Kennedy v. Mendoza-Martinez Rusk/Concurrence Brennan
Mr. Justice BRENNAN, concurring.
I join the Court's opinion because I fully agree with the Court's conclusion that Congress has here attempted to employ expatriation as a penal sanction in respect of behavior deemed inimical to an objective whose pursuit is within its assigned powers, and with the reasoning by which that conclusion is reached. So too, I agree that Congress is constitutionally debarred from so employing the drastic, the truly terrifying remedy of expatriation, certainly where no attempt has been made to apply the full panoply of protective safeguards which the Constitution requires as a condition of imposing penal sanctions. However, I deem it appropriate to elaborate somewhat the considerations which impel me to agree with the Court.
This Court has never granted the existence in Congress of the power to expatriate except where its exercise was intrinsically and peculiarly appropriate to the solution of serious problems inevitably implicating nationality. We have recognized the entanglements which may stem from dual allegiance, and have twice sustained statutes which provided for loss of American citizenship upon the deliberate assumption of a foreign attachment. Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287. We have recognized that participation by American nationals in the internal politics of foreign states could dangerously prejudice our diplomacy, and have allowed the use of expatriation as a uniquely potent corrective which precludes recriminations by disowning, at the moment of his provocative act, him who might otherwise be taken as our spokesman or our operative. Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603. The instant cases do not require me to resolve some felt doubts of the correctness of Perez, which I joined. For the Court has never held that expatriation was to be found in Congress' arsenal of common sanctions, available for no higher purpose than to curb undesirable conduct, to exact retribution for it, and to stigmatize it.
In Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596, we had before us § 401(g) of the Nationality Act of 1940, which imposed loss of American nationality following conviction of deserting the armed forces in time of war. We held that statute unconstitutional. Three of my Brethren joined in the opinion of The Chief Justice, who analyzed the case in terms equally applicable to the cases at bar. That plurality opinion in Trop noted that the congressional power to which expatriation under § 401(g) was said to be relevant was the 'war power.' It concluded that expatriation under § 401(g) could have no value in furtherance of the war power except as a sanction, to deter or punish desertion; that expatriation so employed was 'punishment' within the meaning of the Eighth Amendment; and that such punishment was unconstitutional because cruel and unusual. 
My concurring views in Trop, separately expressed, were akin to those of the plurality. I shared the view that expatriation could have been employed in § 401(g) only as a sanction, and I considered this an insufficient predicate for its use-which I believed allowable only where some affirmative and unique relationship to policy was apparent. My premise was the simple and fundamental one that legislation so profoundly destructive of individual rights must keep within the limits of palpable reason and rest upon some modicum of discoverable necessity. I was unable to conclude that § 401(g) met that elementary test. It was evident that recognizable achievement of legitimate congressional purposes through the expatriation device was at best remote; and that far more promising alternative methods existed and had, in fact, been employed.
My Brother STEWART attempts to distinguish Trop along two fronts: He argues that expatriation is not here employed as 'punishment' in the constitutional sense so that the reasoning of the Trop plurality has no application; and he argues that, the question of punishment aside, expatriation as here employed is a uniquely necessary device not falling within the rationale of my views separately expressed in Trop.
My Brother STEWART discerns in § 401(j)  an affirmative instrument of policy and not simply a sanction which must be classed as 'punishment.' The policy objective is thought to be the maintenance of troop morale; a threat to that objective is thought to be the spectacle of persons escaping a military-service obligation by flight; and expatriation of such persons is sustained as a demonstrative counter to that threat. To my mind that would be 'punishment' in the purest sense; it would be naked vengeance. Such an exaction of retribution would not lose that quality because it was undertaken to maintain morale. Indeed, it is only the significance of expatriation as retribution which could render it effective to boost morale-the purpose which, to the dissent, removes expatriation as here used from the realm of the punitive. I do not perceive how expatriation so employed would differ analytically from the stocks or the rack. Because such devices may be calculated to shore up the convictions of the law-abiding by demonstrating that the wicked will not go unscathed, they would not, by the dissent's view, be punitive or, presumably, reachable by the Eighth Amendment.  I cannot agree to any such proposition, and I see no escape from the conclusion that § 401(j), before us today, is identical in purpose to § 401(g) and is quite as 'punitive' as was that statute, which we condemned in Trop.
The dissent finds other distinctions between this case and Trop, quite apart from its untenable position that § 401(j) is not punitive. It is said that flight from the country to escape the draft, in contrast with desertion, could never be a mere technical offense equivocal in its implications for the loyalty of the offender. But the unshakable fear of physical stress or harm, the intellectual or moral aversion to combat, and the mental aberation which may result in flight are no more inconsistent with underlying loyalty than was Trop's unauthorized abandonment of his post.  Again, it is suggested that the element of cumulation of punishments which helped expose the futility of expatriation in Trop is missing here, because § 401(j), unlike § 401(g), becomes operative without a prior conviction, and applies only in the case of flight beyond our borders. But the Mendoza-Martinez case, in its collateral estoppel issue, prominently displays what would in any case be obvious-that expatriation under § 401(j) is cumulative with criminal sanctions for draft evasion, for those sanctions apply to fugitives equally as much as to sedentary violators. 
Nor can Trop rationally be distinguished on the ground that the application of § 401(j) only the fugitives proves that it was designed to fill a void necessarily left by the ordinary criminal draft-evasion sanctions. The point, as I understand it, is that the ordinary sanctions cannot be brought to bear against a fugitive who declines to come home; but he can be expatriated while he remains abroad, without having to be brought before a tribunal and formally proceeded against. The special virtue of expatriation, it appears, is that it may be accomplished in absentia.
Aside from the denial of procedural due process, which the Court rightly finds in the scheme, the surface appeal of the argument vanishes upon closer scrutiny.
It simply is not true that expatriation provides an instrumentality specially necessary for imposing the congressional will upon fugitive draft evaders. Our statutes now provide severe criminal sanctions for the behavior in question. The fugitive can return only at the cost of suffering these punishments; the only way to avoid them is to remain away. As to any draft delinquent for whom the prospect of this dilemma would not itself pose a recognizable, formidable deterrent, I fail to see how the addition of expatriation could enhance the effect at all.  Nor can expatriation affect the fugitive who will not return to be punished-for whom it is thought to be specially designed. For that individual has, ex hypothesi, determined on his own to stay away and so cannot be affected by the withdrawal of his right to return. The sting of the measure is felt only by those like Mendoza-Martinez, who have already returned and been punished, and those like Cort, who desire to return and be punished-those, in other words, as to whom expatriation is patently cumulative with other sanctions. As to the unregenerate fugitive whom it is particularly thought to reach, expatriation is but a display of congressional displeasure. I cannot agree that it is within the power of Congress so to express its displeasure with those who will not return as to destroy the rights and the status of those who have demonstrated their underlying attachment to this country by coming home.
It is apparent, then, that today's cases are governed by Trop no matter which of the two controlling opinions is consulted. Expatriation is here employed as 'punishment,' cruel and unusual here if it was there. Nor has expatriation as employed in these cases any more rational or necessary a connection with the war power than it had in Trop.
Mr. Justice STEWART'S dissent would sustain § 401(j) as a permissible exercise of the 'war power.' The appellants in these cases, on the other hand, place their main reliance on the 'foreign affairs power.' The dissent summarizes the appellants' arguments under this heading but does not purport to pass on them. Because of my conviction that § 401(j) is unconstitutional no matter what congressional power is invoked in its support, I find it necessary to deal with the foreign affairs arguments advanced by the appellants.
Initially, I note that the legislative history as expounded by the dissent fails to reveal that Congress was mindful of any foreign affairs problem to be corrected by the statute. The primary purpose seems to me to have been retributive, the secondary purpose deterrent; and even the morale-boosting purpose discerned by the dissent has nothing to do with foreign affairs. While the obvious fact that Congress was not consciously pursuing any foreign affairs objective may not necessarily preclude reliance on that power as a ground of constitutionality, it does render such reliance initially questionable.
Proceeding to the appellants' arguments, one encounters first the suggestion that a fugitive draft evade 'can easily cause international complications' while he remains an American citizen, because the United States cannot exercise control over him while he is on foreign soil.
Such a 'problem,' obviously, exists equally with respect to any fugitive from American justice, and cannot be thought confined to draft evaders. Yet it is only fugitive draft evaders who are expatriated. It is, therefore, impossible to agree that Congress was acting on any such inherently unlikely premise as that expatriation was necessary so as to avoid responsibility for those described by § 401(j).
But, contend the appellants, § 401(j) is designed to prevent embroilments as well as embarrassments. During wartime, it is argued, our Government would very likely feel impelled to demand of foreign havens the return of our fugitive draft evaders; and such a demand might seriously offend a 'host' country, leading to embroilment. The transparent weakness of this argument-its manifest inconsistency-must be immediately apparent. Surely the United States need not disable itself from making injudicious demands in order to restrain itself from doing so. The argument rests on the possibility that there may be an urgent need to secure a fugitive's return. If that is so, a demand must be made with its attendant risk of embroilment. If expatriating the fugitive makes a demand impossible, it able forever defeats the objective-his return-which would have impelled the demand in the first place. If recapturing fugitives may ever be urgently necessary, it is obvious that automatic expatriation could only be directly opposed to our interest-which requires that the Government be free to choose whether or not to make the demand, in light of all the attendant circumstances.
The appellants have still another argument. It is that whereas the Government is under an obligation to seek the return of the fugitive as long as he remains a citizen, by terminating citizenship 'Congress has eliminated at the outset any further claim that this country would have to the services of these individuals, and has removed all basis for further demands upon them * * *.' This simply is not so. Expatriation may have no effect on a continuing military-service obligation.  And it is incontrovertible that the power to punish the initial draft-evasion offense continues although citizenship has meanwhile become forfeit. The Government has so argued in addressing itself to the collateral estoppel issue in Mendoza-Martinez. I cannot understand how any obligation to apprehend can be other than coextensive with the power to punish. The Government cannot have it both ways in the same case.
The appellants urge that, wholly apart from any explicit congressional power, § 401(j) may be sustained as an exercise of a power inherent in United States sovereignty. My Brethren who would uphold the statute have not adverted to this possibility except, as I shall point out, as they have adopted in passing certain related arguments.
Preliminarily, it is difficult to see what is resolved by the assertion that sovereignty implies a power to expatriate. That proposition may be admitted and yet have no bearing on the problem facing the Court.
For, under our Constitution, only a delimited portion of sovereignty has been assigned to the Government of which Congress is the legislative arm. To say that there inheres in United States sovereignty the power to sever the tie of citizenship does not answer the inquiry into whether that power has been granted to Congress. Any argument that it has been so delegated which eschews reference to the constitutional text must, it appears, make its appeal to some sense of the inevitable fitness of things. The contentions here fall far short of any such standard.
It is too simple to suggest that it is fitting that Congress be empowered to extinguish the citizenship of one who refuses to perform the 'ultimate duty' of rising to the Government's defense in time of crisis. I pause to note that for this Court to lend any credence whatever to such a criterion-as the dissent would, see pp. 214-215, is fraught with the most far-reaching consequences. For if Congress now should declare that a refusal to pay taxes, to do jury duty, to testify, to vote, is no less an abnegation of ultimate duty-or an implied renunciation of allegiance-than a refusal to perform military service, I am unable to perceive how this Court, on the dissent's view, could presume to gainsay such a judgment. But the argument is not saved even by a willingness to accept these consequences. There really is no way to distinguish between the several failures of a citizen's duty I have just enumerated, or to explain why evasion of military service should be visited with this specially harsh consequence, except to recognize that the latter defection is palpably more provocative than the others. But, as I have argued in another context, when conduct is singled out of a class for specially adverse treatment simply because it is specially provocative, there is no escaping the conclusion that punishment is being administered. See Flemming v. Nestor, 363 U.S. 603, 635-640, 80 S.Ct. 1367, 1388, 4 L.Ed.2d 1435 (dissenting opinion). Pursuit of the 'ultimate duty' concept, then, simply reaffirms my conviction that this case is indistinguishable from Trop.
The appellants, however, argue that it is fitting that Congress be empowered to extinguish the citizenship of one who not only refuses to perform his duty, but who also 'repudiates his wider obligation as a citizen to submit to this country's jurisdiction and authority' by fleeing the country in order to escape that duty. It is, once again, difficult to see how this flight-repudiation theory can be confined to draft evasion. Every fugitive from United States justice repudiates American authority over him in equal measure. If the difference lies in the quality of the act of draft evasion, then we are back once again to punishment.
The appellants assert that '(a) government which cannot exert force to compel a citizen to perform his Lawful (Government's emphasis) duty is, to that extent, not sovereign as to him.' The apparent corollary is that congressionally imposed expatriation is, under such circumstances, in effect declaratory of a change in status which has already occurred. But the Government is far from conceding its lack of authority over a fugitive draft evader. It informs us that 'the federal government has the power to order our citizens abroad to return, for any lawful purpose,' citing Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. And, in any event, the argument proves far too much, for it would justify expatriation of any American abroad for any reason who would, equally with persons covered by § 401(j), be outside our Government's power to compel the performance of duty.
Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.
I agree with and join in Parts I, II, III, and IV of my Brother STEWART'S opinion, leading to the conclusion that § 401(j) of the Nationality Act of 1940, applicable in No. 2 (Mendoza), is constitutional. I also agree with his conclusion that for the same reasons, the substantive provisions of § 349(a) (10) of the 1952 Act, applicable in No. 3 (Cort), are constitutional. I disagree, however, with his view that the evidentiary presumption contained in § 349(a)(10) is unconstitutional. I am content to state my reasons in summary form.
1. As I read the opinion below in the Cort case I do not think the District Court relied on the § 349(a)(10) presumption.  This view is fortified by several considerations: (i) the constitutionality of the presumption was attacked in Cort's complaint and was briefed by both sides in the District Court; (ii) the text of the presumption itself was set forth in the opinion of the District Court (187 F.Supp., at 684) at only a page or two before the extract quoted in the margin (note 1); and (iii) in these circumstances it is difficult to believe that the lower court, composed of three experienced judges, either inadvertently ignored the presumption or upheld its validity sub silentio. The more likely conclusion is that finding the evidence sufficient without the aid of the presumption, the lower court saw no need for reaching a second constitutional issue.
So viewing that District Court's opinion, I think the evidence was quite sufficient under the 'clear, unequivocal, and convincing' standard of Schneiderman v. United States, 320 U.S. 118, 135, 63 S.Ct. 1333, 1341, 87 L.Ed. 1796, to support the finding below that Cort had remained abroad for the purpose of evading military service. 
2. In addition, I see nothing constitutionally wrong with this presumption either on its face or as related to this case. Similar presumptions have been consistently sustained in criminal statutes, where the standard of proof is certainly no less stringent than in denationalization cases. See, e.g., Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632; Hawes v. Georgia, 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431; cf. Fong Yue Ting v. United States, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905. As regards the requirement that there must be a 'rational connection between the fact proved and the ultimate fact presumed,' Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, this presumption is surely a far cry from that held constitutionally invalid in the Tot case.  And since we are concerned here only with the presumption as applied in this instance (if indeed it was in fact applied below or must now be resorted to in this Court), it is no answer to suggest that in other instances application of the presumption might be unconstitutional.
Thus whether or not the § 349(a)(10) presumption is involved in the Cort case, I believe that the order of denationalization there, as well as in the Mendoza case, should be upheld. 
Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.
^1 The plurality opinion in Trop rested alternatively on the proposition that divestiture of citizenship can result only from a clear renunciation or transfer of allegiance on the part of the citizen. However, since this view had been rejected by a majority of the Court in Perez v. Brownell, supra, the Trop plurality relied principally on the reasoning outlined in the text.
^2 My discussion of § 401(j) is equally applicable to its re-enactment as § 349(a)(10) of the Immigration and Nationality Act of 1952, involved in the Cort case.
^3 The examples I have given must, of course, have some deterrent effect upon the conduct for which they are administered. But this could not, in the dissent's view, render them punitive. For expatriation as employed in § 401(j) must also, in the dissent's view, have some deterrent effect upon draft-evading flight, since if expatriation were not thought by the dissent to be an undesirable consequence, it could not serve the morale-boosting purpose which is attributed to it. (But see p. 192-193, and n. 6.) And, as the dissent recognizes, the legislative purpose was at least in part a deterrent one.
^4 The 'purpose of evading or avoiding training and service' specified in § 401(j) seems no graver a reflection upon loyalty than the 'intent to remain away * * * permanently' or the 'intent to avoid hazardous duty or to shirk important service' specified in the definition of desertion codified in the Uniform Code of Military Justice, 10 U.S.C. § 885. The mere fact that the conduct described in § 401(j) requires the crossing of a frontier does not guarantee that it will be any less equivocal or more serious than was Trop's desertion. A resident of Texas might, during time of war, cross the border into Mexico intending to evade the draft, then change his mind and return the next day. Such conduct clearly results in expatriation under § 401(j).
^5 It is obvious that § 401(j) does not reach any conduct not otherwise made criminal by the selective service laws. 62 Stat. 622, 50 U.S.C.App. § 462(a), in relevant part identical with Selective Training and Service Act of 1940, § 11, under which Mendoza-Martinez was prosecuted, provides: '(A)ny person who * * * evades or refuses registration or service in the armed forces or any of the requirements of this title * * *, or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title, or rules, regulations, or directions made pursuant to this title * * *, shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.'
^6 The prospective fugitive draft evader must consider that if he flees, either (1) he must eventually face criminal fine and imprisonment; or (2) he will not be able to return. To say that prospect (1) will not deter is simply to reject our entire criminal justice as fruitless so far as deterrence is an object. To say that prospect (2) will not deter is simply to concede that expatriation will not deter, either-except on the strained assumption that withdrawal of diplomatic protection can work the difference.
^7 As the Government forcefully argues on the collateral estoppel point in Mendoza-Martinez, the selective service requirements apply to resident aliens as well as to citizens. Section 401(j), as discussed in Congress and by the appellants and in Mr. Justice STEWART'S dissent in these cases, seems to reflect a special concern with those who flee 'for the duration,' intending to return after peace is restored. The Government could well argue that such a fugitive, although expatriated, is a resident alien subject to compulsory military service.
^1 The District Court said: 'When, as here, a citizenship claimant establishes his birth in the United States the burden is upon the Government to prove by clear, convincing and unequivocal evidence the act it relies upon to show expatriation. Nishikawa v. Dulles, 356 U.S. 129, 133, 78 S.Ct. 612, 2 L.Ed.2d 659. We think the Government has met this burden. In 1951 when the plaintiff went abroad it was for a limited period. On December 29, 1952, he accepted a position at the Harvard Medical School to begin the latter part of 1953, and indicated that he had made arrangements for prior transportation to the United States. His intention to return to this country was steadfast until he learned shortly after January 31, 1953, that the school authorities felt that they could not declare him 'essential' for teaching, and that he probably would be drafted. He wrote them on February 10, 1953, that until he heard 'something definite' from the draft borad he was 'reluctant to take a decision that may prove to be foolish or premature.' On February 9, June 4, and July 3 in 1953 the draft board sent him notices to report for physical examination, and thereafter ordered him to report for induction on September 14, 1953. The plaintiff made no response or compliance but remained abroad. We are convinced that his purpose was to avoid service in the armed forces.
'The only question left in this case is the constitutionality of the law under which the Government maintains that the plaintiff was divested of his citizenship.' 187 F.Supp., at 686.
^2 Cort was not charged with going abroad in order to avoid military service, but solely with remaining abroad to avoid induction. The evidence shows convincingly that Cort's purpose in remaining abroad, first in England and then in Czechoslovakia, was to avoid the draft.
On May 29, 1951, Cort left the United States to accept a research fellowship at the University of Cambridge, England. A few days before his departure he registered as a 'special registrant' under the Doctors Draft Act. On September 11, 1952, he was classified I-A (medical), available for military service. Meanwhile, in late 1951 the Government had requested Cort to surrender his passport for invalidation, except for return to the United States. He did not do this.
On December 29, 1952, Cort accepted, by a letter sent from England, a teaching position at the Harvard Medical School, indicating his intention to return to the United States in late June 1953 in order to start work on August 1, 1953. On the same day he also wrote to the Massachusetts Medical Advisory Committee, stating that he would begin teaching at Harvard in July 1953, and requesting a draft deferment on the ground that this 'civilian function * * * shall be far more essential to my country than military service.'
On January 29, 1953, Harvard authorities advised the Medical Advisory Committee that they did not regard Cort's teaching position as essential to medical teaching, and on February 4, 1953, the Committee recommended to the local draft board that Cort be considered
'available for active military service.' Between January 31, 1953, and May 29, 1953, the Dean of the Harvard Medical School and Cort exchanged several letters-the Dean suggesting that Cort apply for a commission, Cort expressing surprise that the teaching position was not considered essential, and that until he had heard from his draft board he was 'reluctant to take a decision that may prove to be foolish or premature.'
On February 9, 1953, Cort was informed by his local draft board that his deferment request had been denied, and he was ordered to report for a physical examination within 30 days of the receipt of the letter. On June 4, 1953, and on July 3, 1953, he was again sent notices directing him to report for a physical examination. On August 13, 1953, Cort was ordered to report for induction on September 14, 1953. Cort did not report notwithstanding that in the interval, as he concedes, he had received these notices from his draft board.
On August 8, 1954, after his residence permit in England was not renewed by the British Home Office, Cort took up residence in Prague, Czechoslovakia, where not until April 7, 1959, did he make any application for a United States passport.
Against this background the District Court was certainly entitled to discredit Cort's belated efforts, long after his indictment for draft evasion, to come to terms with the military authorities, as well as his self-serving statements that he remained abroad to avoid investigation as to his alleged Communist affilations or possible prosecution under the Smith Act.
^3 A presumption that one is remaining abroad with a purpose of avoiding military service, arising from continued sojourn abroad in the face of an uncontroverted call to military duty, certainly bears no resemblance whatever to the presumption found wanting in Tot. That presumption was that firearms or ammunition possessed by one previously convicted of a crime of violence, or who was a fugitive from justice, were received not only in interstate commerce, but also subsequent to the enactment of the relevant statute, the presumption arising solely from a showing that such person had already once been convicted of a crime of violence and was presently in possession of firearms or ammunition.
^4 Even on the premises of my Brother STEWART, the proper course would be to remand the Cort case to the District Court for a new trial, not, as he proposes, to set aside the basic denationalization proceeding. This is not a case of the District Court being called on simply to review for error an administrative record, but one in which it was required to try the denationalization issue de novo. In these circumstances there would be no need to have the administrative proceeding start all over again.