have no Federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. . . .

On the question of preemption on the basis of congressional intent to occupy the field, the Supreme Court found that the California statute was clearly within the State's police power to regulate the employment relationship so as to protect workers within the State; it was not to be presumed that Congress, in enacting the Immigration and Naturalization Act, intended to oust State authority to regulate the employment relationship covered by the California statute in a manner consistent with pertinent Federal laws, absent any showing of such intent.

However, the Court remanded the case to the California Court of Appeal to determine whether specific aspects of the California statute interfere with "the accomplishment and execution of the full purposes and objectives of Congress."

Action was brought in Surmeli v. State of New York, 412 F. Supp. 394 (1976), by resident alien physicians for judgments declaring unconstitutional a New York statute and rules and regulations promulgated thereunder which required that a physician, to be licensed to practice medicine in New York, must either be a citizen of the United States or file a declaration of intent to become a citizen and which provided for termination of license upon an alien physician's failure to become a citizen within ten years of licensure.

On April 7, 1976, the U.S. District Court for the Southern District of New York held that the State's requirement of citizenship as a condition of continued licensure after it had already found the alien physician qualified and licensed him to practice bore no logical relationship to his continued professional competence. It ruled that the statute and rules and regulations thereunder unconstitutional as unlawful discrimination against resident aliens in violation of the equal protection clause of the Fourteenth Amendment.

were

The Court stated that the issue presented was put at rest in In re Griffiths, 413 U.S. 717 (1973), where the Supreme Court held

unconstitutional Connecticut's exclusion of aliens from admission to practice law. It rejected the State's argument that the "rational relationship test" is the standard to be applied in determining constitutionality, and added:

a physician's commitment to the ancient and universal oath of Hippocrates, rather than a political commitment to the United States, is more likely to secure his continued dedication to the interests of his patients and the welfare of the community at large. A physician's participation in political affairs has no bearing on his dedication to his patients' concern. There is not the slightest link between a physician's citizenship and his competency as a physician or surgeon.

The State, of course, has a substantial interest to assure that only those who are professionally and morally qualified minister to the needs of the mentally and physically ill. But whether the rational relationship test, as the State urges, or the compelling or overriding State interest test is the proper standard, the conclusion is compelled that the State's requirement of citizenship as a condition of continued licensure after it has already found an alien physician qualified and licensed him to practice his profession bears no logical relationship to his continued professional competence and thus lacks a rational basis. . . Thus the instant case is even stronger than In re Griffiths.

In C. D. R. Enterprises v. Board of Education of the City of New York, 412 F. Supp. 1164 (1976), affirmed by Supreme Court January 10, 1977 (45 U.S.L.W. 3455), sub nom. Lefkowitz v. C.D.R. Enterprises, the U.S. District Court for the Eastern District of New York, on March 24, 1976, held that insofar as section 222 of the New York Labor Law granted a preference in employment in public construction projects to citizens over aliens who were lawfully admitted residents, it violated the equal protection clause of the Fourteenth Amendment as well as the supremacy clause of the U.S. Constitution. To the extent of that preference, the Court enjoined enforcement of the New York statute and regulations under it.

Plaintiffs were painting contractors who employed lawfully admitted resident aliens and had been threatened with cancellation of public contracts on that ground. The Court granted their request for an injunction against cancellation of the contracts. The District Court's opinion stated, in part:

The lawfully admitted resident alien who is denied employment because a citizen is preferred is almost as much the object of discrimination as the resident alien who is denied the right to employment at all. He has been classified as a person who need not receive the equal protection of the laws because of his status. Yet a