Flemming v. Nestor/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

Appellee came to this country from Bulgaria in 1913 and was employed, so as to be covered by the Social Security Act, from December 1936 to January 1955-a period of 19 years. He became eligible for retirement and for Social Security benefits in November 1955 and was awarded $55.60 per momth. In July 1956 he was deported for having been a member of the Communist Party from 1933 to 1939. Pursuant to a law, enacted September 1, 1954, he was thereupon denied payment of further Social Security Benefits.

This 1954 law seems to me to be a classic example of a bill of attainder, which Art. I, § 9 of the Constitution prohibits Congress from enacting. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Cummings v. Missouri, 4 Wall. 277, 323, 18 L.Ed. 356.

In the old days punishment was meted out to a creditor or rival or enemy by sending him to the gallows. But as recently stated by Irving Brant,

' * *  * By smiting a man day after day with slanderous words,      by taking away his opportunity to earn a living, you can      drain the blood from his veins without even scratching his      skin.

'Today's bill of attainder is broader than the classic form,     and not so tall and sharp. There is mental in place of     physical torture, and confiscation of tomorrow's bread and      butter instead of yesterday's land and gold. What is     perfectly clear is that hate, fear and prejudice play the      same role today, in the destruction of human rights in      America that they did in England when a frenzied mob of      lords, judges, bishops and shoemakers turned the Titus Oates      blacklist into a hangman's record. Hate, jealousy and spite     continue to fill the legislative attainder lists just as they      did in the Irish Parliament of ex-King James.' Bills of attainder, when they imposed punishment less than death, were bills of pains and penalties and equally beyond the constitutional power of Congress. Cummings v. Missouri, supra, 4 Wall. at page 323.

Punishment in the sense of a bill of attainder includes the 'deprivation or suspension of political or civil rights.' Cummings v. Missouri, supra, at page 322. In that case it was barring a priest from practicing his profession. In ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, it was excluding a man from practicing law in the federal courts. In United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, it was cutting off employees' compensation and barring them permanently from government service. Cutting off a person's livelihood by denying him accrued social benefits-part of his property interests-is no less a punishment. Here, as in the other cases cited, the penalty exacted has one of the classic purposes of punishment -'to reprimand the wrongdoer, to deter others.' Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 595, 2 L.Ed.2d 630.

Social Security payments are not gratuities. They are products of a contributory system, the funds being raised by payment from employees and employers alike, or in case of self-employed persons, by the individual alone. See Social Security Board v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 640, 90 L.Ed. 718. The funds are placed in the Federal Old-Age and Survivors Insurance Trust Fund, 42 U.S.C. § 401(a), 42 U.S.C.A. § 401(a); and only those who contribute to the fund are entitled to its benefits, the amount of benefits being related to the amount of contributions made. See Stark, Social Security: Its Importance to Lawyers, 43 A.B.A.J. 319, 321 (1957). As the late Senator George, long Chairman of the Senate Finance Committee and one of the authors of the Social Security system, said:

'There has developed through the years a feeling both in and     out of Congress that the contributory social insurance      principle fits our times-that it serves a vital need that      cannot be as well served otherwise. It comports better than     any substitute we have discovered with the American concept      that free men want to earn their security and not ask for      doles-that what is due as a matter of earned right is far      better than a gratuity. * *  *

'Social security is not a handout; it is not charity; it is     not relief. It is an earned right based upon the contributions and earnings of the individual. As an earned     right, the individual is eligible to receive his benefit in      dignity and self-respect.' 102 Cong.Rec. 15110.

Social Security benefits have rightly come to be regarded as basic financial protection against the hazards of old age and disability. As stated in a recent House Report:

'The old-age and survivors insurance system is the basic     program which provides protection for America's families      against the loss of earned income upon the retirement or      death of the family provider. The program provides benefits     related to earned income and such benefits are paid for by      the contributions made with respect to persons working in      covered occupations.' H.R.Rep. No. 1189, 84th Cong., 1st     Sess. 2.

Congress could provide that only people resident here could get Social Security benefits. Yet both the House and the Senate rejected any residence requirements. See H.R.Rep. No. 1698, 83d Cong., 2d Sess. 24-25; S.Rep. No. 1987, 83d Cong., 2d Sess. 23. Congress concededly might amend the program to meet new conditions. But may it take away Social Security benefits from one person or from a group of persons for vindictive reasons? Could Congress on deporting an alien for having been a Communist confiscate his home, appropriate his savings accounts, and thus send him out of the country penniless? I think not. Any such Act would be a bill of attainder. The difference, as I see it, between that case and this is one merely of degree. Social Security benefits, made up in part of this alien's own earnings, are taken from him because he once was a Communist.

The view that § 202(n), with which we now deal, imposes a penalty was taken by Secretary Folsom, appellant's predecessor, when opposing enlargement of the category of people to be denied benefits of Social Security, e.g., those convicted of treason and sedition. He said:

'Because the deprivation of benefits as provided in the     amendment is in the nature of a penalty and based on      considerations foreign to the objectives and provisions of      the oldage and survivors insurance program, the amendment may      well serve as a precedent for extension of similar provisions      to other public programs and to other crimes which, while      perhaps different in degree, are difficult to distinguish in      principle.

'The present law recognizes only three narrowly limited     exceptions to the basic principle that benefits are paid      without regard to the attitudes, opinions, behavior, or      personal characteristics of the individual *  *  * .' Hearings      Senate Finance Committee on Social Security Amendments of      1955, 84th Cong., 2d Sess., 1319.

The Committee Reports, though meagre, support Secretary Folsom in that characterization of § 202(n). The House Report tersely stated that termination of the benefits would apply to those persons who were deported 'because of illegal entry, conviction of a crime, or subversive activity.' H.R.Rep. No. 1698, 83d Cong., 2d Sess. 25. The aim and purpose are clear-to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology. That is a modern version of the bill of attainder-as plain, as direct, as effective as those which religious passions once loosed in England and which later were employed against the Tories here. I would affirm this judgment.