TENNEY, District Judge:
The historical and political events giving rise to this appeal began almost four decades ago at the beginning of the United States' involvement in World War II. In response to the deteriorating situation in the Pacific, President Roosevelt issued an order on July 26, 1941 calling all organized military units of the Commonwealth of the Philippines into the armed forces of the United States. On March 27, 1942, Congress amended the Nationality Act of 1940, Pub.L. No. 76-853, 54 Stat. 1137 ("the 1940 Act"), to provide for the naturalization of non-citizens who served in the United States armed forces, Second War Powers
Pursuant to the Act, Immigration and Naturalization Service (INS) officers were sent to overseas military posts to naturalize noncitizen members of the United States armed forces. Between 1943 and 1946, these officers traveled from post to post through England, Iceland, North Africa, and the Pacific naturalizing thousands of foreigners. Matter of Naturalization of 68 Filipino War Veterans, 406 F.Supp. 931, 935 (N.D.Cal.1975) (hereinafter cited as 68 Veterans). Although the Act could not be effectuated in the Philippines during the Japanese occupation, from 1942 to 1945, approximately 7,000 Filipinos were naturalized in the United States or at military posts outside the Philippines. Memorandum for the Attorney General from Assistant Solicitor General Hugh B. Cox, dated June 23, 1945 ("Cox Memorandum"), at 2. Implementation of the Act commenced there following the liberation of the Philippines and the resolution of statutory interpretation questions concerning the eligibility of Filipino servicemen under section 701-702.
The Philippines were scheduled to become an independent, self-governing country on July 4, 1946, less than one year after Vice Consul Ennis began naturalizing eligible Filipinos. See Philippine Independence Act of 1934, Pub.L. No. 73-127, § 10(a), 48 Stat. 463. Apparently, the Philippine government feared that a mass emigration of newly naturalized Filipinos to the United States would drain the country of much needed manpower and thwart post-war reconstructive efforts. See Memorandum to Ugo Carusi, INS Commissioner, from Edward J. Shaughnessy, Special Assistant to the Commissioner, dated October 19, 1945 ("Shaughnessy Memorandum I"), at 1. This concern was conveyed to the United States Department of State which passed the information on to the Commissioner. On September 13, 1945, the Commissioner wrote to the Attorney General:
Memorandum to Tom C. Clark, Attorney General, from Ugo Carusi, INS Commissioner, dated September 13, 1945 ("Carusi
Several months after the Philippines lost its naturalization representative, Congress enacted a statute that appropriated funds for the Philippine Army and provided that service in that Army, pursuant to President Roosevelt's 1941 order, was not to be deemed service in the United States armed forces. First Supplemental Surplus Appropriation Rescission Act of February 18, 1946, Pub.L. No. 79-301, 60 Stat. 14.
The INS appointed a new naturalization representative for the Philippines, P. J. Phillips, who began processing petitions in August 1946. From that time until the Act expired (December 31, 1946), Phillips naturalized approximately 4,000 Filipinos pursuant to section 702. 68 Veterans, supra, 406 F.Supp. at 936. No INS official was present in the Philippines to implement the Act during the nine month period after Ennis's naturalization authority was revoked and before Phillips was appointed.
Petitioner Antonio Olegario, a sixty-one year old Philippine citizen, served in the Army of the Commonwealth of the Philippines from December 20, 1941 to December 2, 1945.
Olegario concedes that he neither filed a timely naturalization petition nor made any attempt to do so. He contends, however, that his constitutional rights were violated by "the arbitrary action of the Commissioner ..., with the approval of the Attorney General, which resulted in the removal of the Vice Consul from the Philippines during 1945-46 ... and precluded petitioner, and Filipino servicemen similarly situated, from exercising the opportunity to become naturalized pursuant to Sections 701-702 of the [Act]." Brief of Petitioner-Appellee ("Petitioner's Brief"), at 25. The district court agreed with this contention and, reversing a decision rendered by an INS naturalization examiner, granted Olegario's naturalization petition. Relying on Judge Renfrew's comprehensive opinion in the 68 Veterans case, supra, Judge Knapp concluded that the petitioner "had been denied due process of law in a manner which could only be remedied by now admitting [him] to citizenship." While recognizing the import of Judge Renfrew's discussion, and the substantial arguments made by the petitioner and amicus on appeal, we are constrained to disagree with that result.
Several preliminary issues and arguments must be addressed before the constitutional question presented by this appeal can be fully examined. These issues, in turn, require some further background discussion of legislative history and prior cases involving Filipino veterans seeking United States citizenship.
Statutory and Case Law Background
In 1952, Congress enacted a new Immigration and Nationality Act that appeared to extinguish some of the naturalization rights granted to alien servicemen under the 1940 Act. Immigration and Nationality
Act of September 26, 1961, 75 Stat. 650, codified at 8 U.S.C. § 1421(e). The House Judiciary Committee's Report on the amendment clearly explains Congress's intent in enacting this measure.
 U.S.Code Cong. & Ad. News, pp. 2981-82.
After this explicit statement of congressional intent regarding the 1952 Act's savings clause, petitioners seeking naturalization under the 1940 Act presented the courts with more creative arguments. In INS v. Hibi, 414 U.S. 5, 94 S.Ct. 19, 38 L.Ed.2d 7 (1973), a Filipino who had served in the United States armed forces applied for naturalization under the 1940 Act in September 1967. Hibi argued that the government was estopped from relying on the statute's expiration date and time limit because it had failed to advise him of his rights under the Act during the time he could have applied and had failed to provide an INS representative in the Philippines during the entire time he was eligible for naturalization. The district court agreed with Hibi's contentions, and its decision was upheld by the Court of Appeals for the Ninth Circuit. Without hearing oral argument in the case, the Supreme Court summarily reversed the Ninth Circuit in a brief per curiam opinion from which three justices dissented. The Court held that although
Affirmative misconduct, as well as constitutional violations, were found by the district court in 68 Veterans, supra, which involved a similar challenge to the withdrawal of naturalization authority from the Philippines. The petitioners in that case were sixty-eight Filipinos who had served in the United States armed forces during World War II and were seeking naturalization pursuant to section 702 of the 1940 Act. Judge Renfrew divided the petitioners into three categories. Category I included those who had taken affirmative action amounting to "constructive filing" of a naturalization petition prior to December 31, 1946. Category II consisted of those veterans who were eligible for citizenship under the 1940 Act but made no efforts to file a petition before the Act expired. Category III included those petitioners who were in the same position as those in Category II except that they had no proof that they served in the United States military as required by Section 701.
Judge Renfrew held that the Category I petitioners should be granted citizenship because, unlike Hibi, they had presented evidence of affirmative misconduct by the government and had taken steps amounting to the "constructive filing" of naturalization petitions. With respect to Category II, the judge ruled that "the failure of the Government to have stationed in the Philippine Islands a representative of the INS authorized to naturalize members of the American armed forces pursuant to Section 702 of the Nationality Act of 1940 during all of the times those statutory rights were available denied petitioners due process of law." 406 F.Supp. at 951. Category III petitioners were granted ninety days before their petitions would be dismissed to provide proof of service in the American armed forces.
Judge Renfrew's constitutional analysis began with the determination that these petitioners, although not citizens, were protected by the due process clause of the Fifth Amendment during the time that the INS representative was withdrawn from the Philippines. Upon reviewing the Philippine Independence Act and various definitions in the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(3), (22), (31), he concluded that Filipinos were nationals of the United States until July 4, 1946 when the country became fully independent.
Id. at 951.
The government appealed the decision in 68 Veterans. However, the Department of Justice subsequently moved to dismiss the appeal on the basis of a recommendation by the Commissioner. On November 30, 1977, an order dismissing the Ninth Circuit appeal was entered.
After the appeal was dismissed, the government reevaluated its policy regarding Category I and Category II petitioners. The government has now adopted Judge Renfrew's view with respect to Category I cases and will not oppose these petitions because it is conceded that these aliens were prejudiced by the government's failure to process their applications in 1945 and 1946. However, the government strongly disagrees with Judge Renfrew's decision that Category II petitioners should be granted citizenship because they were previously denied due process of law. In Category II cases, the government will not oppose naturalization only if the application was filed before the appeal in 68 Veterans was withdrawn. The reason offered to support this differentiation among Category II cases is that "the failure of these applicants to press their cases to judgment could have resulted from their expectation that they would receive the same treatment as the aliens in [68 Veterans]." Brief of Respondent-Appellant ("Government's Brief") at 14. Pursuant to this policy, several other appeals have been withdrawn. This case has been pursued, however, because Olegario filed his naturalization petition after November 30, 1977.
Collateral Estoppel and Failure to Appeal
The Association of Immigration and Nationality Lawyers ("Association"), which has submitted an amicus brief supporting the petitioner, argues that the collateral estoppel effect of the decision in 68 Veterans precludes the government from contesting the decision of the district court in this case. According to the Association, 68 Veterans resolved the precise issue raised in this case, and "having failed to prosecute its appeal ..., [the government] should be prohibited, on the principle of collateral estoppel, from litigating the same issue all over again." Brief of Association of Immigration and Nationality Lawyers, Amicus Curiae ("Amicus Brief") at 10. The Association's argument relies on the Supreme Court's decision in Parklane Hosiery Co., v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), which approved the use of "offensive" collateral estoppel under certain circumstances. While the government agrees that Parklane is critical to this determination, it disagrees with the Association's application of the case and contends that collateral estoppel should not be applied here. The court concurs.
In contrast to Parklane, the government is the defendant here, and the case raises important issues of national concern. As stated by the government "a determination to forego further judicial review of an adverse decision, as in [68 Veterans], may result from a variety of factors — scarcity of resources, potential impact, public interest — which are unrelated to the legal issues in the case." Reply Brief of Respondent-Appellant ("Government's Reply Brief") at 3-4. If each adverse decision were accorded the collateral estoppel effect urged by the Association, the Solicitor General would be forced to seek review of cases that would not otherwise be appealed. "While the Solicitor General apparently thought the problem of Filipino War Veterans would end with [68 Veternas], the case has spurred litigation rather than settled the issue." Id. at 4-5. None of these subsequent cases was decided on the grounds that the 68 Veterans decision collaterally estopped the government from contesting the naturalization petition. Nor will we resolve the case at bar by relying on the collateral estoppel doctrine.
The Association also contends that denial of Olegario's petition would constitute a due process violation because the government failed to contest the naturalization of similarly situated petitioners in the 68 Veterans case and other applicants who filed their petitions before November 30, 1977, when the 68 Veterans appeal was withdrawn. In the Association's view, the government offers "no rational basis" for distinguishing between the two groups of petitions and the "arbitrary cutoff date has no bearing whatever to one applicant's eligibility over another's." Amicus Brief at 13. The government, in turn, contends that it had an affirmative duty to review its decision to withdraw the appeal once it became evident that the impact and practical consequences of the 68 Veterans decision were much more substantial than had originally been anticipated. See Bentex Pharmaceuticals, Inc. v. Richardson, 463 F.2d 363, 368 n.17 (4th Cir. 1972), rev'd on other grounds sub nom. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973). The government describes its policy of not contesting any petitions that were filed before the appeal was withdrawn as "an attempt to draw the line on the claims of Filipino war veterans while at the same time according those who had not adopted a `wait and see' attitude the benefits obtained by the aliens in [68 Veterans]." Government's Reply Brief at 5.
While the court agrees that the government's cutoff date is unrelated to an applicant's eligibility, this observation is also besides the point. The government was entitled to reassess its initial view of the decision and to reverse its position on the case. Even after the appeal was dropped, the government apparently could have challenged other petitions filed before withdrawal of the appeal. The cutoff date, although somewhat confusing, thus appears to benefit petitioners who would otherwise be subject to the same government challenge asserted here.
The government's failure to appeal the 68 Veterans decision may have suggested to some applicants that they could not successfully seek naturalization under the 1940 Act despite Congress's restrictive interpretation of the savings clause and the Supreme Court's opinion in Hibi. However, neither the petitioner nor amicus allege that any authorized government official discouraged
The Political Question Doctrine
The government contends that the court should not entertain Olegario's claim because it involves a nonjusticiable political question.
Writing for the Baker Court, Justice Brennan described the fundamental attributes of the political question doctrine.
Id. at 217, 82 S.Ct. at 710; see Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Sneaker Circus Inc. v. Carter, 566 F.2d 396 (2d Cir. 1977); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974); Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971).
None of the "formulations" described above is "inextricable" from the case at hand. While the Constitution commits the responsibility for foreign affairs to the executive and legislative branches, see Art. I, § 8; Art. 2, § 2, this grant of authority is not dispositive. As stated in Baker, "it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance." 369 U.S. at 211, 82 S.Ct. at 707. Furthermore, this case concerns naturalization, a matter involving both foreign and domestic affairs, and the power to establish policy in this area is expressly delegated to Congress. Art. I, § 8, cl. 4 ("The Congress shall have Power ... To establish an uniform Rule of Naturalization"). Indeed, one of the petitioner's principle contentions is that Congress's intent to grant citizenship to Filipinos like himself was thwarted by the actions of executive officers.
The precise "issue" in this case involves the due process constraints on the executive's authority. This question — in contrast to the wisdom of a foreign policy decision — is not textually committed exclusively to the political branches. Finally, it has been suggested that the "constitutional commitment" criteria should be deemphasized in foreign affairs cases because such cases are clearly not automatically immune from judicial review even though the Constitution vests foreign affairs authority in the political branches. See 68 Veterans, supra, 406 F.Supp. at 945-46; Atlee v. Laird, 347 F.Supp. 689, 703 (E.D.Pa.1972) (three judge court), aff'd summarily, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973). Adopting this view, we now turn to the remaining political question formulations described in Baker.
The government contends that there is a lack of "judicially discoverable and manageable standards" for deciding this case. According to the government, this case turns on whether the executive's withdrawal of naturalization authority from the Philippines contravened an act of Congress and occurred without congressional approval or authority. Relying on Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869,
The plaintiffs in Orlando charged that the Vietnam War was unconstitutional because Congress had not expressly declared war on that country. This court rejected the government's argument that the claim was not justiciable. Because "the constitutional delegation of the war-declaring power to the Congress maintains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war [, j]udicial scrutiny of that duty ... is not foreclosed by the political doctrine." Id. at 1042. The court concluded, however, that the constitutional propriety of the means chosen by Congress to ratify the military action was a political question. This choice was "committed to the discretion" of Congress, and no "objectively manageable standards" existed by which to judge such action. Id. at 1043-44.
In contrast to Orlando, this action does not involve a constitutionally imposed duty of "mutual participation in the prosecution of war." Id. at 1042. Although the naturalization statute at issue here was enacted and implemented during World War II, it was not a military measure and did not directly concern the war effort. Orlando, unlike the instant action, arose at a time of intense national debate over the manner in which the war was being conducted. Given some evidence of congressional participation (i. e., the Tonkin Gulf Resolution and appropriation statutes), the Court refused to prescribe the exact manner in which Congress had to signal its agreement or approval. Olegario is neither seeking such a directive nor asking the court to resolve a case for which no manageable standards exist. His claim that his due process rights were violated by the executive's allegedly unauthorized acts can be resolved according to established constitutional principles. See 68 Veterans, supra, 406 F.Supp. at 946.
This court can render a decision in this case without making an "initial policy determination of a kind clearly for nonjudicial discretion." Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710. The government does not contest this point. While the court is not equipped to judge the merits of naturalization laws or the wisdom with which they are implemented, it can determine whether the government's actions were arbitrary, unauthorized, and unconstitutional.
Resolution of this action would not reflect any greater "lack of respect due coordinate branches of government" than other judicial inquiries into the constitutionality of executive action. See 68 Veterans, supra, 406 F.Supp. at 947. The government contends that both political branches endorsed the action challenged here and cautions the court against unwarranted intervention in foreign affairs. But, as declared in Baker, foreign affairs cases, which often involve joint legislative and executive action, are not automatically immune from judicial review. Furthermore, the petitioner argues that the executive's actions contravened Congress's intent, and the question of congressional approval is a hotly debated issue in this case. Adjudication of Olegario's claim would not express undue disrespect towards the other branches of government.
This case does not present "an unusual need for unquestioning adherence to a political decision already made." Id. The government argues that "[t]he decision of the court below and in [68 Veterans] open a pandora's box of problems in administering the 1952 Act and in accommodating the large numbers of eligible veterans who may seek to qualify under the 1940 Act." Government's Brief at 29. The multifarious problems anticipated by the government include difficulties in proving eligibility, potential for fraud, administrative confusion, and the inherent hardships in assimilating the large numbers of veterans and their families who would likely come to the United States pursuant to the Act. While we are sympathetic to the government's
68 Veterans, supra, 406 F.Supp. at 947 n.24.
Finally, the court concludes that resolution of this case would not create the "potentiality of embarrassment" from divergent governmental statements feared by the Baker Court. 369 U.S. at 217, 82 S.Ct. at 710. The government contends that "[t]he prospect that a court ... could reverse a considered policy decision .. can be expected to chill future American initiatives in the international arena." Government's Brief at 31. This sweeping assertion, however, overstates the government's case. The executive action challenged here occurred almost thirty-five years ago and has not been the subject of extensive political debate. Neither the historical nor political events giving rise to this action reflect the usual state of foreign affairs and the case is easily confined to its facts. Attempting to magnify the impact of a decision in this area, the government argues that 68 Veterans established that "an American court had the authority to order the naturalization of foreign nationals at the United States Embassy in their country despite the objections of the foreign government." Id. We disagree with this reading of the case and are confident that other nations will not be so misled.
Olegario's claim is thus not foreclosed by the political question doctrine under any of the standards described in Baker v. Carr, supra.
Section 310(e) of the 1952 Act, 75 Stat. 656, 8 U.S.C. § 1421(e), was enacted in 1961 to countermand several decisions broadly construing the 1952 Act's savings clause as preserving rights established by the 1940 Act. See discussion supra. The section provides that any petition filed after September 26, 1961 will be governed by the 1952 Act requirements then in effect. The naturalization examiner who originally denied the petition in this case ruled that section 310(e) barred Olegario from relying on the 1940 Act's eligibility requirements. The government, relying on United States v. Pasion, 524 F.2d 249 (9th Cir. 1975), contends that a decision in Olegario's favor would lead to the "administration of two
The petitioner in Pasion was a Philippine citizen who had served in the United States armed forces from 1945 until 1949. More than thirty years later, he came to the United States and applied for citizenship. Pasion conceded that he had to satisfy the 1952 Act naturalization standards currently in effect, which required that he be admitted to the United States for permanent residence. Although Pasion did not have permanent resident status, he argued that his military service satisfied this requirement by virtue of section 2 of the 1940 Act, 54 Stat. 788, which provided in part that "service in the Regular Army honorably terminated shall be credited for purposes of legal residence under the naturalization laws." The Ninth Circuit Court of Appeals held that even assuming arguendo that section 2 applied to Filipinos after June 30, 1943 and that it was not repealed by implication by inconsistent provisions in later acts, section 310(e) required that all petitions meet the current standards. Pasion's "arguably implied status survive[d] only by operation of [the 1952 Act's savings clause]," and section 310(e) "foreclose[d] reliance on that implied status to meet the requirements of [the Act]." 524 F.2d at 251. The court stated that if Pasion's arguments were accepted, all noncitizens who served in the armed forces before 1952 would be entitled to naturalization solely on the basis of their military service because, under section 2, this service would satisfy the permanent residence requirement. Id. at 252. The petitioner in the instant action is not relying on an implied status arguably preserved by the 1952 Act's savings clause. Olegario contends that his naturalization petition should be granted to remedy the due process violation allegedly committed by the government. The Pasion court did not consider the question whether section 310(e) should be applied to deny a constitutional remedy, and the Ninth Circuit's ruling is inapplicable to the case at bar. While Congress may repeal a statute, or amend it in response to judicial interpretations, such legislation does not automatically cut off the rights of those persons who were unconstitutionally deprived of statutory benefits to which they were previously entitled. Judge Knapp, reversing the naturalization examiner's decision in this case, stated that nothing in the legislative history of section 310(e) indicated that Congress was addressing the situation of those Filipino veterans such as the petitioner who had been unable to exercise their rights under the 1940 Act in 1946. Similarly, in Petition of Neria, supra, slip op. at 16-18, 27, section 310(e) did not prevent the court from granting citizenship to a petitioner who alleged that the government's failure to advise him of his naturalization rights under the 1940 Act denied him due process of law.
In Hibi, supra, the Supreme Court rejected the petitioner's claim that the government should be estopped from relying on the 1940 Act's expiration date because it had failed to publicize the naturalization opportunities available under the Act and had failed to assign an INS representative to the Philippines during the entire time the Act was in effect. As noted above, the Court held that such action, or inaction, did not constitute the kind of "affirmative misconduct" that could give rise to an estoppel against the government. The Court did not, however, rule that Hibi was barred from asserting a claim under the 1940 Act by the section 310(e) requirement that all petitions be judged by the stricter 1952 Act standards now in effect. Nor will this court apply that provision to bar Olegario from challenging the constitutionality of executive action that allegedly denied him the opportunity to apply for a benefit granted by Congress. Of course, as in Hibi,
The Hibi Decision and Laches
The government contends that the district court erred in granting Olegario's naturalization petition because such equitable relief is foreclosed by the Supreme Court's decision in Hibi. In the government's view, since the petitioner concedes he is not eligible under the 1952 Act requirements, the only available remedy is to estop the government from relying on the requirements now in effect. Such estoppel, according to the government, would not reflect the merits of Olegario's claim or the manner in which it was presented, but would presume some type of governmental misconduct that justifies barring the government from refusing to grant Olegario the citizenship for which he is otherwise ineligible. The government argues that Hibi clearly precludes this result because the Court there ruled that the executive action challenged did not give rise to an estoppel against the government. The government's argument, however, relies on an overly broad reading of the Hibi decision which we reject.
Hibi was a split decision that summarily reversed the Ninth Circuit in a per curiam opinion rendered on the basis of a petition for certiorari without full briefs and oral argument. The Supreme Court issued a narrow ruling based solely on estoppel and "affirmative misconduct"; the constitutional issue raised here was neither presented nor considered in that case. While Hibi argued that the doctrine of equitable estoppel should bar the government from denying his petition, Olegario contends that naturalization is the appropriate remedy if a constitutional violation is established. The Supreme Court's decision rejecting Hibi's legal theory and denying him relief on those grounds does not foreclose this court's consideration of Olegario's quite distinct due process claim. See 68 Veterans, supra, 406 F.Supp. at 942-43. The constitutional issue remains unresolved and, if a violation is found, this court is free to order the appropriate relief. See Swann v. Board of Education, 402 U.S. 1, 12, 91 S.Ct. 1267, 1274, 28 L.Ed.2d 554 (1970) ("Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent equitable remedies."); United States v. Vincent, 524 F.2d 153, 160-61 (2d Cir. 1975) (accord).
The government also argues that the relief sought by Olegario is barred by the equitable doctrine of laches. To invoke the doctrine successfully, the government must establish that its interests were prejudiced by Olegario's lack of diligence in pursuing this claim. Emle Industries, Inc. v. Glen Raven Mills, Inc., 478 F.2d 562, 574 (2d Cir. 1973); Trafalgar Shipping Co. v. International Milling Co., 401 F.2d 568, 571 (2d Cir. 1968). The government purports to find support for its laches defense in the Supreme Court's Hibi decision. The Court there stated that "[Hibi's] effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail." 414 U.S. at 9, 94 S.Ct. at 22. According to the government, "[a]lthough the Court did not use the word laches, that principle obviously was what the Court had in mind." Government's Brief at 43. This court, however, is less confident about its mind-reading ability, and the government's hypothesis appears unfounded. The sentence quoted above, which was the final statement preceding the Court's order, merely reiterated the Court's conclusions and the result in the case. After finding that the government's alleged misconduct did not constitute grounds for estoppel, it is highly unlikely that the Court would then rule that Hibi's claim was barred by laches. If the Court had so ruled, the doctrine would probably have been expressly applied as an alternative ground for the decision. Nothing in the Supreme Court's or Ninth Circuit's opinion in the case suggests that laches was asserted or considered as a defense to Hibi's suit.
The government has not established that the petitioner has "slept upon his rights."
The government argues that it was prejudiced by the petitioner's delay in asserting his claim because "[a]gainst the explicit intentions of Congress, it is forced to administer two naturalization laws simultaneously and to defend against recent claims relating to occurrences over thirty years ago." Government's Brief at 44. Yet the government has already agreed to the simultaneous administration of two naturalization laws pursuant to its policy of not opposing Category I petitions relying on the 1940 Act and Category II cases filed before November 30, 1977. The INS, therefore, will be reviewing petitions and making recommendations in cases just like the one at bar. While the government is rightfully concerned about fraudulent claims, it need not grant citizenship to any alien who cannot establish his eligibility. The court in 68 Veterans, for example, held that Category III petitioners, who failed to provide adequate proof of military service, would be denied relief unless the necessary proof were supplied to the INS within ninety days. In this case, the government concedes that the petitioner satisfies the eligibility requirements of the 1940 Act, and the only disputed factual issue — the date that Olegario was discharged from the army — was resolved in the government's favor by the district court. The government's decision to process and grant other 1940 Act petitions indicates that the proceedings could go forward without undue hardship. In short, the government has failed to establish that it will be unfairly prejudiced by Olegario's delay in instituting this action.
Neither the Supreme Court's Hibi decision nor the equitable doctrine of laches bars Olegario from pursuing this claim.
Olegario's Constitutional Claim
We agree with Judge Renfrew's conclusion in 68 Veterans that Filipinos like the petitioner were United States nationals protected by the Constitution until the Philippines became an independent country on July 4, 1946. See Johnson v. Eisentrager, 339 U.S. 763, 771, 780, 70 S.Ct. 936, 940-944, 94 L.Ed. 1255 (1950); Balzac v. Porto Rico, 258 U.S. 298, 312-13, 42 S.Ct. 343, 348, 66 L.Ed. 622 (1922); Dorr v. United States, 195 U.S. 138, 146-47, 24 S.Ct. 808, 811-812, 49 L.Ed. 128 (1904); Downes v. Bidwell, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). The government does not contest this point. All the parties thus agree that Olegario can assert a claim based on the Due Process Clause of the Fifth Amendment and the Equal Protection rights derived from that provision. See Hampton v. Mow Sun Wong, 426 U.S. 88, 100, 96 S.Ct. 1895, 1903,
The Fifth Amendment prohibits the government from depriving an individual of "life, liberty, or property, without due process of law." U.S.Const. amend. V. To invoke the procedural protections of the Constitution, a litigant must establish that the individual interest asserted is encompassed within the right to "life, liberty, or property" protected by the amendment. See Ingraham v. Wright, 430 U.S. 651, 672, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1976); Board of Regents v. Roth, 408 U.S. 564, 569-72, 92 S.Ct. 2701, 2705-2706, 33 L.Ed.2d 548 (1972). Olegario alleges that he was "arbitrarily precluded from exercising a `liberty' right, created by a congressional act, to apply for naturalization." Petitioner's Brief at 26. According to the petitioner, "[s]ince this right was created by virtue of legislation, it was neither inchoate, contingent, or a mere expectancy, but rather a vested one in which petitioner `[had] a legitimate claim to entitlement.'" Id., quoting Board of Regents v. Roth, supra, 408 U.S. at 564, 92 S.Ct. at 2701.
Naturalization proceedings began in the Philippines in August 1945 and were terminated on October 26, 1945. Olegario remained eligible for naturalization under section 702 until December 2, 1945 when he was discharged from the army. He argues that any deprivation of the opportunity to apply for naturalization — no matter how brief — is constitutionally significant. As amicus points out, Filipino servicemen could not have known about the naturalization law prior to the liberation of the Philippines and they never received any official notification afterwards. See Petition of Neria, supra. Naturalizations began as the war was drawing to a close and many Filipinos were soon discharged from the army and ineligible for citizenship. The Association asserts that "the halting of naturalization ... had the effect of preventing news of the law from reaching qualified veterans in the only way it could — by word of mouth." Amicus Brief at 40. The petitioner and amicus thus argue that because the government's alleged misconduct significantly affected Olegario's legal rights, he is entitled to relief without proving that word would have reached him or that he would definitely have been naturalized if the Vice Consul's authority had not been revoked.
The court agrees that this case does not turn on whether Olegario can prove that he would have been naturalized but for the Attorney General's decision to withdraw the naturalization examiner from the Philippines. This inquiry addresses Olegario's standing to bring this action which is neither challenged by the government, see Government's Brief at 16, nor questioned by the court. The petitioner has demonstrated "an injury to himself that is likely to be redressed by a favorable decision," Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976), and has shown a "`fairly traceable' causal connection between the claimed injury and the challenged conduct." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72, 98 S.Ct. 2620, 2630, 57 L.Ed.2d 595 (1978), quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261, 97 S.Ct. 555, 561, 50 L.Ed.2d 450 (1977).
Contrary to Olegario's assertions, however, a constitutionally protected "legitimate claim [of] entitlement" to American citizenship was not at stake in this case. The 1940 Act did not grant Filipinos such as the petitioner a vested right to citizenship; it liberalized the requirements and established a mechanism, to be implemented by the Commissioner and the Attorney General, to enable soldiers overseas to apply for naturalization. See Greenholtz v. Inmates of Nebraska Penal & Correctional Facility,
1. Executive Authority and Congressional Intent
Absent a congressional grant of statutory authority, the authority of the executive branch is limited to the express and implied powers of Article II of the Constitution, insofar as those powers are not inconsistent with Congress's legislative authority as defined in Article I. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38, 72 S.Ct. 863, 870-871, 96 L.Ed. 1153 (1952) (Jackson, J., concurring); In re Grand Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1306 (M.D.Fla.1977). The Constitution thus provides a rough guide to the proper allocation of authority between the political branches, see Kennedy v. Sampson, 511 F.2d 430, 434 (D.C. Cir. 1974), and the executive cannot act as a lawmaker without a delegation of authority or mandate from Congress. See Commissioner v. Acker, 361 U.S. 87, 92, 80 S.Ct. 144, 147, 4 L.Ed.2d 127 (1959); Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 235 (8th Cir. 1975), cert. denied, 424 U.S. 966, 96 S.Ct. 1461, 47 L.Ed.2d 733 (1976). The Constitution's grant of executive authority does not include the right to nullify legislative acts or ignore statutory directives. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411-13, 91 S.Ct. 814, 821-822, 28 L.Ed.2d 136 (1970); Zieske v. Butz, 412 F.Supp. 1403, 1406 (D.Alaska 1976); Sioux Valley Empire Elec. Ass'n, Inc. v. Butz, 367 F.Supp. 686, 698 (D.S.D. 1973), aff'd, 504 F.2d 168 (8th Cir. 1974); Catano v. Local Bd. No. 94 Selective Serv. Sys., 298 F.Supp. 1183, 1188 (E.D.Pa.1969).
The petitioner contends that the Commissioner and the Attorney General were clearly charged with a duty to implement the statute but failed to execute this mandate and acted in a manner contrary to an explicit congressional act. Congress was not informed that the INS representative had been withdrawn from the Philippines and few, if any, members were aware of this development. The Commissioner's action was never expressly ratified by Congress. The Association asserts that other legislation enacted at this time evidences Congress's firm intent to provide generous naturalization opportunities for Filipino servicemen. For example, amicus states that at the end of 1945, Congress passed a statute extending the deadline for filing petitions under section 702 until December 31, 1946. Act of December 28, 1945, Pub.L. No. 79-270, § 202(c)(1), 59 Stat. 658. And, according to the Association, Congress did not share the Attorney General's concern about depriving the Philippines of manpower. Shortly after the INS representative was called back, a law was enacted that authorized the recruitment of 50,000 Filipinos to serve with American occupation forces in the Far East after the war. Armed Forces Voluntary Recruitment Act of 1945, Pub.L. No. 79-190, § 14, 59 Stat. 543. In the view of the petitioner and amicus in this case, "there is scant evidence, if any, of the `mutual participation' by Congress in the halting of naturalizations in the Philipines .. [and] the issue remains ... whether the decision to stop naturalizing qualified veterans there thwarted the will of Congress as expressed in [sections] 701-705." Amicus Brief at 23-24.
The government paints a very different picture of the political climate in which this decision was made. It contends that the manner in which the Act was implemented was left to the executive's discretion pursuant to section 705. The Commissioner's responsibility to enforce the Act could only extend to situations where implementation was feasible. According to the government, "given the real opposition [by the Philippine government] to naturalization in the Philippines, these executive actions may have been the only means by which the 1940 Act could have been implemented ..., and thus may well have facilitated the naturalization examiner's return in 1946." Government's Brief at 41. The government also asserts that there was some cooperation in this area between the executive and legislative branches. Not only did the Commissioner assign a new naturalization examiner to the Philippines nine months later, but Congress never acted to reverse or compensate for the Commissioner's decision and refused to extend the section 702 filing deadline beyond the December 31, 1946 expiration date. See 68 Veterans, supra, 406 F.Supp. at 946 n.23. In addition, the government points to what it disingenuously describes as "documents showing the involvement of the Senate Committee on Territories and Insular Affairs" to demonstrate that Congress concurred
Finally, the government argues that even if the withdrawal of the naturalization examiner frustrated the provisions of the 1940 Act, the action was neither unreasonable nor unconstitutional. According to the government, the executive has discretion to suspend implementation of congressional acts where continued enforcement would be contrary to Congress's intent in adopting such programs. Although Congress may have sought to extend naturalization opportunities to Filipinos, "it clearly could not have intended to do so over the objections of the Philippine Government." Id. at 42.
Undoubtedly, it is difficult to ascertain with certainty the degree to which the legislature and the executive worked in tandem, or at cross-purposes, regarding the naturalization of Filipino servicemen. The decision challenged here was made over thirty years ago on the basis of internal government memoranda that described a sensitive political development without providing a detailed discussion of the issue. Subsequent legislative enactments do not provide an unequivocal statement of congressional intent. Recognizing these difficulties, we conclude that neither the petitioner's nor the government's view accurately depicts the situation; the truth, as usual, appears to lie somewhere in between. We also conclude with the withdrawal of the naturalization examiner from the Philippines did not constitute an unconstitutional exercise of executive authority.
The executive branch did not have unbridled discretion in implementing the 1940 Act, and the unilateral withdrawal of the naturalization examiner temporarily frustrated Congress's immediate objective in enacting the statute. Yet the authority granted to the Commissioner to effectuate the Act, with the approval of the Attorney General, see section 705, necessarily included the right to exercise some discretion in enforcing its provisions. For example, no mandatory procedures, schedules, or timetables were prescribed by the Act for assigning INS representatives to overseas locations. The Commissioner was thus free to rotate naturalization examiners from post to post through England, Iceland, North Africa, and the Pacific Islands without making any permanent assignments in these areas. See 68 Veterans, supra, 406 F.Supp. at 935. Not surprisingly, the Act does not address the right of the Commissioner or the Attorney General, in implementing the statute, to respond to political developments in our relations with other governments. Congress's silence, however, "on a subject about which no one had suggested a need to speak should not be interpreted as reflecting an intent either to grant or to deprive" the executive branch of the authority to consider the foreign affairs ramifications of a particular mode of enforcement and to suspend implementation to avoid a confrontation. See United States v. Conroy, 589 F.2d 1258, 1266 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).
In the absence of a statutory mandate or express prohibition, such authority or the implicit intent to grant it may be found in the inherent and well recognized powers of the executive branch. See Youngstown Sheet & Tube Co. v. Sawyer, supra, 343 U.S. at 585-87, 637, 72 S.Ct. at 865-866, 871. While Congress is vested with authority over naturalization, the executive's wide discretion in foreign affairs, see Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103,
Although Congress was neither informed of nor ratified the Attorney General's revocation of the Vice Consul's naturalization authority, the decision does not appear to be patently contrary to Congress's intent when viewed in light of subsequent legislative actions. As noted above, the Association points out that two weeks after the decision was made Congress passed a law authorizing the recruitment of 50,000 Filipinos to serve with American armed forces occupying Japan. This provision was added as a minor amendment, proposed by Senator Hayden, to a comprehensive bill designed to stimulate voluntary enlistments in the armed forces. See 91 Cong.Rec. 9016, 9456 (1945). The recruitment of Filipinos was expressly contingent upon "the approval of the Philippine Government." 59 Stat. 543. As explained by the amendment's sponsor on the Senate floor, "the Philippine Government shall be consulted before any final action under the amendment is taken, because we know that the independence of the Philippine Islands is to take place next year." 91 Cong.Rec. 9016 (1945). The original amendment that was introduced required the approval of the Philippine legislature. It was changed "in conference .. to provide that instead of being approved by the Philippine Legislature it should be approved by the Philippine Government, so as to eliminate any possible chance for controversy between the legislature of the Philippines and the executive department, President Osmena." Id. at 9456 (Remarks of Rep. May on the Conference Report of H.R. 3951).
The legislative history of this provision flatly refutes any suggestion that it reflects congressional intent to widen naturalization opportunities for Filipinos. In response to questions from his fellow Senators regarding the naturalization of Filipinos recruited into the military pursuant to this provision, Senator Hayden stated:
Id. at 9016-17. The Senator's remarks provoked no disagreement or dissent from the
In December 1945, Congress did pass a law providing that petitions could be filed under section 702 until December 31, 1946. Amicus contends that this legislation illustrates Congress's intent to enhance the naturalization opportunities for Filipinos. However, no such intent is evidenced by the Act's legislative history. The Act included a provision stating that no person would be naturalized under section 702 unless that individual had served in the United States armed forces prior to the date the law was enacted. The Senate discussion of the bill focused on the need to prevent previously non-enlisted aliens, who subsequently enlist in the armed forces, from taking advantage of the 1940 Act's liberal naturalization standards. See 91 Cong.Rec. 12324-25 (1945). As succinctly stated by Senator Russell, the Chairman of the Committee on Immigration, "[t]he purpose of the amendment is to terminate the power to grant citizenship, and not to extend it." Id. at 12325.
Id. It is unclear what law the Senator is describing. He may have been referring to an entirely different provision or it is possible that he misunderstood or mischaracterized the present state of affairs. The 1940 Act required that the applicant had been lawfully admitted to the United States, its territories or possessions and had served in the United States armed forces. Under the INS rulings in effect at the time, the Philippines were included in that geographical area, and service in the Commonwealth Army or Philippine Scouts were deemed to satisfy the military service requirement. See Cox Memorandum, supra; Winings Memorandum, supra. The court does not read Senator's Russell's remarks as indicating that he was aware of or approved the decision to withdraw the naturalization examiner from the Philippines. It is significant, however, that in December 1945 the Chairman of the Senate Committee on Immigration apparently acknowledged that Filipino servicemen could not apply for citizenship without coming to the United States. This statement was not questioned, and no disapproval of the law as described was expressed.
In sum, we conclude that the executive's authority to implement the 1940 Act included the right to exercise discretion in the face of a potential diplomatic conflict. The decision to withdraw all naturalization authority from the Philippine Islands for a nine month period was not a manifest abuse of that discretion. Nor do Congress's subsequent legislative actions illustrate an intent clearly inconsistent with that decision.
2. Equal Protection
Olegario argues that the executive action challenged here should be subject to strict judicial scrutiny because it: (1) constituted adverse and unequal treatment of a suspect class; (2) deprived the petitioner of his right to American citizenship; and (3) was performed by the Attorney General and the Commissioner, whose authority to act for the President in foreign affairs is questionable. Alternatively, he suggests that the
In Mow Sun Wong, five aliens who were lawful permanent residents of the United States challenged a Civil Service Commission (CSC) regulation that excluded all noncitizens from eligibility for a federal civil service position. The district court for the Northern District of California rejected the plaintiffs' claim that the regulation violated the equal protection guarantees inherent in the Due Process Clause of the Fifth Amendment. 333 F.Supp. 527, 531-33 (N.D.Cal.1971). The Ninth Circuit reversed. While recognizing that the Fifth Amendment's protection against federal discrimination is not coextensive with the Fourteenth Amendment's prohibitions against the states, the court of appeals held that the justifications proffered by the government could not support a sweeping regulation excluding all aliens from all positions requiring the Civil Service examination. 500 F.2d 1031, 1037 (9th Cir. 1974). The Supreme Court affirmed the Ninth Circuit decision invalidating the regulation, but on quite different grounds. "[A]ssuming without deciding that the national interests identified by the petitioners would adequately support an explicit determination by Congress or the President to exclude all noncitizens from the federal service," the Court concluded that "those interests cannot provide an acceptable rationalization for such a determination by the Civil Service Commission." 426 U.S. at 116, 96 S.Ct. at 1911.
The Court's decision reaffirmed the principle that "overriding national interests" may justify seemingly discriminatory rules and regulations that would be impermissible if adopted by a state. "[T]he paramount federal power over immigration and naturalization" thus foreclosed a simple extension of the Court's Fourteenth Amendment decisions as decisive in this case. Id. at 100, 96 S.Ct. at 1904, citing Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973), and Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971).
426 U.S. at 103, 96 S.Ct. at 1905.
The Court found that the regulation was neither mandated nor approved by Congress or the President. While the CSC has discretionary authority to adopt regulations that will promote efficiency, it cannot rely on considerations that are not "properly the business of the Commission." Id. at 115, 96 S.Ct. at 1911. With one exception, the interests put forth to justify the regulation involved foreign affairs, immigration, and naturalization — areas in which the CSC has no expertise or responsibility. The Court thus concluded that the CSC regulation barring resident aliens from the federal civil service could not survive judicial scrutiny. "Since these residents were admitted as a
The executive branch quickly responded to the Supreme Court's suggestion. Three months after Mow Sun Wong was decided, President Ford issued an Executive Order providing for the exclusion of aliens from the federal civil service. Exec. Order No. 11935, 5 C.F.R. § 7.4 (1976), amending Civil Service Rule VII. That order has survived several court challenges. See, e. g., Jailil v. Campbell, 590 F.2d 1120 (D.C. Cir. 1978); Vergara v. Hampton, 581 F.2d 1281 (7th Cir. 1978), cert. denied, 441 U.S. 905, 99 S.Ct. 1993, 60 L.Ed.2d 373 (1979); Mow Sun Wong v. Hampton, 435 F.Supp. 37 (N.D.Cal. 1977); Santin Ramos v. CSC, 430 F.Supp. 422 (D.P.R.1977). Relying on the Supreme Court's Mow Sun Wong decision, these courts have ruled that the Order was within the statutory grant of executive authority to "prescribe such regulations ... as will best promote the efficiency of the [CSC]," 5 U.S.C. § 3301, and was supported by national interests sufficient to satisfy the appropriate constitutional standard. As stated by Chief Judge Peckham, "when the federal government seeks to sustain a rule discriminating against noncitizens in a manner which would violate equal protection if adopted by a state, it must demonstrate that the rule substantially furthers important federal interests in the regulation of immigration and naturalization." 435 F.Supp. at 44.
Mow Sun Wong and other Supreme Court decisions, e. g., Nyquist v. Mauclet, 432 U.S. 1, 7 n.8, 97 S.Ct. 2120, 2124, 53 L.Ed.2d 63 (1977); DeCana v. Bica, 424 U.S. 351, 358 n.6, 96 S.Ct. 933, 937, 47 L.Ed.2d 43 (1976), firmly establish that "it is the business of the political branches of the Federal Government, rather than that of either the States or the Federal Judiciary, to regulate the conditions of entry and residence of aliens." Mathews v. Diaz, 426 U.S. 67 at 84, 96 S.Ct. 1883 at 1893, 48 L.Ed.2d 478. Moreover, "[t]he equal protection analysis ... involves significantly different considerations [when] it concerns the relationship between aliens and the States rather than between aliens and the Federal Government." Id. at 84-85, 96 S.Ct. at 1894. This principle undermines in part the constitutional analysis in 68 Veterans, which was adopted by the district court in this case. In 68 Veterans, the court relied primarily on Fourteenth Amendment cases holding that alienage was a suspect classification that could be used only if necessary to accomplish a compelling state interest. See 406 F.Supp. at 950, citing Graham v. Richardson, supra, and In re Griffiths, 413 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910 (1973). But see 406 F.Supp. at 948-49 (petitioner's legal theory, which relied on cases applying compelling state interest test to alienage classifications, does not "accurately fi[t] the facts of this case.") However, Supreme Court cases decided after 68 Veterans clearly demonstrate that this heightened judicial scrutiny is not appropriate for federal policies and regulations, particularly in the areas of immigration and naturalization.
It is easier, of course, to state what the standard is not than to define precisely what it is. See De Malherbe v. International Union of Elevator Constructors, 438 F.Supp. 1121, 1135 (N.D.Cal.1977) (Renfrew, J.) ("The Supreme Court in Mow Sun Wong refused to decide what level of scrutiny federal discrimination against aliens should be subjected to ...."). Yet the Supreme Court's decisions do provide some guidance in determining what national interests are sufficiently weighty to support discriminatory treatment of aliens. In Mow Sun Wong, the Court suggested, without deciding, that if the regulation excluding noncitizens from the Civil Service were issued by the President or Congress, "it
Like Diaz, and in contrast to Mow Sun Wong, the government action challenged here did not discriminate between aliens and citizens. Yet the court rejects the government's assertion that because the withdrawal of the naturalization examiner was a foreign policy decision that "affected all foreign nationals in the Philippines" it had no "discriminatory purpose" and was "racially neutral." The Attorney General's decision had an intended adverse impact on Filipino servicemen even if it was not motivated by racial animus. Having concluded that this action was neither unauthorized nor inconsistent with Congress's intent, the question before this court is whether the national interests at stake justified this decision.
The petitioner alleges that "[t]he national interest which the appellant has invoked to justify the arbitrary classification of Filipino war veterans is cloaked with speculation about the need to foster an ally in the Pacific after World War II and the pleas of some unidentified official of the new inchoate Phillipine government that too many Filipino males would be lost to American naturalization." Petitioner's Brief at 37. Petitioner points out that no legislation, resolution, or executive proclamation identified these concerns; they were stated only in internal government memoranda. Finally, Olegario contends that these documents show that the Commissioner was actually concerned about the expected influx of Filipino servicemen, but relied on diplomatic concerns to justify the revocation of naturalization authority.
The government memoranda submitted to the court do show that the impending naturalization of numerous servicemen raised concerns among federal officials apart from those voiced by the Philippine government. See, e. g., Letter to Ugo Carusi, INS Commissioner, from R. B. Shipley, Passport Division Chief, dated April 17, 1946; Memorandum To T. B. Shoemaker from Edwin J. Shaughnessy, Special Assistant to the Commissioner, dated April 26, 1946 ("Shaughnessy Memorandum II"); Shaughnessy Memorandum I, supra; Letter to Ugo Carusi, INS Commissioner, from R. B. Shipley, Passport Division Chief, dated September 10, 1945. Undoubtedly, some officials and politicians were concerned about admitting many newly naturalized citizens into the country and feared the resulting drain on federal benefits. These concerns, however, which appear primarily in memoranda circulated after the Attorney General made the revocation decision, did not undermine his legitimate reliance on the objections expressed by the Philippine government.
In foreign affairs touching on sensitive diplomatic matters, the government may explain or justify its conduct without presenting a complete exposition of the events and considerations giving rise to its actions. As stated by the Supreme Court:
Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., supra, 333 U.S. at 111, 68 S.Ct. at 436; see Zemel v. Rusk, supra, 381 U.S. at 17, 85 S.Ct. at 1281; United States v. Curtis-Wright Export Corp., supra, 299 U.S. at 319-21, 57 S.Ct. at 220-221; Narenji v. Civiletti, 617 F.2d 745 at 747 (D.C. Cir. 1979).
As indicated in the preceding discussion of Mow Sun Wong and Diaz, the Supreme Court is willing to presume the existence of a national interest sufficient to justify the unequal treatment of aliens or a particular class, even in the absence of an official government statement on the issue. In contrast to those cases, the decision challenged here was made by the Attorney General and the Commissioner, not the President or Congress. This distinction, however, does not render the principles enunciated in those decisions inapplicable to the case at hand. Indeed, in Mow Sun Wong, the Court expressly included the INS and the Attorney General in describing the appropriate "level of government" to make a decision depriving aliens of an important interest. The Commissioner and the Attorney General were statutorily authorized to implement the legislation involved in this case. While neither executive office specializes in foreign affairs, both are concerned with foreign policy and diplomatic matters touching on immigration and naturalization. See Narenji v. Civiletti, supra, at 747-748. In this capacity, each serves as the President's agent and is an integral member of the executive branch. Cf. Hampton v. Mow Sun Wong, supra, 426 U.S. at 114, 96 S.Ct. at 1910. (CSC "performs a limited and specific function"). Accordingly, the court concludes that the
Upon concluding that the petitioner's claim is neither a nonjusticiable political question nor barred by Hibi, statutory, or equitable limitations, the court has reviewed the merits of Olegario's constitutional arguments. Olegario was entitled to claim the protections of the Due Process Clause at the time the naturalization examiner was withdrawn from the Philippines. In light of the statutory authority granted to the Commissioner and the Attorney General, and the existing state of foreign affairs, the executive's action must not have clearly contravened Congress's intent or mandate or have unconstitutionally discriminated against a particular class. The court holds that the withdrawal of the naturalization examiner was within the executive's traditionally broad discretion in foreign affairs and did not exceed the authority granted to the Commissioner and the Attorney General to implement the Act. While this action did have an adverse impact on Filipino servicemen, it was justified by a sufficiently important federal interest to satisfy the appropriate constitutional standard.
The decision of the district court is reversed.
406 F.Supp. 941-42 (footnotes omitted).