Ludecke v. Watkins/Opinion of the Court

by Felix Frankfurter

United States Supreme Court

335 U.S. 160

Ludecke  v.  Watkins

 Argued: May 3, 4, 1948. --- Decided: June 21, 1948

The Fifth Congress committed to the President these powers:

'Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrarted, attempted, or threatened against the territory of the United States by any foreign nation or government, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed as alien enemies. The President is authorized, in any such event, by his proclamation thereof, or other public act, to direct the conduct to be observed, on the part of the United States, toward the aliens who become so liable; the manner and degree of the restraint to which they shall be subject and in what cases, and upon what security their residence shall be permitted, and to provide for the removal of those who, not being permitted to reside within the United States, refuse or neglect to depart therefrom; and to establish any other regulations which are found necessary in the premises and for the public safety.' (Act of July 6, 1798, 1 Stat. 577, R.S. § 4067, as amended, 40 Stat. 531, 50 U.S.C. § 21, 50 U.S.C.A. § 21.)

This Alien Enemy Act has remained the law of the land, virtually unchanged since 1798. ^[1] Throughout these one hundred and fifty years executive interpretation and decisions of lower courts have found in the Act an authority for the President which is now questioned, and the further claim is made that if what the President did comes within the Act, the Congress could not give him such power. ^[2] Obviously these are issues which properly brought the case here. 333 U.S. 865, 68 S.Ct. 785.

Petitioner, a German alien enemy, ^[3] was arrested on December 8, 1941, and, after proceedings before an Alien Enemy Hearing Board on January 16, 1942, was interned by order of the Attorney General, deted February 9, 1942. ^[4] Under authority of the Act of 1798, the President, on July 14, 1945, directed the removal from the United States of all alien enemies 'who shall be deemed by the Attorney General to be dangerous to the public pease and safety of the United States.' Proclamation 2655, 10 Fed.Reg. 8947. Accordingly, the Attorney General, on January 18, 1946, ordered petitioner's removal. ^[5] Denial of a writ of habeas corpus for release from detention under this order was affirmed by the court below. 2 Cir., 163 F.2d 143.

As Congress explicitly recognized in the recent Administrative Procedure Act, some statutes 'preclude judicial review.' Act of June 11, 1946, § 10, 60 Stat. 237, 243, 5 U.S.C.A. § 1009. Barring questions of interpretation and constitutionality, the Alien Enemy Act of 1798 is such a statute. Its terms, purpose, and construction leave no doubt. The language employed by the Fifth Congress could hardly be made clearer, or be rendered doubtful, by the incomplete and not always dependable accounts we have of debates in the early years of Congress. ^[6] That such was the scope of the Act is established by controlling contemporaneous construction. 'The act concerning alien enemies, which confers on the president very great discretionary powers respecting their persons,' Marshall, C.J., in Brown v. United States, 8 Cranch 110, 126, 3 L.Ed. 504, 'appears to me to be as unlimited as the legislature could make it.' Washington, J., in Lockington v. Smith, 15 Fed.Cas. 758, 761, at page 760, No. 8,448. The very nature of the President's power to order the removal of all enemy aliens rejects the notion that courts may pass judgment upon the exercise of his discretion. ^[7] This view was expressed by Mr. Justice Iredell shortly after the Act was passed, Case of Fries, 9 Fed.Cas. page 826, No. 5,126, and every judge before whom the question has since come has held that the statute barred judicial review. ^[8] We would so read the Act if it came before us without the impressive gloss of history.

The power with which Congress vested the President had to be executed by him through others. He provided for the removal of such enemy aliens as were 'deemed by the Attorney General' to be dangerous. ^[9] But such a finding, at the President's behest, was likewise not to be subjected to the scrutiny of courts. For one thing, removal was contingent not upon a finding that in fact an alien was 'dangerous.' The President was careful to call for the removal of aliens 'deemed by the Attorney General to be dangerous.' But the short answer is that the Attorney General was the President's voice and conscience. A war power of the President not subject to judicial review is not transmuted into a judicially reviewable action because the President chooses to have that power exercised within narrower limits than Congress authorized.

And so we reach the claim that while the President had summary power under the Act, it did not survive cessation of actual hostilities. ^[10] This claim in effect nullifies the power to deport alien enemies, for such deportations are hardly practicable during the pendency of what is colloquially known as the shooting war. ^[11] Nor does law lag behind common sense. War does not cease with a cease-fire order, and power to be exercised by the President such as that conferred by the Act of 1798 is a process which begins when war is declared but is not exhausted when the shooting stops. ^[12] See United States v. Anderson, 9 Wall. 56 70, 19 L.Ed. 615; The Protector, 12 Wall. 700, 20 L.Ed. 463; McElrath v. United States, 102 U.S. 426, 438, 26 L.Ed. 189; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 167, 40 S.Ct. 106, 112, 64 L.Ed. 194. 'The state of war' may be terminated by treaty or legislation or Presidential proclamation. Whatever the modes, its termination is a political act. ^[13] Id. Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled. Only a few months ago the Court rejected the contention that the state of war in relation to which the President has exercised the authority now challenged was terminated. Woods v. Cloyd W. Miller Co., 333 U.S. 138, 68 S.Ct. 421. Nothing that has happened since calls for a qualification of that view. ^[14] It is still true, as was said in the opinion in that case which eyed the war power most jealously, 'We have armies abroad exercising our war power and have made no peace terms with our allies not to mention our enemies.' Woods v. Cloyd W. Miller Co., supra, 333 U.S. at page 147, 68 S.Ct. at page 425 (concurring opinion). The situation today is strikingly similar to that of 1919, where this Court observed: 'In view of facts of public knowledge, some of which have been referred to, that the treaty of peace has not yet been concluded, that the railways are still under national control by virtue of the war powers, that other war activities have not been brought to a close, and that it cannot even be said that the man power of the nation has been restored to a peace footing, we are unable to conclude that the act has ceased to be valid.' Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. at page 163, 40 S.Ct. at page 111, 64 L.Ed. 194.

The political branch of the Government has not brought the war with Germany to and end. On the contrary, it has proclaimed that 'a state of war still exists.' Presidential Proclamation 2714, 34 U.S.C.A. § 366, 12 Fed.Reg. 1; see Woods v. Cloyd W. Miller Co., supra, 333 U.S. at page 140, 68 S.Ct. at page 422; Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375. The Court would be assuming the functions of the political agencies of the Government to yield to the suggestion that the unconditional surrender of Germany and the disintegration of the Nazi Reich have left Germany without a government capable of negotiating a treaty of peace. It is not for us to question a belief by the President that enemy aliens who were justifiably deemed fit subjects for internment during active hostilities do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of war even when the guns are silent but the peace of Peace has not come. ^[15] These are matters of political judgment for which judges have neither technical competence nor official responsibility.

This brings us to the final question. Is the statute valid as we have construed it? The same considerations of reason, authority, and history, that led us to reject reading the statutory language 'declared war' ^[16] to mean 'actual hostilities,' support the validity of the statute. The war power is the war power. If the war, as we have held, has not in fact ended, so as to justify local rent control, a fortiori, it validly supports the power given to the President by the Act of 1798 in relation to alien enemies. Nor does it require protracted argument to find no defect in the Act because resort to the courts may be had only to challenge the construction and validity of the statute and to question the existence of the 'declared war,' as has been done in this case. ^[17] The Act is almost as old as the Constitution, and it would savor of doctrinaire audacity now to find the statute offensive to some emanation of the Bill of Rights. ^[18] The fact that hearings are utilized by the Executive to secure an informed basis for the exercise of summary power does not argue the right of courts to retry such hearings, nor bespeak denial of due process to withhold such power from the courts.

Such great war powers may be abused, no doubt, but that is a bad reason for having judges supervise their exercise, whatever the legal formulas within which such supervision would nominally be confined. In relation to the distribution of constitutional powers among the three branches of the Government, the optimistic Eighteenth Century language of Mr. Justice Iredell, speaking of this very Act, is still pertinent:

'All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.' (Case of Fries, supra, 9 Fed.Cas. at page 836, No. 5,126.) Accordingly, we hold that full responsibility for the just exercise of this great power may validly be left where the Congress has constitutionally placed it-on the President of the United States. The Founders in their wisdom made him not only the Commander-in-Chief but also the guiding organ in the conduct of our foreign affairs. He who was entrusted with such vast powers in relation to the outside world was also entrusted by Congress, almost throughout the whole life of the nation, with the disposition of alien enemies during a state of war. Such a page of history is worth more than a volume of rhetoric. ^[19]

Judgment affirmed and stay order entered February 2, 1948, vacated.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS, Mr. Justice MURPHY and Mr. Justice RUTLEDGE join, dissenting.

Notes

1. There have been a few minor changes in wording. We have duly considered these in light of an argument in the brief of the amici curiae and deem them without significance.
2. We are advised that there are 530 alien enemies, ordered to depart from the United States, whose disposition awaits the outcome of this case.
3. The district court found that:
4. No question has been raised as to the validity of these administrative actions taken pursuant to Presidential Proclamation 2526, dated December 8, 1941, 6 Fed.Reg. 6323, issued under the authority of the Alien Enemy Act.
5. The order recited that the petitioner was deemed dangerous on the basis of the evidence adduced at hearings before the Alien Enemy Hearing Board on January 16, 1942, and the Repatriation Hearing Board on December 17, 1945. The district court which examined these proceedings found that petitioner had notice and a fair hearing and that the evidence was substantial. See also note 8, infra.
6. See, however, United States ex rel. Kessler v. Watkins, 2 Cir., 163 F.2d 140; Citizens Protective League v. Clark, 81 U.S.App.D.C. 116, 155 F.2d 290.
7. 'Such a construction would, in my opinion, be at variance with the spirit as well as with the letter of the law, the great object of which was to provide for the public safety, by imposing such restraints upon alien enemies, as the chief executive magistrate of the United States might think necessary, and of which his particular situation enabled him best to judge. * * * I do not feel myself authorised to impose limits to the authority of the executive magistrate which congress, in the exercise of its constitutional powers, has not seen fit toi mpose. Nothing in short, can be more clear to my mind, from an attentive consideration of the act in all its parts, than that congress intended to make the judiciary auxiliary to the executive, in effecting the great objects of the law; and that each department was intended to act independently of the other, except that the former was to make the ordinances of the latter, the rule of its decisions.' Lockington v. Smith, supra, 15 Fed.Cas. at page 761, No. 8,448.
8. Citizen's Protective League v. Clark, 81 U.S.App.D.C. 116, 155 F.2d 290; United States ex rel. Schlueter v. Watkins, 2 Cir., 158 F.2d 853; United States ex rel. Hack v. Clark, 7 Cir., 159 F.2d 552; United States ex rel. Kessler v. Watkins, 2 Cir., 163 F.2d 140; United States ex rel. Von Ascheberg v. Watkins, 2 Cir., 163 F.2d 1021; Minotto v. Bradley, D.C., 252 F. 600; see Lockington's Case, Brightly, N.P., Pa., 269, 280; Lockington v. Smith, 15 F.Cas. page 758, No. 8,448; Ex parte Graber, D.C., 247 F. 882; De Lacey v. United States, 9 Cir., 249 F. 625, L.R.A.1918E, 1011; Ex parte Fronklin, D.C., 253 F. 984; Grahl v. United States, 7 Cir., 261 F. 487; cf. Banning v. Penrose, D.C., 255 F. 159; Ex parte Risse, D.C., 257 F. 102; Ex parte Gilroy, D.C., 257 F. 110; United States ex rel. De Cicco v. Longo, D.C., 46 F.Supp. 170; United States ex rel. Schwarzkopf v. Uhl, 2 Cir., 137 F.2d 898; United States ex rel. D'Esquiva v. Uhl, 2 Cir., 137 F.2d 903; United States ex rel. Knauer v. Jordan, 7 Cir., 158 F.2d 337. The one exception is the initial view taken by the district court in this case. It rejected the 'contention that the only question that the Court may consider in this habeas corpus proceeding is the petitioner's alien enemy status, although there are cases which give support to that view,' but held the petitioner had had a fair hearing before the Repatriation Board and that there was substantial evidence to support the Attorney General's determination that petitioner was 'dangerous.' On rehearing, the court noted that the Schlueter case, supra, foreclosed the issue.
9. If the President had not added this express qualification, but had conformed his proclamation to the statutory language, presumably the Attorney General would not have acted arbitrarily but would have utilized some such implied standard as 'dangerous' in his exercise of the delegated power.
10. 'The cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 161, 40 S.Ct. 106, 110, 64 L.Ed. 194, that the war power includes the power 'to remedy the evils which have arisen from its rise and progress' and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507, 20 L.Ed. 176. Whatever may be the reach of that power, it is plainly adequate to deal with problems of law enforcement which arise during the period of hostilities but do not cease with them. No more is involved here.' Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375.
11. The claim is said to be supported by the legislative history of the Act. We do not believe that the paraphrased expressions of a few members of the Fifth Congress could properly sanction at this late date a judicial reading of the statutory phrase 'declared war' to mean 'state of actual hostilities.' See p. 3, supra. Nothing needs to be added to the consideration which this point received from the court below in the Kessler case. Circuit Judge Augustus Hand, in this case speaking for himself and Circuit Judges L. Hand and Swan, said:
12. It is suggested that a joint letter to the Chairman of a congressional committee by Attorney General Gregory and the Secretary of Labor in the Wilson administration reflects a contrary interpretation of this Act. But, as the Kessler opinion pointed out: 'The letter of Attorney General Gregory referred to by appellants' counsel does not affect our conclusions. When he said that there was no law to exclude aliens he was, in our opinion, plainly referring to conditions after the ratification of the peace treaty, and not to prior conditions.' 163 F.2d 143. The text of the letter (dated Feb. 5, 1919) supports that observation: 'There is no law now on the statute books under which these persons can be excluded from the country, nor under which they can be detained in custody after the ratification of the peace treaty. Unless the bill introduced by you, or one similar in character is passed it will become necessary on the ratification of peace to set free all of these highly dangerous persons.' Hearings before the House Committee on Immigration and Naturalization on H.R. 6750, 66th Cong., 1st Sess., 42-43. And Attorney General Palmer made substantially the same statements to the Senate and House Committees on Immigration. See S.Rep. No. 283, 66th Cong., 1st Sess., 2; H.R.Rep. No. 143, 66th Cong., 1st Sess., 2.
13. Of course, there are statutes which have r ovisions fixing the date of the expiration of the war powers they confer upon the Executive. See, e.g., Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 167, note 1, 40 S.Ct. 106, 112, 64 L.Ed. 194 (collection of statutes providing that the authority terminates upon ratification of treaty of peace or by Presidential proclamation). Congress can, of course, provide either by a day certain or a defined event for the expiration of a statute. But when the life of a statute is defined by the existence of a war, Congress leaves the determination of when a war is concluded to the usual political agencies of the Government.
14. Cf., e.g., the President's address to Congress on March 17, 1948, recommending the enactment of the European recovery program, universal military training, and the temporary reenactment of selective service legislation. H.Doc.No.569, 80th Cong., 2d Sess. On May 10, 1948, by Executive Order 9957, 13 Fed.Reg. 2503, the President exercised his authority 'in time of war, * * * through the Secretary of War, to take possession and assume control of any system or systems of transportation * * *.' Act of August 29, 1916, 39 Stat. 619, 645, 10 U.S.C. § 1361, 10 U.S.C.A. § 1361.
15. 'Rapid changes are taking place in Europe which affect our foreign policy and our national security. * * * Almost 3 years have passed since the end of the greatest of all wars, but peace and stability have not returned to the world.' H.Doc.No.569, supra, at p. 1.
16. We should point out that it is conceded that a 'state of war' was 'formally declared' against Germany. Act of December 11, 1941, 55 Stat. 796, 50 U.S.C.A.Appendi, note preceding section 1.
17. The additional question as to whether the person restrained is in fact an alien enemy fourteen years of age or older may also be reviewed by the courts. See cases cited note 8, supra. This question is not raised in this case.
18. The Fifth Congress was also responsible for 'An Act concerning Aliens,' approved June 25, 1798, 1 Stat. 570, and 'An Act in addition to the act, entitled 'An act for the punishment of certain crimes against the United States," approved July 14, 1798, 1 Stat. 596, as well as the instant 'An Act respecting Alien Enemies,' approved July 6, 1798. It is significant that while the former statutes-the Alien and Sedition Acts-were vigorously and contemporaneously attacked as unconstitutional, there was never any issue raised as to the validity of the Alien Enemy Act. James Madison, in his report on the Virginia Resolutions, carefully and caustically differentiated between friendly and enemy alien legislation, as follows: 'The next observation to be made is, that much confusion and fallacy have been thrown into the question by blending the two cases of aliens, members of a hostile nation, and aliens, members of friendly nations. * * * With respect to alien enemies, no doubt has been intimated as to the Federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies.' 6 Writings of James Madison (Hunt, Editor) 360, 361. Similarly, Thomas Jefferson, the author of the Kentucky Resolutions of 1798 and 1799, was careful to point out that the Alien Act under attack was the one 'which assumes power over alien friends.' 8 Writings of Thomas Jefferson (Ford, Editor) 466. There was never any questioning of the Alien Enemy Act of 1798 by either Jefferson or Madison nor did either ever suggest its repeal.
19. It is suggested that Congress ought to do something about correcting today's decision. But the present Congress has apparently anticipated the decision. It has recognized that the President's powers under the Alien Enemy Act of 1798 were not terminated by the cessation of actual hostilities by appropriating funds '* * * for all necessary expenses, incident to the maintenance, care, detention, surveillance, parole, and transportation ofa lien enemies and their wives and dependent children, including transportation and other expenses in the return of such persons to place of bona fide residence or to such other place as may be authorized by the Attorney General * * *.' Pub.L. 166, 80th Cong., 1st Sess., approved July 9, 1947, 61 Stat. 279, 292. 'And the appropriation by Congress of funds for the use of such agencies stands as confirmation and ratification of the action of the Chief Executive. Brooks v. Dewar, 313 U.S. 354, 361, 61 S.Ct. 979, 982, 85 L.Ed. 1399.' Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 1132, 91 L.Ed. 1375; see also Isbrandtsen-Moller Co. v. United States, 300 U.S. 139, 57 S.Ct. 407, 81 L.Ed. 562.