U.S. Supreme Court Shaughnessy v. Mezei, 345
U.S. 206 (1953) Shaughnessy v. Mezei No. 139 Argued January 7-8,
1953 Decided March 16,
1953 345
U.S. 206 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus An alien resident of the United States traveled abroad and
remained in Hungary for 19 months. On his return to this country,
the Attorney General, acting pursuant to 22 U.S.C. § 223 and
regulations thereunder, ordered him permanently excluded without a
hearing. The order was based on "information of a confidential
nature, the disclosure of which would be prejudicial to the public
interest," and on a finding that the alien's entry would be
prejudicial to the public interest for security reasons. Because
other nations refused to accept him, his exclusion at Ellis Island
was continued for 21 months. A federal district court in habeas
corpus proceedings then directed his conditional parole into the
United States on bond. Held: the Attorney General's continued exclusion of the
alien without a hearing does not amount to an unlawful detention,
and courts may not temporarily admit him to the United States
pending arrangements for his departure abroad. Pp. 345 U. S.
207 -216.

															(a) In exclusion cases, the courts cannot retry the Attorney
General's statutory determination that an alien's entry would be
prejudicial to the public interest. Pp. 345 U. S.
210 -212.

															(b) Neither an alien's harborage on Ellis Island nor his prior
residence in this country transforms the administrative proceeding
against him into something other than an exclusion proceeding, and
he may be excluded if unqualified for admission under existing
immigration laws. P. 345 U. S.
213 .

															(c) Although a lawfully resident alien may not captiously be
deprived of his constitutional rights to due process, the alien in
this case is an entrant alien or "assimilated to that status" for
constitutional purposes. Kwong Hai Chew v. Colding, 344 U. S. 590 ,
distinguished. Pp. 345 U. S.
213 -214.

															(d) The Attorney General therefore may exclude this alien
without a hearing, as authorized by the emergency regulations
promulgated pursuant to the Passport Act, and need not disclose the
evidence upon which that determination rests. Pp. 345 U. S.
214 -215. Page 345 U. S. 207 (e) The alien's continued exclusion on Ellis Island does not
deprive him of any statutory or constitutional right. Pp. 345 U. S.
215 -216.

															(f) The alien's right to enter the United States depends on the
congressional will, and the courts cannot substitute their judgment
for the legislative mandate. P. 345 U. S.
216 .

															195 F.2d 964, reversed.

															In a habeas corpus proceeding, the Federal District Court
authorized the temporary admission of an alien to this country on
$5,000 bond. 101 F.
Supp. 66 . The Court of Appeals affirmed that action, but
directed reconsideration of the terms of the parole. 195 F.2d 964.
This Court granted certiorari. 344 U.S. 809. Reversed, p. 345 U. S.
216 .

															MR. JUSTICE CLARK delivered the opinion of the Court.

															This case concerns an alien immigrant permanently excluded from
the United States on security grounds but stranded in his temporary
haven on Ellis Island because other countries will not take him
back. The issue is whether the Attorney General's continued
exclusion of respondent without a hearing amounts to an unlawful
detention, so that courts may admit him temporarily to the United
States on bond until arrangements are made for his departure
abroad. After a hearing on respondent's petition for a writ of
habeas corpus, the District Court so held, and authorized his
temporary admission on $5,000 bond. [ Footnote 1 ] The Court of Appeals affirmed that action, but
directed reconsideration of the terms of the Page 345 U. S. 208 parole. [ Footnote 2 ]
Accordingly, the District Court entered a modified order reducing
bond to $3,000 and permitting respondent to travel and reside in
Buffalo, New York. Bond was posted, and respondent released.
Because of resultant serious problems in the enforcement of the
immigration laws, we granted certiorari. 344 U.S. 809.

															Respondent's present dilemma springs from these circumstances:
though, as the District Court observed, "[t]here is a certain
vagueness about [his] history," respondent seemingly was born in
Gibraltar of Hungarian or Rumanian parents and lived in the United
States from 1923 to 1948. [ Footnote
3 ] In May of that year, he sailed for Europe, apparently to
visit his dying mother in Rumania. Denied entry there, he remained
in Hungary for some 19 months, due to "difficulty in securing an
exit permit." Finally, armed with a quota immigration visa issued
by the American Consul in Budapest, he proceeded to France and
boarded the Ile de France in Le Havre bound for New York.
Upon arrival on February 9, 1950, he was temporarily excluded from
the United States by an immigration inspector acting pursuant to
the Passport Act as amended and regulations thereunder. Pending
disposition of his case, he was received at Ellis Island. After
reviewing the evidence, the Attorney General, on May 10, 1950,
ordered the temporary exclusion to be made permanent without a
hearing before a board of special inquiry, on the "basis of
information of a confidential nature, the disclosure of which would
be prejudicial to the public interest." That determination rested
on a finding that respondent's entry would be prejudicial to the
public interest for security reasons. But, thus far, all attempts
to effect respondent's departure have failed: twice he shipped Page 345 U. S. 209 out to return whence he came; France and Great Britain refused
him permission to land. The State Department has unsuccessfully
negotiated with Hungary for his readmission. Respondent personally
applied for entry to about a dozen Latin American countries, but
all turned him down. So, in June, 1951, respondent advised the
Immigration and Naturalization Service that he would exert no
further efforts to depart. In short, respondent sat on Ellis Island
because this country shut him out and others were unwilling to take
him in.

															Asserting unlawful confinement on Ellis Island, he sought relief
through a series of habeas corpus proceedings. After four
unsuccessful efforts on respondent's part, the United States
District Court for the Southern District of New York, on November
9, 1951, sustained the writ. The District Judge, vexed by the
problem of "an alien who has no place to go," did not question the
validity of the exclusion order, but deemed further "detention"
after 21 months excessive and justifiable only by affirmative proof
of respondent's danger to the public safety. When the Government
declined to divulge such evidence, even in camera, the
District Court directed respondent's conditional parole on bond.
[ Footnote 4 ] By a divided vote,
the Court of Appeals affirmed. Postulating that the power to hold
could never be broader than the power to remove or shut out, and
that to "continue an alien's confinement beyond that moment when
deportation becomes patently impossible is to deprive him of his
liberty," the court found respondent's "confinement" no longer
justifiable as a means of removal elsewhere, thus not authorized by
statute, and in violation of due process. [ Footnote 5 ] Judge Learned Hand, dissenting, took a
different view: the Attorney General's order was one of
"exclusion," Page 345 U. S. 210 and not "deportation;" respondent's transfer from ship to shore
on Ellis Island conferred no additional rights; in fact, no alien
so situated "can force us to admit him at all." [ Footnote 6 ]

															Courts have long recognized the power to expel or exclude aliens
as a fundamental sovereign attribute exercised by the Government's
political departments largely immune from judicial control. The
Chinese Exclusion Case, 130 U. S. 581 (1889); Fong Yue Ting v. United States, 149 U.
S. 698 (1893); United States ex rel. Knauff v.
Shaughnessy, 338 U. S. 537 (1950); Harisiades v. Shaughnessy, 342 U.
S. 580 (1952). In the exercise of these powers, Congress
expressly authorized the President to impose additional
restrictions on aliens entering or leaving the United States during
periods of international tension and strife. That authorization,
originally enacted in the Passport Act of 1918, continues in effect
during the present emergency. Under it, the Attorney General,
acting for the President, may shut out aliens whose "entry would be
prejudicial to the interest of the United States." [ Footnote 7 ] And he may exclude without a
hearing when the exclusion is based on confidential information
the Page 345 U. S. 211 disclosure of which may be prejudicial to the public interest.
[ Footnote 8 ] The Attorney
General, in this case, proceeded in accord with these provisions;
he made the necessary determinations and barred the alien from
entering the United States. Page 345 U. S. 212 It is true that aliens who have once passed through our gates,
even illegally, may be expelled only after proceedings conforming
to traditional standards of fairness encompassed in due process of
law. The Japanese Immigrant Case, 189 U. S.
86 , 189 U. S.
100 -101 (1903); Wong Yang Sung v. McGrath, 339 U. S. 33 , 339 U. S. 49 -50
(1950); Kwong Hai Chew v. Colding, 344 U.
S. 590 , 344 U. S. 598 (1953). But an alien on the threshold of initial entry stands on a
different footing: "Whatever the procedure authorized by Congress
is, it is due process as far as an alien denied entry is
concerned." Knauff v. Shaughnessy, supra, at 338 U. S. 544 ; Nishimura Ekiu v. United States, 142 U.
S. 651 , 142 U. S. 660 (1892). And because the action of the executive officer under such
authority is final and conclusive, the Attorney General cannot be
compelled to disclose the evidence underlying his determinations in
an exclusion case;

															"it is not within the province of any court, unless expressly
authorized by law, to review the determination of the political
branch of the Government." Knauff v. Shaughnessy, supra, at 338 U. S. 543 ; Nishimura Ekiu v. United States, supra, at 142 U. S. 660 .
In a case such as this, courts cannot retry the determination of
the Attorney General. Shaughnessy, supra, at 338 U. S. 546 ; Ludecke v. Watkins, 335 U. S. 160 , 335 U. S.
171 -172 (1948). Page 345 U. S. 213 Neither respondent's harborage on Ellis Island nor his prior
residence here transforms this into something other than an
exclusion proceeding. Concededly, his movements are restrained by
authority of the United States, and he may, by habeas corpus, test
the validity of his exclusion. But that is true whether he enjoys
temporary refuge on land, Nishimura Ekiu v. United States,
supra, or remains continuously aboard ship. United States
v. Jung Ah Lung, 124 U. S. 621 , 124 U. S. 626 (1888); Chin Yow v. United States, 208 U. S.
8 , 208 U. S. 12 (1908). In sum, harborage at Ellis Island is not an entry into the
United States. Kaplan v. Tod, 267 U.
S. 228 , 267 U. S. 230 (1925); United States v. Ju Toy, 198 U.
S. 253 , 198 U. S. 263 (1905); Nishimura Ekiu v. United States, supra, at 142 U. S. 661 .
For purposes of the immigration laws, moreover, the legal incidents
of an alien's entry remain unaltered whether he has been here once
before or not. He is an entering alien just the same, and may be
excluded if unqualified for admission under existing immigration
laws. E.g., Lem Moon Sing v. United States, 158 U.
S. 538 , 158 U. S.
547 -548 (1895); Polymeris v. Trudell, 284 U. S. 279 .

															To be sure, a lawful resident alien may not captiously be
deprived of his constitutional rights to procedural due process. Kwong Hai Chew v. Colding, 344 U.
S. 590 , 344 U. S. 601 (1953); cf. Delgadillo v. Carmichael, 332 U.
S. 388 (1947). Only the other day, we held that, under
some circumstances, temporary absence from our shores cannot
constitutionally deprive a returning lawfully resident alien of his
right to be heard. Kwong Hai Chew v. Colding, supra. Chew,
an alien seaman admitted by an Act of Congress to permanent
residence in the United States, signed articles of maritime
employment as chief steward on a vessel of American registry with
home port in New York City. Though cleared by the Coast Guard for
his voyage, on his return from four months at sea, he was
"excluded" without a hearing on security grounds. Page 345 U. S. 214 On the facts of that case, including reference to § 307(d)(2) of
the Nationality Act of 1940, we felt justified in "assimilating"
his status for constitutional purposes to that of continuously
present alien residents entitled to hearings at least before an
executive or administrative tribunal. Id. 344 U. S. 596 , 344 U. S.
599 -601. Accordingly, to escape constitutional conflict,
we held the administrative regulations authorizing exclusion
without hearing in certain security cases inapplicable to aliens so
protected by the Fifth Amendment. Id. 344 U. S.
600 .

															But respondent's history here drastically differs from that
disclosed in Chew's case. Unlike Chew, who, with full security
clearance and documentation, pursued his vocation for four months
aboard an American ship, respondent, apparently without
authorization or reentry papers, [ Footnote 9 ] simply left the United States and remained
behind the Iron Curtain for 19 months. Moreover, while § 307 of the
1940 Nationality Act regards maritime service such as Chew's to be
continuous residence for naturalization purposes, that section
deems protracted absence such as respondent's a clear break in an
alien's continuous residence here. [ Footnote 10 ] In such circumstances, we have no difficulty
in holding respondent an entrant alien or "assimilated to [that]
status" for constitutional purposes. Id. at 344 U. S. 599 .
That being so, the Attorney General may lawfully exclude respondent
without a hearing, as authorized Page 345 U. S. 215 by the emergency regulations promulgated pursuant to the
Passport Act. Nor need he disclose the evidence upon which that
determination rests. Knauff v. Shaughnessy, 338 U.
S. 537 .

															There remains the issue of respondent's continued exclusion on
Ellis Island. Aliens seeking entry from contiguous lands obviously
can be turned back at the border without more. Polymeris v.
Trudell, 284 U. S. 279 (1932). While the Government might keep entrants by sea aboard the
vessel pending determination of their admissibility, resulting
hardships to the alien and inconvenience to the carrier persuaded
Congress to adopt a more generous course. By statute, it
authorized, in cases such as this, aliens' temporary removal from
ship to shore. [ Footnote 11 ]
But such temporary harborage, an act of legislative grace, bestows
no additional rights. Congress meticulously specified that such
shelter ashore "shall not be considered a landing," nor relieve the
vessel of the duty to transport back the alien if ultimately
excluded. [ Footnote 12 ] And
this Court has long considered such temporary arrangements as not
affecting an alien's status; he is treated as if stopped at the
border. Nishimura Ekiu v. United States, 142 U.
S. 651 , 142 U. S.
661 -662 (1892); United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 263 (1905); Kaplan v Tod, 267 U. S. 228 , 267 U. S. 230 (1925).

															Thus, we do not think that respondent's continued exclusion
deprives him of any statutory or constitutional right. It is true
that resident aliens temporarily detained pending expeditious
consummation of deportation proceedings may be released on bond by
the Attorney General, whose discretion is subject to judicial
review. Carlson v. Landon, 342 U.
S. 524 . By that procedure, aliens uprooted from our
midst may rejoin the Page 345 U. S. 216 community until the Government effects their leave. [ Footnote 13 ] An exclusion proceeding
grounded on danger to the national security, however, presents
different considerations; neither the rationale nor the statutory
authority for such release exists. [ Footnote 14 ] Ordinarily, to admit an alien barred from
entry on security grounds nullifies the very purpose of the
exclusion proceeding; Congress in 1950 declined to include such
authority in the statute. [ Footnote 15 ] That exclusion by the United States plus
other nations' inhospitality results in present hardship cannot be
ignored. But, the times being what they are, Congress may well have
felt that other countries ought not shift the onus to us; that an
alien in respondent's position is no more ours than theirs.
Whatever our individual estimate of that policy and the fears on
which it rests, respondent's right to enter the United States
depends on the congressional will, and courts cannot substitute
their judgment for the legislative mandate. Harisiades v.
Shaughnessy, 342 U. S. 580 , 342 U. S.
590 -591 (1952). Reversed. [ Footnote 1 ] 101 F.
Supp. 66 (1951).

															[ Footnote 2 ]

															195 F.2d 964 (1952).

															[ Footnote 3 ]

															101 F. Supp. at 67.

															[ Footnote 4 ]

															101 F. Supp. at 67, 70; R. 26-27.

															[ Footnote 5 ]

															195 F.2d at 967, 968.

															[ Footnote 6 ] Id. 195 F.2d at 970.

															[ Footnote 7 ]

															Section 1 of the Act of May 22, 1918, c. 81, 40 Stat. 559, as
amended by the Act of June 21, 1941, c. 210, § 1, 55 Stat. 252, 22
U.S.C. § 223, provides in pertinent part:

															"When the United States is at war or during the existence of the
national emergency proclaimed by the President on May 27, 1941, or
as to aliens whenever there exists a state of war between, or
among, two or more states, and the President shall find that the
interests of the United States require that restrictions and
prohibitions in addition to those provided otherwise than by this
Act be imposed upon the departure of persons from and their entry
into the United States, and shall make public proclamation thereof,
it shall, until otherwise ordered by the President or Congress, be
unlawful --"

															"(a) For any alien to depart from or enter or attempt to depart
from or enter the United States except under such reasonable rules,
regulations, and orders, and subject to such limitations and
exceptions as the President shall prescribe. . . ."

															That authorization has been extended to cover the dates relevant
in this case. 66 Stat. 54, 57, 96, 137, 330, 332. Pursuant to that
authority, Presidential Proclamation No. 2523, 6 Fed.Reg. 5821, as
promulgated in 1941, in part provided:

															"No alien shall be permitted to enter the United States if it
appears to the satisfaction of the Secretary of State that such
entry would be prejudicial to the interests of the United States as
provided in the rules and regulations hereinbefore authorized to be
prescribed by the Secretary of State, with the concurrence of the
Attorney General."

															The Secretary of State, with the concurrence of the Attorney
General, issued applicable regulations codified as Part 175 of 8
CFR. Section 175.53 defines eleven categories of aliens whose entry
is "deemed prejudicial to the interests of the United States." That
delegation of authority has been upheld. Knauff v.
Shaughnessy, 338 U. S. 537 (1950). The regulations were ratified and confirmed by Presidential
Proclamation No. 2850, 14 Fed.Reg. 5173, promulgated August 17,
1949.

															[ Footnote 8 ]

															8 CFR § 175.57 provides:

															"§ 175.57 Entry not permitted in special cases. (a) Any
alien, even though in possession of a permit to enter, or exempted
under §§ 175.41 to 175.62, inclusive, from obtaining a permit to
enter, may be excluded temporarily if, at the time he applies for
admission at a port of entry, it appears that he is or may be
excludable under one of the categories set forth in § 175.53. The
official excluding the alien shall immediately report the facts to
the head of his department, who will communicate such report to the
Secretary of State. Any alien so temporarily excluded by an
official of the Department of Justice shall not be admitted, and
shall be excluded and deported unless the Attorney General, after
consultation with the Secretary of State, is satisfied that the
admission of the alien would not be prejudicial to the interests of
the United States. Any alien so temporarily excluded by any other
official shall not be admitted, and shall be excluded and deported,
unless the Secretary of State is satisfied that the admission of
the alien would not be prejudicial to the interests of the United
States."

															"(b) In the case of an alien temporarily excluded by an official
of the Department of Justice on the ground that he is, or may be,
excludable under one or more of the categories set forth in §
175.53, no hearing by a board of special inquiry shall be held
until after the case is reported to the Attorney General and such a
hearing is directed by the Attorney General or his representative.
In any special case, the alien may be denied a hearing before a
board of special inquiry and an appeal from the decision of that
board if the Attorney General determines that he is excludable
under one of the categories set forth in § 175.53 on the basis of
information of a confidential nature, the disclosure of which would
be prejudicial to the public interest."

															[ Footnote 9 ] See 8 U.S.C. § 210. Of course, neither a reentry
permit, issuable upon proof of prior lawful admission to the United
States, § 210(b), nor an immigration visa entitles an otherwise
inadmissible alien to entry. §§ 210(f), 202(g). An immigrant is not
unaware of this; § 202(g) directs those facts to be "printed
conspicuously upon every immigration visa." For a recent study of
entry procedures with recommendations, see Report of the
President's Commission on Immigration and Naturalization (1953), c.
10.

															[ Footnote 10 ]

															8 U.S.C. § 707; United States v. Larsen, 165 F.2d 433
(1947).

															[ Footnote 11 ]

															8 U.S.C. § 151.

															[ Footnote 12 ]

															8 U.S.C. §§ 151.

															[ Footnote 13 ]

															8 U.S.C. (Supp. V) § 156. We there noted that "the problem of
habeas corpus after unusual delay in deportation hearings is not involved in this case." 342 U.S. at 342 U. S. 546 .
(Emphasis added.)

															[ Footnote 14 ]

															8 U.S.C. § 154 permits temporary suspension of deportation of
excluded aliens whose testimony is needed on behalf of the United
States. Manifestly, respondent does not fall within that class.
While the essence of that provision is retained in § 237(d) of the
Immigration and Nationality Act of 1952, 66 Stat. 202, § 212(d)(5)
of that Act, 66 Stat. 188, vests new and broader discretion in the
Attorney General. Cf. 8 U.S.C. §§ 136(p, q),; 8 U.S.C.
(Supp. V) § 137-5(a, b). Those provisions are not now here.

															[ Footnote 15 ] See S.Rep. No. 1515, 81st Cong., 2d Sess. 643-644.

															MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS concurs,
dissenting.

															Mezei came to this country in 1923 and lived as a resident alien
in Buffalo, New York, for twenty-ive years. Page 345 U. S. 217 He made a trip to Europe in 1948, and was stopped at our shore
on his return in 1950. Without charge of or conviction for any
crime, he was for two years held a prisoner on Ellis Island by
order of the Attorney General. Mezei sought habeas corpus in the
District Court. He wanted to go to his wife and home in Buffalo.
The Attorney General defended the imprisonment by alleging that it
would be dangerous to the Nation's security to let Mezei go home
even temporarily on bail. Asked for proof of this, the Attorney
General answered the judge that all his information was "of a
confidential nature" -- so much so that telling any of it or even
telling the names of any of his secret informers would jeopardize
the safety of the Nation. Finding that Mezei's life as a resident
alien in Buffalo had been "unexceptional," and that no facts had
been proven to justify his continued imprisonment, the District
Court granted bail. The Court of Appeals approved. Now this Court
orders Mezei to leave his home and go back to his island prison to
stay indefinitely, maybe for life.

															MR. JUSTICE JACKSON forcefully points out the danger in the
Court's holding that Mezei's liberty is completely at the mercy of
the unreviewable discretion of the Attorney General. I join MR.
JUSTICE JACKSON in the belief that Mezei's continued imprisonment
without a hearing violates due process of law.

															No society is free where government makes one person's liberty
depend upon the arbitrary will of another. Dictatorships have done
this since time immemorial. They do now. Russian laws of 1934
authorized the People's Commissariat to imprison, banish, and exile
Russian citizens as well as "foreign subjects who are socially
dangerous." * Hitler's secret
police were Page 345 U. S. 218 given like powers. German courts were forbidden to make any
inquiry whatever as to the information on which the police acted.
Our Bill of Rights was written to prevent such oppressive
practices. Under it, this Nation has fostered and protected
individual freedom. The Founders abhorred arbitrary one-an
imprisonments. Their belief was -- our constitutional principles
are -- that no person of any faith, rich or poor, high or low,
native or foreigner, white or colored, can have his life, liberty
or property taken "without due process of law." This means to me
that neither the federal police nor federal prosecutors nor any
other governmental official, whatever his title, can put or keep
people in prison without accountability to courts of justice. It
means that individual liberty is too highly prized in this country
to allow executive officials to imprison and hold people on the
basis of information kept secret from courts. It means that Mezei
should not be deprived of his liberty indefinitely except as the
result of a fair open court hearing in which evidence is appraised
by the court, not by the prosecutor.

															* Decree of the Central Executive Committee and Council of
People's Commissars, U.S.S.R., 5 Nov.1934; Collection of Laws,
U.S.S.R., 1935, No. 11, Art. 84. Hazard, Materials on Soviet Law,
(194), 16. See Hazard, Reforming Soviet Criminal Law, 29
Jour.Crim.Law and Crim. 157, 168-169 (1939). See also Berman, Principles of Soviet Criminal Law, 56 Yale L.J. 803
(1947).

															MR. JUSTICE JACKSON, whom MR. JUSTICE FRANKFURTER joins,
dissenting.

															Fortunately it still is startling, in this country, to find a
person held indefinitely in executive custody without accusation of
crime or judicial trial. Executive imprisonment has been considered
oppressive and lawless since John at Runnymede, pledged that no
free man should be imprisoned, dispossessed, outlawed, or exiled
save by the judgment of his peers or by the law of the land. The
judges of England developed the writ of habeas corpus largely to
preserve these immunities from executive restraint. Page 345 U. S. 219 Under the best tradition of Anglo-merican law, courts will not
deny hearing to an unconvicted prisoner just because he is an alien
whose keep, in legal theory, is just outside our gates. Lord
Mansfield, in the celebrated case holding that slavery was unknown
to the common law of England, ran his writ of habeas corpus in
favor of an alien, an African Negro slave, and against the master
of a ship at anchor in the Thames. [ Footnote 2/1 ] I What is our case? [ Footnote 2/2 ]
In contemplation of law, I agree, it is that of an alien who asks
admission to the country. Concretely, however, it is that of a
lawful and law-biding inhabitant of our country for a quarter of a
century, long ago admitted for permanent residence, who seeks to
return home. After a foreign visit to his aged and ailing mother
that was prolonged by disturbed conditions of Eastern Europe, he
obtained a visa for admission issued by our consul, and returned to
New York. There, the Attorney General refused to honor his
documents, and turned him back as a menace to this Nation's
security. This man, who seems to have led a life of unrelieved
insignificance, must have been astonished to find himself suddenly
putting the Government of the United States in such fear that it
was afraid to tell him why it was afraid of him. He was shipped and
reshipped to France, which twice refused him landing. Great Britain
declined, and no other European country has been found willing to
open its doors to him. Twelve countries Page 345 U. S. 220 of the American Hemisphere refused his applications. Since we
proclaimed him a Samson who might pull down the pillars of our
temple, we should not be surprised if peoples less prosperous, less
strongly established, and less stable feared to take him off our
timorous hands. With something of a record as an unwanted man,
neither his efforts nor those of the United States Government any
longer promise to find him an abiding place. For nearly two years,
he was held in custody of the immigration authorities of the United
States at Ellis Island, and, if the Government has its way, he
seems likely to be detained indefinitely, perhaps for life, for a
cause known only to the Attorney General.

															Is respondent deprived of liberty? The Government answers that
he was "transferred to Ellis Island on August 1, 1950 for
safekeeping," and

															"is not being detained in the usual sense, but is in custody
solely to prevent him from gaining entry into the United States in
violation of law. He is free to depart from the United States to
any country of his choice."

															Government counsel ingeniously argued that Ellis Island is his
"refuge" whence he is free to take leave in any direction except
west. That might mean freedom, if only he were an amphibian.
Realistically, this man is incarcerated by a combination of forces
which keeps him as effectually as a prison, the dominant and
proximate of these forces being the United States immigration
authority. It overworks legal fiction to say that one is free in
law when, by the commonest of common sense, he is bound. Despite
the impeccable legal logic of the Government's argument on this
point, it leads to an artificial and unreal conclusion. [ Footnote 2/3 ] We must Page 345 U. S. 221 regard this alien as deprived of liberty, and the question is
whether the deprivation is a denial of due process of law.

															The Government, on this point, argues that "no alien has any
constitutional right to entry into the United States;" that "the
alien has only such rights as Congress sees fit to grant in
exclusion proceedings;" that "the so-alled detention is still
merely a continuation of the exclusion which is specifically
authorized by Congress;" that, since "the restraint is not
incidental to an order [of exclusion], but is itself the
effectuation of the exclusion order, there is no limit to its
continuance" other than statutory, which means no limit at all. The
Government all but adopts the words of one of the officials
responsible for the administration of this Act who testified before
a congressional committee as to an alien applicant, that "He has no
rights." [ Footnote 2/4 ] Page 345 U. S. 222 The interpretations of the Fifth Amendment's command that no
person shall be deprived of life, liberty or property without due
process of law come about to this: reasonable general legislation
reasonably applied to the individual. The question is whether the
Government's detention of respondent is compatible with these tests
of substance and procedure. II Substantive Due Process

															Substantively, due process of law renders what is due to a
strong state as well as to a free individual. It tolerates all
reasonable measures to insure the national safety, and it leaves a
large at times a potentially dangerous latitude for executive
judgment as to policies and means. [ Footnote 2/5 ]

															After all, the pillars which support our liberties are the three
branches of government, and the burden could not be carried by our
own power alone. Substantive due process will always pay a high
degree of deference to congressional and executive judgment,
especially when they concur, as to what is reasonable policy under
conditions of particular times and circumstances. Close to the
maximum of respect is due from the judiciary to the political
departments in policies affecting security and alien exclusion. Harisiades v. Shaughnessy, 342 U.
S. 580 .

															Due process does not invest any alien with a right to enter the
United States, nor confer on those admitted Page 345 U. S. 223 the right to remain against the national will. Nothing in the
Constitution requires admission or sufferance of aliens hostile to
our scheme of government.

															Nor do I doubt that due process of law will tolerate some
impounding of an alien where it is deemed essential to the safety
of the state. Even the resident, friendly alien may be subject to
executive detention without bail, for a reasonable period, pending
consummation of deportation arrangements. Carlson v.
Landon, 342 U. S. 524 . The
alien enemy may be confined or his property seized and administered
because hostility is assumed from his continued allegiance to a
hostile state. Cf. Ludecke v. Watkins, 335 U.
S. 160 ; Zittman v. McGrath, 341 U.
S. 446 , and 341 U. S. 341 U.S.
471.

															If due process will permit confinement of resident aliens
friendly in fact, because of imputed hostility, I should suppose
one personally at war with our institutions might be confined even
though his state is not at war with us. In both cases, the
underlying consideration is the power of our system of government
to defend itself, and changing strategy of attack by infiltration
may be met with changed tactics of defense.

															Nor do I think the concept of due process so paralyzing that it
forbids all detention of an alien as a preventive measure against
threatened dangers, and makes confinement lawful only after the
injuries have been suffered. In some circumstances, even the
citizen in default of bail has long been subject to federal
imprisonment for security of the peace and good behavior. [ Footnote 2/6 ] While it is usually applied
for express verbal threats, no reason is known to me why the power
is not the same in the case of threats inferred by proper
procedures from circumstances. The British, with whom due process
is a habit, if not a written Page 345 U. S. 224 constitutional dictum, permit a court in a limited class of
cases to pass a "sentence of preventive detention" if satisfied
that it is expedient for the protection of the public. [ Footnote 2/7 ]

															I conclude that detention of an alien would not be inconsistent
with substantive due process, provided -- and this is where my
dissent begins -- he is accorded procedural due process of law. III . Procedural Due Process

															Procedural fairness, if not all that originally was meant by due
process of law, is at least what it most uncompromisingly requires.
Procedural due process is more elemental and less flexible than
substantive due process. It yields less to the times, varies less
with conditions, and defers much less to legislative judgment.
Insofar as it is technical law, it must be a specialized
responsibility within the competence of the judiciary on which they
do not bend before political branches of the Government, as they
should on matters of policy which compromise substantive law.

															If it be conceded that, in some way, this alien could be
confined, does it matter what the procedure is? Only the untaught
layman or the charlatan lawyer can answer that procedures matter
not. Procedural fairness and regularity are of the indispensable
essence of liberty. Severe substantive laws can be endured if they
are fairly and impartially applied. Indeed, if put to the choice,
one might well prefer to live under Soviet substantive law applied
in good faith by our common law procedures than under our
substantive law enforced by Soviet procedural practices. Let it not
be overlooked that due process of law is not for the sole benefit
of an accused. It is the best insurance for the Government itself
against those Page 345 U. S. 225 blunders which leave lasting stains on a system of justice, but
which are bound to occur on ex parte consideration. Cf. Knauff v. Shaughnessy, 338 U.
S. 537 , which was a near miss, saved by further
administrative and congressional hearings from perpetrating an
injustice. See Knauff, The Ellen Knauff Story (New York)
1952.

															Our law may, and rightly does, place more restrictions on the
alien than on the citizen. But basic fairness in hearing procedures
does not vary with the status of the accused. If the procedures
used to judge this alien are fair and just, no good reason can be
given why they should not be extended to simplify the condemnation
of citizens. If they would be unfair to citizens, we cannot defend
the fairness of them when applied to the more helpless and
handicapped alien. This is at the root of our holdings that the
resident alien must be given a fair hearing to test an official
claim that he is one of a deportable class. Wong Yang Sung v.
McGrath, 339 U. S. 33 .

															The most scrupulous observance of due process, including the
right to know a charge, to be confronted with the accuser, to
cross-xamine informers, and to produce evidence in one's behalf, is
especially necessary where the occasion of detention is fear of
future misconduct, rather than crimes committed. Both the old
proceeding by which one may be bound to keep the peace and the
newer British "preventive detention" are safeguarded with full
rights to judicial hearings for the accused. On the contrary, the
Nazi regime in Germany installed a system of "protective custody"
by which the arrested could claim no judicial or other hearing
process, [ Footnote 2/8 ] and, as a
result the concentration Page 345 U. S. 226 camps were populated with victims of summary executive detention
for secret reasons. That is what renders Communist justice such a
travesty. There are other differences, to be sure, between
authoritarian procedure and common law, but differences in the
process of administration make all the difference between a reign
of terror and one of law. Quite unconsciously, I am sure, the
Government's theory of custody for "safekeeping" without disclosure
to the victim of charges, evidence, informers, or reasons, even in
an administrative proceeding, has unmistakable overtones of the
"protective custody" of the Nazis more than of any detaining
procedure known to the common law. Such a practice, once
established with the best of intentions, will drift into oppression
of the disadvantaged in this country as surely as it has elsewhere.
That these apprehensive surmises are not "such stuff as dreams are
made on" appears from testimony of a top immigration official
concerning an applicant that "He has no rights."

															Because the respondent has no right of entry, does it follow
that he has no rights at all? Does the power to exclude mean that
exclusion may be continued or effectuated by any means which happen
to seem appropriate to the authorities? It would effectuate his
exclusion to eject him bodily into the sea or to set him adrift in
a rowboat. Page 345 U. S. 227 Would not such measures be condemned judicially as a deprivation
of life without due process of law? Suppose the authorities decide
to disable an alien from entry by confiscating his valuables and
money. Would we not hold this a taking of property without due
process of law? Here we have a case that lies between the taking of
life and the taking of property; it is the taking of liberty. It
seems to me that this, occurring within the United States or its
territorial waters, may be done only by proceedings which meet the
test of due process of law.

															Exclusion of an alien without judicial hearing, of course, does
not deny due process when it can be accomplished merely by turning
him back on land or returning him by sea. But when indefinite
confinement becomes the means of enforcing exclusion, it seems to
me that due process requires that the alien be informed of its
grounds and have a fair chance to overcome them. This is the more
due him when he is entrapped into leaving the other shore by
reliance on a visa which the Attorney General refuses to honor.

															It is evident that confinement of respondent no longer can be
justified as a step in the process of turning him back to the
country whence he came. Confinement is no longer ancillary to
exclusion; it can now be justified only as the alternative to
normal exclusion. It is an end in itself.

															The Communist conspiratorial technique of infiltration poses a
problem which sorely tempts the Government to resort to confinement
of suspects on secret information secretly judged. I have not been
one to discount the Communist evil. But my apprehensions about the
security of our form of government are about equally aroused by
those who refuse to recognize the dangers of Communism and those
who will not see danger in anything else. Page 345 U. S. 228 Congress has ample power to determine whom we will admit to our
shores and by what means it will effectuate its exclusion policy.
The only limitation is that it may not do so by authorizing United
States officers to take without due process of law the life, the
liberty, or the property of an alien who has come within our
jurisdiction, and that means he must meet a fair hearing with fair
notice of the charges. [ Footnote
2/9 ]

															It is inconceivable to me that this measure of simple justice
and fair dealing would menace the security of this country. No one
can make me believe that we are that far gone.

															[ Footnote 2/1 ] Somersett's Case, 20 How.St.Tr. 1; 2 Campbell, Lives of
the Chief Justices, 418; Fiddes, Lord Mansfield and The Sommersett Case, 50 L.Q.Rev. 499.

															[ Footnote 2/2 ]

															I recite facts alleged in the petition for the writ. Since the
Government declined to try the case on the merits, I think we must
consider the question on well pleaded allegations of the petition.
Petitioner might fail to make good on a hearing; the question is,
must he fail without one?

															[ Footnote 2/3 ]

															Mr. Justice Holmes, for the Court, said in Chin Yow v.
United States, 208 U. S. 8 , 208 U. S.
12 -13:

															"If we regard the petitioner, as in Ju Toy's Case it
was said that he should be regarded, as if he had been stopped and
kept at the limit of our jurisdiction, 198 U.S. 198 U. S.
263 , still it would be difficult to say that he was not
imprisoned, theoretically as well as practically, when to turn him
back meant that he must get into a vessel against his wish and be
carried to China. The case would not be that of a person simply
prevented from going in one direction that he desired and had a
right to take, all others being left open to him, a case in which
the judges were not unanimous in Bird v. Jones, 7 Q.B.
742. But we need not speculate upon niceties. It is true that the
petitioner gains no additional right of entrance by being allowed
to pass the frontier in custody for the determination of his case.
But, on the question whether he is wrongly imprisoned, we must look
at the actual facts. De facto, he is locked up until
carried out of the country against his will."

															[ Footnote 2/4 ]

															Testimony of Almanza Tripp, an immigration service official,
before the Senate Subcommittee on Immigration on February 15, 1950,
included the following:

															"Now, when we have a case of that sort, where central registry
contains something derogatory of that nature, I do not believe we
should make a finding of admissibility until it has been disproved.
But the evidence that they had in central registry would not be
sufficient for our Service to exclude by the normal board of
special inquiry proceedings, because those proceedings must be
conducted in a manner in which they could not be subject to attack
in a court of the United States."

															"You may say that it is unfair to the applicant not to give him
that protection, but you must remember that the applicant is an
applicant. He has no rights. . . ."

															(Hearings before the Subcommittee on Amendments to the Displaced
Persons Act, Senate Committee on the Judiciary, 81st Cong., 1st and
2d Sessions 665.)

															[ Footnote 2/5 ] Cf. Toyosaburo Korematsu v. United States, 323 U.
S. 214 .

															[ Footnote 2/6 ]

															18 U.S.C. § 3043; cf. Criminal Code of New York, 66
McKinney's Consolidated Laws, c. II, § 84.

															[ Footnote 2/7 ]

															Criminal Justice Act, 1948, § 21(2).

															[ Footnote 2/8 ]

															Hermann Goering, on cross-xamination, made the following
statements:

															". . . [T]hose who had committed some act of treason against the
new state, or those who might be proved to have committed such an
act, were naturally turned over to the courts. The others, however,
of whom one might expect such acts, but who had not yet committed
them, were taken into protective custody, and these were the people
who were taken to concentration camps. . . . Likewise, if, for
political reasons . . . , someone was taken into protective
custody, that is, purely for reasons of state, this could not be
reviewed or stopped by any court."

															He claimed (though the claim seemed specious) that, twenty-our
hours after being put in concentration camps, they were informed of
the reasons, and, after forty-ight hours, were allowed an
attorney.

															"But this by no means rescinded my order that a review was not
permitted by the courts of a politically necessary measure of
protective custody. These people were simply to be given an
opportunity of making a protest."

															9 International Military Tribunal Proceedings 420-421 (March 18,
1946).

															[ Footnote 2/9 ]

															The trial court sought to reconcile due process for the
individual with claims of security by suggesting that the Attorney
General disclose in camera enough to enable a judicial
determination of the legality of the confinement. The Attorney
General refused . I do not know just how an in camera proceeding would be handled in this kind of case. If respondent,
with or without counsel, were present, disclosures to them might
well result in disclosures by them. If they are not allowed to be
present, it is hard to see how it would answer the purpose of
testing the Government's case by cross-xamination or
counter-vidence, which is what a hearing is for. The questions
raised by the proposal need not be discussed, since they do not
call for decision here.

Summary: The Supreme Court ruled that the Attorney General's decision to exclude an alien from entering the United States without a hearing is lawful and cannot be overruled by the courts. The alien, a resident of the US, traveled to Hungary and upon his return was deemed a security risk and excluded from entry. The Court held that the Attorney General has the authority to make such determinations and that the alien's prior residence does not grant him additional rights. The Court also upheld the Attorney General's decision to not disclose the confidential information that led to the exclusion.


U.S. Supreme Court Graham v. Department of Pub. Welfare, 403
U.S. 365 (1971) Graham v. Department of Pub.
Welfare No. 609 Argued March 22, 1971 Decided June 14, 1971 403
U.S. 365 ast|>* 403
U.S. 365 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
ARIZONA Syllabus State statutes, like the Arizona and Pennsylvania statutes here
involved, that deny welfare benefits to resident aliens or to
aliens who have not resided in the United States for a specified
number of years are violative of the Equal Protection Clause and
encroach upon the exclusive federal power over the entrance and
residence of aliens; and there is no authorization for Arizona's
15-year durational residency requirement in § 1402(b) of the Social
Security Act. Pp. 403 U. S.
370 -383. 313 F. Supp.
34 and 321 F.
Supp. 250 , affirmed.

															BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BLACK, DOUGLAS, BRENNAN, STEWART, WHITE, and
MARSHALL, JJ., joined. HARLAN, J., filed a statement joining in the
judgment and in Parts III and IV of the Court's opinion, post, p. 403 U. S.
383 . Page 403 U. S. 366 MR. JUSTICE BLACKMUN delivered the opinion of the Court.

															These are welfare cases. They provide yet another aspect of the
widening litigation in this area. [ Footnote 1 ] The issue here is whether the Equal Protection
Clause of the Fourteenth Amendment prevents a State from
conditioning welfare benefits either (a) upon the beneficiary's
possession of United States citizenship, or (b) if the beneficiary
is an alien, upon his having resided in this country for a
specified number of years. The facts are not in dispute. I No. 609. This case, from Arizona, concerns the State's
participation in federal categorical assistance programs. These
programs originate with the Social Security Act Page 403 U. S. 367 of 1935, 49 Stat. 620, as amended, 42 U.S.C. c. 7. They are
supported in part by federal grants-in-aid, and are administered by
the States under federal guidelines. Arizona Rev.Stat.Ann., Tit.
46, Art. 2, as amended, provides for assistance to persons
permanently and totally disabled (APTD). See 42 U.S.C. §§
1351-1355. Arizona Rev.Stat.Ann. § 46-233 (Supp. 1970-1971), as
amended in 1962, reads:

															"A. No person shall be entitled to general assistance who does
not meet and maintain the following requirements: "

															"1. Is a citizen of the United States, or has resided in the
United States a total of fifteen years. . . ."

															A like eligibility provision conditioned upon citizenship or
durational residence appears in § 46-252(2), providing old-age
assistance, and in § 46-272(4), providing assistance to the needy
blind. See 42 U.S.C. §§ 1201-1206, 1381-1385.

															Appellee Carmen Richardson, at the institution of this suit in
July, 1969, was 64 years of age. She is a lawfully admitted
resident alien. She emigrated from Mexico in 1956, and, since then,
has resided continuously in Arizona. She became permanently and
totally disabled. She also met all other requirements for
eligibility for APTD benefits except the 15-year residency
specified for aliens by § 46-233(A)(1). She applied for benefits,
but was denied relief solely because of the residency
provision.

															Mrs. Richardson instituted her class action [ Footnote 2 ] in the District of Arizona against the
Commissioner of the State's Department of Public Welfare seeking
declaratory relief, an injunction against the enforcement of §§
46-233(A)(1), Page 403 U. S. 368 4252(2), and 46-272(4), and the award of amounts allegedly due.
She claimed that Arizona's alien residency requirements violate the
Equal Protection Clause and the constitutional right to travel;
that they conflict with the Social Security Act, and are thus
overborne by the Supremacy Clause; and that the regulation of
aliens has been preempted by Congress.

															The three-judge court upheld Mrs. Richardson's motion for
summary judgment on equal protection grounds. Richardson v.
Graham, 313 F. Supp.
34 (Ariz.1970). It did so in reliance on this Court's opinions
in Takahashi v. Fish & Game Comm'n, 334 U.
S. 410 (1948), and Shapiro v. Thompson, 394 U. S. 618 (1969). The Commissioner appealed. The judgment was stayed as to
all parties plaintiff other than Mrs. Richardson. Probable
jurisdiction was noted. 400 U.S. 956 (1970).

															No. 727. This case, from Pennsylvania, concerns that portion of
a general assistance program that is not federally supported. The
relevant statute is § 432(2) of the Pennsylvania Public Welfare
Code, Pa.Stat.Ann., Tit. 62, § 432(2) (1968), [ Footnote 3 ] originally enacted in 1939. It
provides that those eligible for assistance shall be (1) needy
persons who qualify under the federally supported categorical
assistance programs, and (2) those other needy persons who are
citizens of the United States Assistance to the latter group is
funded wholly by the Commonwealth. Page 403 U. S. 369 Appellee Elsie Mary Jane Leger is a lawfully admitted resident
alien. She was born in Scotland in 1937. She came to this country
in 1965 at the age of 28 under contract for domestic service with a
family in Havertown. She has resided continuously in Pennsylvania
since then, and has been a taxpaying resident of the Commonwealth.
In 1967, she left her domestic employment to accept more
remunerative work in Philadelphia. She entered into a common law
marriage with a United States citizen. In 1969, illness forced both
Mrs. Leger and her husband to give up their employment. They
applied for public assistance. Each was ineligible under the
federal programs. Mr. Leger, however, qualified for aid under the
state program. Aid to Mrs. Leger was denied because of her
alienage. The monthly grant to Mr. Leger was less than the amount
determined by both federal and Pennsylvania authorities as
necessary for a minimum standard of living in Philadelphia for a
family of two.

															Mrs. Leger instituted her class action [ Footnote 4 ] in the Eastern District of Pennsylvania
against the Executive Director of the Philadelphia County Board of
Assistance and the Secretary of the Commonwealth's Department of
Public Welfare. She sought declaratory relief, an injunction
against the enforcement of the restriction of § 432(2), and the
ordering of back payments wrongfully withheld. She obtained a
temporary restraining order preventing the defendants from
continuing to deny her assistance. She then began to receive, and
still receives, with her husband, a public assistance grant.

															Appellee Beryl Jervis was added as a party plaintiff to Page 403 U. S. 370 the Leger action. She was born in Panama in 1912, and is a
citizen of that country. In March, 1968, at the age of 55, she came
to the United States to undertake domestic work under contract in
Philadelphia. She has resided continuously in Pennsylvania since
then, and has been a taxpaying resident of the Commonwealth. After
working as a domestic for approximately one year, she obtained
other, more remunerative, work in the city. In February, 1970
illness forced her to give up her employment. She applied for aid.
However, she was ineligible for benefits under the federally
assisted programs, and she was denied general assistance solely
because of her alienage. Her motion for immediate relief through a
temporary restraining order was denied.

															It was stipulated that

															"the denial of General Assistance to aliens otherwise eligible
for such assistance causes undue hardship to them by depriving them
of the means to secure the necessities of life, including food,
clothing and shelter,"

															and that

															"the citizenship bar to the receipt of General Assistance in
Pennsylvania discourages continued residence in Pennsylvania of
indigent resident aliens, and causes such needy persons to remove
to other States which will meet their needs."

															The three-judge court, one judge dissenting, ruled that § 432(2)
was violative of the Equal Protection Clause, and enjoined its
further enforcement. Leer v. Sailer, 321 F.
Supp. 250 (ED Pa.1970). The defendants appealed. Probable
jurisdiction was noted. 400 U.S. 956. II The appellants argue initially that the States, consistent with
the Equal Protection Clause, may favor United States citizens over
aliens in the distribution of welfare benefits. It is said that
this distinction involves no "invidious discrimination" such as was
condemned in Page 403 U. S. 371 King v. Smith, 392 U. S. 309 (1968), for the State is not discriminating with respect to race or
nationality.

															The Fourteenth Amendment 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."

															It has long been settled, and it is not disputed here, that the
term "person" in this context encompasses lawfully admitted
resident aliens, as well as citizens of the United States, and
entitles both citizens and aliens to the equal protection of the
laws of the State in which they reside. Yick Wo v.
Hopkins, 118 U. S. 356 , 118 U. S. 369 (1886); Truax v. Raich, 239 U. S. 33 , 239 U. S. 39 (1915); Takahashi v. Fish & Game Comm'n, 334 U.S. at 334 U. S. 420 .
Nor is it disputed that the Arizona and Pennsylvania statutes in
question create two classes of needy persons, indistinguishable
except with respect to whether they are or are not citizens of this
country. Otherwise qualified United States citizens living in
Arizona are entitled to federally funded categorical assistance
benefits without regard to length of national residency, but aliens
must have lived in this country for 15 years in order to qualify
for aid. United States citizens living in Pennsylvania, unable to
meet the requirements for federally funded benefits, may be
eligible for state supported general assistance, but resident
aliens as a class are precluded from that assistance.

															Under traditional equal protection principles, a State retains
broad discretion to classify as long as its classification has a
reasonable basis. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 78 (1911); Williamson v. Lee Optical Co., 348 U.
S. 483 , 348 U. S. 489 (1955); Morey v. Doud, 354 U. S. 457 , 354 U. S. 465 (1957); McGowan v. Maryland, 366 U.
S. 420 , 366 U. S.
425 -427 (1961). This is so in "the area of economics and
social welfare." Dandridge v. Williams, 397 U.
S. 471 , 397 U. S. 485 (1970). But the Court's decisions Page 403 U. S. 372 have established that classifications based on alienage, like
those based on nationality [ Footnote 5 ] or race, [ Footnote 6 ] are inherently suspect and subject to close
judicial scrutiny. Aliens as a class are a prime example of a
"discrete and insular" minority ( see United States v. Carolene
Products Co., 304 U. S. 144 , 304 U. S.
152 -153, n. 4 (1938)) for whom such heightened judicial
solicitude is appropriate. Accordingly, it was said in Takahashi, 334 U.S. at 334 U. S. 420 ,
that "the power of a state to apply its laws exclusively to its
alien inhabitants as a class is confined within narrow limits."

															Arizona and Pennsylvania seek to justify their restrictions on
the eligibility of aliens for public assistance solely on the basis
of a State's "special public interest" in favoring its own citizens
over aliens in the distribution of limited resources such as
welfare benefits. It is true that this Court on occasion has upheld
state statutes that treat citizens and noncitizens differently, the
ground for distinction having been that such laws were necessary to
protect special interests of the State or its citizens. Thus, in Truax v. Raich, 239 U. S. 33 (1915), the Court, in striking down an Arizona statute restricting
the employment of aliens, emphasized that

															"[t]he discrimination defined by the act does not pertain to the
regulation or distribution of the public domain, or of the common
property or resources of the people of the State, the enjoyment of
which may be limited to its citizens as against both aliens and the
citizens of other States."

															239 U.S. at 239 U. S. 390 .
And in Crane v. New
York , 239 U.S. Page 403 U. S. 373 195 (1915), the Court affirmed the judgment in People v.
Crane, 214 N.Y. 154, 108 N.E. 427 (1915), upholding a New York
statute prohibiting the employment of aliens on public works
projects. The New York court's opinion contained Mr. Justice
Cardozo's well known observation:

															"To disqualify aliens is discrimination indeed, but not
arbitrary discrimination, for the principle of exclusion is the
restriction of the resources of the state to the advancement and
profit of the members of the state. Ungenerous and unwise such
discrimination may be. It is not for that reason unlawful. . . .
The state, in determining what use shall be made of its own moneys,
may legitimately consult the welfare of its own citizens, rather
than that of aliens. Whatever is a privilege, rather than a right,
may be made dependent upon citizenship. In its war against poverty,
the state is not required to dedicate its own resources to citizens
and aliens alike."

															214 N.Y. at 161, 164, 108 N.E. at 429, 430. See Heim v.
McCall, 239 U. S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 274 U.
S. 392 (1927). On the same theory, the Court has upheld
statutes that, in the absence of overriding treaties, limit the
right of noncitizens to engage in exploitation of a State's natural
resources, [ Footnote 7 ]
restrict the devolution of real property to aliens, [ Footnote 8 ] or deny to aliens the right to
acquire and own land. [ Footnote
9 ] Page 403 U. S. 374 Takahashi v. Fish & Game Comm'n, 334 U.
S. 410 (1948), however, cast doubt on the continuing
validity of the special public interest doctrine in all contexts.
There, the Court held that California's purported ownership of fish
in the ocean off its shores was not such a special public interest
as would justify prohibiting aliens from making a living by fishing
in those waters while permitting all others to do so. It was
said:

															"The Fourteenth Amendment and the laws adopted under its
authority thus embody a general policy that all persons lawfully in
this country shall abide 'in any state' on an equality of legal
privileges with all citizens under nondiscriminatory laws."

															334 U.S. at 334 U. S.
420 .

															Whatever may be the contemporary vitality of the special public
interest doctrine in other contexts after Takahashi, we
conclude that a State's desire to preserve limited welfare benefits
for its own citizens is inadequate to justify Pennsylvania's making
noncitizens ineligible for public assistance, and Arizona's
restricting benefits to citizens and longtime resident aliens.
First, the special public interest doctrine was heavily grounded on
the notion that "[w]hatever is a privilege, rather than a right,
may be made dependent upon citizenship." People v. Crane, 214 N.Y. at 164, 108 N.E. at 430. But this Court now has rejected
the concept that constitutional rights turn upon whether a
governmental benefit is characterized as a "right" or as a
"privilege." Sherbert v. Verner, 374 U.
S. 398 , 374 U. S. 404 (1963); Shapiro v. Thompson, 394 U.S. at 394 U. S. 627 n. 6; Goldberg v. Kelly, 397 U. S. 254 , 397 U. S. 262 (1970); Bell v. Burson, 402 U. S. 535 , 402 U. S. 539 (1971). Second, as the Court recognized in Shapiro: "[A] State has a valid interest in preserving the fiscal
integrity of its programs. It may legitimately attempt to limit its
expenditures, whether for public Page 403 U. S. 375 assistance, public education, or any other program. But a State
may not accomplish such a purpose by invidious distinctions between
classes of its citizens. . . . The saving of welfare costs cannot
justify an otherwise invidious classification."

															394 U.S. at 394 U. S. 633 .
Since an alien, as well as a citizen, is a "person" for equal
protection purposes, a concern for fiscal integrity is no more
compelling a justification for the questioned classification in
these cases than it was in Shapiro. Appellants, however, would narrow the application of Shapiro to citizens by arguing that the right to travel,
relied upon in that decision, extends only to citizens and not to
aliens. While many of the Court's opinions do speak in terms of the
right of "citizens" to travel, [ Footnote 10 ] the source of the constitutional right to
travel has never been ascribed to any particular constitutional
provision. See Shapiro v. Thompson, 394 U.S. at 394 U. S. 630 n. 8; United States v. Guest, 383 U.
S. 745 , 383 U. S.
757 -758 (1966). The Court has never decided whether the
right applies specifically to aliens, and it is unnecessary to
reach that question here. It is enough to say that the
classification involved in Shapiro was subjected to strict
scrutiny under the compelling state interest test, not because it
was based on any suspect criterion such as race, nationality, or
alienage, but because it impinged upon the fundamental right of
interstate movement. As was said there,

															"The waiting period provision denies welfare benefits to
otherwise eligible applicants solely because they have recently
moved into the jurisdiction. But, in moving from State Page 403 U. S. 376 to State or to the District of Columbia, appellees were
exercising a constitutional right, and any classification which
serves to penalize the exercise of that right, unless shown to be
necessary to promote a compelling governmental interest,
is unconstitutional."

															394 U.S. at 394 U. S. 634 .
The classifications involved in the instant cases, on the other
hand, are inherently suspect, and are therefore subject to strict
judicial scrutiny whether or not a fundamental right is impaired.
Appellants' attempted reliance on Dandridge v. Williams, 397 U. S. 471 (1970), is also misplaced, since the classification involved in
that case (family size) neither impinged upon a fundamental
constitutional right nor employed an inherently suspect
criterion.

															We agree with the three-judge court in the Pennsylvania case
that the

															"justification of limiting expenses is particularly
inappropriate and unreasonable when the discriminated class
consists of aliens. Aliens, like citizens, pay taxes, and may be
called into the armed forces. Unlike the short-term residents in Shapiro, aliens may live within a state for many years,
work in the state and contribute to the economic growth of the
state."

															321 F. Supp. at 253. See also Purdy & Fitzpatrick v.
California, 71 Cal. 2d
566 , 581-582, 456 P.2d 645, 656 (1969). There can be no
"special public interest" in tax revenues to which aliens have
contributed on an equal basis with the residents of the State.

															Accordingly, we hold that a state statute that denies welfare
benefits to resident aliens and one that denies them to aliens who
have not resided in the United States for a specified number of
years violate the Equal Protection Clause. III An additional reason why the state statutes at issue in these
cases do not withstand constitutional scrutiny Page 403 U. S. 377 emerges from the area of federal state relations. The National
Government has

															"broad constitutional powers in determining what aliens shall be
admitted to the United States, the period they may remain,
regulation of their conduct before naturalization, and the terms
and conditions of their naturalization." Takahashi v. Fish & Game Comm'n, 334 U.S. at 334 U. S. 419 ; Hines v. Davidowitz, 312 U. S. 52 , 312 U. S. 66 (1941); see also Chinese Exclusion Case, 130 U.
S. 581 (1889); United States ex rel. Turner v.
Williams, 194 U. S. 279 (1904); Fong Yue Ting v. United States, 149 U.
S. 698 (1893); Harisiades v. Shaughnessy, 342 U. S. 580 (1952). Pursuant to that power, Congress has provided, as part of a
comprehensive plan for the regulation of immigration and
naturalization, that "[a]liens who are paupers, professional
beggars, or vagrants," or aliens who "are likely at any time to
become public charges," shall be excluded from admission into the
United States, 8 U.S.C. §§ 1182(a)(8) and 1182(a)(15), and that any
alien lawfully admitted shall be deported who "has within five
years after entry become a public charge from causes not
affirmatively shown to have arisen after entry. . . ." 8 U.S.C. §
1251(a)(8). Admission of aliens likely to become public charges may
be conditioned upon the posting of a bond or cash deposit. 8 U.S.C.
§ 1183. But Congress has not seen fit to impose any burden or
restriction on aliens who become indigent after their entry into
the United States. Rather, it has broadly declared:

															"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory . . . to the full
and equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens. . . ."

															42 U.S.C. § 1981. The protection of this statute has been held
to extend to aliens, as well as to citizens. Takahashi, 334 U.S. at 334 U. S. 419 n. 7. Moreover, this Court has made it clear that, whatever may be
the Page 403 U. S. 378 scope of the constitutional right of interstate travel, 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." Takahashi, 334
U.S. at 334 U. S.
420 .

															State laws that restrict the eligibility of aliens for welfare
benefits merely because of their alienage conflict with these
overriding national policies in an area constitutionally entrusted
to the Federal Government. In Hines v. Davidowitz, 312
U.S. at 312 U. S. 66 -67,
where this Court struck down a Pennsylvania alien registration
statute (enacted in 1939, as was the statute under challenge in No.
727) on grounds of federal preemption, it was observed that

															"where the federal government, in the exercise of its superior
authority in this field, has enacted a complete scheme of
regulation . . . states cannot, inconsistently with the purpose of
Congress, conflict or interfere with, curtail or complement, the
federal law, or enforce additional or auxiliary regulations."

															And, in Takahashi, it was said that the States

															"can neither add to nor take from the conditions lawfully
imposed by Congress upon admission, naturalization and residence of
aliens in the United States or the several states. State laws which
impose discriminatory burdens upon the entrance or residence of
aliens lawfully within the United States conflict with this
constitutionally derived federal power to regulate immigration, and
have accordingly been held invalid."

															334 U.S. at 334 U. S.
419 .

															Congress has broadly declared as federal policy that lawfully
admitted resident aliens who become public charges for causes
arising after their entry are not subject to deportation, and that,
as long as they are here, they are entitled to the full and equal
benefit of all state laws for the security of persons and property.
The state statutes Page 403 U. S. 379 at issue in the instant cases impose auxiliary burdens upon the
entrance or residence of aliens who suffer the distress, after
entry, of economic dependency or public assistance. Alien residency
requirements for welfare benefits necessarily operate, as did the
residency requirements in Shapiro, to discourage entry
into or continued residency in the State. Indeed, in No. 727, the
parties stipulated that this was so.

															In Truax, the Court considered the "reasonableness" of
a state restriction on the employment of aliens in terms of its
effect on the right of a lawfully admitted alien to live where he
chooses:

															"It must also be said that reasonable classification implies
action consistent with the legitimate interests of the State, and
it will not be disputed that these cannot be so broadly conceived
as to bring them into hostility to exclusive Federal power. The
authority to control immigration -- to admit or exclude aliens --
is vested solely in the Federal Government. . . . The assertion of
an authority to deny to aliens the opportunity of earning a
livelihood when lawfully admitted to the State would be tantamount
to the assertion of the right to deny them entrance and abode, for,
in ordinary cases, they cannot live where they cannot work. And, if
such a policy were permissible, the practical result would be that
those lawfully admitted to the country under the authority of the
acts of Congress, instead of enjoying in a substantial sense and in
their full scope the privileges conferred by the admission, would
be segregated in such of the States as chose to offer
hospitality."

															239 U.S. at 239 U. S. 42 .
The same is true here, for, in the ordinary case, an alien,
becoming indigent and unable to work, will be unable to live where,
because of discriminatory denial of public Page 403 U. S. 380 assistance, he cannot "secure the necessities of life, including
food, clothing and shelter." State alien residency requirements
that either deny welfare benefits to noncitizens or condition them
on longtime residency, equate with the assertion of a right,
inconsistent with federal policy, to deny entrance and abode. Since
such laws encroach upon exclusive federal power, they are
constitutionally impermissible. IV Arizona suggests, finally, that its 15-year durational residency
requirement for aliens is actually authorized by federal law.
Reliance is placed on § 1402(b) of the Social Security Act of 1935,
added by the Act of Aug. 28, 1950, § 351, 64 Stat. 556, as amended,
42 U.S.C. § 1352(b). That section provides:

															"The Secretary shall approve any plan which fulfills the
conditions specified in subsection (a) of this section, except that
he shall not approve any plan which imposes, as a condition of
eligibility for aid to the permanently and totally disabled under
the plan --"

															" * * * *" "(2) Any citizenship requirement which excludes any citizen of
the United States. [ Footnote
11 ] " Page 403 U. S. 381 The meaning of this provision is not entirely clear. On its
face, the statute does not affirmatively authorize, much less
command, the States to adopt durational residency requirements or
other eligibility restrictions applicable to aliens; it merely
directs the Secretary not to approve state-submitted plans that
exclude citizens of the United States from eligibility. Cf.
Shapiro v. Thompson, 394 U.S. at 394 U. S.
638 -641.

															We have been unable to find in the legislative history of the
1950 amendments any clear indication of congressional intent in
enacting § 1402(b). [ Footnote
12 ] The provision appears to have its roots in identical
language of the old-age assistance and aid-to-the-blind sections of
the Social Security Act of 1935 as originally enacted. 49 Stat.
620, 42 U.S.C. § 302(b); 49 Stat. 645, 42 U.S.C. § 1202(b). The
House and Senate Committee Reports expressly state, with reference
to old-age assistance, that:

															"A person shall not be denied assistance on the ground that he
has not been a United States citizen for a number of years, if in
fact, when he receives assistance, he is a United States citizen.
This means that a State may, if it wishes, assist only those who
are citizens, but must not insist on their having been born
citizens or on their having been naturalized citizens for a
specified period of time. [ Footnote 13 ] " Page 403 U. S. 382 It is apparent from this that Congress' principal concern in
1935 was to prevent the States from distinguishing between
native-born American citizens and naturalized citizens in the
distribution of welfare benefits. It may be assumed that Congress
was motivated by a similar concern in 1950 when it enacted §
1402(b). As for the indication in the 1935 Committee Reports that
the States, in their discretion, could withhold benefits from
noncitizens, certain members of Congress simply may have been
expressing their understanding of the law only insofar as it had
then developed, that is, before Takahashi was decided. But
if § 1402(b), as well as the identical provisions for old-age
assistance and aid to the blind, were to be read so as to authorize
discriminatory treatment of aliens at the option of the States, Takahashi demonstrates that serious constitutional
questions are presented. Although the Federal Government admittedly
has broad constitutional power to determine what aliens shall be
admitted to the United States, the period they may remain, and the
terms and conditions of their naturalization, Congress does not
have the power to authorize the individual States to violate the
Equal Protection Clause. Shapiro v. Thompson, 394 U.S. at 394 U. S. 641 .
Under Art. I, § 8, cl. 4, of the Constitution, Congress' power is
to "establish an uniform Rule of Naturalization." A congressional
enactment construed so as to permit state legislatures to adopt
divergent laws on the subject of citizenship requirements for
federally supported welfare programs would appear to contravene
this explicit constitutional requirement of uniformity. [ Footnote 14 ] Since "statutes should
be construed whenever possible so as to uphold Page 403 U. S. 383 their constitutionality," United States v. Vuitch, 402 U. S. 62 , 402 U. S. 70 (1971), we conclude that § 1402(b) does not authorize the Arizona
15-year national residency requirement.

															The judgments appealed from are affirmed. It is so ordered. MR. JUSTICE HARLAN joins in Parts III and IV of the Court's
opinion, and in the judgment of the Court.

															* Together with No. 727, Sailer et al. v. Leer et al., on appeal from the United States District Court for the Eastern
District of Pennsylvania.

															[ Footnote 1 ] See, for example, King v. Smith, 392 U.
S. 309 (1968); Shapiro v. Thompson, 394 U. S. 618 (1969); Goldberg v. Kelly, 397 U.
S. 254 (1970); Rosado v. Wyman, 397 U.
S. 397 (1970); Dandridge v. Williams, 397 U. S. 471 (1970); Wyman v. James, 400 U. S. 309 (1971).

															[ Footnote 2 ]

															The suit is brought on behalf of appellee and similarly situated
Arizona resident aliens who, but for their inability to meet the
Arizona residence requirement, are eligible to receive welfare
benefits under state-administered federal categorical assistance
programs for the permanently and totally disabled, the aged, and
the blind.

															[ Footnote 3 ]

															§ 432. Eligibility

															"Except as hereinafter otherwise provided . . . needy persons of
the classes defined in clauses (1) and (2) of this section shall be
eligible for assistance: "

															"(1) Persons for whose assistance Federal financial
participation is available to the Commonwealth. . . ."

															"(2) Other persons who are citizens of the United States, or
who, during the period January 1, 1938, to December 31, 1939, filed
their declaration of intention to become citizens. . . ."

															[ Footnote 4 ]

															It was stipulated that the class of persons the appellees
represent approximates 65 to 70 cases annually. This figure stands
in striking contrast to the 585,000 persons in the Commonwealth on
categorical assistance and 85,000 on general assistance. Department
of Public Welfare Report of Public Assistance, Dec. 31, 1969.

															[ Footnote 5 ] See Oyama v. California, 332 U.
S. 633 , 332 U. S.
644 -646 (1948); Korematsu v. United States, 323 U. S. 214 , 323 U. S. 216 (1944); Hirabayashi v. United States, 320 U. S.
81 , 320 U. S. 100 (1943).

															[ Footnote 6 ] McLaughlin v. Florida, 379 U.
S. 184 , 379 U. S.
191 -192 (1964); Loving v. Virginia, 388 U. S. 1 , 388 U. S. 9 (1967); Bolling v. Sharpe, 347 U.
S. 497 , 347 U. S. 499 (1954)

															[ Footnote 7 ] McCready v. Virginia, 94 U. S. 391 (1877); Patsone v. Pennsylvania, 232 U.
S. 138 (1914).

															[ Footnote 8 ] Howenstein v. Lynham, 100 U. S. 483 (1880); Blythe v. Hinckley, 180 U.
S. 333 (1901).

															[ Footnote 9 ] Terrace v. Thompson, 263 U. S. 197 (1923); Porterfield v. Webb, 263 U.
S. 225 (1923); Webb v. O'Brien, 263 U.
S. 313 (1923); Frick v. Webb, 263 U.
S. 326 (1923); but see Oyama v. California, 332 U. S. 633 (1948).

															[ Footnote 10 ] E.g., 48 U. S. 7
How. 283, 48 U. S. 492 (1849); Crandall v.
Nevada , 6 Wall. 35, 73 U. S. 48 -49
(1868); Twining v. New Jersey, 211 U. S.
78 , 211 U. S. 97 (1908); Edwards v. California, 314 U.
S. 160 , 314 U. S.
178 -181 (DOUGLAS, J., concurring), 314 U. S.
183 -185 (Jackson, J., concurring) (1941); Shapiro v.
Thompson, 34 U.S. at 34 U. S. 629 ; Oregon v. Mitchell, 400 U. S. 112 , 400 U. S. 285 (opinion of STEWART, J.) (1970).

															[ Footnote 11 ]

															Pursuant to his rulemaking power under the Social Security Act,
42 U.S.C. § 1302, the Secretary of Health, Education, and Welfare
adopted the following regulations, upon which Arizona also
relies:

															"3720. Requirements for State Plans "

															"A State plan under titles I, X, XIV, and XVI may not impose, as
a condition of eligibility, any citizenship requirement which
excludes any citizen of the United States."

															"3730. Interpretation of Requirement "

															"State plans need not contain a citizenship requirement. The
purpose of IV-3720 is to ensure that, where such a requirement is
imposed, an otherwise eligible citizen of the United States,
regardless of how (by birth or naturalization) or when citizenship
was obtained, shall not be disqualified from receiving aid or
assistance under titles I, X, XIV, and XVI."

															"Where there is an eligibility requirement applicable to
noncitizens, State plans may, as an alternative to excluding all
noncitizens, provide for qualifying noncitizens, otherwise
eligible, who have resided in the United States for a specific
number of years."

															HEW Handbook of Public Assistance Administration, pt. IV.

															[ Footnote 12 ]

															H.R.Rep. No. 1300, 81st Cong., 1st Sess., 53, 153-154; S.Rep.
No. 1669, 81st Cong., 2d Sess.; H.R.Conf.Rep. No. 2771, 81st Cong.,
2d Sess., 118-119.

															[ Footnote 13 ]

															H.R.Rep. No. 615, 74th Cong., 1st Sess., 18; S.Rep. No. 628,
74th Cong., 1st Sess., 29.

															[ Footnote 14 ]

															We have no occasion to decide whether Congress, in the exercise
of the immigration and naturalization power, could itself enact a
statute imposing on aliens a uniform nationwide residency
requirement as a condition of federally funded welfare
benefits.

Summary: The Supreme Court ruled that state laws denying welfare benefits to resident aliens or those who have not lived in the US for a set time violate the Equal Protection Clause and federal power over immigration. Arizona's 15-year residency rule was deemed unauthorized by the Social Security Act. The Court affirmed lower court rulings, protecting equal welfare benefits for resident aliens.