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ring which contemplates full disclosure of the considerations, specifically, information of a confidential nature pertaining to national security, which induced administrative officers to deny suspension. In four dissenting opinions, Chief Justice Warren, together with Justices Black, Frankfurter, and Douglas, found irreconcilable with a fair hearing and due process the delegation by the Attorney General of his discretion to an inferior officer and the vesting of the latter with power to deny a suspension on the basis of undisclosed evidence which may amount to no more than uncorroborated hearsay. 439 339 U.S. 33 (1950). See also Kimm v. Rosenberg, 363 U.S. 405, 408, 410, 415 (1960), wherein the Court ruled that when, at a hearing on his petition for suspension of a deportation order, an alien invoked the Fifth Amendment in response to questions as to Communist Party membership, and contended that the burden of matter of admission of aliens justifies delegation of power to executive officers to enforce the exclusion of aliens afflicted with contagious diseases by imposing upon the owner of the vessel bringing any such alien into the country a money penalty, collectible before and as a condition of the grant of clearance. 434 If the person seeking admission claims American citizenship, the decision of the Secretary of Labor may be made final, but it must be made after a fair hearing, however summary, and must find adequate support in the evidence. A decision based upon a record from which relevant and probative evidence has been omitted is not a fair hearing. 435 Where the statute made the decision of an immigration inspector final unless an appeal was taken to the Secretary of the Treasury, a person who failed to take such an appeal did not, by an allegation of citizenship, acquire a right to a judicial hearing on habeas corpus. 436 Deportation proceedings are not criminal prosecutions within the meaning of the Bill of Rights. 437 The authority to deport is drawn from the power of Congress to regulate the entrance of aliens and impose conditions upon their continued liberty to reside within the United States. Findings of fact reached by executive officers after a fair, though summary deportation hearing may be made conclusive. 438 In Wong Yang Sung v. McGrath, 439 however, VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00084 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1445 proving such affiliation was on the Government, it was incumbent on the alien to supply the information inasmuch as the Government had no statutory discretion to suspend deportation of a Communist. Justices Douglas, Black, Brennan, and Chief Justice Warren dissented on the ground that exercise of the privilege is a neutral act, supporting neither innocence nor guilt and may not be utilized as evidence of dubious character. Justice Brennan also thought the Government was requiring the alien to prove non-membership when no one had intimated that he was a Communist. 440 5 U.S.C. §§ 551 et seq. 441 Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106 (1927). See also Mahler v. Eby, 264 U.S. 32, 41 (1924). Although in Heikkila v. Barber, 345 U.S. 229 (1953), the Court held that a deportation order under the Immigration Act of 1917 might be challenged only by habeas corpus, in Shaughnessy v. Pedreiro, 349 U.S. 48 (1955), it established that, under the Immigration Act of 1952, 8 U.S.C. § 1101, the validity of a deportation order also may be contested in an action for declaratory judgment and injunctive relief. Also, a collateral challenge must be permitted to the use of a deportation proceeding as an element of a criminal offense where effective judicial review of the deportation order has been denied. United States v. Mendoza-Lopez, 481 U.S. 828 (1987). 442 198 U.S. 253 (1905). 443 Ng Fung Ho v. White, 259 U.S. 276, 281 (1922). 444 Zadvydas v. Davis, 533 U.S. 678, 691 (2001) (construing a statute so as to avoid a ‘‘serious constitutional threat’’ (id. at 699), and recognizing a ‘‘presumptively reasonable’’ detention period of six months for removable aliens). 445 Ludecke v. Watkins, 335 U.S. 160 (1948). Three of the four dissenting Justices, Douglas, Murphy, and Rutledge, argued that even an enemy alien could not be deported without a fair hearing. the Court intimated that a hearing before a tribunal which did not meet the standards of impartiality embodied in the Administrative Procedure Act 440 might not satisfy the requirements of due process of law. To avoid such constitutional doubts, the Court construed the law to disqualify immigration inspectors as presiding officers in deportation proceedings. Except in time of war, deportation without a fair hearing or on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus. 441 In contrast with the decision in United States v. Ju Toy 442 that a person seeking entrance to the United States was not entitled to a judicial hearing on his claim of citizenship, a person arrested and held for deportation is entitled to a day in court if he denies that he is an alien. 443 Because aliens within the United States are protected by due process, Congress must give ‘‘clear indication’’ of an intent to authorize indefinite detention of illegal aliens, and probably must also cite ‘‘special justification,’’ as, e.g., for ‘‘suspected terrorists.’’ 444 A closely divided Court has ruled that in time of war the deportation of an enemy alien may be ordered summarily by executive action; due process of law does not require the courts to determine the sufficiency of any hearing which is gratuitously afforded to the alien. 445 Judicial Review of Administrative Proceedings.—To the extent that constitutional rights are involved, due process of law VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00085 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1446 AMENDMENT 5—RIGHTS OF PERSONS 446 298 U.S. 38 (1936). 447 298 U.S. at 51–54. Justices Brandeis, Stone, and Cardozo, while concurring in the result, took exception to this proposition. 448 FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942); FPC v. Hope Gas Co., 320 U.S. 591 (1944). 449 FPC v. Hope Gas Co., 320 U.S. 591, 602 (1944). 450 327 U.S. 1 (1946). 451 339 U.S. 763 (1950). Justices Douglas, Black, and Burton dissented. 452 339 U.S. 103 (1950). imports a judicial review of the action of administrative or executive officers. This proposition is undisputed so far as questions of law are concerned, but the extent to which the courts should and will go in reviewing determinations of fact has been a highly controversial issue. In St. Joseph Stock Yards Co. v. United States, 446 the Court held that upon review of an order of the Secretary of Agriculture establishing maximum rates for services rendered by a stockyard company, due process required that the court exercise its independent judgment upon the facts to determine whether the rates were confiscatory. 447 Subsequent cases sustaining rate orders of the Federal Power Commission have not dealt explicitly with this point. 448 The Court has said simply that a person assailing such an order ‘‘carries the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences.’’ 449 There has been a division of opinion in the Supreme Court with regard to what extent, if at all, proceedings before military tribunals should be reviewed by the courts for the purpose of determining compliance with the due process clause. In In re Yamashita, 450 the majority denied a petition for certiorari and petitions for writs of habeas corpus to review the conviction of a Japanese war criminal by a military commission sitting in the Philippine Islands. It held that since the military commission, in admitting evidence to which objection was made, had not violated any act of Congress, a treaty, or a military command defining its authority, its ruling on evidence and on the mode of conducting the proceedings were not reviewable by the courts. Again, in Johnson v. Eisentrager, 451 the Court overruled a lower court decision, which in reliance upon the dissenting opinion in the Yamashita case, had held that the due process clause required that the legality of the conviction of enemy alien belligerents by military tribunals should be tested by the writ of habeas corpus. Without dissent, the Court, in Hiatt v. Brown, 452 reversed the judgment of a lower court which had discharged a prisoner serving a sentence imposed by a court-martial because of errors whereby the prisoner had been deprived of due process of law. The Court VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00086 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1447 453 339 U.S. at 111. 454 346 U.S. 137, 140–41, 146, 147, 148, 150, 153 (1953). 455 367 U.S. 497, 540, 541 (1961). The internal quotation is from Hurtado v. California, 110 U.S. 516, 532 (1884). Development of substantive due process is briefly noted, above under ‘‘Scope of the Guaranty’’ and is treated more extensively under the Fourteenth Amendment. held that the court below had erred in extending its review, for the purpose of determining compliance with the due process clause, to such matters as the propositions of law set forth in the staff judge advocate’s report, the sufficiency of the evidence to sustain conviction, the adequacy of the pre-trial investigation, and the competence of the law member and defense counsel. In summary, Justice Clark wrote: ‘‘In this case the court-martial had jurisdiction of the person accused and the offense charged, and acted within its lawful powers. The correction of any errors it may have committed is for the military authorities which are alone authorized to review its decision.’’ 453 Similarly, in Burns v. Wilson, 454 the Court denied a petition for the writ to review a conviction by a military tribunal on the Island of Guam wherein the petitioners asserted that their imprisonment resulted from proceedings violative of their basic constitutional rights. Four Justices, with whom Justice Minton concurred, maintained that judicial review is limited to determining whether the military tribunal, or court-martial, had given fair consideration to each of petitioners’ allegations, and does not embrace an opportunity ‘‘to prove de novo’’ what petitioners had ‘‘failed to prove in the military courts.’’ According to Justice Minton, however, if the military court had jurisdiction, its action is not reviewable. Substantive Due Process Justice Harlan, dissenting in Poe v. Ullman, 455 observed that one view of due process, ‘‘ably and insistently argued . . . , sought to limit the provision to a guarantee of procedural fairness.’’ But, he continued, due process ‘‘in the consistent view of this Court has ever been a broader concept . . . . Were due process merely a procedural safeguard it would fail to reach those situations where the deprivation of life, liberty or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three. . . . Thus the guaranties of due process, though having their roots in Magna Carta’s ‘per legem terrae‘ and considered as procedural safeguards ‘against executive usurpation and tyranny,’ have in this country ‘become bulwarks also against arbitrary legislation.’’’ Discrimination.—‘‘Unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guar- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00087 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1448 AMENDMENT 5—RIGHTS OF PERSONS 456 Detroit Bank v. United States, 317 U.S. 329, 337 (1943); Helvering v. Lerner Stores Corp., 314 U.S. 463, 468 (1941). 457 Steward Machine Co. v. Davis, 301 U.S. 548, 585 (1937). See also Currin v. Wallace, 306 U.S. 1, 13–14 (1939). 458 Truax v. Corrigan, 257 U.S. 312, 331 (1921). See also Hirabayashi v. United States, 320 U.S. 81, 100 (1943). 459 347 U.S. 497, 499–500 (1954). 460 347 U.S. 483 (1954). With respect to race discrimination, the Court had earlier utilized its supervisory authority over the lower federal courts and its power to construe statutes to reach results it might have based on the equal protection clause if the cases had come from the States. E.g., Hurd v. Hodge, 334 U.S. 24 (1948); Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Railroad Trainmen v. Howard, 343 U.S. 768 (1952). See also Thiel v. Southern Pacific Co., 328 U.S. 217 (1946). anty against discriminatory legislation by Congress.’’ 456 At other times, however, the Court assumed that ‘‘discrimination, if gross enough, is equivalent to confiscation and subject under the Fifth Amendment to challenge and annulment.’’ 457 The theory that was to prevail seems first to have been enunciated by Chief Justice Taft, who observed that the due process and equal protection clauses are ‘‘associated’’ and that ‘‘[i]t may be that they overlap, that a violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not coterminous. . . . [Due process] tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty and property, which the Congress or the legislature may not withhold. Our whole system of law is predicated on the general, fundamental principle of equality of application of the law.’’ 458 Thus, in Bolling v. Sharpe, 459 a companion case to Brown v. Board of Education, 460 the Court held that segregation of pupils in the public schools of the District of Columbia violated the due process clause. ‘‘The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The ‘equal protection of the laws’ is a more explicit safeguard of prohibited unfairness than ‘due process of law,’ and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.’’ ‘‘Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public education is not reasonably related to any proper govern- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00088 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1449 461 Buckley v. Valeo, 424 U.S. 1, 93 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 214-18 (1995). 462 Frontiero v. Richardson, 411 U.S. 677 (1973); Califano v. Goldfarb, 430 U.S. 199 (1977). But see Rostker v. Goldberg, 453 U.S. 57 (1981); Califano v. Jobst, 434 U.S. 47 (1977). 463 Compare Jiminez v. Weinberger, 417 U.S. 628 (1974) with Mathews v. Lucas, 427 U.S. 495 (1976). 464 Department of Agriculture v. Murry, 413 U.S. 508 (1973). See also Department of Agriculture v. Moreno, 413 U.S. 528 (1973). 465 Richardson v. Belcher, 404 U.S. 78, 81 (1971); FCC v. Beach Communications, 508 U.S. 307 (1993) (exemption from cable TV regulation of facilities that serve only dwelling units under common ownership); Lyng v. Castillo, 477 U.S. 635 (1986) (Food Stamp Act limitation of benefits to households of related persons who prepare meals together). With respect to courts and criminal legislation, see Hurtado v. United States, 410 U.S. 578 (1973); Marshall v. United States, 414 U.S. 417 (1974); United States v. MacCollom, 426 U.S. 317 (1976). 466 Hill v. United States ex rel. Weiner, 300 U.S. 105, 109 (1937). See also District of Columbia v. Brooke, 214 U.S. 138 (1909); Panama R.R. v. Johnson, 264 U.S. 375 (1924); Detroit Bank v. United States, 317 U.S. 329 (1943). mental objective and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause.’’ ‘‘In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.’’ ‘‘Equal protection analysis in the Fifth Amendment area, is the same as that under the Fourteenth Amendment.’’ 461 So saying, the court has applied much of its Fourteenth Amendment jurisprudence to strike down sex classifications in federal legislation, 462 reached classifications with an adverse impact upon illegitimates, 463 and invalidated some welfare assistance provisions with some interesting exceptions. 464 However, almost all legislation involves some degree of classification among particular categories of persons, things, or events, and, just as the equal protection clause itself does not outlaw ‘‘reasonable’’ classifications, neither is the due process clause any more intolerant of the great variety of social and economic legislation typically containing what must be arbitrary line-drawing. 465 Thus, for example, the Court has sustained a law imposing greater punishment for an offense involving rights of property of the United States than for a like offense involving the rights of property of a private person. 466 A veterans’ law which extended certain educational benefits to all veterans who had served ‘‘on active duty’’ and thereby excluded conscientious objectors from eligibility was held to be sustainable, it being rational for Congress to have determined that the disruption caused by military service was qualitatively and quantitatively dif- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00089 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1450 AMENDMENT 5—RIGHTS OF PERSONS 467 Johnson v. Robison, 415 U.S. 361 (1974). See also Schlesinger v. Ballard, 419 U.S. 498 (1975) (military law that classified men more adversely than women deemed rational because it had the effect of compensating for prior discrimination against women). Wayte v. United States, 470 U.S. 598 (1985) (selective prosecution of persons who turned themselves in or were reported by others as having failed to register for the draft does not deny equal protection, there being no showing that these men were selected for prosecution because of their protest activities). 468 Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Thus, the power over immigration and aliens permitted federal discrimination on the basis of alienage, Hampton, supra (employment restrictions like those previously voided when imposed by States), durational residency, Mathews v. Diaz, 426 U.S. 67 (1976) (similar rules imposed by States previously voided), and illegitimacy, Fiallo v. Bell, 430 U.S. 787 (1977) (similar rules by States would be voided). Racial preferences and discriminations in immigration have had a long history, e.g., The Chinese Exclusion Cases, 130 U.S. 581 (1889), and the power continues today, e.g., Dunn v. INS, 499 F.2d 856, 858 (9th Cir.), cert. denied, 419 U.S. 1106 (1975); Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979), cert. denied, 446 U.S. 957 (1980), although Congress has removed most such classifications from the statute books. 469 United States v. New York S.S. Co., 269 U.S. 304 (1925). 470 United States v. Carolene Products Co., 304 U.S. 144 (1938); Carolene Products Co. v. United States, 323 U.S. 18 (1944). 471 Kentucky Whip & Collar Co. v. Illinois Cent. R.R., 299 U.S. 334 (1937). ferent from that caused by alternative service, and for Congress to have so provided to make military service more attractive. 467 ‘‘The federal sovereign, like the States, must govern impartially. . . . [B]ut . . . there may be overriding national interests which justify selective federal legislation that would be unacceptable for an individual State.’’ 468 The paramount federal power over immigration and naturalization is the principal example, although there are undoubtedly others, of the national government being able to classify upon some grounds—alienage, naturally, but also other suspect and quasi-suspect categories as well—that would result in invalidation were a state to enact them. The instances may be relatively few, but they do exist. Congressional Police Measures.—Numerous regulations of a police nature, imposed under powers specifically granted to the Federal Government, have been sustained over objections based on the due process clause. Congress may require the owner of a vessel entering United States ports, and on which alien seamen are afflicted with specified diseases, to bear the expense of hospitalizing such persons. 469 It may prohibit the transportation in interstate commerce of filled milk 470 or the importation of convict-made goods into any State where their receipt, possession, or sale is a violation of local law. 471 It may require employers to bargain collectively with representatives of their employees chosen in a manner prescribed by law, to reinstate employees discharged in violation of law, and to permit use of a company-owned hall for union meet- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00090 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1451 472 E.g., Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937); NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); Railway Employees’ Dep’t v. Hanson, 351 U.S. 225 (1956); NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938). 473 Ex parte Jackson, 96 U.S. 727 (1878); Rowan v. Post Office Dep’t, 397 U.S. 728 (1970). 474 St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 (1936); Denver Union Stock Yards Co. v. United States, 304 U.S. 470 (1938). 475 320 U.S. 591 (1944). The result of this case had been foreshadowed by the opinion of Justice Stone in FPC v. Natural Gas Pipeline Co., 315 U.S. 575, 586 (1942), to the effect that the Commission was not bound to the use of any single formula or combination of formulas in determining rates. 476 A. T. & T. Co. v. United States, 299 U.S. 232 (1936); United States v. New York Tel. Co., 326 U.S. 638 (1946); Northwestern Co. v. FPC, 321 U.S. 119 (1944). 477 Valvoline Oil Co. v. United States, 308 U.S. 141 (1939); Champlin Rfg. Co. v. United States, 329 U.S. 29 (1946). ings. 472 Subject to First Amendment considerations, Congress may regulate the postal service to deny its facilities to persons who would use them for purposes contrary to public policy. 473 Congressional Regulation of Public Utilities.—Inasmuch as Congress, in giving federal agencies jurisdiction over various public utilities, usually has prescribed standards substantially identical with those by which the Supreme Court has tested the validity of state action, the review of agency orders seldom has turned on constitutional issues. In two cases, however, maximum rates prescribed by the Secretary of Agriculture for stockyard companies were sustained only after detailed consideration of numerous items excluded from the rate base or from operating expenses, apparently on the assumption that error with respect to any such item would render the rates confiscatory and void. 474 A few years later, in FPC v. Hope Gas Co., 475 the Court adopted an entirely different approach. It took the position that the validity of the Commission’s order depended upon whether the impact or total effect of the order is just and reasonable, rather than upon the method of computing the rate base. Rates which enable a company to operate successfully, to maintain its financial integrity, to attract capital, and to compensate its investors for the risks assumed cannot be condemned as unjust and unreasonable even though they might produce only a meager return in a rate base computed by the ‘‘present fair value’’ method. Orders prescribing the form and contents of accounts kept by public utility companies, 476 and statutes requiring a private carrier to furnish the Interstate Commerce Commission with information for valuing its property 477 have been sustained against the objection that they were arbitrary and invalid. An order of the Secretary of Commerce directed to a single common carrier by water requir- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00091 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1452 AMENDMENT 5—RIGHTS OF PERSONS 478 Isbrandtsen-Moller Co. v. United States, 300 U.S. 146 (1937). 479 St. Louis S.W. Ry. v. United States, 245 U.S. 136, 143 (1917). 480 New England Divisions Case, 261 U.S. 184 (1923). 481 Dayton-Goose Creek Ry. v. United States, 263 U.S. 456, 481, 483 (1924). 482 Chicago, I. & L. Ry. v. United States, 270 U.S. 287 (1926). Cf. Seaboard Air Line Ry. v. United States, 254 U.S. 57 (1920). 483 Assigned Car Cases, 274 U.S. 564, 575 (1927). 484 United States v. Delaware & Hudson Co., 213 U.S. 366, 405, 411, 415 (1909). 485 United States v. Lowden, 308 U.S. 225 (1939). 486 Louisville & Nashville R.R. v. Mottley, 219 U.S. 467 (1911). ing it to file a summary of its books and records pertaining to its rates was also held not to violate the Fifth Amendment. 478 Congressional Regulation of Railroads.—Legislation or administrative orders pertaining to railroads have been challenged repeatedly under the due process clause but seldom with success. Orders of the Interstate Commerce Commission establishing through routes and joint rates have been sustained, 479 as has its division of joint rates to give a weaker group of carriers a greater share of such rates where the proportion a

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