1. Administrative hearings in proceedings for the deportation of
aliens must conform to the requirements of the Administrative
Procedure Act, 5 U.S.C. §§ 1001
et seq. Pp.
339 U. S.
35-53.
2. The history of this Act discloses that it is remedial
legislation which should be construed, so far as its text permits,
to give effect to its remedial purposes where the evils it was
aimed at appear. Pp.
339 U. S.
36-41.
3. One of the fundamental purposes of the Act was to ameliorate
the evils resulting from the practice of commingling in one person
the duties of prosecutor and judge. Pp.
339 U. S. 41-45,
339 U. S.
46.
4. A hearing in a proceeding for the deportation of an alien was
presided over by a "presiding inspector" of the Immigration
Service, who had not investigated that particular case but whose
general duties included the investigation of similar cases. There
being no "examining inspector" present to conduct the prosecution,
it was the duty of the "presiding inspector" to conduct the
interrogation of the alien and the Government's witnesses,
cross-examine the alien's witnesses, and "present such evidence as
is necessary to support the charges in the warrant of arrest." It
might become his duty to lodge an additional charge against the
alien and hear the evidence on that charge. After the hearing, he
was required to prepare a summary of the evidence, proposed
findings of fact, conclusions of law, and a proposed order, for the
consideration of the Commissioner of Immigration.
Held: this was contrary to the purpose of the
Administrative Procedure Act to ameliorate the evils resulting from
a combination of the prosecuting and adjudicating functions in
administrative proceedings. Pp.
339 U. S.
45-48.
5. Section 5 of the Administrative Procedure Act, which
establishes certain formal requirements for every "adjudication
required by statute to be determined on the record after
opportunity for agency hearing," applies to deportation proceedings
conducted by the Immigration
Page 339 U. S. 34
Service, although the Immigration Act contains no express
requirement for hearings in deportation proceedings. Pp.
339 U. S. 48-51
.
(a) The limitation of § 5 of the Administrative Procedure Act to
hearings "required by statute" does not exempt hearings held by
compulsion, but only those which administrative agencies may hold
by regulation, rule, custom, or special dispensation. P.
339 U. S.
50.
(b) They do not exempt hearings the requirement for which has
been read into a statute by this Court in order to save the statute
from constitutional invalidity. Pp.
339 U. S.
50-51.
6. The exception in § 7(a) of the Administrative Procedure Act
of proceedings before "officers specially provided for by or
designated pursuant to statute" does not exempt deportation
hearings held before immigrant inspectors. Pp.
339 U. S.
51-53.
(a) Nothing in the Immigration Act specifically provides that
immigrant inspectors shall conduct deportation hearings or be
designated to do so. Pp.
339 U. S.
51-52.
84 U.S.App.D.C. 419, 174 F.2d 158, reversed.
In a habeas corpus proceeding, the District Court held that the
Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5
U.S.C. §§ 1001
et seq., does not apply to deportation
hearings.
80 F. Supp.
235. The Court of Appeals affirmed. 84 U.S.App.D.C. 419, 174
F.2d 158. This Court granted certiorari. 338 U.S. 812.
Reversed, p.
339 U. S.
53.
Page 339 U. S. 35
MR. JUSTICE JACKSON delivered the opinion of the Court.
This habeas corpus proceeding involves a single ultimate
question -- whether administrative hearings in deportation cases
must conform to requirements of the Administrative Procedure Act of
June 11, 1946, 60 Stat. 237, 5 U.S.C. § 1001
et seq.
Wong Yang Sung, native and citizen of China, was arrested by
immigration officials on a charge of being unlawfully in the United
States through having overstayed shore leave as one of a shipping
crew. A hearing was held before an immigrant inspector who
recommended deportation. The Acting Commissioner approved, and the
Board of Immigration Appeals affirmed.
Wong Yang Sung then sought release from custody by habeas corpus
proceedings in District Court for the District of Columbia, upon
the sole ground that the administrative hearing was not conducted
in conformity with §§ 5 and 11 of the Administrative Procedure Act.
[
Footnote 1]
Page 339 U. S. 36
The Government admitted noncompliance, but asserted that the Act
did not apply. The court, after hearing, discharged the writ and
remanded the prisoner to custody, holding the Administrative
Procedure Act inapplicable to deportation hearings.
80 F. Supp.
235. The Court of Appeals affirmed. 84 U.S.App.D.C. 419, 174
F.2d 158. Prisoner's petition for certiorari was not opposed by the
Government and, because the question presented has obvious
importance in the administration of the immigration laws, we
granted review. 338 U.S. 812.
I
The Administrative Procedure Act of June 11, 1946,
supra, is a new, basic, and comprehensive regulation of
procedures in many agencies, more than a few of which can advance
arguments that its generalities should not or do not include them.
Determination of questions of its coverage may well be approached
through consideration of its purposes as disclosed by its
background.
Multiplication of federal administrative agencies and expansion
of their functions to include adjudications
Page 339 U. S. 37
which have serious impact on private rights has been one of the
dramatic legal developments of the past half-century. [
Footnote 2] Partly from restriction by
statute, partly from judicial self-restraint, and partly by
necessity -- from the nature of their multitudinous and
semi-legislative or executive tasks -- the decisions of
administrative tribunals were accorded considerable finality, and
especially with respect to factfinding. [
Footnote 3] The conviction developed, particularly
within the legal profession, that this power was not sufficiently
safeguarded, and sometimes was put to arbitrary and biased use.
[
Footnote 4]
Concern over administrative impartiality and response to growing
discontent was reflected in Congress as early as 1929, when Senator
Norris introduced a bill to create
Page 339 U. S. 38
a separate administrative court. [
Footnote 5] Fears and dissatisfactions increased as
tribunals grew in number and jurisdiction, and a succession of
bills offering various remedies appeared in Congress. [
Footnote 6] Inquiries into the
practices of state agencies, which tended to parallel or follow the
federal pattern, were instituted in several states, and some
studies noteworthy for thoroughness, impartiality, and vision
resulted. [
Footnote 7]
The Executive Branch of the Federal Government also became
concerned as to whether the structure and procedure of these bodies
was conducive to fairness in the administrative process. President
Roosevelt's Committee on Administrative Management, in 1937,
recommended complete separation of adjudicating functions and
personnel from those having to do with investigation or
prosecution. [
Footnote 8] The
President, early in 1939, also directed the Attorney General to
name
"a committee of eminent lawyers, jurists, scholars, and
administrators to review the entire administrative process in the
various
Page 339 U. S. 39
departments of the executive Government and to recommend
improvements, including the suggestion of any needed legislation.
[
Footnote 9]"
So strong was the demand for reform, however, that Congress did
not await the Committee's report, but passed what was known as the
Walter-Logan bill, a comprehensive and rigid prescription of
standardized procedures for administrative agencies. [
Footnote 10] This bill was vetoed by
President Roosevelt December 18, 1940, [
Footnote 11] and the veto was sustained by the House.
[
Footnote 12] But the
President's veto message made no denial of the need for reform.
Rather, it pointed out that the task of the Committee, whose
objective was "to suggest improvements to make the process more
workable and more just," had proved "unexpectedly complex." The
President said, "I should desire to await their report and
recommendations before approving any measure in this complicated
field." [
Footnote 13]
The committee divided in its views, and both the majority and
the minority submitted bills [
Footnote 14] which were introduced in 1941. A
subcommittee of the Senate Judiciary Committee held exhaustive
hearings on three proposed
Page 339 U. S. 40
measures, [
Footnote 15]
but, before the gathering storm of national emergency and war,
consideration of the problem was put aside. Though bills on the
subject reappeared in 1944, [
Footnote 16] they did not attract much attention.
The McCarran-Sumners bill, which evolved into the present Act,
was introduced in 1945. [
Footnote 17] Its consideration and hearing, especially of
agency interests, was painstaking. All administrative agencies were
invited to submit their views in writing. A tentative revised bill
was then prepared, and interested parties again were invited to
submit criticisms. [
Footnote
18] The Attorney General named representatives of the
Department of Justice to canvass the agencies and report their
criticisms, and submitted a favorable report on the bill as finally
revised. [
Footnote 19] It
passed both Houses without opposition, and was signed by President
Truman June 11, 1946. [
Footnote
20]
The Act thus represents a long period of study and strife; it
settles long continued and hard fought contentions, and enacts a
formula upon which opposing social and political forces have come
to rest. It contains many compromises and generalities and, no
doubt, some ambiguities.
Page 339 U. S. 41
Experience may reveal defects. But it would be a disservice to
our form of government and to the administrative process itself if
the courts should fail, so far as the terms of the Act warrant, to
give effect to its remedial purposes where the evils it was aimed
at appear.
II
Of the several administrative evils sought to be cured or
minimized, only two are particularly relevant to issues before us
today. One purpose was to introduce greater uniformity of procedure
and standardization of administrative practice among the diverse
agencies whose customs had departed widely from each other.
[
Footnote 21] We pursue this
no further than to note that any exception we may find to its
applicability would tend to defeat this purpose.
More fundamental, however, was the purpose to curtail and change
the practice of embodying in one person or agency the duties of
prosecutor and judge. The President's Committee on Administrative
Management voiced in 1937 the theme which, with variations in
language, was reiterated throughout the legislative history of the
Act. The Committee's report, which President Roosevelt transmitted
to Congress with his approval as "a great document of permanent
importance," [
Footnote 22]
said:
". . . the independent commission is obliged to carry on
judicial functions under conditions which
Page 339 U. S. 42
threaten the impartial performance of that judicial work. The
discretionary work of the administrator is merged with that of the
judge. Pressures and influences properly enough directed toward
officers responsible for formulating and administering policy
constitute an unwholesome atmosphere in which to adjudicate private
rights. But the mixed duties of the commissions render escape from
these subversive influences impossible."
"Furthermore, the same men are obliged to serve both as
prosecutors and as judges. This not only undermines judicial
fairness; it weakens public confidence in that fairness. Commission
decisions affecting private rights and conduct lie under the
suspicion of being rationalizations of the preliminary findings
which the commission, in the role of prosecutor, presented to
itself."
Administrative Management in the Government of the United
States, Report of the President's Committee on Administrative
Management, 36-37 (1937).
The Committee therefore recommended a redistribution of
functions within the regulatory agencies. "[I]t would be divided
into an administrative section and a judicial section," and the
administrative section "would formulate rules, initiate action,
investigate complaints . . . ," and the judicial section
"would sit as an impartial, independent body to make decisions
affecting the public interest and private rights upon the basis of
the records and findings presented to it by the administrative
section."
Id. at 37.
Another study was made by a distinguished committee named by the
Secretary of Labor, whose jurisdiction at the time included the
Immigration and Naturalization Service. Some of the committee's
observations have relevancy to the procedure under examination
here. It said:
Page 339 U. S. 43
"The inspector who presides over the formal hearing is in many
respects comparable to a trial judge. He has, at a minimum, the
function of determining -- subject to objection on the alien's
behalf -- what goes into the written record upon which decision
ultimately is to be based. Under the existing practice, he has also
the function of counsel representing the moving party -- he does
not merely admit evidence against the alien; he has the
responsibility of seeing that such evidence is put into the record.
The precise scope of his appropriate functions is the first
question to be considered."
The Secretary of Labor's Committee on Administrative Procedure,
The Immigration and Naturalization Service, 77 (Mimeo.1940).
Further:
"Merely to provide that, in particular cases, different
inspectors shall investigate and hear is an insufficient guarantee
of insulation and independence of the presiding official. The
present organization of the field staff not only gives work of both
kinds commonly to the same inspector, but tends toward an identity
of viewpoint as between inspectors who are chiefly doing only one
or the other kind of work. . . ."
". . . We recommend that the presiding inspectors be relieved of
their present duties of presenting the case against aliens, and be
confirmed [
sic] entirely to the duties customary for a
judge. This, of course, would require the assignment of another
officer to perform the task of a prosecuting attorney. The
appropriate officer for this purpose would seem to be the
investigating inspector who, having prepared the case against the
alien, is already thoroughly familiar with it. . . . "
Page 339 U. S. 44
"A genuinely impartial hearing, conducted with critical
detachment, is psychologically improbable, if not impossible, when
the presiding officer has at once the responsibility of appraising
the strength of the case and of seeking to make it as strong as
possible. Nor is complete divorce between investigation and hearing
possible so long as the presiding inspector has the duty himself of
assembling and presenting the results of the investigation. . .
."
Id. at 81-82.
And the Attorney General's Committee on Administrative
Procedure, which divided as to the appropriate remedy, [
Footnote 23] was unanimous that this
evil existed. Its Final Report said:
"These types of commingling of functions of investigation or
advocacy with the function of deciding are thus plainly
undesirable. But they are also avoidable, and should be avoided by
appropriate internal division of labor. For the disqualifications
produced by investigation or advocacy are personal psychological
ones which result from engaging in those types of activity, and the
problem is simply one of isolating those who engage in the
activity. Creation of independent hearing commissioners insulated
from all phases of a case other than hearing and deciding will, the
Committee believes, go far toward solving this problem at the level
of the initial hearing provided the proper safeguards are
established to assure the insulation. . . ."
Rep. Atty.Gen. Comm'n Ad.Proc. 56 (1941), S.Doc. No. 8, 77th
Cong., 1st Sess. 56 (1941).
The Act before us adopts in general this recommended form of
remedial action. A minority of the Committee had, furthermore,
urged an even more thoroughgoing
Page 339 U. S. 45
separation and supported it with a cogent report.
Id.
at 203
et seq.
Such were the evils found by disinterested and competent
students. Such were the facts before Congress which gave impetus to
the demand for the reform which this Act was intended to
accomplish. It is the plain duty of the courts, regardless of their
views of the wisdom or policy of the Act, to construe this remedial
legislation to eliminate, so far as its text permits, the practices
it condemns.
III
Turning now to the case before us, we find the administrative
hearing a perfect exemplification of the practices so unanimously
condemned.
This hearing, which followed the uniform practice of the
Immigration Service, [
Footnote
24] was before an immigrant inspector, who, for purposes of the
hearing, is called the "presiding inspector." Except with consent
of the alien, the presiding inspector may not be the one who
investigated the case. 8 C.F.R. 150.6(b). [
Footnote 25] But the inspector's duties include
investigation of like cases, and while he is today hearing cases
investigated by a colleague, tomorrow his investigation of a case
may be heard before the inspector whose case he passes on today. An
"examining inspector" may be designated to conduct the prosecution,
8 C.F.R. 150.6(n), but none was in this case, and, in any event,
the examining inspector also has the same mixed prosecutive and
hearing functions. The presiding
Page 339 U. S. 46
inspector, when no examining inspector is present, is required
to
"conduct the interrogation of the alien and the witnesses in
behalf of the Government, and shall cross-examine the alien's
witnesses and present such evidence as is necessary to support the
charges in the warrant of arrest."
8 C.F.R. 150.6(b). It may even become his duty to lodge an
additional charge against the alien and proceed to hear his own
accusation in like manner. 8 C.F.R. 150.6(1). Then, as soon as
practicable, he is to prepare a summary of the evidence, proposed
findings of fact, conclusions of law, and a proposed order. A copy
is furnished the alien or his counsel, who may file exceptions and
brief, 8 C.F.R. 150.7, whereupon the whole is forwarded to the
Commissioner. 8 C.F.R. 150.9.
The Administrative Procedure Act did not go so far as to require
a complete separation of investigating and prosecuting functions
from adjudicating functions. But that the safeguards it did set up
were intended to ameliorate the evils from the commingling of
functions as exemplified here is beyond doubt. And this
commingling, if objectionable anywhere, would seem to be
particularly so in the deportation proceedings, where we frequently
meet with a voteless class of litigants who not only lack the
influence of citizens, but who are strangers to the laws and
customs in which they find themselves involved, and who often do
not even understand the tongue in which they are accused. Nothing
in the nature of the parties or proceedings suggests that we should
strain to exempt deportation proceedings from reforms in
administrative procedure applicable generally to federal
agencies.
Nor can we accord any weight to the argument that to apply the
Act to such hearings will cause inconvenience and added expense to
the Immigration Service. Of course it will, as it will to nearly
every agency to which it is applied. But the power of the purse
belongs to Congress, and Congress has determined that the price
Page 339 U. S. 47
for greater fairness is not too high. The agencies, unlike the
aliens, have ready and persuasive access to the legislative ear,
and, if error is made by including them, relief from Congress is a
simple matter.
This brings us to contentions both parties have advanced based
on the pendency in Congress of bills to exempt this agency from the
Act. Following an adverse decision, [
Footnote 26] the Department asked Congress for exempting
legislation, [
Footnote 27]
which appropriate committees of both Houses reported favorably, but
in different form and substance. [
Footnote 28] Congress adjourned without further action.
The Government argues that Congress knows that the Immigration
Service has construed the Act as not applying to deportation
proceedings, and that it "has taken no action indicating
disagreement with that interpretation;" that therefore it "is at
least arguable that Congress was prepared to specifically confirm
the administrative construction by clarifying legislation." We do
not think we can draw that inference from uncompleted steps in the
legislative process.
Cf. Helvering v. Hallock,
309 U. S. 106,
309 U. S.
119-120.
On the other hand, we will not draw the inference, urged by
petitioner, that an agency admits that it is acting upon a wrong
construction by seeking ratification from Congress. Public policy
requires that agencies feel free to ask legislation which will
terminate or avoid adverse contentions and litigations. We do not
feel justified in holding that a request for and failure to get in
a single session of Congress clarifying legislation on a genuinely
debatable point of agency procedure admits weakness in the agency's
contentions. We draw therefore no inference in favor of either
construction of the Act -- from the
Page 339 U. S. 48
Department's request for legislative clarification, from the
congressional committees' willingness to consider it, or from
Congress' failure to enact it.
We come, then, to examination of the text of the Act to
determine whether the Government is right in its contentions,
first, that the general scope of § 5 of the Act does not cover
deportation proceedings, and second, that, even if it does, the
proceedings are excluded from the requirements of the Act by virtue
of § 7.
IV
The Administrative Procedure Act, § 5, establishes a number of
formal requirements to be applicable "[i]n every case of
adjudication required by statute to be determined on the record
after opportunity for an agency hearing." The argument here depends
upon the words "adjudication required by statute." The Government
contends that there is no express requirement for any hearing or
adjudication in the statute authorizing deportation, [
Footnote 29] and that this omission
shields these proceedings from the impact of § 5. Petitioner, on
the other hand, contends that deportation hearings, though not
expressly required by statute, are required under the decisions of
this Court, [
Footnote
30]
Page 339 U. S. 49
and the proceedings therefore are within the scope of § 5.
Both parties invoke many citations to legislative history as to
the meaning given to these key words by the framers, advocates, or
opponents of the Administrative Procedure Act. Because § 5 in the
original bill applied to hearings required "by law," [
Footnote 31] because it was
suggested by the Attorney General that it should be changed to
"required by statute or Constitution," [
Footnote 32] and because it finally emerged "required
by statute," the Government argues that the section is intended to
apply only when explicit statutory words granting a right to
adjudication can be pointed out. Petitioner, on the other hand,
cites references which would indicate that the limitation to
statutory hearing was merely to avoid creating by inference a new
right to hearings where no right existed otherwise. We do not know.
The legislative history is more conflicting than the text is
ambiguous.
But the difficulty with any argument premised on the proposition
that the deportation statute does not require a hearing is that,
without such hearing, there would be no constitutional authority
for deportation. The constitutional requirement of procedural due
process of law derives from the same source as Congress' power to
legislate, and, where applicable, permeates every valid enactment
of that body. It was under compulsion of the Constitution that this
Court long ago held that an antecedent deportation statute must
provide a hearing at least for aliens who had not entered
clandestinely and
Page 339 U. S. 50
who had been here some time, even if illegally. The Court
said:
"This is the reasonable construction of the acts of Congress
here in question, and they need not be otherwise interpreted. In
the case of all acts of Congress, such interpretation ought to be
adopted as, without doing violence to the import of the words used,
will bring them into harmony with the Constitution."
The Japanese Immigrant Case, 189 U. S.
86,
189 U. S.
101.
We think that the limitation to hearings "required by statute"
in § 5 of the Administrative Procedure Act exempts from that
section's application only those hearings which administrative
agencies may hold by regulation, rule, custom, or special
dispensation; not those held by compulsion. We do not think the
limiting words render the Administrative Procedure Act inapplicable
to hearings, the requirement for which has been read into a statute
by the Court in order to save the statute from invalidity. They
exempt hearings of less than statutory authority, not those of more
than statutory authority. We would hardly attribute to Congress a
purpose to be less scrupulous about the fairness of a hearing
necessitated by the Constitution than one granted by it as a matter
of expediency.
Indeed, to so construe the Immigration Act might again bring it
into constitutional jeopardy. When the Constitution requires a
hearing, it requires a fair one, one before a tribunal which meets
at least currently prevailing standards of impartiality. A
deportation hearing involves issues basic to human liberty and
happiness and, in the present upheavals in lands to which aliens
may be returned, perhaps to life itself. It might be difficult to
justify as measuring up to constitutional standards of impartiality
a hearing tribunal for deportation proceedings
Page 339 U. S. 51
the like of which has been condemned by Congress as unfair even
where less vital matters of property rights are at stake.
We hold that the Administrative Procedure Act, § 5, does cover
deportation proceedings conducted by the Immigration Service.
V
The remaining question is whether the exception of § 7(a) of the
Administrative Procedure Act exempts deportation hearings held
before immigrant inspectors. It provides:
"SEC. 7. In hearings which section 4 or 5 requires to be
conducted pursuant to this section --"
"(a) PRESIDING OFFICERS. -- There shall preside at the taking of
evidence (1) the agency, (2) one or more members of the body which
comprises the agency, or (3) one or more examiners appointed as
provided in this Act; but nothing in this Act shall be deemed to
supersede the conduct of specified classes of proceedings in whole
or part by or before boards or other officers specially provided
for by or designated pursuant to statute. . . ."
60 Stat. 237, 241, 5 U.S.C. § 1006.
The Government argues that immigrant inspectors are "specially
provided for by or designated pursuant to" § 16 of the Immigration
Act, which, in pertinent part, reads:
". . . The inspection . . . of aliens, including those seeking
admission or readmission to or the privilege of passing through or
residing in the United States, and the examination of aliens
arrested within the United States under this Act, [
Footnote 33] shall be conducted by
Page 339 U. S. 52
immigrant inspectors, except as hereinafter provided in regard
to boards of special inquiry. . . . Said inspectors shall have
power to administer oaths and to take and consider evidence
touching the right of any alien to enter, reenter, pass through, or
reside in the United States, and, where such action may be
necessary, to make a written record of such evidence. . . ."
39 Stat. 874, 885, as amended, 8 U.S.C. § 152.
Certainly nothing here specifically provides that immigrant
inspectors shall conduct deportation hearings or be designated to
do so. This language does direct them to conduct border inspections
of aliens seeking admission. They may administer oaths and take,
record, and consider evidence. But these functions are
indispensable to investigations which are concededly within their
competence. And these functions are likewise necessary to enable
the preparation of complaints for prosecutive purposes. But that
Congress, by grant of these powers, has specially constituted them
or provided for their designation as hearing officers in
deportation proceedings does not appear.
Section 7(a) qualifies as presiding officers at hearings the
agency and one or more of the members of the body comprising the
agency, and it also leaves untouched any others whose
responsibilities and duties as hearing officers are established by
other statutory provision. But, if hearings are to be had before
employees whose responsibility and authority derives from a lesser
source, they must be examiners whose independence and tenure are so
guarded by the Act as to give the assurances of neutrality which
Congress thought would guarantee the impartiality of the
administrative process.
We find no basis in the purposes, history or text of this Act
for judicially declaring an exemption in favor of deportation
proceedings from the procedural safeguards
Page 339 U. S. 53
enacted for general application to administrative agencies. We
hold that deportation proceedings must conform to the requirements
of the Administrative Procedure Act if resulting orders are to have
validity. Since the proceeding in the case before us did not comply
with these requirements, we sustain the writ of habeas corpus and
direct release of the prisoner.
Reversed.
MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the
consideration or decision of this case.
[
Footnote 1]
Particularly invoked are § 5(c), 60 Stat. 237, 240, 5 U.S.C. §
1004(c), which provides in part:
"The same officers who preside at the reception of evidence
pursuant to section 7 shall make the recommended decision or
initial decision required by section 8 except where such officers
become unavailable to the agency. Save to the extent required for
the disposition of
ex parte matters as authorized by law,
no such officer shall consult any person or party on any fact in
issue unless upon notice and opportunity for all parties to
participate; nor shall such officer be responsible to or subject to
the supervision or direction of any officer, employee, or agent
engaged in the performance of investigative or prosecuting
functions for any agency. No officer, employee, or agent engaged in
the performance of investigative or prosecuting functions for any
agency in any case shall, in that or a factually related case,
participate or advise in the decision, recommended decision, or
agency review pursuant to section 8 except as witness or counsel in
public proceedings. . . . ;"
and § 11, 60 Stat. at 244, 5 U.S.C. § 1010, which provides in
part:
"Subject to the civil service and other laws to the extent not
inconsistent with this Act, there shall be appointed by and for
each agency as many qualified and competent examiners as may be
necessary for proceedings pursuant to sections 7 and 8, who shall
be assigned to cases in rotation so far as practicable and shall
perform no duties inconsistent with their duties and
responsibilities as examiners. Examiners shall be removable by the
agency in which they are employed only for good cause established
and determined by the Civil Service Commission (hereinafter called
the Commission) after opportunity for hearing and upon the record
thereof. Examiners shall receive compensation prescribed by the
Commission independently of agency recommendations or ratings and
in accordance with the Classification Act of 1923, as amended,
except that the provisions of paragraphs (2) and (3) of subsection
(b) of section 7 of said Act, as amended, and the provisions of
section 9 of said Act, as amended, shall not be applicable. . .
."
[
Footnote 2]
See e.g., Blachly and Oatman, Administrative
Legislation and Adjudication 1 (1934); Landis, The Administrative
Process 1 (1938); Pound, Administrative Law 27 (1942); Carrow,
Background of Administrative Law 1 (1948); The Federal
Administrative Procedure Act and the Administrative Agencies 4
(N.Y.U.1947); Final Report of Attorney General's Committee on
Administrative Procedure 7 (1941), contained in S.Doc. No. 8, 77th
Cong., 1st Sess. (1941); Cushman, The Independent Regulatory
Commissions, cc. II-V (1941); Frankfurter, The Task of
Administrative Law, 75 U. of Pa.L.Rev. 614 (1927); materials cited
in
n 4,
infra.
[
Footnote 3]
See e.g., Dickinson, Administrative Justice and the
Supremacy of Law,
passim (1927); Final Report of Attorney
General's Committee on Administrative Procedure,
supra at
11-18, 75-92,
and see materials cited in
n 4,
infra.
[
Footnote 4]
E.g., Root, Public Service by the Bar, 41 A.B.A.Rep.
355, 368 (1916); Hughes, Some Aspects of the Development of
American Law, 39 N.Y.B.A.Rep. 266, 269 (1916); Sutherland, Private
Rights & Government Control, 42 A.B.A.Rep. 197, 205 (1917);
Address of President Guthrie, 46 N.Y.B.A.Rep. 169, 186 (1923).
After 1933, when the American Bar Association formed a Special
Committee on Administrative Law, the Bar's concern can be traced in
this Committee's reports.
E.g., 58 A.B.A.Rep. 197, 407
(1933); 59 A.B.A.Rep. 539 (1934); 61 A.B.A.Rep. 720 (1936); 62
A.B.A.Rep. 789 (1937).
[
Footnote 5]
S. 5154, 70th Cong., 2d Sess. (1929).
[
Footnote 6]
S. 1835, 73d Cong., 1st Sess. (1933); S. 3787, H.R. 12297, 74th
Cong., 2d Sess. (1936); S. 3676, 75th Cong., 3d Sess. (1938); H.R.
6324, H.R. 4235, H.R. 4236, S. 915, S. 916, 76th Cong., 1st Sess.
(1939); S. 674, S. 675, S. 918, H.R. 3464, H.R. 4238, H.R. 4782,
77th Cong., 1st Sess. (1941); H.R. 4314, H.R. 5081, H.R. 5237, S.
2030, 78th Cong., 2d Sess. (1944); H.R. 1203, S. 7, 79th Cong., 1st
Sess. (1945).
[
Footnote 7]
E.g., Benjamin, Administrative Adjudication in the New
York (1942); Tenth Biennial Report of the Judicial Council to the
Governor and Legislature of California (1944).
See also
Fesler, The Independence of State Regulatory Agencies (1942);
Handbook of the National Conference of Commissioners on Uniform
State Laws, 226
et seq. (1943); 63 A.B.A.Rep. 623
(1938).
[
Footnote 8]
Administrative Management in the Government of the United
States, Report of the President's Committee on Administrative
Management 37 (1937).
[
Footnote 9]
The quoted statement is from President Roosevelt's message to
Congress of December 18, 1940, vetoing H.R. 6324, the so-called
Walter-Logan bill. H.R.Doc. No. 986, 76th Cong., 3d Sess., 3-4
(1940). The origin and orders leading to the creation of the
Attorney General's Committee are set out in Appendix A of the
Committee's Final Report,
supra.
[
Footnote 10]
S. 915, H.R. 6324, 76th Cong., 1st Sess. (1939).
[
Footnote 11]
86 Cong.Rec. 13942-3 (1940), reprinted in H.R.Doc. No. 986, 76th
Cong., 3d Sess. (1940).
[
Footnote 12]
86 Cong.Rec. 13953 (1940).
[
Footnote 13]
86 Cong.Rec. at 13943; H.R.Doc. No. 986,
supra, 4.
[
Footnote 14]
These bills appear at pp. 192 and 217 of the Committee's Final
Report,
supra. The majority bill became S. 675, 77th
Cong., 1st Sess. (1941), and the minority recommendation was
embodied in S. 674, 77th Cong., 1st Sess. (1941).
[
Footnote 15]
The hearings ran from April 2 to July 2, 1941, and, with an
appendix, have been collected in four parts and over 1,600 pages.
Hearings before Subcommittee of the Committee on the Judiciary on
S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. (1941).
[
Footnote 16]
H.R. 4314, H.R. 5081, H.R. 5237, S. 2030, 78th Cong., 2d Sess.
(1944).
[
Footnote 17]
S. 7 and H.R. 1203, 79th Cong., 1st Sess. (1945).
[
Footnote 18]
See H.R.Rep. No.1980, 79th Cong., 2d Sess. 14-15 (1946); S.Rep.
No. 752, 79th Cong., 1st Sess. 4-5 (1945), reprinted in S.Doc. No.
248, 79th Cong., 2d Sess. at 185, 190-191, and 233, 248-249,
respectively.
[
Footnote 19]
S.Rep. No. 752, 79th Cong., 1st Sess. 37-45 (1945); 92 Cong.Rec.
App. A-2982-5 (1946).
[
Footnote 20]
92 Cong.Rec. 2167 (1946) (passage by the Senate); 92 Cong.Rec.
5668 (1946) (amended version passed by House); 92 Cong.Rec. 5791
(1946) (House version agreed to by Senate); 92 Cong.Rec. 6706
(1946) (approved by the President).
[
Footnote 21]
H.R.Rep. No.1980, 79th Cong., 2d Sess. 16 (1946); Final Report
of the Attorney General's Committee on Administrative Procedure, 20
(1941); McFarland, Analysis of the Federal Administrative Procedure
Act, in Federal Administrative Procedure Act and the Administrative
Agencies 16, 22 (N.Y.U.1947).
See also Hearings before
Subcommittee No. 4 of the House Committee on the Judiciary on H.R.
4236, H.R. 6198, and H.R. 6324, 76th Cong., 1st Sess. 14, 31
(1939); S.Rep. No. 442, 76th Cong., 1st Sess. 9 (1939); H.R.Rep.
No. 1149, 76th Cong., 1st Sess. 2-3 (1939); S.Doc. No. 71, 76th
Cong., 1st Sess. 5 (1939).
[
Footnote 22]
81 Cong.Rec. 187, 191 (1937).
[
Footnote 23]
See n 14,
supra.
[
Footnote 24]
See 8 C.F.R. 150.1
et seq.
[
Footnote 25]
The initial step in a deportation case is the investigation of
an alien by an immigrant inspector. 8 C.F.R. 150.1. This is
followed by issuance of a warrant of arrest, 8 C.F.R. 150.2-150.4,
and incarceration, unless the alien is released under bond. 8
C.F.R. 150.5. The formal hearing follows.
[
Footnote 26]
Eisler v. Clark, 77 F. Supp.
610 (1948).
[
Footnote 27]
S. 2755 and H.R. 6652, 80th Cong., 2d Sess. (1948).
[
Footnote 28]
S.Rep. No. 1588, H.R.Rep. No. 2140, 80th Cong., 2d Sess.
(1948).
[
Footnote 29]
Section 19(a) of the Immigration Act of February 5, 1917, 39
Stat. 874, 889, as amended, 8 U.S.C. § 155(a), provides in
part:
". . . any alien who shall have entered or who shall be found in
the United States in violation of this Act, or in violation of any
other law of the United States . . . shall, upon the warrant of the
Attorney General, be taken into custody and deported. . . . In
every case where any person is ordered deported from the United
States under the provisions of this Act, or of any law or treaty,
the decision of the Attorney General shall be final."
See Note 33
infra.
[
Footnote 30]
The Japanese Immigrant Case, 189 U. S.
86,
189 U. S.
100-101;
Kwock Jan Fat v. White, 253 U.
S. 454,
253 U. S. 459,
253 U. S. 464;
Bridges v. Wixon, 326 U. S. 135,
326 U. S. 160
(concurring opinion).
[
Footnote 31]
Section 301 of the bills proposed in the majority and minority
recommendations of the Final Report of the Attorney General's
Committee on Administrative Procedure, pp. 195, 232-233.
[
Footnote 32]
Hearings before a Subcommittee of the Senate Committee on the
Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. 1456
(1941).
[
Footnote 33]
The original Act, 39 Stat. 886, reads "under this Act,"
although, in the codification, 8 U.S.C. § 152, it reads "under this
section." The former is controlling. 1 U.S.C. (Supp. II, 1949) §§
112, 204(a).
MR. JUSTICE REED, dissenting.
The Court, it seems to me, has disregarded a congressional
exemption of certain agencies, including the Immigration and
Naturalization Service, from some of the requirements of the
Administrative Procedure Act. Such judicial intrusion into the
legislative domain justifies a protest. It may be useful to call
attention to the necessity of recognizing specific exceptions to
general rules. This protest is rested on the ground that immigrant
inspectors performing duties under § 16 of the Immigration Act are
within the exception provided by § 7(a) of the Administrative
Procedure Act. The Court's opinion discusses this point under
subdivision V. The sections are there set out and can be examined
by the reader.
In this case, no one questions the constitutionality of the
hearing Wong received before the immigrant inspector, with
administrative review by the Commissioner and the Board of
Immigration Appeals. The question on which I disagree with the
Court is whether the Administrative Procedure Act permits an
inspector of the Immigration and Naturalization Service to serve as
a presiding officer at a deportation hearing.
Page 339 U. S. 54
Section 7(a) of the Administrative Procedure Act provides that
the official presiding at the taking of evidence shall be an
agency, an agency member or an examiner appointed under that Act.
There is an exception to this requirement. It reads as follows:
"but nothing in this Act shall be deemed to supersede the
conduct of specified classes of proceedings in whole or part by or
before boards or other officers specially provided for by or
designated pursuant to statute."
It is this exception that made it proper for an immigrant
inspector to preside at this deportation hearing.
Under § 16 of the Immigration Act, 39 Stat. 874, 885, the
"inspection . . . of aliens, including those seeking admission
or readmission to or the privilege of passing through or residing
in the United States, and the examination of aliens arrested within
the United States under this Act, shall be conducted by immigrant
inspectors. . . . Said inspectors shall have power to administer
oaths and to take and consider evidence touching the right of any
alien to enter, reenter, pass through, or reside in the United
States, and, where such action may be necessary, to make a written
record of such evidence. . . ."
It seems to me obvious that the exception provided in § 7(a)
covers immigrant inspectors dealing with the arrest of an alien for
violation of the Immigration Act. The examination of arrested
aliens at a deportation proceeding is surely a specified class of
proceedings under § 7(a) of the Administrative Procedure Act, and
it is surely conducted by an officer "specially provided for by . .
. statute."
The reason for the exception in § 7(a) was not spelled out in
the legislative history or in the Act itself. The
Page 339 U. S. 55
exception may have been made to retain smoothness of operation
in the several agencies where there were officials specially
provided for by statute or designated pursuant to a statute. When
making exceptions from the requirements as to separation of the
investigatory and adjudicatory functions, it was natural to include
officers specially designated by statute to sit in judgment. Agency
members are excluded from these requirements of the Administrative
Procedure Act. They, too, have investigatory and adjudicatory
duties. Since the members of the agency and the statutorily
designated officers were specially selected for the functions they
were to perform, Congress probably reposed confidence in their
experience and expertness. It doubtless did not wish to disorganize
administration until time showed whether that confidence was well
placed.
*
Since the Court does not accept my view of the reach of § 7(a),
it would be useless to undertake an analysis of the other questions
presented by the petition for certiorari.
* Thus, the congressional committee warned that, should the
exception
"be a loophole for avoidance of the examiner system in any real
sense, corrective legislation would be necessary. That provision is
not intended to permit agencies to avoid the use of examiners, but
to preserve special statutory types of hearing officers who
contribute something more than examiners could contribute and, at
the same time, assure the parties fair and impartial
procedure."
S.Doc. No. 248, 79th Cong.2d Sess., p. 216.