Greene v. McElroy/Opinion of the Court

This case involves the validity of the Government's revocation of security clearance granted to petitioner, an aeronautical engineer employed by a private manufacturer which produced goods for the armed services. Petitioner was discharged from his employment solely as a consequence of the revocation because his access to classified information was required by the nature of his job. After his discharge, petitioner was unable to secure employment as an aeronautical engineer and for all practical purposes that field of endeavor is now closed to him.

Petitioner was vice president and general manager of Engineering and Research Corporation (ERCO), a business devoted primarily to developing and manufacturing various mechanical and electronic products. He began this employment in 1937 soon after his graduation from the Guggenheim School of Aeronautics and, except for a brief leave of absence, he stayed with the firm until his discharge in 1953. He was first employed as a junior engineer and draftsman. Because of the excellence of his work he eventually became a chief executive officer of the firm. During his career with ERCO, he was credited with the expedited development of a complicated electronic flight simulator and with the design of a rocket launcher, both of which were produced by ERCO and long used by the Navy.

During the post-World War II period, petitioner was given security clearances on three occasions. These were required by the nature of the projects undertaken by ERCO for the various armed services. On November 21, 1951, however, the Army-Navy-Air Force Personnel Security Board (PSB) advised ERCO that the company's clearances for access to classified information were in jeopardy because of a tentative decision to deny petitioner access to classified Department of Defense information and to revoke his clearance for security reasons. ERCO was invited to respond to this notification. The corporation, through its president, informed PSB that petitioner had taken an extended furlough due to the Board's action. The ERCO executive also stated that in his opinion petitioner was a loyal and discreet United States citizen and that his absence denied to the firm the services of an outstanding engineer and administrative executive. On December 11, 1951, petitioner was informed by the Board that it had 'decided that access by you to contract work and information (at ERCO) * *  * would be inimical to the best interests of the United States.' Accordingly, the PSB revoked petitioner's clearancs. He was informed that he could seek a hearing before the Industrial Employment Review Board (IERB), and he took this course. Prior to the hearing, petitioner received a letter informing him that the PSB action was based on information indicating that between 1943 and 1947 he had associated with Communists, visited officials of the Russian Embassy, and attended a dinner given by an allegedly Communist Front organization.

On January 23, 1952, petitioner, with counsel, appeared before the IERB. He was questioned in detail concerning his background and the information disclosed in the IERB letter. In response to numerous and searching ues tions he explained in substance that specific 'suspect' persons with whom he was said to have associated were actually friends of his ex-wife. He explained in some detail that during his first marriage, which lasted from 1942 through 1947, his then wife held views with which he did not concur and was friendly with associates and other persons with whom he had little in common. He stated that these basic disagreements were the prime reasons that the marriage ended in failure. He attributed to his then wife his attendance at the dinner, his membership in a bookshop association which purportedly was a 'front organization, and the presence in his home of 'Communist' publications. He denied categorically that he had ever been a 'Communist' and he spoke at length about his dislike for 'a theory of Government which has for its object the common ownership of property.' Lastly, petitioner explained that his visits to persons in various foreign embassies (including the Russian Embassy) were made in connection with his attempts to sell ERCO's products to their Governments. Petitioner's witnesses, who included top-level executives of ERCO and a number of military officers who had worked with petitioner in the past, corroborated many of petitioner's statements and testified in substance that he was a loyal and discreet citizen. These top-level executives of ERCO, whose right to clearance was never challenged, corroborated petitioner's testimony concerning his reasons for visiting the Russian Embassy.

The Government presented no witnesses. It was obvious, however, from the questions posed to petitioner and to his witnesses, that the Board relied on confidential reports which were never made available to petitioner. These reports apparently were compilations of statements taken from various persons contacted by an investigatory agency. Petitioner had no opportunity to confront and question persons whose statements reflected adversely on him or to confront the government investigators who took their statements. Moreover, it seemed evident that the Board itself had never questioned the investigators and had never seen those persons whose statements were the subject of their reports.

On January 29, 1952, the IERB, on the basis of the testimony given at the hearing and the confidential reports, reversed the action of the PSB and informed petitioner and ERCO that petitioner was authorized to work on Secret contract work.

On March 27, 1953, the Secretary of Defense abolished the PSB and IERB and directed the Secretaries of the three armed services to establish regional Industrial Personnel Security Boards to coordinate the industrial security program. The Secretaries were also instructed to establish uniform standards, criteria, and procedures. Cases pending before the PSB and IERB were referred to these new Boards. During the interim period between the abolishment of the old program and the implementation of the new one, the Secretaries considered themselves charged with administering clearance activities under previously stated criteria.

On April 17, 1953, respondent Anderson, the Secretary of the Navy, wrote ERCO that he had reviewed petitioner's case and had concluded that petitioner's 'continued access to Navy classified security information (was) inconsistent with the best interests of National Security.' No hearing preceded this notification. He requested ERCO to exclude petitioner 'from any part of your plants, factories or sites at which classified Navy projects are being carried out and to bar him access to all Navy classified information.' He also advised the corporation that petitioner's case was being referred to the Secretary of Defense with the recommendation that the IERB's decision of January 29, 1952, be overruled. ERCO had no choice but to comply with the request. This led to petitioner's discharge. ERCO informed the Navy of what had occurred and requested an opportunity to discuss the matter in view of petitioner's importance to the firm. The Navy replied that '(a)s far as the Navy Department is concerned, any further discussion on this problem at this time will serve no useful purpose.'

Petitioner asked for reconsideration of the decision. On October 13, 1953, the Navy wrote to him stating that it had requested the Eastern Industrial Personnel Security Board (EIPSB) to accept jurisdiction and to arrive at a final determination concerning petitioner's status. Various letters were subsequently exchanged between petitioner's counsel and the EIPSB. These resulted finally in generalized charges, quoted in the margin, incorporating the information previously discussed with petitioner at his 1952 hearing before the IERB.

On April 28, 1954, ore than one year after the Secretary took action, and for the two days thereafter, petitioner presented his case to the EIPSB and was cross-examined in detail. The hearing began with a statement by the Chairman, which included the following passage:

'The transcript to be made of this hearing will not include     all material in the file of the case, in that, it will not      include reports of investigation conducted by the Federal      Bureau of Investigation or other investigative agencies which      are confidential. Neither will it contain information     concerning the identity of confidential informants or      information which will reveal the source of confidential      evidence. The transcript will contain only the Statement of     Reasons, your answer thereto and the testimony actually taken      at this hearing.'

Petitioner was again advised that the revocation of his security clearance was based on incidents occurring between 1942 and 1947, including his associations with alleged Communists, his visits with officials of the Russian Embassy, and the presence in his house of Communist literature.

Petitioner, in response to a question, stated at the outset of the hearing that he was then employed at a salary of $4,700 per year as an architectural draftsman and that he had been receiving $18,000 per year as Vice President and General Manager of ERCO. He later explained that after his discharge from ERCO he had unsuccessfully tried to obtain employment in the aeronautics field but had been barricaded from it because of lack of clearance.

Petitioner was subjected to an intense examination similar to that which he experienced before the IERB in 1952. During the course of the examination, the Board injected new subjects of inquiry and made it evident that it was relying on various investigatory reports and statements of confidential informants which were not made available to petitioner. Petitioner reiterated in great detail the explanations previously given before the IERB. He was subjected to intense cross-examination, however, concerning reports that he had agreed with the views held by his exwife.

Petitioner again presented a number of witnesses who testified that he was loyal, that he had spoken approvingly of the United States and its economic system, that he was a valuable engineer, and that he had made valuable and significant contributions to this country's war efforts during World War II and the Korean War.

Soon after the conclusion of the hearing, the EIPSB notified petitioner that it had affirmed the Secretary's action and that it had decided that the granting of clearance to petitioner for access to classified information was 'not clearly consistent with the interests of national security.' Petitioner requested that he be furnished with a detailed statement of findings supporting the Board's decision. He was informed, however, that security considerations prohibited such disclosure. On September 16, 1955, petitioner requested review by the Industrial Personnel Security Review Board. On March 12, 1956, almost three years after the Secretary's action and nearly one year after the second hearing, he received a latter from the Director of the Office of Industrial Personnel Security Review informing him that the EIPSB had found that from 1942-1947 petitioner associated closely with his then wife and her friends, knowing that they were active in behalf of and sympathized with the Communist Party, that during part of this period petitiner maintained a sympathetic association with a number of officials of the Russian Embassy, that during this period petitioner's political views were similar to those of his then wife, that petitioner had been a member of a suspect bookshop association, had invested money in a suspect radio station, had attended a suspect dinner, and had, on occasion, Communist publications in his home, and that petitioner's credibility as a witness in the proceedings was doubtful. The letter also stated that the doubts concerning petitioner's credibility affected the Board's evaluation of his trustworthiness and that only trustworthy persons could be afforded access to classified information. The EIPSB determination was affirmed.

After the EIPSB decision in 1954, petitioner filed a complaint in the United States District Court for the District of Columbia asking for a declaration that the revocation was unlawful and void and for an order restraining respondents from acting pursuant to it. He also asked for an order requiring respondents to advise ERCO that the clearance revocation was void. Following the affirmance of the EIPSB order by the Industrial Personnel Review Board, petitioner moved for summary judgment in the District Court. The Government cross-filed for dismissal of the complaint or summary judgment. The District Court granted the Government's motion for summary judgment, 150 F.Supp. 958, and the Court of Appeals affirmed that disposition, 103 U.S.App.D.C. 87, 254 F.2d 944, 952.

The Court of Appeals recognized that petitioner had suffered substantial harm from the clearance revocation. But in that court's view, petitioner's suit presented no 'justiciable controversy'-no controversy which the courts could finally and effectively decide. This conclusion followed from the Court of Appeals' reasoning that the Executive Department alone is competent to evaluate the competing considerations which exist in determining the persons who are to be afforded security clearances. The court also rejected petitioner's claim that he was deprived of his livelihood without the traditional safeguards required by 'due process of law' such as confrontation of his accusers and access to confidential reports used to determine his fitness. Central to this determination was the court's unwillingness to order the Government to choose between disclosing the identities of informants or giving petitioner clearance.

Petitioner contends that the action of the Dpar tment of Defense in barring him from access to classified information on the basis of statements of confidential informants made to investigators was not authorized by either Congress or the President and has denied him 'liberty' and 'property' without 'due process of law' in contravention of the Fifth Amendment. The alleged property is petitioner's employment; the alleged liberty is petitioner's freedom to practice his chosen profession. Respondents admit, as they must, that the revocation of security clearance caused petitioner to lose his job with ERCO and has seriously affected, if not destroyed, his ability to obtain employment in the aeronautics field. Although the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the 'liberty' and 'property' concepts of the Fifth Amendment, Dent v. State of West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796; Peters v. Hobby, 349 U.S. 331, 352, 75 S.Ct. 790, 800, 99 L.Ed. 1129 (concurring opinion); cf. Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Truax v. Raich, 239 U.S. 33, 41, 36 S.Ct. 7, 10, 60 L.Ed. 131; Allgeyer v. State of Louisiana, 165 U.S. 578, 589-590, 17 S.Ct. 427, 431, 41 L.Ed. 832; Powell v. Commonwealth of Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 995, 1257, 32 L.Ed. 253, respondents contend that the admitted interferences which have occurred are indirect by-products of necessary governmental action to protect the integrity of secret information and hence are not unreasonable and do not constitute deprivations within the meaning of the Amendment. Alternatively, respondents urge that even if petitioner has been restrained in the enjoyment of constitutionally protected rights, he was accorded due process of law in that he was permitted to utilize those procedural safeguards consonant with an effective clearance program, in the administration of which the identity of informants and their statements are kept secret to insure an unimpaired flow to the Government of information concerning subversive conduct. But in view of our conclusion that this case should be decided on the narrower ground of 'authorization,' we find that we need not determine the answers to these questions.

The issue, as we see it, is whether the Department of Defense has been authorized to create an industrial security clearance program under which affected persons may lose their jobs and may be restrained in following their chosen professions on the basis of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confrontation and cross-examination.

Prior to World War II, only sporadic efforts were made to control the clearance of persons who worked in private establishments which manufactured materials for national defense. Report of the Commission on Government Security, 1957, S.Doc.No.64, 85th Cong., 1st Sess. 236. During World War II the War Department instituted a formalized program to obtain the discharge from war plants of persons engaed in sabotage, espionage, and willful activity designed to disrupt the national defense program. Id., at i37. In 1946, the War Department began to require contractors, before being given access to classified information, to sign secrecy agreements which required consent before their employees were permitted access to Top Secret or Secret information. Id., at 238. At the outset, each armed service administered its own industrial clearance program. Id., at 239. Later, the PSB and IERB were established by the Department of Defense and the Secretaries of the armed services to administer a more centralized program. Ibid. Confusion existed concerning the criteria and procedures to be employed by these boards. Ibid. Eventually, generalized procedures were established with the approval of the Secretaries which provided in part that before the IERB '(t)he hearing will be conducted in such manner as to protect from disclosure information affecting the national security or tending to compromise investigative sources or methods * *  * .' See 'Procedures Governing Appeals to the Industrial Employment Review Board, dated 7 November 1949,' note 48 supra, § 4(c). After abolition of these boards in 1953, and the establishment of the dated 7 November 1949,' note 4, supra, were promulgated which likewise provided for the non-disclosure of information 'tending to compromise investigative sources or methods or the identity of confidential informants.'

All of these programs and procedures were established by directives issued by the Secretary of Defense or the Secretaries of the Army, Navy, and Air Force. None was the creature of statute or of an Executive Order issued by the President.

Respondents maintain that congressional authorization to the President to fashion a program which denies security clearance to persons on the basis of confidential information which the individuals have no opportunity to confront and test is unnecessary because the President has inherent authority to maintain military secrets inviolate. And respondents argue that if a statutory grant of power is necessary, such a grant can readily be inferred 'as a necesari ly implicit authority from the generalized provisions' of legislation dealing with the armed services. But the question which must be decided in this case is not whether the President has inherent power to act or whether Congress has granted him such a power; rather, it is whether either the President or Congress exercised such a power and delegated to the Department of Defense the authority to fashion such a program.

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, e.g., Mattox v. United States, 156 U.S. 237, 242-244, 15 S.Ct. 337, 339-340, 39 L.Ed. 409; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890; Motes v. United States, 178 U.S. 458, 474, 20 S.Ct. 993, 999, 44 L.Ed. 1150; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682, but also in all types of cases where administrative and regulatory actions were under scrutiny. E.g., Southern R. Co. v. Commonwealth of Virginia, 290 U.S. 190, 54 S.Ct. 148, 78 L.Ed. 260; Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57 S.Ct. 724, 81 L.Ed. 1093; Morgan v. United States, 304 U.S. 1, 19, 58 S.Ct. 773, 776, 999, 82 L.Ed. 1129; Carter v. Kubler, 320 U.S. 243, 64 S.Ct. 1, 88 L.Ed. 26; Reilly v. Pinkus, 338 U.S. 269, 70 S.Ct. 110, 94 L.Ed. 63. Nor, as it has been pointed out, has Congress ignored these fundamental requirements in enacting regulatory legislation. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168-169, 71 S.Ct. 624, 646-647, 95 L.Ed.2d 817 (concurring opinion).

Professor Wigmore, commenting on the importance of cross-examination, states in his treatise, 5 Wigmore on Evidence (3d ed. 1940) § 1367:

'For two centuries past, the policy of the Anglo-American     system of Evidence has been to regard the necessity of      testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human     statements is comparable to that furnished by      cross-examination, and the conviction that no statement      (unless by special exception) should be used as testimony      until it has been probed and sublimated by that test, has      found increasing strength in lengthening experience.'

Little need be added to this incisive summary statement except to point out that under the present clearnce procedures not only is the testimony of absent witnesses allowed to stand without the probing questions of the person under attack which often uncover inconsistencies, lapses of recollection, and bias, but, in addition, even the members of the clearance boards do not see the informants or know their identities, but normally rely on an investigator's summary report of what the informant said without even examining the investigator personally.

We must determine against this background, whether the President or Congress has delegated to the Department of Defense the authority to by-pass these traditional and well-recognized safeguards in an industrial security clearance program which can operate to injure individuals substantially by denying to them the opportunity to follow chosen private professions. Respondents cite two Executive Orders which they believe show presidential delegation. The first, Exec. Order No. 10290, 16 Fed.Reg. 9795, 50 U.S.C.A. § 401 note, was entitled 'Prescribing Regulations Establishing Minimum Standards For The Classification, Transmission, And Handling, By Departments And Agencies of the Executive Branch, Of Official Information Which Requires Safeguarding In The Interest Of The Security Of The United States.' It provided, in relevant part:

PART V-DISSEMINATION OF CLASSIFIED SECURITY INFORMATION

'29. General. a. No person shall be entitled to knowledge or     possession of, or access to, classified security information      solely by virtue of his office or position.

'b. Classified security information shall not be discussed     with or in the presence of unauthorized persons, and the      latter shall not be permitted to inspect or have access to      such information.

'c. The head of each agency shall establish a system for     controlling the dissemination of classified security      information adequate to the needs of his agency.

'30. Limitations on dissemination-a. Within the Executive     Branch. The dissemination of classified security information     shall be limited to persons whose official duties require      knowledge of such information. Special measures shall be     employed to limit the dissemination of 'Top Secret' security      information to the absolute minimum. Only that portion of     'Top Secret' security information necessary to the proper      planning and appropriate action of any organizational unit or      individual shall be released to such unit or individual.

'b. Outside the Executive Branch. Classified security     information shall not be disseminated outside the Executive      Branch by any person or agency having access thereto or      knowledge threo f except under conditions and through      channels authorized by the head of the disseminating agency, even though such person      or agency may have been solely or partly responsible for its      production.'

The second, Exec. Order No. 10501, 18 Fed. Reg. 7049, 50 U.S.C.A. § 401 note, which revoked Exec. Order No. 10290, is entitled 'Safeguarding Official Information In The Interests Of The Defense Of The United States' and provides in relevant part:

'Sec. 7. Accountability and Dissemination.

'(b) Dissemination Outside the Executive Branch. Classified     defense information shall not be disseminated outside the      executive branch except under conditions and through channels      authorized by the head of the disseminating department or      agency, even though the person or agency to which      dissemination of such information is proposed to be made may      have been solely or partly responsible for its production.'

Clearly, neither of these orders empowers any executive agency to fashion security programs whereby persons are deprived of their present civilian employment and of the opportunity of continued activity in their chosen professions without being accorded the chance to challenge effectively the evidence and testimony upon which an adverse security determination might rest.

Turning to the legislative enactments which might be deemed as delegating authority to the Department of Defense to fashion programs under which persons may be seriously restrained in their employment opportunities through a denial of clearance without the safeguards of cross-examination and confrontation, we note the Government's own assertion, made in its brief, that '(w)ith petitioner's contention that the Industrial Security Program is not explicitly authorized by statute we may readily agree * *  * .'

The first proffered statute is the National Security Act of 1947, as amended, 5 U.S.C. § 171 et seq., 5 U.S.C.A. § 171 et seq. That Act created the Department of Defense and gave to the Secretary of Defense and the Secretaries of the armed services the authority to administer their departments. Nowhere in the Act, or its amendments, is there found specific authority to create a clearance program similar to the one now in effect.

Another Act cited by respondents is the Armed Service Procurement Act of 1947, as amended. It provides in 10 U.S.C. § 2304, 10 U.S.C.A. § 2304 that:

'(a) Purchases of and contracts for property or services     covered by this chapter shall be made by formal advertising. However, the head of an agency may negotiate such a purchase     or contract, if-

'(12) the purchase or contract is for property or services     whose procurement he determines should not be publicly      disclosed because of their character, ingredients, or      components.'

It further provides in 10 U.S.C. § 2306, 10 U.S.C.A. § 2306:

'(a) The cost-plus-a-percentage-of-cost system of contracting     may not be used. Subject to this limitation and subject to     subsections (b)-(e), the head of an agency may, in      negotiating contracts under section 2304 of this title, make      any kind of contract that he considers will promote the best      interests of the United States.' Respondents argue that these statutes, together with 18 U.S.C. § 798, 18 U.S.C.A. § 798, which makes it a crime willfully and knowingly to communicate to unauthorized persons information concerning crypto-graphic or intelligence activities, and 50 U.S.C. § 783(b), 50 U.S.C.A. § 783(b),whi ch makes it a crime for an officer or employee of the United States to communicate classified information to agents of foreign governments or officers and members of 'Communist organizations,' reflect a recognition by Congress of the existence of military secrets and the necessity of keeping those secrets inviolate.

Although these statutes make it apparent that Congress recognizes the existence of military secrets, they hardly constitute an authorization to create an elaborate clearance program which embodies procedures traditionally believed to be inadequate to protect affected persons.

Lastly, the Government urges that if we refuse to adopt its 'inferred' authorization reasoning, nevertheless, congressional ratification is apparent by the continued appropriation of funds to finance aspects of the program fashioned by the Department of Defense. Respondents refer us to Hearings before the House Committee on Appropriations on Department of Defense Appropriations for 1956, 84th Cong., 1st Sess. 774-781. At those hearings, the Committee was asked to approve the appropriation of funds to finance a program under which reimbursement for lost wages would be made to employees of government contractors who were temporarily denied, but later granted, security clearance. Apparently, such reimbursements had been made prior to that time out of general appropriations. Although a specific appropriation was eventually made for this purpose, it could not conceivably constitute a ratification of the hearing procedures, for the procedures were in no way involved in the special reimbursement program.

Respondents' argument on delegation resolves itself into the following: The President, in general terms, has authorized the Department of Defense to create procedures to restrict the dissemination of classified information and has apparently acquiesced in the elaborate program established by the Secretary of Defense even where application of the program results in restraints on traditional freedoms without the use of long-required procedural protections. Similarly, Congress, although it has not enacted specific legislation relating to clearance procedures to be utilized for industrial workers, has acquiesced in the existing Department of Defense program and has ratified it by specifically appropriating funds to finance one aspect of it.

If acquiescence or implied ratification were enough to show delegation of authority to take actions within the area of questionable constitutionality, we might agree with respondents that delegation has been shown here. In many circumstances, where the Government's freedom to act is clear, and the Congress or the President has provided general standards of action and has acquiesced in administrative interpretation, delegation may be inferred. Thus, even in the absence of specific delegation, we have no difficulty in finding, as we do, that the Department of Defense has been authorized to fashion and apply an industrial clearance program which affords affected persons the safeguards of confrontation and cross-examination. But this case does not present that situation. We deal here with substantial restraints on employment opportunities of numerous persons imposed in a manner which is in conflict with our long-accepted notions of fair procedures. Before we are asked to judge whether, in the context of security clearance cases, a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted, it must be made clear that the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use. Cf. Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273; Scull v. Commonwealth of Virginia, 359 U.S. 344, 79 S.Ct. 838, 3 L.Ed.2d 865. Such decisions cannot be assumed by acquiescence or nonaction. Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 113, 2 L.Ed.2d 1204; Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129; Ex parte Endo, 323 U.S. 283, 301-302, 65 S.Ct. 208, 218, 89 L.Ed. 243. They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized, see Peters v. Hobby, supra, but also because explicit action, especially in areas of doubtful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws. Without explicit action by lawmakers, decisions of great constitutional import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them.

Where administrative action has raised serious constitutional problems, the Court has assumed that Congress or the President intended to afford those affected by the action the traditional safeguards of due process. See, e.g., The Japanese Immigrant Case (Kaoru Yamataya v. Fisher), 189 U.S. 86, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721; Dismuke v. United States, 297 U.S. 167, 172, 56 S.Ct. 400, 80 L.Ed. 561; Ex parte Endo, 323 U.S. 283, 299-300, 65 S.Ct. 208, 217, 89 L.Ed. 243; American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 107- 108, 67 S.Ct. 133, 143, 91 L.Ed. 103; Hannegan v. Esquire, 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586; Wong Yang Sung & McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453, 94 L.Ed. 616. Cf. Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770. These cases reflect the Court's concern that traditional forms of fair procedure not be restricted by implication or without the most explicit action by the Nation's lawmakers, even in areas where it is possible that the Constitution presents no inhibition.

In the instant case, petitioner's work opportunities have been severely limited on the basis of a fact determination rendered after a hearing which failed to comport with our traditional ideas of fair procedure. The type of hearing was the product of administrative decision not explicitly authorized by either Congress or the President. Whether those procedures under the circumstances comport with the Constitution we do not decide. Nor do we decide whether the President has inherent authority to create such a program, whether congressional action is necessary, or what the limits on executive or legislative authority may be. We decide only that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.

Accordingly, the judgment is reversed and the case is remanded to the District Court for proceedings not inconsistent herewith.

It is so ordered.

Judgment reversed and case remanded to the District Court with directions.

Mr. Justice FRANKFURTER, Mr. Justice HARLAN and Mr. Justice WHITTAKER concur in the judgment on the ground that it has not been shown that either Congress or the President authorized the procedures whereby petitioner's security clearance was revoked, intimating no views as to the validity of those procedures.