Earl Warren: Mr. Davis, you may proceed.
Oscar H. Davis: Mr. Chief Justice and may it please the Court. Those who seek to invalidate this statute Section 401 (j) characterize it as punishment and of course, they rest upon the decision of the Court in the Trop case in which that statute the desertion section was characterized as punishment and held to be invalid. We think that this is different at least as presently applied to this particular individual in various respects. First, the opinion of the Chief Justice for the four Justices in Trop rested we think primarily on the fact as I mentioned before that the result of expatriation or denationalization in that sense would be statelessness and the discussion is in terms of statelessness. That of course would not be the result here because this particular appellee is a national of Mexico and would remain a national of Mexico and as I indicated before lunch that that is not a freak situation. That appears to be, I can't speak statistically because we don't know, it appears to be the majority situation or at least a very substantial situation with respect to all the cases which have come up or most of the cases which have come up both judicially and administratively under Section 401 (j). And as I also mentioned in answer to a query from Justice Frankfurter immediately before the recess, if necessary, we would of course say that the statute can be separably -- separately upheld as to dual nationals. We don't of course concede that it would be unconstitutional as to people who are not dual nationals, but we do have that extra argument as to a person like this appellee who is a dual national and as I mentioned before, apparently, a large percentage of people affected by this statute fall in to the same category of dual nationals. Then, secondly, with reference to the opinion of Mr. Justice Brennan in the Trop case, we think that there are these distinctions. There's the foreign affairs matter which of course was not present in the -- in the Trop case because desertion could occur in this country and expatriation could occur right in this country as was pointed out. There is not of course also the factor of the total repudiation of all authority of this country by going to someplace where the hand of the country would not reach him. There is -- of course also not the fact of dual nationality which I just mentioned, but in addition to those factors, there are three other factors that I think I should mention. One is, Mr. Justice Brennan, you pointed in your opinion in the Trop case that desertion need not always be serious. That there might be desertions from army training camps in this country and you pointed out various situations in which desertion would not be serious. I think the same cannot be said here. I think that fleeing the country to evade the draft is always serious or remaining abroad to evade the draft is always a serious offense against -- against the country. A second differentiating factor is that in the Trop case, as the Court will recall there was the power of restoration which was in the hands of the military that is the military could restore citizenship so to speak by reenlisting or re-inducting the man and some of the Justices indicated a disagreement with that power in the hands of the military. That of course does not exist here. There is no such power in the hands of the military. And the third other differentiating factor in addition to the general ones of foreign affairs which I've mentioned is that in the Trop case, the denationalization follow from an -- a criminal conviction and I think Mr. Justice Brennan and perhaps some of the other Justices pointed out that the -- whatever deterrent effect might happen, the expatriation would have would be minimal compared to the criminal conviction. Well here, you don't have to have a criminal conviction. In fact, the -- the debates reveal and in most cases, Congress thought the people would never return to the country and therefore would never be able to be a proceeded against criminally. They did indicate that if they did return, there was to be this additional conditional qualification of denationalization. But I -- making a more broader argument than just the differences between this case and the Trop case, I want to go back if I may to -- to present the argument that this statute, in its inception in 1944 and its place in the 1940 Act was not a penal statute at all in -- in major essence and in major incidence. The Court -- I won't recall for the Court the legislative history, the 1940 Act because it was quite thoroughly canvassed in the -- in the opinions in the earlier cases, but the Cabinet Committee did say that none of the grounds of denationalization which were presented in that Act were punitive in purpose. Now, you come to 1944 when this particular Section was added to the -- to the portion of the Nationality Act of 1940 which dealt with loss of nationality to that very portion of the Nationality Act which the Cabinet Committee had said, did not impose any punitive sanctions. I think perhaps the most important thing which I could say is that Congress of course had the 1865 Civil War Statute. It deliberate before it, it deliberately made a change. It did not require any criminal conviction. It knew that the 1865 Statute has been interpreted as a penal statute as a punitive statute. It made a change from that statute. It did not require any -- any criminal conviction at all and I think the reason was as I've already indicated that they expected that lots of these people would not come back to the country. Now, my -- the opponents will undoubtedly point out that in the debates, there was certain language in which the word penalty or punishment was used and of course, that was true, but I would like to go through the debates and the history to show -- to put these statements in context. If you will look at the reports of the committees, you will not find any reference to punishment or penalty. You will find a letter from the Attorney General, Francis Biddle at that time, suggesting this provision and talking in terms of these people not being worthy of citizenship in terms of a qualification or a condition rather than a punishment to be imposed upon certain actions. Then, and I did not find in reading the -- the reports of the committees any reference to punishment or penalty at all. Then, we come to the house debates and this bill was first passed in the house. I think that a fair reading of the house debates would also not reveal any real reference to penalties or punishments. The major concern of the house was in saying that these people were not worthy of American citizenship. They should not be allowed to return to this country after they had failed to fulfill their duties. There was a reference by Congressman Dickstein that he considered these people to be traitors, but I think that was a general colloquial reference rather than a designation of this as a crime or punishment. Now, you -- I think the real main burden of the -- of the history in the house was in terms of qualification, in terms rather not of punishment, but of qualifications for citizenship. Then you come to the Senate and it was a very short debate in the Senate and Senator Russell did use the term punishment. These people are worthy of punishment or a penalty, he did. I -- I would stress the fact that this was a bill which was unanimously reported and unanimously accepted and then on the basis of a very short debate in -- in the Senate in which the one person who spoke, though he was a Chairman of the committee, he was, a colloquial usage of the term punishment or penalty should not be used to invalidate a statute of Congress. That when you seek to invalidate a statute of Congress on the ground of unconstitutionality of its invalidly imposing punishment, I think you have to have something more than some words spoken on the floor of the Senate obviously unprepared and extemporaneously in which a word was used which in other context might invalidate the Statute, that is if it were truly punishable. I have already -- I don't want conceive that if it were punishment it would be invalid because my alternative argument of course would be, that even if it were punishment, the consequence which arose in the Trop case of statelessness would not occur here and therefore you would not have the holding of cruel and unusual punishment that you had in that case, but that's my -- I might call secondary argument. The broader argument I would make is that the statute does not impose punishment at all and therefore is not to be governed by the provisions of the Eighth Amendment or the other criminal provisions of the Constitution.
Earl Warren: Mr. Davis.
Thomas R. Davis: Mr. Chief Justice and may it please the Court. At the risk of being a little tedious, it may be useful for us to turn back to the exact terms of the remand since this Court – case is here for the second time. It was sent back to Judge Jertberg, the sole judge in the northern division of our Southern District in California to reconsider in the light of Trop versus Dulles. Now, it has been said more than once here this morning and this afternoon and I'm sure the Court is by this time aware that in Trop versus Dulles, the statute that was held unconstitutional was Section 401 (g) of the national -- Nationality Act of 1940. Section 401 (g) provided that in time of war, a deserter who did desert could lose his citizenship for that Act. Now, the Court is asked to consider Section 401 (j) which provides that a citizen deserter, a potential soldier who deserts before he's even gotten to the -- to the military service who leaves the United States or remains outside the United States may also lose his citizenship. And I -- I submit, I hope I do not exhibit temerity by suggesting that if Congress had simply provided for the loss of citizenship in the case of draft evasion, we wouldn't be here. The key element, the element that causes this to be an issue before this Court is departing or leaving the United States for the purpose of draft evasion. Now, if this is the case, I suggest to the Court that all of the facets that we have considered and Mr. Davis has eloquently spoken on it can be considered in the light of that single element is departing from or leaving the United States a distinction with or without a difference. Is it a distinction that should cause this Court to reverse the result in (Inaudible). The first part considered by the Government in its discussion and I think properly is the Foreign Affairs power. In considering whether or not this element of departing and remaining outside the United States introduces into this statute a new element which should persuade this Court to hold the statute constitution -- constitutional after having held Section 401 (g) unconstitutional. In considering that, I suggest that we first again perhaps at the risk of being a little tedious can look directly at the language of the statue itself. Departing from or remaining outside of the jurisdiction of the United States is the language. I submit Your Honors, if Congress had truly had in mind the Foreign Affairs power, it never would have employ -- employed such awkward and negative language. I do not mean to be facetious but it is possible to violate 401 (j) simply by crossing the international boundary in Lake Michigan to avoid a pursuing federal authority. It's possible to violate it by going to some totally uninhabited land. If Congress had truly had in mind the Foreign Affairs power when it considered and passed Section 401 (j), I submit that it reasonably could have been expected to use some language like entering in to or remaining in a foreign state or a language which would have that same result. In both the Mackenzie and Perez cases, there was that -- an element which does not exist here. The purpose in those two cases was to separate citizens from non-citizens. No counsel appearing before this or any other Court to my knowledge has suggested any other way in which one could -- the Government reasonably could be expected to have separated -- I'm sorry, to have effectuated the power of the Government to tell who was the citizen. It has to establish standards. Therefore in Perez and Mackenzie, there is a unique element. Congress chose the sole available remedy to it. In contrast, if we are considering the Foreign Affairs power here, I submit that no such situation obtains with respect to draft evasion. If the wrongdoer who was in fact a subject to punishment, I submit to the Court that there was available the usual scheme of conventional penal remedies that there is nothing unique in the -- in the fact of expatriation which was particularly necessary to effectuate this congressional purpose. Therefore, for the first time, Congress has departed from a principle which I submit it has hitherto adhered to and that is let us not take away citizenship unless it is the sole means of accomplishing our purpose. Now, whether it is penal in this in the technical sense, I will consider with your permission in a moment. The next question with respect to the Foreign Affairs power is one which was raised by two members of the Court in interrogation on oral argument by the Government and that is how does this coercion actually facilitate the conduct of Foreign Affairs as a practical matter, what does it achieve? If the United States is having trouble with Mexico, does it really make things any easier for Mexico to take away the citizenship of the people who had used Mexico as a refuge from the Draft Act? I submit on the contrary, if the Court please, that it has created a problem of some proportions for Mexico. What is the status of these people who are here? They may or not be citizens of Mexico. As I suggested in my brief, they may be named Jones and they may come from Vermont. Now, what have we done to Mexico to create these stateless wanderers within its boundaries? How have we facilitated the relationship of our Government with theirs? And in that same connection, I suggest that there is nothing in the history of the United States in concrete terms that has been suggested to this Court, which even remotely implies that there is any real problem in foreign relations created or potentially available because of the existence draft evaders in a foreign land. What really is the problem? Now, counsel in his brief has -- has very ably discussed the early problems of the United States with respect to the impressments of foreign sailors which brought about in part the war of 1812. What is that something that we are really faced with today as a practical matter? I think implicitly and I'm putting words in counsel's mouth, but I think implicitly, he admits that the problem doesn't exist. That in Judge Jertberg words, they are no different than ordinary tourist as far as their practical impact on the Government of Mexico is concerned, but seeing that gap in their argument, the Government hastens to say, but the United States may run in to trouble when it seeks to get these people back. Now, I have suggested in my brief and I will merely suggest in passing here the fact suggests that the United States is in a position of having to -- to act without volition that it's forced in to a position where it must create problems with the Government of Mexico or whatever Government may be involved, but I suggest --
Felix Frankfurter: In the relation with Mexico have not always been very (Inaudible)
Thomas R. Davis: No, Your Honor that's true. There have been difficulties from time to time but I know --
Felix Frankfurter: Not long ago -- not too long ago.
Thomas R. Davis: True, your Honor in the time of -- of General Pershing in 1912 as recently as that.
Felix Frankfurter: Brings out the (Inaudible)
Thomas R. Davis: But I suggest that now, those problems are even remotely connectible with the presence of any kind of American Citizen on Mexican soil on a peaceful basis much less specifically the draft evader.
Felix Frankfurter: How do you know that? You're forecasting the future, aren't you?
Thomas R. Davis: No, I mean in terms of history Your Honor. I didn't mean that there would not be, I said that there have not been. I didn't mean to state it that way. And so I suggest, if the Court please, that there is no distinction to be made here between this case and the Trop case by virtue of the existence of the provision for departing from or remaining outside of the United States as far as the war power, I'm sorry, as far as the Foreign Affairs' power is concerned. But we must of course consider whether there is a distinction to be made in terms of the war power. The Government seems to rest its case in chief on the argument that this is the only effective way to reach the draft evader who has left the country or to state it differently in the terms that I have suggested, departing from and leaving the United States does introduce a new element in to the case, which makes this case distinguishable from Trop because we have here a man who cannot be reached by the ordinary penal remedy. That seems to be the thrust -- the main thrust the burden of the Governments argument. I suggest to the Court in the first place that if we descend to the world of practicality and imagine our draft evader in concrete, whether he'd be in Mexico or any other foreign state, if he intends to remain there or if any event -- in any event he has given up any intent whatever of returning to the United States, he isn't going to be in the least impressed with his loss of citizenship. Why should he care? He has made a basic decision. The Government nowhere has pointed that any example of a refugee, a refugee from a federal penal statute who actually went to a foreign agency of the United States and enlisted their aid. It's true that the Government has pointed to a situation in 1863 where certain persons outside the United States were enlisting the aid of the state department, but the Government very quickly added in candor because it wrote a candid and forthright brief, it added that there was no penal statute which imposed any penalty for draft evasion at that time. With that single exception, the Government has pointed in no case where anybody, whether they were trying to avoid taxes or that is conviction for taxes or whether they were under a sentence for a murder under a federal statute or whatever the statute might be, no case where such a person in a foreign land has relied on his United States citizenship. I submit to the Court at the time that -- I beg your pardon, Your Honor.
Felix Frankfurter: None of us that did they say grasping measures against the prisoner didn't take away his citizenship.
Thomas R. Davis: I'm not familiar with that Your Honor, I'm sorry.
Felix Frankfurter: That the loyalty declared or mediocrity the gentleman that we can see and well the (Inaudible) special statute to impose very heavy consequence not that (Inaudible) can do with that prohibits?
Thomas R. Davis: But Your Honor, did Mr. Blackmore rely on his United States citizenship in connection with his refuge in Paris, or did he simply rely on his refuge?
Felix Frankfurter: He held him -- held himself from the obligations of citizenship or his right.
Thomas R. Davis: Yes, it's true. I -- I have no doubt that that's true in that and other cases. I was saying that as a practical matter, the time when the refugee is going to begin to rely on his United States citizenship again is the day he decides to return and when he approaches this border and asked again that they admitted in to the United States, he is as subject as he ever was to the conventional penal statutes that are available. If what I have said is true, the use of expatriation as a coercive force is totally ineffective. The man who is drawn for good won't care, the man who is coming back and be punished much more drastically and immediately and effectively by conventional penal statutes. And I wonder also Mr. Chief Justice, if it pleases the Court, how this statute actually did help the war effort? Taking for a moment the argument of Mr. Justice Brennan in Trop, it was totally ineffective in the case of desertion. By what magic did it suddenly become of effective in the case of draft evasion? What is the essential difference in that respect? How --
Felix Frankfurter: Do you think a misjudgment -- the Congress will make a misjudgment as to the effectiveness of remedy in this proposal?
Thomas R. Davis: That's true Your Honor, but my argument --
Felix Frankfurter: I'm just saying that every remedy as supposed is constitutionally valid. All I'm suggesting is that we don't sit here and debate whether Congress is wise or not. Some of us think that a lot measures are ineffective and self defeat.
Thomas R. Davis: Your Honor, I'm familiar with your position in that regard and I would say that my --
Felix Frankfurter: (Inaudible) is just mine.
Thomas R. Davis: -- my argument Mr. Justice goes to the question of the existence of a rational nexus to put it in your terms. I submit that the thing is so tenuous and remote to use the words of the trial court as to import the absence of a rational nexus. And if we want them back, if we want these draft evaders back who have escaped to various corners of the world, how are we going to effectuate our purpose by making sure that they're not citizens of the United States anymore and are permanently and for all time beyond our reach. The purpose, the traditional purpose of the Draft Act has always been to use every persuasive force to bring the offender back in to the fold and indeed as the Government itself points out by way of a footnote I believe on page 26 of its brief under the conventional penal statute as the ordinary offender has a time of redress when he, without severe punishment may still enlist in the armed forces and I submit that this is totally at odds with the purpose of Congress to raise armies, to bring together a vast and cohesive force for the purpose of effectuating the war power.
Charles E. Whittaker: Why do you need power?
Thomas R. Davis: If there is deterrent, I agree Your Honor. It is in common only to show that the deterrent does not in fact exist. Part of my prior argument was directed towards that.
Potter Stewart: Or to show that the deterrent is so harsh that it violates the Constitution I think it's cruel and unusual punishment.
Thomas R. Davis: That's another duty of mine Your Honor which is separate to consider the penal whether the statute is penal and if it is penal, then to consider the question of due process and of cruel and unusual punishment. I was for the moment restricting myself to the two powers that we were considering and it brings me to that point Your Honor. I had not intended in this time allotted to me to deal at length with the question of whether or not the statute is penal. Four members of this Court speaking through the Chief Justice held that in Trop, the use of -- of expatriation to punish the deserter was a penal statute. Mr. --
Speaker: (Inaudible)
Thomas R. Davis: Yes Your Honor and I would be glad by way of parenthesis to take up that specific question at this point because I do think it has become particularly relevant. If the Court please, dual nationality and this is a classic case, may or may not be the result of the choice of the individual concerned. In the case of Mendoza, he was governed by the law of the blood. If your mother and father were born in Mexico, you are a Mexican. Mr. Mendoza never had a chance to decide whether he wanted to be a citizen of Mexico or not. There is nothing in this record or in the stipulations to show that he ever evidenced voluntarily a desire to be a citizen of Mexico and I suggest to the Court that it would be within the power of any foreign parliament or authority arbitrarily to create within this country a separate and second class of citizens. The English Parliament could declare that everybody up to the third generation of descent were citizens of England if they wanted to, subject of the Crown.
Felix Frankfurter: You don't have to avail yourself of that in unity but in order of (Inaudible) an obligation to another story --
Thomas R. Davis: There is no question about that Your Honor, but I submit equally that in this case, there is nothing to indicate that Mendoza ever availed himself of his citizenship.
Felix Frankfurter: Probably speaking of this case has been a problem?
Thomas R. Davis: No, true Your Honor. But if we do relate it to this case, Mendoza could as well have been named Smith and still have used Mexico as his place of refuge. He has not thereby made any special use of dual nationalities simply because he went across the border to avoid the draft authorities. The -- furthermore, I think the Court can properly consider whether or not we are not dealing here with a denial of the equal protection of the laws. If without any choice on their part, one group of our citizens can be made a special class of citizens who may be expatriated and then deported by an Act of Congress where there brother citizens may not and where the decision is entirely involuntary and per force it must be when the decision is made by a foreign authority or parliament, if that situation exists, then I submit Mr. Chief Justice and if it pleases the Court that there is a denial of the equal protection of the laws.
Felix Frankfurter: Would you deny that a person who has dual citizenship has a class is then the difference proper to the Congress putting aside all the other arguments? Would you deny that -- that Congress can deal with dual citizens as a class if it was not a dual citizen because a likely order of a dual citizen availing himself, (Inaudible) in relation to the other country is greater than that of a federation that's better about this.
Thomas R. Davis: I have thought hard before I answered that question Mr. Justice and I do deny it.
Felix Frankfurter: You do deny it?
Thomas R. Davis: I deny that Congress may consider as to natural born citizens, in any respect, in any respect that has come within my conception or it can that Congress may consider as a separate class these people who have been vested with a second citizenship.
Felix Frankfurter: I don't think I made myself clear. I didn't mean to imply that it would -- I couldn't even touch the broader question whether the constitution would denaturalize any of them.
Thomas R. Davis: No, I didn't think it did.
Felix Frankfurter: Starting with the power, could it differentiate, could it -- assuming the power was redefined et cetera, could it they we will only be who was dual citizenship, people who have dual nationalities?
Thomas R. Davis: Yes, I had under ---
Felix Frankfurter: Because of a practical fact, a fellow who is also a Mexican citizen has an easier haven or refuge in Mexico than one who hasn't the Mexican citizenship.
Thomas R. Davis: I have under --
Felix Frankfurter: Or that reciting the practicalities on which Congress legislates all the time to a specific case may not present the advantage.
Thomas R. Davis: If the Court please, I did understand your question but I answered it ineptly. My answer is no. As to natural citizen -- natural born citizens of the United States, citizens who were born here, I deny that Congress may consider in any aspect their dual nationality. There is also before this Court in the briefs, an extensive discussion of whether or not there was here a denial of due process of law. Whether there was due process of law or not, however, depends on the preliminary consideration of whether first, this was a penal statute. It is a question which has been discussed on both sides extensively in the briefs but I submit in the first place that we can escape that result on the basis of trial. Aside from the merits of the issue that four members of this Court not only found it was punishment but found it was cruel and unusual punishment. And Mr. Justice Brennan refraining from entering directly in to the sphere of cruel and unusual punishment very definitely found that it was penal and called in effect, species all over those arguments which termed it merely regulatory. I am not unaware of the fact that the mere fact that a man personally suffers from an Act of Congress does not per se make it penal. But there is much more here. This is a -- an act in the first place for which this man went to jail. In the second place, he – it's used in essence for coercion. There's no pretense here that we're separating citizens from noncitizens as we listen to able counsel for the Government it was overwhelmingly evident that the sole purpose was to coerce this man not to do what he might have in his mind to do. The purpose was punishment and the discussion that the Chief Justice set out in the -- in his opinion in Trop in which he spoke to four members of the Court. He made particular reference to the fact that the purpose in 401 (g) in the case of desertion as it is here was undeniably that stopped somebody from doing what they are about to do or to punish them so that others would be deterred in the event that they did it.
Felix Frankfurter: What if he -- if he makes that argument, I think you have to go back on your prior argument that (Inaudible) consider whether there is any potentiality of deterrent but it doesn't say the gathering, the assembling of an army is like --
Thomas R. Davis: Well Your Honor, there may be --
Felix Frankfurter: (Inaudible) because it's intended to the term having just established that there is no deterrent element in it.
Thomas R. Davis: Your Honor, Congress may act with a coercive intent and yet act ineffectively and that is my contention here.
Felix Frankfurter: (Inaudible)
Thomas R. Davis: Ineffectively Your Honor more than anything else because the offender, if he is going to be affected at all is going to be affected when he returns to the United States. If he has no intention of coming back here, there is no reason why he should care anyway.
Felix Frankfurter: But the whole -- whole argument indicates the whole problem of deterrent namely real people who are about to do something that is deemed totally undesirable check in that preference by remembering the consequence on which it is based on.
Thomas R. Davis: Well, if the Court pleases, the question is almost philosophical in character and at the risk of -- of giving a small answer to a large question that there was a finding of at least by Mr. Justice Brennan in Trop that the use of it there in the case of desertion where there was no reason, we didn't even have a question of leaving the jurisdiction of the United States that it was there an ineffective deterrent and it is my contention here that it was ineffective.
Charles E. Whittaker: (Inaudible)
Thomas R. Davis: Within large limits if -- if Your Honor please, but there comes a point when the necessary and proper clause comes to test. Now, the position taken by Mr. Justice Frankfurter and others of this Court as to the scope within which the Congress may act as to the necessary and proper clauses that it is large. Other members of the Court have evidenced a feeling that the scope of Congress is not so large that there must be a really reasonable connection, a really reasonable expectation, if Your Honor please, of results. Otherwise, within that very scope of the necessary and proper clause and nowhere else, this Court has the right to hold that the Statute is unconstitutional. Now, I have omitted the contention and I should not omit it that this statute is penal in its character because of its traditional alliance with the ancient punishments of banishment and of ostracism. And as a final point in that connection, I submit that it -- it leaves (Inaudible) the contention of -- this is a regulatory power when we consider the true most of recorded history, banishment and ostracism and in the end this comes to nothing but that with the harshest among the harshest and least humane of punishments that were used by early man and the abandonment of those punishments has been considered to be an act of enlightenment or triumph of civilization. Now, if the Court should adapt my contention that we are in fact dealing with a penal statute, then we come squarely face to face with the express position expressed by the Chief Justice for three other members of the Court in Trop that Section 401 (j) was dictum in a sense was lacking even the rudiments of procedural due process of law. Yet, before anybody did anything, the citizenship was drawn. There was -- there's no -- even a provision -- as the Chief Justice pointed out under 401 (g) at least there was a court-martial. Somebody considered whether or not the man had done the act in question. In the present case, there's just a naked statement that one who leaves the United States or remains there for the purpose of draft evasion, ipso facto loses his citizenship. The first answer given by the Government to that is of course to rely on Section 503, which gives a right to declaratory relief and was in fact the Section under which this present action was brought, but as previous questions I believe by Mr. Justice Stewart have already brought out, there is no provision here for trial by jury or the other careful protections that are given in the case of a truly penal statute. And on this particular point, I invite the Court's careful attention to a letter which counsel himself cited in his argument. It is set forth for the Court's convenience as an appendix in the amicus curiae brief of the American Civil Liberties Union and a letter -- a letter from Attorney General Bill which is entitled Circular Number 3893 Department of Justice December 5th, 1944.
Earl Warren: I'm curious where that can be found?
Thomas R. Davis: At the end as an appendix, Mr. Chief Justice. Attorney General Biddle expressly provides for a simple examination of the file if the Court please, by the United States Attorney and, “upon the termination, this is by the United States Attorney, upon determination that Public Law 431 is applicable, he shall close the case”. There's never going to be any trial as far as the United States is concerned. He shall close the case and notify the Federal Bureau of Investigation of his action. In the second paragraph going on, “The Federal Bureau of Investigation will thereupon close its file in the case and furnish the Immigration and Nationalization Service for the information pertinent to the application of Public Law 431” and to add something there of my own, this means that the per se, the subject offender is now become an alien. It's up to him to reverse the process and to get out of this situation that the Government has put him in. And in the third paragraph, the United States Attorney shall notify the State Director of Selective Services of the names, numbers and local boards of all such closed delinquency cases so that his records and those of the local boards may be appropriately noted. If the Court please, I submit, the United States has evidenced as clearly as it could that it intended a summary procedure for the depravation of citizenship which could only be redressed after the fact and assuming that the man was in a position somehow to invoke the laws of the United States and this Court well knows that there has been considerable difficulty as an independent issue about that, but assuming that he can get in to the Court, he gets there under a civil proceeding in which the burden is on him to prove that he is a citizen, not upon the United States to prove that he is not. I thank the Court.
Earl Warren: Mr. Davis.
William J. Brennan, Jr.: Mr. Davis may I ask you a question? Suppose Mendoza (Inaudible)
Oscar H. Davis: Well, I couldn't make the argument. I could make part of the argument Mr. Justice Brennan. I could make the argument that he would not be stateless which was I think that the most important factor in the decision of the four members of the Court who joined in the Chief Justice's opinion in Trop because even thought he lost his American nationality, he would still be a Mexican citizen. And I could make that argument. I could not make the argument of his ability to call upon the state of his own nationality for protection. But there would be an argument, not as strong but I think that would exist and could exist in the situation whereby Mexico, if it were in difficulties with the United States could say to Cuba, we don't want you to send Mendoza back to the United States; he is our national, he's a Mexican and we want you to keep him there in Cuba we don't want him to go back to the United States to fight in this war which we don't agree with. So that the fact that he is a dual national and has another country's -- another country has an interest in him and protects him is always a factor regardless of where he goes.
William J. Brennan, Jr.: The -- the Government argue overall that the adding of flight to Mexico might be taken as evidence of the voluntary surrender towards the --
Oscar H. Davis: All I've read is the Government's brief in the memorandum in the trial Court and they did raise the issue of dual nationality. That was most clear.
William J. Brennan, Jr.: I mean in the sense of --
Oscar H. Davis: They did said --
William J. Brennan, Jr.: -- preliminary act duration or--
Oscar H. Davis: I think that they did not say -- say it in the sense and I do not think we could say it in the sense in which the dissenters in the Perez case were talking about it. I do think that we can't say and we do say that it is an indication of a kind of choice, not that he voluntarily renounced American citizenship because I don't think he had that in mind, but that he knew he was a Mexican national and he chose the protection of Mexico as against his obligations to the United States and in that sense, I can't definitively say that we made that argument because I don't recall but -- but it's an argument of law anyway and I make it here now. On the issue of due process, I think counsel was in error in talking about the burden of proof under Section 503 of the Nationality Act -- under declaratory judgment proceeding. As I well know from a case that I had argued previously in this Court, the burden is on the plaintiff, the Mendoza in this case to show that he was born in America which he does by showing his proof, I mean, showing his birth in the United States. The burden then shifts to the United States to prove that he was expatriated so he does not bear the burden of proving, under this Court's decision, that he is not expatriated. He bears the very simple burden of showing that he was born I believe in California in 1922. The burden then shifts to the United States to show that he went to Mexico for the purpose of evading the draft or remain there. Of course those issues are not involved in this case in view of the undisputed stipulated facts, but the -- the general counsel I think misapprehends the request of the proceedings under the statute. Counsel said to the Court that Congress could not have been interested in foreign affairs problems because of the wording that it shows for the statute. He thought that Congress should have said, departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the Presidency to be national emergency. Instead of saying that, they should have said, departing from or outside the United States to enter a foreign country, I suggest that if that language had been used and a man had gone on a ship of a foreign nationality, the Government would have a much harder job than we have here today, but the general language departing from a remaining outside the jurisdiction covers practically every though of it because it covers anybody who goes to the land territory of the foreign country and it covers people who go on ships or airplanes of foreign countries. The only place that I think would not be covered might be some wasteland in Antarctica and I suppose most of those are now claimed by the countries of the world. So that the land which is very apt to cover everybody who goes, who put themselves under the jurisdiction of another country either on a ship of another country or on a -- on land territory. To mention, I have talked a bit on this rebuttal of dual nationality which was also brought out, aspect to which it would brought out in colloquy of Mr. Davis and the members of the Court, but I would like to say several -- few more things. Every country in the world allows a person to renounce his nationality. Mendoza could have renounced his Mexican nationality; he wasn't compelled to retain his Mexican nationality. So that I think that really, there's no substance to the argument that it was imposed upon him willy-nilly and that he had to have it. He could have renounced his Mexican nationality but instead of renouncing his Mexican nationality, he sought to use it. He went to Mexico. And the reason why dual nationality is so important and not just an accident or freak in these cases is that it's because people with dual nationality have a better chance of going to other countries. If a man named Smith from Vermont, who is not a national of Mexico, arrives at the Mexican border, he won't get in ordinarily. Mr. Mendoza-Martinez gets in because he claims Mexican nationality. So, it's inherent in the problem. It's not freak or an accident that people of dual nationality have a greater chance of going to other countries. I don't need to say that they're the only ones because they aren't, but they do have a greater chance and this was an actual effect that a major part of the problem of which Congress was dealing and the appellee here did choose to take advantage of his Mexican nationality and go to Mexico.
Earl Warren: Mr. Davis, I've just been wondering, are -- are we in any such emergency now to this accident applies?
Oscar H. Davis: Oh, yes sir. Oh, at the moment?
Earl Warren: This language is what I'm referring to during the period or in time of war or during a period declared by the Presidency to be a period of national emergency for the purpose of evading or avoiding training and service in the land of naval force in the United States. Are we -- is there a presidential order now?
Oscar H. Davis: May -- may I clear something here, Mr. Chief Justice?
Earl Warren: Yes.
Oscar H. Davis: That the phrase a period declared by the Presidency, a period of national emergency is not a special period of national emergency for this statute. It's a general period of national emergency. In other words, I don't think that the last two lines qualify a period of national emergency declared for the purpose of evading the draft.
Earl Warren: That's what I'm addressing.
Oscar H. Davis: It's a general and I cannot answer the question. I think we are still, I will look it up Mr. Chief Justice. I do not know whether we are now in such a period of national emergency. Of course at the time this case arose, we were in actual war, World War II.
Earl Warren: Yes, but would -- would you let us know place as a matter information whether we are operating under any emergency as declared by the President whether --
Oscar H. Davis: Which would figure this test --
Earl Warren: -- whose acts would apply at the present time of the young man went to another country in order to avoid the draft?
Oscar H. Davis: I will, sir, yes sir. The last thing that I might mention because of the reference of counsel to the fact that in the Chief Justice's opinion in Trop, he did refer to this statue and since he appeared to be speaking for three other members of the Court, I think it's appropriate for me to point out that in Mr. Justice Whittaker's memorandum in the Perez case, he explicitly said that he was not passing on the constitutionality of this Section 401 (j) which was also involved in Perez and he neither expressed nor implied any opinions on that statute. And so, I think it can be fair to be said -- fairly be said that that portion of the Chief Justice's opinion did not speak for Mr. Justice Whittaker who had explicitly said that he was reserving his views on that subject.