Marcello v. Bonds/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The Constitution places a ban on all ex post facto laws. There are no qualifications or exceptions. Article I, § 9, applicable to the Federal Government, speaks in absolute terms: 'No * *  * ex post facto Law shall be passed.' The prohibition is the same whether a citizen or an alien is the victim. So far as ex post facto laws are concerned, the prohibition is all-inclusive and complete.

There is a school of thought that the Ex Post Facto Clause includes all retroactive legislation, civil as well as criminal. See Crosskey, Politics and the Constitution, Vol. I, c. XI; Vol. II, p. 1053. Mr. Justice Johnson took that view, maintaining that a restriction of the Clause to criminal acts was unwarranted. See Ogden v. Saunders, 12 Wheat. 213, 271, 286, 6 L.Ed. 606; Satterlee v. Matthewson, 2 Pet. 380, 416, 681, 7 L.Ed. 458 (Appendix). The Court, however, has stated over and again since Calder v. Bull, 3 Dall. 386, 1 L.Ed. 648, that the Ex Post Facto Clause applies only in criminal cases. See Carpenter v. Commonwealth, 17 How. 456, 463, 15 L.Ed. 127; Johannessen v. United States, 225 U.S. 227, 242, 32 S.Ct. 613, 617, 56 L.Ed. 1066; Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549.

At the same time, there was a parallel development in the field of ex post facto legislation. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 138-139, 3 L.Ed. 162, refused to construe the Ex Post Facto Clause narrowly and restrict it to criminal prosecutions. The Fletcher case held that property rights that had vested could not be displaced by legislative fiat. That liberal view persisted. It was given dramatic application in post-Civil War days. The leading cases are Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, where the right to practice a person's profession was sought to be taken away, in the first case by a State, in the second by the Federal Government, for acts which carried no such penalty when they were committed. The essence of those proceedings was the revocation of a license. Yet the Court held them to be violative of the Ex Post Facto Clauses because they were 'punishment' for acts carrying no such sanctions when done.

Deportation may be as severe a punishment as loss of livelihood. See Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103; Delgadillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17. As Mr. Justice Brandeis stated in Ng Fung Ho v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938, deportation may result 'in loss of both property and life, or of all that makes life worth living.'

I find nothing in the Constitution exempting aliens from the operation of ex post facto laws. I would think, therefore, that, if Congress today passed a law making any alien who had ever violated any traffic law in this country deportable, the law would be ex post facto. Congress, of course, has broad powers over the deportation of aliens. See Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. But the bare fact of a traffic violation would not reasonably be regarded as demonstrating that such a person was presently an undesirable resident. It would relate solely to an historic incident that carried no such punishment when committed. The present Act has the same vice. The alien is not deported after a hearing and on a finding by the authorities that he is undesirable for continued residence here. It is the bare past violation of the narcotic laws that is sufficient and conclusive, however isolated or insignificant such violation may have been. 8 U.S.C. § 1251, 8 U.S.C.A. § 1251. The case is, therefore, different from the earlier deportation cases where the past acts were mere counters in weighing present fitenss.

In the absence of a rational connection between the imposition of the penalty of deportation and the present desirability of the alien as a resident in this country, the conclusion is inescapable that the Act merely adds a new punishment for a past offense. That is the injustice that the Ex Post Facto Clause was designed to prevent.