resident alien is surely a "person" within the meaning of the due process and equal protection clauses. Yick Wo. v. Hopkins, 118 U.S. 356, 369 (1886); Truax v. Raich, 239 U.S. 33, 39 (1915); Takahashiv. Fish & Game Commission, 334 U.S. 410, 420 (1948); Graham v. Richardson, 403 U.S. 365, 371 (1971); Sugarman v. Dougall, 413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717, 719-20 (1973). Since a lawfully admitted resident alien is a "person" within the protection of the Fourteenth Amendment, a statute which puts him in a class with less privileges than a citizen of the state requires close judicial scrutiny. Graham v. Richardson, supra, 403 U.S. at 371-72. As Mr. Justice Blackmun said in Graham, "[a]liens as a class are a prime example of a 'discrete and insular' minority. . . for whom such heightened judicial solicitude is appropriate." . . . Since the classification is invidious on its face, "close judicial scrutiny" would require us to find a compelling justification for the statute. See In re Griffiths, supra.

The Court went on to say that the Supreme Court cases cited above had implicitly overruled earlier Supreme Court cases, such as Heim v. McCall, 239 U.S. 175 (1915), and Crane v. New York, 239 U.S. 195 (1915), which had sought to justify different treatment of resident aliens on the grounds that a constitutional difference existed between a right and a privilege and that a special public interest could support a discriminatory classification. It added:

The determination of whether there is a constitutional distinction between a "preference" and an "exclusion" cannot be based on the superseded doctrine of Crane. The state has a duty to all its lawful residents, resident alien or citizen. It must try to see to it that they do not starve, that they have equal access to State public employment, as well as membership in the Bar, and that they have equal access to private employment. Truax v. Raich, supra. Its duty to reduce unemployment is as much a duty to the alien as to the citizens. . . . Discrimination against a class of "persons" (resident aliens) who are house painters has even less justification to support it than discrimination against the same class (resident aliens) for managerial positions in the civil service.

In the second ground of its opinion, the Court pointed out that the Supreme Court had held in Graham v. Richardson, supra, that the discriminatory classification by the States of lawfully resident aliens with regard to welfare violates the supremacy clause (article VI, clause 2) of the Constitution since immigration and regulation of aliens is vested exclusively in the Federal government. The same case emphasized that "aliens lawfully within this country have a right to enter and abide in any State in the Union on an equality of legal privileges with all citizens under nondiscriminatory laws." It agreed with the Court's reasoning in Sugarman, supra, in relying on the supremacy clause as well as the equal protection clause of the Fourteenth Amendment.

The District Court noted as well that in De Canas v. Bica, 424 U.S.

351 (1976) (see ante, p. 87), the Supreme Court, in upholding a California statute barring employment of aliens not entitled to lawful residence in the United States, had said, "Of course, State regulation not congressionally sanctioned that discriminates against aliens lawfully admitted to the country is impermissible if it imposes additional burdens not contemplated by Congress (emphasis added)."

District Judge Platt filed a dissenting opinion.

A Puerto Rico statute restricting the practice of engineering to U.S. citizens was held unconstitutional by the Supreme Court in Examining Board of Engineers, Architects, and Surveyors v. Flores de Otero, 426 U.S. 572 (1976), decided on June 17, 1976. The decision affirmed the ruling of the three-judge District Court for the District of Puerto Rico that it had jurisdiction under 28 U.S.C. 1343 and 1983 regarding redress for deprivation of constitutional rights.

On the merits the Court said that irrespective of whether the Fifth or the Fourteenth Amendment applied,

the statutory restriction on the ability of aliens to engage in the otherwise lawful private practice of civil engineering is plainly unconstitutional. If the Fourteenth Amendment is applicable, the Equal Protection Clause nullifies the statutory exclusion. If, on the other hand, it is the Fifth Amendment and its Due Process Clause that apply, the statute's discrimination is so egregious that it falls within the rule of Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

Mr. Justice Rehnquist dissented, saying it was possible that neither the Fifth nor the Fourteenth Amendment applied. He did not agree that the Puerto Rican statute violated either clause of the Constitution for the reasons set forth in his dissent in In re Griffiths, 413 U.S. 717 (1973). See the 1973 Digest, pp. 91-93.

State Laws

Education

In Nyquist v. Mauclet, 406 F. Supp. 1233 (1976), the U.S. District Court for the Western District of New York held on February 11, 1976, that a State law limiting financial aid for higher education to persons who are either U.S. citizens or who intend to become U.S. citizens was unconstitutional on the grounds that it denied aliens the constitutional guarantee of equal protection of the laws. The Attorney General of New York State appealed the case. On November 1, 1976, the U.S. Supreme Court granted certiorari, 45 U.S. Law Week 3321.

The questions presented for Supreme Court review include: (1) Should the law be reviewed under strict equal protection standards because it excludes some alien students from State aid for higher

education? (2) Is denial of State aid to alien students who refused naturalization reasonably or substantially related to New York's interests in distinguishing students who are proper objects of its public funds from those who are not and in expanding its political community and educating its electorate? (3) Does an alien who may, in the future, apply for a loan have standing to challenge the statute?

Ownership of Property

The Department of State replied, by note dated March 22, 1976, to a note from the Embassy of Canada in Washington reporting on an attempt by the Canadian Government to purchase a house for the consul general of Canada in Chicago, Illinois. The following is an excerpt from the Department's reply note:

According to general international law, an alien's privilege of participation in the economic life of his state of residence does not go so far as to allow him to acquire private property. The state of residence is free to bar him from ownership of property, whether movable or realty.

In the more recent treaties, the United States has not accorded nationals of foreign states the privilege of acquiring lands within American territory if such acquisition is opposed by local State law. However, the great majority of States do not prohibit acquisition of immovable property by aliens.

In the negotiating of treaties with foreign states this Government has sought a commitment of nondiscrimination by the foreign government in return for a type of "reciprocity" arrangement by which retaliation can be permitted against American States of the Union that discriminate.

The Embassy should also know, should it decide to test the Illinois law in the courts of that State, that Alien Land Laws in California, Oregon, and Montana have been successfully attacked and struck down by the Supreme Court of each of those States because of the provision of the 14th Amendment to the U.S. Constitution that no State shall "deny to any person within its jurisdiction the equal protection of the laws.'

Regulation of the ownership of land under private title is a matter of State rather than of Federal jurisdiction. .

Dept. of State File No. P76 0040-1659. Under Illinois law, an alien may acquire and hold real estate by deed, devise, or descent and may transfer, devise, or encumber it or let it pass by descent, but cannot hold title more than six years unless an infant at time of acquisition, in which event for more than six years after majority. Ch. 6, pars. 1-2, Ill. Rev. Stats., 1969.

Welfare Benefits

The U.S. Supreme Court, on June 1, 1976, in Mathews v. Diaz, 426 U.S. 67 (1976), upheld the constitutionality of 42 U.S.C. 13950(2),

which qualifies residents of the United States who are 65 or older for participation in the Medicare supplemental medical insurance program, but denies eligibility to aliens unless they have been admitted for permanent residence and have resided in the United States for five years. The District Court held that the first condition was unconstitutional for violation of the due process clause of the Fifth Amendment, and that it could not be severed from the second. The Supreme Court reversed in a unanimous decision concluding that both conditions were constitutional.

The Supreme Court opinion, by Mr. Justice Stevens, stated:

the fact that Congress has provided some welfare benefits for citizens does not require it to provide like benefits for all aliens. Neither the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests. The decision to share that bounty with our guests may take into account the character of the relationship between the alien and this country: Congress may decide that as the alien's tie grows stronger, so does the strength of his claim to an equal share of that munificence.

The real question presented by this case is not whether discrimination between citizens and aliens is permissible; rather, it is whether the statutory discrimination within the class of aliens allowing benefits to some aliens but not to others-is permissible. . .

it is unquestionably reasonable for Congress to make an alien's eligibility depend on both the character and the duration of his residence.

We may assume that the five-year line drawn by Congress is longer than necessary to protect the fiscal integrity of the program. We may also assume that unnecessary hardship is incurred by persons just short of qualifying. But it remains true that some line is essential, that any line must produce some harsh and apparently arbitrary consequences, and, of greatest importance, that those who qualify under the test Congress has chosen may reasonably be presumed to have a greater affinity to the United States than those who do not. In short, citizens and those who are most like citizens qualify. Those who are less like citizens do not.

the differences between the eligible and the ineligible are differences in degree rather than differences in the character of their respective claims. When this kind of policy choice must be made, we are especially reluctant to question the exercise of congressional judgment. In this case, since appellees have not identified a principled basis for prescribing a different standard than the one selected by Congress, they have, in effect, merely invited us to substitute our judgment for that of Congress in

deciding which aliens shall be eligible to participate in the supplementary insurance program on the same conditions as citizens. We decline the invitation.

The opinion distinguished Graham v. Richardson, 403 U.S. 365 (1971), from the present case on the grounds of the distinction between the constitutional limits on State power and the constitutional grant of power to the Federal Government. The Court pointed out, however, that its decision in Graham v. Richardson "actually supports our holding . . . that it is the business of the political branches of the Federal Government rather than that of either the States or the Federal judiciary, to regulate the conditions of entry and residence of aliens."

Adjustment of Immigration Status

In Manarolakis v. Coomey, 416 F. Supp. 532 (1976), the U.S. District Court for the District of Massachusetts held that an alien crewman was precluded from obtaining an adjustment in his immigration status under the explicit terms of section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a), and that in any case the decision of the District Director and the Board of Immigration Appeals, that the plaintiffs failed to demonstrate that their marriage was not a sham, entered into to circumvent the immigration laws, was well supported by the evidence.

The plaintiff Manarolakis had contended that his marriage to coplaintiff, a U.S. citizen, qualified him for adjustment to the status of alien relative. The plaintiffs also argued that the defendant Director had no right to deny the validity of their marriage since it had been confirmed by State law. The opinion of the Court stated, in part:

It is clearly within the authority of the I.N.S. [Immigration and Naturalization Service] to make inquiry into the marriage to the extent necessary to determine whether it was entered into for the purpose of evading the immigration laws. . . . This determination does not affect the legal validity of the marriage. The actual legal validity of the marriage is, in fact, completely irrelevant..

Apprehension of Illegal Aliens

The Supreme Court, in United States v. Martinez-Fuerte, 428 U.S. 543, decided on July 6, 1976, that the halting of vehicles by the Border Patrol at reasonably located checkpoints and the questioning of individual passengers in an effort to spot illegal aliens was a