William J. Brennan, Jr.

“ It is that whereas the Government is under an obligation to seek the return of the fugitive as long as he remains a citizen, by terminating citizenship 'Congress has eliminated at the outset any further claim that this country would have to the services of these individuals, and has removed all basis for further demands upon them * * *.' This simply is not so. Expatriation may have no effect on a continuing military-service obligation. [7] And it is incontrovertible that the power to punish the initial draft-evasion offense continues although citizenship has meanwhile become forfeit. ”

“ It simply is not true that expatriation provides an instrumentality specially necessary for imposing the congressional will upon fugitive draft evaders. Our statutes now provide severe criminal sanctions for the behavior in question. The fugitive can return only at the cost of suffering these punishments; the only way to avoid them is to remain away. As to any draft delinquent for whom the prospect of this dilemma would not itself pose a recognizable, formidable deterrent, I fail to see how the addition of expatriation could enhance the effect at all. ”

“ Indeed, it is only the significance of expatriation as retribution which could render it effective to boost morale-the purpose which, to the dissent, removes expatriation as here used from the realm of the punitive. I do not perceive how expatriation so employed would differ analytically from the stocks or the rack. Because such devices may be calculated to shore up the convictions of the law-abiding by demonstrating that the wicked will not go unscathed, they would not, by the dissent's view, be punitive or, presumably, reachable by the Eighth Amendment. ”

“ If the difference lies in the quality of the act of draft evasion, then we are back once again to punishment.
The appellants assert that ' (a) government which cannot exert force to compel a citizen to perform his Lawful (Government's emphasis) duty is, to that extent, not sovereign as to him.' The apparent corollary is that congressionally imposed expatriation is, under such circumstances, in effect declaratory of a change in status which has already occurred. But the Government is far from conceding its lack of authority over a fugitive draft evader. ”

“ Nor can expatriation affect the fugitive who will not return to be punished-for whom it is thought to be specially designed. For that individual has, ex hypothesi, determined on his own to stay away and so cannot be affected by the withdrawal of his right to return. The sting of the measure is felt only by those like Mendoza-Martinez, who have already returned and been punished, and those like Cort, who desire to return and be punished-those, in other words, as to whom expatriation is patently cumulative with other sanctions. ”

“ For the Court has never held that expatriation was to be found in Congress' arsenal of common sanctions, available for no higher purpose than to curb undesirable conduct, to exact retribution for it, and to stigmatize it. ”

“ But, contend the appellants, § 401 (j) is designed to prevent embroilments as well as embarrassments. During wartime, it is argued, our Government would very likely feel impelled to demand of foreign havens the return of our fugitive draft evaders; and such a demand might seriously offend a 'host' country, leading to embroilment. The transparent weakness of this argument-its manifest inconsistency-must be immediately apparent. Surely the United States need not disable itself from making injudicious demands in order to restrain itself from doing so. ”

“ There really is no way to distinguish between the several failures of a citizen's duty I have just enumerated, or to explain why evasion of military service should be visited with this specially harsh consequence, except to recognize that the latter defection is palpably more provocative than the others. ”

“ We have recognized that participation by American nationals in the internal politics of foreign states could dangerously prejudice our diplomacy, and have allowed the use of expatriation as a uniquely potent corrective which precludes recriminations by disowning, at the moment of his provocative act, him who might otherwise be taken as our spokesman or our operative. ”

“ We held that statute unconstitutional. Three of my Brethren joined in the opinion of The Chief Justice, who analyzed the case in terms equally applicable to the cases at bar. That plurality opinion in Trop noted that the congressional power to which expatriation under § 401 (g) was said to be relevant was the 'war power.' It concluded that expatriation under § 401 (g) could have no value in furtherance of the war power except as a sanction, to deter or punish desertion; that expatriation so employed was 'punishment' within the meaning of the Eighth Amendment ”

“ To say that prospect (1) will not deter is simply to reject our entire criminal justice as fruitless so far as deterrence is an object. To say that prospect (2) will not deter is simply to concede that expatriation will not deter, either-except on the strained assumption that withdrawal of diplomatic protection can work the difference.↑ As the Government forcefully argues on the collateral estoppel point in Mendoza-Martinez, the selective service requirements apply to resident aliens as well as to citizens. Section 401 (j) , as discussed in Congress and by the appellants and in Mr. ”

“ The evidence shows convincingly that Cort's purpose in remaining abroad, first in England and then in Czechoslovakia, was to avoid the draft.↑ A presumption that one is remaining abroad with a purpose of avoiding military service, arising from continued sojourn abroad in the face of an uncontroverted call to military duty, certainly bears no resemblance whatever to the presumption found wanting in Tot. ”