Cole v. Young/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.

Believing that the Court should not strike down the President's Executive Order on employee security by an interpretation that admittedly 'rests upon a chain of inferences,' we cannot agree to the judgment of reversal. In our opinion, the clear purpose of the Congress in enacting the Summary Suspension Act, 64 Stat. 476, is frustrated, and the Court's opinion raises a serious question of presidential power under Article II of the Constitution which it leaves entirely undecided.

Petitioner, a food and drug inspector employed in the Department of Health, Education and Welfare, was charged with having 'established and * *  * continued a close association with individuals reliably reported to be Communists.' It was further charged that he had 'maintained a continued and sympathetic association with the Nature Friends of America, which organization' is on the Attorney General's list; and 'by (his) own admission, donated funds' to that group, contributed services to it and attended social gatherings of the same. Petitioner did not answer the charges but replied that they constituted an invasion of his private rights of association. Although advised that he could have a hearing, he requested none, and was thereafter dismissed. The Secretary made a formal determination that petitioner's continued employment was not 'clearly consistent with the interests of the national security,' a determination entrusted to her by the Suspension Act. Although 'such determination by the agency head concerned shall be conclusive and final' under the Act, the Court, by its interpretation, finds 'that not all positions in the Government are affected with the 'national security' as that term is used * *  * (and) that no determination has been made that petitioner's position was one in which he could adversely affect the 'national security." It, therefore, strikes down the President's Executive Order because 'the standard prescribed by (it) and applied by the Secretary is not in conformity with the Act.' This compels the restoration of the petitioner to Government service. We cannot agree.

We have read the Act over and over again, but find no ground on which to infer such an interpretation. It flies directly in the face of the language of the Act and the legislative history. The plain words of § 1 make the Act applicable to 'any civilian officer or employee', not, as the majority would have it, 'any civilian officer or employee in a sensitive position.' The Court would require not only a finding that a particular person is subversive, but also that he occupies a sensitive job. Obviously this might leave the Government honeycombed with subversive employees.

Although the Court assumes the validity of the President's action under § 3 extending the coverage of the Act to all Government agencies, the reasoning of the opinion makes that extension a fortiori unauthorized. The limitation the Court imposes deprives the extension of any force, despite the fact that § 3 has no limiting words whatever. And this is done in the face of legislative history showing that Congress clearly contemplated that the coverage might be extended without limitation 'to such other departments and agencies of the Government' that the President thought advisable. Senator Byrd commented 'Section 3 gives the President the right to classify every agency as a sensitive agency * *  *. He could take the whole Government.' And Senator Chapman remarked, 'I do not see why the whole Government is not sensitive as far as that is concerned.' Hearings before the Senate Committee on Armed Services, 81st Cong., 2d Sess., on H.R. 7439, pp. 15-16. Also, Congressman Holifield, during debates in the House, stated that the Act 'applies potentially to every executive agency, not only the sensitive ones. * *  * There is no distinction made in the bill between so-called sensitive employees, that is, employees who have access to confidential and secret information, and the regular employees.' 96 Cong.Rec. 10023-10024.

The President believed that the national security required the extension of the coverage of the Act to all employees. That was his judgment, not ours. He was given that power, not us. By this action the Court so interprets the Act as to intrude itself into presidential policy making. The Court should not do this, especially here where Congress has ratified the President's action. As required by the Act the Executive Order was reported to the Congress and soon thereafter it came up for discussion and action in both the House and the Senate. It was the sense of the Congress at that time that the Order properly carried out the standards of the Act and was in all respects an expression of the congressional will. 99 Cong.Rec. 4511-4543, 5818-5990. In addition, Congress has made appropriations each subsequent year for investigations, etc., under its provisions. This in itself 'stands as confirmation and ratification of the action of the Chief Executive.' Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375.

The President having expended the coverage of the Act to the Department of Health, Education, and Welfare, it became the duty of the Secretary to dismiss any employee whenever she deemed it 'necessary or advisable in the interests of national security.' She made such a finding. It is implicit in her order of dismissal. Her 'evaluation as to the effect which continuance of (petitioner's) employment might have upon the 'national security" has been made. She decided that he should be dismissed. Under the Act this determination is 'conclusive and final.'

There is still another reason why we should sustain the President's Executive Order. By striking it down, the Court raises a question as to the constitutional power of the President to authorize dismissal of executive employees whose further employment he believes to be inconsistent with national security. This power might arise from the grant of executive power in Article II of the Constitution, and not from the Congress. The opinion of the majority avoids this important point which must be faced by any decision holding an Executive Order inoperative. It is the policy of the Court to avoid constitutional questions where possible, Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 793, 99 L.Ed. 1129, not to create them.

We believe the Court's order has stricken down the most effective weapon against subversive activity available to the Government. It is not realistic to say that the Government can be protected merely by applying the Act to sensitive jobs. One never knows just which job is sensitive. The janitor might prove to be in as important a spot securitywise as the top employee in the building. The Congress decided that the most effective way to protect the Government was through the procedures laid down in the Act. The President implemented its purposes by requiring that Government employment be 'clearly consistent' with the national security. The President's standard is 'complete and unswerving loyalty' not only in sensitive places but throughout the Government. The President requires, and every employee should give, no less. This is all that the Act and the Order require. They should not be subverted by the technical interpretation the majority places on them today. We would affirm.