CRS Annotated Constitution

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Unlike the exclusion proceedings,1223 deportation proceedings afford the alien a number of constitutional rights: a right against self–incrimination,1224 protection against unreasonable searches and seizures,1225 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment,1226 a right to bail,1227 a right to procedural due process,1228 a right to counsel,1229 a right to notice of charges and hearing,1230 as well as a right to cross–examine.1231

Notwithstanding these guarantees, the Supreme Court has upheld a number of statutory deportation measures as not uncon[p.281]stitutional. The Internal Security Act of 1950, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.1232 Nor was it unconstitutional to deport under the Alien Registration Act of 19401233 a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to treminate its hospitality ad libitum.1234 And a statutory provision1235 making it a felony for an alien against whom a specified order of deportation is outstanding “to willfully fail or refuse to make timely application for travel or other documents necessary to his departure” was not on its face void for “vagueness.”1236


Persons Who May Be Released From Debt

In an early case on circuit, Justice Livingston suggested that inasmuch as the English statutes on the subject of bankruptcy from the time of Henry VIII down had applied only to traders it might “well be doubted, whether an act of Congress subjecting to such a law every description of persons within the United States, would comport with the spirit of the powers vested in them in relation to this subject.”1237 Neither Congress nor the Supreme Court has ever accepted this limited view. The first bankruptcy law, passed in 1800, departed from the English practice to the extent of including bankers, brokers, factors and underwriters as well as traders.1238 Asserting that the narrow scope of the English statutes was a mere matter of policy, which by no means entered into the nature of such laws, Justice Story defined bankruptcy legislation in the sense of the Constitution as a law making provisions for cases of persons failing to pay their debts.1239

This interpretation has been ratified by the Supreme Court. In Hanover National Bank v. Moyses,1240 it held valid the Bankruptcy Act of 1898, which provided that persons other than traders might[p.282]become bankrupts and that this might be done on voluntary petition. The Court has given tacit approval to the extension of the bankruptcy laws to cover practically all classes of persons and corporations,1241 including even municipal corporations1242 and wage–earning individuals. The Bankruptcy Act has, in fact been amended to provide a wage–earners’ extension plan to deal with the unique problems of debtors who derive their livelihood primarily from salaries or commissions. In furthering the implementation of this plan, the Supreme Court has held that a wage earner may make use of it, notwithstanding the fact he has been previously discharged in bankruptcy within the last six years.1243

Supplement: [P. 281, add to text at end of section:]

An alien unlawfully in the country “has no constitutional right to assert selective enforcement as a defense against his deportation.” 60


1223 See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), where the Court noted that “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”
1224 Kimm v. Rosenberg, 363 U.S. 405 (1960).
1225 Abel v. United States, 362 U.S. 217, 229 (1960).
1226 Marcello v. Bonds, 349 U.S. 302 (1955).
1227 Carlson v. Landon, 342 U.S. 524, 540 (1952).
1228 Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950).
1229 8 U.S.C. Sec. 1252 (b)(2).
1230 8 U.S.C. Sec. 1252 (b)(1).
1231 8 U.S.C. Sec. 1252 (b)(3).
1232 Carlson v. Landon, 342 U.S. 524 (1952).

Supplement: [P. 281, add to n.1232:]

In Reno v. Flores, 507 U.S. 292 (1993) , the Court upheld an INS regulation providing for the ongoing detention of juveniles apprehended on suspicion of being deportable, unless parents, close relatives, or legal guardians were available to accept release, as against a substantive due process attack.

1233 54 Stat. 670 . For existing statutory provisions as to deportation, see 8 U.S.C. Sec. 1251 et seq.
1234 Carlson v. Landon, 342 U.S. 524 (1952).
1235 8 U.S.C. Sec. 1252 (e).
1236 United States v. Spector, 343 U.S. 169 (1952).
1237 Adams v. Storey, 1 Fed. Cas. 141, 142 (No. 66) (C.C.D.N.Y. 1817).
1238 2 Stat. 19 (1800).
1239 2 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 1113.
1240 186 U.S. 181 (1902).
1241 Continental Bank v. Rock Island Ry., 294 U.S. 648, 670 (1935).
1242 United States v. Bekins, 304 U.S. 27 (1938), distinguishing Ashton v. Cameron County Dist., 298 U.S. 513 (1936).
1243 Perry v. Commerce Loan Co., 383 U.S. 392 (1966).

Supplement Footnotes

60 Reno v. American–Arab Anti–Discrimination Comm., 525 U.S. 471, 488 (1999) .
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