(concurring).
Although Section 222 of the New York Labor Law, as amended, was undoubtedly a well-intentioned effort to alleviate unemployment among New York citizens, it cannot withstand constitutional scrutiny because of its failure to distinguish between lawfully resident aliens and those who are not, as Judge Gurfein so cogently explains. I simply wish to add my view that the statute unfortunately discriminates impermissibly not only against lawfully resident aliens but also against citizen businessmen of the State.
The plaintiffs here include not only lawfully resident aliens but also domestic corporations owned and operated by New York citizens. Section 222 denies them the right to bid for and perform public work contracts solely because they employ such aliens. Business corporations such as plaintiffs although not citizens are “persons” and thus entitled to equal protection of the laws under the Fourteenth Amendment. Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660, 665 (1936); Safeguard Mutual Insurance Co. v. Miller, 472 F.2d 732, 733 (3 Cir. 1973). They may not be subjected to arbitrary regulations which interfere with their ordinary and lawful business operations.
Even though the plaintiff corporations may be free to deny employment to aliens, see, e. g., Espinoza v. Farah Manufacturing Company, Inc., 414 U.S. 86, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973), a general rise in the level of unemployment due to adverse economic conditions does not provide even a rational basis, let alone a compelling reason for the State to penalize them as employers of alien labor in the manner prescribed by § 222. In the first place, such economic conditions are obviously beyond their control. Secondly, those conditions are as likely to bring unemployment to aliens as to citizens, if not more so. Thirdly, from the standpoint of State revenues, the State benefits from the employment of all residents, regardless of citizenship.
Of course the State has both an interest and a responsibility to promote conditions that will bring maximum employment opportunities to all lawful residents. In awarding public works contracts, however, the State’s primary interest is to ensure that the work is performed efficiently, competently and at the lowest cost to the public treasury. Section 222 is not at all concerned with the achievement of those objectives but only with the citizenship status of those who will do the work. That basis of distinction is purely arbitrary and no longer permissible under the authorities cited by Judge Gurfein.