JOINT ANTI-FASCIST REFUGEE COMMITTEE v. McGRATH, ATTORNEY GENERAL, ET AL.
NO. 8.
Supreme Court of the United States
Argued October 11, 1950.—Decided April 30, 1951.
341 U.S. 123
David Rein argued the cause for petitioners in No. 7. With him on the brief were Abraham J. Isserman and Joseph Forer.
Allan R. Rosenberg argued the cause and filed a brief for petitioners in No. 71.
Solicitor General Perlman argued the cause for respondents. With him on the briefs were Assistant Attorney General Morison, James L. Morrisson and Samuel D. Slade.
MR. JUSTICE BURTON announced the judgment of the Court and delivered the following opinion, in which MR. JUSTICE DOUGLAS joins:
In each of these cases the same issue is raised by the dismissal of a complaint for its failure to state a claim upon which relief can be granted. That issue is whether, in the face of the facts alleged in the complaint and therefore admitted by the motion to dismiss, the At
PART III—RESPONSIBILITIES OF CIVIL SERVICE COMMISSION
.
.
3. The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.
a. The Loyalty Review Board shall disseminate such information to all departments and agencies.
The respective complaints describe the complaining organizations as engaged in charitable or civic activities or in the business of fraternal insurance. Each implies an attitude of cooperation and helpfulness, rather than one of hostility or disloyalty, on the part of the organization toward the United States. Two of the complaints deny expressly that the organization is within any classification specified in Part III, § 3, of the order.
For the reasons hereinafter stated, we conclude that, if the allegations of the complaints are taken as true (as they must be on the motions to dismiss), the Executive Order does not authorize the Attorney General to furnish the Loyalty Review Board with a list containing such a designation as he gave to each of these organizations without other justification. Under such circumstances his own admissions render his designations patently arbitrary because they are contrary to the alleged and uncontroverted facts constituting the entire record before us. The complaining organizations have not been afforded any opportunity to substantiate their allegations, but at this stage of the proceedings the Attorney General has chosen not to deny their allegations and has not otherwise placed them in issue.
Whatever may be his authority to designate these organizations as Communist upon undisclosed facts in his possession, he has not chosen to limit himself to that authorization. By his present procedure he has claimed authority so to designate them upon the very facts alleged by them in their own complaints. Self-serving or not, those allegations do not state facts from which alone a reasonable determination can be derived that the organizations are Communist. To defend such a designation of them, on the basis of the complaints alone, is an assertion of Presidential authority so to designate an organization at the option of the Attorney General without reliance upon either disclosed or undisclosed facts supplying a reasonable basis for the determination. It is that, and only that outer limit of the authority of the Attorney General that is now before us.
At least since 1939, increasing concern has been expressed, in and out of Congress, as to the possible presence in the employ of the Government of persons disloyal to it. This is reflected in the legislation, reports and executive orders culminating in Executive Order No.
The Attorney General included each of the complaining organizations in the list he furnished to the Loyalty Review Board November 24, 1947. That list was disseminated by the Board to all departments and agencies of the United States December 4, 1947.
No. 8.—THE REFUGEE COMMITTEE CASE
The complainant is the Joint Anti-Fascist Refugee Committee, an unincorporated association in the City and State of New York. It is the petitioner here. The defendants in the original action were the Attorney General, Tom C. Clark, and the members of the Loyalty Review Board. J. Howard McGrath has been substituted as thе Attorney General and he and the members of that Board are the respondents here.
The following statement, based on the allegations of the complaint, summarizes the situation before us: The complainant is “a charitable organization engaged in relief work” which carried on its relief activities from 1942 to 1946 under a license from the President‘s War Relief Control Board. Thereafter, it voluntarily submitted its program, budgets and audits for inspection by the Advisory Committee on Voluntary Foreign Aid of the United States Government. Since its inception, it has, through voluntary contributions, raised and disbursed funds for the benefit of anti-Fascist refugees who assisted the Government of Spain against its overthrow by force and violence. The organization‘s aims and purposes “are to raise, administer and distribute funds for the relief and rehabilitation of Spanish Republicans in exile and other
It has disbursed $1,011,448 in cash, and $217,903 in kind, for the relief of anti-Fascist refugees and their families. This relief has included money, food, shelter, educational facilities, medical treatment and supplies, and clothing to recipients in 11 countries, including the United States. The acts of the Attorney General and the Loyalty Review Board, purporting to be taken by them under authority of the Executive Order, have seriously and irreparably impaired, and will continue to so impair, the reputation of the organization and the moral support and good will of the American people necessary for the continuance of its charitable activities. Upon information and belief, these acts have caused many contributors, especially present and prospective civil servants, to reduce or discontinue their contributions to the organization; members and participants in its activities have been “vilified and subjected to public shame, disgrace, ridicule and obloquy . . .” thereby inflicting upon it economic injury and discouraging participation in its activities; it has been hampered in securing meeting places; and many people have refused to take part in its fund-raising activities.
This complaint does not contain an express denial that the complaining organization is within the classifications
No. 7.—THE NATIONAL COUNCIL CASE
In this case the court below relied upon its decision in the Refugee Committee case and reached the same result, per curiam (unreported). Except as indicated below in our summary of the facts alleged, this case, for оur purposes, is like the first. The complainants, who are the
“In all its activities the NATIONAL COUNCIL has sought to further the best interests of the American people by lawful, peaceful and constitutional means. It has never in any way engaged in any conduct or activity which provides any basis for it to be designated as ‘totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.‘”
The complaining organization, which is the petitioner here, is a fraternal benefit society, organized in 1930 as a corporation under the Insurance Law of the State of New York, operating for the mutual benefit of its members and their beneficiaries and not for profit. It is licensed and operates in the District of Columbia and several states; its purposes are comparable to those of fraternal benefit societies in general; it operates under a lodge system and has a representative form of government; at the time of the promulgation of the Department of Justice list it had 185,000 members, including employees of the Federal Government and of various states and municipalities; it provided life insurance protection for its membership exceeding $120,000,000; its activities have been the subject of administrative and judicial proceedings in addition to those before the insurance departments of the states in which it functions, and, as a result of such proceedings, “the purposes and activities of the order have been held to be free from any illegal or improper taint . . . .”9 Among the allegations of damage, made upon information and belief, the complaint states that,
The second amended complaint was dismissed by the District Court. 88 F. Supp. 873 (1949). That judgment was affirmed by the Court of Appeals, one judge dissenting. 86 U. S. App. D. C. 287, 182 F. 2d 368 (1950).
If, upon the allegations in any of these complaints, it had appeared that the acts of the respondents, from which relief was sought, were authorized by the President under his Executive Order No. 9835, the case would have bristled with constitutional issues. On that basis the complaint would have raised questions as to the justiciability and
The Executive Order contains no express or implied attempt to confer power on anyone to act arbitrarily or capriciously—even assuming a constitutional power to do so. The order includes in the purposes of the President‘s program not only the protection of the United States against disloyal employees but the “equal protection” of loyal employees against unfounded accusations of disloyalty.
It remains, therefore, for us to decide whether, on the face of these complaints, the Attorney General is acting within his authority in furnishing the Loyalty Review Board with a designation of the complaining organizations either as “Communist” or as within any other classification of Part III, § 3, of the order. In the National Council and International Workers cases, the complaining organization is alleged not only to be a civic or insurance organization, apparently above reproach from the point of view of loyalty to the United States, but it is also declared to be one that is not within any classification listed in Part III, § 3, of the order. In the Refugee Committee case, the negative allegations are omitted but the affirmative allegations are incompatible with the inclusion of the complaining organization within any of the designated classifications. The inclusion of any of the complaining organizations in the designated list solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is therefore an arbitrary and unauthorized act. In the two cases where the complaint specifically alleges the factual absence of any basis for the designation, and the respondents’ motion admits that allegation, the designation is necessarily contrary to the record. The situation is comparable to one which would be created if the Attorney General, under like circumstances, were to designate the American National Red Cross as a Communist organization. Accepting as common knowledge the charitable and loyal status of that organization, there is no doubt that, in the absence of any contrary claim asserted against it, the Executive Order does not authorize its inclusion by the Attorney General as a “Communist” organization or as coming within any of the other classifications named in Part III, § 3, of the order.
Since we find that the conduct ascribed to the Attorney General by the complaints is patently arbitrary, the defer-
In thus emphasizing an outer limit to what can be considered an authorized designation of an organization under the order, the instant cases serve a valuable purpose. They demonstrate that the order does not authorize, much less direct, the exercise of any such absolute power as would permit the inclusion in the Attorney General‘s list of a designation that is patently arbitrary or contrary to fact.11
When the acts of the Attorney General and of the members of the Loyalty Review Board are stripped of the Presidential authorization claimed for them by the respondents, they stand, on the face of these complaints, as unauthorized publications of admittedly unfounded designations of the complaining organizations as “Communist.” Their effect is to cripple the functioning and damage the reputation of those organizations in their respective communities and in the nation. The complaints, on that basis, sufficiently charge that such acts violate each complaining organization‘s common-law right to be free from defamation. “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Restatement, Torts, § 559.12
These complaints do not raise the question of the personal liability of public officials for money damages caused by their ultra vires acts. See Spalding v. Vilas, 161 U. S. 483 (1896).
They ask only for declaratory and injunctive relief striking the names of the designated organizations from the Attorney General‘s published list and, as far as practicable, correcting the public records.
The respondents are not immune from such a proceeding. Only recently, this Court recognized that “the action of an officer of the sovereign (be it holding, taking or otherwise legally affecting the plaintiff‘s property) can be regarded as so ‘illegal’ as to permit a suit for specific relief against the officer as an individual . . . if it is not within the officer‘s statutory powers or, if within those powers . . . if the powers, or their exercise in the particular case, are constitutionally void.” Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682, 701–702 (1949). The same is true here, where the acts complained of are beyond the officer‘s authority under the Executive Order.13
Finally, the standing of the petitioners to bring these suits is clear.14 The touchstone to justiciability is injury
to a legally protected right15 and the right of a bona fide charitable organization to carry on its work, free from defamatory statements of the kind discussed, is such a right.
It is unrealistic to contend that because the respondents gave no orders directly to the petitioners to change their course of conduct, relief cannot be granted against what the respondents actually did. We long have granted relief to parties whose legal rights have been violated by unlawful public action, although such action made no direct demands upon them. Columbia Broadcasting System v. United States, 316 U. S. 407 (1942); Pierce v. Society of Sisters, 268 U. S. 510 (1925); Buchanan v. Warley, 245 U. S. 60 (1917); Truax v. Raich, 239 U. S. 33 (1915).16 The complaints here amply allege past and impending serious damages caused by the actions of which the petitioners complain.
Nothing we have said purports to adjudicate the truth of petitioners’ allegations that they are not in fact communistic. We have assumed that the designations made by the Attorney General are arbitrary because we are compelled to make that assumption by his motions to dismiss the complaints. Whether the complaining organizations are in fact communistic or whether the Attorney General possesses information from which he could rea-
For these reasons, we find it necessary to reverse the judgments of the Court of Appeals in the respective cases and to remand each case to the District Court with instructions to deny the respondents’ motion that the complaint be dismissed for failure to state a claim upon which relief can be granted.
Reversed and remanded.
MR. JUSTICE CLARK took no part in the consideration or decision of any of these cases.
MR. JUSTICE BLACK, concurring.
Without notice or hearing and under color of the President‘s Executive Order No. 9835, the Attorney General found petitioners guilty of harboring treasonable opinions and designs, officially branded them as Communists, and promulgated his findings and conclusions for particular use as evidence against government employees suspected of disloyalty. In the present climate of public opinion it appears certain that the Attorney General‘s much publicized findings, regardless of their truth or falsity, are the practical equivalents of confiscation and death sentences for any blacklisted organization not possessing extraordinary financial, political or religious prestige and influence. The Government not only defends the power of the Attorney General to pronounce such deadly edicts but also argues that individuals or groups so condemned have no standing to seek redress in the courts, even though a fair judicial hearing might conclusively demonstrate their loyalty. My basic reasons for rejecting these and other contentions of the Government are in summary the following:
(2) Assuming, though I deny, that the Constitution permits the executive officially to determine, list and publicize individuals and groups as traitors and public enemies, I agree with MR. JUSTICE FRANKFURTER that the Due Process Clause of the
(3) More fundamentally, however, in my judgment the executive has no constitutional authority, with or without a hearing, officially to prepare and publish the lists challenged by petitioners. In the first place, the system adopted effectively punishes many organizations and their members merely because of their political beliefs and utterances, and to this extent smacks of a most evil type of censorship. This cannot be reconciled with the
There is argument that executive power to issue these pseudo-bills of attainder can be implied from the undoubted power of the Government to hire and discharge employees and to protect itself against treasonable individuals or organizations.2 Our basic law, however, wisely
In this day when prejudice, hate and fear are constantly invoked to justify irresponsible smears and persecution of persons even faintly suspected of entertaining unpopular views, it may be futile to suggest that the cause of internal security would be fostered, not hurt, by faithful adherence to our constitutional guarantees of individual liberty. Nevertheless, since prejudice manifests itself in much the same way in every age and country and since what has happened before can happen again, it surely should not be amiss to call attention to what has occurred when dominant governmental groups have been left free to give uncontrolled rein to their prejudices against unorthodox minorities. As specific illustration, I am adding as an appendix Macaulay‘s account of a parliamentary proscription which took place when popular prejudice was high; this is only one out of many similar
APPENDIX TO OPINION OF MR. JUSTICE BLACK.
James II, the last Stuart king of England, was driven from his throne in 1688 by William of Orange. After a brief sojourn at Saint Germains in France, James landed in Ireland where he was supported by those Irish Catholics who had suffered greatly at the hands of the English Protestant colonists. One of his first official acts was to call an Irish Parliament which enacted the bill of attainder described by the historian Macaulay as follows:
“. . . [the Commons] respected no prerogative, however ancient, however legitimate, however salutary, if they apprehended that [James II] might use it to protect the race which they abhorred. They were not satisfied till they had extorted his reluctant consent to a portentous law, a law without a parallel in the history of civilised countries, the great Act of Attainder.
“A list was framed containing between two and three thousand names. At the top was half the peerage of Ireland. Then came baronets, knights, clergymen, squires, merchants, yeomen, artisans, women, children. No investigation was made. Any member who wished to rid himself of a creditor, a rival, a private enemy, gave in the name to the clerk at the table, and it was generally inserted without discussion. The only debate of which any account has come down to us related to the Earl of Strafford. He had friends in the House who ventured to offer something in his favour. But a few words from
Simon Luttrell settled the question. ‘I have,’ he said, ‘heard the King say some hard things of that lord.’ This was thought sufficient, and the name of Strafford stands fifth in the long table of the proscribed. “Days were fixed before which those whose names were on the list were required to surrender themselves to such justice as was then administered to English Protestants in Dublin. If a proscribed person was in Ireland, he must surrender himself by the tenth of August. If he had left Ireland since the fifth of November 1688, he must surrender himself by the first of September. If he had left Ireland before the fifth of November 1688, he must surrender himself by the first of October. If he failed to appear by the appointed day, he was to be hanged, drawn, and quartered without a trial, and his property was to be confiscated. It might be physically impossible for him to deliver himself up within the time fixed by the Act. He might be bedridden. He might be in the West Indies. He might be in prison. Indeed there notoriously were such cases. Among the attainted Lords was Mountjoy. He had been induced by the villany of Tyrconnel to trust himself at Saint Germains: he had been thrown into the Bastile: he was still lying there; and the Irish parliament was not ashamed to enact that, unless he could, within a few weeks, make his escape from his cell, and present himself at Dublin, he should be put to death.
“As it was not even pretended that there had been any inquiry into the guilt of those who were thus proscribed, as not a single one among them had been heard in his own defence, and as it was certain that it would be physically impossible for many of them to surrender themselves in time, it was clear that nothing but a large exercise of the royal prerogative of mercy could prevent the perpetration of iniquities so horrible that no precedent could be found for them even in the lamentable history of the
troubles of Ireland. The Commons therefore determined that the royal prerogative of mercy should be limited. Several regulations were devised for the purpose of making the passing of pardons difficult and costly: and finally it was enacted that every pardon granted by his Majesty, after the end of November 1689, to any of the many hundreds of persons who had been sentenced to death without a trial, should be absolutely void and of none effect. Sir Richard Nagle came in state to the bar of the Lords and presented the bill with a speech worthy of the occasion. ‘Many of the persons here attainted,’ said he, ‘have been proved traitors by such evidence as satisfies us. As to the rest we have followed common fame.’ “With such reckless barbarity was the list framed that fanatical royalists, who were, at that very time, hazarding their property, their liberty, their lives, in the cause of James, were not secure from proscription. The most learned man of whom the Jacobite party could boast was Henry Dodwell, Camdenian Professor in the University of Oxford. In the cause of hereditary monarchy he shrank from no sacrifice and from no danger. It was about him that William [of Orange] uttered those memorable words: ‘He has set his heart on being a martyr; and I have set mine on disappointing him.’ But James was more cruel to friends than William to foes. Dodwell was a Protestant: he had some property in Connaught: these crimes were sufficient; and he was set down in the long roll of those who were doomed to the gallows and the quartering block.
...
“That James would give his assent to a bill which took from him the power of pardoning, seemed to many persons impossible. . . . He might also have seen that the right course was the wise course. Had he, on this great occasion, had the spirit to declare that he would not shed the blood of the innocent, and that, even as respected the guilty, he would not divest himself of the power of tem-
pering judgment with mercy, he would have regained more hearts in England than he would have lost in Ireland. But it was ever his fate to resist where he should have yielded, and to yield where he should have resisted. The most wicked of all laws received his sanction; and it is but a very small extenuation of his guilt that his sanction was somewhat reluctantly given. “That nothing might be wanting to the completeness of this great crime, extreme care was taken to prevent the persons who were attainted from knowing that they were attainted, till the day of grace fixed in the Act was passed. The roll of names was not published, but kept carefully locked up in Fitton‘s closet. Some Protestants, who still adhered to the cause of James, but who were anxious to know whether any of their friends or relations had been proscribed, tried hard to obtain a sight of the list; but solicitation, remonstrance, even bribery, proved vain. Not a single copy got abroad till it was too late for any of the thousands who had been condemned without a trial to obtain a pardon.
“. . . That the colonists, when they had won the victory, grossly abused it, that their legislation was, during many years, unjust and tyrannical, is most true. But it is not less true that they never quite came up to the atrocious example set by their vanquished enemy during his short tenure of power.”
3 Macaulay, History of England from the Accession of James the Second (London, 1855), 216-220. (Footnotes appearing in the original have been omitted.)
MR. JUSTICE FRANKFURTER, concurring.
The more issues of law are inescapably entangled in political controversies, especially those that touch the passions of the day, the more the Court is under duty to dispose of a controversy within the narrowest confines
I.
Limitation on “the judicial Power of the United States” is expressed by the requirement that a litigant must have “standing to sue” or, more comprehensively, that a federal court may entertain a controversy only if it is “justiciable.” Both characterizations mean that a court will not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a “case or controversy.” The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously. (See the course of decisions beginning with Hayburn‘s Case, 2 Dall. 409, through Parker v. Los Angeles County, 338 U. S. 327.) These generalities have had myriad applications. Each application, even to a situation not directly pertinent to what
(1) The simplest application of the concept of “standing” is to situations in which there is no real controversy between the parties. Regard for the separation of powers, see Muskrat v. United States, 219 U. S. 346, and for the importance to correct decision of adequate presentation of issues by clashing interests, see Chicago & G. T. R. Co. v. Wellman, 143 U. S. 339, restricts the courts of the United States to issues presented in an adversary manner. A petitioner does not have standing to sue unless he is “interested in and affected adversely by the decision” of which he seeks review. His “interest must be of a personal and not of an official nature.” Braxton County Court v. West Virginia, 208 U. S. 192, 197; see also Massachusetts v. Mellon, 262 U. S. 447. The interest must not be wholly negligible, as that of a taxpayer of the Federal Government is considered to be, Frothingham v. Mellon, 262 U. S. 447; cf. Crampton v. Zabriskie, 101 U. S. 601. A litigant must show more than that “he suffers in some indefinite way in common with people generally.” Frothingham v. Mellon, supra, at 488.
Adverse personal interest, even of such an indirect sort as arises from competition, is ordinarily sufficient to meet constitutional standards of justiciability. The courts may therefore by statute be given jurisdiction over claims based on such interests. Federal Communications Comm‘n v. Sanders Radio Station, 309 U. S. 470; cf. Interstate Commerce Comm‘n v. Oregon-Washington R. Co., 288 U. S. 14.
(2) To require a court to intervene in the absence of a statute, however, either on constitutional grounds or in the exercise of inherent equitable powers, something more than adverse personal interest is needed. This additional element is usually defined in terms which assume the an-
(a) Will the action challenged at any time substantially affect the “legal” interests of any person? A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. United States v. Lee, 106 U. S. 196.1 Or standing may be based on an interest created by the Constitution or a statute. E. g., Parker v. Fleming, 329 U. S. 531; Coleman v. Miller, 307 U. S. 433; cf. Bell v. Hood, 327 U. S. 678. But if no comparable common-law right exists and no such constitutional or statutory interest has been created, relief is not available judicially. Thus, at least unless capricious discrimination is asserted, there is no protected interest in contracting with the Government. A litigant therefore has no stand-
(b) Does the action challenged affect petitioner with sufficient “directness“? Frequently governmental action directly affects the legal interests of some person, and causes only a consequential detriment to another. Whether the person consequentially harmed can challenge the action is said to depend on the “directness” of the impact of the action on him. A shipper has no standing to attack a rate not applicable to him but merely affecting his previous competitive advantage over shippers subject to the rate. Hines Trustees v. United States, 263 U. S. 143, 148; Sprunt & Son v. United States, 281 U. S. 249, 255, 257. When those consequentially affected may resort to an administrative agency charged with their protection, courts are especially reluctant to give them “standing” to claim judicial review. See Atlanta v. Ickes, 308 U. S. 517; cf. Associated Industries v. Ickes, 134 F. 2d 694.2
(c) Is the action challenged sufficiently final? Although a litigant is the person most directly affected by the challenged action of the Government, he may not have “standing” to raise his objections in a court if the action has not, as it were, come to rest.4 Courts do not
“Finality” is not, however, a principle inflexibly applied. If the ultimate impact of the challenged action on the petitioner is sufficiently probable and not too distant, and if the procedure by which that ultimate action may be questioned is too onerous or hazardous, “standing” is given to challenge the action at a preliminary stage. Terrace v. Thompson, 263 U. S. 197; Santa Fe Pac. R. Co. v. Lane, 244 U. S. 492; see Waite v. Macy, 246 U. S. 606. It is well settled that equity will enjoin enforcement of criminal statutes found to be unconstitutional “when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked.” E. g., Philadelphia Co. v. Stimson, 223 U. S. 605, 621.6 And if the determination challenged creates a status which enforces a course of conduct through penal sanctions, a litigant need not subject himself to the penalties to challenge the determination. La Crosse Tel. Corp. v. Wisconsin Board, 336 U. S. 18; Shields v. Utah Idaho R. Co., 305 U. S. 177.
(3) Whether “justiciability” exists, therefore, has most often turned on evaluating both the appropriateness of the issues for decision by courts and the hardship of denying judicial relief. This explains the inference to be drawn from the cases that “standing” to challenge official action is more apt to exist when that action is not within the scope of official authority than when the objection to the administrative decision goes only to its correctness. See United States v. Los Angeles & S. L. R. Co., 273 U. S. 299, 314-315; Pennsylvania R. Co. v. Labor Board, 261 U. S. 72; Ex parte Williams, 277 U. S. 267, 271.7 The objection to judicial restraint of an unauthorized exercise of powers is not weighty.8
II.
The injury asserted in the cases at bar does not fall into any familiar category. Petitioner in No. 8, the Joint Anti-Fascist Refugee Committee, is, according to its complaint, an unincorporated association engaged in relief work on behalf of Spanish Republican refugees.
In November, 1947, each of these organizations was included in the list of groups designated by the Attorney General as within the provisions of Executive Order No. 9835, the President‘s Loyalty Order. The list was disseminated to all departments and agencies of the Government. Six months later, each was with more particularity labeled “communist.” Each alleges substantial injury as a consequence. Publicity and meeting places have become difficult for the Refugee Committee and the Council to obtain. The federal tax exemptions of all three organizations have been revoked; licenses necessary to solicitation of funds have been denied the
The novelty of the injuries described in these petitions does not alter the fact that they present the characteristics which have in the past led this Court to recognize justiciability. They are unlike claims which the courts have hitherto found incompatible with the judicial process. No lack of finality can be urged. Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finiсky or tenuous claim to object to the interference with their opportunities to retain or secure such employees as members. The membership relation is as substantial as that protected in Truax v. Raich and Pierce v. Society of Sisters, supra. And it is at least doubtful that the members could or would adequately present the organizations’ objections to the designation provisions of the Order.
Only on the ground that the organizations assert no interest protected in analogous situations at common law, by statute, or by the Constitution, therefore, can plausible challenge to their “standing” here be made. But the reasons which made an exercise of judicial power inappropriate in Perkins v. Lukens Steel Co., Tennessee Power Co. v. T. V. A., and Alabama Power Co. v. Ickes, supra, are not apposite here. There the injuries were such that, had they not been inflicted by the Government, they clearly could not have been redressed. In Perkins v. Lukens Steel Co., it was not asserted that the authority under which the Government acted was invalid; only the correctness of an interpretation of a statute in the course of the exercise of an admitted power was challenged. In the Power cases protection from competition was sought; but the thrust of the law is to preserve competition, not to give protection from it. The action there challenged, furthermore, was not directed at named individuals. Here, on the other hand, petitioners seek to challenge governmental action stigmatizing them individually. They object, not to a particular erroneous application of a valid power, but to the validity of the regulation authorizing the action. They point to two types of injury, each of a sort which, were it not for principles of governmental immunity, would be clearly actionable at common law.
This controversy is therefore amenable to the judicial process.9 Its justiciability does not depend solely on the fact that the action challenged is defamatory. Not every injury inflicted by a defamatory statement of a government officer can be redressed in court. On the balance of all considerations, the exercise here of judicial power accords with traditional canons for access to courts without inroads on the effective conduct of government.
III.
This brings us to the merits of the claims before the Court. Petitioners are organizations which, on the face of the record, are engaged solely in charitable or insurance activities. They have been designated “communist” by the Attorney General of the United States. This desig-
Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 681. It is ingrained in our national traditions and is designed to maintain them. In a variety of situations the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution. “[T]his court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the time of the adoption of the Con-
The requirement of “due process” is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens. But “due process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, “due process” cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, “due process” is compounded of history,
reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.
Fully aware of the enormous powers thus given to the judiciary and especially to its Supreme Court, those who founded this Nation put their trust in a judiciary truly independent—in judges not subject to the fears or allurements of a limited tenure and by the very nature of their function detаched from passing and partisan influences.
It may fairly be said that, barring only occasional and temporary lapses, this Court has not sought unduly to confine those who have the responsibility of governing by giving the great concept of due process doctrinaire scope. The Court has responded to the infinite variety and perplexity of the tasks of government by recognizing that what is unfair in one situation may be fair in another. Compare, for instance, Murray‘s Lessee v. Hoboken Land & Improvement Co., 18 How. 272, with Ng Fung Ho v. White, 259 U. S. 276, and see Communications Comm‘n v. WJR, 337 U. S. 265, 275. Whether the ex parte procedure to which the petitioners were subjected duly observed “the rudiments of fair play,” Chicago, M. & St. P. R. Co. v. Polt, 232 U. S. 165, 168, cannot, therefore, be tested by mere generalities or sentiments abstractly appealing. The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished—these are some of the considerations that must enter into the judicial judgment.
But the significance we attach to general principles may turn the scale when competing claims appeal for supremacy. Achievements of our civilization as precious as they were hard won were summarized by Mr. Justice Brandeis when he wrote that “in the development of our liberty insistence upon procedural regularity has been a large factor.” Burdeau v. McDowell, 256 U. S. 465, 477 (dissenting). It is noteworthy that procedural safeguards constitute the major portion of our Bill of Rights. And so, no one now doubts that in the criminal law a “person‘s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense—a right to his day in court—are basic in our system of jurisprudence.” In re Oliver, 333 U. S. 257, 273. “The hearing, moreover, must be a real one, not a sham or a pretense.” Palko v. Connecticut, 302 U. S. 319, 327. Nor is there doubt that notice and hearing are prerequisite to due process in civil proceedings, e. g., Coe v. Armour Fertilizer Works, 237 U. S. 413. Only the narrowest exceptions, justified by history become part of the habits of our people or
It is against this background of guiding considerations that we must view the rather novel aspects of the situation at hand. It is not true that the evils against which the Loyalty Order was directed are wholly devoid of analogy in our own history. The circumstances attending the Napoleonic conflicts, which gave rise to the
IV.
The construction placed by this Court upon legislation conferring administrative powers shows consistent respect for a requirement of fair procedure before men are denied or deprived of rights. From a great mass of cases, running the full gamut of control over property and liberty, there emerges the principle that statutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning. See, e. g., Anniston Mfg. Co. v. Davis, 301 U. S. 337; American Power Co. v. S. E. C., 329 U. S. 90, 107-108; Wong Yang Sung v. McGrath, 339 U. S. 33, 49. Fair hearings have been held essential for rate determinations10 and, generally, to de-
The high social and moral values inherent in the procedural safeguard of a fair hearing are attested by the narrowness and rarity of the instances when we have sustained executive action even though it did not observe the customary standards of procedural fairness. It is in these instances that constitutional compulsion regarding fair procedure was directly in issue. Thus it has been held that the Constitution cannot be invoked to prevent Congress from authorizing disbursements on the ex parte determination of an administrative officer that prescribed conditions are met. United States v. Babcock, 250 U. S. 328; cf. United States ex rel. Dunlap v. Black, 128 U. S. 40. The importation of goods is a privilege which, if Congress clearly so directs, may likewise be conditioned on ex parte findings. Buttfield v. Stranahan, 192 U. S. 470; cf. Hilton v. Merritt, 110 U. S. 97. Only by a close division of the Court was it held that at a time of national emergency, when war has not been closed by formal peace, the Attorney General is not required to give a hearing before denying hospitality to an alien deemed dangerous to public security. Ludecke v. Watkins, 335 U. S. 160; United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537. Again, when decisions of administrative officers in execution of legislation turn exclusively on considerations similar to those on which the legislative body could itself have acted summarily, notice and hearing may not be commanded by the Constitution. Bi-Metallic Co. v. Colorado, 239 U. S. 441.14
This Court is not alone in recognizing that the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. Regard for this principle has guided Congress and the Executive. Congress has often entrusted, as it may, protection of interests which it has created to administrative agencies rather than to the courts. But rarely has it authorized such agencies to act without those essential safeguards for fair judgment which in the course of centuries have come to be associated with due process. See Switchmen‘s Union v. National Mediation Board, 320 U. S. 297; Tutun v. United States, 270 U. S. 568, 576, 577; Pennsylvania R. Co. v. Labor Board, 261 U. S. 72.15 And when Congress
The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights.17
An opportunity to be heard may not seem vital when an issue relates only to technical questions susceptible
Man being what he is cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights. At least such is the conviction underlying our Bill of Rights. That a conclusion satisfies one‘s private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss
V.
The strength and significance of these considerations—considerations which go to the very ethos of the scheme of our society—give a ready answer to the problem before us. That a hearing has been thought indispensable in so many other situations, leaving the cases of denial exceptional, does not of itself prove that it must be found essential here. But it does place upon the Attorney General the burden of showing weighty reason for departing in this instance from a rule so deeply imbedded in history and in the demands of justice. Nothing in the Loyalty Order requires him to deny organizations opportunity to present their case. The Executive Order, defining his powers, directs only that designation shall be made “after appropriate investigation and determination.” This surely does not preclude an administrative procedure, however informal, which would incorporate the essentials of due process. Nothing has been presented to the Court to
We are not here dealing with the grant of Government largess. We have not before us the measured action of Congress, with the pause that is properly engendered when the validity of legislation is assailed. The Attorney General is certainly not immune from the historic requirements of fairness merely because he acts, however conscientiously, in the name of security. Nor does he obtain immunity on the ground that designation is not an “adjudication” or a “regulation” in the conventional use of those terms. Due process is not confined in its scope to the particular forms in which rights have heretofore been
Therefore the petitioners did set forth causes of action which the District Court should have entertained.
MR. JUSTICE DOUGLAS, concurring.
While I join in the opinion of MR. JUSTICE BURTON, which would dispose of the cases on procedural grounds, the Court has decided them on the Constitution. And so I turn to that aspect of the cases.
The resolution of the constitutional question presents one of the gravest issues of this generation. There is no doubt in my mind of the need for the Chief Executive and the Congress to take strong measures against any Fifth Column worming its way into government—a Fifth Column that has access to vital information and the purpose to paralyze and confuse. The problems of security are real. So are the problems of freedom. The paramount issue of the age is to reconcile the two.
In days of great tension when feelings run high, it is a temptation to take short-cuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within. The present cases, together with No. 49, Bailey v. Richardson, post, p. 918, affirmed today by an equally divided Court, are simple illustrations of that trend.
I disagree with MR. JUSTICE JACKSON that an organization—whether it be these petitioners, the American Red Cross, the Catholic Church, the Masonic Order, or the Boy Scouts—has no standing to object to being labeled “subversive” in these ex parte proceedings. The opinion
The requirements for fair trials under our system of government need no elaboration. A party is entitled to
The charge that these organizations are “subversive” could be clearly defined. But how can anyone in the context of the Executive Order say what it means? It apparently does not necessarily mean “totalitarian,” “fascist” or “communist” because they are separately listed. Does it mean an organization with socialist ideas? There are some who lump Socialists and Communists together. Does it mean an organization that thinks the lot of some peasants has been improved under Soviet auspices? Does it include an organization that is against the action of the United Nations in Korea? Does it embrace a group which on some issues of international policy aligns itself with the Soviet viewpoint? Does it mean a group which has unwittingly become the tool for Soviet propaganda? Does it mean one into whose membership some Communists have infiltrated? Or does it describe only an organization which under the guise of honorable activities serves as a front for Communist activities?
No one can tell from the Executive Order what meaning is intended. No one can tell from the records of the cases which one the Attorney General applied. The charge is flexible; it will mean one thing to one officer, another to someone else. It will be given meaning according to the predilections of the prosecutor: “subversive” to some will be synonymous with “radical“; “subversive” to others will be synonymous with “communist.” It can be expanded to include those who depart from the orthodox party line—to those whose words and actions (though completely loyal) do not conform to the orthodox view on foreign or domestic policy. These flexible standards, which vary with the mood or political philosophy of the prosecutor, are weapons which can be made as sharp or as blunt as the occasion requires. Since they are sub-
It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws, not of men. The powers being used are the powers of government over the reputations and fortunes of citizens. In situations far less severe or important than these a party is told the nature of the charge against him. Thus when a defendant is summoned before a federal court to answer to a claim for damages or to a demand for an injunction against him, there must be a “plain statement of the claim showing that the pleader is entitled to relief.”2 If that is necessary for even the most minor claim asserted against a defendant, we should require no less when it comes to determinations that may well destroy the group against whom the charge of being “subversive” is directed.3 When the Government becomes the moving party and levels its great powers against the citizen, it should be held to the same standards of fair dealing as we prescribe for other legal contests. To let the Government adopt such lesser ones as suits the convenience of its officers is to start down the totalitarian path.
The trend in that direction is only emphasized by the failure to give notice and hearing on the charges in these cases and by the procedure adopted in Bailey v. Richardson, supra.
The system used to condemn these organizations is bad enough. The evil is only compounded when a government employee is charged with being disloyal. Association with or membership in an organization found to be “subversive” weighs heavily against the accused. He is not allowed to prove that the charge against the organization is false. That case is closed; that line of defense is taken away. The technique is one of guilt by association—one of the most odious institutions of history. The fact that the technique of guilt by association was used in the prosecutions at Nuremberg4 does not make it
It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. The case of Dorothy Bailey is an excellent illustration of how dangerous a departure from our constitutional standards can be. She was charged with being a Communist and with being active in a Communist “front organization.” The Review Board stated that the case against her was based on reports, some of which came from “informants certified to us by the Fеderal Bureau of Investigation as experienced and entirely reliable.”
The Loyalty Board convicts on evidence which it cannot even appraise. The critical evidence may be the word of an unknown witness who is “a paragon of veracity, a knave, or the village idiot.”5 His name, his reputation, his prejudices, his animosities, his trustworthiness are unknown both to the judge and to the accused. The accused has no opportunity to show that the witness lied or was prejudiced or venal. Without knowing who her accusers are she has no way of defending. She has nothing to offer except her own word and the character testimony of her friends.
Dorothy Bailey was not, to be sure, faced with a criminal charge and hence not technically entitled under the Sixth Amendment to be confronted with the witnesses against her. But she was on trial for her reputation, her job, her professional standing. A disloyalty trial is the most crucial event in the life of a public servant. If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without meticulous regard for the decencies of a fair trial is abhorrent to fundamental justice.
I do not mean to imply that but for these irregularities the system of loyalty trials is constitutional. I do not see how the constitutionality of this dragnet system of loyalty trials which has been entrusted to the administrative agencies of government can be sustained. Every gov-
The problem of security is real; and the Government need not be paralyzed in handling it. The security problem, however, relates only to those sensitive areas where secrets are or may be available, where critical policies are being formulated, or where sabotage can be committed. The department heads must have leeway in handling their personnel problems in these sensitive areas. The question is one of the fitness or qualifications of an individual for a particular position. One can be transferred from those areas even when there is no more than a suspicion as to his loyalty. We meet constitutional difficulties when the Government undertakes to punish by proclaiming the disloyalty of an employee and making him ineligible for any government post. The British have avoided those difficulties by applying the loyalty procedure only in sensitive areas and in using it to test the qualifications of an employee for a particular
MR. JUSTICE JACKSON, concurring.
It is unfortunate that this Court should flounder in wordy disagreement over the validity and effect of pro- cedures which have already been pursued for several years. The extravagance of some of the views expressed and the intemperance of their statement may create a suspicion that the decision of the case does not rise above the politi- cal controversy that engendered it.
MR. JUSTICE BURTON, and those for whom he speaks, would rescue the Loyalty Order from inquiry as to its validity by spelling out an admission by the Attorney General that it has been arbitrarily misapplied. MR. JUSTICE BLACK would have us hold that listing by the Attorney General of organizations alleged to be subver- sive is the equivalent of a bill of attainder for treason after the fashion of those of the Stuart kings, while MR. JUSTICE REED contends, in substance, that the designation is a mere press release without legal consequences.
If the Court agreed that an accused employee could challenge the designation, its effect would be only ad- visory or prima facie; but as I point out later, the Court refuses so to limit the effect of the designation. In view of these and other diversified opinions, none of which has attracted sufficient adherents for a Court and none of which I can fully accept, I shall state rather than argue my view of the matter.
1. The Loyalty Order does affect substantive legal
rights.—I agree that mere designation as subversive de-
But the real target of all this procedure is the govern- ment employee who is a member of, or sympathetic to, one or more accused organizations. He not only may be discharged, but disqualified from employment, upon no other ground than such membership or sympathetic affiliation. And he cannot attack the correctness of the Attorney General‘s designation in any loyalty proceeding.2
The fact that one may not have a legal right to get or keep a government post does not mean that he can be adjudged ineligible illegally. Perkins v. Elg.5
3. The organizations may vindicate unconstitutional deprivation of members’ rights.—There are two stages at which administrative hearings could protect individuals’ legal rights—one is before an organization is designated as subversive, the other is when the individual, because of membership, is accused of disloyalty. Either choice might be a permissible solution of a difficult problem in- herent in such an extensive program. But an equally divided Court today, erroneously, I think, rejects the claim that the individual has hearing rights.6 I am un- able to comprehend the process by which those who think the Attorney General‘s designation is no more than a press release can foreclose attack upon it in the employees’ case. Also beyond my understanding is how a Court whose collective opinion is that the designations are sub- ject to judicial inquiry can at the same time say that a discharge based at least in part on them is not.
By the procedures of this Loyalty Order, both groups and individuals may be labeled disloyal and subversive. The Court grants judicial review and relief to the group while refusing it to the individual. So far as I recall, this is the first time this Court has held rights of indi- viduals subordinate and inferior to those of organized groups. I think that is an inverted view of the law— it is justice turned bottom-side up.
This procedure is appropriate here where the Govern- ment has lumped all the members’ interests in the organization so that condemnation of the one will reach all. The Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other. Having adopted this procedure in the Executive Depart- ment, I think the Government can hardly ask the Judicial Department to deny the standing of the organizations to vindicate its members’ rights.
Unless a hearing is provided in which the organization can present evidence as to its character, a presumption of disloyalty is entered against its every member-employee, and because of it, he may be branded disloyal, discharged, and rendered ineligible for government service. I would reverse the decisions for lack of due process in denying a hearing at any stage.
MR. JUSTICE REED, with whom THE CHIEF JUSTICE and MR. JUSTICE MINTON join, dissenting.
The three organizations named in the caption, together
with certain other groups and individuals, filed suits in
the United States District Court for the District of
Columbia primarily to have declared unconstitutional
Executive Order No. 9835, March 21, 1947, 12 Fed. Reg.
1935, as applied against these petitioners. Acting un-
The list was transmitted to the Board by the Attorney General as a part of the plan of the President, broadly set forth in Executive Order No. 9835, to furnish maximum protection “against infiltration of disloyal persons into the ranks of [government] employees, and equal protec- tion from unfounded accusations of disloyalty” for the loyal employees. 12 Fed. Reg. 1935. Executive Order No. 9835 came after long consideration of the problems of possible damage to the Government from disloyalty among its employees. 92 Cong. Rec. 9601. See the Report of the President‘s Temporary Commission on Em- ployee Loyalty (appointed 1946), p. 23:
“The presence within the government of any disloyal or subversive persons, or the attempt by any such persons to obtain government employment, presents a problem of such importance that it must be dealt with vigorously and effectively.”
A list of subversive organizations under Executive Order No. 9300, 3 CFR, 1943 Cum. Supp., 1252, was likewise disseminated to government agencies. 13 Fed. Reg. 1473.
The procedure for designating these petitioners as com-
munists may be summarized as follows: Executive Order
No. 9835, Part III, was issued by the President as Chief
Executive, “in the interest of the internal management of
the Government” and under the
The designations made available for the use of the Loyalty Review Board and the departmental or agency loyalty boards, the result of the investigation of the Attorney General into the character of organizations that might fall under suspicion as totalitarian, fascist, com- munist or subversive. The list does not furnish a basis for any court action against the organizations so desig- nated. It of course might follow from discovery of facts by the investigation that criminal or civil proceedings would be begun to enforce an applicable criminal statute or to cancel the franchise or some license of a listed organization. In such a proceeding, however, the accused organization would have the usual protections of any defendant. The list is evidence only of the character of the listed organizations in proceedings before loyalty boards to determine whether “reasonable” grounds exist for belief “that the employee under consideration” is dis- loyal to the Government of the United States. See note 2, supra. The names were placed on the list by the At- torney General after investigation. If legally permissible, as carried out by the Attorney General, there is no ques- tion but that a single investigation as to the character of
None of the complaints deny that the Attorney Gen- eral made an “investigation” of the organizations to de- termine whether or not they were totalitarian, fascist, communist or subversive as required by Part III, § 3, or that he had material information concerning disloyal activities on their part. The Council came the nearest to such an allegation in the quoted excerpts from their complaint in note 10, but we read them as no more than allegations of unconstitutionality because “investigation” without notice and hearing is not “appropriate.” Cer- tainly there is no specific allegation of the way in which the Attorney General failed to follow the Order. We therefore assume that the designation was made after appropriate investigation and determination.5
Procedure under the Executive Order does not require
“proof” in the sense of a court proceeding that these
communist organizations teach or incite to force and vio-
lence to obtain their objectives.8 What is required by
“In all its activities the NATIONAL COUNCIL has sought to further the best interests of the Ameri- can people by lawful, peaceful and constitutional means.”
The absence of any provision in the Order or rules for
notice to suspected organizations, for hearings with privi-
lege to the organizations to confront witnesses, cross-
examine, produce evidence and have representation of
counsel or judicial review of the conclusion reached by
the Attorney General is urged by the petitioners, as a
procedure so fundamentally unfair and restrictive of per-
sonal freedoms as to violate the Federal Constitution,
specifically the Due Process Clause and the
To these complaints, the Government filed motions to dismiss because of failure to state a claim upon which relief could be granted. The motions were granted by the District Court and the Court of Appeals affirmed.
Admissions by motions to dismiss.—It is held in MR. JUSTICE BURTON‘S opinion that the motion to dismiss should have been denied. It is said:
“The inclusion of any of the complaining organiza- tions in the designated list solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is therefore an arbitrary and unauthorized act. In the two cases where the com- plaint specifically alleges the factual absence of any basis for the designation, and the respondents’ motion admits that allegation, the designation is necessarily contrary to the record.” P. 137.
Standing to sue.—A question is raised by the United
States as to petitioners’ standing to maintain these ac-
tions. It seems unnecessary to analyze that problem in
this dissent. If there should be a determination that
petitioners’ constitutional rights are violated by petition-
ers’ designation under Part III, § 3, of the Order, it would
seem they would have standing to seek redress. The
“standing” turns on the existence of the federal right.12
Does petitioners’ designation abridge their rights under
the
First Amendment.—Petitioners assert that their inclu-
sion on the disloyal list has abridged their freedom of
speech, since listeners or readers are more difficult to ob-
tain for their speeches and publications, and parties inter-
ested in their work are more hesitant to become associates.
The Refugee Committee brief adds that “thought” is also
abridged. A concurring opinion accepts these arguments
to the point of concluding that the publication of the
lists “with or without a hearing” violates the
This Court, throughout the years, has maintained the
protection of the
Due Process.—This point brings us face to face with the argument that whether the Attorney General was right or wrong in listing these organizations, his designation cannot stand because a final decision of ineligibility for employment without notice and hearing rises to the im- portance of a constitutional defect. If standards for definition of organizations includable on the list are nec- essary, the order furnishes adequate tests as appears from the text preceding notes 2 and 7 above and the standards set out in those notes. Compare cases cited, note 6, supra.
Does due process require notice and hearing for the
Department of Justice investigation under Executive Or-
der No. 9835, Part III, § 3, note 3, supra, preliminary to
listing? As a standard for due process one cannot do bet-
ter than to accept as a measure that no one may be de-
prived of liberty or property without such reasonable
These petitioners are not ordered to do anything and are not punished for anything. Their position may be analogized to that of persons under grand jury investigation. Such persons have no right to notice by and hearing before a grand jury; only a right to defend the charge at trial.18 Property may be taken for government use without notice or hearing by a mere declaration of taking by the authorized official. No court has doubted the constitutionality of such summary action under the due process clause when just compensation must be paid ultimately.19 Persons may be barred from certain positions merely because of their аssociations.20
To allow petitioners entry into the investigation would amount to interference with the Executive‘s discretion, contrary to the ordinary operations of Government. Long ago Mr. Chief Justice Taney in Decatur v. Paulding, 14 Pet. 497, stated the rule and the reason against judicial interference with executive discretion:
“The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. . . .
“If a suit should come before this Court, which involved the construction of any of these laws, the Court certainly would not be bound to adopt the construction given by the head of a department.
And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.” P. 515. “The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them.” P. 516.
That rule still stands. Larson v. Domestic & Foreign Corp., 337 U. S. 682, 704.21 This Court applied it recently in Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U. S. 103, as to foreign policy decisions of the President concerning overseas airline licenses.22 In Louisiana v. McAdoo, 234 U. S. 627, the State sought to
“But if the matter in respect to which the action of the official is sought, is one in which the exercise of either judgment or discretion is required, the courts will refuse to substitute their judgment or discretion for that of the official entrusted by law with its execution. Interference in such a case would be to interfere with the ordinary functions of government.” P. 633.
It seems clearly erroneous to suggest that “listing” determines any “guilt” or “punishment” for the organizations or has any finality in determining the loyalty of members. The President and the Attorney General pointed this out.23 It is written into the Code of Federal Regulations,
Before stating our conclusions a comment should be made as to the introduction by the concurring opinions of a discussion of the rights of a member of these organizations. It is suggested by one concurrence that as the “Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other,” the organization must be permitted to vindicate the members’ rights or due process is not satisfied. Another concurrence states “an employee may lose his job because of the Attorney General‘s secret and ex parte action.” Both concurrences indicate, it seems to me, that as a member of petitioner organizations is denied due process by the effect of listing the organizations, the organization is likewise denied due process in the listing. Without accepting the logic of the concurrences, and waiving inquiry as to the standing of a corporation оr unincorporated association to defend the rights of a member to employment, we think the suggestions as to lack of due process are based on an erroneous premise. Employees generally, under executive departments and agencies, whether or not members of listed organizations, without special statutory protection such as permanent employees under the competitive and classified civil service laws and regulations or preference eligibles under the Veterans’ Preference Act of 1944,
Conclusion.—In our judgment organizations are not affected by these designations in such a manner as to permit a court‘s interference or to deny due process. That conclusion holds good also when we assume the organizations may present their members’ grievances over discharge as a part of the organization‘s case. The administrative hearing granted an employee facing discharge is a statutory modification of the employing agent‘s former authority to discharge summarily. Such act of grace does not create a constitutional right. Due process is called for in determinations affecting rights.
What petitioners seek is a ruling that the Government cannot designate organizations as communist for the purpose of furthering investigations into employees’ loyalty by the employing agencies without giving those organizations an opportunity to examine and meet the information on which the list is based. One can understand that position. There is a natural hesitation against any action that may damage any person or organization through an error that notice and hearing might correct. Such attitude of tolerance is reflected in § 13 of the Internal Security Act of 1950,
The Executive has authority to gather information concerning the loyalty of its employees as congressional committees have power to investigate matters of legislative interest. A public statement of legislative conclusions on information that later may be found erroneous may damage those investigated but it is not a civil judgment or a criminal conviction. Due process does not apply. Questions of propriety of political action are not for the courts. Information that an employee associates with or belongs to organizations considered communistic may be deemed by the Executive a sound reason for making inquiries into the desirability of the employment of that employee. That is not “guilt by association.” It is a warning to investigate the conduct of the employee and his opportunity for harm.
While we must be on guard against being moved to conclusions on the constitutionality of action, legislative or executive, by the circumstances of the moment, undoubtedly varying conditions call for differences in procedure. Due process requires appraisal in the light of conditions confronting the executive during the continuation of the challenged action.33 Power lies in the executive to guard the Nation from espionage, subversion and sedition by examining into the loyalty of employees, and due process in such investigation depends upon the particular exercise of that power in particular conditions.34 In investigations to determine the purposes of suspected organizations, the Government should be free to proceed without notice or hearing. Petitioners will have protec-
The judgment of the Court of Appeals should be affirmed.
Notes
The New York
The Maryland
PART V—STANDARDS
1. The standard for the refusal of employment or the removal from employment in an executive department or agency on grounds relating to loyalty shall be that, on all the evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States.
2. Activities and associations of an applicant or employee which may be considered in connection with the determination of disloyalty may include one or more of the following:
.
.
f. Membership in, affiliation with or sympathetic association with any foreign or domestic organization, association, movement, group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.
“Applying the elementary rule of statutory construction, each of these classifications must be taken to be independent and mutually exclusive of the others. It may well be that a designated organization, by reason of origin, leadership, control, purposes, policies or activities, alone or in combination, may fall within more than one of the specified classifications. In such cases a reasonable interpretation of the Executive order would seem to require that designation be predicated upon its dominant characteristics rather than extended to include all other classifications possible on the basis of what may be subordinate attributes of the group. In classifying the designated organizations the Attorney General has been guided by this policy. Acсordingly, it should not be assumed that an organization‘s dominant characteristic is its only characteristic.”
Id., at 203,
See also decisions treating as “justiciable” bills to enjoin regulations which create duties immediately enforceable by imposition of penalties. Assigned Car Cases, 274 U. S. 564; United States v. Baltimore & O. R. Co., 293 U. S. 454. “The oath to be taken by any person elected or appointed to any office of honor or profit either in the civil, military, or naval service, except the President of the United States shall be as follows: ‘I, A B, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.‘”“Before the end of the war in Europe, this relief consisted of: (1) the release and assistance of those of the aforesaid refugees who were in concentration camps in Vichy France, North Africa and other countries; (2) transportation and asylum for those of the aforesaid refugees in flight; (3) direct relief and aid, to those of the aforesaid refugees requiring help, through the Red Cross and other international agencies. At the present time, the Joint Anti-Fascist Refugee Committee relief work is principally devoted to aiding those Spanish Republican refugees, and other anti-fascist refugees who fought against Franco, located in France and Mexico.”
The number of cases considered by the end of April, 1950, was 86, classified as follows:
| Transferred to nonsecret departments. . . . . . . . . . . . . . . . . . . | 32 |
| Resigned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 5 |
| Exonerated and reinstated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 19 |
| Dismissed (including one Fascist). . . . . . . . . . . . . . . . . . . . . . . . | 7 |
| Retired for health reasons before completion of investigations... | 1 |
| On special leave, either sub judice or confirmed Communists awaiting transfer or dismissal. . . . . . . . . . . . . . . . . . . . . . . . . . | 22 |
| 86 |
See British Information Services, Reference Division, April, 1950.
In Schneiderman v. United States, 320 U.S. 118, 148, 158 (1943), a review of the evidence of communist theory upon the use of force and violence presented in that record led this Court to hold that the evidence concerning communist teaching upon force and violence was not so “clear, unequivocal and convincing” as to justify deportation of that defendant. We refused specifically to pass upon the attitude of communism toward force and violence. 320 U.S. at 148, 158.A Denver affiliate of the National Council, joined as petitioner in No. 7, has standing identical with its parent. The individual petitioners in that suit, however, have as officers of the Council an interest which is too remote to justify finding the issues justiciable as to them. The Civil Service Commission reports as of February, 1951, the following statistics relating to adjudications of loyalty under Executive Order No. 9835 of March 21, 1947:“8. The purpose, objectives and activities of the Order are in no sense subversive. The Order is not an organization within the meaning of Part III, section 3 of Executive Order No. 9835, and it has not adopted a policy of advocating or approving the commission of acts of force or violence, or to deny other persons the rights under the Constitution or as seeking to alter the form of government by unconstitutional means, but on the contrary, the Order is opposed to the commission of acts of force or violence, fights against the denial of rights to any person, and is opposed to the altering of our form of government by any illegal or unconstitutional means. The Order is dedicated to the democratic ideals and traditions of the United States and the principles of freedom and equality embodied in the Constitution.”
| Total cases received by Loyalty Boards. . . . . . . . . . . . . . . . . . . | 14,910 |
| Less: cases where employee left the service during investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 1,722 |
| Cases received for adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . | 13,188 |
| Less: cases where employee thereafter resigned. . . . . . . . . . . | 1,331 |
| field investigation reports pending in loyalty boards . . . | 1,060 |
| cases in Department of the Army . . . . . . . . . . . . . . . . . . | 1,304 |
| Cases adjudicated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 9,493 |
| Eligible determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 8,964 |
| Ineligible, excluding 20 cases on review . . . . . . . . . . . . . . . | 529 |
| Disposition of ineligibles: | |
| Dismissed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 307 |
| Restored after appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 197 |
| Remanded after appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 19 |
| On appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 26 |
In this case, A. L. Drayton, as a member of the order and a civil employee of the United States, sought permission from the District Court to intervene under
We have noted the following recitals made by the Attorney General in describing his standard procedure in the preparation of his lists:
“After the issuance of Executive Order No. 9835 by the President, the Department of Justice compiled all available data with respect to the type of organization to be dealt with under that order. The investigative reports of the Federal Bureau of Investigation concerning such organizations were correlated. Memoranda on each such organization were prepared by attorneys of the Department. The list of organizations contained herein has been certified to the Board by the Attorney General on the basis of recommendations of attorneys of the Department as reviewed by the Solicitor General, the As-
These recitals, however, relate to the mechanics used rather than to the appropriateness of the determination or the justification for the respective designations. They fall short of disclosing that there has been such an administrative hearing as would offset the admissions of the specific allegations of the complaints which are inherent in the respondents’ motions to dismiss. See Fed. Rules Civ. Proc., 12 (b) and 56 (c), and Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 401-402 (1894).
We have treated the designation of an organization by the Attorney General in his list as including his furnishing of that list to the Loyalty Review Board with knowledge of that Board‘s obligation to disseminate it to all departments and agencies of the Government.
In Southern R. Co. v. Virginia, 290 U. S. 190, the Court declared unconstitutional a state officer‘s ex parte order that a railroad install an overhead crossing. Compare Monongahela Bridge Co. v. United States, 216 U. S. 177, in which a comparable order of the Secretary of War, entered after hearing, was upheld. In decisions involving local taxation for improvements, the Court has required that owners be given a hearing on valuation as well as on the question whether their property has been benefited whenever that determination has not been legislatively made. See, e. g., Embree v. Kansas City Road Dist., 240 U. S. 242; cf. Anniston Mfg. Co. v. Davis, 301 U. S. 337. And although an individual‘s interest has been created by an ex parte decision, it may not be destroyed “without that character of notice and opportunity to be heard essential to due process of law.” United States ex rel. Turner v. Fisher, 222 U. S. 204, 208; Garfield v. Goldsby, 211 U. S. 249. See also Ex parte Robinson, 19 Wall. 505. Nortz v. United States, 294 U.S. 317, 324 (1935); Pierce Oil Corp. v. City of Hope, 248 U.S. 498 (1919); Straus v. Foxworth, 231 U.S. 162, 168 (1913).“2. A writes in a letter to B that C is a member of the Ku Klux Klan. B lives in a community in which a substantial number of the
See also, Spanel v. Pegler, 160 F. 2d 619 (C. A. 7th Cir. 1947); Wright v. Farm Journal, 158 F. 2d 976 (C. A. 2d Cir. 1947); Grant v. Reader‘s Digest Assn., 151 F. 2d 733 (C. A. 2d Cir. 1945); Mencher v. Chesley, 297 N. Y. 94, 75 N. E. 2d 257 (1947); Prosser, Handbook of the Law of Torts, § 91; 171 A. L. R. 709-710, Note.
The Japanese Immigrant Case, 189 U. S. 86; see Kwock Jan Fat v. White, 253 U. S. 454; Wong Yang Sung v. McGrath, 339 U. S. 33, 49; cf. United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537. In Lloyd Sabaudo Societa v. Elting, 287 U. S. 329, the Court held that a steamship company required to pay a fine to obtain port clearance for a ship which had brought a diseased alien to this country was entitled to determination of the facts by fair procedure. The Court disapproved in part Oceanic Nav. Co. v. Stranahan, 214 U. S. 320. Bell v. Hood, 327 U.S. 678, 681, 684 (1946); Larson v. Domestic & Foreign Corp., 337 U.S. 682, 690 (1949).The monographs prepared under the direction of the Committee support the conclusion that by statutory direction or administrative interpretation agencies consistently grant at least minimum rights of hearing. For example, the