xt7msb3wtd0h_61 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Mascitti, Harisiades and Coleman v. McGrath - nos. 43, 206, 264 text Mascitti, Harisiades and Coleman v. McGrath - nos. 43, 206, 264 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_225/Folder_7/Multipage7740.pdf 1951 1951 1951 section false xt7msb3wtd0h_61 xt7msb3wtd0h February 29. 1952.

Dear Bob:

Re?"’"Nd‘s". 43"‘- Harisiades if". Shdfififfiicasy
206 ~ Mascitti v. McGrath
264 ~ Coleman v. McGrath


I agree.

Mr. Justice Jackson


 plated: w. . ,


Nos. 43, 206 AND 264.—OCTOBER TERM, 1951.

Peter Harisiades, Petitioner,

43 v.

Edward J. Shaughnessy, District
Director of Immigration and
Naturalization of the Port of
New York.

Luigi Mascitti, Appellant,
206 v. '
J. Howard McGrath, Attorney

General of the United States.

On Writ of Certiorari
to the United States
Court of Appeals for
the Second Circuit.

Appeal from the United
States District Court
for the District of

Dora Coleman, Appellant,

264 7).

J. Howard McGrath, Attorney
General of the United States
and A. R. Maekey, Acting
Commissioner of Immigration
and Naturalization.

[March —, 1952.]

Appeal from the United
States District Court
for the District of



MR. JUSTICE JACKSON delivered the opinion of the

The ultimate question in these three cases is whether
the United States constitutionally may deport a legally
resident alien because of membership in the Communist
Party which terminated before enactment of the Alien
Registration Act of 1940.1

Harisiades. a Greek national, accompanied his father
to the United States in 1916. when thirteen years of age,
and has resided here since. He has taken a Wife and sired

1 54 Stat. (370, S U. S. C. §137.


 43, 206 & 264

two children, all citizens. He joined the Communist
Party in 1925, when it was known as the Workers’ Party,
and served as an organizer, Branch Executive Committee-
man, secretary of its Greek Bureau, and editor of its paper
“Empros.” The party discontinued his membership,
along with that of other aliens, in 1939, but he has con—
tinued association with members. He was familiar with
the principles and philosophy of the Communist Party
and says he still believes in them. He disclaims personal
belief in use of force and violence and asserts that the
party favored their use only in defense. A warrant for
his deportation because of his membership was issued in
1939 but was not served until 1946. The delay was due
to inability to locate him because of his use of a number
of aliases. After hearings, he was ordered deported on
the grounds that after entry he had been a member of an
organization which advocates overthrow of the Govern—
ment by force and violence and distributes printed matter
so advocating. He sought release by habeas corpus,
which was denied by the District Court.2 The Court of
Appeals for the Second Circuit affirmed.8 ,

Mascitti. citizen of Italy, came to this country in 1920,
at the age of sixteen. He married a resident alien and
has one American-born child. He was a member of the
Young Workers Party, the Workers’ Party and the Com-
munist Party between 1923 and 1929. His testimony
was that he knew the Party advocated a proletarian dic—
tatorship, to be established by force and violence if the
capitalist class resisted. He heard some speakers advo-
cate violence, in which he says he did not personally be-
lieve, and he was not clear as to the party policy. He
resigned in 1929, apparently because he lost sympathy
with or interest in the party. A warrant for his deporta-

'-’90 F. Supp. 397.
3187 F. 2d 137.


 43, 206 & 264

tion issued and was served in 1946. After the usual ad—
ministrative hearings he was ordered deported on the same
grounds as Harisiades. He sought relief by declaratory
judgment, which was denied without opinion by a three-
judge District Court of the District of Columbia. His.
case comes to this Court by direct appeal.

Mrs. Coleman, native of Russia, was admitted to the
United States in 1914, when thirteen years of age. She
married an American citizen and has three children, citi-
zens by birth. She admits being a member of the Com-
munist Party for about a year, beginning in 1919, and
again from 1928 to 1930, and again from 1936 to 1937 or
1938. She held no office and her activities were not sig-
nificant. She disavowed much knowledge of party prin-
ciples and program, claiming she joined each time because
of some injustice the party was then fighting. The rea-
sons she gives for leaving the party are her health and
the party's discontinuance of alien memberships. She
has been ordered deported because after entry she became
a member of an organization advocating overthrow of the
Government by force and violence. She sought an in—
junction on constitutional grounds, among others. Relief
was denied. without opinion, by a three—judge District
Court of the District of Columbia and her case also comes
here by direct appeal.

Validity of the hearing procedures are questioned for
noncompliance with the Administrative Procedure Act,
which we think is here inapplicable.4 Admittedly, each

"Petitioner llarisiades and appellant Coleman contend that the
proeemlings against them must be nullified for failure to conform to the
requirements of the, Administrative Procedure Act, (30 Stat. 237, 5
U. S. (f. § 1001 at seq. I’lowever, §13 of the Act, ('30 Stat. 244, 5
U. S. (,7. § 101 l, provides that “. . . no procedural requirement: shall
be mainlatory as to any agency proceeding initiated prior to the
effective date of such requirement.” The proceedings against llarisi—
aides and Coleman were instituted before the effective date of the


 43, 206 & 264

of these deportations is authorized and required by the
letter, spirit and intention of the statute. But the Act
is assailed on three grounds: (1) that it deprives the aliens
of liberty without due process of law in violation of the
Fifth Amendment; (2) that it abridges their freedoms of
speech and assembly in contravention of the First Amend-
ment; and, (3) that it is an era post facto law which Con—
gress is forbidden to pass by Art. I, §9, cl. 3 of the

We have in each case a finding, approved by the court
below, that the Communist Party during the period of
the aliens membership taught and advocated overthrow
of the Government of the United States by force and
violence. Those findings are not questioned here.


These aliens ask us to forbid their expulsion by a de—
parture from the long accepted application to such cases
of the Fifth Amendment provision that no person shall
be deprived of life, liberty or property without due proc—
ess of law. Their basic contention is that admission for
permanent residence confers a “vested right” on the alien,
equal to that of the citizen, to remain Within the country,
and that the alien is entitled to constitutional protection
in that matter to the same extent as the citizen. Their
second line of defense is that if any power to deport dom-
iciled aliens exists it is so dispersed that the judiciary
must concur in the grounds for its exercise to the extent
of finding them reasonable. The argument goes on to
the contention that the grounds prescribed by the Act

Act. llarisiades also contends that, the Administrative Procedure Act
aside, he was denied 1't1‘ocen‘tut‘al due process in tltat in his 1946—19th
hearings the saint: individual acted both as presiding otlicer and
examining otlicer. llmvever, it appears that the otlicer here per-
lotmwl ltttill functions with llat'isialles' consent. He, therefore, has
no standing to raise the objection now.


 43, 206 it 264

of 1940 bear no reasonable relation to protection of legit-
imate interests of the United States and concludes that
the Act should be declared invalid. Admittedly these
propositions are not founded in precedents of this Court.

Each of these aliens for over thirty years has enjoyed
such advantages as accrue from residence here without
renouncing his foreign allegiance or formally acknowl—
edging adherence to the Constitution he now invokes.
Each was admitted, upon passing formidable exclusionary
hurdles, in the hope that, after what may be called a pro-
bationary period, he would desire and be found desirable
for citizenship. Each was offered naturalization, with all
of the rights and privileges of citizenship, conditioned
only upon open and honest assumption of undivided
allegiance to our government.” But acceptance was and
is not compulsory. Each has been permitted to prolong
his original nationality indefinitely.

So long as one thus perpetuates a dual status as an
American inhabitant but foreign citizen, he may derive
advantages from two sources of law—American and inter—
national. He may claim protection against our Govern-
ment‘ unavailable to the citizen. As an alien he retains a
claim upon the state of his citizenship to diplomatic in-
tervention on his behalf, a patronage often of considerable
value. The state of origin of each of these aliens could
presently enter diplomatic reinonstrance against these
(leportations if they were inconsistent with international
law. the prevailing custom among nations or their own

The alien retains immunities from burdens which the
citizen must shoulder. By withholding his allegiance

5-H) Stat. MS. as amended, S U. S. (7. §73‘

2 (a) (1:3), (10), (17),
(1M. t 11)): HI Stat. 132, as ammded, S [7. S. C. §735. But a cer-
tificate of naturalization is subject to revocation on the ground of
fraud or other illegality in the procurement. 54 Stat. 1158, S [.18. C.
§73EM Knot/tr \’, (‘nh‘u/ Sit/Zia. 5725' l'. S. 0.3L


 43, 206 a 264


from the United States, he leaves outstanding a foreign
call on his loyalties which international law not only
permits our Government to recognize but commands it to
respect. In deference to it certain dispensations from con-
scription for any military service have been granted for-
eign nationals.6 They can not, consistently with our
international commitments, be compelled “to take part in
the operations of war directed against their own coun—
try.” 7 In addition to such general immunities they may

enjoy particular treaty privileges.8

Under our law, the alien in several respects stands on
an equal footing with citizens,9 but in others has never
been conceded legal parity with the citizen.10 Most im—

6 § 2 of the Selective Draft Act of 1917, 40 Stat. 76, as amended,
50 U. S. C. App. §202; §3 of the Selective Training and Service
Act of 1940, 54 Stat. 885, as amended, 50 U. S. C. App. §303;
§ 4 (a) of the Selective Service Act of 1948, 62 Stat. 604, as amended,
50 U. S. C. App. §45~l (a).

7Article 23, 1907 Hague Convention, Respecting the Laws and
Customs of War on Land, 36 Stat. 2301—2302.

8lion-hard, Diplomatic Protection of Citizens Abroad, 64.

”This Court has held that the Constitution assures him a large
measure of equal economic opportunity, Yz‘ck W0 v. Hopkins, 118
U. S. 3:36; Truax v. Rafe/i, 230 U. S. 33; he may invoke the writ
of habeas corpus to protect his personal liberty, Nislzimin'a E/riu V.
United States, 142 U. S. 651, 600; in criminal proceedings against
him he must be accorded the protections of the Fifth and Sixth
Amendments, Wong Wing v. United States, 163 U. S. 228; and,
unless he is an enemy alien, his property cannot be taken without just
compensation. Russian Volunteer Fleet v. United States, 282 U. S.

1"He cannot stand for election to many public offices. For in—
stance, Art. I, §‘Z, c]. 2, §3, cl. 3 of the Constitution respectively
requi'e that candidates for election to the House of Representatives
and Senate be citizens. See Borehard, Diplomatic Protection of Citi-
zens Abroad, 03. The states, to Whom is entrusted the authority to
set qualifications of voters, for most purposes require citizenship as
a condition precedent to the voting franchise. The alien’s right to
travel ousidc the United States is subject to restrictions not applicable


 43, 206 & 264:

portantly, to protract this ambiguous status Within the
country is not his right but is a matter of permission and
tolerance. The Government’s power to terminate its hos—
pitality has been asserted and sustained by this Court
since the question first arose.11 War, of course, is the
most usual occasion for extensive resort'to the power.
Though the resident alien may be personally loyal to the
United States, if his nation becomes our enemy, his alle—
giance prevails over his personal preference and makes
him also our enemy, liable to expulsion or internment,12
and his property becomes subject to seizure and perhaps
confiscation.13 But it does not require war to bring the
power of deportation into existence or to authorize its
exercise. Congressional apprehension of foreign or in-
ternal dangers short of war may lead to its use. So long
as the alien elects to continue the ambiguity of his alle-

giance his domicile here is held by a precarious tenure.
That aliens remain vulnerable to expulsion after long
residence is a practice that bristles with severities. But
it is a weapon of defense and reprisal confirmed by inter—
national law as a power inherent in every sovereign

to citizens. a”) Stat. 158, as amended, 8 U. S. C. §210. If he is
arrested on a chmge of entering the country illegally, the burden is
111$ to prove “his right to enter or reniain”—no presumptions accrue
in his favor by his presence here. 30 Stat. 880, as amended, 8 U. S. C.
§ 1:35 1:1).

1‘ ll'nnr/ Yne. Ting V. United States, 149 U. S. 698, 707, 711—714.,
731‘); Lem Mann Sing V. United States, 155 U. S. 538, 515—546; Li
Sing v. (fnz'ted States, 180 U. S. 486, 491—195; Folt Yang Y0 V.
United States. 185 17. S. 296, 302; The. Japanese Immigrant Case,
181) 1’. S SH, 117; United States v. Ju Toy. 198 U. S. 253, 261; Za/.ton—
(rite v. ”'01)“, 2‘26 U. S. 272, 275; Time v. Forbes, 228 U. S. 5-10, 556—
557; Bin/«(jearitz v. Adams. 228 U. S. 585, 591.

13»l()SI:11.55-}1,5017. S. C. §21.

11" ~10 Stat. 4111, 50 'U. S. C. App. §2 (c); 40 Stat. 415, 50 U. S. C.
App. .36; 132 Stat, 1216, 50 U. S. C. App. §39; Gucssefcldt v. Mc—
Grat/z, 342 U. S. 308.


 43, 206 & 264:

state.“ Such is the traditional power of the Nation over
the alien and we leave the law on the subject as we find it.

This brings us to the alternative defense under the
Due Process Clause—that, granting the power, it is so
unreasonably and harshly exercised by this enactment
that it should be held unconstitutional.

In historical context the Act before us stands out as
an extreme application of the expulsion power. There»
is no denying that as world convulsions have driven us
toward a closed society the expulsion power has been exer-
cised with increasing severity, Manifest in multiplica—
tion of grounds for deportation, in expanding the subject
classes from illegal entrants to legal residents, and in
greatly lengthening the period of residence after which
one may be expelled.” This is said to have reached a

”". . . [I’ln strict law, a State can expel even domiciled aliens
without so much as giving the reasons, the refusal of the expelling
State to supply the reasons for expulsion to the home State of the-
expelled alien does not constitute an illegal, but only a very un-
friendly act.” 1 Oppenheiin, International Law (3d ed., Roxburgh,
192m, etttRsSOQ, at 4109. See also 4 Moore, International Law Digest,
(374M, citing examples; Wheaton's Internationrd Law (tith ed., Keith,
ltl‘lfl) 2l()7‘_’11; qu/ Yuri Ting v. United States, l-lf) U. S. 698.

“An open door to the immigrant was the early federal policy.
It l)(‘LI.'lll to close in lStiE when Orientals were excluded. 12 Stat. 3410.
'l‘hereat'ter, ("oneress has intermittently added to the excluded classes,
and as rejections at the border multiplied illegal entries increased.
To combat these, recourse was had to deportation in the Act of 1891,
2d Stat. UN}. llowevcr, that Act could be applied to an illegal
entrant only within one year after his entry. Although that time
limitation was subsequently extended, 3‘3 “tat. 1'2ng ill Stat. 904—005,
until after the turn of the century expulsion was used only as an
auxiliary remedy to enforce exclusion.

Congress, in 1907, provided for deportation of legally resident
aliens, but the statute reached only women found enaae'ine‘ in prosti-
tution. and deportation proceedings were authorized only within three
years after entry.

From those early stei s, the policy has been extended. In 1010,
new classes of resident aliens were listed for deportation, including


 43, 206 & 264

point where it is the duty of this Court to call a halt upon
the political branches of the Government.

It is pertinent to observe that any policy toward aliens
is vitally and intricately interwoven with contempora—
neous policies in regard to the conduct of foreign relations,
the war power, and the maintenance of a republican form
of government. Such matters are so exclusively entrusted
to the political branches of government as to be largely
immune from judicial inquiry or interference.16

These judicial renunciations, occasioned by different»
and convulsive events, do not control today’s decision but
they are pertinent. It is not necessary and probably not
possible to delineate a fixed and precise line of separation
in these matters between political and judicial power un—

for the first time political offenders such as anarchists and those
believingr in or advocatingr the overthrow of the Government by force
and violence. 3t) Stat. 264. In 1917, aliens who were found after
entry to be advocating anarchist doctrines or the overthrow of the
Government by force and violence were made subject to deportation,
a live—year time limit being retained. 39 Stat. 889. A year later,
deportability because of membership in described subversive organi-
zations was introduced. 40 Stat. 1012; 41 Stat. 1008. thcn this
Court, in 1930, held that that Act reached only aliens who were mem—
bers: when the proceedings against them were instituted, Kcsslcr v.
Strut/.17; 2507 U. S 22, Congress promptly enacted the statute before
us, makin: deportation mandatory for all aliens who at any time past
have. been members of the proscribed organizations. In so doingr it
also eliiuinatml the time limit for institution of proceedings there-
under. Alien Registration Act: of 1910, 50 Stat. 671, (373.

“‘ ('niter/ States v, ('m'lix ll'rig/it (7027)., 299 U. S. 30-1, 319-322;
Cit/cage A" Southern Air Lines. Inc. v. U'Yltcrman Steamship Corp,
333 S. 10:}, 111; U. S. Const, Art. 1V, S4; Luther v. Borden,
7 llow. l, 43, Pacific Telephone ('0. v. Oregon. 223 U. S. 118;
ilIm's-lm/t v. Due. 2331 U. S. 2:30. In respect to the war power ever
even citizens, see [I/mbru/as/zi v. t'nitt‘d States. 320 U. S. 81, 0‘3;
Ix'orrmrztsu v. t'niter/ States. 323 U. S. 2H, 217—218. That English
courts also refuse to review grounds for deportation orders appears
from [Ber \'. Home Secretary: (at partc Brew/er, ‘37 Cox Crim. Cases



 43, 206 a 264

der the Constitution. Certainly, however, nothing in the
structure of our Government or the text of our Constitu—
tion would warrant judicial review by standards which
would require us to equate our political judgment with
that of Congress.

Under the conditions which produced this Act can we
declare that congressional alarm about a coalition of
Communist power without and Communist conspiracy
within the United States is either a fantasy or a pretense?
This Act was approved by President Roosevelt June 28,
1940, when a world war was threatening to involve us, as
soon it did. Communists in the United States were exert—
ing every effort to defeat and delay our preparations.
Certainly no responsible American would say that there
were then no grounds to believe that Communists in our
midst were inimical to our security.

It is true that a brief and bloody alliance with the Com-
munist powers intervened. Upon the break—up of this
alliance the Soviet Union emerged a formidable interna-
tional power, separated from us in sentiment, tradition,
culture and policy by a chasm that so far has not been
bridged by diplomacy, harboring a hostility that seems
implacable. With Muscovite Marxism as a cohesive force
she has achieved a Communist hegemony consisting of a
number of client states and of strong revolutionary fac-
tions in other states whose potentialities are yet unknown.

That this combination of Communist governments and
factions seeks to undermine, weaken, embroil, and ulti-
mately overthrow our Republic is something Congress
could be forgiven for believing. That this hostile con-
federation could eoordinate formidable military forces
with domestic violence caused by the Communist Party,
can hardly be doubted, whatever View one may take as to
its chance of success.

Congress received evidence that the Communists move-
ment here has been heavily laden with aliens and that


 43, 206 a 264

Soviet control of the American Communist Party has
been largely through alien Communists. It would be easy
for those of us who do not have security responsibility to
say that those who do are taking Communism too seri-
ously and overestimating its danger. But we have an
Act of one Congress which a decade of subsequent Con-
gresses have never repealed but have strengthened and
extended. We, in our private opinions, need not concur
in Congress’ policies to hold its enactments constitutional.
Officially we must tolerate what personally we may regard
as a legislative mistake.

'We are urged, because the policy inflicts severe and
undoubted hardship on affected individuals, to find a re—
straint in the Due Process Clause. But the Due Process
Clause does not shield the citizen from conscription and
the consequent calamity of being separated from family,
friends, home and business while he is transported to for—
eign lands to stem the tide of Communism. If Commu-
nist aggression creates such hardships for loyal citizens, it
is hard to find justification for holding that its hardships
must be spared the Communist alien. When citizens
raised the Constitution as a shield against expulsion from
their homes and places of business the Court refused to
find hardship a. cause for judicial intervention.17

We think that, in the present state of the world, it
would be rash and irresponsible to reinterpret our funda—
mental law to deny or qualify the Government’s power
of deportation. However desirable world—wide ameliora—
tion of the lot of aliens, we think it should not be initiated
by judicial decision which can handicap only our own
Government without obtaining for American citizens
abroad any reciprocal privileges or immunities. Reform
in this field must be entrusted to the branches of the

‘7 [Iz'mbnynslu' v. United States, 820 U. S. 81; Korcmatsu v. United
States, 323 U. S. 214.


 43, 206 a 264

Government in control of our international relations and
treaty-making powers.

lVe hold that the Act is not invalid under the Due
Process Clause. These aliens are not entitled to judicial
relief unless some other constitutional limitation has been
transgressed, to which inquiry we turn.


The First Amendment is invoked as a barrier against-
this enactment. The claim is that in joining an organiza—
tion advocating overthrow of government by force and
violence the alien has merely exercised freedoms of speech,
press and assembly which that Amendment guarantees
to him.

The assumption, is that the First Amendment allows
Congress to make no distinction between advocating
change in the existing order by lawful elective processes
and advocating change in the existing order by force and
violence, that freedom for the one includes freedom for
the other, and that when teaching of violence is denied
so is freedom of speech.

Our Constitution sought to leave no excuse for violent
attack on the status quo by providing a legal alternative——
attack by ballot. To arm all men for orderly change, the
Constitution put in their hands a right to influence the
electorate by press, speech and assembly. This means
freedom to advocate or promote Communism by means of
the ballot box, but it does not include the practice or incite-
ment of violence.1S

True, it often is difficult to determine whether am-
biguous speech is advocacy of political methods or subtly
shades into a methodical but prudent incitement to vio-
lence. Communist governments avoid the inquiry by

15 Dmmis V. United States, 341 U. S. 404:.


 43, 206 a; 264

suppressing everything distasteful. Some would have us
avoid the difficulty by going to the opposite extreme of
permitting incitement to violent overthrow at least un-
less it seems certain to succeed immediately. lVe appre—
hend that the Constitution enjoins upon us the duty
of distinguishing between the two, however difficult.
Different formulae have been applied in different situa—
tions and the test applicable to the Communist Party has
been stated too recently to make further discussion at this
time profitable.” We think the First Amendment does
not prevent the deportation of these aliens.


The remaining claim is that this Act conflicts with Art.
I, § 9, of the Constitution forbidding ex post facto enact-A
ments. An impression of retroactivity results from read—
ing as a new and isolated enactment what is a continuation

of prior legislation.

During all the years since 1920, Congress has main--
tained a standing admonition to aliens, on pain of de-
portation, not to become members of any organization
that advocates overthrow of the United States by force
and violence, a category repeatedly held to include the
Communist Party. These aliens violated that prohibi-
tion and incurred liability to deportation. They were not
caught unawares by a change of law. There can be no
contention that they were not adequately forewarned both
that their conduct was prohibited and of its consequences.

In 1939, this Court decided Kessler v. Strccker, 307
U. S. 22. in which it was held that Congress had not clearly
expressed an intent that membership remained cause for
deportation after it ceased as the statute then stood.20

1" [bi/l.
'3” #10 Stat. 1012.


 43, 206 & 264

The Court concluded that in the absence of such expres—
sion only contemporaneous membership would authorize

The reaction of the Communist Party was to drop aliens,
at least in form, from membership in order to immunize
them from the consequences of their party membership.

The reaction of Congress was that the Court had mis-
understood its legislation. In the Act here before us it
supplied unmistakable language that past violators of its
prohibitions continued to be deportable in spite of resig-
nation or expulsion from the party. It regarded the fact
that an alien defied our laws to join the Communist Party
as an indication that he had developed little comprehen—
sion of the principles or practice of representative govern—
ment or else was unwilling to abide by them.

However, even if the Act were found to be retroactive,
to strike it down would require us to overrule the con-
struction of the 6;?) post facto provision which has been
followed by this Court from earliest times. It always has
been considered that that which it forbids is penal legisla-
tion which imposes or increases criminal punishment for
conduct lawful previous to its enactment.21 Deportation,
however severe its consequences, has been consistently
classified as a civil rather than a criminal procedure.22
Both of these doctrines as original proposals might be de—
batable. but both have been considered closed for many
years and a body of statute and decisional law has been
built upon them. In Bujajcwitz V. Adams, 228 U. S. 585,
591, Mr. Justice Holmes, for the Court, said: “It is thor—
oughly established that Congress has power to order the
deportation of aliens whose presence in the country it

'31 Calder V. Bull, 3 Cranch 386, 390; Johanncsscn V. United States,
225 U. S. 227, 242.

33 Fang Yuc Ting V. United States, 149 U. S. 698, 730; Bugajewitz
V. Adams, 228 U. S. 585, 591; Bila/mmslry v. Tod, 263 U. S. 149, 154.


 43, 206 & 264

deems hurtful. The determination by facts that might
constitute a crime under local law is not a conviction of
crime, nor is the deportation a punishment; it is simply
a refusal by the Government to harbor persons whom it
does not want. The coincidence of the local penal law
with the policy of Congress is an accident. . . . The pro—
hibition of €51: post facto laws in Article I, § 9, has no appli—
cation, . . . and with regard to the petitioner it is not
necessary to construe the statute as having any retrospec-
tive effect.” Later, the Court said, “It is well settled that
deportation, while it may be burdensome and severe for
the alien, is not a punishment. . . . The inhibition
against the passage of an en; post facto law by Congress
in § 9 of Art. I of the Constitution applied only to criminal
laws . . . and not to a deportation act like this. . . .”
1Ualzlcr v. Eby, 264 U. S. 32, 39.

It is urged against the foregoing opinions that in a few
cases the at post facto prohibition had been applied to
what appeared to be civil disabilities. Fletcher v. Peck,
6 Cranch 87; Cummings v. ilfissouri, 4 Wall, 277; Es
parle Garland, 4 Wall. 333; Pierce V. Carslcaden, 16 Wall.
234. The Court has earlier, however, explained that
those cases proceeded from the View that novel disabilities
there imposed upon citizens were really criminal penalties
for which civil form was a disguise. Burgess V. Salmon,
97 U. S 381, 385. Those cases were known to the Jus-
tices who promulgated the above-quoted opinions but
have never been considered to govern deportation. The
facts of this case afford no basis for reconsidering or modi-
fying the long-settled doctrine.

It is contended that this policy allows no escape by
reformation. We are urged to apply some doctrine of
atonement and redemption. Congress might well have
done so, but it is not for the judiciary to usurp the func-
tion of granting absolution or pardon. \Ve can not do so


 43, 206 & 264

for deportable ex-convicts, even though they have served
a term of imprisonment calculated to bring about their
reformation. We can no more do so for ex—Communists.

When the Communist Party as a matter of party
strategy formally expelled alien members en masse, it de—
stroyed any significance that discontinued membership
might otherwise have as indication of change of heart by
the individual. The Party tactics threw upon the Gov-
ernment an almost impossible burden if it attempted to
separate those who sincerely renounced Communist prin—
ciple of force and violence from those who left the party
the better to serve it. Congress declined to accept that

We find none of the constitutional objections to the
Act well founded. The judgments accordingly are

A flirmed.




Nos. 43, 206 AND 264.—OCTOBER TERM, 1951.

Peter Harisiades, Petitioner,

43 v. 011 W’rit of Certiorari

Edward J. Shaughnessy, District t0 the United States
Director of Immigration and Court Of Appeals for
Naturalization of the Port of the 89001161 Cil‘CUit-
New York.

Luigi Mascitti, Appellant, Appeal from the United
206 1). States District Court
J. Ho“ a1 (1 \IcG1ath Atto111ey for the District of

General of the United States. Columbia.

Dora Coleman, Appellant,

264 12.

J. Howard \IcGr,ath Attorney
GeneIal of the Inited States
and A. R. AIaekcy, Acting