Earl Warren: Number two, Robert F. Kennedy, Attorney General of the United States, Appellant, versus. Francisco Mendoza-Martinez. Mr. Terris.
Bruce J. Terris: Mr. Chief Justice may it please the Court. This case is here on direct appeal from the United States District Court for the Southern District of California, under 28 U.S.C. Section 1252, which provides for the direct appeal -- for direct appeal to this Court when a federal statute has been held to be unconstitutional. The facts in this case have been stipulated and are entirely undisputed. Respondent was born in United States in 1922, and thereby became the citizen of the United States. He was at the same time a citizen of Mexico, because both of his parents were Mexican citizens and he is until this day still a National Citizen of Mexico. Respondent registered for the draft in California. In the Fall of 1942, he left the United States for Mexico as the stipulation in this case states for the sole purpose of evading and avoiding training and service in the armed forces of the United States. The stipulation further states the respondent remained in Mexico until November 1, 1946, for the same purpose, stipulation is on pages 33 to 34 of the record. Meanwhile, on September 27, 1944 Congress enacted Section 401(j) of the Nationality Act of 1940, which provides for the expatriation of any citizen departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency, for the purpose of evading or avoiding training and service in the land or naval forces of the United States. And after respondent returned to United States in 1946, he pleaded guilty to draft evasion in 1947, and was sentenced to imprisonment for a year and a day. Deportation proceedings were then brought against respondent on the ground that he had expatriated himself, and he voluntarily returned to Mexico. Respondent re-entered the United States in 1952, and new deportation proceedings were brought against him. After he was ordered deported and the Board of Immigration Appeals dismissed his appeal he brought this action to have himself declared an American citizen on the ground of Section 401(j) was unconstitutional. The District Court found that respondent came within the terms of Section 401(j), because he had remained abroad after the passage of the Act with a purpose of evading the draft. The District Court further found that the statute was constitutional. The Court of Appeals for the Ninth Circuit affirmed and the respondent petitioned this Court for certiorari in 1956. The case was held for almost two years pending the determination by this Court of Perez versus Brownell, and Trop v. Dulles. As is this Court remembers in the Perez case, this Court upheld the constitutionality of Section 401(e) of the Nationality Act of 1940, a statute which provided for the expatriation of American citizens who voted in foreign elections. In the Trop case this Court held that Section 401(g) of the Nationality Act was unconstitutional, a statute which provided for the expatriation of deserters in war time, although there was no majority opinion for the Court. The case -- this case Mendoza-Martinez case was then remanded to the District Court for reconsideration in light of the Trop case, this Court’s decision in the Trop case. The District Court this time held that Section 401(j) was unconstitutional, because it believed that the Trop case was controlling. The case again came to this Court, it was argued and this Court sua sponte remanded the case again to the District Court for consideration whether the government was collaterally estopped from asserting that respondent had expatriated himself because of respondent's 1947 conviction for draft evasion. On remand the District Court held that there was no collateral estoppel and reasserted that the statute was unconstitutional. This Court then noted the probable jurisdiction. The case was argued last Spring and then set for re-argument in this term. There are two issues in this case.
Earl Warren: Mr. Terris, may I ask you, if your position would be the same if this man were not a dual national?
Bruce J. Terris: Your Honor, we think the statute is constitutional as applied both to dual nationals and to stateless persons.
Earl Warren: Is that the administrative effect being given to it?
Bruce J. Terris: That is the administrative effect in that and Mr. Cort was involved in the next case to be argued here today is a stateless person. However we think that at the very least this applied to dual nationals is constitutional, but I do want to emphasize very strongly, we think it's constitution as applied to all American citizens. As I mentioned there are two issues in this case. There is first the non-constitutional issue; whether respondent's 1947 conviction for draft evasion has a collateral estoppel effect in this litigation. And the second and the constitutional issue, which the government appealed to this Court is whether Section 401(j) is in violation of the Federal Constitution. Turning first to the issue of collateral estoppel; the basic principal of collateral estoppel was that parties are bound in subsequent litigation involving a different basic cause of action as to a fact which has been explicitly determined or at least necessarily determined in the prior litigation between the same parties. And this is significantly different than the principles of res judicata for that principle bars entirely the prosecution of a second action, based upon the same claim as an earlier litigation and applies not only to issues which are actually litigated, but as to any issue which could have been litigated. Now applying the principles of collateral estoppel here, we submit that there is not a slightest doubt that the issue of respondent's citizenship was not actually litigated and determined in the 1947 conviction of respondent for draft evasion. Respondent pleaded guilty to the first count of the three count indictment and that count states and the indictment is on pages 24 to 26 of the record, that count states the respondent was a male person within the class made subject to Selective Service.
William O. Douglas: If the government's position is right, that the violation of the act automatically deprives a person's citizenship, he wasn't a citizen at the time, was he?
Bruce J. Terris: He was not a citizen at the time he was convicted, that's right Your Honor. But our argument is -- just about say Section 3, first of all our answer to that and I will come a little more fully to it in a minute, is that his liability under the statute came when he violated the Draft Act. Now he may not have continued to be liable in 1947, that -- it's not important whether he was liable at the time he was convicted, it's important whether he was liable under the Act at the time he committed the offense.
Earl Warren: As when he left the country?
Bruce J. Terris: That's right, that when he left --
Earl Warren: If he had been a non-citizen at that time, had he committed any offense by going?
Bruce J. Terris: Well, probably yes Your Honor because Section 3 of the Selective Service Act makes the act applicable both to citizens and to resident aliens alike. So that --
William O. Douglas: But he was a non-resident alien --
Bruce J. Terris: Well not at the time he left the -- not at the time he left the country. He was at least a -- he was at least a resident up until the time he left the country. Now he may have continued to be a resident and that's one of the reasons we think there is no collateral estoppel here. The fact that he was outside the United States does not establish that he was no longer a resident. For example, for all we know he may have continued to have a house here. There is nothing in the record either in this case or in the 1947 conviction as to any facts which show that he gave up residence in the United States. Residence would depend upon a whole serious of facts such as whether he established a home in Mexico, as opposed to traveling around and similar evidence. So we don't -- so even if he had not been a citizen in 19 --
William O. Douglas: When would he have lost his citizenship, I'm little confused on the --
Bruce J. Terris: He lost -- he did not --
William O. Douglas: When he left the country?
Bruce J. Terris: No, no Your Honor. I think maybe I misspoke to Chief Justice. He did not lose his citizenship when he left the country because Section 401(j) was not in effect at that time. If it had been in effect, he would have lost his citizenship at that time. But Section 401(j) was not passed until September 27, 1944. He had been outside the country approximately two years at that time.
William O. Douglas: So he lost his citizenship there?
Bruce J. Terris: When he continued to remain outside the country for the purpose of evading the draft.
William O. Douglas: Then he was a -- not a citizen but he was -- is your theory that of a non-resident alien?
Bruce J. Terris: He was from --
William O. Douglas: Therefore he couldn't be prosecuted unless he was a citizen under the Selective Service Act.
Bruce J. Terris: No, under -- in our view, he was not a citizen from the date of the Act until today, but through the period that the indictment covered which is until November 1, 1946 which is the relevant period.
Hugo L. Black: When was he convicted?
Bruce J. Terris: He was convicted in 1947.
Hugo L. Black: And you say that, that time he was not a citizen?
Bruce J. Terris: He was not --
Hugo L. Black: And he was residing in Mexico.
Bruce J. Terris: Pardon me?
Hugo L. Black: You say that he was not a citizen of this country and was residing in Mexico?
Bruce J. Terris: Well, Your Honor we don't know where he was residing, he was in the.
Hugo L. Black: He was a non-resident alien, was he?
Bruce J. Terris: Your Honor the record --
Hugo L. Black: At the time he was indicted for evading the Act.
Bruce J. Terris: Your Honor we don't know where he is a resident, the record is entirely silent where he was a resident. All we know was, he was in Mexico.
Hugo L. Black: Suppose he was a non-resident alien at the time he was convicted for violating the draft, was he rightly or wrongly convicted?
Bruce J. Terris: Rightly.
Hugo L. Black: Rightly?
Bruce J. Terris: Because it's not important whether he was liable -- whether he was liable for continued service under the act at the time he was convicted. The question was whether he was liable for service at the time he committed the acts that are of the subject of the indictment. He committed -- he violated the Selective Service Act by leaving the country.
Hugo L. Black: [Inaudible] any act as violated before September 27, 1944?
Bruce J. Terris: Your Honor I'm talking about the Selective Service Act, he violated in 1942, when he left the country, failed to report for induction.
Hugo L. Black: 1942, what -- that's when he violated.
Bruce J. Terris: That's right, that's when he violated the Selective Service Act. He was expatriated in 1944 when the Act, when the Expatriation Act was passed.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Well, may I answer that? We have two answers to that Your Honor, even assuming that, that was the gist of count one, that was an important part of count one, there still would be no collateral estoppel because there is nothing there that indicates he was either -- that he was a citizen, continued to be a citizen, that is -- that cannot be ascertained from count one. You know from the conviction in count one assuming that, that part of the count has -- is a real part of the allegations. You can tell from that allegation that he was either a citizen or not -- or a resident alien from 1942 until 1946. There is no indication, that he was a citizen as opposed to a resident alien and as I say the record before the District Court was entirely silent.
Arthur J. Goldberg: Well the government [Inaudible]
Bruce J. Terris: That's correct but he may well have been for all the District Court knew a resident alien.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Well then our answer is assuming that there was clear evidence before the District Court that he was a non-resident alien, so that you -- then our answer is, that count one, to me the gist of the allegation in count one is he violated that Selective Service Act by leaving the country. Now --
Arthur J. Goldberg: In 1942.
Bruce J. Terris: In 1942 that --
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: That the remaining in the country was to be considered surplusage and one of the reasons that we think this is true is that count one does not say that he remained abroad for the purpose of evading the draft, which would be required if that was one of the allegations on which he was convicted in contrast to saying that he left the country for evade -- for the purpose of evading the draft. So it appears that all this is a statement as to the events that he did not meet the requirements of the Draft Act and he continued not to meet those requirements. I would now like to turn to the issue of constitutionality of Section 401(j), which is the issue on which the government appealed to this Court. I like to break this issue into two parts. First I'd like to discuss whether there was any source of substantive power in the Constitution on which this statute may be based. Second after showing, we believe that such a power does exist, I will discuss whether either the limitations of the Cruel and Unusual Punishment Clause of the Eighth Amendment or the Due Process Clause of the Fifth Amendment, restricts Congress, prevents Congress from exercising its substitutive powers. But before discussing these broad issues I would like to emphasize the two basic principles underlying the government's entire argument. The first principle is as this Court has repeatedly held, there is an extremely strong presumption that any statute which has been passed by Congress is a coordinate branch of the Federal Government, that such a statute is constitutional. And the second principle is that a constitutionality of a statute depends not on any views as to its prudence or to its wisdom, but on whether Congress had the constitutional power to pass it. As to the substantive power of Congress to pass Section 401(j), in the Perez case which this Court decided less than five years ago, this Court held that Congress has the power to expatriate American citizens. The standard laid down by the Court for testing such a statute was that a rational nexus must exist between the content of the specific power in Congress and the action of Congress in carrying that power into execution or stating this same thought in terms of the Necessary and Proper Clause of Article One of the Constitution. The question is whether the particular statute is necessary and proper for carrying into execution powers vested by this Constitution in the Government of the United States? The government believes the Section 401(j) has a rational nexus and is necessary and proper to three powers conferred on Congress by the Constitution, the war power, the power over foreign affairs and the inherent power of every sovereign nation over its own citizenship. We think it needs extremely little demonstration that Congress has broad authority under the war power to legislate concerning the draft, more broadly concerning recruitment of men in periods of war or national emergency, which is the only period which Section 401(j) covers. The legislative history of this statute makes clear that both the executive branch and Congress were vitally concerned during World War II with the loss of manpower through citizens leaving the country to evade the draft. Attorney General Bill told Congress, and this is the letter which underlies this statute, that over 800 draft evaders had left the United States for Mexico by 1944 from the western district of Texas alone.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: We don't have those.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Well the 800 as I say came from one district, I assume that district was probably the one in which the most had –-
Arthur J. Goldberg: The border?
Bruce J. Terris: That's right, but this was only one district along the border, but I assume that was probably the district which was the largest.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Well --
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: I'm not too knowledgeable about passport requirements, but I don't think you need a passport even during the war to get into either Canada or Mexico.
Arthur J. Goldberg: I think it's part of the question.
Bruce J. Terris: Yes, well I think it was mainly to Canada and Mexico, that was the main problem. I think it's fair to say that it was only a few thousand people at most that were -- that were probably involved under this.
Earl Warren: Do you have any idea how many draft evaders there were in this country who did not leave?
Bruce J. Terris: No Your Honor. I want to emphasize and I'll come back to this probably several times during my argument. We think there is a very sharp distinction between draft evaders in this country who just evade the draft and stay within our jurisdiction and those who go to a foreign country.
Earl Warren: But you don't have any information as to how many?
Bruce J. Terris: Well I'm certain I could get the figures as to the number of draft evaders. I do not have any at this time.
Hugo L. Black: You mean there is a different constitutionally speaking?
Bruce J. Terris: Yes, Your Honor we think that there is sharp difference. We think that the loss of thousands of potential soldiers in this way is directly relevant to the war power, not only because of the loss of manpower, but also because such wholesale escape from the draft is seriously unfair to the millions of other Americans who serve their country in war and this resulting any quality of sacrifice we think could well lead to the sapping of morale both in the armed forces and in the public generally. Now the government's possible alternatives for meeting this serious problem were extremely few. Draft evaders leaving the country could not be punished because they were not within the jurisdiction of the United States. The Extradition Treaty with Mexico like most, if not all other American Extradition Treaties, did not and does not provide for the extradition of draft evaders. Therefore the government would have been required to make representations or even put on pressure on Mexico and other foreign countries in order to secure the return of the draft evaders who had fled to them. At the same time, the draft evaders were necessarily looking to the countries where they have taken refuge for protection. As a result, we submit that the United States and other countries particularly Mexico were likely to be drawn into serious conflict.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Your Honor, the only difference between what --
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: -- that possible statute and the actual statute was that there was no notice specifically given to each individual draft evader. However, I think there can be a very little doubt under this Court's decisions if that distinction does not make a constitutional difference. There is no indication in Mackenzie case and the Savorgnan case where this Court held that a person had been expatriated, it was admitted -- at the District Court unfounded it and was therefore assumed in this Court that the --
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Yes, but I'm saying that for constitutional purposes, we'll be here with the same case if Congress would pass that statute. That statute would also have involved probably considerable problems with trying to locate people in another country and in itself might have given rise to conflicts with the other countries.
Earl Warren: I suppose it is important to pay for a war as it is to fight it, and I wonder if a man left the country to evade paying a million dollars or so in taxes if he could have his citizenship evoked.
Bruce J. Terris: Your Honor, the Government emphasized it very strong and we do not think that they fall into the same category and this Court has quite cleanly emphasized in the number of cases --
Earl Warren: What is the great difference, do you not think that --
Bruce J. Terris: I'm not trying to make any comparison --
Earl Warren: A million dollars in -- and the tax payment might be as helpful to the government during the war as the services of an eighteen-year-old draft evader.
Bruce J. Terris: Your Honor, I think it's extremely important. I would come back to what this Court said in the Selective Service Cases that service in the armed forces is a supreme and noble duty of every American citizen.
Earl Warren: We are taking there about punishment, not about taken the citizenship away.
Bruce J. Terris: No, I think that statements only meant to be what is the duty? Now it happens that case went onto discuss --
Earl Warren: But isn't it an equally important duty to pay your share of taxes to win a war?
Bruce J. Terris: Well, I suppose it -- you can get it, you can get little more values here. I would submit and I think that the cases of this Court indicate that service in the armed forces in times of national emergency is a more important duty. Now, I would argue Your Honor --
Earl Warren: Just because it was more important, do you think that makes a constitutional difference?
Bruce J. Terris: Your Honor, I think that it would -- that Congress could take away citizenship for persons not paying their taxes and leaving the country in time of war to --
Earl Warren: Oh, I thought you said, you didn't believe that?
Bruce J. Terris: No, I did. I think Congress has that power. I think that this is a clearer case.
Earl Warren: Yes, I just wanted to know --
Bruce J. Terris: But I think that I -- we believe the Congress has this power.
Earl Warren: Yes.
Bruce J. Terris: We think that the possibilities of conflict with foreign nations is increased when many draft evaders seek the same country as the place of refuge and of course as I have indicated this is exactly what section 401(j) was intended to meet, this was the underlying problem. Most of these people as Mr. Justice Goldberg has indicated went to one or two countries and in addition the country -- the possibilities of conflict were increased even more because the statute mainly applied to dual nationals and of course, the countries of refuge would almost automatically protect their own citizens as we have frequently done in similar situations. Now the immigration service figured show that section 401(j) is mainly applied to dual nationals and mainly to Mexicans, because every litigated case as far as we know with the exception of the Court case as I've indicated will be argued next has involved a dual national.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: You mean we can just do nothing. Your Honor, we don't -- we did -- we don't --
William J. Brennan, Jr.: If that's the fact, unless the United States will make the [Inaudible]
Bruce J. Terris: Well, there is another possible conflict, which I will come to in a minute that I think would arise anyway, but we don't think that the foreign affairs power of this -- United States is a sovereign country depends on us doing nothing in situations which are of extreme importance to the country. Now as I've indicated, the war power -- another war --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: There would -- the embarrassment as this Court indicated would arise even -- it might very well arise even though we did nothing.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: Yes, Your Honor.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: I agree Mr. --
William J. Brennan, Jr.: [Inaudible] not going have any conflict with foreign affairs power and the American Government demands a return of [Inaudible]
Bruce J. Terris: Mr. Justice, I agree with you on the distinction, but I don't think it makes a difference. The reason I don't think it makes a difference is, because I don't think the foreign affairs power of United States means merely some kind of a defensive action to try to prevent embarrassment in Italy when somebody votes in an Italian election or in Mexico when somebody votes in an Mexican election. The foreign affairs power of the United States and one which Congress has the power to legislate under means the right to protect the sovereign rights of the United States. Now we were in the midst of a war. People were going across the border to escape the draft. There was a loss of man power; there was a possibility of loss of morality because of this escape. I don't think that the foreign affairs power only means that we could keep quiet and therefore have no conflict with anyone because we kept quiet. But in addition, there is another possible conflict and that is with dual nationals, particularly dual nationals, but resident aliens too, going across the border to Mexico who are of draft age during the time of war, there was an extremely good possibility that they would be constricted by Mexico or another country, which they -- in which they sort refuge. In this kind of a situation, the United States would be called upon to give them protection. This isn't just the theoretical problem, just exact questions, exact problem arose during the civil war when Americans left the country to evade the draft and then the United States was called upon to give them protection when their country of refuge attempted to conscript them.
William J. Brennan, Jr.: There is nothing, there is nothing imminent about the -- about giving any diplomatic protection which requires [Inaudible] take the citizenship away from them.
Bruce J. Terris: Your Honor, we can --
William J. Brennan, Jr.: We can, we had in the past.
Bruce J. Terris: We have done so in the past. I think however that this not -- this is not normally that this particular remedy is not a very good one. The reason it isn't is because when a policy is attempting -- when a country is attempting to maintain a policy with a neighboring country such as Mexico -- to tell Mexico it's okay to draft some people, but it's not okay to draft other American citizens is not a policy --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: Okay, is it dual nationals then --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: As a matter of international law they would, but we have still made representations in the past as a matter of history to try to get American citizens who were dual nationals --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: The Government submits that, that this statute well of course could not remedy all the problems which I have indicated, was of considerable benefit in remedying some of them, because the unfairness of sacrifice between American citizens was ended because draft evaders who left the country were no longer American citizens. They no longer could claim equal rights with other Americans without assuming their fair share of the obligations, and the possibility of conflict over the draft problem imposed by other countries was ended because since the draft evaders no longer were American citizens they were no longer entitled to protection. I'd like to pause briefly at this point and emphasize the similarity of Section of 401(j) with the statute, which was upheld in the Perez case and the lack of similarity between Section 401(j) in the desertion statute that was held unconstitutional in Trop. I have emphasized that the point of draft evaders is likely to involve complications with other countries. In Perez, this was the ground principally relied on sustaining the statute. In Trop, there was absolutely no connection with the foreign countries at all.
Earl Warren: Why wasn't it?
Bruce J. Terris: Because the statute as Mr. Justice Brennan, I believe pointed out, his concurring opinion did not even -- was not restricted in anyway to desertion in a foreign country or fleeing to a foreign country.
Earl Warren: Where did Trop desert from?
Bruce J. Terris: He deserted for I believe a single day in Algeria Your Honor.
Earl Warren: In Algeria and where did he go, to America?
Bruce J. Terris: No.
Earl Warren: He was in Algeria -- why wouldn't that involve our foreign relations just as much as this Mexican boy who went down to a friendly nation.
Bruce J. Terris: Your Honor, there are two answers there. First of all, the statute as a whole was not directed to people that were in Algeria.
Earl Warren: I wasn't talking about --
Bruce J. Terris: It is Trop and --
Earl Warren: I wasn't talking about statute, I was talking about the factual difference and --
Bruce J. Terris: Well, if that's the actual facts of Trop. He deserted in a country which was under American occupation or at least -- there was no possibility of any conflict in that case. Now it may be -- I really -- our cases which one could be a deserter and could involve foreign affairs problems, but this Court emphasized what Mr. Justice Brennan emphasized that the statute was not directed to foreign affairs problems. Now secondly in Perez, this Court emphasized that the voting of American citizens in foreign elections embarrassed United States and therefore, taking away citizenship ended the problem as I have indicated as to at least two of the problems involved in draft evaders leaving for foreign countries, the taking away of citizenship, hence that problem. Third Mr. Justice Brennan, noted in the Trop case that expatriation appeared to have a little additional effect in detouring deserters for expatriation could only occur after there's been a court-martial and the court-martial have the power to impose long imprisonment or even death.I n contrast, this statute does not apply to people who have been convicted by a court-martial by any other Court of Law. It applies only to people who are outside the United States and it cannot be extradited. Therefore the only remedy that they -- obviously they could not be punished at all, certainly not by death and the only remedy that Congress had before is the possibility of expatriation. And finally, Justice Brennan again in the Trop case noted that the loss of citizenship was severe and particularly that statelessness would likely be solved and he therefore suggested that these facts indicated there should be a stronger connection between expatriation and the power conferred by the constitution. But the severity of this statute is substantially less than the severity of the desertion statute involved in the Trop case. Here as I've indicated that normal situation is that of a dual national who still as a citizen of the country in which he himself took refuge
Earl Warren: But you made no constitutional distinction between him and the person who is not a dual national and how about the statelessness of the man who is not a dual national who is in the same circumstances as this man?
Bruce J. Terris: Your Honor, we think that the statute is properly applied to both. We think it is even more clear that it's properly applied to --
Earl Warren: I so understood it to be –-
Bruce J. Terris: -- to the dual national.
Earl Warren: What is the constitutional difference then? If one is more clear than the other constitutionally what is the difference?
Bruce J. Terris: The difference -- one of the differences is at least Mr. Justice Brennan thought there was a difference depending on severity, how close the power conferred by the Constitution is to expatriation. He thought that because of the severity of the desertion statute, the Government was required to show a closer connection. Now if that is true --
Earl Warren: Would you say this was severe the punishment that can be extended to a man?
Bruce J. Terris: The normal situation is not severe, no Your Honor.
Earl Warren: What is -- what is the maximum he can be punished for?
Bruce J. Terris: Let me go back -- the maximum think that can happen to him, we do not concede is punishment. The max --
Earl Warren: I beg your pardon.
Bruce J. Terris: We do not believe it is punishment. The maximum severity of harm, the harm that can result and the worst that can happen is a person who is stateless and has no connection whatsoever to any country we do not think that will rise frequently, if at all under the statute that my colleague will discuss the problems of statelessness under the statute in the Cort case, because that's where it is directly involved. But the large majority of the cases involve people who will not be stateless at all, and we think the statute should be considered on that basis.
Earl Warren: I know, but in this case as in the Trop Case, he could be punished for leaving the county.
Bruce J. Terris: Your Honor, I don't know whether I've you spoken before, but we do not believe this is punishment.
Earl Warren: I beg your pardon.
Bruce J. Terris: I don't know whether I have misspoken before, but we do not believe this is punishment.
Earl Warren: Didn't the sponsor of the bill thinks so, Chairman Russell?
Bruce J. Terris: Pardon me?
Earl Warren: Didn't Senator Russell oppose this?
Bruce J. Terris: Senator Russell, the Senate had very little to do with this bill at all. It arose in the house.
Earl Warren: They passed it, didn't they?
Bruce J. Terris: Yes, he set the penalty too, but as far as characterizing him as the sponsor I was only trying to explain that. He mentions I think the word penalty twice. We think that this is the kind of loose talk, which is often used, for example, with the regard to the fraud penalty in tax litigation. This court held that was a civil remedy.
Earl Warren: Didn't the Attorney General recommending that there is mention on the line of punishment or penalty.
Bruce J. Terris: No, he did not say it was the penalty and --
Earl Warren: All right.
Bruce J. Terris: The principle that they had occurred in the house, there is no mention of any penalty or punishment or anything or punishment or anything suggesting penalty or punishment in the house.
William O. Douglas: I just happened to be reading Attorney General's letter --
Bruce J. Terris: Yes.
William O. Douglas: He says while such persons are liable to prosecution for violation of the Selective Service Act if and when they return to this country, it would seem proper in addition they should lose their United States citizenship.
Bruce J. Terris: Yes.
William O. Douglas: It seems like in terms of penalty --
Potter Stewart: Differentiating the two, isn't it.
Bruce J. Terris: That's right.
William O. Douglas: Adding to the penalty of going to jail.
Bruce J. Terris: Well, there were two consequences, I agree. The same thing you might say that in addition to going to jail when you are convicted of a felony you lose your right to vote, but I don't think that shows the right to vote, the loss of the right to vote is punishment.
Hugo L. Black: Technically speaking -- legally speaking.
Bruce J. Terris: Legally speaking. I would like to come to punishment a little more fully later on. And now I just consider the third source as substantive power on which we believe this statute can constitutionally be based, the inherent sovereign power of every country over its nationality and its citizenship. This Court said a long time ago in the Wong Kim Ark Case that every independent nation has the inherent right to determine for itself and according to its own Constitution and laws what classes of person shall be entitled to its citizenship, and the same kind of thought was repeated in the Mackenzie Case in 239 US.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: Well, they are not in those terms, but of course we were relying on the Necessary and Proper Clause.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: That's right.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: No, it does not, but this Court has not construed the Fourteenth Amendment as preventing expatriation in the Perez Case, Savorgnan Case and several other cases. In fact, the majority of the Court even in the Trop Case does not say that there is no underlying power of Congress to expatriate persons. We submit that Congress can use the power over nationality and citizenship to impose a duty of allegiance, meaningful allegiance on American citizens. In the Luria case, this Court stated that citizenship is a membership in a political society and implies a duty of allegiance on the part of the member and the duty of protection on the part of society.
Earl Warren: We'll recess now.
Bruce J. Terris: Your Honor, at the intermission I was discussing the source of constitutional power held by Congress over citizenship and nationality. And I was alluding in particular to the Luria Case decided by this Court, which describes the obligations of citizenship in the -- the same time the obligations of this country to its citizens.
William J. Brennan, Jr.: What's the citation?
Bruce J. Terris: 231 United States, begins at 99, I am going to quote from page 22. The Court said that citizenship is a membership in a political society and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. Well, when these are reciprocal obligations, one being a compensation for the other, we submit the respondent has broken this mutual compact and therefore that Congress could reasonably provide that he was no longer a citizen. Short of treason and the like, we believe that section 401 applies to conduct, which is at the furthest extreme from allegiance to the United States. The persons which come under the statute have first of all deliberately evaded, what this Court has said and I indicated before we rely on the statement --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: Yes, there is Your Honor. First of all, the draft evader has evaded as I have indicated the supreme and noble duty of every citizen to defend his country in time of war and national emergency, but draft evasion is not sufficient for expatriation under the statute. The draft evader must leave the jurisdiction of the United States for the purpose of evading his duty. We think this point means two things. First of all, it means that the draft evader is taking himself outside of the jurisdiction of the United States and is completely abandoning his country in time of great danger and we think that the flight means something else. It means that the draft evader is placing himself within the jurisdiction and under the protection of a foreign country.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Your Honor, I think it would have been possible to make that kind of a determination and that's which make that the case go off in that, that is not what the District Court found and I don't think there is any ground which would allow for expatriation on that basis. We think that the statute -- as I've indicated before, we think this statute applies to dual nationals and everyone else. We think at the least it applies constitutionally to dual nationals.
Arthur J. Goldberg: [Inaudible] major problems here is dual nationals --
Bruce J. Terris: That's correct Your Honor. That's correct.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: I don't want to overstate the facts in this case. There was no proof in this record that when he went to Mexico he intended to give up his American Citizenship.
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Your Honor -- yes, Your Honor. We think that Congress could reasonably determine that when a person does this, it is that he is choosing that his primary allegiance is to another country, that's right and we think that would be enough to sustain the statute as applied to Mendoza-Martinez. However, I would -- the Cort Case which is going -- which is also going to have to be decided by this Court involves different facts, although we think that the situation in Court is not materially different that he too chose a foreign country voluntarily and that -- but it –-
Arthur J. Goldberg: [Inaudible]
Bruce J. Terris: Well, it involves the successor and there is no legislative history of the successor indicates any different than this one. I think that as far as the statute is concerned, it has to be treated the same.
William J. Brennan, Jr.: Mr. Terris did I correctly understand that the government's position is that statute [Inaudible] draft and that has sole purpose [Inaudible] that is without regard to what may have been the motivation of the draft [Inaudible] that to embrace another citizenship although --
Bruce J. Terris: Yes, I think I stated that to Mr. Justice Goldberg. We don't think there is any evidence in this particular case then when he went to Mexico, he intended to give up to --
William J. Brennan, Jr.: Even if there was I thought your position was --
Bruce J. Terris: That's right.
William J. Brennan, Jr.: That Congress constitutionally could impose expatriation for draft evasion whether or not the draft evader intended to renounce American citizenship and embrace another citizenship.
Bruce J. Terris: That's correct, just as the same problem was involved in McKenzie.
Speaker: That it would have applied equally here [Inaudible]
Bruce J. Terris: Exactly, Your Honor. We -- and we think that under the Mackenzie case, the Savorgnan case, the Perez case that it's not important whether he had an intent. However, we think that as to dual nationals there is even more clearly, was it reasonable for Congress to say that people in this situation have chosen their country of primary allegiance, whatever their subjective intention is, it's immaterial. Their subjective intention maybe that they like the United States better than Mexico. But as a matter of the objective facts that they have chosen, they have manifested allegiance to another country and that as applied to Mendoza-Martinez and the large group of people that -- the largest group of people under the statute, Congress could reasonably find that they had a stronger allegiance to another country and should not be allowed to have -- to continue to have American citizenship. In summary on this point we think that what Congress determined here whether the person was a dual national or not however, in either event, what Congress has said is that these people have given up all meaningful allegiance to the United States. And therefore the United States need not continue to give the benefits of American citizenship to people of this type. We think that Congress can reasonably say such a person who abandons his country in foul weather cannot obtain the benefits of citizenship in fair. And this is approximately what Attorney General Biddle told the Congress in submitting this bill. He said that persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds, and of course existing grounds were those which were in the original 1940 Nationality Act. And the same kind of statement was made by Congressmen Dickstein, the sponsor of the bill in the house on the floor of the House of Representatives. Now again I'd like to pause and emphasize the similarity of this -- of the connection between 401(j) to the inherent powers over citizenship that existed in Perez and the dissimilarity as far as this connection is concerned with the statute, the desertion statute in Trop. In Trop Mr. Justice Brennan said that desertion is often a technical offense and indeed in the Trop case itself, the particular person involved, might well be regarded as merely a technical violation of the desertion laws.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: That's right. It was the -- it was the next day he -- had been away just a day. We submit that leaving the country for evading the draft is always an extremely serious offense. Now the second ground why this is like -- why this is unlike Trop is that in the Trop case Justice Brennan compared desertion as I've indicated before to failure to pay the taxes and said that failure to pay taxes in desertion bore essentially the same relationship to allegiance to one's country. As I've indicated before we do not believe this is true. We think that the duty to serve one's country is on a higher level, but even accepting the fact that it is true, persons that come under Section 401(j) are not just draft evaders. They are people who have left the United States and we think that they are leaving the United States for a foreign country shows the inconsistency of any real allegiance to the United States. And thirdly in the Trop case the statute applied to persons with no connection whatsoever with any other country. Therefore the most that one could say in Trop was that the person, the deserter had given up allegiance to the United States, but here we think that the statute applies to people in which it can fairly be said, particularly as to dual nationals, but we think to everyone, that they have indicated considerable allegiance to another country as well as lack of allegiance to the United States.
Hugo L. Black: Would that make any difference in your judgment as to the power of Congress?
Bruce J. Terris: Yes, Your Honor we think that, that -- that under this third source of power, the inherent power of Congress over a citizenship and nationality, that Congress has the power when it -- to decide that a person has lost his citizenship when it can fairly be said that he has manifested lack of allegiance to the United States. As I indicated in the [Inaudible] cases that there was a compact between the citizen and his country, they have mutual obligations. And if that is true, when a citizen has seriously violated his obligation to his country, we think that Congress has the power to decide --
Hugo L. Black: That's what I meant. You are not placing that on the idea that Congress can presume or find as a matter of fact that a man has voluntarily abandoned citizenship if he hasn't.
Bruce J. Terris: We do not rest the statute on any finding by Congress that all people who go to Mexico have voluntarily given up citizenship, anymore than in the Savorgnan case that, that matter. There it was admitted that the woman involved did not intend to give up her citizenship. This Court said that she preformed an act, which under the statute was grounds for expatriation and it did not matter what her subjective intent was.
Hugo L. Black: Would it make any difference to your argument, that this was what you would call technical or legal punishment for a crime? Would you say that Congress does not have the right to take away a man's citizenship for serious crime? As I understand it your argument is broad enough to -- but even if it was so called technical or legal punishment.
Bruce J. Terris: Your Honor I'm basing my argument on an entirely different proposition. In Trop, the Chief Justice's plurality opinion stated that this was punishment, the desertion statute, made expatriation punishable and it was a violation of the Cruel and Unusual Punishment Clause. Now if this was punishment, then as I'm about to get to, we would run into the problem, whether this was cruel and unusual punishment.
William J. Brennan, Jr.: You would also run into problem of [Inaudible]
Bruce J. Terris: We would also run into the due process problem, that's right, Your Honor, we would run into both problems. But we think we run into --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: That's right, it's not like it.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: That's right, Your Honor and that's why I say we rest on entirely different ground, we say that that --
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: I think we would be lost in any case other than this one. In the last part of brief we argue that this person, that Mendoza-Martinez has been convicted so that it's as a matter of --
William J. Brennan, Jr.: Well that --
Bruce J. Terris: In the law -- that's right.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: We would -- no, you do not have. And you don't have it; you wouldn't have it in most case to be frank.
William J. Brennan, Jr.: [Inaudible]
Bruce J. Terris: That's right, that's right. If this is the punishment, Court has not received a criminal trial.
William J. Brennan, Jr.: May I ask you this Mr. Terris, if I understand [Inaudible]
Bruce J. Terris: No, I didn't mean to say that. Congress has the power to ascribe to certain conduct that a person can be expatriated, that's right. I don't --
William J. Brennan, Jr.: [Inaudible] expatriation there is nothing in the record [Inaudible] other voluntary --
Bruce J. Terris: Subjective intent to abandon his country?
William J. Brennan, Jr.: Yes.
Bruce J. Terris: No, and I think that's the explicit holding of the Court, as I say in the Savorgnan case and Perez case for that matter, the McKenzie case and another cases in dictum. Now turning to the cruel and unusual punishment --
Potter Stewart: Before you do turn to that, where do you find this inherent power of Congress over citizenship and nationality?
Bruce J. Terris: Where does.
Potter Stewart: I understood your argument on the foreign relations power, that's an explicit power and on the war power, that's an extremely explicit power. Where do you find in the Constitution of the United States this so called inherent power?
Bruce J. Terris: In the Curtiss-Wright case this Court said that the Federal Government has all the power of sovereignty which are normally to the -- which other sovereignties have. Now the power over nationality is one of those powers of sovereignty you'd think, as I've quoted a statement from Wong Kim Ark case saying that, that says approximately just that. There is another statement in McKenzie in here that is approximately to the same effect, that this is what every country in the world believes to be one of its inherit sovereign powers and the Curtiss-Wright case I think establishes, as well as McKenzie in here and Wong Kim Ark, that this is a power like all other inherent powers of sovereignty.
Potter Stewart: Well I didn't understand that.
Earl Warren: What are the --
Potter Stewart: I thought excuse me, excuse me.
Earl Warren: I was just going to ask what other countries do provide for expatriation?
Bruce J. Terris: For expatriation, almost all countries provide for expatriation for different types of problems, of activity.
Earl Warren: I thought there are only a few of them that did.
Bruce J. Terris: I don't believe so Your Honor. Well, I have a list of a large number of, kind of -- it depends on the -- they are different acts, different acts of -- now as to this particular act, I think there are, I forgotten the names, I think there were couple countries that specifically provides this --
Earl Warren: Turkey and Philippines.
Bruce J. Terris: I think that's right. And then there is a much broader group of countries as to naturalize citizens have such a broad grounds for taking away their citizenship that it would probably cover this kind in the act -- pretty commonwealth for example.
Earl Warren: They make the distinction -- they make the distinction between naturalized and native born?
Bruce J. Terris: Yes, they have Your Honor. I think however that distinction is the Court will probably later see in the Schneider Case. It might be the -- has constitutional problems of its own. So the fact that Congress decided to be even handed with all American citizens I don't think that -- should in anyway make this statute less constitutional.
Hugo L. Black: [Inaudible] power argument you are making is rather disturbing to me. I had an idea that the Constitution was adopted, the express purpose was to limit its power of the national government to those specifically granted of our necessary implications from the Necessary and Proper Clause.
Bruce J. Terris: Your Honor, this Court's opinion in the Curtiss-Wright Case is directly to the contrary as far as --
Hugo L. Black: You think that case would cause us to hold that the Federal Government has power over and beyond those expressly granted to it by the states and the original constitution are granted under the Necessary and Proper Clause.
Bruce J. Terris: Your Honor, the Curtiss-Wright Case is -- I submit is as explicit on this, on this point as it can possibly be. It says, domestic matters Your Honor's description of the powers of the Federal government is precisely accurate.
Hugo L. Black: Now, the other Court expressed several objections to that case and that gives me a new one.[Laughter]
Bruce J. Terris: Well, I think -- I think Your Honor will find that I'm accurately describing it. It is to -- as to foreign affairs that power did not come from the states at all because the states did not have the power over foreign affairs, they were not sovereign. According to the Curtiss-Wright Case that that power came from England to the --
Hugo L. Black: Power came from England or --?
Bruce J. Terris: England to the --
Hugo L. Black: We just had a riot with England.
Bruce J. Terris: The sovereign power in this country was first in England then under the Articles of the confederation in the confederation and then came to the Federal Government, it never passed through this.
Potter Stewart: Well then this inherent power argument really is the foreign affairs argument?
Bruce J. Terris: Well it is a branch of it in one sense Your Honor. Foreign affairs, I have emphasized conflicts with other countries for the inherent power over nationality I think it's immaterial.
Potter Stewart: Assumingly correctness of Curtiss-Wright, this is limited to our conduct in international affairs and so this third -- so called third argument is really a branch of your first argument, isn't it?
Bruce J. Terris: Curtiss-Wright is a little broader than that. It says not only foreign affairs but all those powers normally held by sovereign nation in the international law.
Potter Stewart: In the international law.
Bruce J. Terris: That's right.
Potter Stewart: But a relationship generally, I should think between a sovereign nation and its citizens and on the question whether or not a person is a citizen would be a domestic matter, would it not?
Bruce J. Terris: Well certainly in terms in the first instance that's right Your Honor. However, the power of nationality in the Federal Government, in the government, in the nation as a whole, in the confederation before we think was passed, as I say directly under Curtiss-Wright to the Federal Government. Now, I agree with you Your Honor that it comes from the same source just like the foreign affairs power. I'm only emphasizing the difference for one purpose. I'm assuming arguendo for this point that there was no conflict with Mexico. There would be no conflict with Mexico. Even so we think that the Federal Government has the power of deciding, the Congress has the power of deciding, the people that so manifest lack of allegiance to the United States and even allegiance to a foreign country may have their citizenship taken away just as they -- because they have broken the compact in essence. Turning briefly to the Cruel and Unusual Punishment Clause, our argument is based on the fact which we think is relatively clear that this statute was not intended to impose punishment, and we think the applicable standard was laid down by this Court very recently in forming a nester. And there the Court stated that only the clearest proof could suffice to establish the unconstitutionally of a statute on the ground that a punitive purpose in fact lay behind the statute. Judicial inquires and the congressional motives are at best a hazardous matter and when that inquiry seeks to go behind objective manifestations becomes a dubious affair indeed. Moreover, the presumption of constitutionality with which this enactment like any other comes to us, forbids us lightly to choose that reading of the statute's setting which will invalidate it over that which will save it. Now, this Court has held in many cases that even very severe harm coming to individuals is not punishment. The Court has held deportation is not punishment. Denaturalization which is very similar after all to expatriation in as to its effect is not punishment, disbarment and as I have indicated, the fraud penalties as they are called in tax cases. Therefore, we think these cases and especially in Flemming and Nestor established that even very severe measures do not constitute punishment if Congress is regulating an area within its substantive powers. Now, I have argued extensively that this statute is related to regulation the Congress may properly exercise as Military, foreign affairs, and citizenship. In addition, we think the terms of this statute make quite clear the punishment was not intended. It is unlike the Trop statute. Here the statute does not depend on conviction by any Court. In fact it doesn't even depend in the same elements of a crime for which a Court can convict because as I have emphasized draft evasion does not constitute ground for expatriation only if a person leaves the country or remains aboard for the purpose of evading the draft. And finally Your Honors, we think that unlike in Trop there was a considerable basis in Trop for saying that desertion statute was the same as the 1865 statute. In 1865 statute there was fair amount of evidence that it wasn't intended for purposes of punishment and the legislative history of the desertion statute in 1940 shows that it was a continuation of the 1865 statute that is not true of this statute. This statute was not even in existence from 1940 until 1944. The draft evasion statute in 1865 was repealed in 1940. In 1944 on the basis of new purposes and new problems, Congress enacted this statute. Now, Attorney General Biddle alluded to the fact that there was a precedent that there had been a statute of this kind before, but he did not say that this statute was merely for the same purpose and had -- and was a continuation of the earlier statute. We therefore submit that the judgment involved should be reversed.
Earl Warren: Mr. Davis.
Thomas R. Davis: Mr. Chief Justice, honorable members of the Court. As seven members of the Court know I have been with this case for sometime and looking at it simply from the point of view of one who has become deeply interested in the constitutional problem, naturally I would hope that we will reach a resolution here of the underlying constitutional problem. Unfortunately, I don't have the luxury of proceeding that way, I'm a lawyer with a client and there are very strong preceding arguments which must be made, which could well prevent this Court from reaching the constitutional problem. Representing Mr. Mendoza, I bring those arguments with, I hope with the same conviction as I bring the later ones. The Court will recall that the present remand is actually for the trial Court to consider the issue of collateral estoppel, which was raised sua sponte from this Court. We therefore take considerable temerity on my part to tell the Court what theory is since the theory came from a Court. There was, however, in the colloquy that took place between counsel for the Government and the Court, a little confusion it seem to me remaining when it was done. It wasn't quite certain at least to me as a listener, what act it was that the Government was supposed to have done, which we now assert estops it from denying the citizenship of Mendoza, and therefore for the purpose, perhaps of only clarifying my own mind may I state briefly the collateral estoppel theory as we understand it. There is a conveniently even set of dates 1942, 1944, 1946. Mendoza left in 1942. In 1944 while he was in Mexico, the Section 401(j) was passed. In 1946 he returned to the United States. Subsequently of course in 1947 he was convicted. Now the indictment and the judgment of conviction both charge him with departing and remaining outside of the United States to avoid the draft from 1942 to 1946. So, that a quantum of the offense is established, it isn't one day or one week its four years, 1942 to 1946. But if as one of the members of the Court pointed out earlier, in 1944 Mendoza was instantaneously denationalized then the offense was impossible for him to commit from 1944 to 1946.
William J. Brennan, Jr.: Unless he was a citizen.
Thomas R. Davis: That's right Your Honor, but under 401(j) if it were effective he would not have been a citizen. So, we assert that by charging Mendoza with a quantum of offense from 1942 to 1946, the Government is now estopped to deny that he was not a citizen during that period or to put it otherwise, the Government is estopped to deny that he ever lost his citizenship. Now, the Court sent this back to Judge Jertberg to get his views on it. Judge Jertberg opined that although he could understand the argument, he couldn't see that it was -- there was any real substance to it for this reason. If the offense had been committed for five minutes or 10 minutes or a year, it still would have been draft evasion and he would have been convicted of it, whether he is convicted of it from 1942 to 1946 or 1942 to 1944, which is what we assert would have been required to prevent this estoppel. Well, I can understand Judge Jertberg's position, but I think he fell into error for this reason; every indictment sets forth sufficient facts to permit the Trial Court to understand the total quantum of offense. It would be a rare case indeed where the District Attorney or the United States Attorney merely accused a man in an indictment of stealing money. He'd say, he stole a $100 or he'd say, he stole a million dollars and he would expect that the Trial Court would have that fact very much in mind when the Trial Court rendered the judgment in the case or at least pass sentence, granted the guilt is there or not there. But the extent of the offense would then be for the Court to consider in the passing of sentence. Now, Judge Yankwich, Chief Judge at the Yankwich of our Southern District tried the criminal case. There was a plea of guilty so there wasn't much to the trial. Judge Yankwich imposed a sentence with an indictment before him showing a four-year offense. We submit that it is a reasonable inference that Judge Jertberg had in his mind a four-year offense as opposed to a two-year offense. Therefore the United States has -- we are not merely doing hyper technical logic chopping here, there was something real in Judge Jertberg's mind when he sentenced this man to prison. He sentenced him for a four-year offense. We submit that it is a fair inference that he would have been moved to mitigate that sentence, if he had known that the offense had not continued after 1944 or had been limited to two years. Judge Jertberg took cognizance of my argument and he said there is nothing in the record to sustain it. I submit that there doesn't have to be anything in the record in that sense. That it's a reasonable inference that every Judge infixing the penalty takes into account the extent of the offense. It seems to me also if the Court please that this Court can reasonably hold in favor of Mendoza on the basis of stare decisis in that Trop is not distinguishable upon any substantial ground. To me the attempted distinctions are two; one is that 401(j) involves the offense of leaving the Untied States, and the second is this question of dual nationality. Now, with all respect to able counsel, I was not sure when the government finished whether the government fully conceded that this element of dual nationality is no longer before the Court or whether it didn't. So I'm going to have to proceed as if it is still before the Court although it seems to me that the government conceded more in this direction than they ever had before here. But first let me turn to the other branch of the attempted distinctions from Trop leaving the United States. It's been pointed out before and the Chief Justice has been one of those who has pointed it out, that the tax evader, the thief or anybody else leaving the United States is essentially on no different ground if international problems are created. They're probably going to be created by the presence of such an offender now within those borders and as Judge Jertberg as I crossed to point out, there is no showing here, but that Mendoza was not a peaceful resident of Mexico throughout his term there. So that I submit that it is very difficult to see that the leaving of United States injects an element into this case which should distinguish it from Trop. It seems dubious that the government had anything like that in mind in the first place, if the Court pleases. Let's look at how they framed the statute. They didn't say any person entering any foreign state shall commit something, they simply said leave the United States. Now, that could mean going out in the middle of Lake Michigan for all of that and I hope the Court won't take me as being facetious, but it could mean that going beyond the 10 mile, limited an ocean going vessel. If the government seriously was concerned with the presence of these draft evaders within some foreign state, it would seem reasonable that they would have said so and if they wouldn't have picked this awkward phraseology in the negative. The other branch of this question of distinguishing Trop as dual nationality, I think the Court has heard enough argument. I could tell from the questions of Mr. Justice Goldberg and Mr. Justice White that they have also had it brought to their attention. I have a few comments to make because there is other ground to cover and I don't want to spend too much time on it. But should we not emphasize in the first place that this question of dual nationality is one which is imposed by foreign governments by their laws, by their enactment's, rather than by any decision or act either of the individual within the United States or much less any act of the United States government. The -- as I -- I've said before in this Court, the British Parliament tomorrow can pass a law and say that we're all still citizens of England and I guess we will be if they say so. Now, are we pay to -- then say that if the British Government picks some category of us and says you are now British citizens that we are a class of citizens to be distinguished from the rest of us and isn't that all it really is to it? Of course Mendoza comes from a certain racial strain which identifies him in physical looks with those people of Mexico, but he was born in Kern County, California. Let us imagine also the situation of the American citizen who is also a dual national of China. Now, what would that mean to him by a way of substantial benefits, how would that better his position if he were thrust out into the world. Can we not well imagine reasonably that if a person of Chinese descent went to communist China and said, “Hi, I'm an American citizen and I'm also a citizen of China” that the net reward that he would reap for this would be to be hung by his thumbs or whatever else they thought out for him. The idea that dual nationality ipso facto and without any further showing, means that there is another homeland, another haven out there some place simply can't be sustained in this 1962 world and that it seems to me is a real heart of it. There has been something I have brought to the attention of the Court before to hold the record. I brought to the attention of the Court at the instance of Mr. Justice Whitaker and that is the fact that we know as a matter of fact by virtue of a communication from the Mexican counsel in Fresno purporting to speak for the Mexican Government that even Mexico wouldn't accept this man, if he had clearly renounced his Mexican citizenship in favor of his American citizenship. Now, it isn't competent evidence and I have no way of knowing how I could get to the government, the President or whoever of Mexico and get an expression, which might be accepted as competent evidence. I even went to the length before this present argument of importuning Mr. Dean Acheson to make an approach which he might be able to make much more effectively than I could. He replied that he didn't think it was appropriate and I certainly can understand his feelings about it. Certainly, I never would undertake such an approach without at least getting permission of the State Department. For my own part the argument lacks strength because I don't think there is any reality to it, that dual nationality doesn't necessarily mean there are two homes in the first place, but because there has been attention given to it in this Court, I have made that effort.
Arthur J. Goldberg: Why do you suppose your client went to Mexico?
Thomas R. Davis: Well, I know why he went to Mexico Mr. Justice Goldberg, because I have stipulated to that, I am bound by it. He went to Mexico to avoid the draft, there isn't any question about that and if there were I couldn't raise it now. And this --
Arthur J. Goldberg: You don't think he had a greater attachment to Mexico and then just left?
Thomas R. Davis: I think it was a geographical accident. The Mexican people who come from via lower valleys in California have hundreds of relatives down here. He ran there because that's where haven was, just the way a Kentucky boy goes back into those Kentucky hills, that's where the haven and the protection is and to Mendoza, that's where his was. If he had been living in some other part of the United States was more remotely removed from his ancestral beginnings, he would have avoided the draft by going some place else.
Arthur J. Goldberg: Would it be logical to assume that if we had nothing successful in the war that his attachment to Mexico would have been a little deeper than you indicate?
Thomas R. Davis: I don't think so, sir. I can answer that unequivocally. I think further that the record is totally devoid of any showing even that Mendoza knew he was a citizen of Mexico, much less was choosing. But Mr. Justice Goldberg, that diverts me to a point, which has been raised here in the past by Mr. Justice Stewart and I don't think that on that later occasion I did a sufficient job of arguing. What he has asked me in the past and what really essentially you're asking me now, is whether it isn't possible to postulate this entire case in term of Perkins versus Elg and so forth. That is that the Government has a right to designate certain Acts, which if performed indicate without more an objective desire to relinquish nationality. And Mr. Justice Stewart, the lapse of time is the reason for my limited answer to that question on the last occasion. Back in 1955, I wrote a special amicus brief devoted solely to that one single point, in the case of Daniel Castaneda Gonzales versus Landon and it was in the October term of 1955, it may be that the clerks can again make that brief available but let me say briefly this about it now.
Hugo L. Black: What was the number of the case?
Thomas R. Davis: 111, Your Honor. The heart of this short brief, which I wrote on the subject then, is Heiner versus Donnan 285 U.S. 312, in which this Court struck down the device of the conclusive presumption unless it can be shown that the fact which is relied upon to give rise to the presumption is in and of itself conclusive. And to say it another way so that there would be no misunderstanding, this Court went further and said that constitutional safeguards are not to be avoided by the device of the constitutional presumption. Now, it's necessary to go one step further into other decisions of this Court. It is absolutely true that this Court has repeatedly said in cases like Savorgnan that they will go behind the doing of the Act and find out whether in the back of his or her head, the person in question intended to give up the citizenship, but in the Savorgnan case and the other related cases in that field, the act, which was done, was itself conclusive and by that I mean simple renunciation in writing of American citizenship in favor of Canadian citizenship or acts of like character. Now, in those cases I think the Government was right and the Court was right in saying, we will not go behind such a simple and unequivocal act of relinquishment of nationality, but if Mr. Justice Stuart please, that isn't what's happened here. They've tried to extend those sensible, logical cases by taking a thoroughly equivocal act, an act from which any number of reasonable inferences can be drawn and say just because we say so, if you do this you lose your citizenship, and that is the vital difference. I have developed this thought a little further in this older brief in Gonzales.
Speaker: What's the name of that case?
Thomas R. Davis: It's Gonzales verus Landon Your Honor.
Earl Warren: In 1955.
Thomas R. Davis: Yes Your Honor, but even --
Hugo L. Black: Is that --
Thomas R. Davis: I'm sorry Your Honor.
Hugo L. Black: -- case?
Thomas R. Davis: The citation.
Hugo L. Black: The Tot case, not the Tot, but one that Justice Roberts wrote --
Thomas R. Davis: Perkins versus Elg.
Hugo L. Black: Tot, T-O-T.
Thomas R. Davis: I don't remember it Your Honor, I am sorry. I didn't -- I don't believe I cited it in his brief no. Well I'm not yet at an end however of my attempt to bring to the intention of this Court, those basis on which it can decide in a favor of Mendoza without reaching the question of the ultimate powers of Congress, because if we can show here that this is a penal statute and Mr. Justice Black, we mean a technically penal statute, if we can establish that the Government's cause is done, we can show that there was manifestly no procedural due process of law as we understand it in criminal proceedings and we bring into play fully and without any limitation, the doctrine of cruel and unusual punishment, but the threshold to all of this is the question of whether this is in truth a penal statute. We have had this out before and perhaps members of the Court will member that Mr. Justice Frankfurter and I had a rather brisk colloquy on the subject, which went on for sometime. May I bring to the attention of all of the Justices, because I have to keep in mind that two members of the Court were not present at that time, those elements, which we believe show that this is a penal statute and I mean a technically strict penal statute. In the very first place, expatriation and deportation from the United States is nothing more nor less than the ancient punishment of banishment or ostracism. It goes back to the beginnings of organized society. It was one of the first punishment that men every thought off for themselves and yet as we begin to civilize ourselves and to introduce more modern standards of law, we abolished this punishment as a particularly cruel and unusual one, as one which was not befitting imposition by civilized men.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: Oh yes Your Honor that's --
William J. Brennan, Jr.: That's why you told that.
Thomas R. Davis: That's right.
William J. Brennan, Jr.: Suppose you might not have had solid ground [Inaudible]
Thomas R. Davis: That's correct Your Honor. I have to reach to the record for support to show that this actually does involve deportation as well as the loss of the status of citizenship, but if the Court please, that's almost self executing, because (a) he committed a felony, (b) you make him an alien, (c) he becomes a deportable alien under the terms of the McCarran Act.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: Oh! Yes Your Honor it always has.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: I think that's correct. In any event this action was instituted by me to head off a deportation proceeding, which was then in progress.
William J. Brennan, Jr.: Well indirect proceeding or deportation --
Thomas R. Davis: It was completed but –-
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: That's right and he has been ordered to deported, but the government has not executed upon that order because of my declaratory relief action. It therefore seems to me ironic if the Court pleases that we should be here in 1962, talking about a statute being regulatory, which imposes in its practical effect a punishment, which was so primitive in its characteristics that the Anglo-Saxon world has long ago abolished it. Now despite the agility of counsel for the government, he was unable to show equally that the Civil War statutes from which these derive were not penal statutes because that the Courts call them this and by inference this Court called the 1965 statutes penal. More than that as the Court has pointed out in colloquially with counsel, both the house and the Senate clearly indicated a penal intent with respect to the imposition of this statute.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: That's right, Your Honor Huber versus Reily.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: That's right, Your Honor. Right.
William J. Brennan, Jr.: But this Court I remember had said that.
Thomas R. Davis: No, but I think in Kurtz it as much said it.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: That's right. That's correct, but it has not so squarely held that's correct. The other important thing it seems to me is the source of this statute, where did it come from? Did it come from the State Department to implement Mexican relations? Did it come from the Pentagon to implement the war effort, it did not. It has been clearly shown here that the source of this statute is the Justice Department. It was an effort by the Justice Department to do what it thought was best to enforce the Draft Act. And when the Justice Department requires or asks, requires is certainly the wrong word, asks of Congress an additional tool or a weapon for the enforcement of an otherwise penal statute, surely it appears on its face that the last bit of the facade has disappeared and that this is a penal statute. Common sense also it seems to me requires it, to send this man to jail for a year and say, that's your punishment for that, and then to come after him, a year after he's finished his term and say, now you also left the United States in the commission of that same offense now we're going to take away your citizenship for that and deport you, but that's not penal is to stretch credulity. This is -- this Court lives in a world of reality. I don't think its going to buy that. If we are right in this, if these cumulative elements, which I have suggested to the Court, show that this is in truth and in fact a penal statute, then the government's case as I have suggested must fall, because there was no trial by a jury. The burden in the first instance to bring this action was placed upon the petitioner, rather than as it properly should have been upon the government. The statutes did not provide for the other safeguards which are traditionally given to a defendant in a criminal action. Equally is the last shred of distinction between Trop and this case destroyed by virtue of the same argument. And Mr. Justice Brennan's concurring opinion in Trop is brought into full play, if we have shown that this is a penal argument and I submit that we have.
Arthur J. Goldberg: Does your argument lead to the conclusion that any kind of deportation is penal because the consequences are just as bad, are they not?
Thomas R. Davis: Your Honor any kind of compulsory deportation, yes.
Arthur J. Goldberg: In any kind of a situation?
Thomas R. Davis: No, I think this. I think that the -- it is within the power of Congress to state those acts which in and of themselves conclusively show an intent to voluntarily relinquish nationality and if that act can be shown in a civil proceeding to have been done then I would say no, it's not a compulsory process. If, I say this with a little reluctance because of my overall feelings in this, but I think it's necessary for me to concede it to give logic to my argument. However, where Congress has gone beyond the traditional form of compulsory -- I'm sorry, voluntary relinquishment of nationality and entered into the field of using the device as a punishment, then, yes, whatever the offense is there should be criminal trial.
Arthur J. Goldberg: What if Congress had specified here that anybody who knows he has dual nationality, who live -- is living in the country where he has nationalities, dual nationality and who stays in that country for one year, six months after he is called up for selective service, looses his nationality, would your argument still reach that, knowingly -- knowing the element being present in all the case that I've indicated?
Thomas R. Davis: Your Honor I don't think it's necessary to reach that here, but since your question requires me to reach it, I would still argue against such a statute because I don't think that the requisite intent would be shown to be made out even if the man knew that he has such a citizenship. Now if the --
Arthur J. Goldberg: You think voting is more of an intent than that?
Thomas R. Davis: Yes. Suppose the statute -- did Your Honor's question encompass the element that in addition to knowing that he was a citizen of the second country that he intentionally went there to take advantage of that citizenship?
Arthur J. Goldberg: No I did not go that far, I said he was there, but he remains there after a statute, which says that if you stay another year there during time of war and do not report back, you will then lose your nationality.
Thomas R. Davis: It would be a lot closer question than this one, where we do not have those elements present if the Court please. I have not yet reached the question of what the inherent powers of Congress are and of course I should again deal with those thoughts as time permits me to. I remember the first time this question of war power came up with Mr. Justice Stewart, he said it was not a very good way to raise an army, and it seems to me that his first reaction on that -- at that first argument in 1959 states pretty succinctly the sum and substance of this. It really is not an effective weapon to accomplish the purposes alleged for it even if we adopt the fiction that it was enacted for that reason in the first place. We know why it was enacted, the Justice Department asked for it, but if we go into the fiction that we were thinking about the enablement of the government's war effort at the time. I still submit that there has been no showing whatever by argument or by any other reference to show that this was the slightest talk to the war effort.
Potter Stewart: Well there is the argument that so much more subtle than the remark you attribute to me, that the argument that the morale of those people who stayed here and who did submit to the draft and who did serve at the risk of their lives their nation, it might have been pretty badly impaired had they known that their fellow citizens, that have evaded the draft simply by fleeing to another country with impunity and then beyond the jurisdiction of this nation to punish the guilty, there is that argument that's been made this morning as I understood it.
Thomas R. Davis: Yes. First, I think it's also been well established by Mr. Justice Goldberg's questions that the extent, the total extent of this offense was infinitesimal in comparison with the total war effort. Secondly, would it really have a benefit to the morale unless the person we are going to return, let's think about the fugitive. If the fugitive has left and is going to keep ongoing, would it make any of us feel any better that we had taken away his citizenship, what would he care he is gone, he intends to stay gone, but let's suppose he changes his mind and decides to come back. Now when he arrives at those gates we have him again and we can shoot him if we choose. We can give -- we can use any measure of penal sanction that we wish to. The factor of the improved morale only occurs when we do something to him that he doesn't want us to do to him. If he has gone for a good he isn't going to care, if he comes back we can punish him a lot more effectively than by this.
Hugo L. Black: I've been trying to think it for myself, you'd get along better with that, not a joint issue of that, I recall during the First World War, a man who left, dealing the soldiers during the war and after the war, but that man finally came back. It seemed to me like you could -- your argument is just as strong without, trying to refute the idea that a lot of soldiers would really resent the fact that the government didn't try to get somebody who had run off to keep [Inaudible]
Thomas R. Davis: I see Your Honor's point. Of course my answer is that the government could him.
Hugo L. Black: My views as of before of course have been expressed.
Thomas R. Davis: Yes I understand that.
Potter Stewart: The point is that you come back after the shooting is over.
Thomas R. Davis: Yes, but you can also be also be shot for it Congress choose is it do to you.
Potter Stewart: No, there is no such tension.
Thomas R. Davis: No, but there could have been Mr. Justice Stewart.
Potter Stewart: Well that would have been something else.
Thomas R. Davis: Yes that's right. But there could have been.
Potter Stewart: Be sent to prison for what, a maximum of five years.
Thomas R. Davis: That's right.
Potter Stewart: That's comparative --
Thomas R. Davis: But while I'm referring Your Honor to the concurring opinion of Mr. Justice Brennan when he said there are other things we could have done which would have been more effective. In effect, I'm agreeing with him by saying yes there indeed are. We could have adopted a conventional penal statute of greater magnitude which would have punished this man to a point where the question of morale or any other question would have been fully satisfied.
Potter Stewart: That's also to a point where there will never been any possibility of his coming back.
Thomas R. Davis: Possibly, but then would that make any difference, if he was going anyway we wouldn't care.
Speaker: And what is the question?
Thomas R. Davis: The -- certain comments of the Court in relation to the application of the foreign affairs power have led me to believe that I can do well to go on to a final position which I have urged here before. I'd like in the minutes remaining to me if the Court please once more to try to reach across these arguments, to urge upon the Court the possibility that we can burst out of this thicket that we have been in all these years and out into the sunlight once again if we take a strong clear position as to the meaning of the word citizenship itself. What is citizenship? What is to be a citizen as opposed to be a government? And I urge upon this Court the concept that in effect we're back at the time of Marbury versus Madison again. We're back when decisions were being made by this Court which established the nature and extent of the various basic components of this country. In Marbury of course it was the Court itself which was asserting its own power, but on various early occasions this Court, because it's the only instrument to do so, the only instrument that can do so, has stated a basic position as to the power of the component itself. Now I speak of the two largest components of all, the component of the citizens and the component of government. And this in a democratic theory is a contractual arrangement. The citizens say to their government you can govern but only in such terms and conditions as we set out and the great contract, the United States Constitution is made. And I urge upon this Court once more the thought that the status of citizenship itself must stay beyond the power of Congress to destroy, because if Congress can destroy the status then Congress has destroyed the contract. If there is no opposite contracting party, there is no contract anymore, to shoot him is one thing, but he goes his last mile as a citizen, to destroy his status is to destroy everything. The Chief Justice has said it in different way and in a different light, but it bears upon the same thought. What does it matter how hard we work to protect the basic freedoms in the Bill of Rights, if we give to Congress the right to take them all away through the back door by this device of the involuntary relinquishment of nationality.
Potter Stewart: Are you are relying on the Fourteenth Amendment in making that argument or not?
Thomas R. Davis: I think it goes deeper than that Your honor.
Potter Stewart: First sentence of Section 1 of the Fourteenth Amendment.
Thomas R. Davis: It certainly bears upon it, but I think it goes deeper than that. I think it goes to the very basis that this country was formed on before there was a Constitution.
Potter Stewart: Your argument -- your present argument that require certainly overruling the Perez case and probably also --
Thomas R. Davis: Not quite.
Potter Stewart: And probably also Hare and Savorgnan.
Thomas R. Davis: Your Honor, no I don't think so, because Savorgnan was an act which was equivocally a relinquishment. Hare to me with all deference and due respect is an equivocal case. I can't read it and come to final conclusions over it. But now about Perez, I don't think this Court need overrule Perez, even though as an interested lawyer I wish the decision had been otherwise.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: Yes. Yes, Your Honor.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: Yes.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: Yes.
William J. Brennan, Jr.: And all of these things together that could be done and [Inaudible]
Thomas R. Davis: That's right Your Honor. I think I can illustrate it by one specific illustration. Suppose Congress had passed a law that says -- that said that after you serve your term for draft evasion and are set loose in the United States again you shall never again have the right of free speech, this Court would strike that statute down in a minute and yet there isn't any real essential difference between what's happening. The other things that Your Honor has mentioned are privileges, affirmative privileges of citizenship, certain of the bonuses that come with it and surely it is established that the Congress has a right to limit those, but to takeaway the status itself is to takeaway the basic freedoms and that's what the Chief Justice was saying.
William J. Brennan, Jr.: [Inaudible]
Thomas R. Davis: No sir I think, if there is a basic element to citizenship it's right to be here, always.
Arthur J. Goldberg: Could we say -- could it be said you don't have a right to have a passport except to return to the United States?
Thomas R. Davis: Yes. It could Your Honor.
Potter Stewart: Well some will say a basic element is the right to travel from here.
Thomas R. Davis: That's right and we never can destroy that, because that goes back long before these present statutes that are in dispute, the right of voluntary relinquishment, certain opinions to --
Potter Stewart: Free movement too.
Thomas R. Davis: That's right.
Potter Stewart: Well I don't quite get it, if you put this in terms of a contract; you say that there is something absolutely invulnerable about citizenship as such --
Thomas R. Davis: That's right.
Potter Stewart: -- so far as involuntary action by the sovereign goes, but that a sovereign can deny diplomatic protection to a citizen abroad?
Thomas R. Davis: Yes he can.
Potter Stewart: Well isn't that also a breach of the contract if there is a contract?
Thomas R. Davis: No that's a sanction. To destroy citizenship is to destroy the basic status itself, not one of its bonuses or exterior attributes.
Potter Stewart: Well I don't quite get that. I honestly understand it, because it seems to me just a matter of degree on a difference in time. If you take away one-by-one each of these so called privileges, you end up with maybe somebody who is -- if you want to label him a citizen, you can, but he hasn't got any of the rights or privileges.
Thomas R. Davis: He has got a right to be here and that's what the Chief Justice said in Trop, that the essence of citizenship is the right to be here, the right to remain here, even if you've taken away these other exterior attributes and the contract remains intact, because what you've done to him short of that point is to impose sanctions upon him, which are entitled to impose.
Hugo L. Black: You certainly take away his right to vote as I understand. Could they take away his right to talk?
Thomas R. Davis: No that was the statute that I --
Hugo L. Black: Why, if they can take away the others?
Thomas R. Davis: Because that is an inherent -- there is nothing in the Bill of Rights, which gives a man a right to vote. But it is one of the basic American freedoms to express oneself freely, this Court would never tolerate a statute, which took away freedom of speech.
Hugo L. Black: But that's not --
Thomas R. Davis: After release from incarceration.
Hugo L. Black: [Inaudible]
Thomas R. Davis: Sir?
Hugo L. Black: Not because it's inherited, because the Constitution says that you should have right to do that.
Thomas R. Davis: Well that's right, I agree with that and I think it's implicit in the Constitution.
Hugo L. Black: What you understand was the object of putting it, right to citizenship in the Fourteenth Amendment.
Thomas R. Davis: Exactly that Your Honor.
Hugo L. Black: Have you reviewed the record on that?
Thomas R. Davis: Not of recent years Your Honor, but I certainly think that the reading of it, particularly as this Court spoke in Wong Kim Ark, and I was astonished to hear the government bring that case to the Court's attention again. I don't think that 1898 Court would have decided this case any other way than as I urge it, that the Fourteenth Amendment gives to the Congress the right to confer citizenship and not the power to take it away.
Hugo L. Black: It did not, in that amendment of course seek to define what would be the rights of this citizenship that they gave, but they left that to be developed.
Thomas R. Davis: They did.
Hugo L. Black: According to the constitutional -- within the constitutional limitation.
Thomas R. Davis: They did Your Honor, certainly. And certainly what we're doing here today is a part of that developmental process. Thank you Mr. Chief Justice.
Earl Warren: Very well.