Ludecke v. Watkins/Opinion of the Court

The Fifth Congress committed to the President these powers:

'Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrarted, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.' (Act of July 6, 1798, 1 Stat. 577, R.S. § 4067, as amended, 40 Stat. 531, 50 U.S.C. § 21, 50 U.S.C.A. § 21.)

This Alien Enemy Act has remained the law of the land, virtually unchanged since 1798. Throughout these one hundred and fifty years executive interpretation and decisions of lower courts have found in the Act an authority for the President which is now questioned, and the further claim is made that if what the President did comes within the Act, the Congress could not give him such power. Obviously these are issues which properly brought the case here. 333 U.S. 865, 68 S.Ct. 785.

Petitioner, a German alien enemy, was arrested on December 8, 1941, and, after proceedings before an Alien Enemy Hearing Board on January 16, 1942, was interned by order of the Attorney General, deted February 9, 1942. Under authority of the Act of 1798, the President, on July 14, 1945, directed the removal from the United States of all alien enemies 'who shall be deemed by the Attorney General to be dangerous to the public pease and safety of the United States.' Proclamation 2655, 10 Fed.Reg. 8947. Accordingly, the Attorney General, on January 18, 1946, ordered petitioner's removal. Denial of a writ of habeas corpus for release from detention under this order was affirmed by the court below. 2 Cir., 163 F.2d 143.

As Congress explicitly recognized in the recent Administrative Procedure Act, some statutes 'preclude judicial review.' Act of June 11, 1946, § 10, 60 Stat. 237, 243, 5 U.S.C.A. § 1009. Barring questions of interpretation and constitutionality, the Alien Enemy Act of 1798 is such a statute. Its terms, purpose, and construction leave no doubt. The language employed by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress. That such was the scope of the Act is established by controlling contemporaneous construction. 'The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons,' Marshall, C.J., in Brown v. United States, 8 Cranch 110, 126, 3 L.Ed. 504, 'appears to me to be as unlimited as the legislature could make it.' Washington, J., in Lockington v. Smith, 15 Fed.Cas. 758, 761, at page 760, No. 8,448. The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries, 9 Fed.Cas. page 826, No. 5,126, and every judge before whom the question has since come has held that the statute barred judicial review. We would so read the Act if it came before us without the impressive gloss of history.

The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were 'deemed by the Attorney General' to be dangerous. But such a finding, at the President's behest, was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon a finding that in fact an alien was 'dangerous.' The President was careful to call for the removal of aliens 'deemed by the Attorney General to be dangerous.' But the short answer is that the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized.

And so we reach the claim that while the President had summary power under the Act, it did not survive cessation of actual hostilities. This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. See United States v. Anderson, 9 Wall. 56 70, 19 L.Ed. 615; The Protector, 12 Wall. 700, 20 L.Ed. 463; McElrath v. United States, 102 U.S. 426, 438, 26 L.Ed. 189; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 167, 40 S.Ct. 106, 112, 64 L.Ed. 194. 'The state of war' may be terminated by treaty or legislation or Presidential proclamation. Whatever the modes, its termination is a political act. Id. Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled. Only a few months ago the Court rejected the contention that the state of war in relation to which the President has exercised the authority now challenged was terminated. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421. Nothing that has happened since calls for a qualification of that view. It is still true, as was said in the opinion in that case which eyed the war power most jealously, 'We have armies abroad exercising our war power and have made no peace terms with our allies not to mention our enemies.' Woods v. Cloyd W. Miller Co., supra, 333 U.S. at page 147, 68 S.Ct. at page 425 (concurring opinion). The situation today is strikingly similar to that of 1919, where this Court observed: 'In view of facts of public knowledge, some of which have been referred to, that the treaty of peace has not yet been concluded, that the railways are still under national control by virtue of the war powers, that other war activities have not been brought to a close, and that it cannot even be said that the man power of the nation has been restored to a peace footing, we are unable to conclude that the act has ceased to be valid.' Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. at page 163, 40 S.Ct. at page 111, 64 L.Ed. 194.

The political branch of the Government has not brought the war with Germany to and end. On the contrary, it has proclaimed that 'a state of war still exists.' Presidential Proclamation 2714, 34 U.S.C.A. § 366, 12 Fed.Reg. 1; see Woods v. Cloyd W. Miller Co., supra, 333 U.S. at page 140, 68 S.Ct. at page 422; Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375. The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. These are matters of political judgment for which judges have neither technical competence nor official responsibility.

This brings us to the final question. Is the statute valid as we have construed it? The same considerations of reason, authority, and history, that led us to reject reading the statutory language 'declared war' to mean 'actual hostilities,' support the validity of the statute. The war power is the war power. If the war, as we have held, has not in fact ended, so as to justify local rent control, a fortiori, it validly supports the power given to the President by the Act of 1798 in relation to alien enemies. Nor does it require protracted argument to find no defect in the Act because resort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the 'declared war,' as has been done in this case. The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights. The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of summary power does not argue the right of courts to retry such hearings, nor bespeak denial of due process to withhold such power from the courts.

Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:

'All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.' (Case of Fries, supra, 9 Fed.Cas. at page 836, No. 5,126.) Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it-on the President of the United States. The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric.

Judgment affirmed and stay order entered February 2, 1948, vacated.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS, Mr. Justice MURPHY and Mr. Justice RUTLEDGE join, dissenting.