NIUKKANEN v. MCALEXANDER

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Argument of Joseph Forer

Chief Justice Earl Warren: Number 130, Willia Niukkanen, Petitioner, versus E. D. McAlexander.

Mr. Forer, proceed.

Mr. Joseph Forer: Mr. Chief Justice, may it please the Court.

This case comes here from the Ninth Circuit.

It challenges the validity of a deportation order that was entered against the petitioner based on a finding that the petitioner was a member of the Communist Party from 1937 to 1939.

The petitioner was born in Finland in 1908.

In 1909, when he was 9 months old, he entered this country and was admitted as an immigrant.

He has lived in the United States ever since.

He is married to a native-born citizen of the United States.

He has citizen step son.

His aged parents live here as do both his sisters.

In 1950, 11 years after the period of alleged Communist Party membership in this case, Congress for the first time enacted in the Internal Security Act, a requirement that all aliens who had been members of the Communist Party at anytime after entry must be expelled from the country.

In 1952, deportation proceedings were started against the petitioner under this provision.

Two witnesses testified that he had been member of the Communist Party in the period of 1937 and 1939.

He did not testify and a deportation order was issued.

The deportation proceeding was then reopened in order to allow the petitioner to apply for suspension of deportation as had become possible by reason of the enactment of the Immigration and Nationality Act of 1952.

Now at the reopened hearing, petitioner did testify and at the reopened hearing, he testified for the first time that he had never been a member of the Communist Party.

And he explained his failure to testify to that fact originally at the original hearing, by saying in effect that he figured that the original hearing that he did not have a chance when he saw that the service had produced two witnesses to testify contrary to the fact and particularly when one of the witnesses was a person who had never seen him in his life.

Justice John M. Harlan: Was he told at the original hearing an inference will be taken from his failure to take the stand?

Mr. Joseph Forer: He was.

He was, but as I say at the reopened hearing, he testified.

Now the --

Justice Charles E. Whittaker: In reopened hearing, may I ask, did the reopened hearing that you referred to, one directed to the question of deportation or to the question of discretionary relief?

Mr. Joseph Forer: It was reopened for the purpose of discretionary relief, but nevertheless, he testified on the subject of deportability which incidentally was also apparently considered relevant on discretionary relief.

And the special inquiry officer who presided at the reopened hearing chose to believe the services witnesses and disbelieved the petitioner and he repeated his finding of deportability.

He also denied suspension.

The Board of Immigration Appeals affirmed.

Following that came this Court's decision in Rowoldt against Perfetto and the petitioner moved the Board of Immigration Appeals as he could under the regulations to have the deportation case reopened and reconsidered in the light of the Rowoldt decision.

The Board of Immigration Appeals denied the motion and refused to reopen the proceeding on the ground that they were satisfied with the evidence in the light of Rowoldt and that the evidence satisfied the Rowoldt decision.

Then this litigation followed.

Justice Felix Frankfurter: Were briefs submitted on that motion before the Board?

Mr. Joseph Forer: There was argument whether or not there would be for the Board, there was an application which the brief did somewhat, yes.

Justice Felix Frankfurter: Do you say there's argument but was there an oral presentation?

Mr. Joseph Forer: There was both an oral presentation.

Justice Felix Frankfurter: So --

Mr. Joseph Forer: No.

I beg your pardon.

I'm – I'm wrong.

What was submitted was a motion which was an argumentative motion and the Board of Immigration Appeals did not just issue an order denying the motion, but reviewed the facts and – and the evidence and held that Rowoldt was not applicable.

Justice Felix Frankfurter: Is that in the record?

Is that in the record?

Mr. Joseph Forer: Before – the opinion of the BIA denying --

Justice Felix Frankfurter: On the denial of the Court.

Mr. Joseph Forer: Yes.

That is in the supplemental transcript of the record, it's the last BIA opinion in that volume.

Justice Felix Frankfurter: Supplemental?

Mr. Joseph Forer: Well the supplemental transcript of the record which contains all the relevant excerpts from the Immigration proceedings and at page 61 of the supplemental transcript is this Board -- Board's opinion.

Justice Felix Frankfurter: Is that a separate volume?

Mr. Joseph Forer: Yes.

There's a transcript of the record known as the separate supplemental transcript of the record which was printed late.

Now, the first issue in this case is whether the deportation order is justified by the evidence in the light of the Rowoldt case.

Now, in Rowoldt, this Court held in effect that the statute requiring the expulsion of aliens who had been members of the Communist Party did not include every member of the party in an organizational sense even though like Rowoldt, the individual had actually joined the party and been accepted by it as a member and the Court limited the term “member” for the purpose of the deportation statute to a person who had what the Court described as a meaningful association with the party and whose affiliation had what the Court described as political implication.

Now in the present case the evidence regarding membership and the nature of the membership can be summarized, I think, as follows.

The petitioner as I have said denied membership of any kind.

The service witness Knight however testified that he and the petitioner had been members of the same party unit from 1937 to 1939.

And Knight testified that during this time, the petitioner attended about 30 to 35 party meetings and then he paid him 25 cents a month.

He said that petitioner had been on the executive committee or executive board of the unit but he did not say for how long or what the petitioner did if anything in that capacity.

He did say that, the petitioner had never been an officer of the party.

He also testified that the petitioner was not interested or knowledgeable in communist theory or political discussions but said he was interested in the discussions of “bread and butter” and welfare topics.

And it is clear both from Knight's testimony and from the petitioner's testimony that the petitioner was and he is thoroughly ignorant of Communist Party doctrine and literature.

Now, the Board of Immigration Appeals expressed doubt about Knight's credibility, but it found that his testimony was corroborated by the second service witness, a man by the name of Wilmot.

Wilmot was in a different class than either the petitioner or Knight, both of them were working men, Wilmot was intellectual.

In the critical period he was the editor of an official C.I.O. newspaper which he testified was controlled by members of the Communist Party including himself.

Now, Wilmot did not claim like Knight, Wilmot did not claim to be a member of the same Communist Party unit or section as the petitioner but he testified that as editor of this paper and as a communist he would get around to various Communist Party sections and he testified that he saw the petitioner at some close party meetings and that he once saw the petitioner pay dues.

He also testified that the petitioner would come to the office of the C.I.O. newspaper which although, it was the C.I.O newspaper, he sort of callused with also being a communist organ, said petitioner would come to the office of the newspaper once or twice a month to get copies for circulation purposes.

And that on sometimes on those visits, he would sit in on discussions held by communists who were on the staff of the paper and Wilmot quotes these discussions, “close the party meetings”.

Wilmot said that he considered that petitioner was in what he called “the top fraction of the party”.

Now, I don't -- he didn't say what he meant by “top fraction” but if he meant anything significant, I think, it is clear from the record that this bit of testimony about “top fraction” which was relied on heavily below and it's relied on heavily by the Government was a wholly unsupported and unreliable piece of sheer opinion testimony which furthermore, is inconsistent with the testimony of Knight who was in a better position to know the facts.

I may say that when you read the opinion of the Board of Immigration Appeals and of the court below, they constantly emphasize the evidence against the petitioner and either slur over or ignore the evidence in favor of the petitioner.

The petitioner testified that he had never seen Wilmot in his life before the hearing and that Wilmot had never seen him.

Now, I think that a fair assessment of the government's evidence assuming that one disbelieves the petitioner is not more than that the petitioner had been organizationally a member of the Communist Party that he attended meetings, that he paid dues of 25 cents a month, that he was ignorant of and not interested in communist theory and literature but he was interested in discussions of “bread and butter” matter.

Now, this evidence it seems to me, falls far short of the evidence about Rowoldt whom this Court held was not a member of the Communist Party for the purposes of a deportation statute.

Chief Justice Earl Warren: Is there anything indicating what his educational background was, Mr. Forer?

Mr. Joseph Forer: I don't recall that. He was an ordinary working man.

He is a house painter.

Now, I believe -- I -- I believe that it is in the record he went through high school.

Rowoldt joined the party.

Rowoldt was accepted by the party.

Rowoldt paid dues and Rowoldt attended the meetings and that's the most if you can say about the petitioner here, but in addition, Rowoldt had intellectual and political sophistication that this petitioner doesn't have.

And unlike this petitioner, Rowoldt had read communist literature, he knew its language, he was interested in its view of society and there to some extent insofar as he understood the pack and he agreed with it and moreover Rowoldt carried out in assignment from the Communist Party.

He ran a party book shop.

Now, the government distinguishes Rowoldt on the ground that in Rowoldt, Rowoldt himself described the nature of his membership.

Now, the petitioner didn't do that here because he -- instead of describing the membership he denied it, but it seems to me, that the -- if what is important is the nature of the evidence then what is important is what the evidence shows or fails to show about the nature of the membership and not who the evidence and not whom the evidence came from.

Now, actually, it seems to me, in order to sustain this deportation order consistently with Rowoldt, you have to take the position and it's the position that has been taken by the Board of Immigration Appeals if not in this case, as I think, they had taken this case, in numerous cases.

You had to take the position that initially the obligation of the service is merely to prove organizational membership in the Communist Party.

Once the service does that then the burden is on the alien to give a convincing explanation that his membership was not sufficiently political, not sufficiently meaningful so as to bring him under the statute as construed by the Rowoldt case.

And on this theory if the alien does not give an adequate explanation of the nature of his membership and on credited denial it's obviously not an explanation then the service can infer meaningful membership that is deportable membership from nothing more that evidence of organizational membership or nondeportable membership and that's really, what I think, this case comes down to and I think, that that position is Rowoldt.

The service has the burden under the statute of proving that any alien against whom it proceeds for expulsion purposes is in a deportable class.

Now, that means that it must prove, in terms of the Communist Party class, not nearly that the alien had been a member of the Communist Party in some commonly accepted sense but that he was a member within the sense of the statute that they don't prove the latter, they are not entitled to deduce it solely from the former because that is shifting the burden approved to the alien and they have no right to do that.

Justice John M. Harlan: Does -- does this case bring up here a question relating to the propriety of denial of suspension of the deportation?

Mr. Joseph Forer: Unfortunately does was not the one of the question presented.

The denial of suspension was not ready sir.

Justice Felix Frankfurter: I take it, that the testimony of the petitioner in his application for suspension for deportation and filed with the clerk's office here?

Because --

Mr. Joseph Forer: Yes.

I mean --

Justice Felix Frankfurter: (Inaudible)

Mr. Joseph Forer: Yes.

The whole immigration record is -- is filed with clerk's office, certified record.

It covers everything, including the --

Justice Felix Frankfurter: That's the only testimony we have from him.

Mr. Joseph Forer: Well, he also --

Justice Felix Frankfurter: About which one can draw inferences bearing on the Chief Justice's question as to intellectual qualification?

Mr. Joseph Forer: Well, from him, yes.

Well, he also --

Justice Felix Frankfurter: From him --

Mr. Joseph Forer: -- except that he also testified in the habeas corpus proceeding and that testimony is --

Justice Felix Frankfurter: Is that here?

Mr. Joseph Forer: That's printed in the transcript, original transcript of the record, yes, and you can draw inferences from that as to his intellectual sophistication.

Well, I was talking about the burden of poof.

As I said, the burden approved is on the service to prove this meaningful membership and in Rowoldt, it seems to me, clear that the Court put on the service, the burden of proving from the solidity of proof that the membership was of the sufficiently meaningful kind.

Now, this case also turns, I think, not only on who has the burden of proof but on what's standard of proof you use in assessing the evidence.

Now, ordinarily in expulsion cases, the service decides according to preponderance of the evidence, which is the general standard of course in civil cases and it is our view that there is a certain class of expulsion cases, which I will define in a moment, in which there should be required a higher standard of proof through the preponderance of the evidence and that's the standard that this Court erected in the denaturalization cases and then transfer to the expatriation cases, namely a standard requiring, clear, convincing and unequivocal evidence which does not leave the issue in doubt and if that standard were applied to this case it would have to be concluded, I think, that the burden of proving that petitioner is deportable was not carried not only under the Rowoldt but even as to whether petitioner was ever any kind of a member of a Communist Party.

Justice Felix Frankfurter: Mr. Forer has -- has this Court or have the Court of Appeals dealt either by way of decision, I am sure we haven't, by way of decision or comment on the proposition which you are now urging here?

Mr. Joseph Forer: No.

I haven't, I think, that in effect that was the test applied in Bridges against Wixon, but it has never been articulated, it has not.

Now, I want now, to describe the two classes of expellable aliens as to one of which, I think, you should have -- erect a higher a standard of proof, then I will explain why we think that is so, if you look at the statutory clauses for expulsion of aliens as they are collected for instance in Section 241 of the current Immigration Nationality Act, you can already see right from the face of them that they fall into two -- two classes.

The clauses in the first class can be described as a kind of deferred exclusion because on their face, their purpose is to aid the screening of arriving aliens and basically they require the expulsion of aliens who are in this country for clauses which existed at the time of entry and they deal with aliens who either were not admitted for permanent residents in the first place or would not have been admitted for permanent residence in the first place if at the time of entry all pertinent facts were known.

And if I might give examples of this, you have the aliens who are expellable because they entered without inspection or because although they were admitted, they were in fact for reasons that no one knew about excludable by law at the time of entry or they are paid entry papers by fraud or they became institutionalized or public charges within five years after entry, but for reasons which appear at the attributable to the conditions which existed at the time of entry or they entered for a limited time or purpose and overstayed their leave.

Now, the great majority of deportations and I'm not talking about exclusions, I'm talking about expulsions, the great majority of expulsions are for such clauses and they involve people, for the most part, who have not had long residence in this country and who were not entitled to act on any assumption that they have been accepted for permanent residence.

Now the second class of expellable aliens consist of those who were lawfully and regularly admitted for permanent residence as to whom there was no mistake on admitting them, who made their homes here in reliance on their screening and acceptance by the Government, but who then become expellable solely for conduct which occurred after entry and which cannot be trudged to or derive from conditions existing at the time of entry.

Now, these expulsions comprise only about one-sixth of the total deportation or total expulsions which occur in the 40-year period from 1908 to 1948 and these aliens fall into four major groupings.

The majority of them, the great bulk of them, are aliens convicted of certain crimes who are deportable for that.

Then there's another group, aliens who become narcotic addicts.

Then there's a third group, aliens who become prostitutes or go into the business of prostitution and finally what they called the “subversive aliens,” the aliens who become expellable on communist or anarchist grounds or something that --

Justice Felix Frankfurter: That is the first two of the vast category that you just mentioned is there a time limit within which the disqualifying presence must occur?

Mr. Joseph Forer: No.

There is none.

Justice Felix Frankfurter: So that -- so that --

Mr. Joseph Forer: There is --

Justice Felix Frankfurter: -- negotiation you have been saying is length of residence.

Mr. Joseph Forer: That is correct.

Justice Felix Frankfurter: And the cases that have come before us, have been cases of long residences?

Mr. Joseph Forer: That is correct and that certainly includes that.

Now, these aliens in the second class, that is who were regularly admitted frequently even normally, to have long-term residents here and in reliance on their having been admitted and accepted for this country, they've acquired families here, they have acquired property here, their roots are here.

From a sociological point of view they're Americans.

The petitioner here is not Fin, he's an American.

No matter what technically, he can be called in the law of nation.

Furthermore, the post entry conduct that makes these aliens considered undesirable for continued residency here comes from our society.

It doesn't come from the country of origin.

It was America that made this petitioner a communist.

It wasn't Finland which he left when he was nine months old.

And then these cases too, the evidence characteristically goes back for years the events long remote in time and to events frequently, which when they occurred, were not grounds for deportation.

Justice Felix Frankfurter: All you can say that he became a communist in America not with American native one.

Mr. Joseph Forer: Well, what --

Justice Felix Frankfurter: It's a geographic fact and no more?

Mr. Joseph Forer: He became a communist, it seems to me in rebellion against the society we had in America not in rebellion against the society --

Justice Felix Frankfurter: Is that all spelled out in his testimony?

Mr. Joseph Forer: I don't know why anybody else becomes a communist.

In other words, his testimony denied he hadn't been a communist.

Justice Felix Frankfurter: (Voice Overlap) complicated question in there (Voice Overlap)

Mr. Joseph Forer: Well -- well, I'm not sure if I can answer [Attempt to Laughter] it satisfactory but that's how it seemed to me.

When these aliens in the second class are expelled, they're not being sent back to their -- the land they come from in the sense of aid of exclusion.

They're being banished from what is really their home and they're being sent back is not a regulation of immigration.

It's not a regulation of the immigration here with Finland.

They're being sent back because Congress decided it didn't like the particular kind of conduct they engaged in.

Now the Immigration and Nationality Act says, “That deportation orders, in order to be valid, have to be supported by reasonable, substantial, and probative evidence.”

Now, I say that it is not unreasonable to have a preponderance of evidence test for the expulsion of the first class of aliens.

Those who -- whose expulsion is basically a deferred explosion, and they are not being deprived of any lawful established states, but a second, a higher standard of proof is reasonable for the second class of aliens, those that are being banished.

Justice Felix Frankfurter: Is there a time limit within which your first class can be deported?

Mr. Joseph Forer: No, but --

Justice Felix Frankfurter: So that in those cases --

Mr. Joseph Forer: -- as soon as they are caught.

Justice Felix Frankfurter: -- in those cases too, you have had long residence.

Mr. Joseph Forer: That is correct, but normally, it is not -- that is not the case.

Justice Felix Frankfurter: That were not and you would do this statistically --

Mr. Joseph Forer: It is possible.

Justice Felix Frankfurter: -- this hour?

Mr. Joseph Forer: Yes.

Yes.

Justice Felix Frankfurter: Where is such a study?

Mr. Joseph Forer: Well, you can get them from some of the -- from the -- I believe, the report of the President's commission and there are numerous other sources, including the reports of the Immigration services.

Now, in the denaturalization cases, you erected a higher standard of proofd than in the ordinary civil case because of the harshness of uprooting a person from the society of which he is a part.

And also because, I think, you realize that denaturalization cases, since they are not subject to any statute of limitations, frequently involved long past occurrences and stale evidence.

Justice Felix Frankfurter: Is there any indication why this man never got the citizenship papers?

Mr. Joseph Forer: It's very obscure.

He applied for citizenship papers and it dragged on for years and -- then they -- they didn't grant it then they wrote him saying that they were throwing his application out because of the failure of prosecution.

That's all the record shows.

Justice Tom C. Clark: When did (Inaudible)

Mr. Joseph Forer: I don't know the date of hand.

Now, these same features that he is being uprooted from his society and that there is no statute of limitations and -- and he's being uprooted because of long past recurrence, these same features which induce you to adopt a higher standard of proof in denaturalization cases are present and consistently present in the second kind of expulsion cases, the real banishment cases.

And for the same reasons you should adopt the higher standard of proof.

And in fact, the higher standard of proof is more necessary in the expulsion cases because at least in the denaturalization cases, the individual is guaranteed a judicial trial and in the expulsion cases he is guaranteed only an administrative hearing.

Justice Felix Frankfurter: Well, he -- he is -- he is guaranteed a judicial trial because he was a citizen.

I mean, that – that --

Mr. Joseph Forer: Because of great citizenship.

Justice Felix Frankfurter: (Inaudible) citizenship.

Mr. Joseph Forer: This man is not a citizen.

Justice Felix Frankfurter: Yes.

I think he isn't but the denaturalization cases are citizens.

Mr. Joseph Forer: That's right.

Justice Felix Frankfurter: And there is a great big difference between being a citizen and not a citizen.

Mr. Joseph Forer: I know.

I know there is a big difference but what I am trying to say is that the consequences here are very similar.

I mean, as a matter of fact the consequences here is even harsher and the -- aside from the fact that one is technically a citizen and the other isn't, you are doing the same thing to the individual.

Justice Felix Frankfurter: But the citi -- citizenship isn't a technicality, Mr. Forer.

Mr. Joseph Forer: I'm not saying it's a technicality, but I am saying, what you're doing to him justifies him, I think it requires the higher standard of proof.

And I think, that that was really -- that degree of standard of proof was applied by this Court in Bridges against Wixon.

And in Jordan against De George you carried over a criminal test, a test of criminal statute, to deportation, to expulsion precisely for the same reason.

And it would not be unreasonable therefore to carry over what amounts to a proof beyond unreasonable doubt.

I would like to, in my part of the argument, just say a one word about the meaning of the word “member of the Communist Party in the deportation statute”.

Now I think both the Government and we agree that it would be good if there could be a more specific definition of that term than is supplied in the Rowoldt case.

Fortunately, such a definition or more specific definition has been proposed by the Solicitor General.

He hasn't proposed it in this case.

He hasn't proposed it for the purposes of deportation statute, but he did propose it in the Scales case and he has proposed it in the Scales case for the purpose of the membership clause of the Smith Act.

And this meaning was given to the jury in Scales' the second trial at the request of the Government.

Now, the theory of the definition is that the Solicitor General advanced in Scales, as I understand it, is that the Communist Party is such a special kind of organization that it has two kinds of members.

One are the real members, the active people, the people that really contribute to the purposes, the sinister purposes attributed to the party, it says, “They are the people that Congress really has in mind, the stereotype of Communist Party members in anti-communist legislation.

Then there are a lot of other members or at least some other members who are unofficial members.

They think their members but they're not members in the sense that Congress had in mind and they are not the active members and the Solicitor General's definition of between the active member and the nonactive member and he helps us, what he calls – he defines active member.

And the suggestion he made on defining active member for the purposes of the Smith Act ,which I suggest you translate to the deportation statute, is that a member is active if “he might know -- that he is one who “must have voted all or a substantial part of his time and efforts to the party”.

Now if that definition is a test, obviously it wasn't meant here.

And obviously, it seems to me, that this test of activity is the minimum needed to make any sense out of the statute.

It makes no sense, I think.

It is just the irrational and cruel to banish a person from the land where he's lived all his life except for the first nine months and to destroy his family of Americans for what?

Merely for attending years back some meetings and paying 25 cents a month due and otherwise being inactive, innocent and thoroughly uninformed member of the Communist Party or any other organization.

At a minimum, and this minimum would be supplied by the Solicitor General's activity test, at a minimum you should require that there'd be a showing that this alleged member did something to substantially promote the organization and its activities beyond just belonging to it in a routine sort of way.

Justice John M. Harlan: Perhaps this is irrelevant or collateral, but did the service give any reason for declining to suspend deportation?

Mr. Joseph Forer: Yes.

They did and I think it is quite relevant because if you look at the reasons given the entire time, I agree to -- to the Court, the reasons are, first, that he showed reluctance to be an informer, when they asked him who attended certain meetings of the Oregon committee (Inaudible).

And their theory, it seems to be, that the only people that are reluctant to be reformers are unreformed communist, and secondly, that -- that he had joined the Methodist Federation for Social Action after he has been ordered, deported, and that he didn't -- and that he didn't think very much of the Immigration Nationality Act.

All this is a particularly plain in the opinion of the special inquiry officer, at page, beginning at page 54 of the supplemental printed record.

And those were the reasons incidentally that they considered that the witness, that -- that the petitioner was not entitled to credence in denying membership in the Communist Party.

Mr. Peterson will continue with the argument.

Argument of Nels Peterson

Mr. Nels Peterson: May it please the Court.

Chief Justice Earl Warren: Mr. Peterson.

Mr. Nels Peterson: Let me say at the outset that I shall address my argument to the constitutional aspects of the Internal Security Act of 1950 upon which this man was arrested.

Let me further say that I'm a little a bit odd to stand up here and (Inaudible) in part the arguments have made -- were made by Joseph. H. Choate in 1893 in the case Fong Haw Tan that has been referred to by this Court.

In arguing the constitutional -- the constitutionality of this Act, I shall address my remarks that this Act is a bill of attainder, it's an ex post facto law or denies due process or denies freedom of speech under the First Amendment.

Now in the setting of the control of the immigrants, I think it must be understood that when the Constitution was adopted mostly by lawyers in 1787, that they -- this was -- these were people who were immigrants themselves.

Immigrant has a special meaning and connotation.

Everyone who -- that they are persons that people of this land as of that time were immigrants.

The bills of attainder and ex post facto of the laws were well known to the lawyers who drafted the Constitution.

Now, in the body of the Constitution there is no -- there is no division between the citizen and person.

It's is the Constitution directs itself to people and to persons.

The -- in the first article of the body of the Constitution that was put in by the constitutional convention, the drafters of the Constitution they put in -- in the first article that their -- that Congress shall pass no bill of attainder nor ex post facto of law.

Now, when that was submitted to the people in 1789, they -- they added the first ten amendments.

Now the -- the First Amendment was not directed to citizens, it was directed to persons.

The Fifth Amendment guaranteeing due process was directed to persons.

So in that setting then, we must now look then at what is the extreme of constitutional history as it relates to this problem.

The Constitution also provided that the Congress could enact and would -- and was delegated authority to enact a uniform method of naturalization.

The body of the Constitution also directed that the Federal Government could regulate foreign commerce.

Now, there -- there is no specific provision in the Constitution about deportation of aliens that's the essence of what has been included in the body of the Constitution.

Now, in that light, I would like to call the Court's attention to the first case that I can find where this Court had occasion to look at the question of bill of attainder.

In 1782, the sovereign State of Georgia passed a law in which the legislative body said that, “Any person who had supported the British in the revolution was banished and had no rights to the courts.

Mr. Cooper was -- apparently had lived in Georgia had supported the British king and he sued on a 1000 pound note.

The defense was that he had no rights to the courts of Georgia.

Now the Circuit Court of Georgia sustained that defense.

The Supreme Court of Georgia did likewise.

This Court in 1800 reviewed that legislation and reviewed this defense, in the four opinions.

The -- it was said that in two of opinions, that since it did not appear from the record that Mr. -- that Mr. Cooper was -- had committed the act of treason in any county in Georgia, it -- they're forced then not a bill attainder meaning and accepting the -- then well know definition of a bill of attainder, that is a legislative act which imposes a punishment and substitute the word penalty because it means pains and penalties less than death, historically without a judicial trial.

And so therefore, they said there was no denial of a judicial trial when it did not appear from the record that he was triable for treason in any county in Georgia.

Now, -- but in any event Mr. Justice Chase said I question the power of -- of the Supreme Court of the United States to declare invalid a legislative act of a State, this was before Marbury versus Madison in the whole stream of history -- of judicial history of Baghdad.

The -- but they said in any event this was an act passed in 1782 before the adoption of the United States Constitution.

Now, the -- the next it seems that the bill -- bill of attainders, historically and before the adoption of the Constitution has arisen from legislation that occurred during a period of great political excitement.

In following the civil war, you have the illustration of the Constitution of -- of State of Missouri which imposed a test oath, a person had to sign an affidavit to preach, to teach, to be a lawyer, among other things.

He had to sign a test oath that he had not supported the south.

Cummings is a Catholic priest, went on preaching anyway without the test oath and without being licensed by Missouri.

This Court struck it down and said a bill of attainder because the purpose of this legislation was to impose a punishment, a penalty, against a class of persons.

The same -- on the same, the very same day, the Ex parte Garland decided by this Court, a lawyer not admitted -- admitted to this Court in 1860 who pleaded his own case and Congress had passed a law and saying that no one could be admitted to practice in the supreme Court unless they took a test oath all of the same as Cummings essentially and they have not supported the south.

Mr. Garland, a lawyer said the he could not take such oath because he had supported the south, he had been convicted, and he had been pardoned by the President.

They struck it down said “bill of attainder,” this is a deprivation of -- it's a legislative act which imposes a penalty without a judicial trial.

Now, the next great case on the -- and which is the most comprehensive, it seems to me on the bill of attainder, is United States versus Lovett.

1943, there was a legislative act, passed in the middle of World War II, a period of great political excitement against -- directed against Mr. Dodd, Mr. Watson, and Robert Morss Lovett withholding their salaries, stricken down by this Court as a bill of attainder.

Now, the next case is that has been decided by this Court is A.C.A. versus Douds where it was said that that was not a bill of attainder, the Act of Congress which required a noncommunist affidavit from a labor union official was not a bill of attainder because it had a prospective effect and there was a choice given.

Now with that background and assuming that this Court will agree that, as it has said before in contrary to Fong Haw Tan decided in 1893 on the -- on the Chinese exclusion legislation, that this is an exercise of a constitutional power, the power to regulate commerce and not upon an inherent sovereignty power.

That was Mr. Gray -- Mr. Justice Gray's opinion in Fong Haw Tan decided in 1893, where he said that the -- this was an exercise of the inherent sovereignty power.

Mr. Justice Brewer wrote a stinging dissent and he said, “No there is no end to this doctrine of inherent sovereign power because it's not spelled out in the Constitution,” no one knows it's in.

Mr. Brewer -- Mr. Justice Brewer dissented as well as Mr. Chief Justice Fuller and there Mr. Justice Field.

Now, looked at in that part, here's an Act passed in 1950 during the Korean War and after the atom bomb, they (inaudible) political excitement.

The Act is Internal Security Act, insofar as it relates to the declarations about the Communist Party in the United States speaks as of the present, 1950.

It does not say that the Communist Party in the 1930s or anytime passed, why it speaks -- it is used in the present tense.

Now, however the Act where it says that anytime after entry, a person who has been found to be a member is -- can be deported.

It has been given a retroactive effect and it has been applied to this man.

The warrant of arrest upon which he was arrested said, the base upon evidence that the immigration department had and since entry and that he'd entered the country in 1909.

They don't question so far as the knowledge of the person is concerned and the statute of limitation, there is none, no one could know.

Well, what time the Government would claim that he had been a member of the Communist Party after 1909.

Now with that-- with that setting in mind, the -- and assuming that the Congress has the power to regulate commerce then all of the provisions of the Constitution then applies.

This I say is punishment.

This Court has said it is punishment for deportation for a person to be deported.

It is -- it has a retroactive effect imposing a penalty for that which was innocent when done.

Now, I recognize that this Court in the Harisiades case decided in 1952 in construing the Alien Registration Act of 1940 said that, “the ex post facto provision of the Constitution was limited to criminal punishment and therefore the ex post facto provision of the Constitution did not apply.

We think the premise upon which that has been made is incorrect.

We think that the Harisiades decision should be overruled.

Now, getting down further then to the question of whether or not the, this is a valid constitutional exercise of a -- of a specific provision with the Constitution respecting regulation of foreign commerce, we think that the -- that then -- that due process would require under the Fifth Amendment which says, persons that due process would require that -- if they proved by a proof that is equivalent to proof beyond a reasonable doubt or by clear, convincing an unequivocal evidence which is required in that in denaturalization proceedings.

Now, Mr. -- the American Committee for Protection of Foreign Born has been permitted to file a brief amicus curiae cited as one of the citations there as a rather comprehensive and complete annual analysis of the various questions on deportation, entitled the constitutional status of lawfully admitted, permanent resident aliens published in Yale Law Journal of 1959.

There is an exhaustive analysis of every case that has been decided this Court.

Now in the -- getting down to the case of Galvan versus Press, Mr. Justice Frankfurter in writing the opinion, impliedly recognized the -- a separate status for the person who has been admitted for lawful permanent residence.

He occupies a status that is different from the illegal entry, the temporary resident, or the person who has been erroneously admitted.

The cases we've cited in Galvan versus Press were Bugajewitz and Fong Haw Tan.

Now the -- if we look at the case of Bugajewitz, it was really a case where the Congress had -- was controlling entry into this country.

They -- the Bugajewitz case, the only thing that was involved there was the conclusive presumption, established that a prostitute who became a prostitute within three years was deemed to be have been illegally admitted.

Mr. Justice Holmes said that a three-year statute of limitations or a three-year basis to which we go back, formed a reasonable -- formed a reasonable basis to impose a condition to raise the -- to support the presumption and thus due process.

The -- I see that my time is about up.

I submit Your Honors that this is a case of fundamental importance and I do want to say that the -- in respect to the question asked by one of the justices that the suspension of deportation was raised before the Ninth Circuit of Court of Appeals and this Court denied certiorari in December 1957, eight days after Rowoldt versus Perfetto.

The -- when the Court denied certiorari at that time, we thought this question was precluded.

It had been passed upon by the Federal District Court and the Ninth Circuit Court of Appeals and this Court had denied certiorari.

The present appeal arise from -- arises from an additional petition filed in the Federal District Court for injunctive relief and for a writ of habeas corpus.

And that how -- that's how Communist gets before this Court.

We thought we were precluding from raising the question of suspension, denial of suspension of deportation.

The -- and there it – therefore it's not before this Court.

Now, to summarize the -- it would appear to me that a proper construction of this Act that is involved here then would be based upon a constitutional exercise of power by the Congress of the United States to regulate commerce and not upon any ideas of inherent sovereignty.

But then every other constitutional guarantee as this Court has said before applies to the person who is here all of the other constitutional guarantees apply.

And that a distinction can and should be made as to the person who has been lawfully admitted for permanent residence than the illegal entrant, the temporary entrant, or the person who has been erroneously admitted, a separate status should -- should apply to that person.

Justice Charles E. Whittaker: What is the finding -- understanding it more fully the distinction.

The distinction you make is that one of quantum of proof that requiring one and not from the others, or what is the difference?

Mr. Nels Peterson: Well, now the -- every -- the difference is and it should be that the bill of attainder should apply to the person, that the person who has been admitted for lawful residence is entitled to protection of ex post facto law.

That the person is entitled to the Due Process Clause of the Fifth Amendment, that no person shall be deprived of life, liberty, or property without due process of law.

And he has the right of freedom of speech and assembly in the First Amendment.

It should be guaranteed to him.

The -- and that here is a first this act as it applies to Mackie.

It -- there are elements of a bill of attainder every element of the bill of attainder particularly in the Lovett is present.

Every element of an ex post facto law is present except this is not criminal punishment.

The Court has said it's not criminal punishment.

If this -- it is not -- it has not been thought that any citizen could be deprived of a jury trial if a penalty was to be imposed upon him of this kind.

The -- he would be entitled to the rules of evidence.

They're not -- it's not enough they're followed here in this administrative proceeding.

There is no guarantee for a trial in any sense.

This is an administrative hearing where the rules of evidence are not followed.

Where the -- the residing officer is not a lawyer, the prosecutor so to speak is not a lawyer.

These are fundamental guarantees to -- to liberty.

Now it seems to me that this case presents again, this Court has issued, I think, this is the fourth certiorari in this kind of case and I say that this -- what this Court does today in this case if we over abuse to say -- say that this is not a valid exercise of constitutional power, you will strike a blow for liberty, you will give meaning to Emma Lazarus' poem on the statute of Liberty.

Thank you very much.

Chief Justice Earl Warren: Mr. Davis.

Argument of Oscar H. Davis

Mr. Oscar H. Davis: Mr. Chief Justice may it please the Court.

It maybe helpful if I point out at the beginning of my argument that the original record in the case was simply, the record, which is labeled transcript of record, which contains almost none of the Immigration proceedings, but does contain the proceedings before the District Court.

The briefs on both sides were written on the basis of this printed record alone and references were made to the unprinted immigration file, which is on file with the clerk.

After the briefs were written, the supplemental transcript of record was printed at the instance of the petitioner.

I say this because the Court will not find a correspondence between the page references in the briefs to the immigration file and this printed record.

Though I think the clerk has been helpful in putting folio references to help you discover the various pages.

I think I should also point out though, Mr. Peterson, adverted to it at the end of his argument that this is the second go round in this case.

Petitioner filed a petition for habeas corpus and declaratory relief originally which was denied by Judge Solomon in Oregon after the denial of suspension of deportation and after the finding of deportability.

That was taken to the Ninth Circuit which affirmed.

A petition for certiorari was filed on this Court.

This Court held that petition for certiorari until one week after the Rowoldt decision and then denied that petition for certiorari along with two or three others which were being held pending Rowoldt.

The petitioner then applied, as has been indicated to the Board of Immigration Appeals for reconsideration on the basis of the Rowoldt decision.

The Board of Immigration Appeals did reconsider on the basis of the Rowoldt decision, reaffirmed its own original determination.

Petitioner then brought the present suit in the District Court in Oregon and it is that which is here.

Now, on that present suit, the petitioner asked for leave to proceed with oral evidence before the District Court in Oregon and Judge Solomon thought that that was improper as did the Government believe, but he allowed the petitioner to present evidence including the petitioner's own evidence before the Court.

After that hearing at which Judge Solomon said, “I do not believe the petitioner.

I've been through the immigration file.

I do not believe this petitioner has testified before me.

I do believe as did the administrative officials that the opposing evidence presented before the administrative tribunal was credible.”

Judge Solomon reaffirmed his -- his conclusion that the petitioner was the deportable and that conclusion was affirmed again by the Court of Appeals and the case is now here on this petition for certiorari.

Therefore, if I may summarize, the case has had three reviews before the Board of Immigration Appeals.

It had its first review after the original order of deportation.

It had its second review before the Board of Immigration Appeals after the denial suspension of deportation and it had its third review after the Rowoldt decision.

It has had two reviews before the District Court in Oregon, as I indicated, and it has two -- had two reviews before the Court of Appeals for the Ninth Circuit.

I say this because this Court has indicated perhaps mainly in other cases but also, I think, somewhat in immigration cases that it will pay attention to -- on a fair assessment of the record made by the lower courts in this field as well as in others.

And it will not review de novo for itself on assessment of the record made by lower courts.

Justice Felix Frankfurter: As I understand that there were two hearings before Judge Solomon.

Mr. Oscar H. Davis: The first one did not entail any oral evidence.

The first one did not, but it was a review on the administrative record.

The second one did entail oral evidence and before him.

Now, turning first to the statutory and factual issues, it has been claimed here after the briefs were filed and so, we do not discuss it in our brief, it's claimed here on oral argument that the standard of deportability for a long time resident is different from the ordinary standard which is applicable in civil proceedings generally, that it is the higher standard applicable in criminal proceedings or in denaturalization or expatriation cases.

We, of course, denied that this is so and we denied that is so because it is now some 70 years since Congress has been passing broad deportation statutes.

And it is 70 years since Congress has dealt with the subject and since this Court and the lower courts have dealt with this subject.

And we cannot find in any of this -- this legislation or in any of the decisions of this Court or the lower courts any such distinction between on -- with respect to deportability on the basis of the length of residence of the -- of the individual or on the basis of whether the deportation is related to original entry or whether it arises from some cause which later occurred.

There are hosted decisions in the lower courts and a fair number of decisions in this Court, all of which apply the usual role of substantial evidence without exception.

In fact in some them cases -- cases written by Justice Brandeis and Justice Stone, the phrase has given some evidence to support the deportation.

And in Bridges against Wixon to which reference was made, Mr. Justice Douglas for the Court also used that phrase some evidence.

And the Court has never even intimated nor have any of the lower courts that a higher standard, the standard of denaturalization should apply in deportation cases nor has Congress in any of the statutes made any exemption.

You will not find in this statute which is the Immigration and Nationality Act of 1952 or in any of the preceding statutes, any distinction such as has been suggested at the bar of this Court.

So, I think -- I think, I fairly stated when I say that until very recently and not until probably today before this Court has it been seriously urged that there is a separate standard for deportations of people who have been long resident in this country.

Now, an effort is made to say that the prior rule was changed by the 1952 McCarran-Walter Act because the 1952 statute did spell out for the first time various procedural requirements which should be followed in the administrative proceeding.

It said that the Attorney General shall prescribe by regulation and certain requirements shall be followed and one of the requirements that was prescribed by the statute was that the -- an order of deportation should be entered only on substantial, probative, and reasonable evidence, substantial, probative and reasonable evidence.

An effort is made to read into that language, a requirement of the higher standard to which counsel has referred.

We think that this is clearly an incorrect argument.

Not only was the prior law both in the statute and in the cases all the other way, but Congressmen (Inaudible) to prepare the 1952 statute when the Senate Committee set forth what it considered, the prior law to be, it said explicitly that the prior law was the general rule applicable in administrative and civil cases, the preponderance of the evidence standard, the substantial evidence standard.

There is no indication in the legislative history of any attempt to change that standard.

The Senate and the house reports referred to the -- this -- this phrase substantial, probative, and reasonable evidence as simply an incorporation of the -- of the prior law and they indicate fairly that it means that a reviewing tribunal is not to overturn the finding simply because it disagrees with it, but if -- if the finding is based on substantial, probative, and reasonable evidence.

But perhaps most persuasive of all, to my mind, is the fact that the Administrative Procedure Act which, of course, antedated the 1952 statute contains the similar standard.

It says, “reliable, probative and substantial evidence”.

And this Court in the Marcello opinion of Mr. Justice Clark for that Court said quite clearly and explicitly, that the 1952 Immigration Standard is the same as the Administrative Procedure Act Standard of few prior years.

And of course, there has never been any claim by anybody that the Administrative Procedure Act Standard adopts any special higher standard for administrative proceeding as generally.

Now, the standard which -- which counsel present to that Court clear, convincing, and unequivocal evidence has been accepted and limited by the Court only to cases in which it has -- it has admitted that a man or woman once had citizenship and the Government claims that he has lost it.

It is -- been limited to that.

That is when the Government is claiming when a man is either lost or should have his citizenship taken away and it is in that area only that that Court has accepted or established a clear, convincing, and unequivocal standard.

In particular that Court has not accepted that standard where an alien claims that he's a citizen, where an alien claims, “I am a citizen”.

The Court has accepted the preponderance of the evidence standard there.

It is only when you have once been found to be a citizen, when you've once been found to be a citizen and the issue is whether you have lost that citizenship or have it -- had it taken away from you that the higher standard has been applied either by this Court or by the lower courts.

So, we think that that there is nothing to the argument that -- that that 1952 statute established a higher standard and I think, it's correct to say that none of the lower courts since the 1952 Act went into effect have applied any higher standard regardless of the length of time where the resident was here.

And as my last word on that issue, I think, I should also say that the Court has applied the regular standard in many cases in which there was a long time residence by the person.

It itself is not indicated either in the Chinese deportation cases which some which involved people who have been here, a decade or two decades or in the later cases involving deportation which have come through the years that there was any difference depending on length of residence.

Justice Felix Frankfurter: Mr. Davis, in the cases involving the issue of citizenship, not denaturalization, but when the issue of citizenship is tended there, the courts have been explicit that the quantum of evidence required is irregular?

Mr. Oscar H. Davis: The lower courts have been explicit.

Justice Felix Frankfurter: No.

Mr. Oscar H. Davis: This Court --

Justice Felix Frankfurter: Is that has been --

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: -- (inaudible) and decided.

Mr. Oscar H. Davis: That's right.

That in -- where the issue is an issue of citizenship preponderance to the evidence is enough.

Both ways, Mr. Justice, either when the Government wins and the Court holds that the -- that the man was an alien and not a citizen or where the Court holds that the man was a citizen.

Both ways it's been held by the lower courts that the preponderance was enough.

Now as to the -- the particular facts of this case, which in my view, have only been stated partially by counsel for petitioner.

First, I should say, Mr. Chief Justice, the record does show that the petitioner is a high school graduate and from Portland High School.

I should also explain that the petitioner has gone in this country under the name Mackie M.A.C.K.I.E. so you will find in both the judicial and the administrative record, constant references to Mackie rather than to the name Niukkanen under which -- which is his Finish name under which the petition was filed here.

Justice Hugo L. Black: Is there any significance to that?

Mr. Oscar H. Davis: No.

I just say it for the benefit of the Court because you will find references constantly --

Justice Felix Frankfurter: The way it wanted it, if we look at the record as I've paused around and I saw Mackie now Niukkanen.

Mr. Oscar H. Davis: Yes, Mackie is the petitioner.

He has gone under the name of William Mackie.

And as -- Mr. Justice Clark, as far as the record shows, he applied for naturalization first in 1935.

The record doesn't show what happened to that.

He apparently tried again because the record does indicate that for the second or third time he applied in January 1942 and then it does indicate that in -- in 1946 his application for denaturalization was dismissed for wanted of prosecution on his part.

So that's all that the record here -- the immigration followed the judicial record indicates as to his -- his applications for naturalization.

Now as has been indicated by counsel, two live witnesses appeared before the special inquiry officer and they were examined and extensively cross-examined by counsel for the petitioner.

Their testimony was credited by the special inquiry officer and on the whole by the Board of Immigration Appeals, Judge Solomon on review says explicitly in the record that I have read the record and I credit the testimony of Bob Wilmot and Knight and I do not credit the testimony of the petitioner either before the Board of Immigration Appeals or before me.

Justice Felix Frankfurter: It was one of these two that the petitioner said he never saw him (Voice Overlap) never laid eyes on him.

Mr. Oscar H. Davis: It is Mr. Wilmot that he said he never seen.

Justice John M. Harlan: What page is that to be that we found on?

Mr. Oscar H. Davis: That it's in the -- in the regular transcript of the testimony, page 78 at the bottom, Mr. Justice Harlan.

And again at page 83 at the top 78 --

Justice John M. Harlan: Oh, yes.

Mr. Oscar H. Davis: -- and 83.

Now, what did these witnesses testified to?

They testified that the petitioner has attended many close party meetings?

Knight himself said there were 30 to 35 that he intended with the petitioner.

And they were very definite that these were not any ordinary meeting that they were closed party meetings.

Wilmot also testified that there were closed party meetings that he attended to with petitioner.

Both of them saw that he had party card.

Both of them testified that he had a Communist Party card.

Both testified that they saw him pay dues.

Knight testified that though petitioner was not an officer of the Albina Branch, Albina is a section of Portland and the branch of the Communist Party to which both he and Knight joined was the Albina branch, that though he was not an officer, he was on the executive board of the branch and this is an important factor which Mr. Forer failed to mention.

Wilmot testified that he and the petitioner attended a party Plenum P.L.E.N.U.M. in Aberdeen, Washington which was to be a meeting of top officials or top persons in the party for the northwest area, that both he and petitioner attended this Plenum at Aberdeen, Washington.

He testified that the people went there such as petitioner and he were the anointed ones, were the top fraction ones, that they were known to the people who are carrying on this -- this meeting.

Both Knight and Wilmot indicated that the petitioner was a top fraction man.

He was a good member as I have said, that he was an anointed one.

Justice John M. Harlan: Is that word Plenum a word of ours, I never heard that before?

Mr. Oscar H. Davis: I think it's the word used in Communist Party parliament.

So it's a meaning a gathering, wider than a small -- a unit gathering or a large.

Justice Felix Frankfurter: It's like our word plenary.

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: It's plain, that's all.

Mr. Oscar H. Davis: I think that's right.

Justice Felix Frankfurter: It's (inaudible)

Mr. Oscar H. Davis: Yes.

And there -- they were cross-examined as -- as to this by petitioner's counsel and they explained perhaps more footing on cross examination and they did on direct exactly what went on at -- at this Plenum meeting.

It's also, I think, significant and I should point out to the Court that Wilmot testified that petitioner knew where he was going just as Wilmot who, of course, was party member himself.

Both Wilmot and Knight were party -- had been party members at -- were at the time in question.

Now, it has also been indicated, petitioner refused to -- though warned refused to take the stand and testify at the original deportation hearing.

He did also only after the Board and Immigration Appeals had decided that he was deportable and he then applied for -- for suspension of deportation and on that suspension, he testified.

Now, as the Court knows from previous cases, suspension of deportation of a man who was been ordered deported for membership in the Communist Party requires an affirmative recommendation by the Attorney General to converse and then an affirmative concurrent resolution by both houses of Congress before suspension of deportation can be allowed.

And the statute also requires that to be eligible for suspension, you have to show that for 10 years after the status or Act which made you deportable occurred, you have been a person of good moral character and so forth.

Now, this has been interpreted by the Department of Justice and by the Congress to require in cases of suspension for subversive activity cases that the alien show that for 10 years he has made a break from the Communist Party that he has not been connected with it that he has been free of it that he is antagonistic to it, that he is not part of it.

And it was in connection with that that petitioner testified.

And he's -- he denied that he had ever been a member of the Communist Party.

He denied that he -- that he had known or seen Wilmot at all.

His testimony as to Knight was that yes, he knew him.

He knew him but he couldn't -- he didn't know whether Knight was a party official or a party member.

He couldn't tell.

Petitioner's testimony with respect to his -- his views on communism appear really twice in the record one in the -- in the immigration file at pages 45 to 48, and the other in the -- in the judicial trial before Judge Solomon, on 56, and 61, and 62.

What they amount to is a denial -- a complete denial of membership in the Communist Party, except that he said he never knowingly attended party meetings.

He apparently indicated that he had attended lots of meetings during this period of time and he -- his -- his statement was that he hadn't knowingly attended Communist Party meetings.

He refused when requested to state his views of what communism was today.

He said well he couldn't go into that, he didn't -- he didn't really know what was all about and it was on the basis of his -- of his statements as to -- as to the Communist Party in his views that he was denied suspension of deportation.

Because as I've indicated, the principal has been that you aren't granted suspension of deportation unless you have indicated affirmatively that you have made a break from the Communist Party.

And the conclusion of the administrative officials was that he had not at all shown that he made a break from the Communist Party that he had not indicated any -- shall I say dissatisfaction with the Communist Party though he had denied that he was ever a member.

And as I've pointed out, the District Judge, Judge Solomon, who was corporal part, may I note was the local counsel for De Jonge in the case of De Jonge against Oregon, Judge Solomon said although he indicated his -- his dissatisfaction with the law as -- as -- as a proper law, he said that he had to enforce it.

And he felt that in this case he was properly enforced against this petitioner that -- and he disbelieved the petitioner's denial of Communist Party membership and he said my credit with -- what the Government's witnesses said.

Now, you have then a testimony of live witnesses, cross-examined witnesses, credited by the administrative officials and by the District Court accepted by the Court of Appeals twice.

On the other hand, you have the petitioner's testimony character -- discredited by the administrative officials characterized as vague, evasive, unresponsive, discredited by the trial judge who did hearing.

And in those circumstances, we feel, that as the Court has indicated in the past this is not its providence to reassess or reweigh the evidence.

It will accept the views of the -- of the courts below and the administrative officials.

Now, was the membership which I have been describing, the type of membership which is covered by the deportation provisions of the 1952 statute?

We think clearly that it was -- that it was the kind of meaningful political membership with which the Court was dealing in Galvan, in Harisiades, and in Rowoldt.

He was cart (Inaudible), he was dues paying.

He attended many close meetings.

He was a top fraction, a person who attended this Northwest Plenum in Aberdeen, Washington.

He was very active and I think I fairly state that they both testified that though they couldn't recall any theoretical discussions with him on the principles of Marxist-Leninist -- Marxism-Leninism, he was very active in discussion of party activities in the Portland area.

Both Knight testified that and Wilmot testified that he was active in discussion with the party activities in that area.

He was a member of the Executive Board of his party branch.

Both Knight and Wilmot testified though they testified they had never heard him advocate the overthrow of the Government by force and violence, they did testify that the -- they -- that all the activities of the party which they knew about it and which he was connected with were leading to an eventual revolt, and Wilmot testified that petitioner as Wilmot knew where he was going.

The Court has indicated that it is permissible for administrative officials to draw inferences from silence and inferences for failures to explain.

If you put that together with the testimony, credited testimony of these witnesses and the type of activity which has been shown that this petitioner engaged in, we think he falls clearly within the -- the rules laid down.

He was not a minor.

There are certain exceptions which have been read by statute and initial decision into the concept of the term membership.

He was not a minor.

He was not a communist by operation of law which of course could not occur in the United States and unlike Rowoldt, there is no indication that he was communist to obtain the necessities of life.

Rowoldt was a man who was deported solely on the basis of his own testimony which that majority of the Court thought was not clear enough to indicate that he had any political connection with the Communist Party, that he wasn't a member of the Communist Party as he said to -- for -- for bread and food, this is a different type of man.

Justice Felix Frankfurter: Believing this fellow, according to his own testimony, he worked only intermittently during the period from 29 hours and 30 hours, is that right?

Mr. Oscar H. Davis: Well he worked intermittently but he was unemployed the part of that time and part of the time he was employed, yes.

But there is no indication that he joined the Communist Party in the sense that it was the way, that he was going to get food for himself.

He joined the Communist Party because he thought the Communist Party was going to lead to a type of society that -- that -- he -- he wanted and in that broader sense.

He -- he was --

Justice Hugo L. Black: Where is the evidence on that?

Mr. Oscar H. Davis: There is no evidence.

I mean he -- it's said there is evidence that he was interested in -- in the -- that the Government's witnesses were asked, and said, “Yes, he was interested in the activities of the parties so as to obtain more relief and food and so on for the people at that time” and that he was active in those things and it's on basis of that that I infer that that he was interested in those activities, there is testimony to that effect.

Chief Justice Earl Warren: In testimonial Wilmot and the other fellow, is there anything to indicate what kind of party activities the petitioner was engaged in?

Mr. Oscar H. Davis: No.

There was with relation to the newspaper that is he was trying to sell the newspaper which -- which was a C.I.O. newspaper with Wilmot the editor said was being run by a Communist Party unit that the organization of the newspaper in that particular area in Portland was a Communist Party unit.

Aside from the generalities that I've indicated, I don't think there was any indication of the particular kind of activities that he was -- that petitioner was engage in.

Justice Hugo L. Black: What was that about tying to sell the newspaper?

Mr. Oscar H. Davis: Yes he was -- he -- he would come in and take the newspaper and -- and go out and sell the newspaper.

Justice Tom C. Clark: What he get for them?

Mr. Oscar H. Davis: A very few -- few cents or something but I think, it was not done for money purposes, I think, it was done because he believed the newspaper (Voice Overlap) --

Justice Tom C. Clark: Does the evidence show that?

Mr. Oscar H. Davis: Well, the evidence shows that he didn't get very much from the newspaper.

The evidence does show that -- that the Wilmot testified that he got 2 or 3 cents or some other thing like that.

Unknown Speaker: (Inaudible)

Mr. Oscar H. Davis: Pardon me!

Unknown Speaker: He (Inaudible)

Mr. Oscar H. Davis: Yes.

It would -- I should make clear that this was the C.I.O. newspaper this was before the AFL-CIO in 1936 to 1939.

The C.I.O. newspaper which the editor of the newspaper, Wilmot testified was really a Communist Party organization.

He was a communist and all the people working for it were communists and that they were -- it was uses as a Communist Party organ in that evidence.

Justice Tom C. Clark: Where is that evidence about the selling the paper, would you mind, can you point me to it easily?

If it is too much --

Mr. Oscar H. Davis: Page 9 of the supplementary record, Mr. Justice.

Justice Tom C. Clark: Page 9.

Mr. Oscar H. Davis: Yes.

Justice Tom C. Clark: Thank you.

Justice Felix Frankfurter: Am I right --

Mr. Oscar H. Davis: Nine and 10.

Justice Felix Frankfurter: Am I right in getting the impression, I have notice that someone that would reveal at this that in his testimony before the Board, before the examiner, he rather indicated that a lack of interest in political matters?

Mr. Oscar H. Davis: That was he said but of course he want --

Justice Felix Frankfurter: But I mean (Inaudible)

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: I'm talking about his test.

Mr. Oscar H. Davis: Yes.

His testimony was that he was interested in political matters, yes.

I should also say, Mr. Justice Frankfurter, that there's a great deal of more testimony by him on other aspects of the suspension application.

What has been reprinted here is only the testimony relating to what questions asked about the Communist Party.

Justice Felix Frankfurter: I been meaning -- I been meaning (Inaudible)

Mr. Oscar H. Davis: No.

Yes of course.

Chief Justice Earl Warren: Where is the testimony that or is there a testimony by Wilmot and the other witness to the effect that he was interested in political matters?

Mr. Oscar H. Davis: There is no specific testimony if he using the word political but the testimony is that he was interested in the activities of the party in that area and this was of course the Communist Party.

It was not a front organization.

It was the Communist Party as such in which he had a party card.

Justice Tom C. Clark: What activities did they say?

Mr. Oscar H. Davis: They didn't say.

It was just said the activities whatever the party was carrying on in that area and Justice -- other parties carrying on activities and we know judicially that the Communist Party has at least in until very recent, it carried on a number of activities of different types under the rule brick of the Communist Party which were party activities in the same sense that other parties carry on activities which have oblique political consequences so they may immediately have other purposes as well.

Justice Felix Frankfurter: He did acknowledge knowing Knight?

Mr. Oscar H. Davis: Yes.

He said he knew --

Justice Felix Frankfurter: And he acknowledged that he had seen a great deal of Knight (Inaudible)

Mr. Oscar H. Davis: Yes he did.

Justice Felix Frankfurter: Something like on it 50 times.

Mr. Oscar H. Davis: That's right.

Yes he did.

Justice Felix Frankfurter: But he flatly denied that he ever laid eyes on Wilmot.

Mr. Oscar H. Davis: That's right.

I should [Attempt to Laughter] it maybe proper for me to say that point that Judge Solomon's interpretation was that Knight -- that Knight tried to be as easy on -- on petitioner is possible and own it's our cross examination that the most damaging testimony against petitioner was brought as far as Knight is concerned.

Now, I think --

Chief Justice Earl Warren: The Judge said he believed Knight?

Mr. Oscar H. Davis: Yes.

He said that page 70, he didn't -- I should make it clear that he -- Knight did not testify before Judge Solomon but Judge Solomon said, that he had read and reread the testimony, the administrative testimony, there's one part of the record where he says, “I stayed up to 1 o'clock this morning rereading the entire transcript,” in this case.

Justice Felix Frankfurter: Rereading, meaning he read that the -- (Voice Overlap)

Mr. Oscar H. Davis: At the earlier time, yes.

And --

Justice Felix Frankfurter: Read this -- this making (Inaudible) and on the basis of that he believe Knight and Wilmot to disbelieve?

Mr. Oscar H. Davis: Yes.

He said I believe the testimony above Wilmot, this is on page 78, Mr. Chief Justice, and I believe the testimony of Knight and I do not believe Mr. Mackie's testimony, I believe that he purges himself before and I believe that he purges himself today because I think the evidence is clear that he was a member of the Communist Party during the period in which it was said that he was a member.

Chief Justice Earl Warren: Wasn't there -- wasn't there something at some place along the line where admittedly Knight lied?

Mr. Oscar H. Davis: Yes.

That would --

Chief Justice Earl Warren: That what -- what was that about?

Mr. Oscar H. Davis: Well, Knight was asked whether he ever committed felony and he first denied it.

It then turned out that he had been convicted in California for forgery which probably was a felony.

He then explained --

Chief Justice Earl Warren: Well, of course it is felony.

Mr. Oscar H. Davis: Yes.

Well, he then explained that it was a $25 check many, many years ago and that he had not thought that it was felony because it's so small in amount and that he had not wanted to admit it was a felony because the effect on his children.

But it -- that of course was brought out in the -- in the hearing and taken account of both by the special inquiry officer Board Immigration Appeals and of course, it was before the courts below.

It's not a new factor that is come into the case.

It was there all along.

Justice Tom C. Clark: The main issue here, is it not, not whether he's a communist but whether he's the kind of economist that could -- the liable under the rule of doctrine.

Mr. Oscar H. Davis: Yes.

That's right.

And I shall try to explain in a minute or two left, further reasons and after lunch, why we think Congress clearly wanted this kind of person to be -- to be deported.

Justice Felix Frankfurter: Would you -- would you agree that whether he is the kind of a communist under Rowoldt, if I may be short at it, that it is a question of law for the Court?

Mr. Oscar H. Davis: Oh, yes.

Oh, yes.

Justice Felix Frankfurter: No question about that.

Mr. Oscar H. Davis: No question about that, but I think that the Court has to accept the facts.

Justice Felix Frankfurter: (Voice Overlap) he said he had law for the District Court first in.

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: All right.

Chief Justice Earl Warren: You accept Rowoldt and distinguish this case from it.

Print this transcript Transcript: 

Argument of Oscar H. Davis

Chief Justice Earl Warren: Mr. Davis you may continue.

Mr. Oscar H. Davis: Mr. Chief Justice may it please the Court.

In deciding whether petitioner is the type of party member who was deportable under the 1952 provisions of the Immigration Act, I think we and the Court have to bear in mind that this was not a new statute.

That it was a combination of the statutes which had began in 1917 and that was a long history of -- of judicial and administrative interpretation of that statute and that this Court itself has passed upon that issue in various cases.

Going to this Court's decision in the Harisiades case, that case involved three different people, Harisiades, a Mrs. Coleman and the Mr. Mascitti.

The record of relationship to Mrs. Coleman which is summarized by Justice Jackson in his opinion for the Court and which is of course more fully set forth in the -- in the record before the Court indicates that she was a rank and file member with far less if you want to call it activity than the petitioner in this case.

When you get to the Galvan case, he had no more activity, no more what you might call awareness of the theoretical underpinnings of the Communist Party than the Petitioner in this case.

The fact is, that the statute and its predecessors have not been interpreted judicially and certainly not by Congress nor administratively from 1917 on to require any knowledge of what you might call Communist Party theory, Marxism-Leninism.

This deportation statute of course is what I'm talking about.

Rather, Congress has been -- has been trying to deport people who were party members in the ordinary sense who were active in the party and the day to day work of the party who were the doers of the party as were whether they were Theoreticians or not.

Galvan was not a Theoretician, Mrs. Coleman and Mascitti in the Harisiades cases were not the theoreticians.

Mrs. Coleman didn't purported not even to know who Joseph Stalin was.

“He is a Russian”, she said.

“Is he a Russian?”

And the answered to the question, “Do you who Joseph Stalin is?”

The important thing as far as Congress has been concerned, as far as this Court is concerned, why is that person, a member of the Communist Party, as distinguished from some other organization.

And was he or she a member of the Communist Party in the ordinary sense in which somebody is a member of the party, knowing that it is a party and that of course, we believe is what -- what petitioner did here.

Justice John M. Harlan: How many people have been deported under this statute overall, do you know?

Mr. Oscar H. Davis: It's hard for me to know all the figures Mr. Justice Harlan, but between 1920 and 1950 there were 200 we know that.

I've only gotten the figures for the last three years for the years 1955 to 1959, the fiscal years, 42 were deported.

They are now pending 246 cases administratively and 16 are in the courts, so that 42 were actually deported.

The Court had in the Nestor case at the last session case of a man who was actually deported, There were 42 actually deported in the years 1955 to 1959.

There are now pending 246 administrative cases and 16 cases in the courts.

Justice Tom C. Clark: You mean a Communist Party membership deprive to determine the extra stay, is that what you're talking about?

Mr. Oscar H. Davis: Prior to the time this Act, yes.

Yes, that's what I'm -- I'm talking about.

Justice Tom C. Clark: That's what the figures you will give.

Mr. Oscar H. Davis: No, to figure -- the 200 figures were not that.

The 200 figures include both the 200 from 1920 to 1950 include both present members and past members.

That those figures --

Justice Tom C. Clark: How are they divided?

Mr. Oscar H. Davis: I don't know that Mr. Justice Brennan.

Justice Tom C. Clark: What was the Thirteenth?

Mr. Oscar H. Davis: Pardon me?

Justice Tom C. Clark: What are your figure --

Mr. Oscar H. Davis: 42 or -- have -- were actually deported in the fiscal years 1955 to 1959.

Justice Felix Frankfurter: You mean they were the 200 figure contends those who now were found to the communists at the time of the determinations were found to be members as against those who would comply to have had it.

Mr. Oscar H. Davis: Not exactly Mr. Justice Frankfurter.

Justice Felix Frankfurter: Then (Inaudible)

Mr. Oscar H. Davis: Yes.

As you know that until Kessler against Strecker was decided in 1939, the service believed that the statute applied to past people --

Justice Felix Frankfurter: Yes.

Mr. Oscar H. Davis: -- past time as party membership.

The 200 includes both those who were determined to have been members in the past and those who were determined to be members at the time the deportation proceeding was instituted.

That 200 from 1920 to 1950 includes both categories but the later category that I gave afterwards includes only members who were in the past.

Justice Felix Frankfurter: That's what I meant to ask.

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: So how many were --

Justice Felix Frankfurter: -- only include those at the time of the deportation decision were found to be members, correct?

Mr. Oscar H. Davis: Which figure are you giving Mr. Justice?

Justice Felix Frankfurter: The 240 includes both --

Mr. Oscar H. Davis: 200 -- 200 includes both.

Justice Felix Frankfurter: Includes both those who at the time of the deportation determination were found to be members.

Mr. Oscar H. Davis: And also --

Justice Felix Frankfurter: And whereas --

Mr. Oscar H. Davis: That's right.

Justice Felix Frankfurter: -- those who have some previous one the --

Mr. Oscar H. Davis: Yes, and I have no breakdown on it.

Justice Felix Frankfurter: All right.

Justice Tom C. Clark: What (Inaudible)?

Mr. Oscar H. Davis: The 42 are people who have been actually deported in the four past fiscal years, 1955 to 1959 for past membership in the Communist Party.

That is precisely the same as this petitioner.

Justice Tom C. Clark: Have there been pending --

Mr. Oscar H. Davis: Pardon me?

Justice Tom C. Clark: There are cases pending (Inaudible)

Mr. Oscar H. Davis: 246 are pending administratively.

And 16 are in various courts.

Justice Felix Frankfurter: I take it, we don't have to determine.

We don't have to determine whether those deportations enhance the security (Inaudible)

Mr. Oscar H. Davis: No.

If -- if I would have a chance to reargue the constitutional question I would of course say that that is the function as this Court has said of Congress and not of the Court.

But the Court as I said in the Harisiades and the Galvan case as well as the lower courts have indicated that the type the -- the membership of this -- the type of membership which this petitioner had was sufficient for -- for purposes of the act and the lower courts have construed the statute both before the Rowoldt case an after the Rowoldt case.

In our brief, we refer to several decisions of the Court of Appeals after the Rowoldt decision.

And if the Court will read the opinions of those cases they will see that the type of that activity which those aliens engaged in was no different in substance or in some cases it was little more -- there was some case that was greater in point and some cases are less in point than they -- than this -- this petitioner here.

Chief Justice Earl Warren: What distinction do you make Mr. Davis between the Galvan case and the Rowoldt case on the facts?

Mr. Oscar H. Davis: The distinction I made Mr. Chief Justice is that in the Rowoldt case where the Court had only Rowoldt's own statements before them and nothing else; that it was not satisfied that Rowoldt joined the Communist Party has a party, as a political party.

It wasn't satisfied that he hasn't joined it -- that he didn't join it solely for -- for -- to gain his own livelihood, as if he were a -- a method of obtaining a necessities of life.

Now, that was not true of Galvan and it is not true of this petitioner here.

This petitioner was an active party member.

He was a -- a member of the executive board of his branch -- of the executive board of his branch, he went to this Plenum in -- in Aberdeen, Washington and on page 12 of the supplemental record, the witness Wilmot testifies went on at the Plenum in summary.

And what went on was a discussion of the activities of the Communist Party particularly he say -- he said, “In relation to promoting the party in the lumber industry.”

In other words, they were carrying on the activities which the Communist Party was carrying on as a party in that region at that time.

To us it makes no difference whether petitioner here was a theoretician or understood Marxism-Leninism.

Congress wanted to get those who were the supporters, the doers, the -- the active helpers as well as those who were might call the party theoreticians.

In fact, when Congress passed the statute in 1940, which overruled Kessler against Strecker it didn't overrule, it changed the law which had been laid down in Kessler against Strecker.

As the Court will remember Kessler and Strecker, the court held that until they said, Mr. Justice Roberts for the Court said, ‘Unless we are given a more specific indication by Congress, we will not hold that a man who has been a member of the Communist Party no matter how far in the past or for how shorter time will be portable under the statute and may held that the statute related only to present the membership in the party.”

In 1940, Congress changed that and the -- and the committee reports are explicit.

They say in obvious reference to the language of the Kessler against Strecker opinion that a person is deportable for no matter how for membership, for no matter how shorter time or how far in the past so long as it was after the date of entry.

No matter how far in the past or how short the time and in the Harisiades case, the Court have reported three aliens one of whom left the party in 1929 and the other two in 1939.

I might say that the leaving of the party in 1939 may have some other significance, we don't know because as the Court pointed out on the Harisiades case, the Communist Party at that time gave instructions after Kessler against Strecker had been decided, that all aliens were to leave the party so they would no longer be subject to deportation.

And there been a large number of cases involving leaving the party in 1939.

I think more cases involved that one year than any year that I'm familiar with and of course, this petitioner left the party according to the record in 1939.

As I've indicated, it makes no difference how shorter time under a congressional mandate the man was a member of the party.

And of course, as the Court has twice held upon the Harisiades and Galvan and I think quite correctly under the history and stretcher statute, it doesn't require any knowledge by the alien of the unlawful or objectives of the Communist Party that advocates the overthrow the Government by force and violence.

Congress has been so insistent upon the deportation of present and past members of the Communist Party that in 1950, it refused to apply the suspension provisions to persons in this category at all.

They were not suspendable at all.

In 1952, in one of the perhaps few alleviating portions of the McCarran-Walter Act suspension was granted to people in this category.

But Congress retained for itself the final say and it required a 10-year period of good conduct before it took a man to even be eligible to deportation.

What I mean by that is this; Congress provided with respect to certain types of deportable aliens.

That if the Attorney General certified that the man was -- should be -- should have his deportation suspended that went into effect unless one House of Congress affirmatively acted contrary to it.

And in some cases, and most to those cases they provided only for a five-year period of good conduct to just doing of the act which require the deportation.

But with regard to the so-called ‘subversive aliens“ including past members of the Communist Party, it required a 10 year period of good conduct and provided that there should be no suspension of deportation unless both Houses of Congress affirmatively vote to suspend the deportation otherwise, the statute says, the Attorney General shall deport the alien.

So, Congress has been strict.

It has been very severe and it has reserved to itself the alleviating, the merciful power.

Justice Felix Frankfurter: Have you -- have you any figures as to the rejections by Congress as to suspension by the Attorney General?

Mr. Oscar H. Davis: No, Mr. Justice, but I can get them if -- if --

Justice Felix Frankfurter: Well, I was just curious.

Mr. Oscar H. Davis: No, I don't have those.

Of course, as was pointed out, the question of suspension is not here --

Justice Felix Frankfurter: I understand --

Mr. Oscar H. Davis: -- because it was not raised in its present litigation.

Justice Felix Frankfurter: -- just general interest for the problem.

Chief Justice Earl Warren: You know whether or not there have been any, I -- I have no knowledge on this thing.

Mr. Oscar H. Davis: I think there have been some but I -- I really cannot say whether they've been many or not.

Justice Felix Frankfurter: Yes.

But isn't too difficult, just as a matter of interest.

Mr. Oscar H. Davis: Yes, I --I will try it again.

Now --

Justice Felix Frankfurter: Don't take too much time it isn't worth it for me at least.

Mr. Oscar H. Davis: Petitioner lacks his own to a suggestion inaccurately stated I think by petitioner's counsel which the Government made in a totally different area in the Smith Act criminal prosecutions relating to criminal prosecution for knowing membership in the Communist Party.

That of course is a totally different statute subject to different constitutional restrictions with the totally different background.

I would not think that -- that in the light this -- the history of this statute going back as I say, at least till 1920, well documented is the Court has indicated on the Harisiades and in the Galvan cases that there would be any possibility of carrying over into this statute which after all is about the latest modification of a whole series, a position applicable to a new statute never before judicially or not as far as the Membership Clause is concerned, never before judicially construed by this Court and resting on an entirely different constitutional basis.

In any case, I would say that I venture the judgment that the standard which the Government gave in the Scale case would be met by this petitioner who was active, who was active in the party discussions and I won't repeat the all the things that I've said, he was an active party member, he was not a merely normal member.

He was not an unconscious or an artificial or accidental party member.

If I might take --

Chief Justice Earl Warren: Only thing there Mr. Davis that bothers me is that as I understood you in this case there -- there is nothing to indicate what kind of party activities it was he was engaged in?

Now, they did have some -- some economic activities to -- to secure employment and so forth and would you make any distinction if he had been able to establish that those were the only party activities that -- that he knew about or participated in?

Mr. Oscar H. Davis: If he were a regular member who attended close meetings every week as this man did, and who participated in general discussions of the Communist Party program in the city of Portland, I would not make a distinction that the only -- the only particular activities that he personally participated in might be only of -- of some kind of economic program.

On the other hand, if that was all that he did, if he was not a regular member, this man was a regular, weekly attending meeting perhaps even more than weekly, we don't know that because the record isn't explicit, but we do know that he attended party meetings weekly.

We do know that he -- he did go to this meeting in Aberdeen and that I -- I would like to qualify the answer I gave to you before lunch, Mr. Chief Justice, to refer to the statement of what went on at the Plenum in Aberdeen because there it does indicate more explicitly what kind of activities they carried on and one of them was relations promoting the party in the lumbering industry.

Now, we know that what the Communist Party did then and what probably is doing now is an effort to infiltrate into various activities, economic, industrial activities in order to promote its program.

And as the witness said here, this being a lumbering state, most of our activities were directed at that industry in that meeting and though record isn't explicit as to -- to what this man did with respect to that, he was participating in this meeting which was just set before the program and we think that's sufficient.

Chief Justice Earl Warren: Well, bearing on that same -- same thing Mr. Davis, I understood you to say there were -- there were -- you recognized two kinds of membership.

One that doesn't carve against the man particularly because probably isn't -- it isn't a knowing membership in all of the activities, and the other is where he is really a member of the party.

Now, in this case as I understand it, there are no definite, there is no definite evidence against him that he -- he participated in -- in what were subversive activities and what he did was not defined and on the question of his membership, it apparently wasn't such a very important membership because he was paying dues at the rate of 25 cents a week.

That was the criteria for his being in the organization and when he failed to pay his 24 cents a week, they dropped him for non-payment of dues.

Now, would that have any bearing on whether he was of one of the other types of membership?

Mr. Oscar H. Davis: No, Mr. Chief Justice.

The membership this man had in the party was no different perhaps stronger than that of the Galvan case.

There was no showing that Galvan have participated in subversive activities.

There was no showing that Mrs. Coleman or Michitti in the -- of two or three in the Harisiades case participated in subversive activities.

Chief Justice Earl Warren: If I remember correctly in Galvan, Galvan was the Chairman of the educational committee of the party.

Mr. Oscar H. Davis: Of --of a particular little unit.

And this -- this man is a -- was a member of the Executive Board of the same type of unit and more than that, he was a top fraction member who attended the -- this Plenum that I've been describing.

But there was -- there this, in most of these cases --

Chief Justice Earl Warren: Now, is there -- is there testimony in here that he -- he is positively or was positively a top fraction member?

Mr. Oscar H. Davis: Yes.

Chief Justice Earl Warren: Where -- where do we find that?

Mr. Oscar H. Davis: 11 and 16 of the supplemental record.

Chief Justice Earl Warren: Supplemental.

Mr. Oscar H. Davis: The word -- the word top fraction is actually used on page 16.

Chief Justice Earl Warren: 16?

Mr. Oscar H. Davis: 16.

Chief Justice Earl Warren: Let's see.

Who -- what witness is that?

Mr. Oscar H. Davis: This is Wilmot.

Chief Justice Earl Warren: Wilmot and what did he say?

Justice Potter Stewart: Page 13, the word top fraction is used.

Mr. Oscar H. Davis: Yes, you are right Mr. Justice.

Chief Justice Earl Warren: Where -- where did --

Mr. Oscar H. Davis: First is on 13.

This is still the witness Wilmot about the middle of the page and we're still talking about this --

Justice Felix Frankfurter: At the middle of the page?

Mr. Oscar H. Davis: May I make the point clear if you want to know that these are the anointed people, when I show up there, Mr. Mackie, they knew who we were.

Then is it your contention of Mr. Mackie wasn't an ordinary communist, but that he was one the big wheels, is that correct?

He belonged to what we called “the top fraction”.

Question, “He is one of the top fraction in the Communist Party?

Answer, “With the exception of what related to the waterfront activity” and it's repeated on page 16.

Justice Hugo L. Black: Any evidence here as to what this part of the top fraction, if he ever made a speech?

Mr. Oscar H. Davis: No, there's no evidence that he made a speech.

Justice Hugo L. Black: Did the evidence -- did he ever discuss any terms?

Mr. Oscar H. Davis: Yes.

There is evidence that he discussed, there is.

Justice Hugo L. Black: Where is it –

Mr. Oscar H. Davis: what?

Justice Hugo L. Black: What did he particularly discuss?

Mr. Oscar H. Davis: Oh! Except for the -- except for the discussion with relation to Aberdeen that is at the Plenum which is on page 12 there is no specific reference to what he discussed except to test party activities in that area.

Justice Hugo L. Black: Now, would you -- is there any place in here whether you defined what this Plenum is?

I understood what you said.

Mr. Oscar H. Davis: Yes.

It -- it --

Justice Hugo L. Black: Where is it defined?

I want to see it.[Laugh]

I'm curious about it like some of the other justices.

Mr. Oscar H. Davis: On page 8 in the middle.

Did you ever -- did you ever attend any meetings communist party outside the city of Portland which Mr. Mackie attended.

He attended one in Aberdeen.

What kind of a meeting was this?

It was they called the Plenum.

It was merely the port work that was carried on, plenum are fullness literally, it was the port work that was carried on by people in the northwest and then, there is further discussion on pages 12 and 13 of what this plenum and 14 of what this plenum was about and who attended it.

Justice Felix Frankfurter: Mr. Davis, before you go on, I shouldn't interrupt you, you traced a little while ago the history of the legislation from the beginning at page -- to the interest of labor and (Inaudible) myself in words, did I find that history in In or where would -- is there any confirmation that is the whole --

Mr. Oscar H. Davis: Well, it --

Justice Felix Frankfurter: (Inaudible)

Mr. Oscar H. Davis: Well, but --

Justice Felix Frankfurter: -- the answer probably is no.

Mr. Oscar H. Davis: Well, I think it not.

I would say that it is in the Government's briefs in -- in the Harisiades and Galvan, and Rowoldt cases.

On the reargument in Rowoldt, we reprinted a compilation of our briefs in Harisiades and Galvan.

So, I think that from our point of view, an appropriate history is in this -- in our supplemental brief for the respondent on reargument in the Rowoldt case.

Justice Felix Frankfurter: Thank you very much.

Mr. Oscar H. Davis: And it's also contained in -- in large part in -- in that opinion of Mr. Justice Jackson in Harisiades and in your opinion to the Court in the Galvan case.

Justice Felix Frankfurter: And they rely on that?

Mr. Oscar H. Davis: Yes, yes.

I think -- I think that it's both accurate and authority.

On the -- on the issue of -- of constitutionality the Court of course, knows that the issue has been here with respect to this statute twice before, once in Harisiades case which involve the statute which different in only one particular.

It was precisely the same as this except that the statute there did not refer names of the Communist Party but only to the -- to an organization advocating to overthrow the Government and that proof had been introduced on that subject, and it was not contested but in all other respects, the past membership, the type of membership and so forth, the -- the case was precisely the same.

In the Carlson case Carlson against Landon, decided the same day on March 1952 as the Harisiades case, the Court upheld the statute, this statute, the one naming the Communist Party with relation to present membership in the Communist Party.

That case involved present membership and the Court upheld the statute with relation to present membership in the Communist Party.

In -- in the Galvan case, in 1954, the Court upheld this statute with relation to past membership in the Communist Party.

In the Rowoldt case, the majority of the Court do not reach it, the dissenters reaffirmed the validity of the statute as there applied.

In the Bonetti case, though case went off on a -- on a non-constitutional on a statutory ground, there is a statement in the opinion of the Court by Mr. Justice Whittaker that if Bonetti had been a member of the party after entry, he would have been deportable under Galvan against Press decision.

Five petitions have been filed since the Rowoldt, five petitions for certiorari have been filed in this Court, raising a constitutional issue since Rowoldt and they have all been denied and that does include the present case.

It does include the prior petition on behalf Niukkanen.

Justice Felix Frankfurter: I suppose the temptation was too strong for you not to refer to those five denials.

I thought -- I suppose the temptation is too strong not to refer?

Mr. Oscar H. Davis: Well --

Justice Felix Frankfurter: Not at the certiorari even though there were five of them.

Mr. Oscar H. Davis: Perhaps --

Justice Felix Frankfurter: It goes on to study your facts.

Mr. Oscar H. Davis: Yes.

The only issue that I really have time to discuss again, I think, the only one that perhaps needs in this discussion is the issue of bill of attainder.

I think, it is important to point out to the Court, two cases in which it was claimed that a Congressional Deportation Act was a bill of attainder or free cases.

The first one was the Chinese -- the first Chinese Exclusion case which was upheld in 130 U.S. in the Chinese Exclusion case, Chae Chan Pan.

The briefs in that case indicate that a strong argument was made that that statute was a bill of attainder.

In the Fong Yue Ting case, which involved none exclusion of Chinese but deportation, the brief both of the eminent lawyers Joseph. H. Choate and Maxwell Evarts and Mr. Hubley Ashton both raised the issue of bill of attainder which was rejected by the Court on the ground which it has followed ever since -- ever since the deportation is not punishment and -- and therefore, the bill of attainder does not apply.

It was raised in the --

Justice Hugo L. Black: If it were punishment, would it be a bill of attainder?

Mr. Oscar H. Davis: If it were punishment, I think not.

Because, I think a bill of -- of attainder relates to punishment for past conduct by Congress and I think that this is not punishment for past conduct, but a decision by Congress that this type of person is not someone whom the country wants to -- to maintain.

Justice Hugo L. Black: Well, then it wouldn't be punishment --

Mr. Oscar H. Davis: Well --

Justice Hugo L. Black: -- you argue.

I ask you, does an alien of this kind have a right to invoke any of the constitutional provision than if they had?

Mr. Oscar H. Davis: Well, I think that as far as -- as sending him out of the country is concerned classes which Congress can determine for sending out that he does not have the right to invoke as is has been authoritavely determined the Due Process Clause, the Bill of Attainder Clause, the ex post facto clause.

Justice Hugo L. Black: Outside of that, is an alien barred from claiming the benefits of the Due Process Clause?

Mr. Oscar H. Davis: No.

An alien in the country is not barred with respect to the procedure in determining his deportability or in respect to his life while he still remains here.

Justice Hugo L. Black: I suppose Congress could not -- under that pass of law which would take away the man's (Inaudible) without a trial even though he's an alien.

Mr. Oscar H. Davis: Yes.

That is been held in the Wong Wing case one of the early Chinese cases where they --

Justice Hugo L. Black: (Inaudible) liberty?

Mr. Oscar H. Davis: Pardon me?

Justice Hugo L. Black: How could they --

Mr. Oscar H. Davis: -- that they could not -- they could not -- that is --

Justice Hugo L. Black: Yes.

That's right.

Mr. Oscar H. Davis: You said they could not and I said --

Justice Hugo L. Black: Yes.

Mr. Oscar H. Davis: -- it's been held in Wong Wing.

Where --

Justice Hugo L. Black: Suppose the Government would provide that suits for civil damages against aliens that could not be tried by jury, could they do that?

Mr. Oscar H. Davis: No.

I don't think they do -- could.

But --

Justice Hugo L. Black: (Inaudible) the jury trial.

Mr. Oscar H. Davis: That's right.

But the Court has consistently maintained for 70 years that with respect to the -- to consistently, on many occasions with the respect to the classification of what type of alien shall be sent out of the country and deported that is the matter for Congress.

It's been replied to people on racial ground, Chinese.

It is been applied to people in offensive other that through sickness people who could --

Justice Hugo L. Black: I think it's -- I'm -- I'm not -- I think that is correct, but that's why you have to get to -- to -- is that they have a right to send an alien off with or without a trial and with or without any proceedings if Congress decides to do so.

Mr. Oscar H. Davis: No.

Mr. Justice, this Court does not said that they can do it without any procedures, or that they -- all that I'm talking about here is about what's involved (Voice Overlap) --

Justice Hugo L. Black: So, what about the (Voice Overlap) --

Mr. Oscar H. Davis: It --

Justice Hugo L. Black: What about (Inaudible)

Mr. Oscar H. Davis: That was a -- a special kind of case.

Justice Hugo L. Black: What's said now?

Mr. Oscar H. Davis: Yes.

But in certain cases they could do.

They -- they hadn't said that all aliens can be deported without any procedure.

I'm talking only about the one issue, which is the only issue here there was nor procedural issue here.

No --

Justice Hugo L. Black: When they raised on it but the bill of attainder.

Mr. Oscar H. Davis: No.

But there's no issue as to the procedure in the -- in the deportation process.

No constitutional issue about the procedure and -- in the deportation process.

Justice Hugo L. Black: And just the bill of attainder is perhaps, it designed as much to protect people in the right, procedural rights of any other part of the country.

Mr. Oscar H. Davis: Well, yes, yes.

Excepting that Mr. Justice, I -- I meant yet that there is no claim that -- the trial here, the hearing here was on favor.

They do raised the issue of bill of attainder.

I think, it is been rejected by the Court at the beginning of the great series of cases on deportation legislation.

It was reject to -- I think with relation to this particular statute in the Galvan case where it was argued and -- and briefed.

And we think that the whole course of history goes against it, because the Court has consistently said, until the -- this very day that deportation is not punishment and the bill of attainder requires much more.

Chief Justice Earl Warren: Mr. Forer.

Argument of Joseph Forer

Mr. Joseph Forer: If the Court please, I think, Mr. Davis's version of the facts suffers from giving an unwarranted and wholly sinister interpretation to little pieces of irrelevant evidence that do not -- are not justified in bearing such an interpretation, if I may give one or two illustrations.

Mr. Davis mentioned as a great significance the fact that Wilmot testified that -- that this alien, the petitioner knew where he was going.

Now, if you look at page 15 of the supplemental record, you'll see the testimony on that and this is on cross examination of Wilmot and the lawyer asked me, “You say, you knew where you were going, do you think either Mackie, that's the petitioner, knew where he was going?”

Answer, “I think, Mr. Mackie knew where he was going.”

Question, “You just assumed that because you know he was a member of the Communist Party, is that right?”

Answer, “He would have been permitted in the meetings.”

It's perfectly clear that by Wilmot test anybody who went to Communist Party meeting knew where he was going.

Justice Felix Frankfurter: Not when it was permitted to be present which is different.

Mr. Joseph Forer: Or was permitted to be present --

Justice Felix Frankfurter: Well, that's a --

Mr. Joseph Forer: -- as a member --

Justice Felix Frankfurter: -- can you go.

Mr. Joseph Forer: What?

Justice Felix Frankfurter: I -- I sometimes had been -- as a kid, I was present at political meeting --

Mr. Joseph Forer: I'm talking about close meeting.

Wilmot's testimony makes perfectly clear that he thinks that anybody who was a member of the Communist Party ipso facto knows where he is going.

Now, I don't know what he means by that, but whatever significance it has, it has no more significance than factual testimony that the man was present at meetings of the Communist Party.

Now, let's look at where he says about the top fraction?

On page 13, question, “Then it is your contention that Mr. Mackie wasn't an ordinary Communist but that he was one of the big wheels, is that correct?”

Answer, “He belonged to what we call the top fraction.”

But he never says, leaving aside that he doesn't say what he means by the top fraction, he never says on when he faced the opinion that he belonged to the top fraction and the --

Justice Felix Frankfurter: Well, did that cause argument clause?

Mr. Joseph Forer: What?

Justice Felix Frankfurter: Was he asked that question in cross examination?

Mr. Joseph Forer: No.

He wasn't asked that question on cross examination.

He never says what he means by top fraction.

As far as I can tell, but if your read over his testimony, he thinks that anybody who was a member of the Communist Party was a -- an anointed person and very important.

Now, let's go back to page 15 on the question of the paper, and he's asked whether ever had any discussion with Mr. Mackie and the only discussion he remembers, he says, “I remember about the paper and its distribution.”

Question was that, “Do you know where your newspaper office?

Answer, “Yes.”

Question, do you -- question, “Do you remember what was said about what's done in that particular occasion?”

Answer, “Well it had to do largely with circulation.”

That was a perfect place for people to come and sit and I don't attribute any great sinister significance to that.

And I also attribute no particular significance to this plenum and I'm coming to that in a moment which is more than Mackie -- than this witness' testimony that 12 years before, somebody -- it saw this man at a Communist Party meeting.

But if you look at page 8, where he mentions the plenum, he's asked, whether or not he ever attended any Communist Party meeting outside of Portland that Mackie attended?

And he says, “Yes, one in Aberdeen.”

They said, “What kind of meeting was this?”

And this is -- this -- I don't, this -- as it seen to me to be terribly sinister important.

Answer, “It is what they called a plenum.”

It was merely your report of the work that was carried on.

A plenum means of fullness literally, it was the report work that was carried on by people in the northwest.

And then if you look at page 13, where it goes over it again, not 13 – 12, the only thing they could -- they asked in the purpose of meeting and he repeats in a rather colorful account that he says, everybody would get up and give -- give a glowing account of what they had done, there were more or less fabricating he says, and the only person he can remember, is a man by the name (Inaudible) speeches.

There is no evidence that the petitioner made speeches.

The evidence amounts to the fact that he went to party meetings if you accept that evidence.

Now, let's take a look of the man that knew him, that really knew him and was a member of his -- his unit according to his testimony, what he said about him and you have a very different picture than what Knight said, look at page 29.

Question, “Did Mr. Mackie in your presence ever advocate to overthrow of Government by force of violence or the use of the illegal means.”

Answer, “No he never did.”

Question, “Would you say to your knowledge that Mr. Mackie was one of those people who was more particularly interested or concerned with the problems that faced the country during to the depression such as unemployment and relief?”

Answer, “I think very much interested than top of 29.”

Question, “Was he what you would call one of the party intellectuals?”

Answer, “What do you mean by that?”

Question, “Was he very much on theory, political discussion?”

Answer, “No.”

Question, “He is more interested in bread and butter topics at the day, what to do for unemployment relief?”

Answer, “I would say so, yes.”

Question, “Was most of the activities (Inaudible) branch toward these specific problems?”

Answer, “Yes they were,” Now look at the summary on page 30, in which the attorney asked the witness, if this the correct summary of Knight's testimony?

Question, “You saw Mr. Mackie the number of meetings that you claim were close meetings to the Communist Party that he was not functionary of the party, that you yourself thought members the works of the Soviet Union is the educational chairman of that group but that Mr. Mackie did not participate any of the discussions that you held in that connection, that Mr. Mackie did not distribute literature and the Mr. Mackie never served under you -- under your direction in any capacity, and that as near as you know, Mackie never attended any Communist Party conventions, is that correct?”

Answer, “Yes, that's right.”

And then later on, “Is that correct summary of your testimony as far as I went?”

He says, “Yes that's right.”

Now, these are people who were testifying 12 years after the events and you're now always little pieces of unexplored odds and ends and I think the principal reason it wasn't explored was because the Rowoldt case had not been decided and people didn't understand that the nature -- of the activity and the significance of the membership was as important as Rowoldt later made clear.

But the least the Board of Immigration Appeals could have done is before they had hatched to these little grids and drafts, as soon as they're kind of sinister significance that Mr. Davis gives to it, I think, completely unwarrantedly would be to reopen the record so they -- people could try the issue with some knowledge of what the issue was about at the time they took this testimony from Knight, from Wilmot at the time the petitioner testified.

They didn't know what the interpretation is going to be that was given in Rowoldt.

Justice Felix Frankfurter: Well evidently in Rowoldt, they knew what kind of facts to elicit which was the basis for the decision, wasn't it?

Mr. Joseph Forer: I -- I'm afraid, I didn't follow you.

Justice Felix Frankfurter: I say in Rowoldt itself --

Mr. Joseph Forer: No.

Justice Felix Frankfurter: -- which preceded the Rowoldt decision the facts were elicited on the base of which there was a decision.

Mr. Joseph Forer: No.

That is -- that is not the -- that is not quite so, because Mr. Justice Frankfurter, in Rowoldt itself --.

Justice Felix Frankfurter: (Voice Overlap) written that opinion.

Mr. Joseph Forer: No.

I know, Your Honor, in Rowoldt itself, the facts which led you to write that opinion for the Court were not elicited by Rowoldt counsel, they weren't elicited at the deportation hearing.

They were elicited at an interview prior to the hearing which the immigration service at which the immigration service questioned Rowoldt, and all they were tying to get form Rowoldt really was matters on which to deport him, they did not have any understanding that member, the word “member” was limited in the sense that the Rowoldt decision itself limited it and it's really a happenstance that evidence came out in Rowoldt.

Justice Felix Frankfurter: I don't care what their legal interpretation was, that's for this Court and other Courts.

What I'm saying that the facts were in the Rowoldt record and therefore, the argument that they're not in this record it's to me not very impressive.

Mr. Joseph Forer: Except that I say that the burden of proof is --

Justice Felix Frankfurter: Well, that's a different story --

Mr. Joseph Forer: Well --

Justice Felix Frankfurter: -- I understand that.

Mr. Joseph Forer: -- that the story I'm giving here is that the only facts you have in this record if you read them fairly is that you have a -- and disbelief the petitioner that you have rank and file enacted person who went to meeting --

Justice Felix Frankfurter: And where is this argument?

Mr. Joseph Forer: -- paid dues have no political interest other than on the bread and butter matters.

Now, I say that's a fair version of the facts and I say that his version to the contrary is not a fair version of the testimony.

Justice Felix Frankfurter: I understand that argument --

Mr. Joseph Forer: And I say --

Justice Felix Frankfurter: -- but I do not follow the argument that these alleviating or mitigating or minimizing factors couldn't have been brought by counsel because they didn't know what questions to ask.

Mr. Joseph Forer: They could have been brought up but they weren't.

Justice Felix Frankfurter: All right.

Mr. Joseph Forer: And they couldn't have been brought out in this case because the witness testified (Voice Overlap) --

Justice Felix Frankfurter: You said because they didn't have Rowoldt.

Mr. Joseph Forer: No, they -- they couldn't have brought it out --

Justice Felix Frankfurter: -- understand, didn't you?

Mr. Joseph Forer: Yes and let me explain it now.

They couldn't have brought it out from the witness because here the witness denied from the petitioner because here the petitioner denied he was a member.

They -- if they had known Rowoldt they might have done a better job of cross examining the Governments --

Justice Felix Frankfurter: You mean they --

Mr. Joseph Forer: That's all I'm driving at.

Justice Felix Frankfurter: -- you mean that he might then have confessed that he was a Communist, but --

Mr. Joseph Forer: No, I don't mean that all.

I don't meant

Justice Felix Frankfurter: Is that what you mean?

Mr. Joseph Forer: No, I don't mean that at all.

I mean that they -- if they had been aware about Rowoldt, they could oriented their cross examination of the Government witnesses in that direction, I don't see anything particularly startling about that.

Justice Felix Frankfurter: I didn't say it was startling.

I just didn't follow your argument.

Mr. Joseph Forer: Well, I'm -- I'm sorry if I wasn't clear but that's all I meant.

Thank you.