Perez v. Brownell – Oral Argument – May 01, 1957

Media for Perez v. Brownell

Audio Transcription for Oral Reargument – October 28, 1957 (Part 1) in Perez v. Brownell
Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Earl Warren:

Number 572, Clemente Martinez Perez, Petitioner, versus Herbert Brownell, Jr., Attorney General of the United States of America.

Mr. Horsky.

Charles A. Horsky:

May it please the Court.

This is a proceeding hereon writ of certiorari to the Court of Appeals for the Ninth Circuit by which the petitioner seeks a declaratory judgment that he is a citizen of the United States.

The District Court denied him that relief and the Circuit Court of Appeals affirmed.

Both courts relied upon two provisions of the Nationality Act of 1940 as amended to hold that although he had once been a citizen, he was such no longer.

The two statutory provisions which are involved are each subdivisions of Section 401 of the Nationality Act of 1940.

The first relevant one, subsection (e), decrees that any American citizen, whether native-born or naturalized, who votes in any foreign political election or plebiscite shall lose his American citizenship.

The second, which is subsection (j), decrees similar consequences for any citizen native-born or naturalized who remains outside of the United States with the intention of avoiding military service.

The petitioner was found to have done both of these proscribed acts.

That finding was not challenged in the court below and it is not challenged in this Court.

The only issue is whether those two subsections are within the constitutional power of Congress.

Now, briefly, the facts — the remaining facts which will focus that constitutional issue are as follows.

The petitioner was born in El Paso, Texas in 1909.

He lived there until he was nine or ten years old when he went with his parents, who were themselves Mexican born, back to Mexico.

He lived there raising a family, marrying a Mexican national in 1932 until July 1943.

In that month, and again a little later in 1944, he twice returned to the United States to work as a railway laborer.

In each instance, claiming falsely, that he was a native-born citizen of Mexico.

He had known that he was a native — that he was born in the United States earlier than that.

In July 1947, he attempted to return to the United States as an American citizen.

The immigration authorities, citing against him the same two acts which are were relied upon by the lower courts here, held that he had lost his citizenship and excluded him.

In 1952, he again returned to the United States, again claiming falsely, to have been a native-born Mexican.

Shortly after he got into the United States, he surrendered himself to the immigration authorities, who after a hearing, ordered him deported to Mexico.

It is to review that administrative order that these present judicial proceedings were commenced.

The case, I think, thus presents, squarely, the issue of constitutional power of Congress in this area.

Stated specifically, the issue is this, may Congress declare that a native-born American citizen shall forfeit that citizenship and be deported from the United States if he votes in a foreign political election or if he avoid — if he remains out of the United States to avoid military service?

Let me point out that the statutory provisions do not make those acts merely presumptive of an intention to abandon citizenship.

They are, in all circumstances and in all cases, complete acts of expatriation unless they are done under duress.

The statute also, I should point out, does not purport to make these acts for this — this forfeiture a criminal penalty.

Administrative determinations followed by the type of civil review which has — had here is the only procedure which is provided.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

Finally, it perhaps is worth pointing out that this statute does not require that the citizen, the ex-citizen, if that be the decision, know the consequences of the act that he does.

There is no finding here that petitioner knew or had reason to know that by the acts he did, he was forfeiting his American citizenship.

We believe that each of these subsections exceeds the power which is vested in Congress by the Constitution.

In a word, we believe that citizenship, native-born citizenship, of — of a citizenship acquired by birth in the United States is a constitutional right which, except possibly as a criminal punishment which is not involved here, cannot be made to forfeit for the doing of acts such as these.

What Congress can do under the Constitution is to provide that a citizen, a native-born citizen, cannot undertake voluntarily to divide his allegiance with another sovereign state.

We concede that that is well within the — the constitutional power of Congress.

Hence, it may provide as it has done in subsections (a) and subsections (b) of Section 401, that an American citizen, native-born or naturalized, who takes — who acquires nationality in another sovereign state or who takes an oath of allegiance to another sovereign state forfeits his own American citizenship whether he wants to or not.

Those are the most ancient and the most conclusive expressions of intention to abandon citizenship as this Court has noted.

And in order to avoid or minimize the international complications that might well come from divided allegiance or divided responsibility, we agree that Congress may declare that a man cannot in — in effect have two masters and that if he elects a new one, he is deemed conclusively to have agreed to abandon the old.

I say he may, because Congress can undoubtedly decree the opposite.

It need not require that it may.

Now, let me try, in the time I have, to answer two questions which I think are the basic.

First, on what basis can it be said, do I say, that that is the limit of congressional power in this area?

And second, if that be the limit of congressional power, can these two subsections which are involved be sustained?

The answer to the first question which is the limits of the power of Congress, I think is found both in our constitutional history and in the decisions of this Court.

As to history, the most significant fact is that this power was not exercised.

This power was not claimed by Congress for over 150 years after the Constitution was adopted, until 1940 to be precise.

That is not to say, that matters of citizenship and of nationality were ignored by Congress during that 150 years, indeed not.

We fought the war of 1812 in a large part to assert our position that citizenship in other countries could be renounced by an American who wished to be nationalized here.

After a long debate through many Congresses, we declared in 1868 a right of expatriation, an American citizen who wished to give up us his American citizenship was conceded the right to do it by Act of Congress in that year.

We passed the Fourteenth Amendment which dealt with citizenship.

But it was not until 1940 that Congress for the first time asserted the power to deprive a citizen, a native-born citizen of his citizenship, of his constitutional right for the act — for the doing of some act which did not involve new nationality or new allegiance.

Now, perhaps, it isn’t quite accurate to say that there was never any assertion of that power because the decision — the statutes involved in the Wong Kim Ark case in the 169 United States were not entirely dissimilar from that.

Your Honors will recall that in that case, Congress had decreed that a Chinese — that Chinese children, children of persons ineligible to become citizens of the United States, that children should not themselves be citizens even though born in this United States and subject to its jurisdiction.

This Court held that Congress had no power to take away the citizenship of those children by Act — by Act of Congress.

The Government urged in that case as it urges here that it must be of the essence of sovereignty that a State shall have the power to determine and to declare who are its citizens and who are not its citizens.

The Court did not deny that power.

The significant fact, however, which it pointed out was that the power had been exercised by the Constitution, that it was a constitutional right that Congress had determined by the original Constitution and in the Fourteenth Amendment that people born in this country and subject to its jurisdiction were citizens.

The United States has decided, not by statute which Congress can change but by the Constitution which Congress cannot change, who are citizens of this country and who are not.

Now, the teaching of the Wong Kim Ark case is, as we see it, that we are dealing here with a constitutional right.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

The Government, however, says, “We put that teaching to one side because the Court has taught us something else in Mackenzie against Hare in the 239 United States.

Indeed, the Mackenzie case, I think I can fairly say, is the keystone of the Government’s argument in this case, and I think it therefore warrants our careful attention.

The facts, as you will recall, were very simple.

Mrs. Mackenzie married a citizen of Great Britain in 1909.

She lived in California before her marriage.

She was married in California and she continued to live in California.

When she tried to vote in California, she was told that she had — her citizenship was lost by reason of her marriage to Mr. Mackenzie, a citizen of Great Britain.

And Congress had so declared in the 1907 Nationality Act.

It had declared that during the period of a woman’s marriage to a foreigner, her citizenship was in effect suspended.

That could be resumed on her — on the dissolution of that marriage.

But during the period of her marriage, she was not a citizen of the United States.

Mrs. Mackenzie claimed that the Act was either inapplicable or invalid.

Parenthetically, I should add that that Act survived the Nineteenth Amendment by only two years.

It was repealed in 1922.

This Court held that the 1907 Act, however, did apply to Mrs. Mackenzie, notwithstanding, her continued residence in California.

And it held that it was valid and that she had in effect had her citizenship in this country.

The Court relied first on the ancient principle of jurisprudence that merged the identity of husband and wife, and made the husband the dominant part of that merging.

That being true, the Court concluded, the marriage of an American woman to a foreign national may bring the Government of the United States into embarrassments and controversies with foreign nations due to this international marriage.

And therefore, Congress could provide as it had that so long as the marriage status continued, Mrs. Mackenzie’s American citizenship, even though even though native-born, was in effect suspended.

The power of Congress which the Mackenzie case actually sustains, therefore, is the power which we do not dispute.

The power of the Government — of Congress to declare that one who voluntarily assumes a new nationality cannot at the same time retain the old nationality.

But more important, I think even than that, Mr. Justice McKenna, who wrote the opinion in Mackenzie against Hare, seems to have been concerned, lest, the decision be given a broader sweep than he had intended and he made its — its — some of these limitations quite explicit.

I’d like to quote just about four lines from the opinion.

He says, this is at page 311 of 239 United States, “There need be no dissent from the cases cited by the plaintiff,” among which I should interpolate Wong Kim Ark was very prominent.

This one, “There need be no assertion of very extensive power over the right of citizenship or of the imperative imposition of conditions upon it.”

Still more significant, “It may be conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen.”

The law in controversy,” the Justice said, “does not have that feature.

It deals with a condition that’s voluntarily entered into, with notice of the consequences.”

I take it that those limitations in that opinion have, to some extent, made it difficult for the Government to find the proper way in which to attempt to justify these two subdivisions and the others like it of what, which you will hear in the later cases.

Its first theory, its first attempt at justification of these subsections was to argue that they were in effect presumptions.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

That Congress could in effect enact a conclusive presumption that the doing of an act, such as voting in a foreign election, was a voluntary renunciation.

And that consequently, it was done with the concurrence of the citizen because it was conclusively presumed to be with his concurrence.

That theory, of course, would avoid Justice McKenna’s statement.

It would avoid or perhaps better, evade the statement of Chief Justice Hughes in Perkins against Elg when he said that expatriation is the voluntary renunciation or abandonment of citizenship.

The difficulty with the theory, however, is that Congress by that is in effect enacting a conclusive presumption of the waiver of a constitutional right.

And that seems quite clear beyond its power unless it is perfectly obvious that the fact presumed and the fact by which Congress enacts followed from one another.

Perhaps, it is for that reason but for whatever reason it may be, the Government does not any longer urge that theory.

It rather in this case, has approached it on the theory that Mr. Justice McKenna in effect is wrong and that Chief Justice Hughes in effect is wrong.

And that Congress does have the affirmative substantive power to take away citizenship when it chooses to do so, simply because it is vested with the attributes of sovereignty and that citizenship is in some manner related to the sovereign powers of the United States.

We don’t deny that the United States has those sovereign powers, but we say it does not follow that Congress may exercise those powers in derogation of the constitutional rights of an individual.

That, it seems to us, is established directly by the Wong Kim Ark decision.

We find full play for the principle that in the external affairs of the United States, Congress has the power to declare whatever is necessary to avoid embarrassments and controversies.

If it has the power to determine as I said earlier, that a citizen who takes on a new nationality or a citizen who swears to a new allegiance cannot, even if he wishes to, retain his American nationality and allegiance.

Well, let me pass because I think it will help to explain what I am saying better to my second question.

If that is the scope of the congressional power, can these subsections be sustained?

I say, I think it will help illuminate it because I will necessarily be talking about the power at the time that I talk about the subsections.

Needless to say, we think it cannot.

Indeed, we say that even on the Government’s theory that support for these subsections is to be found in a — in a sovereign power over international affairs, that they cannot be sustained.

The Government makes an effort to show that these — each of these subsections is a matter of international moment.

We think it’s perfectly clear that they are not.

First, let me take up subsection (e), voting in a foreign political election or plebiscite, that is all that is required to forfeit a citizenship.

As I say, it doesn’t matter whether the citizen knew whether the forfeiture was involved.

It doesn’t matter what the vote was about.

We have cited in our brief instances in which the vote was whether beer or wine should be sold in a Canadian liquor store — Canadian Government liquor store, citizenship is (Inaudible)

We have a case in which citizens voted in Italian elections at the urging of American representatives, not official, don’t misunderstand.

But at the urging of people in our Government to help to beat the Communist, citizenship is forfeited.

This is nothing like the Mackenzie case at all.

One who votes in a foreign election doesn’t necessarily divide his nationality or his allegiance, certainly not in all cases and under all circumstances as is provided by the statute, nor do I believe that it can be fairly said that it causes international complications.

It seems to me that if a foreign country is willing to let an American citizen vote in a foreign election, in its election, it is no more a matter of international complication and controversy than is the fact that many American States did and some still do permit foreigners to vote in our elections.

I might add only this.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

This is the only country in the world that makes voting in a foreign election a cause of lost of citizenship.

Felix Frankfurter:

Mr. Horsky —

Earl Warren:

Cause of what?

Charles A. Horsky:

Citizenship.

This is unique among the statutes of the world.

Yes, sir?

Felix Frankfurter:

Of course you — you don’t have to take on more than is necessary and you naturally say you accept Mackenzie and — and go off from there and this isn’t Mackenzie, I understand that.

But the logic of it, I mean reasonably and rationally, if Congress may say that whenever an American woman marries a foreigner that involved international complications, and therefore, the citizenship may be terminated.

I find it very difficult for us to sit here in judgment on Congress in determining that a person who throws in his lot with a political society of another nation may not equally well complicate foreign relationship.

Charles A. Horsky:

Well, perhaps I misunderstood your question.

But what do you mean by throwing in his lot with a foreign political society?

Felix Frankfurter:

Well, being outside of this country forever and not responding to the call of this country, to serve this country in time of war et cetera, et cetera.

Charles A. Horsky:

Well —

Felix Frankfurter:

We get into the realm of sitting in judgment on what Congress conceived to be the consequences of such a relationship.

Charles A. Horsky:

You do —

Felix Frankfurter:

And automatically — to say automatically that every American- born wife maybe get international complications with a non-American husband, there’s a long draft on my —

Charles A. Horsky:

Well —

Felix Frankfurter:

— acceptance.

Charles A. Horsky:

— I — I agree, Your Honor, except that I would say two things about it.

And the first thing I would say is that Mackenzie against Hare was decided a long time ago, 1915 before the Nineteenth Amendment, before a great many other things —

Felix Frankfurter:

I’m consciously troubled, Mr. Horsky, when I’m told by counsel that something as pretty —

Charles A. Horsky:

[Laughs]

Felix Frankfurter:

(Inaudible)

Charles A. Horsky:

Well, I suggest that in terms of the status of women, it is quite a long time ago.

And I think that if you — the opinion itself reveals the postulates upon which Mr. Justice McKenna was taking his —

Felix Frankfurter:

I don’t think that’s quite accurate because Mr. Justice McKenna himself recognized the great change taking place in the conception of the law towards women.

Charles A. Horsky:

That’s right.

But he did not think that it had gone to the point where it is today.

I’m simply suggesting, Your Honor, that were Mackenzie against Hare to be argued today with exactly the same statute, I very much doubt that this Court would reach the same conclusion.

Felix Frankfurter:

I — as I said in my opening, you have a right to say you don’t — you accept that, nevertheless, this is different.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Felix Frankfurter:

I’m suggesting that the difference is not really irrationally definable.

Charles A. Horsky:

Well, I am — I hope that I am not thinking as urging you to endorse Mackenzie —

Felix Frankfurter:

No.

Charles A. Horsky:

— against Hare.

I agree that I do not wish to try and take on Mackenzie against Hare if it is unnecessary to do so.

But I do say, as I have just said to you, that if Mackenzie against Hare were to come up again today, I think it would be quite likely that it would read — it would be decided the other way.

May I also point out, Your Honor, that in Mackenzie against Hare there was not a forfeiture of citizenship.There was a suspension of citizenship.

Mrs. Mackenzie could get her citizenship back.

Felix Frankfurter:

If she got a divorce.

Charles A. Horsky:

Or if her husband died.

Felix Frankfurter:

Yes.

Charles A. Horsky:

It — it was within her power at any rate to get it back, it is not — these are not within the power of Mr. Perez.

Felix Frankfurter:

Yes, it is.

He could become naturalized.

Charles A. Horsky:

No, I — well, I don’t know whether we could or not, I doubt it —

Felix Frankfurter:

Well, I mean he —

Charles A. Horsky:

— under the circumstances.

Felix Frankfurter:

The contingencies of a woman’s husband dying and getting a divorce, perhaps the contingencies are much more probable in — it’s more mathematically likely in 1957 than in 1915 (Voice Overlap) —

Charles A. Horsky:

[Laughs]

Well, let me — let me add one thing before I come to the part of the statute which seems to bother you the most.

I’d like to add one more about this matter of voting.

And that is to refer you briefly to the reason why that provision is in the statutes, something of its history.

I think it will indicate to you that it does not have any relationship, in fact, to the problem of international complications or international external affairs.

In 1935, Congress was very much exercised, was displeased with the conduct of certain Americans who were taking an active part in the Nazi Government of Germany, to some extent in the fatuous Government of Italy, and particularly with a great migration of Americans to vote and desire plebiscite in January 1935.

In February 1935, a bill was introduced in Congress and reported favorably by the Committee on Immigration and Naturalization which explains — which was in — practically identical in substance with the present subsection (e).

And the Committee explained that its purpose was to provide a penalty of loss of citizenship for anyone who thereafter voted in a foreign election.

That bill didn’t become a law but it did become a part of the 1940 Act.

15 years later, in explaining this same history to the Congress which I have just explained, the Judiciary Committee of the House said that it agreed and I quote, the purpose of subsection (e) was to serve notice and I quote, “Citizenship does not carry with it any loophole through which voting in foreign states may be done without penalty.”

There is no doubt that Congress does not regard with favor Americans voting in foreign elections.

I am not prepared to say that there is no way in which Congress can make that pleasure effective.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

But I do say is that it cannot make it effective by decreeing the loss of a constitutional right for the doing of that act.

Felix Frankfurter:

Before you sit down, I’d like to put one question to you and perhaps Mr. Davis will deal with it when he rises to state his case.

I — you correct me if I’m wrong, but I only very quickly leap to your brief and do not find — and find that your position is, as you’ve argued it, that such legislation is unconstitutional.

You do not rest it on the mode by which that status is lost, namely, the administrative process rather than the judicial process, is that right?

Charles A. Horsky:

That’s right.

Felix Frankfurter:

I know —

Charles A. Horsky:

I — I do — I do rest it in connection with subsection (j) —

Felix Frankfurter:

Yes.

Charles A. Horsky:

— that it is not — he doesn’t have the protections of the criminal law (Voice Overlap) —

Felix Frankfurter:

Yes, I understand that.

But to be very specific, you must have some very good reason why you do not urge upon the Court.

Not that you’re not free to ask.

I put my question that you don’t think — draw upon the (Inaudible) that a judicial inquiry is necessary even in the case of a conceded alien or confessedly or complained about alien who insist upon his citizenship.

Charles A. Horsky:

Well, I — I do not, Your Honor.

Principally, because although perhaps inaccurately, I have assumed that this judicial proceeding which is available to review the administrative decision made by the Immigration and Naturalization Service suffices if a civil proceeding will suffice.

Felix Frankfurter:

That is — but as I understand they may misconceive a case.

As I understand it, he was kept out in the way any alien is kept out.

Charles A. Horsky:

He was in 1947.

Felix Frankfurter:

Yes.

Charles A. Horsky:

He got — he came in 1952.

Felix Frankfurter:

Yes.

You mean — but he — he is now to be deported.

Charles A. Horsky:

He is now to be deported.

Felix Frankfurter:

And therefore, the deportation proceeding — therefore, he is subject to the deportation proceeding.

Charles A. Horsky:

That’s right.

Felix Frankfurter:

He may have a judicial review of the claim that he’s a citizen.

Charles A. Horsky:

He has had it, Your Honor, in this proceeding.

Felix Frankfurter:

You mean before a judge?

Charles A. Horsky:

Before a judge (Voice Overlap) —

Felix Frankfurter:

But I want to know is whether —

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

Except —

Felix Frankfurter:

— before he came, this — we have to deal with the statute here.

Charles A. Horsky:

That’s right.

Felix Frankfurter:

And this is an incoming person who asks to come in and the board of — and the Immigration Service going up to the Board of Appeals says, “Oh, no, you’re not an American citizen.”

Under this statute, can he go into a Court?

Charles A. Horsky:

Well, I’d — I’m not — I frankly cannot answer that question, I’d have to guess.

But that is not this case.

I —

Felix Frankfurter:

No, but in construing the statute, I have to consider it.

Charles A. Horsky:

Well, in — in this case, the man is in fact in the country, has had a hearing before the Board of Immigration Appeals and then has appealed to the Courts to review that determination under the Declaratory Judgment Act in the appropriate (Voice Overlap) —

Felix Frankfurter:

What kind of a review, de novo?

Charles A. Horsky:

De novo.

Felix Frankfurter:

De novo.

Charles A. Horsky:

I believe it was de novo, is it not?

Felix Frankfurter:

So that — so that the question then is narrower whether even judicially if he’s in the country, his citizenship may be found not to exist any longer.

Charles A. Horsky:

Yes.

Felix Frankfurter:

But not the other case we have before us?

Have we in the other cases, an incoming alien?

Charles A. Horsky:

I — I would not like to answer that Your Honor, I’m not sure.

Felix Frankfurter:

Maybe the Government would say that he would or wouldn’t or maybe that’s a hypothetical case but this is one statute.

It doesn’t deal merely with people who are here.

Charles A. Horsky:

That’s right.

Felix Frankfurter:

And had lost it.

Charles A. Horsky:

That’s right.

Felix Frankfurter:

Does it?

Charles A. Horsky:

That’s right, it does not.

It —

Felix Frankfurter:

And I don’t know how —

Charles A. Horsky:

This man —

Felix Frankfurter:

— maybe he couldn’t construe it distributively, assuming it would sustain constitutionally and then add on that mode of procedure to an incoming American citizen who was stopped by being told he has forfeited his citizenship.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Charles A. Horsky:

Well, then certainly it should not be overlooked in this case, Your Honor, that this man is subject to a deportation order.

And if the Government is correct, the doing of these two acts will result in his banishment from the United States.

Felix Frankfurter:

Yes, I understand already.

Charles A. Horsky:

Now, just one word before I close on subsection (j), remaining out of the country to avoid military service.

In this case, Congress has specified that a criminal act, draft evasion, which carries heavy criminal penalties in this country shall be punished still further by the loss of citizenship.

This seems to me even farther from Mackenzie against Hare.

The act that we’re talking about now has nothing to do with the acquisition of a new nationality or a new allegiance.

I don’t mean to say that draft evaders have a higher regard for their civic responsibilities, clearly not, but the same could no doubt be said for others who leave the United States to avoid the consequences of criminal acts.

But here, my point is that there is clear evidence that Congress has undertaken to impose a criminal penalty without the time for — without affording the safeguards of the criminal law.

We have outlined that in the point 3 of our brief.

I will not, I see, have time to elaborate it here.

I call it to your attention only to say that even on the Government’s theory and quite apart from the arguments I have made on Mackenzie against Hare, we think that subsection must fall.

Earl Warren:

Mr. Davis.

Oscar H. Davis:

Mr. Chief Justice, may it please the Court.

There are now on the docket of the Court, four cases involving issues of loss of nationality.

Three of them are being argued today, tomorrow and one still pending on petition for certiorari.

I think it may be helpful if I run through briefly the cases and the issues involved.

In the present case as Mr. Horsky has stated, the only issue is the validity of Section 401 (e), voting, and Section 401 (j), draft evasion, of the 1940 Nationality Act.

In the case which follows, the Nishikawa case, the issue of constitutional validity involves Section 401 (c) that is service by a dual national in the army of his other state.

There is also in that case a statutory procedural issue of duress.

In the third case, the Trop case, number 710, the issue is the constitutional validity of 401 (g) relating to desertion from the armed forces and conviction thereof during time of war.

There was also a subsidiary issue of what the meaning of desertion is as a statutory matter in that case.

And not set for argument is the Mendoza-Martinez case, number 623, which also involves the validity of Section 401 (j), draft evasion.

There is no other issue in that case at all.

So if you take these four cases together, the Court is faced with the issue of the validity of four subsections of Section 401 of the 1940 Nationality Act, service in a foreign army by dual national, voting, desertion and draft evasion.

I stressed the fact that as the 1940 Nationality Act in each one of these four cases and not the 1952 Immigration and Nationality Act because the 1952 Act is in some respects different.

And the cases you have before you, shall I say, bear on that Act in — only insofar as the provisions were incorporated identically or without substantial changes.

The facts have been —

Felix Frankfurter:

Are they all deportations, Mr. Davis?

Oscar H. Davis:

No, Mr. Justice.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

Three of them — two of them are deportations, one is an exclusion case.

The present case is Perez as deportation.

Felix Frankfurter:

Yes, I understand.

Oscar H. Davis:

The Nishikawa case, the next one is an exclusion case.

The third — the — the Trop case doesn’t involve deportation or exclusion at all.

It’s a man who wants a passport and the passport was refused on the ground he is no longer a citizen.

Felix Frankfurter:

Well, the next case will raise my — my problem.

Oscar H. Davis:

I don’t think it will, Mr. Justice —

Felix Frankfurter:

Well, I mean —

Oscar H. Davis:

— as I will say in a moment.

Felix Frankfurter:

All right.

But it is exclusion?

Oscar H. Davis:

That’s right.

The reason, Mr. Justice, it will not raise your problem is that this arises under the 1940 Nationality Act.

Under that Act, there was Section 503 which provided for a de novo declaratory judgment action for any claim of citizenship, whether it was through exclusion or deportation.

It is somewhat different in the —

Felix Frankfurter:

Is this the part of the (Inaudible) business?

Oscar H. Davis:

That — that’s right.

And — and it’s somewhat different in the 1952 —

Felix Frankfurter:

All right.

Oscar H. Davis:

— Act but in the cases you have before you, there was by right of law a de novo judicial determination in each of these four cases.

Felix Frankfurter:

I am more satisfied on that point.

Oscar H. Davis:

Mr. Horsky has correctly stated the facts.

I would just like to summarize the facts in the present case, the Perez case.

And if I also may in the Mendoza-Martinez case which is not set for argument because that also involves Section 401 (j), draft evasion and has a difference which may or may not be significant.

In the present case, here is a man who lived in Mexico from the time he was ten years of age.

He, during the war in 1943 and 1944, came into this country as a Mexican, claiming Mexican nationality.

He then returned to Mexico after the — this provision relating to expatriation or loss of nationality for draft evasion was enacted in September 1944.

After that time, he returned to Mexico and stayed in Mexico until 1947, I believe.

And it is admitted on this record that he stayed there for the purpose of draft evasion.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

He also voted in the presidential election in Mexico in 1946 by his own admission.

One matter that I would like to stress because there is some reference into the brief — in a brief to the fact that he may not be a Mexican is that he three times sought admission to this country as a Mexican national.

In fact, the reason why he is now being deported is he came illegally into the country claiming Mexican nationality.

And then after some time reported himself to the immigration authorities and said, “I am not really a Mexican.

I’m an American citizen.

I want to adjust my status.”

And of course they began deportation proceedings.

In the Mendoza-Martinez case, that petitioner resided in this country from 1922 at birth until 1940, who registered for the draft.

In 1942, he went to Mexico and remained there until 1946 for the admitted purpose of evading the draft.

He then returned to this country and in 1947, pleaded guilty to a — accusation of draft evasion and was sentenced, and I believe served a year.

Then — he then went back to Mexico.

And in returning to this country in 1952, he then returned to — he then returned to this country in 1953, I believe, and was then picked up for having entered the country illegally, being a Mexican national without the proper entry permits and papers.

Those are the facts in these two cases which involved Section 401 (j), draft evasion.

As to the general power of Congress over loss of nationality, I think it’s important if I may to try to clarify an ambiguity in the word expatriation.

The word expatriation has two meanings.

It has the meaning of a person who voluntarily renounces his American nationality and voluntarily acquires the nationality or allegiance of another country.

And it is frequently used in that sense throughout our history and in some of the opinions of this Court.

But it has a broader meaning than that.

It has the broader meaning of loss of nationality which can be imposed by Congress even though the individual does not wish to give up his American nationality.

And it’s in that broader meaning that it has been used by this Court too.

In Mackenzie against Hare, Mr. Justice McKenna did not refer to Mrs. Mackenzie’s loss of nationality as an expatriation.

He said it was tantamount to expatriation.

It was akin to it.

He was referring to loss of nationality.

Now, the petitioners in these cases have raised different — different arguments for saying that Congress has no constitutional power to pass these statutes.

The broadest argument which —

Harold Burton:

Mr. Davis —

Oscar H. Davis:

— is not —

Harold Burton:

— do you draw a distinction between loss of nationality and loss of citizenship or do you use them —

Oscar H. Davis:

I — for this purpose, I — I use them exactly equivalent.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

And I shall have occasion to point out that the statute of 1865 which was the first statute which provided for a loss of the rights of citizenship and with relation to draft evasion and desertion was construed administratively, and within its own terms as a loss of nationality statute rather than merely a loss of the rights of — of citizenship.

The — the petitioner’s stand on different propositions, first, which is the broadest position which is not the position taken by Mr. Horsky in this case is that Congress has no power whatsoever to do anything more than to aid or implement a renunciation of — of citizenship by an American citizen voluntarily undertaken.

That is Congress has no power whatsoever to impose loss of nationality in the absence of the consent of the citizen to the loss of nationality.

As I understand the brief, that is the position taken in the succeeding case, the Nishikawa case.

Earl Warren:

Did Mr. Horsky go a little farther than that, Mr. Davis?

You say that if the — if it was essential to the Government in its external relations that there was some latitude?

Oscar H. Davis:

Yes, that’s the second position.

I — I meant to say that the broadest position was not the position taken by Mr. Horsky.

He has taken it by the brief as I — as I read the brief in the next case, the Nishikawa case.

Mr. Horsky’s position is somewhat narrower.

He concedes that the Government — that Congress has power if the citizen acquires the nationality or allegiance of another government.

I don’t believe he went further than that in relation in — with respect to international relations.

I think he limited it to the acquisition of another nationality or another allegiance regardless of the individual citizen’s desire to give up his American citizenship.

The third position which is the one that the Government takes in these cases is that the power of Congress is a power inherent in its — in — in the sovereignty of the United States as a nation among the nations of the world, except to the extent that the power of Congress is limited by the specific provisions of the Constitution.

Congress has the same power to regulate nationality as all the other nations of the world.

The United Nations has collected laws concerning nationality then the volume which is published in 1954.

A quick survey of this volume will show that almost without exception, there may be a few, almost without exception, every nation in the world has provisions relating to nationality at birth, acquisition of citizenship and also loss of citizenship.

And it is our position that Congress has this same power except to the extent that it may be limited by the provisions of the Constitution.

And I shall in a moment discuss the limitations as we see it of the Fifth Amendment and the Fourteenth Amendment.

Now, the broad power that we think Congress has and which I — I may say was specifically confirmed in the Mackenzie and Hare opinion in a section which is quoted in our brief and which if I may, I’d like to read a few words to the Court.

Mr. Justice McKenna was dealing with the proposition that Congress had no power except to implement or confirm the consent of the individual citizen to lose her citizenship and he said this is wrong.

There are may be powers implied necessary and incidental to the express powers.

“As a Government, the United States is invested with all the attributes of sovereignty.

As it has the character of sovereignty it has the powers of nationality, especially those which concern its relations and intercourse with other countries.

We should hesitate long before limiting or embarrassing such powers.”

And he then goes on to say that in the case before him, the Mackenzie case, he didn’t think that — that there was much problem because he thought there was a reasonable basis for the view of Congress that the — having a wife of one citizenship and a husband of another might, and his word is might, he uses the word may, he doesn’t even say would, might embarrass the United States in its foreign relations.

I started to say before that the Government’s view of the source and extent of the power of Congress over nationality has a long history.

It is confirmed by the statutes which Congress has enacted.

We do not agree that Congress first attempted to exercise the power — the power which is involved here in 1940.

We think it attempted to do that and it did do that in the statute of 1865 which provided that deserters from the Union Army and those who went outside their districts to avoid the then draft, lost the rights of citizenship.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

In 1907, it passed the statute which was involving Mackenzie against Hare.

In 1940, it passed the statute which is before the Court.

In 1952, it elaborated on and in fact added two of the provisions for loss of nationality.

But it’s not only —

Earl Warren:

That’s the very distinction, Mr. Davis, between losing rights of citizenship and losing citizenship in the sense of nationality?

Oscar H. Davis:

No, Mr. Chief Justice.

In relation to the 1865 statute, it did use the term “rights of citizenship.”

But in that very same statute it provided that aliens should not — who deserted the army or who evaded the draft should not be able to become citizens, indicating that this was a matter relating to nationality and not only to the rights of citizenship such as voting.

That is the way it was administratively construed from the very beginning.

In —

Earl Warren:

Well, hasn’t the term “rights of citizenship” been used in — universally in this country in a — in a different sense?

Oscar H. Davis:

No, Mr. Chief Justice.

Earl Warren:

It seems to me that most States of the Union provide that when a man is convicted of a felony, that he — he loses certain rights of citizenship.

But it does not attempt — they do not attempt to say that he’s no longer a citizen of the State.

Oscar H. Davis:

I believe you are right in a certain sense, Mr. Chief Justice, because they — you lose certain rights of citizenship.

But the term “rights of citizenship” was used by Congress at this time in 1865 and for years before and years after as synonymous with citizenship.

If I may, I’d like to try to —

Earl Warren:

Yes.

Oscar H. Davis:

— prove that proposition.

Earl Warren:

Yes.

Oscar H. Davis:

As I said in this very statute, Congress said that if you evaded the draft and were — or were deserted and were an alien, you could not become a citizen.

In the famous expatriation statute of 1868 to which Mr. Horsky referred, which confirmed the general right of citizens to leave this country and to expatriate themselves, Congress said in that same statute, “We have invested aliens who have come to this country with the rights of citizenship,” meaning we have given them our nationality.

In another statute, which was passed in the middle of the 19th century, Congress provided that children of American citizen — citizens born abroad should be Americans.

But it also went on to say, “But the rights of citizenship shall not descend to the children of fathers who have never resided in the United States.”

And in the Weedin case, in 274 United States, Chief Justice Taft held for a unanimous court that the word “rights of citizenship” related to nationality citizenship and did not descend to the children of American — of fathers who had not resided in the United States prior to their birth.

The claim was that if he resided after they were born, it was enough.

And there are other statutes cited in our brief which refers to the term “rights of citizenship” as meaning nationality citizenship.

This is also the way in which, I believe, the 1865 statute was construed administratively.

In 1873, President Grant asked all the members of his cabinet to answer certain questions relating to the loss of nationality and expatriation.

And the replies of the various cabinet members are collected in the 1873 edition of Foreign Relations part two.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

Unfortunately, we did not include this in our brief.

So I’d like to mention to the Court that it’s in the 1873 issue of Foreign Relations, part two at page 1187.

In 1873, about less than nine years after the 1865 statute was passed and the Secretary of State, Hamilton Fish, in answering the questions relating to expatriation, discussed them generally and then he said, “And it will be remembered that Congress has — has asserted its right to denationalize its own citizens, and has defined one mode whereby the right of citizenship shall be forfeited, in the Act of March 3, 1865, which provides that.”

And he went on to paraphrase the statute relating to desertion from the army and draft evasion.

He used the words “Congress has asserted its rights to denationalize its own citizens.”

Earl Warren:

Would you mind giving me that citation again please.

Oscar H. Davis:

Foreign Relations 1873, part two, page 1187.

Felix Frankfurter:

Just as a matter of curiosity, what led to that inquiry by President Grant?

Oscar H. Davis:

Well, I was coming to that in a moment.

There was a great deal — throughout the 19th century.

There was a great deal of discussion and consideration about expatriation and whether it should be allowed and whether it should not be allowed and what conditions and mode.

President Grant proprietary to asking Congress for a statute on this subject asked all his cabinet members while he asked the ones who were not related to this matter, I don’t know.

But he asked them all for their views on certain specific questions.

He then said to Congress, “Please pass an expatriation statute.

We have treaties in this field but we do not have specific provisions.

We think it is necessary.

We think there should be a uniform law.

Here are the views of my cabinet officers.”

Felix Frankfurter:

These were written answers?

Oscar H. Davis:

These were written answers which are included in the Foreign Relations volumes, published in 1873.

Not only is this — was this the view of the Secretary of State in 1873, shortly after the statute was passed, but it was the view of the famous Citizenship Board of 1906 which Secretary of State Elihu Root setup with the Solicitor James Brown Scott and the Minister — then Minister of the Netherlands David Jayne Hill and the Chief of the Passport Bureau.

They made a very thorough study at the instance of Congress of all the laws of the United States relating to nationality and citizenship and they made recommendations.

And in their discussion, the one statute that they discussed as relating to loss of citizenship is this 1865 statute.

In 1940 or before 1940, in the 1930s, when Congress was considering the Nationality Act of 1940, Mr. Richard Flournoy who was the Assistant Legal Adviser of the State Department in charge of nationality matters and had been, I think since 1918 or 1919, testified that though the statute had the word “loss of rights of citizenship” and that there was some ambiguity in that is that it has always been interpreted by the State Department as being a loss of nationality or loss of citizenship statute.

Felix Frankfurter:

Where is this (Inaudible)

Oscar H. Davis:

No, it is a (Voice Overlap) — as a —

Felix Frankfurter:

Is it on House?

Oscar H. Davis:

It’s a — House Document 326, 59th Congress, Second Session.

William J. Brennan, Jr.:

Is that found in your brief?

Oscar H. Davis:

Yes, it is, Mr. Justice Brennan.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

And Judge Hackworth’s compilation in the 1930s also indicates that the State Department viewed this statute as a denationalization statute, not as merely relating to loss of certain rights as voting and so forth.

The courts which passed upon the — the statute in the 1900s — I mean in the 1800s, the 1870s and 1880s were of course not — not concerned with deportation or nationality in the national sense because the statutes of Congress at that time didn’t provide for deportation.

They were concerned with issues of voting.

But it’s significant to me that two of the great judges who wrote opinions on this statue, Jeremiah Smith in which — in New Hampshire and Justice Strong, later a justice of this Court in — in the Pennsylvania case, both referred to this as a deprivation or forfeiture of citizenship in flat terms.

I don’t wish to suggest to the Court that these cases resolved the issue.

I merely cite the — the way the courts referred to this statute as indicating that it was a statute relating to loss of nationality, loss of citizenship.

William O. Douglas:

That was 1865?

Oscar H. Davis:

The statute of 1865.

William O. Douglas:

No, that was in — in connection with criminal prosecution.

Oscar H. Davis:

There was a conviction — it was interpreted as meaning that there had to be a conviction for draft evasion or desertion, yes.

When Congress came in 1944 to put this statute into the books and made a change and if I may, I’d like to go back just a little bit to — to carry on the history.

This statute, which I have been talking about, was enacted in 1865.

It remained on the books until 1912.

It provided two things which are different today.

It did not require that a man leave the country in relation to draft evasion.

Any draft evader lost his citizenship.

And two, it did provide as Mr. Justice Douglas has pointed out that there must be a conviction or at least it was interpreted as providing that there must be a conviction.

In 1912, it was modified so as to apply only in peace time.

I mean not to apply in peace time, but to apply only in time of war.

And the President was, at the same time, given, specifically given the power to pardon for previous peace time desertions.

It existed during World War II as both Attorney General Biddle and Secretary of War Stimson stated in letters to the Congress in the — in 1944.

And in — in fact in — in 1924, President Coolidge saw fit to proclaim the — a pardon for all those who deserted the armies in World War II after the armies — before the formal peace there was a period between November 11th, 1918 and November — September, I think 1921, when there was technical war but there was no fighting.

And in 1924, President Coolidge pardoned these persons who — not those who were guilty of draft evasion, those who were guilty of desertion.

Well anyway, when Congress came in 1940 to enact the 1940 Nationality Act for reasons which are unknown, it did not carry this over.

It carried over the desertion provision of the 1865 statute.

As I mentioned that statute related to two crimes, desertion and draft evasion.

Congress in 1940 carried over the desertion provision.

It did not carry over the draft evasion provision.

So that when it was — the statute was enacted in 1940 it contained no provision for loss of nationality by reason of going abroad for draft evasion.

In 1944, Attorney General Biddle said a great problem had arisen in that respect.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

There were several hundred people who were believed to have gone to Mexico.

And as — as he proposed the provision which is now Section 401 (j) — subsection (j).

It was unanimously recommended by both the Houses of — by both the Committees and both House of Congress and was unanimously passed.

And Congress, specifically, did not wish to provide that there have to be a conviction, Mr. Justice Douglas.

They — they provided instead that there be judicial review to Section 503 of the Nationality Act.

That is court review, but there would not be a criminal conviction.

And the reason that they gave was that most of these people would stay abroad and there was of course a problem too of — of statute of limitations.

The only tolling provision in the federal statutes of limitation is for someone who flees from justice.

And there is not — it is not clear whether a person who stayed abroad for a long time would be fleeing from justice.

In any case, Congress did not wish to provide a — a conviction at that time though it specifically made sure that there would be de novo judicial review by court proceedings.

I’ve been in some ways a little ahead of my story because I wanted to point out to the Court that the view of — of the constitutional power which we propound to the Court has been accepted throughout our history.

I mentioned the statutes.

There were treaties in the — in the latter part of the 19th century, the Bancroft treaties and other treaties which also provided for a loss of nationality by — by a naturalized citizen going to live in the country of his original nativity for two years and such right.

There were bills and proposals made, most of them not adopted throughout the 19th century.

There were studies such as that that are mentioned by Secretary of State Hamilton Fish by the Citizenship Board of 1906.

And by a cabinet committee of — composed of — of Secretary of State, Hull, Secretary Perkins and Attorney General Cummings which made a study of this whole matter at the instance of President Roosevelt from about 1933 to 1938 and proposed what was, became in substance the Nationality Act of 1940.

All these committees and Congress by its own action indicated that it believed that it had a broad power, not a power limited as it has been suggested to the acquisition of foreign nationality or the acquisition of another allegiance.

This Court, we believe, has confirmed the breadth of that power.

Mackenzie against Hare has been mentioned.

I have read to the Court the words of Justice McKenna which indicated that in his view, there was — there is an inherent power of sovereignty which is broad and which the Court should hesitate long before it should embarrass or limit.

The other cases in this Court have all indicated even in holding that there was no expatriation, that Congress has the power.

In the famous case of Perkins against Elg, Mr. Justice — Chief Justice Hughes was very careful to say, “In the absence of treaty or statute.”

He said, “In the absence of treaty or statute, expatriation must be voluntary.

It cannot be accomplished by a minor abroad.”

But he twice said in the absence of treaty or statute.

In the Mandoli case in — three years ago, Mr. Justice Jackson said the same thing.

He talked about voluntary expatriation or involuntary forfeiture of citizenship.

There have been a mass of lower cases — lower court cases in this figure and only in two instances has there been any responsible suggestion that these statutes are unconstitutional.

Chief Judge McLaughlin in the District of Hawaii has invalidated most of these provisions of the 1940 statute.

He has not been followed by his own Court of Appeals in the Ninth Circuit and — or by any other court with the exception of the dissent of Chief Justice — Chief Judge Clark in the Trop case.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

That’s the third of these three cases which is to be argued, which is the only other indication of invalidity which — which exists.

Hugo L. Black:

Do you state in your brief what the conditions thereof or what is the scope of the sovereign power to take away citizenship?

Well, what — where would the limit be?

Oscar H. Davis:

Well, we believe, Mr. Justice Black, that it has to be limited by the objectives for which the power exists and also by the Due Process Clause of the Fifth Amendment.

We think that Congress has the right to take into account two general sets of factors.

One — one factor are — are those which deal with our relations with foreign countries, any — a matter which would lead to embroilment with a foreign country, a matter which would lead to a conflict of allegiance or conflict of nationality with a foreign country.

Then we also think that Congress has the power to consider acts, activities and conduct which are basically inconsistent with the cardinal elements of American citizenship.

A man —

Hugo L. Black:

What about larceny?

Oscar H. Davis:

Larceny?

I would say that under the present conditions, that is not a cardinal — a man who commits larceny is not violating a cardinal obligation of American citizenship.

Draft evasion is another matter.

It isn’t — in the selected draft cases in 1917, the Chief Justice then said it was the highest duty of the citizen to respond to a call in war time.

And — and of course, it involves embroilment with — with foreign countries.

Hugo L. Black:

What about refusing to answer questions relating to foreign affairs?

Oscar H. Davis:

To foreign affairs?

Hugo L. Black:

Yes (Voice Overlap) —

Oscar H. Davis:

I cannot, of course, give a categorical answer, Mr. Justice Black, because in each case there will be before Congress a history, an experience which will inform Congress as to whether it should adopt the particular statute or — or not.

I do not know what Congress would have before it, if it passed such a statute.

All I would say is that each statute would have to be considered by this Court, if a matter came to this Court with relation to the requirements of due process, to the requirements of reasonableness in the situation and with relation to the — to the power of Congress, as in the power of Congress as the organ of our country in the — in the world of nations to adopt — to adopt a loss of nationality provisions comparable to those which other countries have.

Hugo L. Black:

I would judge it from your argument I thought.

I’m not saying it’s wrong.

I’m not saying it’s right.

I don’t know.

That what you are saying, in effect is, that so long as an Act of Congress, which takes away citizenship, has — has some kind of rational basis to support it, the Court should let it alone even though it’s to be taken away without a trial by jury in a court procedure.

Oscar H. Davis:

Well, there would be court procedure.

Hugo L. Black:

But I’m taking about a trial by jury indictment.

Oscar H. Davis:

Oh, there would be no criminal prosecution except, I would on that respect, if I may answer, Mr. Chief Justice.

Earl Warren:

Yes, you may.

Oscar H. Davis:

I would call attention to the fact that the other case which is not being heard, the Mendoza-Martinez case, there was a conviction for draft evasion on — in that respect.

Audio Transcription for Oral Reargument – October 28, 1957 (Part 2) in Perez v. Brownell

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Oscar H. Davis:

That’s not true here.

Hugo L. Black:

I was simply asking this (Voice Overlap) —

Earl Warren:

Yes.

Our position is that in this field as in so many others, the Court has to weigh in the balance the powers of Congress and — and the reason the — the powers of Congress, the detriments of the citizen has to weigh in the balance the cherished status of citizenship as this Court has said, it’s a precious and cherished status.

It has to weigh that in the balance in deciding whether it is reasonable and rational in the circumstances for Congress to impose this — this requirement.

As in so many other instances, it’s a matter of — of weighing.

And unless the Court can say that Congress was arbitrary, there was no rational basis then we think that there can be no invalidation of the statute.

Tom C. Clark:

Do other statutes have the same somewhat (Inaudible) as to draft evasion?

Hugo L. Black:

What — what I do know, Mr. Justice Clark, is that Mr. Flournoy, the Assistant Legal Adviser of the State Department, who was a great expert in this field, wrote an article in the Encyclopedia of Social Sciences in 1931, which is before the passage of the 1940 Act on — on the subject of expatriation.

And in the course of that article he said, “The laws of various states in that country, his foreign country, contain provisions under which nationality is lost by act other than voluntary naturalization in foreign countries.

Among these may be mentioned, permanent departure from the country, residence abroad for a specified period, failure to return in war, evasion of military service, acceptance of decorations conferred by foreign countries, marriage of a woman national as to an alien.”

So I think I have not made a thorough survey but on the basis of that, there have been in the past and there are still today.

I think statutes of this type on the books of the countries.

Oscar H. Davis:

May I answer Justice Clark’s question, Your Honor?

Earl Warren:

Yes, you may.

Oscar H. Davis:

The footnote on page 22 of our brief.

Thank you.