United States v. Minker – Oral Argument, Part 2: United States v. Minker – November 14, 1955 (35)

Media for United States v. Minker

Audio Transcription for Oral Argument, Part 1: United States v. Minker – November 14, 1955 (35) in United States v. Minker
Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Earl Warren:

Mr. Frankel, you may proceed.

Marvin E. Frankel:

If the Court please, I had turned to the question on which the Third Circuit decided this case against the Government.

The holding that when the — when Section 235 (a) gave power to subpoena witnesses, it did not include power to subpoena a party who is under investigation and who might be a party to some subsequent judicial or administrative adjudication.

At page 41 of our brief in the footnote, we’ve collected a list, by no means, complete, of federal statutory provisions granting administrative subpoena power.

In all of this and in others, the statute provides power to subpoena witnesses.

And that word, “witnesses” in this context, whatever else it includes or excludes has always been understood to include, perhaps above all a person or a corporation, which was himself or itself under investigation, the person who in the language of the Morton Salt case is in the best position to give information and may be least willing to do so.

In this context, unlike the context of the discovery statutes the court below referred to, we think the word “witnesses” is perfectly clear.

Whoever it includes, it certainly includes a party who is himself being investigated.

In fact, the decision below, in a way, gives a reverse twist to the problem as it has usually be — been presented in this administrative subpoena cases.

As the Court knows, in cases like Oklahoma Press Publishing Company against Walling and others, the question is frequently been raised by a party subpoenaed whether he could be subpoenaed.

And the argument has frequently been made that he was not covered by the Act, not within the area of the administrative agencies concerned that there was no probable cause, no coverage.

Those cases have all assumed at the very least that if the person wants himself a proper subject of investigation, then he certainly could be subpoenaed and there is no need here, of course, to go into the extent of the inquiry into coverage just as it’s been presented in those cases.

I mentioned them only because they show vividly what we think is the clear error of the court below in its construction of the word “witnesses” in this kind of context.

Earl Warren:

What — what happens if the man doesn’t respond to the subpoena?

Marvin E. Frankel:

Well, in this case, as in practically all the federal statutes, the administrative agency has no power of compulsion.

It is authorized to go to a District Court as the Immigration Service did in this case to seek an order compelling obedience to the subpoena and the sanction —

And then it found nothing.

What is the order of subpoena?

Marvin E. Frankel:

The order is simply an order of the Court directing, commanding obedience to the subpoena.

And it is in this particular case, the disobedience of that District Court order that led to the judgment of content.

Earl Warren:

But that it informed, it’s an order of directing obedience to the subpoena.

Marvin E. Frankel:

That’s correct, Your Honor.

Hugo L. Black:

And does he have any discretion as to what is the issue but —

Marvin E. Frankel:

He has their — whether it be described as discretion or something else.

There, it is not an automatic rubber stamp operation as the decisions go.

A party may contend that a subpoena is —

Hugo L. Black:

What — what’s the section?

Marvin E. Frankel:

— pardon?

Hugo L. Black:

What’s the section?

Marvin E. Frankel:

Well, that — the — the provision for District Court enforcement is a continuation of Section 235 (a) and it — it appears on page 53 of our brief.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Marvin E. Frankel:

At the end of the sentence, which I read only incompletely, providing for the subpoena power it says, “Into that end, the Attorney General and the immigration officers may invoke the aid of any Court of the United States.”

And then, it goes on, “And to provide for an order by the District Court, compelling obedience to the subpoena with the sanction for disobedience of that order a possible judgment of content.”

The Court can refuse.

Marvin E. Frankel:

The Court can refuse it and of course there are —

Felix Frankfurter:

Can refuse it.

Refuse it.

Marvin E. Frankel:

Refuse to grant the Court order of compulsion, that’s right, Your Honor.

A party may come into Court and assert that a subpoena is oppressive or unfair or that it seeks information that is not within the competence of the agency to demand or request as our friend on the other side points out, if the immigration Service sort to ask a question about some subject wholly outside its field about a person’s tax returns unless it could show some relevance to the enforcement of this Act, that might be a proper basis for opposing a subpoena, or in any particular case, the claims have privilege —

How — how do we know that?

Was this subpoena that — suggesting before I will come and testify the immigration proceeding in —

Marvin E. Frankel:

Well, in — in this case, as in the Falcone case, the subpoena itself does not state the subject matter.

Here, on the argument, on the motions to quash the purpose of the investigation was made clear.

In Falcone, in the order to show cause why there should not be an order of compulsion by the District Court.

Stanley Reed:

Motion to quash what?

Marvin E. Frankel:

Pardon?

Stanley Reed:

Motion to quash what?

Marvin E. Frankel:

In this case, a motion by Minker, to quash the subpoenas.

Stanley Reed:

Which had been issued by the Immigration —

Marvin E. Frankel:

Which had been issued by the Immigration Service —

Stanley Reed:

— and not to quash the action of the Court compelling him to appear.

Marvin E. Frankel:

Well, the motion to quash the subpoena preceeded the later order, compelling him to appear.

The chronology is this, the subpoena was issued before the return day, he moved to quash the subpoena, he moved in the District Court to quash the subpoena.

His motion was denied.

He nevertheless failed to respond to the subpoena.

Then, The Service, the Immigration Service, through the United States Attorney went to the District Court for an order of compulsion, and the only serious issue that have been presented on the motion to quash, that is the power to issue a subpoena of this kind under 235 (a), that issue having been resolved on the hearing and in the opinion on the motion to quash and order of compulsion followed.

Stanley Reed:

He made the motion to quash in the District Court?

Marvin E. Frankel:

That’s right, Your Honor.

All the proceedings in this case occurred in the same District Court before the same District Judge.

Although, I take it that it would not be necessary in every case.

Stanley Reed:

Until that, there was a subpoena that had no compulsive power?

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Marvin E. Frankel:

That’s correct, Your Honor, just like —

Stanley Reed:

And then he made a motion to quash it.

Now, that’s —

Marvin E. Frankel:

Well, his motion to quash —

Stanley Reed:

Why — why would he pay any attention to it at all?

Marvin E. Frankel:

He might pay attention to it because he wanted at the earliest opportunity to establish his claim that there was no power —

Stanley Reed:

What if there’s no —

Marvin E. Frankel:

Well, I don’t think the propriety or impropriety of his bringing on that motion presents any special problem to the Court now, because following the denial of the motion, he still refused to obey and then we have an order of the District Court compelling obedience and the judgment of content which is the judgment from which the appeal was taken.

So, I suppose that whether we assume the motion to quash was ill-advised, or premature or not, makes no difference at this point.

Stanley Reed:

Well, Mr. Frankel, is there any distinction between this kind of a proceeding and — and the proceeding of — of deporting a man or excluding him, those being administrative proceedings only but — but this Section 340 provides for a judicial proceeding to — to cancel the citizenship of a — of a person?

And not only that, but it states how the judicial proceeding shall be initiated.It shall be initiated upon affidavit, showing good cause therefore by the United States Attorneys.

Now, isn’t there a distinction between those two kinds of proceedings so — so that the — the subpoena power in taking a testimony of witnesses in the administrative procedure might be different from that in — under this Act?

Marvin E. Frankel:

Well, we think not, Your Honor.

And in great many of these provisions we cite, relating to administrative, investigative subpoena power which is what concerns us here.

The Acts to which they relay, contained provisions for proceedings of one kind to another in Court, civil or criminal.

Now, it’s always been clear that there was no inconsistency between those provisions for court proceedings and the authority to use an administrative subpoena for investigative purposes.

The investigative subpoena is used and to bring it to this context, it’s used to determine whether there is the good cause that or to exist before a — an action is brought to denaturalize the person, whether it — whether the good cause exist in terms of the affidavit or in terms of knowledge of the U.S. Attorney in this problem and another case pending that — that I won’t go into.

But the agency in every case, whether it’s under the Federal Trade Commission or whether it’s the SCC that’s simply determining whether somebody has solved securities fraudulently or whether it’s the veterans administrator determining whether a school under the GI Bill has committed a fraud or an alleged veteran has fraudulently obtained rights or claims.In every one of these cases, the agency may be and frequently is seeking to determine whether it ought to go to Court to prosecute this person, either civilly or criminally.

Felix Frankfurter:

Well, the scheme is — this — this is a scheme based on the Brimson, the procedure in the Interstate Commerce Act originally formulated the Interstate Commerce Act they have stated in the Brimson case, am I right about that?

Marvin E. Frankel:

It dates from that at least, yes Your Honor.

You have — and — and many decisions, I might say, make this distinction between the power of administrative investigation which this Court has from time to time compared to a grand jury’s proceedings or a pretrial discovery between that on the one hand, and the judicial proceedings on the other hand that the investigating agency may be authorized or under a duty to bring inappropriate circumstances.

So, we think the court below was wrong when it said that there was a conflict or an inconsistency between the creation on the one hand of a judicial proceeding for revocation of fraudulent certificates of naturalization.

And our claim on the other hand that the Immigration Service could use the subpoena power in its investigation to determine whether such a case ought to be brought.

That — that is a familiar pattern of administrative investigation followed by appropriate judicial proceedings.

And as — as I say, the statutes, which have conferred the subpoena power, refer repeatedly in all of these instances cited in our brief and in others simply to witnesses, and that in every case includes at least the person who is under investigation.

Now, this does not mean that either at the administrative stage or at the judicial stage, any of the protections of a person are denied.

The Fifth Circuit, which like the Second Circuit, has agreed with us on this problem, has had occasion recently to uphold, for example, a claim of privilege by a person subpoenaed in an investigation of this kind.

And where a claim of privilege is appropriate, we assume that it will be asserted and vindicated in the Courts which are the only agencies that have any power of compulsion of — in this area.

So, in short, agreeing with the court below and the other two circuits that investigations of this type are covered by 235 (a).

What we assert in this case is that the narrow basis of decision of the court below is incorrect and that the naturalized citizen whose certificate is being inquired into may be subpoenaed in such an investigation.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Hugo L. Black:

Does the District Attorneys have any power to summon witnesses in criminal malice before themselves?

Marvin E. Frankel:

They don’t have generally a subpoena power, Your Honor.

Hugo L. Black:

Yes.

Marvin E. Frankel:

No, there is no — as far as I know.

Felix Frankfurter:

Generally or particularly.

Marvin E. Frankel:

That’s right.

Hugo L. Black:

Do you know whether they do in any of the State?

Marvin E. Frankel:

I don’t know, Your Honor, by a subpoena.

And of course, there, you run into problems of self incrimination which in a criminal context —

Hugo L. Black:

But you wouldn’t in here, would you?

Marvin E. Frankel:

We think not, Your Honor.

Hugo L. Black:

I thought you said that the Fifth Circuit has had the agent to sustain that privilege?

Marvin E. Frankel:

Yes — not well, in — in the criminal context, the — the privilege may well be a privilege not to be subjected to inquiry at all.

Here, in a — in an appropriate case, a person may say that question that you’re undertaking to ask me is improper and I plead my privilege to it, and that kind of claim may be upheld.

Hugo L. Black:

Does this statute require that the — in summoning a man to appear before this agency, or I mean this — who does he appear before?

Marvin E. Frankel:

He appears —

Hugo L. Black:

(Voice Overlap)

Marvin E. Frankel:

— ordinally before an immigration officer.

Hugo L. Black:

That these are subordinate of the Attorney General.

Marvin E. Frankel:

These are subordinate of the Attorney General.

Hugo L. Black:

Now, does it provide that any notice shall be given to person who is summoned as to what he is to be there for.

Marvin E. Frankel:

The statute does not in terms provide for such notice, and I might say that this is equally true of all the other statutes we cite which simply say, usually in very broad language, “For the purposes of this Act or for any purposes which the administrator deems material to the enforcement of this Act, subpoenas maybe issued.”

Now, in an appropriate case, I think a person might properly demand some information as to the nature of the investigation.

In both of these cases, long before the proceedings began to win their way up through the Courts, these people knew.

And usually, it’s a practical matter before a subpoena is issued, there have been interviews and people do know.

But I want to emphasize because I think our opponents implicitly at least take a different view that as these cases have come up, there has been no issue presented as to the propriety of these subpoenas on grounds that they didn’t give adequate notice, and I want to make that accurately.

There was in the motion to quash an assertion that there was not adequate notion — notice of the nature in the investigation that the fact was secured, and when Minker appealed to the Court of Appeals for the Third Circuit, that problem dropped out of the case.

Hugo L. Black:

How much secured, but noticed then it was here.

Marvin E. Frankel:

It was secured by the — the Immigration Service, stating the purpose of the investigation.

And the District Court —

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Felix Frankfurter:

Well, what was the — what does it say to you that —

Marvin E. Frankel:

The purpose is in investigation of the lawfulness of denaturalization of the respondent, Minker.

Felix Frankfurter:

Now, it’s fair.

It is a fair inference or was it there — wasn’t fair inference that the original subpoena is in notice that the inquiry for the record sought to legality of the citizenship and therefore was directed upon the denaturalization proceeding.

Marvin E. Frankel:

You ask is that a fair inference, Your Honor?

I’d say on this slim record, I would not be prepared to assert that you should draw that inference.

What I am saying —

Felix Frankfurter:

Well, does that — I thought that the explication of what the subject matter was, they told him as much, isn’t it?

Marvin E. Frankel:

Oh, yes.

By the time — you see, before he was ever ordered to obey the subpoena that is on his motion to quash at the earlier or at the latest.

He knew and Judge Welch in his opinion states the purpose of this investigation as an inquiry into petitioner’s naturalization obtained in 1945.

Felix Frankfurter:

Isn’t that it’s calculated for the free denaturalization?

Is that the objection of the —

Marvin E. Frankel:

That — that is unquestionably.

No, I — I would put it differently, Your Honor, I think.

I would say that this is an inquiry to determine whether there are possible grounds for a revocation proceeding.

As we point out in our brief —

Felix Frankfurter:

I accept yours for the — for the —

Marvin E. Frankel:

There are many such inquiries and relatively few.

Felix Frankfurter:

That’s what it faces, doesn’t it?

Marvin E. Frankel:

That is the possibility, which faces us, yes sir.

Felix Frankfurter:

Now, what I would like to ask you is whether in the other administrative subpoenas, the ICC, the SCC, that is the normal terminal of the inquiry, whether those inquiry — certainly, that doesn’t prove the ICC as I put it on that, that it’s somehow through this case.

But as to the other, these are investigations.

Would it make a difference even though there has any case come up in which in an investigation by the SCC or to the ICC and a man is asked to appear before the ICC or the SCC, the examiner at a time that to his knowledge, he’s committed under investigation by the grand jury.

Marvin E. Frankel:

At a time when it’s under investigation by the grant jury, I —

Felix Frankfurter:

Are there an instance where a man is deemed to be a witness in the general — in a general class, a witness at a time in the deportation of defendants.

Now, I’m well aware that — I’m not a — I’m well aware that a denaturalization proceedings not a criminal proceeding, in that sentence.

I’m also aware that if something partaking a very serious consequence, and therefore, the proceeding is really directed against the deprivation of an important, something there before of great importance.

What I want to know is whether the word “witness” is — is the relevant or descriptive, appropriate word for witness, who he is, a potential defendant, either in a criminal situation, a criminal proceeding or in a proceeding like denaturalization.

All of this is a matter of construction, whether when we — when authorities give it to summon witnesses is a natural dealing of the word to cover a person who will find himself next week in all likelihood to defend him of denaturalization proceeding.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Marvin E. Frankel:

We say that it is, and of course this —

Felix Frankfurter:

Yes, I know but all I am suggesting is there may be differences, not in a manner of constitutional law, but in a manner of construction that this is a statute.

It’s about — it isn’t a statute directed toward deprivation there before his rights.

The other administrative subpoena so-called are very appropriate facilities for the inquiry instances, industrial activity, economical activity.

Marvin E. Frankel:

May I answer him, Mr. Chief?

Earl Warren:

Yes, go ahead.

Marvin E. Frankel:

In — first, I want to start generally with the so-called regulatory situations and then I want to come closer to home with this denaturalization situation and the functions of the Immigration Service.

In all of the statutes, generally, the subpoena power exists for the purposes of this Act and —

Felix Frankfurter:

Of the particular Act.

Marvin E. Frankel:

Of the particular Act —

Felix Frankfurter:

Yes.

Marvin E. Frankel:

— which is commonly an Act including criminal, as well as civil fractions.

As the Court knows and among the places, it has been pointed, it’s in Mr. Justice Cardozo’s dissent in Jones against the Securities and Exchange Commission, but I think it’s a familiar learning that these investigations frequently do lead to criminal prosecution.

The fact that they may disclose or may lead to demands or requests for information, having a possible basis in the criminal prosecution is reflected I think in — in the common appearance in this statutes of compulsory testimony, immunity provisions, and in the cases where absence of such a provision claims that privilege have been asserted.

And the fact is that whether it’s in the Internal Revenue Service or under the Fair Labor Standards Act, or into the Securities and Exchange Act, administrative inquiries have served not infrequently as basis for criminal prosecution.

And you look at the cases on their face as somebody violating the record keeping requirements, or the minimum wage requirements.

The answer to that question and it is commonly to somebody who is charged, who is called in on subpoena.

The answer to that question may be a material fact in a criminal prosecution, and it turns out to be the case, not infrequently.

In this area, as the court below itself has held, subpoenas to potential deportees have been used for a long time, and have been upheld, and we are in an area that this kind of sui generis and I think it’s fair to compare closely denaturalization with deportation.

Both are serious matters.

Now, in deportation, the subpoenas have been used in just as where to inquire into grounds for possible deportation, and such a defender over the right of privacy as Mr. Justice Brandeis held for a unanimous court that answers to such question should be compelled, that’s Bilokumsky against Tod.

And so, when Congress provided this subpoena power for any matter, material and relevant in the enforcement of this Act, when you look at this Act, we think you realize that it does concern grave matters.

And there is a history of subpoenaing the person who is potentially liable to suffer from these serious sanctions.

And so, we say that there is no basis in the gravity of this for construing the word “witnesses” differently from the way it’s been construed in a precisely pertinent context for 70 years.

Earl Warren:

Mr. Frankel, I suppose under your theory of the case, the — the Government would have the right to take the testimony of this witness in the lawsuit itself, would it not under 340?

Marvin E. Frankel:

I think that’s conceded, Your Honor.

At least our opponent in Falcone conceives that we could get pretrial discovery, which is a —

Earl Warren:

And what would the Government suffer if it was — if their right to take this testimony was limited to the lawsuit that it provided for itself?

Marvin E. Frankel:

It’s hard to say whether the Government would suffer or naturalized citizens would suffer.

When the — pardon me — when the power of administrative investigation is given, it is given not simply to bring lawsuits but to see where the lawsuits should be brought.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Marvin E. Frankel:

In a great majority of the cases, they are not brought.

Now, I think it’s true that the argument against us is calculated to make it necessary or desirable that we bring more lawsuits and accomplish through the pretrial discovery with the subpoena issued by a District Court Clerk rather than a District Director of the Immigration Service, exactly at the same end, but as we note in our brief —

Felix Frankfurter:

Particularly different —

Marvin E. Frankel:

I think the procedure —

Felix Frankfurter:

— but particularly why would be different?

Marvin E. Frankel:

I think the procedure would be substantially identical, Your Honor, substantially identical.

The interrogation —

Earl Warren:

Well, does the — does the — the person who’s being investigated have the benefit of a Court to — to advise him and to see that the questions that were asked are proper or — or is it just this immigration officer that —

Marvin E. Frankel:

Well, their positions are not taken in a court room, neither is this inquiry made in the court room, but as these cases reflect and as Lansky and Savoretti which I referred to shows in a holding the deponent just as in a pretrial discovery, goes to the Court everytime he thinks something is being attempted that he ought to resist.

And that, as we see it, is — is not materially different in the administrative investigation from what it is in the pretrial discovery situation.

In both cases, it takes place in somebody’s office.

I think the —

Earl Warren:

So, as far as you see, the Government would suffer no injury if — if this testimony was required to be taken in this lawsuit where it would be under the jurisdiction of the Court?

Marvin E. Frankel:

I think the Government would suffer an injury in the sense that the public suffers an injury, one, where unnecessary lawsuits are insisted upon.

I think the same thing might be set at the administrative investigatory power under any of these statutes.

You might say, ”Why should we enforce this as it was written?”

You can do the same thing in pretrial discovery.

Our argument is that the power was given with respect to any matter, material and relevant in the enforcement of this Act that the power of administrative inquiry is a sanitary power, but the Government’s fact to gathering processes are necessary and important in the proper administration of the Act, and that this plain terms so it not to be paired away on a ground that some other procedure, other than the one we think Congress clearly authorized might throw more expense and more trouble to the Government and the parties ultimately accomplish the same end.

Earl Warren:

Well, it seems to me, the Government has provided against those irresponsible lawsuits that you seem to fair as against the citizen when it says that it should be the duty of the United States Attorneys with respect to districts upon affidavit, showing that cause therefore.

Marvin E. Frankel:

That’s right, Your Honor, but we don’t — we don’t have in these cases even — even when they’re brought in Court.

Unfortunately, we don’t win every single one of them.

Now, these investigations under the Attorney General’s regulations are not to be started unless there is a prima facie showing a ground for revocation.

So, we will assume, as we should, that in using the subpoena power, the officers will behave properly.

They won’t, at random, drag in the seven or eight or ten million naturalized citizens.

Then, if — in the ordinary case, the naturalized citizen is asked questions, in the ordinary case, he answers where he want subpoena may be used.

Now, supposed he either refuses to answer questions or refuses to obey a subpoena, under Bilokumsky against Tod, which reflects common experience in declaring that silence may be a very significant evidence, taking the alien — the naturalized citizen’s refusal to clear up these problems, together with the prima facie grounds, the immigration officer is supposed to have had to start the investigation.

I think in the normal case, we would certainly have enough to warrant bringing the suit under 340 (a) even assuming, which is not settled by this Court, that a good cause affidavit is a jurisdictional prerequisite to such a suit.

And there, we would be with a pretrial discovery, no more protection than the person investigated as of now, no less or more compulsion than he has now.

But only as we see it, one, a deviation from the perfectly authorized procedure Congress gave the Attorney General.

And two, a consequence in increased lawsuits that effective administrative investigation can avoid as it has avoided them in so many cases mentioned in our brief.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Stanley Reed:

Well, Mr. Frankel, on — on page 5 of the — of the record, that is as I understand is the order directing Mr. Minker to appear.

Marvin E. Frankel:

That’s right, Your Honor.

Stanley Reed:

Now, before that, he had — had the proceeding, which he sought to quash the subpoena.

Marvin E. Frankel:

That’s correct, Your Honor.

Stanley Reed:

And on its phase, that order doesn’t give him any notice of what this is going to be, why it’s become?

Marvin E. Frankel:

Well, but if —

Stanley Reed:

It refers to the fact that as the matter of Abraham Minker would respond that he’s notified to appear.

Now, is it your argument that he was told in the — in that former proceeding where he moved to quash the original subpoena because that has nothing to do with this case, I think, from what you said.

Marvin E. Frankel:

Well —

Stanley Reed:

That — that’s where he learned about —

Marvin E. Frankel:

I say he learned —

Stanley Reed:

— what it was?

Marvin E. Frankel:

He learned not later than that.

You see, Your Honor, there is no issue here as to whether this subpoena —

Stanley Reed:

Well, — well, this is an — an answer to subpoena, is it?

Marvin E. Frankel:

He’s ordered to appear?

Stanley Reed:

Yes, he’s ordered to appear.

Marvin E. Frankel:

Well it’s — you could call it that, it’s the order enforcing —

Stanley Reed:

It’s the only — it’s the subpoena that has any piece to it.

Marvin E. Frankel:

That’s right, Your Honor.

Stanley Reed:

And — and yet, it doesn’t show what he’s to appear for.

Marvin E. Frankel:

Well, it’s — it refers to the administrative proceedings captioned In re Abraham Minker — Minker in which he is to appear, the opinion beginning on page 13, and I refer specifically at page 14.

Hugo L. Black:

Where — where does it say that?

Marvin E. Frankel:

If you look at the last three lines of the —

Hugo L. Black:

Administrative proceeding captioned in Ray Abraham Minker.

Marvin E. Frankel:

Yes.

Now, the opinion rendered earlier than this order, in the — on the motion to quash observes and there is no factual dispute on it, on this that those proceedings concerned the possibility of revoking Minker’s certificate of naturalization.

Hugo L. Black:

Is it the order in that other proceeding in the record?

Marvin E. Frankel:

The opinion?

Hugo L. Black:

Yes.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Marvin E. Frankel:

Yes Your Honor, it begins on page 13.

Hugo L. Black:

The order — the order.

Marvin E. Frankel:

The order denying the motion to quash?

Hugo L. Black:

Well, is it the proceeding, the entire proceedings, are they printed in the record in the motion to quash?

Marvin E. Frankel:

Yes Your Honor.

The motion to quash is on page 12.

The order denying the motion to quash is on page 16, and from 13 to 16 appears the opinion.

And I want to emphasize because I think it would be a misfortune to trivialize this case at this point that assuming for the sake of argument that a person can properly oppose a subpoena, and I think in appropriate cases, he can because he hasn’t any information as to why he’s being called in.

There’s no issue here about that.

In this case, we are the petitioner, but there was no issue in the Court of Appeals on it and there’s no issue raised in Minker’s —

Hugo L. Black:

But why — why would he need to know in any administrative proceeding why —

Marvin E. Frankel:

I say assuming — assuming this is a legitimate basis for opposing a subpoena.

It is not open in this Court.

Now, on the remand, if such issues are ought to be raised, although, the people know perfectly well the subject matter of the inquiry, they may be considered by the District Court.

But we don’t think that these cases in one of which, we’ve petitioned and the other of which we have consented to certiorari, where this important general issue of statutory construction is — is presented should be put it away on these problems that never were raised at appropriate stages in these proceedings or have been abandoned before the case has came to this Court.

Felix Frankfurter:

During trouble, because I’m going to (Inaudible) because the subpoena doesn’t disclose of what it’s about and I raise the difficulty that the subpoena disclose it all too much.

Marvin E. Frankel:

I — I think that the Government’s pass in these cases is to meet your attack, Mr. Justice Frankfurter, because we think it’s clear, the nature of this inquiries and that — that it is in large part that where a nature that poses the problems of statutory construction.

Earl Warren:

Thank you.

Mr. Kossman.

Jacob Kossman:

Now, the Service contends that because the word “witnesses”, another statutory provision such as Federal Trade Commission, the whole list that the Government decided on page 41, an incomplete list has been held to mean witnesses there that by analogy, the word “witnesses” in the Immigration Nationality Act also means parties involved.

But the subpoena provision in 235 (a) is not the slightest in analogous for those subpoena provisions in the other agency that has been outlined at page 41, and not only is a different by looking at it, but the context, the legislative history and the spirit and the purpose of the statute supports our view that the Immigration Service is trying to smuggle something in here that has no business.

Now —

Earl Warren:

What is the difference between the subpoenas, Mr. Kossman, in those trade commission cases from this?

Jacob Kossman:

One difference is this, they have authority.

They have jurisdiction.

The subpoena in the SCC, commanding to do something, to find out something, bring in books and what not, the SCC can issue an order.

Here — here, the Immigration Naturalization Service, the immigration inspector, he has no jurisdiction over the naturalized citizen.

We’re dealing with the citizen here, not an alien.

The law has been clear over the — even before the (Inaudible) case and it was perfectly explained there that the judiciary has no voice when it comes to the alien.

But here, we’re dealing with the naturalized citizen.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

He has gone through this examination and reexamination in — by immigration inspectors and he’s won his judgment in Court.

So, to answer the question right off the back, they have no jurisdiction, whereas the Federal Trade Commission in the Morton Salt Act they can hand down a new order.

They say, “You have to do something about it.”

And the Court generally refers to — when the decree comes up back again to the agency to see whether they are complying with it.

Is the Court want to send back an order to the Immigration Naturalization Service, the immigration inspector to see whether they’re complying, whether the citizen has complied with what he has complied, otherwise he wouldn’t have obtained his citizenship?

Well —

Earl Warren:

That same thing would have applied to a Congressional investigation, wouldn’t it?

Jacob Kossman:

Well, in the Congressional investigation, of course, personal subpoena, the — there is a certain purpose that the — the Congressional Committee is supposed to ask questions about it, in line of that particular purpose.

And of course, if they don’t ask anything that’s relevant, the question would come up at that stage of the game.

But here, from the very nature of it, there’s a difference between this case and the Oklahoma case and all of those cases because this is not a question that the investigation is made in order to discover whether coverage will exist.

Here from, the outset, coverage never exists.

Now —

Felix Frankfurter:

Now, this kind of investigation in order to find out whether it should be put into the Court.

Jacob Kossman:

Yes, where do they get that power?

Felix Frankfurter:

Well, you don’t deny — you don’t deny power of Congress to — to provide for an investigation before the legal officers of Government find a piece of paper and impart a petitioner or give a magazine, or whatever it was.

You’re denying that they can have a prejudicial investigatory power in order to ascertain whether there should be a judicial inquiry.

Jacob Kossman:

Well, I — I — that’s correct.

We — I go — I will contend two things.

First, statutory authority wasn’t granted.

And secondly, Congress wouldn’t have the power to grant that.

But of course, with the policy of this Court, you consider constitutional questions last, not first.

Now, by just looking at the subpoena provision here, we see it doesn’t compare, doesn’t compare to any of the subpoena provisions in the regular — regulatory or Federal Trade Commission and SCC.

For instance, a typical example of the subpoena provision of the Federal Trade Commission would state, relating to any matter under investigation, or the Security Exchange Commission, that reads, “The Commission made in this — in this discretion, make such investigations as a deemed necessary.”

Then, skipping down, “Any member of the Commission is empowered to administer oust subpoena witnesses, compel their attendance.”

But what do we have here?

Section 235 (a) of the Immigration Act isn’t in this broad general form.

It reads as follows, “The first part of the subject, sentence of Section 235 (a) contains specifications, and therefore, limitation.”

Here is the way it goes, “The Attorney General and then the immigration officer shall have the power to require by a subpoena the attendance and testimony of witnesses before immigration officers and special inquiry officers relating to the privilege of any person to enter, reenter, reside in, or pass through the United States.”

And then, and only then, follows this phrase, “or concerning any matter which is material and relevant for the enforcement of this Act in administration of the Service.”

Now, if this sentence was that the Government argues, the general subpoena power analogous to the subpoena power that we find in the SCC, Federal Trade Commission or through every agency subpoena provision, especially the ones mentioned on page 41, all the Government had to do is to read and they would see it’s entirely different than this subpoena provision.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

They — they don’t have the specification.

Now, here’s what the Government does on page 11 of its brief.

They say, the plain language supports its theory and quotes, “the subpoena provision.”

That is there version of it.

“The Attorney General and then the — and the immigration officer,” skip, skip, skip, “shall have power to require by subpoena the attendance and testimony of witnesses before immigration officers,” skip, skip, skip, skip, skip, skip, — shown by the asterisk, “concerning any matter which is material and relevant to the enforcement of this Act and administration of the Service.”

Now, if that is the way Congress had written that subpoena provision, then I couldn’t argue that this subpoena provision wasn’t a general provision, and then I have to argue the constitutional phase of it.

But here, the Government is simply not playing all the notes as they were written, and only by skipping and leaving gap, half of the sentence they arrived at the subpoena provision which in form is analogous to the subpoena provisions found in the other administrative agencies.

(Inaudible)

Jacob Kossman:

What would the other provision cover?

The — the best answer to that is what the Service themselves have stated when they asked for that provision before Congress, and that’s almost a rather cynical position for the immigration officer for the Immigration Service to try to say that this business of matter includes denaturalization.

Here is what took place.

In the various documents prepared by the Service for the Congress before the passage of the Act, that here is what they specifically stated.

It’s on page 18 of the Government’s brief.

In the document entitled, “Original of Analysis”, and I’m reading from the Government’s brief on page 18, listen.

As a matter of fact, I would’ve known that if the Government had imprinted it, they read — they’d put it this way.

“The second objective which the Service would like to see accomplished in connection with this subsection, 235 (a), is to provide specific authority to administer rousing the question not only aliens who seek to enter.”

The emphasis is on the word “enter” there, the United States, “but also, nationals of the United States and the compelled testimony by subpoena in such cases.” In this case, the respondent Minker has been a resident of Pennsylvania for the past 40 years.

It is believed, that it is the intent of this section to accomplish that purpose, but the Service believes that certain amendments of language are necessary in order that they may be no doubt concerning the authority of service officers in these respects.

We also wish to see the power to administer oaths, and to take and consider evidence extended to any matter, which is material and relevant to the administration of this Act in the Service.

We have in mind in that regard, the fact that under administrator regulation contained in 8 C.F.R. Part 95, there are provisions for disciplinary action against the attorney.

Another person is authorized for practice before the Service and the Board of Immigration Appeals.

There is doubt whether under existing law, any officer of the Service has the authority to administer oaths and take evidence or compel testimony in such cases to attain the foregoing objectives.

Now, I’ll skip on the other side, insert concerning any matter, which is material and relevant to the enforcement of the Act and administration of the Service.

Then in another document, entitled, “Initial Draft”, for the — prepared by the Service for the —

What are you — I don’t understand your argument.

What are you —

Jacob Kossman:

My argument is this.

How do you say that supplies the answer to my question?

Jacob Kossman:

Well, my answer — that is the — the way I look at it is this.

The Service is that this additional phrase be put in.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

It wasn’t referred in the Act, in the prior Act.

Now, they gave these reasons why they wish to have that particular phrase put in, and they so stated that that’s the theory.

And then other piece of — on page 20, the additional draft, they asked — they put it this way, “In addition, this subsection contains a provision permitting inquirer under oath and by subpoena concerning any matter relevant to the enforcement of this Act in the administration of the Service.”

These provisions will be of great value in connection with such matters as for example, investigation of applications for admission to practice as attorneys or representative before the Service and Board of Immigration Appeals.

Now, they never said at that particular time that if — that is if I can conceive — if your question was, what is the meaning of that particular phrase?

I’d given the Services meaning.

My question — my question is up with this.

I understand you to say that as far as scope of this power is concerned, it’s limited to immigration as distinguished from naturalization for statutory.

And I’m asking you, if that be so, what is it that would be — would make necessary that broader provision in the Act, whether as the Government reached it.If — it is in the immigration only because immigration has sufficiently covered, it is not, and what is specifically referred to in the preceding section, in the preceding sentence?

Jacob Kossman:

Well, if they had written the phrase, this investigating phrase, the same as it’s written in all the other agencies, one little broad sentence that simply says, “Any matter under investigation,” that would be enough to incumbent as the word denaturalization proceedings as well as the immigration.

But where they have specified reenter, privilege of a person to enter, reenter, or any other matter, it seems that by specifying certain details, the principle of ejusdem generis and then following with or any other matter that they cannot say, “or if any other matter is greater in scope than what precedes,’ plus, their own — their own reason for putting that phrase in.

That is my — I believe my answer to the question.

Felix Frankfurter:

What you’re saying is that the generality derived as incumbent from the convict.

Jacob Kossman:

That’s correct.

Now, unfortunately, the various Courts of Appeals, in construing this section, didn’t have access to these documents.

A very vexing problem as Mr. Justice Jackson has printed out in the concurring opinion of United States versus the Public Utility Commission.

Certainly, it might well advance if the query of the Second Circuit which felt the words, “Concerning any matter which is essential or relevant to the enforcement of this Act and the administration of the Service would have no meaning.”

In other words, they felt that they have to have some meaning, and since that phrase by itself is analogous to the other agency provisions, so they decided on that basis.

As Judge Medina quoted, “There are these significant words to be left hanging in the air as it were, and given no effect whatever,” I submit that there’s a possibility that if he had known about what Congress themselves, what had been told by the Services, but there’s even more than that because the — the legislative history itself, the legislative history itself shows that it might be revealed by the Senate and House reports, it’s all in the brief.

This — it was specifically disclosed that Congress did not intend by this provision to sanction the indiscriminate questioning or harassment of citizens returning to the United States, but it was only to be used by immigration officers when the person was coming into the United States, and was suspected that they haven’t been expatriated which of course would be automatic.

That was the reason why they changed the word, “persons”, they called it a “privilege of persons” lifting it bubbly from — from the (Inaudible) case, which talked about the privilege of — of aliens, and made it much broader which they had a right to do.

The Government doesn’t argue because as the word, “persons” has been used instead of aliens that have encompass the citizens, there are people who claimed as the result of the last wars that they are citizens.

So, this is perfectly proper for Congress to say, “Privilege of any person coming in, because if a man says he’s a citizen and they are stealth, they can investigate, they can subpoena.”

But here, there is no doubt.

As a matter of fact, I don’t, I want to relieve the Government of at least one burden.

In fact, the only burden still we have noticed, a registered letter was sent by the Immigration and Naturalization.

It’s on page 4 of the record, which it says, “You are advised, your attendance is commanded in accordance with above referred to subpoena, in order that you may give testimony in connection with and relating to the possible institution of proceedings seeking the revocation of your naturalization, in accordance with Section 340,” an administrative hearing, in order to find that they have enough evidence to possibly seek his revocation.

Stanley Reed:

They try to find out because they have been informed.

Jacob Kossman:

Well, if the Court pleases.

If there only has a judgment, and we submit that a judgment is not subject to that collateral attack piece.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

He had a judgment that he won in Court with the Government on the other side in 1945.

Now, to say that they would’ve find — have good cause, simply, we — we submit —

Stanley Reed:

That’s the same statute, to put the duty on the District Attorneys institute denaturalization proceedings on that charge so that they won’t be able to find out that they’re interested so that they’re going to take away the subpoena.

Jacob Kossman:

Well, we — we don’t say that the immigration officers have no right to go out and investigate, and so do every other agency and citizen.

What we say is that there is no power given here to do that by subpoena.

And that certainly cannot be such a terrible person if the only way that they can try to take away his citizenship is by words from his own mouth.

So —

Stanley Reed:

I’d like to do that (Inaudible) — the only difference between you and the Government, exactly it is.

The Government will be advised to cross-petition, the denaturalization that they would assert it was a good cause.

Jacob Kossman:

Well, the Government has no right to do that unless there is a good cause.

Stanley Reed:

Right.

Jacob Kossman:

This is — this is something that they can only do on a rumor.

The — this is something that the — the legislative history forbids this.

But besides the legislative history forbidding this, we have internal evidence in the statute itself which — which shows that they simply don’t have the power.

Now, the subpoena power is usually found another administrative agency in a separate section.

You have it under evidence or investigation.

Here, we have jammed in a section that deals specifically with inspection of aliens.

Now, in the very same section, there’s an exact provision, words for word, as — as the subpoena sentence except that the subpoena is not granted and the word, “persons” is used instead of witnesses.

Now, that’s very important because it shows that Congress was aware of the distinction between subpoena and witnesses, and subpoena and persons.

Here’s the way it’s written, just two sentences above in the same Section.

The Attorney General and the immigration officer shall have power to administer oaths and for taking considered evidence of or from any person.

They don’t use — they use the word witness in the subpoena provision to sentences later.

From any or from any person touching the privilege of any alien or person he believes or suspects to be an alien, to enter, reenter, pass through or reside in United States, or concerning any matter which is material and relevant to the enforcement of this Act and the administration of the Service.

In other words, you have exactly the same provision for gathering all the evidence they want to, minus the subpoena provision.

When they give you the subpoena provision, they leave — they changed the word “persons” to “witnesses”.

Now, certainly, the normal course, the normal meaning of a word “witnesses”, is to be a witness against someone else.

This Court has in cases decided in view of the nature of denaturalization and deportation.

The word, “entry” doesn’t even have a common ordinary meaning of the word “entry”.

Now, as this Court therefore rather decided that the word “witness” doesn’t mean witness, but means witnessed something else.

Now, there is more — there is more internal evidence which shows that the Third Circuit was — was correct in their interpretation.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

In all the other agencies, every one of them, there is a subpoena provision, but there’s only one subpoena provision.

Here, what do we find?

We also find that despite the contention of the Government of a general power existed in Section 235 (a), that Congress found if necessary to specifically grant the subpoena power in 335 (b), in the same act in regard to pre-naturalization examination.

Now, we don’t find separate grants of powers in other administrative agencies, it’s only given once.

Once is enough.

Now, therefore, we have a right to contend that if the subpoena power under Section 235 (a) as applied to all matters connected with enforcement of the Act, it would have been be necessary to repeat it in 335 (b).

Now, the Government very cleverly tries to distinguish the — why two different subpoenas have been given.

They said, “Oh, one is investigating, and the other is judicial, quasi-judicial, a hearing.”

But no other administrative agency has two different subpoena provisions even though those two different functions exist.

So, therefore, going to the internal evidence of the — of the Act, we say that it’s no general power of subpoena granted which the Government contends and which they only establish by cut now half with asterisk.

Tom C. Clark:

Is there any provision in the Act unless — any provision in the Act which specifically gives the Board or the immigration official power and authority to conduct hearing in connection with denaturalization?

Jacob Kossman:

None, none.

Tom C. Clark:

Has there ever been?

Jacob Kossman:

None, never, and as a matter of fact, I’m glad the Court calls to my attention because there was — I have a little memorandum here.

Back — back in 1917, there was a provision allowing the Commissioner, the Commissioner of Internal Revenue to institute suit, denaturalization.

That was taken away which it shows, shows that Congress, as far as — when it comes to aliens, Congress and this Court allows practically unlimited power in — in handling the alien situation.

It comes to the citizenship and revocation of citizenship.

It’s strictly a judicial proposition.

Tom C. Clark:

Where has — where has Congress placed the power for denaturalization?

Jacob Kossman:

In Section 340 of this Act and it’s in —

Tom C. Clark:

Page 56 of the Government’s brief, is that what you’re talking about, Section 340?

Jacob Kossman:

56, 56 in the Government’s brief where it said, “It shall be the duty of the United States District Attorney.”

Now, there’s another —

Tom C. Clark:

Is that the — is that the only part of the Act which specifically grant authority to conduct any kind of administrative or any kind of hearing in reference to denaturalization?

Jacob Kossman:

That is correct.

There is not a single word or syllable in the entire Act, except for Section 340, and we come —

Tom C. Clark:

And this is found in the General —

Jacob Kossman:

Regulation —

Tom C. Clark:

— original clause to which reference has been made, or any other proceedings under this Act?

Jacob Kossman:

And — and unless —

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Tom C. Clark:

Unless it’s in there (Voice Overlap) —

Jacob Kossman:

Unless that this Court wishes to read that it’s in 235 (b) by virtue of that or any other matter which is relevant to the enforcement of this Act and the administration of the Service.

In other words, this Court will have to reach something into there, which the Service never contended before the passage of the Act existed, and which Congress has specifically —

Tom C. Clark:

Is anything in the report to the committees or the hearings that you know of that indicates that Congress intended to give denaturalization power hearings to —

Jacob Kossman:

It’s just the opposite, just the opposite.

I have quoted in the brief reports of Congress, the House and Senate in which they said that this provision must not be used to harass citizens.

As a matter of fact, Senator McCarran when President Truman had vetoed the Bill, and there was a question whether the — he said, “There’s nothing to worry,” Senator McCarran paraphrasing his words.

He said, “There’s nothing to worry.

The rights of private citizens aren’t going to be involved in this case.

The immigration inspectors aren’t going to decide whether a crime has been committed.”

Tom C. Clark:

You are arguing as I gather it that Congress has given four hours to the administrative agency to make all kinds of investigation about aliens?

Jacob Kossman:

That’s correct.

Tom C. Clark:

And to summon aliens.

Jacob Kossman:

That’s correct.

Tom C. Clark:

But has not expressly granted power anywhere in this Bill or any Bill in the past to conduct to administrative hearings and subpoena citizens.

Jacob Kossman:

That’s — that’s correct.

Tom C. Clark:

In connection with denaturalization.

Jacob Kossman:

That is correct.

They’ve — investigations perhaps but not subpoenaing provisions.

Tom C. Clark:

So as the investigative power?

Jacob Kossman:

The investigative power might come from the Senate —

Tom C. Clark:

And has that been given specifically?

Jacob Kossman:

No, I couldn’t say he gave it specifically.

I mean, I’m trying to reach something —

Tom C. Clark:

But I’m just trying to —

Jacob Kossman:

I — I had not granted, nothing, not a single word specifically.

Now —

Tom C. Clark:

That comes you suppose from the general power to investigate with reference to aliens that you denied that that can be applied to citizens.

Jacob Kossman:

That’s correct.

Tom C. Clark:

Until the — at least —

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

And I —

Tom C. Clark:

— as long as they’re citizens?

Jacob Kossman:

That’s correct, and I deny that Congress has the power to — to give that to administrative legislation.

Tom C. Clark:

You’re going on this Court’s opinion in connection with the fact that they’re entitled to due process.

Is that what you want?

Jacob Kossman:

Well, also, the separation of powers.

Here, you have a collateral attack that is as late back as in 1830, Chief Justice Marshall in Spratt versus Spratt says you can’t attack a judgment and a judgment of naturalization was referring to by collaterally.

What do I have there to question a — a naturalized citizen and immigration officer.

There’s something in Congress in the fact that a citizen, a naturalized citizen has to appear in an examining room to defend his right that he won in the Court room, but —

Tom C. Clark:

Not, maybe — maybe it might no be in Congress.

The question is, did Congress grant it here as told?

Jacob Kossman:

Well, if the Court —

Tom C. Clark:

You’re not raising a constitutional —

Jacob Kossman:

We say Congress didn’t grant it here, and I also say that if Congress did grant it here, that this Court with deference I believe would say it was an unconstitutional plan.

Now —

Tom C. Clark:

That’s not here now.

Jacob Kossman:

But — well, it’s here now, at the second phase of that.

I have — in other words —

Felix Frankfurter:

Based on a judgment and you’re sustaining it on a constitutional objection.

Jacob Kossman:

I — I’m sustaining that, which I have — I have the right to bring up.

Its — its their petition.

I have a right to bring up anything that would sustain the — the court belows verdict.

Now, I have to call what Mr. Justice just remarked in Section 287 of the Immigration Nationality Act.

They specifically defined the powers of the immigration officers and employees.

Now, certainly, if they intended to give the subpoena power to the immigration officers for denaturalization purpose, they would’ve mentioned it there.

Well, now, the exact words of Senator McCarran was, “Nothing in the Bill which would permit unreasonable invasion of privacy of citizens or with citizens returning from abroad,” because someone was conscious of the fact that the word “persons” had been used instead of the word “witnesses.”

And so, it doesn’t apply to citizens.

Now, there’s — the public interest can’t suffer.

In the recent case in the Seventh Circuit, United States versus Vivian, an individual subpoena to testify against someone who had to be deported, and under 235 (b), and the Seventh Circuit, mindful of the Minker case, which was not cited by the Government, and mindful of the Barnes case which uphold the Government’s contention which was cited by the Government, therefore, less stated, “We don’t have to await the decision of this Court on those two because — on those two cases because the witness is not a party.”

So, they’ve decided and we — we submit there’s nothing here to prevent subpoenaing witnesses in order to testify against aliens and — and people to be deported and what not.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

And the Seventh Circuit takes cognizance of that view.

Oh, yes, I just found that little note.

In 1918, denaturalization laws were amended to allow the Commissioner of naturalization to enter suit on behalf of the United States, under Section 15, but this was deleted in 1940.

So, I think that’s a little bit of evidence.

In other words, we have everything which shows that Congress did not — did not wish to give power to the administrative agency to subpoena citizens internally and externally.

Felix Frankfurter:

What part of — is that old Section 15 through the present law under this indictment?

Jacob Kossman:

Yes, but in the old Section, the Commissioner had the power to institute suit of immigration.

That has been removed.

It’s only the District Attorney who can do that.

Well, I thought it might show that Congress has eliminated something.

Certainly, the Government might well have argued that the Commissioner had the power to institute suit as many federal — many federal agents, they have a right to Federal Trade Commission, SCC.

Now, there’s just another thought.

We had the doctrine of the actual construction of statutes.

Our — our philosophy is that in this type of case that we see what the spirit is.

I mean, we know that the letter of the law kill us but the spirit give us life.

And in this kind of a preceding, it’s appropriate for this Court to avoid the harshness that would come about as a result of delivering millions of naturalized citizens into the hands of investigate — immigration inspectors who don’t need good cause in order to wish she was subpoenaed.

That’s a tremendous power to give an administrative officer.

And how has it worked out?

The Government’s brief shows in 1500 investigations where they brought in individuals that they’ve only, I think 20 or 30 revocations have resolved it.

Now, certainly, that’s too great power.

Stanley Reed:

Many cases have been barred.

Jacob Kossman:

That, I — I wouldn’t know.

That I wouldn’t know.

There’s another thought.

The Second Circuit, when they decided this case, they didn’t know that the Third Circuit had decided that — that they quoted the District Court in its opinion, although the District Court had been reversed.Now, the Second Circuit end up — may I finish it?

Earl Warren:

You can finish your statement.

Jacob Kossman:

All right.

The Second Circuit in their opinion, said, “This would be a wonderful being in order to help find subversives in the country,” although they dud state that subversives were not involved in the particular case.

Now, in our sociological times, I mean the touchstone of interpretation of statutes is not based on the fact as to whether subversives or bad people may lose their particular citizenship.

We submit that when a citizen is confronted with an administrative challenge to his right to retain his citizenship that he is not to be regarded as a witness within the meaning of Section 235 (a), and that the judgment of the court below should be affirmed.

Audio Transcription for Oral Argument, Part 1: Falcone v. Barnes – November 14, 1955 (47) in United States v. Minker
Audio Transcription for Oral Argument, Part 2: Falcone v. Barnes – November 15, 1955 (47) in United States v. Minker

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Jacob Kossman:

The constitutional arguments that I have in my brief only come into play if this Court feels that power was given in 235 (a), to subpoena naturalized citizens.