Joint Anti-Fascist Refugee Committee v. McGrath/Dissent Reed
Mr. Justice REED, with whom THE CHIEF JUSTICE and Mr. Justice MINTON join, dissenting.

The three organizations named in the caption, together with certain other groups and individuals, filed suits in the United States District Court for the District of Columbia primarily to have declared unconstitutional Executive Order No. 9835, March 21, 1947, 12 Fed.Reg. 1935, as applied against these petitioners. Acting under Part III, § 3 of Executive Order No. 9835, note 38 infra, the Attorney General, on November 24, 1947, transmitted the required list of organizations to the Loyalty Review Board. This list included the three above-named organizations. The Board promptly disseminated the information to all departments and agencies. It was published as Appendix A to Title 5, Administrative Personnel, CFR § 210.11(b)(6). 13 Fed.Reg. 1471. Later, September 17, 1948, the three organizations were designated by the Attorney General as 'communist.' 13 Fed.Reg. 6135. The relief sought by petitioners was to have the names of the organizations deleted from the allegedly unconstitutionally created lists because of the obvious harm to their activities by reason of their designation.

The list was transmitted to the Board by the Attorney General as a part of the plan of the President, broadly set forth in Executive Order No. 9835, to furnish maximum protection 'against infiltration of disloyal persons into the ranks of (government) employees, and equal protection from unfounded accusations of disloyalty' for the loyal employees. 12 Fed.Reg. 1935. Executive Order No. 9835 came after long consideration of the problems of possible damage to the Government from disloyalty among its employees. 92 Cong.Rec. 9601. See the Report of the President's Temporary Commission on Employee Loyalty (appointed 1946), p. 23: 'The presence within the government of any disloyal or subversive persons, or the attempt by any such persons to obtain government employment, presents a problem of such importance that it must be dealt with vigorously and effectively.' A list of subversive organizations under Executive Order No. 9300, 3 CFR, 1943 Cum.Supp., 1252, was likewise disseminated to government agencies. 13 Fed.Reg. 1473. Great Britain (see note 31, infra), Australia (Act of October 20, 1950), New Zealand (Deynzer v. Campbell, (1950) N.Z.L.R. 790; 37th Rep., Public Service Comm'n, New Zealand, 1949, p. 14; 38th Rep., Public Service Comm'n, New Zealand, 1950, p. 12), and the Union of South Africa (Act No. 44 of 1950) have taken legislative or administrative steps to control disloyalty among government employees. See The Report of the Royal Commission (Canada) appointed under Order in Council, P.C. 411, February 5, 1946. The method of dealing with communism and communists adopted by the Commonwealth of Australia was held beyond the powers of that government. Australian Communist Party v. Commonwealth, decision of Friday, March 9, 1951, 83 C.L.R. 1.

The procedure for designating these petitioners as communists may be summarized as follows: Executive Order No. 9835, Part III, was issued by the President as Chief Executive, 'in the interest of the internal management of the Government' and under the Civil Service Act of 1883, 22 Stat. 403, as amended, 5 U.S.C.A. § 632 et seq., and § 9A of the Hatch Act. 5 U.S.C.Supp. II, § 118j, 5 U.S.C.A. § 118j. The former acts give general regulatory powers over the employment and discharge of government personnel; the latter is more specific.  These present cases do not involve the removal of any employee. The Order required investigation of the loyalty of applicants for government employment and similar investigation of present employees. To assure uniformity and fairness throughout the Government in the investigation of employees, a Loyalty Review Board was created to review loyalty cases from any department or agency, disseminate information pertinent to employee loyalty programs, and advise the heads thereof. Standards were provided for employment and discharge. So far as pertinent to the objections of petitioner to inclusion on the list of subversive and communist organizations, they appear in note 3 and in the note below.  It was apparently to avoid the necessity of continuous reexamination by all government departments and agencies of the characteristics of organizations suspected of aims inimical to the Government that provision was made in the Order for examination and designation of such organizations by the Attorney General. 12 Fed.Reg. 1938, Part III, § 3.  It was under this plan that the Attorney General made his designations.

The designations made available for the use of the Loyalty Review Board and the departmental or agency loyalty boards, the result of the investigation of the Attorney General into the character of organizations that might fall under suspicion as totalitarian, fascist, communist or subversive. The list does not furnish a basis for any court action against the organizations so designated. It of course might follow from discovery of facts by the investigation that criminal or civil proceedings would be begun to enforce an applicable criminal statute or to cancel the franchise or some license of a listed organization. In such a proceeding, however, the accused organization would have the usual protections of any defendant. The list is evidence only of the character of the listed organizations in proceedings before loyalty boards to determine whether 'reasonable' grounds exist for belief 'that the employee under consideration' is disloyal to the Government of the United States. See note 2, supra. The names were placed on the list by the Attorney General after investigation. If legally permissible, as carried out by the Attorney General, there is no question but that a single investigation as to the character of an organization is preferable to one by each of the more than a hundred agencies of government that are catalogued in the United States Government Organization Manual. To require a determination as to each organization for the administrative hearing of each employee investigated for disloyalty would be impossible. The employee's association with a listed organization does not, under the Order, establish, even prima facie, reasonable grounds for belief in the employee's disloyalty. 

None of the complaints deny that the Attorney General made an 'investigation' of the organizations to determine whether or not they were totalitarian, fascist, communist or subversive as required by Part III, § 3, or that he had material information concerning disloyal activities on their part. The Council came the nearest to such an allegation in the quoted excerpts from their complaint in note 10, but we read them as no more than allegations of unconstitutionality because 'investigation' without notice and hearing is not 'appropriate.' Certainly there is no specific allegation of the way in which the Attorney General failed to follow the Order. We therefore assume that the designation was made after appropriate investigation and determination. 

No objection is or could reasonably be made in the records or briefs to an examination by the Government into the loyalty of its employees. Although the Founders of this Republic rebelled against their established government of England and won our freedom, the creation of our own constitutional government endowed that new government, the United States of America, with the right and duty to protect its existence against any force that seeks its overthrow or changes in its structure by other than constitutional means. Tolerant as we are of all political efforts by argument or persuasion to change the basis of our social, economic or political life, the line if drawn sharply and clearly at any act or incitement to act in violation of our constitutional processes. Surely the Government need not await an employee's conviction of a crime involving disloyalty before separating him from public service. Governments cannot be indifferent to manifestations of subversion. As soon as these are significant enough reasonably to cause concern as to the likelihood of action, the duty to protect the state compels the exertion of governmental power. Not to move would brand a government with a dangerous weakness of will. The determination of the time for action rests with the executive and legislature arms. An objection to consideration of an employee's sympathetic association with an admitted totalitarian, fascist, communist or subversive group, as bearing upon the propriety of his retention or employment as a government employee would have no better standing. The Order gives conclusive indication of the type of organization that is meant by the four word-labels.  Following them in Part III, § 3, 12 Fed.Reg. 1938, are the words, 'or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.' Bracketed with membership in listed organizations (Exec.Order No. 9835, Part V) as activities for consideration in determining an employee's loyalty are those listed below. These are the standards that define the type of organization subject to designation.  Of course, the Order means that a communist or subversive organization is of the same general character as one that seeks to alter our form of government by unconstitutional means, 13 Fed.Reg. 6137, to wit by force and violence.

Procedure under the Executive Order does not require 'proof' in the sense of a court proceeding that these communist organizations teach or incite to force and violence to obtain their objectives.  What is required by the Order is an examination and determination by the Attorney General that these organizations are 'communist.' The description 'communist' is adequate for the purposes of inquiry and listing. No such precision of definition is necessary as a criminal prosecution might require. Cf. United States v. Chemical Foundation, 272 U.S. 1, 14, 47 S.Ct. 1, 6, 71 L.Ed. 131. Communism is well understood to mean a group seeking to overthrow by force and violence governments such as ours and to establish a new government based on public ownership and direction of productive property. Undoubtedly, there are reasonable grounds to conclude that accepted history teaches that revolution by force and violence to accomplish this end is a tenet of communists.  No more is necessary to justify an organization's designation as communist.

As a basis for petitioners' attack on the list, the Refugee Committee set forth facts in its complaint to show its charitable character. These indicate activities and expenditures in aid of the Spanish Republicans in flight from their homeland. The International Workers Order sets forth facts to show that it was a duly organized fraternal benefit society under New York law, furnishing sickness and death benefits as well as life insurance protection to its members. It states other worthy objectives in which it is engaged and asserts it is not an organization such as are referred to in the Order, Part III, § 3, supra. The Council, too, sets out its purpose to promote American-Soviet friendship by means of education and information. It asserts: 'In all its activities the National Council has sought to further the best interests of the American people by lawful, peaceful and constitutional means.'

The absence of any provision in the Order or rules for notice to suspected organizations, for hearings with privilege to the organizations to confront witnesses, cross-examine, produce evidence and have representation of counsel or judicial review of the conclusion reached by the Attorney General is urged by the petitioners, as a procedure so fundamentally unfair and restrictive of personal freedoms as to violate the Federal Constitution, specifically the Due Process Clause and the First Amendment. No opportunity was allowed by the Attorney General for petitioners to offer proof of the legality of their purposes or to disprove charges of subversive operations. This is the real gravamen of each complaint, the basis upon which the determination of unconstitutionality is sought. 

To these complaints, the Government filed motions to dismiss because of failure to state a claim upon which relief could be granted. The motions were granted by the District Court and the Court of Appeals affirmed.

Admissions by motions to dismiss.-It is held in Mr. Justice BURTON'S opinion that the motion to dismiss should have been denied. It is said: 'The inclusion of any of the complaining organizations in the designated list solely on the facts alleged in the respective complaints, which must be the basis for our decision here, is therefore an arbitrary and unauthorized act. In the two cases where the complaint specifically alleges the factual absence of any basis for the designation, and the respondents' motion admits that allegation, the designation is necessarily contrary to the record.' 341 U.S. 137, 71 S.Ct. 631.

I understand Mr. Justice BURTON'S opinion to hold that as a motion to strike for failure to state a cause of action admits all well-pleaded facts, respondents' motion admits such allegations in the complaint as that quoted in the third preceding paragraph from the Council's complaint and the assertions that petitioners are not 'totalitarian, facist, communist or subversive.' Such statements, however, appear to me to be only conclusions of law as to the effect of facts stated, or empty assertions or conclusions without well-pleaded facts to sustain them.  Where the issue is the permissibility of designation without notice or hearing, a motion to strike does not admit an allegation of 'arbitrary' action or that 'all its activities (are) * * * constitutional.' These complaints may not be decided upon any such posture in pleading. Petitioners' charge, that their 'designation' violates due process and the First Amendment, remains the issue.

Standing to sue.-A question is raised by the United States as to petitioners' standing to maintain these actions. It seems unnecessary to analyze that problem in this dissent. If there should be a determination that petitioners' constitutional rights are violated by petitioners' designation under Part III, § 3, of the Order, it would seem they would have standing to seek redress. The 'standing' turns on the existence of the federal right.  Does petitioners' designation abridge their rights under the First Amendment? Do petitioners have a constitutional right under the Due Process Clause of the Fifth Amendment to require a hearing before the Attorney General designates them as a subversive or communist organization for the purposes of Executive Order No. 9835?

First Amendment.-Petitioners assert that their inclusion on the disloyal list has abridged their freedom of speech, since listeners or readers are more difficult to obtain for their speeches and publications, and parties interested in their work are more hesitant to become associates. The Refugee Committee brief adds that 'thought' is also abridged. A concurring opinion accepts these arguments to the point of concluding that the publication of the lists 'with or without a hearing' violates the First Amendment.

This Court, throughout the years, has maintained the protection of the First Amendment as a major safeguard to the maintenance of a free republic. This Nation has never suffered from an enforced conformity of expression or a limitation of criticism. But neither are we compelled to endure espionage and sedition. Wide as are the freedoms of the First Amendment, this Court has never hesitated to deny the individual's right to use the privileges for the overturn of law and order. Reasonable restraints for the fair protection of the Government against incitement to sedition cannot properly be said to be 'undemocratic' or contrary to the guarantees of free speech. Otherwise the guarantee of civil rights would be a mockery.  Even when this Court spoke out most strongly against previous restraints, it was careful to recognize that 'The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.' Near v. State of Minnesota, ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357.

Recognizing that the designation, rightly or wrongly, of petitioner organizations as communist impairs their ability to carry forward successfully whatever legitimate objects they seek to accomplish, we do not accept their argument that such interference is an abridgment of First Amendment guarantees.  They are in the position of every proponent of unpopular views. Heresy induces strong expressions of opposition. So long as petitioners are permitted to voice their political ideas, free from suggestions for the opportune use of force to accomplish their social and economic aims, it is hard to understand how any advocate of freedom of expression can assert that their right has been unconstitutionally abridged. As nothing in the orders or regulations concerning this list limits the teachings or support of these organizations, we do not believe that any right of theirs under the First Amendment is abridged by publication of the list.

Due Process.-This point brings us face to face with the argument that whether the Attorney General was right or wrong in listing these organizations, his designation cannot stand because a final decision of ineligibility for employment without notice and hearing rises to the importance of a constitutional defect. If standards for definition of organizations includable on the list are necessary, the order furnishes adequate tests as appears from the text preceding notes 2 and 7 above and the standards set out in those notes. Compare cases cited, note 6, supra.

Does due process require notice and hearing for the Department of Justice investigation under Executive Order No. 9835, Part III, § 3, note 3, supra, preliminary to listing? As a standard for due process one cannot do better than to accept as a measure that no one may be deprived of liberty or property without such reasonable notice and hearing as fairness requires. This is my understanding of the meaning of the opinions upon due process cited in the concurring opinions. We are not here concerned with the rightfulness of the extent of participation in the investigations that might be claimed by petitioners.  They were given no chance to take part. Their claim is that the listing resulted in a deprivation of liberty or property contrary to the procedure required by the Fifth Amendment. 

The contention can be answered summarily by saying that there is no deprivation of any property or liberty of any listed organization by the Attorney General's designation. It may be assumed that the listing is hurtful to their prestige, reputation and earning power. It may be such an injury as would entitle organizations to damages in a tort action against persons not protected by privilege. See Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Glass v. Ickes, 73 App.D.C. 3, 117 F.2d 273, 132 A.L.R. 1328. This designation, however, does not prohibit any business of the organizations, subject them to any punishment or deprive them of liberty of speech or other freedom. The cases relied upon in the briefs and opinions of the majority as requiring notice and hearing before valid action can be taken by administrative officers are where complainant will lose some property or enforceable civil or statutory right by the action taken or proposed.  '(A) mere abstract declaration' by an administrator regarding the character of an organization, without the effect of forbidding or compelling conduct on the part of complainant, ought not to be subject to judicial interference. Rochester Telephone Corp. v. United States, 307 U.S. 125, 129, 143, 59 S.Ct. 754, 756, 763, 83 L.Ed. 1147. That is, it does not require notice and hearing.

These petitioners are not ordered to do anything and are not punished for anything. Their position may be analogized to that of persons under grand jury investigation. Such persons have no right to notice by and hearing before a grand jury; only a right to defend the charge at trial.  Property may be taken for government use without notice or hearing by a mere declaration of taking by the authorized official. No court has doubted the constitutionality of such summary action under the due process clause when just compensation must be paid ultimately.  Persons may be barred from certain positions merely because of their associations. 

To allow petitioners entry into the investigation would amount to interference with the Executive's discretion, contrary to the ordinary operations of Government. Long ago Mr. Chief Justice Taney in Decatur v. Paulding, 14 Pet. 497, 10 L.Ed. 559, stated the rule and the reason against judicial interference with executive discretion:

'The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. * * *

'If a suit should come before this Court, which involved the construction of any of these laws, the Court certainly would not be bound to adopt the construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, no pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of Congress, in order to ascertain the rights of the parties in the cause before them.' 14 Pet. 515, 10 L.Ed. 559.

'The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied that such a power was never intended to be given to them.' 14 Pet. 516, 10 L.Ed. 559.

That rule still stands. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 1468, 93 L.Ed. 1628.  This Court applied it recently in Chicago & Southern Air Lines, Inc., v. Waterman S.S.C.orp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568, as to foreign policy decisions of the President concerning overseas airline licenses.  In State of Louisiana v. McAdoo, 234 U.S. 627, 34 S.Ct. 938, 940, 58 L.Ed. 1506, the State sought to enjoin an order of the Secretary of the Treasury fixing the customs rate on sugar as 'arbitrary, illegal, and unjust' and irreparably injurious to the State. The Court refused the State permission to file the suit as in reality a suit against the United States, saying an officer may be compelled to act ministerially. 'But if the matter in respect to which the action of the official is sought, is one in which the exercise of either judgment or discretion is required, the courts will refuse to substitute their judgment or discretion for that of the official intrusted by law with its execution. Interference in such a case would be to interfere with the ordinary functions of government.' 234 U.S. at page 633, 34 S.Ct. at page 941, 58 L.Ed. 1506. It seems clearly erroneous to suggest that 'listing' determines any 'guilt' or 'punishment' for the organizations or has any finality in determining the loyalty of members. The President and the Attorney General pointed this out.  It is written into the Code of Federal Regulations, 5 CFR § 210.11(b)(6), note 4, supra. The standard for discharge emphasizes the meaning. See notes 2 and 7, supra.

Before stating our conclusions a comment should be made as to the introduction by the concurring opinions of a discussion of the rights of a member of these organizations. It is suggested by one concurrence that as the 'Government proceeds on the basis that each of these associations is so identical with its members that the subversive purpose and intents of the one may be attributed to and made conclusive upon the other,' the organization must be permitted to vindicate the members' rights or due process is not satisfied. Another concurrence states 'an employee may lose his job because of the Attorney General's secret and ex parte action.' Both concurrences indicate, it seems to me, that as a member of petitioner organizations is denied due process by the effect of listing the organizations, the organization is likewise denied due process in the listing. Without accepting the logic of the concurrences, and waiving inquiry as to the standing of a corporation or unincorporated association to defend the rights of a member to employment, we think the suggestions as to lack of due process are based on an erroneous premise. Employees generally, under executive departments and agencies, whether or not members of listed organizations, without special statutory protection such as permanent employees under the competitive and classified civil service laws and regulations or preference eligibles under the Veterans' Preference Act of 1944, 58 Stat. 387, 5 U.S.C.A. § 851, 5 U.S.C.A. § 851 et seq., 5 CFR, Parts 9 and 22, and Part 2, § 2.104, are subject to summary removal by the appointing officers.  Listing of these organizations does not conclude the members' rights to hold government employment. It is only one piece of evidence for consideration.  That mere membership in listed organizations does not normally bring about findings of disloyalty is graphically shown by a report of proceedings under the loyalty program.  The procedure for removal of employees suspected of disloyalty follows the routine prescribed for the removal of employees on other grounds for dismissal. Employees under investigation have never had the right to confrontation, cross-examination and quasi-judicial hearing. 5 U.S.C. § 652, 5 U.S.C.A. § 652, 37 Stat. 555. Normal removal procedure functions for permanent employees about in this way. The employing agency may remove for the efficiency of the service, including grounds for disqualification of an applicant. 5 CFR, 1947 Supp. § 9.101.  Removal requires notice and charges.  Before the loyalty review boards similar procedure is followed.  Where initial consideration indicates a removal of an incumbent for disloyalty may be warranted, notice is provided for.  Thus, there is scrupulous care taken to see that an employee who has fallen under suspicion has notice of the charges and an opportunity to explain his actions. The employee has no opportunity to disprove the characterization placed upon the listed organization by the Attorney General for the practical reasons stated following note 2, supra. The employee does have every opportunity to explain his association with that organization. The Constitution requires for the employee no more than this fair opportunity to explain his questioned activities. Such procedure is quite similar to that followed in Great Britain in the removal or transfer of civil servants from positions 'vital to the security of the State.' The Prime Minister assumed the authority to designate membership in the Communist Party or 'other forms of continuing association' therewith as sufficient to bar employment in sensitive areas. 

Conclusion.-In our judgment organizations are not affected by these designations in such a manner as to permit a court's interference or to deny due process. That conclusion holds good also when we assume the organizations may present their members' grievances over discharge as a part of the organization's case. The administrative hearing granted an employee facing discharge is a statutory modification of the employing agent's former authority to discharge summarily. Such act or grace does not create a constitutional right. Due process is called for in determinations affecting rights.

What petitioners seek is a ruling that the Government cannot designate organizations as communist for the purpose of furthering investigations into employees' loyalty by the employing agencies without giving those organizations an opportunity to examine and meet the information on which the list is based. One can understand that position. There is a natural hesitation against any action that may damage any person or organization through an error that notice and hearing might correct. Such attitude of tolerance is reflected in § 13 of the Internal Security Act of 1950, 64 Stat. 987, 998. A statutory requirement for notice and administrative hearing, however, does not mean the existence of a constitutional requirement. 

The Executive his authority to gather information concerning the loyalty of its employees as congressional committees have power to investigate matters of legislative interest. A public statement of legislative conclusions on information that later may be found erroneous may damage those investigated but it is not a civil judgment or a criminal conviction. Due process does not apply. Questions of propriety of political action are not for the courts. Information that an employee associates with or belongs to organizations considered communistic may be deemed by the Executive a sound reason for making inquiries into the desirability of the employment of that employee. That is not 'guilt by association.' It is a warning to investigate the conduct of the employee and his opportunity for harm.

While we must be on guard against being moved to conclusions on the constitutionality of action, legislative or executive, by the circumstances of the moment, undoubtedly varying conditions call for differences in procedure. Due process requires appraisal in the light of conditions confronting the executive during the continuation of the challenged action.  Power lies in the executive to guard the Nation from espionage, subversion and sedition by examining into the loyalty of employees, and due process in such investigation depends upon the particular exercise of that power in particular conditions.  In investigations to determine the purposes of suspected organizations, the Government should be free to proceed without notice or hearing. Petitioners will have protection when steps are taken to punish or enjoin their activities. Where notice and such administrative hearing as the Code Federal Regulations prescribes precede punishment, injunction or discharge, petitioners and their members' rights to due process are protected.

The judgment of the Court of Appeals should be affirmed. 

Notes