# Flemming v. Nestor/Dissent Black

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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 BLACK, dissenting.
For the reasons stated here and in the dissents of Mr. Justice DOUGLAS and Mr. Justice BRENNAN I agree with the District Court that the United States is depriving appellee, Ephram Nestor, of his statutory right to old-age benefits in violation of the United States Constitution.
Nestor came to this country from Bulgaria in 1913 and lived here continuously for 43 years, until July 1956. He was then deported from this country for having been a Communist from 1933 to 1939. At that time membership in the Communist Party as such was not illegal and was not even a statutory ground for deportation. From December 1936 to January 1955 Nestor and his employers made regular payments to the Government under the Federal Insurance Contributions Act, 26 U.S.C. §§ 3101-3125, 26 U.S.C.A. §§ 3101-3125. These funds went to a special federal old-age and survivors insurance trust fund under 49 Stat. 622, 53 Stat. 1362, as amended, 42 U.S.C. § 401, 42 U.S.C.A. § 401, in return for which Nestor, like millions of others, expected to receive payments when he reached the statutory age. In 1954, 15 years after Nestor had last been a Communist, and 18 years after he began to make payments into the old-age security fund, Congress passed a law providing, among other things, that any person who had been deported from this country because of past Communist membership under 66 Stat. 205, 8 U.S.C. § 1251(a)(6)(C), 8 U.S.C.A. § 1251(a) (6)(C), should be wholly cut off from any benefits of the fund to which he had contributed under the law. 68 Stat. 1083, 42 U.S.C. § 402(n), 42 U.S.C.A. § 402(n). After the Government deported Nestor in 1956 it notified his wife, who had remained in this country, that he was cut off and no further payments would be made to him. This action, it seems to me, takes Nestor's insurance without just compensation and in violation of the Due Process Clause of the Fifth Amendment. Moreover, it imposes an ex post facto law and bill of attainder by stamping him, without a court trial, as unworthy to receive that for which he has paid and which the Government promised to pay him. The fact that the Court is sustaining this action indicates the extent to which people are willing to go these days to overlook violations of the Constitution perpetrated against anyone who has ever even innocently belonged to the Communist Party.
In Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434, this Court unanimously held that Congress was without power to repudiate and abrogate in whole on in part its promises to pay amounts claimed by soldiers under the War Risk Insurance Act of 1917, §§ 400-405, 40 Stat. 409. This Court held that such a repudiation was inconsistent with the provision of the Fifth Amendment that 'No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' The Court today puts the Lynch case aside on the ground that 'It is hardly profitable to engage in conceptualizations regarding 'earned rights' and 'gratuities." From this sound premise the Court goes on to say that while 'The 'right' to Social Security benefits is in one sense 'earned," yet the Government's insurance scheme now before us rests not on the idea of the contributors to the fund earning something, but simply provides that they may 'justly call' upon the Government 'in their later years, for protection from 'the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near." These are nice words but they cannot conceal the fact that they simply tell the contributors to this insurance fund that despite their own and their employers' payments the Government, in paying the beneficiaries out of the fund, is merely giving them something for nothing and can stop doing so when it pleases. This, in my judgment, reveals a complete misunderstanding of the purpose Congress and the country had in passing that law. It was then generally agreed, as it is today, that it is not desirable that aged people think of the Government as giving them something for nothing. An excellent statement of this view, quoted by Mr. Justice DOUGLAS in another connection, was made by Senator George, the Chairman of the Finance Committee when the Social Security Act was passed, and one very familiar with the philosophy that brought it about:
'It comports better than any substitute we have discovered with the American concept that free men want to earn their security and not ask for doles-that what is due as a matter of earned right is far better than a gratuity. * * *
'Social Security is not a handout; it is not charity; it is not relief. It is an earned right based upon the contributions and earnings of the individual. As an earned right, the individual is eligible to receive his benefit in dignity and self-respect.' 102 Cong.Rec. 15110.
The people covered by this Act are now able to rely with complete assurance on the fact that they will be compelled to contribute regularly to this fund whenever each contribution falls due. I believe they are entitled to rely with the same assurance on getting the benefits they have paid for and have been promised, when their disability or age makes their insurance payable under the terms of the law. The Court did not permit the Government to break its plighted faith with the soldiers in the Lynch case; it said the Constitution forbade such governmental conduct. I would say precisely the same thing here.
The Court consoles those whose insurance is taken away today, and others who may suffer the same fate in the future, by saying that a decision requiring the Social Security system to keep faith 'would deprive it of the flexibility and boldness in adjustment to everchanging conditions which it demands.' People who pay premiums for insurance usually think they are paying for insurance, not for 'flexibility and boldness.' I cannot believe that any private insurance company in America would be permitted to repudiate its matured contracts with its policyholders who have regularly paid all their premiums in reliance upon the good faith of the company. It is true, as the Court says, that the original Act contained a clause, still in force, that expressly reserves to Congress '(t)he right to alter, amend, or repeal any provision' of the Act. § 1104, 49 Stat. 648, 42 U.S.C. § 1304, 42 U.S.C.A. § 1304. Congress, of course, properly retained that power. It could repeal the Act so as to cease to operate its old-age insurance activities for the future. This means that it could stop covering new people, and even stop increasing its obligations to its old contributors. But that is quite different from disappointing the just expectations of the contributors to the fund which the Government has compelled them and their employers to pay its Treasury. There is nothing 'conceptualistic' about saying, as this Court did in Lynch, that such a taking as this the Constitution forbids.
In part II of its opinion, the Court throws out a line of hope by its suggestion that if Congress in the future cuts off some other group from the benefits they have bought from the Government, this Court might possibly hold that the future hypothetical act violates the Due Process Clause. In doing so it reads due process as affording only minimal protection, and under this reading it will protect all future groups from destruction of their rights only if Congress 'manifests a patently arbitrary classification, utterly lacking in rational justification.' The Due Process Clause so defined provides little protection indeed compared with the specific safeguards of the Constitution such as its prohibitions against taking private property for a public use without just compensation, passing ex post facto laws, and imposing bills of attainder. I cannot agree, however, that the Due Process Clause is properly interpreted when it is used to subordinate and dilute the specific safeguards of the Bill of Rights, and when 'due process' itself becomes so wholly dependent upon this Court's idea of what is 'arbitrary' and 'rational.' See Levine v. United States, 362 U.S. 610, 620, 80 S.Ct. 1038, 1044 (dissenting opinion); Adamson v. California, 332 U.S. 46, 89-92, 67 S.Ct. 1672, 1695-1696 (dissenting opinion); Rochin v. California, 342 U.S. 165, 174, 72 S.Ct. 205, 211, 96 L.Ed. 183 (concurring opinion). One reason for my belief in this respect is that I agree with what is said in the Court's quotation from Helvering v. Davis, 301 U.S. 619, 644, 57 S.Ct. 904, 910, 81 L.Ed. 1307:
'Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom.'
And yet the Court's assumption of its power to hold Acts unconstitutional because the Court thinks they are arbitrary and irrational can be neither more nor less than a judicial foray into the field of governmental policy. By the use of this due process formula the Court does not, as its proponents frequently proclaim, abstain from interfering with the congressional policy. It actively enters that field with no standards except its own conclusion as to what is 'arbitrary' and what is 'rational.' And this elastic formula gives the Court a further power, that of holding legislative Acts constitutional on the ground that they are neither arbitrary nor irrational, even though the Acts violate specific Bill of Rights safeguards. See my dissent in Adamson v. California, supra. Whether this Act had 'rational justification' was, in my judgment, for Congress; whether it violates the Federal Constitution is for us to determine, unless we are by circumlocution to abdicate the power that this Court has been held to have ever since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60.
The Court in part III of its opinion holds that the 1954 Act is not an ex post facto law or bill of attainder even though it creates a class of deportees who cannot collect their insurance benefits because they were once Communists at a time when simply being a Communist was not illegal. The Court also puts great emphasis on its belief that the Act here is not punishment. Although not believing that the particular label 'punishment' is of decisive importance, I think the Act does impose punishment even in a classic sense. The basic reason for Nestor's loss of his insurance payments is that he was once a Communist. This man, now 69 years old, has been driven out of the country where he has lived for 43 years to a land where he is practically a stranger, under an Act authorizing his deportation many years after his Communist membership. Cf. Galvan v. Press, 347 U.S. 522, 532, 533, 74 S.Ct. 737, 743, 744, 98 L.Ed. 911 (dissenting opinions). Now a similar ex post facto law deprives him of his insurance, which, while petty and insignificant in amount to this great Government, may well be this exile's daily bread, for the same reason and in accord with the general fashion of the day-that is, to punish in every way possible anyone who ever made the mistake of being a Communist in this country or who is supposed ever to have been associated with anyone who made that mistake. See, e.g., Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, and Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090. In United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L.Ed. 1252, we said:
'* * * legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.'
Faithful observance of our holdings in that case, in Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, and in Cummings v. Missouri, 4 Wall. 277, 18 L.Ed. 356, would, in my judgment, require us to hold that the 1954 Act is a bill of attainder. It is a congressional enactment aimed at an easily ascertainable group; it is certainly punishment in any normal sense of the word to take away from any person the benefits of an insurance system into which he and his employer have paid their moneys for almost two decades; and it does all this without a trial according to due process of law. It is true that the Lovett, Cummings and Garland Court opinions were not unanimous, but they nonetheless represent positive precedents on highly important questions of individual liberty which should not be explained away with cobwebbery refinements. If the Court is going to overrule these cases in whole or in part, and adopt the views of previous dissenters, I believe it should be done clearly and forthrightly.
A basic constitutional infirmity of this Act, in my judgment, is that it is a part of a pattern of laws all of which violate the First Amendment out of fear that this country is in grave danger if it lets a handful of Communist fanatics or some other extremist group make their arguments and discuss their ideas. This fear, I think, is baseless. It reflects a lack of faith in the sturdy patriotism of our people and does not give to the world a true picture of our abiding strength. It is an unworthy fear in a country that has a Bill of Rights containing provisions for fair trials, freedom of speech, press and religion, and other specific safeguards designed to keep men free. I repeat once more that I think this Nation's greatest security lies, not in trusting to a momentary majority of this Court's view at any particular time of what is 'patently arbitrary,' but in wholehearted devotion to and observance of our constitutional freedoms. See Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 219, 97 L.Ed. 216 (concurring opinion).
I would affirm the judgment of the District Court which held that Nestor is constitutionally entitled to collect his insurance.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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