  Constitutionality of Citizenship Requirement for Participation
        in Small Business Administration’s 8(a) Program

The Sm all Business A dm in istration’s regulation im posing a citizenship requirem ent for participation
   in its 8(a) program fo r disadvantaged contractors is constitutional.

                                                                                                           March 4, 1996

                M e m o r a n d u m O p in io n   fo r th e      A s s o c ia t e G e n e r a l C o u n s e l
                                U .S . S m a l l B u s in e s s A d m i n i s t r a t i o n


   You have requested our opinion as to the constitutionality of a regulation of
the Small Business Administration (“ SBA” ), 13 C.F.R. § 124.103, that limits eli­
gibility for the SBA’s 8(a) program for disadvantaged contractors to businesses
owned by U.S. citizens.1 The SBA has defended the validity of its 8(a) citizenship
requirement on the grounds that such a requirement is consistent with congres­
sional intent. We agree with this conclusion, although we do so based upon a
different legal analysis than the one relied upon by the SBA.

                                                            I.

   Through the Small Business Act (the “ Act” ), 15 U.S.C. §§631-656, Congress
established the 8(a) program to “ promote the business development of small busi­
ness concerns owned and controlled by socially and economically disadvantaged
individuals.” 15 U.S.C. § 631 (f)(2). The Act defines a “ small business concern
owned and controlled by socially and economically disadvantaged individuals”
as “ a small business concern . . . (i) which is at least 51 per centum uncondition­
ally owned by — (I) one or more socially and economically disadvantaged individ­
uals.” Id. § 637(a)(4)(A). Included among the groups specifically identified as
“ socially disadvantaged” are “ Black Americans, Hispanic Americans, Native
Americans, Indian tribes, Asian Pacific Americans, Native Hawaiian Organiza­
tions, and other minorities.” Id. §631(f)(1)(C).
   The Act mandates the creation of the SBA “ to carry out the policies of this
chapter,” id. §633(a), and it authorizes the Administrator of the SBA to “ make
such rules and regulations as he deems necessary to carry out the authority vested
in him by or pursuant to this chapter.” Id. § 634(b)(6). Pursuant to this authority,
in 1979, the SBA promulgated regulations establishing ownership requirements
for 8(a) applicants:

    1Letter for Walter E. Dellinger, Assistant Attorney General, Office o f Legal Counsel, from Eric S. Benderson,
Associate General Counsel, U.S. Small Business Administration (July 19, 1995). It is our understanding that your
request seeks advice with respect to a challenge to §124.103 originally raised by Mr. Eugene Foley, whose cor­
respondence to the SBA is attached to your request. Because Mr. Foley appears to challenge the constitutionality
o f § 124.103, our analysis is limited to the validity o f the regulation under the Constitution.


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           [I]n order to be eligible to participate in the 8(a) program, an appli­
           cant concern must be one which is at least 51 percent uncondition­
           ally owned by an individual(s) who is a citizen of the United States
           (specifically excluding permanent resident alien(s)) and who is de­
           termined by SBA to be socially and economically disadvantaged.

13 C.F.R. §124.103.

  In its preamble to the interim rule, the SBA justified the citizenship requirement
as follows:

           [T]he individual’s social disadvantage must be rooted in treatment
           which he or she has experienced in American society. Each of the
           statutorily designated groups has historically been abused in this
           country (e.g., the enslavement and subsequent disfranchisement of
           Blacks; the near-extermination of Native Americans). The 8(a) pro­
           gram is in large part designed to overcome the effects of such past
           injustices. It is not designed to assist newcomers to America who
           have been oppressed in foreign lands.

45 Fed. Reg. 79,413, 79,414 (1980).

                                                          II.

  The Supreme Court has made clear that, while states are strictly limited by
the Equal Protection Clause of the Fourteenth Amendment in their ability to make
distinctions between citizens and aliens,2 the federal government enjoys far broad­
er authority to classify on the basis of alienage. “ For reasons long recognized
as valid, the responsibility for regulating the relationship between the United States
and our alien visitors has been committed to the political branches of the Federal
Government.” M athews v. D iaz, 426 U.S. 67, 81 (1976). As an aspect of its ple­
nary power over naturalization and immigration, Congress “ enjoys rights to distin­
guish among aliens that are not shared by the States.” Nyquist v. Mauclet, 432
U.S. 1, 7 n.8 (1977).
  However, the federal power over aliens is not “ so plenary that any agent of
the National Government may arbitrarily subject all resident aliens to different
substantive rules from those applied to citizens.” Hampton v. M ow Sun Wong,
426 U.S. 88, 101 (1976). While federal alienage classifications imposed by Con-
   2 In Graham v. Richardson , 403 U.S. 365 (19 7 1), the Supreme Court held that Arizona and Pennsylvania statutes
that imposed durational residency requirements o n aliens seeking welfare benefits violated the Equal Protection Clause
o f the Fourteenth Am endm ent. State classifications based on alienage, the Court concluded, are “ subject to close
judicial scrutiny.” 403 U.S. at 372. In reaching this conclusion, the Court identified aliens as a “ suspect class,”
a “ prim e exam ple o f a ‘discrete and insular’ minority [citing United States v. Carotene Products, 304 U.S. 144,
 152-53 n.4 (1?38)] for whom such heightened judicial solicitude is appropriate.” Id.


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 Constitutionality o f Citizenship Requirement fo r Participation in Small Business Administration’s 8(a)
                                                 Program

gress or the President are subject to “ relaxed scrutiny,” Nyquist, 432 U.S. at
7 n.8, and violate the Fifth Amendment only if they are “ wholly irrational,” M at­
hews, 426 U.S. at 83, similar restrictions established by executive agencies without
clear statutory or presidential authorization may be entitled to less deference. See
Hampton, 426 U.S. at 103.
   Our examination of the citizenship requirement of § 124.103, whether evaluated
under Hampton v. M ow Sun Wong or more standard equal protection or due proc­
ess analyses, leads us to conclude that the regulation survives constitutional scru­
tiny.

A. H am pton v. M ow Sun W ong

   In Hampton v. M ow Sun Wong, 426 U.S. 88 (1976), the Supreme Court ad­
dressed the question whether discriminatory restrictions imposed by executive
agencies should be subjected to more careful scrutiny than those imposed by Con­
gress or the President. At issue in Hampton was a Civil Service Commission regu­
lation that excluded aliens from the federal competitive civil service. Respondents
challenged the regulation under both the Equal Protection and Due Process compo­
nents of the Fifth Amendment.
   The Court framed the issue before it in both equal protection and due process
terms:

          The rule enforced by the Commission has its impact on an identifi­
          able class of persons who, entirely apart from the rule itself, are
          already subject to disadvantages not shared by the remainder of
          the community. . . . The added disadvantage resulting from en­
          forcement of the rule — ineligibility for employment in a major sec­
          tor of the economy — is of sufficient significance to be character­
          ized as a deprivation of an interest in liberty.

Hampton, 426 U.S. at 102. Rather than relying upon a standard equal protection
or due process analysis, however, the Court instead crafted an alternative analyt­
ical approach, based upon due process:3

   3 The Court specifically rejected respondents' suggestion that it apply an equal protection analysis:
      Respondents argue that this scrutiny requires invalidation o f the Commission rule under traditional equal
      protection analysis. It is true that our cases establish that the Due Process Clause o f the Fifth Amendment
      authorizes that type o f analysis o f federal rules and therefore that the Clause has a substantive as well
      as a procedural aspect. However, it is not necessary to resolve respondents' substantive claim, if a narrower
      inquiry discloses that essential procedures have not been followed.
426 U.S. at 103. The dissent took issue with this “ novel conception o f the procedural due process guaranteed by
the Fifth A m endm ent," 426 U.S. at 117 (Rehnquist, J., dissenting), chastising the majority for “ inexplicably
meld[ing] together the concepts o f equal protection and procedural and substantive due process." Id. at 119.


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        [W]e deal with a rule which deprives a discrete class of persons
        of an interest in liberty on a wholesale basis. By reason of the Fifth
        Amendment, such a deprivation must be accompanied by due proc­
        ess. . . . When the Federal Government asserts an overriding na­
        tional interest as justification for a discriminatory rule which would
        violate the Equal Protection Clause if adopted by a State, due proc­
        ess requires that there be a legitimate basis for presuming that the
        rule was actually intended to serve that interest. If the agency which
        promulgates the rule has direct responsibility for fostering or pro­
        tecting that interest, it may reasonably be presumed that the asserted
        interest was the actual predicate for the rule.

Id. at 102-03. Applying this analysis, the Court dismissed various justifications
put forth by the Commission— those related to foreign affairs, treaty negotiations,
and immigration and naturalization— as being outside the agency’s legitimate area
of responsibility. Id. at 115. The only proper concern of the agency — the pro­
motion of an efficient federal service — was, the Court concluded, not a legitimate
basis for such a broad exclusionary rule. Id.
   As noted above, the test outlined in Hampton falls somewhere between a classic
equal protection and due process analysis. Pursuant to the Hampton approach,
where an agency adopts an alienage rule that has a serious impact on interests
entitled to due process protection, and does so without clear statutory or presi­
dential authorization, the agency must make some showing of statutory responsi­
bility for the national interests it asserts as its goals. In our judgment, the SBA
meets this requirement: the rule it wishes to adopt is directly related to its statutory
task of administering the 8(a) program and is a reasonable means of doing so.

B. E q u a l Protection

   The SBA’s regulation also passes muster under a more conventional equal pro­
tection analysis. Notwithstanding the fact that “ all persons, aliens and citizens
alike,” are protected by the Equal Protection component of the Fifth Amendment,
Congress may nevertheless enact rules for aliens “ that would be unacceptable
if applied to citizens.” Mathews, 426 U.S. at 80. Under Mathews, congressional
statutes that discriminate against aliens are subject only to minimal review, the
“ wholly irrational” standard noted above.
   Recently, the Supreme Court confirmed that this minimal standard applies also
to equal protection challenges to restrictions imposed by executive agencies. In
Reno v. F lores, 507 U.S. 292 (1993), the Court reviewed an Immigration and
Naturalization Service regulation requiring unaccompanied alien juveniles to be
placed in detention, pending deportation proceedings. Rejecting the alien juve­
niles’ equal protection claim that they were being treated differently from juvenile

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C onstitutionality o f C itizenship R equirem ent fo r P articipation in Sm all B usiness A dm inistration’s 8(a)
                                                    P rogram

U.S. citizens awaiting federal juvenile delinquency proceedings, the Court sum­
marily affirmed the rationality of the policy, stating simply: “ [T]he difference
between citizens and aliens is adequate to support the [disparate treatment].” 507
U.S. at 306.
  Flores suggests that federal alienage classifications imposed by an executive
agency are subject to the same minimal scrutiny under the Equal Protection com­
ponent of the Fifth Amendment as is applied to congressional statutes. The SBA’s
asserted interest in its citizenship requirement— to ensure that the 8(a) program
benefits members of groups that have historically been abused in the United States
and not those who only have been oppressed in foreign lands— is sufficient to
satisfy this minimal standard.

C. D ue Process

   Finally, we conclude that the regulation raises no issue under a standard proce­
dural due process analysis because the Supreme Court’s decisions establish that
no constitutionally protected liberty or property interest is infringed by §124.103.
The Supreme Court has interpreted the “ liberty” protected by procedural due
process to include “ ‘not merely freedom from bodily restraint but also the right
of the individual to contract, to engage in any of the common occupations of
life,. . . and generally to enjoy those privileges long recognized . . . as essential
to the orderly pursuit of happiness by free men.’ ” B oard o f Regents v. Roth,
408 U.S. 564, 572 (1972) (quoting M eyer v. Nebraska, 262 U.S. 390, 399 (1923)).
Generally, liberty interests include those “ human abilities that do not depend on
the government.” Scott v. Village o f Kewaskum, 786 F.2d 338, 340 (7th Cir.
1986). The 8(a) program, however, is a creature of government: it upends the
concept of “ liberty” to claim that there is a liberty interest in a statutory program
conferring preferential treatment for government contracts. Cf. id. (“ The due proc­
ess clauses are designed to establish regular procedures for governmental interven­
tion in private affairs, and so the claim to process is at its strongest when a person
simply wishes to go about life— be it personal or economic life — without en­
countering the prohibition of the state.” ); LRL Properties v. Portage Metro Hous­
ing Auth., 55 F.3d 1097 (6th Cir. 1995) (holding that property owners have no
liberty interest in continued participation in Section 8 housing rental assistance
program).
  In Hampton, the Supreme Court found that aliens’ “ ineligibility for employment
in a major sector of the economy” — the federal government— was a disadvan­
tage “ of sufficient significance to be characterized as a deprivation of an interest
in liberty.” 426 U.S. at 102. No comparably broad interest is implicated by an
applicant’s participation in the SBA’s 8(a) program. By excluding aliens from
the 8(a) program, the SBA is not imposing on them “ a stigma or other disability”

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that forecloses their freedom to take advantage of other business opportunities.
Roth, 408 U.S. at 573.
   Nor does exclusion from the 8(a) program impair any property interests. To
hold a property interest in a government benefit, an applicant must “ have a legiti­
mate claim of entitlement to it.” Roth, 408 U.S. at 577. The Supreme Court has
never held that an applicant for a government benefit has a constitutionally pro­
tected property interest in receiving it. See, e.g., W alters v. N ational A ss’n o f Radi­
ation Survivors, 473 U.S. 305, 320 n.8 (1985). Thus, to the extent that participa­
tion in the 8(a) program can be considered a government “ benefit,” applicants
have no property right to that benefit. See Software Systems Assocs., Inc. v. Saiki,
1993 WL 294782 (D.D.C. 1993) (finding that an applicant has no property interest
in participation in SBA 8(a) program); see also Blackburn v. City o f Marshall,
42 F.3d 925, 941 (5th Cir. 1995) (“ [T]he mere existence of a governmental pro­
gram or authority empowered to grant a particular type of benefit to one such
as the plaintiff does not give the plaintiff a property right, protected by the due
process clause, to receive the benefit, absent some legitimate claim of entitle­
m en t — arising from statute, regulation, contract, or the like — to the benefit.” ).

                                              III.

   We conclude that the citizenship requirement of 13 C.F.R. § 124.103 is constitu­
tional. The SBA’s asserted interest in its citizenship requirement satisfies both
the criteria set forth in Hampton and the more conventional minimal rationality
standard under the Equal Protection guarantee of the Fifth Amendment. The regu­
lation is equally valid under Supreme Court decisions interpreting the Due Process
guarantee of the Fifth Amendment.

                                                            WALTER DELLINGER
                                                           A ssistant Attorney General
                                                             Office o f L egal Counsel




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