|United States v. Brown
334 F.2d 488, affirmed.
[ Warren ]
[ White ]
United States v. Brown
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK, MR. JUSTICE HARLAN, and MR. JUSTICE STEWART join, dissenting.
"A bill of attainder is a legislative act which inflicts punishment without a judicial trial." Cummings v. Missouri, 4 Wall. 277, 323. When an enactment is challenged as an attainder, the central inquiry must be whether the disability imposed by the act is "punishment" (i.e., is directed at an individual or a group of individuals) or is "regulation" (i.e., is directed at controlling future conduct). Flemming v. Nestor, 363 U.S. 603, at 613-614; accord, Trop v. Dulles, 356 U.S. 86, 95-96 (WARREN, C. J. . announcing judgment). Whether a punitive purpose would be inferred has depended in past cases on a number of circumstances, including the nature of the disability, whether it was traditionally regarded as punishment, whether it is rationally connected to a permissible legislative objective, as well as the specificity of the legislature's [p463] designation of the persons to be affected. See generally Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169.
In this case, however, the Court discards this meticulous multifold analysis that has been deemed necessary in the past. Instead, the Court places the burden of separating attainders from permissible regulation on an examination of the legislative findings implied by the nature of the class designated. The Bill of Attainder Clause, the Court says, was intended to implement the separation of powers by confining the legislature to rulemaking and preventing legislative invasion of a function left exclusively to the courts -- factfinding connected with applications of a general rule to individuals or groups. Section 504 of the Labor-Management Reporting and Disclosure Act is therefore a bill of attainder because, in pursuit of its purpose of preventing political strikes, it has specified the persons -- Communist Party members -- who are to be disqualified from holding union office, rather than excluding all persons who might engage in the undesirable conduct. The vice in § 504 is that it does not set forth a rule generally applicable to "any person who commits certain acts or possesses certain characteristics (acts and characteristics which, in Congress' view, make them likely to initiate political strikes)," but has instead designated "the persons who possess the feared characteristics," members of the Communist Party. Ante at 450.
At this point, the Court implies that legislation is sufficiently general if it specifies a characteristic that makes it likely that individuals falling within the group designated will engage in conduct Congress may prohibit. But the Court then goes on to reject the argument that Communist Party membership is, in itself, a characteristic raising such a likelihood. The Court declares that,
[e]ven assuming that Congress had reason to conclude that some Communists would use union positions to bring about [p464] political strikes, ". . . it cannot automatically be inferred that all members shar[e] their evil purposes or participat[e] in their illegal conduct."
Ante at 456. (Emphasis added.) This sudden shift in analysis -- from likelihood to certainty -- must mean that the Bill of Attainder Clause proscribes legislative action with respect to any group smaller than the total class possessing the characteristic upon which legislative power is premised whenever the legislation is based only on a finding about the average characteristics of the subgroup. The legislature may focus on a particular group or class only when the group designation is a "shorthand phrase" for the feared characteristic -- i.e., when it is common knowledge that all, not just some, members of the group possess the feared characteristic, and, thus, such legislative designation would require no legislative factfinding about individuals. [n1]
In the Court's view, therefore, § 504 is too narrow in specifying the particular class; but it is also too broad in treating all members of the class alike. On both counts -- underinclusiveness and overinclusiveness -- § 504 is invalid as a bill of attainder because Congress has engaged in forbidden factfinding about individuals and groups, and has thus strayed into the area reserved to the judiciary by the Constitution.
It is not difficult to find some of the cases and statutes which the necessary implications of the Court's approach will overrule or invalidate.
American Communications Assn. v. Douds, 339 U.S. 382, which upheld the predecessor statute to § 504 is obviously [p465] overruled. In that case, the Court accepted the congressional findings about the Communist Party and about the propensity of Party members
to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government.
339 U.S. at 388. Moreover, Congress was permitted to infer from a person's "political affiliations and beliefs" that such a person would be likely to instigate political strikes. 339 U.S. at 391-392. Like § 504, the statute there under consideration did not cover all persons who might be likely to call political strikes. Nevertheless, legislative findings that some Communists would engage in illegal activities were sufficient to sustain the exercise of legislative power. The Bill of Attainder Clause now forbids Congress to do precisely what was validated in Douds.
Similarly invalidated are statutes denying positions of public importance to groups of persons identified by their business affiliations, commonly known as conflict of interest statutes. In the Douds case, the Court found in such statutes support for its conclusion that Congress could rationally draw inferences about probable conduct on the basis of political affiliations and beliefs, which it considered comparable to business affiliations. The majority in the case now before us likewise recognizes the pertinency of such statutes and, in its discussion of Board of Governors v. Agnew, 329 U.S. 441, strenuously -- and unsuccessfully -- attempts to distinguish them.
The statute involved in Agnew, § 32 of the Banking Act of 1933, 48 Stat. 194, as amended, 12 U.S.C. § 78 (1964 ed.), forbade any partner or employee of a firm primarily engaged in underwriting securities from being a director of a national bank. The Court expressly recognized that the statute was directed to the "probability or likelihood" that a bank director who was also a partner or employee of an underwriting firm
may use his influence in the bank [p466] to involve it or its customers in securities which his underwriting house has in its portfolio or has committed itself to take.
329 U.S. at 447. (Emphasis added.) And, as we noted in Douds, 339 U.S. at 392, "[t]here was no showing, nor was one required, that all employees of underwriting firms would engage in such conduct." See also Agnew, 329 U.S. at 449.
In terms of the Court's analysis of the Bill of Attainder Clause, no meaningful distinction may be drawn between § 32 of the Banking Act and § 504. Both sections disqualify a specifically described group, officers and employees of underwriting firms in the one case and members of the Communist Party in the other. Both sections may be said to be underinclusive: others besides underwriters may have business interests conflicting with the duties of a bank director and others than Communists may call political strikes. Equally, both sections may be deemed overinclusive: neither section finds that all members of the group affected would violate their obligations to the office from which they are disqualified; some members would, and perhaps others would not. Both sections are based on a probability or likelihood that this would occur. Both sections leave to the courts the task of determining whether particular persons are members of the designated groups and occupy the specified positions.
In attempting to distinguish the two sections, the Court states that, in enacting § 32 of the Banking Act, Congress made no judgment or condemnation of any specific group of persons. Instead, the Court reasons,
Congress relied upon its general knowledge of human psychology, and concluded that the concurrent holding of the two designated positions would present a temptation to any man -- not just certain men or members of a certain political party.
Ante at 454. But § 32 disqualifies only partners and employees of underwriting firms, not other [p467] businessmen with conflicting interests. And § 504 applies to any man who occupies the two positions of labor union leader and member of the Communist Party. If, based upon "its general knowledge of human psychology," Congress may make findings about a group including members and employees of underwriting firms which disqualify such persons from a certain office, why may not Congress on a similar basis make such a finding about members of the Communist Party? "Because of their business connections, carrying as they do certain loyalties, interests and disciplines," § 32 disqualifies members and employees of underwriting firms as posing "a continuing threat of participation in the harmful activities. . . ." Douds, 339 U.S. at 392. The same might be said about § 504 as was said about its predecessor:
Political affiliations of the kind here involved, no less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed by § 9(h) would be subject to "tempting opportunities" to commit acts deemed harmful to the national economy. In this respect, § 9(h) is not unlike a host of other statutes which prohibit specified groups of persons from holding positions of power and public interest because, in the legislative judgment, they threaten to abuse the trust that is a necessary concomitant of the power of office.
Id. at 392.
Conflict of interest statutes are an accepted type of legislation. [n2] Indeed, our Constitution contains a conflict [p468] of interest provision in Art. I, § 6, cl. 2, which prohibits any Congressman from simultaneously holding office under the United States. If the Court would save the conflict of interest statutes, which apparently it would, it is difficult to understand why § 504 is stricken down as a bill of attainder.
Other legislative enactments relevant here are those statutes disqualifying felons from occupying certain positions. The leading case is Hawker v. New York, 170 U.S. 189, which upheld a provision prohibiting convicted felons from practicing medicine against a claim that, as applied to one convicted before its enactment, it was an ex post facto law. The Court noted that a legislature may establish qualifications for the practice of medicine, and character may be such a qualification. Conviction of a felony, the Court reasoned, may be evidence of character:
It is not open to doubt that the commission of crime . . . has some relation to the question of character. It is not, as a rule, the good people who commit crime. When the legislature declares that whoever has violated the criminal laws of the State shall be deemed lacking in good moral character, it is not laying down an arbitrary or fanciful rule -- one having no relation to the subject matter, but is only appealing to a well recognized fact of human experience. . . .
* * * *
It is no answer to say that this test of character is not in all cases absolutely certain, and that sometimes it works harshly. Doubtless, one who has violated the criminal law may thereafter reform and become, in fact, possessed of a good moral character. But the legislature has power in cases of this kind [p469] to make a rule of universal application, and no inquiry is permissible back of the rule to ascertain whether the fact of which the rule is made the absolute test does or does not exist.
170 U.S. at 196-197. Accord, De Veau v. Braisted, 363 U.S. 144, 159-160 (Frankfurter, J., announcing judgment) (bill of attainder and ex post facto challenges).
Like § 504, the legislation challenged in Hawker was both overinclusive and underinclusive. Felons were not the only persons who might possess character defects making them unsuitable practitioners of medicine; and, as the Court expressly noted, not all felons would lack good moral character. Nevertheless, the legislature was permitted to disqualify all members of the class, rather than being required to delegate to the courts the responsibility of determining the character of each individual based on all relevant facts, including the prior conviction. The legislative findings that sustained the legislation attacked in Hawker were simply that a substantial number of felons would be likely to abuse the practice of medicine because of their bad character. It is just such findings respecting the average propensities of a given class of persons to engage in particular conduct that the Court will not now permit under the Bill of Attainder Clause. Though the Court makes no attempt to distinguish the Hawker-type laws, it apparently would save them, see Trop v. Dulles, 356 U.S. 86, 96-97 (WARREN, C.J., announcing judgment), and with them the provision of the statute now before the Court which disqualifies felons from holding union office. [n3] [p470]
The Court apparently agrees that the Subversive Activities Control Act was not a bill of attainder with regard to the Communist Party because, as the Court pointed out in Communist Party v. Subversive Activities Control Board, 367 U.S. 1, the finding that the Party was a Communist action organization was not made by the legislature, but was made administratively, after a trial-type hearing and subject to judicial review. But this apparently does not settle whether the statute is a bill of attainder with respect to Party members; for, under today's approach, a finding about the Party and about some of its members does not cure the vice of overinclusiveness. The Subversive Activities Control Act attaches certain disqualifications to each Party member following the administrative-judicial finding that the Party is a Communist action organization. Among other things, each Party member is disqualified from holding union office, almost the same disqualification as is involved here. Subversive Activities Control Act of 1950, § 5(a)(1)(E), added by the Act of Aug. 24, 1954, § 6, 68 Stat. 777, 50 U.S.C. § 784(a)(1)(E) (1958 ed.). I do not see how this and the other consequences attached to Party membership in that Act could survive examination under the principles announced today.
On the other hand, if the statutes involved in Hawker and Agnew are not bills of attainder, how can the Subversive Activities Control Act be an attainder with respect to members of the Communist Party? In the Communist Party case, the Board found that the
[Party's] principal leaders and a substantial number of its members are subject to and recognize the disciplinary power of the Soviet Union and its representatives. This evidences domination and control over [the Party] by the Soviet Union, and a purpose to advance the objectives of the world Communist movement.
Modified Report of the Board, December 18, 1956, in Record in that case, [p471] p. 2538. That finding was expressly sustained by this Court. 367 U.S. 1, 57. Certainly, if Hawker and Agnew are to be followed at all, these nonlegislative findings establish a sufficient probability or likelihood with regard to Party members -- a sufficient temptation to Party members who are also union officers -- to permit the legislature to disqualify Party members from union office as it did in the Subversive Activities Control Act.
And if the disqualification of Party members in the Subversive Activities Control Act is not a bill of attainder, neither is § 504. If it is § 504's specific designation of the Communist Party and its members which concerns the Court -- if the Court would have the same concern if the statute in Agnew had disqualified the members of a particular underwriting firm -- it seems to me that, at this point, this vice is no vice at all; for the Congress has provided in another statute, the Subversive Activities Control Act, for an adjudication about Communist action organizations, the nature of the Party has now been adjudicated and an adequate probability about the future conduct of its members established to justify the disqualification which Congress has imposed. Compare Schware v. Board of Bar Examiners, 353 U.S. 232, 244 (absent findings respecting nature of Communist Party at time of bar applicant's membership, membership in Party 15 years prior to application provides no rational ground for disqualification).
This, of course, is not the path the Court follows. Section 504 is said to impose punishment on specific individuals because it has disqualified all Communist Party members without providing for a judicial determination as to each member that he will call a political strike. A likelihood of doing so based on membership is not enough. By the same token, a statute disqualifying Communists (or authorizing the Executive Branch to do so) from holding sensitive positions in the Government would be automatically [p472] infirm, as would a requirement that employees of the Central Intelligence Agency or the National Security Agency disclaim membership in the Communist Party, unless in each case it is proved by evidence other than membership in the Communist Party, the nature of which has already been adjudicated, that the individual would commit acts of disloyalty or subordinate his official undertakings to the interests of the Party.
But how does one prove that a person would be disloyal? The Communist Party's illegal purpose and its domination by a foreign power have already been adjudicated, both administratively and judicially. If this does not, in itself, provide a sufficient probability with respect to the individual who persists in remaining a member of the Party, or if a probability is, in any event, insufficient, what evidence with regard to the individual will be sufficient to disqualify him? If he must be apprehended in the act of calling one political strike or in one act of disloyalty before steps can be taken to exclude him from office, there is little or nothing left of the preventive or prophylactic function of § 504 or of the statutes such as the Court had before it in Hawker and Agnew.
Examples of statutes that will now be suspect because of the Court's opinion but were, until today, unanimously accepted as legitimate exercises of legislative power could easily be multiplied. Such a catalogue, in itself, would lead one to inquire whether the Court's reasoning does not contain some flaw that explains such perverse results.
One might well begin by challenging the Court's premise that the Bill of Attainder Clause was intended to provide a general dividing line between legislative and judicial functions, and thereby to operate as the chief means of implementing the separation of powers. While it must be conceded that our system of government is [p473] based on the separation of powers, and that the prohibition on bills of attainder is a judicially enforceable restraint on legislative power, and therefore constitutes one among the many mechanisms implementing the separation of powers, that conclusion is the most that can be gleaned from the authorities cited by the Court. Some, like the statement quoted from Chief Justice Marshall, Fletcher v. Peck, 6 Cranch 87, 136, reflect views concerning "whether the nature of society and of government does not prescribe some limits to the legislative power," id. at 135, rather than an analysis of the bill of attainder provision. None assigns a preeminent position to that provision, as compared with other restraints on the legislature.
On the other hand, there are substantial reasons for concluding that the Bill of Attainder Clause may not be regarded as enshrining any general rule distinguishing between the legislative and judicial functions. Congress may pass legislation affecting specific persons in the form of private bills. It may also punish persons who commit contempt before it. So too, one may note that, if Art. I, § 9, cl. 3, immortalizes some notion of the separation of powers at the federal level, then Art. I, § 10, necessarily does the same for the States. But it has long been recognized by this Court that
[w]hether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the State.
Dreyer v. Illinois, 187 U.S. 71, 84; accord, e.g., Reetz v. Michigan, 188 U.S. 505, 507; Carfer v. Caldwell, 200 U.S. 293, 297; Sweezy v. New Hampshire, 354 U.S. 234, 255 (WARREN, C.J., announcing judgment), 256-257 (Frankfurter, J., concurring), 268 (CLARK, J., dissenting). [p474]
The basic flaw in the Court's reasoning, however, is its too narrow view of the legislative process. The Court is concerned to separate the legislative and judicial functions by ensuring that the legislature does not infringe the judicial function of applying general rules to specific circumstances. Congress is held to have violated the Bill of Attainder Clause here because, on the one hand, § 504 does not encompass the whole class of persons having characteristics that would make them likely to call political strikes, and, on the other hand, § 504 does single out a particular group, members of the Communist Party, not all of whom possess such characteristics. Because of this combination of underinclusiveness and overinclusiveness, the Court concludes that Communist Party members were singled out for punishment, thus rejecting the Government's contention that § 504 has solely a regulatory aim.
The Court's conclusion that a statute which is both underinclusive and overinclusive must be deemed to have been adopted with a punitive purpose assumes that legislatures normally deal with broad categories, and attack all of an evil at a time. Or, if partial measures are undertaken, a legislature singles out a particular group for regulation only because the group label is a "shorthand phrase" for traits that are characteristic of the broader evil. But this Court has long recognized in equal protection cases that a legislature may prefer to deal with only part of an evil. See, e.g., Railway Express Agency, Inc. v. New York, 336 U.S. 106; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608; Bryant v. Zimmerman, 278 U.S. 63; Patsone v. Pennsylvania, 232 U.S. 138. And it is equally true that a group may be singled out for regulation without any punitive purpose even when not all members of the group would be likely to engage in the feared conduct.
[I]f the class discriminated [p475] against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be picked out.
Patsone v. Pennsylvania, 232 U.S. at 144. (Emphasis added.) That is, the focus of legislative attention may be the substantially greater likelihood that some members of the group would engage in the feared conduct compared to the likelihood that members of other groups would do so. This is true because legislators seldom deal with abstractions, but with concrete situations and the regulation of specific abuses. Thus, many regulatory measures are enacted after investigation into particular incidents or the practices of particular groups, and after findings by the legislature that the practices disclosed are inimical to the public interest, and should be prevented in the future. Not surprisingly, the resulting legislation may reflect in its specificity the specificity of the preceding legislative inquiry. See United States v. Boston & M. R. Co., 380 U.S. 157, 161-162. But the fact that it does should not be taken, in itself, to be conclusive that the legislature's purpose is punitive. Admittedly, the degree of specificity is a relevant factor -- as when individuals are singled out by name -- but because, in many instances, specificity of the degree here held impermissible may be wholly consistent with a regulatory, rather than a punitive, purpose, the Court's per se approach cuts too broadly, and invalidates legitimate legislative activity.
Putting aside the Court's per se approach based on the nature of the classification specified by the legislation, we must still test § 504 against the traditional definition of the bill of attainder as legislative punishment of particular individuals. In my view, § 504 does not impose punishment, and is not a bill of attainder. [p476]
We have said that "only the clearest proof could suffice" to establish that Congress' purpose was punitive, rather than regulatory. Flemming v. Nestor, 363 U.S. 603, 617. A punitive purpose has been found when it could be said that a statute passed amid the fierce passions aroused by the Civil War bore no rational connection to any permissible legislative purpose. Cummings v. Missouri, 4 Wall. 277, 319, 322; see Dent v. West Virginia, 129 U.S. 114, 128; Hawker v. New York, 170 U.S. 189, 198. The imposition of a particularly harsh deprivation without any discernible legitimate legislative purpose has similarly been characterized as penal. Trop v. Dulles, 356 U.S. 86 (WARREN, C.J., announcing judgment). Similarly a punitive purpose has been found when such a purpose clearly appeared in the legislative history. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 169; United States v. Lovett, 328 U.S. 303, 308-314. In other cases, the analysis is more difficult. We summarized the relevant considerations in Kennedy v. Mendoza-Martinez, supra:
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment -- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.
372 U.S. at 168-169. An application of these criteria to § 504 compels the conclusion that it is regulatory, rather than punitive.
Congress' concern with the possibility of political strikes is not simply a fictional concern advanced to mask a punitive [p477] purpose. Congress has sought to forestall political strikes since 1947, when it adopted § 9(h) of the National Labor Relations Act, which was sustained as a reasonable regulation in American Communications Assn. v. Douds, 339 U.S. 382. Section 504 was adopted as a fairer and more effective method of dealing with the same evil. H.R.Rep. No. 741, 86th Cong., 1st Sess. (1959), p. 33; 1 Leg.Hist. LMRDA 791. Section 9(h) had proved ineffective because many Communists would take the prescribed oath, which meant the only sanction available was a perjury prosecution that presented serious difficulties of proof. See Hearings before the House Committee on Un-American Activities, Communist Infiltration of Vital Industries and Current Communist Techniques in the Chicago, Illinois, Area, 86th Cong., 1st Sess. (1959), pp. 519, 576; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare, Communist Domination of Unions and National Security, 82d Cong., 2d Sess. (1952), p. 54. Moreover, the oath requirement created inequities both because the disqualification imposed was visited on the whole union membership and because the taking of an oath was exacted of all union leaders, many of whom resented the requirement. See American Communications Assn. v. Douds, 339 U.S. at 434-435 (Jackson, J., concurring and dissenting); S.Rep. No. 187, 86th Cong., 1st Sess. (1959), pp. 7, 9; 1 Leg.Hist. LMRDA 403, 405. It was obviously reasonable for Congress to substitute § 504 for § 9(h), and no punitive purpose may be inferred from such congressional action.
Nor can it be denied that § 504 is reasonably related to a permissible legislative objective. In American Communications Assn. v. Douds, we held that
Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to bring about strikes . . . ,
339 U.S. at 391, and therefore Congress could rationally [p478] infer that members of the Communist Party were likely to call political strikes. See also Communist Party v. Subversive Activities Control Board, 367 U.S. 1, 93-94, 112. In 1956, the Subversive Activities Control Board found, after a trial-type hearing, that the Party's principal leaders and a substantial number of its members recognize the disciplinary power of the Soviet Union. Without question, the findings previously made by Congress and the Subversive Activities Control Board afforded a rational basis in 1959 for Congress to conclude that Communists were likely to call political strikes, and sufficiently more likely than others to do so that special measures could appropriately be enacted to deal with the particular threat posed.
In view of Congress' demonstrated concern in preventing future conduct -- political strikes -- and the reasonableness of the means adopted to that end, I cannot conclude that § 504 had a punitive purpose or that it constitutes a bill of attainder. I intimate no opinion on the issues that the Court does not reach.
1. An overbroadness challenge could also be made under the First Amendment on the ground that, in § 504, Congress has too broadly and indiscriminately visited disabilities on a class defined in terms of associational ties. See Aptheker v. Secretary of State, 378 U.S. 500. But the Court expressly disavows decision of First Amendment claims, and I likewise put such questions aside.
2. See, e.g., § 10 of the Clayton Act, 38 Stat. 734, 15 U.S.C. § 20 (1964 ed.) (requiring competitive bidding for certain transactions between a common carrier and other corporations when there are common directors), United States v. Boston & M. R. Co., 380 U.S. 157; § 16(b) of the Securities Exchange Act of 1934, 48 Stat. 896, 15 U.S.C. § 78p(b) (1964 ed.) (providing that profits made by directors, officers, and principal shareholders through short-swing transactions in corporation stock shall inure to benefit of corporation), Blau v. Lehman, 368 U.S. 403, 411-413; § 310(b) of the Trust Indenture Act of 1939, 53 Stat. 1157 (making certain conflicting interests grounds for disqualification of indenture trustees).
3. For a partial listing of similar statutes, see De Veau v. Braisted, 363 U.S. 144, 159 (Frankfurter, J., announcing judgment). De Veau v. Braisted itself sustained against a bill of attainder challenge, without dissent on this issue, a state statute disqualifying felons from holding office in waterfront labor unions.