Warren E. Burger: We'll hear arguments next in 73-1046, Weinberger against Diaz. Mrs. Shapiro you may proceed whenever you're ready.
Harriet S. Shapiro: Mr. Chief Justice, may it please the Court? This case is here on direct appeal by the Government from a decision of a three-judge district court in Florida. Like the previous case, it involves the challenge to the Federal Government's power to classify on the basis of alienage. The appellees are three aliens who wish to enroll in a subsidized federal medical insurance program for the elderly. This program is part of the overall Social Security Insurance System for people over 65. That system consists of three parts. First, there is the basic retirement insurance which is old age and survivors insurance. Eligibility for that insurance is based on age and work in covered employment. Citizenship or alienage has almost nothing to do with it and almost all employment in this country is covered. Second, there's hospital -- hospitalization insurance which is referred to us Medicare Part A and eligibility is based primarily on entitlement to the basic retirement insurance. The third category is the one involved in this litigation and that is Medicare Part B, supplemental medical insurance. Part B is a voluntary program. Those who enroll who currently pay $6.70 a month which the Government matches. The fund created by these contributions pays 80% of covered medical expenses and they're mainly doctor's fees and medication. Appellees are all over 65. They want to enroll in Medicare sub Part B but they were refused because Part B insurance is available only to persons who are eligible for Part A insurance to citizens or to aliens admitted for permanent residence who have actually been residents for five years. All three named appellees entered this country in 1971. So they don't need the five-year residence requirement. In addition, two of the appellees were admitted under the special Cuban refugee program and not for permanent residents. So on that ground also, they're ineligible for Medicare Part B. The Cuban program does not -- does permit a retroactive adjustment of status. So that by the time these two appellees have been here for five years, they probably will be eligible for Medicare Part B since their status will have been adjusted to that of permanent resident aliens. This is a class action and the court below defined the class as all immigrants denied enrollment in sub Part B because they're not lawfully admitted for permanent residents and have not met the five-year residency requirement. It also established a Sub Class represented by single appellee, Espinosa of those denied benefits solely because they could not meet the durational residence requirement. The Court held that the durational residence requirement denied appellees equal protection because it did -- it was not rationally related to any valid congressional purpose. It also held that the durational residence requirement was not separable from the requirement that the alien be lawfully admitted for permanent residence. And therefore, it struck all the aliage provisions from the Medicare Sub Part B eligibility provisions. We've discussed the separability issue in our brief and I don't propose to discuss that further this afternoon. It is our contention here as it was in the preceding case that equal protection analysis is simply inappropriate when considering federal statutes dealing with alienage in view of the basis and extent of Congress' broad powers over immigration. Solicitor general presented that view this morning and I don't propose to go into that again. I do want to point out that the Medicare eligibility provision at issue here is closely related to immigration policy. As a matter of fact, the court below rather surprisingly indicated that it had doubts about the constitutionality of the admitted for permanent residence requirement for part of the statute precisely because it was so closely related to the policy expressed in the Immigration Act. The Immigration Act provides that one of the qualifications for admission as an immigrant is that the applicant not be likely to become a public charge. Now the practical effect of that requirement particularly for people over 60, are the only ones that are affected by this Medicare provision is that they must either be economically independent or have someone in this country who is willing to assume responsibility for their support. The Medicare limitation simply defines the extent of the support obligation. The effect of the immigration statute and the Medicare statute taken together is the same as if Congress had explicitly provided in the Immigration Act that elderly immigrants must undertake to provide for their own medical needs for five years after they enter either by private insurance or by having the financial capability of doing it independently of insurance. Congress could certainly have done -- made that provision directly in the Immigration Act. We submit that Congress has an equal right to do it indirectly through the Medicare Act. It's the essence of congressional power over immigration to decide which groups it will encourage to immigrate, and which discourage and also to decide how much encouragement it will offer. An elderly person considering immigration will normally consider the cost of living in this country. Part of that cost is the cost medical care. If subsidized government insurance is available, the cost will be lower than if it is not and if it's available after five years, the cost is less than if it's not available at all. Immigration is thus encouraged by making the insurance available, but it's not encouraged as much as it would be if the insurance was available immediately on entry. Congressional judgments concerning immigration policy are entitled to great judicial deference. This Medicare eligibility provision is an expression of congressional immigration policy and as such it's entitled to great judicial deference. For that reason, even if this judgment is subject to review on equal protection grounds, the Court need do no more than assure itself that there's a rational justification for the restrictions on alien eligibility and there is such a justification in this case. The Part B Medicare program is part of the overall Social Security Insurance Program. That program is not basically a welfare program in which payments are based on current needs. There's no means test for eligibility. Instead, the insurance is available to those to whom Congress has determined that the country owes an obligation. This Court has in fact recognized that that sense of obligation is the basis of the original Social Security Program which is of course the root stock of the whole Federal Social Insurance Program particularly for the elderly. If I may quote from Flemming v. Nestor, the program is based on a legislative judgment that those who in their productive years were functioning members of the economy may just call on that economy in their later years for protection from the rigors of the poor house. In setting up the Part B eligibility provisions, Congress went somewhat further. It extended the benefits to all citizens and to aliens with a substantial relation to this country but the theory remained the same. Congress simply recognized that resident aliens like citizens pay taxes are subject to military service and contribute in myriad other ways to our national community. Citizens, who in the overwhelming majority of cases make these contributions throughout their lives, may not enroll in Sub Part B until they're 65. An alien, who makes his myriad contributions in his country of origin during his working life may retire and come here and after only five years of contributing to this community, he's eligible to enroll in Medicare Sub Part B on the same basis as a citizen. That's not certainly an unreasonable discrimination against the alien. In fact, the only person is more favorably treated would be a US citizen who had never lived in this country and then returned in his old age and was immediately eligible for the Medicare Sub Part B and that I submit is such a small group that its really diminimous.
Potter Stewart: Well, wouldn't it also -- wouldn't an American citizen who hadn't been under the Social Security Act to the railroad retirement program and who reached 65 be more favorably treated?
Harriet S. Shapiro: No, because the principle there is that he has been a participating member of his community.
Potter Stewart: But not of any social security program?
Harriet S. Shapiro: Not of a social security program, but my point is that he has been living here and he has been --
Potter Stewart: Well, maybe he --
Harriet S. Shapiro: -- subject --
Potter Stewart: -- but we don't know if he's been a net asset or a net liability to American society?
Harriet S. Shapiro: Well, with the theory of the act is that --
Potter Stewart: He's been living here and that's maybe --
Harriet S. Shapiro: He has been living here, he has been contributing as a member of the community. Congress decided that five years of participation in the national community is enough for eligibility for Medicare Part B. It could have made the period longer or it could have made it shorter that drew the line at five years. Under traditional equal protection analysis, this Court should not decide whether that was the best place to draw the line. The line is however, consistent with the Immigration Act which also uses five years as the period in which the alien is in some way is here on probation. His native country remains more responsible for him during that period than it is after five years. For example, he ordinarily can't be -- can be deported for indigency within five years or for a single crime which involves interpretive committed within that time. Of course too, he may not ordinarily be naturalized until he has been here for five years. So that until that time, there can't be no full assumption of the rights of citizenship nor total disillusion of the bond with his native country. We submit therefore that the distinction between citizens and aliens in the Medicare program is not unreasonable. It also serves the rational fiscal purpose of reducing the amount of the federal subsidy required for the program. Court below thought that the Government did not benefit financially from postponing the eligibility of aliens except to the extent that they die. It made two assumptions not supported by the record. First, it assumed that no elderly aliens returned to their native country before five years are up. And second, that they postponed needed care which it further assumed made the eventual cost to the Government of the insurance as great as if they were eligible immediately. The immigration service does not have records of how many elderly immigrants leave the country within five years and the second assumption is pure speculation. Of course if it's true, it's equally irrational to deny benefits to those have not yet reached 65 because they too will postpone necessary care which could have been provided more cheaply before they reach 65. Anyway, we submit that these are certainly legislative judgments. This is a novel program which has been under constant legislative review and it is up to Congress to evaluate all these factors and decide whether and how much to liberalize eligibility for Medicare. I like to reserve the remainder of my time.
Warren E. Burger: Very well. Mr. Feinberg.
Alfred Feinberg: Mr. Chief Justice and members of the Court. It seems to me that Mrs. Shapiro's argument rests primarily on Mr. Bork's original argument which was that the Fifth Amendment notions of equal protection do not apply to aliens or if that is true and that is what this Court holds, then I think this case falls for my clients, I think the case argued previously falls. But I don't believe that that is true because that is such an overwhelmingly inconsistent and novel argument that implicit within it are the following. That a classification which this Court has now held three times explicitly ones but implicitly two other times and many other Courts have followed, that is a classification of aliens is not inherently suspect when that classification is made by the Federal Government rather than the states. Two, that the normal test of whether a classification is justified or not justified, a classification involving individual work as opposed to classifications involving economics and taxes and that's what we're dealing here with individual worth. The normal test, which has to deal with the relationship of the classification to the objective of the statute is inapplicable and in fact, this wasn't even spoken about here. The reason it wasn't spoken about is because of the submission by the Government to this Court. Now, twice now this morning that the Federal Government can discriminate against aliens as aliens in any way they see fit.
Warren E. Burger: Well I don't think the argument went quite that far?
Alfred Feinberg: Well, I think Mr. Bork's argument did in the brief that was filed by the Government in this case. The argument that repeated at least four times was that the Government has made the discrimination in this case against aliens, has made the classification in this case against aliens and indeed in virtually all of those statutes which are listed in the appendix attached to the one brief. The Government's one brief because the aliens have not shown a “substantial and enduring connection with the United States efficient for the United States Government to grant them the benefits that are granted to citizens under each of those particular provisions,” the one we're talking about here are Medicare B provisions. Well, the substantial and enduring connection with the United States is really saying aliens when you compare aliens with citizens, citizens have an absolute and enduring connection with the United States. So those who do not have relatives to citizens, those who do not have a substantial and enduring connection with the United Sates are aliens. Now, if that's the basis of the discrimination and it is asserted repeatedly, in fact that is headed as the theme of the discrimination. The theme of a classifications in each of these cases is that the underlying theme, I think the words are used, are that they do not have a substantial and enduring connection with the United States. Well this is advancing a new test of legislation which creates classifications because the test, the traditional test and I'm not talking about the test now that is used for suspect classifications or with or fundamental interest involved or any special circumstances. Just the traditional test is the one articulated in a case which did not involve a suspect classification. It involved the question of whether a conscientious objector could receive the same benefits as a veteran after having finished his conscientious objector service. And he said that he was discriminated against because he serves his country just as veterans who had fought in the war. This Court upheld that discrimination and that classification in that case but the Court went on to say that our analysis of the classification proceeds on the basis that although an individual's right to equal protection of the law does not deny the power to treat different classes of persons in different ways, it denied the power to legislate that different treatment be accorded to persons, placed by statute into different classes on the basis of criteria wholly unrelated to the objective of the statute. A classification must be reasonable, not arbitrary and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation so that all persons similarly circumstanced shall be treated alike. Now, here we are told that there is a new test. We do not look at the object of the statute. Medicare, the object of the statute is to take care of retirement age individuals, medical problems. In this case Medicare Part B, it's related to physician services generally, arguably some argue with the all home health care services, dietary services, out patient services, those kind of services are the kind of services that are involved in Medicare Part B. There are some more of them, but you can get the idea of those services. To distinguish from Part A really which it deals with hospitalization benefit, Part B usually talks about medical benefits which are doctor services.
Potter Stewart: Most part A and part B are available only to people over 65 years old?
Alfred Feinberg: That is correct but there is substantial difference in the way they are funded which is very interesting. Part B is funded from the general revenues of the treasury of the United States, that is the tax dollar. That is the money that comes from income taxes and however else the revenues of the United States receive its moneys. It does not come from social security tax.
Potter Stewart: And those are matching fund in part B, right?
Alfred Feinberg: Matched, yes.
Potter Stewart: 50-50.
Alfred Feinberg: Because every applicant for Part B must pay a premium which is matched by the treasury of the United States --
Potter Stewart: From the general fund.
Alfred Feinberg: From the general revenue funds, that is correct. And so, while it as us true that Part B and it is natural that part B should fall upon Part A and it is called the Medicare program and it is within the preview of the Social Security Act which is all of Title 42 is called a social security provision. In reality, social security has very little to deal with it, that is social security to the man in the street. It has to do with somebody's choosing to participate, it's a voluntary program. Somebody who is 65 years old choosing to seek insurance that is available pursuant to congressional enactment for which a premium is paid by the applicant and a like premium or an equal or part of the premium is paid by the tax payers. Those tax payers not only include aliens, but the children of aliens and anybody related to aliens who are living in the United States. So the argument that an alien is here only for five years and is contributing only five years, it's a specious argument, particularly when we will look at -- and the problem in this case really arose definitionally. The classification here that we're talking about is an alien lawfully admitted for permanent residence who has resided in the United States continuously during the five years immediately proceeding the month in which he applies for the benefits. So we have two residency requirements here, a durational residency requirement and a status residency requirement. The status being that of permanent resident and forgetting for a moment about the durational residency requirement which was declared unconstitutional by the District Court in this case and going to the question of the status residency requirement for moment, it is to be noted that the problem arises because of the nature or the manner in which Cuban refugees were allowed to come in to the United States. Indeed allowed is very conservative word. Those of us who have lived in this country for the last 10 years know that President Eisenhower made a speech in which he beseeched the Cubans who wanted to escape from Castro's Cuba, Castro taking over in Cuba in 1959, this speech was made I believe in 1961 to come in to the United States, inducing them to come in to the United States, so the point where we started sending planes during the 1960's to pick up anybody who Castro would allow onto those planes to bring them into the United States. So here we begged these people to come in to the United States and thousands and thousands and thousands of them came. Indeed it is estimated that approximately 600 to 700,000 came. And of those numbers approximately 250,000 to 300,000, the figures were inaccurate, they were coming in such great numbers that they were overwhelming the agencies that were taking care of them and the coming from Miami, Florida I am quite familiar with the chaos that was caused by this enormous numbers of Cubans coming in to the community, the bureaucratic problems of counting them for example and analyzing what their status was and figuring out how to allow them into the United States under the then current laws of the United States was a very serious problem. At the beginning when they were trickling in, they came in as non-immigrants and when their non-immigrant visa run out, they were then subject to deportation proceedings. During the deportation proceedings, they claimed political asylum and it was granted to them. This was a very cumbersome process. When they claimed political asylum, they became immigrants. Once they became immigrants, they qualified for the Medicare Part B provision because the definition of immigrant is a person admitted for permanent residence. So those who were fortunate enough to be defined as immigrants which was just fortuitous, depended on when and how they came in to this country are qualified for Medicare Part B, but as the numbers increased and they became -- they started coming in by the thousands, a more efficient way had to be found to allow them to come in. And the more efficient way was to choose to allow them to come in under the parole powers of the Attorney General of the United States which are -- which gave the Attorney General the power to allow virtually any foreign who enter the United States, any alien into the United States under any conditions. This power is given to him by Congress and it is very, very wide and broad power, a wide and broad power. And so approximately 250 to 300,000 people came in. Now the problem with those people coming in is what brings us before this Court because they came in as their classification was parolee and a parolee as we point out in our brief is neither an immigrant nor a non-immigrant. He is in a special status of parolee and the term which is used referring now to the status term. Resident -- an alien lawfully admitted for permanent residence does not cover parolee, at the historical development of the definition of that term, does not cover parolees. So now we have -- it's estimated by the lower court and my calculations are about the same on the basis of these sketchy figures that we have, we have somewhere in the neighborhood of 20,000 individuals who are parolees.
Thurgood Marshall: Is your real complaint that, he is designated as the parolee rather than resident alien?
Alfred Feinberg: That is one of the complaints. If he was designated as a resident, they --
Thurgood Marshall: What good is that complaint when certainly Congress has a right on this immigration laws to decide which is which, isn't that one of Congress' rights?
Alfred Feinberg: To detriment --
Thurgood Marshall: That you either admit them as the resident alien or parolee, that's the right of immigration and naturalization?
Alfred Feinberg: My answer to that is that I have a two-fold answer to that. Number one, that you must -- when that classification is used --
Thurgood Marshall: You admit that your complaint is that he is a parolee rather than a resident alien?
Alfred Feinberg: No. My complaint is that the classification is used to exclude him from Medicare Part B, that's my complaint.
Thurgood Marshall: If he was a resident alien, he would be alright.
Potter Stewart: That is one a law.
Alfred Feinberg: That's one part of it.
Potter Stewart: One place as for permanent resident.
Alfred Feinberg: Right.
Thurgood Marshall: Right.
Alfred Feinberg: That's right. The complaint is --
Thurgood Marshall: So your complaint is that when he was admitted, he was given the wrong status?
Alfred Feinberg: Not the wrong status, he could be admitted --
Thurgood Marshall: Well in that position I think you're in a whole lot of problem?
Alfred Feinberg: No, that's not the wrong status. He could have been in neither under any status. The question is what they did with that status after he was admitted and I'm submitting to the Court that the status of parolee does not fit within the objective and purpose of Medicare Part B which is the task of the classification. Now, I have no argument with him being a parolee. My argument is utilizing that parolee classification to deny him the benefits of Medicare Part B. What is the relationship between taking care of a retirement age -- retirement age alien who resides in the United States and the fact that he is a parolee. There is no relationship. The only relationship is that he is an alien and their argument is a circular argument. Their argument is he is an alien and we can do whatever we want with aliens regardless of the relationship between the objective of the statute which excludes him and the fact that he is an alien. Those two are facts, one that a person whose an alien or is a parolee or it has any condition of alienage and two that the object of the statute is to take care of individual's medical problems when they are -- reach retirement age are totally unrelated and this is why this is not discussed in the Government's brief because the if the true test of determining whether a class is a proper classification, a classification that can be sustained constitutionally is whether it's related to the objective of the statute, we find that the classifying aliens are totally unrelated to the objective of the statute. The objective of the statute is set out in the statute. It's taking care of people's medicals problem when they're 65 years old. What does that have to do if whether somebody is a citizen or an alien? That's not discussed by the Government because there is no argument that can be made relating the objective of the statute to the classification that's created. What I am saying is that the problem that has brought me to the Court is the fact they have utilized the parolee. The Government has utilized the parolee status of these people to exclude them irrationally and arbitrarily from a program which has nothing to do with their status as parolee that's like excluding garbage man or policeman or plumbers. There -- it's an arbitrary exclusions from the statute and the --
Warren E. Burger: Are you suggesting the there's some plenary power in Congress to deal with garbage man and plumbers to take your illustrations that's comparable to that of immigration?
Alfred Feinberg: I was using that example to talk about the arbitrariness. What I'm saying is that the so-called plenary power of Congress that has to do with the aliens must be related in this argument that has already been made already, must be related to naturalization, deportation, admittances to the United States even citizenship.
Warren E. Burger: Do you agree with the somewhat provisional concession that Mr. Steinman made in the previous case?
Alfred Feinberg: Yes sir.
Warren E. Burger: United States could simply exclude all aliens and say no one can come in this country?
Alfred Feinberg: I don't think that that would -- I don't think would be provisional. I think Mr. Steinman would agree with that.
Warren E. Burger: I said provisional claims.
Alfred Feinberg: No I think he would agree with that completely.
Warren E. Burger: Because he withdrew it, he gave it with his right hand and took it back with his left, he said when that case came up, it would take the other position.
Alfred Feinberg: If Your Honor please, I think what he said was that if you allowed aliens to come in under certain conditions that he might question those conditions, but I don't think he would challenge a statement that Your Honor has just made and that is that the United States simply can close its doors to aliens.
Potter Stewart: In any event, you don't challenge it?
Alfred Feinberg: I don't challenge it at all, I think United States certainly can close its doors to aliens but it hasn't and it hasn't tied these conditions to naturalization or admittance or deportation.
William J. Brennan, Jr.: Suppose it has -- suppose that Congress could do that, what would be your view?
Alfred Feinberg: I would give the same provisional agreement that Mr. Steinman gave. I think the cases that have been before this Court where such as Flemming versus Nestor for example which was mentioned by my worthy opponent where you tie -- I picked that case, very controversial case and I think that's a four to three decision which -- the validity of which has been questioned through the years, but there is a case in which seemingly very arbitrary exclusion from -- or deportation took place and this Court upheld that. Well that's because that was tied to deportation and that's where the plenary power of Congress comes in, deportation, immigration in terms of naturalization.
William J. Brennan, Jr.: I thought Flemming and Nestor was suspension of social security benefits --
Potter Stewart: For deportee?
Alfred Feinberg: For -- incidents deportation.
William J. Brennan, Jr.: Some membership in --
Potter Stewart: Right.
Alfred Feinberg: That is correct.
Potter Stewart: But he had to be a deportee.
Alfred Feinberg: Yes, that he was a deportee and they said when he got deported to another country, he would lose his social security benefits, but it was tied to deportation and there is not one case, not one of all of these cases and I've read them all carefully that is cited by the appellants in this case which justifies the proposition, are imposing conditions upon aliens within this country that are unconnected with naturalization or deportation or related matters such as national sovereignty, powers of citizenship.
Byron R. White: What about the provisions against becoming an indigent?
Alfred Feinberg: The -- that's tied to naturalization, yes sir. They say that if you come into this country as an indigent then you have violated the naturalization, you've committed a fraud because you can't come in to this country as indigent unless you post a bond but that's a condition on naturalization. I am agreeing with that if you tie to a condition --
Byron R. White: Well again, the Government makes -- makes the argument here -- Government makes the argument that the provision in the social security clause is tantamount to as the same -- it's just as though they had made it that condition of entry in to the country, and you say it isn't?
Alfred Feinberg: But the fact to the matter is that it isn't. They have not --
Byron R. White: It isn't the --
Alfred Feinberg: There is nothing, nothing -- not only as it not yet there in literal words of the statute which were in the Social Security Act, but it is not even there or mentioned in the legislative history. They don't talk about the question of naturalization or admittance into this country or anything related to that in the passage of this provision or indeed in the passage of most of the acts which are listed in the appendix to the Government's one brief.
Byron R. White: So this prohibition against sharing in the scheduled than it is, this is unconstitutional because it's in the Social Security Act rather than in the immigration law.
Alfred Feinberg: I would give my provisional agreement to that, that's not the question before this Court. The test of the constitutionality again are relate -- the test of the constitutionality of a classification is related to the object of the benefit conferred by the legislation. That's been the traditional test that this Court has used time and time again. Unrelated to the fact that a classification maybe inherently suspect which we have here, unrelated to the fact that a fundamental right is involved here such as Medical Care. Unrelated to any of those matters. The traditional and consistent test has been whether or not the classification is related to the object or purpose of the statute from which the class is denied benefits. And that is not the test that the Government would urge this Court to use in this case. The test that the Government urges this Court to use is simply to say that since these people are aliens, the Government has a right to exclude them from any benefits conferred on citizens.
Thurgood Marshall: Mr. Feinberg would your argument cover a person with a temporary visa?
Alfred Feinberg: No it would not for the simple reason that the class -- that this case covers.
Thurgood Marshall: He's an alien?
Alfred Feinberg: But he is a nonimmigrant alien and this case covers only immigrant aliens, conditional entrance.
Thurgood Marshall: Not without the immigrant aliens.
Alfred Feinberg: I'm sorry that's what the lower court did when they created a class that's affected by this case.
Thurgood Marshall: I am not talking about the law, I am talking about your position.
Alfred Feinberg: Excuse me sir?
Thurgood Marshall: Your position is that these immigrant aliens are the same as resident aliens?
Alfred Feinberg: No, my position is that you cannot use alienage as a basis for discriminating against aliens who come to this country and welcome --
Thurgood Marshall: Have they made any effort to change the status to resident aliens?
Alfred Feinberg: Excuse me sir?
Thurgood Marshall: Have they made any effort to change these people status to resident aliens?
Alfred Feinberg: These people are not in a position because of the Laws of the United States to seek that change until they have been here in theory for two years, in practice for four years and they have not been here for that length of time.
Thurgood Marshall: So it isn't close to the visiting visas?
Alfred Feinberg: No, on the contrary there's a whole section in my brief which addresses itself to that question. It is much closer to an immigrant. For several reasons. I'll direct the Court's attention to --
Thurgood Marshall: I am misled by your argument by all those who came in, in President Eisenhower's time?
Alfred Feinberg: Right.
Thurgood Marshall: I find now, you are arguing about those who came in last week. Am I right?
Alfred Feinberg: My argument is directed at those -- about 250,000 who came in between 1965 and the present. Those are the people who are --
Thurgood Marshall: Couldn't they have had their status adjusted by now?
Alfred Feinberg: Some could have -- the particular plaintiffs in this case could not until next year.
Thurgood Marshall: Because they haven't been here long enough, because this is just --
Alfred Feinberg: Just -- no, they've been here since 1971, but it takes four years before they can qualify to become immigrants which is permanent resident.
Thurgood Marshall: What is all this argument about President Eisenhower got to do it with them?
Alfred Feinberg: Because -- but for the fact that all of these Cubans were invited into this country and are here now the provisions of Medicare Part B would not affect that many people.
Warren E. Burger: Well does it make any difference, how many are affected? From your --
Alfred Feinberg: It fits to Congress and that's the point because Congress in a related provision and yes I saw a statute. So forget the question of the alien who comes in as a parolee and here we're talking about indigents whereas in the case before the Court we're not necessarily talking about indigents. And what Congress did was they said the following, this is an Act of Congress that I'm reading from. Congress has authorized welfare payments to the indigent blind, aged and disabled individual who is “either (1) a citizen or (2) an alien lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law,” continuing the statute, “including any alien who is lawfully present in the United States as a result of the provisions of Section 1153 (a) 7 which is conditional entrance,” which is in the class that's included by the lower court in this case or “Section 1182 (d) 5 which is parolee.” So in other words what Congress has done here is included in the SSI provisions of the Social Security Act coverage for the persons who are excluded from the Medicare B provisions of the Social Security Act. And no doubt it was an inadvertent failure on the part of Congress to do that but we are submitting that it is possible for this Court to construe the admittance for permanent residency requirements as covering Cuban parolees because of the fact that they are covered here, because of the fact that since 1971 they must not only have registered for the military service but are subject to induction in the military service as our citizens and because of the fact that they are entitled to retroactive adjustment of status which non-immigrants are not entitled to generally with some exceptions or after two years presence in the United States, they can make an application fro retroactive adjustment of status to become immigrants. Actually it takes four years to get that retroactive adjustment and that's why I said my clients could not receive it. They came in 1971 and we haven't -- the four years hasn't elapsed yet.
Potter Stewart: Your clients are residents, are they not?
Alfred Feinberg: My clients are --
Potter Stewart: They are not visitors.
Alfred Feinberg: That is correct, not only that.
Potter Stewart: I mean how about even in the contemplation of law, what is the definition of a parolee? Is he a resident in the United States or not?
Alfred Feinberg: Well, the problem is that we have two definitions now. On the contemplation of law prior to the Act -- the provision that I just read, he would be considered a nonresident of the United States, a legal fiction as you will.
Potter Stewart: He's here and he's here for an indefinite period, but in contemplation of law, he's not a resident.
Alfred Feinberg: Right, but here we have an Act of Congress which talks about them and talks about in these terms. An alien mostly admitted for permanent residents, that's not -- that's not our point.
Potter Stewart: [Inaudible]
Alfred Feinberg: Or otherwise permanently residing in the United States under color of law and then it goes on to specifically say that it includes parolee.
Potter Stewart: That that was the --
Alfred Feinberg: So I am saying that the Congressional definition now has changed what has been the traditional definition and we now have people who are parolees, who in contemplation of law enacted by Congress, an another statute admittedly but a parallel statute, within the Social Security Act by the way, supplemental security income, are permanently residing in the United States under color of law, that's that language, that's the statutory language that's used and that's on page 42 of the brief.
Thurgood Marshall: And it also said that he shall not legally within the United States.
Alfred Feinberg: Excuse me sir?
Thurgood Marshall: It does not ordinarily place him “legally” within the United States, that what your lower court decision says.
Alfred Feinberg: That is the traditional definition of parolee. I -- what I'm saying is that Congress has changed that.
Harry A. Blackmun: Mr. Feinberg before you sit down, this is probably totally unimportant, but I'm interested in the compliance of the three-judge court statute. Originally Judge Cohen was designated as the receiving judge and then was replaced by Judge King. Do you know the reason for that?
Alfred Feinberg: Not only do I know the reason for that, I don't even recall that happening sir.
Harry A. Blackmun: Well it's very definitely in the appendix and the --
Alfred Feinberg: Judge Fulton is the chief judge. My guess would be that he just simply assigned that the judge came, now it just be --
Harry A. Blackmun: Well the statute is pretty specific, you see?
Alfred Feinberg: I'm sorry I cannot illuminate the Court in that subject.
William H. Rehnquist: Was this heard after Judge Cohen moved up to West Palm?
Alfred Feinberg: My guess is yes but I cannot be absolutely sure that could have been the reason.
Warren E. Burger: Thank you Mr. Feinberg. Do you have any further Mrs. Shapiro?
William J. Brennan, Jr.: Do you know the answer Mrs. Shapiro?
Harriet S. Shapiro: I'm sorry I don't. All I wanted to emphasize once that Congress has drawn lots of lines in establishing immigration policy. The Cuban parolees are parolees general, are admitted on a temporary basis and they are not considered to establish permanent residence. The Medicare provisions which included this immigration policy went into affect in 1966 and these aliens came in, in 1971. On the basis of the policy that was established in 1966 so that when they entered and they entered under the conditions that had -- were in effect then in Medicare Act as well in the Immigration Act.
Warren E. Burger: Mr. Feinberg called this a fundamental right, that is the right to have Medical Care. From what you say I take it, your response to that would be that it's a right only as defined by the Congress.
Harriet S. Shapiro: This is certainly it's a -- what's involved here is subject by the --
Warren E. Burger: The five-year residency is one of the conditions.
Harriet S. Shapiro: Is one of the conditions under which these people were admitted, and after five years they would be entitled.
Warren E. Burger: Because they're getting substantial subsidy from the treasury of the United States.
Harriet S. Shapiro: Yes.
Warren E. Burger: 50% contribution.
Harriet S. Shapiro: Well the basic principle is that after they've been for five years, they have made the contribution or as -- as they've been here for long enough so that it's rational to assume that they have that kind of a connection that it's appropriate for them to be entitled to this insurance.
Warren E. Burger: Thank you.
Harry A. Blackmun: Mr. Feinberg, I think it's important to find out the reason for these substitution of judge King for Judge Fulton, would you ascertain that and let the Court inform by a letter?
Alfred Feinberg: I certainly will and I will inform the Court.
Warren E. Burger: Can you send a copy to Mrs. Shapiro and the Solicitor General's office.
Alfred Feinberg: Yes sir.
Warren E. Burger: Very well, thank you. The case is submitted.