Mr. Justice Stevens' opinion for the majority in Mow Sun Wong “ assume(d), without deciding,”
426 U.S. at 114, 96 S.Ct. 1895, that the President may lawfully exclude aliens from the civil service. Justices Brennan and Marshall, whose approval of that opinion was necessary to make it an opinion of the Court, joined in it with the express understanding that the constitutional question was reserved.
Id. at 117, 96 S.Ct. 1895. Nevertheless, there seem to us to be strong indications that the Court would sustain the President's power. The four dissenting justices, who thought the Civil Service Regulation valid, would, A fortiori, hold the executive order valid. A careful reading of the majority opinion convinces us that, notwithstanding the express reservations of two of the justices, at least some members of the majority would reach a different conclusion with respect to the validity of the executive order than they did with respect to the validity of the regulation. We note the recognition “that overriding national interests may provide a justification for a citizenship requirement in the federal service even though an identical requirement may not be enforced by a State,”
Id. at 119, 96 S.Ct. at 1913, and the Court's view that the argument in favor of the Commission's regulation “draws support from both the federal and the political character of the power over immigration and naturalization.” Id. The latter proposition is underscored by the Court's unanimous decision the same day in
Mathews v. Diaz, 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976), which sustained the constitutionality of a federal statute that limited Medicare eligibility to citizens and to aliens who had filed an application for permanent residence and had continuously resided in the United States for at least five years. Compare
Graham v. Richardson, supra, 403 U.S. at 376, 91 S.Ct. 1848, which invalidated a state's conditioning an alien's eligibility to receive welfare benefits on residence in United States for fifteen years. The Court in Mow Sun Wong also “assume(d) with the petitioners that if the Congress or the President had expressly imposed the citizenship requirement, it would be justified by the national interest in providing an incentive for aliens to become naturalized, or possibly even as providing the President with an expendable token for treaty negotiating purposes . . . .”
426 U.S. at 105, 96 S.Ct. at 1906, See also,
id. at 116, 96 S.Ct. 1895. Also the Court remarked that “if the rule were expressly mandated by the Congress or the President, we might presume that any interest which might rationally be served by the rule did in fact give rise to its adoption,”
Id. at 103, 96 S.Ct. at 1905, a presumption that would make it unnecessary for the defenders of the order to demonstrate what in fact gave rise to the adoption of the ban. Finally, the concluding paragraph of the opinion contains the following sentence: