MOW SUN WONG Et Al., Appellants, v. Alan K. CAMPBELL, Director of the Office of Personnel Management Et Al., Appellees

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), which prohibits any alien from taking the examination for, or from generally being given an appointment in, the federal competitive civil service. 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.

I. FACTS

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), 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…