Robert H. Jackson

“ Experience in the Executive Department with the immigration laws made me aware of a serious weakness in the deportation program which Congress by this Act was trying to overcome. A deportation policy can be successful only to the extent that some other state is willing to receive those we expel. But, except selected individuals who can do us more harm abroad than here, what Communist power will cooperate with our deportation policy by receiving our expelled Communist aliens? ”

“ We must not forget that while the alien is not constitutionally protected against deportation by administrative process he stands on an equal constitutional footing with the citizen when he is charged with crime. [4] If Congress can subdivide a charge against an alien and avoid jury trial by submitting the vital and controversial part of it to administrative decision, it can do so in the prosecution of a citizen. ”

“ Having thus dispensed with important constitutional safeguards in obtaining an administrative adjudication that the alien is guilty of conduct making him deportable on the ground it is only a civil proceeding, the Government seeks to turn around and use the result as a conclusive determination of that fact in a criminal proceeding. ”

“ While we would not join in a strained construction of the Constitution to create captious or trivial obstacles or delays to solution of this problem, we cannot sanction sending aliens to prison except upon compliance with constitutional procedures. We can afford no liberties with liberty itself.
The Court intimates that it might be compelled to agree with this constitutional objection to the statute were the reasoning advanced by counsel. ”

“ It must be remembered that the deportation proceeding is an exercise of adjudicative, not rule-making, power. The issue on which evidence is heard is whether the alien has committed acts which are grounds for deportation. ”

“ And what non-Communist power feels such confidence in its own domestic security that it can risk taking in persons this stable and powerful Republic finds dangerous to its security? World conditions seem to frustrate the policy of deportation of subversives. ”

“ We can afford no liberties with liberty itself. ”

“ It provided that any Chinese person or person of Chinese descent adjudged by any justice, judge or commissioner of the United States not lawfully entitled to be or to remain in the United States should first be imprisoned at hard labor and thereafter removed from the United States. The Court conceded that it would be competent for Congress to declare that an alien remaining unlawfully in the United States could be criminally punished 'if such offense were to be established by a judicial trial.' 163 U.S. at page 235, 16 S.Ct. ”