Earl Warren: Dean Rusk, Secretary of State, Appellant, versus Joseph Henry Cort.
Leonard B. Boudin: Mr. Chief Justice and Justices of the Court.
Earl Warren: Mr. Boudin.
Leonard B. Boudin: In considering the government's basic argument that this is a statute, which has a relationship to the far relations power of the government and that it does not imposed any punishment, one might be well to consider the Mr. Justice Frankfurter's remarks in his reflections on the reading of statutes, that in considering the construction of a statute, we might begin by reading it. And if one does read Section 21, of the Act of March 3, 1865, the progenitor of both the draft desertion, the draft evasions and the desertion provision, one sees that they have a common origin, a common purpose and common sanctions. In fact, Section 21 contains in the very same sentence, not merely the same section, the provisions with respect to draft evasion and desertion. Now the statute itself, which again we must look at, is a statute which provides, which is described as an act to amend the several acts herein after passed, to provide for the enrolling and calling out of the national forces and for other purposes, nothing to do with foreign relations. It is composed of 27 sections, all of which deal with different aspects of running an army and the question --
Speaker: [Inaudible]
Leonard B. Boudin: I think not Your Honor. I think running an army had something to do with the question that the statute dealt with. In short it is conceivable that a statute could contain the provisions relating to foreign relations, even though when army measure, but this particular one, I answer Your Honor in this way, this particular statute dealt only with the question of how to run the economy internally. So --
Speaker: [Inaudible]
Leonard B. Boudin: No if there were any part of the statute that touched on foreign relations, I would say it would not be necessary too. It is because each of the sections taken separately deals with a different aspect of the army, such as.
Potter Stewart: Which -- you are talking about the 1865?
Leonard B. Boudin: The 1865 statute, exactly, and Your Honors will see and I think the briefs and other cases have indicated that the history isn't unbroken one except at one point where they left out the draft desertion provisions, the draft evasion provisions in 1940.
Potter Stewart: Between 1940 and 1944.
Leonard B. Boudin: Exactly Your Honor. Now as I said Mr. Justice Goldberg, if you take the sections, one of them will deal for example with the question of bounties, another will deal with the question of soldier's pay, the third with a prohibition against allowing insane people to be inducted in the army. Nothing at all suggesting the government's present argument, and somehow rather in 1865 there was a conception of what our relations were going to be with other countries. Now I will come to the government's arguments on that point in greater detail. Now the particular section of course that we're dealing with here has three subtitles, two of them are significant; penalty for desertion, et cetera; and leaving the country to avoid the draft to incur like penalty. Now the debates on the subject, which I don't think have been discussed before this Court before, likewise indicate a concern for enrolling in army and not a concern for what will happen if somebody leaves the country. The Bill itself was proposed by Mr. Schenck, Chairman of the Military Committee, Representative from Ohio and Mr. Schenck's remarks, it was an emergency Bill I may say, in which they had very short debate, and which people who opposed the Bill were called traitors, Mr. Schenck stated, “Here is a penalty that is lawful, wise, proper and it should be added to the other lawful penalties that now exists against deserters.” And as the Bill was originally introduced it merely referred to people leaving the country, but Congressman Wilson of Iowa, which I gather was a state with hills in it, moved to amend the Bill by providing that anybody who left the district, not merely the country, should be covered by this statute and as he said, “In my own state, and I presume it is so in all the states, as soon as that notice is given, that is a notice of induction, many persons at once prepare to leave and do leave, going into the territories and among the mountains and mines to avoid the services of a country in the event that they are being drafted.” Well, mountains and mines in Iowa and the relating area is certainly a far cry from Mexico or Czechoslovakia or England, which the government is emphasizing in the present time.
Potter Stewart: That was quite a different statute that's what you're telling us.
Leonard B. Boudin: That was a statute -- but that is exactly the same statute that we have today, except we have eliminated the words the district, that's merely a formulation of words.
Potter Stewart: Well it seems to me if I may suggest so and suggest to you that there is quite a good deal of difference between leaving the district and leaving this nation.
Leonard B. Boudin: If they were Your Honor, any reference at all in any of the debates that followed to indicate that this wasn't merely a streamlining of the statute, then I would have to recognize some weight. But there isn't a word in the period from 1865 to 1952 that suggests a different policy, and as a matter of fact the government itself in its brief in Gonzales against Landon, says that the purposes of the current statute are purposes of the 1865 statute. Now I would take them if they were there, as well as their construction which I rely on in another connection. In the debate I may say in 1865 and a debate that followed, all the speakers emphasize the fact that this was a question of punishing people. No suggestion made of any effect on foreign affairs. In 1912 I think the most significant report is a report number 335 at the 62nd Congress, which is a report from the Committee on Naval Affairs, not foreign relations, in which they recommended that the statute be amended to be limited only to peace time. And that there again the Chairman of the Committee pointed out, in using the words punishment and penalties, and I may say, cited from Winthrop's Military Law and Precedents in a letter from the Secretary of the Navy, in which Winthrop pointed out that this was a war measure. No again, no suggestion that it would have had anything to do with foreign relations. In 1940, the Cabinet Committee's report was considered by the Congress and Your Honors will recall that the Cabinet Committee included on it the Secretary of State.
Hugo L. Black: May I ask you this --
Leonard B. Boudin: Please sir.
Hugo L. Black: I might interrupt you [Inaudible]. I don't quite understand the point of your argument. If -- I would say that if the Federal Government has the power to do this under any one of the clauses of the Constitution, then it had to refer to it. I don't quite get that. I don't see why it would have to refer to it? It might think it was acting under one, was acting under another like go on and indict. What is the -- why do you use this argument and what you want to prove by it?
Leonard B. Boudin: I have nothing clear enough I regret Your Honor. I was not adjusting myself to the question of power, but there is a question of the purpose of the statute. The government says that the 1865 statute was passed because the government was afraid that it might have some -- the situation might have some effect on foreign relations. I referred to the history and the words of the 1865 statute to show that the foreign relations concept is not based on reality. This --
Hugo L. Black: Well suppose -- what I get at and what I don't understand is this, whether they intended it to be based on that or not, if can be based on it what's wrong with it?
Leonard B. Boudin: Well I would suggest --
Hugo L. Black: On that ground I don't think that I would draft?
Leonard B. Boudin: We're not talking about power. Well if the government has, I was addressing myself Your Honor to the question of the purpose of the statute and not the power. Now Your Honor is suggesting that if there were a purpose it didn't exist, that the government might produce it now to justify the statute.
Hugo L. Black: No, I'm suggesting, quite different suggesting that if Congress has the power to do this under any clause of the Constitution, I wouldn't think statute could be invalidated by what some individual Congressman or leader or spokesmen of the committee or anything else said was his purpose. If it comes within the authorized power of Congress, why do we have to bother about what they thought they wanted to do it for?
Leonard B. Boudin: Well of course this is not a single, I'm only addressing myself to one aspect Your Honors, it is not a single Congressman, it is a full sweep of the Congress.
Hugo L. Black: Suppose this is all out, and put in the committee and they said our purpose is this.
Leonard B. Boudin: I would take the position Your Honor passing the broader question of power, which Your Honor has reserved, that if the Congress passes a statute intending to aid the war power, it is not for the Court, most respectfully or for the government to suggest that this provision, this statute passed the aid of the war power can now be translated and is justified on the basis of foreign relations power. It is the Congress' intention in passing a statute that I would say would be determine whether or not the exercise of power is proper. Congress cannot pass a statute under the intended to aid interstate commerce suggests and then argue -- then have it argued here that in fact it was intended to aid foreign relations, so I've moved too close. I think the government is bound in considering the meaning of the statute by the intention of those who drafted it.
Hugo L. Black: Well considering the meaning -- but considering the powe.
Leonard B. Boudin: Well and considering I haven't address myself yet to the power. I merely addressed myself to the question of whether or not this argument of the government, that foreign relations was involved, was really involved. I come to the question of power next. I have not addressed myself to the question of power, but the question of the purpose of the statute in answer to the government's argument that the statue was intended somehow rather to relate to foreign relations. I'm suggesting it was only intended --
Hugo L. Black: [Inaudible] As I understand it, I'm not sure that I agree with it and I may, I'm not sure, your argument as I understand it, so as Congress -- so we assume that [Inaudible] is all we want to act under the war power, contribution to the war power. They then come in and they ask you through the [Inaudible] and ask you to enforce the act on the basis that it helped in foreign relations; that, that couldn't be done.
Leonard B. Boudin: I first would say that could not be done, yes Your Honor. Now.
Speaker: Supposing Congress has put in a recital on something that the committee reports, simply saying that citizens who don't respond to their duty to serve in the army in time of war are not worthy of being citizens and we don't want them as citizens, supposing they had said that.
Leonard B. Boudin: I would -- that that was not be.
Speaker: What's that?
Leonard B. Boudin: I would say that, that is not within the power of Congress.
Speaker: Well then the other material question -- your argument is that there is no power to do this. We have to attribute given power, we have to attribute to Congress, whether it said so or not, a purpose to exercise power that -- by hypothesis we are assuming now, it has and attribute a legitimate exercise that power to whatever it says
Leonard B. Boudin: Well.
Speaker: Or whatever it fails to say.
Leonard B. Boudin: I don't think one can say that a statute that was passed and that Congress says was passed for the purpose of aiding the war power, can now be justified on the ground that it might conceivably have some relationship to the foreign relations power. Now this is quite aside from the question of whether Congress has the power at all of course. In short I think that when one comes before the Court to argue that a statute is justified on the one power or another, one doesn't pluck from the wings a power which one can find as an advocate on the Constitution. It has to have some relations to the reality and if in fact this statute didn't have any relationship to the reality of foreign relations, in 1865 or 1912, the government can't simply find the foreign relations power and say it might have some relationship to it.
Speaker: Well I suggest what Mr. Justice Goldberg said might be borne in mind that I should think the foreign relations was time of emergency or time of war, whether you call it war power or foreign relations power, two things are absolutely inseparable I think, under the right conditions.
Leonard B. Boudin: I do not think that they are inseparable and I don't think that Congress felt that they are inseparable in considering this. There is not a line in any of the legislative history from 1865 to date which suggests that the Congress was concerned about foreign relations in any of these statutes. However, I bear in mind Your Honor's point.
William O. Douglas: You are not really addressing yourself to the meaning of the statute, right?
Leonard B. Boudin: No I'm addressing myself to --
Potter Stewart: You said the meaning of the statute.
Leonard B. Boudin: With purpose.
Potter Stewart: The statute is unambiguous as far as its meaning goes, is it not?
Leonard B. Boudin: Yes it is Your Honor. Now the government, I will simply say without pressing the point further that the government refers to various problems arising on the war of 1812 and the problems for the North German States. Those problems were quite different from those which led to the impact of 1865 and a careful reading of the remarks of the State Department papers will show those problems related to the question of American citizens who went aboard and who were pressed into the armies of the North German states in the 1850's and 1860's or in 1812 of course to our seamen were being pressed. They had nothing whatsoever to do with the question, what would happen when people who were -- our draft delinquents went aboard. And I will not take the time of the Court to refer the Court who I think has been misstated by commentators like Saing who was relied upon by the government, where they attempt to prove a connection between these problems with the North German states and the Act of 1865. Those North German state problems were all dealt with in the Act of 1868, the Expatriation Act and in our treaties in the 1870s with the North German states, but they have no connection, except that they happen to be in approximately the same period with the statute with which we're now dealing. Now the government suggests that some how or other the possibility that there is flight aboard here or the fact there is flight aboard or in the case of Dr. Cort it wasn't one who flight aboard, it was remaining aboard, distinguishes this case from Trop. I have only to refer the Court to the government's brief in Perez against Brownell, which is quoted at page 31 of my brief, where the Court said, in talking about the desertion and the draft evasion sections, “the reasons which sustained,” where the government said pardon me, “which sustained Section 401(j) also apply to the cognate Section 401(g). Desertion in war time like draft evasion is a repudiation of the highest obligation of citizenship and involves kindred considerations. Subsection (g) does different from Subsection (j) in that it will meet the requirement of flight from this country or foreign residence, but the absence of this factor, said the government, does is not swing balance against constitutionality” and we agree of course with that position, at least that part, not the earlier part. Now there is a very real difference I may suggest between this case and Perez. It's true that in both cases and in numerous other cases people happen geographically to have been aboard, but geography is not the essence of Perez. As Your Honors will recall from the detailed opinion by Mr. Justice Frankfurter, it was not that Perez was in a foreign country. It was what Perez did in that foreign country that the majority of this Court regarded as having a bearing upon foreign relations. And the opinion of Mr. Justice Frankfurter, although very respectfully we have differed from it on our brief here, is very precise, that Perez in remaining aboard and in voting aboard was actively doing something which was an interference with another country's internal affairs, although I think he had a right to as a dual national, and that, that interference might be attributed to the United States, that the United States would be regarded as the principal and Perez as the agent. Well, nobody would suggest in these cases that Mendoza-Martinez was the agent of the United States in remaining in Mexico or Dr. Cort in remaining aboard, in defiance as the government claims, of their obligations under the Selective Service Act. And it is -- if we take the full meaning of Perez, the attribution to the United States Government of something, which might lead another government to resent it then of course this case is clearly distinguishable. Now the government's theory of the delinquency of obligations, which is the essence of its sovereignty point, as various members of Court have indicated and as prior counsel have indicated is a very dangerous doctrine, because where do you stop? What obligation of citizenship is it; that is to lead to the taking away of citizenship status itself. Why do we have a system of punishments instead of a system of banishment in this country? And I remember hearing in this connection, just give one illustration, one of our finest District Court Judge's in the United States Judge Edward Weinfeld, talked once on the subject of sentencing. Judge Weinfeld said that in his view, a man who was most delinquent in his obligations of citizenship above all others was a man who has defrauded the government of taxes, because taxation was the sinuous of a government and that was the case where Judge Weinfeld, a very fair but very able judge imposed the most severe penalties. Now the illustrations, the manifold, there is not much point in my trying to be more ingenious than other counsel and the various members of the Court in illustrating where this is, where this ends, but I think it ends nowhere and it comes down to the whole problem with the conception of citizenship. I would suggest that we of course adhere to the basic principles laid down by the Chief Justice in the majority -- in the first section of his majority opinion in Trop and in his dissent in Perez, but we have not found it necessary in view of the time, I simply won't argue what is not the majority opinion of the Court on the question of the general power of the government in a case where there is “A rational nexus”, to take away citizenship, but the broader doctrine that somehow or other there exists a sovereign power in the government to take away from the people who intended to be sovereign, the citizens, their status this I think is an appalling doctrine, and the government has attempted to minimize here, the question of statelessness. And I prefer to refer to Mr. Justice Frankfurter's comments in one of the cases, I think it was in Trop where he pointed out -- where he pointed out that citizenship, the loss of citizenship has tragic consequences. While the Justice ameliorated the situation to some degree, no reflection of these tragic consequences is suggested in the government's brief and I would merely indicate a few things to the Court at the present time.
Speaker: Are you going to address yourself at some point to the question as to whether Congress has power to take away citizenship without the citizen's consent?
Leonard B. Boudin: If there had been sufficient time, Your Honor, I would have welcomed the opportunity that I think that really involved a re-argument of Trop.
Speaker: Or is it --
Leonard B. Boudin: The re-argument of Perez, but it is necessary for me to make that point here because we make the point that Trop is controlling in the sense that we have had punishment here. Punishment here which is cruel and unusual punishment under the Eighth Amendment, that there is no rational basis between the act of remaining abroad and the foreign relations power of the United States and that therefore under both Perez and Trop this statute is unconstitutional.
Potter Stewart: Well now you certainly don't make the argument or do you that denationalization itself is either punishment or if punishment, cruel and unusual?
Leonard B. Boudin: Yes I do make the argument.
Potter Stewart: Well then you are asking us to overrule three cases in this Court.
Leonard B. Boudin: No I'm not.
Potter Stewart: Perez and Savorgnan and Hare.
Leonard B. Boudin: I'm not asking Your Honors to overrule Trop, I'm asking Your Honors to follow Trop.
Potter Stewart: No, I said Perez.
Leonard B. Boudin: Yeah.
Potter Stewart: Savorgnan.
Leonard B. Boudin: I'm going to be more responsive to Your Honor, if I may. I'm asking, Your Honor to -- I'm not asking Your Honors to overrule Perez because Perez was a case not involving in the view of the Court punishment, but involving a rational relationship which doesn't exist here. And I'm not asking, Your Honors to overrule the others, if Your Honor -- I'd be glad to say why I'm not.
Potter Stewart: But just -- I perhaps I didn't put my question very well. I -- my question was, was whether or not you're urging us that denationalization per se is punishment, and, (b) if punishment whether denationalization is cruel and unusual punishment, that is involuntary denationalization.
Leonard B. Boudin: I am precisely urging that and relying upon Trop as my authority.
Potter Stewart: Now wouldn't you concede that at least three cases this Court has affirmed situations in which citizens were involuntarily denationalized.
Leonard B. Boudin: Yes, but in none of the cases in which the Court reaffirmed that was the issue of punishment involved. In each case the Court regarded that and I think that point has been made in all of the opinions of the Court, the Court has regarded that as a transfer of allegiance, Your Honor is referring to Mackenzie against Hare, the Savorgnan. Those were cases --
Speaker: [Inaudible]
Leonard B. Boudin: Yes, the first two were cases clearly of a transfer of allegiance. I think that Perez represents the first break with the past and given the time I would welcome the opportunity to reargue that principle, that the rational nexus theory can be applied to citizenship itself. But it is not possible for me to reargue them. The important point is that I am not faced with any decision of this Court, which says that punishment can be constitutionally imposed or rather that denationalization can be imposed as a form of punishment constitutionally. I have on my side the one case which is in my favor here, which is Your Honor's own decision in Trop, an indistinguishable statute in terms of origin, language from the beginning and the general developmental history. So that there is no case in this Court, no case as yet, unless this is to be it in reversal of Trop, in which this Court has said someone maybe punished, maybe punished for by taking away his citizenship. Now --
William J. Brennan, Jr.: Mr. Boudin even though you are going to reargue it, may I just ask this? It was suggested yesterday that when Dr. Cort entered Czechoslovakia, he sought admission as a stateless person.
Leonard B. Boudin: I believe Your Honor, that there is no evidence in the record as to that. I do not know the facts. I could not conceive that it -- I would -- cannot conceive of it being at all relevant here --
William J. Brennan, Jr.: Was that statement unsupported by anything in this record?
Leonard B. Boudin: I believe so but I am not sure Your Honor. I would have to address myself to that. If Dr. Cort sought admission as a stateless person, if he did, it was obviously because the United States was not giving him at that time and as it had not from 1951 on, a passport.
William J. Brennan, Jr.: Well, this leads me to ask this. If we have the problem, which in your view we don't, whether there maybe denationalization except with the consent of the citizen, might a citizen renounce American citizenship to embrace a stateless status?
Leonard B. Boudin: I don't think that there is any such line of continuity between renunciation of American citizenship and the adoption of stateless. One never adopts a stateless position. It's a limbo into which one is thrown by his government's act or his own, but he doesn't adopt it.
William J. Brennan, Jr.: So far I gather our cases have been, Savorgnan and Mackenzie at least, where there has been -- what's been embraced has been another allegiance.
Leonard B. Boudin: Exactly Your Honor, and in Perez where they had already rejected another allegiance, which the man still was able to retain. This will be as I said, perhaps not expertly, originally the only case in which a man has been -- has had his citizenship taken away, that I know of, whether for a crime or otherwise, but the by the act of his government and in which he will become stateless.
William J. Brennan, Jr.: Well in any event if Dr. Cort did embrace or attempt to embrace a stateless status, he certainly has changed his mind.
Leonard B. Boudin: He never wanted Your Honor to be stateless. This was a situation enforced upon him by the United States Government. And Dr. Cort as a matter of fact at this moment does not have the full privileges of an American citizen to which he his entitled, under the decision of the court below because in answer to a question that was given the other day, Dr. Cort only has a one-way passport to the United States given by the United States Government in response to the order of the court below. Well now obviously he is entitled to all the rights of a citizen.
Speaker: Mr. Boudin --
Leonard B. Boudin: Yes Your Honor.
Speaker: As I understand your argument, you're assuming or accepting, event though you don't agree with it, the constitutional power of Congress to denationalize without consent, your argument bypasses that question or assumes it. In another words you say you can win this case even making that concession.
Leonard B. Boudin: Yes.
Speaker: Do I understand you correctly?
Leonard B. Boudin: I have emphatically in my brief Your Honor agreed with the Chief Justice's opinions to which I have referred before and denied here as I have elsewhere that the Congress of the United States had the power to take away against a man's consent his citizenship, but I have said that as -- that I do not have to carry that burden here.
Hugo L. Black: Are you waiving that at all?
Leonard B. Boudin: I am certainly not waiving it, I have made the point in my brief and nothing would please me more than to have the Court as I think it should pass upon the issue, but I do not think that in my case it will have to. I would have welcomed the opportunity for a full argument before the Court to reargue this particular matter, because I consider it one of the most serious decisions that was ever made by the Court and leave this [Inaudible]
William O. Douglas: Well I thought in answer to Justice Stewart you have said that the constitutional question is always open before this Court.
Leonard B. Boudin: Even if counsel doesn't raise it and I have raised it from the first day that we began this case, I have challenged the constitutionality of any Congressional action whatsoever in depriving a man of American citizenship.
Speaker: Well you have some slight stumbling block.
Leonard B. Boudin: I have --
Speaker: And the fact that the Court has decided at least three times that, that isn't so.
Leonard B. Boudin: I have a slightly [Inaudible]
William O. Douglas: Have very often have been overruled.
Leonard B. Boudin: I have -- well I hope that the Trop will not the overruled Your Honors since I think that it is very substantial authority for me here. May I make two more observations in view of the time problem? The first is that the discussion by the government of the fact that there are conventions being held for the purpose of minimizing or continually mitigating the rigors of the absence of nationality is the best proof that there are very critical problems involved in terms of the loss of nationality and one doesn't need be sociological expert to tell of refuge problems that exists all over the world today, because the people without nationality even where political problems are not involved. And of course if Dr. Cort were to come to this country and would find that by a decision of this Court, the novel one that I suggested before, he no longer had citizenship. Your Honors realize that he would fall under 241(a) of the Act making him an excludable person. He would fall under 212 (a) of the Act, he would fall under 241 of the Act making him a deportable alien. He would fall under another section of the Act, which gives the Attorney General the right to arrest him, a man born in this country, keep him for six months or so, look for another country to deport him and he would fall under probably the most serious section of the Act in the history of this country that lower courts at least have criticized, the provision that he shall be subject to supervision under regulations prescribed by the Attorney General, that he shall submit to medical and psychiatric examinations. This is an American citizen, a man born in this country, that he shall give information under oath as to his nationality, circumstances, habits, associations and activities and such other information whether or not related to the foregoing as the Attorney General may seem -- feel fit and proper, this is what happens.
Arthur J. Goldberg: I thought the government counsel has conceded [Inaudible] he would be regardless of outcome of this case a legally resident alien [Inaudible] against you?
Leonard B. Boudin: That concession I very much appreciate Your Honor, but I regret that my good friend learned as he is, cannot speak for the Congress of the United States or even for those who administer the statue. Just as statelessness says, Mr. Justice Brennan pointed out, is a wide area of unknown dangers, so entering the statute under -- entering the country under these unusual circumstances, if we were not to prevail, it would create very serious problems. Of course I have been talking about the Dr. Cort individually, let us forget about Dr. Cort and consider X, because this Court is concerned with the border problem. A man norn in this country not entering under these particular circumstances, is he to be treated, the American citizen born here, treated this dreadful way that we subject aliens even in 1962 and I had a sad smile as I heard some other statements made about the amelioration of our immigration laws, but every member of this Court knows what our immigrations law are today. And I would only add one word if I may Mr. Chief Justice with respect to a problem that I passed over a little too quickly. I think I may not have been completely fair to counsel or to the Court when I moved into an argument on the clear and convincing evidence doctrine, because if in fact the government's admission is a justifiable one and I think it is, namely as Mr. Terris, preceding counsel stated. If this is punishment said Mr. Terris, then the statute is embowered as the Court because he never had a trial, a point made by Mr. Justice Black, which I discussed the other day. There has -- there is no trial provided for under this desertion -- under this draft evasion statute. Although there is a trial provided for under the desertion statute and the fact that we may ultimately review the proceedings in a 360 action or in some other action of the judicial code does not mean that we have had a trial, which has led to the punishment.
Potter Stewart: You mean a criminal trial involving the constitutional safeguards that surround a criminal trial.
Leonard B. Boudin: Yes Your Honor and I would --
Potter Stewart: [Inaudible] jury trials the rest of it.
Leonard B. Boudin: Your Honor yes and I would say we have not even had a civil trial of the kind which we were entitled to before we lose our nationality. We lost, well Dr. Cort, I don't want to make this too inclusive at the moment, Dr. Cort lost his nationality as a result of an administrative decision of an assistant division head in the Department of State.
Hugo L. Black: Was that the ground on which his passport was denied?
Leonard B. Boudin: No, Your Honor the ground on which his passport was denied occurred in 1951. The Government is taking some support for that here, in violation -- under the general principles, which were struck down by this Court in Kent and Grale against Dulles. The Government from 51 on was treating Dr. Cort as if he were not entitled to some of the benefits of citizenship, they denied him a passport.
Hugo L. Black: I understood that in this case the position was that the statue itself makes a man automatically, deprives him of citizenship if he leaves here on the account of -- to evade the draft and if that happens before he has any kind of a trial.
Leonard B. Boudin: That is correct. The position of the government is --
Hugo L. Black: Automatic depravation of citizenship without any kind of trial in any Court.
Leonard B. Boudin: May I respond?
Hugo L. Black: Is that it? Am I right about it?
Leonard B. Boudin: Yes, the position of the government is and it was the position taken by the Department of State that from the moment that he allegedly remained aboard to avoid the draft, from that moment, without a trial judicial administrative, criminal or civil, he lost his citizenship.
Hugo L. Black: Is that what the statute provides?
Leonard B. Boudin: Yes, the statute doesn't provide for any trial. It provided the act of remaining aboard, now when the time comes to be denied a benefit like a passport as occurred later in 1959. An Administrative Chief in the Department of State says, “I have looked over the papers, I am satisfied that Dr. Cort remained aboard for avoiding the draft, purpose of avoiding the draft and I therefore hold that he is not a citizen.” Then you go to the Board of the Nationality Review, which again under the procedure I have indicated makes the same, but none of this is provided for by -- no trial is provided for by statute.
Hugo L. Black: If you get a judicial review of that, what kind of judicial review is it?
Leonard B. Boudin: I think the only judicial review we could have here would be one of the constitutionality of statute and as Mr. Justice --
Speaker: It was review de novo, wasn't it?
Leonard B. Boudin: I don't think that -- I think --
Speaker: Evidentiary wise, constitutional wise, statutory wise, every wise.
Leonard B. Boudin: Ah but the question, the original question is, was there a jurisdiction to deny Dr. Cort in the first place a passport? Was there a power in the government without a hearing, without the trial which this Court suggested in the Kurtz case, which the Court of -- which the Pennsylvania Court of Appeals suggested in Huber, was a condition preceding to the depravation of a right, but because between the time that Dr. Cort allegedly remained away for the purpose of avoiding the draft, and the time that the Court ultimately decided the matter, he was denied rights by the Department of State without a trial, on the ground that they had evaluated the situation and that he was no longer an American citizen.
Arthur J. Goldberg: [Inaudible] trial without a hearing in this case?
Leonard B. Boudin: I don't think the Supreme Court is a court of original jurisdiction Your Honor to hear this kind of matter.
Arthur J. Goldberg: No, [Inaudible]
Leonard B. Boudin: I think quite a difficult trial, because the state's normally on affidavits this were -- this was and is not the trial which Congress, which the Constitution contemplates as a trial occurring before the man is to be deprived of benefits. As Your Honors will recall this --
Hugo L. Black: May I call your attention this also, that this is a trial, it's a trial by the Judges, if this man had an automobile license or if somebody took away a $6 -- $25 piece of property, but he was tried for offense which would subject him to no less depravation for the matter of loss of citizenship, he would have a trial by a jury or judges, who tried the whole case with counsel, right to counsel and all of those things. And there is a question that arises so far as I am concerned and whether that kind of so called judicial review, the kind of protection that the Constitution affords the man, because they take him -- they take away his citizenship.
Leonard B. Boudin: As a final word if I may impose Your Honor, Mr. Justice Frankfurter, I've tried to reach this point before, in a footnote to Trop suggested, this is footnote number three, suggested that Trop, or a person like Trop could have shown in his judicial trial that the Court-Martial was without jurisdiction and we suggest that the judicial trial here, the so called judicial trial before the three-judge court in which we saw a passport, it is appropriate to show not merely that there was no jurisdiction in a Court-Martial which wasn't here, but there was no trial at all. I thank Your Honor for --
Earl Warren: Is there also a presumption in this case?
Leonard B. Boudin: Yes, Your Honor there is a presumption that I have dealt with in my brief.
Earl Warren: That he has to overcome?
Leonard B. Boudin: Exactly and we have challenged the constitutionality of that presumption.
Earl Warren: Yes.
Leonard B. Boudin: We think that it bears no rational relationship to the fact involved particularly because it says that any violation of the Selective Service laws will lead to a presumption that a man is remaining abroad for the purposes of avoiding the draft. Well Your Honors who are at least as expert as I am in this area know the numerous violations of the Selective Service laws, all of which are necessarily as a matter of law encompassed within this word any violation.
Earl Warren: But my point was that he has in addition to what you -- his burden would be in an ordinary trial, he is required in a proceeding of this kind to overcome a presumption?
Leonard B. Boudin: Yes, I missed Your Honor's point -- Your Honor is quite right. That is quite true, we have that additional burden and we address ourselves on the constitutional level really to that as well as the preceding point.
Earl Warren: Yes.
Leonard B. Boudin: Thank you.
Speaker: Mr. Boudin.
Arthur J. Goldberg: [Inaudible]
Leonard B. Boudin: Yes.
Arthur J. Goldberg: [Inaudible]
Leonard B. Boudin: I shall answer Your Honor. This matter is still in litigation. Dr. Cort has been given only a small part of its right to the citizen by the United States government, namely a one-way passport. There is no indication that the government, although we prevailed in the Court below, is prepared to recognize him as a full citizen with a very ill wife, as the record will indicate, bring his family here and to begin to try to settle down while this matter is in litigation, would be I think an unreasonable burden on any individual. I may say in answer to Your Honor's unspoken question and Mr. Doolittle's stated point that Dr. Cort does not want Czechoslovakian citizenship. We thank the government for suggesting that he might be eligible for it, but it is the one thing that we have not wanted and the one thing that Dr. Cort does want is to have American citizenship, to have all the rights and to comeback here as an American citizen either to go into the army, and Your Honor's will read the record to show the efforts that we made beginning with 1959 in our meetings with General Hershey on this moment or/and to face a criminal indictment, but to give us a crumb here with all the sanctions that might be imposed when the government is ready to colloquially if I may say, lift the beam, I'm afraid that they dropped the beam, I'm afraid that, that will be an unfair burden at the moment. But Dr. Cort has done nothing, although he could have of course in the way of adopting Czechoslovakian citizenship and his children as indicated here are American citizens. Now I --
Byron R. White: Well being -- your point about having had no trial prior to depravation of citizenship, you are really making that argument aren't you regardless of whether this is punishment or not.
Leonard B. Boudin: Yes I am. I think the punishment aspect aids it. The government suggests I'm dependent upon on whether it is punishment, but I make it regardless whether it is punishment because whether you call it punishment the government uses the word technically or not.
Byron R. White: [Inaudible]
Leonard B. Boudin: Yes, well I didn't know the statute, it's for Congress to pass a statute that will give us a trial, until they do that I think one can assume, at least we assume that the depravation is unconstitutional.
Byron R. White: [Inaudible]
Byron R. White: In Nishikawa, I have it right on Gonzalez that the burden is upon the government to prove by clear and convincing evidence the act of expatriation and that this occurs in a trial anytime that the person allegedly who expatriated, asks for any of the rights of citizenship.
Leonard B. Boudin: The government was never faced with the argument that I have made here.
Potter Stewart: But isn't --
Leonard B. Boudin: Yes, the Court in both cases decided in favor of the individuals involved.
Potter Stewart: And on that basis.
Leonard B. Boudin: And on that basis without ever holding because the issue was never litigated as I can recall it, without ever holding that the depravation could occur without a trial. This issue that I have posed in our briefs and we raised in the District Court, that there must be a trial similar to the one which existed in Trop. This --
Potter Stewart: This is a Court Martial, there obviously couldn't be that here, you're not saying --
Leonard B. Boudin: Yes exactly, it would have to be a trial and Congress has setup as the Court has held, Congress has setup a Court Martial procedure for the deserter. It has never set up any kind of trial for the man who is allegedly remaining abroad for avoiding the draft.
Potter Stewart: But this Court has clearly and unambiguously held, has it not, that anytime that -- the alleged expatriate at anytime can ask for any of the privileges or benefits of citizenship and if they denied him then it's up to the government in a court of law to prove by clear and convincing evidence, and that had the heavy burden to prove the act of expatriate.
Leonard B. Boudin: Yes Your Honor and this Court has not held, has not held that the issue has never been raised, that a person can even in the absence of clear and convincing evidence, be deprived of his nationality by virtue of an act whose interpretation is left in the hands of an administrative official. That was not raised in Nishikawa; that was not raised in Gonzales; that has never been raised before.
Potter Stewart: Because there were trials in those two cases and there was a trial in this case.
Leonard B. Boudin: I don't recall the precise trial -- there was no trial as -- there was no trial here until many, many months and years after we had suffered the depravation of citizenship in the view of the State Department. There was no trial until many months after an administrative official of the State Department had said you have lost your citizenship as of September 1953.
Hugo L. Black: And what kind of a trial was it?
Leonard B. Boudin: We never had a trial here. We had a review proceeding of the District Court on which we charged that the absence of a trial made the government's action unconstitutional.
Hugo L. Black: [Inaudible] having the trial not merely the review of some administrative agency that has heard evidence and made findings and so forth. You say that he is entitled to a trial before they do this, he is entitled to trial by jury with all the protection that the Court of law affords the man charged.
Leonard B. Boudin: Yes and not a decision reached by a man across the desk, a perfectly nice man in the State Department who shuffled some papers and has a pleasant oral argument with me. And then as result of the shuffling of papers, which I have never seen, makes a decision which led to the telegram, which is set forth in the record here. Citizenship, the passport denied, because you've expatriated yourself. That man maybe the finest man in the world, but the Constitution didn't set him up to try people and to deprive them of citizenship. Thank you. I thank you Your Honor.
Earl Warren: Mr. Doolittle?
J. William Doolittle, Jr.: Mr. Chief Justice, I should like to cover one point that is suggested by a question of Mr. Justice Goldberg in relation to my argument yesterday and that is a point of immigration law. If Mr. Cort should come back to the United States under the passport that he has been granted, of course he would be illegal entrant. There would be no basis for contending that he was not a legal entrant. Then if subsequently the District Court's decision should be overruled, should be reversed by this Court, there would be a question as to whether or not he could then be deported for any -- for being within an excludable class when he came into the United States. Now that question has never been decided by any Court as far as we know. It depends obviously on whether or not during the period of litigation the Supreme Court's final decision could have retroactive effect, and as I say that question is an open question. So there is the possibility that he could at that point be deported for having been within an excludable class when he entered, not for having entered illegally, but for having been within one of those classes and of course he would be within at least one excludable class. Now I should also like to cover --
William J. Brennan, Jr.: [Inaudible]
J. William Doolittle, Jr.: Pardon me?
William J. Brennan, Jr.: I gather that what you are saying, is under those circumstances and if there should be a reversal, I gather that the -- he became – ceased to be an American citizen as of whatever is the date found that he committed the expatriating act, that's it.
J. William Doolittle, Jr.: Well, that's right Your Honor. Now, but what I say is the open question. It's whether or not he could at that point be deported for having entered the United States at the time he was within an excludable class.
William J. Brennan, Jr.: Well my point is, if the government prevailed, he has been an alien every since 19 --
J. William Doolittle, Jr.: That is correct Your Honor. That is correct.
William J. Brennan, Jr.: And I gather what you are saying is that, that being so a question would be raised whether when admitted, now as having been determined that at the time of admission he was an alien, was he within an excludable class?
J. William Doolittle, Jr.: Well it's clear that he would be -- he was within an excludable class.
William J. Brennan, Jr.: Right.
J. William Doolittle, Jr.: But whether he would be deportable on that ground.
William J. Brennan, Jr.: Well that's the question I want next to get to. He would clearly be within an excludable class.
J. William Doolittle, Jr.: That is correct.
William J. Brennan, Jr.: And does it follow from that, that he would also then be deportable within one of the classes, deportable for --
J. William Doolittle, Jr.: My whole point Your Honor is that, that question has not been decided.
William J. Brennan, Jr.: [Inaudible]
J. William Doolittle, Jr.: We don't know the answer to the question. It is possible that he would be but we would not be inclined to say that --
William J. Brennan, Jr.: Well, in any event the government would be free I gather you are suggesting to seek his deportation on some basis under the laws governing --
J. William Doolittle, Jr.: Yes, Your Honor, he would be an alien, they would certainly be free.
William O. Douglas: You are not asking for an advisory opinion.
J. William Doolittle, Jr.: Not at all, Your Honor, not at all. Now I'd like to cover one other question that Mr. Justice Brennan asked, I believe it was on the basis for my statement yesterday that he entered as a stateless -- entered Czechoslovakia as a stateless person. That is based upon page 87 of the record, which is a part of his application for a passport in which he indicates that his residence permit in Czechoslovakia was a residence permit as a stateless person. Now I would also like to cover a factual question.
Earl Warren: He would be -- he wouldn't be able to say he was an American because they denied him a passport and I suppose we wouldn't be able to say he is an Englishman because they refused to let him stay there any longer, what would you suggest that he say in there, when he made this application for a passport in Czechoslovakia?
J. William Doolittle, Jr.: Well I'm -- Your Honor, I'm not suggesting that he should have said anything else. I'm merely -- my statement yesterday was merely that he entered Czechoslovakia as a stateless person. I am not attaching any morals one way or the other.
Earl Warren: Well you mentioned there it was one of the factors against him, that he himself admitted he was a stateless person. I was just wondering that if that was an irrational thing for him to do in the circumstance.
J. William Doolittle, Jr.: No, I'd say, I say he knew he was a stateless person, but that's all I can say.
William J. Brennan, Jr.: [Inaudible] do I now understand you to say you are making no mileage for your case out of that fact?
J. William Doolittle, Jr.: No, except insofar as Czechoslovakia knew he was stateless person and did not treat him on the ground.
William J. Brennan, Jr.: Are you making any point of the fact that this statement appears …
J. William Doolittle, Jr.: No.
William J. Brennan, Jr.: Not at all?
Hugo L. Black: Do you agree with it, that he was?
J. William Doolittle, Jr.: I do agree with it, Your Honor. Now I'd like to cover one other factual point raised by Mr. Boudin yesterday, and that is on the question of Mr. Cort's purpose in remaining aboard. It was indicated that Mr. Cort had -- if I could just finish this Mr. Chief Justice.
Earl Warren: Yes, oh yes, go right in.
J. William Doolittle, Jr.: It was indicated that Mr. Cort had received a letter from the authorities at Harvard prior to his having received a notice from his draft board. Now in point of fact because of the problems of when letters reach one across oceans and so on, it is probable that a letter written by Harvard did reach Mr. Cort before his draft notice did. But in point of fact that letter from Harvard, what it said was, and this appears at 138 of the record, it said, “We have had to deny your request and we declare your position essential, so you'll probably be drafted.” Well now Your Honors, if that is what made Mr. Cort decide to stay in England rather than his actual draft notice, which he received a few days later, we suggest that it's just as clear that he remained in England to evade the draft. We suggest that the fact that he knew he was -- that he heard that he was going to be drafted first from Harvard rather than from the Selective Service Authorities doesn't make any very important difference as far as his own mental attitude is concerned. Thank you, Your Honors.
Tom C. Clark: How about [Inaudible]
J. William Doolittle, Jr.: No, sir he didn't.
Tom C. Clark: He did not and would he be entitled to [Inaudible] under this wording in the statue?
J. William Doolittle, Jr.: Yes, he would.
Speaker: [Inaudible]
J. William Doolittle, Jr.: No, sir.