This appeal raises two challenges to Executive Order No. 11935, 5 C.F.R. § 7.4 at 14 (1979), reprinted in 5 U.S.C. § 3301 at 384 (1976),1 which prohibits any alien from taking the examination for, or from generally being given an appointment in, the federal competitive civil service.2 The first question is whether the President was sufficiently empowered to issue the order. The second inquiry is, if the President was authorized to issue Executive Order No. 11935, whether the order is unconstitutional because it violates the due process clause of the fifth amendment.

On December 20, 1970, five lawfully resident aliens instituted a class action for declaratory and injunctive relief challenging, inter alia, the constitutionality of a regulation promulgated by the Civil Service Commission (the "CSC"), 5 C.F.R. § 338.101 (1979),3 which required applicants for most positions in the federal competitive civil service to be citizens of or to be persons owing permanent allegiance to the United States of America. The district court upheld the regulation. Mow Sun Wong v. Hampton, 333 F. Supp. 527 (N.D.Cal.1971).

On appeal, this court held that aliens were a suspect class and therefore discrimination by the federal government based on alienage was improper unless justified by compelling reasons. Mow Sun Wong v. Hampton, 500 F.2d 1031 (9th Cir. 1974). While several reasons were examined and found by this court to be persuasive for a partial ban on alien employment, no logical or sufficient justification was found for the automatic exclusion of the heterogeneous alien population in this country from virtually all federal civil service employment. Thus, 5 C.F.R. § 338.101 was held to be a denial of due process because it was overbroad. Id. at 1041.

On certiorari, the Supreme Court affirmed by a vote of 5 to 4 this court's decision as to the unconstitutionality of the regulation but on entirely different grounds. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S. Ct. 1895, 48 L. Ed. 2d 495 (1976).4 The Court held that overriding national interests may justify a citizenship requirement in the federal civil service even though an identical requirement could not properly be enacted by a state in a comparable situation. However, the Court went on to state that:

Since these (alien) residents were admitted as a result of decisions made by the Congress and the President, implemented by the Immigration and Naturalization Service acting under the Attorney General of the United States, due process requires that the decision to impose that deprivation of an important liberty (i. e. eligibility for employment in a major sector of the economy) be made either at a comparable level of government or, if it is to be permitted to be made by the Civil Service Commission, that it be justified by reasons which are properly the concern of that agency. (Footnote omitted.)

Id. at 116, 96 S.Ct. at 1911. Finding no express mandate from either Congress or the President to the CSC to issue a general prohibition against the employment of aliens in the federal civil service nor any sufficient justification properly within the CSC's concern to justify such a rule, the Court held the regulation invalid.

On September 10, 1976, the named plaintiffs moved in the district court for an injunctive order implementing the Supreme Court's decision. However, on September 2, 1976, President Ford, in response to the Court's opinion in Mow Sun Wong, issued Executive Order No. 11935 which again barred aliens from virtually all positions in the federal civil service. The district court found the order to be within the President's statutory authority and not to be in conflict with the due process clause of the fifth amendment. Mow Sun Wong v. Hampton, 435 F. Supp. 37 (N.D.Cal.1977). It denied the requested injunctive relief and this appeal ensued.

A. Presidential Authority To Issue The Executive Order

President Ford cited both the Constitution and statutory law (inter alia 5 U.S.C. §§ 3301 and 3302) as authority for his issuance of Executive Order No. 11935.5 The district court below subsequently stated that the dispute over the President's power to issue such order had already been decided in the affirmative by the Supreme Court based on Congress' delegation to the President in 5 U.S.C. § 3301(1).6 Mow Sun Wong, supra, 435 F.Supp. at 42; accord, Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978), cert. denied, 441 U.S. 905, 99 S. Ct. 1993, 60 L. Ed. 2d 373 (1979). We agree.7

The Supreme Court in Mow Sun Wong, supra, 426 U.S. at 112-116, 96 S. Ct. at 1911, did not hold that the promulgation of 5 C.F.R. § 338.101 was per se beyond the delegated authority of the CSC.8 It was noted by the Court that Congress had empowered the President to "prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of . . . (the federal civil) service." Id. at 114 n.47, 96 S. Ct. at 1910, citing to 5 U.S.C. § 3301(1). Additionally, Congress had empowered the CSC, "subject to the rules prescribed by the President", to "prescribe regulations for, (and) control, supervise, and preserve the records of, examinations for the competitive service." 5 U.S.C. § 1302(a). Section 2.1(a) of Executive Order No. 10577, previously issued by President Eisenhower, authorized the CSC to "establish standards with respect to citizenship" and other requirements "which applicants must meet to be admitted to or rated in (the competitive service) examinations." Executive Order No. 10577 § 2.1(a), 5 C.F.R. § 2.1(a) at 8 (1979), reprinted in 5 U.S.C. § 3301 at 373 (1976). 5 C.F.R. § 338.101 was promulgated by the CSC pursuant to that initial delegation from Congress to the President, 5 U.S.C. § 3301(1), and the second delegation from the President to the CSC, 5 U.S.C. § 1302(a) and Executive Order No. 10577.

In Mow Sun Wong, supra, 426 U.S. at 113, 96 S. Ct. at 1910, the Supreme Court, in considering the CSC's authority to issue the regulation, stated that it had "no doubt that the statutory directive which merely requires such regulations 'as will best promote the efficiency of (the) Service,' 5 U.S.C. § 3301(1), as well as the pertinent Executive Order, gives the Civil Service Commission the same discretion . . . (to) either retain or modify the citizenship requirement without further authorization from Congress or the President. (Footnote omitted.)" Given the Court's conclusion that the CSC was sufficiently empowered by the delegation from the President to consider and issue a regulation incorporating a citizenship requirement (if the CSC could justify such a regulation with a legitimate interest properly within its concern), it is clear that the President's authority under 5 U.S.C. § 3301(1) to issue Executive Order No. 11935 can be no less valid since in that order the President is merely exercising the authority that he had previously delegated to the CSC. Accord, Vergara, supra, 581 F.2d at 1285.

Further sources of authority for the President's issuance of Executive Order No. 11935 arise from a number of additional statutory and constitutional provisions. As noted by the Court in striking down the CSC's promulgation of 5 C.F.R. § 338.101:

That agency has no responsibility for foreign affairs, for treaty negotiations, for establishing immigration quotas or conditions of entry, or for nationalization policies.

Mow Sun Wong, supra, 426 U.S. at 114, 96 S. Ct. at 1910. In comparison, however, the President clearly does have considerable responsibility over:

1) foreign affairs, see generally United States v. Curtiss-Wright Corp., 299 U.S. 304, 319, 57 S. Ct. 216, 220, 81 L. Ed. 255 (1936); C. & S. Air Lines v. Waterman Corp., 333 U.S. 103, 109-110 (1948); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979), cert. denied, --- U.S. ----, 100 S. Ct. 2928, 64 L. Ed. 2d 815 (1980); Corwin, The President, Office and Powers 1787-1957 170-226 (4th ed. 1957); Vol. II Schwartz, A Commentary on the Constitution of the United States, Part I Powers of the Government: Powers of the President 96-169 (1963);

2) treaty negotiations, U.S. Const. art. 2, § 2, cl. 2;

3) the admissibility of aliens, 8 U.S.C. § 1182(f); see also Knauff v. Shaughnessy, 338 U.S. 537, 542-543, 70 S. Ct. 309, 312, 94 L. Ed. 317 (1950); and

4) if he decides that it would be in the interest of the United States to do so, the President may impose any conditions on the entry of aliens that he may deem appropriate, 8 U.S.C. § 1182(f).

While we do not necessarily find any one of the foregoing to be sufficient in and of itself, we do find the above statutory and constitutional provisions in combination to be a sufficient source of authority for the president's issuance of the executive order.

In response to the above arguments, appellants contend that when an executive order is issued pursuant to a statutory or constitutional delegation and when that order adversely affects important and sensitive individual rights, the statutory or constitutional authorization must clearly and explicitly empower the President to so limit those rights. The essence of their contention is that where important individual rights are curtailed by a governmental entity which is exercising its authority via a delegation of power from another governmental entity, the authority to curtail such rights must be specifically expressed within the delegation. Hence, the appellants assert that while the President may have been empowered under 5 U.S.C. § 3301(1) to issue regulations for the admission of individuals into the federal civil service, section 3301(1) fails to expressly authorize the President to effect "a deprivation of an interest in liberty", which Executive Order No. 11935 admittedly does according to the majority opinion in Mow Sun Wong, supra, 426 U.S. at 102-103, 96 S. Ct. at 1904-1905.

Appellants rely primarily upon two Supreme Court cases. In Greene v. McElroy, 360 U.S. 474, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959), the Court held that in absence of specific authorization from either Congress or the President, executive agencies, although given responsibility to establish their own system for controlling the dissemination of classified information, could not fashion security programs whereby persons were deprived of their civilian employment without being accorded the opportunity to challenge effectively the adverse evidence and testimony against them. In Kent v. Dulles, 357 U.S. 116, 78 S. Ct. 1113, 2 L. Ed. 2d 1204 (1958), the Court held that the broad power of the Secretary of State under a federal statute to issue passports did not authorize him to pass a regulation which limited a citizen's right to travel on grounds not previously recognized by Congress. It is noted that the Court has reached similar holdings in Schneider v. Smith, 390 U.S. 17, 24-27, 88 S. Ct. 682, 686-687, 19 L. Ed. 2d 799 (1968); Peters v. Hobby, 349 U.S. 331, 345, 75 S. Ct. 790, 797, 99 L. Ed. 1129 (1955); and Ex Parte Endo, 323 U.S. 283, 299-300, 65 S. Ct. 208, 217, 89 L. Ed. 243 (1944).

The problem with appellant's "clear authorization" argument is that the Supreme Court in Mow Sun Wong concluded that Congress did confer upon the President the power to set citizenship requirements for public employment under the mandate in 5 U.S.C. § 3301(1) to "promote the efficiency" of the federal civil service. 426 U.S. at 113 n.46, 96 S. Ct. at 1910 n.46 and accompanying text. See Note, The Supreme Court, 1975 Term, 90 Harv.L.Rev. 56, 109-110 (1976). Given the Court's conclusion as to the sufficiency of that authorization, we are precluded from reaching a contrary result.9

B. Constitutionality Of Executive Order No. 11935

The Supreme Court in Mow Sun Wong, supra, 426 U.S. at 114 and 116-117, 96 S. Ct. at 1911-1912, specifically reserved the question of the constitutionality of a promulgation by the President of a bar on employment of aliens in the federal civil service. However, the Court did articulate a standard of review for cases where the federal government establishes a rule which discriminates on the basis of alienage.10

Initially the Court noted that "the power (of the federal government) over aliens is of a political character and therefore subject only to narrow judicial review." Id. at 101-102 n.21, 96 S. Ct. at 1904; accord, Mathews v. Diaz, 426 U.S. 67, 81-82, 96 S. Ct. 1883, 1892, 48 L. Ed. 2d 478 (1976). Nevertheless, the federal power over aliens was found not to be "so plenary that any agent of the National Government may arbitrarily subject all resident aliens to different substantive rules from those applied to citizens." Mow Sun Wong, supra, 426 U.S. at 101, 96 S. Ct. at 1904. The Court stated that:

When the Federal Government asserts an overriding national interest as justification for a discriminatory rule which would violate the Equal Protection Clause if adopted by a State, due process requires that there be a legitimate basis for presuming that the rule was actually intended to serve that interest.

Id. at 103, 96 S.Ct. at 1905.

In his letter of September 2, 1976 to the Speaker of the House of Representatives and to the President of the Senate which he published together with Executive Order No. 11935, reprinted in 41 Fed.Reg. 37303-04 (1976), President Ford stated that the executive order was being issued specifically in response to the Supreme Court's decision in Mow Sun Wong. From the President's letter, the primary justification for Executive Order No. 11935 appears to be the maintenance of the status quo as to the employment of aliens in the federal civil service.11 The Government in its arguments to this court also places reliance on two additional "national interests" which were cited by the Court in its opinion in Mow Sun Wong as possible justifications for such a regulation by Congress or the President: i. e. 1) to provide an incentive for aliens to qualify for naturalization and thereby participate more effectively in our society, and 2) to help facilitate the President's negotiation of treaties with foreign powers by enabling him to offer employment opportunities for citizens of a given foreign country in exchange for reciprocal concessions. 426 U.S. at 105, 96 S.Ct. at 1906.12

Applying the standard established in Mow Sun Wong, the issue becomes whether any of the three national interests which are identified as justifications for the executive order are interests on which the President may properly rely in making his decision implicating the constitutional and social values at stake in this litigation. To put the inquiry more precisely: is it properly the concern of the President to seek to 1) maintain the status quo in regards to the exclusion of aliens from employment in the federal civil service, 2) encourage naturalization by aliens in this country, or 3) create an expendable token which would help facilitate possible treaties with foreign countries which call for reciprocal employment concessions; and, if so, do any of those justifications constitute a sufficiently legitimate overriding national interest?

The district court below found the second proffered federal interest (providing an incentive for aliens to be nationalized) to be a sufficient reason to justify Executive Order No. 11935 and to uphold its constitutionality. We agree for reasons stated by the district court in its opinion. 435 F. Supp. at 45-46. Accord, Vergara, supra, 581 F.2d at 1287; cf., Ramos v. U. S. Civil Service Commission, 430 F. Supp. 422, 424 (D.P.R.1977).13 We also find that that federal interest is properly the concern of the President (as well as Congress) because: 1) aliens are admitted into this country "as a result of decisions made by Congress and the President", Mow Sun Wong, supra, 426 U.S. at 116, 96 S. Ct. at 1911; 2) Congress has empowered the President to "impose on the entry of aliens any restrictions he may deem to be appropriate" if he finds the entry of any aliens or class of aliens to be detrimental to the interests of the United States, 8 U.S.C. § 1182(f); and 3) the foreign affairs powers of the President are interwoven with the general policy of the federal government towards aliens, cf., Mathews, supra, 426 U.S. at 81, 96 S. Ct. at 1892; Harisiades v. Shaughnessy, 342 U.S. 580, 588-89, 72 S. Ct. 512, 518-19, 96 L. Ed. 586 (1952).

Having found Executive Order No. 11935 to be within the President's authority and not to be in violation of the due process clause of the fifth amendment, we affirm the decision of the district court below.