Trop v. Dulles/Concurrence Brennan
MR. JUSTICE BRENNAN, concurring.
In Perez v. Brownell, ante p. 44, also decided today, I agreed with the Court that there was no constitutional infirmity in § 401(e), which expatriates the citizen who votes in a foreign political election. I reach a different conclusion in this case, however, because I believe that § 401(g), which expatriates the wartime deserter who is dishonorably discharged after conviction by court-martial, lies beyond Congress' power to enact. It is, concededly, 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. The loss of citizenship may have as ominous significance for the individual in the one case as in the other. Why then does not the Constitution prevent the expatriation of the voter, as well as the deserter?
Here, as in Perez v. Brownell, we must inquire whether there exists a relevant connection between the particular legislative enactment and the power granted to Congress by the Constitution. The Court there held that such a relevant connection exists between the power to maintain relations with other sovereign nations and the power to expatriate the American who votes in a foreign election. (1) Within the power granted to Congress to regulate the conduct of foreign affairs lies the power to deal with evils which might obstruct or embarrass our diplomatic [p106] interests. Among these evils, Congress might believe, is that of voting by American citizens in political elections of other nations.  Whatever the realities of he situation, many foreign nations may well view political activity on the part of Americans, even if lawful, as either expressions of official American positions or else as improper meddling in affairs not their own. In either event, the reaction is liable to be detrimental to the interests of the United States. (2) Finding that this was an evil which Congress was empowered to prevent, the Court concluded that expatriation was a means reasonably calculated to achieve this end. Expatriation, it should be noted, has the advantage of acting automatically, for the very act of casting the ballot is the act of denationalization, which could have the effect of cutting off American responsibility for the consequences. If a foreign government objects, our answer should be conclusive — the voter is no longer one of ours. Harsh as the consequences may be to the individual concerned, Congress has ordained the loss of citizenship simultaneously with the act of voting because Congress might reasonably believe that, in these circumstances, there is no acceptable alternative to expatriation as a means of avoiding possible embarrassments to our relations with foreign nations.  And where Congress has determined that considerations of the highest national importance indicate a course of action for which an adequate [p107] substitute might rationally appear lacking, I cannot say that this means lies beyond Congress' power to choose. Cf. Korematsu v. United States, 323 U.S. 214.
In contrast to § 401(e), the section with which we are now concerned, § 401(g), draws upon the power of Congress to raise and maintain military forces to wage war. No pretense can here be made that expatriation of the deserter in any way relates to the conduct of foreign affairs, for this statute is not limited in its effects to those who desert in a foreign country or who flee to another land. Nor is this statute limited in its application to the deserter whose conduct imports "elements of an allegiance to another country in some measure, at least, inconsistent with American citizenship." Perez v. Brownell, supra, at 61. The history of this provision, indeed, shows that the essential congressional purpose was a response to the needs of the military in maintaining discipline in the armed forces, especially during wartime. There can be no serious question that included in Congress' power to maintain armies is the power to deal with the problem of desertion, an act plainly destructive not only of the military establishment as such, but, more importantly, of the Nation's ability to wage war effectively. But granting that Congress is authorized to deal with the evil of desertion, we must yet inquire whether expatriation is a means reasonably calculated to achieve this legitimate end, and thereby designed to further the ultimate congressional objective — the successful waging of war.
Expatriation of the deserter originated in the Act of 1865, 13 Stat. 490, when wholesale desertion and draft law violations seriously threatened the effectiveness of the Union armies.  The 1865 Act expressly provided [p108] that expatriation was to be "in addition to the other lawful penalties of the crime of desertion. . . ." This was emphasized in the leading case under the 1865 Act, Huber v. Reily, 53 Pa. 112, decided by the Pennsylvania Supreme Court little more than a year after passage of the Act. The court said that
- Its avowed purpose is to add to the penalties which the law had previously affixed to the offence of desertion from the military or naval service of the United States, and it denominates the additional sanctions provided as penalties.
Id. at 114-115.
But, although it imposed expatriation entirely as an added punishment for crime, the 1865 Act did not expressly make conviction by court-martial a prerequisite to that punishment, as was the case with the conventional penalties. The Pennsylvania Supreme Court felt that Huber was right in contending that this was a serious constitutional objection:
- [T]he act proposes to inflict pains and penalties upon offenders before and without a trial and conviction by due process of law, and . . . it is therefore prohibited by the Bill of Rights.
53 Pa. at 115. The court, however, construed the statute so as to avoid these constitutional difficulties, holding that loss of citizenship, like other penalties for desertion, followed only upon conviction by court-martial.
This view of the 1865 Act was approved by this Court in Kurtz v. Mott, 115 U.S. 487, 501, and, as noted there, the same view "has been uniformly held by the civil courts as well as by the military authorities." See McCafferty v. Guyer, 59 Pa. 109; State v. Symonds, 57 Me. 148; Gotcheus v. Matheson, 58 Barb. (N.Y.) 152; 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001.  Of [p109] particular significance, moreover, is the fact that the Congress has confirmed the correctness of the view that it purposed expatriation of the deserter solely as additional punishment. The present § 401(g) merely incorporates the 1865 provision in the codification which became the 1940 Nationality Act.  But now there is expressly stated what was omitted from the 1865 Act, namely, that the deserter shall be expatriated "if and when he is convicted thereof by court martial. . . ." 54 Stat. 1169, as amended, 8 U.S.C. § 1481(a)(8). 
It is difficult, indeed, to see how expatriation of the deserter helps wage war except as it performs that function when imposed as punishment. It is obvious that expatriation cannot in any wise avoid the harm apprehended by Congress. After the act of desertion, only [p110] punishment can follow, for the harm has been done. The deserter, moreover, does not cease to be an American citizen at the moment he deserts. Indeed, even conviction does not necessarily effect his expatriation, for dishonorable discharge is the condition precedent to loss of citizenship. Therefore, if expatriation is made a consequence of desertion, it must stand together with death and imprisonment — as a form of punishment.
To characterize expatriation as punishment is, of course, but the beginning of critical inquiry. As punishment, it may be extremely harsh, but the crime of desertion may be grave indeed. However, the harshness of the punishment may be an important consideration where the asserted power to expatriate has only a slight or tenuous relation to the granted power. In its material forms, no one can today judge the precise consequences of expatriation, for, happily, American law has had little experience with this status, and it cannot be said hypothetically to what extent the severity of the status may be increased consistently with the demands of due process. But it can be supposed that the consequences of greatest weight, in terms of ultimate impact on the petitioner, are unknown and unknowable.  Indeed, in truth, he may live out his life with but minor inconvenience. He may perhaps live, work, marry, raise a family, and generally experience a satisfactorily happy life. Nevertheless it cannot be denied that the impact of expatriation — especially where statelessness is the upshot — may be severe. Expatriation, in this respect, constitutes an [p111] especially demoralizing sanction. The uncertainty, and the consequent psychological hurt, which must accompany one who becomes an outcast in his own land must be reckoned a substantial factor in the ultimate judgment.
In view of the manifest severity of this sanction, I feel that we should look closely at its probable effect to determine whether Congress' imposition of expatriation as a penal device is justified in reason. Clearly the severity of the penalty, in the case of a serious offense, is not enough to invalidate it where the nature of the penalty is rationally directed to achieve the legitimate ends of punishment.
The novelty of expatriation as punishment does not alone demonstrate its inefficiency. In recent years, we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society's own best protection. Of course, rehabilitation is but one of the several purposes of the penal law. Among other purposes are deterrents of the wrongful act by the threat of punishment and insulation of society from dangerous individuals by imprisonment or execution. What, then, is the relationship of the punishment of expatriation to these ends of the penal law? It is perfectly obvious that it constitutes the very antithesis of rehabilitation, for instead of guiding the offender back into the useful paths of society, it excommunicates him and makes him, literally, an outcast. I can think of no more certain way in which to make a man in whom, perhaps, rest the seeds of serious anti-social behavior more likely to pursue further a career of unlawful activity than to place on him the stigma of the derelict, uncertain of many of his basic rights. Similarly, it must be questioned whether expatriation [p112] can really achieve the other effects sought by society in punitive devices. Certainly it will not insulate society from the deserter, for, unless coupled with banishment, the sanction leaves the offender at large. And, as a deterrent device, this sanction would appear of little effect, for the offender, if not deterred by thought of the specific penalties of long imprisonment or even death, is not very likely to be swayed from his course by the prospect of expatriation.  However insidious and demoralizing may be the actual experience of statelessness, its contemplation in advance seems unlikely to invoke serious misgiving, for none of us yet knows its ramifications.
In the light of these considerations, it is understandable that the Government has not pressed its case on the basis of expatriation of the deserter as punishment for his crime. Rather, the Government argues that the necessary nexus to the granted power is to be found in the idea that legislative withdrawal of citizenship is justified in this case because Trop's desertion constituted a refusal to perform one of the highest duties of American citizenship — the bearing of arms in a time of desperate national peril. It cannot be denied that there is implicit in this a certain rough justice. He who refuses to act as an American should no longer be an American — what could be fairer? But I cannot see that this is anything other than forcing retribution from the offender — naked vengeance. But many acts of desertion certainly fall far short of a "refusal to perform this ultimate duty of American citizenship." [p113] Desertion is defined as "absence without leave accompanied by the intention not to return." Army Manual for Courts-Martial (1928) 142. The offense may be quite technical, as where an officer,
- having tendered his resignation and prior to due notice of the acceptance of the same, quits his post or proper duties without leave and with intent to absent himself permanently therefrom. . . .
Article of War 28 (1920), 41 Stat. 792. Desertion is also committed where a soldier, without having received a regular discharge, reenlists in the same or another service. The youngster, for example, restive at his assignment to a supply depot, who runs off to the front to be in the fight, subjects himself to the possibility of this sanction. Yet the statute imposes the penalty coextensive with the substantive crime. Since many acts of desertion thus certainly fall far short of a "refusal to perform this ultimate duty of American citizenship," it stretches the imagination excessively to establish a rational relation of mere retribution to the ends purported to be served by expatriation of the deserter. I simply cannot accept a judgment that Congress is free to adopt any measure at all to demonstrate its displeasure and exact its penalty from the offender against its laws.
It seems to me that nothing is solved by the uncritical reference to service in the armed forces as the "ultimate duty of American citizenship." Indeed, it is very difficult to imagine, on this theory of power, why Congress cannot impose expatriation as punishment for any crime at all — for tax evasion, for bank robbery, for narcotics offenses. As citizens, we are also called upon to pay our taxes and to obey the laws, and these duties appear to me to be fully as related to the nature of our citizenship as our military obligations. But Congress' asserted power to expatriate the deserter bears to the war powers precisely the same relation as its power to expatriate the tax evader would bear to the taxing power. [p114]
I therefore must conclude that § 401(g) is beyond the power of Congress to enact. Admittedly Congress' belief that expatriation of the deserter might further the war effort may find some — though necessarily slender — support in reason. But here, any substantial achievement, by this device, of Congress' legitimate purposes under the war power seems fairly remote. It is at the same time abundantly clear that these ends could more fully be achieved by alternative methods not open to these objections. In the light of these factors, and conceding all that I possibly can in favor of the enactment, I can only conclude that the requisite rational relation between this statute and the war power does not appear — for, in this relation, the statute is not "really calculated to effect any of the objects entrusted to the government . . . ," M'Culloch v. Maryland, 4 Wheat. 316, 423 — and therefore that § 401(g) falls beyond the domain of Congress.
^ . Some indication of the problem is to be seen in the joint resolutions introduced in both houses of Congress to exempt the two or three thousand Americans who allegedly lost their citizenship by voting in certain Italian elections. See S.J.Res. 47 and H.J.Res. 30, 239, 375, 81st Cong., 1st Sess. All proposed "to suspend the operation of section 401(e) of the Nationality Act of 1940 in certain cases." See also H.R. 6400, 81st Cong., 1st Sess.
^ . Perez v. Brownell did not raise questions under the First Amendment, which, of course, would have the effect in appropriate cases of limiting congressional power otherwise possessed.
^ . A good description of the extent of the problem raised by desertions from the Union armies, and of the extreme measures taken to combat the problem, will be found in Pullen, The Twentieth Maine. A Volunteer Regiment of the Civil War (1957).
^ . The opinion in Huber v. Reily, which was written by Mr. Justice Strong, later a member of this Court, suggested, if it did not hold, that the statutes and considerations of due process required that expatriation, to be accomplished, should be specifically included by the court-martial as part of the sentence. See 53 Pa. at 119-120. The court-martial, under military law, adjudges both guilt and the extent of initial sentence. Jackson v. Taylor, 353 U.S. 569, 574-575, and see Article of War 58 (1920), 41 Stat. 800. However, it has not been the practice specifically to include expatriation as part of the sentence. 2 Winthrop, Military Law and Precedents (2d ed. 1896), 1001.
^ . The provision was limited in 1912 to desertion in time of war, 37 Stat. 356, but otherwise was not revised until carried into the Nationality Act of 1940, 54 Stat. 1169. It was, however, first codified as part of the laws concerning citizenship as § 1998 of the 1874 Revised Statutes.
^ . The reason for the addition of the proviso is stated in a report, Codification of the Nationality Laws of the United States, H.R. Comm.Print, Pt. 1, 76th Cong., 1st Sess., prepared at the request of the President by the Secretary of State, the Attorney General, and the Secretary of Labor, proposing a revision and codification of the nationality laws:
- The provisions of sections 1996 and 1998 of the Revised Statutes are distinctly penal in character. They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial (Huber v. Reilly, 1866, 53 Penn.St. 112; Kurtz v. Moffitt, 1885, 115 U.S. 487).
Id. at 68.
The reference later in the report that § 401 "technically is not a penal law" is to the section as a whole, and not to subdivision (g).
^ . Adjudication of hypothetical and contingent consequences is beyond the function of this Court, and the incidents of expatriation are altogether indefinite. Nonetheless, this very uncertainty of the consequences makes expatriation as punishment severe.
It is also unnecessary to consider whether the consequences would be different for the citizen expatriated under another section than § 401(g).
^ . A deterrent effect is certainly conjectural when we are told that, during World War II, as many as 21,000 soldiers were convicted of desertion and sentenced to be dishonorably discharged. From the fact that the reviewing authorities ultimately remitted the dishonorable discharges in about two-thirds of these cases it is possible to infer that the military itself had no firm belief in the deterrent effects of expatriation.