KENNEDY v. MENDOZA-MARTINEZ

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Argument of Thomas R. Davis

Chief Justice Earl Warren: Number 19, Robert F.Kennedy, Attorney General of the United States, Appellant, versus Francisco Mendoza-Martinez.

Mr. Davis, you may proceed.

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

This case is here on direct appeal from a judgment of the Southern District of California under 28 United States Code 1252 and it's here on direct appeal because that Court held invalid a statute of Congress, Section 401 (j) of the Nationality Act of 1940, providing that person subject to the draft who leave the country for the purpose of evading draft are expatriated, lose their nationality and Section 1252 provides for direct appeal to this Court from the judgment of any court of the United States holding invalid a statute of Congress.

As the Court will no doubt recall, the case has been here twice before at the October term, 1957.

The case was remanded after the decisions in the Perez and Trop cases relating to expatriation for foreign voting and expatriation for desertion.

At that time, the District Court held the statute unconstitutional and it was again appealed by the Government directly to this Court.

After the argument of the case, the Court sua sponte, found in the record a lurking question of collateral estoppel which it thought beclouded the record and it remanded the case to the District Court with permission to the parties to amend the pleadings to raise that issue.

And the case was so remanded and as I shall stand in a min -- state in a minute, that issue was resolved adversely to the appellee by the District Court and the District Court again held the statute unconstitutional and the Government again brought the case here.

Now, in this posture of the case, there are two issues before the Court.

One is the non-constitutional issue on which the Court remanded the case the last time.

That is the issue of collateral estoppel because Mendoza-Martinez, the appellee had been convicted of draft evasion in 1947.

And the question is, whether that conviction for draft evasion in 1947 collaterally estops the Government in this case from claiming that he lost his citizenship as a result of Section 401 (j) of the Nationality Act.

And the other question is the same question which has been twice here before that is the validity of the statute itself and that issue in and of itself comes here unencumbered by any dispute as to the facts because the facts had been stipulated below both on the prior occasions and on this occasion and Mendoza-Martinez has agreed that he did leave the country and remain abroad for the purpose of evading the draft.

I should state at the outset for a moment that there follows this Number 20, a Court case which has a relationship to this case.

In that, there was presented in that case the constitutionality of the successor provision in the 1952 Act.

This case arises under the 1940 Act.

The successor provision, as I will try to point out in that case, is in the respect pertinent here is the same as Section 401 (j) with which we are dealing.

But there are nonconstitutional issues in the Court case which are different from the non-constitutional issue in the present case.

And there is one further fact which I should mention at the outset which may have some significance and may not which does differentiate the court case from the present case, because this appellee is a dual national, that is since birth, he was a national of both Mexico and the United States.

The Court in the next case so far as we know is only a national of the United States.

Now, the facts are very simple.

Justice William J. Brennan: Now, before you get to them Mr. Davis, this is a one judge tentative to one constitutionality --

Mr. Thomas R. Davis: Yes, but --

Justice William J. Brennan: -- the court was a three-judge.

Mr. Thomas R. Davis: Yes.

Justice William J. Brennan: Why wasn't there three-judge court required here?

Mr. Thomas R. Davis: The answer Mr. Justice is that a three-judge court is only required when an injunction is sought against the enforcement or operation of an act of Congress, an injunction as the words of the statute.

Justice William J. Brennan: Well, what was sought by this complaint?

Mr. Thomas R. Davis: Declaratory judgment.

Justice William J. Brennan: Well, is that so, at page 23.

Mr. Thomas R. Davis: Well, may I go into that for a moment, Mr. Justice.

I have two answers.

And one is that as this case was brought originally and if the Court will look at the record of the 1957 term I have examined, the amended complaint which came to the Court at that time as solely for declaratory judgment.

Justice William J. Brennan: You mean we don't have the amended complaint here?

Mr. Thomas R. Davis: You don't have the first amended complaint.

It was unfortunately never printed.

Justice William J. Brennan: Why would it -- well now, what is before us?

The second or one --

Mr. Thomas R. Davis: Yes, but I'm quite --

Justice William J. Brennan: -- concerned about it is --

Mr. Thomas R. Davis: Yes, but what I'm trying to say is that that was amended after the case was remanded at the preceding -- by the preceding decision of the Court and which consent was only given to the parties to amend with respect to the issue of collateral estoppel.

And my first point is that this amendment of the complaint at that time when the case was remanded before was not pursuant to the Commission which this Court had given in the 1959 term and it's remanded only on the issue of collateral estoppel.

So that this amendment of the complaint to ask for an injunction against the deportation order which is on page 23 of the record was not -- it's pursuant to the mandate of this Court and therefore it was not a proper amendment.

That's my first point in that.

Justice William J. Brennan: But where -- how do we know all this?

From what --

Mr. Thomas R. Davis: Well, the mandate of the Court is in the record.

The mandate of the Court of the 1959 term is in the record.

Justice Tom C. Clark: Are there any more amendment --

Mr. Thomas R. Davis: At page -- at page 20, it is ordered and adjudged by this Court, that this Court be in the same as hereby remanded to the District Court with permission to the parties to amend the pleadings if they so desire to put in issue the question of collateral estoppel and to obtain an adjudication upon it.

As I read that, it gives consent to one amendment of the complaint or one subject.

It does not give consent to other amendments of the complaint.

That is my first answer --

Justice William J. Brennan: Well -- is this second amended complaint before us is part of the record upon which we have to decide this case?

Mr. Thomas R. Davis: Yes, but one of my -- my statement, Mr. Justice Brennan, is that this amendment was an improper amendment which the Court need not pay attention to in deciding this case.

I have other answers but that's my first one.

And the second answer --

Justice William J. Brennan: A very wise man once said, “One good answer is enough.”

Mr. Thomas R. Davis: But obviously, Mr. Justice Brennan may not be satisfied with that answer --

Justice Potter Stewart: Naturally, obviously, I can assure you, he's not satisfied.

Mr. Thomas R. Davis: Then I would go on --

Justice Felix Frankfurter: I didn't say that your -- the answer you've given me is (Voice Overlap)

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

Justice Felix Frankfurter: Let me ask you a better one.

Mr. Thomas R. Davis: I understand, Mr. Justice.

The second answer I have --

Chief Justice Earl Warren: Aren't you going to give us -- tell us why that isn't -- why it isn't a proper amendment.

Mr. Thomas R. Davis: Because the Court remanded the case only to amend the case -- amend the pleadings with respect to collateral estoppel.

And this amendment asking for an injunction in addition to a declaratory junction does not relate to the issue of collateral estoppel, has asked for another type of additional relief going to the whole case.

Justice William J. Brennan: Let me get this clear Mr. Davis.

You're telling us now that this prayer at page 23 of the second amended complaint asking that defendants are enjoined and restrained.

You say there was no such prayer in either the original complaint --

Mr. Thomas R. Davis: I don't --

Justice William J. Brennan: -- or the first amended complaint?

Mr. Thomas R. Davis: I don't know about the original complaint but the First Amendment complaint which I have seen in the record of the Court at the 1957 term which was first here did not contain this paragraph four.

Justice Potter Stewart: That would also be the record that was before us in the 1959 (Voice Overlap) --

Mr. Thomas R. Davis: That is right.

That is right.

Justice William J. Brennan: Well, that might explain why none of us saw the possibility of the three-judge court question with that matter.

Mr. Thomas R. Davis: I think actually --

Justice William J. Brennan: Perhaps why you didn't see it too.

Mr. Thomas R. Davis: I think actually -- I think it doesn't exist even apart from this Mr. Justice.

Justice William J. Brennan: I know you do.

I know you do.

Mr. Thomas R. Davis: For the reason --

Justice William J. Brennan: On the face of this complaint.

Mr. Thomas R. Davis: No, even on the face of the complaint.

Justice William J. Brennan: Alright.

But it --

Mr. Thomas R. Davis: The reason is that the Court -- that the Court has indicated that a three-judge court is to be convened only where there is to be an injunction against the enforcement of a federal statute and the mere asking for an injunction in other respects or the mere asking for the invalidation of the statute so a declaratory judgment doesn't trigger the three-judge court provision.

Now this --

Justice Potter Stewart: Is there any case on that latter proposition?

Mr. Thomas R. Davis: Well, yes.

The case that I'm about to cite to Your Honors is the case of Flemming against Nestor which was decided two terms ago in an opinion by Mr. Justice Harlan.

Justice William J. Brennan: Harlan.

Mr. Thomas R. Davis: And we think it's quite close for this reason.

There was in that case -- the Social Security Administration had denied social security benefits to Nestor because he had been deported for certain reasons and under the statute he was no longer entitled to benefit.

He attacked the constitutionality of that provisional statute.

And of course, he was denied relief by the administrators.

And he brought suit in the District Court not asking for a three-judge court, but under the special provision of the Social Security Act which provides a review by a single-judge.

And, he -- the question -- this Court preserved the hearing on the merits, the issue of whether there should have been a three-judge court.

And the Court decided on that time that in that particular -- in that kind of case, where he was seeking a review of the denial of benefit even though it was --

Justice William J. Brennan: That was of an administrative decision.

Mr. Thomas R. Davis: That's right and the same is true here, because this is being brought under Section 503 of the Nationality Act.

Perhaps, if I complete my statement of the Flemming case or the Nestor case, I'll be able to show the analogy, which we think exists.

The Court there said that even though the District Court, the single-judge court, had the power to pass on the constitutionality of the statute in reviewing the denial of benefits, it didn't seek -- the case didn't seek an injunction against the operation of the statute as a whole, and therefore, a one judge court was proper, and it upheld the jurisdiction of the District Court and went on to the decide the merits.

Now, the analogy that we think exist in this case, that this is too, also, being brought under a special provision of the statute, Section 503 of the 1940 Act which provides for a declaratory relief against denial to citizenship claims by the administrators.

Justice William J. Brennan: Well, except this, Mr. Davis.

If we had only this complaint before us, why isn't this complaint in fact seeking a declaration that he was a citizen and in addition, an injunction enforcing that declaration, not merely as in Flemming and Nestor, the reversal of an administrative action?

Mr. Thomas R. Davis: Well, I think in --

Justice William J. Brennan: On the face of this complaint, why isn't that what this complaint is?

Mr. Thomas R. Davis: I think in Flemming and Nestor that -- that -- I do not recall that they ask for an injunction in addition though they may have.

I'm not sure about that.

But what they --

Justice William J. Brennan: My recollection --

Mr. Thomas R. Davis: What they basically ask for was a determination that the statute was invalid, and therefore, that the administrator was wrong.

Here, what is being asked is for a declaratory judgment, in fact, the very first -- said portion of the complaint on page 21 says “This is an action for a declaratory judgment under the.”

Justice William J. Brennan: How much is it true?

It's a declaratory judgment that he is a citizen and the relief of an injunction against the enforcement of the deportation orders on the ground that he is a citizen, not merely a reversal of an administrative decision, is it?

Mr. Thomas R. Davis: Yes, but compared to the complainant in the court came where they ask for an injunction against the enforcement of the statute and enforcement of the statute not only an injunction against the enforcement of a particular administrative decision.

I do not recall at the moment whether in Flemming and Nestor, though it may have been, but I don't recall, they added on to their original review relief provision -- request for relief.

And they're -- and also to enjoin the Secretary --

Justice William J. Brennan: I don't think so.

You may be right but --

Mr. Thomas R. Davis: I'm not --

Justice William J. Brennan: I think all they asked in Flemming and Nestor was for a judgment and I'm quoting “affirming, modifying or reversing the administrative decision”.

Mr. Thomas R. Davis: I'm not certain --

Justice William J. Brennan: I thought that's all I ask.

Mr. Thomas R. Davis: -- whether they had it or not, but I think it would have made a difference if they had.

I think that if they had sought -- follow the statutory proceeding of the Social Security Act and had asked for what they ask that had then added a catch off phrases here asking for an injunction against the secretary to prevent him from enforcing the statute against it or denying relief.

Justice William J. Brennan: Well, certainly again --

Mr. Thomas R. Davis: Yes sir.

Justice William J. Brennan: On the face of this amended complaint, what's asked is an injunction against enforceable deportation letter.

Mr. Thomas R. Davis: Well, that's a different thing from an injunction against the enforcement of the statute.

As I think --

Justice William J. Brennan: Well, deportation orders have to rest on the constitutionality of facts.

Mr. Thomas R. Davis: Well, yes, yes.

I agree with that.

But, if I come back --

Justice William J. Brennan: Well, I don't see how that is an enforcement -- an injunction against the enforcement of the statute.

Mr. Thomas R. Davis: I come back to the thing I said before Mr. Justice Brennan that where there is a statutory proceeding, a special statutory proceeding such as existed in Flemming and Nestor, and as we think exist here, a special statutory proceeding will have more to say about this in the next case, but it applies here where there is a statutory proceeding for review, in here it's called the declaratory judgment type of action.

Justice William J. Brennan: Well, it is a declaratory judgment though under the general declaratory statute.

Mr. Thomas R. Davis: No, this is not.

Justice William J. Brennan: 1503 (a)?

Mr. Thomas R. Davis: This is under the special provision.

Justice William J. Brennan: 1503 (a)?

Mr. Thomas R. Davis: 1503 (a) of Title 8 --

Justice William J. Brennan: That is a special --

Mr. Thomas R. Davis: -- is a special provision.

Justice Potter Stewart: Which in turn refers to the (Voice Overlap) declaratory judgement statute?

Mr. Thomas R. Davis: Yes.

But it provides a special provision.

Justice Potter Stewart: Right.

Mr. Thomas R. Davis: And our argument is that whether there is a special provision of that kind --

Justice William J. Brennan: It's not from a special -- not from administrative declaratory.

Mr. Thomas R. Davis: Well, it is only triggered if there has been an administrative denial.

It is not precisely the same as the kind of review you have in a labor board case but you can just start it.

If you think you want a declaration of your nationality, you have to had an administrative -- a final administrative denial of your plan, and that triggers the special statute and when you -- when a review proceeding is brought under this -- a special statute of that kind as in Flemming against Nestor, and where you are really seeking a review in reverse of an administrative determination of nationality as it's true in Flemming against Nestor, we think that --

Justice William J. Brennan: If I accept your words and your description that's what it is, that's -- that's an accurate descriptive you are having.

Mr. Thomas R. Davis: Well --

Justice William J. Brennan: You have to get the administrative determination.

Mr. Thomas R. Davis: Yes.

Justice William J. Brennan: But then you have to get a judicial review by a way of declaratory judgment and I suggest that if you answer that, a prayer for injunctive relief has certainly this second amended complaint.

Then you do raise the question of the application of 2283 and the requirement for three-judge court.

Mr. Thomas R. Davis: Mr. Justice, I'd say again that if in the Nestor case, the plaintiff there had raised -- and there had said four after the review proceeding and declaratory judgment and we seek an injunction against the Secretary's denying benefits to may -- on the ground of the invalidity of the statute.

I think that the decision of the Court would not have been any different than it was, and that the Court would have said that a single-judge could properly have -- hear the case.

Justice Felix Frankfurter: Am I right in saying that underlying your specific argument is the assumption, the starting point that the three-judge court provision must be strict according to the letter enforced and no argumentative consideration, something just as good as that.

Mr. Thomas R. Davis: I think that is in the course of decisions of the Court that the Court --

Justice Felix Frankfurter: But at the bottom of it --

Mr. Thomas R. Davis: The Court has indicated that there can be determinations of unconstitutional --

Justice William J. Brennan: Well, let's see.

Let's say for example, suppose we don't have this particular problem but one just relies under the declaratory judgment action --

Mr. Thomas R. Davis: I think --

Justice William J. Brennan: -- to attack the constitutionality of the federal statute.

And all he seeks is a --

Mr. Thomas R. Davis: Declaratory judgment.

Justice William J. Brennan: -- that was all that was done in this case, is a declaration of unconstitutionality of the federal statute, that in that way, you can get around the requirement --

Mr. Thomas R. Davis: I think that has always been the interpretation --

Justice William J. Brennan: But that hasn't -- that -- has this Court ever held that?

Mr. Thomas R. Davis: No, I think the issue is never been decided but I think that has been the course of interpretation.

Justice William J. Brennan: Well, that's a rather easy way to get around the three-judge requirement, isn't it?

Mr. Thomas R. Davis: Well, the Congress provided an injunction because they were interested in not stopping the wheels of administration from going.

An injunction has an effect which is declaratory judgment.

Justice William J. Brennan: No, tell me.

Tell me, if there's a declaratory judgment that an act of Congress is unconstitutional, is there any member of the executive department charge of this enforcement that would in fact enforce it?

Mr. Thomas R. Davis: Oh, yes.

I think --

Justice William J. Brennan: Sure he would.

Mr. Thomas R. Davis: -- I think that that he would enforce (Voice Overlap) the particular case.

Justice William J. Brennan: It's a judicial determination that is unconstitutional.

Mr. Thomas R. Davis: Yes, if it were decided by a lower court, yes.

Unknown Speaker: But it has been -- the defense argument about it (Inaudible).

Mr. Thomas R. Davis: That made me.

I'm not aware of that.

But I think --

Justice Potter Stewart: I'm not aware of any either.

Mr. Thomas R. Davis: -- and I think that's one reason why the Congress passed 28 U.S.C. 1252 providing for a direct appeal, because where there -- and that's not limited to injunctions that can cover declaratory judgments any kind of civil proceedings.

Justice Potter Stewart: But what was the idea of a three-judge court?

Mr. Thomas R. Davis: I think the idea originally, and of course it came in with relations to state -- of state legislation.

It came in long before there were a declaratory judgment or at least before they come long before the federal declaratory judgment passed.

And the common way of proceeding in those cases was to enjoin a state from enforcing a particular statute.

Of course, it was only -- the only people who could take, what shall I say, benefit of it were the plaintiffs and those incriminated.

Justice Potter Stewart: This is the long way around to saying that the Congress didn't want single-judges declaring state statutes or preventing the enforcement of state statutes in the grounds of unconstitutionality by enjoining their enforcement.

Mr. Thomas R. Davis: No, I think that Congress didn't care about single-judges saying that state statutes were unconstitutional.

It didn't want single-judges to enjoin the operation of the statute, so that the entire administrative procedure or whatever it was under the statute would come to halt.

I think that that's true.

Then, I think history is also showing that there is kind of narrowing in the eyes of Congress of the impact of the three-judge court provision, so that as time went on, and it was applied to the federal government later, and then as time went on, this Court indicated that there could many decisions of unconstitutionality without have -- without a three-judge court by a single-judge court.

And then in 1937, in the New Deal days, the Congress put in its provision that I stressed, the 1252, where a single-judge could do it because they understood that there would be proceedings where a single-judge would hold the statute of un -- unconstitutional of federal statute.

They want a quick review, but I think that the difference -- there is a difference between quick review in this Court which they didn't want, and provision for a hearing by a three-judge court which they were willing to leave in the terms of which it had classically been an injunction against the operation or enforcement of the statute.

That Mr. Justice is our position.

Justice William O. Douglas: On the merits, are there any decisions apart from the lower court ruling in this case that a resident alien who leaves for the purpose of evading the draft and returns could be prosecuted for evading the service?

Mr. Thomas R. Davis: Resident alien?

No.

There are no -- it could be prosecuted.

I don't know.

I haven't looked up the decisions relating to resident aliens.

I do not know.

Justice William O. Douglas: They're the ones that --

Mr. Thomas R. Davis: No.

Justice William O. Douglas: But you say in your brief would be subject to prosecution?

Mr. Thomas R. Davis: We say that both citizens and resident aliens would --

Justice William O. Douglas: Yes.

Mr. Thomas R. Davis: -- I come then to the collateral estoppel issue which --

Justice William O. Douglas: Yes but --

Mr. Thomas R. Davis: -- which you are talking Mr. Justice.

Justice William O. Douglas: Is this the only decision -- Judge Jertberg's decision.

Is that only one --

Mr. Thomas R. Davis: I don't think Judge Jertberg's decision has to do with resident aliens.

I think it has to do with the man who was a citizen and then left the country and lost his citizenship under Section 401 (j) which was enacted in 1944.

There are other decisions --

Justice William O. Douglas: But I thought we have to decide the resident alien point in this case.

Mr. Thomas R. Davis: No, I don't think you'll have to decide the resident alien point, Mr. Justice Douglas.

The only possible relevance (Voice Overlap) --

Justice William O. Douglas: (Voice Overlap) collateral estoppel, don't you?

Mr. Thomas R. Davis: Estoppel and if I may expatiate a little on that which is the other uncons -- nonconstitutional issue in the case, our -- let me recall.

The Court raised this issue sua sponte, gave permission to the parties to amend the pleadings and send the case back.

The appellee did amend his complaint to raise this issue.

There was no hearing in the District Court in the sense that there was oral evidence or affidavits.

There was an oral argument by the parties, and Judge Jertberg decided against the appellee.

He rejected the issue of the defense of collateral estoppel and he put it that way.

And, of course, we think he was correct.

Now, the facts with relation to that are all in the indictment in criminal judgment of the -- in the earlier 1947 proceeding.

And they appear in the record and that it appears the 2426 and the judgment of 2728.

What happened in 1947 is that there was this indictment returned.

The defendant pleaded guilty to count one of the indictment, count one was a provision that charged him with evading service in the draft by going to Mexico and remaining there until on or about November 1st, 1946.

But it's very important, I think, for the issue of collateral estoppel that the indictment didn't charge that he was a citizen of the United States.

It said as you will see on page 24, Franc Martinez-Mendoza, a male person within the class made subject to Selective Service under the Selective Service and Training.

And the reason why that was said was that the Selective Service and Training Act related not only to citizens of the United States, but to resident aliens.

It covered all citizens and resident aliens, and it was common to phrase indictments in the term -- in the general terms.

And so -- now, what happened -- what happened was that the defendant pleaded guilty --

Justice William O. Douglas: There is no -- would be no collateral estoppel if he was a resident alien.

Mr. Thomas R. Davis: There would be no -- we think there was no collateral estoppel even he were a citizen as I will to try to point out which I think it was, but I think there's -- the whole problem of collateral estoppel arises from, I think, the definition of that principle is very different from res judicata which says that if you have the same cause of action, anything that was or could have been raised in first cause of action is conclusive.

Collateral estoppel is different.

It provides that the parties are bound only by those issues which were actually litigated in the earlier case or were necessarily included in the judgment.

And since clearly here, the causes of actions are different, it's the doctrine of collateral estoppel that applies.

As I will try to show in the next few minutes, neither branch of the doctrine of federal estoppel applies here.

It wouldn't actually put in litigation -- litigation the issue of citizenship because the government's indictment didn't say anything about the citizenship.

He was a male person subject to the Act, and he pleaded guilty, and the judgment is in the same term.

So, the issue of citizenship was never put in litigation.

Justice Felix Frankfurter: He could have put it, couldn't he?

Mr. Thomas R. Davis: He could have put in litigation but he did not, because --

Justice Potter Stewart: He could have, how?

Mr. Thomas R. Davis: He could have put it by pleading not guilty and denying that he was subject to the Act.

Justice Potter Stewart: Denying he was a male person?

Mr. Thomas R. Davis: No, subject to the Act.

Chief Justice Earl Warren: Mr. Davis, when did he leave the country?

Mr. Thomas R. Davis: 1942.

Chief Justice Earl Warren: 1942?

Mr. Thomas R. Davis: 1942.

Chief Justice Earl Warren: And when was the Act amended to apply to aliens?

Mr. Thomas R. Davis: 1944.

Chief Justice Earl Warren: So, at the time he did leave --

Mr. Thomas R. Davis: Yes.

Chief Justice Earl Warren: -- he could have only have applied to a citizen.

Mr. Thomas R. Davis: Or resident aliens.

Chief Justice Earl Warren: No, I thought you said in 1944.

Mr. Thomas R. Davis: Yes but --

Chief Justice Earl Warren: It was amended 1922.

Mr. Thomas R. Davis: Oh, I'm sorry.

You mean the Expatriation Act for the part.

So, the Selective Service Act applied to resident aliens all along.

Chief Justice Earl Warren: Oh, I thought that's --

Mr. Thomas R. Davis: No, I'm sorry --

Chief Justice Earl Warren: -- that's when amended.

Mr. Thomas R. Davis: No, it applies from the beginning to resident aliens.

Chief Justice Earl Warren: Yes.

Mr. Thomas R. Davis: Or this from any time it's relevant to this case.

It applies to resident aliens as well as to citizens.

The issue was not actually put in litigation.

Now, was it necessarily decided by the judgment?

And I think, it's important to say that the rule is generally stated that it has to be clearly necessarily decided not a mere matter of speculation.

The --

Justice Potter Stewart: Before you proceed, I'm a little confused, I guess.

But, how could he have put this question an issue in this criminal case?

Mr. Thomas R. Davis: I think that --

Justice Potter Stewart: If it were a -- if it was a criminal offense whether or not he was a citizen as I understand you.

Mr. Thomas R. Davis: Well, I think that he -- it would have got in much good to put it an issue because he would have been liable even if he were just a resident alien before he went to Mexico.

And -- but if he thought that for other purposes, it was important for him to get a decision in the litigation that he was or was not a citizen, I think he could have put an issue by asking for bill of particulars.

Justice William J. Brennan: But he could no have been a resident alien when he went to --

Mr. Thomas R. Davis: Well, he was a resident.

Justice William J. Brennan: When he went in 1942, there was nothing which stripped him of his American citizenship.

Mr. Thomas R. Davis: No, but he was a resident of the United States.

Justice William J. Brennan: Oh, he was an American citizen in 1942.

Mr. Thomas R. Davis: Well, yes.

What I'm saying to Mr. Justice Stewart is that if he thought it was necessary to get himself a determination in the criminal case as to whether he was a citizen or not, he could have raised that issue.

I don't think it would have done him any good in the criminal case.

Unknown Speaker: This is not at all relevant to his guilt or innocence of the offense.

Mr. Thomas R. Davis: That is the basis why I think that there was no collateral estoppel here.

Justice Felix Frankfurter: Well then, is that quite so, he might have attacked the -- the mere fact that he was in the United States doesn't prove he was a resident alien.

Mr. Thomas R. Davis: That's true.

I think as a matter of fact, he was.

Justice Felix Frankfurter: That's isn't the question.

Mr. Thomas R. Davis: Yes.

Justice Felix Frankfurter: But lawyers -- wouldn't they do things that are not so.

Because --

Mr. Thomas R. Davis: Yes.

Justice Felix Frankfurter: -- they think they're not so.

Mr. Thomas R. Davis: Yes, you are quite --

Justice Felix Frankfurter: They might challenge it on both grounds.

Mr. Thomas R. Davis: That's right.

I think as a matter of fact, it was done no good because the fact --

Justice Felix Frankfurter: That isn't the question.

Mr. Thomas R. Davis: Yes.

He could have.

Justice William O. Douglas: Would a resident alien be relieved from responsibility if he ceased to be a resident?

Mr. Thomas R. Davis: But the whole gist of this offense occurred in 1942.

That's the gist of the offense when he was clearly a resident alien or fairly a citizen.

Before the Expatriation Act occur for the past in September 27th, 1944.

That's the gist of the offense.

That's the gist of count one as shown by the other two counts which the District Judge in the criminal case thought cast light on the first count.

Justice William O. Douglas: I just assumed that an alien who left the country who had been a resident would cease to be a resident -- of the resident on leaving.

Mr. Thomas R. Davis: Not necessarily at all.

This Court has held that in the Chew against Colding case that a man who was a resident and was debarred at the port from coming back was still a resident of the United States because he had lived here so long, and there was no showing that he had given up his residence, so that -- it isn't true at all, I think, Mr. Justice.

Justice William O. Douglas: Was there any facts in this case to indicate that if he had the -- treated as an alien, that he still have the purpose to maintain his residence here?

Mr. Thomas R. Davis: There were no facts because there was a -- this was a plea of guilty.

But, the point I'm trying to make, Mr. Justice, is that he would have been guilty of this offense even if he gave up his residence when he went abroad because he was at the time he was in the United States subject to the draft as a citizen or as a resident alien, and that by going abroad, he did not absolve himself from the criminal offense which had already been committed.

I should -- some question has been raised by the appellee as to the use of the language in the indictment and that they remain until on or about November 1946.

I would like to say it was -- we think that those words were unnecessary for the indictment.

There were surplusage, but if they hadn't been there if it just said, and they remain, the indictment would have been a good indictment.

I will also that we do not think that we, the government, would have been able to rely upon this criminal conviction as res judicata for the period up to November 1st, 1946, if the tables had been turned.

That is I don't think that we would have been able to rely upon this indictment and the conviction as showing that this man had gone abroad for the purpose of evading the draft, and remain there up to and until November 1st, 1946.

My time is up.

Chief Justice Earl Warren: Mr. Davis.

Argument of Bruce J. Terris

Mr. Bruce J. Terris: Mr. Chief Justice, if the Court please.

I find myself in the very peculiar position of barely supporting my opponent with whom I have contested this issue so long on the first question before us, because I join with him in asserting that this properly should have been a one-judge court.

In addition to the contentions ably advanced by Mr. Davis, may I also inquire whether the true task is not what in excessive zeal, I may have included in the prayer of the complaint, but rather what the trial judge in his considered judgment put in his judgment.

And, in this particular case as it happens, some of what I'm saying is ex cathedra now, the record could easily be augmented to show what I'm about to say.

I submitted a proposed judgment which included all of the injunctive relief which I thought was proper in the case.

The United States attorney objected, citing a case in our own Ninth Circuit, which I think is relevant here, although I'm not sure I can pronounce it but Ng Kwock Gee versus Dulles 221 F.2d 942.

And the gist of that case was at the Court, in similar circumstances, rejected the attempt of counsel to obtain injunctive relief.

And so in our case, Judge Jertberg wrote to us, and said that he thought the United States Attorney was correct, and that I have been excessively zealous perhaps in the drafting of my proposed judgment, and in his own office, drafted a modified judgment in which he was very careful to omit any reference whatever until injunctive relief.

Justice John M. Harlan: Could I have the page number of that unpronounceable case?

Mr. Bruce J. Terris: Yes, Your Honor.

I have it as 221 F.2d 942.

Justice John M. Harlan: 942 thank you.

Unknown Speaker: I take it, you have considered and rejected, that you disagree with the Solicitor General, and then you disagree with the right and you could have another goal, wouldn't you?

Mr. Bruce J. Terris: Your Honor, I have considered that.

We're here for the --

Unknown Speaker: You have not, I guess.

Mr. Bruce J. Terris: We're here for the third time.

I know that the Court has heard the constitutional contentions which are involved here time and time again.

I earnestly assert that it is time now to reach the question.

By saying that though --

Justice William J. Brennan: These were really a three-judge case.

I gather we couldn't read it.

There's no jurisdiction in the judgment below if this should have been a three-judge court.

Mr. Bruce J. Terris: That might be, Your Honor.

Justice William J. Brennan: That might be?

It would be, wouldn't it?

Mr. Bruce J. Terris: In another words, the Court would not have jurisdiction if we had had three-judge.

Justice William J. Brennan: We have a jurisdiction to say that the lower court had no jurisdiction, and we have to say it had no jurisdiction.

Mr. Bruce J. Terris: It could have been a three-judge court.

Justice Felix Frankfurter: Anyhow, you don't want to embrace that opportunity.

Mr. Bruce J. Terris: I do not, Your Honor.

Justice William J. Brennan: I'm not surprised.

Mr. Bruce J. Terris: This procedure of a Circuit Court of Appeals in this case rejecting the attempt of counsel to obtain more relief than the action entitled them to happen in Hall versus Welch.

I'm having to cite orally, because I think Your Honor -- Your Honors understand that I received a very late communication concerning this question, just about a day before I left from California, Hall versus Welch 185 F.2d 525.

I thoroughly agree with Mr. Davis that the assertion of that the word “injunction” should somehow be enlarged by judicial construction to include an action for declaratory relief simply because derivatively or contingently, there may also be an impact on federal officers.

I think that assertion is entirely correct and I concur with them in it.

I have looked at the F.2d reports on Trop and Perez, and it does not appear clearly whether injunctive relief was sought, but it does seem quite clear that a single-judge sat in both cases.

And I would urge again that what is really determinative here is not what counsel sought, but what the Court gave.

Unknown Speaker: Do you think that the stipulation appearing particularly at record 35 has any significance while your stipulation issue the fact would apply within the issue that the law would apply?

Mr. Bruce J. Terris: Well, I'm certainly bound by it, Your Honor, yes.

Unknown Speaker: Well, I don't think it's about an injunction.

Mr. Bruce J. Terris: No, it doesn't.

Thank you.

Justice William J. Brennan: You did the (Inaudible) that reviewed the statute if it reaches the case thoroughly, reaches it by merely or even merely with your application for an injunction.

That's the way the statute reads from the fact what the judge gave or anything else to which it's stipulated has nothing to do with it.

Mr. Bruce J. Terris: Well, Your Honor, we could think of it this way, in terms of different counts of the same complaint.

A court can reasonably assume jurisdiction of a particular count and try it and validly try it and reject taking jurisdiction over another count and there would be no essential difference between that and what has happened here.

I know that the hour is late.

I believe that the constitutional issues have been exhaustedly briefed, but I would like to speak on the other nonconstitutional issue which has emerged from the Court sua sponte, and that is this question of collateral estoppel.

The Solicitor General has, in my opinion, avoided the essential question here with almost unbelievable deafness.

There is a basic fact before the Court which is agreed upon and stipulated, too.

And that is, that in 1944, when this Section 401 (j) was passed, Mendoza was a nonresident alien.

He was in Mexico, because he had gone there in 1942.

Now, when Judge Yankwich of our Southern District subsequently tried him and found him guilty, he found him guilty of a continuing offense not from 1942 to 1944 on this statute would have made him a nonresident alien, and thus, not open to or rather available for Selective Service.

But Judge Jertberg found him guilty of a continuing offense from 1942 until 1946.

And I assert in closing if the Court please, it's says --

Justice Potter Stewart: It's a guilty plea, wasn't it?

Mr. Bruce J. Terris: Yes, it was, Your Honor.

He pleaded guilty to it, and if that constitutes an admission, I can't imagine in what context it constitutes an admission.

Because the judgment of conviction made after all of the proceedings where true, reincorporated the same finding, is it hypertechnical?

Is this is a piece of logic that has no real flesh and blood significance?

Judge Jertberg had to decide the extent of punishment for a man who had committed an offense over a given period of time.

If it had been two years instead of four years, I urge that it is a reasonable and proper inference that he would have taken a lesser period of time into consideration.

Print this transcript Transcript: 

Argument of Thomas R. Davis

Chief Justice Earl Warren: -- Kennedy, Attorney General of the United States, versus Francisco Mendoza-Martinez.

Mr. Davis, you may continue with your argument.

Mr. Thomas R. Davis: Thank you Your Honor.

Justice William J. Brennan: Mr. Davis, before you begin, I think you told us yesterday that you submitted to Judge Jertberg, a court order which included the provisions for injunctive relief and that he refused to enter it, but under the order he did.

Did the Government make any objection to your order?

Mr. Thomas R. Davis: Yes.

Judge Jertberg did that because the Government objected.

Justice William J. Brennan: And what was the Government's objection?

Mr. Thomas R. Davis: The Government objected it was beyond the scope of the action and if the Court please, there is additional reason for the Government's having objected which I wanted to bring out exactly at this time.

Under the general prodding I must say of Mr. Justice Whittaker, I should point out that we went through a pretrial procedure in this case pursuant to Rule 16 of the Federal Rules of Civil Procedure and as I think Mr. Justice Brennan is well aware, that Rule explicitly provides for amending the pleadings to correct earlier errors and as does Rule 15 of course also provides for amendment.

But what is important about Rule 15 which relates specifically to amendment is that it provides that any amendment which is accomplished relates back to the original pleading.

In other words, the Rule says in just about so many words, the pleading as it is amended shall be deemed a pleading which was originally before the court so that the excessive zeal which I exhibited in drawing this prayer was cured by virtue of the explicit terms of Rule 15.

And on that ground, in addition to the inherent ground that it was beyond the scope of the action per se, but on the ground of the pretrial stipulation as well, the Government rightly objected to any additional ancillary relief being granted in Judge Jertberg's order, and Judge Jertberg correctly refused me the additional ancillary relief which I sought.

Therefore Your Honor, I submit that under Rules 15 and 16, the Court correctly proceeded and what is more important, the correction that it made and in -- contained in its final judgment was a correction which by virtue of Rule 15 related back to the original pleading.

I have returned again today to take up the additional time of the Court because we did not reach at all the -- neither Mr. Davis nor myself reached at all the ultimate question, the constitutional question and in any time I take up, I realize that it has been many times argued here and argued by men of far greater experience and wisdom than I have.

Nonetheless, perhaps the Mendoza case is destined to be the bellwether case and it would be improper for me not at least to make some brief contentions on the basic question of constitutionality.

Without rehearsing the briefs, I would like to invite the Court's attention to one specific question.

It is possible on one theory or another with a very sharp knife to divide Trop versus Dulles from Mendoza.

But there is one basis on which it cannot be divided and that is the question of whether it would be possible to say that in Mendoza, there is no punishment involved whereas in Trop, 401 (g), there is punishment involved.

That I submit is an indefensible distinction.

Every bit of the legislative history of this statute originating as it did with the Attorney General and proceeding through legislative argument in the citations that we have given to the Court shows that it is plainly coercive statute.

And this I submit is a pivotal question because if it is punitive, if Section 401 (j) is a punitive statute, I submit that it plainly violates procedural due process of law.

And this is of crucial importance because of the often repeated inclination or in the determination of this Court not to limit or affect the power of Congress if it can conceivably be avoided.

Justice Felix Frankfurter: Let me ask you this.

Mr. Thomas R. Davis: Yes sir.

Justice Felix Frankfurter: Could Congress make it an offense punishable heavily, say, five years, a sentence of five years, a mandatory sentence for five years for leaving the country to escape the draft?

Mr. Thomas R. Davis: It could've hung him Your Honor.

Justice Felix Frankfurter: It could've hung him?

Mr. Thomas R. Davis: Yes.

Justice Felix Frankfurter: Wouldn't that -- that wouldn't be coercive?

Mr. Thomas R. Davis: I think it is extremely coercive but it --

Justice Felix Frankfurter: All I'm suggesting is that when you use words like coercive and slide from coercive to punitive, and slide from punitive to the constitution, you're doing a lot of sliding, more than three bases I think.

Mr. Thomas R. Davis: I didn't mean to slide at all, I meant them as a --

Justice Felix Frankfurter: I didn't say you're meant to slide.

I'm saying you first used the word coercive and in the next sentence you used the word punitive, in the next sentence you've said it's unconstitutional.

Mr. Thomas R. Davis: May I then use the word penal and --

Justice Felix Frankfurter: Well, you (Voice Overlap) --

Mr. Thomas R. Davis: -- suggest that that reaches the question --

Justice Felix Frankfurter: I'm just indicating that if what you say goes and Congress couldn't impose a sentence of five years, so you say hang him.

Mr. Thomas R. Davis: No.

Your Honor, I'm not suggesting that at all because I'm suggesting indeed that they could've hung him. But they couldn't have hung him on the statute like 401 (j) because there is no criminal procedure provided for.

It --

Justice Felix Frankfurter: I'm not suggesting it could.

I'm not -- I've expressed no opinion on this statute.

I'm merely saying, you throw around words like coercive and punitive doesn't help me in the slightest to analyze the problem.

Mr. Thomas R. Davis: I understand Your Honor and for that reason, I adopt and henceforth intend to use the word penal hoping that it is as unambiguous a word as I could select.

I submit that this is --

Justice Felix Frankfurter: The Constitution doesn't say Congress couldn't make it -- couldn't have -- affect penal consequences for leaving the country to obey this, does it?

Mr. Thomas R. Davis: It -- Your Honor, it could not impose a penal sanction like 401 (j) because 401 (j) is procedurally defective aside from the power.

Now, that's another question and I'm aware of Your Honor's views on the question of whether Congress ultimately has that power.

What I'm trying to reach now is the question of whether Congress went about it right.

Justice Felix Frankfurter: Alright. I understand that.

Mr. Thomas R. Davis: And I submit that 401 (j) --

Justice Felix Frankfurter: (Voice Overlap) -- but using adjectives -- using adjectives, it doesn't settle complicated constitutional questions.

Mr. Thomas R. Davis: No Your Honor and I hope that the selection of the word penal eradicates any ambiguity that might otherwise have existed.

I submit that this if the statute in Trop is penal, this is a penal statute.

If it is a penal statute, it is violative of procedural due process of law because it provides for loss of citizenship instantaneously per se, a United States attorney may ordain if this happened and the only remedy in effect is to come in and say, “Alright.

You say I'm an alien.

I'm pleading as an alien but you're wrong, I'm a citizen.”

It's a civil proceeding in declaratory relief.

It is not a criminal proceeding which guarantees to the defendant those protections which are fundamental to due process of law, to procedural due process of law.

Unknown Speaker: (Inaudible)

Mr. Thomas R. Davis: Yes Your Honor and those other protections which are elementary in which I don't think the Court wants me to rehearse here which are necessary in a criminal proceeding.

Justice Potter Stewart: Why wouldn't that have been equally true in Perez against Brownell?

Mr. Thomas R. Davis: Your Honor, I would've thought that it was of course, to all of us who have labored on this side of the wall thought so.

But I think that there is a valid distinction to be made now that Perez has been decided in that this Court has held that there is vested in the Government an inherent right by virtue of its sovereignty or by virtue of the foreign affairs power, it doesn't really matter very much which you say it is, but in any event, the Government has the power to separate its citizens from its non-citizens.

To set out certain acts which -- whether the person subjectively intended it or not, nonetheless are of such a character that must necessarily result in a divestment of their citizenship.

That is the Acts have a rational nexus to the abandonment of citizenship.

In a sense, Perez is not divorced from Perkins versus Elg in the older cases which said in effect that expatriation is the voluntary relinquishment of nationality.

Perez says as Savorgnan said that the standard must be objective, the petitioner will not be hurt to come into court and say, “Well, I didn't really mean to do that” and there's a lot of sound ground for that Mr. Justice Stewart because suppose the Act were a voluntary signing of a pledge of allegiance to the British flag and then the petitioner later came in and said, “Well, I didn't know what I was doing,” the Government is entitled to count on certain acts as manifesting a desire to change allegiance.

Justice Potter Stewart: It seems to me that everything you'd said is of extraordinary applicability to this case.

The highest duty of citizenship is to serve the nation, the United States in time of war and somebody who flees to another country to evade that obligation is an objective matter certainly I should think under the very criteria that you've been discussing to be considered somebody who's abandoned his citizenship.

Mr. Thomas R. Davis: Well --

Justice Potter Stewart: Surely as much as Perez by simply voting in a Mexican election.

Mr. Thomas R. Davis: Your Honor, I don't think that in Perez the petitioner was being punished.

He was found to have --

Justice Potter Stewart: The same sanction was imposed in that case as the Government would impose --

Mr. Thomas R. Davis: Oh, yes, indeed.

Justice Potter Stewart: -- (Voice Overlap) loss of citizenship.

Mr. Thomas R. Davis: True.

Justice Potter Stewart: And if it wasn't punishment there, why is it punishment here?

Mr. Thomas R. Davis: Without being discourteous, I'd have to turn the question around and say how could it be non-punitive here if it -- if it was punitive in Trop which four members of the Court explicitly held it to be and I think inevitably one must derive from Mr. Justice Brennan's concurring opinion, the same result that it was nakedly a punitive statute, but I don't mean to beg the question Your Honor.

I am trying to distinguish Perez and say that although those of us who fall on the other side of this urged otherwise, nonetheless it can now still be said that Perez is a regulated statute because the Government has got to be able to go out into this world and say of its citizens or alleged citizens abroad, these are our citizens.

These are the people entitled to the protection of the flag and these over here are not citizens and on the basis of that power, which seems to me stated that way to be an inherent attribute of sovereignty if it is not part of the foreign affairs powers, on the basis of that, Perez can be justified as a non-penal statute.

Justice John M. Harlan: Do you think it's of any significance that Mendoza was a dual national?

Mr. Thomas R. Davis: Your Honor I think it is of no significance at all because the record is utterly devoid of the slightest indication that Mendoza ever asked to be a Mexican citizen.

The British Empire tomorrow, the Parliament can adjudicate everybody in this room, a subject to the British Crown if it so desires.

We have no control over that Act anymore than Mendoza had control over what the Mexican Constitution said about the nature of his birth which happened to be that he was born of persons who were of Mexican nationality.

Now, there's more to it than that.

If we were to make such a distinction in this case, we would be creating a separate class of citizens, a set of citizens who were especially subject to a law.

If this is the pivotal point --

Justice John M. Harlan: I'm not suggesting that there is, but I was just asking the question.

Mr. Thomas R. Davis: Your Honor, I'm suggesting that if that were in the mind of the Court, the Court should consider that it would be creating improperly a special second class of citizens who would be subject to this statute where those who had not been ordained to be citizens of the British Empire or the Republic of Mexico or whatever, those who had not happened to have fallen into that category would be relieved from the impact of the statute.

Justice Charles E. Whittaker: Do you think it would not have a bearing upon the question, Eighth Amendment, assuming this is a penalty?

Mr. Thomas R. Davis: No.

Your Honor, I would submit this and this was a matter which was specially considered this time on remand.

The results of that consideration appear in a very careful language of Judge Jertberg in the specific finding on the subject in which he finds in essence that the petitioner is a citizen of Mexico according to the laws and Constitution of Mexico.

What is citizenship in Mexico if the Court please?

What is citizenship in Bulgaria or in Hungary or in Russia or wherever?

Citizenship here, we understand and certainly when the Court has written the final chapter of this series of cases, we're going to know more about what citizenship is, but we have a pretty good idea that it means basic protections, basic protections of American rights.

But, when we say that a man is a citizen of Mexico, he may be persona non grata for any number of reasons which are beyond the knowledge or can of this Court.

Citizenship when it's extended to a foreign land means less than nothing.

It can't equally be cruel and unusual punishment to send for example a man to Bulgaria behind the iron curtain, even though according to the Constitution of Bulgaria, he's a citizen of it.

To make the distinction upon that basis Your Honor is to presuppose that citizenship in each foreign land is what citizenship is here and I don't think the Court knows that.

In fact, I think the Court more than that can take judicial notice of the fact that such is very, very far from the case.

He will be set adrift just as surely as well as the Court because Mexico may declare him for any number of its own reasons to be persona non grata.

And I can inform the Court for the record, if the Court will indulge me that long ago we received a letter from the Mexican consul on our inquiry that he was not welcome in Mexico because he had insisted on relying on his American citizenship.

It can't be before the Court.

A Mexican consul can't speak for the Mexican Government and I don't think that the Secretary of State or whoever appropriate officer might make such a statement and Mexico would make it but it has been made.

I say this informally for the Court's information.

Citizen or not, he is not welcome.

Justice Charles E. Whittaker: Does not Congress here have said that the very Act of leaving the country to avoid military service in time of war or national emergency is so inconsistent with allegiance as to constitute a voluntary renouncement of American allegiance?

Mr. Thomas R. Davis: Congress could've said it but I think Congress would've been --

Justice Charles E. Whittaker: Could that not have been its basis for saying what it did in 401 (j)?

Mr. Thomas R. Davis: Well, first of all, Mr. Justice Whittaker, we know that in fact it was not, that this emerged from the Attorney General's office as an additional penal sanction for the purpose of assisting United States Attorneys and incidentally the amicus curiae brief of the American Civil Liberties Union brilliantly develops this history of the statute.

We know that in fact it wasn't, but even if we didn't know where the statute came from or what its source was and how it was administered, nonetheless, I would submit that Congress, and I say this naturally with deference and respect, would have been indulging in a sophistry.

A tax evader or a bank robber who goes across the border is doing the same thing to avoid this kind of sanction and the third answer Your Honor is how can we say this now of Mendoza when the Court refused to say it in Trop.

Here was a man who had taken his oath, who was in military service, who was in a combat zone and who then deserted and the Court refused to uphold the constitutionality there.

Now, how can we turn to a man who has not yet taken that oath and I hope everything I say here carries with it no implied suggestion that this was not a seriously criminal act, I have -- I said this earlier in 1959 to Mr. Justice Frankfurter in response to his questioning, certainly this is a dastardly despicable reprehensible criminal act.

Those of us who are defending this and defending it so hard or doing so because we believe that it's an infringement upon a constitutional right, but getting back into my third point, Mr. Justice Whittaker we could not say that Congress could have made such a statute in Mendoza and upholding on that basis after this Court has held that Congress could not have done it in Trop.

Because of course in Trop they didn't contain that language of deemed to have voluntary relinquished his citizenship, but hypothesizing, we could hypothesize in Trop, but this the Court refused to do.

And in a five to four decision, it struck down the constitutionality of the deserter who had taken the oath of office.

To make this distinction now, if the Court please, without deluding my previous contentions would be to reverse Trop.

I'm virtually at the end of my time and I'd like to reach entirely across for just a moment all of the considerations which are so magnificently set forth in the amicus curiae brief of the American Civil Liberties Union, I couldn't have written that brief if I have worked on it for 50 years and I'm deeply grateful that it was filed on behalf of my client, but reaching across all of the things that have been raised, I would like to ask this Court for a moment to consider the question of ultimate power.

The Chief Justice speaking in Trop expressed the feeling that this question was perhaps behind us now because of Perez, that is to say that it is now behind us whether Congress in certain circumstances has the power to take away citizenship.

And of course, to the extent that Perez does that, I'm not entitled to speak on the subject at this point, but if I was correct in my earlier assertions that Perez is a regulated statute that is that there was a proper exercise of sovereignty to allow the United States to separate the sheep from the goats, there remains before this Court the question of whether Congress per se as a penal sanction has the power under any circumstances no matter how the statute is drafted to take away citizenship and I submit to the Court that it would be proper here to reach that question and to hold that Congress does not have that power.

And this is why I say that.

Citizenship is the status which allows the governed to contract with the Government.

Citizenship was explicitly recognized in our sister French Revolution as being the status which all of the freed people attained and the status by which they entered into their -- to the great contract with their new government.

Here, it was so assumed to be the case because of the tradition of British subjects that we never said it.

And I submit that it needs saying now that the Court should hold as inviolable the status of citizenship because it is the status by which the governed contract to enter into government.

That is to say it is the source from which the Constitution arose and if this Court should hold that Congress may not infringe upon that status because it is infringing upon the contractual status of the other party, of the people.

Justice Charles E. Whittaker: Deserving all of these of course the right of the citizen to renounce?

Mr. Thomas R. Davis: Yes Your Honor, always.

Thank you.

Chief Justice Earl Warren: Mr. Davis.

Mr. Thomas R. Davis: My time has expired Mr. --

Chief Justice Earl Warren: Oh, your time has expired.

Print this transcript Transcript: 

Argument of Leonard B. Boudin

Chief Justice Earl Warren: Dean Rusk, Secretary of State, Appellant, versus Joseph Henry Cort.

Mr. Leonard B. Boudin: Mr. Chief Justice and Justices of the Court.

Chief Justice Earl Warren: Mr. Boudin.

Mr. Leonard B. Boudin: In considering the government's basic argument that this is a statute, which has a relationship to the far relations power of the government and that it does not imposed any punishment, one might be well to consider the Mr. Justice Frankfurter's remarks in his reflections on the reading of statutes, that in considering the construction of a statute, we might begin by reading it.

And if one does read Section 21, of the Act of March 3, 1865, the progenitor of both the draft desertion, the draft evasions and the desertion provision, one sees that they have a common origin, a common purpose and common sanctions.

In fact, Section 21 contains in the very same sentence, not merely the same section, the provisions with respect to draft evasion and desertion.

Now the statute itself, which again we must look at, is a statute which provides, which is described as an act to amend the several acts herein after passed, to provide for the enrolling and calling out of the national forces and for other purposes, nothing to do with foreign relations.

It is composed of 27 sections, all of which deal with different aspects of running an army and the question --

Unknown Speaker: [Inaudible]

Mr. Leonard B. Boudin: I think not Your Honor.

I think running an army had something to do with the question that the statute dealt with.

In short it is conceivable that a statute could contain the provisions relating to foreign relations, even though when army measure, but this particular one, I answer Your Honor in this way, this particular statute dealt only with the question of how to run the economy internally.

So --

Unknown Speaker: [Inaudible]

Mr. Leonard B. Boudin: No if there were any part of the statute that touched on foreign relations, I would say it would not be necessary too.

It is because each of the sections taken separately deals with a different aspect of the army, such as.

Justice Potter Stewart: Which -- you are talking about the 1865?

Mr. Leonard B. Boudin: The 1865 statute, exactly, and Your Honors will see and I think the briefs and other cases have indicated that the history isn't unbroken one except at one point where they left out the draft desertion provisions, the draft evasion provisions in 1940.

Justice Potter Stewart: Between 1940 and 1944.

Mr. Leonard B. Boudin: Exactly Your Honor.

Now as I said Mr. Justice Goldberg, if you take the sections, one of them will deal for example with the question of bounties, another will deal with the question of soldier's pay, the third with a prohibition against allowing insane people to be inducted in the army.

Nothing at all suggesting the government's present argument, and somehow rather in 1865 there was a conception of what our relations were going to be with other countries.

Now I will come to the government's arguments on that point in greater detail.

Now the particular section of course that we're dealing with here has three subtitles, two of them are significant; penalty for desertion, et cetera; and leaving the country to avoid the draft to incur like penalty.

Now the debates on the subject, which I don't think have been discussed before this Court before, likewise indicate a concern for enrolling in army and not a concern for what will happen if somebody leaves the country.

The Bill itself was proposed by Mr. Schenck, Chairman of the Military Committee, Representative from Ohio and Mr. Schenck's remarks, it was an emergency Bill I may say, in which they had very short debate, and which people who opposed the Bill were called traitors, Mr. Schenck stated, “Here is a penalty that is lawful, wise, proper and it should be added to the other lawful penalties that now exists against deserters.”

And as the Bill was originally introduced it merely referred to people leaving the country, but Congressman Wilson of Iowa, which I gather was a state with hills in it, moved to amend the Bill by providing that anybody who left the district, not merely the country, should be covered by this statute and as he said, “In my own state, and I presume it is so in all the states, as soon as that notice is given, that is a notice of induction, many persons at once prepare to leave and do leave, going into the territories and among the mountains and mines to avoid the services of a country in the event that they are being drafted.”

Well, mountains and mines in Iowa and the relating area is certainly a far cry from Mexico or Czechoslovakia or England, which the government is emphasizing in the present time.

Justice Potter Stewart: That was quite a different statute that's what you're telling us.

Mr. Leonard B. Boudin: That was a statute -- but that is exactly the same statute that we have today, except we have eliminated the words the district, that's merely a formulation of words.

Justice Potter Stewart: Well it seems to me if I may suggest so and suggest to you that there is quite a good deal of difference between leaving the district and leaving this nation.

Mr. Leonard B. Boudin: If they were Your Honor, any reference at all in any of the debates that followed to indicate that this wasn't merely a streamlining of the statute, then I would have to recognize some weight.

But there isn't a word in the period from 1865 to 1952 that suggests a different policy, and as a matter of fact the government itself in its brief in Gonzales against Landon, says that the purposes of the current statute are purposes of the 1865 statute.

Now I would take them if they were there, as well as their construction which I rely on in another connection.

In the debate I may say in 1865 and a debate that followed, all the speakers emphasize the fact that this was a question of punishing people.

No suggestion made of any effect on foreign affairs.

In 1912 I think the most significant report is a report number 335 at the 62nd Congress, which is a report from the Committee on Naval Affairs, not foreign relations, in which they recommended that the statute be amended to be limited only to peace time.

And that there again the Chairman of the Committee pointed out, in using the words punishment and penalties, and I may say, cited from Winthrop's Military Law and Precedents in a letter from the Secretary of the Navy, in which Winthrop pointed out that this was a war measure.

No again, no suggestion that it would have had anything to do with foreign relations.

In 1940, the Cabinet Committee's report was considered by the Congress and Your Honors will recall that the Cabinet Committee included on it the Secretary of State.

Justice Hugo L. Black: May I ask you this --

Mr. Leonard B. Boudin: Please sir.

Justice Hugo L. Black: I might interrupt you [Inaudible].

I don't quite understand the point of your argument.

If -- I would say that if the Federal Government has the power to do this under any one of the clauses of the Constitution, then it had to refer to it.

I don't quite get that.

I don't see why it would have to refer to it?

It might think it was acting under one, was acting under another like go on and indict.

What is the -- why do you use this argument and what you want to prove by it?

Mr. Leonard B. Boudin: I have nothing clear enough I regret Your Honor.

I was not adjusting myself to the question of power, but there is a question of the purpose of the statute.

The government says that the 1865 statute was passed because the government was afraid that it might have some -- the situation might have some effect on foreign relations.

I referred to the history and the words of the 1865 statute to show that the foreign relations concept is not based on reality.

This --

Justice Hugo L. Black: Well suppose -- what I get at and what I don't understand is this, whether they intended it to be based on that or not, if can be based on it what's wrong with it?

Mr. Leonard B. Boudin: Well I would suggest --

Justice Hugo L. Black: On that ground I don't think that I would draft?

Mr. Leonard B. Boudin: We're not talking about power.

Well if the government has, I was addressing myself Your Honor to the question of the purpose of the statute and not the power.

Now Your Honor is suggesting that if there were a purpose it didn't exist, that the government might produce it now to justify the statute.

Justice Hugo L. Black: No, I'm suggesting, quite different suggesting that if Congress has the power to do this under any clause of the Constitution, I wouldn't think statute could be invalidated by what some individual Congressman or leader or spokesmen of the committee or anything else said was his purpose.

If it comes within the authorized power of Congress, why do we have to bother about what they thought they wanted to do it for?

Mr. Leonard B. Boudin: Well of course this is not a single, I'm only addressing myself to one aspect Your Honors, it is not a single Congressman, it is a full sweep of the Congress.

Justice Hugo L. Black: Suppose this is all out, and put in the committee and they said our purpose is this.

Mr. Leonard B. Boudin: I would take the position Your Honor passing the broader question of power, which Your Honor has reserved, that if the Congress passes a statute intending to aid the war power, it is not for the Court, most respectfully or for the government to suggest that this provision, this statute passed the aid of the war power can now be translated and is justified on the basis of foreign relations power.

It is the Congress' intention in passing a statute that I would say would be determine whether or not the exercise of power is proper.

Congress cannot pass a statute under the intended to aid interstate commerce suggests and then argue -- then have it argued here that in fact it was intended to aid foreign relations, so I've moved too close.

I think the government is bound in considering the meaning of the statute by the intention of those who drafted it.

Justice Hugo L. Black: Well considering the meaning -- but considering the powe.

Mr. Leonard B. Boudin: Well and considering I haven't address myself yet to the power.

I merely addressed myself to the question of whether or not this argument of the government, that foreign relations was involved, was really involved.

I come to the question of power next.

I have not addressed myself to the question of power, but the question of the purpose of the statute in answer to the government's argument that the statue was intended somehow rather to relate to foreign relations.

I'm suggesting it was only intended --

Justice Hugo L. Black: [Inaudible] As I understand it, I'm not sure that I agree with it and I may, I'm not sure, your argument as I understand it, so as Congress -- so we assume that [Inaudible] is all we want to act under the war power, contribution to the war power.

They then come in and they ask you through the [Inaudible] and ask you to enforce the act on the basis that it helped in foreign relations; that, that couldn't be done.

Mr. Leonard B. Boudin: I first would say that could not be done, yes Your Honor.

Now.

Justice John M. Harlan: Supposing Congress has put in a recital on something that the committee reports, simply saying that citizens who don't respond to their duty to serve in the army in time of war are not worthy of being citizens and we don't want them as citizens, supposing they had said that.

Mr. Leonard B. Boudin: I would -- that that was not be.

Justice John M. Harlan: What's that?

Mr. Leonard B. Boudin: I would say that, that is not within the power of Congress.

Justice John M. Harlan: Well then the other material question -- your argument is that there is no power to do this.

We have to attribute given power, we have to attribute to Congress, whether it said so or not, a purpose to exercise power that -- by hypothesis we are assuming now, it has and attribute a legitimate exercise that power to whatever it says

Mr. Leonard B. Boudin: Well.

Justice John M. Harlan: Or whatever it fails to say.

Mr. Leonard B. Boudin: I don't think one can say that a statute that was passed and that Congress says was passed for the purpose of aiding the war power, can now be justified on the ground that it might conceivably have some relationship to the foreign relations power.

Now this is quite aside from the question of whether Congress has the power at all of course.

In short I think that when one comes before the Court to argue that a statute is justified on the one power or another, one doesn't pluck from the wings a power which one can find as an advocate on the Constitution.

It has to have some relations to the reality and if in fact this statute didn't have any relationship to the reality of foreign relations, in 1865 or 1912, the government can't simply find the foreign relations power and say it might have some relationship to it.

Justice John M. Harlan: Well I suggest what Mr. Justice Goldberg said might be borne in mind that I should think the foreign relations was time of emergency or time of war, whether you call it war power or foreign relations power, two things are absolutely inseparable I think, under the right conditions.

Mr. Leonard B. Boudin: I do not think that they are inseparable and I don't think that Congress felt that they are inseparable in considering this.

There is not a line in any of the legislative history from 1865 to date which suggests that the Congress was concerned about foreign relations in any of these statutes.

However, I bear in mind Your Honor's point.

Justice William O. Douglas: You are not really addressing yourself to the meaning of the statute, right?

Mr. Leonard B. Boudin: No I'm addressing myself to --

Justice Potter Stewart: You said the meaning of the statute.

Mr. Leonard B. Boudin: With purpose.

Justice Potter Stewart: The statute is unambiguous as far as its meaning goes, is it not?

Mr. Leonard B. Boudin: Yes it is Your Honor.

Now the government, I will simply say without pressing the point further that the government refers to various problems arising on the war of 1812 and the problems for the North German States.

Those problems were quite different from those which led to the impact of 1865 and a careful reading of the remarks of the State Department papers will show those problems related to the question of American citizens who went aboard and who were pressed into the armies of the North German states in the 1850's and 1860's or in 1812 of course to our seamen were being pressed.

They had nothing whatsoever to do with the question, what would happen when people who were -- our draft delinquents went aboard.

And I will not take the time of the Court to refer the Court who I think has been misstated by commentators like Saing who was relied upon by the government, where they attempt to prove a connection between these problems with the North German states and the Act of 1865.

Those North German state problems were all dealt with in the Act of 1868, the Expatriation Act and in our treaties in the 1870s with the North German states, but they have no connection, except that they happen to be in approximately the same period with the statute with which we're now dealing.

Now the government suggests that some how or other the possibility that there is flight aboard here or the fact there is flight aboard or in the case of Dr. Cort it wasn't one who flight aboard, it was remaining aboard, distinguishes this case from Trop.

I have only to refer the Court to the government's brief in Perez against Brownell, which is quoted at page 31 of my brief, where the Court said, in talking about the desertion and the draft evasion sections, “the reasons which sustained,” where the government said pardon me, “which sustained Section 401(j) also apply to the cognate Section 401(g).

Desertion in war time like draft evasion is a repudiation of the highest obligation of citizenship and involves kindred considerations.

Subsection (g) does different from Subsection (j) in that it will meet the requirement of flight from this country or foreign residence, but the absence of this factor, said the government, does is not swing balance against constitutionality” and we agree of course with that position, at least that part, not the earlier part.

Now there is a very real difference I may suggest between this case and Perez.

It's true that in both cases and in numerous other cases people happen geographically to have been aboard, but geography is not the essence of Perez.

As Your Honors will recall from the detailed opinion by Mr. Justice Frankfurter, it was not that Perez was in a foreign country.

It was what Perez did in that foreign country that the majority of this Court regarded as having a bearing upon foreign relations.

And the opinion of Mr. Justice Frankfurter, although very respectfully we have differed from it on our brief here, is very precise, that Perez in remaining aboard and in voting aboard was actively doing something which was an interference with another country's internal affairs, although I think he had a right to as a dual national, and that, that interference might be attributed to the United States, that the United States would be regarded as the principal and Perez as the agent.

Well, nobody would suggest in these cases that Mendoza-Martinez was the agent of the United States in remaining in Mexico or Dr. Cort in remaining aboard, in defiance as the government claims, of their obligations under the Selective Service Act.

And it is -- if we take the full meaning of Perez, the attribution to the United States Government of something, which might lead another government to resent it then of course this case is clearly distinguishable.

Now the government's theory of the delinquency of obligations, which is the essence of its sovereignty point, as various members of Court have indicated and as prior counsel have indicated is a very dangerous doctrine, because where do you stop?

What obligation of citizenship is it; that is to lead to the taking away of citizenship status itself.

Why do we have a system of punishments instead of a system of banishment in this country?

And I remember hearing in this connection, just give one illustration, one of our finest District Court Judge's in the United States Judge Edward Weinfeld, talked once on the subject of sentencing.

Judge Weinfeld said that in his view, a man who was most delinquent in his obligations of citizenship above all others was a man who has defrauded the government of taxes, because taxation was the sinuous of a government and that was the case where Judge Weinfeld, a very fair but very able judge imposed the most severe penalties.

Now the illustrations, the manifold, there is not much point in my trying to be more ingenious than other counsel and the various members of the Court in illustrating where this is, where this ends, but I think it ends nowhere and it comes down to the whole problem with the conception of citizenship.

I would suggest that we of course adhere to the basic principles laid down by the Chief Justice in the majority -- in the first section of his majority opinion in Trop and in his dissent in Perez, but we have not found it necessary in view of the time, I simply won't argue what is not the majority opinion of the Court on the question of the general power of the government in a case where there is “A rational nexus”, to take away citizenship, but the broader doctrine that somehow or other there exists a sovereign power in the government to take away from the people who intended to be sovereign, the citizens, their status this I think is an appalling doctrine, and the government has attempted to minimize here, the question of statelessness.

And I prefer to refer to Mr. Justice Frankfurter's comments in one of the cases, I think it was in Trop where he pointed out -- where he pointed out that citizenship, the loss of citizenship has tragic consequences.

While the Justice ameliorated the situation to some degree, no reflection of these tragic consequences is suggested in the government's brief and I would merely indicate a few things to the Court at the present time.

Justice John M. Harlan: Are you going to address yourself at some point to the question as to whether Congress has power to take away citizenship without the citizen's consent?

Mr. Leonard B. Boudin: If there had been sufficient time, Your Honor, I would have welcomed the opportunity that I think that really involved a re-argument of Trop.

Justice John M. Harlan: Or is it --

Mr. Leonard B. Boudin: The re-argument of Perez, but it is necessary for me to make that point here because we make the point that Trop is controlling in the sense that we have had punishment here.

Punishment here which is cruel and unusual punishment under the Eighth Amendment, that there is no rational basis between the act of remaining abroad and the foreign relations power of the United States and that therefore under both Perez and Trop this statute is unconstitutional.

Justice Potter Stewart: Well now you certainly don't make the argument or do you that denationalization itself is either punishment or if punishment, cruel and unusual?

Mr. Leonard B. Boudin: Yes I do make the argument.

Justice Potter Stewart: Well then you are asking us to overrule three cases in this Court.

Mr. Leonard B. Boudin: No I'm not.

Justice Potter Stewart: Perez and Savorgnan and Hare.

Mr. Leonard B. Boudin: I'm not asking Your Honors to overrule Trop, I'm asking Your Honors to follow Trop.

Justice Potter Stewart: No, I said Perez.

Mr. Leonard B. Boudin: Yeah.

Justice Potter Stewart: Savorgnan.

Mr. Leonard B. Boudin: I'm going to be more responsive to Your Honor, if I may.

I'm asking, Your Honor to -- I'm not asking Your Honors to overrule Perez because Perez was a case not involving in the view of the Court punishment, but involving a rational relationship which doesn't exist here.

And I'm not asking, Your Honors to overrule the others, if Your Honor -- I'd be glad to say why I'm not.

Justice Potter Stewart: But just -- I perhaps I didn't put my question very well.

I -- my question was, was whether or not you're urging us that denationalization per se is punishment, and, (b) if punishment whether denationalization is cruel and unusual punishment, that is involuntary denationalization.

Mr. Leonard B. Boudin: I am precisely urging that and relying upon Trop as my authority.

Justice Potter Stewart: Now wouldn't you concede that at least three cases this Court has affirmed situations in which citizens were involuntarily denationalized.

Mr. Leonard B. Boudin: Yes, but in none of the cases in which the Court reaffirmed that was the issue of punishment involved.

In each case the Court regarded that and I think that point has been made in all of the opinions of the Court, the Court has regarded that as a transfer of allegiance, Your Honor is referring to Mackenzie against Hare, the Savorgnan.

Those were cases --

Unknown Speaker: [Inaudible]

Mr. Leonard B. Boudin: Yes, the first two were cases clearly of a transfer of allegiance.

I think that Perez represents the first break with the past and given the time I would welcome the opportunity to reargue that principle, that the rational nexus theory can be applied to citizenship itself.

But it is not possible for me to reargue them.

The important point is that I am not faced with any decision of this Court, which says that punishment can be constitutionally imposed or rather that denationalization can be imposed as a form of punishment constitutionally.

I have on my side the one case which is in my favor here, which is Your Honor's own decision in Trop, an indistinguishable statute in terms of origin, language from the beginning and the general developmental history.

So that there is no case in this Court, no case as yet, unless this is to be it in reversal of Trop, in which this Court has said someone maybe punished, maybe punished for by taking away his citizenship.

Now --

Justice William J. Brennan: Mr. Boudin even though you are going to reargue it, may I just ask this?

It was suggested yesterday that when Dr. Cort entered Czechoslovakia, he sought admission as a stateless person.

Mr. Leonard B. Boudin: I believe Your Honor, that there is no evidence in the record as to that.

I do not know the facts.

I could not conceive that it -- I would -- cannot conceive of it being at all relevant here --

Justice William J. Brennan: Was that statement unsupported by anything in this record?

Mr. Leonard B. Boudin: I believe so but I am not sure Your Honor.

I would have to address myself to that.

If Dr. Cort sought admission as a stateless person, if he did, it was obviously because the United States was not giving him at that time and as it had not from 1951 on, a passport.

Justice William J. Brennan: Well, this leads me to ask this.

If we have the problem, which in your view we don't, whether there maybe denationalization except with the consent of the citizen, might a citizen renounce American citizenship to embrace a stateless status?

Mr. Leonard B. Boudin: I don't think that there is any such line of continuity between renunciation of American citizenship and the adoption of stateless.

One never adopts a stateless position.

It's a limbo into which one is thrown by his government's act or his own, but he doesn't adopt it.

Justice William J. Brennan: So far I gather our cases have been, Savorgnan and Mackenzie at least, where there has been -- what's been embraced has been another allegiance.

Mr. Leonard B. Boudin: Exactly Your Honor, and in Perez where they had already rejected another allegiance, which the man still was able to retain.

This will be as I said, perhaps not expertly, originally the only case in which a man has been -- has had his citizenship taken away, that I know of, whether for a crime or otherwise, but the by the act of his government and in which he will become stateless.

Justice William J. Brennan: Well in any event if Dr. Cort did embrace or attempt to embrace a stateless status, he certainly has changed his mind.

Mr. Leonard B. Boudin: He never wanted Your Honor to be stateless.

This was a situation enforced upon him by the United States Government.

And Dr. Cort as a matter of fact at this moment does not have the full privileges of an American citizen to which he his entitled, under the decision of the court below because in answer to a question that was given the other day, Dr. Cort only has a one-way passport to the United States given by the United States Government in response to the order of the court below.

Well now obviously he is entitled to all the rights of a citizen.

Justice John M. Harlan: Mr. Boudin --

Mr. Leonard B. Boudin: Yes Your Honor.

Justice John M. Harlan: As I understand your argument, you're assuming or accepting, event though you don't agree with it, the constitutional power of Congress to denationalize without consent, your argument bypasses that question or assumes it.

In another words you say you can win this case even making that concession.

Mr. Leonard B. Boudin: Yes.

Justice John M. Harlan: Do I understand you correctly?

Mr. Leonard B. Boudin: I have emphatically in my brief Your Honor agreed with the Chief Justice's opinions to which I have referred before and denied here as I have elsewhere that the Congress of the United States had the power to take away against a man's consent his citizenship, but I have said that as -- that I do not have to carry that burden here.

Justice Hugo L. Black: Are you waiving that at all?

Mr. Leonard B. Boudin: I am certainly not waiving it, I have made the point in my brief and nothing would please me more than to have the Court as I think it should pass upon the issue, but I do not think that in my case it will have to.

I would have welcomed the opportunity for a full argument before the Court to reargue this particular matter, because I consider it one of the most serious decisions that was ever made by the Court and leave this [Inaudible]

Justice William O. Douglas: Well I thought in answer to Justice Stewart you have said that the constitutional question is always open before this Court.

Mr. Leonard B. Boudin: Even if counsel doesn't raise it and I have raised it from the first day that we began this case, I have challenged the constitutionality of any Congressional action whatsoever in depriving a man of American citizenship.

Justice John M. Harlan: Well you have some slight stumbling block.

Mr. Leonard B. Boudin: I have --

Justice John M. Harlan: And the fact that the Court has decided at least three times that, that isn't so.

Mr. Leonard B. Boudin: I have a slightly [Inaudible]

Justice William O. Douglas: Have very often have been overruled.

Mr. Leonard B. Boudin: I have -- well I hope that the Trop will not the overruled Your Honors since I think that it is very substantial authority for me here.

May I make two more observations in view of the time problem?

The first is that the discussion by the government of the fact that there are conventions being held for the purpose of minimizing or continually mitigating the rigors of the absence of nationality is the best proof that there are very critical problems involved in terms of the loss of nationality and one doesn't need be sociological expert to tell of refuge problems that exists all over the world today, because the people without nationality even where political problems are not involved.

And of course if Dr. Cort were to come to this country and would find that by a decision of this Court, the novel one that I suggested before, he no longer had citizenship.

Your Honors realize that he would fall under 241(a) of the Act making him an excludable person.

He would fall under 212 (a) of the Act, he would fall under 241 of the Act making him a deportable alien.

He would fall under another section of the Act, which gives the Attorney General the right to arrest him, a man born in this country, keep him for six months or so, look for another country to deport him and he would fall under probably the most serious section of the Act in the history of this country that lower courts at least have criticized, the provision that he shall be subject to supervision under regulations prescribed by the Attorney General, that he shall submit to medical and psychiatric examinations.

This is an American citizen, a man born in this country, that he shall give information under oath as to his nationality, circumstances, habits, associations and activities and such other information whether or not related to the foregoing as the Attorney General may seem -- feel fit and proper, this is what happens.

Justice Arthur J. Goldberg: I thought the government counsel has conceded [Inaudible] he would be regardless of outcome of this case a legally resident alien [Inaudible] against you?

Mr. Leonard B. Boudin: That concession I very much appreciate Your Honor, but I regret that my good friend learned as he is, cannot speak for the Congress of the United States or even for those who administer the statue.

Just as statelessness says, Mr. Justice Brennan pointed out, is a wide area of unknown dangers, so entering the statute under -- entering the country under these unusual circumstances, if we were not to prevail, it would create very serious problems.

Of course I have been talking about the Dr. Cort individually, let us forget about Dr. Cort and consider X, because this Court is concerned with the border problem.

A man norn in this country not entering under these particular circumstances, is he to be treated, the American citizen born here, treated this dreadful way that we subject aliens even in 1962 and I had a sad smile as I heard some other statements made about the amelioration of our immigration laws, but every member of this Court knows what our immigrations law are today.

And I would only add one word if I may Mr. Chief Justice with respect to a problem that I passed over a little too quickly.

I think I may not have been completely fair to counsel or to the Court when I moved into an argument on the clear and convincing evidence doctrine, because if in fact the government's admission is a justifiable one and I think it is, namely as Mr. Terris, preceding counsel stated.

If this is punishment said Mr. Terris, then the statute is embowered as the Court because he never had a trial, a point made by Mr. Justice Black, which I discussed the other day.

There has -- there is no trial provided for under this desertion -- under this draft evasion statute.

Although there is a trial provided for under the desertion statute and the fact that we may ultimately review the proceedings in a 360 action or in some other action of the judicial code does not mean that we have had a trial, which has led to the punishment.

Justice Potter Stewart: You mean a criminal trial involving the constitutional safeguards that surround a criminal trial.

Mr. Leonard B. Boudin: Yes Your Honor and I would --

Justice Potter Stewart: [Inaudible] jury trials the rest of it.

Mr. Leonard B. Boudin: Your Honor yes and I would say we have not even had a civil trial of the kind which we were entitled to before we lose our nationality.

We lost, well Dr. Cort, I don't want to make this too inclusive at the moment, Dr. Cort lost his nationality as a result of an administrative decision of an assistant division head in the Department of State.

Justice Hugo L. Black: Was that the ground on which his passport was denied?

Mr. Leonard B. Boudin: No, Your Honor the ground on which his passport was denied occurred in 1951.

The Government is taking some support for that here, in violation -- under the general principles, which were struck down by this Court in Kent and Grale against Dulles.

The Government from 51 on was treating Dr. Cort as if he were not entitled to some of the benefits of citizenship, they denied him a passport.

Justice Hugo L. Black: I understood that in this case the position was that the statue itself makes a man automatically, deprives him of citizenship if he leaves here on the account of -- to evade the draft and if that happens before he has any kind of a trial.

Mr. Leonard B. Boudin: That is correct.

The position of the government is --

Justice Hugo L. Black: Automatic depravation of citizenship without any kind of trial in any Court.

Mr. Leonard B. Boudin: May I respond?

Justice Hugo L. Black: Is that it?

Am I right about it?

Mr. Leonard B. Boudin: Yes, the position of the government is and it was the position taken by the Department of State that from the moment that he allegedly remained aboard to avoid the draft, from that moment, without a trial judicial administrative, criminal or civil, he lost his citizenship.

Justice Hugo L. Black: Is that what the statute provides?

Mr. Leonard B. Boudin: Yes, the statute doesn't provide for any trial.

It provided the act of remaining aboard, now when the time comes to be denied a benefit like a passport as occurred later in 1959.

An Administrative Chief in the Department of State says, “I have looked over the papers, I am satisfied that Dr. Cort remained aboard for avoiding the draft, purpose of avoiding the draft and I therefore hold that he is not a citizen.”

Then you go to the Board of the Nationality Review, which again under the procedure I have indicated makes the same, but none of this is provided for by -- no trial is provided for by statute.

Justice Hugo L. Black: If you get a judicial review of that, what kind of judicial review is it?

Mr. Leonard B. Boudin: I think the only judicial review we could have here would be one of the constitutionality of statute and as Mr. Justice --

Justice John M. Harlan: It was review de novo, wasn't it?

Mr. Leonard B. Boudin: I don't think that -- I think --

Justice John M. Harlan: Evidentiary wise, constitutional wise, statutory wise, every wise.

Mr. Leonard B. Boudin: Ah but the question, the original question is, was there a jurisdiction to deny Dr. Cort in the first place a passport?

Was there a power in the government without a hearing, without the trial which this Court suggested in the Kurtz case, which the Court of -- which the Pennsylvania Court of Appeals suggested in Huber, was a condition preceding to the depravation of a right, but because between the time that Dr. Cort allegedly remained away for the purpose of avoiding the draft, and the time that the Court ultimately decided the matter, he was denied rights by the Department of State without a trial, on the ground that they had evaluated the situation and that he was no longer an American citizen.

Justice Arthur J. Goldberg: [Inaudible] trial without a hearing in this case?

Mr. Leonard B. Boudin: I don't think the Supreme Court is a court of original jurisdiction Your Honor to hear this kind of matter.

Justice Arthur J. Goldberg: No, [Inaudible]

Mr. Leonard B. Boudin: I think quite a difficult trial, because the state's normally on affidavits this were -- this was and is not the trial which Congress, which the Constitution contemplates as a trial occurring before the man is to be deprived of benefits.

As Your Honors will recall this --

Justice Hugo L. Black: May I call your attention this also, that this is a trial, it's a trial by the Judges, if this man had an automobile license or if somebody took away a $6 -- $25 piece of property, but he was tried for offense which would subject him to no less depravation for the matter of loss of citizenship, he would have a trial by a jury or judges, who tried the whole case with counsel, right to counsel and all of those things.

And there is a question that arises so far as I am concerned and whether that kind of so called judicial review, the kind of protection that the Constitution affords the man, because they take him -- they take away his citizenship.

Mr. Leonard B. Boudin: As a final word if I may impose Your Honor, Mr. Justice Frankfurter, I've tried to reach this point before, in a footnote to Trop suggested, this is footnote number three, suggested that Trop, or a person like Trop could have shown in his judicial trial that the Court-Martial was without jurisdiction and we suggest that the judicial trial here, the so called judicial trial before the three-judge court in which we saw a passport, it is appropriate to show not merely that there was no jurisdiction in a Court-Martial which wasn't here, but there was no trial at all.

I thank Your Honor for --

Chief Justice Earl Warren: Is there also a presumption in this case?

Mr. Leonard B. Boudin: Yes, Your Honor there is a presumption that I have dealt with in my brief.

Chief Justice Earl Warren: That he has to overcome?

Mr. Leonard B. Boudin: Exactly and we have challenged the constitutionality of that presumption.

Chief Justice Earl Warren: Yes.

Mr. Leonard B. Boudin: We think that it bears no rational relationship to the fact involved particularly because it says that any violation of the Selective Service laws will lead to a presumption that a man is remaining abroad for the purposes of avoiding the draft.

Well Your Honors who are at least as expert as I am in this area know the numerous violations of the Selective Service laws, all of which are necessarily as a matter of law encompassed within this word any violation.

Chief Justice Earl Warren: But my point was that he has in addition to what you -- his burden would be in an ordinary trial, he is required in a proceeding of this kind to overcome a presumption?

Mr. Leonard B. Boudin: Yes, I missed Your Honor's point -- Your Honor is quite right.

That is quite true, we have that additional burden and we address ourselves on the constitutional level really to that as well as the preceding point.

Chief Justice Earl Warren: Yes.

Mr. Leonard B. Boudin: Thank you.

Unknown Speaker: Mr. Boudin.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leonard B. Boudin: Yes.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Leonard B. Boudin: I shall answer Your Honor.

This matter is still in litigation.

Dr. Cort has been given only a small part of its right to the citizen by the United States government, namely a one-way passport.

There is no indication that the government, although we prevailed in the Court below, is prepared to recognize him as a full citizen with a very ill wife, as the record will indicate, bring his family here and to begin to try to settle down while this matter is in litigation, would be I think an unreasonable burden on any individual.

I may say in answer to Your Honor's unspoken question and Mr. Doolittle's stated point that Dr. Cort does not want Czechoslovakian citizenship.

We thank the government for suggesting that he might be eligible for it, but it is the one thing that we have not wanted and the one thing that Dr. Cort does want is to have American citizenship, to have all the rights and to comeback here as an American citizen either to go into the army, and Your Honor's will read the record to show the efforts that we made beginning with 1959 in our meetings with General Hershey on this moment or/and to face a criminal indictment, but to give us a crumb here with all the sanctions that might be imposed when the government is ready to colloquially if I may say, lift the beam, I'm afraid that they dropped the beam, I'm afraid that, that will be an unfair burden at the moment.

But Dr. Cort has done nothing, although he could have of course in the way of adopting Czechoslovakian citizenship and his children as indicated here are American citizens.

Now I --

Justice Byron R. White: Well being -- your point about having had no trial prior to depravation of citizenship, you are really making that argument aren't you regardless of whether this is punishment or not.

Mr. Leonard B. Boudin: Yes I am.

I think the punishment aspect aids it.

The government suggests I'm dependent upon on whether it is punishment, but I make it regardless whether it is punishment because whether you call it punishment the government uses the word technically or not.

Justice Byron R. White: [Inaudible]

Mr. Leonard B. Boudin: Yes, well I didn't know the statute, it's for Congress to pass a statute that will give us a trial, until they do that I think one can assume, at least we assume that the depravation is unconstitutional.

Justice Byron R. White: [Inaudible]

Justice Byron R. White: In Nishikawa, I have it right on Gonzalez that the burden is upon the government to prove by clear and convincing evidence the act of expatriation and that this occurs in a trial anytime that the person allegedly who expatriated, asks for any of the rights of citizenship.

Mr. Leonard B. Boudin: The government was never faced with the argument that I have made here.

Justice Potter Stewart: But isn't --

Mr. Leonard B. Boudin: Yes, the Court in both cases decided in favor of the individuals involved.

Justice Potter Stewart: And on that basis.

Mr. Leonard B. Boudin: And on that basis without ever holding because the issue was never litigated as I can recall it, without ever holding that the depravation could occur without a trial.

This issue that I have posed in our briefs and we raised in the District Court, that there must be a trial similar to the one which existed in Trop.

This --

Justice Potter Stewart: This is a Court Martial, there obviously couldn't be that here, you're not saying --

Mr. Leonard B. Boudin: Yes exactly, it would have to be a trial and Congress has setup as the Court has held, Congress has setup a Court Martial procedure for the deserter.

It has never set up any kind of trial for the man who is allegedly remaining abroad for avoiding the draft.

Justice Potter Stewart: But this Court has clearly and unambiguously held, has it not, that anytime that -- the alleged expatriate at anytime can ask for any of the privileges or benefits of citizenship and if they denied him then it's up to the government in a court of law to prove by clear and convincing evidence, and that had the heavy burden to prove the act of expatriate.

Mr. Leonard B. Boudin: Yes Your Honor and this Court has not held, has not held that the issue has never been raised, that a person can even in the absence of clear and convincing evidence, be deprived of his nationality by virtue of an act whose interpretation is left in the hands of an administrative official.

That was not raised in Nishikawa; that was not raised in Gonzales; that has never been raised before.

Justice Potter Stewart: Because there were trials in those two cases and there was a trial in this case.

Mr. Leonard B. Boudin: I don't recall the precise trial -- there was no trial as -- there was no trial here until many, many months and years after we had suffered the depravation of citizenship in the view of the State Department.

There was no trial until many months after an administrative official of the State Department had said you have lost your citizenship as of September 1953.

Justice Hugo L. Black: And what kind of a trial was it?

Mr. Leonard B. Boudin: We never had a trial here.

We had a review proceeding of the District Court on which we charged that the absence of a trial made the government's action unconstitutional.

Justice Hugo L. Black: [Inaudible] having the trial not merely the review of some administrative agency that has heard evidence and made findings and so forth.

You say that he is entitled to a trial before they do this, he is entitled to trial by jury with all the protection that the Court of law affords the man charged.

Mr. Leonard B. Boudin: Yes and not a decision reached by a man across the desk, a perfectly nice man in the State Department who shuffled some papers and has a pleasant oral argument with me.

And then as result of the shuffling of papers, which I have never seen, makes a decision which led to the telegram, which is set forth in the record here.

Citizenship, the passport denied, because you've expatriated yourself.

That man maybe the finest man in the world, but the Constitution didn't set him up to try people and to deprive them of citizenship.

Thank you.

I thank you Your Honor.

Chief Justice Earl Warren: Mr. Doolittle?

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice, I should like to cover one point that is suggested by a question of Mr. Justice Goldberg in relation to my argument yesterday and that is a point of immigration law.

If Mr. Cort should come back to the United States under the passport that he has been granted, of course he would be illegal entrant.

There would be no basis for contending that he was not a legal entrant.

Then if subsequently the District Court's decision should be overruled, should be reversed by this Court, there would be a question as to whether or not he could then be deported for any -- for being within an excludable class when he came into the United States.

Now that question has never been decided by any Court as far as we know.

It depends obviously on whether or not during the period of litigation the Supreme Court's final decision could have retroactive effect, and as I say that question is an open question.

So there is the possibility that he could at that point be deported for having been within an excludable class when he entered, not for having entered illegally, but for having been within one of those classes and of course he would be within at least one excludable class.

Now I should also like to cover --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Pardon me?

Justice William J. Brennan: I gather that what you are saying, is under those circumstances and if there should be a reversal, I gather that the -- he became – ceased to be an American citizen as of whatever is the date found that he committed the expatriating act, that's it.

Mr. J. William Doolittle: Well, that's right Your Honor.

Now, but what I say is the open question.

It's whether or not he could at that point be deported for having entered the United States at the time he was within an excludable class.

Justice William J. Brennan: Well my point is, if the government prevailed, he has been an alien every since 19 --

Mr. J. William Doolittle: That is correct Your Honor.

That is correct.

Justice William J. Brennan: And I gather what you are saying is that, that being so a question would be raised whether when admitted, now as having been determined that at the time of admission he was an alien, was he within an excludable class?

Mr. J. William Doolittle: Well it's clear that he would be -- he was within an excludable class.

Justice William J. Brennan: Right.

Mr. J. William Doolittle: But whether he would be deportable on that ground.

Justice William J. Brennan: Well that's the question I want next to get to.

He would clearly be within an excludable class.

Mr. J. William Doolittle: That is correct.

Justice William J. Brennan: And does it follow from that, that he would also then be deportable within one of the classes, deportable for --

Mr. J. William Doolittle: My whole point Your Honor is that, that question has not been decided.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: We don't know the answer to the question.

It is possible that he would be but we would not be inclined to say that --

Justice William J. Brennan: Well, in any event the government would be free I gather you are suggesting to seek his deportation on some basis under the laws governing --

Mr. J. William Doolittle: Yes, Your Honor, he would be an alien, they would certainly be free.

Justice William O. Douglas: You are not asking for an advisory opinion.

Mr. J. William Doolittle: Not at all, Your Honor, not at all.

Now I'd like to cover one other question that Mr. Justice Brennan asked, I believe it was on the basis for my statement yesterday that he entered as a stateless -- entered Czechoslovakia as a stateless person.

That is based upon page 87 of the record, which is a part of his application for a passport in which he indicates that his residence permit in Czechoslovakia was a residence permit as a stateless person.

Now I would also like to cover a factual question.

Chief Justice Earl Warren: He would be -- he wouldn't be able to say he was an American because they denied him a passport and I suppose we wouldn't be able to say he is an Englishman because they refused to let him stay there any longer, what would you suggest that he say in there, when he made this application for a passport in Czechoslovakia?

Mr. J. William Doolittle: Well I'm -- Your Honor, I'm not suggesting that he should have said anything else.

I'm merely -- my statement yesterday was merely that he entered Czechoslovakia as a stateless person.

I am not attaching any morals one way or the other.

Chief Justice Earl Warren: Well you mentioned there it was one of the factors against him, that he himself admitted he was a stateless person.

I was just wondering that if that was an irrational thing for him to do in the circumstance.

Mr. J. William Doolittle: No, I'd say, I say he knew he was a stateless person, but that's all I can say.

Justice William J. Brennan: [Inaudible] do I now understand you to say you are making no mileage for your case out of that fact?

Mr. J. William Doolittle: No, except insofar as Czechoslovakia knew he was stateless person and did not treat him on the ground.

Justice William J. Brennan: Are you making any point of the fact that this statement appears …

Mr. J. William Doolittle: No.

Justice William J. Brennan: Not at all?

Justice Hugo L. Black: Do you agree with it, that he was?

Mr. J. William Doolittle: I do agree with it, Your Honor.

Now I'd like to cover one other factual point raised by Mr. Boudin yesterday, and that is on the question of Mr. Cort's purpose in remaining aboard.

It was indicated that Mr. Cort had -- if I could just finish this Mr. Chief Justice.

Chief Justice Earl Warren: Yes, oh yes, go right in.

Mr. J. William Doolittle: It was indicated that Mr. Cort had received a letter from the authorities at Harvard prior to his having received a notice from his draft board.

Now in point of fact because of the problems of when letters reach one across oceans and so on, it is probable that a letter written by Harvard did reach Mr. Cort before his draft notice did.

But in point of fact that letter from Harvard, what it said was, and this appears at 138 of the record, it said, “We have had to deny your request and we declare your position essential, so you'll probably be drafted.”

Well now Your Honors, if that is what made Mr. Cort decide to stay in England rather than his actual draft notice, which he received a few days later, we suggest that it's just as clear that he remained in England to evade the draft.

We suggest that the fact that he knew he was -- that he heard that he was going to be drafted first from Harvard rather than from the Selective Service Authorities doesn't make any very important difference as far as his own mental attitude is concerned.

Thank you, Your Honors.

Justice Tom C. Clark: How about [Inaudible]

Mr. J. William Doolittle: No, sir he didn't.

Justice Tom C. Clark: He did not and would he be entitled to [Inaudible] under this wording in the statue?

Mr. J. William Doolittle: Yes, he would.

Justice John M. Harlan: [Inaudible]

Mr. J. William Doolittle: No, sir.

Print this transcript Transcript: 

Argument of J. William Doolittle

Chief Justice Earl Warren: Number three, Dean Rusk, Secretary of State Appellant versus John Henry Cort.

Mr. Doolittle.

Mr. J. William Doolittle: Mr. Chief Justice, may it please the Court?

This is another expatriation case.

Appellee Joseph H. Cort was denied a passport by the Secretary of State on the ground that he had expatriated himself under Section 349(a)(10) of the Immigration and Nationality Act of 1952 by remaining outside of the jurisdiction of the United States in time of national emergency for the purpose of evading military service.

When the case was here last Spring, this Court decided that the District Court had jurisdiction to entertain appellee’s suit for a judgment declaring that he is a citizen and enjoining the Secretary from denying him a passport on the ground that he is not and the Court held that Section 360 (b) and (c) of the Act did not provide the exclusive procedure by which he could attack an administrative determination that he was not a citizen.

The Court ordered the merits of the case reargued and so today there is squarely presented for decision the constitutionality of Section 349 (a)(10), which is the statutory successor to Section 401(j) of the Nationality Act of 1940, whose constitutionality is at issue in the Mendoza-Martinez case just argued.

The facts are essentially undisputed.

Cort was born in Boston in 1927.

On turning 18 in 1945 he registered under the regular Selective Service Act and shortly thereafter was classified 4(f).

He later registered under the Universal Training and Service Act of 1948 and under that Act was classified 3(a) and subsequently 2(a).

Then he attended the Yale Medical School from, which he received the MD degree in 1951, June 1951.

Shortly prior to graduation in May 1951, he registered under the Doctors Draft Act.

In that same month, May 1951, he departed for England to accept a research fellowship at the University of Cambridge.

In September 1952, while he was still in England on that fellowship --

Justice William J. Brennan: May I ask Mr. Doolittle did he have to [Inaudible]

Mr. J. William Doolittle: He was required to obtain permission.

It appears that there was a little bit of confusion in his mind at this time.

The time for him to register had not yet arrived when he registered.

You see he left actually before graduation, before he was an MD.

He got the -- he discussed the matter with the local draft board, also discussed it with the draft advisor at Yale.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Yes, the problem that he had and his draft advisor at Yale, who was a member and the faculty, advised him that he was sure this would be all right and at the local board in New Haven with which he had registered was fully advised.

Now there is a bit of a problem in that he -- his registration was actually with -- his registration, his regular registration under the regular draft was with a Board in Brookline, Massachusetts, which was not informed of this, but we do not regard that as bearing on his intention in leaving.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: His departure --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: That's right Your Honor, we don't contend otherwise.

As I say in 1952 September, while he was still in England, he was classified by his local board in Massachusetts as 1 A medical.

Later in that same year he received an offer of a position as an instructor in physiology at Harvard Medical School.

In December of 1952, he wrote a letter to the authorities at Harvard accepting the position and indicating that he had obtained transportation to return to Massachusetts, to the United States in June 1951, excuse me, in June 1953 and that he would be prepared to start work in July or August at the medical school.

On the same day, he wrote to the Massachusetts Medical Advisory Committee, which was an organ that was assisting the draft boards in their operations under the Doctors' Draft Act.

He wrote back to the committee, requesting a deferment from military service on the ground that his teaching position at Harvard would be essential.

However, the authorities at Harvard, after considering the question, decided that the teaching position could not be justified as essential and they notified the Massachusetts Advisory Committee of that fact and they also notified Mr. Cort.

Thereupon the advisory committee recommended to the Selective Service Authorities, that Cort be considered available for active military service.

And in February 1953, Cort was sent a notification by his home draft board that his request for deferment had been rejected and ordering him to report for a physical examination either at home or at an examining facility at Frankfurt Am Main in Germany.

Cort received this order, but he failed to obey it.

During the Spring of 1953, Cort exchanged several letters with the authorities at Harvard who --

Justice William J. Brennan: That was before at that time.

Mr. J. William Doolittle: At that time he was in England at Cambridge, yes sir.

Justice William J. Brennan: He was told to report I Germany?

Mr. J. William Doolittle: He was told to report either at home or in Germany for a physical examination.

In the Spring of 1953 Cort and the authorities at Harvard exchanged several letters.

The authorities at Harvard noted the desperate need of the military services for physicians and explaining why they couldn't hold his position to be essential.

They suggested perhaps he might wish to seek a military commission.

Cort ended the correspondence with Harvard in 1953 with the statement that his application for a position would have to remain on file.

In June 1953, the local draft board again ordered Cort to report for a physical, this time at home.

Then in July it ordered him to report for a physical in Germany.

Then in August 1953 it ordered him to report for induction at home.

Cort received each of these orders and failed to obey each of them.

Approximately one year later, in August 1954, upon the failure of the British Government to renew his residence permit, Cort traveled to Czechoslovakia where, in his words, he took political asylum.

He did not travel on a valid American passport because his passport expired in 1952 and he did not get it extended.

He was admitted to Czechoslovakia as a stateless person, presumably on his own representation to that effect.

Now later this same year, 1954, he was indicted in the District of Massachusetts for failing to report for induction into the armed forces as ordered and that indictment is still pending.

On taking up his residence in Czechoslovakia, Cort was employed by the Institute for Cardiovascular Research, which is an organ of the Ministry of Health of the Czechoslovak Government.

He lived in Prague with his wife and his two children were born in Czechoslovakia during that period.

I might note at this point that his two children are American citizens and as far as I can determine not Czechoslovak citizens.

Almost five years later, in April 1959, Cort applied for an American passport at Prague.

Six months later this application was denied by the State Department on the ground that Cort had expatriated himself under Section 349(a)(10) of the 1952 Act, and this finding was affirmed by the department's Passport Board of Review after a hearing in December 1959.

Thereupon Cort instituted this suite against the Secretary of State for declaratory judgment and an injunction in March 1960.

A three-judge court was convened to hear his constitutional arguments and in October 1960 the court issued its decision, in which it held first, that the government was required to prove that Cort had committed an expatriating act by clear, convincing and unequivocal evidence.

That the government had met that burden in demonstrating that Cort's purpose in remaining outside of the United States had been for the purpose of evading military service.

However, the court held that Section 349(a)(10) of the Immigration and Nationality Act of 1952 is unconstitutional, feeling compelled so to hold as a result of this Court's opinions in Trop against Dulles.

This case is here on direct appeal by the Secretary of State.

I might add just as a footnote before I proceed to my argument that in fact a passport was issued to Mr. Cort by the State Department, in January 1961, but he has not yet returned to United States.

Now we submit first that there is no question, but that Cort committed the act, that Section 349(a)(10) makes an expatriating act and the only factual issue as to which there was any disputes, the three-judge District Court unanimously found and I quote, “We are convinced that his purpose was to avoid service in the armed forces.

The appellee does not in his brief at least seem seriously to challenge this finding.”

We don't believe that there is any basis for challenging and as I said in December 1952, Cort conveyed to the authorities at Harvard his plans to return including the fact that he had obtained transportation to return.

Justice William J. Brennan: May I ask Mr. Doolittle [Inaudible] issued a passport in January 1961?

Mr. J. William Doolittle: Yes sir.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well it issued under the requirement of the decision of the District Court and we sought a stay of that decision in this Court and we were denied it, so we were required to issue him a passport.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well its premise of course on the decision of the District Court, which we've been unable to get a stay, which not only requires us to issue a passport, but declares him to be a citizen, the department was doing nothing of what it was required to do.

Justice Potter Stewart: And so far as [Inaudible] so far as you know he is still in Czechoslovakia?

Mr. J. William Doolittle: As far as I know Your Honor.

Justice Potter Stewart: Although since, what more than a year he has been…

Mr. J. William Doolittle: Almost two years he is been able to come.

Justice Potter Stewart: Been able to come to this country.

Mr. J. William Doolittle: Yes.

Justice Potter Stewart: Didn't his wife in 1959 try to make arrangements for him and try to make a -- negotiate an agreement under which he could come?

Mr. J. William Doolittle: She returned to the United States in I believe it was 1958 perhaps 1959 and did negotiate with Selective Service Authority, the Department of Justice and State Department trying to workout something, actually with the army as well to perhaps obtain him a commission or something, but all of this led to nothing.

Justice John M. Harlan: Is the draft of that is still pending?

Mr. J. William Doolittle: Yes sir it is.

Justice Potter Stewart: And of course the statute of limitations is total?

Mr. J. William Doolittle: That's right, for his absence from the country.

Justice Potter Stewart: But that --

Justice William J. Brennan: Did the children [Inaudible]

Mr. J. William Doolittle: Yes Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: No that's derived from his wife's citizenship.

Justice William J. Brennan: Were they born after United States [Inaudible] Act?

Mr. J. William Doolittle: Yes sir, but her citizenship alone is sufficient to acquire for them American citizenship.

There are certain requirements, which I assume have been fulfilled in order for this to be the case.

I might say she has to have lived ten years in the United States of which five were after the age of 14.

Now from the fact of the record that we can tell about her, I'm quite sure that, that was the case with Mr. Cort.

I was covering the -- in very summary form the basis for the government's contention that there is no question, but that Mr. Cort did commit the expatriating act.

As I say, in December 1952 he indicated that he had already made plans and arrangements for transportation to return in June 1953 and on the same day, this is the 29th of December in 1952, knowing his service obligation, having been informed that he was classified 1 A medical he sought a deferment.

Now in February 1953 when that deferment was denied and he was ordered to report when he saw that he in fact was going to be called upon to fulfill his obligations, then suddenly everything changed and from then on he made it quite clear that he had no intention whatever of coming back and we submit that this series of circumstances could not be more clear.

Now he has suggested a number of reasons why he allegedly remained in England.

For one thing he suggests that he believes the -- he believed at that time that the induction order was not issued in good faith.

Now we submit that the circumstances under which, as he well knew the induction order, or I should say originally the order to report for a physical was issued, there could be no question of its good faith.

He had applied for a deferment on the ground of the essentiality of his perspective employment.

He knew that the Harvard authorities in good faith denied the essentiality of the position and we submit the procedure from there on was so clearly regular that he was then -- his deferment was denied, he was ordered to report.

There could be no question, no serious questions as to the good faith with which the orders were issued.

He also contended that he didn't want to go back because he was afraid he would persecuted for his political associations, but up until the time he received the notice to report for a physical examination, he intended to go back whatever the consequences might be.

He also said that he thought that his physical disabilities under which he had originally been classified 4F back in 1945, would be such as to render him ineligible for military service.

However, he must have known the doctors were not being held to as high standards as others and in any event the best way to find out would have been to report to the physical and get that determined.

Appellee rests primarily on the challenge to the constitutionality of the statute which of course is the ground on which the government brought the case here.

Now this challenge presents substantially the same questions as those involved in the Mendoza-Martinez case because Section 349(a)(10) is virtually identical to Section to 401(j) of the 1940 Act, slightly updated by the adding of the Air Forces to the Land and Naval Forces.

The only notable difference is the addition in 1952 of the provision that if a person failed to comply with the compulsory service laws his absence from the United States is presumed to be for the purpose of evading military service. However, that presumption is not involved in this case.

The District Court's decision was reached solely on the basis of the evidence actually in the case and the government does not rely on the presumption at all.

I would like to address myself to one way in which this case does differ from the Mendoza-Martinez case, and that is the fact that Cort lacks alternative citizenship, that is that if he is expatriated under Section 349(a)(10), he will be without citizenship in any country.

I might note at the outset that in the government's view this fact has no bearing on applicability of the statute, the underlying problem with which the statute sought to deal is present whether the invader has alternative citizenship or not, and Congress evidenced no intention whatever in its own deliberations that the statute should be limited to one classification of citizens or another, the benefit shall be of course to citizens who are subject to the draft.

We do submit that whatever difference it may make that Cort does not have an alternative citizenship.

The difference is more theoretical than real and it certainly is not a difference of constitutional proportions.

Whatever banishment may have involved in Roman times, whatever outlawry may have involved in the middle ages, we submit that there is not the remotest basis for comparing those conditions with statelessness in the civilized world of today.

Many studies, as both sides have pointed out, have been made in recent years on the problem statelessness, stemming largely from the problems of mass denationalizations in Europe, the problems of refugees and what not.

But there is nothing in any of these studies to indicate any probability whatsoever that persons who lose their statelessness -- lose their American citizenship could become stateless persons, will in fact suffer serious hardship as a results of that stateless.

Quite the contrary as a result of this increased interest in the problem of statelessness brought about not because of individuals like Mr. Cort, but by the problems of mass refugee migrations, significant efforts have been made by both national governments and international organizations to alleviate such problems as do remain in this area.

We submit that this is where the problem belongs in the political organs of government and not in courts.

Justice Hugo L. Black: What would be his status here in this country?

Mr. J. William Doolittle: He would --

Justice Hugo L. Black: What would be his status here in this country if he is stateless and comes back later on?

Mr. J. William Doolittle: Well I might say Your Honor, in all candor, Mr. Cort could not come back.

There is a provision whereby a person who has left the country to evade the draft is excludable.

Justice Hugo L. Black: But of course if he did come back he couldn't get privileges and immunities --

Mr. J. William Doolittle: No citizenship that is true, that is correct, that's correct Your Honor.

Unknown Speaker: [Inaudible]

Justice William J. Brennan: Well if he returned of course he would be subject to the indictment that has been brought against him.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Pardon?

Justice William J. Brennan: To let him into [Inaudible]

Mr. J. William Doolittle: Well I don't know how that could be done Your Honor.

He is as I say excludable absolutely under the immigration law for having left the country to evade the draft.

Justice Hugo L. Black: When you say [Inaudible] if he came back what would happen to him, would he be deportable?

Mr. J. William Doolittle: Yes, sir presumably.

Justice Hugo L. Black: To where?

Mr. J. William Doolittle: Well -- no I should say Your Honor if you were allowed to come into the country, I can't imagine the circumstances, I can't imagine the procedures under which he would be, because as I say he is excludable.

Justice Hugo L. Black: But --

Mr. J. William Doolittle: But if he did come back in to be tried, no there would not be a ground to deport him because he would have entered the country legally.

Justice Hugo L. Black: So what would be his status?

Mr. J. William Doolittle: Well he would be an alien who could not be deported.

Justice Hugo L. Black: He would be an alien who didn't even have the privileges of an alien, wouldn't he?

Mr. J. William Doolittle: Well I don't know any reason for supposing that Your Honor.

Justice Hugo L. Black: Well there is certain privileges and immunities which a man has even as an alien.

Mr. J. William Doolittle: And I suppose that he would be entitled to all of those.

There is no reason for supposing that he wouldn't.

An alien is described as one who is not a citizen and that perfectly describes him.

Justice Hugo L. Black: Well then the states wouldn't have to recognize any of the privileges of immunity as a citizen.

Mr. J. William Doolittle: Well he -- of course he does not have the privilege and immunities of the United States citizen.

Now certainly as far as --

Chief Justice Earl Warren: Mr. Doolittle just to straighten this out, I understood you to say that he has the passport for two years.

Mr. J. William Doolittle: Not quite.

Chief Justice Earl Warren: It hasn't?

Mr. J. William Doolittle: Will be two years in January.

Chief Justice Earl Warren: Somewhere along that line and hasn't chosen to come back.

Mr. J. William Doolittle: Yes.

Chief Justice Earl Warren: Then, I thought I also understood you to say just a moment ago that he would not be permitted to come back.

Mr. J. William Doolittle: Well I'm talking to Your Honor -- well that's assuming that the government's position is sustained in this case.

Chief Justice Earl Warren: Oh.

Mr. J. William Doolittle: Pending the litigation he -- because the stay of the District Court's order was not granted by this Court.

We had to issue a passport, he could come back, but I'm assuming that statute is valid and the litigation is over.

Justice Arthur J. Goldberg: [Inaudible] he said in his affidavit that he wanted to come back but he has not chosen to do so.

He would then be an alien legally admissible to the United States with all of the rights of an alien under any result that might happen.

Mr. J. William Doolittle: Well, Your Honor pending this litigation for all legal purposes, he is a citizen, he is declared to be a citizen by the District Court and we have not been able to stay that decision, so he can come back as a citizen.

Justice Arthur J. Goldberg: Yes, but I'm assuming, suppose you're right here, even then he would have been legally admitted to the United States and would be an alien resident?

Mr. J. William Doolittle: Oh yes if -- that's right.

If he were allowed back in and for purposes of participating in this litigation or of serving a term for draft evasion, yes of course he could be legally admitted if that could be accomplished.

Justice Hugo L. Black: We have pervious [Inaudible] most of the countries in the world about how we'll treat that aliens, the states have to abide by it.

Would any -- would he have any of that protection from anywhere else?

Mr. J. William Doolittle: He would not certainly have the protection of whatever rights some other country had been able to obtain for him.

Justice Hugo L. Black: He would have no rights that an alien has from any country that has a treaty with us.

He would have no rights, privileges and immunities of this country under the Fifth Amendment.

Mr. J. William Doolittle: As a citizen that's right.

He would have certainly some rights just as a resident alien.

That is to say a person who is living in this country who is a resident alien is not one who can be treated with impunity by anyone.

This Court --

Justice Hugo L. Black: Their main protection, do they not come from treaty?

Mr. J. William Doolittle: The protections are -- of course he has fewer protections than as a citizen has.

Now one thing I would like to emphasize is that so far is Mr. Cort himself is concerned there is not the vaguest hint in this record that he is experiencing or would experience any hardship as a result of his status of statelessness.

Czechoslovakia admitted him eight years ago as a stateless person and despite its full awareness of his status.

There is no indication that it has treated him in any but the most hospitable manner.

He is at all times held the position, a responsible position in a government research institute.

He is continued his very extensive writings in the field of medical research.

He speaks Czech fluently, as well as speaking a number of Eastern European languages.

He is seen fit to have both of his of children born there.

He went almost five years without seeking an American passport and he has had a passport for almost two years, but has not seen fit to exercise his rights.

We submit that at least as far as Mr. Cort is concerned there is no basis for supposing that statelessness has imposed any difficulties upon him.

But the more important --

Justice Arthur J. Goldberg: You are not pleading the American citizenship with Czechoslovak citizenship.

Mr. J. William Doolittle: No, Your Honor, but what I want to emphasize and what I am discussing here is the difference between statelessness and well, dual nationality, a person who has another citizenship.

I am simply saying that, that as far as his situation is concerned it is not significantly different from one who had another nationality.

Indeed, I might point out that the very circumstances that I have cited to you might very well be taken to indicate that he didn't regard a Czechoslovakian citizenship as such a very bad thing after all.

Justice William O. Douglas: Well I don't what this has to do with the merits.

He either has a legal right or he doesn't have a legal right.

These equities, these so called equities you're talking about are highly relevant.

Mr. J. William Doolittle: Well, what I'm addressing myself to Mr. Justice Douglas is the question of whether or not statelessness is in any genuine respect equivalent to be an outcast banishment and so on, but more particularly whether it's significantly different from the person who has his citizenship taken away but has no alternative nationality.

But the point that you just raised is equally applicable to both persons; one who has no alternative nationality and one who has, that's my point.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: We don't know, Your Honor.

I think we have a fair basis.

For example, Mr. Cort's situation itself gives us some basis for knowing that here is one person at least whose situation we do --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, Your Honor, who is to know what's to be true of anyone who has nationality in another country.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, Your Honor, and it also, it might be very different if he had some other nationality.

You see the point that I am addressing myself to is not whether the nothingness between having an American citizenship and not but having no citizenship and having another non-American citizenship, and for that matter the United States cannot require that other country shall protect their citizens and assure them civil rights.

Justice William J. Brennan: [Inaudible] I have little difficulty in understanding what any body could [Inaudible]

Mr. J. William Doolittle: But Your Honor --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, I would also suggest that we have no basis for knowing what would be the status of a dual national, who lost his American citizenship because we can't require his other nationality to protect him to give him civil rights.

He may be just as badly treated in the country if his other nationality is as a stateless person, we can't do anything about it.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well, quite possibly it's been suggested in argument here that a state -- that a person of dual nationality would not look forward to --

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: I would not look forward to having anything but my American citizenship, Your Honor.

Now, the second reason, and in my view really the most important reason why statelessness as such cannot be said to be an intolerable consequence of expatriation and I emphasize that I --

Justice William O. Douglas: That is a permanent [Inaudible] or a variable or something.

Mr. J. William Doolittle: If that's possible that that would about as bad as I could imagine.

Whatever the hardships --

Justice Hugo L. Black: It was possible, wasn't it?

Mr. J. William Doolittle: In the case of the man without a country apparently.

Whatever the hardships of the status of statelessness, the important point is that there is no basis for assuming that a stateless person need remain stateless indefinitely against his will.

The most notable trend in the nationalization procedures of the nations of the world has been in the direction of liberality.

What this means is that any person who wishes to avoid statelessness can acquire the citizenship of another state.

We have shown for example, on page 54 of our brief that Mr. Cort appears to be fully eligible to acquire Czechoslovak citizenship by naturalization.

The record does indicate affirmatively that he has not applied.

However there is nothing to suggest that he might be turned down, if he did so.

If the day should come when it could be shown that all doors to other nationalities were closed to persons who lost their American citizenship, the argument of statelessness is a too drastic consequence that might have some weight.

As it is we submit that no one can complain of the hardships of statelessness who could end that status with little difficulty.

Now I should like very briefly since of course the constitutional questions involved in Mendoza-Martinez are involved in this case, I should like very briefly to summarize the government's position in that case -- in this case.

Justice William J. Brennan: The statue is identical, is it not?

Mr. J. William Doolittle: With the qualifications, the minor and inapplicable qualifications that I've indicated that's right Your Honor, identical.

Justice Potter Stewart: Well is that statutory presumption?

Justice William J. Brennan: Yes.

Mr. J. William Doolittle: Well as I pointed out Your Honor that is not involved in this case.

Justice Potter Stewart: It was relied on very heavily administratively.

Mr. J. William Doolittle: That's right Your Honor, but the trial in this District Court was the trial de novo and the District Court did not rely on it.

Justice Potter Stewart: It didn't even mention it?

Mr. J. William Doolittle: Pardon?

Justice Potter Stewart: District Court didn't even mention it.

Mr. J. William Doolittle: That's right.

We believe that the statute is sustainable as counsel in Mendoza-Martinez have stated under three interrelated heads of government power; the war power, the foreign relations power and the inherent power of any national government to regulate its own citizenship.

We submit that without doubt a departure from this country to evade military service in wartime raises the most serious problems, and problems that are cognizable under the war power.

We believe that the problem of the inequality, the gross inequality of treatment as between those who risk their lives by service and those who sit out the war from security of a foreign shore is an extremely serious problem and one that must be dealt with by a country deeply engaged in war.

Justice William J. Brennan: What was the fact here, [Inaudible]

Mr. J. William Doolittle: This was in 1953, I don't believe all the shooting had stopped there.

Justice William J. Brennan: [Inaudible]

Mr. J. William Doolittle: Well perhaps you're right Your Honor.

I don't know.

Certainly we're not relying on the precise situation that was involved in this case.

I'm of course directing myself to the problem that Congress was trying to meet.

Justice Hugo L. Black: I understood that you're repeating the statement that in view of the powers of the government, do you mean by that powers that are not granted in the Constitution either expressly or impliedly.

Mr. J. William Doolittle: Yes.

Again, Your Honor to repeat the argument of Mr. Terris, we believe that the power, for example the power of foreign affairs is an inherent power of the government.

We believe it's not one that's to be implied from anything in the constitutions, it's inherent in any country with solvency and similarly we believe that the power to regulate citizenship --

Justice Hugo L. Black: Do not find any constitution authority directly recognizing the government, Federal Government's power to conduct foreign affairs?

Mr. J. William Doolittle: Well there is nothing, there are no specific words in the Constitution covering the powers to regulate foreign affairs, that's right and that it is justifiable as an inherent power, a power that a sovereign government has to have in order to operate in the nation -- in a world of sovereign governance and we submit similarly just as all other countries recognize their own power to regulate citizenship in the national government, in the national state, that the Federal Government of United States has that power.

Justice Hugo L. Black: That's disturbing, because I had supposed that if there is anything it was settled in this country at an early date, the laws of the Federal Government had no power except that, which was expressly granted and granted by the necessary implications and the necessary [Inaudible].

Mr. J. William Doolittle: Well, our reading of the case is notably the Curtiss-Wright case.

Justice Hugo L. Black: Well what about reading of the Constitution?

Mr. J. William Doolittle: Well, Your Honor the constitution sought to, if you will, divide up or allocate the powers that might be allocated as between the state and the Federal Government, and our point is that the inherent powers of a sovereign government were never there for division between state and national government.

They are the powers of a national government and could scarcely be given to states other than sovereign states.

Justice Hugo L. Black: You have to look to something inherent that's not in the Constitution nor defined that the Federal Government has failed to make the treaty.

Mr. J. William Doolittle: Not to make treaties Your Honor.

Justice Hugo L. Black: Well what are they?

Mr. J. William Doolittle: Pardon?

Justice Hugo L. Black: What do they represent?

Mr. J. William Doolittle: Well, that is certainly part of the foreign affairs power Your Honor, but the general foreign affairs power, for example the power to make executive agreements and generally to conduct negotiations with foreign states, that had to be considered as an inherent power of any sovereign state.

We submit that the alternatives available to a Congress wishing to deal with the serious problem created by the gross inequality of treatment that I refer to, forced Congress, the exercise of the foreign affairs powers of the government to adopt the alternative of expatriation.

The other alternatives as Mr. Terris has pointed out were simply not acceptable, would involve the government in embroilments with other states and that it could not afford particularly in wartime and therefore that it was reasonable for Congress to adopt the procedure of expatriation.

As in Perez the termination of the fugitive's citizenship terminates the problem.

No more could gross inequality of service as between citizens of the United States sap the morale and effectiveness of the nation's fighting force, because those who would abandon their country no longer had citizenship.

Also as in Perez, there are elements of a transfer of allegiance in this act of expatriation; that Congress might quite reasonably regulate under its inherent power over citizenship.

Here we have a citizen abandoning his country, relinquishing his allegiance to this country in the time of its greatest need.

We have that act and then in addition we have the act of his interposing between himself and his own country, the sovereignty and protection of another country and we suggest that this is a genuine transfer of allegiance such that Congress clearly has the inherent power to regulate.

We submit that there is no due process infirmity in Dr. Cort's expatriation.

Dr. Cort's citizenship was tried out in a full de novo judicial trial.

The government had the burden of proof, the burden of proving that he had committed an expatriating act, and a high burden it is; clear, convincing and unequivocal evidence that does not leave the issue in doubt.

This is a standard that is closely akin to the criminal standard and we submit that it fully satisfies all requirements of due process of law.

We submit too that this act of expatriation, this provision making departure from the country to evade military service is not a punitive act.

We believe that its independent derivation to meet a specific wartime problem bespeaks its independent basis and its independent regulatory purpose.

In fact I might say that it was introduced by the Justice Department does not in anyway suggests that it has a punitive basis.

The Attorney General is the President's principle law officer and when he introduces legislation in Congress it cannot be said that he is simply speaking for the prosecuting branch of the Federal Government.

Justice Potter Stewart: Mr. Doolittle is there any independent legislative history behind this 349(a)(10) as contracted from 401(j)?

Mr. J. William Doolittle: Not at all Your Honor.

Nothing except as we've indicated to show that it was intended just to be carried over into the new statutes, but there is no independent focus on it of any --

Justice Potter Stewart: One-way reports.

Mr. J. William Doolittle: No, nothing like that Your Honor.

At issue of course in this case is the constitutionality and not the wisdom of an act of Congress.

The question is whether Congress had the power to deal with the problem of great moment and if so whether it's selection of the means for doing so was within the range of rational choice.

We believe the power and the reasonableness of Congress in acting Section 349(a)(10) are clear, but whatever doubts there maybe are we submit insufficient to overcome the presumption of constitutionality.

We submit that the judgment below should be reversed.

Thank you.

Chief Justice Earl Warren: Mr. Boudin.

Argument of Leonard B. Boudin

Mr. Leonard B. Boudin: Mr. Chief Justice and members of the Supreme Court.

There are as we see it four issues in this case.

First is the fundamental constitutional issue, that is whether or not Congress can take away citizenship by reason of a person remaining abroad for purposes of avoiding the draft particularly, although not necessarily limited to the factual situation here, where he is an American citizen by birth and where the result would be to leave him stateless.

This would be, if the Court were to reverse the Court below on the basic constitutional issue, the first case in the history of this country where an American citizen by birth was deprived of his citizenship through an act of Congress.

The second issue still before the Court despite the absence of comment by the District Court, is whether or not the presumption is a valid one.

Since I think we shall be able to show the Court that the presumption here was the basis of the decision which expatriated Dr. Cort, namely the decision of the Nationality Board and the Department of State, and since absent the presumption, we think there is an absence of clear and convincing evidence under the Mishawaka doctrine.

Our third point is of course that there is no clear and convincing evidence and the fourth is reliance upon the Huber and the Kurtz case, because in those cases, in one directly and in the other by adoption, the principle was laid down that constitutionally one could not be given a punishment such as the loss of citizenship under the 1865 Statute in that case, without a trial, whether it was a trial by a civil court or a military court, but a trial and not by a government administrative agency, an ad hoc group appointed in the Department of State.

While I have the highest regard for the individual members of that board, before which I appeared, they still do not represent a Court under our judicial system.

And now I want to briefly turn to the facts, because although I had intended to rest principally on the constitutional arguments and to show what has not yet been shown today, although it was so ably shown earlier by Mr. Davis in his first argument, that the 1865 Statute dealt with two problems; desertion and draft evasion and that the disposition of this Court in Trop necessarily required the same decision here.

But on a rereading of the record and a recognition of the fact that not only this case, but it is conceivable that the preceding case maybe decided on facts or could be decided on facts less than the constitutional issues.

I think I must address myself to the facts insofar as they have not yet been brought out.

Now I shall not repeat the counsel for the government so ably and for the most part accurately, except for one or two smaller things that I will try to correct, as stated as the facts in the case.

Dr. Cort, as the record shows and this is hardly a defense, is and was from a very early age an eminent physiologist.

He went to England not for the purpose of avoiding the draft, but for purposes of research work in the field in which he is extraordinarily competent and internationally known in the field of kidneys and physiology.

While he was there, he did have correspondence with Harvard Medical School and here the government is slightly in error as to the dates, because it was before he received his draft or notice, that Harvard suggested to him and Your Honors will read the record here, that there was not much point said Harvard in his coming there since although his department head thought he was necessarily and should be free from the draft, other people, the acting being different.

And so before he received the notice of February 9, 1953; the notice sent on that day and the Court will take judicial notice, it takes several days to get to England.

On January 31 the future head of Dr. Cort's department, this appears at 138 of the record, wrote him and said he thought it inadvisable for Dr. Cort to take the job and Dr. Cort concurred by letter dated February 10.

Then came the various notices and we have said we received those notices, although we have not stipulated as to when they were received, the notice is to report for examination and then finally came the last notice, the significant one upon which the indictment is based, that of August 13, 1953 directing Dr. Cort to report of induction on September 14, 1953.

Now faced with this, what did the Board of Nationality Review do?

It said that on December 29, 1952 Dr. Cort intended to teach at Harvard, and that there was no evidence that he had changed his mind between December 29, 1952 and February 9, 1953.

And therefore said the Board of Nationality Review, we rely upon the presumption that in remaining away in disregard of draft board notices, Dr. Cort remained away for the purpose of avoiding the draft.

The Board apparently as I have just looked at the original record, and I will confirm it tomorrow, did not have before it, the correspondence with Harvard, which would have explained that Dr. Cort did not on when he first received the draft board notice intend to go to Harvard because about ten days before that Dr. Cort had been told by Harvard that it didn't want him.

This was an administrative board hearing, it moved principally with oral argument from me and a few exhibits, and it is quite understandable, quite aside from the constitutional problems involved, that the Board was a little, shall we say sloppy at it's handling the problem and didn't have all the evidence.

It was later on when the matter came to the District Court that the government came out with the few more exhibits, the correspondence with Harvard, which clarified the Harvard picture, but hardly showed that Dr. Cort was remaining abroad for the purposes of avoiding the draft and so when the Court of Appeals and the District Court.

Justice Hugo L. Black: Do we have that issue to decide?

Mr. Leonard B. Boudin: I think Your Honor's may have that issue to decide.

Justice Hugo L. Black: Whether he was remaining away to avoid the draft.

Mr. Leonard B. Boudin: That is the -- that's the job of the government before it can expatriate Dr. Cort.

It must prove under 349(a)(10), the statute is set forth the pages two and three of my brief that Dr. Cort was remaining abroad for the purpose of avoiding the draft.

It must make that value judgment, a value judgment made by the Board of Nationality Review and by the District Court.

Justice Hugo L. Black: What did the District Court say about that?

Mr. Leonard B. Boudin: District Court said that in its view Dr. Cort had remained abroad for the purpose of avoiding the draft because said the District Court, he had intended to take a job at Harvard, which showed that he was interested in coming to the United States.

Justice Hugo L. Black: But wouldn't that be enough in the absence of any statement by him?

It seems to me like you've got very grave and important questions, and I wasn't -- up to this time I didn't suppose we had to consider this at all.

Mr. Leonard B. Boudin: Well I must admit Your Honor that I had concentrated on the constitutional issues up to now, but I do think that in view of the fact that Dr. Cort's affidavit, the only sworn document that there is here, is in the record, in which he denies having remained abroad for the purpose of avoiding the draft and that affidavit is not contested.

Justice Hugo L. Black: Would you deny that there's been a trial on that issue?

Mr. Leonard B. Boudin: Yes, I definitely deny that there has been a trial on the issue.

The only kind of a trial that might have occurred, which would have comported with the elements of due process would be a trial under the indictment of course for the violation of the Selective Service Act, and that trial has not yet occurred, and of course what occurred before the Board of Nationality Review could under no stretch of the imagination be considered a trial of the issue.

Justice Hugo L. Black: Well that raises a constitutional question in itself.

Mr. Leonard B. Boudin: I think it does and we come down to that --

Justice Hugo L. Black: And I referred to that in my -- one of my opinions and the opinion I wrote in Trop.

Mr. Leonard B. Boudin: Your Honor did, and we relied --

Justice Hugo L. Black: Relevant to a military trial.

Mr. Leonard B. Boudin: Except in Trop, Your Honor was dealing with a military trial and we haven't even had a military trial.

Justice Hugo L. Black: That's correct.

Mr. Leonard B. Boudin: This is one of the rare cases where I would not mind a military trial, we had no trial.

We merely had a Board sitting there on an ad hoc basis as I indicated, saying on the basis of the oral argument of counsel, correspondence between the parties, we think this man remained abroad, and we have come to the conclusion despite his sworn statement to the contrary that he has remained abroad for the purpose of avoiding the draft.

Unknown Speaker: Well I think they really say that he has failed to overcome the statutory presumption.

Mr. Leonard B. Boudin: They did Your Honor and of course I address myself to the statutory presumption next.

We think that the statute presumption is a perfectly irrational one falling before this Court's opinion in Tot and that --

Justice William J. Brennan: [Inaudible]

Mr. Leonard B. Boudin: Not a single word.

Justice William J. Brennan: Now that's the case [Inaudible] trial and no trail [Inaudible] what was the trail in the district court?

Mr. Leonard B. Boudin: District Court was a hearing upon affidavits.

Dr. Cort submitted elaborated affidavits in which he explained why he had remained abroad, a matter that I have not yet come to, but which I shall have to.

Justice William J. Brennan: What of the government?

Mr. Leonard B. Boudin: The government's case was, and he had correspondence with Harvard that he intended to have job at Harvard, and how can he say that he didn't want to come back to the United States?

Justice William J. Brennan: This is what the evidence was?

Mr. Leonard B. Boudin: Preciously.

Justice Hugo L. Black: Would you object to that kind of a trial, is that here?

Mr. Leonard B. Boudin: I think that I have an old point Your Honor, I'll indicate more clearly tomorrow, a claim that we were entitled to a full trial and that the statute did not gave the constitutional type of trial to which were entitled.

Justice Hugo L. Black: Even -- and what you're saying as I understand it is, that even the statute is constitutionally valid, they can't hide in the fashion in which they did on affidavits.

Mr. Leonard B. Boudin: I would add to that.

Justice Hugo L. Black: Is that it?

Mr. Leonard B. Boudin: Yes, but I would go a little farther.

It could not be constitutionally valid because the statute provides for no trial.

Justice William J. Brennan: Well this whole [Inaudible], this is a Fifth Amendment argument.

Mr. Leonard B. Boudin: Yes is it Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Leonard B. Boudin: That is correct sir.

Justice William J. Brennan: Is that it?

Mr. Leonard B. Boudin: That is correct.

Justice Hugo L. Black: Civil Rights and trial by jury might have something to do with it.

Chief Justice Earl Warren: We will recess now.

Print this transcript Transcript: 

Argument of Bruce J. Terris

Chief Justice Earl Warren: Number two, Robert F. Kennedy, Attorney General of the United States, Appellant, versus.

Francisco Mendoza-Martinez.

Mr. Terris.

Mr. Bruce J. Terris: Mr. Chief Justice may it please the Court.

This case is here on direct appeal from the United States District Court for the Southern District of California, under 28 U.S.C. Section 1252, which provides for the direct appeal -- for direct appeal to this Court when a federal statute has been held to be unconstitutional.

The facts in this case have been stipulated and are entirely undisputed.

Respondent was born in United States in 1922, and thereby became the citizen of the United States.

He was at the same time a citizen of Mexico, because both of his parents were Mexican citizens and he is until this day still a National Citizen of Mexico.

Respondent registered for the draft in California.

In the Fall of 1942, he left the United States for Mexico as the stipulation in this case states for the sole purpose of evading and avoiding training and service in the armed forces of the United States.

The stipulation further states the respondent remained in Mexico until November 1, 1946, for the same purpose, stipulation is on pages 33 to 34 of the record.

Meanwhile, on September 27, 1944 Congress enacted Section 401(j) of the Nationality Act of 1940, which provides for the expatriation of any citizen departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency, for the purpose of evading or avoiding training and service in the land or naval forces of the United States.

And after respondent returned to United States in 1946, he pleaded guilty to draft evasion in 1947, and was sentenced to imprisonment for a year and a day.

Deportation proceedings were then brought against respondent on the ground that he had expatriated himself, and he voluntarily returned to Mexico.

Respondent re-entered the United States in 1952, and new deportation proceedings were brought against him.

After he was ordered deported and the Board of Immigration Appeals dismissed his appeal he brought this action to have himself declared an American citizen on the ground of Section 401(j) was unconstitutional.

The District Court found that respondent came within the terms of Section 401(j), because he had remained abroad after the passage of the Act with a purpose of evading the draft.

The District Court further found that the statute was constitutional.

The Court of Appeals for the Ninth Circuit affirmed and the respondent petitioned this Court for certiorari in 1956.

The case was held for almost two years pending the determination by this Court of Perez versus Brownell, and Trop v. Dulles.

As is this Court remembers in the Perez case, this Court upheld the constitutionality of Section 401(e) of the Nationality Act of 1940, a statute which provided for the expatriation of American citizens who voted in foreign elections.

In the Trop case this Court held that Section 401(g) of the Nationality Act was unconstitutional, a statute which provided for the expatriation of deserters in war time, although there was no majority opinion for the Court.

The case -- this case Mendoza-Martinez case was then remanded to the District Court for reconsideration in light of the Trop case, this Court’s decision in the Trop case.

The District Court this time held that Section 401(j) was unconstitutional, because it believed that the Trop case was controlling.

The case again came to this Court, it was argued and this Court sua sponte remanded the case again to the District Court for consideration whether the government was collaterally estopped from asserting that respondent had expatriated himself because of respondent's 1947 conviction for draft evasion.

On remand the District Court held that there was no collateral estoppel and reasserted that the statute was unconstitutional.

This Court then noted the probable jurisdiction.

The case was argued last Spring and then set for re-argument in this term.

There are two issues in this case.

Chief Justice Earl Warren: Mr. Terris, may I ask you, if your position would be the same if this man were not a dual national?

Mr. Bruce J. Terris: Your Honor, we think the statute is constitutional as applied both to dual nationals and to stateless persons.

Chief Justice Earl Warren: Is that the administrative effect being given to it?

Mr. Bruce J. Terris: That is the administrative effect in that and Mr. Cort was involved in the next case to be argued here today is a stateless person.

However we think that at the very least this applied to dual nationals is constitutional, but I do want to emphasize very strongly, we think it's constitution as applied to all American citizens.

As I mentioned there are two issues in this case.

There is first the non-constitutional issue; whether respondent's 1947 conviction for draft evasion has a collateral estoppel effect in this litigation.

And the second and the constitutional issue, which the government appealed to this Court is whether Section 401(j) is in violation of the Federal Constitution.

Turning first to the issue of collateral estoppel; the basic principal of collateral estoppel was that parties are bound in subsequent litigation involving a different basic cause of action as to a fact which has been explicitly determined or at least necessarily determined in the prior litigation between the same parties.

And this is significantly different than the principles of res judicata for that principle bars entirely the prosecution of a second action, based upon the same claim as an earlier litigation and applies not only to issues which are actually litigated, but as to any issue which could have been litigated.

Now applying the principles of collateral estoppel here, we submit that there is not a slightest doubt that the issue of respondent's citizenship was not actually litigated and determined in the 1947 conviction of respondent for draft evasion.

Respondent pleaded guilty to the first count of the three count indictment and that count states and the indictment is on pages 24 to 26 of the record, that count states the respondent was a male person within the class made subject to Selective Service.

Justice William O. Douglas: If the government's position is right, that the violation of the act automatically deprives a person's citizenship, he wasn't a citizen at the time, was he?

Mr. Bruce J. Terris: He was not a citizen at the time he was convicted, that's right Your Honor.

But our argument is -- just about say Section 3, first of all our answer to that and I will come a little more fully to it in a minute, is that his liability under the statute came when he violated the Draft Act.

Now he may not have continued to be liable in 1947, that -- it's not important whether he was liable at the time he was convicted, it's important whether he was liable under the Act at the time he committed the offense.

Chief Justice Earl Warren: As when he left the country?

Mr. Bruce J. Terris: That's right, that when he left --

Chief Justice Earl Warren: If he had been a non-citizen at that time, had he committed any offense by going?

Mr. Bruce J. Terris: Well, probably yes Your Honor because Section 3 of the Selective Service Act makes the act applicable both to citizens and to resident aliens alike.

So that --

Justice William O. Douglas: But he was a non-resident alien --

Mr. Bruce J. Terris: Well not at the time he left the -- not at the time he left the country.

He was at least a -- he was at least a resident up until the time he left the country.

Now he may have continued to be a resident and that's one of the reasons we think there is no collateral estoppel here.

The fact that he was outside the United States does not establish that he was no longer a resident.

For example, for all we know he may have continued to have a house here.

There is nothing in the record either in this case or in the 1947 conviction as to any facts which show that he gave up residence in the United States.

Residence would depend upon a whole serious of facts such as whether he established a home in Mexico, as opposed to traveling around and similar evidence.

So we don't -- so even if he had not been a citizen in 19 --

Justice William O. Douglas: When would he have lost his citizenship, I'm little confused on the --

Mr. Bruce J. Terris: He lost -- he did not --

Justice William O. Douglas: When he left the country?

Mr. Bruce J. Terris: No, no Your Honor.

I think maybe I misspoke to Chief Justice.

He did not lose his citizenship when he left the country because Section 401(j) was not in effect at that time.

If it had been in effect, he would have lost his citizenship at that time.

But Section 401(j) was not passed until September 27, 1944.

He had been outside the country approximately two years at that time.

Justice William O. Douglas: So he lost his citizenship there?

Mr. Bruce J. Terris: When he continued to remain outside the country for the purpose of evading the draft.

Justice William O. Douglas: Then he was a -- not a citizen but he was -- is your theory that of a non-resident alien?

Mr. Bruce J. Terris: He was from --

Justice William O. Douglas: Therefore he couldn't be prosecuted unless he was a citizen under the Selective Service Act.

Mr. Bruce J. Terris: No, under -- in our view, he was not a citizen from the date of the Act until today, but through the period that the indictment covered which is until November 1, 1946 which is the relevant period.

Justice Hugo L. Black: When was he convicted?

Mr. Bruce J. Terris: He was convicted in 1947.

Justice Hugo L. Black: And you say that, that time he was not a citizen?

Mr. Bruce J. Terris: He was not --

Justice Hugo L. Black: And he was residing in Mexico.

Mr. Bruce J. Terris: Pardon me?

Justice Hugo L. Black: You say that he was not a citizen of this country and was residing in Mexico?

Mr. Bruce J. Terris: Well, Your Honor we don't know where he was residing, he was in the.

Justice Hugo L. Black: He was a non-resident alien, was he?

Mr. Bruce J. Terris: Your Honor the record --

Justice Hugo L. Black: At the time he was indicted for evading the Act.

Mr. Bruce J. Terris: Your Honor we don't know where he is a resident, the record is entirely silent where he was a resident.

All we know was, he was in Mexico.

Justice Hugo L. Black: Suppose he was a non-resident alien at the time he was convicted for violating the draft, was he rightly or wrongly convicted?

Mr. Bruce J. Terris: Rightly.

Justice Hugo L. Black: Rightly?

Mr. Bruce J. Terris: Because it's not important whether he was liable -- whether he was liable for continued service under the act at the time he was convicted.

The question was whether he was liable for service at the time he committed the acts that are of the subject of the indictment.

He committed -- he violated the Selective Service Act by leaving the country.

Justice Hugo L. Black: [Inaudible] any act as violated before September 27, 1944?

Mr. Bruce J. Terris: Your Honor I'm talking about the Selective Service Act, he violated in 1942, when he left the country, failed to report for induction.

Justice Hugo L. Black: 1942, what -- that's when he violated.

Mr. Bruce J. Terris: That's right, that's when he violated the Selective Service Act.

He was expatriated in 1944 when the Act, when the Expatriation Act was passed.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Well, may I answer that?

We have two answers to that Your Honor, even assuming that, that was the gist of count one, that was an important part of count one, there still would be no collateral estoppel because there is nothing there that indicates he was either -- that he was a citizen, continued to be a citizen, that is -- that cannot be ascertained from count one.

You know from the conviction in count one assuming that, that part of the count has -- is a real part of the allegations.

You can tell from that allegation that he was either a citizen or not -- or a resident alien from 1942 until 1946.

There is no indication, that he was a citizen as opposed to a resident alien and as I say the record before the District Court was entirely silent.

Justice Arthur J. Goldberg: Well the government [Inaudible]

Mr. Bruce J. Terris: That's correct but he may well have been for all the District Court knew a resident alien.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Well then our answer is assuming that there was clear evidence before the District Court that he was a non-resident alien, so that you -- then our answer is, that count one, to me the gist of the allegation in count one is he violated that Selective Service Act by leaving the country.

Now --

Justice Arthur J. Goldberg: In 1942.

Mr. Bruce J. Terris: In 1942 that --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: That the remaining in the country was to be considered surplusage and one of the reasons that we think this is true is that count one does not say that he remained abroad for the purpose of evading the draft, which would be required if that was one of the allegations on which he was convicted in contrast to saying that he left the country for evade -- for the purpose of evading the draft.

So it appears that all this is a statement as to the events that he did not meet the requirements of the Draft Act and he continued not to meet those requirements.

I would now like to turn to the issue of constitutionality of Section 401(j), which is the issue on which the government appealed to this Court.

I like to break this issue into two parts.

First I'd like to discuss whether there was any source of substantive power in the Constitution on which this statute may be based.

Second after showing, we believe that such a power does exist, I will discuss whether either the limitations of the Cruel and Unusual Punishment Clause of the Eighth Amendment or the Due Process Clause of the Fifth Amendment, restricts Congress, prevents Congress from exercising its substitutive powers.

But before discussing these broad issues I would like to emphasize the two basic principles underlying the government's entire argument.

The first principle is as this Court has repeatedly held, there is an extremely strong presumption that any statute which has been passed by Congress is a coordinate branch of the Federal Government, that such a statute is constitutional.

And the second principle is that a constitutionality of a statute depends not on any views as to its prudence or to its wisdom, but on whether Congress had the constitutional power to pass it.

As to the substantive power of Congress to pass Section 401(j), in the Perez case which this Court decided less than five years ago, this Court held that Congress has the power to expatriate American citizens.

The standard laid down by the Court for testing such a statute was that a rational nexus must exist between the content of the specific power in Congress and the action of Congress in carrying that power into execution or stating this same thought in terms of the Necessary and Proper Clause of Article One of the Constitution.

The question is whether the particular statute is necessary and proper for carrying into execution powers vested by this Constitution in the Government of the United States?

The government believes the Section 401(j) has a rational nexus and is necessary and proper to three powers conferred on Congress by the Constitution, the war power, the power over foreign affairs and the inherent power of every sovereign nation over its own citizenship.

We think it needs extremely little demonstration that Congress has broad authority under the war power to legislate concerning the draft, more broadly concerning recruitment of men in periods of war or national emergency, which is the only period which Section 401(j) covers.

The legislative history of this statute makes clear that both the executive branch and Congress were vitally concerned during World War II with the loss of manpower through citizens leaving the country to evade the draft.

Attorney General Bill told Congress, and this is the letter which underlies this statute, that over 800 draft evaders had left the United States for Mexico by 1944 from the western district of Texas alone.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: We don't have those.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Well the 800 as I say came from one district, I assume that district was probably the one in which the most had –-

Justice Arthur J. Goldberg: The border?

Mr. Bruce J. Terris: That's right, but this was only one district along the border, but I assume that was probably the district which was the largest.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Well --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: I'm not too knowledgeable about passport requirements, but I don't think you need a passport even during the war to get into either Canada or Mexico.

Justice Arthur J. Goldberg: I think it's part of the question.

Mr. Bruce J. Terris: Yes, well I think it was mainly to Canada and Mexico, that was the main problem.

I think it's fair to say that it was only a few thousand people at most that were -- that were probably involved under this.

Chief Justice Earl Warren: Do you have any idea how many draft evaders there were in this country who did not leave?

Mr. Bruce J. Terris: No Your Honor.

I want to emphasize and I'll come back to this probably several times during my argument.

We think there is a very sharp distinction between draft evaders in this country who just evade the draft and stay within our jurisdiction and those who go to a foreign country.

Chief Justice Earl Warren: But you don't have any information as to how many?

Mr. Bruce J. Terris: Well I'm certain I could get the figures as to the number of draft evaders. I do not have any at this time.

Justice Hugo L. Black: You mean there is a different constitutionally speaking?

Mr. Bruce J. Terris: Yes, Your Honor we think that there is sharp difference.

We think that the loss of thousands of potential soldiers in this way is directly relevant to the war power, not only because of the loss of manpower, but also because such wholesale escape from the draft is seriously unfair to the millions of other Americans who serve their country in war and this resulting any quality of sacrifice we think could well lead to the sapping of morale both in the armed forces and in the public generally.

Now the government's possible alternatives for meeting this serious problem were extremely few.

Draft evaders leaving the country could not be punished because they were not within the jurisdiction of the United States.

The Extradition Treaty with Mexico like most, if not all other American Extradition Treaties, did not and does not provide for the extradition of draft evaders.

Therefore the government would have been required to make representations or even put on pressure on Mexico and other foreign countries in order to secure the return of the draft evaders who had fled to them.

At the same time, the draft evaders were necessarily looking to the countries where they have taken refuge for protection.

As a result, we submit that the United States and other countries particularly Mexico were likely to be drawn into serious conflict.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Your Honor, the only difference between what --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: -- that possible statute and the actual statute was that there was no notice specifically given to each individual draft evader.

However, I think there can be a very little doubt under this Court's decisions if that distinction does not make a constitutional difference.

There is no indication in Mackenzie case and the Savorgnan case where this Court held that a person had been expatriated, it was admitted -- at the District Court unfounded it and was therefore assumed in this Court that the --

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Yes, but I'm saying that for constitutional purposes, we'll be here with the same case if Congress would pass that statute.

That statute would also have involved probably considerable problems with trying to locate people in another country and in itself might have given rise to conflicts with the other countries.

Chief Justice Earl Warren: I suppose it is important to pay for a war as it is to fight it, and I wonder if a man left the country to evade paying a million dollars or so in taxes if he could have his citizenship evoked.

Mr. Bruce J. Terris: Your Honor, the Government emphasized it very strong and we do not think that they fall into the same category and this Court has quite cleanly emphasized in the number of cases --

Chief Justice Earl Warren: What is the great difference, do you not think that --

Mr. Bruce J. Terris: I'm not trying to make any comparison --

Chief Justice Earl Warren: A million dollars in -- and the tax payment might be as helpful to the government during the war as the services of an eighteen-year-old draft evader.

Mr. Bruce J. Terris: Your Honor, I think it's extremely important.

I would come back to what this Court said in the Selective Service Cases that service in the armed forces is a supreme and noble duty of every American citizen.

Chief Justice Earl Warren: We are taking there about punishment, not about taken the citizenship away.

Mr. Bruce J. Terris: No, I think that statements only meant to be what is the duty?

Now it happens that case went onto discuss --

Chief Justice Earl Warren: But isn't it an equally important duty to pay your share of taxes to win a war?

Mr. Bruce J. Terris: Well, I suppose it -- you can get it, you can get little more values here.

I would submit and I think that the cases of this Court indicate that service in the armed forces in times of national emergency is a more important duty.

Now, I would argue Your Honor --

Chief Justice Earl Warren: Just because it was more important, do you think that makes a constitutional difference?

Mr. Bruce J. Terris: Your Honor, I think that it would -- that Congress could take away citizenship for persons not paying their taxes and leaving the country in time of war to --

Chief Justice Earl Warren: Oh, I thought you said, you didn't believe that?

Mr. Bruce J. Terris: No, I did.

I think Congress has that power.

I think that this is a clearer case.

Chief Justice Earl Warren: Yes, I just wanted to know --

Mr. Bruce J. Terris: But I think that I -- we believe the Congress has this power.

Chief Justice Earl Warren: Yes.

Mr. Bruce J. Terris: We think that the possibilities of conflict with foreign nations is increased when many draft evaders seek the same country as the place of refuge and of course as I have indicated this is exactly what section 401(j) was intended to meet, this was the underlying problem.

Most of these people as Mr. Justice Goldberg has indicated went to one or two countries and in addition the country -- the possibilities of conflict were increased even more because the statute mainly applied to dual nationals and of course, the countries of refuge would almost automatically protect their own citizens as we have frequently done in similar situations.

Now the immigration service figured show that section 401(j) is mainly applied to dual nationals and mainly to Mexicans, because every litigated case as far as we know with the exception of the Court case as I've indicated will be argued next has involved a dual national.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: You mean we can just do nothing.

Your Honor, we don't -- we did -- we don't --

Justice William J. Brennan: If that's the fact, unless the United States will make the [Inaudible]

Mr. Bruce J. Terris: Well, there is another possible conflict, which I will come to in a minute that I think would arise anyway, but we don't think that the foreign affairs power of this -- United States is a sovereign country depends on us doing nothing in situations which are of extreme importance to the country.

Now as I've indicated, the war power -- another war --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: There would -- the embarrassment as this Court indicated would arise even -- it might very well arise even though we did nothing.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: Yes, Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: I agree Mr. --

Justice William J. Brennan: [Inaudible] not going have any conflict with foreign affairs power and the American Government demands a return of [Inaudible]

Mr. Bruce J. Terris: Mr. Justice, I agree with you on the distinction, but I don't think it makes a difference.

The reason I don't think it makes a difference is, because I don't think the foreign affairs power of United States means merely some kind of a defensive action to try to prevent embarrassment in Italy when somebody votes in an Italian election or in Mexico when somebody votes in an Mexican election.

The foreign affairs power of the United States and one which Congress has the power to legislate under means the right to protect the sovereign rights of the United States.

Now we were in the midst of a war.

People were going across the border to escape the draft.

There was a loss of man power; there was a possibility of loss of morality because of this escape.

I don't think that the foreign affairs power only means that we could keep quiet and therefore have no conflict with anyone because we kept quiet.

But in addition, there is another possible conflict and that is with dual nationals, particularly dual nationals, but resident aliens too, going across the border to Mexico who are of draft age during the time of war, there was an extremely good possibility that they would be constricted by Mexico or another country, which they -- in which they sort refuge.

In this kind of a situation, the United States would be called upon to give them protection.

This isn't just the theoretical problem, just exact questions, exact problem arose during the civil war when Americans left the country to evade the draft and then the United States was called upon to give them protection when their country of refuge attempted to conscript them.

Justice William J. Brennan: There is nothing, there is nothing imminent about the -- about giving any diplomatic protection which requires [Inaudible] take the citizenship away from them.

Mr. Bruce J. Terris: Your Honor, we can --

Justice William J. Brennan: We can, we had in the past.

Mr. Bruce J. Terris: We have done so in the past.

I think however that this not -- this is not normally that this particular remedy is not a very good one.

The reason it isn't is because when a policy is attempting -- when a country is attempting to maintain a policy with a neighboring country such as Mexico -- to tell Mexico it's okay to draft some people, but it's not okay to draft other American citizens is not a policy --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: Okay, is it dual nationals then --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: As a matter of international law they would, but we have still made representations in the past as a matter of history to try to get American citizens who were dual nationals --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: The Government submits that, that this statute well of course could not remedy all the problems which I have indicated, was of considerable benefit in remedying some of them, because the unfairness of sacrifice between American citizens was ended because draft evaders who left the country were no longer American citizens.

They no longer could claim equal rights with other Americans without assuming their fair share of the obligations, and the possibility of conflict over the draft problem imposed by other countries was ended because since the draft evaders no longer were American citizens they were no longer entitled to protection.

I'd like to pause briefly at this point and emphasize the similarity of Section of 401(j) with the statute, which was upheld in the Perez case and the lack of similarity between Section 401(j) in the desertion statute that was held unconstitutional in Trop.

I have emphasized that the point of draft evaders is likely to involve complications with other countries.

In Perez, this was the ground principally relied on sustaining the statute.

In Trop, there was absolutely no connection with the foreign countries at all.

Chief Justice Earl Warren: Why wasn't it?

Mr. Bruce J. Terris: Because the statute as Mr. Justice Brennan, I believe pointed out, his concurring opinion did not even -- was not restricted in anyway to desertion in a foreign country or fleeing to a foreign country.

Chief Justice Earl Warren: Where did Trop desert from?

Mr. Bruce J. Terris: He deserted for I believe a single day in Algeria Your Honor.

Chief Justice Earl Warren: In Algeria and where did he go, to America?

Mr. Bruce J. Terris: No.

Chief Justice Earl Warren: He was in Algeria -- why wouldn't that involve our foreign relations just as much as this Mexican boy who went down to a friendly nation.

Mr. Bruce J. Terris: Your Honor, there are two answers there.

First of all, the statute as a whole was not directed to people that were in Algeria.

Chief Justice Earl Warren: I wasn't talking about --

Mr. Bruce J. Terris: It is Trop and --

Chief Justice Earl Warren: I wasn't talking about statute, I was talking about the factual difference and --

Mr. Bruce J. Terris: Well, if that's the actual facts of Trop.

He deserted in a country which was under American occupation or at least -- there was no possibility of any conflict in that case.

Now it may be -- I really -- our cases which one could be a deserter and could involve foreign affairs problems, but this Court emphasized what Mr. Justice Brennan emphasized that the statute was not directed to foreign affairs problems.

Now secondly in Perez, this Court emphasized that the voting of American citizens in foreign elections embarrassed United States and therefore, taking away citizenship ended the problem as I have indicated as to at least two of the problems involved in draft evaders leaving for foreign countries, the taking away of citizenship, hence that problem.

Third Mr. Justice Brennan, noted in the Trop case that expatriation appeared to have a little additional effect in detouring deserters for expatriation could only occur after there's been a court-martial and the court-martial have the power to impose long imprisonment or even death.I

n contrast, this statute does not apply to people who have been convicted by a court-martial by any other Court of Law.

It applies only to people who are outside the United States and it cannot be extradited.

Therefore the only remedy that they -- obviously they could not be punished at all, certainly not by death and the only remedy that Congress had before is the possibility of expatriation.

And finally, Justice Brennan again in the Trop case noted that the loss of citizenship was severe and particularly that statelessness would likely be solved and he therefore suggested that these facts indicated there should be a stronger connection between expatriation and the power conferred by the constitution.

But the severity of this statute is substantially less than the severity of the desertion statute involved in the Trop case.

Here as I've indicated that normal situation is that of a dual national who still as a citizen of the country in which he himself took refuge

Chief Justice Earl Warren: But you made no constitutional distinction between him and the person who is not a dual national and how about the statelessness of the man who is not a dual national who is in the same circumstances as this man?

Mr. Bruce J. Terris: Your Honor, we think that the statute is properly applied to both.

We think it is even more clear that it's properly applied to --

Chief Justice Earl Warren: I so understood it to be –-

Mr. Bruce J. Terris: -- to the dual national.

Chief Justice Earl Warren: What is the constitutional difference then?

If one is more clear than the other constitutionally what is the difference?

Mr. Bruce J. Terris: The difference -- one of the differences is at least Mr. Justice Brennan thought there was a difference depending on severity, how close the power conferred by the Constitution is to expatriation.

He thought that because of the severity of the desertion statute, the Government was required to show a closer connection.

Now if that is true --

Chief Justice Earl Warren: Would you say this was severe the punishment that can be extended to a man?

Mr. Bruce J. Terris: The normal situation is not severe, no Your Honor.

Chief Justice Earl Warren: What is -- what is the maximum he can be punished for?

Mr. Bruce J. Terris: Let me go back -- the maximum think that can happen to him, we do not concede is punishment.

The max --

Chief Justice Earl Warren: I beg your pardon.

Mr. Bruce J. Terris: We do not believe it is punishment.

The maximum severity of harm, the harm that can result and the worst that can happen is a person who is stateless and has no connection whatsoever to any country we do not think that will rise frequently, if at all under the statute that my colleague will discuss the problems of statelessness under the statute in the Cort case, because that's where it is directly involved.

But the large majority of the cases involve people who will not be stateless at all, and we think the statute should be considered on that basis.

Chief Justice Earl Warren: I know, but in this case as in the Trop Case, he could be punished for leaving the county.

Mr. Bruce J. Terris: Your Honor, I don't know whether I've you spoken before, but we do not believe this is punishment.

Chief Justice Earl Warren: I beg your pardon.

Mr. Bruce J. Terris: I don't know whether I have misspoken before, but we do not believe this is punishment.

Chief Justice Earl Warren: Didn't the sponsor of the bill thinks so, Chairman Russell?

Mr. Bruce J. Terris: Pardon me?

Chief Justice Earl Warren: Didn't Senator Russell oppose this?

Mr. Bruce J. Terris: Senator Russell, the Senate had very little to do with this bill at all.

It arose in the house.

Chief Justice Earl Warren: They passed it, didn't they?

Mr. Bruce J. Terris: Yes, he set the penalty too, but as far as characterizing him as the sponsor I was only trying to explain that.

He mentions I think the word penalty twice.

We think that this is the kind of loose talk, which is often used, for example, with the regard to the fraud penalty in tax litigation.

This court held that was a civil remedy.

Chief Justice Earl Warren: Didn't the Attorney General recommending that there is mention on the line of punishment or penalty.

Mr. Bruce J. Terris: No, he did not say it was the penalty and --

Chief Justice Earl Warren: All right.

Mr. Bruce J. Terris: The principle that they had occurred in the house, there is no mention of any penalty or punishment or anything or punishment or anything suggesting penalty or punishment in the house.

Justice William O. Douglas: I just happened to be reading Attorney General's letter --

Mr. Bruce J. Terris: Yes.

Justice William O. Douglas: He says while such persons are liable to prosecution for violation of the Selective Service Act if and when they return to this country, it would seem proper in addition they should lose their United States citizenship.

Mr. Bruce J. Terris: Yes.

Justice William O. Douglas: It seems like in terms of penalty --

Justice Potter Stewart: Differentiating the two, isn't it.

Mr. Bruce J. Terris: That's right.

Justice William O. Douglas: Adding to the penalty of going to jail.

Mr. Bruce J. Terris: Well, there were two consequences, I agree.

The same thing you might say that in addition to going to jail when you are convicted of a felony you lose your right to vote, but I don't think that shows the right to vote, the loss of the right to vote is punishment.

Justice Hugo L. Black: Technically speaking -- legally speaking.

Mr. Bruce J. Terris: Legally speaking.

I would like to come to punishment a little more fully later on.

And now I just consider the third source as substantive power on which we believe this statute can constitutionally be based, the inherent sovereign power of every country over its nationality and its citizenship.

This Court said a long time ago in the Wong Kim Ark Case that every independent nation has the inherent right to determine for itself and according to its own Constitution and laws what classes of person shall be entitled to its citizenship, and the same kind of thought was repeated in the Mackenzie Case in 239 US.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: Well, they are not in those terms, but of course we were relying on the Necessary and Proper Clause.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: No, it does not, but this Court has not construed the Fourteenth Amendment as preventing expatriation in the Perez Case, Savorgnan Case and several other cases.

In fact, the majority of the Court even in the Trop Case does not say that there is no underlying power of Congress to expatriate persons.

We submit that Congress can use the power over nationality and citizenship to impose a duty of allegiance, meaningful allegiance on American citizens.

In the Luria case, this Court stated that citizenship is a membership in a political society and implies a duty of allegiance on the part of the member and the duty of protection on the part of society.

Chief Justice Earl Warren: We'll recess now.

Mr. Bruce J. Terris: Your Honor, at the intermission I was discussing the source of constitutional power held by Congress over citizenship and nationality.

And I was alluding in particular to the Luria Case decided by this Court, which describes the obligations of citizenship in the -- the same time the obligations of this country to its citizens.

Justice William J. Brennan: What's the citation?

Mr. Bruce J. Terris: 231 United States, begins at 99, I am going to quote from page 22.

The Court said that citizenship is a membership in a political society and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society.

Well, when these are reciprocal obligations, one being a compensation for the other, we submit the respondent has broken this mutual compact and therefore that Congress could reasonably provide that he was no longer a citizen.

Short of treason and the like, we believe that section 401 applies to conduct, which is at the furthest extreme from allegiance to the United States.

The persons which come under the statute have first of all deliberately evaded, what this Court has said and I indicated before we rely on the statement --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: Yes, there is Your Honor.

First of all, the draft evader has evaded as I have indicated the supreme and noble duty of every citizen to defend his country in time of war and national emergency, but draft evasion is not sufficient for expatriation under the statute.

The draft evader must leave the jurisdiction of the United States for the purpose of evading his duty.

We think this point means two things.

First of all, it means that the draft evader is taking himself outside of the jurisdiction of the United States and is completely abandoning his country in time of great danger and we think that the flight means something else.

It means that the draft evader is placing himself within the jurisdiction and under the protection of a foreign country.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Your Honor, I think it would have been possible to make that kind of a determination and that's which make that the case go off in that, that is not what the District Court found and I don't think there is any ground which would allow for expatriation on that basis.

We think that the statute -- as I've indicated before, we think this statute applies to dual nationals and everyone else.

We think at the least it applies constitutionally to dual nationals.

Justice Arthur J. Goldberg: [Inaudible] major problems here is dual nationals --

Mr. Bruce J. Terris: That's correct Your Honor.

That's correct.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: I don't want to overstate the facts in this case.

There was no proof in this record that when he went to Mexico he intended to give up his American Citizenship.

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Your Honor -- yes, Your Honor.

We think that Congress could reasonably determine that when a person does this, it is that he is choosing that his primary allegiance is to another country, that's right and we think that would be enough to sustain the statute as applied to Mendoza-Martinez.

However, I would -- the Cort Case which is going -- which is also going to have to be decided by this Court involves different facts, although we think that the situation in Court is not materially different that he too chose a foreign country voluntarily and that -- but it –-

Justice Arthur J. Goldberg: [Inaudible]

Mr. Bruce J. Terris: Well, it involves the successor and there is no legislative history of the successor indicates any different than this one.

I think that as far as the statute is concerned, it has to be treated the same.

Justice William J. Brennan: Mr. Terris did I correctly understand that the government's position is that statute [Inaudible] draft and that has sole purpose [Inaudible] that is without regard to what may have been the motivation of the draft [Inaudible] that to embrace another citizenship although --

Mr. Bruce J. Terris: Yes, I think I stated that to Mr. Justice Goldberg.

We don't think there is any evidence in this particular case then when he went to Mexico, he intended to give up to --

Justice William J. Brennan: Even if there was I thought your position was --

Mr. Bruce J. Terris: That's right.

Justice William J. Brennan: That Congress constitutionally could impose expatriation for draft evasion whether or not the draft evader intended to renounce American citizenship and embrace another citizenship.

Mr. Bruce J. Terris: That's correct, just as the same problem was involved in McKenzie.

Justice John M. Harlan: That it would have applied equally here [Inaudible]

Mr. Bruce J. Terris: Exactly, Your Honor.

We -- and we think that under the Mackenzie case, the Savorgnan case, the Perez case that it's not important whether he had an intent.

However, we think that as to dual nationals there is even more clearly, was it reasonable for Congress to say that people in this situation have chosen their country of primary allegiance, whatever their subjective intention is, it's immaterial.

Their subjective intention maybe that they like the United States better than Mexico.

But as a matter of the objective facts that they have chosen, they have manifested allegiance to another country and that as applied to Mendoza-Martinez and the large group of people that -- the largest group of people under the statute, Congress could reasonably find that they had a stronger allegiance to another country and should not be allowed to have -- to continue to have American citizenship.

In summary on this point we think that what Congress determined here whether the person was a dual national or not however, in either event, what Congress has said is that these people have given up all meaningful allegiance to the United States.

And therefore the United States need not continue to give the benefits of American citizenship to people of this type.

We think that Congress can reasonably say such a person who abandons his country in foul weather cannot obtain the benefits of citizenship in fair.

And this is approximately what Attorney General Biddle told the Congress in submitting this bill.

He said that persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds, and of course existing grounds were those which were in the original 1940 Nationality Act.

And the same kind of statement was made by Congressmen Dickstein, the sponsor of the bill in the house on the floor of the House of Representatives.

Now again I'd like to pause and emphasize the similarity of this -- of the connection between 401(j) to the inherent powers over citizenship that existed in Perez and the dissimilarity as far as this connection is concerned with the statute, the desertion statute in Trop.

In Trop Mr. Justice Brennan said that desertion is often a technical offense and indeed in the Trop case itself, the particular person involved, might well be regarded as merely a technical violation of the desertion laws.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: That's right.

It was the -- it was the next day he -- had been away just a day.

We submit that leaving the country for evading the draft is always an extremely serious offense.

Now the second ground why this is like -- why this is unlike Trop is that in the Trop case Justice Brennan compared desertion as I've indicated before to failure to pay the taxes and said that failure to pay taxes in desertion bore essentially the same relationship to allegiance to one's country.

As I've indicated before we do not believe this is true.

We think that the duty to serve one's country is on a higher level, but even accepting the fact that it is true, persons that come under Section 401(j) are not just draft evaders.

They are people who have left the United States and we think that they are leaving the United States for a foreign country shows the inconsistency of any real allegiance to the United States.

And thirdly in the Trop case the statute applied to persons with no connection whatsoever with any other country.

Therefore the most that one could say in Trop was that the person, the deserter had given up allegiance to the United States, but here we think that the statute applies to people in which it can fairly be said, particularly as to dual nationals, but we think to everyone, that they have indicated considerable allegiance to another country as well as lack of allegiance to the United States.

Justice Hugo L. Black: Would that make any difference in your judgment as to the power of Congress?

Mr. Bruce J. Terris: Yes, Your Honor we think that, that -- that under this third source of power, the inherent power of Congress over a citizenship and nationality, that Congress has the power when it -- to decide that a person has lost his citizenship when it can fairly be said that he has manifested lack of allegiance to the United States.

As I indicated in the [Inaudible] cases that there was a compact between the citizen and his country, they have mutual obligations.

And if that is true, when a citizen has seriously violated his obligation to his country, we think that Congress has the power to decide --

Justice Hugo L. Black: That's what I meant.

You are not placing that on the idea that Congress can presume or find as a matter of fact that a man has voluntarily abandoned citizenship if he hasn't.

Mr. Bruce J. Terris: We do not rest the statute on any finding by Congress that all people who go to Mexico have voluntarily given up citizenship, anymore than in the Savorgnan case that, that matter.

There it was admitted that the woman involved did not intend to give up her citizenship.

This Court said that she preformed an act, which under the statute was grounds for expatriation and it did not matter what her subjective intent was.

Justice Hugo L. Black: Would it make any difference to your argument, that this was what you would call technical or legal punishment for a crime?

Would you say that Congress does not have the right to take away a man's citizenship for serious crime?

As I understand it your argument is broad enough to -- but even if it was so called technical or legal punishment.

Mr. Bruce J. Terris: Your Honor I'm basing my argument on an entirely different proposition.

In Trop, the Chief Justice's plurality opinion stated that this was punishment, the desertion statute, made expatriation punishable and it was a violation of the Cruel and Unusual Punishment Clause.

Now if this was punishment, then as I'm about to get to, we would run into the problem, whether this was cruel and unusual punishment.

Justice William J. Brennan: You would also run into problem of [Inaudible]

Mr. Bruce J. Terris: We would also run into the due process problem, that's right, Your Honor, we would run into both problems.

But we think we run into --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: That's right, it's not like it.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: That's right, Your Honor and that's why I say we rest on entirely different ground, we say that that --

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: I think we would be lost in any case other than this one.

In the last part of brief we argue that this person, that Mendoza-Martinez has been convicted so that it's as a matter of --

Justice William J. Brennan: Well that --

Mr. Bruce J. Terris: In the law -- that's right.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: We would -- no, you do not have.

And you don't have it; you wouldn't have it in most case to be frank.

Justice William J. Brennan: [Inaudible]

Mr. Bruce J. Terris: That's right, that's right.

If this is the punishment, Court has not received a criminal trial.

Justice William J. Brennan: May I ask you this Mr. Terris, if I understand [Inaudible]

Mr. Bruce J. Terris: No, I didn't mean to say that.

Congress has the power to ascribe to certain conduct that a person can be expatriated, that's right.

I don't --

Justice William J. Brennan: [Inaudible] expatriation there is nothing in the record [Inaudible] other voluntary --

Mr. Bruce J. Terris: Subjective intent to abandon his country?

Justice William J. Brennan: Yes.

Mr. Bruce J. Terris: No, and I think that's the explicit holding of the Court, as I say in the Savorgnan case and Perez case for that matter, the McKenzie case and another cases in dictum.

Now turning to the cruel and unusual punishment --

Justice Potter Stewart: Before you do turn to that, where do you find this inherent power of Congress over citizenship and nationality?

Mr. Bruce J. Terris: Where does.

Justice Potter Stewart: I understood your argument on the foreign relations power, that's an explicit power and on the war power, that's an extremely explicit power.

Where do you find in the Constitution of the United States this so called inherent power?

Mr. Bruce J. Terris: In the Curtiss-Wright case this Court said that the Federal Government has all the power of sovereignty which are normally to the -- which other sovereignties have.

Now the power over nationality is one of those powers of sovereignty you'd think, as I've quoted a statement from Wong Kim Ark case saying that, that says approximately just that.

There is another statement in McKenzie in here that is approximately to the same effect, that this is what every country in the world believes to be one of its inherit sovereign powers and the Curtiss-Wright case I think establishes, as well as McKenzie in here and Wong Kim Ark, that this is a power like all other inherent powers of sovereignty.

Justice Potter Stewart: Well I didn't understand that.

Chief Justice Earl Warren: What are the --

Justice Potter Stewart: I thought excuse me, excuse me.

Chief Justice Earl Warren: I was just going to ask what other countries do provide for expatriation?

Mr. Bruce J. Terris: For expatriation, almost all countries provide for expatriation for different types of problems, of activity.

Chief Justice Earl Warren: I thought there are only a few of them that did.

Mr. Bruce J. Terris: I don't believe so Your Honor.

Well, I have a list of a large number of, kind of -- it depends on the -- they are different acts, different acts of -- now as to this particular act, I think there are, I forgotten the names, I think there were couple countries that specifically provides this --

Chief Justice Earl Warren: Turkey and Philippines.

Mr. Bruce J. Terris: I think that's right.

And then there is a much broader group of countries as to naturalize citizens have such a broad grounds for taking away their citizenship that it would probably cover this kind in the act -- pretty commonwealth for example.

Chief Justice Earl Warren: They make the distinction -- they make the distinction between naturalized and native born?

Mr. Bruce J. Terris: Yes, they have Your Honor.

I think however that distinction is the Court will probably later see in the Schneider Case.

It might be the -- has constitutional problems of its own.

So the fact that Congress decided to be even handed with all American citizens I don't think that -- should in anyway make this statute less constitutional.

Justice Hugo L. Black: [Inaudible] power argument you are making is rather disturbing to me.

I had an idea that the Constitution was adopted, the express purpose was to limit its power of the national government to those specifically granted of our necessary implications from the Necessary and Proper Clause.

Mr. Bruce J. Terris: Your Honor, this Court's opinion in the Curtiss-Wright Case is directly to the contrary as far as --

Justice Hugo L. Black: You think that case would cause us to hold that the Federal Government has power over and beyond those expressly granted to it by the states and the original constitution are granted under the Necessary and Proper Clause.

Mr. Bruce J. Terris: Your Honor, the Curtiss-Wright Case is -- I submit is as explicit on this, on this point as it can possibly be.

It says, domestic matters Your Honor's description of the powers of the Federal government is precisely accurate.

Justice Hugo L. Black: Now, the other Court expressed several objections to that case and that gives me a new one.[Laughter]

Mr. Bruce J. Terris: Well, I think -- I think Your Honor will find that I'm accurately describing it.

It is to -- as to foreign affairs that power did not come from the states at all because the states did not have the power over foreign affairs, they were not sovereign.

According to the Curtiss-Wright Case that that power came from England to the --

Justice Hugo L. Black: Power came from England or --?

Mr. Bruce J. Terris: England to the --

Justice Hugo L. Black: We just had a riot with England.

Mr. Bruce J. Terris: The sovereign power in this country was first in England then under the Articles of the confederation in the confederation and then came to the Federal Government, it never passed through this.

Justice Potter Stewart: Well then this inherent power argument really is the foreign affairs argument?

Mr. Bruce J. Terris: Well it is a branch of it in one sense Your Honor.

Foreign affairs, I have emphasized conflicts with other countries for the inherent power over nationality I think it's immaterial.

Justice Potter Stewart: Assumingly correctness of Curtiss-Wright, this is limited to our conduct in international affairs and so this third -- so called third argument is really a branch of your first argument, isn't it?

Mr. Bruce J. Terris: Curtiss-Wright is a little broader than that.

It says not only foreign affairs but all those powers normally held by sovereign nation in the international law.

Justice Potter Stewart: In the international law.

Mr. Bruce J. Terris: That's right.

Justice Potter Stewart: But a relationship generally, I should think between a sovereign nation and its citizens and on the question whether or not a person is a citizen would be a domestic matter, would it not?

Mr. Bruce J. Terris: Well certainly in terms in the first instance that's right Your Honor.

However, the power of nationality in the Federal Government, in the government, in the nation as a whole, in the confederation before we think was passed, as I say directly under Curtiss-Wright to the Federal Government.

Now, I agree with you Your Honor that it comes from the same source just like the foreign affairs power.

I'm only emphasizing the difference for one purpose.

I'm assuming arguendo for this point that there was no conflict with Mexico.

There would be no conflict with Mexico.

Even so we think that the Federal Government has the power of deciding, the Congress has the power of deciding, the people that so manifest lack of allegiance to the United States and even allegiance to a foreign country may have their citizenship taken away just as they -- because they have broken the compact in essence.

Turning briefly to the Cruel and Unusual Punishment Clause, our argument is based on the fact which we think is relatively clear that this statute was not intended to impose punishment, and we think the applicable standard was laid down by this Court very recently in forming a nester.

And there the Court stated that only the clearest proof could suffice to establish the unconstitutionally of a statute on the ground that a punitive purpose in fact lay behind the statute.

Judicial inquires and the congressional motives are at best a hazardous matter and when that inquiry seeks to go behind objective manifestations becomes a dubious affair indeed.

Moreover, the presumption of constitutionality with which this enactment like any other comes to us, forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it.

Now, this Court has held in many cases that even very severe harm coming to individuals is not punishment.

The Court has held deportation is not punishment.

Denaturalization which is very similar after all to expatriation in as to its effect is not punishment, disbarment and as I have indicated, the fraud penalties as they are called in tax cases.

Therefore, we think these cases and especially in Flemming and Nestor established that even very severe measures do not constitute punishment if Congress is regulating an area within its substantive powers.

Now, I have argued extensively that this statute is related to regulation the Congress may properly exercise as Military, foreign affairs, and citizenship.

In addition, we think the terms of this statute make quite clear the punishment was not intended.

It is unlike the Trop statute.

Here the statute does not depend on conviction by any Court.

In fact it doesn't even depend in the same elements of a crime for which a Court can convict because as I have emphasized draft evasion does not constitute ground for expatriation only if a person leaves the country or remains aboard for the purpose of evading the draft.

And finally Your Honors, we think that unlike in Trop there was a considerable basis in Trop for saying that desertion statute was the same as the 1865 statute.

In 1865 statute there was fair amount of evidence that it wasn't intended for purposes of punishment and the legislative history of the desertion statute in 1940 shows that it was a continuation of the 1865 statute that is not true of this statute.

This statute was not even in existence from 1940 until 1944.

The draft evasion statute in 1865 was repealed in 1940.

In 1944 on the basis of new purposes and new problems, Congress enacted this statute.

Now, Attorney General Biddle alluded to the fact that there was a precedent that there had been a statute of this kind before, but he did not say that this statute was merely for the same purpose and had -- and was a continuation of the earlier statute.

We therefore submit that the judgment involved should be reversed.

Chief Justice Earl Warren: Mr. Davis.

Argument of Thomas R. Davis

Mr. Thomas R. Davis: Mr. Chief Justice, honorable members of the Court.

As seven members of the Court know I have been with this case for sometime and looking at it simply from the point of view of one who has become deeply interested in the constitutional problem, naturally I would hope that we will reach a resolution here of the underlying constitutional problem.

Unfortunately, I don't have the luxury of proceeding that way, I'm a lawyer with a client and there are very strong preceding arguments which must be made, which could well prevent this Court from reaching the constitutional problem.

Representing Mr. Mendoza, I bring those arguments with, I hope with the same conviction as I bring the later ones.

The Court will recall that the present remand is actually for the trial Court to consider the issue of collateral estoppel, which was raised sua sponte from this Court.

We therefore take considerable temerity on my part to tell the Court what theory is since the theory came from a Court.

There was, however, in the colloquy that took place between counsel for the Government and the Court, a little confusion it seem to me remaining when it was done.

It wasn't quite certain at least to me as a listener, what act it was that the Government was supposed to have done, which we now assert estops it from denying the citizenship of Mendoza, and therefore for the purpose, perhaps of only clarifying my own mind may I state briefly the collateral estoppel theory as we understand it.

There is a conveniently even set of dates 1942, 1944, 1946.

Mendoza left in 1942.

In 1944 while he was in Mexico, the Section 401(j) was passed.

In 1946 he returned to the United States.

Subsequently of course in 1947 he was convicted.

Now the indictment and the judgment of conviction both charge him with departing and remaining outside of the United States to avoid the draft from 1942 to 1946.

So, that a quantum of the offense is established, it isn't one day or one week its four years, 1942 to 1946.

But if as one of the members of the Court pointed out earlier, in 1944 Mendoza was instantaneously denationalized then the offense was impossible for him to commit from 1944 to 1946.

Justice William J. Brennan: Unless he was a citizen.

Mr. Thomas R. Davis: That's right Your Honor, but under 401(j) if it were effective he would not have been a citizen.

So, we assert that by charging Mendoza with a quantum of offense from 1942 to 1946, the Government is now estopped to deny that he was not a citizen during that period or to put it otherwise, the Government is estopped to deny that he ever lost his citizenship.

Now, the Court sent this back to Judge Jertberg to get his views on it.

Judge Jertberg opined that although he could understand the argument, he couldn't see that it was -- there was any real substance to it for this reason.

If the offense had been committed for five minutes or 10 minutes or a year, it still would have been draft evasion and he would have been convicted of it, whether he is convicted of it from 1942 to 1946 or 1942 to 1944, which is what we assert would have been required to prevent this estoppel.

Well, I can understand Judge Jertberg's position, but I think he fell into error for this reason; every indictment sets forth sufficient facts to permit the Trial Court to understand the total quantum of offense.

It would be a rare case indeed where the District Attorney or the United States Attorney merely accused a man in an indictment of stealing money.

He'd say, he stole a $100 or he'd say, he stole a million dollars and he would expect that the Trial Court would have that fact very much in mind when the Trial Court rendered the judgment in the case or at least pass sentence, granted the guilt is there or not there.

But the extent of the offense would then be for the Court to consider in the passing of sentence.

Now, Judge Yankwich, Chief Judge at the Yankwich of our Southern District tried the criminal case.

There was a plea of guilty so there wasn't much to the trial.

Judge Yankwich imposed a sentence with an indictment before him showing a four-year offense.

We submit that it is a reasonable inference that Judge Jertberg had in his mind a four-year offense as opposed to a two-year offense.

Therefore the United States has -- we are not merely doing hyper technical logic chopping here, there was something real in Judge Jertberg's mind when he sentenced this man to prison.

He sentenced him for a four-year offense.

We submit that it is a fair inference that he would have been moved to mitigate that sentence, if he had known that the offense had not continued after 1944 or had been limited to two years.

Judge Jertberg took cognizance of my argument and he said there is nothing in the record to sustain it.

I submit that there doesn't have to be anything in the record in that sense.

That it's a reasonable inference that every Judge infixing the penalty takes into account the extent of the offense.

It seems to me also if the Court please that this Court can reasonably hold in favor of Mendoza on the basis of stare decisis in that Trop is not distinguishable upon any substantial ground.

To me the attempted distinctions are two; one is that 401(j) involves the offense of leaving the Untied States, and the second is this question of dual nationality.

Now, with all respect to able counsel, I was not sure when the government finished whether the government fully conceded that this element of dual nationality is no longer before the Court or whether it didn't.

So I'm going to have to proceed as if it is still before the Court although it seems to me that the government conceded more in this direction than they ever had before here.

But first let me turn to the other branch of the attempted distinctions from Trop leaving the United States.

It's been pointed out before and the Chief Justice has been one of those who has pointed it out, that the tax evader, the thief or anybody else leaving the United States is essentially on no different ground if international problems are created.

They're probably going to be created by the presence of such an offender now within those borders and as Judge Jertberg as I crossed to point out, there is no showing here, but that Mendoza was not a peaceful resident of Mexico throughout his term there.

So that I submit that it is very difficult to see that the leaving of United States injects an element into this case which should distinguish it from Trop.

It seems dubious that the government had anything like that in mind in the first place, if the Court pleases.

Let's look at how they framed the statute.

They didn't say any person entering any foreign state shall commit something, they simply said leave the United States.

Now, that could mean going out in the middle of Lake Michigan for all of that and I hope the Court won't take me as being facetious, but it could mean that going beyond the 10 mile, limited an ocean going vessel.

If the government seriously was concerned with the presence of these draft evaders within some foreign state, it would seem reasonable that they would have said so and if they wouldn't have picked this awkward phraseology in the negative.

The other branch of this question of distinguishing Trop as dual nationality, I think the Court has heard enough argument.

I could tell from the questions of Mr. Justice Goldberg and Mr. Justice White that they have also had it brought to their attention.

I have a few comments to make because there is other ground to cover and I don't want to spend too much time on it.

But should we not emphasize in the first place that this question of dual nationality is one which is imposed by foreign governments by their laws, by their enactment's, rather than by any decision or act either of the individual within the United States or much less any act of the United States government.

The -- as I -- I've said before in this Court, the British Parliament tomorrow can pass a law and say that we're all still citizens of England and I guess we will be if they say so.

Now, are we pay to -- then say that if the British Government picks some category of us and says you are now British citizens that we are a class of citizens to be distinguished from the rest of us and isn't that all it really is to it?

Of course Mendoza comes from a certain racial strain which identifies him in physical looks with those people of Mexico, but he was born in Kern County, California.

Let us imagine also the situation of the American citizen who is also a dual national of China.

Now, what would that mean to him by a way of substantial benefits, how would that better his position if he were thrust out into the world.

Can we not well imagine reasonably that if a person of Chinese descent went to communist China and said, “Hi, I'm an American citizen and I'm also a citizen of China” that the net reward that he would reap for this would be to be hung by his thumbs or whatever else they thought out for him.

The idea that dual nationality ipso facto and without any further showing, means that there is another homeland, another haven out there some place simply can't be sustained in this 1962 world and that it seems to me is a real heart of it.

There has been something I have brought to the attention of the Court before to hold the record.

I brought to the attention of the Court at the instance of Mr. Justice Whitaker and that is the fact that we know as a matter of fact by virtue of a communication from the Mexican counsel in Fresno purporting to speak for the Mexican Government that even Mexico wouldn't accept this man, if he had clearly renounced his Mexican citizenship in favor of his American citizenship.

Now, it isn't competent evidence and I have no way of knowing how I could get to the government, the President or whoever of Mexico and get an expression, which might be accepted as competent evidence.

I even went to the length before this present argument of importuning Mr. Dean Acheson to make an approach which he might be able to make much more effectively than I could.

He replied that he didn't think it was appropriate and I certainly can understand his feelings about it.

Certainly, I never would undertake such an approach without at least getting permission of the State Department.

For my own part the argument lacks strength because I don't think there is any reality to it, that dual nationality doesn't necessarily mean there are two homes in the first place, but because there has been attention given to it in this Court, I have made that effort.

Justice Arthur J. Goldberg: Why do you suppose your client went to Mexico?

Mr. Thomas R. Davis: Well, I know why he went to Mexico Mr. Justice Goldberg, because I have stipulated to that, I am bound by it.

He went to Mexico to avoid the draft, there isn't any question about that and if there were I couldn't raise it now.

And this --

Justice Arthur J. Goldberg: You don't think he had a greater attachment to Mexico and then just left?

Mr. Thomas R. Davis: I think it was a geographical accident.

The Mexican people who come from via lower valleys in California have hundreds of relatives down here.

He ran there because that's where haven was, just the way a Kentucky boy goes back into those Kentucky hills, that's where the haven and the protection is and to Mendoza, that's where his was.

If he had been living in some other part of the United States was more remotely removed from his ancestral beginnings, he would have avoided the draft by going some place else.

Justice Arthur J. Goldberg: Would it be logical to assume that if we had nothing successful in the war that his attachment to Mexico would have been a little deeper than you indicate?

Mr. Thomas R. Davis: I don't think so, sir.

I can answer that unequivocally.

I think further that the record is totally devoid of any showing even that Mendoza knew he was a citizen of Mexico, much less was choosing.

But Mr. Justice Goldberg, that diverts me to a point, which has been raised here in the past by Mr. Justice Stewart and I don't think that on that later occasion I did a sufficient job of arguing.

What he has asked me in the past and what really essentially you're asking me now, is whether it isn't possible to postulate this entire case in term of Perkins versus Elg and so forth.

That is that the Government has a right to designate certain Acts, which if performed indicate without more an objective desire to relinquish nationality.

And Mr. Justice Stewart, the lapse of time is the reason for my limited answer to that question on the last occasion.

Back in 1955, I wrote a special amicus brief devoted solely to that one single point, in the case of Daniel Castaneda Gonzales versus Landon and it was in the October term of 1955, it may be that the clerks can again make that brief available but let me say briefly this about it now.

Justice Hugo L. Black: What was the number of the case?

Mr. Thomas R. Davis: 111, Your Honor.

The heart of this short brief, which I wrote on the subject then, is Heiner versus Donnan 285 U.S. 312, in which this Court struck down the device of the conclusive presumption unless it can be shown that the fact which is relied upon to give rise to the presumption is in and of itself conclusive.

And to say it another way so that there would be no misunderstanding, this Court went further and said that constitutional safeguards are not to be avoided by the device of the constitutional presumption.

Now, it's necessary to go one step further into other decisions of this Court.

It is absolutely true that this Court has repeatedly said in cases like Savorgnan that they will go behind the doing of the Act and find out whether in the back of his or her head, the person in question intended to give up the citizenship, but in the Savorgnan case and the other related cases in that field, the act, which was done, was itself conclusive and by that I mean simple renunciation in writing of American citizenship in favor of Canadian citizenship or acts of like character.

Now, in those cases I think the Government was right and the Court was right in saying, we will not go behind such a simple and unequivocal act of relinquishment of nationality, but if Mr. Justice Stuart please, that isn't what's happened here.

They've tried to extend those sensible, logical cases by taking a thoroughly equivocal act, an act from which any number of reasonable inferences can be drawn and say just because we say so, if you do this you lose your citizenship, and that is the vital difference.

I have developed this thought a little further in this older brief in Gonzales.

Justice John M. Harlan: What's the name of that case?

Mr. Thomas R. Davis: It's Gonzales verus Landon Your Honor.

Chief Justice Earl Warren: In 1955.

Mr. Thomas R. Davis: Yes Your Honor, but even --

Justice Hugo L. Black: Is that --

Mr. Thomas R. Davis: I'm sorry Your Honor.

Justice Hugo L. Black: -- case?

Mr. Thomas R. Davis: The citation.

Justice Hugo L. Black: The Tot case, not the Tot, but one that Justice Roberts wrote --

Mr. Thomas R. Davis: Perkins versus Elg.

Justice Hugo L. Black: Tot, T-O-T.

Mr. Thomas R. Davis: I don't remember it Your Honor, I am sorry.

I didn't -- I don't believe I cited it in his brief no.

Well I'm not yet at an end however of my attempt to bring to the intention of this Court, those basis on which it can decide in a favor of Mendoza without reaching the question of the ultimate powers of Congress, because if we can show here that this is a penal statute and Mr. Justice Black, we mean a technically penal statute, if we can establish that the Government's cause is done, we can show that there was manifestly no procedural due process of law as we understand it in criminal proceedings and we bring into play fully and without any limitation, the doctrine of cruel and unusual punishment, but the threshold to all of this is the question of whether this is in truth a penal statute.

We have had this out before and perhaps members of the Court will member that Mr. Justice Frankfurter and I had a rather brisk colloquy on the subject, which went on for sometime.

May I bring to the attention of all of the Justices, because I have to keep in mind that two members of the Court were not present at that time, those elements, which we believe show that this is a penal statute and I mean a technically strict penal statute.

In the very first place, expatriation and deportation from the United States is nothing more nor less than the ancient punishment of banishment or ostracism.

It goes back to the beginnings of organized society.

It was one of the first punishment that men every thought off for themselves and yet as we begin to civilize ourselves and to introduce more modern standards of law, we abolished this punishment as a particularly cruel and unusual one, as one which was not befitting imposition by civilized men.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: Oh yes Your Honor that's --

Justice William J. Brennan: That's why you told that.

Mr. Thomas R. Davis: That's right.

Justice William J. Brennan: Suppose you might not have had solid ground [Inaudible]

Mr. Thomas R. Davis: That's correct Your Honor.

I have to reach to the record for support to show that this actually does involve deportation as well as the loss of the status of citizenship, but if the Court please, that's almost self executing, because (a) he committed a felony, (b) you make him an alien, (c) he becomes a deportable alien under the terms of the McCarran Act.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: Oh!

Yes Your Honor it always has.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: I think that's correct.

In any event this action was instituted by me to head off a deportation proceeding, which was then in progress.

Justice William J. Brennan: Well indirect proceeding or deportation --

Mr. Thomas R. Davis: It was completed but –-

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: That's right and he has been ordered to deported, but the government has not executed upon that order because of my declaratory relief action.

It therefore seems to me ironic if the Court pleases that we should be here in 1962, talking about a statute being regulatory, which imposes in its practical effect a punishment, which was so primitive in its characteristics that the Anglo-Saxon world has long ago abolished it.

Now despite the agility of counsel for the government, he was unable to show equally that the Civil War statutes from which these derive were not penal statutes because that the Courts call them this and by inference this Court called the 1965 statutes penal.

More than that as the Court has pointed out in colloquially with counsel, both the house and the Senate clearly indicated a penal intent with respect to the imposition of this statute.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: That's right, Your Honor Huber versus Reily.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: That's right, Your Honor.

Right.

Justice William J. Brennan: But this Court I remember had said that.

Mr. Thomas R. Davis: No, but I think in Kurtz it as much said it.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: That's right.

That's correct, but it has not so squarely held that's correct.

The other important thing it seems to me is the source of this statute, where did it come from?

Did it come from the State Department to implement Mexican relations?

Did it come from the Pentagon to implement the war effort, it did not.

It has been clearly shown here that the source of this statute is the Justice Department.

It was an effort by the Justice Department to do what it thought was best to enforce the Draft Act.

And when the Justice Department requires or asks, requires is certainly the wrong word, asks of Congress an additional tool or a weapon for the enforcement of an otherwise penal statute, surely it appears on its face that the last bit of the facade has disappeared and that this is a penal statute.

Common sense also it seems to me requires it, to send this man to jail for a year and say, that's your punishment for that, and then to come after him, a year after he's finished his term and say, now you also left the United States in the commission of that same offense now we're going to take away your citizenship for that and deport you, but that's not penal is to stretch credulity.

This is -- this Court lives in a world of reality.

I don't think its going to buy that.

If we are right in this, if these cumulative elements, which I have suggested to the Court, show that this is in truth and in fact a penal statute, then the government's case as I have suggested must fall, because there was no trial by a jury.

The burden in the first instance to bring this action was placed upon the petitioner, rather than as it properly should have been upon the government.

The statutes did not provide for the other safeguards which are traditionally given to a defendant in a criminal action.

Equally is the last shred of distinction between Trop and this case destroyed by virtue of the same argument.

And Mr. Justice Brennan's concurring opinion in Trop is brought into full play, if we have shown that this is a penal argument and I submit that we have.

Justice Arthur J. Goldberg: Does your argument lead to the conclusion that any kind of deportation is penal because the consequences are just as bad, are they not?

Mr. Thomas R. Davis: Your Honor any kind of compulsory deportation, yes.

Justice Arthur J. Goldberg: In any kind of a situation?

Mr. Thomas R. Davis: No, I think this.

I think that the -- it is within the power of Congress to state those acts which in and of themselves conclusively show an intent to voluntarily relinquish nationality and if that act can be shown in a civil proceeding to have been done then I would say no, it's not a compulsory process.

If, I say this with a little reluctance because of my overall feelings in this, but I think it's necessary for me to concede it to give logic to my argument.

However, where Congress has gone beyond the traditional form of compulsory -- I'm sorry, voluntary relinquishment of nationality and entered into the field of using the device as a punishment, then, yes, whatever the offense is there should be criminal trial.

Justice Arthur J. Goldberg: What if Congress had specified here that anybody who knows he has dual nationality, who live -- is living in the country where he has nationalities, dual nationality and who stays in that country for one year, six months after he is called up for selective service, looses his nationality, would your argument still reach that, knowingly -- knowing the element being present in all the case that I've indicated?

Mr. Thomas R. Davis: Your Honor I don't think it's necessary to reach that here, but since your question requires me to reach it, I would still argue against such a statute because I don't think that the requisite intent would be shown to be made out even if the man knew that he has such a citizenship.

Now if the --

Justice Arthur J. Goldberg: You think voting is more of an intent than that?

Mr. Thomas R. Davis: Yes.

Suppose the statute -- did Your Honor's question encompass the element that in addition to knowing that he was a citizen of the second country that he intentionally went there to take advantage of that citizenship?

Justice Arthur J. Goldberg: No I did not go that far, I said he was there, but he remains there after a statute, which says that if you stay another year there during time of war and do not report back, you will then lose your nationality.

Mr. Thomas R. Davis: It would be a lot closer question than this one, where we do not have those elements present if the Court please.

I have not yet reached the question of what the inherent powers of Congress are and of course I should again deal with those thoughts as time permits me to.

I remember the first time this question of war power came up with Mr. Justice Stewart, he said it was not a very good way to raise an army, and it seems to me that his first reaction on that -- at that first argument in 1959 states pretty succinctly the sum and substance of this.

It really is not an effective weapon to accomplish the purposes alleged for it even if we adopt the fiction that it was enacted for that reason in the first place.

We know why it was enacted, the Justice Department asked for it, but if we go into the fiction that we were thinking about the enablement of the government's war effort at the time.

I still submit that there has been no showing whatever by argument or by any other reference to show that this was the slightest talk to the war effort.

Justice Potter Stewart: Well there is the argument that so much more subtle than the remark you attribute to me, that the argument that the morale of those people who stayed here and who did submit to the draft and who did serve at the risk of their lives their nation, it might have been pretty badly impaired had they known that their fellow citizens, that have evaded the draft simply by fleeing to another country with impunity and then beyond the jurisdiction of this nation to punish the guilty, there is that argument that's been made this morning as I understood it.

Mr. Thomas R. Davis: Yes.

First, I think it's also been well established by Mr. Justice Goldberg's questions that the extent, the total extent of this offense was infinitesimal in comparison with the total war effort.

Secondly, would it really have a benefit to the morale unless the person we are going to return, let's think about the fugitive.

If the fugitive has left and is going to keep ongoing, would it make any of us feel any better that we had taken away his citizenship, what would he care he is gone, he intends to stay gone, but let's suppose he changes his mind and decides to come back.

Now when he arrives at those gates we have him again and we can shoot him if we choose.

We can give -- we can use any measure of penal sanction that we wish to.

The factor of the improved morale only occurs when we do something to him that he doesn't want us to do to him.

If he has gone for a good he isn't going to care, if he comes back we can punish him a lot more effectively than by this.

Justice Hugo L. Black: I've been trying to think it for myself, you'd get along better with that, not a joint issue of that, I recall during the First World War, a man who left, dealing the soldiers during the war and after the war, but that man finally came back.

It seemed to me like you could -- your argument is just as strong without, trying to refute the idea that a lot of soldiers would really resent the fact that the government didn't try to get somebody who had run off to keep [Inaudible]

Mr. Thomas R. Davis: I see Your Honor's point.

Of course my answer is that the government could him.

Justice Hugo L. Black: My views as of before of course have been expressed.

Mr. Thomas R. Davis: Yes I understand that.

Justice Potter Stewart: The point is that you come back after the shooting is over.

Mr. Thomas R. Davis: Yes, but you can also be also be shot for it Congress choose is it do to you.

Justice Potter Stewart: No, there is no such tension.

Mr. Thomas R. Davis: No, but there could have been Mr. Justice Stewart.

Justice Potter Stewart: Well that would have been something else.

Mr. Thomas R. Davis: Yes that's right.

But there could have been.

Justice Potter Stewart: Be sent to prison for what, a maximum of five years.

Mr. Thomas R. Davis: That's right.

Justice Potter Stewart: That's comparative --

Mr. Thomas R. Davis: But while I'm referring Your Honor to the concurring opinion of Mr. Justice Brennan when he said there are other things we could have done which would have been more effective.

In effect, I'm agreeing with him by saying yes there indeed are.

We could have adopted a conventional penal statute of greater magnitude which would have punished this man to a point where the question of morale or any other question would have been fully satisfied.

Justice Potter Stewart: That's also to a point where there will never been any possibility of his coming back.

Mr. Thomas R. Davis: Possibly, but then would that make any difference, if he was going anyway we wouldn't care.

Unknown Speaker: And what is the question?

Mr. Thomas R. Davis: The -- certain comments of the Court in relation to the application of the foreign affairs power have led me to believe that I can do well to go on to a final position which I have urged here before.

I'd like in the minutes remaining to me if the Court please once more to try to reach across these arguments, to urge upon the Court the possibility that we can burst out of this thicket that we have been in all these years and out into the sunlight once again if we take a strong clear position as to the meaning of the word citizenship itself.

What is citizenship?

What is to be a citizen as opposed to be a government?

And I urge upon this Court the concept that in effect we're back at the time of Marbury versus Madison again.

We're back when decisions were being made by this Court which established the nature and extent of the various basic components of this country.

In Marbury of course it was the Court itself which was asserting its own power, but on various early occasions this Court, because it's the only instrument to do so, the only instrument that can do so, has stated a basic position as to the power of the component itself.

Now I speak of the two largest components of all, the component of the citizens and the component of government.

And this in a democratic theory is a contractual arrangement.

The citizens say to their government you can govern but only in such terms and conditions as we set out and the great contract, the United States Constitution is made.

And I urge upon this Court once more the thought that the status of citizenship itself must stay beyond the power of Congress to destroy, because if Congress can destroy the status then Congress has destroyed the contract.

If there is no opposite contracting party, there is no contract anymore, to shoot him is one thing, but he goes his last mile as a citizen, to destroy his status is to destroy everything.

The Chief Justice has said it in different way and in a different light, but it bears upon the same thought.

What does it matter how hard we work to protect the basic freedoms in the Bill of Rights, if we give to Congress the right to take them all away through the back door by this device of the involuntary relinquishment of nationality.

Justice Potter Stewart: Are you are relying on the Fourteenth Amendment in making that argument or not?

Mr. Thomas R. Davis: I think it goes deeper than that Your honor.

Justice Potter Stewart: First sentence of Section 1 of the Fourteenth Amendment.

Mr. Thomas R. Davis: It certainly bears upon it, but I think it goes deeper than that.

I think it goes to the very basis that this country was formed on before there was a Constitution.

Justice Potter Stewart: Your argument -- your present argument that require certainly overruling the Perez case and probably also --

Mr. Thomas R. Davis: Not quite.

Justice Potter Stewart: And probably also Hare and Savorgnan.

Mr. Thomas R. Davis: Your Honor, no I don't think so, because Savorgnan was an act which was equivocally a relinquishment.

Hare to me with all deference and due respect is an equivocal case.

I can't read it and come to final conclusions over it.

But now about Perez, I don't think this Court need overrule Perez, even though as an interested lawyer I wish the decision had been otherwise.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: Yes.

Yes, Your Honor.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: Yes.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: Yes.

Justice William J. Brennan: And all of these things together that could be done and [Inaudible]

Mr. Thomas R. Davis: That's right Your Honor.

I think I can illustrate it by one specific illustration.

Suppose Congress had passed a law that says -- that said that after you serve your term for draft evasion and are set loose in the United States again you shall never again have the right of free speech, this Court would strike that statute down in a minute and yet there isn't any real essential difference between what's happening.

The other things that Your Honor has mentioned are privileges, affirmative privileges of citizenship, certain of the bonuses that come with it and surely it is established that the Congress has a right to limit those, but to takeaway the status itself is to takeaway the basic freedoms and that's what the Chief Justice was saying.

Justice William J. Brennan: [Inaudible]

Mr. Thomas R. Davis: No sir I think, if there is a basic element to citizenship it's right to be here, always.

Justice Arthur J. Goldberg: Could we say -- could it be said you don't have a right to have a passport except to return to the United States?

Mr. Thomas R. Davis: Yes.

It could Your Honor.

Justice Potter Stewart: Well some will say a basic element is the right to travel from here.

Mr. Thomas R. Davis: That's right and we never can destroy that, because that goes back long before these present statutes that are in dispute, the right of voluntary relinquishment, certain opinions to --

Justice Potter Stewart: Free movement too.

Mr. Thomas R. Davis: That's right.

Justice Potter Stewart: Well I don't quite get it, if you put this in terms of a contract; you say that there is something absolutely invulnerable about citizenship as such --

Mr. Thomas R. Davis: That's right.

Justice Potter Stewart: -- so far as involuntary action by the sovereign goes, but that a sovereign can deny diplomatic protection to a citizen abroad?

Mr. Thomas R. Davis: Yes he can.

Justice Potter Stewart: Well isn't that also a breach of the contract if there is a contract?

Mr. Thomas R. Davis: No that's a sanction.

To destroy citizenship is to destroy the basic status itself, not one of its bonuses or exterior attributes.

Justice Potter Stewart: Well I don't quite get that.

I honestly understand it, because it seems to me just a matter of degree on a difference in time.

If you take away one-by-one each of these so called privileges, you end up with maybe somebody who is -- if you want to label him a citizen, you can, but he hasn't got any of the rights or privileges.

Mr. Thomas R. Davis: He has got a right to be here and that's what the Chief Justice said in Trop, that the essence of citizenship is the right to be here, the right to remain here, even if you've taken away these other exterior attributes and the contract remains intact, because what you've done to him short of that point is to impose sanctions upon him, which are entitled to impose.

Justice Hugo L. Black: You certainly take away his right to vote as I understand.

Could they take away his right to talk?

Mr. Thomas R. Davis: No that was the statute that I --

Justice Hugo L. Black: Why, if they can take away the others?

Mr. Thomas R. Davis: Because that is an inherent -- there is nothing in the Bill of Rights, which gives a man a right to vote.

But it is one of the basic American freedoms to express oneself freely, this Court would never tolerate a statute, which took away freedom of speech.

Justice Hugo L. Black: But that's not --

Mr. Thomas R. Davis: After release from incarceration.

Justice Hugo L. Black: [Inaudible]

Mr. Thomas R. Davis: Sir?

Justice Hugo L. Black: Not because it's inherited, because the Constitution says that you should have right to do that.

Mr. Thomas R. Davis: Well that's right, I agree with that and I think it's implicit in the Constitution.

Justice Hugo L. Black: What you understand was the object of putting it, right to citizenship in the Fourteenth Amendment.

Mr. Thomas R. Davis: Exactly that Your Honor.

Justice Hugo L. Black: Have you reviewed the record on that?

Mr. Thomas R. Davis: Not of recent years Your Honor, but I certainly think that the reading of it, particularly as this Court spoke in Wong Kim Ark, and I was astonished to hear the government bring that case to the Court's attention again.

I don't think that 1898 Court would have decided this case any other way than as I urge it, that the Fourteenth Amendment gives to the Congress the right to confer citizenship and not the power to take it away.

Justice Hugo L. Black: It did not, in that amendment of course seek to define what would be the rights of this citizenship that they gave, but they left that to be developed.

Mr. Thomas R. Davis: They did.

Justice Hugo L. Black: According to the constitutional -- within the constitutional limitation.

Mr. Thomas R. Davis: They did Your Honor, certainly.

And certainly what we're doing here today is a part of that developmental process.

Thank you Mr. Chief Justice.

Chief Justice Earl Warren: Very well.