*1 DIRECTOR OF DISTRICT WATKINS, LUDECKE IMMIGRATION. 21, 1948. Argued May 3-4, June 1948. Decided No. 723. *2 Stanley Silverberg argued respondent. M. cause for Perlman, him With on the brief Solicitor General were Morison, and Assistant General Samuel D. Slade Melvin Richter.

George C. enemy aliens, Dix filed brief for unnamed curiae, as amici in support of petitioner. opinion delivered the of the

Mr. Justice Frankfurter Court.

The Fifth Congress committed to the President these powers:

“Whenever there is a declared war between United and any foreign government, States nation or any or or predatory perpetrated, invasion incursion is attempted, or against territory threatened of the United any foreign government, nation or and the public proclamation President of. the makes event, all natives, citizens, denizens, subjects or of the hostile nation government, age or being fourteen years upward, and who within the shall be United States and not actually naturalized, shall be liable be and apprehended, restrained, secured, as removed au- enemies. The President thorized, in any event, by proclamation such his thereof, public or other act, to direct the conduct observed, part on the toward liable; the aliens who become the manner and so degree of the restraint they shall be sub- security what upon and cases, in what

ject for the provide and to permitted, residence shall to reside who, being permitted removal of those depart neglect States, refuse within the United regulations other establish therefrom; for the premises and in the necessary found which are 577, 6, July Stat. safety.” (Act public C. S. amended, 40 U. R. S. § Stat. §21.) land, law the Alien Act has

This remained one unchanged Throughout 1798.1 these virtually since de- fifty interpretation hundred and executive years authority have found the Act cisions lower courts fur- questioned, and the for the which is now President *3 did comes made if what the President that, ther claim is him such Act, Congress give could not within the properly which these are issues power.2 Obviously brought 333 U. S. 865. the case here. De- enemy,3 a German alien was arrested on

Petitioner, 1 wording. changes have There have been a few minor We in argument duly light of in the of the considered these in an brief significance. amici curiae and deem them without enemies, are there 530 alien ordered We advised that disposition outcome depart from the United whose awaits the of this case. 3The district court found that: 5, February petitioner Berlin, Germany, in on

“The was born Germany period 1923 to He out of for most of the 1890. was Germany in became March 1933. He returned to March and disagreements party. Nazi he a member of the Later had some con- with other members and as a result he sent to a German 1934, being 1, camp, escaped from he after centration March eight for over months. thereafter he came confined Sometime Story country published book, this and T Knew Hitler’ [‘The Escaped Purge’ memory Captain a Nazi Who The Blood —'In many Gregor who were Ernst Roehm and Strasser and other Nazis betrayed, murdered, graves’], in 1937. His and traduced Alien before proceedings after 8, 1941, and, cember interned 1942, was 16, on Hearing January Board 9, February General, dated Attorney by order President, authority of the Act 1942.4 Under the United from directed the removal July 14, 1945, on by the deemed “who shall be of all alien enemies and peace public dangerous to be Attorney General Fed. 2655,10 Proclamation States.” the United safety on Janu General, Accordingly, Reg. 8947. Denial of a removal.5 petitioner’s ordered ary 18, 1946, from under for release detention corpus writ of habeas F. 2d by the court below. order was affirmed 143. Admin- the recent explicitly recognized

As “preclude judicial Act, some statutes istrative Procedure 1946, 10, 60 Stat. Act of § review.” June constitutionality, interpretation

Barring questions of was denied Decem- petition an American citizen for naturalization as 18,1939.” ber expressed in his brief before petitioner’s attitude was thus

the district court: live, strive to for I can

“Fundamentally, it matters not where I Besides, it where ever I am. right of service live the life and be in midst thing while I can to do the best I can well be a better suffering body soul, than to be a futile people of a defeated breathing people something triumphant midst of a frustrated self-complacency, hypocrisy, and self-deceit.” the foul air of *4 4 validity of these adminis question to the has been raised as No 2526, pursuant Presidential Proclamation trative actions taken 6321, 6323, under the 1941, Reg. issued 7, Fed. dated December 6 Enemy authority Act. of the Alien dangerous on deemed petitioner was The order recited that the Enemy hearings the Alien at before evidence adduced the basis the Hearing Repatriation 16, 1942, Hearing January Board on which examined The district court 1945. Board on December fair petitioner had notice and a proceedings found that these note See also was substantial. and that evidence infra. Its statute. Alien Act of 1798 is such leave no

terms, purpose, and construction doubt. hardly Fifth could language employed by the doubtful, the incom clearer, be made or be rendered we have of plete always dependable and not accounts That such was early years Congress.6 in debates controlling con scope the Act is established alien concerning “The act temporaneous construction. very great dis enemies, president which confers on the C. cretionary powers respecting persons,” Marshall, inJ., Brown v. United 110, 126, “appears 8 Cranch make it.” legislature me to be as unlimited as the could Smith, Lockington Washington, J., v. 15 Fed. Cas. No. p. very 8448 at 760. The nature of the President’s rejects to order the removal of all aliens the notion of his may pass judgment upon that courts the exercise expressed by discretion.7 This view was Mr. Justice Fries, Case shortly passed, Iredell after the Act every judge ques Fed. Cas. No. whom before judi- tion has since come has held that the statute barred 6See, however, Watkins, United ex rel. Kessler v. 163 F. 2d States 140; League Clark, App. 116, 155 Citizens Protective v. 81 U. S. D. C. F. 2d 290. would, my opinion, with “Such a construction be at variance spirit law, great object as well as with the letter of the of which provide public safety, by imposing was to for the such restraints upon enemies, magistrate as the chief of the executive might necessary, particular think his situation and which judge. myself enabled him do not feel authorised best to ... I authority magistrate impose limits to the executive congress, powers, in the has not seen exercise its constitutional impose. Nothing short, my mind, fit to be more clear to can parts, from an attentive consideration of the act in all its than that congress judiciary auxiliary executive, intended to make the to the effecting great objects law; department of the and that each independently other, except was intended to act latter, former was to make the ordinances of the the rule of its Lockington Smith, supra, p. decisions.”

165 cial review.8 We would so read the Act if it came before impressive us without the gloss history.

The power with vested the President had be himby through provided executed He others. for the removal of such aliens as were “deemed by the Attorney dangerous.9 General” to be But such a finding, at the behest, President’s was likewise not subjected to the scrutiny thing, of courts. For one upon removal was contingent not that in fact finding an alien was “dangerous.” President was careful to call for the removal of Attorney aliens “deemed General to dangerous.” But short answer is that 8 League Clark, Citizens Protective v. App. 81 S. D. U. C. 155 290; F. Watkins, 2d United States ex rel. 853; Schlueter v. 158 F. 2d Clark, 552; United States ex rel. v. Hack 159 F. 2d ex United States Watkins, 140; rel. Kessler v. 163F. 2d United States ex rel. VonAsche berg Watkins, 1021; Bradley, 600; v. 163 F. 2d v. Minotto 252 F. see Lockington’s Case, (Pa.) Brightly 269, 280; Lockington Smith, v. 758; Graber, p. parte 882; Lacey

F. Cas. No. Ex 247 F. De States, 625; v. United parte Fronklin, 984; 249 F. Ex 253 F. Grahl 487; v. Banning Penrose, 159; United 261 F. cf. v. 255 F. parte Risse, 102; Gilroy, Ex parte 110; 257 F. Ex 257 F. United ex Longo, Supp. 170; States rel. De v. Cicco 46 F. United Uhl, Schwarzkopf 898; ex rel. v. 137 F. 2d rel. United States ex Uhl, D’Esquiva 903; 137 F. 2d rel. v. States ex Knauer Jordan, exception 2dF. 337. The one is the initial taken view rejected the district court in this case. It that “contention only question corpus that Court consider in this habeas proceeding petitioner’s enemy status, although is the there are give suppport view,” petitioner cases which held had but Repatriation had fair before Board and that there was support Attorney substantial evidence General’s determination petitioner “dangerous.” rehearing, On the court noted that case, supra, the Schlueter foreclosed issue. express qualification, If the President had not added but had statutory presumably proclamation language, conformed his to the arbitrarily would have General acted but would implied “dangerous” have utilized some in his such standard delegated exercise of power. *6 and con- President’s voice was the Attorney General

the subject to President not power A of the war science. judicially review- transmuted into judicial review is not have that the President chooses able action because Congress limits than narrower power within exercised authorized. the President claim that while reach the

And so we did not survive Act, it power under the summary had nulli- effect of This claim cessation actual hostilities.10 deporta- enemies, such power deport fies the of what pendency practicable during tions the hardly law shooting the war.11 Nor does known as colloquially necessarily end the war of hostilities does “The cessation Kentucky W. v. Distilleries & power. stated in Hamilton It was 161, power Co., power ‘to that the war includes 251 U. S. progress’ from rise and remedy which have arisen its the evils Kahn, during emergency. v. 11 Wall. that Stewart continues power, adequate plainly be reach it is 507. Whatever of that problems during the law enforcement which arise to deal with more is in period but do not cease with them. No of hostilities Fleming Wrecking Co., & Lumber volved here.” Mohawk S. U. history supported by legislative The claim is said be expressions of paraphrased a few Act. We do not believe that the Congress properly at this late Fifth could sanction members reading statutory judicial phrase war” to mean date a “declared 3, supra. Nothing p. needs to “state of actual hostilities.” See point from court added to the consideration which this received Hand, Judge Augustus in this case below in the case. Circuit Kessler Swan, Judges speaking for L. Hand and said: himself Circuit Congressional pre- argues debates “Appellants’ that counsel Gallatin, by ceding Alien Otis and the enactment Law 1798 Congress Alien others, intended that ‘war’ used show that agree the discus- in fact. We cannot Act should war argued 9 of Art. I such effect. that Section sions had Gallatin allowing ‘Migration Im- states the free of the Constitution might way the Act as portation’ of aliens until 1808 stand

n H CO does not cease with a lag behind common sense. War to be exercised the Presi- order, power cease-fire process the Act of 1798 is dent such as that conferred war is declared but is not exhausted begins when v. Ander- stops.12 when the See United States shooting proposed if it was not limited to a 'state of actual hostilities.’ It how- ever was not so limited in the text of the act and it is hard to see disposition how the failure to limit it in words indicated a on the part limiting by implication. objected to limit it Otis power the exercise of the to a state of declared war because he thought the President should have to deal with *7 in aliens the case of hostilities short of war and in cases where war was not declared. That wished to add ‘hostilities’ to the words Otis war,’ attempt, ‘declared in his and failed does not show that meant that when in war was declared active hostilities must exist justify power. questions order to the exercise of the The raised finally long passed which in how were dealt with the act as were not properly invoked, upon should last when but the conditions might fully in which it be invoked. Those conditions were met present question appellants’ case and no is raised counsel as to propriety is no the President’s Proclamation War. There in indication the debates or the terms of the statute that power, properly invoked, exercise of the when should cease until peace made, peace present has not made in the case. been by appellants’ If the construction of counsel the statute contended adopted, powerless carry were the Executive would be to intern- out deportation during ment or which was exercised active war and not might obliged country danger- unprotected from to leave the aliens they possessed ous either because of secrets which or because of necessary potential quite suppose to inimical activities. It seems carry prior the President could not out to the officialtermination war, deportations re- of the declared state of which the Executive garded necessary safety country for the of the but which could not danger during be carried out active warfare because themselves or the interference with the effective aliens conduct (United military operations.” Watkins, ex rel. Kessler v. 142-43.)

F. 2d at suggested joint congres It is that a letter the Chairman of a by Attorney Gregory Secretary sional committee General Protector, 12 McEl son, 56, 70; 700; Wall. 9 Wall. Hamilton 426, 438; 102 U. S. rath v. United “The Co., 146, 251 U. 167. Kentucky S. Distilleries by treaty legislation or war” be terminated state of its mode, proclamation. Whatever or Presidential contrary interpretation reflects a Labor administration Wilson pointed opinion out: “The letter But, Act. as the Kessler of this does Attorney Gregory appellants’ counsel General referred said was no law our When he there affect conclusions. referring to was, opinion, plainly conditions aliens he our exclude peace treaty, prior of the and not to conditions.” the ratification after 1919) (dated 5, supports that Ibid. The Feb. text letter no on the books observation: “There is law now statute under persons country, excluded from the nor under which these can be they custody peace can detained after the ratification of the treaty. by you, bill one in char- Unless the introduced similar acter, necessary passed peace on it will become the ratification of highly dangerous persons.” Hearings free all of set these before Immigration on on House Committee and Naturalization H. R. Cong., Sess., made 66th 1st 42-43. And General Palmer substantially to the House the same statements Senate and Committees Immigration. Rep. Cong., Sess., 2; H. R. on See S. No. 66th 1st Sess., Cong., Rep. No. 66th 1st contradictory by Attorney expressed But even if Gen- views were Gregory, they plainly political exigencies time eral reflect which from *8 guide to time the desire of an administration to secure what effect confirming legislation. strikingly of mani- The confusion views is by Attorney Gregory’s recognition Act fested General the give authority the of survived cessation actual hostilities so as to apprehend, restrain, See, generally, aliens. World secure 8, any event, supra. note In if view War I cases cited even one by Attorney expressed Gregory, against expressed General another by him, could be claimed indicate a deviation from otherwise uniformly us, hardly accepted of the Act it construction before would meaning conflicting against the of the touch true the statute. As one have the views of General we not view but present Attorney actions of the General and of the President and present Congress. 19, by ratification See note infra. a political termination is act.13 Ibid. Whether and when it open would be to this Court to find that a war though merely formally kept alive had in ended, question fact is a too fraught with gravity even to be adequately formu- lated when compelled. Only a ago few months rejected Court the contention that the state of war in relation to which the President has exercised authority now challenged was Co., terminated. Woods v. Miller 333 U. S. 138. Nothing that happened has since calls for a qualification of that view.14 true, It is still as was opinion said in the in that case eyed the war most jealously, “We have armies abroad our exercising war power and have peace made no allies, terms with our not to mention principal our enemies.” Woods v. Miller Co., supra, p. 147 (concurring opinion). The situation today is strikingly similar to that of 1919, where this Court observed: “In view of public facts of knowledge, some of which have been to, referred treaty of course, Of fixing there are statutes provisions which have expiration date of the powers they upon the war confer the Execu See, g., Kentucky tive. e. Hamilton v. Co., 146, Distilleries S.U. 167, (collection n. 1 providing authority statutes that the terminates upon treaty peace ratification of by proclamation). or Presidential Congress can, course, provide day either certain or a defined expiration event for the of a statute. But when the life of a statute is defined war, Congress existence of a leaves the determination of when a war is political agencies concluded to the usual Government. 14Cf., g., e. President’s address to on March 1948, recommending European recovery the enactment of pro gram, military training, universal temporary and the reenactment of legislation. selective Cong., service H. Doc. No. 80th 2d Sess. May 10, 1948, by On Reg. 2503, Executive Order 13 Fed. authority war,

President exercised his through “in time of . . . Secretary War, possession to take and assume control of system systems transportation (Act August 29, 1916, . . . .” 619, 645, 10 1361.) 39 Stat. U. S. C. § *9 are

peace yet concluded, railways has not been that powers, by virtue of war still under national control close, to a brought war have not been that other activities power of said that the man and that it can not even be are peace footing, we has been restored to a the nation to be valid.” that the act has ceased unable to conclude Co., 251 U. S. at Kentucky Hamilton v. Distilleries not has political of the Government branch On the con Germany to war with end. brought the war exists.” proclaimed “a still trary, it has that state 1; see Reg. Fed. Proclamation Presidential Co., p. 140; Fleming v. Mohawk supra, v. Miller at Woods Co., Court U. 116. The Wrecking Lumber S. & political agencies assuming the functions of would yield suggestion to the of the Government disintegra Germany and the surrender unconditional gov without a Germany Reich left tion of the Nazi have It treaty peace. negotiating a capable ernment the President that question a belief not for us to for intern subjects fit deemed justifiably who aliens were potency do not lose their active hostilites during ment period and conflict which during the of confusion mischief guns war even when the state of is characteristic These has not come.15 peace are but the of Peace silent have judges for which political judgment are matters responsibility. competence nor official neither technical Is the statute question. This to the final brings us valid as it? The same considerations we have construed reject led us authority, history, reason, taking Europe affect our “Rapid changes place in years have foreign policy security. . . . Almost 3 and our national wars, peace stability elapsed greatest of all but the end of the since 569, supra, p. 1. to the world." H. Doc. No. have returned

171 16 statutory “declared war” to mean reading language hostilities,” support validity “actual of the statute. The If have power power. war, war is the war as we has held, ended, justify not fact so as to local rent fortiori, control, validly supports power it given by to the President of 1798 in relation to alien Act require protracted enemies. Nor does it to argument find no may defect the Act because resort to the courts be had only challenge validity the construction and and question statute the existence of the “de- clared as been war,” has done in this case.17 The Act is almost as and it Constitution, as would savor old audacity of doctrinaire now find the statute offensive Bill Rights.18 to some emanation of the fact point We should out that it is conceded that a “state war” “formally against Germany. declared” Act of December 1941, 55 Stat. question person The additional as to whether the restrained is enemy years age may in fact an alien fourteen or older also be 8, supra. ques reviewed the courts. See cases cited note This tion is not raised in this case. Congress concerning responsible The Fifth “An was also Act Aliens,” approved 25, 1798, June 1 Stat. and “An Act in addi act, punishment tion to the ‘An entitled act for the certain ” against States,’ approved July 14, 1798, crimes the United 1 Stat. Enemies,” respecting as well the instant “An Alien Act approved July 6, significant 1798. It is that while the former stat vigorously contempo utes—-the Alien and Acts—were and Sedition raneously unconstitutional, attacked as there was never issue Madison, validity raised as to the of the Alien Act. James carefully caustically report Virginia Resolutions, in his on the legislation, friendly as follows: differentiated between fallacy is, “The next observation to be made that much confusion and question by blending been into the the two cases of have thrown friendly aliens, nation, aliens, members a hostile members of enemies, respect no has been nations. . . . With to alien doubt them; authority the Constitution intimated as to the Federal over power having expressly delegated to to declare war in- to secure are utilized the Executive hearings power does summary for the exercise formed basis nor hearings, retry such argue right courts such process of due to withhold bespeak denial from the courts. doubt, but abused, no powers war great

Such supervise their having judges is a bad reason for which such legal formulas within exercise, whatever In relation nominally be confined. supervision would *11 powers among the three of constitutional the distribution optimistic Eighteenth Government, branches of Iredell, speaking of Century of Mr. Justice language very Act, pertinent: is still be suppose they are to systems government

“All of by administered men of common sense and common ultimately depends In honesty. country, our as all they have it people, on the voice of the presumed they will power, generally and it is to be they if will description; choose men of this but If case, remedy. is without not, sure, If laws. they fools, they choose will have foolish knavish ones. they knaves, they choose will have they gen- But this never be the case until can erally themselves, which, fools or knaves thank God, likely is not ever to become character Fries, people.” (Case of supra, the American p. 836.)

against any nation, and, course, its members treat it and all Writings Editor) (Hunt, as enemies.” 6 of James Madison 360-61. Similarly, Jefferson, Kentucky Thomas Resolutions author of the point of 1798 and was careful to under out that the Alien Act powers the one friends.” attack was “which assumes over alien Editor) Writings (Ford, There was Thomas Jefferson any questioning never of the Alien Act of 1798 either suggest repeal. nor did either Jefferson Madison ever its we hold full Accordingly, responsibility for just great exercise of this validly left where placed has constitutionally it—on Presi- dent the United States. The in their Pounders wisdom made him not the Commander-in-Chief but also guiding organ our the conduct of He foreign affairs. who entrusted powers with such vast relation to the outside world was also entrusted Congress, almost throughout nation, the whole life with the disposition during of alien enemies state war. Such a page history is worth more than a volume of rhetoric.19

Judgment stay order affirmed February 2, entered 19¿¡.8,vacated. MR. Black, Douglas, Justice with whom Mr. Justice Murphy Rutledge Mr. Justice join, and Mr. Justice dissenting. petition corpus in alleged habeas this case

petitioner, admitted legally resident of *12 suggested It is ought something that to do about cor recting today’s present Congress apparently decision. But the has anticipated recognized pow the decision. It has that the President’s ers by under the Act of Alien 1798 were not terminated the by of appropriating cessation actual hostilities funds “. . . for all necessary expenses, maintenance, care, detention, incident to the sur veillance, parole, transportation and of alien enemies and their wives dependent children, including transportation expenses and other persons place return the of such to of bona fide residence or such place may by Attorney other as be authorized the . . .” General . appropriation by Congress 61 Stat. 292. “And the of funds agencies for the use of such stands as confirmation and ratification of Dewar, the action of Chief Brooks Executive. 313 U. S. Fleming Wrecking Co., 361.” v. Mohawk & Lumber 331 U. S. 111, 116; see Co. v. also Isbrandtsen-Moller U. S. Germany as country deported from this

was about to be afforded been having without enemy, alien “dangerous” whether he a fair to determine notice and as Government holds, The Court now “dangerous.” peti- proclamation, presidential of a that because argued, order Attorney General’s deported by tioner can be of the truth into judicial whatever any inquiry without I holds, further and goes The Court allegations.1 his can Attorney General that opinion, its understand effect dangerous or not. The him he is whether deport or person, good unnaturalized holding is that any of this if awas citizen country, he bad, loyal disloyal or to this summarily seized, here, coming can be Germany before At- deported by interned from United States specifically petitioner The Court holds that this is not entitled petitioner to have this court determine whether Court other hearing. Attorney has had a fair The merits General’s action challenge subject by petitioner. are therefore Neverthe quotes paragraph less the from Court note out context short Attorney protest petitioner against the a written made General’s procedure. quotation only possible purpose The indicate of this that, anyhow, petitioner ought deported views to be because his paragraph protest against stated this his General’s process. protest procedure. strange This kind due is a camp pointed petitioner kept had in a out Hitler concentration eight disloyalty for months to the Nazis and that Government charge kept imprisoned years he had then him for four on the Immediately paragraph was a Nazi. the Court’s before the cited opinion, petitioner’s protest following contained the statement: my goodwill upon anybody me, however,

“Far it from to thrust community public ill stay and insist to on a whose servants illegal procedures pitiful seek to me means. will remove man, Therefore, propose voluntarily not as a I that I as a free leave dangerous opportunity provided I deportee, earliest days my sailing sixty shall be allowed to settle affairs before date.” judicial process it to review the whole record Is due to refuse *13 hearing yet attempt fair determine whether there was a Attorney deportation bolster the order reference to two General’s long in a ? sentences record

torney General, and that no court of the United States any power has to review, modify, vacate, reverse, whatever or manner Attorney affect the deportation General's Douglas order. Mr. given has reasons his Justice dissenting opinion why he deportation believes that aliens, without and hearing, notice in peace whether war, would abe denial of I process due of law. agree Douglas with Mr. many of the reasons he Justice gives deportation petitioner without a fair hearing by judicial determined process review is a denial of due of law.2 But I do not question reach the to de- port aliens of countries with which we are at war while we war, I because think the idea that we are still at war with Germany contemplated the sense by the statute controlling pure here is a fiction. Furthermore, I think there is no of Congress act which lends slight- est basis to the claim that foreign after hostilities with a country have ended the President or the Gen- eral, both, one or can deport aliens without fair reviewable the courts. On contrary, when this very question came before after World I inWar interval between the Armistice and the conclusion formal peace with Germany, Congress unequivocally re- quired that enemy given aliens be a fair hearing before they could deported.

The Court relies on the Alien Act of 1798. 1 Stat. 577, 50 U. S. C. 21-24. That grant § Act did extraordinarily broad powers to the President to restrain provide “to for the removal” of aliens who owe alle- giance to a foreign government, but action such is author- ized “whenever is a there war declared between the United States” and such foreign government, or in the event that foreign government attempts or threatens the United with “any invasion or incursion.” predatory 2Compare parte Ex Endo, 283; 323 U. S. Korematsu States, 323 U. S. 214.

176 I statute, this powers to the President given have sufficiently broad to are my purposes, for

assume Attorney Gen- through the acting President authorized the country while the from deport alien Germans this eral to on, or going actually War was “declared” World second Germany. from invasion danger real of while there was years, in later passed But statutes this 1798 unlike statute, for which would prescribe the events expressly did not the “declared” mark the termination of statutory purposes Kentucky v. Hamilton war or invasions. See threatened In 165, 1. such cases Co., 146, 251 S. n. Distilleries U. can as best we so interpret statute we called on in connection of carry purpose out pro- was intended to particular right with the the statute Anderson, 69-70; The 9 Wall. tect, United States particular evil the Protector, 700, 702, or the Wall. McElrath v. guard against. was statute intended See Judicial De- S. 438. U. War, the End 47 Col. L. Rev. termination there was passed was at a time when The 1798 Act part to France certain hostility on widespread by many It asserted in United States. groups spies preach- country infiltrated with that France had Otis, and Mr. the chief ing ideas activities. “subversive” expressed his spokesman measure, congressional spread through “. . . . spies fears of . band . other, who, from one end of it to the case country, might enemy country” into our introduction of join upon us, “in their attack plunder property Congress, . . .” Annals of 5th our . 2d discussions of this Cong., Congressional Sess. 1791. appear pp. 1573-1582, 1785-1796, particular measure Cong., 2d 2034-2035, Congress, Sess.,3 Annals 5th Enemy Act, In addition to above discussions of the Alien frequent congressional references to the Act were made in the debates the Alien beyond show reasonable doubt grant Act of 1798 was intended to its extraor- powers dinary prevent residing enemies extending the United States from aid and comfort to an enemy country while from dangers fighting actual imminently Indeed, Otis, hostilities were threatened. Mr. persistent who was expressions most his of anti-French *15 sponsorship sentiments and his aggressive this companion its Alien Acts, and Sedition is recorded as “. . . that in saying tranquility, a time he should not to'put desire this the Execu- like into hands but, in tive; war, a time of of France to ought citizens very considered and treated and watched in a different manner from citizens of our own country.” Annals 5th Congress, Cong., 2d Sess. 1791. before just And bill was read for time, ordered its third Mr. Gal- latin pointed out Alien already Act had made possible it for the President all aliens, remove whether or enemies; interpreted friends he the measure here under aimed consideration, at alien enemies, providing “in what manner they be laid under certain restraints way security.” supported For this reason he bill. Annals of 5th Congress, Cong., 2d Sess. 2035.

German aliens could not if now, they would, aid the German Government in war hostilities against the United States. For as declared the United Depart- of State, ment June 5, 1945, the German armed on forces land and sea had completely been subjugated and had unconditionally surrendered. “There is no central Gov- authority ernment or in Germany capable of accepting responsibility for the of order, maintenance the admin- Act, on Alien Act, Stat. and the Sedition 1 Stat. passed

both of which adoption were within two weeks of the appear many the Alien Act. places These references Congress, Cong., g., the Annals of 5th 2d Sess. See e. 1973-2028. require- with the compliance country and

istration of Depart- And the State victorious Powers.” ments Russia, on declare that went ment “supreme author- had assumed Britain, and France Great powers all the Germany, including respect with ity Com- High Government, German possessed by the government state, municipal, or local mand, And on March Bull. 1051. Dept. State authority.” told the United States the President 17, 1948, elapsed years have since that “Almost opinion, Germany. See Court war with end . . .” of the n. that we a fiction to nothing say it but

Of course else that Germany.4 now war with Whatever affords agree I it support, refuse might fiction holding that our laws authorize today’s a basis for any person judicially on the peacetime banishment of individual. The 1798 single unreviewable conclusion of powers extraordinary dangerous grant did not its Act *16 pre- As period the of fictional wars. during to be used his out, Otis, Mr. with all of fer- viously pointed even repudiated the support legislation, of anti-French vent the would vest the President with suggestion Act powers peacetime. Consequently, in the dangerous such far gives meaning the broader today Court 1798 Act Co., having 138, The Court cites Woods v. Miller 333 U. S. as Germany yet I held that the war with terminated. find has holding opinion suggests language no such that even the no holding. powers such a We there dealt with the war constitutional necessarily Congress, powers whether all those non-existent question when are no actual hostilities. Decision of that has there hardly meaning relevancy to of the 1798 Alien even a remote judgment Enemy today support to also seeks its Act. Court case, quotation concurring opinion swpra. by a from a in the Woods single concurring opinion cited that of a member of But was the Court. given

than it was champions one the most vociferous series of anti-alien and anti-sedition laws. Furthermore, today the holding represents an en- tirely interpretation new For nearly the 1798 Act. 150 years after the 1798 never Act there came Court case in any which the Government that the asked interpreted Act be so to allow the President or person deport other allowing alien enemies without them fact, access to the In courts. less than two months after the end of actual first World fighting War, Attorney General informed Gregory that, although power was there to continue the intern- ment of alien enemies after actual hos- the cessation of peace tilities and until of a treaty, the ratification still there no was statute under which then they could deported.5 For this Attorney reason the General re-

5In a letter addressed to Chairman of the House Committee on Immigration January Attorney Naturalization dated Gregory explained subjects General that a number German who pursuant had “been interned section 4067 the Revised Statutes” 1 of the Alien custody. Act of were [section still held 1798] He then stated: authority given by regulate

“The the President to conduct of during war, my opinion, aliens the existence of could not properly bring deportation be used at this time to about the of these now, therefore, aliens. persons There these no law under which expelled country can be nor, it, from prevented if once out of from returning country. have, therefore, prepared to this I caused proposed bill, provisions the inclosed draft of a which are self- (Italics added.) explanatory.” Rep. Cong., H. R. No. 65th 3d position Sess. 1-2. This then General that there existing deport enemy no under reiterated law aliens was *17 representatives Attorney hearings of the General in before the House Immigration Committee on and on bill Naturalization the enacted Hearings into Cong., law. on R.H. 66th 1st 3-21. In Sess. interpretation conformity with this of the 1798 Alien Act attempt did deport Wilson administration interned alien to authorize legislation new Congress to enact quested time. bill enemy aliens at deportation Attorney both the by endorsed introduced was thereafter letter in joint in a Secretary of Labor General and “immediate considera- they given asked that it be Hearings “gravity tion” in situation.” view Immigration and Natu- before the House Committee on 42-43. Cong., H. R. 66th 1st Sess. ralization on submitted Attorney General Palmer Several months later the House and Sen- substantially same statements Rep. 143, 66th Immigration. ate on H. R. Committees Rep. 283, Cong., 1st 66th 1st Sess. 2; Sess. S. Cong., General, 1919, 25-28. Report Attorney See also carry A of Wilson bill out the recommendations (1920), passed, Stat. 593 but administration was later of the House not until had been amended on the floor it Representatives require that all alien enemies be deportation. Cong. hearing a fair before given That a was the command Rec. 3366. fair only by language Act is not shown Congress by the hearings, by congressional but the text of the debates on the reports by congressional committee mem- ranking by In was assured fact, bill. House hearings that in reporting the bill ber of Committee “a entitled bill man is enemies under the deport subpoena witnesses entitled to present, to have counsel full hearing, him have a them before summon taken.” must be stenographer’s at which the minutes Congress also 3367 and 3372. Cong. Rec. 3373. See over authorized the fighting war was therefore after they if were alien enemies deportation of interned Act Armistice and before enemies under the 1798 after the requested the two expressly deportations as statute authorized such Attorney 25-28. Report of the General Generals. *18 “given full in hearing, deportation all cases of under existing laws.” Rep. H. Cong., R. No. 66th 1st Sess. petitioner

This in precisely is the same status as were the interned alien enemies of the first World War for whom Congress specifically required a fair hearing with court review as a prerequisite to deportation. Yet the today Court procedure sanctions a whereby petitioner deported to be any without determination of his charge that he has been denied a fair hearing. The Court can reach such a by rejecting interpre result tation of the given by 1798 Act Attorney Generals, two upon acted in 1920. It is held that Congress and the two Attorney Generals of the Wil son administration wrong believing were that the 1798 Act did not deportation authorize of interned enemy aliens after peace hostilities and before a treaty. And in making its interpretation novel of the 1798 Act the Court today denies petitioner and others the kind of fair process that due of law was guarantee. intended to See The Japanese Case, Immigrant 189 U. S. 86, 100-101, read and explained on the floor Repre of the House of sentatives at 58 Cong. Rec. 3373, read into the House Committee hearings, supra 19-20, quoted part Douglas’ note of Mr. Justice opinion. dissenting

The opinion Court’s seems to fear that if Germans now left in the United might States somehow have a “potency for mischief” even after complete subjuga- tion and surrender of Germany, at least so long as the “peace of Peace has not come.” “potency This for mis- chief” can of possible course have no apprehen- relation to sion of invasion or war with Germany. apprehension must therefore be based on fear that Ger- mans now residing in the United might emit ideas to the dangerous “peace of Peace.” But the First Amend- spread belief this nation’s represents

ment And the avowed suppressed. not be ideas must political stifle Enemy Act was Alien purpose had ended.6 Others after hostilities spread ideas *19 prison provide did for and Sedition Acts the series of Alien to who dared had or at least people of who punishment justification the Court interpretation for of the 1798 Act As a its appears adopt Circuit Court to the advanced the Second reasons Watkins, 163 F. 2d Appeals in United ex rel. Kessler v. of States deportation difficulty emphasized of That the decided Court the during hostility enemies the time of actual “because alien effective danger or interference with the to the aliens themselves reasoning be military operations.” of course This would conduct punishment of object been persuasive if the of the 1798 statute had history was enemies, legislative that such the whole shows but to be purpose Hence the Act cannot construed not the Act. deportation is over as of an alien after the war authorize the deportation, far as it Furthermore, purpose of so punishment. (if authorized) protect to Act, not under the 1798 was authorized inva threatened United from ideas of aliens a war or States after during sabotage, etc., protect against sion to but Ap Nevertheless, Court of or threatened invasion. the Circuit war thought interpretation its "the would peals that without Executive carry powerless deportation or not exer to out internment which was country might obliged during war leave the cised active to dangerous unprotected from either because of secrets which aliens potential they But after possessed because of inimical activities.” peacetime relate to a war is over “inimical activities” would governmental type those matters —not the of conduct which concerned why Enemy Moreover, passed who the Alien Act. it is difficult to see endanger country keep aliens here “because secrets it would this to they possess.” powerless not to which And course the executive is dangerous country, send out of even if the 1798 Act aliens deportation, does not for there other statutes authorize give powers deport is this broad aliens. There disadvan tage Government, however, to the in connection with the other they deportation require a and the executive would statutes — away arbitrary with or not have to send them without reasons. I

express political ideas.7 now to an inter- agree cannot pretation life gives the Alien Act which new long repudiated speech press anti-free and anti-free philosophy of the Alien and Acts. I Sedition would long that philosophy people disinter which the have hoped Jefferson had he permanently buried when Thomas pardoned person last for violation of the convicted Alien and Sedition Acts.

Finally, I call attention what was said wish Circuit Judge Augustus Hand in this for speaking case himself and Judges Swan, Circuit Learned Hand and petitioner before whom argued his own Believ- cause. deportation ing the subject order before them was not judicial review, they no discussing saw reason

. . weight nature or of the Re- evidence before the patriation Hearing Board, or finding *20 . . . they “However, General But on face added: of the record it is hard to see should now why relator compelled be go to Of back. course much there not justify disclosed to step; pro- and it is of doubtful for a priety express subject court ever a opinion to on over which it has no power. Therefore, shall, we say should, no more than to justice may that suggest perhaps be if a better satisfied given reconsideration be him in light changed conditions, since the order of removal was made eighteen ago.” months 163 F. 2d at 144. I amiss, think,

It not my is be- suggest belief that opinion cause today’s individual will less liberty secure tomorrow than yesterday. it was Certainly of aliens is security lessened, if particularly their ideas happen be out of with of the harmony govern- those 7 Bowers, Hamilton, 1925, XVI, “Hysterics,” See Jefferson and c. XVII, Reign Morison, Otis, Terror”; c. “The Life of System VIII,

c. “A of Terror.” a removed is period. there authorities of And

mental liberty individual protect segment judicial is today’s judgment until arbitrary action, least from Court. Congress8 byor corrected whom Mr. Justice with Mur- Douglas, Mr. Justice Rutledge phy concur, dissenting. Justice Mr. open on habeas question I agree not that sole do enemy.1 an alien is in fact petitioner is whether the corpus arbitrary wholly is a writ delimitation the historic That judicial range I for a more narrow see no reason one. any out of corpus arising here than in habeas inquiry deportation proceeding. other protected is peacetime an alien undisputed It Fifth Amendment. process by the due clause Federal U. S. 228. Wong Wing v. United whether through corpus will then determine habeas courts Congress by appropri suggested opinion It is the Court’s “bona fide ating in 1947 to “return” alien enemies funds Attorney place may by the or be authorized residence to such other interpretation already approved General’s General” has deportation authorizing present of alien 1798 Act as hearing. But such affording them no strained enemies without a fair express Congress elsewhere inference can be drawn. did there purpose deny after the war these aliens a fair so, unwilling to it does am attribute to over. Until I requirement for attempted such violation of the constitutional process due of law. Supp. Watkins, 67 rel. Schlueter v. F. 1 See United States ex *21 170; Longo,

556, Supp. F. 853; 158 F. 2d v. 46 aff’d grounds, Uhl, 688, Supp. rev’d on other United States v. 46 F. Banning Penrose, 255 parte Gilroy, 110; v. 858; Ex F. 137 F. 2d 257 Bradley, F. 984; 252 parte Fronklin, v. 159; F. Ex 253 F. Minotto Clark, App. D. C. League v. 81 S. Citizens Protective U. Cf. Lacey States, 116, 290; 249 F. 625. In 155 F. 2d De v. United do and the statute Schlueter case it was held that the Constitution complain of hearing cannot require not thus an alien and hearing Supp. F. at 565. he did receive. 67 the character of the

185 upon procedures based order is deportation or not a Commissioner, Vajtauer v. of law. affording process due proc proceedings In due 103, 106. deportation 273 U. S. Tod, 264 S. (Tisi notice v. U. requires reasonable ess Wixon, 135, 156; 326 (Bridges a fair v. U. S. 134), hearing 8, 12; Low Wah Chin Yow v. United 208 U. S. Backus, 460), supported an order Suey v. U. S. and Commissioner, p. (Vajtauer supra, v. by some evidence And see 106; Wolf, 272, 274). v. 226 U. S. Zakonaite White, Kwock Jan Fat S. 454. v. U. instances rule of is not restricted to

The cases those provided hearing. where itself has for a Case, Japanese Immigrant U. S. decided process so held. The Court that case held due and required that had after notice deportation be hearing though there, here, prescribed even the statute wholly an procedure no but the matter such entrusted Consistently principle with that we executive officer.2 Wixon, in Bridges held a violation supra, that rules reached on habeas governing could be corpus, even Con- though prescribed by the rules were said, p. person The Court . no shall be 189 U. S. 101: . time, deprived liberty opportunity, of his without at some heard, officers, respect upon before such of the matters which that liberty depends necessarily opportunity upon regular, set —not occasion, according judicial procedure, and to the forms of but one vigorous contemplated Con prompt, that will secure the action gress, appropriate to the nature of the case at the same time be Therefore, upon required it is not which such officers are to act. Secretary Treasury any officer, competent for the executive statute, arbitrarily year time within the limited alien, subject country, and has become cause an who has entered although respects jurisdiction, part population, of its all to its and a alleged illegally here, custody deported to be to be taken into giving upon questions opportunity without him to be heard all involving right his in the No such remain United States. arbitrary power process principles can involved in due exist where recognized.” of law are *22 charge in agency the administrative

gress but p. 154: stated, proceeding. We deportation requirements procedural here with dealing “We are Though alien. of the protection prescribed proceeding, technically a criminal is not deportation and de- individual a on the great hardship it visits in work stay and live and right him of prives pen- a deportation That is this land of freedom. one—cannot be alty most serious times —at lest the be exercised care must doubted. Meticulous liberty deprived he is procedure which of fairness.” standards meet the essential The here. Presi- applicable principles The same by regulations dent has classified enemies only deportation general and has authorized applicability they because have adhered dangerous those deemed Peti- principles thereof. an government, in before the given tioner was fact Board in to one Repatriation Hearing addition Hearing The order for before the Alien Board. “upon deportation his consideration recites presented” Boards, evidence before those Proclamation, peti- deems General, in the words of the public peace safety “to to the dangerous tioner a gov- the United because he has adhered to is ernment with the United States at war or to which principle findings thereof.” Those and conclusions procedure by they and the were reached must process. requirements conform with the of due And procedure corpus put habeas the time-honored them to the test. inquiry type greater of case need no intrusion the affairs of the branch Executive

government inquiries corpus than by habeas in times of into peace a determination that the alien is considered to be an “undesirable resident of United States.” See a deter Eby, Mahler 264 U. 32. Both involve S. *23 procedural process satisfied, that due that mination is a fair upon and that the order be based hearing, there some evidence. summary

The needs of well require the hour A apprehension and detention of alien nation enemies. proce-

at need by time-consuming war not be detained while the enemy dures bores from within. But with an If bars, behind that he danger passed. has be deported is to hearing, after our constitutional requirements are one. It is hearing a fair to our foreign thought to defend a on the mock ground any that in it was a gratuity. event mere Hear- ings that are and unfair all arbitrary hearings are no system our under them government. Against habeas provides in corpus only protection. this case The notion that govern- the discretion of officer can process ment override due our foreign system. process perish Due does not when war It comes. is well established the war does not remove constitu- safeguarding tional limitations essential liberties. Home Blaisdell, Bldg. & Loan Assn. v. 290 U. S.