Tom C. Clark

“ The construction adopted does enable the Court to by-pass the constitutional questions raised by petitioners. It is true that we avoid decision of constitutional questions 'unless essential to proper disposition of a case.' But as I see it, this rule should never compel a transparently artificial construction of a statute. The Court's interpretation here of § 693h must leave both the President and the Congress in a quandary as to the solution of an important problem involving the security of our country. ”

“ The same type of data is commonly accepted among civilian agencies as relevant to the security screening of its employees. Those agencies also issue discharges in the form of severance papers based upon, and frequently reciting security grounds. Such papers reflect the true condition upon which the discharge is made. It seems incongruous to me that the military services should not be able to do as much. I would not require the Secretary to issue a discharge certificate which on its face falsifies the real grounds for its issuance. ”

“ The lack of any judicial review is evidenced by the fact that for over 70 years Congress itself reviewed military discharges and frequently enacted private bills directing the appropriate Secretary to correct the type of discharge certificate given. By legislation in 1944 and 1946, Congress authorized creation of administrative boards to which it transferred the review of military discharges [2] in an effort to conserve its own time. [3] That legislation makes no provision for judicial review ”