The Alien Registration Act of 1940's authorization of deportation for legal residents based on Communist Party membership, even past, does not violate the Fifth Amendment, the First Amendment, Due Process, nor the Ex Post Facto Clause.
The case was a consolidation of three similar cases, Mascitti v. McGrath, Coleman v. McGrath, and Harisiades v. Shaughnessy, all brought by long time legal residents of the United States who were in the process of being deported under the Alien Registration Act for their past participation in communist political parties.
The Alien Registration Act of 1940, also known as the Smith Act, authorizes the deportation of legal residents of the United States as a penalty for advocacy to overthrow the government under title 2. Membership of communist parties was at the time treated automatically as advocacy for overthrow of the government.
The 1951 Supreme Court case Dennis v. United States upheld prosecutions under the Smith Act for mere advocacy, as opposed to direct action, to violently overthrow the government as constitutional.[1]
In the United States, legal residents, although not citizens, still enjoy most of the same constitutional rights. Under the Fourteenth Amendment's Equal Protection Clause, all people within the jurisdiction of the U.S. are promised equal protection under the law.[2] But, there are some rights and privileges legal residents do not have, such as voting in federal elections and running for public office. The First Amendment does protect non-citizens, but not in all situations. For example, people applying for residency, visas, or citizenship will be asked and investigated about their affiliations and can be denied based on what would normally be protected under the freedom of association, speech, etc.[3][4]
Ex-Post Facto Clause
Look up ex post facto in Wiktionary, the free dictionary.
Ex post facto is a legal term used to describe laws which retroactively punish actions, typically in the criminal context. Article 1, § 9 of the United States Constitution prohibits Congress from enacting any laws which apply ex post facto, this is referred to as the constitution's Ex Post Facto Clause.[5]
Case facts
Plaintiffs
Harisiades c. 1950
Peter Harisiades[6] was a Greek immigrant who came to the United States at 13 years old with his father in 1916. At the time of this case, he was married with two kids; his wife and kids were all American citizens. He joined the Communist Party USA (then the Worker's Party) in 1925 and was kicked out of the organization in 1939 as a part of the party's attempt to protect its non-citizen members, whose membership put them in danger of deportation.[7] A warrant was issued for his deportation on December 16, 1948.[8] Harisiades was represented at the Supreme Court by Carol Weiss King.[9]
Luigi Mascitti[6] was an Italian immigrant who came to the country in 1920 at 16 years old. At the time of the case, he was married to a fellow legal resident and had one American-born child. Between 1923 and 1929, he was a member of the Communist Party or its youth wing.[7]
Dora Coleman[6] was a Jewish Russian immigrant who came to the United States in 1914 at the age of 13. After her arrival, she began working at sweatshops in Philadelphia and eventually became a union organizer in her teens.[10] At the time of the case, she was married to an American citizen, had three American-born children, and owned a bric-à-brac shop.[7][10] She applied for naturalization in 1944.[10] She was represented by David Rein.[11]
All plaintiffs were members of the parties in question prior to the passing of the Alien Registration Act in 1940 and had been in the US for over 30 years.[12]
The cases of Harisiades, Mascitti, and Coleman were consolidated into one due to the similarities in facts. The ruling was 6-2, with Justices Douglas and Black in Dissent. Justice Tom C. Clark took no part in the consideration or decision of the case.[7]
Majority
Justice Robert H. Jackson wrote for the majority. The majority affirmed the lower court's ruling on the case, rejecting the plaintiff's request to prevent their deportations. It concluded that the law and its application in these cases did not deprive the residents of liberty without due process in violation of the Fifth Amendment, constitute an overstep by Congress,[12] violate the First Amendment's freedom of speech/assembly clause, cause severe hardship as to violate the Due Process Clause, nor constitute an unconstitutional ex post facto law.[7]
The court held that because deportation is classified as a civil penalty, as opposed to a criminal punishment, it is not subject to the Ex Post Facto Clause,[13][14] describing it as "simply a refusal by the government to harbor persons whom it does not want".[7]
Jackson also found immigration related-legislation to be mostly immune from substantive due process,[12] describing it as "so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference",[7] while also acknowledging deportation may be “cruel”.[10]
Frankfurter concurrence
Justice Felix Frankfurter wrote in concurrence with the majority opinion. His opinion focused on Congress holding the primary responsibility on matters relating to naturalization,[15] writing:
... [Congress] decided to restrict the right of immigration about seventy years ago, this Court thereupon and ever since has recognized that the determination of a selective and exclusionary immigration policy was for the Congress and not for the Judiciary. The conditions for entry of every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control.[7]
Douglas dissent
Justice William O. Douglas wrote in dissent of the majority opinion, with which Justice Hugo Black concurred. His primary argument was that the Alien Registration Act punished past belief and ideology, not conduct, and therefore violated the deportee's freedom of speech. He writes,
There are two possible bases for sustaining this Act:
(1) A person who was once a Communist is tainted for all time, and forever dangerous to our society; or (2) Punishment through banishment from the country may be placed upon an alien not for what he did, but for what his political views once were.
Each of these is foreign to our philosophy. We repudiate our traditions of tolerance and our articles of faith based upon the Bill of Rights when we bow to them by sustaining an Act of Congress which has them as a foundation.[7]
Following the ruling, Dora Coleman could not be deported because the USSR refused to take her. Stuck in a legal limbo, she stayed in Philadelphia and died of a stroke in her early sixties after living in fear of detention.[10]
Harisiades v. Shaughnessy had an impact on both immigration and First Amendment law.[16][17]
↑ "Post-Dennis Prosecutions Under the Smith Act". Indiana Law Journal. 31 (1). Maurer School of Law: Indiana University. Archived from the original on 28 July 2024. Retrieved 24 August 2024– via Maurer Law Journals at Digital Repository.
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