SUPREME COURT OF UNITED STATES
Robert F. Kennedy, Attorney General of the United States
Vs.
Francisco Mendoza-Martinez. Dean Rusk, Secretary of State
Nos. 2, 3.
Reargued Dec. 4 and 5, 1962.
Decided Feb. 18, 1963.
[Syllabus from pages 144-145 intentionally omitted]
No. 2:
Bruce J. Terris, Washington, D.C., for appellant.

Thomas R. Davis, for appellee.
No. 3:
J. William Doolittle, Washington, D.C., for appellant.
Leonard B. Boudin, New York City, for appellee.
Mr. Justice GOLDBERG delivered the opinion of the Court.
We are called upon in these two cases to decide the grave and fundamental problem, common to
both, of the constitutionality of Acts of Congress which divest an American of his citizenship for
'(d)eparting from or remaining outside of the jurisdiction of the United States in time of war or * * *
national emergency for the purpose of evading or avoiding training and service' in the Nation's
armed forces.1

I. THE FACTS.

A. Mendoza-Martinez--No. 2.

The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this
country in 1922 and therefore acquired American citizenship by birth. By reason of his parentage,
he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In
1942 he departed from this country and went to Mexico solely, as he admits, for the purpose of
evading military service in our armed forces. He concedes that he remained there for that sole
purpose until November 1946, when he voluntarily returned to this country. In 1947, in the United
States District Court for the Southern District of California, he pleaded guilty to and was convicted
of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of
1940.2 He served the imposed sentence of a year and a day. For all that appears in the record, he
was, upon his release, allowed to reside undisturbed in this country until 1953, when, after a lapse
of five years, he was served with a warrant of arrest in deportation proceedings. This was premised
on the assertion that, by remaining outside the United States to avoid military service after
September 27, 1944, when § 401(j) took effect, he had lost his American citizenship. Following
hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that
Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the
Department of Justice, which dismissed his appeal.

Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court
for the Southern District of California, seeking a declaration of his status as a citizen, of the
unconstitutionality of § 401(j), and of the voidness of all orders of deportation directed against him.
A single-judge District Court in an unreported decision entered judgment against Mendoza-Martinez
in 1955, holding that by virtue of § 401(j), which the court held to be constitutional, he had lost his
nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The
Court of Appeals for the Ninth Circuit affirmed the judgment[1956] USCA9 404; , 238 F.2d 239.
This Court, in 1958, Mendoza-Martinez v. Mackey, [1958] USSC 60; 356 U.S. 258, 78 S.Ct. 713, 2
L.Ed.2d 757, granted certiorari, vacated the judgment, and remanded the cause to the District Court
for reconsideration in light of its decision a week earlier in Trop v. Dulles, [1958] USSC 57; 356
U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596.

On September 24, 1958, the District Court announced its new decision, also unreported, that in light
of Trop § 401(j) is unconstitutional because not based on any 'rational nexus * * * between the
content of a specific power in Congress and the action of Congress in carrying that power into
execution.' On direct appeal under 28 U.S.C. § 1252, this Court noted probable jurisdiction, Mackey
v. Mendoza-Martinez, 359 U.S. 933, 79 S.Ct. 648, 3 L.Ed.2d 635, and then of its own motion
remanded the cause, this time with permission to the parties to amend the pleadings to put in issue
the question of whether the facts as determined on the draft-evasion conviction in 1947 collaterally
estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American
citizenship while in Mexico. Mackey v. Mendoza-Martinez, [1960] USSC 54; 362 U.S. 384, 80
S.Ct. 785, 4 L.Ed.2d 812.

The District Court on remand held that the Government was not collaterally estopped because the
1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court,
however, reaffirmed its previous holding that § 401(j) is unconstitutional, adding as a further basis
of invalidity that § 401(j) is 'essentially penal in character and deprives the plaintiff of procedural
due process. * * * (T)he requirements of procedural due process are not satisfied by the
administrative hearing of the Immigration Service nor in this present proceedings.'3 The Attorney
General's current appeal is from this decision. Probable jurisdiction was noted on February 20,
1961, Rogers v. Mendoza-Martinez, 365 U.S. 809, 81 S.Ct. 691, 5 L.Ed.2d 689. The case was
argued last Term, and restored to the calendar for reargument this Term[1962] USSC 45; , 369 U.S.
832, 82 S.Ct. 863, 7 L.Ed.2d 841.

B. Cort--No. 3.

Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike
Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise
American citizens by birth. Following receipt of his M.D. degree from the Yale University School
of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research
Fellow at Cambridge University. He had earlier registered in timely and proper fashion for the draft
and shortly before his departure supplemented his regular Selective Service registration by
registering under the newly enacted Doctors Draft Act.4 In late 1951 he received a series of letters
from the American Embassy in London instructing him to deliver his passport to it to be made 'valid
only for return to the United States.' He did not respond to these demands because, he now says in
an affidavit filed in the trial court in this proceeding, 'I believed that they were unlawful and I did
not wish to subject myself to this and similar forms of political persecution then prevalent in the
United States. * * * I was engaged in important research and teaching work in physiology and I
desired to continue earning a livelihood for my family.' Cort had been a member of the Communist
Party while he was a medical student at Yale from 1946 to 1951, except for the academic year
1948--1949 when he was in England. In late 1952, while still in England at Cambridge, he
accepted a teaching position for the following academic year at Harvard University Medical School.
When, however, the school discovered through further correspondence that he had not yet fulfilled
his military obligations, it advised him that it did not regard his teaching position as essential
enough to support his deferment from military service in order to enter upon it. Thereafter, his local
draft board in Brookline, Massachusetts, notified him in February 1953 that his request for
deferment was denied and that he should report within 30 days for a physical examination either in
Brookline or in Frankfurt, Germany. On June 4 and on July 3 the draft board again sent Cort notices
to report for a physical examination, the first notice for examination on July 1 in Brookline, and the
second for examination within 30 days in Frankfurt. He did not appear at either place, and the board
on August 13 ordered him to report for induction on September 14, 1953. He did not report, and
consequently he was indicted in December 1954 for violation of § 12(a) of the Selective Service Act
of 19485 by reason of his failure to report for induction. This indictment is still outstanding. His
complaint in this action states that he did not report for induction because he believed 'that the
induction order was not issued in good faith to secure his military services, that his past political
associations and present physical disabilities made him ineligible for such service, and that he was
being ordered to report back to the United States to be served with a Congressional committee
subpoena or indicted under the Smith Act * * *.' Meanwhile, the British Home Office had refused to
renew his residence permit, and in mid-1954 he and his family moved to Prague, Czechoslovakia,
where he took a position as Senior Scientific Worker at the Cardiovascular Institute. He has lived
there since.

In April 1959, his previous United States passport having long since expired, Cort applied at the
American Embassy in Prague for a new one. His complaint in this action states that he wanted the
passport 'in order to return to the United States with his wife and children so that he might fulfill his
obligations under the Selective Service laws and his wife might secure medical treatment for
multiple sclerosis.' Mrs. Cort received a passport and came to this country temporarily in late 1959,
both for purposes of medical treatment and to facilitate arrangements for her husband's return. Cort's
application, however, was denied on the ground that he had, by his failure to report for induction on
September 14, 1953, as ordered, remained outside the country to avoid military service and thereby
automatically forfeited his American citizenship by virtue of § 349(a)(10) of the Immigration and
Nationality Act of 1952, which had superseded § 401(j). The State Department's Passport Board of
Review affirmed the finding of expatriation, and the Department's legal adviser affirmed the
decision. Cort, through counsel, thereupon brought this suit in the District Court for the District of
Columbia for a declaratory judgment that he is a citizen of the United States, for an injunction
against enforcement of § 349(a)(10) because of its unconstitutionality, and for an order directing
revocation of the certificate of loss of nationality and issuance of a United States passport to him.
Pursuant to Cort's demand, a three-judge court was convened. The court held that he had remained
outside the United States to evade military service, but that § 349(a)(10) is unconstitutional because
'We perceive no substantial difference between the constitutional issue in the Trop case and the one
facing us.' It therefore concluded that Cort is a citizen of this country and enjoined the Secretary of
State from withholding a passport from Cort on the ground that he is not a citizen and from
otherwise interfering with his rights of citizenship. Cort v. Herter, D.C., 187 F.Supp. 683.

The Secretary of State appealed directly to this Court, 28 U.S.C. §§ 1252, 1253, which postponed
the question of jurisdiction to the hearing of the case on the merits. Herter v. Cort, 365 U.S. 808, 81
S.Ct. 691, 5 L.Ed.2d 690. The preliminary question of jurisdiction was affirmatively resolved last
Term, Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809, leaving the issue of the validity of §
349(a)(10) for decision now, after reargument. 369 U.S., at 380, 82 S.Ct. at 794.

Before we consider the essential question in these cases, the constitutionality of §§ 401(j) and
349(a)(10), two preliminary issues peculiar to No. 2 must be discussed.

II. THE THREE-JUDGE COURT ISSUE.

At the threshold in Mendoza-Martinez' case is the question whether the proceeding should have
been heard by a three-judge District Court convened pursuant to 28 U.S.C. § 2282, which requires
such a tribunal as a prerequisite to the granting of any 'interlocutory or permanent injunction
restraining the enforcement, operation or execution of any Act of Congress for repugnance to the
Constitution of the United States * * *.' If § 2282 governs this litigation, we are once again faced
with the prospect of a remand and a new trial, this time by a three-judge panel. We are, however,
satisfied that the case was properly heard by a single district judge, as both parties urge.

In the complaint under which the case was tried the first and second times, Mendoza-Martinez asked
for no injunctive relief, and none was granted. In the amended complaint which he filed in 1960 to
put in issue the question of collateral estoppel, he added a prayer asking the court to adjudge 'that
defendants herein are enjoined and restrained henceforth from enforcing' all deportation orders
against him. However, it is abundantly clear from the amended trial stipulation which was entered
into by the parties and approved by the judge to 'govern the course of the trial,' that the issues were
framed so as not to contemplate any injunctive relief. The first question was articulated only in
terms of whether the Government was 'herein estopped by reason of the indictment and conviction
of plaintiff for (draft evasion) * * * from denying that the plaintiff is now a national and citizen of
the United States.' The second question asked only for a declaration as to whether § 401(j) was
'unconstitutional, either on its face or as applied to the plaintiff herein.' The conclusion that no
request for injunctive relief nor even any contemplation of it attended the case as it went to trial is
borne out by the total lack of reference to injunctive relief in the District Court's memorandum
opinion, findings of fact and conclusions of law, and judgment. See Mendoza-Martinez v. Rogers,
D.C., 192 F.Supp. 1. The relief granted was merely a declaration that the 1944 Amendment 'is
unconstitutional, both on its face and as applied to the plaintiff herein,' and '(t)hat the plaintiff is
now, and ever since the date of his birth has been, a national and citizen of the United States.' Thus,
despite the amendment to Mendoza-Martinez' complaint before the third trial, it is clear that neither
the parties nor the judge at any relevant time regarded the action as one in which injunctive relief
was material to the disposition of the case. Since no injunction restraining the enforcement of §
401(j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge
District Court.

Whether an action solely for declaratory relief would under all circumstances be inappropriate for
consideration by a three-judge court we need not now decide, for it is clear that in the present case
the congressional policy underlying the statute was not frustrated by trial before a single judge. The
legislative history of § 2282 and of its complement, § 2281,6 requiring three judges to hear
injunctive suits directed against federal and state legislation, respectively, indicates that these
sections were enacted to prevent a single federal judge from being able to paralyze totally the
operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive
order. Section 2281 'was a means of protection the increasing body of state legislation regulating
economic enterprise from invalidation by a conventional suit in equity. * * * The crux of the
business is procedural protection against an improvident state-wide doom by a federal court of a
state's legislative policy. This was the aim of Congress * * *.' Phillips v. United States, [1941]
USSC 30; 312 U.S. 246, 250--251[1941] USSC 30; , 61 S.Ct. 480, 483[1941] USSC 30; , 85 L.Ed.
800. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary
costs of the unforeseen and debilitating interruptions in the administration of federal law which
could be wrought by a single judge's order, and the great burdens entailed in coping with harassing
actions brought one after another to challenge the operation of an entire statutory scheme, wherever
jurisdiction over government officials could be acquired, until a judge was ultimately found who
would grant the desired injunction. 81 Cong.Rec. 479--481, 2142--2143 (1937).

The present action, which in form was for declaratory relief and which in its agreed substance did
not contemplate injunctive relief, involves none of the dangers to which Congress was addressing
itself. The relief sought an the order entered affected an Act of Congress in a totally noncoercive
fashion. There was no interdiction of the operation at large of the statute. It was declared
unconstitutional, but without even an injunctive sanction against the application of the statute by the
Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the
Government has been free to continue to apply the statute. That being the case, there is here no
conflict with the purpose of Congress to provide for the convocation of a three-judge court
whenever the operation of a statutory scheme may be immediately disrupted before a final judicial
determination of the validity of the trial court's order can be obtained. Thus there was no reason
whatever in this case to invoke the special and extraordinary procedure of a three-judge court.
Compare Schneider v. Rusk, [1963] USSC 24; 372 U.S. 224, 83 S.Ct. 621, decided this day.

III. THE COLLATERAL-ESTOPPEL ISSUE.

Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to the suggestion of this
Court earlier that year, charged that 'the government of the United States has admitted the fact of his
United States citizenship by virtue of the indictment and judgment of conviction (in 1947 for draft
evasion) * * * and is therefore collaterally estopped now to deny such citizenship * * *.' The
District Court rejected this assertion. Mendoza-Martinez renews it here as an alternative ground for
upholding the judgment entered below 'That the plaintiff is now, and ever since the date of his birth
has been, a national and citizen of the United States.' 192 F.Supp., at 3.

We too reject Mendoza-Martinez' contention on this point. His argument, stated more fully, is as
follows: The Selective Training and Service Act of 1940 applies only to citizens and resident aliens.
Both the indictment and the judgment spoke in terms of his having remained the Mexico for the
entire period from November 15, 1942, until November 1, 1946, when he returned to this country.7
For the period from September 27, 1944, when § 401(j) became effective, until November 1, 1946,
he could not have been in violation of our draft laws unless he remained a citizen of the United
States, since the draft laws do not apply to nonresident aliens. Therefore, he concludes, the
Government must be taken to have admitted that he did not lose his citizenship by remaining outside
the country after September 27, 1944, because it charged him with draft evasion for that period as
well as for the period preceding that date.

It is true that 'as to those matters in issue or points controverted, upon the determination of which
the finding or verdict was rendered,' Cromwell v. County of Sac, [1876] USSC 62; 94 U.S. 351,
353[1876] USSC 62; , 24 L.Ed. 195, the findings in a prior criminal proceeding may estop a party
in a subsequent civil action, Emich Motors Corp. v. General Motors Corp., [1951] USSC 33; 340
U.S. 558, 568--569[1951] USSC 33; , 71 S.Ct. 408, 413 414[1951] USSC 33; , 95 L.Ed. 534, and
that the United Staes may be estopped to deny even an erroneous prior determination of status,
United States v. Moser, [1924] USSC 198; 266 U.S. 236, 45 S.Ct. 66, 69 L.Ed. 262. However,
Mendoza-Martinez' citizenship status was not at issue in his trial for draft evasion. Putting aside the
fact that he pleaded guilty, which in itself may support the conclusion that his citizenship status was
not litigated and thereby without more preclude his assertion of estoppel,8 the basic flaw in his
argument is in the assertion that he was charged with a continuing violation of the draft laws while
he remained in Mexico, particularly after September 27, 1944, the date on which § 401(j) became
effective. He was in fact charged with a violation 'on or about November 15, 1942,' because he 'did
knowingly evade service * * * in that he did knowingly depart from the United States and go to a
foreign county, namely: Mexico, for the purpose of evading service * * *.' This constituted the
alleged violation. The additional language that he 'did there remain until on or about November 1,
1946,' was merely surplusage in relation to the substantive offense, although it might, for example,
serve a purpose in relation to problems connected with the tolling of the statute of limitations. No
language appears charging the elements of violation--knowledge and purpose to evade in
connection with it. The only crime charged is what happened 'on or about November 15, 1942,' and
conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that
date,9 in nowise estopped the Government with reference to his status after September 27, 1944.
The trial court's judgment was worded no differently. Mendoza-Martinez was convicted of:

'Having on or about November 15th 1942, knowingly departed from the United States to Mexico,
for the purpose of evading service in the land or naval forces of the United States and having
remained there until on or about November 1st 1946.'

Again, the language relating to the time during which Mendoza-Martinez remained in Mexico was
not tied to the words stating knowledge and purpose to evade service. Thus, the conviction entailed
no actual or necessary finding about Mendoza-Martinez' citizenship status between September 27,
1944, and November 1, 1946, and the Government was not estopped from denying his citizenship in
the present proceedings.

IV. THE CONSTITUTIONAL ISSUES.

A. Basic Principles.

Since the validity of an Act of Congress is involved, we begin our analysis mindful that the function
we are now discharging is 'the gravest and most delicate duty that this Court is called upon to
perform.' Blodgett v. Holden, [1928] USSC 22; 275 U.S. 142, 148[1928] USSC 22; , 48 S.Ct. 105,
107[1928] USSC 22; , 72 L.Ed. 206 (separate opinion of Holmes, J.). This responsibility we here
fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of
our Constitution.

We deal with the contending constitutional arguments in the context of certain basic and sometimes
conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the
Fourteenth Amendment to the Constitution, which speaks in the most positive terms.10 The
Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights.11 While
it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of
which Congress in the exercise of its powers may constitutionally exact. One of the most important
of these is to serve the country in time of war and national emergency. The powers of Congress to
require military service for the common defense are broad and far-reaching,12 for while the
Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly,
Congress has broad power under the Necessary and Proper Clause to enact legislation for the
regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this
indispensable function of government.

These principles, stemming on the one hand from the precious nature of the constitutionally
guaranteed rights of citizenship, and on the other from the powers of Congress and the related
obligations of individual citizens, are urged upon us by the parties here. The Government argues
that §§ 401(j) and 349(a)(10) are valid as an exercise of Congress' power over foreign affairs, of its
war power, and of the inherent sovereignty of the Government. Appellees urge the provisions'
invalidity as not within any of the powers asserted, and as imposing a cruel and unusual punishment.

We recognize at the outset that we are confronted here with an issue of the utmost import.
Deprivation of citizenship particularly American citizenship, which is 'one of the most valuable
rights in the world today,' Report of the President's Commission on Immigration and Naturalization
(1953), 235--has grave practical consequences. An expatriate who, like Cort, had no other
nationality becomes a stateless person--a person who not only has no rights as an American citizen,
but no membership in any national entity whatsoever. 'Such individuals as do not possess any
nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have
no means of redress, since there is no State which is competent to take up their case. As far as the
Law of Nations is concerned, there is, apart from restraints of morality or obligations expressly laid
down by treaty * * * no restriction whatever to cause a State to abstain from maltreating to any
extent such stateless individuals.' 1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), §
291, at 640.14 The calamity is '(n)ot the loss of specific rights, then, but the loss of a community
willing and able to guarantee any rights whatsoever * * *.' Arendt, The Origins of Totalitarianism
(1951), 294. The stateless person may end up shunted from nation to nation, there being no one
obligated or willing to receive him,15 or, as in Cort's case, may receive the dubious sanctuary of a
Communist regime lacking the essential liberties precious to American citizenship.

B. The Perez and Trop Cases.

The basic principles here involved, the gravity of the issue, and the arguments bearing upon
Congress' power to forfeit citizenship were considered by the Court in relation to different
provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years
ago: Perez v. Brownell, [1958] USSC 56; 356 U.S. 44, 78 S.Ct. 568, and Trop v. Dulles, [1958]
USSC 57; 356 U.S. 86, 78 S.Ct. 590.

In Perez, § 401(e), which imposes loss of nationality for '(v)oting in a political election in a foreign
state or participating in an election or plebiscite to determine the sovereignty over foreign territory,'
was upheld by a closely divided Court as a constitutional exercise of Congress' power to regulate
foreign affairs. The Court reasoned that since withdrawal of citizenship of Americans who vote in
foreign elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of
foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and
Proper Clause. Since the Court sustained the application of § 401(e) to denationalize Perez, it did
not have to deal with § 401(j), upon which the Government had also relied, and it expressly declined
to rule on the constitutionality of that section, 356 U.S., at 62, 78 S.Ct., at 578. There were three
opinions written in dissent. The principal one, that of The Chief Justice, recognized 'that citizenship
may not only be voluntarily renounced through exercise of the right of expatriation but also by other
actions in derogation of undivided allegiance to this country,' id., at 68, 78 S.Ct. at 581, but
concluded that '(t)he mere act of voting in a foreign election, however, without regard to the
circumstances attending the participation, is not sufficient to show a voluntary abandonment of
citizenship,' id., at 78, 78 S.Ct., at 586.

In Trop, § 401(g), forfeiting the citizenship of any American who is guilty of '(d)eserting the
military or naval forces of the United States in time of war, provided he is convicted thereof by
court martial and as the result of such conviction is dismissed or dishonorably discharged * * *,' was
declared unconstitutional. There was no opinion of the Court. The Chief Justice wrote an opinion
for four members of the Court, concluding that § 401(g) was invalid for the same reason that he had
urged as to § 401(e) in his dissent in Perez, and that it was also invalid as a cruel and unusual
punishment imposed in violation of the Eighth Amendment. Justice Brennan conceded that it is
'paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime
by voting in a Mexican political election, yet find unconstitutional a statute which provides for the
expatriation of a soldier guilty of the very serious crime of desertion in time of war,' 356 U.S., at
105, 78 S.Ct., at 600. Notwithstanding, he concurred because 'the requisite rational relation between
this statute and the war power does not appear * * *,' id., at 114, 78 S.Ct., at 605. Justice
Frankfurter, joined by three other Justices, dissented on the ground that § 401(g) did not impose
punishment at all, let alone cruel and unusual punishment, and was within the war powers of
Congress.

C. Sections 401(j) and 349(a)(10) as Punishment.

The present cases present for decision the constitutionality of a section not passed upon in either
Perez or Trop--s 401(j), added in 1944, and its successor and present counterpart, § 349(a)(10) of
the Immigration and Nationality Act of 1952. We have come to the conclusion that there is a basic
question in the present cases, the answer to which obviates a choice here between the powers of
Congress and the constitutional guarantee of citizenship. That issue is whether the statutes here,
which automatically--without prior court or administrative proceedings--impose forfeiture of
citizenship, are essentially penal in character, and consequently have deprived the appellees of their
citizenship without due process of law and without according them the rights guaranteed by the
Fifth and Sixth Amendments, including notice, confrontation, compulsory process for obtaining
witnesses, trial by jury, and assistance of counsel. This issue was not relevant in Trop because, in
contrast to §§ 401(j) and 349(a)(10), § 401(g) required conviction by court-martial for desertion
before forfeiture of citizenship could be inflicted. In Perez the contention that § 401(e) was penal in
character was impliedly rejected by the Court's holding, based on legislative history totally different
from that underlying §§ 401(j) and 349(a)(10), that voting in a political election in a foreign state 'is
regulable by Congress under its power to deal with foreign affairs.' 356 U.S., at 59, 78 S.Ct., at 576.
Compare Dent v. West Virginia, [1889] USSC 11; 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623; Hawker
v. New York, [1898] USSC 67; 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002; Flemming v. Nestor,
[1960] USSC 98; 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435. Indeed, in Trop The Chief Justice
observed that 'Section 401(j) decrees loss of citizenship without providing any semblance of
procedural due process whereby the guilt of the draft evader may be determined before the sanction
is imposed * * *,' 356 U.S., at 94, 78 S.Ct., at 594, and Justice Frankfurter in dissent alluded to the
due process overtones of the requirement in § 401(g) of prior conviction for desertion by court-
martial, id., at 116--117, 78 S.Ct., at 606.

It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's
foreign relations are subject to the constitutional requirements of due process.17 The imperative
necessity for safeguarding these rights to procedural due process under the gravest of emergencies
has existed throughout our constitutional history, for it is then, under the pressing exigencies of
crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees
which, it is feared, will inhibit governmental action. 'The Constitution of the United States is a law
for rulers and people, equally in war and in peace, and covers with the shield of its protection all
classes of men, at all times, and under all circumstances.' Ex parte Milligan, [1866] USSC 34; 4
Wall, 2, 120--121[1866] USSC 34; , 18 L.Ed. 281.18 The rights guaranteed by the Fifth and Sixth
Amendments are 'preserved to every one accused of crime who is not attached to the army, or navy,
or militia in actual service.' Id., at 123.19 '(I)f society is disturbed by civil commotion--if the
passions of men are aroused and the restraints of law weakened, if not disregarded--these
safeguards need, and should receive, the watchful care of those intrusted with the guardianship of
the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of
liberty, consecrated by the sacrifices of the Revolution.' Id., at 124.

We hold §§ 401(j) and 349(a)(10) invalid because in them Congress has plainly employed the
sanction of deprivation of nationality as a punishment--for the offense of leaving or remaining
outside the country to evade military service--without affording the procedural safeguards
guaranteed by the Fifth and Sixth Amendments.20 Our forefathers 'intended to safeguard the people
of this country from punishment without trial by duly constituted courts. * * * And even the courts
to which this important function was entrusted, were commanded to stay their hands until and unless
certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has
a right to be represented by counsel, (and) must be clearly informed of the charge against him * * *.'
United States v. Lovett, [1946] USSC 104; 328 U.S. 303, 317[1946] USSC 104; , 66 S.Ct. 1073,
1080[1946] USSC 104; , 90 L.Ed. 1252. See also Chambers v. Florida, [1940] USSC 30; 309 U.S.
227, 235--238[1940] USSC 30; , 60 S.Ct. 472, 476--477[1940] USSC 30; , 84 L.Ed. 716.

As the Government concedes, §§ 401(j) and 349(a)(10) automatically strip an American of his
citizenship, with concomitant deprivation 'of all that makes life worth living,' Ng Fung Ho v. White,
[1922] USSC 120; 259 U.S. 276, 284--285[1922] USSC 120; , 42 S.Ct. 492, 495[1922] USSC 120;
, 66 L.Ed. 938, whenever a citizen departs from or remains outside the jurisdiction of this country
for the purpose of evading his military obligations. Conviction for draft evasion, as Cort's case
illustrates, is not prerequisite to the operation of this sanction.21 Independently of prosecution,
forfeiture of citizenship attaches when the statutory set of facts develops. It is argued that the
availability after the fact of administrative and judicial proceedings, including the machinery the
Court approved last Term in Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, to contest the validity of the
sanction meets the measure of due process. But the legislative history and judicial expression with
respect to every congressional enactment relating to the provisions in question dating back to 1865
establish that forfeiture of citizenship is a penalty for the act of leaving or staying outside the
country to avoid the draft. This being so, the Fifth and Sixth Amendments mandate that this
punishment cannot be imposed without a prior criminal trial and all its incidents, including
indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for
obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the
procedural safeguards required as incidents of a criminal prosecution are lacking. We need go no
further.

The punitive nature of the sanction here is evident under the tests traditionally applied to determine
whether an Act of Congress is penal or regulatory in character, even though in other cases this
problem has been extremely difficult and elusive of solution. Whether the sanction involves an
affirmative disability or restraint,22 whether it has historically been regarded as a punishment,23
whether it comes into play only on a finding of scienter,24 whether its operation will promote the
traditional aims of punishment--retribution and deterrence,25 whether the behavior to which it
applies is already a crime,26 whether an alternative purpose to which it may rationally be connected
is assignable for it,27 and whether it appears excessive in relation to the alternative purpose
assigned28 are all relevant to the inquiry, and may often point in differing directions. Absent
conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be
considered in relation to the statute on its face. Here, although we are convinced that application of
these criteria to the face of the statutes supports the conclusion that they are punitive, a detailed
examination along such lines is unnecessary, because the objective manifestations of congressional
purpose indicate conclusively that the provisions in question can only be interpreted as punitive.29
A study of the history of the predecessor of § 401(j), which 'is worth a volume of logic,' New York
Trust Co. v. Eisner, [1921] USSC 125; 256 U.S. 345, 349[1921] USSC 125; , 41 S.Ct. 506,
507[1921] USSC 125; , 65 L.Ed. 963, coupled with a reading of Congress' reasons for enacting §
401(j), compels a conclusion that the statute's primary function is to serve as an additional penalty
for a special category of draft evader.30 Compare Trop v. Dulles, supra, 356 U.S., at 107--110, 78
S.Ct., at 601--603 (Brennan, J., concurring).

1. The Predecessor Statute and Judicial Construction.

The subsections here in question have their origin in part of a Civil War 'Act to amend the several
Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for
other Purposes.' Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with deserters
and draft evaders, was in terms punitive, providing that 'in addition to the other lawful penalties of
the crime of desertion,' persons guilty thereof 'shall be deemed and taken to have voluntarily
relinquished and forfeited their rights of citizenship and their rights to become citizens * * * and all
persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled,
or go beyond the limits of the United States, with intent to avoid any draft into the military or naval
service, duly ordered, shall be liable to the penalties of this section.'

The debates in Congress in 1865 confirm that the use of punitive language in § 21 was not
accidental. The section as originally proposed inflicted loss of rights of citizenship only on
deserters. Senator Morrill of Maine proposed amending the section to cover persons who leave the
country to avoid the draft, stating, 'I do not see why the same principle should not extend to those
who leave the country to avoid the draft.' Cong.Globe, 38th Cong., 2d Sess. 642 (1865). This 'same
principle' was punitive, because Senator Morrill was also worried that insofar as the section as
originally proposed 'provides for a penalty' to be imposed on persons who had theretofore deserted,
there was question 'whether it is not an ex post facto law, whether it is not fixing a penalty for an act
already done.' Ibid. Senator Johnson of Maryland attempted to allay Senator Morrill's concern by
explaining that
'the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on
those who have deserted and who shall not return within sixty days. The crime for which the
punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return
within sixty days. It is clearly within the power of Congress.' Ibid.

This explanation satisfied the Senate sufficiently so that they accepted the section, with Senator
Morrill's amendment, although Senator Hendricks of Indiana made one last speech in an effort to
convince his colleagues of the bill's ex post facto nature and, even apart from that, of the
excessiveness of the punishment, particularly as applied to draft evaders:

'It seems to me to be very clear that this section proposes to punish desertions which have already
taken place, with a penalty which the law does not already prescribe. In other words it is an ex post
facto criminal law which I think we cannot pass. * * * One of the penalties known very well to the
criminal laws of the country is the denial of the right of suffrage and the right to hold offices of trust
or profit.

'It seems to me this objection to the section is very clear, but I desire to suggest further that this
section punishes desertions that may hereafter take place in the same manner, and it is known to
Senators that one desertion recently created is not reporting when notified of the draft. * * * I
submit to Senators that it is a horrible thing to deprive a man of his citizenship, of that which is his
pride and honor, from the mere fact that he has been unable to report upon the day specified after
being notified that he has been drafted. Certainly the punishment for desertion is severe enough. It
extends now from the denial of pay up to death; that entire compass is given for the punishment of
this offense. Why add this other? It cannot do any good.' Id., at 643.

In the House, the motion of New York's Representative Townsend to strike the section as a 'despotic
measure' which would 'have the effect to deprive fifty thousand, and I do not know but one hundred
thousand, people of their rights and privileges,' was met by the argument of Representative Schenck
of Ohio, the Chairman of the Military Committee, that 'Here is a penalty that is lawful, wise, proper,
and that should be added to the other lawful penalties that now exist against deserters.' Id., at 1155.
After Representative Wilson of Iowa proposed an amendment, later accepted and placed in the
enacted version of the bill, extending the draft-evasion portion to apply to persons leaving 'the
district in which they are enrolled' in addition to those leaving the country, Representative J. C.
Allen of Illinois raised the ex post facto objection to the section as a whole. Id., at 1155--1156.
Representative Schenck answered him much as Senator Johnson had replied in the Senate:

'The gentleman from Illinois (Mr. J. C. Allen) misapprehends this section from not having looked
carefully, as I think, into its language. He thinks it retroactive. It is not so. It does not provide for
punishing those who have deserted in their character of deserters acquired by having gone before
the passage of the law, but of those only, who, being deserters, shall not return and report
themselves for duty within sixty days. If the gentleman looks at the language of the section, he will
find that we have carefully avoided making it retroactive. We give those who have deserted their
country and their flag sixty days for repentance and return.

'Mr. J. C. ALLEN. Will not the infliction of this penalty on those who have failed to return to the
Army be an additional penalty that did not exist at the time they deserted?

'Mr. SCHENCK. Yes, sir.

'Mr. J. C. ALLEN. Does not that make the law retroactive?

'Mr. SCHENCK. They are deserters now. We take them up in their present status and character as
deserters, and punish them for continuing in that character. The gentleman refers to lawyers here. I
believe he is a good lawyer himself. Does he not know that if a man steals a horse and runs away
with it to the next county it is a continual act of larceny until he delivers up the horse?' Id., at 1156.

The significance of these debates is, as these excerpts plainly show, that while there was a difference
in both Houses as to whether the statute would be an ex post facto law, there was agreement among
all the speakers on both sides of that issue, as well as on both sides of the merits of the bill
generally, that deprivation of rights of citizenship for leaving the country to evade the draft was a
'penalty' and 'punishment' for a 'crime' and an 'offense' and a violation of a 'criminal law.'

A number of state court judicial decisions rendered shortly after the Civil War lend impressive
support to the conclusion that the predecessor of §§ 401(j) and 349(a)(10), § 21 of the 1865 statute,
was a criminal statute imposing an additional punishment for desertion and draft evasion. The first
and most important of these was Huber v. Reily, 53 Pa. 112 (1866), in which, as in most of the cases
which followed,32 the plaintiff had brought an action against the election judge of his home
township, alleging that the defendant had refused to receive his ballot on the ground that plaintiff
was a deserter and thereby disenfranchised under § 21, and that such refusal was wrongful because §
21 was unconstitutional. The asserted grounds of invalidity were that § 21 was an expost facto law,
that it was an attempt by Congress to regulate suffrage in the States and therefore outside Congress'
sphere of power, and that it proposed to inflict pains and penalties without a trial and conviction,
and was therefore prohibited by the Bill of Rights. In an opinion by Justice Strong, later a member
of this Court, the Pennsylvania Supreme Court first characterized the statute in a way which
compelled discussion of the asserted grounds of unconstitutionality:

'The Act of Congress is highly penal. It imposes forfeiture of citizenship and deprivation of the
rights of citizenship as penalties for the commission of a crime. Its avowed purpose is to add to the
penalties which the law had previously affixed to the offense of desertion from the military or naval
service of the United States, and it denominates the additional sanctions provided as penalties.' 53
Pa., at 114--115.

It then answered the ex post facto argument as it had been answered on the floor of Congress, that
the offense could as well be in the continued refusal to render service as in the original desertion.
The second contention was met with the statement that 'The enactment operates upon an individual
offender, punishes him for violation of the Federal law by deprivation of his citizenship of the
United States, but it leaves each state to determine for itself whether such an individual may be a
voter. It does no more than increase the penalties of the law upon the commission of crime.' Id., at
116. 'The third objection,' the court continued, 'would be a very grave one if the act does in reality
impose pains and penalties before and without a conviction by due process of law.' Id., at 116--117.
The court then summarized the protections guaranteed by the Fifth and Sixth Amendments, and
concluded that it was not consistent with these rights to empower a 'judge of elections or a board of
election officers constituted under state laws * * * to adjudge the guilt or innocence of an alleged
violator of the laws of the United States.' Id., at 117. However, the court decided that since the
penalty contemplated by § 21 'is added to what the law had previously enacted to be the penalty of
desertion, as imprisonment is sometimes added to punishment by fine,' it must have been intended
'that it should be incurred in the same way, and imposed by the same tribunal that was authorized to
impose the other penalties for the offence.' Id., at 119. '(T)he forfeiture which it prescribes, like all
other penalties for desertion, must be adjudged to the convicted person, after trial by a court-martial,
and sentence approved. For the conviction and sentence of such a court there can be no substitute.'
Id., at 120. (Emphasis in original.) Accordingly, since the plaintiff had not been so convicted, the
court held that he was not disenfranchised.

Subsequent state court decisions in the post-Civil War period followed Huber v. Reily, both in result
and reasoning. State v. Symonds, 57 Me. 148 (1869); Severance v. Healey, 50 N.H. 448 (1870);
Gotcheus v. Matheson, 58 Barb.(N.Y.) 152 (1870); McCafferty v. Guyer, 59 Pa. 109 (1868).

Ultimately and significantly, in Kurtz v. Moffitt, [1885] USSC 221; 115 U.S. 487, 6 S.Ct. 148, 29
L.Ed. 458, a case dealing with the question whether a city police officer had the power to arrest a
military deserter, this Court recognized both the nature of the sanction imposed by § 21 and the
attendant necessity of procedural safeguards, approvingly citing the above decisions:

'The provisions of §§ 1996 and 1998, which re-enact the act of March 3, 1865, ch. 79, § 21, 13 Stat.
490, and subject every person deserting the military service of the United States to additional
penalties, namely, forfeiture of all rights of citizenship, and disqualification to hold any office of
trust or profit, can only take effect upon conviction by a court martial, as was clearly shown by Mr.
Justice Strong, when a judge of the Supreme Court of Pennsylvania, in Huber v. Reily, 53 Penn.St.
112, and has been uniformly held by the civil courts as well as by the military authorities. State v.
Symonds, 57 Maine, 148; Severance v. Healey, 50 N.H. 448; Goetcheus v. Matthewson, 61 N.Y.
420; Winthrop's Digest of Judge Advocate General's Opinions, 225.' 115 U.S., at 501--502, 6 S.Ct.,
at 153.

Section 21 remained on the books unchanged, except for being distributed in the Revised Statutes as
§§ 1996 and 1998, until 1912, when Congress reenacted it with an amendment making it
inapplicable to peacetime violations and giving the President power to mitigate or remit punishment
previously imposed on peacetime violators, Act of August 22, 1912, 37 Stat. 356. The legislative
history of that amendment is also instructive for our present inquiry. The discussion in both Houses
had reference only to the penalties as operative on deserters, no doubt because there was no
peacetime draft to evade, but since the 1865 statute dealt without distinction with both desertion and
leaving the jurisdiction to evade, there is no reason to suppose the discussion quoted below to be
any less applicable to the latter type of misconduct. The House Committee Report,
H.R.Rep.No.335, 62d Cong., 2d Sess. (1912), which was quoted in its entirety in the Senate
Committee Report, S.Rep.No.910, 62d Cong., 2d Sess. 3--6 (1912), stated that 'In addition to the
service penalty imposed by the court-martial, the law, as it now stands, imposes the further and most
drastic punishment of loss of rights of citizenship * * *. There are in the United States to-day
thousands of men who are literally men without a country and their numbers will be constantly
added to until the drastic civil-war measure which adds this heavy penalty to an already severe
punishment imposed by military law, is repealed.' H.R.Rep.No.335, supra, at 2. In reporting the bill
out of the Committee on Naval Affairs, Representative Roberts of Massachusetts, its author, stated
that 'the bill now under consideration is intended to remove one of the harshest penalties that can be
imposed upon a man for an offense, to wit, the loss of rights to citizenship. * * * (S)uch a drastic
penalty was entirely too severe to be imposed upon an American citizen in time of peace.' He
detailed the penalties meted out by court-martial for desertion, and then referred to the 'additional
penalty of loss of citizenship,' which, he concluded, is 'a barbarous punishment.' 48 Cong.Rec. 2903
(1912). Senator Bristow of Kansas, a member of his chamber's Committee on Military Affairs, also
referred in discussing the bill to the forfeiture of rights of citizenship as a 'penalty,' and said that
there is no reason why a peacetime offender should be 'punished so severely.' 48 Cong.Rec. 9542
(1912).

A somewhat similar amendment had been passed by both Houses of Congress in 1908 but vetoed by
the President.33 The House Committee Report on that occasion, H.R.Rep.No.1340, 60th Cong., 1st
Sess. (1908), consisted mainly of a letter from the Secretary of the Navy to the Congress, and of his
annual report. In both documents he referred to loss of citizenship as a 'punishment,' and as one of
the 'penalties' for desertion. Representative Roberts spoke in 1908, as he was to do once more in
1912, of the 'enormity of the punishment' and the 'horrible punishment,' and said, 'Conviction itself
under the existing law forfeits citizenship. That is the monstrosity of the law.' 43 Cong.Rec. 111
(1908). The entire discussion, id., at 110--114, was based on the premise that loss of citizenship is a
punishment for desertion, the point at issue as in 1912, being whether it was too severe a
punishment for peacetime imposition. At one point Representative Roberts said, 'Loss of citizenship
is a punishment,' to which Representative Hull of Iowa replied, 'Certainly.' Id., at 114.

Section 504 of the Nationality Act of 1940, 54 Stat. 1172, repealed the portion of the 1865 statute
which dealt with flight from the jurisdiction to avoid the draft. However, in connection with the
provision governing loss of citizenship for desertion, which was enacted as § 401(g) and declared
unconstitutional in Trop v. Dulles, supra, the President's committee of advisers reported that the
provisions of the 1865 Act had been 'distinctly penal in character,' and concluded that 'They must,
therefore, be construed strictly, and the penalties take effect only upon conviction by a court
martial.'34 Codification of the Nationality Laws of the United States, 76th Cong., 1st Sess. 68
(Comm.Print 1939). Section 401(g) was therefore worded so that loss of nationality could only
occur upon conviction for desertion by court-martial. When, however, § 401(j) was enacted in 1944,
no such procedural safeguards were built in. See Trop v. Dulles, supra, 356 U.S. at 93--94, 78
S.Ct., at 594. Thus, whereas for Justice Brennan concurring in Trop the conclusion that expatriation
under § 401(g) was punishment was 'but the beginning of critical inquiry,' 356 U.S., at 110, 78
S.Ct., at 603, a similar conclusion with reference to §§ 401(j) and 349(a)(10) is sufficient to sustain
the holding that they are unconstitutional.

2. The Present Statutes.

The immediate legislative history of § 401(j) confirms the conclusion, based upon study of the
earlier legislative and judicial history,35 that it is punitive in nature. The language of the section
was, to begin with, quite obviously patterned on that of its predecssor, an understandable fact since
the draft of the bill was submitted to the Congress by Attorney General Biddle along with a letter to
Chairman Russell of the Senate Immigration Committee, in which the Attorney General referred for
precedent to the 1912 reenactment of the 1865 statute. This letter, which was the impetus for the
enactment of the bill, was quoted in full text in support of it in both the House and Senate
Committee Reports, H.R.Rep. No. 1229, 78th Cong., 2d Sess. 2--3 (1944); S.Rep. No. 1075, 78th
Cong., 2d Sess. 2 (1944), and is set out in the margin.36 The Senate Report stated that it 'fully
explains the purpose of the bill.' S.Rep. No. 1075, supra, at 1. The letter was couched entirely in
terms of an argument that citizens who had left the country in order to escape military service
should be dealt with, and that loss of citizenship was a proper way to deal with them. There was no
reference to the societal good that would be wrought by the legislation, nor to any improvement in
soldier morale or in the conduct of war generally that would be gained by the passage of the statute.
The House Committee Report and the sponsors of the bill endorsed it on the same basis. The report
referred for support to the fact that the FBI files showed 'over 800 draft delinquents' in the El Paso
area alone who had crossed to Mexico to evade the draft. H.R.Rep. No. 1229, supra, at 2. The
obvious inference to be drawn from the report, the example it contained, and the lack of mention of
any broader purpose is that Congress was concerned solely with inflicting effective retribution upon
this class of draft evaders and, no doubt, on others similarly situated. Thus, on the floor of the
House, Representative Dickstein of New York, the Chairman of the House Committee on
Immigration and Naturalization, explained the bill solely as a means of dealing with 'draft dodgers
who left this country knowing that there was a possibility that they might be drafted in this war and
that they might have to serve in the armed forces * * *.' He implied that the bill was necessary to
frustrate their 'idea of evading military service and of returning after the war is over, and taking
their old places in our society.' 90 Cong.Rec. 3261 (1944). Senator Russell, who was manager of the
bill as well as Chairman of the Senate Immigration Committee, explained it in similar terms:

'Certainly those who, having enjoyed the advantages of living in the United States, were unwilling
to serve their country or subject themselves to the Selective Service Act, should be penalized in
some measure. * * * Any American citizen who is convicted of violating the Selective Service Act
loses his citizenship. This bill would merely impose a similar penalty on those who are not subject
to the jurisdiction of our courts, the penalty being the same as would result in the case of those who
are subject to the jurisdiction of our courts.' 90 Cong.Rec. 7629 (1944).37

The Senate and House debates, together with Attorney General Biddle's letter, brought to light no
alternative purpose to differentiate the new statute from its predecessor. Indeed, as indicated, the
Attorney General's letter specifically relied on the predecessor statute as precedent for this
enactment, and both the letter and the debates, consistent with the character of the predecessor
statute, referred to reasons for the enactment of the bill which were fundamentally retributive in
nature. When all of these considerations are weighed, as they must be, in the context of the
incontestibly punitive nature of the predecessor statute, the conclusion that § 401(j) was itself
dominantly punitive becomes inescapable. The legislative history of § 349(a)(10) of the
Immigration and Nationality Act of 1952, which re-enacted § 401(j), adds nothing to disturb that
result.38 Our conclusion from the legislative and judicial history is, therefore, that Congress in these
sections decreed an additional punishment for the crime of draft avoidance in the special category of
cases wherein the evader leaves the country. It cannot do this without providing the safeguards
which must attend a criminal prosecution.

V. CONCLUSION.

It is argued that our holding today will have the unfortunate result of immunizing the draft evader
who has left the United States from having to suffer any sanction against his conduct, since he must
return to this country before he can be apprehended and tried for his crime. The compelling answer
to this is that the Bill of Rights which we guard so jealously and the procedures it guarantees are not
to be abrogated merely because a guilty man may escape prosecution or for any other expedient
reason. Moreover, the truth is that even without being expatriated, the evader living abroad is not in
a position to assert the vast majority of his component rights as an American citizen. If he wishes to
assert those rights in any real sense he must return to this country, and by doing that he will subject
himself to prosecution. In fact, while he is outside the country evading prosecution, the United
States may, by proper refusal to exercise its largely discretionary power to afford him diplomatic
protection,40 decline to invoke its sovereign power on his behalf. Since the substantial benefits of
American citizenship only come into play upon return to face prosecution, the draft evader who
wishes to exercise his citizenship rights will inevitably come home and pay his debt, which within
constitutional limits Congress has the power to define. This is what Mendoza-Martinez did, what
Cort says he is willing to do, and what others have done.41 Thus our holding today does not
frustrate the effective handling of the problem of draft evaders who leave the United States.

We conclude, for the reasons stated, that §§ 401(j) and 349(a)(10) are punitive and as such cannot
constitutionally stand, lacking as they do the procedural safeguards which the Constitution
commands.43 We recognize that draft evasion, particularly in time of war, is a heinous offense, and
should and can be properly punished. Dating back to Magna Carta, however, it has been an abiding
principle governing the lives of civilized men that 'no freeman shall be taken or imprisoned or
disseised or outlawed or exiled * * * without the judgment of his peers or by the law of the land * *
*.'44 What we hold is only that, in keeping with this cherished tradition, punishment cannot be
imposed 'without due process of law.' Any lesser holding would ignore the constitutional mandate
upon which our essential liberties depend. Therefore the judgments of the District Courts in these
cases are affirmed.
Affirmed.

Mr. Justice DOUGLAS and Mr. Justice BLACK, while joining the opinion of the Court, adhere to
the views expressed in the dissent of Mr. Justice DOUGLAS, in which Mr. Justice BLACK joined,
in Perez v. Brownell, [1958] USSC 56; 356 U.S. 44, 79[1958] USSC 56; , 78 S.Ct. 568, 586, that
Congress has no power to deprive a person of the citizenship granted the native-born by § 1, cl. 1, of
the Fourteenth Amendment.

Mr. Justice BRENNAN, concurring.

I join the Court's opinion because I fully agree with the Court's conclusion that Congress has here
attempted to employ expatriation as a penal sanction in respect of behavior deemed inimical to an
objective whose pursuit is within its assigned powers, and with the reasoning by which that
conclusion is reached. So too, I agree that Congress is constitutionally debarred from so employing
the drastic, the truly terrifying remedy of expatriation, certainly where no attempt has been made to
apply the full panoply of protective safeguards which the Constitution requires as a condition of
imposing penal sanctions. However, I deem it appropriate to elaborate somewhat the considerations
which impel me to agree with the Court.

This Court has never granted the existence in Congress of the power to expatriate except where its
exercise was intrinsically and peculiarly appropriate to the solution of serious problems inevitably
implicating nationality. We have recognized the entanglements which may stem from dual
allegiance, and have twice sustained statutes which provided for loss of American citizenship upon
the deliberate assumption of a foreign attachment. Mackenzie v. Hare, [1915] USSC 265; 239 U.S.
299, 36 S.Ct. 106, 60 L.Ed. 297; Savorgnan v. United States, [1950] USSC 26; 338 U.S. 491, 70
S.Ct. 292, 94 L.Ed. 287. We have recognized that participation by American nationals in the
internal politics of foreign states could dangerously prejudice our diplomacy, and have allowed the
use of expatriation as a uniquely potent corrective which precludes recriminations by disowning, at
the moment of his provocative act, him who might otherwise be taken as our spokesman or our
operative. Perez v. Brownell, [1958] USSC 56; 356 U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603. The
instant cases do not require me to resolve some felt doubts of the correctness of Perez, which I
joined. For the Court has never held that expatriation was to be found in Congress' arsenal of
common sanctions, available for no higher purpose than to curb undesirable conduct, to exact
retribution for it, and to stigmatize it.

I.

In Trop v. Dulles, [1958] USSC 57; 356 U.S. 86, 78 S.Ct. 590, 2 L.Ed.2d 596, we had before us §
401(g) of the Nationality Act of 1940, which imposed loss of American nationality following
conviction of deserting the armed forces in time of war. We held that statute unconstitutional. Three
of my Brethren joined in the opinion of The Chief Justice, who analyzed the case in terms equally
applicable to the cases at bar. That plurality opinion in Trop noted that the congressional power to
which expatriation under § 401(g) was said to be relevant was the 'war power.' It concluded that
expatriation under § 401(g) could have no value in furtherance of the war power except as a
sanction, to deter or punish desertion; that expatriation so employed was 'punishment' within the
meaning of the Eighth Amendment; and that such punishment was unconstitutional because cruel
and unusual.
My concurring views in Trop, separately expressed, were akin to those of the plurality. I shared the
view that expatriation could have been employed in § 401(g) only as a sanction, and I considered
this an insufficient predicate for its use--which I believed allowable only where some affirmative
and unique relationship to policy was apparent. My premise was the simple and fundamental one
that legislation so profoundly destructive of individual rights must keep within the limits of palpable
reason and rest upon some modicum of discoverable necessity. I was unable to conclude that §
401(g) met that elementary test. It was evident that recognizable achievement of legitimate
congressional purposes through the expatriation device was at best remote; and that far more
promising alternative methods existed and had, in fact, been employed.

My Brother STEWART attempts to distinguish Trop along two fronts: He argues that expatriation is
not here employed as 'punishment' in the constitutional sense so that the reasoning of the Trop
plurality has no application; and he argues that, the question of punishment aside, expatriation as
here employed is a uniquely necessary device not falling within the rationale of my views separately
expressed in Trop.

My Brother STEWART discerns in § 401(j)2 an affirmative instrument of policy and not simply a
sanction which must be classed as 'punishment.' The policy objective is thought to be the
maintenance of troop morale; a threat to that objective is thought to be the spectacle of persons
escaping a military-service obligation by flight; and expatriation of such persons is sustained as a
demonstrative counter to that threat. To my mind that would be 'punishment' in the purest sense; it
would be naked vengeance. Such an exaction of retribution would not lose that quality because it
was undertaken to maintain morale. Indeed, it is only the significance of expatriation as retribution
which could render it effective to boost morale--the purpose which, to the dissent, removes
expatriation as here used from the realm of the punitive. I do not perceive how expatriation so
employed would differ analytically from the stocks or the rack. Because such devices may be
calculated to shore up the convictions of the law-abiding by demonstrating that the wicked will not
go unscathed, they would not, by the dissent's view, be punitive or, presumably, reachable by the
Eighth Amendment.3 I cannot agree to any such proposition, and I see no escape from the
conclusion that § 401(j), before us today, is identical in purpose to § 401(g) and is quite as 'punitive'
as was that statute, which we condemned in Trop.

The dissent finds other distinctions between this case and Trop, quite apart from its untenable
position that § 401(j) is not punitive. It is said that flight from the country to escape the draft, in
contrast with desertion, could never be a mere technical offense equivocal in its implications for the
loyalty of the offender. But the unshakable fear of physical stress or harm, the intellectual or moral
aversion to combat, and the mental aberation which may result in flight are no more inconsistent
with underlying loyalty than was Trop's unauthorized abandonment of his post.4 Again, it is
suggested that the element of cumulation of punishments which helped expose the futility of
expatriation in Trop is missing here, because § 401(j), unlike § 401(g), becomes operative without a
prior conviction, and applies only in the case of flight beyond our borders. But the Mendoza-
Martinez case, in its collateral estoppel issue, prominently displays what would in any case be
obvious--that expatriation under § 401(j) is cumulative with criminal sanctions for draft evasion,
for those sanctions apply to fugitives equally as much as to sedentary violators.

Nor can Trop rationally be distinguished on the ground that the application of § 401(j) only the
fugitives proves that it was designed to fill a void necessarily left by the ordinary criminal draft-
evasion sanctions. The point, as I understand it, is that the ordinary sanctions cannot be brought to
bear against a fugitive who declines to come home; but he can be expatriated while he remains
abroad, without having to be brought before a tribunal and formally proceeded against. The special
virtue of expatriation, it appears, is that it may be accomplished in absentia.

Aside from the denial of procedural due process, which the Court rightly finds in the scheme, the
surface appeal of the argument vanishes upon closer scrutiny.

It simply is not true that expatriation provides an instrumentality specially necessary for imposing
the congressional will upon fugitive draft evaders. Our statutes now provide severe criminal
sanctions for the behavior in question. The fugitive can return only at the cost of suffering these
punishments; the only way to avoid them is to remain away. As to any draft delinquent for whom
the prospect of this dilemma would not itself pose a recognizable, formidable deterrent, I fail to see
how the addition of expatriation could enhance the effect at all.6 Nor can expatriation affect the
fugitive who will not return to be punished--for whom it is thought to be specially designed. For
that individual has, ex hypothesi, determined on his own to stay away and so cannot be affected by
the withdrawal of his right to return. The sting of the measure is felt only by those like Mendoza-
Martinez, who have already returned and been punished, and those like Cort, who desire to return
and be punished--those, in other words, as to whom expatriation is patently cumulative with other
sanctions. As to the unregenerate fugitive whom it is particularly thought to reach, expatriation is
but a display of congressional displeasure. I cannot agree that it is within the power of Congress so
to express its displeasure with those who will not return as to destroy the rights and the status of
those who have demonstrated their underlying attachment to this country by coming home.

It is apparent, then, that today's cases are governed by Trop no matter which of the two controlling
opinions is consulted. Expatriation is here employed as 'punishment,' cruel and unusual here if it
was there. Nor has expatriation as employed in these cases any more rational or necessary a
connection with the war power than it had in Trop.

II.

Mr. Justice STEWART'S dissent would sustain § 401(j) as a permissible exercise of the 'war power.'
The appellants in these cases, on the other hand, place their main reliance on the 'foreign affairs
power.' The dissent summarizes the appellants' arguments under this heading but does not purport to
pass on them. Because of my conviction that § 401(j) is unconstitutional no matter what
congressional power is invoked in its support, I find it necessary to deal with the foreign affairs
arguments advanced by the appellants.

Initially, I note that the legislative history as expounded by the dissent fails to reveal that Congress
was mindful of any foreign affairs problem to be corrected by the statute. The primary purpose
seems to me to have been retributive, the secondary purpose deterrent; and even the morale-boosting
purpose discerned by the dissent has nothing to do with foreign affairs. While the obvious fact that
Congress was not consciously pursuing any foreign affairs objective may not necessarily preclude
reliance on that power as a ground of constitutionality, it does render such reliance initially
questionable.
Proceeding to the appellants' arguments, one encounters first the suggestion that a fugitive draft
evade 'can easily cause international complications' while he remains an American citizen, because
the United States cannot exercise control over him while he is on foreign soil.

Such a 'problem,' obviously, exists equally with respect to any fugitive from American justice, and
cannot be thought confined to draft evaders. Yet it is only fugitive draft evaders who are expatriated.
It is, therefore, impossible to agree that Congress was acting on any such inherently unlikely
premise as that expatriation was necessary so as to avoid responsibility for those described by §
401(j).

But, contend the appellants, § 401(j) is designed to prevent embroilments as well as
embarrassments. During wartime, it is argued, our Government would very likely feel impelled to
demand of foreign havens the return of our fugitive draft evaders; and such a demand might
seriously offend a 'host' country, leading to embroilment. The transparent weakness of this
argument--its manifest inconsistency--must be immediately apparent. Surely the United States
need not disable itself from making injudicious demands in order to restrain itself from doing so.
The argument rests on the possibility that there may be an urgent need to secure a fugitive's return.
If that is so, a demand must be made with its attendant risk of embroilment. If expatriating the
fugitive makes a demand impossible, it able forever defeats the objective--his return--which would
have impelled the demand in the first place. If recapturing fugitives may ever be urgently necessary,
it is obvious that automatic expatriation could only be directly opposed to our interest--which
requires that the Government be free to choose whether or not to make the demand, in light of all
the attendant circumstances.

The appellants have still another argument. It is that whereas the Government is under an obligation
to seek the return of the fugitive as long as he remains a citizen, by terminating citizenship
'Congress has eliminated at the outset any further claim that this country would have to the services
of these individuals, and has removed all basis for further demands upon them * * *.' This simply is
not so. Expatriation may have no effect on a continuing military-service obligation.7 And it is
incontrovertible that the power to punish the initial draft-evasion offense continues although
citizenship has meanwhile become forfeit. The Government has so argued in addressing itself to the
collateral estoppel issue in Mendoza-Martinez. I cannot understand how any obligation to apprehend
can be other than coextensive with the power to punish. The Government cannot have it both ways
in the same case.

III.

The appellants urge that, wholly apart from any explicit congressional power, § 401(j) may be
sustained as an exercise of a power inherent in United States sovereignty. My Brethren who would
uphold the statute have not adverted to this possibility except, as I shall point out, as they have
adopted in passing certain related arguments.

Preliminarily, it is difficult to see what is resolved by the assertion that sovereignty implies a power
to expatriate. That proposition may be admitted and yet have no bearing on the problem facing the
Court.

For, under our Constitution, only a delimited portion of sovereignty has been assigned to the
Government of which Congress is the legislative arm. To say that there inheres in United States
sovereignty the power to sever the tie of citizenship does not answer the inquiry into whether that
power has been granted to Congress. Any argument that it has been so delegated which eschews
reference to the constitutional text must, it appears, make its appeal to some sense of the inevitable
fitness of things. The contentions here fall far short of any such standard.

It is too simple to suggest that it is fitting that Congress be empowered to extinguish the citizenship
of one who refuses to perform the 'ultimate duty' of rising to the Government's defense in time of
crisis. I pause to note that for this Court to lend any credence whatever to such a criterion--as the
dissent would, see pp. 214--215, is fraught with the most far-reaching consequences. For if
Congress now should declare that a refusal to pay taxes, to do jury duty, to testify, to vote, is no less
an abnegation of ultimate duty--or an implied renunciation of allegiance--than a refusal to perform
military service, I am unable to perceive how this Court, on the dissent's view, could presume to
gainsay such a judgment. But the argument is not saved even by a willingness to accept these
consequences. There really is no way to distinguish between the several failures of a citizen's duty I
have just enumerated, or to explain why evasion of military service should be visited with this
specially harsh consequence, except to recognize that the latter defection is palpably more
provocative than the others. But, as I have argued in another context, when conduct is singled out of
a class for specially adverse treatment simply because it is specially provocative, there is no
escaping the conclusion that punishment is being administered. See Flemming v. Nestor, [1960]
USSC 98; 363 U.S. 603, 635--640[1960] USSC 98; , 80 S.Ct. 1367, 1388, 4 L.Ed.2d 1435
(dissenting opinion). Pursuit of the 'ultimate duty' concept, then, simply reaffirms my conviction
that this case is indistinguishable from Trop.

The appellants, however, argue that it is fitting that Congress be empowered to extinguish the
citizenship of one who not only refuses to perform his duty, but who also 'repudiates his wider
obligation as a citizen to submit to this country's jurisdiction and authority' by fleeing the country in
order to escape that duty. It is, once again, difficult to see how this flight-repudiation theory can be
confined to draft evasion. Every fugitive from United States justice repudiates American authority
over him in equal measure. If the difference lies in the quality of the act of draft evasion, then we
are back once again to punishment.

The appellants assert that '(a) government which cannot exert force to compel a citizen to perform
his Lawful (Government's emphasis) duty is, to that extent, not sovereign as to him.' The apparent
corollary is that congressionally imposed expatriation is, under such circumstances, in effect
declaratory of a change in status which has already occurred. But the Government is far from
conceding its lack of authority over a fugitive draft evader. It informs us that 'the federal
government has the power to order our citizens abroad to return, for any lawful purpose,' citing
Blackmer v. United States, [1932] USSC 23; 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. And, in any
event, the argument proves far too much, for it would justify expatriation of any American abroad
for any reason who would, equally with persons covered by § 401(j), be outside our Government's
power to compel the performance of duty.

Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.

I agree with and join in Parts I, II, III, and IV of my Brother STEWART'S opinion, leading to the
conclusion that § 401(j) of the Nationality Act of 1940, applicable in No. 2 (Mendoza), is
constitutional. I also agree with his conclusion that for the same reasons, the substantive provisions
of § 349(a) (10) of the 1952 Act, applicable in No. 3 (Cort), are constitutional. I disagree, however,
with his view that the evidentiary presumption contained in § 349(a)(10) is unconstitutional. I am
content to state my reasons in summary form.

1. As I read the opinion below in the Cort case I do not think the District Court relied on the §
349(a)(10) presumption.1 This view is fortified by several considerations: (i) the constitutionality of
the presumption was attacked in Cort's complaint and was briefed by both sides in the District
Court; (ii) the text of the presumption itself was set forth in the opinion of the District Court (187
F.Supp., at 684) at only a page or two before the extract quoted in the margin (note 1); and (iii) in
these circumstances it is difficult to believe that the lower court, composed of three experienced
judges, either inadvertently ignored the presumption or upheld its validity sub silentio. The more
likely conclusion is that finding the evidence sufficient without the aid of the presumption, the
lower court saw no need for reaching a second constitutional issue.

So viewing that District Court's opinion, I think the evidence was quite sufficient under the 'clear,
unequivocal, and convincing' standard of Schneiderman v. United States, [1943] USSC 144; 320
U.S. 118, 135[1943] USSC 144; , 63 S.Ct. 1333, 1341, 87 L.Ed. 1796, to support the finding below
that Cort had remained abroad for the purpose of evading military service.

2. In addition, I see nothing constitutionally wrong with this presumption either on its face or as
related to this case. Similar presumptions have been consistently sustained in criminal statutes,
where the standard of proof is certainly no less stringent than in denationalization cases. See, e.g.,
Yee Hem v. United States, [1925] USSC 124; 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Casey v.
United States, [1928] USSC 60; 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632; Hawes v. Georgia,
[1922] USSC 20; 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431; cf. Fong Yue Ting v. United States,
[1893] USSC 185; 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905. As regards the requirement that there
must be a 'rational connection between the fact proved and the ultimate fact presumed,' Tot v.
United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, this presumption is surely a
far cry from that held constitutionally invalid in the Tot case.3 And since we are concerned here
only with the presumption as applied in this instance (if indeed it was in fact applied below or must
now be resorted to in this Court), it is no answer to suggest that in other instances application of the
presumption might be unconstitutional.

Thus whether or not the § 349(a)(10) presumption is involved in the Cort case, I believe that the
order of denationalization there, as well as in the Mendoza case, should be upheld.

Mr. Justice STEWART, with whom Mr. Justice WHITE joins, dissenting.

The Court's opinion is lengthy, but its thesis is simple: (1) The withdrawal of citizenship which
these statutes provide is 'punishment.' (2) Punishment cannot constitutionally be imposed except
after a criminal trial and conviction. (3) The statutes are therefore unconstitutional. As with all
syllogisms, the conclusion is inescapable if the premises are correct. But I cannot agree with the
Court's major premise--that the divestiture of citizenship which these statutes prescribe is
punishment in the constitutional sense of that term.

I.

Despite the broad sweep of some of the language of its opinion, the Court as I understand it does not
hold that involuntary deprivation of citizenship is inherently and always a penal sanction--requiring
the safeguards of a criminal trial. Such a determination would overrule at least three decisive
precedents in this Court.

Nearly 50 years ago the Court held that Congress had constitutional power to denationalize a native-
born citizen who married a foreigner but continued to reside here. Mackenzie v. Hare, [1915] USSC
265; 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297. The Court there explicitly rejected the argument
'that the citizenship of plaintiff was an incident to her birth in the United States, and, under the
Constitution and laws of the United States, it became a right, privilege, and immunity which could
not be taken away from her except as a punishment for crime or by her voluntary expatriation.' 239
U.S., at 308, 36 S.Ct., at 107. The power of Congress to denationalize a native-born citizen, without
a criminal trial, was reaffirmed in Savorgnan v. United States, [1950] USSC 26; 338 U.S. 491, 70
S.Ct. 292, 94 L.Ed. 287. And less than five years ago, in Perez v. Brownell, [1958] USSC 56; 356
U.S. 44, 78 S.Ct. 568, 2 L.Ed.2d 603, the Court again upheld this congressional power in an opinion
which unambiguously rejected the notion, advanced in that case by the dissenters,2 that the
Mackenzie and Savorgnan decisions stand only for the proposition that citizenship may be
voluntarily relinquished or abandoned either expressly or by conduct. In short, it has been
established for almost 50 years that Congress under some circumstances may, without providing for
a criminal trial, make expatriation the consequence of the voluntary conduct of a United States
citizen, irrespective of the citizen's subjective intention to renounce his nationality, and irrespective
too of his awareness that denationalization will be the result of his conduct.

II.

The position taken by the Court today is simply that, unlike the statutes involved in Mackenzie,
Savorgnan and Perez, the statutes at issue in the present case employ deprivation of citizenship as a
penal sanction. In support of this position, the Court devotes many pages of its opinion to a
discussion of a quite different law, enacted in 1865, amended in 1912, and repealed in 1940. That
law4 provided for forfeiture of the 'rights of citizenship' as an additional penalty for deserters from
the armed forces and for enrolled draftees who departed from their district or from the United States
'to avoid any draft into the military or naval service, duly ordered * * *.' That statute, as the Court
correctly says, 'was in terms punitive,' and I agree with the Court that the statute's legislative history,
as well as subsequent judicial decisions construing it, makes it clear that the law was punitive--
imposing additional punishment upon those convicted of either of the offenses mentioned.

In these cases, however, we have before us statutes which were enacted in 1944 and 1952,
respectively. In construing these statutes, I think nothing is to be gained from the legislative history
of a quite different law enacted by a quite different Congress in 1865, nor from the reports of still
another Congress which amended that law in 1912. Unlike the 1865 law, the legislation at issue in
the cases before us is not 'in terms punitive.' And there is nothing in the history of this legislation
which persuades me that these statutes, though not in terms penal, nonetheless embody a purpose of
the Congresses which enacted them to impose criminal punishment without the safeguards of a
criminal trial.

Unlike the two sections of the Nationality Act of 1940 which were in issue in Perez v. Brownell6
and Trop v. Dulles,7 § 401(j) did not have its genesis in the Cabinet Committee's draft code which
President Roosevelt submitted to Congress in 1938.8 Indeed, § 401(j) was the product of a totally
different environment--the experience of a nation engaged in a global war.

On February 16, 1944, Attorney General Biddle addressed a letter to the Chairman of the Senate
Immigration Committee, calling attention to circumstances which had arisen after the institution of
the draft in World War II, and suggesting the legislation which subsequently became § 401(j). The
Attorney General's letter stated in part:

'I invite your attention to the desirability of enacting legislation which would provide (1) for the
expatriation of citizens of the United States who in time of war or during a national emergency
leave the United States or remain outside thereof for the purpose of evading service in the armed
forces of the United States and (2) for the exclusion from the United States of aliens who leave this
country for the above-mentioned purpose.

'Under existing law a national of the United States, whether by birth or by naturalization, becomes
expatriated by operation of law if he (1) obtains naturalization in a foreign state; (2) takes an oath of
allegiance to a foreign country; (3) serves in the armed forces of a foreign state if he thereby
acquires the nationality of such foreign state; (4) accepts employment under a foreign state for
which only nationals of such state are eligible; (5) votes in a political election in a foreign state or
participates in an election or plebiscite to determine the sovereignty over foreign territory; (6)
makes a formal renunciation of nationality before a diplomatic or consular officer of the United
States in a foreign state; (7) deserts from the armed forces of the United States in time of war and is
convicted thereof by a court martial; or (8) is convicted of treason (U.S.C., title 8, sec. 801).
Machinery is provided whereby a person who is denied any right or privilege of citizenship on the
ground that he has become expatriated may secure a judicial determination of his status; and if he is
outside of the United States he is entitled to a certificate of identity which permits him to enter and
remain in the United States until his status has been determined by the courts (Nationality Act of
1940, sec. 503; U.S.C., title 8, sec. 903).

'The files of this Department disclose that at the present time there are many citizens of the United
States who have left this country for the purpose of escaping service in the armed forces. While
such persons are liable to prosecution for violation of the Selective Service and Training Act of
1940, if and when they return to this country, it would seem proper that in addition they should lose
their United States citizenship. Persons who are unwilling to perform their duty to their country and
abandon it during its time of need are much less worthy of citizenship than are persons who become
expatriated on any of the existing grounds.

'Accordingly, I recommend the enactment of legislation which would provide (1) for the
expatriation of citizens of the United States who in time of war or during a national emergency
leave the United States or remain outside thereof for the purpose of evading service in the armed
forces of the United States and (2) for the exclusion from the United States of aliens who leave this
country for that purpose. Any person who may be deemed to have become expatriated by operation
of the foregoing provision would be entitled to have his status determined by the courts pursuant to
the abovementioned section of the Nationality Act of 1940.'9

The bill was passed unanimously by both the House and the Senate, and became Public Law No.
431 of the Seventy-eighth Congress. Neither the committee reports nor the limited debate on the
measure in Congress adds any substantial gloss to the legislative action.10 And the legislative
history of § 349(a) (10) of the Immigration and Nationality Act of 1952, the statute directly
involved in the second of the two cases now before us, gives no additional illumination as to the
purpose of the Eighty-second Congress, since the substantive provisions of that statute were but a
recodification of § 401(j) of the 1940 Act.

The question of whether or not a statute is punitive ultimately depends upon whether the disability it
imposes is for the purpose of vengeance or deterrence, or whether the disability is but an incident to
some broader regulatory objective. See Cummings v. Missouri, [1866] USSC 23; 4 Wall. 277, 320,
322[1866] USSC 23; , 18 L.Ed. 356; United States v. Lovett, [1946] USSC 104; 328 U.S. 303,
308--312[1946] USSC 104; , 66 S.Ct. 1073, 1077[1946] USSC 104; , 90 L.Ed. 1252; Trop v.
Dulles, 356 U.S., at 107--109, 78 S.Ct., at 601--603; See generally, Flemming v. Nestor, [1960]
USSC 98; 363 U.S. 603, 613--617[1960] USSC 98; , 80 S.Ct. 1367, 1373--[1960] USSC 98;
1376, 4 L.Ed.2d 1435; cf. De Veau v. Braisted, [1960] USSC 76; 363 U.S. 144, 160[1960] USSC
76; , 80 S.Ct. 1146, 1154[1960] USSC 76; , 4 L.Ed.2d 1109; Communist Party of United States v.
Subversive Activities Control Board, [1961] USSC 137; 367 U.S. 1, 83--88[1961] USSC 137; , 81
S.Ct. 1357, 1403--[1961] USSC 137; 1406, 6 L.Ed.2d 625. In commenting on the nature of this
kind of inquiry, the Court said in Flemming v. Nestor, 'We observe initially that only the clearest
proof could suffice to establish the unconstitutionality of a statute on such a ground. Judicial
inquiries into Congressional motives are at best a hazardous matter, and when that inquiry seeks to
go behind objective manifestations it becomes a dubious affair indeed. Moreover, the presumption
of constitutionality with which this enactment, like any other, comes to us forbids us lightly to
choose that reading of the statute's setting which will invalidate it over that which will save it.' 363
U.S., at 617, 80 S.Ct., at 1376.

In the light of the standard enunciated in Nestor, I can find no clear proof that the prime purpose of
this legislation was punitive. To be sure, there is evidence that the deterrent effect of the legislation
was considered. Moreover, the attitude of some members of Congress toward those whom the
legislation was intended to reach was obviously far from neutral. But the fact that the word 'penalty'
was used by an individual Senator in the congressional debates is hardly controlling. As The Chief
Justice has so wisely remarked, 'How simple would be the tasks of constitutional adjudication and of
law generally if specific problems could be solved by inspection of the labels pasted on them!'

It seems clear to me that these putative indicia of punitive intent are far overbalanced by the fact
that this legislation dealt with a basic problem of wartime morale reaching far beyond concern for
any individual affected. The legislation applies only to those who have left this country or remained
outside of it for the purpose of avoiding the draft. Congress can reasonably be understood to have
been saying that those who flee the country for such express purposes do more than simply disobey
the law and avoid the imposition of criminal sanctions. They disassociate themselves entirely from
their nation, seeking refuge from their wartime obligations under the aegis of another sovereign.
Congress could reasonably have concluded that the existence of such a group, who voluntarily and
demonstrably put aside their United States citizenship 'for the duration,' could have an extremely
adverse effect upon the morale and thus the war effort not only of the armed forces, but of the
millions enlisted in the defense of their nation on the civilian front. During the consideration of §
401(j) in Congress there were repeated references to the expectation that fugitive draft evaders then
living abroad would return to this country after the war to resume citizenship and to enjoy the fruits
of victory. The effect upon wartime morale of the known existence of such a group, while perhaps
not precisely measurable in terms of impaired military efficiency, could obviously have been
considered substantial. Denationalization of this class of voluntary expatriates was a rational way of
dealing with this problem by removing its visible cause. In light of this broader purpose, I cannot
find, as the Court does, that § 401(j) was motivated primarily by the desire to wreak vengeance
upon these individuals who fled the country to avoid military service. Rather, the statute seems to
me precisely the same kind of regulatory measure, rational and efficacious, which this Court upheld
against similar objections in Perez v. Brownell, supra.

III.

For the reasons stated, I cannot find in the terms of these statutes or in their legislative history
anything close to the 'clearest proof' that the basic congressional purpose was to impose punishment.
But that alone does not answer the constitutional inquiry in these cases. As with any other exercise
of congressional power, a law which imposes deprivation of citizenship, to be constitutionally valid,
must bear a rational relationship to an affirmative power possessed by Congress under the
Constitution. The appellants submit that in enacting this legislation, Congress could rationally have
been drawing on any one of three sources of recognized constitutional power: the implied power to
enact legislation for the effective conduct of foreign affairs; the express power to wage war, to raise
armies, and to provide for the common defense; and the inherent attributes of sovereignty.

The appellants argue that this legislation, like the statutory provision sustained in Perez v. Brownell,
supra, has a direct relationship to foreign affairs. They point out that international complications
could arise if this country attempted to effect the return of citizen draft evaders by requests to a
foreign sovereign which that nation might be unwilling to grant. The appellants insist that the
possibility of international embroilments resulting from problems caused by fugitive draft evaders is
not fanciful, pointing to the background of international incidents preceding the War of 1812, and
the long history, later in the nineteenth century, of this country's involvement with other nations
over the asserted liability of our naturalized citizens to military obligations imposed by their native
countries.14 Expatriation of those who leave or remain away from the United States with draft
evasion as their purpose, the appellants say, might reasonably be attributed to a congressional belief
that this was the only practical way to nip these potential international problems in the bud.
Compare Perez v. Brownell, 356 U.S., at 60, 78 S.Ct., at 577; Trop v. Dulles, 356 U.S., at 106, 78
S.Ct., at 600 (concurring opinion).

In the view I take of this case, it is unnecessary to pursue further an inquiry as to whether the power
to regulate foreign affairs could justify denationalization for the conduct in question. For I think it
apparent that Congress in enacting the statute was drawing upon another power, broad and far
reaching.

A basic purpose of the Constitution was to 'provide for the common defence.' To that end, the
Framers expressly conferred upon Congress a compendium of powers which have come to be called
the 'war power.'15 Responsive to the scope and magnitude of ultimate national need, the war power
is 'the power to wage war successfully.' See Charles Evans Hughes, War Powers under the
Constitution, 42 A.B.A.Rep. 232, 238.

It seems to me evident that Congress was drawing upon this power when it enacted the legislation
before us. To be sure, the underlying purpose of this legislation can hardly be refined to the point of
isolating one single, precise objective. The desire to end a potential drain upon this country's
military manpower was clearly present in the minds of the legislators and would itself have
constituted a purpose having sufficient rational nexus to the exercise of the war power. Indeed, there
is no more fundamental aspect of this broad power than the building and maintaining of armed
forces sufficient for the common defense. Selective Draft Law Cases, (Arver v. United States)
[1918] USSC 6; 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349; see Falbo v. United States, [1944] USSC
21; 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305. But, in any event, the war power clearly supports the
objective of removing a corrosive influence upon the morale of a nation at war. As the Court said in
Hirabayashi v. United States, [1943] USSC 134; 320 U.S. 81, 93[1943] USSC 134; , 63 S.Ct. 1375,
1382, 87 L.Ed. 1774, the war power 'extends to every matter and activity so related to war as
substantially to affect its conduct and progress. The power is not restricted to the winning of
victories in the field and the repulse of enemy forces. It embraces every phase of the national
defense, including the protection of war materials and the members of the armed forces from injury
and from the dangers which attend the rise, prosecution and progress of war.' See Lichter v. United
States, [1948] USSC 102; 334 U.S. 742, 68 S.Ct. 1294, 92 L.Ed. 1694.

This legislation is thus quite different from the statute held invalid in Trop v. Dulles, supra. In that
case there were not five members of the Court who were able to find the 'requisite rational relation'
between the war power of Congress and § 401(g) of the 1940 Act imposing denationalization upon
wartime deserters from the armed forces. As the concurring opinion pointed out, the statute was 'not
limited in its effects to those who desert in a foreign country or who flee to another land.' 356 U.S.,
at 107, 78 S.Ct., at 601. Indeed, 'The Solicitor General acknowledged that forfeiture of citizenship
would have occurred if the entire incident had transpired in this country.' 356 U.S., at 92, 78 S.Ct.,
at 593. It was emphasized that conduct far short of disloyalty could technically constitute the
military offense of desertion, 356 U.S., at 112, 113, 78 S.Ct., at 604, 605, and that the harshness of
denationalization for conduct so potentially equivocal was 'an important consideration where the
asserted power to expatriate has only a slight or tenuous relation to the granted power.' 356 U.S., at
110, 78 S.Ct., at 603.

The legislation now before us, on the other hand, is by its terms completely inapplicable to those
guilty of draft evasion who have remained in the United States; it is exclusively aimed at those,
whether or not ever criminally convicted, who have gone to or remained in another land to escape
the duty of military service. Moreover, the conduct which the legislation reaches could never be
equivocal in nature, but is always and clearly a 'refusal to perform this ultimate duty of American
citizenship.' Trop v. Dulles, 356 U.S., at 112, 78 S.Ct., at 604 (concurring opinion).

IV.

There is one more point to be made as to the substantive provisions of the legislation before us in
these cases. Previous decisions have suggested that congressional exercise of the power to expatriate
may be subject to a further constitutional restriction--a limitation upon the kind of activity which
may be made the basis of denationalization. Withdrawal of citizenship is a drastic measure.
Moreover, the power to expatriate endows government with authority to define and to limit the
society which it represents and to which it is responsible.

This Court has never held that Congress' power to expatriate may be used unsparingly in every area
in which it has general power to act. Our previous decisions upholding involuntary denationalization
all involved conduct inconsistent with undiluted allegiance to this country. But I think the legislation
at issue in these cases comes so clearly within the compass of those decisions as to make
unnecessary in this case an inquiry as to what the ultimate limitation upon the expatriation power
may be.

The conduct to which this legislation applies, involving not only the attribute of flight or absence
from this country in time of war or national emergency, but flight or absence for the express purpose
of evading the duty of helping to defend this country, amounts to an unequivocal and conspicuous
manifestation of nonallegiance, whether considered objectively or subjectively. Ours is a tradition of
the citizen soldier. As this Court has said, '(T)he very conception of a just government and its duty
to the citizen includes the reciprocal obligation of the citizen to render military service in case of
need and the right to compel it.' Selective Draft Law Cases, (Arver v. United States) [1918] USSC
6; 245 U.S. 366, at 378[1918] USSC 6; , 38 S.Ct. 159, at 161. It is hardly an improvident exercise
of constitutional power for Congress do disown those who have disowned this Nation in time of
ultimate need.

V.

For the reasons stated, I believe the substantive provisions of § 401(j) of the 1940 Act and of §
349(a)(10) of the 1952 Act are constitutionally valid. In addition to its substantive provisions,
however, § 349(a)(10) declares:

'For the purposes of this paragraph failure to comply with any provision of any compulsory service
laws of the United States shall raise the presumption that the departure from or absence from the
United States was for the purpose of evading or avoiding training and service in the military, air, or
naval forces of the United States.'

I think the evidentiary presumption which the statute creates is clearly invalid, and that it fatally
infected the administrative determination that Joseph Henry Cort had lost his citizenship.

The District Court did not mention this statutory presumption, and it is, therefore, impossible to
know how much the court relied upon it, if at all. Indeed, the District Court's attention in this case
was oriented primarily towards the issue of its jurisdiction and the basic issue of the
constitutionality of the substantive provisions of § 349(a)(10). In view of its holding that §
349(a)(10) is unconstitutional, the court understandably did not give exhaustive attention to the
factual issues presented, devoting but a single short paragraph to the question of whether Cort's
conduct had brought him within the statute. 187 F.Supp., at 686.

But it is clear that the final reviewing agency in the State Department relied heavily upon this
presumption in determining that Cort had lost his citizenship. The Board of Review on the Loss of
Nationality, in its memorandum affirming the initial administrative determination that Cort had lost
his citizenship, stated that '(b)y failing to comply with the notices sent to him by his local board, Dr.
Cort brought upon himself the presumption mentioned in Section 349(a)(10), that his continued
absence from the United States was for the purpose of evading or avoiding training and service in
the military, air, or naval forces of the United States. Even if the Board should consider that the
presumption could be overcome by showing that a person remained abroad for a purpose other than
to avoid the military service, the evidence in Dr. Cort's case, taken as a whole, does not show that he
remained abroad for a purpose other than to avoid being drafted.' (Emphasis added.) One of the
Board's specific findings was 'that Dr. Cort has not overcome the presumption raised in the last
sentence of Section 349(a)(10) of the Immigration and Nationality Act.'

As was said in Speiser v. Randall, [1958] USSC 154; 357 U.S. 513, at 520--521[1958] USSC 154;
, 78 S.Ct. 1332, at [1958] USSC 154; 1339, 2 L.Ed.2d 1460, 'it is commonplace that the outcome of
a lawsuit--and hence the vindication of legal rights--depends more often on how the factfinder
appraises the facts than on a disputed construction of a statute or interpretation of a line of
precedents. Thus the procedures by which the facts of the case are determined assume an
importance fully as great as the validity of the substantive rule of law to be applied. And the more
important the rights at stake the more important must be the procedural safe-guards surrounding
those rights.'

The presumption created by § 349(a)(10) is wholly at odds with the decisions of the Court which
hold that in cases such as this a heavy burden is upon the Government to prove an act of
expatriation by clear, convincing, and unequivocal evidence. Gonzales v. Landon, 350 U.S. 920, 76
S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, [1958] USSC 55; 356 U.S. 129, 78 S.Ct. 612, 2
L.Ed.2d 659. This standard commands that 'evidentiary ambiguities are not to be resolved against
the citizen.' Nishikawa v. Dulles, 356 U.S., at 136, 78 S.Ct., at 617.

Without pausing to consider whether this evidentiary standard is a constitutional one, it is clear to
me that the statutory presumption here in question is constitutionally invalid because there is
insufficient 'rational connection between the fact proved and the ultimate fact presumed.' Tot v.
United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519. 'A statute creating a
presumption that is arbitrary or that operates to deny a fair opportunity to repeal it violates the due
process clause of the Fourteenth Amendment.' Manley v. Georgia, [1929] USSC 38; 279 U.S. 1,
6[1929] USSC 38; , 49 S.Ct. 215, 217[1929] USSC 38; , 73 L.Ed. 575. A federal statute which
creates such a presumption is no less violative of Fifth Amendment due process. 'Mere legislative
fiat may not take the place of fact in the determination of issues involving life, liberty or property.'
Ibid. It is 'essential that there shall be some rational connection between the fact proved and the
ultimate fact presumed, and that the inference of one fact from proof of another shall not be so
unreasonable as to be a purely arbitrary mandate.' Mobile, J. & K.C.R. Co. v. Turnipseed, [1910]
USSC 207; 219 U.S. 35, 43[1910] USSC 207; , 31 S.Ct. 136, 138[1910] USSC 207; , 55 L.Ed. 78.
Cf. Speiser v. Randall, supra.

The failure of a person abroad to comply with notices sent by his draft board would obviously be
relevant evidence in determining whether that person had gone or remained abroad for the purpose
of avoiding military service. But the statute goes much further. It creates a presumption of an
expatriating act from failure to comply with 'any provision of any compulsory service laws' by a
citizen abroad, regardless of the nature of the violations and regardless of the innocence of his
purpose in originally leaving the United States. The various compulsory service laws of the United
States contain a multitude of provisions, many of them technical or relatively insignificant. To draw
from the violation of a single such provision a presumption of expatriation, with its solemn
consequences, is, I think, to engaged in irrationality so gross as to be constitutionally impermissible.
It is clear from the record in this case that Court's sole purpose in leaving the United States in 1951
was to accept a position as a Research Fellow at the University of Cambridge, England. The record
also makes clear that in 1946 Cort was called up under the Selective Service law, physically
examined, and classified as 4F because of physical disability. The record further shows that Cort
voluntarily registered under the Doctors Draft Act, making special arrangements with his draft
board to do so in advance of the effective date for registration under the statute, a few days before
he left for Europe. Cort filed an affidavit in which he swore that it was his belief, in the light of his
physical disability, that the induction order which he received in England was not issued in good
faith to secure his military service, but that its purpose instead was to force him to return to the
United States to be investigated by the House Committee on Un-American Activities or prosecuted
under the Smith Act. He has made repeated efforts to arrange with Selective Service officials for the
fulfillment, albeit belatedly, of his military obligations, if any, and in 1959 his wife came to the
United States and met with officials of the Selective Service system for that purpose. The very
reason he applied in Prague for a United States passport was, as he swore, so that he could return to
the United States in order to respond to the indictment for draft evasion now pending against him in
Massachusetts and to fulfill his Selective Service obligations, if any. When Cort applied in Prague
for a passport, the American Consul there, who interviewed him, stated his opinion in writing that
he had no reason to disbelieve Cort's sworn statement that he had not remained outside the United
States to avoid military service.17 I mention this evidence as disclosed by the present record only to
indicate why I think a new administrative hearing freed from the weight of the statutory
presumption is in order, not to imply any prejudgment of what I think the ultimate administrative
decision should be.

In No. 3, Rusk v. Cort, I would vacate the judgment of the District Court and remand the case with
instructions to declare null and void the certificate of loss of nationality issued to Court by the
Secretary of State, so that upon Cort's renewed application for a passport, an administrative hearing
could be had, free of the evidentiary presumption of § 349(a)(10). In the event that such
administrative proceedings should result in a finding that Cort had lost his United States citizenship,
he would be entitled to a de novo judicial hearing18 in which the Government would have the
burden of proving an act of expatriation by clear, convincing and unequivocal evidence. Gonzales v.
Landon, 350 U.S. 920, 76 S.Ct. 210, 100 L.Ed. 806; Nishikawa v. Dulles, [1958] USSC 55; 356
U.S. 129, 78 S.Ct. 612, 2 L.Ed.2d 659.

In No. 2, Kennedy v. Mendoza-Martinez, I would reverse the judgment of the District Court.