Trop v. Dulles

PETITIONER: Albert L. Trop
RESPONDENT: John Foster Dulles, Secretary of State
LOCATION: Military Stockade

DOCKET NO.: 70
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 356 US 86 (1958)
ARGUED: May 02, 1957
REARGUED: Oct 28, 1957 / Oct 29, 1957
DECIDED: Mar 31, 1958

ADVOCATES:
J. Lee Rankin - Solicitor General, Department of Justice, for the respondent at reargument
Oscar H. Davis - for the respondent at argument
Osmond K. Fraenkel - for the petitioner

Facts of the case

In 1944, United States Army private Albert Trop escaped from a military stockade at Casablanca, Morocco, following his confinement for a disciplinary violation. A day later, Trop willingly surrendered to an army truck headed back to Casablanca. Despite testifying that he "decided to return to the stockade" when he was picked up, a general court martial convicted Trop of desertion and sentenced him to three years at hard labor, loss of all pay and allowances, and a dishonorable discharge. In 1952, Trop applied for a passport. His application was rejected under Section 401(g) of the amended 1940 Nationality Act, on the ground that he lost his citizenship due to his conviction and dishonorable discharge for wartime desertion. After failing to obtain a declaratory judgment that he was a US citizen, from both a district and the Second Circuit Court of Appeals, Trop appealed to the Supreme Court, which granted certiorari.

Question

Did Section 401(g) of the amended 1940 Nationality Act (the "Act") allow for an unconstitutional punishment by authorizing the expatriation of a citizen convicted of wartime desertion?

Media for Trop v. Dulles

Audio Transcription for Oral Reargument - October 28, 1957 in Trop v. Dulles
Audio Transcription for Oral Argument - May 02, 1957 in Trop v. Dulles

Audio Transcription for Oral Reargument - October 29, 1957 in Trop v. Dulles

Earl Warren:

-- Petitioner, versus John Foster Dulles, Secretary of State of the United States.

Mr. Solicitor General.

J. Lee Rankin:

Mr. Chief Justice, may it please the Court.

To continue my argument with regard to the Trop case, I'd like to first say that the authority for the Act of Congress, 401 subsection (g), consists of the war power, the power to regulate the Government of the armed forces, a power to raise and provide for the support of the armed forces and the Necessary and Proper Clause as it modifies those various powers.

Turning to --

Was the power inherent?

J. Lee Rankin:

I think there is an inherent power but I don't think it -- it has the same problem with regard to foreign affairs, in this case, that there is in Perez and Nishikawa and other cases before the Court.

There's certainly the inherent power to conduct the affairs of the United States as a sovereign which is also present.

Turning to the facts on page 4 of the transcript, I'd like to call briefly to the Court's attention the charge three that was involved in the court-martial.

There, it has stated that the 1st Lieutenant Dirr (ph) testified that on May 23rd of the year 1944, and you will recall that this man escaped from confinement.

It wasn't as though he just left the Army as such.He was in confinement on his first escape on May 9th, 1944, that's uncontradicted.

Then, after he was brought back on May 22nd, he again escaped and that was the time that the desertion charge was established against him.

Now, in regard to what happened when he was found to have deserted, 1st Lieutenant Dirr (ph) testified that on May 23rd, he was in a truck going from Meknes to Rabat and saw plaintiff who was hold and I think that's typographical, it should be told him, he was from the hospital and he and a companion boarded the truck and were turned over to the military police in Rabat.

Now, the next line, I think is important to our thinking about this charge of desertion and the seriousness of it.

Earl Warren:

What was his statement, General, to the truck driver that he did what from the hospital?

J. Lee Rankin:

He was from the hospital.

Earl Warren:

Oh, oh, just said he was from.

J. Lee Rankin:

Yes, sir.

And he and a companion boarded the truck and were turned over to the military police in Rabat.

They got in, the next sentence I think is quite important, they got in without any argument and made no attempt to leave the truck.

Now, I don't seem to think that that language is open to the construction that they were just asked to be taken and voluntarily were going back to get straightened around with their unit because there wouldn't be any reason for saying that they got in without any argument and made no attempt to leave the truck if it was all voluntary at that time.

Then --

Earl Warren:

Did the truck driver take them into custody?

J. Lee Rankin:

Yes, he took them back.

Earl Warren:

I know.

Did he take them into custody?

I mean, when -- when they got into the -- to get them into the truck --

J. Lee Rankin:

Well, the language is --

Earl Warren:

-- did it say that?

J. Lee Rankin:

-- only that it -- they boarded the truck and were turned over to the military police in Rabat.