Mackey v. Mendoza-Martinez

PETITIONER:Mackey
RESPONDENT:Mendoza-Martinez
LOCATION:Federal Reformatory for Women in West Virginia

DOCKET NO.: 29
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 362 US 384 (1960)
ARGUED: Nov 10, 1959
DECIDED: Apr 18, 1960

Facts of the case

Question

  • Oral Argument – November 10, 1959 (Part 2)
  • Audio Transcription for Oral Argument – November 10, 1959 (Part 2) in Mackey v. Mendoza-Martinez

    Audio Transcription for Oral Argument – November 10, 1959 (Part 1) in Mackey v. Mendoza-Martinez

    Earl Warren:

    Number 29, Mackey, Commissioner of Immigration and Naturalization Service versus Francisco Mendoza-Martinez.

    Mr. Davis.

    Oscar H. Davis:

    Mr. Chief Justice, may it please the Court.

    This declaratory judgment action is here on direct appeal from the Federal District Court for the Southern District of California.

    It comes to this Court on direct appeal under 28 U.S.C., United States Code 1252 which provides for a direct appeal in a civil proceeding involving the Government when a District Court has held invalid a statute of Congress, and the statute of Congress which the District Court here invalidated is Section 401 (j) of the Nationality Act of 1940, providing for loss of nationality by an American who has gone abroad to evade the draft.

    Both the issue and the case have been here before.

    The case was here at the same time as the expatriation cases which were decided two terms ago and was remanded to the District Court in the light of one of those cases, then decided.

    The issue itself was involved as presented by the parties in the Perez case, but was not decided by the Court.

    The only issue in this case, as it comes to this Court, is the validity of the statute.

    There are no questions of fact involved, as I shall point out, they were stipulated below.

    So the only issue is the issue of the validity of the statute.

    As I shall also point out a little more in detail later, this particular section of the Nationality Act of 1944, though it was before the Court two terms ago, was not passed upon by the Court and therefore, the issue is now open for the Court to decide.

    I should also mention at this point I think that this involves the Nationality Act of 1940 which has since of course been superseded by the Immigration and Nationality Act of 1952 as a comparable provision in — in the later Act, but it — it contains somewhat different provisions and so I — I’d want to say that what we have here is the Section 401 (j) of the Nationality Act of 1940.

    The facts were undisputed and were stipulated in the court below.

    The appellee was born in the United States in 1922 and of course was an American citizen at birth.

    He was also at birth and has at all time since been a citizen of the Republic of Mexico.

    It is agreed that in 19 —

    Earl Warren:

    From birth?

    Oscar H. Davis:

    Pardon me?

    Earl Warren:

    From birth?

    Oscar H. Davis:

    From birth.

    Apparently, because his parents were American nationals, that is not in the record but I assume that’s so.

    After the Selective Service Act was passed, he registered for it, but before he was called to service, I believe, in 1942, he went to Mexico.

    Now, he has stipulated that the sole purpose of his going to Mexico was to evade the draft and he has stipulated that the sole purpose of his remaining in Mexico, which was until November 1, 1946 was to avoid the draft.

    Potter Stewart:

    Does the record show how old he was when he —

    Oscar H. Davis:

    Since he was born in — in 1922 and he went to Mexico in 1942, he was 20 at the time.

    He remained in Mexico for four years until November 1946, after the close of hostilities in the — in World War II.

    On his — he then returned to this country.

    He was then — charges were then brought against him for draft evasion in California, he pleaded guilty, was sentenced to a year and a day which I believed he has served.

    The Immigration Service then brought deportation proceedings against him on the ground that he had expatriated himself under Section 401 (j) by going to and remaining in Mexico for the purpose of evading the draft and an order of deportation —

    Potter Stewart:

    You say that he had expatriated himself, are you suggesting that this amounted to renunciation by him?

    Oscar H. Davis:

    Not in the sense that he consciously did renounce.

    All I mean by that is he voluntarily went to Mexico for the purpose of — of evading the draft.

    That is a stipulated fact which no one disagrees.

    Potter Stewart:

    It is possible of course to renounce the citizenship.

    Oscar H. Davis:

    Yes.

    Potter Stewart:

    Is it possible for somebody under 21 to do it?

    Oscar H. Davis:

    Under the Nationality Act of 1940 it says, you can renounce from the year — age 18 up.

    Potter Stewart:

    18 up.

    Oscar H. Davis:

    I’d like to point out at this moment, Mr. Justice Stewart that I don’t think the issue of his age is in the case at all.

    First, that it wasn’t raised and second, because the Section 401 (j) was only passed in September 1944.

    And the — it was his remaining abroad after that time which constituted his expatriation and by that time he was 21.

    So, in this case, in a previous case, there was that issue involved but in this case there is no such issue.

    He — as I was saying, the deportation proceeding was brought against him and an order of deportation was issued.

    Apparently, he then left voluntary to return to Mexico under that order of deportation.

    Sometime in 1952, he returned to the United States, apparently claiming to be an American citizen and after his return in 1952, another deportation proceeding was brought against him in 1953 and he was again ordered deported and it was ordered — the order of deportation was upheld by the Board of Immigration Appeals.

    It was then that he brought the present declaratory judgment action, to have himself declared an American citizen and of course, if he prevails in that — in this suit, the deportation order will necessarily be invalidated because he will not be an alien and therefore not subject to deportation.

    Two terms ago, the Court handed down two decisions in the Perez and Trop cases.

    Before I begin to discuss Section 401 (j), I’d like, if I may, to give a summary of what in our view those two cases decided and what is the present background of the — of existing law and expatriation as I stand here to argue this case.

    The Perez case as the Court remembers involves Section 401 (e) of the 1940 Nationality Act, the foreign voting provision and the opinion of the Court which was very majority of the Court, we think decided the following propositions.

    We think, the Court, the majority of the Court decided, that Congress did have the power to denationalize American citizens in appropriate cases.

    And it rejected the notion that such denationalization can only follow upon a voluntary renunciation by the citizen himself.

    Second, we think the Court decided, in our view and in the Court’s view affirming or conforming what had previously been decided in Mackenzie against Hare and in the Savorgnan case decided that in a subjective intent to give up ones nationality was not a prerequisite and therefore, was not required to validate denationalization.

    And third, we think the Court decided that the general standard for determining the validity of an expatriation statute of Congress was the rational connection of the denationalization with a granted power of Congress and that case, as decided by the Court, it was the Foreign Affairs power and we think the Court recognized that due deference has to be given to the judgment of Congress at the same time that due deference is paid to the cherished status of American citizenship.

    Now, the Court also had before it, the second case, the Trop Case as to which there was no opinion for the majority of the Court.

    As we read it, the Section 401 (g) was invalidated by a majority of the members of the Court as improper punishment.

    The four justices who joined in the Chief Justice’s opinion, we think held that in the circumstances there where Trop, the petitioner in that case did not have a second citizenship, he was not a dual national that the consequence of statelessness which would be vested upon him by the denationalization provision of Congress constituted cruel and unusual punishment.

    As we read Justice Brennan’s concurring opinion in substance, he — he was of the view that the punishment of denationalization was too drastic a penalty for the objectives to be gained, sought to be gained by Congress.

    Potter Stewart:

    Didn’t — didn’t four justices in Trop expressed the view that Congress was without power to deprive anybody of a citizenship because the way citizenship is defined in the Fourteenth Amendment?

    Oscar H. Davis:

    We don’t read it that way, Mr. Justice Stewart.

    Potter Stewart:

    Perhaps, I better (Inaudible) instead of you but I —

    Oscar H. Davis:

    I will — I will explain —

    Potter Stewart:

    But I’ve done that, I’ve —

    Oscar H. Davis:

    Yes.

    As we — we read — as we see the situation, Mr. Justice Stewart, was this.

    Mr. Justice Whittaker who did not join in the decision of the Court in the Perez Case, the voting case, in his memorandum there, said that he did agree with the general principle that was adopted in the Perez Case than in appropriate cases, Congress did have the power to denationalize citizen — citizens, regardless of his voluntary desire to be denationalized.

    As I read the section of the Chief Justice’s opinion in the Trop case, he is speaking for himself and the two colleagues who joined him in dissent and in Perez but not Mr. Justice Whittaker who had made his views on the general subject of plans.

    So that I think that the law as I stand here today is the — the Perez case, the decision of the Court in the Perez case and I think the Chief Justice if I may say so recognized in his opinion in the Trop case that that was so because he says the majority of the Court has taken another view and I will attempt to get — I will give the reasons why in our view that section, Section 401 (g), the desertion section was invalid even under the view of the majority in — in the Perez.

    Potter Stewart:

    And at that section the opinion that —

    Oscar H. Davis:

    That I think that I may fairly be said is the one in which Justice Whittaker joined with the other three justices and Justice Brennan had of course his own opinion.

    The burden of my argument of course will be to try to show the Court that there are differences between 401 (g), the desertion section which was involved in the Trop case and 401 (j) the draft evasion section which I haven’t in the case which is before Your Honors now.

    They both have a common source.

    It is true that both of these provisions find their common progenitor in the 1865 statute of the Civil War Congress which provided for loss of the rights of citizenship by deserters and those who went beyond the district having enrolled in the draft.

    We have always maintained and for the benefit of the members of the Court who were not, Mr. Justice Stewart, who was not a member of the Court at the time of the Perez case, in the appendix to our brief, we have set forth the parts of our briefs in the Perez and Trop cases in which we tried to show that the 1865 statute was a true loss of nationality Statute and not merely a forfeiture of franchise right.

    I don’t know if that’s too decisive, but I thought that — we have maintained that we think that this is supported by the Congressional treatment of the statute by the administrative treatment and by certain Court decisions.

    But the — the factors in which the 1865 statute is different from the later statute, both the desertion statute which is before the Court in Trop and the draft evasion statute which is before the Court in the present time are these.

    Under the 1865 statute, a court-martial conviction was required, that is the statute as interpreted by the Court required a court-martial conviction.

    And second, it was not necessary to leave the country in order to have invoked the provisions of the 1865 statute either as to desertion or as to draft evasion.

    The provision that’s draft evasion in the 1865 statute merely provided for loss of the rights of citizenship if you left the district where you were enrolled, not if you left the country.

    And, I shall try to point out to the Court that in our view, the leaving of the country is a very decisive factor and a very different factor from what was the Congress had in the earlier statute.

    Well, this 1865 statute continues in effect, in 1912 it was modified to apply — to apply — only to peace time desertion.

    Of course since there was no draft after the civil war.

    There was no effectiveness of the draft evasion provision until World War II and it was considered to be in effect in World War II.

    It was repealed in 1940 when Congress passed the General Nationality Act and recodified the whole matter.

    As far as I can determine, there is no reference anywhere to why it was repealed.

    I think the true answer probably is that the draft evasion at that — when the Cabinet Committee and the Congressional Committees were considering the problem of loss of nationality for the new code, there was no Draft Act in effect.

    It only went in to effect in October 1940 and so, they didn’t think it necessary to continue the draft evasion part of the earlier statute.

    They did continue the desertion provision in Section 401 (g) which is here in Trop.

    But Congress did come along as the Court remembers very quickly in the Spring — in the Fall of 1940 and passed a new Selective Service Act.

    And I think though that Act was in a sense going through Congress simultaneously, it was too new and too quick a change to make anybody think of making a change in the draft evasion provisions.

    Oscar H. Davis:

    Well, at any rate they didn’t —

    Hugo L. Black:

    The measures of before different committees —

    Oscar H. Davis:

    They were before different committees actually and so it was not until 1944, that suggestion was made that a provision providing for expatriation for denationalization for going beyond the country to evade the draft was suggested to Congress and enacted.

    The Attorney General made the suggestion in 1944 and it was unanimously recommended by the appropriate committees of both houses and passed by both houses with very short debate.

    It was made very clear in the legislative history at that time that they were to be in a sense these two differences from the earlier Civil War Statute that is no criminal or court martial conviction was to be required for draft evasion.

    Congress thought that there would be many people who would never return to the country and therefore there would be no possibility of having a criminal conviction.

    It was made quite clear on the floor of the House and at least that they didn’t want these people whom they felt had lost the right to be American citizens to come back to the country.

    But they did want them to have the right of Court review and so they provided for a Court review under Section 503 of the Nationality Act which is the general provision of that statute providing for a Court review of a claim of American citizenship in which there is de novo determination of the facts by the District Courts.

    Potter Stewart:

    No right to a jury trial is there?

    Oscar H. Davis:

    No right to a jury trial, Mr. Justice Stewart.

    It’s an equity proceeding, preparatory judgment.

    We think that there are three —

    Felix Frankfurter:

    That has been traditionally the two of denationalization proceedings, right?

    Oscar H. Davis:

    Yes, denatural —

    Felix Frankfurter:

    (Inaudible) I’m not talking about —

    Oscar H. Davis:

    Yes.

    It has been traditionally true of denaturalization proceedings and also of — of all types of proceedings involving issues as to nationality even those prior to the 1940 statute were under the decision of the Court in Yun Fang Ho, it was said that there could be a right to de novo review.

    There has never been a jury trial in any of those.

    William J. Brennan, Jr.:

    Mr. Davis, well, I gather that the fact I gather from this fellow had been convicted was he not of (Inaudible)

    Oscar H. Davis:

    Yes, sir.

    He was the —

    William J. Brennan, Jr.:

    But that — that’s not significant to your argument, then I gather?

    Oscar H. Davis:

    It may be significant on some alternative arguments.

    It is not significant — it is not basically significant to my — my primary arguments.

    William J. Brennan, Jr.:

    Yes.

    Oscar H. Davis:

    We think that there are three heads of jurisdiction that Congress had in order to pass this particular provision of the 1940 statute.

    I’ll state if I may in summary form first.

    The relationship to foreign affairs second the inherent right of a nation to declare to denationalize a citizen who puts himself entirely beyond the reach of the authority of the country as this man did by going to beyond the country where our processes could not reach him, even extradition as I point out could not reach him.

    He in a sense deprived not only the particular draft law that he was accused of and later convicted of — of disobeying but he defied all power of the authority — of the country to be able to reach him, to compel him to perform his duty.

    And the third head of jurisdiction are the war powers which we think also authorized Congress to pass this particular statute.

    Earl Warren:

    Under that theory you’ve just announced, could you do the same if a man fled the country after committing any crime?

    Oscar H. Davis:

    In my view Mr. Chief Justice, yes.

    That is, if not if he fled the country to a place from which he could be extradited.

    The theory which in it is — I’ll try to develop a little later, the theory is, that if you put yourself wholly beyond the reach of the United States in a sense that if you don’t say as some people have said, I won’t do what you want me to do I’ll disobey your laws, but then you can do with me what you will that is you can impose punishment on me I will fight it but at least I will submit to the jurisdiction of the United States to the judicial authority, that’s one thing.

    But, if a man goes wholly beyond the United States to a place where he can’t be reached even by extradition, then, we think it’s a wholly different thing because then we think the individual has in a sense if I may say so, broken the ultimate compact between the citizen and the country which is that the citizen will at least agree to submit himself to the ultimate authority of the country.

    He may not agree to obey its laws and he may not agree to do anything, but he will at least agree that he is subject to its jurisdiction and authority.

    Earl Warren:

    I suppose there are many countries where we have no treaty to permit extradition in taxation cases.

    Did the — did the Congress say that a man who flees to another country to avoid paying his taxes to this Government loses citizenship?

    Oscar H. Davis:

    I would say that — I don’t have to go as further in my —

    Earl Warren:

    But you — you’ve just gone that way, why don’t you go?

    Oscar H. Davis:

    No, no I —

    Earl Warren:

    Why don’t you —

    Oscar H. Davis:

    No, Mr. Chief Justice.

    I don’t have to go any further in my argument than to say that the man flees to a county from which he cannot be reached either by a form of extradition treaty or by the handing over of the State.

    The reason I made that qualification is I thought you said there were some countries that didn’t have an extradition treaty but might hand them over anyway.

    Earl Warren:

    No, I didn’t say that they might hand them over.

    I just said they didn’t have an extradition treaty and if — if Congress could then in your opinion deprive the man of his citizenship in this country where he was born for leaving the country for the purpose of evading taxes.

    Oscar H. Davis:

    I think they can’t deprive him for the purpose of evading taxes unless he goes to a place where he cannot be reached, where he defies the authority of the country and I gather support for that Mr. Chief Justice not only from the what might be called the ultimate relationship of the citizens of the country that the citizen has some ultimate obligation.

    The ultimate obligation is to submit to the authority of the country.

    But I — I derive some support from that — even from the wording of the Fourteenth Amendment which says that persons born or naturalized in the United States are citizens thereof and it says born or naturalized and subject to the jurisdiction of the United States and subject to the jurisdiction of the United States.

    I think implicit in that notion is the fact that the American citizen does not put himself beyond the jurisdiction of the United States so that we can’t reach him in any way.

    I don’t mean just by going abroad but we can’t reach him even through our international treaties or through diplomatic negotiations.

    That we can’t reach him really short of going to war with the place to which he has gone.

    Earl Warren:

    Well, if you use the Fourteenth Amendment for that purpose, wouldn’t any person whether he committed a crime or not who went to a country with which we had no extradition treaty or any way of bringing him back forfeit his citizenship whether he commits a crime or not.

    It wouldn’t be under the jurisdiction of —

    Oscar H. Davis:

    No.

    I’m not — I’m not saying that the Fourteenth Amendment that — that — the Fourteenth Amendment requires that people lose their American citizenship.

    I’m saying that implicit in it is the possibility that Congress can take the position that if a man puts himself outside the jurisdiction of the United States then he shall and the United States wants him.

    Of course if the United States doesn’t want him, and they say it’s perfectly all right to go to — to Grass Stock or Lichtenstein or wherever you wish then — and you may stay there but the point I’m trying to make Mr. Chief Justice is that the United States wants him and says we want you to come back to perform a certain duty and he says, “No, I will not and I’m putting myself in a place where you cannot reach me” then we think that that is permissible both under the principles of the Perez case and in the implicit assumptions of the Fourteenth Amendment that he can be, that Congress can provide for denationalization of such a person.

    Earl Warren:

    And that’s whether he has committed any wrong before he left to go to that place or not?

    Oscar H. Davis:

    If — if Congress wanted him back for some purpose.

    Earl Warren:

    Yes.

    Oscar H. Davis:

    That is if they said, we want all citizens to come back for military training, yes.

    I would also say, I would take that position Mr. Chief Justice but I would also say, that I’m not required to take that position in this case where the obligation which he refused to fulfill has been termed — called by this Court the supreme, the ultimate obligation of a citizen that is of military service in many cases.

    And so, all I’m required to take for this case is the position that if a citizen goes abroad to evade that ultimate obligation, to a place where he cannot be reached then Congress can constitutionally provide for his loss of nationality.

    Felix Frankfurter:

    But he doesn’t have to do anything wrong if he just stays abroad long enough?

    Oscar H. Davis:

    Yes.

    I think Congress can constitutionally provide that American citizens who remain abroad for a prolonged period of time.

    This is a provision of the statute with relation of naturalized citizens today and many other countries have of similar provision with relation to both native born and naturalized citizens if they live abroad for a prolonged period of time without returning to the country.

    Potter Stewart:

    There are laws in good many of the States, aren’t there canceling a good many rights of citizenship in the case of a convicted felon?

    Oscar H. Davis:

    Yes.

    Potter Stewart:

    Are there any — any State laws or that couldn’t be of course that — that purport to deprive a person of this United States citizenship?

    Oscar H. Davis:

    Well, I know of none and I’ve seen no reference to it.

    Potter Stewart:

    Are there any that purport to completely deprive him of his citizenship in — in that State or out that State?

    Oscar H. Davis:

    I don’t know of any, Mr. Justice Stewart, but I haven’t made a search.

    Potter Stewart:

    They — they —

    Oscar H. Davis:

    I’ve not seen any references.

    Potter Stewart:

    Typically, they — they deprive him of a right to vote.

    Oscar H. Davis:

    Right to vote.

    Potter Stewart:

    And to serve on juries.

    Oscar H. Davis:

    Yes and other — other rights — a labeled rights to the citizenship, yes.

    There are many such and of course the federal criminal code has similar provisions for people convicted of federal criminal crime — federal crimes.

    Potter Stewart:

    What and what do those —

    Oscar H. Davis:

    Loss of right to hold public office for instance.

    That’s a — a — provision which appears several times in the 18 United States Code.

    Potter Stewart:

    Not as a generality but —

    Oscar H. Davis:

    No, with relations to specific crimes.

    Potter Stewart:

    With relations to specific offenses.

    Oscar H. Davis:

    That’s right.

    In addition to the — to the general proposition which I — I’ve just been discussing it in colloquy with the Chief Justice, we think that the foreign affairs power does give sanction to this Statute which Congress enacted in 1940 and it’s clear that foreign affairs can be involved because the citizen, the statute doesn’t come into effect unless the citizen goes abroad.

    Oscar H. Davis:

    When he goes abroad to another country, to Mexico as in this case, there is involved another country.

    The United States which is the country of his nationality has double interest.

    It has an interest in seeing that he returns if possible to serve his — his Country in the Armed Forces as is required to do and it also has another we think interest that is it has an interest in saying that a particular country nearby whether it will be Mexico or some other country does not become a center of refuge or disaffection for a large number of draft evaders that we think is a — a responsible interest which the United States can have.

    Now, since the draft evader is in another country, the United States can call upon the other Country to deliver him up and say, we want you Mexico or what other country to send Mr. Mendoza-Martinez back to this Country.

    And that is a possibility of embroilment there or the United States can get in touch with the draft evader individually, questionably and say we want you to return back.

    Now, he may then turn to the country where he is because the country where he is a country of his present residence and he can call upon them at least for a certain measure of protection and he can turn to Mexico and say, I don’t want to go back to the United States, you help me to stay here I don’t want to go back and serve in the army.

    I shall try to point out later that of course all these possibilities are heightened when he is a national of the country of – of play as he was in this case, but I’m speaking now of a situation where he is not a national of the country at play.

    He is just an alien resident in Mexico and I’m trying to point out the possibilities of international embroilment which can occur just from this situation.

    Now, this is not a passable possibility we think.

    The 19th Century history of the relationship of the United States with Great Britain and France and Germany and Austria does show the difficulties that can arise when a country which has conscription as Great Britain, France, Austria and Germany did in the 19th Century and wants to enforce conscription, the difficulties that can arise when that country reaches over to another country and says, “You have a national of our country living in your territory, we want him back.”

    The pages of Morris Digest of — in national law and other books are filled with — with diplomatic negotiations between this country and other countries with respect to claim of the foreign countries to have their citizens or people they regarded as their citizens, return to that country for the purpose of observing in the armies.

    Now, this possibility can arise in the future.

    It is certainly not beyond possibility that certain countries here and near this United States or faraway could become centers of draft evasion or disaffection and it — in a situation it might become very important for the United States to be able to secure as large an amount of manpower as possible for the army and it would in a situation like that make a request to these countries saying, don’t — don’t accept Americans who come to your country for this purpose.

    Send them back or refuse them at the borders.

    Our opponents say, well, the United States of course isn’t required to make a request to the other country, it isn’t required to create an international embroilment but of course you don’t judge these issues and you don’t test them by whether it’s the other country which first raises the issue or whether it is we who raised the issue.

    Extradition matters are matters of foreign affairs, but we are always the one who is asking the other country to send back, when we’re asking to extradite somebody, send back the alleged criminal from the other country or when an American is mistreated abroad, it’s this country which raises with the other country the issue of the American being mistreated abroad.

    So, I don’t think that there’s any substance in the argument that the United States, even though its thought that another country was becoming too large a center of — too large a refuge or sanctuary for draft evaders should, shall we say forestall any international complications by refusing to — to draw the matter to the attention of the other country.

    It is in the realm of foreign of affairs and it’s a matter which the United States can appropriately take up with the other country as the whole history of the 19th Century indicates.

    Are there any figures as to how many people have been denied under the statute.

    Oscar H. Davis:

    Mr. Justice Harlan, at page 31 of our brief is a Footnote which summarizes a table which was appended to the Government’s brief in the Perez case and it gives the total.

    The total is about 1000 full of period from 1948 to 1959.

    Now, I would point out to you that this is only an administrative determination that is the Commission of Immigration and the State Department, the matter comes to their attention makes a determination which is not of course binding on the individual as to whether or not he has been expatriated.

    Many of these have not sought to bring Court actions, but many of them had and these figures here relate only to the administrative figure so you can’t definitively say that that number of people have been expatriated though I suppose many of them has accepted the administrative determination of it in that sort of Court action.

    William J. Brennan, Jr.:

    Mr. Davis, one thing that’s puzzles me about this last argument is this statute cuts them lose in America as soon as you go to the other country does.

    Oscar H. Davis:

    Yes, that’s right.

    William J. Brennan, Jr.:

    I would suppose that would mean we wouldn’t want them back.

    Oscar H. Davis:

    Well, — what I’m — Yes I think that as soon as that —

    William J. Brennan, Jr.:

    Now, I don’t quite understand how this can play over this (Inaudible)

    Oscar H. Davis:

    No I don’t think that —

    William J. Brennan, Jr.:

    I should think they would be mad that we’re casting loose Americans that we don’t want.

    Oscar H. Davis:

    What — what I was trying to argue Mr. Justice Brennan, I did not make it clear enough was that there is this possibility of foreign affairs involvement here as there was with relation to voting in the Perez case and that Congress could decide —

    William J. Brennan, Jr.:

    Well, now where — where — where does that lie? Where is the possibility of foreign embroilment?

    Oscar H. Davis:

    That is suppose Congress did not pass the statute, suppose Congress did what the opponents say they should have done and that is increased criminal penalties on people who went abroad then you would have pressure on the United States to go and get these people.

    And what I’m saying is that Congress chose to root here which it chose in the Perez Case to say, we cut them loose.

    We will no longer be interested in that, and that will minimize the possibilities of foreign embroilment and then —

    William J. Brennan, Jr.:

    As for the other nation get little upset that we didn’t do something to bring him back.

    Oscar H. Davis:

    Well, the other —

    William J. Brennan, Jr.:

    He may not (Inaudible)

    Oscar H. Davis:

    — nation always has the power to exclude them from its borders.

    It has that power as a sovereign nation.

    And — and I think you’re right, I didn’t make it clear and I — I want to take this opportunity to make clear that the purpose of the statute is to minimize and — and limit the possibilities of foreign embroilment which could occur if the other methods of handling the problem of draft evasion by flight were adapted which had been suggested by our opponents and by others.

    Potter Stewart:

    This isn’t a very efficient way to raise an army though, is it?

    Oscar H. Davis:

    No.

    It isn’t an efficient way to raise an army but the — debates make it clear that Congress thought that there’s nothing like — that — that these people were gone and you might as well cut them loose.

    They said that they weren’t worthy of being American citizens, we didn’t want them back.

    And though I will make the argument later that — that the one support for this statute is in war powers of Congress that is it does have certain inducing effects on — deterring effects on an individual.

    I think that the — the major purpose as revealed by the debates was not so much that as the — the cutting off of these individuals who had in either Congress refuse to comply with the highest obligation of the citizen.

    Before the recess, if I might, I would like to call attention to the –the emphasis which all these problems that I’ve been talking about bear when the evaders is a dual national as he is in this case because of course then he can call upon the country where he is residing not only as a resident but as a citizen and — and say, “I’m a Mexican, I don’t want to go and fight for the United States.”

    And of course that country, the country of the evasion, has an interest in protecting its citizens which is somewhat greater than in protecting its resident.

    Now, these two isn’t fanciful because in the first of these cases in this Court the Gonzales Case about three terms ago, which went off on the ground of burden of proof, Gonzales did make the argument at an executive agreement between Mexico and the Unites States freed him from all service in the United States.

    And so, it isn’t fanciful to say that a dual national who is in another country will argue that he — that he isn’t required to come to this country to perform a service.

    Felix Frankfurter:

    That factor can hardly be taken into account down the validity of the statute unless you argue that the statute is to be cut down to a dual nationality case before the Court.

    Oscar H. Davis:

    No, sir.

    But I think it has a — a bearing in two respect.

    One is that the history is very clear and the actual history under the statute is clear that it has — it’s had its major impact on dual nationals.

    Every case that we have found where anyone has been expatriated appears to have been a dual national probably of Mexico and the United States.

    Felix Frankfurter:

    If that’s so, you put it the other way around.

    The existence of dual national as potential people who rid themselves with obligations to this country might well have been inducing cause of the legislation.

    Oscar H. Davis:

    That was second argument, Mr. —

    Felix Frankfurter:

    All right.

    Oscar H. Davis:

    — Justice Frankfurter that it was an inducing cause.

    This becomes clear from the — from the letters which the Attorney general sent to the Senate Committees as well as from the debates that there — it was clear that they were talking mostly about people who went to Mexico and there was a specific reference to the fact that these — these were Mexican nationals too.

    So, I rest on both grounds, Mr. Justice.

    If necessary, I would also rest of course on a ground of separability that the case before the Court involves a dual national and that Separability Clause of the 1940 Act would separate out any other non-valid application of the statute.

    We think also that — that — on — on this matter of flight abroad that it does, particularly where the individual is a dual national, it does show in — in reference to what the Court said in the Perez case about a choice of allegiance.

    That it does show a choice on the part of this man for the protection of Mexico, his other nationality rather than the responsibilities of — or the obligations of his American citizenship.

    Earl Warren:

    We’ll recess now.