Social Security History

Supreme Court Case: Flemming vs. Nestor

Flemming V. Nestor

Case Name: FLEMMING V. NESTOR 363 U.S. 603

NO. 54. ARGUED FEBRUARY 24, 1960. - DECIDED JUNE 20, 1960. - 169 F. SUPP. 922, REVERSED.

THE TERMINATION OF OLD-AGE BENEFITS PAYABLE TO AN ALIEN WHO, AFTER THE DATE OF ITS ENACTMENT (SEPTEMBER 1, 1954), IS DEPORTED UNDER SEC. 241(A) OF THE IMMIGRATION AND NATIONALITY ACT ON ANY ONE OF CERTAIN GROUNDS SPECIFIED IN SEC. 202(N). APPELLEE, AN ALIEN WHO HAD BECOME ELIGIBLE FOR OLD-AGE BENEFITS IN 1955, WAS DEPORTED IN 1956, PURSUANT TO SEC. 241(A) OF THE IMMIGRATION AND NATIONALITY ACT, FOR HAVING BEEN A MEMBER OF THE COMMUNIST PARTY FROM 1933 TO 1939. SINCE THIS WAS ONE OF THE GROUNDS SPECIFIED IN SEC. 202(N), HIS OLD-AGE BENEFITS WERE TERMINATED SHORTLY THEREAFTER. HE COMMENCED THIS ACTION IN A SINGLE JUDGE DISTRICT COURT, UNDER SEC. 205(G) OF THE SOCIAL SECURITY ACT, TO SECURE JUDICIAL REVIEW OF THAT ADMINISTRATIVE DECISION. THE DISTRICT COURT HELD THAT SEC. 202(N) DEPRIVED APPELLEE OF AN ACCRUED PROPERTY RIGHT AND, THEREFORE, VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. HELD:

1. ALTHOUGH THIS ACTION DREW INTO QUESTION THE CONSTITUTIONALITY OF SEC. 202(N), IT DID NOT INVOLVE AN INJUNCTION OR OTHERWISE INTERDICT THE OPERATION OF THE STATUTORY SCHEME; 28 U.S.C. SEC. 2282, FORBIDDING THE ISSUANCE OF AN INJUNCTION RESTRAINING THE ENFORCEMENT, OPERATION OR EXECUTION OF AN ACT OF CONGRESS FOR REPUGNANCE TO THE CONSTITUTION, EXCEPT BY A THREE-JUDGE DISTRICT COURT, WAS NOT APPLICABLE; AND JURISDICTION OVER THE ACTION WAS PROPERLY EXERCISED BY THE SINGLE-JUDGE DISTRICT COURT. PP. 606-608.

2. A PERSON COVERED BY THE SOCIAL SECURITY ACT HAS NOT SUCH A RIGHT IN OLD-AGE BENEFIT PAYMENTS AS WOULD MAKE EVERY DEFEASANCE OF "ACCRUED" INTERESTS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. PP. 608-611.

(A) THE NONCONTRACTUAL INTEREST OF AN EMPLOYEE COVERED BY THE ACT CANNOT BE SOUNDLY ANALOGIZED TO THAT OF THE HOLDER OF AN ANNUITY, WHOSE RIGHTS TO BENEFITS ARE BASED ON HIS CONTRACTUAL PREMIUM PAYMENTS. PP. 608-610.

(B) TO ENGRAFT UPON THE SOCIAL SECURITY SYSTEM A CONCEPT OF "ACCRUED PROPERTY RIGHTS" WOULD DEPRIVE IT OF THE FLEXIBILITY AND BOLDNESS IN ADJUSTMENT TO EVER-CHANGING CONDITIONS WHICH IT DEMANDS AND WHICH CONGRESS PROBABLY HAD IN MIND WHEN IT EXPRESSLY RESERVED THE RIGHT TO ALTER, AMEND OR REPEAL ANY PROVISION OF THE ACT. PP. 610-611.

3. SECTION 202(N) OF THE ACT CANNOT BE CONDEMNED AS SO LACKING IN RATIONAL JUSTIFICATION AS TO OFFEND DUE PROCESS. PP. 611-612.

4. TERMINATION OF APPELLEE'S BENEFITS UNDER SEC. 202(N) DOES NOT AMOUNT TO PUNISHING HIM WITHOUT A TRIAL, IN VIOLATION OF ART. III, SEC. 2, CL. 3, OF THE CONSTITUTION OR THE SIXTH AMENDMENT; NOR IS SEC. 202(N) A BILL OF ATTAINDER OR EX POST FACTO LAW, SINCE ITS PURPOSE IS NOT PUNITIVE. PP. 612-621.

FLEMMING, SECRETARY OF HEALTH, EDUCATION, AND WELFARE, V. NESTOR. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA.

 MR. JUSTICE HARLAN DELIVERED THE OPINON OF THE COURT. 

FROM A DECISION OF THE DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
HOLDING SEC. 202(N) OF THE SOCIAL SECURITY ACT (68 STAT. 1083, AS
AMENDED, 42 U.S.C. SEC. 402(N)) UNCONSTITUTIONAL, THE SECRETARY OF
HEALTH, EDUCATION, AND WELFARE TAKES THIS DIRECT APPEAL PURSUANT TO 28
U.S.C.  SEC. 1252.  THE CHALLENGED SECTION, SET FORTH IN FULL IN THE
MARGIN, (FN1) PROVIDES FOR THE TERMINATION OF OLD-AGE, SURVIVOR, AND
DISABILITY INSURANCE BENEFITS PAYABLE TO, OR IN CERTAIN CASES IN
RESPECT OF, AN ALIEN INDIVIDUAL WHO, AFTER SEPTEMBER 1, 1954 (THE DATE
OF ENACTMENT OF THE SECTION), IS DEPORTED UNDER SEC. 241(A) OF THE
IMMIGRATION AND NATIONALITY ACT (8 U.S.C.  SEC. 1251A)) ON ANY ONE OF
CERTAIN GROUNDS SPECIFIED IN SEC. 202(N). 

APPELLEE, AN ALIEN, IMMIGRATED TO THIS COUNTRY FROM BULGARIA IN 1913,
AND BECAME ELIGIBLE FOR OLD-AGE BENEFITS IN NOVEMBER 1955.  IN JULY
1956 HE WAS DEPORTED PURSUANT TO SEC.  241(A)(6)(C)(I) OF THE
IMMIGRATION AND NATIONALITY ACT FOR HAVING BEEN A MEMBER OF THE
COMMUNIST PARTY FROM 1933 TO 1939.  THIS BEING ONE OF THE BENEFIT
TERMINATION DEPORTATION GROUNDS SPECIFIED IN SEC. 202(N), APPELLEE'S
BENEFITS WERE TERMINATED SOON THEREAFTER, AND NOTICE OF THE TERMINATION
WAS GIVEN TO HIS WIFE, WHO HAD REMAINED IN THIS COUNTRY.  (FN2)  UPON
HIS FAILURE TO OBTAIN ADMINISTRATIVE REVERSAL OF THE DECISION, APPELLEE
COMMENCED THIS ACTION IN THE DISTRICT COURT, PURSUANT TO SEC. 205(G) OF
THE SOCIAL SECURITY ACT (53 STAT. 1370, AS AMENDED, 42 U.S.C. SEC.
405(G)), TO SECURE JUDICIAL REVIEW.  (FN3)  ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT, THE DISTRICT COURT RULED FOR APPELLEE, HOLDING SEC.
202(N) UNCONSTITUTIONAL UNDER THE DUE PROCESS CLAUSE OF THE FIFTH
AMENDMENT IN THAT IT DEPRIVED APPELLEE OF AN ACCRUED PROPERTY RIGHT. 
169 F. SUPP. 922.  THE SECRETARY PROSECUTED AN APPEAL TO THIS COURT,
AND, SUBJECT TO A JURISDICTIONAL QUESTION HEREINAFTER DISCUSSED, WE SET
THE CASE DOWN FOR PLENARY HEARING.  360 U.S. 915. 

THE PRELIMINARY JURISDICTIONAL QUESTION IS WHETHER 28 U.S.C. SEC.
2282 IS APPLICABLE, AND THEREFORE REQUIRED THAT THE CASE BE HEARD BELOW
BEFORE THREE JUDGES, RATHER THAN BY A SINGLE JUDGE, AS IT WAS.  SECTION
2282 FORBIDS THE ISSUANCE, EXCEPT BY A THREE-JUDGE DISTRICT COURT, OF
ANY "INTERLOCUTORY OR PERMANENT INJUNCTION RESTRAINING THE ENFORCEMENT,
OPERATION OR EXECUTION OF ANY ACT OF CONGRESS FOR REPUGNANCE TO THE
CONSTITUTION  ...  ."  NEITHER PARTY REQUESTED A THREE-JUDGE COURT
BELOW, AND IN THIS COURT BOTH PARTIES ARGUE THE INAPPLICABILITY OF SEC.
2282.  IF THE PROVISION APPLIES, WE CANNOT REACH THE MERITS, BUT MUST
VACATE THE JUDGMENT BELOW AND REMAND THE CASE FOR CONSIDERATION BY A
THREE-JUDGE DISTRICT COURT.  SEE FEDERAL HOUSING ADMINISTRATION V. THE
DARLINGTON, INC., 352 U.S. 977. 

UNDER THE DECISIONS OF THIS COURT, THIS SEC. 205(G) ACTION COULD, AND
DID, DRAW IN QUESTION THE CONSTITUTIONALITY OF SEC. 202(N).  SEE, E.G.,
ANNISTON MFG. CO. V. DAVIS, 301 U.S. 337, 345-346.  HOWEVER, THE ACTION
DID NO MORE.  IT DID NOT SEEK AFFIRMATIVELY TO INTERDICT THE OPERATION
OF A STATUTORY SCHEME.  A JUDGMENT FOR THE APPELLEE WOULD NOT PUT THE
OPERATION OF A FEDERAL STATUTE UNDER THE RESTRAINT OF AN EQUITY DECREE;
INDEED, APART FROM ITS EFFECT UNDER THE DOCTRINE OF STARE DECISIS, IT
WOULD HAVE NO OTHER RESULT THAN TO REQUIRE THE PAYMENT OF APPELLEE'S
BENEFITS.  IN THESE CIRCUMSTANCES WE THINK THAT WHAT WAS SAID IN
GARMENT WORKERS V. DONNELLY CO., 304 U.S. 243, WHERE THIS COURT DEALT
WITH AN ANALOGOUS SITUATION, IS CONTROLLING HERE: 

"THE PREDECESSOR OF SEC. 2282 DOES NOT PROVIDE FOR A CASE WHERE THE
VALIDITY OF AN ACT OF CONGRESS IS MERELY DRAWN IN QUESTION, ALBEIT THAT
QUESTION BE DECIDED, BUT ONLY FOR A CASE WHERE THERE IS AN APPLICATION
FOR AN INTERLOCUTORY OR PERMANENT INJUNCTION TO RESTRAIN THE
ENFORCEMENT OF AN ACT OF CONGRESS  ...  .  HAD CONGRESS INTENDED THE
PROVISION  ...  , FOR THREE JUDGES AND DIRECT APPEAL, TO APPLY WHENEVER
A QUESTION OF THE VALIDITY OF AN ACT OF CONGRESS BECAME INVOLVED,
CONGRESS WOULD NATURALLY HAVE USED THE FAMILIAR PHRASE 'DRAWN IN
QUESTION'  ...  ."  ID., AT 250. 

WE HOLD THAT JURISDICTION OVER THE ACTION WAS PROPERLY EXERCISED BY
THE DISTRICT COURT, AND THEREFORE REACH THE MERITS. 
          

I. 

WE THINK THAT THE DISTRICT COURT ERRED IN HOLDING THAT SEC. 202(N)
DEPRIVED APPELLEE OF AN "ACCRUED PROPERTY RIGHT."  169 F. SUPP., AT
934.  APPELLEE'S RIGHT TO SOCIAL SECURITY BENEFITS CANNOT PROPERLY BE
CONSIDERED TO HAVE BEEN OF THAT ORDER. 

THE GENERAL PURPOSES UNDERLYING THE SOCIAL SECURITY ACT WERE
EXPOUNDED BY MR. JUSTICE CARDOZO IN HELVERING V. DAVIS, 301 U.S. 619,
640-645.  THE ISSUE HERE, HOWEVER, REQUIRES SOME INQUIRY INTO THE
STATUTORY SCHEME BY WHICH THOSE PURPOSES ARE SOUGHT TO BE ACHIEVED. 
PAYMENTS UNDER THE ACT ARE BASED UPON THE WAGE EARNER'S RECORD OF
EARNINGS IN EMPLOYMENT OR SELF-EMPLOYMENT COVERED BY THE ACT, AND TAKE
THE FORM OF OLD-AGE INSURANCE AND DISABILITY INSURANCE BENEFITS INURING
TO THE WAGE EARNER (KNOWN AS THE "PRIMARY BENEFICIARY"), AND OF
BENEFITS, INCLUDING SURVIVOR BENEFITS, PAYABLE TO NAMED DEPENDENTS
("SECONDARY BENEFICIARIES") OF A WAGE EARNER.  BROADLY SPEAKING,
ELIGIBILITY FOR BENEFITS DEPENDS ON SATISFYING STATUTORY CONDITIONS AS
TO (1) EMPLOYMENT IN COVERED EMPLOYMENT OR SELF-EMPLOYMENT (SEE SEC.
210(A), 42 U.S.C. SEC. 410(A)); (2) THE REQUISITE NUMBER OF "QUARTERS
OF COVERAGE" - I.E., THREE-MONTH PERIODS DURING WHICH NOT LESS THAN A
STATED SUM WAS EARNED - THE NUMBER DEPENDING GENERALLY ON AGE (SEE
SECS. 213-215, 42 U.S.C. SECS. 413-415); AND (3) ATTAINMENT OF THE
RETIREMENT AGE (SEE SEC. 216(A), 42 U.S.C.  SEC. 416(A)).  SEC. 202(A),
42 U.S.C. SEC. 402(A).  (FN4)  ENTITLEMENT TO BENEFITS ONCE GAINED IS
PARTIALLY OR TOTALLY LOST IF THE BENEFICIARY EARNS MORE THAN A STATED
ANNUAL SUM, UNLESS HE OR SHE IS AT LEAST 72 YEARS OLD.  SEC. 203(B),
(E), 42 U.S.C. SEC. 403(B), (E).  OF SPECIAL IMPORTANCE IN THIS CASE IS
THE FACT THAT ELIGIBILITY FOR BENEFITS, AND THE AMOUNT OF SUCH
BENEFITS, DO NOT IN ANY TRUE SENSE DEPEND ON CONTRIBUTION TO THE
PROGRAM THROUGH THE PAYMENT OF TAXES, BUT RATHER ON THE EARNINGS RECORD
OF THE PRIMARY BENEFICIARY. 

THE PROGRAM IS FINANCED THROUGH A PAYROLL TAX LEVIED ON EMPLOYEES IN
COVERED EMPLOYMENT, AND ON THEIR EMPLOYERS.  THE TAX RATE, WHICH IS A
FIXED PERCENTAGE OF THE FIRST $4,800 OF EMPLOYEE ANNUAL INCOME, IS SET
AT A SCALE WHICH WILL INCREASE FROM YEAR TO YEAR, PRESUMABLY TO KEEP
PACE WITH RISING BENEFIT COSTS.  I.R.C. OF 1954, SECS. 3101, 3111,
3121(A).  THE TAX PROCEEDS ARE PAID INTO THE TREASURY "AS INTERNAL
REVENUE COLLECTIONS," I.R.C., SEC. 3501, AND EACH YEAR AN AMOUNT EQUAL
TO THE PROCEEDS IS APPROPRIATED TO A TRUST FUND, FROM WHICH BENEFITS
AND THE EXPENSES OF THE PROGRAM ARE PAID.  SEC. 201, 42 U.S.C. SEC.
401.  IT WAS EVIDENTLY CONTEMPLATED THAT RECEIPTS WOULD GREATLY EXCEED
DISBURSEMENTS IN THE EARLY YEARS OF OPERATION OF THE SYSTEM, AND
SURPLUS FUNDS ARE INVESTED IN GOVERNMENT OBLIGATIONS, AND THE INCOME
RETURNED TO THE TRUST FUND.  THUS, PROVISION IS MADE FOR EXPECTED
INCREASING COSTS OF THE PROGRAM. 

THE SOCIAL SECURITY SYSTEM MAY BE ACCURATELY DESCRIBED AS A FORM OF
SOCIAL INSURANCE, ENACTED PURSUANT TO CONGRESS' POWER TO "SPEND MONEY
IN AID OF THE 'GENERAL WELFARE,'" HELVERING V. DAVIS, SUPRA, AT 640,
WHEREBY PERSONS GAINFULLY EMPLOYED, AND THOSE WHO EMPLOY THEM, ARE
TAXED TO PERMIT THE PAYMENT OF BENEFITS TO THE RETIRED AND DISABLED,
AND THEIR DEPENDENTS.  PLAINLY THE EXPECTATION IS THAT MANY MEMBERS OF
THE PRESENT PRODUCTIVE WORK FORCE WILL IN TURN BECOME BENEFICIARIES
RATHER THAN SUPPORTERS OF THE PROGRAM.  BUT EACH WORKER'S BENEFITS,
THOUGH FLOWING FROM THE CONTRIBUTIONS HE MADE TO THE NATIONAL ECONOMY
WHILE ACTIVELY EMPLOYED, ARE NOT DEPENDENT ON THE DEGREE TO WHICH HE
WAS CALLED UPON TO SUPPORT THE SYSTEM BY TAXATION.  IT IS APPARENT THAT
THE NONCONTRACTUAL INTEREST OF AN EMPLOYEE COVERED BY THE ACT CANNOT BE
SOUNDLY ANALOGIZED TO THAT OF THE HOLDER OF AN ANNUITY, WHOSE RIGHT TO
BENEFITS IS BOTTOMED ON HIS CONTRACTUAL PREMIUM PAYMENTS. 

IT IS HARDLY PROFITABLE TO ENGAGE IN CONCEPTUALIZATIONS REGARDING
"EARNED RIGHTS" AND GRATUITIES."   CF. LYNCH V. UNITED STATES, 292 U.S.
571, 576-577.  THE "RIGHT" TO SOCIAL SECURITY BENEFITS IS IN ONE SENSE
"EARNED," FOR THE ENTIRE SCHEME RESTS ON THE LEGISLATIVE JUDGMENT THAT
THOSE WHO IN THEIR PRODUCTIVE YEARS WERE FUNCTIONING MEMBERS OF THE
ECONOMY MAY JUSTLY CALL UPON THAT ECONOMY, IN THEIR LATER YEARS, FOR
PROTECTION FROM "THE RIGORS OF THE POOR HOUSE AS WELL AS FROM THE
HAUNTING FEAR THAT SUCH A LOT AWAITS THEM WHEN JOURNEY'S END IS NEAR." 
HELVERING V. DAVIS, SUPRA, AT 641.  BUT THE PRACTICAL EFFECTUATION OF
THAT JUDGMENT HAS OF NECESSITY CALLED FORTH A HIGHLY COMPLEX AND
INTERRELATED STATUTORY STRUCTURE.  INTEGRATED TREATMENT OF THE MANIFOLD
SPECIFIC PROBLEMS PRESENTED BY THE SOCIAL SECURITY PROGRAM DEMANDS MORE
THAN A GENERALIZATION.  THAT PROGRAM WAS DESIGNED TO FUNCTION INTO THE
INDEFINITE FUTURE, AND ITS SPECIFIC PROVISIONS REST ON PREDICTIONS AS
TO EXPECTED ECONOMIC CONDITIONS WHICH MUST INEVITABLY PROVE LESS THAN
WHOLLY ACCURATE, AND ON JUDGMENTS AND PREFERENCES AS TO THE PROPER
ALLOCATION OF THE NATION'S RESOURCES WHICH EVOLVING ECONOMIC AND SOCIAL
CONDITIONS WILL OF NECESSITY IN SOME DEGREE MODIFY. 

TO ENGRAFT UPON THE SOCIAL SECURITY SYSTEM A CONCEPT OF "ACCRUED
PROPERTY RIGHTS" WOULD DEPRIVE IT OF THE FLEXIBILITY AND BOLDNESS IN
ADJUSTMENT TO EVER-CHANGING CONDITIONS WHICH IT DEMANDS.  SEE
WOLLENBERG, VESTED RIGHTS IN SOCIAL-SECURITY BENEFITS, 37 ORE.  L. REV.
299, 359.  IT WAS DOUBTLESS OUT OF AN AWARENESS OF THE NEED FOR SUCH
FLEXIBILITY THAT CONGRESS INCLUDED IN THE ORIGINAL ACT, AND HAS SINCE
RETAINED, A CLAUSE EXPRESSLY RESERVING TO IT "THE RIGHT TO ALTER,
AMEND, OR REPEAL ANY PROVISION" OF THE ACT.  SEC. 1104, 49 STAT. 648,
42 U.S.C. SEC. 1304.  THAT PROVISION MAKES EXPRESS WHAT IS IMPLICIT IN
THE INSTITUTIONAL NEEDS OF THE PROGRAM.  SEE ANALYSIS OF THE SOCIAL
SECURITY SYSTEM, HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON
WAYS AND MEANS, HOUSE OF REPRESENTATIVES, 83D CONG., 1ST SESS., PP. 920
921.  IT WAS PURSUANT TO THAT PROVISION THAT SEC. 202(N) WAS ENACTED. 

WE MUST CONCLUDE THAT A PERSON COVERED BY THE ACT HAS NOT SUCH A
RIGHT IN BENEFIT PAYMENTS AS WOULD MAKE EVERY DEFEASANCE OF "ACCRUED"
INTERESTS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT. 

                             II. 

THIS IS NOT TO SAY, HOWEVER, THAT CONGRESS MAY EXERCISE ITS POWER TO
MODIFY THE STATUTORY SCHEME FREE OF ALL CONSTITUTIONAL RESTRAINT.  THE
INTEREST OF A COVERED EMPLOYEE UNDER THE ACT IS OF SUFFICIENT SUBSTANCE
TO FALL WITHIN THE PROTECTION FROM ARBITRARY GOVERNMENTAL ACTION
AFFORDED BY THE DUE PROCESS CLAUSE.  IN JUDGING THE PERMISSIBILITY OF
THE CUT-OFF PROVISIONS OF SEC. 202(N) FROM THIS STANDPOINT, IT IS NOT
WITHIN OUR AUTHORITY TO DETERMINE WHETHER THE CONGRESSIONAL JUDGMENT
EXPRESSED IN THAT SECTION IS SOUND OR EQUITABLE, OR WHETHER IT COMPORTS
WELL OR ILL WITH THE PURPOSES OF THE ACT.  "WHETHER WISDOM OR UNWISDOM
RESIDES IN THE SCHEME OF BENEFITS SET FORTH IN TITLE II, IT IS NOT FOR
US TO SAY.  THE ANSWER TO SUCH INQUIRIES MUST COME FROM CONGRESS, NOT
THE COURTS.  OUR CONCERN HERE, AS OFTEN, IS WITH POWER, NOT WITH
WISDOM."  HELVERING V. DAVIS, SUPRA, AT 644.  PARTICULARLY WHEN WE DEAL
WITH A WITHHOLDING OF A NONCONTRACTUAL BENEFIT UNDER A SOCIAL WELFARE
PROGRAM SUCH AS THIS, WE MUST RECOGNIZE THAT THE DUE PROCESS CLAUSE CAN
BE THOUGHT TO INTERPOSE A BAR ONLY IF THE STATUTE MANIFESTS A PATENTLY
ARBITRARY CLASSIFICATION, UTTERLY LACKING IN RATIONAL JUSTIFICATION. 

SUCH IS NOT THE CASE HERE.  THE FACT OF A BENEFICIARY'S RESIDENCE
ABROAD - IN THE CASE OF A DEPORTEE, A PRESUMABLY PERMANENT RESIDENCE -
CAN BE OF OBVIOUS RELEVANCE TO THE QUESTION OF ELIGIBILITY.  ONE
BENEFIT WHICH MAY BE THOUGHT TO ACCRUE TO THE ECONOMY FROM THE SOCIAL
SECURITY SYSTEM IS THE INCREASED OVER-ALL NATIONAL PURCHASING POWER
RESULTING FROM TAXATION OF PRODUCTIVE ELEMENTS OF THE ECONOMY TO
PROVIDE PAYMENTS TO THE RETIRED AND DISABLED, WHO MIGHT OTHERWISE BE
DESTITUTE OR NEARLY SO, AND WHO WOULD GENERALLY SPEND A COMPARATIVELY
LARGE PERCENTAGE OF THEIR BENEFIT PAYMENTS.  THIS ADVANTAGE WOULD BE
LOST AS TO PAYMENTS MADE TO ONE RESIDING ABROAD.  FOR THESE PURPOSES,
IT IS, OF COURSE, CONSTITUTIONALLY IRRELEVANT WHETHER THIS REASONING IN
FACT UNDERLAY THE LEGISLATIVE DECISION, AS IT IS IRRELEVANT THAT THE
IN LOGIC APPLY.  (FN5)  SEE UNITED STATES V. PETRILLO, 332 U.S. 1, 8-9;
STEWARD MACHINE CO. V. DAVIS, 301 U.S. 548, 584-585; CF. CARMICHAEL V.
SOUTHERN COAL CO., 301 U.S. 495, 510-513.  NOR, APART FROM THIS, CAN IT
BE DEEMED IRRATIONAL FOR CONGRESS TO HAVE CONCLUDED THAT THE PUBLIC
PURSE SHOULD NOT BE UTILIZED TO CONTRIBUTE TO THE SUPPORT OF THOSE
DEPORTED ON THE GROUNDS SPECIFIED IN THE STATUTE.    WE NEED GO NO
FURTHER TO FIND SUPPORT FOR OUR CONCLUSION THAT THIS PROVISION OF THE
ACT CANNOT BE CONDEMNED AS SO LACKING IN RATIONAL JUSTIFICATION AS TO
OFFEND DUE PROCESS. 

                                  III. 

THE REMAINING, AND MOST INSISTENTLY PRESSED, CONSTITUTIONAL
OBJECTIONS REST UPON ART. I, SEC. 9, CL. 3, AND ART. III, SEC. 2, CL.
3, OF THE CONSTITUTION, AND THE SIXTH AMENDMENT.  (FN6)  IT IS SAID
THAT THE TERMINATION OF APPELLEE'S BENEFITS AMOUNTS TO PUNISHING HIM
WITHOUT A JUDICIAL TRIAL, SEE WONG WING V. UNITED STATES, 163 U.S. 228;
THAT THE TERMINATION OF BENEFITS CONSTITUTES THE IMPOSITION OF
PUNISHMENT BY LEGISLATIVE ACT, RENDERING SEC. 202(N) A BILL OF
ATTAINDER" SEE UNITED STATES V. LOVETT, 328 U.S. 303; CUMMINGS V.
MISSOURI, 4 WALL.  277; AND THAT THE PUNISHMENT EXACTED IS IMPOSED FOR
PAST CONDUCT NOT UNLAWFUL WHEN ENGAGED IN, THEREBY VIOLATING THE
CONSTITUTIONAL PROHIBITION ON EX POST FACTO LAWS, SEE EX PARTE GARLAND,
4 WALL.  333.  (FN7)  ESSENTIAL TO THE SUCCESS OF EACH OF THESE
CONTENTIONS IS THE VALIDITY OF CHARACTERIZING AS "PUNISHMENT" IN THE
CONSTITUTIONAL SENSE THE TERMINATION OF BENEFITS UNDER SEC. 202(N). 

IN DETERMINING WHETHER LEGISLATION WHICH BASES A DISQUALIFICATION ON
THE HAPPENING OF A CERTAIN PAST EVENT IMPOSES A PUNISHMENT, THE COURT
HAS SOUGHT TO DISCERN THE OBJECTS ON WHICH THE ENACTMENT IN QUESTION
WAS FOCUSED.  WHERE THE SOURCE OF LEGISLATIVE CONCERN CAN BE THOUGHT TO
BE THE ACTIVITY OR STATUS FROM WHICH THE INDIVIDUAL IS BARRED, THE
DISQUALIFICATION IS NOT PUNISHMENT EVEN THOUGH IT MAY BEAR HARSHLY UPON
ONE AFFECTED.  THE CONTRARY IS THE CASE WHERE THE STATUTE IN QUESTION
IS EVIDENTLY AIMED AT THE PERSON OR CLASS OF PERSONS DISQUALIFIED.  IN
THE EARLIEST CASE ON WHICH APPELLEE RELIES, A CLERGYMAN SUCCESSFULLY
CHALLENGED A STATE CONSTITUTIONAL PROVISION BARRING FROM THAT
PROFESSION - AND FROM MANY OTHER PROFESSIONS AND OFFICES - ALL WHO
WOULD NOT SWEAR THAT THEY HAD NEVER MANIFESTED ANY SYMPATHY OR SUPPORT
FOR THE CAUSE OF THE CONFEDERACY.  CUMMINGS V. MISSOURI, SUPRA.  THE
COURT THUS DESCRIBED THE AIMS OF THE CHALLENGED ENACTMENT: 

"THE OATH COULD NOT  ...  HAVE BEEN REQUIRED AS A MEANS OF
ASCERTAINING WHETHER PARTIES WERE QUALIFIED OR NOT FOR THEIR RESPECTIVE
CALLINGS OR THE TRUSTS WITH WHICH THEY WERE CHARGED.  IT WAS REQUIRED
IN ORDER TO REACH THE PERSON, NOT THE CALLING.  IT WAS EXACTED, NOT
FROM ANY NOTION THAT THE SEVERAL ACTS DESIGNATED INDICATED UNFITNESS
FOR THE CALLINGS, BUT BECAUSE IT WAS THOUGHT THAT THE SEVERAL ACTS
DESERVED PUNISHMENT  ...  ."  ID., AT 320. 

ONLY THE OTHER DAY THE GOVERNING INQUIRY WAS STATED, IN AN OPINION
JOINED BY FOUR MEMBERS OF THE COURT, IN THESE TERMS: 

"THE QUESTION IN EACH CASE WHERE UNPLEASANT CONSEQUENCES ARE BROUGHT
TO BEAR UPON AN INDIVIDUAL FOR PRIOR CONDUCT, IS WHETHER THE
LEGISLATIVE AIM WAS TO PUNISH THAT INDIVIDUAL FOR PAST ACTIVITY, OR
WHETHER THE RESTRICTION OF THE INDIVIDUAL COMES ABOUT AS A RELEVANT
INCIDENT TO A REGULATION OF A PRESENT SITUATION, SUCH AS THE PROPER
QUALIFICATIONS FOR A PROFESSION."  DE VEAU V. BRAISTED, 363 U.S. 144,
160 (PLURALITY OPINION). 

IN EX PARTE GARLAND, SUPRA, WHERE THE COURT STRUCK DOWN AN OATH -
SIMILAR IN CONTENT TO THAT INVOLVED IN CUMMINGS - REQUIRED OF ATTORNEYS
SEEKING TO PRACTICE BEFORE ANY FEDERAL COURT, AS ALSO IN CUMMINGS, THE
FINDING OF PUNITIVE INTENT DREW HEAVILY ON THE COURT'S FIRST-HAND
ACQUAINTANCE WITH THE EVENTS AND THE MOOD OF THE THEN RECENT CIVIL WAR,
AND "THE FIERCE PASSIONS WHICH THAT STRUGGLE AROUSED."  CUMMINGS V.
MISSOURI, SUPRA, AT 322.  (FN8)  SIMILARLY, IN UNITED STATES V. LOVETT,
SUPRA, WHERE THE COURT INVALIDATED, AS A BILL OF ATTAINDER, A STATUTE
FORBIDDING - SUBJECT TO CERTAIN CONDITIONS - THE FURTHER PAYMENT OF THE
SALARIES OF THREE NAMED GOVERNMENT EMPLOYEES, THE DETERMINATION THAT A
PUNISHMENT HAD BEEN IMPOSED RESTED IN LARGE MEASURE ON THE SPECIFIC
CONGRESSIONAL HISTORY WHICH THE COURT WAS AT PAINS TO SPELL OUT IN
DETAIL.  SEE 328 U.S., AT 308-312.  MOST RECENTLY, IN TROP V. DULLES,
356 U.S. 86, WHICH HELD UNCONSTITUTIONAL A STATUTE PROVIDING FOR THE
EXPATRIATION OF ONE WHO HAD BEEN SENTENCED BY A COURT-MARTIAL TO
DISMISSAL OR DISHONORABLE DISCHARGE FOR WARTIME DESERTION, THE MAJORITY
OF THE COURT CHARACTERIZED THE STATUTE AS PUNITIVE.  HOWEVER, NO SINGLE
OPINION COMMANDED THE SUPPORT OF A MAJORITY.  THE PLURALITY OPINION
RESTED ITS DETERMINATION, AT LEAST IN PART, ON ITS INABILITY TO DISCERN
ANY ALTERNATIVE PURPOSE WHICH THE STATUTE COULD BE THOUGHT TO SERVE. 
ID., AT 97.  THE CONCURRING OPINION FOUND IN THE SPECIFIC HISTORICAL
EVOLUTION OF THE PROVISION IN QUESTION COMPELLING EVIDENCE OF PUNITIVE
INTENT.  ID., AT 107-109. 

IT IS THUS APPARENT THAT, THOUGH THE GOVERNING CRITERION MAY BE
READILY STATED, EACH CASE HAS TURNED ON ITS OWN HIGHLY PARTICULARIZED
CONTEXT.  WHERE NO PERSUASIVE SHOWING OF A PURPOSE "TO REACH THE
PERSON, NOT THE CALLING," CUMMINGS V. MISSOURI, SUPRA, AT 320, HAS BEEN
MADE, THE COURT HAS NOT HAMPERED LEGISLATIVE REGULATION OF ACTIVITIES
WITHIN ITS SPHERE OF CONCERN, DESPITE THE OFTEN-SEVERE EFFECTS SUCH
REGULATION HAS HAD ON THE PERSONS SUBJECT TO IT.  (FN9)  THUS,
DEPORTATION HAS BEEN HELD TO BE NOT PUNISHMENT, BUT AN EXERCISE OF THE
PLENARY POWER OF CONGRESS TO FIX THE CONDITIONS UNDER WHICH ALIENS ARE
TO BE PERMITTED TO ENTER AND REMAIN IN THIS COUNTRY.  FONG YUE TING V.
UNITED STATES, 149 U.S. 698, 730; SEE GALVAN V. PRESS, 347 U.S. 522,
530-531.  SIMILARLY, THE SETTING BY A STATE OF QUALIFICATIONS FOR THE
PRACTICE OF MEDICINE, AND THEIR MODIFICATION FROM TIME TO TIME, IS AN
INCIDENT OF THE STATE'S POWER TO PROTECT THE HEALTH AND SAFETY OF ITS
CITIZENS, AND ITS DECISION TO BAR FROM PRACTICE PERSONS WHO COMMIT OR
HAVE COMMITTED A FELONY IS TAKEN AS EVIDENCING AN INTENT TO EXERCISE
THAT REGULATORY POWER, AND NOT A PURPOSE TO ADD TO THE PUNISHMENT OF EX
FELONS.  HAWKER V. NEW YORK, 170 U.S. 189.  SEE DE VEAU V. BRAISTED,
SUPRA (REGULATION OF CRIME ON THE WATERFRONT THROUGH DISQUALIFICATION
OF EX-FELONS FROM HOLDING UNION OFFICE).  CF. HELVERING V. MITCHELL,
303 U.S. 391, 397-401, HOLDING THAT, WITH RESPECT TO DEFICIENCIES DUE
TO FRAUD, A 50 PERCENT ADDITION TO THE TAX IMPOSED WAS NOT PUNISHMENT
SO AS TO PREVENT, UPON PRINCIPLES OF DOUBLE JEOPARDY, ITS ASSESSMENT
AGAINST ONE ACQUITTED OF TAX EVASION. 

TURNING, THEN, TO THE PARTICULAR STATUTORY PROVISION BEFORE US,
APPELLEE CANNOT SUCCESSFULLY CONTEND THAT THE LANGUAGE AND STRUCTURE OF
SEC. 202(N), OR THE NATURE OF THE DEPRIVATION, REQUIRES US TO RECOGNIZE
A PUNITIVE DESIGN.  CF. WONG WING V. UNITED STATES, SUPRA
(IMPRISONMENT, AT HARD LABOR UP TO ONE YEAR, OF PERSON FOUND TO BE
UNLAWFULLY IN THE COUNTRY).  HERE THE SANCTION IS THE MERE DENIAL OF A
NONCONTRACTUAL GOVERNMENTAL BENEFIT.  NO AFFIRMATIVE DISABILITY OR
RESTRAINT IS IMPOSED, AND CERTAINLY NOTHING APPROACHING THE "INFAMOUS
PUNISHMENT" OF IMPRISONMENT, AS IN WONG WING, ON WHICH GREAT RELIANCE
IS MISTAKENLY PLACED.  MOREOVER, FOR REASONS ALREADY GIVEN (ANTE, PP.
611-612), IT CANNOT BE SAID, AS WAS SAID OF THE STATUTE IN CUMMINGS V.
MISSOURI, SUPRA, AT 319; SEE DENT V. WEST VIRGINIA, 129 U.S. 114, 126,
THAT THE DISQUALIFICATION OF CERTAIN DEPORTEES FROM RECEIPT OF SOCIAL
SECURITY BENEFITS WHILE THEY ARE NOT LAWFULLY IN THIS COUNTRY BEARS NO
RATIONAL CONNECTION TO THE PURPOSES OF THE LEGISLATION OF WHICH IT IS A
PART, AND MUST WITHOUT MORE THEREFORE BE TAKEN AS EVIDENCING A
CONGRESSIONAL DESIRE TO PUNISH.  APPELLEE ARGUES, HOWEVER, THAT THE
HISTORY AND SCOPE OF SEC. 202(N) PROVE THAT NO SUCH POSTULATED PURPOSE
CAN BE THOUGHT TO HAVE MOTIVATED THE LEGISLATURE, AND THAT THEY
PERSUASIVELY SHOW THAT A PUNITIVE PURPOSE IN FACT LAY BEHIND THE
STATUTE.   WE DO NOT AGREE. 

WE OBSERVE INITIALLY THAT ONLY THE CLEAREST PROOF COULD SUFFICE TO
ESTABLISH THE UNCONSTITUTIONALITY OF A STATUTE ON SUCH A GROUND. 
JUDICIAL INQUIRIES INTO CONGRESSIONAL MOTIVES ARE AT BEST A HAZARDOUS
MATTER, AND WHEN THAT INQUIRY SEEKS TO GO BEHIND OBJECTIVE
MANIFESTATIONS IT BECOMES A DUBIOUS AFFAIR INDEED.  MOREOVER, THE
PRESUMPTION OF CONSTITUTIONALITY WITH WHICH THIS ENACTMENT, LIKE ANY
OTHER, COMES TO US FORBIDS US LIGHTLY TO CHOOSE THAT READING OF THE
STATUTE'S SETTING WHICH WILL INVALIDATE IT OVER THAT WHICH WILL SAVE
IT.  "IT IS NOT ON SLIGHT IMPLICATION AND VAGUE CONJECTURE THAT THE
LEGISLATURE IS TO BE PRONOUNCED TO HAVE TRANSCENDED ITS POWERS, AND ITS
ACTS TO BE CONSIDERED AS VOID."  FLETCHER V. PECK, 6 CRANCH 87, 128. 

OF THE SOCIAL SECURITY PROGRAM.  THE PROVISION ORIGINATED IN THE HOUSE
OF REPRESENTATIVES.  H.R. 9366, 83D CONG., 2D SESS., SEC. 108.  THE
DISCUSSION IN THE HOUSE COMMITTEE REPORT, H.R. REP. NO. 1698, 83D
CONG., 2D SESS., PP. 5, 25, 77, DOES NOT EXPRESS THE PURPOSE OF THE
STATUTE.  HOWEVER, IT DOES SAY THAT THE TERMINATION OF BENEFITS WOULD
APPLY TO THOSE PERSONS WHO WERE "DEPORTED FROM THE UNITED STATES
BECAUSE OF ILLEGAL ENTRY, CONVICTION OF A CRIME, OR SUBVERSIVE ACTIVITY
...  ."  ID., AT 25.  IT WAS EVIDENTLY THE THOUGHT THAT SUCH WAS THE
SCOPE OF THE STATUTE RESULTING FROM ITS APPLICATION TO DEPORTATION
UNDER THE 14 NAMED PARAGRAPHS OF SEC. 241(A) OF THE IMMIGRATION AND
NATIONALITY ACT.  ID., AT 77.  (FN10) 

THE SENATE COMMITTEE REJECTED THE PROPOSAL FOR THE STATED REASON THAT
IT HAD "NOT HAD AN OPPORTUNITY TO GIVE SUFFICIENT STUDY TO ALL THE
POSSIBLE IMPLICATIONS OF THIS PROVISION, WHICH INVOLVES TERMINATION OF
BENEFIT RIGHTS UNDER THE CONTRIBUTORY PROGRAM OF OLD-AGE AND SURVIVORS
INSURANCE  ...  ."  S. REP. NO. 1987, 83D CONG., 2D SESS., P. 23; SEE
ALSO ID., AT 76.  HOWEVER, IN CONFERENCE, THE PROPOSAL WAS RESTORED IN
MODIFIED FORM, (FN11) AND AS MODIFIED WAS ENACTED AS SEC. 202(N).  SEE
H.R. CONF. REP. NO. 2679, 83D CONG., 2D SESS., P. 18. 

APPELLEE ARGUES THAT THIS HISTORY DEMONSTRATES THAT CONGRESS WAS NOT
CONCERNED WITH THE FACT OF A BENEFICIARY'S DEPORTATION - WHICH IT IS
CLAIMED ALONE WOULD JUSTIFY THIS LEGISLATION AS BEING PURSUANT TO A
POLICY RELEVANT TO REGULATION OF THE SOCIAL SECURITY SYSTEM - BUT THAT
IT SOUGHT TO REACH CERTAIN GROUNDS FOR DEPORTATION, THUS EVIDENCING A
PUNITIVE INTENT.  (FN12)  IT IS IMPOSSIBLE TO FIND IN THE MEAGRE
HISTORY THE UNMISTAKABLE EVIDENCE OF PUNITIVE INTENT WHICH, UNDER
PRINCIPLES ALREADY DISCUSSED, IS REQUIRED BEFORE A CONGRESSIONAL
ENACTMENT OF THIS KIND MAY BE STRUCK DOWN.  EVEN WERE THAT HISTORY TO
BE TAKEN AS EVIDENCING CONGRESS' CONCERN WITH THE GROUNDS, RATHER THAN
THE FACT, OF DEPORTATION, WE DO NOT THINK THAT THIS, STANDING ALONE,
WOULD SUFFICE TO ESTABLISH A PUNITIVE PURPOSE.  THIS WOULD STILL BE A
FAR CRY FROM THE SITUATIONS INVOLVED IN SUCH CASES AS CUMMINGS, WONG
WING, AND GARLAND (SEE ANTE, P. 617), AND FROM THAT IN LOVETT, SUPRA,
WHERE THE LEGISLATION WAS ON ITS FACE AIMED AT PARTICULAR INDIVIDUALS. 
THE LEGISLATIVE RECORD, HOWEVER, FALLS SHORT OF ANY PERSUASIVE SHOWING
THAT CONGRESS WAS IN FACT CONCERNED ALONE WITH THE GROUNDS OF
DEPORTATION.  TO BE SURE CONGRESS DID NOT APPLY THE TERMINATION
PROVISION TO ALL DEPORTEES.  HOWEVER, IT IS EVIDENT THAT NEITHER DID IT
REST THE OPERATION OF THE STATUTE ON THE OCCURRENCE OF THE UNDERLYING
ACT.  THE FACT OF DEPORTATION ITSELF REMAINED AN ESSENTIAL CONDITION
FOR LOSS OF BENEFITS, AND EVEN IF A BENEFICIARY WERE SAVED FROM
DEPORTATION ONLY THROUGH DISCRETIONARY SUSPENSION BY THE ATTORNEY
GENERAL UNDER SEC. 244 OF THE IMMIGRATION AND NATIONALITY ACT (66 STAT.
214, 8 U.S.C. SEC. 1254), SEC. 202(N) WOULD NOT REACH HIM. 

MOREOVER, THE GROUNDS FOR DEPORTATION REFERRED TO IN THE COMMITTEE
REPORT EMBRACE THE GREAT MAJORITY OF THOSE DEPORTED, AS IS EVIDENT FROM
AN EXAMINATION OF THE FOUR OMITTED GROUNDS, SUMMARIZED IN THE MARGIN. 
(FN13)  INFERENCES DRAWN FROM THE OMISSION OF THOSE GROUNDS CANNOT
ESTABLISH, TO THE DEGREE OF CERTAINTY REQUIRED, THAT CONGRESSIONAL
CONCERN WAS WHOLLY WITH THE ACTS LEADING TO DEPORTATION, AND NOT WITH
THE FACT OF DEPORTATION.  (FN14)  TO HOLD OTHERWISE WOULD BE TO REST ON
THE "SLIGHT IMPLICATION AND VAGUE CONJECTURE" AGAINST WHICH CHIEF
JUSTICE MARSHALL WARNED.  FLETCHER V. PECK, SUPRA, AT 128. 

THE SAME ANSWER MUST BE MADE TO ARGUMENTS DRAWN FROM THE FAILURE OF
CONGRESS TO APPLY SEC.  202(N) TO BENEFICIARIES VOLUNTARILY RESIDING
ABROAD.  BUT CF. SEC. 202(T), ANTE, NOTE 5.  CONGRESS MAY HAVE FAILED
TO CONSIDER SUCH PERSONS; OR IT MAY HAVE THOUGHT THEIR NUMBER TOO
SLIGHT, OR THE PERMANENCE OF THEIR VOLUNTARY RESIDENCE ABROAD TOO
UNCERTAIN, TO WARRANT APPLICATION OF THE STATUTE TO THEM, WITH ITS
ATTENDANT ADMINISTRATIVE PROBLEMS OF SUPERVISION AND ENFORCEMENT. 
AGAIN, WE CANNOT WITH CONFIDENCE REJECT ALL THOSE ALTERNATIVES WHICH
IMAGINATIVENESS CAN BRING TO MIND, SAVE THAT ONE WHICH MIGHT REQUIRE
THE INVALIDATION OF THE STATUTE.  

REVERSED. 
          

FOOTNOTES

Footnote 1-  SECTION 202(N) PROVIDES AS FOLLOWS: 

"(N)(1)  IF ANY INDIVIDUAL IS (AFTER THE DATE OF ENACTMENT OF THIS
SUBSECTION) DEPORTED UNDER PARAGRAPH (1), (2), (4), (5), (6), (7),
(10), (11), (12), (14), (15), (16), (17), OR (18) OF SECTION 241(A) OF
THE IMMIGRATION AND NATIONALITY ACT, THEN, NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS TITLE: 

"(A)  NO MONTHLY BENEFIT UNDER THIS SECTION OR SECTION 223 (42 U.S.C.
SEC. 423, RELATING TO "DISABILITY INSURANCE BENEFITS") SHALL BE PAID TO
SUCH INDIVIDUAL, ON THE BASIS OF HIS WAGES AND SELF-EMPLOYMENT INCOME,
FOR ANY MONTH OCCURRING (I) AFTER THE MONTH IN WHICH THE SECRETARY IS
NOTIFIED BY THE ATTORNEY GENERAL THAT SUCH INDIVIDUAL HAS BEEN SO
DEPORTED, AND (II) BEFORE THE MONTH IN WHICH SUCH INDIVIDUAL IS
THEREAFTER LAWFULLY ADMITTED TO THE UNITED STATES FOR PERMANENT
RESIDENCE:    "(B)  IF NO BENEFIT COULD BE PAID TO SUCH INDIVIDUAL (OR
IF NO BENEFIT COULD BE PAID TO HIM IF HE WERE ALIVE) FOR ANY MONTH BY
REASON OF SUBPARAGRAPH (A), NO MONTHLY BENEFIT UNDER THIS SECTION SHALL
BE PAID, ON THE BASIS OF HIS WAGES AND SELF-EMPLOYMENT INCOME, FOR SUCH
MONTH TO ANY OTHER PERSON WHO IS NOT A CITIZEN OF THE UNITED STATES AND
IS OUTSIDE THE UNITED STATES FOR ANY PART OF SUCH MONTH, AND: 

"(C)  NO LUMP-SUM DEATH PAYMENT SHALL BE MADE ON THE BASIS OF SUCH
INDIVIDUAL'S WAGES AND SELF-EMPLOYMENT INCOME IF HE DIES (I) IN OR
AFTER THE MONTH IN WHICH SUCH NOTICE IS RECEIVED, AND (II) BEFORE THE
MONTH IN WHICH HE IS THEREAFTER LAWFULLY ADMITTED TO THE UNITED STATES
FOR PERMANENT RESIDENCE. 

"SECTION 203(B) AND (C) OF THIS ACT SHALL NOT APPLY WITH RESPECT TO
ANY SUCH INDIVIDUAL FOR ANY MONTH FOR WHICH NO MONTHLY BENEFIT MAY BE
PAID TO HIM BY REASON OF THIS PARAGRAPH. 

"(2)  AS SOON AS PRACTICABLE AFTER THE DEPORTATION OF ANY INDIVIDUAL
UNDER ANY OF THE PARAGRAPHS OF SECTION 241(A) OF THE IMMIGRATION AND
NATIONALITY ACT ENUMERATED IN PARAGRAPH (1) IN THIS SUBSECTION, THE
ATTORNEY GENERAL SHALL NOTIFY THE SECRETARY OF SUCH DEPORTATION." 

THE PROVISIONS OF SEC. 241(A) OF THE IMMIGRATION AND NATIONALITY ACT
ARE SUMMARIZED IN NOTES 10, 13, POST, PP. 618, 620. 

Footnote 2-  UNDER PARAGRAPH (1)(B) OF SEC. 202(N) (SEE NOTE 1, ANTE),
APPELLEE'S WIFE, BECAUSE OF HER RESIDENCE HERE, HAS REMAINED ELIGIBLE
FOR BENEFITS PAYABLE TO HER AS THE WIFE OF AN INSURED INDIVIDUAL.  SEE
SEC. 202(B), 53 STAT. 1364, AS AMENDED, 42 U.S.C. SEC. 402(B). 

Footnote 3- SECTION 205(G) PROVIDES AS FOLLOWS: 

"(G)  ANY INDIVIDUAL, AFTER ANY FINAL DECISION OF THE BOARD MADE
AFTER A HEARING TO WHICH HE WAS A PARTY, IRRESPECTIVE OF THE AMOUNT IN
CONTROVERSY, MAY OBTAIN A REVIEW OF SUCH DECISION BY A CIVIL ACTION
COMMENCED WITHIN SIXTY DAYS AFTER THE MAILING TO HIM OF NOTICE OF SUCH
DECISION OR WITHIN SUCH FURTHER TIME AS THE BOARD MAY ALLOW  ...  .  AS
PART OF ITS ANSWER THE BOARD SHALL FILE A CERTIFIED COPY OF THE
TRANSCRIPT OF THE RECORD INCLUDING THE EVIDENCE UPON WHICH THE FINDINGS
AND DECISION COMPLAINED OF ARE BASED.  THE COURT SHALL HAVE POWER TO
ENTER, UPON THE PLEADINGS AND TRANSCRIPT OF THE RECORD, A JUDGMENT
AFFIRMING, MODIFYING, OR REVERSING THE DECISION OF THE BOARD, WITH OR
WITHOUT REMANDING THE CAUSE FOR A REHEARING.  THE FINDINGS OF THE BOARD
AS TO ANY FACT, IF SUPPORTED BY SUBSTANTIAL EVIDENCE, SHALL BE
CONCLUSIVE  ...  .  THE JUDGMENT OF THE COURT SHALL BE FINAL EXCEPT
THAT IT SHALL BE SUBJECT TO REVIEW IN THE SAME MANNER AS A JUDGMENT IN
OTHER CIVIL ACTIONS." 

Footnote 4-  IN ADDITION, ELIGIBILITY FOR DISABILITY INSURANCE BENEFITS IS OF
COURSE SUBJECT TO THE FURTHER CONDITION OF THE INCURRING OF A
DISABILITY AS DEFINED IN THE ACT.  SEC. 223, 42 U.S.C.  SEC. 423. 
SECONDARY BENEFICIARIES MUST MEET THE TESTS OF FAMILY RELATIONSHIP TO
THE WAGE EARNER SET FORTH IN THE ACT.  SEC. 202(B)-(H), 42 U.S.C. SEC.
402(B)-(H). 

Footnote 5-  THE ACT DOES NOT PROVIDE FOR THE TERMINATION OF BENEFITS OF NON
RESIDENT CITIZENS, OR OF SOME ALIENS WHO LEAVE THE COUNTRY VOLUNTARILY
ALTHOUGH MANY NONRESIDENT ALIENS DO LOSE THEIR ELIGIBILITY BY VIRTUE
OF THE PROVISIONS OF SEC. 202(T), 70 STAT. 835, AS AMENDED, 42 U.S.C.
SEC. 402(T) - OR OF ALIENS DEPORTED PURSUANT TO PARAGRAPHS 3, 8, 9, OR
13 OF THE 18 PARAGRAPHS OF SEC. 241(A) OF THE IMMIGRATION AND
NATIONALITY ACT.  SEE NOTE 13, POST. 

Footnote 6-  ART. I, SEC. 9, CL. 3: 

"NO BILL OF ATTAINDER OR EX POST FACTO LAW SHALL BE PASSED." 

ART. III, SEC. 2, CL. 3: 

"THE TRIAL OF ALL CRIMES, EXCEPT IN CASES OF IMPEACHMENT, SHALL BE BY
JURY; AND SUCH TRIAL SHALL BE HELD IN THE STATE WHERE THE SAID CRIMES
SHALL HAVE BEEN COMMITTED  ...  ." 

AMEND. VI: 

"IN ALL CRIMINAL PROSECUTIONS THE ACCUSED SHALL ENJOY THE RIGHT TO A
SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY OF THE STATE AND DISTRICT
WHEREIN THE CRIME SHALL HAVE BEEN COMMITTED, WHICH DISTRICT SHALL HAVE
BEEN PREVIOUSLY ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE
AND CAUSE OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES
AGAINST HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOUR; AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE." 

Footnote 7-  APPELLEE ALSO ADDS, BUT HARDLY ARGUES, THE CONTENTION THAT HE
HAS BEEN DEPRIVED OF HIS RIGHTS UNDER THE FIRST AMENDMENT, SINCE THE
ADVERSE CONSEQUENCES STEMMED FROM "MERE PAST MEMBERSHIP" IN THE
COMMUNIST PARTY.  THIS CONTENTION, WHICH IS NO MORE THAN A COLLATERAL
ATTACK ON APPELLEE'S DEPORTATION, IS NOT OPEN TO HIM. 

Footnote 8-  SEE ALSO PIERCE V. CARSKADON, 16 WALL.  234.  A WEST VIRGINIA
STATUTE PROVIDING THAT A NONRESIDENT WHO HAD SUFFERED A JUDGMENT IN AN
ACTION COMMENCED BY ATTACHMENT, BUT IN WHICH HE HAD NOT BEEN PERSONALLY
SERVED AND DID NOT APPEAR, COULD WITHIN ONE YEAR PETITION THE COURT FOR
A REOPENING OF THE JUDGMENT AND A TRIAL ON THE MERITS, WAS AMENDED IN
1865 SO AS TO CONDITION THAT RIGHT ON THE TAKING OF AN EXCULPATORY OATH
THAT THE DEFENDANT HAD NEVER SUPPORTED THE CONFEDERACY.  ON THE
AUTHORITY OF CUMMINGS AND GARLAND, THE AMENDMENT WAS INVALIDATED. 

Footnote 9-  AS PRIOR DECISIONS MAKE CLEAR, COMPARE EX PARTE GARLAND, SUPRA,
WITH HAWKER V. NEW YORK, SUPRA, THE SEVERITY OF A SANCTION IS NOT
DETERMINATIVE OF ITS CHARACTER AS "PUNISHMENT." 

Footnote 10-  PARAGRAPHS (1), (2), AND (10) OF SEC. 241(A) RELATE TO UNLAWFUL
ENTRY, OR ENTRY NOT COMPLYING WITH CERTAIN CONDITIONS; PARAGRAPHS (6)
AND (7) APPLY TO "SUBVERSIVE" AND RELATED ACTIVITIES; THE REMAINDER OF
THE INCLUDED PARAGRAPHS ARE CONCERNED WITH CONVICTIONS OF DESIGNATED
CRIMES, OR THE COMMISSION OF ACTS RELATED TO THEM, SUCH AS NARCOTICS
ADDICTION OR PROSTITUTION. 

Footnote 11-  FOR EXAMPLE, UNDER THE HOUSE VERSION TERMINATION OF BENEFITS OF
A DEPORTEE WOULD ALSO HAVE TERMINATED BENEFITS PAID TO SECONDARY
BENEFICIARIES BASED ON THE EARNING RECORDS OF THE DEPORTEE.  THE
CONFERENCE PROPOSAL LIMITED THIS EFFECT TO SECONDARY BENEFICIARIES WHO
WERE NONRESIDENT ALIENS.  SEE NOTE 2, ANTE. 

Footnote 12-  APPELLEE ALSO RELIES ON THE JUXTAPOSITION OF THE PROPOSED SEC.
108 AND CERTAIN OTHER PROVISIONS, SOME OF WHICH WERE ENACTED AND SOME
OF WHICH WERE NOT.  THIS ARGUMENT IS TOO CONJECTURAL TO WARRANT
DISCUSSION.  IN ADDITION, RELIANCE IS PLACED ON A LETTER WRITTEN TO THE
SENATE FINANCE COMMITTEE BY APPELLANT'S PREDECESSOR IN OFFICE, OPPOSING
THE ENACTMENT OF WHAT IS NOW SEC. 202(U) OF THE ACT, 70 STAT. 838, 42
U.S.C. SEC. 402(U), ON THE GROUND THAT THE SECTION WAS "IN THE NATURE
OF A PENALTY AND BASED ON CONSIDERATIONS FOREIGN TO THE OBJECTIVES" OF
THE PROGRAM.  SOCIAL SECURITY AMENDMENTS OF 1955, HEARINGS BEFORE THE
SENATE COMMITTEE ON FINANCE, 84TH CONG., 2D SESS., P. 1319.  THE
SECRETARY WENT ON TO SAY THAT "PRESENT LAW RECOGNIZES ONLY THREE
NARROWLY LIMITED EXCEPTIONS (OF WHICH SEC. 202(N) IS ONE) TO THE BASIC
PRINCIPLE THAT BENEFITS ARE PAID WITHOUT REGARD TO THE ATTITUDES,
OPINIONS, BEHAVIOR, OR PERSONAL CHARACTERISTICS OF THE INDIVIDUAL  ...
."  IT SHOULD BE OBSERVED, HOWEVER, THAT THE SECRETARY DID NOT SPEAK OF
SEC. 202(N) AS A PENALTY, AS HE DID OF THE PROPOSED SEC. 202(U).  THE
LATTER PROVISION IS CONCEDEDLY PENAL, AND APPLIES ONLY PURSUANT TO A
JUDGMENT OF A COURT IN A CRIMINAL CASE. 

Footnote 13-  THEY ARE:  (1) PERSONS INSTITUTIONALIZED AT PUBLIC EXPENSE
WITHIN FIVE YEARS AFTER ENTRY BECAUSE OF "MENTAL DISEASE, DEFECT, OR
DEFICIENCY" NOT SHOWN TO HAVE ARISEN SUBSEQUENT TO ADMISSION (SEC.
241(A)(3)); (2) PERSONS BECOMING A PUBLIC CHARGE WITHIN FIVE YEARS
AFTER ENTRY FROM CAUSES NOT SHOWN TO HAVE ARISEN SUBSEQUENT TO
ADMISSION SEC. 241(A)(8)); (3) PERSONS ADMITTED AS NONIMMIGRANTS (SEE
SEC. 101(A)(15), 66 STAT. 167, 8 U.S.C. SEC. 1101(A)(15)) WHO FAIL TO
MAINTAIN, OR COMPLY WITH THE CONDITIONS OF, SUCH STATUS (SEC.
241(A)(9)); (4) PERSONS KNOWINGLY AND FOR GAIN INDUCING OR AIDING,
PRIOR TO OR WITHIN FIVE YEARS AFTER ENTRY, ANY OTHER ALIEN TO ENTER OR
ATTEMPT TO ENTER UNLAWFULLY (SEC. 241(A)(13)). 

Footnote 14-  WERE WE TO ENGAGE IN SPECULATION, IT WOULD NOT BE DIFFICULT TO
CONJECTURE THAT CONGRESS MAY HAVE BEEN LED TO EXCLUDE THESE FOUR
GROUNDS OF DEPORTATION OUT OF COMPASSIONATE OR DE MINIMIS
CONSIDERATIONS. 

MR. JUSTICE BLACK, DISSENTING.

FOR THE REASONS STATED HERE AND IN THE DISSENTS OF MR. JUSTICE
DOUGLAS AND MR. JUSTICE BRENNAN I AGREE WITH THE DISTRICT COURT THAT
THE UNITED STATES IS DEPRIVING APPELLEE, EPHRAM NESTOR, OF HIS
STATUTORY RIGHT TO OLD-AGE BENEFITS IN VIOLATION OF THE UNITED STATES
CONSTITUTION. 

NESTOR CAME TO THIS COUNTRY FROM BULGARIA IN 1913 AND LIVED HERE
CONTINUOUSLY FOR 43 YEARS, UNTIL JULY 1956.  HE WAS THEN DEPORTED FROM
THIS COUNTRY FOR HAVING BEEN A COMMUNIST FROM 1933 TO 1939.  AT THAT
TIME MEMBERSHIP IN THE COMMUNIST PARTY AS SUCH WAS NOT ILLEGAL AND WAS
NOT EVEN A STATUTORY GROUND FOR DEPORTATION.  FROM DECEMBER 1936 TO
JANUARY 1955 NESTOR AND HIS EMPLOYERS MADE REGULAR PAYMENTS TO THE
GOVERNMENT UNDER THE FEDERAL INSURANCE CONTRIBUTIONS ACT, 26 U.S.C.
SECS. 3101-3125.   THESE FUNDS WENT TO A SPECIAL FEDERAL OLD-AGE AND
SURVIVORS INSURANCE TRUST FUND UNDER 49 STAT. 622, 53 STAT. 1362, AS
AMENDED, 42 U.S.C. SEC. 401, IN RETURN FOR WHICH NESTOR, LIKE MILLIONS
OF OTHERS, EXPECTED TO RECEIVE PAYMENTS WHEN HE REACHED THE STATUTORY
AGE.  IN 1954, 15 YEARS AFTER NESTOR HAD LAST BEEN A COMMUNIST, AND 18
YEARS AFTER HE BEGAN TO MAKE PAYMENTS INTO THE OLD-AGE SECURITY FUND,
CONGRESS PASSED A LAW PROVIDING, AMONG OTHER THINGS, THAT ANY PERSON
WHO HAD BEEN DEPORTED FROM THIS COUNTRY BECAUSE OF PAST COMMUNIST
MEMBERSHIP UNDER 66 STAT. 205, 8 U.S.C. SEC. 1251(A)(6)(C) SHOULD BE
WHOLLY CUT OFF FROM ANY BENEFITS OF THE FUND TO WHICH HE HAD
CONTRIBUTED UNDER THE LAW.  68 STAT. 1083, 42 U.S.C. SEC. 402(N). 
AFTER THE GOVERNMENT DEPORTED NESTOR IN 1956 IT NOTIFIED HIS WIFE, WHO
HAD REMAINED IN THIS COUNTRY, THAT HE WAS CUT OFF AND NO FURTHER
PAYMENTS WOULD BE MADE TO HIM.  THIS ACTION, IT SEEMS TO ME, TAKES
NESTOR'S INSURANCE WITHOUT JUST COMPENSATION AND IN VIOLATION OF THE
DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.  MOREOVER, IT IMPOSES AN EX
POST FACTO LAW AND BILL OF ATTAINDER BY STAMPING HIM, WITHOUT A COURT
TRIAL, AS UNWORTHY TO RECEIVE THAT FOR WHICH HE HAS PAID AND WHICH THE
GOVERNMENT PROMISED TO PAY HIM.  THE FACT THAT THE COURT IS SUSTAINING
THIS ACTION INDICATES THE EXTENT TO WHICH PEOPLE ARE WILLING TO GO
THESE DAYS TO OVERLOOK VIOLATIONS OF THE CONSTITUTION PERPETRATED
AGAINST ANYONE WHO HAS EVER EVEN INNOCENTLY BELONGED TO THE COMMUNIST
PARTY.

I. 

IN LYNCH V. UNITED STATES, 292 U.S. 571, THIS COURT UNANIMOUSLY HELD
THAT CONGRESS WAS WITHOUT POWER TO REPUDIATE AND ABROGATE IN WHOLE OR
IN PART ITS PROMISES TO PAY AMOUNTS CLAIMED BY SOLDIERS UNDER THE WAR
RISK INSURANCE ACT OF 1917, SECS. 400-405, 40 STAT. 409.  THIS COURT
HELD THAT SUCH A REPUDIATION WAS INCONSISTENT WITH THE PROVISION OF THE
FIFTH AMENDMENT THAT "NO PERSON SHALL BE  ...  DEPRIVED OF LIFE,
LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS OF LAW; NOR SHALL PRIVATE
PROPERTY BE TAKEN FOR PUBLIC USE, WITHOUT JUST COMPENSATION."  THE
COURT TODAY PUTS THE LYNCH CASE ASIDE ON THE GROUND THAT "IT IS HARDLY
PROFITABLE TO ENGAGE IN CONCEPTUALIZATIONS REGARDING 'EARNED RIGHTS'
AND 'GRATUITIES.'"  FROM THIS SOUND PREMISE THE COURT GOES ON TO SAY
THAT WHILE "THE 'RIGHT' TO SOCIAL SECURITY BENEFITS IS IN ONE SENSE
'EARNED,'" YET THE GOVERNMENT'S INSURANCE SCHEME NOW BEFORE US RESTS
NOT ON THE IDEA OF THE CONTRIBUTORS TO THE FUND EARNING SOMETHING, BUT
SIMPLY PROVIDES THAT THEY MAY "JUSTLY CALL" UPON THE GOVERNMENT "IN
THEIR LATER YEARS, FOR PROTECTION FROM 'THE RIGORS OF THE POOR HOUSE AS
WELL AS FROM THE HAUNTING FEAR THAT SUCH A LOT AWAITS THEM WHEN
JOURNEY'S END IS NEAR.'"  THESE ARE NICE WORDS BUT THEY CANNOT CONCEAL
THE FACT THAT THEY SIMPLY TELL THE CONTRIBUTORS TO THIS INSURANCE FUND
THAT DESPITE THEIR OWN AND THEIR EMPLOYERS' PAYMENTS THE GOVERNMENT, IN
PAYING THE BENEFICIARIES OUT OF THE FUND, IS MERELY GIVING THEM
SOMETHING FOR NOTHING AND CAN STOP DOING SO WHEN IT PLEASES.  THIS, IN
MY JUDGMENT, REVEALS A COMPLETE MISUNDERSTANDING OF THE PURPOSE
CONGRESS AND THE COUNTRY HAD IN PASSING THAT LAW.  IT WAS THEN
GENERALLY AGREED, AS IT IS TODAY, THAT IT IS NOT DESIRABLE THAT AGED
PEOPLE THINK OF THE GOVERNMENT AS GIVING THEM SOMETHING FOR NOTHING. 
AN EXCELLENT STATEMENT OF THIS VIEW, QUOTED BY MR. JUSTICE DOUGLAS IN
ANOTHER CONNECTION, WAS MADE BY SENATOR GEORGE, THE CHAIRMAN OF THE
FINANCE COMMITTEE WHEN THE SOCIAL SECURITY ACT WAS PASSED, AND ONE VERY
FAMILIAR WITH THE PHILOSOPHY THAT BROUGHT IT ABOUT: 

"IT COMPORTS BETTER THAN ANY SUBSTITUTE WE HAVE DISCOVERED WITH THE
AMERICAN CONCEPT THAT FREE MEN WANT TO EARN THEIR SECURITY AND NOT ASK
FOR DOLES - THAT WHAT IS DUE AS A MATTER OF EARNED RIGHT IS FAR BETTER
THAN A GRATUITY  ...  

"SOCIAL SECURITY IS NOT A HANDOUT; IT IS NOT CHARITY; IT IS NOT
RELIEF.  IT IS AN EARNED RIGHT BASED UPON THE CONTRIBUTIONS AND
EARNINGS OF THE INDIVIDUAL.  AS AN EARNED RIGHT, THE INDIVIDUAL IS
ELIGIBLE TO RECEIVE HIS BENEFIT IN DIGNITY AND SELF-RESPECT."  102
CONG. REC. 15110. 

THE PEOPLE COVERED BY THIS ACT ARE NOW ABLE TO RELY WITH COMPLETE
ASSURANCE ON THE FACT THAT THEY WILL BE COMPELLED TO CONTRIBUTE
REGULARLY TO THIS FUND WHENEVER EACH CONTRIBUTION FALLS DUE.  I BELIEVE
THEY ARE ENTITLED TO RELY WITH THE SAME ASSURANCE ON GETTING THE
BENEFITS THEY HAVE PAID FOR AND HAVE BEEN PROMISED, WHEN THEIR
DISABILITY OR AGE MAKES THEIR INSURANCE PAYABLE UNDER THE TERMS OF THE
LAW.  THE COURT DID NOT PERMIT THE GOVERNMENT TO BREAK ITS PLIGHTED
FAITH WITH THE SOLDIERS IN THE LYNCH CASE; IT SAID THE CONSTITUTION
FORBADE SUCH GOVERNMENTAL CONDUCT.  I WOULD SAY PRECISELY THE SAME
THING HERE.    THE COURT CONSOLES THOSE WHOSE INSURANCE IS TAKEN AWAY
TODAY, AND OTHERS WHO MAY SUFFER THE SAME FATE IN THE FUTURE, BY SAYING
THAT A DECISION REQUIRING THE SOCIAL SECURITY SYSTEM TO KEEP FAITH
"WOULD DEPRIVE IT OF THE FLEXIBILITY AND BOLDNESS IN ADJUSTMENT TO EVER
CHANGING CONDITIONS WHICH IT DEMANDS."  PEOPLE WHO PAY PREMIUMS FOR
INSURANCE USUALLY THINK THEY ARE PAYING FOR INSURANCE, NOT FOR
"FLEXIBILITY AND BOLDNESS."  I CANNOT BELIEVE THAT ANY PRIVATE
INSURANCE COMPANY IN AMERICA WOULD BE PERMITTED TO REPUDIATE ITS
MATURED CONTRACTS WITH ITS POLICYHOLDERS WHO HAVE REGULARLY PAID ALL
THEIR PREMIUMS IN RELIANCE UPON THE GOOD FAITH OF THE COMPANY.  IT IS
TRUE, AS THE COURT SAYS, THAT THE ORIGINAL ACT CONTAINED A CLAUSE,
STILL IN FORCE, THAT EXPRESSLY RESERVES TO CONGRESS "THE RIGHT TO
ALTER, AMEND, OR REPEAL ANY PROVISION" OF THE ACT.  SEC. 1104, 49 STAT.
648, 42 U.S.C. SEC. 1304.  CONGRESS, OF COURSE PROPERLY RETAINED THAT
POWER.  IT COULD REPEAL THE ACT SO AS TO CEASE TO OPERATE ITS OLD-AGE
INSURANCE ACTIVITIES FOR THE FUTURE.  THIS MEANS THAT IT COULD STOP
COVERING NEW PEOPLE, AND EVEN STOP INCREASING ITS OBLIGATIONS TO ITS
OLD CONTRIBUTORS.  BUT THAT IS QUITE DIFFERENT FROM DISAPPOINTING THE
JUST EXPECTATIONS OF THE CONTRIBUTORS TO THE FUND WHICH THE GOVERNMENT
HAS COMPELLED THEM AND THEIR EMPLOYERS TO PAY ITS TREASURY.  THERE IS
NOTHING "CONCEPTUALISTIC" ABOUT SAYING, AS THIS COURT DID IN LYNCH,
THAT SUCH A TAKING AS THIS THE CONSTITUTION FORBIDS. 
          

II. 

IN PART II OF ITS OPINION, THE COURT THROWS OUT A LINE OF HOPE BY ITS
SUGGESTION THAT IF CONGRESS IN THE FUTURE CUTS OFF SOME OTHER GROUP
FROM THE BENEFITS THEY HAVE BOUGHT FROM THE GOVERNMENT, THIS COURT
MIGHT POSSIBLY HOLD THAT THE FUTURE HYPOTHETICAL ACT VIOLATES THE DUE
PROCESS CLAUSE.  IN DOING SO IT READS DUE PROCESS AS AFFORDING ONLY
MINIMAL PROTECTION, AND UNDER THIS READING IT WILL PROTECT ALL FUTURE
GROUPS FROM DESTRUCTION OF THEIR RIGHTS ONLY IF CONGRESS "MANIFESTS A
PATENTLY ARBITRARY CLASSIFICATION, UTTERLY LACKING IN RATIONAL
JUSTIFICATION."  THE DUE PROCESS CLAUSE SO DEFINED PROVIDES LITTLE
PROTECTION INDEED COMPARED WITH THE SPECIFIC SAFEGUARDS OF THE
CONSTITUTION SUCH AS ITS PROHIBITIONS AGAINST TAKING PRIVATE PROPERTY
FOR A PUBLIC USE WITHOUT JUST COMPENSATION, PASSING EX POST FACTO LAWS,
AND IMPOSING BILLS OF ATTAINDER.  I CANNOT AGREE, HOWEVER, THAT THE DUE
PROCESS CLAUSE IS PROPERLY INTERPRETED WHEN IT IS USED TO SUBORDINATE
AND DILUTE THE SPECIFIC SAFEGUARDS OF THE BILL OF RIGHTS, AND WHEN "DUE
PROCESS" ITSELF BECOMES SO WHOLLY DEPENDENT UPON THIS COURT'S IDEA OF
WHAT IS "ARBITRARY" AND "RATIONAL."  SEE LEVINE V. UNITED STATES, 362
U.S. 610, 620 (DISSENTING OPINION); ADAMSON V. CALIFORNIA, 332 U.S. 46,
89-92 (DISSENTING OPINION); ROCHIN V. CALIFORNIA, 342 U.S. 165, 174
(CONCURRING OPINION).  ONE REASON FOR MY BELIEF IN THIS RESPECT IS THAT
I AGREE WITH WHAT IS SAID IN THE COURT'S QUOTATION FROM HELVERING V.
DAVIS, 301 U.S. 619, 644: 

"WHETHER WISDOM OR UNWISDOM RESIDES IN THE SCHEME OF BENEFITS SET
FORTH IN TITLE II, IT IS NOT FOR US TO SAY.  THE ANSWER TO SUCH
INQUIRIES MUST COME FROM CONGRESS, NOT THE COURTS.  OUR CONCERN HERE,
AS OFTEN, IS WITH POWER, NOT WITH WISDOM." 

AND YET THE COURT'S ASSUMPTION OF ITS POWER TO HOLD ACTS
UNCONSTITUTIONAL BECAUSE THE COURT THINKS THEY ARE ARBITRARY AND
IRRATIONAL CAN BE NEITHER MORE NOR LESS THAN A JUDICIAL FORAY INTO THE
FIELD OF GOVERNMENTAL POLICY.  BY THE USE OF THIS DUE PROCESS FORMULA
THE COURT DOES NOT, AS ITS PROPONENTS FREQUENTLY PROCLAIM, ABSTAIN FROM
INTERFERING WITH THE CONGRESSIONAL POLICY.  IT ACTIVELY ENTERS THAT
FIELD WITH NO STANDARDS EXCEPT ITS OWN CONCLUSION AS TO WHAT IS
"ARBITRARY" AND WHAT IS "RATIONAL."  AND THIS ELASTIC FORMULA GIVES THE
COURT A FURTHER POWER, THAT OF HOLDING LEGISLATIVE ACTS CONSTITUTIONAL
ON THE GROUND THAT THEY ARE NEITHER ARBITRARY NOR IRRATIONAL, EVEN
THOUGH THE ACTS VIOLATE SPECIFIC BILL OF RIGHTS SAFEGUARDS.  SEE MY
DISSENT IN ADAMSON V. CALIFORNIA, SUPRA. WHETHER THIS ACT HAD "RATIONAL
JUSTIFICATION" WAS, IN MY JUDGMENT, FOR CONGRESS; WHETHER IT VIOLATES
THE FEDERAL CONSTITUTIONAL IS FOR US TO DETERMINE, UNLESS WE ARE BY
CIRCUMLOCUTION TO ABDICATE THE POWER THAT THIS COURT HAS BEEN HELD TO
HAVE EVER SINCE MARBURY V. MADISON, 1 CRANCH 137. 
          

III. 

THE COURT IN PART III OF ITS OPINION HOLDS THAT THE 1954 ACT IS NOT
AN EX POST FACTO LAW OR BILL OR ATTAINDER EVEN THOUGH IT CREATES A
CLASS OF DEPORTEES WHO CANNOT COLLECT THEIR INSURANCE BENEFITS BECAUSE
THEY WERE ONCE COMMUNISTS AT A TIME WHEN SIMPLY BEING A COMMUNIST WAS
NOT ILLEGAL.  THE COURT ALSO PUTS GREAT EMPHASIS ON ITS BELIEF THAT THE
ACT HERE IS NOT PUNISHMENT.  ALTHOUGH NOT BELIEVING THAT THE PARTICULAR
LABEL "PUNISHMENT" IS OF DECISIVE IMPORTANCE, I THINK THE ACT DOES
IMPOSE PUNISHMENT EVEN IN A CLASSIC SENSE.  THE BASIC REASON FOR
NESTOR'S LOSS OF HIS INSURANCE PAYMENTS IS THAT HE WAS ONCE A
COMMUNIST.  THIS MAN, NOW 69 YEARS OLD, HAS BEEN DRIVEN OUT OF THE
COUNTRY WHERE HE HAS LIVED FOR 43 YEARS TO A LAND WHERE HE IS
PRACTICALLY A STRANGER, UNDER AN ACT AUTHORIZING HIS DEPORTATION MANY
YEARS AFTER HIS COMMUNIST MEMBERSHIP.  CF. GALVAN V. PRESS, 347 U.S.
522, 532, 533 (DISSENTING OPINIONS).  NOW A SIMILAR EX POST FACTO LAW
DEPRIVES HIM OF HIS INSURANCE, WHICH, WHILE PETTY AND INSIGNIFICANT IN
AMOUNT TO THIS GREAT GOVERNMENT, MAY WELL BE THIS EXILE'S DAILY BREAD,
FOR THE SAME REASON AND IN ACCORD WITH THE GENERAL FASHION OF THE DAY -
THAT IS, TO PUNISH IN EVERY WAY POSSIBLE ANYONE WHO EVER MADE THE
MISTAKE OF BEING A COMMUNIST IN THIS COUNTRY OR WHO IS SUPPOSED EVER TO
HAVE BEEN ASSOCIATED WITH ANYONE WHO MADE THAT MISTAKE.  SEE, E.G.,
BARENBLATT V. UNITED STATES, 360 U.S. 109, AND UPHAUS V. WYMAN, 360
U.S. 72.  IN UNITED STATES V. LOVETT, 328 U.S. 303, 315-316, WE SAID: 

"  ...  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." 

FAITHFUL OBSERVANCE OF OUR HOLDINGS IN THAT CASE, IN EX PARTE
GARLAND, 4 WALL.  333, AND IN CUMMINGS V. MISSOURI, 4 WALL.  277,
WOULD, IN MY JUDGMENT, REQUIRE US TO HOLD THAT THE 1954 ACT IS A BILL
OF ATTAINDER.  IT IS A CONGRESSIONAL ENACTMENT AIMED AT AN EASILY
ASCERTAINABLE GROUP; IT IS CERTAINLY PUNISHMENT IN ANY NORMAL SENSE OF
THE WORD TO TAKE AWAY FROM ANY PERSON THE BENEFITS OF AN INSURANCE
SYSTEM INTO WHICH HE AND HIS EMPLOYER HAVE PAID THEIR MONEYS FOR ALMOST
TWO DECADES; AND IT DOES ALL THIS WITHOUT A TRIAL ACCORDING TO DUE
PROCESS OF LAW.  IT IS TRUE THAT THE LOVETT, CUMMINGS AND GARLAND COURT
OPINIONS WERE NOT UNANIMOUS, BUT THEY NONETHELESS REPRESENT POSITIVE
PRECEDENTS ON HIGHLY IMPORTANT QUESTIONS OF INDIVIDUAL LIBERTY WHICH
SHOULD NOT BE EXPLAINED AWAY WITH COBWEBBERY REFINEMENTS.  IF THE COURT
IS GOING TO OVERRULE THESE CASES IN WHOLE OR IN PART, AND ADOPT THE
VIEWS OF PREVIOUS DISSENTERS, I BELIEVE IT SHOULD BE DONE CLEARLY AND
FORTHRIGHTLY. 

A BASIC CONSTITUTIONAL INFIRMITY OF THIS ACT, IN MY JUDGMENT, IS THAT
IT IS A PART OF A PATTERN OF LAWS ALL OF WHICH VIOLATE THE FIRST
AMENDMENT OUT OF FEAR THAT THIS COUNTRY IS IN GRAVE DANGER IF IT LETS A
HANDFUL OF COMMUNIST FANATICS OR SOME OTHER EXTREMIST GROUP MAKE THEIR
ARGUMENTS AND DISCUSS THEIR IDEAS.  THIS FEAR, I THINK, IS BASELESS. 
IT REFLECTS A LACK OF FAITH IN THE STURDY PATRIOTISM OF OUR PEOPLE AND
DOES NOT GIVE TO THE WORLD A TRUE PICTURE OF OUR ABIDING STRENGTH.  IT
IS AN UNWORTHY FEAR IN A COUNTRY THAT HAS A BILL OF RIGHTS CONTAINING
PROVISONS FOR FAIR TRIALS, FREEDOM OF SPEECH, PRESS AND RELIGION, AND
OTHER SPECIFIC SAFEGUARDS DESIGNED TO KEEP MEN FREE.  I REPEAT ONCE
MORE THAT I THINK THIS NATION'S GREATEST SECURITY LIES, NOT IN TRUSTING
TO A MOMENTARY MAJORITY OF THIS COURT'S VIEW AT ANY PARTICULAR TIME OF
WHAT IS "PATENTLY ARBITRARY," BUT IN WHOLEHEARTED DEVOTION TO AND
OBSERVANCE OF OUR CONSTITUTIONAL FREEDOMS.  SEE WIEMAN V. UPDEGRAFF,
344 U.S. 183, 192 (CONCURRING OPINION). 

I WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT WHICH HELD THAT
NESTOR IS CONSTITUTIONALLY ENTITLED TO COLLECT HIS INSURANCE. 

MR. JUSTICE DOUGLAS, DISSENTING.

APPELLEE CAME TO THIS COUNTRY FROM BULGARIA IN 1913 AND WAS EMPLOYED,
SO AS TO BE COVERED BY THE SOCIAL SECURITY ACT, FROM DECEMBER 1936 TO
JANUARY 1955 - A PERIOD OF 19 YEARS.  HE BECAME ELIGIBLE FOR RETIREMENT
AND FOR SOCIAL SECURITY BENEFITS IN NOVEMBER 1955 AND WAS AWARDED
$55.60 PER MONTH.  IN JULY 1956 HE WAS DEPORTED FOR HAVING BEEN A
MEMBER OF THE COMMUNIST PARTY FROM 1933 TO 1939.  PURSUANT TO A LAW,
ENACTED SEPTEMBER 1, 1954, HE WAS THEREUPON DENIED PAYMENT OF FURTHER
SOCIAL SECURITY BENEFITS. 

THIS 1954 LAW SEEMS TO ME TO BE A CLASSIC EXAMPLE OF A BILL OF
ATTAINDER, WHICH ART. I, SEC. 9 OF THE CONSTITUTION PROHIBITS CONGRESS
FROM ENACTING.  A BILL OF ATTAINDER IS A LEGISLATIVE ACT WHICH INFLICTS
PUNISHMENT WITHOUT A JUDICIAL TRIAL.  CUMMINGS V. MISSOURI, 4 WALL. 
277, 323. 

IN THE OLD DAYS PUNISHMENT WAS METED OUT TO A CREDITOR OR RIVAL OR
ENEMY BY SENDING HIM TO THE GALLOWS.  BUT AS RECENTLY STATED BY IRVING
BRANT: (FN1) 

"  ...  BY SMITING A MAN DAY AFTER DAY WITH SLANDEROUS WORDS, BY
TAKING AWAY HIS OPPORTUNITY TO EARN A LIVING, YOU CAN DRAIN THE BLOOD
FROM HIS VEINS WITHOUT EVEN SCRATCHING HIS SKIN. 

"TODAY'S BILL OF ATTAINDER IS BROADER THAN THE CLASSIC FORM, AND NOT
SO TALL AND SHARP.  THERE IS MENTAL IN PLACE OF PHYSICAL TORTURE, AND
CONFISCATION OF TOMMORROW'S BREAD AND BUTTER INSTEAD OF YESTERDAY'S
LAND AND GOLD.  WHAT IS PERFECTLY CLEAR IS THAT HATE, FEAR AND
PREJUDICE PLAY THE SAME ROLE TODAY, IN THE DESTRUCTION OF HUMAN RIGHTS
IN AMERICA THAT THEY DID IN ENGLAND WHEN A FRENZIED MOB OF LORDS,
JUDGES, BISHOPS AND SHOEMAKERS TURNED THE TITUS OATES BLACKLIST INTO A
HANGMAN'S RECORD.  HATE, JEALOUSY AND SPITE CONTINUE TO FILL THE
LEGISLATIVE ATTAINDER LISTS JUST AS THEY DID IN THE IRISH PARLIAMENT OF
EX-KING JAMES." 

BILLS OF ATTAINDER, WHEN THEY IMPOSED PUNISHMENT LESS THAN DEATH,
WERE BILLS OF PAINS AND PENALTIES AND EQUALLY BEYOND THE CONSTITUTIONAL
POWER OF CONGRESS.  CUMMINGS V. MISSOURI, SUPRA, AT 323. 

PUNISHMENT IN THE SENSE OF A BILL OF ATTAINDER INCLUDES THE
"DEPRIVATION OR SUSPENSION OF POLITICAL OR CIVIL RIGHTS."  CUMMINGS V.
MISSOURI, SUPRA, AT 322.  IN THAT CASE IT WAS BARRING A PRIEST FROM
PRACTICING HIS PROFESSION.  IN EX PARTE GARLAND, 4 WALL.  333, IT WAS
EXCLUDING A MAN FROM PRACTICING LAW IN THE FEDERAL COURTS.  IN UNITED
STATES V. LOVETT, 328 U.S. 303, IT WAS CUTTING OFF EMPLOYEES'
COMPENSATION AND BARRING THEM PERMANENTLY FROM GOVERNMENT SERVICE. 
CUTTING OFF A PERSON'S LIVELIHOOD BY DENYING HIM ACCRUED SOCIAL
BENEFITS - PART OF HIS PROPERTY INTERESTS - IS NO LESS A PUNISHMENT. 
HERE, AS IN THE OTHER CASES CITED, THE PENALTY EXACTED HAS ONE OF THE
CLASSIC PURPOSES OF PUNISHMENT (FN2) - "TO REPRIMAND THE WRONGDOER TO
DETER OTHERS."  TROP V. DULLES, 356 U.S. 86, 96. 

SOCIAL SECURITY PAYMENTS ARE NOT GRATUITIES.  THEY ARE PRODUCTS OF A
CONTRIBUTORY SYSTEM, THE FUNDS BEING RAISED BY PAYMENT FROM EMPLOYEES
AND EMPLOYERS ALIKE, OR IN CASE OF SELF-EMPLOYED PERSONS, BY THE
INDIVIDUAL ALONE.  SEE SOCIAL SECURITY BOARD V. NIEROTKO, 327 U.S. 358,
364.  THE FUNDS ARE PLACED IN THE FEDERAL OLD-AGE AND SURVIVORS
INSURANCE TRUST FUND, 42 U.S.C. SEC.  401(A); AND ONLY THOSE WHO
CONTRIBUTE TO THE FUND ARE ENTITLED TO ITS BENEFITS, THE AMOUNT OF
BENEFITS BEING RELATED TO THE AMOUNT OF CONTRIBUTIONS MADE.  SEE STARK,
SOCIAL SECURITY:  ITS IMPORTANCE TO LAWYERS, 43 A.B.A.J. 319, 321
(1957).  AS THE LATE SENATOR GEORGE, LONG CHAIRMAN OF THE SENATE
FINANCE COMMITTEE AND ONE OF THE AUTHORS OF THE SOCIAL SECURITY SYSTEM,
SAID: 

"THERE HAS DEVELOPED THROUGH THE YEARS A FEELING BOTH IN AND OUT OF
CONGRESS THAT THE CONTRIBUTORY SOCIAL INSURANCE PRINCIPLE FITS OUR
TIMES - THAT IT SERVES A VITAL NEED THAT CANNOT BE AS WELL SERVED
OTHERWISE.  IT COMPORTS BETTER THAN ANY SUBSTITUTE WE HAVE DISCOVERED
WITH THE AMERICAN CONCEPT THAT FREE MEN WANT TO EARN THEIR SECURITY AND
NOT ASK FOR DOLES - THAT WHAT IS DUE AS A MATTER OF EARNED RIGHT IS FAR
BETTER THAN A GRATUITY  ... 

"SOCIAL SECURITY IS NOT A HANDOUT; IT IS NOT CHARITY; IT IS NOT
RELIEF.  IT IS AN EARNED RIGHT BASED UPON THE CONTRIBUTIONS AND
EARNINGS OF THE INDIVIDUAL.  AS AN EARNED RIGHT, THE INDIVIDUAL IS
ELIGIBLE TO RECEIVE HIS BENEFIT IN DIGNITY AND SELF-RESPECT."  102
CONG. REC. 15110. 

SOCIAL SECURITY BENEFITS HAVE RIGHTLY COME TO BE REGARDED AS BASIC
FINANCIAL PROTECTION AGAINST THE HAZARDS OF OLD AGE AND DISABILITY.  AS
STATED IN A RECENT HOUSE REPORT: 

"THE OLD-AGE AND SURVIVORS INSURANCE SYSTEM IS THE BASIC PROGRAM
WHICH PROVIDES PROTECTION FOR AMERICA'S FAMILIES AGAINST THE LOSS OF
EARNED INCOME UPON THE RETIREMENT OR DEATH OF THE FAMILY PROVIDER.  THE
PROGRAM PROVIDES BENEFITS RELATED TO EARNED INCOME AND SUCH BENEFITS
ARE PAID FOR BY THE CONTRIBUTIONS MADE WITH RESPECT TO PERSONS WORKING
IN COVERED OCCUPATIONS."  H.R. REP. NO. 1189, 84TH CONG., 1ST SESS. 2. 

CONGRESS COULD PROVIDE THAT ONLY PEOPLE RESIDENT HERE COULD GET
SOCIAL SECURITY BENEFITS.  YET BOTH THE HOUSE AND THE SENATE REJECTED
ANY RESIDENCE REQUIREMENTS.  SEE H.R. REP. NO. 1698, 83D CONG., 2D
SESS. 24-25; S. REP. NO. 1987, 83D CONG., 2D SESS. 23.  CONGRESS
CONCEDEDLY MIGHT AMEND THE PROGRAM TO MEET NEW CONDITIONS.  BUT MAY IT
TAKE AWAY SOCIAL SECURITY BENEFITS FROM ONE PERSON OR FROM A GROUP OF
PERSONS FOR VINDICTIVE REASONS?  COULD CONGRESS ON DEPORTING AN ALIEN
FOR HAVING BEEN A COMMUNIST CONFISCATE HIS HOME, APPROPRIATE HIS
SAVINGS ACCOUNTS, AND THUS SEND HIM OUT OF THE COUNTRY PENNILESS?  I
THINK NOT.  ANY SUCH ACT WOULD BE A BILL OF ATTAINDER.  THE DIFFERENCE,
AS I SEE IT, BETWEEN THAT CASE AND THIS IS ONE MERELY OF DEGREE. 
SOCIAL SECURITY BENEFITS, MADE UP IN PART OF THIS ALIEN'S OWN EARNINGS,
ARE TAKEN FROM HIM BECAUSE HE ONCE WAS A COMMUNIST.    THE VIEW THAT
SEC. 202(N), WITH WHICH WE NOW DEAL, IMPOSES A PENALTY WAS TAKEN BY
SECRETARY FOLSOM, APPELLANT'S PREDECESSOR, WHEN OPPOSING ENLARGEMENT OF
THE CATEGORY OF PEOPLE TO BE DENIED BENEFITS OF SOCIAL SECURITY, E.G.,
THOSE CONVICTED OF TREASON AND SEDITION.  HE SAID: 

"BECAUSE THE DEPRIVATION OF BENEFITS AS PROVIDED IN THE AMENDMENT IS
IN THE NATURE OF A PENALTY AND BASED ON CONSIDERATIONS FOREIGN TO THE
OBJECTIVES AND PROVISIONS OF THE OLD-AGE AND SURVIVORS INSURANCE
PROGRAM, THE AMENDMENT MAY WELL SERVE AS A PRECEDENT FOR EXTENSION OF
SIMILAR PROVISIONS TO OTHER PUBLIC PROGRAMS AND TO OTHER CRIMES WHICH,
WHILE PERHAPS DIFFERENT IN DEGREE, ARE DIFFICULT TO DISTINGUISH IN
PRINCIPLE. 

"THE PRESENT LAW RECOGNIZES ONLY THREE NARROWLY LIMITED EXCEPTIONS
(FN3) TO THE BASIC PRINCIPLE THAT BENEFITS ARE PAID WITHOUT REGARD TO
THE ATTITUDES, OPINIONS, BEHAVIOR, OR PERSONAL CHARACTERISTICS OF THE
INDIVIDUAL  ...  ."  HEARINGS, SENATE FINANCE COMMITTEE ON SOCIAL
SECURITY AMENDMENTS OF 1955, 84TH CONG., 2D SESS. 1319. 

THE COMMITTEE REPORTS, THOUGH MEAGRE, SUPPORT SECRETARY FOLSOM IN
THAT CHARACTERIZATION OF SEC. 202(N).  THE HOUSE REPORT TERSELY STATED
THAT TERMINATION OF THE BENEFITS WOULD APPLY TO THOSE PERSONS WHO WERE
DEPORTED "BECAUSE OF ILLEGAL ENTRY, CONVICTION OF A CRIME, OR
SUBVERSIVE ACTIVITY."   H.R. REP. NO. 1698, 83D CONG., 2D SESS. 25. 
THE AIM AND PURPOSE ARE CLEAR - TO TAKE AWAY FROM A PERSON BY
LEGISLATIVE FIAT PROPERTY WHICH HE HAS ACCUMULATED BECAUSE HE HAS ACTED
IN A CERTAIN WAY OR EMBRACED A CERTAIN IDEOLOGY.  THAT IS A MODERN
VERSION OF THE BILL OF ATTAINDER - AS PLAIN, AS DIRECT, AS EFFECTIVE AS
THOSE WHICH RELIGIOUS PASSIONS ONCE LOOSED IN ENGLAND AND WHICH LATER
WERE EMPLOYED AGAINST THE TORIES HERE.  (FN4)  I WOULD AFFIRM THIS
JUDGMENT. 
          

FOOTNOTES

Footnote 1-  ADDRESS ENTITLED BILLS OF ATTAINDER IN 1787 AND TODAY.  COLUMBIA
LAW REVIEW DINNER 1954, PUBLISHED IN 1959 BY THE EMERGENCY CIVIL
LIBERTIES COMMITTEE, UNDER THE TITLE CONGRESSIONAL INVESTIGATIONS AND
BILLS OF ATTAINDER. 

Footnote 2-  THE BROAD SWEEP OF THE IDEA OF PUNISHMENT BEHIND THE CONCEPT OF
THE BILL OF ATTAINDER WAS STATED AS FOLLOWS BY IRVING BRANT, OP. CIT.,
SUPRA, NOTE 1, 9-10: 

"IN 1794 THE AMERICAN PEOPLE WERE IN A STATE OF EXCITEMENT COMPARABLE
TO THAT WHICH EXISTS TODAY.  SUPPORTERS OF THE FRENCH REVOLUTION HAD
ORGANIZED THE DEMOCRATIC SOCIETIES - BLATANTLY ADOPTING THAT SUBVERSIVE
TITLE.  THEN THE WHISKY REBELLION EXPLODED IN WESTERN PENNSYLVANIA. 
THE DEMOCRATIC SOCIETIES WERE BLAMED.  A MOTION CENSURING THE SOCIETIES
WAS INTRODUCED IN THE HOUSE OF REPRESENTATIVES. 

"THERE, IN 1794, YOU HAD THE BASIC DIVISION IN AMERICAN THOUGHT - ON
ONE SIDE THE DOCTRINE OF POLITICAL LIBERTY FOR EVERYBODY, WITH
COLLECTIVE SECURITY RESTING ON THE CAPACITY OF THE PEOPLE FOR SELF
GOVERNMENT; ON THE OTHER SIDE THE DOCTRINE THAT THE PEOPLE COULD NOT BE
TRUSTED AND POLITICAL LIBERTY MUST BE RESTRAINED. 

"JAMES MADISON CHALLENGED THIS LATTER DOCTRINE.  THE INVESTIGATIVE
POWER OF CONGRESS OVER PERSONS, HE CONTENDED, WAS LIMITED TO INQUIRY
INTO THE CONDUCT OF INDIVIDUALS IN THE PUBLIC SERVICE.  'OPINIONS,' HE
SAID, 'ARE NOT THE SUBJECTS OF LEGISLATION.'  START CRITICIZING PEOPLE
FOR ABUSE OF THEIR RESERVED RIGHTS, AND THE CENSURE MIGHT EXTEND TO
FREEDOM OF SPEECH AND PRESS.  WHAT WOULD BE THE EFFECT ON THE PEOPLE
THUS CONDEMNED?  SAID MADISON: 

"'IT IS IN VAIN TO SAY THAT THIS INDISCRIMINATE CENSURE IS NO
PUNISHMENT  ...  .  IS NOT THIS PROPOSITION, IF VOTED, A BILL OF
ATTAINDER?' 

"MADISON WON HIS FIGHT, NOT BECAUSE HE CALLED THE RESOLUTION A BILL
OF ATTAINDER, BUT BECAUSE IT ATTAINTED TOO MANY MEN WHO WERE GOING TO
VOTE IN THE NEXT ELECTION.  THE DEFINITION, HOWEVER, WAS THERE - A BILL
OF ATTAINDER - AND THE DEFINITION WAS GIVEN BY THE FOREMOST AMERICAN
AUTHORITY ON THE PRINCIPLES OF LIBERTY AND ORDER UNDERLYING OUR SYSTEM
OF GOVERNMENT." 

Footnote 3-  THE THREE EXCEPTIONS REFERRED TO WERE (1) SEC. 202(N); (2) ACT
OF SEPTEMBER 1, 1954, 68 STAT. 1142, 5 U.S.C. SECS. 2281-2288; (3)
REGULATION OF THE SOCIAL SECURITY ADMINISTRATION, 20 CFR SEC. 403.409 -
DENYING DEPENDENT'S BENEFITS TO A PERSON FOUND GUILTY OF FELONIOUS
HOMICIDE OF THE INSURED WORKER. 

Footnote 4-  BRANT, OP. CIT., SUPRA, NOTE 1, STATES AT P. 9: 

"WHAT WERE THE FRAMERS AIMING AT WHEN THEY FORBADE BILLS OF
ATTAINDER?  THEY WERE, OF COURSE, GUARDING AGAINST THE RELIGIOUS
PASSIONS THAT DISGRACED CHRISTIANITY IN EUROPE.  BUT AMERICAN BILLS OF
ATTAINDER, JUST BEFORE 1787, WERE TYPICALLY USED BY REVOLUTIONARY
ASSEMBLIES TO RID THE STATES OF BRITISH LOYALISTS.  BY A CURIOUS
COINCIDENCE, IT WAS USUALLY THE TORY WITH A GOOD FARM WHO WAS SENT INTO
EXILE, AND ALL TOO OFTEN IT WAS SOMEBODY WHO WANTED THAT FARM WHO
INDUCED THE LEGISLATURE TO ATTAINT HIM.  PATRIOTISM COULD SERVE AS A
CLOAK FOR GREED AS EASILY AS RELIGION DID IN THAT IRISH PARLIAMENT OF
JAMES THE SECOND. 

"BUT CONSIDER A CASE IN WHICH NOTHING COULD BE SAID AGAINST THE
MOTIVE.  DURING THE REVOLUTION, GOVERNOR PATRICK HENRY INDUCED THE
VIRGINIA LEGISLATURE TO PASS A BILL OF ATTAINDER CONDEMNING JOSIAH
PHILLIPS TO DEATH.  HE WAS A TRAITOR, A MURDERER, A PIRATE AND AN
OUTLAW.  WHEN RATIFICATION OF THE NEW CONSTITUTION CAME BEFORE THE
VIRGINIA CONVENTION, HENRY INVEIGHED AGAINST IT BECAUSE IT CONTAINED NO
BILL OF RIGHTS.  EDMUND RANDOLPH TAUNTED HIM WITH HIS SPONSORSHIP OF
THE PHILLIPS BILL OF ATTAINDER.  HENRY THEN MADE THE BLUNDER OF
DEFENDING IT.  THE BILL WAS WARRANTED, HE SAID, BECAUSE PHILLIPS WAS NO
SOCRATES.  THAT SHOCKING DEFENSE OF ARBITRARY CONDEMNATION MAY HAVE
PRODUCED THE SMALL MARGIN BY WHICH THE CONSTITUTION WAS RATIFIED." 
          

MR. JUSTICE BRENNAN, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE

DOUGLAS JOIN, DISSENTING.

WHEN NESTOR QUIT THE COMMUNIST PARTY IN 1939 HIS PAST MEMBERSHIP WAS
NOT A GROUND FOR HIS DEPORTATION.  KESSLER V. STRECKER, 307 U.S. 22. 
IT WAS NOT UNTIL A YEAR LATER THAT PAST MEMBERSHIP WAS MADE A SPECIFIC
GROUND FOR DEPORTATION.  (FN1)  THIS PAST MEMBERSHIP HAS COST NESTOR
DEAR.  IT BROUGHT HIM EXPULSION FROM THE COUNTRY AFTER 43 YEARS'
RESIDENCE - MOST OF HIS LIFE.  NOW MORE IS EXACTED FROM HIM, FOR AFTER
HE HAD BEGUN TO RECEIVE BENEFITS IN 1955 - HAVING WORKED IN COVERED
EMPLOYMENT THE REQUIRED TIME AND REACHED AGE 65 - AND MIGHT ANTICIPATE
RECEIVING THEM THE REST OF HIS LIFE, THE BENEFITS WERE STOPPED PURSUANT
TO SEC. 202(N) OF THE AMENDED SOCIAL SECURITY ACT.  (FN2)  HIS
PREDICAMENT IS VERY REAL - AN AGING MAN DEPRIVED OF THE MEANS WITH
WHICH TO LIVE AFTER BEING SEPARATED FROM HIS FAMILY AND EXILED TO LIVE
AMONG STRANGERS IN A LAND HE QUIT 47 YEARS AGO.  THE COMMON SENSE OF IT
IS THAT HE HAS BEEN PUNISHED SEVERELY FOR HIS PAST CONDUCT. 

EVEN THE 1950 STATUTE DEPORTING ALIENS FOR PAST MEMBERSHIP RAISED
SERIOUS QUESTIONS IN THIS COURT WHETHER THE PROHIBITION AGAINST EX POST
FACTO LAWS WAS VIOLATED.  IN GALVAN V. PRESS, 347 U.S. 522, 531, WE
SAID "SINCE THE INTRINSIC CONSEQUENCES OF DEPORTATION ARE SO CLOSE TO
PUNISHMENT FOR CRIME, IT MIGHT FAIRLY BE SAID ALSO THAT THE EX POST
FACTO CLAUSE, EVEN THOUGH APPLICABLE ONLY TO PUNITIVE LEGISLATION,
SHOULD BE APPLIED TO DEPORTATION."  HOWEVER, PRECEDENTS WHICH TREAT
DEPORTATION NOT AS PUNISHMENT, BUT AS A PERMISSIBLE EXERCISE OF
CONGRESSIONAL POWER TO ENACT THE CONDITIONS UNDER WHICH ALIENS MAY COME
TO AND REMAIN IN THIS COUNTRY, GOVERNED THE DECISION IN FAVOR OF THE
CONSTITUTIONALITY OF THE STATUTE. 

HOWEVER, THE COURT CANNOT REST A DECISION THAT SEC. 202(N) DOES NOT
IMPOSE PUNISHMENT ON CONGRESS' POWER TO REGULATE IMMIGRATION.  IT
ESCAPES THE COMMON-SENSE CONCLUSION THAT CONGRESS HAS IMPOSED
PUNISHMENT BY FINDING THE REQUISITE RATIONAL NEXUS TO A GRANTED POWER
IN THE SUPPOSED FURTHERANCE OF THE SOCIAL SECURITY PROGRAM "ENACTED
PURSUANT TO CONGRESS' POWER TO 'SPEND MONEY IN AID OF THE "GENERAL
WELFARE."'"  I DO NOT UNDERSTAND THE COURT TO DENY THAT BUT FOR THAT
CONNECTION, SEC. 202(N) WOULD IMPOSE PUNISHMENT AND NOT ONLY OFFEND THE
CONSTITUTIONAL PROHIBITION ON EX POST FACTO LAWS BUT ALSO VIOLATE THE
CONSTITUTIONAL GUARANTEES AGAINST IMPOSITION OF PUNISHMENT WITHOUT A
JUDICIAL TRIAL. 

THE COURT'S TEST OF THE CONSTITUTIONALITY OF SEC. 202(N) IS WHETHER
THE LEGISLATIVE CONCERN UNDERLYING THE STATUTE WAS TO REGULATE "THE
ACTIVITY OR STATUS FROM WHICH THE INDIVIDUAL IS BARRED" OR WHETHER THE
STATUTE "IS EVIDENTLY AIMED AT THE PERSON OR CLASS OF PERSONS
DISQUALIFIED."  IT REJECTS THE INFERENCE THAT THE STATUTE IS "AIMED AT
THE PERSON OR CLASS OF PERSONS DISQUALIFIED" BY RELYING UPON THE
PRESUMPTION OF CONSTITUTIONALITY.  THIS PRESUMPTION MIGHT BE A BASIS
FOR SUSTAINING THE STATUTE IF IN FACT THERE WERE TWO OPPOSING
INFERENCES WHICH COULD REASONABLY BE DRAWN FROM THE LEGISLATION, ONE
THAT IT IMPOSES PUNISHMENT AND THE OTHER THAT IT IS PURPOSED TO FURTHER
THE ADMINISTRATION OF THE SOCIAL SECURITY PROGRAM.  THE COURT, HOWEVER,
DOES NOT LIMIT THE PRESUMPTION TO THAT USE.  RATHER THE PRESUMPTION
BECOMES A COMPLETE SUBSTITUTE FOR ANY SUPPORTABLE FINDING OF A RATIONAL
CONNECTION OF SEC. 202(N) WITH THE SOCIAL SECURITY PROGRAM.  FOR ME IT
IS NOT ENOUGH TO STATE THE TEST AND HOLD THAT THE PRESUMPTION ALONE
SATISFIES IT.  I FIND IT NECESSARY TO EXAMINE THE ACT AND ITS
CONSEQUENCES TO ASCERTAIN WHETHER THERE IS GROUND FOR THE INFERENCE OF
A CONGRESSIONAL CONCERN WITH THE ADMINISTRATION OF THE SOCIAL SECURITY
PROGRAM.  ONLY AFTER THIS INQUIRY WOULD I CONSIDER THE APPLICATION OF
THE PRESUMPTION. 

THE COURT SEEMS TO ACKNOWLEDGE THAT THE STATUTE BEARS HARSHLY UPON
THE INDIVIDUAL DISQUALIFIED, BUT STATES THAT THIS IS PERMISSIBLE WHEN A
STATUTE IS ENACTED AS A REGULATION OF THE ACTIVITY.  BUT SURELY THE
HARSHNESS OF THE CONSEQUENCES IS ITSELF A RELEVANT CONSIDERATION TO THE
INQUIRY INTO THE CONGRESSIONAL PURPOSE.  (FN3)  CF. TROP V. DULLES, 356
U.S. 86, 110 (CONCURRING OPINION). 

IT SEEMS TO ME THAT THE STATUTE ITSELF SHOWS THAT THE SOLE
LEGISLATIVE CONCERN WAS WITH "THE PERSON OR CLASS OF PERSONS
DISQUALIFIED."  CONGRESS DID NOT DISQUALIFY FOR BENEFITS ALL
BENEFICIARIES RESIDING ABROAD OR EVEN ALL DEPENDENTS RESIDING ABROAD
WHO ARE ALIENS.  IF THAT HAD BEEN THE CASE I MIGHT AGREE THAT CONGRESS'
CONCERN WOULD HAVE BEEN WITH "THE ACTIVITY OR STATUS" AND NOT WITH THE
"PERSON OR CLASS OF PERSONS DISQUALIFIED."  THE SCALES WOULD THEN BE
TIPPED TOWARD THE CONCLUSION THAT CONGRESS DESIRED TO LIMIT BENEFIT
PAYMENTS TO BENEFICIARIES RESIDING IN THE UNITED STATES SO THAT THE
AMERICAN ECONOMY WOULD BE AIDED BY EXPENDITURE OF BENEFITS HERE. 
INDEED A PROPOSAL ALONG THOSE LINES WAS SUBMITTED TO CONGRESS IN 1954,
AT THE SAME TIME SEC. 202(N) WAS PROPOSED, (FN4) AND IT WAS REJECTED. 
(FN5) 

PERHAPS, THE COURT'S CONCLUSION THAT REGULATION OF "THE ACTIVITY OR
STATUS" WAS THE CONGRESSIONAL CONCERN WOULD BE A FAIR APPRAISAL OF THE
STATUTE IF CONGRESS HAD TERMINATED THE BENEFITS OF ALL ALIEN
BENEFICIARIES WHO ARE DEPORTED.  BUT THAT IS NOT WHAT CONGRESS DID. 
THE 18 GROUNDS FOR WHICH ALIENS MAY BE DEPORTED.  (FN6) 

H.R. REP. NO. 1698, 83D CONG., 2D SESS. 25, 77, CITED BY THE COURT,
DESCRIBES SEC. 202(N) AS INCLUDING PERSONS WHO WERE DEPORTED "BECAUSE
OF UNLAWFUL ENTRY, CONVICTION OF A CRIME, OR SUBVERSIVE ACTIVITY."  THE
ACTS AS NARCOTIC ADDICTION OR PROSTITUTION.  THE COMMON ELEMENT OF THE
14 GROUNDS IS THAT THE ALIEN HAS BEEN GUILTY OF SOME BLAMEWORTHY
CONDUCT.  IN OTHER WORDS CONGRESS WORKED ITS WILL ONLY ON ALIENS
DEPORTED FOR CONDUCT DISPLEASING TO THE LAWMAKERS. 

THIS IS PLAINLY DEMONSTRATED BY THE REMAINING FOUR GROUNDS OF
DEPORTATION, THOSE WHICH DO NOT RESULT IN THE CANCELLATION OF
BENEFITS.  (FN7)  TWO OF THOSE FOUR GROUNDS COVER PERSONS WHO BECOME
PUBLIC CHARGES WITHIN FIVE YEARS AFTER ENTRY FOR REASONS WHICH PREDATED
THE ENTRY.  A THIRD GROUND COVERS THE ALIEN WHO FAILS TO MAINTAIN HIS
NONIMMIGRANT STATUS.  THE FOURTH GROUND REACHES THE ALIEN WHO, PRIOR TO
OR WITHIN FIVE YEARS AFTER ENTRY, AIDS OTHER ALIENS TO ENTER THE
COUNTRY ILLEGALLY. 

THOSE WHO ARE DEPORTED FOR BECOMING PUBLIC CHARGES CLEARLY HAVE NOT,
BY MODERN STANDARDS, ENGAGED IN CONDUCT WORTHY OF CENSURE.  THE
GOVERNMENT'S SUGGESTION THAT THE REASON FOR THEIR EXCLUSION FROM SEC.
202(N) WAS AN UNARTICULATED FEELING OF CONGRESS THAT IT WOULD BE UNFAIR
TO THE "OTHER COUNTRY TO DEPORT SUCH DESTITUTE PERSONS WITHOUT LETTING
THEM RETAIN THEIR MODICUM OF SOCIAL SECURITY BENEFITS" APPEARS AT BEST
FANCIFUL, ESPECIALLY SINCE, BY HYPOTHESIS, THEY ARE DEPORTABLE BECAUSE
THE CONDITIONS WHICH LED TO THEIR BECOMING PUBLIC CHARGES EXISTED PRIOR
TO ENTRY. 

THE EXCLUSION FROM THE OPERATION OF SEC. 202(N) OF ALIENS DEPORTED
FOR FAILURE TO MAINTAIN NONIMMIGRANT STATUS RATIONALLY CAN BE
EXPLAINED, IN THE CONTEXT OF THE WHOLE STATUTE, ONLY AS EVIDENCING THAT
CONGRESS CONSIDERED THAT CONDUCT LESS BLAMEWORTHY.  CERTAINLY THE
GOVERNMENT'S SUGGESTION THAT CONGRESS MAY HAVE THOUGHT IT UNLIKELY THAT
SUCH PERSONS WOULD WORK SUFFICIENT TIME IN COVERED EMPLOYMENT TO BECOME
ELIGIBLE FOR SOCIAL SECURITY BENEFITS CANNOT BE THE REASON FOR THIS
EXCLUSION.  FOR FREQUENTLY THE VERY ACT WHICH EVENTUALLY RESULTS IN THE
DEPORTATION OF PERSONS ON THAT GROUND IS THE SECURING OF PRIVATE
EMPLOYMENT.  FINALLY, IT IS IMPOSSIBLE TO RECONCILE THE CONTINUATION OF
BENEFITS TO ALIENS WHO ARE DEPORTED FOR AIDING OTHER ALIENS TO ENTER
THE COUNTRY ILLEGALLY, EXCEPT UPON THE GROUND THAT CONGRESS FELT THAT
THEIR CONDUCT WAS LESS REPREHENSIBLE.  AGAIN THE GOVERNMENT'S
SUGGESTION THAT THE REASON MIGHT BE CONGRESS' BELIEF THAT THESE ALIENS
WOULD NOT HAVE WORKED IN COVERED EMPLOYMENT MUST BE REJECTED.  FIVE
YEARS AFTER ENTRY WOULD BE AMPLE TIME WITHIN WHICH TO SECURE EMPLOYMENT 
AND QUALIFY.  MOREOVER THE SAME FIVE-YEAR LIMITATION APPLIES TO SEVERAL
OF THE 14 GROUNDS OF DEPORTATION FOR WHICH ALIENS ARE CUT OFF FROM
BENEFITS AND THE GOVERNMENT'S ARGUMENT WOULD APPLY EQUALLY TO THEM IF
THAT IN FACT WAS THE CONGRESSIONAL REASON.    THIS APPRAISAL OF THE
DISTINCTIONS DRAWN BY CONGRESS BETWEEN VARIOUS KINDS OF CONDUCT IMPELS
THE CONCLUSION, BEYOND PERADVENTURE THAT THE DISTINCTIONS CAN BE
UNDERSTOOD ONLY IF THE PURPOSE OF CONGRESS WAS TO STRIKE AT "THE PERSON
OR CLASS OF PERSONS DISQUALIFIED."  THE COURT INVEIGHS AGAINST
INVALIDATING A STATUTE ON "IMPLICATON AND VAGUE CONJECTURE."  RATHER I
THINK THE COURT HAS STRAINED TO SUSTAIN THE STATUTE ON "IMPLICATION AND
VAGUE CONJECTURE," IN HOLDING THAT THE CONGRESSIONAL CONCERN WAS "THE
ACTIVITY OR STATUS FROM WHICH THE INDIVIDUAL IS BARRED."  TODAY'S
DECISION SANCTIONS THE USE OF THE SPENDING POWER NOT TO FURTHER THE
LEGITIMATE OBJECTIVES OF THE SOCIAL SECURITY PROGRAM BUT TO INFLICT
HURT UPON THOSE WHO BY THEIR CONDUCT HAVE INCURRED THE DISPLEASURE OF
CONGRESS.  THE FRAMERS ORDAINED THAT EVEN THE WORST OF MEN SHOULD NOT
BE PUNISHED FOR THEIR PAST ACTS OR FOR ANY CONDUCT WITHOUT ADHERENCE TO
THE PROCEDURAL SAFEGUARDS WRITTEN INTO THE CONSTITUTION.  TODAY'S
DECISION IS TO ME A REGRETFUL RETREAT FROM LOVETT, CUMMINGS AND
GARLAND.