1. Under § 20(a) of the Immigration Act, as amended by § 23 of
the Internal Security Act, the Attorney General may, in his
discretion, hold in custody without bail, pending determination as
to their deportability, aliens who are members of the Communist
Party of the United States when there is reasonable cause to
believe that their release on bail would endanger the safety and
welfare of the United States. Pp.
342 U. S.
526-547.
2. The lack of a clause in the Constitution specifically
empowering such action does not render Congress impotent to require
the expulsion of resident alien Communists. Pp.
342 U. S.
533-537.
(a) So long as aliens fail to obtain and maintain citizenship by
naturalization, they remain subject to the plenary power of
Congress to expel them under the sovereign right to determine what
noncitizens shall be permitted to remain within our borders. P.
342 U. S.
534.
(b) The doctrines and practices of Communism teach the use of
force to achieve political control clearly enough to give
constitutional basis, according to any theory of reasonableness or
arbitrariness, for Congress to expel known alien Communists. Pp.
342 U. S.
534-536.
3. Under orders from the Acting Commissioner of Immigration,
certain aliens were arrested under warrants issued after enactment
of the Internal Security Act, charging them with being members of
the Communist Party and directing that they be held in custody
pending determination of deportability. They petitioned for habeas
corpus. Respondent filed returns alleging that there was reasonable
cause to believe that their release would endanger the welfare and
safety of the United States. Later, he filed affidavits that the
Service had evidence indicating that each petitioner was,
Page 342 U. S. 525
at the time of arrest, a member of the Communist Party, and had,
since 1930, participated, or was then actively participating, in
the Party's indoctrination of others to the prejudice of the public
interest.
Held:
(a) The refusal of bail in these cases was not arbitrary or
capricious, or an abuse of power, and did not violate the Due
Process Clause of the Fifth Amendment. Pp.
342 U. S.
537-542.
(1) The discretion as to bail vested in the Attorney General by
the Internal Security Act was broad enough to justify petitioners'
detention without bail as a menace to the public interest. Pp.
342 U. S.
537-541.
(2) There is no denial of due process under the Fifth Amendment
in the detention of alien Communists without bail, pending
determination of deportability, where there is reasonable cause to
believe that their release on bail would endanger the safety and
welfare of the United States. Pp.
342 U. S.
541-542.
(b) The delegation to the Attorney General of discretionary
authority to detain such aliens without bail pending deportation
hearings does not constitute an unlawful delegation of legislative
power or violate the Due Process Clause of the Fifth Amendment,
because the statute contains definite legislative standards for
deportation and such authority is to be exercised within the
framework of the Subversive Activities Control Act to guard against
Communist activities pending deportation hearings. Pp.
342 U. S.
542-544.
(c) The Eighth Amendment does not require that bail be allowed
in the circumstances of these cases. Pp.
342 U.S. 544-546.
4. Prior to enactment of the Internal Security Act, an alien
Communist was arrested under a warrant charging that he was subject
to deportation as an alien member of an organization advocating the
violent overthrow of the Government, but he was released on bail.
After the effective date of the Act, he was again taken into
custody under the same warrant, and held without bail under an
order from the Acting Commissioner of Immigration, based on §§ 22
and 23 of the Internal Security Act.
Held: he must be released unless, within a reasonable
time, in the discretion of the court, he is rearrested under a new
warrant. Pp.
342 U. S. 531,
342 U. S.
546-547.
187 F.2d 991, affirmed.
187 F.2d 802, judgment vacated and cause remanded.
No. 35. In habeas corpus proceedings, a district court held that
respondent had not abused his discretion in ordering petitioners
held without bail pending deportation
Page 342 U. S. 526
hearings. 94 F. Supp. 18. The Court of Appeals reversed. 186
F.2d 183. On rehearing and after introduction of certain evidence,
the district court again sustained petitioners' detention without
bail. The Court of Appeals affirmed. 187 F.2d 991. This Court
granted certiorari. 342 U.S. 807.
Affirmed, p.
342 U. S.
547.
No. 136. In a habeas corpus proceeding, the district court
sustained detention of respondent without bail pending
determination of deportability. The Court of Appeals reversed. 187
F.2d 802. This Court granted certiorari. 342 U.S. 810. Judgment
vacated and cause remanded, p.
342 U. S.
547.
MR. JUSTICE REED delivered the opinion of the Court.
These cases present a narrow question with several related
issues. May the Attorney General, as the executive head of the
Immigration and Naturalization Service, [
Footnote 1] after taking into custody active alien
communists on warrants, [
Footnote
2] charging either membership in a group that advocates
Page 342 U. S. 527
the overthrow by force of this Government [
Footnote 3] or inclusion in any prohibited classes
of aliens, [
Footnote 4]
continue them in custody without bail at his discretion pending
determination as to their deportability, under § 23 of the
Page 342 U. S. 528
Internal Security Act? [
Footnote
5] Differing views of the Courts of Appeals led us to grant
certiorari. 342 U.S. 807.
I.
Facts. -- The four petitioners in case No. 35 were
arrested under warrants, issued after the enactment of the Internal
Security Act of 1950, charging each with being an alien who was a
member of the Communist Party of the United States. [
Footnote 6] The warrants directed that they
be held in custody [
Footnote 7]
pending determination
Page 342 U. S. 529
of deportability. [
Footnote
8] Petitions for habeas corpus were promptly filed alleging
that the detention without bond was in violation of the Due Process
Clause of the Fifth Amendment [
Footnote 9] and the Eighth Amendment to the Constitution
of the United States, and that § 20 of the Immigration Act, as
amended, was also unconstitutional.
See note 5 supra. The allegation appears
below. [
Footnote 10]
Respondent filed returns defending his orders of detention on
the ground that there was reasonable cause to believe that
petitioners' release would be prejudicial to the public interest
and would endanger the welfare and safety of the United States.
These returns were countered by petitioners with allegations of
their many years' residence spent in this country without giving
basis for fear of action by them inimical to the public welfare
during the pendency of their deportation proceedings,
Page 342 U. S. 530
their integration into community life through marriage and
family connections, and their meticulous adherence to the terms of
previous bail, allowed under a former warrant charging
deportability.
See note
8 supra. On consideration of these undenied
allegations, the trial court determined that the Director had not
been shown to have abused his discretion. [
Footnote 11] This order was reversed on the
ground that the Director
"must state some fact upon which a reasonable person could
logically conclude that the denial of bail is required to protect
the country or to secure the alleged alien's presence for
deportation should an order to that effect be the result of the
hearing. [
Footnote 12]"
On rehearing, the Director made allegation, supported by
affidavits, that the Service's dossier of each petitioner contained
evidence indicating to him that each was, at the time of arrest, a
member of the Communist Party of the United States, and had, since
1930, participated, or was then actively participating, in the
Party's indoctrination of others to the prejudice of the public
interest. There was no denial of these allegations by any of the
petitioners, except Hyun, or any assertion that any of them had
completely severed all Communist affiliations or connections.
[
Footnote 13] As to Hyun,
the denial was formal, and did not include any affidavit denying
the facts stated in the Director's affidavit. As the allegations
are set out by the Court of Appeals in the carefully detailed
opinion of Circuit Judge Stephens, we refrain from any further
restatement
Page 342 U. S. 531
here. [
Footnote 14] The
Court of Appeals affirmed the District Court's determination that
there was substantial evidence to support the discretion exercised
in denying bail.
Respondent Zydok, in case No. 136, was arrested in August, 1949,
under a recent warrant charging that he was subject to deportation
as an alien with membership in an organization advocating the
violent overthrow of the Government. Act of October 16, 1918, as
amended, 8 U.S.C. (1946 ed.) § 137. At that time, he was released
on $2,000 bail. Later, a deportation hearing was held by the
Immigration and Naturalization Service, but this Court's decision
in
Wong Yang Sung v. McGrath, 339 U. S.
33, necessitated a second deportation hearing.
After the effective date, September 23, 1950, of the Internal
Security Act of 1950, 64 Stat. 987, respondent was again taken into
custody by petitioner on the 1949 warrant, pursuant to radiogram
direction from the Acting Commissioner of Immigration and
Naturalization referring to § 20 of the Immigration Act of 1917, as
amended by § 23 of the Internal Security Act. The respondent was
held without bail by petitioner under an order from the Acting
Commissioner of Immigration. The rearrest was based on § 22 of the
Internal Security Act of 1950, which provides for the deportation
of aliens who are members of or affiliated with the Communist
Party. 8 U.S.C. (Supp. IV) § 137.
Thereupon, respondent filed a petition for writ of habeas corpus
in the United States District Court for the Eastern District of
Michigan, challenging the validity of his detention without bail.
The District Court found that petitioner was an alien. and had been
and was, on arrest, a member of the Communist Party. The court
determined
Page 342 U. S. 532
that there had been no abuse of administrative discretion in
refusing bail and denied the petition for habeas corpus, 94 F.
Supp. 338. [
Footnote 15]
The Court of Appeals for the Sixth Circuit, 187 F.2d 802,
reversed the District Court, holding that, in determining denial of
bail, the Attorney General could not rest on membership alone in
the Communist Party, but was under the duty to consider also the
likelihood that the alien would appear when ordered to do so under
the circumstances as developed in the habeas corpus hearing. The
court thought the failure of the Attorney General to allow bail was
an abuse of discretion.
That court agreed that the District Court was correct in finding
that Zydok was a member of the Communist Party, and had been, in
1949, the financial secretary of its Hamtramck Division. The
respondent's testimony justifies the District Court's finding set
out in the margin. [
Footnote
16] The record shows other information in the files of the
Attorney General, such as attendance at closed meetings of the
Party and the Michigan State Convention. The opinion succinctly
sets out the facts concerning respondent's integration into
American life. We adopt that statement. [
Footnote 17] It was said:
"Discretion does not mean decision upon one particular fact or
set of facts. It means, rather, a just
Page 342 U. S. 533
and proper decision in view of all the attending circumstances.
The Styria v. Morgan, 186 U. S. 1,
186 U. S.
9. There are many circumstances which involve
decision."
187 F.2d 802, 803. The Court of Appeals concluded:
"We think that a fair consideration of the factors above set
out, in their aggregate, require that appellant should have been
granted bail in some reasonable amount. This view is more nearly in
accordance with the spirit of our institutions as it relates even
to those who seek protection from the laws which they incongruously
seek to destroy.
See Carlson v. Landon, Dist. Director,
186 F.2d 183;
United States ex rel. Potash v. Dist.
Director, 169 F.2d 747, 752."
187 F.2d 804.
II.
The Issues. -- Petitioners in No. 35, the
Carlson case, and respondent in No. 136, the
Zydok case, seek, respectively, reversal or affirmance,
principally on the same grounds. It is urged that the denial of
bail to each was arbitrary and capricious, a violation of the Fifth
Amendment;
Page 342 U. S. 534
that, where there is no evidence to justify a fear of
unavailability for the hearings or for the carrying out of a
possible judgment of deportation, denial of bail under the
circumstances of these cases is an abuse of discretion, and
violates a claimed right to reasonable bail secured by the Eighth
Amendment to the Constitution. Zydok urges also that there was an
abuse of discretion in rearresting him when there was no change of
circumstances after his previous release under bond on the same
warrant. There are other minor contentions as to irregularities in
the proceedings that appear to us immaterial to our consideration
of these cases.
The basis for the deportation of presently undesirable aliens
resident in the United States is not questioned, and requires no
reexamination. When legally admitted, they have come at the
Nation's invitation, as visitors or permanent residents, to share
with us the opportunities and satisfactions of our land. As such
visitors and foreign nationals, they are entitled, in their persons
and effects, to the protection of our laws. So long, however, as
aliens fail to obtain and maintain citizenship by naturalization,
they remain subject to the plenary power of Congress to expel them
under the sovereign right to determine what noncitizens shall be
permitted to remain within our borders. [
Footnote 18]
Changes in world politics and in our internal economy bring
legislative adjustments affecting the rights of various classes of
aliens to admission and deportation. [
Footnote 19] The
Page 342 U. S. 535
passage of the Internal Security Act of 1950 marked such a
change of attitude toward alien members of the Communist Party of
the United States. Theretofore, there was a provision for the
deportation of alien anarchists and other aliens who are or were
members of organizations devoted to the overthrow by force and
violence of the Government of the United States, but the Internal
Security Act made Communist membership alone of aliens a sufficient
ground for deportation. [
Footnote 20] The reasons for the exercise of power are
summarized in Title I of the Internal Security Act. It is
sufficient here to print § 2(15). [
Footnote 21] We have no doubt that the doctrines and
practices of
Page 342 U. S. 536
Communism clearly enough teach the use of force to achieve
political control to give constitutional basis, according to any
theory of reasonableness or arbitrariness, for Congress to expel
known alien communists under its power to regulate the exclusion,
admission and expulsion of aliens. [
Footnote 22] Congress had before it evidence of resident
aliens' leadership in communist domestic activities sufficient to
furnish reasonable ground for action against alien resident
Communists. The bar against the admission of Communists cannot be
differentiated as a matter of power from that against anarchists
upheld unanimously half a century ago in the exclusion of Turner.
[
Footnote 23] Since
"[i]t is thoroughly established that Congress has power to order
the deportation of aliens whose presence in the country it deems
hurtful, [
Footnote 24]"
the fact that petitioners, and respondent Zydok, were made
deportable after entry is immaterial. They are deported for what
they are now, not for what they were. [
Footnote 25] Otherwise, when an alien once legally
became a denizen of this country, he could not be deported
Page 342 U. S. 537
for any reason of which he had not been forewarned at the time
of entry. Mankind is not vouchsafed sufficient foresight to justify
requiring a country to permit its continuous occupation in peace or
war by legally admitted aliens, even though they never violate the
laws in effect at their entry. The protection of citizenship is
open to those who qualify for its privileges. The lack of a clause
in the Constitution specifically empowering such action has never
been held to render Congress impotent to deal as a sovereign with
resident aliens. [
Footnote
26]
III.
Constitutionality. -- A.
Arbitrary,
capricious, abuse of discretion. -- The power to expel aliens,
being essentially a power of the political branches of government,
the legislative and executive, may be exercised entirely through
executive officers, "with such opportunity for judicial review of
their action as congress may see fit to authorize or permit." This
power is, of course, subject to judicial intervention under the
"paramount law of the constitution." [
Footnote 27]
Deportation is not a criminal proceeding, and has never been
held to be punishment. No jury sits. No judicial review is
guaranteed by the Constitution. [
Footnote 28] Since deportation is a particularly drastic
remedy where aliens have
Page 342 U. S. 538
become absorbed into our community life, [
Footnote 29] congress has been careful to
provide for full hearing by the Immigration and Naturalization
Service before deportation. Such legislative provision requires
that those charged with that responsibility exercise it in a manner
consistent with due process. [
Footnote 30] Detention is necessarily a part of this
deportation procedure. Otherwise, aliens arrested for deportation
would have opportunities to hurt the United States during the
pendency of deportation proceedings. Of course, purpose to injure
could not be imputed generally to all aliens subject to
deportation, so discretion was placed by the 1950 Act in the
Attorney General to detain aliens without bail, as set out in
note 5 supra.
[
Footnote 31]
The change in language seems to have originated in H.R. 10, 81st
Cong., 1st Sess., introduced by Representative Sam Hobbs of Alabama
on January 3, 1949. It was
Page 342 U. S. 539
intended to clarify the procedure in dealing with deportees and
to "expressly authorize the Attorney General, in his discretion, to
hold arrested aliens in custody." [
Footnote 32] The need for clarification arose from
varying interpretations of the authority to grant bail under the
former bail provision.
Note
31 supra. In
Prentis v. Manoogian, 16 F.2d
422, 424, the Court of Appeals for the Sixth Circuit had held that,
by the earlier provision,
"Congress intended to grant to the alien a right, and that its
failure to follow with some such phrase as 'at the discretion of
the commissioner' vests the discretion to avail himself of the
opportunity afforded in the alien, and not the discretion to allow
bail in the commissioner or director."
On the other hand, in
United States ex rel. Zapp v. District
Director, 120 F.2d 762, the Court of Appeals for the Second
Circuit construed the provision to the contrary. It said:
"The natural interpretation of the language used, that the alien
'may be released under a bond,' would indicate that the release is
discretionary with the Attorney General, and that appears to be
borne out by other provisions of this section, as well as other
sections of the immigration laws, where the choice of words appears
to have significance."
120 F.2d at 765.
In the later case of
United States ex rel. Potash v.
District Director, 169 F.2d 747, the same court applied its
Zapp opinion to explain that the Service's discretion as
to bail was not untrammeled, but subject to judicial review.
[
Footnote 33] It
Page 342 U. S. 540
was in the light of these cases that Congress inserted in the
bail provisions the phrase "in the discretion of the Attorney
General," the lack of which very phrase the
Manoogian case
held made bail a right of the detained alien. The present statute
does not grant bail as a matter of right.
The Government does not urge that the Attorney General's
discretion is not subject to any judicial review, but merely that
his discretion can be overturned only on a showing of clear abuse.
[
Footnote 34] We proceed on
the basis suggested by the Government. It is first to be observed
that the language of the reports is emphatic in explaining
Congress' intention to make the Attorney General's exercise of
discretion presumptively correct, and unassailable except for
abuse. We think the discretion reposed in the Attorney General is
at least as great as that found by the Second Circuit in the
Potash case,
supra, to be in him under the former
bail provision. It can only be
Page 342 U. S. 541
overridden where it is clearly shown that it "was without a
reasonable foundation."
The four petitioners in the
Carlson case were active in
Communist work. In the
Zydok case, the only evidence is
membership in the Party, attendance at closed sessions, and the
holding of the office of financial secretary of its Hamtramck
Division. This evidence goes beyond unexplained membership, and
shows a degree, minor perhaps in Zydok's case, of participation in
Communist activities. As the purpose of the Internal Security Act
to deport all alien Communists as a menace to the security of the
United States is established by the Internal Security Act itself,
Title I, § 2, we conclude that the discretion as to bail in the
Attorney General was certainly broad enough to justify his
detention to all these parties without bail as a menace to the
public interest. As all alien Communists are deportable, like
Anarchists, because of Congress' understanding of their attitude
toward the use of force and violence in such a constitutional
democracy as ours to accomplish their political aims, evidence of
membership plus personal activity in supporting and extending the
Party's philosophy concerning violence gives adequate ground for
detention. It cannot be expected that the Government should be
required in addition to show specific acts of sabotage or
incitement to subversive action. Such an exercise of discretion is
well within that heretofore approved in
Knauff v.
Shaughnessy, 338 U. S. 537,
338 U. S. 541.
[
Footnote 35] There is
no
Page 342 U. S. 542
evidence or contention that all persons arrested as deportable
under § 22 of the Internal Security Act,
note 4 supra, for Communist membership are
denied bail. In fact, a report filed with this Court by the
Department of Justice in this case at our request shows allowance
of bail in the large majority of cases. The refusal of bail in
these cases is not arbitrary or capricious, or an abuse of power.
There is no denial of the due process of the Fifth Amendment under
circumstances where there is reasonable apprehension of hurt from
aliens charged with a philosophy of violence against this
Government.
B.
Delegation of Legislative Power. -- This leaves for
consideration the constitutionality of this delegation of
authority. We consider first the objection to the alleged unbridled
delegation of legislative power in that the Attorney General is
left without standards to determine when to admit to bail and when
to detain. It is familiar law that, in such an examination, the
entire Act is to be looked at, and the meaning of the words
determined by their surroundings and connections. Congress can only
legislate so far as is reasonable and practicable, and must leave
to executive officers the authority to accomplish its purpose.
[
Footnote 36] Congress need
not make specific standards for each subsidiary executive action in
carrying out a policy. [
Footnote
37] The bail provision applies to many
Page 342 U. S. 543
classes of deportable aliens other than those named in the
classes listed in § 22 of the Internal Security Act.
See
note 4 supra.
[
Footnote 38] A wide range
of discretion in the Attorney General as to bail is required to
meet the varying situations arising from the many aliens in this
country. [
Footnote 39]
The policy and standards as to what aliens are subject to
deportation are, in general, clear and definite. 8 U.S.C. §§ 137
and 155. Specifically, when dealing with alien Communists, as in
these cases, the legislative standard for deportation is definite.
See notes
3 and |
3 and S. 524fn4|>4,
supra. In carrying out that policy, the Attorney General
is not left with untrammeled discretion as to bail. Courts review
his determination. Hearings are had, and he must justify his
refusal of bail by reference to the legislative scheme to eradicate
the evils of Communist activity. The legislative judgment of evils
calling for the 1950 �
3 and S.
544� amendments to deportation legislation is set out in the
introductory sections of the Subversive Activities Control Act.
[
Footnote 40] So far as
pertinent to these proceedings, the new legislation was designed to
eliminate the subversive activities of resident aliens who seek to
inculcate the doctrine of force and violence into the political
philosophy of the American people. To this end, provision was made
for the detention and deportation of certain noncitizens, including
members of the Communist Party. When, in the judgment of the
Attorney General, an alien Communist may so conduct himself pending
deportation hearings as to aid in carrying out the objectives of
the world communist movement, that alien may be detained.
Compare Yakus v. United States, 321 U.
S. 414,
and Bowles v. Willingham, 321 U.
S. 503,
321 U. S. 515.
This is a permissible delegation of legislative power, because the
executive judgment is limited by adequate standards. The authority
to detain without bail is to be exercised within the framework of
the Subversive Activities Control Act to guard against Communist
activities pending deportation hearings.
Cf. Mabler v.
Eby, 264 U. S. 32,
264 U. S. 40. We
do not see that such discretion violates the Due Process Clause of
the Fifth Amendment.
C.
Violation of Eighth Amendment. -- The contention is
also advanced that the Eighth Amendment to the Constitution,
note 9 supra, compels
the allowance of bail in a reasonable amount. We have, in the
preceding sections of this opinion, set out why this refusal of
bail is not an abuse of power, arbitrary or capricious, and why the
delegation of discretion to the Attorney General is not
unconstitutional. Here, we meet the argument that the Constitution
requires by the Eighth Amendment,
note 9 supra, the same reasonable bail for alien
Communists under deportation charges as it accords citizens charged
with bailable
Page 342 U. S. 545
criminal offenses. Obviously the cases cited by the applicants
for habeas corpus fail flatly to support this argument. [
Footnote 41] We have found none that
do.
The bail clause was lifted, with slight changes, from the
English Bill of Rights Act. [
Footnote 42] In England, that clause has never been
thought to accord a right to bail in all cases, [
Footnote 43] but merely to provide that
bail shall not be excessive in those cases where it is proper to
grant bail. When this clause was carried over into our Bill of
Rights, nothing was said that indicated any different concept.
[
Footnote 44] The Eighth
Amendment has not prevented Congress from defining the classes of
cases in which bail shall be allowed in this country. Thus, in
criminal cases, bail is not compulsory where the punishment may be
death. [
Footnote 45]
Indeed,
Page 342 U. S. 546
the very language of the Amendment fails to say all arrests must
be bailable. We think, clearly, here that the Eighth Amendment does
not require that bail be allowed under the circumstances of these
cases.
It should be noted that the problem of habeas corpus after
unusual delay in deportation hearings is not involved in this case.
Cf. United States ex rel. Potash v. District Director, 169
F.2d 747, 751.
IV.
Rearrest. -- Finally, respondent Zydok argues that
his rearrest on the outstanding warrant, after he had once been
released on bail, was improper. The inquiry on habeas corpus is
limited to the propriety of Zydok's present detention.
McNally
v. Hill, 293 U. S. 131,
293 U. S. 136.
While the Attorney General has made a satisfactory showing that he
has good cause for detaining Zydok without bail, no order based on
a new warrant has been entered. [
Footnote 46] Zydok did not allow the proceedings to run
along, but objected promptly by habeas corpus to detention under
the warrant. It has been said that the rule in criminal cases is
that a warrant, once executed, is exhausted. [
Footnote 47] This guards against precipitate
rearrest. Where, however, the rearrest comes after the discovery of
error in release, a new warrant is not necessarily required.
[
Footnote 48] State cases
have held that an escaped person, or one who secured his
Page 342 U. S. 547
release by trick, may be rearrested without a new warrant.
[
Footnote 49] Although a
warrant for rearrest is required by statute, when a convicted
person is paroled, his status on violation of the parole is the
same as that of an escaped prisoner. [
Footnote 50] When a prisoner is out on bond, he is still
under court control, though the bounds of his confinement are
enlarged. His bondsmen are his jailers. [
Footnote 51] While the bailsmen may arrest without
warrant, the court proceeds under bench warrant to retake a
prisoner.
Cf. 18 U.S.C. § 3143.
Although, in a civil proceeding for deportation, the same branch
of government issues and executes the warrant, we think the better
practice is to require in those cases also a new warrant.
The judgment of the Court of Appeals in the
Zydok case
will be vacated, and the cause remanded to the District Court for
further proceedings in accordance with this opinion, with
directions to order the release of the respondent Zydok unless,
within a reasonable time, in the discretion of the court, he is
rearrested under a new warrant. [
Footnote 52]
No. 35 is affirmed; No. 136 is vacated.
* Together with No. 136,
Butterfield, Director of
Immigration and Naturalization Service v. Zydok, on certiorari
to the United States Court of Appeals for the Sixth Circuit.
[
Footnote 1]
Reorganization Plan No. V, 54 Stat. 1238.
[
Footnote 2]
Sec.19 of an Act to regulate the immigration of aliens to, and
the residence of aliens in, the United States, 39 Stat. 889,
February 5, 1917, as amended, 8 U.S.C. § 155:
". . . any alien who shall have entered or who shall be found in
the United States in violation of this chapter, 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. . .
."
[
Footnote 3]
Act of October 16, 1918, 40 Stat. 1012, as amended, 8 U.S.C.1946
ed.,
see 342
U.S. 524fn15|>note 15
infra:
"(c) Aliens who believe in, advise, advocate, or teach, or who
are members of or affiliated with any organization, association,
society, or group that believes in, advises, advocates, or teaches:
(1) the overthrow by force or violence of the Government of the
United States or of all forms of law. . . ."
[
Footnote 4]
Internal Security Act of 1950, September 23, 1950, § 22,
subsection 4(a), amending the Act of October 16, 1918,
see
8 U.S.C. § 137:
"Any alien who was, at the time of entering the United States,
or has been at any time thereafter, a member of any one of the
classes of aliens enumerated in section 1(1) or section 1(3) of
this Act or . . . a member of any one of the classes of aliens
enumerated in section 1(2) of this Act shall, upon the warrant of
the Attorney General, be taken into custody and deported in the
manner provided in the Immigration Act of February 5, 1917. The
provisions of this section shall be applicable to the classes of
aliens mentioned in this Act, irrespective of the time of their
entry into the United States."
Id., § 22:
"That any alien who is a member of any one of the following
classes shall be excluded from admission into the United States:
"
"(1) Aliens who seek to enter the United States whether solely,
principally, or incidentally, to engage in activities which would
be prejudicial to the public interest, or would endanger the
welfare or safety of the United States;"
"(2) Aliens who at any time, shall be or shall have been members
of any of the following classes:"
"(A) Aliens who are anarchists;"
"(B) Aliens who advocate or teach, or who are members of or
affiliated with any organization that advocates or teaches,
opposition to all organized government;"
"(C) Aliens who are members of or affiliated with (i) the
Communist Party of the United States, (ii) any other totalitarian
party of the United States, (iii) the Communist Political
Association, (iv) the Communist or other totalitarian party of any
the United States, of any foreign state, or of any political or
geographical subdivision of any foreign state; (v) any section,
subsidiary, branch, affiliate, or subdivision of any such
association or party; or (vi) the direct predecessors or successors
of any such association or party, regardless of what name such
group or organization may have used, may now bear, or may hereafter
adopt;"
"
* * * *"
"(F) Aliens who advocate or teach or who are members of or
affiliated with any organization that advocates or teaches (i) the
overthrow by force or violence or other unconstitutional means of
the Government of the United States or of all forms of law. . .
."
"
* * * *"
"(3) Aliens with respect to whom there is reason to believe that
such aliens would, after entry, be likely to (A) engage in
activities which would be prohibited by the laws of the United
States relating to espionage, sabotage, public disorder, or in
other activity subversive to the national security; (B) engage in
any activity a purpose of which is the opposition to, or the
control or overthrow of, the Government of the United States by
force, violence, or other unconstitutional means; or (C) organize,
join, affiliate with, or participate in the activities of any
organization which is registered or required to be registered under
section 7 of the Subversive Activities Control Act of 1950."
[
Footnote 5]
Internal Security Act of 1950, § 23:
". . . Pending final determination of the deportability of any
alien taken into custody under warrant of the Attorney General,
such alien may, in the discretion of the Attorney General. (1) be
continued in custody; or (2) be released under bond in the amount
of not less than $500, with security approved by the Attorney
General; or (3) be released on conditional parole. . . ."
[
Footnote 6]
See § 22(1), Internal Security Act,
note 4 supra.
[
Footnote 7]
See note 5
supra.
[
Footnote 8]
Before the passage of the Internal Security Act, the four
petitioners had been arrested and admitted to bail on warrants
charging membership in groups advocating the overthrow of the
Government by force and violence. In our view of the issues now
here, these former happenings are immaterial to our consideration
of this writ of certiorari.
[
Footnote 9]
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."
[
Footnote 10]
"That section 20 of the Immigration Act of February 5, 1917, as
amended by section 23 of Public Law 831, 81st Congress (commonly
known as Subversive Activities Control Act of 1950) and section 1
of the Act of October 16, 1918 (8 U.S.C. 137), as amended, are, and
each of them is, unconstitutional and void in that they deprive
persons, including petitioner, of liberty and property without due
process of law, in violation of the Fifth Amendment to the
Constitution of the United States in that they abridge the freedom
of persons, including petitioner, of speech, the press, and
assembly, and the right to petition the government for redress of
grievances, in violation of the First Amendment to the Constitution
of the United States, and in that they purport to authorize
indefinite detention of persons, including petitioner, without bond
prior to final determination of deportability."
[
Footnote 11]
Carlson v. Landon, 186 F.2d 183, 186;
Stevenson v.
Landon, 186 F.2d 190.
[
Footnote 12]
Id. at 189.
[
Footnote 13]
28 U.S.C. § 2248:
"The allegations of a return to the writ of habeas corpus or of
an answer to an order to show cause in a habeas corpus proceeding,
if not traversed, shall be accepted as true except to the extent
that the judge finds from the evidence that they are not true."
[
Footnote 14]
Carlson v. Landon, 187 F.2d 991.
[
Footnote 15]
Quite properly, we think, no question is raised as to the
applicability of the Internal Security Act amendments relating to
membership in the Communist Party and allowance of bail, notes
4 and |
4 and S. 524fn5|>5,
supra, to detention
under a warrant based on 8 U.S.C.1946 ed., § 137(c), note 3,
supra. Cf. Internal Security Act, 64 Stat. 987,
Title I, § 2.
[
Footnote 16]
"That the petitioner, while under cross-examination by the Chief
Assistant United States Attorney, was a consistently evasive
witness and his evasive demeanor in testifying in relation to his
communistic activities convinces this Court that he is knowingly
and willfully participating in the Communist movement."
[
Footnote 17]
187 F.2d at 803:
"Appellant was seventeen years of age when he arrived in this
country from Poland in 1913. Since then, he has lived continuously
in the State of Michigan. He has been a waiter in an
English-speaking restaurant in Hamtramck, Mich., for seventeen
years, and, for a great part of that time, he was head waiter. He
owns his own home in Detroit, and has a family consisting of his
wife, two sons, a daughter, and five grandchildren. Both sons
served in the armed services of the United States in World War II.
His children and grandchildren were born in this country, and his
daughter married here. During World War II, while appellant was
head waiter in the restaurant, he sold about $50,000.00 worth of
U.S. War Bonds, and, during that period, he donated blood on seven
occasions to the Red Cross for the United States Army."
"Before his second arrest and while he was at large on bail, he
reported regularly to the Department of Immigration and
Naturalization Service. The record fails to disclose that he has
violated any law or that he is engaged, or is likely to engage, in
any subversive activities."
[
Footnote 18]
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 659;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 707;
Bugajewitz v. Adams, 228 U. S. 585;
Ng Fung Ho v. White, 259 U. S. 276,
259 U. S. 280;
United States v. Curtiss-Wright Export Corp., 299 U.
S. 304,
299 U. S. 318;
Eichenlaub v. Shaughnessy, 338 U.
S. 521,
338 U. S. 528;
III Hackworth's Digest of International Law 725 (1942).
[
Footnote 19]
For example,
compare Act of December 17, 1943, 57 Stat.
600,
with Act of May 6, 1882, 22 Stat. 58.
[
Footnote 20]
See note 4
supra. The extension of the proscription of residence to
aliens believing in the overthrow of Government by force or
violence has been progressive, as can be readily observed by
following the successive enactments of laws to regulate the
residence of aliens since the Act of February 5, 1917, 39 Stat.
874.
See 8 U.S.C. §§ 137 and 155.
[
Footnote 21]
"(15) The Communist movement in the United States is an
organization numbering thousands of adherents, rigidly and
ruthlessly disciplined. Awaiting and seeking to advance a moment
when the United States may be so far extended by foreign
engagements, so far divided in counsel, or so far in industrial or
financial straits that overthrow of the Government of the United
States by force and violence may seem possible of achievement, it
seeks converts far and wide by an extensive system of schooling and
indoctrination. Such preparations by Communist organizations in
other countries have aided in supplanting existing governments. The
Communist organization in the United States, pursuing its stated
objectives, the recent successes of Communist methods in other
countries, and the nature and control of the world Communist
movement itself present a clear and present danger to the security
of the United States and to the existence of free American
institutions, and make it necessary that Congress, in order to
provide for the common defense, to preserve the sovereignty of the
United States as an independent nation, and to guarantee to each
State a republican form of government, enact appropriate
legislation recognizing the existence of such world-wide conspiracy
and designed to prevent it from accomplishing its purpose in the
United States."
[
Footnote 22]
I Trotsky, History of the Russian Revolution, 106, 120, 141,
144, 151; Lenin, Collected Works (1930), Vol. XVIII, pp. 279-280;
Lenin, The State and Revolution, August, 1917, Foreign Languages
Publishing House, Moscow (1949), 28, 30, 33. Translations furnished
indicate the same attitude on the part of Stalin. Collected Works,
Vol. I, pp. 131-137, 185-205, 241-246; Vol. III, pp. 367-370.
And see Leites, The Operational Code of the Politburo
(1950), c. xiii, "Violence."
See also Immigration and
Naturalization Systems of the United States, S.Rep.No.1515, 81st
Cong., 2d Sess., Senate Committee on the Judiciary, Part 3,
Subversives, c. I, B, Alien Control; c. II, C, Deportation of
Subversive Aliens.
[
Footnote 23]
Turner v. Williams, 194 U. S. 279;
Schneiderman v. United States, 320 U.
S. 118, MR. JUSTICE DOUGLAS concurring at
320 U. S.
165.
[
Footnote 24]
Bugajewitz v. Adams, 228 U. S. 585,
228 U. S. 591;
Ng Fung Ho v. White, 259 U. S. 276,
259 U. S.
280.
[
Footnote 25]
Mabler v. Eby, 264 U. S. 32,
264 U. S.
39:
"[Congress] was, in the exercise of its unquestioned right, only
seeking to rid the country of persons who had shown by their career
that their continued presence here would not make for the safety or
welfare of society."
See also Eichenlaub v. Shaughnessy, 338 U.
S. 521,
338 U. S. 530.
Compare Harisiades v. Shaughnessy, 342 U.
S. 580.
[
Footnote 26]
United States v. Curtiss-Wright Export Corp.,
299 U. S. 304,
299 U. S.
318.
[
Footnote 27]
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S.
713-715,
149 U. S. 728;
Nishimura Ekiu v. United States, 142 U.
S. 651,
142 U. S. 659;
The Japanese Immigrant Case, 189 U. S.
86,
189 U. S. 97;
Zakonaite v. Wolf, 226 U. S. 272;
Wong Wing v. United States, 163 U.
S. 228,
163 U. S.
231.
A claim of citizenship has protection.
Ng Fung Ho v.
White, 259 U. S. 276.
[
Footnote 28]
Turner v. Williams, 194 U. S. 279,
194 U. S.
290-291;
Zakonaite v. Wolf, 226 U.
S. 272,
226 U. S. 275;
Bugajewitz v. Adams, 228 U. S. 585,
228 U. S. 591;
Mabler v. Eby, 264 U. S. 32.
[
Footnote 29]
Fong Haw Tan v. Phelan, 333 U. S.
6,
333 U. S. 10;
Jordan v. De George, 341 U. S. 223,
341 U. S.
231.
[
Footnote 30]
The Japanese Immigrant Case, 189 U. S.
86;
Vajtauer v. Commissioner, 273 U.
S. 103.
[
Footnote 31]
The former provision read as follows:
". . . Pending the final disposal of the case of any alien so
taken into custody, he may be released under a bond in the penalty
of not less than $500 with security approved by the Attorney
General, conditioned that such alien shall be produced when
required for a hearing or hearings in regard to the charge upon
which he has been taken into custody, and for deportation if he
shall be found to be unlawfully within the United States."
8 U.S.C.1946 ed., § 156.
On December 7, 1951 at the request of this Court, the Government
furnished us a list of the Bail or Detention Status, as of the
period just prior to December 7, of deportation cases, involving
subversive charges, pending on the date of the enactment of the
Internal Security Act, September 23, 1950. The list indicates that
the modest bonds or personal recognizances of the far larger part
of the aliens remained unchanged after the bond amendment to the
Immigration Act. Of those detained without bond on order of the
Service, the courts have released all but a few. It is quite clear
from the list that detention without bond has been the
exception.
[
Footnote 32]
H.R.Rep.No.1192, 81st Cong., 1st Sess., p. 6; S.Rep.No.2239,
81st Cong., 2d Sess., p. 5.
[
Footnote 33]
169 F.2d at 751:
"The discretion of the Attorney General which we held to exist
in the
Zapp case is interpreted as one which is to be
reasonably exercised upon a consideration of such factors, among
others, as the probability of the alien's being found deportable,
the seriousness of the charge against him, if proved, the danger to
the public safety of his presence within the community, and the
alien's availability for subsequent proceedings if enlarged on
bail. However, in any consideration of his denial of bail, it
should always be borne in mind that the court's opinion as to
whether the alien should be admitted to bail can only override that
of the Attorney General where the alien makes a clear and
convincing showing that the decision against him was without a
reasonable foundation."
See U.S. ex rel. Doyle v. District Director, 169 F.2d
753;
U.S. ex rel. Pirinsky v. Shaughnessy, 177 F.2d 708;
U.S. ex rel. De Geronimi v. Shaughnessy, 187 F.2d 896.
(This is the only case from the Second Circuit Court of Appeals
since the Internal Security Act. It leaves open the question of the
reviewability of the Attorney General's action under that Act.)
[
Footnote 34]
The proposed bills at one time contained a provision:
"(f) No alien detained under any provision of law relating to
the exclusion or expulsion of aliens shall, prior to an
unreviewable order discharging him from custody, be released by any
court, on bond or otherwise, except pursuant to the order of a
Federal court composed of three judges."
S.Rep.No.2239, 81st Cong., 2d Sess., p. 3. This was introduced
to allow for possible release from custody pending deportation
hearings.
Id. at p. 9. The clause did not survive.
[
Footnote 35]
Even though we also take into consideration the factor of
probable availability for trial, which we do not think is of great
significance in cases involving security from communist activities
of alien communists, the past record of these aliens is far from
decisive against the Attorney General's action. The Internal
Security Act made membership sufficient for deportation and set up
a procedure that could be carried out. § 22(2)(C),
note 4 supra, and § 23. Deportation
became more likely for alien communists by these amendments.
[
Footnote 36]
Buttfield v. Stranahan, 192 U.
S. 470;
Union Bridge Co. v. United States,
204 U. S. 364,
204 U. S. 386;
United States v. Grimaud, 220 U.
S. 506;
Panama Refining Co. v. Ryan,
293 U. S. 388,
293 U. S.
421:
"The Constitution has never been regarded as denying to the
Congress the necessary resources of flexibility and practicality
which will enable it to perform its function in laying down
policies and establishing standards, while leaving to selected
instrumentalities the making of subordinate rules within prescribed
limits and the determination of facts to which the policy as
declared by the Legislature is to apply."
[
Footnote 37]
Wayman v.
Southard, 10 Wheat. 1,
23 U. S. 43-48;
St. Louis, I.M. & S. R. Co. v. Taylor, 210 U.
S. 281,
210 U. S. 286;
Intermountain Rate Cases, 234 U.
S. 476,
234 U. S.
486-489;
Fahey v. Mallonee, 332 U.
S. 245,
332 U. S. 249.
See Yakus v. United States, 321 U.
S. 414,
321 U. S.
424-425:
"The essentials of the legislative function are the
determination of the legislative policy and its formulation and
promulgation as a defined and binding rule of conduct. . . . These
essentials are preserved when Congress has specified the basic
conditions of fact upon whose existence or occurrence, ascertained
from relevant data by a designated administrative agency, it
directs that its statutory command shall be effective. It is not
objection that the determination of facts and the inferences to be
drawn from them in the light of the statutory standards and
declaration of policy call for the exercise of judgment, and for
the formulation of subsidiary administrative policy within the
prescribed statutory framework."
[
Footnote 38]
Any alien becoming a public charge within five years of entry
may be subject to deportation. Likewise any alien sentenced more
than once for any crime involving moral turpitude, and certain
illegal entrants.
See 8 U.S.C. § 155.
[
Footnote 39]
Approximately 85,000,000 people, citizens and aliens, are said
to have crossed our borders in the 1949 fiscal year. Some many
times. Five million aliens are reported to have registered under
the Alien Registration Act of 1940, 54 Stat. 670. S.Rep.No.1515,
pp. 630-631,
supra, n 22.
[
Footnote 40]
See, for example, § 2(15), quoted above at
note 21
[
Footnote 41]
Attention is called to
United States ex rel. Potash v.
District Director, 169 F.2d 747, 752:
"If the Eighth Amendment to the Constitution is considered to
have any bearing upon the right to bail in deportation proceedings,
and this has been denied, it is our opinion that the provisions of
that Amendment and any requirement of the due process provisions of
the Fifth Amendment will be fully satisfied if the standards of
fairness and reasonableness we have set forth regarding the
exercise of discretion by the Attorney General are observed."
United States ex rel. Klig v.
Shaughnessy, 94 F. Supp.
157, 160:
"It is not unappropriate to refer here to the Eighth Amendment
to the Constitution of the United States, one of that series of
amendments collectively known as the Bill of Rights, which
prohibits the imposition of excessive bail. Certainly the principle
inherent in that amendment applies to deportation proceedings,
whether or not such proceedings technically fall within its scope.
That principle cannot be reconciled with the government's denial of
bail to these relators under the circumstances here set forth."
[
Footnote 42]
1 Wm. & Mary Sess. 2, c. II, § I(10).
[
Footnote 43]
Petersdorff, on Bail, 483
et seq.
[
Footnote 44]
I Annals of Congress 753.
[
Footnote 45]
1 Stat. 91, § 33; Federal Rules of Criminal Procedure,
46(a).
Similarly, on appeal from a conviction by the trial court, a
defendant is not entitled to bail if he does not present a
substantial question. Fed.Rules Crim.Proc., 46(a)(2);
Bridges
v. United States, 184 F.2d 881, 884;
Williamson v. United
States, 184 F.2d 280, 281;
Baker v. United States,
139 F.2d 721.
In England, there was a series of crimes and situations where
the arrested person could "have no other sureties but the four
walls of the prison." Blackstone's Commentaries, Book IV, 298.
[
Footnote 46]
See United States ex rel. Bilokumsky v. Tod,
263 U. S. 149,
263 U. S. 158, and
cases there cited;
Mabler v. Eby, 264 U. S.
32,
264 U. S. 45.
These cases had valid orders entered subsequent to an invalid
arrest.
[
Footnote 47]
See United States ex rel. Hikkinen v. Gordon, 190 F.2d
168 19;
Doyle v. Russell, 30 Barb., N.Y. 300.
[
Footnote 48]
People ex rel. Wolfe v. Johnson, 230 N.Y. 256, 130 N.E.
286.
[
Footnote 49]
Voll v. Steele, 141 Ohio St. 293, 47 N.E.2d 991.
Cf. Porter v. Garmony, 148 Ga. 261, 96 S.E. 426. Bail once
allowed by a magistrate, pending trial, may not in some instances
be refused by a higher court.
In re Marshall, 38 Ariz.
424, 300 P. 1011.
[
Footnote 50]
Anderson v. Corall, 263 U. S. 193,
263 U. S.
196.
[
Footnote 51]
Taylor v.
Taintor, 16 Wall. 366,
83 U. S.
371.
[
Footnote 52]
See Dowd v. Cook, 340 U. S. 206;
Mabler v. Eby, 264 U. S. 32,
264 U. S.
45.
MR. JUSTICE BLACK, dissenting.
Today, the Court holds that law-abiding persons, neither charged
with nor convicted of any crime, can be held in jail indefinitely,
without bail, if a subordinate Washington bureau agent believes
they are members of the Communist
Page 342 U. S. 548
Party, and therefore dangerous to the Nation because of the
possibility of their "indoctrination of others." Underlying this
harsh holding are past decisions of this Court declaring that
Congress may constitutionally direct the summary deportation of
aliens for any reason it sees fit. I agree with MR. JUSTICE
DOUGLAS, for the reasons he gives in his dissenting opinion in
Harisiades v. Shaughnessy, 342 U.
S. 580,
342 U. S. 598,
that these prior declarations should now be reconsidered and
rejected. This would dispose of these cases. But the Court today
not only adheres to, but greatly expands, the constitutional
doctrine of the former cases. The Court also relies on the Internal
Security Act of 1950, 64 Stat. 987, for its holding. MR. JUSTICE
FRANKFURTER presents strong arguments for construing the Act so as
to reach an opposite result. But, even if authorized by that Act,
as the majority holds, the denial of a right to bail under the
circumstances of these cases strikes me as a shocking disregard of
the following provisions of the Bill of Rights: Eighth Amendment's
ban against excessive bail; [
Footnote
2/1] First Amendment's ban against abridgment of thought,
speech and press; [
Footnote 2/2]
Fifth Amendment's ban against depriving a person of liberty without
due process of law. [
Footnote 2/3]
Before a detailed discussion of my several grounds of dissent, it
is necessary to state the facts and the precise issues the records
present.
Respondent Zydok, petitioners Carlson and others were all
arrested ("detained") in connection with proceedings which might
lead to their deportation. A subordinate of the Commissioner of
Immigration, not the
Page 342 U. S. 549
Attorney General, directed that they be held in prison without
bail. Of necessity, consideration of these deportation proceedings
by bureaus and courts may last for years. Carlson's has already
dragged on for over four years. Moreover, even deportation orders
at the end of such proceedings might not end their indeterminate
jail sentences, since the foreign countries to which they are
ordered might refuse to admit them. Such refusals have prevented
deportation in thousands of cases. [
Footnote 2/4] Thus, denial of bail may well be the
equivalent of a life sentence, at least for Zydok, 56 years old,
and Carlisle, whose health is bad. Such has become the fate of
ordinary family people selected and classified, on secret
information, as "dangerous" by Washington bureau agents.
Zydok's case illustrates what is happening. He has lived in this
country 39 years, owns his home, has violated no law, is "not
likely to engage in any subversive activities," has a wife, two
sons, a daughter and five grandchildren, all born in the United
States. Both sons served in the armed services in World War II.
Zydok himself, then a waiter, sold about $50,000 worth of U.S. war
bonds and "donated blood on seven occasions to the Red Cross for
the United States Army." This jailing of Zydok, despite a patriotic
record of which many citizens could well be proud, is typical of
what actually happens when public feelings run high against an
unpopular minority.
While the Court gives Zydok a momentary technical respite, its
holding means that he too, pursuant to the government's present
program, can and will be held in jail without bond as a "dangerous"
character. The others, with equally enviable records as law-abiding
persons, are not even given a technical respite. Mrs. Stevenson is
the wife of a citizen and is the mother of a young man who
Page 342 U. S. 550
is also a citizen. Her son has long been subject to attacks of
undulant fever. He and his 70-year-old grandmother need Mrs.
Stevenson's help, as does her husband, who does her housework while
she is "detained" as "dangerous" to our national security. The
District Judge tried to persuade the representatives of the
Immigration Bureau and the Attorney General to agree for him to
enter an order fixing bail for her and for Mr. Carlisle. His
request was refused.
The record does not leave us in doubt as to why bail was denied
Mrs. Stevenson, Mr. Carisle, or any of these allegedly "dangerous"
aliens. Denial was not on the ground that, if released they might
try to evade obedience to possible deportation orders. The District
Judge in No. 35 conceded that "there is nothing here to indicate
the Government is fearful that they are going to leave the
jurisdiction;" he said, "I am not going to release men and women
that the Attorney General's office says are security risks;" he
also said,
"I am not going to turn these people loose if they are
Communists, any more than I would turn loose a deadly germ in this
community. If that is my duty let the Circuit Court say so, and
assume that burden. [
Footnote
2/5]"
These remarks to counsel show that he kept these people in jail
only because he thought Communists, as such, were too dangerous to
the Nation to be allowed to associate with other people. The Court
of Appeals' denial of bail was also based on the premise that
Communists were too dangerous to the Nation to be left out of jail,
not on the premise that deportation would be delayed or frustrated
by granting bail. 187 F.2d 991.
Page 342 U. S. 551
And the Solicitor General has admitted here that "the only
evidence advanced to support their detention without bail was that
they had been active in the Communist movement." The majority here
also appears to rest on the same basis. It must, unless it is now
drawing inferences that some might flee and be unavailable for
deportation. As the Government admits, there is not a vestige of
support for such an inference. [
Footnote 2/6] Besides, an alien
"who shall willfully fail or refuse to present himself for
deportation . . . shall upon conviction be guilty of a felony, and
shall be imprisoned not more than ten years. . . ."
64 Stat. 987, 1012.
Thus, it clearly appears that these aliens are held in jail
without bail for no reason except that "they had been active in the
Communist movement." From this it is concluded that their
association with others would so imperil the Nation's safety that
they must be isolated from their families and communities. On this
premise, they would be just as dangerous whether aliens or
citizens, deportable or not. Since it is not necessary to keep them
in jail to assure their compliance with a deportation order, their
imprisonment cannot possibly be intended as an aid to deportation.
They are kept in jail solely because a bureau agent thinks that is
where Communists should be. A power to put in jail because
dangerous cannot be derived from a power to deport. Consequently,
prior cases holding that Congress has power to deport aliens
provide no support at all for today's holding that Congress
Page 342 U. S. 552
has power to authorize bureau agents to put "dangerous" people
in jail without privilege of bail.
The stark fact is that, if Congress can authorize imprisonment
of "alien Communists" because dangerous, it can authorize
imprisonment of citizen "Communists" on the same ground. And while
this particular bureau campaign to fill the jails is said to be
aimed at "dangerous" alien Communists only, peaceful citizens may
be ensnared in the process. For the bureau agent is not required to
prove that a person he throws in jail is an alien, or a Communist,
or "dangerous." The agent need only declare he has reason to
believe that such is the case. The agent may be, and here
apparently was, acting on the rankest hearsay evidence. The secret
sources of his "information" may have been spies and informers, a
class not usually rated as the most reliable by people who have had
experience with them. [
Footnote
2/7] In this record, the nearest approach to any identifiable
source of information is that some of the jailed persons had
admitted past membership in organizations listed by the Attorney
General as "Communist," or "Communist
Page 342 U. S. 553
front." These listings are made by the Attorney General
ex
parte on secret dossiers containing statements from sources
that the Attorney General refuses to reveal. A majority of this
Court has held that such listings are illegal.
Joint
Anti-Fascist Committee v. McGrath, 341 U.
S. 123. This alone should be enough to reverse the
judgments in No. 35. My own judgment is that Congress has not
authorized the Bureau of Immigration to hold people in jail without
bond solely because it believes them "dangerous." Nor do I think
that Congress has power to grant any such authority, even if it had
attempted to do so.
First. Section 23 of the Internal Security Act, 64
Stat. 987, 1011, provides that,
"Pending final determination of the deportability of any alien
taken into custody under warrant of the Attorney General, such
alien may, in the discretion of the Attorney General (1) be
continued in custody; or (2) be released under bond in the amount
of not less than $500, with security approved by the Attorney
General; or (3) be released on conditional parole."
I read this language as attempting to authorize the Attorney
General to hold aliens without bail within his discretion. I think
that means the Attorney General's discretion, not that of a
subordinate in the Bureau of Immigration. This record does not show
that these people were jailed by virtue of an exercise of
discretion by the Attorney General. Decision to put deportable
aliens in jail without bond (with very minor exceptions) was made
by subordinates in the Bureau of Immigration. I agree with MR.
JUSTICE FRANKFURTER that this decision to jail aliens
en
masse was not based on the kind of "discretion" the Act
intended. But I further think § 23 should not be construed as
permitting the Attorney General to delegate this tremendous power
to others.
The Government finds a power to so delegate in provisions of the
Alien Registration Act of 1940, 8 U.S.C.
Page 342 U. S. 554
§ 458(a), and in the President's Reorganization Plan No. 2 of
1950, 5 U.S.C. (Supp. IV) following § 133z-15. These provisions are
in such broad general terms that they could be read as allowing the
Attorney General to delegate all his discretionary duties. But the
gravity of a discretionary power to seize people and keep them in
jail without a right of bail warns against implying such an
unlimited power to delegate it. It is bad enough to read an Act as
vesting even the Nation's chief prosecutor with power to determine
what individuals he prosecutes should be held in jail without bail.
Delegating and redelegating this dangerous power to subordinates
entrusted with duties like those of deputy sheriffs and policemen
raises serious procedural due process questions. I am not willing
to imply that Congress has granted power to make such delegations
which so ominously threaten the liberty of individuals.
Consequently, assuming constitutionality of § 23, I would hold that
it vests power in the Attorney General alone to decide whether a
person should be denied bail.
Second. The fifth Amendment commands that no person
shall be deprived of liberty without due process of law. I think
this provision has been violated here.
Surely it is not consistent with procedural due process of law
for prosecuting attorneys or their law enforcement subordinates to
make final determinations as to whether persons they accuse of
something shall remain in jail indefinitely awaiting a decision as
to the truthfulness of the accusations against them. In effect,
that was done here. I have already referred to the trial judge's
statement in No. 35 that he was not going to release people the
Attorney General deemed to be bad security risks. Moreover, the
immigration official's mere belief based on statements coming from
unidentified persons was accepted by both trial judges as casting
on each alleged "alien Communist" the burden of proving he was not
a Communist by
Page 342 U. S. 555
clear and convincing evidence. And their refusal to incriminate
themselves by denying the immigration officer's suspicions was
accepted as sufficient proof to keep them behind the jail doors. I
think that condemning people to jail is a job for the judiciary in
accordance with procedural "due process of law." [
Footnote 2/8] To farm out this responsibility to
the police and prosecuting attorneys is a judicial abdication in
which I will have no part.
Third. As previously pointed out, the basis of holding
these people in jail is a fear that they may indoctrinate people
with Communist beliefs. To put people in jail for fear of their
talk seems to me to be an abridgment of speech in flat violation of
the First Amendment. I have to admit, however, that this is a
logical application of recent cases watering down constitutional
liberty of speech. [
Footnote 2/9] I
also realize that many believe that Communists and "fellow
travelers" should not be accorded any of the First Amendment's
protections. My belief is that we must have freedom of speech,
press, and religion for all, or we may eventually have it for none.
I further believe that the First Amendment grants an absolute right
to believe in any governmental system, discuss all governmental
affairs, and argue for desired changes in the existing order. This
freedom is too dangerous for bad, tyrannical governments to permit.
But those who wrote and adopted our First Amendment weighed those
dangers against the dangers of censorship, and deliberately chose
the First Amendment's unequivocal command that freedom of assembly,
petition, speech, and press shall not be abridged. I happen to
believe this was a wise choice, and that our free way of life
enlists such respect and love that
Page 342 U. S. 556
our Nation cannot be imperiled by mere talk. This belief of mine
may, and I suppose does, influence me to protest whenever I think I
see even slight encroachments on First Amendment liberties. But the
encroachment here is not small. True, it is mainly those alleged to
be present or past "Communists" who are now being jailed for their
beliefs and expressions. But we cannot be sure more victims will
not be offered up later if the First Amendment means no more than
its enemies, or even some of its friends, believe it does.
Fourth. I think § 23, as construed and as here applied,
violates the command of the Eighth Amendment that "Excessive bail
shall not be required. . . ." Under one of the Government's
contentions, which the Court apparently adopts, the Eighth
Amendment's ban on excessive bail means just about nothing. That
contention is that Congress has power, despite the Amendment, to
determine "whether or not bail may be granted, or must be granted,
and the Constitution then forbids the exaction of excessive bail. .
. ." Under this contention, the Eighth Amendment is a limitation
upon judges only, for, while a judge cannot constitutionally fix
excessive bail, Congress can direct that people be held in jail
without any right to bail at all. Stated still another way, the
Amendment does no more than protect a right to bail which Congress
can grant, and which Congress can take away. The Amendment is thus
reduced below the level of a pious admonition. Maybe the literal
language of the framers lends itself to this weird, devitalizing
interpretation when scrutinized with a hostile eye. But, at least
until recently, it has been the judicial practice to give a broad,
liberal interpretation to those provisions of the Bill of Rights
obviously designed to protect the individual from governmental
oppression. I would follow that practice here. The Court refuses to
do so because (1) the English Bill of Rights "has never been
thought to accord a right to bail in
Page 342 U. S. 557
all cases . . . ," and (2) "in criminal cases, bail is not
compulsory where the punishment may be death." As to (1): the
Eighth Amendment is in the American Bill of Rights of 1789, not the
English Bill of Rights of 1689. And it is well known that our Bill
of Rights was written and adopted to guarantee Americans greater
freedom than had been enjoyed by their ancestors who had been
driven from Europe by persecution.
See Bridges v.
California, 314 U. S. 252,
314 U. S.
264-265. As to (2): it is true, bail has frequently been
denied in this country "when the punishment may be death." I fail
to see where the Court's analogy between deportation and the death
penalty advances its argument, unless it is also analogizing the
offense of indoctrinating talk to the crime of first degree
murder.
Another governmental contention is this:
"The bail provisions of the Eighth Amendment and of the statutes
relating thereto have always been considered as applicable only to
criminal proceedings. Since deportation proceedings are not
criminal in character, the Eighth Amendment has no
application."
I reject the contention that this constitutional right to bail
can be denied a man in jail by the simple device of providing a
"not criminal" label for the techniques used to incarcerate.
Imprisonment awaiting determination of whether that imprisonment is
justifiable has precisely the same evil consequences to an
individual whatever legalistic label is used to describe his
plight. Prior to this Amendment's adoption, history had been filled
with instances where individuals had been imprisoned and held for
want of bail on charges that could not be substantiated. Official
malice had too frequently been the cause of imprisonment. The plain
purpose of our bail Amendment was to make it impossible for any
agency of Government, even the Congress, to authorize keeping
people imprisoned a moment longer than was necessary to assure
their attendance to answer whatever
Page 342 U. S. 558
legal burden or obligation might thereafter be validly imposed
upon them. In earlier days of this country, there were fond hopes
that the bail provision was unnecessary, that no branch of our
Government would ever want to deprive any person of bail. On this
subject, Mr. Justice Story said,
"The provision would seem to be wholly unnecessary in a free
government, since it is scarcely possible that any department of
such a government would authorize or justify such atrocious
conduct."
Story on Constitutional Law, 5th Ed., Vol. 2, p. 650. Perhaps
the word "atrocious" is too strong. I can only say that I regret,
deeply regret, that the Court now adds the right to bail to the
list of other Bill of Rights guarantees that have recently been
weakened to expand governmental powers at the expense of individual
freedom.
I am for reversing in No. 35 and affirming in No. 136.
[
Footnote 2/1]
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."
U.S.Const., Amend. VIII.
[
Footnote 2/2]
"Congress shall make no law . . . abridging the freedom of
speech, or of the press. . . ." U.S.Const., Amend. I.
[
Footnote 2/3]
"No person . . . shall be . . . deprived of life, liberty, or
property, without due process of law. . . ." U.S.Const., Amend.
V.
[
Footnote 2/4]
96 Cong.Rec.10449; H.R.Rep.No.1192, 81st Cong., 1st Sess., pp.
7, 9, 10.
[
Footnote 2/5]
And the District Judge in No. 35 said
"When there is a claim, and I don't know whether it is true or
not . . . , that these people are security risks, and that their
release is dangerous to the security of the United States, until
that is either disproved or proved, I am not going to release them.
My first vote in that respect is for the security of the country.
We have had 42,000 casualties already."
[
Footnote 2/6]
In this state of the record, and particularly in view of the
Solicitor General's contrary admission, I am at a loss to
understand
note 35 in the
Court's opinion It is there intimated that these aliens might
flee and be unavailable for deportation. I cannot believe that the
Court is resting, or would rest, its approval of denial of bail on
a ground which even the Solicitor General had not deemed
supportable by the record.
[
Footnote 2/7]
"Anonymous informations ought not to be received in any sort of
prosecution. It is introducing a very dangerous precedent, and is
quite foreign to the spirit of our age."
Written near 100 A.D. by Emperor Trajan to Pliny the Younger in
response to Pliny's interesting report of his prosecution of
Christians. 9 Harvard Classics, 428. Pliny was "in great doubt"
even then as to
"whether the very profession of Christianity, unattended with
any criminal act, or only the crimes themselves inherent in the
profession are punishable. . . ."
Supra, 426.
"If they [informers against Christians] succeeded in their
prosecution, they were exposed to the resentment of a considerable
and active party, to the censure of the more liberal portion of
mankind, and to the ignominy which in every age and country, has
attended the character of an informer. If, on the contrary, they
failed in their proofs, they incurred the severe, and perhaps
capital, penalty which, according to a law published by the emperor
Hadrian, was inflicted on those who falsely attributed to their
fellow citizens the crime of Christianity."
2 Gibbon, The History of the Decline and Fall of the Roman
Empire (Oxford Univ.Press), 107, 108.
[
Footnote 2/8]
See Mozorosky v. Hurlburt, 106 Or. 274, 198 P. 556, 211
P. 893, and note pages 1079-1083.
[
Footnote 2/9]
See, e.g., American Communications Assn. v. Douds,
339 U. S. 382;
Dennis v. United States, 341 U. S. 494;
Feiner v. New York, 340 U. S. 315.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON joins,
dissenting.
If the Attorney General, after the Internal Security Act, had
made a general ruling that, thereafter, he would not allow bail to
any alien against whom deportation proceedings were started and who
was then a member of the Communist Party -- an undiscriminating,
unindividualized class determination -- it would disregard the
clear direction of Congress for this Court not to hold that the
Attorney General had exceeded the limits of his discretion. It
would willfully disregard the adjudications on bail in deportation
cases which preceded the Act and the unambiguous legislative
history of the law based upon this judicial history. Congress
unequivocally chose not to give nonreviewable discretionary power
to the Attorney General to deny bail. In substance, though not
formally, he has made such a general ruling. The records before us
disclose that, since the Internal Security Act, the Attorney
Page 342 U. S. 559
General has in fact, followed the general practice of denying
bail to all active Communists. Such blanket exercise of the power
granted him by the Act calls for review, and cannot stand.
The controlling questions in this case are: what standards of
discretion does the Internal Security Act of 1950 [
Footnote 3/1] impose upon the Attorney General in
granting or denying bail to persons arrested for deportation
proceedings, and has the Attorney General here observed those
standards? The Government concedes that Congress made reviewable
the discretion of the Attorney General on the bail question. This
subjection of the Attorney General's action to judicial scrutiny is
not to be formally or lightly exercised. The bill which ultimately
became § 23 of the Internal Security Act was initially passed by
the House with a provision making absolute and unreviewable the
Attorney General's action. [
Footnote
3/2] The bill as enacted, however, omitted the finality clause;
the Attorney General's authority was thus defined:
"Pending final determination of the deportability of any alien .
. . [he] may,
in the discretion of the Attorney General,
(1) be continued in custody; or (2) be released under bond in the
amount of not less than $500, with security approved by the
Attorney General; or
Page 342 U. S. 560
(3) be released on conditional parole. [
Footnote 3/3]"
Before the passage of the Act, Congress had before it
conflicting views of Courts of Appeals: according to
Prentis v.
Manoogian, 16 F.2d 422, bail was a matter of the alien's
right; the Second Circuit ruled that it was a matter within the
Attorney General's discretion subject to judicial review.
United States ex rel. Potash v. District Director, 169
F.2d 747. [
Footnote 3/4] Congress
chose the latter view. It deserves emphasis that it was discretion
that was given the Attorney General, not power to decide
arbitrarily. [
Footnote 3/5]
Page 342 U. S. 562
In granting the Attorney General discretion subject to judicial
review, Congress legislated against a historical background which
gives meaning to bail provisions. Only the other day, this Court
restated the concept of bail traditional in American thought and
reflected in the Constitution:
"This traditional right to freedom before conviction [or before
order for deportation] permits the unhampered preparation of a
defense, and serves to prevent the infliction of punishment prior
to conviction. . . . Since the function of bail is limited, the
fixing of bail for any individual defendant must be based upon
standards relevant to the purpose of assuring the presence of that
defendant. . . . To infer from the fact of indictment [or warrant
for deportation] alone a need for bail in an unusually high amount
is an arbitrary act."
Stack v. Boyle, 342 U. S. 1,
342 U. S. 4-6.
"The practice of admission to bail, as it has evolved in
Anglo-American law, is not a device for keeping persons in jail
upon mere accusation until it is found convenient to give them a
trial. On the contrary, the spirit of the procedure is to enable
them to stay out of jail until a trial has found them guilty. . . .
Each defendant stands before the bar of justice as an individual. .
. . Each accused is entitled to any benefits due to his good
record, and misdeeds or a bad record should prejudice only those
who are guilty of them."
342 U.S. at
342 U. S. 7-9
(concurring opinion).
Page 342 U. S. 562
This historical meaning of "bail," familiar even to laymen, must
infuse our interpretation of the words of a Congress of whom, in
fact, a majority were lawyers. When Congress provided for bail,
within the Attorney General's discretion, for persons arrested for
deportation proceedings, it was extending to resident aliens still
lawfully in our midst the same privileges that are granted as a
matter of course to dangerous criminals. The factors relevant to
the exercise of discretion are factors that pertain to each
individual as an individual.
"Discretion is only to be respected when it is conscious of the
traditions which surround it and of the limits which an informed
conscience sets to its exercise. [
Footnote 3/6]"
If these aliens, instead of awaiting deportation proceedings,
were held for trial under a Smith Act indictment, they could not be
denied bail merely because of the indictment.
Stack v. Boyle,
supra. Membership in the Communist Party -- the charge which
is the foundation for the deportation proceedings -- is surely not
as great a danger as a leading share in a conspiracy to advocate
the overthrow of the Government by force, which was the essence of
the indictment in
Dennis v. United States, 341 U.
S. 494. And the opportunity for "the unhampered
preparation of a defense" is quite as important to the alien
arrested for deportation proceedings as it is to the Smith Act
defendant. We would hesitate to impute to Congress, in the absence
of some more explicit command, an intent to make bail more readily
available to those held on a serious criminal charge than to those
awaiting proceedings to determine the question of deportability.
Congress made no such distinction. Instead, it cast the Attorney
General's authority in terms descriptive of the
Page 342 U. S. 563
customary power of commissioners or district judges in admitting
to bail.
The factors stated by the Second Circuit in the
Potash
case,
supra at 751, which guided the enactment, are
presumably the standards which Congress expected to be
observed:
"The discretion of the Attorney General . . . is to be
reasonably exercised upon a consideration of such factors, among
others, as the probability of the alien's being found deportable,
the seriousness of the charge against him, if proved, the danger to
the public safety of his presence within the community, and the
alien's availability for subsequent proceedings if enlarged on
bail."
Congress thus made provision for a fair assurance of each
alien's availability in the event he is eventually ordered
deported. There is, however, not the slightest indication in the
Government's returns or in the records before us that each
petitioner's ties to family and community and each one's behavior
under an earlier warrant against him do not assure his presence
throughout the deportation proceedings and thereafter. The records
affirmatively indicate the contrary. Moreover, in deportation cases
-- as compared, for example, with prosecutions under the Smith Act
-- the consideration that the individuals concerned may depart from
the country is minimized in significance first, because compulsory
departure from the United States is just what they are contesting,
and secondly, if they do depart, the purpose of the deportation
proceedings is realized.
It would be unfair to Congress to deny that it followed the
traditional concept of bail by making "the danger to the public
safety of his presence within the community" a criterion for
bailability. No less must it be presumed that Congress required
that each criterion should be applied in the traditional manner --
that is, by individualized application to each alien. In each case,
the alien's anticipated personal conduct -- and that alone --
Page 342 U. S. 564
must be considered. Also, how expeditiously each deportation
proceeding can be concluded, and therefore how long the bail in
each case need be in effect, are relevant considerations.
But it is argued that, since an introductory section of the
Internal Security Act makes a "legislative finding" of the threat
represented by the Party, [
Footnote
3/7] Congress intended membership in the Communist Party alone
to serve as a reasonable basis for believing individual aliens too
dangerous to leave at large. Such an interpretation renders
meaningless the discretion granted the Attorney General wherever
the deportation charge is membership in the Communist Party. The
argument means that he may exercise discretion as to bail only to
deny bail. Congress did not write such a Hobson's choice into law.
True, the bail provisions apply to deportation proceedings brought
on other grounds. However, the absorbing concern of Congress in the
Internal Security Act was with the problem of the Communist Party;
that Act, for the first time, explicitly made membership in the
Communist Party a ground for deportation. [
Footnote 3/8] It puts Congress in a stultifying position
to suggest that it gave with one hand only to take away with the
other.
In these cases, the Attorney General has not exercised his
discretion by applying the standards required of him. He evidently
thought himself under compulsion of law and made an abstract, class
determination, not an individualized judgment. When the five aliens
were arrested originally (one as late as June, 1950), all were
released on bail, ranging from $5,000 for one to $1,000 for
another; three were released on $2,000 bail. Much is made of the
fact that the enactment of the Internal Security Act on
Page 342 U. S. 565
September 22, 1950, intervened between the original grant of
bail and the subsequent rearrest and detention of the aliens. The
only change in that Act relevant to these deportation proceedings
was the provision making membership in the Communist Party
specifically a basis for deportation. [
Footnote 3/9] New warrants charging membership in the
Communist Party at some time after entry were served on the
rearrested aliens in Los Angeles, though not on Zydok in Detroit.
The immigration authorities were, by the Act, relieved of proving
-- in order to make a
prima facie case -- that the
Communist Party is an "organization . . . that believes in,
advises, advocates, or teaches . . . the overthrow by force or
violence of the Government." [
Footnote 3/10] But, in the circumstances of today, a
legislative definition of the Communist Party as an organization
advocating violent overthrow of government made little difference
in the required proof. [
Footnote
3/11] At any rate, a complete answer is that nowhere -- either
in his returns to the writs of habeas corpus or elsewhere -- has
the Attorney General made any assertion that the Internal Security
Act eased the proof of deportability, indicating by his silence
that such a factor did not influence his judgment. [
Footnote 3/12] The returns in the Los
Angeles cases supported the denial of bail solely by the
statement,
"said facts cause the said Acting Commissioner
Page 342 U. S. 566
to believe that, if the said petitioner[s] were enlarged on
bail, [they] would engage in activities which would be prejudicial
to the public interest, and would endanger the welfare and safety
of the United States."
The return in Zydok's case stated no reasons for the Attorney
General's decision. The only evidence at the hearings was also
directed solely to the Communist activities of the aliens.
The insubstantiality of the evidence for showing any danger in
freeing each individual alien on bail raises ample doubt whether
the Attorney General exercised a discretion as instructed by
statute. In Zydok's case, the claim is that he had been a member of
the Communist Party and financial secretary of a Hamtramck,
Michigan, section in 1949, a year before his rearrest and denial of
bail on October 23, 1950. From Zydok's failure to deny present
membership during his testimony, the District Court drew the
conclusion that he was "knowingly and willfully participating in
the Communist movement." This was clearly a violation of Zydok's
privilege against self-incrimination, which he many times claimed.
[
Footnote 3/13] But assuming that
the Attorney General had evidence before him that Zydok was at
present a member of the Communist Party, that alone is insufficient
to show danger in freeing him on bail during the deportation
proceeding. To deny bail, the Attorney General should have a
reasonable basis for believing that the circumstances attending
Zydok present too hazardous a risk in leaving him at large.
Page 342 U. S. 567
There is also no evidence on the activities of the other four
aliens that is more recent than 1949 -- a year before the issuance
of the relevant warrants for deportation and the denials of bail
here under review -- with the exception of a newspaper article by
Carlson published in late 1950. In fact, in the case of Carlisle
and Stevenson, the Government had no evidence of activity or
membership in the Communist Party more recent than the 1930's.
Since all these aliens, when previously arrested, were released on
bail, we cannot escape the conclusion that the Attorney General,
after the enactment of the Internal Security Act, did not deny bail
from an individualized estimate of "the danger to the public safety
of [each person's] presence within the community." [
Footnote 3/14]
Page 342 U. S. 568
We are confirmed in this conclusion by the Attorney General's
practice. For we are advised by the Solicitor General that it has
been the Government's policy since the Internal Security Act to
terminate bail for all aliens awaiting deportation proceedings whom
it deems to be present active Communists, barring only those for
whom special circumstances of physical condition or family
situation compel an exception. The ordinary considerations of
availability to respond to the final judgment of the courts have
apparently been ruled out by the Attorney General since the
enactment of the Internal Security Act. All those whom the
Government believes to be active Communists are considered
unbailable without individualized consideration of risk from their
continued freedom. It must therefore be inferred that the Attorney
General acted on the assumption that, because he was convinced that
the aliens here were present Communist Party members, they were not
bailable. These persons should have the benefit of an exercise of
discretion by the Attorney General, freed from any conception that
Congress had made them in effect unbailable. We think that the
California case should be returned to the District Court for
discharge of the four persons detained unless the Attorney General
within a reasonable time makes a new determination on the bail
question using the standards here outlined. And if Zydok is
rearrested under a new warrant, the Attorney General will have a
fresh opportunity to exercise his discretion in setting bail.
[
Footnote 3/1]
Pub.L.No.831, 81st Cong., 2d Sess., 64 Stat. 987.
[
Footnote 3/2]
H.R. 10, 81st Cong., 1st Sess. read in relevant part thus:
"(g) No court shall have jurisdiction to release on bond or
otherwise any alien detained under any provision of law relating to
the exclusion or expulsion of aliens at any time prior to a
decision of court in his favor which is not subject to further
judicial reviews."
See 96 Cong.Rec. 10448-10460. H.R.Rep. No. 1192, 81st
Cong., 1st Sess. 10-11 had this comment:
"The provision is designed to leave the question of releasing an
alien from custody in an immigration case entirely in the hands of
the Attorney General. . . . It is no way denies the right of any
alien to test the legality of his detention through the courts; it
merely states that the alien cannot be released by the court until
judicial proceedings have been finally terminated in the alien's
favor."
[
Footnote 3/3]
Internal Security Act of 1950, § 23, 64 Stat. 987, 1010, 8
U.S.C. (Supp. IV) § 156(a) (emphasis added).
[
Footnote 3/4]
H.R.Rep.No.1192, 81st Cong., 1st Sess. 5-6, commenting on H.R.
10, which made the Attorney General's discretion unreviewable, yet
gave "discretion" to the Attorney General, said:
"This [existing law] has often been found to be lacking in
clarity and doubtful in purpose when questions have arisen
concerning procedure following arrest of an alien, or during the
interim between his arrest and his hearing and decision on his
case. . . . The committee believes that this bill will greatly
simplify such details."
A memorandum from a lawyers' group which was read into the
record urged that to make the decision of the Attorney General
unreviewable "flouts the recent decision of the circuit court of
appeals of the second circuit," citing
United States ex rel.
Potash v. District Director, 169 F.2d 747. 96 Cong.Rec.
10454.
[
Footnote 3/5]
Compare the language "in the discretion of the Attorney General"
with the clause "Where the Controller has reasonable grounds to
believe," which the Privy Council had before it in
Nakkuda Ali
v. Jayaratne, [1951] A.C. 66. It was held, in the judgment of
Lord Radcliffe, "that there must in fact, exist such reasonable
grounds, known to the Controller, before he can validly exercise
the power" conferred. And for this reason:
"After all, words such as these are commonly found when a
legislature or lawmaking authority confers powers on a minister or
official. However read, they must be intended to serve in some
sense as a condition limiting the exercise of an otherwise
arbitrary power. But if the question whether the condition has been
satisfied is to be conclusively decided by the man who wields the
power, the value of the intended restraint is, in effect, nothing.
No doubt he must not exercise the power in bad faith; but the field
in which this kind of question arises is such that the reservation
for the case of bad faith is hardly more than a formality."
Id. at 77.
[
Footnote 3/6]
Professor Mark De Wolfe Howe in The Nation, Jan. 12, 1952, p.
30.
[
Footnote 3/7]
Internal Security Act of 1950, § 2, 64 Stat. 987.
[
Footnote 3/8]
Internal Security Act of 1950, § 22, 64 Stat. 987, 1006, 8
U.S.C. (Supp. IV) §§ 137, 137-3.
[
Footnote 3/9]
Ibid.
[
Footnote 3/10]
40 Stat. 1012, 8 U.S.C. § 137(c).
[
Footnote 3/11]
See Dennis v. United States, 341 U.
S. 494,
341 U. S.
510-511, and the concurring opinion of MR. JUSTICE
JACKSON in
American Communications Assn. v. Douds,
339 U. S. 382,
339 U. S.
422.
[
Footnote 3/12]
A radiogram to the District Director of Immigration and
Naturalization in Los Angeles from the Acting Commissioner in
Washington compendiously justified holding the four Los Angeles
aliens without bail thus:
". . . the instruction . . . was issued only after the cases had
been examined in the light of the Internal Security Act . . . and
the spirit and intention thereof and all of the factors concerning
the likelihood of the deportability and the activities of said
alien had been given careful consideration, as well as the factors
of undue hardship which continued detention might impose."
The radiograms, in October, 1950, to the District Director in
Detroit ordering Zydok's rearrest and detention without bail gave
no reasons for the action.
[
Footnote 3/13]
See 20 Stat. 30, 18 U.S.C. § 3481;
Wilson v. United
States, 149 U. S. 60,
149 U. S. 66.
See also Blau v. United States, 340 U.
S. 159.
[
Footnote 3/14]
In a case just decided, the Court of Appeals for the Second
Circuit found a not unreasonable exercise of discretion by the
Attorney General in circumstances that are here wanting. An extract
from the opinion of Judge A. N. Hand illumines the differences:
"In his petition for the writ, Young alleged facts indicating
that, if released, he would be available for any further
proceedings at which his presence would be required. The return to
the writ, however, contained allegations which, if accepted,
established a reasonable foundation for the denial of bail by the
Attorney General. Thus, the return, in addition to containing
allegations of membership in the Communist party, alleged that
Young had once before escaped from custody during earlier
proceedings; that he had previously attempted to enter the United
States by furnishing a false identity and with a fraudulent
passport, and that, during his present detention, he refused to
answer questions relating to prior identification, places of
residence, employment and home life. Section 2248 of the Judicial
Code, 28 U.S.C. § 2248, requires that the facts alleged in the
return be taken as true unless impeached, and Young, in his
traverse to the return, did not refute those statements, nor did
he, in his motion for reargument, make any offer to prove the
contrary, nor did he assert new facts, which under 28 U.S.C. § 2246
could have been accomplished by affidavit. As the Supreme Court has
recently said in
Stack v. Boyle, 342 U. S. 1,
342 U. S. 4:"
"The right to release before trial is conditioned upon the
accused's giving adequate assurance that he will stand trial and
submit to sentence if found guilty."
United States ex rel. Young v. Shaughnessy, 194 F.2d
474.
MR. JUSTICE DOUGLAS, dissenting.
My reasons for dissent strike deeper than the bail provisions of
the Eighth Amendment. According to the warrants of arrest issued on
October 31, 1950, the petitioners in No. 35 are being detained for
deportation because they were formerly members of the Communist
Party of the United States. Zydok, the respondent in
Page 342 U. S. 569
No. 136, was arrested for present Communist Party membership,
but no charge has been made that he has been guilty of any
seditious conduct or that he has committed any overt act
endangering our national security. If the Constitution does not
permit expulsion of these aliens for their past actions or present
expressions unaccompanied by conduct -- and I do not think it does*
-- then they are illegally detained and should be set free, making
the issue of bail meaningless.
*
See my dissents in
Dennis v. United States,
341 U. S. 494,
341 U. S.
584-589;
Harisiades v. Shaughnessy,
342 U. S. 580,
342 U. S.
598.
MR. JUSTICE BURTON, dissenting.
I join the dissenting opinion of MR. JUSTICE FRANKFURTER, and
add the suggestion that the Eighth Amendment lends support to the
statutory interpretation he advocates. That Amendment clearly
prohibits federal bail that is excessive in amount when seen in the
light of all traditionally relevant circumstances. Likewise, it
must prohibit unreasonable denial of bail. The Amendment cannot
well mean that, on the one hand, it prohibits the requirement of
bail so excessive in amount as to be unattainable, yet, on the
other hand, under like circumstances, it does not prohibit the
denial of bail, which comes to the same thing. The same
circumstances are relevant to both procedures. It is difficult to
believe that Congress now has attempted to give the Attorney
General authority to disregard those considerations in the denial
of bail.