|Hampton v. Mow Sun Wong
[ Stevens ]
[ Brennan ]
[ Rehnquist ]
Hampton v. Mow Sun Wong
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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.
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, 766 (1972):
"The power of Congress to exclude aliens altogether [p118] 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, 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, 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 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, 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." [p119] Id. at 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 102.
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, 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 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 [p120] 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 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, 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, 573-574 (1972), ante at 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 [p121] 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 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 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. [p122] 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 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, 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, 531 (1954). [n1] [p123]
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. . . . [n2]
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. [p124]
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 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. [n3] [p125]
For this Court to hold, ante at 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 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. [p126]
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.
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 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 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 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. [p127] 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 588-589, quoted in Mathews v. Diaz, ante at 81 n. 17. See also Kleindienst v. Mandel, 408 U.S. at 765-767; Fong Yue Ting v. United States, 149 U.S. 698, 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. 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.
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 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.
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."
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.