Oliver Wendell Holmes, Jr.

“ So it appears that this court discharged from the custody of the immigration officers a person of Chinese descent on the ground that he was a citizen of the United States, doing this upon the concession of the government that, if he was a citizen, the exclusion acts had no application to him; that Congress in terms makes the decision of the immigration officer final only when the party is an alien, and that the rules prescribed by the proper department exclude from the operation of the law citizens of the United States of Chinese descent. ”

“ I do not see how any one can read those rules and hold that they constitute due process of law for the arrest and deportation of a citizen of the United States. If they do in proceedings by the United States, they will also in proceedings instituted by a state, and an obnoxious class may be put beyond the protection of the Constitution by ministerial officers of a state, proceeding in strict accord with exactly similar rules. ”

“ It will be borne in mind that the petitioner has been judicially determined to be a free-born American citizen, and the contention of the government, sustained by the judgment of this court, is that a citizen, guilty of no crime-for it is no crime for a citizen to come back to his native land-must, by the action of a ministerial officer, be punished by deportation and banishment, without trial by jury and without judicial examination. ”

“ We assume in what we have to say, as the questions assume that no abuse of authority of any kind is alleged. That being out of the case, the first of them is answered by the case of United States v. Sing Tuck, 194 U.S. 161, 170, 48 L. ed. 917, 921, 24 Sup. Ct. Rep. 621: 'A petition for habeas corpus ought not to be entertained unless the court is satisfied that the petitioner can make out at least a prima facie case.' This petition should have been denied on this ground, irrespective of what more we have to say, because it alleged nothing except citizenship. ”

“ But questions of fact upon which its jurisdiction rests are never so regarded. Thus, whether a tract of public land be swamp, mineral, or agricultural, may be finally determined by the Department; but whether a tract is public land is not so determined, and in all the multitude of cases that have been presented to this court it has never even been suggested that a ruling of the Department that a tract was public land was conclusive unless it appeared that the Land Department was guilty of some abuse of its discretion or powers. ”

“ If, for the purpose of argument, we assume that the 5th Amendment applies to him, and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of opinion that with regard to him due process of law does not require judicial trial. That is the result of the cases which we have cited, and the almost necessary result of the power of Congress to pass exclusion laws. That the decision may be intrusted to an executive officer, and that his decision is due process of law, was affirmed and explained in Nishimura Ekiu v. ”

“ Every Chinese person refused admission under the provisions of the exclusion laws by the decision of the officer in charge at the port of entry must, if he shall elect to take an appeal to the Secretary, give written notice thereof to said officer within two days after such decision is rendered. ”

“ But the relevant portion being a single section, accomplishing all its results by the same general words, must be valid as to all that it embraces, or altogether void. An exception of a class constitutionally exempted cannot be read into those general words merely for the purpose of saving what remains. ”