*1 theory recovery friendly appears stockholders friendly enemy stockholders of equally applicable corporations. should be affirmed. Appeals
The Court UNITED STATES SPECTOR. Argued April 1952.
No. March 1952. Decided Robert L. Stern argued the cause for the United States. him Perlman, With on the brief were Solicitor General Attorney Assistant Mclnerney, General Beatrice Rosen- berg and Kenneth C. Shelver.
John W. Porter and A. L. argued Wirin the cause and filed a for appellee. brief Douglas opinion delivered
Mr. Justice Court. *2 amended, 1917, Act of as Immigration
Section 20 of the (Supp. C. 553, 1010, 39 Stat. 57 Stat. 64 Stat. to the IV) designed expedite provisions contains § that the deportation (a) provides of aliens. Section 20 “to the deportation direct the Attorney General shall him willing accept if it to country specified by alien, territory.” Attorney into Otherwise the General shall its specified of deportation any direct the to one of a series impracticable, countries or if to of them is deportation any any country or then to which is inadvisable, impossible, willing accept (b) grants the alien. Section 20 aliens Attorney powers supervision General over been against deportation outstanding whom orders have penalties for more than six months and fixes for violations regulations Attorney pre- which the General has (c) provides any against scribed. Section 20 a specified outstanding whom order of “who willfully depart shall fail or refuse to from the United period within a of six months from States the date such deportation, order of or from the date of the enactment of Control of 1950, Subversive Activities Act whichever later, willfully timely is the or shall or to make fail refuse good in application travel or other documents faith for necessary departure, to his . . . shall conviction of a guilty felony, imprisoned and shall be not more added.) . . years (Italics than ten . .” (the italicized) in- provision (c) latter of 20 § Appellee volved here. is an alien who came this in country from Russia 1913. An order of deportation him in against was entered 1930 advocacy reason of his of the overthrow of the Government force and violence. An against him, indictment was returned two counts him charged willfully failing refusing good faith for travel other timely application make departure to his from the United necessary documents sustained a motion to dismiss The District Court States. in question It held that the statute these two counts. it unconstitutionally vague indefinite, because was neces- specify did not the nature of the travel documents nor indicate to which sary departure application. how make many countries the alien should 99 F. on S. C. Supp. appeal. 778. The case is here (Supp. IV) a statute, plain unambiguous face,
While on its may given an application process that violates due law, we are not problem pres- concerned with that ent case. The question here is whether the statute on its *3 face meets the certainty constitutional test of and definite- ness. think We it does when viewed in its statutory setting.
The statutory unambiguous. scheme seems clear and country The choice of a to alien willing receive the is left first to the alien himself and Attorney then to the Gen- country willing eral. Once the to receive the alien is identified, for effecting departure the mechanism his re- in period specified (c) mains. The six-month 20 makes clear what a “timely” application statutory is. The words necessary departure” “travel or other documents to his in will, course, meanings have different reference to out, deposits various countries. The forms to be filled furnished, to made, photographs to be the number of will from supplied vary country and the information to be to But when the to which the alien is to country. country known, any mystery concerning the docu- deported departure vanishes. The words necessary ments his applied deportations when “necessary departure” to his lawful departure refer to a from this normally would another. The into a lawful entrance country for such making timely application the statute satisfies for his requires in country question as the documents admission. it if, example, trap be a might well
The statute of one requirements know the visa the alien to required stat present of the emphasis But the countries. or more for such in faith” good application “timely on a ute is may require. country question as the documents particu into for entrance the visa Though requirements the command change, lar are constant conclude intelligible. We simple remains statute sufficiently in the statute warning contained vague infirmity of any free it of constitutional definite v. Petrillo, 1; S. Jordan U. v. States ness. Cf. United George, De pressed law is of constitutional question
Another unconstitu- must be declared the statute is that us. It opportunity no a defendant it affords because tional validity him on the pass tries have the court neither question That was deportation. the order If argued here. briefed nor nor appellee raised United States it. See we consider been, might it had 304, 330. But Curtiss-Wright Corp., constitutionality presented, naked single, question for new and different not search we do *4 con- on the passing refrain from Rather we questions. has stage until a of a of a statute stitutionality phase constitu- precise the decision of been reached where Petrillo, States v. necessary. See United issue is tional supra. validity of the time whether
It to consider will trial tried in the criminal may be order of Yakus v. United by (cf. or by jury either the court
173 States, States, v. United 442) Cox 332 S. 414; 321 U. U. That and if the seeks to have it tried. appellee reserve opinion. not foreclosed this We question on it. decision
Reversed. in part Mr. Justice Clark took no the consideration or decision of this case. Black, dissenting.
Mr. Justice (c) about only thing Immigra- certain 1917, amended, as is that violation of its terms tion Act An years’ imprisonment. a ten felony punishable deported by Immigration alien ordered the Bureau of if re- subject ten-year penalty “willfully this he fail or to make faith travel timely application good fuse for necessary departure.” or other documents to his To punishment guess unerring avoid an alien must a accuracy judge jury1 might someday what answers give following to the an questions: (1) appli- When is “timely”? (2) “good cation constitutes a faith” What (3) application? What kind “documents” are “nec- To whom essary departure”? (4) to his apply must he for these documents?
Aliens living necessarily sophis- this are not world familiar present-day ticated travelers with the red times, placed “In earlier some Rulers their criminal laws where them, might the common man see could not in order that he entrapped imposed into their violation. Others standards conduct impossible of achievement to the end those obnoxious to ruling powers might be convicted under the forms of law. No one provided entrapment, of them ever more certain than a statute prescribes penitentiary punishment nothing more than layman's prophesy judge jury failure to what a . will do. . .” Carolina, (dissenting opinion). Williams North 325 U. S. Grocery Co., Cf. United States v. Cohen *5 *<r to one get from to be unwound must
tape to when, indicate at least should Congress another. for ex- If, apply. the alien should what and for whom, at report to an alien required merely ample, the statute collected sign “documents” place and to time a certain con- the affirmative State, Department the American But specific. be clear at least would duct demanded in aliens entangles judgment, in my statute, present I think escape. can from which few vagueness a snare of guess a “bad” more than requires the Constitution make a criminal.2. Frank- Jackson, whom Justice with Justice Mr.
Mr. dissenting. joins, furter presence unlawful an alien’s punish
I this Act think ap- for reasons unconstitutional in States the United in sub- in but not subtlety face.1 It differs on its parent half more than unconstitutional from one held stance recently cited repeatedly in a century ago decision States, Wing v. Wong United approval. 2 vagueness it unnec for makes My is void belief that the statute Mr. question essary discussed me to reach for satisfactory yet reason although seen a I have not Jackson, Justice Maggio Zeitz, my opinion rejecting his view. See for 56, 78-81. (c) Immigration of 1917 pertinent portion of 20 Act § Security 1950, 64 Stat. (as Internal Act in 23 of the rewritten § (c)) IV) follows: 1010, (Supp. reads as S. C. U.8 outstanding against order of "Any whom an willfully shall fail . . . under named who statutes] [various period of months depart States within a six refuse from the United deportation, September or from from of such the date order willfully later, or refuse to make or shall fail whichever neces- timely application good or other documents faith travel felony, guilty sary of a departure his . . . shall conviction years . . imprisoned . .” more than ten shall *6 simple and direct. was down there stricken The Act 228.2 of Chinese person person Chinese any that It provided or commissioner justice, judge by any adjudged descent to be or lawfully entitled States of the'United imprisoned first be should States the United remain from the United removed labor and thereafter at hard competent it would that The Court conceded States. remaining unlaw- an that to declare Congress for criminally punished could be States fully the United a trial.” by judicial to be established “if offence were such it However, said: S. at 235. 163 U. promote further sees fit to Congress
“But of such aliens subjecting persons the policy by such a by con- labor, at hard punishment to infamous legislation, such we think fiscating property, their to estab- for a trial provide judicial must valid, to be guilt lish the of the accused. upon the put by the courts
“No limits can be methods, by summary Congress protect, of power whose race or advent of aliens the from the citizens, or to ex- habits render them undesirable as way found their into already if have pel they such therein. But unlawfully remain our land country to be residence within the declare unlawful by deprivation crime, punishable an infamous pass out of the property, would be liberty provision unless legislation, sphere fact of should first be estab- guilt were made that the judicial trial. It is not consistent lished legislature that theory government of our in- an having after defined an offence as should, 2 586; 580, v. United Sing Harisiades v. 342 U. S. Shaughnessy, Li 244, 283; 486, 495; 182 Bidwell, Downes v. U. S. States, 180 U. S. 481, v. States, Russian Volunteer Fleet United adjudge guilt find the fact crime, famous agents.” own one of its punishment 237.3 at U. S. prohibited that the Constitution Court held
Thus the without judicial determination purposes criminal in the present United illegally alien was that jury presence made his the facts which It held States. a jury, to the satisfaction must be established illegal presented before it seems to have the actual case although quoted Sing States, supra, 494-495, the Court at Li v. United In Ting States, as follows: Fong *7 Yue United “ is not deportation punishment for crime. It of is not a order [An] applied banishment, is often to the sense in which that word a the way country by punishment. It expulsion from his of of a citizen country enforcing to his own of an alien of the return but method upon performance of complied conditions the who has not with the nation, acting government within its constitutional of the which the through proper departments, has determined authority, the and therefore, depend. not, continuing here shall He has his to reside liberty process law; deprived life, property, or without due of of been securing right provisions Constitution, of trial the the and seizures, jury, prohibiting cruel and unreasonable searches and and punishments, application.” and unusual have no on, however, say Sing The Li Court then went that: that, may proper held “It here to mention that this court has coming forbid aliens from within their while the United States can borders, expel country, power and them from the and can devolve the duty identifying arresting persons upon and such executive officials,yet, Congress promote or sees subordinate fit further policy subjecting persons such a the of such aliens to infamous punishment labor, by confiscating property, hard their such at legislation, valid, provide judicial establish must trial to guilt Wong Wing States, the of the accused. v. United 228.” thereby great
That Court made it clear that there is a distinction deportation may between itself order that be made subsequent punishment. the basis of criminal It is that distinction press Fraenkel, which we for here. See Can the Administrative Syracuse Process Evade the Sixth Amendment? L. Rev. 173. simplest issues, the only namely, narrowest whether If the alien was a Chinaman and whether he was here. so, entry presence any illegal. his and his at time were In contrast, this presence Act incriminates those whose entirely legal here is but for guilt some forbidden entry. Certainly conduct since illegal presence under present laws involves a trialworthy much more issue than Wong Wing’s case.
This Act creates a crime on also based unlawful resi- dence in the United States. The crime consists of two one, elements: an outstanding order for deportation of an alien; other, the alien’s willful failure to leave the specified take steps departure. toward The Act does not permit the court him which tries for this pass crime to on illegality presence. his Pro- duction of an outstanding administrative order for his deportation becomes conclusive evidence of his unlawful presence and a consequent duty to take himself out of the country, and no inquiry into the correctness or validity of the order is permitted. subtlety present Act consists of severing
the issue of unlawful presence for administrative de- termination which then becomes conclusive *8 criminal trial court. We must not forget that, while the alien is not constitutionally protected against deporta- tion by administrative process, he stands on an equal constitutional footing with the citizen when he charged with crime.4 If Congress can charge subdivide a against an alien and jury avoid by trial submitting the vital part controversial of it to decision, administrative it can do so in prosecution the of a citizen. ifAnd vital elements of a crime can be established the manner here attempted, way open would be subversion effective v. Shaughnessy, supra,
4 Harisiades
at 586.
effective
of the most
to be one
thought
we have
of what
freedom.
all men’s
of
safeguards
constitutional
deporta-
liability
determinations
Administrative
only by con-
sustained as
tion have been
no
nature, with
exclusively civil
them to be
sidering
doctrine,
That
or connotations.
consequences
criminal
adhered to
been
dissent has
against sharp
early adopted
deporta-
for
new causes
logical difficulty as
increasing
after
entry but on conduct
illegal
not on
tion, based
which
period
and the
within
added,
been
admittance, have
ex-
instituted has been
may be
deportation proceedings
made to
deportation
order is
By this Act
tended.5
consequences.
carry potential criminal
adjudication that one is liable to
If
administrative
are not
resulting orders
exhausted
and the
deportation
warrant for the authorities to
they have served as
adjudications
but become conclusive
of his
eject the alien
purpose
prose-
for the
of his criminal
presence
unlawful
play.
into
principles
different
come
cution, quite
guilty
an alien has been
con-
adjudication that
The
by pro-
is not made
deportation
him to
subjecting
duct
It is not
judgment
crime.
cedures constitutional
All that
trial or a
decision.
jury
made either
court
an administrative
hearing
statute is
before
required
may
that
be before one who acts both as
officer and
prosecutor.6
finding
that the
judge
alien’s
him to
does
subjecting
of conduct
guilty
may
but
proof beyond
reasonable doubt
require
If
preponderance
made on mere
evidence.
the deter-
Shaughnessy, supra,
Harisiades v.
at 587.
6 Wong Yang Sung McGrath,
33, holding
Act,
seq.,
Procedure
60 Stat.
5 U. S. C. 1001 et
Administrative
§
required
judging
prosecuting functions,
separation of
was sub
sequently
by Congress
specifically exempted deporta
set aside
1004, 1006,
proceedings from 5
C.
and 1007. 64
tion
U. S.
Stat.
§§
IV)
(Supp.
155a.
U. S. C.
*9
initiation of deportability
subject
to review under § 10
of the Administrative Procedure Act, 60 Stat.
U. S. C.
1009, question
expressly reserved in McGrath
v. Kristensen,
Having thus dispensed with important constitutional safeguards in obtaining an administrative adjudication that the alien is guilty of conduct making him deportable on ground it is only a civil proceeding, the Govern- ment seeks to turn around and use the result as a con- clusive determination of that fact in a criminal proceeding. We think it cannot make that use of such an order.
It must be remembered that the deportation proceeding is an exercise of adjudicative, not rule-making, power. The issue on which evidence is heard is whether the alien has committed acts grounds which are deportation. The decision is whether he is guilty of past such conduct, and, so, if the legal result is liability to deportation. This type of administrative proceeding which results in a rule or order prescribing rates or otherwise guiding future conduct.
Experience in the Executive Department with the im- migration laws made me aware' aof serious weakness program which Congress by this Act was trying to A overcome. deportation policy can be only successful to the extent that some other state is will- v. Shaughnessy, Harisiades supra. *10 in- except selected But, expel. we those ing to receive here, than abroad harm more do us can who dividuals deporta- our with cooperate will power Communist what aliens? Communist expelled our receiving by policy tion such confidence feels power non-Communist what And in persons taking risk it can security that own domestic its its to dangerous finds Republic powerful stable this policy frustrate seem conditions security? World admission they gain Once of subversives. shipped be cannot one that problem our are they here, the world. part other off to some construction in a strained join not would we While obstacles trivial captious or create the Constitution sanction we cannot problem, of this solution delays to with compliance upon except prison aliens sending no liberties afford canWe procedures. constitutional itself. liberty with compelled it might intimates
The Court to the statute objection this agree I from abstain counsel. advanced reasoning were Court whereby squeamishness new on this comment Termi Cf. argument. counsel’s within itself imprisons re before our duty 1. It Chicago, 337 U. niello v. which any ground to examine versing judgment a below the court ground sustained, even it can Langnes rejected. See expressly have overlooked may Watts, & v. Unione Watts Co. Green, 531, and reversing But this Court Austriaca, 9,S. unconstitutional this statute which held the lower court potential limping with forth sending the Act and is shy to take too has the Court become infirmity, because if well counsel, though, sponsored up point being here over judgment support would taken, it would be to order be done that could The least turned. reargued. the case