Joint Anti-Fascist Refugee Committee v. McGrath/Concurrence Frankfurter
Mr. Justice FRANKFURTER, concurring.

The more issues of law are inescapably entangled in political controversies, especially those that touch the passions of the day, the more the Court is under duty to dispose of a controversy within the narrowest confines that intellectual integrity permits. And so I sympathize with the endeavor of my brother BURTON to decide these cases on a ground as limited as that which has commended itself to him. Unfortunately, I am unable to read the pleadings as he does. Therefore I must face up to larger issues. But in a case raising delicate constitutional questions it is particularly incumbent first to satisfy the threshold inquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination'? Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 464, 81 L.Ed. 617.

Limitation on 'the judicial Power of the United States' is expressed by the requirement that a litigant must have 'standing to sue' or, more comprehensively, that a federal court may entertain a controversy only if it is 'justiciable.' Both characterizations mean that a court will not a decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was, generally speaking, the business of the Colonial courts and the courts of Westminster when the Constitution was framed. The jurisdiction of the federal courts can be invoked only under circumstances which to the expert feel of lawyers constitute a 'case or controversy.' The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously. See the course of decisions beginning with Hayburn's Case, 2 Dall. 409, 1 L.Ed. 436, through Parker v. Los Angeles County, 338 U.S. 327, 70 S.Ct. 161, 94 L.Ed. 144. These generalities have had myriad applications. Each application, even to a situation not directly pertinent to what is before us, reflects considerations relevant to decision here. I shall confine my inquiry, however, by limiting it to suits seeking relief from governmental action.

(1) The simplest application of the concept of 'standing' is to situations in which there is no real controversy between the parties. Regard for the separation of powers, see Muskrat v. United States, 219 U.S. 346, 31 S.Ct. 250, 55 L.Ed. 246, and for the importance to correct decision of adequate presentation of issues by clashing interests, see Chicago & G.T.R. Co. v. Wellman, 143 U.S. 339, 12 S.Ct. 400, 36 L.Ed. 176, restricts the courts of the United States to issues presented in an adversary manner. A petitioner does not have standing to sue unless he is 'interested in, and affected adversely by, the decision' of which he seeks review. His 'interest must be of a personal, and not of an official, nature.' Braxton County Court v. State of West Virginia ex rel. Dillon, 208 U.S. 192, 197, 28 S.Ct. 275, 276, 52 L.Ed. 450; see also Commonwealth of Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. The interest must not be wholly negligible, as that of a taxpayer of the Federal Government is considered to be, Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; cf. Crampton v. Zabriskie, 101 U.S. 601, 25 L.Ed. 1070. A litigant must show more than that 'he suffers in some indefinite way in common with people generally.' Frothingham v. Mellon, supra, 262 U.S. at page 488, 43 S.Ct. at page 601.

Adverse personal interest, even of such an indirect sort as arises from competition, is ordinarily sufficient to meet constitutional standards of justiciability. The courts may therefore by statute be given jurisdiction over claims based on such interests. Federal Communications Commission v. Sanders Bros. Radio Station, 309 U.S. 470, 642, 60 S.Ct. 693, 84 L.Ed. 869, 1037; cf. Interstate Commerce Comm. v. Oregon-Washington R. & Nav. Co., 288 U.S. 14, 53 S.Ct. 266, 77 L.Ed. 588.

(2) To require a court to intervene in the absence of a statute, however, either on constitutional grounds or in the exercise of inherent equitable powers, something more than adverse personal interest is needed. This additional element is usually defined in terms which assume the answer. It is said that the injury must be 'a wrong which directly results in the violation of a legal right.' Alabama Power Co. v. Ickes, 302 U.S. 464, 479, 58 S.Ct. 300, 303, 82 L.Ed. 374. Or that the controversy 'must be definite and concrete, touching the legal relations of parties having adverse legal interests.' Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, supra, 300 U.S. at pages 240-241, 57 S.Ct. at page 464. These terms have meaning only when contained by the facts to which they have been applied. In seeking to determine whether in the case before us the standards they reflect are met, therefore, we must go to the decisions. They show that the existence of 'legal' injury has turned on the answer to one or more of these questions: (a) Will the action challenged at any time substantially affect the 'legal' interests of any person? (b) Does the action challenged affect the petitioner with sufficient 'directness'? (c) Is the action challenged sufficiently 'final'? Since each of these questions itself contains a word of art, we must look to experience to find their meaning.

(a) Will the action challenged at any time substantially affect the 'legal' interests of any person? A litigant ordinarily has standing to challenge governmental action of a sort that, if taken by a private person, would create a right of action cognizable by the courts. United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171.  Or standing may be based on an interest created by the Constitution or a statute. E.g., Parker v. Fleming, 329 U.S. 531, 67 S.Ct. 463, 91 L.Ed. 479; Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385; cf. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939. But if no comparable common-law right exists and no such constitutional or statutory interest has been created, relief is not available judicially. Thus, at least unless capricious discrimination is asserted, there is no protected interest in contracting with the Government. A litigant therefore has no standing to object that an official has misinterpreted his instructions in requiring a particular clause to be included in a contract. Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108. Similarly, a determination whether the Government is within its powers in distributing electric power may be of enormous financial consequence to a private power company, but it has no standing to raise the issue. Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543; cf. Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374. The common law does not recognize an interest in freedom from honest competition; a court will give protection from competition by the Government, therefore, only when the Constitution or a statute creates such a right.

(b) Does the action challenged affect petioner with sufficient 'directness'? Frequently governmental action directly affects the legal interests of some person, and causes only a consequential detriment to another. Whether the person consequentially harmed can challenge the action is said to depend on the 'directness' of the impact of the action on him. A shipper has no standing to attack a rate not applicable to him but merely affecting his previous competitive advantage over shippers subject to the rate. Edward Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 148, 44 S.Ct. 72, 73, 68 L.Ed. 216; Alexander Sprunt & Son v. United States, 281 U.S. 249, 255, 257, 50 S.Ct. 315, 318, 74 L.Ed. 832. When those consequentially affected may resort to an administrative agency charged with their protection, courts are especially reluctant to give them 'standing' to claim judicial review. See City of Atlanta v. Ickes, 308 U.S. 517, 60 S.Ct. 170, 84 L.Ed. 440; cf. Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694. 

But it is not always true that only the person immediately affected can challenge the action. The fact that an advantageous relationship is terminable at will does not prevent a litigant from asserting that improper interference with it gives him 'standing' to assert a right of action. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S.Ct. 65, 62 L.Ed. 260. On this principle in alien employee was allowed to challenge a State law requiring his employer to discharge all but a specified proportion of alien employees, Truax v. Raich, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, and a private school to enjoin enforcement of a statute requiring parents to send their children to public schools, Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070. The likelihood that the interests of the petitioner will be adequately protected by the person directly affected is a relevant consideration, compare Columbia Broadcasting System v. United States, 316 U.S. 407, 423 424, 62 S.Ct. 1194, 1203, 86 L.Ed. 1563, with Schenley Distillers Corp. v. United States, 326 U.S. 432, 435, 66 S.Ct. 247, 248, 90 L.Ed. 181, as is, probably, the nature of the relationship involved. See Davis & Farnum Mfg. Co. v. City of Los Angeles, 189 U.S. 207, 220, 23 S.Ct. 498, 501, 47 L.Ed. 778; Truax v. Raich, 239 U.S. 33, 38-39, 36 S.Ct. 7, 9, 60 L.Ed. 131. 

(c) Is the action challenged sufficiently final? Although a litigant is the person most directly affected by the challenged action of the Government, he may not have 'standing' to raise his objections in a court if the action has not, as it were, come to rest.  Courts do not review issues, especially constitutional issues, until they have to. See Parker v. Los Angeles County, supra, and see Brandeis, J., concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688. In part, this practice reflects the tradition that courts, having final power, can exercise it most wisely by restricting themselves to situations in which decision is necessary. In part, it is founded on the practical wisdom of not coming prematurely or needlessly in conflict with the executive or legislature. See Rochester Telephone Corp. v. United States, 307 U.S. 125, 130-131, 59 S.Ct. 754, 757, 83 L.Ed. 1147. Controversies, therefore, are often held nonjusticiable '(w)here the action sought to be reviewed may have the effect of forbidding or compelling conduct on the part of the person seeking to review it, but only if some further action is taken by the Commission.' Rochester Telephone Corp. v. United States, supra, 307 U.S. at page 129, 59 S.Ct. at page 756; and see Chicago & Southern Air Lines v. Waterman S.S.C.orp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568. There is no 'standing' to challenge a preliminary administrative determination, although the determination itself causes some detriment to the litigant. United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed. 651; cf. Ex parte Williams, 277 U.S. 267, 48 S.Ct. 523, 72 L.Ed. 877. Nor does the reservation of authority to act to a petitioner's detriment entitle him to challenge the reservation when it is conceded that the authority will be exercised only on a contingency which appears not to be imminent. Eccles v. Peoples Bank of Lakewood Village, Cal., 333 U.S. 426, 68 S.Ct. 641, 92 L.Ed. 784. Lack of finality also explains the decision in Standard Computing Scale Co. v. Farrell, 249 U.S. 571, 39 S.Ct. 380, 63 L.Ed. 780. There the Court was faced by an advisory 'specification' of characteristics desirable in ordinary measuring scales. The specification could be enforced only by independent local officers' withholding their approval of the equipment. Justiciability was denied. 

'Finality' is not, however, a principle inflexibly applied. If the ultimate impact of the challenged action on the petitioner is sufficiently probable and not too distant, and if the procedure by which that ultimate action may be questioned is too onerous or hazardous, 'standing' is given to challenge the action at a preliminary stage. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Santa Fe Pac, R. Co. v. Lane, 244 U.S. 492, 37 S.Ct. 714, 61 L.Ed. 1275; see Waite v. Macy, 246 U.S. 606, 38 S.Ct. 395, 62 L.Ed. 892. It is well settled that equity will enjoin enforcement of criminal statutes found to be unconstitutional 'when it is found to be essential to the protection of the property rights, as to which the jurisdiction of a court of equity has been invoked.' E.g., Philadelphia Co. v. Stimson, 223 U.S. 605, 621, 32 S.Ct. 340, 345, 56 L.Ed. 570.  And if the determination challenged creates a status which enforces a course of conduct through penal sanctions, a litigant need not subject himself to the penalties to challenge the determination. La Crosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U.S. 18, 69 S.Ct. 379, 93 L.Ed. 463; Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111.

(3) Whether 'justiciability' exists, therefore, has most often turned on evaluating both the appropriateness of the issues for decision by courts and the hardship of denying judicial relief. This explains the inference to be drawn from the cases that 'standing' to challenge official action is more apt to exist when that action is not within the scope of official authority than when the objection to the administrative decision goes only to its correctness. See United States v. Los Angeles & S.L.R. Co., 273 U.S. 299, 314-315, 47 S.Ct. 413, 416, 71 L.Ed. 651; Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536; Ex parte Williams, 277 U.S. 267, 271, 48 S.Ct. 523, 525, 72 L.Ed. 877.  The objection to judicial restraint of an unauthorized exercise of powers is not weighty. 

The injury asserted in the cases at bar does not fall into any familiar category. Petitioner in No. 8, the Joint Anti-Fascist Refugee Committee, is, according to its complaint, an unincorporated association engaged in relief work on behalf of Spanish Republican refugees. Since its inception it has distributed relief totaling $1,229,351; currently it is committed to regular monthly remittances of $5,400. Its revenues have been obtained from public contributions, garnered largely at meetings and social functions. The National Council of American-Soviet Friendship, petitioner in No. 7, is a nonprofit membership corporation whose purpose is alleged to be to strengthen friendly relations between the United States and the Soviet Union by developing cultural relations 'between the peoples of the two nations' and by disseminating in this country educational materials about Russia. It has obtained its funds through public appeals and through collections at meetings. Petitioner in No. 71 is the International Workers Order. Its complaint states that it is a fraternal benefit society, comprising over 1,800 lodges, with assets totaling approximately $5,000,000. Its members pay dues for the general expenses of the Order, and many of them make additional contributions for life, sickness and disability insurance. In addition to its insurance activities, the Order 'attempts to encourage the preservation of the cultural heritages and artistic values developed * * * by the peoples of the different countries of the world and brought with them to the United States.'

In November 1947, each of these organizations was included in the list of groups designated by the Attorney General as within the provisions of Executive Order No. 9835, the President's Loyalty Order. The list was disseminated to all departments and agencies of the Government. Six months later, each was with more particularity labeled 'communist.' Each alleges substantial injury as a consequence. Publicity and meeting places have become difficult for the Refugee Committee and the Council to obtain. The federal tax exemptions of all three organizations have been revoked; licenses necessary to solicitation of funds have been denied the Refugee Committee; and the New York Superintendent of Insurance has begun proceedings, in which a representative of the Attorney General of the United States has appeared, for dissolution of the Order. Most important, each of the organizations asserts that it has lost supporters and members, especially from present or prospective federal employees. Claiming that the injury is irreparable, each asks for relief by way of a declaratory judgment and an injunction.

The novelty of the injuries described in these petitions does not alter the fact that they present the characteristics which have in the past led this Court to recognize justiciability. They are unlike claims which the courts have hitherto found incompatible with the judicial process. No lack of finality can be urged. Designation works an immediate substantial harm to the reputations of petitioners. The threat which it carries for those members who are, or propose to become, federal employees makes it not a finicky or tenuous claim to object to the interference with their opportunities to retain or secure such employees as members. The membership relation is as substantial as that protected in Truax v. Raich and Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, supra. And it is at least doubtful that the members could or would adequately present the organizations' objections to the designation provisions of the Order.

Only on the ground that the organizations assert no interest protected in analogous situations at common law, by statute, or by the Constitution, therefore, can plausible challenge to their 'standing' here be made. But the reasons which made an exercise of judicial power inappropriate in Perkins v. Lukens Steel Co., Tennessee Electric Power Co. v. Tennessee Valley Authority and Alabama Power Co. v. Ickes, supra, are not apposite here. There the injuries were such that, had they not been inflicted by the Government, they clearly could not have been redressed. In Perkins v. Lukens Steel Co., it was not asserted that the authority under which the Government acted was invalid; only the correctness of an interpretation of a statute in the course of the exercise of an admitted power was challenged. In the power cases protection from competition was sought; but the thrust of the law is to preserve competition, not to give protection from it. The action there challenged, furthermore, was not directed at named individuals. Here, on the other hand, petitioners seek to challenge governmental action stigmatizing them individually. They object, not to a particular erroneous application of a valid power, but to the validity of the regulation authorizing the action. They point to two types of injury, each of a sort which, were it not for principles of governmental immunity, would be clearly actionable at common law.

This controversy is therefore amenable to the judicial process.  Its justiciability does not depend solely on the fact that the action challenged is defamatory. Not every injury inflicted by a defamatory statement of a government officer can be redressed in court. On the balance of all considerations, the exercise here of judicial power accords with traditional canons for access to courts without inroads on the effective conduct of government.

This brings us to the merits of the claims before the Court. Petitioners are organizations which, on the face of the record, are engaged solely in charitable or insurance activities. They have been designated 'communist' by the Attorney General of the United States. This designation imposes no legal sanction on these organizations other than that it serves as evidence in ridding the Government of persons reasonably suspected of disloyalty. It would be blindness, however, not to recognize that in the conditions of our time such designation drastically restricts the organizations, if it does not proscribe them. Potential members, contributors or beneficiaries of listed organizations may well be influenced by use of the designation, for instance, as ground for rejection of applications for commissions in the armed forces or for permits for meetings in the auditoriums of public housing projects. Compare Act of April 3, 1948, § 110(c), 62 Stat. 143, 22 U.S.C. (Supp. III) § 1508(c), 22 U.S.C.A. § 1508(c). Yet, designation has been made without notice, without disclosure of any reasons justifying it, without opportunity to meet the undisclosed evidence or suspicion on which designation may have been based, and without opportunity to establish affirmatively that the aims and acts of the organization are innocent. It is claimed that thus to maim or decapitate, on the mere say-so of the Attorney General, an organization to all outward-seeming engaged in lawful objectives is so devoid of fundamental fairness as to offend the Due Process Clause of the Fifth Amendment.

Fairness of procedure is 'due process in the primary sense.' Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 681, 50 S.Ct. 451, 454, 74 L.Ed. 1107. It is ingrained in our national traditions and is designed to maintain them. In a variety of situations the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution. '(T)his court has never held, nor must we now be understood as holding, that administrative officers, when executing the provisions of a statute involving the liberty of persons, may disregard the fundamental principles that inhere in 'due process of law' as understood at the time of the adoption of the Constitution. One of these principles is that no person shall be deprived of his liberty without opportunity, at some time to be heard * * *.' The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86, 100-101, 23 S.Ct. 611, 614, 47 L.Ed. 721. '(B)y 'due process' is meant one which, following the forms of law, is appropriate to the case, and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law; it must be adapted to the end to be attained; and wherever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought.' Hagar v. Reclamation District, No. 108, 111 U.S. 701, 708, 4 S.Ct. 663, 667, 28 L.Ed. 569. 'Before its property can be taken under the edict of an administrative officer, the appellant is entitled to a fair hearing upon the fundamental facts.' Southern R. Co. v. Commonwealth of Virginia ex rel. Shirley, 290 U.S. 190, 199, 54 S.Ct. 148, 151, 78 L.Ed. 260. 'Whether acting through its judiciary or through its Legislature, a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.' Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra, 281 U.S. at page 682, 50 S.Ct. at page 454.

The requirement of 'due process' is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens. But 'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Expressing as it does in its ultimate analysis respect enforced by law for that feeling of just treatment which has been evolved through centuries of Anglo-American constitutional history and civilization, 'due process' cannot be imprisoned within the treacherous limits of any formula. Representing a profound attitude of fairness between man and man, and more particularly between the individual and government, 'due process' is compounded of history, reason, the past course of decisions, and stout confidence in the strength of the democratic faith which we profess. Due process is not a mechanical instrument. It is not a yardstick. It is a process. It is a delicate process of adjustment inescapably involving the exercise of judgment by those whom the Constitution entrusted with the unfolding of the process.

Fully aware of the enormous powers thus given to the judiciary and especially to its Supreme Court, those who founded this Nation put their trust in a judiciary truly independent-in judges not subject to the fears or allurements of a limited tenure and by the very nature of their function detached from passing and partisan influences.

It may fairly be said that, barring only occasional and temporary lapses, this Court has not sought unduly to confine those who have the responsibility of governing by giving the great concept of due process doctrinaire scope. The Court has responded to the infinite variety and perplexity of the tasks of government by recognizing that what is unfair in one situation may be fair in another. Compare, for instance, Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372, with Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938, and see Federal Communications Comm. v. WJR, 337 U.S. 265, 275, 69 S.Ct. 1097, 1103, 93 L.Ed. 1353. Whether the ex parte procedure to which the petitioners were subjected duly observed 'the rudiments of fair play', Chicago, M. & St. P.R. Co. v. Polt, 232 U.S. 165, 168, 34 S.Ct. 301, 58 L.Ed. 554, cannot, therefore, be tested by mere generalities or sentiments abstractly appealing. The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed, the protection implicit in the office of the functionary whose conduct is challenged, the balance of hurt complained of and good accomplished-these are some of the considerations that must enter into the judicial judgment.

Applying them to the immediate situation, we note that publicly designating an organization as within the proscribed categories of the Loyalty Order does not directly deprive anyone of liberty or property. Weight must also be given to the fact that such designation is not made by a minor official but by the highest law officer of the Government. Again, it is fair to emphasize that the individual's interest is here to be weighed against a claim of the greatest of all public interests, that of national security. In striking the balance the relevant considerations must be fairly, which means coolly, weighed with due regard to the fact that this Court is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government.

But the significance we attach to general principles may turn the scale when competing claims appeal for supremacy. Achievements of our civilization as precious as they were hard won were summarized by Mr. Justice Brandeis when he wrote that 'in the development of our liberty insistence upon procedural regularity has been a large factor.' Burdeau v. McDowell, 256 U.S. 465, 477, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (dissenting). It is noteworthy that procedural safeguards constitute the major portion of our Bill of Rights. And so, no one now doubts that in the criminal law a 'person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense-a right to his day in court-are basic in our system of jurisprudence'. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. 'The hearing, moreover, must be a real one, not a sham or a pretense.' Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 153, 82 L.Ed. 288. Nor is there doubt that notice and hearing are prerequisite to due process in civil proceedings, e.g., Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S.Ct. 625, 59 L.Ed. 1027. Only the narrowest exceptions, justified by history become part of the habits of our people or by obvious necessity, are tolerated. Ownbey v. Morgan, 256 U.S. 94, 41 S.Ct. 433, 65 L.Ed. 837; Endicott-Johnson Corp. v. Encyclopedia Press, 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288; see Cooke v. United States, 267 U.S. 517, 536, 45 S.Ct. 390, 394, 69 L.Ed. 767.

It is against this background of guiding considerations that we must view the rather novel aspects of the situation at hand. It is not true that the evils against which the Loyalty Order was directed are wholly devoid of analogy in our own history. The circumstances attending the Napoleonic conflicts, which gave rise to the Sedition Act of 1798, 1 Stat. 596, readily come to mind. But it is true that the executive action now under scrutiny is of a sort not heretofore challenged in this Court. That of itself does not justify the ex parte summary designation procedure. It does make it necessary to consider its validity when judged by our whole experience with the Due Process Clause.

The construction placed by this Court upon legislation conferring administrative powers shows consistent respect for a requirement of fair procedure before men are denied or deprived of rights. From a great mass of cases, running the full gamut of control over property and liberty, there emerges the principle that statutes should be interpreted, if explicit language does not preclude, so as to observe due process in its basic meaning. See, e.g., Anniston Mfg. Co. v. Davis, 301 U.S. 337, 57 S.Ct. 816, 81 L.Ed. 1143; American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 107-108, 67 S.Ct. 133, 143, 91 L.Ed. 103; Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 453, 94 L.Ed. 616. Fair hearings have been held essential for rate determinations  and, generally, to deprive persons of property.  An opportunity to be heard is constitutionally necessary to deport persons even though they make no claim of citizenship, and is accorded to aliens seeking entry in the absence of specific directions to the contrary.  Even in the distribution by the Government of benefits that may be withheld, the opportunity of a hearing is deemed important. 

The high social and moral values inherent in the procedural safeguard of a fair hearing are attested by the narrowness and rarity of the instances when we have sustained executive action even though it did not observe the customary standards of procedural fairness. It is in these instances that constitutional compulsion regarding fair procedure was directly in issue. Thus it has been held that the Constitution cannot be invoked to prevent Congress from authorizing disbursements on the ex parte determination of an administrative officer that prescribed conditions are met. United States v. Babcock, 250 U.S. 328, 39 S.Ct. 464, 63 L.Ed. 1011; cf. United States ex rel. Dunlap v. Black, 128 U.S. 40, 9 S.Ct. 12, 32 L.Ed. 354. The importation of goods is a privilege which, if Congress clearly so directs, may likewise be conditioned on ex parte findings. Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; cf. Hilton v. Merrett, 110 U.S. 97, 3 S.Ct. 548, 28 L.Ed. 83. Only by a close division of the Court was it held that at a time of national emergency, when war has not been closed by formal peace, the Attorney General is not required to give a hearing before denying hospitality to an alien deemed dangerous to public security. Ludecke v. Watkins, 335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 881; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317. Again, when decisions of administrative officers in execution of legislation turn exclusively on considerations similar to those on which the legislative body could itself have acted summarily, notice and hearing may not be commanded by the Constitution. Bi-Metallic Inv. Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372.  Finally, summary administrative procedure may be sanctioned by history or obvious necessity. But these are so rare as to be isolated instances. Den ex dem. Murray v. Hoboken Land & Improvement Co., 18 How. 272, 15 L.Ed. 372; Springer v. United States, 102 U.S. 586, 26 L.Ed. 253; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385.

This Court is not alone in recognizing that the right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society. Regard for this principle has guided Congress and the Executive. Congress has often entrusted, as it may, protection of interests which it has created to administrative agencies rather than to the courts. But rarely has it authorized such agencies to act without those essential safeguards for fair judgment which in the course of centuries have come to be associated with due process. See Switchmen's Union of North America v. National Mediation Board, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; Tutun v. United States, 270 U.S. 568, 576, 577, 46 S.Ct. 425, 426, 70 L.Ed. 738; Pennsylvania R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536.  And When Congress has given an administrative agency discretion to determine its own procedure, the agency has rarely chosen to dispose of the rights of individuals without a hearing, however informals. 

The heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. 

An opportunity to be heard may not seem vital when an issue relates only to technical questions susceptible of demonstrable proof on which evidence is not likely to be overlooked and argument on the meaning and worth of conflicting and cloudy data not apt to be helpful. But in other situations an admonition of Mr. Justice Holmes becomes relevant. 'One has to remember that when one's interest is keenly excited evidence gathers from all sides around the magnetic point * * *.'  It should be particularly heeded at times of agitation and anxiety, when fear and suspicion impregnate the air we breathe. Compare Brown, The French Revolution in English History. 'The plea that evidence of guilt must be secret is abhorrent to free men, because it provides a cloak for the malevolent, the misinformed, the meddlesome, and the corrupt to play the role of informer undetected and uncorrected.' United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551, 70 S.Ct. 309, 317, 94 L.Ed. 317 (dissenting). Appearances in the dark are apt to look different in the light of day.

Man being what he is cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights. At least such is the conviction underlying our Bill of Rights. That a conclusion satisfies one's private conscience does not attest its reliability. The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done. 

The strength and significance of these considerations considerations which go to the very ethos of the scheme of our society-give a ready answer to the problem before us. That a hearing has been thought indispensable in so many other situations, leaving the cases of denial exceptional, does not of itself prove that it must be found essential here. But it does place upon the Attorney General the burden of showing weighty reason for departing in this instance from a rule so deeply imbedded in history and in the demands of justice. Nothing in the Loyalty Order requires him to deny organizations opportunity to present their case. The Executive Order, defining his powers, directs only that designation shall be made 'after appropriate investigation and determination.' This surely does not preclude an administrative procedure, however informal, which would incorporate the essentials of due process. Nothing has been presented to the Court to indicate that it will be impractical or prejudicial to a concrete public interest to disclose to organizations the nature of the case against them and to permit them to meet it if they can. Indeed, such a contention could hardly be made inasmuch as the Loyalty Order itself requires partial disclosure and hearing in proceedings against a Government employee who is a member of a proscribed organization. Whether such procedure sufficiently protects the rights of the employee is a different story. Such as it is, it affords evidence that the wholly summary process for the organizations is inadequate.  And we have controlling proof that Congress did not think that the Attorney General's procedure was indispensable for the protection of the public interest. The McCarran Act, passed under circumstances certainly not more serene than when the Loyalty Order was issued, grants organizations a full administrative hearing, subject to judicial review, before they are required to register as 'Communist-action' or 'Communist-front.' 

We are not here dealing with the grant of Government largess. We have not before us the measured action of Congress, with the pause that is properly engendered when the validity of legislation is assailed. The Attorney General is certainly not immune from the historic requirements of fairness merely because he acts, however conscientiously, in the name of security. Nor does he obtain immunity on the ground that designation is not an 'adjudication' or a 'regulation' in the conventional use of those terms. Due process is not confined in its scope to the particular forms in which rights have heretofore been found to have been curtailed for want of procedural fairness. Due process is perhaps the most majestic concept in our whole constitutional system. While it contains the garnered wisdom of the past in assuring fundamental justice, it is also a living principle not confined to past instances.

Therefore the petitioners did set forth causes of action which the District Court should have entertained. 

Notes