Arthur Goldberg

“ It then answered the ex post facto argument as it had been answered on the floor of Congress, that the offense could as well be in the continued refusal to render service as in the original desertion. The second contention was met with the statement that 'The enactment operates upon an individual offender, punishes him for violation of the Federal law by deprivation of his citizenship of the United States, but it leaves each state to determine for itself whether such an individual may be a voter. It does no more than increase the penalties of the law upon the commission of crime.' Id., at 116. ”

“ Justice Brennan conceded that it is 'paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war,' 356 U.S., at 105, 78 S.Ct., at 600. ”

“ Senator Johnson of Maryland attempted to allay Senator Morrill's concern by explaining that
'the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on those who have deserted and who shall not return within sixty days. The crime for which the punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return within sixty days. It is clearly within the power of Congress.' Ibid. ”

“ Since the substantial benefits of American citizenship only come into play upon return to face prosecution, the draft evader who wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within constitutional limits Congress has the power to define. This is what Mendoza-Martinez did, what Cort says he is willing to do, and what others have done. [41] Thus our holding today does not frustrate the effective handling of the problem of draft evaders who leave the United States. ”

“ Senator Russell, who was manager of the bill as well as Chairman of the Senate Immigration Committee, explained it in similar terms:
'Certainly those who, having enjoyed the advantages of living in the United States, were unwilling to serve their country or subject themselves to the Selective Service Act, should be penalized in some measure. * * * Any American citizen who is convicted of violating the Selective Service Act loses his citizenship. ”

“ The powers of Congress to require military service for the common defense are broad and far-reaching, [12] for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. ”

“ The Selective Training and Service Act of 1940 applies only to citizens and resident aliens. Both the indictment and the judgment spoke in terms of his having remained the Mexico for the entire period from November 15, 1942, until November 1, 1946, when he returned to this country. [7] For the period from September 27, 1944, when § 401 (j) became effective, until November 1, 1946, he could not have been in violation of our draft laws unless he remained a citizen of the United States, since the draft laws do not apply to nonresident aliens. ”

“ The rights guaranteed by the Fifth and Sixth Amendments are 'preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service.' Id., at 123. [19] ' (I) f society is disturbed by civil commotion-if the passions of men are aroused and the restraints of law weakened, if not disregarded-these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. ”

“ In the House, the motion of New York's Representative Townsend to strike the section as a 'despotic measure' which would 'have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges,' was met by the argument of Representative Schenck of Ohio, the Chairman of the Military Committee, that 'Here is a penalty that is lawful, wise, proper, and that should be added to the other lawful penalties that now exist against deserters.' Id., at 1155. ”

“ The legislative history of that amendment is also instructive for our present inquiry. The discussion in both Houses had reference only to the penalties as operative on deserters, no doubt because there was no peacetime draft to evade, but since the 1865 statute dealt without distinction with both desertion and leaving the jurisdiction to evade, there is no reason to suppose the discussion quoted below to be any less applicable to the latter type of misconduct. ”

“ It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained. ”

“ However, in connection with the provision governing loss of citizenship for desertion, which was enacted as § 401 (g) and declared unconstitutional in Trop v. Dulles, supra, the President's committee of advisers reported that the provisions of the 1865 Act had been 'distinctly penal in character,' and concluded that 'They must, therefore, be construed strictly, and the penalties take effect only upon conviction by a court martial.' [34] Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. ”

“ On September 24, 1958, the District Court announced its new decision, also unreported, that in light of Trop § 401 (j) is unconstitutional because not based on any 'rational nexus * * * between the content of a specific power in Congress and the action of Congress in carrying that power into execution.' On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey v. Mendoza-Martinez, 359 U.S. 933, 79 S.Ct. ”

“ Indeed, in Trop The Chief Justice observed that 'Section 401 (j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed * * *,' 356 U.S., at 94, 78 S.Ct., at 594, and Justice Frankfurter in dissent alluded to the due process overtones of the requirement in § 401 (g) of prior conviction for desertion by court-martial, id., at 116-117, 78 S.Ct., at 606. ”

“ No language appears charging the elements of violation-knowledge and purpose to evade in connection with it. The only crime charged is what happened 'on or about November 15, 1942,' and conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that date, [9] in nowise estopped the Government with reference to his status after September 27, 1944. ”

“ Pursuant to Cort's demand, a three-judge court was convened. The court held that he had remained outside the United States to evade military service, but that § 349 (a) (10) is unconstitutional because 'We perceive no substantial difference between the constitutional issue in the Trop case and the one facing us.' It therefore concluded that Cort is a citizen of this country and enjoined the Secretary of State from withholding a passport from Cort on the ground that he is not a citizen and from otherwise interfering with his rights of citizenship. Cort v. ”

“ In reporting the bill out of the Committee on Naval Affairs, Representative Roberts of Massachusetts, its author, stated that 'the bill now under consideration is intended to remove one of the harshest penalties that can be imposed upon a man for an offense, to wit, the loss of rights to citizenship. ”

“ Though not determinative, it supports our holding to note that forfeiture of citizenship and the related devices of banishment and exile have throughout history been used as punishment. In ancient Rome, 'There were many ways in which a man might loss his freedom, and with his freedom he necessarily lost his citizenship also. ”

“ We conclude, for the reasons stated, that §§ 401 (j) and 349 (a) (10) are punitive and as such cannot constitutionally stand, lacking as they do the procedural safeguards which the Constitution commands. [43] We recognize that draft evasion, particularly in time of war, is a heinous offense, and should and can be properly punished. ”

“ There are in the United States to-day thousands of men who are literally men without a country and their numbers will be constantly added to until the drastic civil-war measure which adds this heavy penalty to an already severe punishment imposed by military law, is repealed.' H.R.Rep.No.335, supra, at 2. ”

“ The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him, [15] or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship. [16]
The basic principles here involved, the gravity of the issue, and the arguments bearing upon Congress' power to forfeit citizenship were considered by the Court in relation to different provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years ago: Perez v. ”

“ White, 259 U.S. 276, 284-285, 42 S.Ct. 492, 495, 66 L.Ed. 938, whenever a citizen departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Conviction for draft evasion, as Cort's case illustrates, is not prerequisite to the operation of this sanction. [21] Independently of prosecution, forfeiture of citizenship attaches when the statutory set of facts develops. It is argued that the availability after the fact of administrative and judicial proceedings, including the machinery the Court approved last Term in Rusk v. ”

“ Another example is the recent voluntary return of Edward M. Gilbert to face trial on charges for which he could not be extradited. N.Y. Times, Oct. 27, 1962, p. 1, col. 1; Oct. 30, 1962, p. 1, col. 2.↑ Moreover, the problem is, relatively, extremely small. Over 16,000,000 men served in our armed forces during World War II, and nearly 6,000,000 more served during the Korean crisis. The World Almanac (1963) , 735. Yet between the time of the enactment of § 401 (j) and June 30, 1961, only about 1,750 persons were denationalized for leaving the country to avoid the draft. ”

“ Thus, basing decision as we do on the unmistakable penal intent underlying the statutes presently at issue, nothing in our holding is inconsistent with these other cases, and there is no occasion for us to pass upon any question of the power of Congress to act as it did in the statutes involved in those cases. See note 43, infra.↑ The acts of Mendoza-Martinez and Cort would have been covered by this statute as well as by §§ 401 (j) and 349 (a) (10) .↑ See p. ”