| [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. |
| [119] | The fact that one may not have a legal right to get or keep a
government post does not mean that he can be adjudged ineligible
illegally. Perkins v. Elg.*fn5d
.
To promulgate with force of law a conclusive finding of disloyalty,
without hearing at some stage before such finding becomes final, is a
denial of due process of law. -- On this subject, I agree with the opinion
of MR. JUSTICE FRANKFURTER. That the safeguard of a hearing would not
defeat the effectiveness of a Loyalty Program is apparently the judgment
of Congress and of State Legislatures, for, as he points out, both
congressional and state loyalty legislation recognize the
right. |
| [120] | 3. The organizations may vindicate unconstitutional deprivation of
members' rights. -- There are two stages at which administrative hearings
could protect individuals' legal rights -- one is before an organization
is designated as subversive, the other is when the individual, because of
membership, is accused of disloyalty. Either choice might be a permissible
solution of a difficult problem inherent in such an extensive program. But
an equally divided Court today, erroneously, I think, rejects the claim
that the individual has hearing rights.*fn6d
I am unable to comprehend the process by which those who think the
Attorney General's designation is no more than a press release can
foreclose attack upon it in the employees' case. Also beyond my
understanding is how a Court whose collective opinion is that the
designations are subject to judicial inquiry can at the same time say that
a discharge based at least in part on them is not. |
| [121] | By the procedures of this Loyalty Order, both groups and individuals
may be labeled disloyal and subversive. The Court grants judicial review
and relief to the group while refusing it to the individual. So far as I
recall, this is the first time this Court has held rights of individuals
subordinate and inferior to those of organized groups. I think that is an
inverted view of the law -- it is justice turned bottom-side up. I
have believed that a corporation can maintain an action to protect rights
under the Due Process or Equal Protection Clauses of the Fourteenth
Amendment, e. g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 574. The only practical judicial policy when people pool
their capital, their interests, or their activities under a name and form
that will identify collective interests, often is to permit the
association or corporation in a single case to vindicate the interests of
all. |
| [122] | This procedure is appropriate here where the Government has lumped all
the members' interests in the organization so that condemnation of the one
will reach all. The Government proceeds on the basis that each of these
associations is so identical with its members that the subversive purpose
and intents of the one may be attributed to and made conclusive upon the
other. Having adopted this procedure in the Executive Department, I think
the Government can hardly ask the Judicial Department to deny the standing
of the organizations to vindicate its members' rights. |
| [123] | Unless a hearing is provided in which the organization can present
evidence as to its character, a presumption of disloyalty is entered
against its every member-employee, and because of it, he may be branded
disloyal, discharged, and rendered ineligible for government service. I
would reverse the decisions for lack of due process in denying a hearing
at any stage. |
| [124] | MR. JUSTICE REED, with whom THE CHIEF JUSTICE and MR. JUSTICE MINTON
join, dissenting. |
| [125] | The three organizations named in the caption, together with certain
other groups and individuals, filed suits in the United States District
Court for the District of Columbia primarily to have declared
unconstitutional Executive Order No. 9835, March 21, 1947, 12 Fed. Reg.
1935, as applied against these petitioners. Acting under Part
III, § 3 of Executive Order No. 9835, note 3, infra, the Attorney General,
on November 24, 1947, transmitted the required list of organizations to
the Loyalty Review Board. This list included the three above-named
organizations. The Board promptly disseminated the information to all
departments and agencies. It was published as Appendix A to Title 5,
Administrative Personnel, CFR § 210.11 (b) (6). 13 Fed. Reg. 1471. Later,
September 17, 1948, the three organizations were designated by the
Attorney General as "communist." 13 Fed. Reg. 6135. The relief sought by
petitioners was to have the names of the organizations deleted from the
allegedly unconstitutionally created lists because of the obvious harm to
their activities by reason of their designation. |
| [126] | The list was transmitted to the Board by the Attorney General as a
part of the plan of the President, broadly set forth in Executive Order
No. 9835, to furnish maximum protection "against infiltration of disloyal
persons into the ranks of [government] employees, and equal protection
from unfounded accusations of disloyalty" for the loyal employees. 12 Fed.
Reg. 1935. Executive Order No. 9835 came after long consideration of the
problems of possible damage to the Government from disloyalty among its
employees. 92 Cong. Rec. 9601. See the Report of the President's Temporary
Commission on Employee Loyalty (appointed 1946), p. 23: |
| [127] | "The presence within the government of any disloyal or subversive
persons, or the attempt by any such persons to obtain government
employment, presents a problem of such importance that it must be dealt
with vigorously and effectively." |
| [128] | A list of subversive organizations under Executive Order No. 9300, 3
CFR, 1943 Cum. Supp., 1252, was likewise disseminated to government
agencies. 13 Fed. Reg. 1473. Great
Britain (see note 31, infra), Australia (Act of October 20, 1950), New
Zealand (Deynzer v. Campbell, [1950] N. Z. L. R. 790; 37th Rep., Public
Service Comm'n, New Zealand, 1949, p. 14; 38th Rep., Public Service
Comm'n, New Zealand, 1950, p. 12), and the Union of South Africa (Act No.
44 of 1950) have taken legislative or administrative steps to control
disloyalty among government employees. See The Report of the Royal
Commission (Canada) appointed under Order in Council, P. C. 411, February
5, 1946. The method of dealing with communism and communists adopted by
the Commonwealth of Australia was held beyond the powers of that
government. Australian Communist Party v. Commonwealth, decision of
Friday, March 9, 1951, 83 C. L. R. 1. |
| [129] | The procedure for designating these petitioners as communists may be
summarized as follows: Executive Order No. 9835, Part III, was issued by
the President as Chief Executive, "in the interest of the internal
management of the Government" and under the Civil Service Act of 1883, 22
Stat. 403, as amended, and § 9A of the Hatch Act, 5 U. S. C. (Supp. II) §
118j. The former acts give general regulatory powers over the employment
and discharge of government personnel; the latter is more specific.*fn1
These present cases do not involve the removal of any employee. The
Order required investigation of the loyalty of applicants for government
employment and similar investigation of present employees. To assure
uniformity and fairness throughout the Government in the investigation of
employees, a Loyalty Review Board was created to review loyalty cases from
any department or agency, disseminate information pertinent to employee
loyalty programs, and advise the heads thereof. Standards were provided
for employment and discharge. So far as pertinent to the objections of
petitioner to inclusion on the list of subversive and communist
organizations, they appear in note 3 and in the note below.*fn2
It was apparently to avoid the necessity of continuous reexamination by
all government departments and agencies of the characteristics of
organizations suspected of aims inimical to the Government that provision
was made in the Order for examination and designation of such
organizations by the
Attorney General. 12 Fed. Reg. 1938, Part III, § 3.*fn3
It was under this plan that the Attorney General made his
designations. |
| [130] | The designations made available for the use of the Loyalty Review
Board and the departmental or agency loyalty boards, the result of the
investigation of the Attorney General into the character of organizations
that might fall under suspicion as totalitarian, fascist, communist or
subversive. The list does not furnish a basis for any court action against
the organizations so designated. It of course might follow from discovery
of facts by the investigation that criminal or civil proceedings would be
begun to enforce an applicable criminal statute or to cancel the franchise
or some license of a listed organization. In such a proceeding, however,
the accused organization would have the usual protections of any
defendant. The list is evidence only of the character of the listed
organizations in proceedings before loyalty boards to determine whether
"reasonable" grounds exist for belief "that the employee under
consideration" is disloyal to the Government of the United States. See
note 2, supra. The names were placed on the list by the Attorney General
after investigation. If legally permissible, as carried out by the
Attorney General, there is no question but that a single investigation as
to the character of an
organization is preferable to one by each of the more than a hundred
agencies of government that are catalogued in the United States Government
Organization Manual. To require a determination as to each organization
for the administrative hearing of each employee investigated for
disloyalty would be impossible. The employee's association with a listed
organization does not, under the Order, establish, even prima facie,
reasonable grounds for belief in the employee's disloyalty.*fn4 |
| [131] | None of the complaints deny that the Attorney General made an
"investigation" of the organizations to determine whether or not they were
totalitarian, fascist, communist or subversive as required by Part III, §
3, or that he had material information concerning disloyal activities on
their part. The Council came the nearest to such an allegation in the
quoted excerpts from their complaint in note 10, but we read them as no
more than allegations of unconstitutionality because "investigation"
without notice and hearing is not "appropriate." Certainly there is no
specific allegation of the way in which the Attorney General failed to
follow the Order. We therefore assume that the designation was made after
appropriate investigation and determination.*fn5
No
objection is or could reasonably be made in the records or briefs to an
examination by the Government into the loyalty of its employees. Although
the Founders of this Republic rebelled against their established
government of England and won our freedom, the creation of our own
constitutional government endowed that new government, the United States
of America, with the right and duty to protect its existence against any
force that seeks its overthrow or changes in its structure by other than
constitutional means. Tolerant as we are of all political efforts by
argument or persuasion to change the basis of our social, economic or
political life, the line is drawn sharply and clearly at any act or
incitement to act in violation of our constitutional processes. Surely the
Government need not await an employee's conviction of a crime involving
disloyalty before separating him from public service. Governments cannot
be indifferent to manifestations of subversion. As soon as these are
significant enough reasonably to cause concern as to the likelihood of
action, the duty to protect the state compels the exertion of governmental
power. Not to move would brand a government with a dangerous weakness of
will. The determination of the time for action rests with the executive
and legislative arms. An objection to consideration of an employee's
sympathetic association with an admitted totalitarian, fascist, communist
or subversive group, as bearing upon the propriety of his retention or
employment as a government employee would have no better standing. The
Order gives conclusive indication of the type of organization that is
meant by the four word-labels.*fn6
Following them in Part III, § 3, 12 Fed. Reg. 1938, are the words, "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." Bracketed with membership in
listed organizations (Exec. Order No. 9835, Part V) as activities for
consideration in determining an employee's loyalty are those listed below.
These are the standards that define the type of organization subject to
designation.*fn7
Of course, the Order means that a communist or subversive organization is
of the same general character as one that seeks to alter our form of
government by unconstitutional means, 13 Fed. Reg. 6137, to wit by force
and violence. |
| [132] | Procedure under the Executive Order does not require "proof" in the
sense of a court proceeding that these communist organizations teach or
incite to force and violence to
obtain their objectives.*fn8
What is required by the Order is an examination and determination by the
Attorney General that these organizations are "communist." The description
"communist" is adequate for the purposes of inquiry and listing. No such
precision of definition is necessary as a criminal prosecution might
require. Cf. United States v. Chemical Foundation, 272 U.S. 1, 14. Communism is well understood to mean a group seeking to
overthrow by force and violence governments such as ours and to establish
a new government based on public ownership and direction of productive
property. Undoubtedly, there are reasonable grounds to conclude that
accepted history teaches that revolution by force and violence to
accomplish this end is a tenet of communists.*fn9
No more is necessary to justify an organization's designation as
communist. As
a basis for petitioners' attack on the list, the Refugee Committee set
forth facts in its complaint to show its charitable character. These
indicate activities and expenditures in aid of the Spanish Republicans in
flight from their homeland. The International Workers Order sets forth
facts to show that it was a duly organized fraternal benefit society under
New York law, furnishing sickness and death benefits as well as life
insurance protection to its members. It states other worthy objectives in
which it is engaged and asserts it is not an organization such as are
referred to in the Order, Part III, § 3, supra. The Council, too, sets out
its purpose to promote American-Soviet friendship by means of education
and information. It asserts: |
| [133] | "In all its activities the NATIONAL COUNCIL has sought to further the
best interests of the American people by lawful, peaceful and
constitutional means." |
| [134] | The absence of any provision in the Order or rules for notice to
suspected organizations, for hearings with privilege to the organizations
to confront witnesses, cross-examine, produce evidence and have
representation of counsel or judicial review of the conclusion reached by
the Attorney General is urged by the petitioners, as a procedure so
fundamentally unfair and restrictive of personal freedoms as to violate
the Federal Constitution, specifically the Due Process Clause and the
First Amendment. No opportunity was allowed by the Attorney General for
petitioners to offer proof of the legality of their purposes or to
disprove charges of subversive operations. This
is the real gravamen of each complaint, the basis upon which the
determination of unconstitutionality is sought.*fn10 |
| [135] | To these complaints, the Government filed motions to dismiss because
of failure to state a claim upon which relief could be granted. The
motions were granted by the District Court and the Court of Appeals
affirmed. |
| [136] | Admissions by motions to dismiss. -- It is held in MR. JUSTICE
BURTON'S opinion that the motion to dismiss should have been denied. It is
said: |
| [137] | "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." P.
137. |
| [138] | I understand MR. JUSTICE BURTON'S opinion to hold that as a motion to
strike for failure to state a cause of action admits all well-pleaded
facts, respondents' motion admits such allegations in the complaint as
that quoted in the third preceding paragraph from the Council's complaint
and the assertions that petitioners are not "totalitarian, fascist,
communist or subversive." Such statements, however, appear to me to be
only conclusions of law as to the effect of facts stated, or empty
assertions or conclusions without well-pleaded facts to sustain them.*fn11
Where the issue is the permissibility of designation without notice or
hearing, a motion to strike does not admit an allegation of "arbitrary"
action or that "all its activities [are] . . . constitutional." These
complaints may not be decided upon any such posture in pleading.
Petitioners' charge, that their "designation" violates due process and the
First Amendment, remains the issue. |
| [139] | Standing to sue. -- A question is raised by the United States as to
petitioners' standing to maintain these actions. It seems unnecessary to
analyze that problem in this dissent. If there should be a determination
that petitioners' constitutional rights are violated by petitioners'
designation under Part III, § 3, of the Order, it would seem they would
have standing to seek redress. The "standing" turns on the existence of
the federal right.*fn12
Does petitioners' designation abridge their rights under the First
Amendment? Do petitioners have a constitutional right under the Due
Process Clause of the Fifth Amendment
to require a hearing before the Attorney General designates them as a
subversive or communist organization for the purposes of Executive Order
No. 9835? |
| [140] | First Amendment. -- Petitioners assert that their inclusion on the
disloyal list has abridged their freedom of speech, since listeners or
readers are more difficult to obtain for their speeches and publications,
and parties interested in their work are more hesitant to become
associates. The Refugee Committee brief adds that "thought" is also
abridged. A concurring opinion accepts these arguments to the point of
concluding that the publication of the lists "with or without a hearing"
violates the First Amendment. |
| [141] | This Court, throughout the years, has maintained the protection of the
First Amendment as a major safeguard to the maintenance of a free
republic. This Nation has never suffered from an enforced conformity of
expression or a limitation of criticism. But neither are we compelled to
endure espionage and sedition. Wide as are the freedoms of the First
Amendment, this Court has never hesitated to deny the individual's right
to use the privileges for the overturn of law and order. Reasonable
restraints for the fair protection of the Government against incitement to
sedition cannot properly be said to be "undemocratic" or contrary to the
guarantees of free speech. Otherwise the guarantee of civil rights would
be a mockery.*fn13
Even when this Court spoke out most strongly against previous restraints,
it was careful to recognize that "the security of the community life may
be protected against incitements to acts of violence and the overthrow by
force of orderly government." Near v. Minnesota, 283 U.S. 697, 716. Recognizing
that the designation, rightly or wrongly, of petitioner organizations as
communist impairs their ability to carry forward successfully whatever
legitimate objects they seek to accomplish, we do not accept their
argument that such interference is an abridgment of First Amendment
guarantees.*fn14
They are in the position of every proponent of unpopular views. Heresy
induces strong expressions of opposition. So long as petitioners are
permitted to voice their political ideas, free from suggestions for the
opportune use of force to accomplish their social and economic aims, it is
hard to understand how any advocate of freedom of expression can assert
that their right has been unconstitutionally abridged. As nothing in the
orders or regulations concerning this list limits the teachings or support
of these organizations, we do not believe that any right of theirs under
the First Amendment is abridged by publication of the list. |
| [142] | Due Process. -- This point brings us face to face with the argument
that whether the Attorney General was right or wrong in listing these
organizations, his designation cannot stand because a final decision of
ineligibility for employment without notice and hearing rises to the
importance of a constitutional defect. If standards for definition of
organizations includable on the list are necessary, the order furnishes
adequate tests as appears from the text preceding notes 2 and 7 above and
the standards set out in those notes. Compare cases cited, note 6,
supra. |
| [143] | Does due process require notice and hearing for the Department of
Justice investigation under Executive Order No. 9835, Part III, § 3, note
3, supra, preliminary to listing? As a standard for due process one cannot
do better than to accept as a measure that no one may be deprived of
liberty or property without such reasonable notice
and hearing as fairness requires. This is my understanding of the meaning
of the opinions upon due process cited in the concurring opinions. We are
not here concerned with the rightfulness of the extent of participation in
the investigations that might be claimed by petitioners.*fn15
They were given no chance to take part. Their claim is that the listing
resulted in a deprivation of liberty or property contrary to the procedure
required by the Fifth Amendment.*fn16
The
contention can be answered summarily by saying that there is no
deprivation of any property or liberty of any listed organization by the
Attorney General's designation. It may be assumed that the listing is
hurtful to their prestige, reputation and earning power. It may be such an
injury as would entitle organizations to damages in a tort action against
persons not protected by privilege. See Spalding v. Vilas, 161
U.S. 483; Glass v. Ickes, 73 App. D.C. 3, 117 F.2d 273. This
designation, however, does not prohibit any business of the organizations,
subject them to any punishment or deprive them of liberty of speech or
other freedom. The cases relied upon in the briefs and opinions of the
majority as requiring notice and hearing before valid action can be taken
by administrative officers are where complainant will lose some property
or enforceable civil or statutory right by the action taken or proposed.*fn17
"[A] mere abstract declaration" by an administrator regarding the
character of an organization, without the effect of forbidding or
compelling conduct on the part of complainant, ought not to be subject to
judicial interference. Rochester Telephone Corp. v. United States, 307 U.S. 125, 129, 143. That is, it does not require
notice and hearing. |
| [144] | These petitioners are not ordered to do anything and are not punished
for anything. Their position may be analogized to that of persons under
grand jury investigation. Such persons have no right to notice by and
hearing before a grand jury; only a right to defend the charge at trial.*fn18
Property may be taken for government use without notice or hearing by a
mere declaration of taking by the authorized official. No court has
doubted the constitutionality of such summary action under the due process
clause when just compensation must be paid ultimately.*fn19
Persons may be barred from certain positions merely because of their
associations.*fn20 |
| [145] | To allow petitioners entry into the investigation would amount to
interference with the Executive's discretion, contrary to the ordinary
operations of Government. Long ago Mr. Chief Justice Taney in Decatur v.
Paulding, 14 Pet. 497, stated the rule and the reason against judicial
interference with executive discretion: |
| [146] | "The head of an executive department of the government, in the
administration of the various and important concerns of his office, is
continually required to exercise judgment and discretion. . .
. |
| [147] | "If a suit should come before this Court, which involved the
construction of any of these laws, the Court certainly would not be bound
to adopt the construction given by the head of a department. And
if they supposed his decision to be wrong, they would, of course, so
pronounce their judgment. But their judgment upon the construction of a
law must be given in a case in which they have jurisdiction, and in which
it is their duty to interpret the act of Congress, in order to ascertain
the rights of the parties in the cause before them." P. 515. |
| [148] | "The interference of the Courts with the performance of the ordinary
duties of the executive departments of the government, would be productive
of nothing but mischief; and we are quite satisfied that such a power was
never intended to be given to them." P. 516. |
| [149] | That rule still stands. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 704.*fn21
This Court applied it recently in Chicago & Southern Air Lines, Inc.
v. Waterman S. S. Corp., 333 U.S. 103, as to foreign
policy decisions of the President concerning overseas airline licenses.*fn22
In Louisiana v. McAdoo, 234 U.S. 627, the State
sought to enjoin
an order of the Secretary of the Treasury fixing the customs rate on sugar
as "arbitrary, illegal and unjust" and irreparably injurious to the State.
The Court refused the State permission to file the suit as in reality a
suit against the United States, saying an officer may be compelled to act
ministerially. |
| [150] | "But if the matter in respect to which the action of the official is
sought, is one in which the exercise of either judgment or discretion is
required, the courts will refuse to substitute their judgment or
discretion for that of the official entrusted by law with its execution.
Interference in such a case would be to interfere with the ordinary
functions of government." P. 633. |
| [151] | It seems clearly erroneous to suggest that "listing" determines any
"guilt" or "punishment" for the organizations or has any finality in
determining the loyalty of members. The President and the Attorney General
pointed this out.*fn23
It is written into the Code of Federal Regulations, CFR
§ 210.11 (b) (6), note 4, supra. The standard for discharge emphasizes the
meaning. See notes 2 and 7, supra. |
| [152] | Before stating our conclusions a comment should be made as to the
introduction by the concurring opinions of a discussion of the rights of a
member of these organizations. It is suggested by one concurrence that as
the "Government proceeds on the basis that each of these associations is
so identical with its members that the subversive purpose and intents of
the one may be attributed to and made conclusive upon the other," the
organization must be permitted to vindicate the members' rights or due
process is not satisfied. Another concurrence states "an employee may lose
his job because of the Attorney General's secret and ex parte action."
Both concurrences indicate, it seems to me, that as a member of petitioner
organizations is denied due process by the effect of listing the
organizations, the organization is likewise denied due process in the
listing. Without accepting the logic of the concurrences, and waiving
inquiry as to the standing of a corporation or unincorporated association
to defend the rights of a member to employment, we think the suggestions
as to lack of due process are based on an erroneous premise. Employees
generally, under executive departments and agencies, whether or not
members of listed organizations, without special statutory protection such
as permanent employees under the competitive and classified civil service
laws and regulations or preference eligibles under the Veterans'
Preference Act of 1944, 58 Stat. 387, 5 U. S. C. § 851, 5 CFR, Parts 9 and
22, and Part 2, § 2.104, are subject to summary removal by the appointing
officers.*fn24
Listing of these organizations does
not conclude the members' rights to hold government employment. It is only
one piece of evidence for consideration.*fn25
That mere membership in listed organizations does not normally bring about
findings of disloyalty is graphically shown by a report of proceedings
under the loyalty program.*fn26
The procedure for removal of employees suspected of disloyalty follows the
routine prescribed for the removal of employees on other grounds for
dismissal. Employees under investigation have never had the right to
confrontation, cross-examination and quasi-judicial hearing. 37 Stat. 555,
as amended, 5 U. S. C. § 652. Normal
removal procedure functions for permanent employees about in this way. The
employing agency may remove for the efficiency of the service, including
grounds for disqualification of an applicant. 5 CFR, 1947 Supp., §
9.101.*fn27
Removal requires notice and charges.*fn28
Before the loyalty review boards similar procedure is followed.*fn29
Where initial consideration indicates a
removal of an incumbent for disloyalty may be warranted, notice is
provided for.*fn30
Thus, there is scrupulous care taken to see that an employee who has
fallen under suspicion has notice of the charges and an opportunity to
explain his actions. The employee has no opportunity to disprove the
characterization placed upon the listed organization by the Attorney
General for the practical reasons stated following note 2, supra. The
employee does have every opportunity to explain his association with that
organization. The Constitution requires for the employee no more than this
fair opportunity to explain his questioned activities. Such procedure is
quite similar to that followed in Great Britain
in the removal or transfer of civil servants from positions "vital to the
security of the State." The Prime Minister assumed the authority to
designate membership in the Communist Party or "other forms of continuing
association" therewith as sufficient to bar employment in sensitive
areas.*fn31 |
| [153] | Conclusion. -- In our judgment organizations are not affected by these
designations in such a manner as to permit
a court's interference or to deny due process. That conclusion holds good
also when we assume the organizations may present their members'
grievances over discharge as a part of the organization's case. The
administrative hearing granted an employee facing discharge is a statutory
modification of the employing agent's former authority to discharge
summarily. Such act of grace does not create a constitutional right. Due
process is called for in determinations affecting rights. |
| [154] | What petitioners seek is a ruling that the Government cannot designate
organizations as communist for the purpose of furthering investigations
into employees' loyalty by the employing agencies without giving those
organizations an opportunity to examine and meet the information on which
the list is based. One can understand that position. There is a natural
hesitation against any action that may damage any person or organization
through an error that notice and hearing might correct. Such attitude of
tolerance is reflected in § 13 of the Internal Security Act of 1950, 64
Stat. 987, 998. A statutory requirement for notice and administrative
hearing, however, does
not mean the existence of a constitutional requirement.*fn32 |
| [155] | The Executive has authority to gather information concerning the
loyalty of its employees as congressional committees have power to
investigate matters of legislative interest. A public statement of
legislative conclusions on information that later may be found erroneous
may damage those investigated but it is not a civil judgment or a criminal
conviction. Due process does not apply. Questions of propriety of
political action are not for the courts. Information that an employee
associates with or belongs to organizations considered communistic may be
deemed by the Executive a sound reason for making inquiries into the
desirability of the employment of that employee. That is not "guilt by
association." It is a warning to investigate the conduct of the employee
and his opportunity for harm. |
| [156] | While we must be on guard against being moved to conclusions on the
constitutionality of action, legislative or executive, by the
circumstances of the moment, undoubtedly varying conditions call for
differences in procedure. Due process requires appraisal in the light of
conditions confronting the executive during the continuation of the
challenged action.*fn33
Power lies in the executive to guard the Nation from espionage, subversion
and sedition by examining into the loyalty of employees, and due process
in such investigation depends upon the particular exercise of that power
in particular conditions.*fn34
In investigations to determine the purposes of suspected organizations,
the Government should be free to proceed without notice or hearing.
Petitioners will have protection when
steps are taken to punish or enjoin their activities. Where notice and
such administrative hearing as the Code of Federal Regulations prescribes
precede punishment, injunction or discharge, petitioners and their
members' rights to due process are protected. |
| [157] | The judgment of the Court of Appeals should be affirmed. |
| [158] | FOOTNOTES |
| [159] | * Together with No. 7, National Council of American-Soviet Friendship,
Inc. et al. v. McGrath, Attorney General, et al.; and No.
71, International Workers Order, Inc. et al. v. McGrath,
Attorney General, et al., also on certiorari to the same
court. |
|
| |
| Opinion Footnotes | |
|
| |
| [160] | *fn1
E. g., § 9A of the Hatch Political Activity Act, August 2, 1939, 53 Stat.
1148, 5 U. S. C. (1946 ed., Supp. III) § 118j; Smith Act, June 28, 1940,
54 Stat. 670, now 18 U. S. C. (1946 ed., Supp. III) §§ 2385, 2387; Voorhis
Anti-Propaganda Act, October 17, 1940, 54 Stat. 1201, now 18 U. S. C.
(1946 ed., Supp. III) § 2386; many appropriation act riders barring the
use of funds to pay "any person who advocates, or who is a member of an
organization that advocates, the overthrow of the Government of the United
States by force or violence: . . ." such as that at 55 Stat. 42; Exec.
Order No. 9300, "Establishing the Interdepartmental Committee to Consider
Cases of Subversive Activity on the Part of Federal Employees," February
5, 1943, 3 CFR, 1943 Cum. Supp., p. 1252, 8 Fed. Reg. 1701; and Exec.
Order No. 9806, "Establishing the President's Temporary Commission on
Employee Loyalty," November 25, 1946, 3 CFR, 1946 Supp., p. 183, 11 Fed.
Reg. 13863. See also, United States v. Lovett, 328 U.S. 303, 308-313. A later expression of congressional policy
appears in Title I (the Subversive Activities Control Act of 1950) of the
Internal Security Act of 1950 (the McCarran Act) of September 23, 1950, 64
Stat. 987. This requires any "Communist-action organization" or
"Communist-front organization" to register with the Attorney General (§ 7)
and provides for hearings before a newly created "Subversive Activities
Control Board" (§§ 12, 13). |
| [161] | *fn2
"PART V -- STANDARDS "1. The standard for the refusal of employment or
the removal from employment in an executive department or agency on
grounds relating to loyalty shall be that, on all the evidence, reasonable
grounds exist for belief that the person involved is disloyal to the
Government of the United States. "2. Activities and associations of an
applicant or employee which may be considered in connection with the
determination of disloyalty may include one or more of the following: . .
. . "f. Membership in, affiliation with or sympathetic association with
any foreign or domestic organization, association, movement, group or
combination of persons, designated by the Attorney General 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 other persons 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." 3 CFR, 1947 Supp., p. 132, 12 Fed. Reg.
1938. |
| [162] | *fn3
As published in the Federal Register, March 20, 1948, the list includes
two groups. The first group contains none of the present complainants. The
Attorney General explains that that group "is reported as having been
previously named as subversive by the Department of Justice and as having
been previously disseminated among the Government agencies for use in
connection with consideration of employee loyalty under Executive Order
No. 9300, issued February 5, 1943 . . . ." 13 Fed. Reg. 1473. The second
group includes each of the complaining organizations. The Attorney General
lists this group, with the first, under the general heading "Appendix A --
List of Organizations Designated by the Attorney General Pursuant to
Executive Order No. 9835." 5 CFR, 1949, c. II, Pt. 210, pp. 199-201, 13
Fed. Reg. 1471, 1473. He then places the second group under the following
subheading: "Under Part III, section 3, of Executive Order No. 9835, the
following additional organizations are designated: . . . ." Id., at 201,
13 Fed. Reg. 1473. |
| [163] | *fn4
13 Fed. Reg. 6137-6138. This classification was disseminated to all
departments and agencies September 21, 1948, and the classified list was
published October 21, 1948, as an amendment to 5 CFR, 1949, c. II, Pt.
210, pp. 200-202, 203-205. |
| [164] | *fn5
The six classifications were: "Totalitarian," "Fascist," "Communist,"
"Subversive," "Organizations Which Have 'Adopted a Policy of Advocating or
Approving the Commission of Acts of Force and Violence to Deny Others
Their Rights Under the Constitution of the United States,'" and
"Organizations Which 'Seek to Alter the Form of Government of the United
States by Unconstitutional Means.'" 5 CFR, 1949, c. II, Pt. 210, pp.
203-205, 13 Fed. Reg. 6137-6138.
The Attorney General also explained that -- "Applying the elementary
rule of statutory construction, each of these classifications must be
taken to be independent and mutually exclusive of the others. It may well
be that a designated organization, by reason of origin, leadership,
control, purposes, policies or activities, alone or in combination, may
fall within more than one of the specified classifications. In such cases
a reasonable interpretation of the Executive order would seem to require
that designation be predicated upon its dominant characteristics rather
than extended to include all other classifications possible on the basis
of what may be subordinate attributes of the group. In classifying the
designated organizations the Attorney General has been guided by this
policy. Accordingly, it should not be assumed that an organization's
dominant characteristic is its only characteristic." Id., at 203, 13 Fed.
Reg. 6137. |
| [165] | *fn6
The complaint adds that --
"Before the end of the war in Europe, this relief consisted of: (1) the
release and assistance of those of the aforesaid refugees who were in
concentration camps in Vichy France, North Africa and other countries; (2)
transportation and asylum for those of the aforesaid refugees in flight;
(3) direct relief and aid, to those of the aforesaid refugees requiring
help, through the Red Cross and other international agencies. At the
present time, the Joint Anti-Fascist Refugee Committee relief work is
principally devoted to aiding those Spanish Republican refugees, and other
anti-fascist refugees who fought against Franco, located in France and
Mexico." |
| [166] | *fn7
Executive Order No. 9835 purports to rest, in part, upon the authority of
§ 9A of the Hatch Act. 3 CFR, 1947 Supp., p. 129, 12 Fed. Reg.
1935. |
| [167] | *fn8
In this case, unlike the others, the complainant asked that a three-judge
District Court be convened, pursuant to 28 U. S. C. (1946 ed.) § 380a, now
part of 28 U. S. C. (1946 ed., Supp. III) §§ 2281-2284. The District
Court, however, dismissed the complaint without convening such a
court. |
| [168] | *fn9
The complaint also alleges in Part IV:
"8. The purpose, objectives and activities of the Order are in no sense
subversive. The Order is not an organization within the meaning of Part
III, section 3 of Executive Order No. 9835, and it has not adopted a
policy of advocating or approving the commission of acts of force or
violence, or to deny other persons the rights under the Constitution or as
seeking to alter the form of government by unconstitutional means, but on
the contrary, the Order is opposed to the commission of acts of force or
violence, fights against the denial of rights to any person, and is
opposed to the altering of our form of government by any illegal or
unconstitutional means. The Order is dedicated to the democratic ideals
and traditions of the United States and the principles of freedom and
equality embodied in the Constitution." |
| [169] | *fn10
The complaint attacks the constitutionality of § 9A of the Hatch Act but
does not ask for the convening of a three-judge District Court.
In this case, A. L. Drayton, as a member of the order and a civil
employee of the United States, sought permission from the District Court
to intervene under Rule 24 (b) of the Federal Rules of Civil Procedure and
to have added as defendants three members of the Loyalty Review Board of
the Post Office Department. His motion was denied and his appeal from that
denial dismissed. The respondents now advise us that, in a separate
proceeding, he appealed to the Loyalty Review Board from a decision
adverse to his loyalty, with the result that such decision has been
reversed and that he has returned to duty. While he has not withdrawn his
appeal from the denial of his motion to intervene, we find no reason to
review the discretion exercised by the District Court in denying that
motion. Allen Calculators v. National Cash Register Co., 322
U.S. 137; see 4 Moore's Federal Practice (2d ed. 1950)
62-64. |
| [170] | *fn11
The designation of these organizations was not preceded by any
administrative hearing. The organizations received no notice that they
were to be listed, had no opportunity to present evidence on their own
behalf and were not informed of the evidence on which the designations
rest. See Chin Yow v. United States, 208 U.S. 8.
We have noted the following recitals made by the Attorney General in
describing his standard procedure in the preparation of his lists: "After
the issuance of Executive Order No. 9835 by the President, the Department
of Justice compiled all available data with respect to the type of
organization to be dealt with under that order. The investigative reports
of the Federal Bureau of Investigation concerning such organizations were
correlated. Memoranda on each such organization were prepared by attorneys
of the Department. The list of organizations contained herein has been
certified to the Board by the Attorney General on the basis of
recommendations of attorneys of the Department as reviewed by the
Solicitor General, the Assistant Attorneys General, and the Assistant
Solicitor General, and subsequent careful study of all by the Attorney
General." 5 CFR, 1949, c. II, Pt. 210, pp. 199-200, 13 Fed. Reg. 1471.
These recitals, however, relate to the mechanics used rather than to the
appropriateness of the determination or the justification for the
respective designations. They fall short of disclosing that there has been
such an administrative hearing as would offset the admissions of the
specific allegations of the complaints which are inherent in the
respondents' motions to dismiss. See Fed. Rules Civ. Proc., 12 (b) and 56
(c), and Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 401-402. We have treated the designation of an
organization by the Attorney General in his list as including his
furnishing of that list to the Loyalty Review Board with knowledge of that
Board's obligation to disseminate it to all departments and agencies of
the Government. |
| [171] | *fn12
As an illustration of the meaning of § 559, the Restatement suggests:
"2. A writes in a letter to B that C is a member of the Ku Klux Klan. B
lives in a community in which a substantial number of the citizens regard
this organization as a discreditable one. A has defamed C." See also,
Spanel v. Pegler, 160 F.2d 619 (C. A. 7th Cir.);
Wright v. Farm Journal, 158 F.2d 976 (C. A. 2d Cir.);
Grant v. Reader's Digest Assn., 151 F.2d 733 (C. A.
2d Cir.); Mencher v. Chesley, 297 N. Y. 94, 75 N. E. 2d 257; Prosser,
Handbook of the Law of Torts, § 91; 171 A. L. R. 709-710,
Note. |
| [172] | *fn13
We do not reach either the validity of the Employees Loyalty Program or
the effect of the respondents' acts in furnishing and disseminating a
comparable list in any instance where such acts are within the authority
purportedly granted by the Executive Order. Cf. Carter v. Carter Coal Co.,
298 U.S. 238, 289-292; United States v. Butler, 297 U.S. 1, 68-78; Linder v. United States, 268 U.S. 5, 17; M'Culloch v. Maryland, 4
Wheat. 316, 423. |
| [173] | *fn14
Rule 17 (b) of the Federal Rules of Civil Procedure gives unincorporated
associations the right to sue in their own names for the enforcement of
rights existing under the Constitution or laws of the United States. And
see Restatement, Torts, § 561 (2) and Comment b thereon. See also, N. Y.
Society for Suppression of Vice v. McFadden Publications, 260 N. Y. 167,
183 N. E. 284; cf. Pullman Co. v. Local Union No. 2928, 152 F.2d
493 (C. A. 7th Cir.). |
| [174] | *fn15
Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U.S. 56; Shields v. Utah Idaho Central R. Co., 305 U.S.
177; Philadelphia Co. v. Stimson, 223 U.S. 605. |
| [175] | *fn16
United States v. Los Angeles & S. L. R. Co., 273 U.S. 299, 309-310, does not prescribe a contrary course. In that
case we held that the Interstate Commerce Commission order fixing a rate
base could not be attacked by a bill in equity when the base could be
challenged in subsequent proceedings fixing the rate. No comparable
alternative relief is available here. |
|
| |
| Concurrence Footnotes | |
|
| |
| [176] | *fn1
In November 1794, there was introduced in Congress a resolution of public
disapproval of certain "self-created Democratic societies" thought to be
responsible for stirring up the people to insurrection. Madison opposed
the resolution, apparently believing that if it were enacted it would be a
bill of attainder. His views in this regard are reported as follows: "It
is in vain to say that this indiscriminate censure is no punishment. If it
falls on classes, or individuals, it will be a severe punishment. . . . Is
not this proposition, if voted, a vote of attainder?" 4 Annals of Cong.
934 (1794). |
| [177] | *fn2
But compare Madison in Federalist Paper No. 42: "As treason may be
committed against the United States, the authority of the United States
ought to be enabled to punish it. But as new-fangled and artificial
treasons have been the great engines by which violent factions, the
natural offspring of free governments, have usually wreaked their
alternate malignity on each other, the Convention have, with great
judgment, opposed a barrier to this peculiar danger, by inserting a
Constitutional definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing it, from
extending the consequences of guilt beyond the person of its
author." |
| [178] | *fn3
One purpose of the Attorney General's blacklist under Executive Order 9835
is for use as evidence against government employees tried for disloyalty
before loyalty boards acting under the same Executive Order. Proof of
membership in a blacklisted organization, or of association with its
members, can weigh heavily against a government employee's loyalty. Thus
an employee may lose his job because of the Attorney General's secret and
ex parte action. This is well illustrated in the case of Bailey v.
Richardson, 341 U.S. 918, decided today by an equally
divided Court. The Loyalty Board's finding against Miss Bailey appears to
have rested in part on her supposed association with such organizations
and in part on secret unsworn hearsay statements communicated to the Board
by anonymous informers. Judge Edgerton's dissenting opinion demonstrates
how the entire loyalty program grossly deprives government employees of
the benefits of constitutional safeguards. Bailey v. Richardson, 86 U. S.
App. D.C. 248, 182 F.2d 46, 66. |
| [179] | *fn4
The Appendix is an illustration of persecution of Protestants by
Catholics. For instances of persecution of Catholics by Protestants, see
my dissenting opinion in American Communications Assn. v. Douds, 339 U.S. 382, 445, particularly notes 3, 4 and 7.
1b The decisions are collected in the dissenting opinion in Larson v.
Domestic & Foreign Corp., 337 U.S. 682, 705. 2b A
statute may of course confer standing even in this situation. Federal
Communications Comm'n v. Sanders Radio Station, 309 U.S. 470; Columbia System v. United States, 316 U.S. 407; cf. Youngstown Co. v. United States, 295 U.S.
476; Stark v. Wickard, 321 U.S. 288. 3b
The Davis & Farnum case held that a subcontractor did not have
standing to enjoin a municipal ordinance which prohibited a construction
project in violation of a right of the owner of the land on which it was
to be built. The Court held that the petitioner had no legal interest in
the controversy, since his interest was only "indirect." 4b Government
action is "final" in the sense here involved when at no future time will
its impact on the petitioner become more conclusive, definite, or
substantial. "Finality" is also employed in a different sense with which
we are not here concerned, in reference to judicial action not subject to
subsequent revisory executive or legislative action. Cf. United States v.
Ferreira, 13 How. 40. |
| [180] | *fn5b
The Court expressed the decision in terms of the nonlegislative character
of the specification. But since the validity of the specification could be
determined in an action for injunction or mandamus against the local
officers, the decision does not establish that final administrative action
is immune from review because it is not legislative in form. |
| [181] | *fn6b
See also decisions treating as "justiciable" bills to enjoin regulations
which create duties immediately enforceable by imposition of penalties.
Assigned Car Cases, 274 U.S. 564; United States v.
Baltimore & O. R. Co., 293 U.S.
454. |
| [182] | *fn7b
In the Los Angeles case the Court thus supported its conclusion that the
bill was not justiciable under general equity powers: "The investigation
was undertaken in aid of the legislative purpose of regulation. In
conducting the investigation, and in making the report, the Commission
performed a service specifically delegated and prescribed by Congress. Its
conclusions, if erroneous in law, may be disregarded. But neither its
utterances, nor its processes of reasoning, as distinguished from its
acts, are a subject for injunction." 273 U.S. at 314-315. Pennsylvania R. Co. v. Labor Board, 261 U.S.
72, was a bill to enjoin the Railroad Labor Board from
publishing that the petitioner had violated its decision. Decisions of the
Board were not legally enforceable; and the Court therefore concluded that
they violated "no legal or equitable right of the complaining company." 261 U.S. at 85. The Court considered at length,
however, the company's argument that the Board had been given no
jurisdiction to decide the particular issue involved. That it found it
necessary to decide this issue against the company on the merits indicates
that it thought a stronger case for standing would have been presented had
the decision been beyond the Board's authority. In Ex parte Williams, 277 U.S. at 271, there is a suggestion that a
litigant may have standing to enjoin a tax assessment when the challenge
is to the validity of the statute authorizing the assessment, although
there would be no standing to challenge the assessment on the ground that
it denied equal protection of the laws. |
| [183] | *fn8b
Compare the decisions which hold that certain executive officers are not
liable in suits for damages for erroneous or even malicious conduct in
office, so long as they are acting within the scope of the authority given
them. Spalding v. Vilas, 161 U.S. 483; Gregoire v.
Biddle, 177 F.2d 579. |
| [184] | *fn9b
A Denver affiliate of the National Council, joined as petitioner in No. 7,
has standing identical with its parent. The individual petitioners in that
suit, however, have as officers of the Council an interest which is too
remote to justify finding the issues justiciable as to them. |
| [185] | *fn10b
The reasonableness of rates has of course been held in part a question for
the courts. Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287; cf. Chicago, M. & St. P. R. Co. v. Minnesota, 134 U.S. 418. But to the extent that finality is
accorded to the determination of an administrative agency, the Court has
exacted a high standard of procedural fairness. Ohio Bell Tel. Co. v.
Commission, 301 U.S. 292, 304; see I. C. C. v.
Louisville & N. R. Co., 227 U.S. 88; United
States v. Abilene & S. R. Co., 265 U.S. 274; West
Ohio Gas Co. v. Commission (No. 1), 294 U.S. 63;
Railroad Comm'n v. Pacific Gas Co., 302 U.S. 388;
Morgan v. United States, 304 U.S. 1; cf. United
States v. Illinois Central R. Co., 291 U.S.
457. |
| [186] | *fn11b
In Southern R. Co. v. Virginia, 290 U.S. 190, the
Court declared unconstitutional a state officer's ex parte order that a
railroad install an overhead crossing. Compare Monongahela Bridge Co. v.
United States, 216 U.S. 177, in which a comparable
order of the Secretary of War, entered after hearing, was upheld. In
decisions involving local taxation for improvements, the Court has
required that owners be given a hearing on valuation as well as on the
question whether their property has been benefited whenever that
determination has not been legislatively made. See, e. g., Embree v.
Kansas City Road Dist., 240 U.S. 242; cf. Anniston
Mfg. Co. v. Davis, 301 U.S. 337. And although an
individual's interest has been created by an ex parte decision, it may not
be destroyed "without that character of notice and opportunity to be heard
essential to due process of law." United States ex rel. Turner v. Fisher, 222 U.S. 204, 208; Garfield v. Goldsby, 211
U.S. 249. See also Ex parte Robinson, 19 Wall. 505. |
| [187] | *fn12b
The Japanese Immigrant Case, 189 U.S. 86; see Kwock
Jan Fat v. White, 253 U.S. 454; Wong Yang Sung v.
McGrath, 339 U.S. 33, 49; cf. United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537. In Lloyd Sabaudo
Societa v. Elting, 287 U.S. 329, the Court held that
a steamship company required to pay a fine to obtain port clearance for a
ship which had brought a diseased alien to this country was entitled to
determination of the facts by fair procedure. The Court disapproved in
part Oceanic Nav. Co. v. Stranahan, 214 U.S.
320. |
| [188] | *fn13b
In Dismuke v. United States, 297 U.S. 167, 172, the
Court said that "in the absence of compelling language, resort to the
courts to assert a right which the statute creates will be deemed to be
curtailed only so far as authority to decide is given to the
administrative officer. . . . If he is authorized to determine questions
of fact his decision must be accepted unless he exceeds his authority by
making a determination which is arbitrary or capricious or unsupported by
evidence, . . . or by failing to follow a procedure which satisfies
elementary standards of fairness and reasonableness essential to the due
conduct of the proceeding which Congress has authorized . . .
." |
| [189] | *fn14b
Thus, no hearing need be granted on the question whether property is
needed for a public use. Rindge Co. v. Los Angeles, 262 U.S.
700. Cf. Martin v. Mott, 12 Wheat. 19;
United States v. Bush & Co., 310 U.S.
371. |
| [190] | *fn15b
Cf. Norwegian Nitrogen Co. v. United States, 288 U.S. 294. In recent customs legislation Congress has required a
hearing on objections to appraisement. 38 Stat. 187, as amended, 19 U. S.
C. § 1501; see Freund, Administrative Powers over Persons and Property,
163. In numberless other situations Congress has required the essentials
of a hearing. Among those that have come before this Court are removal
orders of the Federal Reserve Board, Board of Governors v. Agnew, 329 U.S. 441; determinations under the Hatch Act,
Oklahoma v. Civil Service Comm'n, 330 U.S. 127;
induction orders under the draft law, Estep v. United States,
327 U.S. 114; minimum price orders of the Secretary
of Agriculture, Stark v. Wickard, 321 U.S. 288; price
control, Yakus v. United States, 321 U.S. 414;
minimum wage determinations, Opp Cotton Mills v. Administrator,
312 U.S. 126; labor relations regulation, Labor Board
v. Mackay Radio Co., 304 U.S. 333; Labor Board v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 47;
Shields v. Utah Idaho R. Co., 305 U.S. 177; Inland
Empire Council v. Millis, 325 U.S. 697. |
| [191] | *fn16b
In 1941 the Attorney General's Committee on Administrative Procedure
reported that it "found in its investigation of the administrative process
few instances of indifference on the part of the agencies to the basic
values which underlie a fair hearing." These values it defined as follows:
"Before adverse action is to be taken by an agency, whether it be denying
privileges to an applicant or bounties to a claimant, before a
cease-and-desist order is issued or privileges or bounties are permanently
withdrawn, before an individual is ordered directly to alter his method of
business, or before discipline is imposed upon him, the individual
immediately concerned should be apprised not only of the contemplated
action with sufficient precision to permit his preparation to resist, but,
before final action, he should be apprised of the evidence and contentions
brought forward against him so that he may meet them. He must be offered a
forum which provides him with an opportunity to bring his own contentions
home to those who will adjudicate the controversy in which he is
concerned. The forum itself must be one which is prepared to receive and
consider all that he offers which is relevant to the controversy." Final
Report, p. 62.
The monographs prepared under the direction of the Committee support
the conclusion that by statutory direction or administrative
interpretation agencies consistently grant at least minimum rights of
hearing. For example, the Walsh-Healey Act is enforceable by the
Government's recovery of liquidated damages and by its withholding further
contracts for a three-year period. Administrative hearings are employed
for all contested action. Monograph of the Attorney General's Committee on
Administrative Procedure, S. Doc. No. 186, 76th Cong., 3d Sess., Part 1,
p. 7. It is generally the practice of the Veterans' Administration to
grant hearings on request of claimants. Id., Part 2, p. 11. Hearings are
granted on request on applications for permits from the Federal Alcohol
Administration, id., Part 5, p. 6, and when licenses granted under the
Grain Standards Act are suspended or revoked, id., Part 7, p. 10. The
Federal Deposit Insurance Corporation determines admissibility of banks to
membership without giving the applicant a hearing or formal opportunity to
contradict the bank examiner's report. However, grounds for disapproval
are reported to the applicant. Id., Part 13, p. 15. War Department
officials grant hearings on applications to construct installations in
navigable waters, except when it is clear that the application should or
should not be granted. S. Doc. No. 10, 77th Cong., 1st Sess., Part 2, p.
7. A 1939 amendment to the social security law requires hearings in the
event a claimant is dissatisfied with the disposition of the case by the
Bureau of Old-Age and Survivors Insurance. Id., Part 3, p. 14. The
Department of the Interior grants hearings in allocating grazing lands,
id., Part 7, pp. 9, 10; in disposing of applications for mineral leases,
except where hearing would serve no useful purpose, id., at 26; and in
determining questions of fact necessary to issuing mining patents, id., at
36. Hearings are frequently employed in investigations under flexible
tariff procedures of the Tariff Commission, id., Part 14, p.
12. |
| [192] | *fn17b
The importance of opportunity to be heard is recognized as well by the
English courts. The leading case is Board of Education v. Rice, [1911] A.
C. 179. Lord Loreburn said in dictum, "In such cases the Board of
Education will have to ascertain the law and also to ascertain the facts.
I need not add that in doing either they must act in good faith and fairly
listen to both sides, for that is a duty lying upon every one who decides
anything. . . . They can obtain information in any way they think best,
always giving a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant statement
prejudicial to their view." Id., at 182. This principle has been approved
in a long line of decisions. See Local Government Board v. Arlidge, [1915]
A. C. 120, 132-133; General Medical Council v. Spackman, [1943] A. C. 627;
Errington v. Minister of Health, [1935] 1 K. B. 249; Rex v. Westminster,
[1941] 1 K. B. 53. The Committee on Ministers' Powers reported in 1936
that while in administrative determination a Minister may "depart from the
usual forms of legal procedure or from the common law rules of evidence,
he ought not to depart from or offend against 'natural justice.'" Three
principles of "natural justice" were stated to be that "a man may not be a
judge in his own cause," that "No party ought to be condemned unheard,"
and that "a party is entitled to know the reason for the decision." Report
of Committee on Ministers' Powers, Cmd. 4060, pp. 75-80. |
| [193] | *fn18b
Mr. Justice Holmes made this remark in a letter to Mr. Arthur Garfield
Hays in 1928. See Bent, Justice Oliver Wendell Holmes, 312. |
| [194] | *fn19b
"In a government like ours, entirely popular, care should be taken in
every part of the system, not only to do right, but to satisfy the
community that right is done." 5 The Writings and Speeches of Daniel
Webster, 163. The same thought is reflected in a recent opinion by the
Lord Chief Justice. A witness in a criminal case had been interrogated by
the court in the absence of the defendant. Quashing the conviction, Lord
Goddard said: "That is a matter which cannot possibly be justified. I am
not suggesting for one moment that the justices had any sinister or
improper motive in acting as they did. It may be that they sent for this
officer in the interests of the accused; it may be that the information
which the officer gave was in the interests of the accused. That does not
matter. Time and again this court has said that justice must not only be
done but must manifestly be seen to be done. . . ." Rex v. Justices of
Bodmin, [1947] 1 K. B. 321, 325. |
| [195] | *fn20b
Other evidence is furnished by the State of New York. The Feinberg Law,
comparable in purpose and in its scheme to the Loyalty Order, makes notice
and hearing prerequisite to designation of organizations. See Thompson v.
Wallin, 301 N. Y. 476, 494, 95 N. E. 2d 806, 814-815. |
| [196] | *fn21b
Act of September 23, 1950, §§ 13, 14, 64 Stat. 987, 998, 1001.
1c The Bureau of Internal Revenue canceled the tax-exempt status of
contributions to eight "subversive" organizations shortly after the
Attorney General's list was released. The Bureau's announcement of the
revocation indicated that the listing provided the basis for it. Treasury
Dept. Press Release No. S-613, Feb. 4, 1948, 5 CCH 1948 Fed. Tax Rep.
para. 6075. The New York Feinberg Law, directed at eliminating members of
subversive organizations from employment in the public schools, authorizes
the Board of Regents to utilize the Attorney General's list in drawing up
its own list of subversive organizations. Membership in a listed
organization is prima facie evidence of disqualification. Laws of New
York, 1949, c. 360, para. 3022 (2). The New York Superintendent of
Insurance recently brought an action to dissolve the International Workers
Order, Inc., petitioner in No. 71, on the grounds that it was on the
Attorney General's list. Matter of People of the State of New York, Motion
165, Supreme Court of New York County, Dec. 18, 1950. [See 199 Misc. 941.]
The Maryland Ober Law requires candidates for appointive or elective
office to certify whether they are members of "subversive" organizations.
Laws of Maryland, 1949, c. 86, paras. 10-15. The Commission which drafted
the Act contemplated that the Attorney General's list would be employed in
policing these oaths. Report of Commission on Subversive Activities to
Governor Lane and the Maryland General Assembly, January, 1949, p. 43. 2c
Rule 8 (a), Federal Rules of Civil Procedure. 3c As MR. JUSTICE
FRANKFURTER points out, due process requires no less. But apart from due
process in the constitutional sense is the power of the Court to prescribe
standards of conduct and procedure for inferior federal courts and
agencies. See McNabb v. United States, 318 U.S. 332.
4c The International Tribunal tried Nazi organizations to determine
whether they were "criminal." Art. 9, Charter of the International
Military Tribunal, Nazi Conspiracy and Aggression, Vol. 1, Office of U.S.
Chief Counsel, U.S. Government Printing Office (1946) p. 6. That
procedure, unlike the present one, provided that accused organizations
might defend themselves against that charge. Ibid. But the finding of
guilt as to an organization was binding on an individual who was later
brought to trial for the crime of membership in a criminal organization.
Article 10 provided: "In cases where a group or organization is declared
criminal by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial for
membership therein before national, military or occupation courts. In any
such case the criminal nature of the group or organization is considered
proved and shall not be questioned." Id. 5c Barth, The Loyalty of Free Men
(1951), p. 109. 6c "The oath to be taken by any person elected or
appointed to any office of honor or profit either in the civil, military,
or naval service, except the President of the United States shall be as
follows: 'I, A B, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies, foreign
and domestic; that I will bear true faith and allegiance to the same; that
I take this obligation freely, without any mental reservation or purpose
of evasion; and that I will well and faithfully discharge the duties of
the office on which I am about to enter. So help me God.'" 23 Stat. 22, R.
S. § 1757, 5 U. S. C. § 16. And see Act of Sept. 6, 1950, Pub. L. No. 759,
§ 1209, 64 Stat. 595, 764. 7c See the address by Benjamin V. Cohen, 96
Cong. Rec. A785, A786. 8c 448 H. C. Deb. 1703 et seq., 3418 et seq. (5th
Ser. 1947-1948). The meticulous care with which this small select group is
handled is reflected in the letter of the Prime Minister, dated Dec. 1,
1948, reporting on the purge of communists and fascists from the civil
service. 459 H. C. Deb. 830 (5th Ser. 1948-1949). The number of cases
considered by the end of April, 1950, was 86, classified as follows:
Transferred to nonsecret departments 32 Resigned 5 Exonerated and
reinstated 19 Dismissed (including one Fascist) 7 Retired for health
reasons before completion of investigations 1 On special leave, either sub
judice or confirmed Communists awaiting transfer or dismissal 22 86 See
British Information Services, Reference Division, April, 1950. 9c The
Civil Service Commission reports as of February, 1951, the following
statistics relating to adjudications of loyalty under Executive Order No.
9835 of March 21, 1947: Total cases received by Loyalty Boards 14,910
Less: cases where employee left the service during in] vestigations 1,722
Cases received for adjudication 13,188 Less: cases where employee
thereafter resigned 1,331 field investigation reports pending in loyalty
boards 1,060 cases in Department of the Army 1,304 Cases adjudicated 9,493
Eligible determination 8,964 Ineligible, excluding 20 cases on review 529
Disposition of ineligibles: Dismissed 307 Restored after appeal 197
Remanded after appeal 19 On appeal 26. 1d United States v. Morton Salt
Co., 338 U.S. 632, 652. 2d "Boards . . . should not
enter upon any evidential investigation of the nature of any of the
organizations identified in the Attorney General's list, for the purpose
of attacking, contradicting, or modifying the controlling conclusion
reached by the Attorney General in such list. . . . The Board should
permit no evidence or argument before it on the point." Loyalty Review
Board, Memorandum No. 2, March 9, 1948. 3d Eberlein v. United States, 257 U.S. 82; Keim v. United States, 177
U.S. 290. This is true, although reasons stated are alleged to
be false or the officer taking the action is alleged to have acted in a
biased, prejudicial and unfair manner. Golding v. United States, 78 Ct.
Cl. 682, 685; cert. denied, 292 U.S. 643. 4d "A total
of 3,166 Government employees have quit or have been discharged under
President Truman's loyalty program since it began March 21, 1947, the
Loyalty Review Board reported today. "Of these, 294 actually were
discharged for disloyalty. The remainder, 2,872, quit while under
investigation and might or might not have been found disloyal." New York
Times, January 16, 1951. 5d 307 U.S. 325, 349. That
was an action to mandamus the Secretary of State to issue a passport, to
which it was conceded Miss Elg had no legal right, its issuance being
wholly within Executive discretion which the courts would not attempt to
control. Chief Justice Hughes pointed out, however, that its denial to
Miss Elg was not grounded in the Secretary's general discretion but
"solely on the ground that she had lost her native born American
citizenship." Finding that ground untenable, this Court directed its
decree against the Secretary. The Secretary might say she would get no
passport, but he could not, for unjustifiable reasons, say she was
ineligible for one. 6d Bailey v. Richardson, 341 U.S. 918. |
|
| |
| Dissent Footnotes | |
|
| |
| [197] | *fn1
5 U. S. C. (Supp. II) § 118j:
"(1) It shall be unlawful for any person employed in any capacity by
any agency of the Federal Government, whose compensation, or any part
thereof, is paid from funds authorized or appropriated by any Act of
Congress, to have membership in any political party or organization which
advocates the overthrow of our constitutional form of government in the
United States. "(2) Any person violating the provisions of this section
shall be immediately removed from the position or office held by him, and
thereafter no part of the funds appropriated by any Act of Congress for
such position or office shall be used to pay the compensation of such
persons." |
| [198] | *fn2
See 12 Fed. Reg. 1938, 5 CFR § 210.11 (a):
"(a) Standard. The standard for the refusal of employment or the
removal from employment in an Executive department or agency on grounds
relating to loyalty shall be that, on all the evidence, reasonable grounds
exist for belief that the person involved is disloyal to the Government of
the United States. The panel shall reach its decision on consideration of
the complete file, arguments, brief and testimony presented to it. "(b)
Activities and associations. Among the activities and associations of an
applicant or employee which may be considered in connection with the
determination of disloyalty may be one or more of the following: . . . .
"(6) Membership in, affiliation with or sympathetic association with any
foreign or domestic organization, association, movement, group or
combination of persons, designated by the Attorney General 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 other persons 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." |
| [199] | *fn3
"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.
"a. The Loyalty Review Board shall disseminate such information to all
departments and agencies." |
| [200] | *fn4
5 CFR § 210.11 (b) (6):
"Such membership, affiliation or sympathetic association is simply one
piece of evidence which may or may not be helpful in arriving at a
conclusion as to the action which is to be taken in a particular case. . .
." See 5 CFR § 200.1. 5 13 Fed. Reg. 1471: "After the issuance of
Executive Order No. 9835 by the President, the Department of Justice
compiled all available data with respect to the type of organization to be
dealt with under that order. The investigative reports of the Federal
Bureau of Investigation concerning such organizations were correlated.
Memoranda on each such organization were prepared by attorneys of the
Department. The list of organizations contained herein has been certified
to the Board by the Attorney General on the basis of recommendations of
attorneys of the Department as reviewed by the Solicitor General, the
Assistant Attorneys General, and the Assistant Solicitor General, and
subsequent careful study of all by the Attorney General." Cf. United
States v. Chemical Foundation, 272 U.S. 1, 14; Lewis
v. United States, 279 U.S. 63, 73. |
| [201] | *fn6
Cf. Nash v. United States, 229 U.S. 373, 377; N. Y.
Central Securities Corp. v. United States, 287 U.S. 12, 24; United States v. Petrillo, 332 U.S. 1. |
| [202] | *fn7
5 CFR § 210.11 (b):
"(1) Sabotage, espionage, or attempts or preparations therefor, or
knowingly associating with spies or saboteurs; "(2) Treason or sedition or
advocacy thereof; "(3) Advocacy of revolution or force or violence to
alter the constitutional form of government of the United States; "(4)
Intentional, unauthorized disclosure to any person under circumstances
which may indicate disloyalty to the United States, of documents or
information of a confidential or non-public character obtained by the
person making the disclosure as a result of his employment by the
Government of the United States, or prior to his employment; "(5)
Performing or attempting to perform his duties, or otherwise acting, so as
to serve the interests of another government in preference to the
interests of the United States; . . . ." See also n. 2,
supra. |
| [203] | *fn8
In Schneiderman v. United States, 320 U.S. 118, 148,
158, a review of the evidence of communist theory upon the use of force
and violence presented in that record led this Court to hold that the
evidence concerning communist teaching upon force and violence was not so
"clear, unequivocal and convincing" as to justify deportation of that
defendant. We refused specifically to pass upon the attitude of communism
toward force and violence. 320 U.S. at 148,
158. |
| [204] | *fn9
The Russian Imperial Government fell quickly in February 1917, because its
power had been sapped by bureaucratic rapacity and war losses as well as
by communist revolutionary doctrines. Even under those circumstances,
there are said to have been more than a thousand casualties in St.
Petersburg. I Trotsky, History of the Russian Revolution, 141.
The doctrine and practices of communism clearly enough teach the use of
force against an existing noncommunist government to justify an official
of our Government taking steps to protect governmental personnel by
screening individuals to determine whether they accept force and violence
as a political weapon. From the last paragraphs of the Communist Manifesto
to the seizure of the last satellite, force and violence appears as a
communist method for gaining control. Lenin, Collected Works (1930), Vol.
XVIII, pp. 279-280; Trotsky, op. cit., 106, 120, 144, 151; Lenin, The
State and Revolution, August, 1917, Foreign Languages Publishing House,
Moscow (1949), 28, 30, 33. Translations furnished me indicate the same
attitude on the part of Stalin. Collected Works, Vol. I, pp. 131-137,
185-205, 241-246; Vol. III, pp. 367-370. And see Leites, The Operational
Code of the Politburo (1950), c. xiii, "Violence." See § 2 of the Internal
Security Act of 1950, 64 Stat. 987. |
| [205] | *fn10
In the Refugee Committee complaint unconstitutionality of the designation
was predicated upon repugnancy:
"1) It is repugnant to the Constitution of the United States as a
deprivation of freedom of speech, of the press, and of assembly and
association in violation of the First Amendment. "2) . . . as a
deprivation of the fundamental rights of the people of the United States
reserved to the people of the United States by the Ninth and Tenth
Amendments. "3) . . . as a deprivation of liberty and property without due
process of law in violation of the Fifth Amendment." In the Council case,
it was predicated upon a lack of "any advance notice" and the Attorney
General's acting "without making 'an appropriate investigation and
determination,' as required" by the Order. It was said: "The aforesaid
actions of the defendants have been arbitrary, capricious, contrary to
law, in excess of statutory right and authority. Such actions have
violated the rights of the plaintiffs guaranteed by the First and Fifth
Amendments to the Constitution and are contrary to the Ninth and Tenth
Amendments." The same general allegations of violations of the Due Process
Clause and the First Amendment appear in No. 71, International Workers
Order, Inc. |
| [206] | *fn11
Nortz v. United States, 294 U.S. 317, 324; Pierce Oil
Corp. v. City of Hope, 248 U.S. 498; Straus v.
Foxworth, 231 U.S. 162, 168. |
| [207] | *fn12
Bell v. Hood, 327 U.S. 678, 681, 684; Larson v.
Domestic & Foreign Corp., 337 U.S. 682,
690. |
| [208] | *fn13
United Public Workers v. Mitchell, 330 U.S. 75, 95,
and cases cited; American Communications Assn. v. Douds, 339
U.S. 382, 394-399; Feiner v. New York, 340 U.S. 315, 320-321. |
| [209] | *fn14
The fairness of that designation is considered under the next
point. |
| [210] | *fn15
Perhaps they would insist not only on notice that an investigation is to
be had but on an opportunity to be present and to have counsel, to
cross-examine, to object to the introduction of evidence, to argue and to
have judicial review. Cf. Hiatt v. Compagna, 178 F.2d 42, affirmed by an equally divided court, 340 U.S.
880. An injunction against listing could have delayed
administration until today.
The statutory requirement for a hearing explains the statement in
Morgan v. United States, 304 U.S. 1, 14, that "in
administrative proceedings of a quasi-judicial character the liberty and
property of the citizen shall be protected by the rudimentary requirements
of fair play. These demand 'a fair and open hearing,' -- essential alike
to the legal validity of the administrative regulation and to the
maintenance of public confidence in the value and soundness of this
important governmental process. Such a hearing has been described as an
'inexorable safeguard.'" This hearing was a rate determination proceeding.
See the statement in the first Morgan case, 298 U.S. 468, 480: "That duty is widely different from ordinary
executive action. It is a duty which carries with it fundamental
procedural requirements. There must be a full hearing. There must be
evidence adequate to support pertinent and necessary findings of fact." No
enforceable rights to a hearing exist in an alien seeking admission to the
United States. United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 544; Ekiu v. United States, 142 U.S. 651. To the extent that Ng Fung Ho v. White, 259 U.S.
276, requires a hearing, it is on the issue of alienage, and
not of admissibility. |
| [211] | *fn16
Of course, notice to petitioners that an investigation was to be had to
determine whether they had seditious purposes would be useless without
opportunity for an administrative hearing. That is the effect of
petitioners' argument. |
| [212] | *fn17
For example, Shields v. Utah Idaho R. Co., 305 U.S. 177, interpreted a statutory requirement for determination by
the Interstate Commerce Commission of the subjection of the railroad to
the Railway Labor Act to necessitate procedural due process, "the hearing
of evidence and argument." We held, p. 183, that equity had cognizance of
an objection to the proceeding, as "arbitrary and capricious," p. 185,
because failure to post a prescribed notice is punishable as a crime. A
"right" was asserted.
Reliance on Interstate Commerce Comm'n v. Louisville & N. R. Co., 227 U.S. 88, is misplaced. The statute gave a right
to a full hearing, p. 91. United States v. Lovett, 328 U.S. 303, 316, protected an employee against what this Court held
was legislative decree of exclusion from government employment without
trial. Columbia Broadcasting System v. United States, 316 U.S.
407, 418, depends upon this Court's ruling that the regulation
there subjected to attack required the Federal Communications Commission
to reject applications and cancel outstanding licenses "on the grounds
specified in the regulations without more." |
| [213] | *fn18
Duke v. United States, 90 F.2d 840; United States v.
Central Supply Assn., 34 F.Supp. 241. |
| [214] | *fn19
46 Stat. 1421, 40 U. S. C. A. § 258 (a), and annotations; Catlin v. United
States, 324 U.S. 229, 231. |
| [215] | *fn20
E. g., Underwriters from bank employment or direction. 48 Stat. 194, as
amended, 49 Stat. 709, 12 U. S. C. § 78. |
| [216] | *fn21
This Court has declared the courts cannot supervise departmental action in
discharge for inefficient rating, Keim v. United States, 177
U.S. 290, or enjoin leases of public lands where no contract
rights are involved, Chapman v. Sheridan-Wyoming Co., 338 U.S.
621, 625. Cf. Work v. Rives, 267 U.S.
175. |
| [217] | *fn22
It said, p. 111: "It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of the
Executive taken on information properly held secret. Nor can courts sit in
camera in order to be taken into executive confidences. But even if courts
could require full disclosure, the very nature of executive decisions as
to foreign policy is political, not judicial. Such decisions are wholly
confided by our Constitution to the political departments of the
government, Executive and Legislative."
And added, pp. 112-113: "Until the decision of the Board has
Presidential approval, it grants no privilege and denies no right. It can
give nothing and can take nothing away from the applicant or a competitor.
It may be a step which if erroneous will mature into a prejudicial result,
as an order fixing valuations in a rate proceeding may foreshow and compel
a prejudicial rate order. But administrative orders are not reviewable
unless and until they impose an obligation, deny a right or fix some legal
relationship as a consummation of the administrative
process." |
| [218] | *fn23
5 CFR, App. A, p. 200, 13 Fed. Reg. 1471-1473:
"In connection with the designation of these organizations, the
Attorney General has pointed out, as the President had done previously,
that it is entirely possible that many persons belonging to such
organizations may be loyal to the United States; that membership in,
affiliation with, or sympathetic association with, any organization
designated is simply one piece of evidence which may or may not be helpful
in arriving at a conclusion as to the action which is to be taken in a
particular case. 'Guilt by association' has never been one of the
principles of our American jurisprudence. We must be satisfied that
reasonable grounds exist for concluding that an individual is disloyal.
That must be the guide." |
| [219] | *fn24
Keim v. United States, 177 U.S. 290; United Public
Workers v. Mitchell, 330 U.S. 75, 102. Classified
civil service employees by statute shall have notice of the charges in
writing and the privilege of filing an answer with affidavits. The statute
adds, "No examination of witnesses nor any trial or hearing shall be
required except in the discretion of the officer or employee directing the
removal or suspension without pay." 37 Stat. 555, as amended, 5 U. S. C. §
652. And cf. Executive Order dated July 27, 1897, amending Civil Service
Rule II, in 18th Report of the U.S. Civil Service Commission, at
282. |
| [220] | *fn25
5 CFR § 220.2 (a) (6). See note 4, supra. |
| [221] | *fn26
"A total of 3,166 Government employees have quit or have been discharged
under President Truman's loyalty program since it began March 21, 1947,
the Loyalty Review Board reported today.
"Of these, 294 actually were discharged for disloyalty. The remainder,
2,872, quit while under investigation and might or might not have been
found disloyal. "The loyalty figures cover all 2,000,000 or more
Government employees, plus the additional thousands hired since the
program was begun in the spring of 1947. "The regular monthly loyalty
report showed that loyalty boards of the various Federal agencies had
received 13,842 reports from the Federal Bureau of Investigation and other
investigating agencies since March 21, 1947. This meant investigators
found something about those persons that raised a question about their
loyalty. "Of the cases ruled on by loyalty boards, 8,371 were found loyal
and 522 disloyal. Of the 522, 294 were discharged, 186 won their jobs back
on appeal and forty-two are still awaiting decisions." New York Times,
January 16, 1951. See also n. 9 of MR. JUSTICE DOUGLAS'
concurrence. |
| [222] | *fn27
Disqualification grounds are in 5 CFR § 2.104 (a):
"(a) An applicant may be denied examination and an eligible may be
denied appointment for any of the following reasons: "(1) Dismissal from
employment for delinquency or misconduct. "(2) Physical or mental
unfitness for the position for which applied. "(3) Criminal, infamous,
dishonest, immoral, or notoriously disgraceful conduct. "(4) Intentional
false statements or deception or fraud in examination or appointment. "(5)
Refusal to furnish testimony as required by § 5.3 of this chapter. "(6)
Habitual use of intoxicating beverages to excess. "(7) On all the
evidence, reasonable grounds exist for belief that the person involved is
disloyal to the Government of the United States. "(8) Any legal or other
disqualification which makes the applicant unfit for the service."
Paragraph (7) is new. Cf. 12 Fed. Reg. 1938. |
| [223] | *fn28
5 CFR § 9.102 (1):
"No employee, veteran or nonveteran, shall be separated, suspended, or
demoted except for such cause as will promote the efficiency of the
service and for reasons given in writing. The agency shall notify the
employee in writing of the action proposed to be taken. This notice shall
set forth, specifically and in detail, the charges preferred against him.
The employee shall be allowed a reasonable time for filing a written
answer to such charges and furnishing affidavits in support of his answer.
He shall not, however, be entitled to an examination of witnesses, nor
shall any trial or hearing be required except in the discretion of the
agency." See Part 22 for appeals under Veterans' Preference Act of
1944. |
| [224] | *fn29
5 CFR, Part 220. |
| [225] | *fn30
5 CFR § 220.2 (f) and (g).
"(g) . . . The notice of proposed removal action required in paragraph
(f) of this section shall state to the employee: "(1) The charges against
him in factual detail, setting forth with particularity the facts and
circumstances relating to the charges so far as security considerations
will permit, in order to enable the employee to submit his answer, defense
or explanation. "(2) His right to answer the charges in writing, under
oath or affirmation, within a specified reasonable period of time, not
less than ten (10) calendar days from the date of the receipt by the
employee of the notice. "(3) His right to have an administrative hearing
on the charges before a loyalty board in the agency, upon his request.
"(4) His right to appear before such board personally, to be represented
by counsel or representative of his own choosing, and to present evidence
in his behalf." Id., § 220.3 (d): "(d) Presentation of evidence. Both the
Government and the applicant or employee may introduce such evidence as
the board may deem proper in the particular case. "The board shall take
into consideration the fact that the applicant or employee may have been
handicapped in his defense by the non-disclosure to him of confidential
information or by the lack of opportunity to cross-examine persons
constituting such sources of information." |
| [226] | *fn31
The Prime Minister first described this program in a statement in the
House of Commons, March 15, 1948, 448 H. C. Deb. 1703 ff., and in further
detail on March 25, id., at 3418 ff. The standards for the program are set
forth at 451 H. C. Deb., Written Answers, p. 118, in the form of
instructions to three "advisers on Communists and Fascists in the Civil
Service," retired civil servants designated to perform a function
essentially parallel to that of the Loyalty Review Board here:
"1. The Government have stated that no one who is believed to be: --
"(i) either a member of the Communist Party or of a Fascist organisation;
or "(ii) associated with either the Communist Party or a Fascist
organisation in such a way as to raise legitimate doubts about his
reliability; is to be employed in connection with work the nature of which
is vital to the security of the State. "2. You have been appointed to
advise Ministers, in any cases referred to you, whether in your opinion
their prima facie ruling that a civil servant comes under (i) or (ii)
above is or is not substantiated. The decision on what employment is to be
regarded as involving 'connection with work the nature of which is vital
to the security of the State' is one not for you but for Ministers in
charge of Departments. "3. Your functions do not extend beyond advising
the Minister whether the prima facie case has or has not been
substantiated. You are not concerned with the action which he may decide
to take in relation to the matter." The Prime Minister stated that the
civil servant concerned would be informed as specifically as possible of
the charges against him, but that "It is quite impossible -- and everyone
will realise that it is -- that we should give in detail exactly the
sources of information. If we do that, we destroy anything like an
effective security service." Id., Vol. 448, at 3423. He would be allowed
to appear personally in response to charges. Id. at 3425. While the
program is primarily intended to effect the transfer of unreliable civil
servants to jobs not vital to the security of the state (unless their
technical training fits them only for security jobs), nevertheless it has
apparently been extended to cover all jobs in certain agencies, such as
the Air Ministry Headquarters. Id., Vol. 452, at 940-941. The Prime
Minister did not answer directly questions as to the scope of the order in
relation to "the telephone service and key telephone exchanges," id., Vol.
448, at 1705, or "members of the Services who are engaged in dealing with
secret processes." Id. at 1706. |
| [227] | *fn32
Cf. Standard Computing Scale Co. v. Farrell, 249 U.S. 571. |
| [228] | *fn33
Hirabayashi v. United States, 320 U.S. 81, 93,
100. |
| [229] | *fn34
Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426,
442. |
| [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. |
| [119] | The fact that one may not have a legal right to get or keep a
government post does not mean that he can be adjudged ineligible
illegally. Perkins v. Elg.*fn5d
.
To promulgate with force of law a conclusive finding of disloyalty,
without hearing at some stage before such finding becomes final, is a
denial of due process of law. -- On this subject, I agree with the opinion
of MR. JUSTICE FRANKFURTER. That the safeguard of a hearing would not
defeat the effectiveness of a Loyalty Program is apparently the judgment
of Congress and of State Legislatures, for, as he points out, both
congressional and state loyalty legislation recognize the
right. |
| [120] | 3. The organizations may vindicate unconstitutional deprivation of
members' rights. -- There are two stages at which administrative hearings
could protect individuals' legal rights -- one is before an organization
is designated as subversive, the other is when the individual, because of
membership, is accused of disloyalty. Either choice might be a permissible
solution of a difficult problem inherent in such an extensive program. But
an equally divided Court today, erroneously, I think, rejects the claim
that the individual has hearing rights.*fn6d
I am unable to comprehend the process by which those who think the
Attorney General's designation is no more than a press release can
foreclose attack upon it in the employees' case. Also beyond my
understanding is how a Court whose collective opinion is that the
designations are subject to judicial inquiry can at the same time say that
a discharge based at least in part on them is not. |
| [121] | By the procedures of this Loyalty Order, both groups and individuals
may be labeled disloyal and subversive. The Court grants judicial review
and relief to the group while refusing it to the individual. So far as I
recall, this is the first time this Court has held rights of individuals
subordinate and inferior to those of organized groups. I think that is an
inverted view of the law -- it is justice turned bottom-side up. I
have believed that a corporation can maintain an action to protect rights
under the Due Process or Equal Protection Clauses of the Fourteenth
Amendment, e. g., Wheeling Steel Corp. v. Glander, 337 U.S. 562, 574. The only practical judicial policy when people pool
their capital, their interests, or their activities under a name and form
that will identify collective interests, often is to permit the
association or corporation in a single case to vindicate the interests of
all. |
| [122] | This procedure is appropriate here where the Government has lumped all
the members' interests in the organization so that condemnation of the one
will reach all. The Government proceeds on the basis that each of these
associations is so identical with its members that the subversive purpose
and intents of the one may be attributed to and made conclusive upon the
other. Having adopted this procedure in the Executive Department, I think
the Government can hardly ask the Judicial Department to deny the standing
of the organizations to vindicate its members' rights. |
| [123] | Unless a hearing is provided in which the organization can present
evidence as to its character, a presumption of disloyalty is entered
against its every member-employee, and because of it, he may be branded
disloyal, discharged, and rendered ineligible for government service. I
would reverse the decisions for lack of due process in denying a hearing
at any stage. |
| [124] | MR. JUSTICE REED, with whom THE CHIEF JUSTICE and MR. JUSTICE MINTON
join, dissenting. |
| [125] | The three organizations named in the caption, together with certain
other groups and individuals, filed suits in the United States District
Court for the District of Columbia primarily to have declared
unconstitutional Executive Order No. 9835, March 21, 1947, 12 Fed. Reg.
1935, as applied against these petitioners. Acting under Part
III, § 3 of Executive Order No. 9835, note 3, infra, the Attorney General,
on November 24, 1947, transmitted the required list of organizations to
the Loyalty Review Board. This list included the three above-named
organizations. The Board promptly disseminated the information to all
departments and agencies. It was published as Appendix A to Title 5,
Administrative Personnel, CFR § 210.11 (b) (6). 13 Fed. Reg. 1471. Later,
September 17, 1948, the three organizations were designated by the
Attorney General as "communist." 13 Fed. Reg. 6135. The relief sought by
petitioners was to have the names of the organizations deleted from the
allegedly unconstitutionally created lists because of the obvious harm to
their activities by reason of their designation. |
| [126] | The list was transmitted to the Board by the Attorney General as a
part of the plan of the President, broadly set forth in Executive Order
No. 9835, to furnish maximum protection "against infiltration of disloyal
persons into the ranks of [government] employees, and equal protection
from unfounded accusations of disloyalty" for the loyal employees. 12 Fed.
Reg. 1935. Executive Order No. 9835 came after long consideration of the
problems of possible damage to the Government from disloyalty among its
employees. 92 Cong. Rec. 9601. See the Report of the President's Temporary
Commission on Employee Loyalty (appointed 1946), p. 23: |
| [127] | "The presence within the government of any disloyal or subversive
persons, or the attempt by any such persons to obtain government
employment, presents a problem of such importance that it must be dealt
with vigorously and effectively." |
| [128] | A list of subversive organizations under Executive Order No. 9300, 3
CFR, 1943 Cum. Supp., 1252, was likewise disseminated to government
agencies. 13 Fed. Reg. 1473. Great
Britain (see note 31, infra), Australia (Act of October 20, 1950), New
Zealand (Deynzer v. Campbell, [1950] N. Z. L. R. 790; 37th Rep., Public
Service Comm'n, New Zealand, 1949, p. 14; 38th Rep., Public Service
Comm'n, New Zealand, 1950, p. 12), and the Union of South Africa (Act No.
44 of 1950) have taken legislative or administrative steps to control
disloyalty among government employees. See The Report of the Royal
Commission (Canada) appointed under Order in Council, P. C. 411, February
5, 1946. The method of dealing with communism and communists adopted by
the Commonwealth of Australia was held beyond the powers of that
government. Australian Communist Party v. Commonwealth, decision of
Friday, March 9, 1951, 83 C. L. R. 1. |
| [129] | The procedure for designating these petitioners as communists may be
summarized as follows: Executive Order No. 9835, Part III, was issued by
the President as Chief Executive, "in the interest of the internal
management of the Government" and under the Civil Service Act of 1883, 22
Stat. 403, as amended, and § 9A of the Hatch Act, 5 U. S. C. (Supp. II) §
118j. The former acts give general regulatory powers over the employment
and discharge of government personnel; the latter is more specific.*fn1
These present cases do not involve the removal of any employee. The
Order required investigation of the loyalty of applicants for government
employment and similar investigation of present employees. To assure
uniformity and fairness throughout the Government in the investigation of
employees, a Loyalty Review Board was created to review loyalty cases from
any department or agency, disseminate information pertinent to employee
loyalty programs, and advise the heads thereof. Standards were provided
for employment and discharge. So far as pertinent to the objections of
petitioner to inclusion on the list of subversive and communist
organizations, they appear in note 3 and in the note below.*fn2
It was apparently to avoid the necessity of continuous reexamination by
all government departments and agencies of the characteristics of
organizations suspected of aims inimical to the Government that provision
was made in the Order for examination and designation of such
organizations by the
Attorney General. 12 Fed. Reg. 1938, Part III, § 3.*fn3
It was under this plan that the Attorney General made his
designations. |
| [130] | The designations made available for the use of the Loyalty Review
Board and the departmental or agency loyalty boards, the result of the
investigation of the Attorney General into the character of organizations
that might fall under suspicion as totalitarian, fascist, communist or
subversive. The list does not furnish a basis for any court action against
the organizations so designated. It of course might follow from discovery
of facts by the investigation that criminal or civil proceedings would be
begun to enforce an applicable criminal statute or to cancel the franchise
or some license of a listed organization. In such a proceeding, however,
the accused organization would have the usual protections of any
defendant. The list is evidence only of the character of the listed
organizations in proceedings before loyalty boards to determine whether
"reasonable" grounds exist for belief "that the employee under
consideration" is disloyal to the Government of the United States. See
note 2, supra. The names were placed on the list by the Attorney General
after investigation. If legally permissible, as carried out by the
Attorney General, there is no question but that a single investigation as
to the character of an
organization is preferable to one by each of the more than a hundred
agencies of government that are catalogued in the United States Government
Organization Manual. To require a determination as to each organization
for the administrative hearing of each employee investigated for
disloyalty would be impossible. The employee's association with a listed
organization does not, under the Order, establish, even prima facie,
reasonable grounds for belief in the employee's disloyalty.*fn4 |
| [131] | None of the complaints deny that the Attorney General made an
"investigation" of the organizations to determine whether or not they were
totalitarian, fascist, communist or subversive as required by Part III, §
3, or that he had material information concerning disloyal activities on
their part. The Council came the nearest to such an allegation in the
quoted excerpts from their complaint in note 10, but we read them as no
more than allegations of unconstitutionality because "investigation"
without notice and hearing is not "appropriate." Certainly there is no
specific allegation of the way in which the Attorney General failed to
follow the Order. We therefore assume that the designation was made after
appropriate investigation and determination.*fn5
No
objection is or could reasonably be made in the records or briefs to an
examination by the Government into the loyalty of its employees. Although
the Founders of this Republic rebelled against their established
government of England and won our freedom, the creation of our own
constitutional government endowed that new government, the United States
of America, with the right and duty to protect its existence against any
force that seeks its overthrow or changes in its structure by other than
constitutional means. Tolerant as we are of all political efforts by
argument or persuasion to change the basis of our social, economic or
political life, the line is drawn sharply and clearly at any act or
incitement to act in violation of our constitutional processes. Surely the
Government need not await an employee's conviction of a crime involving
disloyalty before separating him from public service. Governments cannot
be indifferent to manifestations of subversion. As soon as these are
significant enough reasonably to cause concern as to the likelihood of
action, the duty to protect the state compels the exertion of governmental
power. Not to move would brand a government with a dangerous weakness of
will. The determination of the time for action rests with the executive
and legislative arms. An objection to consideration of an employee's
sympathetic association with an admitted totalitarian, fascist, communist
or subversive group, as bearing upon the propriety of his retention or
employment as a government employee would have no better standing. The
Order gives conclusive indication of the type of organization that is
meant by the four word-labels.*fn6
Following them in Part III, § 3, 12 Fed. Reg. 1938, are the words, "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." Bracketed with membership in
listed organizations (Exec. Order No. 9835, Part V) as activities for
consideration in determining an employee's loyalty are those listed below.
These are the standards that define the type of organization subject to
designation.*fn7
Of course, the Order means that a communist or subversive organization is
of the same general character as one that seeks to alter our form of
government by unconstitutional means, 13 Fed. Reg. 6137, to wit by force
and violence. |
| [132] | Procedure under the Executive Order does not require "proof" in the
sense of a court proceeding that these communist organizations teach or
incite to force and violence to
obtain their objectives.*fn8
What is required by the Order is an examination and determination by the
Attorney General that these organizations are "communist." The description
"communist" is adequate for the purposes of inquiry and listing. No such
precision of definition is necessary as a criminal prosecution might
require. Cf. United States v. Chemical Foundation, 272 U.S. 1, 14. Communism is well understood to mean a group seeking to
overthrow by force and violence governments such as ours and to establish
a new government based on public ownership and direction of productive
property. Undoubtedly, there are reasonable grounds to conclude that
accepted history teaches that revolution by force and violence to
accomplish this end is a tenet of communists.*fn9
No more is necessary to justify an organization's designation as
communist. As
a basis for petitioners' attack on the list, the Refugee Committee set
forth facts in its complaint to show its charitable character. These
indicate activities and expenditures in aid of the Spanish Republicans in
flight from their homeland. The International Workers Order sets forth
facts to show that it was a duly organized fraternal benefit society under
New York law, furnishing sickness and death benefits as well as life
insurance protection to its members. It states other worthy objectives in
which it is engaged and asserts it is not an organization such as are
referred to in the Order, Part III, § 3, supra. The Council, too, sets out
its purpose to promote American-Soviet friendship by means of education
and information. It asserts: |
| [133] | "In all its activities the NATIONAL COUNCIL has sought to further the
best interests of the American people by lawful, peaceful and
constitutional means." |
| [134] | The absence of any provision in the Order or rules for notice to
suspected organizations, for hearings with privilege to the organizations
to confront witnesses, cross-examine, produce evidence and have
representation of counsel or judicial review of the conclusion reached by
the Attorney General is urged by the petitioners, as a procedure so
fundamentally unfair and restrictive of personal freedoms as to violate
the Federal Constitution, specifically the Due Process Clause and the
First Amendment. No opportunity was allowed by the Attorney General for
petitioners to offer proof of the legality of their purposes or to
disprove charges of subversive operations. This
is the real gravamen of each complaint, the basis upon which the
determination of unconstitutionality is sought.*fn10 |
| [135] | To these complaints, the Government filed motions to dismiss because
of failure to state a claim upon which relief could be granted. The
motions were granted by the District Court and the Court of Appeals
affirmed. |
| [136] | Admissions by motions to dismiss. -- It is held in MR. JUSTICE
BURTON'S opinion that the motion to dismiss should have been denied. It is
said: |
| [137] | "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." P.
137. |
| [138] | I understand MR. JUSTICE BURTON'S opinion to hold that as a motion to
strike for failure to state a cause of action admits all well-pleaded
facts, respondents' motion admits such allegations in the complaint as
that quoted in the third preceding paragraph from the Council's complaint
and the assertions that petitioners are not "totalitarian, fascist,
communist or subversive." Such statements, however, appear to me to be
only conclusions of law as to the effect of facts stated, or empty
assertions or conclusions without well-pleaded facts to sustain them.*fn11
Where the issue is the permissibility of designation without notice or
hearing, a motion to strike does not admit an allegation of "arbitrary"
action or that "all its activities [are] . . . constitutional." These
complaints may not be decided upon any such posture in pleading.
Petitioners' charge, that their "designation" violates due process and the
First Amendment, remains the issue. |
| [139] | Standing to sue. -- A question is raised by the United States as to
petitioners' standing to maintain these actions. It seems unnecessary to
analyze that problem in this dissent. If there should be a determination
that petitioners' constitutional rights are violated by petitioners'
designation under Part III, § 3, of the Order, it would seem they would
have standing to seek redress. The "standing" turns on the existence of
the federal right.*fn12
Does petitioners' designation abridge their rights under the First
Amendment? Do petitioners have a constitutional right under the Due
Process Clause of the Fifth Amendment
to require a hearing before the Attorney General designates them as a
subversive or communist organization for the purposes of Executive Order
No. 9835? |
| [140] | First Amendment. -- Petitioners assert that their inclusion on the
disloyal list has abridged their freedom of speech, since listeners or
readers are more difficult to obtain for their speeches and publications,
and parties interested in their work are more hesitant to become
associates. The Refugee Committee brief adds that "thought" is also
abridged. A concurring opinion accepts these arguments to the point of
concluding that the publication of the lists "with or without a hearing"
violates the First Amendment. |
| [141] | This Court, throughout the years, has maintained the protection of the
First Amendment as a major safeguard to the maintenance of a free
republic. This Nation has never suffered from an enforced conformity of
expression or a limitation of criticism. But neither are we compelled to
endure espionage and sedition. Wide as are the freedoms of the First
Amendment, this Court has never hesitated to deny the individual's right
to use the privileges for the overturn of law and order. Reasonable
restraints for the fair protection of the Government against incitement to
sedition cannot properly be said to be "undemocratic" or contrary to the
guarantees of free speech. Otherwise the guarantee of civil rights would
be a mockery.*fn13
Even when this Court spoke out most strongly against previous restraints,
it was careful to recognize that "the security of the community life may
be protected against incitements to acts of violence and the overthrow by
force of orderly government." Near v. Minnesota, 283 U.S. 697, 716. Recognizing
that the designation, rightly or wrongly, of petitioner organizations as
communist impairs their ability to carry forward successfully whatever
legitimate objects they seek to accomplish, we do not accept their
argument that such interference is an abridgment of First Amendment
guarantees.*fn14
They are in the position of every proponent of unpopular views. Heresy
induces strong expressions of opposition. So long as petitioners are
permitted to voice their political ideas, free from suggestions for the
opportune use of force to accomplish their social and economic aims, it is
hard to understand how any advocate of freedom of expression can assert
that their right has been unconstitutionally abridged. As nothing in the
orders or regulations concerning this list limits the teachings or support
of these organizations, we do not believe that any right of theirs under
the First Amendment is abridged by publication of the list. |
| [142] | Due Process. -- This point brings us face to face with the argument
that whether the Attorney General was right or wrong in listing these
organizations, his designation cannot stand because a final decision of
ineligibility for employment without notice and hearing rises to the
importance of a constitutional defect. If standards for definition of
organizations includable on the list are necessary, the order furnishes
adequate tests as appears from the text preceding notes 2 and 7 above and
the standards set out in those notes. Compare cases cited, note 6,
supra. |
| [143] | Does due process require notice and hearing for the Department of
Justice investigation under Executive Order No. 9835, Part III, § 3, note
3, supra, preliminary to listing? As a standard for due process one cannot
do better than to accept as a measure that no one may be deprived of
liberty or property without such reasonable notice
and hearing as fairness requires. This is my understanding of the meaning
of the opinions upon due process cited in the concurring opinions. We are
not here concerned with the rightfulness of the extent of participation in
the investigations that might be claimed by petitioners.*fn15
They were given no chance to take part. Their claim is that the listing
resulted in a deprivation of liberty or property contrary to the procedure
required by the Fifth Amendment.*fn16
The
contention can be answered summarily by saying that there is no
deprivation of any property or liberty of any listed organization by the
Attorney General's designation. It may be assumed that the listing is
hurtful to their prestige, reputation and earning power. It may be such an
injury as would entitle organizations to damages in a tort action against
persons not protected by privilege. See Spalding v. Vilas, 161
U.S. 483; Glass v. Ickes, 73 App. D.C. 3, 117 F.2d 273. This
designation, however, does not prohibit any business of the organizations,
subject them to any punishment or deprive them of liberty of speech or
other freedom. The cases relied upon in the briefs and opinions of the
majority as requiring notice and hearing before valid action can be taken
by administrative officers are where complainant will lose some property
or enforceable civil or statutory right by the action taken or proposed.*fn17
"[A] mere abstract declaration" by an administrator regarding the
character of an organization, without the effect of forbidding or
compelling conduct on the part of complainant, ought not to be subject to
judicial interference. Rochester Telephone Corp. v. United States, 307 U.S. 125, 129, 143. That is, it does not require
notice and hearing. |
| [144] | These petitioners are not ordered to do anything and are not punished
for anything. Their position may be analogized to that of persons under
grand jury investigation. Such persons have no right to notice by and
hearing before a grand jury; only a right to defend the charge at trial.*fn18
Property may be taken for government use without notice or hearing by a
mere declaration of taking by the authorized official. No court has
doubted the constitutionality of such summary action under the due process
clause when just compensation must be paid ultimately.*fn19
Persons may be barred from certain positions merely because of their
associations.*fn20 |
| [145] | To allow petitioners entry into the investigation would amount to
interference with the Executive's discretion, contrary to the ordinary
operations of Government. Long ago Mr. Chief Justice Taney in Decatur v.
Paulding, 14 Pet. 497, stated the rule and the reason against judicial
interference with executive discretion: |
| [146] | "The head of an executive department of the government, in the
administration of the various and important concerns of his office, is
continually required to exercise judgment and discretion. . .
. |
| [147] | "If a suit should come before this Court, which involved the
construction of any of these laws, the Court certainly would not be bound
to adopt the construction given by the head of a department. And
if they supposed his decision to be wrong, they would, of course, so
pronounce their judgment. But their judgment upon the construction of a
law must be given in a case in which they have jurisdiction, and in which
it is their duty to interpret the act of Congress, in order to ascertain
the rights of the parties in the cause before them." P. 515. |
| [148] | "The interference of the Courts with the performance of the ordinary
duties of the executive departments of the government, would be productive
of nothing but mischief; and we are quite satisfied that such a power was
never intended to be given to them." P. 516. |
| [149] | That rule still stands. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 704.*fn21
This Court applied it recently in Chicago & Southern Air Lines, Inc.
v. Waterman S. S. Corp., 333 U.S. 103, as to foreign
policy decisions of the President concerning overseas airline licenses.*fn22
In Louisiana v. McAdoo, 234 U.S. 627, the State
sought to enjoin
an order of the Secretary of the Treasury fixing the customs rate on sugar
as "arbitrary, illegal and unjust" and irreparably injurious to the State.
The Court refused the State permission to file the suit as in reality a
suit against the United States, saying an officer may be compelled to act
ministerially. |
| [150] | "But if the matter in respect to which the action of the official is
sought, is one in which the exercise of either judgment or discretion is
required, the courts will refuse to substitute their judgment or
discretion for that of the official entrusted by law with its execution.
Interference in such a case would be to interfere with the ordinary
functions of government." P. 633. |
| [151] | It seems clearly erroneous to suggest that "listing" determines any
"guilt" or "punishment" for the organizations or has any finality in
determining the loyalty of members. The President and the Attorney General
pointed this out.*fn23
It is written into the Code of Federal Regulations, CFR
§ 210.11 (b) (6), note 4, supra. The standard for discharge emphasizes the
meaning. See notes 2 and 7, supra. |
| [152] | Before stating our conclusions a comment should be made as to the
introduction by the concurring opinions of a discussion of the rights of a
member of these organizations. It is suggested by one concurrence that as
the "Government proceeds on the basis that each of these associations is
so identical with its members that the subversive purpose and intents of
the one may be attributed to and made conclusive upon the other," the
organization must be permitted to vindicate the members' rights or due
process is not satisfied. Another concurrence states "an employee may lose
his job because of the Attorney General's secret and ex parte action."
Both concurrences indicate, it seems to me, that as a member of petitioner
organizations is denied due process by the effect of listing the
organizations, the organization is likewise denied due process in the
listing. Without accepting the logic of the concurrences, and waiving
inquiry as to the standing of a corporation or unincorporated association
to defend the rights of a member to employment, we think the suggestions
as to lack of due process are based on an erroneous premise. Employees
generally, under executive departments and agencies, whether or not
members of listed organizations, without special statutory protection such
as permanent employees under the competitive and classified civil service
laws and regulations or preference eligibles under the Veterans'
Preference Act of 1944, 58 Stat. 387, 5 U. S. C. § 851, 5 CFR, Parts 9 and
22, and Part 2, § 2.104, are subject to summary removal by the appointing
officers.*fn24
Listing of these organizations does
not conclude the members' rights to hold government employment. It is only
one piece of evidence for consideration.*fn25
That mere membership in listed organizations does not normally bring about
findings of disloyalty is graphically shown by a report of proceedings
under the loyalty program.*fn26
The procedure for removal of employees suspected of disloyalty follows the
routine prescribed for the removal of employees on other grounds for
dismissal. Employees under investigation have never had the right to
confrontation, cross-examination and quasi-judicial hearing. 37 Stat. 555,
as amended, 5 U. S. C. § 652. Normal
removal procedure functions for permanent employees about in this way. The
employing agency may remove for the efficiency of the service, including
grounds for disqualification of an applicant. 5 CFR, 1947 Supp., §
9.101.*fn27
Removal requires notice and charges.*fn28
Before the loyalty review boards similar procedure is followed.*fn29
Where initial consideration indicates a
removal of an incumbent for disloyalty may be warranted, notice is
provided for.*fn30
Thus, there is scrupulous care taken to see that an employee who has
fallen under suspicion has notice of the charges and an opportunity to
explain his actions. The employee has no opportunity to disprove the
characterization placed upon the listed organization by the Attorney
General for the practical reasons stated following note 2, supra. The
employee does have every opportunity to explain his association with that
organization. The Constitution requires for the employee no more than this
fair opportunity to explain his questioned activities. Such procedure is
quite similar to that followed in Great Britain
in the removal or transfer of civil servants from positions "vital to the
security of the State." The Prime Minister assumed the authority to
designate membership in the Communist Party or "other forms of continuing
association" therewith as sufficient to bar employment in sensitive
areas.*fn31 |
| [153] | Conclusion. -- In our judgment organizations are not affected by these
designations in such a manner as to permit
a court's interference or to deny due process. That conclusion holds good
also when we assume the organizations may present their members'
grievances over discharge as a part of the organization's case. The
administrative hearing granted an employee facing discharge is a statutory
modification of the employing agent's former authority to discharge
summarily. Such act of grace does not create a constitutional right. Due
process is called for in determinations affecting rights. |
| [154] | What petitioners seek is a ruling that the Government cannot designate
organizations as communist for the purpose of furthering investigations
into employees' loyalty by the employing agencies without giving those
organizations an opportunity to examine and meet the information on which
the list is based. One can understand that position. There is a natural
hesitation against any action that may damage any person or organization
through an error that notice and hearing might correct. Such attitude of
tolerance is reflected in § 13 of the Internal Security Act of 1950, 64
Stat. 987, 998. A statutory requirement for notice and administrative
hearing, however, does
not mean the existence of a constitutional requirement.*fn32 |
| [155] | The Executive has authority to gather information concerning the
loyalty of its employees as congressional committees have power to
investigate matters of legislative interest. A public statement of
legislative conclusions on information that later may be found erroneous
may damage those investigated but it is not a civil judgment or a criminal
conviction. Due process does not apply. Questions of propriety of
political action are not for the courts. Information that an employee
associates with or belongs to organizations considered communistic may be
deemed by the Executive a sound reason for making inquiries into the
desirability of the employment of that employee. That is not "guilt by
association." It is a warning to investigate the conduct of the employee
and his opportunity for harm. |
| [156] | While we must be on guard against being moved to conclusions on the
constitutionality of action, legislative or executive, by the
circumstances of the moment, undoubtedly varying conditions call for
differences in procedure. Due process requires appraisal in the light of
conditions confronting the executive during the continuation of the
challenged action.*fn33
Power lies in the executive to guard the Nation from espionage, subversion
and sedition by examining into the loyalty of employees, and due process
in such investigation depends upon the particular exercise of that power
in particular conditions.*fn34
In investigations to determine the purposes of suspected organizations,
the Government should be free to proceed without notice or hearing.
Petitioners will have protection when
steps are taken to punish or enjoin their activities. Where notice and
such administrative hearing as the Code of Federal Regulations prescribes
precede punishment, injunction or discharge, petitioners and their
members' rights to due process are protected. |
| [157] | The judgment of the Court of Appeals should be affirmed. |
| [158] | FOOTNOTES |
| [159] | * Together with No. 7, National Council of American-Soviet Friendship,
Inc. et al. v. McGrath, Attorney General, et al.; and No.
71, International Workers Order, Inc. et al. v. McGrath,
Attorney General, et al., also on certiorari to the same
court. |
|
| |
| Opinion Footnotes | |
|
| |
| [160] | *fn1
E. g., § 9A of the Hatch Political Activity Act, August 2, 1939, 53 Stat.
1148, 5 U. S. C. (1946 ed., Supp. III) § 118j; Smith Act, June 28, 1940,
54 Stat. 670, now 18 U. S. C. (1946 ed., Supp. III) §§ 2385, 2387; Voorhis
Anti-Propaganda Act, October 17, 1940, 54 Stat. 1201, now 18 U. S. C.
(1946 ed., Supp. III) § 2386; many appropriation act riders barring the
use of funds to pay "any person who advocates, or who is a member of an
organization that advocates, the overthrow of the Government of the United
States by force or violence: . . ." such as that at 55 Stat. 42; Exec.
Order No. 9300, "Establishing the Interdepartmental Committee to Consider
Cases of Subversive Activity on the Part of Federal Employees," February
5, 1943, 3 CFR, 1943 Cum. Supp., p. 1252, 8 Fed. Reg. 1701; and Exec.
Order No. 9806, "Establishing the President's Temporary Commission on
Employee Loyalty," November 25, 1946, 3 CFR, 1946 Supp., p. 183, 11 Fed.
Reg. 13863. See also, United States v. Lovett, 328 U.S. 303, 308-313. A later expression of congressional policy
appears in Title I (the Subversive Activities Control Act of 1950) of the
Internal Security Act of 1950 (the McCarran Act) of September 23, 1950, 64
Stat. 987. This requires any "Communist-action organization" or
"Communist-front organization" to register with the Attorney General (§ 7)
and provides for hearings before a newly created "Subversive Activities
Control Board" (§§ 12, 13). |
| [161] | *fn2
"PART V -- STANDARDS "1. The standard for the refusal of employment or
the removal from employment in an executive department or agency on
grounds relating to loyalty shall be that, on all the evidence, reasonable
grounds exist for belief that the person involved is disloyal to the
Government of the United States. "2. Activities and associations of an
applicant or employee which may be considered in connection with the
determination of disloyalty may include one or more of the following: . .
. . "f. Membership in, affiliation with or sympathetic association with
any foreign or domestic organization, association, movement, group or
combination of persons, designated by the Attorney General 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 other persons 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." 3 CFR, 1947 Supp., p. 132, 12 Fed. Reg.
1938. |
| [162] | *fn3
As published in the Federal Register, March 20, 1948, the list includes
two groups. The first group contains none of the present complainants. The
Attorney General explains that that group "is reported as having been
previously named as subversive by the Department of Justice and as having
been previously disseminated among the Government agencies for use in
connection with consideration of employee loyalty under Executive Order
No. 9300, issued February 5, 1943 . . . ." 13 Fed. Reg. 1473. The second
group includes each of the complaining organizations. The Attorney General
lists this group, with the first, under the general heading "Appendix A --
List of Organizations Designated by the Attorney General Pursuant to
Executive Order No. 9835." 5 CFR, 1949, c. II, Pt. 210, pp. 199-201, 13
Fed. Reg. 1471, 1473. He then places the second group under the following
subheading: "Under Part III, section 3, of Executive Order No. 9835, the
following additional organizations are designated: . . . ." Id., at 201,
13 Fed. Reg. 1473. |
| [163] | *fn4
13 Fed. Reg. 6137-6138. This classification was disseminated to all
departments and agencies September 21, 1948, and the classified list was
published October 21, 1948, as an amendment to 5 CFR, 1949, c. II, Pt.
210, pp. 200-202, 203-205. |
| [164] | *fn5
The six classifications were: "Totalitarian," "Fascist," "Communist,"
"Subversive," "Organizations Which Have 'Adopted a Policy of Advocating or
Approving the Commission of Acts of Force and Violence to Deny Others
Their Rights Under the Constitution of the United States,'" and
"Organizations Which 'Seek to Alter the Form of Government of the United
States by Unconstitutional Means.'" 5 CFR, 1949, c. II, Pt. 210, pp.
203-205, 13 Fed. Reg. 6137-6138.
The Attorney General also explained that -- "Applying the elementary
rule of statutory construction, each of these classifications must be
taken to be independent and mutually exclusive of the others. It may well
be that a designated organization, by reason of origin, leadership,
control, purposes, policies or activities, alone or in combination, may
fall within more than one of the specified classifications. In such cases
a reasonable interpretation of the Executive order would seem to require
that designation be predicated upon its dominant characteristics rather
than extended to include all other classifications possible on the basis
of what may be subordinate attributes of the group. In classifying the
designated organizations the Attorney General has been guided by this
policy. Accordingly, it should not be assumed that an organization's
dominant characteristic is its only characteristic." Id., at 203, 13 Fed.
Reg. 6137. |
| [165] | *fn6
The complaint adds that --
"Before the end of the war in Europe, this relief consisted of: (1) the
release and assistance of those of the aforesaid refugees who were in
concentration camps in Vichy France, North Africa and other countries; (2)
transportation and asylum for those of the aforesaid refugees in flight;
(3) direct relief and aid, to those of the aforesaid refugees requiring
help, through the Red Cross and other international agencies. At the
present time, the Joint Anti-Fascist Refugee Committee relief work is
principally devoted to aiding those Spanish Republican refugees, and other
anti-fascist refugees who fought against Franco, located in France and
Mexico." |
| [166] | *fn7
Executive Order No. 9835 purports to rest, in part, upon the authority of
§ 9A of the Hatch Act. 3 CFR, 1947 Supp., p. 129, 12 Fed. Reg.
1935. |
| [167] | *fn8
In this case, unlike the others, the complainant asked that a three-judge
District Court be convened, pursuant to 28 U. S. C. (1946 ed.) § 380a, now
part of 28 U. S. C. (1946 ed., Supp. III) §§ 2281-2284. The District
Court, however, dismissed the complaint without convening such a
court. |
| [168] | *fn9
The complaint also alleges in Part IV:
"8. The purpose, objectives and activities of the Order are in no sense
subversive. The Order is not an organization within the meaning of Part
III, section 3 of Executive Order No. 9835, and it has not adopted a
policy of advocating or approving the commission of acts of force or
violence, or to deny other persons the rights under the Constitution or as
seeking to alter the form of government by unconstitutional means, but on
the contrary, the Order is opposed to the commission of acts of force or
violence, fights against the denial of rights to any person, and is
opposed to the altering of our form of government by any illegal or
unconstitutional means. The Order is dedicated to the democratic ideals
and traditions of the United States and the principles of freedom and
equality embodied in the Constitution." |
| [169] | *fn10
The complaint attacks the constitutionality of § 9A of the Hatch Act but
does not ask for the convening of a three-judge District Court.
In this case, A. L. Drayton, as a member of the order and a civil
employee of the United States, sought permission from the District Court
to intervene under Rule 24 (b) of the Federal Rules of Civil Procedure and
to have added as defendants three members of the Loyalty Review Board of
the Post Office Department. His motion was denied and his appeal from that
denial dismissed. The respondents now advise us that, in a separate
proceeding, he appealed to the Loyalty Review Board from a decision
adverse to his loyalty, with the result that such decision has been
reversed and that he has returned to duty. While he has not withdrawn his
appeal from the denial of his motion to intervene, we find no reason to
review the discretion exercised by the District Court in denying that
motion. Allen Calculators v. National Cash Register Co., 322
U.S. 137; see 4 Moore's Federal Practice (2d ed. 1950)
62-64. |
| [170] | *fn11
The designation of these organizations was not preceded by any
administrative hearing. The organizations received no notice that they
were to be listed, had no opportunity to present evidence on their own
behalf and were not informed of the evidence on which the designations
rest. See Chin Yow v. United States, 208 U.S. 8.
We have noted the following recitals made by the Attorney General in
describing his standard procedure in the preparation of his lists: "After
the issuance of Executive Order No. 9835 by the President, the Department
of Justice compiled all available data with respect to the type of
organization to be dealt with under that order. The investigative reports
of the Federal Bureau of Investigation concerning such organizations were
correlated. Memoranda on each such organization were prepared by attorneys
of the Department. The list of organizations contained herein has been
certified to the Board by the Attorney General on the basis of
recommendations of attorneys of the Department as reviewed by the
Solicitor General, the Assistant Attorneys General, and the Assistant
Solicitor General, and subsequent careful study of all by the Attorney
General." 5 CFR, 1949, c. II, Pt. 210, pp. 199-200, 13 Fed. Reg. 1471.
These recitals, however, relate to the mechanics used rather than to the
appropriateness of the determination or the justification for the
respective designations. They fall short of disclosing that there has been
such an administrative hearing as would offset the admissions of the
specific allegations of the complaints which are inherent in the
respondents' motions to dismiss. See Fed. Rules Civ. Proc., 12 (b) and 56
(c), and Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362, 401-402. We have treated the designation of an
organization by the Attorney General in his list as including his
furnishing of that list to the Loyalty Review Board with knowledge of that
Board's obligation to disseminate it to all departments and agencies of
the Government. |
| [171] | *fn12
As an illustration of the meaning of § 559, the Restatement suggests:
"2. A writes in a letter to B that C is a member of the Ku Klux Klan. B
lives in a community in which a substantial number of the citizens regard
this organization as a discreditable one. A has defamed C." See also,
Spanel v. Pegler, 160 F.2d 619 (C. A. 7th Cir.);
Wright v. Farm Journal, 158 F.2d 976 (C. A. 2d Cir.);
Grant v. Reader's Digest Assn., 151 F.2d 733 (C. A.
2d Cir.); Mencher v. Chesley, 297 N. Y. 94, 75 N. E. 2d 257; Prosser,
Handbook of the Law of Torts, § 91; 171 A. L. R. 709-710,
Note. |
| [172] | *fn13
We do not reach either the validity of the Employees Loyalty Program or
the effect of the respondents' acts in furnishing and disseminating a
comparable list in any instance where such acts are within the authority
purportedly granted by the Executive Order. Cf. Carter v. Carter Coal Co.,
298 U.S. 238, 289-292; United States v. Butler, 297 U.S. 1, 68-78; Linder v. United States, 268 U.S. 5, 17; M'Culloch v. Maryland, 4
Wheat. 316, 423. |
| [173] | *fn14
Rule 17 (b) of the Federal Rules of Civil Procedure gives unincorporated
associations the right to sue in their own names for the enforcement of
rights existing under the Constitution or laws of the United States. And
see Restatement, Torts, § 561 (2) and Comment b thereon. See also, N. Y.
Society for Suppression of Vice v. McFadden Publications, 260 N. Y. 167,
183 N. E. 284; cf. Pullman Co. v. Local Union No. 2928, 152 F.2d
493 (C. A. 7th Cir.). |
| [174] | *fn15
Utah Fuel Co. v. National Bituminous Coal Comm'n, 306 U.S. 56; Shields v. Utah Idaho Central R. Co., 305 U.S.
177; Philadelphia Co. v. Stimson, 223 U.S. 605. |
| [175] | *fn16
United States v. Los Angeles & S. L. R. Co., 273 U.S. 299, 309-310, does not prescribe a contrary course. In that
case we held that the Interstate Commerce Commission order fixing a rate
base could not be attacked by a bill in equity when the base could be
challenged in subsequent proceedings fixing the rate. No comparable
alternative relief is available here. |
|
| |
| Concurrence Footnotes | |
|
| |
| [176] | *fn1
In November 1794, there was introduced in Congress a resolution of public
disapproval of certain "self-created Democratic societies" thought to be
responsible for stirring up the people to insurrection. Madison opposed
the resolution, apparently believing that if it were enacted it would be a
bill of attainder. His views in this regard are reported as follows: "It
is in vain to say that this indiscriminate censure is no punishment. If it
falls on classes, or individuals, it will be a severe punishment. . . . Is
not this proposition, if voted, a vote of attainder?" 4 Annals of Cong.
934 (1794). |
| [177] | *fn2
But compare Madison in Federalist Paper No. 42: "As treason may be
committed against the United States, the authority of the United States
ought to be enabled to punish it. But as new-fangled and artificial
treasons have been the great engines by which violent factions, the
natural offspring of free governments, have usually wreaked their
alternate malignity on each other, the Convention have, with great
judgment, opposed a barrier to this peculiar danger, by inserting a
Constitutional definition of the crime, fixing the proof necessary for
conviction of it, and restraining the Congress, even in punishing it, from
extending the consequences of guilt beyond the person of its
author." |
| [178] | *fn3
One purpose of the Attorney General's blacklist under Executive Order 9835
is for use as evidence against government employees tried for disloyalty
before loyalty boards acting under the same Executive Order. Proof of
membership in a blacklisted organization, or of association with its
members, can weigh heavily against a government employee's loyalty. Thus
an employee may lose his job because of the Attorney General's secret and
ex parte action. This is well illustrated in the case of Bailey v.
Richardson, 341 U.S. 918, decided today by an equally
divided Court. The Loyalty Board's finding against Miss Bailey appears to
have rested in part on her supposed association with such organizations
and in part on secret unsworn hearsay statements communicated to the Board
by anonymous informers. Judge Edgerton's dissenting opinion demonstrates
how the entire loyalty program grossly deprives government employees of
the benefits of constitutional safeguards. Bailey v. Richardson, 86 U. S.
App. D.C. 248, 182 F.2d 46, 66. |
| [179] | *fn4
The Appendix is an illustration of persecution of Protestants by
Catholics. For instances of persecution of Catholics by Protestants, see
my dissenting opinion in American Communications Assn. v. Douds, 339 U.S. 382, 445, particularly notes 3, 4 and 7.
1b The decisions are collected in the dissenting opinion in Larson v.
Domestic & Foreign Corp., 337 U.S. 682, 705. 2b A
statute may of course confer standing even in this situation. Federal
Communications Comm'n v. Sanders Radio Station, 309 U.S. 470; Columbia System v. United States, 316 U.S. 407; cf. Youngstown Co. v. United States, 295 U.S.
476; Stark v. Wickard, 321 U.S. 288. 3b
The Davis & Farnum case held that a subcontractor did not have
standing to enjoin a municipal ordinance which prohibited a construction
project in violation of a right of the owner of the land on which it was
to be built. The Court held that the petitioner had no legal interest in
the controversy, since his interest was only "indirect." 4b Government
action is "final" in the sense here involved when at no future time will
its impact on the petitioner become more conclusive, definite, or
substantial. "Finality" is also employed in a different sense with which
we are not here concerned, in reference to judicial action not subject to
subsequent revisory executive or legislative action. Cf. United States v.
Ferreira, 13 How. 40. |
| [180] | *fn5b
The Court expressed the decision in terms of the nonlegislative character
of the specification. But since the validity of the specification could be
determined in an action for injunction or mandamus against the local
officers, the decision does not establish that final administrative action
is immune from review because it is not legislative in form. |
| [181] | *fn6b
See also decisions treating as "justiciable" bills to enjoin regulations
which create duties immediately enforceable by imposition of penalties.
Assigned Car Cases, 274 U.S. 564; United States v.
Baltimore & O. R. Co., 293 U.S.
454. |
| [182] | *fn7b
In the Los Angeles case the Court thus supported its conclusion that the
bill was not justiciable under general equity powers: "The investigation
was undertaken in aid of the legislative purpose of regulation. In
conducting the investigation, and in making the report, the Commission
performed a service specifically delegated and prescribed by Congress. Its
conclusions, if erroneous in law, may be disregarded. But neither its
utterances, nor its processes of reasoning, as distinguished from its
acts, are a subject for injunction." 273 U.S. at 314-315. Pennsylvania R. Co. v. Labor Board, 261 U.S.
72, was a bill to enjoin the Railroad Labor Board from
publishing that the petitioner had violated its decision. Decisions of the
Board were not legally enforceable; and the Court therefore concluded that
they violated "no legal or equitable right of the complaining company." 261 U.S. at 85. The Court considered at length,
however, the company's argument that the Board had been given no
jurisdiction to decide the particular issue involved. That it found it
necessary to decide this issue against the company on the merits indicates
that it thought a stronger case for standing would have been presented had
the decision been beyond the Board's authority. In Ex parte Williams, 277 U.S. at 271, there is a suggestion that a
litigant may have standing to enjoin a tax assessment when the challenge
is to the validity of the statute authorizing the assessment, although
there would be no standing to challenge the assessment on the ground that
it denied equal protection of the laws. |
| [183] | *fn8b
Compare the decisions which hold that certain executive officers are not
liable in suits for damages for erroneous or even malicious conduct in
office, so long as they are acting within the scope of the authority given
them. Spalding v. Vilas, 161 U.S. 483; Gregoire v.
Biddle, 177 F.2d 579. |
| [184] | *fn9b
A Denver affiliate of the National Council, joined as petitioner in No. 7,
has standing identical with its parent. The individual petitioners in that
suit, however, have as officers of the Council an interest which is too
remote to justify finding the issues justiciable as to them. |
| [185] | *fn10b
The reasonableness of rates has of course been held in part a question for
the courts. Ohio Valley Co. v. Ben Avon Borough, 253 U.S. 287; cf. Chicago, M. & St. P. R. Co. v. Minnesota, 134 U.S. 418. But to the extent that finality is
accorded to the determination of an administrative agency, the Court has
exacted a high standard of procedural fairness. Ohio Bell Tel. Co. v.
Commission, 301 U.S. 292, 304; see I. C. C. v.
Louisville & N. R. Co., 227 U.S. 88; United
States v. Abilene & S. R. Co., 265 U.S. 274; West
Ohio Gas Co. v. Commission (No. 1), 294 U.S. 63;
Railroad Comm'n v. Pacific Gas Co., 302 U.S. 388;
Morgan v. United States, 304 U.S. 1; cf. United
States v. Illinois Central R. Co., 291 U.S.
457. |
| [186] | *fn11b
In Southern R. Co. v. Virginia, 290 U.S. 190, the
Court declared unconstitutional a state officer's ex parte order that a
railroad install an overhead crossing. Compare Monongahela Bridge Co. v.
United States, 216 U.S. 177, in which a comparable
order of the Secretary of War, entered after hearing, was upheld. In
decisions involving local taxation for improvements, the Court has
required that owners be given a hearing on valuation as well as on the
question whether their property has been benefited whenever that
determination has not been legislatively made. See, e. g., Embree v.
Kansas City Road Dist., 240 U.S. 242; cf. Anniston
Mfg. Co. v. Davis, 301 U.S. 337. And although an
individual's interest has been created by an ex parte decision, it may not
be destroyed "without that character of notice and opportunity to be heard
essential to due process of law." United States ex rel. Turner v. Fisher, 222 U.S. 204, 208; Garfield v. Goldsby, 211
U.S. 249. See also Ex parte Robinson, 19 Wall. 505. |
| [187] | *fn12b
The Japanese Immigrant Case, 189 U.S. 86; see Kwock
Jan Fat v. White, 253 U.S. 454; Wong Yang Sung v.
McGrath, 339 U.S. 33, 49; cf. United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537. In Lloyd Sabaudo
Societa v. Elting, 287 U.S. 329, the Court held that
a steamship company required to pay a fine to obtain port clearance for a
ship which had brought a diseased alien to this country was entitled to
determination of the facts by fair procedure. The Court disapproved in
part Oceanic Nav. Co. v. Stranahan, 214 U.S.
320. |
| [188] | *fn13b
In Dismuke v. United States, 297 U.S. 167, 172, the
Court said that "in the absence of compelling language, resort to the
courts to assert a right which the statute creates will be deemed to be
curtailed only so far as authority to decide is given to the
administrative officer. . . . If he is authorized to determine questions
of fact his decision must be accepted unless he exceeds his authority by
making a determination which is arbitrary or capricious or unsupported by
evidence, . . . or by failing to follow a procedure which satisfies
elementary standards of fairness and reasonableness essential to the due
conduct of the proceeding which Congress has authorized . . .
." |
| [189] | *fn14b
Thus, no hearing need be granted on the question whether property is
needed for a public use. Rindge Co. v. Los Angeles, 262 U.S.
700. Cf. Martin v. Mott, 12 Wheat. 19;
United States v. Bush & Co., 310 U.S.
371. |
| [190] | *fn15b
Cf. Norwegian Nitrogen Co. v. United States, 288 U.S. 294. In recent customs legislation Congress has required a
hearing on objections to appraisement. 38 Stat. 187, as amended, 19 U. S.
C. § 1501; see Freund, Administrative Powers over Persons and Property,
163. In numberless other situations Congress has required the essentials
of a hearing. Among those that have come before this Court are removal
orders of the Federal Reserve Board, Board of Governors v. Agnew, 329 U.S. 441; determinations under the Hatch Act,
Oklahoma v. Civil Service Comm'n, 330 U.S. 127;
induction orders under the draft law, Estep v. United States,
327 U.S. 114; minimum price orders of the Secretary
of Agriculture, Stark v. Wickard, 321 U.S. 288; price
control, Yakus v. United States, 321 U.S. 414;
minimum wage determinations, Opp Cotton Mills v. Administrator,
312 U.S. 126; labor relations regulation, Labor Board
v. Mackay Radio Co., 304 U.S. 333; Labor Board v.
Jones & Laughlin Steel Corp., 301 U.S. 1, 47;
Shields v. Utah Idaho R. Co., 305 U.S. 177; Inland
Empire Council v. Millis, 325 U.S. 697. |
| [191] | *fn16b
In 1941 the Attorney General's Committee on Administrative Procedure
reported that it "found in its investigation of the administrative process
few instances of indifference on the part of the agencies to the basic
values which underlie a fair hearing." These values it defined as follows:
"Before adverse action is to be taken by an agency, whether it be denying
privileges to an applicant or bounties to a claimant, before a
cease-and-desist order is issued or privileges or bounties are permanently
withdrawn, before an individual is ordered directly to alter his method of
business, or before discipline is imposed upon him, the individual
immediately concerned should be apprised not only of the contemplated
action with sufficient precision to permit his preparation to resist, but,
before final action, he should be apprised of the evidence and contentions
brought forward against him so that he may meet them. He must be offered a
forum which provides him with an opportunity to bring his own contentions
home to those who will adjudicate the controversy in which he is
concerned. The forum itself must be one which is prepared to receive and
consider all that he offers which is relevant to the controversy." Final
Report, p. 62.
The monographs prepared under the direction of the Committee support
the conclusion that by statutory direction or administrative
interpretation agencies consistently grant at least minimum rights of
hearing. For example, the Walsh-Healey Act is enforceable by the
Government's recovery of liquidated damages and by its withholding further
contracts for a three-year period. Administrative hearings are employed
for all contested action. Monograph of the Attorney General's Committee on
Administrative Procedure, S. Doc. No. 186, 76th Cong., 3d Sess., Part 1,
p. 7. It is generally the practice of the Veterans' Administration to
grant hearings on request of claimants. Id., Part 2, p. 11. Hearings are
granted on request on applications for permits from the Federal Alcohol
Administration, id., Part 5, p. 6, and when licenses granted under the
Grain Standards Act are suspended or revoked, id., Part 7, p. 10. The
Federal Deposit Insurance Corporation determines admissibility of banks to
membership without giving the applicant a hearing or formal opportunity to
contradict the bank examiner's report. However, grounds for disapproval
are reported to the applicant. Id., Part 13, p. 15. War Department
officials grant hearings on applications to construct installations in
navigable waters, except when it is clear that the application should or
should not be granted. S. Doc. No. 10, 77th Cong., 1st Sess., Part 2, p.
7. A 1939 amendment to the social security law requires hearings in the
event a claimant is dissatisfied with the disposition of the case by the
Bureau of Old-Age and Survivors Insurance. Id., Part 3, p. 14. The
Department of the Interior grants hearings in allocating grazing lands,
id., Part 7, pp. 9, 10; in disposing of applications for mineral leases,
except where hearing would serve no useful purpose, id., at 26; and in
determining questions of fact necessary to issuing mining patents, id., at
36. Hearings are frequently employed in investigations under flexible
tariff procedures of the Tariff Commission, id., Part 14, p.
12. |
| [192] | *fn17b
The importance of opportunity to be heard is recognized as well by the
English courts. The leading case is Board of Education v. Rice, [1911] A.
C. 179. Lord Loreburn said in dictum, "In such cases the Board of
Education will have to ascertain the law and also to ascertain the facts.
I need not add that in doing either they must act in good faith and fairly
listen to both sides, for that is a duty lying upon every one who decides
anything. . . . They can obtain information in any way they think best,
always giving a fair opportunity to those who are parties in the
controversy for correcting or contradicting any relevant statement
prejudicial to their view." Id., at 182. This principle has been approved
in a long line of decisions. See Local Government Board v. Arlidge, [1915]
A. C. 120, 132-133; General Medical Council v. Spackman, [1943] A. C. 627;
Errington v. Minister of Health, [1935] 1 K. B. 249; Rex v. Westminster,
[1941] 1 K. B. 53. The Committee on Ministers' Powers reported in 1936
that while in administrative determination a Minister may "depart from the
usual forms of legal procedure or from the common law rules of evidence,
he ought not to depart from or offend against 'natural justice.'" Three
principles of "natural justice" were stated to be that "a man may not be a
judge in his own cause," that "No party ought to be condemned unheard,"
and that "a party is entitled to know the reason for the decision." Report
of Committee on Ministers' Powers, Cmd. 4060, pp. 75-80. |
| [193] | *fn18b
Mr. Justice Holmes made this remark in a letter to Mr. Arthur Garfield
Hays in 1928. See Bent, Justice Oliver Wendell Holmes, 312. |
| [194] | *fn19b
"In a government like ours, entirely popular, care should be taken in
every part of the system, not only to do right, but to satisfy the
community that right is done." 5 The Writings and Speeches of Daniel
Webster, 163. The same thought is reflected in a recent opinion by the
Lord Chief Justice. A witness in a criminal case had been interrogated by
the court in the absence of the defendant. Quashing the conviction, Lord
Goddard said: "That is a matter which cannot possibly be justified. I am
not suggesting for one moment that the justices had any sinister or
improper motive in acting as they did. It may be that they sent for this
officer in the interests of the accused; it may be that the information
which the officer gave was in the interests of the accused. That does not
matter. Time and again this court has said that justice must not only be
done but must manifestly be seen to be done. . . ." Rex v. Justices of
Bodmin, [1947] 1 K. B. 321, 325. |
| [195] | *fn20b
Other evidence is furnished by the State of New York. The Feinberg Law,
comparable in purpose and in its scheme to the Loyalty Order, makes notice
and hearing prerequisite to designation of organizations. See Thompson v.
Wallin, 301 N. Y. 476, 494, 95 N. E. 2d 806, 814-815. |
| [196] | *fn21b
Act of September 23, 1950, §§ 13, 14, 64 Stat. 987, 998, 1001.
1c The Bureau of Internal Revenue canceled the tax-exempt status of
contributions to eight "subversive" organizations shortly after the
Attorney General's list was released. The Bureau's announcement of the
revocation indicated that the listing provided the basis for it. Treasury
Dept. Press Release No. S-613, Feb. 4, 1948, 5 CCH 1948 Fed. Tax Rep.
para. 6075. The New York Feinberg Law, directed at eliminating members of
subversive organizations from employment in the public schools, authorizes
the Board of Regents to utilize the Attorney General's list in drawing up
its own list of subversive organizations. Membership in a listed
organization is prima facie evidence of disqualification. Laws of New
York, 1949, c. 360, para. 3022 (2). The New York Superintendent of
Insurance recently brought an action to dissolve the International Workers
Order, Inc., petitioner in No. 71, on the grounds that it was on the
Attorney General's list. Matter of People of the State of New York, Motion
165, Supreme Court of New York County, Dec. 18, 1950. [See 199 Misc. 941.]
The Maryland Ober Law requires candidates for appointive or elective
office to certify whether they are members of "subversive" organizations.
Laws of Maryland, 1949, c. 86, paras. 10-15. The Commission which drafted
the Act contemplated that the Attorney General's list would be employed in
policing these oaths. Report of Commission on Subversive Activities to
Governor Lane and the Maryland General Assembly, January, 1949, p. 43. 2c
Rule 8 (a), Federal Rules of Civil Procedure. 3c As MR. JUSTICE
FRANKFURTER points out, due process requires no less. But apart from due
process in the constitutional sense is the power of the Court to prescribe
standards of conduct and procedure for inferior federal courts and
agencies. See McNabb v. United States, 318 U.S. 332.
4c The International Tribunal tried Nazi organizations to determine
whether they were "criminal." Art. 9, Charter of the International
Military Tribunal, Nazi Conspiracy and Aggression, Vol. 1, Office of U.S.
Chief Counsel, U.S. Government Printing Office (1946) p. 6. That
procedure, unlike the present one, provided that accused organizations
might defend themselves against that charge. Ibid. But the finding of
guilt as to an organization was binding on an individual who was later
brought to trial for the crime of membership in a criminal organization.
Article 10 provided: "In cases where a group or organization is declared
criminal by the Tribunal, the competent national authority of any
Signatory shall have the right to bring individuals to trial for
membership therein before national, military or occupation courts. In any
such case the criminal nature of the group or organization is considered
proved and shall not be questioned." Id. 5c Barth, The Loyalty of Free Men
(1951), p. 109. 6c "The oath to be taken by any person elected or
appointed to any office of honor or profit either in the civil, military,
or naval service, except the President of the United States shall be as
follows: 'I, A B, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies, foreign
and domestic; that I will bear true faith and allegiance to the same; that
I take this obligation freely, without any mental reservation or purpose
of evasion; and that I will well and faithfully discharge the duties of
the office on which I am about to enter. So help me God.'" 23 Stat. 22, R.
S. § 1757, 5 U. S. C. § 16. And see Act of Sept. 6, 1950, Pub. L. No. 759,
§ 1209, 64 Stat. 595, 764. 7c See the address by Benjamin V. Cohen, 96
Cong. Rec. A785, A786. 8c 448 H. C. Deb. 1703 et seq., 3418 et seq. (5th
Ser. 1947-1948). The meticulous care with which this small select group is
handled is reflected in the letter of the Prime Minister, dated Dec. 1,
1948, reporting on the purge of communists and fascists from the civil
service. 459 H. C. Deb. 830 (5th Ser. 1948-1949). The number of cases
considered by the end of April, 1950, was 86, classified as follows:
Transferred to nonsecret departments 32 Resigned 5 Exonerated and
reinstated 19 Dismissed (including one Fascist) 7 Retired for health
reasons before completion of investigations 1 On special leave, either sub
judice or confirmed Communists awaiting transfer or dismissal 22 86 See
British Information Services, Reference Division, April, 1950. 9c The
Civil Service Commission reports as of February, 1951, the following
statistics relating to adjudications of loyalty under Executive Order No.
9835 of March 21, 1947: Total cases received by Loyalty Boards 14,910
Less: cases where employee left the service during in] vestigations 1,722
Cases received for adjudication 13,188 Less: cases where employee
thereafter resigned 1,331 field investigation reports pending in loyalty
boards 1,060 cases in Department of the Army 1,304 Cases adjudicated 9,493
Eligible determination 8,964 Ineligible, excluding 20 cases on review 529
Disposition of ineligibles: Dismissed 307 Restored after appeal 197
Remanded after appeal 19 On appeal 26. 1d United States v. Morton Salt
Co., 338 U.S. 632, 652. 2d "Boards . . . should not
enter upon any evidential investigation of the nature of any of the
organizations identified in the Attorney General's list, for the purpose
of attacking, contradicting, or modifying the controlling conclusion
reached by the Attorney General in such list. . . . The Board should
permit no evidence or argument before it on the point." Loyalty Review
Board, Memorandum No. 2, March 9, 1948. 3d Eberlein v. United States, 257 U.S. 82; Keim v. United States, 177
U.S. 290. This is true, although reasons stated are alleged to
be false or the officer taking the action is alleged to have acted in a
biased, prejudicial and unfair manner. Golding v. United States, 78 Ct.
Cl. 682, 685; cert. denied, 292 U.S. 643. 4d "A total
of 3,166 Government employees have quit or have been discharged under
President Truman's loyalty program since it began March 21, 1947, the
Loyalty Review Board reported today. "Of these, 294 actually were
discharged for disloyalty. The remainder, 2,872, quit while under
investigation and might or might not have been found disloyal." New York
Times, January 16, 1951. 5d 307 U.S. 325, 349. That
was an action to mandamus the Secretary of State to issue a passport, to
which it was conceded Miss Elg had no legal right, its issuance being
wholly within Executive discretion which the courts would not attempt to
control. Chief Justice Hughes pointed out, however, that its denial to
Miss Elg was not grounded in the Secretary's general discretion but
"solely on the ground that she had lost her native born American
citizenship." Finding that ground untenable, this Court directed its
decree against the Secretary. The Secretary might say she would get no
passport, but he could not, for unjustifiable reasons, say she was
ineligible for one. 6d Bailey v. Richardson, 341 U.S. 918. |
|
| |
| Dissent Footnotes | |
|
| |
| [197] | *fn1
5 U. S. C. (Supp. II) § 118j:
"(1) It shall be unlawful for any person employed in any capacity by
any agency of the Federal Government, whose compensation, or any part
thereof, is paid from funds authorized or appropriated by any Act of
Congress, to have membership in any political party or organization which
advocates the overthrow of our constitutional form of government in the
United States. "(2) Any person violating the provisions of this section
shall be immediately removed from the position or office held by him, and
thereafter no part of the funds appropriated by any Act of Congress for
such position or office shall be used to pay the compensation of such
persons." |
| [198] | *fn2
See 12 Fed. Reg. 1938, 5 CFR § 210.11 (a):
"(a) Standard. The standard for the refusal of employment or the
removal from employment in an Executive department or agency on grounds
relating to loyalty shall be that, on all the evidence, reasonable grounds
exist for belief that the person involved is disloyal to the Government of
the United States. The panel shall reach its decision on consideration of
the complete file, arguments, brief and testimony presented to it. "(b)
Activities and associations. Among the activities and associations of an
applicant or employee which may be considered in connection with the
determination of disloyalty may be one or more of the following: . . . .
"(6) Membership in, affiliation with or sympathetic association with any
foreign or domestic organization, association, movement, group or
combination of persons, designated by the Attorney General 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 other persons 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." |
| [199] | *fn3
"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.
"a. The Loyalty Review Board shall disseminate such information to all
departments and agencies." |
| [200] | *fn4
5 CFR § 210.11 (b) (6):
"Such membership, affiliation or sympathetic association is simply one
piece of evidence which may or may not be helpful in arriving at a
conclusion as to the action which is to be taken in a particular case. . .
." See 5 CFR § 200.1. 5 13 Fed. Reg. 1471: "After the issuance of
Executive Order No. 9835 by the President, the Department of Justice
compiled all available data with respect to the type of organization to be
dealt with under that order. The investigative reports of the Federal
Bureau of Investigation concerning such organizations were correlated.
Memoranda on each such organization were prepared by attorneys of the
Department. The list of organizations contained herein has been certified
to the Board by the Attorney General on the basis of recommendations of
attorneys of the Department as reviewed by the Solicitor General, the
Assistant Attorneys General, and the Assistant Solicitor General, and
subsequent careful study of all by the Attorney General." Cf. United
States v. Chemical Foundation, 272 U.S. 1, 14; Lewis
v. United States, 279 U.S. 63, 73. |
| [201] | *fn6
Cf. Nash v. United States, 229 U.S. 373, 377; N. Y.
Central Securities Corp. v. United States, 287 U.S. 12, 24; United States v. Petrillo, 332 U.S. 1. |
| [202] | *fn7
5 CFR § 210.11 (b):
"(1) Sabotage, espionage, or attempts or preparations therefor, or
knowingly associating with spies or saboteurs; "(2) Treason or sedition or
advocacy thereof; "(3) Advocacy of revolution or force or violence to
alter the constitutional form of government of the United States; "(4)
Intentional, unauthorized disclosure to any person under circumstances
which may indicate disloyalty to the United States, of documents or
information of a confidential or non-public character obtained by the
person making the disclosure as a result of his employment by the
Government of the United States, or prior to his employment; "(5)
Performing or attempting to perform his duties, or otherwise acting, so as
to serve the interests of another government in preference to the
interests of the United States; . . . ." See also n. 2,
supra. |
| [203] | *fn8
In Schneiderman v. United States, 320 U.S. 118, 148,
158, a review of the evidence of communist theory upon the use of force
and violence presented in that record led this Court to hold that the
evidence concerning communist teaching upon force and violence was not so
"clear, unequivocal and convincing" as to justify deportation of that
defendant. We refused specifically to pass upon the attitude of communism
toward force and violence. 320 U.S. at 148,
158. |
| [204] | *fn9
The Russian Imperial Government fell quickly in February 1917, because its
power had been sapped by bureaucratic rapacity and war losses as well as
by communist revolutionary doctrines. Even under those circumstances,
there are said to have been more than a thousand casualties in St.
Petersburg. I Trotsky, History of the Russian Revolution, 141.
The doctrine and practices of communism clearly enough teach the use of
force against an existing noncommunist government to justify an official
of our Government taking steps to protect governmental personnel by
screening individuals to determine whether they accept force and violence
as a political weapon. From the last paragraphs of the Communist Manifesto
to the seizure of the last satellite, force and violence appears as a
communist method for gaining control. Lenin, Collected Works (1930), Vol.
XVIII, pp. 279-280; Trotsky, op. cit., 106, 120, 144, 151; Lenin, The
State and Revolution, August, 1917, Foreign Languages Publishing House,
Moscow (1949), 28, 30, 33. Translations furnished me indicate the same
attitude on the part of Stalin. Collected Works, Vol. I, pp. 131-137,
185-205, 241-246; Vol. III, pp. 367-370. And see Leites, The Operational
Code of the Politburo (1950), c. xiii, "Violence." See § 2 of the Internal
Security Act of 1950, 64 Stat. 987. |
| [205] | *fn10
In the Refugee Committee complaint unconstitutionality of the designation
was predicated upon repugnancy:
"1) It is repugnant to the Constitution of the United States as a
deprivation of freedom of speech, of the press, and of assembly and
association in violation of the First Amendment. "2) . . . as a
deprivation of the fundamental rights of the people of the United States
reserved to the people of the United States by the Ninth and Tenth
Amendments. "3) . . . as a deprivation of liberty and property without due
process of law in violation of the Fifth Amendment." In the Council case,
it was predicated upon a lack of "any advance notice" and the Attorney
General's acting "without making 'an appropriate investigation and
determination,' as required" by the Order. It was said: "The aforesaid
actions of the defendants have been arbitrary, capricious, contrary to
law, in excess of statutory right and authority. Such actions have
violated the rights of the plaintiffs guaranteed by the First and Fifth
Amendments to the Constitution and are contrary to the Ninth and Tenth
Amendments." The same general allegations of violations of the Due Process
Clause and the First Amendment appear in No. 71, International Workers
Order, Inc. |
| [206] | *fn11
Nortz v. United States, 294 U.S. 317, 324; Pierce Oil
Corp. v. City of Hope, 248 U.S. 498; Straus v.
Foxworth, 231 U.S. 162, 168. |
| [207] | *fn12
Bell v. Hood, 327 U.S. 678, 681, 684; Larson v.
Domestic & Foreign Corp., 337 U.S. 682,
690. |
| [208] | *fn13
United Public Workers v. Mitchell, 330 U.S. 75, 95,
and cases cited; American Communications Assn. v. Douds, 339
U.S. 382, 394-399; Feiner v. New York, 340 U.S. 315, 320-321. |
| [209] | *fn14
The fairness of that designation is considered under the next
point. |
| [210] | *fn15
Perhaps they would insist not only on notice that an investigation is to
be had but on an opportunity to be present and to have counsel, to
cross-examine, to object to the introduction of evidence, to argue and to
have judicial review. Cf. Hiatt v. Compagna, 178 F.2d 42, affirmed by an equally divided court, 340 U.S.
880. An injunction against listing could have delayed
administration until today.
The statutory requirement for a hearing explains the statement in
Morgan v. United States, 304 U.S. 1, 14, that "in
administrative proceedings of a quasi-judicial character the liberty and
property of the citizen shall be protected by the rudimentary requirements
of fair play. These demand 'a fair and open hearing,' -- essential alike
to the legal validity of the administrative regulation and to the
maintenance of public confidence in the value and soundness of this
important governmental process. Such a hearing has been described as an
'inexorable safeguard.'" This hearing was a rate determination proceeding.
See the statement in the first Morgan case, 298 U.S. 468, 480: "That duty is widely different from ordinary
executive action. It is a duty which carries with it fundamental
procedural requirements. There must be a full hearing. There must be
evidence adequate to support pertinent and necessary findings of fact." No
enforceable rights to a hearing exist in an alien seeking admission to the
United States. United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 544; Ekiu v. United States, 142 U.S. 651. To the extent that Ng Fung Ho v. White, 259 U.S.
276, requires a hearing, it is on the issue of alienage, and
not of admissibility. |
| [211] | *fn16
Of course, notice to petitioners that an investigation was to be had to
determine whether they had seditious purposes would be useless without
opportunity for an administrative hearing. That is the effect of
petitioners' argument. |
| [212] | *fn17
For example, Shields v. Utah Idaho R. Co., 305 U.S. 177, interpreted a statutory requirement for determination by
the Interstate Commerce Commission of the subjection of the railroad to
the Railway Labor Act to necessitate procedural due process, "the hearing
of evidence and argument." We held, p. 183, that equity had cognizance of
an objection to the proceeding, as "arbitrary and capricious," p. 185,
because failure to post a prescribed notice is punishable as a crime. A
"right" was asserted.
Reliance on Interstate Commerce Comm'n v. Louisville & N. R. Co., 227 U.S. 88, is misplaced. The statute gave a right
to a full hearing, p. 91. United States v. Lovett, 328 U.S. 303, 316, protected an employee against what this Court held
was legislative decree of exclusion from government employment without
trial. Columbia Broadcasting System v. United States, 316 U.S.
407, 418, depends upon this Court's ruling that the regulation
there subjected to attack required the Federal Communications Commission
to reject applications and cancel outstanding licenses "on the grounds
specified in the regulations without more." |
| [213] | *fn18
Duke v. United States, 90 F.2d 840; United States v.
Central Supply Assn., 34 F.Supp. 241. |
| [214] |