*1 ATTORNEY KENNEDY, GENERAL, v. MENDOZA-MARTINEZ. Argued
No. 2. 10-11, October 1961. Restored to the calendar for reargument April 2, Reargued December 1962. 1962. February 18, Decided 1963.* *Together 3, Rusk, Secretary with No. State, Cort, appeal from the United States District Court for the Columbia, District of argued 11, 1961, part October decided in reargument and set for April 2, 1962, reargued December 4-5, 1962.
Bruce J. Terris reargued the cause for appellant in No. 2. J. William Doolittle reargued the cause for appellant 3.No. On the in both briefs cases were Solicitor Gen- H. Miller, Oscar Attorney General Cox, Assistant eral Feit. M. and Jerome Rosenberg Davis, Beatrice appellee for cause reargued Davis R. Thomas W. Willis. John brief him the 2. With No. appellee cause reargued the B. Boudin Leonard Rabinowitz. Victor brief was him on the 3. With No. Watts, Carliner, Rowland Wasserman, David Jack briefs filed Fraenkel K. and Osmond Poliak J. Stephen curiae, as amicus Union, Liberties Civil American for the cases. in both affirmance urging Kurnik Herzstein, Horst E. Freeman, Robert V. Milton affirmance urging brief, filed A. Reich Charles curiae. Schneider, as amicus Angelika 3,No. *3 of the opinion the Goldberg delivered Justice Mr. Court. decide cases two these in are called
We of the both, common problem, and fundamental grave divest which Acts of of constitutionality or re “[departing for his of American States of the United jurisdiction of maining outside purpose emergency or . . . national in time war service” training and avoiding or evading forces.1 armed Nation’s Mendoza-Martinez, is 401 Kennedy § 2, v. question in No. In 746, 1944, 58 Stat. in Nationality 1940, added Act of
of the full as follows: in reads by birth States, whether is a national United person who “A nationality . . . his naturalization, lose shall or jurisdiction of remaining of the outside Departing from or “(j) by the period declared during a in time war States United purpose of emergency for the period of national to be President forces or naval land training service avoiding evading or States.” of the
I. The Facts.
A. Mendoza-Martines —No. 2.
The facts of both cases are not in dispute. Mendoza-
Martinez,
appellee
No. 2,
country-
was born in this
in 1922 and
acquired
therefore
American citizenship by
By
parentage,
birth.
reason
his
also,
he
under Mex-
gained
ican law,
Mexican citizenship,
thereby possessing
nationality.
dual
departed
In
he
from this country
and went to
solely,
Mexico
as he
admits,
purpose
evading military
service
our
forces.
con-
armed
He
cedes that he remained there for
purpose
that sole
until
1946,
November
when he
returned to
voluntarily
country.
In 1947, in the United States District Court for
the Southern District of California,
pleaded guilty
he
and was convicted of evasion of
obligations
his service
violation of 11§
of the Selective Training and Service Act
1940.2
He served
imposed
year
of a
sentence
day. For all that appears in the record, was, upon
he
his
release, allowed to reside
country
undisturbed in this
until
Its
counterpart,
(a)
successor and
(10)
Immigration
§
Nationality
Act of
(a)
66 Stat. 163, 267-268,
(10),
8 U. S. C. 1481
challenged
Cort,
Rusk in-No.
and reads as follows:
“From and after the effective
person
date of this Act a
iswho
national of the
United States whether
birth or naturalization,
by—
nationality
shall lose his
. . .
*4
“(10) departing
remaining
jurisdiction
from or
outside of the
of
the United States in
during
time of
period
by
war or
declared
the
period
President
to be a
of
emergency
national
purpose
for the
of
evading
avoiding training
or
and service in
military, air,
the
or naval
forces of the United
purposes
States. For the
paragraph
of this
comply
failure
any provision
with
any compulsory
of
service laws
the
of
United States
presumption
shall raise the
departure
from or absence from the United States
purpose
for the
of
evading
avoiding training
and service in
military, air,
or naval
forces of the United States.”
894,
amended,
54 Stat.
as
(1946 ed.)
50 U. S.
App.
C.
311.
§
awith
he
served
years, was
of
lapse
after a
five
when,
1953,
This was
proceedings.
deportation
in
of arrest
warrant
outside
remaining
that,
assertion
on the
premised
September
after
service
military
to avoid
States
United
lost his
he had
effect,
(j)
took
§401
1944, when
27,
Attorney
hearing,
Following
citizenship.
American
warrant
sustained
inquiry officer
special
General’s
an alien.
deported
Mendoza-Martinez
ordered that
of the
Appeals
Immigration
Board of
to the
appealed
He
appeal.
his
dismissed
Justice, which
Department of
declaratory
brought
Mendoza-Martinez
Thereafter,
for the
District
in the Federal
Court
judgment action
of his
seeking a declaration
California,
District
Southern
(j),
of 401§
unconstitutionality
citizen, of the
status as a
directed
deportation
of all orders
voidness
in an unre-
District Court
single-judge
A
against him.
Mendoza-
against
judgment
entered
ported decision
(j),
of 401
§
virtue
holding that
1955,
Martinez in
had lost his nation-
he
constitutional,
to be
the court held
jurisdiction
remaining outside
ality by
Appeals
The Court
27, 1944.
September
after
States
2d 239.
238 F.
the judgment,
affirmed
Circuit
for the Ninth
Mackey, Mendoza-Martinez v.
Court,
1958,
This
in
and re-
certiorari,
judgment,
granted
vacated
258,
U. S.
for reconsideration
to the District Court
the cause
manded
Dulles,
in Trop
earlier
decision week
light
its
On Court light Trop unreported, decision, also its new because based unconstitutional §401 specific of a . the content nexus . . between “rational carrying Congress action of and the power under 28 appeal On' direct into execution.” power jurisdiction, probable this Court noted S. C. U. own motion remanded the and then its S.U. amend permission parties time cause, this *5 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 Ameri- can citizenship while in Mexico. Mackey v. Mendoza- Martinez, S.U. 384.
The District Court on remand held that the Gov- ernment was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez’ citizenship. The court, however, reaffirmed previous its holding 401 (j) is unconsti- tutional, adding as a further basis of invalidity that § 401 (j) is “essentially penal in character and deprives the plaintiff of procedural due process. . . . re- [T]he quirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in present proceedings.” The Attorney Gen- eral’s current appeal is from this decision. juris- Probable diction was noted on February 20, 1961, 365 U. S. 809. The case argued last Term, and restored to the calendar for reargument this Term, 369 S.U. 832.
B. Cort —No. 3. Cort, the appellee in No. 3, is also a native-born Amer- ican, born in Boston in 1927. Unlike Mendoza-Martinez, he no has dual nationality. His wife and two chil- young dren 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 3 The opinion memorandum quoted which the appears statement is unreported, but the findings of fact, conclusions of law, judg ment of the reported court are at 192 Supp. F. 1. *6 Service regular Selective his supplemented departure his Doc- newly enacted under by registering registration of letters a series he received late 1951 In Draft Act.4 tors him instructing in Embassy London American from the for re- only “valid made it to be to passport his to deliver these to respond not He did States.” United to the turn filed in in an affidavit says now he because, demands they were that “I believed proceeding, in court trial and to this myself subject to wish did not I and unlawful prevalent then persecution political forms similar research important in engaged I was ... States. to continue I desired and in physiology work teaching and had been Cort family.” my for earning livelihood a medical he was Party while Communist of the member academic except for the 1951, 1946 to from Yale student 1952, late In England. inwas when he 1948-1949 year a teach- accepted he Cambridge, England at in still while at Harvard year following academic for the ing position the school however, When, School. University Medical he had correspondence that further through discovered him it advised military obligations; his yet fulfilled not essential teaching position'as regard his not did military service his support deferment enough to draft board Thereafter, his local it. order enter February him in Massachusetts, notified Brookline, and was denied deferment for request that his 1953 examina- days physical 30 within report he should Germany. On in Frankfurt, Brookline either in tion again sent Cort draft board July 3 the 4 on June examination, the first a physical report notices Brookline, July on 1 for examination notice days 30 Frankfurt. He within for examination second August board 13 place, at either appear did September for induction on report him ordered seq. App. S. et 50 U. C. 64 Stat. 1953. He did not report, and consequently he in- dicted in December 1954 for violation 12 (a) §of Selective Service Act of reason of his failure to report for induction. This indictment is still outstand- ing. complaint His in this action states that he did not report for induction because he believed “that the induc- tion order was not issued in faith good his mili- secure tary services, past his political associations and present physical him disabilities made ineligible for such service, and that he was being ordered to report back to the United States to be served with a Congressional com- *7 subpoena mittee or indicted under the Smith Act . . . .” Meanwhile, the British Officehad Home refused to renew his residence permit, and mid-1954 and his family he moved to Prague, Czechoslovakia, where he took a posi- tion Senior Scientific Worker at the Cardiovascular Institute. He has lived there since.
In April his 1959, previous United States passport having long expired, since applied Cort at the American Embassy in Prague for a new one. His complaint in this action states that he wanted the passport “in order re- turn to the United States with his wife and children so that might he fulfill obligations his under Selective Service laws and wife his might secure medical treatment for multiple sclerosis.” Mrs. Cort received a passport and came to this country temporarily in 1959, late both for purposes of medical treatment and to ar- facilitate rangements for her husband’s return. Cort’s application, however, was on denied ground that he had, by his failure to report for induction September 14, 1953, as ordered, remained outside the country to avoid military service thereby and automatically forfeited his American citizenship by virtue of § 349 (a) (10) of the Immigration 622, 62 Stat. App. U. S. C. (a). 462§ The short title of the Act has since 1951 been the Military Universal Training and Service Act. 65 75, Stat. U. S. C. App. (a). §451 superseded had which 1952, Nationality Act and Board Passport Department’s The State (j). 401§ and expatriation, finding affirmed Review Cort, decision. affirmed legal adviser Department’s Dis- brought this suit in thereupon counsel, through declaratory a District of Columbia for the trict Court States, of the United a he is citizen that judgment be- (a) (10) of §349 enforcement against injunction directing for an order unconstitutionality, of its cause nationality and of loss certificate revocation to him. Pursuant passport States of a United issuance The was convened. court three-judge demand, Cort’s States outside he had remained held that court (10) is uncon- (a) 349§ military service, but to evade difference no substantial perceive “We stitutional because and the Trop case issue constitutional between the a citi- concluded Cort It therefore facing one us.” Secretary of State country enjoined of this zen ground on the from Cort withholding passport his interfering with from otherwise he is not citizen Herter, Supp. 683. 187 F. citizenship. Cort v. rights of Court, directly Secretary of State appealed question postponed S. C. §§ 28 U. *8 on the merits. 365 hearing of the case jurisdiction to the jurisdiction preliminary question The S. 808. U. Cort, S. Term, Rusk v. 369 U. affirmatively resolved last (10) for validity of 349 (a) § the issue of the 367, leaving reargument. S., after 369 380. now, decision U. cases, question consider the these Before we essential two constitutionality (a)(10), §§401 peculiar No. must be preliminary issues discussed. Three-Judge Court Issue. II.
At is the threshold Mendoza-Martinez’ case heard question proceeding whether the should have been by pursuant District convened three-judge Court U. S. C. which requires such a tribunal pre- aas requisite to the granting of any “interlocutory perma- or nent injunction restraining enforcement, operation execution of any Act of Congress repugnance to the Constitution of the United States . . . .” If gov- § 2282 erns this litigation, we are again once faced with the prospect aof remand and a new trial, this time by a three- judge panel. are,We however, satisfied that the case was properly by heard 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 granted. none was In the amended complaint which he filed in 1960 to put issue ques tion of collateral estoppel, he added prayer asking the court to adjudge “that defendants herein are enjoined and restrained henceforth from enforcing” all deportation . orders against him However, is abundantly clear from the amended trial stipulation which was entered into parties and approved by the judge “govern course of the trial,” that the issues were framed so as not to contemplate any injunctive relief. The question first was articulated only terms whether the Government was “herein estopped reason of the indictment and conviction of plaintiff [draft . . from . evasion] denying that the plaintiff is now a national and citizen of the United States.” The second question only asked for a declaration as to whether § 401 (j) was “unconstitu tional, either on its face or as applied to plaintiff herein.” The conclusion that no request for injunctive relief nor even contemplation of it attended the case as it went to trial is borne out by the total lack of refer ence to injunctive relief in the District Court’s memo randum opinion, findings of fact and conclusions of law, and judgment. See F. Supp. 1. The granted relief was merely a declaration that *9 the 1944 Amendment “is
Crc to the applied and as face on its unconstitutional, both “ and ever is now, plaintiff the herein,” [t]hat plaintiff citizen a national been, has his birth of the date since to amendment despite Thus, States.” the United it is trial, third before complaint Mendoza-Martinez’ any relevant at judge nor the parties neither clear relief injunctive in which as one the action regarded time in no Since case. disposition to the material was of 401 was § enforcement restraining the junction require to applicable in terms not was 2282 issue, § District Court. three-judge a convening of would relief declaratory solely for action an Whether considera- inappropriate circumstances all under decide, now need court we three-judge aby tion policy congressional case the present in the clear it is a trial before by not frustrated the statute underlying its and of history §of legislative single judge. in- hear judges three 2281,6 requiring § complement, legislation, state federal against directed junctive suits were enacted sections that these indicates respectively, paralyze being able judge single federal prevent either scheme, regulatory anof entire operation totally the order. injunctive aof broad by issuance federal, or state increasing protecting a means “was Section enterprise economic regulating legislation body of state . . . in equity. suit a conventional by from invalidation against protection procedural of the business The crux court of a federal by doom state-wide improvident an aim of Con- was the This policy. legislative state’s States, S.U. Phillips v. United . . .”. gress three-judge requires court detail, 28 S. C. In more U. injunc interlocutory permanent or grant “An in order to be convened any State operation or execution restraining enforcement, tion such State restraining officer action of statute made an order of such statute or execution enforcement . . . acting under State statutes board or commission administrative . . .” unconstitutionality . such statute ground *10 during congres- the emphasized Repeatedly 250-251. costs heavy pecuniary were the §on 2282 sional debates interruptions debilitating and of the unforeseen wrought by could be federal law which administration of in great burdens entailed order, and the single judge’s after another brought actions one harassing coping with statutory scheme, of an entire challenge operation the government officials could be over jurisdiction wherever who would ultimately was found acquired, judge until Cong. 479-481, Rec. grant injunction.- desired the (1937). 2142-2143 declaratory in form action, which was present in did not contem- agreed
relief and which its substance dangers none of the plate injunctive relief, involves sought Congress addressing itself. The relief Congress an and the order entered affected Act of totally fashion. There was no interdiction noncoercive It operation large the the statute. was declared injunctive but without sanction unconstitutional, even against application of the statute the Government Pending to Mendoza-Martinez. review the Court Appeals Court, and this has been free Government apply to continue to being case, the statute. That is here no conflict with purpose there provide three-judge for the convocation of a court when- operation ever the of a statutory may scheme be imme- diately disrupted judicial before a final determination of validity of the trial court’s order can be obtained. Thus there was no reason whatever case to invoke this special and extraordinary procedure three-judge of a Rusk, court. Compare post, p. Schneider v. 224, decided day. Collateral-Estoppel III. The Issue. Mendoza-Martinez’ complaint, second filed in amended pursuant suggestion to the of this Court earlier that year, charged government that “the of the United States citizenship his States fact of
has admitted of conviction. judgment [in indictment virtue collaterally therefore . . and is . for draft evasion] The Dis- . . . such deny estopped now Mendoza-Martinez this assertion. rejected trict Court upholding ground an alternative it here as renews now, plaintiff “That below judgment entered a national been, has of his birth the date ever since *11 at 3. Supp., 192 F. States.” citizen of the United on this contention reject too Mendoza-Martinez’ We follows: fully, more is as argument, stated point. His applies Act of 1940 Training and Service The Selective the indictment aliens. Both only citizens and resident having remained in terms of his judgment spoke and the 1942, 15, from November period in for the entire Mexico country.7 to this when he returned 1,1946, until November counts, in three but Mendoza-Martinez The indictment was only full I, which reads in as follows: convicted on Count person within a male “Defendant Mendoza, Frank Martinez subject service under the Selective Train- the class made to selective registered required ing 1940, amended, Act of as and Service promulgated regulations thereunder and became a said act and the being registrant then of Local Board No. said board and there System duly estab- acting, under the Selective Service created and act, County, California, in Divi- lished in Kern the Northern said California; on or Novem- District of about sion Southern provisions 15, 1942, -of said act and the ber in violation of the knowingly regulations promulgated thereunder, the defendant did evade service in the land or naval forces of the United States knowingly depart he did from the United States and America namely: purpose evading go foreign country, Mexico, to a forces of the United States and did there service land or naval remain until on or about November 1946.” similarly, judgment commitment, stated that Mendoza- Martinez was convicted of:
“Having 1942, knowingly departed on or about November 15th evading Mexico, purpose for the service from the United States to having in the land or naval forces of the United States and remained 1st 1946.” there until on or about November For the period September 27, 1944, when effective, became until November 1, 1946, he could not have been in of our draft violation laws unless he remained a citizen of the United since States, 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 country outside the after September 27, 1944, because it him charged draft evasion for that period as well as for the period preceding that date.
It is true that “as to those
matters
points
issue or
controverted,
the determination of which the find
ing or verdict was rendered,”
Sac,
Cromwell County
S. 351, 353,
findings
U.
in a
criminal
prior
pro
ceeding may estop a
party
a subsequent
action,
civil
Emich Motors
v. General
Corp.
Motors Corp., 340
S.U.
558, 568-569, and that the
may
estopped
States
to deny
even
prior
erroneous
determination of status,
Moser,
United States v.
the United This evading service the purpose for Mexico, . . . lan- additional The violation. alleged constituted about on or until remain there “did he guage to in relation surplusage merely was 1946,” 1, November example, might, although offense, the substantive with connected problems in relation a purpose serve language No limitations. statute of tolling knowledge the elements charging appears violation — only The it. with connection to evade —in purpose and November “on or about happened is what charged crime if it had entailed thereon, even conviction 15, and 1942,” citizenship on Mendoza-Martinez’ finding reference the Government estopped in nowise date,9 27, 1944. September status after to his differently. no worded was judgment trial court’s of: convicted Mendoza-Martinez know- 1942, 15th November or about “Having on Mexico, the United States from departed ingly land or naval evading service in purpose having and remained of the United States forces 1946.” 1st or about November there until on during which time relating to the language Again, the was not tied in Mexico remained Mendoza-Martinez to evade service. knowledge purpose stating the words find- necessary no actual entailed Thus, the conviction status between citizenship Mendoza-Martinez’ ing about Gov- 1,1946, and November September his estopped denying was not ernment proceedings. the present applied both Training of 1940 Service Act the Selective Since *13 determine no need to aliens, there was
to resident citizens about November fell “on or category Mendoza-Martinez which disputed that is, course, not proceeding it of present In the 1942.” citizen on that date. was an American Mendoza-Martinez The Issues. IV. Constitutional Principles.
A. Basic Congress is we validity involved, of an Act of Since the now begin analysis mindful that the function we are our discharging gravest duty is “the and most delicate Blodgett perform.” this Court is called Holden, Holmes, S. (separate opinion 275 U. with all J.). responsibility respect This we here fulfill powers Congress, recognition for the but with of our transcendent status Constitution. contending arguments deal with the constitutional
We
conflicting
in the context of certain basic and sometimes
principles. Citizenship
precious right.
is most
It
guaranteed by
expressly
the Fourteenth Amendment
Constitution,
speaks
positive
in the most
terms.10 The Constitution is silent about the permissi
bility
involuntary
rights.11
forfeiture of citizenship
plainly
While
confirms
im
rights,
there are
perative obligations
citizenship, performance
of which
Congress in the
powers may
exercise
its
constitu
tionally exact. One of the
important
most
of these is
country
to serve the
time of war and national emer
gency.
powers
require military
service
the common defense are broad and far-reachin
Const.,
XIV,
persons
U. S.
Amend.
1: “All
bom or naturalized
States,
subject
jurisdiction
United
thereof,
to the
are
citizens of the
they
United States and of the State wherein
re
side. . . .” This
interpreted
light
statement
constitutional
pre-existing
principles governing citizenship.
common-law
Wong
Ark,
States v.
Kim
16a against invasions protects while the Constitution g,’12 Similarly, pact. a rights, it is not suicide of individual Necessary Proper and under the power has broad foreign regulation for the legislation Clause enact necessary to ensure effec- in this area is affairs. Latitude government.13 indispensable tuation of this function from stemming on the one hand principles, These guaranteed rights constitutionally nature of the preeious powers from the of Con- citizenship, and on the other gress obligations citizens, and the related of individual are urged upon parties us here. Government (a)(10) argues §§401 and 349 are valid as an Congress’ power foreign of its war affairs, exercise over power, sovereignty and of the inherent of the Government. Appellees urge invalidity provisions’ within as any powers asserted, imposing cruel punishment. unusual recognize
We at the outset that we are confronted here with an import. Deprivation issue the utmost of citi- American zenship particularly citizenship, which is “one — most rights valuable the world today,” Report Immigration President’s Commission on and Nat- (1953), grave uralization practical consequences. 235—has An expatriate who, like had Cort, nationality no other be- comes a stateless person person only who not has no —a rights as an American but citizen, membership any no entity national whatsoever. “Such individuals as do not possess any nationality enjoy, general, protection no if whatever, they aggrieved by are they State have no means of redress, since there no State which is com- petent up to take their As far case. as the Law of Na- parte Quirin, 317 U. S. Ex 25-26. See also Home Bldg. & Loan Assn. v. 398, 426; 290 U. S. Blaisdell, Hirabayashi v. States, 320 U. S. 93. Mackenzie v. 299, 311-312; 239 U. S. Hare, Brownell, Perez S., 356 U. supra, at 57-58. concerned,
tions is there is, apart restraints of morality obligations expressly by treaty laid down . . . no restriction whatever to cause State to abstain from maltreating extent such stateless individuals.” (8th 1 Oppenheim, International Law ed., Lauterpacht, *15 1955), calamity 640.14 The 291, the loss “[n]ot specific rights, but the loss of a then, community willing guarantee to any rights able . whatsoever . . Origins The Arendt, (1951), Totalitarianism 294. The may person up stateless end shunted from to nation being no nation, obligated willing there one or to receive as in him,15or, case, may Cort’s receive dubious sanc- tuary of regime a Communist lacking the essential liberties precious citizenship.16 to American
14 Garner, Uniformity Respect See also Nationality, Law in to (1925). 19 Am. J. Int’l L. 547 15 Seckler-Hudson, Special See Statelessness: With Reference to (1934), 244-253; Preuss, the United States International Law and Deprivation Nationality, (1934); Holborn, 23 Geo. L. J. 250 The Legal Refugees, 1920-1938, Status of Political 32 Am. J. Int’l L. 680 United, (1938). Shaughnessy Mezei, See also v. States ex rel. U. S. 206. consequences The drastic of statelessness have led to reaffirma Rights, tion in the United Nations Universal Declaration of Human right 15, every nationality. Article of the individual to retain a pp. A/810, 71, (1948) (adopted by U. N Doc. No. N.U. Assembly 10, 1948), reprinted General on Dec. in UNESCO, Human Rights, App. (1949). A Symposium, Study III See also A on State Report lessness. (1949); U. N. Doc. No. the Elimi Second E/1112 Statelessness, nation or Reduction of U. N. Doc. No. 4/75 A/CN. (1953); Weis, The United Nations Convention on the Reduction of Statelessness, Q. 1961, Comp. (1962), 11 Int’l & L. and authori ties cited therein. recognized Report evils of were statelessness of the Immigration (1953),
President’s Commission on and Naturalization unanimously disapproved and the treatise writers have of stat- regard they utes which denationalize individuals without to whether nationality. Diplomatic Borchard, have dual Protection of Citizens Trop Cases.
B. The Perez
gravity of the
involved, here
principles
The basic
Congress’ power
bearing upon
arguments
and the
issue,
in relation
considered
the Court
citizenship were
forfeit
of 1940 in
Nationality Act
provisions
to different
years
less than five
day
on the same
two cases decided
Dulles,
Brownell,
Trop
S.
v.
ago: Perez
356 U.
In loss (e), § 401 foreign in a or “[vjoting political in a election state in an determine the participating plebiscite election by a territory,” upheld sovereignty foreign over a constitutional exercise Con- closely divided Court as rea- gress’ regulate foreign affairs. The Court power soned that since withdrawal of of Americans reasonably foreign who elections is calculated vote *16 of of in the conduct effect the avoidance embarrassment the of foreign relations, power such withdrawal is within acting Necessary the Congress, Proper under Clause. (e) § sustained the of 401 application Since the Court (j), did Perez, denationalize it not have to deal with 401§ relied, which the had also and it ex- Government constitutionality rule on of that pressly declined to section, S., opinions 356 U. at 62. There were three writ- principal one, ten in dissent. The that of The Chief recognized “that Justice, citizenship may only be vol- untarily through of right renounced exercise of ex- patriation derogation but also other actions of id., allegiance to this country,” undivided at but con- cluded that mere voting foreign election, act of “[t]he regard without however, attending the circumstances (1916), §§262, 334; Fenwick, (3d Abroad Law ed. International supra, 1948), 263; 313a; 1 Oppenheim, Gettys, The Law of §§ 313— Citizenship (1934), 137-138, in the United States 160. a voluntary is not sufficient to show participation, id., of at 78. citizenship,”
abandonment (g), forfeiting In of Trop, § military guilty “[djeserting American who is of war, provided naval forces of the States in time by court martial and as the result he is convicted thereof dishonorably dis- is dismissed or of such conviction There charged . . . was declared unconstitutional. ,” wrote opinion was no of the Court. Chief Justice concluding opinion Court, for four members of the that he had (g) § was invalid for the same reason Perez, urged (e) as to and that § 401 his dissent im- also as a cruel and punishment invalid unusual posed in Eighth violation Amendment. Justice conceded that “paradoxical justify it is Brennan constitutional expatriation citizen who has committed no crime in a voting political Mexican elec- tion, yet find unconstitutional a statute which provides for the expatriation guilty very a soldier serious crime of desertion in at 105. war,” S., time U. Notwithstanding, requisite he because “the concurred power rational relation between statute and the war id., . 114. appear ,” Frankfurter, does not . . at Justice joined by Justices, ground three other dissented on the (g) impose did not alone punishment all, let punishment, cruel and unusual and was within the war Congress. powers (;) (a) (10) Sections as Punishment.
C. Jfil S/fi *17 present present cases for decision the constitu- tionality of a section not in passed either Perez in Trop 401 added and its (j), and successor §— present counterpart, (a) (10) Immigration §349 Nationality and Act of 1952. We have come to the con- clusion that there is a basic in question present cases, 164 between here a choice obviates to which answer guarantee constitutional Congress and
powers here, the statutes whether That issue citizenship. pro- or administrative court prior automatically —-without essentially are citizenship, forfeiture ceedings impose— deprived have consequently and character, penal in lawof process due citizenship without of their appellees by the rights guaranteed them according without and confronta- including notice, Amendments, Sixth Fifth and trial obtaining witnesses, process compulsory tion, rele- was not issue This of counsel. assistance and jury, (j) 401 §§ in contrast because, Trop vant by court-mar- conviction required (g) 401 (10), § (a) citizenship could forfeiture of before for desertion tial (e) that the contention In Perez inflicted. by the Court’s rejected impliedly character was penal in totally different history legislative holding, based voting (a) (10), (j) underlying §§ 401 regulable “is foreign state in a election in a political affairs.” foreign to deal with power its Congress under Virginia, Dent West v. Compare 59. atS., 356 U. Flemming York, 189; S. New 170 U. Hawker v. 114; S.U. Jus- Indeed, Trop The Chief Nestor, 603. 363 U. S. of citizen- decrees loss that “Section tice observed due procedural any semblance providing ship without de- bemay of the draft evader whereby the guilt process S., ,” . . . 356 U. imposed before the sanction termined to the Frankfurter dissent alluded Justice (g) § 401 requirement overtones process due id., at by court-martial, for desertion prior conviction 116-117. great powers
It is fundamental foreign relations regulate and to the Nation’s war conduct of due requirements to the subject are constitutional
165 process.17 imperative The necessity for safeguarding these rights procedural process due gravest under the emergencies existed throughout has our constitutional history, for is then, under the pressing exigencies of crisis, that greatest there is the temptation to dispense with fundamental guarantees constitutional which, it is feared, governmental will inhibit action. “The Consti tution of the United States a law for rulers and people, equally in war and in peace, and covers with the shield protection of its all classes of at all men, times, and under all circumstances.” Ex parte Milligan, 4 2, 120-1 Wall. 18 21. rights guaranteed by the Fifth and Sixth Amendments are “preserved to every one accused of crime who is not attached to the army, navy, or Id., militia actual service.” at 123.19 society “[I]f disturbed passions civil commotion —if the of men are aroused and the restraints of law if not weakened, dis regarded safeguards and should need, receive, the —these watchful care of those intrusted with the guardianship the Constitution and In laws. no other way can we trans mit to posterity unimpaired blessings of liberty, con secrated the sacrifices of Id., the Revolution.” at 124. hold §§ We 401 and 349 (a)(10) invalid because in them plainly has employed the sanction of dep- rivation of nationality punishment the offense —for of leaving or remaining outside country mili- evade
17
powers:
War
81,
Grocery
United States
S.U.
Co.,
v. Cohen
88;
parte Endo,
283,
Foreign-affairs
323 U. S.
Ex
powers:
298-300.
116, 125-130;
v.
357 U. S.
Dulles,
Kent
Shachtman v.
S.U.
Dulles,
App.
287,
(1955).
D. C.
As the Government with citizenship, his of American automatically strip an worth makes life “of all that deprivation concomitant 284-285, White, S. Fung Ho v. U. Ng living,” outside from or remains departs a citizen whenever evading of country purpose for the of this jurisdiction evasion, draft obligations. Conviction military his capital, a or otherwise to answer for person shall be held “No of a Grand presentment or indictment crime, unless on infamous forces, or in arising land or naval except Jury, in cases public danger; nor or in time War Militia, in actual service when put in subject offence to be twice any person for the same be shall compelled in criminal case limb; shall be jeopardy life or nor liberty, deprived life, or himself, be against nor be to a witness private property be law; nor shall process of property, without due Const., just compensation.” U. use, S. public without taken for Amend. V. enjoy right to prosecutions, the shall accused “In all criminal jury dis- impartial of the State and public trial, speedy and committed, district been crime have trict wherein the shall by law, and to informed previously ascertained been shall have accusation; be confronted with the to and cause of the the nature process obtaining wit- compulsory against him; to have witnesses for his favor, Counsel have Assistance in his nesses VI. Const., Amend. U. S. defence.” illustrates, prerequisite operation case is not Cort’s Independently of this sanction.21 forfei- prosecution, statutory attaches when the set of facts ture develops. argued availability after It includ- judicial proceedings, fact of administrative and last Term in Rusk ing machinery approved the Court Cort, validity of the S. to contest the sanc- U. legisla- process. tion meets the measure of due But the history judicial expression respect every tive congressional relating provisions ques- enactment to the dating tion back to 1865 establish that forfeiture of citi- leaving zenship penalty staying for the act of country being outside the the draft. so, avoid This the Fifth and pun- Sixth Amendments mandate that this *20 imposed ishment cannot be without a criminal trial prior and all incidents, including its con- indictment, notice, frontation, jury trial, counsel, compul- assistance of process If sory obtaining witnesses. the sanction these impose sections is and it punishment, plainly is, pro- cedural safeguards required as incidents of a criminal prosecution lacking. go are need- no further. We
21Thus was, happened, the fact that Mendoza-Martinez as it deportation proceedings convicted of draft evasion before were brought against him is of no relevance. Even if the incidence of potentially validity conviction for draft evasion were relevant to the (a) (10), and 349 the fact is that the “crime” created §§401 necessary these sections includes an element not to conviction for violation “ 11 Training of the Selective and Service Act of 1940— eparti'ng remaining country purpose or outside” the “for the
[d] evading avoiding [military] training or and service . . . .” See Comment, Congress Involuntary Power of to Effect Expatriation, 56 1142, (1958). Mich. L. Rev. 1166 n. 102 Mendoza-Martinez was thus never tried for crime the elements of which are identical totally inclusory with or (j), of those of and hence was not §401 arguably procedural protections even accorded the we here hold essential.
168 is evident punitive here of the sanction nature traditionally applied whether to determine tests under the regulatory penal character, or is an Act problem though been ex has cases in other even tremely Whether of solution. elusive difficult and disability restraint,22 an affirmative involves sanction punishm regarded historically as a been has it whether finding play only on a into comes whether it ent,23 promote operation tradi will whether its scienter,24 punishment deterrence,25 aims of tional —retribution already applies which it the behavior whether may purpose which it alternative an crime,26whether 22 Lovett, 328 States v. Garland, United 377; parte 333, Ex 4 Wall. Flemming Nestor, 603, 617. 316; 363 U. S. 303, v. S.U. parte Wilson, 320-321; Ex Missouri, Cummings 277, Wall. States, 348, v. United S. Mackin 426-429; U. S. 114 U. States, Wong Wing 228, 237-238. Ref v. S. 350-352; U. Though deter peculiarly appropriate. history here erence citizen holding forfeiture of supports to note that minative, our throughout exile have ship of banishment and and the related devices Rome, were “There history punishment. In ancient used as been his freedom, and with ways might lose his many which a man might he necessarily his also. Thus lost freedom he to the mines slavery debtor, or insolvent condemned sold into poenae.” Salmond, Citizenship and Alle his crimes as servus weapon (1901). Q. Banishment was a giance, 17 L. Rev. *377, but it was legal centuries, 4 Bl. .English arsenal for Comm. were punishment by men who accus always “adjudged even a harsh *21 Maxey, justice.” brutality of criminal administration in the tomed Fiat? 26 Nationality: or Government Individual Choice Loss of (1962). Albany 151, L. Rev. 164 24 States, Labor Child 610-612; Helwig United 605, 188 U. S. v. Case, 20, Tax 37-38. 259 U. S. 25 Dulles, 295; Trop Constantine, 287, v. United States v. 296 U. S. ; id., at Justice) supra, S., (opinion of The Chief at 96 356 U. concurring). (Brennan, J., 111-112 26 Franca, La States v. Lipke Lederer. 259 U. S. United 557, 562; v. supra, Constantine, States 296 United 568, 572-573; v. 282 S. U. S., 295. U. at
169 rationally assignable be connected is for it,27 and whether appears excessive relation to the purpose, alternative assigned28 are all inquiry, may relevant often point differing directions. Absent conclusive evidence congressional penal intent as to the nature of a stat ute, these factors-must be considered relation to the Here, although statute on its face. we are convinced that application of these criteria to the face of the statutes supports the conclusion that are they punitive, detailed along examination such lines is unnecessary, because the objective congressional manifestations of purpose indicate conclusively provisions in question only can interpreted punitive.29 A study history of the predecessor (j), §401 which “is worth a volume York logic,” Eisner, New Trust Co. 345, 349, v. 256 U. S. coupled with a reading Congress’ reasons for enact ing (j), compels § 401 a conclusion that the statute’s primary function is to serve as an penalty additional
27Cummings Missouri, supra, 319; Wall., v. 4 at Child Labor Tax Case, supra, S., 43; Lipke Lederer, supra, S., 259 U. at v. 259 at U. 561-562; Franca, Trop supra, S., 572; United States v. La 282 U. at Dulles, supra, S., 96-97; Flemming Nestor, supra, v. 356 U. at v. 363 S., 615, U. at 617. Missouri, Cummings supra, Wall., 318;, Helwig v. at v. United States, supra, S., 613; supra, Constantine, 188 U. at United States v. 295; S., States, 148, 296 U. at Rex Trailer United Co. v. 350 U. S. Case, supra, S., 41; 154. But cf. Child Labor Tax 259 U. at Flem ming Nestor, supra, 614, v. 616 and n. 9. 29Compare Cummings Missouri, 322; 277, 320, Wall. Lovett, 303, 308-312; Wormuth, Legislative States v. 328 U. S. Dis qualifications Attainder, 603, (1951); as Bills of 4 Vand. L. Rev. Note, Meaning Separation Punishment: Its in Relation to of Power Lovett, and Substantive Constitutional Restrictions and Its Use Trop, Speiser (1959); Perez, Cases, 231, 34 Ind. L. J. 249-253 Comment, The Communist Control Act of 64 Yale L. J. (1955). *22 Trop Compare evader.30 of draft category special J., (Brennan, at 107-110 Dulles, S., U. supra, v. concurring). Judicial and Statute Predecessor
1. The Construction. in origin their have question here in
The subsections Acts here- the amend several “Act War to of a part Civil Calling out Enrolling and for the provide to passed tofore of Act Purposes.” for other Forces, and the National deal- Act, 21 of that Section 487. 3,1865,13 Stat. March puni- evaders, was terms and draft ing with deserters lawful other to the “in addition providing tive, thereof guilty desertion,” persons of the crime of penalties voluntarily relin- to have taken and be deemed “shall and their of rights their forfeited and quished being who, persons all . . and . citizens rights become district jurisdiction the depart shall enrolled, duly the limits of the beyond go enrolled, or he which into draft any avoid intent with States, United Savorgnan v. 299, Hare, S. 239. U. Mackenzie they stand for which proposition 491, whatever States, S. 338 U. citizenship, impose loss Congress to power with in connection (opinion 51-52, 61-62 S., at supra, Brownell, 356 U. compare Perez v. opinion of The Chief (dissenting id., 68-73 Court), with Douglas), opinion of Justice (dissenting id., at 80 Justice) question statutes Perez. as is distinguishable, plainly are both citizenship for noncriminal provided loss cases of those in each attaching to behavior additional sanction as an instead behavior passage attending their expression congressional crime, already char purpose punitive overwhelming indications lacked we do on basing Thus, decision here. enactments acterized issue, presently at underlying statutes intent penal unmistakable there cases, and these other holding inconsistent nothing in our power of Con question pass for us nois occasion See note those cases. involved statutes it did gress act as 43, infra. *23 to
military duly ordered, shall be liable service, naval 31 penalties of this section.” that the use of The debates in in 1865 confirm in 21 not The section punitive language was accidental. rights originally proposed inflicted loss proposed Morrill of only on deserters. Senator Maine who leave the coun- amending persons the section to cover try why to “I do not see same draft, stating, avoid the leave the coun- principle should not extend to those who 2d Sess. try Cong. Globe, Cong., to avoid the draft.” 38th because (1865). principle” punitive, This “same was Morrill was also worried insofar as the sec- Senator that originally “provides penalty” tion as for a to be proposed there imposed persons deserted, on who had theretofore law, it is not an ex question post “whether facto already done.” fixing penalty whether it is for an act not allay to Maryland attempted Ibid. Senator Johnson by explaining Morrill’s concern that Senator who have imposed upon not those penalties “the are those who nothing only if but deserted, occurs, else sixty who shall not return within have deserted and is in- punishment for which the days. The crime fact of an antecedent deser- flicted is made of the up days. It is sixty return within tion, and a to failure Ibid. Congress.” clearly power within the sufficiently so that the Senate explanation This satisfied Morrill’s amend- section, with Senator they accepted Indiana-made one although Senator Hendricks ment, colleagues of the convince his speech last in an effort to apart that, even and, ex nature post bill’s facto ap- particularly as punishment, of the the excessiveness draft evaders: plied very section me to be clear that
“It seems to this already desertions which have proposes punish and Cort would have been cov of Mendoza-Martinez acts (a) (10). well as ered this statute as §§ law does penalty place, taken is an ex post words In other already prescribe. . . . pass. cannot I we think law which criminal facto criminal to the very well known penalties One right of suf- of the country is the denial laws or profit. trust offices of to hold right frage very to the section objection me this “It seems to sec- further suggest I desire but clear, hereafter take may desertions punishes tion is known Sena- and it manner, in the same place report- is not recently created desertion tors one *24 to I submit draft. ... of the ing when notified a man deprive thing to a horrible it is that Senators honor, and pride his which is of that citizenship, his to report been unable that he has fact from the mere has that he being notified after specified the day deser- for Certainly punishment the drafted. been from the de- extends now enough. It is severe tion given compass death; that entire to pay up nial of Why add this offense. punishment for the Id., at 643. any good.” do It other? cannot Representative New York’s motion of House, the In “despotic measure” the section to strike Townsend fifty thousand, deprive the effect would “have people thousand, hundred but one I do not know and argument bymet privileges,” and rights their of the Chairman Ohio, Schenck Representative is law- penalty “Here is Military Committee, that to the other should be added and that proper, ful, wise, Id., against deserters.” now exist penalties lawful Iowa proposed Wilson Representative After at 1155. in the placed enacted accepted amendment, later portion draft-evasion extending the bill, of the version they are district in which leaving “the persons apply leaving country, Repre- to those in addition enrolled” ex post raised the of Illinois C. Allen J. sentative facto Id., at 1155-1156. as whole. the section objection him much as Senator Representative Schenck answered replied had Senate: Johnson C. Illinois J. gentleman from “The [Mr. Allen] having looked from not this section misapprehends He language. its thinks think, as I into carefully, provide not so. It does It is it retroactive. character in their those who deserted punishing have having gone pas- before acquired of deserters being de- who, only, of those law, but sage of themselves report not return shall serters, at looks gentleman If the sixty days. duty within that we have he will find section, language giveWe making it retroactive. carefully avoided flag their country and their those have deserted who repentance return. sixty days for of this not the infliction ALLEN. Will J. C. “Mr. to the failed to return those who have penalty did not exist an additional Army penalty they deserted? time sir. Yes, SCHENCK. “Mr. law make Does not that J. C. ALLEN.
“Mr. retroactive? *25 now. We They are deserters SCHENCK.
“Mr. character status and in their up present them take in that continuing for them punish and deserters, as I here. lawyers refers to gentleman The character. Does he himself. good lawyer he is believe away with a horse and runs man if a steals know that larceny of a continual county it is act the next it to Id., at 1156. horse?” up the delivers he until excerpts is, these of debates these significance The in both was a difference while there that show, plainly post an ex would be the statute as whether Houses facto on both speakers the among all agreement there was law, sides of the merits both as on as well issue, that of sides citizen- of rights of deprivation that generally, the bill of awas draft country to evade leaving ship “of- and an “crime” for a “punishment” and “penalty” law.” “criminal of a and a violation fense” rendered decisions judicial court of state number A support impressive lend War after the Civil shortly and §§ predecessor that the conclusion a criminal statute, was of the 1865 (a) (10), §21 for desertion punishment an additional imposing statute of these important and most The first draft evasion. and which, as (1866), Pa. Reily, 53 Huber v. was had plaintiff followed,32 which of the cases in most home of his judge the election against an action brought to re- had refused defendant alleging that township, a deserter plaintiff was that ground on the his ballot ceive such and that 21,§ under disenfranchised thereby and unconstitutional. 21§ was wrongful because refusal 21 was were invalidity grounds of asserted attempt Con- an it was jacto law, post an ex out- and therefore in the States suffrage gress regulate proposed and power, sphere Congress’ side conviction, a trial and without penalties pains inflict In Rights. Bill of by the prohibited was therefore Court, member Strong, later a Justice opinion characterized first Court Supreme Pennsylvania discussion compelled way which statute unconstitutionality: grounds asserted imposes It highly penal. of Congress “The Act rights deprivation forfeiture aof the commission penalties citizenship as penalties to add to the purpose avowed crime. Its offence affixed to the previously law had p. See infra. *26 of desertion from the military or naval service United and it denominates additional States, provided penalties.” sanctions Pa., at 114-115. It then the ex post argument answered as it had facto been answered the floor of Congress, that the offense could as well be in the refusal to render continued service as in original desertion. The second contention was met with the statement operates “The enactment punishes individual him offender, for violation of the Federal law by deprivation of his citizenship of the but it States, each state to leaves determine for itself whether such an may individual be a It voter. does no more than increase penalties of the law upon the Id., commission of crime.” at 116. “The third objec- tion,” the court continued, very grave “would be if one the act in reality does impose pains and penalties before and without a conviction by process Id., due of law.” 116-117. The court then protections summarized the guaranteed by the Fifth and Sixth Amendments, con- cluded that it was not consistent with rights these empower a “judge of elections or a board of election officers constituted under state laws ... to adjudge guilt innocence of an alleged violator of the laws of the United Id., States.” at 117. However, the court decided that since the penalty contemplated by 21§ “is added to what the law had previously enacted to be penalty of deser- tion, as imprisonment is sometimes added to punishment by fine,” it must have been intended “that it should be in- curred the same way, imposed by the same tribunal that was impose authorized to penalties other for the Id., offence.” at 119. forfeiture which it pre- “[T]he scribes, like all penalties other for desertion, must be adjudged to the convicted person, after trial a court- martial, approved. and sentence For the conviction and sentence of such a court there can Id., be no substitute.” *27 176 since Accordingly, original.) (Emphasis 120. held that the court convicted, so had not been
plaintiff disenfranchised. was not he War post-Civil decisions state court
Subsequent reason- Reily, both in result and Huber v. followed period Severance (1869); Me. 148 Symonds, 57 ing. State v. Matheson, Gotcheus v. (1870); H. 448 N. Healey, 50 v. Pa. Guyer, 59 v. (1870); McCafferty Y.) 152 (N. Barb. 58 (1868). 109 Moffitt, 115 in Kurtz v. significantly, and
Ultimately city whether question with the dealing a case 487, U. S. military deserter, to arrest power had the police officer im- of the sanction the nature recognized both this Court necessity procedural attendant 21 and the by § posed decisions: citing the above approvingly safeguards, re-enact 1998, 1996 and of §§ provisions “The 490, 13 Stat. 1865, 79, 21,§ ch. 3, March the act military serv- deserting the every person subject and penalties, to additional States ice citizenship, rights of of all forfeiture namely, or profit, of trust hold office disqualification mar- by a court upon conviction only take effect can when Strong, Mr. Justice clearly shown tial, as was Pennsylvania, Supreme Court judge uni- Reily, and has been Huber v. 112, 53 Penn. St. mili- byas courts well held the civil as formly Symonds, Maine, 148; State v. 57 tary authorities. Goetcheus v. Healey, N. 448; H. Severance Matthewson, Digest of 420; Winthrop’s N. Y. S., 225.” 115 U. Opinions, Advocate General’s Judge at 501-502. unchanged, except on the books
Section remained as §§ in the Revised Statutes distributed being it with Congress re-enacted until when peacetime violations making inapplicable amendment giving power the President mitigate pun- remit previously ishment 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 had Houses only reference to the penalties operative no deserters, doubt because there peacetime was no draft to evade, since but the 1865 statute dealt without distinction with both desertion and *28 leaving jurisdiction to evade, there is no reason to suppose the quoted discussion below be any ap- less plicable to type the latter of misconduct. The House Committee Report, H. R. Rep. No. 62d 335, Cong., 2d Sess. (1912), which was in quoted its entirety in the Sen- ate Committee S. Report, Rep. 910, No. 62d 2d Cong., 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 punishment most drastic of rights loss of of citizenship .... There in are to-day States thousands of men who are literally men without a country and their will be con- numbers stantly added to until the drastic civil-war measure which adds this heavy penalty to an already punishment severe imposed by military law, is repealed.” H. R. Rep. No. 335, supra, at 2. In reporting the bill out of the Com- on mittee Affairs, Representative Naval Roberts of Mas- its sachusetts, 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, loss of wit, rights of . . citizenship. . [S]uch drastic penalty too entirely severe to be imposed upon an American peace.” citizen time of He detailed the penalties by meted out court-martial for desertion, and then referred to the “additional penalty loss citizen- ship,” which, he concluded, is “a punishment.” barbarous Cong. 48 Rec. (1912). Senator Bristow of Kansas, member his chamber’s Committee Military Affairs, forfeiture to the bill discussing referred also there is said that and “penalty,” as citizenship rights “punished should offender peacetime a why no reason (1912). Cong. Rec. severely.” so passed been had amendment similar A somewhat Presi- but vetoed in 1908 both Houses occasion, on that Report Committee House The dent.33 con- (1908), Sess. Cong., 1st 1340, 60th No. Rep. R.H. Navy of the Secretary from the a letter mainly sisted docu- In both report. annual of his and Congress, to the “punishment,” as a loss of referred he ments Representa- for desertion. “penalties” of the as one more to do once he was 1908, spoke Roberts tive and the punishment” of the “enormity of the under said, itself “Conviction punishment,” “horrible No. message Senate, S. Doc. to the veto President’s approve the his refusal to (1909), indicates that Cong., 2d Sess. 60th discretion placed the that it the fact partly on premised measure was Navy Secretary citizenship rights in the loss of to remit encourage actually *29 feeling it “would that President’s partly the flag against the and heinous crime to commit offenders hardened particular of the was a fault former Id., 2. The at nation.” the power to that was worried The President the measure: form anyone than constitutionally other be vested pardon could power the placing the that disturbed further he was himself, and army against in discrimination Navy would result Secretary of the that however, indicates reason, second The President’s people. always purpose stood serve would law as of the him retention crime— punishment for imposition of by the sought be furthered the President’s statements of the out This is borne deterrence. Secretary of War it. The recommending he veto advisers punishment, part the citizenship a substantial said, “Loss deterring effect in desertions.” very considerable has a doubtless Navy “It is believed that Secretary stated that Id., The at 3. penalty for as a loss regarding the present law the many.” The Ibid. navy a deterrent acts as from the deserters Secretary of agreement his Attorney General indicated Id., 5. Navy.
the existing law citizenship. forfeits That mon- strosity of the law.” 43 Cong. Rec. (1908). Ill id., discussion, entire at 110-114, premise on the was based that loss of citizenship is a punishment desertion, point at issue, as in 1912, being whether it too severe was a punishment peacetime imposition. At point one Representative Roberts “Loss said, citizenship is punishment,” to which Representative Hull of Iowa re- “Certainly.” plied, Id., at 114.
Section 504 of the Nationality Act 54 Stat. 1172, repealed portion of the 1865 statute which dealt with flight from jurisdiction to avoid the draft. However, in connection with provision gov- loss of erning citizenship for desertion, which was enacted (g) § 401 and declared unconstitutional v. Trop Dulles, supra, the President’s committee of advisers re- ported provisions of the 1865 Act had been “distinctly penal in character,” concluded that “They must, therefore, be strictly, construed penalties and the take only effect upon conviction by a court martial.” Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. (Comm. 1939). Print Section (g) was therefore worded so loss of nationality only could occur upon conviction for deser- tion by court-martial. When, however, (j) § in 1944, enacted no procedural such safeguards were built Dulles, in. Trop See supra, at 93-94. Thus, whereas for Justice Brennan concurring in Trop conclusion that expatriation under § 401 (g) was punishment was “but the beginning of critical inquiry,” S., 356 U. at 110, a similar conclusion with reference § 401 349 (a) (10) is sufficient to sustain the holding that they are unconstitutional. *30 34The advisers’ citation of Reily, Huber v. supra, and Kurtz v. Moffitt, supra, support in quoted the suggests statement their
awareness that underlying an conviction is constitutionally mandated. Statutes. Present The
2. confirms of 401 history legislative immediate The legislative of the earlier study upon conclusion, based the The in nature. punitive history,35 that judicial and obviously quite begin with, was, to of the section language understandable an predecessor, of its patterned the Con- submitted was of the bill the draft since fact a letter along Biddle Attorney General gress Committee, Immigration Senate of the Russell Chairman precedent for referred Attorney General which in letter, This statute. of the reenactment bill, was of the enactment for impetus was which the House in both of it support in in full text quoted 1229, 78th Rep. No. H. R. Reports, Committee Senate Cong., 78th Rep. No. S. (1944); 2-3 2d Sess. Cong., margin.36 out set (1944), Sess. 2d of a analyzing character history in of such The relevance Helwig approach by the Court’s is illustrated present enactment considerable 613-619, wherein S. States, 188 U. v. United previous relevant upon the character and relied length it reviewed imposed it, which before the statute determining whether legislation for goods imported undervalued importers who exaction purpose of of citizens emergency state; if birth duty foreign “Under [36] “]y[T he enacting legislation which allegiance to country (2) purposes, (1) byor (4) obtains state dear Senator: of the United existing accepts leave the evading the exclusion becomes naturalization, for the if naturalization he foreign law employment service a thereby above United penalty. a national States country; (3) from the I invite mentioned States would acquires the the armed who ain under in time your attention provide expatriated foreign the United remain purpose. serves foreign forces nationality of such States state; (1) war outside state by operation of for or States, whether of aliens (2) takes during a national armed thereof United expatriation desirability who leave forces an oath for foreign States, only law *31 Report “fully explains purpose stated that it of Senate at 1. letter was Rep. 1075, supra, bill.” S. No. entirely argument couched in terms of an that citizens in country escape military who had left the order to serv- (5) eligible; political nationals of such state are votes election foreign participates plebiscite in a state or in an election or to deter (6) sovereignty foreign territory; mine the over makes a formal nationality diplomatic officer of renunciation of before a or consular foreign state; (7) in a from the armed United States deserts by of the in time of war and is convicted thereof forces United States (8) (U. C., 8, martial; is convicted of treason S. title sec. a court or 801). whereby person any Machinery provided who is denied right privilege citizenship ground he has become or on the may judicial status; expatriated secure a determination of his if of the he is entitled to a certificate he outside United States identity permits which him to enter and remain the United by (Nation the courts States until his status has been determined 903). ality 503; 8, C., sec. U. title sec. Act S. present Department time there
“The files of this disclose that at country many left this citizens of the United States who have are escaping such purpose service in the armed forces. While for the persons prosecution of the Selective Service are liable to for violation they country, Training return to this Act of if and when they proper in addition should lose their United it would seem perform duty citizenship. unwilling their who are States Persons during country its time of need are much less and abandon it to their expatriated worthy citizenship persons who become than are existing grounds. of the legislation which “Accordingly, I recommend the enactment provide (1) expatriation of citizens of the United for the would emergency during leave the or a national States who time of war purpose evading or remain outside thereof for United States (2) States, in the armed forces of service country of aliens who leave from the United States exclusion may Any person be deemed to have become purpose. who for that foregoing provision, en- by operation would be expatriated pursuant the courts his status determined titled to have Nationality Act of 1940. section of the above-mentioned suggested legislation in that “Adequate precedent exists for the provided during a statute was force the First World War was a loss of and that with, dealt be ice should no reference There them. deal with way proper legislation, wrought that would good the societal in the con- morale in soldier any improvement nor to *32 passage gained would be generally duct of war Report Committee The House of the statute. basis. it on the same bill endorsed of the sponsors FBI files that the the fact support referred report El Paso area delinquents” draft showed “over 800 the draft. Mexico to evade had crossed alone who inference 1229, supra, at 2. The obvious No. Rep. H. R. example contained, report, the drawn from the to be is that Con- purpose any of of broader the lack mention inflicting effective retribu- solely with gress was concerned on no and, doubt, draft this class of evaders tion on the floor similarly Thus, situated. others York, the Chair- Representative Dickstein New House, and Nat- Immigration man of the House Committee solely as a means of deal- explained the bill uralization, country knowing ing dodgers “draft who left this they might be drafted possibility that there was they might and that to serve in the armed this war have implied necessary . . .” He that the bill was forces . evading military and of frustrate their “idea service returning over, taking places after the war is their old expatriation any beyond person for the who went the limits of the military United States with intent to avoid draft into the 356). (37 provision repealed by naval service Stat. This section Nationality (54 1172; C., 504 of Code of 1940 Stat. U. S. title 904). sec. proposed foregoing purpose
“A draft of a bill to effectuate the enclosed herewith. Budget
“I have been informed the Director of the Bureau of the proposed legislation program is in accord with the President.
“Sincerely yours, “Attorney General.” in our Cong. society.” Rec. 3261 (1944). Senator Russell, manager who was of the bill as well as Chairman Immigration the Senate Committee, explained it in similar terms:
“Certainly those who, having enjoyed the advan- tages living in the United States, unwilling were serve their country or subject themselves to the Selec- tive Act,- Service should penalized in meas- some ure. . . . Any American citizen who is convicted violating the Selective Act Service loses his citizen- ship. This bill would merely impose a similar pen- alty on those who are not subject jurisdiction to the of our courts, the penalty being the same would result in the case of those who are subject to the jurisdiction of our courts.” Cong. Rec. 7629 (1944).37
The Senate and House debates, together Attorney General Biddle’s letter, brought light to no alternative purpose to differentiate the predeces- new statute from its sor. Indeed, as indicated, Attorney the General’s letter specifically relied on the predecessor precedent statute as for this enactment, and both the letter and debates, the consistent with the character of predecessor the statute, referred to reasons for the enactment bill the which were fundamentally retributive nature. all of When these considerations are they weighed, be, must in the context of incontestibly punitive the nature of prede- the statute, cessor the conclusion that § 401 was itself dominantly punitive inescapable. becomes The legisla- history (a) tive of 349 (10) Immigration and Na- tionality Act of re-enacted (j), § 401 adds 37The “Any statement Senator’s that American citizen who is violating convicted of the Selective citizenship” Service Act loses his apparently a (g), reference to accordingly and should be §401 read in that limited fashion. from conclusion Our that result.38 to disturb
nothing Con- therefore, that history is, judicial legislative the punishment an additional decreed sections in these gress category special avoidance of draft crime the for It can- country. leaves evader cases wherein must safeguards which providing without do this not prosecution.39 a criminal attend Conclusion.
V. unfor- will have today holding our that argued It is has left evader who draft immunizing the result tunate sanction any suffer having to States the United country to this return must conduct, since he against his his crime. and tried apprehended be he can before Rights which Bill of that to answer compelling guarantees procedures and the jealously so guard we man guilty because merely abrogated are rea- expedient other prosecution may escape being without even truth is Moreover, son. position is not in abroad living the evader expatriated, rights as an component his majority of assert the vast rights those to assert If he wishes citizen. American country, to this return he must any real sense fact, In prosecution. himself subject he will doing that presump adding (j) by (10) (a) did amend §401 Section compulsory any provision of comply with tion failure departure from means States laws of service military avoiding purpose of is for the States the United absence from any neces today holding obviates supra. Our See note service. *34 provision. upon this sity passing 39 Franca, 282 v. La 557; States United Lederer, S. Lipke 259 U. v. v. United 417; Mackin Wilson, 114 S. parte U. Ex See S. 568. U. States, S. 228. 163 U. Wing 348; Wong v. United States, 117 U. S. Board 183; v. Slochower Updegraff, S.U. Compare v. Wieman Randall, Speiser 556; 551, 554, Higher Education, S. 350 U. S. 513. U. country evading prosecution,
while he is outside the its by proper largely States refusal to exercise may, United him discretionary power diplomatic protection,40 to afford sovereign power decline to invoke its his behalf. citizenship only Since the substantial benefits of American play upon prosecution, come into return to face the draft who wishes to his citizenship rights evader exercise will inevitably come and pay debt, home his which within power constitutional limits to define. has did, says This is what Mendoza-Martinez what Cort he willing and what do, others have done.41 Thus our holding today handling does frustrate the effective of draft problem evaders who leave States.42 Diplomatic
40 Borchard,
(1916),
Protection of Citizens Abroad
143, 341;
Expatriation
Klubock,
Origin
see authorities cited in
§§
—Its
Meaning,
(1962).
1, 11,
38 Notre Dame Law.
n. 68
See also
States,
Blackmer v. United
186 (j) 401 stated, §§ the reasons conclude,
We constitu- cannot and as such punitive are (a) (10) 349 safe- procedural do the lacking they as tionally stand, recog- We commands.43 Constitution which the guards is a war, in time evasion, particularly draft nize that punished. properly can be and should offense, heinous it has been however, Carta, Magna Dating back men of civilized the lives governing abiding principle or or disseised imprisoned be taken shall “no freeman peers of his judgment . . . without or exiled outlawed 44 only hold is .” we land . . . What law of the byor punishment tradition, with this cherished keeping that, Any of law.” process “without due imposed cannot be mandate the constitutional ignore holding lesser would depend. Therefore essential liberties upon which our are these cases of the District Courts judgments
Affirmed. Douglas Black, while and Mr. Justice Mr. Justice to the views éx- Court, of the adhere joining opinion in which of Mr. pressed in the dissent Douglas, Justice Brownell, S. joined, Mr. Perez U. Black Justice deprive person Congress power has no 44, 79, that cl. citizenship granted the native-born Amendment. Fourteenth sanction, used in the denationalization The conclusion that (a) (10), punishment, obviates need to and 349 is a
§§401 powers within the whether these sections are otherwise determine only if the Congress. question have had to be faced That would punitive foregoing inquiry disclosed reasons other than had present necessitating nationality context, loss of infliction of the; question powers were within the sections in decision whether punitive regulatory scheme, or if the forfeiture of as a obliging appopriate safeguards, had been surrounded powers Congress were within the decision whether the sections apply as a criminal sanction. (1957 ed.) Encyclopaedia Britannica 630. Brennan, concurring.
Mr. Justice *36 agree I with the opinion fully I because join the Court’s to attempted has here that Court’s conclusion of respect sanction penal employ expatriation pursuit whose objective to behavior deemed inimical reasoning assigned powers, within its agree I too, So conclusion is reached. which that employing so constitutionally debarred from Congress is remedy expatriation, of truly terrifying drastic, the apply to been made attempt no certainly where has the Consti- safeguards which of panoply protective full penal sanctions. imposing of as condition requires tution somewhat to elaborate appropriate I However, deem agree with me to impel which considerations Court. in Con the existence granted, has never
This Court exer where its except expatriate to power gress to the appropriate peculiarly intrinsically cise was implicating -inevitably problems of solution serious entanglements recognized the nationality. We have twice and have allegiance, from dual may stem which American of for loss provided statutes which sustained foreign assumption of upon the deliberate Savorg Hare, 299; S. v. U. Mackenzie attachment. recognized States, 491. have S. We v. 338 U. nan United in the internal nationals by American participation our dangerously prejudice could foreign states politics aas expatriation use of allowed the and have diplomacy, precludes recriminations which potent corrective uniquely him provocative act, his moment of disowning, at the or our as our spokesman be taken might otherwise who Brownell, 44. The instant S. Perez v. U. operative. doubts of the to resolve some felt me require do not cases has Perez, For the Court joined. which I correctness Congress’ was to be found expatriation held that never higher pur no available sanctions, common arsenal retribution exact conduct, undesirable curb than pose it. stigmatize it, I. us had before we Dulles, 356 U. S. Trop
In imposed which Act of Nationality (g) of § 401 following conviction nationality American loss held that We of war. in time forces armed deserting joined Brethren my Three unconstitutional. statute analyzed Justice, who Chief opinion That at bar. cases to the applicable equally case terms congressional Trop noted opinion plurality said (g) 401§ under expatriation power to *37 that It concluded power.” “war was relevant in fur- no value have could (g) 401§ under expatriation to deter sanction, aas except war power therance was employed so expatriation that desertion; punish Amend- Eighth of meaning within “punishment” was unconstitutional punishment such and that ment; unusual.1 cruel and because expressed, Trop, separately concurring views My the view I shared the plurality. to those akin were (g) 401§in employed have been could expatriation that insuffi- this an considered and I sanction, only as allowable I believed use—which for its predicate cient relationship unique and affirmative some only where simple was My premise apparent. policy destruc- profoundly so legislation that one fundamental limits within keep must rights of individual tive propo alternatively Troy rested opinion in plurality clear renun only from a result can divestiture that sition However, part the citizen. allegiance on or transfer ciation majority in Perez the Court rejected by been had view since rea principally on the Trop plurality relied Brownell, supra, the the text. soning outlined
of palpable reason and rest upon some modicum of necessity. discoverable I was unable to conclude that (g) § 401 met that elementary test. It was evident that recognizable achievement of legitimate congressional pur- poses through the expatriation device was at best remote; far more promising alternative methods existed had, in fact, employed. been
My Brother Stewart attempts to distinguish Trop along two fronts: He argues expatriation is not here employed “punishment” in the constitutional sense so the reasoning of the Trop plurality has applica- no tion; and he argues that, question punishment aside, expatriation as here employed is a uniquely neces- sary device falling within the my rationale of views separately expressed in Trop.
My Brother Stewart discerns in § 401 an affirma- tive instrument of policy and not simply a sanction must be “punishment.” classed as The policy objective is thought to be the maintenance of troop morale; a threat to that objective is thought spectacle to be the persons escaping a military-service obligation by flight; and expatriation persons of such is sustained as a demonstra- tive counter to that my threat. To mind that would be “punishment” in the purest sense; would be naked vengeance. Such an exaction of retribution would not *38 lose that quality because it was undertaken to maintain morale. it Indeed, only significance is the of expatriation as retribution which render it to could effective boost purpose morale—-the which, to the dissent, removes expatriation as here used from punitive. the realm of the I do perceive expatriation not how employed so would differ from analytically the stocks or the rack. Because
2My (j) equally applicable discussion of is to its re-enact §401 (a) (10) Immigration Nationality ment as of the and Act of §349 in involved the Cort case. con- the up to shore calculated may be such devices the that demonstrating by law-abiding victions the by they not, would unscathed, go not will wicked reachable presumably, or, punitive be view, dissent’s any such agree I cannot Amendment.3 Eighth the that conclusion from the escape I no and see proposition, purpose in is identical today, us before (j), 401§ statute, that as was “punitive” quite is and 401 (g) § Trop. in condemned we case between other distinctions finds dissent The that position its untenable apart Trop, quite from the flight that It is said punitive. not (j) is 401§ desertion, with in contrast draft, the escape country to in its equivocal offense technical a mere be never could the But offender. loyalty of the the implications intel- harm, or stress physical fear unshakable mental aber- combat, moral aversion or lectual inconsistent more no flight in are may result ration which unauthorized Trop’s than was loyalty underlying suggested Again, his post.4 abandonment deterrent some course, have must, of given examples I have The But this they are administered. for which upon the effect conduct expa For punitive. them view, render not, in dissent’s could view, also, the dissent’s (j) must employed in as* §401 triation expa flight, if draft-evading since upon effect deterrent some have con be an undesirable dissent thought were triation purpose which morale-boosting not serve sequence, it could infra.) And, as the 6,n. pp. 192-193 (But see to it. attributed part at least purpose legislative recognizes, the dissent one. deterrent speci training and service” avoiding evading or “purpose of loyalty than graver a reflection (j) no seems fied § to avoid the “intent or permanently” away . . . remain “intent to defini specified in important service” duty to shirk hazardous Military Justice, 10 Code of Uniform codified tion of desertion in § described the conduct fact mere 885. The C.S.U. it will guarantee does not crossing frontier of a requires the
191 element of cumulation of punishments helped ex- pose futility Trop missing here, expatriation in is because (j), § 401 unlike 1401(g), operative becomes prior without a and applies only in conviction, case flight our beyond borders. But the Mendoza-Martinez case, in its collateral estoppel issue, prominently displays what would in any case be expatriation obvious —that under (j) § 401 is cumulative with criminal sanctions draft evasion, for those apply sanctions to fugitives equally as much to sedentary violators.5
Nor can Trop rationally distinguished be on the ground that the application of (j) § 401 only fugitives proves it designed that was fill a necessarily void by left ordinary criminal draft-evasion sanctions. The point, as I it, understand the ordinary sanctions cannot be brought against bear a fugitive declines who to come home; he can but be expatriated while he remains abroad, having without to be brought a tribunal before and for- mally proceeded against. special virtue of expatria- tion, it is that accomplished in absentia. appears, maybe any equivocal less or Trop’s serious more than was A desertion. during resident of might, Texas war, time of cross the border into intending Mexico draft, change evade the then his mind and day. return the next clearly expatriation Such conduct results in (j). under §401 It obvious that any does not reach conduct § not other wise made criminal the selective service laws. 622, 62 Stat. U. S. C. App. (a), part in relevant § identical Train Selective ing and Act of Service under which Mendoza-Martinez provides: was prosecuted, “[A]ny person who . . . evades or refuses registration or any service armed requirements forces or , of this any title ... or who in knowingly manner shall fail* or neglect or perform any duty refuse to required of him under or in execution this title , rules, ... or regulations, or directions made pursuant , shall, to this title . . . conviction district court of the competent United States jurisdiction, punished by imprisonment years for not more than five or a fine of not than more $10,000, both imprisonment such fine and . . . .” *40 process, due procedural of from the denial
Aside appeal the surface scheme, finds rightly the Court scrutiny. closer upon vanishes argument the provides expatriation that true not is simply It con- imposing for necessary instrumentality specially statutes Our draft evaders. fugitive will gressional behavior sanctions criminal severe provide now cost at only can return fugitive The question. avoid way only to punishments; suffering these delinquent draft to away. As is to remain them itself would dilemma of this prospect whom see I fail to deterrent, formidable recognizable, pose effect enhance could expatriation the addition how will who fugitive affect expatriation can all.6 Nor to be thought is whom punished to be not return —for hypothesi, ex has, individual For that designed. specially cannot so away and stay to own on his determined The return. right to of his the withdrawal affected be like Mendoza- those only by felt is measure sting punished, and been already returned have Martinez, who pun- return desire to who Cort, like and those expatriation to whom words, as in other those, ished — to the As other sanctions. with cumulative patently thought particularly it is whom fugitive unregenerate dis- congressional display is but a expatriation reach, power within it is agree that cannot I pleasure. will who those displeasure its express so to if he that must evader consider prospective fugitive draft imprison eventually fine face (1) must criminal he flees, either (1) say prospect To return. (2) be able to will not ment; or he justice as fruitless reject entire criminal simply our deter is will not (2) will not say prospect object. To is an as deterrence so far deter, either— expatriation will not simply concede deter is diplomatic withdrawal assumption that strained except on the difference. work the protection can not return as to destroy rights and the status those who have demonstrated their underlying attachment this country by coming home.
It is apparent, then, that today’s governed cases are Trop no matter which of the two opinions controlling consulted. Expatriation is here employed “punish- ment,” 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.
II. *41 Me. Justice Stewaet’s dissent would sustain as a permissible exercise of the power.” “war appel- The lants in these cases, on the other hand, place their main reliance on the “foreign power.” affairs The dissent sum- marizes the appellants’ arguments under this heading but does not purport to pass on them. Because of my con- viction that § 401 (j) is unconstitutional no matter what congressional power is invoked in its I support, find it necessary to deal with the foreign affairs arguments advanced the appellants. I
Initially, note that the legislative history expounded as by the dissent fails to reveal Congress that was mindful of any foreign affairs problem to be corrected by the statute. The primary purpose seems to me to been have 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 for- eign affairs objective may not necessarily preclude reli- ance on that power as a ground of it constitutionality, does render such reliance initially questionable.
Proceeding to the appellants’ arguments, one encoun- ters first the suggestion that a fugitive draft evader “can easily cause international complications” while he remains cannot States the United because citizen,
an American soil. foreign is on he him while over control exercise respect equally exists obviously, “problem,” Such be cannot justice, American from any fugitive to fugitive only isitYet draft evaders. thought confined impos- therefore, is, It expatriated. are who evaders draft inher- any such acting on was agree sible necessary expatriation as unlikely premise ently described those responsibility avoid as so (j). 401§ designed (j) is §401 appellants, contend
But, Dur- embarrassments. as well embroilments prevent very would our Government argued, wartime, ing return havens foreign to demand impelled feel likely might a demand and such evaders; draft fugitive of our embroilment. leading to country, a “host” seriously offend manifest argument weakness transparent The —its Surely apparent. immediately be inconsistency —must making from itself disable need States the United doing itself to restrain in order demands injudicious may there possibility rests argument so. If that return. fugitive’s to secure urgent need be an risk its attendant made with must so, demand *42 a makes fugitive the expatriating If of embroilment. objective— the defeats forever also it impossible, demand in demand the impelled have would his return —which may be ever fugitives recapturing If place. first the expatria- automatic is obvious necessary, urgently to our interest —which opposed directly only be tion could choose whether free Government the requires all the attendant light in demand, to make not circumstances. It argument. another still have appellants
The to seek obligation is under Government whereas citizen, remains as he long as fugitive the return “Congress has eliminated terminating by any outset further claim that this country would have to the services of individuals, these and has removed all basis for further demands them . . . This simply Expatriation so. may no on a have effect continuing military-service obligation.7 And it is incon- power trovertible that punish draft- initial evasion offense although continues citizenship has mean- while become forfeit. The argued Government has so addressing itself to the collateral estoppel issue Men- doza-Martinez. I cannot understand any obliga- how tion to apprehend can be than other coextensive with the power punish. The Government cannot have it both ways in the same case.
III. appellants urge that, wholly apart explicit congressional power, § 401 (j) may be sustained as an power of a exercise inherent United States sov- ereignty. My Brethren uphold who would the statute have not' adverted this possibility I except, as shall point out, they adopted have in passing certain related arguments.
Preliminarily, it is difficult to see what is resolved the assertion that sovereignty implies power to expatri- ate. That proposition may be admitted yet have no bearing on problem facing the Court.
For, our under Constitution, only a portion delimited of sovereignty has been assigned to the Government of 7As the forcefully Government argues on estoppel the collateral point in Mendoza-Martinez, the requirements selective service apply to resident aliens as well as to citizens. Section (j), as discussed appellants and in Mr. Justice Stewart's dissent in cases, these seems to special reflect a concern with those who flee “for duration,” intending to return peace after is re stored. The argue Government could well that such fugitive, *43 although expatriated, is a subject resident compulsory alien to military service. there say that To arm. legislative is the Congress to sever power sovereignty States in United
inheres into inquiry answer the does citizenship tie Any Congress. to granted been has power that whether eschews delegated which so has been it that argument make appears, it must, text the constitutional to reference things. fitness of the inevitable some sense to appeal its standard. any such far short fall here contentions that Con- fitting it is that suggest to simple too It is extinguish to either gress empowered rising duty” of “ultimate perform to who refuses of one to pause I of crisis. in time defense to the Government’s to whatever credence to lend this Court note 214-215, pp. would, see dissent such criterion —as consequences. far-reaching most with the fraught infra>—is to pay a refusal declare now should For if an abne- no less vote, is testify, to duty, jury do to taxes, to renunciation implied duty of ultimate gation —or I service, military perform to a refusal allegiance —than the dissent’s Court, on this how perceive unable am But the judgment. gainsay such presume could view, accept these willingness to by a not saved is even argument distinguish be- way really is no There consequences. I have duty just a citizen’s failures several tween the military service why evasion explain or to enumerated, consequence, harsh specially be visited should palpably is defection the latter recognize except argued I But, as have the others. than provocative more of a class singled out is conduct context, when another spe- simply because adverse treatment specially the conclusion that escaping nois there cially provocative, Flemming See being administered. punishment opinion). (dissenting 603, 635-640 Nestor, S. U. then, simply concept, duty” “ultimate Pursuit indistinguishable case is that this conviction my reaffirms Trop. *44 The appellants, however, argue fitting it is that empowered extinguish to the one only who not perform refuses to his but who duty, also “repudiates obligation his wider as a citizen to sub- mit to country’s jurisdiction this authority” by fleeing the in country order escape duty. to It once is, difficult again, to see how flight-repudiation theory can be Every fugitive confined draft evasion. justice repudiates United States American authority over him in equal If in measure. the difference lies quality the of the act of evasion, again draft then we are back once punishment.
The appellants assert that government which can- “[a] not exert compel force to perform citizen to his lawful emphasis] duty is, extent, [Government’s to that sovereign as to him.” apparent corollary is that congressionally imposed expatriation under such cir- is, cumstances, in effect in declaratory change of a status already has occurred. But the Government is far from conceding lack authority its fugitive over a draft evader. It informs us that “the government federal has power to order our citizens return, any abroad to lawful purpose,” citing States, Blackmer v. 421. in And, U. S. event, argument proves far much, too for it expatriation would justify of any Ameri- can abroad for any reason who would, equally per- with sons covered 401 (j), § be outside our Government’s power compel performance duty. whom Mr. Justice Clark joins, Harlan,
Me. Justice dissenting.
I agree with and join I, II, III, Parts my IV of opinion, Brother Stewart’s leading to the conclusion that Nationality §401 Act of applicable in 2No. {Mendoza), is constitutional. I agree also his conclusion that, the same reasons, substantive Act, applicable (10) (a) 349§of
provisions however, disagree, I are constitutional. 3 {Cort), No. contained evidentiary presumption view with his am content I (a) (10) unconstitutional. 349§in summary form. reasons my state I do case Cort below opinion I read As 1. (10) (a) *45 on relied Court District the think consid- by several fortified is view This presumption.1 was presumption of the constitutionality the (i) erations: both sides briefed was complaint in Cort’s attacked presumption (ii) the text Court; District the Court District the opinion in the forth set was itself the two or before only page at 684) Supp., F. (187 in these (iii) 1); and margin (note quoted extract citizenship claimant here, “When, said: 1 The District Court upon the Gov burden the States in the United his birth establishes the unequivocal evidence convincing and by clear, prove to ernment Dulles, 356 Nishikawa expatriation. upon to show relies it act burden. met this has Government think the We 129, 133 .... U. S. period. limited was for it abroad plaintiff went In when Medical Harvard at the position accepted a 29,1952, he On December he had that 1953, and indicated part of begin latter to School States. transportation to the prior arrangements for made he learned until country steadfast was to return intention His that felt authorities January 31, that shortly school after prob he that teaching, and 'essential’ him not declare they could 1953, that February 10, on them He wrote drafted. ably would he was board the draft ‘something definite’ heard he until pre or be foolish may prove to that a decision to take ‘reluctant draft board July 3 in 1953 4, and February 9, June On mature.’ examination, and thereafter physical report for notices him sent The 14, 1953. September report induction him ordered We remained abroad. compliance but response or no plaintiff made the armed avoid service was to purpose his convinced are forces. constitutionality of the case is in this question left only “The was plaintiff maintains Government under law Supp., at F. 686. citizenship.” his divested difficult to circumstances believe that the court, lower composed experienced of three judges, either inadvert- ently ignored the presumption upheld its validity sub silentio. likely The more is that finding conclusion evidence sufficient the aid of without the presumption, the lower court saw no for reaching need a second constitutional issue. viewing
So the District opinion, Court’s I think the evi- dence quite was sufficient under the “clear, unequivocal, and convincing” standard of Schneiderman v. United States, 320 S. 118, 135, U. support the finding below that Cort had remained abroad for purpose of evading military service.2 charged Cort going was not with abroad in order to avoid mili- y service,
tar solely but remaining abroad to avoid induction. convincingly evidence shows purpose remaining Cort’s abroad, England first in and then in Czechoslovakia, to avoid the draft. *46 May On 1951, 29, Cort left the accept United States to a research fellowship University at the Cambridge, England. days A few registered before his departure he “special registrant” as a under the Doctors September Draft Act. 11, 1952, On he was classified I-A (medical), military available for Meanwhile, service. in late 1951 requested Government had passport Cort surrender his except invalidation, for return to the United States. He did not do this. On 29, 1952, December by Cort accepted, Eng- a letter sent from
land, teaching position a at the School, indicating Harvard Medical his intention to return to the States in late June 1953in order to start August 1, work on day 1953. On the same he wrote to also Advisory Massachusetts Medical Committee, stating that he begin would teaching July 1953, Harvard in requesting and draft ground deferment on the that “civilian this . . . function shall be my far more country essential to military than service.” January 29, On 1953, Harvard authorities advised the Medical Advisory they regard Committee that did teaching position not Cort’s as essential teaching, to medical February 4, on 1953, the Com- mittee recommended to the local draft board that Cort be considered wrong constitutionally addition, nothing I see
In2. related face or as on its either presumption with this consistently been have this presumptions Similar case. proof the standard where statutes, in criminal sustained denationalization stringent than no less certainly States, 268 U. S. Hem United Yee g., e. See, v. cases. States, 413; Hawes v. 276 U. &. Casey United v. 178; States, Ting United Fong Yue v. cf. Georgia, S. 1; 258 U. that requirement .there regards As 698. S.U. proved the fact connection between a “rational must States, Tot United presumed,” fact the ultimate cry far surely presumption 463, 467, 319 U. S. January 1953, 31, military service.” Between active “available for and Cort Harvard Medical School May 1953,the Dean of the 29, apply suggesting exchanged Dean Cort several letters —the teaching position was surprise expressing that the commission, Cort his draft heard essential, until he had and that not considered may prove to be a decision he “reluctant to take board was premature.” foolish or board' his draft February 9, 1953, informed local Cort was
On ordered to request denied, and he had been was his deferment days receipt of the physical within 30 report examination for a again sent July 3, 1953, he was 4, 1953, June and on letter. On On report physical examination. directing for a him to notices Sep- report for induction August 13, Cort was ordered notwithstanding report that in the did not tember 1953. Cort his draft concedes, notices from received these interval, he he had board. permit England August his residence 8, 1954, after On up residence in Office, took Home Cort renewed the British 7, 1959, April did he make until
Prague, Czechoslovakia, where not passport. any application for a United States certainly entitled background Court was Against this the District *47 long for draft efforts, after his indictment Cort’s belated discredit military well as his authorities, as with the evasion, to come to terms investigation abroad to avoid self-serving statements that he remained prosecution possible alleged affiliations his Communist as to under the Act. Smith the Tot case.3 in constitutionally
from that held invalid only And we are presump- since concerned here this instance (if tion as in applied indeed it was in fact applied below or must now be resorted to in this Court), in other suggest it is no answer to appli- instances cation of presumption might be unconstitutional.
Thus (a) (10) whether or not the is presumption the Cort in involved I case, order of believe the Mendoza case, denationalization in there, as well as upheld.4 should be Stewart,
Mr. Justice with whom Justice White Mr. dissenting. joins, opinion Court’s is its lengthy, simple: but thesis is
(1) The withdrawal of citizenship which these statutes provide “punishment.” (2) Punishment cannot con- stitutionally be imposed except after a criminal trial and (3) conviction. The statutes are therefore unconstitu- 3 presumption remaining purpose A that one is abroad with a military avoiding service, arising sojourn from continued abroad military certainly duty, the face of an uncontroverted call to bears presumption wanting no resemblance whatever to found Tot. presumption possessed by That was that firearms or ammunition one previously violence, fugitive convicted of a crime of or who was a justice, only commerce, were received not interstate but also subsequent statute, presumption enactment of the relevant arising solely showing person already from a that such had once been presently possession convicted of a crime of violence and was or ammunition. firearms premises my proper Even on the Brother course Stewart, would be to remand the Cort case to the District new Court trial, not, proposes, pro as he to set aside the basic denationalization ceeding. being This not a case of the District Court called simply record, to review for error an administrative but one in which required try issue de the denationalization novo. In these there be no need circumstances would to have the administrative proceeding again. start all over
202 inescap- is the conclusion syllogisms, As with all tional. agree with But I cannot correct. if are premises able citizen- the divestiture major premise the Court's —that punishment is prescribe these statutes ship which term.1 of that sense constitutional
I. language of its sweep of some the broad Despite hold that does not I understand it as opinion, the Court inherently and is citizenship involuntary deprivation safeguards requiring the always penal sanction — would overrule at a determination trial. criminal Such in this Court. precedents three decisive least Congress had ago the Court held Nearly years 50 citizen native-born to denationalize a power constitutional here. to reside foreigner but continued married a who Hare, The Court there 239 S. 299. v. U. Mackenzie citizenship of argument “that rejected explicitly States, the United to her birth in incident plaintiff States, and laws United under the Constitution and, immunity which could privilege a right, it became punishment except from her as away not be taken S., 239 U. voluntary expatriation.” by her crime or a native- denationalize power 308. The to/ reaffirmed in trial, was a criminal citizen, without born And States, 491. less S. Savorgnan U. v. Brownell, 44, S. 356 U. ago, Perez v. years than five opinion in an congressional power again upheld Court notion, advanced in rejected the unambiguously Kennedy Mendoza-Martinez, 2, involved in No. v. The statute amended, 746. Nationality 58 Stat. Act of of the 401§ Cort, (a) (10) No. Rusk The statute involved in § (10). (a) Nationality 1952, 8 S. C. Immigration Act of U. practically identical. provisions of these statutes are The substantive objection jurisdictional and the agree I Court merit, and that estoppel 2 are without No. claims of collateral be determined. validity must of both statutes therefore constitutional that case the dissenters,2 that the Mackenzie and Savorgnan only decisions stand for the proposition may voluntarily relinquished or abandoned expressly either conduct. In short, it has been *49 years for almost 50 Congress established under some circumstances may, providing without for a criminal trial, expatriation make the consequence the voluntary conduct of a United States citizen, irrespective of citi- zen’s intention subjective to renounce his nationality, and too of irrespective his awareness that denationalization will be the result of his conduct.3
II. position taken the Court today simply that, Mackenzie, unlike the statutes in Savorgnan involved and Perez, the statutes at issue in the present employ case deprivation of penal as sanction. In support position, the Court devotes many pages of its opinion ato of a quite discussion law, different enacted in in 1865, amended 1912, repealed in 1940. That provided law4 “rights forfeiture of the of citizen- ship” 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 draft into the military or naval duly service, ordered . . . .” That statute, the Court correctly says, “was in terms S., (dissenting opinion).
2 356 at U. Brownell, In Perez pointed the Court provision out that the the Fourteenth persons Amendment that “All born or naturalized in States, subject the United jurisdiction to the thereof, are citizens of the United States . . .” does power Congress not restrict the legislation. enact denaturalization It was there stated that “there nothing terms, context, history pur or the manifest pose of the Fourteenth drawing Amendment to warrant from it a power restriction possessed by otherwise Congress to with citizenship.” draw S., 356 U. n. 3. 3, 1865, Act of March 21, 13 Stat. 490. the statute’s agree and I with the Court
punitive,” subsequent judicial decisions legislative history, as well as punitive- that the law was construing makes it clear it, —(cid:127) upon those convicted imposing punishment additional mentioned.5 either the offenses we have before us statutes cases, however, In these In 1952, respectively. were enacted in 1944 which nothing gained I think is to be construing statutes, these legislative history quite of a different law enacted reports nor from different quite Congress which that law in 1912. of still another amended legislation at issue the cases Unlike 1865 law, punitive.” not “in And there is noth- before us is terms ing history legislation persuades of this me statutes, though penal, that these terms nonetheless embody purpose Congresses which enacted them *50 safeguards criminal without the impose punishment a criminal trial. the two sections of the Nationality
Unlike Act 1940 in which were issue in Perez v. Brownell6 and Trop v. Dulles,7 (j) genesis § 401 did not have its in the Cabinet Committee’s draft code which President Roosevelt sub- mitted to Indeed, § 1938.8 401 was the product totally of a different experience environment —the of a engaged global nation a war. February Attorney 16, 1944,
On General Biddle ad- a dressed letter to the Chairman of the Immigra- Senate 5 predecessor (g) Nationality This was the law direct of 401 of the § providing penalty Act of the additional of loss of deserting those convicted court-martial of the armed forces (a provision subsequently Trop in time of war invalidated in v. Dulles, 86). 356 U. S. 6 (involving (e)). 356 S. 44 U. §401 7 (g)). (involving S. 86 401 U. § Brownell, 52-57; Trop S., Dulles, See Perez v. at U. 94-95; S., Nationality U. Codification of the Laws of the United States, pt. 1, Print, Cong., H. R. Comm. 76th 1st Sess. 68-69. circumstances which calling attention to Committee, tion War in World the institution of the draft had arisen after be- subsequently legislation which suggesting II, letter stated Attorney General’s (j). came 401 part: of en- desirability to the
“I attention your invite for the (1) provide would acting legislation which inwho States citizens of the United expatriation of leave the emergency during or a national time of war pur- for the remain outside thereof States or United forces of in the armed evading pose of service (2) for the exclusion States United country for the who leave of aliens States United purpose. above-mentioned States, a national of United existing law “Under naturalization, becomes or by birth whether (1) if obtains law he by operation expatriated oath (2) takes an foreign state; in .a naturalization (3) serves foreign country; allegiance to thereby acquires if foreign state he forces of a armed (4) accepts foreign state; nationality of such only for which foreign state under employment ain (5) votes eligible; are of such nationals state participates or foreign in a state election political sovereignty to determine plebiscite an election renuncia- makes a formal territory; (6) foreign over or consular diplomatic nationality before tion of (7) de- foreign state; in a States officer *51 States of the from the armed forces serts mar- a court by and is convicted thereof time of war 8, title (U. C., of treason S. (8) or is convicted tial; whereby person Machinery provided 801). sec. on any right privilege is denied who may expatriated has become that he ground if status; and of his determination judicial secure ato entitled he is of the United States he is outside permits certificate of him to enter and identity which remain in his has been the United States until status 1940, (Nationality determined the courts Act 503; C., 903). sec. S. title sec. 8, U. Department
“The files of this disclose that at the present many time there are citizens of the United country States who have left this for purpose of escaping service in the armed forces. While such persons prosecution are liable to violation of the for Training Selective Service and Act of if and they when country, return it would seem proper they addition should lose their United unwilling who citizenship. States Persons are perform duty their country to their and abandon it during worthy its time of of citi- need are less much zenship persons than are expatriated who become existing grounds. of the
“Accordingly, I legis- recommend the enactment of lation which provide (1) would expatriation citizens United States who in time of war or during a national emergency leave the United States or remain outside thereof for purpose evading service in the armed forces of the United (2) States and for the exclusion from the United States of aliens who leave this country pur- pose. Any person may who be deemed to have expatriated become by operation of foregoing provision would be entitled to have his status deter- mined pursuant courts to the above-mentioned section of the Nationality Act of 1940.” 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 re- ports nor the limited debate on the in Congress measure
9 Rep. S. Cong., No. 78th 2d Sess. 2. *52 And legislative action.10 to the gloss adds substantial Immigra- (a) (10) of the history of 349 legislative the directly of the statute Nationality Act and tion us, before of the two cases now second involved Report particulariza contain some does The House Committee is, legislation “It of addressed: problem to which the tion of the many left the United citizens or aliens have course, not known how military Department evading purpose service. of States for Texas, in the of in the western district Justice discovered that of delinquents alone, were over draft vicinity El Paso there Investigation office, born Bureau of Federal recorded in local into citizens, the border country who had crossed and, therefore this expectation evading draft, purpose but with Mexico for the after the war.” to resume residence returning to the United States explaining the In Cong., 2d Sess. 1-2. Rep. 1229, 78th H. R. No. Dickstein, Representative Whole, House Committee bill to the “I Immigration, stated: on Committee House the Chairman and legislation to denaturalize classify piece of as a bill would this country knowing that dodgers who left this draft denationalize all they might in this war and be drafted possibility that was a there forces, forces, naval they might serve in the armed have to We are get out of such service. marines, effort to or the war; country great has a stake and our American citizens all left this men who have found hundreds of nevertheless, we have American parts Mexico and South country go other to certain returning evading military service and of with the idea countries society.” taking places in our their old over, the war after Cong. Rec. 3261. Senate, Russell, the Chairman Senator explaining the bill to the In “The . . . bill . . . Immigration, stated: Committee Senate of the United States whether citizens persons, class of relates to the in order to avoid departed the United States aliens, who under the Selective of the United States in the armed service forces that on one before the committee indicated Information Act. Service through departed persons from the United States day several hundred either Tex., alone, in order to service in city avoid Paso, of El selection States, to avoid Army Navy of the United or the any person provides This bill law. under the selective-service citizen, and States, or an American national of the who is a departed States to from the United stress in time of national who *53 of the purpose to the illumination no additional gives provisions the substantive Congress, since Eighty-second 401 § a recodification were but statute of that Act.11 1940 is punitive not a statute of whether or question disability imposes whether depends upon ultimately or whether deterrence, or vengeance purpose for the regula some broader an incident to disability is but Missouri, Cummings v. 277, Wall. tory objective. See Lovett, 308-312; 322; United States v. 303, 328 U. S. deprived country serving country, his shall to avoid another nationality. his subject military provides alien who is
“It further Act, who left Service service under the terms of the Selective military service, be forever country shall thereafter to avoid to the States. barred from admission United anyone object President, could to such a I do not see how “Mr. country and refuses to serve An who remains in the bill. alien laws, prosecuted under our forces in time of war the armed penitentiary. compelled term in the guilty he is to serve a if found citizen Service Act an American the terms of Selective Under do is likewise when he is called so who refuses to serve enjoyed Certainly who, having subject prison those to a term. unwilling living States, were to serve advantages in the United Act, country subject themselves to the Selective Service their deprive penalized This bill such in some measure. would should be citizenship, and, persons citizens of the States of their as are United aliens, bar them from admission into the in the case of would forever violating Any who is convicted of States. American citizen United merely citizenship. This bill would Act loses his the Selective Service subject jurisdic- penalty impose those who are not to the a similar penalty being courts, the the same as would result tion of our jurisdiction subject who are to the of our courts.” 90 case of those Cong. Rec. 7628-7629. (10) (a) presumption that failure to com did add a Section compulsory any provision laws of the ply service departure from or absence from the United States means military pp. 215- purpose avoiding service. See is for the States 219, infra. Dulles,
Trop v. S., 356 U. See 107-109. generally, Flemming v. Nestor, 363 U. S. cf. De Veau v. 603, 613-617; Braisted, 363 U. S. 144,160; Party Communist v. Subver sive Activities Control Board, U. S. In 83-88. commenting on the nature of this kind of inquiry, Court said in Flemming Nestor, initially “We observe that only the clearest proof could suffice to establish unconstitutionality of a statute on such a ground. Judi cial inquiries Congressional into motives are at best hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitu tionality with which this enactment, any other, like comes *54 to us forbids lightly us to choose that reading of the setting statute’s which will invalidate it over that which will it.” save S.,U. at 617.
In light the of the standard enunciated in Nestor, I can find no clear proof that the prime purpose of legisla- this tion punitive. To be sure, there is evidence that the deterrent effect of legislation the was considered. More- the over, attitude some members of Congress toward those whom legislation the was intended to reach was obviously far from neutral. But the fact that the word “penalty” was by used an individual Senator in con- the gressional debates is hardly controlling. As The Chief Justice has so wisely remarked, “How simple be would the tasks of constitutional adjudication and of gen- law if erally specific problems could be by inspection solved of the pasted labels on them!” It seems clear to me that putative these indicia of puni- tive intent are far overbalanced the fact this legislation dealt with a basic problem of wartime morale reaching far beyond for any concern individual affected. The legislation applies only those who have left this
12Trop v. Dulles, S., 356 U. at 94. of avoid- purpose the of it for outside or remained country understood reasonably can Congress draft. ing the such country the flee who those saying have been law the disobey simply than more do purposes express They sanctions. criminal imposition and avoid nation, seek- their from entirely themselves disassociate aegis under obligations their wartime refuge ing have reasonably could Congress sovereign. of another who volun- group, of such existence that the concluded States their United aside demonstrably put tarily and extremely have could duration,” “for the citizenship not war effort and thus morale upon effect adverse millions enlisted forces, but armed only During front. civilian on the nation of their the defense re- were there of 401§ consideration draft fugitive expectation references peated country this return would living abroad then evaders fruits enjoy and to to resume the war after known morale wartime effect victory. precisely perhaps group, while of such existence could efficiency, military impaired measurable terms Denational- considered substantial. obviously have been was a rational voluntary expatriates class ization of this removing its visible problem dealing way of find, as cannot I purpose, of this broader light In cause. *55 by primarily motivated § 401 does, that the Court who those individuals vengeance upon desire to wreak the Rather, military service. to avoid country fled the regulatory same kind precisely to me seems statute upheld this Court efficacious, which rational measure, Brownell, supra.13 Perez v. in objections against similar Congress saying that today suppose Court that the 13 I cannot safeguards of criminal without the impose denationalization can marrying alien— unexceptionable trial for conduct —like that foreign voting election —but in a relatively innocuous—like reprehensible. which is for conduct do so cannot III. of these find the terms I cannot stated, the reasons
For close to anything history legislative in their statutes or congressional purpose the basic that proof” “clearest alone does But that impose punishment. was to As with in these cases. inquiry answer the constitutional a law which power, congressional exercise any other constitutionally citizenship, to be deprivation imposes to an affirmative relationship a rational valid, must bear Congress under the Constitution. by power possessed legislation, this enacting submit appellants The one drawing rationally have been Congress could power: constitutional recognized of three sources con- for the effective legislation to implied power enact wage war, to express power foreign affairs; duct of defense; and for the common provide and to armies, raise sovereignty. the inherent attributes like the statu- legislation, this appellants argue The Brownell, supra, has a in Perez v. tory provision sustained They point out that foreign affairs. relationship direct country if could arise complications international draft effect the return of citizen evaders attempted to might nation sovereign which that requests foreign grant. appellants The insist unwilling resulting embroilments possibility of international problems by fugitive fanciful, caused draft evaders is not background pre- of international incidents pointing to the 1812, and ceding long history, later War country's of this century, nineteenth involvement liability of our naturalized other nations over the asserted obligations imposed their military citizens to native Expatriation countries.14 of those who or remain leave Moore, Digest III (1906), See of International Law 436- §§ 440; Question Expatriation Tsiang, Prior to America- 44-55, (1942), 71-72, 78-84. *56 as their draft evasion States from the United away attrib- reasonably be might say, appellants purpose, only prac- that this was belief congressional uted to problems international potential these way nip to tical Brownell, 60; atS., 356 U. Perez v. Compare. the bud. opinion). (concurring Dulles, S., at 106 356 U. Trop v. unnecessary pur- to case, it is I take of this In the view regulate power as to whether inquiry sue further the con- for denationalization justify could foreign affairs Congress apparent I think it For question. duct power, drawing upon another was enacting the statute reaching. far broad and “provide of the Constitution was purpose
A basic ex- the Framers end, defence.” To that the common for powers Congress compendium conferred pressly 15 Re- power.” called the “war have come to be national scope magnitude ultimate sponsive to war success- power power wage the war is “the need, Powers under Hughes, Evans War fully.” See Charles Rep. 232, A. 238. Constitution, A. B. drawing upon Congress It seems to me evident To legislation before us. power when it enacted the can underlying purpose legislation of this sure, be have Power .... “The shall grant Marque Reprisal, and make War, Letters of “To declare Water; concerning Captures on Land and Rules Money Appropriation support Armies, but no “To raise and Years; longer be Term than two shall Use Navy; provide and maintain a “To Regulation of the land Rules for the Government and “To make Forces; and naval carry- proper necessary which shall
“To make all Laws Powers vested foregoing Powers, and all other ing Execution into States, or in of the United in the Government by this Constitution I, 8, 11,12,13,14,18. els. thereof.” Art. Department or Officer *57 hardly point isolating single, pre- refined to the of one objective. cise potential upon The desire to end a drain this country’s military manpower was in clearly present legislators the minds of the and would itself have con- purpose stituted a having sufficient rational nexus to the exercise of the war power. Indeed, there is no more fundamental of aspect power this broad than the build- ing and of maintaining armed forces com- sufficient mon Cases, defense. Selective Law S. 366; U. Draft States, see Falbo v. United But, 320 U. 549. S. event, the war power clearly supports the objective removing a corrosive upon influence the morale of a na- tion at war. As the Court said in Hirabayashi v. United States, 320 81, 93, power U. S. the war every “extends to matter, activity and so related to war as substantially to affect its progress. conduct and power The re- stricted to winning of victories in the field and the repulse of enemy every forces. It embraces phase national defense, including protection of war materials and the members of the armed injury forces from and from dangers which attend the rise, prosecution prog- ress war.” States, See Lichter v. United S. 742. U. legislation This is thus quite different from the statute held Dulles, invalid In Trop supra. that case there were not five members of the Court who were able to find “requisite rational relation” power between the war (g) the 1940 Act imposing de nationalization wartime deserters from the armed forces. As the concurring opinion pointed out, the stat ute was “not limited in its effects to those who desert a foreign country or who flee to another land.” 356 S.,U. at 107. Indeed, “The Solicitor General acknowledged of forfeiture would have occurred if entire had transpired incident country.” S., 356 U. at 92. It emphasized was that conduct far short of dis loyalty could technically constitute the military offense harshness that the desertion, 112, 113, S., at 356 U. equivocal potentially so for conduct of denationalization power asserted where consideration important “an relation slight or tenuous only has expatriate at 110. S., 356 U. granted power.” byis hand, the other us, now before legislation draft guilty those inapplicable completely its terms it is ex- States; in the United remained have who evasion criminally or not ever those, whether aimed clusively in another land or remained gone to who have convicted, *58 the Moreover, military service. duty of escape to never be could reaches legislation conduct which clearly “refusal always and is nature, in but equivocal citizenship.” American duty of this ultimate to perform opinion). (concurring Dulles, S., at 112 U. Trop v. IV. the substan- made as to be point one more to
There in these cases. before us legislation provisions of tive exen congressional suggested that have Previous decisions ato further may subject be expatriate power to cise of of the kind upon limitation constitutional restriction —a of denationaliza- basis activity may be'made is a measure. drastic tion. Withdrawal government endows to Moreover, expatriate the power it society which limit the to authority define and to responsible. and which represents power Congress’ never Court has held This area which every unsparingly used may expatriate decisions previous to act. Our power general it has all involved involuntary denationalization upholding allegiance to this inconsistent with undiluted conduct at issue these legislation But I think country. compass of those deci- clearly within the comes so cases unnecessary inquiry in this case an to make sions as what the limitation expatriation power ultimate may be. legislation
The conduct to which applies, involving only of flight the attribute or absence from this coun- try in of war or national emergency, flight time but or express purpose evading duty absence helping to defend this an country, unequivo- amounts to conspicuous nonallegiance, cal and manifestation objectively subjectively. whether considered Ours is said, of the citizen As this has tradition soldier. Court government duty and its very conception just “[T]he obligation of the reciprocal to the citizen includes the and the military citizen to render service case need Cases, right it.” Law 245 U. S. compel Selective Draft of con- improvident It is exercise hardly at 378. have to disown those who power stitutional need. in time of ultimate disowned this Nation V. provi- I believe the substantive stated,
For the reasons (a) (10) and of 349 § of the 1940 Act sions of 401 In addition to constitutionally valid. the 1952 Act are *59 (10) (a) declares: however, § 349 provisions, its substantive to com- paragraph failure purposes “For the of this compulsory service ply any provision presumption raise the shall laws of the United States from or absence from the United departure that the avoiding evading or purpose for the States was or naval air, in training military, and service the of the States.” forces the statute evidentiary presumption which I think the fatally infected the and that it clearly invalid, is creates Henry had Joseph that Cort determination administrative citizenship. lost his statutory pre- this mention did Court District
The know how impossible therefore, is, sumption, Indeed, the if at all. it, upon relied court much the pri- oriented case in this attention Court’s District basic and the jurisdiction of its the issue marily towards provisions of the substantive constitutionality issue of (10) (a) holding that of its In view (10). (a) §of 349 give did not understandably the court unconstitutional, devot- presented, issues factual to the attention exhaustive whether question paragraph single short a ing but statute. within the brought him had conduct Cort’s at 686. F. Supp., reviewing agency in final clear that it is
But presumption heavily relied Department State citizenship. his lost Cort had determining that in its memo- Nationality, Loss on the of Review Board determination initial administrative affirming the randum failing “[b]y citizenship, stated had lost his that Cort board, his local him sent notices with the comply men- presumption himself brought upon Dr. Cort absence his continued (a) (10), in Section tioned evading or purpose was for United States from the military, air, naval training and service avoiding should the Board Even States. of the United forces if be overcome show- could that the presumption consider other a purpose abroad remained person ing that the evidence service, military avoid the than to not show does whole, as a taken case, Dr. Cort’s than to avoid purpose other abroad he remained of the Board’s added.) One (Emphasis being drafted.” not overcome Dr. Cort has was “that findings specific of Section last sentence raised presumption Nationality Act.” Immigration (a) (10) Randall, S. 357 U. Speiser As was said law- commonplace that outcome “it 520-521, *60 rights depends legal hence the suit —and vindication — than the facts appraises factfinder often how the more on interpretation or a statute a construction of disputed by which procedures Thus the precedents. of a line of importance determined assume facts of case are lawof rule validity of the substantive great as the fully at rights important And the more applied. to be safe- procedural must be the important more stake the surrounding rights.” those guards wholly is (a) (10) by § created presumption hold that of the Court odds with the decisions Government is heavy burden cases such as this convincing, by clear, expatriation an act of prove Landon, S. 350 U. v. evidence. Gonzales unequivocal This standard Dulles, 129. v. 356 U. S. 920; Nishikawa not to be ambiguities are “evidentiary commands that Dulles, 356 v. Nishikawa against the citizen.” resolved at 136. S.,U. evidentiary whether this to consider pausing
Without me that the is clear to one, it is constitutional standard constitutionally question here in statutory presumption connection “rational there insufficient invalid because presumed.” and the ultimate fact proved fact between “A statute States, 463, 467. 319 U. S. Tot v. United operates arbitrary or that that is creating presumption the due repel violates opportunity deny a fair Manley Amendment.” of the Fourteenth process clause federal, cre- statute which A 1,S. 6. Georgia, 279 U. Fifth no less violative presumption is ates such a may not fiat legislative “Mere process. due Amendment involv- of issues fact in the determination place take is “essential Ibid. It property.” life, liberty ing the fact between connection rational some there shall be presumed, ultimate fact proved and not be another shall proof fact from of one inference *61 arbitrary mandate.” a purely be as to so unreasonable 43. 35, S. 219 U. Turnipseed, Co. v. C. R. Mobile, & K. J. Randall, supra. v. Speiser Cf. with notices comply to abroad person a failure of
The evi- relevant obviously be would his board draft sent or gone had person that whether determining in dence military serv- avoiding of purpose for the abroad remained a creates It much further. goes the statute ice. But comply to from failure act expatriating anof presumption laws” service any compulsory “any provision with violations nature regardless abroad, a citizen originally in purpose of his of the innocence regardless serv- compulsory various The States. leaving United pro- a multitude contain States United ice laws insignifi- relatively or technical many of them visions, pro- single such aof from the violation To draw cant. its with solemn expatriation, presumption vision irrationality so in engage think, I is, consequences, impermissible.16 constitutionally gross as sole Cort’s case that in this record from the clear It is accept was to in 1951 States leaving United purpose of Cam- University Fellow as Research position clear makes also record The England. bridge, law, Service the Selective up under called was 1946 Cort because as 4F and classified examined, physically Cort shows record further disability. physical Act, Draft Doctors under registered voluntarily to do board his draft arrangements making special registration under date effective in advance so Cort Europe. he left days before a few statute, belief, his it was swore that he in which an affidavit filed 86; 79, Western Rfg. Co., 241 S. Sugar U. American v. McFarland v. 642; Morrison 639, Henderson, 279 U. S. v. R. Co. Atlantic & Alabama, S. Bailey 219 U. v. See California, S. 90. 291 U. 61, 81. Co., 220 S.U. Gas Lindsley Carbonic Natural 239; the induction disability, physical of his light good was issued England received which he order purpose its but that service, military his to secure faith return him to to force instead Committee the House investigated by to be States under the Smith prosecuted Activities Un-American arrange with Selec- efforts repeated made has Act. He *62 belatedly, albeit fulfillment, for the officials tive Service wife in 1959 his if and any, military obligations, of his the officials of met with States to the United came rea- very purpose. system that Service Selective was, passport States Prague for a United applied he son States to United return the he could so that swore, he for draft evasion indictment to the respond in order to fulfill Massachusetts him in against now pending ap- Cort if When any. obligations, Service his Selective there, American Consul Prague passport, plied that writing opinion his him, stated who interviewed statement sworn Cort’s to disbelieve no reason he had avoid States the United outside not remained he had as disclosed evidence I mention this military service.17 new why I think a indicate only to record present stat- weight from the hearing freed administrative any prejudg- imply order, utory presumption decision administrative ultimate I think the what ment of be. should judgment Cort, I vacate would Rusk
In No. v. instructions case with and remand District Court nationality of loss the certificate void null and to declare the con said, “Without evidence Consul The United States state Cort’s Dr. reason to doubt has no trary, the consular officer purports to answer affidavit ments made attached jurisdiction remained outside departed from and charge he training avoiding evading or purpose of for the States of the United the United States.” forces of in the armed and service Secretary State, issued to so that Cort for a an adminis- application passport, Cort’s renewed hearing evidentiary could be free of the had, trative (a) In presumption (10). the event that such proceedings administrative should in a finding result Cort had his States citizenship, lost he would to a de novo judicial hearing18 entitled in which the Gov- proving ernment would have the burden of act expatriation by clear, convincing, unequivocal evi- Landon, dence. Gonzales 920; v. S. Nishikawa U. Dulles, v. S. 129. U. Kennedy Mendoza-Martinez,
In No. I would judgment reverse the the District Court.
18Ng Fung Strecker, White, 276; Ho v. 259 U. S. Kessler v. 307' Rogers, App. 22, 35; Frank 253 F. 2d U. S. U. S. D. C. 889.