Communist Party of US v. Subversive Act. Con. Bd., No. 11850.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: PRETTYMAN, BAZELON and DANAHER, Circuit
• Citation: 223 F.2d 531
• Parties: COMMUNIST PARTY OF THE UNITED STATES of America, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.
• Docket Number: No. 11850.
• Decision Date: 23 December 1954

223 F.2d 531 (1954)

COMMUNIST PARTY OF THE UNITED STATES of America, Petitioner,
v.
SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent.

No. 11850.

United States Court of Appeals, District of Columbia Circuit.

Argued October 21, 1954.

Decided December 23, 1954.

Petition for Rehearing Denied January 14, 1955.

Writ of Certiorari Granted May 31, 1955.

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Mr. Vito Marcantonio, New York City (who died subsequent to the argument), Mr. John J. Abt, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, and Mr. Joseph Forer, Washington, D. C., for petitioner

Miss Beatrice Rosenberg, Atty., Department of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of Court, Mr. George R. Gallagher, Gen. Counsel, Subversive Activities Control Board, and Mr. David B. Irons, of the bar of the Supreme Court of Texas, pro hac vice, by special leave of Court, with whom Mr. Frank R. Hunter, Jr., Asst. Gen. Counsel, Subversive Activities Control Board, Messrs. Harold D. Koffsky and Carl H. Imlay, Attys., Department of Justice, and Messrs. Leo M. Pellerzi and Ned O. Heinish, Attys., Subversive Activities Control Board, were on the brief, for respondent. Mr. William A. Paisley, Atty., Department of Justice, entered an appearance for respondent.

Before PRETTYMAN, BAZELON and DANAHER, Circuit Judges.

Writ of Certiorari Granted May 31, 1955. See 75 S.Ct. 872.

PRETTYMAN, Circuit Judge.

This is a petition to review an order of the Subversive Activities Control Board, which holds that petitioner is a Communist-action organization within the meaning of the Subversive Activities Control Act of 1950¹ (Section 3)² and as such must register pursuant to

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the provisions of that Act.³ The proceeding before the Board was initiated by a petition filed by the Attorney General. Testimony was received by a panel of the Board, the Attorney General presenting twenty-two witnesses and the Party-respondent three witnesses. Documentary evidence was introduced, briefs, proposed findings, and reply briefs were filed, and oral argument was heard. The panel issued a recommended decision, and exceptions to it were filed. Oral argument was had before the full Board, and the Board issued a report and the order here under review

Petitioner's attack is in three parts, one on the Act itself, one on the order of the Board, and the third on "other reversible errors". In Part One of petitioner's brief the Act is asserted to be invalid upon four grounds. These are: The Act is an outlawry statute, designed to outlaw the Communist Party by legislative fiat; the Act violates the due process clause and is also a bill of attainder; the Act violates the constitutional prohibition against compulsory self-incrimination; and the Act violates the First Amendment. In Part Two of the brief the order of the Board is said to be invalid upon three grounds. The first ground is that the Board so applied the provisions of Section 13(e)⁴ of the Act as to magnify their irrationality. The second ground is that the Board violated the First Amendment. The third ground is that the Board members were subjected to extra-legal pressures and were biased. Part Three of the brief presents six additional assertedly reversible errors. They are: (1) The order is based upon conduct prior to the Act; (2) the Board's findings as to petitioner's pre-Act conduct are based upon incompetent and discredited evidence; (3) the findings with reference to the world Communist movement are not supported by evidence; (4) the findings with reference to the facts are not supported by a preponderance of the evidence; (5) the order must be set aside if it is invalid upon any ground; and (6) the appointments to the Board were made in violation of the Constitution.

We shall not follow petitioner's arrangement of its contentions, but in the course of our consideration we will deal with them all. Because this is a case of first impression, involving a new statute of importance, and because the points of both law and fact are many and vigorously pressed, our discussion will be at some length.

We look first at the statute. It opens with findings of the existence and the nature of "a world Communist movement" in a long recitation of fifteen paragraphs dealing with the nature of the movement abroad and in the United States. The Act defines a Communist-action organization. It declares certain actions to be unlawful. These actions are three in number: (1) for any person to agree with another person to contribute to the establishment in this country of a totalitarian dictatorship controlled by a foreign organization (except by constitutional amendment); (2) for an officer or employee of the United States to communicate to any agent of a foreign government or of any Communist organization any information classified as affecting the security of this country; and (3) for any foreign or Communist agent to receive such information. The next two sections of the Act contain certain prohibitions directed to members of organizations registered under the Act. Then the Act requires the registration of Communist-action and Communist-front organizations, annual reports from such organizations, and registration of members of Communist-action organizations. It provides that the Attorney General keep public registers of Communist organizations. The Act prohibits certain privileges to registered organizations. It establishes the Board and provides for proceedings before

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it. It delineates a series of considerations which must be made by the Board. It provides for judicial review. Penalties for violation of the Act are provided. A series of amendments to other statutes, such as the Nationality Act of 1940 and the Alien Registration Act of 1940, are made. The last section of the Act is a separability provision

I

We reject the Government's contention that we must consider the statute as a registration measure only. The argument is that: The several statutory provisions are separable; the Board's power is to require registration and no more; its order does no more than that; therefore the statute and the order must be treated by us as involving registration and no more. It is true that the provisions of this statute are separable. The Act contains a separability section⁵ reading:

"Sec. 32. If any provision of this title, or the application thereof to any person or circumstances, is held invalid, the remaining provisions of this title, or the application of such provision to other persons or circumstances, shall not be affected thereby."

And so, if one provision of this Act is invalid, its fall would not necessarily drag down the remainder of the Act; all other provisions would remain unaffected. But that is not the point of the Government's contention. The Government contends that each provision,⁶ even if all are valid, must be treated separately from the others, as though each were an independent enactment unrelated to the others. The question whether one section of a statute can stand when other sections are invalid, and the question whether one valid section of a statute can be treated separately and independently of all other valid sections, are two different questions. The former would raise a separability question. The latter is governed by the elementary rule that a statute must be considered as a whole, in its entirety, all parts together.⁷ The Government's argument is, in effect, that this statute is not an integrated unit but is a collection of separate measures. But we think this is not that sort of statute. The mandatory provisions, called "sanctions" in this litigation, in Sections 5, 6, 10 and 11,⁸ are attached directly to registration. For example, if an organization is registered, or ordered to register, its mail must be marked and its broadcasts identified. We cannot strip the registration of its attachments. We cannot consider the registration requirement as though it were bare, when it is not bare either in the statute or in factual consequences.

The Government relies upon Electric Bond & Share Co. v. Securities and Exchange Commission.⁹ That case involved the validity of those sections of the Utility Holding Company Act, 15 U.S.C.A. § 79 et seq., which required registration. It was urged that those sections and various other control provisions were an integrated whole and had to be considered together, as though interdependent one upon the other. The Supreme Court held that both the structure of the Act and the intent of Congress were clear that each provision had a purpose and effect of its own, that the provisions constituted groups of regulations, and that as a practical matter they could be sustained and enforced

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separately. It held that the statute was not an integrated unit. We think the statute now before us is an integrated unit, although invalid sections may be excised. We must treat the registration requirement as though it involves the sanctions in Sections 5, 6, 10 and 11.¹⁰

We later point out that Section 8, providing for registration by individual members of an organization, is not attached to organization registration but on the contrary applies when the organization does not register. We think it a separate measure from organization registration.

In the disposition of the problems presented to us we will follow the course indicated by the foregoing. We will consider the so-called "sanction" and other provisions which depend upon or flow from registration of the organization. In so far as such sections are valid we will treat them as integrated with the registration requirement and thus involved in...