Earl Warren: Number 8, United States, appellant, versus Eugene Frank Robel. We will start the argument right after recess.
Kevin T. Maroney: Mr. Chief Justice, may it please the Court. This is a criminal case which is here for reargument. It having been argued but not decided at the last term. As the Court will recall, the case is here on direct appeal from the Western District of Washington from a District Court's dismissal of the indictment which charged that the appellee unlawfully from November 1962 to the date of the indictment in May 1963 was engaged in employment in a defense facility designated as such by the Secretary of Defense while at the same time being a member of the Communist Party with knowledge of the designation as a defense facility of the Todd Shipyard where he was employed, and also with knowledge of the Communist parties having been finally ordered to register as a Communist-action organization. The Court will also recall that on appellee's motion in the District Court, the district judge ruled that in order for the statute under which the indictment was brought to be held constitutional within the decisions by this Court in Scales, Newdow, Brown and Aptheker. The Government would have to plead and prove that the defendant was an active member of the party, that he had the specific intent to bring about the violent overthrow of the Government and that he had knowledge, personal knowledge of the unlawful objectives of the party. In short, the District Court held that the Government would have to plead and prove what amounts to a Smith Act membership case, which of course which construction of the statute would make this statute a complete nullity. The Government of course in the lower court took the position that under the statute, we did not have to plead or prove any of those three elements. The pertinent parts of the statute --
Potter Stewart: Mr. Maroney, I feel -- is this case decided by the District Court before our circuit court?
Kevin T. Maroney: No, sir. Aptheker was one of the four cases of this Court that the District Court relied on in support of his constitutional interpretation of the statute. He specifically referred to and relied on this Court's decisions in Scales, Newdow, Brown and Aptheker. So that Aptheker was part of the basis for the district judge's decision. Now, the pertinent parts of the statute are set forth in our appendix on our brief on reargument at page 13. Section 3(3) of the statute of course defines a Communist-action organization, which the Court is familiar with that definition, as being an organization dominated and controlled by the Soviet Union and operated primarily to advance the objectives of the Soviet Union. The term facility' is also defined in the statute as being any plant, factory, or other manufacturing, producing or service establishment, airport, airport facility, vessel, pier, waterfront facility, mine, railroad, public utility, laboratory, station or other establishment or facility or any part thereof. The term defense facility' means any facility designated by the Secretary of Defense pursuant to Section 5(b). Now, Section 5 which is the critical part of the statute I believe for the purposes of the argument this morning, today. Section 5(a) says that when a Communist organization is registered and more specifically when the Communist organization is a Communist-action organization, it shall be unlawful for a member of the Communist-action organization to engage in an employment in any defense facility. Subsection B of that same section authorizes and directs the Secretary of Defense to designate facilities as defined in the previous -- the earlier Section 3(7). With respect to the operation of which, he finds and determines that the security of the United States requires the application of the provisions of subsection A, that is the prohibition against engaging in employment in a defense facility by a member of a Communist-action organization. In setting this case for reargument, this Court asked that we address ourselves specifically to an additional question which was not raised by the parties in their briefs. And that additional question is whether the delegation of authority to the Secretary of Defense to designate defense facilities satisfies pertinent constitutional standards. Now, since the First Amendment aspects and due process aspects of the case were fully argued at the last term and in light of this additional question having been raised by the Court, I intend to confine my argument primarily to that additional question of the constitutionality of the designation of authority or the delegation of authority to the Secretary of Defense. Briefly stated, the constitutional standards as to whether or not there is a proper delegation of authority by the legislature are (1) the establishment by the legislature of a legislative policy or a legislative purpose, and (2) the setting forth in the statute of an intelligible principle to govern the implementation of that legislative policy. A long line of cases, including the Hirabayashi case and Yakus, Lichter, Panama Refining, a number of other cases establishes the principle that when Congress specifies what job must be done, who is to do it and what is the scope of his authority, that is a permissible delegation by the legislation. Thus, in Yakus, this Court sustained the power of the administrator to fix prices of commodities which in his judgment would be fair and equitable and would effectuate the purposes of the Act, the purposes of the Act being to prevent inflation and that type of general statement of purpose. In the Hirabayashi case, the Act in question there authorized the military -- a military commander to prescribe military areas from which persons could be excluded whenever he deems such action necessary. Of course, in Hirabayashi, the Court was sustaining a conviction of a citizen of Japanese ancestry for violation of a curfew imposed by the military commander in the Pacific Coast areas adjacent -- pacific areas adjacent to the coast. And the Court, based on the legislative history and the -- considering what Congress was doing in enacting this statute said that the Court was -- or that the Congress was ratifying the executive order which had been issued by the president and which conferred authority on military commanders to establish these areas, the security areas, the purpose being of course to safeguard military resources against sabotage. And this Court in the Hirabayashi case held that considering the purpose of Congress and the legislative history which indicated that curfew orders were among the things that Congress had in mind in enacting the legislation, that there was no unconstitutional delegation of authority.
Earl Warren: Does the fact that that was a wartime measure and this is 20 years after the war make any difference?
Kevin T. Maroney: Well, I think it would make a difference insofar as to the reasonableness of the regulation or the restriction that was promulgated by the military commander, but I don't think it makes any difference as far as the question is concerned as to whether or not Congress made a lawful delegation of authority. I think that remains the same whether it's wartime or peacetime. Of course, the restrictions which were imposed by the military commander in the Hirabayashi case, that is a curfew of all citizens of Japanese ancestry from eight o'clock in the evening until six in the morning of going out upon the street in a city of course was much more drastic and obviously, I think that depended on the existence of an extreme emergency such as was present in the Pacific Coast in 1942. Similarly in the Lichter case which involved the Renegotiation Act which had been passed by Congress authorizing I think the Secretary of War and the Secretary of Navy to initiate action to recover excess profits and in determining whether or not Congress had laid down a sufficiently specific legislative purpose. The Court looked to the administrative interpretations of excess profits as enunciated I believe by some criteria laid down by the Navy department and which were before the Congress when it made some amendments in 1942 or 1943. And the Court held that since Congress was aware of this administrative implementation of the statute and enacted the amendments that this was a sufficient statement by the Congress -- expression by the Congress of the legislative policy and purpose. Now, in this case --
Earl Warren: Were the fact that that was a civil matter and this a criminal matter distinguish cases in any way?
Kevin T. Maroney: Well, I think there is some distinction, Your Honor. In a case such as that, the Renegotiation Act case or a price -- fixing of minimum prices and minimal wages, there is some distinction in that there is an order after an administrative hearing directed at the individual who is affected so that to a certain extent, I believe there is a greater latitude that has been shown by this Court in that type of case as far as to the specificity of the legislative purpose. And I think that's abundantly clear in the -- for example, in the federal communication statutes, regulatory statutes of that kind where the standard is just and reasonable rates or public convenience and necessity and so forth. This of course -- this statute, as we have argued in our main brief and submitted to the Court last term is an exercise of the war power and it would -- I would think that as for example in the field of foreign affairs where the Court has held that a broad discretion must be allowed to the president, I think it would be appropriate in this kind of a case since it does involve the war power that a broad discretion should be allowed to the executive branch of the Government. However, I think there's no need in this particular case for the Court to have to consider the grant of a broad discretion without identifiable guidelines because I think that this statute in its -- on the face of it and certainly in light of its legislative history makes it abundantly clear exactly what it was. That was the authority conferred on the Secretary of Defense. I think it's well within the limitations that this Court has required for delegation of this kind. Congress here in Section 5(a) has said that a member of a Communist-action organization, it's unlawful for a member of the Communist-action organization to be employed in a defense facility. The only thing that has been delegated to the Secretary of Defense is a determination by him based on the facts available to him to make the determination as to whether or not a particular facility is a defense facility. The -- now, the criteria that is set forth in the statute which he must use, must follow is the security of the United States requires that a particular facility be designated as a defense facility. Now, the appellee contends that this is a -- is an unduly vague criterion, the security of the United States. They say it's not susceptible of a definition which would confine in any way the Secretary of Defense. A somewhat similar problem of defining the security of the United States or determining the connotation of that phrase was faced by the Court of Appeals here in the District of Columbia in the case involving Scarbeck, Irvin Scarbeck, a former employee of the state department who had turned over classified information to an agent of the Polish government. He was -- he was charged and convicted with violating Section 4 of the same act, the Internal Security Act. Section 4 made it a criminal offense for an officer or an employee of the United States to furnish to a representative of a foreign government information that has been classified as affecting the security of the United States. The information which he turned over had been classified as defense information under Executive Order 10501 of the president. He said they're totally different. Information classified as defense information doesn't bring it within the purview of this statute which prohibits turning over information affecting the security of the United States. And the Court of Appeals in Scarbeck properly held, we think, as follows. They say appellant has not undertaken to show that defense information as described in the executive order is not a necessity information affecting the security of the United States within the meaning of Section 7(a)(3)(b) which is Section 4 of this statute. Common sense tells us that it is. Defense is one aspect of security and indeed, in their broad senses, the two terms have a very similar connotation. The legislative history as we have seen shows that Congress must have equated the two terms so that the Court of Appeals read the statute and the intent of Congress in utilizing this language as equating national defense with security. Now, I think it's perfectly apparent that that is exactly what Congress was doing.
William J. Brennan, Jr.: May I ask you, Mr. Maroney? I think when this case was last argued, this man -- what's his name -- Robel was still being employed at this defense facility, wasn't he?
Kevin T. Maroney: He still is as far as I know, Your Honor. That's correct.
William J. Brennan, Jr.: He hasn't been too much of a threat though.
Kevin T. Maroney: Well, of course, the purpose of the statute is prophylactic. It's to remove from a sensitive position a person who is currently and continuously a member of the Communist Party. Obviously, I think it would not be in the interest of the Communist Party or the International Communist Movement to continuously have incidents of sabotage other than when they might deem them to be valuable.
William J. Brennan, Jr.: How many years is he employed there, 10 or 12 years or more?
Kevin T. Maroney: The statute?
William J. Brennan, Jr.: No. He has been employed there --
Kevin T. Maroney: A considerable period of time, at least 10. Mr. Abt may be able to -- within my understanding is he's been a long time employee of the shipyard.
Earl Warren: What would be -- what would be the purpose of the Government in permitting him to work for all of these years in a sensitive facility of that kind and at the same time try to punish him and put him in a penitentiary for working there?
Kevin T. Maroney: This is the only statute by which the Government can exercise any control over his employment at Todd Shipyard.
Earl Warren: You mean they have no way of removing him?
Kevin T. Maroney: No, sir. He's not employee --
Earl Warren: How about those other cases like -- like the cafeteria worker in a defense facility that the woman who had been working there for years and was discharged because of an anonymous letter against her. They found a way to get rid of her.
Kevin T. Maroney: Well, of course Your Honor, in the Cafeteria Workers case, that was a government installation. It was a navy yard. Here, Todd Shipyards is a private shipyard. The Government does not operate it. The Government has no supervision over it at all other than in the performance of specific government contracts, for example, the building of ships and other than as to the possible applicability now of this statute. But other than that -- in other words, there's no security program as such for this type of facility except insofar as an employee of the facility might be working on a classified government contract.
Abe Fortas: Well then, isn't it rather strange, if that's so, that it's -- the Government can classify it as a defense facility for purposes of the criminal law. What you're saying is that it's sort of anomalous perhaps that the gGovernment -- this is not a sufficiently sensitive pose so that the Government can compel Todd Shipyards to get rid of him but on the other hand, it's sufficiently sensitive so that the fellow can be prosecuted for working there. It sounds --
Kevin T. Maroney: Well, I think -- I think it is sensitive, Your Honor. But the only authority that the Government -- that the executive has to take any action is authority which would be conferred on it by Congress or which it would get by virtue of a contract with the facility.
Abe Fortas: Well, yes, but the latter is kind of important, isn't it? But as you said, presumably the Government could in letting these defense contracts to Todd Shipyards contract for clearance for individual employees, whether or not they are working on any specific contract. And this situation seems to imply the Government is afraid that this Mr. Robel or whatever his name is, is a danger to the shipyard as a whole, including those parts of the shipyard that are engaged in the defense work. It seems if there were any logic in this situation that the Government would provide in the contract that the fellow can't work there.
Kevin T. Maroney: Well, the contracts which are issued by the Defense Department under the Industrial Security Program do provide for screening clearances to be approved by the military departments in connection with employees who are to be given access to classified information.
Abe Fortas: Well, what you're saying is this fellow for whatever reason that is so unimportant that he doesn't have to be subjected to the contractual screening process. But at the same time, it is so important that we can't -- the Government can't allow him to hold his job without being the subject of criminal prosecution. It seems to me that -- is that what it comes down to?
Kevin T. Maroney: No. I think what it comes down to is this, Your Honor, there is at present time employee security programs for the Government as the Court is well aware for the industrial personnel security program which involves access to classified information. Congress in passing this statute said there's a loophole. We need some kind of a --
William J. Brennan, Jr.: Where did it say that?
Kevin T. Maroney: Well, as we have pointed out in our brief from pages 12 to 29 of our brief last term, the testimony before the committees which were considering these bills and had been for a number of years prior, representatives of the Department of Defense, the president in his veto message indicated there was a desirability to cover this particular area.
William J. Brennan, Jr.: I thought the president and the Department of Justice, both at that time suggested that the existing security programs required only the slightest modification to do everything that the statute afforded to do. Am I wrong about that?
Kevin T. Maroney: Well, it couldn't have taken the position that the existing security programs covered this situation because they just don't as a factual matter.
William J. Brennan, Jr.: Well, as I understand it, what they represented was that the existing programs required only a slight modification completely to cover it. That's what the -- I would call that that's what the house supported.
Kevin T. Maroney: There was a bill before the committee before this section was finally decided on which would have made it a criminal offense for an employee of a defense contractor to become a member of an organization advocating the overthrow of the Government. No, I think it's specifically mentioned in the Communist Party. The Department of Justice objected to the enactment of that bill on the basis first that it would be a bill of attainder as specifically naming the Communist Party. And Congress -- oh, and also, there were no legislative findings. Now, in enacting this section, Congress of course removed the mention of the Communist Party, narrowed the scope of the definition to include members of Communist-action organizations and also made extensive legislative findings as to the necessity for this legislation, and of its concern that defense facilities be protected, must be protected from the dangers of sabotage.
William J. Brennan, Jr.: Is there any review, Mr. Maroney, anywhere of the Secretary of Defense's designation of a particular facility as a defense facility?
Kevin T. Maroney: Is there anywhere a designation?
William J. Brennan, Jr.: Is there anywhere a provision for review either administrative or judicial of a designation made by the Secretary of Defense?
Kevin T. Maroney: No, sir. And I think that the only place where there could be any review at all of the administrator's designation of a particular facility would be in connection with a criminal case and --
William J. Brennan, Jr.: Do you think that in the defending under this indictment, a challenge could be in interposed by way of defense to the designation of this shipyard as a defense facility?
Kevin T. Maroney: Not with respect to his discretion from a factual standpoint as to whether this is or isn't a vital defense facility.
William J. Brennan, Jr.: Well, that is to say then he doesn't even have a defense if this is not a defense facility to the criminal prosecution, does he?
Kevin T. Maroney: He would only have a defense if the Court would determine as a matter of law that the particular facility involved could not be a defense facility.
William J. Brennan, Jr.: Well, how -- by what standard would the Court determine that? Is there anything in the statute that says them?
Kevin T. Maroney: No. The statute of course conveys on the Secretary the discretion as I think it properly should. I mean obviously, there are factors --
William J. Brennan, Jr.: Well, if it does, then I take it all the Government has to prove is that he was a member of an action organization, that the Secretary designated this particular place of employment as a defense facility, that he was still employed there notwithstanding the direction he registered his organization as an action organization, and that's the end of the case, isn't it? What defense has he got?
Kevin T. Maroney: Well that he has knowledge, that it has been so designated by the Secretary and that he has knowledge that the Communist Party is under a final order to register as a Communist-action organization.
William J. Brennan, Jr.: You think those would be hard to do?
Kevin T. Maroney: Well, they may not be hard. I think that --
William J. Brennan, Jr.: If they pull that much, that's the end of it. If he knew of the designation of the party or the nomination of the party as an action organization that he himself is a member of that organization.
Kevin T. Maroney: That's right.
William J. Brennan, Jr.: That place was a defense facility.
Kevin T. Maroney: I think that is the end of it Your Honor.
William J. Brennan, Jr.: So that no matter what it maybe that the Secretary of Defense picks up and labels defense result, that's an unreviewable designation in either administratively or judicially or even in a criminal prosecution.
Kevin T. Maroney: Unless the Court could determine that it had no relationship, that the designation had no relationship as a matter of law.
William J. Brennan, Jr.: What authorize -- what's as the matter of law? What authorizes the Court to make a designation as a matter of law that the Secretary of Defense erred in designating this particular shift for the defense?
Kevin T. Maroney: Well, I think the designation of a shipyard by the Secretary of Defense pursuant to the statute is the kind of binding determination that the Congress has given to the Secretary. It's a similar authority which was given to the military commanders in the Hirabayashi case to take whatever action was necessary to protect military resources and the argument or there was a discussion by the Court that what he did was rationally connected with protection against sabotage. Now, Mr. Justice Douglas and his concern ?
William J. Brennan, Jr.: What does this mean? As I get it, what he may designate as a defense facility as any plant, factory or other manufacturing, producing or servicing establishment? I take it that would be the longer you tailor the things -- military uniforms.
Kevin T. Maroney: If it had a relation to the National Defense.
William J. Brennan, Jr.: Airport facility vessel here, waterfront facility, mine, railroad, public utility, laboratory station or other establishment or facility or any part, division or department of any that foregoes. That's very broad.
Kevin T. Maroney: But they all have to be limit by the phrase, the Secretary determines that the security of the United States require protection against sabotage. Now, that --
William J. Brennan, Jr.: That determination is reviewable by nobody.
Kevin T. Maroney: That's right and I think that that's completely consistent with the Hirabayashi case. And the Court in the Hirabayashi didn't say, well, eight o'clock in the evening is not reasonable. Maybe it should have been nine o'clock in the evening that the curfew should have started. What the Court did decide was that the regulation that the military commander did impose at a rational connection with the purposes that Congress have in legislating protection against sabotage, protection of war resources. Since the Court made that determination when the basis of the facts known to it, that was the end of the matter. I don't think that there was any question of challenging the judgment of the military commander or as to whether or not another judgment would have placed a different time limit or different areas to be involved in the so-called military areas and as I started to mention a few minutes ago in connection with that very problem in the Hirabayashi case, Mr. Justice Douglas in his concurring opinion pointed out that where the orders under the present act have some relation to a protection against espionage and against sabotage, our test is at an end. That is that the Court should not undertake to look at all the facts and circumstances to -- as to whether or not this was a reasonable regulation of the military command.
Abe Fortas: Mr. Maroney, may I ask a question. I think I ask this when you were here last time. I've forgotten what the answer was. Suppose Mr. Robel belonged to an organization that says, this organization is substantially directed, dominated and controlled by the Communist Chinese government. Would that be within the scope of this Act or is this Act confined to organizations dominated or controlled by the Soviet Union?
Kevin T. Maroney: The statute, Your Honor, is confined to organizations dominated by the Soviet Union as a matter of legislative construction as enunciated by this Court.
Abe Fortas: And as a matter of what it worked in a matter of its language too, isn't it?
Kevin T. Maroney: Well, the language of the statute literally says, the foreign government which is the leader of international Communist movement and --
Abe Fortas: The foreign government controlling the world Communist movement.
Kevin T. Maroney: And this Court held that to be the Soviet Union as a matter of legislative construction.
Abe Fortas: And presumably, nowadays, it would not include those organizations. As I understand, there are some that the circuit there affiliated with China and not with the Soviet Union, is that right?
Kevin T. Maroney: That's right, Your Honor. In other words, if an organization were dominated by the Communist Chinese government and not by the Soviet Government --
Abe Fortas: Would you say that that represents the legislative judgment that one is more dangerous than the other?
Kevin T. Maroney: No sir. I just don't think that the situation that exists today had crystallized at the time of the legislative findings in 1950. On the other hand, I certainly disagree with the contention which the appellee tries to make out of that change in situation that this completely nullify the fact that we now have a Communist Chinese and possibly their own small orbit Communist nations that completely nullifies all the findings of the Internal Security Act of 1950 that there no longer is an International Communist Movement led by the Soviet Union and I just think that factually, that's completely erroneous.
Abe Fortas: Now, I was not exploring that. I hope you understand what I was exploring.
Kevin T. Maroney: No sir, I understand it.
Abe Fortas: That is the restriction of this Act, the one part of the world Communist movement. That's what I was presenting to you --
Kevin T. Maroney: That's right. I would not cover it.
Abe Fortas: -- not about raising a problem.
Kevin T. Maroney: It would not cover the hypothetical situation that Your Honor raises.
William J. Brennan, Jr.: Mr. Maroney, I gather -- we approach this problem on the premise don't we that the right to hold specific body of employment is a constitutionally guaranteed right, isn't it? Does this Court say that in the Greene and McElroy?
Kevin T. Maroney: Well, I think it is --
William J. Brennan, Jr.: Well, let me read it for you.
Kevin T. Maroney: It's free from governmental interference anyway.
William J. Brennan, Jr.: Now, that's free from unreasonable governmental interference.
Kevin T. Maroney: Unreasonable government interference.
William J. Brennan, Jr.: That's what we said.
Kevin T. Maroney: Yes.
William J. Brennan, Jr.: And you don't think that it's a reasonable governmental interference to regulate that right from the case of members of action organization to the extent of denying him employment anywhere that it is unreviewable discussion the Secretary of Defense designates facility as defense facilities which bargain from employment. At least, that's the issue, isn't it?
Kevin T. Maroney: That's the issue, Your Honor, but to say it's unreviewable, I think --
William J. Brennan, Jr.: I thought you told me it was unreviewable.
Kevin T. Maroney: Well, it's not reviewable as to whether or not his discretion should be substituted for. I think that the Court --
William J. Brennan, Jr.: It's not reviewable is that what's not reviewable. No one can be prosecuted who is a member of an actual organization with knowledge that the organization has been ordered to (Inaudible). No one can be prosecuted for working in private employment from the statute unless the facility in which he works has been designated a defense facility.
Kevin T. Maroney: That's right.
William J. Brennan, Jr.: And that's the opening basis in there which the prosecution begins and that determination is not reviewable by anybody.
Kevin T. Maroney: That's right, except on the grounds that the designation might be arbitrary and capricious. I think that's the only ground that it would be subject to review.
William J. Brennan, Jr.: Well, that's why I don't follow. I don't follow that. Is the government conceding then that the real federal review of arbitrariness on the part of a designation of a particular facility by the Secretary of Defense?
Kevin T. Maroney: As to whether it's arbitrary or capricious. I think that could be reviewed, yes. But I think that once it appears --
William J. Brennan, Jr.: Where do you find that in the statute for the legislative history?
Kevin T. Maroney: Well, it is in the statute but I think it's a similar standard for review which the Court was using in Hirabayashi but once it appears from the circumstances that it has -- that the designation has a relationship to national defense that it has --
William J. Brennan, Jr.: But what circumstances ever appear. All that this indictment alleges is that he was a member of the Communist Party of the United States but in such and such a date, the Todd Shipyard was designated a defense facility by the Secretary of Defense that the -- he was working there at the time and with knowledge of the designation and knowledge of the requirement that the party was ordered to register, he continued in his inquiry, that's all there is, isn't it?
Kevin T. Maroney: That's right, Your Honor.
William J. Brennan, Jr.: What -- and he can interpose you're telling us now a defense that the Secretary's designation of Todd Shipyard is arbitrary and capricious.
Kevin T. Maroney: I think he could make the contention and the Court could undertake a consideration of whether or not this was an arbitrary and capricious designation. Now, I certainly think that once it appears to the -- once the Court is apprised of the fact that this is a shipyard that it has some relationship on the face of things to national defense and I think the Court is not entitled to undertake an investigation as to whether or not this Secretary's judgment should be substituted for. In that respect, I think it's no different than many statutes. For example, under the price -- the regulation of commodity prices, suppose that the administrator decided that a loaf of bread should cost $0.26 and no more. Well, certainly, the Court is not entitled to undertake a de novo review of whether or not that's a good judgment by the administrator and decide that it should have been $0.28 or $0.27 or $0.23 because this was a discretion that was conferred on him by the Congress. And as long as -- what he does is in effectuation of the Congressional policy in purpose in enacting the statute, he has an authority to do it. Now, moreover, it's perfectly clear from the legislative history that's involved in this case and especially in connection with the 1962 amendments, Your Honors will recall that the statute in 1950 and originally, it required the Secretary of Defense to prepare a list of defense facilities and such list was to be published in the Federal Register. When the order against the Communist Party became final in 1961, the Secretary was confronted for the first time with the necessity of implementing the statute. He did prepare a list of defense facilities and it was perfectly apparent in 1961 as it had been to President Truman in 1950 on the point -- one of the points in which he vetoed the Bill that the publication of Federal Register of a list of those defense facilities would be providing a guidebook for sabotage. It would be providing a list of military targets, and for that reason, the Defense Department went back to Congress and ask for an amendment to the statute eliminating the necessity of publication in the Federal Register. At that time in 1962, when Congress had these amendments under consideration, the Secretary of Defense advised the Congress of five specific criteria which he was using in implementing the statute.
William J. Brennan, Jr.: Which I take it, he may change anytime he wishes to, can't he? Nothing binding about those though, is it?
Kevin T. Maroney: No, but insofar as a designation would come within these five, it would certainly be within the authority conferred on him.
William J. Brennan, Jr.: But he can make it six, seven, 20, 25 nothing the statute says you can't do. Incidentally --
Kevin T. Maroney: I think the limitation in the statute, Your Honor, is a facility that the interest of National Defense requires protection against sabotage. I think, that's the --
William J. Brennan, Jr.: Is there any significance in this? The Act provides rather elaborately for both administrative determination and judicial review of the matter whether a particular organization is an action organization, does it?
Kevin T. Maroney: Yes sir.
William J. Brennan, Jr.: You don't think it's significant that the Act makes no provision whatever for any kind of review of the Secretary's designation as bearing on whether Congress intended that that designation should be anywhere subject to these, even on a basis of arbitrary and capricious that you suggest?
Kevin T. Maroney: I don't know where designation like this could be reviewed as far as the reasonableness or the --
William J. Brennan, Jr.: Well obviously, you can see that's the thing that's bothering me.
Kevin T. Maroney: Yes sir. The list that was originally provided for when it was brought to the attention of the Congress, that the publication of this list would be bad from a national defense standpoint, I think highlights the fact that there should not be review. That Congress did do not intend to review of the underlying rationale.
William J. Brennan, Jr.: Exactly. That's why I don't quite understand why you suggest that nevertheless if it's something called arbitrary and capricious, a court can do something about it.
Kevin T. Maroney: Well, I think that there could be, Your Honor. It could --
William J. Brennan, Jr.: I wonder how you prove it's arbitrary.
Earl Warren: I guess there was a case -- suppose you had Gardner out on the small branch of a railroad and he was accused of being a Communist and having sought employment from a railroad that the Secretary of Defense has declared to be a facility. How can he go about determining whether that was arbitrary as applied to him or not? But does he just have to go through the rear and become convicted and come to the Supreme Court declined out or is there anyway that he can have determine whether or not that action of the Secretary is applied to him as arbitrary.
Kevin T. Maroney: I don't think there is Your Honor anyway for him to challenge the merits unless it should appear to the Court and then say, I have to quote that arbitrary and capricious and you always do. But certainly, as a matter of discretion conferred on the Secretary, I don't think it is reviewable.
Earl Warren: But do you know of any act that that has been sustained by this Court that is on all force with this one.
Kevin T. Maroney: I think Hirabayashi.
Earl Warren: I beg your pardon.
Kevin T. Maroney: I think Hirabayashi is on all force with this. And Hirabayashi --
Byron R. White: You mean on delegation.
Kevin T. Maroney: On delegation and also on reviewability. I think it's the same thing with Hirabayashi. There was no reviewability there as to whether the military commander's determination that --
Byron R. White: -- arbitrariness and capricious is concerned as long as there is rational connection.
Kevin T. Maroney: That's right. As long as there is rational connection then I think the Court's duty has come to an end.
William J. Brennan, Jr.: Of course there, you weren't were we dealing with a right -- constitutional guaranteed right as here, the right to regulate?
Kevin T. Maroney: Certainly, the right to go out in the street in the evening after eight o'clock at night and before six in the morning.
William J. Brennan, Jr.: Is that constitutional there?
Kevin T. Maroney: I think so.
Byron R. White: (Inaudible)
Kevin T. Maroney: I mean I -- for example, I think we have a constitutional right to walk down the street. Now, it can be reasonably infringed. If there is a fire, they can detour us around the block but absent some lawful and proper governmental interest, we do have a right to walk down the street to come out of our houses, to go abroad and the city. In Hirabayashi, because of the agencies of the war situation, because of the judgment made by the military commander as to the necessities of the situation, he imposed a curfew on citizens of Japanese ancestor and citizens I think of possibly Germany ancestry, I don't know. But Japanese ancestry was involved.
Earl Warren: Do you think they can do the same thing in time of peace?
Kevin T. Maroney: Oh no, but that's only because it's a more stringent thing that was done. I think what was done in Hirabayashi is much more stringent than what is being done here. In the first place, a person of Japanese ancestry couldn't do anything about it once 1941 or 42 came. A member of a Communist-action organization who wants to continue employment in a defense facility, he can do something about it. He can get out of the organization at least or he can find another job but so that what was resorted to in Hirabayashi is much more detrimental, it seems to me, than what is resorted to by Congress here. And it seems to me that the purpose that's being accomplished here is no different and if Congress -- pardon me, have set up a screening program for all persons who are employed in defense facilities. The same is done by the military under the industrial personnel security program. And certainly, if a member of the Communist Party having knowledge that the organization has been found to be and is under a final order to register as a Communist-action organization and has been found to be after extensive administrative proceedings, an organization dominated and controlled by the Soviet Union and operated primarily to advance the objectives of the Soviet Union and he applied for a clearance under a screening program with the intention of continuing in the party, I think it would be perfectly reasonable to deny him a clearance on that basis not because his loyalty or his lack of loyalty has been demonstrated but because it's in doubt. And the First Amendment does not require where a national defense is the ultimate objective. It does not require us to take a chance on persons who knowingly continue as members in a foreign dominated organization. Thank you.
Earl Warren: Mr. Abt.
John J. Abt: Thank you, Mr. Chief Justice. May it please the Court. I should like to defer discussion of the delegation question until a little later of my argument and start with the due process -- substantive due process First Amendment question that the case presents. Section 5(a)(1)(D) provides that upon the issuance of a final registration order requiring a Communist-action organization to register under the Act, it becomes a crime for a member of the organization with knowledge or notice of the order and the designation to hold or even to apply for employment in a defense facility, and let me say that what notice' or knowledge' means under this statute is simply this, a man has notice of the issuance of the order by virtue of its publication in the Federal Register. He has notice of the designation of a plant, the plant in which he works or which he applies for a job as a defense facility by virtue of the posting in the plant of notices of a fact of a designation. That's all the notice' and knowledge' mean under this section of this statute. Now, the indictment here charges the existence of a final registration order against the Communist Party ordering it to register as a Communist-action organization, the designation by the Secretary of Defense of the Seattle division of Todd Shipyards as a defense facility, a membership by Robel in the Communist Party, and his employment at Todd's with knowledge and notice of both of the issuance of the order and of the designation of the plant as a defense facility. Section 5 both on its face and as applied in this indictment makes Robel guilty of an offense even though he does not know that the Communist Party has any unlawful purpose of any kind and even though he rejects as false and unwarranted of the characterization given the party by the Subversive Activities Control Board as a Soviet agent in its 1953 registration order. It's equally irrelevant to Robel's guilt under the statute and the indictment that he may have joined the party and remained a member for a completely legitimate political purpose for the accomplishment of perfectly lawful political objectives and that his activity on behalf of the organization has been lawful, peaceable and constitutionally protected. Thus, although Section 5 parades as an anti-espionage and anti-sabotage law as written and applied, it reaches members of the Communist Party who have no criminal propensities, whose conduct and state of mind are completely blameless and who as the Government concedes in its brief, and I quote, would never consider committing either espionage or sabotage. As several members of the Court have already noted, the over breadth of the statute is exemplified by the facts in this case. When he was indicted in 1953, the district judge found that Robel had been a member of the Communist Party and is an employee of the Todd Shipyards for upwards of ten years.
Byron R. White: Is that 1953?
John J. Abt: 1963, I'm sorry, Your Honor. But he had at that time been employed at least since 1953. Following his arrest, he was released on his own recognizance and promptly returned to his job where he's working to this very day obviously to the satisfaction of everybody concerned. As Mr. Justice Fortas pointed out, if the Government had wanted to -- thought he was a security risk and wanted him fired, he's got plenty of leverage to use against the Todd Shipyards to get him fired. If the Todd Shipyards saw that he was a security risk in the job where he's working at --
Abe Fortas: I didn't mean to imply that. What I've said --
John J. Abt: I'm sorry --
Abe Fortas: -- is that the provision, there is a power in the government to provide in contract for a straining procedure.
John J. Abt: Correct.
Abe Fortas: I was not suggesting by any means, Mr. Abt, that the Government can get together in Todd Shipyards and say You're fired.
John J. Abt: I withdraw the attribution to you, Mr. Justice Fortas. It was an error, but I would suggest that if -- and I'm not suggesting any improper leverage that if the Government thought that he was a security risk in the job that he held, he would no longer be holding that job.
Potter Stewart: You're suggesting that it would not be improper in the absence of any statutory authority?
John J. Abt: If he was working on classified work, Your Honor, or --
Potter Stewart: Well, I don't think -- it's not a very material point.
John J. Abt: And certainly, if Todd Shipyards thought that he was a security risk and was about to or threatened or there was any danger of the sabotage or espionage on his part that Todd's would have found a way to fire him and that could have done very easily.
Hugo L. Black: Are they free to do so?
John J. Abt: To the best of my knowledge, they're perfectly free to do so, Mr. Justice Black.
Hugo L. Black: Is there a union contract?
John J. Abt: There's a union contract. And there might possibly be a grievance under the union contract. But if they can establish that the man is a security risk, I'm sure that the union is not going to defend his right to that job. And there's been no attempt on the part of the shipyard to do anything about it. I take it that they're very -- that they're very delighted to have a first-class machinist on the job. Machinists are hard to come by these days.
Earl Warren: Are you familiar with the Philco case which came along just recently?
John J. Abt: There is not much to remind me, Mr. Chief Justice. It would be absurd to suppose that America would be a safer place to live in if this man were sent to jail and thereby deprived of both of his liberty and of the job that he's held for upwards of 15 years. When the motion to dismiss this case was made in the District Court, the Court held the motion in advance pending the decision by this Court of the Aptheker case and they didn't hand down the decision, Mr. Justice Stewart, for about a year awaiting your decision on Aptheker. When Aptheker came down, the district judge dismissed the indictment. He recognized that Section 5 in the light of Aptheker, Scales and the Ninth Circuit's opinion in Archie Brown versus United States would violate the First Amendment and due process as an indiscriminate and overbroad restraint on protected freedoms unless the elements of knowledge by the accused that the Communist Party has an unlawful purpose, an intent on the part of the accused to effectuate that purpose and some kind of activity toward that end could be read into the statute by interpretation. He therefore sought to save the statute by reading these elements into it and dismissed the indictment for failing to allege him. We agree with the Government that Section 5 doesn't bear the interpretation that the District Court placed on it not because it would make the Act a nullity but because it flies in the face of this Court's decision in the Aptheker case where the identical question of interpretation was presented under Section 6 of the Act, the passport prohibition of the Act, and the decision there that Section 6 can't be rewritten to supply the missing elements we think is applicable with equal force to Section 5. Without these elements, Section 5 violates due process and the First Amendment by placing overbroad arbitrary and unreasonable restraints both upon the liberty of an individual to hold private employment protected by due process and upon his freedom of association protected by the First Amendment.
Speaker: (Inaudible)
John J. Abt: I would say not under your decisions, Mr. Justice Harlan.
Speaker: (Inaudible)
John J. Abt: Pardon? I'm coming to them in just a moment, if I may. The unconstitutionality of this section under both the First and Fifth Amendments is established by the decision in Aptheker, by Elfbrandt versus Russell and by Keyishian versus the Board of Regents, the latter case decided only last term after this case was first argued. Aptheker invalidated Section 6 of the Act for making it a crime for a member of an organization against which a final registration order has been issued to apply for or use a passport. Elfbrandt struck down an Arizona statute denying public employment to members of the Communist Party with notice that the party had an unlawful purpose -- and with knowledge, I'm sorry to say. Sorry, that the party had an unlawful purpose. And Keyishian invalidated a complex of New York statutes whose effect was to make membership in the Communist Party with knowledge that an advocated forcible overthrow a bar to public employment.
Speaker: (Inaudible)
John J. Abt: No, they did not --
Speaker: (Inaudible)
John J. Abt: I don't think -- no, I don't think that that's -- it makes the material different, sir. The army is the most extreme and perhaps an arguable case, Mr. Justice Harlan. But certainly, the right to employment in peace time seems to me is squarely within these cases, certainly squarely within the cases that relate to state employment. A state employment can be at least as sensitive and many cases more sensitive than employment of the sort that -- that Robel is engaged in. I can get you to think of all kinds of cases, membership or an employee of the Public Service Commission who have access to all the public utilities in the state, member of the state police force, and none of these cases, neither Keyishian nor Elfbrandt is qualified at all in terms of the nature of the job.
Speaker: (Inaudible)
John J. Abt: That's correct, right. And I think under those three cases, Mr. Justice Harlan, that Congress didn't have the power to pass it and --
William J. Brennan, Jr.: Well, I wonder -- we have another question. Even if it has power to pass it, is this the way constitutionally can be done?
John J. Abt: I want to come to that a little later, but first on the power to pass it, that is to say on the substantive due process and First Amendment questions, it seems to me that the question is concluded by the principle stated in Keyishian, which summarized or capsulized the decisions in all three cases, Aptheker, Elfbrandt and Keyishian, and it's very brief I want to read it, ?Legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations. And since the employment sanction of Section 5 is imposed on a member completely without regard to his intent or his activity, it violates that principle. Indeed, the case for the application of the principle is stronger here than in Elfbrandt and Keyishian for they dealt not with private but with public employment in which the Government has a proprietary as well as a security interest. And the statutes they invalidated impose civil sanctions only while here, we have a criminal statute. Moreover, section --
William J. Brennan, Jr.: You don't think there might be a difference, Mr. Abt, between teaching and working in a Defense Department?
John J. Abt: Yeah, but the New York statute, it went far beyond teaching. It went to every form of --
William J. Brennan, Jr.: Keyishian only involved teaching.
John J. Abt: No, Keyishian as I read it, Mr. Justice Brennan, involved the section of the New York statute which made it a disqualification for public employment.
William J. Brennan, Jr.: But everybody involved there is a teacher.
John J. Abt: In that particular case, but --
William J. Brennan, Jr.: I forget these things pretty quickly.
John J. Abt: But as I read your opinion, you struck down a statute which disqualified -- it was disqualification for any kind of public --
William J. Brennan, Jr.: Well, let me get back to the question. Don't you think there may be a difference between teaching and working for this purpose?
John J. Abt: Well, I could give you cases -- both ways --
William J. Brennan, Jr.: Well, I'm just wondering on the question whether it can be a prophylactic rule if it reaches all communists as long as he's a member of the organization without regard to whether the kind you say Robel is --
John J. Abt: I don't think that can be.
William J. Brennan, Jr.: You don't think so? I'm not so sure.
John J. Abt: Well, Mr. Justice Harlan posed the case of a member of the Armed Forces which I suppose is the most extreme case. I'd be prepared to argue that the principle that you set forth in Keyishian is applicable there, but I don't -- I don't have to argue that today because we're not talking about the army.
Abe Fortas: But you are talking about a special category, which is a category arguably of people employed in defense facilities, and the question is whether the Keyishian principle applies to that segment. I think that is a precise issue here. It's not that this is not a general argument or whether it is not a general disqualification or a general statute imposed in criminal penalty for employment, and it's not a certain practical employment namely employment in a defense facility.
John J. Abt: Yes, but both Keyishian and Elfbrandt related to every sort of state employment.
Abe Fortas: I understand that and --
John J. Abt: And Mr. Justice Douglas said in Elfbrandt --
Abe Fortas: And arguably, this is a more discreet statute as Elfbrandt and Keyishian said applied to -- which they did not apply just to those state employees who were in the defense connected state work; they're not.
John J. Abt: It included such employees.
Abe Fortas: Well, that was not the issue before the Court in those cases.
John J. Abt: Additionally, Mr. Justice Fortas, the statute in this case goes far beyond the statutes in Elfbrandt and Keyishian because it sanctions membership even though the member has no knowledge of any unlawful purpose on the part of the organization. Indeed, it sanctions membership even though the organization has no unlawful purpose and that happens to be the situation in this case. They're a part of the Subversive Activities Control Board that a company in its registration order against the Communist Party reviewed the history of the party from its organization in 1919 to 1953 in the most minute detail. It found that the party operated primarily to advance the ultimate objective of the world Communist movement, but it didn't find a single case, single instance of espionage, sabotage or other unlawful conduct on the part of the party or any of its members in the whole period under review. And the report is equally bare of any finding of unlawful advocacy. At most, it found that the party advocated forcible overthrow as a matter of abstract and hence constitutionally protected doctrine, and this Court so viewed the findings in its 1961 decision affirming a registration order. Majority held that a finding of unlawful acts or advocacy was not a constitutional requisite to the validity of the order because as Mr. Justice Frankfurter said in his opinion, registration is a regulatory, not a prohibitory measure. We disagree with this conclusion for the reasons that were stated by the Chief Justice in his dissent. But whatever the case with registration, Section 5 is clearly a prohibitory criminal statute. Accordingly on the logic of the majority opinion in 1961, the board's findings are insufficient to support the application of Section 5, a criminal statute, to the members of the Communist Party. The sweep of Section 5 is too broad and indiscriminate for an additional reason. It applies to every job and any establishment that's been designated as a defense facility including jobs that are not security sensitive and from which there's no rational reason for excluding persons even though they may conceivably qualify as security risks. It's perfectly clear that if the purpose of the section were to provide protection against espionage and sabotage which alleged extensible purpose, this could have been accomplished by less drastic, more discreet, more discriminating means. These are exemplified first of all by the industrial security program to which Mr. Maroney referred for the screening of employees of defense contractors. This program dates all the way back to World War II and evidently has proved to be an adequate and satisfactory security measure. Mr. Maroney says that this statute is nothing but a screening program. But of course, it is not. It's much more drastic and less discriminating in three major respects. First, the industrial screening program does not provide that membership in a communist organization shall be disqualifying per se but makes membership only one factor to be considered in the light of all the others, all the surrounding circumstances in determining whether an employee is a security risk. Secondly, the denial of security clearance is not a bar to all defense employment but only to jobs requiring access to classified information. And finally, the sanctions of the program are civil only, exclusion from the job and not criminal prosecution. The adequacy of the approach of the industrial security program is attested by the fact that it was adopted by the Presidential Commission in Government Security in legislation that recommended in 1957 and as already been pointed out in the argument by the Department of Justice which took the same position on the letter to Congress while the Act was under debate and by President Truman in his veto message, all of whom call the a blunder breadth approach such as taken by Section 5 ill-considered objectionable and unnecessary.
Byron R. White: Mr. Abt, you say the screening program applies only to certain jobs, certain positions.
John J. Abt: Yes.
Byron R. White: How are they described?
John J. Abt: Persons who have access to classified information, Mr. Justice White.
Byron R. White: And that is narrower or broader than jobs which might affect the security of the United States.
John J. Abt: Of course. I'm sorry, broader than jobs which might affect the security of United States? Well, certainly as applied by the Secretary, and I'm coming to that -- to the question at the moment. The latter is much broader than the former. Robel has no access to classified information and yet, Section 5 has been made applicable to him. Time has confirmed the accuracy of the characterizations of both the Commission on Government Security, the Department of Justice and President Truman in his veto message. It's now 17 years since Section 5 has been on the books and all that time, it's been invoked only once and then in this case against a man who represents no danger to our security or to anything else. And the Government doesn't and can't cite a single case of espionage or sabotage either before or after the enactment of the act which Section 5 might have prevented or which would have been punishable under Section 5. Now, I'd like to turn to the delegation question on which the Court directed argument. It's our position that the authority given the Secretary of Defense to designate the enterprises where it shall be a crime for a Communist to hold or to even apply for employment violates the constitutional prohibition against the delegation of legislative authority. The violation results from the fact that Congress failed to specify standards or to provide administrative procedures to govern the exercise of the Secretary's authority. The lack of standards appears first from Section 3(7) which defines the term facility' so broadly, as I believe Mr. Justice Brennan earlier pointed out as to include virtually any enterprise that employs people. Section 5(b) authorizes the Secretary to make the employment sanction applicable to any facility simply by designating it as a defense facility, and all we need to do to make this designation is to find that it's required by the security of the United States. The Act, unlike for example the statute under consideration in Yakus, the Act doesn't specify any considerations or criteria for the guidance of the Secretary in deciding whether or not he can make a finding at a particular facility is required to be designated by the security of the United States, nor can any guidelines be spelled out of the findings of Section 2 of the Act. The Government in its brief pointed to the recital of Section 2(11) of the Act, and I quoted, The agents of Communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances and form or manner successfully evasive of existing law. But this skip of congressional hyperbole tells a Secretary nothing about how or where these supposed tactics are to be employed and that therefore supplies the Secretary with no criteria for administering Section 5(b). The fact is that the Act places no restraint on the authority of the Secretary to curtail and virtually to eliminate the employment opportunities open to communists other than his own judgment as to what the national security requires. And any judgment on that issue is a policy judgment which necessarily turns on the predilections and prejudices of the particular Secretary of Defense who happens to make that judgment. Hence, facilities need to have little or nothing to do with the national defense as we know it. If some Secretary of Defense were to conclude that communists are a menace to the national security in any employment they hold, he has the authority under the Act to foreclose them from practically all means of livelihood. The subjective and expansive character the securities concept is reflected in Justice Jackson's observation in the Knauff case and I quote, Security is like liberty in that many are the crimes that are committed in its name. But Section 1 Article 1 at least makes commission of such crimes prerogative of Congress and precludes it from licensing at administrative agency or officer to commit. The unconstitutionality of the Act's delegation is established by Panama Refining versus Ryan which invalidated the section of the National Industrial Recovery Act authorizing a president to prohibit the interstate transportation of oil in excess of state -- withdrawn in excess of state quotas. The Court found nothing in this statute which restricted or controlled the president in the exercise of his authority and therefore held the delegation to him unconstitutional because, and I quote from the decision, it gives a president an unlimited authority to determine the policy and to lay down the prohibition or not to lay it down as he may see fit. The Secretary's authority to lay down or not to lay down the prohibition of Section 5(a)(1)(D) is similarly unlimited. To hold otherwise, because the Act calls for a finding that the security of the United States requires a prohibition would reduce compliance of Article 1 Section 1 to the pit of ceremonial rhetoric. The unlimited nature of the Secretary's authority also appears from the lack of any requirement that he states the facts on which he bases his finding. The Act does not require him to account for or explain his actions in any way. So in the present case, nothing in the indictment or elsewhere on the record indicates why Robel's place of employment was designated. All we are told about it is its name. Mr. Maroney says that its name shows that it's a shipyard. But in this day of the conglomerate merger, the Todd Shipyards Corporation, Seattle Division is just as likely to be a manufacturer of cosmetics or a publisher of comic books, as a builder of ships. And if it is a builder of ships, a builder of what kind of ships? Nothing in the indictment, nothing in the record gives us the answer. The lack of any objective standards in the Act is aggravated also by the denial of any opportunity for a hearing on or a traditional review of his designations. In our initial brief last term, we showed that in this aspect, the Act violates procedural due process. I think an answer to Mr. Justice Brennan's question that it's perfectly clear that Congress did not intend any kind of review whatsoever of the Secretary's determination. But even if that were to become possible for Robel to secure a review of the Secretary's determination in the course of his criminal trial, that wouldn't satisfy constitutional requirements. Under the Yakus case and other decisions of this Court, a man is not required to stake his liberty as a price of testing the validity of an administrative determination. He's entitled to that in a civil suit before he is criminally prosecuted. So I say the absence of these procedural safeguards as we showed in our earlier brief is a violation of procedural due process. But is also supports the conclusion that the delegation to the Secretary oversteps constitutional limitations. It was on this ground for example the absence of any administrative safeguards that the Court in the Schechter case distinguish statutes like the interstate commerce, federal trade commission and radio commission acts from the code-making provisions of the NIRA which provided for no administrative safeguards in terms of hearings and judicial review. Finally, just as the Court has insisted on precision of regulation in statutes that infringed basic freedoms, so do precision as required in delegations of authority to curtail these freedoms. Section 5 strikes the basic freedoms by prohibiting employment to persons solely because of their political association. The minimal constitutional requirement I suggest of such a statute is to define the area of the employments that may be prohibited in a reasonably specific and intelligible fashion. This Congress has not done it. Instead, it has given the Secretary unfettered authority to declare almost any place of employment off limits to Communists. So long as Section 5 remains on the statute books, every member of the Communist Party, no matter what his means of livelihood, risks waking up some morning to discover that a designation by the Secretary has subjected him to a possible five-year prison sentence merely for the crime of reporting to work. Thus, the substance of over breadth of Section 5 that I've discussed earlier is complimented by this overbroad delegation of authority. Each accentuates the chilling effect of the other on freedom of association. The Government argues that any initial defect in the delegation to the Secretary was secured -- was cured by the 1962 amendments to the Act which it says -- Mr. Maroney argued a few moments ago, a ratified and administrative determination interpretation of the term defense facilities' which was given by the Secretary of -- or the Department of Defense in hearing some of the amendments. But there was no such administrative determination. Congress was merely informed that the Defense Department had prepared what it itself described as a tentative list of the facilities to be designated, which of course was not binding on the department or on anybody else. And there's nothing either in the committee hearings or reports to suggest that the Secretary or Congress regarded this tentative list as delineating the categories of facilities which the Secretary was authorized to designate. Now, Mr. Maroney in his argument relied I take it heavily if not almost exclusively on the decision on Hirabayashi to sustain the delegation in this case. But whatever else may be said about the decision in that case in retrospect, I submit that it's perfectly ridiculous to analogize a present case to one that involved the wartime authority to a commanding officer to cope with an imminent enemy invasion of the State of California. I'd like to turn now to two points that the Government has never briefed or argued in this case. The first involves a matter of statutory construction. It is that the indictment is defective because it alleges only that the Communist Party has been ordered to register as a Communist organization but not that the party is in fact a Communist-action organization. The Government omitted the latter allegation because it interprets Section 5 as making the registration order against the party conclusive of its character for the purpose of any prosecutions under the section. This interpretation first of all is contrary to the text of the Act. The introductory clauses both of Section 5 and of Section 5(a)(1)(D) make it clear that they're applicable only to members of an organization which both is a Communist-action organization and which has been ordered to register as such. As our initial brief showed, the comparative wording of other sections of the Act demonstrates that this result was deliberate on the part of Congress and that it deliberately required proof of the character of the organization in the criminal proceeding rather than making the finding of a board conclusive. Accordingly, this construction of Section 5 is required both by the rule construction of the criminal statutes and is also required by three constitutional considerations that I'd like briefly to mention. The first of these is that the Government's construction making the finding of a board conclusive denies appellee procedural due process. It precludes him from challenging the board's 1953 determination that the Communist Party was a Communist-action organization although it wasn't a party to the proceeding in which that determination was made. Furthermore and perhaps more important, it precludes him from challenging the current validity of the board's determination which is now 14 years old and which was based on evidence much staler than that. Appellee is not a Court of due process by Section 13 of the Act which permits a registered organization, and I emphasize both words, a registered organization, to make periodic application to the board for a re-determination of its status in the light of the current evidence. This procedure, the procedure under Section 13 isn't available to appellee as an individual since it's available only to organizations and it isn't available to the Communist Party which has not registered and whose refusal to register has now been sustained by the Court of Appeals in Communist Party versus United States, a decision which the Government has accepted holding that the registration order against the party is hopelessly at odds with the privilege against self-incrimination. Obviously, appellee can't be denied his constitutional rights to challenge the validity of the board's determination because the officers and members of the Communist Party have elected to assert their constitutional rights not to register. The board's -- the Government's interpretation also makes Section 5 a bill of attainder. Since it forecloses appellee from litigating the current character or the current validity of the board's 1953 determination against the party, he has no escape from the effect of that determination upon himself even though the determination has completely lost its validity. The situation under the Government's interpretation would be the same as though the Communist Party had been identified by name in the statute as it was in the section of the Landrum-Griffin Act which this Court struck down in United States versus Brown on the grounds of the bill of attainder. The third constitutional difficulty with the Government's interpretation is that it deprives appellee of the rights to indictment by grand jury, trial by jury, and proof of guilt beyond a reasonable doubt. This is so because Section 5 may not constitutionally be enforced unless at the very least the Communist Party has the characteristics which the Act describes to a Communist-action organization. Yet under the Government's theory, this issue of fact is withdrawn from the grand jury the return of the indictment, from the petit jury that were prior the indictment, and to top it off, it has not been established by proof beyond a reasonable doubt but under the Act and the proceeding before the board only by a preponderance of the evidence. Surely, this Court which has recently implemented the constitutional rights of the accused in so many other situations will not permit three of his most basic rights to be circumvented by any such device. The last point I will argue is that Section 5 is unconstitutional as applied because the registration order against the Communist Party has been invalidated by facts of which this Court can take judicial notice showing that the world Communist movement described in Section 2 of the Act does not exist. The Communist Party cannot be a Communist-action organization unless there is a world Communist movement that meets the Section 2 description. This is so because Section 3(3) of the Act defines a Communist-action organization as an agent of the world movement described in Section 2 and obviously, there can be no such agent if there is no principle. Section 2 describes a supposed principle as a worldwide revolutionary movement not led by, as Mr. Maroney suggested in his argument, but under the complete direction, domination, control and discipline of the Communist dictatorship of an unnamed foreign power. The board identified this power in 1953 in its decision as a Soviet Union. In its 1961 decision affirming the board's order, this Court held that the findings of Section 2 concerning the nature and the control of the world Communist movement are not subject to proof or disproof in the proceeding before the board. It regarded the board's identification of the Soviet Union as the unnamed foreign power referred to in the Act as a matter of statutory construction which it affirmed. The Court majority opinion recognized, however, that future events might invalidate this construction and that the time might come when in the words of the opinion, and I quote them, ?the board or a reviewing court will be able to say that the world Communist movement as Congress meant the term in 1950 no longer exists. The possibility foreseen by the Court is now materialized. Whatever may have been the case in 1950, it's common knowledge today that the model of a monolithic world Communist movement under Soviet control bears no resemblance to contemporary reality. The Court of Appeals in Communist Party versus United States noted this fact. It pointed out that the Soviet Union can only regard the Section 2 description of itself as a bit of irony and that the assumptions that flow from such a description have long since been discarded as a basis for American foreign policy. Yet, despite these views stated by the Court of Appeals which I think are self-evident, for the reasons I've already indicated, neither appellee nor the Communist Party can secure consideration by the board of the proposition that its registration order rests on a manifestly fictitious premise, nor could the appellee litigate this issue in its criminal trial since the Court, this Court, in its '61 decision held the question to be a matter for statutory construction. I submit, therefore, that it's incumbent on the Court to take judicial notice of what everybody knows the fact to be and to declare in the words of your 1961 decision that, and again I quote, the world Communist movement as Congress meant the term in 1950 no longer exists. Such a declaration would not only invalidate Section 5 but would have the host of effect of sweeping away the other tattered remains of legislation that embodies the savage and irrational anti-Communism of a period that has been so destructive both of constitutional liberty and of our national dignity. Thank you.
Earl Warren: Mr. Maroney.
Kevin T. Maroney: Mr. Chief Justice, may it please the Court. I just want to take a minute in connection with Justice Brennan's questions concerning the scope of possible review at the criminal trial. In our -- in a footnote on page 2 of our brief on reargument, we point out or make the contention that to the extent that the appellee is entitled to show that the findings of the Secretary are so bereft of factual support that they provide no rational basis for the enforcement of the Act citing Carolene Products case. The question presented would be one for the judge to decide on motion rather than an issue for the jury citing Fox v. United States. And we submit that that would be the standard of review which would be available to the defendant as a legal contention.
Speaker: (Inaudible)
Kevin T. Maroney: Well, I think there is. The legislative history would indicate, at least as far as the committee --
Speaker: (Inaudible)
Kevin T. Maroney: I think it's always reviewable for an arbitrary and capricious determination, Your Honor. I hope I'm not giving away --
Speaker: (Inaudible)
Kevin T. Maroney: I don't think -- I don't think that that -- I figured -- I simply read to provide for a determination as to whether or not it was arbitrary or capricious. I don't think that --
Speaker: (Inaudible)
Kevin T. Maroney: I doubt it. I would not think that Congress for example could confer authority on an officer of the executive branch which would include the making of an arbitrary and capricious determination.
Speaker: (Inaudible)
Kevin T. Maroney: Right. And just the one other point then in connection with the point raised by Justice Fortas concerning the possibility as I understand it of including in a provision, a contractual provision which the Government might have with a facility of this type as for a screening of other employees who would not be given access or were not applying for access to classified information. I might just point out in connection with that that of course all of the facilities which are designated by the Secretary and which the statute contemplates should be designated by the Secretary of Defense are not facilities which have contracts with the Government. For example, power stations may be supplying power to an aircraft corporation which is performing a Government contract. Because of the --