335 U.S. 160 (1948), 723, Ludecke v. Watkins

Docket Nº:No. 723
Citation:335 U.S. 160, 68 S.Ct. 1429, 92 L.Ed. 1881
Party Name:Ludecke v. Watkins
Case Date:June 21, 1948
Court:United States Supreme Court

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335 U.S. 160 (1948)

68 S.Ct. 1429, 92 L.Ed. 1881




No. 723

United States Supreme Court

June 21, 1948

Argued May 3-4, 1948




Under authority of the Alien Enemy Act of 1798, which empowers the President, whenever there is a "declared war" between the United States and any foreign country, to provide for the removal of alien enemies from the United States, the President, on July 14, 1945, directed the removal of all alien enemies "deemed by the Attorney General to be dangerous" to the public safety. The Attorney General, on January 18, 1946, ordered removal of petitioner, a German national, from the United States. Challenging the validity of the removal order, petitioner instituted habeas corpus proceedings in the Federal District Court to secure his release from detention under the order.


1. The Alien Enemy Act precludes judicial review of the removal order. Pp. 163-166.

2. In the circumstances of relations between the United States and Germany, there exists a "declared war" notwithstanding the cessation of actual hostilities, and the order is enforceable. Pp. 166-170.

3. The Alien Enemy Act, construed as permitting resort to the courts only to challenge its validity and construction, and to raise questions of the existence of a "declared war" and of alien enemy status, does not violate the Bill of lights of the Federal Constitution. Pp. 170-171.

4. The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of the summary power conferred by the Act does not empower the courts to retry such hearings, nor does it make the withholding of such power from the courts a denial of due process. Pp. 171-172.

163 F.2d 143 affirmed.

Petitioner, in custody under an order of the Attorney General for his removal from the United States under the Alien Enemy Act, applied to the District Court for a writ of habeas corpus for release from detention under the

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order. The District Court's denial of the writ was affirmed by the Circuit Court of Appeals. 163 F.2d 143. This Court granted certiorari. 333 U.S. 865. Affirmed, p. 173.

FRANKFURTER, J., lead opinion

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

The Fifth Congress committed to the President these powers:

Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become [68 S.Ct. 1430] so liable; the manner and degree of the restraint to which they shall be subject

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and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom, and to establish any other regulations which are found necessary in the premises and for the public safety.

(Act of July 6, 1798, 1 Stat. 577, R.S. § 4067, as amended, 40 Stat. 531, 50 U.S.C. § 21.)

This Alien Enemy Act has remained the law of the land, virtually unchanged since 1798.1 Throughout these one hundred and fifty years, executive interpretation and decisions of lower courts have found in the Act an authority for the President which is now questioned, and the further claim is made that, if what the President did comes within the Act, the Congress could not give him such power.2 Obviously these are issues which properly brought the case here. 333 U.S. 865.

Petitioner, a German alien enemy,3 was arrested on December

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8, 1941, and, after proceedings before an Alien Enemy Hearing Board on January 16, 1942, was interned by order of the Attorney General, dated February 9, 1942.4 Under authority of the Act of 1798, the President, on July 14, 1945, directed the removal from the United States of all alien enemies "who shall be deemed by the Attorney General to be dangerous to the public pease and safety of the United States." Proclamation 2655, 10 Fed.Reg. 8947. Accordingly, the Attorney General, on January 18, 1946, ordered petitioner's removal.5 Denial of a writ of habeas corpus for release from detention under this order was affirmed by the court below. 163 F.2d 143.

As Congress explicitly recognized in the recent Administrative Procedure Act, some statutes "preclude judicial review." Act of June 11, 1946,§ 10, 60 Stat. 237, 243. Barring questions of interpretation and constitutionality,

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the Alien Enemy Act of 1798 is such a statute. Its terms, purpose, and construction leave no doubt. The language employed [68 S.Ct. 1431] by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress.6 That such was the scope of the Act is established by controlling contemporaneous construction. "The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons," Marshall, C.J., in Brown v. United States, 8 Cranch 110, 126, "appears to me to be as unlimited as the legislature could make it." Washington, J., in Lockington v. Smith, 15 Fed.Cas. No. 8448 at p. 760. The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion.7 This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries, 9 Fed.Cas. No. 5126, and every judge before whom the question has since come has held that the statute barred judicial

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review.8 We would so read the Act if it came before us without the impressive gloss of history.

The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were "deemed by the Attorney General" to be dangerous.9 But such a finding at the President's behest was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon [68 S.Ct. 1432] a finding that in fact an alien was "dangerous." The President was careful to call for the removal of aliens "deemed by the Attorney General to be dangerous." But the short answer is that

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the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized.

And so we reach the claim that, while the President had summary power under the Act, it did not survive cessation of actual hostilities.10 This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war.11 Nor does law

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lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process [68 S.Ct. 1433] which begins when war is declared but is not exhausted when the shooting stops.12 See United States v. Anderson,

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9 Wall. 56, 70; The Protector, 12 Wall. 700; McElrath v. United States, 102 U.S. 426, 438; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 167. "The state of war" may be terminated by treaty or legislation or Presidential proclamation. Whatever the modes, its

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termination is a political act.13 Ibid. Whether and when it would be open to this Court to find that a war, though merely formally kept alive, had in fact ended is a question too fraught with gravity even to be adequately formulated when not compelled. Only a few months ago, the Court rejected the contention that the state of war in relation to which the President has exercised the authority now challenged was terminated. Woods v. Cloyd W. Miller Co., 333 U.S. 138. Nothing that has happened since calls for a qualification of that view.14 It is still true, as was said in the opinion in that case which eyed [68 S.Ct. 1434] the war power most jealously, "We have armies abroad exercising our war power, and have made no peace terms with our allies, not to mention our enemies." Woods v. Cloyd W. Miller Co., supra, at p. 147 (concurring opinion). The situation today is strikingly similar to that of 1919, where this Court observed:

In view of facts of public knowledge, some of which have been referred to, that the treaty of

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peace has not yet been concluded, that the railways are still under national control by virtue of the war powers, that other war activities have not been brought to a close, and that it cannot even be said that the manpower of the nation has been restored to a peace footing, we are unable to conclude that the act has ceased to be valid.

Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. at 163.

The political branch of the Government has not brought the war with Germany to and end. On the contrary, it has proclaimed that "a state of war still exists." Presidential Proclamation 2714, 12 Fed.Reg. 1; see Woods v. Cloyd W. Miller Co., supra, at p. 140; Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116. The Court...

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