MACKEY v. MENDOZA-MARTINEZ

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Argument of Oscar H. Davis

Chief Justice Earl Warren: Number 29, Mackey, Commissioner of Immigration and Naturalization Service versus Francisco Mendoza-Martinez.

Mr. Davis.

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

This declaratory judgment action is here on direct appeal from the Federal District Court for the Southern District of California.

It comes to this Court on direct appeal under 28 U.S.C., United States Code 1252 which provides for a direct appeal in a civil proceeding involving the Government when a District Court has held invalid a statute of Congress, and the statute of Congress which the District Court here invalidated is Section 401 (j) of the Nationality Act of 1940, providing for loss of nationality by an American who has gone abroad to evade the draft.

Both the issue and the case have been here before.

The case was here at the same time as the expatriation cases which were decided two terms ago and was remanded to the District Court in the light of one of those cases, then decided.

The issue itself was involved as presented by the parties in the Perez case, but was not decided by the Court.

The only issue in this case, as it comes to this Court, is the validity of the statute.

There are no questions of fact involved, as I shall point out, they were stipulated below.

So the only issue is the issue of the validity of the statute.

As I shall also point out a little more in detail later, this particular section of the Nationality Act of 1944, though it was before the Court two terms ago, was not passed upon by the Court and therefore, the issue is now open for the Court to decide.

I should also mention at this point I think that this involves the Nationality Act of 1940 which has since of course been superseded by the Immigration and Nationality Act of 1952 as a comparable provision in -- in the later Act, but it -- it contains somewhat different provisions and so I -- I'd want to say that what we have here is the Section 401 (j) of the Nationality Act of 1940.

The facts were undisputed and were stipulated in the court below.

The appellee was born in the United States in 1922 and of course was an American citizen at birth.

He was also at birth and has at all time since been a citizen of the Republic of Mexico.

It is agreed that in 19 --

Chief Justice Earl Warren: From birth?

Mr. Oscar H. Davis: Pardon me?

Chief Justice Earl Warren: From birth?

Mr. Oscar H. Davis: From birth.

Apparently, because his parents were American nationals, that is not in the record but I assume that's so.

After the Selective Service Act was passed, he registered for it, but before he was called to service, I believe, in 1942, he went to Mexico.

Now, he has stipulated that the sole purpose of his going to Mexico was to evade the draft and he has stipulated that the sole purpose of his remaining in Mexico, which was until November 1, 1946 was to avoid the draft.

Justice Potter Stewart: Does the record show how old he was when he --

Mr. Oscar H. Davis: Since he was born in -- in 1922 and he went to Mexico in 1942, he was 20 at the time.

He remained in Mexico for four years until November 1946, after the close of hostilities in the -- in World War II.

On his -- he then returned to this country.

He was then -- charges were then brought against him for draft evasion in California, he pleaded guilty, was sentenced to a year and a day which I believed he has served.

The Immigration Service then brought deportation proceedings against him on the ground that he had expatriated himself under Section 401 (j) by going to and remaining in Mexico for the purpose of evading the draft and an order of deportation --

Justice Potter Stewart: You say that he had expatriated himself, are you suggesting that this amounted to renunciation by him?

Mr. Oscar H. Davis: Not in the sense that he consciously did renounce.

All I mean by that is he voluntarily went to Mexico for the purpose of -- of evading the draft.

That is a stipulated fact which no one disagrees.

Justice Potter Stewart: It is possible of course to renounce the citizenship.

Mr. Oscar H. Davis: Yes.

Justice Potter Stewart: Is it possible for somebody under 21 to do it?

Mr. Oscar H. Davis: Under the Nationality Act of 1940 it says, you can renounce from the year -- age 18 up.

Justice Potter Stewart: 18 up.

Mr. Oscar H. Davis: I'd like to point out at this moment, Mr. Justice Stewart that I don't think the issue of his age is in the case at all.

First, that it wasn't raised and second, because the Section 401 (j) was only passed in September 1944.

And the -- it was his remaining abroad after that time which constituted his expatriation and by that time he was 21.

So, in this case, in a previous case, there was that issue involved but in this case there is no such issue.

He -- as I was saying, the deportation proceeding was brought against him and an order of deportation was issued.

Apparently, he then left voluntary to return to Mexico under that order of deportation.

Sometime in 1952, he returned to the United States, apparently claiming to be an American citizen and after his return in 1952, another deportation proceeding was brought against him in 1953 and he was again ordered deported and it was ordered -- the order of deportation was upheld by the Board of Immigration Appeals.

It was then that he brought the present declaratory judgment action, to have himself declared an American citizen and of course, if he prevails in that -- in this suit, the deportation order will necessarily be invalidated because he will not be an alien and therefore not subject to deportation.

Two terms ago, the Court handed down two decisions in the Perez and Trop cases.

Before I begin to discuss Section 401 (j), I'd like, if I may, to give a summary of what in our view those two cases decided and what is the present background of the -- of existing law and expatriation as I stand here to argue this case.

The Perez case as the Court remembers involves Section 401 (e) of the 1940 Nationality Act, the foreign voting provision and the opinion of the Court which was very majority of the Court, we think decided the following propositions.

We think, the Court, the majority of the Court decided, that Congress did have the power to denationalize American citizens in appropriate cases.

And it rejected the notion that such denationalization can only follow upon a voluntary renunciation by the citizen himself.

Second, we think the Court decided, in our view and in the Court's view affirming or conforming what had previously been decided in Mackenzie against Hare and in the Savorgnan case decided that in a subjective intent to give up ones nationality was not a prerequisite and therefore, was not required to validate denationalization.

And third, we think the Court decided that the general standard for determining the validity of an expatriation statute of Congress was the rational connection of the denationalization with a granted power of Congress and that case, as decided by the Court, it was the Foreign Affairs power and we think the Court recognized that due deference has to be given to the judgment of Congress at the same time that due deference is paid to the cherished status of American citizenship.

Now, the Court also had before it, the second case, the Trop Case as to which there was no opinion for the majority of the Court.

As we read it, the Section 401 (g) was invalidated by a majority of the members of the Court as improper punishment.

The four justices who joined in the Chief Justice's opinion, we think held that in the circumstances there where Trop, the petitioner in that case did not have a second citizenship, he was not a dual national that the consequence of statelessness which would be vested upon him by the denationalization provision of Congress constituted cruel and unusual punishment.

As we read Justice Brennan's concurring opinion in substance, he -- he was of the view that the punishment of denationalization was too drastic a penalty for the objectives to be gained, sought to be gained by Congress.

Justice Potter Stewart: Didn't -- didn't four justices in Trop expressed the view that Congress was without power to deprive anybody of a citizenship because the way citizenship is defined in the Fourteenth Amendment?

Mr. Oscar H. Davis: We don't read it that way, Mr. Justice Stewart.

Justice Potter Stewart: Perhaps, I better (Inaudible) instead of you but I --

Mr. Oscar H. Davis: I will -- I will explain --

Justice Potter Stewart: But I've done that, I've --

Mr. Oscar H. Davis: Yes.

As we -- we read -- as we see the situation, Mr. Justice Stewart, was this.

Mr. Justice Whittaker who did not join in the decision of the Court in the Perez Case, the voting case, in his memorandum there, said that he did agree with the general principle that was adopted in the Perez Case than in appropriate cases, Congress did have the power to denationalize citizen -- citizens, regardless of his voluntary desire to be denationalized.

As I read the section of the Chief Justice's opinion in the Trop case, he is speaking for himself and the two colleagues who joined him in dissent and in Perez but not Mr. Justice Whittaker who had made his views on the general subject of plans.

So that I think that the law as I stand here today is the -- the Perez case, the decision of the Court in the Perez case and I think the Chief Justice if I may say so recognized in his opinion in the Trop case that that was so because he says the majority of the Court has taken another view and I will attempt to get -- I will give the reasons why in our view that section, Section 401 (g), the desertion section was invalid even under the view of the majority in -- in the Perez.

Justice Potter Stewart: And at that section the opinion that --

Mr. Oscar H. Davis: That I think that I may fairly be said is the one in which Justice Whittaker joined with the other three justices and Justice Brennan had of course his own opinion.

The burden of my argument of course will be to try to show the Court that there are differences between 401 (g), the desertion section which was involved in the Trop case and 401 (j) the draft evasion section which I haven't in the case which is before Your Honors now.

They both have a common source.

It is true that both of these provisions find their common progenitor in the 1865 statute of the Civil War Congress which provided for loss of the rights of citizenship by deserters and those who went beyond the district having enrolled in the draft.

We have always maintained and for the benefit of the members of the Court who were not, Mr. Justice Stewart, who was not a member of the Court at the time of the Perez case, in the appendix to our brief, we have set forth the parts of our briefs in the Perez and Trop cases in which we tried to show that the 1865 statute was a true loss of nationality Statute and not merely a forfeiture of franchise right.

I don't know if that's too decisive, but I thought that -- we have maintained that we think that this is supported by the Congressional treatment of the statute by the administrative treatment and by certain Court decisions.

But the -- the factors in which the 1865 statute is different from the later statute, both the desertion statute which is before the Court in Trop and the draft evasion statute which is before the Court in the present time are these.

Under the 1865 statute, a court-martial conviction was required, that is the statute as interpreted by the Court required a court-martial conviction.

And second, it was not necessary to leave the country in order to have invoked the provisions of the 1865 statute either as to desertion or as to draft evasion.

The provision that's draft evasion in the 1865 statute merely provided for loss of the rights of citizenship if you left the district where you were enrolled, not if you left the country.

And, I shall try to point out to the Court that in our view, the leaving of the country is a very decisive factor and a very different factor from what was the Congress had in the earlier statute.

Well, this 1865 statute continues in effect, in 1912 it was modified to apply -- to apply -- only to peace time desertion.

Of course since there was no draft after the civil war.

There was no effectiveness of the draft evasion provision until World War II and it was considered to be in effect in World War II.

It was repealed in 1940 when Congress passed the General Nationality Act and recodified the whole matter.

As far as I can determine, there is no reference anywhere to why it was repealed.

I think the true answer probably is that the draft evasion at that -- when the Cabinet Committee and the Congressional Committees were considering the problem of loss of nationality for the new code, there was no Draft Act in effect.

It only went in to effect in October 1940 and so, they didn't think it necessary to continue the draft evasion part of the earlier statute.

They did continue the desertion provision in Section 401 (g) which is here in Trop.

But Congress did come along as the Court remembers very quickly in the Spring -- in the Fall of 1940 and passed a new Selective Service Act.

And I think though that Act was in a sense going through Congress simultaneously, it was too new and too quick a change to make anybody think of making a change in the draft evasion provisions.

Well, at any rate they didn't --

Justice Hugo L. Black: The measures of before different committees --

Mr. Oscar H. Davis: They were before different committees actually and so it was not until 1944, that suggestion was made that a provision providing for expatriation for denationalization for going beyond the country to evade the draft was suggested to Congress and enacted.

The Attorney General made the suggestion in 1944 and it was unanimously recommended by the appropriate committees of both houses and passed by both houses with very short debate.

It was made very clear in the legislative history at that time that they were to be in a sense these two differences from the earlier Civil War Statute that is no criminal or court martial conviction was to be required for draft evasion.

Congress thought that there would be many people who would never return to the country and therefore there would be no possibility of having a criminal conviction.

It was made quite clear on the floor of the House and at least that they didn't want these people whom they felt had lost the right to be American citizens to come back to the country.

But they did want them to have the right of Court review and so they provided for a Court review under Section 503 of the Nationality Act which is the general provision of that statute providing for a Court review of a claim of American citizenship in which there is de novo determination of the facts by the District Courts.

Justice Potter Stewart: No right to a jury trial is there?

Mr. Oscar H. Davis: No right to a jury trial, Mr. Justice Stewart.

It's an equity proceeding, preparatory judgment.

We think that there are three --

Justice Felix Frankfurter: That has been traditionally the two of denationalization proceedings, right?

Mr. Oscar H. Davis: Yes, denatural --

Justice Felix Frankfurter: (Inaudible) I'm not talking about --

Mr. Oscar H. Davis: Yes.

It has been traditionally true of denaturalization proceedings and also of -- of all types of proceedings involving issues as to nationality even those prior to the 1940 statute were under the decision of the Court in Yun Fang Ho, it was said that there could be a right to de novo review.

There has never been a jury trial in any of those.

Justice William J. Brennan: Mr. Davis, well, I gather that the fact I gather from this fellow had been convicted was he not of (Inaudible)

Mr. Oscar H. Davis: Yes, sir.

He was the --

Justice William J. Brennan: But that -- that's not significant to your argument, then I gather?

Mr. Oscar H. Davis: It may be significant on some alternative arguments.

It is not significant -- it is not basically significant to my -- my primary arguments.

Justice William J. Brennan: Yes.

Mr. Oscar H. Davis: We think that there are three heads of jurisdiction that Congress had in order to pass this particular provision of the 1940 statute.

I'll state if I may in summary form first.

The relationship to foreign affairs second the inherent right of a nation to declare to denationalize a citizen who puts himself entirely beyond the reach of the authority of the country as this man did by going to beyond the country where our processes could not reach him, even extradition as I point out could not reach him.

He in a sense deprived not only the particular draft law that he was accused of and later convicted of -- of disobeying but he defied all power of the authority -- of the country to be able to reach him, to compel him to perform his duty.

And the third head of jurisdiction are the war powers which we think also authorized Congress to pass this particular statute.

Chief Justice Earl Warren: Under that theory you've just announced, could you do the same if a man fled the country after committing any crime?

Mr. Oscar H. Davis: In my view Mr. Chief Justice, yes.

That is, if not if he fled the country to a place from which he could be extradited.

The theory which in it is -- I'll try to develop a little later, the theory is, that if you put yourself wholly beyond the reach of the United States in a sense that if you don't say as some people have said, I won't do what you want me to do I'll disobey your laws, but then you can do with me what you will that is you can impose punishment on me I will fight it but at least I will submit to the jurisdiction of the United States to the judicial authority, that's one thing.

But, if a man goes wholly beyond the United States to a place where he can't be reached even by extradition, then, we think it's a wholly different thing because then we think the individual has in a sense if I may say so, broken the ultimate compact between the citizen and the country which is that the citizen will at least agree to submit himself to the ultimate authority of the country.

He may not agree to obey its laws and he may not agree to do anything, but he will at least agree that he is subject to its jurisdiction and authority.

Chief Justice Earl Warren: I suppose there are many countries where we have no treaty to permit extradition in taxation cases.

Did the -- did the Congress say that a man who flees to another country to avoid paying his taxes to this Government loses citizenship?

Mr. Oscar H. Davis: I would say that -- I don't have to go as further in my --

Chief Justice Earl Warren: But you -- you've just gone that way, why don't you go?

Mr. Oscar H. Davis: No, no I --

Chief Justice Earl Warren: Why don't you --

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

I don't have to go any further in my argument than to say that the man flees to a county from which he cannot be reached either by a form of extradition treaty or by the handing over of the State.

The reason I made that qualification is I thought you said there were some countries that didn't have an extradition treaty but might hand them over anyway.

Chief Justice Earl Warren: No, I didn't say that they might hand them over.

I just said they didn't have an extradition treaty and if -- if Congress could then in your opinion deprive the man of his citizenship in this country where he was born for leaving the country for the purpose of evading taxes.

Mr. Oscar H. Davis: I think they can't deprive him for the purpose of evading taxes unless he goes to a place where he cannot be reached, where he defies the authority of the country and I gather support for that Mr. Chief Justice not only from the what might be called the ultimate relationship of the citizens of the country that the citizen has some ultimate obligation.

The ultimate obligation is to submit to the authority of the country.

But I -- I derive some support from that -- even from the wording of the Fourteenth Amendment which says that persons born or naturalized in the United States are citizens thereof and it says born or naturalized and subject to the jurisdiction of the United States and subject to the jurisdiction of the United States.

I think implicit in that notion is the fact that the American citizen does not put himself beyond the jurisdiction of the United States so that we can't reach him in any way.

I don't mean just by going abroad but we can't reach him even through our international treaties or through diplomatic negotiations.

That we can't reach him really short of going to war with the place to which he has gone.

Chief Justice Earl Warren: Well, if you use the Fourteenth Amendment for that purpose, wouldn't any person whether he committed a crime or not who went to a country with which we had no extradition treaty or any way of bringing him back forfeit his citizenship whether he commits a crime or not.

It wouldn't be under the jurisdiction of --

Mr. Oscar H. Davis: No.

I'm not -- I'm not saying that the Fourteenth Amendment that -- that -- the Fourteenth Amendment requires that people lose their American citizenship.

I'm saying that implicit in it is the possibility that Congress can take the position that if a man puts himself outside the jurisdiction of the United States then he shall and the United States wants him.

Of course if the United States doesn't want him, and they say it's perfectly all right to go to -- to Grass Stock or Lichtenstein or wherever you wish then -- and you may stay there but the point I'm trying to make Mr. Chief Justice is that the United States wants him and says we want you to come back to perform a certain duty and he says, “No, I will not and I'm putting myself in a place where you cannot reach me” then we think that that is permissible both under the principles of the Perez case and in the implicit assumptions of the Fourteenth Amendment that he can be, that Congress can provide for denationalization of such a person.

Chief Justice Earl Warren: And that's whether he has committed any wrong before he left to go to that place or not?

Mr. Oscar H. Davis: If -- if Congress wanted him back for some purpose.

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: That is if they said, we want all citizens to come back for military training, yes.

I would also say, I would take that position Mr. Chief Justice but I would also say, that I'm not required to take that position in this case where the obligation which he refused to fulfill has been termed -- called by this Court the supreme, the ultimate obligation of a citizen that is of military service in many cases.

And so, all I'm required to take for this case is the position that if a citizen goes abroad to evade that ultimate obligation, to a place where he cannot be reached then Congress can constitutionally provide for his loss of nationality.

Justice Felix Frankfurter: But he doesn't have to do anything wrong if he just stays abroad long enough?

Mr. Oscar H. Davis: Yes.

I think Congress can constitutionally provide that American citizens who remain abroad for a prolonged period of time.

This is a provision of the statute with relation of naturalized citizens today and many other countries have of similar provision with relation to both native born and naturalized citizens if they live abroad for a prolonged period of time without returning to the country.

Justice Potter Stewart: There are laws in good many of the States, aren't there canceling a good many rights of citizenship in the case of a convicted felon?

Mr. Oscar H. Davis: Yes.

Justice Potter Stewart: Are there any -- any State laws or that couldn't be of course that -- that purport to deprive a person of this United States citizenship?

Mr. Oscar H. Davis: Well, I know of none and I've seen no reference to it.

Justice Potter Stewart: Are there any that purport to completely deprive him of his citizenship in -- in that State or out that State?

Mr. Oscar H. Davis: I don't know of any, Mr. Justice Stewart, but I haven't made a search.

Justice Potter Stewart: They -- they --

Mr. Oscar H. Davis: I've not seen any references.

Justice Potter Stewart: Typically, they -- they deprive him of a right to vote.

Mr. Oscar H. Davis: Right to vote.

Justice Potter Stewart: And to serve on juries.

Mr. Oscar H. Davis: Yes and other -- other rights -- a labeled rights to the citizenship, yes.

There are many such and of course the federal criminal code has similar provisions for people convicted of federal criminal crime -- federal crimes.

Justice Potter Stewart: What and what do those --

Mr. Oscar H. Davis: Loss of right to hold public office for instance.

That's a -- a -- provision which appears several times in the 18 United States Code.

Justice Potter Stewart: Not as a generality but --

Mr. Oscar H. Davis: No, with relations to specific crimes.

Justice Potter Stewart: With relations to specific offenses.

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

In addition to the -- to the general proposition which I -- I've just been discussing it in colloquy with the Chief Justice, we think that the foreign affairs power does give sanction to this Statute which Congress enacted in 1940 and it's clear that foreign affairs can be involved because the citizen, the statute doesn't come into effect unless the citizen goes abroad.

When he goes abroad to another country, to Mexico as in this case, there is involved another country.

The United States which is the country of his nationality has double interest.

It has an interest in seeing that he returns if possible to serve his -- his Country in the Armed Forces as is required to do and it also has another we think interest that is it has an interest in saying that a particular country nearby whether it will be Mexico or some other country does not become a center of refuge or disaffection for a large number of draft evaders that we think is a -- a responsible interest which the United States can have.

Now, since the draft evader is in another country, the United States can call upon the other Country to deliver him up and say, we want you Mexico or what other country to send Mr. Mendoza-Martinez back to this Country.

And that is a possibility of embroilment there or the United States can get in touch with the draft evader individually, questionably and say we want you to return back.

Now, he may then turn to the country where he is because the country where he is a country of his present residence and he can call upon them at least for a certain measure of protection and he can turn to Mexico and say, I don't want to go back to the United States, you help me to stay here I don't want to go back and serve in the army.

I shall try to point out later that of course all these possibilities are heightened when he is a national of the country of – of play as he was in this case, but I'm speaking now of a situation where he is not a national of the country at play.

He is just an alien resident in Mexico and I'm trying to point out the possibilities of international embroilment which can occur just from this situation.

Now, this is not a passable possibility we think.

The 19th Century history of the relationship of the United States with Great Britain and France and Germany and Austria does show the difficulties that can arise when a country which has conscription as Great Britain, France, Austria and Germany did in the 19th Century and wants to enforce conscription, the difficulties that can arise when that country reaches over to another country and says, “You have a national of our country living in your territory, we want him back.”

The pages of Morris Digest of -- in national law and other books are filled with -- with diplomatic negotiations between this country and other countries with respect to claim of the foreign countries to have their citizens or people they regarded as their citizens, return to that country for the purpose of observing in the armies.

Now, this possibility can arise in the future.

It is certainly not beyond possibility that certain countries here and near this United States or faraway could become centers of draft evasion or disaffection and it -- in a situation it might become very important for the United States to be able to secure as large an amount of manpower as possible for the army and it would in a situation like that make a request to these countries saying, don't -- don't accept Americans who come to your country for this purpose.

Send them back or refuse them at the borders.

Our opponents say, well, the United States of course isn't required to make a request to the other country, it isn't required to create an international embroilment but of course you don't judge these issues and you don't test them by whether it's the other country which first raises the issue or whether it is we who raised the issue.

Extradition matters are matters of foreign affairs, but we are always the one who is asking the other country to send back, when we're asking to extradite somebody, send back the alleged criminal from the other country or when an American is mistreated abroad, it's this country which raises with the other country the issue of the American being mistreated abroad.

So, I don't think that there's any substance in the argument that the United States, even though its thought that another country was becoming too large a center of -- too large a refuge or sanctuary for draft evaders should, shall we say forestall any international complications by refusing to -- to draw the matter to the attention of the other country.

It is in the realm of foreign of affairs and it's a matter which the United States can appropriately take up with the other country as the whole history of the 19th Century indicates.

Justice John M. Harlan: Are there any figures as to how many people have been denied under the statute.

Mr. Oscar H. Davis: Mr. Justice Harlan, at page 31 of our brief is a Footnote which summarizes a table which was appended to the Government's brief in the Perez case and it gives the total.

The total is about 1000 full of period from 1948 to 1959.

Now, I would point out to you that this is only an administrative determination that is the Commission of Immigration and the State Department, the matter comes to their attention makes a determination which is not of course binding on the individual as to whether or not he has been expatriated.

Many of these have not sought to bring Court actions, but many of them had and these figures here relate only to the administrative figure so you can't definitively say that that number of people have been expatriated though I suppose many of them has accepted the administrative determination of it in that sort of Court action.

Justice William J. Brennan: Mr. Davis, one thing that's puzzles me about this last argument is this statute cuts them lose in America as soon as you go to the other country does.

Mr. Oscar H. Davis: Yes, that's right.

Justice William J. Brennan: I would suppose that would mean we wouldn't want them back.

Mr. Oscar H. Davis: Well, -- what I'm -- Yes I think that as soon as that --

Justice William J. Brennan: Now, I don't quite understand how this can play over this (Inaudible)

Mr. Oscar H. Davis: No I don't think that --

Justice William J. Brennan: I should think they would be mad that we're casting loose Americans that we don't want.

Mr. Oscar H. Davis: What -- what I was trying to argue Mr. Justice Brennan, I did not make it clear enough was that there is this possibility of foreign affairs involvement here as there was with relation to voting in the Perez case and that Congress could decide --

Justice William J. Brennan: Well, now where -- where -- where does that lie? Where is the possibility of foreign embroilment?

Mr. Oscar H. Davis: That is suppose Congress did not pass the statute, suppose Congress did what the opponents say they should have done and that is increased criminal penalties on people who went abroad then you would have pressure on the United States to go and get these people.

And what I'm saying is that Congress chose to root here which it chose in the Perez Case to say, we cut them loose.

We will no longer be interested in that, and that will minimize the possibilities of foreign embroilment and then --

Justice William J. Brennan: As for the other nation get little upset that we didn't do something to bring him back.

Mr. Oscar H. Davis: Well, the other --

Justice William J. Brennan: He may not (Inaudible)

Mr. Oscar H. Davis: -- nation always has the power to exclude them from its borders.

It has that power as a sovereign nation.

And -- and I think you're right, I didn't make it clear and I -- I want to take this opportunity to make clear that the purpose of the statute is to minimize and -- and limit the possibilities of foreign embroilment which could occur if the other methods of handling the problem of draft evasion by flight were adapted which had been suggested by our opponents and by others.

Justice Potter Stewart: This isn't a very efficient way to raise an army though, is it?

Mr. Oscar H. Davis: No.

It isn't an efficient way to raise an army but the -- debates make it clear that Congress thought that there's nothing like -- that -- that these people were gone and you might as well cut them loose.

They said that they weren't worthy of being American citizens, we didn't want them back.

And though I will make the argument later that -- that the one support for this statute is in war powers of Congress that is it does have certain inducing effects on -- deterring effects on an individual.

I think that the -- the major purpose as revealed by the debates was not so much that as the -- the cutting off of these individuals who had in either Congress refuse to comply with the highest obligation of the citizen.

Before the recess, if I might, I would like to call attention to the --the emphasis which all these problems that I've been talking about bear when the evaders is a dual national as he is in this case because of course then he can call upon the country where he is residing not only as a resident but as a citizen and -- and say, “I'm a Mexican, I don't want to go and fight for the United States.”

And of course that country, the country of the evasion, has an interest in protecting its citizens which is somewhat greater than in protecting its resident.

Now, these two isn't fanciful because in the first of these cases in this Court the Gonzales Case about three terms ago, which went off on the ground of burden of proof, Gonzales did make the argument at an executive agreement between Mexico and the Unites States freed him from all service in the United States.

And so, it isn't fanciful to say that a dual national who is in another country will argue that he -- that he isn't required to come to this country to perform a service.

Justice Felix Frankfurter: That factor can hardly be taken into account down the validity of the statute unless you argue that the statute is to be cut down to a dual nationality case before the Court.

Mr. Oscar H. Davis: No, sir.

But I think it has a -- a bearing in two respect.

One is that the history is very clear and the actual history under the statute is clear that it has -- it's had its major impact on dual nationals.

Every case that we have found where anyone has been expatriated appears to have been a dual national probably of Mexico and the United States.

Justice Felix Frankfurter: If that's so, you put it the other way around.

The existence of dual national as potential people who rid themselves with obligations to this country might well have been inducing cause of the legislation.

Mr. Oscar H. Davis: That was second argument, Mr. --

Justice Felix Frankfurter: All right.

Mr. Oscar H. Davis: -- Justice Frankfurter that it was an inducing cause.

This becomes clear from the -- from the letters which the Attorney general sent to the Senate Committees as well as from the debates that there -- it was clear that they were talking mostly about people who went to Mexico and there was a specific reference to the fact that these -- these were Mexican nationals too.

So, I rest on both grounds, Mr. Justice.

If necessary, I would also rest of course on a ground of separability that the case before the Court involves a dual national and that Separability Clause of the 1940 Act would separate out any other non-valid application of the statute.

We think also that -- that -- on -- on this matter of flight abroad that it does, particularly where the individual is a dual national, it does show in -- in reference to what the Court said in the Perez case about a choice of allegiance.

That it does show a choice on the part of this man for the protection of Mexico, his other nationality rather than the responsibilities of -- or the obligations of his American citizenship.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript: 

Argument of Oscar H. Davis

Chief Justice Earl Warren: Mr. Davis, you may proceed.

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

Those who seek to invalidate this statute Section 401 (j) characterize it as punishment and of course, they rest upon the decision of the Court in the Trop case in which that statute the desertion section was characterized as punishment and held to be invalid.

We think that this is different at least as presently applied to this particular individual in various respects.

First, the opinion of the Chief Justice for the four Justices in Trop rested we think primarily on the fact as I mentioned before that the result of expatriation or denationalization in that sense would be statelessness and the discussion is in terms of statelessness.

That of course would not be the result here because this particular appellee is a national of Mexico and would remain a national of Mexico and as I indicated before lunch that that is not a freak situation.

That appears to be, I can't speak statistically because we don't know, it appears to be the majority situation or at least a very substantial situation with respect to all the cases which have come up or most of the cases which have come up both judicially and administratively under Section 401 (j).

And as I also mentioned in answer to a query from Justice Frankfurter immediately before the recess, if necessary, we would of course say that the statute can be separably -- separately upheld as to dual nationals.

We don't of course concede that it would be unconstitutional as to people who are not dual nationals, but we do have that extra argument as to a person like this appellee who is a dual national and as I mentioned before, apparently, a large percentage of people affected by this statute fall in to the same category of dual nationals.

Then, secondly, with reference to the opinion of Mr. Justice Brennan in the Trop case, we think that there are these distinctions.

There's the foreign affairs matter which of course was not present in the -- in the Trop case because desertion could occur in this country and expatriation could occur right in this country as was pointed out.

There is not of course also the factor of the total repudiation of all authority of this country by going to someplace where the hand of the country would not reach him.

There is -- of course also not the fact of dual nationality which I just mentioned, but in addition to those factors, there are three other factors that I think I should mention.

One is, Mr. Justice Brennan, you pointed in your opinion in the Trop case that desertion need not always be serious.

That there might be desertions from army training camps in this country and you pointed out various situations in which desertion would not be serious.

I think the same cannot be said here.

I think that fleeing the country to evade the draft is always serious or remaining abroad to evade the draft is always a serious offense against -- against the country.

A second differentiating factor is that in the Trop case, as the Court will recall there was the power of restoration which was in the hands of the military that is the military could restore citizenship so to speak by reenlisting or re-inducting the man and some of the Justices indicated a disagreement with that power in the hands of the military.

That of course does not exist here.

There is no such power in the hands of the military.

And the third other differentiating factor in addition to the general ones of foreign affairs which I've mentioned is that in the Trop case, the denationalization follow from an -- a criminal conviction and I think Mr. Justice Brennan and perhaps some of the other Justices pointed out that the -- whatever deterrent effect might happen, the expatriation would have would be minimal compared to the criminal conviction.

Well here, you don't have to have a criminal conviction.

In fact, the -- the debates reveal and in most cases, Congress thought the people would never return to the country and therefore would never be able to be a proceeded against criminally.

They did indicate that if they did return, there was to be this additional conditional qualification of denationalization.

But I -- making a more broader argument than just the differences between this case and the Trop case, I want to go back if I may to -- to present the argument that this statute, in its inception in 1944 and its place in the 1940 Act was not a penal statute at all in -- in major essence and in major incidence.

The Court -- I won't recall for the Court the legislative history, the 1940 Act because it was quite thoroughly canvassed in the -- in the opinions in the earlier cases, but the Cabinet Committee did say that none of the grounds of denationalization which were presented in that Act were punitive in purpose.

Now, you come to 1944 when this particular Section was added to the -- to the portion of the Nationality Act of 1940 which dealt with loss of nationality to that very portion of the Nationality Act which the Cabinet Committee had said, did not impose any punitive sanctions.

I think perhaps the most important thing which I could say is that Congress of course had the 1865 Civil War Statute.

It deliberate before it, it deliberately made a change.

It did not require any criminal conviction.

It knew that the 1865 Statute has been interpreted as a penal statute as a punitive statute.

It made a change from that statute.

It did not require any -- any criminal conviction at all and I think the reason was as I've already indicated that they expected that lots of these people would not come back to the country.

Now, my -- the opponents will undoubtedly point out that in the debates, there was certain language in which the word penalty or punishment was used and of course, that was true, but I would like to go through the debates and the history to show -- to put these statements in context.

If you will look at the reports of the committees, you will not find any reference to punishment or penalty.

You will find a letter from the Attorney General, Francis Biddle at that time, suggesting this provision and talking in terms of these people not being worthy of citizenship in terms of a qualification or a condition rather than a punishment to be imposed upon certain actions.

Then, and I did not find in reading the -- the reports of the committees any reference to punishment or penalty at all.

Then, we come to the house debates and this bill was first passed in the house.

I think that a fair reading of the house debates would also not reveal any real reference to penalties or punishments.

The major concern of the house was in saying that these people were not worthy of American citizenship.

They should not be allowed to return to this country after they had failed to fulfill their duties.

There was a reference by Congressman Dickstein that he considered these people to be traitors, but I think that was a general colloquial reference rather than a designation of this as a crime or punishment.

Now, you -- I think the real main burden of the -- of the history in the house was in terms of qualification, in terms rather not of punishment, but of qualifications for citizenship.

Then you come to the Senate and it was a very short debate in the Senate and Senator Russell did use the term punishment.

These people are worthy of punishment or a penalty, he did.

I -- I would stress the fact that this was a bill which was unanimously reported and unanimously accepted and then on the basis of a very short debate in -- in the Senate in which the one person who spoke, though he was a Chairman of the committee, he was, a colloquial usage of the term punishment or penalty should not be used to invalidate a statute of Congress.

That when you seek to invalidate a statute of Congress on the ground of unconstitutionality of its invalidly imposing punishment, I think you have to have something more than some words spoken on the floor of the Senate obviously unprepared and extemporaneously in which a word was used which in other context might invalidate the Statute, that is if it were truly punishable.

I have already -- I don't want conceive that if it were punishment it would be invalid because my alternative argument of course would be, that even if it were punishment, the consequence which arose in the Trop case of statelessness would not occur here and therefore you would not have the holding of cruel and unusual punishment that you had in that case, but that's my -- I might call secondary argument.

The broader argument I would make is that the statute does not impose punishment at all and therefore is not to be governed by the provisions of the Eighth Amendment or the other criminal provisions of the Constitution.

Chief Justice Earl Warren: Mr. Davis.

Argument of Thomas R. Davis

Mr. Thomas R. Davis: Mr. Chief Justice and may it please the Court.

At the risk of being a little tedious, it may be useful for us to turn back to the exact terms of the remand since this Court – case is here for the second time.

It was sent back to Judge Jertberg, the sole judge in the northern division of our Southern District in California to reconsider in the light of Trop versus Dulles.

Now, it has been said more than once here this morning and this afternoon and I'm sure the Court is by this time aware that in Trop versus Dulles, the statute that was held unconstitutional was Section 401 (g) of the national -- Nationality Act of 1940.

Section 401 (g) provided that in time of war, a deserter who did desert could lose his citizenship for that Act.

Now, the Court is asked to consider Section 401 (j) which provides that a citizen deserter, a potential soldier who deserts before he's even gotten to the -- to the military service who leaves the United States or remains outside the United States may also lose his citizenship.

And I -- I submit, I hope I do not exhibit temerity by suggesting that if Congress had simply provided for the loss of citizenship in the case of draft evasion, we wouldn't be here.

The key element, the element that causes this to be an issue before this Court is departing or leaving the United States for the purpose of draft evasion.

Now, if this is the case, I suggest to the Court that all of the facets that we have considered and Mr. Davis has eloquently spoken on it can be considered in the light of that single element is departing from or leaving the United States a distinction with or without a difference.

Is it a distinction that should cause this Court to reverse the result in (Inaudible).

The first part considered by the Government in its discussion and I think properly is the Foreign Affairs power.

In considering whether or not this element of departing and remaining outside the United States introduces into this statute a new element which should persuade this Court to hold the statute constitution -- constitutional after having held Section 401 (g) unconstitutional.

In considering that, I suggest that we first again perhaps at the risk of being a little tedious can look directly at the language of the statue itself.

Departing from or remaining outside of the jurisdiction of the United States is the language.

I submit Your Honors, if Congress had truly had in mind the Foreign Affairs power, it never would have employ -- employed such awkward and negative language.

I do not mean to be facetious but it is possible to violate 401 (j) simply by crossing the international boundary in Lake Michigan to avoid a pursuing federal authority.

It's possible to violate it by going to some totally uninhabited land.

If Congress had truly had in mind the Foreign Affairs power when it considered and passed Section 401 (j), I submit that it reasonably could have been expected to use some language like entering in to or remaining in a foreign state or a language which would have that same result.

In both the Mackenzie and Perez cases, there was that -- an element which does not exist here.

The purpose in those two cases was to separate citizens from non-citizens.

No counsel appearing before this or any other Court to my knowledge has suggested any other way in which one could -- the Government reasonably could be expected to have separated -- I'm sorry, to have effectuated the power of the Government to tell who was the citizen.

It has to establish standards.

Therefore in Perez and Mackenzie, there is a unique element.

Congress chose the sole available remedy to it.

In contrast, if we are considering the Foreign Affairs power here, I submit that no such situation obtains with respect to draft evasion.

If the wrongdoer who was in fact a subject to punishment, I submit to the Court that there was available the usual scheme of conventional penal remedies that there is nothing unique in the -- in the fact of expatriation which was particularly necessary to effectuate this congressional purpose.

Therefore, for the first time, Congress has departed from a principle which I submit it has hitherto adhered to and that is let us not take away citizenship unless it is the sole means of accomplishing our purpose.

Now, whether it is penal in this in the technical sense, I will consider with your permission in a moment.

The next question with respect to the Foreign Affairs power is one which was raised by two members of the Court in interrogation on oral argument by the Government and that is how does this coercion actually facilitate the conduct of Foreign Affairs as a practical matter, what does it achieve?

If the United States is having trouble with Mexico, does it really make things any easier for Mexico to take away the citizenship of the people who had used Mexico as a refuge from the Draft Act?

I submit on the contrary, if the Court please, that it has created a problem of some proportions for Mexico.

What is the status of these people who are here?

They may or not be citizens of Mexico.

As I suggested in my brief, they may be named Jones and they may come from Vermont.

Now, what have we done to Mexico to create these stateless wanderers within its boundaries?

How have we facilitated the relationship of our Government with theirs?

And in that same connection, I suggest that there is nothing in the history of the United States in concrete terms that has been suggested to this Court, which even remotely implies that there is any real problem in foreign relations created or potentially available because of the existence draft evaders in a foreign land.

What really is the problem?

Now, counsel in his brief has -- has very ably discussed the early problems of the United States with respect to the impressments of foreign sailors which brought about in part the war of 1812.

What is that something that we are really faced with today as a practical matter?

I think implicitly and I'm putting words in counsel's mouth, but I think implicitly, he admits that the problem doesn't exist.

That in Judge Jertberg words, they are no different than ordinary tourist as far as their practical impact on the Government of Mexico is concerned, but seeing that gap in their argument, the Government hastens to say, but the United States may run in to trouble when it seeks to get these people back.

Now, I have suggested in my brief and I will merely suggest in passing here the fact suggests that the United States is in a position of having to -- to act without volition that it's forced in to a position where it must create problems with the Government of Mexico or whatever Government may be involved, but I suggest --

Justice Felix Frankfurter: In the relation with Mexico have not always been very (Inaudible)

Mr. Thomas R. Davis: No, Your Honor that's true.

There have been difficulties from time to time but I know --

Justice Felix Frankfurter: Not long ago -- not too long ago.

Mr. Thomas R. Davis: True, your Honor in the time of -- of General Pershing in 1912 as recently as that.

Justice Felix Frankfurter: Brings out the (Inaudible)

Mr. Thomas R. Davis: But I suggest that now, those problems are even remotely connectible with the presence of any kind of American Citizen on Mexican soil on a peaceful basis much less specifically the draft evader.

Justice Felix Frankfurter: How do you know that?

You're forecasting the future, aren't you?

Mr. Thomas R. Davis: No, I mean in terms of history Your Honor.

I didn't mean that there would not be, I said that there have not been.

I didn't mean to state it that way.

And so I suggest, if the Court please, that there is no distinction to be made here between this case and the Trop case by virtue of the existence of the provision for departing from or remaining outside of the United States as far as the war power, I'm sorry, as far as the Foreign Affairs' power is concerned.

But we must of course consider whether there is a distinction to be made in terms of the war power.

The Government seems to rest its case in chief on the argument that this is the only effective way to reach the draft evader who has left the country or to state it differently in the terms that I have suggested, departing from and leaving the United States does introduce a new element in to the case, which makes this case distinguishable from Trop because we have here a man who cannot be reached by the ordinary penal remedy.

That seems to be the thrust -- the main thrust the burden of the Governments argument.

I suggest to the Court in the first place that if we descend to the world of practicality and imagine our draft evader in concrete, whether he'd be in Mexico or any other foreign state, if he intends to remain there or if any event -- in any event he has given up any intent whatever of returning to the United States, he isn't going to be in the least impressed with his loss of citizenship.

Why should he care?

He has made a basic decision.

The Government nowhere has pointed that any example of a refugee, a refugee from a federal penal statute who actually went to a foreign agency of the United States and enlisted their aid.

It's true that the Government has pointed to a situation in 1863 where certain persons outside the United States were enlisting the aid of the state department, but the Government very quickly added in candor because it wrote a candid and forthright brief, it added that there was no penal statute which imposed any penalty for draft evasion at that time.

With that single exception, the Government has pointed in no case where anybody, whether they were trying to avoid taxes or that is conviction for taxes or whether they were under a sentence for a murder under a federal statute or whatever the statute might be, no case where such a person in a foreign land has relied on his United States citizenship.

I submit to the Court at the time that -- I beg your pardon, Your Honor.

Justice Felix Frankfurter: None of us that did they say grasping measures against the prisoner didn't take away his citizenship.

Mr. Thomas R. Davis: I'm not familiar with that Your Honor, I'm sorry.

Justice Felix Frankfurter: That the loyalty declared or mediocrity the gentleman that we can see and well the (Inaudible) special statute to impose very heavy consequence not that (Inaudible) can do with that prohibits?

Mr. Thomas R. Davis: But Your Honor, did Mr. Blackmore rely on his United States citizenship in connection with his refuge in Paris, or did he simply rely on his refuge?

Justice Felix Frankfurter: He held him -- held himself from the obligations of citizenship or his right.

Mr. Thomas R. Davis: Yes, it's true.

I -- I have no doubt that that's true in that and other cases.

I was saying that as a practical matter, the time when the refugee is going to begin to rely on his United States citizenship again is the day he decides to return and when he approaches this border and asked again that they admitted in to the United States, he is as subject as he ever was to the conventional penal statutes that are available.

If what I have said is true, the use of expatriation as a coercive force is totally ineffective.

The man who is drawn for good won't care, the man who is coming back and be punished much more drastically and immediately and effectively by conventional penal statutes.

And I wonder also Mr. Chief Justice, if it pleases the Court, how this statute actually did help the war effort?

Taking for a moment the argument of Mr. Justice Brennan in Trop, it was totally ineffective in the case of desertion.

By what magic did it suddenly become of effective in the case of draft evasion?

What is the essential difference in that respect?

How --

Justice Felix Frankfurter: Do you think a misjudgment -- the Congress will make a misjudgment as to the effectiveness of remedy in this proposal?

Mr. Thomas R. Davis: That's true Your Honor, but my argument --

Justice Felix Frankfurter: I'm just saying that every remedy as supposed is constitutionally valid.

All I'm suggesting is that we don't sit here and debate whether Congress is wise or not.

Some of us think that a lot measures are ineffective and self defeat.

Mr. Thomas R. Davis: Your Honor, I'm familiar with your position in that regard and I would say that my --

Justice Felix Frankfurter: (Inaudible) is just mine.

Mr. Thomas R. Davis: -- my argument Mr. Justice goes to the question of the existence of a rational nexus to put it in your terms.

I submit that the thing is so tenuous and remote to use the words of the trial court as to import the absence of a rational nexus.

And if we want them back, if we want these draft evaders back who have escaped to various corners of the world, how are we going to effectuate our purpose by making sure that they're not citizens of the United States anymore and are permanently and for all time beyond our reach.

The purpose, the traditional purpose of the Draft Act has always been to use every persuasive force to bring the offender back in to the fold and indeed as the Government itself points out by way of a footnote I believe on page 26 of its brief under the conventional penal statute as the ordinary offender has a time of redress when he, without severe punishment may still enlist in the armed forces and I submit that this is totally at odds with the purpose of Congress to raise armies, to bring together a vast and cohesive force for the purpose of effectuating the war power.

Justice Charles E. Whittaker: Why do you need power?

Mr. Thomas R. Davis: If there is deterrent, I agree Your Honor.

It is in common only to show that the deterrent does not in fact exist.

Part of my prior argument was directed towards that.

Justice Potter Stewart: Or to show that the deterrent is so harsh that it violates the Constitution I think it's cruel and unusual punishment.

Mr. Thomas R. Davis: That's another duty of mine Your Honor which is separate to consider the penal whether the statute is penal and if it is penal, then to consider the question of due process and of cruel and unusual punishment.

I was for the moment restricting myself to the two powers that we were considering and it brings me to that point Your Honor.

I had not intended in this time allotted to me to deal at length with the question of whether or not the statute is penal.

Four members of this Court speaking through the Chief Justice held that in Trop, the use of -- of expatriation to punish the deserter was a penal statute.

Mr. --

Unknown Speaker: (Inaudible)

Mr. Thomas R. Davis: Yes Your Honor and I would be glad by way of parenthesis to take up that specific question at this point because I do think it has become particularly relevant.

If the Court please, dual nationality and this is a classic case, may or may not be the result of the choice of the individual concerned.

In the case of Mendoza, he was governed by the law of the blood.

If your mother and father were born in Mexico, you are a Mexican.

Mr. Mendoza never had a chance to decide whether he wanted to be a citizen of Mexico or not.

There is nothing in this record or in the stipulations to show that he ever evidenced voluntarily a desire to be a citizen of Mexico and I suggest to the Court that it would be within the power of any foreign parliament or authority arbitrarily to create within this country a separate and second class of citizens.

The English Parliament could declare that everybody up to the third generation of descent were citizens of England if they wanted to, subject of the Crown.

Justice Felix Frankfurter: You don't have to avail yourself of that in unity but in order of (Inaudible) an obligation to another story --

Mr. Thomas R. Davis: There is no question about that Your Honor, but I submit equally that in this case, there is nothing to indicate that Mendoza ever availed himself of his citizenship.

Justice Felix Frankfurter: Probably speaking of this case has been a problem?

Mr. Thomas R. Davis: No, true Your Honor.

But if we do relate it to this case, Mendoza could as well have been named Smith and still have used Mexico as his place of refuge.

He has not thereby made any special use of dual nationalities simply because he went across the border to avoid the draft authorities.

The -- furthermore, I think the Court can properly consider whether or not we are not dealing here with a denial of the equal protection of the laws.

If without any choice on their part, one group of our citizens can be made a special class of citizens who may be expatriated and then deported by an Act of Congress where there brother citizens may not and where the decision is entirely involuntary and per force it must be when the decision is made by a foreign authority or parliament, if that situation exists, then I submit Mr. Chief Justice and if it pleases the Court that there is a denial of the equal protection of the laws.

Justice Felix Frankfurter: Would you deny that a person who has dual citizenship has a class is then the difference proper to the Congress putting aside all the other arguments?

Would you deny that -- that Congress can deal with dual citizens as a class if it was not a dual citizen because a likely order of a dual citizen availing himself, (Inaudible) in relation to the other country is greater than that of a federation that's better about this.

Mr. Thomas R. Davis: I have thought hard before I answered that question Mr. Justice and I do deny it.

Justice Felix Frankfurter: You do deny it?

Mr. Thomas R. Davis: I deny that Congress may consider as to natural born citizens, in any respect, in any respect that has come within my conception or it can that Congress may consider as a separate class these people who have been vested with a second citizenship.

Justice Felix Frankfurter: I don't think I made myself clear.

I didn't mean to imply that it would -- I couldn't even touch the broader question whether the constitution would denaturalize any of them.

Mr. Thomas R. Davis: No, I didn't think it did.

Justice Felix Frankfurter: Starting with the power, could it differentiate, could it -- assuming the power was redefined et cetera, could it they we will only be who was dual citizenship, people who have dual nationalities?

Mr. Thomas R. Davis: Yes, I had under ---

Justice Felix Frankfurter: Because of a practical fact, a fellow who is also a Mexican citizen has an easier haven or refuge in Mexico than one who hasn't the Mexican citizenship.

Mr. Thomas R. Davis: I have under --

Justice Felix Frankfurter: Or that reciting the practicalities on which Congress legislates all the time to a specific case may not present the advantage.

Mr. Thomas R. Davis: If the Court please, I did understand your question but I answered it ineptly.

My answer is no.

As to natural citizen -- natural born citizens of the United States, citizens who were born here, I deny that Congress may consider in any aspect their dual nationality.

There is also before this Court in the briefs, an extensive discussion of whether or not there was here a denial of due process of law.

Whether there was due process of law or not, however, depends on the preliminary consideration of whether first, this was a penal statute.

It is a question which has been discussed on both sides extensively in the briefs but I submit in the first place that we can escape that result on the basis of trial.

Aside from the merits of the issue that four members of this Court not only found it was punishment but found it was cruel and unusual punishment.

And Mr. Justice Brennan refraining from entering directly in to the sphere of cruel and unusual punishment very definitely found that it was penal and called in effect, species all over those arguments which termed it merely regulatory.

I am not unaware of the fact that the mere fact that a man personally suffers from an Act of Congress does not per se make it penal.

But there is much more here.

This is a -- an act in the first place for which this man went to jail.

In the second place, he – it's used in essence for coercion.

There's no pretense here that we're separating citizens from noncitizens as we listen to able counsel for the Government it was overwhelmingly evident that the sole purpose was to coerce this man not to do what he might have in his mind to do.

The purpose was punishment and the discussion that the Chief Justice set out in the -- in his opinion in Trop in which he spoke to four members of the Court.

He made particular reference to the fact that the purpose in 401 (g) in the case of desertion as it is here was undeniably that stopped somebody from doing what they are about to do or to punish them so that others would be deterred in the event that they did it.

Justice Felix Frankfurter: What if he -- if he makes that argument, I think you have to go back on your prior argument that (Inaudible) consider whether there is any potentiality of deterrent but it doesn't say the gathering, the assembling of an army is like --

Mr. Thomas R. Davis: Well Your Honor, there may be --

Justice Felix Frankfurter: (Inaudible) because it's intended to the term having just established that there is no deterrent element in it.

Mr. Thomas R. Davis: Your Honor, Congress may act with a coercive intent and yet act ineffectively and that is my contention here.

Justice Felix Frankfurter: (Inaudible)

Mr. Thomas R. Davis: Ineffectively Your Honor more than anything else because the offender, if he is going to be affected at all is going to be affected when he returns to the United States.

If he has no intention of coming back here, there is no reason why he should care anyway.

Justice Felix Frankfurter: But the whole -- whole argument indicates the whole problem of deterrent namely real people who are about to do something that is deemed totally undesirable check in that preference by remembering the consequence on which it is based on.

Mr. Thomas R. Davis: Well, if the Court pleases, the question is almost philosophical in character and at the risk of -- of giving a small answer to a large question that there was a finding of at least by Mr. Justice Brennan in Trop that the use of it there in the case of desertion where there was no reason, we didn't even have a question of leaving the jurisdiction of the United States that it was there an ineffective deterrent and it is my contention here that it was ineffective.

Justice Charles E. Whittaker: (Inaudible)

Mr. Thomas R. Davis: Within large limits if -- if Your Honor please, but there comes a point when the necessary and proper clause comes to test.

Now, the position taken by Mr. Justice Frankfurter and others of this Court as to the scope within which the Congress may act as to the necessary and proper clauses that it is large.

Other members of the Court have evidenced a feeling that the scope of Congress is not so large that there must be a really reasonable connection, a really reasonable expectation, if Your Honor please, of results.

Otherwise, within that very scope of the necessary and proper clause and nowhere else, this Court has the right to hold that the Statute is unconstitutional.

Now, I have omitted the contention and I should not omit it that this statute is penal in its character because of its traditional alliance with the ancient punishments of banishment and of ostracism.

And as a final point in that connection, I submit that it -- it leaves (Inaudible) the contention of -- this is a regulatory power when we consider the true most of recorded history, banishment and ostracism and in the end this comes to nothing but that with the harshest among the harshest and least humane of punishments that were used by early man and the abandonment of those punishments has been considered to be an act of enlightenment or triumph of civilization.

Now, if the Court should adapt my contention that we are in fact dealing with a penal statute, then we come squarely face to face with the express position expressed by the Chief Justice for three other members of the Court in Trop that Section 401 (j) was dictum in a sense was lacking even the rudiments of procedural due process of law.

Yet, before anybody did anything, the citizenship was drawn.

There was -- there's no -- even a provision -- as the Chief Justice pointed out under 401 (g) at least there was a court-martial.

Somebody considered whether or not the man had done the act in question.

In the present case, there's just a naked statement that one who leaves the United States or remains there for the purpose of draft evasion, ipso facto loses his citizenship.

The first answer given by the Government to that is of course to rely on Section 503, which gives a right to declaratory relief and was in fact the Section under which this present action was brought, but as previous questions I believe by Mr. Justice Stewart have already brought out, there is no provision here for trial by jury or the other careful protections that are given in the case of a truly penal statute.

And on this particular point, I invite the Court's careful attention to a letter which counsel himself cited in his argument.

It is set forth for the Court's convenience as an appendix in the amicus curiae brief of the American Civil Liberties Union and a letter -- a letter from Attorney General Bill which is entitled Circular Number 3893 Department of Justice December 5th, 1944.

Chief Justice Earl Warren: I'm curious where that can be found?

Mr. Thomas R. Davis: At the end as an appendix, Mr. Chief Justice.

Attorney General Biddle expressly provides for a simple examination of the file if the Court please, by the United States Attorney and, “upon the termination, this is by the United States Attorney, upon determination that Public Law 431 is applicable, he shall close the case”.

There's never going to be any trial as far as the United States is concerned.

He shall close the case and notify the Federal Bureau of Investigation of his action.

In the second paragraph going on, “The Federal Bureau of Investigation will thereupon close its file in the case and furnish the Immigration and Nationalization Service for the information pertinent to the application of Public Law 431” and to add something there of my own, this means that the per se, the subject offender is now become an alien.

It's up to him to reverse the process and to get out of this situation that the Government has put him in.

And in the third paragraph, the United States Attorney shall notify the State Director of Selective Services of the names, numbers and local boards of all such closed delinquency cases so that his records and those of the local boards may be appropriately noted.

If the Court please, I submit, the United States has evidenced as clearly as it could that it intended a summary procedure for the depravation of citizenship which could only be redressed after the fact and assuming that the man was in a position somehow to invoke the laws of the United States and this Court well knows that there has been considerable difficulty as an independent issue about that, but assuming that he can get in to the Court, he gets there under a civil proceeding in which the burden is on him to prove that he is a citizen, not upon the United States to prove that he is not.

I thank the Court.

Chief Justice Earl Warren: Mr. Davis.

Justice William J. Brennan: Mr. Davis may I ask you a question?

Suppose Mendoza (Inaudible)

Rebuttal of Oscar H. Davis

Mr. Oscar H. Davis: Well, I couldn't make the argument.

I could make part of the argument Mr. Justice Brennan.

I could make the argument that he would not be stateless which was I think that the most important factor in the decision of the four members of the Court who joined in the Chief Justice's opinion in Trop because even thought he lost his American nationality, he would still be a Mexican citizen.

And I could make that argument.

I could not make the argument of his ability to call upon the state of his own nationality for protection.

But there would be an argument, not as strong but I think that would exist and could exist in the situation whereby Mexico, if it were in difficulties with the United States could say to Cuba, we don't want you to send Mendoza back to the United States; he is our national, he's a Mexican and we want you to keep him there in Cuba we don't want him to go back to the United States to fight in this war which we don't agree with.

So that the fact that he is a dual national and has another country's -- another country has an interest in him and protects him is always a factor regardless of where he goes.

Justice William J. Brennan: The -- the Government argue overall that the adding of flight to Mexico might be taken as evidence of the voluntary surrender towards the --

Mr. Oscar H. Davis: All I've read is the Government's brief in the memorandum in the trial Court and they did raise the issue of dual nationality.

That was most clear.

Justice William J. Brennan: I mean in the sense of --

Mr. Oscar H. Davis: They did said --

Justice William J. Brennan: -- preliminary act duration or--

Mr. Oscar H. Davis: I think that they did not say -- say it in the sense and I do not think we could say it in the sense in which the dissenters in the Perez case were talking about it.

I do think that we can't say and we do say that it is an indication of a kind of choice, not that he voluntarily renounced American citizenship because I don't think he had that in mind, but that he knew he was a Mexican national and he chose the protection of Mexico as against his obligations to the United States and in that sense, I can't definitively say that we made that argument because I don't recall but -- but it's an argument of law anyway and I make it here now.

On the issue of due process, I think counsel was in error in talking about the burden of proof under Section 503 of the Nationality Act -- under declaratory judgment proceeding.

As I well know from a case that I had argued previously in this Court, the burden is on the plaintiff, the Mendoza in this case to show that he was born in America which he does by showing his proof, I mean, showing his birth in the United States.

The burden then shifts to the United States to prove that he was expatriated so he does not bear the burden of proving, under this Court's decision, that he is not expatriated.

He bears the very simple burden of showing that he was born I believe in California in 1922.

The burden then shifts to the United States to show that he went to Mexico for the purpose of evading the draft or remain there.

Of course those issues are not involved in this case in view of the undisputed stipulated facts, but the -- the general counsel I think misapprehends the request of the proceedings under the statute.

Counsel said to the Court that Congress could not have been interested in foreign affairs problems because of the wording that it shows for the statute.

He thought that Congress should have said, departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the Presidency to be national emergency.

Instead of saying that, they should have said, departing from or outside the United States to enter a foreign country, I suggest that if that language had been used and a man had gone on a ship of a foreign nationality, the Government would have a much harder job than we have here today, but the general language departing from a remaining outside the jurisdiction covers practically every though of it because it covers anybody who goes to the land territory of the foreign country and it covers people who go on ships or airplanes of foreign countries.

The only place that I think would not be covered might be some wasteland in Antarctica and I suppose most of those are now claimed by the countries of the world.

So that the land which is very apt to cover everybody who goes, who put themselves under the jurisdiction of another country either on a ship of another country or on a -- on land territory.

To mention, I have talked a bit on this rebuttal of dual nationality which was also brought out, aspect to which it would brought out in colloquy of Mr. Davis and the members of the Court, but I would like to say several -- few more things.

Every country in the world allows a person to renounce his nationality.

Mendoza could have renounced his Mexican nationality; he wasn't compelled to retain his Mexican nationality.

So that I think that really, there's no substance to the argument that it was imposed upon him willy-nilly and that he had to have it.

He could have renounced his Mexican nationality but instead of renouncing his Mexican nationality, he sought to use it.

He went to Mexico.

And the reason why dual nationality is so important and not just an accident or freak in these cases is that it's because people with dual nationality have a better chance of going to other countries.

If a man named Smith from Vermont, who is not a national of Mexico, arrives at the Mexican border, he won't get in ordinarily. Mr. Mendoza-Martinez gets in because he claims Mexican nationality.

So, it's inherent in the problem.

It's not freak or an accident that people of dual nationality have a greater chance of going to other countries.

I don't need to say that they're the only ones because they aren't, but they do have a greater chance and this was an actual effect that a major part of the problem of which Congress was dealing and the appellee here did choose to take advantage of his Mexican nationality and go to Mexico.

Chief Justice Earl Warren: Mr. Davis, I've just been wondering, are -- are we in any such emergency now to this accident applies?

Mr. Oscar H. Davis: Oh, yes sir.

Oh, at the moment?

Chief Justice Earl Warren: This language is what I'm referring to during the period or in time of war or during a period declared by the Presidency to be a period of national emergency for the purpose of evading or avoiding training and service in the land of naval force in the United States.

Are we -- is there a presidential order now?

Mr. Oscar H. Davis: May -- may I clear something here, Mr. Chief Justice?

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: That the phrase a period declared by the Presidency, a period of national emergency is not a special period of national emergency for this statute.

It's a general period of national emergency.

In other words, I don't think that the last two lines qualify a period of national emergency declared for the purpose of evading the draft.

Chief Justice Earl Warren: That's what I'm addressing.

Mr. Oscar H. Davis: It's a general and I cannot answer the question.

I think we are still, I will look it up Mr. Chief Justice.

I do not know whether we are now in such a period of national emergency.

Of course at the time this case arose, we were in actual war, World War II.

Chief Justice Earl Warren: Yes, but would -- would you let us know place as a matter information whether we are operating under any emergency as declared by the President whether --

Mr. Oscar H. Davis: Which would figure this test --

Chief Justice Earl Warren: -- whose acts would apply at the present time of the young man went to another country in order to avoid the draft?

Mr. Oscar H. Davis: I will, sir, yes sir.

The last thing that I might mention because of the reference of counsel to the fact that in the Chief Justice's opinion in Trop, he did refer to this statue and since he appeared to be speaking for three other members of the Court, I think it's appropriate for me to point out that in Mr. Justice Whittaker's memorandum in the Perez case, he explicitly said that he was not passing on the constitutionality of this Section 401 (j) which was also involved in Perez and he neither expressed nor implied any opinions on that statute.

And so, I think it can be fair to be said -- fairly be said that that portion of the Chief Justice's opinion did not speak for Mr. Justice Whittaker who had explicitly said that he was reserving his views on that subject.