342 U.S. 580 (1952), 43, Harisiades v. Shaughnessy

Docket Nº:No. 43
Citation:342 U.S. 580, 72 S.Ct. 512, 96 L.Ed. 586
Party Name:Harisiades v. Shaughnessy
Case Date:March 10, 1952
Court:United States Supreme Court

Page 580

342 U.S. 580 (1952)

72 S.Ct. 512, 96 L.Ed. 586




No. 43

United States Supreme Court

March 10, 1952

Argued December 5, 1951




1. The Alien Registration Act of 1940, so far as it authorizes the deportation of a legally resident alien because of membership in the Communist Party, even though such membership terminated before enactment of the Act, was within the power of Congress under the Federal Constitution. Pp. 581-596.

(a) The Act does not deprive the alien of liberty without due process of law in violation of the Fifth Amendment. Pp. 584-591.

(1) The power to deport aliens is inherent in every sovereign state. Pp. 587-588.

(2) The policy toward aliens is so exclusively entrusted to the political branches of the Government as to be largely immune from judicial inquiry or interference, and it cannot be said that the power has been so unreasonably or harshly exercised by Congress in this Act as to warrant judicial interference. Pp. 588-590.

(3) The fact that the Act inflicts severe hardship on the individuals affected does not render it violative of the Due Process Clause. Pp. 590-591.

(b) The Act does not abridge the aliens' freedoms of speech and assembly in contravention of the First Amendment. Pp. 591-592.

(c) The Act does not contravene the provision of Art. I, § 9 of the Constitution forbidding ex post facto laws. Pp. 593-596.

2. Procedural requirements of the Administrative Procedure Act are not mandatory as to proceedings which were instituted before the effective date of the Act. P. 583, n. 4.

Page 581

3. One who consented to the same individual acting both as presiding officer and examining officer in administrative proceedings is without standing, on judicial review, to raise the objection that he was thereby denied procedural due process. P. 583, n. 4.

187 F.2d 137 affirmed.

The cases are stated in the opinion of the Court, pp. 581-584. The judgments are affirmed, p. 596.

JACKSON, J., lead opinion

MR. JUSTICE JACKSON delivered the opinion of the Court.

The ultimate question in these three cases is whether the United States constitutionally may deport a legally resident alien because of membership in the Communist Party which terminated before enactment of the Alien Registration Act, 1940.1

Harisiades, a Greek national, accompanied his father to the United States in 1916, when thirteen years of age, and has resided here since. He has taken a wife and sired two children, all citizens. He joined the Communist Party in 1925, when it was known as the Workers Party, and served as an organizer, Branch Executive Committeman,

Page 582

secretary of its Greek Bureau, and editor of its paper "Empros." The party discontinued his membership, along with that of other aliens, in 1939, but he has continued association with members. He was familiar with the principles and philosophy of the Communist Party, and says he still believes in them. He disclaims personal belief in use of force and violence, and asserts that the party favored their use only in defense. A warrant for his deportation because of his membership was issued in 1930, but was not served until 1946. The delay was due to inability to locate him because of his use of a number of aliases. After hearings, he was ordered deported on the grounds that, after entry, he had been a member of an organization which advocates overthrow of the Government by force and violence and distributes printed matter so advocating. He sought release by habeas corpus, which was denied by the District Court.2 The Court of Appeals for the Second Circuit affirmed.3

Mascitti, a citizen of Italy, came to this county in 1920 at the age of sixteen. He married a resident alien and has one American-born child. He was a member of the Young Workers Party, the Workers Party, and the Communist Party between 1923 and 1929. His testimony was that he knew the party advocated a proletarian dictatorship, to be established by force and violence if the capitalist class resisted. He heard some speakers advocate violence, in which he says he did not personally believe, and he was not clear as to the party policy. He resigned in 1929, apparently because he lost sympathy with or interest in the party. A warrant for his deportation issued, and was served in 1946. After the usual administrative hearings, he was ordered deported on the same grounds as Harisiades. He sought relief by declaratory

Page 583

judgment, which was denied without opinion by a three-judge District Court for the District of Columbia. His case comes to this Court by direct appeal.

Mrs. Coleman, a native of Russia, was admitted to the United States in 1914, when thirteen years of age. She married an American citizen, and has three children, citizens by birth. She admits being a member of the Communist Party for about a year, beginning in 1919, and again from 1928 to 1930, and again from 1936 to 1937 or 1938. She held no office, and her activities were not significant. She disavowed much knowledge of party principles and program, claiming she joined each time because of some injustice the party was then fighting. The reasons she gives for leaving the party are her health and the party's discontinuance of alien memberships. She has been ordered deported because, after entry, she became a member of an organization advocating overthrow of the Government by force and violence. She sought an injunction on constitutional grounds, among others. Relief was denied, without opinion, by a three-judge District Court for the District of Columbia, and her case also comes here by direct appeal.

Validity of the hearing procedures [72 S.Ct. 516] is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable.4 Admittedly, each of these deportations is authorized and required by the letter, spirit, and intention of the statute. But the Act

Page 584

is assailed on three grounds: (1) that it deprives the aliens of liberty without due process of law in violation of the Fifth Amendment; (2) that it abridges their freedoms of speech and assembly in contravention of the First Amendment, and (3) that it is an ex post facto law which Congress is forbidden to pass by Art. I, § 9, cl. 3 of the Constitution.

We have in each case a finding, approved by the court below, that the Communist Party, during the period of the alien's membership, taught and advocated overthrow of the Government of the United States by force and violence. Those findings are not questioned here.


These aliens ask us to forbid their expulsion by a departure from the long accepted application to such cases of the Fifth Amendment provision that no person shall be deprived of life, liberty, or property without due process of law. Their basic contention is that admission for permanent residence confers a "vested right" on the alien, equal to that of the citizen, to remain within the country, and that the alien is entitled to constitutional protection in that matter to the same extent as the citizen. Their second line of defense is that, if any power to deport domiciled aliens exists, it is so dispersed that the judiciary must concur in the grounds for its exercise to the extent of finding them reasonable. The argument goes on to the contention that the grounds prescribed by the Act of 1940 bear no reasonable relation to protection of legitimate interests of the United States, and concludes that

Page 585

the Act should be declared invalid. Admittedly these propositions are not founded in precedents of this Court.

For over thirty years, each of these aliens has enjoyed such advantages as accrue from residence here without renouncing his foreign allegiance or formally acknowledging adherence to the Constitution he now invokes. Each was admitted to the United States, upon passing formidable exclusionary hurdles, in the hope that, after what may be called a probationary period, he would desire and be found desirable for citizenship. Each has been offered naturalization, with all of the rights and privileges of citizenship, conditioned only upon open and honest assumption of undivided allegiance to our government.5 But acceptance was and is not compulsory. Each has been permitted to prolong his original nationality indefinitely.

So long as one thus perpetuates a dual status as an American inhabitant but foreign citizen, he may derive advantages from two sources of law -- American and international. He may claim protection against our Government [72 S.Ct. 517] unavailable to the citizen. As an alien, he retains a claim upon the state of his citizenship to diplomatic intervention on his behalf, a patronage often of considerable value. The state of origin of each of these aliens could presently enter diplomatic remonstrance against these deportations if they were inconsistent with international law, the prevailing custom among nations, or their own practices.

The alien retains immunities from burdens which the citizen must shoulder. By withholding his allegiance from the United States, he leaves outstanding a foreign

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call on his loyalties which international law not only permits our Government to recognize, but commands it to respect. In deference to it, certain dispensations from conscription for any military service have been granted foreign nationals.6 They cannot, consistently with our international commitments, be compelled "to take part in the operations of war directed against their own country."7 In addition to such general immunities they may enjoy particular treaty privileges.8

Under our law, the alien in several respects stands on an equal footing with citizens,9 but, in others, has never been conceded legal parity with the citizen.10 Most importantly, to protract this ambiguous status within the country is not his right, but is a matter of...

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