Earl Warren: -- Charles Rowoldt, petitioner, versus J.D. Perfetto, Acting Officer in Charge Immigration and Naturalization Service, Department of Justice. Mr. Rein.
David Rein: Thank you Your Honor. This is an action to review and set aside a deportation order entered against the petitioner. The petitioner here is an alien, a native of Germany. He is 73 years of age and he has resided in the United States since 1940 at which time he entered permanent residence. He has lived here in other words for a period of about 43, 44 years. He applied for citizenship in 1942, but citizenship was denied. The deportation order here is based upon the statute Section 22 of the Internal Security Act which was enacted in 1950. This section provides for the deportation of aliens who were at any time in the past members of the Communist Party. The order here was based upon a finding by the Immigration and Naturalization Service that the petitioner had been a member of the Communist Party for about six months in the year 1935, that's 15 years before the passage of the act which authorized his deportation. The finding of the Immigration Service in this case rests entirely upon a statement which was made by petitioner under oath to a representative of the Immigration and Naturalization Service. That statement is set out substantial in full in our brief appearing at pages 4 to page 11. I wish to direct the Court's attention at this time to certain portions of that statement which we believe are the more significant portions bearing upon the issues in this case. Reading from page 5 of our brief a question was put to the petitioner, “What was purpose of your joining the Communist Party?” Answer, “The purpose was probably this, it seemed to me that it came hand in hand, the Communist Party and the fight for bread. It seemed to me like this; let's put it this way that the Communist Party and Workers alliance had one aim -- to get something to eat for the people.” On the same theme at page 10 of our brief toward the end of the statement, the question was again put to the petitioner, “Again referring to your joining the Communist Party in 1935 was this motivated by the satisfaction and living under a democracy?” Answer, “No, not by that.” “Just a matter of having no jobs at that time, everybody around me had the idea that we had to fight for something to eat and cloths and shelter. We were not thinking then -- anyways the fellows around me of overthrowing anything. We wanted something to eat and something to crawl into.” Question, “You say fight for something to eat and crawl into. What do you mean by that term?” Answer. “We had to go and ask those who had it -- that was the courthouse at that time. We petitioned city, state and national government. We did and we succeeded. We finally got unemployment laws and a certain budget. Even at the few communist meetings I attended, nothing was ever said about overthrowing anything. All they talked about was fighting for the daily needs. That is why we never thought much of joining those parties in those days.” The statement also contains statement of the petitioner's beliefs in which he stated that he did not, never had believed in the advocacy or the overthrow of the government by force and also a statement of his own question of philosophy which I think that without going into any further detail, can certainly be characterized as an individualistic philosophy.
Felix Frankfurter: Mr. Rein may I ask you?
David Rein: Surely.
Felix Frankfurter: On page 10, the portion you just read, “That is why we never thought much of joining those parties in those days.” What am I, how am I to read that, what do those parties mean?
David Rein: Well I would think it would mean the Communist Party or any other party of a similar radical nature is -- unfortunately Your Honor all we have is this statement.
Felix Frankfurter: I know all you have in that is all I have, but I was just wondering what --
David Rein: I think he would be meaning Communist Party or maybe --
Felix Frankfurter: You say legitimately be drawn from those words?
David Rein: I think he would mean that he was not giving any real significance to the nature of the organization.
Felix Frankfurter: It wasn't asked by the officer what he meant?
David Rein: No this is all --
Felix Frankfurter: It's all we've got.
David Rein: We have.
Earl Warren: I was wondering if this was a fair inference, he was accused of belonging to both the Workers Alliance and the Communist Party, wasn't he?
David Rein: Yes.
Earl Warren: I am wondering if -- if he could have been referring to both of those?
David Rein: He may have been, that was a part of it.
Felix Frankfurter: (Inaudible)
David Rein: What?
Felix Frankfurter: I am just saying –-
David Rein: Sorry he talks about, when he was asked about what he joined, he did say that he joined the Workers Alliance and the Communist Party, he did co-join them in the statement.
Felix Frankfurter: Part of my question was calculated to bring out the -- we haven't gotten any more than we got?
David Rein: That's correct, this is all there is in the record. There is no more than his voluntary statement, and I think it's important to distinguish this from perhaps the Galvan case in the sense that there were no witnesses who testified as against the petitioner who gave any evidence to indicate that his activities or the nature of his membership was any different than appears from his own statement. I should add that he was asked what the nature of his activity was in the Communist Party and that appears also in the record at our brief at page 78 in which he said, his only activity was that for a short while, he acted as a kind of a salesman in a bookstore run by the Communist Party at the time and he said, he had no other activity other than that. We have raised two questions in our brief here, one is --
Earl Warren: May I ask you before you get to that, is there any substantial evidence in the record concerning his membership other than his own statement?
David Rein: There is no evidence substantial --
Earl Warren: There is no evidence of any kind?
David Rein: No evidence of any kind. All that appears is his own statement. There is no evidence at all except from that statement, so I can certainly there is no substantial evidence. We raise two questions in our brief, one is the question of nominal membership in which we argue that the petitioner was merely a nominal member and therefore does not fall within the confines of the deportation statute here involved and second the question of the Constitutionality of that statute. I wish to address myself to the first question, his0 nominal membership first. Galvan against Press which sustained the Constitutionality of Section 22 of the Internal Security Act of 1950, the statute involved here, recognized however that it was possible to be a member of the Communist Party and still be only a nominal member. As we read Galvan, this was not equivalent to being an involuntary or unconscious member that concededly we raise no point about it. It was not necessary to be more than a nominal member to have full knowledge of the unlawful advocacy of the Communist Party or the doctrines of overthrow the government by force and violence but it was necessary to take one out of the classification of nominal member to show something more than mere membership.
Speaker: You claim that Galvan (Inaudible)
David Rein: What we claim at Galvan, appreciating the language and the debates and the clarifying amendment passed in 1951 that Congress itself said that it did not wish any kind of a member to come within the confines of the statute. Now to go back of that, Congress itself when it passed this 1951 clarifying amendment said it was doing no more and wanted to do no more than the law as it had existed prior to the 1950 statute. I should clarify that when I say the laws that existed with regard to members of organizations. In other words, prior to 1950 there had been no statute providing for the deportation of a member of the Communist Party. There had been statutes going all the way back to 1918 and 1919 providing for the deportation of members of organizations that advocated the overthrow of the government by force and violence. And I wish to indicate that the meaning of that term ‘member' was, as they said, to be construed as it had been construed in cases in the past, and then they gave their notion of how that had been construed. In other words, they were saying they were just clarifying it. We just set out in our --
Speaker: Did I make my question (Inaudible)
David Rein: Yes.
Speaker: Now assuming we can conclude that this record didn't come within that subdivision but (Inaudible)
David Rein: Yes, Galvan says that expressly.
Speaker: In other words you read something more with Galvan and merely a --
David Rein: Those three --
Speaker: -- reference to those divisions.
David Rein: Yes, Galvan says that expressly. As a matter of fact it says that in examining the debates of 1951 amendment, particularly the reference in the Congressional debates for the opinion of Colyer against Skeffington, Galvan expressly says that Congress are meant to exclude other categories from the class of membership or to include them with a nominal membership other than these three specific categories. That's the -- that's an express statement in Galvan. If I may say, it's on page 20 of my brief quoting from page 5 to 7 of Galvan, “Congress did not provide that the three types of situations that enumerated and the 1951 corrective statute should be the only instances where membership is so nominal as to keep an alien out of the deportable class.” So we say that Galvan said that even if an individual did not fall into any of these three categories, he could still fall outside of the scope of the statute that these membership was of a nominal character. And indeed that doctrine of Galvan finds support in the debates. We have set out in our supplemental reply brief of a language used by Senator Ferguson in the course of the debate on the Senate floor. Now Senator Ferguson's comments are particularly appropriate here because he was the mover of the amendment in the form in which it was finally adopted. I should say that the time in 1951 clarifying amendment was first brought in by Senator McCarran on behalf of the Judiciary Committee, it provided that it would apply only to members of so called fascist organizations and do not provide this clarification or exception for members of allegedly communist organizations. Senator Ferguson moved to amend that clarifying provision so that it would cover members of communist organizations as well as fascist organizations. That amendment was adopted and it was passed in that form. So Senator Ferguson is really the author of the amendment in the form in which it passed. We have set out two quotes from him in the debate and it is clear he says, that his understanding of the amendment is that it would exclude all those who are communists by conviction what we call mentally communists, but it would not exclude those who really in effect never have been what I call mentally communists and he goes on and repeats himself at a later portion of the Congressional record. Also is significant, and I think this is of great significance here, is that Congress itself said that the meaning to be used in members here is to be found in the way it's been interpreted in the courts in the past. And they refer to one case as the chief source, as a matter of fact, it's the only case I know of which really discussed this problem, when one could be a member of a the Communist Party but on his relationship was still so nominal as to keep him without the scope of the statute and that is the District Court case of Colyer against Skeffington. The Congressional memorandum quoted approvingly from that case and so did Galvan. We have set out again in our supplemental reply brief other quotations from that case, which I think especially are in force with this particular case. At page 3 for example, Colyer against Skeffington indicated and in fact set aside deportation orders and I am reading from page 3 of my supplemental reply brief, when I say the ‘reply brief' on re-argument in which the Court said, “Social, educational purposes and race sympathy rather than political agitation constituted the controlling motive with a large share of them,” that is aliens ordered deported on grounds of membership. “They join the local Russian and Polish or Lithuanian socialist or communist club, just as citizens join neighborhood clubs, social or religious or civic or fraternal.” The Court then in two other cases, this case involved a member of separate cases, which were being all reviewed in one decision in Colyer against Skeffington. One of the cases significantly show that the sole evidence against the alien there was that he had paid dues to the Communist Party for three months. The Court held that that was insufficient proof to show that character of membership to fall within the statute and it set aside the deportation order in that case.
Speaker: How long had this man been a member?
David Rein: Rowoldt, about six months.
Speaker: (Inaudible)
David Rein: Well the record on that again it's his statement. He was asked, he was asked when he joined, he said in the spring or early summer of 1935. When did you leave, towards the end of 1935. Later the question was put to him by a representative of the service, he said, “Then you were a member for about a year?” And he said, “Yes.” Well I think that it's fair inference it was probably about six months. Significantly the Immigration Service which made the finding in this case and the finding before you its finding is for a period of about six months. So they gave him a benefit of whatever doubt that they have been from his testimony and I think that is the finding before Your Honor here.
Speaker: Did he pay dues?
David Rein: Well it appears here I would say from this record that he probably did pay dues from his statement.
Felix Frankfurter: I think you would want to add, wouldn't you Mr. Rein that Senator McCarran's reference to Colyer against Skeffington is all the more significant in that portion of Judge Anderson's decision were appealed by the government and were reversed by the Court of Appeals but not these portions.
David Rein: That is correct, that is correct. Judge Anderson's opinion there did go ahead and (Inaudible) to the cases that I have indicated which were reversed but not appealed from the government. Judge Anderson went a little further as a matter of fact, and he had three other cases where he found that these people were really members, an active members of the party and he reversed that too on the ground that there had not been any showing of personal advocacy on their part. The government appealed only those cases and those cases were reversed in the case of Skeffington against Katzeff. But these cases the government conceded were the law and were the proper interpretation of member. There is one other case I think of significance that he reversed which we recite was where an alien joined the Communist Party because to him the organization offered an opportunity where he can learn to read, write and do elementary arithmetic requisite. Judge Anderson reversed that and significantly he said the crucial factor of reversing in that case, was here was an individual who showed no interest in politics and was joining the Communist Party for completely different reasons. In my view the case was clear that he knew that he was joining the Communist Party and it was a voluntary act on his part, but the thing that took him out of the class of membership that came within the statute was because of the purpose of his joining, that he no interest in politics.
Speaker: Is this a fair statement of your position on this branch of your argument --
David Rein: Surely.
Speaker: -- that if you didn't have Galvan you would agree that the record is sufficient (Inaudible) Constitutionality of the state to warrant deportation?
David Rein: Well no I don't think so Your Honor. I think that Galvan does no more --
Speaker: No I am saying if you didn't have Galvan --
David Rein: No I would say that Galvan does no more than recognize what the congressional intent of Congress was as indicated in the 1951 clarifying amendment and as indicated in the case of Colyer against Skeffington, I think that if we didn't have Galvan, the job would be for this Court to do what it did in Galvan.
Felix Frankfurter: Galvan isn't a judicial exception.
David Rein: That's correct.
Felix Frankfurter: Galvan is a recognition of a legislated definition.
David Rein: That is correct, in other words I think Galvan indicates what the legislative definition was, but even without Galvan I think the same result should be (Inaudible). I think that the material which we have set out establishes and the debate establishes that for a membership to be more that nominal, there must be some evidence of some meaningful activity. In other words, the government cannot make out a case under this statute by merely showing membership, it must show something more, because if you merely show membership, then literally you are showing only membership and name only and you are showing only nominal membership, nominal membership which does not come in within the scope of the statute.
Felix Frankfurter: On the other side of it is the clear statement that it is not necessary to prove that the particular individual himself wanted to overthrow this government?
David Rein: That's correct and we make no -- we have not disputed that in our brief --
Felix Frankfurter: Or even that he must be assumed to share in the general purpose of (Inaudible)
David Rein: That's correct.
Felix Frankfurter: Namely that like a man, they belong to one of the two great parties and yet disbelieved in most of the (Inaudible)
David Rein: It is not even necessary that he have knowledge as a matter of fact, under Galvan it's not even – that's one of the issues we raise in our discussion on Constitutionality. I would say under Galvan it's not even necessary to show that he had knowledge, that the organization had such practice.
Felix Frankfurter: In other words --
David Rein: Galvan says that unequivocally.
Felix Frankfurter: In other words what Senator McCarran, not only was he promoter of the (Inaudible), what he says (Inaudible) the view of his general attitude for this type of legislation, Senator McCarran doesn't say this statute merely includes (Inaudible) joining without knowing because then you have no problem, that the (Inaudible) act aren't this act. The exception he makes is a man who in fact did join and yet that isn't enough.
David Rein: That is correct. I certainly think that under those standards the facts here, put the petitioner in the class of a nominal member, because of the fact that really all the government shows when you come right down it is that he was a member Communist Party, no more. The Single exception they have to that --
Speaker: They show a little more than that. They show that he paid dues. They show that he was a member for a period of at least six months. They show that he had more than speaking acquaintance with Marxist classics --
David Rein: No they do not show that.
Speaker: They show that he worked in a book store and now what more do you think that would --
David Rein: Well I would say this, they do show he worked in the bookstore, they do not show that he had more than a speaking acquaintance with Marxist classics. The questions addressed to him and which he answered were answered in 1947 and he was asked about what he might have known about Marxist classics or Lenin, and I might say that whatever he did know about them showed that he knew the names of these, certainly his views were different, but there is no evidence that his knowledge at that time, his knowledge at that time that he might have had in 1947 was knowledge he possessed in 1935.
Felix Frankfurter: Well I suppose even people who reject Marxism presumably have a speaking acquaintance with what they are rejecting.
David Rein: That is correct, and as a matter of fact the statement of the petitioner where he discusses these Marxist classics, he states his disagreement with it. And as a matter of fact to one question he was asked about his opinion of the Communist Party to which he is answer is the Communist Party since I have known of them, there is no basis to assume that any knowledge he has of -- was current to 1935. As a matter of fact the fair inference of the statement is that it was since 1935, remember the statement was made in 1947. Also I think and one factor which Your Honor has left out in considering the question of whether he was a nominal member or not, his own statement as to why he joined the Communist Party and what his interest was. He stated that his interest was not a political interest, but that he had a very limited interest in joining the party and that was the struggle for bread. Now I think that has to be taken into account similarly as Judge Anderson took into the account the fact that the alien who joined the Communist Party was interested in a place where he could learn to read and write. So I think gathering all those factors together, the membership here was certainly of a character that can only be described as nominal.
Felix Frankfurter: You would have to go on some such grounds to prevent an FBI man who is not a citizen but is in there to report to the FBI who then joins and works in a bookstore and read Marx, more than this fellow presumably has read, you would have to go to (Inaudible).
David Rein: That's correct.
Felix Frankfurter: Even FBI man.
David Rein: That's correct and I think that was the inquiry adopted in Carlo against Anderson and that seems to be what's in the back of -- clearly if anything is in the back of Senator Ferguson's mind and we must assume there was, he uses the phrase that this amendment will not exclude those who were mentally communists or communists by conviction. In other words, Senator Ferguson would assume that someone who joined the Communist Party for reasons completely disassociated with politics, but for other very immediate reasons as in this case because of the fact that he was interested in an opportunity in a way of getting unemployment relief and his interest is his -- in this record was limited to that and never went any further that, that kind of membership is merely nominal membership. We argue also that on the point raised earlier by Justice Harlan that he falls because of the reasons why he joined the Communist Party in his own statements, he falls within one specific exception as set forth in the 1951 Act, and that is that he joined for the purposes of obtaining the necessities of life.
Speaker: Could I before you leave that (Inaudible) could I ask you a question? Supposing this case was sent back, for a reconsideration in light of Galvan which came after --
David Rein: Yes.
Speaker: And then the immigration people, go over the record again, they read Galvan and we now hold that he is not a nominal member, would that be justifiable or permissible holding in your view on this record?
David Rein: We say no. We say in addition to that, however, that even if the Court would disagree with us and say that it was, it's not the function of this Court to make that finding in the first place. I think one thing that is perfectly clear, it's perfectly clear from the record here, the findings made by the immigration service and indeed even by the argument still presented by the government here that the concept of nominal membership is really never permeated the immigration service. They equated with voluntary and conscious membership, and so long as the fact that remains and the record shows that the individual was alive and awake at the time he joined that is enough for them and that is all they found in this case. But if that therefore at a minimum, even if the Court thinks that there was sufficient evidence here and we think there was not for the reasons set out in our brief, it is not for this Court to make the original determination. We have cited authorities to that effect, I think the Securities Exchange Commission against Chenery and two Labor Board cases indicating that where a finding from an administrative agency comes before this Court and is based upon insufficient -- is based upon inadequate grounds, illegal grounds this Court's function is to set it aside and set it back and not to make an original determination as to how the service could have come out if it had used of the proper standings. It's also conceivable that if the case went back to the service it might have a better record, I think as Justice Frankfurter has said, the record here is a very bare one, and perhaps it might have better Act in which the issue can be explored on both sides as to the character of the petitioner's membership. As I say we think the petitioner here also belongs within specific exception because of the fact that under the facts here it is clear that he joined to obtain the necessities of life. Also and this is language in Galvan, but which comes out of Senator McCarran's quotation from Colyer against Skeffington is that an alien who joins an organization but who has no real knowledge of any of its platforms and purposes and is not aware that it has a distinct and active political organization, falls in the character of a nominal membership. In that connection we like to indicate what seems to us the significant language in this record in which the petitioner in being asked why he joined the Communist Party said all they talked about was fighting for the daily needs, that is why we never thought much of joining those parties in those days. Now whether he meant to include the Communist Party and the other types of parties or the Communist Party and the Workers Alliance, it's perfectly clear from the meaning of that statement and I think it can lead only one inference that he was not joining this organization and thereby adhering to a set of political ideas. What he was doing was joining an organization which could help them in gaining the relief at that present moment and not going beyond that, (Inaudible)
Earl Warren: (Inaudible) ballot in Minnesota at that time, do you know?
David Rein: I believe it was Your Honor. I think that the Court itself has set out statistics in that in its own case in (Inaudible) and I believe they said it was on the ground at that time, I do not know exactly, I know it is on the ballot in many states.
Speaker: Have there been any reported decisions of the immigration people dealing with this kind of a case, nominal membership after Galvan?
David Rein: No, significantly and interestingly the only place where I know where the immigration services recognized the concept and that was -- arose with the history in this Court, after this Court decided Galvan, about a month later or maybe the following week this Court granted certiorari in the case of Garcia against Langer, which seemingly was pretty much the same kind of facts at least on the surface, the issue where the petitioner raised only the question of the Constitutionality of the statute. The case was not heard by this Court because in the following term in October the service filed a memorandum with a suggestion of mootness, in which they asked that, that case be sent back to them, because of the language in Galvan, they could consider whether or not that alien was a nominal member. Now I don't know what they ever did with that case at all, but I have seen no decision of the immigration service in which there was any discussion as to whether or not a person is or is not a nominal member. Their decision since and before Galvan still say he was a member, and that's all they say, without any further discussion of these issues.
Felix Frankfurter: Was there any (Inaudible)
David Rein: I would like to turn now to an argument on the subject of the Constitutionality of the statute. I think the initial problem we have on that is the question as to whether or not deportation statutes are or not subject to Constitutional limitations and are or not subject to judicial review, under either the due process clause, the First Amendment or other provisions of the Bill of Rights. The last time that this case was argued before this Court, our chief complaint against Galvan, was that we thought that it held that there was no judicial review. I thought that after that argument was completed that all sides including the government apparently had conceded that statutes, deportation statutes could be tested as to whether or not they were in conflict with due process. The government has since filed a supplemental brief, however, in which they now retain to the more extreme position, the most extreme position and that is that a deportation statute having been passed by Congress is entirely immune from judicial review at all, for any purposes or any reasons.
Speaker: And substantive due process?
David Rein: Substantive due process, that's correct or so far as I can see of any other position of the Constitution, that as a matter of law they say entirely within the political discretion of Congress and cannot be reviewed for Congress -- by this Court on any basis or ground. The argument that presents on behalf of that theory seemed to fall into two categories. The first one is the statement, that an alien having come here for residence, has no vested right to remain here. Since he has no vested right to remain here, presumably according to the government, his privilege of remaining here can be taken away from him for any reason, for no reason or for bad reasons. Now, I think that on the face of it that argument cannot stand up. Certainly the Constitution, and this Court has held repeatedly, protects people from the deprecation of privileges which do not fall in the category of vested rights. We can give only a few examples and I think in the recent decisions of this Court, the Wieman and the Slochower cases in which what was involved was the privilege of government employment, there was certainly no vested right of government employment. The Schware case decided by this Court last term involved what must be considered to be the privilege of becoming a member of the bar. There was a person who was not even a member of the bar and it was held that he could be denied the privilege of becoming a member of the bar, except on rational grounds. So that the concept of -- there is no vested right it seems to me, it does not meet the argument that the depravation of the privilege not be subject to ordinary Constitutional limitations. The second argument presented by the government is that deportation statutes are immune from judicial review because they are linked with foreign relations and I think that really seems to be the gist of their argument. Now we say that, that notion in that Court is completely unrealistic, as related to the alien in this case or related with a great majority, the overwhelming majority of aliens in this country. I think it's common place to say that we are a nation of immigrant aliens, that aliens who come into this country, come in as immigrant aliens, with the notion of living here for the rest of their lives. The government's brief seems to depend on a theory of dealing with a class of people who have come here for a very transitory purpose, as though they are flitting in and out, that talks about people as being a temporary guest, as though they were visit in someone's house. Now that's certainly not potential. The alien here is not only typical. He came here 43 years ago.
Felix Frankfurter: Do you think (Inaudible)? Do you think it's relevant to the argument that it's 43 or 30?
David Rein: Well I think what is relevant to the argument is the fact that the aliens --
Felix Frankfurter: I understand -- I appreciate that the element of hardship, but do you think if, you say here 23, the problem for us is any different?
David Rein: No, but I think --
Felix Frankfurter: Why this constant appeal to 43 --
David Rein: I think --
Felix Frankfurter: That points out the hardship.
David Rein: No I think being 43 here demonstrates the chief point, is that he no longer has any meaningful ties with the country of his origin and that the notion raised by the government that and as a matter of fact, the only real argument they give is to how foreign relations might come into the picture is that aliens here are a possible source I think they say of political complaint by the country of their origin. Significantly they give no examples and no concrete examples in which there have been political complaints by other countries. Significantly we know that the problem involved with aliens like the plaintiff here, like the petitioner here, who came here, to point is he came here permanently. If he was only 50 years old he may have only been here 20 years, being 73 years old he's been here 43 years, the point is he came here to build his life here and to stay here permanently. He is not a transient. He has no ties. As a matter of fact the record here shows that in the earlier period of 1938 involving an earlier deportation proceeding, he could not be deported because he was stateless. Now, Congress itself in passing this statute and in passing other deportation statutes never took into consideration the argument presented here by the government that somehow these deportation statutes have something to do with our relations of foreign countries, that deporting aliens might as the government say eliminate the source of political complaints.
Felix Frankfurter: Would it make a -- I'm just wondering why you discussed thing so abstractly as you do?
David Rein: I don't, the government does.
Felix Frankfurter: Well even though the government does, (Inaudible) Would it make any difference if Congress said anybody who hasn't taken out citizenship within ten years after coming here and then has (Inaudible) this qualification shall be deported, would that make a difference? How can you talk about this question in this great big large way whether deportation is at all -- statutes of the deportation of judicial review, or that you ring the changes on 43 aliens? I can assure I feel badly about that as you do, but it doesn't touch this problem.
David Rein: Well I must that I start off with the assumption and I must start off with the assumption that deportation statutes like any of the statute of Congress is judicially reviewable to see whether or not it is in conflict with the Constitution.
Felix Frankfurter: I wouldn't think that's worth spending a minute of argument, it's so clear that's it so.
David Rein: Well the only reason why I spend a minute's argument is because the government takes the contrary position. Now the question is then, if it is judicially reviewable, the question is, is this statute, does it meet the requirements of the Constitution? The government and I say again, I would agree that the only reason why when I even mentioned this subject is because the government's position is that it is not judicially reviewable at all under any circumstance.
Felix Frankfurter: Well judicially reviewable is very ambiguous and treacherous phrase. If you mean then it be brought to the bar of this Court and ask this Court to say that it does or doesn't conflict with some provisions of the Constitution there isn't anything that can be brought to the bar of this Court. If you mean by judicially reviewable can we sit in judgment on an exercise of policy by the Congress, that's a different story.
David Rein: Well I think Your Honor that probably that gets us to what seems to be the government's second point and its retreat let's say. Its phrase contention is that it is not judicially reviewable at all and perhaps the government is trying to express the second thought that if judicially reviewable. The standards by which deportation statutes are to be judged are lower that to say than the standards by which this Court would have judged statutes governing government employment. I must say on that, in addressing myself to that, that it has always been my notion, and I think this Court has repeatedly said time and time again that this Court never set aside any statute whether of Congress or of the state unless those statutes are wholly arbitrary and without any rationale basis and we submit that that is the only standard we are asking the Court to apply in this case. We are not asking them to substitute their judgment for Congress. We are asking only to examine this statute to see whether or not in accordance with the normal standards of Constitutional law, this standard can stand up as having any rationale basis whatsoever. And we submit that if that standard is employed, this statute cannot meet the test because deportation statutes, if they have any meaning or significance whatsoever and if they are to have any basis, well only as indicated in the cases itself the power of Congress to rid this country of undesirable aliens, aliens who have shown in one way or another that they are no longer desirable residents of this country.
Felix Frankfurter: And how do you determine who is and who isn't desirable?
David Rein: We'd submit that has to be done on the same rationale basis that this Court would indicate as to who is or who is eligible to become a member of the bar as this Court said in Schware case. Secondly and -- on that aspect of the case this Court was unanimous in which it said that although it is perfectly clear that it is a matter in which this Court cannot interfere as to who can be the member of the Bar of New Mexico when the standards that it employed are so arbitrary and so completely without any basis and reason, this Court will set aside that standard as being a violation of the due process. I think that that type of test is the same type of test that should be applied here.
Felix Frankfurter: That helps me to decide whether the Congress of the United States has constitutional power that no Asiatic should enter this ground, is that unconstitutional?
David Rein: No that would be a different problem Your Honor.
Felix Frankfurter: Never mind what I think about that, I think very ill of it.
David Rein: No we have a different problem. In the first place the government attempts to assimilate throughout its argument exclusion legislation with expulsion legislation. We submit that they come under completely different standards as to whom this country -- who Congress will not permit to come into this country and who Congress wishes to expel after having admitted them for lawful residence and I think the reason for that --
Felix Frankfurter: Or the statute not admitting them for citizenship ever, how about that?
David Rein: Well I think that that would raise another question. People who have been lawfully admitted here and under a statute not admitting them to citizenship this Court might very well examine that and find that it has no rationale basis. I think it's possible for the Court and it is the duty of this Court to examine such statutes and I don't think why --
Felix Frankfurter: Rationale with reference to what? May I know with reference to what?
David Rein: With that whatever the purpose of Congress is in those particular cases, whatever Congress maybe bring before this Court.
Felix Frankfurter: And that this Court can tell Congress who can be naturalized and who can't --
David Rein: No, no.
Felix Frankfurter: And who being incapable of being naturalized shouldn't stay here.
David Rein: No this Court can tell Congress in a hypothetical case if there maybe that the standards that you have set have no rationale basis.
Felix Frankfurter: Rationale with reference to what, I ask you again?
David Rein: Their stated purpose of what the purpose of not naturalizing these particular people maybe, and rationale exercise of constitutional power of naturalization. And that there be a rationale connection between the group of people whom they are denying nationalization to and the purposes of that Congressional power. Now the standard to be applied here is if we, if we go on the assumption which we must that the power of Congress to deport is limited or is based upon its power to rid this country of undesirable aliens, present the undesirable aliens, this Court has that standard to judge whether or not that a particular case here if there is any rationale relationship to that. And if as a matter of fact this -- Congress comes and says they wish to deport people because they are Irish, or because they are catholic, it would be for this Court to say that has no rationale relation if the Court thought so. Now maybe, there maybe a set of facts, circumstances I don't know, I am not arguing those hypothetical cases, but I think the test is there and the test is for this Court to apply and I think the test is to be applied in this case --
Felix Frankfurter: And you think this case is just like saying every, every non-citizen catholic or Jew to be deported, that's this case, is it?
David Rein: I say that this statute must be based, measured by the same standards that --
Felix Frankfurter: I don't know what the same standard is if the standards are different. If they are different they are not sustained. If a discrimination is based on religion, it is same as the discrimination based on something else then they are the same, but if religion is in a different category according to the whole concept of our society, then it's not the same standard.
David Rein: The question is, not the basis, not the basis of the discrimination which Congress employs, but that the standard is the legitimate standard which Congress is entitled to employ, which is that the aliens are undesirable. To give another example if Congress wishes to deport all those with red hair they do not have the problem of religion in that, but it certainly would be appropriate for this Court to say whether or not an individual had red hair has not rationale relationship to whether he is desirable to --
Felix Frankfurter: Do you think that's this case, do you?
David Rein: That is this case.
Felix Frankfurter: That is, alright.
David Rein: That is this case and I think if there is any question about it --
Felix Frankfurter: You mean about, you mean this particular Rowoldt or the statute under which he falls.
David Rein: Falls, falls.
Felix Frankfurter: And they are very different to me.
David Rein: No, because the fact is that this particular statute is going to head for Rowoldt and a great many other people of the same caliber.
Felix Frankfurter: And then it is a question of a quantitative determination of how many people, for how many people it would be a hardship for Congress to pass a statute that otherwise conscientious legislators on the Hill could have passed and did pass.
David Rein: No, no.
Felix Frankfurter: And we have no means of determining how many people are 73 years old, how many people have been X years or X+Y years or X-Y years, everyone of those considerations, we would be called upon to assess that with the same kind of (Inaudible) with more blindness than Congress had.
David Rein: That shows really how blind the statute is because --
Felix Frankfurter: (Inaudible) block the blindness --
David Rein: The statute, no but this Court has said, it said in Wieman, it said in others that once Congress passes a statute in which there is indiscriminate grouping of the innocent and the guilty that statute must fall. In other words if Congress wants to pass a statute which can muster and pass the test of Constitutionality that statute itself must have a statement of culpable characteristics in it which would eliminate on its face people like Rowoldt. The vice of this statute is that it covers people who are members of the Communist Party and it doesn't make any difference for how long or when they were or what their purposes were or what their activities were and how innocent they were. Now I think that --
Felix Frankfurter: Then you'd have this Court say if they had lifted only a year before –-
David Rein: No.
Felix Frankfurter: -- that's a long one, two years before yes, three years before we'd have to think, five years before we would be clear.
David Rein: No I would not have the Court say this. Well I would indicate what I would have the court say. I would have the court say that for statute of this kind to be constitutional it must be limited to people who belong to the organization at the time that it advocated the overthrow of the government by force and violence with evidence produced of that in the case and he must have had knowledge of it and participated in it, and that would be the issue, and that --
Felix Frankfurter: And your first argument leaves that question and doubt whether that isn't true in this case, because the first part of your argument is that the record is so barren that a judgment on those questions couldn't be based on it. As I understand that was your argument on the first point.
David Rein: No, no. I did not address myself to the point of the knowledge of this individual's advocacy or --
Felix Frankfurter: I understood you, you said the record is so barren that if it went back and we have no business to make a judgment here, if it went back a totally different record could be made of it, wouldn't you say that?
David Rein: Yes.
Felix Frankfurter: All right.
David Rein: But not on that issue, because under the statute --
Felix Frankfurter: (Inaudible)
David Rein: Under the statute that issue was irrelevant. The issue of whether or not the Communist Party advocated the overthrow of the government by force and violence at the time of this membership is irrelevant under this statute.
Felix Frankfurter: Well we may, in order to sustain it, we would construe it that way and find that the record which you solicit the (Inaudible) may bear that out and the case may then come up here on a totally different record, a totally different statutory construction.
David Rein: I am arguing the constitutionality of this statute. Now if Your Honor wished to say that it will -- this Court would take a different view as to what the statute says, and the statute makes a person deportable on the ground of having been a member of the Communist Party without showing anymore than that, and that's what Galvan sustained. Now, if the Court wishes to save the constitutionality of the statute, to indicate that it must meet other requirements, I would have no argument for that.
Felix Frankfurter: I'm saying on this record, if we follow the first part of your argument, we can't make out that determination, that's what I'm saying.
David Rein: Well the issue remains to what the statutes says. I'd save my remainder of my time for rebuttal.
Earl Warren: Mr. Davis.
Oscar H. Davis: Mr. Chief justice, may it please the Court? As Mr. Rein has indicated, this case presents two issues, one which is a relatively narrow issue of whether Rowoldt, the petitioner's membership in the Communist Party was of the type which the statute makes deportable, past membership in the Communist Party. The second which is a much broader issue is the issue of the validity of the statute. Mr. Rein has argued the second question, the validity of the statute, as if there has been no prior adjudication of this Court either on this particular issue or on the general issue. As the Court knows the precise issue was considered and decided three years ago in a case of Galvan against Press and a very closely comparable issue was decided five years ago in the case of Harisiades against Shaughnessy. And as the opinions of the Court in those two cases indicate the opinions were rested upon a long line of decisions of this Court, beginning with the Chinese exclusion cases in 130 United States and stemming with relation to deportation from the case of Fong Yue Ting in 1893 in 149 U.S. For these reasons the government did not see fit last year or think it appropriate rather I should say to reargue extensively the issue of the validity of the statute, but since the case was set down for re-argument, we in our supplemental brief set forth the argument which we had made in the Harisiades and the Galvan of briefs putting them together in connected form, so that they would be available for the justices. I do not propose in view of the decision of the Court in the Galvan and Harisiades case to re-argue extensively the constitutionality of the statute unless some of the justices should be desirous that I do so. But I would point out in answer to statements that Mr. Rein made, that nowhere in our brief or in our position, either in Harisiades or in Galvan, did we take the possession that there was absolutely no review whatsoever. We followed the view which we think the Court adopted in those cases, that you have to say that the Congressional determination was a fantasy or a pretense, before you could invalidate it. We did not take the position, which I may say that Judges Learned Hand, Augustus Hand and Swan in the Second Circuit decision in the Harisiades case said was well supported on principal and authority, that is the position that there was an absolute authority of Congress to pass deportation legislation, but this Court did not seek -- find it necessary to take that position in Harisiades or in Galvan and we have not done so. Now on the first issue of the membership of Rowoldt in the Communist Party, I think before I go on to that if the Court would pardon me, it's appropriate to say that there are five cases pending on the Court's docket which raise the issue of the validity of this statute, four of them are pending on petition for certiorari and one of them is a case in which the writ has already been granted, and that issue is collaterally involved, so that the issue is before Your Honors not only in this case but in other cases which are on the Court's docket.
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: Constitutionality of the statute. The other cases, not all, but some of the other cases raise also the question of nominal membership, but there are five cases which definitively raise the question of the constitutionality of this statute. And turning to the question of the membership of Rowoldt in the Communist Party in 1935, the first thing perhaps for me to say is that this is an administrative procedure -- proceeding in which there was a hearing before an Inquiry Officer and appeal to the Assistant Commissioner of the Immigration Service, a decision by the Board of Immigration Appeals, and in those circumstances the Court has long ago laid down the rule that it can reverse the finding of fact only if it finds that there was no evidence or unless it finds that there was not some evidence to support the finding of the administrators. Justice Brandeis laid that down particularly in a case comparable to this and that was a case of a man who distributed pamphlets advocating the overthrow of the government, the case of Tisi against Tod in 264 United States, in which he said the issue is not whether the factual determination was correct or whether it would have been supported if it had made by a district court, but only whether there were some evidence to support the finding of the administrators. And Mr. Justice Douglas for the Court followed the same rule in another case, a comparable case involving membership in the Communist Party, Bridges against Wixon in 1945. So it's in that context we believe that the facts in this case have to be appraised.
Speaker: But it is true, is it not there was no finding made as to character of his membership, whether it was nominal or otherwise?
Oscar H. Davis: Well that was also true Mr. Justice in the Galvan case, in which the Court upheld the findings of deportation. The finding there was simply that Galvan had been a member, but the Court there found that the finding in that case comported with the standards which it said that Congress desired for membership and we think the same thing is true.
Felix Frankfurter: On the marshalling of the evidence in the Galvan --
Oscar H. Davis: Yes, and I wish to turn to the evidence in this record, in the same fashion.
Earl Warren: Mr. Davis, for what reason did the government suggest the remand in that case of --
Oscar H. Davis: The Garcia case?
Earl Warren: -- that Mr. Rein was just taking about, in the light of Galvan, wasn't that to take another look at the administrative finding to see if it complied with the Galvan?
Oscar H. Davis: Yes Mr. Chief Justice, but we think the facts there were very, very different. Garcia --
Earl Warren: But was there no evidence at all there, you concede that there was no evidence in that case, that the --
Oscar H. Davis: On the record.
Earl Warren: -- administrative board could have acted on.
Oscar H. Davis: It the record there, it was very unclear as to whether Garcia knew the difference between the Workers Alliance and the Communist Party. We think here that is not true. There was also the fact that Garcia was an ignorant, illiterate, Mexican. Rowoldt is not at all, Rowoldt is a literate person with considerable degree of sophistication.
Earl Warren: But isn't that merely a matter of degree? Now a moment ago you said that we would not touch it, unless there was absolutely no evidence before the administrative agency and now you say that you did suggest and you go back to the administrative agency in the other case because the facts were different from this, that he was not this well schooled in that --
Oscar H. Davis: Well they were so different Mr. Chief Justice, but in our view there was a very serious question as to whether he knew he was joining something called the Community Party at all.
Earl Warren: But would you go as far as to support the view you just said a moment ago that in order for us to touch it, that there must be no evidence before the –
Oscar H. Davis: Yes, yes.
Earl Warren: Can you tell me what happened when that case went back?
Oscar H. Davis: I don't know Mr. Chief Justice.
Earl Warren: Would you find out for us please?
Oscar H. Davis: I can find out.
Earl Warren: Thank you.
Felix Frankfurter: And just by -- for the sake of interest, in the Tisi against Tod thought I'd refresh my recollection of that, (Inaudible) forgotten that in that case the alien was present, he was represented by counsel, he testified fully, there was examination, cross-examination, regular adversary proceedings.
Oscar H. Davis: There was here too but the witness refused to --
Felix Frankfurter: Sorry.
Oscar H. Davis: There was in this case too, but the witness refused to testify, there was in this case too. The reason why we -- the government or the service was forced to rely upon this statement of January 1947 was because that the deportation hearing which took place in 1952, the witness refused to testify at all, and that was the reason.
Felix Frankfurter: But the record on which you rely he did testify, I mean he did give evidence --
Oscar H. Davis: Yes.
Felix Frankfurter: -- and he was examined and that's all you've got.
Oscar H. Davis: That's right, no I would --
Felix Frankfurter: That's what I mean.
Oscar H. Davis: Oh, there is one other bit of evidence which Mr. Rein I'm sure inadvertently neglected to mention, on which the inquiry officer and the Board of Immigration Appeals did rely, that is that Rowoldt had filed a petition for habeas corpus in an earlier immigration proceeding in which he said that his membership in the Communist Party terminated in 1935 and this habeas corpus petition which was filed under his name was introduced into evidence in the administrative proceeding and the immigration inspector, the hearing officer relied both upon that statement that he was a member in 1935 and on his statements in the – at the hearing in 1947, which are reprinted in the record.
Felix Frankfurter: The gravamen of the problem which you are going to discuss (Inaudible) is was that means --
Oscar H. Davis: Yeah.
Felix Frankfurter: -- “member,” so that they don't gain anything from the fact that he said in the habeas corpus --
Oscar H. Davis: No, I just do that to correct what I'm sure was an inadvertent statement in answer to a question by the Chief Justice that there was no other evidence in the record at all --
Felix Frankfurter: Evidence of that -- give evidence (Inaudible)
Earl Warren: Is there -- what is the difference between what he said in the habeas corpus proceeding and what he said here in this --
Oscar H. Davis: No, I --
Earl Warren: There is no difference, is there?
Oscar H. Davis: Well there is a statement there -- he was making it on his own and not in response to enquiry. I was trying to indicate that it isn't a question of a man being questioned by authorities because in a wholly separate immigration -- a wholly separate court proceeding in which his own lawyer filed a petition for habeas corpus --
Felix Frankfurter: I don't know if anybody else made the suggestion I'm pretty -- I certainly didn't mean -- but mostly to imply that he was coerced in what he said.
Oscar H. Davis: Well --
Felix Frankfurter: All I was suggesting is that what he said is awfully meager and exiguous.
Oscar H. Davis: Well, it is not very great but we think it is sufficient for the immigration authorities to base their find of deportation. Now what did he say? He knew the difference between the Communist Party and Workers' Alliance because he said. He said that he left the Communist Party in 1935 when he was arrested for deportation, but he continued in the Workers' Alliance for two more years and he indicated that he knew the difference about in way you pay dues between the Workers' Alliance and the Communist Party, but he said there were no books, dues books, for the Communist Party but he thought there were for the Workers' Alliance. He also said that he had been a member of the, I believe the executive board of the Workers' Alliance and had a local unit membership as far as that was concerned. So we think here as distinguished from the Garcia case which I mentioned, there was a clear distinction as to in his mind between membership in the Communist Party and membership in the Workers' Alliance. And he knew that he had joined the Communist Party, there was also to put to one side no question that was a communist front organization of any kind, it was the Communist Party, that is the only organization he was charged with and the only organization besides from the Workers' Alliance that he talked about. And as I say he left only when he was arrested in the deportation proceedings. Now he said he paid dues to the Communist Party, he said he ran the Communist Party bookstore in Minneapolis for awhile, and then he said he was a kind of salesman there and if they sold books by Strachey, Marx, and Lenin socialist stuff like that he said. He attended party meetings because –-
Earl Warren: He also said that although he was unemployed and out of funds that what he did at that bookstore he did without any compensation whatsoever.
Oscar H. Davis: Yes, that's right Mr. Chief Justice.
Earl Warren: It wouldn't indicate the very permanent, very lucrative employment --
Oscar H. Davis: Oh no, we don't mean to suggest that he was employed by the party as a party official. We do mean to suggest that he was helping the party to further the party's own purposes, that he was from his point of view perhaps idealistically or philosophically, but that he was aiding the party, which of course wanted to disseminate its literature and he said this was the official bookstore of the Communist Party, so he was aiding them in the dissemination of their literature.
Felix Frankfurter: Mr. Davis if I may say so, you're a very scrupulous lawyer and very fastidiously careful of your responsibilities of the court (Inaudible) in the course of the argument, but you said he ran the bookstore. But if you take the full testimony, one sees a little (Inaudible) attached to a word like that, you said I ran it, why did you run it? 241 (Inaudible), “What sort of bookstore?” (Inaudible), “Did you own the bookstore?” “No, I didn't get a penny there.” Q, “What was the arrangement there?” “Hey I was a kind of a salesman and there was the Communist Party ran it.
Oscar H. Davis: Well I said so --
Felix Frankfurter: All I'm saying those words, one has to weigh them very carefully.
Oscar H. Davis: That's true Mr. Justice. But the responsibility of the weighing is with the immigration official.
Felix Frankfurter: I appreciate that, that's a fair statement.
Oscar H. Davis: And --
Felix Frankfurter: It's very different for him to say very assertively, I ran that shop and then say in a loose way, and then he said well as a kind of a salesman, I didn't get paid anything. For all I know of what you might have elicited, but they said if you want us to give you food, you go and spend three hours or four hours there.
Oscar H. Davis: Yes, but he didn't bring out any such thing. And he was --
Felix Frankfurter: The inspector didn't either that's my point.
Oscar H. Davis: He was helping the Communist Party in the dissemination of its official literature.
Earl Warren: Have any of those books that he mentions that have been found in any library in this country, couldn't they?
Oscar H. Davis: Oh that, there is no doubt that's true Mr. Chief Justice.
Felix Frankfurter: One hopes so.
Oscar H. Davis: But many of the activities of the Communist Party, of persons of the Communist Party can be done by other people, yet nevertheless Congress has declared that if you do them for the Communist Party, if you're a member, and you're an alien, you are deportable. It doesn't make any difference we think that the things that he did for the party such as attending meetings or paying dues or the last thing that I'd like to mention, the petitioning of the various governmental bodies, it doesn't make any difference that, that could have been done by representatives of other parties or other organizations. He did them for the Communist Party knowing it was the Communist Party which was a distinct and active political organization in Minneapolis at that time.
Felix Frankfurter: But a purpose, a purpose within what Senator McCarran said may so (Inaudible), all those physical acts that may illuminate those acts. You get a different significance, anything (Inaudible) yes I joined it, I take you, so what are you going to do about it? I ran a bookstore. That isn't this record.
Oscar H. Davis: Perhaps this is a good point Mr. Justice to go into the question of Public Law 14 and Senator McCarran's statements in relation to that.
Earl Warren: Didn't this man also say that he didn't know there was anything illegal --
Oscar H. Davis: Oh yes.
Earl Warren: -- wrong with the party and do you know whether the Communist Party was the legal party in the Minnesota and was on the ballot at that time?
Oscar H. Davis: I do not Mr. Chief Justice.
Earl Warren: Could you find out --
Oscar H. Davis: But the Court said last year that it was something like almost 48 states, so that I would assume that it was true in Minneapolis at that time, but I will try to find out and inform the Court. But on --
Earl Warren: So far as the showing the man's conscience membership in an organization that advocated the overthrow of the government by force and violence there might be some evidence of his good faith might it not if the --it's a regular party, if it's on the ballot, recognized by a state, particularly when he is a foreigner in this country and is asked to join a political party.
Oscar H. Davis: Mr. Chief Justice, good faith under the statute is not an excuse. The Court has twice held, and we think it's supported by irrefutable legislative history, that Congress would pay no attention whatsoever, I shouldn't say pay no attention, Congress did not make it a prerequisite of deportation, that should be conscious and aware of the unlawful objectives of the party. The Court so held first in the Harisiades case and very explicitly in the Galvan case.
Earl Warren: Then you do say that it makes absolutely no difference whether this man was a nominal member or whether he was an active member in the party.
Oscar H. Davis: No --
Earl Warren: There can be no difference.
Oscar H. Davis: No Mr. Chief Justice, I don't say that.
Earl Warren: All right, then let me ask you this? Could it not bear and does it not bear in the absence of other testimony on whether he was an active member or merely a nominal member of the party when he said we didn't give any thoughts to those things in those days, we were thinking of bread then we were thinking of a place to -- for shelter and that we joined that, we joined those parties in the belief that that those people would bring it about. Doesn't that have something to do in determining whether he was merely a nominal member or a whether he joined it as a, for the purpose of advocating their political policies.
Oscar H. Davis: Mr. Chief Justice if you accept this we think you have to because Congress made it the rule that it is unnecessary to show any conscious awareness by the alien of the unlawful objectives of the Communist Party and as this Court held as I say in these two cases, we think that those -- those factors that you mentioned are irrelevant in determining whether he was a nominal member. There are other factors that might be considered in determining whether he was a nominal member, but we think those factors as long as he knew, it was an active distinct, political organization which he was joining and not, we'll say a social front or a community settlement operation or something other like that, we think those factors are irrelevant. But I do agree that there is a distinction between nominal and active membership and if I may I'd like to go into that --
Earl Warren: Would you say that his membership must be purposeful?
Oscar H. Davis: Only purposeful in the sense of aiding activities of the party not the unlawful activities.
Earl Warren: Regardless of whether he knew if they were or not.
Oscar H. Davis: Well he knew that he was going to the court house to try to get more relief legislation, he knew that. We don't --
Earl Warren: He says that he didn't know that they advocated to overthrow the government by force and violence and he first did not agree with it.
Oscar H. Davis: Yeah we think that that is wholly irrelevant and we think that's preciously what the court held in the Galvan decision and earlier in the Harisiades decision.
Earl Warren: And you think this -- may I ask just this one more question, do you think there is any difference in meaning between purposeful membership and conscious membership?
Oscar H. Davis: Yeah -- no I think those are the same.
Earl Warren: Are the same?
Oscar H. Davis: The same, but we think that in either case there has to be the element of a knowledge or an awareness of the unlawful objectives of the party.
Earl Warren: You say there must be a knowledge?
Oscar H. Davis: No there must not -- in neither -- under the term purposeful or conscious is an element -- under neither of those terms is an element that he knew that the party favored unlawful objectives.
William O. Douglas: Maybe answer this question Mr. Davis, before the inspector that conscientiously bound of something, was bound to find that this fellow joined the Communist Party in lieu of the representative -- in view of what they meant bread, as we call it, just as he would have joined the Republican Party, if there was such a thing, whether you are non partisan (Inaudible) Minnesota, if they had come in and said (Inaudible) suppose the inspector has found that as a fact?
Oscar H. Davis: That would be enough Mr. Justice.
Felix Frankfurter: To what?
Oscar H. Davis: That would be enough to deport him, if he --
Felix Frankfurter: It would --
Oscar H. Davis: Yes, it would be enough to deport him that he has --
Felix Frankfurter: And I -- and I don't understand what (Inaudible) talking about.
Oscar H. Davis: Well perhaps --
Felix Frankfurter: All right.
Oscar H. Davis: Public Law 14 which is this act of March 28th 1951, which is printed at page 3 of the government's brief, was a doctrine response to this particular situation. When the act, when the Internal Security Act of 1950 was passed and it strengthened and made more rigid the deportation exclusion requirements with respect the so called subversive aliens, the Attorney General adopted the view that an involuntary member of the Communist Party was -- came within the exclusion provisions that is mostly the exclusion provisions and that meant not only an involuntary member of the Communist Party but of any Communist front organization. Now in countries -- and he carried this over to fascist organizations, that meant that in countries behind the iron curtain and countries like Germany, Italy and Spain if you were a member, no matter involuntarily or by operation of law or (Inaudible) if you are a member of some trade union which in the Soviet Union of course is affiliated with the Communist Party or in Spain if you are a member of some organization which require that you be a member of the fascist party by operation of law or in Yugoslavia, or Italy, or Germany, that you could not come into this country. The Department of State took the other view. They said in view of the whole history of these issues in this country since 1918 or 1920 an involuntary member or a member by operation of law or a membership while a minor is not included or under the statute, you are not a excludable or deportable in that situation. And this statute in March 1951 Public Law 14, was passed primarily to remedy that situation to allow people abroad, who had been a member of the trade union in Germany, or in Yugoslavia, or in Soviet Union or the Ukraine to come into country and not to be barred and it was in the course of that discussion that all of these things which have been read and which are included in both briefs were stated. Now as the Court held in the Galvan case and we agree the -- what Congress was doing was not something new, Congress was trying to put into words what had been the law as it was understood by court decisions and administrative decision prior to the Attorney General's reversal of its position in 1950 and has declaration that that involuntary membership while you are minor was covered by the law. And they were -- the legislative history of that statute is replete with statements that they weren't trying to establish something new, that they were trying to go back to the law as they understood that it had been administered by the courts and the administrators since 1920. We also agree with what the court said in the Galvan case that the three statements, the three elements which are included in the law that is minority, membership by operation of law, membership to obtain the necessities like where necessary for such purposes are not the only elements which can be considered that -- an element from which Senator McCarran grew from the Colyer against Skeffington case could also be considered. Now what was that drawn from Colyer against Skeffington. It was unconscious accidental membership by people who didn't know what they were joining and this is what Judge Anderson had before him and this is the only portion of Judge Anderson's opinion that Senator McCarran was relying on. It's people who were members of the socialist party in New England in 1918, '19, whose -- local party units said let's change the names of the Communist Party and was adopted by a vote and they automatically went on to the roads of the new party. They had no part in this change. They didn't even really know what the Communist Party was. It was that accidental, unconscious, artificial membership which Judge Anderson was discussing in Colyer against Skeffington and which Senator McCarran was discussing. Well you don't have that here.
Earl Warren: They knew -- they knew in that case that it was a political party, didn't they?
Oscar H. Davis: They thought it was just a change in the name of the old party, which they were already members of.
Earl Warren: Well that was a political party?
Oscar H. Davis: Oh! Yes but the Socialist Party was not a party which anyone said was an excludable or deportable party. And they were -- it was as if they were members of the Democratic or Republican club in some state of the union and somebody came along and said let's change the name to the Communist Party and they said okay, that's sounds like a good name and it was changed. That's the kind of situation which Judge Anderson had before him and it wasn't a kind of a situation you have here where this man joined the Communist Party knowing that it was a party and not -- he wasn't just carried over on the rolls from a preceding party which is the situation that Judge Anderson had before him. I stress again that --
Earl Warren: How about the present time insofar as some of the communist front organizations are concerned, perhaps a man joined at the time when it really wasn't communist front organization but it grew into one.
Oscar H. Davis: Well --
Earl Warren: And he remained, he remained a member of it, is he deportable?
Oscar H. Davis: Well Communist front organizations Mr. Chief Justice (Inaudible) really into a different category because Congress in the 1950 act specified the Communist Party as a membership in which was a ground for deportation. It did not necessarily specify any other organization by name and it also provided that if you are a member of Communist front organization of a certain type and could show that you didn't know the purposes of it and resigned as soon as you did, that that would excuse you from deportation. So I think it's fair to set to one side the problem of Communist front organizations which we don't have here. We have here membership in the Communist Party per se and only that.
Felix Frankfurter: Mr. Davis may I suggest that you intellectually (Inaudible) what subject (Inaudible) of what seems to me the (Inaudible) and Judge Anderson was dealing here, namely of whose platform and preferences they have no real knowledge. The essence for the business in cases of Judge Anderson was that these fellows didn't -- had no knowledge of the platform and purposes, no real knowledge and I find it very difficult to differentiate between putting down the time of those fellows, the Socialist Party and putting up the time in the Communist Party and this fellow so far as the record goes, hearing somebody will get you bread and thing (Inaudible) for that. I don't see that one man has anymore real knowledge of platform and preferences than the other. That qualification can be very important to us and I stress, I don't mean to ring the changes too much, but the fact that Senator McCarran yielded to that argument is for me as may refer from Galvan (Inaudible) powerful.
Oscar H. Davis: I understand that Mr. Justice. I have these three things to say. In the first place it must be recalled that Judge Anderson took the view of the statute in 1918 which was rejected by the Circuit Court of Appeals and rejected by Congress, that there must be some showing of personal knowledge or advocacy and I think that by --
Felix Frankfurter: I'm not referring --
Oscar H. Davis: (Inaudible) yes, but I think that color, his use of language. Second, I do not think that when Senator McCarran was referring as he did just to this portion of a long opinion by Judge Anderson and not to any others, that he meant then to incorporate sub silentio and as the Court held in the Galvan case, he did not incorporate at all, the notion that the alien must be aware of the unlawful purposes of the party.
Felix Frankfurter: And they were --
Oscar H. Davis: There was no proof at all in the Galvan case, I mean that was no proof or at least no finding that Galvan knew the purposes of the --
Felix Frankfurter: Oh yes, look at the woman, I forget with all that testimony.
Oscar H. Davis: But there was no proof that he knew of the unlawful objectives of the party, there was proof that he was a member of the party and the Court said even assuming that he didn't know of the membership of the party, lawful objectives of the party, his membership was not nominal, even assuming as he says, that's what the Court said there.
Felix Frankfurter: I'm not going to question of unlawfulness, before you get to unlawfulness, it must be unlawful about something, what I'm going through is that qualifying phrase to which I called your attention --
Oscar H. Davis: Well, Galvan knew the party was into -- he was a trade union official. He knew that the party was interested in trade union activities. There was some evidence that he had some knowledge of party classics, what do we have here? The party at that time was interested in trying to obtain better relief measures, different kinds of legislation. Rowoldt by his own statement was interested in that. He apparently went with members of the party to the courthouse and the other people concerned with relief measures in order to petition for changes in those phases, now that was a purpose of the party at time which he participated in.
Felix Frankfurter: Galvan abstained from joining because he didn't want authority to -- he knew it was an undesirable thing to join -- not undesirable, dangerous to join the party. That's a very different thing for a man going around making a speech when all the farms in Iowa were knocked down for nothing and farms were burnt and (Inaudible) mortgages (Inaudible)
Oscar H. Davis: It maybe different Mr. Justice, but we think that Congress said that, that made the determination to that kind of person, if he knew he was working for a purpose of the Communist Party, which this man did I think undoubtedly.
Felix Frankfurter: You think? That almost (Inaudible)
Oscar H. Davis: There isn't --
Felix Frankfurter: Complete indifference, complete indifference.
Oscar H. Davis: Just on the basis of his own statement, it's a fair inference which the administrative officials could draw on the basis of his activities, his working at the bookstore, plus his knowledge, incorrect though it maybe, of party classic, that he had a purposeful intention to aid party activities in Minneapolis at that time. I think that that's a fair inference.
Felix Frankfurter: You do agree that one must find in what appears in this little record and allow it on the basis to say that he had a purposeful interest in that party, (Inaudible) party.
Oscar H. Davis: Yes I do, and I think that, that --
Felix Frankfurter: (Inaudible) party?
Oscar H. Davis: Yes, but he was a member of the Communist Party. He wasn't a member of the Republican Party or the Socialist Party or the Farmer-Labor Party or the Democratic Party, and he was active in that party as a part of. There is nothing else in the record to show that he mistook it for some other party or that he wasn't interested in what the party was doing. Now the party political activities at that time took the roll, the shape, that put many parties or many organizations including the two great major parties were doing, trying to get relief in the broader sense for the impoverished and depression stricken people in the country and that's what the Communist Party was doing in that case.
Felix Frankfurter: I know and you must have know perhaps now, but I know (Inaudible) extremely otherwise intelligent people were non-political, were not interested in any other party, but it would be in if it's in a particular crowd that said we are going to get bread, are we going to get an opera house from Washington?
Oscar H. Davis: But Congress meant that --
Felix Frankfurter: That is not a purposeful interest in the party as a party. A party means carrying out political objectives.
Oscar H. Davis: Galvan carried out no other objectives from the type from this man did, he worked in trade union activities.
Felix Frankfurter: I'm indicating to you the difference. He knew enough that he didn't want to join it, because it would hurt him, the woman who was, I forget her name --
Oscar H. Davis: Yes, but it would also aid him. He knew that if he joined the trade union it would -- if he joined the Communist Party it would help him in his trade union rise and a trade union hierarchy.
Felix Frankfurter: This fellow's testimony is only indifferent to parties, but an affirmative reason of the most pressing kind of economic needs, to be fulfilled.
Oscar H. Davis: It isn't the personal kind of economic need which you might have and which was possibly present in the Garcia case, the other case in which we moved for a remand, where there was some indication that this impoverished Mexican thought was going to shoes for his children from the Communist Party.
Felix Frankfurter: For all you know this maybe true in this case. Is that a general indication that here people all about it, and all I know (Inaudible) were in need of daily support, daily sustenance, see that's the (Inaudible) for me.
Oscar H. Davis: That's right, but that's political activity, if you go and talk to the courthouse, you talk to people who are running things as he said, if you disseminate their literature -- the literature of the party that falls within the ordinary concept of political activity. He may have been doing it only because he thought that this was something that was a good for all the people, but Congress has said that doesn't make any difference, if you affiliate yourself by membership with the Communist Party and undertake these activities for that party, you are deportable. It's clear and it's clear that he -- at least it's a fair inference, and I myself would draw that inference on the basis of this record, that it wasn't a personal compelling need for himself, that is to get shoes or food for himself, which caused him to enter these activities, but a general joining up with a group, which was trying to get it for all the people as he called in that region.
Felix Frankfurter: You think that no rationale inference the other way could be drawn?
Oscar H. Davis: Pardon?
Felix Frankfurter: You think that no rationale inference the other way?
Oscar H. Davis: Oh no. I say that the choice for rationale inferences is for the administrator and --
Felix Frankfurter: If it is, then there comes into play the general attitude which this Court had laid down, not only as to de-nationalisation cases but as to deportation cases. You want to (Inaudible) before deport on conflicting evidence, but Tisi and Tod is to me a very different situation.
Oscar H. Davis: In Tisi and Tod, the alien denied that he knew, he was an Italian who knew no English, that he denied that he knew that the pamphlets which he was distributing advocated the overthrow of the government and Mr. Justice Brandeis said there was no evidence by the government to the contrary, but there was other evidence in which a rationale inference could be drawn.
Felix Frankfurter: I'm not suggesting that he must have conscious -- that he was violating the law, that's out as far as I'm concerned.
Earl Warren: Mr. Davis, do you say that you could make a rationale finding that this man had no knowledge of the objectives of the party and that on the other hand you could have a finding which would be rationale to the effect that he did have such a knowledge and that, that was within the jurisdiction of the administrative officer. He therefore under your theory would have a discretion to exercise in the premises, but is there not some standard under this statute that he must conform to if he is going to deport these people?
Oscar H. Davis: Yes.
Earl Warren: Now what is the standard please?
Oscar H. Davis: I think the standard was laid down in the Galvan case, and I think stressing again, but I don't think it was new in the Galvan case. I think it was a standard which had been true of the administrator of judicial interpretation of comparable statutes back to 1920, that is you must find a voluntary membership, not under duress. You have a find a membership while you are of age not a minor. You have to find a conscious membership that is he knew that he was joining the Communist Party as distinguished from the Workers' Alliance or say or the Republican Party or the Farmer-Labor Party and it must not be an accidental, artificial or unconscious membership in that party. When you fulfill those standards and the decision on the facts rest with the administrators we think that the function under the statute had been performed properly.
Earl Warren: But do you not think that under Galvan it was least intended to convey the impression that he must be an active member, a man who knew what he was joining and was taking steps to carry out the objectives of the party?
Oscar H. Davis: Not the unlawful objectives of the party. The objectives of the party -- the Communist Party as history has shown has a very series of objectives. The ultimate objective maybe the unlawful overthrow of the government, but there are medium objectives or median objectives in which they have -- try to obtain certain results. Now we don't think that under Galvan there has to be any showing at all that he wanted to obtain the ultimate objective of unlawful overthrow of the government. We think that it's sufficient as we think there is showing in this case if he wished to obtain or to help him obtaining the immediate objectives of the Communist Party at that time and there is sufficient in this record we think to show that he did wish to obtain the immediate objectives the obtaining of relief, changes in relief regulations new legislation and that he was active in that respect. It's also one of the intermediate objectives of the Communist Party to disseminate their literature, that's true.
Earl Warren: And may I ask you this question, assume, assuming that in this case this man joined the Communist Party believing that its only interest was to, in the manner in which he said, going to the court house and influencing the legislature to give bread to the hungry people of this country, that's all he knew about the party, that's all he did was to join and show an interest in that phase as they were, do you believe that Congress intended such a man to be deported?
Oscar H. Davis: Yes, yes Mr. Chief Justice I do on the basis --
Earl Warren: And that's what you are confronting here.
Oscar H. Davis: Yes on the basis of the legislation, legislative history of this particular statute in 1950, its predecessor in 1940 and back to the anarchist deportation statute of 1918 and 1920 which we have set out in our supplemental brief to the respondent on re-argument, I'll come to that. We think that it's clear in our view that Congress did intend, that it made a conscious deliberate choice to deport a man just to the type that you had mentioned if he knew he were joining the Communist Party, that a thought that it might get otherwise worthy people in to the net but it thought it was worthwhile in order to secure the deportation of those whom it wished to get and particularly because it thought of aliens as temporary guests, that word is not the government's word, that's the words of members of a Congress who supported this legislation. They thought that all aliens as temporary guests. And they were desirous of ridding the country of people whom -- these people whom they consider undesirable. And I think they made a conscious choice to get any person, even the type of person that you mentioned if he deliberately chose to join the Communist Party even though he did not know of the unlawful objectives of the party or --
Speaker: Supposing – supposing he produced five witnesses who testified that he thought that this was a charitable organization that he could join?
Oscar H. Davis: Well --
Speaker: United Givers (Inaudible)
Oscar H. Davis: Well that would be different Mr. Justice because that wouldn't be --
Speaker: That was the Chief Justice's question.
Oscar H. Davis: Well I thought he said that he knew that he was joining a party, but he thought the party had these -- a political --
Speaker: You have to show at least that he knew he was joining a political party.
Oscar H. Davis: Well he would have -- yes. And we think it sufficient to show that he knew --
Speaker: And what is there in the record that shows that?
Oscar H. Davis: That he said he is the member of the Communist Party. That that is sufficient, that is enough --
Earl Warren: Well that's a different question whether he is a member -- as I understood it, the justice asked what is there to show in there that he consciously joined a party for political (Inaudible)
Oscar H. Davis: If I may give you an analogy Mr. Justice -- Mr. Chief Justice, some statutes provide that membership of various commissions shall be bipartisan and the person have to nominate a Republican or a Democrat. It would be enough if the President nominated a man who said, I am Democrat, that's all. I am a member of the Democratic Party, given that he wouldn't go beyond it, because he says I am member of the Democratic Party. If someone came along and if someone came along and said, he isn't a member of the Democratic Party, he never registered, he never voted, he never contributed so forth, then an issue in fact might be raised. But here you have a man who says I was a member of the Communist Party, and I knew the difference between the Workers' Alliance --
Felix Frankfurter: Did he say anywhere I'm asking, I don't know, did he say anywhere, yes I was a Communist --
Oscar H. Davis: No, he said I was a member of the Communist Party.
Felix Frankfurter: He never said I am a Communist.
Oscar H. Davis: I don't think that --
Arthur J. Goldberg: (Inaudible)
Oscar H. Davis: I don't recall that there was any statement of that type. He said I was -- They asked him, “Were you a member of any organizations?” He said, “Yes, I was a member of local, certain local hotel and restaurant workers organization” “and what organizations have you belonged in the past,” “in the past the Workers' Alliance, the Communist Party.”
Felix Frankfurter: I have known people who joined Republican and Democratic clubs (Inaudible) like myself in order that they may come within that kind of a (Inaudible)?
Oscar H. Davis: Well that is sufficient.
Felix Frankfurter: Well I know but a fellow like that wouldn't say I'm a Republic or a Democrat, he'd say I'm a job hunter?
Oscar H. Davis: [Attempt to Laughter] My present point is that if you have a record where a man says, I am a member of the Communist Party, and there is nothing else. If there were what Mr. Justice Harlan suggested then you would have an issue of fact. And it maybe that in a case like that, there wouldn't be some -- any evidence to support the view that he was a member of the Communist Party, but you don't have that case here. You have no suggestion really we think that this was a charitable organization or the United Givers Fund or a community chest operation or something like that. All the indications are that he knew that it was a party which was organized in his area in Minneapolis and undertaking certain activities.
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: Yes, he worked, he worked in the bookshop and he said they were these party classics and that's also ground for drawing the inference that he knew what he was doing.
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: I do not know, the record does not reveal but he said it was the official outlet of the Communist Party in Minneapolis, he said that himself.
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: There is nothing in the record, but I think it is matter of judicial knowledge that Communist Party is interested. One of its prime activities in any area where it works is the dissemination of its literature in order to recruit members and to convince people of its cause and that's a fair inference and that's what he was engaged in --
William J. Brennan, Jr.: (Inaudible)
Oscar H. Davis: Well some of them are, but there is no indication in this record whether that was done. Just before the recess, I would like to stress that the, we think there is no need for a remand in this case because of the fact that it's exactly the same standard which Galvan said should be followed by the administrators, were followed before that is, they, Galvan did not set forth any new standard which the administrators should thereafter conform. These were standards which the administrator, administrator had supposedly been following except for the short period of the Attorney General (Inaudible)
Felix Frankfurter: The question I preserved for you Mr. Davis is whether after Galvan the departments issued instructions to the inquiring order?
Oscar H. Davis: After Galvan I do not know but I do not think so.
Earl Warren: Now why then, why then Galvan made no change would you ask to remand that other case, Garcia case in the light of the Galvan?
Oscar H. Davis: Because on a reconsideration of the facts in that case the Solicitor General came to the conclusion that there was a very grave doubt and an injustice might be being done in that particular case because of the fact that the man was literate that he was, as he said starving that he might really meant to obtain food and shoes for his children that he didn't know the difference between a Communist Party and a Workers Party.