Replies

dissent extracts from
Ludecke v. Watkins, 335 U.S. 160 (1948)

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE join, dissenting.
The petition for habeas corpus in this case alleged that petitioner, a legally admitted resident of the United States, was about to be deported from this country to Germany as a “dangerous” alien enemy, without having been afforded notice and a fair hearing to determine whether he was “dangerous.” The Court now holds, as the Government argued, that, because of a presidential proclamation, petitioner can be deported by the Attorney General’s order without any judicial inquiry whatever into the truth of his allegations. The Court goes further and holds, as I understand its opinion, that the Attorney General can deport him whether he is dangerous or not. The effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned, and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General’s deportation order. MR. JUSTICE DOUGLAS has given reasons in his dissenting opinion why he believes that deportation of aliens, without notice and hearing, whether, in peace or war, would be a denial of due process of law. I agree with MR. JUSTICE DOUGLAS for many of the reasons he gives that deportation of petitioner without a fair hearing as determined by judicial review is a denial of due process of law. But I do not reach the question of power to deport aliens of countries with which we are at war while we are at war, because I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction. Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that, after hostilities with a foreign country have ended, the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported.

The Court relies on the Alien Enemy Act of 1798. 1 Stat. 577, 50 U.S.C. §§ 21-24. That Act did grant extraordinarily broad powers to the President to restrain and “to provide for the removal” of aliens who owe allegiance to a foreign government, but such action is authorized only “whenever there is a declared war between the United States” and such foreign government, or in the event that foreign government attempts or threatens the United States with “any invasion or predatory incursion.”

The powers given to the President by this statute, I may assume for my purposes, are sufficiently broad to have authorized the President, acting through the Attorney General, to deport alien Germans from this country while the “declared” second World War was actually going on, or while there was real danger of invasion from Germany.

Mr. Otis, who was most persistent in his expressions of anti-French sentiments and in his aggressive sponsorship of this and its companion Alien and Sedition Acts, is recorded as saying
“. . . that, in a time of tranquility, he should not desire to put a power like this into the hands of the Executive; but, in a time of war, the citizens of France ought to be considered and treated and watched in a very different manner from citizens of our own country.”

For nearly 150 years after the 1798 Act, there never came to this Court any case in which the Government asked that the Act be interpreted so as to allow the President or any other person to deport alien enemies without allowing them access to the courts. In fact, less than two months after the end of the actual fighting in the first Word War, Attorney General Gregory informed the Congress that, although there was power to continue the internment of alien enemies after the cessation of actual hostilities and until the ratification of a peace treaty, still there was no statute under which they could then be deported. For this reason, the Attorney General requested Congress to enact new legislation to authorize deportation of enemy aliens at that time.

A bill to carry out the recommendations of the Wilson administration was later passed, 41 Stat. 593 (1920), but not until it had been amended on the floor of the House of Representatives to require that all alien enemies be given a fair hearing before their deportation. 58 Cong.Rec. 3366. That a fair hearing was the command of Congress is not only shown by the language of the Act, but by the text of the congressional hearings, by the committee reports, and by congressional debates on the bill. In fact, the House was assured by the ranking member of the Committee reporting the bill that, in hearings to deport alien enemies under the bill, “a man is entitled to have counsel present, entitled to subpoena witnesses and summon them before him and have a full hearing at which the stenographer’s minutes must be taken.”

the purpose of deportation, so far as it was authorized (if authorized) under the 1798 Act, was not to protect the United States from ideas of aliens after a war or threatened invasion, but to protect the United States against sabotage, etc., during a war or threatened invasion.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE MURPHY and MR. JUSTICE RUTLEDGE, concur, dissenting.

It is undisputed that, in peacetime, an alien is protected by the due process clause of the Fifth Amendment. Wong Wing v. United States, 163 U. S. 228.

In deportation proceedings, due process requires reasonable notice (Tisi v. Tod, 264 U. S. 131, 264 U. S. 134), a fair hearing (Bridges v. Wixon, 326 U. S. 135, 326 U. S. 156; Chin Yow v. United States, 208 U. S. 8, 208 U. S. 12; Low Wah Suey v. Backus, 225 U. S. 460), and an order supported by some evidence. Vajtauer v. Commissioner, supra, p. 273 U. S. 106; Zakonaite v. Wolf, 226 U. S. 272, 226 U. S. 274. And see Kwock Jan Fat v. White, 253 U. S. 454.

The rule of those cases is not restricted to instances where Congress itself has provided for a hearing. The Japanese Immigrant Case, 189 U. S. 86, decided in 1903, so held. The Court in that case held that due process required that deportation be had only after notice and hearing, even though there, as here, the statute prescribed no such procedure, but entrusted the matter wholly to an executive officer.

See United States ex rel. Schlueter v. Watkins, 67 F. Supp. 556, aff’d, 158 F.2d 853;

In the Schlueter case, it was held that the Constitution and the statute do not require a hearing, and thus an alien enemy cannot complain of the character of the hearing he did receive. 67 F. Supp. at 565.

The Court said, 189 U.S. p. 189 U. S. 101:
“. . . no person shall be deprived of his liberty without opportunity at some time, to be heard before such officers in respect of the matters upon which that liberty depends — not necessarily an opportunity upon a regular, set occasion, and according to the forms of judicial procedure, but one that will secure the prompt, vigorous action contemplated by Congress, and at the same time be appropriate to the nature of the case upon which such officers are required to act. Therefore it is not competent for the Secretary of the Treasury or any executive officer at any time within the year limited by the statute arbitrarily to cause an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population, although alleged to be illegally here, to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. No such arbitrary power can exist where the principles involved in due process of law are recognized.”

https://supreme.justia.com/cases/federal/us/335/160/

“It is undisputed that, in peacetime, an alien is protected by the due process clause of the Fifth Amendment. Wong Wing v. United States, 163 U. S. 228.”

The ruling also distinguished between due process for punishing crimes versus deportation which is civil. In other words, IT IS DISPUTED whether due process applies to the deportation of those here unlawfully, regardless of war status.

However, anyone who does not believe we are in a present state of war over immigration is naive. Unfortunately, the greatest enemy in this war is not a foreign power but the enemy within.

Over the past few decades (and more so in recent years) Democrats and RINOs permitted MILLIONS of aliens to illegally enter or remain in the United States and they did not follow the “due process” prescribed for entry or permanent residency.

Now it is demanded that each of these millions have the lawfullness of their presence here adjudicated one at a time.

If this is the final outcome of the matter then this nation has failed, this experiment in Democracy has failed, and the Constitution itself has failed.

All that remains is for the present Civil War 2 to go hot, and to the victors go the spoils.

American citizens and our future posterity have a right to this nation, but it is being stolen from us.

Ubi jus, ibi remedium = Where there is a right, there is a remedy. Otherwise, “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”