328 U.S. 303 (2006), United States v. Lovett

Citation:328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252
Party Name:United States v. Lovett
Case Date:June 03, 1946
Court:United States Supreme Court

Page 303

328 U.S. 303 (2006)

66 S.Ct. 1073, 90 L.Ed. 1252

United States



United States Supreme Court

June 3, 1946



1. The issue as to the validity of § 304 of the Urgent Deficiency Appropriation Act of 1943, providing that, after November 15, 1943, no salary or other compensation shall be paid to certain employees of the Government (specified by name) out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were again appointed by the President with the advice and consent of the Senate prior to such date, is not a mere political issue over which Congress has final say, and a challenge to its constitutionality presents a justiciable question to the courts. P. 313.

(a) It is not a mere appropriation measure over which Congress has complete control. P. 313.

(b) Its purpose was not merely to cut off the employees' compensation through regular disbursing channels, but permanently to bar them from government service, except as jurors or soldiers -- because of what Congress thought of their political beliefs. P. 313.

(c) The Constitution did not contemplate that congressional action aimed at three individuals, which stigmatized their reputations and seriously impaired their chances to earn a living, could never be challenged in court. P. 314.

2. Section 304 violates Article I, § 3, cl. 9 of the Constitution, which forbids the enactment of any bill of attainder or ex post facto law. P. 315.

(a) Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution. Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. P. 315.

(b) Section 304 clearly accomplishes the punishment of named individuals without a judicial trial. P. 316.

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(c) The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found by Congress to be guilty of disloyalty make it no less effective than if it had been done by an Act which designated the conduct as criminal. P. 316.

104 Ct.Cls. 557, 66 F.Supp. 142, affirmed.

The Court of Claims entered judgments in favor of certain government employees for services rendered after November 15, 1943, to whom § 304 of the Urgent Deficiency Appropriation Act of 1943, 57 Stat. 431, 450, forbade payment of any compensation after that date from appropriated funds. 104 Ct.Cls. 557, 66 F.Supp. 142. This Court granted certiorari. 327 U.S. 773. Affirmed, p. 318.

BLACK, J., lead opinion

MR. JUSTICE BLACK delivered the opinion of the Court.

In 1943, the respondents, Lovett, Watson, and Dodd, were, and had been for several years, working for the Government. The government agencies which had lawfully

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employed them were fully satisfied with the quality of their work, and wished to keep them employed on their jobs. Over the protest of those employing agencies, Congress provided in § 304 of the Urgent Deficiency Appropriation Act of 1943, by way of [66 S.Ct. 1074] an amendment attached to the House bill, that, after November 15, 1943, no salary or compensation should be paid respondents out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were, prior to November 15, 1943, again appointed to jobs by the President with the advice and consent of the Senate.1 57 Stat. 431, 450. Notwithstanding the congressional enactment, and the failure of the President to reappoint respondents, the agencies kept all the respondents at work on their jobs for varying periods after November 15, 1943; but their compensation was discontinued after that date. To secure compensation for this post-November 15th work, respondents brought these actions in the Court of

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Claims. They urged that § 304 is unconstitutional and void on the grounds that: (1) The section, properly interpreted, shows a congressional purpose to exercise the power to remove executive employees, a power not entrusted to Congress, but to the Executive Branch of Government under Article II, § 1, 2, 3, and 4 of the Constitution; (2) the section violates Article I, § 9, Clause 3, of the Constitution, which provides that "No Bill of Attainder or ex post facto Law shall be passed"; (3) the section violates the Fifth Amendment, in that it singles out these three respondents and deprives them of their liberty and property without due process of law. The Solicitor General, appearing for the Government, joined in the first two of respondents' contentions, but took no position on the third. House Resolution 386, 89 Cong.Rec. 10882, and Joint Resolution No. 230, 78th Congress, 58 Stat. 113, authorized a special counsel to appear on behalf of the Congress. This counsel denied all three of respondents' contentions. He urged that § 304 was a valid exercise of congressional power under Article I, § 8, Clause 1; § 8, Clause 18, and § 9, Clause 7 of the Constitution, which sections empower Congress "To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States," and

To make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,

and provide that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . ." Counsel for Congress also urged that § 304 did not purport to terminate respondents' employment. According to him, it merely cut off respondents' pay, and deprived governmental agencies of any power to make enforceable contracts with respondents for any further compensation. The contention was that this involved

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simply an exercise of congressional powers over appropriations, which, according to the argument, are plenary, and not subject to judicial review. On this premise, counsel for Congress urged that the challenge [66 S.Ct. 1075] of the constitutionality of § 304 raised no justiciable controversy. The Court of Claims entered judgments in favor of respondents. Some of the judges were of the opinion that § 304, properly interpreted, did not terminate respondents' employment, but only prohibited payment of compensation out of funds generally appropriated, and that, consequently, the continued employment of respondents was valid, and justified their bringing actions for pay in the Court of Claims. Other members of the Court thought § 304 unconstitutional and void, either as a bill of attainder, an encroachment on exclusive executive authority, or a denial of due process. 104 Ct.Cls. 557, 66 F.Supp. 142. We granted certiorari because of the manifest importance of the questions involved.

In this Court, the parties and counsel for Congress have urged the same points as they did in the Court of Claims. According to the view we take, we need not decide whether § 304 is an unconstitutional encroachment on executive power or a denial of due process of law, and the section is not challenged on the ground that it violates the First Amendment. Our inquiry is thus confined to whether the actions, in the light of a proper construction of the Act, present justiciable controversies, and, if so, whether § 304 is a bill of attainder against these respondents, involving a use of power which the Constitution unequivocally declares Congress can never exercise. These questions require an interpretation of the meaning and purpose of the section, which, in turn, requires an understanding of the circumstances leading to its passage. We, consequently, find it necessary to set out these circumstances somewhat in detail.

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In the background of the statute here challenged lies the House of Representatives' feeling in the late thirties that many "subversives" were occupying influential positions in the Government and elsewhere, and that their influence must not remain unchallenged. As part of its program against "subversive" activities, the House, in May, 1938, created a Committee on Un-American Activities, which became known as the Dies Committee, after its Chairman, Congressman Martin Dies. H.Res. 282, 83 Cong.Rec. 7568-7587. This Committee conducted a series of investigations and made lists of people and organizations it thought "subversive." See, e.g., H.Rep. No. 1, 77th Cong., 1st Sess.; H.Rep. No. 2743, 77th Cong., 2d Sess. The creation of the Dies Committee was followed by provisions such as § 9A of the Hatch Act, 53 Stat. 1148, 1149, and § 15(f) and 17(b) of the Emergency Relief Appropriation Act of 1941, 54 Stat. 611, which forbade the holding of a federal job by anyone who was a member of a political party or organization that advocated the overthrow of our constitutional form of Government in the United States. It became the practice to include a similar prohibition in all appropriations acts, together with criminal penalties for its violation.2 Under these provisions, the Federal Bureau of Investigation began wholesale investigations of federal employees, which investigations were financed by special congressional appropriations. 55 Stat. 292, 56 Stat. 468, 482. Thousands were investigated.

While all this was happening, Mr. Dies, on February 1, 1943, in a long speech on the floor of the House, attacked thirty-nine named government employees as "irresponsible, unrepresentative, crackpot, radical bureaucrats," and

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affiliates of "Communist front organizations." Among these named individuals were the three respondents. Congressman Dies told the House that respondents, as well as the other thirty-six individuals he named, were, because of their beliefs and past associations, unfit to...

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