William J. Brennan, Jr.

“ Congress has the resources and the power to inform itself, and is the appropriate forum where the conflicting pros and cons should have been presented and considered. But instead of a determination by Congress reflected in guiding standards of the types of facilities to which § 5 (a) (1) (D) should be applied, the statute provides for a resolution by the Secretary of Defense acting on his own accord. It is true that the Secretary presumably has at his disposal the information and expertise necessary to make reasoned judgments on which facilities are important to national security. ”

“ The justification urged for punishing him is that Congress may properly conclude that members of the Communist Party, even though nominal or inactive members and believing only in change through lawful means, are more likely than other citizens to engage in acts of espionage and sabotage harmful to our national security. ”

“ The need for a legislative judgment is especially acute here, since it is imperative when liberty and the exercise of fundamental freedoms are involved that constitutional rights not be unduly infringed. ”

“ The third finding-that the shipyard is a 'defense facility'-was made by the Secretary of Defense. The fourth finding refers to the notice requirement which is no more than a presumption from the posting required of the employer by § 5 (b) . Thus the only issue which a defendant can effectively contest is whether he is a Communist Party member. ”

“ Although the form of notice provided for in § 5 (b) affords affected persons reasonable opportunity to conform their behavior to avoid punishment, it is not enough that persons engaged in arguably protected activity be reasonably well advised that their actions are subject to regulation. Persons so engaged must not be compelled to conform their behavior to commands, no matter how unambiguous, from delegated agents whose authority to issue the commands is unclear. ”

“ But in areas of protected freedoms, regulation based upon mere association and not upon proof of misconduct or even of intention to act unlawfully, must at least be accompanied by standards or procedural protections sufficient to sefeguard against indiscriminate application. 'If * * * 'liberty' is to be regulated, it must be pursuant to the law-making functions of the Congress * * * (a) nd if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.' Kent v. ”

“ Instead, Congress left the Secretary completely at large in determining the relevance and weight to be accorded such factors as the importance and secrecy of the facility and of the work being done there, and the indispensability of the facility's service or product to the national security.
Congress ordinarily may delegate power under broad standards. ”

“ Delegation of power under general directives is an inevitable consequence of our complex society, with its myriad, ever changing, highly technical problems. 'The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality * * * to perform its function * * *.' Panama Refining Co. ”

“ The problems presented by the employment of Party members at defense facilities, moreover, may well involve greater hazards to national security than those created by allowing Party members to travel abroad. We may assume, too, that Congress may have been justified in its conclusion that alternatives to § 5 (a) (1) (D) were inadequate. [3] For these reasons, I am not persuaded to the Court's view that overbreadth is fatal to this statute, as I agreed it was in other contexts ”

“ The Act 'requires the registration only of organizations which * * * are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to advance certain objectives. This finding must be made after full administrative hearing, subject to judicial review which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence.' Communist Party of U.S. v. ”

“ Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people. ' (S) tandards of permissible statutory vagueness are strict * * *' in protected areas. ”

“ That right is therefore also included among the ' (i) ndividual liberties fundamental to American institutions (which) are not to be destroyed under pretext of preserving those institutions, even from the gravest external dangers.' Communist Party of U.S. v. Subversive Activities Control Board, 367 U.S. 1, 96, 81 S.Ct. 1357, 1410, 6 L.Ed.2d 625. Since employment opportunities are denied by § 5 (a) (1) (D) simply on the basis of political associations the statute also has the potential of curtailing free expression by inhibiting persons from establishing or retaining such associations. ”