Imagini ale paginilor
PDF
ePub

ment interest, but, rather, that "when the Federal government seeks to sustain a rule discriminating against noncitizens in a manner which would violate equal protection if adopted by a state, it must demonstrate that the rule substantially furthers important Federal interests in the regulation of immigration and naturalization." 435 F. Supp. 37, 44. The Court then discussed the important Federal interests it found "in providing an incentive for aliens to become naturalized and in providing Congress or the President with the ability to use eligibility for Federal employment as a foreign policy tool." These interests, it said, were "substantially furthered" by, and were thus sufficient to uphold, the classification scheme set out in 31 U.S.C. 699b.

The plaintiff was apparently a citizen of China who had come to the United States as a student in 1970 and had later become a lawful permanent resident alien of the United States. On May 29, 1980, she had been offered Federal employment in an "excepted", non-civil service position; agency officials withdrew the offer several hours after making it, upon learning of her non-citizen status.

The plaintiff filed a complaint on June 4, 1980, alleging breach of contract and violation of her rights to equal protection and due process. She also sought preliminary injunctive relief to prohibit the defendants from hiring any person other than herself for the position in question, which was denied at a hearing on June 10, 1980.

Municipal Regulation

Ramirez v. Sloss, 615 F.2d 163 (5th Cir. 1980), presented an evidentiary issue, resolved by the trial court in favor of the defendant, the City Manager of the City of Brownsville, Texas. On a suit brought by Ramirez, individually and as a class representative, under the Civil Rights Act of 1866 (42 U.S.C. 1981), the Civil Rights Act of 1870 (42 U.S.C. 1983), and the Ku Klux Klan Act (42 U.S.C. 1985(3)), the district court held that a citizen preference provision in a city personnel manual was unconstitutional, but accepted the city's defense that it had not followed the provision, admittedly illegal, in the past and had rejected Ramirez' job application for a justifiable nondiscriminatory reason-in effect, his comportment. Ramirez had applied for a job as a laborer.

On April 7, 1980, the United States Court of Appeals for the Fifth Circuit reversed and remanded. It held that the factual finding of nonapplication of the citizen preference policy to Ramirez was "clearly erroneous". It also held that Ramirez had proven a prima facie case of employment discrimination under 42 U.S.C. 1981 and 1983, which the City had failed to rebut. It was unnecessary, Circuit Judge Bryan Simpson said, to discuss whether Ramirez had met the four criteria set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 to establish a prima facie case of employment discrimination under the Civil Rights Act of 1964: (1) that the plaintiff is a member of a protected minority; (2) that he applied and was quali

fied for a job for which the employer sought applicants; (3) that he was rejected; and (4) that the employer continued to seek applicants from persons with plaintiff's qualifications after plaintiff was rejected.

Evidence that the City was not hiring when Ramirez was rejected was sufficient, the Court said, to meet its rebuttal burden of proving a valid nondiscriminatory reason for the refusal to hire. When Ramirez proved, however, that eight laborers were hired after he applied, the City failed to introduce evidence to support its rebuttal claim that the eight laborers hired afterwards had been ahead of Ramirez on a waiting list.

The district court was directed on the remand to clarify its findings concerning the class and to award appropriate additional class relief, if warranted.

Social Security

Totalization Agreements

On February 1, 1980, President Carter transmitted to the Congress for review, in accordance with section 233(e)(1) of the Social Security Act, as added by the Social Security Amendments of 1977, Public Law 95-216, approved December 20, 1977, 91 Stat. 1509, 1538, 42 U.S.C. 433(e)(1), the Agreement between the United States and the Swiss Confederation on Social Security and the Final Protocol thereto, both signed at Washington on July 18, 1979, and the Administrative Agreement for the Implementation of the Agreement on Social Security of July 18, 1979, signed at Bern on December 20, 1979.

The President transmitted at the same time a report prepared by the Department of Health, Education and Welfare, explaining the provisions of the Agreements:

The agreement would eliminate dual coverage, the situation that now exists in some cases when a national of one country works in the other country and is covered under and required to pay contributions to the social security systems of both countries simultaneously for the same work. In addition, the agreement would eliminate situations where workers fail to qualify for benefits merely because they have divided their careers between the two countries.

An administrative agreement for the implementation of the principal agreement is also being submitted for congressional review together with the principal agreement. The administrative agreement, which was signed on December 20, 1979, establishes a number of principles which would serve as the basis for developing operating procedures.

MAIN PROVISIONS OF THE AGREEMENT

Section 233(c)(1) of the Social Security Act requires that international agreements concluded pursuant to that section provide for the elimination of dual coverage of the same work under the social security systems of the United States and the other country party to the agreement, and for the totalization of credits earned by a worker under the two systems for benefit eligibility purposes. In addition, the law requires that when social security benefit eligibility is established on the basis of totalized credits the amount of the benefit payable under title II be prorated based on the proportion of the worker's periods of coverage completed under that title to the combined total in both countries. The principal and administrative agreements include these required provisions.

H.R. Doc. 96-261, 96th Cong., 2d sess. (1980).

The United States-Swiss Agreement on Social Security, Final Protocol, and Administrative Agreement are at TIAS 9830; 32 UST 2165, 2211; entered into force, Nov. 1, 1980.

In regard to totalization agreements, see, further, the 1979 Digest, pp. 359-368. As of Jan. 1, 1986, totalization agreements were in force between the United States and: (1) Italy (TIAS 9058; 29 UST 4263; entered into force, Nov. 1, 1978; see, also, the 1978 Digest, pp. 306-317), as supplemented by agreement signed Apr. 17, 1984 (H.R. Doc. 99-36, 99th Cong., 1st sess. (1985); entered into force, Jan. 1, 1986); (2) the Federal Republic of Germany (TIAS 9542; 30 UST 6099; entered into force, Dec. 1, 1979); (3) Belgium (TIAS ; entered into force, July 1, 1984); (4) Canada (TIAS ; entered into force, Aug. 1, 1984); (5) Norway, TIAS 10818; entered into force, July 1, 1984); (6) the United Kingdom, signed Feb. 13, 1984 (H.R. Doc. 98-220, 98th Cong., 2d sess. (1984); entered into force, Jan. 1, 1985, except for Pt. III, to enter into force, Jan. 1, 1988).

The United States also concluded a totalization agreement with Sweden, May 27, 1985; see, H.R. Doc. 99-132, 99th Cong., 1st sess. (1985); TIAS ; entered into force, Jan. 1, 1987.

Deportation

Unconstitutionality of Legislative Veto Against
Suspension

Chadha v. Immigration and Naturalization Service, 634 F.2d 408 (9th Cir. 1980), aff'd, 462 U.S. 919 (1983), involved a successful challenge to the constitutionality of section 244(c)(2) of the Immigration and Nationality Act, 8 U.S.C. 1254(c)(2), pursuant to which the United States House of Representatives had passed a resolution disapproving suspension by the Attorney General of the plaintiff's deportation.

Chadha, a Kenyan native of East Indian derivation and the holder of a British passport, had conceded his deportability for overstay of student visa status, but had requested suspension of deportation pursuant to section 244(a)(1) of the Act, 8 U.S.C. 1254(a)(1). This the Service had granted, partly upon a finding of "extreme hardship" by

reason of Chadha's East Indian racial derivation, if he were deported to Kenya or to Great Britain. After the House of Representatives disapproved suspension of Chadha's deportation, the deportation proceedings were reconvened, and a final order of deportation was entered, which Chadha appealed unsuccessfully to the Board of Immigration Appeals and, afterwards, with ultimate success, to the Ninth Circuit.

Chadha had challenged the constitutionality of section 244(c)(2) before a Service special inquiry officer and before the Board of Immigration Appeals, but both had concluded that they lacked authority to decide the constitutionality of statutes. On review to the Ninth Circuit, the Immigration and Naturalization Service "agreed" that the provision was unconstitutional. The Court of Appeals requested both the House of Representatives and the Senate to file briefs amici curiae.

On December 22, 1980, the Court of Appeals decided the case in Chadha's favor, and invalidated the legislative veto provision contained in section 244(c)(2) of the Immigration and Nationality Act.

The Court rejected the procedural arguments advanced by the amici curiae: its alleged lack of jurisdiction; and the alleged nonjusticiability of Chadha's claim (on grounds of lack of standing, presentation of a nonjusticiable political question, and lack of necessary adversity between the parties-the last because of the Service's "agreement" that the legislative veto provision of section 244(c)(2) of the Immigration and Nationality Act was unconstitutional).

The Court disposed of the political question argument by reiterating the Judiciary's "prerogative . . . to adjudicate a claimed excess by a coordinate branch of its constitutional powers", in the absence of a showing of any textual commitment (by the Constitution) of such powers. The Court likewise rejected the argument of non-adversity of the parties, pointing out that regardless of the Service's opinion on the provision's unconstitutionality, if the Court upheld it, the Service would be required, as a matter of law, to execute the Court's order and deport Chadha.

After disposing of the procedural arguments, the Court then addressed the merits of the appeal. Writing for the Court, Circuit Judge Anthony M. Kennedy discussed the principles involved in the separation of powers doctrine, as well as the requirements of the Immigration and Nationality Act for suspension of deportation and the respective responsibilities of the Executive branch in administrative proceedings and of the Judiciary to review the "various substantive and procedural aspects of the Attorney General's decision, in both its legal and discretionary phases."

The Court then examined the functional impact of the legislative disapproval provision under challenge, whether "viewed as a correc

tion of judicial or executive misapplication of the statute", or as a means for Congress to share the statute's administration with the Executive, or as "the exercise of a residual legislative power to define substantive rights."

For Congress to assume the role of correcting misapplications of law, Judge Kennedy said, interfered with a central function of the Judiciary under this and other statutes, which must determine "at the conclusion of administrative proceedings, whether the Executive branch has correctly applied the statute that establishes its authority." The provision also disrupted the guarantee to aliens of the "constraints of articulated reasons and stare decisis in the interpretation of the . . . Act", the Court added, noting the absence of "procedural constraints on the ultimate Congressional decision" or of "any provision for review of Congress' legal or factual conclusions." For Congress to share in the statute's administration was also disruptive of, and unnecessary to, the "sound administration of the law", the Court ruled, because even though Executive decisions regarding the status of aliens were discretionary, they had to be exercised under a "legal standard subject to judicial interpretation and control for abuse." Judge Kennedy found that "no principled basis" had been articulated in the instant case for the reversal of the Executive's decision. Furthermore, he said, the Congress had interfered with a relation between the Executive branch and persons governed by its decisions, overriding “an administrative process that, gradually, has developed procedural protection for aliens, and one which is characterized by the general, if flexible, requirement of administrative stare decisis." The Court also referred to "examples of the conscientious partnership between the Immigration and Naturalization Service, the Attorney General, and the courts to develop procedural protections for aliens."

Rejecting the residual legislative power argument, as well, Judge Kennedy stated, in conclusion:

We cannot accept that definite, uniform, and sensible criteria governing the conferral of government burdens and benefits on individuals should be replaced by a species of nonlegislation, wherein the Executive branch becomes a sort of referee in making an initial determination which has no independent force or validity, even after review and approval by the Judiciary, save and except for the exercise of final control by the unfettered discretion of Congress as to each case. In such a world, the Executive's duty of faithful execution of the laws becomes meaningless, as the law to be executed in a given case remains tentative until after action by the Executive has ceased. The role of judicial review in determining the procedural or substantive fairness of administrative action becomes equally nugatory because ex parte influence on administrative decision-makers, once condemned, now is made the norm. Such flexibility is but the structural twin of lawless rule.

[ocr errors]
« ÎnapoiContinuă »