Aptheker v. Secretary of State

PETITIONER: Aptheker
RESPONDENT: Secretary of State
LOCATION: New York Times Office

DOCKET NO.: 461
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 378 US 500 (1964)
ARGUED: Apr 21, 1964
DECIDED: Jun 22, 1964

Facts of the case

Question

Media for Aptheker v. Secretary of State

Audio Transcription for Oral Argument - April 21, 1964 (Part 1) in Aptheker v. Secretary of State

Audio Transcription for Oral Argument - April 21, 1964 (Part 2) in Aptheker v. Secretary of State

Abram Chayes:

Mr. Chief Justice, may it please the court.

When we recessed a half a hour ago we had just reached the point of identifying in the large the two constitutional attacks on the statute, two bases for constitutional attack.

And I would now like to turn in the first instance to the Fifth Amendment attack.

And as we said, the question here is, is this fair, is it reasonable, is it a rational means to an end that Congress is free to pursue under the constitution.

Now it seems to me that this is fairly readily disposed of the end that Congress is pursing is the preservation of the national security by frustrating the purposes and objectives of a world movement which is dedicated to overthrowing our government.

And as this Court quoting Madison in the 41st federal has said, protection against foreign danger is one of the primitive objects of civil society.

It is an avowed an essential object of the American Union, the power requisite for obtaining it must be effectually confided to the federal counsels.

So we have an appropriate end, an end that Congress can constitutionally entertain.

And we have a finding that Congress has made on the basis of evidence that travel is a necessary part of the apparatus, the integument of this world organization whose purposes it is seeking to frustrate.

So that it is then not irrational to seek to prevent that travel as a way of seeking to prevent the attainment of those unlawful objectives.

Potter Stewart:

I don't -- I am not sure I thoroughly understand what you say -- the basic source of congressional power.

Abram Chayes:

I think we agreed that the basic source of congressional power is the power to protect and defend the national security against foreign danger, foreign danger acting internally through dominated and controlled organizations.

And a foreign, a foreign movement which requires, because it's working at a distance, because it's working through semi-covert internal organizations, requires travel to establish contact and strength and tie the bonds with those internal organizations.

Potter Stewart:

Is this the war power?

Abram Chayes:

No sir, it's not war time and therefore it's not the war power.

Potter Stewart:

Is it the implicit power to regulate foreign relation?

Abram Chayes:

No sir, I think it's power to take, take action to protect and defend the security of the United States.

Potter Stewart:

That's what I am --

Abram Chayes:

Now that's part of the power to conduct foreign relations because the object, one of the main objects of our foreign policy is it must be of our domestic policy is to protect the security of the United States.

Potter Stewart:

It's not the commerce power?

Abram Chayes:

It's not the commerce power, no sir.

Potter Stewart:

I just want to know where you found it in the constitution.

Abram Chayes:

I find it in the sovereign, the inherent power of every sovereign to protect its own existence against foreign danger.

William O. Douglas:

In the Edwards case, Edwards versus California, the Court I think had the power to restrict travel of citizens inside the country on the Commerce Clause.

Abram Chayes:

Yes it did in the Edwards case although as you know Mr. Justice Douglas the Crandall and Nevada suggested and other comments have suggested --

William O. Douglas:

That was a minority view I think in that case.

Abram Chayes:

Yes, but it seems to me one has to consider that it is also --

William O. Douglas:

I was wondering if you could, under the theory, you now advance whatever commerce power, foreign commerce or what not, whether you could justify an act of Congress that would make all members of the Communist Party in-house custody here.

Abram Chayes:

Well I think that's imprisonment and this isn't imprisonment.

William O. Douglas:

I mean in their own house.