Bryson v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

This conviction was founded on an indictment which in the words of 18 U.S.C. § 1001 makes it a crime to file 'any false, fictitious or fraudulent statements or representations' in any matter 'within the jurisdiction' of the National Labor Relations Board. Former § 9(h) of the Labor Management Relations Act, 1947, 29 U.S.C. § 159(h) (1958 ed.), barred a union from using the services of the Board unless and until each of the union's officers had filed his affidavit that he was neither a member of nor affiliated with the Communist Party. The basic question in this proceeding under 28 U.S.C. § 2255 is whether constitutionally speaking it was 'within the jurisdiction' of the Board to require the filing of those affidavits.

Obviously the power of Congress to authorize prosecution for crimes of this character must rest on an interference with or obstruction of some 'lawful' function of the agency in question. See United States v. Johnson, 383 U.S. 169, 172, 86 S.Ct. 749, 751, 15 L.Ed.2d 681. Apart from constitutional problems, the question of what is 'within the jurisdiction' of an agency should be construed in a restrictive, not an expansive, way. The Court of Appeals for the Eighth Circuit so hold in Friedman v. United States, 374 F.2d 363, when it ruled that telling a falsehood to the FBI in its role as 'investigator' was not 'within the jurisdiction' of that agency in the sense of § 1001. If it were, then telling lies to agencies would carry heavier penalties than committing perjury in court. 374 F.2d at 367.

The words 'within the jurisdiction' must be read not only with the commonsense approach of Friedman but also in light of our constitutional regime. One of many mandates imposed on Congress by the Constitution is the prohibition against bills of attainder. Art. I, § 9.

It was said in American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, that § 9(h) was not a bill of attainder. The opinion was by Mr. Chief Justice Vinson and it was called an 'opinion of the Court.' It was, however, a six-man Court and the ruling on the bill of attainder point was in Part VII of the opinion. Mr. Justice Frankfurter concurred in the opinion 'except as to Part VII.' Id., at 415, 70 S.Ct., at 692. Mr. Justice Jackson concurred in part and dissented in part. Id., at 422, 70 S.Ct., at 696. Section 9(h) was vulnerable in his view because it proscribed opinion or belief which had not manifested itself 'in any overt act.' Id., at 436, 70 S.Ct., at 703. He siad:

'Attempts of the courts to fathom modern political     meditations of an accused would be as futile and mischievous      as the efforts in the infamous heresy trials of old to fathom      religious beliefs.' Id., at 437, 70 S.Ct., at 703.

'(E)fforts to weed erroneous beliefs from the minds of men     have always been supported by the argument which the Court      invokes today, that beliefs are springs to action, that evil      thoughts tend to become forbidden deeds. Probably so. But if     power to forbid acts includes power to forbid contemplating      them, then the power of government over beliefs is as      unlimited as its power over conduct and the way is open to      force disclosure of attitudes on all manner of social,      economic, moral and political issues.' Id., at 438, 70 S.Ct.,      at 703.

From this opinion I conclude that Mr. Justice Jackson did not reach the bill of attainder point in Mr. Chief Justice Vinson's opinion. And Mr. Justice Black dissented. Id., at 445, 70 S.Ct., at 707.

So I conclude that no more than three members of the Court (Vinson, C.J., and Reed and Burton, JJ.) ever held that § 9(h) was constitutional against the challenge that it was a bill of attainder.

In United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, we held that the successor of § 9(h), § 504 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 504, was a bill of attainder. It made it a crime for a member of the Communist Party to serve as an officer or employee (except in clerical or custodial positions) of a labor union. The Vinson opinion in Douds upheld § 9(h) on the basis that it was 'intended to prevent future action rather than to punish past action.' 339 U.S., at 414, 70 S.Ct., at 692. In Brown, it was likewise argued that the statute there involved was 'preventive rather than retributive in purpose.' 381 U.S., at 457, 85 S.Ct., at 1719. That view was rejected. The question, we said, was whether § 504 inflicted 'punishment' which, we pointed out, 'serves several purposes; retributive, rehabilitative, deterrent and preventive.' Id., at 458, 85 S.Ct., at 1720. The dissenters Mr. Justice Clark, Mr. Justice Harlan, Mr. Justice Stewart, and Mr. Justice White-concluded that Douds was 'obviously overruled.' Id., at 464-465, 85 S.Ct., at 1723. Whatever may be said technically about any remaining vitality of the Douds case, it obviously belongs to a discredited regime, though, like Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, it has never been officially overruled.

The rule invoked by the Court to deny petitioner the opportunity to challenge that bill of attainder in this proceeding is, as stated by Mr. Justice Black in his separate opinion in Dennis v. United States, 384 U.S., 855, 878, 86 S.Ct. 1840, 1853, 16 L.Ed.2d 973, 'a new court-made doctrine.' As he pointed out in that opinion, the prior decision of this Court relied on to deny the defense of unconstitutionality of a federal law were instances of false claims for benefits to which the complainant had 'no possible right whether the statute was constitutional or unconstitutional.' Ibid.

In this case, however, Congress installed an unconstitutional barrier to receipt of the benefits administered by the Labor Board. Since § 9(h), in light of Brown, was plainly unconstitutional, petitioner's union was entitled to those services without the filing of any affidavit. Therefore, unlike prior cases, the United States had been deprived of nothing and defrauded of nothing by the filing of any affidavit or other form of claim.

I would reverse the judgment below.