Carlson v. Landon
342 U.S. 524 (1952)

Annotate this Case

U.S. Supreme Court

Carlson v. Landon, 342 U.S. 524 (1952)

Carlson v. Landon

No. 35

Argued November 26, 1951

Decided March 10, 1952*

342 U.S. 524

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

1. Under § 20(a) of the Immigration Act, as amended by § 23 of the Internal Security Act, the Attorney General may, in his discretion, hold in custody without bail, pending determination as to their deportability, aliens who are members of the Communist Party of the United States when there is reasonable cause to believe that their release on bail would endanger the safety and welfare of the United States. Pp. 342 U. S. 526-547.

2. The lack of a clause in the Constitution specifically empowering such action does not render Congress impotent to require the expulsion of resident alien Communists. Pp. 342 U. S. 533-537.

(a) So long as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders. P. 342 U. S. 534.

(b) The doctrines and practices of Communism teach the use of force to achieve political control clearly enough to give constitutional basis, according to any theory of reasonableness or arbitrariness, for Congress to expel known alien Communists. Pp. 342 U. S. 534-536.

3. Under orders from the Acting Commissioner of Immigration, certain aliens were arrested under warrants issued after enactment of the Internal Security Act, charging them with being members of the Communist Party and directing that they be held in custody pending determination of deportability. They petitioned for habeas corpus. Respondent filed returns alleging that there was reasonable cause to believe that their release would endanger the welfare and safety of the United States. Later, he filed affidavits that the Service had evidence indicating that each petitioner was,

Page 342 U. S. 525

at the time of arrest, a member of the Communist Party, and had, since 1930, participated, or was then actively participating, in the Party's indoctrination of others to the prejudice of the public interest.

Held:

(a) The refusal of bail in these cases was not arbitrary or capricious, or an abuse of power, and did not violate the Due Process Clause of the Fifth Amendment. Pp. 342 U. S. 537-542.

(1) The discretion as to bail vested in the Attorney General by the Internal Security Act was broad enough to justify petitioners' detention without bail as a menace to the public interest. Pp. 342 U. S. 537-541.

(2) There is no denial of due process under the Fifth Amendment in the detention of alien Communists without bail, pending determination of deportability, where there is reasonable cause to believe that their release on bail would endanger the safety and welfare of the United States. Pp. 342 U. S. 541-542.

(b) The delegation to the Attorney General of discretionary authority to detain such aliens without bail pending deportation hearings does not constitute an unlawful delegation of legislative power or violate the Due Process Clause of the Fifth Amendment, because the statute contains definite legislative standards for deportation and such authority is to be exercised within the framework of the Subversive Activities Control Act to guard against Communist activities pending deportation hearings. Pp. 342 U. S. 542-544.

(c) The Eighth Amendment does not require that bail be allowed in the circumstances of these cases. Pp. 342 U. S. 544-546.

4. Prior to enactment of the Internal Security Act, an alien Communist was arrested under a warrant charging that he was subject to deportation as an alien member of an organization advocating the violent overthrow of the Government, but he was released on bail. After the effective date of the Act, he was again taken into custody under the same warrant, and held without bail under an order from the Acting Commissioner of Immigration, based on §§ 22 and 23 of the Internal Security Act.

Held: he must be released unless, within a reasonable time, in the discretion of the court, he is rearrested under a new warrant. Pp. 342 U. S. 531, 342 U. S. 546-547.

187 F.2d 991, affirmed.

187 F.2d 802, judgment vacated and cause remanded.

No. 35. In habeas corpus proceedings, a district court held that respondent had not abused his discretion in ordering petitioners held without bail pending deportation

Page 342 U. S. 526

hearings. 94 F.Supp. 18. The Court of Appeals reversed. 186 F.2d 183. On rehearing and after introduction of certain evidence, the district court again sustained petitioners' detention without bail. The Court of Appeals affirmed. 187 F.2d 991. This Court granted certiorari. 342 U.S. 807. Affirmed, p. 342 U. S. 547.

No. 136. In a habeas corpus proceeding, the district court sustained detention of respondent without bail pending determination of deportability. The Court of Appeals reversed. 187 F.2d 802. This Court granted certiorari. 342 U.S. 810. Judgment vacated and cause remanded, p. 342 U. S. 547.

MR. JUSTICE REED delivered the opinion of the Court.

These cases present a narrow question with several related issues. May the Attorney General, as the executive head of the Immigration and Naturalization Service, [Footnote 1] after taking into custody active alien communists on warrants, [Footnote 2] charging either membership in a group that advocates

Page 342 U. S. 527

the overthrow by force of this Government [Footnote 3] or inclusion in any prohibited classes of aliens, [Footnote 4] continue them in custody without bail at his discretion pending determination as to their deportability, under § 23 of the

Page 342 U. S. 528

Internal Security Act? [Footnote 5] Differing views of the Courts of Appeals led us to grant certiorari. 342 U.S. 807.

I. Facts. -- The four petitioners in case No. 35 were arrested under warrants, issued after the enactment of the Internal Security Act of 1950, charging each with being an alien who was a member of the Communist Party of the United States. [Footnote 6] The warrants directed that they be held in custody [Footnote 7] pending determination

Page 342 U. S. 529

of deportability. [Footnote 8] Petitions for habeas corpus were promptly filed alleging that the detention without bond was in violation of the Due Process Clause of the Fifth Amendment [Footnote 9] and the Eighth Amendment to the Constitution of the United States, and that § 20 of the Immigration Act, as amended, was also unconstitutional. Seenote 5supra. The allegation appears below. [Footnote 10]

Respondent filed returns defending his orders of detention on the ground that there was reasonable cause to believe that petitioners' release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. These returns were countered by petitioners with allegations of their many years' residence spent in this country without giving basis for fear of action by them inimical to the public welfare during the pendency of their deportation proceedings,

Page 342 U. S. 530

their integration into community life through marriage and family connections, and their meticulous adherence to the terms of previous bail, allowed under a former warrant charging deportability. Seenote 8supra. On consideration of these undenied allegations, the trial court determined that the Director had not been shown to have abused his discretion. [Footnote 11] This order was reversed on the ground that the Director

"must state some fact upon which a reasonable person could logically conclude that the denial of bail is required to protect the country or to secure the alleged alien's presence for deportation should an order to that effect be the result of the hearing. [Footnote 12]"

On rehearing, the Director made allegation, supported by affidavits, that the Service's dossier of each petitioner contained evidence indicating to him that each was, at the time of arrest, a member of the Communist Party of the United States, and had, since 1930, participated, or was then actively participating, in the Party's indoctrination of others to the prejudice of the public interest. There was no denial of these allegations by any of the petitioners, except Hyun, or any assertion that any of them had completely severed all Communist affiliations or connections. [Footnote 13] As to Hyun, the denial was formal, and did not include any affidavit denying the facts stated in the Director's affidavit. As the allegations are set out by the Court of Appeals in the carefully detailed opinion of Circuit Judge Stephens, we refrain from any further restatement

Page 342 U. S. 531

here. [Footnote 14] The Court of Appeals affirmed the District Court's determination that there was substantial evidence to support the discretion exercised in denying bail.

Respondent Zydok, in case No. 136, was arrested in August, 1949, under a recent warrant charging that he was subject to deportation as an alien with membership in an organization advocating the violent overthrow of the Government. Act of October 16, 1918, as amended, 8 U.S.C. (1946 ed.) § 137. At that time, he was released on $2,000 bail. Later, a deportation hearing was held by the Immigration and Naturalization Service, but this Court's decision in Wong Yang Sung v. McGrath,339 U. S. 33, necessitated a second deportation hearing.

After the effective date, September 23, 1950, of the Internal Security Act of 1950, 64 Stat. 987, respondent was again taken into custody by petitioner on the 1949 warrant, pursuant to radiogram direction from the Acting Commissioner of Immigration and Naturalization referring to § 20 of the Immigration Act of 1917, as amended by § 23 of the Internal Security Act. The respondent was held without bail by petitioner under an order from the Acting Commissioner of Immigration. The rearrest was based on § 22 of the Internal Security Act of 1950, which provides for the deportation of aliens who are members of or affiliated with the Communist Party. 8 U.S.C. (Supp. IV) § 137.

Thereupon, respondent filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Michigan, challenging the validity of his detention without bail. The District Court found that petitioner was an alien. and had been and was, on arrest, a member of the Communist Party. The court determined

Page 342 U. S. 532

that there had been no abuse of administrative discretion in refusing bail and denied the petition for habeas corpus, 94 F.Supp. 338. [Footnote 15]

The Court of Appeals for the Sixth Circuit, 187 F.2d 802, reversed the District Court, holding that, in determining denial of bail, the Attorney General could not rest on membership alone in the Communist Party, but was under the duty to consider also the likelihood that the alien would appear when ordered to do so under the circumstances as developed in the habeas corpus hearing. The court thought the failure of the Attorney General to allow bail was an abuse of discretion.

That court agreed that the District Court was correct in finding that Zydok was a member of the Communist Party, and had been, in 1949, the financial secretary of its Hamtramck Division. The respondent's testimony justifies the District Court's finding set out in the margin. [Footnote 16] The record shows other information in the files of the Attorney General, such as attendance at closed meetings of the Party and the Michigan State Convention. The opinion succinctly sets out the facts concerning respondent's integration into American life. We adopt that statement. [Footnote 17] It was said:

"Discretion does not mean decision upon one particular fact or set of facts. It means, rather, a just

Page 342 U. S. 533

and proper decision in view of all the attending circumstances. The Styria v. Morgan,186 U. S. 1, 186 U. S. 9. There are many circumstances which involve decision."

187 F.2d 802, 803. The Court of Appeals concluded:

"We think that a fair consideration of the factors above set out, in their aggregate, require that appellant should have been granted bail in some reasonable amount. This view is more nearly in accordance with the spirit of our institutions as it relates even to those who seek protection from the laws which they incongruously seek to destroy. See Carlson v. Landon, Dist. Director, 186 F.2d 183; United States ex rel. Potash v. Dist. Director, 169 F.2d 747, 752."

187 F.2d 804.

II. The Issues. -- Petitioners in No. 35, the Carlson case, and respondent in No. 136, the Zydok case, seek, respectively, reversal or affirmance, principally on the same grounds. It is urged that the denial of bail to each was arbitrary and capricious, a violation of the Fifth Amendment;

Page 342 U. S. 534

that, where there is no evidence to justify a fear of unavailability for the hearings or for the carrying out of a possible judgment of deportation, denial of bail under the circumstances of these cases is an abuse of discretion, and violates a claimed right to reasonable bail secured by the Eighth Amendment to the Constitution. Zydok urges also that there was an abuse of discretion in rearresting him when there was no change of circumstances after his previous release under bond on the same warrant. There are other minor contentions as to irregularities in the proceedings that appear to us immaterial to our consideration of these cases.

The basis for the deportation of presently undesirable aliens resident in the United States is not questioned, and requires no reexamination. When legally admitted, they have come at the Nation's invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land. As such visitors and foreign nationals, they are entitled, in their persons and effects, to the protection of our laws. So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders. [Footnote 18]

Changes in world politics and in our internal economy bring legislative adjustments affecting the rights of various classes of aliens to admission and deportation. [Footnote 19] The

Page 342 U. S. 535

passage of the Internal Security Act of 1950 marked such a change of attitude toward alien members of the Communist Party of the United States. Theretofore, there was a provision for the deportation of alien anarchists and other aliens who are or were members of organizations devoted to the overthrow by force and violence of the Government of the United States, but the Internal Security Act made Communist membership alone of aliens a sufficient ground for deportation. [Footnote 20] The reasons for the exercise of power are summarized in Title I of the Internal Security Act. It is sufficient here to print § 2(15). [Footnote 21] We have no doubt that the doctrines and practices of

Page 342 U. S. 536

Communism clearly enough teach the use of force to achieve political control to give constitutional basis, according to any theory of reasonableness or arbitrariness, for Congress to expel known alien communists under its power to regulate the exclusion, admission and expulsion of aliens. [Footnote 22] Congress had before it evidence of resident aliens' leadership in communist domestic activities sufficient to furnish reasonable ground for action against alien resident Communists. The bar against the admission of Communists cannot be differentiated as a matter of power from that against anarchists upheld unanimously half a century ago in the exclusion of Turner. [Footnote 23] Since

"[i]t is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful, [Footnote 24]"

the fact that petitioners, and respondent Zydok, were made deportable after entry is immaterial. They are deported for what they are now, not for what they were. [Footnote 25] Otherwise, when an alien once legally became a denizen of this country, he could not be deported

Page 342 U. S. 537

for any reason of which he had not been forewarned at the time of entry. Mankind is not vouchsafed sufficient foresight to justify requiring a country to permit its continuous occupation in peace or war by legally admitted aliens, even though they never violate the laws in effect at their entry. The protection of citizenship is open to those who qualify for its privileges. The lack of a clause in the Constitution specifically empowering such action has never been held to render Congress impotent to deal as a sovereign with resident aliens. [Footnote 26]

III. Constitutionality. -- A. Arbitrary, capricious, abuse of discretion. -- The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, "with such opportunity for judicial review of their action as congress may see fit to authorize or permit." This power is, of course, subject to judicial intervention under the "paramount law of the constitution." [Footnote 27]

Deportation is not a criminal proceeding, and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution. [Footnote 28] Since deportation is a particularly drastic remedy where aliens have

Page 342 U. S. 538

become absorbed into our community life, [Footnote 29] congress has been careful to provide for full hearing by the Immigration and Naturalization Service before deportation. Such legislative provision requires that those charged with that responsibility exercise it in a manner consistent with due process. [Footnote 30] Detention is necessarily a part of this deportation procedure. Otherwise, aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings. Of course, purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney General to detain aliens without bail, as set out in note 5supra. [Footnote 31]

The change in language seems to have originated in H.R. 10, 81st Cong., 1st Sess., introduced by Representative Sam Hobbs of Alabama on January 3, 1949. It was

Page 342 U. S. 539

intended to clarify the procedure in dealing with deportees and to "expressly authorize the Attorney General, in his discretion, to hold arrested aliens in custody." [Footnote 32] The need for clarification arose from varying interpretations of the authority to grant bail under the former bail provision. Note 31supra. In Prentis v. Manoogian, 16 F.2d 422, 424, the Court of Appeals for the Sixth Circuit had held that, by the earlier provision,

"Congress intended to grant to the alien a right, and that its failure to follow with some such phrase as 'at the discretion of the commissioner' vests the discretion to avail himself of the opportunity afforded in the alien, and not the discretion to allow bail in the commissioner or director."

On the other hand, in United States ex rel. Zapp v. District Director, 120 F.2d 762, the Court of Appeals for the Second Circuit construed the provision to the contrary. It said:

"The natural interpretation of the language used, that the alien 'may be released under a bond,' would indicate that the release is discretionary with the Attorney General, and that appears to be borne out by other provisions of this section, as well as other sections of the immigration laws, where the choice of words appears to have significance."

120 F.2d at 765.

In the later case of United States ex rel. Potash v. District Director, 169 F.2d 747, the same court applied its Zapp opinion to explain that the Service's discretion as to bail was not untrammeled, but subject to judicial review. [Footnote 33] It

Page 342 U. S. 540

was in the light of these cases that Congress inserted in the bail provisions the phrase "in the discretion of the Attorney General," the lack of which very phrase the Manoogian case held made bail a right of the detained alien. The present statute does not grant bail as a matter of right.

The Government does not urge that the Attorney General's discretion is not subject to any judicial review, but merely that his discretion can be overturned only on a showing of clear abuse. [Footnote 34] We proceed on the basis suggested by the Government. It is first to be observed that the language of the reports is emphatic in explaining Congress' intention to make the Attorney General's exercise of discretion presumptively correct, and unassailable except for abuse. We think the discretion reposed in the Attorney General is at least as great as that found by the Second Circuit in the Potash case, supra, to be in him under the former bail provision. It can only be

Page 342 U. S. 541

overridden where it is clearly shown that it "was without a reasonable foundation."

The four petitioners in the Carlson case were active in Communist work. In the Zydok case, the only evidence is membership in the Party, attendance at closed sessions, and the holding of the office of financial secretary of its Hamtramck Division. This evidence goes beyond unexplained membership, and shows a degree, minor perhaps in Zydok's case, of participation in Communist activities. As the purpose of the Internal Security Act to deport all alien Communists as a menace to the security of the United States is established by the Internal Security Act itself, Title I, § 2, we conclude that the discretion as to bail in the Attorney General was certainly broad enough to justify his detention to all these parties without bail as a menace to the public interest. As all alien Communists are deportable, like Anarchists, because of Congress' understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the Party's philosophy concerning violence gives adequate ground for detention. It cannot be expected that the Government should be required in addition to show specific acts of sabotage or incitement to subversive action. Such an exercise of discretion is well within that heretofore approved in Knauff v. Shaughnessy,338 U. S. 537, 338 U. S. 541. [Footnote 35] There is no

Page 342 U. S. 542

evidence or contention that all persons arrested as deportable under § 22 of the Internal Security Act, note 4supra, for Communist membership are denied bail. In fact, a report filed with this Court by the Department of Justice in this case at our request shows allowance of bail in the large majority of cases. The refusal of bail in these cases is not arbitrary or capricious, or an abuse of power. There is no denial of the due process of the Fifth Amendment under circumstances where there is reasonable apprehension of hurt from aliens charged with a philosophy of violence against this Government.

B. Delegation of Legislative Power. -- This leaves for consideration the constitutionality of this delegation of authority. We consider first the objection to the alleged unbridled delegation of legislative power in that the Attorney General is left without standards to determine when to admit to bail and when to detain. It is familiar law that, in such an examination, the entire Act is to be looked at, and the meaning of the words determined by their surroundings and connections. Congress can only legislate so far as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose. [Footnote 36] Congress need not make specific standards for each subsidiary executive action in carrying out a policy. [Footnote 37] The bail provision applies to many

Page 342 U. S. 543

classes of deportable aliens other than those named in the classes listed in § 22 of the Internal Security Act. Seenote 4supra. [Footnote 38] A wide range of discretion in the Attorney General as to bail is required to meet the varying situations arising from the many aliens in this country. [Footnote 39]

The policy and standards as to what aliens are subject to deportation are, in general, clear and definite. 8 U.S.C. §§ 137 and 155. Specifically, when dealing with alien Communists, as in these cases, the legislative standard for deportation is definite. See notes 3 and | 3 and S. 524fn4|>4, supra. In carrying out that policy, the Attorney General is not left with untrammeled discretion as to bail. Courts review his determination. Hearings are had, and he must justify his refusal of bail by reference to the legislative scheme to eradicate the evils of Communist activity. The legislative judgment of evils calling for the 1950

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