# Flemming v. Nestor/Dissent Douglas

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United States Supreme Court
363 U.S. 603
FLEMMING, Secretary of Health, Education, and Welfare, Appellant, v. Ephram NESTOR.
Argued: Feb. 24, 1960. --- Decided: June 20, 1960
Mr. Justice DOUGLAS, dissenting.
Appellee came to this country from Bulgaria in 1913 and was employed, so as to be covered by the Social Security Act, from December 1936 to January 1955-a period of 19 years. He became eligible for retirement and for Social Security benefits in November 1955 and was awarded $55.60 per momth. In July 1956 he was deported for having been a member of the Communist Party from 1933 to 1939. Pursuant to a law, enacted September 1, 1954, he was thereupon denied payment of further Social Security Benefits.
This 1954 law seems to me to be a classic example of a bill of attainder, which Art. I, § 9 of the Constitution prohibits Congress from enacting. A bill of attainder is a legislative act which inflicts punishment without a judicial trial. Cummings v. Missouri, 4 Wall. 277, 323, 18 L.Ed. 356.
In the old days punishment was meted out to a creditor or rival or enemy by sending him to the gallows. But as recently stated by Irving Brant,
'* * * By smiting a man day after day with slanderous words, by taking away his opportunity to earn a living, you can drain the blood from his veins without even scratching his skin.
'Today's bill of attainder is broader than the classic form, and not so tall and sharp. There is mental in place of physical torture, and confiscation of tomorrow's bread and butter instead of yesterday's land and gold. What is perfectly clear is that hate, fear and prejudice play the same role today, in the destruction of human rights in America that they did in England when a frenzied mob of lords, judges, bishops and shoemakers turned the Titus Oates blacklist into a hangman's record. Hate, jealousy and spite continue to fill the legislative attainder lists just as they did in the Irish Parliament of ex-King James.' Bills of attainder, when they imposed punishment less than death, were bills of pains and penalties and equally beyond the constitutional power of Congress. Cummings v. Missouri, supra, 4 Wall. at page 323.
Punishment in the sense of a bill of attainder includes the 'deprivation or suspension of political or civil rights.' Cummings v. Missouri, supra, at page 322. In that case it was barring a priest from practicing his profession. In ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, it was excluding a man from practicing law in the federal courts. In United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, it was cutting off employees' compensation and barring them permanently from government service. Cutting off a person's livelihood by denying him accrued social benefits-part of his property interests-is no less a punishment. Here, as in the other cases cited, the penalty exacted has one of the classic purposes of punishment-'to reprimand the wrongdoer, to deter others.' Trop v. Dulles, 356 U.S. 86, 96, 78 S.Ct. 590, 595, 2 L.Ed.2d 630.
Social Security payments are not gratuities. They are products of a contributory system, the funds being raised by payment from employees and employers alike, or in case of self-employed persons, by the individual alone. See Social Security Board v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 640, 90 L.Ed. 718. The funds are placed in the Federal Old-Age and Survivors Insurance Trust Fund, 42 U.S.C. § 401(a), 42 U.S.C.A. § 401(a); and only those who contribute to the fund are entitled to its benefits, the amount of benefits being related to the amount of contributions made. See Stark, Social Security: Its Importance to Lawyers, 43 A.B.A.J. 319, 321 (1957). As the late Senator George, long Chairman of the Senate Finance Committee and one of the authors of the Social Security system, said:
'There has developed through the years a feeling both in and out of Congress that the contributory social insurance principle fits our times-that it serves a vital need that cannot be as well served otherwise. It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles-that what is due as a matter of earned right is far better than a gratuity. * * *
'Social security is not a handout; it is not charity; it is not relief. It is an earned right based upon the contributions and earnings of the individual. As an earned right, the individual is eligible to receive his benefit in dignity and self-respect.' 102 Cong.Rec. 15110.
Social Security benefits have rightly come to be regarded as basic financial protection against the hazards of old age and disability. As stated in a recent House Report:
'The old-age and survivors insurance system is the basic program which provides protection for America's families against the loss of earned income upon the retirement or death of the family provider. The program provides benefits related to earned income and such benefits are paid for by the contributions made with respect to persons working in covered occupations.' H.R.Rep. No. 1189, 84th Cong., 1st Sess. 2.
Congress could provide that only people resident here could get Social Security benefits. Yet both the House and the Senate rejected any residence requirements. See H.R.Rep. No. 1698, 83d Cong., 2d Sess. 24-25; S.Rep. No. 1987, 83d Cong., 2d Sess. 23. Congress concededly might amend the program to meet new conditions. But may it take away Social Security benefits from one person or from a group of persons for vindictive reasons? Could Congress on deporting an alien for having been a Communist confiscate his home, appropriate his savings accounts, and thus send him out of the country penniless? I think not. Any such Act would be a bill of attainder. The difference, as I see it, between that case and this is one merely of degree. Social Security benefits, made up in part of this alien's own earnings, are taken from him because he once was a Communist.
The view that § 202(n), with which we now deal, imposes a penalty was taken by Secretary Folsom, appellant's predecessor, when opposing enlargement of the category of people to be denied benefits of Social Security, e.g., those convicted of treason and sedition. He said:
'Because the deprivation of benefits as provided in the amendment is in the nature of a penalty and based on considerations foreign to the objectives and provisions of the oldage and survivors insurance program, the amendment may well serve as a precedent for extension of similar provisions to other public programs and to other crimes which, while perhaps different in degree, are difficult to distinguish in principle.
'The present law recognizes only three narrowly limited exceptions to the basic principle that benefits are paid without regard to the attitudes, opinions, behavior, or personal characteristics of the individual * * *.' Hearings Senate Finance Committee on Social Security Amendments of 1955, 84th Cong., 2d Sess., 1319.
The Committee Reports, though meagre, support Secretary Folsom in that characterization of § 202(n). The House Report tersely stated that termination of the benefits would apply to those persons who were deported 'because of illegal entry, conviction of a crime, or subversive activity.' H.R.Rep. No. 1698, 83d Cong., 2d Sess. 25. The aim and purpose are clear-to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology. That is a modern version of the bill of attainder-as plain, as direct, as effective as those which religious passions once loosed in England and which later were employed against the Tories here. I would affirm this judgment.

## Notes

* ↑ Address entitled Bills of Attainder in 1787 and Today. Columbia Law Review dinner 1954, published in 1959 by the Emergency Civil Liberties Committee, under the title Congressional Investigations and Bills of Attainder.
* ↑ The broad sweep of the idea of punishment behind the concept of the bill of attainder was stated as follows by Irving Brant, op. cit. supra, note 1, 9-10:
* ↑ The three exceptions referred to were (1) § 202(n); (2) Act of September 1, 1954, 68 Stat. 1142, 5 U.S.C. §§ 2281-2288, 5 U.S.C.A. §§ 2281-2288; (3) Regulation of the Social Security Administration, 20 CFR § 403.409-denying dependent's benefits to a person found guilty of felonious homicide of the insured worker.
* ↑ Brandt, op. cit., supra, note 1, states at p. 9:
'What were the framers aiming at when they forbade bills of attainder? They were, of course, guarding against the religious passions that disgraced Christianity in Europe. But American bills of attainder, just before 1787, were typically used by Revolutionary assemblies to rid the states of British Loyalists. By a curious coincidence, it was usually the Tory with a good farm who was sent into exile, and all too often it was somebody who wanted that farm who induced the legislature to attaint him. Patriotism could serve as a cloak for greed as easily as religion did in that Irish Parliament of James the Second.
'But consider a case in which nothing could be said against the motive. During the Revolution, Governor Patrick Henry induced the Virginia legislature to pass a bill of attainder condemning Josiah Phillips to death. He was a traitor, a murderer, a pirate and an outlaw. When ratification of the new Constitution came before the Virginia Convention, Henry inveighed against it because it contained no Bill of Rights. Edmund Randolph taunted him with his sponsorship of the Phillips bill of attainder. Henry then made the blunder of defending it. The bill was warranted, he said, because Phillips was no Socrates. That shocking defense of arbitrary condemnation may have produced the small margin by which the Constitution was ratified.'
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