# Flemming v. Nestor/Dissent Brennan

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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 BRENNAN, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.
When Nestor quit the Communist Party in 1939 his past membership was not a ground for his deportation. Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082. It was not until a year later that past membership was made a specific ground for deportation. This past membership has cost Nestor dear. It brought him expulsion from the country after 43 years' residence-most of his life. Now more is exacted from him, for after he had begun to receive benefits in 1955-having worked in covered employment the required time and reached age 65-and might anticipate receiving them the rest of his life, the benefits were stopped pursuant to § 202(n) of the Amended Social Security Act. His predicament is very real-an aging man deprived of the means with which to live after being separated from his family and exiled to life among strangers in a land he quit 47 years ago. The common sense of it is that he has been punished severely for his past conduct.
Even the 1950 statute deporting aliens for past membership raised serious questions in this Court whether the prohibition against ex post facto laws was violated. In Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911, we said 'since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation.' However, precedents which treat deportation not as punishment, but as a permissible exercise of congressional power to enact the conditions under which aliens may come to and remain in this country, governed the decision in favor of the constitutionality of the statute.
However, the Court cannot rest a decision that § 202(n) does not impose punishment on Congress' power to regulate immigration. It escapes the common-sense conclusion that Congress has imposed punishment by finding the requisite rational nexus to a granted power in the supposed furtherance of the Social Security program 'enacted pursuant to Congress' power to 'spend money in aid of the 'general welfare.'" I do not understand the Court to deny that but for that connection, § 202(n) would impose punishment and not only offend the constitutional prohibition on ex post facto laws but also violate the constitutional guarantees against imposition of punishment without a judicial trial.
The Court's test of the constitutionality of § 202(n) is whether the legislative concern underlying the statute was to regulate 'the activity or status from which the individual is barred' or whether the statute 'is evidently aimed at the person or class of persons disqualified.' It rejects the inference that the statute is 'aimed at the person or class of persons disqualified' by relying upon the presumption of constitutionality. This presumption might be a basis for sustaining the statute if in fact there were two opposing inferences which could reasonably be drawn from the legislation, one that it imposes punishment and the other that it is purposed to further the administration of the Social Security program. The Court, however, does not limit the presumption to that use. Rather the presumption becomes a complete substitute for any supportable finding of a rational connection of § 202(n) with the Social Security program. For me it is not enough to state the test and hold that the presumption alone satisfies it. I find it necessary to examine the Act and its consequences to ascertain whether there is ground for the inference of a congressional concern with the administration of the Social Security program. Only after this inquiry would I consider the application of the presumption.
The Court seems to acknowledge that the statute bears harshly upon the individual disqualified, but states that this is permissible when a statute is enacted as a regulation of the activity. But surely the harshness of the consequences is itself a relevant consideration to the inquiry into the congressional purpose. Cf. Trop v. Dulles, 356 U.S. 86, 110, 78 S.Ct. 590, 2 L.Ed.2d 630 (concurring opinion).
It seems to me that the statute itself shows that the sole legislative concern was with 'the person or class of persons disqualified.' Congress did not disqualify for benefits all beneficiaries residing abroad or even all dependents residing abroad who are aliens. If that had been the case I might agree that Congress' concern would have been with 'the activity or status' and not with the 'person or class of persons disqualified.' The scales would then be tipped toward the conclusion that Congress desired to limit benefit payments to beneficiaries residing in the United States so that the American economy would be aided by expenditure of benefits here. Indeed a proposal along those lines was submitted to Congress in 1954, at the same time § 202(n) was proposed, and it was rejected.
Perhaps, the Court's conclusion that regulation of 'the activity or status' was the congressional concern would be a fair appraisal of the statute if Congress had terminated the benefits of all alien beneficiaries who are deported. But that is not what Congress did. Section 202(n) applies only to aliens deported on one or more of 14 of the 18 grounds for which aliens may be deported.
H.R.Rep. No. 1698, 83d Cong., 2d Sess. 25, 77, cited by the Court, describes § 202(n) as including persons who were deported 'because of unlawful entry, conviction of a crime, or subversive activity.' The section, in addition, covers those deported for such socially condemned acts as narcotic addiction or prostitution. The common element of the 14 grounds is that the alien has been guilty of some blameworthy conduct. In other words Congress worked its will only on aliens deported for conduct displeasing to the lawmakers.
This is plainly demonstrated by the remaining four grounds of deportation, those which do not result in the cancellation of benefits. Two of those four grounds cover persons who become public charges within five years after entry for reasons which predated the entry. A third ground covers the alien who fails to maintain his nonimmigrant status. The fourth ground reaches the alien who, prior to or within five years after entry, aids other aliens to enter the country illegally.
Those who are deported for becoming public charges clearly have not, by modern standards, engaged in conduct worthy of censure. The Government's suggestion that the reason for their exclusion from § 202(n) was an unarticulated feeling of Congress that it would be unfair to the 'other country to deport such destitute persons without letting them retain their modicum of social security benefits' appears at best fanciful, especially since, by hypothesis, they are deportable because the conditions which lead to their becoming public charges existed prior to entry.
The exclusion from the operation of § 202(n) of aliens deported for failure to maintain nonimmigrant status rationally can be explained, in the context of the whole statute, only as evidencing that Congress considered that conduct less blameworthy. Certainly the Government's suggestion that Congress may have thought it unlikely that such persons would work sufficient time in covered employment to become eligible for social Security benefits cannot be the reason for this exclusion. For frequently the very act which eventually results in the deportation of persons on that ground is the securing of private employment. Finally, it is impossible to reconcile the continuation of benefits to aliens who are deported for aiding other aliens to enter the country illegally, except upon the ground that Congress felt that their conduct was less reprehensible. Again the Government's suggestion that the reason might be Congress' belief that these aliens would not have worked in covered employment must be rejected. Five years after entry would be ample time within which to secure employment and qualify. Moreover the same five-year limitation applies to several of the 14 grounds of deportation for which aliens are cut off from benefits and the Government's argument would apply equally to them if that in fact was the congressional reason.
This appraisal of the distinctions drawn by Congress between various kinds of conduct impels the conclusion, beyond peradventure that the distinctions can be understood only if the purpose of Congress was to strike at 'the person or class of persons disqualified.' The Court inveighs against invalidating a statute on 'implication and vague conjecture.' Rather I think the Court has strained to sustain the statute on 'implication and vague conjecture,' in holding that the congressional concern was 'the activity or status from which the individual is barred.' Today's decision sanctions the use of the spending power not to further the legitimate objectives of the Social Security program but to inflict hurt upon those who by their conduct have incurred the displeasure of Congress. The Framers ordained that even the worst of men should not be punished for their past acts or for any conduct without adherence to the procedural safeguards written into the Constitution. Today's decision is to me a regretful retreat from Lovett, Cummings and Garland.
Section 202(n) imposes punishment in violation of the prohibition against ex post facto laws and without a judicial trial. I therefore dissent.

## Notes

* ↑ The Alien Registration Act, 1940, 54 Stat. 673, made membership in an organization which advocates the overthrow of the Government of the United States by force or violence a ground for deportation even though the membership was terminated prior to the passage of that statute. See Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586. Until the passage of the Internal Security Act of 1950, 64 Stat. 1006, 1008, it was necessary for the Government to prove in each case in which it sought to deport an alien because of membership in the Communist Party that that organization in fact advocated the violent overthrow of the Government. The 1950 Act expressly made deportable aliens who at the time of entry, or at any time thereafter were 'members of or affiliated with * * * the Communist Party of the United States.' See Galvan v. Press, 347 U.S. 522, 529, 74 S.Ct. 737, 742, 98 L.Ed. 911.
* ↑ A comparable annuity was worth, at the time appellee's benefits were canceled, approximately $6,000. To date he has lost nearly $2,500 in benefits.
* ↑ The Court, recognizing that Cummings v. Missouri, 4 Wall. 277, 18 L.Ed.2d 356, and Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366, strongly favor the conclusion that § 202(n) was enacted with punitive intent, rejects the force of those precedents as drawing 'heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and 'the fierce passions which that struggle aroused." This seems to me to say that the provision of § 202(n) which cuts off benefits from aliens deported for past Communist Party membership was not enacted in a similar atmosphere. Our judicial detachment from the realities of the national scene should not carry us so far. Our memory of the emotional climate stirred by the question of communism in the early 1950's cannot be so short.
* ↑ See H.R.Rep. No. 1698, 83d Cong., 2d Sess. 24-25.
* ↑ See S.Rep. No. 1987, 83d Cong., 2d Sess. 23; H.R.Conf.Rep. No. 2679, 83d Cong., 2d Sess. 4.
* ↑ See Court's opinion, ante, note 1.
* ↑ See the Court's opinion, ante, note 13.
* ↑ It is unnecessary for me to reach the question whether the statute also constitutes a bill of attainder.
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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