U.S. Supreme Court Flemming v. Nestor, 363
U.S. 603 (1960) Flemming v. Nestor No. 54 Argued February 24,
1960 Decided June 20, 1960 363
U.S. 603 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA Syllabus Section 202 (n) of the Social Security Act, as amended, provides
for the termination of old-age benefits payable to an alien who,
after the date of its enactment (September 1, 1954), is deported
under § 241 (a) of the Immigration and Nationality Act on any one
of certain grounds specified in § 202(n). Appellee, an alien who
had become eligible for old-age benefits in 1955, was deported in
1956, pursuant to § 241(a) of the Immigration and Nationality Act,
for having been a member of the Communist Party from 1933 to 1939.
Since this was one of the grounds specified in § 202(n), his
old-age benefits were terminated shortly thereafter. He commenced
this action in a single-judge District Court, under § 205(g) of the
Social Security Act, to secure judicial review of that
administrative decision. The District Court held that § 202(n)
deprived appellee of an accrued property right and, therefore,
violated the Due Process Clause of the Fifth Amendment. Held: 1. Although this action drew into question the constitutionality
of § 202(n), it did not involve an injunction or otherwise
interdict the operation of the statutory scheme; 28 U.S.C. § 2282,
forbidding the issuance of an injunction restraining the
enforcement, operation or execution of an Act of Congress for
repugnance to the Constitution, except by a three-judge District
Court, was not applicable; and jurisdiction over the action was
properly exercised by the single-judge District Court. Pp. 363 U. S.
606 -608.

															2. A person covered by the Social Security Act has not such a
right in old-age benefit payments as would make every defeasance of
"accrued" interests violative of the Due Process Clause of the
Fifth Amendment. Pp. 363 U. S.
608 -611.

															(a) The noncontractual interest of an employee covered by the
Act cannot be soundly analogized to that of the holder of an
annuity, whose right to benefits are based on his contractual
premium payments. Pp. 363 U. S.
608 -610.

															(b) To engraft upon the Social Security System a concept of
"accrued property rights" would deprive it of the flexibility
and Page 363 U. S. 604 boldness in adjustment to ever-changing conditions which it
demands and which Congress probably had in mind when it expressly
reserved the right to alter, amend or repeal any provision of the
Act. Pp. 363 U. S.
610 -611.

															3. Section 202(n) of the Act cannot be condemned as so lacking
in rational justification as to offend due process. Pp. 363 U. S.
611 -612.

															4. Termination of appellee's benefits under § 202(n) does not
amount to punishing him without a trial, in violation of Art. III,
§2, Ch 3, of the Constitution or the Sixth Amendment; nor is §
202(n) a bill of attainder or ex post facto law, since its
purpose is not punitive. Pp. 363 U. S.
612 -621. 169 F.
Supp. 922 , reversed.

															MR. JUSTICE HARLAN delivered the opinion of the Court.

															From a decision of the District Court for the District of
Columbia holding § 202(n) of the Social Security Act (68 Stat.
1083, as amended, 42 U.S.C. § 402(n)) unconstitutional, the
Secretary of Health, Education, and Welfare takes this direct
appeal pursuant to 28 U.S.C. § 1252. The challenged section, set
forth in full in the margin, [ Footnote 1 ] provides for the termination of old-age,
survivor, Page 363 U. S. 605 and disability insurance benefits payable to, or in certain
cases in respect of, an alien individual who, after September 1,
1954 (the date of enactment of the section), is deported under §
241(a) of the Immigration and Nationality Act (8 U.S.C. § 1251(a))
on any one of certain grounds specified in § 202(n).

															Appellee, an alien, immigrated to this country from Bulgaria in
1913, and became eligible for old-age benefits in November, 1955.
In July, 1956, he was deported pursuant to § 241(a)(6)(C)(i) of the
Immigration and Nationality Act for having been a member of the
Communist Party from 1933 to 1939. This being one of the
benefit-termination deportation grounds specified in § 202(n),
appellee's benefits were terminated soon thereafter, and notice of
the termination was given to his wife, Page 363 U. S. 606 who had remained in this country. [ Footnote 2 ] Upon his failure to obtain administrative
reversal of the decision, appellee commenced this action in the
District Court, pursuant to § 205(g) of the Social Security Act (53
Stat. 1370, as amended 42 U.S.C. § 405(g)), to secure judicial
review. [ Footnote 3 ] On
cross-motions for summary judgment, the District Court ruled for
appellee, holding § 202(n) unconstitutional under the Due Process
Clause of the Fifth Amendment in that it deprived appellee of an
accrued property right. 169 F.
Supp. 922 . The Secretary prosecuted an appeal to this Court,
and, subject to a jurisdictional question hereinafter discussed, we
set the case down for plenary hearing. 360 U.S. 915.

															The preliminary jurisdictional question is whether 28 U.S.C. §
2282, is applicable, and therefore required that the case be heard
below before three judges, rather than by a single judge, as it
was. Section 2282 forbids the issuance, except by a three-judge
District Court, of Page 363 U. S. 607 any

															"interlocutory or permanent injunction restraining the
enforcement, operation or execution of any Act of Congress for
repugnance to the Constitution. . . ."

															Neither party requested a three-judge court below, and in this
Court both parties argue the inapplicability of § 2282. If the
provision applies, we cannot reach the merits, but must vacate the
judgment below and remand the case for consideration by a
three-judge District Court. See Federal Housing Administration
v. The Darlington, Inc., 352 U.S. 977.

															Under the decisions of this Court, this § 205(g) action could,
and did, draw in question the constitutionality of § 202(n). See, e.g., Anniston Mfg. Co. v. Davis, 301 U.
S. 337 , 301 U. S.
345 -346. However, the action did no more. It did not
seek affirmatively to interdict the operation of a statutory
scheme. A judgment for appellee would not put the operation of a
federal statute under the restraint of an equity decree; indeed,
apart from its effect under the doctrine of stare decisis, it would have no other result than to require the payment of
appellee's benefits. In these circumstances, we think that what was
said in Garment Workers' Union v. Donnelly Garment Co., 304 U. S. 243 ,
where this Court dealt with an analogous situation, is controlling
here:

															"[The predecessor of § 2282] does not provide for a case where
the validity of an act of Congress is merely drawn in question,
albeit that question be decided, but only for a case where there is
an application for an interlocutory or permanent injunction to
restrain the enforcement of an act of Congress. . . . Had Congress
intended the provision . . . , for three judges and direct appeal,
to apply whenever a question of the validity of an act of Congress
became involved, Congress would naturally have used the familiar
phrase 'drawn in question.' . . ." Id. at page 340 U. S.
250 . Page 363 U. S. 608 We hold that jurisdiction over the action was properly exercised
by the District Court, and therefore reach the merits. I We think that the District Court erred in holding that § 202(n)
deprived appellee of an "accrued property right." 169 F.
Supp. at 934 . Appellee's right to Social Security benefits
cannot properly be considered to have been of that order.

															The general purposes underlying the Social Security Act were
expounded by Mr. Justice Cardozo in Helvering v. Davis, 301 U. S. 619 , 301 U. S. 640 -
645. The issue here, however, requires some inquiry into the
statutory scheme by which those purposes are sought to be achieved.
Payments under the Act are based upon the wage earner's record of
earnings in employment or self-employment covered by the Act, and
take the form of old-age insurance and disability insurance
benefits inuring to the wage earner (known as the "primary
beneficiary"), and of benefits, including survivor benefits,
payable to named dependents ("secondary beneficiaries") of a
wage-earner. Broadly speaking, eligibility for benefits depends on
satisfying statutory conditions as to (1) employment in covered
employment or self-employment ( see § 210(a), 42 U.S.C. §
410(a)); (2) the requisite number of "quarters of coverage" -- i.e., three-month periods during which not less than a
stated sum was earned -- the number depending generally on age
( see §§ 213-215, 42 U.S.C. §§ 413-415); and (3) attainment
of the retirement age ( see § 216(a), 42 U.S.C. § 416(a)).
§ 202(a), 42 U.S.C. § 402(a). [ Footnote 4 ] Entitlement to benefits once gained Page 363 U. S. 609 is partially or totally lost if the beneficiary earns more than
a stated annual sum, unless he or she is at least 72 years old. §
203(b, e), 42 U.S.C. § 403(b, e). Of special importance in this
case is the fact that eligibility for benefits, and the amount of
such benefits, do not in any true sense depend on contribution to
the program through the payment of taxes, but rather on the
earnings record of the primary beneficiary.

															The program is financed through a payroll tax levied on
employees in covered employment, and on their employers. The tax
rate, which is a fixed percentage of the first $4,800 of employee
annual income, is set at a scale which will increase from year to
year, presumably to keep pace with rising benefit costs. I.R.C. of
1954, §§ 3101, 3111, 3121(a). The tax proceeds are paid into the
Treasury "as internal revenue collections," I.R.C., § 3501, and
each year an amount equal to the proceeds is appropriated to a
Trust Fund, from which benefits and the expenses of the program are
paid. § 201, 42 U.S.C. § 401. It was evidently contemplated that
receipts would greatly exceed disbursements in the early years of
operation of the system, and surplus funds are invested in
government obligations, and the income returned to the Trust Fund.
Thus, provision is made for expected increasing costs of the
program.

															The Social Security system may be accurately described as a form
of social insurance, enacted pursuant to Congress' power to "spend
money in aid of the general welfare,'" Helvering v. Davis,
supra, at 301 U. S. 640 ,
whereby persons gainfully employed, and those who employ them, are
taxed to permit the payment of benefits to the retired and
disabled, and their dependents. Plainly the expectation is that
many members of the present productive work force will in turn
become beneficiaries rather than supporters of the program. But
each worker's benefits, though flowing from the contributions he
made to the Page 363 U. S. 610 national economy while actively employed, are not dependent on
the degree to which he was called upon to support the system by
taxation. It is apparent that the noncontractual interest of an
employee covered by the Act cannot be soundly analogized to that of
the holder of an annuity, whose right to benefits is bottomed on
his contractual premium payments.

															It is hardly profitable to engage in conceptualizations
regarding "earned rights" and "gratuities." Cf. Lynch v. United
States, 292 U. S. 571 , 292 U. S.
576 -577. The "right" to Social Security benefits is in
one sense "earned," for the entire scheme rests on the legislative
judgment that those who in their productive years were functioning
members of the economy may justly call upon that economy, in their
later years, for protection from "the rigors of the poor house as
well as from the haunting fear that such a lot awaits them when
journey's end is near." Helvering v. Davis, supra, 301
U.S. at 301 U. S. 641 .
But the practical effectuation of that judgment has of necessity
called forth a highly complex and interrelated statutory structure.
Integrated treatment of the manifold specific problems presented by
the Social Security program demands more than a generalization.
That program was designed to function into the indefinite future,
and its specific provisions rest on predications as to expected
economic conditions which must inevitably prove less than wholly
accurate, and on judgments and preferences as to the proper
allocation of the Nation's resources which evolving economic and
social conditions will of necessity in some degree modify.

															To engraft upon the Social Security system a concept of "accrued
property rights" would deprive it of the flexibility and boldness
in adjustment to ever-changing conditions which it demands. See Wollenberg, Vested Rights in Social Security Benefits,
37 Ore.L.Rev. 299, 359. It was doubtless out of an awareness of the
need for such flexibility that Congress included in the original
Act, and Page 363 U. S. 611 has since retained, a clause expressly reserving to it "[t]he
right to alter, amend, or repeal any provision" of the Act. § 1104,
49 Stat. 648, 42 U.S.C. § 1304. That provision makes express what
is implicit in the institutional needs of the program. See Analysis of the Social Security System, Hearings before a
Subcommittee of the Committee on Ways and Means, House of
Representatives, 83d Cong., 1st Sess., pp. 920- 921. It was
pursuant to that provision that § 202(n) was enacted.

															We must conclude that a person covered by the Act has not such a
right in benefit payments as would make every defeasance of
"accrued" interests violative of the Due Process Clause of the
Fifth Amendment. II This is not to say, however, that Congress may exercise its
power to modify the statutory scheme free of all constitutional
restraint. The interest of a covered employee under the Act is of
sufficient substance to fall within the protection from arbitrary
governmental action afforded by the Due Process Clause. In judging
the permissibility of the cut-off provisions of § 202(n) from this
standpoint, it is not within our authority to determine whether the
Congressional judgment expressed in that section is sound or
equitable, or whether it comports well or ill with the purposes of
the Act.

															"Whether wisdom or unwisdom resides in the scheme of benefits
set forth in Title II it is not for us to say. The answer to such
inquiries must come from Congress, not the courts. Our concern
here, as often, is with power, not with wisdom." Helvering v. Davis, supra, at 301 U. S. 644 .
Particularly when we deal with a withholding of a noncontractual
benefit under a social welfare program such as this, we must
recognize that the Due Process Clause can be thought to interpose a
bar only if the statute manifests a patently arbitrary
classification, utterly lacking in rational justification. Page 363 U. S. 612 Such is not the case here. The fact of a beneficiary's residence
abroad -- in the case of a deportee, a presumably permanent
residence -- can be of obvious relevance to the question of
eligibility. One benefit which may be thought to accrue to the
economy from the Social Security system is the increased over-all
national purchasing power resulting from taxation of productive
elements of the economy to provide payments to the retired and
disabled, who might otherwise be destitute or nearly so, and who
would generally spend a comparatively large percentage of their
benefit payments. This advantage would be lost as to payments made
to one residing abroad. For these purposes, it is, of course,
constitutionally irrelevant whether this reasoning in fact underlay
the legislative decision, as it is irrelevant that the section does
not extend to all to whom the postulated rationale might in logic
apply. [ Footnote 5 ] See
United States v. Petrillo, 332 U. S. 1 , 332 U. S. 8 -9; Steward Machine Co. v. Davis, 301 U.
S. 548 , 301 U. S.
584 -585; cf. Carmichael v. Southern Coal & Coke
Co., 301 U. S. 495 , 301 U. S.
510 -513. Nor, apart from this, can it be deemed
irrational for Congress to have concluded that the public purse
should not be utilized to contribute to the support of those
deported on the grounds specified in the statute.

															We need go no further to find support for our conclusion that
this provision of the Act cannot be condemned as so lacking in
rational justification as to offend due process. III The remaining, and most insistently pressed, constitutional
objections rest upon Art. I, § 9, cl. 3, and Art. III, Page 363 U. S. 613 § 2, cl. 3, of the Constitution, and the Sixth Amendment.
[ Footnote 6 ] It is said that
the termination of appellee's benefits amounts to punishing him
without a judicial trial, see Wong Wing v. United States, 163 U. S. 228 ;
that the termination of benefits constitutes the imposition of
punishment by legislative act, rendering § 202(n) a bill of
attainder, see United States v. Lovett, 328 U.
S. 303 ; Cummings v.
Missouri , 4 Wall. 277; and that the punishment
exacted is imposed for past conduct not unlawful when engaged in,
thereby violating the constitutional prohibition on ex post
facto laws, See Ex parte
Garland , 4 Wall. 333. [ Footnote 7 ] Essential to the success of each of these
contentions is the validity of characterizing as "punishment" in
the constitutional sense the termination of benefits under §
202(n).

															In determining whether legislation which bases a
disqualification on the happening of a certain past event imposes a
punishment, the Court has sought to discern the objects on which
the enactment in question was Page 363 U. S. 614 focused. Where the source of legislative concern can be thought
to be the activity or status from which the individual is barred,
the disqualification is not punishment, even though it may bear
harshly upon one affected. The contrary is the case where the
statute in question is evidently aimed at the person or class of
persons disqualified. In the earliest case on which appellee
relies, a clergyman successfully challenged a state constitutional
provision barring from that profession -- and from many other
professions and offices -- all who would not swear that they had
never manifested and sympathy or support for the cause of the
Confederacy. Cummings v. Missouri, supra. The Court thus
described the aims of the challenged enactment:

															"The oath could not . . . have been required as a means of
ascertaining whether parties were qualified or not for their
respective callings or the trusts with which they were charged. It was required in order to reach the person, not the
calling. It was exacted, not from any notion that the several
acts designated indicated unfitness for the callings, but because
it was thought that the several acts deserved punishment. . .
." Id. at 71 U. S. 320 .
(Emphasis supplied.)

															Only the other day the governing inquiry was stated, in an
opinion joined by four members of the Court, in these terms:

															"The question in each case where unpleasant consequences are
brought to bear upon an individual for prior conduct is whether the
legislative aim was to punish that individual for past activity, or
whether the restriction of the individual comes about as a relevant
incident to a regulation of a present situation, such as the proper
qualifications for a profession." De Veau v. Braisted, 363 U. S. 144 , 363 U. S. 160 (plurality opinion). Page 363 U. S. 615 In Ex parte Garland, supra, where the Court struck down
an oath -- similar in content to that involved in Cummings -- required of attorneys seeking to practice before any federal
court, as also in Cummings, the finding of punitive intent
drew heavily on the Court's first-hand acquaintance with the events
and the mood of the then recent Civil War, and "the fierce passions
which that struggle aroused." Cummings v. Missouri, supra, at 71 U. S. 322 .
[ Footnote 8 ] Similarly, in United States v. Lovett, supra, where the Court
invalidated, as a bill of attainder, a statute forbidding --
subject to certain conditions -- the further payment of the
salaries of three named government employees, the determination
that a punishment had been imposed rested in large measure on the
specific Congressional history which the Court was at pains to
spell out in detail. See 328 U.S. at 328 U. S.
308 -312. Most recently, in Trop v. Dulles, 356 U. S. 86 , which
held unconstitutional a statute providing for the expatriation of
one who had been sentenced by a court-martial to dismissal or
dishonorable discharge for wartime desertion, the majority of the
Court characterized the statute as punitive. However, no single
opinion commanded the support of a majority. The plurality opinion
rested its determination, at least in part, on its inability to
discern any alternative purpose which the statute could be thought
to serve. Id. at 356 U. S. 97 .
The concurring opinion found in the specific historical evolution
of the provision in question compelling evidence of punitive
intent. Id. at 356 U. S.
107 -109. Page 363 U. S. 616 It is thus apparent that, though the governing criterion may be
readily stated, each case has turned on its own highly
particularized context. Where no persuasive showing of a purpose
"to reach the person, not the calling," Cummings v. Missouri,
supra, at 71 U. S. 320 ,
has been made, the Court has not hampered legislative regulation of
activities within its sphere of concern, despite the often-severe
effects such regulation has had on the persons subject to it.
[ Footnote 9 ] Thus, deportation
has been held to be not punishment, but an exercise of the plenary
owner of Congress to fix the conditions under which aliens are to
be permitted to enter and remain in this country. Fong Yue Ting
v. United States, 149 U. S. 698 , 149 U. S. 730 ; see Galvan v. Press, 347 U. S. 522 , 347 U. S.
530 -531. Similarly, the setting by a State of
qualifications for the practice of medicine, and their modification
from time to time, is an incident of the State's power to protect
the health and safety of its citizens, and its decision to bar from
practice persons who commit or have committed a felony is taken as
evidencing an intent to exercise that regulatory power, and not a
purpose to add to the punishment of ex-felons. Hawker v. New
York, 170 U. S. 189 . See De Veau v. Braisted, supra (regulation of crime on the
waterfront through disqualification of ex-felons from holding union
office). Cf. Helvering v. Mitchell, 303 U.
S. 391 , 303 U. S.
397 -401, holding that, with respect to deficiencies due
to fraud, a 50 percent addition to the tax imposed was not
punishment so as to prevent, upon principles of double jeopardy,
its assessment against one acquitted of tax evasion.

															Turning, then, to the particular statutory provision before us,
appellee cannot successfully contend that the language and
structure of § 202(n), or the nature of Page 363 U. S. 617 the deprivation, requires us to recognize a punitive design. Cf. Wong Wing v. United States, supra (imprisonment, at
hard labor up to one year, of person found to be unlawfully in the
country). Here, the sanction is the mere denial of a noncontractual
governmental benefit. No affirmative disability or restraint is
imposed, and certainly nothing approaching the "infamous
punishment" of imprisonment, as in Wong Wing, on which
great reliance is mistakenly placed. Moreover, for reasons already
given ( ante, pp. 363 U. S.
611 -612), it cannot be said, as was said of the statute
in Cummings v. Missouri, supra, at 71 U. S. 319 ; see Dent v. West Virginia, 129 U.
S. 114 , 129 U. S. 126 ,
that the disqualification of certain deportees from receipt of
Social Security benefits while they are not lawfully in this
country bears no rational connection to the purposes of the
legislation of which it is a part, and must, without more,
therefore be taken as evidencing a Congressional desire to punish.
Appellee argues, however, that the history and scope of § 202(n)
prove that no such postulated purpose can be thought to have
motivated the legislature, and that they persuasively show that a
punitive purpose in fact lay behind the statute. We do not
agree.

															We observe initially that only the clearest proof could suffice
to establish the unconstitutionality of a statute on such a ground.
Judicial inquiries into Congressional motives are, at best, a
hazardous matter, and when that inquiry seeks to go behind
objective manifestations, it becomes a dubious affair indeed.
Moreover, the presumption of constitutionality with which this
enactment, like any other, comes to us forbids us lightly to choose
that reading of the statute's setting which will invalidate it over
that which will save it.

															"[I]t is not on slight implication and vague conjecture that the
legislature is to be pronounced to have transcended its powers, and
its acts to be considered as void." Fletcher v.
Peck , 6 Cranch 87, 10 U. S.
128 . Page 363 U. S. 618 Section 202(n) was enacted as a small part of an extensive
revision of the Social Security program. The provision originated
in the House of Representatives. H.R. 9366, 83d Cong., 2d Sess., §
108. The discussion in the House Committee Report, H.R.Rep. No.
1698, 83d Cong., 2d Sess., pp. 5, 25, 77, does not express the
purpose of the statute. However, it does say that the termination
of benefits would apply to those persons who were "deported from
the United States because of illegal entry, conviction of a crime,
or subversive activity. . . ." Id. at 25. It was evidently
the thought that such was the scope of the statute resulting from
its application to deportation under the 14 named paragraphs of §
241(a) of the Immigration and Nationality Act. Id. at 77.
[ Footnote 10 ]

															The Senate Committee rejected the proposal, for the stated
reason that it had

															"not had an opportunity to give sufficient study to all the
possible implications of this provision, which involves termination
of benefit rights under the contributory program of old-age and
survivors insurance. . . ."

															S.Rep. No. 1987, 83d Cong., 2d Sess., p. 23; see also
id. at 76. However, in Conference, the proposal was restored
in modified form, [ Footnote
11 ] and, as modified, was enacted as § 202(n). See H.R.Conf.Rep. No. 2679, 83d Cong., 2d Sess., p. 18.

															Appellee argues that this history demonstrates that Congress was
not concerned with the fact of a beneficiary's Page 363 U. S. 619 deportation -- which it is claimed alone would justify this
legislation as being pursuant to a policy relevant to regulation of
the Social Security system -- but that it sought to reach certain
grounds for deportation, thus evidencing a punitive intent.
[ Footnote 12 ] It is
impossible to find in this meagre history the unmistakable evidence
of punitive intent which, under principles already discussed, is
required before a Congressional enactment of this kind may be
struck down. Even were that history to be taken as evidencing
Congress' concern with the grounds, rather than the fact, of
deportation, we do not think that this, standing alone, would
suffice to establish a punitive purpose. This would still be a far
cry from the situations involved in such cases as Cummings,
Wong Wing, and Garland ( see ante, p. 363 U. S.
617 ), and from that in Lovett, supra, where the
legislation was, on its face, aimed at particular individuals. The
legislative record, however, falls short of any persuasive showing
that Congress was in fact concerned alone with the grounds of
deportation. To be sure, Congress did not apply the termination Page 363 U. S. 620 provision to all deportees. However, it is evident that neither
did it rest the operation of the statute on the occurrence of the
underlying act. The fact of deportation itself remained an
essential condition for loss of benefits, and even if a beneficiary
were saved from deportation only through discretionary suspension
by the Attorney General under § 244 of the Immigration and
Nationality Act (66 Stat. 214, 8 U.S.C. § 1254), § 202(n) would not
reach him.

															Moreover, the grounds for deportation referred to in the
Committee Report embrace the great majority of those deported, as
is evident from an examination of the four omitted grounds,
summarized in the margin. [ Footnote 13 ] Inferences drawn from the omission of those
grounds cannot establish, to the degree of certainty required, that
Congressional concern was wholly with the acts leading to
deportation, and not with the fact of deportation. [ Footnote 14 ] To hold otherwise would be to
rest on the "slight implication and vague conjecture" against which
Chief Justice Marshall warned. Fletcher v. Peck, supra, at 10 U. S.
128 .

															The same answer must be made to arguments drawn from the failure
or Congress to apply § 202(n) to beneficiaries Page 363 U. S. 621 voluntarily residing abroad. But cf. § 202(t), ante, note 5 Congress
may have failed to consider such persons; or it may have thought
their number too slight, or the permanence of their voluntary
residence abroad too uncertain, to warrant application of the
statute to them, with its attendant administrative problems of
supervision and enforcement. Again, we cannot with confidence
reject all those alternatives which imaginativeness can bring to
mind, save that one which might require the invalidation of the
statute. Reversed. [ Footnote 1 ]

															Section 202(n) provides as follows:

															"(n)(1) If any individual is (after the date of enactment of
this subsection) deported under paragraph (1), (2), (4), (5), (6),
(7), (10), ( 11), (12), (14), (15), (16), (17), or (18) of section
241(a) of the Immigration and Nationality Act, then,
notwithstanding any other provisions of this title -- "

															"(A) no monthly benefit under this section or section 223 [42
U.S.C. § 423, relating to 'disability insurance benefits'] shall be
paid to such individual, on the basis of his wages and
self-employment income, for any month occurring (i) after the month
in which the Secretary is notified by the Attorney General that
such individual has been so deported, and (ii) before the month in
which such individual is thereafter lawfully admitted to the United
States for permanent residence,"

															"(B) if no benefit could be paid to such individual (or if no
benefit could be paid to him if he were alive) for any month by
reason of subparagraph (A), no monthly benefit under this section
shall be paid, on the basis of his wages and self-employment
income, for such month to any other person who is not a citizen of
the United States and is outside the United States for any part of
such month, and"

															"(C) no lump-sum death payment shall be made on the basis of
such individual's wages and self-employment income if he dies (i)
in or after the month in which such notice is received, and (ii)
before the month in which he is thereafter lawfully admitted to the
United States for permanent residence."

															"Section 203(b) and (c) of this Act shall not apply with respect
to any such individual for any month for which no monthly benefit
may be paid to him by reason of this paragraph."

															"(2) As soon as practicable after the deportation of any
individual under any of the paragraphs of section 241(a) of the
Immigration and Nationality Act enumerated in paragraph (1) in this
subsection, the Attorney General shall notify the Secretary of such
deportation."

															The provisions of § 241(a) of the Immigration and Nationality
Act are summarized in notes 10 13 post, pp. 618, 620.

															[ Footnote 2 ]

															Under paragraph (1)(B) of § 202(n) ( see note 1 ante ), appellee's wife,
because of her residence here, has remained eligible for benefits
payable to her as the wife of an insured individual. See §
202(b), 53 Stat. 1364, as amended, 42 U.S.C. § 402(b).

															[ Footnote 3 ]

															Section 205(g) provides as follows:

															"(g) Any individual, after any final decision of the Board made
after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of such decision by a civil
action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Board
may allow. . . . As part of its answer the Board shall file a
certified copy of the transcript of the record including the
evidence upon which the findings and decision complained of are
based. The court shall have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Board, with or without remanding the
cause for a rehearing. The findings of the Board as to any fact, if
supported by substantial evidence, shall be conclusive. . . . The
judgment of the court shall be final except that it shall be
subject to review in the same manner as a judgment in other civil
actions."

															[ Footnote 4 ]

															In addition, eligibility for disability insurance benefits is of
course subject to the further condition of the incurring of a
disability as defined in the Act. § 223, 42 U.S.C. § 423. Secondary
beneficiaries must meet the tests of family relationship to the
wage earner set forth in the Act. § 202(b-h), 42 U.S.C. §
402(b-h).

															[ Footnote 5 ]

															The Act does not provide for the termination of benefits of
nonresident citizens, or of some aliens who leave the country
voluntarily -- although many nonresident aliens do lose their
eligibility by virtue of the provisions of § 202(t), 70 Stat. 835,
as amended, 42 U.S.C. § 402(t) -- or of aliens deported pursuant to
paragraphs 3, 8, 9, or 13 of the 18 paragraphs of § 241(a) of the
Immigration and Nationality Act. See note 13 post. [ Footnote 6 ]

															Art. I, § 9, cl. 3:

															"No Bill of Attainder or ex post facto Law shall be passed."

															Art. III, § 2, cl. 3:

															"The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury; and such Trial shall be held in the State where the
said Crimes shall have been committed. . . ."

															Amend. VI:

															"In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defence."

															[ Footnote 7 ]

															Appellee also adds, but hardly argues, the contention that he
has been deprived of his rights under the First Amendment, since
the adverse consequences stemmed from "mere past membership" in the
Communist Party. This contention, which is no more than a
collateral attack on appellee's deportation, is not open to
him.

															[ Footnote 8 ] See also Pierce v.
Carskadon , 16 Wall. 234. A West Virginia statute
providing that a nonresident who had suffered a judgment in an
action commenced by attachment, but in which he had not been
personally served and did not appear, could within one year
petition the court for a reopening of the judgment and a trial on
the merits, was amended in 1865 so as to condition that right on
the taking of an exculpatory oath that the defendant had never
supported the Confederacy. On the authority of Cummings and Garland, the amendment was invalidated.

															[ Footnote 9 ]

															As prior decisions make clear, compare Ex parte Garland,
supra, with Hawker v. New York, supra, the severity of a
sanction is not determinative of its character as "punishment."

															[ Footnote 10 ]

															Paragraphs (1), (2), and (10) of § 241(a) relate to unlawful
entry, or entry not complying with certain conditions; paragraphs
(6) and ( 7) apply to "subversive" and related activities; the
remainder of the included paragraphs are concerned with convictions
of designated crimes, or the commission of acts related to them,
such as narcotics addiction or prostitution.

															[ Footnote 11 ]

															For example, under the House version termination of benefits of
a deportee would also have terminated benefits paid to secondary
beneficiaries based on the earning records of the deportee. The
Conference proposal limited this effect to secondary beneficiaries
who were nonresident aliens. See note 2 ante. [ Footnote 12 ]

															Appellee also relies on the juxtaposition of the proposed § 108
and certain other provisions, some of which were enacted and some
of which were not. This argument is too conjectural to warrant
discussion. In addition, reliance is placed on a letter written to
the Senate Finance Committee by appellant's predecessor in office,
opposing the enactment of what is now § 202(u) of the Act, 70 Stat.
838, 42 U.S.C. § 402(u), on the ground that the section was "in the
nature of a penalty and based on considerations foreign to the
objectives" of the program. Social Security Amendments of 1955,
Hearings before the Senate Committee on Finance, 84th Cong., 2d
Sess., p. 1319. The Secretary went on to say that

															"present law recognizes only three narrowly limited exceptions
(of which § 202(n) is one) to the basic principle that benefits are
paid without regard to the attitudes, opinions, behavior, or
personal characteristics of the individual. . . ."

															It should be observed, however, that the Secretary did not speak
of § 202(n) as a penalty, as he did of the proposed § 202(u). The
latter provision is concededly penal, and applies only pursuant to
a judgment of a court in a criminal case.

															[ Footnote 13 ]

															They are: (1) persons institutionalized at public expense within
five years after entry because of "mental disease, defect, or
deficiency" not shown to have arisen subsequent to admission (§
241(a)(3)); (2) persons becoming a public charge within five years
after entry from causes not shown to have arisen subsequent to
admission (§ 241(a)(8)); (3) persons admitted as nonimmigrants
( see § 101(a)(15), 66 Stat. 167, 8 U.S.C. § 1101(a)(15))
who fail to maintain, or comply with the conditions of, such status
(§ 241(a)(9)); (4) persons knowingly and for gain inducing or
aiding, prior to or within five years after entry, and other alien
to enter or attempt to enter unlawfully (§ 241(a)(13)).

															[ Footnote 14 ]

															Were we to engage in speculation, it would not be difficult to
conjecture that Congress may have been led to exclude these four
grounds of deportation out of compassionate or de minimis considerations.

															MR. JUSTICE BLACK, dissenting.

															For the reasons stated here and in the dissents of MR. JUSTICE
DOUGLAS and MR. JUSTICE BRENNAN, I agree with the District Court
that the United States is depriving appellee, Ephram Nestor, of his
statutory right to old-age benefits in violation of the United
States Constitution.

															Nestor came to this country from Bulgaria in 1913, and lived
here continuously for 43 years, until July, 1956. He was then
deported from this country for having been a Communist from 1933 to
1939. At that time, membership in the Communist Party as such was
not illegal, and was not even a statutory ground for deportation.
From December, 1936, to January, 1955, Nestor and his employers
made regular payments to the Government under the Federal Insurance
Contributions Act, 26 U.S.C. §§ 3101-3125. These funds went to a
special federal old-age and survivors insurance trust fund under 49
Stat. 622, 53 Stat. 1362, as amended, 42 U.S.C. § 401, in return
for which Nestor, like millions of others, expected to receive
payments when he reached the statutory age. In 1954, 15 years after
Nestor had last been a Communist, and 18 years after he began to
make payments into the old-age security fund, Congress passed a law
providing, among other things, that any person who had been
deported from Page 363 U. S. 622 this country because of past Communist membership under 66 Stat.
205, 8 U.S.C. § 1251(a)(6)(C), should be wholly cut off from any
benefits of the fund to which he had contributed under the law. 68
Stat. 1083, 42 U.S.C. § 402(n). After the Government deported
Nestor in 1956, it notified his wife, who had remained in this
country, that he was cut off, and no further payments would be made
to him. This action, it seems to me, takes Nestor's insurance
without just compensation, and in violation of the Due Process
Clause of the Fifth Amendment. Moreover, it imposes an ex post
facto law and bill of attainder by stamping him, without a
court trial, as unworthy to receive that for which he has paid and
which the Government promised to pay him. The fact that the Court
is sustaining this action indicates the extent to which people are
willing to go these days to overlook violations of the Constitution
perpetrated against anyone who has ever even innocently belonged to
the Communist Party. I In Lynch v. United States, 292 U.
S. 571 , this Court unanimously held that Congress was
without power to repudiate and abrogate in whole on in part its
promises to pay amounts claimed by soldiers under the War Risk
Insurance Act of 1917, §§ 400-405, 40 Stat. 409. This Court held
that such a repudiation was inconsistent with the provision of the
Fifth Amendment that

															"No person shall be . . . deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation."

															The Court today puts the Lynch case aside on the ground that "It
is hardly profitable to engage in conceptualizations regarding
"earned rights" and "gratuities." From this sound premise, the
Court goes on to say that, while "The "right" to Social Security
benefits is in one sense "earned," Page 363 U. S. 623 yet the Government's insurance scheme now before us rests not on
the idea of the contributors to the fund earning something, but
simply provides that they may "justly call" upon the Government

															"in their later years, for protection from 'the rigors of the
poor house as well as from the haunting fear that such a lot awaits
them when journey's end is near.'"

															These are nice words, but they cannot conceal the fact that they
simply tell the contributors to this insurance fund that, despite
their own and their employers' payments, the Government, in paying
the beneficiaries out of the fund, is merely giving them something
for nothing, and can stop doing so when it pleases. This, in my
judgment, reveals a complete misunderstanding of the purpose
Congress and the country had in passing that law. It was then
generally agreed, as it is today, that it is not desirable that
aged people think of the Government as giving them something for
nothing. An excellent statement of this view, quoted by MR. JUSTICE
DOUGLAS in another connection, was made by Senator George, the
Chairman of the Finance Committee when the Social Security Act was
passed, and one very familiar with the philosophy that brought it
about:

															"It comports better than any substitute we have discovered with
the American concept that free men want to earn their security and
not ask for doles -- that what is due as a matter of earned right
is far better than a gratuity. . . ."

															" * * * *" "Social Security is not a handout; it is not charity; it is not
relief. It is an earned right based upon the contributions and
earnings of the individual. As an earned right, the individual is
eligible to receive his benefit in dignity and self-respect."

															102 Cong.Rec. 15110. Page 363 U. S. 624 The people covered by this Act are now able to rely with
complete assurance on the fact that they will be compelled to
contribute regularly to this fund whenever each contribution falls
due. I believe they are entitled to rely with the same assurance on
getting the benefits they have paid for and have been promised,
when their disability or age makes their insurance payable under
the terms of the law. The Court did not permit the Government to
break its plighted faith with the soldiers in the Lynch case; it said the Constitution forbade such governmental conduct. I
would say precisely the same thing here.

															The Court consoles those whose insurance is taken away today,
and others who may suffer the same fate in the future, by saying
that a decision requiring the Social Security system to keep faith
"would deprive it of the flexibility and boldness in adjustment to
ever-changing conditions which it demands." People who pay premiums
for insurance usually think they are paying for insurance, not for
"flexibility and boldness." I cannot believe that any private
insurance company in America would be permitted to repudiate its
matured contracts with its policyholders who have regularly paid
all their premiums in reliance upon the good faith of the company.
It is true, as the Court says, that the original Act contained a
clause, still in force, that expressly reserves to Congress "[t]he
right to alter, amend, or repeal any provision" of the Act. § 1104,
49 Stat. 648, 42 U.S.C. § 1304. Congress, of course, properly
retained that power. It could repeal the Act so as to cease to
operate its old-age insurance activities for the future. This means
that it could stop covering new people, and even stop increasing
its obligations to its old contributors. But that is quite
different from disappointing the just expectations of the
contributors to the fund which the Government has compelled Page 363 U. S. 625 them and their employers to pay its Treasury. There is nothing
"conceptualistic" about saying, as this Court did in Lynch, that such a taking as this the Constitution
forbids. II In part II of its opinion, the Court throws out a line of hope
by its suggestion that, if Congress in the future cuts off some
other group from the benefits they have bought from the Government,
this Court might possibly hold that the future hypothetical act
violates the Due Process Clause. In doing so, it reads due process
as affording only minimal protection, and under this reading it
will protect all future groups from destruction of their rights
only if Congress "manifests a patently arbitrary classification,
utterly lacking in rational justification." The Due Process Clause,
so defined, provides little protection indeed compared with the
specific safeguards of the Constitution such as its prohibitions
against taking private property for a public use without just
compensation, passing ex post facto laws, and imposing
bills of attainder. I cannot agree, however, that the Due Process
Clause is properly interpreted when it is used to subordinate and
dilute the specific safeguards of the Bill of Rights, and when "due
process" itself becomes so wholly dependent upon this Court's idea
of what is "arbitrary" and "rational." See Levine v. United
States, 362 U. S. 610 , 362 U. S. 620 (dissenting opinion); Adamson v. California, 332 U. S.
46 , 332 U. S. 89 -92
(dissenting opinion); Rochin v. California, 342 U.
S. 165 , 342 U. S. 174 (concurring opinion). One reason for my belief in this respect is
that I agree with what is said in the Court's quotation from Helvering v. Davis, 301 U. S. 619 , 301 U. S.
644 :

															"Whether wisdom or unwisdom resides in the scheme of benefits
set forth in Title II it is not for Page 363 U. S. 626 us to say. The answer to such inquiries must come from Congress,
not the courts. Our concern here, as often, is with power, not with
wisdom."

															And yet, the Court's assumption of its power to hold Acts
unconstitutional because the Court thinks they are arbitrary and
irrational can be neither more nor less than a judicial foray into
the field of governmental policy. By the use of this due process
formula, the Court does not, as its proponents frequently proclaim,
abstain from interfering with the congressional policy. It actively
enters that field with no standards except its own conclusion as to
what is "arbitrary" and what is "rational." And this elastic
formula gives the Court a further power -- that of holding
legislative Acts constitutional on the ground that they are neither
arbitrary nor irrational, even though the Acts violate specific
Bill of Rights safeguards. See my dissent in Adamson
v. California, supra. Whether this Act had "rational
justification" was, in my judgment, for Congress; whether it
violates the Federal Constitution is for us to determine, unless we
are by circumlocution to abdicate the power that this Court has
been held to have ever since Marbury v.
Madison , 1 Cranch 137. III The Court, in part III of its opinion, holds that the 1954 Act
is not an ex post facto law or bill of attainder even
though it creates a class of deportees who cannot collect their
insurance benefits because they were once Communists at a time when
simply being a Communist was not illegal. The Court also puts great
emphasis on its belief that the Act here is not punishment.
Although not believing that the particular label "punishment" is of
decisive importance, I think the Act does impose punishment even in
a classic sense. The basic reason for Page 363 U. S. 627 Nestor's loss of his insurance payments is that he was once a
Communist. This man, now 69 years old, has been driven out of the
country where he has lived for 43 years to a land where he is
practically a stranger, under an Act authorizing his deportation
many years after his Communist membership. Cf. Galvan v.
Press, 347 U. S. 522 , 347 U. S. 532 , 347 U. S. 533 (dissenting opinions). Now a similar ex post facto law
deprives him of his insurance, which, while petty and insignificant
in amount to this great Government, may well be this exile's daily
bread, for the same reason and in accord with the general fashion
of the day -- that is, to punish in every way possible anyone who
ever made the mistake of being a Communist in this country or who
is supposed ever to have been associated with anyone who made that
mistake. See, e.g., Barenblatt v. United States, 360 U. S. 109 , and Uphaus v. Wyman, 360 U. S. 72 . In United States v. Lovett, 328 U. S. 303 , 328 U. S.
315 -316, we said:

															". . . legislative acts, no matter what their form, that apply
either to named individuals or to easily ascertainable members of a
group in such a way as to inflict punishment on them without a
judicial trial are bills of attainder prohibited by the
Constitution."

															Faithful observance of our holdings in that case, in Ex parte
Garland , 4 Wall. 333, and in Cummings
v. Missouri , 4 Wall. 277, would, in my judgment,
require us to hold that the 1954 Act is a bill of attainder. It is
a congressional enactment aimed at an easily ascertainable group;
it is certainly punishment in any normal sense of the word to take
away from any person the benefits of an insurance system into which
he and his employer have paid their moneys for almost two decades;
and it does all this without a trial according to due process of
law. It is true that the Lovett, Cummings, and Garland Court opinions were Page 363 U. S. 628 not unanimous, but they nonetheless represent positive
precedents on highly important questions of individual liberty
which should not be explained away with cobwebbery refinements. If
the Court is going to overrule these cases in whole or in part, and
adopt the views of previous dissenters, I believe it should be done
clearly and forthrightly.

															A basic constitutional infirmity of this Act, in my judgment, is
that it is a part of a pattern of laws all of which violate the
First Amendment out of fear that this country is in grave danger if
it lets a handful of Communist fanatics or some other extremist
group make their arguments and discuss their ideas. This fear, I
think, is baseless. It reflects a lack of faith in the sturdy
patriotism of our people and does not give to the world a true
picture of our abiding strength. It is an unworthy fear in a
country that has a Bill of Rights containing provisions for fair
trials, freedom of speech, press and religion, and other specific
safeguards designed to keep men free. I repeat once more that I
think this Nation's greatest security lies not in trusting to a
momentary majority of this Court's view at any particular time of
what is "patently arbitrary," but in wholehearted devotion to and
observance of our constitutional freedoms. See Wieman v.
Updegraff, 344 U. S. 183 , 344 U. S. 192 (concurring opinion).

															I would affirm the judgment of the District Court which held
that Nestor is constitutionally entitled to collect his
insurance.

															MR. JUSTICE DOUGLAS, dissenting.

															Appellee came to this country from Bulgaria in 1913, and was
employed, so as to be covered by the Social Security Act, from
December, 1936, to January, 1955 -- a period of 19 years. He became
eligible for retirement Page 363 U. S. 629 and for Social Security benefits in November, 1955, and was
awarded $55.60 per month. In July, 1956, he was deported for having
been a member of the Communist Party from 1933 to 1939. Pursuant to
a law, enacted September 1, 1954, he was thereupon denied payment
of further Social Security Benefits.

															This 1954 law seems to me to be a classic example of a bill of
attainder, which Art. I, § 9 of the Constitution prohibits Congress
from enacting. A bill of attainder is a legislative act which
inflicts punishment without a judicial trial. Cummings
v. Missouri , 4 Wall. 277, 71 U. S.
323 .

															In the old days, punishment was meted out to a creditor or rival
or enemy by sending him to the gallows. But, as recently stated by
Irving Brant, [ Footnote 2/1 ]

															". . . By smiting a man day after day with slanderous words, by
taking away his opportunity to earn a living, you can drain the
blood from his veins without even scratching his skin."

															"Today's bill of attainder is broader than the classic form, and
not so tall and sharp. There is mental in place of physical
torture, and confiscation of tomorrow's bread and butter instead of
yesterday's land and gold. What is perfectly clear is that hate,
fear and prejudice play the same role today in the destruction of
human rights in America that they did in England when a frenzied
mob of lords, judges, bishops and shoemakers turned the Titus Oates
blacklist into a hangman's record. Hate, jealousy and spite
continue to fill the legislative attainder lists just as they did
in the Irish Parliament of ex-King James. " Page 363 U. S. 630 Bills of attainder, when they imposed punishment less than
death, were bills of pains and penalties, and equally beyond the
constitutional power of Congress. Cummings v. Missouri,
supra, at 71 U. S.
323 .

															Punishment in the sense of a bill of attainder includes the
"deprivation or suspension of political or civil rights." Cummings v. Missouri, supra, at 71 U. S. 322 .
In that case, it was barring a priest from practicing his
profession. In Ex parte
Garland , 4 Wall. 333, it was excluding a man from
practicing law in the federal courts. In United States v.
Lovett, 328 U. S. 303 , it
was cutting off employees' compensation and barring them
permanently from government service. Cutting off a person's
livelihood by denying him accrued social benefits -- part of his
property interests -- is no less a punishment. Here, as in the
other cases cited, the penalty exacted has one of the classic
purposes of punishment [ Footnote
2/2 ] -- "to reprimand the wrongdoer, to deter others." Trop
v. Dulles, 356 U. S. 86 , 356 U. S. 96 Page 363 U. S. 631 .

															Social Security payments are not gratuities. They are products
of a contributory system, the funds being raised by payment from
employees and employers alike, or, in case of self-employed
persons, by the individual alone. See Social Security Board v.
Nierotko, 327 U. S. 358 , 327 U. S. 364 .
The funds are placed in the Federal Old-Age and Survivors Insurance
Trust Fund, 42 U.S.C. § 401(a); and only those who contribute to
the fund are entitled to its benefits, the amount of benefits being
related to the amount of contributions made. See Stark,
Social Security: Its Importance to Lawyers, 43 A.B.A.J. 319, 321
(1957). As the late Senator George, long Chairman of the Senate
Finance Committee and one of the authors of the Social Security
system, said:

															"There has developed through the years a feeling both in and out
of Congress that the contributory social insurance principle fits
our times -- that it serves a vital need that cannot be as well
served otherwise. It comports better than any substitute we have
discovered with the American concept that free men want to earn
their security and not ask for doles -- that what is due as a
matter of earned right is far better than a gratuity. . . ."

															" * * * *" "Social security is not a handout; it is not charity; it is not
relief. It is an earned right based upon the Page 363 U. S. 632 contributions and earnings of the individual. As an earned
right, the individual is eligible to receive his benefit in dignity
and self-respect."

															102 Cong.Rec. 15110.

															Social Security benefits have rightly come to be regarded as
basic financial protection against the hazards of old age and
disability. As stated in a recent House Report:

															"The old-age and survivors insurance system is the basic program
which provides protection for America's families against the loss
of earned income upon the retirement or death of the family
provider. The program provides benefits related to earned income
and such benefits are paid for by the contributions made with
respect to persons working in covered occupations."

															H.R.Rep. No. 1189, 84th Cong., 1st Sess. 2.

															Congress could provide that only people resident here could get
Social Security benefits. Yet both the House and the Senate
rejected any residence requirements. See H.R.Rep. No.
1698, 83d Cong., 2d Sess. 24-25; S.Rep. No. 1987, 83d Cong., 2d
Sess. 23. Congress concededly might amend the program to meet new
conditions. But may it take away Social Security benefits from one
person or from a group of persons for vindictive reasons? Could
Congress on deporting an alien for having been a Communist
confiscate his home, appropriate his savings accounts, and thus
send him out of the country penniless? I think not. Any such Act
would be a bill of attainder. The difference, as I see it, between
that case and this is one merely of degree. Social Security
benefits, made up in part of this alien's own earnings, are taken
from him because he once was a Communist.

															The view that § 202(n), with which we now deal, imposes a
penalty was taken by Secretary Folsom, appellant's Page 363 U. S. 633 predecessor, when opposing enlargement of the category of people
to be denied benefits of Social Security, e.g., those
convicted of treason and sedition. He said:

															"Because the deprivation of benefits as provided in the
amendment is in the nature of a penalty and based on considerations
foreign to the objectives and provisions of the old-age and
survivors insurance program, the amendment may well serve as a
precedent for extension of similar provisions to other public
programs and to other crimes which, while perhaps different in
degree, are difficult to distinguish in principle."

															"The present law recognizes only three narrowly limited
exceptions [ Footnote 2/3 ] to the
basic principle that benefits are paid without regard to the
attitudes, opinions, behavior, or personal characteristics of the
individual. . . ."

															Hearings Senate Finance Committee on Social Security Amendments
of 1955, 84th Cong., 2d Sess., 1319.

															The Committee Reports, though meagre, support Secretary Folsom
in that characterization of § 202(n). The House Report tersely
stated that termination of the benefits would apply to those
persons who were deported "because of illegal entry, conviction of
a crime, or subversive activity." H.R.Rep. No. 1698, 83d Cong., 2d
Sess. 25. The aim and purpose are clear -- to take away from a
person by legislative fiat property which he has accumulated
because he has acted in a certain way or embraced a certain
ideology. That is a modern version Page 363 U. S. 634 of the bill of attainder -- as plain, as direct, as effective as
those which religious passions once loosed in England and which
later were employed against the Tories here. [ Footnote 2/4 ] I would affirm this judgment.

															[ Footnote 2/1 ]

															Address entitled Bills of Attainder in 1787 and Today. Columbia
Law Review dinner 1954, published in 1959 by the Emergency Civil
Liberties Committee, under the title Congressional Investigations
and Bills of Attainder.

															[ Footnote 2/2 ]

															The broad sweep of the idea of punishment behind the concept of
the bill of attainder was stated as follows by Irving Brant, op. cit. supra, 363
U.S. 603 fn2/1|>note 1, 9-10:

															"In 1794, the American people were in a state of excitement
comparable to that which exists today. Supporters of the French
Revolution had organized the Democratic Societies -- blatantly
adopting that subversive title. Then the Whisky Rebellion exploded
in western Pennsylvania. The Democratic Societies were blamed. A
motion censuring the Societies was introduced in the House of
Representatives."

															"There, in 1794, you had the basic division in American thought
-- on one side, the doctrine of political liberty for everybody,
with collective security resting on the capacity of the people for
self-government; on the other side, the doctrine that the people
could not be trusted, and political liberty must be
restrained."

															"James Madison challenged this latter doctrine. The
investigative power of Congress over persons, he contended, was
limited to inquiry into the conduct of individuals in the public
service. 'Opinions,' he said, 'are not the subjects of
legislation.' Start criticizing people for abuse of their reserved
rights, and the censure might extend to freedom of speech and
press. What would be the effect on the people thus condemned? Said
Madison:"

															"It is in vain to say that this indiscriminate censure is no
punishment. . . . Is not this proposition, if voted, a bill of
attainder?"

															"Madison won his fight not because he called the resolution a
bill of attainder, but because it attainted too many men who were
going to vote in the next election. The definition, however, was
there -- a bill of attainder -- and the definition was given by the
foremost American authority on the principles of liberty and order
underlying our system of government."

															[ Footnote 2/3 ]

															The three exceptions referred to were (1) § 202(n); (2) Act of
September 1, 1954, 68 Stat. 1142, 5 U.S.C. §§ 2281-2288; (3)
Regulation of the Social Security Administration, 20 CFR § 403.409
-- denying dependent's benefits to a person found guilty of
felonious homicide of the insured worker.

															[ Footnote 2/4 ]

															Brandt, op. cit., supra, 363
U.S. 603 fn2/1|>note 1, states at p. 9:

															"What were the framers aiming at when they forbade bills of
attainder? They were, of course, guarding against the religious
passions that disgraced Christianity in Europe. But American bills
of attainder, just before 1787, were typically used by
Revolutionary assemblies to rid the states of British Loyalists. By
a curious coincidence, it was usually the Tory with a good farm who
was sent into exile, and all too often it was somebody who wanted
that farm who induced the legislature to attaint him. Patriotism
could serve as a cloak for greed as easily as religion did in that
Irish Parliament of James the Second."

															"But consider a case in which nothing could be said against the
motive. During the Revolution, Governor Patrick Henry induced the
Virginia legislature to pass a bill of attainder condemning Josiah
Phillips to death. He was a traitor, a murderer, a pirate and an
outlaw. When ratification of the new Constitution came before the
Virginia Convention, Henry inveighed against it because it
contained no Bill of Rights. Edmund Randolph taunted him with his
sponsorship of the Phillips bill of attainder. Henry then made the
blunder of defending it. The bill was warranted, he said, because
Phillips was no Socrates. That shocking defense of arbitrary
condemnation may have produced the small margin by which the
Constitution was ratified."

															MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS join, dissenting.

															When Nestor quit the Communist Party in 1939, his past
membership was not a ground for his deportation. Kessler v.
Strecker, 307 U. S. 22 . It
was not until a year later that past membership was made a specific
ground for deportation. [ Footnote
3/1 ] This past membership has cost Nestor Page 363 U. S. 635 dear. It brought him expulsion from the country after 43 years'
residence -- most of his life. Now more is exacted from him, for
after he had begun to receive benefits in 1955 -- having worked in
covered employment the required time and reached age 65 -- and
might anticipate receiving them the rest of his life, the benefits
were stopped pursuant to § 202(n) of the Amended Social Security
Act. [ Footnote 3/2 ] His predicament
is very real -- an aging man deprived of the means with which to
live after being separated from his family and exiled to life among
strangers in a land he quit 47 years ago. The common sense of it is
that he has been punished severely for his past conduct.

															Even the 1950 statute deporting aliens for past membership
raised serious questions in this Court whether the prohibition
against ex post facto laws was violated. In Galvan v.
Press, 347 U. S. 522 , 347 U. S. 531 ,
we said,

															"since the intrinsic consequences of deportation are so close to
punishment for crime, it might fairly be said also that the ex
post facto Clause, even though applicable only to punitive
legislation, should be applied to deportation."

															However, precedents which treat deportation not as punishment,
but as a permissible exercise of congressional power to enact the
conditions under which aliens may Page 363 U. S. 636 come to and remain in this country, governed the decision in
favor of the constitutionality of the statute.

															However, the Court cannot rest a decision that § 202(n) does not
impose punishment on Congress' power to regulate immigration. It
escapes the common sense conclusion that Congress has imposed
punishment by finding the requisite rational nexus to a granted
power in the supposed furtherance of the Social Security program
"enacted pursuant to Congress' power to spend money in aid of
the "general welfare."'" I do not understand the Court to deny
that, but for that connection, § 202(n) would impose punishment,
and not only offend the constitutional prohibition on ex post
facto laws, but also violate the constitutional guarantees
against imposition of punishment without a judicial trial. The Court's test of the constitutionality of § 202(n) is whether
the legislative concern underlying the statute was to regulate "the
activity or status from which the individual is barred," or whether
the statute "is evidently aimed at the person or class of persons
disqualified." It rejects the inference that the statute is "aimed
at the person or class of persons disqualified" by relying upon the
presumption of constitutionality. This presumption might be a basis
for sustaining the statute if, in fact, there were two opposing
inferences which could reasonably be drawn from the legislation,
one that it imposes punishment and the other that it is purposed to
further the administration of the Social Security program. The
Court, however, does not limit the presumption to that use. Rather,
the presumption becomes a complete substitute for any supportable
finding of a rational connection of § 202(n) with the Social
Security program. For me, it is not enough to state the test and
hold that the presumption alone satisfies it. I find it necessary
to examine the Act and its consequences to ascertain whether
there Page 363 U. S. 637 is ground for the inference of a congressional concern with the
administration of the Social Security program. Only after this
inquiry would I consider the application of the presumption.

															The Court seems to acknowledge that the statute bears harshly
upon the individual disqualified, but states that this is
permissible when a statute is enacted as a regulation of the
activity. But surely the harshness of the consequences is itself a
relevant consideration to the inquiry into the congressional
purpose. [ Footnote 3/3 ] Cf.
Trop v. Dulles, 356 U. S. 86 , 356 U. S. 110 (concurring opinion).

															It seems to me that the statute itself shows that the sole
legislative concern was with "the person or class of persons
disqualified." Congress did not disqualify for benefits all
beneficiaries residing, abroad or even all dependents residing,
abroad who are aliens. If that had been the case, I might agree
that Congress' concern would have been with "the activity or
status," and not with the "person or class of persons
disqualified." The scales would then be tipped toward the
conclusion that Congress desired to limit benefit payments to
beneficiaries residing in the United States so that the American
economy would be aided by expenditure of benefits here. Indeed, a
proposal along those lines was submitted to Congress in Page 363 U. S. 638 1954, at the same time § 202(n) was proposed, [ Footnote 3/4 ] and it was rejected. [ Footnote 3/5 ]

															Perhaps the Court's conclusion that regulation of "the activity
or status" was the congressional concern would be a fair appraisal
of the statute if Congress had terminated the benefits of all alien
beneficiaries who are deported. But that is not what Congress did.
Section 202(n) applies only to aliens deported on one or more of 14
of the 18 grounds for which aliens may be deported. [ Footnote 3/6 ]

															H.R.Rep. No. 1698, 83d Cong., 2d Sess. 25, 77, cited by the
Court, describes § 202(n) as including persons who were deported
"because of unlawful entry, conviction of a crime, or subversive
activity." The section, in addition, covers those deported for such
socially condemned acts as narcotic addiction or prostitution. The
common element of the 14 grounds is that the alien has been guilty
of some blameworthy conduct. In other words, Congress worked its
will only on aliens deported for conduct displeasing to the
lawmakers.

															This is plainly demonstrated by the remaining four grounds of
deportation, those which do not result in the cancellation of
benefits. [ Footnote 3/7 ] Two of
those four grounds cover persons who become public charges within
five years after entry for reasons which predated the entry. A
third ground covers the alien who fails to maintain his
nonimmigrant status. The fourth ground reaches the alien who, prior
to or within five years after entry, aids other aliens to enter the
country illegally.

															Those who are deported for becoming public charges clearly have
not, by modern standards, engaged in conduct worthy of censure. The
Government's suggestion Page 363 U. S. 639 that the reason for their exclusion from § 202(n) was an
unarticulated feeling of Congress that it would be unfair to the
"other country to deport such destitute persons without letting
them retain their modicum of social security benefits" appears, at
best, fanciful, especially since, by hypothesis, they are
deportable because the conditions which lead to their becoming
public charges existed prior to entry.

															The exclusion from the operation of § 202(n) of aliens deported
for failure to maintain nonimmigrant status rationally can be
explained, in the context of the whole statute, only as evidencing
that Congress considered that conduct less blameworthy. Certainly
the Government's suggestion that Congress may have thought it
unlikely that such persons would work sufficient time in covered
employment to become eligible for social Security benefits cannot
be the reason for this exclusion. For frequently the very act which
eventually results in the deportation of persons on that ground is
the securing of private employment. Finally, it is impossible to
reconcile the continuation of benefits to aliens who are deported
for aiding other aliens to enter the country illegally except upon
the ground that Congress felt that their conduct was less
reprehensible. Again, the Government's suggestion that the reason
might be Congress' belief that these aliens would not have worked
in covered employment must be rejected. Five years after entry
would be ample time within which to secure employment and qualify.
Moreover the same five-year limitation applies to several of the 14
grounds of deportation for which aliens are cut off from benefits
and the Government's argument would apply equally to them if that
in fact was the congressional reason.

															This appraisal of the distinctions drawn by Congress between
various kinds of conduct impels the conclusion, beyond
peradventure, that the distinctions can be Page 363 U. S. 640 understood only if the purpose of Congress was to strike at "the
person or class of persons disqualified." The Court inveighs
against invalidating a statute on "implication and vague
conjecture." Rather, I think the Court has strained to sustain the
statute on "implication and vague conjecture," in holding that the
congressional concern was "the activity or status from which the
individual is barred." Today's decision sanctions the use of the
spending power not to further the legitimate objectives of the
Social Security program, but to inflict hurt upon those who by
their conduct have incurred the displeasure of Congress. The
Framers ordained that even the worst of men should not be punished
for their past acts or for any conduct without adherence to the
procedural safeguards written into the Constitution. Today's
decision is to me a regretful retreat from Lovett,
Cummings, and Garland. Section 202(n) imposes punishment in violation of the
prohibition against ex post facto laws and without a
judicial trial. [ Footnote 3/8 ] I
therefore dissent.

															[ Footnote 3/1 ]

															The Alien Registration Act, 1940, 54 Stat. 673, made membership
in an organization which advocates the overthrow of the Government
of the United States by force or violence a ground for deportation
even though the membership was terminated prior to the passage of
that statute. See Harisiades v. Shaughnessy, 342 U.
S. 580 . Until the passage of the Internal Security Act
of 1950, 64 Stat. 1006, 1008, it was necessary for the Government
to prove in each case in which it sought to deport an alien because
of membership in the Communist Party that that organization in fact
advocated the violent overthrow of the Government. The 1950 Act
expressly made deportable aliens who at the time of entry, or at
any time thereafter were "members of or affiliated with . . . the
Communist Party of the United States." See Galvan v.
Press, 347 U. S. 522 , 347 U. S.
529 .

															[ Footnote 3/2 ]

															A comparable annuity was worth, at the time appellee's benefits
were canceled, approximately $6,000. To date, he has lost nearly
$2,500 in benefits.

															[ Footnote 3/3 ]

															The Court, recognizing that Cummings v.
Missouri , 4 Wall. 277, and Ex parte
Garland , 4 Wall. 333, strongly favor the conclusion
that § 202(n) was enacted with punitive intent, rejects the force
of those precedents as drawing "heavily on the Court's first-hand
acquaintance with the events and the mood of the then recent Civil
War, and the fierce passions which that struggle aroused.'"
This seems to me to say that the provision of § 202(n) which cuts
off benefits from aliens deported for past Communist Party
membership was not enacted in a similar atmosphere. Our judicial
detachment from the realities of the national scene should not
carry us so far. Our memory of the emotional climate stirred by the
question of communism in the early 1950's cannot be so
short. [ Footnote 3/4 ] See H.R.Rep. No. 1698, 83d Cong., 2d Sess. 24-25.

															[ Footnote 3/5 ] See S.Rep. No. 1987, 83d Cong., 2d Sess. 23;
H.R.Conf.Rep. No. 2679, 83d Cong., 2d Sess. 4.

															[ Footnote 3/6 ] See Court's opinion, ante, note 1 [ Footnote 3/7 ] See the Court's opinion, ante, note 13 [ Footnote 3/8 ]

															It is unnecessary for me to reach the question whether the
statute also constitutes a bill of attainder.