|||SUPREME COURT OF THE UNITED STATES
|||1963.SCT.40338 <http://www.versuslaw.com>; 372 U.S. 144, 83
S. Ct. 554, 9 L. Ed. 2d 644
|||decided*fn*: February 18,
|||KENNEDY, ATTORNEY GENERAL,
|||APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT
|||Bruce J. Terris reargued the cause for appellant in No. 2. J. William
Doolittle reargued the cause for appellant in No. 3. On the briefs in both
cases were Solicitor General Cox, Assistant Attorney General Miller, Oscar
H. Davis, Beatrice Rosenberg and Jerome M. Feit.
|||Thomas R. Davis reargued the cause for appellee in No. 2. With him on
the brief was John W. Willis.
|||Leonard B. Boudin reargued the cause for appellee in No. 3. With him on
the brief was Victor Rabinowitz.
|||Jack Wasserman, David Carliner, Rowland Watts, Stephen J. Pollak and Osmond
K. Fraenkel filed briefs for the American Civil Liberties Union, as amicus
curiae, urging affirmance in both cases.
|||Milton V. Freeman, Robert E. Herzstein, Horst Kurnik and Charles A. Reich
filed a brief, urging affirmance in No. 3, for Angelika Schneider, as amicus
|||Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg
|||MR. JUSTICE GOLDBERG delivered the opinion of the Court.
|||We are called upon in these two cases to decide the grave and fundamental
problem, common to both, of the constitutionality of Acts of Congress which
divest an American of his citizenship for "departing from or remaining outside
of the jurisdiction of the United States in time of war or . . . national
emergency for the purpose of evading or avoiding training and service" in
the Nation's armed forces.*fn1
I. THE FACTS.
|||A. Mendoza-Martinez -- No. 2.
|||The facts of both cases are not in dispute. Mendoza-Martinez, the appellee
in No. 2, was born in this country in 1922 and therefore acquired American
citizenship by birth. By reason of his parentage, he also, under Mexican
law, gained Mexican citizenship, thereby possessing dual nationality. In
1942 he departed from this country and went to Mexico solely, as he admits,
for the purpose of evading military service in our armed forces. He concedes
that he remained there for that sole purpose until November 1946, when he
voluntarily returned to this country. In 1947, in the United States District
Court for the Southern District of California, he pleaded guilty to and
was convicted of evasion of his service obligations in violation of 11 of
the Selective Training and Service Act of 1940.*fn2
He served the imposed sentence of a year and a day. For all that appears
in the record, he was, upon his release, allowed to reside undisturbed in
this country until
, when, after a lapse of five years, he was served with a warrant of arrest
in deportation proceedings. This was premised on the assertion that, by
remaining outside the United States to avoid military service after September
27, 1944, when 401 (j) took effect, he had lost his American citizenship.
Following hearing, the Attorney General's special inquiry officer sustained
the warrant and ordered that Mendoza-Martinez be deported as an alien. He
appealed to the Board of Immigration Appeals of the Department of Justice,
which dismissed his appeal.
|||Thereafter, Mendoza-Martinez brought a declaratory judgment action in
the Federal District Court for the Southern District of California, seeking
a declaration of his status as a citizen, of the unconstitutionality of
401 (j), and of the voidness of all orders of deportation directed against
him. A single-judge District Court in an unreported decision entered judgment
against Mendoza-Martinez in 1955, holding that by virtue of 401 (j), which
the court held to be constitutional, he had lost his nationality by remaining
outside the jurisdiction of the United States after September 27, 1944.
The Court of Appeals for the Ninth Circuit affirmed the judgment,
238 F.2d 239.
This Court, in 1958, Mendoza-Martinez v. Mackey,
356 U.S. 258,
granted certiorari, vacated the judgment, and remanded the cause to the
District Court for reconsideration in light of its decision a week earlier
in Trop v. Dulles,
356 U.S. 86.
|||On September 24, 1958, the District Court announced its new decision,
also unreported, that in light of Trop 401 (j) is unconstitutional because
not based on any "rational nexus . . . between the content of a specific
power in Congress and the action of Congress in carrying that power into
execution." On direct appeal under 28 U. S. C. 1252, this Court noted probable
359 U.S. 933,
and then of its own motion remanded the cause, this time with permission
to the parties to amend
the pleadings to put in issue the question of whether the facts as determined
on the draft-evasion conviction in 1947 collaterally estopped the Attorney
General from now claiming that Mendoza-Martinez had lost his American citizenship
while in Mexico. Mackey v. Mendoza-Martinez,
362 U.S. 384.
|||The District Court on remand held that the Government was not collaterally
estopped because the 1947 criminal proceedings entailed no determination
of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous
holding that 401 (j) is unconstitutional, adding as a further basis of invalidity
that 401 (j) is "essentially penal in character and deprives the plaintiff
of procedural due process. . . . The requirements of procedural due process
are not satisfied by the administrative hearing of the Immigration Service
nor in this present proceedings."*fn3
The Attorney General's current appeal is from this decision. Probable jurisdiction
was noted on February 20, 1961,
365 U.S. 809.
The case was argued last Term, and restored to the calendar for reargument
369 U.S. 832.
|||B. Cort -- No. 3.
|||Cort, the appellee in No. 3, is also a native-born American, born in Boston
in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and
two young children are likewise American citizens by birth. Following receipt
of his M. D. degree from the Yale University School of Medicine in 1951,
he went to England for the purpose of undertaking a position as a Research
Fellow at Cambridge University. He had earlier registered in timely and
proper fashion for the draft and shortly before
his departure supplemented his regular Selective Service registration by
registering under the newly enacted Doctors Draft Act.*fn4
In late 1951 he received a series of letters from the American Embassy in
London instructing him to deliver his passport to it to be made "valid only
for return to the United States." He did not respond to these demands because,
he now says in an affidavit filed in the trial court in this proceeding,
"I believed that they were unlawful and I did not wish to subject myself
to this and similar forms of political persecution then prevalent in the
United States. . . . I was engaged in important research and teaching work
in physiology and I desired to continue earning a livelihood for my family."
Cort had been a member of the Communist Party while he was a medical student
at Yale from 1946 to 1951, except for the academic year 1948-1949 when he
was in England. In late 1952, while still in England at Cambridge, he accepted
a teaching position for the following academic year at Harvard University
Medical School. When, however, the school discovered through further correspondence
that he had not yet fulfilled his military obligations, it advised him that
it did not regard his teaching position as essential enough to support his
deferment from military service in order to enter upon it. Thereafter, his
local draft board in Brookline, Massachusetts, notified him in February
1953 that his request for deferment was denied and that he should report
within 30 days for a physical examination either in Brookline or in Frankfurt,
Germany. On June 4 and on July 3 the draft board again sent Cort notices
to report for a physical examination, the first notice for examination on
July 1 in Brookline, and the second for examination within 30 days in Frankfurt.
He did not appear at either place, and the board on August 13 ordered him
to report for induction on September 14,
. He did not report, and consequently he was indicted in December 1954 for
violation of 12 (a) of the Selective Service Act of 1948*fn5
by reason of his failure to report for induction. This indictment is still
outstanding. His complaint in this action states that he did not report
for induction because he believed "that the induction order was not issued
in good faith to secure his military services, that his past political associations
and present physical disabilities made him ineligible for such service,
and that he was being ordered to report back to the United States to be
served with a Congressional committee subpoena or indicted under the Smith
Act . . . ." Meanwhile, the British Home Office had refused to renew his
residence permit, and in mid-1954 he and his family moved to Prague, Czechoslovakia,
where he took a position as Senior Scientific Worker at the Cardiovascular
Institute. He has lived there since.
|||In April 1959, his previous United States passport having long since expired,
Court applied at the American Embassy in Prague for a new one. His complaint
in this action states that he wanted the passport "in order to return to
the United States with his wife and children so that he might fulfill his
obligations under the Selective Service laws and his wife might secure medical
treatment for multiple sclerosis." Mrs. Cort received a passport and came
to this country temporarily in late 1959, both for purposes of medical treatment
and to facilitate arrangements for her husband's return. Cort's application,
however, was denied on the ground that he had, by his failure to report
for induction on September 14, 1953, as ordered, remained outside the country
to avoid military service and thereby automatically forfeited his American
citizenship by virtue of 349 (a)(10) of the Immigration
and Nationality Act of 1952, which had superseded 401 (j). The State Department's
Passport Board of Review affirmed the finding of expatriation, and the Department's
legal adviser affirmed the decision. Cort, through counsel, thereupon brought
this suit in the District Court for the District of Columbia for a declaratory
judgment that he is a citizen of the United States, for an injunction against
enforcement of 349 (a)(10) because of its unconstitutionality, and for an
order directing revocation of the certificate of loss of nationality and
issuance of a United States passport to him. Pursuant to Court's demand,
a three-judge court was convened. The court held that he had remained outside
the United States to evade military service, but that 349 (a)(10) is unconstitutional
because "We perceive no substantial difference between the constitutional
issue in the Trop case and the one facing us." It therefore concluded that
Cort is a citizen of this country and enjoined the Secretary of State from
withholding a passport from Cort on the ground that he is not a citizen
and from otherwise interfering with his rights of citizenship. Cort v. Herter,
187 F.Supp. 683.
|||The Secretary of State appealed directly to this Court, 28 U. S. C. 1252,
1253, which postponed the question of jurisdiction to the hearing of the
case on the merits.
365 U.S. 808.
The preliminary question of jurisdiction was affirmatively resolved last
Term, Rusk v. Cort,
369 U.S. 367,
leaving the issue of the validity of 349 (a)(10) for decision now, after
369 U.S., at 380.
|||Before we consider the essential question in these cases, the constitutionality
of 401 (j) and 349 (a)(10), two preliminary issues peculiar to No. 2 must
|||II. THE THREE-JUDGE COURT ISSUE.
|||At the threshold in Mendoza-Martinez' case is the question whether the
proceeding should have been heard by a three-judge District Court convened
pursuant to 28 U. S. C. 2282,
which requires such a tribunal as a prerequisite to the granting of any
"interlocutory or permanent injunction restraining the enforcement, operation
or execution of any Act of Congress for repugnance to the Constitution of
the United States . . . ." If 2282 governs this litigation, we are once
again faced with the prospect of a remand and a new trial, this time by
a three-judge panel. We are, however, satisfied that the case was properly
heard by a single district judge, as both parties urge.
|||In the complaint under which the case was tried the first and second times,
Mendoza-Martinez asked for no injunctive relief, and none was granted. In
the amended complaint which he filed in 1960 to put in issue the question
of collateral estoppel, he added a prayer asking the court to adjudge "that
defendants herein are enjoined and restrained henceforth from enforcing"
all deportation orders against him. However, it is abundantly clear from
the amended trial stipulation which was entered into by the parties and
approved by the judge to "govern the course of the trial," that the issues
were framed so as not to contemplate any injunctive relief. The first question
was articulated only in terms of whether the Government was "herein estopped
by reason of the indictment and conviction of plaintiff for [draft evasion]
. . . from denying that the plaintiff is now a national and citizen of the
United States." The second question asked only for a declaration as to whether
401 (j) was "unconstitutional, either on its face or as applied to the plaintiff
herein." The conclusion that no request for injunctive relief nor even any
contemplation of it attended the case as it went to trial is borne out by
the total lack of reference to injunctive relief in the District Court's
memorandum opinion, findings of fact and conclusions of law, and judgment.
192 F.Supp. 1.
The relief granted was merely a declaration that the 1944 Amendment "is
unconstitutional, both on its face and as applied to the plaintiff herein,"
and "that the plaintiff is now, and ever since the date of his birth has
been, a national and citizen of the United States." Thus, despite the amendment
to Mendoza-Martinez' complaint before the third trial, it is clear that
neither the parties nor the judge at any relevant time regarded the action
as one in which injunctive relief was material to the disposition of the
case. Since no injunction restraining the enforcement of 401 (j) was at
issue, 2282 was not in terms applicable to require the convening of a three-judge
|||Whether an action solely for declaratory relief would under all circumstances
be inappropriate for consideration by a three-judge court we need not now
decide, for it is clear that in the present case the congressional policy
underlying the statute was not frustrated by trial before a single judge.
The legislative history of 2282 and of its complement, 2281,*fn6
requiring three judges to hear injunctive suits directed against federal
and state legislation, respectively, indicates that these sections were
enacted to prevent a single federal judge from being able to paralyze totally
the operation of an entire regulatory scheme, either state or federal, by
issuance of a broad injunctive order. Section 2281 "was a means of protecting
the increasing body of state legislation regulating economic enterprise
from invalidation by a conventional suit in equity. . . . The crux of the
business is procedural protection against an improvident state-wide doom
by a federal court of a state's legislative policy. This was the aim of
Congress . . . ." Phillips v. United States,
312 U.S. 246,
Repeatedly emphasized during the congressional debates on 2282 were the
heavy pecuniary costs of the unforeseen and debilitating interruptions in
the administration of federal law which could be wrought by a single judge's
order, and the great burdens entailed in coping with harassing actions brought
one after another to challenge the operation of an entire statutory scheme,
wherever jurisdiction over government officials could be acquired, until
a judge was ultimately found who would grant the desired injunction. 81
Cong. Rec. 479-481, 2142-2143 (1937).
|||The present action, which in form was for declaratory relief and which
in its agreed substance did not contemplate injunctive relief, involves
none of the dangers to which Congress was addressing itself. The relief
sought and the order entered affected an Act of Congress in a totally non-coercive
fashion. There was no interdiction of the operation at large of the statute.
It was declared unconstitutional, but without even an injunctive sanction
against the application of the statute by the Government to Mendoza-Martinez.
Pending review in the Court of Appeals and in this Court, the Government
has been free to continue to apply the statute. That being the case, there
is here no conflict with the purpose of Congress to provide for the convocation
of a three-judge court whenever the operation of a statutory scheme may
be immediately disrupted before a final judicial determination of the validity
of the trial court's order can be obtained. Thus there was no reason whatever
in this case to invoke the special and extraordinary procedure of a three-judge
court. Compare Schneider v. Rusk, post, p. 224, decided this day.
|||III. THE COLLATERAL-ESTOPPEL ISSUE.
|||Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to
the suggestion of this Court earlier that year, charged that "the government
of the United States
has admitted the fact of his United States citizenship by virtue of the
indictment and judgment of conviction [in 1947 for draft evasion] . . .
and is therefore collaterally estopped now to deny such citizenship . .
. ." The District Court rejected this assertion. Mendoza-Martinez renews
it here as an alternative ground for upholding the judgment entered below
"That the plaintiff is now, and ever since the date of his birth has been,
a national and citizen of the United States."
192 F.Supp., at 3.
|||We too reject Mendoza-Martinez' contention on this point. His argument,
stated more fully, is as follows: The Selective Training and Service Act
of 1940 applies only to citizens and resident aliens. Both the indictment
and the judgment spoke in terms of his having remained in Mexico for the
entire period from November 15, 1942, until November 1, 1946, when he returned
to this country.*fn7
For the period from September 27, 1944, when 401 (j) became effective, until
November 1, 1946, he could not have been in violation of our draft laws
unless he remained a citizen of the United States, since the draft laws
do not apply to nonresident aliens. Therefore, he concludes, the Government
must be taken to have admitted that he did not lose his citizenship by remaining
outside the country after September 27, 1944, because it charged him with
draft evasion for that period as well as for the period preceding that date.
|||It is true that "as to those matters in issue or points controverted,
upon the determination of which the finding or verdict was rendered," Cromwell
v. County of Sac,
94 U.S. 351,
353, the findings in a prior criminal proceeding may estop a party in a
subsequent civil action, Emich Motors Corp. v. General Motors Corp.,
340 U.S. 558,
568-569, and that the United States may be estopped to deny even an erroneous
prior determination of status, United States v. Moser,
266 U.S. 236.
However, Mendoza-Martinez' citizenship status was not at issue in his trial
for draft evasion. Putting aside the fact that he pleaded guilty, which
in itself may support the conclusion that his citizenship status was not
litigated and thereby without more preclude his assertion of estoppel,*fn8
the basic flaw in his argument is in the assertion that he was charged with
a continuing violation of the draft laws while he remained in Mexico, particularly
after September 27, 1944, the date on which 401 (j) became effective. He
was in fact charged with a violation "on or about November 15, 1942," because
he "did knowingly evade service . . . in that he did knowingly depart from
the United States and go to a foreign country, namely: Mexico, for the purpose
of evading service . . . ." This constituted the alleged violation. The
additional language that he "did there remain until on or about November
1, 1946," was merely surplusage in relation to the substantive offense,
although it might, for example, serve a purpose in relation to problems
connected with the tolling of the statute of limitations. No language appears
charging the elements of violation -- knowledge and purpose to evade --
in connection with it. The only crime charged is what happened "on or about
November 15, 1942," and conviction thereon, even if it had entailed a finding
as to Mendoza-Martinez' citizenship on that date,*fn9
in nowise estopped the Government with reference to his status after September
|||The trial court's judgment was worded no differently. Mendoza-Martinez
was convicted of:
|||"Having on or about November 15th 1942, knowingly departed from the United
States to Mexico, for the purpose of evading service in the land or naval
forces of the United States and having remained there until on or about
November 1st 1946."
|||Again, the language relating to the time during which Mendoza-Martinez
remained in Mexico was not tied to the words stating knowledge and purpose
to evade service. Thus, the conviction entailed no actual or necessary finding
about Mendoza-Martinez' citizenship status between September 27, 1944, and
November 1, 1946, and the Government was not estopped from denying his citizenship
in the present proceedings.
IV. THE CONSTITUTIONAL ISSUES.
|||A. Basic Principles.
|||Since the validity of an Act of Congress is involved, we begin our analysis
mindful that the function we are now discharging is "the gravest and most
delicate duty that this Court is called upon to perform." Blodgett v. Holden,
275 U.S. 142,
148 (separate opinion of Holmes, J.). This responsibility we here fulfill
with all respect for the powers of Congress, but with recognition of the
transcendent status of our Constitution.
|||We deal with the contending constitutional arguments in the context of
certain basic and sometimes conflicting principles. Citizenship is a most
precious right. It is expressly guaranteed by the Fourteenth Amendment to
the Constitution, which speaks in the most positive terms.*fn10
The Constitution is silent about the permissibility of involuntary forfeiture
of citizenship rights.*fn11
While it confirms citizenship rights, plainly there are imperative obligations
of citizenship, performance of which Congress in the exercise of its powers
may constitutionally exact. One of the most important of these is to serve
the country in time of war and national emergency. The powers of Congress
to require military service for the common defense are broad and far-reaching,*fn12
for while the Constitution protects against invasions of individual rights,
it is not a suicide pact. Similarly, Congress has broad power under the
Necessary and Proper Clause to enact legislation for the regulation of foreign
affairs. Latitude in this area is necessary to ensure effectuation of this
indispensable function of government.*fn13
|||These principles, stemming on the one hand from the precious nature of
the constitutionally guaranteed rights of citizenship, and on the other
from the powers of Congress and the related obligations of individual citizens,
are urged upon us by the parties here. The Government argues that 401 (j)
and 349 (a)(10) are valid as an exercise of Congress' power over foreign
affairs, of its war power, and of the inherent sovereignty of the Government.
Appellees urge the provisions' invalidity as not within any of the powers
asserted, and as imposing a cruel and unusual punishment.
|||We recognize at the outset that we are confronted here with an issue of
the utmost import. Deprivation of citizenship -- particularly American citizenship,
which is "one of the most valuable rights in the world today," Report of
the President's Commission on Immigration and Naturalization (1953), 235
-- has grave practical consequences. An expatriate who, like Cort, had no
other nationality becomes a stateless person -- a person who not only has
no rights as an American citizen, but no membership in any national entity
whatsoever. "Such individuals as do not possess any nationality enjoy, in
general, no protection whatever, and if they are aggrieved by a State they
have no means of redress, since there is no State which is competent to
take up their case. As far as the Law of Nations
is concerned, there is, apart from restraints of morality or obligations
expressly laid down by treaty . . . no restriction whatever to cause a State
to abstain from maltreating to any extent such stateless individuals." 1
Oppenheim, International Law (8th ed., Lauterpacht, 1955), 291, at 640.*fn14
The calamity is "not the loss of specific rights, then, but the loss of
a community willing and able to guarantee any rights whatsoever . . . ."
Arendt, The Origins of Totalitarianism (1951), 294. The stateless person
may end up shunted from nation to nation, there being no one obligated or
willing to receive him,*fn15
or, as in Court's case, may receive the dubious sanctuary of a Communist
regime lacking the essential liberties precious to American citizenship.*fn16
B. The Perez and Trop Cases.
|||The basic principles here involved, the gravity of the issue, and the
arguments bearing upon Congress' power to forfeit citizenship were considered
by the Court in relation to different provisions of the Nationality Act
of 1940 in two cases decided on the same day less than five years ago: Perez
356 U.S. 44,
and Trop v. Dulles,
356 U.S. 86.
|||In Perez, 401 (e), which imposes loss of nationality for "voting in a
political election in a foreign state or participating in an election or
plebiscite to determine the sovereignty over foreign territory," was upheld
by a closely divided Court as a constitutional exercise of Congress' power
to regulate foreign affairs. The Court reasoned that since withdrawal of
citizenship of Americans who vote in foreign elections is reasonably calculated
to effect the avoidance of embarrassment in the conduct of foreign relations,
such withdrawal is within the power of Congress, acting under the Necessary
and Proper Clause. Since the Court sustained the application of 401 (e)
to denationalize Perez, it did not have to deal with 401 (j), upon which
the Government had also relied, and it expressly declined to rule on the
constitutionality of that section,
356 U.S., at 62.
There were three opinions written in dissent. The principal one, that of
THE CHIEF JUSTICE, recognized "that citizenship may not only be voluntarily
renounced through exercise of the right of expatriation but also by other
actions in derogation of undivided allegiance to this country," id., at
68, but concluded that "the mere act of voting in a foreign election, however,
without regard to the circumstances attending
the participation, is not sufficient to show a voluntary abandonment of
citizenship," id., at 78.
|||In Trop, 401 (g), forfeiting the citizenship of any American who is guilty
of "deserting the military or naval forces of the United States in time
of war, provided he is convicted thereof by court martial and as the result
of such conviction is dismissed or dishonorably discharged . . . ," was
declared unconstitutional. There was no opinion of the Court. THE CHIEF
JUSTICE wrote an opinion for four members of the Court, concluding that
401 (g) was invalid for the same reason that he had urged as to 401 (e)
in his dissent in Perez, and that it was also invalid as a cruel and unusual
punishment imposed in violation of the Eighth Amendment. JUSTICE BRENNAN
conceded that it is "paradoxical to justify as constitutional the expatriation
of the citizen who has committed no crime by voting in a Mexican political
election, yet find unconstitutional a statute which provides for the expatriation
of a soldier guilty of the very serious crime of desertion in time of war,"
356 U.S., at 105.
Notwithstanding, he concurred because "the requisite rational relation between
this statute and the war power does not appear . . . ," id., at 114. Justice
Frankfurter, joined by three other Justices, dissented on the ground that
401 (g) did not impose punishment at all, let alone cruel and unusual punishment,
and was within the war powers of Congress.
|||C. Sections 401 (j) and 349 (a)(10) as Punishment.
|||The present cases present for decision the constitutionality of a section
not passed upon in either Perez or Trop -- 401 (j), added in 1944, and its
successor and present counterpart, 349 (a)(10) of the Immigration and Nationality
Act of 1952. We have come to the conclusion that there is a basic question
in the present cases,
the answer to which obviates a choice here between the powers of Congress
and the constitutional guarantee of citizenship. That issue is whether the
statutes here, which automatically -- without prior court or administrative
proceedings -- impose forfeiture of citizenship, are essentially penal in
character, and consequently have deprived the appellees of their citizenship
without due process of law and without according them the rights guaranteed
by the Fifth and Sixth Amendments, including notice, confrontation, compulsory
process for obtaining witnesses, trial by jury, and assistance of counsel.
This issue was not relevant in Trop because, in contrast to 401 (j) and
349 (a)(10), 401 (g) required conviction by court-martial for desertion
before forfeiture of citizenship could be inflicted. In Perez the contention
that 401 (e) was penal in character was impliedly rejected by the Court's
holding, based on legislative history totally different from that underlying
401 (j) and 349 (a)(10), that voting in a political election in a foreign
state "is regulable by Congress under its power to deal with foreign affairs."
356 U.S., at 59.
Compare Dent v. West Virginia,
129 U.S. 114;
Hawker v. New York,
170 U.S. 189;
Flemming v. Nestor,
363 U.S. 603.
Indeed, in Trop THE CHIEF JUSTICE observed that "Section 401 (j) decrees
loss of citizenship without providing any semblance of procedural due process
whereby the guilt of the draft evader may be determined before the sanction
is imposed . . . ,"
356 U.S., at 94,
and Justice Frankfurter in dissent alluded to the due process overtones
of the requirement in 401 (g) of prior conviction for desertion by court-martial,
id., at 116-117.
|||It is fundamental that the great powers of Congress to conduct war and
to regulate the Nation's foreign relations are subject to the constitutional
requirements of due
process.*fn17 The imperative
necessity for safeguarding these rights to procedural due process under
the gravest of emergencies has existed throughout our constitutional history,
for it is then, under the pressing exigencies of crisis, that there is the
greatest temptation to dispense with fundamental constitutional guarantees
which, it is feared, will inhibit governmental action. "The Constitution
of the United States is a law for rulers and people, equally in war and
in peace, and covers with the shield of its protection all classes of men,
at all times, and under all circumstances." Ex parte Milligan,
4 Wall. 2,
120-121.*fn18 The rights
guaranteed by the Fifth and Sixth Amendments are "preserved to every one
accused of crime who is not attached to the army, or navy, or militia in
actual service." Id., at 123.*fn19
"If society is disturbed by civil commotion -- if the passions of men are
aroused and the restraints of law weakened, if not disregarded -- these
safeguards need, and should receive, the watchful care of those entrusted
with the guardianship of the Constitution and laws. In no other way can
we transmit to posterity unimpaired the blessings of liberty, consecrated
by the sacrifices of the Revolution." Id., at 124.
|||We hold 401 (j) and 349 (a)(10) invalid because in them Congress has plainly
employed the sanction of deprivation of nationality as a punishment -- for
the offense of leaving or remaining outside the country to evade military
service -- without affording the procedural safeguards guaranteed by the
Fifth and Sixth Amendments.*fn20
Our forefathers "intended to safeguard the people of this country from punishment
without trial by duly constituted courts. . . . And even the courts to which
this important function was entrusted were commanded to stay their hands
until and unless certain tested safeguards were observed. An accused in
court must be tried by an impartial jury, has a right to be represented
by counsel, [and] must be clearly informed of the charge against him . .
. ." United States v. Lovett,
328 U.S. 303,
317. See also Chambers v. Florida,
309 U.S. 227,
|||As the Government concedes, 401 (j) and 349 (a)(10) automatically strip
an American of his citizenship, with concomitant deprivation "of all that
makes life worth living," Ng Fung Ho v. White,
259 U.S. 276,
284-285, whenever a citizen departs from or remains outside the jurisdiction
of this country for the purpose of evading his military obligations. Conviction
for draft evasion, as
Cort's case illustrates, is not prerequisite to the operation of this sanction.*fn21
Independently of prosecution, forfeiture of citizenship attaches when the
statutory set of facts develops. It is argued that the availability after
the fact of administrative and judicial proceedings, including the machinery
the Court approved last Term in Rusk v. Cort,
369 U.S. 367,
to contest the validity of the sanction meets the measure of due process.
But the legislative history and judicial expression with respect to every
congressional enactment relating to the provisions in question dating back
to 1865 establish that forfeiture of citizenship is a penalty for the act
of leaving or staying outside the country to avoid the draft. This being
so, the Fifth and Sixth Amendments mandate that this punishment cannot be
imposed without a prior criminal trial and all its incidents, including
indictment, notice, confrontation, jury trial, assistance of counsel, and
compulsory process for obtaining witnesses. If the sanction these sections
impose is punishment, and it plainly is, the procedural safeguards required
as incidents of a criminal prosecution are lacking. We need go no further.
The punitive nature of the sanction here is evident under the tests traditionally
applied to determine whether an Act of Congress is penal or regulatory in
character, even though in other cases this problem has been extremely difficult
and elusive of solution. Whether the sanction involves an affirmative disability
or restraint,*fn22 whether
it has historically been regarded as a punishment,*fn23
whether it comes into play only on a finding of scienter,*fn24
whether its operation will promote the traditional aims of punishment --
retribution and deterrence,*fn25
whether the behavior to which it applies is already a crime,*fn26
whether an alternative purpose to which it may
rationally be connected is assignable for it,*fn27
and whether it appears excessive in relation to the alternative purpose
assigned*fn28 are all relevant
to the inquiry, and may often point in differing directions. Absent conclusive
evidence of congressional intent as to the penal nature of a statute, these
factors must be considered in relation to the statute on its face. Here,
although we are convinced that application of these criteria to the face
of the statutes supports the conclusion that they are punitive, a detailed
examination along such lines is unnecessary, because the objective manifestations
of congressional purpose indicate conclusively that the provisions in question
can only be interpreted as punitive.*fn29
A study of the history of the predecessor of 401 (j), which "is worth a
volume of logic," New York Trust Co. v. Eisner,
256 U.S. 345,
349, coupled with a reading of Congress' reasons for enacting 401 (j), compels
a conclusion that the statute's primary function is to serve as an additional
a special category of draft evader.*fn30
Compare Trop v. Dulles, supra,
356 U.S., at 107-110
(BRENNAN, J., concurring).
|||1. The Predecessor Statute and Judicial Construction.
|||The subsections here in question have their origin in part of a Civil
War "Act to amend the several Acts heretofore passed to provide for the
Enrolling and Calling out the National Forces, and for other Purposes."
Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with
deserters and draft evaders, was in terms punitive, providing that "in addition
to the other lawful penalties of the crime of desertion," persons guilty
thereof "shall be deemed and taken to have voluntarily relinquished and
forfeited their rights of citizenship and their rights to become citizens
. . . and all persons who, being duly enrolled, shall depart the jurisdiction
of the district in which he is enrolled, or go beyond the limits of the
United States, with intent to avoid any draft into the
military or naval service, duly ordered, shall be liable to the penalties
of this section."*fn31
|||The debates in Congress in 1865 confirm that the use of punitive language
in 21 was not accidental. The section as originally proposed inflicted loss
of rights of citizenship only on deserters. Senator Morrill of Maine proposed
amending the section to cover persons who leave the country to avoid the
draft, stating, "I do not see why the same principle should not extend to
those who leave the country to avoid the draft." Cong. Globe, 38th Cong.,
2d Sess. 642 (1865). This "same principle" was punitive, because Senator
Morrill was also worried that insofar as the section as originally proposed
"provides for a penalty" to be imposed on persons who had theretofore deserted,
there was question "whether it is not an ex post facto law, whether it is
not fixing a penalty for an act already done." Ibid. Senator Johnson of
Maryland attempted to allay Senator Morrill's concern by explaining that
|||"the penalties are not imposed upon those who have deserted, if nothing
else occurs, but only on those who have deserted and who shall not return
within sixty days. The crime for which the punishment is inflicted is made
up of the fact of an antecedent desertion, and a failure to return within
sixty days. It is clearly within the power of Congress." Ibid.
|||This explanation satisfied the Senate sufficiently so that they accepted
the section, with Senator Morrill's amendment, although Senator Hendricks
of Indiana made one last speech in an effort to convince his colleagues
of the bill's ex post facto nature and, even apart from that, of the excessiveness
of the punishment, particularly as applied to draft evaders:
|||"It seems to me to be very clear that this section proposes to punish
desertions which have already
taken place, with a penalty which the law does not already prescribe. In
other words it is an ex post facto criminal law which I think we cannot
pass. . . . One of the penalties known very well to the criminal laws of
the country is the denial of the right of suffrage and the right to hold
offices of trust or profit.
|||"It seems to me this objection to the section is very clear, but I desire
to suggest further that this section punishes desertions that may hereafter
take place in the same manner, and it is known to Senators that one desertion
recently created is not reporting when notified of the draft. . . . I submit
to Senators that it is a horrible thing to deprive a man of his citizenship,
of that which is his pride and honor, from the mere fact that he has been
unable to report upon the day specified after being notified that he has
been drafted. Certainly the punishment for desertion is severe enough. It
extends now from the denial of pay up to death; that entire compass is given
for the punishment of this offense. Why add this other? It cannot do any
good." Id., at 643.
|||In the House, the motion of New York's Representative Townsend to strike
the section as a "despotic measure" which would "have the effect to deprive
fifty thousand, and I do not know but one hundred thousand, people of their
rights and privileges," was met by the argument of Representative Schenck
of Ohio, the Chairman of the Military Committee, that "Here is a penalty
that is lawful, wise, proper, and that should be added to the other lawful
penalties that now exist against deserters." Id., at 1155. After Representative
Wilson of Iowa proposed an amendment, later accepted and placed in the enacted
version of the bill, extending the draft-evasion portion to apply to persons
leaving "the district in which they are enrolled" in addition to those leaving
the country, Representative J. C. Allen of Illinois raised the ex post facto
objection to the section as a whole. Id., at 1155-1156. Representative Schenck
answered him much as Senator Johnson had replied in the Senate:
|||"The gentleman from Illinois [Mr. J. C. ALLEN] misapprehends this section
from not having looked carefully, as I think, into its language. He thinks
it retroactive. It is not so. It does not provide for punishing those who
have deserted in their character of deserters acquired by having gone before
the passage of the law, but of those only, who, being deserters, shall not
return and report themselves for duty within sixty days. If the gentleman
looks at the language of the section, he will find that we have carefully
avoided making it retroactive. We give those who have deserted their country
and their flag sixty days for repentance and return.
|||"Mr. J. C. ALLEN. Will not the infliction of this penalty on those who
have failed to return to the Army be an additional penalty that did not
exist at the time they deserted?
|||"Mr. SCHENCK. Yes, sir.
|||"Mr. J. C. ALLEN. Does not that make the law retroactive?
|||"Mr. SCHENCK. They are deserters now. We take them up in their present
status and character as deserters, and punish them for continuing in that
character. The gentleman refers to lawyers here. I believe he is a good
lawyer himself. Does he not know that if a man steals a horse and runs away
with it to the next county it is a continual act of larceny until he delivers
up the horse?" Id., at 1156.
|||The significance of these debates is, as these excerpts plainly show,
that while there was a difference in both Houses as to whether the statute
would be an ex post facto law, there was agreement among all the speakers
sides of that issue, as well as on both sides of the merits of the bill
generally, that deprivation of rights of citizenship for leaving the country
to evade the draft was a "penalty" and "punishment" for a "crime" and an
"offense" and a violation of a "criminal law."
|||A number of state court judicial decisions rendered shortly after the
Civil War lend impressive support to the conclusion that the predecessor
of 401 (j) and 349 (a)(10), 21 of the 1865 statute, was a criminal statute
imposing an additional punishment for desertion and draft evasion. The first
and most important of these was Huber v. Reily, 53 Pa. 112 (1866), in which,
as in most of the cases which followed,*fn32
the plaintiff had brought an action against the election judge of his home
township, alleging that the defendant had refused to receive his ballot
on the ground that plaintiff was a deserter and thereby disenfranchised
under 21, and that such refusal was wrongful because 21 was unconstitutional.
The asserted grounds of invalidity were that 21 was an ex post facto law,
that it was an attempt by Congress to regulate suffrage in the States and
therefore outside Congress' sphere of power, and that it proposed to inflict
pains and penalties without a trial and conviction, and was therefore prohibited
by the Bill of Rights. In an opinion by Justice Strong, later a member of
this Court, the Pennsylvania Supreme Court first characterized the statute
in a way which compelled discussion of the asserted grounds of unconstitutionality:
|||"The Act of Congress is highly penal. It imposes forfeiture of citizenship
and deprivation of the rights of citizenship as penalties for the commission
of a crime. Its avowed purpose is to add to the penalties which the law
had previously affixed to the offence
of desertion from the military or naval service of the United States, and
it denominates the additional sanctions provided as penalties." 53 Pa.,
|||It then answered the ex post facto argument as it had been answered on
the floor of Congress, that the offense could as well be in the continued
refusal to render service as in the original desertion. The second contention
was met with the statement that "The enactment operates upon an individual
offender, punishes him for violation of the Federal law by deprivation of
his citizenship of the United States, but it leaves each state to determine
for itself whether such an individual may be a voter. It does no more than
increase the penalties of the law upon the commission of crime." Id., at
116. "The third objection," the court continued, "would be a very grave
one if the act does in reality impose pains and penalties before and without
a conviction by due process of law." Id., at 116-117. The court then summarized
the protections guaranteed by the Fifth and Sixth Amendments, and concluded
that it was not consistent with these rights to empower a "judge of elections
or a board of election officers constituted under state laws . . . to adjudge
the guilt or innocence of an alleged violator of the laws of the United
States." Id., at 117. However, the court decided that since the penalty
contemplated by 21 "is added to what the law had previously enacted to be
the penalty of desertion, as imprisonment is sometimes added to punishment
by fine," it must have been intended "that it should be incurred in the
same way, and imposed by the same tribunal that was authorized to impose
the other penalties for the offence." Id., at 119. "The forfeiture which
it prescribes, like all other penalties for desertion, must be adjudged
to the convicted person, after trial by a court-martial, and sentence approved.
For the conviction and sentence of such a court there can be no substitute."
Id., at 120.
(Emphasis in original.) Accordingly, since the plaintiff had not been so
convicted, the court held that he was not disenfranchised.
|||Subsequent state court decisions in the post-Civil War period followed
Huber v. Reily, both in result and reasoning. State v. Symonds, 57 Me. 148
(1869); Severance v. Healey, 50 N. H. 448 (1870); Gotcheus v. Matheson,
58 Barb. (N. Y.) 152 (1870); McCafferty v. Guyer, 59 Pa. 109 (1868).
|||Ultimately and significantly, in Kurtz v. Moffitt,
115 U.S. 487,
a case dealing with the question whether a city police officer had the power
to arrest a military deserter, this Court recognized both the nature of
the sanction imposed by 21 and the attendant necessity of procedural safeguards,
approvingly citing the above decisions:
|||"The provisions of 1996 and 1998, which re-enact the act of March 3, 1865,
ch. 79, 21, 13 Stat. 490, and subject every person deserting the military
service of the United States to additional penalties, namely, forfeiture
of all rights of citizenship, and disqualification to hold any office of
trust or profit, can only take effect upon conviction by a court martial,
as was clearly shown by Mr. Justice Strong, when a judge of the Supreme
Court of Pennsylvania, in Huber v. Reily, 53 Penn. St. 112, and has been
uniformly held by the civil courts as well as by the military authorities.
State v. Symonds, 57 Maine, 148; Severance v. Healey, 50 N. H. 448; Goetcheus
v. Matthewson, 61 N. Y. 420; Winthrop's Digest of Judge Advocate General's
115 U.S., at 501-502.
|||Section 21 remained on the books unchanged, except for being distributed
in the Revised Statutes as 1996 and 1998, until 1912, when Congress re-enacted
it with an amendment making it inapplicable to peacetime violations
and giving the President power to mitigate or remit punishment previously
imposed on peacetime violators, Act of August 22, 1912, 37 Stat. 356. The
legislative history of that amendment is also instructive for our present
inquiry. The discussion in both Houses had reference only to the penalties
as operative on deserters, no doubt because there was no peacetime draft
to evade, but since the 1865 statute dealt without distinction with both
desertion and leaving the jurisdiction to evade, there is no reason to suppose
the discussion quoted below to be any less applicable to the latter type
of misconduct. The House Committee Report, H. R. Rep. No. 335, 62d Cong.,
2d Sess. (1912), which was quoted in its entirety in the Senate Committee
Report, S. Rep. No. 910, 62d Cong., 2d Sess. 3-6 (1912), stated that "In
addition to the service penalty imposed by the court-martial, the law, as
it now stands, imposes the further and most drastic punishment of loss of
rights of citizenship . . . . There are in the United States to-day thousands
of men who are literally men without a country and their numbers will be
constantly added to until the drastic civil-war measure which adds this
heavy penalty to an already severe punishment imposed by military law, is
repealed." H. R. Rep. No. 335, supra, at 2. In reporting the bill out of
the Committee on Naval Affairs, Representative Roberts of Massachusetts,
its author, stated that "the bill now under consideration is intended to
remove one of the harshest penalties that can be imposed upon a man for
an offense, to wit, the loss of rights of citizenship. . . . Such a drastic
penalty was entirely too severe to be imposed upon an American citizen in
time of peace." He detailed the penalties meted out by court-martial for
desertion, and then referred to the "additional penalty of loss of citizenship,"
which, he concluded, is "a barbarous punishment." 48 Cong. Rec. 2903 (1912).
Senator Bristow of Kansas, a member of his chamber's Committee on Military
also referred in discussing the bill to the forfeiture of rights of citizenship
as a "penalty," and said that there is no reason why a peacetime offender
should be "punished so severely." 48 Cong. Rec. 9542 (1912).
|||A somewhat similar amendment had been passed by both Houses of Congress
in 1908 but vetoed by the President.*fn33
The House Committee Report on that occasion, H. R. Rep. No. 1340, 60th Cong.,
1st Sess. (1908), consisted mainly of a letter from the Secretary of the
Navy to the Congress, and of his annual report. In both documents he referred
to loss of citizenship as a "punishment," and as one of the "penalties"
for desertion. Representative Roberts spoke in 1908, as he was to do once
more in 1912, of the "enormity of the punishment" and the "horrible punishment,"
and said, "Conviction itself under
the existing law forfeits citizenship. That is the monstrosity of the law."
43 Cong. Rec. 111 (1908). The entire discussion, id., at 110-114, was based
on the premise that loss of citizenship is a punishment for desertion, the
point at issue, as in 1912, being whether it was too severe a punishment
for peacetime imposition. At one point Representative Roberts said, "Loss
of citizenship is a punishment," to which Representative Hull of Iowa replied,
"Certainly." Id., at 114.
|||Section 504 of the Nationality Act of 1940, 54 Stat. 1172, repealed the
portion of the 1865 statute which dealt with flight from the jurisdiction
to avoid the draft. However, in connection with the provision governing
loss of citizenship for desertion, which was enacted as 401 (g) and declared
unconstitutional in Trop v. Dulles, supra, the President's committee of
advisers reported that the provisions of the 1865 Act had been "distinctly
penal in character," and concluded that "They must, therefore, be construed
strictly, and the penalties take effect only upon conviction by a court
of the Nationality Laws of the United States, 76th Cong., 1st Sess. 68 (Comm.
Print 1939). Section 401 (g) was therefore worded so that loss of nationality
could only occur upon conviction for desertion by court-martial. When, however,
401 (j) was enacted in 1944, no such procedural safeguards were built in.
See Trop v. Dulles, supra, at 93-94. Thus, whereas for JUSTICE BRENNAN concurring
in Trop the conclusion that expatriation under 401 (g) was punishment was
"but the beginning of critical inquiry,"
356 U.S., at 110,
a similar conclusion with reference to 401 (j) and 349 (a)(10) is sufficient
to sustain the holding that they are unconstitutional.
. The Present Statutes.
|||The immediate legislative history of 401 (j) confirms the conclusion,
based upon study of the earlier legislative and judicial history,*fn35
that it is punitive in nature. The language of the section was, to begin
with, quite obviously patterned on that of its predecessor, an understandable
fact since the draft of the bill was submitted to the Congress by Attorney
General Biddle along with a letter to Chairman Russell of the Senate Immigration
Committee, in which the Attorney General referred for precedent to the 1912
reenactment of the 1865 statute. This letter, which was the impetus for
the enactment of the bill, was quoted in full text in support of it in both
the House and Senate Committee Reports, H. R. Rep. No. 1229, 78th Cong.,
2d Sess. 2-3 (1944); S. Rep. No. 1075, 78th Cong., 2d Sess. 2 (1944), and
is set out in the margin.*fn36
Senate Report stated that it "fully explains the purpose of the bill." S.
Rep. No. 1075, supra, at 1. The letter was couched entirely in terms of
an argument that citizens who had left the country in order to escape military
should be dealt with, and that loss of citizenship was a proper way to deal
with them. There was no reference to the societal good that would be wrought
by the legislation, nor to any improvement in soldier morale or in the conduct
of war generally that would be gained by the passage of the statute. The
House Committee Report and the sponsors of the bill endorsed it on the same
basis. The report referred for support to the fact that the FBI files showed
"over 800 draft delinquents" in the El Paso area alone who had crossed to
Mexico to evade the draft. H. R. Rep. No. 1229, supra, at 2. The obvious
inference to be drawn from the report, the example it contained, and the
lack of mention of any broader purpose is that Congress was concerned solely
with inflicting effective retribution upon this class of draft evaders and,
no doubt, on others similarly situated. Thus, on the floor of the House,
Representative Dickstein of New York, the Chairman of the House Committee
on Immigration and Naturalization, explained the bill solely as a means
of dealing with "draft dodgers who left this country knowing that there
was a possibility that they might be drafted in this war and that they might
have to serve in the armed forces . . . ." He implied that the bill was
necessary to frustrate their "idea of evading military service and of returning
after the war is over, and taking their old places
in our society." 90 Cong. Rec. 3261 (1944). Senator Russell, who was manager
of the bill as well as Chairman of the Senate Immigration Committee, explained
it in similar terms:
|||"Certainly those who, having enjoyed the advantages of living in the United
States, were unwilling to serve their country or subject themselves to the
Selective Service Act, should be penalized in some measure. . . . Any American
citizen who is convicted of violating the Selective Service Act loses his
citizenship. This bill would merely impose a similar penalty on those who
are not subject to the jurisdiction of our courts, the penalty being the
same as would result in the case of those who are subject to the jurisdiction
of our courts." 90 Cong. Rec. 7629 (1944).*fn37
|||The Senate and House debates, together with Attorney General Biddle's
letter, brought to light no alternative purpose to differentiate the new
statute from its predecessor. Indeed, as indicated, the Attorney General's
letter specifically relied on the predecessor statute as precedent for this
enactment, and both the letter and the debates, consistent with the character
of the predecessor statute, referred to reasons for the enactment of the
bill which were fundamentally retributive in nature. When all of these considerations
are weighed, as they must be, in the context of the incontestibly punitive
nature of the predecessor statute, the conclusion that 401 (j) was itself
dominantly punitive becomes inescapable. The legislative history of 349
(a)(10) of the Immigration and Nationality Act of 1952, which re-enacted
401 (j), adds
nothing to disturb that result.*fn38
Our conclusion from the legislative and judicial history is, therefore,
that Congress in these sections decreed an additional punishment for the
crime of draft avoidance in the special category of cases wherein the evader
leaves the country. It cannot do this without providing the safeguards which
must attend a criminal prosecution.*fn39
|||It is argued that our holding today will have the unfortunate result of
immunizing the draft evader who has left the United States from having to
suffer any sanction against his conduct, since he must return to this country
before he can be apprehended and tried for his crime. The compelling answer
to this is that the Bill of Rights which we guard so jealously and the procedures
it guarantees are not to be abrogated merely because a guilty man may escape
prosecution or for any other expedient reason. Moreover, the truth is that
even without being expatriated, the evader living abroad is not in a position
to assert the vast majority of his component rights as an American citizen.
If he wishes to assert those rights in any real sense he must return to
this country, and by doing that he will subject himself to prosecution.
while he is outside the country evading prosecution, the United States may,
by proper refusal to exercise its largely discretionary power to afford
him diplomatic protection,*fn40
decline to invoke its sovereign power on his behalf. Since the substantial
benefits of American citizenship only come into play upon return to face
prosecution, the draft evader who wishes to exercise his citizenship rights
will inevitably come home and pay his debt, which within constitutional
limits Congress has the power to define. This is what Mendoza-Martinez did,
what Cort says he is willing to do, and what others have done.*fn41
Thus our holding today does not frustrate the effective handling of the
problem of draft evaders who leave the United States.*fn42
We conclude, for the reasons stated, that 401 (j) and 349 (a)(10) are punitive
and as such cannot constitutionally stand, lacking as they do the procedural
safeguards which the Constitution commands.*fn43
We recognize that draft evasion, particularly in time of war, is a heinous
offense, and should and can be properly punished. Dating back to Magna Carta,
however, it has been an abiding principle governing the lives of civilized
men that "no freeman shall be taken or imprisoned or disseised or outlawed
or exiled . . . without the judgment of his peers or by the law of the land
. . . ."*fn44 What we hold
is only that, in keeping with this cherished tradition, punishment cannot
be imposed "without due process of law." Any lesser holding would ignore
the constitutional mandate upon which our essential liberties depend. Therefore
the judgments of the District Courts in these cases are
|||MR. JUSTICE DOUGLAS and MR. JUSTICE BLACK, while joining the opinion of
the Court, adhere to the views expressed in the dissent of MR. JUSTICE DOUGLAS,
in which MR. JUSTICE BLACK joined, in Perez v. Brownell,
356 U.S. 44,
79, that Congress has no power to deprive a person of the citizenship granted
the native-born by 1, cl. 1, of the Fourteenth Amendment.
192 F.Supp. 1
and 187 F.Supp. 683, affirmed.
MR. JUSTICE BRENNAN, concurring.
|||I join the Court's opinion because I fully agree with the Court's conclusion
that Congress has here attempted to employ expatriation as a penal sanction
in respect of behavior deemed inimical to an objective whose pursuit is
within its assigned powers, and with the reasoning by which that conclusion
is reached. So too, I agree that Congress is constitutionally debarred from
so employing the drastic, the truly terrifying remedy of expatriation, certainly
where no attempt has been made to apply the full panoply of protective safeguards
which the Constitution requires as a condition of imposing penal sanctions.
However, I deem it appropriate to elaborate somewhat the considerations
which impel me to agree with the Court.
|||This Court has never granted the existence in Congress of the power to
expatriate except where its exercise was intrinsically and peculiarly appropriate
to the solution of serious problems inevitably implicating nationality.
We have recognized the entanglements which may stem from dual allegiance,
and have twice sustained statutes which provided for loss of American citizenship
upon the deliberate assumption of a foreign attachment. Mackenzie v. Hare,
239 U.S. 299;
Savorgnan v. United States,
338 U.S. 491.
We have recognized that participation by American nationals in the internal
politics of foreign states could dangerously prejudice our diplomacy, and
have allowed the use of expatriation as a uniquely potent corrective which
precludes recriminations by disowning, at the moment of his provocative
act, him who might otherwise be taken as our spokesman or our operative.
Perez v. Brownell,
356 U.S. 44.
The instant cases do not require me to resolve some felt doubts of the correctness
of Perez , which I joined. For the Court has never held that expatriation
was to be found in Congress'
arsenal of common sanctions, available for no higher purpose than to curb
undesirable conduct, to exact retribution for it, and to stigmatize it.
|||In Trop v. Dulles,
356 U.S. 86,
we had before us 401 (g) of the Nationality Act of 1940, which imposed loss
of American nationality following conviction of deserting the armed forces
in time of war. We held that statute unconstitutional. Three of my Brethren
joined in the opinion of THE CHIEF JUSTICE, who analyzed the case in terms
equally applicable to the cases at bar. That plurality opinion in Trop noted
that the congressional power to which expatriation under 401 (g) was said
to be relevant was the "war power." It concluded that expatriation under
401 (g) could have no value in furtherance of the war power except as a
sanction, to deter or punish desertion; that expatriation so employed was
"punishment" within the meaning of the Eighth Amendment; and that such punishment
was unconstitutional because cruel and unusual.*fn1
|||My concurring views in Trop, separately expressed, were akin to those
of the plurality. I shared the view that expatriation could have been employed
in 401 (g) only as a sanction, and I considered this an insufficient predicate
for its use -- which I believed allowable only where some affirmative and
unique relationship to policy was apparent. My premise was the simple and
fundamental one that legislation so profoundly destructive of individual
rights must keep within the limits
of palpable reason and rest upon some modicum of discoverable necessity.
I was unable to conclude that 401 (g) met that elementary test. It was evident
that recognizable achievement of legitimate congressional purposes through
the expatriation device was at best remote; and that far more promising
alternative methods existed and had, in fact, been employed.
|||My Brother STEWART attempts to distinguish Trop along two fronts: He argues
that expatriation is not here employed as "punishment" in the constitutional
sense so that the reasoning of the Trop plurality has no application; and
he argues that, the question of punishment aside, expatriation as here employed
is a uniquely necessary device not falling within the rationale of my views
separately expressed in Trop.
|||My Brother STEWART discerns in 401 (j)*fn2
an affirmative instrument of policy and not simply a sanction which must
be classed as "punishment." The policy objective is thought to be the maintenance
of troop morale; a threat to that objective is thought to be the spectacle
of persons escaping a military-service obligation by flight; and expatriation
of such persons is sustained as a demonstrative counter to that threat.
To my mind that would be "punishment" in the purest sense; it would be naked
vengeance. Such an exaction of retribution would not lose that quality because
it was undertaken to maintain morale. Indeed, it is only the significance
of expatriation as retribution which could render it effective to boost
morale -- the purpose which, to the dissent, removes expatriation as here
used from the realm of the punitive. I do not perceive how expatriation
so employed would differ analytically from the stocks or the rack. Because
such devices may be calculated to shore up the convictions of the law-abiding
by demonstrating that the wicked will not go unscathed, they would not,
by the dissent's view, be punitive or, presumably, reachable by the Eighth
Amendment.*fn3 I cannot agree
to any such proposition, and I see no escape from the conclusion that 401
(j), before us today, is identical in purpose to 401 (g) and is quite as
"punitive" as was that statute, which we condemned in Trop.
|||The dissent finds other distinctions between this case and Trop, quite
apart from its untenable position that 401 (j) is not punitive. It is said
that flight from the country to escape the draft, in contrast with desertion,
could never be a mere technical offense equivocal in its implications for
the loyalty of the offender. But the unshakable fear of physical stress
or harm, the intellectual or moral aversion to combat, and the mental aberration
which may result in flight are no more inconsistent with underlying loyalty
than was Trop's unauthorized abandonment of his post.*fn4
Again, it is suggested that the
element of cumulation of punishments which helped expose the futility of
expatriation in Trop is missing here, because 401 (j), unlike 401 (g), becomes
operative without a prior conviction, and applies only in the case of flight
beyond our borders. But the Mendoza-Martinez case, in its collateral estoppel
issue, prominently displays what would in any case be obvious -- that expatriation
under 401 (j) is cumulative with criminal sanctions for draft evasion, for
those sanctions apply to fugitives equally as much as to sedentary violators.*fn5
|||Nor can Trop rationally be distinguished on the ground that the application
of 401 (j) only to fugitives proves that it was designed to fill a void
necessarily left by the ordinary criminal draft-evasion sanctions. The point,
as I understand it, is that the ordinary sanctions cannot be brought to
bear against a fugitive who declines to come home; but he can be expatriated
while he remains abroad, without having to be brought before a tribunal
and formally proceeded against. The special virtue of expatriation, it appears,
is that it may be accomplished in absentia.
Aside from the denial of procedural due process, which the Court rightly
finds in the scheme, the surface appeal of the argument vanishes upon closer
|||It simply is not true that expatriation provides an instrumentality specially
necessary for imposing the congressional will upon fugitive draft evaders.
Our statutes now provide severe criminal sanctions for the behavior in question.
The fugitive can return only at the cost of suffering these punishments;
the only way to avoid them is to remain away. As to any draft delinquent
for whom the prospect of this dilemma would not itself pose a recognizable,
formidable deterrent, I fail to see how the addition of expatriation could
enhance the effect at all.*fn6
Nor can expatriation affect the fugitive who will not return to be punished
-- for whom it is thought to be specially designed. For that individual
has, ex hypothesi, determined on his own to stay away and so cannot be affected
by the withdrawal of his right to return. The sting of the measure is felt
only by those like Mendoza-Martinez, who have already returned and been
punished, and those like Cort, who desire to return and be punished -- those,
in other words, as to whom expatriation is patently cumulative with other
sanctions. As to the unregenerate fugitive whom it is particularly thought
to reach, expatriation is but a display of congressional displeasure. I
cannot agree that it is within the power of Congress so to express its displeasure
with those who will
not return as to destroy the rights and the status of those who have demonstrated
their underlying attachment to this country by coming home.
|||It is apparent, then, that today's cases are governed by Trop no matter
which of the two controlling opinions is consulted. Expatriation is here
employed as "punishment," cruel and unusual here if it was there. Nor has
expatriation as employed in these cases any more rational or necessary a
connection with the war power than it had in Trop.
|||MR. JUSTICE STEWART's dissent would sustain 401 (j) as a permissible exercise
of the "war power." The appellants in these cases, on the other hand, place
their main reliance on the "foreign affairs power." The dissent summarizes
the appellants' arguments under this heading but does not purport to pass
on them. Because of my conviction that 401 (j) is unconstitutional no matter
what congressional power is invoked in its support, I find it necessary
to deal with the foreign affairs arguments advanced by the appellants.
|||Initially, I note that the legislative history as expounded by the dissent
fails to reveal that Congress was mindful of any foreign affairs problem
to be corrected by the statute. The primary purpose seems to me to have
been retributive, the secondary purpose deterrent; and even the morale-boosting
purpose discerned by the dissent has nothing to do with foreign affairs.
While the obvious fact that Congress was not consciously pursuing any foreign
affairs objective may not necessarily preclude reliance on that power as
a ground of constitutionality, it does render such reliance initially questionable.
|||Proceeding to the appellants' arguments, one encounters first the suggestion
that a fugitive draft evader "can easily cause international complications"
while he remains
an American citizen, because the United States cannot exercise control over
him while he is on foreign soil.
|||Such a "problem," obviously, exists equally with respect to any fugitive
from American justice, and cannot be thought confined to draft evaders.
Yet it is only fugitive draft evaders who are expatriated. It is, therefore,
impossible to agree that Congress was acting on any such inherently unlikely
premise as that expatriation was necessary so as to avoid responsibility
for those described by 401 (j).
|||But, contend the appellants, 401 (j) is designed to prevent embroilments
as well as embarrassments. During wartime, it is argued, our Government
would very likely feel impelled to demand of foreign havens the return of
our fugitive draft evaders; and such a demand might seriously offend a "host"
country, leading to embroilment. The transparent weakness of this argument
-- its manifest inconsistency -- must be immediately apparent. Surely the
United States need not disable itself from making injudicious demands in
order to restrain itself from doing so. The argument rests on the possibility
that there may be an urgent need to secure a fugitive's return. If that
is so, a demand must be made with its attendant risk of embroilment. If
expatriating the fugitive makes a demand impossible, it also forever defeats
the objective -- his return -- which would have impelled the demand in the
first place. If recapturing fugitives may ever be urgently necessary, it
is obvious that automatic expatriation could only be directly opposed to
our interest -- which requires that the Government be free to choose whether
or not to make the demand, in light of all the attendant circumstances.
|||The appellants have still another argument. It is that whereas the Government
is under an obligation to seek the return of the fugitive as long as he
remains a citizen, by terminating citizenship "Congress has eliminated at
the outset any further claim that this country would have to the services
of these individuals, and has removed all basis for further demands upon
them . . . ." This simply is not so. Expatriation may have no effect on
a continuing military-service obligation.*fn7
And it is incontrovertible that the power to punish the initial draft-evasion
offense continues although citizenship has meanwhile become forfeit. The
Government has so argued in addressing itself to the collateral estoppel
issue in Mendoza-Martinez. I cannot understand how any obligation to apprehend
can be other than coextensive with the power to punish. The Government cannot
have it both ways in the same case.
|||The appellants urge that, wholly apart from any explicit congressional
power, 401 (j) may be sustained as an exercise of a power inherent in United
States sovereignty. My Brethren who would uphold the statute have not adverted
to this possibility except, as I shall point out, as they have adopted in
passing certain related arguments.
|||Preliminarily, it is difficult to see what is resolved by the assertion
that sovereignty implies a power to expatriate. That proposition may be
admitted and yet have no bearing on the problem facing the Court.
|||For, under our Constitution, only a delimited portion of sovereignty has
been assigned to the Government of
which Congress is the legislative arm. To say that there inheres in United
States sovereignty the power to sever the tie of citizenship does not answer
the inquiry into whether that power has been granted to Congress. Any argument
that it has been so delegated which eschews reference to the constitutional
text must, it appears, make its appeal to some sense of the inevitable fitness
of things. The contentions here fall far short of any such standard.
|||It is too simple to suggest that it is fitting that Congress be empowered
either to extinguish the citizenship of one who refuses to perform the "ultimate
duty" of rising to the Government's defense in time of crisis. I pause to
note that for this Court to lend any credence whatever to such a criterion
-- as the dissent would, see pp. 214-215, infra -- is fraught with the most
far-reaching consequences. For if Congress now should declare that a refusal
to pay taxes, to do jury duty, to testify, to vote, is no less an abnegation
of ultimate duty -- or an implied renunciation of allegiance -- than a refusal
to perform military service, I am unable to perceive how this Court, on
the dissent's view, could presume to gainsay such a judgment. But the argument
is not saved even by a willingness to accept these consequences. There really
is no way to distinguish between the several failures of a citizen's duty
I have just enumerated, or to explain why evasion of military service should
be visited with this specially harsh consequence, except to recognize that
the latter defection is palpably more provocative than the others. But,
as I have argued in another context, when conduct is singled out of a class
for specially adverse treatment simply because it is specially provocative,
there is no escaping the conclusion that punishment is being administered.
See Flemming v. Nestor,
363 U.S. 603,
635-640 (dissenting opinion). Pursuit of the "ultimate duty" concept, then,
simply reaffirms my conviction that this case is indistinguishable from
The appellants, however, argue that it is fitting that Congress be empowered
to extinguish the citizenship of one who not only refuses to perform his
duty, but who also "repudiates his wider obligation as a citizen to submit
to this country's jurisdiction and authority" by fleeing the country in
order to escape that duty. It is, once again, difficult to see how this
flight-repudiation theory can be confined to draft evasion. Every fugitive
from United States justice repudiates American authority over him in equal
measure. If the difference lies in the quality of the act of draft evasion,
then we are back once again to punishment.
|||The appellants assert that "[a] government which cannot exert force to
compel a citizen to perform his lawful [Government's emphasis] duty is,
to that extent, not sovereign as to him." The apparent corollary is that
congressionally imposed expatriation is, under such circumstances, in effect
declaratory of a change in status which has already occurred. But the Government
is far from conceding its lack of authority over a fugitive draft evader.
It informs us that "the federal government has the power to order our citizens
abroad to return, for any lawful purpose," citing Blackmer v. United States,
284 U.S. 421.
And, in any event, the argument proves far too much, for it would justify
expatriation of any American abroad for any reason who would, equally with
persons covered by 401 (j), be outside our Government's power to compel
the performance of duty.
|||MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins, dissenting.
|||I agree with and join in Parts I, II, III, and IV of my Brother STEWART's
opinion, leading to the conclusion that 401 (j) of the Nationality Act of
1940, applicable in No. 2 (Mendoza), is constitutional. I also agree with
his conclusion that, for the same reasons, the substantive
provisions of 349 (a)(10) of the 1952 Act, applicable in No. 3 (Cort), are
constitutional. I disagree, however, with his view that the evidentiary
presumption contained in 349 (a)(10) is unconstitutional. I am content to
state my reasons in summary form.
|||1. As I read the opinion below in the Cort case I do not think the District
Court relied on the 349 (a)(10) presumption.*fn1a
This view is fortified by several considerations: (i) the constitutionality
of the presumption was attacked in Cort's complaint and was briefed by both
sides in the District Court; (ii) the text of the presumption itself was
set forth in the opinion of the District Court (
187 F.Supp., at 684)
at only a page or two before the extract quoted in the margin (note 1);
and (iii) in these
circumstances it is difficult to believe that the lower court, composed
of three experienced judges, either inadvertently ignored the presumption
or upheld its validity sub silentio. The more likely conclusion is that
finding the evidence sufficient without the aid of the presumption, the
lower court saw no need for reaching a second constitutional issue.
|||So viewing the District Court's opinion, I think the evidence was quite
sufficient under the "clear, unequivocal, and convincing" standard of Schneiderman
v. United States,
320 U.S. 118,
135, to support the finding below that Cort had remained abroad for the
purpose of evading military service.*fn2a
. In addition, I see nothing constitutionally wrong with this presumption
either on its face or as related to this case. Similar presumptions have
been consistently sustained in criminal statutes, where the standard of
proof is certainly no less stringent than in denationalization cases. See,
e. g., Yee Hem v. United States,
268 U.S. 178;
Casey v. United States,
276 U.S. 413;
Hawes v. Georgia,
258 U.S. 1;
cf. Fong Yue Ting v. United States,
149 U.S. 698.
As regards the requirement that there must be a "rational connection between
the fact proved and the ultimate fact presumed," Tot v. United States,
319 U.S. 463,
467, this presumption is surely a far cry
from that held constitutionally invalid in the Tot case.*fn3a
And since we are concerned here only with the presumption as applied in
this instance (if indeed it was in fact applied below or must now be resorted
to in this Court), it is no answer to suggest that in other instances application
of the presumption might be unconstitutional.
|||Thus whether or not the 349 (a)(10) presumption is involved in the Cort
case, I believe that the order of denationalization there, as well as in
the Mendoza case, should be upheld.*fn4a
|||MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, dissenting.
|||The Court's opinion is lengthy, but its thesis is simple: (1) The withdrawal
of citizenship which these statutes provide is "punishment." (2) Punishment
cannot constitutionally be imposed except after a criminal trial and conviction.
(3) The statutes are therefore unconstitutional.
As with all syllogisms, the conclusion is inescapable if the premises are
correct. But I cannot agree with the Court's major premise -- that the divestiture
of citizenship which these statutes prescribe is punishment in the constitutional
sense of that term.*fn1
|||Despite the broad sweep of some of the language of its opinion, the Court
as I understand it does not hold that involuntary deprivation of citizenship
is inherently and always a penal sanction -- requiring the safeguards of
a criminal trial. Such a determination would overrule at least three decisive
precedents in this Court.
|||Nearly 50 years ago the Court held that Congress had constitutional power
to denationalize a native-born citizen who married a foreigner but continued
to reside here. Mackenzie v. Hare,
239 U.S. 299.
The Court there explicitly rejected the argument "that the citizenship of
plaintiff was an incident to her birth in the United States, and, under
the Constitution and laws of the United States, it became a right, privilege
and immunity which could not be taken away from her except as a punishment
for crime or by her voluntary expatriation."
239 U.S., at 308.
The power of Congress to denationalize a native-born citizen, without a
criminal trial, was reaffirmed in Savorgnan v. United States,
338 U.S. 491.
And less than five years ago, in Perez v. Brownell,
356 U.S. 44,
the Court again upheld this congressional power in an opinion which unambiguously
rejected the notion, advanced in
that case by the dissenters,*fn2
that the Mackenzie and Savorgnan decisions stand only for the proposition
that citizenship may be voluntarily relinquished or abandoned either expressly
or by conduct. In short, it has been established for almost 50 years that
Congress under some circumstances may, without providing for a criminal
trial, make expatriation the consequence of the voluntary conduct of a United
States citizen, irrespective of the citizen's subjective intention to renounce
his nationality, and irrespective too of his awareness that denationalization
will be the result of his conduct.*fn3
|||The position taken by the Court today is simply that, unlike the statutes
involved in Mackenzie, Savorgnan and Perez, the statutes at issue in the
present case employ deprivation of citizenship as a penal sanction. In support
of this position, the Court devotes many pages of its opinion to a discussion
of a quite different law, enacted in 1865, amended in 1912, and repealed
in 1940. That law*fn4 provided
for forfeiture of the "rights of citizenship" as an additional penalty for
deserters from the armed forces and for enrolled draftees who departed from
their district or from the United States "to avoid any draft into the military
or naval service, duly ordered . . . ." That statute, as the Court correctly
says, "was in terms
punitive," and I agree with the Court that the statute's legislative history,
as well as subsequent judicial decisions construing it, makes it clear that
the law was punitive -- imposing additional punishment upon those convicted
of either of the offenses mentioned.*fn5
|||In these cases, however, we have before us statutes which were enacted
in 1944 and 1952, respectively. In construing these statutes, I think nothing
is to be gained from the legislative history of a quite different law enacted
by a quite different Congress in 1865, nor from the reports of still another
Congress which amended that law in 1912. Unlike the 1865 law, the legislation
at issue in the cases before us is not "in terms punitive." And there is
nothing in the history of this legislation which persuades me that these
statutes, though not in terms penal, nonetheless embody a purpose of the
Congresses which enacted them to impose criminal punishment without the
safeguards of a criminal trial.
|||Unlike the two sections of the Nationality Act of 1940 which were in issue
in Perez v. Brownell*fn6
and Trop v. Dulles,*fn7 401
(j) did not have its genesis in the Cabinet Committee's draft code which
President Roosevelt submitted to Congress in 1938.*fn8
Indeed, 401 (j) was the product of a totally different environment -- the
experience of a nation engaged in a global war.
|||On February 16, 1944, Attorney General Biddle addressed a letter to the
Chairman of the Senate Immigration
Committee, calling attention to circumstances which had arisen after the
institution of the draft in World War II, and suggesting the legislation
which subsequently became 401 (j). The Attorney General's letter stated
|||"I invite your attention to the desirability of enacting legislation which
would provide (1) for the expatriation of citizens of the United States
who in time of war or during a national emergency leave the United States
or remain outside thereof for the purpose of evading service in the armed
forces of the United States and (2) for the exclusion from the United States
of aliens who leave this country for the above-mentioned purpose.
|||"Under existing law a national of the United States, whether by birth
or by naturalization, becomes expatriated by operation of law if he (1)
obtains naturalization in a foreign state; (2) takes an oath of allegiance
to a foreign country; (3) serves in the armed forces of a foreign state
if he thereby acquires the nationality of such foreign state; (4) accepts
employment under a foreign state for which only nationals of such state
are eligible; (5) votes in a political election in a foreign state or participates
in an election or plebiscite to determine the sovereignty over foreign territory;
(6) makes a formal renunciation of nationality before a diplomatic or consular
officer of the United States in a foreign state; (7) deserts from the armed
forces of the United States in time of war and is convicted thereof by a
court martial; or (8) is convicted of treason (U. S. C., title 8, sec. 801).
Machinery is provided whereby a person who is denied any right or privilege
of citizenship on the ground that he has become expatriated may secure a
judicial determination of his status; and if he is outside of the United
States he is entitled to a
certificate of identity which permits him to enter and remain in the United
States until his status has been determined by the courts (Nationality Act
of 1940, sec. 503; U. S. C., title 8, sec. 903).
|||"The files of this Department disclose that at the present time there
are many citizens of the United States who have left this country for the
purpose of escaping service in the armed forces. While such persons are
liable to prosecution for violation of the Selective Service and Training
Act of 1940, if and when they return to this country, it would seem proper
that in addition they should lose their United States citizenship. Persons
who are unwilling to perform their duty to their country and abandon it
during its time of need are much less worthy of citizenship than are persons
who become expatriated on any of the existing grounds.
|||"Accordingly, I recommend the enactment of legislation which would provide
(1) for the expatriation of citizens of the United States who in time of
war or during a national emergency leave the United States or remain outside
thereof for the purpose of evading service in the armed forces of the United
States and (2) for the exclusion from the United States of aliens who leave
this country for that purpose. Any person who may be deemed to have become
expatriated by operation of the foregoing provision would be entitled to
have his status determined by the courts pursuant to the above-mentioned
section of the Nationality Act of 1940."*fn9
|||The bill was passed unanimously by both the House and the Senate, and
became Public Law No. 431 of the Seventy-eighth Congress. Neither the committee
reports nor the limited debate on the measure in Congress
adds any substantial gloss to the legislative action.*fn10
And the legislative history of 349 (a)(10) of the Immigration and Nationality
Act of 1952, the statute directly involved in the second of the two cases
now before us,
gives no additional illumination as to the purpose of the Eighty-second
Congress, since the substantive provisions of that statute were but a recodification
of 401 (j) of the 1940 Act.*fn11
|||The question of whether or not a statute is punitive ultimately depends
upon whether the disability it imposes is for the purpose of vengeance or
deterrence, or whether the disability is but an incident to some broader
regulatory objective. See Cummings v. Missouri,
4 Wall. 277,
320, 322; United States v. Lovett,
328 U.S. 303,
country or remained outside of it for the purpose of avoiding the draft.
Congress can reasonably be understood to have been saying that those who
flee the country for such express purposes do more than simply disobey the
law and avoid the imposition of criminal sanctions. They disassociate themselves
entirely from their nation, seeking refuge from their wartime obligations
under the aegis of another sovereign. Congress could reasonably have concluded
that the existence of such a group, who voluntarily and demonstrably put
aside their United States citizenship "for the duration," could have an
extremely adverse effect upon the morale and thus the war effort not only
of the armed forces, but of the millions enlisted in the defense of their
nation on the civilian front. During the consideration of 401 (j) in Congress
there were repeated references to the expectation that fugitive draft evaders
then living abroad would return to this country after the war to resume
citizenship and to enjoy the fruits of victory. The effect upon wartime
morale of the known existence of such a group, while perhaps not precisely
measurable in terms of impaired military efficiency, could obviously have
been considered substantial. Denationalization of this class of voluntary
expatriates was a rational way of dealing with this problem by removing
its visible cause. In light of this broader purpose, I cannot find, as the
Court does, that 401 (j) was motivated primarily by the desire to wreak
vengeance upon those individuals who fled the country to avoid military
service. Rather, the statute seems to me precisely the same kind of regulatory
measure, rational and efficacious, which this Court upheld against similar
objections in Perez v. Brownell, supra.*fn13
|||For the reasons stated, I cannot find in the terms of these statutes or
in their legislative history anything close to the "clearest proof" that
the basic congressional purpose was to impose punishment. But that alone
does not answer the constitutional inquiry in these cases. As with any other
exercise of congressional power, a law which imposes deprivation of citizenship,
to be constitutionally valid, must bear a rational relationship to an affirmative
power possessed by Congress under the Constitution. The appellants submit
that in enacting this legislation, Congress could rationally have been drawing
on any one of three sources of recognized constitutional power: the implied
power to enact legislation for the effective conduct of foreign affairs;
the express power to wage war, to raise armies, and to provide for the common
defense; and the inherent attributes of sovereignty.
|||The appellants argue that this legislation, like the statutory provision
sustained in Perez v. Brownell, supra, has a direct relationship to foreign
affairs. They point out that international complications could arise if
this country attempted to effect the return of citizen draft evaders by
requests to a foreign sovereign which that nation might be unwilling to
grant. The appellants insist that the possibility of international embroilments
resulting from problems caused by fugitive draft evaders is not fanciful,
pointing to the background of international incidents preceding the War
of 1812, and the long history, later in the nineteenth century, of this
country's involvement with other nations over the asserted liability of
our naturalized citizens to military obligations imposed by their native
of those who leave or remain
away from the United States with draft evasion as their purpose, the appellants
say, might reasonably be attributed to a congressional belief that this
was the only practical way to nip these potential international problems
in the bud. Compare Perez v. Brownell,
356 U.S., at 60;
Trop v. Dulles,
356 U.S., at 106
|||In the view I take of this case, it is unnecessary to pursue further an
inquiry as to whether the power to regulate foreign affairs could justify
denationalization for the conduct in question. For I think it apparent that
Congress in enacting the statute was drawing upon another power, broad and
|||A basic purpose of the Constitution was to "provide for the common defence."
To that end, the Framers expressly conferred upon Congress a compendium
of powers which have come to be called the "war power."*fn15
Responsive to the scope and magnitude of ultimate national need, the war
power is "the power to wage war successfully." See Charles Evans Hughes,
War Powers under the Constitution, 42 A. B. A. Rep. 232, 238.
|||It seems to me evident that Congress was drawing upon this power when
it enacted the legislation before us. To be sure, the underlying purpose
of this legislation can
hardly be refined to the point of isolating one single, precise objective.
The desire to end a potential drain upon this country's military manpower
was clearly present in the minds of the legislators and would itself have
constituted a purpose having sufficient rational nexus to the exercise of
the war power. Indeed, there is no more fundamental aspect of this broad
power than the building and maintaining of armed forces sufficient for the
common defense. Selective Draft Law Cases,
245 U.S. 366;
see Falbo v. United States,
320 U.S. 549.
But, in any event, the war power clearly supports the objective of removing
a corrosive influence upon the morale of a nation at war. As the Court said
in Hirabayashi v. United States,
320 U.S. 81,
93, the war power "extends to every matter and activity so related to war
as substantially to affect its conduct and progress. The power is not restricted
to the winning of victories in the field and the repulse of enemy forces.
It embraces every phase of the national defense, including the protection
of war materials and the members of the armed forces from injury and from
the dangers which attend the rise, prosecution and progress of war." See
Lichter v. United States,
334 U.S. 742.
|||This legislation is thus quite different from the statute held invalid
in Trop v. Dulles, supra. In that case there were not five members of the
Court who were able to find the "requisite rational relation" between the
war power of Congress and 401 (g) of the 1940 Act imposing denationalization
upon wartime deserters from the armed forces. As the concurring opinion
pointed out, the statute was "not limited in its effects to those who desert
in a foreign country or who flee to another land."
356 U.S., at 107.
Indeed, "The Solicitor General acknowledged that forfeiture of citizenship
would have occurred if the entire incident had transpired in this country."
356 U.S., at 92.
It was emphasized that conduct far short of disloyalty could technically
constitute the military offense
356 U.S., at 112,
113, and that the harshness of denationalization for conduct so potentially
equivocal was "an important consideration where the asserted power to expatriate
has only a slight or tenuous relation to the granted power."
356 U.S., at 110.
|||The legislation now before us, on the other hand, is by its terms completely
inapplicable to those guilty of draft evasion who have remained in the United
States; it is exclusively aimed at those, whether or not ever criminally
convicted, who have gone to or remained in another land to escape the duty
of military service. Moreover, the conduct which the legislation reaches
could never be equivocal in nature, but is always and clearly a "refusal
to perform this ultimate duty of American citizenship." Trop v. Dulles,
356 U.S., at 112
|||There is one more point to be made as to the substantive provisions of
the legislation before us in these cases. Previous decisions have suggested
that congressional exercise of the power to expatriate may be subject to
a further constitutional restriction -- a limitation upon the kind of activity
which may be made the basis of denationalization. Withdrawal of citizenship
is a drastic measure. Moreover, the power to expatriate endows government
with authority to define and to limit the society which it represents and
to which it is responsible.
|||This Court has never held that Congress' power to expatriate may be used
unsparingly in every area in which it has general power to act. Our previous
decisions upholding involuntary denationalization all involved conduct inconsistent
with undiluted allegiance to this country. But I think the legislation at
issue in these cases comes so clearly within the compass of those decisions
as to make unnecessary in this case an inquiry as to
what the ultimate limitation upon the expatriation power may be.
|||The conduct to which this legislation applies, involving not only the
attribute of flight or absence from this country in time of war or national
emergency, but flight or absence for the express purpose of evading the
duty of helping to defend this country, amounts to an unequivocal and conspicuous
manifestation of nonallegiance, whether considered objectively or subjectively.
Ours is a tradition of the citizen soldier. As this Court has said, "The
very conception of a just government and its duty to the citizen includes
the reciprocal obligation of the citizen to render military service in case
of need and the right to compel it." Selective Draft Law Cases,
245 U.S. 366,
at 378. It is hardly an improvident exercise of constitutional power for
Congress to disown those who have disowned this Nation in time of ultimate
|||For the reasons stated, I believe the substantive provisions of 401 (j)
of the 1940 Act and of 349 (a)(10) of the 1952 Act are constitutionally
valid. In addition to its substantive provisions, however, 349 (a)(10) declares:
|||"For the purposes of this paragraph failure to comply with any provision
of any compulsory service laws of the United States shall raise the presumption
that the departure from or absence from the United States was for the purpose
of evading or avoiding training and service in the military, air, or naval
forces of the United States."
|||I think the evidentiary presumption which the statute creates is clearly
invalid, and that it fatally infected the administrative determination that
Joseph Henry Cort had lost his citizenship.
The District Court did not mention this statutory presumption, and it is,
therefore, impossible to know how much the court relied upon it, if at all.
Indeed, the District Court's attention in this case was oriented primarily
towards the issue of its jurisdiction and the basic issue of the constitutionality
of the substantive provisions of 349 (a)(10). In view of its holding that
349 (a)(10) is unconstitutional, the court understandably did not give exhaustive
attention to the factual issues presented, devoting but a single short paragraph
to the question of whether Cort's conduct had brought him within the statute.
187 F.Supp., at 686.
|||But it is clear that the final reviewing agency in the State Department
relied heavily upon this presumption in determining that Cort had lost his
citizenship. The Board of Review on the Loss of Nationality, in its memorandum
affirming the initial administrative determination that Cort had lost his
citizenship, stated that "by failing to comply with the notices sent to
him by his local board, Dr. Cort brought upon himself the presumption mentioned
in Section 349 (a)(10), that his continued absence from the United States
was for the purpose of evading or avoiding training and service in the military,
air, or naval forces of the United States. Even if the Board should consider
that the presumption could be overcome by showing that a person remained
abroad for a purpose other than to avoid the military service, the evidence
in Dr. Cort's case, taken as a whole, does not show that he remained abroad
for a purpose other than to avoid being drafted." (Emphasis added.) One
of the Board's specific findings was "that Dr. Cort has not overcome the
presumption raised in the last sentence of Section 349 (a)(10) of the Immigration
and Nationality Act."
|||As was said in Speiser v. Randall,
357 U.S. 513,
at 520-521, "it is commonplace that the outcome of a lawsuit -- and
hence the vindication of legal rights -- depends more often on how the factfinder
appraises the facts than on a disputed construction of a statute or interpretation
of a line of precedents. Thus the procedures by which the facts of the case
are determined assume an importance fully as great as the validity of the
substantive rule of law to be applied. And the more important the rights
at stake the more important must be the procedural safeguards surrounding
|||The presumption created by 349 (a)(10) is wholly at odds with the decisions
of the Court which hold that in cases such as this a heavy burden is upon
the Government to prove an act of expatriation by clear, convincing, and
unequivocal evidence. Gonzales v. Landon,
350 U.S. 920;
Nishikawa v. Dulles,
356 U.S. 129.
This standard commands that "evidentiary ambiguities are not to be resolved
against the citizen." Nishikawa v. Dulles,
356 U.S., at 136.
|||Without pausing to consider whether this evidentiary standard is a constitutional
one, it is clear to me that the statutory presumption here in question is
constitutionally invalid because there is insufficient "rational connection
between the fact proved and the ultimate fact presumed." Tot v. United States,
319 U.S. 463,
467. "A statute creating a presumption that is arbitrary or that operates
to deny a fair opportunity to repel it violates the due process clause of
the Fourteenth Amendment." Manley v. Georgia,
279 U.S. 1,
6. A federal statute which creates such a presumption is no less violative
of Fifth Amendment due process. "Mere legislative fiat may not take the
place of fact in the determination of issues involving life, liberty or
property." Ibid. It is "essential that there shall be some rational connection
between the fact proved and the ultimate fact presumed, and that the inference
of one fact from proof of another shall not be
so unreasonable as to be a purely arbitrary mandate." Mobile, J. & K. C.
R. Co. v. Turnipseed,
219 U.S. 35,
43. Cf. Speiser v. Randall, supra.
|||The failure of a person abroad to comply with notices sent by his draft
board would obviously be relevant evidence in determining whether that person
had gone or remained abroad for the purpose of avoiding military service.
But the statute goes much further. It creates a presumption of an expatriating
act from failure to comply with " any provision of any compulsory service
laws" by a citizen abroad, regardless of the nature of the violations and
regardless of the innocence of his purpose in originally leaving the United
States. The various compulsory service laws of the United States contain
a multitude of provisions, many of them technical or relatively insignificant.
To draw from the violation of a single such provision a presumption of expatriation,
with its solemn consequences, is, I think, to engage in irrationality so
gross as to be constitutionally impermissible.*fn16
|||It is clear from the record in this case that Cort's sole purpose in leaving
the United States in 1951 was to accept a position as a Research Fellow
at the University of Cambridge, England. The record also makes clear that
in 1946 Cort was called up under the Selective Service law, physically examined,
and classified as 4F because of physical disability. The record further
shows that Cort voluntarily registered under the Doctors Draft Act, making
special arrangements with his draft board to do so in advance of the effective
date for registration under the statute, a few days before he left for Europe.
Cort filed an affidavit in which he swore that it was his belief,
in the light of his physical disability, that the induction order which
he received in England was not issued in good faith to secure his military
service, but that its purpose instead was to force him to return to the
United States to be investigated by the House Committee on Un-American Activities
or prosecuted under the Smith Act. He has made repeated efforts to arrange
with Selective Service officials for the fulfillment, albeit belatedly,
of his military obligations, if any, and in 1959 his wife came to the United
States and met with officials of the Selective Service system for that purpose.
The very reason he applied in Prague for a United States passport was, as
he swore, so that he could return to the United States in order to respond
to the indictment for draft evasion now pending against him in Massachusetts
and to fulfill his Selective Service obligations, if any. When Cort applied
in Prague for a passport, the American Consul there, who interviewed him,
stated his opinion in writing that he had no reason to disbelieve Cort's
sworn statement that he had not remained outside the United States to avoid
military service.*fn17 I
mention this evidence as disclosed by the present record only to indicate
why I think a new administrative hearing freed from the weight of the statutory
presumption is in order, not to imply any prejudgment of what I think the
ultimate administrative decision should be.
|||In No. 3, Rusk v. Cort, I would vacate the judgment of the District Court
and remand the case with instructions to declare null and void the certificate
of loss of nationality
issued to Cort by the Secretary of State, so that upon Cort's renewed application
for a passport, an administrative hearing could be had, free of the evidentiary
presumption of 349 (a)(10). In the event that such administrative proceedings
should result in a finding that Cort had lost his United States citizenship,
he would be entitled to a de novo judicial hearing*fn18
in which the Government would have the burden of proving an act of expatriation
by clear, convincing, and unequivocal evidence. Gonzales v. Landon,
350 U.S. 920;
Nishikawa v. Dulles,
356 U.S. 129.
|||In No. 2, Kennedy v. Mendoza-Martinez, I would reverse the judgment of
the District Court.
|||*fn* Together with No.
3, Rusk, Secretary of State, v. Cort, on appeal from the United States District
Court for the District of Columbia, argued October 11, 1961, decided in
part and set for reargument April 2, 1962, reargued December 4-5, 1962.
|||*fn1 In question in No. 2,
Kennedy v. Mendoza-Martinez, is 401 (j) of the Nationality Act of 1940,
added in 1944, 58 Stat. 746, which reads in full as follows:
"A person who is a national of the United States, whether by birth or
naturalization, shall lose his nationality by . . . "(j) Departing from
or remaining outside of the jurisdiction of the United States in time
of war or during a period declared by the President to be a period of
national emergency for the purpose of evading or avoiding training and
service in the land or naval forces of the United States." Its successor
and counterpart, 349 (a)(10) of the Immigration and Nationality Act of
1952, 66 Stat. 163, 267-268, 8 U. S. C. 1481 (a)(10), is challenged in
No. 3, Rusk v. Cort, and reads as follows: "From and after the effective
date of this Act a person who is a national of the United States whether
by birth or naturalization, shall lose his nationality by -- . . . "(10)
departing from or remaining outside of the jurisdiction of the United
States in time of war or during a period declared by the President to
be a period of national emergency for the purpose of evading or avoiding
training and service in the military, air, or naval forces of the United
States. For the purposes of this paragraph failure to comply with any
provision of any compulsory service laws of the United States shall raise
the presumption that the departure from or absence from the United States
was for the purpose of evading or avoiding training and service in the
military, air, or naval forces of the United States."
|||*fn2 54 Stat. 894, as amended,
50 U. S. C. App. (1946 ed.) 311.
|||*fn3 The memorandum opinion
in which the quoted statement appears is unreported, but the findings of
fact, conclusions of law, and judgment of the court are reported at
192 F.Supp. 1.
|||*fn4 64 Stat. 826, 50 U.
S. C. App. 454 et seq.
|||*fn5 62 Stat. 622, 50 U.
S. C. App. 462 (a). The short title of the Act has since 1951 been the Universal
Military Training and Service Act. 65 Stat. 75, 50 U. S. C. App. 451 (a).
|||*fn6 In more detail, 28 U.
S. C. 2281 requires a three-judge court to be convened in order to grant
"An interlocutory or permanent injunction restraining the enforcement, operation
or execution of any State statute by restraining the action of any officer
of such State in the enforcement or execution of such statute or of an order
made by an administrative board or commission acting under State statutes
. . . upon the ground of the unconstitutionality of such statute . . . ."
|||*fn7 The indictment was in
three counts, but Mendoza-Martinez was convicted only on Count I, which
reads in full as follows:
"Defendant FRANK MARTINEZ MENDOZA, a male person within the class made
subject to selective service under the Selective Training and Service
Act of 1940, as amended, registered as required by said act and the regulations
promulgated thereunder and became a registrant of Local Board No. 137,
said board being then and there duly created and acting, under the Selective
Service System established by said act, in Kern County, California, in
the Northern Division of the Southern District of California; and on or
about November 15, 1942, in violation of the provisions of said act and
the regulations promulgated thereunder, the defendant did knowingly evade
service in the land or naval forces of the United States of America in
that he did knowingly depart from the United States and go to a foreign
country, namely: Mexico, for the purpose of evading service in the land
or naval forces of the United States and did there remain until on or
about November 1, 1946." The judgment and commitment, similarly, stated
that Mendoza-Martinez was convicted of: "Having on or about November 15th
1942, knowingly departed from the United States to Mexico, for the purpose
of evading service in the land or naval forces of the United States and
having remained there until on or about November 1st 1946."
|||*fn8 Compare United States
v. International Building Co.,
345 U.S. 502,
in which a prior judicial determination of a tax issue, based on the parties'
stipulation, was refused collateral-estoppel effect in a later action. See
also Restatement, Judgments, 68, comments g, h, i.
|||*fn9 Since the Selective
Training and Service Act of 1940 applied both to citizens and resident aliens,
there was no need to determine in which category Mendoza-Martinez fell "on
or about November 15, 1942." In the present proceeding it is, of course,
not disputed that Mendoza-Martinez was an American citizen on that date.
|||*fn10 U.S. Const., Amend.
XIV, 1: "All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. . . ." This constitutional statement is to be
interpreted in light of pre-existing common-law principles governing citizenship.
United States v. Wong Kim Ark,
169 U.S. 649.
|||*fn11 There is, however,
no disagreement that citizenship may be voluntarily relinquished or abandoned
either expressly or by conduct. See, e. g., Perez v. Brownell,
356 U.S. 44,
48-49; id., at 66-67 (WARREN, C. J., dissenting).
|||*fn12 Ex parte Quirin,
317 U.S. 1,
25-26. See also Home Bldg. & Loan Assn. v. Blaisdell,
290 U.S. 398,
426; Hirabayashi v. United States,
320 U.S. 81,
|||*fn13 Mackenzie v. Hare,
239 U.S. 299,
311-312; Perez v. Brownell, supra,
356 U.S., at 57-58.
|||*fn14 See also Garner,
Uniformity of Law in Respect to Nationality, 19 Am. J. Int'l L. 547 (1925).
|||*fn15 See Seckler-Hudson,
Statelessness: With Special Reference to the United States (1934), 244-253;
Preuss, International Law and Deprivation of Nationality, 23 Geo. L. J.
250 (1934); Holborn, The Legal Status of Political Refugees, 1920-1938,
32 Am. J. Int'l L. 680 (1938). See also Shaughnessy v. United States ex
345 U.S. 206.
|||*fn16 The drastic consequences
of statelessness have led to reaffirmation in the United Nations Universal
Declaration of Human Rights, Article 15, of the right of every individual
to retain a nationality. U. N. Doc. No. A/810, pp. 71, 74 (1948) (adopted
by the U. N. General Assembly on Dec. 10, 1948), reprinted in UNESCO, Human
Rights, A Symposium, App. III (1949). See also A Study on Statelessness,
U. N. Doc. No. E/1112 (1949); Second Report on the Elimination or Reduction
of Statelessness, U. N. Doc. No. A/CN. 4/75 (1953); Weis, The United Nations
Convention on the Reduction of Statelessness, 1961, 11 Int'l & Comp. L.
Q. 1073 (1962), and authorities cited therein.
The evils of statelessness were recognized in the Report of the President's
Commission on Immigration and Naturalization (1953), 241, and the treatise
writers have unanimously disapproved of statutes which denationalize individuals
without regard to whether they have dual nationality. Borchard, Diplomatic
Protection of Citizens Abroad (1916), 262, 334; Fenwick, International
Law (3d ed. 1948), 263; 1 Oppenheim, supra, 313-313a; Gettys, The Law
of Citizenship in the United States (1934), 137-138, 160.
|||*fn17 War powers: United
States v. Cohen Grocery Co.,
255 U.S. 81,
88; Ex parte Endo,
323 U.S. 283,
298-300. Foreign-affairs powers: Kent v. Dulles,
357 U.S. 116,
125-130; Shachtman v. Dulles, 96 U. S. App. D.C. 287,
225 F.2d 938
|||*fn18 See also Hamilton
v. Kentucky Distilleries Co.,
251 U.S. 146,
156; United States v. Cohen Grocery Co., supra; Ex parte Endo, supra.
|||*fn19 Compare Ex parte
105 U.S. 696;
Kahn v. Anderson,
255 U.S. 1,
8-9; Ex parte Quirin,
317 U.S. 1,
|||*fn20 "No person shall
be held to answer for a capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual service in time
of War or public danger; nor shall any person be subject for the same offence
to be twice put in jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation." U. S. Const., Amend.
"In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to
have the Assistance of Counsel for his defence." U.S. Const., Amend. VI.
|||*fn21 Thus the fact that
Mendoza-Martinez was, as it happened, convicted of draft evasion before
deportation proceedings were brought against him is of no relevance. Even
if the incidence of conviction for draft evasion were potentially relevant
to the validity of 401 (j) and 349 (a)(10), the fact is that the "crime"
created by these sections includes an element not necessary to conviction
for violation of 11 of the Selective Training and Service Act of 1940 --
"departing from or remaining outside" the country "for the purpose of evading
or avoiding [military] training and service . . . ." See Comment, Power
of Congress to Effect Involuntary Expatriation, 56 Mich. L. Rev. 1142, 1166
n. 102 (1958). Mendoza-Martinez was thus never tried for any crime the elements
of which are identical with or totally inclusory of those of 401 (j), and
hence was not even arguably accorded the procedural protections we here
|||*fn22 Ex parte Garland,
4 Wall. 333,
377; United States v. Lovett,
328 U.S. 303,
316; Flemming v. Nestor,
363 U.S. 603,
|||*fn23 Cummings v. Missouri,
4 Wall. 277,
320-321; Ex parte Wilson,
114 U.S. 417,
426-429; Mackin v. United States,
117 U.S. 348,
350-352; Wong Wing v. United States,
163 U.S. 228,
237-238. Reference to history here is peculiarly appropriate. Though not
determinative, it supports our holding to note that forfeiture of citizenship
and the related devices of banishment and exile have throughout history
been used as punishment. In ancient Rome, "There were many ways in which
a man might lose his freedom, and with his freedom he necessarily lost his
citizenship also. Thus he might be sold into slavery as an insolvent debtor,
or condemned to the mines for his crimes as servus poenae." Salmond, Citizenship
and Allegiance, 17 L. Q. Rev. 270, 276 (1901). Banishment was a weapon in
the English legal arsenal for centuries, 4 Bl. Comm. * 377, but it was always
"adjudged a harsh punishment even by men who were accustomed to brutality
in the administration of criminal justice." Maxey, Loss of Nationality:
Individual Choice or Government Fiat? 26 Albany L. Rev. 151, 164 (1962).
|||*fn24 Helwig v. United
188 U.S. 605,
610-612; Child Labor Tax Case,
259 U.S. 20,
|||*fn25 United States v.
296 U.S. 287,
295; Trop v. Dulles, supra,
356 U.S., at 96
(opinion of THE CHIEF JUSTICE); id., at 111-112 (BRENNAN, J., concurring).
|||*fn26 Lipke v. Lederer,
259 U.S. 557,
562; United States v. La Franca,
282 U.S. 568,
572-573; United States v. Constantine, supra,
296 U.S., at 295.
|||*fn27 Cummings v. Missouri,
4 Wall., at 319;
Child Labor Tax Case, supra,
259 U.S., at 43;
Lipke v. Lederer, supra,
259 U.S., at 561-562;
United States v. La Franca, supra,
282 U.S., at 572;
Trop v. Dulles, supra,
356 U.S., at 96-97;
Flemming v. Nestor, supra,
363 U.S., at 615,
|||*fn28 Cummings v. Missouri,
4 Wall., at 318;
Helwig v. United States, supra,
188 U.S., at 613;
United States v. Constantine, supra,
296 U.S., at 295;
Rex Trailer Co. v. United States,
350 U.S. 148,
154. But cf. Child Labor Tax Case, supra,
259 U.S., at 41;
Flemming v. Nestor, supra, at 614, 616 and n. 9.
|||*fn29 Compare Cummings
4 Wall. 277,
320, 322; United States v. Lovett,
328 U.S. 303,
308-312; Wormuth, Legislative Disqualifications as Bills of Attainder, 4
Vand. L. Rev. 603, 608 (1951); Note, Punishment: Its Meaning in Relation
to Separation of Power and Substantive Constitutional Restrictions and Its
Use in the Lovett, Trop, Perez, and Speiser Cases, 34 Ind. L. J. 231, 249-253
(1959); Comment, The Communist Control Act of 1954, 64 Yale L. J. 712, 723
|||*fn30 Mackenzie v. Hare,
239 U.S. 299,
and Savorgnan v. United States,
338 U.S. 491,
whatever the proposition for which they stand in connection with the power
of Congress to impose loss of citizenship, compare Perez v. Brownell, supra,
356 U.S., at 51-52,
61-62 (opinion of the Court), with id., at 68-73 (dissenting opinion of
THE CHIEF JUSTICE) and id., at 80 (dissenting opinion of JUSTICE DOUGLAS),
are both plainly distinguishable, as is Perez. The statutes in question
in each of those cases provided loss of citizenship for non-criminal behavior
instead of as an additional sanction attaching to behavior already a crime,
and congressional expression attending their passage lacked the overwhelming
indications of punitive purpose which characterized the enactments here.
Thus, basing decision as we do on the unmistakable penal intent underlying
the statutes presently at issue, nothing in our holding is inconsistent
with these other cases, and there is no occasion for us to pass upon any
question of the power of Congress to act as it did in the statutes involved
in those cases. See note 43, infra.
|||*fn31 The acts of Mendoza-Martinez
and Cort would have been covered by this statute as well as by 401 (j) and
|||*fn32 See p. 176, infra.
|||*fn33 The President's veto
message to the Senate, S. Doc. No. 708, 60th Cong., 2d Sess. (1909), indicates
that his refusal to approve the measure was premised partly on the fact
that it placed the discretion to remit loss of citizenship rights in the
Secretary of the Navy and partly on the President's feeling that it "would
actually encourage hardened offenders to commit a heinous crime against
the flag and the nation." Id., at 2. The former was a fault of the particular
form of the measure: The President was worried that power to pardon could
not constitutionally be vested in anyone other than himself, and he was
further disturbed that placing the power in the Secretary of the Navy would
result in discrimination against army people. The President's second reason,
however, indicates that to him retention of the law as it stood would serve
a purpose always sought to be furthered by the imposition of punishment
for crime -- deterrence. This is borne out by the statements of the President's
advisers in recommending that he veto it. The Secretary of War said, "Loss
of citizenship is a substantial part of the punishment, and doubtless has
a very considerable effect in deterring desertions." Id., at 3. The Secretary
of the Navy stated that "It is believed that the present law regarding the
loss of citizenship as a penalty for deserters from the navy acts as a deterrent
to many." Ibid. The Attorney General indicated his agreement with the Secretary
of the Navy. Id., at 5.
|||*fn34 The advisers' citation
of Huber v. Reily, supra, and Kurtz v. Moffitt, supra, in support of the
quoted statement suggests their awareness that an underlying conviction
is constitutionally mandated.
|||*fn35 The relevance of
such history in analyzing the character of a present enactment is illustrated
by the Court's approach in Helwig v. United States,
188 U.S. 605,
613-619, wherein at considerable length it reviewed and relied upon the
character of previous relevant legislation in determining whether the statute
before it, which imposed an exaction upon importers who undervalued imported
goods for duty purposes, was a penalty.
|||*fn36 "MY DEAR SENATOR:
I invite your attention to the desirability of enacting legislation which
would provide (1) for the expatriation of citizens of the United States
who in time of war or during a national emergency leave the United States
or remain outside thereof for the purpose of evading service in the armed
forces of the United States, and (2) for the exclusion from the United States
of aliens who leave this country for the above mentioned purpose.
"Under existing law a national of the United States, whether by birth
or by naturalization, becomes expatriated by operation of law if he (1)
obtains naturalization in a foreign state; (2) takes an oath of allegiance
to a foreign country; (3) serves in the armed forces of a foreign state
if he thereby acquires the nationality of such foreign state; (4) accepts
employment under a foreign state for which only nationals of such state
are eligible; (5) votes in a political election in a foreign state or
participates in an election or plebiscite to determine the sovereignty
over foreign territory; (6) makes a formal renunciation of nationality
before a diplomatic or consular officer of the United States in a foreign
state; (7) deserts from the armed forces of the United States in time
of war and is convicted thereof by a court martial; or (8) is convicted
of treason (U. S. C., title 8, sec. 801). Machinery is provided whereby
a person who is denied any right or privilege of citizenship on the ground
that he has become expatriated may secure a judicial determination of
his status; and if he is outside of the United States he is entitled to
a certificate of identity which permits him to enter and remain in the
United States until his status has been determined by the courts (Nationality
Act of 1940, sec. 503; U. S. C., title 8, sec. 903). "The files of this
Department disclose that at the present time there are many citizens of
the United States who have left this country for the purpose of escaping
service in the armed forces. While such persons are liable to prosecution
for violation of the Selective Service and Training Act of 1940, if and
when they return to this country, it would seem proper that in addition
they should lose their United States citizenship. Persons who are unwilling
to perform their duty to their country and abandon it during its time
of need are much less worthy of citizenship than are persons who become
expatriated on any of the existing grounds. "Accordingly, I recommend
the enactment of legislation which would provide (1) for the expatriation
of citizens of the United States who in time of war or during a national
emergency leave the United States or remain outside thereof for the purpose
of evading service in the armed forces of the United States, and (2) for
the exclusion from the United States of aliens who leave this country
for that purpose. Any person who may be deemed to have become expatriated
by operation of the foregoing provision, would be entitled to have his
status determined by the courts pursuant to the above-mentioned section
of the Nationality Act of 1940. "Adequate precedent exists for the suggested
legislation in that during the First World War a statute was in force
which provided for the expatriation of any person who went beyond the
limits of the United States with intent to avoid any draft into the military
or naval service (37 Stat. 356). This provision was repealed by section
504 of the Nationality Code of 1940 (54 Stat. 1172; U. S. C., title 8,
sec. 904). "A draft of a proposed bill to effectuate the foregoing purpose
is enclosed herewith. "I have been informed by the Director of the Bureau
of the Budget that the proposed legislation is in accord with the program
of the President. "Sincerely yours, "ATTORNEY GENERAL."
|||*fn37 The Senator's statement
that "Any American citizen who is convicted of violating the Selective Service
Act loses his citizenship" was apparently a reference to 401 (g), and should
accordingly be read in that limited fashion.
|||*fn38 Section 349 (a)(10)
did amend 401 (j) by adding a presumption that failure to comply with any
provision of the compulsory service laws of the United States means that
the departure from or absence from the United States is for the purpose
of avoiding military service. See note 1, supra. Our holding today obviates
any necessity for passing upon this provision.
|||*fn39 Lipke v. Lederer,
259 U.S. 557;
United States v. La Franca,
282 U.S. 568.
See Ex parte Wilson,
114 U.S. 417;
Mackin v. United States,
117 U.S. 348;
Wong Wing v. United States,
163 U.S. 228.
Compare Wieman v. Updegraff,
344 U.S. 183;
Slochower v. Board of Higher Education,
350 U.S. 551,
554, 556; Speiser v. Randall,
357 U.S. 513.
|||*fn40 Borchard, Diplomatic
Protection of Citizens Abroad (1916), 143, 341; see authorities cited in
Klubock, Expatriation -- Its Origin and Meaning, 38 Notre Dame Law. 1, 11,
n. 68 (1962). See also Blackmer v. United States,
284 U.S. 421.
|||*fn41 The astonishing story
of Grover Cleveland Bergdoll is one example. See, e. g., N. Y. Times, Sept.
23, 1927, p. 8, col. 3; May 3, 1935, p. 3, col. 4; Aug. 16, 1935, p. 9,
col. 3; Apr. 11, 1939, p. 6, col. 4; May 26, 1939, p. 1, col. 7; May 30,
1939, p. 36, col. 4; Oct. 6, 1939, p. 1, col. 3; Dec. 5, 1939, p. 3, col.
6; 39 Op. Atty. Gen. 303 (1939). Another example is the recent voluntary
return of Edward M. Gilbert to face trial on charges for which he could
not be extradited. N. Y. Times, Oct 27, 1962, p. 1, col. 1; Oct. 30, 1962,
p. 1, col. 2.
|||*fn42 Moreover, the problem
is, relatively, extremely small. Over 16,000,000 men served in our armed
forces during World War II, and nearly 6,000,000 more served during the
Korean crisis. The World Almanac (1963), 735. Yet between the time of the
enactment of 401 (j) and June 30, 1961, only about 1,750 persons were denationalized
for leaving the country to avoid the draft. Compare figures cited in Klubock,
supra, at 49, taken from Immigration and Naturalization Service Annual Reports,
with figures cited in Comment, The Expatriation Act of 1954, 64 Yale L.
J. 1164, 1165, n. 9 (1955), derived partially from correspondence with the
General Counsel to the Immigration and Naturalization Service.
|||*fn43 The conclusion that
the denationalization sanction, as used in 401 (j) and 349 (a)(10), is a
punishment, obviates any need to determine whether these sections are otherwise
within the powers of Congress. That question would have had to be faced
only if the foregoing inquiry had disclosed reasons other than punitive
for the infliction of loss of nationality in the present context, necessitating
decision whether the sections in question were within the powers of Congress
as a regulatory scheme, or if the punitive forfeiture of citizenship had
been surrounded with appropriate safeguards, obliging decision whether the
sections were within the powers of Congress to apply as a criminal sanction.
|||*fn44 14 Encyclopaedia
Britannica (1957 ed.) 630.
|||*fn1 The plurality opinion
in Trop rested alternatively on the proposition that divestiture of citizenship
can result only from a clear renunciation or transfer of allegiance on the
part of the citizen. However, since this view had been rejected by a majority
of the Court in Perez v. Brownell, supra, the Trop plurality relied principally
on the reasoning outlined in the text.
|||*fn2 My discussion of 401
(j) is equally applicable to its re-enactment as 349 (a)(10) of the Immigration
and Nationality Act of 1952, involved in the Cort case.
|||*fn3 The examples I have
given must, of course, have some deterrent effect upon the conduct for which
they are administered. But this could not, in the dissent's view, render
them punitive. For expatriation as employed in 401 (j) must also, in the
dissent's view, have some deterrent effect upon draft-evading flight, since
if expatriation were not thought by the dissent to be an undesirable consequence,
it could not serve the morale-boosting purpose which is attributed to it.
(But see pp. 192-193 and n. 6, infra.) And, as the dissent recognizes, the
legislative purpose was at least in part a deterrent one.
|||*fn4 The "purpose of evading
or avoiding training and service" specified in 401 (j) seems no graver a
reflection upon loyalty than the "intent to remain away . . . permanently"
or the "intent to avoid hazardous duty or to shirk important service" specified
in the definition of desertion codified in the Uniform Code of Military
Justice, 10 U. S. C. 885. The mere fact that the conduct described in 401
(j) requires the crossing of a frontier does not guarantee that it will
be any less equivocal or more serious than was Trop's desertion. A resident
of Texas might, during time of war, cross the border into Mexico intending
to evade the draft, then change his mind and return the next day. Such conduct
clearly results in expatriation under 401 (j).
|||*fn5 It is obvious that
401 (j) does not reach any conduct not otherwise made criminal by the selective
service laws. 62 Stat. 622, 50 U. S. C. App. 462 (a), in relevant part identical
with Selective Training and Service Act of 1940, 11, under which Mendoza-Martinez
was prosecuted, provides: "Any person who . . . evades or refuses registration
or service in the armed forces or any of the requirements of this title
. . . , or who in any manner shall knowingly fail or neglect or refuse to
perform any duty required of him under or in the execution of this title
. . . , or rules, regulations, or directions made pursuant to this title
. . . , shall, upon conviction in any district court of the United States
of competent jurisdiction, be punished by imprisonment for not more than
five years or a fine of not more than $10,000, or by both such fine and
imprisonment . . . ."
|||*fn6 The prospective fugitive
draft evader must consider that if he flees, either (1) he must eventually
face criminal fine and imprisonment; or (2) he will not be able to return.
To say that prospect (1) will not deter is simply to reject our entire criminal
justice as fruitless so far as deterrence is an object. To say that prospect
(2) will not deter is simply to concede that expatriation will not deter,
either -- except on the strained assumption that withdrawal of diplomatic
protection can work the difference.
|||*fn7 As the Government
forcefully argues on the collateral estoppel point in Mendoza-Martinez,
the selective service requirements apply to resident aliens as well as to
citizens. Section 401 (j), as discussed in Congress and by the appellants
and in MR. JUSTICE STEWART's dissent in these cases, seems to reflect a
special concern with those who flee "for the duration," intending to return
after peace is restored. The Government could well argue that such a fugitive,
although expatriated, is a resident alien subject to compulsory military
|||*fn1a The District Court
said: "When, as here, a citizenship claimant establishes his birth in the
United States the burden is upon the Government to prove by clear, convincing
and unequivocal evidence the act it relies upon to show expatriation. Nishikawa
356 U.S. 129,
133 . . . . We think the Government has met this burden. In 1951 when the
plaintiff went abroad it was for a limited period. On December 29, 1952,
he accepted a position at the Harvard Medical School to begin the latter
part of 1953, and indicated that he had made arrangements for prior transportation
to the United States. His intention to return to this country was steadfast
until he learned shortly after January 31, 1953, that the school authorities
felt that they could not declare him 'essential' for teaching, and that
he probably would be drafted. He wrote them on February 10, 1953, that until
he heard 'something definite' from the draft board he was 'reluctant to
take a decision that may prove to be foolish or premature.' On February
9, June 4, and July 3 in 1953 the draft board sent him notices to report
for physical examination, and thereafter ordered him to report for induction
on September 14, 1953. The plaintiff made no response or compliance but
remained abroad. We are convinced that his purpose was to avoid service
in the armed forces.
"The only question left in this case is the constitutionality of the
law under which the Government maintains that the plaintiff was divested
of his citizenship."
187 F.Supp., at 686.
|||*fn2a Cort was not charged
with going abroad in order to avoid military service, but solely with remaining
abroad to avoid induction. The evidence shows convincingly that Cort's purpose
in remaining abroad, first in England and then in Czechoslovakia, was to
avoid the draft.
On May 29, 1951, Cort left the United States to accept a research fellowship
at the University of Cambridge, England. A few days before his departure
he registered as a "special registrant" under the Doctors Draft Act. On
September 11, 1952, he was classified I-A (medical), available for military
service. Meanwhile, in late 1951 the Government had requested Cort to
surrender his passport for invalidation, except for return to the United
States. He did not do this. On December 29, 1952, Cort accepted, by a
letter sent from England, a teaching position at the Harvard Medical School,
indicating his intention to return to the United States in late June 1953
in order to start work on August 1, 1953. On the same day he also wrote
to the Massachusetts Medical Advisory Committee, stating that he would
begin teaching at Harvard in July 1953, and requesting a draft deferment
on the ground that this "civilian function . . . shall be far more essential
to my country than military service." On January 29, 1953, Harvard authorities
advised the Medical Advisory Committee that they did not regard Cort's
teaching position as essential to medical teaching, and on February 4,
1953, the Committee recommended to the local draft board that Cort be
considered "available for active military service." Between January 31,
1953, and May 29, 1953, the Dean of the Harvard Medical School and Cort
exchanged several letters -- the Dean suggesting that Cort apply for a
commission, Cort expressing surprise that the teaching position was not
considered essential, and that until he had heard from his draft board
he was "reluctant to take a decision that may prove to be foolish or premature."
On February 9, 1953, Cort was informed by his local draft board that his
deferment request had been denied, and he was ordered to report for a
physical examination within 30 days of the receipt of the letter. On June
4, 1953, and on July 3, 1953, he was again sent notices directing him
to report for a physical examination. On August 13, 1953, Cort was ordered
to report for induction on September 14, 1953. Cort did not report notwithstanding
that in the interval, as he concedes, he had received these notices from
his draft board. On August 8, 1954, after his residence permit in England
was not renewed by the British Home Office, Cort took up residence in
Prague, Czechoslovakia, where not until April 7, 1959, did he make any
application for a United States passport. Against this background the
District Court was certainly entitled to discredit Cort's belated efforts,
long after his indictment for draft evasion, to come to terms with the
military authorities, as well as his self-serving statements that he remained
abroad to avoid investigation as to his alleged Communist affiliations
or possible prosecution under the Smith Act.
|||*fn3a A presumption that
one is remaining abroad with a purpose of avoiding military service, arising
from continued sojourn abroad in the face of an uncontroverted call to military
duty, certainly bears no resemblance whatever to the presumption found wanting
in Tot. That presumption was that firearms or ammunition possessed by one
previously convicted of a crime of violence, or who was a fugitive from
justice, were received not only in interstate commerce, but also subsequent
to the enactment of the relevant statute, the presumption arising solely
from a showing that such person had already once been convicted of a crime
of violence and was presently in possession of firearms or ammunition.
|||*fn4a Even on the premises
of my Brother STEWART, the proper course would be to remand the Cort case
to the District Court for a new trial, not, as he proposes, to set aside
the basic denationalization proceeding. This is not a case of the District
Court being called on simply to review for error an administrative record,
but one in which it was required to try the denationalization issue de novo.
In these circumstances there would be no need to have the administrative
proceeding start all over again.
1 The statute involved in No. 2, Kennedy v. Mendoza-Martinez, is 401
(j) of the Nationality Act of 1940, as amended, 58 Stat. 746. The statute
involved in No. 3, Rusk v. Cort, is 349 (a)(10) of the Immigration and
Nationality Act of 1952, 8 U. S. C. 1481 (a)(10). The substantive provisions
of these statutes are practically identical. I agree with the Court that
the jurisdictional objection and the claims of collateral estoppel in
No. 2 are without merit, and that the constitutional validity of both
statutes must therefore be determined. 2
356 U.S., at 62
(dissenting opinion). 3 In Perez v. Brownell, the Court pointed out that
the provision of the Fourteenth Amendment that "All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens
of the United States . . ." does not restrict the power of Congress to
enact denaturalization legislation. It was there stated that "there is
nothing in the terms, the context, the history or the manifest purpose
of the Fourteenth Amendment to warrant drawing from it a restriction upon
the power otherwise possessed by Congress to withdraw citizenship."
356 U.S., at 58,
n. 3. 4 Act of March 3, 1865, 21, 13 Stat. 490.
|||*fn5 This law was the direct
predecessor of 401 (g) of the Nationality Act of 1940, providing the additional
penalty of loss of citizenship upon those convicted by court-martial of
deserting the armed forces in time of war (a provision subsequently invalidated
in Trop v. Dulles,
356 U.S. 86).
356 U.S. 44
(involving 401 (e)).
356 U.S. 86
(involving 401 (g)).
|||*fn8 See Perez v. Brownell,
356 U.S., at 52-57;
Trop v. Dulles,
356 U.S., at 94-95;
Codification of the Nationality Laws of the United States, H. R. Comm. Print,
pt. 1, 76th Cong., 1st Sess. 68-69.
|||*fn9 S. Rep. No. 1075,
78th Cong., 2d Sess. 2.
|||*fn10 The House Committee
Report does contain some particularization of the problem to which the legislation
was addressed: "It is, of course, not known how many citizens or aliens
have left the United States for the purpose of evading military service.
The Department of Justice discovered that in the western district of Texas,
in the vicinity of El Paso alone, there were over 800 draft delinquents
recorded in the local Federal Bureau of Investigation office, born in this
country and, therefore citizens, who had crossed the border into Mexico
for the purpose of evading the draft, but with the expectation of returning
to the United States to resume residence after the war." H. R. Rep. No.
1229, 78th Cong., 2d Sess. 1-2. In explaining the bill to the House Committee
of the Whole, Representative Dickstein, the Chairman of the House Committee
on Immigration, stated: "I would classify this piece of legislation as a
bill to denaturalize and denationalize all draft dodgers who left this country
knowing that there was a possibility that they might be drafted in this
war and that they might have to serve in the armed forces, in the naval
forces, or the marines, and in an effort to get out of such service. We
are all American citizens and our country has a great stake in this war;
nevertheless, we have found hundreds of men who have left this country to
go to certain parts of Mexico and other South American countries with the
idea of evading military service and of returning after the war is over,
and taking their old places in our society." 90 Cong. Rec. 3261.
In explaining the bill to the Senate, Senator Russell, the Chairman of
the Senate Committee on Immigration, stated: "The . . . bill . . . relates
to the class of persons, whether citizens of the United States or aliens,
who departed from the United States in order to avoid service in the armed
forces of the United States under the Selective Service Act. Information
before the committee indicated that on one day several hundred persons
departed from the United States through the city of El Paso, Tex., alone,
in order to avoid service in either the Army or the Navy of the United
States, and to avoid selection under the selective-service law. This bill
provides that any person who is a national of the United States, or an
American citizen, and who in time of national stress departed from the
United States to another country to avoid serving his country, shall be
deprived of his nationality. "It further provides that any alien who is
subject to military service under the terms of the Selective Service Act,
and who left this country to avoid military service, shall thereafter
be forever barred from admission to the United States. "Mr. President,
I do not see how anyone could object to such a bill. An alien who remains
in the country and refuses to serve in the armed forces in time of war
is prosecuted under our laws, and if found guilty he is compelled to serve
a term in the penitentiary. Under the terms of the Selective Service Act
an American citizen who refuses to serve when he is called upon to do
so is likewise subject to a prison term. Certainly those who, having enjoyed
the advantages of living in the United States, were unwilling to serve
their country or subject themselves to the Selective Service Act, should
be penalized in some measure. This bill would deprive such persons as
are citizens of the United States of their citizenship, and, in the case
of aliens, would forever bar them from admission into the United States.
Any American citizen who is convicted of violating the Selective Service
Act loses his citizenship. This bill would merely impose a similar penalty
on those who are not subject to the jurisdiction of our courts, the penalty
being the same as would result in the case of those who are subject to
the jurisdiction of our courts." 90 Cong. Rec. 7628-7629.
|||*fn11 Section 349 (a)(10)
did add a presumption that failure to comply with any provision of the compulsory
service laws of the United States means that the departure from or absence
from the United States is for the purpose of avoiding military service.
See pp. 215-219, infra.
|||*fn12 Trop v. Dulles,
356 U.S., at 94.
|||*fn13 I cannot suppose
that the Court today is saying that Congress can impose denationalization
without the safeguards of a criminal trial for conduct which is unexceptionable
-- like marrying an alien -- or relatively innocuous -- like voting in a
foreign election -- but that Congress cannot do so for conduct which is
|||*fn14 See III Moore, Digest
of International Law (1906), 434, 436-438, 440; Tsiang, The Question of
Expatriation in America Prior to 1907 (1942), 44-55, 71-72, 78-84.
|||*fn15 "The Congress shall
have Power . . . .
. . . . "To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water; "To raise and support Armies,
but no Appropriation of Money to that Use shall be for a longer Term than
two Years; "To provide and maintain a Navy; "To make Rules for the Government
and Regulation of the land and naval Forces; . . . . "To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this Constitution in the Government
of the United States, or in any Department or Officer thereof." Art. I,
8, cls. 11, 12, 13, 14, 18.
|||*fn16 McFarland v. American
Sugar Rfg. Co.,
241 U.S. 79,
86; Western & Atlantic R. Co. v. Henderson,
279 U.S. 639,
642; Morrison v. California,
291 U.S. 82,
90. See Bailey v. Alabama,
219 U.S. 219,
239; Lindsley v. Natural Carbonic Gas Co.,
220 U.S. 61,
|||*fn17 The United States
Consul said, "Without evidence to the contrary, the consular officer has
no reason to doubt Dr. Cort's statements made in the attached affidavit
which purports to answer the charge that he departed from and remained outside
the jurisdiction of the United States for the purpose of evading or avoiding
training and service in the armed forces of the United States."
|||*fn18 Ng Fung Ho v. White,
259 U.S. 276;
Kessler v. Strecker,
307 U.S. 22,
35; Frank v. Rogers, 102 U. S. App. D.C. 367,
253 F.2d 889.
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