| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 8 |
| [3] | 1951.US.40475 <http://www.versuslaw.com>; 341
U.S. 123, 71 S. Ct. 624, 95 L. Ed. 817 |
| [4] | decided: April 30, 1951. |
| [5] | JOINT ANTI-FASCIST REFUGEE
COMMITTEE v. MCGRATH, ATTORNEY GENERAL, ET AL. |
| [6] | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.*fn* |
| [7] | O. John Rogge and Benedict Wolf argued the cause for petitioner in No.
8. With them on the brief was Murray A. Gordon. |
| [8] | David Rein argued the cause for petitioners in No. 7. With him on the
brief were Abraham J. Isserman and Joseph Forer. |
| [9] | Allan R. Rosenberg argued the cause and filed a brief for petitioners
in No. 71. |
| [10] | Solicitor General Perlman argued the cause for respondents. With him
on the briefs were Assistant Attorney General Morison, James L. Morrisson
and Samuel D. Slade. |
| [11] | For the opinions of the Justices constituting the majority of the
Court, see: Opinion of Mr. Justice Burton, joined by Mr. Justice Douglas,
pp. 124-142. Opinion of Mr. Justice Black, pp. 142-149. Opinion of Mr.
Justice Frankfurter, pp. 149-174. Opinion of Mr. Justice Douglas, pp.
174-183. Opinion of Mr. Justice Jackson, pp. 183-187. For the dissenting
opinion of Mr. Justice Reed, joined by The Chief Justice and Mr. Justice
Minton, see pp. 187-213. Mr. Justice Clark took no part in the
consideration or decision of any of these cases. |
| [12] | Author: Burton |
| [13] | MR. JUSTICE BURTON announced the judgment of the Court and delivered
the following opinion, in which MR. JUSTICE DOUGLAS joins: |
| [14] | In each of these cases the same issue is raised by the dismissal of a
complaint for its failure to state a claim upon which relief can be
granted. That issue is whether, in the face of the facts alleged in the
complaint and therefore admitted by the motion to dismiss, the Attorney General
of the United States has authority to include the complaining organization
in a list of organizations designated by him as Communist and furnished by
him to the Loyalty Review Board of the United States Civil Service
Commission. He claims to derive authority to do this from the following
provisions in Part III, § 3, of Executive Order No. 9835, issued by the
President, March 21, 1947: |
| [15] | "PART III -- RESPONSIBILITIES OF CIVIL SERVICE
COMMISSION |
| [16] | "3. The Loyalty Review Board shall currently be furnished by the
Department of Justice the name of each foreign or domestic organization,
association, movement, group or combination of persons which the Attorney
General, after appropriate investigation and determination, designates as
totalitarian, fascist, communist or subversive, or as having adopted a
policy of advocating or approving the commission of acts of force or
violence to deny others their rights under the Constitution of the United
States, or as seeking to alter the form of government of the United States
by unconstitutional means. |
| [17] | "a. The Loyalty Review Board shall disseminate such information to all
departments and agencies." 3 CFR, 1947 Supp., pp. 129, 131, 12 Fed. Reg.
1935, 1938. |
| [18] | The respective complaints describe the complaining organizations as
engaged in charitable or civic activities or in the business of fraternal
insurance. Each implies an attitude of cooperation and helpfulness, rather
than one of hostility or disloyalty, on the part of the organization
toward the United States. Two of the complaints deny expressly that the
organization is within any classification specified in Part III, § 3, of
the order. For
the reasons hereinafter stated, we conclude that, if the allegations of
the complaints are taken as true (as they must be on the motions to
dismiss), the Executive Order does not authorize the Attorney General to
furnish the Loyalty Review Board with a list containing such a designation
as he gave to each of these organizations without other justification.
Under such circumstances his own admissions render his designations
patently arbitrary because they are contrary to the alleged and
uncontroverted facts constituting the entire record before us. The
complaining organizations have not been afforded any opportunity to
substantiate their allegations, but at this stage of the proceedings the
Attorney General has chosen not to deny their allegations and has not
otherwise placed them in issue. |
| [19] | Whatever may be his authority to designate these organizations as
Communist upon undisclosed facts in his possession, he has not chosen to
limit himself to that authorization. By his present procedure he has
claimed authority so to designate them upon the very facts alleged by them
in their own complaints. Self-serving or not, those allegations do not
state facts from which alone a reasonable determination can be derived
that the organizations are Communist. To defend such a designation of
them, on the basis of the complaints alone, is an assertion of
Presidential authority so to designate an organization at the option of
the Attorney General without reliance upon either disclosed or undisclosed
facts supplying a reasonable basis for the determination. It is that, and
only that outer limit of the authority of the Attorney General that is now
before us. |
| [20] | At least since 1939, increasing concern has been expressed, in and out
of Congress, as to the possible presence in the employ of the Government
of persons disloyal to it. This is reflected in the legislation, reports
and executive orders culminating in Executive Order No. .*fn1
That order announced the President's Employees Loyalty Program in the
Executive Branch of the Government. It states that both "maximum
protection must be afforded the United States against infiltration of
disloyal persons into the ranks of its employees, and equal protection
from unfounded accusations of disloyalty must be afforded the loyal
employees of the Government: . . . ." It provides for the Loyalty Review
Board and sets up a standard for refusals of and removals from employment
on grounds relating to loyalty. It outlines the use to be made in that
connection of the list of organizations to be furnished by the Attorney
General.*fn2
The organizations
to be designated on that list are not limited to those having federal
employees in their memberships. They may even exclude such employees from
membership. Accordingly, the impact of the Attorney General's list is by
no means limited to persons who are subject to the Employees Loyalty
Program. |
| [21] | The Attorney General included each of the complaining organizations in
the list he furnished to the Loyalty Review Board November 24, 1947. That
list was disseminated by the Board to all departments and agencies of the
United States December 4, 1947. 13 Fed. Reg. 1473.*fn3
The complaints allege that such action resulted in
nationwide publicity and caused the injuries to the complaining
organizations which are detailed later. September 17, 1948, during the
pendency of the instant cases but before action upon the appeals in any of
them, "the Attorney General furnished the Loyalty Review Board with a
consolidated list containing the names of all of the organizations
previously designated by him as within Executive Order 9835, segregated
according to the classifications enumerated in section 3, Part III, on the
basis of dominant characteristics."*fn4
He enumerated six classifications and classified the three complaining
organizations as "Communist."*fn5
The
instant cases originated in the District Court for the District of
Columbia and come here after affirmance by the Court of Appeals. We
granted certiorari because of the importance of the issues and their
relation to the Employees Loyalty Program. No. 8, 339 U.S. 910; No. 7, 339 U.S. 956; No. 71, 340 U.S. 805. |
| [22] | No. 8. -- THE REFUGEE COMMITTEE CASE |
| [23] | The complainant is the Joint Anti-Fascist Refugee Committee, an
unincorporated association in the City and State of New York. It is the
petitioner here. The defendants in the original action were the Attorney
General, Tom C. Clark, and the members of the Loyalty Review Board. J.
Howard McGrath has been substituted as the Attorney General
and he and the members of that Board are the respondents
here. |
| [24] | The following statement, based on the allegations of the complaint,
summarizes the situation before us: The complainant is "a charitable
organization engaged in relief work" which carried on its relief
activities from 1942 to 1946 under a license from the President's War
Relief Control Board. Thereafter, it voluntarily submitted its program,
budgets and audits for inspection by the Advisory Committee on Voluntary
Foreign Aid of the United States Government. Since its inception, it has,
through voluntary contributions, raised and disbursed funds for the
benefit of anti-Fascist refugees who assisted the Government of Spain
against its overthrow by force and violence. The organization's aims and
purposes "are to raise, administer and distribute funds for the relief and
rehabilitation of Spanish Republicans in exile and other anti-fascist
refugees who fought in the war against Franco."*fn6 |
| [25] | It has disbursed $1,011,448 in cash, and $217,903 in kind, for the
relief of anti-Fascist refugees and their families. This relief has
included money, food, shelter, educational facilities, medical treatment
and supplies, and clothing to recipients in 11 countries, including the
United States. The acts of the Attorney General and the Loyalty Review
Board, purporting to be taken by them under authority of the Executive
Order, have seriously and irreparably impaired, and will continue to so
impair, the reputation of the organization and the moral support and good
will of the American people necessary for the continuance of its
charitable activities. Upon information and belief, these acts have caused
many contributors, especially present and prospective civil servants, to
reduce or discontinue their contributions to the organization; members and
participants in its activities have been "vilified and subjected to public
shame, disgrace, ridicule and obloquy . . ." thereby inflicting upon it
economic injury and discouraging participation in its activities; it has
been hampered in securing meeting places; and many people have refused to
take part in its fund-raising activities. |
| [26] | This complaint does not contain an express denial that the complaining
organization is within the classifications named
in Part III, § 3, of Executive Order No. 9835. It does, however, state
that the actions of the Attorney General and the Loyalty Review Board
which are complained of are unauthorized and without warrant in law and
amount to a deprivation of the complainant's rights in violation of the
Constitution; that Executive Order No. 9835, on its face and as construed
and applied, violates the First, Fifth, Ninth and Tenth Amendments to the
Constitution of the United States and that § 9A of the Hatch Act, 53 Stat.
1148, 5 U. S. C. (1946 ed., Supp. III) § 118j, insofar as it purports to
authorize the instant application of the order, is void.*fn7
It asks for declaratory and injunctive relief, alleging that the
complaining organization is suffering irreparable loss and that no
adequate remedy is available to it except through the equity powers of the
District Court. That court granted a motion to dismiss the complaint for
its failure to state a claim upon which relief could be granted and denied
the complainant's motion for a preliminary injunction.*fn8
The Court of Appeals affirmed, one judge dissenting. 85 U. S. App. D.C.
255, 177 F.2d 79. |
| [27] | No. 7. -- THE NATIONAL COUNCIL CASE |
| [28] | In this case the court below relied upon its decision in the Refugee
Committee case and reached the same result, per curiam (unreported).
Except as indicated below in our summary of the facts alleged, this case,
for our purposes, is like the first. The complainants, who are the petitioners
here, are the National Council of American-Soviet Friendship, Inc., a New
York nonprofit membership corporation, organized in 1943; the Denver
Council of American-Soviet Friendship, a Colorado unincorporated
association and local affiliate of the National Council; and six
individual officers and directors of one or the other of these
organizations. The purpose of the National Council "is to strengthen
friendly relations between the United States and the Union of Soviet
Socialist Republics by disseminating to the American people educational
material regarding the Soviet Union, by developing cultural relations
between the peoples of the two nations, and by combatting anti-Soviet
propaganda designed to disrupt friendly relations between the peoples of
these nations and to divide the United Nations." The complaint alleges
that all of the complainants are seriously and irreparably injured in
their capacity to conduct the National Council's educational, cultural and
fund-raising program, and that the individual complainants have suffered
personal losses such as the removal of one from an assistant rectorship of
a church, the loss by another of a teaching position, and numerous
cancellations of lecturing and professional engagements. The complaint
expressly states that -- |
| [29] | "In all its activities the NATIONAL COUNCIL has sought to further the
best interests of the American people by lawful, peaceful and
constitutional means. It has never in any way engaged in any conduct or
activity which provides any basis for it to be designated as
'totalitarian, fascist, communist or subversive, or as having adopted a
policy of advocating or approving the commission of acts of force or
violence to deny others their rights under the Constitution of the United
States, or as seeking to alter the form of government of the United States
by unconstitutional means.'" No.
71. -- THE INTERNATIONAL WORKERS CASE |
| [30] | The complaining organization, which is the petitioner here, is a
fraternal benefit society, organized in 1930 as a corporation under the
Insurance Law of the State of New York, operating for the mutual benefit
of its members and their beneficiaries and not for profit. It is licensed
and operates in the District of Columbia and several states; its purposes
are comparable to those of fraternal benefit societies in general; it
operates under a lodge system and has a representative form of government;
at the time of the promulgation of the Department of Justice list it had
185,000 members, including employees of the Federal Government and of
various states and municipalities; it provided life insurance protection
for its membership exceeding $120,000,000; its activities have been the
subject of administrative and judicial proceedings in addition to those
before the insurance departments of the states in which it functions, and,
as a result of such proceedings, "the purposes and activities of the order
have been held to be free from any illegal or improper taint . . . ."*fn9
Among the allegations of damage, made upon information and belief, the
complaint states that, solely
as a result of the respondents' acts, there have been instituted against
the order and its members a multiplicity of administrative proceedings,
including those to rescind licenses, franchises, or tax exemptions, or to
impede the naturalization of its members. Because of respondents' acts,
many such members, especially present and prospective civil servants, have
resigned or withdrawn from membership in the order, and many potential
members have declined to join it.*fn10 |
| [31] | The second amended complaint was dismissed by the District Court, 88 F.Supp. 873. That judgment was affirmed by the
Court of Appeals, one judge dissenting. 86 U. S. App. D.C. 287,
182 F.2d 368. |
| [32] | If, upon the allegations in any of these complaints, it had appeared
that the acts of the respondents, from which relief was sought, were
authorized by the President under his Executive Order No. 9835, the case
would have bristled with constitutional issues. On that basis the
complaint would have raised questions as to the justiciability and merit
of claims based upon the First, Fifth, Ninth and Tenth Amendments to the
Constitution. It is our obligation, however, not to reach those issues
unless the allegations before us squarely present them. See United States
v. Lovett, 328 U.S. 303, 320. Cf. United Public
Workers v. Mitchell, 330 U.S. 75; Myers v. United
States, 272 U.S. 52. |
| [33] | The Executive Order contains no express or implied attempt to confer
power on anyone to act arbitrarily or capriciously -- even assuming a
constitutional power to do so. The order includes in the purposes of the
President's program not only the protection of the United States against
disloyal employees but the "equal protection" of loyal employees against
unfounded accusations of disloyalty. 3 CFR, 1947 Supp., p. 129, 12 Fed.
Reg. 1935. The standards stated for refusal of and removal from employment
require that "on all the evidence, reasonable grounds [shall] exist for
belief that the person involved is disloyal . . . ." Id., at 132, 12 Fed.
Reg. 1938. Obviously it would be contrary to the purpose of that order to
place on a list to be disseminated under the Loyalty Program any
designation of an organization that was patently arbitrary and contrary to
the uncontroverted material facts. The order contains the express
requirement that each designation of an organization by the Attorney
General on such a list shall be made only after an "appropriate . . .
determination" as prescribed in Part III, § 3. An "appropriate"
governmental "determination" must be the result of a process of reasoning.
It cannot be an arbitrary fiat contrary to the known facts. This is
inherent in the meaning of "determination." It is implicit in a government
of laws and not of men. Where an act of an official plainly falls outside
of the scope of his authority, he does not make that act legal by doing it
and then invoking the doctrine of administrative construction to cover it.
It
remains, therefore, for us to decide whether, on the face of these
complaints, the Attorney General is acting within his authority in
furnishing the Loyalty Review Board with a designation of the complaining
organizations either as "Communist" or as within any other classification
of Part III, § 3, of the order. In the National Council and International
Workers cases, the complaining organization is alleged not only to be a
civic or insurance organization, apparently above reproach from the point
of view of loyalty to the United States, but it is also declared to be one
that is not within any classification listed in Part III, § 3, of the
order. In the Refugee Committee case, the negative allegations are omitted
but the affirmative allegations are incompatible with the inclusion of the
complaining organization within any of the designated classifications. The
inclusion of any of the complaining organizations in the designated list
solely on the facts alleged in the respective complaints, which must be
the basis for our decision here, is therefore an arbitrary and
unauthorized act. In the two cases where the complaint specifically
alleges the factual absence of any basis for the designation, and the
respondents' motion admits that allegation, the designation is necessarily
contrary to the record. The situation is comparable to one which would be
created if the Attorney General, under like circumstances, were to
designate the American National Red Cross as a Communist organization.
Accepting as common knowledge the charitable and loyal status of that
organization, there is no doubt that, in the absence of any contrary claim
asserted against it, the Executive Order does not authorize its inclusion
by the Attorney General as a "Communist" organization or as coming within
any of the other classifications named in Part III, § 3, of the
order. |
| [34] | Since we find that the conduct ascribed to the Attorney General by the
complaints is patently arbitrary, the deference ordinarily
due administrative construction of an administrative order is not
sufficient to bring his alleged conduct within the authority conferred by
Executive Order No. 9835. The doctrine of administrative construction
never has been carried so far as to permit administrative discretion to
run riot. If applied to this case and compounded with the assumption that
the President's Executive Order was drafted for him by his Attorney
General, the conclusion would rest upon the premise that the Attorney
General has attempted to delegate to himself the power to act arbitrarily.
We cannot impute such an attempt to the Nation's highest law enforcement
officer any more than we can to its President. |
| [35] | In thus emphasizing an outer limit to what can be considered an
authorized designation of an organization under the order, the instant
cases serve a valuable purpose. They demonstrate that the order does not
authorize, much less direct, the exercise of any such absolute power as
would permit the inclusion in the Attorney General's list of a designation
that is patently arbitrary or contrary to fact.*fn11
When
the acts of the Attorney General and of the members of the Loyalty Review
Board are stripped of the Presidential authorization claimed for them by
the respondents, they stand, on the face of these complaints, as
unauthorized publications of admittedly unfounded designations of the
complaining organizations as "Communist." Their effect is to cripple the
functioning and damage the reputation of those organizations in their
respective communities and in the nation. The complaints, on that basis,
sufficiently charge that such acts violate each complaining organization's
common-law right to be free from defamation. "A communication is
defamatory if it tends so to harm the reputation of another as to lower
him in the estimation of the community or to deter third persons from
associating or dealing with him." Restatement, Torts, § 559.*fn12 |
| [36] | These complaints do not raise the question of the personal liability
of public officials for money damages caused by their ultra vires acts.
See Spalding v. Vilas, 161 U.S. 483. They
ask only for declaratory and injunctive relief striking the names of the
designated organizations from the Attorney General's published list and,
as far as practicable, correcting the public records. |
| [37] | The respondents are not immune from such a proceeding. Only recently,
this Court recognized that "the action of an officer of the sovereign (be
it holding, taking or otherwise legally affecting the plaintiff's
property) can be regarded as so 'illegal' as to permit a suit for specific
relief against the officer as an individual . . . if it is not within the
officer's statutory powers or, if within those powers . . . if the powers,
or their exercise in the particular case, are constitutionally void."
Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 701-702. The same is true here, where the acts complained
of are beyond the officer's authority under the Executive Order.*fn13 |
| [38] | Finally, the standing of the petitioners to bring these suits is
clear.*fn14
The touchstone to justiciability is injury to
a legally protected right*fn15
and the right of a bona fide charitable organization to carry on its work,
free from defamatory statements of the kind discussed, is such a
right. |
| [39] | It is unrealistic to contend that because the respondents gave no
orders directly to the petitioners to change their course of conduct,
relief cannot be granted against what the respondents actually did. We
long have granted relief to parties whose legal rights have been violated
by unlawful public action, although such action made no direct demands
upon them. Columbia Broadcasting System v. United States, 316
U.S. 407; Pierce v. Society of Sisters, 268 U.S. 510; Buchanan v. Warley, 245 U.S. 60;
Truax v. Raich, 239 U.S. 33.*fn16
The complaints here amply allege past and impending serious damages caused
by the actions of which the petitioners complain. |
| [40] | Nothing we have said purports to adjudicate the truth of petitioners'
allegations that they are not in fact communistic. We have assumed that
the designations made by the Attorney General are arbitrary because we are
compelled to make that assumption by his motions to dismiss the
complaints. Whether the complaining organizations are in fact communistic
or whether the Attorney General possesses information from which he could
reasonably find
them to be so must await determination by the District Court upon
remand. |
| [41] | For these reasons, we find it necessary to reverse the judgments of
the Court of Appeals in the respective cases and to remand each case to
the District Court with instructions to deny the respondents' motion that
the complaint be dismissed for failure to state a claim upon which relief
can be granted. |
| [42] | Reversed and remanded. |
| [43] | MR. JUSTICE CLARK took no part in the consideration or decision of any
of these cases. |
| [44] | Disposition |
| [45] | 85 U. S. App. D.C. 255, 177 F.2d 79; 86 U. S.
App. D.C. 287, 182 F.2d 368, reversed. |
| [46] | MR. JUSTICE BLACK, concurring. |
| [47] | Without notice or hearing and under color of the President's Executive
Order No. 9835, the Attorney General found petitioners guilty of harboring
treasonable opinions and designs, officially branded them as Communists,
and promulgated his findings and conclusions for particular use as
evidence against government employees suspected of disloyalty. In the
present climate of public opinion it appears certain that the Attorney
General's much publicized findings, regardless of their truth or falsity,
are the practical equivalents of confiscation and death sentences for any
blacklisted organization not possessing extraordinary financial, political
or religious prestige and influence. The Government not only defends the
power of the Attorney General to pronounce such deadly edicts but also
argues that individuals or groups so condemned have no standing to seek
redress in the courts, even though a fair judicial hearing might
conclusively demonstrate their loyalty. My basic reasons for rejecting
these and other contentions of the Government are in summary the
following: (1)
I agree with MR. JUSTICE BURTON that petitioners have standing to sue for
the reason among others that they have a right to conduct their admittedly
legitimate political, charitable and business operations free from
unjustified governmental defamation. Otherwise, executive officers could
act lawlessly with impunity. And, assuming that the President may
constitutionally authorize the promulgation of the Attorney General's
list, I further agree with MR. JUSTICE BURTON that this Court should not
attribute to the President a purpose to vest in a cabinet officer the
power to destroy political, social, religious or business organizations by
"arbitrary fiat," and thus the methods employed by the Attorney General
exceed his authority under Executive Order No. 9835. |
| [48] | (2) Assuming, though I deny, that the Constitution permits the
executive officially to determine, list and publicize individuals and
groups as traitors and public enemies, I agree with MR. JUSTICE
FRANKFURTER that the Due Process Clause of the Fifth Amendment would bar
such condemnation without notice and a fair hearing. My views previously
expressed under similar circumstances are relevant here. E. g., dissenting
opinion in Ludecke v. Watkins, 335 U.S. 160, 173; and
see In re Oliver, 333 U.S. 257. |
| [49] | (3) More fundamentally, however, in my judgment the executive has no
constitutional authority, with or without a hearing, officially to prepare
and publish the lists challenged by petitioners. In the first place, the
system adopted effectively punishes many organizations and their members
merely because of their political beliefs and utterances, and to this
extent smacks of a most evil type of censorship. This cannot be reconciled
with the First Amendment as I interpret it. See my dissent in American
Communications Assn. v. Douds, 339 U.S. 382, 445.
Moreover, officially prepared and proclaimed governmental blacklists
possess almost every quality of bills of attainder, the use of which was
from the beginning forbidden to both national and state governments. U.S.
Const., Art. I, §§ 9, 10. It is true that the classic bill of attainder
was a condemnation by the legislature following investigation by that
body, see United States v. Lovett, 328 U.S. 303,
while in the present case the Attorney General performed the official
tasks. But I cannot believe that the authors of the Constitution, who
outlawed the bill of attainder, inadvertently endowed the executive with
power to engage in the same tyrannical practices that had made the bill
such an odious institution.*fn1 |
| [50] | There is argument that executive power to issue these pseudo-bills of
attainder can be implied from the undoubted power of the Government to
hire and discharge employees and to protect itself against treasonable
individuals or organizations.*fn2
Our basic law, however, wisely withheld
authority for resort to executive investigations, condemnations and
blacklists as a substitute for imposition of legal types of penalties by
courts following trial and conviction in accordance with procedural
safeguards of the Bill of Rights.*fn3 |
| [51] | In this day when prejudice, hate and fear are constantly invoked to
justify irresponsible smears and persecution of persons even faintly
suspected of entertaining unpopular views, it may be futile to suggest
that the cause of internal security would be fostered, not hurt, by
faithful adherence to our constitutional guarantees of individual liberty.
Nevertheless, since prejudice manifests itself in much the same way in
every age and country and since what has happened before can happen again,
it surely should not be amiss to call attention to what has occurred when
dominant governmental groups have been left free to give uncontrolled rein
to their prejudices against unorthodox minorities. As specific
illustration, I am adding as an appendix Macaulay's account of a
parliamentary proscription which took place when popular prejudice was
high; this is only one out of many similar instances
that readily can be found.*fn4
Memories of such events were fresh in the minds of the founders when they
forbade the use of the bill of attainder. |
| [52] | APPENDIX TO OPINION OF MR. JUSTICE BLACK. |
| [53] | James II, the last Stuart king of England, was driven from his throne
in 1688 by William of Orange. After a brief sojourn at Saint Germains in
France, James landed in Ireland where he was supported by those Irish
Catholics who had suffered greatly at the hands of the English Protestant
colonists. One of his first official acts was to call an Irish Parliament
which enacted the bill of attainder described by the historian Macaulay as
follows: |
| [54] | ". . . [the Commons] respected no prerogative, however ancient,
however legitimate, however salutary, if they apprehended that [James II]
might use it to protect the race which they abhorred. They were not
satisfied till they had extorted his reluctant consent to a portentous
law, a law without a parallel in the history of civilised countries, the
great Act of Attainder. |
| [55] | "A list was framed containing between two and three thousand names. At
the top was half the peerage of Ireland. Then came baronets, knights,
clergymen, squires, merchants, yeomen, artisans, women, children. No
investigation was made. Any member who wished to rid himself of a
creditor, a rival, a private enemy, gave in the name to the clerk at the
table, and it was generally inserted without discussion. The only debate
of which any account has come down to us related to the Earl of Strafford.
He had friends in the House who ventured to offer something in his favour.
But a few words from Simon
Luttrell settled the question. 'I have,' he said, 'heard the King say some
hard things of that lord.' This was thought sufficient, and the name of
Strafford stands fifth in the long table of the proscribed. |
| [56] | "Days were fixed before which those whose names were on the list were
required to surrender themselves to such justice as was then administered
to English Protestants in Dublin. If a proscribed person was in Ireland,
he must surrender himself by the tenth of August. If he had left Ireland
since the fifth of November 1688, he must surrender himself by the first
of September. If he had left Ireland before the fifth of November 1688, he
must surrender himself by the first of October. If he failed to appear by
the appointed day, he was to be hanged, drawn, and quartered without a
trial, and his property was to be confiscated. It might be physically
impossible for him to deliver himself up within the time fixed by the Act.
He might be bedridden. He might be in the West Indies. He might be in
prison. Indeed there notoriously were such cases. Among the attainted
Lords was Mountjoy. He had been induced by the villany of Tyrconnel to
trust himself at Saint Germains: he had been thrown into the Bastile: he
was still lying there; and the Irish parliament was not ashamed to enact
that, unless he could, within a few weeks, make his escape from his cell,
and present himself at Dublin, he should be put to death. |
| [57] | "As it was not even pretended that there had been any inquiry into the
guilt of those who were thus proscribed, as not a single one among them
had been heard in his own defence, and as it was certain that it would be
physically impossible for many of them to surrender themselves in time, it
was clear that nothing but a large exercise of the royal prerogative of
mercy could prevent the perpetration of iniquities so horrible that no
precedent could be found for them even in the lamentable history of the troubles
of Ireland. The Commons therefore determined that the royal prerogative of
mercy should be limited. Several regulations were devised for the purpose
of making the passing of pardons difficult and costly: and finally it was
enacted that every pardon granted by his Majesty, after the end of
November 1689, to any of the many hundreds of persons who had been
sentenced to death without a trial, should be absolutely void and of none
effect. Sir Richard Nagle came in state to the bar of the Lords and
presented the bill with a speech worthy of the occasion. 'Many of the
persons here attainted,' said he, 'have been proved traitors by such
evidence as satisfies us. As to the rest we have followed common
fame.' |
| [58] | "With such reckless barbarity was the list framed that fanatical
royalists, who were, at that very time, hazarding their property, their
liberty, their lives, in the cause of James, were not secure from
proscription. The most learned man of whom the Jacobite party could boast
was Henry Dodwell, Camdenian Professor in the University of Oxford. In the
cause of hereditary monarchy he shrank from no sacrifice and from no
danger. It was about him that William [of Orange] uttered those memorable
words: 'He has set his heart on being a martyr; and I have set mine on
disappointing him.' But James was more cruel to friends than William to
foes. Dodwell was a Protestant: he had some property in Connaught: these
crimes were sufficient; and he was set down in the long roll of those who
were doomed to the gallows and the quartering block. |
| [59] | "That James would give his assent to a bill which took from him the
power of pardoning, seemed to many persons impossible. . . . He might also
have seen that the right course was the wise course. Had he, on this great
occasion, had the spirit to declare that he would not shed the blood of
the innocent, and that, even as respected the guilty, he would not divest
himself of the power of tempering judgment
with mercy, he would have regained more hearts in England than he would
have lost in Ireland. But it was ever his fate to resist where he should
have yielded, and to yield where he should have resisted. The most wicked
of all laws received his sanction; and it is but a very small extenuation
of his guilt that his sanction was somewhat reluctantly
given. |
| [60] | "That nothing might be wanting to the completeness of this great
crime, extreme care was taken to prevent the persons who were attainted
from knowing that they were attainted, till the day of grace fixed in the
Act was passed. The roll of names was not published, but kept carefully
locked up in Fitton's closet. Some Protestants, who still adhered to the
cause of James, but who were anxious to know whether any of their friends
or relations had been proscribed, tried hard to obtain a sight of the
list; but solicitation, remonstrance, even bribery, proved vain. Not a
single copy got abroad till it was too late for any of the thousands who
had been condemned without a trial to obtain a pardon. |
| [61] | ". . . That the colonists, when they had won the victory, grossly
abused it, that their legislation was, during many years, unjust and
tyrannical, is most true. But it is not less true that they never quite
came up to the atrocious example set by their vanquished enemy during his
short tenure of power." |
| [62] | 3 Macaulay, History of England from the Accession of James the Second
(London, 1855), 216-220. (Footnotes appearing in the original have been
omitted.) |
| [63] | MR. JUSTICE FRANKFURTER, concurring. |
| [64] | The more issues of law are inescapably entangled in political
controversies, especially those that touch the passions of the day, the
more the Court is under duty to dispose of a controversy within the
narrowest confines that
intellectual integrity permits. And so I sympathize with the endeavor of
my brother BURTON to decide these cases on a ground as limited as that
which has commended itself to him. Unfortunately, I am unable to read the
pleadings as he does. Therefore I must face up to larger issues. But in a
case raising delicate constitutional questions it is particularly
incumbent first to satisfy the threshold inquiry whether we have any
business to decide the case at all. Is there, in short, a litigant before
us who has a claim presented in a form and under conditions "appropriate
for judicial determination"? Aetna Life Ins. Co. v. Haworth, 300
U.S. 227, 240. |
| [65] | I. |
| [66] | Limitation on "the judicial Power of the United States" is expressed
by the requirement that a litigant must have "standing to sue" or, more
comprehensively, that a federal court may entertain a controversy only if
it is "justiciable." Both characterizations mean that a court will not
decide a question unless the nature of the action challenged, the kind of
injury inflicted, and the relationship between the parties are such that
judicial determination is consonant with what was, generally speaking, the
business of the Colonial courts and the courts of Westminster when the
Constitution was framed. The jurisdiction of the federal courts can be
invoked only under circumstances which to the expert feel of lawyers
constitute a "case or controversy." The scope and consequences of the
review with which the judiciary is entrusted over executive and
legislative action require us to observe these bounds fastidiously. (See
the course of decisions beginning with Hayburn's Case, 2 Dall.
409, through Parker v. Los Angeles County, 338 U.S.
327.) These generalities have had myriad applications. Each
application, even to a situation not directly pertinent to what is
before us, reflects considerations relevant to decision here. I shall
confine my inquiry, however, by limiting it to suits seeking relief from
governmental action. |
| [67] | (1) The simplest application of the concept of "standing" is to
situations in which there is no real controversy between the parties.
Regard for the separation of powers, see Muskrat v. United States, 219 U.S. 346, and for the importance to correct
decision of adequate presentation of issues by clashing interests, see
Chicago & G. T. R. Co. v. Wellman, 143 U.S. 339,
restricts the courts of the United States to issues presented in an
adversary manner. A petitioner does not have standing to sue unless he is
"interested in and affected adversely by the decision" of which he seeks
review. His "interest must be of a personal and not of an official
nature." Braxton County Court v. West Virginia, 208 U.S. 192, 197; see also Massachusetts v. Mellon, 262 U.S.
447. The interest must not be wholly negligible, as that of a
taxpayer of the Federal Government is considered to be, Frothingham v.
Mellon, 262 U.S. 447; cf. Crampton v. Zabriskie, 101 U.S. 601. A litigant must show more than that "he
suffers in some indefinite way in common with people generally."
Frothingham v. Mellon, supra, at 488. |
| [68] | Adverse personal interest, even of such an indirect sort as arises
from competition, is ordinarily sufficient to meet constitutional
standards of justiciability. The courts may therefore by statute be given
jurisdiction over claims based on such interests. Federal Communications
Comm'n v. Sanders Radio Station, 309 U.S. 470; cf.
Interstate Commerce Comm'n v. Oregon-Washington R. Co., 288 U.S.
14. |
| [69] | (2) To require a court to intervene in the absence of a statute,
however, either on constitutional grounds or in the exercise of inherent
equitable powers, something more than adverse personal interest is needed.
This additional element is usually defined in terms which assume the
answer. It
is said that the injury must be "a wrong which directly results in the
violation of a legal right." Alabama Power Co. v. Ickes, 302
U.S. 464, 479. Or that the controversy "must be definite and
concrete, touching the legal relations of parties having adverse legal
interests." Aetna Life Ins. Co. v. Haworth, supra, 300 U.S. at
240-241. These terms have meaning only when contained by the
facts to which they have been applied. In seeking to determine whether in
the case before us the standards they reflect are met, therefore, we must
go to the decisions. They show that the existence of "legal" injury has
turned on the answer to one or more of these questions: (a) Will the
action challenged at any time substantially affect the "legal" interests
of any person? (b) Does the action challenged affect the petitioner with
sufficient "directness"? (c) Is the action challenged sufficiently
"final"? Since each of these questions itself contains a word of art, we
must look to experience to find their meaning. |
| [70] | (a) Will the action challenged at any time substantially affect the
"legal" interests of any person ? A litigant ordinarily has standing to
challenge governmental action of a sort that, if taken by a private
person, would create a right of action cognizable by the courts. United
States v. Lee, 106 U.S. 196.*fn1b
Or standing may be based on an interest created by the Constitution or a
statute. E. g., Parker v. Fleming, 329 U.S. 531;
Coleman v. Miller, 307 U.S. 433; cf. Bell v. Hood, 327 U.S. 678. But if no comparable common-law right
exists and no such constitutional or statutory interest has been created,
relief is not available judicially. Thus, at least unless capricious
discrimination is asserted, there is no protected interest in contracting
with the Government. A litigant therefore has no standing to
object that an official has misinterpreted his instructions in requiring a
particular clause to be included in a contract. Perkins v. Lukens Steel
Co., 310 U.S. 113. Similarly, a determination whether
the Government is within its powers in distributing electric power may be
of enormous financial consequence to a private power company, but it has
no standing to raise the issue. Tennessee Power Co. v. T. V. A., 306 U.S. 118; cf. Alabama Power Co. v. Ickes, 302 U.S. 464. The common law does not recognize an
interest in freedom from honest competition; a court will give protection
from competition by the Government, therefore, only when the Constitution
or a statute creates such a right. |
| [71] | (b) Does the action challenged affect petitioner with sufficient
"directness" ? Frequently governmental action directly affects the legal
interests of some person, and causes only a consequential detriment to
another. Whether the person consequentially harmed can challenge the
action is said to depend on the "directness" of the impact of the action
on him. A shipper has no standing to attack a rate not applicable to him
but merely affecting his previous competitive advantage over shippers
subject to the rate. Hines Trustees v. United States, 263 U.S.
143, 148; Sprunt & Son v. United States, 281 U.S.
249, 255, 257. When those consequentially affected may resort
to an administrative agency charged with their protection, courts are
especially reluctant to give them "standing" to claim judicial review. See
Atlanta v. Ickes, 308 U.S. 517; cf. Associated
Industries v. Ickes, 134 F.2d 694.*fn2b
But
it is not always true that only the person immediately affected can
challenge the action. The fact that an advantageous relationship is
terminable at will does not prevent a litigant from asserting that
improper interference with it gives him "standing" to assert a right of
action. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229. On this principle an alien employee was allowed to
challenge a State law requiring his employer to discharge all but a
specified proportion of alien employees, Truax v. Raich, 239
U.S. 33, and a private school to enjoin enforcement of a
statute requiring parents to send their children to public schools, Pierce
v. Society of Sisters, 268 U.S. 510. The likelihood
that the interests of the petitioner will be adequately protected by the
person directly affected is a relevant consideration, compare Columbia
System v. United States, 316 U.S. 407, 423-424, with
Schenley Corp. v. United States, 326 U.S. 432, 435,
as is, probably, the nature of the relationship involved. See Davis &
Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 220;
Truax v. Raich, 239 U.S. 33, 38-39.*fn3b |
| [72] | (c) Is the action challenged sufficiently final ? Although a litigant
is the person most directly affected by the challenged action of the
Government, he may not have "standing" to raise his objections in a court
if the action has not, as it were, come to rest.*fn4b
Courts do not review
issues, especially constitutional issues, until they have to. See Parker
v. Los Angeles County, supra, and see Brandeis, J., concurring in
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341. In part, this practice reflects the tradition that
courts, having final power, can exercise it most wisely by restricting
themselves to situations in which decision is necessary. In part, it is
founded on the practical wisdom of not coming prematurely or needlessly in
conflict with the executive or legislature. See Rochester Tel. Corp. v.
United States, 307 U.S. 125, 130-131. Controversies,
therefore, are often held non-justiciable "where the action sought to be
reviewed may have the effect of forbidding or compelling conduct on the
part of the person seeking to review it, but only if some further action
is taken by the Commission." Rochester Tel. Corp. v. United States, supra,
at 129; and see Chicago & S. Air Lines v. Waterman S. S. Corp., 333 U.S. 103. There is no "standing" to challenge a
preliminary administrative determination, although the determination
itself causes some detriment to the litigant. United States v. Los Angeles
& S. L. R. Co., 273 U.S. 299; cf. Ex parte
Williams, 277 U.S. 267. Nor does the reservation of
authority to act to a petitioner's detriment entitle him to challenge the
reservation when it is conceded that the authority will be exercised only
on a contingency which appears not to be imminent. Eccles v. Peoples Bank,
333 U.S. 426. Lack of finality also explains the
decision in Standard Scale Co. v. Farrell, 249 U.S. 571. There the Court was faced by an advisory "specification"
of characteristics desirable in ordinary measuring scales. The
specification could be enforced only by independent local officers'
withholding their approval of the equipment. Justiciability was denied.*fn5b
"Finality"
is not, however, a principle inflexibly applied. If the ultimate impact of
the challenged action on the petitioner is sufficiently probable and not
too distant, and if the procedure by which that ultimate action may be
questioned is too onerous or hazardous, "standing" is given to challenge
the action at a preliminary stage. Terrace v. Thompson, 263 U.S.
197; Santa Fe Pac. R. Co. v. Lane, 244 U.S. 492; see Waite v. Macy, 246 U.S. 606. It
is well settled that equity will enjoin enforcement of criminal statutes
found to be unconstitutional "when it is found to be essential to the
protection of the property rights, as to which the jurisdiction of a court
of equity has been invoked." E. g., Philadelphia Co. v. Stimson, 223 U.S. 605, 621.*fn6b
And if the determination challenged creates a status which enforces a
course of conduct through penal sanctions, a litigant need not subject
himself to the penalties to challenge the determination. La Crosse Tel.
Corp. v. Wisconsin Board, 336 U.S. 18; Shields v.
Utah Idaho R. Co., 305 U.S. 177. |
| [73] | (3) Whether "justiciability" exists, therefore, has most often turned
on evaluating both the appropriateness of the issues for decision by
courts and the hardship of denying judicial relief. This explains the
inference to be drawn from the cases that "standing" to challenge official
action is more apt to exist when that action is not within the scope of
official authority than when the objection to the administrative decision
goes only to its correctness. See United States v. Los Angeles & S. L.
R. Co., 273 U.S. 299, 314-315; Pennsylvania R. Co. v.
Labor Board, 261 U.S. 72; Since
its inception it has distributed relief totaling $1,229,351; currently it
is committed to regular monthly remittances of $5,400. Its revenues have
been obtained from public contributions, garnered largely at meetings and
social functions. The National Council of American-Soviet Friendship,
petitioner in No. 7, is a nonprofit membership corporation whose purpose
is alleged to be to strengthen friendly relations between the United
States and the Soviet Union by developing cultural relations "between the
peoples of the two nations" and by disseminating in this country
educational materials about Russia. It has obtained its funds through
public appeals and through collections at meetings. Petitioner in No. 71
is the International Workers Order. Its complaint states that it is a
fraternal benefit society, comprising over 1,800 lodges, with assets
totaling approximately $5,000,000. Its members pay dues for the general
expenses of the Order, and many of them make additional contributions for
life, sickness and disability insurance. In addition to its insurance
activities, the Order "attempts to encourage the preservation of the
cultural heritages and artistic values developed . . . by the peoples of
the different countries of the world and brought with them to the United
States." |
| [74] | In November, 1947, each of these organizations was included in the
list of groups designated by the Attorney General as within the provisions
of Executive Order No. 9835, the President's Loyalty Order. The list was
disseminated to all departments and agencies of the Government. Six months
later, each was with more particularity labeled "communist." Each alleges
substantial injury as a consequence. Publicity and meeting places have
become difficult for the Refugee Committee and the Council to obtain. The
federal tax exemptions of all three organizations have been revoked;
licenses necessary to solicitation of funds have been denied the Refugee
Committee; and the New York Superintendent of Insurance has begun
proceedings, in which a representative of the Attorney General of the
United States has appeared, for dissolution of the Order. Most important,
each of the organizations asserts that it has lost supporters and members,
especially from present or prospective federal employees. Claiming that
the injury is irreparable, each asks for relief by way of a declaratory
judgment and an injunction. |
| [75] | The novelty of the injuries described in these petitions does not
alter the fact that they present the characteristics which have in the
past led this Court to recognize justiciability. They are unlike claims
which the courts have hitherto found incompatible with the judicial
process. No lack of finality can be urged. Designation works an immediate
substantial harm to the reputations of petitioners. The threat which it
carries for those members who are, or propose to become, federal employees
makes it not a finicky or tenuous claim to object to the interference with
their opportunities to retain or secure such employees as members. The
membership relation is as substantial as that protected in Truax v. Raich
and Pierce v. Society of Sisters, supra. And it is at least doubtful that
the members could or would adequately present the organizations'
objections to the designation provisions of the Order. Only
on the ground that the organizations assert no interest protected in
analogous situations at common law, by statute, or by the Constitution,
therefore, can plausible challenge to their "standing" here be made. But
the reasons which made an exercise of judicial power inappropriate in
Perkins v. Lukens Steel Co., Tennessee Power Co. v. T. V. A., and Alabama
Power Co. v. Ickes, supra, are not apposite here. There the injuries were
such that, had they not been inflicted by the Government, they clearly
could not have been redressed. In Perkins v. Lukens Page 160} Steel Co.,
it was not asserted that the authority under which the Government acted
was invalid; only the correctness of an interpretation of a statute in the
course of the exercise of an admitted power was challenged. In the Power
cases protection from competition was sought; but the thrust of the law is
to preserve competition, not to give protection from it. The action there
challenged, furthermore, was not directed at named individuals. Here, on
the other hand, petitioners seek to challenge governmental action
stigmatizing them individually. They object, not to a particular erroneous
application of a valid power, but to the validity of the regulation
authorizing the action. They point to two types of injury, each of a sort
which, were it not for principles of governmental immunity, would be
clearly actionable at common law. |
| [76] | This controversy is therefore amenable to the judicial process.*fn9b
Its justiciability does not depend solely on the fact that the action
challenged is defamatory. Not every injury inflicted by a defamatory
statement of a government officer can be redressed in court. On the
balance of all considerations, the exercise here of judicial power accords
with traditional canons for access to courts without inroads on the
effective conduct of government. |
| [77] | III. |
| [78] | This brings us to the merits of the claims before the Court.
Petitioners are organizations which, on the face of the record, are
engaged solely in charitable or insurance activities. They have been
designated "communist" by the Attorney General of the United States. This
designation imposes
no legal sanction on these organizations other than that it serves as
evidence in ridding the Government of persons reasonably suspected of
disloyalty. It would be blindness, however, not to recognize that in the
conditions of our time such designation drastically restricts the
organizations, if it does not proscribe them. Potential members,
contributors or beneficiaries of listed organizations may well be
influenced by use of the designation, for instance, as ground for
rejection of applications for commissions in the armed forces or for
permits for meetings in the auditoriums of public housing projects.
Compare Act of April 3, 1948, § 110 (c), 62 Stat. 143, 22 U. S. C. (Supp.
III) § 1508 (c). Yet, designation has been made without notice, without
disclosure of any reasons justifying it, without opportunity to meet the
undisclosed evidence or suspicion on which designation may have been
based, and without opportunity to establish affirmatively that the aims
and acts of the organization are innocent. It is claimed that thus to maim
or decapitate, on the mere say-so of the Attorney General, an organization
to all outward-seeming engaged in lawful objectives is so devoid of
fundamental fairness as to offend the Due Process Clause of the Fifth
Amendment. |
| [79] | Fairness of procedure is "due process in the primary sense."
Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 681. It
is ingrained in our national traditions and is designed to maintain them.
In a variety of situations the Court has enforced this requirement by
checking attempts of executives, legislatures, and lower courts to
disregard the deep-rooted demands of fair play enshrined in the
Constitution. "This court has never held, nor must we now be understood as
holding, that administrative officers, when executing the provisions of a
statute involving the liberty of persons, may disregard the fundamental
principles that inhere in 'due process of law' as understood at the time
of the adoption of the Constitution. One
of these principles is that no person shall be deprived of his liberty
without opportunity, at some time, to be heard . . . ." The Japanese
Immigrant Case, 189 U.S. 86, 100-101. "By 'due
process' is meant one which, following the forms of law, is appropriate to
the case, and just to the parties to be affected. It must be pursued in
the ordinary mode prescribed by the law; it must be adapted to the end to
be attained; and wherever it is necessary for the protection of the
parties, it must give them an opportunity to be heard respecting the
justice of the judgment sought." Hagar v. Reclamation District,
111 U.S. 701, 708. "Before its property can be taken
under the edict of an administrative officer the appellant is entitled to
a fair hearing upon the fundamental facts." Southern R. Co. v. Virginia, 290 U.S. 190, 199. "Whether acting through its
judiciary or through its legislature, a State may not deprive a person of
all existing remedies for the enforcement of a right, which the State has
no power to destroy, unless there is, or was, afforded to him some real
opportunity to protect it." Brinkerhoff-Faris Co. v. Hill, supra, 281 U.S. at 682. |
| [80] | The requirement of "due process" is not a fair-weather or timid
assurance. It must be respected in periods of calm and in times of
trouble; it protects aliens as well as citizens. But "due process," unlike
some legal rules, is not a technical conception with a fixed content
unrelated to time, place and circumstances. Expressing as it does in its
ultimate analysis respect enforced by law for that feeling of just
treatment which has been evolved through centuries of Anglo-American
constitutional history and civilization, "due process" cannot be
imprisoned within the treacherous limits of any formula. Representing a
profound attitude of fairness between man and man, and more particularly
between the individual and government, "due process" is compounded of
history, reason,
the past course of decisions, and stout confidence in the strength of the
democratic faith which we profess. Due process is not a mechanical
instrument. It is not a yardstick. It is a process. It is a delicate
process of adjustment inescapably involving the exercise of judgment by
those whom the Constitution entrusted with the unfolding of the
process. |
| [81] | Fully aware of the enormous powers thus given to the judiciary and
especially to its Supreme Court, those who founded this Nation put their
trust in a judiciary truly independent -- in judges not subject to the
fears or allurements of a limited tenure and by the very nature of their
function detached from passing and partisan influences. |
| [82] | It may fairly be said that, barring only occasional and temporary
lapses, this Court has not sought unduly to confine those who have the
responsibility of governing by giving the great concept of due process
doctrinaire scope. The Court has responded to the infinite variety and
perplexity of the tasks of government by recognizing that what is unfair
in one situation may be fair in another. Compare, for instance, Murray's
Lessee v. Hoboken Land & Improvement Co., 18 How. 272, with Ng Fung Ho v. White, 259 U.S. 276, and see Communications Comm'n v. WJR, 337 U.S.
265, 275. Whether the ex parte procedure to which the
petitioners were subjected duly observed "the rudiments of fair play,"
Chicago, M. & St. P. R. Co. v. Polt, 232 U.S. 165, 168, cannot, therefore, be tested by mere generalities or
sentiments abstractly appealing. The precise nature of the interest that
has been adversely affected, the manner in which this was done, the
reasons for doing it, the available alternatives to the procedure that was
followed, the protection implicit in the office of the functionary whose
conduct is challenged, the balance of hurt complained of and good
accomplished -- these are some of the considerations that must enter into
the judicial judgment. Applying
them to the immediate situation, we note that publicly designating an
organization as within the proscribed categories of the Loyalty Order does
not directly deprive anyone of liberty or property. Weight must also be
given to the fact that such designation is not made by a minor official
but by the highest law officer of the Government. Again, it is fair to
emphasize that the individual's interest is here to be weighed against a
claim of the greatest of all public interests, that of national security.
In striking the balance the relevant considerations must be fairly, which
means coolly, weighed with due regard to the fact that this Court is not
exercising a primary judgment but is sitting in judgment upon those who
also have taken the oath to observe the Constitution and who have the
responsibility for carrying on government. |
| [83] | But the significance we attach to general principles may turn the
scale when competing claims appeal for supremacy. Achievements of our
civilization as precious as they were hard won were summarized by Mr.
Justice Brandeis when he wrote that "in the development of our liberty
insistence upon procedural regularity has been a large factor." Burdeau v.
McDowell, 256 U.S. 465, 477 (dissenting). It is
noteworthy that procedural safeguards constitute the major portion of our
Bill of Rights. And so, no one now doubts that in the criminal law a
"person's right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense -- a right to his day in court --
are basic in our system of jurisprudence." In re Oliver, 333
U.S. 257, 273. "The hearing, moreover, must be a real one, not
a sham or a pretense." Palko v. Connecticut, 302 U.S. 319, 327. Nor is there doubt that notice and hearing are
prerequisite to due process in civil proceedings, e. g., Coe v. Armour
Fertilizer Works, 237 U.S. 413. Only the narrowest
exceptions, justified by history become part of the habits of our people
or by
obvious necessity, are tolerated. Ownbey v. Morgan, 256 U.S. 94; Endicott Johnson Corp. v. Encyclopedia Press, 266
U.S. 285; see Cooke v. United States, 267 U.S. 517, 536. |
| [84] | It is against this background of guiding considerations that we must
view the rather novel aspects of the situation at hand. It is not true
that the evils against which the Loyalty Order was directed are wholly
devoid of analogy in our own history. The circumstances attending the
Napoleonic conflicts, which gave rise to the Sedition Act of 1798, 1 Stat.
596, readily come to mind. But it is true that the executive action now
under scrutiny is of a sort not heretofore challenged in this Court. That
of itself does not justify the ex parte summary designation procedure. It
does make it necessary to consider its validity when judged by our whole
experience with the Due Process Clause. |
| [85] | IV. |
| [86] | The construction placed by this Court upon legislation conferring
administrative powers shows consistent respect for a requirement of fair
procedure before men are denied or deprived of rights. From a great mass
of cases, running the full gamut of control over property and liberty,
there emerges the principle that statutes should be interpreted, if
explicit language does not preclude, so as to observe due process in its
basic meaning. See, e. g., Anniston Mfg. Co. v. Davis, 301 U.S.
337; American Power Co. v. S. E. C., 329 U.S. 90, 107-108; Wong Yang Sung v. McGrath, 339 U.S. 33, 49. Fair hearings have been held
essential for rate determinations*fn10b
and, generally, to deprive persons
of property.*fn11b
An opportunity to be heard is constitutionally necessary to deport persons
even though they make no claim of citizenship, and is accorded to aliens
seeking entry in the absence of specific directions to the contrary.*fn12b
Even in the distribution by the Government of benefits that may be
withheld, the opportunity of a hearing is deemed important.*fn13b
The
high social and moral values inherent in the procedural safeguard of a
fair hearing are attested by the narrowness and rarity of the instances
when we have sustained executive action even though it did not observe the
customary standards of procedural fairness. It is in these instances that
constitutional compulsion regarding fair procedure was directly in issue.
Thus it has been held that the Constitution cannot be invoked to prevent
Congress from authorizing disbursements on the ex parte determination of
an administrative officer that prescribed conditions are met. United
States v. Babcock, 250 U.S. 328; cf. United States ex
rel. Dunlap v. Black, 128 U.S. 40. The importation of
goods is a privilege which, if Congress clearly so directs, may likewise
be conditioned on ex parte findings. Buttfield v. Stranahan, 192
U.S. 470; cf. Hilton v. Merritt, 110 U.S. 97. Only by a close division of the Court was it held that at a
time of national emergency, when war has not been closed by formal peace,
the Attorney General is not required to give a hearing before denying
hospitality to an alien deemed dangerous to public security. Ludecke v.
Watkins, 335 U.S. 160; United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537. Again, when decisions
of administrative officers in execution of legislation turn exclusively on
considerations similar to those on which the legislative body could itself
have acted summarily, notice and hearing may not be commanded by the
Constitution. Bi-Metallic Co. v. Colorado, 239 U.S. 441.*fn14b
Finally,
summary administrative procedure may be sanctioned by history or obvious
necessity. But these are so rare as to be isolated instances. Murray's
Lessee v. Hoboken Land & Improvement Co., 18 How. 272; Springer v. United States, 102 U.S. 586; Lawton v. Steele, 152 U.S.
133. |
| [87] | This Court is not alone in recognizing that the right to be heard
before being condemned to suffer grievous loss of any kind, even though it
may not involve the stigma and hardships of a criminal conviction, is a
principle basic to our society. Regard for this principle has guided
Congress and the Executive. Congress has often entrusted, as it may,
protection of interests which it has created to administrative agencies
rather than to the courts. But rarely has it authorized such agencies to
act without those essential safeguards for fair judgment which in the
course of centuries have come to be associated with due process. See
Switchmen's Union v. National Mediation Board, 320 U.S. 297; Tutun v. United States, 270 U.S. 568,
576, 577; Pennsylvania R. Co. v. Labor Board, 261 U.S. 72.*fn15b
And when Congress has
given an administrative agency discretion to determine its own procedure,
the agency has rarely chosen to dispose of the rights of individuals
without a hearing, however informal.*fn16b
The
heart of the matter is that democracy implies respect for the elementary
rights of men, however suspect or unworthy; a democratic government must
therefore practice fairness; and fairness can rarely be obtained by
secret, one-sided determination of facts decisive of rights.*fn17b |
| [88] | An opportunity to be heard may not seem vital when an issue relates
only to technical questions susceptible of
demonstrable proof on which evidence is not likely to be overlooked and
argument on the meaning and worth of conflicting and cloudy data not apt
to be helpful. But in other situations an admonition of Mr. Justice Holmes
becomes relevant. "One has to remember that when one's interest is keenly
excited evidence gathers from all sides around the magnetic point . . .
."*fn18b
It should be particularly heeded at times of agitation and anxiety, when
fear and suspicion impregnate the air we breathe. Compare Brown, The
French Revolution in English History. "The plea that evidence of guilt
must be secret is abhorrent to free men, because it provides a cloak for
the malevolent, the misinformed, the meddlesome, and the corrupt to play
the role of informer undetected and uncorrected." United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 551
(dissenting). Appearances in the dark are apt to look different in the
light of day. |
| [89] | Man being what he is cannot safely be trusted with complete immunity
from outward responsibility in depriving others of their rights. At least
such is the conviction underlying our Bill of Rights. That a conclusion
satisfies one's private conscience does not attest its reliability. The
validity and moral authority of a conclusion largely depend on the mode by
which it was reached. Secrecy is not congenial to truth-seeking and
self-righteousness gives too slender an assurance of rightness. No better
instrument has been devised for arriving at truth than to give a person in
jeopardy of serious loss notice
of the case against him and opportunity to meet it. Nor has a better way
been found for generating the feeling, so important to a popular
government, that justice has been done.*fn19b |
| [90] | V. |
| [91] | The strength and significance of these considerations --
considerations which go to the very ethos of the scheme of our society --
give a ready answer to the problem before us. That a hearing has been
thought indispensable in so many other situations, leaving the cases of
denial exceptional, does not of itself prove that it must be found
essential here. But it does place upon the Attorney General the burden of
showing weighty reason for departing in this instance from a rule so
deeply imbedded in history and in the demands of justice. Nothing in the
Loyalty Order requires him to deny organizations opportunity to present
their case. The Executive Order, defining his powers, directs only that
designation shall be made "after appropriate investigation and
determination." This surely does not preclude an administrative procedure,
however informal, which would incorporate the essentials of due process.
Nothing has been presented to the Court to indicate
that it will be impractical or prejudicial to a concrete public interest
to disclose to organizations the nature of the case against them and to
permit them to meet it if they can. Indeed, such a contention could hardly
be made inasmuch as the Loyalty Order itself requires partial disclosure
and hearing in proceedings against a Government employee who is a member
of a proscribed organization. Whether such procedure sufficiently protects
the rights of the employee is a different story. Such as it is, it affords
evidence that the wholly summary process for the organizations is
inadequate.*fn20b
And we have controlling proof that Congress did not think that the
Attorney General's procedure was indispensable for the protection of the
public interest. The McCarran Act, passed under circumstances certainly
not more serene than when the Loyalty Order was issued, grants
organizations a full administrative hearing, subject to judicial review,
before they are required to register as "Communist-action" or
"Communist-front."*fn21b |
| [92] | We are not here dealing with the grant of Government largess. We have
not before us the measured action of Congress, with the pause that is
properly engendered when the validity of legislation is assailed. The
Attorney General is certainly not immune from the historic requirements of
fairness merely because he acts, however conscientiously, in the name of
security. Nor does he obtain immunity on the ground that designation is
not an "adjudication" or a "regulation" in the conventional use of those
terms. Due process is not confined in its scope to the particular forms in
which rights have heretofore been found
to have been curtailed for want of procedural fairness. Due process is
perhaps the most majestic concept in our whole constitutional system.
While it contains the garnered wisdom of the past in assuring fundamental
justice, it is also a living principle not confined to past
instances. |
| [93] | Therefore the petitioners did set forth causes of action which the
District Court should have entertained. |
| [94] | MR. JUSTICE DOUGLAS, concurring. |
| [95] | While I join in the opinion of MR. JUSTICE BURTON, which would dispose
of the cases on procedural grounds, the Court has decided them on the
Constitution. And so I turn to that aspect of the cases. |
| [96] | The resolution of the constitutional question presents one of the
gravest issues of this generation. There is no doubt in my mind of the
need for the Chief Executive and the Congress to take strong measures
against any Fifth Column worming its way into government -- a Fifth Column
that has access to vital information and the purpose to paralyze and
confuse. The problems of security are real. So are the problems of
freedom. The paramount issue of the age is to reconcile the
two. |
| [97] | In days of great tension when feelings run high, it is a temptation to
take short-cuts by borrowing from the totalitarian techniques of our
opponents. But when we do, we set in motion a subversive influence of our
own design that destroys us from within. The present cases, together with
No. 49, Bailey v. Richardson, post, p. 918, affirmed today by an equally
divided Court, are simple illustrations of that trend. |
| [98] | I disagree with MR. JUSTICE JACKSON that an organization -- whether it
be these petitioners, the American Red Cross, the Catholic Church, the
Masonic Order, or the Boy Scouts -- has no standing to object to being
labeled "subversive" in these ex parte proceedings. The opinion of
MR. JUSTICE FRANKFURTER disposes of that argument. This is not an instance
of name calling by public officials. This is a determination of status --
a proceeding to ascertain whether the organization is or is not
"subversive." This determination has consequences that are serious to the
condemned organizations. Those consequences flow in part, of course, from
public opinion. But they also flow from actions of regulatory agencies
that are moving in the wake of the Attorney General's determination to
penalize or police these organizations.*fn1c
An organization branded as "subversive" by the Attorney General is maimed
and crippled. The injury is real, immediate, and
incalculable. |
| [99] | The requirements for fair trials under our system of government need
no elaboration. A party is entitled to know
the charge against him; he is also entitled to notice and opportunity to
be heard. Those principles were, in my opinion, violated
here. |
| [100] | The charge that these organizations are "subversive" could be clearly
defined. But how can anyone in the context of the Executive Order say what
it means? It apparently does not necessarily mean "totalitarian,"
"fascist" or "communist" because they are separately listed. Does it mean
an organization with socialist ideas? There are some who lump Socialists
and Communists together. Does it mean an organization that thinks the lot
of some peasants has been improved under Soviet auspices? Does it include
an organization that is against the action of the United Nations in Korea?
Does it embrace a group which on some issues of international policy
aligns itself with the Soviet viewpoint? Does it mean a group which has
unwittingly become the tool for Soviet propaganda? Does it mean one into
whose membership some Communists have infiltrated? Or does it describe
only an organization which under the guise of honorable activities serves
as a front for Communist activities? |
| [101] | No one can tell from the Executive Order what meaning is intended. No
one can tell from the records of the cases which one the Attorney General
applied. The charge is flexible; it will mean one thing to one officer,
another to someone else. It will be given meaning according to the
predilections of the prosecutor: "subversive" to some will be synonymous
with "radical"; "subversive" to others will be synonymous with
"communist." It can be expanded to include those who depart from the
orthodox party line -- to those whose words and actions (though completely
loyal) do not conform to the orthodox view on foreign or domestic policy.
These flexible standards, which vary with the mood or political philosophy
of the prosecutor, are weapons which can be made as sharp or as blunt as
the occasion requires. Since they are subject to
grave abuse, they have no place in our system of law. When we employ them,
we plant within our body politic the virus of the totalitarian ideology
which we oppose. |
| [102] | It is not enough to know that the men applying the standard are
honorable and devoted men. This is a government of laws, not of men. The
powers being used are the powers of government over the reputations and
fortunes of citizens. In situations far less severe or important than
these a party is told the nature of the charge against him. Thus when a
defendant is summoned before a federal court to answer to a claim for
damages or to a demand for an injunction against him, there must be a
"plain statement of the claim showing that the pleader is entitled to
relief."*fn2c
If that is necessary for even the most minor claim asserted against a
defendant, we should require no less when it comes to determinations that
may well destroy the group against whom the charge of being "subversive"
is directed.*fn3c
When the Government becomes the moving party and levels its great powers
against the citizen, it should be held to the same standards of fair
dealing as we prescribe for other legal contests. To let the Government
adopt such lesser ones as suits the convenience of its officers is to
start down the totalitarian path. |
| [103] | The trend in that direction is only emphasized by the failure to give
notice and hearing on the charges in these cases and by the procedure
adopted in Bailey v. Richardson, supra. Notice
and opportunity to be heard are fundamental to due process of law. We
would reverse these cases out of hand if they were suits of a civil nature
to establish a claim against petitioners. Notice and opportunity to be
heard are indispensable to a fair trial whether the case be criminal or
civil. See Coe v. Armour Fertilizer Works, 237 U.S. 413, 424; Palko v. Connecticut, 302 U.S. 319, 327; In re Oliver, 333 U.S. 257, 273.
The gravity of the present charges is proof enough of the need for notice
and hearing before the United States officially brands these organizations
as "subversive." No more critical governmental ruling can be made against
an organization these days. It condemns without trial. It destroys without
opportunity to be heard. The condemnation may in each case be wholly
justified. But government in this country cannot by edict condemn or place
beyond the pale. The rudiments of justice, as we know it, call for notice
and hearing -- an opportunity to appear and to rebut the
charge. |
| [104] | The system used to condemn these organizations is bad enough. The evil
is only compounded when a government employee is charged with being
disloyal. Association with or membership in an organization found to be
"subversive" weighs heavily against the accused. He is not allowed to
prove that the charge against the organization is false. That case is
closed; that line of defense is taken away. The technique is one of guilt
by association -- one of the most odious institutions of history. The fact
that the technique of guilt by association was used in the prosecutions at
Nuremberg*fn4c
does not make it congenial
to our constitutional scheme. Guilt under our system of government is
personal. When we make guilt vicarious we borrow from systems alien to
ours and ape our enemies. Those short-cuts may at times seem to serve
noble aims; but we depreciate ourselves by indulging in them. When we deny
even the most degraded person the rudiments of a fair trial, we endanger
the liberties of everyone. We set a pattern of conduct that is dangerously
expansive and is adaptable to the needs of any majority bent on
suppressing opposition or dissension. |
| [105] | It is not without significance that most of the provisions of the Bill
of Rights are procedural. It is procedure that spells much of the
difference between rule by law and rule by whim or caprice. Steadfast
adherence to strict procedural safeguards is our main assurance that there
will be equal justice under law. The case of Dorothy Bailey is an
excellent illustration of how dangerous a departure from our
constitutional standards can be. She was charged with being a Communist
and with being active in a Communist "front organization." The Review
Board stated that the case against her was based on reports, some of which
came from "informants certified to us by the Federal Bureau of
Investigation as experienced and entirely reliable." Counsel
for Dorothy Bailey asked that their names be disclosed. That was
refused. |
| [106] | Counsel for Dorothy Bailey asked if these informants had been active
in a certain union. The chairman replied, "I haven't the slightest
knowledge as to who they were or how active they have been in
anything." |
| [107] | Counsel for Dorothy Bailey asked if those statements of the informants
were under oath. The chairman answered, "I don't think so." |
| [108] | The Loyalty Board convicts on evidence which it cannot even appraise.
The critical evidence may be the word of an unknown witness who is "a
paragon of veracity, a knave, or the village idiot."*fn5c
His name, his reputation, his prejudices, his animosities, his
trustworthiness are unknown both to the judge and to the accused. The
accused has no opportunity to show that the witness lied or was prejudiced
or venal. Without knowing who her accusers are she has no way of
defending. She has nothing to offer except her own word and the character
testimony of her friends. |
| [109] | Dorothy Bailey was not, to be sure, faced with a criminal charge and
hence not technically entitled under the Sixth Amendment to be confronted
with the witnesses against her. But she was on trial for her reputation,
her job, her professional standing. A disloyalty trial is the most crucial
event in the life of a public servant. If condemned, he is branded for
life as a person unworthy of trust or confidence. To make that
condemnation without meticulous regard for the decencies of a fair trial
is abhorrent to fundamental justice. |
| [110] | I do not mean to imply that but for these irregularities the system of
loyalty trials is constitutional. I do not see how the constitutionality
of this dragnet system of loyalty trials which has been entrusted to the
administrative agencies of government can be sustained. Every government employee
must take an oath of loyalty.*fn6c
If he swears falsely, he commits perjury and can be tried in court. In
such a trial he gets the full protection of the Bill of Rights, including
trial by jury and the presumption of innocence. I am inclined to the view
that when a disloyalty charge is substituted for perjury and an
administrative board substituted for the court "the spirit and the letter
of the Bill of Rights" are offended.*fn7c |
| [111] | The problem of security is real; and the Government need not be
paralyzed in handling it. The security problem, however, relates only to
those sensitive areas where secrets are or may be available, where
critical policies are being formulated, or where sabotage can be
committed. The department heads must have leeway in handling their
personnel problems in these sensitive areas. The question is one of the
fitness or qualifications of an individual for a particular position. One
can be transferred from those areas even when there is no more than a
suspicion as to his loyalty. We meet constitutional difficulties when the
Government undertakes to punish by proclaiming the disloyalty of an
employee and making him ineligible for any government post. The British
have avoided those difficulties by applying the loyalty procedure only in
sensitive areas and in using it to test the qualifications of an employee
for a particular post,
not to condemn him for all public employment.*fn8c
When we go beyond that procedure and adopt the dragnet system now in
force, we trench upon the civil rights of our people. We condemn by
administrative edict, rather than by jury trial.*fn9c
Of course, no one has a constitutional right
to a government job. But every citizen has a right to a fair trial when
his government seeks to deprive him of the privileges of first-class
citizenship. |
| [112] | The evil of these cases is only emphasized by the procedure employed
in Dorothy Bailey's case. Together they illustrate how deprivation of our
citizens of fair trials is subversion from within. |
| [113] | MR. JUSTICE JACKSON, concurring. |
| [114] | It is unfortunate that this Court should flounder in wordy
disagreement over the validity and effect of procedures which have already
been pursued for several years. The extravagance of some of the views
expressed and the intemperance of their statement may create a suspicion
that the decision of the case does not rise above the political
controversy that engendered it. |
| [115] | MR. JUSTICE BURTON, and those for whom he speaks, would rescue the
Loyalty Order from inquiry as to its validity by spelling out an admission
by the Attorney General that it has been arbitrarily misapplied. MR.
JUSTICE BLACK would have us hold that listing by the Attorney General of
organizations alleged to be subversive is the equivalent of a bill of
attainder for treason after the fashion of those of the Stuart kings,
while MR. JUSTICE REED contends, in substance, that the designation is a
mere press release without legal consequences. |
| [116] | If the Court agreed that an accused employee could challenge the
designation, its effect would be only advisory or prima facie; but as I
point out later, the Court refuses so to limit the effect of the
designation. In view of these and other diversified opinions, none of
which has attracted sufficient adherents for a Court and none of which I
can fully accept, I shall state rather than argue my view of the
matter. |
| [117] | 1. The Loyalty Order does affect substantive legal rights. -- I agree
that mere designation as subversive deprives the
organizations themselves of no legal right or immunity. By it they are not
dissolved, subjected to any legal prosecution, punished, penalized, or
prohibited from carrying on any of their activities. Their claim of injury
is that they cannot attract audiences, enlist members, or obtain
contributions as readily as before. These, however, are sanctions applied
by public disapproval, not by law. It is quite true that the popular
censure is focused upon them by the Attorney General's characterization.
But the right of privacy does not extend to organized groups or
associations which solicit funds or memberships or to corporations
dependent upon the state for their charters.*fn1d
The right of individuals to assemble is one thing; the claim that an
organization of secret undisclosed character may conduct public drives for
funds or memberships is another. They may be free to solicit,
propagandize, and hold meetings, but they are not free from public
criticism or exposure. If the only effect of the Loyalty Order was that
suffered by the organizations, I should think their right to relief very
dubious. |
| [118] | But the real target of all this procedure is the government employee
who is a member of, or sympathetic to, one or more accused organizations.
He not only may be discharged, but disqualified from employment, upon no
other ground than such membership or sympathetic affiliation. And he
cannot attack the correctness of the Attorney General's designation in any
loyalty proceeding.*fn2d
Ordinary
dismissals from government service which violate no fixed tenure concern
only the Executive branch, and courts will not review such discretionary
action.*fn3d
However, these are not discretionary discharges but discharges pursuant to
an order having force of law. Administrative machinery is publicly set up
to comb the whole government service*fn4d
to discharge persons or to declare them ineligible for employment upon an
incontestable finding, made without hearing, that some organization is
subversive. To be deprived not only of present government employment but
of future opportunity for it certainly is no small injury when government
employment so dominates the field of opportunity. |