U.S. Supreme Court Harisiades v. Shaughnessy, 342
U.S. 580 (1952) Harisiades v.
Shaughnessy No. 43 Argued December 5,
1951 Decided March 10, 1952 342
U.S. 580 ast|>* 342
U.S. 580 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus 1. The Alien Registration Act of 1940, so far as it authorizes
the deportation of a legally resident alien because of membership
in the Communist Party, even though such membership terminated
before enactment of the Act, was within the power of Congress under
the Federal Constitution. Pp. 342 U. S.
581 -596.

															(a) The Act does not deprive the alien of liberty without due
process of law in violation of the Fifth Amendment. Pp. 342 U. S.
584 -591.

															(1) The power to deport aliens is inherent in every sovereign
state. Pp. 342 U. S.
587 -588.

															(2) The policy toward aliens is so exclusively entrusted to the
political branches of the Government as to be largely immune from
judicial inquiry or interference, and it cannot be said that the
power has been so unreasonably or harshly exercised by Congress in
this Act as to warrant judicial interference. Pp. 342 U. S.
588 -590.

															(3) The fact that the Act inflicts severe hardship on the
individuals affected does not render it violative of the Due
Process Clause. Pp. 342 U. S.
590 -591.

															(b) The Act does not abridge the aliens' freedoms of speech and
assembly in contravention of the First Amendment. Pp. 342 U. S.
591 -592.

															(c) The Act does not contravene the provision of Art. I, § 9 of
the Constitution forbidding ex post facto laws. Pp. 342 U. S.
593 -596.

															2. Procedural requirements of the Administrative Procedure Act
are not mandatory as to proceedings which were instituted before
the effective date of the Act. P. 583, n 4. Page 342 U. S. 581 3. One who consented to the same individual acting both as
presiding officer and examining officer in administrative
proceedings is without standing, on judicial review, to raise the
objection that he was thereby denied procedural due process. P.
583, n 4.

															187 F.2d 137 affirmed.

															The cases are stated in the opinion of the Court, pp. 342 U. S.
581 -584. The judgments are affirmed, p. 342 U. S.
596 .

															MR. JUSTICE JACKSON delivered the opinion of the Court.

															The ultimate question in these three cases is whether the United
States constitutionally may deport a legally resident alien because
of membership in the Communist Party which terminated before
enactment of the Alien Registration Act, 1940. [ Footnote 1 ]

															Harisiades, a Greek national, accompanied his father to the
United States in 1916, when thirteen years of age, and has resided
here since. He has taken a wife and sired two children, all
citizens. He joined the Communist Party in 1925, when it was known
as the Workers Party, and served as an organizer, Branch Executive
Committeman, Page 342 U. S. 582 secretary of its Greek Bureau, and editor of its paper "Empros."
The party discontinued his membership, along with that of other
aliens, in 1939, but he has continued association with members. He
was familiar with the principles and philosophy of the Communist
Party, and says he still believes in them. He disclaims personal
belief in use of force and violence, and asserts that the party
favored their use only in defense. A warrant for his deportation
because of his membership was issued in 1930, but was not served
until 1946. The delay was due to inability to locate him because of
his use of a number of aliases. After hearings, he was ordered
deported on the grounds that, after entry, he had been a member of
an organization which advocates overthrow of the Government by
force and violence and distributes printed matter so advocating. He
sought release by habeas corpus, which was denied by the District
Court. [ Footnote 2 ] The Court
of Appeals for the Second Circuit affirmed. [ Footnote 3 ]

															Mascitti, a citizen of Italy, came to this county in 1920 at the
age of sixteen. He married a resident alien and has one
American-born child. He was a member of the Young Workers Party,
the Workers Party, and the Communist Party between 1923 and 1929.
His testimony was that he knew the party advocated a proletarian
dictatorship, to be established by force and violence if the
capitalist class resisted. He heard some speakers advocate
violence, in which he says he did not personally believe, and he
was not clear as to the party policy. He resigned in 1929,
apparently because he lost sympathy with or interest in the party.
A warrant for his deportation issued, and was served in 1946. After
the usual administrative hearings, he was ordered deported on the
same grounds as Harisiades. He sought relief by declaratory Page 342 U. S. 583 judgment, which was denied without opinion by a three-judge
District Court for the District of Columbia. His case comes to this
Court by direct appeal.

															Mrs. Coleman, a native of Russia, was admitted to the United
States in 1914, when thirteen years of age. She married an American
citizen, and has three children, citizens by birth. She admits
being a member of the Communist Party for about a year, beginning
in 1919, and again from 1928 to 1930, and again from 1936 to 1937
or 1938. She held no office, and her activities were not
significant. She disavowed much knowledge of party principles and
program, claiming she joined each time because of some injustice
the party was then fighting. The reasons she gives for leaving the
party are her health and the party's discontinuance of alien
memberships. She has been ordered deported because, after entry,
she became a member of an organization advocating overthrow of the
Government by force and violence. She sought an injunction on
constitutional grounds, among others. Relief was denied, without
opinion, by a three-judge District Court for the District of
Columbia, and her case also comes here by direct appeal.

															Validity of the hearing procedures is questioned for
noncompliance with the Administrative Procedure Act, which we think
is here inapplicable. [ Footnote
4 ] Admittedly, each of these deportations is authorized and
required by the letter, spirit, and intention of the statute. But
the Act Page 342 U. S. 584 is assailed on three grounds: (1) that it deprives the aliens of
liberty without due process of law in violation of the Fifth
Amendment; (2) that it abridges their freedoms of speech and
assembly in contravention of the First Amendment, and (3) that it
is an ex post facto law which Congress is forbidden to
pass by Art. I, § 9, cl. 3 of the Constitution.

															We have in each case a finding, approved by the court below,
that the Communist Party, during the period of the alien's
membership, taught and advocated overthrow of the Government of the
United States by force and violence. Those findings are not
questioned here. I These aliens ask us to forbid their expulsion by a departure
from the long accepted application to such cases of the Fifth
Amendment provision that no person shall be deprived of life,
liberty, or property without due process of law. Their basic
contention is that admission for permanent residence confers a
"vested right" on the alien, equal to that of the citizen, to
remain within the country, and that the alien is entitled to
constitutional protection in that matter to the same extent as the
citizen. Their second line of defense is that, if any power to
deport domiciled aliens exists, it is so dispersed that the
judiciary must concur in the grounds for its exercise to the extent
of finding them reasonable. The argument goes on to the contention
that the grounds prescribed by the Act of 1940 bear no reasonable
relation to protection of legitimate interests of the United
States, and concludes that Page 342 U. S. 585 the Act should be declared invalid. Admittedly these
propositions are not founded in precedents of this Court.

															For over thirty years, each of these aliens has enjoyed such
advantages as accrue from residence here without renouncing his
foreign allegiance or formally acknowledging adherence to the
Constitution he now invokes. Each was admitted to the United
States, upon passing formidable exclusionary hurdles, in the hope
that, after what may be called a probationary period, he would
desire and be found desirable for citizenship. Each has been
offered naturalization, with all of the rights and privileges of
citizenship, conditioned only upon open and honest assumption of
undivided allegiance to our government. [ Footnote 5 ] But acceptance was and is not compulsory.
Each has been permitted to prolong his original nationality
indefinitely.

															So long as one thus perpetuates a dual status as an American
inhabitant but foreign citizen, he may derive advantages from two
sources of law -- American and international. He may claim
protection against our Government unavailable to the citizen. As an
alien, he retains a claim upon the state of his citizenship to
diplomatic intervention on his behalf, a patronage often of
considerable value. The state of origin of each of these aliens
could presently enter diplomatic remonstrance against these
deportations if they were inconsistent with international law, the
prevailing custom among nations, or their own practices.

															The alien retains immunities from burdens which the citizen must
shoulder. By withholding his allegiance from the United States, he
leaves outstanding a foreign Page 342 U. S. 586 call on his loyalties which international law not only permits
our Government to recognize, but commands it to respect. In
deference to it, certain dispensations from conscription for any
military service have been granted foreign nationals. [ Footnote 6 ] They cannot, consistently
with our international commitments, be compelled "to take part in
the operations of war directed against their own country."
[ Footnote 7 ] In addition to
such general immunities they may enjoy particular treaty
privileges. [ Footnote 8 ]

															Under our law, the alien in several respects stands on an equal
footing with citizens, [ Footnote
9 ] but, in others, has never been conceded legal parity with
the citizen. [ Footnote 10 ]
Most importantly, to protract this ambiguous status within the
country is not his right, but is a matter of permission and Page 342 U. S. 587 tolerance. The Government's power to terminate its hospitality
has been asserted and sustained by this Court since the question
first arose. [ Footnote
11 ]

															War, of course, is the most usual occasion for extensive resort
to the power. Though the resident alien may be personally loyal to
the United States, if his nation becomes our enemy, his allegiance
prevails over his personal preference, and makes him also our
enemy, liable to expulsion or internment, [ Footnote 12 ] and his property becomes subject to
seizure, and perhaps confiscation. [ Footnote 13 ] But it does not require war to bring the
power of deportation into existence, or to authorize its exercise.
Congressional apprehension of foreign or internal dangers short of
war may lead to its use. So long as the alien elects to continue
the ambiguity of his allegiance, his domicile here is held by a
precarious tenure.

															That aliens remain vulnerable to expulsion after long residence
is a practice that bristles with severities. But it is a weapon of
defense and reprisal confirmed by international law as a power
inherent in every sovereign Page 342 U. S. 588 state. [ Footnote 14 ] Such
is the traditional power of the Nation over the alien, and we leave
the law on the subject as we find it.

															This brings us to the alternative defense under the Due Process
Clause -- that, granting the power, it is so unreasonably and
harshly exercised by this enactment that it should be held
unconstitutional.

															In historical context, the Act before us stands out as an
extreme application of the expulsion power. There is no denying
that, as world convulsions have driven us toward a closed society,
the expulsion power has been exercised with increasing severity,
manifest in multiplication of grounds for deportation, in expanding
the subject classes from illegal entrants to legal residents, and
in greatly lengthening the period of residence after which one may
be expelled. [ Footnote 15 ]
This is said to have reached a point where it is the duty of this
Court to call a halt upon the political branches of the
Government.

															It is pertinent to observe that any policy toward aliens is
vitally and intricately interwoven with contemporaneous Page 342 U. S. 589 policies in regard to the conduct of foreign relations, the war
power, and the maintenance of a republican form of government. Such
matters are so exclusively entrusted to the political branches of
government as to be largely immune from judicial inquiry or
interference. [ Footnote
16 ]

															These restraints upon the judiciary, occasioned by different
events, do not control today's decision, but they Page 342 U. S. 590 are pertinent. It is not necessary, and probably not possible,
to delineate a fixed and precise line of separation in these
matters between political and judicial power under the
Constitution. Certainly, however, nothing in the structure of our
Government or the text of our Constitution would warrant judicial
review by standards which would require us to equate our political
judgment with that of Congress.

															Under the conditions which produced this Act, can we declare
that congressional alarm about a coalition of Communist power
without and Communist conspiracy within the United States is either
a fantasy or a pretense? This Act was approved by President
Roosevelt June 28, 1940, when a world war was threatening to
involve us, as soon it did. Communists in the United States were
exerting every effort to defeat and delay our preparations.
Certainly no responsible American would say that there were then or
are now no possible grounds on which Congress might believe that
Communists in our midst are inimical to our security.

															Congress received evidence that the Communist movement here has
been heavily laden with aliens, and that Soviet control of the
American Communist Party has been largely through alien Communists.
It would be easy for those of us who do not have security
responsibility to say that those who do are taking Communism too
seriously, and overestimating its danger. But we have an Act of one
Congress which, for a decade, subsequent Congresses have never
repealed, but have strengthened and extended. We, in our private
opinions, need not concur in Congress' policies to hold its
enactments constitutional. Judicially, we must tolerate what
personally we may regard as a legislative mistake.

															We are urged, because the policy inflicts severe and undoubted
hardship on affected individuals, to find a restraint Page 342 U. S. 591 in the Due Process Clause. But the Due Process Clause does not
shield the citizen from conscription and the consequent calamity of
being separated from family, friends, home, and business while he
is transported to foreign lands to stem the tide of Communism. If
Communist aggression creates such hardships for loyal citizens, it
is hard to find justification for holding that the Constitution
requires that its hardships must be spared the Communist alien.
When citizens raised the Constitution as a shield against expulsion
from their homes and places of business, the Court refused to find
hardship a cause for judicial intervention. [ Footnote 17 ]

															We think that, in the present state of the world, it would be
rash and irresponsible to reinterpret our fundamental law to deny
or qualify the Government's power of deportation. However desirable
worldwide amelioration of the lot of aliens, we think it is
peculiarly a subject for international diplomacy. It should not be
initiated by judicial decision which can only deprive our own
Government of a power of defense and reprisal without obtaining for
American citizens abroad any reciprocal privileges or immunities.
Reform in this field must be entrusted to the branches of the
Government in control of our international relations and
treatymaking powers.

															We hold that the Act is not invalid under the Due Process
Clause. These aliens are not entitled to judicial relief unless
some other constitutional limitation has been transgressed, to
which inquiry we turn. II The First Amendment is invoked as a barrier against this
enactment. The claim is that, in joining an organization advocating
overthrow of government by force and Page 342 U. S. 592 violence the alien has merely exercised freedoms of speech,
press and assembly which that Amendment guarantees to him.

															The assumption is that the First Amendment allows Congress to
make no distinction between advocating change in the existing order
by lawful elective processes and advocating change by force and
violence, that freedom for the one includes freedom for the other,
and that, when teaching of violence is denied, so is freedom of
speech.

															Our Constitution sought to leave no excuse for violent attack on
the status quo by providing a legal alternative -- attack
by ballot. To arm all men for orderly change, the Constitution put
in their hands a right to influence the electorate by press,
speech, and assembly. This means freedom to advocate or promote
Communism by means of the ballot box, but it does not include the
practice or incitement of violence. [ Footnote 18 ]

															True, it often is difficult to determine whether ambiguous
speech is advocacy of political methods or subtly shades into a
methodical but prudent incitement to violence. Communist
Governments avoid the inquiry by suppressing everything
distasteful. Some would have us avoid the difficulty by going to
the opposite extreme of permitting incitement to violent overthrow,
at least unless it seems certain to succeed immediately. We
apprehend that the Constitution enjoins upon us the duty, however
difficult, of distinguishing between the two. Different formulae
have been applied in different situations, and the test applicable
to the Communist Party has been stated too recently to make further
discussion at this time profitable. [ Footnote 19 ] We think the First Amendment does not
prevent the deportation of these aliens. Page 342 U. S. 593 III The remaining claim is that this Act conflicts with Art. I, § 9,
of the Constitution, forbidding ex post facto enactments.
An impression of retroactivity results from reading as a new and
isolated enactment what is actually a continuation of prior
legislation.

															During all the years since 1920, Congress has maintained a
standing admonition to aliens, on pain of deportation, not to
become members of any organization that advocates overthrow of the
United States Government by force and violence, a category
repeatedly held to include the Communist Party. These aliens
violated that prohibition, and incurred liability to deportation.
They were not caught unawares by a change of law. There can be no
contention that they were not adequately forewarned both that their
conduct was prohibited and of its consequences.

															In 1939, this Court decided Kessler v. Strecker, 307 U. S. 22 , in
which it was held that Congress, in the statute as it then stood,
had not clearly expressed an intent that Communist Party membership
remained cause for deportation after it ceased. [ Footnote 20 ] The Court concluded that, in
the absence of such expression, only contemporaneous membership
would authorize deportation.

															The reaction of the Communist Party was to drop aliens from
membership, at least in form, in order to immunize them from the
consequences of their party membership.

															The reaction of Congress was that the Court had misunderstood
its legislation. In the Act here before us, it supplied
unmistakable language that past violators of its prohibitions
continued to be deportable in spite of resignation or expulsion
from the party. It regarded the fact Page 342 U. S. 594 that an alien defied our laws to join the Communist Party as an
indication that he had developed little comprehension of the
principles or practice of representative government or else was
unwilling to abide by them.

															However, even if the Act were found to be retroactive, to strike
it down would require us to overrule the construction of the ex
post facto provision which has been followed by this Court
from earliest times. It always has been considered that that which
it forbids is penal legislation which imposes or increases criminal
punishment for conduct lawful previous to its enactment. [ Footnote 21 ] Deportation, however
severe its consequences, has been consistently classified as a
civil, rather than a criminal, procedure. [ Footnote 22 ] Both of these doctrines, as
original proposals, might be debatable, but both have been
considered closed for many years, and a body of statute and
decisional law has been built upon them. In Bugajewitz v.
Adams, 228 U. S. 585 , 228 U. S. 591 ,
Mr. Justice Holmes, for the Court, said:

															"It is thoroughly established that Congress has power to order
the deportation of aliens whose presence in the country it deems
hurtful. The determination by facts that might constitute a crime
under local law is not a conviction of crime, nor is the
deportation a punishment; it is simply a refusal by the government
to harbor persons whom it does not want. The coincidence of the
local penal law with the policy of Congress is an accident. . . .
The prohibition of ex post facto laws in article 1, § 9,
has no application . . . and with regard to the petitioner, it is
not necessary to construe the statute as having any retrospective
effect."

															Later, the Court said,

															"It is well settled that deportation, while it may be burdensome
and severe for Page 342 U. S. 595 the alien, is not a punishment. . . . The inhibition against the
passage of an ex post facto law by Congress in section 9
of article 1 of the Constitution applies only to criminal laws . .
. , and not to a deportation act like this. . . ." Mabler v. Eby, 264 U. S. 32 , 264 U. S.
39 .

															It is urged against the foregoing opinions that, in a few cases,
the ex post facto prohibition had been applied to what
appeared to be civil disabilities. Fletcher v.
Peck , 6 Cranch 87; Cummings
v. Missouri , 4 Wall. 277; Ex parte
Garland , 4 Wall. 333; Pierce v.
Carskadon , 16 Wall. 234. The Court has since
explained that those cases proceeded from the view that novel
disabilities there imposed upon citizens were really criminal
penalties for which civil form was a disguise. Burgess v.
Salmon, 97 U. S. 381 , 97 U. S. 385 . Those
cases were known to the Justices who promulgated the above-quoted
opinions, but have never been considered to govern deportation. The
facts of this case afford no basis for reconsidering or modifying
the long settled doctrine.

															It is contended that this policy allows no escape by
reformation. We are urged to apply some doctrine of atonement and
redemption. Congress might well have done so, but it is not for the
judiciary to usurp the function of granting absolution or pardon.
We cannot do so for deportable ex-convicts, even though they have
served a term of imprisonment calculated to bring about their
reformation.

															When the Communist Party, as a matter of party strategy,
formally expelled alien members en masse, it destroyed any
significance that discontinued membership might otherwise have as
indication of change of heart by the individual. Congress may have
believed that the party tactics threw upon the Government an almost
impossible burden if it attempted to separate those who sincerely
renounced Communist principles of force and violence from those who
left the party the better to serve Page 342 U. S. 596 it. Congress, exercising the wide discretion that it alone has
in these matters, declined to accept that as the Government's
burden.

															We find none of the constitutional objections to the Act well
founded. The judgments accordingly are Affirmed. MR. JUSTICE CLARK took no part in the consideration or decision
of these cases.

															* Together with No. 206, Mascitti v. McGrath, Attorney
General, on appeal from the United States District Court for
the District of Columbia, and No. 264, Coleman v. McGrath,
Attorney General, et al., also on appeal from the United
States District Court for the District of Columbia.

															[ Footnote 1 ]

															54 Stat. 670, 8 U.S.C. § 137.

															[ Footnote 2 ]

															90 F. Supp. 397.

															[ Footnote 3 ]

															187 F.2d 137.

															[ Footnote 4 ]

															Petitioner Harisiades and appellant Coleman contend that the
proceedings against them must be nullified for failure to conform
to the requirements of the Administrative Procedure Act, 60 Stat.
237, 5 U.S.C. § 1001 et seq. However, § 12 of the Act, 60
Stat. 244, 5 U.S.C. § 1011, provides that

															". . . no procedural requirement shall be mandatory as to any
agency proceeding initiated prior to the effective date of such
requirement."

															The proceedings against Harisiades and Coleman were instituted
before the effective date of the Act. Harisiades also contends
that, the Administrative Procedure Act aside, he was denied
procedural due process in that, in his 1946-1947 hearings, the same
individual acted both as presiding officer and examining officer.
However, it appears that the officer here performed both functions
with Harisiades' consent. He therefore has no standing to raise the
objection now.

															[ Footnote 5 ]

															40 Stat. 548, as amended, 8 U.S.C. § 732(a)(13), (16), (17),
(18), (19); 61 Stat. 122, as amended, 8 U.S.C. § 735. But a
certificate of naturalization is subject to revocation on the
ground of fraud or other illegality in the procurement. 54 Stat.
1158, 8 U.S.C. § 738; Knauer v. United States, 328 U. S. 654 .

															[ Footnote 6 ]

															§ 2 of the Selective Draft Act of 1917, 40 Stat. 76, as amended,
50 U.S.C. App. § 202; § 3 of the Selective Training and Service Act
of 1940, 54 Stat. 885, as amended, 50 U.S.C. App. § 303; § 4(a) of
the Selective Service Act of 1948, 62 Stat. 604, as amended, 50
U.S.C. App. § 454(a). Cf. Moser v. United States, 341 U. S. 41 .

															[ Footnote 7 ]

															Article 23, 1907 Hague Convention, Respecting the Laws and
Customs of War on Land, 36 Stat. 2301-2302.

															[ Footnote 8 ]

															Borchard, Diplomatic Protection of Citizens Abroad, 64.

															[ Footnote 9 ]

															This Court has held that the Constitution assures him a large
measure of equal economic opportunity, Yick Wo v. Hopkins, 118 U. S. 356 ; Truax v. Raich, 239 U. S. 33 ; he
may invoke the writ of habeas corpus to protect his personal
liberty, Nishimura Ekiu v. United States, 142 U.
S. 651 , 142 U. S. 660 ;
in criminal proceedings against him, he must be accorded the
protections of the Fifth and Sixth Amendments, Wong Wing v.
United States, 163 U. S. 228 ;
and, unless he is an enemy alien, his property cannot be taken
without just compensation. Russian Volunteer Fleet v. United
States, 282 U. S. 481 .

															[ Footnote 10 ]

															He cannot stand for election to many public offices. For
instance, Art. I, § 2, cl. 2, § 3, cl. 3, of the Constitution
respectively require that candidates for election to the House of
Representatives and Senate be citizens. See Borchard,
Diplomatic Protection of Citizens Abroad, 63. The states, to whom
is entrusted the authority to set qualifications of voters, for
most purposes require citizenship as a condition precedent to the
voting franchise. The alien's right to travel temporarily outside
the United States is subject to restrictions not applicable to
citizens. 43 Stat. 158, as amended, 8 U.S.C. § 210. If he is
arrested on a charge of entering the country illegally, the burden
is his to prove "his right to enter or remain" -- no presumptions
accrue in his favor by his presence here. 39 Stat. 889, as amended,
8 U.S.C. § 155(a).

															[ Footnote 11 ] Fong Yue Ting v. United States, 149 U.
S. 698 , 149 U. S. 707 , 149 U. S.
711 -714, 149 U. S. 730 ; Lem Moon Sing v. United States, 158 U.
S. 538 , 158 U. S.
545 -546; Li Sing v. United States, 180 U.
S. 486 , 180 U. S.
494 -495; Fok Yung Yo v. United States, 185 U. S. 296 , 185 U. S. 302 ; The Japanese Immigrant Case, 189 U. S.
86 , 189 U. S. 97 ; United States v. Ju Toy, 198 U. S. 253 , 198 U. S. 261 ; Zakonaite v. Wolf, 226 U. S. 272 , 226 U. S. 275 ; Chuoco Tiaco v. Forbes, 228 U. S. 549 , 228 U. S.
556 -557; Bugajewitz v. Adams, 228 U.
S. 585 , 228 U. S.
591 .

															[ Footnote 12 ]

															40 Stat. 531, 50 U.S.C. § 21.

															[ Footnote 13 ]

															40 Stat. 411, 50 U.S.C. App. § 2(c); 40 Stat. 415, 50 U.S.C.
App. § 6; 62 Stat. 1246, 50 U.S.C. App. § 39; Guessefeldt v.
McGrath, 342 U. S. 308 .

															[ Footnote 14 ]

															". . . [I]n strict law, a State can expel even domiciled aliens
without so much as giving the reasons, the refusal of the expelling
State to supply the reasons for expulsion to the home State of the
expelled alien does not constitute an illegal, but only a very
unfriendly, act."

															1 Oppenheim, International Law (3d ed., Roxburgh, 1920), 498-502
at 499. But cf. 1 Oppenheim, International Law (7th ed.,
Lauterpacht, 1948), 630-634 at 631. See also 4 Moore,
International Law Digest, 67-96, citing examples; Wheaton's
International Law (6th ed., Keith, 1929) 210-211; Fong Yue Ting
v. United States, 149 U. S. 698 .

															[ Footnote 15 ]

															An open door to the immigrant was the early federal policy. It
began to close in 1884, when Orientals were excluded. 23 Stat. 115.
Thereafter, Congress has intermittently added to the excluded
classes, and, as rejections at the border multiplied, illegal
entries increased. To combat these, recourse was had to deportation
in the Act of 1891, 26 Stat. 1086. However, that Act could be
applied to an illegal entrant only within one year after his entry.
Although that time limitation was subsequently extended, 32 Stat.
1218, 34 Stat. 904-905, until after the turn of the century,
expulsion was used only as an auxiliary remedy to enforce
exclusion.

															Congress, in 1907, provided for deportation of legally resident
aliens, but the statute reached only women found engaging in
prostitution, and deportation proceedings were authorized only
within three years after entry.

															From those early steps, the policy has been extended. In 1910,
new classes of resident aliens were listed for deportation,
including, for the first time, political offenders such as
anarchists and those believing in or advocating the overthrow of
the Government by force and violence. 36 Stat. 264. In 1917, aliens
who were found after entry to be advocating anarchist doctrines or
the overthrow of the Government by force and violence were made
subject to deportation, a five-year time limit being retained. 39
Stat. 889. A year later, deportability because of membership in
described subversive organizations was introduced. 40 Stat. 1012;
41 Stat. 1008. When this Court, in 1939, held that that Act reached
only aliens who were members when the proceedings against them were
instituted, Kessler v. Strecker, 307 U. S.
22 , Congress promptly enacted the statute before us,
making deportation mandatory for all aliens who at any time past
have been members of the proscribed organizations. In so doing it
also eliminated the time limit for institution of proceedings
thereunder. Alien Registration Act, 1940, 54 Stat. 670, 673.

															[ Footnote 16 ] United States v. Curtiss-Wright Export Corp., 299 U. S. 304 , 299 U. S.
319 -322; Chicago & Southern Air Lines, Inc. v.
Waterman Steamship Corp., 333 U. S. 103 , 333 U. S. 111 ;
U.S.Const. Art. IV, § 4; Luther v.
Borden , 7 How. 1, 48 U. S. 42 ; Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118 ; Marshall v. Dye, 231 U. S. 250 . In
respect to the war power over even citizens, see Kiyoshi
Hirabayashi v. United States, 320 U. S.
81 , 320 U. S. 92 ; Toyosaburo Korematsu v. United States, 323 U.
S. 214 , 323 U. S.
217 -218. That English courts also refuse to review
grounds for deportation orders appears from Rex v. Home
Secretary; Ex parte Bressler, 27 Cox Crim. Cases 655.

															[ Footnote 17 ] Kiyoshi Hirabayashi v. United States, 320 U. S.
81 ; Toyosaburo Korematsu v. United States, 323 U. S. 214 .

															[ Footnote 18 ] Dennis v. United States, 341 U.
S. 494 .

															[ Footnote 19 ] Ibid. [ Footnote 20 ]

															40 Stat. 1012.

															[ Footnote 21 ] Calder v. Bull , 3 Dall. 386, 3 U. S. 390 ; Johannessen v. United States, 225 U.
S. 227 , 225 U. S.
242 .

															[ Footnote 22 ] Fong Yue Ting v. United States, 149 U.
S. 698 , 149 U. S. 730 ; Bugajewitz v. Adams, 228 U. S. 585 , 228 U. S. 591 ; Bilokumsky v. Tod, 263 U. S. 149 , 263 U. S.
154 .

															MR. JUSTICE FRANKFURTER, concurring.

															It is not for this Court to reshape a world order based on
politically sovereign States. In such an international ordering of
the world, a national State implies a special relationship of one
body of people, i.e., citizens of that State, whereby the
citizens of each State are aliens in relation to every other State.
Ever since national States have come into being, the right of
people to enjoy the hospitality of a which they are not citizens
has been a matter of political determination by each State. (I put
to one side the oddities of dual citizenship.) Though, as a matter
of political outlook and economic need, this country has
traditionally welcomed aliens to come to its shores, it has done so
exclusively as a matter of political outlook and national
self-interest. This policy has been a political policy, belonging
to the political branch of the Government wholly outside the
concern and the competence of the Judiciary.

															Accordingly, when this policy changed and the political and
lawmaking branch of this Government, the Congress, decided to
restrict the right of immigration about seventy years ago, this
Court, thereupon and ever since, has recognized that the
determination of a selective and exclusionary immigration policy
was for the Congress, and not for the Judiciary. The conditions for
entry of every alien, Page 342 U. S. 597 the particular classes of aliens that shall be denied entry
altogether, the basis for determining such classification, the
right to terminate hospitality to aliens, the grounds on which such
determination shall be based, have been recognized as matters
solely for the responsibility of the Congress and wholly outside
the power of this Court to control.

															The Court's acknowledgment of the sole responsibility of
Congress for these matters has been made possible by Justices whose
cultural outlook, whose breadth of view and robust tolerance, were
not exceeded by those of Jefferson. In their personal views,
libertarians like Mr. Justice Holmes and Mr. Justice Brandeis
doubtless disapproved of some of these policies, departures as they
were from the best traditions of this country and based as they
have been in part on discredited racial theories or manipulation of
figures in formulating what is known as the quota system. But
whether immigration laws have been crude and cruel, whether they
may have reflected xenophobia in general or anti-Semitism or
anti-Catholicism, the responsibility belongs to Congress. Courts do
enforce the requirements imposed by Congress upon officials in
administering immigration laws, e.g., Kwock Jan Fat v.
White, 253 U. S. 454 , and
the requirement of Due Process may entail certain procedural
observances. E.g., Ng Fung Ho v. White, 259 U.
S. 276 . But the underlying policies of what classes of
aliens shall be allowed to enter and what classes of aliens shall
be allowed to stay are for Congress exclusively to determine, even
though such determination may be deemed to offend American
traditions and may, as has been the case, jeopardize peace.

															In recognizing this power and this responsibility of Congress,
one does not in the remotest degree align oneself with fears
unworthy of the American spirit, or with Page 342 U. S. 598 hostility to the bracing air of the free spirit. One merely
recognizes that the place to resist unwise or cruel legislation
touching aliens is the Congress, not this Court.

															I therefore join in the Court's opinion in these cases.

															MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting.

															There are two possible bases for sustaining this Act:

															(1) A person who was once a Communist is tainted for all time,
and forever dangerous to our society; or

															(2) Punishment through banishment from the country may be placed
upon an alien not for what he did, but for what his political views
once were.

															Each of these is foreign to our philosophy. We repudiate our
traditions of tolerance and our articles of faith based upon the
Bill of Rights when we bow to them by sustaining an Act of Congress
which has them as a foundation.

															The view that the power of Congress to deport aliens is
absolute, and may be exercised for any reason which Congress deems
appropriate, rests on Fong Yue Ting v. United States, 149 U. S. 698 ,
decided in 1893 by a six-to-three vote. That decision seems to me
to be inconsistent with the philosophy of constitutional law which
we have developed for the protection of resident aliens. We have
long held that a resident alien is a "person" within the meaning of
the Fifth and the Fourteenth Amendments. He therefore may not be
deprived either by the National Government or by any state of life,
liberty, or property without due process of law. Nor may he be
denied the equal protection of the laws. A state was not allowed to
exclude an alien from the laundry business because he was a
Chinese, [ Footnote 2/1 ] nor
discharge him from employment because Page 342 U. S. 599 he was not a citizen, [ Footnote
2/2 ] nor deprive him of the right to fish because he was a
Japanese ineligible to citizenship. [ Footnote 2/3 ] An alien's property (provided he is not an
enemy alien), may not be taken without just compensation. [ Footnote 2/4 ] He is entitled to habeas
corpus to test the legality of his restraint, [ Footnote 2/5 ] to the protection of the Fifth and
Sixth Amendments in criminal trials, [ Footnote 2/6 ] and to the right of free speech as
guaranteed by the First Amendment. [ Footnote 2/7 ]

															An alien who is assimilated in our society is treated as a
citizen so far as his property and his liberty are concerned. He
can live and work here and raise a family, secure in the personal
guarantees every resident has and safe from discriminations that
might be leveled against him because he was born abroad. Those
guarantees of liberty and livelihood are the essence of the freedom
which this country, from the beginning, has offered the people of
all lands. If those rights, great as they are, have constitutional
protection, I think the more important one -- the right to remain
here -- has a like dignity.

															The power of Congress to exclude, admit, or deport aliens flows
from sovereignty itself, and from the power "To establish an
uniform Rule of Naturalization." U.S.Const., Art. I, § 8, cl. 4.
The power of deportation is therefore an implied one. The right to
life and liberty is an express one. Why this implied power should
be given priority over the express guarantee of the Fifth Amendment
has never been satisfactorily answered. Mr. Justice Brewer's
dissent in Fong Yue Ting v. United States, supra, at 149 U. S.
737 -738, grows in power with the passing years:

															"It is said that the power here asserted is inherent in Page 342 U. S. 600 sovereignty. This doctrine of powers inherent in sovereignty is
one both indefinite and dangerous. Where are the limits to such
powers to be found, and by whom are they to be pronounced? Is it
within legislative capacity to declare the limits? If so, then the
mere assertion of an inherent power creates it, and despotism
exists. May the courts establish the boundaries? Whence do they
obtain the authority for this? Shall they look to the practices of
other nations of ascertain the limits? The governments of other
nations have elastic powers. Ours are fixed, and bounded by a
written constitution. The expulsion of a race may be within the
inherent powers of a despotism. History, before the adoption of
this constitution, was not destitute of examples of the exercise of
such a power, and its framers were familiar with history, and
wisely, as it seems to me, they gave to this government no general
power to banish. Banishment may be resorted to as punishment for
crime, but among the powers reserved to the people, and not
delegated to the government, is that of determining whether whole
classes in our midst shall, for no crime but that of their race and
birthplace, be driven from our territory."

															The right to be immune from arbitrary decrees of banishment
certainly may be more important to "liberty" than the civil rights
which all aliens enjoy when they reside here. Unless they are free
from arbitrary banishment, the "liberty" they enjoy while they live
here is indeed illusory. Banishment is punishment in the practical
sense. It may deprive a man and his family of all that makes life
worthwhile. Those who have their roots here have an important stake
in this country. Their plans for themselves and their hopes for
their children all depend on their right to stay. If they are
uprooted and sent to lands no longer known to them, no longer
hospitable, they become displaced, homeless people condemned to
bitterness and despair. Page 342 U. S. 601 This drastic step may at times be necessary in order to protect
the national interest. There may be occasions when the continued
presence of an alien, no matter how long he may have been here,
would be hostile to the safety or welfare of the Nation due to the
nature of his conduct. But, unless such condition is shown, I would
stay the hand of the Government and let those to whom we have
extended our hospitality and who have become members of our
communities remain here and enjoy the life and liberty which the
Constitution guarantees.

															Congress has not proceeded by that standard. It has ordered
these aliens deported not for what they are, but for what they once
were. Perhaps a hearing would show that they continue to be people
dangerous and hostile to us. But the principle of forgiveness and
the doctrine of redemption are too deep in our philosophy to admit
that there is no return for those who have once erred.

															[ Footnote 2/1 ] Yick Wo v. Hopkins, 118 U. S. 356 .

															[ Footnote 2/2 ] Truax v. Raich, 239 U. S. 33 .

															[ Footnote 2/3 ] Takahashi v. Fish and Game Commission, 334 U.
S. 410 .

															[ Footnote 2/4 ] Russian Volunteer Fleet v. United States, 282 U.
S. 481 .

															[ Footnote 2/5 ] Nishimura Ekiu v. United States, 142 U.
S. 651 , 142 U. S.
660 .

															[ Footnote 2/6 ] Wong Wing v. United States, 163 U.
S. 228 .

															[ Footnote 2/7 ] Bridges v. California, 314 U.
S. 252 .