Earl Warren: Number 440, Clive Michael Boutilier, Petitioner, versus the Immigration and Naturalization Service. Miss Freedman?
Blanch Freedman: If it please the Court. The petitioner is an alien of Canadian nationality. He is 33 years old, was duly admitted to the United States for permanent residence in June 1955 when he was 21. He has lived in the United States ever since, working -- and working here, always self-supporting. By occupation, he is a building maintenance operator. He resides in New York City with his mother, who was a naturalized citizen and stepfather, also a citizen. His father is dead. And in addition, he has a large family of married brothers and sisters who lived in this country with their respective spouses and children. Petitioner appeals from an order of deportation that was upheld by the court below that is the Second Circuit. The order is predicated upon the combined operation of two provisions of the Immigration and Nationality Law. Section 241 (a) (1) of the 1952 Act, which renders an alien deportable if at the time of admission he was excludable. And to Section 212 (a) (4) of the Act which makes excludable an alien who at the time of entry is “afflicted with a psychopathic personality, epilepsy or mental defect.” Now, the responding charges that the petitioner at the time of entry in 1955 was afflicted with a psychopathic personality namely sexual deviant to which homosexual. The finding of psychopathic personality rests solely and exclusively upon admissions by petitioner of having engaged in homosexual acts before but principally, after entry. The evidence of record is, that prior entry in between the ages of 16 and 21, he had have about three to four experiences a year during which time he also engaged in heterosexual experiences. After entry and up to the time he was directed to appear before the Immigration Service some nine years later, his homosexual activities averaged about four or three times a year. These admissions were made by the petitioner at the Immigration Service upon interrogation by an immigrant inspector in January 1964 and it is in the form of a question and answer statement. On this statement of admissions of homosexual activity before but largely after entry, and of no medical evidence of any kind, the United States Public Health Service forthwith certified that at the time of entry, almost ten years prior, petitioner was excludable as an alien afflicted with psychopathic personality namely, homosexual. At the deportation hearing, petitioner submitted into evidence two medical reports of two imminent psychiatrists, who had examined him personally each a year apart and independently of the other. The medical evidence of the record establishes that the petitioner is not psychotic; that the petitioner is not afflicted with psychopathic personality. There is no counter-medical evidence in the case. On the contrary, respondent admits that it has not proved to furnish evidence that petitioner is psychopathic. Instead, respondent claims that such medical evidence is not required of it because it construes and applies the language of the statute that is afflicted with psychopathic personality to mean, an alien who indulges in homosexual conduct, even though such conduct is medically unassociated with psychopathic personality or any other medical condition. The respondent claims that its construction of the law is based upon it speedily that that was the intent of the Congress that enacted the 1952 Immigration Act. In short, the position of the respondent is that regardless of what the term psychopathic personality may mean to the whole world, to the Congress that enacted it, it was merely a rubric, a rubric by which homosexuals were to be excluded from the country. Now, petitioners submit that it is this interpretation and application of the statute to him that engenders constitutional infirmity. As construed and applied, the statute is vague, indefinite and denied petitioner due process of law. Because one, it contains no boundaries, no standards, no guide for its enforcement. And two, because it failed to give petitioner adequate notice that his homosexual behavior after entry could be used to establish the alleged excludable condition, psychopathic personality at entry. The constitutional deficiencies that stemmed from respondent's interpretation and administration of the statute led the Court of Appeals for the Ninth Circuit in the case of Fleuti against Rosenberg to hold the statute unconstitutional. And thereafter that -- that Court affirmed its decision in the very recent case of Lavoie against the Immigration Service that is now pending before this Court on the Government's petition for certiorari. The facts and issues in the Fleuti, Lavoie and the instant case are the same. The major problem that underlies the respondent's construction of the statute is that the actual language of Section 212 (a) (4) is medical terminology and in design and purpose relates to the exclusions of aliens afflicted with a condition that medically can be diagnosed a psychopathic personality whereas homosexuality or homosexual -- or homosexual relates to conduct, to behavior. There is no homosexual condition per se, thereof homosexual acts. Of course, a person who engages in homosexual practices may be a psychopathic personality but psychopathology cannot be inferred automatically from homosexual practices.
Abe Fortas: But why is --
Blanch Freedman: Alone.
Abe Fortas: I beg your pardon?
Blanch Freedman: Yes, sir.
Abe Fortas: Are you relinquishing the possibility that we might decide this just on the basis of an incorrect construction and application of the statute?
Blanch Freedman: Oh, no, sir. I come to that. I believe the -- we do believe and we so state in our second point.
Abe Fortas: In other words, it's possible that this case could be decided without reaching a constitutional issue here?
Blanch Freedman: That is correct, sir. That is correct.
Abe Fortas: Because it's not your argument, is it, that the phrase “psychopathic personality” is a phrase that is so at large that there's -- there has no medical -- no discernible medical meaning?
Blanch Freedman: On the contrary, sir. We say psychopathic personality as it appears in that statute has a describable and ascertainable --
Abe Fortas: That's what I thought your argument was --
Blanch Freedman: Yes.
Abe Fortas: Let us say that it has a reasonably definite meaning and that the Service in the court below went contrary to that reasonably as attainable and that with meaning in this particular case.
Blanch Freedman: That is correct, sir. If I'm doing --
Abe Fortas: But if that were -- but if it that were clear from the legislative history that Congress itself gave a particular meaning to that word, to those words, then I suppose you would reach the constitutional --
Blanch Freedman: Then we would have to reach the constitutional question. However, sir, as I will come to it, I do not believe that the respondent has interpreted the constitutional history correctly. I mean, that that is the legislative history. Now, that -- you cannot deduce from homosexual activity alone. A psychopathic condition or psychopathic personality is not only the opinion of the enumerable side -- authority cited in counsel's brief and in the amicus brief of the homosexual lower form society, which is before this Court. It is also the opinion of Doctor Paul G. Smith, the Senior Service Surgeon of the United States Public Health Service and Chief in Psychiatry at the Public Health Service Hospital at New York. Now, Dr. Smith testified in the matter of (Inaudible). He had also testified so -- that is certified the alien in that case to be a psychopathic personality under facts that are similar to his certification of the petitioner in this case. Yet in the (Inaudible) case, he testified that he was in accord with medical opinion that sex deviate is not ipso facto, a psychopathic personality. He agreed that to arrive at such a medical finding, there must be something more than sexual deviation. The doctor was then asked how we reconciled his certification of the alien of the psychopathic personality with his professional opinion and to this he replied and I quote, “That as a qualified physician, he was fully in accord with modern psychiatric theory but that as an employee of the United States Public Health Service, he was bound by any instruction of the organization addressed to his employees. Thus, it is evident from knowledgeable sources than in the given situation whether the homosexual conduct denotes an excludable pathologic condition is a matter to be established only by competent examination of the alien by qualified physicians and not merely upon admissions of homosexual practices that have been extracted by an immigrant inspec -- inspector upon interrogation with the view to possible deportation.” The administrative interpretation of the statute actually substitutes homosexual behavior for the psychopathic condition stated in the law and it is this very substitution that creates the vagueness in which the law is left without enforcement of the admi -- of the administrato -- of administrative interpretation without guidelines, without boundaries, without tests of any kind.
William J. Brennan, Jr.: Am I right it made the Congress -- Congress since have it expressly the words “sexual deviation” on the statute now?
Blanch Freedman: That is correct.
William J. Brennan, Jr.: They have both psychopathic personality and sexual deviation in the statute here.
Blanch Freedman: That is correct, sir. That was done in October of 1965. That was several years after -- many years after the situation that relates to this case.
William J. Brennan, Jr.: Well, I gather the report said that was done only to make clear that that's what they meant by psychopathic personality in the first place?
Blanch Freedman: Well, clearly, they're expressing then I would say doubts that prevailed in the section -- that prevailed in the statute, if that is what they are clarifying. But of course, it's a little difficult to accept a clarification of this Congress to what the 1952 Congress really had in mind.
William J. Brennan, Jr.: Well, I didn't say including sexual deviation?
Blanch Freedman: They never said that.
William J. Brennan, Jr.: They said, “Psychopathic personality or sexual abuse”.
Blanch Freedman: That's right. That is correct. It is enumerated as a separate category.
Potter Stewart: I suppose that was in response to the Fleuti decision in the Ninth Circuit, wasn't it?
Blanch Freedman: That is correct, sir. They say that is in response to -- that is the reaction of the 1965 Congress --
Potter Stewart: To the Fleuti decision.
Blanch Freedman: To the Fleuti decision.
Potter Stewart: Yes.
Blanch Freedman: Counsel for the Government is not wholly unmindful that there are no boundaries and there are no real test/criteria and so they say in their brief on page 36, “There may indeed be cases where it is difficult to determine whether and in precisely what sense an individual should be deemed homosexual within the intent of the statute”. Now, we submit, one may rightfully ask by what standard or test the Government determined that the petitioner in this case should be deemed a homosexual within the intent of the statute as construed by respondent. Now, there is no answer disclosed and their brief is significantly silent. Now, assuming as respondent contends and Congress intended to bar homosexuals from to for from immigration, we are still left without an adequate standard or criteria to determine whom the label “homosexual” covers because the term “homosexual” does not described an ascertainable condition. At best it denotes a category and that category is also undefined and lacking insufficient specificity to withstand the constitutional challenge of vagueness. But this difficulty, this lack of standard does not exist when the statute is enforced as agrees and as we believe Congress mandated. Within the homosexual behavior that is reached for exclusion under the law, is that which is medically ascertainable and found to be pathologic, namely, that denotes a psychopathic personality. The second aspect of the statute's vagueness that results from respondent's construction and application is that it fails to apprise petitioner of what respondent now claims made him excludable in 1955 and further failed to advice him that post-entry homosexual behavior could be made the basis for his expulsion from the United States. There is nothing on the face of the statute to indicate to petitioner at entry that psychopathic personality meant homosexual or sex deviant. The words homosexual or sex deviant or sexual perversion, do not appear either in the exclusion statute or in the deportation statute. Furthermore, there was nothing in the visa application that petitioner was obliged to execute in Montreal, Canada that in anyway gave him any warning. The visa application lists all the excludable classes but it makes no mention homosexual, sex deviants. In fact, it does not even list the term psychopathic personality. The law may attribute to petitioner knowledge that the statute excluded from admission psych -- first aliens with psychopathic personality. But how can he be charged with knowing what is not a fact. That indulgence in homosexual practices means that one is so afflicted. To urge now as respondent does that notice and warning can be found in the legislative history and in the particular committee report, I submit, strict as a legal presumption of knowledge beyond legality. We submit, where forfeiture of residence is predicated upon conduct held to be proscribed or utilized as the basis of depriving an alien of the right to remain here. Due process requires that that statute be clear on its face. This is supported by the United States against Harris, as supported by Jordan against De George. It's supported by this Court by the application and rationale of the recent case by this Court in Giacco against the State of Pennsylvania. In theory, petitioner's post-entry conduct is not the ground for his deportation. However, it was the persuasive evidence to establish that -- to establish the alleged excludable condition and entry and that the bottoms the finding of deportability against petitioner. The Government's odd disclaimer of the use and reliance upon post-entry conduct in this case I submit, it's truly errant and non-sense. Permit me to cite that one example --
Abe Fortas: So there really any issue about that. Is there any issue as to that that is -- as I read the record, I don't -- I gather there is no dispute that this man was homosexual prior to entry? When is that issue was not made, I don't want to assert that it was or was not. But there's no issue presented at the time of this litigation as to whether he was or was not a homosexual at the time of the initial entry into this country, '51 was it or '52?
Blanch Freedman: His entry was in '55.
Abe Fortas: Is that the first one?
Blanch Freedman: Yes, his entry in '55.
Abe Fortas: ‘55.
Blanch Freedman: To that, may I submit the following thoughts for this Court. The medical evidence and it is supported in the brief by our --
Abe Fortas: I'm not talking about medical evidence, I'm talking about the legal issue, is that the legal issue presented? Was there any contest as to whether --
Blanch Freedman: There's no contest that he admitted certain acts. There was no contest -- contest that he described himself when he was asked, “Do you consider yourself a homosexual? ”
Abe Fortas: And there was no issue tendered?
Blanch Freedman: No. There was no issue.
Abe Fortas: Does he --
Blanch Freedman: There really was no issue tendered because whether or not someone is a homosexual is something that can only be -- even that issue can only be described medically and that has never been done in this case.
Potter Stewart: I thought that your claim was -- perhaps something at the amicus brief with that word is an adjective and not a noun.
Blanch Freedman: That is correct.
Potter Stewart: And that it's inaccurate to use it as a noun and that there's no issue in this case as to his having engaged in some homosexual acts --
Blanch Freedman: That is correct.
Potter Stewart: -- on that or activity but it doesn't necessarily follow that he even medically, insofar as this statutory language has a medical meaning, it falls under that definition within that meaning, is that it?
Blanch Freedman: That is absolutely correct, sir. The Government -- I want to quote from the respondent's brief page 50, the last paragraph because the Government says, they did not use, they've made no reliance upon post-entry conduct and this is just one example of how -- of how it operates, “The evidence was in fact overwhelming and undisputed. The Government established that the hearing through petitioner's own admission under oath that beginning about 1949, six years prior to his entry actually it was only five years prior, and continuing on uninterruptedly to the date of the sworn statement, January 1964, petitioner had regularly engaged on an average of three or four times a year of homosexual behavior.” This pattern of activity extended over an instable of 14 and one-half years, expands the date of entry.
Potter Stewart: And there is no question about that as a factual statement, is there?
Blanch Freedman: That is a factual statement. But clearly, it was not petitioner's admission of three to four homosexual experiences a year over the five year period prior his entry. That really motivated the deportation proceedings against him rather it was his post-entry conduct over the ensuing nine-and-a-half years. Now, the constitutional significance of this, of this use to post-entry homosexual act is that in this case, they may well have been avoided. Had petitioner been informed by the statute that they could be used to establish a pre-entry condition of psychopathic personality for there is nothing in this record to show that petitioner's experiences were compulsive and not of choice. Petitioner could have and in all probability would have refrained from such practices from the time of entry as he has since these proceedings first gave him notice of the administrative interpretation of this statute.
Potter Stewart: These practices he lived -- he's lived in New York, hasn't he?
Blanch Freedman: That's right.
Potter Stewart: And these practices are criminal under the law of New York, aren't they?
Blanch Freedman: That is correct. And certainly --
William J. Brennan, Jr.: And suppose that -- there's no reason I suppose that the criminal laws there any -- any lesser deterrent is there than the threat of a deportation? I mean, if you're right --
Blanch Freedman: They have it -- I'm not too sure on the criminal law whether -- or whether just to what extent it is. I know we do have a law of sodomy in New York but the fact that he has never been convicted. Dr. Montague Ullman, who was the Director of Psychiatric Services in Minority Hospital in Brooklyn and Professor of Psychiatry at the State University of New York, examined the petitioner in March of 1964. And in his report, he states and I'm now quoting to what appears in the record on page 15 and 16, “The patient has sexual interest in girls and has had intercourse with them on a number of occasions.” Then skipping in taking the next sentence, “He has abandoned all sexual practices within the past several months because of his annoyance and disgusts with the problems these activities have brought about. His sexual structure still appears fluid and immature so that he moves from homosexual to heterosexual interest as well as abstinence with almost equal facility.” As I said before, the span of 14 years of homosexual activity that the respondent talks about, nine-and-a-half years had been post-entry. And as the Court in the Fleuti case recent whether a finding of deportability would have been entered against petitioner in 1965 based on the pre-entry conduct prior to 1955 or even whether on such facts the charge could have -- would have been brought is a matter of high speculation. The facts, however, that post-entry behavior is relied upon is some indication that the charge might not have been filed or a finding entered on free entry behavior alone. Respondent proffers to answers to petitioner's charge that he has been deprived of adequate notice. First, respondent says, petitioner is not entitled to fair warning because that doctrine is aimed at regulating conduct, and now I quote from their brief on page 42, “That the fair warning doctrine is not a device to enable an individual afflicted with a condition that if discovered would have barred his admission to this country and to so conducthimself as to avoid this condition becoming known to administrative authorities”. And that, we submit, completely reveals the failure or the emptiness of the Government's argument. Surely, the respondent in this case cannot have it both ways because it is precisely that there was a lack of proof of condition -- of conditions, psychopathic personality. Either before or after entry that this petitioner has been urging throughout and it is the respondent who has been insisting that it is not concerned about petitioner's condition, it knows how he is behaved and that that is sufficient. The point is that, where petitioner's condition is involved here it could not be hidden. But if behavior is involved, then it could have been controlled by him that in fact he does not suffer from any condition. Had respondent applied the statute to petitioner as it reads and as we contend it should be, namely, whether petitioner was afflicted with psychopathic personality that would be addressed to condition? But as to condition, respondent has offered no proof and so admits. But the fact is that, respondent has administered the statute as applying to petitioner's condition to beha -- the petitioner's behavior. And thus, the failure of the statute as construed and applied denied him the opportunity of knowingly refraining from engaging in certain conduct. This is not to hide a condition. Petitioner has concealed nothing because he has no condition. This is really to regulate behavior if the impact of the statute demanded it. Respondent's other answer to the issue of fair warning is that since Congress could retroactively make homosexual conduct a ground for deportation, it could also make future homosexual conduct in this country by an alien, a cause for his deportation whether or not its intentions were expressed clearly though Congress may but the fact is that Congress hasn't. It has not made post-entry sexual deviation of ground for deportation, at least not at the time that this case -- that the matter pertain to the petitioner. This Court has repeatedly held that deportation may be had only for grounds specifically expressed in the statute. The Immigration Amendment of 1965 added to the exclusion statute the phrase “sexual deviation”. It added nothing to the deportation section if the effect of the Government's order is to deport petitioner for something which the statute gave him no notice at the time of entry. Respondent's obvious that the use of legislative history is permissible to clarify statutory language. And thus, with the aid of relevant legislative history, the term psychopathic personality is embracing homosexual conduct becomes clear and definite. Now, resort to legislative history is meaningful and at times necessary but only when the statute on its face is not sufficiently clear. The term psychopathic personality, however, is not ambiguous. It is not -- it is known and established medical nomenclature denoting a medical condition and it is fully defined in medical literature. When courts have looked to legislative history, it has been to clarify statutory construction, not to rewrite the statute and create new and different provisions. For example, in the very recent case of the Immigration and Naturalization against -- Service against Errico. The Court, in the current term, examined the legislative history at Section 241 of the Immigration -- 241 (f) of the Immigration and Nationality Act. That section bars the deportation of an alien who gain permanent admission to the United States to the perpetuation of a fraud provided the alien is an immediate relative of a United State citizen. Now, the Court reviewed legislative history, not to make the term “fraud” means something that intrinsically is not fraudulent, but to determine whether the proved acts of fraud in that case were the kind that were contemplated and wherein the word -- within the intent of the legislative history. In the case at bar, the respondent resorts to legislative history, not to determine whether a proved medical condition of psychopathic personality was intended to be included under the statute. On the contrary, legislative intent is being used here by the respondent to escape proving its burden that the homosexual acts by the petitioner constituted a psychopathic personality. And it is this rewriting of the history that makes this constitu -- this statute as interpreted by Congress unconstitutional.
Earl Warren: Mr. Lewin?
Nathan Lewin: Mr. Chief Justice, may it please the Court. We believe that two questions are presented for decision in this case. The first is whether by providing in Section 212 (a) (4) of the Immigration and Nationality Act of 1952 for the exclusion from the United States of aliens who are “afflicted with psychopathic personality”. Congress intended to encompass within those terms an individual-like petitioner, who had engaged between the ages of 16 and 21 in homosexual relations on an average of three or four times a year and who was found by a Public Health Service physicians and psychiatrists to be a “sexual deviate” at the time of his entry into the United States in 1955. The second question is whether if Congress did so intend, its use of the words “afflicted with psychopathic personality” rather than more specific words directed to homosexual propensities or other deviations from normal sexual practice, make it constitutionally impermissible to apply that statute to the facts of this case.
Potter Stewart: But if the claim is not only that the -- that the statutory phrases not sufficiently specific, it's -- that it's not sufficiently accurate. It doesn't say what Congress -- what you say Congress intended to say?
Nathan Lewin: Well, to that extend, Mr. Justice Stewart, we think that that's really something that prevailed petitioner's basic argument. We think that his dispute is really with Congress and not -- and not with the courts as it were because the legislative history, we submit, is entirely clear that no matter what psychiatrists or the way to view among psychiatrists may be today as to whether homosexuality is a condition or can merely be used as an adjective to describe a practice. The legislative history, we think is entirely clear that Congress did consider the condition and that Congress intended to encompass that condition within the words it used in the statute. So that if in fact petitioner is contending that Congress mislabeled whatever it was trying or whomever it was trying to exclude, that's because -- that would be true no matter what the statute said. In other words, if Congress had retained its original proposed language in the statute and excluded specifically homosexuals or sex perverts, we assume petitioner would still be here saying that that's an inaccurate description of whatever it is that -- that he is afflicted with. But we just think that that's exactly what Congress sits for, to determine disputes among psychiatrists and among experts in this kind of an area. And that if there are disputes among the psychiatrists as to what proper way of labeling somebody who regularly engaged in homosexual activity is? Congress decided on the basis of recommendations by the Public Health Service that it was a condition, a pathological condition, and that it want to exclude the people who had that conditions from the United States as immigrants.
Abe Fortas: Well, what makes you say that so clear on the legislative history?
Nathan Lewin: Well --
Abe Fortas: I read your brief on some care and it seems to me that what you do is to -- in substance, to rely upon the report that was submitted by the Public Health Service in which is extracted on pages 23 and following of your brief. And as I read that, it's certainly is arguable that what the Service said was that ordinarily or frequently, people who engage in sexual deviation are psychopathic personalities. And I -- I really had a little trouble finding in unequivocal statement in that report, if that's what you're -- if I'm -- and that is significant if I am correct and it may not be that your reliance is ultimately on that report. Now, I'm excluding subsequent legislative history.
Earl Warren: How did the bill -- how did the bill read when it was introduced?
Nathan Lewin: When it first introduced in the Congress, Mr. Chief Justice, the Senate had specific provision which read that, aliens excludable include homosexuals and sex perverts. It was on the basis of that Public Health Service recommendation that the specific provision for homosexuals and sex perverts was dropped, and just the words referring to “afflicted with psychopathic personality” retained in the Act as it was ultimately passed.
Abe Fortas: And there are two possibilities. There are two possible inferences from that -- arguably anyway. One, is that Congress wanted to include all sexual deviate -- all persons who had engage in sexual deviation or that they wanted to include persons, who had engaged in sexual deviation, and -- and, who where psychopathic personalities. That there are those two possible inferences, I suggest for purposes of your discussion.
Nathan Lewin: Right. We relied on, Mr. Justice Fortas, not merely on the Public Health Service recommendation and I'd like to point to the sentence following the one that you've just read because we think that's really more clear. But we also rely, on how the Senate construed the Public Health Service recommendation. Let me first turn to that first thing of the following sentence. The Public Health Service did say that ordinarily persons suffering from disturbances are included within the classification of psychopathic personality with pathologic sexuality. It went on to say, this classification will specify such types of pathologic behavior as homosexuality or sexual perversion etcetera. It does that following sentence is an effect the statement by the Public Health Service that homosexuality is pathologic behavior, a proposition which petitioner basically contests.
Abe Fortas: Well, that -- that that problem you said is as clear as mud to me. I also call your attention top of page 24 where it says that, “the latter or sociopathic”, this is from your own brief. “The latter or sociopathic reactions are frequent symptomatic of a severe underlying neurosis or psychosis and frequently include those groups of individual suffering from addiction or sexual deviation.”
Nathan Lewin: Right.
Abe Fortas: Which is not the same as saying that persons suffering, you remember your rules of logic? Because I'm sure you do, that person suffering from addiction or sexual deviation are always included in the group.
Nathan Lewin: Now, we don't -- I agree with you, Mr. Justice Fortas. We don't read that sentence as meaning that they are all included in the group. We think that what the Public Health Service was saying was, if you use the word “psychopathic personality”, you will cover everyone who is -- whom you intended to cover by the words homosexuals or sex perverts.
Abe Fortas: Yes, but I --
Nathan Lewin: There may be people --
Abe Fortas: explained to you that that is arguable.
Nathan Lewin: Well --
Abe Fortas: It's also possible to read this to mean something that I take it from the briefs here as more consonant with medical science. Which is that some persons engaged in homosexual activities may be in the category of psychopathic personalities, some may not.
Nathan Lewin: Right.
Abe Fortas: And that's your -- that seems to be the medical authority. And in order to offset that, I take that your adversary's position is that it's got to be quite clear that Congress intended to use the phrase “psychopathic personality” in a sense that is to this extent artificial.
Nathan Lewin: Right but we even -- accepting certainly as I do that the Public Health Service recommendation is subject to differing constructions. More relevant, we think is what Senate -- the Senate or the congressional committees understood the Public Health Service to mean. Now, the Senate report, which we quoted pages 21 to 22 of our brief, which accompanied the revised legislation which succeeded that upon which the Public Health Service had submitted its recommendation, specifically noted, that existing law did not provide for the exclusions of homosexuals or sex perverts. That the prior statute that had been introduced in the Senate had so provided that the Public Health Service has advised that the provisions for aliens afflicted with psychopathic personality or a mental defect is sufficiently broad to provide for the exclusion of homosexuals and sex perverts, not some homosexuals or not the majority homosexuals but for the exclusion of homosexuals and sex perverts. And what we think is the really clenching evidence is the concluding sentence of that particular passage in the Senate report which says, “Quite specifically, this change of nomenclature is not to be construed in anyway as modifying the intent to exclude all aliens who were sexual deviates. Not merely aliens who were sexual deviates were also psychopathic personalities but all aliens who were sexual deviates.”
Abe Fortas: And you think sexual deviates and persons who have engaged in homosexual acts are synonymous?
Nathan Lewin: No. No, we don't think so and we don't think that that the Immigration and Naturalization Service thinks so, Mr. Justice Fortas. It's quite clear we think from the reported cases and from all the cases that we know of that Immigration Services acted upon that that they don't consider one or any sporadic acts of homosexuality's being sufficient to bring a particular alien within the class. As a matter of fact, in -- in an appendix to its reported decision in matter of P in 7 I&N decisions which is cited in our brief. The Board of Immigration Appeals quite clearly noted that the fact that an individual performs a homosexual act does not immediately classify him as a homosexual.
Abe Fortas: But was there a finding in this case that this man is a sexual deviate?
Nathan Lewin: He is based upon -- yes, he was. There was.
Abe Fortas: There was such finding.
Nathan Lewin: There was -- yes, sir. There's --
Abe Fortas: So many words.
Nathan Lewin: Yes, there's a Public Health Service finding on the basis of the Public Health Service psychiatrist and doctors examining the statements of the petitioner. And very specifically, on page 11 of the record, that that certification appears that on the basis of the information contained in the statement which is petitioner's own statement of -- his own history, it is our opinion that the alien was afflicted with a Class A condition namely, psychopathic personality, sexual deviate at the time of his admission to the United States. So that the standards that the Immigration Service is applying is not the one that switch across the board to anybody who is committed a single or very sporadic homosexual acts in his lifetime but to one who, as this petitioner did, engaged in as a -- as a regular practice. And indeed, we think that the evidence, as Mr. Justice Fortas noted in petitioner's argument, it wasn't even contested as to whether he really was a “homosexual” to the extent that that word has meaning to the extent that Congress, we submit, wanted it to have meaning that he was a homosexual at the time of entry. Indeed, he admitted as much. He said as much in his --
Potter Stewart: In the extent of that word it has meaning but it may have no meaning. He'd engaged in heterosexual acts and he'd engaged in homosexual acts, both, and as --
Nathan Lewin: Right. Far more of the former, Mr. Justice.
Potter Stewart: And then there's no argument about those facts?
Nathan Lewin: There's no argument about those facts but there's also no argument that he himself said in -- as a matter of fact, it was Selective Service Board that he was homosexual and that he received a correct classification on that basis, so that the petitioner himself is not attempting in anyway to challenge that kind of a finding. True, it may to be sure, we don't dispute the fact that the very word “homosexual” has vague -- certain vague meanings as it paraphrased. All that we argue is that Congress made it clear that that to the extent that that word does have meaning, it wished to have aliens who were -- who didn't meet that condition excluded from entry into the United States. Going -- now, if I may to the constitutional issue, which is whether Section 212 (a) (4) is unconstitutionally vague as applied to this situation because the words afflicted with psychopathic personality are too indefinite to provide a warning to aliens or a guide to administrators in courts. We submit that there's no constitutional defect to this language. First, because warning in the sense that it's usually thought of in the constitutional sense which is necessary for criminal and certain kinds of civil statute is irrelevant to the kind of determination that has to be made here. And second, because we think that the legislative histories provide sufficient content to the word “psychopathic personality”, to ensure a fair and even-handed administration by those who were responsible for administering the act and by the courts. I say warning is irrelevant because the statute does not on its face or in the manner of its administration purport to regulate how an alien is to act after he enters the United States. All that it does is that it excludes aliens, who fit certain statutory descriptions at the time that they seek to enter. The question before the immigration officer and the Boards of Appeal and the courts was whether petitioner was “homosexual” at the time he entered the United States in 1955. Now with all the warning in the world, assuming that that statute have been as clear as it could have been, petitioner could not have changed that statute. Now, of course its true, petitioner might as Judge Moore pointed out in a dissenting opinion below, have acted differently after his arrival in the United States and thereby not provided evidence which would corroborate the conclusion that that would have been arrived at in any event from his own history of his conduct before he entered the United States.
William J. Brennan, Jr.: Are you suggesting from this proceeding would never have been brought or rather would have been brought as it's never been in the evidence of post-entry?
Nathan Lewin: No, as a practical fact, of course, Mr. Justice Brennan the only way that --
William J. Brennan, Jr.: Well, I had -- had some considerable relevance to it --
Nathan Lewin: Oh! It did. It definitely did have considerable relevance. But we think that the notion of fair warning has never been thought to apply to evidence as it were. It's -- people subject to a statute are entitled to be warned as to whether they conduct they engaged in is lawful or is not lawful. Not to whether the conduct they engaged and may, in some way, provide evidence of unlawful activity or something that may redound to their detriment. Assume for example, a man prepares to commit a crime before or prepares to commit certain acts which were made criminal after he begins his preparations. I think there'd be no question but that the beginning acts of preparation would be admissible in evidence even though at the time that he did them he had no reason to know that the conduct he ultimately performed was criminal. In other words, you don't have warning. You're not entitled to warning in order to conceal from government official's evidence, conduct which may in some way show that either you're guilty of an offense or that something would result that would be to your detriment.
Abe Fortas: Mr. Lewin, let me be clear about one thing. I take it that the Government does not argue that as a matter of so to speak of medical dictionary definition, the term “psychopathic personality” includes the phenomenon which is involved here. You do not make that argument, do you? You make the argument on the contrary that Congress intended to use that phrase in a way that is, shall I say, arbitrary in the sense that it is not the dictionary definition. Now, am I wrong -- right or wrong about that?
Nathan Lewin: If I could qualify that, I think it would be right. We're not making that argument but we also -- we also -- we don't necessarily believe that it's wrong. We say it's a matter of dispute among psychiatrist. In other words, Congress did not, we think fly in the face of psychiatric testimony when it said, “this is conduct which could be classified under afflicted with a psychopathic personality”. Indeed, some of the responses in the amicus brief, the homosexual were formerly. We think indicate that those who responded believe that that may be it could be characterized.
Abe Fortas: You don't make -- you don't make that point in your brief, did you? I don't remember.
Nathan Lewin: What we did in our brief I think is that we disclaimed any reliance on any absolute medical knowledge which would today make it entirely clear that homosexuality is a form of psychopathic personality. But I don't think that we intended to say that Congress was acting --
Abe Fortas: Are you sure you're sufficiently cautious in that last pages?
Nathan Lewin: Well, I try to be. We're not -- in other words, all that I'm saying is -- or all that we're trying to say here is that Congress had before it or could have had before it various psychiatric opinions. It apparently chose one and that's perfectly within the domain of the legislature. If today it turns out that that's wrong or if the weight the psychiatric opinion to the contrary, that is not we think invalidate the statute or make it totally inapplicable. We just think its Congress' choices among expert opinion as to which view it wants to pay.
William J. Brennan, Jr.: Which is to say that that Congress had said in psychopathic personality that aliens afflicted with dandruff, a legislative history show they must to include homosexual as among those inflicted with dandruff. You wouldn't be making that argument?
Nathan Lewin: No, we would not be making that argument. But we think that in effect, the statute and its legislative history is certainly to be construed -- it's certainly to be applied no less and that the statute has itself said of aliens afflicted with homosexuality. Now, I understand petitioner's counsel to be arguing, that is a totally inappropriate characterization in any event because homosexuality could not be a condition. We submit if the legislature had that Congress had so stated, it would be the duty of -- we think the administrators and the courts to get content to the extent that it's possible to that policy.
William J. Brennan, Jr.: What about the change in the statute approved? It didn't say psychopathic personality including homosexuality but -- or including sexual deviations. It says homo -- homo --
Nathan Lewin: Psychopathic.
William J. Brennan, Jr.: -- psychopathic person or -- and/or sexual deviate.
Nathan Lewin: Right. The legislative history --
William J. Brennan, Jr.: Is that the change?
Nathan Lewin: -- the legislative history certainly isn't explicit on that. I can only guess and one -- one guess certainly could be precisely what we were discussing here. Which is that by that time statute was amended, Congress may or those who suggested the amendment may reasonably if had some doubt as to whether scientifically, homosexuality or sexual deviation could be considered a form of psychopathic personality.
William J. Brennan, Jr.: So that if you think it may now be that all over -- original psychopathic personality has been retained. If Congress did not buy that, those words now include homosexuality. That those who are included are only in sexual deviation.
Nathan Lewin: I think, sir. I think that to the extent that the statute announces or I think Congress has said disjunctive, “If you now proceed against the man who is homosexual, you should know that --
William J. Brennan, Jr.: Well, it's now narrowed -- if that could --
Nathan Lewin: That's right.
William J. Brennan, Jr.: -- now, it means that psychopathic personality be read more narrowly than in initial virtue.
Nathan Lewin: That's right. But we think that the quotations from the Senate report which accompany that, which appear in pages 28 and 29 of our brief, we think do make it clear that Congress was not intending by that in anyway to indicate that they meant anything less one when a person in active statute in 52.
Potter Stewart: I suppose -- do you understand the present statute, sexual deviation to refer to condition or to conduct?
Nathan Lewin: We think that it refers to a condition. But I don't think it can be afflicted.
Potter Stewart: Should be ready to wait.
Nathan Lewin: Well, it does say “afflicted” and I think afflicted --
Potter Stewart: Now, I see.
Nathan Lewin: -- as one can hardly be afflicted with --
Potter Stewart: I see.
Nathan Lewin: -- what he has done in the past.
Potter Stewart: That -- it's whether or not meaning of that.
Nathan Lewin: Yes.
Potter Stewart: That also, of course, I presume would include that sexual deviation other than and in addition to homosexual sexual deviation, wouldn't it?
Nathan Lewin: That's right. And to that extent, it's also similar to what the initial draft of the 1952 legislation were saying that because that covers homosexuals and sex perverts, and presumably Congress says somebody other than homosexuals when specified the latter. Let me just note in addition a point which the -- Mr. Justice Stewart referred to during the petitioner's argument, which is that so far as the fair warning point is concerned, it's quite bizarre to think of fair warning in the context of conduct which is unlawful under the laws of 50 states and it was unlawful under the law of New York at the time that petitioner engaged in. It's hardly likely that if the statute had been far more explicit in stating that deportation would follow a showing of homosexuality at the time of entry in the United States, the petitioner in this case would be anymore deterred from this kind of conduct and by the mere fact that they were criminal statutes on the books.
Abe Fortas: So, it might not have tried then if the United States would know and actually know.
Nathan Lewin: That's true, Mr. Justice Fortas.
Abe Fortas: It can infer that Canadian would know the laws of the New York State. I believe it's chargeable with that.
Nathan Lewin: That's true, Mr. Justice Fortas.
Abe Fortas: If the law of that.
Nathan Lewin: But we think that to that extent, to the extent that there's any suggestion in the -- a void for vagueness argument that somebody in petitioner's position has a right to rely on what he knows at the time he enters the United States. We submit that flies on the face of many, many decisions of this Court which have held, affirmed, and reaffirmed the proposition that Congress may retrospectively legislate with regard to the deportation of aliens in the United States.
Abe Fortas: Now, the other aspect of vagueness here is that made a good idea for Congress to be quite specific and when it tells the Immigration and Naturalization Service, do you think so?
Nathan Lewin: Yes. We think Congress should be but we think that -- to that extent, we think the gap can be filled by legislative history because it's true. As so far as the petitioner as an individual is concerned, he can't be expected to go beyond the words of the statute if he can't even be expected to read the statute at all. What we think that the administrators have available legislative history. And there's no suggestion here, that the administrators have gone beyond the homosexuals and sex perverts which Congress by its legislative history indicated it wanted to cover by this language. In other words, if these were a case, Mr. Justice Fortas, we're -- if we were on the boarder line of something which Congress may or may not have wanted, then we think that the decisions which say that a statute has to be precise and specific in order to ensure that it be given a fair and even handed administration would apply. But this is not such a case. This is a case where the words in the statute are general but the legislative history indicates that there is a very core of conditions that that were intended to be covered and the administrators in this case are acting within that core of conditions intended to be covered.
Abe Fortas: Why that's what you are?
Nathan Lewin: Yes.
William J. Brennan, Jr.: Except Mr. Lewin, is this -- this is only the Court have ordered that this apply on -- the most excluded, seriously -- excluded from admission in them.
Nathan Lewin: Excluded from initial --
William J. Brennan, Jr.: Now, I only question to ask an applicant like this which might elicit in response.
Nathan Lewin: They were none at the time of petitioner's entry.
William J. Brennan, Jr.: So are that now, since they've added --
Nathan Lewin: Since they've added sexual deviation. They specifically ask whether the applicant is a sexual deviant. They don't specifically refer to homosexuality even now. They just say sexual deviant. Let me --
Potter Stewart: Administratively, not talking about the new amendment but the statute as we have it here. What other people have ever been excluded under this?
Nathan Lewin: I don't know.
Potter Stewart: Really, this is -- this is that -- these are the only people excluded frankly speaking, aren't they? Or it had been deported?
Nathan Lewin: You mean un -- yes. All you think -- under the psychopathic personality already?
Potter Stewart: Yes. Isn't it -- only homosexuals and people who'd been -- who have engaged in homosexual conduct and only such people who have been thought to be covered by this, am I right about that or mistaken?
Nathan Lewin: I really couldn't give you an answer to that offense.
Potter Stewart: It might be of some importance. I mean the question, does this mean -- is this a code word -- is it your position that this is a code word? Meaning, people who have engaged in homosexual conduct or is this a broad class within which broad and definable class within which falls such people?
Nathan Lewin: We think it's a broad and definable class.
Potter Stewart: Yes. But then if we find that only homosexual that had people engaged in homosexual conduct had been excluded, then it isn't a broad class and it's a code word for something else, isn't it?
Nathan Lewin: Well, they may have been the only ones who were in fact excluded but I think --
Potter Stewart: Or deported?
Nathan Lewin: Or deported. Let me point out one fact which is that prior to the enactment of 1952 Act, as far back in 1917 Immigration Act. There was a provision in the statute applying to con -- persons of constitutional psychopathic inferiority. Now, that was not intended to apply to homosexuals or sexual deviants in anyway and it didn't cover that. And that the Senate report, which accompanied the original draft of the ‘52 legislation, pointed that out. I've just been referred to the manual for medical examination of aliens which the Public Health Service has and they do define psychopathic personality as covering any personality disorder and then have a definition, to put a long sentence which covers certainly more than sexual deviates. It says, these disorders are characterized by developmental defect or pathological trends in the personality structure with minimal subjective anxiety and little or no distress and so on. So --
Potter Stewart: What did you read?
Nathan Lewin: With minimal subjective anxiety and little or no distress.
Potter Stewart: With minimal subjective anxiety and little or no distress. I should think they are covered by anybody, who was well.
Nathan Lewin: Well, that's all -- that's all of course qualified by the Introductory Clause which says developmental defects or pathological trends in personality. I don't know how you show a pathological trend --
Potter Stewart: But I -- there is a suggestion in the briefs that's the reason I asked you that. In fact, in administrative fact, it's only such people as this petitioner who have been thought to be -- who have actually been deported under this statutory language and you can't tell me what was --
Nathan Lewin: I can't say but I will supply an answer and I will find that out, Mr. Justice Stewart.
Potter Stewart: I'd be -- I'd be very interested.
Nathan Lewin: I will set up an answer on it. If I might just return for a minute to the -- again to the question of fair warning and I say this Court has said as recently in the 1956 term in the Lehman and Carson case and Mulcahey and Catalanotte in 353 U.S. with only two dissents that Congress may legislate retrospectively with regards to deportation of aliens who are in the United States. In other words, an alien in the United States who enters has in effect a revocable license here. Congress may but act reasonably legislate retrospectively to provide first deportation.
William J. Brennan, Jr.: Let's see, is this an argument that in any event under the 65 statute, he should be deported?
Nathan Lewin: No. We don't read that. We don't read the 65 statute as being retrospective. But we're just saying, this is an answer to the argument which petitioner makes and which Mr. Justice Fortas raised, which is, that this man relied on the absence of any clear exclusionary provision in the statute. We think he has no constitutional right to rely on that. That if he entered the United States and did not know of this but later it was point out to him that by reason of the legislative history and the construction and application of the statute homosexuality was a ground for excludability, then, he could be excluded. Although, he thought at the time he entered and at the time he committed his homosexual acts even in the United States that it was not a ground for deportation. Indeed in those cases, in Galvan and Press and Harisiades v. Shaughnessy, the Court sustained the deportation of aliens who had no reason to believe that they would be deported. Either at the time they entered the United States or at the time they committed acts, which under a subsequent statute became the basis for their deportation. And we think that applies in these circumstances as well.
Earl Warren: Very well.