Kennedy v. Mendoza-Martinez Rusk/Dissent Stewart

Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.

The Court's opinion is lengthy, but its thesis is simple: (1) The withdrawal of citizenship which these statutes provide is 'punishment.' (2) Punishment cannot constitutionally be imposed except after a criminal trial and conviction. (3) The statutes are therefore unconstitutional. As with all syllogisms, the conclusion is inescapable if the premises are correct. But I cannot agree with the Court's major premise-that the divestiture of citizenship which these statutes prescribe is punishment in the constitutional sense of that term.

Despite the broad sweep of some of the language of its opinion, the Court as I understand it does not hold that involuntary deprivation of citizenship is inherently and always a penal sanction-requiring the safeguards of a criminal trial. Such a determination would overrule at least three decisive precedents in this Court.

Nearly 50 years ago the Court held that Congress had constitutional power to denationalize a native-born citizen who married a foreigner but continued to reside here. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. The Court there explicitly rejected the argument 'that the citizenship of plaintiff was an incident to her birth in the United States, and, under the Constitution and laws of the United States, it became a right, privilege, and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation.' 239 U.S., at 308, 36 S.Ct., at 107. The power of Congress to denationalize a native-born citizen, without a criminal trial, was reaffirmed in Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. And less than five years ago, in Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603, the Court again upheld this congressional power in an opinion which unambiguously rejected the notion, advanced in that case by the dissenters, that the Mackenzie and Savorgnan decisions stand only for the proposition that citizenship may be voluntarily relinquished or abandoned either expressly or by conduct. In short, it has been established for almost 50 years that Congress under some circumstances may, without providing for a criminal trial, make expatriation the consequence of the voluntary conduct of a United States citizen, irrespective of the citizen's subjective intention to renounce his nationality, and irrespective too of his awareness that denationalization will be the result of his conduct.

The position taken by the Court today is simply that, unlike the statutes involved in Mackenzie, Savorgnan and Perez, the statutes at issue in the present case employ deprivation of citizenship as a penal sanction. In support of this position, the Court devotes many pages of its opinion to a discussion of a quite different law, enacted in 1865, amended in 1912, and repealed in 1940. That law provided for forfeiture of the 'rights of citizenship' as an additional penalty for deserters from the armed forces and for enrolled draftees who departed from their district or from the United States 'to avoid any draft into the military or naval service, duly ordered * *  * .' That statute, as the Court correctly says, 'was in terms punitive,' and I agree with the Court that the statute's legislative history, as well as subsequent judicial decisions construing it, makes it clear that the law was punitive-imposing additional punishment upon those convicted of either of the offenses mentioned.

In these cases, however, we have before us statutes which were enacted in 1944 and 1952, respectively. In construing these statutes, I think nothing is to be gained from the legislative history of a quite different law enacted by a quite different Congress in 1865, nor from the reports of still another Congress which amended that law in 1912. Unlike the 1865 law, the legislation at issue in the cases before us is not 'in terms punitive.' And there is nothing in the history of this legislation which persuades me that these statutes, though not in terms penal, nonetheless embody a purpose of the Congresses which enacted them to impose criminal punishment without the safeguards of a criminal trial.

Unlike the two sections of the Nationality Act of 1940 which were in issue in Perez v. Brownell and Trop v. Dulles, § 401(j) did not have its genesis in the Cabinet Committee's draft code which President Roosevelt submitted to Congress in 1938. Indeed, § 401(j) was the product of a totally different environment-the experience of a nation engaged in a global war.

On February 16, 1944, Attorney General Biddle addressed a letter to the Chairman of the Senate Immigration Committee, calling attention to circumstances which had arisen after the institution of the draft in World War II, and suggesting the legislation which subsequently became § 401(j). The Attorney General's letter stated in part:

'I invite your attention to the desirability of enacting     legislation which would provide (1) for the expatriation of      citizens of the United States who in time of war or during a      national emergency leave the United States or remain outside      thereof for the purpose of evading service in the armed      forces of the United States and (2) for the exclusion from      the United States of aliens who leave this country for the      above-mentioned purpose.

'Under existing law a national of the United States, whether     by birth or by naturalization, becomes expatriated by      operation of law if he (1) obtains naturalization in a      foreign state; (2) takes an oath of allegiance to a foreign      country; (3) serves in the armed forces of a foreign state if      he thereby acquires the nationality of such foreign state;      (4) accepts employment under a foreign state for which only      nationals of such state are eligible; (5) votes in a      political election in a foreign state or participates in an      election or plebiscite to determine the sovereignty over      foreign territory; (6) makes a formal renunciation of      nationality before a diplomatic or consular officer of the      United States in a foreign state; (7) deserts from the armed      forces of the United States in time of war and is convicted      thereof by a court martial; or (8) is convicted of treason      (U.S.C., title 8, sec. 801). Machinery is provided whereby a     person who is denied any right or privilege of citizenship on      the ground that he has become expatriated may secure a      judicial determination of his status; and if he is outside of      the United States he is entitled to a certificate of identity which permits him to enter and remain      in the United States until his status has been determined by      the courts (Nationality Act of 1940, sec. 503; U.S.C., title      8, sec. 903).

'The files of this Department disclose that at the present     time there are many citizens of the United States who have      left this country for the purpose of escaping service in the      armed forces. While such persons are liable to prosecution     for violation of the Selective Service and Training Act of      1940, if and when they return to this country, it would seem      proper that in addition they should lose their United States      citizenship. Persons who are unwilling to perform their duty     to their country and abandon it during its time of need are      much less worthy of citizenship than are persons who become      expatriated on any of the existing grounds.

'Accordingly, I recommend the enactment of legislation which     would provide (1) for the expatriation of citizens of the      United States who in time of war or during a national      emergency leave the United States or remain outside thereof      for the purpose of evading service in the armed forces of the      United States and (2) for the exclusion from the United      States of aliens who leave this country for that purpose. Any     person who may be deemed to have become expatriated by      operation of the foregoing provision would be entitled to      have his status determined by the courts pursuant to the      abovementioned section of the Nationality Act of 1940.'

The bill was passed unanimously by both the House and the Senate, and became Public Law No. 431 of the Seventy-eighth Congress. Neither the committee reports nor the limited debate on the measure in Congress adds any substantial gloss to the legislative action. And the legislative history of § 349(a) (10) of the Immigration and Nationality Act of 1952, the statute directly involved in the second of the two cases now before us, gives no additional illumination as to the purpose of the Eighty-second Congress, since the substantive provisions of that statute were but a recodification of § 401(j) of the 1940 Act.

The question of whether or not a statute is punitive ultimately depends upon whether the disability it imposes is for the purpose of vengeance or deterrence, or whether the disability is but an incident to some broader regulatory objective. See Cummings v. Missouri, 4 Wall. 277, 320, 322, 18 L.Ed. 356; United States v. Lovett, 328 U.S. 303, 308-312, 66 S.Ct. 1073, 1077, 90 L.Ed. 1252; Trop v. Dulles, 356 U.S., at 107-109, 78 S.Ct., at 601-603; See generally, Flemming v. Nestor, 363 U.S. 603, 613-617, 80 S.Ct. 1367, 1373-1376, 4 L.Ed.2d 1435; cf. De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1154, 4 L.Ed.2d 1109; Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 83-88, 81 S.Ct. 1357, 1403-1406, 6 L.Ed.2d 625. In commenting on the nature of this kind of inquiry, the Court said in Flemming v. Nestor, 'We observe initially that only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment, like any other, comes to us forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it.' 363 U.S., at 617, 80 S.Ct., at 1376.

In the light of the standard enunciated in Nestor, I can find no clear proof that the prime purpose of this legislation was punitive. To be sure, there is evidence that the deterrent effect of the legislation was considered. Moreover, the attitude of some members of Congress toward those whom the legislation was intended to reach was obviously far from neutral. But the fact that the word 'penalty' was used by an individual Senator in the congressional debates is hardly controlling. As The Chief Justice has so wisely remarked, 'How simple would be the tasks of constitutional adjudication and of law generally if specific problems could be solved by inspection of the labels pasted on them!'

It seems clear to me that these putative indicia of punitive intent are far overbalanced by the fact that this legislation dealt with a basic problem of wartime morale reaching far beyond concern for any individual affected. The legislation applies only to those who have left this country or remained outside of it for the purpose of avoiding the draft. Congress can reasonably be understood to have been saying that those who flee the country for such express purposes do more than simply disobey the law and avoid the imposition of criminal sanctions. They disassociate themselves entirely from their nation, seeking refuge from their wartime obligations under the aegis of another sovereign. Congress could reasonably have concluded that the existence of such a group, who voluntarily and demonstrably put aside their United States citizenship 'for the duration,' could have an extremely adverse effect upon the morale and thus the war effort not only of the armed forces, but of the millions enlisted in the defense of their nation on the civilian front. During the consideration of § 401(j) in Congress there were repeated references to the expectation that fugitive draft evaders then living abroad would return to this country after the war to resume citizenship and to enjoy the fruits of victory. The effect upon wartime morale of the known existence of such a group, while perhaps not precisely measurable in terms of impaired military efficiency, could obviously have been considered substantial. Denationalization of this class of voluntary expatriates was a rational way of dealing with this problem by removing its visible cause. In light of this broader purpose, I cannot find, as the Court does, that § 401(j) was motivated primarily by the desire to wreak vengeance upon these individuals who fled the country to avoid military service. Rather, the statute seems to me precisely the same kind of regulatory measure, rational and efficacious, which this Court upheld against similar objections in Perez v. Brownell, supra.

For the reasons stated, I cannot find in the terms of these statutes or in their legislative history anything close to the 'clearest proof' that the basic congressional purpose was to impose punishment. But that alone does not answer the constitutional inquiry in these cases. As with any other exercise of congressional power, a law which imposes deprivation of citizenship, to be constitutionally valid, must bear a rational relationship to an affirmative power possessed by Congress under the Constitution. The appellants submit that in enacting this legislation, Congress could rationally have been drawing on any one of three sources of recognized constitutional power: the implied power to enact legislation for the effective conduct of foreign affairs; the express power to wage war, to raise armies, and to provide for the common defense; and the inherent attributes of sovereignty.

The appellants argue that this legislation, like the statutory provision sustained in Perez v. Brownell, supra, has a direct relationship to foreign affairs. They point out that international complications could arise if this country attempted to effect the return of citizen draft evaders by requests to a foreign sovereign which that nation might be unwilling to grant. The appellants insist that the possibility of international embroilments resulting from problems caused by fugitive draft evaders is not fanciful, pointing to the background of international incidents preceding the War of 1812, and the long history, later in the nineteenth century, of this country's involvement with other nations over the asserted liability of our naturalized citizens to military obligations imposed by their native countries. Expatriation of those who leave or remain away from the United States with draft evasion as their purpose, the appellants say, might reasonably be attributed to a congressional belief that this was the only practical way to nip these potential international problems in the bud. Compare Perez v. Brownell, 356 U.S., at 60, 78 S.Ct., at 577; Trop v. Dulles, 356 U.S., at 106, 78 S.Ct., at 600 (concurring opinion).

In the view I take of this case, it is unnecessary to pursue further an inquiry as to whether the power to regulate foreign affairs could justify denationalization for the conduct in question. For I think it apparent that Congress in enacting the statute was drawing upon another power, broad and far reaching.

A basic purpose of the Constitution was to 'provide for the common defence.' To that end, the Framers expressly conferred upon Congress a compendium of powers which have come to be called the 'war power.' Responsive to the scope and magnitude of ultimate national need, the war power is 'the power to wage war successfully.' See Charles Evans Hughes, War Powers under the Constitution, 42 A.B.A.Rep. 232, 238.

It seems to me evident that Congress was drawing upon this power when it enacted the legislation before us. To be sure, the underlying purpose of this legislation can hardly be refined to the point of isolating one single, precise objective. The desire to end a potential drain upon this country's military manpower was clearly present in the minds of the legislators and would itself have constituted a purpose having sufficient rational nexus to the exercise of the war power. Indeed, there is no more fundamental aspect of this broad power than the building and maintaining of armed forces sufficient for the common defense. Selective Draft Law Cases, (Arver v. United States) 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349; see Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. But, in any event, the war power clearly supports the objective of removing a corrosive influence upon the morale of a nation at war. As the Court said in Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774, the war power 'extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war.' See Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694.

This legislation is thus quite different from the statute held invalid in Trop v. Dulles, supra. In that case there were not five members of the Court who were able to find the 'requisite rational relation' between the war power of Congress and § 401(g) of the 1940 Act imposing denationalization upon wartime deserters from the armed forces. As the concurring opinion pointed out, the statute was 'not limited in its effects to those who desert in a foreign country or who flee to another land.' 356 U.S., at 107, 78 S.Ct., at 601. Indeed, 'The Solicitor General acknowledged that forfeiture of citizenship would have occurred if the entire incident had transpired in this country.' 356 U.S., at 92, 78 S.Ct., at 593. It was emphasized that conduct far short of disloyalty could technically constitute the military offense of desertion, 356 U.S., at 112, 113, 78 S.Ct., at 604, 605, and that the harshness of denationalization for conduct so potentially equivocal was 'an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power.' 356 U.S., at 110, 78 S.Ct., at 603.

The legislation now before us, on the other hand, is by its terms completely inapplicable to those guilty of draft evasion who have remained in the United States; it is exclusively aimed at those, whether or not ever criminally convicted, who have gone to or remained in another land to escape the duty of military service. Moreover, the conduct which the legislation reaches could never be equivocal in nature, but is always and clearly a 'refusal to perform this ultimate duty of American citizenship.' Trop v. Dulles, 356 U.S., at 112, 78 S.Ct., at 604 (concurring opinion).

There is one more point to be made as to the substantive provisions of the legislation before us in these cases. Previous decisions have suggested that congressional exercise of the power to expatriate may be subject to a further constitutional restriction-a limitation upon the kind of activity which may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure. Moreover, the power to expatriate endows government with authority to define and to limit the society which it represents and to which it is responsible.

This Court has never held that Congress' power to expatriate may be used unsparingly in every area in which it has general power to act. Our previous decisions upholding involuntary denationalization all involved conduct inconsistent with undiluted allegiance to this country. But I think the legislation at issue in these cases comes so clearly within the compass of those decisions as to make unnecessary in this case an inquiry as to what the ultimate limitation upon the expatriation power may be.

The conduct to which this legislation applies, involving not only the attribute of flight or absence from this country in time of war or national emergency, but flight or absence for the express purpose of evading the duty of helping to defend this country, amounts to an unequivocal and conspicuous manifestation of nonallegiance, whether considered objectively or subjectively. Ours is a tradition of the citizen soldier. As this Court has said, '(T)he very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it.' Selective Draft Law Cases, (Arver v. United States) 245 U.S. 366, at 378, 38 S.Ct. 159, at 161. It is hardly an improvident exercise of constitutional power for Congress do disown those who have disowned this Nation in time of ultimate need.

For the reasons stated, I believe the substantive provisions of § 401(j) of the 1940 Act and of § 349(a)(10) of the 1952 Act are constitutionally valid. In addition to its substantive provisions, however, § 349(a)(10) declares:

'For the purposes of this paragraph failure to comply with     any provision of any compulsory service laws of the United      States shall raise the presumption that the departure from or      absence from the United States was for the purpose of evading      or avoiding training and service in the military, air, or      naval forces of the United States.'

I think the evidentiary presumption which the statute creates is clearly invalid, and that it fatally infected the administrative determination that Joseph Henry Cort had lost his citizenship.

The District Court did not mention this statutory presumption, and it is, therefore, impossible to know how much the court relied upon it, if at all. Indeed, the District Court's attention in this case was oriented primarily towards the issue of its jurisdiction and the basic issue of the constitutionality of the substantive provisions of § 349(a)(10). In view of its holding that § 349(a)(10) is unconstitutional, the court understandably did not give exhaustive attention to the factual issues presented, devoting but a single short paragraph to the question of whether Cort's conduct had brought him within the statute. 187 F.Supp., at 686.

But it is clear that the final reviewing agency in the State Department relied heavily upon this presumption in determining that Cort had lost his citizenship. The Board of Review on the Loss of Nationality, in its memorandum affirming the initial administrative determination that Cort had lost his citizenship, stated that '(b)y failing to comply with the notices sent to him by his local board, Dr. Cort brought upon himself the presumption mentioned in Section 349(a)(10), that his continued absence from the United States was for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States. Even if the Board should consider that the presumption could be overcome by showing that a person remained abroad for a purpose other than to avoid the military service, the evidence in Dr. Cort's case, taken as a whole, does not show that he remained abroad for a purpose other than to avoid being drafted.' (Emphasis added.) One of the Board's specific findings was 'that Dr. Cort has not overcome the presumption raised in the last sentence of Section 349(a)(10) of the Immigration and Nationality Act.'

As was said in Speiser v. Randall, 357 U.S. 513, at 520-521, 78 S.Ct. 1332, at 1339, 2 L.Ed.2d 1460, 'it is commonplace that the outcome of a lawsuit-and hence the vindication of legal rights-depends more often on how the factfinder appraises the facts than on a disputed construction of a statute or interpretation of a line of precedents. Thus the procedures by which the facts of the case are determined assume an importance fully as great as the validity of the substantive rule of law to be applied. And the more important the rights at stake the more important must be the procedural safe-guards surrounding those rights.'

The presumption created by § 349(a)(10) is wholly at odds with the decisions of the Court which hold that in cases such as this a heavy burden is upon the Government to prove an act of expatriation by clear, convincing, and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659. This standard commands that 'evidentiary ambiguities are not to be resolved against the citizen.' Nishikawa v. Dulles, 356 U.S., at 136, 78 S.Ct., at 617.

Without pausing to consider whether this evidentiary standard is a constitutional one, it is clear to me that the statutory presumption here in question is constitutionally invalid because there is insufficient 'rational connection between the fact proved and the ultimate fact presumed.' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519. 'A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repeal it violates the due process clause of the Fourteenth Amendment.' Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575. A federal statute which creates such a presumption is no less violative of Fifth Amendment due process. 'Mere legislative fiat may not take the place of fact in the determination of issues involving life, liberty or property.' Ibid. It is 'essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate.' Mobile, J. & K.C.R. Co. v. Turnipseed, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78. Cf. Speiser v. Randall, supra.

The failure of a person abroad to comply with notices sent by his draft board would obviously be relevant evidence in determining whether that person had gone or remained abroad for the purpose of avoiding military service. But the statute goes much further. It creates a presumption of an expatriating act from failure to comply with 'any provision of any compulsory service laws' by a citizen abroad, regardless of the nature of the violations and regardless of the innocence of his purpose in originally leaving the United States. The various compulsory service laws of the United States contain a multitude of provisions, many of them technical or relatively insignificant. To draw from the violation of a single such provision a presumption of expatriation, with its solemn consequences, is, I think, to engaged in irrationality so gross as to be constitutionally impermissible.

It is clear from the record in this case that Court's sole purpose in leaving the United States in 1951 was to accept a position as a Research Fellow at the University of Cambridge, England. The record also makes clear that in 1946 Cort was called up under the Selective Service law, physically examined, and classified as 4F because of physical disability. The record further shows that Cort voluntarily registered under the Doctors Draft Act, making special arrangements with his draft board to do so in advance of the effective date for registration under the statute, a few days before he left for Europe. Cort filed an affidavit in which he swore that it was his belief, in the light of his physical disability, that the induction order which he received in England was not issued in good faith to secure his military service, but that its purpose instead was to force him to return to the United States to be investigated by the House Committee on Un-American Activities or prosecuted under the Smith Act. He has made repeated efforts to arrange with Selective Service officials for the fulfillment, albeit belatedly, of his military obligations, if any, and in 1959 his wife came to the United States and met with officials of the Selective Service system for that purpose. The very reason he applied in Prague for a United States passport was, as he swore, so that he could return to the United States in order to respond to the indictment for draft evasion now pending against him in Massachusetts and to fulfill his Selective Service obligations, if any. When Cort applied in Prague for a passport, the American Consul there, who interviewed him, stated his opinion in writing that he had no reason to disbelieve Cort's sworn statement that he had not remained outside the United States to avoid military service. I mention this evidence as disclosed by the present record only to indicate why I think a new administrative hearing freed from the weight of the statutory presumption is in order, not to imply any prejudgment of what I think the ultimate administrative decision should be.

In No. 3, Rusk v. Cort, I would vacate the judgment of the District Court and remand the case with instructions to declare null and void the certificate of loss of nationality issued to Court by the Secretary of State, so that upon Cort's renewed application for a passport, an administrative hearing could be had, free of the evidentiary presumption of § 349(a)(10). In the event that such administrative proceedings should result in a finding that Cort had lost his United States citizenship, he would be entitled to a de novo judicial hearing in which the Government would have the burden of proving an act of expatriation by clear, convincing and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, 356 U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659.

In No. 2, Kennedy v. Mendoza-Martinez, I would reverse the judgment of the District Court.