*1 ENGINEERS, ARCHI- OF EXAMINING BOARD AND SURVEYORS TECTS et al.
FLORES OTERO de 17, 1976* Argued 8, 1975 Decided June December No. 74-1267. Examining *Together Engineers, with Board Architects and Surveyors Nogueiro, et al. v. Perez appeal also on from the same (see (3)). court this Court’s Rule 15 *3 J., BlackmuN, opinion delivered the Court, of the in which J., Burger, C. BreNNAN, Stewart, White, Marshall, JJ., joined. RehNquist, Powell, J., filed opinion dissenting an part, post, p. SteveNS, J., part 606. no took in the consideration or decision of the case.
Miriam, Naveira Rodon, De Solicitor General of Puerto Rico, argued for appellants. cause her With on the brief Peter Ortiz, Deputy Solicitor General.
Max Ramirez de Arellano argued ap- the cause for pellees. Amadeo.† him With on the brief was Santos P. Justice Blackmun opinion delivered the
Mr. Court. presents
This case the issue whether the United States District Court for the District of Puerto Rico possesses Bork, Attorney † Solicitor General Assistant Lee, General Howard Shapiro, E. and David M. Cohen filed a brief for the United States as amicus curiae. (3),1 under U. S. C. entertain
jurisdiction, § upon 1983,2 suit based C. if the and, § answer is in the affirmative, the further issue whether by engi Rico’s of licenses for civil restriction, statute, neers to is United States citizens constitutional. The first phrased is another whether Puerto issue, way, “State,” of purposes insofar as that (3), speaks deprivation statute of any “under color of State the resolution question was reserved law”; Calero-Toledo v. Pearson Leasing Yacht 416 U. S. Co., 11 (1974). n.
I A. Puerto Act May Rico’s No. 10, 1951, now amended, codified as P. R. Laws Tit. Ann., 681-710 (Supp. §§ 1973), practice relates of en- gineering, architecture, and surveying. The administra- tion and enforcement are com- statute, mitted to the Commonwealth’s Board Examiners Engineers, Architects, and Surveyors, appellant an here.
1Title 28 U. S. provides: C. 1343 “The district courts shall original have any civil action authorized law by any to be commenced person: “(3) deprivation, law, To redress the under color State *4 statute, ordinance, regulation, usage, any right, privi- custom or of lege immunity by or secured the of Constitution the United States by any or equal Act of providing rights for of citizens or of persons jurisdiction all within the of the United States.” provides: Title U. S. C. 1983 “Every person who, any statute, ordinance, regu- under color of lation, custom, usage, any or Territory, subjects, of or State or any causes to be subjected, citizen of the United other States or person within deprivation the thereof to the of rights, privileges, by or immunities secured the Constitution and shall laws, party injured be liable to the law, in an action at suit in equity, or proper other proceeding for redress.” qualifications registra- the “for 689 sets forth Section For surveyor.” architect or a licensed tion as engineer^ in- architect,” qualifications these engineer “licensed or pertinent part statute in reads: Qualifications registry registration in the Board’s 689. for “§ evidence, satisfactory Board, the show that minimum to “As to qualifications registration for as licensed meets the applicant the surveyor, accept, engineer, architect . the Board as the or . . shall may case be:
“(2) engineer For or licensed architect: “(a) experience. Graduation, A cer- examination and minimum accrediting graduation of tification his from a course or curriculum architecture, (4) engineering or of a of not less than four duration years equivalent, efficacy adequately academic or its has been whose any university, college standing verified, or institute whose proficiency by accepted Board; passing are of written examina- (validation) subjects engineering tions on the fundamental of or architecture; history professional experience and a detailed his acquired years, than graduation pro- not less four after his as a fessional, satisfactory Board, showing, judgment to Board, applicant qualified that practice engineer or degree professional with responsibility justi- architect which licensing. fies his . . . already
“[(3)] In provided addition to what has been in this sec- tion, required applicants registration it shall be that for Board’s registry be citizens of the United America reside in year Commonwealth of Puerto Rico for not less than one before filing applications. Provided, requisite their being citizen of the United States of apply engineers, America shall not surveyors architects and who have studied the total courses and have received their corresponding grade or certificate in Com- monwealth of provided approved course of study and institution where he qualifications has studied fulfill the fixed sections 681-710 this be; as the title, may case Pro- vided, applicants That the qualifications shall meet all the fixed registration this act in the registry. Board’s requisites “The of residence and citizenship United States shall apply engineers, architects surveyors whom the different agencies or instrumentalities of the Government of the Common- *5 of a written specified passing elude a the education, experience. practical minimum and a stated examination, for applicant registra- The that an requires statute also tion be a citizen of the United States. It, however, citizenship alien from the exempts qualified an otherwise he courses” in requirement if has “studied the total the or employed if he is an or by agency Commonwealth, instrumentality government the the Common- by municipal or a or government public corpora- wealth there; tion in the case such employment, the alien only receives a conditional license the during valid time by employed public he is the entity.
B. Maria C. Flores de Otero is a native Mexico and legal by of Puerto Rico. resident She is, profession, is engineer. civil She not a United States citizen. In applied June 1972 she to the Board for registration as a undisputed It engineer. licensed applicant the specifications met all the of formal education, examina- wealth, governments municipal public corporations employ may employ, being or wish to understood that it shall necessary applicants not be employed be so at the time of application registration their or in the registry, appli- Board’s qualifications by shall meet all other fixed sections 681-710 cants registration registry. of this title for in the Board’s “Upon requirements compliance with these a noncitizen of America, States of United board shall issue a conditional graduate certificate engineer, surveyor as architect or or a condi- engineer, tional license surveyor, may be, architect or as the case for practicing professions valid only such performance in the employment they their during employed time are public above-mentioned entities .... “Any engineer, surveyor architect or holding a conditional license graduate or engineer or architect with a conditional certificate who citizenship obtains of the United States of America shall be apply reregistration entitled to reregistered and be in the Board’s registry graduate engineer as a or architect, or engineer a licensed architect, or a licensed surveyor, may as the be, case in accord- ance requirements with all the other of the Board.” *6 of that except for required licensure,- practice and tion, appli- her denied Board citizenship. United States citizenship. that of proof furnished until she cation in the action an instituted Flores In October of Puerto District for the District Court United States She members. individual its Board and against and (3),4 §C. 28 U. S. under asserted of violative was requirement citizenship that alleged A 1983. §§ under U. S. C. rights her requested. were relief injunctive declaratory judgment and the defend- complaint, to Flores’ In answer their Court lacked District that the United alleged ants and that complaint, entertain the jurisdiction to secured rights not contravene of 689 did provisions Fourteenth Amendments Fifth and under the under Constitution. to Flores rights guaranteed adequate remedies Flores had They alleged also that of Rico and that in the courts Puerto available to her They requested those remedies. she had not exhausted assuming jurisdiction from the court “abstain this and allow the Courts the Commonwealth case the issues opportunity pass upon Puerto Rico the by plaintiff.” App. raised 5. Spain Nogueiro
C. Perez a native Sergio by resident of Puerto Rico. He legal is, profession, from engineer. possesses degrees civil He universities Spain and Colombia and from the of Puerto University Rico. He is not a citizen. He, United States like specifications met Flores, education, all formal practice required except for examination, licensure, 4Federal-question jurisdiction (a) under 28 U. S. C. 1331 defendants, appellants here, acknowledge not asserted. The who are they general jurisdiction “are not here concerned with the the local District Court under statutes such as 28 U. S. C. [Federal] Appellants 1331.” Brief 6. [§] presently em- citizenship. He is that of United States Department an the Public Works ployed engineer and holds Rico, municipality Carolina, by the as authorized granted a conditional license Board, passed after he examination.5 required May In against 1974 Perez instituted an action Board6 in Court for the Dis the United States District citizenship trict Puerto Rico. He asserted that *7 requirement repugnant “is to Due Process Clause the App. the Fifth or 10. The Fourteenth Amendments.” filed complaint respects by all relevant was like that Perez, declaratory in- too, requested and and Flores, junctive a relief, including full and unconditional li practice cense as engineer to an the Commonwealth. A three-judge D. court was to hear convened Flores’ case. It determined that it had under 1983 and 1343. It that §§ concluded abstention was unnecessary because 689 was and unambiguous not susceptible an interpretation that would obviate the need reaching question. constitutional On with one judge rejected merits, dissenting, justifications proffered by the defendants for the citizen- ship requirement. It found requirement unconsti- given The appellee certification part: Perez reads in approval “That grafts of this right examination him the practice solely exclusively employee ENGINEERING as an Agencies and instrumentalities of the Rico, Commonwealth Municipal Governments and Corporations. Public
“I, FURTHER CERTIFY: That imposed the limitation on MR. right practice SERGIO PEREZ Engineering NOGUEIRO are required those . . . citizenship. because his MR. SERGIO PEREZ automatically NOGUEIRO entitled to be registered as an ENGINEER without presents limitations as soon as he Naturalization Certificate as App. American Citizen.” 8-9. complaint was later to include the amended individual parties members of the Board as defendant. Flores the defendants to license
tutional and directed an engineer. as
In separate subsequent judgment the same three- by judge vote, granted like relief court, same he, be en- Perez. licensed an too, It decreed gineer. Jurisdictional Statement 7a.
Appeals from both judg- were taken the defendants jurisdictional pursuant with a ments, single statement to our 15 (3). probable jurisdiction Rule We noted stay granted a the execution and enforcement of judgments. U. S.
II On jurisdictional appellants do con- issue, not tend that the United Constitution has no applica- tion in Puerto Rico7 or cognizable that claims' under may be enforced there. they argue Instead, that unless complainant juris- establishes $10,000 (cid:127)dictional amount prescribed (a),8 C. 1331 a claim otherwise cognizable under must ad- § 1983 be *8 judicated in the courts of Puerto Rico.9
In approaching question this we are to examine the language of 1343, § the purposes of Congress enacting “and it, the circumstances under which the words were employed.”10 Puerto Rico R.), Shell Co. (P. v.
7 argument, At appellants oral the conceded that the “Fourteenth Amendment the or Fifth applicable Amendment is people to the Puerto Rico.” Arg. Tr. of Oral 5. 8 (a) Title 28 U. S. C. provides: 1331 § “The original district courts shall have of all civil actions controversy wherein the matter in the exceeds sum or value $10,000, exclusive costs, of interest and arises under the Constitution, laws, or treaties of the United States.” 9 Appellants Brief for 6, 9-10; Arg. Tr. Oral 37. 10Using approach, this the (a) Court has held that the statutes of Puerto are Rico not “State” statutes for purpose of our
581 v. Ltd., District Columbia (1937); 302 U. 258 S. 253, Carter, frequently As is (1973). 409 420 so 418, U. S. of ambiguity, not free language the case, however, appear to be and sometimes con- purposes diverse spread fully and the circumstances are tradictory, our upon the record for instruction.
A. federal with which we rights legislation, The civil years nearly are before here enacted concerned, the conflict with Spain and the establishment resulting of the ties between Puerto Rico and the States. United (3) § Both the Ku origin § 1983 have their Klux of April Klan Act § Stat. 13. That 1871, 1, statute only pro- contained not provision substantive tecting against deprivation “the rights, privileges, immunities by any per- secured the Constitution” son under acting color of state well, law, but, jurisdictional provision for the authorizing proceeding enforcement of rights prosecuted those “to be appellate jurisdiction (2), under 28 U. C. S. Fornaris § Ridge Co., (1970), (b) Tool 400 U. S. 1n. but statutes of are purpose Puerto Rico “State” statutes of the three-judge provision court C. Calero-Toledo v. S. Leasing Pearson Yacht Co., 669-676 U. S. upon
first practice decision was based the Court’s to construe narrowly authorizing statutes Congress’ pro- appeals, failure to statute, vide a parallel 1258, authorizing C. appeals from Supreme Court of Puerto Rico under the same circum- appeals stances as highest from the courts States. The recognized greater second autonomy decision afforded Puerto its assumption with early commonwealth status in the 1950’s. Inclusion of the statutes of Puerto Rico within 28 U. S. C. purpose served the insulating sovereign “of State’s laws from *9 by single judge.” interference S., 416 U. at 671. See also Andres v. States, United 740, 333 U. (1948); S. 745 Puerto Rico v. (P. R.), Shell Ltd., Co. 302 (1937); U. S. 257-259 253, and City Bank, Domenech v. National 199, (1935). 294 U. 204-205
582 of the United States.” circuit courts district or several was defined; given independently was not Jurisdiction by rights created the substantive to enforce simply to deemed were aspects, two statute. The seemingly, coincide. of the purpose legislation
It has been said that the provisions the Fourteenth, enforce Carter, District Columbia v. Amendment. Thirteenth, Corp., Lynch Household Finance v. 423; at S., (1972); Monroe 405 U. S. U. S. Pape, Act (1961). originally As of the 1871 enacted, applied only any to action under color of law of “State.” presumably In its pursuant however, Congress, power to “make needful Rules Regulations all re Territory Property other specting belonging or States,” granted United the Constitution’s Art. IV, § without 2, added, cl. the words “or explanation, Territory” in the 1874 codification of United States stat utes. Rev. Stat. See District Colum Carter, bia v. at n. 11. The evident aim S., 11The provided: first section of the 1871 Act any who, person any “That law, statute, under ordinance, color of regulation, custom, usage any or State, subject, shall or cause subjected, any person to be within the of the United deprivation any States to the rights, privileges, or immunities secured the Constitution of the States, shall, any United such law, statute, regulation, ordinance, custom, usage of the State contrary to the notwithstanding, be injured liable to the party law, equity, action proper suit in or other proceeding for redress; proceeding such prosecuted to be in the several district or circuit courts of States, the United subject with and to the same rights of appeal, upon error, review provided other remedies like courts, cases in such provisions under the of the act April, eighteen ninth of sixty-six, hundred and entitled 'An act to protect persons all in the United States in their rights, civil to furnish the means of vindication'; their and the other remedial laws of the United States which are in their applicable nature such cases.”
583 residing in the Territories persons was insure that all of by persons not be under color territorial acting denied, them the Constitution and law, rights guaranteed laws of the United States.12
Although might say purpose Congress one that implement was the method chosen to this aim evident, In curious somewhat and, confusing. indeed, 1874 codification, only portion (the pred- the substantive today’s ecessor of 1983) § of the 1871 Act was § separated from redesignated §as 1979.13 It became jurisdictional portion today’s (the predecessor § (3)) which appeared § 563 Twelfth and 629 Six- § teenth the district courts and (concerning, respectively, the circuit courts) the Revised But Statutes. words “or Territory” appeared only they in did 1979; not appear in 629. §§
Our question, then, separately in whether, codifying provisions and in having discrepancy this between Congress intended to jurisdic- federal-court them, restrict tion in way. some We conclude that intended no such restriction. First, as stated above, common origin of (3) §§ and 1343 1§ of the 1871 Act suggests provisions two were meant be, are, complementary. Lynch v. Household Finance change Another codification, effected with the and without ex . planation, was the addition in words “and laws” following the words “the Constitution.” changes These were appeared 1979 as it retained Rev. Stat. provided: Section 1979 “Every person who, any statute, color of ordinance, regu- under lation, custom, usage, any Territory, or subjects, State or or causes subjected, to be citizen of the person United States or other jurisdiction within the deprivation thereof to the any rights, privileges, or immunities secured laws, Constitution and shall party injured be hable to the in an law, action equity, suit in proper proceeding other for redress.” Corp., 405 U. at 543 There is indication S., n. 7. no intended to federal prevent district circuit courts from exercising subject-matter deprivation of claims of of terri- rights under color *11 they torial law if of personal jurisdiction otherwise had necessarily the parties. contrary interpretation Second, lead persons residing would to the conclusion in a that Territory effectively were not afforded a federal-court remedy there for despite a violation of the 1871 Act Congress’ obvious intention then to afford one. The existing by Congress territorial district courts established were granted “the in all jurisdiction, arising same cases under the Constitution and laws States, United in is vested circuit and district courts of the United (1874) States.” Rev. (emphasis added).14 § Stat. if the Thus, federal district and circuit had juris- courts to deprivations only diction redress under color state (but territorial) law, territorial courts were so likewise limited. Further, United States District Courts for the Districts of California Oregon, the territorial District Court for Washington possessed jurisdiction over violations of laws extended to the Terri- tory of Alaska. Rev. (1874). Stat. § Unless the jurisdiction federal courts had deprivations redress rights persons acting under color of law, territorial then The territorial courts were in those the Territories of New Mexico, Utah, Colorado, Dakota, Arizona, Idaho, Montana, and Wyoming. Territory Washington governed by Rev. 1911 (1874), Stat. provided, which part, in § that its territorial district courts shall have “the same in arising all cases under the Constitution of States, the United and the laws of the Territory, as is vested in the circuit and district courts United quoted States.” It will be noted that the language does not include “and laws” after “Constitution.” Section the.words contrast, did. The omission rectified, was soon however. Rev. Stat. Congress’ provide of the 1871 Act explicit extension remedy against persons acting under color of territorial forum existed only law was theoretical because no rights which might these be enforced. Congress
This conclusion granted territorial courts jurisdiction to provisions enforce the strengthened Congress two additional factors. First, explicitly provided: “The Constitution and all laws locally inapplicable the United which are not orga- have shall the same force and effect within all the every Territory nized Territories, hereafter organized as elsewhere within the Rev. United States.” 1891 (1874). Stat. with its reference Section obviously applicable Territories was an statute. Sec- ond, year it was not until following conferred on general United States district courts federal- *12 question jurisdiction.15 Act of 18 3, § Mar. 1875, 1, now Stat. codified as 28 1331 (a). U. S. C. 470, § Koota, Zwickler generally See 241, v. 245-247 15Original “arising jurisdiction under” was in the vested federal by 1801, courts 13, 11, 92, Act of 2 repealed Feb. but was Stat. § year by 8, 1802, later of 21, Act Mar. 132. There Stat. § nothing along 3, further line this until Act of Mar. 1875. Carter, See District 418, (1973). Columbia v. 409 U. S. 427 20n. (1874) Revised Stat. provided: §5600 arrangement “The and classification of the sections of several the revision been made purpose have for the aof more convenient orderly arrangement same, of the and therefore no inference or presumption legislative of a construction is be to drawn reason Title, under particular which placed.” section is provision This support lends some to our conclusion that the failure to add the Territory” jurisdictional words “or to the successor 1 legislative of the 1871 Act was mere oversight. § Had 1 re- § intact, Territory” mained the words “or would have been added part jurisdictional substantive of 1 while the part would have proceeding continued to read prosecuted “such to be in the several district 13, circuit courts of the United States.” 17 Stat. 586 unless in 1874 the federal district
(1967). Accordingly, deprivations jurisdiction and circuit courts had redress although provid- Congress, under color of territorial law, failed to could be said to have ing rights and remedies, provide a means for their enforcement. the federal conclude that reasons,
For all these we courts district and circuit as the federal territorial well of con- deprivations to redress generally had color of terri- by persons acting under rights stitutional legislation specifically to the turn, then, torial law. We applicable to Puerto Rico. by Congress in its approach A similar was taken
B. government in Puerto establishment of the civil under Art. power Const., the exercise of its territorial 1754 By Treaty 30 IV, 3, Paris, cl. 2.16 Stat. United (1899), Spain ceded Puerto Rico to the States. Shortly thereafter, being 30 1755. the Foraker Act, Stat. Act This April became law. 12, 1900, 77, Stat. legislation government established a civil powers by Const., Congress IV, vested in Art. cl. Carter, District Columbia v. govern Territories are broad. County Yankton, National Bank 430-431; S.,U. at v. U. S. Canter, American Insurance (1880); Co. Pet. Rico, Treaty Paris, the case of Puerto And (1899), specifically 30 Stat. provided: rights “The civil political hereby status of the native inhabitants of the territories Id.., by Congress.” ceded to the United States shall be determined powers fully. Thus, 1759. exercised its *13 Act, appoint, Foraker the 31 Stat. President was authorized to Senate, with the advice and consent of the the of Puerto Governor id., Rico, justices 81; and its chief executive of officers, Supreme Rico, Court judge of Puerto and the of United States Id., required addition, Congress District Court there. In at 84. by assembly that “all legislative laws enacted shall [Puerto Rico] reported be States, hereby to the of the United which power authority, advisable, reserves the if deemed to annul the Id., same.” at 83. including provisions judicial for struc courts. Rico, system ture so created consisted of local court with a Supreme Court, and, well, of District Court.17 a Federal The Act, 34,31 provided: Stat. district “The [federal] court ordinary juris . . . shall have, addition to the diction of district juris courts of the United States, cognizant diction all cases in the circuit courts of United States.” On its this face, appears grant to have been a broad jurisdiction similar to on that conferred the United States district courts and comparable that conferred on the earlier territorial courts. The earlier territorial were grants, different. Federal Whereas the however, District Court ordinary for Puerto Rico was to have “the jurisdiction of district States,” courts the United given by earlier territorial had explicitly, courts been Rev. Stat. noted same above, jurisdiction, “the arising all cases under the Constitution laws of States, the United as is vested in the circuit and district courts of the United might One expect States.” systems separate This establishment two of courts stands only legislation system contrast to other territorial where one courts, including supreme court, district courts and was established given jurisdiction vested in United courts. See Rev. 1864-1869, (1874). Stat. States, See v. United also Palmore §§ U, 402-403 provided part: Section 34 in relevant judicial “That Porto Rico shall constitute a district to be called 'the district of President, Porto Rico.’ The and with the advice Senate, and consent appoint judge shah a district ... years, a term of four unless sooner removed the President. The district for said court district shall be called district court of have, United States for Porto Rico . . . and shall in addition ordinary jurisdiction to the States, district courts of the United cognizant of ah cases in the courts of the United circuit States, proceed and shall therein in the same manner aas circuit court.” 31 Stat. 84. *14 necessarily en- in the former grant jurisdiction
the grant same as the or was the compassed over the was divided Congress, however, in the latter. to Puerto extended the Constitution question whether Congress possessed by its or whether own force the consti- Ricans to from Puerto power the withhold the persons to within all guarantees tutional available Rep. See S. earlier Territories. several States and (1900); Rep. No. 1st H. No. 56th Sess. R. Cong., (1900).19 56th 1st Cong., Sess. in the Congress The within was reflected division despite some Thus, Puerto Rico. legislation governing 12-13, support measure, Rep. 249, pp. No. for the see citizenship to Congress grant declined to inhabitants Cong. (1900). And, Rec. 3690 of Puerto Rico. Congress contrast to some earlier territorial legislation, did not Rico the Constitution expressly extend on the statutes of Puerto impose United States or they Rico then in effect the condition that be continued only if consistent with United States Constitution.20 report majority The the House consider Committee ing legislation for Puerto Rico concluded: States,’ authority
“First. the term upon That reason and ‘United Constitution, only as used in the has reference to the States Territories. constitute the Federal Union and does not include legislation power Congress respect “Second. That the with Cong., plenary.” Rep. for Territories is H. R. No. 56th Sess., 1st id., minority report, adopts by
But see the at 17-20. This reference weight “The authorities Representative the views of Newlands: vigore, profirió Constitution, ex proposition sustain that the [s] created the Constitution controls the action of the Government Id., 29. operates, Territories.” wherever it whether in States or considering proposed legislation Senate Committee surveyed government previous territorial a civil in Puerto Rico when, circumstances, the and under what legislation to determine It con- Territories. had extended the Constitution *15 undoubtedly At the same time, however, Congress of aware the 1891 provid- § above-mentioned Rev. Stat. ing : “The Constitution all laws of the United States which locally are not inapplicable the shall have same every force and effect Territory orga- ... hereafter nized as elsewhere within no the United Yet States.” mention of this statute was made the Foraker Act. In contrast, years two later, Congress § made 1891 ex- pressly inapplicable government when it a civil created for the Territory of July the Act of Philippines. 1, c. 1902, 1369, 1,§ 32 Moreover, Congress, Stat. 692.21 by 14 the § of Act, Foraker to Puerto Rico extended statutory “the laws than the internal revenue [other that, rule, organization eluded as Territory of had not been accompanied by 1850, an extension of the Constitution. Not until Congress when government Territory established a for the of New Mexico, explicitly provide: did it Constitution, “That and all laws of the United locally States inapplicable, which are not shall have the Territory same force and effect within said of New 9, Mexico as elsewhere within Sept. the United Act of States.” 1850, 49, 17, 249, c. 9 Rep. Cong., Stat. 452. See No. 1st S. 56th § Sess., (1900). provision subsequent 6 This became the model for legislation. territorial 21 provisions eighteen ninety-one “'The of section hundred and eighteen seventy-eight Revised Statutes of hundred and shall not apply Philippine Nevertheless, to the Islands.” 32 Stat. 692. people Philippines of the unprotected Congress were not left because provided also rights guaranteeing them with a bill of the most by protections basic persons afforded within Constitution to Kepner States, the United States. Stat. 692. See v. United § 195 U. S. Bidwell, (1901), In Downes v. presented S. this which constitutionality opportunity Court with its first review the Act, Mr. Justice Brown Foraker referred to Rev. Stat. opinion significance S., in his no but attached to it. 182 U. at 257. contrast, States, In the Court in Dorr v. United (1904), express relied on the 1902 Act’s exclusion hold- ing Constitution, required except by insofar its own terms, Philippines. did not extend to the locally inapplicable,” United States
laws] providing remedies 80,22 and Rev. Stat. Stat. Constitution guaranteed deprivation rights acting under persons of the United and laws potentially least color territorial law was at “applicable.” legislative Act its his For
This review of the
alter
was uncertain
conclusions:
tory
several
leads
respecting Puerto Rico and
powers
of its own
*16
At the
applied there.
extent to which the Constitution
implicitly,
at least
time,
recognized,
same
it
respon
questions
of these
ultimate resolution
9-12; H. R.
Rep.
pp.
No.
sibility of this Court. S.
249,
appears
Congress
Thus
pp. 9-15, 25-28.
Rep.
249,
No.
to be
rights
personal
question
to
left the
have
orderly
Rico to
to the
of Puerto
accorded
inhabitants
further
and to whatever
this Court
development
for them.
provision Congress
might
itself
make
Rico,
to the District Court in Puerto
grant of
sufficiently
per
appeared to be
broad
nevertheless,
persons
rights by
those
deprivations
mit redress of
Police
law.
Insular
under color of territorial
See
acting
2d
cert.
Comm’n v.
676-677
F.
Lopez,
673,
(CA1),
language
(1947). Nothing in the
risdiction accorded the earlier territorial courts Rev. Stat. and its language, containing limitations, no cautions against reading us it exception into an supported by persuasive legislative in the evidence history.
Subsequent legislation respecting Puerto Rico tends to support uncertainty the conclusion that over the application of the Constitution did not lead deprive the inhabitants of Puerto Rico of a federal forum for rights vindication of whatever In did exist. Organic Act of 1917, sometimes known as the Jones Act, 39 Stat. Congress made more explicit juris- diction of the Federal District Court by according “jurisdiction of all cognizable cases in the district courts States,” the United 965; generally granted Stat. Puerto Rico citizens United States citizenship, 5,§ 953; and Stat. codified for Puerto Rico a bill rights, 39 Stat. 951. bill This of rights, which remained in effect until 1952, provided nearly Puerto Ricans with personal guarantees all the found in the United States very Constitution.23 The first provision, example, *17 read: “That no law shall in be enacted Porto Rico which deprive any shall person of liberty, or life, property without process deny any due of or law, person therein equal protection of the laws.” These words are almost identical with the language the Fourteenth Amendment; and when Congress selected it must them, have done so with the Fourteenth Amendment
23 2 Act, 951, only major Section of the Jones 39 Stat. left two exceptions: right, Amendment, under the Fifth not to "be held capital, crime, answer for a or otherwise infamous on unless presentment Jury,” or indictment of a right, Grand and the under Amendments, jury the Sixth and Seventh to a trial. See Balzac v. Rico, 298, (1922); Rep. 1779, Porto 258 U. S. 306 S. No. 81st Cong., Sess., (1950); Rep. 2275, 2d Cong., H. R. No. 81st 2d Sess., (1950). development further view to mind with a
in
and
Kep
it.
in
embodied
See
the doctrines
Court of
this
In its
(1904).
States,
100,
195 U. S.
ner v. United
stage
clearly set the
Act,
the Jones
passage of
to enforce
in Puerto Rico
for the federal court
1979)
(Rev.
§
Stat.
predecessor
§of
1983’s
provisions
“under color
deprivation
prohibited the
which
usage,
or
custom,
regulation,
statute, ordinance,
im
privileges,
Territory
any rights,
any . . .
...
See
laws.”
by the Constitution
munities secured
Co.,
F. 2d
& Power
Ry. Light
Rico
Munoz
Porto
v.
denied,
Only years Congress responded two later, to demands
593 24 Act greater autonomy for Puerto Rico with the July 3, legislation, c. 319. This Stat. 446, 1950; offered, compact” people of a to “the “nature Rico,” of Puerto C. authorized them § U. S. 731b, to draft their own however, constitution “shall which, provide republican form of in- government and shall clude a bill rights,” § U. S. 731c. The pro- C. posed constitution thereafter submitted declared was drafted “within our union with the United States of America,” and that among “determining factors in our life” were considered “our citizenship of the United States of America” and “our loyalty to the principles of Federal Constitution.” Preamble the Constitu- tion of P. R. Rico, p. Laws Ann. 207 (1965). following See note 48 U. S. C. 731d. Congress approved the proposed constitution after adding, among other things, a condition any amendment or revision of the document be consistent with “the applicable pro- visions of the Constitution of the United States.” Stat. 327.25 The condition accepted, the compact 24In qualified given had voters Puerto Rico right governor by to select their popular suffrage. own Act of Aug. 5,1947, c. 61 Stat. 770. purpose explained: the condition was
“Applicable provisions of the United States Constitution and the Federal Relations Act will have the same effect as the Constitution of the United respect States has with to State constitutions or State locally laws. United States inapplicable equal laws not will have force throughout and effect in Puerto Rico as except States provided Any otherwise in the Federal Relations Act. act of the Legislature Puerto Rican in conflict . with . . the Constitution locally the United United States inapplicable laws not would be null and void. framework, people
“Within this of Puerto Rico will exercise self-government. regards matters, As sphere local of action government and the methods of bear a resemblance to that of Rep. Cong., Sess., State of the Union.” 2d No. 82d *19 594 “Common- Rico assumed Puerto effective, and
became numerous repeal of in the This resulted status. wealth” the bill including Act 1917, of Organic the provisions of 446, c. July 1950, 3, Act of Act contained. rights of the known as became The remainder 64 320. Stat. 319. 4, 64 Stat. Act. Rican Federal Relations Puerto by enter Congress, whether arises question The then by implication repeal intended into the ing compact, Puerto District Court of jurisdiction the Federal the not. As We think §C. 1983. Rico enforce 42 U. S. Leasing Yacht Pearson in Calero-Toledo was observed in Congress Co., purpose of S., Rico to accord to Puerto legislation was 1950 and 1952 normally asso autonomy independence and the degree accordingly, with States ciated Union, legislature; Rico its Governor Puerto “now ‘elects offi lesser its appoints all cabinet officials, and judges, its educational sets own branch; cials in the executive its own amends its own policies; budget; determines ” codq.’ Leibowitz, generally criminal civil and See Commonwealth Law to the Applicability Federal (1967); Magruder, 221 Rico, Puerto Geo. L. J. Pitt. of Puerto U. The Commonwealth Status Rico, Inc. v. Rico, Puerto (1953); Americana L. Rev. (CA3 2d Kaplus, 368 cert. 1966), denied, F. provisions relating (1967). More importantly, to the of a District Court in jurisdiction Federal Rico were left and there no evidence undisturbed, history support that would a determina legislative In departure.26 tion that intended such a 26Subsequent congressional legislation affecting the Federal Dis trict Puerto Rico further confirms conclusion that Court possesses jurisdiction the same as that conferred on federal dis By 89-571, Pub. L. trict courts in the several States. Stat. judges the tenure of federal in Puerto was made iden- jurisdictional change language of a absence in the legislative or of evidence provision affirmative legisla- into the 1952 unwilling we are read history, District a restriction of the Federal tion *20 Court.
C. to attribute to an Congress Our conclusion not rights protection inclination to of federal leave the exclusively sup- to the Puerto Rico courts is local Carter, 409 ported by District Columbia v. S. 418 U. (1973). There that District was the Court held within Territory meaning neither a nor a State it District, §C. 1983. was oc- The observed, cupies unique system a government. status within our It is the seat of the at Government, and, National Rights time the Civil Act of 1871 was Con- enacted, gress plenary exercised power over its activities. These geographical political considerations, well “the as as absence of any in indication language, purposes, history of legislative § 1983 a intent include the District within the scope of its coverage,” supported the Court’s conclusion. 409 U. at 432. S., focus upon the characterization
Appellants, however, of the District “sui generis in governmental our struc- ture,” ibid., and argue that because the Commonwealth of Puerto Rico is also generis, sui the conduct of persons acting under color of similarly Commonwealth law is tical to that of judges. other United States district The reason given this amendment was that the Federal District Court in jurisdiction, Puerto Rico "is in its powers, responsibilities same as the U. S. district courts Rep. States.” S. [several] 1504, No. Sess., 89th Cong., (1966); 2d see Rep. also H. R. No. 135, Cong., Sess., 89th 1st 2-3 complete identity responsibility of these courts was effectuated in Congress repealed Stat. when 41 of 2, 1917, the Act of Mar. 39 Stat. providing context additional United judges States district throughout the United States, including Puerto Rico. readily 1983.27 con- scrutiny under We
exempted from
occupies
relationship to the
cede that Puerto
in our
but we
parallel
that has no
United States
history,
that
intended to
Congress
think
does not follow
that
relinquish
restricting
federal enforcement
District Court in Puerto
the Federal
Carter,
Rico.
It was observed in
that
S.,U.
enacting
rights legislation
the civil
with
Congress,
recognized
which
it “had
concerned,
we are
neither
nor
authority
the means
exert
direct control,
on
day-to-day
over the actions
officials,”
of state
basis,
the “solution
chosen was to
involve
federal
judiciary.”
similarly
lacked effective control
over actions
taken
although
territorial
its
officials,
authority
govern
plenary.28
practical
The same
*21
27Appellants’ argument
large part
rests in
on
v.
Palmore United
States,
(1973), where,
It fallows that United States District Court for the District of Puerto Rico has under 28 (3) U. S. C. 1343 to enforce provisions of 42 S. C. § 1983.
Ill Appellants, however, argue Court District should have reaching abstained from the merits of the constitutional Co., Ridge claim. Fornaris v. Tool U. S. (1970), is cited example as an of abstention in a Puerto Rico context. We conclude that the District correctly Court determined that abstention was unneces- sary. The presents case question no novel concerning judicially created doctrine; abstention it requires, *22 instead, only application of settled principles re- just viewed last in Term County Harris Comm’rs Court v. Moore, 420 U. 77 (1975). S.
Appellants urge that abstention was appropriate for enforcement of rights civil the Territories more to the similar problem as it existed in the States than in the District of Columbia.” Carter, S., District Columbia v. 409 (footnotes at 430-431 omitted). two reasons. it First, is said that 689§ should be con- strued the commonwealth courts in the light § 1483 of the Civil Code, P. R. Laws Ann., Tit. 31, § (1968). provision This imposes liability on a contractor for defective construction of building. We fail to see, however, how 4124 in way could affect the inter- pretation of § 689 which imposes, exceptions with the that have been noted, requirement of citizenship for the licensing of engineer. an
Appellants’ second argument is that the common- wealth courts should permitted be adjudicate validity of the citizenship requirement light §§ and II Art. Puerto Rico Constitution. 1 P. R. Laws Ann., Const., Art. II, §§ Sec- tion provides: “No discrimination shall be made on account of race, color, sex, birth, origin social or condi- or tion, political religious ideas.” 7 provides: Section person “No in Puerto Rico shall be equal denied protection of the laws.” These provisions constitutional are not so interrelated with may § 689 that be said, as in Harris County, that the law of the Commonwealth is ambiguous. Rather, the abstention clearly issue seems controlled Wisconsin Constantineau, (1971), where, as it was said in Harris County, 420 S.,U. at 8A-85, n. 8, “we declined to order abstention where the federal process due claim was complicated by an unresolved state-law question, even though plain- tiffs might have sought relief under a provision similar of the state constitution.” Indeed, to hold that absten- tion is required because § 689 might conflict with the cited broad and sweeping constitutional provisions, would convert abstention from an exception into a general rule.29 29During argument oral appellants seemed suggest, for the first time, that ambiguous. Tr. of Oral Arg. 36. argu This ment is directed exception to the 689 for aliens “who have
IV particular This takes Rico us, then, Puerto statute before us. Does prohibition Puerto Rico’s against engaging private practice an alien’s in the engineering deprive appellee of “any rights, aliens privileges, or immunities secured the Constitution and laws,” within meaning of 42 U. S. C. 1983?
A. The Court’s
respecting
rights
decisions
of the
inhabitants of
have been neither unambigu-
exactly
ous nor
country’s
uniform. The nature of this
relationship to Puerto
vigorously
Rico was
debated
within the Court as well as within the Congress.30 See
studied the total courses and
corresponding
have received their
grade or certificate in
argument appears
the Commonwealth.” The
presented
also,
to have been
conclude,
to the District Court. We
that,
purposes
present case,
plainly
it is
without merit.
30In a series of decisions that have come to be known as the
Cases,
Insular
incorporated
the Court created the doctrine of
unincorporated Territories,
g.,
Bidwell,
e.
De
Lima
182 U. S.
(1901); Dooley
States,
Armstrong
222 (1901);
v. United
182 U. S.
States,
(1901);
Bidwell,
v. United
182 U.
Downes v.
S.
182 U. S.
(1901).
category encompassed
The former
those Territories
acquisition,
destined for statehood from the time of
and the Consti
See, g.,
tution
applied
to them with full
e. Rassmussen v.
force.
States,
Mankichi,
(1905);
United
The Court, say thus far however, has declined to whether it is the Fifth Amendment or the Fourteenth which provides Calero-Toledo, the protection.32 U. S., at 668-669, n. 5. Once again, we need not resolve precise question because, irrespective of which applies, Amendment statutory restriction on the abil- *25 ity of aliens to engage in the private otherwise lawful practice of civil engineering plainly is unconstitutional. If the Fourteenth Amendment is applicable, Equal Protection Clause statutory nullifies the If, exclusion. on the other hand, is the Fifth its Amendment and Due Process Clause that apply, the statute’s discrim- ination is so egregious that it falls within the rule of Bolling Sharpe, v. 347 U. 497, (1954).33 S. 499 also See Rusk, Schneider v. 377 U. (1964). S. 168 InB. examining validity of virtually Puerto Rico’s complete on private practice ban of civil engineering by aliens, we apply the standards of our recent decisions in Graham v. Richardson, Sugar 403 (1971); U. S. 365
32The United States Court Appeals Circuit, for the First which Puerto part, Rico is a 41, similarly 28 U. S. C. declined has g., to make that determination. Rico, E. Colon-Rosich v. Puerto 256 (1958); Stagg, F. 2d 397 Hough Descartes, Mather & 244 (1957); 2d Mejias, F. 583 (1953). Mora v. 206 F. 2d concepts equal protection process, “[T]he and due both stemming from our fairness, mutually American ideal of are not ‘equal protection exclusive. The explicit of the laws’ is a more safeguard prohibited law,’ and, process unfairness than ‘due therefore, imply always we do not interchangeable the two are But, phrases. recognized, may as this Court has discrimination be unjustifiable so process.” S., as to be violative of due 347 U. at 499. Griffiths, In re Dougall, (1973);
man v. and state These cases establish that U. S. subject on to “strict alienage classifications based are judicial scrutiny.” Richardson, Graham v. U. S., containing 376. Statutes of this kind will classifications upheld only Territory be if them is imposing the State or satisfy demonstrating pur able to the burden of “that its pose or constitutionally both and permissible interest that its of the use classification is 'neces substantial, sary accomplishment’ ... to the or the purpose of its safeguarding of Griffiths, S., its interest.” In re (footnotes omitted). at 721-722 are principles These applicable under to the Puerto statute now consideration. Court’s constitutional deci- underpinnings
sions the circumstances under which state defining may governments country by local favor citizens this denying lawfully equal oppor- admitted aliens rights and tunities squarely have been two. The on the first, based concepts embodied in Equal Protection Clause Fourteenth Amendment and in the Due Process Clause of the Fifth recognizes that as a Amendment, “[a]liens prime class are a example of a 'discrete insular’ *26 minority ... for whom . heightened judicial . . solicitude is appropriate.” Richardson, Graham v. U. at S., 403 372. See also San Antonio Rodriguez, School v. Dist. 411 29 U. S. 1, (1973); Sugarman 413 v. Dougall, S.,U. at 642. The second, grounded in Supremacy Clause, Art. cl. 2, and in the Const., VI, naturalization power, cl. I, Art. recognizes the pri Federal Government’s mary responsibility in the field of and nat immigration uralization. e. Hines See, v. g., Davidowitz, 312 U. S. (1941); 66 Raich, Truax v. (1915). 239 42 U. S. 33, See also Graham Richardson, v. S., 378; 403 U. Takahashi v. Fish Comm’n, & Game S. (1948). aliens against lawfully discrimination admitted
Official Aliens have been traditionally has taken several forms. prohibited public receiving from resources enjoying public citizens. See benefits on the same basis as Richardson, Graham v. Fish & Game supra; v. Takahashi Comm’n, supra. public Aliens have excluded from been Sugarman employment. supra. M. Dougall, v. See Law, The Alien and the Asiatic in American Konvitz, from c. And aliens have been restricted en private gaging in enterprises occupations are lawful. In Griffiths, supra; otherwise See re Truax v. Raich, supra; Yick Wo Hopkins, v. U. S. 356, (1886).34 present into falls statute, course,
the last category. It respect is with to this kind dis- crimination that the States had the greatest have diffi- culty in persuading this Court their interests are constitutionally substantial and and that the permissible, necessary discrimination is for the safeguarding those interests. in Yick Wo Thus, Hopkins v. the Court struck down an ordinance that was so administered as to exclude aliens from pursuing lawful occupation laundry. of a In Truax v. Raich the Court invalidated a state statute that required private employer, having five or more workers, employ at qualified least electors or 80% native-born citizens. And in In re a state statu- Griffiths tory requirement prescribing United States citizenship as a condition for engaging practice in the of law was held unconstitutional. But Ohio see ex Clarke v. rel. Deckebach, 274 U. 392 (1927). placed States also have on restrictions the devolution of real property aliens, Lynham, Hauenstein v. see (1880) ; S. 483
Blythe
Hinckley,
(1901),
U. S. 333
and have denied them
equal rights and opportunities
acquire
land,
and own
see Terrace
Thompson,
Oyama
*27
v.
The reason
occupation
apparent:
otherwise lawful
is
engaging
an
argument
right
to
requires
“It
no
to show
living
occupations
work for a
in the common
of the
very
personal
community is of the
essence of the
opportunity
purpose
freedom and
it was the
of the
Amendment
to secure.
If this
[Fourteenth]
solely upon
ground
could be refused
of race
prohibition
or
of the denial to
nationality,
person
equal protection
of the laws would
Raich,
be a barren form words.” Truax v.
(citations omitted).
S.,U.
at
in Truax
distinction
It
is true that
the Court drew a
against
private
between discrimination
aliens in
lawful
occupations
against
where,
and discrimination
them
might
said,
special
be
the State has a
interest
in afford-
Id.,
ing protection to its own
39^40. That
citizens.
distinction, however,
longer
sharp
no
so
as it then was.
Recently the Court has taken a more
view of
restrictive
powers of a
against
State
discriminate
non-
respect
public
compare
citizens with
employment,
York,
New
(1915), aff’g People
Crane v.
U. S. 195
v.
Crane, 214
Y. 154,
N.
E.
and Heim v.
N.
McCall, 239
175 (1915),
Sugarman Dougall,
U. S.
with
v.
supra;
respect
and with
public
the distribution of
public
compare
funds
the allocation of
resources,
McCready
Virginia,
v.
We do or certainly government, local the Federal Government, may permitted not be some discretion in determining circumstances under which it will employ aliens or may public aliens receive partake whether benefits or *28 In public resources on citizens. the same basis as case, governmental justify each interest claimed to is carefully discrimination to be examined in order legitimate to determine whether that interest is and substantial, inquiry must be made whether adopted necessary to goal means achieve the are precisely drawn. present
In the three appellants case have offered justifications for Puerto almost total ban on aliens’ Rico's engaging private in practice engineering: first is to prevent Spanish- influx of the "uncontrolled” speaking into aliens the field Puerto Rico. The sec- is living. ond to raise the prevailing low standard of is provide The third engineer the client of a civil an accountability assurance financial if a building for engineer which responsible collapses years within 10 Tit, 4124 (1968). construction. P. Laws Ann., R. justification The first amounts to little more than an may justified assertion that by discrimination be a desire to discriminate. unpersuasive This interest is on its face. It is also odds with primary the Federal Government’s power responsibility for regulation of immigra- tion. Once an alien is lawfully admitted, State may justify the restriction liberty of the alien’s on the ground impact wishes control the or immigration Bica, effect federal laws. Cf. DeCanas v. 351 (1976). Although justification the second broad proffered appellants has elements of and legitimacy, substance the means drawn to achieve the end are neither neces- sary nor precise. What the Commonwealth has done its require private is to statute employers and contractors only to hire engineers who are American citizens. This impermissible end was held years ago over 50 in Truax v. Raich, supra. uphold To the statute on basis of justification broad economic of this permit kind would any employment to bar the aliens all State occupations. lawful purpose the asserted to assure responsibility
Finally, negligent workmanship sweeps broadly. too United citizenship guarantee engineer is not a a civil will continue reside Puerto Rico or even in the *29 it States, particular United bears no or rational rela tionship to or responsibility. financial competence, skill, Sugarman Dougall, See 645; In re S., Grif fiths, 413 atS.,U. 724. Puerto Rico has available to it ample other tools to goal engineer’s achieve the of an fi responsibility nancial indiscriminately without prohibit ing private practice the of civil engineering by a class qualified otherwise professionals.
The judgments of the District Court are affirmed.
It is so ordered. Justice took no part Stevens in the considera- Mr. tion decision of this case. Justice Rehnquist, in dissenting part.
Mr. I agree with the Court’s conclusion that the United Court District for the District of Puerto Rico had appellees’ claim under 28 U. S. C. 1343 (3), and that it was not obligated to abstain from reach- ing the merits of I that claim. believe I have some understanding of the difficulties which the Court neces- sarily encounters in then determining whether either the Fifth Amendment or the Fourteenth Amendment to the United States Constitution applies to Puerto Rico. But without attempting recapitulate to the doctrine of the cases from Bidwell, Downes v. S. (1901), to Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. I (1974), do not think inquiry lends itself to the facile “either-or” answer upon which the Court ulti- settles, mately by applica is its terms
The Fourteenth Amendment is not State. ble to Puerto Rico Doubtless States: inquiries shrouded as this one is both constitutional history definitively be answered so and case law cannot I simply reject be inclined to this, as but would claim is applicable Fourteenth Amendment to sufficiently strong Puerto Rico until a case to overcome “plain this meaning” obstacle, language found out.* itself, Amendment made The Fifth Amendment, course, applies Congress, to by Congress and had this statute been enacted would subject be Fifth strictures Amendment. But just certainly it was not enacted Congress, but I Legislature of Puerto perhaps Rico. could regard theory understand this that under Foraker Act, which right reserved annul laws of the Puerto Legislature Rican with which it disagreed, *30 ante, see at 586 legislature n. should be treated delegate as the Congress equally subject to the stric- tures of the Fifth theory Amendment. But such would, very course, face substantial obstacles in view the Congress subsequently provided fact that in the Organic Act of bill giving 1917 a of rights, Puerto Ricans “nearly personal guarantees all the found in the United Ante, (emphasis Constitution.” at 591 supplied).
If the constitutional expressly limitations directed to such Congress, as the Fifth Amendment, directly also restrict the Puerto Rican Legislature by virtue of its being delegate of Congress, only it would not have been su- perfluous for Congress provide an additional bill of wording
*The of the Thirteenth Amendment shows that the Fram- ers of post-Civil War Amendments knew how to word those provisions where it intended guarantees appli- that their have just cation all Territories United States rather than as a upon limit authority government. of state rights; quite impossible it would have been for it to en- delegate dow its power disregard with more individual liberties I may possess. than it itself it would thus find extremely difficult to see how constitutional limitations upon power may ex Congress thought apply be proprio vigore to power Puerto Rican Legisla- ture. following Moreover, passage of the Act of July 3, 1950, and acceptance Puerto Rico’s of Common- ante, wealth status, see at 593-594,1 thought would have only upon restrictions Legislature the elected Puerto Rico were those embodied the Constitution enacted as a condition of assuming that status di- rectly imposed by statute.
In I short, nearly am not ap- as certain as the Court pears to be that either the Fifth Amendment or the Fourteenth govern Amendment must Leg- the acts islature of Puerto Rico. It seems to me it quite possi- ble that neither provision operates as a direct limitation upon the authority of body. that elected I Even if am wrong in I this, would not thought easy have it as as does the Court to avoid more inquiry focused in this case into which provision may applicable. be For if even a State could not, consistent Equal with the Protection Clause of the Fourteenth pass Amendment, the statute chal- lenged by surely appellees, does not follow that Fifth process Amendment’s due upon limitation exercise of authority federal requires an identical con- clusion. Hampton See v. Mow Sun ante, Wong, For 100-101. if for some reason it were to be concluded *31 that placed restrictions upon the Federal Govern- ment were somehow directly applicable to the actions of appellants, it would seem that they would be able equivalently to assert whatever additional authority that Government possesses with regard to aliens. Indeed, rejection of approach this would raise an even more Why upon question: difficult should a restriction authority of the Government the United States, which be may thought concomitant granting rights citizens, United have bearing upon how the of a people Territory of the may United States deal aliens with within their Territory?
If the answers to these questions were dispositive of my I vote in this case, compelled would feel explore them in much more detail than today. does the Court But I even if were conclude one part that Court’s assumption I could correct, not either/or with the agree result which it compelled believes is assumption. I do agree either statute question Equal violates Protection Clause Fourteenth the reasons in my stated Amendment, Sugarman Dougall, dissent U. S.
(1973), that if the subject statute were to the limita- tions of the Fifth Amendment, is infirm reason of their application. Hampton Wong, ante, v. Mow Sun p. 117 (RehNQTjIST, J., dissenting). I would therefore re- verse the decision District Court.