RUSK v. CORT
Legal provision: Immigration and Naturalization, Immigration, Nationality, or Illegal Immigration Reform and Immigrant Responsibility Acts, as amended
Argument of Oscar H. Davis
Chief Justice Earl Warren: Number 20, Dean Rusk, Secretary of State, appellant versus Joseph Henry Cort.
Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.
This is another case that involves, at bottom, the constitutionality of a provision of the statutes relating to expatriation for leaving the country to avoid military service.
The statute involved here is not Section 401 (j) of the 1940 Nationality Act which was involved in the preceding case but Section 349 (a) (10) of the Immigration and Nationality Act of 1952 which, in respects pertinent here is precisely the same as the earlier statute.
There are three issues before the Court, one is the jurisdiction of this Court because the Court did not note probable jurisdiction and reserved the question for the hearing on the merits.
The second issue, a non-constitutional issue also, is whether this action could have been brought at all by the plaintiff in the lower court.
It was brought as a -- under the Ordinary Declaratory Judgment Act and under the Administrative Procedure Act and the question is whether under the statutes which now exist in the 1952 Act, there is not a special exclusive procedure under Section 360 of the 1952 Act which Doctor Cort, the appellee here was required to follow and did not seek to follow.
And the third question is the constitutionality of the statute, the expatriation statute as applied to the appellee here.
First, in accordance with the instructions of the Court and its rules, I address myself to the jurisdiction of this Court, the question which was reserved in the order on jurisdiction.
This was a three-judge court which was convened because the plaintiff expressly and explicitly sought to enjoin the enforcement by the Secretary of State who will refuse to passport to Doctor Cort on the ground that he was not an American national, sought to enjoin the Secretary of State from enforcing the provisions of the expatriation statute.
Three-judge court was convened, the three-judge court held that the statute was unconstitutional and was indicated in the argument yesterday in the preceding case.
Congress had provided that when any court of the United States holds a federal statute unconstitutional there is direct appeal to this Court under 28 U.S.C. Section 1252.
Unfortunately, the Government did not, in its notice of appeal or its jurisdictional statement, refer to Section 1252 rather we refer to 1253, which relates to appeal to three-judge courts but I think that our slip does not deprive the Court of jurisdiction and the Court clearly has jurisdiction.
We would think also that the Court has jurisdiction under the appeal from the three-judge court provision but I won't take the time of the Court due to limited time for argument to spell that out.
I think we do in our brief.
As I mentioned at the outset, this is --
Justice Charles E. Whittaker: We will have jurisdiction even with only one judge for (Inaudible)
Mr. Oscar H. Davis: That is right and that was exactly the case in Fleming against Nestor which was referred to yesterday.
The action here is for a declaratory judgment and injunctive relief under the ordinary declaratory judgment, the regular declaratory judgment proceeding.
It arises out of the fact that Doctor Cort applied to the Secretary of State for a passport and the passport was denied on the ground that Doctor Cort was no longer an American citizen and to test -- to challenge that administrative determination, this here was brought in the District of Columbia against the Secretary of State to establish the fact that Dr. Cort is an American citizen.
The case was decided in the District Court on cross motions for summary judgment; there was no oral testimony or no hearing.
There were appended to the respective motions for summary judgment affidavits, documents, many documents and affidavits and -- prior to administrative proceedings and the Court rule on the basis of the summary judgment motion.
Now, what the District Court, the three-judges' District Court rule was this; there were three facets to its ruling.
First, they said that Doctor Cort did have the right to pursue his ordinary declaratory judgment remedy that he was not required to follow the procedure of Section 360 of the Nationality Act, that's a question I will come to immediately.
Justice William J. Brennan: He was abroad?
Mr. Oscar H. Davis: He was abroad, that is right sir.
They held that he did have that right.
Secondly, as a matter of fact, they held that he had left or remained abroad to evade the draft.
They found that under the standard of clear, convincing and unequivocal which this Court laid down in the Nishikawa case --
Justice William J. Brennan: That question opened here, do you think?
Mr. Oscar H. Davis: I think it is not open.
Justice William J. Brennan: Would it not be in connection with the principle against avoidance of constitutional determination?
Mr. Oscar H. Davis: Well, the difficulty I have with that Mr. Justice Brennan is this, the appellees do not in their brief as far as I read it, raise that issue at all.
They would of course be allowed to support the judgment below on any ground.
But to support the judgment below, they would have to argue that the evidence or the test -- the material before the District Court show that Dr. Cort still remains an American citizen that is, he did not go abroad to evade the draft to remain abroad.
They do not make even the slightest suggestion of any such crime.
The most that they suggest is that that the testimony was vague and should be re-canvassed perhaps at a fuller hearing, but they -- on that issue that is, if they were to take position that the case should go back for a full trial on the merits, I think they have foreclosed because they did not cross-appeal and they would not be supporting the judgment below if they would urge upon this Court to remand for a full trial on the merits, that is that the case should not have been decided on summary judgment.
Justice Felix Frankfurter: Any effort made -- any effort made after the disposition by the District Court to open up the so called factual question?
Mr. Oscar H. Davis: No sir, no.
The -- no effort was made by --
Justice Felix Frankfurter: Any suggestion that summary judgment isn't a good way of summary --
Mr. Oscar H. Davis: No --
Justice Felix Frankfurter: -- or specifically test here (Voice Overlap) --
Mr. Oscar H. Davis: No, there was -- there is -- there was no suggest -- suggestion in the District Court as I read the appellee's brief here, there is no suggestion of that here.
That was the factual issue which was decided by the trial court then the Court did go on to decide the issue of the constitutionality of the statute and they held the statute invalid.
Now, what are the facts which in our view and in the view of the Court -- the District Court, this record shows, Dr. Cort was born in Boston, Massachusetts in early 1920s.
He went to school there partially at Harvard and then he entered Yale Medical School from which he graduated in June 1951.
It maybe of some significance that he had registered as a regular selective service registrant and I make this distinction because this case involves a registration for the doctor's draft but he had registered under the ordinary selective service to which all young man are subject and he had been deferred or rejected for physical reasons or for because he was married or because he was a student but he graduated Yale in June 1951 and he decided not to take an internship in this country but to go abroad and study at Cambridge University in England and do physiological research there.
Before he left and he left the country at the end of May 1951, he registered for the Doctor's Draft which is a separate, as you -- as the Court knows, is a separate draft provision of the statute, he registered for that and he went abroad to England.
While he was in England, he was classified under the Doctor's Draft in 1 (a) that is available for military service, that's in September 1952 about 13 months after he left for England.
Apparently, in the fall of 1952 he applied to the Harvard Medical School to the Department of Physiology there for a position as an instructor in the -- in the coming year, this is in the fall of 1952 and there is in the record a letter from Dr. Cort to Professor Landis of the Department of Physiology at the Harvard Medical School of December 29th, 1952 in which Dr. Cort says he is pleased to accept the offer of appointment as a teacher at the Department of Physiology.
He has made arrangements to leave England to come to the United States beginning in, I think, June or July of 1953.
He would like to start work August 1st, 1953 but he could start earlier if they – if the requirements demanded.
On the same day that he wrote to Dr. Landis, he wrote to the Massachusetts Advisory Committee, which is an institution established under the Selective Service Law to recommend whether doctor s should be deferred because they're essential to civilian life.
And he wrote to them saying that he had accepted his position and was going to teach at Harvard and that he thought it would be essential to civilian life that he should be deferred from the draft, but he was not deferred from the draft.
The Harvard authorities did not recommend that he be deferred, the Massachusetts Advisory Committee recommended that he not be deferred and he was not deferred from the draft.
And the short of it is and this appears in the record from documents really, the short of it is, that when Dr. Cort, in England,discovered that he would not be deferred from the draft if he came back to the United States, he immediately cancelled his employment with Harvard and stated that he would remain abroad.
This was in the spring of 1953, he did not return to the United States.
He remained in England until August 1954 when I think, he was under pressure perhaps England actually did expel him.
He then went to Czechoslovakia in August 1954 where he has remained ever since.
He was indicted, I should say just to complete the story that he was order -- he was ordered at various times to report for a physical examination by the draft authorities in Massachusetts.
He refused to do so even though he was allowed to proceed to have himself physically examined in Frankfurt, Germany rather than to come back to the United States if it were more convenient for him to do so.
He didn't acknowledge these orders and he never complied with them.
He was finally given a direct order to appear for induction in September 1953 which he failed to do.
He was indicted a year later in December 1954 and that indictment is still pending.
Now, I should say at once that we make no plan and we have never made a plan that Dr. Cort is going to Europe, I mean in May and June of 1951 was for the purpose of evading the draft, it was not.
He went to take a position at Cambridge University.
We do make the claim that he remained abroad directly and specifically because he did not wish to serve in the armed forces.
Now, as I've mentioned, he remained in England until August 1954 and then he went to Czechoslovakia.
And the record contained some indication that when he went to Czechoslovakia in August 1954, he apparently told the Czechoslovakian authorities that he was stateless at that time because the record indicates that he had a permit, a residence permit in Czechoslovakia which indicated him as stateless.
Its equipped Page 87 in the record Mr. Justice and it's -- it appears from a statement on his later application for a passport.
It's rather hard to read on the Photostat but in the middle of the page, you will see there in typewritten form that he has a residence permit apprentice' stateless number so and so issued October 22, 1954 by a Czechoslovakian authority which was valid until October 22, 1959.
Now, Dr. Cort had a passport when he went to England which he -- which expired in 1952 – 52.
He did not seek to renew that passport until 1959.
In April 1959, he applied for a renewal of his passport and this was almost five years after he went to Czechoslovakia.
It was denied by the State Department on the ground that he had expatriated himself.
There was a review proceeding before the Internal Board of Review which is established in the State Department, was affirmed by them and by the legal adviser.
Now, I should say because it's important to the argument on the -- whether he is following the correct judicial procedure that the State Department indicated to him that he should apply for a certificate of identity which I will explain in a few minutes under Section 360 of the 1952 Act.
And that they had -- and the State Department had instructed the embassy at Prague to give due consideration to his application for a certificate of identity which would enable him to come to the United States and apply for admission to the United States as a citizen of the United States.
He had never sought a certificate of identity rather, in March of 1960 he brought this suit in the District Court.
Now, I think I am required by the principle, not reaching constitutional questions to discuss with the Court first, the procedural issue whether he has the right to bring this ordinary declaratory judgment action or whether he should've preceded under Section 360 of the 1952 Immigration and Nationality Act.
Now, at Section 360 is printed in our brief at pages 3 to 5.
It may be helpful before I go through and describe summarily the provisions of the statute if I summarize the contentions of the parties.
The position of the District Court below and of the appellee here is that Section 360, as a whole, is merely supplementary or additional to whatever other remedies may exist under the Regular Declaratory Judgment Act or the Administrative Procedure Act or the common law or the General Jurisdictional Statutes for Federal Court.
Justice William O. Douglas: I think he couldn't have applied under the Administrative --
Mr. Oscar H. Davis: Yes, but that he --
Justice William O. Douglas: Procedure Act?
Mr. Oscar H. Davis: That is right, Mr. Justice.
That is the position of the District Court below and of the appellees here.
The Government's position on the other hand is that, Section 360 is and was intended by Congress to be an exclusive, self-contained procedure by which persons in his situation were required to try to vindicate their claim to American citizenship.
And in particular, with respect to citizens' claimants abroad as Dr. Cort is that they would be required to follow the procedures of sub-sections (b) and (c), in other words, to seek certificates of identity come to a port of the United States and seek to vindicate to the normal exclusion proceedings of the immigration service there claiming that they are not aliens but citizens.
The statute provides in sub-section -- the statute I should say, covers both people citizenship claimants who are within the United States and those who are without.
Sub- section --
Justice Felix Frankfurter: Is this a scheme unique for this, for the application for a passport?
Mr. Oscar H. Davis: No, it covers all claims of denial of nationality whether it's done by passport or any other form.
It's unique for denials of American citizenship status.
Justice Felix Frankfurter: What's the date of this statute?
Mr. Oscar H. Davis: This is the 1952 statute.
Justice Felix Frankfurter: But it originated in 1952?
Mr. Oscar H. Davis: It originated in --
Justice Felix Frankfurter: And if according to your view, it would've required this procedure to be followed by Ms. Elg, is that right?
Mr. Oscar H. Davis: If it -- no, because Ms. Elg was within the United States.
Justice Felix Frankfurter: Yes, but this is an exclusive, is this permitted?
Mr. Oscar H. Davis: Yes, it would have -- at the time.
Justice Felix Frankfurter: As I understood you, this is an exclusive to people living abroad.
I'm really trying to --
Mr. Oscar H. Davis: No, in fact that's right.
Justice Felix Frankfurter: -- emphasize this the fact --
Mr. Oscar H. Davis: Yes, I would --
Justice Felix Frankfurter: -- and that would've statute (Inaudible)
Mr. Oscar H. Davis: Yes, I would try to show that that's what Congress when they established the form under this which is Section 503 of the 1940 Act, did intend to make an exclusive procedure but now the important thing for the moment is that as far as persons within the United States, they are entitled to bring a declaratory judgment action.
The statute says so in sub-section (a) with certain exceptions that is there has – it has to be brought within five years after the denial of their citizenship claim and it cannot be brought if the issue of citizenship arises or has a reason in an exclusion for saving that is specific in the statute.
Now, sub-sections (b) and (c) provide in brief that persons outside the United States have to seek a certificate if they wish to challenge the administrative denial of their claim, have to seek a certificate of identity and then come to the port of the United States and proceed through the normal immigration procedures.
I think I maybe most helpful to the Court if I spell out somewhat the history of this whole matter.
Start before the 1940 Act, the Nationality Act of 1940 was the first one in which Congress did try to establish a separate special procedure for testing -- judicially testing nationality claims.
Before that time, it had historically been true that the way that citizenship claimants outside the United States tested their claim to citizenship was by coming to the port and suing out of writ habeas corpus.
There's a well-known case of Ju Toy decided by this Court through Justice Holmes in 1905 which provided that that was the correct procedure that happen to be a Chinese case but it was applied by the lower courts and generally to non-Chinese claimants, that was the custom method.
Now, in 1934, Congress did pass the Declaratory Judgment Act.
I think I state this situation fairly when I say that it -- that there was some thought that perhaps the Declaratory Judgment Act might apply to citizenship claimants outside the United States.
Some ploy on the part of certain people but there had never been any judicial determination of that and that position was controverted by many people that -- who thought the habeas corpus was still the only remedy for citizenship claimants outside the United States.
Justice John M. Harlan: As a matter of fact, the General Declaratory?
Mr. Oscar H. Davis: Yes, the General Declaratory which was passed in 1934 before the --
Justice Felix Frankfurter: Did Elg originated Mr. Davis?
Mr. Oscar H. Davis: Elg originated under the General Declaratory Judgment statute.
Justice Felix Frankfurter: That's what I thought.
Mr. Oscar H. Davis: But she was within the United States and it's interesting to know that until the Elg case got to this Court, the Government strongly contested the right of Miss Elg who was within the United States to pursue a remedy under the Declaratory Judgment Act even though she was within the United States.
So, the conclusion that I draw from the materials is that there was no accepted view.
In fact, the prevailing view was to the contrary that an alien I mean, that a citizenship claimant outside the United States could not invoke the Declaratory Judgment Act but had to proceed by habeas corpus.
Now, this comes out too in the hearings on the 1940 Act because the people who represented the interests of aliens and citizenship claimants pointed out to the Congress that in the 1940 Act, Congress was establishing a lot of new procedures in which laws of nationality could occur and couldn't be tested because habeas corpus would be alright but how would you ever get to the country.
There are provisions of the statute penalizing steamship lines for bringing people to the country without proper documents and if it turned out that I came to this country and I turned out not to be a citizen and didn't have a visa or foreign code or number, the steamship line would be penalized and therefore they wouldn't want to take me at all.
And as a result of claims of that kind, that under the existing procedure there was no feasible method for persons abroad to test their right to relief, Congress adopted Section 503 which is on pages 5 and 6 of our brief.
Now, the distinction between Section 503 and Section 360 of the later Act which we have before us now is that 503 gave a declaratory judgment for everybody within and without United States and it provided that those without could get certificates of identity to come to the United States.
And it's pretty clear, we think, this came into the statute at a late stage, it was already going through Congress when it came in and from the statement of one of the managers on the part of the House which we -- which appears in our brief on page -- pages 28 and 29, Congressman Reece.
We think it's quite clear that there was great doubt as to whether declaratory judgment would be available to persons outside the United States and Congress thought that they ought to give -- to give such relief.
Justice John M. Harlan: How did this (Inaudible)
Mr. Oscar H. Davis: No, no, Mr. Justice, you mean under the earlier statute?
It provided that if you were outside the country and if you brought a declaratory judgment action, you could then get a certificate of identity to come to the country to prosecute your action.
If I may hurry on, we think that the history shows that though this was the intent of Congress, Congress later began to back up from this liberal view because after World War II, a large number of actions were brought mostly by persons of Chinese descent to test their claims of being derivative American citizens.
And in the space of I think five or six years over 1200 suits were brought and were clogging the courts in certain districts.
This was well-known to Congress, it was well-known to Congress.
And the Senate Judiciary Committee which had been entrusted by the Senate with the review of all these Immigration and Nationality legislation as a prerequisite to the new bill which did become the 1952 Act, they said that they thought that the old remedy of 503 of the liberal declaratory judgment proceeding had been carried too far.
And their recommendation was that the declaratory remedy judgment should be limited to persons within the United States.
They made no provisions at all for persons outside.
Presumably, those persons would have to follow the rule of habeas corpus even without a certificate of identity, they'd have to get to the country as best as they could.
And the reasons for these -- for this I think is that Congress thought, I think it's not important really whether Congress was right or wrong in so thinking but Congress did think that in these many cases which had grown up under Section 503, mostly the Chinese cases, that there had been fraud perpetuated on the courts, that the courts in declaratory judgment actions without any prior administrative proceedings or any prior administrative record had been unable to seized out the true from the false claims of American nationality.
And that what was needed was an administrative investigation and administrative record and then judicial review after administrative record had been accomplished.
Now, as I say, the Senate originally proposed that there being no remedy of any kind except habeas corpus for persons outside the country.
Now, the Department of Justice speaking through the deputy Attorney General Peyton Ford wrote to Congress and said, “We don't agree that persons outside the country who have a non-frivolous claim of citizenship should be debarred.”
And we think that we suggest that the procedure you should adopt was and this is on Page 33 of our brief that they shall be required to apply for admission to the United States at a port of entry and to go through the usual screening, interrogation and investigation, applicable and cases of other persons seeking admission to the United States so that the Immigration and Naturalization Service will have this complete a record as possible on each person entering this country claiming to be a national thereof.
And after that suggestion was made by Department of Justice to the Senate committee, the Senate committee amended its bill to provide the procedure of (b) and (c) which carries precisely into effect what Deputy Attorney General had recommended.
Now, I think it's important for the purposes of the -- of understanding what went on in Congress to realize that from first to last, the Senate insisted that declaratory judgment be limited to persons within the United States.
The House did not, the House Bill did extend declaratory judgment with certain limitations to persons outside but the Senate from first to last, insisted on this.
And that at the conference, it was the Senate Bill with very minor changes which have no effect at all on issue before the Court, the Senate Bill which was adopted.
The Senate proposal was adopted by the conference which went into the law as the Court will remember over the objection, over the veto of present term.
Now, it's also important that the Senate committee which recommended to the Senate the proposal which is as I have said, just -- just said was adopted by the Congress with minor modifications.
The Senate committee stated after amending its bill to provide for what Peyton Ford had suggested and this is on Page 34 of our brief.
“That the matter of fact of the provisions of sub-sections (b) and (c) is to require that the determination of the nationality of such person, that is, persons abroad shall be made in accordance with the normal immigration procedures, these procedures in full review by habeas corpus proceedings where the issue of the nationality status of the person can be properly adjudicated”.
Justice Felix Frankfurter: Mr. Davis, that is the last thing that you read that would cut out declaratory judgment all together, isn't it?
Mr. Oscar H. Davis: It says precisely in terms that the review shall be by habeas corpus --
Justice Felix Frankfurter: Habeas corpus?
Mr. Oscar H. Davis: -- and not otherwise in the statute.
Justice Felix Frankfurter: But that would also cut out any argument to be derived from the Administrative Procedure Act?
Mr. Oscar H. Davis: I think that is right.
Our whole point is that this a self-contained procedure which supersedes the General Declaratory Judgment Law which fulfills the requirement of the Administrative Procedure Act that where Congress is set up --
Justice Felix Frankfurter: Special Act?
Mr. Oscar H. Davis: -- a special statutory provision for review the -- and that shall be the system for review.
Now, I mentioned before but I would like to bring out again that what Congress wanted is an administrative proceeding by which the facts could be brought out, the claimant would be there in person.
The immigration service which is, at least our expert body in this field, would be able to fair it out what information it could.
There would be an administrative proceeding subject to final administrative adjudication and then review by the courts because Congress felt that in the earlier declaratory judgment proceeding, the absence of this administrative proceeding had led to frauds and failure to obtain all the necessary evidence and proper determination by the courts on a proper record.
Justice Felix Frankfurter: I don't know what way it would cut but if you are right and he asked to come here, he would subject himself would he not, from jurisdiction?
In regard to any outstanding indictment, is that right?
Mr. Oscar H. Davis: Well, if he comes as a certificate of identity --
Justice Felix Frankfurter: Yes.
Mr. Oscar H. Davis: He comes as a person who is an applicant for admission.
Justice Felix Frankfurter: Unless you bring him within what Justice Holmes said in Ju Toy that he is not really (Voice Overlap) --
Mr. Oscar H. Davis: Well, I --
Justice Felix Frankfurter: -- physically in?
Mr. Oscar H. Davis: I think that he would claim that, I don't know what the Government --
Justice Felix Frankfurter: With that I don't have to decide --
Mr. Oscar H. Davis: Yes.
Justice Felix Frankfurter: -- at this moment?
Mr. Oscar H. Davis: Yes.
In other words, what Congress really decided I think is that for persons' nationality claims, American nationality claims, outside the United States, they were going to return to the system before 1940 where habeas corpus was the appropriate -- was the remedy but they were going to ameliorate it by providing for the certificate of identity procedure to enable him to come to the country more easily.
Justice William J. Brennan: Am I right Mr. Davis that the persons who seek entry on grounds other than citizenship are not (Inaudible)
Mr. Oscar H. Davis: To Section --
Justice William J. Brennan: (Inaudible) or whatever the Section --
Mr. Oscar H. Davis: No.
Justice William J. Brennan: Not that?
Mr. Oscar H. Davis: But they have to bring -- they have to come to the port; persons, aliens outside the United States have to come to a port and seek admission.
They can't, the Court held --
Justice William J. Brennan: They may proceed but (Inaudible)
Mr. Oscar H. Davis: Yes, but only after there has been the administrative procedure that is, they can't start abroad while they're abroad before they come here, subject to themselves to the regular administrative procedure which includes the making of a record and a final determination.
The Court specifically held in the Tom We Shung Case that they couldn't, they couldn't bring a declaratory procedure from abroad and what Dr. Cort has done is to bring this procedure from abroad before there has been this immigration proceeding.
Now, Mr. Boudin will obviously say that there has been a State Department administrative proceeding but that isn't what Congress wanted.
They wanted the immigration proceeding to take place before there should be judicial review.
Justice John M. Harlan: (Inaudible)
Mr. Oscar H. Davis: Mr. Justice Harlan, the answer I would give to you in that case is that Congress did not want him to be able to seek review except by coming -- getting to the country in habeas corpus.
Now, I will also give you the answer --
Justice John M. Harlan: (Inaudible)
Mr. Oscar H. Davis: That's right.
Now it maybe, and I certainly don't want to say this is so but it maybe, that the Constitution would -- would require some proceeding other than that for such a person but that's not applicable here.
Now, we think that there is obviously no constitutional difficulty with this procedure which Congress has established in Section 360 because --
Justice John M. Harlan: (Inaudible)
Mr. Oscar H. Davis: Congress has clearly throughout the years for the last 50 years been held by this Court to be empowered to require the exhaustion of the administrative remedies before – before judicial review and that's what Congress is required here simply that there be exhaustion of administrative remedies before you can come to the court.
In addition, it is required to return to the 19 – pre-1940 procedure of the Ju Toy Case which had been in effect for about 50 years.
Justice William O. Douglas: It seems like a harsh temptation of the harsh motive for Congress in treatment, if you assume all these people are citizens?
Mr. Oscar H. Davis: Well Congress didn't, that's precisely what it was Mr. Justice Douglas, (Voice Overlap) they assumed that many of them would not be citizens.
They assumed that many of them would be fraudulent claimants and that many of them would not be able to support their claim and because they assumed these as of many of them, they laid down this general rule which would of course cover some who would be able to maintain their claim but they did lay down the general rule because of their view as to what it happened under the earlier statute the -- what they thought of is the inadequate records, the fraud that had occurred.
I should say now because perhaps it will be brought up by my opponent that --
Unknown Speaker: Do you think it's necessary?
Mr. Oscar H. Davis: It isn't necessary for Congress in setting up a specialized procedure to say that a procedure shall be exclusive in terms.
We've used the example of Flemming against Nestor which is a review proceeding for social security cases, that statute does not say a note proceeding for review shall be brought under the General Declaratory Judgment Act or in under any other statute.
Just like this one, it says a person who wants to challenge may bring the proceeding and we think it's clear from the history of this Court that you don't have to have something saying explicitly, you shall not have a right under any other statute when Congress establishes a special statutory system.
I emphasize again that -- that Dr. Cort has been invited by the State Department to apply for a certificate of identity in Prague but he has not done so.
Justice John M. Harlan: Could I ask you one question this prior to this, maybe the statute required the citizen but prior for any further legal arguments, are there practical differences of the two?
Mr. Oscar H. Davis: The system, yes.
Justice John M. Harlan: System, I mean from the point of view of the administration there are practical significance, so?
Mr. Oscar H. Davis: Yes, there is a practical significance Mr. Justice Harlan.
One practical significance is that under the system like Congress' established the citizenship claimant is here, he can testify, he can be examined, he may refuse to testify but he is here.
Dr. Cort is not here, he is bringing the suit from abroad.
He may -- he is not here, he is not subject to cross examination and so forth.
The second thing is that when a suit is brought de novo with a District Court and this turn out to be true many of the Chinese cases, perhaps it's the fault of administration.
But there isn't the kind of development of the facts and the evidence which there is when an applicant applied at the door to the Immigration Service and the inspectors of the Immigration Service seek to obtain all the facts and make a factual investigation and so forth.
That just turns out to be a different kind of a judicial proceeding.
I think this is the -- it's akin to what moved Congress for 50 years to require the administrative proceeding Labor Board or ICC or whatnot and not to -- trusted upon courts initially that administrative proceedings in specialized areas sometimes have a greater ability to collect the facts to go further and investigate, the system evaluate the evidence.
And then after that's been done under the administrative determination was made, then there can be judicial review.
And I should say at once because that the question is also not here, what is the scope of administrative review once gone through?
That is not a question, it maybe that there would be de novo judicial review even in habeas corpus, which is possible; maybe that there would not be the provisions of the holding of the Ju Toy Case would still be considered to be the law but that is not the issue now because Dr. Cort has not proceeded through the administrative procedure.
I should turn now to the statute to the expatriation statute which is involved both in the proceeding case and in this case and the time remaining to me I don't wish to go over again the general arguments which have been made before and which are made in the briefs.
I would like to stress, if I may, that there are three grounds upon which the expatriation statute can be upheld but to discuss only one of them a little more extensive than the others.
To try to discuss the Trop Case and to indicate what possible difference, if any there may be, between the case of Dr. Cort who claim that he is stateless if he is denationalized by us in the case of Mendoza Martinez who was a national of Mexico.
The three grounds upon which a statute such as 401 (j) of the 1940 Act and 349(a)(10) of the 1952 Act are supported we believe, the Foreign Affairs power -- the power of Congress to sever its relationship with the person who repudiates all obligations of the United States, all authority of United States over him and third, the war power.
It's important with respect to the Foreign Affairs powers to recognize that this statute goes into effect only when you go abroad.
It's unlike the Trop Case in which desertion could occur in camps in the United States where there was no relationship to going abroad at all necessary in the -- with respect to the statute.
This statute is triggered only by a person who evades the draft by going abroad.
If hold up in the Tennessee mountains, it does not go into effect.
Justice John M. Harlan: For staying abroad?
Mr. Oscar H. Davis: For staying abroad, that is right Mr. Justice.
Undoubtedly, it will be said that there has been no proof that there's ever been any international difficulties or problems because of American national fling to countries abroad.
Well, that maybe so because in the past we've had statutes like these on the books since the civil war compulsory selective service only went into effect.
It was in effect in a civil war for little while and then in World War I.
Also, the countries of refuge have turned out like Mexico to be allied or friendly countries in World War II and World War I but Congress could properly consider what would the situation be if countries perhaps, not friendly counties perhaps, nearby countries that were not friendly would become centers of refuge and this affection by large numbers or people or draft evaders who were leaving this country to evade the draft not perhaps for personal motives or perhaps because they did not like the objectives of the military service, the Foreign Affairs purposes of a country, the objectives of a war that we might be engaged in.
It is not at all fanciful that in the situation like this, there could be a true international (Inaudible).
The United States tried to seek the return of these evaders in other countries, the country of the refuge could seek to protect them and claim that they shouldn't be returned and there would be difficulties.
But difficulties of a different order but I think bearing on this that occurred in the first part of a 19th century with respect to imprisonment of persons by a various countries and during the civil war, our witness to this.
Now, the other support for the position for the constitutionality of the statute is the fact that this man rejects all authority of the United States over him.
If I may be excused for using the corporeal phrase, “He thumbs his nose at the United States.”
He says, “I am going where you cannot get me.
There is no extradition, you cannot get me back, you cannot subject me to criminal punishment.
I have evaded the highest duty of citizenship, the military duty but you cannot do anything to me”.
Now, if citizenship is, as counsel in the preceding case said, a contractual tie, there is an obligation on the citizen perhaps the country has to protect it and to take care of him in certain situations but he has at least the obligation of subjecting himself to the authority of the country when a country through its duly constituted government tells him, “You do this and if you do not do this, you shall be punished”, and if he doesn't subject himself to that if he says, “You can't do anything to me.
I have gone completely beyond your power”, then he has really himself severed his relationship with the country.
He has himself abandoned his allegiance.
If I may, I'd like to reserve.
Chief Justice Earl Warren: You may, Mr. Davis.
Argument of Leonard B. Boudin
Mr. Leonard B. Boudin: Mr. Chief Justice, may it please the Court.
In approaching first the procedural jurisdictional issue, I put in the following way whether this citizen contest the decision of the Secretary of State to deny him a passport on the ground that he has lost his nationality under 349(a)(10), whether the test can be made under the standard procedure that the Declaratory Judgment Act, the District of Columbia Code and the Administrative Procedure Act or whether the citizen claimed must attempt to enter the United States and emphasize the word “attempt”, as Your Honors will see.
Under procedures relating to aliens and litigate the issue in a habeas corpus proceeding with whatever question of this stand as a proof there maybe against the Attorney General instead of in the proceeding against the Secretary of State.
Now in approaching this problem, I think we must face first the question of how the appellee, Dr. Cort was injured as the Court below held he was and by whom, what relief he sought and from whom, all of which have a bearing on both constitutional right, construction in the statutes there involved.
This lawsuit was not instituted because the man wanted to enter the United States or because he had a controversy, a real controversy with the Attorney General.
It was issued because a man was denied a passport by the Secretary of State who, under Section 211 (a) of 22 U.S. Code, is the only person who can give a passport and who is directed not to give passports under 212 of 22 U.S. Code if the person is not a national or one having allegiance or is not a citizen.
And the Secretary of State acted here under a power given to him by Congress in the Immigration and Nationality Act of 1952 Section 104 (a), the power to make determination with respect to nationality of persons who were abroad.
The only person who has given that statutory power under the Immigration Act, hence, this suit against the Secretary of State not for entrance, not for certificate of identity but for a passport and of necessity and injunction declaring the particular statute unconstitutional which was the basis for the denial of the passport.
Now, we have a suit here under three statutes and the statutes is set forth in our brief and they are the ones which I have mentioned before and on their face, I think there is no doubt but that absent the dispute which we have here over the meaning of 360, the appellee has a --has jurisdiction -- the court below had jurisdiction.
And I may say in analyzing this entire problem, I am bearing in mind the observation that had been made by at least one member of this Court presently and by Mr. Justice Holmes that we are concerned with the mischief.
The mischief that Congress wanted to repair when it passed 360 and that we are not concerned with the vicissitudes of legislation and we must not look into the motives of legislators certainly not unless there is a formal expression of the motive.
I think that all these grounds we shall be able to prove that our construction of the statute is correct.
I may say that while the Government begins by suggesting that 503 in 1940 was necessary for Declaratory Judgment Act -- action and Your Honors will recall that related to a declaratory judgment action for man that was here is one -- is one who is abroad.
Perkins against Elg then decided by this Court one year earlier in 1939 and therefore, Section 503 would not necessary to give the declaratory judgment action which the Government suggested.
But I want to change to what we must all do as we have been advised by Mr. Justice Frankfurter and by others turned to the face of the statute before we consider legislative history or arguments of counsel or arguments of proponents will always in asking for legislation see the worst as well as of their opponent.
Always therefore, dangerous taken what one said recounted for a legislative committee as a determining factor in the construction of legislation.
On its face, 360 deals exclusively with entry and it does not prohibit suit for declaratory judgment.
We take issue, we are glad that the Government has posed the issues as squarely with the statement in its reply brief at page 3, that 360 expressly covers the entire universe of citizenship claimants because the Government is clearly in error on that point.
It expressly does not cover those persons who are over the age of 16 --
Justice William O. Douglas: Whether to be applied to the other Acts?
Mr. Leonard B. Boudin: And who has never been in this country before.
It necessarily, as a practical matter, does not cover those persons who, like the amicus curiae and Mrs. Schneider are not able to leave and breakaway from their families and come here to litigate matters that may take two or three years or more in habeas corpus and we have seen how the Mendoza case, which is not a habeas corpus had been here for so many years, who cannot afford the financial cost of travelling to the United States to litigate the matter, who may be in military service even in United States Army or who may be ill or who may not want to leave their families.
It does not cover the practical matter for all these categories.
Now therefore, and it certainly doesn't cover the category of persons who happen to be abroad and who for example, merely want a passport to travel from England to Spain, as was the case of Donald Douglas Stewart, the motion picture writer who sued for a passport some years ago and secured it in the Court of Appeals, without ever coming to this country.
Now we --
Justice Felix Frankfurter: When you say the section isn't the purpose scheme isn't all inclusive, you mean there are practical difficulties in applying it but is it statutorily – is the Government wrong in saying that statutorily from its point of view to all the inclusive in the sense that there are specific other statutory provisions dealing with this subject which govern outside of this scheme?
Mr. Leonard B. Boudin: The Government, yes.
Well, this is a question we'll be placing our argument under the Declaratory Judgment Act as against 360 (Voice Overlap) the Government is wrong Your Honor.
Justice Felix Frankfurter: Yes, I understand that, if that's what you say.
This doesn't displace the Declaratory Judgment Act.
Mr. Leonard B. Boudin: But I would've --
Justice Felix Frankfurter: But I what I wonder, is there any provision -- is there any other existing law, statutory material that deals with this subject --
Mr. Leonard B. Boudin: No Your Honor --
Justice Felix Frankfurter: -- as against the justice you make if the hardships involved in making this all inclusive?
Mr. Leonard B. Boudin: I have -- first of all, there are no statutes other than the three upon which I rely, the Declaratory Judgment Act of 34 and the A.P. and so forth.
Secondly, our argument is not that this is a hardship statute.
Our argument is that Congress necessarily could not have intended to make this exclusive because it left out a whole category of people from the age of 16 to 100 who maybe living abroad and who have never been in this country (Voice Overlap) and why citizens --
Justice Felix Frankfurter: The upshot of which was the argument that this difficulties that you suggest are difficulties in operation –-
Mr. Leonard B. Boudin: Of the difficulties --
Justice Felix Frankfurter: -- from which you draw the inference presumably Congress didn't mean to cover that.
Mr. Leonard B. Boudin: They are more than difficulties in operation.
They leave out a large group which means that Congress could not have intended to mean that this statute is the only way to test nationality – it's more than operation.
Justice Felix Frankfurter: -- (Voice Overlap) -- because the housewife couldn't come here without disrupting a family.
Mr. Leonard B. Boudin: Well, I may have blurred the picture by indicating the housewife who couldn't come here, not disrupting a family without leaving her children.
Justice Felix Frankfurter: Or the soldier who couldn't physically come in.
Mr. Leonard B. Boudin: But let us take the case of the person who is over 16, who is not a housewife or a soldier, he cannot sue.
He is left out of the statute because the statute section 360 is limited to people who are under 16 and born abroad of American parents or people who have been in this country before.
The American citizen born abroad with age 18 or age 80 cannot sue under the statute if he has not previously been here and that is what I mean by saying that there is a category of persons whom Congress did not give the right to enter here.
Justice Felix Frankfurter: But there is no other specific statute except the Declaratory Judgment Act?
Mr. Leonard B. Boudin: Yes, and the idea.
Your Honor is quite right.
Justice Felix Frankfurter: Now, I just want to understand what you are saying.
Mr. Leonard B. Boudin: Now in analyzing the legislative history here, I want to point out if Your Honors will read the hearings on Section 503, the Nationality Act at 1940.
Your Honors will see that the issue posed there by a proponent of the bill, a very able immigration lawyer always was how to get people into this country.
And the Government responds, the response of Mr. Flournoy, as Your Honors know, was an expert in the field of nationality was well the only -- we think that they have a right to Declaratory Judgment Act and the answer of Mr. -- actually and the answer Mr. Shoemaker the Deputy Commissioner of Immigration was, “Yes, but if they come here, how will we get them out?”.
That was the problem, Mr. Butler the proponent of this thing, the late proponent was apparently under the impression and sometimes it is true that it is better for a man to be physically in a country where he can testify instead of doing it by deposition from abroad or by affidavit on a motion for summary judgment.
He wanted the people physically here and that was the only point of Section 503.
Now, when we come to this problem which is really before Your Honor which is Section 360, let us examine the legislative history referred to by the Government to see whether it supports its argument that the purpose of 360 was to reduce litigation, clothing with the expression used by Mr. Davis.
I have read the entire legislative history of course as has Mr. Davis of this particular statute 360.
There is not a word presented to the Congress that I have been able to find, which suggests that Congress was worried about the number of lawsuits.
This is unfortunately -- a fortunate – fortunately, a litigating country and very rarely do we worry about the number of lawsuits or their exception.
This was a case where Congress was concerned about one thing, were these Chinese, these 1288 as referred to by Mr. Davis, were they getting in here and then that is Mr. Erin's counsel for the Immigration Committee said, “Getting lost.
How are we going to get them out if they aren't really citizens?”
And so Congress determined that if a man wanted to come here, he was going to come here on the pretty rigid control of the immigration service as the explanation for a Deputy Attorney General Peyton Ford's remarks, “Not that Congress wanted to prevent the man from starting a lawsuit”, because right through this whole history, while it's true there are a lot of lawsuits, nobody complained to the Congress that it was the number of lawsuits that was the problem rather than that of entry and as pure speculation for the Government to say, “Well, there are few cases in which the courts on the West Coast has said there have been a large number of false identity cases”.
And then to say that's the reason it was in the minds of Congress when the committee reports and at testimony before the committee does not say so.
Now Your Honors will see from the very able amicus curiae brief filed here by the American Civil Liberties Union which I also am indebted, the Immigration and Naturalization said, as the expert on these problem immigrants, repeatedly said.
“We got to prevent this entry of people”.
It never said anything about a lawsuit.
And the Government's brief in Brownell against Shung, itself contains before this problem was highlighted, the following statement, “Section 360 of the 1952 Act provides that, persons claiming citizenship, even persons claiming citizenship who are excluded on the ground that citizenship is not established, may have the determination reviewed by habeas corpus”.
It didn't say people who are claiming citizenship had to go through habeas corpus, it was the excluded proof.
And Mr. Justice Clark, in his opinion -- in his opinion in the We Shung case which is a dictum on this point I think, discussed Section 360 and said, “Citizen claimants who hold certificates of identity”, as the group who wanted to come here, “are required by 360 (c) to test the validity of their exclusion by habeas corpus only”.
Respondent here said Mr. Justice Clark, he was an alien, but neither claim citizenship nor that he hold a certificate of identity and therefore, 360 has no bearing here.
And Dr. Cort, the appellee here has no certificate of identity and equally has no bearing because he has not been excluded because he hadn't sought entry.
Now, while we are going on in discussing 360, may I say that the Government has overlooked a parallel operation of great significance with going on here in the Congress.
And again, I'm indebted to Mr. David Carliner who wrote the American Civil Liberties Union brief because he points out at pages 11 through 18 of his brief that the Immigration and Naturalization Service were attempting during this entire periods from the 80th Congress to the 82nd in two ways, to take nationality matters out of the Administrative Procedure Act and to allow these matters to be determined only by habeas corpus.
Your Honors will see that the first method is by a direct amendment to the Administrator Procedure Act to say as one bill said that the functions or proceedings authorized under these Acts are limited to habeas corpus and that failed and I will not take the Court's time to indicate the various bills that ultimately failed.
The second method and even more significant is the attempt to create a new immigration law which eventually became the 1952 Act and to provide in that law that the APA was not to apply.
And here, we have the famous Section 106 which appears in Mr. Carliner's brief at page 13 in the footnote and I -- because that provides specifically that in all of these nationality and immigration matters, a 13 and 14 footnote, habeas corpus was to be the method to be determining these problems and the immigration service pointed that out repeatedly as we have indicated in our brief.
But Congressman Walter and Senator McCarran, the orphans of the Immigration and Nationality Act of 1952 would not accept Section 106 and they are set forth in Mr. Carliner's brief and in my brief.
His brief at pages 17 and 18, a very significant statement made by the Immigration and Naturalization Service by its illumination said the service, on Section 106, “The orphans of this bill have necessarily calls the situation to continue whereby decisions of the service can be reviewed not only by habeas corpus”, the Government says here, “but also under Section 10 of the Administrative Procedure Act, that basic Federal Declaratory Judgment Act and the declaratory judgment action under 360”, all three, this was the view of the INS.
Now, after the Immigration and Naturalization Service failed to put over its position, the bill was passed by the Congress with remarks on the importance of the application of the APA and Mr. Justice Clark in the We Shung Case, speaking for unanimous Court and Mr. Justice Black in the Pedreiro case, both pointed to the remarks of Senator McCarran and Congressman Walter as emphasizing the fact that the APA was going to apply, despite the passage of the subsequent legislation of the Immigration Act, and in Pedreiro, despite the fact that habeas corpus had only previously been held in (Inaudible) to be the message intended by Congress in the statute, the 1917 Immigration Law to determine deportation matters, APA Section 12 would help with the conclusion and to require that it be applied in cases of deportation and in Pedreiro, this Court held the same with respect to exclusion proceedings.
Justice Hugo L. Black: May I ask you --
Mr. Leonard B. Boudin: Please sir.
Justice Hugo L. Black: What the argument with the certificate of identity is, it is we see Section -- if that institution we see Section 360?
Mr. Leonard B. Boudin: I think they're -- I'm quite sure Your Honor.
And my only question was whether it preceded (Inaudible)
Justice Hugo L. Black: (Inaudible)
Mr. Leonard B. Boudin: I don't recall whether finance --
Justice Hugo L. Black: Well that's --
Mr. Leonard B. Boudin: (Inaudible)
Justice Hugo L. Black: Well, that administrative device or whatever you call it, that mode of identification of starting some action was intended by this 52 Act, wasn't it?
Mr. Leonard B. Boudin: No, it definitely would not Your Honor.
Now, I -- point Your Honors I make the point, what the Government said in the We Shung Case in its brief, “As is in the highest degree unlikely that Congress intended to give the one conceitedly an alien seeking admission a greater writer review than was made available to persons claiming American citizenship”.
And yet the effect of the Government's position here would mean the We Shung and Pedreiro, admitted aliens, have to -- can start a declaratory judgment action and we admittedly one said at least we think presently, an American citizen have to go through what Mr. Justice Clark pointed out as significant here the odium of arrest and detention.
And I pass over just for the moment, we'll cover if there's time the -- what happens to a man when he comes in as an alien?
And the amount of surveillance that is committed and the control and the question of whether or not Dr. Cort would ever be relieved from actual arrest if he came here not because of the indictment alone but because having one stead prior to 1951, remember the communist party.
His question is to whether he is not an excludable alien and therefore not admitted at all under the Alien Act.
Now, the government says that 360 set out what it called the special statutory review proceeding relevant to the subject matter and adequately to the meaning of Section 10 of the APA and therefore the APA doesn't apply.
To this --
Justice Hugo L. Black: I don't want to take your --
Mr. Leonard B. Boudin: Please.
Justice Hugo L. Black: -- time; you have such a short time for the merits.
But, just state with the argument, just tell me whether the declaratory judgment remedy derives from the Administrative Procedure Act and what this Court has construed it?
Mr. Leonard B. Boudin: No, Your Honor.
Declaratory remedy derives from the Declaratory Judgment Act of 1934.
It is independent of the Administrative Procedure Act.
Justice Hugo L. Black: That its foundation but does the -- its application to this type of case, the deportation of passport cases, is that derived from the generality of the statute or why wouldn't Ju Toy apply, that you must first have an administrative determination if you don't rely on the Administrative Procedure Act?
Mr. Leonard B. Boudin: Well, of course Declaratory Judgment Act was passed in 1934, the Ju Toy was long before the Declaratory Judgment Act.
Justice Hugo L. Black: I understand that but the Declaratory Judgment Act undue the reasoning underlying Ju Toy that when you deal with these problems, you must first go to the administrative.
Mr. Leonard B. Boudin: Well, Ju Toy did not say --
Justice Hugo L. Black: (Inaudible) that we have argued here I don't --
Mr. Leonard B. Boudin: No.
Justice Hugo L. Black: -- think it -- if we decide, is there any decision of this Court, just inform me, in which we held, result to declaratory judgment cases in matters that involved issues that bring into play factual determination by administrative authority like Immigration and Nationalization Service the right from the Declaratory Judgment Act of 34 and eliminates all that preceded into that to Immigration and Nationalization Act.
Mr. Leonard B. Boudin: I'll answer you.
I think Your Honor was on the Court in Perkins against Elg.
Perkins against Elg was exactly that problem.
Mrs. Elg was involved in the deportation matter, was withheld pending the suit for declaratory judgment.
This Court held that a Declaratory Judgment Act would lie under the 34 Act.
Justice Hugo L. Black: She claimed to be the citizen?
Mr. Leonard B. Boudin: She -- so do we here, claim to be a citizen, exactly.
Justice Hugo L. Black: Yes.
Mr. Leonard B. Boudin: We're in exactly the same position as this held.
Justice Hugo L. Black: Yes but -- but have I been taking much time but this you know legislation wasn't any -- my point about Elg was, of course, one remembers was that you didn't have all these legislation at the time, available.
Mr. Leonard B. Boudin: Well, and the question what this legislation means whether 360, you didn't have one thing we now have, which is the APA so that we have an advantage over Ms. Elg.
Justice Felix Frankfurter: But the APA makes an exception as to special Act.
Mr. Leonard B. Boudin: Now that's exactly what I'm coming down to on whether or not this is a specialized statutory procedure.
And also whether or not it is relevant to the subject matter that as the requirement in 10 (a) and whether or not it is adequate but that's all --
Justice Felix Frankfurter: But I'll be denying of this, you make –- as I understood your answer, to Justice -- subject earlier, you say, you could go either under 360 or the declaratory judgment, isn't that right?
Mr. Leonard B. Boudin: Of course, but this is -- that doesn't mean the 360 is adequate and not onerous.
Justice Felix Frankfurter: But I think it's adequate but it certainly is a special statutory recollection.
Mr. Leonard B. Boudin: Well, the question is whether the special statutory proceeding within the meaning of 10 (a) and let me address myself to that.
Justice Felix Frankfurter: I think that's rather --
Mr. Leonard B. Boudin: Oh, I think it is relevant.
I don't think --
Justice Felix Frankfurter: It's more than that --
Mr. Leonard B. Boudin: I don't think --
Justice Felix Frankfurter: Because if it is, if -- you can't invoke the Administrative Procedure Act.
Mr. Leonard B. Boudin: Yes.
Yes we can Your Honor unless the special statutory where will be stating is relevant to the subject matter and that is exactly what I want to point out Your Honor why it's not and unless it's adequate.
Justice Felix Frankfurter: Of course, if it is irrelevant for me than the special procedure.
Mr. Leonard B. Boudin: Well that's a different thing.
I won't address myself to that problem.
We say it is not a special statutory proceeding relevant to the subject matter because Section 360 deals with the subject of entry and they dispute with the Attorney General about the right to enter.
And because our dispute, unless it were a contrived one which this is Court had disapproved of in the past as history indicates, is not with the Attorney General.
The subject matter of this lawsuit as a passport denied by the Secretary of State, not exclusion imposed by the Attorney General and this is exactly what the court really did in Perkins against Elg, when it granted Ms. Elg's cross-petition to certiorari because she was not satisfied with the release she had against the Commission of Labor, a Secretary of Labor who then had the power of the Attorney General over immigration.
She wanted a passport and this Court reversed the Court below and directed that an injunction issue against the Secretary of State in her suit for passport.
Justice Felix Frankfurter: But 360 says, it denied or by any department --
Mr. Leonard B. Boudin: That is correct.
Justice Felix Frankfurter: By any department, is that the difference here?
Mr. Leonard B. Boudin: But --
Justice Felix Frankfurter: Whether the suit is against the Attorney General or Secretary of State.
Mr. Leonard B. Boudin: But then we come down to the question of adequacy, is it an adequate remedy in this situation and in many others that I could indicate if we had time, to require a person situated as Dr. Cort to come here as an alien subject to all of the procedures of the Immigration and Nationality Act affecting aliens subject to detention, possibly to be held without bail?
And is it adequate to require him to do that?
But even before we come to that question of adequacy, let me show Your Honors what would really happen if the Government is right, we would have to ask the Secretary of State first for a certificate of identity.
If the Secretary of State refuse to give it, some courts have held that he cannot be sued so we could never get here.
Some Courts have held that he can be sued but that the order which denies -- which denies a relief in interlocutory order and can't be appealed.
Suppose, however, we prevail in lawsuit number one against Secretary of State, then we arrive here and the Attorney General takes us into custody then we move for the year or two into litigation on habeas corpus.
And finally, it is held if the Attorney General takes the position that we're excluded, it is held by the courts, let us say, that Dr. Cort is a citizen and not excludable.
This does not compel the Secretary of State to give him a passport.
Oh, he may as a matter of fair play, but we heard yesterday of government agencies, (Inaudible) all citizens are bound by the decisions of the courts.
But what if the Attorney General allows Dr. Cort after administrative hearing to come in -- in here agreeing with our contention that Dr. Cort had not lost his citizenship, then what would happen?
We would have had two lawsuits, Secretary of State identity one, Attorney General administrative one but what would've prevail there without going to Court?
And then the Secretary of State will say, “Well I made a determination that Dr. Cort is not a citizen.
I'm not going to agree with the Attorney General.
The one who makes the determinations under 104 of the Immigration Act.
You have to sue me”.
So we have three lawsuits here certainly not an adequate remedy for a man who merely wants a passport and a declaration of citizenship.
And the Court of Appeals of Frank against Rogers which agrees with us on this point and other courts had made this point that will require several lawsuits and therefore the remedy is not adequate.
Justice John M. Harlan: I'd like to ask you a question, the District of Columbia Circuits gone with you consistently?
Mr. Leonard B. Boudin: Consistently, Your Honor.
Justice John M. Harlan: What's been the situation on the other end --
Mr. Leonard B. Boudin: The other as --
Justice John M. Harlan: -- of the court?
Mr. Leonard B. Boudin: Sorry.
The others as we indicated in the large footnote to our brief, had not really had this problem because the suit, the 360 problem really only arose in a suit -- in a suit brought in the District of Columbia.
I don't want to take the time at the moment to question into the statutory now, but the only case is that really have a bearing are those in the District of Columbia.
Now, we say therefore that there is no universality here and that what we -- what the Government is trying to make us have is they can try dispute with the Attorney General when we only have a dispute with the Secretary of State.
And that even if these were a special statutory remedy, it is by no means the proper one because it is inadequate and it doesn't touch on the subject matter of our dispute.
Now briefly turning to the substantive issue in this case, I point out that this Court dealt with a desertion in 12 that four justices, the remark was made early this morning that it was four or five justices held that it was punishment.
And four of the justices held that the desertion provision that is, expatriation for desertion.
Desertion provision was barred by the Eight Amendment whereas one justice, Mr. Justice Brennan held that it was not barred by the Eight Amendment but by the Fifth Amendment because he regarded, there being an unreasonable (Inaudible) connection between the punishment and the war power.
Now, these considerations and more which I will touch upon briefly led the Court to the conclusion, to that conclusion are present in this case because the draft delinquency provision and the desertion provision as Mr. Justice Brennan pointed out in his concurring opinion and of course the Chief Justice in the principle opinion in Trop, they both have a common origin and purpose.
Indeed there in the same sentence, if we disregard a semicolon of the same Section 21 of the Act of 1865.
It really would require, I think, a reversal of a great deal in Trop to come to a different conclusion here.
But there are additional factors which because of time I will merely touch upon which would lead the Court, I hope even those members of the Court who did not participate in the majority decision here because they were the minority or because they weren't on the bench, to say that in this case, the application of this statute there is a violation of due process.
First, I call Your Honors' attention to the fact that this is an offense, a lower serious offense, less serious from the violation in Trop, it is punishable by death.
This is of course five years and one case as Mr. Davis' counsel argued this morning pointed out, there was a very serious violation of a duty once a man is a soldier.
Secondly, this is under a statute providing for a loss of citizenship without judicial trial or court-martial and this point that was made by the Chief Justice in Trop in commenting in passing and as a point that was made by Mr. Justice Frankfurter in his Trop dissent, when he referred there to a conviction duly resulting from a proceeding conducted in accordance with all of the relevant constitutional safeguards.
Thirdly, this statute doesn't even name the tribunal, court-martial or otherwise, that is ultimately to make the determination which was made by the Secretary of State.
Fourthly, we have addressed ourselves to the statutory presumption which we think was implicit in the board's decision below and even in the Courts although it wasn't mentioned and say that -- that is an unreasonable presumption.
And finally, we point out that the result in this case is statelessness.
Now, we agree with counsel, Mr. Davis, who argue this morning that the fact that he has a client who were to do a Masteral doesn't mean that he isn't being punished within the meaning of the Eighth or the Fifth Amendment as you consider it here because he still reflected Mexican nationality.
And we are not suggesting there should be a differentiation between the two cases.
We are saying that here, the Court is squarely faced for the first time with the statelessness issue and that it must take it into consideration determining the reasonableness of the punishment, point made by Mr. Justice Brennan in his concurring opinion in Trop.
How reasonable is it to impose not only alienage but statelessness in a world in which everyone knows or require no oration by me, indicate a significance from the point of view of national life, state and federal and from the point of view of international life where you're left without the protection of your country.
And it was in, I think, Nishikawa that Mr. Justice Harlan commented on the fact that in Nishikawa, they were dealing with the man who was merely turning back to his other nationality.
Now, I turn you for a moment to the impact at first which Mr. Davis has relied upon although we rely upon and they say the views expressed by Mr. Justice Whittaker and as a principle laid down in Perez.
It is Perez' dissenting memorandum when he pointed out that there was no possible embarrassment to our foreign relations and so to here.
But if we take the majority opinion in Perez, that it's predicated upon a statement that the people or government of a foreign country may regard the action in so -- the action in Perez to be the action of his government.
This was voting, Your Honors will recall or at least as a reflection, if not an expression, of its policy.
Now, surely nobody will suggest that the man who remains abroad to avoid his draft obligation is speaking for the United States of America or reflecting the policy of United States and therefore we don't have that particular problem.
I may also say that this developed foreign relations argument which we have here, was not made by the Government's very thoughtful counsel.
I think the same in Gonzales against Landon where they have the same legislative history to rely upon, the same consideration of policy and yet the foreign policy consideration was mentioned in a word possibly in passing.
None of the highly developed, what I think as afterthought here attempt to ascribe to Congress, a worry about foreign relations.
Now, the point is made by Mr. Davis that there was flight from this country passing over the question of whether or not there was flight when in this case considered there wasn't flight but remaining abroad.
But let me point out that Congress never intended the flight or remaining abroad problem to be the consideration here because the 1865 statute referred to not only leaving the country but leaving the district of your draft board, hardly proof of the concern for foreign relations in moving from New York to Philadelphia.
Secondly, the present statute is phrased in terms of leaving the United States to remaining abroad, not entering a foreign country.
I think that's not a critical point but in some indication that Congress in not using the words “remaining in a foreign country” or going to a foreign country wasn't thinking of the foreign relations problem.
There is absolutely no legislative history to show a concern with foreign relations.
In the 1865 statute which the Government has several times said in Gonzales, in Perez, in Nishikawa, was an omnibus military statute -- military measure, there is no indication that when the statute came forward again in 1878, the revised statute, in 1912 that -- or in 1944 that there was a concern for foreign relation.
All of this is very skillful, very able theoretical analysis by counsels such as we always engage in of course but is not the reflection of the view of Congress.
And indeed, why did not, if this was a foreign relations problem, the Cabinet Committee of 1938 include draft evasion with delinquency -- with desertion?
There was the Secretary of State sitting on the Cabinet Committee.
It was not until 1944 that we had the problem raised by the Attorney General, the Chief Enforcement Officer of the Government and this is dealt with in the brief but in emphasizing the fact that this was an intention to punish people for avoiding their obligation.
Justice Felix Frankfurter: But it wasn't raised by the Cabinet Committee because the evil hasn't disclosed itself.
Mr. Leonard B. Boudin: Well, the evil had a chance to disclose itself from 1865 on --
Justice Felix Frankfurter: No.
Mr. Leonard B. Boudin: If there was an evil.
Justice Felix Frankfurter: From 1865 down to 1940 allowed a weakling of memory, doesn't it?
Mr. Leonard B. Boudin: But -- no.
But there is nothing if -- assuming there are weakling of memory Your Honor, I think the counsel was able enough to find evidence of congressional concern if that has existed between 1865 and 1944 concern over foreign relations so I'm talking about it.
But let me just address myself for a moment to the question of sovereignty, the sovereignty of the United States.
I will not repeat what Mr. Davis said this morning and the obligations of a citizen.
Of course the man who remains abroad to avoid the draft is violating a cardinal attribute of citizenship -- of responsibility of the citizen.
And so is the person who violates the tax laws and so is the person who is otherwise delinquent in his duties to the Government including the man who has served, let us say, in the Government and who has betrayed the public trust and so is the person who, this Court said in Blackmer against the United States violated his duty of citizenship when he didn't return to the United States to testify pursuant to the subpoena in (Inaudible).
All of these are very important obligations of citizenship, that isn't the point.
The question is whether they can be punished by carrying one out of the body politic and saying, “You are not a citizen anymore, you are stateless here”.
I grant you that these are important obligations of citizenship but that doesn't determine the problem.
I know that Judge (Inaudible) a very able judge in all Southern District in New York very often said that he will impose a very serious punishment for the tax evader.
I heard him deliver address on that once because he said, “This is the most serious offense that he regards, the man who will not support his own country by cheating on it when it comes to taxes”, and the Blackmer thing is where this Court previously decided.
This Court has never decided that in the exercise of what is called “sovereignty”, it may take away citizenship from a citizen.
In (Inaudible) McKenzie against Hare, it recognized the transfer by what it regarded as the unilateral decision of the citizen to adopt another nationality.
There was a general discussion of sovereignty but it didn't say that in the absence of this clear intention to transfer, there was going to be -- it was going to be an exercise of sovereignty.
And neither in Trop nor in Perez nor in any other case thus far coming to this Court at the very elaborate arguments of the Government made brilliantly I may say by Mr. Davis usually, persuaded this Court that independent of foreign relations, independent of the war power which connects this is as just a punishment, there is some vague sovereign power which allows the Government to say that the citizens who theoretically control it, you are not one of us anymore, get out, become an alien or a stateless person.
This Court has not yet and I hope will not in this case go so far as to say that this general doctrine of sovereign power must prevail where, under the foreign relations power and under the war power, it is impossible to sustain a continuous statute.
I thank Your Honors.
Chief Justice Earl Warren: Mr. Davis.
Rebuttal of Oscar H. Davis
Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.
I would like to say because we don't covered it in our brief that the material on which Mr. Boudin relied which appears in the American Civil Liberties Union brief on the issue of 360 relating to the general legislative history of the 1952 Act in Section 106 which was proposed and which was deleted that that entire subject deals with aliens with the problem of deportation and exclusion.
The immigration service did try to get a provision which will make the findings -- administrative findings conclusive, not renewable at all even in habeas corpus and that was rejected.
And this Court in the Pedreiro and the Tom We Shung cases did hold that declaratory relief would be available for deported aliens or aliens ordered deported or aliens ordered excluded but two things are very important.
One is, that the 1952 statute has no provisions for judicial review of alien exclusion or deportation are matters unlike Section 360, one, and two, that the court allowed declaratory judgment after there had been the administrative hearing and there had been a final determination and there was an administrative record, not before as in this case.
Chief Justice Earl Warren: Mr. Davis, how do you answer Mr. Boudin's argument that there is a large class of citizens who are without this law and if it is exclusive, there is no procedure provided for those people to gain after except United States?
Mr. Oscar H. Davis: My answer Mr. Justice is that when that issue arises, it will have to be decided whether Congress could constitutionally provide, as I think it's sought to do, that citizens who -- Americans going abroad who had never physically been present in United States, the only excluded class are people born abroad who have never physically been in the United States and who are over 16 years of age, that's the only exclusive class never who'd have --
Chief Justice Earl Warren: No -- no rights of any kind --
Mr. Oscar H. Davis: I think --
Chief Justice Earl Warren: -- no procedure.
Mr. Oscar H. Davis: I think Congress intended that.
Chief Justice Earl Warren: Is there --
Mr. Oscar H. Davis: I think the issue --
Chief Justice Earl Warren: -- anything in the legislative history that would indicate that?
Mr. Oscar H. Davis: The fact that this occurs again and again that they want to exclude this class of -- they want to exclude from the provisions of the statute this class of persons.
I would think that the Court would have to determine whether that could constitutionally be done.
Of course they do have the right to come to the courts and seek habeas corpus.
Now, that Congress did not seek to take away from them.
They could come to Canada, Mexico or to ports if they get there.
Justice Felix Frankfurter: May I suggest another answer.
Mr. Oscar H. Davis: Yes sir.
Justice Felix Frankfurter: Namely, Section 10 of the Administrative Procedure Act.
Mr. Oscar H. Davis: If it's inadequate.
Justice Felix Frankfurter: Deals with the existence of a specific act.
When it is inadequate, it doesn't follow because the procedural provision normally added is to be restricted in its meaning because in a particular class of cases as an inadequate (Inaudible), then it could be taken care of by declaratory judgment.
Mr. Oscar H. Davis: Yes, I think that is correct.
Now on the issue, may I say just one thing?
Chief Justice Earl Warren: You may take it for the remaining two minutes.
Mr. Oscar H. Davis: Thank you sir.
On the merits of constitutionality on the issue of punishment, I would just like to recall that the Court which it probably well now is already that it is three times recently said explicitly that to accuse Congress a punishment when Congress did not think that it was imposing punishment would require a tremendously clear showing.
It did that and said that in the Flemming and Nestor case, in the New York Waterfront case, the De Veau against Braisted and in the Communist Party case on which the hearing was denied yesterday.
I think you will not find in this -- in the legislative history of the statute or the terms of this statute anything that could require Your Honors to say that there had been such a clear showing that what was not punished in Perez is punishment in this case.
I think rather Congress was thinking that it was exercising other functions than the functions of punishment and that it was not seeking to impose punishment without criminal -- without punishment in the constitutional sense without criminal procedure which as the Constitution requires and must be followed if punishment is to be imposed.