Under authority of the Alien Enemy Act of 1798, which empowers
the President, whenever there is a "declared war" between the
United States and any foreign country, to provide for the removal
of alien enemies from the United States, the President, on July 14,
1945, directed the removal of all alien enemies "deemed by the
Attorney General to be dangerous" to the public safety. The
Attorney General, on January 18, 1946, ordered removal of
petitioner, a German national, from the United States. Challenging
the validity of the removal order, petitioner instituted habeas
corpus proceedings in the Federal District Court to secure his
release from detention under the order.
1. The Alien Enemy Act precludes judicial review of the removal
order. Pp. 335 U. S.
2. In the circumstances of relations between the United States
and Germany, there exists a "declared war" notwithstanding the
cessation of actual hostilities, and the order is enforceable. Pp.
335 U. S.
3. The Alien Enemy Act, construed as permitting resort to the
courts only to challenge its validity and construction, and to
raise questions of the existence of a "declared war" and of alien
enemy status, does not violate the Bill of lights of the Federal
Constitution. Pp. 335 U. S.
4. The fact that hearings are utilized by the Executive to
secure an informed basis for the exercise of the summary power
conferred by the Act does not empower the courts to retry such
hearings, nor does it make the withholding of such power from the
courts a denial of due process. Pp. 335 U. S.
163 F.2d 143 affirmed.
Petitioner, in custody under an order of the Attorney General
for his removal from the United States under the Alien Enemy Act,
applied to the District Court for a writ of habeas corpus for
release from detention under the
Page 335 U. S. 161
order. The District Court's denial of the writ was affirmed by
the Circuit Court of Appeals. 163 F.2d 143. This Court granted
certiorari. 333 U.S. 865. Affirmed,
p. 335 U. S.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The Fifth Congress committed to the President these powers:
"Whenever there is a declared war between the United States and
any foreign nation or government, or any invasion or predatory
incursion is perpetrated, attempted, or threatened against the
territory of the United States by any foreign nation or government,
and the President makes public proclamation of the event, all
natives, citizens, denizens, or subjects of the hostile nation or
government, being of the age of fourteen years and upward, who
shall be within the United States and not actually naturalized,
shall be liable to be apprehended, restrained, secured, and removed
as alien enemies. The President is authorized, in any such event,
by his proclamation thereof, or other public act, to direct the
conduct to be observed, on the part of the United States, toward
the aliens who become so liable; the manner and degree of the
restraint to which they shall be subject
Page 335 U. S. 162
and in what cases, and upon what security their residence shall
be permitted, and to provide for the removal of those who, not
being permitted to reside within the United States, refuse or
neglect to depart therefrom, and to establish any other regulations
which are found necessary in the premises and for the public
(Act of July 6, 1798, 1 Stat. 577, R.S. § 4067, as amended, 40
Stat. 531, 50 U.S.C. § 21.)
This Alien Enemy Act has remained the law of the land, virtually
unchanged since 1798. [Footnote
] Throughout these one hundred and fifty years, executive
interpretation and decisions of lower courts have found in the Act
an authority for the President which is now questioned, and the
further claim is made that, if what the President did comes within
the Act, the Congress could not give him such power. [Footnote 2
] Obviously these are issues which
properly brought the case here. 333 U.S. 865.
Petitioner, a German alien enemy, [Footnote 3
] was arrested on December
Page 335 U. S. 163
8, 1941, and, after proceedings before an Alien Enemy Hearing
Board on January 16, 1942, was interned by order of the Attorney
General, dated February 9, 1942. [Footnote 4
] Under authority of the Act of 1798, the
President, on July 14, 1945, directed the removal from the United
States of all alien enemies "who shall be deemed by the Attorney
General to be dangerous to the public pease and safety of the
United States." Proclamation 2655, 10 Fed.Reg. 8947. Accordingly,
the Attorney General, on January 18, 1946, ordered petitioner's
removal. [Footnote 5
] Denial of
a writ of habeas corpus for release from detention under this order
was affirmed by the court below. 163 F.2d 143.
As Congress explicitly recognized in the recent Administrative
Procedure Act, some statutes "preclude judicial review." Act of
June 11, 1946,§ 10, 60 Stat. 237, 243. Barring questions of
interpretation and constitutionality,
Page 335 U. S. 164
the Alien Enemy Act of 1798 is such a statute. Its terms,
purpose, and construction leave no doubt. The language employed by
the Fifth Congress could hardly be made clearer, or be rendered
doubtful, by the incomplete and not always dependable accounts we
have of debates in the early years of Congress. [Footnote 6
] That such was the scope of the
Act is established by controlling contemporaneous construction.
"The act concerning alien enemies, which confers on the president
very great discretionary powers respecting their persons,"
Marshall, C.J., in Brown v. United
8 Cranch 110, 12 U. S. 126
"appears to me to be as unlimited as the legislature could make
it." Washington, J., in Lockington v. Smith,
No. 8448 at p. 760. The very nature of the President's power to
order the removal of all enemy aliens rejects the notion that
courts may pass judgment upon the exercise of his discretion.
] This view was
expressed by Mr. Justice Iredell shortly after the Act was passed,
Case of Fries,
9 Fed.Cas. No. 5126, and every judge before
whom the question has since come has held that the statute barred
Page 335 U. S. 165
review. [Footnote 8
would so read the Act if it came before us without the impressive
gloss of history.
The power with which Congress vested the President had to be
executed by him through others. He provided for the removal of such
enemy aliens as were "deemed by the Attorney General" to be
dangerous. [Footnote 9
such a finding at the President's behest was likewise not to be
subjected to the scrutiny of courts. For one thing, removal was
contingent not upon a finding that in fact an alien was
"dangerous." The President was careful to call for the removal of
aliens "deemed by the Attorney General to be dangerous." But the
short answer is that
Page 335 U. S. 166
the Attorney General was the President's voice and conscience. A
war power of the President not subject to judicial review is not
transmuted into a judicially reviewable action because the
President chooses to have that power exercised within narrower
limits than Congress authorized.
And so we reach the claim that, while the President had summary
power under the Act, it did not survive cessation of actual
hostilities. [Footnote 10
This claim in effect nullifies the power to deport alien enemies,
for such deportations are hardly practicable during the pendency of
what is colloquially known as the shooting war. [Footnote 11
] Nor does law
Page 335 U. S. 167
lag behind common sense. War does not cease with a cease-fire
order, and power to be exercised by the President such as that
conferred by the Act of 1798 is a process which begins when war is
declared but is not exhausted when the shooting stops. [Footnote 12
] See United
States v. Anderson,
Page 335 U. S. 168
9 Wall. 56, 76 U. S. 70
12 Wall. 700; McElrath v. United States, 102 U.
, 102 U. S. 438
Hamilton v. Kentucky Distilleries & Warehouse Co.,
251 U. S. 146
251 U. S. 167
"The state of war" may be terminated by treaty or legislation or
Presidential proclamation. Whatever the modes, its
Page 335 U. S. 169
termination is a political act. [Footnote 13
Whether and when it would be
open to this Court to find that a war, though merely formally kept
alive, had in fact ended is a question too fraught with gravity
even to be adequately formulated when not compelled. Only a few
months ago, the Court rejected the contention that the state of war
in relation to which the President has exercised the authority now
challenged was terminated. Woods v. Cloyd W. Miller Co.,
333 U. S. 138
Nothing that has happened since calls for a qualification of that
view. [Footnote 14
] It is
still true, as was said in the opinion in that case which eyed the
war power most jealously, "We have armies abroad exercising our war
power, and have made no peace terms with our allies, not to mention
our enemies." Woods v. Cloyd W. Miller Co., supra,
333 U. S. 147
(concurring opinion). The situation today is strikingly similar to
that of 1919, where this Court observed:
"In view of facts of public knowledge, some of which have been
referred to, that the treaty of
Page 335 U. S. 170
peace has not yet been concluded, that the railways are still
under national control by virtue of the war powers, that other war
activities have not been brought to a close, and that it cannot
even be said that the manpower of the nation has been restored to a
peace footing, we are unable to conclude that the act has ceased to
Hamilton v. Kentucky Distilleries & Warehouse Co.,
251 U.S. at 251 U. S.
The political branch of the Government has not brought the war
with Germany to and end. On the contrary, it has proclaimed that "a
state of war still exists." Presidential Proclamation 2714, 12
Fed.Reg. 1; see Woods v. Cloyd W. Miller Co., supra,
333 U. S. 140
Fleming v. Mohawk Wrecking & Lumber Co., 331 U.
, 331 U. S. 116
The Court would be assuming the functions of the political agencies
of the Government to yield to the suggestion that the unconditional
surrender of Germany and the disintegration of the Nazi Reich have
left Germany without a government capable of negotiating a treaty
of peace. It is not for us to question a belief by the President
that enemy aliens who were justifiably deemed fit subjects for
internment during active hostilities do not lose their potency for
mischief during the period of confusion and conflict which is
characteristic of a state of war even when the guns are silent but
the peace of Peace has not come. [Footnote 15
] These are matters of political judgment for
which judges have neither technical competence nor official
This brings us to the final question. Is the statute valid as we
have construed it? The same considerations of reason, authority,
and history, that led us to reject
Page 335 U. S. 171
reading the statutory language "declared war" [Footnote 16
] to mean "actual hostilities,"
support the validity of the statute. The war power is the war
power. If the war, as we have held, has not in fact ended, so as to
justify local rent control, a fortiori,
supports the power given to the President by the Act of 1798 in
relation to alien enemies. Nor does it require protracted argument
to find no defect in the Act because resort to the courts may be
had only to challenge the construction and validity of the statute
and to question the existence of the "declared war," as has been
done in this case. [Footnote
] The Act is almost as old as the Constitution, and it would
savor of doctrinaire audacity now to find the statute offensive to
some emanation of the Bill of Rights. [Footnote 18
] The fact that
Page 335 U. S. 172
hearings are utilized by the Executive to secure an informed
basis for the exercise of summary power does not argue the right of
courts to retry such hearings, nor bespeak denial of due process to
withhold such power from the courts.
Such great war powers may be abused, no doubt, but that is a bad
reason for having judges supervise their exercise, whatever the
legal formulas within which such supervision would nominally be
confined. In relation to the distribution of constitutional powers
among the three branches of the Government, the optimistic
Eighteenth Century language of Mr. Justice Iredell, speaking of
this very Act, is still pertinent:
"All systems of government suppose they are to be administered
by men of common sense and common honesty. In our country, as all
ultimately depends on the voice of the people, they have it in
their power, and it is to be presumed they generally will choose
men of this description; but if they will not, the case, to be
sure, is without remedy. If they choose fools, they will have
foolish laws. If they choose knaves, they will have knavish ones.
But this can never be the case until they are generally fools or
knaves themselves, which, thank God, is not likely ever to become
the character of the American people."
(Case of Fries, supra,
at p. 836.)
Page 335 U. S. 173
Accordingly, we hold that full responsibility for the just
exercise of this great power may validly be left where the Congress
has constitutionally placed it -- on the President of the United
States. The Founders, in their wisdom, made him not only the
Commander in Chief, but also the guiding organ in the conduct of
our foreign affairs. He who was entrusted with such vast powers in
relation to the outside world was also entrusted by Congress,
almost throughout the whole life of the nation, with the
disposition of alien enemies during a state of war. Such a page of
history is worth more than a volume of rhetoric. [Footnote 19
Judgment affirmed and stay order entered February 2, 1948,
There have been a few minor changes in wording. We have duly
considered these in light of an argument in the brief of the
and deem them without significance.
We are advised that there are 530 alien enemies, ordered to
depart from the United States, whose disposition awaits the outcome
of this case.
The district court found that:
"The petitioner was born in Berlin, Germany, on February 5,
1890. He was out of Germany for most of the period of 1923 to
March, 1933. He returned to Germany in March, 1933, and became a
member of the Nazi party. Later he had some disagreements with
other members, and, as a result, he was sent to a German
concentration camp, from which he escaped March 1, 1934, after
being confined for over eight months. Sometime thereafter, he came
to this country and published a book, 'I Knew Hitler' ['The Story
of a Nazi Who Escaped The Blood Purge' -- 'In memory of Captain
Ernst Roehm and Gregor Strasser and many other Nazis who were
betrayed, murdered, and traduced in their graves'], in 1937. His
petition for naturalization as an American citizen was denied
December 18, 1939."
The petitioner's attitude was thus expressed in his brief before
the district court:
"Fundamentally, it matters not where I live, for I can strive to
live the right life and be of service where ever I am. Besides, it
may well be a better thing to do the best I can while I can in the
midst of a defeated people suffering in body and soul than to be a
futile and frustrated something in the midst of a triumphant people
breathing the foul air of self-complacency, hypocrisy, and
No question has been raised as to the validity of these
administrative actions taken pursuant to Presidential Proclamation
2526, dated December 8, 1941, 6 Fed.Reg. 6323, issued under the
authority of the Alien Enemy Act.
The order recited that the petitioner was deemed dangerous on
the basis of the evidence adduced at hearings before the Alien
Enemy Hearing Board on January 16, 1942, and the Repatriation
Hearing Board on December 17, 1945. The district court which
examined these proceedings found that petitioner had notice and a
fair hearing, and that the evidence was substantial. See
also note 8
See, however, United States ex rel. Kessler v. Watkins,
163 F.2d 140; Citizens Protective League v. Clark,
U.S.App.D.C. 116, 155 F.2d 290.
"Such a construction would, in my opinion, be at variance with
the spirit as well as with the letter of the law, the great object
of which was to provide for the public safety by imposing such
restraints upon alien enemies as the chief executive magistrate of
the United States might think necessary, and of which his
particular situation enabled him best to judge. . . . I do not feel
myself authorised to impose limits to the authority of the
executive magistrate which congress, in the exercise of its
constitutional powers, has not seen fit to impose. Nothing, in
short, can be more clear to my mind from an attentive consideration
of the act in all its parts than that congress intended to make the
judiciary auxiliary to the executive, in effecting the great
objects of the law, and that each department was intended to act
independently of the other, except that the former was to make the
ordinances of the latter, the rule of its decisions."
Lockington v. Smith, supra, supra,
Citizen's Protective League v. Clark,
116, 155 F.2d 290; United States ex rel. Schlueter v.
158 F.2d 853; United States ex rel. Hack v.
159 F.2d 552; United States ex rel. Kessler v.
163 F.2d 140; United States ex rel. Von Ascheberg
163 F.2d 1021; Minotto v. Bradley,
600; see Lockington's Case,
Brightly 269, 280;
Lockington v. Smith,
15 F.Cas. No. 8,448; Ex parte
247 F. 882; De Lacey v. United States,
625; Ex parte Fronklin,
253 F. 984; Grahl v. United
261 F. 487; cf. Banning v. Penrose,
159; Ex parte Risse,
257 F. 102; Ex parte Gilroy,
257 F. 110; United States ex rel. De Cicco v.
Longo, 46 F. Supp.
; United States ex rel. Schwarzkopf v. Uhl,
F.2d 898; United States ex rel. D'Esquiva v. Uhl,
903; United States ex rel. Knauer v. Jordan,
158 F.2d 337.
The one exception is the initial view taken by the district court
in this case. It rejected the
"contention that the only question that the Court may consider
in this habeas corpus proceeding is the petitioner's alien enemy
status, although there are cases which give support to that
but held the petitioner had had a fair hearing before the
Repatriation Board, and that there was substantial evidence to
support the Attorney General's determination that petitioner was
"dangerous." On rehearing, the court noted that the
foreclosed the issue.
If the President had not added this express qualification, but
had conformed his proclamation to the statutory language,
presumably the Attorney General would not have acted arbitrarily,
but would have utilized some such implied standard as "dangerous"
in his exercise of the delegated power.
"The cessation of hostilities does not necessarily end the war
power. It was stated in Hamilton v. Kentucky Distilleries &
Warehouse Co., 251 U. S. 146
, 251 U. S.
, that the war power includes the power 'to remedy
the evils which have arisen from its rise and progress,' and
continues during that emergency. Stewart v.
11 Wall. 493, 78 U. S.
. Whatever may be the reach of that power, it is
plainly adequate to deal with problems of law enforcement which
arise during the period of hostilities but do not cease with them.
No more is involved here."
Fleming v. Mohawk Wrecking & Lumber Co.,
331 U. S. 111
331 U. S.
The claim is said to be supported by the legislative history of
the Act. We do not believe that the paraphrased expressions of a
few members of the Fifth Congress could properly sanction at this
late date a judicial reading of the statutory phrase "declared war"
to mean "state of actual hostilities." See
Nothing needs to be added to the consideration
which this point received from the court below in the
case. Circuit Judge Augustus Hand, in this case
speaking for himself and Circuit Judges L. Hand and Swan, said:
"Appellants' counsel argues that the Congressional debates
preceding the enactment of the Alien Law of 1798 by Gallatin, Otis,
and others show that Congress intended that 'war' as used in the
Alien Enemy Act should be war in fact. We cannot agree that the
discussions had such an effect. Gallatin argued that Section 9 of
Art. I of the Constitution allowing to the states the free
'Migration or Importation' of aliens until 1808 might stand in the
way of the Act as proposed if it was not limited to a 'state of
actual hostilities.' It however was not so limited in the text of
the act, and it is hard to see how the failure to limit it in words
indicated a disposition on the part of Congress to limit it by
implication. Otis objected to limiting the exercise of the power to
a state of declared war because he thought that the President
should have power to deal with enemy aliens in the case of
hostilities short of war and in cases where a war was not declared.
That Otis wished to add 'hostilities' to the words 'declared war,'
and failed in his attempt, does not show that Congress meant that,
when war was declared, active hostilities must exist in order to
justify the exercise of the power. The questions raised which were
dealt with in the act as finally passed were not how long the power
should last when properly invoked, but the conditions upon which it
might be invoked. Those conditions were fully met in the present
case, and no question is raised by appellants' counsel as to the
propriety of the President's Proclamation of War. There is no
indication in the debates or in the terms of the statute that the
exercise of the power, when properly invoked, should cease until
peace was made, and peace has not been made in the present case. If
the construction of the statute contended for by appellants'
counsel were adopted, the Executive would be powerless to carry out
internment or deportation which was not exercised during active
war, and might be obliged to leave the country unprotected from
aliens dangerous either because of secrets which they possessed or
because of potential inimical activities. It seems quite necessary
to suppose that the President could not carry out, prior to the
official termination of the declared state of war, deportations
which the Executive regarded as necessary for the safety of the
country but which could not be carried out during active warfare
because of the danger to the aliens themselves or the interference
with the effective conduct of military operations."
United States ex rel. Kessler v. Watkins,
163 F.2d at
It is suggested that a joint letter to the Chairman of a
congressional committee by Attorney General Gregory and the
Secretary of Labor in the Wilson administration reflects a contrary
interpretation of this Act. But, as the Kessler
"The letter of Attorney General Gregory referred to by
appellants' counsel does not affect our conclusions. When he said
that there was no law to exclude aliens, he was, in our opinion,
plainly referring to conditions after the ratification of the peace
treaty, and not to prior conditions."
163 F.2d 143. The text of the letter (dated Feb. 5, 1919)
supports that observation:
"There is no law now on the statute books under which these
persons can be excluded from the country, nor under which they can
be detained in custody after the ratification of the peace treaty.
Unless the bill introduced by you or one similar in character is
passed, it will become necessary, on the ratification of peace, to
set free all of these highly dangerous persons."
Hearings before the House Committee on Immigration and
Naturalization on H.R. 6750, 66th Cong., 1st Sess., 42-43. And
Attorney General Palmer made substantially the same statements to
the Senate and House Committees on Immigration. See
No. 283, 66th Cong., 1st Sess., 2; H.R.Rep. No. 143, 66th Cong.,
1st Sess., 2.
But even if contradictory views were expressed by Attorney
General Gregory, they plainly reflect political exigencies which
from time to time guide the desire of an administration to secure
what in effect is confirming legislation. The confusion of views is
strikingly manifested by Attorney General Gregory's recognition
that the Act survived the cessation of actual hostilities so as to
give authority to apprehend, restrain, and secure enemy aliens.
World War I cases cited note 8 supra.
In any event, even if one
view expressed by Attorney General Gregory, as against another
expressed by him, could be claimed to indicate a deviation from an
otherwise uniformly accepted construction of the Act before us, it
would hardly touch the true meaning of the statute. United
States ex rel. Hirshberg v. Malanaphy,
168 F.2d 503, opinion
denying petition for rehearing, United States Circuit Court of
Appeals for the Second Circuit, June 2, 1948. As against the
conflicting views of one Attorney General, we have not only the
view, but the actions, of the present Attorney General and of the
President, and their ratification by the present Congress.
See note 19
Of course, there are statutes which have provisions fixing the
date of the expiration of the war powers they confer upon the
Executive. See, e.g., Hamilton v. Kentucky Distilleries &
Warehouse Co., 251 U. S. 146
251 U. S. 167
note 1 (collection of statutes providing that the authority
terminates upon ratification of treaty of peace or by Presidential
proclamation). Congress can, of course, provide either by a day
certain or a defined event for the expiration of a statute. But
when the life of a statute is defined by the existence of a war,
Congress leaves the determination of when a war is concluded to the
usual political agencies of the Government.
the President's address to Congress on March
17, 1948, recommending the enactment of the European recovery
program, universal military training, and the temporary reenactment
of selective service legislation. H.Doc.No.569, 80th Cong., 2d
Sess. On May 10, 1948, by Executive Order 9957, 13 Fed.Reg. 2503,
the President exercised his authority "in time of war, . . .
through the Secretary of War, to take possession and assume control
of any system or systems of transportation. . . ." Act of August
29, 1916, 39 Stat. 619, 645, 10 U.S.C. § 1361.
"Rapid changes are taking place in Europe which affect our
foreign policy and our national security. . . . Almost 3 years have
passed since the end of the greatest of all wars, but peace and
stability have not returned to the world."
at p. 1.
We should point out that it is conceded that a "state of war"
was "formally declared" against Germany. Act of December 11, 1941,
55 Stat. 796.
The additional question as to whether the person restrained is
in fact an alien enemy fourteen years of age or older may also be
reviewed by the courts. See
cases cited note 8 supra.
This question is not
raised in this case.
The Fifth Congress was also responsible for "An Act concerning
Aliens," approved June 25, 1798, 1 Stat. 570, and "An Act in
addition to the act, entitled An act for the punishment of
certain crimes against the United States,'" approved July 14, 1798,
1 Stat. 596, as well as the instant "An Act respecting Alien
Enemies," approved July 6, 1798. It is significant that, while the
former statutes -- the Alien and Sedition Acts -- were vigorously
and contemporaneously attacked as unconstitutional, there was never
any issue raised as to the validity of the Alien Enemy Act. James
Madison, in his report on the Virginia Resolutions, carefully and
caustically differentiated between friendly and enemy alien
legislation as follows:
"The next observation to be made is that much confusion and
fallacy have been thrown into the question by blending the two
cases of aliens members of a hostile nation
members of friendly nations.
. . . With respect to alien
enemies, no doubt has been intimated as to the Federal authority
over them, the Constitution having expressly delegated to Congress
the power to declare war against any nation, and, of course, to
treat it and all its members as enemies."
6 Writings of James Madison (Hunt, Editor) 360, 361. Similarly,
Thomas Jefferson, the author of the Kentucky Resolutions of 1798
and 1799, was careful to point out that the Alien Act under attack
was the one "which assumes power over alien friends." 8 Writings of
Thomas Jefferson (Ford, Editor) 466. There was never any
questioning of the Alien Enemy Act of 1798 by either Jefferson or
Madison, nor did either ever suggest its repeal.
It is suggested that Congress ought to do something about
correcting today's decision. But the present Congress has
apparently anticipated the decision. It has recognized that the
President's powers under the Alien Enemy Act of 1798 were not
terminated by the cessation of actual hostilities by appropriating
". . . for all necessary expenses, incident to the maintenance,
care, detention, surveillance, parole, and transportation of alien
enemies and their wives and dependent children, including
transportation and other expenses in the return of such persons to
place of bona fide
residence or to such other place as may
be authorized by the Attorney General. . . ."
Pub.L. 166, 80th Cong., 1st Sess., approved July 9, 1947, 61
Stat. 279, 292.
"And the appropriation by Congress of funds for the use of such
agencies stands as confirmation and ratification of the action of
the Chief Executive. Brooks v. Dewar, 313 U. S.
, 313 U. S. 361
Fleming v. Mohawk Wrecking & Lumber Co.,
331 U. S. 111
331 U. S. 116
see also Isbrandtsen-Moller Co. v. United States,
300 U. S. 139
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
MURPHY and MR. JUSTICE RUTLEDGE join, dissenting.
The petition for habeas corpus in this case alleged that
petitioner, a legally admitted resident of the United States,
Page 335 U. S. 174
was about to be deported from this country to Germany as a
"dangerous" alien enemy, without having been afforded notice and a
fair hearing to determine whether he was "dangerous." The Court now
holds, as the Government argued, that, because of a presidential
proclamation, petitioner can be deported by the Attorney General's
order without any judicial inquiry whatever into the truth of his
allegations. [Footnote 2/1
Court goes further and holds, as I understand its opinion, that the
Attorney General can deport him whether he is dangerous or not. The
effect of this holding is that any unnaturalized person, good or
bad, loyal or disloyal to this country, if he was a citizen of
Germany before coming here, can be summarily seized, interned, and
deported from the United States by the Attorney
Page 335 U. S. 175
General, and that no court of the United States has any power
whatever to review, modify, vacate, reverse, or in any manner
affect the Attorney General's deportation order. MR. JUSTICE
DOUGLAS has given reasons in his dissenting opinion why he believes
that deportation of aliens, without notice and hearing, whether, in
peace or war, would be a denial of due process of law. I agree with
MR. JUSTICE DOUGLAS for many of the reasons he gives that
deportation of petitioner without a fair hearing as determined by
judicial review is a denial of due process of law. [Footnote 2/2
] But I do not reach the question of
power to deport aliens of countries with which we are at war while
we are at war, because I think the idea that we are still at war
with Germany in the sense contemplated by the statute controlling
here is a pure fiction. Furthermore, I think there is no act of
Congress which lends the slightest basis to the claim that, after
hostilities with a foreign country have ended, the President or the
Attorney General, one or both, can deport aliens without a fair
hearing reviewable in the courts. On the contrary, when this very
question came before Congress after World War I in the interval
between the Armistice and the conclusion of formal peace with
Germany, Congress unequivocally required that enemy aliens be given
a fair hearing before they could be deported.
The Court relies on the Alien Enemy Act of 1798. 1 Stat. 577, 50
U.S.C. §§ 21-24. That Act did grant extraordinarily broad powers to
the President to restrain and "to provide for the removal" of
aliens who owe allegiance to a foreign government, but such action
is authorized only "whenever there is a declared war between the
United States" and such foreign government, or in the event that
foreign government attempts or threatens the United States with
"any invasion or predatory incursion."
Page 335 U. S. 176
The powers given to the President by this statute, I may assume
for my purposes, are sufficiently broad to have authorized the
President, acting through the Attorney General, to deport alien
Germans from this country while the "declared" second World War was
actually going on, or while there was real danger of invasion from
Germany. But this 1798 statute, unlike statutes passed in later
years, did not expressly prescribe the events which would for
statutory purposes mark the termination of the "declared" war or
threatened invasions. See Hamilton v. Kentucky Distilleries
& Warehouse Co., 251 U. S. 146
251 U. S. 165
note 1. In such cases, we are called on to interpret a statute as
best we can so as to carry out the purpose of Congress in
connection with the particular right the statute was intended to
protect, United States v.
9 Wall. 56, 76 U. S. 69
12 Wall. 700, 79 U. S. 702
or the particular evil the statute was intended to guard against.
McElrath v. United States, 102 U.
, 102 U. S.
Judicial Determination of the End
of the War, 47 Col.L.Rev. 255.
The 1798 Act was passed at a time when there was widespread
hostility to France on the part of certain groups in the United
States. It was asserted by many that France had infiltrated this
country with spies preaching "subversive" ideas and activities. Mr.
Otis, the chief congressional spokesman for the measure, expressed
his fears of
". . . a band of spies . . . spread through the country from one
end of it to the other who, in case of the introduction of an enemy
into our country,"
might join the enemy "in their attack upon us, and in their
plunder of our property. . . ." Annals of Congress, 5th Cong., 2d
Sess. 1791. Congressional discussions of this particular measure
appear at pp. 1573-1582, 1785-1796, and 2034-2035, Annals of
Congress, 5th Cong., 2d Sess., [Footnote 2/3
Page 335 U. S. 177
and show beyond any reasonable doubt that the Alien Enemy Act of
1798 was intended to grant its extraordinary powers only to prevent
alien enemies residing in the United States from extending aid and
comfort to an enemy country while dangers from actual fighting
hostilities were imminently threatened. Indeed, Mr. Otis, who was
most persistent in his expressions of anti-French sentiments and in
his aggressive sponsorship of this and its companion Alien and
Sedition Acts, is recorded as saying
". . . that, in a time of tranquility, he should not desire to
put a power like this into the hands of the Executive; but, in a
time of war, the citizens of France ought to be considered and
treated and watched in a very different manner from citizens of our
Annals of Congress, 5th Cong., 2d Sess. 1791. And just before
the bill was ordered to be read for its third time, Mr. Gallatin
pointed out that the Alien Act had already made it possible for the
President to remove all aliens, whether friends or enemies; he
interpreted the measure here under consideration, aimed only at
alien enemies, as providing "in what manner they may be laid under
certain restraints by way of security." For this reason, he
supported this bill. Annals of Congress, 5th Cong., 2d Sess.
German aliens could not now, if they would, aid the German
Government in war hostilities against the United States. For, as
declared by the United States Department of State, June 5, 1945,
the German armed forces on land and sea had been completely
subjugated, and had unconditionally surrendered.
"There is no central Government or authority in Germany capable
of accepting responsibility for the maintenance of order, the
Page 335 U. S. 178
of the country, and compliance with the requirements of the
And the State Department went on to declare that the United
States, Russia, Great Britain, and France had assumed
"supreme authority with respect to Germany, including all the
powers possessed by the German Government, the High Command, and
any state, municipal, or local government or authority."
12 State Dept.Bull. 1051. And on March 17, 1948, the President
of the United States told the Congress that "Almost three years
have passed since the end . . . " of the war with Germany.
Court opinion, note
Of course, it is nothing but a fiction to say that we are now at
war with Germany. [Footnote 2/4
Whatever else that fiction might support, I refuse to agree that it
affords a basis for today's holding that our laws authorize the
peacetime banishment of any person on the judicially unreviewable
conclusion of a single individual. The 1798 Act did not grant its
extraordinary and dangerous powers to be used during the period of
fictional wars. As previously pointed out, even Mr. Otis, with all
of his fervent support of anti-French legislation, repudiated the
suggestion that the Act would vest the President with such
dangerous powers in peacetime. Consequently, the Court today gives
the 1798 Act a far broader meaning
Page 335 U. S. 179
than it was given by one of the most vociferous champions of the
1798 series of anti-alien and anti-sedition laws.
Furthermore, the holding today represents an entirely new
interpretation of the 1798 Act. For nearly 150 years after the 1798
Act, there never came to this Court any case in which the
Government asked that the Act be interpreted so as to allow the
President or any other person to deport alien enemies without
allowing them access to the courts. In fact, less than two months
after the end of the actual fighting in the first Word War,
Attorney General Gregory informed the Congress that, although there
was power to continue the internment of alien enemies after the
cessation of actual hostilities and until the ratification of a
peace treaty, still there was no statute under which they could
then be deported. [Footnote 2/5
For this reason, the Attorney General requested
Page 335 U. S. 180
Congress to enact new legislation to authorize deportation of
enemy aliens at that time. The bill thereafter introduced was
endorsed by both the Attorney General and the Secretary of Labor in
a joint letter in which they asked that it be given "immediate
consideration" in view of the "gravity of this situation." Hearings
before the House Committee on Immigration and Naturalization on
H.R. 6750, 66th Cong., 1st Sess. 42-43. Several months later,
Attorney General Palmer submitted substantially the same statements
to the House and Senate Committees on Immigration. H.R.Rep. 143,
66th Cong., 1st Sess. 2; S.Rep. 283, 66th Cong., 1st Sess. 2.
Report of the Attorney General, 1919, 25-28.
A bill to carry out the recommendations of the Wilson
administration was later passed, 41 Stat. 593 (1920), but not until
it had been amended on the floor of the House of Representatives to
require that all alien enemies be given a fair hearing before their
deportation. 58 Cong.Rec. 3366. That a fair hearing was the command
of Congress is not only shown by the language of the Act, but by
the text of the congressional hearings, by the committee reports,
and by congressional debates on the bill. In fact, the House was
assured by the ranking member of the Committee reporting the bill
that, in hearings to deport alien enemies under the bill,
"a man is entitled to have counsel present, entitled to subpoena
witnesses and summon them before him and have a full hearing at
which the stenographer's minutes must be taken."
58 Cong.Rec. 3373. See also
3367 and 3372. Congress
therefore, after the fighting war was over, authorized the
deportation of interned alien enemies only if they were
Page 335 U. S. 181
"given a full hearing, as in all cases of deportation under
existing laws." H.R. No. 143, 66th Cong., 1st Sess. 2.
This petitioner is in precisely the same status as were the
interned alien enemies of the first World War for whom Congress
specifically required a fair hearing with court review as a
prerequisite to their deportation. Yet the Court today sanctions a
procedure whereby petitioner is to be deported without any
determination of his charge that he has been denied a fair hearing.
The Court can reach such a result only by rejecting the
interpretation of the 1798 Act given by two Attorney Generals, upon
which Congress acted in 1920. It is held that Congress and the two
Attorney Generals of the Wilson administration were wrong in
believing that the 1798 Act did not authorize deportation of
interned enemy aliens after hostilities and before a peace treaty.
And, in making its novel interpretation of the 1798 Act, the Court
today denies this petitioner and others the kind of fair hearing
that due process of law was intended to guarantee. See The
Japanese Immigrant Case, 189 U. S. 86
189 U. S.
-101, read and explained on the floor of the House of
Representatives at 58 Cong.Rec. 3373, read into the House Committee
at 19-20, and quoted in part in 335
fn3/2|>note 2 of MR. JUSTICE DOUGLAS' dissenting
The Court's opinion seems to fear that Germans, if now left in
the United States, might somehow "have a potency for mischief" even
after the complete subjugation and surrender of Germany, at least
so long as the "peace of Peace has not come." This "potency for
mischief" can, of course, have no possible relation to apprehension
of any invasion by or war with Germany. The apprehension must
therefore be based on fear that Germans now residing in the United
States might emit ideas dangerous to the "peace of Peace." But the
Page 335 U. S. 182
represents this nation's belief that the spread of political
ideas must not be suppressed. And the avowed purpose of the Alien
Enemy Act was not to stifle the spread of ideas after hostilities
had ended. [Footnote 2/6
] Others in
the series of Alien and Sedition Acts did provide for prison
punishment of people who had or at least who dared to
Page 335 U. S. 183
express political ideas. [Footnote
] I cannot now agree to an interpretation of the Alien Enemy
Act which gives a new life to the long repudiated anti-free speech
and anti-free press philosophy of the 1798 Alien and Sedition Acts.
I would not disinter that philosophy which the people have long
hoped Thomas Jefferson had permanently buried when he pardoned the
last person convicted for violation of the Alien and Sedition
Finally, I wish to call attention to what was said by Circuit
Judge Augustus Hand in this case, speaking for himself and Circuit
Judges Learned Hand and Swan, before whom petitioner argued his own
cause. Believing the deportation order before them was not subject
to judicial review, they saw no reason for discussing the " . . .
nature or weight of the evidence before the Repatriation Hearing
Board, or the finding of the Attorney General. . . ." But they
"However, on the face of the record, it is hard to see why the
relator should now be compelled to go back. Of course, there may be
much not disclosed to justify the step, and it is of doubtful
propriety for a court ever to express an opinion on a subject over
which it has no power. Therefore, we shall, and should, say no more
than to suggest that justice may perhaps be better satisfied if a
reconsideration be given him in the light of the changed
conditions, since the order of removal was made eighteen months
163 F.2d at 144.
It is not amiss, I think, to suggest my belief that, because of
today's opinion, individual liberty will be less secure tomorrow
than it was yesterday. Certainly the security of aliens is
lessened, particularly if their ideas happen to be out of harmony
with those of the governmental
Page 335 U. S. 184
authorities of a period. And there is removed a segment of
judicial power to protect individual liberty from arbitrary action,
at least until today's judgment is corrected by Congress [Footnote 2/8
] or by this Court.
The Court specifically holds that this petitioner is not
entitled to have this Court or any other court determine whether
petitioner has had a fair hearing. The merits of the Attorney
General's action are therefore not subject to challenge by the
petitioner. Nevertheless the court, in note 3
quotes out of context a short paragraph from a
written protest made by petitioner against the Attorney General's
procedure. The only possible purpose of this quotation is to
indicate that, anyhow, the petitioner ought to be deported because
of his views stated in this paragraph of his protest against the
Attorney General's procedure. This is a strange kind of due
process. The protest pointed out that Hitler had kept petitioner in
a concentration camp for eight months for disloyalty to the Nazis,
and that this Government had then kept him imprisoned for four
years on the charge that he was a Nazi. Immediately before the
paragraph cited in the Court's opinion, petitioner's protest
contained the following statement:
"Far be it from me, however, to thrust my goodwill upon anybody
and insist to stay on a community whose public servants of ill will
seek to remove me by pitiful procedures and illegal means.
Therefore, I propose that I leave voluntarily as a free man, not as
a dangerous alien deportee at the earliest opportunity, provided I
shall be allowed sixty days to settle my affairs before sailing
Is it due judicial process to refuse to review the whole record
to determine whether there was a fair hearing, and yet attempt to
bolster the Attorney General's deportation order by reference to
two sentences in a long record?
Compare Ex parte Endo, 323 U.
; Korematsu v. United States,
323 U. S. 214
In addition to the above discussions of the Alien Enemy Act,
frequent references to the Act were made in the congressional
debates on the Alien Act, 1 Stat. 570, and the Sedition Act, 1
Stat. 596, both of which were passed within two weeks of the
adoption of the Alien Enemy Act. These references appear in many
places in the Annals of Congress, 5th Cong., 2d Sess. See
The Court cites Woods v. Cloyd W. Miller Co.,
333 U. S. 138
having held that the war with Germany has not yet terminated. I
find no such holding in the opinion, and no language that even
suggests such a holding. We there dealt with the constitutional war
powers of Congress, whether all those powers are necessarily
nonexistent when there are no actual hostilities. Decision of that
question has hardly even a remote relevancy to the meaning of the
1798 Alien Enemy Act. The Court today also seeks to support its
judgment by a quotation from a concurring opinion in the
But the concurring opinion
cited was that of a single member of the Court.
In a letter addressed to the Chairman of the House Committee on
Immigration and Naturalization dated January 9, 1919, Attorney
General Gregory explained that a number of German subjects who had
"been interned pursuant to section 4067 of the Revised Statutes"
[section 1 of the Alien Enemy Act of 1798] were still held in
custody. He then stated:
"The authority given by the President to regulate the conduct of
enemy aliens during the existence of the war, in my opinion, could
not properly be used at this time
to bring about the
deportation of these aliens. There is now therefore no law under
which these persons can be expelled from the country, nor, if once
out of it, prevented from returning to this country. I have
therefore caused to be prepared the enclosed draft of a proposed
bill, the provisions of which are self-explanatory."
(Italics added.) H.Rep. No.1000, 65th Cong., 3d Sess. 1-2. This
position of the Attorney General that there then was no power under
existing law to deport enemy aliens was reiterated by
representatives of the Attorney General in hearings before the
House Committee on Immigration and Naturalization on the bill
enacted into law. Hearings on H.R. 6750, 66th Cong., 1st Sess.
3-21. In conformity with this interpretation of the 1798 Alien
Enemy Act, the Wilson administration did not attempt to deport
interned alien enemies under the 1798 Act after the Armistice and
before Congress by statute expressly authorized such deportations,
as requested by the two Attorney Generals. Report of the Attorney
General 1919, 25-28.
As a justification for its interpretation of the 1798 Act, the
Court appears to adopt the reasons advanced by the Second Circuit
Court of Appeals in United States ex rel. Kessler v.
163 F.2d 140, 143, decided in 1947. That Court
emphasized the difficulty of deportation of alien enemies during
the time of actual hostility "because of the danger to the aliens
themselves or the interference with the effective conduct of
military operations." This reasoning would, of course, be
persuasive if the object of the 1798 statute had been punishment of
the alien enemies, but the whole legislative history shows that
such was not the purpose of the Act. Hence, the Act cannot be
construed to authorize the deportation of an enemy alien after the
war is over as punishment. Furthermore, the purpose of deportation,
so far as it was authorized (if authorized) under the 1798 Act, was
not to protect the United States from ideas of aliens
a war or threatened invasion, but to protect the
United States against sabotage, etc., during
a war or
threatened invasion. Nevertheless, the Circuit Court of Appeals
thought that, without its interpretation,
"the Executive would be powerless to carry out internment or
deportation which was not exercised during active war, and might be
obliged to leave the country unprotected from aliens dangerous
either because of secrets which they possessed or because of
potential inimical activities."
But after a war is over, the only "inimical activities" would
relate to peacetime governmental matters -- not the type of conduct
which concerned those who passed the Alien Enemy Act. Moreover, it
is difficult to see why it would endanger this country to keep
aliens here "because of secrets which they possess." And, of
course, the executive is not powerless to send dangerous aliens out
of this country, even if the 1798 Act does not authorize their
deportation, for there are other statutes which give broad powers
to deport aliens. There is this disadvantage to the Government,
however, in connection with the other deportation statutes -- they
require a hearing, and the executive would not have arbitrary power
to send them away with or without reasons.
Bowers, Jefferson and Hamilton, 1925, c. XVI,
"Hysterics," and c. XVII, "The Reign of Terror;" 1 Morison, Life of
Otis, c. VIII, "A System of Terror."
It is suggested in the Court's opinion that Congress, by
appropriating funds in 1947 to "return" alien enemies to their
residence or to such other place as may be
authorized by the Attorney General," has already approved the
Attorney General's interpretation of the 1798 Act as authorizing
the present deportation of alien enemies without affording them a
fair hearing. But no such strained inference can be drawn. Congress
did not there or elsewhere express a purpose to deny these aliens a
fair hearing after the war was over. Until it does so, I am
unwilling to attribute to the Congress any such attempted violation
of the constitutional requirement for due process of law.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MURPHY and MR.
JUSTICE RUTLEDGE, concur, dissenting.
I do not agree that the sole question open on habeas corpus is
whether the petitioner is in fact an alien enemy. [Footnote 3/1
] That delimitation of the historic
writ is a wholly arbitrary one. I see no reason for a more narrow
range of judicial inquiry here than in habeas corpus arising out of
any other deportation proceeding.
It is undisputed that, in peacetime, an alien is protected by
the due process clause of the Fifth Amendment. Wong Wing v.
United States, 163 U. S. 228
Federal courts will then determine through habeas corpus
Page 335 U. S. 185
or not a deportation order is based upon procedures affording
due process of law. Vajtauer v. Commissioner, 273 U.
, 273 U. S. 106
In deportation proceedings, due process requires reasonable notice
(Tisi v. Tod, 264 U. S. 131
264 U. S. 134
fair hearing (Bridges v. Wixon, 326 U.
, 326 U. S. 156
Chin Yow v. United States, 208 U. S.
, 208 U. S. 12
Low Wah Suey v. Backus, 225 U. S. 460
and an order supported by some evidence. Vajtauer v.
p. 273 U. S. 106
Zakonaite v. Wolf, 226 U. S. 272
226 U. S. 274
And see Kwock Jan Fat v. White, 253 U.
The rule of those cases is not restricted to instances where
Congress itself has provided for a hearing. The Japanese
Immigrant Case, 189 U. S. 86
decided in 1903, so held. The Court in that case held that due
process required that deportation be had only after notice and
hearing, even though there, as here, the statute prescribed no such
procedure, but entrusted the matter wholly to an executive officer.
] Consistently with
that principle, we held in Bridges v. Wixon, supra,
violation of the rules governing the hearing could be reached on
habeas corpus, even though the rules were prescribed not by
Page 335 U. S. 186
but by the administrative agency in charge of the deportation
proceeding. We stated, p. 326 U. S.
"We are dealing here with procedural requirements prescribed for
the protection of the alien. Though deportation is not technically
a criminal proceeding, it visits a great hardship on the individual
and deprives him of the right to stay and live and work in this
land of freedom. That deportation is a penalty -- at times a most
serious one -- cannot be doubted. Meticulous care must be exercised
lest the procedure by which he is deprived of that liberty not meet
the essential standards of fairness."
The same principles are applicable here. The President has
classified alien enemies by regulations of general applicability,
and has authorized deportation only of those deemed dangerous
because they have adhered to an enemy government, or the principles
thereof. Petitioner was in fact given a hearing in 1945 before the
Repatriation Hearing Board, in addition to one in 1942 before the
Alien Enemy Hearing Board. The order for his deportation recites
that, "upon consideration of the evidence presented" before those
Boards, the Attorney General, in the words of the Proclamation,
"to be dangerous to the public peace and safety of the United
States because he has adhered to a government with which the United
States is at war or to the principle thereof."
Those findings and conclusions and the procedure by which they
were reached must conform with the requirements of due process. And
habeas corpus is the time-honored procedure to put them to the
The inquiry in this type of case need be no greater an intrusion
in the affairs of the Executive branch of government than inquiries
by habeas corpus in times of peace into a determination that the
alien is considered to be an "undesirable resident of the United
Page 335 U. S. 187
Mabler v. Eby, 264 U. S. 32
involve only a determination that procedural due process is
satisfied, that there be a fair hearing, and that the order be
based upon some evidence.
The needs of the hour may well require summary apprehension and
detention of alien enemies. A nation at war need not be detained by
time-consuming procedures while the enemy bores from within. But
with an alien enemy behind bars, that danger has passed. If he is
to be deported only after a hearing, our constitutional
requirements are that the hearing be a fair one. It is foreign to
our thought to defend a mock hearing on the ground that, in any
event, it was a mere gratuity. Hearings that are arbitrary an d
unfair are no hearings at all under our system of government.
Against them habeas corpus provides in this case the only
The notion that the discretion of any officer of government can
override due process is foreign to our system. Due process does not
perish when war comes. It is well established that the war power
does not remove constitutional limitations safeguarding essential
liberties. Home Building & Loan Assn. v. Blaisdell,
290 U. S. 398
290 U. S.
See United States ex rel. Schlueter v.
Watkins, 67 F. Supp.
158 F.2d 853; United States v.
Longo, 46 F. Supp.
; United States v. Uhl,
46 F. Supp. 688,
reversed on other grounds,
137 F.2d 858; Ex parte
257 F. 110; Banning v. Penrose,
255 F. 159;
Ex parte Fronklin,
253 F. 984; Minotto v.
252 F. 600. Cf. Citizens Protective League v.
81 U.S.App.D.C. 116, 155 F.2d 290; Delacey v.
249 F. 625. In the Schlueter
was held that the Constitution and the statute do not require a
hearing, and thus an alien enemy cannot complain of the character
of the hearing he did receive. 67 F. Supp. at 565.
The Court said, 189 U.S. p. 189 U. S.
". . . no person shall be deprived of his liberty without
opportunity at some time, to be heard before such officers in
respect of the matters upon which that liberty depends -- not
necessarily an opportunity upon a regular, set occasion, and
according to the forms of judicial procedure, but one that will
secure the prompt, vigorous action contemplated by Congress, and at
the same time be appropriate to the nature of the case upon which
such officers are required to act. Therefore it is not competent
for the Secretary of the Treasury or any executive officer at any
time within the year limited by the statute arbitrarily to cause an
alien who has entered the country, and has become subject in all
respects to its jurisdiction, and a part of its population,
although alleged to be illegally here, to be taken into custody and
deported without giving him all opportunity to be heard upon the
questions involving his right to be and remain in the United
States. No such arbitrary power can exist where the principles
involved in due process of law are recognized."