1. Under § 3 of the Act of August 24, 1937, 50 Stat. 752, 28
U.S.C. § 380a, a direct appeal to this Court was taken from a
judgment of a district court of three judges denying an injunction
in a case involving the constitutionality of a federal statute. The
case was not docketed in this Court until after 60 days from the
time the appeal was allowed. The steps prescribed by Rule 11 of
this Court for obtaining a dismissal were not taken by the
appellees.
Held: This Court has jurisdiction of the appeal. Pp.
330 U. S.
84-86.
(a) The provision of 28 U.S.C. § 380a requiring an appeal
thereunder to be docketed in this Court within 60 days from the
time the appeal is allowed was not intended to vary Rule 11 of this
Court, and does not constitute a limitation on the power of this
Court to hear this appeal. Pp.
330 U. S.
85-86.
(b) Rule 47 of this Court requires the same practice for appeals
under 28 U.S.C. § 380a that Rule 11 does for other appeals. P.
330 U. S.
86.
2. Certain employees of the executive branch of the Federal
Government sued for an injunction against the members of the Civil
Service Commission to prohibit them from enforcing against such
employees § 9(a) of the Hatch Act, 18 U.S.C. Supp. V § 61h, which
forbids such employees from taking "any active part in political
management or in political campaigns," and also for a declaratory
judgment of the unconstitutionality of this section. They did not
allege that they had violated the Act or that they actually were
threatened with any disciplinary action, but only that they desire
to engage in acts of political management and in political
campaigns (specifying the nature of the actions which they wish to
take) and are prevented from doing so by fear of dismissal from
federal employment.
Held: Their suit does not present a justiciable case or
controversy. Pp.
330 U. S.
86-91.
3. Another employee of the executive branch of the Federal
Government brought a similar suit, alleging that he actually had
committed
Page 330 U. S. 76
specific violations of the Act, and that the Commission had
charged him with violations and had issued a proposed order for his
removal, subject to his right to reply to the charges and to
present further evidence in refutation.
Held: His suit presents a justiciable case or
controversy. Pp.
330 U. S.
91-94.
(a) Since the employee admits that he violated the Act and that
removal from office is therefore mandatory under the Act, there is
no question as to exhaustion of administrative remedies. P.
330 U. S.
93.
(b) There being no administrative or statutory review for the
Commission's order and no prior proceeding pending in the courts,
there is no reason why a declaratory judgment action does not lie,
even though constitutional issues are involved. P.
330 U. S.
93.
4. A person employed as a roller in a United States mint acted
outside of working hours as a ward executive committeeman of a
political party and was politically active on election day as a
worker at the polls and as a paymaster for the services of other
workers. The Civil Service Commission found that he had taken an
"active part in political management or in political campaigns" in
violation of § 9 of the Hatch Act, 18 U.S.C.Supp. V § 61h, and Rule
1 of the Commission, and issued an order for his removal from
federal employment.
Held: Such a breach of the Hatch Act and Rule 1 of the
Commission can be made the basis for disciplinary action without
violating the Constitution. Pp.
330 U.S. 94-104.
(a) Congress has the power to regulate, within reasonable
limits, the political conduct of federal employees, in order to
promote efficiency and integrity in the public service.
Ex
parte Curtis, 106 U. S. 371;
United States v. Wurzbach, 280 U.
S. 396. Pp.
330 U. S.
96-103.
(b) The fundamental human rights guaranteed by the First, Fifth,
Ninth and Tenth Amendments are not absolute, and this Court must
balance the extent of the guarantee of freedom against a
congressional enactment to protect a democratic society against the
supposed evil of political partisanship by employees of the
Government. Pp.
330 U. S.
95-96.
(c) The Hatch Act permits full participation by federal
employees in political decisions at the ballot box, and forbids
only the partisan activity deemed offensive to efficiency. P.
330 U. S.
99.
(d) It does not restrict public and private expressions on
public affairs, personalities, and matters of public interest, not
an objective of party action, so long as the government employee
does not direct his activities toward party success. P.
330 U. S.
100.
(e) If political activity by government employees is harmful
Page 330 U. S. 77
to the service, the employees, or people dealing with them, it
is hardly less so because it takes place after hours. P.
330 U. S.
95.
(f) The prohibition of § 9(a) of the Hatch Act applies without
discrimination to all employees of the executive branch of the
Government, whether industrial or administrative. P.
330 U. S.
102.
(g) Whatever differences there may be between administrative
employees of the Government and industrial workers in its employ
are differences in detail for the consideration of Congress, so far
as the constitutional power here involved is concerned. P.
330 U. S.
102.
(h) The determination of the extent to which political
activities of government employees shall be regulated lies
primarily with Congress, and the courts will interfere only when
such regulation passes beyond the generally existing conception of
governmental power. P.
330 U. S.
102.
5. Acting as ward executive committeeman of a political party
and as a worker at the polls is within the prohibitions of § 9 of
the Hatch Act and the Civil Service Rules. P.
330 U. S.
103.
56 F.
Supp. 621, affirmed.
Certain employees of the executive branch of the Federal
Government and a union of such employees sued to enjoin the members
of the Civil Service Commission from enforcing the provision of §
9(a) of the Hatch Act, 18 U.S.C. Supp. V § 61h, which forbids such
employees to take "any active part in political management or in
political campaigns," and for a declaratory judgment holding the
Act unconstitutional. The District Court dismissed the suit.
56 F. Supp.
621. A direct appeal to this Court was taken under § 3 of the
Act of August 24, 1937, 50 Stat. 752, 28 U.S.C. § 380a.
Affirmed, p.
330 U. S.
104.
Page 330 U. S. 78
MR. JUSTICE REED delivered the opinion of the Court.
The Hatch Act,
* enacted in 1940,
declares unlawful certain specified political activities of federal
employees. [
Footnote 1] Section
9 forbids officers and employees in the executive branch of the
Federal Government, with exceptions, from taking "any active part
in political management or in political campaigns." [
Footnote 2] Section 15 declares that the
activities
Page 330 U. S. 79
theretofore determined by the United States Civil Service
Commission to be prohibited to employees in the classified civil
service of the United States by the Civil Service Rules shall be
deemed to be prohibited to federal employees covered by the Hatch
Act. [
Footnote 3] These
sections of the Act cover all federal officers and employees,
whether in the classified civil service or not, and a penalty of
dismissal from employment is imposed for violation. There is no
designation of a single governmental agency for its
enforcement.
For many years before the Hatch Act, the Congress had authorized
the exclusion of federal employees in the competitive classified
service from active participation in political management and
political campaigns. [
Footnote
4] In June, 1938,
Page 330 U. S. 80
the congressional authorization for exclusion had been made more
effective by a Civil Service Commission disciplinary rule.
[
Footnote 5] That power to
discipline members of the competitive classified civil service
continues in the Commission under the Hatch Act by virtue of the
present applicability of the Executive Order No. 8705, March 5,
1941. The applicable Civil Service Commission rules are
Page 330 U. S. 81
printed in the margin. [
Footnote
6] The only change in the Civil Service Rules relating to
political activity, caused by the Hatch Act legislation, that is of
significance in this case is the elimination, on March 5, 1941, of
the word "privately" from the phrase "to express privately their
opinions." This limitation to private expression had regulated
classified personnel since 1907. [
Footnote 7]
The present appellants sought an injunction before a statutory
three-judge district court of the District of Columbia
Page 330 U. S. 82
against appellees, members of the United States Civil Service
Commission, to prohibit them from enforcing against appellants the
provisions of the second sentence of § 9(a) of the Hatch Act for
the reason that the sentence is repugnant to the Constitution of
the United States. [
Footnote 8]
A declaratory judgment of the unconstitutionality of the sentence
was also sought. [
Footnote 9]
The sentence referred to reads,
"No officer or employee in the executive branch of the Federal
Government . . . shall take any active part in political management
or in political campaigns."
Various individual employees of the federal executive civil
service and the United Public Workers of America, [
Footnote 10] a labor union with these and
other executive employees as members, as a representative of all
its members, joined in the suit. It is alleged that the individuals
desire to engage in acts of political management and in political
campaigns. Their purposes are as stated in the excerpt from the
complaint set out in the margin. [
Footnote 11] From the
Page 330 U. S. 83
affidavits it is plain, and we so assume, that these activities
will be carried on completely outside of the hours of employment.
Appellants challenge the second sentence of § 9(a) as
unconstitutional for various reasons. They are set out below in the
language of the complaint. [
Footnote 12]
None of the appellants, except George P. Poole, has violated the
provisions of the Hatch Act. They wish to act contrary to its
provisions and those of 1 of the Civil Service Rules, and desire a
declaration of the legally permissible
Page 330 U. S. 84
limits of regulation. Defendants moved to dismiss the complaint
for lack of a justiciable case or controversy. The District Court
determined that each of these individual appellants had an interest
in their claimed privilege of engaging in political activities
sufficient to give them a right to maintain this suit.
United
Federal Workers of America (CIO) v. Mitchell, 56 F.
Supp. 621, 624. The District Court further determined that the
questioned provision of the Hatch Act was valid, and that the
complaint therefore failed to state a cause of action. It
accordingly dismissed the complaint and granted summary judgment to
defendants.
First. The judgment of the District Court was entered
on September 26, 1944. An order was duly entered on October 26,
1944, allowing an appeal. 28 U.S.C. § 380a. The same section of the
statutes provides:
"In the event that an appeal is taken under this section, the
record shall be made up and the case docketed in the Supreme Court
of the United States within sixty days from the time such appeal is
allowed, under such rules as may be prescribed by the proper
courts."
This appeal was not docketed in this Court until February 2,
1945, a date after the return date of the order under § 380a.
Thereafter, the Government suggested a lack of jurisdiction in this
Court to consider the appeal because of the failure of appellants
to docket the appeal in time. We postponed consideration of our
jurisdiction over this appeal to the hearing. We proceed now to a
disposition of this question.
To comply with the suggestion of § 380a, this Court adopted Rule
47. [
Footnote 13] In other
cases of appeals, Rule 11
Page 330 U. S. 85
governs docketing. [
Footnote
14] If Rule 11 applies also to appeals under 380a, we may hear
this appeal, for the steps for dismissal required by Rule 11 were
not taken by the appellees. This is because, upon the allowance of
an appeal by a judge of the district court, as here, Supreme Court
Rules 10 and 36, the case is transferred from the district court to
this Court and subsequent steps for dismissal or affirmance are to
be taken here. [
Footnote 15]
If, however, the above-quoted provision of § 380a as to docketing
is a prerequisite to the power of this Court to review, this appeal
must fail.
Prior to the passage of § 380a, appeals docketed after the
return day were governed by Rule 11, 275 U.S. 602. In principle it
has long been in existence. [
Footnote 16] By the words of the rule, it appears that
dismissal for appellant's tardiness in docketing requires a step by
the appellee. Even after dismissal for failure to docket, the rule
permits this Court to allow the appellant to docket. Nothing
Page 330 U. S. 86
in the legislative history which has been called to our
attention indicates that Congress intended its docketing provision
to vary Rule 11. Direct appeal accomplishes the congressional
purpose of expediting review, of course, and is consistent with an
unchanged practice as to dismissals. The time to docket may have
been enlarged from the conventional return day of Rules 10 and 11
to bring continental uniformity,
see Rule 10, or to give
time for the preparation of a record which would often be large,
and not transcribed or printed. It will not expedite determination
of constitutional questions to dismiss appeals because of errors of
practice. In fact, the sentence of § 380a on docketing seems
deliberately to leave the practice on failure to docket to rules of
court. We do not construe the requirement of docketing within sixty
days as a limitation on our power to hear this appeal.
So far as our Rule 47 is concerned, we construe it as requiring
in accordance with § 380a the docketing in sixty days from the
allowance of the appeal, instead of the forty days of our Rule 10,
and that, as to dismissals, the first sentence of Rule 47 requires
the same practice for appeals under § 380a that Rule 11 does for
other appeals. We think it desirable to have sufficient flexibility
in the rule to permit extensions of the time for return in the
unusual situations that occur when large records are involved. In
view of the recognized congressional purpose to quicken review
under § 380a, the discretion to delay final hearing allowed under
Rule 11 will be exercised only on a definite showing of need
therefor to assure fair review. This leads us to hear this appeal.
[
Footnote 17]
As is well known, the federal courts established pursuant to
Article III of the Constitution do not render advisory opinions.
[
Footnote 19] For
adjudication of constitutional issues, "concrete legal issues,
presented in actual cases, not abstractions," are requisite.
[
Footnote 20] This is as
true of declaratory judgments as any other field. [
Footnote 21] These appellants seem clearly
to seek advisory opinions upon broad claims of rights protected by
the First, Fifth, Ninth and Tenth Amendments to the Constitution.
As these appellants are classified employees, they have a right
superior to the generality of citizens,
compare Fairchild v.
Hughes, 258 U. S. 126, but
the facts of their personal interest in their civil rights, of the
general threat of possible interference with those rights by the
Civil Service Commission under its rules, if specified things are
done by appellants, does not make a justiciable case or
controversy. Appellants want to engage in "political management and
political campaigns," to persuade others to follow appellants'
views by discussion, speeches, articles and other acts reasonably
designed to secure the selection of appellants' political choices.
Such generality of objection is really an attack on the political
expediency of the Hatch Act, not the presentation of legal issues.
It is beyond the competence of courts to render such a decision.
Texas v. Interstate Commerce Commission, 258 U.
S. 158,
258 U. S.
162.
The power of courts, and ultimately of this Court, to pass upon
the constitutionality of acts of Congress arises
Page 330 U. S. 90
only when the interests of litigants require the use of this
judicial authority for their protection against actual
interference. A hypothetical threat is not enough. We can only
speculate as to the kinds of political activity the appellants
desire to engage in, or as to the contents of their proposed public
statements or the circumstances of their publication. It would not
accord with judicial responsibility to adjudge, in a matter
involving constitutionality, between the freedom of the individual
and the requirements of public order except when definite rights
appear upon the one side and definite prejudicial interferences
upon the other. [
Footnote
22]
The Constitution allots the nation's judicial power to the
federal courts. Unless these courts respect the limits of that
unique authority, they intrude upon powers vested in the
legislative or executive branches. Judicial adherence to the
doctrine of the separation of powers preserves the courts for the
decision of issues, between litigants, capable of effective
determination. Judicial exposition upon political proposals is
permissible only when necessary to decide definite issues between
litigants. When the courts act continually within these
constitutionally imposed boundaries of their power, their ability
to perform their function as a balance for the people's protection
against abuse of power by other branches of government remains
unimpaired. Should the courts seek to expand their power so as to
bring under their jurisdiction ill-defined controversies over
constitutional issues, they would
Page 330 U. S. 91
become the organ of political theories. Such abuse of judicial
power would properly meet rebuke and restriction from other
branches. By these mutual checks and balances by and between the
branches of government, democracy undertakes to preserve the
liberties of the people from excessive concentrations of authority.
No threat of interference by the Commission with rights of these
appellants appears beyond that implied by the existence of the law
and the regulations.
Watson v. Buck, supra, p.
313 U. S. 400.
We should not take judicial cognizance of the situation presented
on the part of the appellants considered in this subdivision of the
opinion. These reasons lead us to conclude that the determination
of the trial court, that the individual appellants, other than
Poole, could maintain this action, was erroneous.
Third. The appellant Poole does present by the
complaint and affidavit matters appropriate for judicial
determination. [
Footnote 23]
The affidavits filed by appellees confirm that
Page 330 U. S. 92
Poole has been charged by the Commission with political activity
and a proposed order for his removal from his position adopted
subject to his right under Commission procedure to reply to the
charges and to present further evidence in refutation. [
Footnote 24] We proceed to consider
the controversy over constitutional power at issue between Poole
and the Commission as defined by the charge and preliminary
finding, upon one side, and the admissions of Poole's affidavit,
upon the other. Our determination is limited to those facts. This
proceeding, so limited, meets the requirements of defined rights
and a definite threat to interfere with a possessor of the menaced
rights by a penalty for an act done in violation of the claimed
restraint. [
Footnote 25]
Page 330 U. S. 93
Because we conclude hereinafter that the prohibition of § 9 of
the Hatch Act and Civil Service Rule 1,
see notes
2 and |
2 and S. 75fn6|>6 above, are valid, it is unnecessary
to consider, as this is a declaratory judgment action, whether or
not this appellant sufficiently alleges that an irreparable injury
to him would result from his removal from his position. [
Footnote 26] Nor need we inquire
whether or not a court of equity would enforce by injunction any
judgment declaring rights. [
Footnote 27] Since Poole admits that he violated the rule
against political activity and that removal from office is
therefore mandatory under the act, there is no question as to the
exhaustion of administrative remedies. The act provides no
administrative or statutory review for the order of the Civil
Service Commission.
Compare Stark v. Wickard, 321 U.
S. 288,
321 U. S.
306-310;
Macauley v. Waterman S.S. Corporation,
327 U. S. 540. As
no prior proceeding, offering an effective remedy or otherwise, is
pending in the courts, there is no problem of judicial discretion
as to whether to take cognizance of this case.
Brillhart v.
Excess Insurance Co., 316 U. S. 491,
316 U. S.
496-497, dissent at
316 U. S. 500;
Larson v. General Motors Corporation, 134 F.2d 450, 453.
Under such circumstances, we see no reason why a declaratory
judgment action, even though constitutional issues are involved,
does not lie.
See Rules of Civil Procedure, Rule 57.
Steele v. Louisville & Nashville Railroad Co.,
323 U. S. 192,
323 U. S. 197,
323 U. S. 207;
Tunstall v. Brotherhood
of �
2 and S.
94�
Locomotive Firemen & Enginemen, 323 U.
S. 210,
323 U. S. 212,
et seq.2 and S.
75ast2|>**
Fourth. This brings us to consider the narrow but
important point involved in Poole's situation. [
Footnote 28] Poole's stated offense is
taking an "active part in political management or in political
campaigns." He was a ward executive committeeman of a political
party, and was politically active on election day as a worker at
the polls and a paymaster for the services of other party workers.
The issue for decision, and the only one we decide, is whether such
a breach of the Hatch Act and Rule 1 of the Commission can, without
violating the Constitution, be made the basis for disciplinary
action.
When the issue is thus narrowed, the interference with free
expression is seen in better proportion as compared with the
requirements of orderly management of administrative personnel.
Only while the employee is politically active, in the sense of Rule
1, must he withhold expression of opinion on public subjects.
See note 6 We assume
that Mr. Poole would be expected to comment publicly as
committeeman on political matters, so that, indirectly, there is an
attenuated interference. We accept appellants' contention that the
nature of political rights reserved to the people by the Ninth and
Tenth Amendments are involved. The right claimed as inviolate may
be stated as the right of a citizen to act as a party official or
worker to further his own political views. Thus, we
Page 330 U. S. 95
have a measure of interference by the Hatch Act and the Rules
with what otherwise would be the freedom of the civil servant under
the First, Ninth and Tenth Amendments. And, if we look upon due
process as a guarantee of freedom in those fields, there is a
corresponding impairment of that right under the Fifth Amendment.
Appellants' objections under the Amendments are basically the
same.
We do not find persuasion in appellants' argument that such
activities during free time are not subject to regulation, even
though, admittedly, political activities cannot be indulged in
during working hours. [
Footnote
29] The influence of political activity by government
employees, if evil in its effects on the service, the employees or
people dealing with them, is hardly less so because that activity
takes place after hours. Of course, the question of the need for
this regulation is for other branches of government, rather than
the courts. Our duty in this case ends if the Hatch Act provision
under examination is constitutional.
Of course, it is accepted constitutional doctrine that these
fundamental human rights are not absolutes. The requirements of
residence and age must be met. The essential rights of the First
Amendment in some instances are subject to the elemental need for
order without which the guarantees of civil rights to others would
be a mockery. [
Footnote 30]
The powers granted by the Constitution to the
Page 330 U. S. 96
Federal Government are subtracted from the totality of
sovereignty originally in the states and the people. Therefore,
when objection is made that the exercise of a federal power
infringes upon rights reserved by the Ninth and Tenth Amendments,
the inquiry must be directed toward the granted power under which
the action of the Union was taken. If granted power is found,
necessarily the objection of invasion of those rights, reserved by
the Ninth and Tenth Amendments, must fail. Again, this Court must
balance the extent of the guarantees of freedom against a
congressional enactment to protect a democratic society against the
supposed evil of political partisanship by classified employees of
government.
As pointed out hereinbefore in this opinion, the practice of
excluding classified employees from party offices and personal
political activity at the polls has been in effect for several
decades. Some incidents similar to those that are under examination
here have been before this Court, and the prohibition against
certain types of political activity by officeholders has been
upheld. The leading case was decided in 1882.
Ex parte
Curtis, 106 U. S. 371.
There, a subordinate United States employee was indicted for
violation of an act that forbade employees who were not appointed
by the President and confirmed by the Senate from giving or
receiving money for political purposes from or to other employees
of the government, on penalty of discharge and criminal punishment.
Curtis urged that the statute was unconstitutional. This Court
upheld the right of Congress to punish the infraction of this law.
The decisive principle was the power of Congress, within reasonable
limits, to regulate, so far as it might deem necessary, the
political conduct of its employees. A list of prohibitions against
acts by public officials that are permitted to other citizens was
given. This Court said, p.
106 U. S. 373:
"The evident purpose of Congress in all this class of enactments
has been to promote efficiency and
Page 330 U. S. 97
integrity in the discharge of official duties, and to maintain
proper discipline in the public service. Clearly such a purpose is
within the just scope of legislative power, and it is not easy to
see why the act now under consideration does not come fairly within
the legitimate means to such an end."
The right to contribute money through fellow employees to
advance the contributor's political theories was held not to be
protected by any constitutional provision. It was held subject to
regulation. A dissent by Mr. Justice Bradley emphasized the broad
basis of the Court's opinion. He contended that a citizen's right
to promote his political views could not be so restricted merely
because he was an official of government. [
Footnote 31]
No other member of the Court joined in this dissent. The
conclusion of the Court, that there was no constitutional bar to
regulation of such financial contributions of public servants, as
distinguished from the exercise of political privileges such as the
ballot, has found acceptance in the subsequent practice of Congress
and the growth of the principle of required political neutrality
for classified public servants as a sound element for efficiency.
[
Footnote 32] The
conviction
Page 330 U. S. 98
that an actively partisan governmental personnel threatens good
administration has deepened since
Ex parte Curtis.
Congress recognizes danger to the service in that political, rather
than official, effort may earn advancement, and to the public in
that governmental favor may be channeled through political
connections. [
Footnote
33]
In
United States v. Wurzbach, 280 U.
S. 396, the doctrine of legislative power over actions
of governmental officials was held valid when extended to members
of Congress. The members of Congress were prohibited from receiving
contributions for "any political purpose whatever" from any other
federal employees. Private citizens were not affected. The argument
of unconstitutionality because of interference with the political
rights of a citizen by that time was dismissed in a sentence.
Compare United States v. Thayer, 209 U. S.
39.
The provisions of § 9 of the Hatch Act and the Civil Service
Rule 1 are not dissimilar in purpose from the statutes against
political contributions of money. The prohibitions now under
discussion are directed at political contributions of energy by
government employees.
Page 330 U. S. 99
These contributions, too, have a long background of disapproval.
[
Footnote 34] Congress and
the President are responsible for an efficient public service. If,
in their judgment, efficiency may be best obtained by prohibiting
active participation by classified employees in politics as party
officers or workers, we see no constitutional objection. [
Footnote 35]
Another Congress may determine that, on the whole, limitations
on active political management by federal personnel are unwise. The
teaching of experience has evidently led Congress to enact the
Hatch Act provisions. To declare that the present supposed evils of
political activity are beyond the power of Congress to redress
would leave the nation impotent to deal with what many sincere men
believe is a material threat to the democratic system. Congress is
not politically naive or regardless of public welfare or that of
the employees. It leaves untouched full participation by employees
in political decisions at the ballot box, and forbids only the
partisan activity of federal personnel deemed offensive to
efficiency. With that limitation only, employees may make their
contributions to public affairs or protect their own interests, as
before the passage of the Act.
Page 330 U. S. 100
The argument that political neutrality is not indispensable to a
merit system for federal employees may be accepted. But because it
is not indispensable does not mean that it is not desirable or
permissible. Modern American politics involves organized political
parties. Many classifications of government employees have been
accustomed to work in politics -- national, state and local -- as a
matter of principle or to assure their tenure. Congress may
reasonably desire to limit party activity of federal employees so
as to avoid a tendency toward a one-party system. It may have
considered that parties would be more truly devoted to the public
welfare if public servants were not overactive politically.
Appellants urge that federal employees are protected by the Bill
of Rights, and that Congress may not
"enact a regulation providing that no Republican, Jew or Negro
shall be appointed to federal office, or that no federal employee
shall attend Mass or take any active part in missionary work."
None would deny such limitations on congressional power, but,
because there are some limitations, it does not follow that a
prohibition against acting as ward leader or worker at the polls is
invalid. A reading of the Act and Rule 1, notes
2 and |
2 and
S. 75fn6|>6,
supra, together with the Commission's
determination, [
Footnote 36]
shows the wide range of public activities with which there is no
interference by the legislation. It is only partisan political
activity that is interdicted. It is active participation in
political management and political campaigns. Expressions, public
or private, on public affairs, personalities and matters of public
interest, not an objective of party action, are unrestricted by law
so long as the government employee does not direct his activities
toward party success.
It is urged, however, that Congress has gone further
Page 330 U. S. 101
than necessary in prohibiting political activity to all types of
classified employees. It is pointed out by appellants "that the
impartiality of many of these is a matter of complete indifference
to the effective performance" of their duties. [
Footnote 37] Mr. Poole would appear to be a
good illustration for appellants' argument. The complaint states
that he is a roller in the mint. We take it this is a job calling
for the qualities of a skilled mechanic, and that it does not
involve contact with the public. Nevertheless, if, in free time, he
is engaged in political activity, Congress may have concluded that
the activity may promote or retard his advancement or preferment
with his superiors. Congress may have thought that government
employees are handy elements for leaders in political policy to use
in building a political machine. For regulation of employees, it is
not necessary that the act regulated be anything more than an act
reasonably deemed by Congress to interfere with the efficiency of
the public service. There are hundreds of thousands of United
States employees with positions no more influential upon policy
determination than that of Mr. Poole. Evidently, what Congress
feared was the cumulative effect on employee morale of political
activity by all employees who could be induced to participate
actively. It does not seem to us an unconstitutional basis for
legislation.
Page 330 U. S. 102
There is a suggestion that administrative workers may be barred
constitutionally from political management and political campaigns,
while the industrial workers may not be barred constitutionally
without an act "narrowly and selectively drawn to define and punish
the specific conduct." A ready answer, it seems to us, lies in the
fact that the prohibition of § 9(a) of the Hatch Act "applies
without discrimination to all employees, whether industrial or
administrative," and that the Civil Service Rules, by § 15 made a
part of the Hatch Act, make clear that industrial workers are
covered in the prohibition against political activity. Congress has
determined that the presence of government employees, whether
industrial or administrative, in the ranks of political party
workers is bad. Whatever differences there may be between
administrative employees of the government and industrial workers
in its employ are differences in detail, so far as the
constitutional power under review is concerned. Whether there are
such differences, and what weight to attach to them, are all
matters of detail for Congress. We do not know whether the number
of federal employees will expand or contract; whether the need for
regulation of their political activities will increase or diminish.
The use of the constitutional power of regulation is for Congress,
not for the courts.
We have said that Congress may regulate the political conduct of
government employees "within reasonable limits," even though the
regulation trenches to some extent upon unfettered political
action. The determination of the extent to which political
activities of governmental employees shall be regulated lies
primarily with Congress. Courts will interfere only when such
regulation passes beyond the generally existing conception of
governmental power. That conception develops from practice,
history, and changing educational, social and economic conditions.
The regulation of such activities as Poole carried on has
Page 330 U. S. 103
the approval of long practice by the Commission, court decisions
upon similar problems, and a large body of informed public opinion.
Congress and the administrative agencies have authority over the
discipline and efficiency of the public service. When actions of
civil servants, in the judgment of Congress, menace the integrity
and the competency of the service, legislation to forestall such
danger and adequate to maintain its usefulness is required. The
Hatch Act is the answer of Congress to this need. We cannot say,
with such a background, that these restrictions are
unconstitutional.
Section 15 of the Hatch Act,
note 3 above defines an active part in political
management or political campaigns as the same activities that the
United States Civil Service Commission has determined to be
prohibited to classified civil service employees by the provisions
of the Civil Service Rules when § 15 took effect July 19, 1940. 54
Stat. 767. The activities of Mr. Poole, as ward executive
committeeman and a worker at the polls, obviously fall within the
prohibitions of § 9 of the Hatch Act against taking an active part
in political management and political campaigns. They are also
covered by the prior determinations of the Commission. [
Footnote 38] We need to examine no
further
Page 330 U. S. 104
at this time into the validity of the definition of political
activity and § 15. [
Footnote
39]
The judgment of the District Court is, accordingly,
Affirmed.
MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took no part in the
consideration or decision of this case.
MR. JUSTICE RUTLEDGE dissents as to Poole for the reasons stated
by MR. JUSTICE BLACK. He does not pass upon the constitutional
questions presented by the other appellants for the reason that he
feels the controversy, as to them, is not yet appropriate for the
discretionary exercise of declaratory judgment jurisdiction.
* Another controversy under the same act is decided today.
Oklahoma v. United States Civil Service Commission, post,
p.
330 U. S. 127.
** In
Myers v. Bethlehem Shipbuilding Corp.,
303 U. S. 41, a
declaratory judgment proceeding, p.
303 U. S. 46,
prior to the adoption of Rule 57, a proceeding before the NLRB was
required. There is statutory judicial review from that Board's
decisions, however.
[
Footnote 1]
August 2, 1939, 53 Stat. 1147; July 19, 1940, 54 Stat. 767; 56
Stat. 181, 986; 58 Stat. 136.; 148, 727; 59 Stat. 108, 658; 60
Stat. 937. Only the first two are important for consideration of
this case.
[
Footnote 2]
18 U.S.C. § 61h, as amended:
"(a) It shall be unlawful for any person employed in the
executive branch of the Federal Government, or any agency or
department thereof, to use his official authority or influence for
the purpose of interfering with an election or affecting the result
thereof. No officer or employee in the executive branch of the
Federal Government, or any agency or department thereof, except a
part-time officer or part-time employee without compensation or
with nominal compensation serving in connection with the existing
war effort, other than in any capacity relating to the procurement
or manufacture of war material, shall take any active part in
political management or in political campaigns. All such persons
shall retain the right to vote as they may choose and to express
their opinions on all political subjects and candidates. For the
purposes of this section the term 'officer' or 'employee' shall not
be construed to include (1) the President and Vice President of the
United States; (2) persons whose compensation is paid from the
appropriation for the office of the President; (3) heads and
assistant heads of executive departments; (4) officers who are
appointed by the President, by and with the advice and consent of
the Senate, and who determine policies to be pursued by the United
States in its relations with foreign powers or in the Nationwide
administration of Federal laws."
"(b) Any person violating the provisions of this section shall
be immediately removed from the position or office held by him, and
thereafter no part of the funds appropriated by any Act of Congress
for such position or office shall be used to pay the compensation
of such person."
53 Stat. 1147, 1148; 54 Stat. 767; 56 Stat. 181.
[
Footnote 3]
18 U.S.C. § 610:
"The provisions of this subchapter which prohibit persons to
whom such provisions apply from taking any active part in political
management or in political campaigns shall be deemed to prohibit
the same activities on the part of such persons as the United
States Civil Service Commission has heretofore determined are at
the time this section takes effect prohibited on the part of
employees in the classified civil service of the United States by
the provisions of the civil service rules prohibiting such
employees from taking any active part in political management or in
political campaigns."
54 Stat. 767, 771.
[
Footnote 4]
See Civil Service Act (1883), § 2, 22 Stat.
403-404:
"SEC. 2. That it shall be the duty of said commissioners: "
"FIRST. To aid the President, as he may request, in preparing
suitable rules for carrying this act into effect, and when said
rules shall have been promulgated it shall be the duty of all
officers of the United States in the departments and offices to
which any such rules may relate to aid, in all proper ways, in
carrying said rules, and any modifications thereof, into
effect."
"SECOND. And, among other things, said rules shall provide and
declare, as nearly as the conditions of good administration will
warrant, as follows:"
"
* * * *"
"Sixth, that no person in said service has any right to use his
official authority or influence to coerce the political action of
any person or body."
5 U.S.C. § 631:
"The President is authorized to . . . establish regulations for
the conduct of persons who may receive appointments in the civil
service."
First Annual Report, Civil Service Commission, H.R.Ex.Doc. No.
105, 48th Cong., 1st Sess., p. 45:
"In the exercise of the power vested in the President by the
Constitution, and by virtue of the 1753d section of the Revised
Statutes, and of the civil service act approved January 16, 1883,
the following rules for the regulation and improvement of the
executive civil service are hereby amended and promulgated: "
"
RULE I"
"No person in said service shall use his official authority or
influence either to coerce the political action of any person or
body or to interfere with any election."
Executive Order No. 642, June 3, 1907 (amended to consolidate
without changing wording, Executive Order No. 655, June 15, 1907);
Twenty-Fourth Annual Report, Civil Service Commission, House Doc.
No. 600, 60th Cong., 1st Sess., p. 104:
"Section 1 of Rule I of the civil service rules is hereby
amended to read as follows: "
"No person in the Executive civil service shall use his official
authority or influence for the purpose of interfering with an
election or affecting the result thereof. Persons who, by the
provisions of these rules, are in the competitive classified
service, while retaining the right to vote as they please and to
express privately their opinions on all political subjects, shall
take no active part in political management or in political
campaigns."
[
Footnote 5]
Civil Service Rules 15, 3 Fed.Reg. 1525.
[
Footnote 6]
5 CFR, Cum.Supp., § 1.1:
"No interference with elections. No person in the executive
civil service shall use his official authority or influence for the
purpose of interfering with an election or affecting the results
thereof. Persons who by the provisions of the rules in this chapter
are in the competitive classified service, while retaining the
right to vote as they please and to express their opinion on all
political subjects, shall take no active part in political
management or in political campaigns."
Section 15.1:
"Legal appointment necessary to compensation. Whenever the
Commission finds, after due notice and opportunity for explanation,
that any person has been appointed to or is holding any position,
whether by original appointment, promotion, assignment, transfer,
or reinstatement, in violation of the Civil Service Act or Rules,
or of any Executive order or any regulation of the Commission, or
that any employee subject thereto has violated such Act, Rules,
orders, or regulations, it shall certify the facts to the proper
appointing officer with specific instructions as to discipline or
dismissal of the person or employee affected. If the appointing
officer fails to carry out the instructions of the Commission
within 10 days after receipt thereof, the Commission shall certify
the facts to the proper disbursing and auditing officers, and such
officers shall make no payment or allowance of the salary or wages
of any such person or employee thereafter accruing."
See E.O. 8705, March 5, 1941, 6 Fed.Reg. 1313.
[
Footnote 7]
See note 4
supra, and 5 CFR § 1.1, June 1, 1938.
A change occurred also in Rule 15. This was to comply with a
ruling of the Attorney General that the Hatch Act made removal from
office a mandatory penalty for forbidden political activity. 40
Op.A.G., Political Activity by Government Employees, January 8,
1941.
See note 5
supra, for Rule 15 prior to Hatch Act.
[
Footnote 8]
See 28 U.S.C. § 380(a); § 11-306 District of Columbia
Code.
[
Footnote 9]
Judicial Code § 274d; 28 U.S.C. § 400.
[
Footnote 10]
No contention that appellant, United Public Workers of America
(CIO), lacked capacity to bring this action is made by appellees.
We need not consider the question here.
McCandless v.
Furlaud, 293 U. S. 67,
293 U. S. 73-74.
See Fishgold v. Sullivan Drydock & Repair Corp.,
328 U. S. 275.
[
Footnote 11]
"In discharge of their duties of citizenship, of their right to
vote, and in exercise of their constitutional rights of freedom of
speech, of the press, of assembly, and the right to engage in
political activity, the individual plaintiffs desire to engage in
the following acts: write for publication letters and articles in
support of candidates for office; be connected editorially with
publications which are identified with the legislative program of
UFWA [former name of the present union appellant] and candidates
who support it; solicit votes, aid in getting out voters, act as
accredited checker, watcher, or challenger; transport voters to and
from the polls without compensation therefor; participate in and
help in organizing political parades; initiate petitions, and
canvass for the signatures of others on such petitions; serve as
party ward committeeman or other party official, and perform any
and all acts not prohibited by any provision of law other than the
second sentence of Section 9(a) and Section 15 of the Hatch Act,
which constitute taking an active part in political management and
political campaigns."
[
Footnote 12]
"The second sentence of Section 9(a) of the Hatch Act is
repugnant to the Constitution of the United States as a deprivation
of freedom of speech, of the press, and of assembly in violation of
the First Amendment."
"The second sentence of Section 9(a) of the Hatch Act is
repugnant to the Constitution of the United States as a deprivation
of the fundamental right of the people of the United States to
engage in political activity, reserved to the people of the United
States by the Ninth and Tenth Amendments."
"The second sentence of Section 9(a) of the Hatch Act is
repugnant to the Constitution of the United States, since it
unreasonably prohibits Federal employees from engaging in
activities which may be lawfully carried on by persons who are not
Federal employees, thus constituting a deprivation of liberty in
violation of the Fifth Amendment."
"The second sentence of Section 9(3) of the Hatch Act is
repugnant to the Constitution of the United States since it effects
an arbitrary and grossly unreasonable discrimination between
employees of the Federal Government in the classified civil service
subject to its provisions and employees specifically exempted
therefrom, in violation of the Fifth Amendment."
"The second sentence of Section 9(a) of the Hatch Act is
repugnant to the Constitution of the United States since it is so
vague and indefinite as to prohibit lawful activities as well as
activities which are properly made unlawful by other provisions of
law, in violation of the Fifth Amendment."
[
Footnote 13]
Rules of the Supreme Court of the United States, Rule 47:
"Appeals to this court under the Act of August 24, 1937, shall
be governed, as far as may be, by the rules of this court
regulating the procedure on appeal in other cases from courts of
the United States; . . . The record shall be made up and the case
docketed in this court within sixty days from the time the appeal
is allowed."
[
Footnote 14]
Id., Rule 11:
"1. It shall be the duty of the appellant to docket the case and
file the record thereof with the clerk of this court by or before
the return day, whether, in vacation or in term time. But, for good
cause shown, the justice or judge who signed the citation, or any
justice of this court, may enlarge the time, before its expiration,
the order of enlargement to be filed with the clerk of this court.
If the appellant shall fail to comply with this rule, the appellee
may have the cause docketed and the appeal dismissed upon producing
a certificate, whether in term or vacation, from the clerk of the
court wherein the judgment or decree was rendered, stating the case
and certifying that such appeal has been duly allowed. And in no
case shall the appellant be entitled to docket the cause and file
the record after the appeal shall have been dismissed under this
rule, unless by special leave of the court."
[
Footnote 15]
Steps allowed in the district court after the allowance of
appeal, such as preparation of the record, extension of time and
cost or supersedeas bonds, are for convenience taken in the court
possessed of the record. Rules 10, 11 and 36, Supreme Court; Rule
72, Rules of Civil Procedure.
[
Footnote 16]
3 Cranch 239;
Bingham v. Morris, 7 Cranch 99;
Sparrow v.
Strong, 3 Wall. 97,
70 U. S. 103.
Compare Griggsby v. Purcell, 99 U. S.
505.
[
Footnote 17]
Compare Georgia Lumber Co. v. Compania, 323 U.
S. 334.
[
Footnote 18]
"At this time, when the fate of the entire world is in the
balance, I believe it is not only proper but an obligation for all
citizens to participate actively in the making of the vital
political decisions on which the success of the war and the
permanence of the peace to follow so largely depend. For the
purpose of participating in the making of these decisions, it is my
earnest desire to engage actively in political management and
political campaigns. I wish to engage in such activity upon my own
time, as a private citizen."
"I wish to engage in such activities on behalf of those
candidates for public office who I believe will best serve the
needs of this country, and with the object of persuading others of
the correctness of my judgments and of electing the candidates of
my choice. This objective I wish to pursue by all proper means,
such as engaging in discussion, by speeches to conventions, rallies
and other assemblages, by publicizing my views in letters and
articles for publication in newspapers and other periodicals, by
aiding in the campaign of candidates for political office, by
posting banners and posters in public places, by distributing
leaflets, by 'ringing doorbells,' by addressing campaign
literature, and by doing any and all acts of like character
reasonably designed to assist in the election of candidates I
favor."
"I desire to engage in these activities freely, openly, and
without concealment. However, I understand that the second sentence
of Section 9(a) of the Hatch Act and the Rules of the CSC provide
that, if I engage in this activity, the Civil Service Commission
will order that I be dismissed from federal employment. Such
deprivation of my job in the federal government would be a source
of immediate and serious financial loss and other injury to
me."
"At the last Congressional election, I was very much interested
in the outcome of the campaign, and offered to help the party of my
choice by being a watcher at the polls. I obtained a watcher's
certificate, but I was advised that there might be some question of
my right to use the certificate and retain my federal employment.
Therefore, on November 1, 1943, the day before election, I called
the regional office of the Civil Service Commission in Philadelphia
and spoke to a person who gave his name as Mr. _____ stated that,
if I used my watcher's certificate, the Civil Service Commission
would see that I was dismissed from my job at the __________ for
violation of the Hatch Act. I therefore, did not use the
certificate as I had intended."
"I believe that Congress may not constitutionally abridge my
right to engage in the political activities mentioned above.
However, unless the courts prevent the Civil Service Commission
from enforcing this unconstitutional law, I will be unable freely
to exercise my rights as a citizen."
(Identifying words omitted.)
[
Footnote 19]
Correspondence & Public Papers of John Jay, Vol. 3, p. 486;
Hayburn's Case
and notes, 2 Dall. 409;
Alabama v. Arizona, 291 U.
S. 286,
291 U. S. 291;
Alabama State Federation of Labor v. McAdory, 325 U.
S. 450,
325 U. S.
461.
[
Footnote 20]
Electric Bond & Share Co. v. Securities and Exchange
Commission, 303 U. S. 419,
303 U. S. 443;
United States v. Apalachian Electric Power Co.,
311 U. S. 377,
311 U. S. 423;
Alabama State Federation of Labor v. McAdory, supra,
325 U. S. 461,
and cases cited;
Coffman v. Breeze Corporations,
323 U. S. 316,
323 U. S. 324,
and cases cited.
[
Footnote 21]
Altvater v. Freeman, 319 U. S. 359,
319 U. S.
363.
[
Footnote 22]
It has long been this Court's
"considered practice not to decide abstract, hypothetical or
contingent questions, . . . or to decide any constitutional
question in advance of the necessity for its decision, . . . or to
formulate a rule of constitutional law broader than is required by
the precise facts to which it is to be applied, . . . or to decide
any constitutional question except with reference to the particular
facts to which it is to be applied. . . ."
Alabama State Federation of Labor v. McAdory,
325 U. S. 450,
325 U. S. 461,
and cases cited.
See Alma Motor Co. v. Timken-Detroit Axle
Co., 329 U. S. 129.
[
Footnote 23]
I have for a long time been interested in political activities.
Both before and since my employment in the United States Mint, I
have taken an active part in political campaigns and political
management. In the 28th Ward, the Division in the City of
Philadelphia, I am and have been a Ward Executive Committeeman. In
that position I have on many occasions taken an active part in
political management and political campaigns. I have visited the
residents of my Ward and solicited them to support my party and its
candidates; I have acted as a watcher at the polls; I have
contributed money to help pay its expenses; I have circulated
campaign literature, placed banners and posters in public places,
distributed leaflets, assisted in organizing political rallies and
assemblies, and have done any and all acts which were asked of me
in my capacity as a Ward Executive Committeeman. I have engaged in
these activities both before and after my employment in the United
States Mint. I intend to continue to engage in these activities on
my own time as a private citizen, openly, freely, and without
concealment.
"However, I have been served with a proposed order of the United
States Civil Service Commission, dated January 12, 1944, which
advises me that, because of the political activities mentioned
above, and for no other reason,"
"it is . . . the opinion of this Commission that George P.
Poole, an employee of the United States Mint at Philadelphia,
Pennsylvania, has been guilty of political activity in violation of
Section 1, Civil Service Rule I,"
"and that, unless I can refute the charges that I have engaged
in political activity, I will be dismissed from my position as a
Roller in the United States Mint at Philadelphia,
Pennsylvania."
[
Footnote 24]
The tentative charge and finding reads:
"
I
"
"It is charged: That . . ."
"The said George P. Poole held the political party office of
Democratic Ward Executive Committeeman in the City of Philadelphia,
Pennsylvania."
"The said George P. Poole was politically active by aiding and
assisting the Democratic Party in the capacity of worker at the
polls on general election day, November 5, 1940, and assisted in
the distribution of funds in paying party workers for their
services on general election day, November 5, 1940."
"
III
"
"The above-described activity constitutes taking an active part
in political management and in a political campaign in
contravention of Section 1, Civil Service Rule I, and the
regulations adopted by the Commissioners thereunder."
[
Footnote 25]
Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U. S. 270,
312 U. S. 273;
Altvater v. Freeman, 319 U. S. 359,
319 U. S. 364;
Nashville, C. & St. L. Ry. v. Wallace, 288 U.
S. 249,
288 U. S.
260.
[
Footnote 26]
28 U.S.C. § 400:
"In cases of actual controversy except with respect to Federal
taxes the courts of the United States shall have power upon
petition, declaration, complaint, or other appropriate pleadings to
declare rights and other legal relations of any interested party
petitioning for such declaration, whether or not further relief is
or could be prayed, and such declaration shall have the force and
effect of a final judgment or decree and be reviewable as
such."
Aetna Life Insurance Co. v. Haworth, 300 U.
S. 227,
300 U. S. 241;
Nashville, C. & St. L. Ry. v. Wallace, 288 U.
S. 249,
288 U. S.
264.
[
Footnote 27]
See White v. Berry, 171 U. S. 366,
171 U. S. 377;
In re Sawyer, 124 U. S. 200,
124 U. S.
212.
[
Footnote 28]
We agree with the Government that the complaint does not fail to
state a cause of action against the Commission because it seeks
relief against the Commission's action under the Hatch Act, instead
of Rule 1 of the Commission. So far as Poole's controversy is
concerned, the act and the rule are the same.
[
Footnote 29]
In labor-management relationships, it has been recognized by
this Court that circumstances might justify the prohibition by
employers of union activity by employees on the employer's
property, even though carried out during nonworking hours.
Republic Aviation Corp. v. National Labor Relations Board,
324 U. S. 793,
324 U. S.
803.
[
Footnote 30]
Chaplinsky v. New Hampshire, 315 U.
S. 568,
315 U. S. 571;
Cantwell v. Connecticut, 310 U. S. 296,
310 U. S. 304,
310 U. S. 310;
Schneider v . State, 308 U. S. 147,
299 U. S. 165;
De Jonge v. Oregon, 299 U. S. 353,
299 U. S. 364;
Cox v. New Hampshire, 312 U. S. 569,
312 U. S. 574;
Prince v. Massachusetts, 321 U. S. 158,
321 U. S. 169;
Reynolds v. United States, 98 U. S.
145.
[
Footnote 31]
106 U.S.
106 U. S.
376-77:
". . . every citizen having the proper qualifications has the
right to accept office, and to be a candidate therefor. This is a
fundamental right of which the legislature cannot deprive the
citizen, nor clog its exercise with conditions that are repugnant
to his other fundamental rights. Such a condition I regard that
imposed by the law in question to be. It prevents the citizen from
cooperating with other citizens of his own choice in the promotion
of his political views. . . . The whole thing seems to me absurd.
Neither men's mouths nor their purses can be constitutionally tied
up in that way."
[
Footnote 32]
Kaplan, Political Neutrality of the Civil Service, 1
Pub.Pers.Rev. 10; White, Civil Service in the Modern State (1930);
Mosher and Kingsley, Public Personnel Administration (1936); White,
Government Career Service (1935); Meriam, Public Personnel Problems
(1938).
Military personnel is restricted in much the same manner. Army
Regulations No. 600-10, p. 5:
"6. Political activities of persons in military service. --
a. General. -- No member of the Army, while on active
duty, will use his official authority or influence for the purpose
of interfering with an election or affecting the course or outcome
thereof. Such persons, while on active duty, retain the right to
vote, to express their opinions privately and informally on all
political subjects and candidates, and to become candidates for
public office as permitted in these regulations. They will not be
permitted to participate in any way in political management or
political campaigns."
An interesting discussion of the general subject of interference
by federal officers in elections will be found in the Appendix to
the Congressional Globe, Dec. 3, 1838-Feb.19, 1839, pp. 157, 160
and 409 411.
[
Footnote 33]
86 Cong.Rec. 2338-2367, 2426-2442, 2696-2723, 2920-2963,
2969-2987, 9360-9380, 9426-9432, 9434-9463.
[
Footnote 34]
Richardson, Messages and Papers of the Presidents (1897),
Harrison, vol. IV, p. 52;
id. Hayes, vol. VII, pp. 450-51.
See note 4
supra.
When, in 1891, New Bedford, Mass., under a rule, removed a
policeman for political activity, an opinion by Mr. Justice, then
Judge, Holmes disposed summarily of McAuliffe's contention that the
rule invaded his right to express his political opinion with the
epigram, "The petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a policeman."
McAuliffe v. New Bedford, 155 Mass. 216, 220, 29 N.E.
517.
[
Footnote 35]
Several states have similar provisions. Ala.Code (1940), Tit.
12, § 157; Conn.Gen.Stat. (Supp. 1939), c. 105a § 698e; Ohio
Gen.Code (Page, 1937), § 486-23; Pa.Stat.Ann. (Purdon, 1942), Tit.
71, § 41.904; R.I. Acts & Resolves, 1939, p. 118.
[
Footnote 36]
United States Civil Service Commission, Political Activity and
Political Assessments, Form 1236, January 1944.
[
Footnote 37]
"In the light of these wide variations in duties and
responsibility for public policy and its fair enforcement, a
restriction reasonably designed to preserve the impartiality of a
Collector of the Revenue, a U.S. Marshal, an FBI or Treasury agent
may be utterly absurd and unjustified when applied to a lens
grinder, a stock clerk, a machinist, or an elevator operator. It is
therefore impossible both to observe reasonable regard for
constitutional rights and to enact sweeping prohibitions as to
political rights applicable to all Federal employees, whatever the
nature of their duties. In dealing with so complicated and varied a
subject matter, a hatchet cannot readily be substituted for a
scalpel."
[
Footnote 38]
United States Civil Service Commission, Political Activity and
Political Assessments, Form 1236, September, 1939:
"15. Committees. -- Service on or for any political committee or
similar organization is prohibited. . . ."
"
* * * *"
"20. Activity at the polls and for candidates. -- . . ."
"
* * * *"
"It is the duty of an employee to avoid any offensive activity
at primary and regular elections. He must refrain from soliciting
votes, assisting voters to mark ballots, helping to get out the
voters on registration and election days, acting as the accredited
checker, watcher, or challenger of any party or faction, assisting
in counting the vote, or engaging in any other activity at the
polls except the marking and depositing of his own ballot."
[
Footnote 39]
United States v. Wurzbach, 280 U.
S. 396,
280 U. S.
399.
MR. JUSTICE FRANKFURTER, concurring.
The terms of the Act of August 24, 1937, 50 Stat. 751, 752, 28
U.S.C. § 380a, in the light of its history, have convinced me that
this case should be dismissed for want of jurisdiction.
In that Act, Congress put a limit to the time within which a
case may be docketed here after an appeal below is allowed. Such a
limitation by Congress is in the exercise of its power to regulate
the appellate jurisdiction of this Court. It is not within our
power to enlarge a limit fixed by Congress unless Congress itself
gave the Court such dispensing power.
In allowing a direct appeal to this Court from a district court
"under such rules as may be prescribed," Congress did not mean to
give this Court power to defeat the considerations of speed in the
disposition of controversies involving the constitutionality of
federal legislation which led to the specific provision that a case
be docketed "within sixty days from the time such appeal is
allowed."
Page 330 U. S. 105
No rule of this Court could disregard the limitations for
perfecting an appeal made by Congress. Nor does Rule 47, which was
the rule responsive to the Act of August 24, 1937, purport to do
so. It merely reasserts the statutory requirement that, in a case
like this, "The record shall be made up and the case docketed in
this court within sixty days from the time the appeal is allowed."
The introductory part of Rule 47, whereby the Rules of this Court
regulating appellate procedure in other cases are adopted "as far
as may be," has ample scope for operation without qualifying the
necessity for speedy perfection of an appeal in cases involving
constitutionality, so that the validity of acts of Congress may not
remain in doubt through protracted litigation. This was a deep
concern of Congress and its reason for imposing the sixty-day
limitation for perfecting appeals in this class of cases.
But, under compulsion of the Court's assumption of jurisdiction,
I reach the merits and join in MR. JUSTICE REED's opinion.
MR. JUSTICE BLACK, dissenting.
The sentence in § 9 of the statute, here upheld, makes it
unlawful for any person employed in the executive branch of the
Federal Government, with minor numerical exceptions, [
Footnote 2/1] to "take any active part in
political management or in political campaigns." The punishment
provided
Page 330 U. S. 106
is immediate discharge and a permanent ban against reemployment
in the same position. [
Footnote
2/2] The number of federal employees thus barred from political
action is approximately three million. Section 12 of the same Act
affects the participation in political campaigns of many thousands
of state employees. [
Footnote 2/3]
No one of all these millions of citizens can, without violating
this law, "take any active part" in any campaign for a cause or for
a candidate if the cause or candidate is "specifically identified
with any National or State political party." Since, under our
common
Page 330 U. S. 107
political practices, most causes and candidates are espoused by
political parties, the result is that, because they are paid out of
the public treasury, all these citizens who engage in public work
can take no really effective part in campaigns that may bring about
changes in their lives, their fortunes, and their happiness.
[
Footnote 2/4]
We are not left in doubt as to how numerous and varied are the
"activities" prohibited. For § 1 sweepingly describes them as
"the same activities . . . as the United States Civil Service
Commission has heretofore determined are at the time this section
takes effect prohibited on the part of employees in the classified
civil service of the United States. . . ."
Along with the vague and uncertain prior prohibitions of the
Commission are these things which the Commission had clearly
prohibited: serving as an election officer; publicly expressing
political views at a party caucus or political gathering for or
against any candidate or cause identified with a party;
Page 330 U. S. 108
soliciting votes for a party or candidate; participating in a
political parade; writing for publication or publishing any letter
or article, signed or unsigned, in favor of or against any
political party, candidate, or faction; initiating, or canvassing
for signatures on, community petitions or petitions to
Congress.
In view of these prohibitions, it is little consolation to
employees that the Act contradictorily says that they may "express
their opinions on all political subjects and candidates." For this
permission to "express their opinions" is, the Commission has
rightly said, "subject to the prohibition that employees may not
take any active part in . . . political campaigns." The hopeless
contradiction between this privilege of an employee to talk and the
prohibition against his talking stands out in the Commission's
further warning to all employees that they can express their
opinions publicly, but
"Public expression of opinion in such a way as to constitute
taking an active part in political management or in political
campaigns is accordingly prohibited."
Thus, whatever opinions employees may dare to express, even
secretly, must be at their peril. They cannot know what particular
expressions may be reported to the Commission and held by it to be
a sufficient political activity to cost them their jobs. Their
peril is all the greater because of another warning by the
Commission that
"Employees are . . . accountable for political activity by
persons other than themselves, including wives or husbands, if, in
fact, the employees are thus accomplishing by collusion and
indirection what they may not lawfully do directly and openly."
Thus, are the families of public employees stripped of their
freedom of political action. The result is that the sum of
political privilege left to government and state employees and
their families to take part in political campaigns seems to be
this: they may vote in silence; they may carefully and quietly
express a political view at
Page 330 U. S. 109
their peril, and they may become "spectators" (this is the
Commission's word) at campaign gatherings, though it may be highly
dangerous for them to "second a motion" or let it be known that
they agree or disagree with a speaker.
All of the petitioners here challenge the constitutional
validity of that sentence of § 9 of the statute which prohibits all
federal employees from taking "any active part in political
management or in political campaigns" and which, by reference, only
sweeps under this prohibition all then-existing civil service
regulations. The charge is that this provision, thus supplemented
by the regulations, violates the First Amendment by prohibiting
freedom of press, speech, and assembly; that it violates the Fifth
Amendment because it effects an arbitrary and gross discrimination
between government employees covered and those exempted; that it
also violates the Fifth Amendment because it is so vague and
indefinite as to prohibit lawful activities as well as activities
which are properly made unlawful by other provisions of law. Thus,
these attacks of Poole and all the other petitioners are identical,
namely, that the provision is unconstitutional on its face. The
Court decides this question against Poole after holding that his
case presents a justiciable controversy. I think Poole's challenge
to the constitutionality of the provision should be sustained. And
since I agree with MR. JUSTICE DOUGLAS that all the petitioners'
complaints state a case or controversy, and show threats of
imminent irreparable damages, I think that the contention that the
challenged provision is unconstitutional on its face should be
sustained as to all of them.
Had this measure deprived five million farmers or a million
businessmen of all right to participate in elections, because
Congress thought that federal farm or business subsidies might
prompt some of them to exercise, or be susceptible to, a corrupting
influence on politics or government,
Page 330 U. S. 110
I would not sustain such an Act on the ground that it could be
interpreted so as to apply only to some of them. Certainly laws
which restrict the liberties guaranteed by the First Amendment
should be narrowly drawn to meet the evil aimed at and to affect
only the minimum number of people imperatively necessary to prevent
a grave and imminent danger to the public. [
Footnote 2/5] Furthermore, what federal employees can or
cannot do consistently with the various civil service regulations,
rules, warnings, etc., is a matter of so great uncertainty that no
person can even make an intelligent guess. This was demonstrated by
the government's briefs and oral arguments in this case. I would
hold that the provision here attacked is too broad, ambiguous, and
uncertain in its consequences to be made the basis of removing
deserving employees from their jobs.
See dissenting
opinion,
Williams v. North Carolina, 325 U.
S. 226,
325 U. S. 261,
325 U. S.
276-278 and cases collected, note 16.
The right to vote and privately to express an opinion on
political matters, important though they be, are but parts of the
broad freedoms which our Constitution has provided as the bulwark
of our free political institutions. Popular government, to be
effective, must permit and encourage much wider political activity
by all the people. [
Footnote 2/6]
Real popular government means
"that men may speak as they think on matters vital to them, and
that falsehoods may be exposed through the processes of education
and discussion . . . Those who won our independence had confidence
in the power of free and fearless reasoning and communication of
ideas to discover and spread political
Page 330 U. S. 111
and economic truth."
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 95.
Legislation which muzzles several million citizens threatens
popular government not only because it injures the individuals
muzzled, but also because of its harmful effect on the body politic
in depriving it of the political participation and interest of such
a large segment of our citizens. Forcing public employees to
contribute money and influence can well be proscribed in the
interest of "clean politics" and public administration. But I think
the Constitution prohibits legislation which prevents millions of
citizens from contributing their arguments, complaints, and
suggestions to the political debates which are the essence of our
democracy; prevents them from engaging in organizational activity
to urge others to vote and take an interest in political affairs;
bars them from performing the interested citizen's duty of insuring
that his and his fellow citizens' votes are counted. Such drastic
limitations on the right of all the people to express political
opinions and take political action would be inconsistent with the
First Amendment's guaranty of freedom of speech, press, assembly,
and petition. And it would violate, or come dangerously close to
violating, Article I and the Seventeenth Amendment of the
Constitution, which protect the right of the people to vote for
their Congressmen and their United States Senators and to have
their votes counted.
See Ex parte Yarbrough, 110 U.
S. 651;
United States v. Mosley, 238 U.
S. 383;
United States v. Classic, 313 U.
S. 299,
313 U. S.
314.
There is nothing about federal and state employees as a class
which justifies depriving them or society of the benefits of their
participation in public affairs. They, like other citizens, pay
taxes and serve their country in peace and in war. The taxes they
pay and the wars in which they fight are determined by the elected
spokesmen of all the people. They come from the same homes,
communities, schools, churches, and colleges as do the other
Page 330 U. S. 112
citizens. I think the Constitution guarantees to them the same
right that other groups of good citizens have to engage in
activities which decide who their elected representatives shall
be.
No statute of Congress has ever before attempted so drastically
to stifle the spoken and written political utterances and lawful
political activities of federal and state employees as a class. The
nearest approach was the Civil Service Act of 1883, 22 Stat.
403-404, which authorized the President to promulgate rules so
that, among other things, no government employee should "use his
official authority or influence to coerce the political action of
any person or body." In 1907, the Civil Service Commission,
purporting to act under authority of the 1883 Act, did, as the
Court points out, prohibit civil service employees from taking "an
active part in political management or in political campaigns." But
this Court has not approved the statutory power of the Commission
to promulgate such a rule, nor has it ever, expressly or by
implication, approved the constitutional validity of any such
sweeping abridgement of the right of freedom of expression. Neither
Ex parte Curtis, 106 U. S. 371, nor
United States v. Wurzbach, 280 U.
S. 396, lend the slightest support to the present
statute. Both of these cases related to statutes which did no more
than limit the right of employees to collect money from other
employees for political purposes. Indeed, the
Curtis
decision seems implicitly to have rested on the assumption that
many political activities of government employees, beyond merely
voting and speaking secretly, would no, and could not, under the
Constitution, be impaired by the legislation there at issue.
Ex
parte Curtis, supra, at
106 U. S.
375.
It is argued that it is in the interest of clean politics to
suppress political activities of federal and state employees. It
would hardly seem to be imperative to muzzle millions
Page 330 U. S. 113
of citizens because some of them, if left their constitutional
freedoms, might corrupt the political process. All political
corruption is not traceable to state and federal employees.
Therefore, it is possible that other groups may later be compelled
to sacrifice their right to participate in political activities for
the protection of the purity of the Government of which they are a
part.
It may be true, as contended, that some higher employees, unless
restrained, might coerce their subordinates, or that government
employees might use their official position to coerce other
citizens. But is such a possibility of coercion of a subordinate by
his employer limited to governmental employer-employee
relationships? [
Footnote 2/7] The
same quality of argument would support a law to suppress the
political freedom of all employees of private employers, and
particularly of employers who borrow money or draw subsidies from
the Government. Nor does it seem plausible that all of the millions
of public employees whose rights to free expression are here
stifled might, if they participate in elections, coerce other
citizens not employed by the Government or the States. Poole, one
of the petitioners here, is a roller in a United States mint. His
job is about on a par in terms of political influence with that of
most other state, federal, and private business employees. Such
jobs generally do not give such employees who hold them sufficient
authority to enable them to wield a dangerous or coercive influence
on the political world. If the possibility exists that some other
public employees may, by reason of their more influential
positions, coerce other public employees or other citizens, laws
can be drawn to punish the coercers. [
Footnote 2/8] It hardly seems consistent with
Page 330 U. S. 114
our system of equal justice to all to suppress the political and
speaking freedom of millions of good citizens because a few bad
citizens might engage in coercion. [
Footnote 2/9]
It may also be true, as contended, that, if public employees are
permitted to exercise a full freedom to express their views in
political campaigns, some public officials will discharge some
employees and grant promotion to others on a political, rather than
on a merit, basis. For the same reasons, other public officials,
occupying positions of influence, may use their influence to have
their own political supporters appointed or promoted. But here
again, if the practice of making discharges, promotions, or
recommendations for promotions on a political basis is so great an
evil as to require legislation, the law could punish those public
officials who engage in the practice. To punish millions of
employees and to deprive the nation of their contribution to public
affairs in order to remove temptation from a proportionately small
number of public officials seems, at the least, to be a novel
method of suppressing what is thought to be an evil practice.
Our political system, different from many others, rests on the
foundation of a belief in rule by the people -- not some, but all
the people. Education has been fostered better to fit people for
self-expression and good citizenship. In a country whose people
elect their leaders and decide great public issues, the voice of
none should be suppressed -- at least, such is the assumption of
the First Amendment. That Amendment, unless I misunderstand its
meaning, includes a command that the Government must, in order to
promote its own interest, leave the people at liberty to speak
their own thoughts about government, advocate their own favored
governmental causes, and work for their own political candidates
and parties.
Page 330 U. S. 115
The section of the Act here held valid reduces the
constitutionally protected liberty of several million citizens to
less than a shadow of its substance. It relegates millions of
federal, state, and municipal employees to the role of mere
spectators of events upon which hinge the safety and welfare of all
the people, including public employees. It removes a sizable
proportion of our electorate from full participation in affairs
destined to mould the fortunes of the nation. It makes honest
participation in essential political activities an offense
punishable by proscription from public employment. It endows a
governmental board with the awesome power to censor the thoughts,
expressions, and activities of law-abiding citizens in the field of
free expression, from which no person should be barred by a
government which boasts that it is a government of, for, and by the
people -- all the people. Laudable as its purpose may be, it seems
to me to hack at the roots of a Government by the people
themselves, and, consequently, I cannot agree to sustain its
validity.
[
Footnote 2/1]
Those excepted are
"a part-time officer or part-time employee without compensation
or with nominal compensation serving in connection with the
existing war effort,"
commonly designated as "Dollar-a-year men," and
"(1) the President and Vice President of the United States; (2)
persons whose compensation is paid from the appropriation for the
office of the President; (3) heads and assistant heads of executive
departments; (4) officers who are appointed by the President, by
and with the advice and consent of the Senate, and who determine
policies to be pursued by the United States in its relations with
foreign powers or in the Nationwide administration of Federal
laws."
§ 9a; 18 U.S.C. 61h(a), as amended.
[
Footnote 2/2]
"Any person violating the provisions of this section shall be
immediately removed from the position or office held by him, and
thereafter no part of the funds appropriated by any Act of Congress
for such position or office shall be used to pay the compensation
of such person."
§ 9b; 18 U.S.C. 61h(b).
[
Footnote 2/3]
All state employees who work for any state agency financed in
whole or in part by federal grants or loans are affected by the
Act. Section 12a; 18 U.S.C. 61
l.
In 1945, the Federal Government paid $865,729,569.15 in grants
in aid to states,
Annual Report of the Secretary of the
Treasury on the State of the Finances, for the fiscal year ended
June 30, 1945 (1946) 714, and $688,506,157.11 in direct
payments to states for the social security program, public roads
and emergency maternity and infant care.
Id. at 718.
Grants to and expenditures within states, providing direct relief,
work relief, and other aid such as the Agricultural Adjustment
Program, National Housing Agency annual contributions, etc.,
totaled $1,353,427,735.68.
Id. at 721.
In July, 1946, the number of persons employed by state and local
governments totaled approximately 2,754,000, of whom 641,000 were
employed in schools and 2,111,000 were nonschool employees.
Public Employment in July, 1946, Government Employment,
Dept. of Commerce, Bureau of the Census, Vol. 7, No. 3 (1946) 1. A
breakdown of county employees is a sample which suggests the
proportion state and local whose salaries may be paid in whole or
in part by federal funds thus coming under the provisions of this
Act. Of a total of 310,000 nonschool county employees in the entire
country, 77,000 were employed in highway departments; 4,700 in
natural resources; 12,600 in health and sanitation; 40,000 in
hospitals; 22,000 in public welfare.
County Employment in 1944,
Government Employment, op. cit. supra, Vol. 5, No. 2 (1944)
7.
[
Footnote 2/4]
There are minor exceptions. One concession only is granted those
federal employees who live
"in the immediate vicinity of the National Capital in the States
of Maryland and Virginia or in municipalities the majority of whose
voters are employed by the Government of the United States. . .
."
The Civil Service Commission may "permit" them to participate in
campaigns involving the "municipality or political subdivision" in
which they reside "to the extent the Commission deems to be in
[their] domestic interest . . . ." Section 16; 18 U.S.C. 61p. A
general exception permits participation (1) in an
"election and the preceding campaign if none of the candidates
is to be nominated or elected . . . as representing a [political]
party . . . (2) in connection with any question which is not
specifically identified with any National or State political party.
For the purposes of this section, questions relating to
constitutional amendments, referendums, approval of municipal
ordinances, and others of a similar character, shall not be deemed
to be specifically identified with any National or State political
party."
§ 18, 18 U.S.C. § 61r. The importance and number of political
issues thus excepted,
e.g., Sunday movies, local school
bond issues, location of local parks, election of local officials
in whom no political party is interested, are obviously very
small.
[
Footnote 2/5]
Thornhill v. Alabama, 310 U. S. 88;
Marsh v. Alabama, 326 U. S. 501;
Bridges v. California, 314 U. S. 252,
314 U. S. 260,
314 U. S.
263.
[
Footnote 2/6]
Some states require that employers pay their employees for the
time they spend away from work while voting.
See People v. Ford
Motor Co., 271 App.Div. 141, 63 N.Y.S.2d 697; Note,
Pay
While Voting, 47 Col.L.Rev. 135 (1947).
[
Footnote 2/7]
Many states have laws protecting nongovernment employees from
employer interference with their voting independence.
See
Note,
Pay While Voting, 47 Col.L.Rev. 135, 136, note 9
(1947).
[
Footnote 2/8]
See 330 U.S.
75fn2/7|>note 7,
supra.
[
Footnote 2/9]
The Act, in fact, leaves free the higher officials whose
positions give them the actual power to coerce subordinates and
other citizens not employed by the Government. § 9a; 18 U.S.C.
61h.
MR JUSTICE DOUGLAS, dissenting in part.
I disagree with the Court on two of the four matters
decided.
First. There are twelve individual appellants here
asking for an adjudication of their rights. [
Footnote 3/1] The Court passes on the claim of only one
of them, Poole. It declines to pass on the claims of the other
eleven on the ground that
Page 330 U. S. 116
they do not present justiciable cases or controversies. With
this conclusion, I cannot agree.
It is clear that the declaratory judgment procedure is available
in the federal courts only in cases involving actual controversies,
and may not be used to obtain an advisory opinion in a controversy
not yet arisen.
Coffman v. Breeze Corporations,
323 U. S. 316,
323 U. S.
324-325, and cases cited. The requirement of an "actual
controversy," which is written into the statute (Judicial Code §
274d, 28 U.S.C. § 400) and has its roots in the Constitution
(Article III, § 2), seems to me to be fully met here.
What these appellants propose to do is plain enough. If they do
what they propose to do, it is clear that they will be discharged
from their positions. The analysis of the situation by the District
Court seems to me to be accurate and conclusive:
"The mere existence of the statute, saying that they shall not
engage in political activity, the penalty in the statute that they
shall be dismissed if they do, and the warning addressed to them by
the Civil Service Commission in their posters, certainly prevent
them from engaging in such activity if the statute is
constitutional. If the statute is unconstitutional, they are being
prevented from things which they have the right to do. If the
statute is constitutional, it is mandatory that they be dismissed
for doing such things. . . . The provisions of Civil Service Rule
XV that, in case of any violation of the Civil Service Act or Rules
or of any Executive Order or any regulation of the Commission, the
Commission shall certify the facts to the proper appointing officer
with specific instructions as to discipline or dismissal, is now
controlled by the provisions of the Hatch Act that, in case of
violation of Section 9(a) of that Act, dismissal is mandatory."
56 F.
Supp. 621, 624.
Page 330 U. S. 117
Their proposed conduct is sufficiently specific to show plainly
that it will violate the Act. The policy of the Commission and the
mandate of the Act leave no lingering doubt as to the consequences.
[
Footnote 3/2]
On a discharge, these employees would lose their jobs, their
seniority, and other civil service benefits. They could, of course,
sue in the Court of Claims.
United States v. Lovett,
328 U. S. 303. But
the remedy there is a money judgment, not a restoration to the
office formerly held. Of course, there might be other remedies
available in these situations to determine their rights to the
offices from which they are discharged.
See White v.
Berry, 171 U. S. 366,
171 U. S. 377.
But to require these employees first to suffer the hardship of a
discharge is not only to make them incur a penalty; it makes
inadequate, if not wholly illusory, any legal remedy which they may
have. [
Footnote 3/3] Men who must
sacrifice their means of livelihood in order to test their rights
to their jobs must either pursue prolonged and expensive litigation
as unemployed persons or pull up their roots, change their life
careers, and seek employment in other fields. At least to the
average person in the lower income groups, the burden of taking
that course
Page 330 U. S. 118
is irreparable injury, [
Footnote
3/4]
cf. Ex parte Young, 209 U.
S. 123,
209 U. S. 165,
no matter how exact the required showing.
Cf. Watson v.
Buck, 313 U. S. 387,
313 U. S.
400.
The declaratory judgment procedure may not, of course, be used
as a substitute for other equitable remedies to defeat a
legislative policy,
Great Lakes Co. v. Huffman,
319 U. S. 293,
319 U. S.
300-301, or to circumvent the necessity of exhausting
administrative remedies.
Order of Conductors v. Penn. R.
Co., 323 U. S. 166;
Macauley v. Waterman S.S. Corp., 327 U.
S. 540. But it fills a need, and serves a high function
previously "performed rather clumsily by our equitable proceedings
and inadequately by the law courts." H.R.Rep. No. 1264, 73d Cong.,
2d Sess., p. 2. [
Footnote 3/5]
Page 330 U. S. 119
The declaratory judgment procedure is designed "to declare
rights and other legal relations of any interested party . . . ,
whether or not further relief is or could be prayed." Judicial Code
§ 274d, 28 U.S.C. § 400. The fact that equity would not restrain a
wrongful removal of an officeholder, but would leave the
complainant to his legal remedies,
White v. Berry, supra,
is, therefore, immaterial. A judgment which, without more,
adjudicates the status of a person is permissible under the
Declaratory Judgment Act.
Perkins v. Elg, 307 U.
S. 325,
307 U. S.
349-350. The "declaration of a status was perhaps the
earliest exercise of this procedure." H.R.Rep. No. 1264, 73d Cong.,
2d Sess., p. 2. The right to hold an office or public position
against such threats is a common example of its use. [
Footnote 3/6] Borchard, Declaratory
Judgments (2d ed.), pp. 858
et seq. Declaratory relief is
the singular remedy available here to preserve the
status
quo while the constitutional rights of these appellants to
make these utterances and to engage in these activities are
determined. The threat against them is real, not fanciful,
immediate, not remote. The case is therefore an actual, not a
hypothetical, one. [
Footnote
3/7]
Page 330 U. S. 120
And the present case seems to me to be a good example of a
situation where uncertainty, peril, and insecurity result from
imminent and immediate threats to asserted rights.
Since the Court does not reach the constitutionality of the
claims of these eleven individual appellants, a discussion of them
would seem to be premature.
Second. Poole is not in the administrative category of
civil service. He is an industrial worker -- a roller in the mint,
a skilled laborer or artisan whose work or functions in no way
affect the policy of the agency, nor involve relationships with the
public. There is a marked difference in the British treatment of
administrative and industrial employees under civil service.
[
Footnote 3/8] And the difference
between the two is, for me, relevant to the problem we have
here.
Page 330 U. S. 121
The civil service system has been called "the one great
political invention" of nineteenth century democracy. [
Footnote 3/9] The intricacies of modern
government, the important and manifold tasks it performs, the skill
and expertise required, the vast discretionary powers vested in the
various agencies, and the impact of their work on individual
claimants, as well as on the general welfare, have made the
integrity, devotion, and skill of the men and women who compose the
system a matter of deep concern of many thoughtful people.
[
Footnote 3/10] Political
fortunes of parties will ebb and flow; top policy men in
administrations will come and go; new laws will be passed, and old
ones amended or repealed. But those who give continuity to
administration, those who contribute the basic skill and efficiency
to the daily work of government, and those on whom the new, as well
as the old, administration is dependent for smooth functioning of
the complicated machinery of modern government are the core of the
civil service. If they are beneficiaries of political patronage,
rather than professional careerists, serious results might follow
-- or so Congress could reasonably believe. Public confidence in
the objectivity and integrity of the civil service system might be
so weakened as to jeopardize the effectiveness of administrative
government. Or it might founder on the rocks of incompetency if
every change in political fortunes turned out the incumbents, broke
the continuity of administration, and thus interfered with the
development of expert management
Page 330 U. S. 122
at the technical levels. Or if the incumbents were political
adventurers or party workers, partisanship might color or corrupt
the processes of administration of law with which most of the
administrative agencies are entrusted.
The philosophy is to develop a civil service which can and will
serve loyally and equally well any political party which comes into
power. [
Footnote 3/11]
Those considerations might well apply to the entire group of
civil servants in the administrative category -- whether they are
those in the so-called expert classification or are clerks,
stenographers, and the like. They are the ones who have access to
the files, who meet the public, who arrange appointments, who
prepare the basic data on which policy decisions are made. Each may
be a tributary, though perhaps a small one, to the main stream
which we call policy making or administrative action. If the
element of partisanship enters into the official activities of any
member of the group, it may have its repercussions or effect
throughout the administrative process. Thus, in that type of case,
there would be much to support the view of the Court that Congress
need not undertake to draw the line to include only the more
important offices, but can take the precaution of protecting the
whole by insulating even the lowest echelon from partisan
activities.
So I think that, if the issues tendered by Poole were tendered
by an administrative employee, we would have quite a different
case. For Poole claims the right to work as a ward executive
committeeman,
i.e., as an officeholder in a political
party.
But Poole, being an industrial worker, is as remote from contact
with the public or from policymaking or from the functioning of the
administrative process as a charwoman.
Page 330 U. S. 123
The fact that he is in the classified civil service is not, I
think, relevant to the question of the degree to which his
political activities may be curtailed. He is in a position not
essentially different from one who works in the machine shop of a
railroad or steamship which the Government runs, or who rolls
aluminum in a manufacturing plant which the Government owns and
operates. Can all of those categories of industrial employees
constitutionally be insulated from American political life? If, at
some future time, it should come to pass in this country, as it has
in England, that a broad policy of state ownership of basic
industries is inaugurated, does this decision mean that all of the
hundreds of thousands of industrial workers affected could be
debarred from the normal political activity which is one of our
valued traditions?
The evils of the "spoils" system do not, of course, end with the
administrative group of civil servants. History shows that the
political regimentation of government industrial workers produces
its own crop of abuses. Those in top policy posts or others in
supervisory positions might seek to knit the industrial workers in
civil service into a political machine. As a weapon, they might
seek to make the advancement of industrial workers dependent on
political loyalty, on financial contributions, or on other partisan
efforts. Or political activities of these workers might take place
on government premises, on government time, or otherwise at
government expense. These are specific evils which would require a
specific treatment.
There is, however, no showing of any such abuse here. What Poole
did, he did on his own, without compulsion or suggestion or
invitation from any one higher up. Nor does it appear that what he
did was done on government time or on government premises.
Moreover, as MR. JUSTICE BLACK points out, laws can be drawn to
punish those who use such coercion.
See Ex parte Curtis,
106 U. S. 371.
Such activity is more than the exercise of
Page 330 U. S. 124
political prerogatives; it is the use of official power, as
well, and, hence, can be restrained or punished.
Cf. Bakery
Drivers Local v. Wohl, 315 U. S. 769,
315 U. S.
776-777;
Thomas v. Collins, 323 U.
S. 516,
323 U. S.
543-544.
The question is whether a permissible remedy is complete or
partial political sterilization of the industrial group. There is,
of course, the possibility of the mobilization, whether voluntary
or otherwise, of millions of employees of the Federal Government
and federally assisted state agencies for the purpose of
maintaining a particular party or group in power. The marked
increase in the number of government employees in recent years has
accentuated the problem. The difficulty lies in attempting to
preserve our democratic way of life by measures which deprive a
large segment of the population of all political rights except the
right to vote. Absent coercion, improper use of government position
or government funds, or neglect or inefficiency in the performance
of duty, federal employees have the same rights as other citizens
under the Constitution. They are not second-class citizens. If, in
the exercise of their rights, they find common political interests
and join with each other or other groups in what they conceive to
be their interests or the interests of the nation, they are simply
doing what any other group might do. In other situations where, the
balance was between constitutional rights of individuals and a
community interest which sought to qualify those rights, we have
insisted that the statute be "narrowly drawn to define and punish
specific conduct as constituting a clear and present danger to a
substantial interest" of government.
Cantwell v.
Connecticut, 310 U. S. 296,
310 U. S. 311.
And see Murdock v. Pennsylvania, 319 U.
S. 105,
319 U. S. 116;
Thornhill v. Alabama, 310 U. S. 88,
310 U. S.
104-105.
That seems to me the proper course to follow here. The
prohibition in § 9(a) of the Hatch Act against government employees
taking an "active part in political management
Page 330 U. S. 125
or in political campaigns" applies without discrimination to all
employees, whether industrial or administrative. The same is true
of the Civil Service Rules.
See Rules I, § 1, XV, 6 CFR
Cum.Supp., §§ 1.1, 15.1. But the supposed evils are both different
and narrower in case of industrial workers than they are in the
case of the administrative group. [
Footnote 3/12] The public interest in the political
activity of a machinist or elevator operator or charwoman is a
distinct and different problem. [
Footnote 3/13] In those cases, the public concern is in
the preservation of an unregimented industrial group, in a group
free from political pressures of superiors who use their official
power for a partisan purpose. Then, official power is misused,
Page 330 U. S. 126
perverted. The Government is corrupted by making its industrial
workers political captives, victims of bureaucratic power, agents
for perpetuating one party in power.
Offset against that public concern are the interests of the
employees in the exercise of cherished constitutional rights. The
nature and importance of those rights have been fully expounded in
MR. JUSTICE BLACK's opinion. If those rights are to be qualified by
the larger requirements of modern democratic government, the
restrictions should be narrowly and selectively drawn to define and
punish the specific conduct which constitutes a clear and present
danger to the operations of government. It seems plain to me that
that evil has its roots in the coercive activity of those in the
hierarchy who have the power to regiment the industrial group or
who undertake to do so. To sacrifice the political rights of the
industrial workers goes far beyond any demonstrated or demonstrable
need. Those rights are too basic and fundamental in our democratic
political society to be sacrificed or qualified for anything short
of a clear and present danger to the civil service system. No such
showing has been made in the case of these industrial workers
[
Footnote 3/14] which justifies
their political sterilization, as distinguished from selective
measures aimed at the coercive practices on which the spoils system
feeds.
[
Footnote 3/1]
Elkin, Senior Economic Statistician, Railroad Retirement Board;
Abelson, Associate Financial Analyst, Social Security Board;
Phillips, Labor Economist, War Shipping Administration; Mitchell,
Wage Analyst, National War Labor Board; Fagan, Area Director, War
Manpower Commission; Winegar, Senior Officer, Bureau of Prisons;
Hindin, Procedural Assistant, Federal Security Agency; Rieck, Stock
Clerk, Veterans Administration; Poole, Roller, United States Mint;
Shane, Lens Griffinder, Frankford Arsenal; Weber, Machinist
Specialist, Frankford Arsenal; Tempest, Electric Welder,
Philadelphia Navy Yard.
[
Footnote 3/2]
The case is, therefore, unlike those situations where the Court
refused to entertain actions for declaratory judgments, the state
of facts being hypothetical in the sense that the challenge was to
statutes which had not as yet been construed or their specific
application known.
See Electric Bond & S. Co. v. Securities
and Exchange Commission, 303 U. S. 419,
303 U. S. 443;
Alabama State Federation of Labor v. McAdory, 325 U.
S. 450.
[
Footnote 3/3]
Where the legal remedy is adequate, it may be the more
appropriate one. Thus, in
Coffman v. Breeze Corporations,
supra, declaratory relief was denied a licensor of a patent
who sued his licensee for an adjudication that the Royalty
Adjustment Act was unconstitutional, since it appeared that a suit
to recover royalties was an adequate legal remedy, and that the
constitutional issues could be litigated there.
[
Footnote 3/4]
If the prayer for declaratory relief be considered separately
from the prayer for an injunction, as it may be, allegations of
irreparable injury threatened are not required.
Aetna Life Ins.
Co. v. Haworth, 300 U. S. 227,
300 U. S.
241.
[
Footnote 3/5]
As stated in the Senate Report:
"The procedure has been especially useful in avoiding the
necessity, now so often present, of having to act at one's peril or
to act on one's own interpretation of his rights, or abandon one's
rights because of a fear of incurring damages. So now it is often
necessary, in the absence of the declaratory judgment procedure, to
violate or purport to violate a statute in order to obtain a
judicial determination of its meaning or validity. . . . So now it
is often necessary to break a contract or a lease, or act upon
one's own interpretation of his rights when disputed, in order to
present to the court a justifiable [
sic] controversy. In
jurisdictions having the declaratory judgment procedure, it is not
necessary to bring about such social and economic waste and
destruction in order to obtain a determination of one's rights . .
. There seems little question that, in many situations in the
conduct of business, serious disputes occur between parties where,
if there were a possibility of obtaining a judicial declaration of
rights in a formal action, much economic waste could be avoided,
and social peace promoted. Persons now often have to act at their
peril, a danger which could be frequently avoided by the ability to
sue for a declaratory judgment as to their rights or duties."
S.Rep. No. 1005, 73d Cong., 2d Sess., pp. 2-3.
And see
Borchard, Declaratory Judgments (2d ed.) p. 4.
[
Footnote 3/6]
The case is therefore unlike one where the moving party shows no
invasion of his legal rights, but only possible injury to the
public (
Perkins v. Lukens Steel Co., 310 U.
S. 113,
310 U. S.
125), or one where no judicial remedy for the alleged
wrong has been created.
General Committee v. Missouri-K.-T. R.
Co., 320 U. S. 323.
[
Footnote 3/7]
The following are cases in which the Court has allowed actions
for declaratory judgments to be entertained:
Aetna Life Ins.
Co. v. Haworth, supra, where an insured claimed and the
insurance company denied that he had become totally and permanently
disabled, and hence was relieved of the obligation to continue the
payment of premiums;
Currin v. Wallace, 306 U. S.
1, where tobacco warehousemen and auctioneers claimed
the Tobacco Inspection Act was unconstitutional;
Perkins v.
Elg, supra, where one claiming to be a citizen was threatened
with deportation as an alien, and had been declined a passport on
the same ground;
Maryland Casualty Co. v. Pacific Coal &
Oil Co., 312 U. S. 270,
where a third party was suing an insured, and the insurer sought a
judgment that it was not liable to defend the insured nor to
indemnify the insured if the third party recovered;
Altvater v.
Freeman, 319 U. S. 359,
where royalties were being demanded and paid under protest and by
reason of an injunction;
Mercoid Corp. v. Honeywell Co.,
320 U. S. 680,
where an alleged patent infringer sought a declaration of the
invalidity of the patent;
Tennessee Coal, I. & R. Co. v.
Muscoda Local, 321 U. S. 590,
where an employer sued representatives of its employees for an
adjudication of whether portal-to-portal pay was due under the Fair
Labor Standards Act;
Hillsborough v. Cromwell,
326 U. S. 620,
where a taxpayer sued in the federal court to have assessments
declared invalid on the ground that they violated the Federal
Constitution, the state remedy being inadequate to protect the
federal right;
Katzinger Co. v. Chicago Metallic Mfg. Co.,
329 U. S. 394,
where a licensee sought a declaration that he owed no royalties
because of the invalidity of the patent;
Order of Railway
Conductors v. Swan, 329 U. S. 520,
where it was sought to determine which division of the National
Railroad Adjustment Board had jurisdiction over railroad
yardmasters.
Cf. Railway Mail Assn. v. Corsi, 326 U. S.
88, where a labor membership corporation, which did not
admit negroes and was threatened with enforcement of a state
statute declaring that practice of labor organizations unlawful,
sued in a state court for an adjudication that that statute could
not constitutionally be applied to it.
[
Footnote 3/8]
Report, Committee on Parliamentary, etc., Candidature of Crown
Servants (1925), pp. 12, 13.
[
Footnote 3/9]
Wallas, Human Nature in Politics (2d ed.), p. 263.
[
Footnote 3/10]
Fish, The Civil Service and The Patronage (1905); Meriam, Public
Personnel Problems (1938), ch. XI; Mosher & Kingsley, Public
Personnel Administration (1941), ch. XVIII; Kingsley,
Representative Bureaucracy (1944), ch. X; Morstein Marx, Public
Management in the New Democracy (1940), ch. XIV; Field, Civil
Service Law (1939), p. 196; Dawson, The Principle of Official
Independence (1922), pp. 90
et seq.; Kaplan, Political
Neutrality of the Civil Service, 1 Public Personnel Rev. 10; Chen,
The Doctrine of Civil Service Neutrality in Party Conflicts in the
United States and Great Britain (1937).
[
Footnote 3/11]
See Chen,
op. cit. supra, 330 U.S.
75fn3/10|>note 10, ch. I; Report of President's Committee on
Civil Service Improvement, H.Doc. No. 118, 77th Cong., 1st Sess.,
ch. III.
[
Footnote 3/12]
See Morstein Marx,
op. cit. supra, note 10,
pp. 205-206; Report of the Committee on Parliamentary, etc.,
Candidature of Crown Servants,
supra, note 8, p. 32;
Finer, The British Civil Service (1937), pp. 203-204.
[
Footnote 3/13]
As stated in Morstein Marx,
op. cit. supra, 330 U.S.
75fn3/10|>note 10, pp. 205-206:
"The political neutrality of a postal clerk, of a conductor on
the city-owned subway system in New York, of a technician in the
Chicago sanitary district, or of an artisan in the labor class does
not have the same significance as the political neutrality of the
prominent section chiefs of the Department of State or the
political neutrality of an assistant to a commissioner in a New
York City department. No discussion of the problem which ignores
the
differences between categories of employees is
anything but an academic consideration of the problem. Top
officialdom has such marked opportunities of shaping policy that
its political behavior must be so neutral as to raise no question
of a divergence in point of view between it and the executive
officers of government. It is quite proper, therefore, to require
the most impeccable political neutrality from such officials. But
the average or typical civil servant has no more opportunity in the
sphere of policymaking than does the average citizen. He is
entrusted with a function ministerial in nature, a routine task
almost wholly unaffected by his political point of view. This
principle is recognized in the English rule that industrial workers
in government employment may stand for election, a privilege denied
administrative employees."
[
Footnote 3/14]
Whether the Act, being unconstitutional as applied to Poole,
could be separably applied to civil service employees in other
categories is a question I do not reach.