Kennedy v. Mendoza-Martinez

PETITIONER:Robert Kennedy, Attorney General
RESPONDENT:Francisco Mendoza-Martinez
LOCATION:Congress

DOCKET NO.: 2
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Federal district court

CITATION: 372 US 144 (1963)
ARGUED: Oct 10, 1961 / Oct 11, 1961
REARGUED: Dec 04, 1962 / Dec 05, 1962
DECIDED: Feb 18, 1963

ADVOCATES:
Bruce J. Terris – reargued for the appellant in No. 2
J. William Doolittle, Jr. – reargued for the appellant in No. 3
Leonard B. Boudin – argued and reargued for the appellee in No. 3
Oscar H. Davis – for the appellant in No. 2 and No. 3
Thomas R. Davis – argued and reargued for the appellee in No. 2

Facts of the case

Francisco Mendoza-Martinez (Martinez) was an American by birth with dual Mexican citizenship. Martinez admitted that to avoid the draft, in 1942, he left the United States for Mexico and did not return until November, 1946. As a result of his deliberate absence, Martinez entered a guilty plea in 1947 to violating Section 11 of the Selective Training and Service Act of 1940 (the “Act”) and served 366 days in prison. Five years after his release, Martinez was issued an arrest and deportation warrant premised on a violation of Section 401(j) of the Act which divested draft dodgers of their U.S. citizenship. Following a dismissal of his appeal from the Attorney General’s special inquiry decision stripping him of his U.S. citizenship, Martinez challenged the constitutionality of Section 401(j) in District Court but was defeated. On appeal from the Ninth Circuit’s opinion upholding the district court decision, the Supreme Court granted certiorari. This case was decided together with Rusk v. Cort.

Question

Did Section 401(j) of the Selective Training and Service Act of 1940, divesting U.S. citizens of their citizenship for remaining outside the United States during a time of war or national emergency in order to avoid the draft, violate the procedural safeguard of the Fifth and Sixth Amendments?

Earl Warren:

— Kennedy, Attorney General of the United States, versus Francisco Mendoza-Martinez.

Mr. Davis, you may continue with your argument.

Thomas R. Davis:

Thank you Your Honor.

William J. Brennan, Jr.:

Mr. Davis, before you begin, I think you told us yesterday that you submitted to Judge Jertberg, a court order which included the provisions for injunctive relief and that he refused to enter it, but under the order he did.

Did the Government make any objection to your order?

Thomas R. Davis:

Yes.

Judge Jertberg did that because the Government objected.

William J. Brennan, Jr.:

And what was the Government’s objection?

Thomas R. Davis:

The Government objected it was beyond the scope of the action and if the Court please, there is additional reason for the Government’s having objected which I wanted to bring out exactly at this time.

Under the general prodding I must say of Mr. Justice Whittaker, I should point out that we went through a pretrial procedure in this case pursuant to Rule 16 of the Federal Rules of Civil Procedure and as I think Mr. Justice Brennan is well aware, that Rule explicitly provides for amending the pleadings to correct earlier errors and as does Rule 15 of course also provides for amendment.

But what is important about Rule 15 which relates specifically to amendment is that it provides that any amendment which is accomplished relates back to the original pleading.

In other words, the Rule says in just about so many words, the pleading as it is amended shall be deemed a pleading which was originally before the court so that the excessive zeal which I exhibited in drawing this prayer was cured by virtue of the explicit terms of Rule 15.

And on that ground, in addition to the inherent ground that it was beyond the scope of the action per se, but on the ground of the pretrial stipulation as well, the Government rightly objected to any additional ancillary relief being granted in Judge Jertberg’s order, and Judge Jertberg correctly refused me the additional ancillary relief which I sought.

Therefore Your Honor, I submit that under Rules 15 and 16, the Court correctly proceeded and what is more important, the correction that it made and in — contained in its final judgment was a correction which by virtue of Rule 15 related back to the original pleading.

I have returned again today to take up the additional time of the Court because we did not reach at all the — neither Mr. Davis nor myself reached at all the ultimate question, the constitutional question and in any time I take up, I realize that it has been many times argued here and argued by men of far greater experience and wisdom than I have.

Nonetheless, perhaps the Mendoza case is destined to be the bellwether case and it would be improper for me not at least to make some brief contentions on the basic question of constitutionality.

Without rehearsing the briefs, I would like to invite the Court’s attention to one specific question.

It is possible on one theory or another with a very sharp knife to divide Trop versus Dulles from Mendoza.

But there is one basis on which it cannot be divided and that is the question of whether it would be possible to say that in Mendoza, there is no punishment involved whereas in Trop, 401 (g), there is punishment involved.

That I submit is an indefensible distinction.

Every bit of the legislative history of this statute originating as it did with the Attorney General and proceeding through legislative argument in the citations that we have given to the Court shows that it is plainly coercive statute.

And this I submit is a pivotal question because if it is punitive, if Section 401 (j) is a punitive statute, I submit that it plainly violates procedural due process of law.

And this is of crucial importance because of the often repeated inclination or in the determination of this Court not to limit or affect the power of Congress if it can conceivably be avoided.

Felix Frankfurter:

Let me ask you this.

Thomas R. Davis:

Yes sir.

Felix Frankfurter:

Could Congress make it an offense punishable heavily, say, five years, a sentence of five years, a mandatory sentence for five years for leaving the country to escape the draft?

Thomas R. Davis:

It could’ve hung him Your Honor.

Felix Frankfurter:

It could’ve hung him?

Thomas R. Davis:

Yes.

Felix Frankfurter:

Wouldn’t that — that wouldn’t be coercive?

Thomas R. Davis:

I think it is extremely coercive but it —

Felix Frankfurter:

All I’m suggesting is that when you use words like coercive and slide from coercive to punitive, and slide from punitive to the constitution, you’re doing a lot of sliding, more than three bases I think.

Thomas R. Davis:

I didn’t mean to slide at all, I meant them as a —

Felix Frankfurter:

I didn’t say you’re meant to slide.

I’m saying you first used the word coercive and in the next sentence you used the word punitive, in the next sentence you’ve said it’s unconstitutional.

Thomas R. Davis:

May I then use the word penal and —

Felix Frankfurter:

Well, you (Voice Overlap) —

Thomas R. Davis:

— suggest that that reaches the question —

Felix Frankfurter:

I’m just indicating that if what you say goes and Congress couldn’t impose a sentence of five years, so you say hang him.

Thomas R. Davis:

No.

Your Honor, I’m not suggesting that at all because I’m suggesting indeed that they could’ve hung him. But they couldn’t have hung him on the statute like 401 (j) because there is no criminal procedure provided for.

It —

Felix Frankfurter:

I’m not suggesting it could.

I’m not — I’ve expressed no opinion on this statute.

I’m merely saying, you throw around words like coercive and punitive doesn’t help me in the slightest to analyze the problem.

Thomas R. Davis:

I understand Your Honor and for that reason, I adopt and henceforth intend to use the word penal hoping that it is as unambiguous a word as I could select.

I submit that this is —

Felix Frankfurter:

The Constitution doesn’t say Congress couldn’t make it — couldn’t have — affect penal consequences for leaving the country to obey this, does it?

Thomas R. Davis:

It — Your Honor, it could not impose a penal sanction like 401 (j) because 401 (j) is procedurally defective aside from the power.

Now, that’s another question and I’m aware of Your Honor’s views on the question of whether Congress ultimately has that power.

What I’m trying to reach now is the question of whether Congress went about it right.

Felix Frankfurter:

Alright. I understand that.

Thomas R. Davis:

And I submit that 401 (j) —

Felix Frankfurter:

(Voice Overlap) — but using adjectives — using adjectives, it doesn’t settle complicated constitutional questions.

Thomas R. Davis:

No Your Honor and I hope that the selection of the word penal eradicates any ambiguity that might otherwise have existed.

I submit that this if the statute in Trop is penal, this is a penal statute.

If it is a penal statute, it is violative of procedural due process of law because it provides for loss of citizenship instantaneously per se, a United States attorney may ordain if this happened and the only remedy in effect is to come in and say, “Alright.

You say I’m an alien.

I’m pleading as an alien but you’re wrong, I’m a citizen.”

It’s a civil proceeding in declaratory relief.

Thomas R. Davis:

It is not a criminal proceeding which guarantees to the defendant those protections which are fundamental to due process of law, to procedural due process of law.

(Inaudible)

Thomas R. Davis:

Yes Your Honor and those other protections which are elementary in which I don’t think the Court wants me to rehearse here which are necessary in a criminal proceeding.

Potter Stewart:

Why wouldn’t that have been equally true in Perez against Brownell?

Thomas R. Davis:

Your Honor, I would’ve thought that it was of course, to all of us who have labored on this side of the wall thought so.

But I think that there is a valid distinction to be made now that Perez has been decided in that this Court has held that there is vested in the Government an inherent right by virtue of its sovereignty or by virtue of the foreign affairs power, it doesn’t really matter very much which you say it is, but in any event, the Government has the power to separate its citizens from its non-citizens.

To set out certain acts which — whether the person subjectively intended it or not, nonetheless are of such a character that must necessarily result in a divestment of their citizenship.

That is the Acts have a rational nexus to the abandonment of citizenship.

In a sense, Perez is not divorced from Perkins versus Elg in the older cases which said in effect that expatriation is the voluntary relinquishment of nationality.

Perez says as Savorgnan said that the standard must be objective, the petitioner will not be hurt to come into court and say, “Well, I didn’t really mean to do that” and there’s a lot of sound ground for that Mr. Justice Stewart because suppose the Act were a voluntary signing of a pledge of allegiance to the British flag and then the petitioner later came in and said, “Well, I didn’t know what I was doing,” the Government is entitled to count on certain acts as manifesting a desire to change allegiance.

Potter Stewart:

It seems to me that everything you’d said is of extraordinary applicability to this case.

The highest duty of citizenship is to serve the nation, the United States in time of war and somebody who flees to another country to evade that obligation is an objective matter certainly I should think under the very criteria that you’ve been discussing to be considered somebody who’s abandoned his citizenship.

Thomas R. Davis:

Well —

Potter Stewart:

Surely as much as Perez by simply voting in a Mexican election.

Thomas R. Davis:

Your Honor, I don’t think that in Perez the petitioner was being punished.

He was found to have —

Potter Stewart:

The same sanction was imposed in that case as the Government would impose —

Thomas R. Davis:

Oh, yes, indeed.

Potter Stewart:

— (Voice Overlap) loss of citizenship.

Thomas R. Davis:

True.

Potter Stewart:

And if it wasn’t punishment there, why is it punishment here?

Thomas R. Davis:

Without being discourteous, I’d have to turn the question around and say how could it be non-punitive here if it — if it was punitive in Trop which four members of the Court explicitly held it to be and I think inevitably one must derive from Mr. Justice Brennan’s concurring opinion, the same result that it was nakedly a punitive statute, but I don’t mean to beg the question Your Honor.

I am trying to distinguish Perez and say that although those of us who fall on the other side of this urged otherwise, nonetheless it can now still be said that Perez is a regulated statute because the Government has got to be able to go out into this world and say of its citizens or alleged citizens abroad, these are our citizens.

These are the people entitled to the protection of the flag and these over here are not citizens and on the basis of that power, which seems to me stated that way to be an inherent attribute of sovereignty if it is not part of the foreign affairs powers, on the basis of that, Perez can be justified as a non-penal statute.

John M. Harlan II:

Do you think it’s of any significance that Mendoza was a dual national?

Thomas R. Davis:

Your Honor I think it is of no significance at all because the record is utterly devoid of the slightest indication that Mendoza ever asked to be a Mexican citizen.

The British Empire tomorrow, the Parliament can adjudicate everybody in this room, a subject to the British Crown if it so desires.

We have no control over that Act anymore than Mendoza had control over what the Mexican Constitution said about the nature of his birth which happened to be that he was born of persons who were of Mexican nationality.

Now, there’s more to it than that.

If we were to make such a distinction in this case, we would be creating a separate class of citizens, a set of citizens who were especially subject to a law.

Thomas R. Davis:

If this is the pivotal point —

John M. Harlan II:

I’m not suggesting that there is, but I was just asking the question.

Thomas R. Davis:

Your Honor, I’m suggesting that if that were in the mind of the Court, the Court should consider that it would be creating improperly a special second class of citizens who would be subject to this statute where those who had not been ordained to be citizens of the British Empire or the Republic of Mexico or whatever, those who had not happened to have fallen into that category would be relieved from the impact of the statute.

Charles E. Whittaker:

Do you think it would not have a bearing upon the question, Eighth Amendment, assuming this is a penalty?

Thomas R. Davis:

No.

Your Honor, I would submit this and this was a matter which was specially considered this time on remand.

The results of that consideration appear in a very careful language of Judge Jertberg in the specific finding on the subject in which he finds in essence that the petitioner is a citizen of Mexico according to the laws and Constitution of Mexico.

What is citizenship in Mexico if the Court please?

What is citizenship in Bulgaria or in Hungary or in Russia or wherever?

Citizenship here, we understand and certainly when the Court has written the final chapter of this series of cases, we’re going to know more about what citizenship is, but we have a pretty good idea that it means basic protections, basic protections of American rights.

But, when we say that a man is a citizen of Mexico, he may be persona non grata for any number of reasons which are beyond the knowledge or can of this Court.

Citizenship when it’s extended to a foreign land means less than nothing.

It can’t equally be cruel and unusual punishment to send for example a man to Bulgaria behind the iron curtain, even though according to the Constitution of Bulgaria, he’s a citizen of it.

To make the distinction upon that basis Your Honor is to presuppose that citizenship in each foreign land is what citizenship is here and I don’t think the Court knows that.

In fact, I think the Court more than that can take judicial notice of the fact that such is very, very far from the case.

He will be set adrift just as surely as well as the Court because Mexico may declare him for any number of its own reasons to be persona non grata.

And I can inform the Court for the record, if the Court will indulge me that long ago we received a letter from the Mexican consul on our inquiry that he was not welcome in Mexico because he had insisted on relying on his American citizenship.

It can’t be before the Court.

A Mexican consul can’t speak for the Mexican Government and I don’t think that the Secretary of State or whoever appropriate officer might make such a statement and Mexico would make it but it has been made.

I say this informally for the Court’s information.

Citizen or not, he is not welcome.

Charles E. Whittaker:

Does not Congress here have said that the very Act of leaving the country to avoid military service in time of war or national emergency is so inconsistent with allegiance as to constitute a voluntary renouncement of American allegiance?

Thomas R. Davis:

Congress could’ve said it but I think Congress would’ve been —

Charles E. Whittaker:

Could that not have been its basis for saying what it did in 401 (j)?

Thomas R. Davis:

Well, first of all, Mr. Justice Whittaker, we know that in fact it was not, that this emerged from the Attorney General’s office as an additional penal sanction for the purpose of assisting United States Attorneys and incidentally the amicus curiae brief of the American Civil Liberties Union brilliantly develops this history of the statute.

We know that in fact it wasn’t, but even if we didn’t know where the statute came from or what its source was and how it was administered, nonetheless, I would submit that Congress, and I say this naturally with deference and respect, would have been indulging in a sophistry.

A tax evader or a bank robber who goes across the border is doing the same thing to avoid this kind of sanction and the third answer Your Honor is how can we say this now of Mendoza when the Court refused to say it in Trop.

Here was a man who had taken his oath, who was in military service, who was in a combat zone and who then deserted and the Court refused to uphold the constitutionality there.

Now, how can we turn to a man who has not yet taken that oath and I hope everything I say here carries with it no implied suggestion that this was not a seriously criminal act, I have — I said this earlier in 1959 to Mr. Justice Frankfurter in response to his questioning, certainly this is a dastardly despicable reprehensible criminal act.

Those of us who are defending this and defending it so hard or doing so because we believe that it’s an infringement upon a constitutional right, but getting back into my third point, Mr. Justice Whittaker we could not say that Congress could have made such a statute in Mendoza and upholding on that basis after this Court has held that Congress could not have done it in Trop.

Thomas R. Davis:

Because of course in Trop they didn’t contain that language of deemed to have voluntary relinquished his citizenship, but hypothesizing, we could hypothesize in Trop, but this the Court refused to do.

And in a five to four decision, it struck down the constitutionality of the deserter who had taken the oath of office.

To make this distinction now, if the Court please, without deluding my previous contentions would be to reverse Trop.

I’m virtually at the end of my time and I’d like to reach entirely across for just a moment all of the considerations which are so magnificently set forth in the amicus curiae brief of the American Civil Liberties Union, I couldn’t have written that brief if I have worked on it for 50 years and I’m deeply grateful that it was filed on behalf of my client, but reaching across all of the things that have been raised, I would like to ask this Court for a moment to consider the question of ultimate power.

The Chief Justice speaking in Trop expressed the feeling that this question was perhaps behind us now because of Perez, that is to say that it is now behind us whether Congress in certain circumstances has the power to take away citizenship.

And of course, to the extent that Perez does that, I’m not entitled to speak on the subject at this point, but if I was correct in my earlier assertions that Perez is a regulated statute that is that there was a proper exercise of sovereignty to allow the United States to separate the sheep from the goats, there remains before this Court the question of whether Congress per se as a penal sanction has the power under any circumstances no matter how the statute is drafted to take away citizenship and I submit to the Court that it would be proper here to reach that question and to hold that Congress does not have that power.

And this is why I say that.

Citizenship is the status which allows the governed to contract with the Government.

Citizenship was explicitly recognized in our sister French Revolution as being the status which all of the freed people attained and the status by which they entered into their — to the great contract with their new government.

Here, it was so assumed to be the case because of the tradition of British subjects that we never said it.

And I submit that it needs saying now that the Court should hold as inviolable the status of citizenship because it is the status by which the governed contract to enter into government.

That is to say it is the source from which the Constitution arose and if this Court should hold that Congress may not infringe upon that status because it is infringing upon the contractual status of the other party, of the people.

Charles E. Whittaker:

Deserving all of these of course the right of the citizen to renounce?

Thomas R. Davis:

Yes Your Honor, always.

Thank you.

Earl Warren:

Mr. Davis.

Thomas R. Davis:

My time has expired Mr. —

Earl Warren:

Oh, your time has expired.