Flemming v. Nestor

PETITIONER:Arthur Flemming, Secretary of Health, Education, and Welfare
RESPONDENT:Ephram Nestor
LOCATION:United States District Court for the District of Columbia

DOCKET NO.: 54
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 363 US 603 (1960)
ARGUED: Feb 24, 1960
DECIDED: Jun 20, 1960

ADVOCATES:
David Rein – For the Appellees
Mr John F. Davis – For the Appellant

Facts of the case

Ephram Nestor immigrated to the United States from Bulgaria in 1913 and became eligible for old-age benefits in 1955. In 1956, he was deported for having been a member of the Communist Party in the 1930s. When he was deported, his old-age benefits were terminated and notice was given to his wife, who remained in the country and was eligible to receive his benefits. Nestor sued in district court and argued that the termination of his benefits violated the Due Process Clause of the Fifth Amendment in that it deprived him of an accrued property right. The district court granted summary judgment in favor of Nestor, and the Secretary of Health, Education, and Welfare directly appealed to the Supreme Court.

 

Question

Does the termination of Social Security benefits when the recipient is deported violate the Fifth Amendment right to accrued property?

John F . Davis:

This case involves no issue of fact — fraction but only a naked question of constitutional law.

The issue is simply whether Congress has power to cut off aliens’ Social Security benefits when they are deported on the basis of membership in the Communist Party.

The case comes here on direct appeal from the District Court for the District of Columbia which held that Mr. Nestor’s Social Security rights had become vested and could not be terminated.

Although this Court postponed the question of jurisdiction until argument, the appeal appears to fall squarely within the word and the spirit of the jurisdictional statute which authorizes direct appeals from a District Court decision holding an Act of Congress unconstitutional in a case in which the United States is a party.

The only apparent question on jurisdiction is whether or not the suit below should have been before a three-judge court rather than below — before a single judge.

But this suit was instituted by Mr. Nestor pursuant to the specific provisions of the Social Security Act which provides a remedy for review of administrative decisions by a District Court and makes no provision for a three-judge court in that case.

The three-judge court provision of course comes into effect when someone attempts to enjoin the operation or execution of an Act of Congress.

It does not control where the action is under a specific review provision such as this and where there is no injunction against the operation of the Security Act — Social Security Act involved.

Therefore, it seems clear to us that the District Court is a single judge, did have jurisdiction.

And since his action was specifically based upon unconstitutionality of an Act of Congress, this Court in turn appears to have jurisdiction.

Ephram Nestor came to this country from Bulgaria as a young man in 1913.For some reason, he never was naturalized.

But in 1933, he joined the Communist Party and he remained a member of that party at least until 1939.

On the basis of this Communist Party membership — preceding this were commenced against him in 1953 to deport him to Bulgaria which was the country from which he had come.

And he was, in fact, deported in July of 1956.

Meanwhile, he had qualified for Social Security benefits and in fact, for several months had received Social Security benefits amounting to $55.60 a month.

Potter Stewart:

That was between 1953 and 1956 that he qualified for the benefits?

John F . Davis:

Well, he actually qualified as of November of 1955 and the first — it was the — the order came in 1956 just before he was deported.

So he received the payments for November of 1955, December and end of 1956 until he was deported.

As a specific —

Earl Warren:

How long had he been a member of the system, Mr. Smith?

John F . Davis:

He — he has started an employment which was subject to social security in about 1936, I believe, it was early.

He was — he was a painter by profession and some of his earlier employment came soon after the Act was enacted.

As was specifically provided by a 1954 amendment to the immigration law, the Attorney General notified the Social Security Administration when Nestor was deported.

And this is also specifically required by the law.

The payments for Social Security payments were then terminated.

Neither of these actions is subject to discretion.

It’s automatically under the statutes that when a man is deported for this reason that his payment should — shall be terminated.

Mr. Nestor appealed the termination of his — of his — of these benefits.

He was granted a hearing before a referee in the Social Security Administration.

The — the decision was upheld by the referee and after having exhausted his administrative remedies, he then went to the District Court and asked for review of this decision.

John F . Davis:

And as I mentioned, the District Court held that the statutory provision cutting off the benefits was unconstitutional and it is from that out — the Government has appealed directly to this Court.

Felix Frankfurter:

Where was the statute dealing with cutting off?

John F . Davis:

That is Section 10 to — Section (n), it’s — appears at page 9 — 91 of our brief.

Felix Frankfurter:

Thank you very much.

John F . Davis:

202 in — of the Act.

Earl Warren:

Was it illegal for him to be a member of the party during the years he was a member?

John F . Davis:

Well, I don’t — we don’t know the number — the years that he actually was a member but presumably not.

At least no — there’s no basis of illegality, no allegation of illegality back in 1936.

We don’t have any termination date on — on his membership.

He was a member at least until 1939 and as of that date, there would be no change in the laws.

The basic questions are, first, whether Congress has the power to reduce or eliminate benefits once stranded.

And the second question, if so, were the cutting off benefits to deported aliens under these circumstances is a proper exercise of that power.

Felix Frankfurter:

May — may I trouble with one more thing.

This Section 202 (n), is that it?

John F . Davis:

That is right.

Felix Frankfurter:

Was that in the original enactment?

John F . Davis:

No, this was enacted in 1954.

It was an amendment to the Act in 1954.

Felix Frankfurter:

Amendment to the Act.

And up to that — up to that time, there was no — no provision, implication or anything else?

John F . Davis:

That is right.

Felix Frankfurter:

Well, this is subsequent to the beginning of his earned social security.

John F . Davis:

That is right.

He was — he was — presumably paid taxes from about 1936 until his — until his employment ceased.

And that was before his taxes were — before this was found in the Act.

William J. Brennan, Jr.:

And — and this, I think (Inaudible)

John F . Davis:

Yes, that is right.

William J. Brennan, Jr.:

And came into the law after (Inaudible)

John F . Davis:

After the proceedings were instituted but before there was any finality to any order of deportation.

That’s right.

Hugo L. Black:

Does the statute provide for any refunds to him of what he’s paid in?

John F . Davis:

No, there is no refund given and — in — in this connection.

I address myself first to the question of whether — generally, without regard to the specific grounds for termination whether generally, Congress has the power to reduce or eliminate payments once they’ve been included in an act and once taxes have been paid under the Act.

Now, Congress in so many words has provided that it retains the power to amend or appeal any provision of the Act.

And in fact, the provisions of the Act have been repeatedly amended since it was first passed in 1935.

Felix Frankfurter:

Where is that in the brief?

John F . Davis:

That’s at page 92 and 93 of my brief that begins with the paragraph numbered 4 at the very bottom of page 92.

It’s a short section, the right to alter, amend or appeal any provision of this Act of Congress.

Most of the amendments to be sure have been amendments to increase payments, increase benefits under the Social Security Act.

But in — as an incident of this, there have been many cases where — as to individuals, their benefits have been reduced or eliminated because of readjustments in the Act.

And in the lower courts wherever this has been litigated, the power to change the Act has been — has been upheld.

And indeed it seems essential that Congress should have this power since otherwise the — the Act would be frozen in its original form from the way it was passed.

And Congress certainly never had had intended any such result.

The only reason that there’s any — any question about it is that this is a contributory system and the individual pays — has made contributions before the changes.

And it’s in — it’s important in this respect to know that these contributions are specifically in the nature of taxes.

The — they have made as a part of the tax law and the payments which a man receives are not in any manner conditioned upon his having paid taxes and his having paid taxes in no way gives him a right to — by itself, to qualify for payments under the system.

In other words, the system is financed through a — through taxing the — the labor force for the idea that they will support the Social Security System as a whole.

But there is no direct relationship in the law between the taxes which any individual pay — pays and the benefits which he receives.

Congress purposely tied the — the financing of the program onto taxes of the labor force because they wanted it felt that Social Security benefits were not charity, that they were not in the nature of — of relief that labor was paying for its own — its — its own way in this thing.

Felix Frankfurter:

When you say taxing the labor force, individuals are taxed.

John F . Davis:

That’s right.

Felix Frankfurter:

And I suppose for each individual, there’s a separate fiscal account.

I don’t know where in Social — is there?

John F . Davis:

There —

Felix Frankfurter:

To their general — to their general fund that these — the amounts collected both from an employer and employee go into a general fund, do they?

John F . Davis:

Well, not — not — there — there is a trust fund that covers the whole Social Security System but there is no fund for an individual.

They —

Felix Frankfurter:

No, no, no.

But there is a — that’s what I meant by general fund.

John F . Davis:

But there’s no record even of the taxes as far as the individual is concerned.

John F . Davis:

What they do is to keep an employment record in order to determine what his rights will be, but his rights are not dependent upon taxes having been paid on his employment.

Felix Frankfurter:

No.

But if he — if he — suppose he doesn’t pay his taxes, what — what are the consequences?

John F . Davis:

They’ll attempt to collect them from him.

Felix Frankfurter:

Pardon?

John F . Davis:

They — they will attempt to collect them.

Felix Frankfurter:

He —

John F . Davis:

Actually, his employer withholds them as — as you know in the employer.

Felix Frankfurter:

It isn’t that his insurance that is the Social Security benefit fees, do they?

The Government doesn’t go at it that way.

John F . Davis:

No, they — no, but on the other hand, if they do not collect them for some reason, if he resist the payment of them —

Felix Frankfurter:

Yes.

John F . Davis:

— and — and for some reason, they are never —

Felix Frankfurter:

Or overlooked.

John F . Davis:

— collected.

He still is entitled to his Social Security benefits as long as he has under covered employment during this time.

Hugo L. Black:

Does he lose his job?

John F . Davis:

No.

Hugo L. Black:

If he doesn’t pay in.

John F . Davis:

It has no relationship to his — to his job.

Hugo L. Black:

This particular payment has nothing to do with his job security.

John F . Davis:

No.

Well — well, of course, we’re dealing now with non-government employment.

Of course, this is private — this is Social Security in private employment.

Hugo L. Black:

Yes.

John F . Davis:

And so the — there’s no reason — there’s no federal impact on his job whether he pays or doesn’t pay.

It’s not —

Felix Frankfurter:

As a matter of fact, a good many of the employees’ taxes are paid by the employer, as we know very widely.

Certainly, it’s true —

John F . Davis:

Certainly in the —

Felix Frankfurter:

— in certain classes of — of —

John F . Davis:

— in the domestic field, it must be — be —

Felix Frankfurter:

— the domestic belongs entirely.

John F . Davis:

It belongs entirely.

But what —

Hugo L. Black:

Does the Government make any contributions there?

John F . Davis:

No, the entire system is financed through the taxes on the employer and the employees.

It’s supposed to be divided half and half, except in the case of self-employment where of course — which is now under the system too where the entire contribution comes from the person who is self-employed.

Hugo L. Black:

Do you think it makes a constitutional distinction that they call these payments taxes instead of something else?

John F . Davis:

No, I don’t think that they — the fact they call them taxes or put them in the tax law is the determinative factor.

But the fact that these are not like insurance premiums or annuity premiums which give a contractual right and the right isn’t — isn’t tied in to the payment, does seem to me to make a material difference.

Earl Warren:

Well, doesn’t the Act call it insurance?

John F . Davis:

The Act does call it insurance.

Earl Warren:

Well, why — why then do we have to take the — the tax definition of it rather than insurance?

John F . Davis:

Well, because this does not have the features which you generally have within insurance — insurance policy.

I mean there’s no right of return, no building up of a — of a surrender fund, the — the ordinary features which you find in private insurance are not present here.

This is Social Security insurance in — in a — in a sense rather than a commercial type of insurance.

Earl Warren:

They pay every month, don’t they?

John F . Davis:

They — they —

Earl Warren:

Like we do in insurance?

John F . Davis:

They pay every month — they every week if —

Earl Warren:

Yes, to whom?

John F . Davis:

— they were told — they were told whatever pay — whatever pay there is.

Earl Warren:

And they get a benefit —

John F . Davis:

They —

Earl Warren:

— for having paid it, whatever it might be.

John F . Davis:

That’s right.

But in the same way that they pay income taxes and get benefits from income taxes.

These things have to be financed in some way and these are — are financed through this particular kind of a tax.

Earl Warren:

You mean they get benefits in the same sense here that they do from paying their income tax?

John F . Davis:

In — in — basically yes, they — I don’t mean that the income tax finances the Social Security System, but citizens of the United States get certain benefits and — and rights from the Federal Government.

And these are financed through their paying taxes.

Their rights are not dependent upon their paying of taxes.

They — they — that they — the taxes were enforced against them regardless of whether they get the rights and they get the rights regardless of whether they pay the taxes.

And the same is true in this situation.

Charles E. Whittaker:

Mr. Davis, what is the statutory characterization of these benefits?

I had thought that it was, number one, unemployment compensation, and second, old-age benefits.

Was that not the —

John F . Davis:

That is right.

Charles E. Whittaker:

— statutory characterization?

John F . Davis:

That is right.

Charles E. Whittaker:

Then it’s not called insurance, is it or isn’t it?

John F . Davis:

Well, it is — it is.

It was the original Act —

Charles E. Whittaker:

(Voice Overlap) want compensation insurance?

John F . Davis:

No.

It was in the — in the original Act but when they amended it in 1939, the word insurance — for example, you get the — the — well, the term insurance financing old-age and survivors disability insurance, the term insurance works into the Act in the 1939 amendment.

It wasn’t then in 1935 and there wasn’t any real change in the nature of it, but there was a desire — there was a desire at that time to tell these people that they were paying their own way that this wasn’t charity.

And I think that’s where they put the term — use this term.

Charles E. Whittaker:

Is this a — a truly contributory system in the sense that what you get depends on dollars paid?

John F . Davis:

No.

Indeed, it doesn’t.

The — the — actually, the — in the early days particularly, what you get — what people got was not dependent upon what they paid but from what was being paid currently and that by and large is the way the system works that — that financial itself as you go along and the present labor force is really paying for the Social Security benefits which the older and retired people are getting at the present time.

William J. Brennan, Jr.:

Well, what’s the $22 billions in the trust fund for?

John F . Davis:

What’s it for?

It’s — it’s used — the funds are used from that to — to finance the payments and — and that —

William J. Brennan, Jr.:

Well, I thought you just said that the current take takes care of the current outlets.

John F . Davis:

Well, I — this is — this has been built up through the years and it is used.

For a long time, it was increasing.

This fund was increasing year by year.

John F . Davis:

In the last several years, it’s been somewhat —

William J. Brennan, Jr.:

Well, then —

John F . Davis:

— dropped down.

But you get —

William J. Brennan, Jr.:

— then the income falls (Voice Overlap) —

John F . Davis:

— you get the income from that and you get an appropriation by Congress and the two were used for the payment of the — of the current —

William J. Brennan, Jr.:

But the current payments that is collected with the taxes or what they are from employees and current collection rather and employers do not aggregate enough to pay the benefits currently —

John F . Davis:

That’s right.

I — I should correct myself a little.

These payments do not actually go into the — into the trust fund.

What happens is the payments which are collected from the employee and the employer go into the general treasury.

But there is a general appropriation whereby the same amount is appropriated from funds not otherwise used and goes into the trust fund so that the amount that goes into the trust fund is actually measured by the amounts which are collected.

William J. Brennan, Jr.:

And the demands for benefit, as I — I gather, it’s calculated in time, will exceed the tax payments by such —

John F . Davis:

Well, it —

William J. Brennan, Jr.:

— amount that there have to be drawings on the so-called trust fund, is that it?

John F . Davis:

That’s right.

Except the — they are also based — they — they use the interest from that to supplement it.

The — the tax payments are going up.

The tax payments are now 5% or maybe 6%.

They’re going up — they figured it to 9% before they get the — before they have the system really have enough tax system to cover it with the insurance.

Felix Frankfurter:

Well, now, further word about the financing of it.

It is — that the funds supposedly are expected to derive from the tax on the employer in the labor force.

Suppose to some unimaginable reasons, each unimaginable by means, that those funds are not sufficient for what under the law required to be the Social Security benefit.

Is there an obligation under the statute to pay out the fixed schedules —

John F . Davis:

Yes, they —

Felix Frankfurter:

— to direct appropriations by commerce?

John F . Davis:

Well, they dig into this fund, the — the interest from the fund —

Felix Frankfurter:

But — but that fund —

John F . Davis:

— and then in to the fund.

Felix Frankfurter:

But that —

John F . Davis:

They used up the fund —

Felix Frankfurter:

But the fund came from the —

John F . Davis:

That’s right.

Felix Frankfurter:

— practical resources.

Suppose for some reason, there’s a miscalculation by the Secretary of Treasury, that’s imaginable and there is a deficit, is that — is that automatic as Congress appropriates so as to keep the benefits going?

John F . Davis:

I imagine they would.

We haven’t faced that.

Felix Frankfurter:

No, no, no.

John F . Davis:

There would be no money that —

Felix Frankfurter:

I know but the scheme, the scheme required appropriations by Congress?

John F . Davis:

The annual appropriations by Congress is — that is right.

And if there weren’t enough, well, Congress would either have to abandon Social Security or appropriate more money funds.

The —

Earl Warren:

Mr. Davis, don’t you have some pretty strong language to get over it?

Take your Appendix A on page 89 where you quote the Act.

The title of it is “Old-age and Survivors Insurance Benefit Payments.”

Old-age Insurance Benefits.

Every individual who is a fully insured individual in Section 214 (a) and has attained retirement age and has filed an application for old-age insurance benefits shall be entitled to an old-age insurance benefit for each month beginning.

That’s a pretty strong language, isn’t it?

John F . Davis:

That is this insurance —

Earl Warren:

I beg your pardon?

John F . Davis:

That is as the term “insurance” repeatedly and insured repeatedly.

Earl Warren:

Yes.

John F . Davis:

That’s (Voice Overlap) —

Earl Warren:

Now, you — you wipe that all out.

John F . Davis:

Well, the — the actual legal incidence of this are not the same as we think of as insurance.

Maybe — maybe we’d do better not to argue — maybe I would do better not to argue about whether this is insurance but rather to raise the question of whether there was any contractual right, whether a man has — by making his payments, any contractual right with the Government to a return of — of benefits.

And I think that if we put it on that basis, it’s perfectly clear under the Act that there is no contract right.

Earl Warren:

You mean by that (Inaudible) you mean by that — that we can forget about whether it’s insurance or a tax.

John F . Davis:

Well — well, what I — I — that — I had originally stated it in terms of tax against insurance but I think that the only reason that that is important is because insurance is generally thought of as a contractual right.

John F . Davis:

And if we attack the basis whether or not it is a contractual right, we no longer have to worry about whether it’s insurance.

Hugo L. Black:

I just want to ask you this just — I don’t want to interrupt you but are you — is your defense based wholly on the idea that the Government has a right to cancel for the reasons that exist in this case or that the Government’s right to amend gives it the right to repeal the whole law and abolish the point if it so desire?

John F . Davis:

Well, up — up to the present time, I was attacking — I was approaching the general proposition they have a right to abandon the whole — the whole scheme.

They have abandoned a right to change the entire scheme.

Hugo L. Black:

Or to do a way with it.

John F . Davis:

Or to do a way with it.

And —

Hugo L. Black:

That’s what I thought.

John F . Davis:

— and now, when — eventually, I shall come to the problem that this particular cutting off is an appropriate exercise of that power to — to change and that’s a different question.

That’s a — that’s a question of whether this is appropriate legislation.

Earl Warren:

Have they ever cut off any particular group before this?

John F . Davis:

Not before this.

Since this Act — since this section has been passed, there have been two other sections which deal with — generally, with cutting off groups.

One of them is with respect to aliens who voluntarily go abroad and stay for more than six months.

And if they haven’t been in this country for 10 years, then their rights are cut off.

And the second section provides for cutting off the Social Security benefits of individuals who are convicted of espionage, sabotage in — in the Smith Act cases.

Those are the specific —

Earl Warren:

Three.

There are three —

John F . Davis:

Those are the —

Earl Warren:

— sections.

John F . Davis:

— present provisions in the Act.

The — these last two haven’t been passed upon by — by the support applied.

There have, however, been — as I say, been incidence where other adjustments in the Act have resulted in individuals losing their rights.

Let me give you an example.

For a long time, self-insure — self-employed people were not subject to the tax and their self-employment wasn’t counted in, in determining whether they were retired.

It’s the so-called “work test”.

And in order to qualify for payments, why, you have to be retired.

But when — when self-employment wasn’t covered, you could be retired and — and practice law, for example, on your own.

Then the law was changed to bring self-employed people within the scope of the Act.

John F . Davis:

And as a result, some people who had had benefits and at — from employment and had retired and then supplementing that with their own income, were now — were now cut off from their benefits because they were self-employed and these earnings were now considered as — as part of the — the work test.

This was — this was litigated and the Court — and never got beyond the District Court but the District Court held that this was an appropriate amendment by — by Congress and that rights could be cut off in this nature, in this manner.

I may say there’s been some experience too with the state retirement systems and there is a case, Pennie against Reis, an — an old case, 132 United States in which it was held that — I think that was the California retirement systems holding that they could cut off benefits even though they had once been received within general statutory power to amend.

Earl Warren:

Was there employee contribution then?

John F . Davis:

Yes, sir, I think there was.

Earl Warren:

When was that?

John F . Davis:

I — on — I think there was a contribution.

Earl Warren:

When was that, I say?

John F . Davis:

When was it?

Earl Warren:

Yes.

Felix Frankfurter:

Did you say 132 U.S.?

John F . Davis:

132 U.S.464.

Felix Frankfurter:

Well, that’s great I assume.

John F . Davis:

Yes, it’s a long time ago.

Earl Warren:

I didn’t know of any —

John F . Davis:

We have — we —

Earl Warren:

I didn’t know of any retirement system that far back in California.

There had been.

John F . Davis:

I don’t think I have the data but — but it is (Voice Overlap) —

Earl Warren:

(Voice Overlap) that’s was a turn of the century, isn’t it?

John F . Davis:

Then this — we have collected these cases dealing with the state system on page — systems on page 56, 57 and 58 of our brief.

Pennie against Reis was a — was a — I think he was a policeman.

Earl Warren:

Oh, could been, yes.

John F . Davis:

I think he was a policeman —

Earl Warren:

Could’ve been before back.

John F . Davis:

— and I think he was in California.

Earl Warren:

Yes.

Felix Frankfurter:

I — I don’t want to interfere —

John F . Davis:

Yes.

Felix Frankfurter:

— with the orderly development of your argument and — and if my question does postpone it until you find it fitting.

Felix Frankfurter:

Do you rely heavily on the explicit reservation of the power to amend, to repeal, etcetera?

John F . Davis:

I certainly rely on it, Your Honor.

Felix Frankfurter:

Yes.

John F . Davis:

But I think it would be the same even if it weren’t there.

Felix Frankfurter:

Well, that doesn’t —

John F . Davis:

I mean this is making specific what is —

Felix Frankfurter:

Yes.

John F . Davis:

— essential to make the system work anyway.

Felix Frankfurter:

Well, except we are told sometimes it is important to spell things out.

John F . Davis:

Well, in that — to that — in that respect, that’s —

William J. Brennan, Jr.:

Well, Mr. Davis, do I correctly read your adversary’s brief that they’re not defending the basis of the holding below, namely, that this was a vested interest before it.

John F . Davis:

Yes.

That — that’s quite true.

In several places in that brief, I don’t think they would quarrel with what — with what I have said this day.

William J. Brennan, Jr.:

That’s what I wanted to —

John F . Davis:

They might in some details but basically, they don’t claim that you cannot change that this is the contract right.

Felix Frankfurter:

That’s — it’s 1878.

William J. Brennan, Jr.:

And they don’t claim that this was a vested interest, aren’t they?

John F . Davis:

They do not claim it’s a vested interest.

They say that this particular cutting off is a punishment and it’s unconstitutional.

That’s — that’s —

William J. Brennan, Jr.:

(Inaudible) on the holding that it was vested.

John F . Davis:

He said it was a vested interest.

That’s right.

Felix Frankfurter:

Yes.

Hugo L. Black:

Did you allow —

Felix Frankfurter:

This fund is public fund subject to the legislative control.

Hugo L. Black:

Did you allow mentioning it (Voice Overlap) —

Felix Frankfurter:

And that they’ll be — had no vested interest in that (Voice Overlap) —

John F . Davis:

There’s language in Lynch against the United States.

John F . Davis:

That however is not — that’s a more —

Hugo L. Black:

I think that — I understood you to say they’re not raising that question.

Felix Frankfurter:

And we have (Inaudible)

Hugo L. Black:

It was raised in Lynch against the United States.

Felix Frankfurter:

— but which could not know.

John F . Davis:

They — they’re not claiming it’s a contract in this case.

That is right.

I — I believe they’re not and Mr. Rein would — would be in a position [Laughs] — he have the last word on that but his brief — in his brief, there are several cases where they admit that there can be changes in these rights as long as they’re appropriate changes and comes with the Social Security System.

And that brings us to what, I think, is — is the most — more difficult question in the case and that is whether to cut off an alien’s rights for Social Security business — benefits on the basis of his being deported as a member of the Communist Party, whether this is an appropriate — appropriate exercise of the — of the Government’s right to change the Social Security law.

William O. Douglas:

Would you go so far as to say the Government could — say the State Government could confiscate his house and property and his real estate?

John F . Davis:

No, Your Honor.

I would certainly say it couldn’t.

I mean, I think that Wong Wing proved — establishes the fact that the alien has a right to due process, liberty and property and that they cannot be taken away on deportation.

William O. Douglas:

Even though he has been lawfully deported.

John F . Davis:

That is right.

It is —

Felix Frankfurter:

(Inaudible) question is raised that a special class of deportee (Inaudible)

John F . Davis:

Yes, there is.

There — the — the — it is — it is argued basically.

The — the argument is that this is a punishment because of the classes of deportees that are involved.

This is a punishment which is being imposed upon this particular class.

And for that reason, it is unconstitutional as lacking in due process.

William J. Brennan, Jr.:

Well, there is — actually, Mr. Davis, not all classes of deportees were — are cut off.

John F . Davis:

That is right.

William J. Brennan, Jr.:

And what — at least four omitted in the original law?

John F . Davis:

That’s right.

There were — there are 18 classes of deportees and of those 14 are cut off and four are not cut off.

William J. Brennan, Jr.:

Still not cut off.

John F . Davis:

That is right.

Felix Frankfurter:

What are those or what —

John F . Davis:

If you’ll turn to —

Felix Frankfurter:

(Inaudible) equal protection.

John F . Davis:

That’s right.

The — the deportation statute appears on page 96 through 101 of our brief and I had marked the sections which are the reasons for deportation which are not — not cut off.

And the first one is number three on page 96, which is that the person has become a — institutionalized as a public charge at public expense.

That’s number three on page 96.

William J. Brennan, Jr.:

Is it cut off or not cut off?

John F . Davis:

Pardon?

William J. Brennan, Jr.:

Is number three cut off or not cut off?

John F . Davis:

It is not a — he retained — he still gets his Social Security.

William J. Brennan, Jr.:

He still gets.

John F . Davis:

There are 14 where they cut off and four where they’re not and I’m mentioning the four which are not cut off.

The next one is number eight on page 100, eight on page 100 which also deals with becoming a public charge.

And the next one is nine on page 101 which is failing to maintain a nonimmigrant status, it would be a situation where someone came in here and — a student or —

(Inaudible)

John F . Davis:

— something like that and went to work.

And the last one is 13 which is at the bottom of page 101 running all to 102 and that deals with anyone who — within five years, aids or assists another alien to enter the United States in violation of law.

Felix Frankfurter:

Can you generalize those four? You said that the four (Inaudible)

John F . Davis:

I — I really find it —

Felix Frankfurter:

(Voice Overlap) —

John F . Davis:

— difficult to make a great —

Felix Frankfurter:

It all seems to me on the (Inaudible)

John F . Davis:

I — I find it — well, the — the last one, 13 and probably nine deal with —

Felix Frankfurter:

(Inaudible)

John F . Davis:

No, nine and 13 probably deal with violations of law.

I mean, I think it’s probably a violation for anyone who’s admitted as a student, for example, to go to work.

At least, he can — he’s — he’s doing something he has promised not to do.

13 is definitely a — a —

Felix Frankfurter:

Nine and 13, if I may correct you, nine and 13 (Inaudible)

John F . Davis:

They’re not — they’re not as — they’re not in the same class with some of the others.

John F . Davis:

But on the other hand, some of these other —

Felix Frankfurter:

(Voice Overlap) one as the first one.

It is (Inaudible) both three and there’s another one (Inaudible) with the public charge.

John F . Davis:

Yes.

Felix Frankfurter:

Those cases seem (Inaudible) in — in others.

John F . Davis:

That’s right.

William J. Brennan, Jr.:

But can’t you say some of the things they — some of things (Voice Overlap) —

John F . Davis:

Some of the others are also not very serious.

I — I am not able to find any — the Congress hasn’t helped us in this.

They haven’t told us why they dropped these four out and why they didn’t.

The — the appellant says that this shows that these are — that the ones where this cutoff are punishments.

I don’t think it shows that.

I think some of these things where it’s not cut off, if it were you could say it was a punishment.

William J. Brennan, Jr.:

Well, you would say some attentive distinctions in your brief.

Are you abandoning those?

John F . Davis:

No, I won’t.

Those are the best we can do and —

Felix Frankfurter:

(Inaudible)

William J. Brennan, Jr.:

It’s not a very good thing, probably.

[Laughter]

Felix Frankfurter:

(Inaudible)

William J. Brennan, Jr.:

Well, he hasn’t thought of any of those.

Felix Frankfurter:

Yes.

Certainly, there’s a great deal of —

William J. Brennan, Jr.:

[Laughs]

Felix Frankfurter:

(Inaudible) one, two, four, five and others — and the other ones.

I think there are different force that are narrow — has narrow significance (Inaudible) I offer you those facts.

John F . Davis:

Yes.

Well, that — that maybe — that maybe it, except that hurts my case more than it helps it, if I may say.

Hugo L. Black:

(Voice Overlap) give you less reasons.

Hugo L. Black:

[Laughter]

William J. Brennan, Jr.:

Penalize them (Inaudible)

John F . Davis:

Well, this —

Hugo L. Black:

— from this argument.

John F . Davis:

That — from that argument, that’s right.

So, that is one of the reasons I —

(Inaudible)

John F . Davis:

I don’t see that reason in the — in the statute.

It’s the Government’s position that Congress can cut off this kind of benefits for good reasons or for bad reasons, but since these are privileges, you cannot cut them off for reasons which are forbidden by the Constitution.

One could not make — receive the benefits under the Social Security Act depend, for example, upon race or religion or upon politics because these are bases of classification which the — which the Constitution denies to Congress.

But on the other hand, it seems as though they — no reason why they cannot make a differentiation on the basis of alienage, particularly alienage when it’s tied up with an alien who is no longer living in this country.

It’s long been recognized that if an alien comes here and does not undertake the duties of citizenship that he remains a guest here and that he doesn’t have the full rights, privileges of — of citizens.

He can be deported, he can be denied privileges which are given to the people who — who are full citizens.

Hugo L. Black:

Is that the bill of attainder put on him?

John F . Davis:

Pardon?

Hugo L. Black:

Could that be a bill of attainder put on him —

John F . Davis:

No.

There could not —

Hugo L. Black:

— prior to the grant?

John F . Davis:

There could not be a bill of attainder put on him because the Constitution forbids a bill of attainder and the constitutional rights cannot be taken away from him, but privileges which are granted to citizens as citizens can be withheld from him.

Hugo L. Black:

As far as this is the right to practice law?

John F . Davis:

Probably not.

There are — there are statutes, state statutes with respect to employment and it’s held that — I don’t know about the statute of — they’re just practice of law and probably could be withheld from an alien as a reasonable thing that —

Hugo L. Black:

I mean as a bill of attainder?

John F . Davis:

Oh, no, not a — not the —

Hugo L. Black:

By legislative acts?

John F . Davis:

No, no.

The — this Court itself is — is cast upon the question of — of taking away a right to practice as a — for a (Voice Overlap) —

Hugo L. Black:

And do you think that the bill of attainder, an alien has a right to protect himself against bills of attainder?

John F . Davis:

That is right.

John F . Davis:

If this is a bill of attainder, if this is —

Hugo L. Black:

That’s right.

John F . Davis:

— a bill of attainder, this is — this, we think, is unconstitutional.

Felix Frankfurter:

An ex post facto law.

(Inaudible)

John F . Davis:

Again, if this is properly an ex post facto law, again, it is unconstitutional and it cannot be done.

William J. Brennan, Jr.:

Well, that’s really the argument.

Your adversary — there is two of the —

John F . Davis:

Those are the arguments that they are making and this in turn comes down to whether or not this is a reasonable exercise of congressional power in connection with federal purposes and — and the system and the — and the Social Security System or whether this is a method of punishing.

All of these questions right to jury trial, ex post facto or bills of attainder, all depend upon this being a punishment.

Felix Frankfurter:

Well, that — that is more the good things on.

This — it can’t be ex post facto unless you overruled all the — the whole picture of (Inaudible) ex post facto merely involved in criminal statutes pursuable as a crime substitute of the Sixth Amendment.

John F . Davis:

That — that is — that’s right.

It has — this has to be a penal statute in order for —

Felix Frankfurter:

It’s not in the loose sense a penal statute.

John F . Davis:

But —

Felix Frankfurter:

And I don’t think that makes you smart or heard.

It has to be —

John F . Davis:

A punishment.

Felix Frankfurter:

— a punishment through this criminal proper.

John F . Davis:

That is right.

Hugo L. Black:

I thought the bills of attainder had to be a punishment, whatever that is, through the legislative process.

John F . Davis:

And that — that is right to it, but in any case, it has to be a punishment.

It has to be —

Hugo L. Black:

Depending on what you mean by punishment.

John F . Davis:

That is right.

Hugo L. Black:

The Government moving against you, forfeiting his rights.

John F . Davis:

The Government —

Felix Frankfurter:

That’s why ex post facto is different.

I didn’t say —

John F . Davis:

No.

Felix Frankfurter:

— bill of attainder.

I’m talking about ex post facto.

John F . Davis:

That — that has to be a criminal —

Felix Frankfurter:

I’m not referring (Inaudible) and not loose talk about punishment.

John F . Davis:

That — that is right.

But I don’t — in this particular case, I think the Government cannot support this Act if this is punishment.

I mean may — it won’t be ex post facto but you still have bills of attainder.

You still have the question of whether or not this due process of law to do it without — without a — a judicial trial —

Felix Frankfurter:

(Voice Overlap) —

John F . Davis:

— so — so that —

Hugo L. Black:

Do you remember — do you remember whether they referred to both ex post facto and bills of attainder in some of this case?

John F . Davis:

They — they’ve referred to the — to the bills of attainder, whether it’s ex post facto, I don’t remember.

Hugo L. Black:

I have read it (Inaudible)

John F . Davis:

I have read it but I’m sorry, I don’t remember whether they referred to ex post facto in the coming states.

I think they’re talking — they’re almost entirely talking about bills of attainder.

Now, the position that the Government takes really with respect to this particular Act is that Congress isn’t attempting to deter aliens from becoming members of the Communist Party.

It’s not attempting to exact retributive justice against these people for some wrong that they’ve done because —

Hugo L. Black:

What is — what it’s going to do then?

John F . Davis:

What it’s trying to do is to do a reasonable — make a reasonable apportionment of Social Security benefits.

It seems — it seems merely absurd to say that people should be sent out of this country because they’re not fit citizens — fit persons to reside here and told to live abroad.

And then the taxes which are imposed upon workers, part of these taxes is going to be used to support these people abroad.

Hugo L. Black:

But what —

John F . Davis:

This doesn’t seem to be an appropriate —

Hugo L. Black:

They’ve already — they’ve already paid tax.

John F . Davis:

They’ve paid taxes, yes.

But — as I — as I attempted to — to point out a minute ago, there is no direct connection between what amend — taxes amend — pays now and the Social Security benefits he’s going to receive when he retires.

William J. Brennan, Jr.:

Well, if that’s the reason though, Mr. Davis, namely, that Americans, resident home earning — they’re living here and paying these taxes if that’s what they are, whatnot have to pay them to contribute to support someone abroad.

Why doesn’t — why would they exclude the four classes they have to exclude as deportees?

John F . Davis:

Well, there’s — there are many people abroad who are entitled to — to receive Social Security benefits and it’s — that is a much broader statement than — than Congress is — it’s gone much — your — your statement of — it is much — gone much further in Congress so far has gone.

John F . Davis:

They — I think it’s a matter of congressional policy of how far they go.

In 1939, there were some part of Social Security benefits, shouldn’t be paid to aliens at all.

Social Security should be only for — for the citizens.

And in fact, they — it passed one of the Houses but then it was abandoned.

Hugo L. Black:

Were — were they required to pay taxes?

John F . Davis:

They wouldn’t if they’re not —

Hugo L. Black:

(Voice Overlap) —

John F . Davis:

— if that — if they’d been excluded from the System.

Hugo L. Black:

That requires an election.

John F . Davis:

But that was abandoned and aliens have until 1946 been treated as anybody else whether they — and residents abroad has had nothing to do with the — with the payments until this amendment in 1954.

And it seems to me that Congress cannot be said to have — enacting unreasonably or — or punitively when they determined that when a man is actually found to be an unfit person to live in this country and he’s told that he must go back home, that nevertheless, he’s going to be sort of a remittance man and he’s going to receive his — his check from the United States Government for himself so that he can live abroad in — in the style of which he has become accustomed here.

It just — it just doesn’t — Congress to Congress, this did not seem to make sense.

William J. Brennan, Jr.:

But in the second — in — they were the four excluding classes because —

John F . Davis:

And they excluded four classes.

Now —

William J. Brennan, Jr.:

And although they are unfit persons by that same testimony.

John F . Davis:

Now, I — this — this gives some trouble but I do not think it does — this particular appellant much good to say that these people should have their rights cut off too.

Their — the — these four cases were excluded and why they were excluded, I don’t know.

William J. Brennan, Jr.:

I was trying to get — I’m suggesting that the exclusion of the four cases rather undermined your — the argument you’re now giving.

John F . Davis:

Well, if — if this shows that it’s punishment, if you can get from these four cases that it is punishment, it does work against — against my argument.

But I suggest to you that two of the cases which are excluded are — are violations of law so that it’s not a — they’re not — it’s not just a question of their becoming public charges and it would be consistent to cut it off in that tax.

William J. Brennan, Jr.:

Actually, the one we have here, unlike the excluded — last excluded class which does, as you suggest, involve a violation of law.

From what you’re asking the Chief Justice before, the fact that this individual is a member of the Communist Party from 1933 to 1939, at that time, he was not guilty of any violation of the law.

John F . Davis:

That is — that is right.

Not as far as the membership and which is all that was either before this.

Hugo L. Black:

Are you arguing about reasonableness in connection with the interpretation of the statute on the basis of some constitutional provision which permits reasonable violation of the Constitution?

John F . Davis:

No.

I’m not suggesting unreasonable violation of the Constitution.

I’m suggesting that even though this is a privilege and can be given or withheld that the Government may not do this for a non sensible, for a — arbitrary reasons.

Maybe, I can draw a comparison between this privilege and the privilege of employment.

John F . Davis:

I mean, Government has a right —

Hugo L. Black:

But which constitutional provision are you relying on (Inaudible) are you answering?

John F . Davis:

Well, due — it’s — it’d be lack of due process if you are arbitrary, if you are arbitrary and unreasonable.

It might be lack of due process if you’re arbitrary and unreasonable in giving Social Security benefits to — well, suppose that you should give them to — to everybody except red-headed, take them away from all red-headed men of all people have gone on odd days of the months — month.

This is arbitrary and unreasonable and unreasonable and — and might be considered, therefore, to be lack of due process because if you’re going to give citizens — if you’re going to give people rights, you should do it on a — on a basis of equality and not pick and choose on an arbitrary basis.

I think an argument could be made that there’s no constitutional reason why you shouldn’t give the privileges to whom you want to and take them away from whomever you want to.

But I think that the sound of — a sound of you is that you’ve got to do it on some reasonable basis.

Earl Warren:

As I understand you to concede that this is a penalty (Inaudible) it would be unconstitutional.

John F . Davis:

Yes.

I think that if this is a penalty that it is — that — that the man is entitled to — to a trial before he’s taken away, he’s — and it would be considered to be a — a bill of attainder.

William O. Douglas:

Did you say they had offered him his money back?

John F . Davis:

Oh, no.

They don’t offer him his money back.

Here — there’s no money that — that he has paid in which is in anyway that he has any equity in.

William O. Douglas:

Well, that’s a question, I suppose.

John F . Davis:

Well, at least specifically under the statute, there isn’t any money that he has gotten.

This is to be distinguished, for example, from the several service retirement system where there is also a provision for forfeitures in certain cases.

And in that case, it isn’t a tax or — or at least a man builds up a credit to his account while he’s working for the Government.

And on that case, if they take it away, the — his money is — is given back to him, if it’s forfeited for the reasons that the statute provides for profit.

But that is to be distinguished from this situation where he isn’t building up specifically or under the statute anyway.

He’s not building up any credit to his own account.

Earl Warren:

He’s paying into?

John F . Davis:

He’s paying into — taxes to support the — the Social Security System.

Earl Warren:

Were they talking (Inaudible)

John F . Davis:

Well, it — he hopes that someone will pay him — in for him when his time comes and when he retires, but that’s a legislative matter, not a contractual matter.

And he has no choice about it just as any other tax.

The system is financed by a tax and this tax is placed on particular people.

William J. Brennan, Jr.:

Well, as a matter of fact, Mr. Davis, you haven’t mentioned his wife if she’s still receiving (Voice Overlap) —

John F . Davis:

She — she is a citizen —

William J. Brennan, Jr.:

— consummates of his payments.

John F . Davis:

That’s right.

She is a citizen and she is still here and she is receiving the wife’s — wife’s benefit at the present time.

William J. Brennan, Jr.:

And that’s by reason of his payment.

John F . Davis:

Of his payments.

That’s what — actually, as far as payments go if — if — I call your attention to Footnote 10 which appears —

William J. Brennan, Jr.:

That’s why I should have said by reason of his employment.

Your position is that his payments have nothing to do with it.

John F . Davis:

Well, as — if we were going to look at it as a trust fund, I call your attention to Footnote 10 on page 33.

On his employment record, he apparently would have paid in if all the taxes were paid, he would’ve paid in $116 in all.

And they have been paid back to him $611.60 and his wife has received — up to 1959 had received $1262.

So that, as far as — actually, if you’re going to consider his payments in what was going — got back, he’s — he and his wife would receive back what he himself has received back, five times what she paid in and his wife has received back another 10 times of what he paid.

Potter Stewart:

So in practical facts you would be — you — your answer to Mr. Justice Douglas could have been yes.

He has been paid back everything —

John F . Davis:

Well —

Potter Stewart:

— that he paid and more.

Is that right?

John F . Davis:

My answer could be that he has received in benefits more than he paid in taxes.

I wouldn’t say that he’s been paid back, because I think it’s a different matter.

William J. Brennan, Jr.:

Well, I think you told us a little earlier anyway that those who are covered under this program do not — individually have accounts — accounts with — with —

John F . Davis:

They — they have no —

William J. Brennan, Jr.:

(Inaudible)

John F . Davis:

— they have no financial account.

They —

William J. Brennan, Jr.:

(Voice Overlap) —

John F . Davis:

— have an employment account —

William J. Brennan, Jr.:

That’s all.

John F . Davis:

— because their payments, in order to qualify, they have to show employment in covered industries.

And —

Felix Frankfurter:

They have a beneficiary (Inaudible)

John F . Davis:

They have hours of — they have —

Felix Frankfurter:

(Inaudible)

John F . Davis:

Oh, yes.

William J. Brennan, Jr.:

(Voice Overlap) the case —

John F . Davis:

Well, that — when they qualify, I don’t know what kind of accounts they keep when they begin to pay them the money.

Felix Frankfurter:

(Inaudible)

John F . Davis:

What — what happens in bookkeeping is that the Social Security Administration, I think in Baltimore, maintains a record of quarters of covered employment for an individual.

When a man reaches 65, which is the age when he is entitled to qualify, he files an application for Social Security benefits and he gives his Social Security number and tells that he’s no longer employed of his age and so forth to show that he’s qualified.

They give him a certificate of qualification or something at that time showing how much he is entitled to on the basis of his — of their records of his employment, the number of quarters and the — and the amount he’s been paid as wages.

None of this tied in, mind you, to the amount of tax he’s paid because it doesn’t make any difference whether the tax has been paid or not.

This is done on hours of — of quarters of employment.

Felix Frankfurter:

Is it a question that Congress continued the whole enactment?

John F . Davis:

I don’t — I don’t think there’s any question of it at all.

Felix Frankfurter:

Now, what would — is it then clear that if Congress repeals the whole legislation, it would have to distribute the requirements that have accumulated among those — up to the basis for to repeal or beneficiaries to be added?

John F . Davis:

I do not think those — those funds would go to the — to the — I don’t know what would happen to them.

I think Congress would have to dispose of them.

Felix Frankfurter:

(Voice Overlap) —

John F . Davis:

Pardon.

Felix Frankfurter:

I should think Congress would do the finding of its (Voice Overlap) —

John F . Davis:

That’s right, but I don’t think it would be under any obligation to pay it all.

Hugo L. Black:

Suppose this case of the law — of that statute would have any question of the bill of attainder or doing something that would furnish all of it.

John F . Davis:

That’s right.

You have no question of punishment.

That’s the distinction I draw between the general power to amend or abolish and whether or not this particular action is an appropriate exercise of that power.

And I think they’re two different questions —

Felix Frankfurter:

My — my question is directed to trying to ascertain what the nature of this whole scheme is.

John F . Davis:

Yes.

Felix Frankfurter:

And whether (Inaudible) mandamus of Congress to pass an appropriation act whether if he wanted moral obligations could be the basis of (Inaudible) or — or if it’s a forfeiture, whether you pursue it under implied constructions that is — is a deprivation process without confiscations.

John F . Davis:

And I’m —

Felix Frankfurter:

I can’t imagine it would.

John F . Davis:

I can’t believe it would in — with either of those.

Earl Warren:

It seems to me there’s some difference between Congress’ stand in the whole scheme on the one hand and on the other hand (Inaudible) to prove as — as it seems as to whether it could, well, take away their purpose.

Now, let’s just assume for the moment that this man is not an alien.

Let’s suppose, this man is a citizen and the Congress said, “Well, you don’t want me to (Inaudible)

And if they do, we would deprive them of their Social Security benefits.”

Can we do that?

John F . Davis:

I would think not.

I would think that would be a punishment.

But I would think they could say, “We have decided that farmers are no longer appropriately covered by Social Security.

We’ll take care of them in some other way and we’ll cut off all the Social Security benefits for farmers,” all lawyers.

Earl Warren:

Yes, but that (Inaudible)

John F . Davis:

Well, even if they didn’t take care.

Suppose they said, it’s worked out badly to have lawyers under Social Security.

We haven’t been able to honor their books properly [Laughs] or something.

So —

William J. Brennan, Jr.:

Use — use some other professions.

[Laughter]

John F . Davis:

Dentist.

[Laughs]

Earl Warren:

Lawyers will [Laughter].

Let’s take with — the situation where — where the Congress is taking away the benefits because of — of (Inaudible) considering this consequence.

John F . Davis:

Well, if it were —

Earl Warren:

Now, Congress has undoubtedly considered along the Communist Party as this (Inaudible) at some time because it — it made the basis for — for deportation and then the (Inaudible) working out of the deportation as before Congress (Inaudible) provided that they should take away from all system (Inaudible) the man was a citizen.

John F . Davis:

Well, if they did it on the grounds that the man was a Communist or that he had violated the Smith Act or something like that I would — I would feel that this was a punishment.

But here, what they have done is to say, “Aliens who are deported, who are sent out of the country, who are no longer part of our society.”

Earl Warren:

Yes.

John F . Davis:

And they took almost all of them, the — the four classes that Justice Brennan and I have difficulty with that they didn’t take out of it.

But they took 14 out of the 18 classes and said, “As to those, it’s no longer appropriate that they should receive it.”

And it seems to me that this is a — a matter of judgment as to whether these are generally the kind of people that — the kind of class that falls within the Social Security System.

It seems to me not difficult more — not different from this situation.

If the Social Security System should say, “Self-employed people who are gamblers keep very bad records and we are having a great deal of difficulty finding out what the Social Security benefits of gamblers shall be.”

John F . Davis:

And therefore, we’re going to change our law and we’re going to say that gamblers get no Social Security benefits.

Anyone who’s — who’s self-employed income comes from gambling.

Now, this isn’t to punish gambling.

This is because they feel it’s inappropriate part of — it doesn’t work well in the Social — in the Social Security sense.

Earl Warren:

Well, I can see that what the district is to (Inaudible)

Now, let’s suppose that there — there is and to say it (Inaudible) forfeiture under exactly the same condition (Inaudible) and they go back to the same (Inaudible) wouldn’t the same person be cut off?

John F . Davis:

Not if he were public charge.

Not if he was institutionalized as a public charge.

Earl Warren:

Well, let’s say he — you say, if he was a public charge (Inaudible)

John F . Davis:

No.

Here, if he was deported, the — the ground for deportation in Section 3 is if he becomes institutionalized as a public charge.

Earl Warren:

(Inaudible) does he lose his (Voice Overlap) —

John F . Davis:

No, that man retains it.

Earl Warren:

He lives along — he lives alongside to this man —

John F . Davis:

That’s right.

Earl Warren:

(Inaudible)

John F . Davis:

Well, that’s — that’s the — one possible basis.

The other possible basis is that these people have been here only less than five years.

It’s a good —

Earl Warren:

(Voice Overlap) —

John F . Davis:

Well, the — but in order to keep his benefits, he has to have been — he can’t be deported unless it’s within the first five years that forbids.

That’s right.

This is one of these things that happened earlier.

And Congress said, “As to these people, it’s — it’s not important enough or we don’t want to impose the duty on foreign countries to take care of them.

If we were going to deport them, that’s enough.

And so, we don’t want to impose the duty on foreign country to have,” maybe they thought it would be difficult to find some place to send them that he was going to be charge abroad and they felt they’d have to support him in order to find some place for him to go.

There are a number of explanations.

Earl Warren:

(Inaudible)

John F . Davis:

And he may have paid very large income taxes too.

And he is deprived to those rights too.

Earl Warren:

What rights?

John F . Davis:

Whatever rights he has as a resident of the United States, rights for his children to go to school and for — all the rights which people have that the Government finances.

I’ll reserve the rest of my time, if I may, for rebuttal.

Felix Frankfurter:

Could you tell me the ground which (Inaudible) in the Second Circuit denaturalized as (Inaudible)

Do you happen to know?

I don’t suppose you (Inaudible)

John F . Davis:

No, I — I can’t —

Tom C. Clark:

Part of the basis, wasn’t it?

John F . Davis:

Pardon?

Tom C. Clark:

Part of the basis, wasn’t it, that he claim that he is doing a certain — in a certain (Inaudible).

Felix Frankfurter:

(Voice Overlap) —

John F . Davis:

I don’t think that’s the basis —

Felix Frankfurter:

(Inaudible) of having Social Security at all.

John F . Davis:

I’ll thinking about it during the —

Felix Frankfurter:

All right.

John F . Davis:

— before I stand on.

Tom C. Clark:

I thought it (Inaudible)4

John F . Davis:

By the time, he was naturalized, I believe.

William J. Brennan, Jr.:

Yes.

For fraud.

John F . Davis:

And — and it’s a basis for fraud in the naturalization.

Earl Warren:

Mr. Rein.

David Rein:

I think it’s clear on the basis of the argument made as far by Mr. Davis that there’s really no disagreement between the Government and myself as to the legal principles controlled here.

The disagreement, if any, is what is the nature of the particular statute that is before this Court.

The Government agrees, and it’s basically our position that if this statute is anyway a penalty and if it doesn’t constitute a reasonable regulation of Social Security rights within the ambit of the Social Security program, then the statute is unconstitutional.

Felix Frankfurter:

Is there — does the word “penalty” occur in the United States Constitution?

David Rein:

I don’t know of any place.

Felix Frankfurter:

(Inaudible) provisions relating to penalty in the sense (Inaudible)

David Rein:

In the sense which I used it —

Felix Frankfurter:

(Voice Overlap) but I don’t know about penalties.

Felix Frankfurter:

Is there anything in the Constitution of the United States that deals with procedural requirements of obtaining what as you call as penalty?

David Rein:

Yes.

Felix Frankfurter:

Just tell me about it, which one?

Well, I — I want the word “penalty”.

I want the provision that uses the word “penalty”.

David Rein:

I don’t know of any that uses the word “penalty” but the Court has used that word in Wong Wing against the United States.

It says that anything that inflicts a penalty without a judicial trial is unconstitutional —

Felix Frankfurter:

I know.

David Rein:

— a violation of Article III, Section 2 in the Sixth Amendment.

Felix Frankfurter:

(Inaudible) would rather go back to the Constitution, when you’re talking about constitutional problems.

David Rein:

Well, I’m sorry, I’m not prepared to say what provision where the Article III, Section 2 and where the Sixth Amendment actually uses the word “penalty”.

And what it is that provide, you must have a judicial trial before it could be done to you.

But I think it says “punishment”, I’m not sure.

Felix Frankfurter:

(Inaudible)

David Rein:

Well, I made no distinction here, and I’d be gratefully —

Felix Frankfurter:

(Voice Overlap) —

David Rein:

— willing to use the words “punishment” rather than “penalty”.

Felix Frankfurter:

(Voice Overlap) the Constitution of United States might.

Earl Warren:

(Inaudible)

David Rein:

No.

They equate penalty with punishment.

I don’t think they make any distinction.

Felix Frankfurter:

I suppose — I suppose (Inaudible) I must take the Government’s statement of what the law is (Inaudible)

David Rein:

However, presuming, and as I say, we are in agreement here.

At least the Government and I are in agreement here that if this statute imposes punishment and it inflicts a penalty, it is not a reasonable regulation of Social Security benefits, it would be unconstitutional.

The Government, however, is not here given any further explanation for the passage of the statute by Congress at all.

As a matter of fact, the only explanation it has given is only consistent with punishment.

It is said, and Mr. Davis said that the only thing he could believe the statute would have is the view of Congress that certain people being deported were unfit and therefore should not receive benefits.

Now, to my view, that would clearly indicate that Congress thought that these people should be punished because they were unfit.

But we need not rely simply on Mr. Davis’ statement.

David Rein:

I think it would be helpful to see exactly what it was that Congress did here.

And what it was that Congress said about this particular statute.

Could I ask you one question?

Is the Government correct in saying that you don’t attempt to defend the decision below on the grounds on which he was put to with vesting right?

David Rein:

I do not.

I think that there are too many cases in this Court indicating that Congress has power to amend and that the States have power to amend Social Security System, and I could not say that Congress did not have power to amend it at all on that theory.

Felix Frankfurter:

(Inaudible) by that remark (Inaudible) that’s my side of the equation.

(Inaudible) have more trouble with (Inaudible)

David Rein:

Well, I —

Felix Frankfurter:

(Voice Overlap) I’m not —

David Rein:

I have examined —

Felix Frankfurter:

(Voice Overlap) —

David Rein:

— the cases and I don’t think Lynch applies.

But Section 202 (n) was enacted in 1954.

It grew out of the bill which was H.R. 9366 which was reported to the 83rd Congress by the House Ways and Means Committee.

That particular bill had three provisions which I think are relevant here.

One provision attempted to do something along the lines, which Mr. Davis has indicated here, might be reasonable.

That is — or keep benefits away from aliens who are not within the United States.

That was a bill which would deny benefits, not to the primary beneficiaries themselves, not to the workers themselves, but to certain dependents or survivors of beneficiaries who reside outside the United States if they do not meet certain residence requirements.

Now, in proposing that bill, Congress said, and this was not Congress but the House which proposed that bill.

Under a heading in its report, and we set forth and quoted at page 19 to 20, “Under present law, old-age insurance benefits had been paid to an insured worker regardless of his country of residence.

Benefits are also payable to otherwise eligible dependents and survivors of insured individuals regardless of country of residence even though such dependents and survivors may never have lived in the United States and may have had no personal contact with the insured worker over a long period of years other than receiving contributions to their support.”

And then the Committee went on to say, “Your Committee believes that the insured person himself, who has earned his right to benefits on the basis of his work in American Industry and his contribution to the national economy should be able to have those benefits regardless of his place of residence.”

In other words, the only suggestion made here that I have heard, and Mr. Davis didn’t make it as strong as the Government did in his brief, was that 202 (n) was part of a policy of Congress to deprive aliens, nonresident in this country, of benefits.

And yet here, we find the same Congress, House which proposed 202 (n) saying that it never had such intention.

And as a matter of fact, any such provision would be unwise and unjust.

Hugo L. Black:

Where are you reading from now?

David Rein:

I was reading from my brief 19 to 20, quoting from House Report Number 1698, which accompany or the bill, H.R. 9366, which became — later became the 202 (n).

The same bill, however, contain a provision which later became 202 (n).

And in discussing that provision, Congress did not put it under a heading, “Payment of benefits to persons residing abroad.”

David Rein:

On the contrary, they discussed it in its report under a heading “Termination of benefits on deportation.”

And, and I’m reading now from page 21 as to what the House said with regard to that, the House said that the bill provides that all benefits payable on the earnings record of an individual who was deported from the United States because of illegal entry, conviction of a crime or subversive activity shall be terminated.

Termination of the benefit would be effective upon receipt of a notice from the Attorney General that the individual is under notice of deportation.

Now, when this bill got to the Senate, the Senate rejected this provision and also another provision which contained a penalty provision by denying benefits for earnings for aliens who might have been in the country unlawfully.

The Senate rejected all three of those provisions but it, like the House, considered only the first provision, the one that will take away benefits from dependents and survivors abroad to have anything to do with the policy of making payments to people who are out of the country.

And it said with regard to that in the Senate Report and it’s quoted at page 22, “That the House approved bill would have prohibited the payment of dependents and survivors’ benefits to individuals residing outside the United States unless such individuals met certain requirements as to prior residence in the United States or a less special insured status requirements were met by the worker on whose records the benefits are payable.

Your Committee does not believe the place of residence of the dependents or survivors of an insured worker should result in their losing protection to which they are otherwise entitled as a result of contributions paid by the insured worker.”

That was the Senate’s view with regard to the question of paying benefits to people abroad and outside the country.

Turning to this provision, which later became 202 (n), the Senate said, “The House approved bill would have required that no monthly benefits be paid on the basis of wages and self-employment income of an individual who has been deported for specified causes.

Your Committee has not had an opportunity to give sufficient study to all the possible implications of this provision which involves termination of benefit rights under the contributory program of Old-age & Survivors Insurance and has therefore deleted this provision from the bill.

Now, I think these conclusions appear from this short sketch of the legislative history, and I’ll — our finding, I should say, that in conference, the House receded with regard to the provision depriving dependents and survivors abroad of benefits.

The Senate receded in their objection to the provision which later became 202 (n).

Though with certain modifications, the provision in the house bill was then passed.

Now, I think that these conclusions appear from this short sketch.

In the first place, Section 202 (n) was not considered by either House of Congress to be — have any bearing with regard to a congressional policy of withholding the payment of benefits to aliens residing abroad.

On the contrary, the House Committee that first suggested 202 (n) explicitly stated that it rejected such a policy.

The Senate rejected even a partial application of such a policy.

The House agreed and we have no such policy at all adopted in this provision.

Both Houses, however, considered that Section 202 (n) were penal in character, and they said so in so many words because — and Mr. Davis has had a great deal of difficultly distinguishing perhaps between the four provisions of the deportation statute which were omitted from those who were deprived benefits and those provisions which were included.

But the House made its distinction.

We don’t have to go any further.

It said that — the House of the Senate said that, “Benefits are terminated of — for those individuals who have been deported for unlawful entry, conviction of a crime or subversive activities.”

They thought that that group included all those and clearly, these have moral connotations and the distinction was made on the basis of congressional view of moral guilt.

Now, as a matter of fact, the original defendant in this case, Secretary Folsom, the predecessor of the — for the present defendant, also considered this provision to be a penalty in so many words.

He was asked to testify with respect to a subsequent provision, which, I think, Mr. Davis has mentioned which was being considered by Congress in 1955 which would make a penalty of deprivation of Social Security benefits, an additional penalty to be added on to criminal penalties to those who are punished under the Smith Act and other crimes which Congress considered in that category.

Testifying on that provision, Secretary Folsom opposing the provision, and he opposed it on this ground.

He says, “Because the deprivation of benefits, as provided in the amendment, is in the nature of a penalty and based on the considerations foreign to the objectives and provisions of the old-age and survivors insurance program, the amendment may well serve as a precedent for extension of similar provisions to other public programs and to other crimes.”

And then he went on to say, “The present law recognizes only three narrowly limited exceptions to the basic principle, the benefits are paid without regard to the attitudes, opinions, behavior or personal characteristics of the individual.”

And he included in those three narrowly limited exceptions this provision 202 (n) which Congress had passed.

The other two he mentioned which he said considered to be of a light category, were not a statute of Congress but a regulation of the Social Security Administration itself which denied dependents benefit payments to any individual who have been found guilty of the felonious homicide of the insured worker.

David Rein:

And also said other provisions are not of the Social Security Act but of Title 5, that is the provision giving government employee pensions, the so-called Act which was passed — the Act so-called Hiss Act which was passed by Congress relating to government employees, denying pensions to government employees who, among other things, have pleaded their privilege against self-incrimination.

A portion of the statute which was held unconstitutional in the Court of Claims was not taken to this Court.

Felix Frankfurter:

(Inaudible)

David Rein:

In other words —

Felix Frankfurter:

Suppose the security (Inaudible) they make the — the divisions in 14 — the present 14 (s) (4).

David Rein:

Which proposal?

I’m sorry.

Felix Frankfurter:

(Inaudible)

David Rein:

The proposal —

Felix Frankfurter:

The discussion appeal which Secretary (Inaudible) opposed.

David Rein:

Secretary Folsom, that was a different bill.

Felix Frankfurter:

Yes, I know.

But that may —

David Rein:

It has nothing to do with deportations.

It had to do with penalizing.

This bill came up after the present 202 (n) had been passed.

And the proposal in this bill was to commit — this will apply not to aliens but to citizens who were convicted of certain crimes, who might be convicted of certain crimes such as the Smith Act and other crimes.

Felix Frankfurter:

I thought that Secretary Folsom spoke against that it became a precedence.

David Rein:

No.

Felix Frankfurter:

I suppose —

David Rein:

I’m saying that —

Felix Frankfurter:

(Voice Overlap) —

David Rein:

— in speaking against this bill, this particular bill –-

William J. Brennan, Jr.:

That subdivision used.

David Rein:

— which he called a penalty.

Yes.

He analogized it to 202 (n) and he said, “The only provision in the law which we have now analogous to this bill —

Felix Frankfurter:

Is the one that begins —

David Rein:

— which — which is the one which is before us at the present time.

In other words, he, although two years later, described specifically this particular bill as being a penalty.

Felix Frankfurter:

Well, that’s the course of your argument.

David Rein:

That’s the course.

Yes.

Felix Frankfurter:

I thought that he opposed —

David Rein:

Yes.

And that he said —

Felix Frankfurter:

— to you — when the measurement was up and whenever it was in the (Inaudible)

David Rein:

He did not appear and testified at that time with respect to it, no.

But he described it as a penalty in his testimony a few years later.

Now, the Government in arguing that the statute here is not a penalty, in arguing in its brief, makes the point that it’s not the question and some emphasis has been made here by Mr. Davis that the point is that the alien is no longer in the United States.

He’s abroad, and why should we make payments to him while he’s abroad?

However, the important thing is that if this same alien had left the country, had gone abroad on his own volition, exactly where he was, he would receive Social Security benefits under the present law.

So the factor here is not that he’s abroad but the factor is that he has been deported.

That is the significant difference.

Charles E. Whittaker:

Would there be, Mr. Rein, a limitation on the period of his receipt of such social security if he had voluntarily departed?

David Rein:

None at all.

Charles E. Whittaker:

No period of limitation.

David Rein:

No period, he would retain it forever.

There is — was a subsequent statute which was passed in 1956 which has never been construed by any court, which did take away benefits from certain aliens who departed — left the country and been away for more than six months.

But only to those aliens who had not been in the United States with an aggregate of 10 years in the first place, or who did not have full coverage under the Social Security Act.

In other words, there is a present provision which is 202 (t) which does take away benefits from certain aliens.

The particular petitioner here would not fall on that category because he had been in the United States for more than 10 years and he had the necessary coverage under the Social Security Act.

So — and for this category of people, such as the aliens, the significant factor is deportation.

And the law — and under the laws that presently stands, if he were abroad, under — on his own volition without deportation, he would continue to draw Social Security benefits until his death.

So, we argue, therefore, from this that there isn’t any policy here of keeping the money in the country and not sending it abroad because Congress has enacted such a policy.

And in fact, the money would be sent abroad to aliens in the same category as the petitioner here except for the fact of deportation.

I think too, and the Government concedes that — that the statute would be invalid if the deprivation of benefits were based upon or the fact of antecedent factors and the Governments were criminal or other socially undesirable conduct because the Government concedes that under the same scheme of Social Security or the conduct of an individual and his behavior in the language, which was used by Secretary Folsom in testifying before the Senate Finance Committee, has no legitimate bearing upon receipt of benefits.

Yet, under 202 (n), one cannot escape the conclusion that that is precisely — are the basis upon which benefits are being deprived to certain class of deportees.

I have already quoted to the Court the language used by the House and the Senate Committee.

Illegal that the — of — deprivation of benefits are based upon deportation where the deportation is in turn based upon illegal entry, conviction of a crime or subversive activity.

David Rein:

Now, the Government in its original opposition that its original jurisdictional statement which was filed in this Court at — when it was first looking at the statute, I believe, without the problems being presented as to how it could defend it, didn’t have the difficulty Mr. Davis had here of distinguishing between the different characteristics of deportation.

And I think and I like to quote from the provision of the jurisdictional statement because I think it’s obvious.

And the Government there suggested that the four excluded provisions do not fall into that category.

That is the category of unlawful entry, conviction of a crime or subversive activity and may have been excluded because Congress thought they did not involve serious derelictions.

I think that it is perfectly clear both from the language of the reports of the Senate and the House in describing the position and also on the basis of analysis of the provisions themselves that the distinction Congress was making between certain grounds for deportation and certain other grounds of deportation were distinctions relating to moral conduct, and ideas which have definitely, a punitive aspect.

In that sense, the Section clearly specifies or offenses for which a person is then being guilty and for which retribution is exacted.

I think one must clearly look at 202 (n) and one cannot without it in any other way.

And it sets forth the certain categories or grounds for deportation listed in the Immigration Nationality Act.

And it says that, “Individuals who have been found guilty not by any criminal case but in an administrative proceeding of those offenses for which they are deported, they shall then suffer the penalty and the punishment of being deprived of their Social Security benefits.”

I think finally, we must consider the statute to be a penalty and punitive in character under the analysis which was made by this Court in the Trop case.

That whenever a statute comes before this Court, and it — and it has consequences which appear to deprive one of a privilege or ceratin other benefits, and then if the Court cannot find any legitimate legislative purpose for that deprivation of benefits, the only conclusion that the Court can come to is that — or the statute is being imposed as a penalty and his punishment.

And in the language of the Trop case, the Court there said that that statute was punishment because there is no other legitimate purpose the statute can search.

Supposing the statute, it said that Congress doesn’t want the money of the United States taxpayers to be used to support people living abroad who have been guilty of this kind of offenses — deported with this kind of offenses, what would you say about the statute if it has been so phrased?

David Rein:

I’d it’s exactly the same —

Exactly the same thing.

David Rein:

— as we have now.

And that’s practically what Congress said.

Do you think it’s unconstitutional for Congress to say that they don’t want to use United States funds to officially has been — has been deported because he’s a member of the Communist Party?

David Rein:

Well, I think it’s unconstitutional for Congress to impose a penalty on anybody unless —

Why you keep using the word “penalty” —

David Rein:

— or punishment.

— if it was used —

David Rein:

Well, I think taking away benefit —

Certainly, the way I have phrased the statute that I’m talking about, it would not be phrased in terms of a penalty.

David Rein:

Well, Your Honor used the word “guilt”.

— the terms of policy, policy.

David Rein:

Well —

As a matter of policy, Congress doesn’t want American money to be used for that kind — in — in that kind of a context.

David Rein:

Your Honor used the — the term “guilt” and I — perhaps I assumed punishment goes with guilt.

And that would be the connotation that Congress had.

I said who was been deported for being a member of the Communist Party.

David Rein:

Well —

Do you think —

David Rein:

I think that that would have to be analyzed.

It certainly is not consistent with the general purposes of the Social Security program which is being administered here without regard to — no one who is in the United States gets deprived or accepted as other statute, gets deprived of Social Security for conviction of crime.

Once you get to the point, the way you were taking away a privilege and you were doing it in a form where it involves an imposition of punishment, which, I think, you must say, that this statute does and I think that Your Honor’s statute would do because again, to say that you take away something from somebody because of his conduct, you are saying that you are punishing him.

I can’t see any other way around, unless one would say that there is certain — the only distinction would be, you might say that a person and the distinction which have been made in the case of his — that he might not be entitled to hold certain public office, let us say, because of that because he is not fit for that.

But you can’t say he’s not fit to receive money.

We don’t have any sense of — his conduct incapacitated him from acquiring some function or job so it must be considered punishment.

And if it is punishment, we need go no further in this case as to whether it’s a desirable punishment or a policy punishment because if it is punishment, it cannot be inflicted without a judicial trial.

I think that’s the — the main constitutional problem we have in this case.

And in that respect, this case is no different than the Wong Wing case which —

Charles E. Whittaker:

But, Mr. Rein, I’m not sure I follow.

I understood you a while ago to say at the beginning of your argument that you do not contest the Government’s contention that your client had no vested right in benefits under this law.

Did I correctly I understand you to say then?

David Rein:

Well, I did not contest that and perhaps I’d better put it this way.

I think the question of whether or not, as it’s sometimes discussed in cases of this kind, as to whether or not this is a vested right or a gratuity is not a worthwhile issue to get into.

I think he has a right which the Government concedes and we both concede that his right is sufficiently valuable that it cannot be taken away from him in violation of certain other constitutional provisions.

Charles E. Whittaker:

Well, then, I misunderstood you in another context then.

I understood you also to say that you agreed that the Congress could amend and change whatever rights or might be a part of some of the law.

Is that the — I misunderstand you there?

David Rein:

I said Congress has the right to amend the law reasonably.

I don’t say it can amend in any way.

Charles E. Whittaker:

And then would you follow from that when it’s unreasonable to amend in such manner as would relieve the obligation to make payment to a deportee that’s unreasonable, is that your argument?

David Rein:

It has no — well, there are two grounds, I would say, with that.

It has no rational relationship to the general purposes of Social Security.

And this particular statute was not passed although it’s labeled an amendment to the Social Security Act.

It was not passed within the framework of Social Security legislation.

It was passed for an entirely different reason for the purposes of punishment.

And therefore, we get into certain other factors.

David Rein:

Just as, for example, Congress also laid in to get an amendment to the Social Security Act, there’s another provision saying people convicted of certain crimes can, in addition to getting a prison sentence, be deprived of their Social Security benefits.

Charles E. Whittaker:

We do not follow that if your client had no vested right or Congress could change whatever right was vested, then an exercise by Congress of either alternative in respect to the deportee would not be punishment?

David Rein:

No.

Not at all.

Charles E. Whittaker:

It is not?

David Rein:

Not at all.

He’s being deprived of certain substantial benefits.

Charles E. Whittaker:

Well, I wonder if he’s deprived if you admit that the Congress has the power to make these changes.

That was my point about it.

David Rein:

No, the fact that Congress has the power to make these changes doesn’t make it any less punishment.

That has nothing to do with it.

In other words — first place, I don’t say Congress has the power to make this particular change but the fact that Congress may take away certain benefits.

For example, Congress may punish, that is true, provided it does it in the constitutional fashion.

Of course, Congress may punish if that’s what it intends to do.

Congress may also take away benefits if it is done —

Charles E. Whittaker:

I was thinking —

David Rein:

— within the framework of the Social Security Act.

But I don’t think it advances the argument to say that because he has not — does not have a vested right, it is not punishment.

One does not have a vested right, let us say, to be a member of the Board or to — to get into certain professions, yet, it was held to be punishment in Cummings against Missouri to deprive one of that privilege.

Charles E. Whittaker:

Now, if that’s a right, he — what I have trouble understanding is how one can be punished by being deprived of the so-called — some thing he never had.

David Rein:

Well, this man was drawing Social Security.

Charles E. Whittaker:

As long as he was not a deportee.

David Rein:

Yes.

Charles E. Whittaker:

And Congress —

David Rein:

He was —

Charles E. Whittaker:

(Voice Overlap) but when you become a deportee, then you shall no longer be paying.

And the Congress has the right to make that change in status or not.

David Rein:

Well, I don’t follow you because when Congress made that change, it was taking away from him something which he had.

Now, I don’t think it matters if you’re going to say that it’s a right, it’s a privilege.

I think that it’s a semantic use of language that advances us not at all because I know that Congress took away from this man his $60 a month which he was getting.

David Rein:

Now, I don’t want to concede that by saying that it is not a vested right in a sense that by conceding that he did not have a formal contract with Congress, which could not be amended that, therefore, when Congress took away the $60 a month, they did not take something away from him.

They took away $60 a month.

There’s any question about that.

And I think that that’s substantial enough in interest, if I may put it that way, substantial enough in interest to bring into play these constitutional questions that follow from the imposition of a penalty.

I don’t really understand if there’s any basic difference between you and the Government as to what you think the controlling principles are here —

David Rein:

That is correct.

I —

— where you split it as to the significance of —

David Rein:

Nature of this particular statute.

Yes.

David Rein:

And I think that that’s the — that would be true.

We both adopt the same basic legal approach and constitutional approach as to how the statute should be measured and what the principles are that should measure the statute, and our sole difference as to what is the nature of the particular statute.

Felix Frankfurter:

And also, what difference has it got as to what is due process or if it could have paid him.

Is that the — it has to be used about that in (Inaudible) unreasonable, unreasonable if it’s constitutional infirmity except in the loose way of talking with reference to — to the Due Process Clause because (Inaudible) with the Constitution and I say this is unreasonable in the — in the layman sense of the term.

Is that true?

David Rein:

Yes.

Felix Frankfurter:

(Voice Overlap) —

David Rein:

I do hang it on a number of provisions because —

Felix Frankfurter:

(Inaudible) the Constitution.

David Rein:

I invoke —

Felix Frankfurter:

(Inaudible)

David Rein:

— for the —

Felix Frankfurter:

— the argument, because I’m concerned, namely, ex post facto because it applies (Inaudible) of the First and Sixth Amendment.

David Rein:

I —

Felix Frankfurter:

(Inaudible)

David Rein:

If I may just say a word on that — that that this Court has not taken that view of the ex post facto statute.

Felix Frankfurter:

It hasn’t —

David Rein:

No.

Felix Frankfurter:

— it has opinions for a hundred years beginning (Inaudible)

David Rein:

Cummings against Missouri relied upon the ex post facto clause, so did Ex parte Garland, and quite recently, in this Court, the Garner case and the American Communications Association against Douds discussed the statutes.

David Rein:

They said those particular statutes were not ex post facto because they did not operate retroactively.

But they both assumed that civil penalties were ex post facto.

Felix Frankfurter:

The — this is about the — this Court has read it down, an ex post facto (Inaudible) go for technical but lawyers understand that criminal (Inaudible)

William O. Douglas:

I think it’d be more to say there are some members of the Court who felt that, but I think that you’re quite right in your exegesis of Cumming’s case and the Garland case.

David Rein:

Well —

William O. Douglas:

Whether that would be — whether they would be effective today, does not matter.

David Rein:

I only know what the case has said, and what —

Felix Frankfurter:

I think the Lovett is — is exquisitely —

William O. Douglas:

That was a —

Felix Frankfurter:

It’s part of the ex post facto.

William O. Douglas:

That is a bill of attainder case though.

Felix Frankfurter:

(Inaudible)

William O. Douglas:

Except for the Cummings and Garland cases.

Felix Frankfurter:

They rested on — on bills of attainder.

William O. Douglas:

And ex post facto.

I think they were — I think you’re quite right, counsel, there were two grounds for those —

Felix Frankfurter:

(Inaudible)

David Rein:

Well, I don’t — I don’t really rely on that and —

(Voice Overlap) as to that.

[Laughter]

David Rein:

The principal ground on which I rely, and the principal constitutional provision is Article III, Section 2 in the Sixth Amendment on the ground that you cannot inflict punishment without a judicial trial.

Felix Frankfurter:

(Inaudible)

David Rein:

Article III, Section 2 says exactly that, I believe.

I don’t have the precise language, but it says you must have a judicial trial.

Felix Frankfurter:

(Inaudible)

David Rein:

Well, if I may submit to Your Honor, the case that I think is controlling on this statute is the case of Wong Wing against the United States.

That is the case in which a statute passed by Congress provided that an alien — an alien who is being deported on the ground of having been illegally here as a Chinese could, prior to deportation, be imprisoned on the ground of having been unlawful resident in the United States.

The whole process was done administratively.

This case came up after the case of Fong Yue Ting in which the Court had sustained the portion of the statute providing for the deportation of the alien by the administrative process.

But the Court said that the added feature of the Wong Wing statute that is the imprisonment of the alien made it unconstitutional.

David Rein:

And the Court there said, I think it will be useful to quote, page 35 to 36, it’s quoted in my brief.

“We regard it as settled by our previous decisions that the United States can, as a matter of public policy by congressional enactment, forbid aliens or classes of aliens from coming within their borders and expel aliens or classes of aliens from their territory.

And can in order to make effectual such decree of exclusion or expulsion to devolve the power and duty of identifying and arresting the persons included in such decree and causing their deportation upon executive or subordinate officials.

But when Congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment of hard labor or by confiscating their property, we think such legislation to be valid.

It must provide for a judicial trial to establish the guilt of the accused.

Charles E. Whittaker:

That’s just the question I was trying to set up, Mr. Rein.

Is this stipulated amount to be paid under Social Security property in the sense of — used by the Court, District Court?

David Rein:

I would contend that it is, yes.

And I do not want to say that I think that Congress can amend the statute to be a concession in that respect, it certainly is property.

I consider that $60 a month is property.

Charles E. Whittaker:

And if Congress has the right to change the law, as I understood you, and Mr. Davis to agree, then you certainly didn’t have property in — in a vested sense, do you?

David Rein:

Well, I don’t think that that’s the answer.

If Congress has right to change the law, that mean that Congress would have the right to take away under certain circumstances this property from certain other individuals.

Charles E. Whittaker:

Do you think it’s —

David Rein:

But it doesn’t make it any less property.

Charles E. Whittaker:

Do you think it’s — then — then the right to receive this monthly stipend stands in your view in about the same status as a house and lot to the — on Washington?

David Rein:

Well, yes.

I don’t think it makes any difference, what the nature of the property is or what the nature of the privilege is so that —

Charles E. Whittaker:

But —

David Rein:

— you have to say it’s vested or not.

Charles E. Whittaker:

And Congress couldn’t take the house and lot by changing some law.

That would have to be unjust compensation if he had a vested property like that.

David Rein:

Well, Congress might give someone a house and lot on the provisions which had said they could take it away on a certain other — other circumstances and not under others.

Perhaps this may — may help, Your Honor, to have my view on it.

Charles E. Whittaker:

Yes.

David Rein:

Suppose Congress gave someone a house and lot under a statute which said, “Congress can take this away for reason A and B but not for reason C and D.”

Charles E. Whittaker:

Yes.

David Rein:

Now, the fact that Congress can take that property away from him for reason A and B, doesn’t make it any less property.

It still can’t take it away from him for reason C and D.

And if Congress attempts to take it away from him for reasons C and D, he is protected against Congress in that respect.

David Rein:

However, he is not protected against Congress if Congress takes it away for reasons A and B, which Congress provided well reasons it could take it away.

Charles E. Whittaker:

And if Congress did take it away for reasons A and B, so dong would not be punishment.

I take it you would agree for.

David Rein:

Yes, if it was so provided and if it was so understood in advance, it probably would not be, but — but I’m just saying the house and lot is still property regardless of whether Congress can take it away or not.

It can validly take it away.

That would be my view.

Felix Frankfurter:

Mr. Rein, your argument is you say that Congress in speaking of its constitutional power, the United States (Inaudible) unconstitutional, and you’re invoking constitutional provisions.

And I think when you’re dealing with constitutional provisions to invalidate the power upon Congress (Inaudible) the words of the Constitution.

And I should like to read you what Article III, Section 2, which you invoke.

Clearly, it doesn’t say anything about punishment.

(Inaudible) It says the trial of all crimes, of all crimes, except in cases of impeachment, shall by jury, and such trial shall be held in the State where the said crime shall have been committed (Inaudible) in these provisions that said punishment, and that provision said the trial of all crimes when (Inaudible) learned lawyers, very able lawyers have (Inaudible)

David Rein:

Well, may I say — I can only say in response that the Wong Wing case which sees to be indistinguishable here relied on that under Sixth Amendment to invalidate to statute there.

Now, there, to there was no crime but there was a punishment.

Now, I don’t see how you get around the problem of saying, for example, because Congress doesn’t label something a crime —

Felix Frankfurter:

You put question of labeling a crime in a legal document means prosecution which has to be begun by indictment and proceeded with before a jury in this loose way of talking about the Constitution as though we are really construing a newspaper article instead of the great documents by which this country was applauded and by which it — it is going up.

David Rein:

I think the purposes of those constitutional provisions are to provide that you can’t reach the end result without going through that procedure.

Felix Frankfurter:

I don’t (Voice Overlap) —

David Rein:

And if Congress goes ahead and reaches the end result of imprisonment or a fine without having a prosecution for a crime, it then violates the Constitution.

Felix Frankfurter:

Invoked to you to construe the word but you are to quote the (Inaudible)

David Rein:

On the assumption, if I may have just a moment, that an ex post facto law does cover penalties of this character, this statute is an ex post facto law.

Now, the Government makes some contention in its brief that it’s not an ex post facto law because in fact the statute was passed in 1954.

The alien did not actually become — receive his benefits until 1955.

But I think what is important here for ex post facto considerations is the date of the conduct on the basis of which the penalty was imposed.

And that conduct terminated in 1939.

I think it’s indicated earlier by Mr. Davis.

He said there was no clear termination date.

What is significant here is that the Board of Immigration Appeals, which was the body which decided that the alien was deportable and set forth the grounds, said that his membership in the Communist Party had lasted or terminated in 1939 or at least that was the last date on which they found membership.

So that we therefore find that — or the conduct which terminated in 1939 was the basis of the later penalty which was inflicted upon and first by the 1950 statute of deportation and now, by the 1954 statute.

And I think it comes within the language used to describe the ex post facto clause in the American Communications Association against Douds case in which it said that what is controlling is whether the conduct to which the individuals are being punished has been completed, so that “nothing that those persons proscribed by its terms could ever do or change the result.”

And that was the situation here.

David Rein:

After 1939, there was nothing that the petitioner here could do that would change the result which led to the depravation — first is deportation, the deprivation — laid the deprivation of benefits.

Now, the fact that he could be deported on that ground is really not relevant here because this Court has held that deportation is not punishment.

And therefore, they said that the ex post facto clause does not apply to deportation on that ground.

I think finally, and on the view that this is a penalty and that is being penalized for the conduct which was their membership in the Communist Party it is clear under the cases in this Court that the conduct here which the petitioner engaged in was protected by the First Amendment, is shown both the Yates case and by the De Jonge case.

And for any loss of privilege or punishment to be inflicted on the basis of conduct protected by the First Amendment, would be a violation of that provision of the Constitution.

Thank you.

Earl Warren:

Mr. Davis.

John F . Davis:

Mr. Chief Justice.

First, very — the — with respect to the Costello case —

(Inaudible)

John F . Davis:

— that — that for what it — for any importance there is.

The proceeding is first, the denaturalization proceeding on the ground of some fraud which I do not know in connection with his actually obtaining citizenship.

Then if he is denaturalized — when he is denaturalized, then he would be subject to deportation presumably because of commission of crimes involving moral servitude or that might be the procedure but there are two separate things, one, question of whether he described in his naturalization, and the second question, the question of deportation.

Now, with respect to whether property was taken away from — from Mr. Nestor, I think it’s important that we not treat this as though a right to $55.60 which had accrued to him was taken away at the time he was awarded this benefit of $55.60.

The law was then on the books stating that if he was deported on the basis of being — having been a member of the Communist Party that this would terminate so he took this money at that time subject to that deficients.

The question is whether his right which existed in 1954 because of the reason that he had paid taxes under this system, whether that is a right at which the deprivation of which is — deprives him of due process of law.