Earl Warren: Number 44, Clemente Martinez Perez, Petitioner, versus Herbert Brownell, Jr., Attorney General of the United States. Mr. Horsky.
Charles A. Horsky: May it please the Court. This proceeding is here on reargument pursuant to the order of the Court entered at the close of the last term. Since that order did not direct counsel to any particular matters, I am assuming that a full discussion of the issues is again appropriate. Perhaps I should say by way of brief preliminary that following the order of the Court last June, I reexamined the briefs -- the brief and the reply brief filed for the petitioner in the last -- at the last session, and I concluded that no further brief was necessary. The Government, however, has filed a supplemental memorandum which is applicable not only to this case but also to the -- to succeeding cases. As a preliminary, I think it might be helpful if I restate -- recall to your minds the facts in this case. I would not presume to do it but they're very short, and I think it would be well under the circumstances. The proceeding is an action for a declaratory judgment that the petitioner is a citizen of the United States. The District Court denied petitioner that relief and adjudged that he was not a citizen of the United States. That decision was affirmed by the court below which is the Circuit Court of Appeals for the Ninth Circuit. In each of the two courts, two provisions of the Nationality Act of 1940, as amended, were held to have taken away the American citizenship which the petitioner admittedly once had. The first provision is subsection (e) of Section 401, which decrees that any American citizen, whether native-born or naturalized who votes in a foreign political election or plebiscite, shall lose his American citizenship. The second provision which is subsection (j) of the same Section 401 decrees a like faith for any citizen, native-born or naturalized who remains outside of or flees the United States to avoid military service. Your Honors will recall that in this case, the petitioner was found to have done both of those things. Those findings were not challenged in the court below and they are not challenged here. The issue here is solely the question whether those subsections are within the constitutional power of Congress. Now, the facts can also be stated briefly which bring that issue, perhaps, into a little more clear focus. The petitioner was born in El Paso, Texas in 1909. At the age of about 10, he was taken by his parents to Mexico. He stayed there until he attained his majority. He married a Mexican and he has raised a family. There is no finding, however, that he is or ever was a citizen of Mexico. He returned to the United States for the first time in July 1943 and again, in July 19 -- in early 1944. Both time working for a few months as a railway laborer. Each time, he claimed falsely to have been a native-born Mexican. In July 1947, however, he attempted to enter the United States as an American citizen. The immigration authorities citing against him the same two sections that are involved in this proceeding held that he had forfeited his American citizenship and refused him entry. In 1952, he again returned to the United States, again, by claiming falsely to be a native-born Mexican. Shortly after he arrived this last time, he surrendered to the immigration authorities who, following their earlier decision, held that he had forfeited his citizenship and again ordered him deported. That deportation order has been stayed by the Court in the present case which was brought shortly after the deportation order was entered. The question at issue then is simply this, does Congress have the power under the Constitution to declare that native-born citizenship shall be -- shall be forfeited if a citizen votes in a foreign political election or remains outside of United States to avoid military service. Those two sections are the ones involved in this case. Before I proceed to discuss that issue, I'd like, however, to have a -- make a few comments on the nature of the statute with which we are concerned. It has several features that are important. First, it doesn't make as -- the doing of the acts which petitioner has found to -- was found to have done, presumptive merely of an intention to abandon citizenship or to forfeit citizenship. These acts are, in all cases, irrespective of circumstances and motives when not done under duress conclusive acts of forfeiture. Second, and by the same token, the citizen need not know and the petitioner here did not know that the acts -- the doing of these acts will entail this enormous forfeit. There is no finding here that petitioner was aware of the consequences of what he did and the statute does not require any such finding. Finally, the statute does not purport to impose this forfeiture as a criminal penalty. The loss of citizenship is a matter for administrative determination. Sometimes, as in the present case, it is possible to obtain judicial review of the action in a civil action such as this one. But in many cases where the acts alleged to forfeit the citizenship are performed outside the United States, there is grave doubt at least as to whether there is any judicial review of the administrative determination that citizenship has been forfeited. What is certain, however, is that there is no intention. There is no policy in this statute to treat this as a criminal punishment imposed only after the protections afforded by the Constitution for -- for a criminal action. The petitioner has no trial by jury. He cannot even urge that the punishment would be cruel and unusual punishment under the Eighth Amendment. The administrative procedure which is involved here, neatly sidesteps all of these constitutional guarantees. We believe that these subsections, and each of them I can treat together for a moment and then I will come to them separately, exceed the power vested in Congress by the Constitution.
Felix Frankfurter: May I ask you? Did you say he was treated together as in separately? You stated conjunctively in your statement of the facts. I would like to ask you whether either one may regard this case as a finding both under (e) and (j) and whether if they're to be taken collectively and not disjunctive, does that makes any difference in your argument?
Charles A. Horsky: Well, I assume, Your Honor, that if either of them is constitutional, the decision --
Felix Frankfurter: But suppose --
Charles A. Horsky: -- below should be affirmed.
Felix Frankfurter: -- my question has an implication that one alone may not be, but two together may. That's the point on my side.
Charles A. Horsky: Well, I'm not sure then that I understand it, Your Honor. If you mean that if Congress had passed only one of them, it would have been unconstitutional but since it passed two, it was acting constitutionally. I don't --
Felix Frankfurter: I wouldn't put it that way.
Charles A. Horsky: Well --
Felix Frankfurter: The way I --
Charles A. Horsky: I don't understand it that way.[Laughs]
Felix Frankfurter: Well, I can -- I -- I appreciate that argument. But suppose I asked two questions. One, can the statute, in your case, be construed that if he disqualifies himself, if I may use a neutral term, both under (e) and (g) not one alone but the two together, will that make a difference? And two, may the statute be read at least as applied to this case that you have both disqualification present.
Charles A. Horsky: Well, I --
Felix Frankfurter: (e) and (j). I'm talking about (e) and (j).
Charles A. Horsky: (e) and (j), yes.
Felix Frankfurter: (Voice Overlap) --
Charles A. Horsky: (e) and (j) are the two that are here involved. Well, I think I can answer the second part of your question more easily than the first. I think that under the second part, if, as I've said before, if either of the subsections, he is held valid and constitutional there is an adequate basis --
Felix Frankfurter: That's --
Charles A. Horsky: -- for the decision below. That's easy. The first part of the question, I am not sure that I still fully understand and I hesitate therefore to attempt to answer it.
Felix Frankfurter: Suppose Congress said a man shall lose his citizenship if he has done what he says disqualified if he -- what they said.
Charles A. Horsky: I think --
Felix Frankfurter: I'm sorry that I have put to you --
Charles A. Horsky: Well, I -- I think understanding it now, as I do, I believe I would say that the statute would still clearly be unconstitutional on my argument, and I will --
Felix Frankfurter: (Inaudible) cannot be construed for your -- for the purposes of your case so as to require both --
Charles A. Horsky: I think not, Your Honor.
Felix Frankfurter: All right.
Charles A. Horsky: I think not.
Felix Frankfurter: Well, if can't be, then -- then my question -- that's the shortest answer.
Charles A. Horsky: [Laughs]
Felix Frankfurter: All right.
Charles A. Horsky: Let me, however, in order to get into the discussion of this question, tell -- cite in a few words as I can what I think the powers of Congress are in this area of citizenship and then attempt to define more precisely why I think the powers here attempted are not within congressional authority. In the first place, it seems to me clear that Congress has the power, and indeed, it has purported to exercise the power to declare a right of voluntary expatriation. It seems to me that in -- under our Constitution which permits -- authorizes the naturalization of foreigners who wish to become citizens of this country. It is almost incumbent upon us to recognize a correlative right of American citizens to renounce voluntarily this citizenship if they wish to become citizens of a foreign country. Congress may also provide, I am clear, as it did in 1907, a half century ago that a citizen may not undertake to divide his allegiance between this country and some foreign State. I'd like to state that principle in terms -- in the terms with which it was stated by the Citizenship Board of 1906. And I've -- it's a brief sentence but it seems to me to summarize the point. The board said, "No man should be permitted deliberately to place himself in a position where his services may be claimed by more than one government and his allegiance be due more than one government." This principle is reflected in Section 401, in subsections (a) and (b) which provide that naturalization in a foreign state or the taking of an oath of allegiance to a foreign state are acts of expatriation.
Speaker: That may be involuntary expatriation by that act.
Charles A. Horsky: Those -- well, let me -- let me clarify it. If a person who, let us say, becomes naturalized in Italy, an American citizen takes out an Italian citizenship says, "I didn't intend by that Act to devour then give up half of my allegiance to United States and give half to Italy. I think it's quite proper to reply that allegiance can't be divided that way.If you dilute it, you destroy it. If that be involuntary in that sense, yes. I think also if a person were to say by taking out Italian citizenship and taking an oath of allegiance to Italy, I didn't intend to give up any of my allegiance to America. I didn't intend to give any allegiance to Italy. I think you can say as you did in the Savorgnan in effect. You can't sign one thing and claim another even assuming that you didn't believe that --
Speaker: In other words, you --
Charles A. Horsky: -- that happens.
Speaker: -- you recognized basically then that there is some power in Congress to provide for involuntary expatriation.
Charles A. Horsky: No, sir. I say that the power in Congress is a power to define how you voluntarily waive your citizenship. I don't recognize a right in a one person to sign a paper which says, I am now giving my allegiance to Italy and then come in six months later and say, “I didn't mean it.” If that is involuntary, perhaps I mean that but I don't regard that as involuntary expatriation. That is doing something which divides the man's allegiance which gives him a new nationality and he is simply claiming that he didn't do what he did and I think that is not involuntary expatriation. I don't regard those sections as anything more than a definition by Congress of how you voluntarily can expatriate yourself.
Felix Frankfurter: But you wouldn't want us to determine constitutionality on bearing views about what is voluntary and what is not voluntary in one's action.
Charles A. Horsky: Well, if -- if it's necessary to do that, I -- I would like to have you do it.I don't think it's necessary to it.
Felix Frankfurter: All right.
Charles A. Horsky: I don't believe those sections properly construed can ever result in involuntary expatriation any more so than subsections -- let's take subsection (i) which is renouncing American citizenship by an oath before some appropriate official. A man can come and say, “I didn't intend to do anything by it.” But that certainly isn't involuntary expatriation when you say, “Well, I believe your oath but I don't believe you now,” --
Potter Stewart: Suppose --
Charles A. Horsky: -- or I'm not going to listen what you have in your mind at the time.
Felix Frankfurter: Suppose Italy or some other country, Italy particularly attracted to Americans, there's a -- you can become an Italian citizen and by becoming so, as an American, you merely may enjoy the advantages of Italian citizenship and none of its obligations. Was that a dilution or not?
Charles A. Horsky: Well, I don't --
Felix Frankfurter: And the person then signed --
Charles A. Horsky: -- I don't then know what --
Felix Frankfurter: -- the document the way the lady did in (Voice Overlap) --
Charles A. Horsky: What documents did she sign?
Felix Frankfurter: Pardon me?
Charles A. Horsky: What documents does she sign?
Felix Frankfurter: That she --
Charles A. Horsky: An oath of allegiance?
Felix Frankfurter: Well, in the sense as I define it in Italian hypothetical legislation, namely, he can get all the benefit. He can get a passport from the Italian foreign office if it's sometimes too difficult to get it from the cooperative state etcetera, etcetera.
Charles A. Horsky: Well, I --
Felix Frankfurter: You can get the benefit of taxation that those -- like a taxation for Italian citizens or heavier rather against foreign citizen. I know, maybe that's a crazy hypothesis and I'm not putting a test to the constitutionality on crazy hypotheses but I'm suggesting that the word “voluntary” and “involuntary” is not a very helpful distinction made as you've made it, namely, she wouldn't be allowed to contradict that it's voluntary.
Charles A. Horsky: Well, I -- I think it -- it ought to be clear that when I say voluntary or when I'm talking about taking an oath of allegiance, that I am talking about taking an oath of allegiance irrespective of mental reservation, and I don't believe that mental reservations ought to have any place in this. And I don't think that if that means that we've got to be semantic about what is voluntary, I -- I don't think it ought to turn on those terms. But I think this is quite a different kind of a matter. And if I may have -- I don't mean to -- let me go on to what I think the situation is here. In this case, the important element in both of these subsections, and I could still generalize them together, is that the action taken by petitioner had nothing to do with foreign nationality. Voting is defined in subsection (e) as just plain voting, pure and simple. It does not require that he'd take an oath of allegiance or have any nationality in a foreign state. Leaving the country or in this case, staying out of the country to avoid military service, gave him no other citizenship. It operates in both of these subsections to leave the man a stateless person if it -- if he happens to be a dual national or not. If he is not a dual national, that's just too bad. He therefore has no -- no nationality at all. Now, the -- the basis for my argument and perhaps that will help to clarify this matter of voluntariness, lies in two areas. The first is our constitutional history and the second is the decisions of this Court. The constitutional history, I can skip over very quickly. The fact is that this power, as I see it, was not asserted for 150 years after the Constitution began. There was plenty of controversy about citizenship. There was the war of 1812 about the right of people to become American citizens and cast off their foreign allegiance. It was the problems of the right of expatriation which was finally solved by Congress in 1868 by a declaration of that right. They were the problems of the Fourteenth Amendment but it was not until 1940 when voting in a foreign political election was first made an act of expatriation that the kind of a power which is not asserted for Congress was first asserted. Now, in the decisions of the -- of this Court, I think that I find support for the proposition that it requires that the power of Congress is limited to defining what will be voluntary expatriation, that there is no power of involuntary expatriation taken without the concurrence of the citizen. The first case is Wong Kim Ark against the United States. There, it was claimed, as you will recall, that Wong was born in San Francisco of Chinese parents ineligible to citizenship was not a citizen and that therefore, he should be denied admission to the United States when he went on a visit to China -- readmission to United States. This Court ordered Wong re-admittance. It rejected the view that what Congress could do by way of naturalization or failure to make naturalization available to Wong's parents could affect Wong's citizenship. And if I may use Justice Gray's specific words, he said, "No act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright by virtue of the Constitution itself without any act of legislation." I read Wong Kim Ark as teaching that when we are dealing with native-born citizenship, we're dealing with a constitutional right not subject to the power of Congress to take away or to control. Now, the Government would find that teaching put to one side or overruled by the decision in Mackenzie against Hare, and I'd like to take some time on that case. Mrs. --
Felix Frankfurter: Before you move on to that.
Charles A. Horsky: Yes.
Felix Frankfurter: Does that mean that if a man commits what is called treason that automatically, he loses his citizenship although a statute may not have -- you said that that was a consequence?
Charles A. Horsky: Well, I think it is possible, Mr. Justice, that citizenship may be taken away as a punishment for a crime after a criminal conviction.
Felix Frankfurter: Well, I'm -- I'm assuming there's no outlawry of the treason -- treason. And there's no punishment indicated. Does that mean that the sentence you read is one thing?
Charles A. Horsky: No act or omission of Congress can affect citizenship acquired as a birthright by virtue of the Constitution itself. All that says is that Congress can't take this citizenship and do with it as it sees fit. This is a constitutional right like the right to trial by jury.
Felix Frankfurter: Then what about treason?
Charles A. Horsky: I don't think treason would have anything to do with it. It still -- a man would still be a citizen even if he commits treason. Congress might --
Felix Frankfurter: Congress -- Congress cannot say a man who committed what could be criminally pursued as treason not make that an offense but simply say we don't want it. We take the citizenship away?
Charles A. Horsky: Congress might provide, I am willing to say although I -- it raises some other questions which are apparent. Congress might have the power to say that as a punishment for treason upon conviction thereof under the due processes of criminal law --
Felix Frankfurter: I'm assuming no conviction.
Charles A. Horsky: Then it cannot do it. No, sir. I don't think Congress has the right administratively by legislative if I have to say, ‘You are no longer worthy of citizenship.”
Felix Frankfurter: But my question doesn't necessarily mean by legislative fiat.
Charles A. Horsky: Well --
Felix Frankfurter: Suppose you can always go into court and say I didn't commit treason and the occasion is either -- said I did acted arbitrarily etcetera.
Charles A. Horsky: You can go into court in --
Felix Frankfurter: I'm not talking about a bill of attainder.
Charles A. Horsky: I know, Your Honor.
Felix Frankfurter: I'm talking about something else.
Charles A. Horsky: I appreciate that. But you'd go into a civil court and you have a finding of fact as you do here that whether or not you committed treason, and I don't think that is sufficient.
Felix Frankfurter: Do you -- do you say that that couldn't be done.
Charles A. Horsky: I say that cannot be done, yes. Yes.
Felix Frankfurter: That's the question I put to you.
Charles A. Horsky: Yes. Now, let me -- let me deal with Mackenzie against Hare. Mrs. Mackenzie, you may remember the facts, I'm about to make a statement and let me state it very briefly, Mrs. Mackenzie married her husband, a British citizen and subject in California in 1909. She had always lived there. She was married there. She continued to live there. But in 1913 she tried to vote and the registrar said that she was no longer a citizen because she had married a British subject and become a British citizen. Mrs. Mackenzie claimed that that statute, and that was the Act of 1907, that was one of the subsections, was unconstitutional. This Court said it was not. This Court cited what it called the ancient principle of jurisprudence that a husband and wife in public affairs were merged and the husband was the dominant feature. And the respondent in that case had pointed out as -- so far as I know was true, that in every country at that time, marriage of a woman to a foreigner gave her the nationality of her husband. Viewing the matter in that light, the Court said that there needn't be any dissent from the doctrine stated in the Wong Kim Ark case, which Mrs. -- Mrs. Mackenzie had cited and relied upon. And then the Court said, "It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen. The law in controversy does not have that feature. It deals with a condition voluntarily entered into with notice of the consequences." In other words, as the Court saw it in the light of the then current concepts of husband and wife, Mrs. Mackenzie's act of marriage to her husband by which she became a British citizen was tantamount to naturalization in the British Empire. Whether the issue will be decided the same way today, it is doubtful. It will -- it will not come up because Congress itself, two years after the Nineteenth Amendment repealed that Section of the 1907 Act and it has not been reinstated in the 1940 Act.
Speaker: You regard Mackenzie and Hare as a case of voluntary expatriation.
Charles A. Horsky: I regard the case of Mackenzie and Hare as a case of voluntary expatriation, that's right. Just about like --
Speaker: And Savorgnan the same way?
Charles A. Horsky: Just about like Savorgnan. In Savorgnan, Mrs. Savorgnan took an oath of allegiance to Italy and signed all the papers making her a citizen of Italy. The case wouldn't have -- wouldn't be any problem at all except that she managed to persuade the District Court to find that she didn't intend by that to do anything to her American citizenship. Now, assuming that that was believable, I think this Court properly held it irrelevant in view of what she had done. As I say, I don't think you can divide or dilute your allegiance by doing the obvious thing which would give you another citizenship and would abandon your American citizenship and then say, “I didn't mean it,” when it's -- when some of the unfortunate or unhappy consequences begin to dawn on you, and that's what Mrs. Savorgnan did. Now, I might also point out as one last item of reference that as late as last May, this Court, in Rabang against Boyd, did refer in somewhat a language reminiscent of Wong Kim Ark to the constitutionally secured birthright of citizenship acquired by the American-born in distinguishing it from the nationality which it held there not subject to -- to constitutional protection. Now, let me turn, if I may, from these general considerations to consideration of these two specific sections taken separately. I think if we do, I can make more clear the suite of the power which is here asserted for Congress.
Speaker: Could I ask you one preliminary question?
Charles A. Horsky: Yes, sir.
Speaker: I don't want to interrupt you. Do you draw any distinction between the expatriation power in respect to naturalized citizens and native-born citizens?
Charles A. Horsky: Well, certainly with respect to naturalized citizens who are naturalized after a law is in effect which puts conditions on it, I suppose that Congress can condition naturalization --
Speaker: Yes.
Charles A. Horsky: -- as it sees fit. I would not draw any distinction between a natural born citizen and a -- and a naturalized citizen who obtained his citizenship before those conditions were imposed. Is that --
Speaker: I understand that.
Charles A. Horsky: -- sufficient? First, let me talk to subsection (e). This is voting in a foreign political election or plebiscite. That's all. Under this subsection, as I've said, it doesn't make any difference whether the citizen knew that there was any such terrible penalty imposed and there is no finding here to this petition here. It doesn't matter what the election was about. This subsection has been applied, as I point out in my brief, to -- take away the American citizenship of a person who votes in Canada on a local election as -- as to whether state liquor store should sell beer and wine. It has been applied to take away the citizenship of a great many people who voted with the urging and the -- the pressure from America against the communists in Italian elections and elections other -- and other places on the continent. It is applied automatically. It doesn't allow any leeway. It's been applied automatically here. There is no finding as to why or how or under what circumstances the petitioner voted. That's irrelevant. And as I pointed out earlier, this Section does not have anything to do with acquiring a citizenship in or evidencing any allegiance to a foreign government. This is just plain voting and a statelessness result, that's too bad. Now, in the brief for the United States, the Government attempts to sustain this subsection by this statement. It says it's warranted "to avoid international conflicts and to preserve the integrity of American political processes and the singleness of American allegiance, I submit that that is just no more than words. If a foreign state permits aliens to vote, I can see no basis upon which you'll have international conflict any more than there had been international conflicts when States in United States, as they did and some still do, permit aliens to vote here. When we go to preserve the integrity of American political processes in this context, I simply don't understand what it -- what it's talking about. But I do know that there is no necessary impairment of the singleness of American allegiance in voting in a foreign election and certainly not in every circumstance at -- at all times.
Felix Frankfurter: Mr. Horsky, did you say that it had been held that if a fellow happened to be a resident to -- at (Inaudible) during the summer and they have an election whether this is -- this town should be -- if it is a town, should be dry or wet. That town is -- has been held to cover the need?
Charles A. Horsky: Well, I -- that particular case, I can't --
Felix Frankfurter: Well, I don't --
Charles A. Horsky: -- speak to it --
Felix Frankfurter: (Voice Overlap) --
Charles A. Horsky: -- specifically but I think the answer would be clearly yes. I don't have any doubt but that is a political -- foreign political election. The one that I mentioned is a case in which the -- the local question on the local ballot was “Shall the state liquor store sell beer and wine?” The lady voted -- I don't know which way [Laughs]. And she lost her citizenship.
Felix Frankfurter: This -- are these administrative determinations?
Charles A. Horsky: This is a decision by the Attorney General in this particular case with a dissent in the natural -- in the Board of Naturalization but the Attorney General holding, quite recently, that this foster citizenship.
Felix Frankfurter: Mr. Horsky, can you shed any light up to the second part of (e) or of plebiscite to determine the sovereignty over foreign territory?
Charles A. Horsky: Yes, I -- I think I --
Felix Frankfurter: Sort of that.
Charles A. Horsky: -- I think I can, and I'd like to come to that. I think the reason advanced by the Government which I have just quoted to preserve the integrity of processes and the like is an afterthought and a -- make way in an attempt to avoid what the Section really is which is an attempt by Congress to punish conduct it doesn't like. The origin of subsection (e) is this. In 1935, there was a great deal of unhappiness, let me say, in Congress about the activities of certain Americans who were interested in the Nazi Government in Germany and the fascist government in Italy and there was a particular unhappiness about the fact that some Americans have voted and desire plebiscite. The result was that the Committee on Immigration and Naturalization of the House in 1935 reported out favorably a bill in practically the identical language of subsection (e) making it a forfeiture of citizenship to vote in a foreign political election or plebiscite because the plebiscite bizarre was very much in the forefront of their mind. The Committee explained that its -- the purpose of the bill was to provide a penalty, and the word “penalty” is used by the Committee, for anyone who thereafter voted in a foreign election.
William J. Brennan, Jr.: Let's now regard, Mr. Horsky, of whether it happened to be an election that determines sovereignty over foreign territory. In other words, was plebiscite modified only by --
Charles A. Horsky: Foreign (Voice Overlap) --
William J. Brennan, Jr.: -- to determine the sovereignty, etcetera --
Charles A. Horsky: It was in the --
William J. Brennan, Jr.: -- modified only plebiscite?
Charles A. Horsky: -- it was in the same word as it is now. That bill did not become law, Your Honor. It -- it was put in in 1940 when the -- the Committee revised the whole Nationality Act and they picked up some of the proposals that had been pending in Congress up to that time and put in in this long draft of Section 401. But 1935 Bill was in practically the same words as the present subsection (e) and --
William J. Brennan, Jr.: Well, what I'm trying to get clear is --
Charles A. Horsky: Plebiscite.
William J. Brennan, Jr.: Do I understand that the congressional history supports no interpretation of (e) that the words “to determine the sovereignty over foreign territory” modify election as well as plebiscite?
Charles A. Horsky: I couldn't speak to that but I would be very surprised if it did. I -- I don't think so but I -- I really don't -- I have never looked at it with that particular question in mind.
William J. Brennan, Jr.: Well, you've been suggesting that this is aimed at voting in any foreign election, whatever and you gave us an illustration that currently the Attorney General considers the same as any foreign election.
Charles A. Horsky: I think that -- well, the Attorney General clearly considers it as aimed in -- at any political election which he construes as any election -- I -- I don't know how I would generalize it but any political election is probably as good a word as any. Beer and wine is a political election as staged by the State, voting for a school board.
William J. Brennan, Jr.: Well, in any event, beer and wine is certainly not to determine --
Charles A. Horsky: But --
William J. Brennan, Jr.: -- the sovereignty of a foreign territory.
Charles A. Horsky: -- whether or not it could be argued, sir, that the State -- that Section should be confined to elections to determine sovereignty over territory, I don't know but I think probably not. I -- I -- but I must confess I did not look at it with that in mind.
Felix Frankfurter: Mr. Horsky, when you said Congress was unhappy about American voting for the determination of (Inaudible) in which you told Germany or France, what was the -- why were they -- why should they -- why were they unhappy?
Charles A. Horsky: I don't know, Your Honor. I -- they --
Felix Frankfurter: Just --
Charles A. Horsky: -- they were.
Felix Frankfurter: What?
Charles A. Horsky: They were. They didn't --
Felix Frankfurter: Think of a good reason why they might be, couldn't you?
Charles A. Horsky: Well, I can think of a lot of good reasons why they might be but I don't know what the reason was. I'm --
Felix Frankfurter: But some -- some of them are obvious. One of them, it seems obvious.
Charles A. Horsky: That's right. But they didn't want Americans to go over there and vote.
Felix Frankfurter: That certainly pertains to good foreign relations, isn't it?
Charles A. Horsky: Sure, certainly. I'm -- I'm not prepared to say, Your Honor, that Congress couldn't make its displeasure effective. I'm not so sure that Congress couldn't make it a crime for an American to vote in a foreign political election or plebiscite. But if it were to do so, could it conceivably be said that it would be appropriate punishment for that kind of an act to deprive a man of his citizenship which would make him subject to banishment from his country? I just can't believe that that kind of punishment is appropriate for that kind of an act even if, as it's not the case now, these were made a punishment for a criminal act and not simply --
Felix Frankfurter: The implication --
Charles A. Horsky: -- an administrative forfeiture.
Felix Frankfurter: -- the implication of your answer, as I get it, at least it strikes my mind, is that the difficulty of with what you put is as conceivably as not that -- do not -- within the range of power or the exercise of it would offend the Due Process Clause.
Charles A. Horsky: Yes, sir. That may be correct, although it depends a little bit on how you look at it. The power of involuntary expatriation is the power which I would challenge. The power to be concerned about Americans doing something outside of this country, I certainly don't challenge and couldn't.
Felix Frankfurter: Well, what -- what real difference is there between an American woman who (Inaudible) American business, what real difference is there between -- on the score of voluntariness and involuntariness between a woman becoming the wife of an Italian or an English or French gentleman or a (Inaudible) gentleman, and the law say -- the Congress say the consequence is that you'll lose your American citizenship although she would like to retain and she doesn't want to give it up so far as the ruling goes, and a man saying, “I'm sufficiently concerned with the (Inaudible) with France if you'd go to Germany but I'm going to vote in this election and I don't care what Congress has to do in contrary.” What difference in -- on the score of voluntariness? Both of them -- the real question is whether Congress may attach certain consequences to acts which are consciously undertaken.
Charles A. Horsky: Well, you're -- you're assuming one fact which isn't in our case although I will pass that. This man -- there is no finding that this man understood.
Felix Frankfurter: (Inaudible)
Charles A. Horsky: But there is a, it seems to me, a great deal of difference. If a person -- if the lady marries her husband in 1907, we must put ourselves in that --
Felix Frankfurter: (Inaudible)
Charles A. Horsky: -- year, and becomes automatically thereby as she would anywhere in the world, a subject and citizen and national of her husband's country, it seems to me a wholly different matter than to say “I go over to the (Inaudible) and vote knowing that the Congress has said, "If you do, you're going to forfeit your citizenship.”
Felix Frankfurter: I should think the lady would know less what her international state is as indeed when the case -- the Italian case we've had. All she wanted is to marry that charming gentleman.
Charles A. Horsky: Well, she -- she knew that she took an oath of allegiance and she knew that she became a national.
Felix Frankfurter: Well, the finding was the other way.
Charles A. Horsky: No. The finding was not -- well, this Court, at least, refused to accept that much of a finding.
Felix Frankfurter: All right. Because it said it's immaterial.
Charles A. Horsky: It's impossible. [Laughs]
Felix Frankfurter: You think that even intelligent, contemplated woman really knows the status under international law when books are written about it showing the difficulties of ascertaining?
Charles A. Horsky: Well, I'm not saying that but I think that she knows when she takes an oath of allegiance that she is diluting her American allegiance.
Felix Frankfurter: She may want to have both.
Charles A. Horsky: I'd say --
Felix Frankfurter: Dual citizenship is nothing strange or unbelievable in this world.
Charles A. Horsky: That's right.
Felix Frankfurter: It happens every day.
Charles A. Horsky: That's right. Well, let me say, Your Honor. I do not mean to say that I would -- I am not urging and -- and one of the points in the brief which I have filed does urge that the Due Process Clause is also a barrier in this case. I cannot conceive as I have just said of the appropriateness of the punishment of forfeiture of citizenship for this act of voting in a foreign election but I -- I would like also to -- to say that I think that a more basic objection is present and that is that Congress here is assuming to say we can take it away if we want to when it's given by the Constitution. Now, let me turn to subsection (j) which may illustrate this point a little bit better because subsection (j) is clearly a matter in which Congress has already legislated. Subsection (j) makes it an expatriating act to leave the country or to remain out of the country to avoid military service in war time. This is already a matter which Congress has punished or has provided for in the criminal statutes. It is provided rather severe penalties. This penalty still remains but if the particular person evades military service in a particular way by going out of the country, he encourages this additional forfeiture of his citizenship. Again, he doesn't acquire, as you understand, any new nationality or any new allegiance. He simply loses his American citizenship. Now, I think that this also presumes -- this also assumes for Congress a power of involuntary expatriation, a power to deal as it wishes with American citizenship. This one, however, I think, is subject to an additional difficulty and that is that it purports to impose a criminal penalty without any of the protection which the Constitution affords in criminal cases. On the face of it, it is obviously a criminal penalty -- it looks like a criminal penalty or obviously illegal acts. When you look into its history, that conclusion becomes irresistible. It happens that we, in the Government, are not in dispute on the origins of subsection (j). Both of us find it in a law which was enacted in 1865, which punished deserters and draft dodgers whether or not they left United States by loss of the rights of citizenship. The willingness of the Government to conceive this paternity to the 1865 statute apparently stems from its desire to be able to say that it has a hundred years of history behind it. What the Government is unwilling to recognize, however, is that if the statute is going to have -- to be the parent for one purpose, it must be the parent for all purpose. And it must recognize that the 1865 statute was construed by this Court to require a -- a criminal conviction before the loss of the rights of citizenship could ensue. It was a criminal statute. Now, there isn't any doubt about that fact although the Government rather studiously avoids mentioning it. The case -- the first case came up under it in 1866, the year after it was enacted when a man wanted to vote in Pennsylvania although he had violated the statute. Judge Strong in the Supreme Court of Pennsylvania, Judge Strong, who was later to become a Justice of this Court in about four years, held that the statute had to be construed in order to save it under the Constitution as requiring a criminal conviction, a conviction in that case by court-martial before the penalties can attack. Then some years later, the question came up to this Court in Kurtz against Moffitt in 115 United State. And this Court, quoting and citing Judge Strong's decision said of the 1865 Act, which, by that time, had gotten into the revised statutes, that it "can only take effect upon conviction by court-martial” as was clearly shown by Mr. Justice Strong in Huber against Riley and has been uniformly held by the civil courts as well as by the military authorities. Now, the 1865 Act clearly was absorbed into the 1940 Act but in two bites. The first part which related to desertion in time of war became subsection (g), and subsection (g), as you will note from looking at it, makes explicit what this Court had held was implicit in the 1865 statute. That criminal conviction must precede any application of the statute. That is now specifically made the law of subsection (g). The other part of the Act, which related not to desertion but to draft dodging, avoiding the draft, came in by later amendment in 1944. But that subsection, for reasons which are not clear, omitted the requirement of a prior criminal conviction before this could apply. The legislative history of that 1944 amendment makes it abundantly clear that Congress thought it was imposing an additional penalty on draft dodgers, on the kind of a draft dodger that might not be caught by the law and put in prison because he was outside the country. The Government would dispose of the comments in the legislative debates on that Section when they talk about penalties and punishments as -- I think the word they use is occasional lapses into -- into less accurate language. But I -- we have set them all out in our brief. I submit they show quite clearly that Congress thought it was going to punish these people, that they deserve punishment, they ought to be punished and that this was the way to get at them when they were outside of the United States. This is punishment imposed, in other words, without the protections of the Constitution. And I think it should be stricken down. But before I close, let me try and put the case in perspective, at least put it in -- in my perspective. To me, this concept of forfeiture of citizenship by administrative act, by an administrative official saying it's gone, is a very frightening business. The right of citizenship which you acquire by birth in this country is probably the most important constitutional right you have. Once that is taken away, you are here then in this country by sufferance and by tolerance. You can be expelled, banished, and once you're banished, you have no constitutional rights left at all. So the right we're talking about is not, by any means, a minor right, it is the major right of Americans. Now, I think I detect in the brief of the Government some appreciation of the dangers or of the fears that might be raised by the application of this newly asserted power. The Government concedes or perhaps, more accurate I should say, emphasizes that this power can be -- can be utilized for conduct of only a particular kind and the words that they use to describe this limitation are conduct closely related to the cardinal elements of nationality and allegiance. Those words would carry a good deal more comfort to me if they were not already construed. In this case and in this brief to apply to voting for beer and wine in liquor stores in Canada which to me is anything but closely related to the cardinal elements of nationality and allegiance. But even if you are to take them at face value, they seem to me to offer very little comfort. They assert a power in Congress to define the cardinal elements of nationality and allegiance and to provide that unless those cardinal elements exist, you are not worthy of citizenship and it's taken away from you. This can be done by administrative action with -- with or without judicial review. It may be possible, it may not. This is not done to punish anybody for a crime. This is simply a congressional definition of 100% Americanism and an administrative determination as to who is 100% and who is 90%. The 90% aren't worthy of citizenship and it's taken away from them, and that's the end of it. That, to me, is a terribly frightening prospect. I think the decisions of this Court and the history of this country deny that any such powers that was ever contemplated for Congress, I think the power that Congress is now trying to assert finds no support in -- it certainly is denied by the Wong Kim Ark decision. It was explicitly denied in the Mackenzie against Hare. It finds no support in Savorgnan. It seems to me to be inconsistent with the statement made in Rabang against Boyd. And it seems to me utterly inconsistent with the nature of American constitutional government that a constitutional right, a right derived without the necessity for legislation or judicial action, derived from the Constitution can be taken away by a congressional definition of citizenship for who is or who is not worthy of citizenship. I submit that such a power is that should be finally and firmly forbidden.
Felix Frankfurter: Before you sit down, Mr. Horsky, may I ask you trouble you for a reference of the --
Charles A. Horsky: Yes, sir.
Felix Frankfurter: -- the Attorney General's opinion? I don't find it in your brief or do I --
Charles A. Horsky: The Attorney General's opinion?
Felix Frankfurter: The reference. You said the Attorney General had ruled in voting for -- on idea of plebiscite.
Charles A. Horsky: Yes.
Felix Frankfurter: Is it in there?
Charles A. Horsky: Yes. It's in the reports of the Immigration and Naturalization decision. It's on page 21 of my brief but it's the -- it's the Matter of F, 2 I. & N. Dec. 427.
Felix Frankfurter: Which one is that?
Charles A. Horsky: This is the white brief.
Felix Frankfurter: What page?
Charles A. Horsky: 21.
Felix Frankfurter: (Voice Overlap) white brief?
Charles A. Horsky: Yes, about 10 lines down.
Felix Frankfurter: The matter of whom?
Charles A. Horsky: The matter of F. F blank.
Felix Frankfurter: Is that where I find -- the opinion is not reported in the opinion of the Attorney General?
Charles A. Horsky: No. The Attorney General simply stated that he --
Felix Frankfurter: It's a letter of his letter.
Charles A. Horsky: It's not even a letter. He just overruled and refused to accept the decision of the board.
Felix Frankfurter: I -- I look from --
Charles A. Horsky: That's the only place that I --
Felix Frankfurter: (Voice Overlap) --
Charles A. Horsky: (Voice Overlap) report.
Felix Frankfurter: -- the opinions of the Attorney General. I couldn't find it. All right.
Earl Warren: Mr. Solicitor General.
J. Lee Rankin: May it please the Court. Counsel concedes that if there is a problem of dual citizenship or allegiance that is divided between several countries, he can recognize a need for the type of action that Congress has dealt with in this Section 401. I suggest to the Court that the real burden of the arguments in these cases is that a citizen knows owes no allegiance to any country regardless. The facts that we have to deal with in this particular case, since this Court deals with cases and controversies, should be looked at again to see what happened here with regard to Perez. He was born in the United States but the fact show that both of his parents were Mexicans. And under the Mexican law just as -- is the case with our law, he was a citizen of Mexico. Now, whether he ever did anything to expatriate himself or denationalize himself under Mexican law is not shown in this record and there's no finding in regard to it. And there is no specific finding that he is a dual national. There is no question about that law and there is a specific finding that he was born of Mexican parents, both father and mother and born in United States which would give him citizenship under the laws in both countries. That is a fact to be dealt with in this case. Then he went with his parents --
Felix Frankfurter: Didn't you -- may I say that you think that's important than -- is it a right inference that in each case, you have to ascertain what the laws of nationality are of alien parents with a child that's born in this country?
J. Lee Rankin: No, I don't think that's conclusive in this case.
Felix Frankfurter: No, no. But it's a relevant factor (Voice Overlap) --
J. Lee Rankin: It's a relevant factor because of the problem that Congress has been trying to deal with since 1868 when they provided that a person -- a citizen of the United States could expatriate himself as to a foreign country. Now, you've got to be able to have it both ways and Congress was trying to deal with the problem that all of us in this country are immigrants as we go back on our various lines. And there are all kinds of calls upon the citizens of this country as they came over here for all kinds of obligations of citizenship to the countries from which they came. And we had the various obligations that we imposed upon our citizens after they arrived here and it got to the place that in deal -- dealing with those problems in the conduct of our foreign affairs, there would be demands by certain countries, Germany is a good example and many others, in which they call upon our people to render service in the armed forces. And of course the war of 1812 is a classic example of where the British wanted these various persons that we claim are our citizens to serve in their name, proceed to take. And it was therefore a clash between the two sovereignties that was constantly produced that Congress was trying to deal with. And so after they passed the statute in regard to desertion and draft evasion in 1865, more than 100 years ago, they also proceeded in 1868 to provide that any American citizen could determine for himself that he want to get read of any other nationality that he had and proceed to do so. That was the first time that Congress recognized that the citizen should have that power. But that was the basic thing they were trying to deal with in this whole area was the problem that was imposed upon our Government by dual or multiple claims of citizenship by several sovereign powers. So here, we have a man who's, on the face of the record, was the citizen of both countries. Now, let's see where his allegiance was. He was born in 1909. 1919 and 1920 sometime between those two dates, he went to Mexico with his parents. Did he come back here to get this valued citizenship all of the opportunities that were available to American citizens? He lived in Mexico from 1919 or 1920 to June 19th, 1952, except for the few times I'll call your attention to that he came back. And when he came back, did he say, “I am an American citizen. I'm claiming all these precious rights, and I also want to perform all of the obligations that an American citizen owes his country”? He did not. In 1932, after he was informed that he was born in Texas, he married a Mexican national. He has seven children by that wife. The record -- so far as the record goes, they've always been resident of Mexico along with his wife. In 1940, he knew he should register at the outbreak of World War II but he didn't. He didn't want allegiance to the United States, enough to perform any obligation with that character. July 28, 1943, he applies for admission to the United States. Does he say he is an American citizen, value any of his rights? No. He says he is a Mexican, stating that he was born in Mexico. Now, in 1928, many years before that, he was informed that he was born in the United States, and he was admitted in July 28, 1943 for a temporary period in the United States on the statement that he was a Mexican national and was born in Mexico when he knew the fact he is to the contrary. Then in March 1944, he returned to Mexico. He doesn't value his privilege so that he cares to stay much in this country. In April 1944, he again applies for admission as a Mexican alien. He never says a word about being an American man and is admitted temporarily.
Earl Warren: Those are admissions sort of in bond, aren't they? Didn't he come over in that work program --
J. Lee Rankin: That's right.
Earl Warren: -- during the war where we let Mexicans come over -- over here on the understanding that they are to go back after six months or so?
J. Lee Rankin: Well, but if he said he was an American citizen, he wouldn't have even to do that. Of course, he'd had.
Earl Warren: No, no. I -- I say. But he -- he did come in under that program --
J. Lee Rankin: Yes.
Earl Warren: -- and that kind of (Voice Overlap) --
J. Lee Rankin: That -- that's right.
Earl Warren: Yes.
J. Lee Rankin: And he was getting work in this country. I presume in -- and that was part of that work program. But he didn't say he was American citizen at any time.
Earl Warren: No, I understand.
J. Lee Rankin: He could have gotten back into the United States any time by being an American citizen. Then he returned to Mexico, again, in November 1944. He admits in this case that from November 1944 to July 1944, he remained in Mexico to avoid the draft. There's no question about that. He was admitted several times. In July of 1946, he voted in a political election in Mexico. No question about that. Now, in view of that history, is he a Mexican national or is he an American citizen? What is he trying to do? Time after time, he said he's a Mexican.
Hugo L. Black: Oh, is that (Inaudible) the court's finding?
J. Lee Rankin: No, the Court's finding was --
Hugo L. Black: What -- what's (Inaudible) in argument you're making now, there's a point of law raised, the constitutionality --
J. Lee Rankin: I'm trying to point up the facts, Mr. Justice, to show what is involved in this particular case and then I want to deal with the constitutional question of what Congress is trying to handle and recognize this hand in this area with regard to the problem of dual nationality and the effect it has on our foreign relations and the conflicts that its -- that is -- the Congress anticipates, it will cause in the conduct of our foreign affairs and that that is the reason and a very reasonable reason that Congress makes the provisions that it has that apply in this particular case. Now, questions were asked from the bench as to why in the history of this provision about a political -- voting in a political election, why was that included as a reason for a person losing his citizenship and there was a committee consisting of the Attorney General and the Secretary of the State, Secretary of Labor who was given the responsibility by this Government back in 1938, a number of years ago, to try to ascertain what should be done about this problem of expatriation in a number of different areas. And they didn't just come out that year with the particular recommendation to the Congress but they instituted a series of studies that lasted over a period of about two years. And then they presented to the Congress which acted in 1940, their recommendations about a series of these various provisions that should be included to take care of this fundamental problem as it had originated and developed in the conduct of our foreign affairs, immigration and the other problems that the Government had had to deal with. And this is what they say about a political election and they told the Congress at that time that it's part of the history. It was the Cabinet Committee which proposed the national -- Nationality Act of 1940. This is the quotation, "Taking an active part in the political affairs of a foreign state by voting in a political election therein is believed to involve a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States, whether or not the person in question has or acquires the nationality of the foreign state. In any event, it is not believed that an American national should be permitted to participate in the political affairs of a foreign state and at the same time retain his American nationality. The two facts would seem to be inconsistent with each other." Now, that was what this administrative department said after a careful study of this problem as they had been dealing with over a period of years in the conduct of the Government.
Earl Warren: General, I'll probably just to break there for a moment. May I ask this? If the facts of this case were changed only to the extent that the mother and the father of Perez were native-born Americans, would you be here?
J. Lee Rankin: Well, I think I would, Mr. Justice -- Chief Justice. I think there's the further problem of whether or not the draft evasion, in itself, is an action that the Congress -- it's a reasonable action for the Congress to provide in this manner for a loss of citizenship. And that isn't -- in my opinion, that isn't the same case as the Mendoza-Martinez case that the Court is now holding and hasn't determine about whether it will grant certiorari. But I think we do get down before I get through at Trop at least to the basic problem of whether or not there is a constitutional power and I think that the constitutional power question is quite simple but, furthermore, whether the exercise of the power, in case of diversion -- desertion and draft evasion, is a reasonable exercise of that power even if you don't have the dual nationality problem.
Earl Warren: Well, the only reason I asked it was because you placed some emphasis upon the dual citizenship of this man and his conduct in living over there and I just -- I just wondered if -- if basically that would -- that makes any difference with your case. May we treat this case just as though the parents of Perez were native-born Americans?
J. Lee Rankin: Well, I -- I think not, Mr. Chief Justice, for this reason. I think it's dealing with a case or controversy theory that this Court follows that here, you have before you, the -- what seems to me the more a fortiori case where you have dual citizenship problem because there, according to the whole history of our country, the -- the Congress is solving something fundamentally dealing with the clashes between sovereign nations and it must be dealt with in order for our country to be able to handle foreign affairs. And therefore, you have a different problem. Now, I think that -- that you have that kind of a problem in Trop, anyway as we deal with that case but only as to desertion. Because there, we don't have a question of dual nationality, we have the question of whether or not there -- it is a reasonable exercise as applied to the principle of desertion. But it seems to me that in this particular case, in the facts that you're dealing with here on the principle, the Court has always followed that this deals with the facts in a particular case before it, whatever they are, not the hypothetical cases that might be propounded to it that here, we have a dual national problem and it's more -- very nearly comparable to me to the Mackenzie against Hare situation and the Savorgnan case in regard to the problem of whether or not they can continue to have the allegiance to another country as exemplified so clearly in this case and be -- be able to enjoy the benefits of the citizenship in United States. Now, it seems to me that the Court must address itself too to the great problem and the great issue here. Is citizenship in the United States a one-way street as the expression goes? Or are there obligations as well as privileges? I wouldn't say to -- for a minute to this Court that American citizenship isn't one of the most precious things in the world to every one of us. But if a man says, “This thing that's so precious to me, the idea of being an American citizen, being able to call upon my country when I go into various places throughout the world, to protect me diplomatically and otherwise in my various activities,” and in the same breath say, “I won't fight to protect the life of that country. I will go out of that country and live for the whole term of the war and stay there so I can't be prosecuted,” and you'll recall that you can be prosecuted several times after you served once for evading the draft. If your number comes up again, you can be called up again with the idea that that way the person might repent and serve his country yet before the war is over.
Earl Warren: Well, General, is that -- is that was really than -- than a man who hides out in this country throughout the war, changes his name, his -- his place of living and uses forged documents and so forth to evade the military service and -- and effectually does evade the -- the service just as much as Perez did? Is he not just as disregardful of citizenship as -- as this man?
J. Lee Rankin: I think he is. There's a -- there is a further problem though that the foreign country, even as to aliens gets in to the Act because it has obligations just as we recognize obligations to aliens and if a man is obtaining sanctuary in a foreign country, its entirely different problem with regard to our foreign relations than if he stays in our country and we just aren't able to find him. Now, Congress, it seems to me, could very well decide that in the other case, a man who rejects this fundamental basic obligation of citizenship and won't even fight to protect this thing that he says is so precious to him more than anything else could also be classified or included but this Court has held because Congress doesn't include everything in a particular statute, it doesn't make it invalid that it can deal with a part and still be a constitutional action by the Congress.
Earl Warren: Then it is your position, the draft evader in -- in this country never left the country at all and regardless of dual citizenship could be deprived of his citizenship for draft evasion.
J. Lee Rankin: Well, the -- the immigration laws at the present time don't provide for such a thing.
Earl Warren: No. But -- but I say --
J. Lee Rankin: And --
Earl Warren: -- I say to you, it's your position that they could do that.
J. Lee Rankin: I would want to tell this Court that they could, yes. I think that if Congress sees fit to take that type of action as to -- I think there is a difference between a man who does not carry out his obligation of citizenship and continues to stay in the country and a man who fails to carry out that obligation of citizenship that is a primary obligation, and goes outside of the country, then you have the -- the question of deportation and -- and whether or not he has a right to come back in but if he just stays here and continues to live here, it seems to me there is a further problem that the Court would have to address itself that it doesn't have before it in this case or any of the case.
Earl Warren: It might -- might even be more reprehensible because he stays here and accepts all of the benefits of citizenship, all of the -- all of the freedom and all of the protections that this country gives him while he's here but when he is in another country, he at least is on -- he's on his own and not -- not any burden on this -- this country. It's -- it's difficult for me to see the difference between the two but --
J. Lee Rankin: Well, maybe I can help a little more because I think that the whole history of this problem has been dealing with the clashes between the sovereignty of this country and its obligations to its citizens and that of another country. That comes in to the picture if a man goes to another country and obtain sanctuary and of -- of the benefits of staying in that country whatever rights he has an alien in that country against our demands for him which you don't have if he stays within our country. Now, I'm not saying one isn't reprehensible and the other is all right but I think you have this problem in regard to foreign relations which was historically where this whole matter began in the case where the draft evader goes out of the country and stays and then loses his citizenship that you don't have in the other case.
Earl Warren: If I may -- if I may ask just one other question. Suppose in other -- other serious crimes that Congress makes the distinction between people who commit a crime then live in this country and those who commit the crime and flee from the justice of this country and go to -- to another country, do you think they could make a distinction between the two to such an extent that they could take the citizenship from the man who does go to the foreign country and -- and not take it from a -- from a man who remains here? You know, we do have thousands of -- of people who commit crimes and -- and then leave this -- this country and sometimes they never come -- never come back --
J. Lee Rankin: That's right.
Earl Warren: -- but their citizenship is not affected even though they're most serious crime. But do you -- do you make a difference between those two -- distinction between those two?
J. Lee Rankin: Well, first I'd like to say that I certainly would not say that you can take the citizenship away from American citizen for any crime. I think that there has to be a fundamental connection between the obligations to that citizenship and the particular act that you're dealing with when you say that you've expatriate or lose his citizenship because of that. But I think the only basis that you could possibly say that you would take the one group for the man who goes out of the country and take his citizenship away because of that and not for the other group, it would be because there was a real sound difference that this Court found between the two situations that the one caused a problem in regard to foreign relations that the Congress was fairly and honestly dealing with but you didn't have in the other situation which would justify the action. Now, whether it was the wise thing to expatriate in the one case and not from the other, it would seem not -- to me not to be the constitutional question the Court would be trying to resolve. He would be trying to see whether there was any sound basis or justification for the Congress in making the difference whether it should later reach the other case too for some reason. It would seem to me not to be part of the problem.
Earl Warren: Well, I -- I was just wondering if you put it on the basis of our foreign relations. If a man leaves this country and stays over in another country just to avoid the draft, how would it be more -- how would it more greatly involve our foreign relations than if -- if a man committed murder and went to a foreign country and remained there in order to avoid justice in this country?
J. Lee Rankin: Well, there is a -- a difference in regard to our expedition treaties and most situations would cover the murder case, I think. But --
Earl Warren: Well, let's take serious crime that isn't and there are a lot of crimes --
J. Lee Rankin: Yes, sir.
Earl Warren: -- that are not subject to deportation.
J. Lee Rankin: Yes. To --
Earl Warren: It's difficult. I'm just trying to -- I'm just trying to find out how it affects our foreign relations more in one case than -- than in the other.
J. Lee Rankin: Well, I'm not sure that it does if he goes away because I think you have the same problems of whether he would be harbored and whether it would be obligations to him as an alien in a foreign country by reason of that going into that country. But I do think you have this basic thing that that this is a cardinal element of citizenship that there is an obligation if you want to be a citizen to preserve the very life of the country that you claim you're a citizen of. And I'm not saying that just because a man murdered another man and went to another country even if it involves all kinds of foreign relations trouble that you should be able to take his citizenship away because I don't think that relates itself to the citizenship but I think that when you talk about deserting in time of war whether the man is engaged in -- his unit is engaged in combat and you can avoid the fight that -- where you might get killed in order to save your country and where you evade the draft so that you won't outrun that risk of being killed in saving your country. But those are the very most fundamental things about the preservation of the country and citizenship. And that citizenship, in my concept, and I'm confident in most Americans, involves obligations on both sides, the country and the individual and certainly there's no question about the value them -- of them to the citizen and what he gets in this country above all others in the world. But on the other --
Earl Warren: (Voice Overlap) --
J. Lee Rankin: -- hand, he has certain responsibilities.
Earl Warren: I think that's true and I think no matter how any of us may view this case, I don't think anybody would object to the Government punishing the man from doing that, punishing him to -- to -- very severely desertion. There's no -- there's no complaint made even to the death penalty under certain circumstances. So it -- I -- I think the fact that one might question the doctrine that you laid down wouldn't -- wouldn't mean that you doubt that the Government was not in a position to punish -- punish very severely for the -- for the things that you point out as a punishment taking human life and other -- other very serious offenses.
J. Lee Rankin: Well, I am sure of that but I think there is a further factor in the thinking of Congress that the Court will have to determine in this case and that is whether or not it's reasonable not only to punish for the act but to conclude that that person really shows no allegiance by his very act to the United States. Now, I say, in order to have anything like that, any such conclusion, the act has to be one that's so cardinal, so fundamental to the relationship of the obligations of citizenship that everyone would recognize that it is a primary obligation but once you find that, it seems to me, that then you have a situation where Congress can reasonably determine that this person has repudiated all his obligations and therefore his allegiance to his country.
Hugo L. Black: You mean by that that Congress is reasonably -- I don't quite agree (Inaudible) but do you think by that that Congress is reasonable to say that every man can go to other country on each circumstances or (Inaudible) shows his loyalty (Inaudible)
J. Lee Rankin: On each --
Hugo L. Black: (Inaudible) merely means that many of them would show his loyalty by the way in which they vote (Inaudible)
J. Lee Rankin: Well, I would say no to the answer to the first question, Mr. Justice. I wouldn't say --
Hugo L. Black: If that's true, the thing that bothers me is why there's a consequence with reference to the basic things that brings about his disloyalty or it brings about the loss of citizenship. If it is to be decided on the facts, cases and controversies, why should we have a right to trial under this method of trial by the Constitution?
J. Lee Rankin: Well, of course, in this particular case, there is no conflict about the fact that this was a political election when he voted. Now, with regard to the kind of elections that I'm sure would bother you -- bother anyone, the Congress has dealt with ameliorative legislation to considerable extent with all that type of election, hence, provide for short form nationalization in regard to the Italian elections and some of the German elections and a number of different situations where there could be some reasonable basis for the action in trying to help the interest of the United States even as was considered in some of those situations and also to help a particular problem in that country rather than showing any particular allegiance to that country as such. So if the Congress has tried, and I think very carefully, to narrow this situation down and -- or there were some reasonable doubt about whether the person was trying to actually showing the allegiance or participate in establishing the -- the Government or the controlling governing people in a foreign country, that they've given all kinds of provisions for that -- to restore their citizenship with very little difficulty.
Earl Warren: Does Congress have -- have the right to say that if I -- the one man votes in a particular election or if he votes in a particular way that it is either in the interest of the United States or against the interest of the United States, and in one instance, he is entitled to keep his citizenship than in the other, he is not?
J. Lee Rankin: No. When you're to say in a particular way, I --
Earl Warren: Well, we were --
J. Lee Rankin: [Laughs]
Earl Warren: -- talking about that (Voice Overlap) --
J. Lee Rankin: I couldn't -- I couldn't take that. What I think the Congress was doing in those particular situations that we referred to in our brief was -- there was a showing of considerable extent to the Congress that people did vote in the Italian elections and some of the German elections and other elections because whether they were wise about it or otherwise, they were trying to help a certain cause that they felt was in the interest of our country and so they made such a provision. But I -- I don't know of anytime that they've tried to address themselves to whether a person was casting a good vote or a bad vote as I gather from your question, I wouldn't say that that was a reasonable classification.
Earl Warren: How about the wine and beer relation?
J. Lee Rankin: Well, I -- all I know about that is the particular matter in the brief and I should have checked into that. I'll check into that report (Voice Overlap) --
Felix Frankfurter: I was going to ask you about that, Mr. Solicitor, because I must say I've got a quite (Inaudible) when Mr. Horsky stated that case that a sizeable (Inaudible) when he said that the Attorney General -- I understood him evidently, erroneously because I've said that the report is now ready. He indicated that this was an opinion of the Attorney General. As I -- we did the case of (Inaudible) is a very different thing. The Board of Immigration Appeals on its own reasoning as well as on the advice or rather on the opinion expressed by the legal adviser of the State Department is that that was not (Inaudible) determine the statute. That was not a political, what is the phrase?
J. Lee Rankin: A political election.
Felix Frankfurter: Political election. It then went up to the Attorney -- the then Attorney General, it could have gone to anybody else but it was presented to the Attorney General, and he said that that's a very doubtful question and he thought it ought to be passed upon by the Court and so he felt -- I feel that a judicial decision thereon is desirable and so he reversed the Board of Immigration Appeals, of course, so that the matter could then be taken to the Court and have the Court's decision. I should have been -- I -- I was shocked that it thought the Attorney General had ruled, as a matter of law, as a general ruling, he's deciding between beer and wine or whether beer and/or wine, there's a political (Inaudible) evidently. In this particular case, he thought this was a good thing for (Inaudible) take the Court to decide would somewhat release my (Inaudible).
J. Lee Rankin: My reaction would have been that it couldn't have been a political election in accordance of the requirement --
Felix Frankfurter: Well, the Attorney -- the -- the Board of Immigration Appeals so decided, the Assistant Secretary of State in charge with the matter was no mean lawyer himself and the legal adviser, all decided it wasn't. And the Attorney General had said nothing about it and he thought that this particular case (Inaudible)
J. Lee Rankin: From the -- what you have said about the report, I think it's an -- it isn't quite fair to say that the Attorney General made such ruling, and I -- and I understand you didn't --
Felix Frankfurter: Well, I -- I'm in the opposite.
J. Lee Rankin: Yes. And the Attorney General really was just trying to give the courts an opportunity to decide the question.
Felix Frankfurter: And that he stated -- it might have given us the -- the advantage the other way around but evidently, he want to get a ruling from the Court.
J. Lee Rankin: It would seem to me that in this area, there are a number of problems -- questions the Court must determine upon deciding whether or not the particular statute is reasonable in finding that expatriation will follow. First, there would be the question of the relationship of the statute in dealing with other countries that I have tried at some length. And I think Mackenzie against Hare is one example and Savorgnan is another. Those cases, as counsel, was relating the situation seemed to me so comparable to Perez in some ways in that if -- if you could get any clear understanding of what was being claimed in the Mackenzie case, the lady certainly didn't want to give up her citizenship in United States. And she made that very clear time after time. But she did marry the man she wanted to marry to. So her act in marrying was a voluntary act and -- but she had no subjective intent to lose her American citizenship at the same time but that was what -- was the result. It seem -- it seemed that the same is true in the Savorgnan case. There was a -- an act of allegiance to the Italian government but there was also a desire on her part, very real one, to continue to be an American citizen and no subjective intent to give it up but the Congress had said that by doing this particular act of pledging allegiance to the foreign country that she did -- did lose her citizenship and the Court so held.
Speaker: Will you, at some stage -- I suppose you will address yourself to the basic of your case. What's the constitutional source of this power to (Inaudible)
J. Lee Rankin: Well, in the case of Mackenzie against Hare, the Court dealt with the constitutional power and said that it was a material part of sovereignty of the country.
Speaker: You apply it from Article 1, Section 8, is that it?
J. Lee Rankin: That's right. And it cited the case Curtiss-Wright and a number of other cases in -- that we have dealt with at length in the (Inaudible) brief in regard to the fact that United States has to be a nation like other nations of the world that it has to have the necessary powers that go with that to conduct its relations with other countries and therefore, it was inherent part of that sovereign power that was relied --
Speaker: What are the constitutional limitations of the problem?
J. Lee Rankin: Well, I think it would have to be reasonable.
Speaker: Is it limited by -- expect due -- due process according to you?
J. Lee Rankin: Well, I think it will be due process in --
Speaker: Simply due process.
J. Lee Rankin: -- Fifth Amendment. Then I think you do have a question in the Eighth Amendment as to whether it's a -- an unreasonable penalty or punishment, and I -- I don't think its present in these cases but I think that the Court want to consider that question and we deal with it at length in the brief.
Speaker: Have you made any investigation to ascertain whether the expatriation power is one that's generally recognized on all civilized countries?
J. Lee Rankin: Yes.
Speaker: Oh, if it is then what -- what's the scope of the exercise of that power has been?
J. Lee Rankin: It has been exercised by most civilized countries in very broad provisions but our search did not reveal that had -- it had been applied to natural born citizens in other countries.
Speaker: What about England particularly?
J. Lee Rankin: I -- it's generally applied there but not to natural born citizen (Voice Overlap) --
Speaker: Very narrowly, isn't it (Inaudible)
J. Lee Rankin: More narrowly than some.
Speaker: -- than we do.
J. Lee Rankin: Quite -- quite broadly in the commonwealth but not to natural born citizens. So that the other civilized nations of the world that we are familiar with and deal with constantly and to think they have somewhat background we do in many ways have the same -- have had the same problem and have to deal with it and it made provisions. Now, that we referred to in the brief in detail and you can find it in a study at a considerable length that was made by the United Nations in regard to this problem.
Hugo L. Black: Mr. Rankin, why do you say that the congressional power might be limited by the Eighth --
J. Lee Rankin: Well, it's a question of whether it's --
Hugo L. Black: -- over these cases.
J. Lee Rankin: I will think in regard to -- if you consider it as a penalty --
Hugo L. Black: But is that -- is that the reason you said that you consider it (Inaudible)
J. Lee Rankin: No. I do -- I do not think that that applies in these cases. But I --
Hugo L. Black: Why do you think they'll take the citizenship (Inaudible)
J. Lee Rankin: I think that it's because in regard to the political election, it's an indication of allegiance to the foreign country by us participating in it and I think that where you have the problem of the dual national like we do in the Perez case that there are all the questions of the relationship with a foreign country that involved in that. I think in the draft evasion case, more simply as we have in the Mendoza-Martinez case that it's a question of whether or not the person has repudiated the fundamental or basic or cardinal principle or obligation of citizenship and therefore, Congress thought, separate and apart from the penalty that was provided otherwise that anybody who would so treat his country should lose his citizenship.
Hugo L. Black: Well, if that's the reason, then anybody who should sought to leave this country, should lose his citizenship (Inaudible) problem, doesn't it?
J. Lee Rankin: No, because I think it's -- it's an indication on the part of the citizen that he doesn't want to do anything to preserve these rights that he claims are so precious.
Hugo L. Black: Then the Eighth Amendment, in your judgment, has nothing to do with if Congress is not limited of its power to (Inaudible) Eighth Amendment at all.
J. Lee Rankin: Well, I think it could be. I don't think it is in this particular --
Hugo L. Black: If -- if they did on some ground that it's reasonable (Inaudible)
J. Lee Rankin: Well, I think you --
Hugo L. Black: -- go to the judgment of Congress and then (Inaudible)
J. Lee Rankin: It probably depends on what you mean by reasonable because --
Hugo L. Black: (Inaudible) evidently would turn obviously on what the judge has imposed.
J. Lee Rankin: Well, [Laughs] I -- I know but I -- I'm not trying to making the matter semantic but --
Hugo L. Black: I understand that.
J. Lee Rankin: -- if you include in the word “reasonable”, the question of whether or not it's cruel and inhuman punishment, if it's -- if it's reasonable, it doesn't seem to me that it could be. That's what I mean by my -- trying to answer it that way. If you don't assume that, then I think you have to reach the question on whether it is a cruel and inhuman punishment if you find as a matter of fact that the history is such that under the decisions of this Court and the way that the Court has examined in the penalties in the past, there is a punishment involved. Now, I don't think there's any punishment involved in this case because that wasn't what the Congress was trying to do. We concede -- the Government concede that back in 1865, there was language of penalty used and the Congress provide it specifically for trial and conviction and so forth. But when you get down to the draft evasion provision in the late -- the Act that we're now dealing with in 1944, the Congress deliberately separated the question of this particular incident of expatriation from the other provisions in regard to the penalty for draft evasion. And the Court has said that that's an indication that it should take into account as to whether or not punishment or penalty is intended and then the history shows that the Attorney General recommending it, the Cabinet Committee and the reports were trying to deal with this kind of an incident relating to this -- the rights of citizenship, that is the privileges of citizenship or nationality as distinguished from the penalties for the act of evading the draft itself and this Court has said that those different factors should be considered. And if you find that they're present that they all go to show that it wasn't intended -- intend to be a punishment or penalty. And after all, this Court has said time after time that you don't look to try to find a statute unconstitutional, you look to try to see if it is not -- if -- if it cannot fairly be found to be within the Constitution and that Congress has the power to do what it did.
Hugo L. Black: If that's the case, here, you say you have to look not to what authorize the Constitution expect (Inaudible) it's rather a vague power, I suppose.
J. Lee Rankin: Well, you've given great breath to necessary and proper in many decisions as to the power of Congress and the various powers that it has to have to exist and continue to deal with the various problems this country has and Congress has to deal with from time to time and I don't think that the inherent powers of the United States as a country should be limited except as the various amendments expressly do that. It seems to me that this country has got to be among the family of nations. It has to be able to exert the powers that are necessary to conduct itself and carry on its place in the family of nations.
Felix Frankfurter: May I -- I beg your pardon.
Hugo L. Black: I assume that those who (Inaudible) giving those power and they send them out.
J. Lee Rankin: I'm quite sure they did. And I think that back in McCulloch against Maryland that you -- this Court considered that and found that it had the powers that were intended by the founders in order to conduct itself as a great nation.
Hugo L. Black: Well, I'm rather glad you came back to the (Inaudible)
J. Lee Rankin: I think it modifies the other, Mr. Justice.
Felix Frankfurter: Mr. Solicitor, I'd like to put to you this problem. Suppose one went with you all the way on your analysis of the power of Congress and reached the limitation that you recognize, namely, that -- as was said in Reynolds case, even war power is limited by the Due Process Clause and we get on to the Due Process Clause. What I want to put to you to answer either in the time you now have or in the time that you have in the other cases is this. This Court held in (Inaudible) that while the issue of citizenship, if a man comes in the harbor of New York and he claims he is a citizen to avoid special inquiry in the Appeal Board, in the Attorney General's findings of fact or otherwise, we cannot have a jury trial for that issue on citizenship. But if he is to be deported from this country, then for the reasons given in that opinion, namely, the advantages and the protection from the safeguards of jury as against the administrative process not making any aversion against administrative process except its adaptability from the securities that it does and doesn't at all. When it comes to deportation, the issue of citizenship must be one to which court -- judicial determination, not jury but judicial determination as directed. I want to put to you this, whether that kind of reasoning and considerations have led to that decision (Inaudible) of our constitutional law, isn't applicable on the way of the differences. But as you -- it has an analogous application to the deprivation of citizenship.
J. Lee Rankin: May I --
Felix Frankfurter: So that the issue --
J. Lee Rankin: Yes, sir.
Felix Frankfurter: -- in the first instance is one for judicial determination, not for administrative determination subject to reviewing the courts for the -- within that narrow limit that the administrative exceeded the speed limit. Did I put the question clear? Yes, sir.
Earl Warren: Mr. General, you might as well answer that after lunch. I thank you. We'll recess now.