Exclusion Bill

“ A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house, with the greatest indignation. Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. ”

“ The Court went on to say that the federal exclusionary rule was not 'derived from the explicit requirements of the Fourth Amendment * * *. The decision was a matter of judicial implication.' At 28, 69 S.Ct. at 1361. Since 'we find that in fact most of the English-speaking world does not regard as vital to such protection the exclusion of evidence thus obtained, we must hesitate to treat this remedy as an essential ingredient of the right.' [16] At 29, 69 S.Ct. ”

“ My lords, I am very dubious as to the amount of security afforded through the means of a system of exclusion from office, to be carried into effect by a law which it is necessary to suspend by an annual act, that admits every man into office whom it was the intention of the original framers of the law to exclude. It is perfectly true it was not the intention of those who brought in that suspension law originally, that dissenters from the church of England should be permitted to enter into corporations under its provisions. ”

“ Narrowing the exclusionary rule in this manner, therefore, would significantly undermine the rule's ability "to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it." ”

“ In such a case the limitation upon the power operates not only to fordid the exclusion, as the result of the expressed enactment of an unconstitutional condition, but also, in the nature of things, prohibits the absolute exclusion, although the reason for the attempted exertion of such a power be not given. ”

“ The true principles of our Political System, the history of the National Convention, the natural interpretation of the Convention, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Nation has no power to grasp. ”

“ If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case the concerned house is in effect a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality.' 81 Harv.L.Rev., at 679. ”

“ Might they not even bring the trial of this restriction within the ten miles square, when there is no prohibition against it? Might they not thus destroy the trial by jury? Would they not extend their implication? It appears to me that they may and will. And shall the support of our rights depend on the bounty of men whose interest it may be to oppress us? That Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. ”

“ The statute is directed against parties who have offended in any of the particulars embraced by these clauses. And its object is to exclude them from the profession of the law, or at least from its practice in the courts of the United States. As the oath prescribed cannot be taken by these parties, the act, as against them, operates as a legislative decree of perpetual exclusion. And exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct. ”

“ It is clear, then, that the ordinary law fails, and that the Government have a case for the demand they make for an extension of the present powers of the law.
I do not say the present Bill will certainly be effective, but it is the less to be opposed because it does not greatly exceed or infringe the ordinary law; and it is the duty of the Legislature, when called upon to strengthen the Executive, to do so by the smallest possible infringement of the law and the constitution. ”

“ I speak in the presence of enlightened constitutional lawyers and statesmen, and I do not fear a contradiction when I assert that the doctrine of exclusion is not to be found in the principles, or in the analogies of our Constitution, or in the history of our country, or in the opinion of any statesman whose name or memory has reached us. ”

“ In plain terms, the Senate may pronounce the stigma of expulsion, but not the judgment of exclusion. A similar absurdity would be to say, that in private life an offence would justify kicking an intruder down stairs, but would not justify refusing him admission to our house. It is enough to state this case. Nothing can be clearer in the light of reason—and I say also of the Constitution—than that it is the duty of the Senate to meet disloyalty on the threshold,—to say to it, wherever it first shows itself, that this Chamber [Pg 220] is no place for it. ”

“ Mellon, 262 U.S. 447, 43 S.C.t. 597, 67 L. Ed. 1078, the court recognized and gave effect to the reasoning and principle of those cases by dismissing a bill brought by the commonwealth of Massachusetts to restrain executive officers from giving effect to an act of Congress alleged to be an unconstitutional usurpation of power, but not shown to affect prejudicially any proprietary or other right of the state subject to judicial cognizance. ”

“ 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. ”

“ The best available evidence, the writings of the architects of our constitutional system, indicates that the Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply-trial by legislature.
The Constitution divides the National Government into three branches-Legislative, Executive and Judicial. ”

“ There are sufficient guards placed against sedition and licentiousness; for, when power is given to this government to suppress these, or for any other purpose, the language it assumes is clear, express, and unequivocal; but when this Constitution speaks of privileges, there is an ambiguity, sir, a fatal ambiguity—an ambiguity which is very astonishing. In the clause under consideration, there is the strangest language that I can conceive. I mean, when it says that there shall not be more representatives than one for every thirty thousand. Now, sir, how easy is it to evade this privilege! ”

“ The wisdom of the act of Congress of 1790 in fixing a date after which the States could not make allowances of claims which should bind the United States is apparent; and nothing could be more just or honorable than that Congress, when appealed to for a relaxation of this salutary general rule of exclusion in favor of the private citizen who had a meritorious case, should grant relief. It seems clear to us, that, in the act of 1872, Congress did mean to remove this bar of the lapse of time, and to authorize the Court of Claims, if they found the claim to be a just one, to settle and allow it. ”

“ Hence, too, all the ramparts for protecting the rights of the people,—such as their Magna Charta, their bill of rights, &c.,—are not reared against the Parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpation. ”

“ Finally, it is significant that the opponents of the Act, exhausting ingenuity to discover constitutional objections to every provision of it, also construed § 1 as addressed only to conduct authorized by state law, and therefore within the admitted permissible reach of Fourteenth Amendment federal power. 'The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States,' one such opponent paraphrased the provision. ”

“ I hold, therefore, that there is nothing in the adoption of a State constitution, that gives any consent to the removal of the restriction imposed by the ordinance on the power of congress. It is admitted by all who hold that the ordinance has ever been in force at all, since the adoption of the Federal constitution, that it limited the powers of congress, while the people were under the territorial government. Suppose, then, the people adopt a State constitution, re-enacting the provisions of the ordinance. ”

“ But, sir, there is another answer, in my judgment, more conclusive, to all these objections to this second section, which is the vital part of the bill. Without it, it would scarcely be worth the paper on which the bill is written. A law without a penalty, without a sanction, is of little value to any body. What good does it do for the Legislature to say, 'Do this, and forbear to do that,' if no consequence is to follow the act of disobedience? ”

“ If Congress may be said to have ratified the Internal Revenue Service's interpretation without passing new legislation, Congress may also be said to approve a suspension of deportation by the Attorney General when it fails to exercise its veto authority. [24] The requirements of Art. I are not compromised by the congressional scheme.
IV The Court of Appeals struck § 244 (c) (2) as violative of the constitutional principle of separation of powers. It is true that the purpose of separating the authority of Government is to prevent unnecessary and dangerous concentration of power in one branch. ”

“ He urges Congress to a counter-policy, and is answered only by a condolence on the general misfortune. He is immediately struck with the conviction that, until exclusion shall be opposed to exclusion, and restriction to restriction, the American flag will be disgraced; for who can conceive that thirteen legislatures, viewing commerce under different points of view, and fancying themselves discharged from every obligation to concede the smallest of their commercial advantages for the benefit of the whole, will be wrought into a concert of action, and defiance of every prejudice? ”

“ The Force Act gives the district courts jurisdiction over 'any civil action to recover possession of any office * * * wherein it appears that the sole question * * * arises out of denial of the right to vote * * * on account of race, color or previous condition of servitude.' However, the Act specifically excludes suits concerning the office of Congressman. Respondents maintain that this exclusion demonstrates Congress' intention to prohibit federal courts from entertaining suits regarding the seating of Congressmen. ”

“ A fifth ill effect of the exclusion would be, that it would operate as a constitutional interdiction of stability in the administration. By necessitating a change of men, in the first office of the nation, it would necessitate a mutability of measures. It is not generally to be expected, that men will vary and measures remain uniform. ”

“ If the exceptions are stricken out, there is nothing to be assessed and collected except what congress has otherwise affirmatively ore red. Nothing less can have the force of law. This court is impotent to pass any law on the subject. It has no legislative power. I am unable, therefore, to see how we can, by declaring an exemption or exception invalid, thereby give effect to provisions as though they were never exempted. ”

“ Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. ”

“ Such legislation would be concurrent in fact and in law, and could be enforced by the courts and officers of either the nation or the state, thereby insuring a more general and satisfactory observance of it than could possibly be obtained by the federal authorities alone. It would, to a great extent, relieve Congress of the burden and the general government of the odium to be derived from the antagonism which would certainly spring from enforcing within states federal laws which must touch the daily life of the people very intimately and often very irritatingly. ”

“ But no unanimity of politicians can uphold the baseless assumption, that a law, or any conglomerate of laws, under the name of Compromise, or howsoever called, is final. Nothing can be plainer than this; that, by no parliamentary device or knot, can say Legislature tie the hands of a succeeding Legislature, so as to prevent the full exercise of its constitutional powers. Each legislature, under a just sense of its responsibility, must judge for itself ”