United
States Supreme Court
FLEMMING
v. NESTOR, (1960)
No.
54
Argued:
February 24, 1960 Decided: June 20, 1960
Section 202 (n) of the Social Security Act, as amended,
provides for the termination of old-age benefits payable to an alien who, after
the date of its enactment (September 1, 1954), is deported under 241 (a) of the
Immigration and Nationality Act on any one of certain grounds specified in 202
(n). Appellee, an alien who had become eligible for
old-age benefits in 1955, was deported in 1956, pursuant to 241 (a) of the
Immigration and Nationality Act, for having been a member of the Communist
Party from 1933 to 1939. Since this was one of the grounds specified in 202
(n), his old-age benefits were terminated shortly thereafter. He commenced this
action in a single-judge District Court, under 205 (g) of the Social Security
Act, to secure judicial review of that administrative decision. The District
Court held that 202 (n) deprived appellee of an
accrued property right and, therefore, violated the Due Process Clause of the
Fifth Amendment. Held:
1.
Although this action drew into question the constitutionality of 202 (n), it
did not involve an injunction or otherwise interdict the operation of the
statutory scheme; 28 U.S.C. 2282, forbidding the issuance of an injunction
restraining the enforcement, operation or execution of an Act of Congress for
repugnance to the Constitution, except by a three-judge District Court, was not
applicable; and jurisdiction over the action was properly exercised by the
single-judge District Court. Pp. 606-608.
2.
A person covered by the Social Security Act has not such a right in old-age
benefit payments as would make every defeasance of "accrued"
interests violative of the Due Process Clause of the
Fifth Amendment. Pp. 608-611.
(a)
The noncontractual interest of an employee covered by
the Act cannot be soundly analogized to that of the holder of an annuity, whose
right to benefits are based on his contractual premium
payments. Pp. 608-610.
(b)
To engraft upon the Social Security System a concept of "accrued property
rights" would deprive it of the flexibility and [363 U.S. 603, 604]
boldness in adjustment to ever-changing conditions which it demands and
which Congress probably had in mind when it expressly reserved the right to
alter, amend or repeal any provision of the Act. Pp. 610-611.
3.
Section 202 (n) of the Act cannot be condemned as so lacking in rational
justification as to offend due process. Pp. 611-612.
4.
Termination of appellee's benefits under 202 (n) does
not amount to punishing him without a trial, in violation of Art. III, 2, cl.
3, of the Constitution or the Sixth Amendment; nor is 202 (n) a bill of
attainder or ex post facto law, since its purpose is not punitive. Pp. 612-621.
169 F. Supp. 922, reversed.
John F. Davis argued the cause for appellant. On the brief
were Solicitor General Rankin, Assistant Attorney General Yeagley
and Kevin T. Maroney.
David Rein argued the cause for appellee.
With him on the brief was Joseph Forer.
MR. JUSTICE HARLAN delivered the opinion of the Court.
From a decision of the District Court for the District of
Columbia holding 202 (n) of the Social Security Act (68 Stat. 1083, as amended,
42 U.S.C. 402 (n)) unconstitutional, the Secretary of Health, Education, and
Welfare takes this direct appeal pursuant to 28 U.S.C. 1252. The challenged
section, set forth in full in the margin, 1 provides for the termination of old-age,
survivor, [363 U.S. 603, 605] and
disability insurance benefits payable to, or in certain cases in respect of, an
alien individual who, after September 1, 1954 (the date of enactment of the
section), is deported under 241 (a) of the Immigration and Nationality Act (8
U.S.C. 1251 (a)) on any one of certain grounds specified in 202 (n).
Appellee, an alien, immigrated to this country from Bulgaria in
1913, and became eligible for old-age benefits in November 1955. In July 1956
he was deported pursuant to 241 (a) (6) (C) (i) of the
Immigration and Nationality Act for having been a member of the Communist Party
from 1933 to 1939. This being one of the benefit-termination deportation
grounds specified in 202 (n), appellee's benefits
were terminated soon thereafter, and notice of the termination was given to his
wife, [363 U.S. 603, 606] who had remained in this country. 2 Upon his failure to obtain administrative
reversal of the decision, appellee commenced this
action in the District Court, pursuant to 205 (g) of the Social Security Act
(53 Stat. 1370, as amended, 42 U.S.C. 405 (g)), to secure judicial review. 3 On cross-motions for summary judgment, the
District Court ruled for appellee, holding 202 (n)
unconstitutional under the Due Process Clause of the Fifth Amendment in that it
deprived appellee of an accrued property right. 169 F. Supp. 922. The Secretary prosecuted an appeal to this
Court, and, subject to a jurisdictional question hereinafter discussed, we set
the case down for plenary hearing. 360 U.S. 915 .
The preliminary jurisdictional question is whether 28 U.S.C.
2282 is applicable, and therefore required that the case be heard below before
three judges, rather than by a single judge, as it was. Section 2282 forbids
the issuance, except by a three-judge District Court, of [363 U.S. 603, 607]
any "interlocutory or permanent injunction restraining the
enforcement, operation or execution of any Act of Congress for repugnance to
the Constitution . . . ." Neither party requested a
three-judge court below, and in this Court both parties argue the
inapplicability of 2282. If the provision applies, we cannot reach the merits,
but must vacate the judgment below and remand the case for consideration by a
three-judge District Court. See Federal Housing
Administration v. The Darlington, Inc., 352 U.S. 977 .
Under the decisions of this Court, this 205 (g) action
could, and did, draw in question the constitutionality of 202 (n). See, e. g.,
Anniston Mfg. Co. v. Davis, 301 U.S.
337, 345 -346. However, the action did no more. It did not seek
affirmatively to interdict the operation of a statutory scheme. A judgment for appellee would not put the operation of a federal statute
under the restraint of an equity decree; indeed, apart from its effect under
the doctrine of stare decisis, it would have no other
result than to require the payment of appellee's
benefits. In these circumstances we think that what was said in Garment Workers
v. Donnelly Co., 304 U.S. 243 , where this Court dealt with an analogous
situation, is controlling here:
"[The
predecessor of 2282] does not provide for a case where the validity of an Act
of Congress is merely drawn in question, albeit that question be decided, but
only for a case where there is an application for an interlocutory or permanent
injunction to restrain the enforcement of an Act of Congress. . . . Had
Congress intended the provision . . ., for three judges and direct appeal, to
apply whenever a question of the validity of an Act of Congress became
involved, Congress would naturally have used the familiar phrase `drawn in
question' . . . ." Id., at 250. [363 U.S. 603, 608]
We hold that jurisdiction over the
action was properly exercised by the District Court, and therefore reach the
merits.
I.
We think that the District Court erred in holding that 202
(n) deprived appellee of an "accrued property
right." 169 F. Supp., at 934. Appellee's
right to Social Security benefits cannot properly be considered to have been of
that order.
The general purposes underlying the Social Security Act were
expounded by Mr. Justice Cardozo in Helvering v.
Davis, 301
U.S. 619, 640 -645. The issue here, however, requires some inquiry into the
statutory scheme by which those purposes are sought to be achieved. Payments
under the Act are based upon the wage earner's record
of earnings in employment or self-employment covered by the Act, and take the
form of old-age insurance and disability insurance benefits inuring to the wage
earner (known as the "primary beneficiary"), and of benefits,
including survivor benefits, payable to named dependents ("secondary
beneficiaries") of a wage earner. Broadly speaking, eligibility for
benefits depends on satisfying statutory conditions as to (1) employment in
covered employment or self-employment (see 210 (a), 42 U.S.C. 410 (a)); (2) the
requisite number of "quarters of coverage" - i.
e., three-month periods during which not less than a stated sum was earned -
the number depending generally on age (see 213-215, 42 U.S.C. 413-415); and (3)
attainment of the retirement age (see 216 (a), 42 U.S.C. 416 (a)). 202 (a), 42 U.S.C. 402 (a). 4 Entitlement to benefits once gained, [363 U.S. 603, 609] is partially or totally lost if the beneficiary
earns more than a stated annual sum, unless he or she is at least 72 years old.
203 (b), (e), 42 U.S.C. 403 (b), (e). Of special
importance in this case is the fact that eligibility for benefits, and the
amount of such benefits, do not in any true sense depend on contribution to the
program through the payment of taxes, but rather on the earnings record of the
primary beneficiary.
The program is financed through a payroll tax levied on
employees in covered employment, and on their employers. The tax rate, which is
a fixed percentage of the first $4,800 of employee annual income, is set at a
scale which will increase from year to year, presumably to keep pace with
rising benefit costs. I. R. C. of 1954, 3101, 3111, 3121 (a). The tax proceeds
are paid into the Treasury "as internal-revenue collections," I. R.
C., 3501, and each year an amount equal to the proceeds is appropriated to a
Trust Fund, from which benefits and the expenses of the program are paid. 201, 42 U.S.C. 401. It was evidently contemplated that
receipts would greatly exceed disbursements in the early years of operation of
the system, and surplus funds are invested in government obligations, and the
income returned to the Trust Fund. Thus, provision is made for expected
increasing costs of the program.
The Social Security system may be accurately described as a
form of social insurance, enacted pursuant to Congress' power to "spend
money in aid of the `general welfare,'" Helvering
v. Davis, supra, at 640, whereby persons gainfully employed, and those who
employ them, are taxed to permit the payment of benefits to the retired and
disabled, and their dependents. Plainly the expectation is that many members of
the present productive work force will in turn become beneficiaries rather than
supporters of the program. But each worker's benefits, though flowing from the
contributions he made to the [363 U.S.
603, 610] national economy
while actively employed, are not dependent on the degree to which he was called
upon to support the system by taxation. It is apparent that the noncontractual interest of an employee covered by the Act
cannot be soundly analogized to that of the holder of an annuity, whose right
to benefits is bottomed on his contractual premium payments.
It is hardly profitable to engage in conceptualizations
regarding "earned rights" and "gratuities." Cf. Lynch v. United States, 292 U.S.
571, 576 -577. The "right" to Social Security benefits is
in one sense "earned," for the entire scheme rests on the legislative
judgment that those who in their productive years were functioning members of
the economy may justly call upon that economy, in their later years, for
protection from "the rigors of the poor house as well as from the haunting
fear that such a lot awaits them when journey's end is near." Helvering v.
Davis, supra, at 641. But the practical effectuation of that judgment
has of necessity called forth a highly complex and interrelated statutory
structure. Integrated treatment of the manifold specific problems presented by
the Social Security program demands more than a generalization. That program
was designed to function into the indefinite future, and its specific
provisions rest on predictions as to expected economic conditions which must
inevitably prove less than wholly accurate, and on judgments and preferences as
to the proper allocation of the Nation's resources which evolving economic and
social conditions will of necessity in some degree modify.
To engraft upon the Social Security system a concept of
"accrued property rights" would deprive it of the flexibility and
boldness in adjustment to ever-changing conditions which it demands. See Wollenberg, Vested Rights in Social-Security Benefits, 37
Ore. L. Rev. 299, 359. It was doubtless out of an awareness of the need for
such flexibility that Congress included in the original Act, and [363 U.S. 603, 611]
has since retained, a clause expressly reserving to it "[t]he right
to alter, amend, or repeal any provision" of the Act. 1104,
49 Stat. 648, 42 U.S.C. 1304. That provision makes express what is
implicit in the institutional needs of the program. See Analysis of the Social
Security System, Hearings before a Subcommittee of the Committee on Ways and
Means, House of Representatives, 83d Cong., 1st Sess., pp. 920-921. It was
pursuant to that provision that 202 (n) was enacted.
We must conclude that a person covered by the Act has not
such a right in benefit payments as would make every defeasance of
"accrued" interests violative of the Due
Process Clause of the Fifth Amendment.
II.
This is not to say, however, that Congress may exercise its power
to modify the statutory scheme free of all constitutional restraint. The
interest of a covered employee under the Act is of sufficient substance to fall
within the protection from arbitrary governmental action afforded by the Due
Process Clause. In judging the permissibility of the cut-off provisions of 202
(n) from this standpoint, it is not within our authority to determine whether
the Congressional judgment expressed in that section is sound or equitable, or
whether it comports well or ill with the purposes of the Act. "Whether
wisdom or unwisdom resides in the scheme of benefits
set forth in Title II, it is not for us to say. The answer to such inquiries
must come from Congress, not the courts. Our concern here, as often, is with
power, not with wisdom." Helvering v. Davis, supra, at 644. Particularly when we deal with a
withholding of a noncontractual benefit under a
social welfare program such as this, we must recognize that the Due Process
Clause can be thought to interpose a bar only if the statute manifests a
patently arbitrary classification, utterly lacking in rational justification. [363 U.S. 603, 612]
Such is not the case here. The fact of a beneficiary's
residence abroad - in the case of a deportee, a presumably permanent residence
- can be of obvious relevance to the question of eligibility. One benefit which
may be thought to accrue to the economy from the Social Security system is the
increased over-all national purchasing power resulting from taxation of
productive elements of the economy to provide payments to the retired and
disabled, who might otherwise be destitute or nearly so, and who would
generally spend a comparatively large percentage of their benefit payments.
This advantage would be lost as to payments made to one residing abroad. For
these purposes, it is, of course, constitutionally irrelevant whether this
reasoning in fact underlay the legislative decision, as it is irrelevant that
the section does not extend to all to whom the postulated rationale might in
logic apply. 5 See United States v. Petrillo,
332 U.S. 1,
8 -9; Steward Machine Co. v. Davis, 301 U.S.
548, 584 -585; cf. Carmichael v. Southern Coal Co., 301 U.S.
495, 510 -513. Nor, apart from this, can it be deemed irrational for
Congress to have concluded that the public purse should not be utilized to
contribute to the support of those deported on the grounds specified in the
statute.
We need go no further to find support for our conclusion
that this provision of the Act cannot be condemned as so lacking in rational
justification as to offend due process.
III.
The remaining, and most insistently
pressed, constitutional objections rest upon Art. I, 9, cl.
3, and Art. III, [363
U.S. 603, 613] 2, cl. 3, of
the Constitution, and the Sixth Amendment. 6 It is said that the termination of appellee's benefits amounts to punishing him without a
judicial trial, see Wong Wing v. United States, 163 U.S. 228 ;
that the termination of benefits constitutes the imposition of punishment by
legislative act, rendering 202 (n) a bill of attainder, see United States v.
Lovett, 328
U.S. 303 ; Cummings v. Missouri, 4 Wall. 277; and that the punishment
exacted is imposed for past conduct not unlawful when engaged in, thereby
violating the constitutional prohibition on ex post facto laws, see Ex parte
Garland, 4 Wall. 333. 7 Essential to the success of each of these
contentions is the validity of characterizing as "punishment" in the
constitutional sense the termination of benefits under 202 (n).
In determining whether legislation which bases a
disqualification on the happening of a certain past event imposes a punishment,
the Court has sought to discern the objects on which the enactment in question
was [363 U.S. 603, 614] focused. Where the source of legislative
concern can be thought to be the activity or status from which the individual
is barred, the disqualification is not punishment even though it may bear
harshly upon one affected. The contrary is the case where the statute in
question is evidently aimed at the person or class of persons disqualified. In
the earliest case on which appellee relies, a
clergyman successfully challenged a state constitutional provision barring from
that profession - and from many other professions and offices - all who would
not swear that they had never manifested any sympathy or support for the cause
of the Confederacy. Cummings v. Missouri, supra. The
Court thus described the aims of the challenged enactment:
"The
oath could not . . . have been required as a means of ascertaining whether
parties were qualified or not for their respective callings or the trusts with
which they were charged. It was required in order to reach the person, not the
calling. It was exacted, not from any notion that the several acts designated
indicated unfitness for the callings, but because it was thought that the
several acts deserved punishment . . . ." Id., at 320.
(Emphasis supplied.)
Only the other day the governing
inquiry was stated, in an opinion joined by four members of the Court, in these
terms:
"The
question in each case where unpleasant consequences are brought to bear upon an
individual for prior conduct, is whether the
legislative aim was to punish that individual for past activity, or whether the
restriction of the individual comes about as a relevant incident to a
regulation of a present situation, such as the proper qualifications for a
profession." De Veau v. Braisted, 363 U.S.
144, 160 (plurality opinion). [363
U.S. 603, 615]
In Ex parte Garland, supra, where
the Court struck down an oath - similar in content to that involved in Cummings
- required of attorneys seeking to practice before any federal court, as also
in Cummings, the finding of punitive intent drew heavily on the Court's
first-hand acquaintance with the events and the mood of the then recent Civil
War, and "the fierce passions which that struggle aroused." Cummings v. Missouri, supra, at 322. 8 Similarly, in United States v. Lovett, supra,
where the Court invalidated, as a bill of attainder, a statute forbidding -
subject to certain conditions - the further payment of the salaries of three
named government employees, the determination that a punishment had been
imposed rested in large measure on the specific Congressional history which the
Court was at pains to spell out in detail. See 328 U.S.,
at 308 -312. Most recently, in Trop v. Dulles, 356 U.S. 86 , which held unconstitutional a statute providing for
the expatriation of one who had been sentenced by a court-martial to dismissal
or dishonorable discharge for wartime desertion, the majority of the Court
characterized the statute as punitive. However, no single opinion commanded the
support of a majority. The plurality opinion rested its determination, at least
in part, on its inability to discern any alternative purpose which the statute
could be thought to serve. Id., at 97. The concurring
opinion found in the specific historical evolution of the provision in question
compelling evidence of punitive intent. Id., at 107-109. [363 U.S. 603, 616]
It is thus apparent that, though the governing criterion may
be readily stated, each case has turned on its own highly particularized
context. Where no persuasive showing of a purpose "to reach the person,
not the calling," Cummings v. Missouri, supra, at 320, has been made, the
Court has not hampered legislative regulation of activities within its sphere
of concern, despite the often-severe effects such regulation has had on the
persons subject to it. 9 Thus, deportation has been held to be not
punishment, but an exercise of the plenary power of Congress to fix the
conditions under which aliens are to be permitted to enter and remain in this
country. Fong Yue Ting v. United States, 149 U.S.
698, 730 ; see Galvan v. Press, 347 U.S.
522, 530 -531. Similarly, the setting by a State of qualifications for the
practice of medicine, and their modification from time to time, is an incident
of the State's power to protect the health and safety of its citizens, and its
decision to bar from practice persons who commit or have committed a felony is
taken as evidencing an intent to exercise that regulatory power, and not a
purpose to add to the punishment of ex-felons. Hawker v.
New York, 170
U.S. 189 . See De Veau
v. Braisted, supra (regulation of crime on the
waterfront through disqualification of ex-felons from holding union office).
Cf. Helvering v. Mitchell, 303 U.S.
391, 397 -401, holding that, with respect to deficiencies due to fraud, a
50 percent addition to the tax imposed was not punishment so as to prevent,
upon principles of double jeopardy, its assessment against one acquitted of tax
evasion.
Turning, then, to the particular statutory provision before
us, appellee cannot successfully contend that the
language and structure of 202 (n), or the nature of [363 U.S. 603, 617]
the deprivation, requires us to recognize a punitive design. Cf. Wong
Wing v. United States, supra (imprisonment, at hard labor up to one year, of
person found to be unlawfully in the country). Here the sanction is the mere
denial of a noncontractual governmental benefit. No
affirmative disability or restraint is imposed, and certainly nothing
approaching the "infamous punishment" of imprisonment, as in Wong
Wing, on which great reliance is mistakenly placed. Moreover, for reasons
already given (ante, pp. 611-612), it cannot be said, as was said of the
statute in Cummings v. Missouri, supra, at 319; see Dent v. West Virginia, 129 U.S.
114, 126 , that the disqualification of certain deportees from receipt of
Social Security benefits while they are not lawfully in this country bears no
rational connection to the purposes of the legislation of which it is a part,
and must without more therefore be taken as evidencing a Congressional desire
to punish. Appellee argues, however, that the history
and scope of 202 (n) prove that no such postulated purpose can be thought to
have motivated the legislature, and that they persuasively show that a punitive
purpose in fact lay behind the statute. We do not agree.
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. "[I]t is not on slight implication and vague conjecture that the
legislature is to be pronounced to have transcended its powers, and its acts to
be considered as void." Fletcher v. Peck, 6 Cranch
87, 128. [363 U.S. 603, 618]
Section 202 (n) was enacted as a small part of an extensive
revision of the Social Security program. The provision originated in the House
of Representatives. H. R. 9366, 83d Cong., 2d Sess., 108. The discussion in the
House Committee Report, H. R. Rep. No. 1698, 83d Cong., 2d Sess., pp. 5, 25,
77, does not express the purpose of the statute. However, it does say that the
termination of benefits would apply to those persons who were "deported
from the United States because of illegal entry, conviction of a crime, or
subversive activity . . . ." Id., at 25. It was
evidently the thought that such was the scope of the statute resulting from its
application to deportation under the 14 named paragraphs of 241 (a) of the
Immigration and Nationality Act. Id., at 77. 10
The Senate Committee rejected the proposal, for the stated
reason that it had "not had an opportunity to give sufficient study to all
the possible implications of this provision, which involves termination of
benefit rights under the contributory program of old-age and survivors
insurance . . . ." S. Rep. No. 1987, 83d Cong., 2d Sess., p. 23; see also
id., at 76. However, in Conference, the proposal was restored in modified form,
11 and as modified was enacted as 202 (n). See H.
R. Conf. Rep. No. 2679, 83d Cong., 2d Sess., p. 18.
Appellee argues that this history demonstrates that Congress was not
concerned with the fact of a beneficiary's [363
U.S. 603, 619] deportation
- which it is claimed alone would justify this legislation as being pursuant to
a policy relevant to regulation of the Social Security system - but that it
sought to reach certain grounds for deportation, thus evidencing a punitive
intent. 12 It is impossible to find in this meagre history the unmistakable evidence of punitive intent
which, under principles already discussed, is required before a Congressional
enactment of this kind may be struck down. Even were that history to be taken
as evidencing Congress' concern with the grounds, rather than the fact, of
deportation, we do not think that this, standing alone, would suffice to
establish a punitive purpose. This would still be a far cry from the situations
involved in such cases as Cummings, Wong Wing, and Garland (see ante, p. 617),
and from that in Lovett, supra, where the legislation was on its face aimed at
particular individuals. The legislative record, however, falls short of any
persuasive showing that Congress was in fact concerned alone with the grounds
of deportation. To be sure Congress did not apply the termination [363 U.S. 603, 620]
provision to all deportees. However, it is evident that neither did it
rest the operation of the statute on the occurrence of the underlying act. The
fact of deportation itself remained an essential condition for loss of
benefits, and even if a beneficiary were saved from deportation only through
discretionary suspension by the Attorney General under 244 of the Immigration
and Nationality Act (66 Stat. 214, 8 U.S.C. 1254), 202 (n) would not reach him.
Moreover, the grounds for deportation referred to in the
Committee Report embrace the great majority of those deported, as is evident
from an examination of the four omitted grounds, summarized in the margin. 13 Inferences drawn from the omission of those
grounds cannot establish, to the degree of certainty required, that
Congressional concern was wholly with the acts leading to deportation, and not
with the fact of deportation. 14 To hold otherwise would be to rest on the
"slight implication and vague conjecture" against which Chief Justice
Marshall warned. Fletcher v. Peck, supra, at 128.
The same answer must be made to arguments drawn from the
failure of Congress to apply 202 (n) to beneficiaries [363 U.S. 603, 621]
voluntarily residing abroad. But cf. 202 (t), ante, note
5. Congress may have failed to consider such persons; or it may have thought
their number too slight, or the permanence of their voluntary residence abroad
too uncertain, to warrant application of the statute to them, with its
attendant administrative problems of supervision and enforcement. Again, we
cannot with confidence reject all those alternatives which imaginativeness can
bring to mind, save that one which might require the invalidation of the
statute.
Reversed.
Footnotes
[ Footnote 1 ] Section 202 (n) provides as follows:
"(n)
(1) If any individual is (after the date of enactment of this subsection)
deported under paragraph (1), (2), (4), (5), (6), (7), (10), (11), (12), (14),
(15), (16), (17), or (18) of section 241 (a) of the Immigration and Nationality
Act, then, notwithstanding any other provisions of this title -
"(A)
no monthly benefit under this section or section 223 [42 U.S.C. 423, relating
to "disability insurance benefits"] shall be paid to such individual,
on the basis of his wages and self-employment income, for any month occurring (i) after the month in which [363 U.S. 603, 605]
the Secretary is notified by the Attorney General that such individual
has been so deported, and (ii) before the month in which such individual is
thereafter lawfully admitted to the United States for permanent residence,
"(B)
if no benefit could be paid to such individual (or if no benefit could be paid
to him if he were alive) for any month by reason of subparagraph (A), no
monthly benefit under this section shall be paid, on the basis of his wages and
self-employment income, for such month to any other person who is not a citizen
of the United States and is outside the United States for any part of such
month, and
"(C)
no lump-sum death payment shall be made on the basis
of such individual's wages and self-employment income if he dies (i) in or after the month in which such notice is received,
and (ii) before the month in which he is thereafter lawfully admitted to the
United States for permanent residence.
"Section
203 (b) and (c) of this Act shall not apply with respect to any such individual
for any month for which no monthly benefit may be paid to him by reason of this
paragraph.
"(2)
As soon as practicable after the deportation of any
individual under any of the paragraphs of section 241 (a) of the Immigration
and Nationality Act enumerated in paragraph (1) in this subsection, the
Attorney General shall notify the Secretary of such deportation."
The provisions of 241 (a) of the
Immigration and Nationality Act are summarized in notes 10, 13, post, pp. 618,
620.
[ Footnote 2 ] Under paragraph (1) (B) of 202 (n) (see note 1, ante), appellee's wife, because of her residence here, has
remained eligible for benefits payable to her as the wife of an insured
individual. See 202 (b), 53 Stat. 1364, as amended, 42 U.S.C. 402 (b).
[ Footnote 3 ] Section 205 (g) provides as follows:
"(g)
Any individual, after any final decision of the Board made after a hearing to
which he was a party, irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the
Board may allow. . . . As part of its answer the Board shall file a certified
copy of the transcript of the record including the evidence upon which the
findings and decision complained of are based. The court shall have power to
enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Board, with or without remanding
the cause for a rehearing. The findings of the Board as to any fact, if
supported by substantial evidence, shall be conclusive . . . . The judgment of
the court shall be final except that it shall be subject to review in the same
manner as a judgment in other civil actions."
[ Footnote 4 ] In addition, eligibility for disability insurance benefits
is of course subject to the further condition of the incurring of a disability
as defined in the Act. 223, 42 U.S.C. 423. Secondary
beneficiaries must meet the tests of family relationship to the wage earner set
forth in the Act. 202 (b)-(h), 42 U.S.C. 402 (b)-(h).
[ Footnote 5 ] The Act does not provide for the termination of benefits
of nonresident citizens, or of some aliens who leave the country voluntarily -
although many nonresident aliens do lose their eligibility by virtue of the
provisions of 202 (t), 70 Stat. 835, as amended, 42 U.S.C. 402 (t) - or of
aliens deported pursuant to paragraphs 3, 8, 9, or 13 of the 18 paragraphs of
241 (a) of the Immigration and Nationality Act. See note 13, post.
[ Footnote 6 ] Art. I, 9, cl. 3:
"No
bill of attainder or ex post facto law shall be passed."
Art. III, 2, cl. 3:
"The
trial of all crimes, except in cases of impeachment, shall be by jury; and such
trial shall be held in the State where the said crimes shall have been
committed . . . ."
Amend. VI:
"In
all criminal prosecutions the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favour; and to
have the assistance of counsel for his defence."
[ Footnote 7 ] Appellee also adds, but hardly
argues, the contention that he has been deprived of his rights under the First
Amendment, since the adverse consequences stemmed from "mere past
membership" in the Communist Party. This contention, which is no more than
a collateral attack on appellee's deportation, is not
open to him.
[ Footnote 8 ] See also Pierce v. Carskadon, 16
Wall. 234. A West Virginia statute providing that a nonresident who had
suffered a judgment in an action commenced by attachment, but in which he had
not been personally served and did not appear, could within one year petition
the court for a reopening of the judgment and a trial on the merits, was
amended in 1865 so as to condition that right on the taking of an exculpatory
oath that the defendant had never supported the Confederacy. On the authority
of Cummings and Garland, the amendment was invalidated.
[ Footnote 9 ] As prior decisions make clear, compare Ex parte Garland,
supra, with Hawker v. New York, supra, the severity of a sanction is not
determinative of its character as "punishment."
[ Footnote 10 ] Paragraphs (1), (2), and (10) of 241 (a) relate to
unlawful entry, or entry not complying with certain conditions; paragraphs (6)
and (7) apply to "subversive" and related activities; the remainder
of the included paragraphs are concerned with convictions of designated crimes,
or the commission of acts related to them, such as narcotics addiction or
prostitution.
[ Footnote 11 ] For example, under the House version termination of
benefits of a deportee would also have terminated benefits paid to secondary
beneficiaries based on the earning records of the deportee. The Conference
proposal limited this effect to secondary beneficiaries who were nonresident
aliens. See note 2, ante.
[ Footnote 12 ] Appellee also relies on the
juxtaposition of the proposed 108 and certain other provisions, some of which
were enacted and some of which were not. This argument is too conjectural to
warrant discussion. In addition, reliance is placed on a letter written to the
Senate Finance Committee by appellant's predecessor in office, opposing the
enactment of what is now 202 (u) of the Act, 70 Stat. 838, 42 U.S.C. 402 (u),
on the ground that the section was "in the nature of a penalty and based
on considerations foreign to the objectives" of the program. Social
Security Amendments of 1955, Hearings before the Senate Committee on Finance,
84th Cong., 2d Sess., p. 1319. The Secretary went on to say that "present
law recognizes only three narrowly limited exceptions [of which 202 (n) is one]
to the basic principle that benefits are paid without regard to the attitudes,
opinions, behavior, or personal characteristics of the individual . . . ."
It should be observed, however, that the Secretary did not speak of 202 (n) as
a penalty, as he did of the proposed 202 (u). The latter provision is
concededly penal, and applies only pursuant to a judgment of a court in a
criminal case.
[ Footnote 13 ] They are: (1) persons institutionalized at public expense
within five years after entry because of "mental disease, defect, or
deficiency" not shown to have arisen subsequent to admission ( 241 (a)
(3)); (2) persons becoming a public charge within five years after entry from
causes not shown to have arisen subsequent to admission 241 (a) (8)); (3)
persons admitted as nonimmigrants (see 101 (a) (15),
66 Stat. 167, 8 U.S.C. 1101 (a) (15)) who fail to maintain, or comply with the
conditions of, such status ( 241 (a) (9)); (4) persons knowingly and for gain
inducing or aiding, prior to or within five years after entry, any other alien
to enter or attempt to enter unlawfully ( 241 (a) (13)).
[ Footnote 14 ] Were we to engage in speculation, it would not be
difficult to conjecture that Congress may have been led to exclude these four grounds
of deportation out of compassionate or de minimis
considerations.
MR. JUSTICE BLACK, dissenting.
For the reasons stated here and in the dissents of MR.
JUSTICE DOUGLAS and MR. JUSTICE BRENNAN I agree with the District Court that
the United States is depriving appellee, Ephram Nestor, of his statutory right to old-age benefits
in violation of the United States Constitution.
Nestor came to this country from Bulgaria in 1913 and lived
here continuously for 43 years, until July 1956. He was then deported from this
country for having been a Communist from 1933 to 1939. At that time membership
in the Communist Party as such was not illegal and was not even a statutory
ground for deportation. From December 1936 to January 1955 Nestor and his
employers made regular payments to the Government under the Federal Insurance
Contributions Act, 26 U.S.C. 3101-3125. These funds went to a special federal
old-age and survivors insurance trust fund under 49 Stat. 622, 53 Stat. 1362,
as amended, 42 U.S.C. 401, in return for which Nestor, like millions of others,
expected to receive payments when he reached the statutory age. In 1954, 15
years after Nestor had last been a Communist, and 18 years after he began to
make payments into the old-age security fund, Congress passed a law providing,
among other things, that any person who had been deported from [363 U.S. 603, 622]
this country because of past Communist membership under 66 Stat. 205, 8
U.S.C. 1251 (a) (6) (C) should be wholly cut off from any benefits of the fund
to which he had contributed under the law. 68 Stat. 1083, 42
U.S.C. 402 (n). After the Government deported Nestor in 1956 it notified
his wife, who had remained in this country, that he
was cut off and no further payments would be made to him. This action, it seems
to me, takes Nestor's insurance without just compensation and in violation of
the Due Process Clause of the Fifth Amendment. Moreover, it imposes an ex post
facto law and bill of attainder by stamping him, without a court trial, as
unworthy to receive that for which he has paid and which the Government
promised to pay him. The fact that the Court is sustaining this action
indicates the extent to which people are willing to go these days to overlook
violations of the Constitution perpetrated against anyone who has ever even
innocently belonged to the Communist Party.
I.
In Lynch v. United States, 292 U.S. 571 ,
this Court unanimously held that Congress was without power to repudiate and
abrogate in whole or in part its promises to pay amounts claimed by soldiers
under the War Risk Insurance Act of 1917, 400-405, 40 Stat. 409. This Court
held that such a repudiation was inconsistent with the
provision of the Fifth Amendment that "No person shall be . . . deprived
of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation." The Court
today puts the Lynch case aside on the ground that "It is hardly profitable
to engage in conceptualizations regarding `earned rights' and
`gratuities.'" From this sound premise the Court goes on to say that while
"The `right' to Social Security benefits is in one sense `earned,'" [363 U.S. 603, 623] yet the Government's insurance scheme now
before us rests not on the idea of the contributors to the fund earning
something, but simply provides that they may "justly call" upon the
Government "in their later years, for protection from `the rigors of the
poor house as well as from the haunting fear that such a lot awaits them when
journey's end is near.'" These are nice words but they cannot conceal the
fact that they simply tell the contributors to this insurance fund that despite
their own and their employers' payments the Government, in paying the
beneficiaries out of the fund, is merely giving them something for nothing and
can stop doing so when it pleases. This, in my judgment, reveals a complete
misunderstanding of the purpose Congress and the country had in passing that
law. It was then generally agreed, as it is today, that it is not desirable
that aged people think of the Government as giving them something for nothing.
An excellent statement of this view, quoted by MR. JUSTICE DOUGLAS in another
connection, was made by Senator George, the Chairman of the Finance Committee
when the Social Security Act was passed, and one very familiar with the
philosophy that brought it about:
"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. [363 U.S. 603, 624]
The people covered by this Act are
now able to rely with complete assurance on the fact that they will be
compelled to contribute regularly to this fund whenever each contribution falls
due. I believe they are entitled to rely with the same assurance on getting the
benefits they have paid for and have been promised, when their disability or
age makes their insurance payable under the terms of the law. The Court did not
permit the Government to break its plighted faith with the soldiers in the
Lynch case; it said the Constitution forbade such governmental conduct. I would
say precisely the same thing here.
The Court consoles those whose insurance is taken away
today, and others who may suffer the same fate in the future, by saying that a
decision requiring the Social Security system to keep faith "would deprive
it of the flexibility and boldness in adjustment to ever-changing conditions
which it demands." People who pay premiums for insurance usually think
they are paying for insurance, not for "flexibility and boldness." I
cannot believe that any private insurance company in America would be permitted
to repudiate its matured contracts with its policyholders who have regularly
paid all their premiums in reliance upon the good faith of the company. It is
true, as the Court says, that the original Act contained a clause, still in force,
that expressly reserves to Congress "[t]he right to alter, amend, or
repeal any provision" of the Act. 1104, 49 Stat. 648, 42
U.S.C. 1304. Congress, of course, properly retained that power. It could
repeal the Act so as to cease to operate its old-age insurance activities for
the future. This means that it could stop covering new people, and even stop
increasing its obligations to its old contributors. But that is quite different
from disappointing the just expectations of the contributors to the fund which
the Government has compelled [363 U.S.
603, 625] them and their
employers to pay its Treasury. There is nothing "conceptualistic"
about saying, as this Court did in Lynch, that such a taking as this the
Constitution forbids.
II.
In part II of its opinion, the Court throws out a line of
hope by its suggestion that if Congress in the future cuts off some other group
from the benefits they have bought from the Government, this Court might
possibly hold that the future hypothetical act violates the Due Process Clause.
In doing so it reads due process as affording only minimal protection, and
under this reading it will protect all future groups from destruction of their
rights only if Congress "manifests a patently arbitrary classification,
utterly lacking in rational justification." The Due Process Clause so
defined provides little protection indeed compared with the specific safeguards
of the Constitution such as its prohibitions against taking private property
for a public use without just compensation, passing ex post facto laws, and
imposing bills of attainder. I cannot agree, however, that the Due Process
Clause is properly interpreted when it is used to subordinate and dilute the
specific safeguards of the Bill of Rights, and when "due process"
itself becomes so wholly dependent upon this Court's idea of what is
"arbitrary" and "rational." See Levine v. United States, 362 U.S.
610, 620 (dissenting opinion); Adamson v. California, 332 U.S. 46,
89 -92 (dissenting opinion); Rochin v.
California, 342 U.S.
165, 174 (concurring opinion). One reason for my belief in this respect is
that I agree with what is said in the Court's quotation from Helvering v. Davis, 301 U.S.
619, 644 :
"Whether
wisdom or unwisdom resides in the scheme of benefits
set forth in Title II, it is not for [363
U.S. 603, 626] us to say.
The answer to such inquiries must come from Congress, not the courts. Our
concern here, as often, is with power, not with wisdom."
And yet the Court's assumption of
its power to hold Acts unconstitutional because the Court thinks they are
arbitrary and irrational can be neither more nor less than a judicial foray
into the field of governmental policy. By the use of this due process formula
the Court does not, as its proponents frequently proclaim, abstain from
interfering with the congressional policy. It actively enters that field with
no standards except its own conclusion as to what is "arbitrary" and
what is "rational." And this elastic formula gives the Court a
further power, that of holding legislative Acts
constitutional on the ground that they are neither arbitrary nor irrational,
even though the Acts violate specific Bill of Rights safeguards. See my dissent
in Adamson v. California, supra. Whether this Act had "rational
justification" was, in my judgment, for Congress; whether it violates the
Federal Constitution is for us to determine, unless we are by circumlocution to
abdicate the power that this Court has been held to have ever since Marbury v. Madison, 1 Cranch 137.
III.
The Court in part III of its opinion holds that the 1954 Act
is not an ex post facto law or bill of attainder even though it creates a class
of deportees who cannot collect their insurance benefits because they were once
Communists at a time when simply being a Communist was not illegal. The Court
also puts great emphasis on its belief that the Act here is not punishment.
Although not believing that the particular label "punishment" is of
decisive importance, I think the Act does impose punishment even in a classic
sense. The basic reason for [363 U.S.
603, 627] Nestor's loss of
his insurance payments is that he was once a Communist. This man, now 69 years
old, has been driven out of the country where he has lived for 43 years to a
land where he is practically a stranger, under an Act authorizing his
deportation many years after his Communist membership. Cf. Galvan v. Press, 347 U.S.
522, 532 , 533 (dissenting opinions). Now a
similar ex post facto law deprives him of his insurance, which, while petty and
insignificant in amount to this great Government, may well be this exile's
daily bread, for the same reason and in accord with the general fashion of the
day - that is, to punish in every way possible anyone who ever made the mistake
of being a Communist in this country or who is supposed ever to have been
associated with anyone who made that mistake. See, e. g., Barenblatt
v. United States, 360 U.S. 109 , and Uphaus v. Wyman, 360 U.S. 72 .
In United States v. Lovett, 328 U.S.
303, 315 -316, we said:
".
. . legislative acts, no matter what their form, that
apply either to named individuals or to easily ascertainable members of a group
in such a way as to inflict punishment on them without a judicial trial are
bills of attainder prohibited by the Constitution."
Faithful
observance of our holdings in that case, in Ex parte Garland, 4 Wall. 333, and in Cummings v. Missouri, 4 Wall.
277, would, in my judgment, require us to hold that the 1954 Act is a bill of
attainder. It is a congressional enactment aimed at an easily ascertainable
group; it is certainly punishment in any normal sense of the word to take away
from any person the benefits of an insurance system into which he and his
employer have paid their moneys for almost two decades; and it does all this
without a trial according to due process of law. It is true that the Lovett,
Cummings and Garland Court opinions were [363
U.S. 603, 628] not
unanimous, but they nonetheless represent positive precedents on highly
important questions of individual liberty which should not be explained away
with cobwebbery refinements. If the Court is going to
overrule these cases in whole or in part, and adopt the views of previous
dissenters, I believe it should be done clearly and forthrightly.
A basic constitutional infirmity of this Act, in my
judgment, is that it is a part of a pattern of laws all of which violate the
First Amendment out of fear that this country is in grave danger if it lets a
handful of Communist fanatics or some other extremist group make their
arguments and discuss their ideas. This fear, I think, is baseless. It reflects
a lack of faith in the sturdy patriotism of our people and does not give to the
world a true picture of our abiding strength. It is an unworthy fear in a
country that has a Bill of Rights containing provisions for fair trials,
freedom of speech, press and religion, and other specific safeguards designed
to keep men free. I repeat once more that I think this Nation's greatest
security lies, not in trusting to a momentary majority of this Court's view at
any particular time of what is "patently arbitrary," but in
wholehearted devotion to and observance of our constitutional freedoms. See Wieman v. Updegraff, 344 U.S.
183, 192 (concurring opinion).
I would affirm the judgment of the District Court which held
that Nestor is constitutionally entitled to collect his insurance.
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 [363 U.S. 603, 629] and for Social Security benefits in
November 1955 and was awarded $55.60 per month. 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.
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, 1
".
. . 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." [363
U.S. 603, 630]
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, at 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 322. In that case it was
barring a priest from practicing his profession. In Ex parte
Garland, 4 Wall. 333, it was excluding a man from practicing law in the
federal courts. In United States v. Lovett, 328 U.S. 303 , 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 2 - "to reprimand the wrongdoer, to deter
others." Trop v. Dulles, 356 U.S. 86, 96 . [363 U.S. 603, 631]
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 . The funds are placed in the Federal
Old-Age and Survivors Insurance Trust Fund, 42 U.S.C. 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 [363 U.S. 603,
632] 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 [363 U.S. 603, 633]
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 old-age 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 3 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 [363 U.S. 603, 634] 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. 4 I would affirm this judgment.
[ Footnote 1 ] Address entitled Bills of Attainder in 1787 and Today.
Columbia Law Review dinner 1954, published in 1959 by the Emergency Civil
Liberties Committee, under the title Congressional Investigations and Bills of
Attainder.
[ Footnote 2 ] The broad sweep of the idea of punishment behind the
concept of the bill of attainder was stated as follows by Irving Brant, op. cit.,
supra, note 1, 9-10:
"In
1794 the American people were in a state of excitement comparable to that which
exists today. Supporters of the French Revolution had organized the Democratic
Societies - blatantly adopting that subversive title. Then the Whisky Rebellion
exploded in western Pennsylvania. The Democratic Societies were blamed. A
motion censuring the Societies was introduced in the House of Representatives.
"There,
in 1794, you had the basic division in American thought - on one side the
doctrine of political liberty for everybody, with collective security resting
on the capacity of the people for self-government; on the other side the
doctrine that the people could not be trusted and political liberty must be
restrained.
"James
Madison challenged this latter doctrine. The investigative power of Congress
over persons, he contended, was limited to inquiry into the conduct of
individuals in the public service. `Opinions,' he said, `are not the subjects
of legislation.' Start criticizing people for abuse of their reserved rights,
and the censure might extend to freedom [363
U.S. 603, 631] of speech
and press. What would be the effect on the people thus condemned? Said Madison:
"`It
is in vain to say that this indiscriminate censure is no punishment. . . . Is
not this proposition, if voted, a bill of attainder?'
"Madison
won his fight, not because he called the resolution a bill of attainder, but
because it attainted too many men who were going to vote in the next election.
The definition, however, was there - a bill of attainder - and the definition was given by the foremost American authority on the
principles of liberty and order underlying our system of government."
[ Footnote 3 ] The three exceptions referred to were (1) 202 (n); (2) Act
of September 1, 1954, 68 Stat. 1142, 5 U.S.C. 2281-2288; (3) Regulation of the
Social Security Administration, 20 CFR 403.409 - denying dependent's benefits
to a person found guilty of felonious homicide of the insured worker.
[ Footnote 4 ] Brant, op. cit., supra, note 1, states at p. 9:
"What
were the framers aiming at when they forbade bills of attainder? They were, of
course, guarding against the religious passions that disgraced Christianity in
Europe. But American bills of attainder, just before 1787, were typically used
by Revolutionary assemblies to rid the states of British Loyalists. By a
curious coincidence, it was usually the Tory with a good farm who was sent into
exile, and all too often it was somebody who wanted that farm who induced the
legislature to attaint him. Patriotism could serve as
a cloak for greed as easily as religion did in that Irish Parliament of James
the Second.
"But
consider a case in which nothing could be said against the motive. During the
Revolution, Governor Patrick Henry induced the Virginia legislature to pass a
bill of attainder condemning Josiah Phillips to death. He was a traitor, a
murderer, a pirate and an outlaw. When ratification of the new Constitution
came before the Virginia Convention, Henry inveighed against it because it
contained no Bill of Rights. Edmund Randolph taunted him with his sponsorship
of the Phillips bill of attainder. Henry then made the blunder of defending it.
The bill was warranted, he said, because Phillips was no Socrates. That
shocking defense of arbitrary condemnation may have produced the small margin
by which the Constitution was ratified."
MR.
JUSTICE BRENNAN, with whom THE CHIEF
JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.
When Nestor quit the Communist Party in 1939 his past
membership was not a ground for his deportation. Kessler v. Strecker,
307 U.S. 22 . It was not until a year later that past membership
was made a specific ground for deportation. 1 This past membership has cost Nestor [363 U.S. 603, 635] dear. It brought him
expulsion from the country after 43 years' residence - most of his life. Now
more is exacted from him, for after he had begun to receive benefits in 1955 -
having worked in covered employment the required time and reached age 65 - and
might anticipate receiving them the rest of his life, the benefits were stopped
pursuant to 202 (n) of the Amended Social Security Act. 2 His predicament is very real - an aging man
deprived of the means with which to live after being separated from his family
and exiled to live among strangers in a land he quit 47 years ago. The common
sense of it is that he has been punished severely for his past conduct.
Even the 1950 statute deporting aliens for past membership
raised serious questions in this Court whether the prohibition against ex post facto
laws was violated. In Galvan v. Press, 347 U.S.
522, 531 , we said "since the intrinsic
consequences of deportation are so close to punishment for crime, it might
fairly be said also that the ex post facto Clause, even though applicable only
to punitive legislation, should be applied to deportation." However,
precedents which treat deportation not as punishment, but as a permissible
exercise of congressional power to enact the conditions under which aliens may [363 U.S. 603, 636] come to and remain in this country,
governed the decision in favor of the constitutionality of the statute.
However, the Court cannot rest a decision that 202 (n) does not impose punishment on Congress' power to regulate
immigration. It escapes the common-sense conclusion that Congress has imposed
punishment by finding the requisite rational nexus to a granted power in the
supposed furtherance of the Social Security program "enacted pursuant to Congress'
power to `spend money in aid of the "general welfare."'" I do
not understand the Court to deny that but for that connection, 202 (n) would
impose punishment and not only offend the constitutional prohibition on ex post
facto laws but also violate the constitutional guarantees against imposition of
punishment without a judicial trial.
The Court's test of the constitutionality of 202 (n) is
whether the legislative concern underlying the statute was to regulate
"the activity or status from which the individual is barred" or
whether the statute "is evidently aimed at the person or class of persons
disqualified." It rejects the inference that the statute is "aimed at
the person or class of persons disqualified" by relying upon the
presumption of constitutionality. This presumption might be a basis for
sustaining the statute if in fact there were two opposing inferences which
could reasonably be drawn from the legislation, one that it imposes punishment
and the other that it is purposed to further the administration of the Social
Security program. The Court, however, does not limit the presumption to that
use. Rather the presumption becomes a complete substitute for any supportable
finding of a rational connection of 202 (n) with the Social Security program.
For me it is not enough to state the test and hold that the presumption alone
satisfies it. I find it necessary to examine the Act and its consequences to
ascertain whether there [363 U.S. 603,
637] is ground for the
inference of a congressional concern with the administration of the Social
Security program. Only after this inquiry would I consider the application of
the presumption.
The Court seems to acknowledge that the statute bears
harshly upon the individual disqualified, but states that this is permissible
when a statute is enacted as a regulation of the activity. But surely the
harshness of the consequences is itself a relevant consideration to the inquiry
into the congressional purpose. 3 Cf. Trop v. Dulles, 356 U.S. 86,
110 (concurring opinion).
It seems to me that the statute itself shows that the sole
legislative concern was with "the person or class of persons
disqualified." Congress did not disqualify for benefits all beneficiaries
residing abroad or even all dependents residing abroad who are aliens. If that
had been the case I might agree that Congress' concern would have been with
"the activity or status" and not with the "person or class of
persons disqualified." The scales would then be tipped toward the
conclusion that Congress desired to limit benefit payments to beneficiaries
residing in the United States so that the American economy would be aided by
expenditure of benefits here. Indeed a proposal along those lines was submitted
to Congress in [363 U.S. 603, 638] 1954, at the same time 202 (n) was
proposed, 4 and it was rejected. 5
Perhaps, the Court's conclusion that regulation of "the
activity or status" was the congressional concern would be a fair
appraisal of the statute if Congress had terminated the benefits of all alien
beneficiaries who are deported. But that is not what Congress did. Section 202
(n) applies only to aliens deported on one or more of 14 of the 18 grounds for
which aliens may be deported. 6
H. R. Rep. No. 1698, 83d Cong., 2d Sess. 25, 77, cited by
the Court, describes 202 (n) as including persons who were deported
"because of unlawful entry, conviction of a crime, or subversive
activity." The section, in addition, covers those deported for such
socially condemned acts as narcotic addiction or prostitution. The common
element of the 14 grounds is that the alien has been guilty of some blameworthy
conduct. In other words Congress worked its will only on aliens deported for
conduct displeasing to the lawmakers.
This is plainly demonstrated by the remaining four grounds
of deportation, those which do not result in the cancellation of benefits. 7 Two of those four grounds cover persons who
become public charges within five years after entry for reasons which predated
the entry. A third ground covers the alien who fails to maintain his nonimmigrant
status. The fourth ground reaches the alien who, prior to or within five years
after entry, aids other aliens to enter the country illegally.
Those who are deported for becoming public charges clearly
have not, by modern standards, engaged in conduct worthy of censure. The
Government's suggestion [363 U.S. 603,
639] that the reason for
their exclusion from 202 (n) was an unarticulated feeling of Congress that it
would be unfair to the "other country to deport such destitute persons
without letting them retain their modicum of social security benefits"
appears at best fanciful, especially since, by hypothesis, they are deportable
because the conditions which led to their becoming public charges existed prior
to entry.
The exclusion from the operation of 202 (n) of aliens
deported for failure to maintain nonimmigrant status rationally can be
explained, in the context of the whole statute, only as evidencing that
Congress considered that conduct less blameworthy. Certainly the Government's
suggestion that Congress may have thought it unlikely that such persons would
work sufficient time in covered employment to become eligible for Social
Security benefits cannot be the reason for this exclusion. For frequently the
very act which eventually results in the deportation of persons on that ground
is the securing of private employment. Finally, it is impossible to reconcile
the continuation of benefits to aliens who are deported for aiding other aliens
to enter the country illegally, except upon the ground that Congress felt that
their conduct was less reprehensible. Again the Government's suggestion that
the reason might be Congress' belief that these aliens would not have worked in
covered employment must be rejected. Five years after entry would be ample time
within which to secure employment and qualify. Moreover the same five-year
limitation applies to several of the 14 grounds of deportation for which aliens
are cut off from benefits and the Government's argument would apply equally to
them if that in fact was the congressional reason.
This appraisal of the distinctions drawn by Congress between
various kinds of conduct impels the conclusion, beyond peradventure that the
distinctions can be [363 U.S. 603, 640]
understood only if the purpose
of Congress was to strike at "the person or class of persons
disqualified." The Court inveighs against invalidating a statute on
"implication and vague conjecture." Rather I think the Court has
strained to sustain the statute on "implication and vague
conjecture," in holding that the congressional concern was "the
activity or status from which the individual is barred." Today's decision
sanctions the use of the spending power not to further the legitimate
objectives of the Social Security program but to inflict hurt upon those who by
their conduct have incurred the displeasure of Congress. The Framers ordained
that even the worst of men should not be punished for their past acts or for
any conduct without adherence to the procedural safeguards written into the
Constitution. Today's decision is to me a regretful retreat from Lovett,
Cummings and Garland.
Section 202 (n) imposes punishment in violation of the
prohibition against ex post facto laws and without a judicial trial. 8 I therefore dissent.
[ Footnote 1 ] The Alien Registration Act, 1940, 54 Stat. 673, made
membership in an organization which advocates the overthrow of the Government
of the United States by force or violence a ground for deportation even though
the membership was terminated prior to [363
U.S. 603, 635] the passage
of that statute. See Harisiades v. Shaughnessy, 342 U.S. 580 . Until the passage of the Internal Security Act of
1950, 64 Stat. 1006, 1008, it was necessary for the Government to prove in each
case in which it sought to deport an alien because of membership in the
Communist Party that that organization in fact advocated the violent overthrow
of the Government. The 1950 Act expressly made deportable aliens who at the
time of entry, or at any time thereafter were "members of or affiliated with
. . . the Communist Party of the United States." See Galvan v. Press, 347 U.S.
522, 529 .
[ Footnote 2 ] A comparable annuity was worth, at the time appellee's benefits were canceled, approximately $6,000. To
date he has lost nearly $2,500 in benefits.
[ Footnote 3 ] The Court, recognizing that Cummings v.
Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall.
333, strongly favor the conclusion that 202 (n) was enacted with punitive
intent, rejects the force of those precedents as drawing "heavily on the
Court's first-hand acquaintance with the events and the mood of the then recent
Civil War, and `the fierce passions which that struggle aroused.'" This
seems to me to say that the provision of 202 (n) which cuts off benefits from
aliens deported for past Communist Party membership was not enacted in a
similar atmosphere. Our judicial detachment from the realities of the national
scene should not carry us so far. Our memory of the emotional climate stirred
by the question of communism in the early 1950's cannot be so short.
[ Footnote 4 ] See H. R. Rep. No. 1698, 83d Cong., 2d Sess. 24-25.
[ Footnote 5 ] See S. Rep. No. 1987, 83d Cong., 2d Sess. 23; H. R. Conf.
Rep. No. 2679, 83d Cong., 2d Sess. 4.
[ Footnote 6 ] See Court's opinion, ante, note
1.
[ Footnote 7 ] See the Court's opinion, ante, note
13.
[ Footnote 8 ] It is unnecessary for me to reach the question whether the
statute also constitutes a bill of attainder. [363 U.S. 603, 641]