# Amicus Curiae Brief — Morales, Deceased v. Barge-Wagener Construction Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 1003

## Text

MULUN PILE = 4 my ye
ocT 12.1983 swe
IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

JOSE ANTONIO MORALES, et al.,
. Petitioners,
BARGE-WAGENER CONSTRUCTION Co., et al..
Respondents.

On Petition for Writ of Certiorari from the
Supreme Court of Georgia

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND BRIEF AMICUS CURIAE OF
UNITED STATES OF MEXICO, LEAGUE OF UNITED
LATIN AMERICAN CITIZENS AND
MEXICAN AMERICAN LEGAL DEFENSE AND
EDUCATIONAL FUND IN SUPPORT OF PETITIONERS

EDUARDO PENA KOTELES ALEXANDER
National Legal Advisor Counsel of Record
LEAGUE OF UNITED LATIN NIHAR R. MOHANTY
AMERICAN CITIZENS ALEXANDER, GEBHARDT,
1314 19th Street, N.W. APONTE & MARKS
Washington, D.C, 20036 Lee Plaza—Suite 805
(202) 835-1555 SHOl Georgia Avenue

Silver Spring, MD 20910
(301) 589-2222

KAN (301) HR9-25283

ANTONIA ILERNANDEZ
E. RICHARD LARSON
KEVIN G. BAKER

MEXICAN AMERICAN LIc. RAMON NiLOTL-RAMIREZ
LEGAL DEFENSE AND Consul General
EDUCATIONAL FUND I; MBASSY OF MEXICO

634 South Spring Street 2827 16th Street, N.W.

11th Floor Washington, D.C. 20009

Los Angeles, CA 90014 (202) 736-1010

(213) 629-2512

Attorneys for Amici Curiae

October 18, 1993

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

IN THE
Siuprenwe Court of thy United States

OCTOBER TERM, 1993

No. 93-342

Jose ANTONIO MORALES, et al.,
Petitioners,
Vv.

BARGE-WAGENER CONSTRUCTION CoO., et al.,
Respondents.

On Petition for Writ of Certiorari from the
Supreme Court of Georgia

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The above amici move pursuant to Rule 37.2 of the
Rules of this Court for leave to file the attached brief
amicus curiae in support of the petition for Writ of Certio-
rari. Petitioners have consented to the filing of this brief
(consent letter has been filed with the clerk of this Court),
but Respondents have withheld their consent. Amici rec-
ognize that the Court’s Rules disfavor unconsented amici
briefs, but because the matter raised by the Petitioners’
Writ of Certiorari petition affects primarily Mexican legal
immigrants to the United States, amici are compelled to
file. The amici joining in this motion represent the Mexi-
can population who legally immigrate to the United States
and are directly affected by similar workers’ compensation
Statutes.

Wherefore, the Uniied States of Mexico, the League of
United Latin American Citizens, and the Mexican Ameri-
can Legal Defense and Educational Fund request that this
Court grant leave to file the accompanying amicus curiae
brief in support of the granting of Petitioners’ Writ of

Certiorari.

EDUARDO PENA

National Legal Advisor

LEAGUE OF UNITED LATIN
AMERICAN CITIZENS

1314 19th Street, N.W.

Washington, D.C. 20036

(202) 835-1555

ANTONIA HERNANDEZ
E. RICHARD LARSON
KEVIN G. BAKER
MEXICAN AMERICAN
LEGAL DEFENSE AND
EDUCATIONAL FUND
634 South Spring Street
11th Floor
Los Angeles, CA 90014
(213) 629-2512

Respectfully submitted,

KOTELES ALEXANDER

Counsel of Record

NIHAR R. MOHANTY

ALEXANDER, GEBHARDT,
APONTE & MARKS

Lee Plaza—Suite 805

8601 Georgia Avenue

Silver Spring, MD 20910

(301) 589-2222

FAX (301) 589-2523

Lic. RAMON XILOTL-RAMIREZ
Consul General

EMBASSY OF MEXICO

2827 16th Street, N.W.
Washington, D.C. 20009
(202) 736-1010

Attorneys for Amici Curiae

QUESTIONS PRESENTED FOR REVIEW

1. Can Georgia, within the confines of the Equal Pro-
tection Clause of the Fourteenth Amendment, discrim-
inate against nonresident aliens/dependents in the dis-
pensation of death benefits under its workers’ compensa-
tion statute.

2. Does the equal protection clause forbid Georgia from
paying Canadian citizens or residents/dependents sub-
stantially more death benefits than all other nonresident
aliens dependents under its Workers’ Compensation Act.

3. Does Georgia’s Workers’ Compensation Act, by
favoring Canadian residents or citizens with death benefits
that far exceed the death benefits received by residents or
citizens from other countries, create an impermissible and
unconstitutional intrusion by Georgia into the field of
foreign relations.

(i)

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED FOR REVIEW ............. “i i
py TP Be igs | yy! RC nnarnarnrennnee iv
INTEREST OF AMICUS CURIAE ..............00.0..00..0........ 2
REASONS FOR GRANTING THE WRIT .................... 1

I. THE DECISION BELOW PRESENTS AN IM-
PORTANT EQUAL PROTECTION QUESTION
UNDER THE FOURTEENTH AMEND-
MENT CONCERNING THE CONSTITU-
TIONALITY OF STATE DISCRIMINATION
AGAINST NONRESIDENT ALIENS ............... 4

Il. THE DECISION BELOW MISCONSTRUES
THE REACH OF THE FOURTEENTH
AMENDMENT’S EQUAL PROTECTION
CLAUSE AS IT RELATES TO DISTINC-
TIONS MADE WITHIN A CLASS OF NON-
RESIDENT ALIENS ON THE BASIS OF
ALIENAGE AND NATIONAL ORIGIN ........ ia 7

Ill. THE DECISION BELOW PRESENTS AN
IMPORTANT QUESTION CONCERNING
THE CONSTITUTIONALITY OF A STATE’S
WORKERS’ COMPENSATION ACT WHICH,

BY MAKING DISTINCTIONS BASED UPON
ALIENAGE AND NATIONAL ORIGIN, IN-
SERTS THAT STATE INTO THE SPHERE
OF FOREIGN AFFAIRS THAT IS EXCLU-
SIVE TO THE FEDERAL GOVERNMENT.... 15

CFPC IIS cectorcintnnsensenttatunsincnciniiainiesipaneiiiandanieipaniniéiditinn 20

(iii)

iv

TABLE OF AUTHORITIES

CASES Page
Alegria v. United States, 945 F.2d 1523 (11th Cir.
1991) ... 7,13

Alexander Ranch, Ine. v. Central Appraisal Dist.
of Erath County, 733 S.W.2d 303 (Tex. 1987),
cert, denied, 486 U.S. 1026, 100 L. Ed. 2d 236,

108 S. Ct. 2005 (1988) 8, 13,14
Alvarez Martinez v. Industrial Comm'n of Utah,

720 P.2d 416 (Utah 1986) . aA 5
Arizona v. Hicks, 480 U.S. 321, 94 L. Ed. 2d 347,

107 S. Ct. 1149 (1987) ... . ‘Satieies 18
Barbier v. Connolly, 113 U.S. 27, 28 L. Ed. 923,

5 S. Ct. 357 (1884) .... — wee i)
Barge-Wagener Constr. Co. v. Morales, 263 Ga.

190, 429 S.E.2d 671 (1993) passim
Cabell v. Chavez-Salido, 454 U.S. 432, 70 L. E. 2d

677, 102 S. Ct. 735 (1982) 9
Califano v. Goldfarb, 430 U.S. 199, 51 L. Ed. 2d

270, 97 S. Ct. 1021 (1977) 6

Chae Chan Ping v. United States (“Chinese Ex-
clusion Case’’), 130 U.S. 581, 32 L. d. 1068, 9

S. Ct. 623 (1888) 16
Clark v. Allen, 331 U.S. 508, 91 L. Ed. 1633, 67

S. Ct. 1431 (1947) 15, 17
De Ayala v. Florida Farm Bureau Casualty Ins.

Co., 543 So. 2d 204 (Fla. 1989) 5
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15

L. Ed. 691 (1856) 6
FS. Royster Guano Co. v. Virginia, 258 U.S. 412,

64 L. Ed. 989, 40 S. Ct. 560 (1920) 9
Frontiero v. Richardson, 411 U.S. 677, 36 L. Ed. 2d

583, 93 S. Ct. 1764 (1973) 9
Garzon v. United States, 605 F. Supp. 738 (S.D.

Fla. 1985) . passim
Graham v. Richardson, 403 U.S. 365, 29 L. Ed. 2d

534, 91S. Ct. 1848 (1971)... passim
Hampton v. Mow Sun Wong, 426 U.S. 88, 48 L. Ed.

2d 495, 96 S. Ct. 1895 (1976) ... . 9,10
Hillshorough Township v. Cromwell, 326 U.S. 620,

90 L. Ed. 358, 66 S. Ct. 445 (1946) 13

————————————

Vv

TABLE OF AUTHORITIES—Continued

Page
Hines v. Davidowitz, 312 U.S. 52, 85 L. Ed. 581,
FR SG 8 |
Hooper v. Bernalillo County Assessor, 472 U.S.
612, 86 L. Ed. 2d 487, 105 S. Ct. 2962 (1985)... 10

In Re Alien Children Educ. Litig., 501 F. Supp.

544 (S.D. Tex. 1980), aff’d sub nom. Plyler v.

Doe, 457 U.S. 202, 72 L. Ed. 2d 786, 102 S. Ct.

2382 (1982) eines 9
Jalifi v. Industrial Comm'n of Ariz., 132 Ariz. 233,

644 P.2d 1319, cert. dismissed, 459 U.S. 899, 74

L. Ed. 2d 161, 103 S. Ct. 200 (1982) 5
Johnson v. Eisenstrager, 339 U.S. 763, 94 L. Ed.

1255, 70 S. Ct. 936 (1950) . 12
Jurado v. Popejoy Constr. Co., 253 Kan. 116, 853

P.2d 669 (1993) 5
Korematsu v. United States, 323 U.S. 214, 89 L.

Ed. 194, 65 S. Ct. 193 (1944) 14
Lehndorff Geneva, Inc. v. Warren, 74 Wis. 2d 369,

246 N.W.2d 815 (1976) 8, 13, 14
Lindholm v, United States, 808 F. Supp. 7 (D.D.C.

1992) 7,13
Madera v. Insurance Accident Comm'n, 262 U.S.

199, 67 L. Ed. 1091, 43 S. Ct. 604 (1923) 6
Michiaan v. Lona, 468 U.S. 1082, 77 L. Ed. 2d

1201, 103 S. Ct. 3469 (1983) 2
Olmstead », United States, 277 U.S. 488, 72 L. Ed.

944, 48 S. Ct. 564 (1928) 19
Pedrazza v. Sid Fleming Contractor, Inc., 94 N.M.

59, 607 P.2d 597 (1980) 5, 6
Petia v. Industrial Comm'n, 140 Ariz. 510, 683 P.2d

309 (1984) 5
Plyler v. Doe, 457 U.S. 202, 72 L. Ed 2d 786, 102

S. Ct. 2382 (1982) passim
Reagents of l/niv. of Cal. v. Bakke, 488 U.S. 265, 57

L. Ed. 2d 750, 98 S. Ct. 2733 (1978) Af)
Rostker v. Goldhera, 453 U.S. 57, 69 L. Ed. 2d 478,

101 S. Ct. 2646 (1981) 9
Russian Volunteer Fleet ». United States. 282 U.S.

481, 75 L. Ed. 473, 51 S. Ct. 229 (1931) 7

Sailer v. Tonkin, 356 F. Supp. 72 (V.I. 1973) 14

vi

TABLE OF AUTHORITIES—Continued
Page
Shames v. Nebraska, 323 F. Supp. 1321 (D. Neb.
1971), aff'd, 408 U.S. 301, 33 L. Ed. 2d 321, 92
S. Ct. 2478 (1972) . . a Ant 17
Stebco, Inc. v. United States, 733 F. Supp. 1387
(S.D. Cal.), appeal dismissed, 939 F.2d 686 (9th

Cir. 1990) pine Ae ie ; 7,13
Sugarman ». Dougall, 413 U.S. 634, 837 L. Ed. 2d
853, 93 S. Ct. 2842 (1973) 10, 14
Takahashi v. Fish & Game Comm’n, 334 US. 410,
92 L. Ed. 1478, 68 S. Ct. 1188 (1948) 10, 11
Tayyari v. New Mexico State Univ., 495 F. Supp.
1365 (D.N.M. 1980) * 14
Town of Ball v. Rapides Parish Policy Jury, 746
F.2d 1049 (5th Cir. 1984) 10
Truar v. Raich, 239 U.S. 38, 60 L. Fd. 131, 36S. Ct.
7 (1915) 1]
United States v. Curtiss-Wright Export Corn., 299
U.S. 304, 81 L. Ed. 255, 57 S. Ct. 216 (1936) 19
United States v. Verdugo-Urauidez, 494 U.S, 259,
108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990) 12
Weinberger, v. Weisenfeld. 420 U.S. 636, 48 L. Ed.
2d 514, 95 S. Ct. 1225 (1975) 6
Wengler ». Drnagists Mut. Ins. Co.. 446 US. 142,
64 L. Ed. 2d 107, 100 S. Ct. 1540 (1980) 6
Yick Wo v. Hoplcins, 118 U.S. 356, 30 L. Ed. 220,
6S. Ct. 1064 (1886) 10, 11
Zobel v. Williams, 457 U.S. 55, 72 L. Ed. 2d 672,
102 S. Ct. 2309 (1982) 10
Zschernig v. Miller, 389 U.S. 429, 19 L. Fa. 2d
683, 88 S. Ct. 664 (1968) passim

CONSTITUTIONAL AND STATUTORY |
AUTHORITY

U.S. Const. amend. XTV, § 1 2
).S8. Const. art. I, § 2, el. 2 16
. Const. art. I, § 8, el. 11 16 |
. Const. art. T, § 8, el. 12 16
. Const. art. T, § 10, el. 1 2
. Const. art. T, § 10, el. 3 2,19
. Const. art. IT, § 2, cl. 1__. 16

EEE

ee |
DMinpninin

vii

TABLE OF AUTHORITIES—Continued

Page
Us. Const. art. I, § 16, ol. 8 ........................... 16
28 U.S.C. § 1257(a) (1988) .........0000000000 edad 2
Ga. Code Ann. § 34-9-261 (Michie 1993)... 4
Ga. Code Ann. § 34-9-265(b) (3) (Michie 1993)... 4
Ga. Code Ann. § 34-9-265(b) (5) (Michie 1993) | 2,4, 5,14
Ga. Code Ann. § 34-9-265(d) (Michie 1993)... 4
ee i I ce 10
Or. Rev. Stat. § 111.070 (1957) 17
MISCELLANEOUS
Aristotle, Ethica Nicomachea V.3.1131-1131b (W.
OE I 8
Aristotle, Metaphysicai 5.1055b-1056b (W. Ross
RN II I te 8
Arthur “pyey The Law of Workmen’s Compensa-
tion §§ 5.20, 5.30 (1952 & Supp. 1998) . ee
eneaar 7 Consular Affairs, U.S. Dept. of State,
No, 28, Visa Bulletin (1993) ..... 4

Cong. Globe, 39th Cong., 1st Sess. 342-43 (1866) 8,12

Fairman, Does the Fourteenth Amendment Incor-
porate the Bill of Rights?: ne Original Under-
standing ?, 2 Stan. L. Rev. 5 (1949) ... 12

Frank & Munro, The Original Understanding of
“Equal Protection of the Laws,” 50 Colum. L.

Rev. 131 (1950) _.. 12
Gerald L. Neuman, Whose Constitution ?, 100 Yale

L.J. 909 (1991) . Eee 7
HI. Kelsen, Aristotle's 8 ‘Doctrine of Justice in What

Is Justice? 110, 127-28 (1957) .. x
John Higham, Strangers in the Land 158-834

(1967) Oe ewe 11

Joseph Tussman & Jacobus tenBroek, The Equal
Protection of the Laws, 37 Cal. L. Rev. 341
RIPUPIIEE > cusetnonsediscsibicobdediadesnilesanaamieei te 2 amt i 8

K. Mare-Wogau, Aristotle’s Theory of Corr ective
Justice and Reciprocity in Philosophical Essays
i); eee na 8

Kevin P. Lewis, Dealing w ith South Africa: The
Constitutionality @f Stet» end Local Divestment
Legislation, 61 Tul. L. Kev. 469 (1987) ......... 17

viii
TABLE OF AUTHORITIES—Continued

Paul Enrlich, The Golden Door 129-135 (1979) _..
Paul Savoy, The Spiritual Nature of Equality:
Natural Principles of Constitutional Law, 28
pe | ee
Ricardo Romo, East Los Angeles: History of a
Barrio 91-110 (1968) ..........eeeccccccccccccecececceceecee
Roger Daniels, Coming to America 246, 307, 333,
SI A oe a
Sri Aurobbindo, The Human Cycle 197 (A. Ghose
OO
Symposium, Aliens, Due Process and “Community
Ties”: A Response to Martin, 44 U. Pitt. L. Rev.
eC chensnaieeinintt ee
Symposium, Due Process and Membership in Na-
tional Community: Political Asylum and Beyond,
44 U. Pitt. L. Rev. 165 (1988) ......0000 0.
The Federalist No. 42 (James Madison) _... Uh Rie
U.S. Printing Office, North American Free Trade
Agreement (CUGGB) oo. ncccccccccccceccececcocecceccccsceccee
W. Hardie, Aristotle’s Ethical Theory 189 (2d ed.
EE ee Nad RITE Ds, Se ire Aimee Lage ele

Page
11

IN THE
Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-342

JOSE ANTONIO MORALES, et al.,

” Petitioners,

BARGE-WAGENER CONSTRUCTION Co., et al.,
Respondents.

On Petition for Writ of Certiorari from the
Supreme Court of Georgia

BRIEF AMICUS CURIAE OF
UNITED STATES OF MEXICO, LEAGUE OF UNITED
LATIN AMERICAN CITIZENS AND
MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND IN SUPPORT OF THE
PETITION FOR WRIT OF CERTIORARI

BRIEF AMICUS CURIAE
IN SUPPORT OF PETITIONERS

OPINION BELOW

The opinion of the Supreme Court of Georgia on the
merits and reversing the trial court has been reported at
263 Ga. 190, 429 S.E.2d 671 (1993).

JURISDICTION

The judgment of the Supreme Court of Georgia was
enacted on May 24, 1993, and a petition for reconsidera-
tion was denied on June 18, 1993.

2

While the opinion of the court below makes reference
to the Georgia Constitution, it does not provide adequate
and independent state grounds for its decision. Michigan
v. Long, 463 U.S. 1032, 1040-41, 77 L. Ed. 2d 1201,
103 S. Ct. 3469 (1983). Therefore, the jurisdiction of
this Court is invoked by 28 U.S.C. § 1257(a).

STATUTORY AND CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV, § 1:

. nor shall any state .. . deny any person within
its jurisdiction the equal protection of the laws.”

U.S. Const. art. I, § 10, cl. 1:

“No State shall enter any Treaty, Alliance, or Con-
federation...”

U.S. Const. art. I, § 10, cl. 3:

“No State shall, without the consent of Congress,
. . enter into any Agreement or Compact with a
foreign Power...”

Ga. Code Ann. § 34-9-265(b)(5) (Michie 1993):

(b) If death results instantly from an accident aris-
ing out of and in the course of employment . .
the compensation under this chapter shall be as
follows:

(5) If the employee leaves dependents who are not
citizens or residents of the United States or the Do-
minion of Canada at the time of the accident. the
amount of compensation shall not in any case exceed
$1,000.00.

INTEREST OF AMICUS CURIAE

The United States of Mexico, is a federal republic,
located immediately South of the United States. The in-
terest of the United States of Mexico is based on the
fact that a continuous flow of people from one side of
our common border to the other has existed since be-
fore Columbus. In recent years, immigration North from
Mexico has increased substantially, drawn by guest worker

3

programs and other job opportunities. Many of these
workers leave their families in Mexico while they work in
the United States. Consequently, Mexican citizens consti-
tute a significant number of the individuals that are severely
impacted by the laws similar to the Georgia Workers’
Compensation Act.

The League of the United Latin American Citizens
(“LULAC”) is a national membership organization orig-
inally chartered in 1929. Its objectives are to protect and
defend the civil rights of all Americans, and to improve
the quality of life for all Americans. During the course
of its sixty-four (64) year history, LULAC has often
appeared as plaintiff or amicus in litigation before this
Court and in many other federal and state courts to vin-
dicate the rights of minorities, particularly Hispanics, who
are denied the full enjoyment of their constitutional rights.

Many LULAC members who reside and work in the
United States are not citizens of the United States or
Canada. Some of them have dependent families who do
not reside in the United States or Canada, and conse-
quently would be victims of discrimination from state
laws similar to Georgia Workers’ Compensation Act.

The Mexican American Legal Defense and Educational
Fund (““MALDEF”) is a national non-profit civil rights
organization established in 1967. Its principal objective
is to secure the civil rights of Latinos in the United States
through litigation and education. It has frequently repre-
sented plaintiffs in civil rights and equal protection mat-
ters and appeared as amicus curiae before this Court.

4

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW PRESENTS AN IMPOR-
TANT EQUAL PROTECTION QUESTION UNDER
THE FOURTEENTH AMENDMENT CONCERNING
THE CONSTITUTIONALITY OF STATE DISCRIM-
INATION AGAINST NONRESIDENT ALIENS

Jose Morales, age thirty-one, was a resident alien from
Mexico who was employed as a construction worker by
Barge-Wagener Construction Company in Georgia when
he fell twenty-two stories to his death from a building on
which he was working. He is survived by his wife and
two minor children, all of whom are citizens and residents
of Mexico. His wife and children were awarded the max-
imum lump sum of $1,000.00, pursuant to Ga. Code
Ann. § 34-9-265(b)(5) (Michie 1993), instead of being
eligible for death benefits at least ten times this amount.’
If, however, Ms. Moraies and her children had resided in
Canada instead of Mexico, she would have been entitled
to full benefits. Interestingly, had Ms. Morales and her
children been Canadian citizens residing in Mexico at
the same address, she would have been entitled to full
benefits. Ironically, if Ms. Morales had been living in
the United States illegally, she would have been entitled
to full benefits.”

The substantial nature of the issues raised by Ms.
Morales in this appeal is evident by the sharp disagree-
ment amongst the members of the Georgia Supreme
Court. The majority held that the death benefits provided
pursuant to Ga. Code Ann. § 34-9-265(b)(5) (Michie
1993) created a right solely in the dependents. More-
over, even though the Georgia statute was acknowledged
to be discriminatory because the benefits were substan-

1Ga. Code Ann. §§ 34-9-261, 34-9-265(b)(3) and (5), 34-9-
265(d) (Michie 1993) also allows United States citizens to receive
the $100,000.00 death benefit, but that is not the subject of com-
parison.

2 Dependents of legally immigrated residents from Mexico cur-
rently must wait a minimum of three years before becoming eligi-
ble for legal residency in the United States. Bureau of Consular
Affairs, U.S. Dept. of State, No. 28, Visa Bulletin (1993).

a a ee

5

tially less, the Court ruled that these nonresident aliens/
dependents are not protected by the Fourteenth Amend-
ment because they were not within the reach of the Consti-
tution. Two other justices, in a vigorous and persuasive
dissent, found that the majority’s “artful” opinion—that
the death benefits created a right solely in the dependents
—was without foundation. Barge-Wagener Constr. Co. v.
Morales, 263 Ga. 190, 429 S.E.2d 671, 674 (1993)
(Benham, J., dissenting) .*

The court below realized that, if the dependents were
able to raise the resident alien’s constitutional rights, it
would not only have to confront the Fourteenth Amend-
ment’s Equal Protection Clause, but also the statute would
be subject to a higher level of scrutiny. Therefore, by
shifting its constitutional analysis away from the deceased
resident alien, to his wife and children, all of whom were
nonresident aliens, the Georgia Supreme Court avoided
the equal protection analysis and the heavy burden it
carries in justifying discrimination between similarly sit-
uated persons.

The urgency of this issue has grown in importance since
the last time the Court was presented with a somewhat
similar issue in Jalifi v. Industrial Comm’n of Ariz., 132
Ariz. 233, 644 P.2d 1319, cert. dismissed, 459 U.S. 899,
74 L. Ed. 2d 161, 103 S. Ct. 200 (1982). After Jalifi, sev-
eral states have addressed the issue without reaching a con-
sensus and no predominate judicial viewpoint has emerged
or appears to be emerging. See Jurado v. Popejoy Constr.
Co., 253 Kan. 116, 853 P.2d 669 (1993) (applying equal
protection); De Ayala v. Florida Farm Bureau Casualty
Ins. Co., 543 So. 2d 204 (Fla. 1989) (applying equal pro-
tection): Alvarez Martinez v. Industrial Comm'n of Utah,
720 P.2d 416 (Utah 1986) (refusing to apply equal
protection); Pefia v. Industrial Comm'n, 140 Ariz. 510,
683 P.2d 309 (1984) (refusing to apply equal protec-
tion): Pedrazza v. Sid Fleming Centractor, Inc., 94 N.M.

3 The dissent concluded that the majority’s analogy to the Wrong-
ful Death statute was fatally flawed. Barge-Wagener Constr. Co.
v. Morales, 263 Ga. 190, 429 S.E.2d at 675 (1993).

6

59, 607 P.2d 597 (1980) (refusing to apply equal pro-
tection). Indeed, the Georgia Supreme Court has added
to the confusion by failing to provide the proper frame-
work for analyzing the equal protection clause. And,
there is no indication that this issue will be resolved in
the foreseeable future in the absence of a decision by this
Court. To nonresident aliens, particularly with the possi-
ble emergence of the North American Free Trade Agree-
ment (“NAFTA”), this question presents perhaps the most
important issue in the evolution of equal protection juris-
prudence. U.S. Printing Office, North American Free
Trade Agreement (1993).

Because the Georgia Supreme Court determined that
the death benefits accrued exclusively to the benefit of the
survivors, one is forced to focus on the rights of the non-
resident alien/dependent.*. When this Court was con-
fronted with the same type of dependent discrimination in
the context of gender issues, this Court’s analytical frame-
work was from the perspective of the employee, not the
dependent. See, e.g., Wengler v. Druggists Mut. Ins.
Co., 446 U.S. 142, 64 L. Ed. 2d 107, 100 S. Ct. 1540
(1980); Weinberger v. Weisenfeld, 420 U.S. 636, 43
L. Ed. 2d 514, 95 S. Ct. 1225 (1975). The Petitioners
more than adequately address this point in their brief.
Amici would like, however, to direct this Court’s attention
to the premise underlying the Georgia Supreme Court
decision—that nonresident aliens are “persons” without
constitutional rights that a state is “bound to respect”.
Dred Scott v Sanford, 60 U.S. (19 How.) 393, 407, 15
L. Ed. 691 (1856).

4 See Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 64
L. Ed. 2d 107, 100 S. Ct. 1540 (1980) (discussing gender discrimi-
nation in workers’ compensation statute); Califano v. Goldfarb,
430 U.S. 199, 51 L. Ed. 2d 270, 97 S. Ct. 1021 (1977) (discussing
gender discrimination in Federal Old-Age, Survivors, and Dis-
ability Insurance Program); Weinberger v. Weisenfeld, 420 U.S.
636, 43 L. Ed. 2d 514, 95 S. Ct. 1225 (1975) (examining gender
discrimination in Social Security Act); Madera v. Insurance
Accident Comm’n, 262 U.S. 499, 67 L. Ed. 1091, 43 S. Ct. 604
(1923) (exploring discrimination against employer by workers’
compensation statute).

7

Il. THE DECISION BELOW MISCONSTRUES THE
REACH OF THE FOURTEENTH AMENDMENT’S
EQUAL PROTECTION CLAUSE AS IT RELATES
TO DISTINCTIONS MADE WITHIN A CLASS OF
NONRESIDENT ALIENS ON THE BASIS OF
ALIENAGE AND NATIONAL ORIGIN

This case presents an issue of exceptional importance
that should be decided by this Court, since it has never
considered the full extent of how the Fourteenth Amend-
ment’s Equal Protection Clause applies to nonresident
aliens. Indeed, because this Court has not established the
parameters by which the equal protection clause applies to
nonresident aliens, the Georgia Supreme Court was able to
“artful[ly]” exploit this constitutional vacuum. At the
heart of the decision in the court below is that nonresi-
dent aliens, regardless of the circumstances, do not pos-
sess constitutionally protected rights.° This Court has,
however, held that nonresident aliens do, under certain
circumstances, have a constiiutionally protected status un-
der the United States Constitution that must be respected
by states. See, e.g., Russian Volunteer Fleet v. United
States, 282 U.S. 481, 75 L. Ed. 473, 51 S. Ct. 229
(1931). Some lower federal courts have said that non-
resident aliens, under certain circumstances, do possess con-
Stitutional protected rights under the Fourteenth Amend-
ment’s Equal Protection Clause. See, e.g., Alegria v.
United States, 945 F.2d 1523 (11th Cir. 1991); Lindholm
v. United States, 808 F. Supp. 7 (D.D.C. 1992); Stebco,
Inc. v. United States, 733 F. Supp. 1387 (S.D. Cal.),
appeal dismissed, 939 F.2d 686 (9th Cir. 1990); Garzon

5 The issue raised by the Georgia Supreme Court brings into
focus two questions that are basic to the tenets of constitutional
law: (i) the domain of American constitutionalism and (ii) the
concept of constitutional equality. See Gerald L. Neuman, Whose
Constitution ?, 100 Yale L.J. 909 (1991). Professor Neuman stresses
the realization that, as our country has developed, the preferred
application of the Constitution has evolved from a strict social
contract approach, applying constitutional protections only to United
States citizens, into an expanding municipal law approach which
extends the Constitution to those who are affected by the laws of
the United States. Jd.

8

v. United States, 605 F. Supp. 738 (S.D. Fla. 1985).
And, the Wisconsin and Texas Supreme Courts have
found that, under certain circumstances, nonresident
aliens do possess righis under the Fourteenth Amend-
ment’s Equal Protection Clause. See, e.g., Alexander
Ranch, Inc. v. Central Appraisal Dist. of Erath County,
733 S.W.2d 303 (Tex. 1987), cert. denied, 486 USS.
1026, 100 L. Ed. 2d 236, 108 S. Ct. 2005 (1988);
Lehndorff Geneva, Inc. v. Warren, 74 Wis. 2d 369, 246
N.W.2d 815 (1976). The Georgia Supreme Court’s de-
cision simply cannot be reconciled with the decisions
above.

When Georgia created a distinction between Canadians
and other nonresident aliens within its Workers’ Compen-
sation Act, it challenged one of the most “common
idea[s] of equality that [span] the political philosophy of
[both] East and West.” Paul Savoy, The Spiritual Nature
of Equality: Natural Principles of Constitutional Law, 28
How. L.J. 809, 836-37 (1985).° As Professors Tuss-
man & tenBroek stated:

The Constitution does not require that things dif-
ferent in fact be treated in law as though they were
the same. But it does require, in its concern for
equality, that those who are similarly situated be
treated similarly.

Joseph Tussman & Jacobs tenBroek, The Equal Pro-
tection of the Laws, 37 Cal. L. Rev. 341 (1949). This
is the concept of “equality” that was understood by the
drafters of the Fourteenth Amendment.’ And _ indeed,

® See also Aristotle, Ethica Nicomachea V.3.1131-1131b (W. Ross
trans. 1925) (“Equality in morals means this: things that are alike
should be treated alike, while things that are unlike should be
treated unlike in proportion to their unlikeness.”); Aristotle,
Metaphysicai 5.1055b-1056b (W. Ross trans. 2d ed. 1928); W.
Hardie, Aristotle’s Ethical Theory 189 (2d ed. 1980); H. Kelsen,
Aristotle’s Doctrine of Justice in What Is Justice? 110, 127-28
(1957): K. Mare-Wogau, Aristotle’s Theory of Corrective Justice
and Reciprocity in Philosophical Essays 21 (1967); Sri Aurob-
bindo, The Human Cycle 197 (A. Ghose trans. 1971).

7 Cong. Globe, 39th Cong., Ist Sess. 342-43 (1866).

9

members of this Court, whose views are otherwise as di-
verse as former Justice Brennan,” and Justices Black-
mum” and Rehnquist,’” agree that those who are sim-
ilarly situated should be treated similarly. Since 1885,
this Court has established this standard as a part of
equal protection jurisprudence. See Barbier v. Connolly,
113 U.S. 27, 28 L. Ed. 923, 5 S. Ct. 357 (1884); In re
Alien Children Educ. Litig., 501 F. Supp. 544, 556 (S.D.
Tex. 1980), aff'd sub nom. Plyler v. Doe, 457 U.S. 202,
72 L. Ed. 2d 786, 102 S. Ct. 2382 (1982). The ques-
tion presented by both the Georgia Supreme Court’s de-
cision and Georgia’s workers’ compensation classification
is simply whether a state government can legitimately dis-
criminate between similarly situated individuals on the
basis of alienage and national origin.”

This case does not compare United States citizens
to nonresident aliens, United States citizens to resident
aliens, nor resident aliens to nonresident aliens in the
United States. Moreover, Amici do not attempt to con-
vince the Court that nonresident aliens have the full com-
plement of constitutional rights possessed by either resi-
dent aliens or United States citizens.”

8 Plyler v. Doe, 457 U.S. 202, 216, 72 L. Ed. 2d 786, 102 S. Ct.
2382 (1982) (per Brennan, J.) (quoting F.S. Royster Guano Co.
v. Virginia, 253 U.S. 412, 64 L. Ed. 989, 40 S. Ct. 560 (1920));
Frontiero v. Richardson, 411 U.S. 677, 683, 36 L. Ed. 2d 583, 93
S. Ct. 1764 (1973) (per Brennan, J.).

® Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 57 L. Ed. 2d
750, 98 S. Ct. 2733 (1978) (concurring and dissenting opinion).

10 Rostker v. Goldberg, 453 U.S. 57, 64, 69 L. Ed. 2d 478, 101
S. Ct. 2646 (1981) (per Rehnquist, J.).

11 The Georgia statute discriminates both on the basis of alienage
and national origin. The statute draws its initial distinction be-
tween nonresident aliens on one hand and resident aliens and
United States citizens on the other. The statute then further distin-
guishes on the grounds of national origin to favor Canadian non-
resident aliens over those of every other nationality.

12 The equal protection questions presented to the Court to date
deal primarily with the issue of resident aliens. Cabell v. Chavez-
Salido, 454 U.S. 432, 70 L. Ed. 2d 677, 102 S. Ct. 735 (1982) ; Hamp-

———————————

10

Here Georgia, by granting benefits to nonresident aliens,
discriminates against a sub-class of these aliens on the
basis of national origin by treating those residing in Can-
ada and Canadian citizens more favorably than all others.
When a State grants benefits, however, it cannot constitu-
tionally distribute those benefits in an impermissible dis-
criminatory manner.’ Indeed, here the Georgia Supreme
Court admits that the workers compensation statute is
discriminatory.

Georgia’s statute works an invidious distinction, the
nature and intent of which is best illustrated by the his-
torical context in which the law was enacted. Georgia's
Workers’ Compensation Act, including its alien-dependent
exclusion provision, was adopted in 1920 during the
movement for the institution of compulsory industrial ac-
cident insurance that swept the country from 1909 to
1920. 1920 Ga. Laws 814: Arthur Larson, The Law of
Workmen's Compensation §§ 5.20, 5.30 (1952 & Supp.
1993). Indeed, one of the most prominent features of
our national lore is the great influx of immigrants be-
tween the 1880s and the early 1920s. Less celebrated is
the nativist, anti-immigrant backlash that accompanied
this phenomenon and eventually succeeded in radically
altering our national immigration policy.”

ton v. Mow Sun Wong, 426 U.S. 88, 48 L. Ed. 2d 495, 96 S. Ct. 1895
(1976): Sugarman v. Dougall, 413 U.S. 634, 87 L. Ed. 2d 853,
93 S. Ct. 2842 (1973): Graham v. Richardson, 403 U.S. 365, 29
L. Ed. 2d 534, 91 S. Ct. 1848 (1971); Takahashi v. Fish & Game
Comm'n, 334 U.S. 410, 92 L. Ed. 1478, 68 S. Ct. 1188 (1948);
Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S. Ct. 1064
(1886).

13 Hooper v. Bemalillo County Assessor, 472 U.S. 612, 86 L. Ed. 2d
487, 105 S. Ct. 2862 (1985) (exploring tax exemption for Vietnam
veterans residing in the state before a certain date); Zobel v.
Williams, 457 U.S. 55, 72 L. Ed. 2d 672, 102 S. Ct. 2809 (1982)
(discussing Alaskan residents’ distribution plan); Town of Ball v.
Rapides Parish Police Jury, 746 F.2d 1049 (5th Cir. 1984) (review-
ing state’s expenditures of tax dollars).

14 While the Chinese Exclusion Act of 1882 was the first signifi-
cant inhibition of free immigration to the United States, the cam-

1]

This nativist movement was animated by three funda-
mental principles: the racial superiority of Anglo-Saxons;
bias against Roman Catholics; and hostility to foreign
“radicals.” John Higham, Strangers in the Land 158-334
(1967). Each of these prejudices disfavored immigrants
from largely Catholic Mexico, especially when it is ob-
served that this period also witnessed the Mexican Revolu-
tion from 1909 to 1920, the consequent increase in im-
migration from Mexico, and Mexico's association in the
mind of the United States with Germany and the Central
Powers during World War I. Roger Daniels, Coming to
America 307, 333 (1990); Paul Enrlich, The Golden
Door 129-135 (1979); Ricardo Romo, East Los Angeles:
History of a Barrio 91-110 (1983). This anti-immigrant
movement, while national in its reach, found particular
fervor in the Southern and Western states, and it is per-
haps not surprising in view of the statute at issue here,
that the Ku Klux Klan was reborn in Georgia in 1915
and flourished in 1920 with Klan leaders pointing to for-
eign immigrants as one of the chief evils to be opposed.
Higham, Strangers at 286-99.

When viewed in the context in which it was adopted, the
Statute is a vestige of the nativist sentiment infecting public
policy at the time of its adoption. This Court has re-
peatedly confronted and consistently invalidated such state
laws, and should not tolerate Georgia’s Workers’ Com-
pensation law at all. E.g., Yick Wo v. Hopkins, 118 US.
356, 30 L. Ed. 220, 6 S. Ct. 1064 (1886): Truax vy.
Raich, 239 U.S. 33, 60 L. Ed. 131, 36 S. Ct. 7 (1915):
Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 92
L. Ed. 1478, 68 S. Ct. 1138 (1948); Graham vy. Rich-
ardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848
(1971).

In the opinion of the Georgia Supreme Court, nonresi-
dent aliens do not possess Fourteenth Amendment rights

paign to restrict immigration reached its zenith and was perhaps
the principal political crusade during the first two decades of the
1900s. See Roger Daniels, Coming to America 246, 365-384 (1990) ;
John Higham, Strangers in the Land 158-384 (1967).

12

because they are not “within its jurisdiction,” and cannot
be considered a part of the community of individuals that
are entitled to constitutional protection. Barge-Wagener
Const. Co. v. Morales, 263 Ga. 190, 429 §.E.2d at 673.
This conclusion, which is devoid of any analytical frame-
work, is based upon a fundamental misconception as to
the proper criteria for determining the application of the
equal protection clause particularly to nonresident aliens.
But see United States v. Verdugo-Urquidez, 494 U.S. 259,
108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990); Johnson
v. Eisentrager, 339 U.S. 763, 94 L. Ed. 1255, 70 S. Ct.
936 (1950) (analyzing application of Constitution to
nonresident aliens when acts occurred outside of United
States).

The Georgia Supreme Court’s holding that nonresident
aliens do not possess Fourteenth Amendment rights limits
the phrase “within its jurisdiction” to include only those
nonresident aliens that are within Georgia’s physical terri-
tory.” The court below failed to consider this Court's in-
terpretation in Plyler v. Doe, 457 U.S. 202, 214, 72 L.
Ed. 786, 102 S. Ct. 2382 (1982), that the equal protec-
tion clause applies “to all within a State’s boundaries, and
to all upon whom the State would impose the obligations
of its laws.” ** By making workers’ compensation the ex-

15 The legislative history of the equal protection clause provides
almost no assistance determining the extent and meaning of this
phrase. The drafting committee, as a result of deliberating in
secret, never cited the purposes of the statement. The floor debates
concentrated on the terms for readmission of the southern states
and spent little time discussing the equal protection clause. For the
most part the discussions focused almost entirely on race. See, e..,
Cong. Globe, 39th Cong., Ist Sess. 342-43 (1866) (remarks of Sen.
Howard) ; see also Frank & Munro, The Original l/nderstanding of
“Equal Protection of the Laws,” 50 Colum. L. Rev. 131 (1950);
Fairman, Does the Fourteenth Amendment Incorporate the Bill of
Rights?: The Original Understanding?, 2 Stan. L. Rev. 5 (1949).

16 An additional analysis applicable to this case is to look at the
connections between the nonresident alien and the United States
or a smaller community therein. See Symposium, Due Process and
Membership in National Community: Political Asylum and Beyond,
44 U. Pitt. L. Rev. 165 (1983) (recognizing that equal protection

a ee |

13

clusive remedy in a work-related death and limiting any
recovery to $1,000.00, Georgia has under the color of
authority punitively affected the rights of al) nonresident
aliens except for Canadian citizens or residents, thereby
bringing them within Georgia’s jurisdiction.

The Georgia Supreme Court's minimalist interpretation
also flies in the face of evolving equal protection juris-
prudence. Alegria v. United States, 945 F.2d 1523
(lith Cir. 1991); Lindholm yv. United States, 808 F.
Supp. 7 (D.D.C. 1992); Stebco, Inc. v. United States,
733 F. Supp. 1387 (S.D. Cal.), appeal dismissed, 939
F.2d 686 (9th Cir. 1990); Garzon v. United States, 605
F, Supp. 738 (S.D. Fla. 1985).'" As earlier stated, even
the state Supreme Court in both Wisconsin and Texas
have read the United States constitution to extend equal
protection to nonresident aliens. See, e.g., Alexander
Ranch, Inc. v. Central Appraisal Dist. of Erath County,
733 S.W.2d 303 (Tex. 1987), cert. denied, 486 U.S.
1026, 100 L. Ed. 2d 236, 108 S. Ct. 2005 (1988); Lehn-
dorff Geneva, Inc. v. Warren, 74 Wis. 2d 369, 246 N.W.2d
815 (1976). Indeed, this Court on one occasion found
it appropriate to resolve the dispute over discriminatory
taxation statutes in favor of a nonresident alien, although
the Court did not discuss the nonresident status of the
taxpayer. Hillsborough Township v. Cromwell, 326 U.S.
620, 90 L. Ed. 358, 66 S. Ct. 445 (1946).

In addition to discriminating on the grounds of alien-
age, the Georgia statute created a distinction based upon

rights are often determined by community ties experienced between
alien and United States); Symposium, Aliens, Due Process and
“Community Ties”: A Response to Martin, 44 U. Pitt. L. Rev. 237
(1983) (exploring and challenging Martin’s ideas).

17In each of these cases, the lower federal court has recognized
that the denial of an appropriate forum to challenge a tax jeopardy
assessment would constitute an infringement of the “due process”
and “equal protection rights” of nonresident aliens. Alegria v.
United States, 945 F.2d at 1527-28 (11th Cir. 1991); Lindholm v.
United States, 808 F. Supp. at 9 (D.D.C. 1992); Stebeo, Inc. v.
United States, 733 F. Supp. at 1390 (S.D. Cal. 1990) ; Garzon v,
United States, 605 F. Supp. at 745 (S.D. Fla. 1985).

14

national origin." Ga. Code Ann. § 34-9-265(b)(5)
(Michie 1993). National origin as well as alienage is a
suspect classification and therefore enjoy the “heightened
judicial solicitude” of a suspect class. Graham v. Rich-
ardson, 403 U.S. 365, 29 L. Ed. 2d 534, 91 S. Ct. 1848
(1971); Tayyari v. New Mexico State Univ., 495 F. Supp.
1365 (D.N.M. 1980). Justice Rehnquist recognized in a
dissenting opinion that a “state statute that classifies aliens
on the basis of country of origin is much more likely to
classify on the basis of race, and thus conflict with the
core purpose of the Equal Protection Clause, than a stat-
ute that . .. merely distinguishes between alienage as such
and citizenship as such.” Sugarman vy. Dougall, 413 U.S.
634, 655, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973) (dis-
senting opinion). This Court has firmly established that
alienage and national crigin are suspect classification.

In Plyler v. Doe, 457 U.S. 202, 72 L. Ed. 2d 786, 102
S. Ct. 2382 (1982), this Court further held that illegal
alien children do not constitute a suspect class nor war-
rant strict scrutiny. In considering the applicability of
these decisions to nonresident aliens, two points emerge.
The first is that these cases deal only with resident aliens,
and second, the question of whether nonresident aliens
constitute a suspect class has not been decided by this
Court. In Lehndorff Geneva, Inc. v. Warren, 74 Wis. 2d
369, 246 N.W.2d 815 (1976), and Alexander Ranch
Inc. v. Central Appraisal Dist. of Erath County, 733
S.W.2d 303 (Tex. 1987), cert. denied, 486 U.S. 1026,
100 L. Ed. 2d 236, 108 S. Ct 2005 (1988), both state
Supreme Courts applied the rational basis standard to
nonresident aliens. In Sailer v. Tonkin, 356 F. Supp. 72
(V.I. 1973), however, the federal court did use strict

18 Discrimination on the basis of national origin was scrutinized -
by the Court in Korematsu v. United States, 323 U.S. 214, 89 L. Ed.
194, 65 S. Ct. 193 (1944), where the Court examined statutory
distinctions based upon a person’s ancestry and descent. As an
example of national origin, in Korematsu, the petitioner was an
American citizen of Japanese descent.

15

Scrutiny to invalidate a nonresident alien classification.’
Whatever level of scrutiny this Court decides to apply, the
Georgia Workers’ Compensation Act cannot withstand
that judicial scrutiny.

Ill. THE DECISION BELOW PRESENTS AN IMPOR-
TANT QUESTION CONCERNING THE CONSTITU-
TIONALITY OF A STATE’S WORKERS’ COMPEN-
SATION ACT WHICH, BY MAKING DISTINCTIONS
BASED UPON ALIENAGE AND NATIONAL ORI-
GIN, INSERTS THAT STATE INTO THE SPHERE
OF FOREIGN AFFAIRS THAT IS EXCLUSIVE TO
THE FEDERAL GOVERNMENT

This Court, for over a considerable number of years, has
not confronted the exclusivity of the federal government’s
power in the field of foreign affairs. See Zschernig v.
Miller, 389 U.S. 429, 19 L. Ed. 2d 683, 88 S. Ct. 664
(1968); Clark v. Allen, 331 U.S. 503. 91 L. Ed. 1633,
67 S. Ct. 1431 (1947). In Georgia, this void has per-
mitted a statute that has a persistent and subtle effect on
foreign relations. Out of all the countries of the world.
Georgia has decided that only Canadian citizens or other
residents of Canada are deserving of equal treatment with
United States citizens or residents. Whether Ms. Morales
and her children lived in Great Britain, Japan, Germany,
or in any of the Latin American countries, it would make
no difference. On the other hand, had Ms. Morales re-
sided in Canada, she would receive the same benefits as a
United States citizen would under the statute. Allowing
the Georgia Workers’ Compensation Act to stand would
establish a dangerous precedent in that nothing would pre-
vent each state in the Union from selecting a different
nation to receive such special treatment.”

1? The federal district court did not, however, analyze the dis-
tinctions between resident and nonresident aliens. Essentially the
court held that the portion of the Virgin Islands Criminal Com-
pensation Act which denied compensation to a nonresident alien
visitor to the territory did not meet the compelling state interest
necessary for a suspect class.

*° For example, if the statute is allowed to stand, perhaps states
in the Southwest will prefer to extend this special status to Mexico.

~ Perhaps states in the Northwest will prefer to confer this special

16

The United States Constitution reserves the field of
foreign affairs exclusively for the federal government.
Hines v. Davidowitz, 312 U.S. 52, 63, 85 L. Ed. 581, 61
S. Ct. 399 (1941) (concluding that “our system of govern-
ment is such that the interest of the cities, counties, states,
no less than-the interests of the people of the whole na-
tion. imperatively requires that the federal power in the
field affecting foreign relations be left entirely free from
local interference”); see also Chae Chan Ping v. United
States (“Chinese Exclusion Case”), 130 U.S. 581, 606,
32 L. Ed. 1068, 9 S. Ct. 623 (1888). This principle ema-
nates from several provisions of the United States Con-
stitution. Illustrative of this principle is the President’s and
the Senate’s powers to make treaties; * the President’s and
the Congress’ powers to make war; and the prohibition
on states to enter into a compact with foreign govern-
ments.~’ James Madison eloquently summarized with pen-
etrating insight this concept when he said in The Federalist
No. 42 (James Madison) that, “if we are to be one nation
in any respect, it clearly ought to be in respect to other
nations.” In sum, individual states may not intrude into
the exclusive federal sphere of foreign affairs.

This Court in Zschernig v. Miller, 389 U.S. 429, 19
L. Ed. 2d 683, 88 S. Ct. 664 (1968). struck down an
Oregon statute that nrohibited nonresident aliens from
receiving property through the Oregon probate courts un-
less certain conditions were satisfied. 389 U.S. at 430-
31. This Court found that such a statute had “led into

benefit on Canada. Perhaps cities containing a large Jewish popu-
lation will prefer Israel in some fashion. It is precisely this type
of state preference for a particular foreign nation that the United
States Constitution prohibits.

21U.S. Const. art. I, § 2, cl. 2.

22U.S. Const. art. II, § 2, cl. 1; U.S. Const. I, §8, cl. 11; US.
Const. art. I, § 8, cl. 12.

23 U.S. Const. art. I, § 10, cl. 3.

24 First, Oregon required that the country in which the bene-
ficiary resided maintain a reciprocal right for United States citizens
to receive property. Second, Oregon insisted that the foreign

sienna ieee

17

minute inquiries concerning the actual administration of
foreign law, into the credibility of foreign diplomatic
statements, and into speculation” on whether nonresident
aliens actually received the benefits of the property or
money. 389 U.S. at 435. Moreover, this Court observed
that such a statute, which allows for such inquiry, could
lead to inflammatory statements by state court judges re-
garding the Soviet block countries and therefore could
affect foreign affairs. 389 U.S. at 438, n.8. Consequently,
this Court concluded that the Oregon statute unconstitu-
tionally encroached into foreign affairs because it made
“unavoidable judicial criticism of nations established on a
more authoritarian basis than our own” and “affect[ed]
international relations in a persistent and subtle way.” 389
U.S. at 440.

Some courts have interpreted Zschernig as only stating
that “judicial criticism of foreign governments is, then,
constitutionally impermissible.” Shames v. Nebraska, 323
F. Supp. 1321, 1322 (D. Neb. 1971), aff'd 408 U.S. 301,
33 L. Ed. 2d 321, 92 S. Ct. 2478 (1972). See Hines vy.
Davidowitz, 312 U.S. 52, 85 L. Ed. 2d 581. 61 S. 2.
399 (1941). The proper distinction, however, is between
federal and the state legislature. See Kevin P. Lewis,
Dealing with South Africa: The C onstitutionality of State
and Local Divestment Legislation, 61 Tul. L. Rev. 469
(1987).

The Georgia statute is more like the Statute in
Zschernig, and much different from the Statute that was
the subject of this Court's inquiry in Clark v. Allen, 331
U.S. 503, 91 L. Ed. 1633. 67 S. Ct. 1431 (1947). In
Clark, this Court sustained the California statute because
its effect on other countries was incidental or indirect.
What offended this Court in Zschernig, however, was that

country allow United States citizens to receive funds from estates
in that country. Third, a foreign resident had to establish that he
would receive the benefit of money or property from the estate of or
persons dying in Oregon “without confiscation, in whole or in part,”
by his government. /d. at 439, n.1, citing Or. Rev. Stat. § 111.070
(1957).

18

the structure of the statute facilitated, in that instance
through the judiciary, the state’s insertion into the exclu-
sive province of the federal government to conduct foreign
affairs. The Georgia statute is strikingly similar but with
a slight twist. The statute is not structured to allow the
judiciary to make an assessment of foreign policy before
passing on the quality of rights to be extended to the
nonresident alien. Instead, by discriminating on the basis
of national origin and alienage. Georgia has codified its
criticism of all other nations and perforce has injected
itself into the field of foreign affairs. As a consequence,
the Georgia courts are forced to relegate all nationalities
except for Canadians to second class status. This directly
offends this Court’s holding in Zschernig.

It is not the judicial nature of the criticism, but
that a statute, such as the Georgia Workers’ Compen-
sation Act, facilitates criticism. Allowing a state to select
the citizens or residents of a nation for preferred status
no doubt is a form of criticism, expressed or not. of those
country’s citizens or residents who are not favored for
preferred status. The exercise of such powers cannot
only have a corrosive effect on the separation of powers
between the state and federal government in the area of
foreign affairs, but also in the United States’ relationships
with other foreign governments. It is difficult to imagine
that the Framers intended to preclude only state judicial
criticism of foreign governments by reserving the policy
of foreign affairs to the federal government. See The
Federalist No. 42 (James Madison). Foreign affairs is
exclusively a domain of the federal government.

Although the Georgia statute has been in effect for
over seventy years and, as a practical matter, may have
had little influence on foreign policy, this Court has held
that, when dealing with constitutional questions, what may
happen must be considered. See, e.g., Arizona v. Hicks,
480 U.S. 321, 325, 94 L. Ed. 2d 347, 107 S. Ct. 1149
(1987). Furthermore, we must remember that “[e]xperi-
ence has shown that international controversies of the
gravest moment, sometimes even leading to war, may

19

arise from real or imagined wrongs to another subject’s
inflicted, or permitted by a government.” Hines v. Davido-
witz, 312 U.S. 52, 64, 85 L. Ed. 581, 61 S. Ct. 399
(1941). In the field of foreign affairs what is insignificant
today may be significant tomorrow.

Last, the Georgia Workers’ Compensation Act is at
the very least a compact with a foreign government, and,
therefore, violates the United States Constitution. One
cannot be constrained to the literal interpretation of “com-
pact.” See, e.g., Olmstead v. United States, 227 U.S. 438.
72 L. Ed. 944, 48 S. Ct. 564 (1928) (Brandeis, J., dis-
senting) (holding that “a principle to be vital must be
capable of wider application than the mischief which gave
it birth . . . in the application of Constitution, therefore,
our application cannot be only what has been but of what
may be”).

This Court has also never had the opportunity to de-
termine whether a state by virtue of its statutes enters
into a compact, as defined under Article I, Section 10,
Clause 3 of the United States Constitution, with a foreign
nation. As noted above, the Georgia statute benefits
the citizens of one country. Although Canada may not
have bargained for this advantage, the purpose of the
Compact Clause is to prevent states from differentiating
among foreign governments in this manner. Georgia has,
by virtue of its statute, decided to elevate Canada to a
special status among nations.

Fundamental to the concept of federalism is the separa-
tion of powers between the state and federal governm«nt.
Nowhere is this principle more basic to a national govern-
nent than in the field of foreign affairs. As Justice Suth-
erland stated in United States v. Curtiss-Wright Export
Corp., 299 U.S. 304, 316, 81 L. Ed. 255, 57 S. Ct. 216
(1936), “[e]ven before the Declaration [of Independence],
the colonies were united in foreign affairs.” Even though
Georgia’s Workers’ Compensation Act is subtle, it none-
theless is an intrusion into the federal government’s ex-
clusive domain over foreign affairs. Such a statute, which
arbitrarily selects a nation for favorable treatment to the

20

exclusion of all others, without at a minimum consulting
with the federal government is perilous. Unless reversed,
the Georgia Supreme Court decision iegitimizes an unlaw-
ful intrusion of the state into the ability of this nation to
speak with one voice in foreign affairs.

CONCLUSION

For the foregoing reasons, Amici pray that Petitioners
Writ of Certiorari to review the Judgment and Opinion
of the Supreme Court of Georgia in this case be granted.

Respectfully submitted,

EDUARDO PENA KOTELES ALEXANDER
National Legal Advisor Counsel of Record
LEAGUE OF UNITED LATIN NIHAR R. MOHANTY
AMERICAN CITIZENS ALEXANDER, GEBHARDT,
1314 19th Street, N.W. APONTE & MARKS
Washington, D.C. 20036 Lee Plaza—Suite 805
(202) 835-1555 8601 Georgia Avenue
ANTONIA HERNANDEZ Silver Spring, MD 20910
E. RICHARD LARSON (301) 589-2222
KEVIN G. BAKER FAX (301) 589-2523
MEXICAN AMERICAN Lic. RAMON XILOTL-RAMIREZ
LEGAL DEFENSE AND Consul General
EDUCATIONAL FUND EMBASSY OF MEXICO
634 South Spring Street 2827 16th Street, N.W.
11th Floor Washington, D.C. 20009
Los Angeles, CA 90014 (202) 736-1010

(213) 629-2512
Attorneys for Amici Curiae

October 18, 1993

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0420%3A4. Public record. Not legal advice.