Kennedy v. Mendoza-Martinez Rusk/Opinion of the Court

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Opinion of the Court
Concurring Opinion
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United States Supreme Court

372 U.S. 144

Kennedy  v.  Mendoza-Martinez Rusk

 Argued: Dec. 4 and 5, 1962. --- Decided: Feb 18, 1963

We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for '(d)eparting from or remaining outside of the jurisdiction of the United States in time of war or * * * national emergency for the purpose of evading or avoiding training and service' in the Nation's armed forces. [1]

A. Mendoza-Martinez-No. 2.

The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this country in 1922 and therefore acquired American citizenship by birth. By reason of his parentage, he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In 1942 he departed from this country and went to Mexico solely, as he admits, for the purpose of evading military service in our armed forces. He concedes that he remained there for that sole purpose until November 1946, when he voluntarily returned to this country. In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of 1940. [2] He served the imposed sentence of a year and a day. For all that appears in the record, he was, upon his release, allowed to reside undisturbed in this country until 1953, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings. This was premised on the assertion that, by remaining outside the United States to avoid military service after September 27, 1944, when § 401(j) took effect, he had lost his American citizenship. Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.

Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court for the Southern District of California, seeking a declaration of his status as a citizen, of the unconstitutionality of § 401(j), and of the voidness of all orders of deportation directed against him. A single-judge District Court in an unreported decision entered judgment against Mendoza-Martinez in 1955, holding that by virtue of § 401(j), which the court held to be constitutional, he had lost his nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The Court of Appeals for the Ninth Circuit affirmed the judgment, 238 F.2d 239. This Court, in 1958, Mendoza-Martinez v. Mackey, 356 U.S. 258, 78 S.Ct. 713, 2 L.Ed.2d 757, granted certiorari, vacated the judgment, and remanded the cause to the District Court for reconsideration in light of its decision a week earlier in Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596.

On September 24, 1958, the District Court announced its new decision, also unreported, that in light of Trop § 401(j) is unconstitutional because not based on any 'rational nexus * * * between the content of a specific power in Congress and the action of Congress in carrying that power into execution.' On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey v. Mendoza-Martinez, 359 U.S. 933, 79 S.Ct. 648, 3 L.Ed.2d 635, and then of its own motion remanded the cause, this time with permission to the parties to amend the pleadings to put in issue the question of whether the facts as determined on the draft-evasion conviction in 1947 collaterally estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American citizenship while in Mexico. Mackey v. Mendoza-Martinez, 362 U.S. 384, 80 S.Ct. 785, 4 L.Ed.2d 812.

The District Court on remand held that the Government was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous holding that § 401(j) is unconstitutional, adding as a further basis of invalidity that § 401(j) is 'essentially penal in character and deprives the plaintiff of procedural due process. * * * (T)he requirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in this present proceedings.' [3] The Attorney General's current appeal is from this decision. Probable jurisdiction was noted on February 20, 1961, Rogers v. Mendoza-Martinez, 365 U.S. 809, 81 S.Ct. 691, 5 L.Ed.2d 689. The case was argued last Term, and restored to the calendar for reargument this Term, 369 U.S. 832, 82 S.Ct. 863, 7 L.Ed.2d 841.

B. Cort-No. 3.

Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise American citizens by birth. Following receipt of his M.D. degree from the Yale University School of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research Fellow at Cambridge University. He had earlier registered in timely and proper fashion for the draft and shortly before his departure supplemented his regular Selective Service registration by registering under the newly enacted Doctors Draft Act. [4] In late 1951 he received a series of letters from the American Embassy in London instructing him to deliver his passport to it to be made 'valid only for return to the United States.' He did not respond to these demands because, he now says in an affidavit filed in the trial court in this proceeding, 'I believed that they were unlawful and I did not wish to subject myself to this and similar forms of political persecution then prevalent in the United States. * * * I was engaged in important research and teaching work in physiology and I desired to continue earning a livelihood for my family.' Cort had been a member of the Communist Party while he was a medical student at Yale from 1946 to 1951, except for the academic year 1948-1949 when he was in England. In late 1952, while still in England at Cambridge, he accepted a teaching position for the following academic year at Harvard University Medical School. When, however, the school discovered through further correspondence that he had not yet fulfilled his military obligations, it advised him that it did not regard his teaching position as essential enough to support his deferment from military service in order to enter upon it. Thereafter, his local draft board in Brookline, Massachusetts, notified him in February 1953 that his request for deferment was denied and that he should report within 30 days for a physical examination either in Brookline or in Frankfurt, Germany. On June 4 and on July 3 the draft board again sent Cort notices to report for a physical examination, the first notice for examination on July 1 in Brookline, and the second for examination within 30 days in Frankfurt. He did not appear at either place, and the board on August 13 ordered him to report for induction on September 14, 1953. He did not report, and consequently he was indicted in December 1954 for violation of § 12(a) of the Selective Service Act of 1948 [5] by reason of his failure to report for induction. This indictment is still outstanding. His complaint in this action states that he did not report for induction because he believed 'that the induction order was not issued in good faith to secure his military services, that his past political associations and present physical disabilities made him ineligible for such service, and that he was being ordered to report back to the United States to be served with a Congressional committee subpoena or indicted under the Smith Act * * *.' Meanwhile, the British Home Office had refused to renew his residence permit, and in mid-1954 he and his family moved to Prague, Czechoslovakia, where he took a position as Senior Scientific Worker at the Cardiovascular Institute. He has lived there since.

In April 1959, his previous United States passport having long since expired, Cort applied at the American Embassy in Prague for a new one. His complaint in this action states that he wanted the passport 'in order to return to the United States with his wife and children so that he might fulfill his obligations under the Selective Service laws and his wife might secure medical treatment for multiple sclerosis.' Mrs. Cort received a passport and came to this country temporarily in late 1959, both for purposes of medical treatment and to facilitate arrangements for her husband's return. Cort's application, however, was denied on the ground that he had, by his failure to report for induction on September 14, 1953, as ordered, remained outside the country to avoid military service and thereby automatically forfeited his American citizenship by virtue of § 349(a)(10) of the Immigration and Nationality Act of 1952, which had superseded § 401(j). The State Department's Passport Board of Review affirmed the finding of expatriation, and the Department's legal adviser affirmed the decision. Cort, through counsel, thereupon brought this suit in the District Court for the District of Columbia for a declaratory judgment that he is a citizen of the United States, for an injunction against enforcement of § 349(a)(10) because of its unconstitutionality, and for an order directing revocation of the certificate of loss of nationality and issuance of a United States passport to him. Pursuant to Cort's demand, a three-judge court was convened. The court held that he had remained outside the United States to evade military service, but that § 349(a)(10) is unconstitutional because 'We perceive no substantial difference between the constitutional issue in the Trop case and the one facing us.' It therefore concluded that Cort is a citizen of this country and enjoined the Secretary of State from withholding a passport from Cort on the ground that he is not a citizen and from otherwise interfering with his rights of citizenship. Cort v. Herter, D.C., 187 F.Supp. 683.

The Secretary of State appealed directly to this Court, 28 U.S.C. §§ 1252, 1253, which postponed the question of jurisdiction to the hearing of the case on the merits. Herter v. Cort, 365 U.S. 808, 81 S.Ct. 691, 5 L.Ed.2d 690. The preliminary question of jurisdiction was affirmatively resolved last Term, Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, leaving the issue of the validity of § 349(a)(10) for decision now, after reargument. 369 U.S., at 380, 82 S.Ct. at 794.

Before we consider the essential question in these cases, the constitutionality of §§ 401(j) and 349(a)(10), two preliminary issues peculiar to No. 2 must be discussed.

At the threshold in Mendoza-Martinez' case is the question whether the proceeding should have been heard by a three-judge District Court convened pursuant to 28 U.S.C. § 2282, which requires such a tribunal as a prerequisite to the granting of any 'interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States * * *.' If § 2282 governs this litigation, we are once again faced with the prospect of a remand and a new trial, this time by a three-judge panel. We are, however, satisfied that the case was properly heard by a single district judge, as both parties urge.

In the complaint under which the case was tried the first and second times, Mendoza-Martinez asked for no injunctive relief, and none was granted. In the amended complaint which he filed in 1960 to put in issue the question of collateral estoppel, he added a prayer asking the court to adjudge 'that defendants herein are enjoined and restrained henceforth from enforcing' all deportation orders against him. However, it is abundantly clear from the amended trial stipulation which was entered into by the parties and approved by the judge to 'govern the course of the trial,' that the issues were framed so as not to contemplate any injunctive relief. The first question was articulated only in terms of whether the Government was 'herein estopped by reason of the indictment and conviction of plaintiff for (draft evasion) * * * from denying that the plaintiff is now a national and citizen of the United States.' The second question asked only for a declaration as to whether § 401(j) was 'unconstitutional, either on its face or as applied to the plaintiff herein.' The conclusion that no request for injunctive relief nor even any contemplation of it attended the case as it went to trial is borne out by the total lack of reference to injunctive relief in the District Court's memorandum opinion, findings of fact and conclusions of law, and judgment. See Mendoza-Martinez v. Rogers, D.C., 192 F.Supp. 1. The relief granted was merely a declaration that the 1944 Amendment 'is unconstitutional, both on its face and as applied to the plaintiff herein,' and '(t)hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States.' Thus, despite the amendment to Mendoza-Martinez' complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401(j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court.

Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2281, [6] requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281 'was a means of protection the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. * * * The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy. This was the aim of Congress * * *.' Phillips v. United States, 312 U.S. 246, 250-251, 61 S.Ct. 480, 483, 85 L.Ed. 800. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge's order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong.Rec. 479-481, 2142-2143 (1937).

The present action, which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief, involves none of the dangers to which Congress was addressing itself. The relief sought an the order entered affected an Act of Congress in a totally noncoercive fashion. There was no interdiction of the operation at large of the statute. It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained. Thus there was no reason whatever in this case to invoke the special and extraordinary procedure of a three-judge court. Compare Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, decided this day.

Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to the suggestion of this Court earlier that year, charged that 'the government of the United States has admitted the fact of his United States citizenship by virtue of the indictment and judgment of conviction (in 1947 for draft evasion) * * * and is therefore collaterally estopped now to deny such citizenship * * *.' The District Court rejected this assertion. Mendoza-Martinez renews it here as an alternative ground for upholding the judgment entered below 'That the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States.' 192 F.Supp., at 3.

We too reject Mendoza-Martinez' contention on this point. His argument, stated more fully, is as follows: The Selective Training and Service Act of 1940 applies only to citizens and resident aliens. Both the indictment and the judgment spoke in terms of his having remained the Mexico for the entire period from November 15, 1942, until November 1, 1946, when he returned to this country. [7] For the period from September 27, 1944, when § 401(j) became effective, until November 1, 1946, he could not have been in violation of our draft laws unless he remained a citizen of the United States, since the draft laws do not apply to nonresident aliens. Therefore, he concludes, the Government must be taken to have admitted that he did not lose his citizenship by remaining outside the country after September 27, 1944, because it charged him with draft evasion for that period as well as for the period preceding that date.

It is true that 'as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered,' Cromwell v. County of Sac, 94 U.S. 351, 353, 24 L.Ed. 195, the findings in a prior criminal proceeding may estop a party in a subsequent civil action, Emich Motors Corp. v. General Motors Corp., 340 U.S. 558, 568-569, 71 S.Ct. 408, 413 414, 95 L.Ed. 534, and that the United Staes may be estopped to deny even an erroneous prior determination of status, United States v. Moser, 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262. However, Mendoza-Martinez' citizenship status was not at issue in his trial for draft evasion. Putting aside the fact that he pleaded guilty, which in itself may support the conclusion that his citizenship status was not litigated and thereby without more preclude his assertion of estoppel, [8] the basic flaw in his argument is in the assertion that he was charged with a continuing violation of the draft laws while he remained in Mexico, particularly after September 27, 1944, the date on which § 401(j) became effective. He was in fact charged with a violation 'on or about November 15, 1942,' because he 'did knowingly evade service * * * in that he did knowingly depart from the United States and go to a foreign county, namely: Mexico, for the purpose of evading service * * *.' This constituted the alleged violation. The additional language that he 'did there remain until on or about November 1, 1946,' was merely surplusage in relation to the substantive offense, although it might, for example, serve a purpose in relation to problems connected with the tolling of the statute of limitations. No language appears charging the elements of violation-knowledge and purpose to evade in connection with it. The only crime charged is what happened 'on or about November 15, 1942,' and conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that date, [9] in nowise estopped the Government with reference to his status after September 27, 1944.

The trial court's judgment was worded no differently. Mendoza-Martinez was convicted of:

'Having on or about November 15th 1942, knowingly departed from the United States to Mexico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st 1946.'

Again, the language relating to the time during which Mendoza-Martinez remained in Mexico was not tied to the words stating knowledge and purpose to evade service. Thus, the conviction entailed no actual or necessary finding about Mendoza-Martinez' citizenship status between September 27, 1944, and November 1, 1946, and the Government was not estopped from denying his citizenship in the present proceedings.

A. Basic Principles.

Since the validity of an Act of Congress is involved, we begin our analysis mindful that the function we are now discharging is 'the gravest and most delicate duty that this Court is called upon to perform.' Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (separate opinion of Holmes, J.). This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of our Constitution.

We deal with the contending constitutional arguments in the context of certain basic and sometimes conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms. [10] The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights. [11] While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching, [12] for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government. [13]

These principles, stemming on the one hand from the precious nature of the constitutionally guaranteed rights of citizenship, and on the other from the powers of Congress and the related obligations of individual citizens, are urged upon us by the parties here. The Government argues that §§ 401(j) and 349(a)(10) are valid as an exercise of Congress' power over foreign affairs, of its war power, and of the inherent sovereignty of the Government. Appellees urge the provisions' invalidity as not within any of the powers asserted, and as imposing a cruel and unusual punishment.

We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship particularly American citizenship, which is 'one of the most valuable rights in the world today,' Report of the President's Commission on Immigration and Naturalization (1953), 235-has grave practical consequences. An expatriate who, like Cort, had no other nationality becomes a stateless person-a person who not only has no rights as an American citizen, but no membership in any national entity whatsoever. 'Such individuals as do not possess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty * * * no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals.' 1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), § 291, at 640. [14] The calamity is '(n)ot the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever * * *.' Arendt, The Origins of Totalitarianism (1951), 294. The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him, [15] or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship. [16]

The basic principles here involved, the gravity of the issue, and the arguments bearing upon Congress' power to forfeit citizenship were considered by the Court in relation to different provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years ago: Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568, and Trop v. Dulles, 356 U.S. 86, 78 S.Ct. 590.

In Perez, § 401(e), which imposes loss of nationality for '(v)oting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory,' was upheld by a closely divided Court as a constitutional exercise of Congress' power to regulate foreign affairs. The Court reasoned that since withdrawal of citizenship of Americans who vote in foreign elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and Proper Clause. Since the Court sustained the application of § 401(e) to denationalize Perez, it did not have to deal with § 401(j), upon which the Government had also relied, and it expressly declined to rule on the constitutionality of that section, 356 U.S., at 62, 78 S.Ct., at 578. There were three opinions written in dissent. The principal one, that of The Chief Justice, recognized 'that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country,' id., at 68, 78 S.Ct. at 581, but concluded that '(t)he mere act of voting in a foreign election, however, without regard to the circumstances attending the participation, is not sufficient to show a voluntary abandonment of citizenship,' id., at 78, 78 S.Ct., at 586.

In Trop, § 401(g), forfeiting the citizenship of any American who is guilty of '(d)eserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged * * *,' was declared unconstitutional. There was no opinion of the Court. The Chief Justice wrote an opinion for four members of the Court, concluding that § 401(g) was invalid for the same reason that he had urged as to § 401(e) in his dissent in Perez, and that it was also invalid as a cruel and unusual punishment imposed in violation of the Eighth Amendment. Justice Brennan conceded that it is 'paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war,' 356 U.S., at 105, 78 S.Ct., at 600. Notwithstanding, he concurred because 'the requisite rational relation between this statute and the war power does not appear * * *,' id., at 114, 78 S.Ct., at 605. Justice Frankfurter, joined by three other Justices, dissented on the ground that § 401(g) did not impose punishment at all, let alone cruel and unusual punishment, and was within the war powers of Congress.

C. Sections 401(j) and 349(a)(10) as Punishment.

The present cases present for decision the constitutionality of a section not passed upon in either Perez or Trop-s 401(j), added in 1944, and its successor and present counterpart, § 349(a)(10) of the Immigration and Nationality Act of 1952. We have come to the conclusion that there is a basic question in the present cases, the answer to which obviates a choice here between the powers of Congress and the constitutional guarantee of citizenship. That issue is whether the statutes here, which automatically-without prior court or administrative proceedings-impose forfeiture of citizenship, are essentially penal in character, and consequently have deprived the appellees of their citizenship without due process of law and without according them the rights guaranteed by the Fifth and Sixth Amendments, including notice, confrontation, compulsory process for obtaining witnesses, trial by jury, and assistance of counsel. This issue was not relevant in Trop because, in contrast to §§ 401(j) and 349(a)(10), § 401(g) required conviction by court-martial for desertion before forfeiture of citizenship could be inflicted. In Perez the contention that § 401(e) was penal in character was impliedly rejected by the Court's holding, based on legislative history totally different from that underlying §§ 401(j) and 349(a)(10), that voting in a political election in a foreign state 'is regulable by Congress under its power to deal with foreign affairs.' 356 U.S., at 59, 78 S.Ct., at 576. Compare Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435. Indeed, in Trop The Chief Justice observed that 'Section 401(j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed * * *,' 356 U.S., at 94, 78 S.Ct., at 594, and Justice Frankfurter in dissent alluded to the due process overtones of the requirement in § 401(g) of prior conviction for desertion by court-martial, id., at 116-117, 78 S.Ct., at 606.

It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due process. [17] The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. 'The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.' Ex parte Milligan, 4 Wall, 2, 120-121, 18 L.Ed. 281. [18] The rights guaranteed by the Fifth and Sixth Amendments are 'preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service.' Id., at 123. [19] '(I)f society is disturbed by civil commotion-if the passions of men are aroused and the restraints of law weakened, if not disregarded-these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.' Id., at 124.

We hold §§ 401(j) and 349(a)(10) invalid because in them Congress has plainly employed the sanction of deprivation of nationality as a punishment-for the offense of leaving or remaining outside the country to evade military service-without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments. [20] Our forefathers 'intended to safeguard the people of this country from punishment without trial by duly constituted courts. * * * And even the courts to which this important function was entrusted, were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, (and) must be clearly informed of the charge against him * * *.' United States v. Lovett, 328 U.S. 303, 317, 66 S.Ct. 1073, 1080, 90 L.Ed. 1252. See also Chambers v. Florida, 309 U.S. 227, 235-238, 60 S.Ct. 472, 476-477, 84 L.Ed. 716.

As the Government concedes, §§ 401(j) and 349(a)(10) automatically strip an American of his citizenship, with concomitant deprivation 'of all that makes life worth living,' Ng Fung Ho v. White, 259 U.S. 276, 284-285, 42 S.Ct. 492, 495, 66 L.Ed. 938, whenever a citizen departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Conviction for draft evasion, as Cort's case illustrates, is not prerequisite to the operation of this sanction. [21] Independently of prosecution, forfeiture of citizenship attaches when the statutory set of facts develops. It is argued that the availability after the fact of administrative and judicial proceedings, including the machinery the Court approved last Term in Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, to contest the validity of the sanction meets the measure of due process. But the legislative history and judicial expression with respect to every congressional enactment relating to the provisions in question dating back to 1865 establish that forfeiture of citizenship is a penalty for the act of leaving or staying outside the country to avoid the draft. This being so, the Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking. We need go no further.

The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint, [22] whether it has historically been regarded as a punishment, [23] whether it comes into play only on a finding of scienter, [24] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [25] whether the behavior to which it applies is already a crime, [26] whether an alternative purpose to which it may rationally be connected is assignable for it, [27] and whether it appears excessive in relation to the alternative purpose assigned [28] are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face. Here, although we are convinced that application of these criteria to the face of the statutes supports the conclusion that they are punitive, a detailed examination along such lines is unnecessary, because the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as punitive. [29] A study of the history of the predecessor of § 401(j), which 'is worth a volume of logic,' New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963, coupled with a reading of Congress' reasons for enacting § 401(j), compels a conclusion that the statute's primary function is to serve as an additional penalty for a special category of draft evader. [30] Compare Trop v. Dulles, supra, 356 U.S., at 107-110, 78 S.Ct., at 601-603 (Brennan, J., concurring).

1. The Predecessor Statute and Judicial Construction.

The subsections here in question have their origin in part of a Civil War 'Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes.' Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with deserters and draft evaders, was in terms punitive, providing that 'in addition to the other lawful penalties of the crime of desertion,' persons guilty thereof 'shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens * * * and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the military or naval service, duly ordered, shall be liable to the penalties of this section.' [31]

The debates in Congress in 1865 confirm that the use of punitive language in § 21 was not accidental. The section as originally proposed inflicted loss of rights of citizenship only on deserters. Senator Morrill of Maine proposed amending the section to cover persons who leave the country to avoid the draft, stating, 'I do not see why the same principle should not extend to those who leave the country to avoid the draft.' Cong.Globe, 38th Cong., 2d Sess. 642 (1865). This 'same principle' was punitive, because Senator Morrill was also worried that insofar as the section as originally proposed 'provides for a penalty' to be imposed on persons who had theretofore deserted, there was question 'whether it is not an ex post facto law, whether it is not fixing a penalty for an act already done.' Ibid. Senator Johnson of Maryland attempted to allay Senator Morrill's concern by explaining that

'the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on those who have deserted and who shall not return within sixty days. The crime for which the punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return within sixty days. It is clearly within the power of Congress.' Ibid.

This explanation satisfied the Senate sufficiently so that they accepted the section, with Senator Morrill's amendment, although Senator Hendricks of Indiana made one last speech in an effort to convince his colleagues of the bill's ex post facto nature and, even apart from that, of the excessiveness of the punishment, particularly as applied to draft evaders:

'It seems to me to be very clear that this section proposes to punish desertions which have already taken place, with a penalty which the law does not already prescribe. In other words it is an ex post facto criminal law which I think we cannot pass. * * * One of the penalties known very well to the criminal laws of the country is the denial of the right of suffrage and the right to hold offices of trust or profit.

'It seems to me this objection to the section is very clear, but I desire to suggest further that this section punishes desertions that may hereafter take place in the same manner, and it is known to Senators that one desertion recently created is not reporting when notified of the draft. * * * I submit to Senators that it is a horrible thing to deprive a man of his citizenship, of that which is his pride and honor, from the mere fact that he has been unable to report upon the day specified after being notified that he has been drafted. Certainly the punishment for desertion is severe enough. It extends now from the denial of pay up to death; that entire compass is given for the punishment of this offense. Why add this other? It cannot do any good.' Id., at 643.

In the House, the motion of New York's Representative Townsend to strike the section as a 'despotic measure' which would 'have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges,' was met by the argument of Representative Schenck of Ohio, the Chairman of the Military Committee, that 'Here is a penalty that is lawful, wise, proper, and that should be added to the other lawful penalties that now exist against deserters.' Id., at 1155. After Representative Wilson of Iowa proposed an amendment, later accepted and placed in the enacted version of the bill, extending the draft-evasion portion to apply to persons leaving 'the district in which they are enrolled' in addition to those leaving the country, Representative J. C. Allen of Illinois raised the ex post facto objection to the section as a whole. Id., at 1155-1156. Representative Schenck answered him much as Senator Johnson had replied in the Senate:

'The gentleman from Illinois (Mr. J. C. Allen) misapprehends this section from not having looked carefully, as I think, into its language. He thinks it retroactive. It is not so. It does not provide for punishing those who have deserted in their character of deserters acquired by having gone before the passage of the law, but of those only, who, being deserters, shall not return and report themselves for duty within sixty days. If the gentleman looks at the language of the section, he will find that we have carefully avoided making it retroactive. We give those who have deserted their country and their flag sixty days for repentance and return.

'Mr. J. C. ALLEN. Will not the infliction of this penalty on those who have failed to return to the Army be an additional penalty that did not exist at the time they deserted?

'Mr. SCHENCK. Yes, sir.

'Mr. J. C. ALLEN. Does not that make the law retroactive?

'Mr. SCHENCK. They are deserters now. We take them up in their present status and character as deserters, and punish them for continuing in that character. The gentleman refers to lawyers here. I believe he is a good lawyer himself. Does he not know that if a man steals a horse and runs away with it to the next county it is a continual act of larceny until he delivers up the horse?' Id., at 1156.

The significance of these debates is, as these excerpts plainly show, that while there was a difference in both Houses as to whether the statute would be an ex post facto law, there was agreement among all the speakers on both sides of that issue, as well as on both sides of the merits of the bill generally, that deprivation of rights of citizenship for leaving the country to evade the draft was a 'penalty' and 'punishment' for a 'crime' and an 'offense' and a violation of a 'criminal law.'

A number of state court judicial decisions rendered shortly after the Civil War lend impressive support to the conclusion that the predecessor of §§ 401(j) and 349(a)(10), § 21 of the 1865 statute, was a criminal statute imposing an additional punishment for desertion and draft evasion. The first and most important of these was Huber v. Reily, 53 Pa. 112 (1866), in which, as in most of the cases which followed, [32] the plaintiff had brought an action against the election judge of his home township, alleging that the defendant had refused to receive his ballot on the ground that plaintiff was a deserter and thereby disenfranchised under § 21, and that such refusal was wrongful because § 21 was unconstitutional. The asserted grounds of invalidity were that § 21 was an expost facto law, that it was an attempt by Congress to regulate suffrage in the States and therefore outside Congress' sphere of power, and that it proposed to inflict pains and penalties without a trial and conviction, and was therefore prohibited by the Bill of Rights. In an opinion by Justice Strong, later a member of this Court, the Pennsylvania Supreme Court first characterized the statute in a way which compelled discussion of the asserted grounds of unconstitutionality:

'The Act of Congress is highly penal. It imposes forfeiture of citizenship and deprivation of the rights of citizenship as penalties for the commission of a crime. Its avowed purpose is to add to the penalties which the law had previously affixed to the offense of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties.' 53 Pa., at 114-115.

It then answered the ex post facto argument as it had been answered on the floor of Congress, that the offense could as well be in the continued refusal to render service as in the original desertion. The second contention was met with the statement that 'The enactment operates upon an individual offender, punishes him for violation of the Federal law by deprivation of his citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter. It does no more than increase the penalties of the law upon the commission of crime.' Id., at 116. 'The third objection,' the court continued, 'would be a very grave one if the act does in reality impose pains and penalties before and without a conviction by due process of law.' Id., at 116-117. The court then summarized the protections guaranteed by the Fifth and Sixth Amendments, and concluded that it was not consistent with these rights to empower a 'judge of elections or a board of election officers constituted under state laws * * * to adjudge the guilt or innocence of an alleged violator of the laws of the United States.' Id., at 117. However, the court decided that since the penalty contemplated by § 21 'is added to what the law had previously enacted to be the penalty of desertion, as imprisonment is sometimes added to punishment by fine,' it must have been intended 'that it should be incurred in the same way, and imposed by the same tribunal that was authorized to impose the other penalties for the offence.' Id., at 119. '(T)he forfeiture which it prescribes, like all other penalties for desertion, must be adjudged to the convicted person, after trial by a court-martial, and sentence approved. For the conviction and sentence of such a court there can be no substitute.' Id., at 120. (Emphasis in original.) Accordingly, since the plaintiff had not been so convicted, the court held that he was not disenfranchised.

Subsequent state court decisions in the post-Civil War period followed Huber v. Reily, both in result and reasoning. State v. Symonds, 57 Me. 148 (1869); Severance v. Healey, 50 N.H. 448 (1870); Gotcheus v. Matheson, 58 Barb.(N.Y.) 152 (1870); McCafferty v. Guyer, 59 Pa. 109 (1868).

Ultimately and significantly, in Kurtz v. Moffitt, 115 U.S. 487, 6 S.Ct. 148, 29 L.Ed. 458, a case dealing with the question whether a city police officer had the power to arrest a military deserter, this Court recognized both the nature of the sanction imposed by § 21 and the attendant necessity of procedural safeguards, approvingly citing the above decisions:

'The provisions of §§ 1996 and 1998, which re-enact the act of March 3, 1865, ch. 79, § 21, 13 Stat. 490, and subject every person deserting the military service of the United States to additional penalties, namely, forfeiture of all rights of citizenship, and disqualification to hold any office of trust or profit, can only take effect upon conviction by a court martial, as was clearly shown by Mr. Justice Strong, when a judge of the Supreme Court of Pennsylvania, in Huber v. Reily, 53 Penn.St. 112, and has been uniformly held by the civil courts as well as by the military authorities. State v. Symonds, 57 Maine, 148; Severance v. Healey, 50 N.H. 448; Goetcheus v. Matthewson, 61 N.Y. 420; Winthrop's Digest of Judge Advocate General's Opinions, 225.' 115 U.S., at 501-502, 6 S.Ct., at 153.

Section 21 remained on the books unchanged, except for being distributed in the Revised Statutes as §§ 1996 and 1998, until 1912, when Congress reenacted it with an amendment making it inapplicable to peacetime violations and giving the President power to mitigate or remit punishment previously imposed on peacetime violators, Act of August 22, 1912, 37 Stat. 356. The legislative history of that amendment is also instructive for our present inquiry. The discussion in both Houses had reference only to the penalties as operative on deserters, no doubt because there was no peacetime draft to evade, but since the 1865 statute dealt without distinction with both desertion and leaving the jurisdiction to evade, there is no reason to suppose the discussion quoted below to be any less applicable to the latter type of misconduct. The House Committee Report, H.R.Rep.No.335, 62d Cong., 2d Sess. (1912), which was quoted in its entirety in the Senate Committee Report, S.Rep.No.910, 62d Cong., 2d Sess. 3-6 (1912), stated that 'In addition to the service penalty imposed by the court-martial, the law, as it now stands, imposes the further and most drastic punishment of loss of rights of citizenship * * *. There are in the United States to-day thousands of men who are literally men without a country and their numbers will be constantly added to until the drastic civil-war measure which adds this heavy penalty to an already severe punishment imposed by military law, is repealed.' H.R.Rep.No.335, supra, at 2. In reporting the bill out of the Committee on Naval Affairs, Representative Roberts of Massachusetts, its author, stated that 'the bill now under consideration is intended to remove one of the harshest penalties that can be imposed upon a man for an offense, to wit, the loss of rights to citizenship. * * * (S)uch a drastic penalty was entirely too severe to be imposed upon an American citizen in time of peace.' He detailed the penalties meted out by court-martial for desertion, and then referred to the 'additional penalty of loss of citizenship,' which, he concluded, is 'a barbarous punishment.' 48 Cong.Rec. 2903 (1912). Senator Bristow of Kansas, a member of his chamber's Committee on Military Affairs, also referred in discussing the bill to the forfeiture of rights of citizenship as a 'penalty,' and said that there is no reason why a peacetime offender should be 'punished so severely.' 48 Cong.Rec. 9542 (1912).

A somewhat similar amendment had been passed by both Houses of Congress in 1908 but vetoed by the President. [33] The House Committee Report on that occasion, H.R.Rep.No.1340, 60th Cong., 1st Sess. (1908), consisted mainly of a letter from the Secretary of the Navy to the Congress, and of his annual report. In both documents he referred to loss of citizenship as a 'punishment,' and as one of the 'penalties' for desertion. Representative Roberts spoke in 1908, as he was to do once more in 1912, of the 'enormity of the punishment' and the 'horrible punishment,' and said, 'Conviction itself under the existing law forfeits citizenship. That is the monstrosity of the law.' 43 Cong.Rec. 111 (1908). The entire discussion, id., at 110-114, was based on the premise that loss of citizenship is a punishment for desertion, the point at issue as in 1912, being whether it was too severe a punishment for peacetime imposition. At one point Representative Roberts said, 'Loss of citizenship is a punishment,' to which Representative Hull of Iowa replied, 'Certainly.' Id., at 114.

Section 504 of the Nationality Act of 1940, 54 Stat. 1172, repealed the portion of the 1865 statute which dealt with flight from the jurisdiction to avoid the draft. However, in connection with the provision governing loss of citizenship for desertion, which was enacted as § 401(g) and declared unconstitutional in Trop v. Dulles, supra, the President's committee of advisers reported that the provisions of the 1865 Act had been 'distinctly penal in character,' and concluded that 'They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial.' [34] Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. 68 (Comm.Print 1939). Section 401(g) was therefore worded so that loss of nationality could only occur upon conviction for desertion by court-martial. When, however, § 401(j) was enacted in 1944, no such procedural safeguards were built in. See Trop v. Dulles, supra, 356 U.S. at 93-94, 78 S.Ct., at 594. Thus, whereas for Justice Brennan concurring in Trop the conclusion that expatriation under § 401(g) was punishment was 'but the beginning of critical inquiry,' 356 U.S., at 110, 78 S.Ct., at 603, a similar conclusion with reference to §§ 401(j) and 349(a)(10) is sufficient to sustain the holding that they are unconstitutional.

The immediate legislative history of § 401(j) confirms the conclusion, based upon study of the earlier legislative and judicial history, [35] that it is punitive in nature. The language of the section was, to begin with, quite obviously patterned on that of its predecssor, an understandable fact since the draft of the bill was submitted to the Congress by Attorney General Biddle along with a letter to Chairman Russell of the Senate Immigration Committee, in which the Attorney General referred for precedent to the 1912 reenactment of the 1865 statute. This letter, which was the impetus for the enactment of the bill, was quoted in full text in support of it in both the House and Senate Committee Reports, H.R.Rep. No. 1229, 78th Cong., 2d Sess. 2-3 (1944); S.Rep. No. 1075, 78th Cong., 2d Sess. 2 (1944), and is set out in the margin. [36] The Senate Report stated that it 'fully explains the purpose of the bill.' S.Rep. No. 1075, supra, at 1. The letter was couched entirely in terms of an argument that citizens who had left the country in order to escape military service should be dealt with, and that loss of citizenship was a proper way to deal with them. There was no reference to the societal good that would be wrought by the legislation, nor to any improvement in soldier morale or in the conduct of war generally that would be gained by the passage of the statute. The House Committee Report and the sponsors of the bill endorsed it on the same basis. The report referred for support to the fact that the FBI files showed 'over 800 draft delinquents' in the El Paso area alone who had crossed to Mexico to evade the draft. H.R.Rep. No. 1229, supra, at 2. The obvious inference to be drawn from the report, the example it contained, and the lack of mention of any broader purpose is that Congress was concerned solely with inflicting effective retribution upon this class of draft evaders and, no doubt, on others similarly situated. Thus, on the floor of the House, Representative Dickstein of New York, the Chairman of the House Committee on Immigration and Naturalization, explained the bill solely as a means of dealing with 'draft dodgers who left this country knowing that there was a possibility that they might be drafted in this war and that they might have to serve in the armed forces * * *.' He implied that the bill was necessary to frustrate their 'idea of evading military service and of returning after the war is over, and taking their old places in our society.' 90 Cong.Rec. 3261 (1944). Senator Russell, who was manager of the bill as well as Chairman of the Senate Immigration Committee, explained it in similar terms:

'Certainly those who, having enjoyed the advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act, should be penalized in some measure. * * * Any American citizen who is convicted of violating the Selective Service Act loses his citizenship. This bill would merely impose a similar penalty on those who are not subject to the jurisdiction of our courts, the penalty being the same as would result in the case of those who are subject to the jurisdiction of our courts.' 90 Cong.Rec. 7629 (1944). [37]

The Senate and House debates, together with Attorney General Biddle's letter, brought to light no alternative purpose to differentiate the new statute from its predecessor. Indeed, as indicated, the Attorney General's letter specifically relied on the predecessor statute as precedent for this enactment, and both the letter and the debates, consistent with the character of the predecessor statute, referred to reasons for the enactment of the bill which were fundamentally retributive in nature. When all of these considerations are weighed, as they must be, in the context of the incontestibly punitive nature of the predecessor statute, the conclusion that § 401(j) was itself dominantly punitive becomes inescapable. The legislative history of § 349(a)(10) of the Immigration and Nationality Act of 1952, which re-enacted § 401(j), adds nothing to disturb that result. [38] Our conclusion from the legislative and judicial history is, therefore, that Congress in these sections decreed an additional punishment for the crime of draft avoidance in the special category of cases wherein the evader leaves the country. It cannot do this without providing the safeguards which must attend a criminal prosecution. [39]


It is argued that our holding today will have the unfortunate result of immunizing the draft evader who has left the United States from having to suffer any sanction against his conduct, since he must return to this country before he can be apprehended and tried for his crime. The compelling answer to this is that the Bill of Rights which we guard so jealously and the procedures it guarantees are not to be abrogated merely because a guilty man may escape prosecution or for any other expedient reason. Moreover, the truth is that even without being expatriated, the evader living abroad is not in a position to assert the vast majority of his component rights as an American citizen. If he wishes to assert those rights in any real sense he must return to this country, and by doing that he will subject himself to prosecution. In fact, while he is outside the country evading prosecution, the United States may, by proper refusal to exercise its largely discretionary power to afford him diplomatic protection, [40] decline to invoke its sovereign power on his behalf. Since the substantial benefits of American citizenship only come into play upon return to face prosecution, the draft evader who wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within constitutional limits Congress has the power to define. This is what Mendoza-Martinez did, what Cort says he is willing to do, and what others have done. [41] Thus our holding today does not frustrate the effective handling of the problem of draft evaders who leave the United States. [42]

We conclude, for the reasons stated, that §§ 401(j) and 349(a)(10) are punitive and as such cannot constitutionally stand, lacking as they do the procedural safeguards which the Constitution commands. [43] We recognize that draft evasion, particularly in time of war, is a heinous offense, and should and can be properly punished. Dating back to Magna Carta, however, it has been an abiding principle governing the lives of civilized men that 'no freeman shall be taken or imprisoned or disseised or outlawed or exiled * * * without the judgment of his peers or by the law of the land * * *.' [44] What we hold is only that, in keeping with this cherished tradition, punishment cannot be imposed 'without due process of law.' Any lesser holding would ignore the constitutional mandate upon which our essential liberties depend. Therefore the judgments of the District Courts in these cases are affirmed.


Mr. Justice DOUGLAS and Mr. Justice BLACK, while joining the opinion of the Court, adhere to the views expressed in the dissent of Mr. Justice DOUGLAS, in which Mr. Justice BLACK joined, in Perez v. Brownell, 356 U.S. 44, 79, 78 S.Ct. 568, 586, that Congress has no power to deprive a person of the citizenship granted the native-born by § 1, cl. 1, of the Fourteenth Amendment.


^1  In question in No. 2, Kennedy v. Mendoza-Martinez, is § 401(j) of the Nationality Act of 1940, added in 1944, 58 Stat. 746, which reads in full as follows:

'A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by * * *

'(j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.'

Its successor and counterpart, § 349(a)(10) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 267-268, 8 U.S.C. § 1481(a)(10), is challenged in No. 3, Rusk v. Cort, and reads as follows:

'From and after the effective date of this Act a person who is a national of the United States whether by birth or naturalization, shall lose his nationality by-* * *

'(10) departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of national emergency for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States. For the purposes of this paragraph failure to comply with any provision of any compulsory service laws of the United States shall raise the presumption that the departure from or absence from the United States was for the purpose of evading or avoiding training and service in the military, air, or naval forces of the United States.'

^2  54 Stat. 894, as amended, 50 U.S.C.App. (1946 ed.) § 311.

^3  The memorandum opinion in which the quoted statement appears is unreported, but the findings of fact, conclusions of law, and judgment of the court are reported at Mendoza-Martinez v. Rogers, D.C., 192 F.Supp. 1.

^4  64 Stat. 826, 50 U.S.C.App. § 454 et seq.

^5  62 Stat. 622, 50 U.S.C.App. § 462(a). The short title of the Act has since 1951 been the Universal Military Training and Service Act. 65 Stat. 75, 50 U.S.C.App. § 451(a).

^6  In more detail, 28 U.S.C. § 2281 requires a three-judge court to be convened in order to grant 'An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes * * * upon the ground of the unconstitutionality of such statute * * *.'

^7  The indictment was in three counts, but Mendoza-Martinez was convicted only on Count I, which reads in full as follows:

'Defendant Frank Martinez Mendoza, a male person within the class made subject to selective service under the Selective Training and Service Act of 1940, as amended, registered as required by said act and the regulations promulgated thereunder and became a registrant of Local Board No. 137, said board being then and there duly created and acting, under the Selective Service System established by said act, in Kern County, California, in the Northern Division of the Southern District of California; and on or about November 15, 1942, in violation of the provisions of said act and the regulations promulgated thereunder, the defendant did knowingly evade service in the land or naval forces of the United States of America in that he did knowingly depart from the United States and go to a foreign country, namely: Mexico, for the purpose of evading service in the land or naval forces of the United States and did there remain until on or about November 1, 1946.'

The judgment and commitment, similarly, stated that Mendoza-Martinez was convicted of:

'Having on or about November 15th 1942, knowingly departed from the United States to Maxico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st 1946.'

^8  Compare United States v. International Building Co., 345 U.S. 502, 73 S.Ct. 807, 97 L.Ed. 1182, in which a prior judicial determination of a tax issue, based on the parties' stipulation, was refused collateral-estoppel effect in a later action. See also Restatement, Judgments, § 68, comments g.h.i.

^9  Since the Selective Training and Service Act of 1940 applied both to citizens and resident aliens, there was no need to determine in which category Mendoza-Martinez fell 'on or about November 15, 1942.' In the present proceeding it is, of course, not disputed that Mendoza-Martinez was an American citizen on that date.

^10  U.S.Const., Amend. XIV, § 1: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. * * *' This constitutional statement is to be interpreted in light of pre-existing common-law principles governing citizenship. United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890.

^11  There is, however, no disagreement that citizenship may be voluntarily relinquished or abandoned either expressly or by conduct. See, e.g., Perez v. Brownell, 356 U.S. 44, 48-49, 78 S.Ct. 568, 570-571, 2 L.Ed.2d 603; id., at 66-67, 78 S.Ct. at 580 (Warren, C.J., dissenting).

^12  Ex parte Quirin, 317 U.S. 1, 25-26, 63 S.Ct. 1, 9-10, 87 L.Ed. 3. See also Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413; Hirabayashi v. United States 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774.

^13  Mackenzie v. Hare, 239 U.S. 299, 311-312, 36 S.Ct. 106, 108, 60 L.Ed. 297; Perez v. Brownell, supra, 356 U.S., at 57-58, 78 S.Ct., at 575, 576.

^14  See also Garner, Uniformity of Law in Respect to Nationality, 19 Am.J.Int'l L. 547 (1925).

^15  See Seckler-Hudson, Statelessness: With Special Reference to the United States (1934), 244-253; Preuss, International Law and Deprivation of Nationality, 23 Geo.L.J. 250 (1934); Holborn, The Legal Status of Political Refugees, 1920-1938, 32 Am.J.Int'l L. 680 (1938). See also Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956.

^16  The drastic consequences of statelessness have led to reaffirmation in the United Nations Universal Declaration of Human Rights, Article 15, of the right of every individual to retain a nationality. U.N.Doc. No. A/810, pp. 71, 74 (1948) (adopted by the U.N. General Assembly on Dec. 10, 1948), reprinted in UNESCO, Human Rights, A Symposium, App. III (1949). See also A Study on Statelessness, U.N.Doc. No. E/1112 (1949); Second Report on the Elimination or Reduction of Statelessness, U.N.Doc. No. A/CN. 4/75 (1953); Weis, The United Nations Convention on the Reduction of Statelessness, 1961, 11 Int'l & Comp.L.Q. 1073 (1962), and authorities cited therein.

The evils of statelessness were recognized in the Report of the President's Commission on Immigration and Naturalization (1953), 241, and the treatise writers have unanimously disapproved of statutes which denationalize individuals without regard to whether they have dual nationality. Borchard, Diplomatic Protection of Citizens Abroad (1916), §§ 262, 334; Fenwick, International Law (3d ed. 1948), 263; 1 Oppenheim, supra, §§ 313 313a; Gettys, The Law of Citizenship in the United States (1934), 137-138, 160.

^17  War powers: United States v. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 299, 65 L.Ed. 516; Ex parte Endo, 323 U.S. 283, 298-300, 65 S.Ct. 208, 216-217, 89 L.Ed. 243. Foreign-affairs powers: Kent v. Dulles, 357 U.S. 116, 125-130, 78 S.Ct. 1113, 1118 1120, 2 L.Ed.2d 1204; Shachtman v. Dulles, 96 U.S.App.D.C. 287, 225 F.2d 938 (1955).

^18  See also Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194; United States v. Cohen Grocery Co., supra; Ex parte Endo, supra.

^19  Compare Ex parte Mason, 105 U.S. 696, 26 L.Ed. 1213; Kahn v. Anderson, 255 U.S. 1, 8-9, 41 S.Ct. 224, 225-226, 65 L.Ed. 469; Ex parte Quirin, 317 U.S. 1, 29, 38-46, 63 S.Ct. 1, 11, 15-19, 87 L.Ed. 3.

^20  'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.' U.S.Const. Amend. V.

'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.' U.S.Const. Amend. VI.

^21  Thus the fact that Mendoza-Martinez was, as it happened, convicted of draft evasion before deportation proceedings were brought against him is of no relevance. Even if the incidence of conviction for draft evasion were potentially relevant to the validity of §§ 401(j) and 349(a)(10), the fact is that the 'crime' created by these sections includes an element not necessary to conviction for violation of § 11 of the Selective Service and Training Act of 1940-'(d)eparting from or remaining outside' the country 'for the purpose of evading or avoiding (military) training and service * * *.' See Comment, Power of Congress to Effect Involuntary Expatriation, 56 Mich.L.Rev. 1142, 1166 n. 102 (1958). Mendoza-Martinez was thus never tried for any crime the elements of which are identical with or totally inclusory of those of § 401(j), and hence was not even arguably accorded the procedural protections we here hold essential.

^22  Ex parte Garland, 4 Wall. 333, 377, 18 L.Ed. 366; United States v. Lovett, 328 U.S. 303, 316, 66 S.Ct. 1073, 1079; Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376.

^23  Cummings v. Missouri, 4 Wall. 277, 320-321, 18 L.Ed. 356; Ex parte Wilson, 114 U.S. 417, 426-429, 5 S.Ct. 935, 939-941, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 350-352, 6 S.Ct. 777, 778, 29 L.Ed. 909; Wong Wing v. United States, 163 U.S. 228, 237-238, 16 S.Ct. 977, 981, 41 L.Ed. 140. Reference to history here is peculiarly appropriate. Though not determinative, it supports our holding to note that forfeiture of citizenship and the related devices of banishment and exile have throughout history been used as punishment. In ancient Rome, 'There were many ways in which a man might loss his freedom, and with his freedom he necessarily lost his citizenship also. Thus he might be sold into slavery as an insolvent debtor, or condemned to the mines for his crimes as servus poenae.' Salmond, Citizenship and Allegiance, 17 L.Q.Rev. 270, 276 (1901). Banishment was a weapon in the English legal arsenal for centuries, 4 Bl.Comm. *377, but it was always 'adjudged a harsh punishment even by men who were accustomed to brutality in the administration of criminal justice.' Maxey, Loss of Nationality: Individual Choice or Government Flat? 26 Albany L.Rev. 151, 164 (1962).

^24  Helwig v. United States, 188 U.S. 605, 610-612, 23 S.Ct. 427, 428-429, 47 L.Ed. 614; Child Labor Tax Case, 259 U.S. 20, 37 38, 42 S.Ct. 449, 450-451, 66 L.Ed. 817.

^25  United States v. Constantine, 296 U.S. 287, 295, 56 S.Ct. 223, 227, 80 L.Ed. 233; Trop v. Dulles, supra, 356 U.S., at 96, 78 S.Ct., at 595 (opinion of The Chief Justice; id., at 111-112, 78 S.Ct., at 603 (Brennan, J., concurring).

^26  Lipke v. Lederer, 259 U.S. 557, 562, 42 S.Ct. 549, 551, 66 L.Ed. 1061; United States v. La Franca, 282 U.S. 568, 572-573, 51 S.Ct. 278, 280, 75 L.Ed. 551; United States v. Constantine, supra, 296 U.S., at 295, 56 S.Ct., at 227.

^27  Cummings v. Missouri, supra, 4 Wall., at 319, 18 L.Ed. 356; Child Labor Tax Case, supra, 259 U.S., at 43, 42 S.Ct., at 452; Lipke v. Lederer, supra, 259 U.S., at 561-562, 42 S.Ct., at 550-551; United States v. La Franca, supra, 282 U.S., at 572, 51 S.Ct., at 280; Trop v. Dulles, supra, 356 U.S., at 96-97, 78 S.Ct., at 595-596; Flemming v. Nestor, supra, 363 U.S., at 615, 617, 80 S.Ct., at 1375, 1376.

^28  Cummings v. Missouri, supra, 4 Wall., at 318, 18 L.Ed. 356; Helwig v. United States, supra, 188 U.S., at 613, 23 S.Ct., at 429; United States v. Constantine, supra, 296 U.S., at 295, 56 S.Ct., at 227; Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149. But cf. Child Labor Tax Case, supra, 259 U.S., at 41, 42 S.Ct., at 452; Flemming v. Nestor, supra, at 614, 616 and n. 9, 80 S.Ct., at 1374, 1375.

^29  Compare Cummings v. Missouri, 4 Wall. 277, 320, 322, 18 L.Ed. 356; United States v. Lovett, 328 U.S. 303, 308-312, 66 S.Ct. 1073, 1075-1077; Wormuth, Legislative Disqualifications as Bills of Attainder, 4 Vand.L.Rev. 603, 608 (1951); Note, Punishment: Its Meaning in Relation to Separation of Power and Substantive Constitutional Restrictions and Its Use in the Lovett, Trop, Perez, and Speiser Cases, 34 Ind.L.J. 231, 279-253 (1959); Comment, The Communist Control Act of 1954, 64 Yale L.J. 712, 723 (1955).

^30  Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297, and Savorgnan v. United States, 338 U.S. 491, 70 S.Ct. 292, 94 L.Ed. 287, whatever the proposition for which they stand in connection with the power of Congress to impose loss of citizenship, compare Perez v. Brownell, supra, 356 U.S., at 51-52, 61-62, 78 S.Ct., at 572, 577-578 (opinion of the Court), with id., at 68-73, 78 S.Ct., at 581-583 (dissenting opinion of The Chief Justice) and id., at 80, 78 S.Ct. at 587 (dissenting opinion of Justice Douglas), are both plainly distinguishable, as is Perez. The statutes in question in each of those cases provided loss of citizenship for noncriminal behavior instead of as an additional sanction attaching to behavior already a crime, and congressional expression attending their passage lacked the overwhelming indications of punitive purpose which characterized the enactments here. Thus, basing decision as we do on the unmistakable penal intent underlying the statutes presently at issue, nothing in our holding is inconsistent with these other cases, and there is no occasion for us to pass upon any question of the power of Congress to act as it did in the statutes involved in those cases. See note 43, infra.

^31  The acts of Mendoza-Martinez and Cort would have been covered by this statute as well as by §§ 401(j) and 349(a)(10).

^32  See p. 31, infra.

^33  The President's veto message to the Senate, S.Doc.No.708, 60th Cong., 2d Sess. (1909), indicates that his refusal to approve the measure was premised partly on the fact that it placed the discretion to remit loss of citizenship rights in the Secretary of the Navy and partly on the President's feeling that it 'would actually encourage hardened offenders to commit a heinous crime against the flag and the nation.' Id., at 2. The former was a fault of the particular form of the measure: The President was worried that power to pardon could not constitutionally be vested in anyone other than himself, and he was further disturbed that placing the power in the Secretary of the Navy would result in discrimination against army people. The President's second reason, however, indicates that to him retention of the law as it stood would serve a purpose always sought to be furthered by the imposition of punishment for crime-deterrence. This is borne out by the statements of the President's advisers in recommending that he veto it. The Secretary of War said, 'Loss of citizenship is a substantial part of the punishment, and doubtless has a very considerable effect in deterring desertions.' Id., at 3. The Secretary of the Navy stated that 'It is believed that the present law regarding the loss of citizenship as a penalty for deserters from the navy acts as a deterrent to many.' Ibid. The Attorney General indicated his agreement with the Secretary of the Navy. Id., at 5.

^34  The advisers' citation of Huber v. Reily, supra, and Kurtz v. Moffitt, supra, in support of the quoted statement suggests their awareness that an underlying conviction is constitutionally mandated.

^35  The relevance of such history in analyzing the character of a present enactment is illustrated by the Court's approach in Helwig v. United States, 188 U.S. 605, 613-619, 23 S.Ct. 427, 429 432, wherein at considerable length it reviewed and relied upon the character of previous relevant legislation in determining whether the statute before it, which imposed an exaction upon importers who undervalued imported goods for duty purposes, was a penalty.

^36  'My Dear Senator: I invite your attention to the desirability of enacting legislation which would provide (1) for the expatriation of citizens of the United States who in time of war or during a national emergency leave the United States or remain outside thereof for the purpose of evading service in the armed forces of the United States, and (2) for the exclusion from the United States of aliens who leave this country for the above mentioned purpose.

'Under existing law a national of the United States, whether by birth or by naturalization, becomes expatriated by operation of law if he (1) obtains naturalization in a foreign state; (2) takes an oath of allegiance to a foreign country; (3) serves in the armed forces of a foreign state if he thereby acquires the nationality of such foreign state; (4) accepts employment under a foreign state for which only

nationals of such state are eligible; (5) votes in a political election in a foreign state or participates in an election or plebiscite to determine the sovereignty over foreign territory; (6) makes a formal renunciation of nationality before a diplomatic or consular officer of the United States in a foreign state; (7) deserts from the armed forces of the United States in time of war and is convicted thereof by a court martial; or (8) is convicted of treason (U.S.C., title 8, sec. 801). Machinery is provided whereby a person who is denied any right or privilege of citizenship on the ground that he has become expatriated may secure a judicial determination of his status; and if he is outside of the United States he is entitled to a certificate of identity which permits him to enter and remain in the United States until his status has been determined by the courts (Nationality Act of 1940, sec. 503; U.S.C., title 8, sec. 903).

'The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Service and Training Act of 1940, if and when they return to this country, it would seem proper that in addition they should lose their United States citizenship. Persons who are unwilling to perform their duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds.

'Accordingly, I recommend the enactment of legislation which would provide (1) for the expatriation of citizens of the United States who in time of war or during a national emergency leave the United States or remain outside thereof for the purpose of evading service in the armed forces of the United States, and (2) for the exclusion from the United States of aliens who leave this country for that purpose. Any person who may be deemed to have become expatriated by operation of the foregoing provision, would be entitled to have his status determined by the courts pursuant to the above-mentioned section of the Nationality Act of 1940.

'Adequate precedent exists for the suggested legislation in that during the First World War a statute was in force which provided

for the expatriation of any person who went beyond the limits of the United States with intent to avoid any draft into the military or naval service (37 Stat. 356). This provision was repealed by section 504 of the Nationality Code of 1940 (54 Stat. 1172; U.S.C., title 8, sec. 904).

'A draft of a proposed bill to effectuate the foregoing purpose is enclosed herewith.

'I have been informed by the Director of the Bureau of the Budget that the proposed legislation is in accord with the program of the President.

'Sincerely yours,

'Attorney General.'

^37  The Senator's statement that 'Any American citizen who is convicted of violating the Selective Service Act loses his citizenship' was apparently a reference to § 401(g), and should accordingly be read in that limited fashion.

^38  Section 349(a)(10) did amend § 401(j) by adding a presumption that failure to comply with any provision of the compulsory service laws of the United States means that the departure from or absence from the United States is for the purpose of avoiding military service. See note 1, supra. Our holding today obviates any necessity for passing upon this provision.

^39  Lipke v. Lederer, 259 U.S. 557, 42 S.Ct. 549; United States v. La Franca, 282 U.S. 568, 51 S.Ct. 278. See Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777; Wong Wing v. United States, 163 U.S. 228, 16 S.Ct. 977. Compare Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; Slochower v. Board of Higher Education, 350 U.S. 551, 554, 556, 76 S.Ct. 637, 638, 640, 100 L.Ed. 692; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460.

^40  Borchard, Diplomatic Protection of Citizens Abroad (1916), §§ 143, 341; see authorities cited in Klubock, Expatriation-Its Origin and Meaning, 38 Notre Dame Law. 1, 11, n. 68 (1962). See also Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375.

^41  The astonishing story of Grover Cleveland Bergdoll is one example. See, e.g., N.Y. Times, Sept. 23, 1927, p. 8, col. 3; May 3, 1935, p. 3, col. 4; Aug. 16, 1935, p. 9, col. 3; Apr. 11, 1939, p. 6, col. 4; May 26, 1939, p. 1, col. 7; May 30, 1939, p. 36, col. 4; Oct. 6, 1939, p. 1, col. 3; Dec. 5, 1939, p. 3, col. 6; 39 Op.Atty.Gen. 303 (1939). Another example is the recent voluntary return of Edward M. Gilbert to face trial on charges for which he could not be extradited. N.Y. Times, Oct. 27, 1962, p. 1, col. 1; Oct. 30, 1962, p. 1, col. 2.

^42  Moreover, the problem is, relatively, extremely small. Over 16,000,000 men served in our armed forces during World War II, and nearly 6,000,000 more served during the Korean crisis. The World Almanac (1963), 735. Yet between the time of the enactment of § 401(j) and June 30, 1961, only about 1,750 persons were denationalized for leaving the country to avoid the draft. Compare figures cited in Klubock, supra, at 49, taken from Immigration and Naturalization Service Annual Reports, with figures cited in Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1165, n. 9 (1955), derived partially from correspondence with the General Counsel to the Immigration and Naturalization Service.

^43  The conclusion that the denationalization sanction, as used in §§ 401(j) and 349(a)(10), is a punishment, obviates any need to determine whether these sections are otherwise within the powers of Congress. That question would have had to be faced only if the foregoing inquiry had disclosed reasons other than punitive for the infliction of loss of nationality in the present context, necessitating decision whether the sections in question were within the powers of Congress as a regulatory scheme, or if the punitive forfeiture of citizenship had been surrounded with appropriate safeguards, obliging decision whether the sections were within the powers of Congress to apply as a criminal sanction.

^44  14 Encyclopaedia Britannica (1957 ed.) 630.

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