Carlson v. Landon & Butterfield/Opinion of the Court

by Stanley Forman Reed

United States Supreme Court

342 U.S. 524

Carlson  v.  Landon & Butterfield

 Argued: Nov. 26, 1951. --- Decided: March 10, 1952

These cases present a narrow question with several related issues. May the Attorney General, as the executive head of the Immigration and Naturalization Service, ^[1] after taking into custody active alien communists on warrants, ^[2] charging either membership in a group that advocates the overthrow by force of this Government ^[3] or inclusion in any prohibited classes of aliens, ^[4] continue them in custody without bail, at his discretion pending determination as to their deportability, under § 23 of the Internal Security Act? ^[5] Differing views of the Courts of Appeals led us to grant certiorari. 342 U.S. 807, 72 S.Ct. 26; 342 U.S. 810, 72 S.Ct. 42.

I. Facts.-The four petitioners in case No. 35 were arrested under warrants, issued after the enactment of the Internal Security Act of 1950, charging each with being an alien who was a member of the Communist Party of the United States. ^[6] The warrants directed that they be held in custody, ^[7] pending determination of deportability. ^[8] Petitions for habeas corpus were promptly filed alleging that the detention without bond was in violation of the Due Process Clause of the Fifth Amendment ^[9] and the Eighth Amendment to the Constitution of the United States, and that § 20 of the Immigration Act, as amended, was also unconstitutional. See note 5, supra. The allegation appears below. ^[10]

Respondent filed returns defending his orders of detention on the ground that there was reasonable cause to believe that petitioners' release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. These returns were countered by petitioners with allegations of their many years' residence spent in this country without giving basis for fear of action by them inimical to the public welfare during the pendency of their deportation proceedings, their integration into community life through marriage and family connections, and their meticulous adherence to the terms of previous bail, allowed under a former warrant charging deportability. See note 8, supra. On consideration of these undenied allegations, the trial court determined that the Director had not been shown to have abused his discretion. ^[11] This order was reversed on the ground that the Director 'must state some fact upon which a reasonable person could logically conclude that the denial of bail is required to protect the country or to secure the alleged alien's presence for deportation should an order to that effect be the result of the hearing.' ^[12]

On rehearing, the Director made allegation, supported by affidavits, that the Service's dossier of each petitioner contained evidence indicating to him that each was at the time of arrest a member of the Communist Party of the United States and had since 1930 participated or was then actively participating in the Party's indoctrination of others to the prejudice of the public interest. There was no denial of these allegations by any of the petitioners, except Hyun, or any assertion that any of them had completely severed all Communist affiliations or connections. ^[13] As to Hyun the denial was formal and did not include any affidavit denying the facts stated in the Director's affidavit. As the allegations are set out by the Court of Appeals in the carefully detailed opinion of Circuit Judge Stephens, we refrain from any further restatement here. ^[14] The Court of Appeals affirmed the District Court's determination that there was substantial evidence to support the discretion exercised in denying bail.

Respondent Zydok, in case No. 136, was arrested in August 1949 under a recent warrant charging that he was subject to deportation as an alien with membership in an organization advocating the violent overthrow of the Government. Act of October 16, 1918, as amended, 8 U.S.C. (1946 ed.) § 137, 8 U.S.C.A. § 137. At that time he was released on $2,000 bail. Later a deportation hearing was held by the Immigration and Naturalization Service but this Court's decision in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, necessitated a second deportation hearing.

After the effective date, September 23, 1950, of the Internal Security Act of 1950, 64 Stat. 987, respondent was again taken into custody by petitioner on the 1949 warrant, pursuant to radiogram direction from the Acting Commissioner of Immigration and Naturalization referring to § 20 of the Immigration Act of 1917, as amended by § 23 of the Internal Security Act, 8 U.S.C.A. § 156. The respondent was held without bail by petitioner under an order from the Acting Commissioner of Immigration. The rearrest was based on § 22 of the Internal Security Act of 1950 which provides for the deportation of aliens who are members of or affiliated with the Communist Party. 8 U.S.C. (Supp. IV) § 137, 8 U.S.C.A. § 137.

Thereupon respondent filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Michigan, challenging the validity of his detention without bail. The District Court found that petitioner was an alien and had been and was on arrest a member of the Communist Party. The court determined that there had been no abuse of administrative discretion in refusing bail and denied the petition for habeas corpus, 94 F.Supp. 338. ^[15]

The Court of Appeals for the Sixth Circuit, 187 F.2d 802, reversed the District Court, holding that in determining denial of bail the Attorney General could not rest on membership alone in the Communist Party but was under the duty to consider also the likelihood that the alien would appear when ordered to do so under the circumstances as developed in the habeas corpus hearing. The court thought the failure of the Attorney General to allow bail was an abuse of discretion.

That court agreed that the District Court was correct in finding that Zydok was a member of the Communist Party and had been in 1949 the financial secretary of its Hamtramck Division. The respondent's testimony justifies the District Court's finding set out in the margin. ^[16] The record shows other information in the files of the Attorney General, such as attendance at closed meetings of the Party and the Michigan State Convention. The opinion succinctly sets out the facts concerning respondent's integration into American life. We adopt that statement. ^[17] It was said: 'Discretion does not mean decision upon one particular fact or set of facts. It means rather a just and proper decision in view of all the attending circumstances. The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731 (734), 46 L.Ed. 1027. There are many circumstances which involve decision.' 187 F.2d 802, 803.

The Court of Appeals concluded: 'We think that a fair consideration of the factors above set out in their aggregate require that appellant should have been granted bail in some reasonable amount. This view is more nearly in accordance with the spirit of our institutions as it relates even to those who seek protection from the laws which they incongruously seek to destroy. See Carlson v. Landon, Dist. Director, 9 Cir., 186 F.2d 183; United States ex rel. Potash v. Dist. Director, 2 Cir., 169 F.2d 747, 752.' 187 F.2d 804.

II. The Issues.-Petitioners in No. 35, the Carlson case, and respondent in No. 136, the Zydok case, seek respectively reversal or affirmance principally on the same grounds. It is urged that the denial of bail to each was arbitrary and capricious, a violation of the Fifth Amendment; that where there is no evidence to justify a fear of unavailability for the hearings or for the carrying out of a possible judgment of deportation, denial of bail under the circumstances of these cases is an abuse of discretion and violates a claimed right to reasonable bail secured by the Eighth Amendment to the Constitution. Zydok urges, also, that there was an abuse of discretion in rearresting him, when there was no change of circumstances, after his previous release under bond on the same warrant. There are other minor contentions as to irregularities in the proceedings that appear to us immaterial to our consideration of these cases.

The basis for the deportation of presently undesirable aliens resident in the United States is not questioned and requires no reexamination. When legally admitted, they have come at the Nation's invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land. As such visitors and foreign nationals they are entitled in their persons and effects to the protection of our laws. So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders. ^[18]

Changes in world politics and in our internal economy bring legislative adjustments affecting the rights of various classes of aliens to admission and deportation. ^[19] The passage of the Internal Security Act of 1950 marked such a change of attitude toward alien members of the Communist Party of the United States. Theretofore there was a provision for the deportation of alien anarchists and other aliens, who are or were members of organizations devoted to the overthrow by force and violence of the Government of the United States, but the Internal Security Act made Communist membership alone of aliens a sufficient ground for deportation. ^[20] The reasons for the exercise of power are summarized in Title I of the Internal Security Act. It is sufficient here to print § 2(15), 50 U.S.C.A. § 781(15). ^[21] We have no doubt that the doctrines and practices of Communism clearly enough teach the use of force to achieve political control to give constitutional basis, according to any theory of reasonableness or arbitrariness, for Congress to expel known alien communists under its power to regulate the exclusion, admission and expulsion of aliens. ^[22] Congress had before it evidence of resident aliens' leadership in communist domestic activities sufficient to furnish reasonable ground for action against alien resident Communists. The bar against the admission of Communists cannot be differentiated as a matter of power from that against anarchists upheld unanimously half a century ago in the exclusion of Turner. ^[23] Since '(i)t is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful,' ^[24] the fact that petitioners, and respondent Zydok, were made deportable after entry is immaterial. They are deported for what they are now, not for what they were. ^[25] Otherwise, when an alien once legally became a denizen of this country he could not be deported for any reason of which he had not been forewarned at the time of entry. Mankind is not vouchsafed sufficient foresight to justify requiring a country to permit its continuous occupation in peace or war by legally admitted aliens, even though they never violate the laws in effect at their entry. The protection of citizenship is open to those who qualify for its privileges. The lack of a clause in the Constitution specifically empowering such action has never been held to render Congress impotent to deal as a sovereign with resident aliens. ^[26]

III. Constitutionality.-A. Arbitrary, capricious, abuse of discretion.-The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, 'with such opportunity for judicial review of their action as congress may see fit to authorize or permit.' This power is, of course, subject to judicial intervention under the 'paramount law of the constitution.' ^[27]

Deportation is not a criminal proceeding and has never been held to be punishment. No jury sits. No judicial review is guaranteed by the Constitution. ^[28] Since deportation is a particularly drastic remedy where aliens have become absorbed into our community life, ^[29] congress has been careful to provide for full hearing by the Immigration and Naturalization Service before deportation. Such legislative provision requires that those charged with that responsibility exercise it in a manner consistent with due process. ^[30] Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings. Of course purpose to injure could not be imputed generally to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney General to detain aliens without bail, as set out in note 5, supra. ^[31]

The change in language seems to have originated in H.R. 10, 81st Cong., 1st Sess., introduced by Representative Sam Hobbs of Alabama on January 3, 1949. It was intended to clarify the procedure in dealing with deportees and to 'expressly authorize the Attorney General, in his discretion, to hold arrested aliens in custody.' ^[32] The need for clarification arose from varying interpretations of the authority to grant bail under the former bail provision. Note 31, supra. In Prentis v. Manoogian, 16 F.2d 422, 424, the Court of Appeals for the Sixth Circuit had held that by the earlier provision 'Congress intended to grant to the alien a right, and that its failure to follow with some such phrase as 'at the discretion of the commissioner' vests the discretion to avail himself of the opportunity afforded in the alien, and not the discretion to allow bail in the commissioner or director.' On the other hand in United States ex rel. Zapp v. District Director, 120 F.2d 762, the Court of Appeals for the Second Circuit construed the provision to the contrary. It said: 'The natural interpretation of the language used, that the alien 'may be released under a bond,' would indicate that the release is discretionary with the Attorney General; and that appears to be borne out by other provisions of this section, as well as other sections of the immigration laws, where the choice of words appears to have significance.' 120 F.2d at page 765.

In the later case of United States ex rel. Potash v. District Director, 169 F.2d 747, the same court applied its Zapp opinion to explain that the Service's discretion as to bail was not untrammeled but subject to judicial review. ^[33] It was in the light of these cases that Congress inserted in the bail provisions the phrase 'in the discretion of the Attorney General,' the lack of which very phrase the Manoogian case held made bail a right of the detained alien. The present statute does not grant bail as a matter of right.

The Government does not urge that the Attorney General's discretion is not subject to any judicial review, but merely that his discretion can be overturned only on a showing of clear abuse. ^[34] We proceed on the basis suggested by the Government. It is first to be observed that the language of the reports is emphatic in explaining Congress' intention to make the Attorney General's exercise of discretion presumptively correct and unassailable except for abuse. We think the discretion reposed in the Attorney General is at least as great as that found by the Second Circuit in the Potash case, supra, to be in him under the former bail provision. It can only be overridden where it is clearly shown that it 'was without a reasonable foundation.'

The four petitioners in the Carlson case were active in Communist work. In the Zydok case the only evidence is membership in the Party, attendance at closed sessions and the holding of the office of financial secretary of its Hamtramck Division. This evidence goes beyond unexplained membership and shows a degree, minor perhaps in Zydok's case, of participation in Communist activities. As the purpose of the Internal Security Act to deport all alien Communists as a menace to the security of the United States is established by the Internal Security Act itself, Title I, § 2, we conclude that the discretion as to bail in the Attorney General was certainly broad enough to justify his detention to all these parties without bail as a menace to the public interest. As all alien Communists are deportable, like Anarchists, because of Congress' understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the Party's philosophy concerning violence gives adequate ground for detention. It cannot be expected that the Government should be required in addition to show specific acts of sabotage or incitement to subversive action. Such an exercise of discretion is well within that heretofore approved in Knauff v. Shaughnessy, 338 U.S. 537, 541, 70 S.Ct. 309, 311, 94 L.Ed. 317. ^[35] There is no evidence or contention that all persons arrested as deportable under § 22 of the Internal Security Act, note 4, supra, for Communist membership are denied bail. In fact, a report filed with this Court by the Department of Justice in this case at our request shows allowance of bail in the large majority of cases. The refusal of bail in these cases is not arbitrary or capricious or an abuse of power. There is no denial of the due process of the Fifth Amendment under circumstances where there is reasonable apprehension of hurt from aliens charged with a philosophy of violence aganst this Government.

B. Delegation of Legislative Power.-This leaves for consideration the constitutionality of this delegation of authority. We consider first the objection to the alleged unbridled delegation of legislative power in that the Attorney General is left without standards to determine when to admit to bail and when to detain. It is familiar law that in such an examination the entire Act is to be looked at and the meaning of the words determined by their surroundings and connections. Congress can only legislate so far as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose. ^[36] Congress need not make specific standards for each subsidiary executive action in carrying out a policy. ^[37] The bail provision applies to many classes of deportable aliens other than those named in the classes listed in § 22 of the Internal Security Act. See note 4, supra. ^[38] A wide range of discretion in the Attorney General as to bail is required to meet the varying situations arising from the many aliens in this country. ^[39]

The policy and standards as to what aliens are subject to deportation are, in general, clear and definite. 8 U.S.C. §§ 137 and 155, 8 U.S.C.A. §§ 137, 155. Specifically when dealing with alien Communists, as in these cases, the legislative standard for deportation is definite. See notes 3 and 4, supra. In carrying out that policy the Attorney General is not left with untrammeled discretion as to bail. Courts review his determination. Hearings are had, and he must justify his refusal of bail by reference to the legislative scheme to eradicate the evils of Communist activity. The legislative judgment of evils calling for the 1950 amendments to deportation legislation is set out in the introductory sections of the Subversive Activities Control Act. ^[40] So far as pertinent to these proceedings, the new legislation was designed to eliminate the subversive activities of resident aliens who seek to inculcate the doctrine of force and violence into the political philosophy of the American people. To this end provision was made for the detention and deportation of certain noncitizens, including members of the Communist Party. When in the judgment of the Attorney General an alien Communist may so conduct himself pending deportation hearings as to aid in carrying out the objectives of the world communist movement, that alien may be detained. Compare Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834, and Bowles v. Willingham, 321 U.S. 503, 515, 64 S.Ct. 641, 647, 88 L.Ed. 892. This is a permissible delegation of legislative power because the executive judgment is limited by adequate standards. The authority to detain without bail is to be exercised within the framework of the Subversive Activities Control Act to guard against Communist activities pending deportation hearings. Cf. Mahler v. Eby, 264 U.S. 32, 40, 44 S.Ct. 283, 286, 68 L.Ed. 549. We do not see that such discretion violates the Due Process Clause of the Fifth Amendment.

C. Violation of Eighth Amendment.-The contention is also advanced that the Eighth Amendment to the Constitution, note 9, supra, compels the allowance of bail in a reasonable amount. We have in the preceding sections of this opinion set out why this refusal of bail is not an abuse of power, arbitrary or capricious, and why the delegation of discretion to the Attorney General is not unconstitutional. Here we meet the argument that the Constitution requires by the Eighth Amendment, note 9, supra, the same reasonable bail for alien Communists under deportation charges as it accords citizens charged with bailable criminal offenses. Obviously the cases cited by the applicants for habeas corpus fail flatly to support this argument. ^[41] We have found none that do.

The bail clause was lifted with slight changes from the English Bill of Rights Act. ^[42] In England that clause has never been thought to accord a right to bail in all cases, ^[43] but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. ^[44] The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. ^[45] Indeed, the very language of the Amendment fails to say all arrests must be bailable. We think, clearly, here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases.

It should be noted that the problem of habeas corpus after unusual delay in deportation hearings is not involved in this case. Cf. United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747, 751.

IV. Rearrest.-Finally, respondent Zydok argues that his rearrest on the outstanding warrant, after he had once been released on bai, was improper. The inquiry on habeas corpus is limited to the propriety of Zydok's present detention. McNally v. Hill, 293 U.S. 131, 136, 55 S.Ct. 24, 26, 79 L.Ed. 238. While the Attorney General has made a satisfactory showing that he has good cause for detaining Zydok without bail, no order based on a new warrant has been entered. ^[46] Zydok did not allow the proceedings to run along but objected promptly by habeas corpus to detention under the warrant. It has been said that the rule in criminal cases is that a warrant once executed is exhausted. ^[47] This guards against precipitate rearrest. Where, however, the rearrest comes after the discovery of error in release, a new warrant is not necessarily required. ^[48] State cases have held that an escaped person or one who secured his release by trick may be rearrested without a new warrant. ^[49] Although a warrant for rearrest is required by statute, when a convicted person is paroled his status on violation of the parole is the same as that of an escaped prisoner. ^[50] When a prisoner is out on bond he is still under court control, though the bounds of his confinement are enlarged. His bondsmen are his jailers. ^[51] While the bailsmen may arrest without warrant, the court proceeds under bench warrant to retake a prisoner. Cf. 18 U.S.C. § 3143, 18 U.S.C.A. § 3143.

Although in a civil proceeding for deportation the same branch of government issues and executes the warrant, we think the better practice is to require in those cases also a new warrant.

The judgment of the Court of Appeals in the Zydok case will be vacated and the cause remanded to the District Court for further proceedings in accordance with this opinion, with directions to order the release of the respondent Zydok unless within a reasonable time in the discretion of the court he is rearrested under a new warrant. ^[52]

No. 35 is affirmed; No. 136 is vacated.

Mr. Justice BLACK, dissenting.

Notes

1. Reorganization Plan No. V, 54 Stat. 1238, 5 U.S.C.A. § 133t note.
2. Sec. 19 of an Act to regulate the immigration of aliens to, and the residence of aliens in, the United States, 39 Stat. 889, February 5, 1917, as amended, 8 U.S.C. § 155, 8 U.S.C.A. § 155: '* * * any alien who shall have entered or who shall be found in the United States in violation of this chapter, or in violation of any other law of the United States; * * * shall, upon the warrant of the Attorney General, be taken into custody and deported. * * *'
3. Act of October 16, 1918, 40 Stat. 1012, as amended, 8 U.S.C., 1946 ed., § 137, 8 U.S.C.A. § 137, see note 15 infra:
4. Internal Security Act of 1950, September 23, 1950, § 22, subsection 4(a), amending the Act of October 16, 1918, see 8 U.S.C. § 137: 'Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in section 1(1) or section 1(3) of this Act or * * * a member of any one of the classes of aliens enumerated in section 1(2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.' 8 U.S.C.A. § 137-3.
5. Internal Security Act of 1950, § 23, 8 U.S.C.A. § 156: '* * * Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole. * * *'
6. See § 22(1), Internal Security Act, note 4, supra.
7. See note 5, supra.
8. Before the passage of the Internal Security Act the four petitioners had been arrested and admitted to bail on warrants charging membership in groups advocating the overthrow of the Government by force and violence. In our view of the issues now here, these former happenings are immaterial to our consideration of this writ of certiorari.
9. 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.'
10. 'That section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of Public Law 831, 81st Congress (8 U.S.C.A. § 156) (commonly known as Subversive Activities Control Act of 1950) and section 1 of the Act of October 16, 1918 (8 U.S.C. 137 (8 U.S.C.A. § 137)), as amended, are, and each of them is, unconstitutional and void in that they deprive persons, including petitioner, of liberty and property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States in that they abridge the freedom of persons, including petitioner, of speech, the press and assembly and the right to petition the government for redress of grievances, in violation of the First Amendment to the Constitution of the United States, and in that they purport to authorize indefinite detention of persons, including petitioner, without bond prior to final determination of deportability.'
11. Carlson v. Landon, 9 Cir., 186 F.2d 183, 186; Stevenson v. Landon, 9 Cir., 186 F.2d 190.
12. Id., 186 F.2d 189.
13. 28 U.S.C. § 2248, 28 U.S.C.A. § 2248:
14. Carlson v. Landon, 9 Cir., 187 F.2d 991.
15. Quite properly, we think, no question is raised as to the applicability of the Internal Security Act amendments relating to membership in the Communist Party and allowance of bail, notes 4 and 5, supra, to detention under a warrant based on 8 U.S.C., 1946 ed., § 137(c), 8 U.S.C.A. § 137(c), note 3, supra. Cf. Internal Security Act, 64 Stat. 987, Title I, § 2, 50 U.S.C.A. § 781.
16. 'That the petitioner, while under cross-examination by the Chief Assistant United States Attorney, was a consistently evasive witness and his evasive demeanor in testifying in relation to his communistic activities convinces this Court that he is knowingly and wilfully participating in the Communist movement.'
17. 187 F.2d at page 803:
18. Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146; Fong Yue Ting v. United States, 149 U.S. 698, 707, 13 S.Ct. 1016, 1019, 37 L.Ed. 905; Bugajewitz v. Adams, 228 U.S. 585, 33 S.Ct. 607, 57 L.Ed. 978; Ng Fung Ho v. White, 259 U.S. 276, 280, 42 S.Ct. 492, 493, 66 L.Ed. 938; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255; Eichenlaub v. Shaughnessy, 338 U.S. 521, 528, 70 S.Ct. 329, 332, 94 L.Ed. 307; III Hackworth's Digest of International Law 725 (1942).
19. For example compare Act of December 17, 1943, 57 Stat. 600, with Act of May 6, 1882, 22 Stat. 58.
20. See note 4, supra. The extension of the proscription of residence to aliens believing in the overthrow of Government by force or violence has been progressive, as can be readily observed by following the successive enactments of laws to regulate the residence of aliens since the Act of February 5, 1917, 39 Stat. 874. See 8 U.S.C. §§ 137 and 155, 8 U.S.C.A. §§ 137, 155.
21. '(15) The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence of such world-wide conspiracy and designed to prevent it from accomplishing its purpose in the United States.'
22. I Trotsky, History of the Russian Revolution, 106, 120, 141, 144, 151; Lenin, Collected Works (1930), Vol. XVIII, pp. 279 280; Lenin, The State and Revolution, August, 1917, Foreign Languages Publishing House, Moscow (1949), 28, 30, 33. Translations furnished indicate the same attitude on the part of Stalin. Collected Works, Vol. I, pp. 131-137, 185-205, 241-246; Vol. III, pp. 367-370. And see Leites, The Operational Code of the Politburo (1950), c. xiii, 'Violence.' See also Immigration and Naturalization Systems of the United States, S.Rep.No.1515, 81st Cong., 2d Sess., Senate Committee on the Judiciary, Part 3, Subversives, c. I, B, Alien Control; c. II, C, Deportation of Subversive Aliens.
23. Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979; Schneiderman v. United States, 320 U.S. 118, Mr. Justice Douglas concurring at page 165, 63 S.Ct. 1333, 1355, 87 L.Ed. 1796.
24. Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Ng Fung Ho v. White, 259 U.S. 276, 280, 42 S.Ct. 492, 493, 66 L.Ed. 938.
25. Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549: '(Congress) was, in the exercise of its unquestioned right, only seeking to rid the country of persons who had shown by their career that their continued presence here would not make for the safety or welfare of society.' See also Eichenlaub v. Shaughnessy, 338 U.S. 521, 530, 70 S.Ct. 329, 333, 94 L.Ed. 307. Compare Harisiades v. Shaughnessy, 342 U.S. 580, 72 S.Ct. 512.
26. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, 57 S.Ct. 216, 220, 81 L.Ed. 255.
27. Fong Yue Ting v. United States, 149 U.S. 698, 713-715, 728, 13 S.Ct. 1016, 1022, 1027, 37 L.Ed. 905; Nishimura Ekiu v. United States, 142 U.S. 651, 659, 12 S.Ct. 336, 338, 35 L.Ed. 1146; The Japanese Immigrant Case, 189 U.S. 86, 97, 23 S.Ct. 611, 613, 47 L.Ed. 721; Zakonaite v. Wolf, 226 U.S. 272, 33 S.Ct. 31, 57 L.Ed. 218; Wong Wing v. United States, 163 U.S. 228, 231, 16 S.Ct. 977, 978, 41 L.Ed. 140.
28. Turner v. Williams, 194 U.S. 279, 290-291, 24 S.Ct. 719, 722, 48 L.Ed. 979; Zakonaite v. Wolf, 226 U.S. 272, 275, 33 S.Ct. 31, 32, 57 L.Ed. 218; Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978; Mahler v. Eby, 264 U.S. 32, 44 S.Ct. 283, 68 L.Ed. 549.
29. Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433; Jordan v. De George, 341 U.S. 223, 231, 71 S.Ct. 703, 707, 95 L.Ed. 886.
30. The Japanese Immigrant Case, 189 U.S. 86, 23 S.Ct. 611, 47 L.Ed. 721; Vajtauer v. Commissioner, 273 U.S. 103, 47 S.Ct. 302, 71 L.Ed. 560.
31. The former provision read as follows: '* * * Pending the final disposal of the case of any alien so taken into custody, he may be released under a bond in the penalty of not less than $500 with security approved by the Attorney General, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he shall be found to be unlawfully within the United States.' 8 U.S.C., 1946 ed., § 156, 8 U.S.C.A. § 156.
32. H.R.Rep.No.1192, 81st Cong., 1st Sess., p. 6; S.Rep.No.2239, 81st Cong., 2d Sess., p. 5.
33. 169 F.2d at page 751: 'The discretion of the Attorney General which we held to exist in the Zapp case is interpreted as one which is to be reasonably exercised upon a consideration of such factors, among others, as the probability of the alien being found deportable, the seriousness of the charge against him, if proved, the danger to the public safety of his presence within the community, and the alien's availability for subsequent proceedings if enlarged on bail. However, in any consideration of his denial of bail it should always be borne in mind that the court's opinion as to whether the alien should be admitted to bail can only override that of the Attorney General where the alien makes a clear and convincing showing that the decision against him was without a reasonable foundation.' See U.S. ex rel. Doyle v. District Director, 2 Cir., 169 F.2d 753; U.S. ex rel. Pirinsky v. Shaughnessy, 2 Cir., 177 F.2d 708; U.S. ex rel. De Geronimi v. Shaughnessy, 2 Cir., 187 F.2d 896. (This is the only case from the Second Circuit Court of Appeals since the Internal Security Act. It leaves open the question of the reviewability of the Attorney General's action under that Act.)
34. The proposed bills at one time contained a provision: '(f) No alien detained under any provision of law relating to the exclusion or expulsion of aliens shall, prior to an unreviewable order discharging him from custody, be released by any court, on bond or otherwise, except pursuant to the order of a Federal court composed of three judges.' S.Rep.No.2239, 81st Cong., 2d Sess., p. 3. This was introduced to allow for possible release from custody pending deportation hearings. Id., at p. 9. The clause did not survive.
35. Even though we also take into consideration the factor of probable avalability for trial, which we do not think is of great significance in cases involving security from communist activities of alien communists, the past record of these aliens is far from decisive against the Attorney General's action. The Internal Security Act made membership sufficient for deportation and set up a procedure that could be carried out. § 22(2)(C), note 4, supra, and § 23. Deportation became more likely for alien communists by these amendments.
36. Buttfield v. Stranahan, 192 U.S. 470, 24 S.Ct. 349, 48 L.Ed. 525; Union Bridge Co. v. United States, 204 U.S. 364, 386, 27 S.Ct. 367, 374, 51 L.Ed. 523; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563; Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 248, 79 L.Ed. 446: 'The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply.'
37. Wayman v. Southard, 10 Wheat. 1, 43-48, 6 L.Ed. 253; St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 281, 286, 28 S.Ct. 616, 617, 52 L.Ed. 1061; Intermountain Rate Cases, 234 U.S. 476, 486 489, 34 S.Ct. 986, 991-992, 58 L.Ed. 408; Fahey v. Mallonee, 332 U.S. 245, 249, 67 S.Ct. 1552, 1553, 91 L.Ed. 2030. See Yakus v. United States, 321 U.S. 414, 424-425, 64 S.Ct. 660, 667, 88 L.Ed. 834: 'The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct * * *. These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant data by a designated administrative agency, it directs that its statutory command shall be effective. It is not objection that the determination of facts and the inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.'
38. Any alien becoming a public charge within five years of entry may be subject to deportation. Likewise any alien sentenced more than once for any crime involving moral turpitude, and certain illegal entrants. See 8 U.S.C. § 155, 8 U.S.C.A. § 155.
39. Approximately 85,000,000 people citizens and aliens, are said to have crossed our borders in the 1949 fiscal year. Some many times. , five million aliens are reported to have registered under the Alien Registration Act of 1940, 54 Stat. 670. S.Rep.No.1515, pp. 630-631, supra, n. 22.
40. See for example § 2(15), quoted above at note 21.
41. Attention is called to United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747, 752: 'If the Eighth Amendment to the Constitution is considered to have any bearing upon the right to bail in deportation proceedings, and this has been denied, it is our opinion that the provisions of that Amendment and any requirement of the due process provisions of the Fifth Amendment will be fully satisfied if the standards of fairness and reasonableness we have set forth regarding the exercise of discretion by the Attorney General are observed.'
42. 1 Wm. & Mary Sess. 2, c. II, § I(10).
43. Petersdorff, on Bail, 483 et seq.
44. I Annals of Congress 753.
45. ,1 Stat. 91, § 33; Federal Rules of Criminal Procedure, 46(a), 18 U.S.C.A.
46. See United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 158, 44 S.Ct. 54, 57, 68 L.Ed. 221, and cases there cited; Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549. These cases had valid orders entered subsequent to an invalid arrent.
47. See United States ex rel. Hikkinen v. Gordon, 8 Cir., 190 F.2d 168 19; Doyle v. Russell, 30 Barb., N.Y., 300.
48. People ex rel. Wolfe v. Johnson, 230 N.Y. 256, 130 N.E. 286.
49. Voll v. Steele, 141 Ohio St. 293, 47 N.E.2d 991. Cf. Porter v. Garmony, 148 Ga. 261, 96 S.E. 426. Bail once allowed by a magistrate, pending trial, may not in some instances be refused by a higher court. In re Marshall, 38 Ariz. 424, 300 P. 1011.
50. Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 44, 68 L.Ed. 247.
51. Taylor v. Taintor, 16 Wall. 366, 371, 21 L.Ed. 287.
52. See Dowd v. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215; Mahler v. Eby, 264 U.S. 32, 45, 44 S.C. 283, 288, 68 L.Ed. 549.