3d Session

Part 2

EXPEDITE THE DEPORTATION OF CERTAIN ALIENS

FEBRUARY 24, 1931.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. DICKSTEIN, from the Committee on Immigration and Naturalization, submitted the following

MINORITY VIEWS

[To accompany H. R. 17152]

GENERAL CHARACTER OF THE BILL

This is one of the most dangerous and revolutionary measures that has been reported to the House in many years and raises most serious questions, not only of public policy but of constitutionality. It has been reported, notwithstanding unheeded demands for a hearing from important religious and civic organizations throughout the land, and it is sought to push it through, in the eleventh hour of this Congress, in such fashion that it is hoped that its grave vices may not attract public attention, either by reason of agitation within or without Congress-until it has been enacted "overnight." It was introduced almost at the very moment when the Chief Justice of the United States warned us most solemnly on Lincoln's Birthday before the Federal Bar Association in the National Capital against the grave danger of ever-growing despotic administrative power (see report in the Congressional Record Appendix for February 16, 1931) and shortly before Lord Chief Justice Hewart of England published a book of the same trend under the significant title The New Despotism. (1929.) Neither of them, however, had any idea of how far such violation of fundamental human rights and Bills of Rights-as embedded in the United States Constitution-could be carried, as this bill embodies. No graver violation of individual liberty was ever attempted in this country, not even by the infamous alien and sedition acts of 1798, which resulted in driving the Federalist Party out of office, and whose violations of fundamental American rights was so great that Alexander Hamilton and John Marshall (the latter at the risk of permanent retirement from public life), joined their great rivals, Jefferson and Hamilton, in vehement opposition to them. If Congress will not heed the warning herein embodied, I predict that their constituents 3-6-31

at the polls will be less complacent, when they understand the real nature and workings of this measure, and will hold the administration responsible, which is using its full power (short of the Presidency, at least) to enact this shock ng and demagogic measure. Moreover, as will presently appear, it is not only gravely violative of treaties, but it will prove a "boomerang" in the enforcement of all our deportation measures though its proponents are too short-sighted to follow the arguments I have presented in committee to that effect-and I, for one, believe in the just and proper enforcement of laws for deporting the alien criminal, for instance.

CIRCUMSTANCES ATTENDING PREPARATION OF THIS DANGEROUS "COERCED" DEPARTMENTAL MEASURE

Before going into the merits of the bill, I want to preface this discussion with a brief narrative of its genesis, for chief responsibility for the measure belongs to the Senate (to which a companion bill, S. 6172, introduced by Senator Hayden, of Arizona, was reported on the 17th instant, accompanied by S. Rept. No. 1640), or rather to Senator Hayden and Secretary of Labor Doak-whom he successfully "baited" by his Resolution No. 355, adopted December 8, 1930, compelling him to ask for more anarchistical and lawless laws, to overcome charges of alleged laxness of his department in failing to deport mythical millions of aliens claimed to be unlawfully in the United States, but which, more conservatively, Secretary Doak figured in his answer (printed as S. Doc. No. 237) as about 400,000, only 100,000 of whom he estimated to be deportable to-day, in view of the statute of limitations and other grounds.

His report further shows that the alleged "laxness" in deporting aliens involving chiefly failure of Congress to make adequate appropriations manifests itself in 92,157 aliens deported during the past 10 years in warrant proceedings, and 95,147 who were permitted during the past six years to depart voluntarily, an aggregate of 187,304, despite the heartrending circumstances attending many of these deportations. These figures may be profitably supplemented by resort to the last annual report of the Commissioner General of Immigration, showing that 23,648 deportations took place during the fiscal year ending June 30, 1930, including 7,017 warrants of deportation on hand held by field officers not yet executed. By referring to the report just cited (p. 241) we find that deportations have increased in number to this stage from 4,517 for the fiscal year ending 1921, 4,345 for 1922, 3,661 for 1923, 6,409 for 1924, 9,495 for 1925, 10,904 for 1926, 11,662 for 1927, 12,908 for 1929, and above-mentioned army of 16,631 for 1930. Such is the alleged "laxness," emphasized by a Representative of a State, which would really become tenfold as important and happy if it had its fair quota of immigrants. The newly appointed Secretary of Labor frankly admitted before the Senate Committee on Immigration 18 days before he sent this letter to the Senate, in answer to Senator Hayden's resolution (Senate hearings on S. J. Res. 207, p. 89) that he had found, even in the short time of 10 days that he had been in office as head of the Labor Department, "that the immigration problem is so terribly involved, even under existing law, that if we could have some little time to seriously go into it and simplify the law we would be perhaps very much better off."

However, thanks to the "baiting" mentioned above, he submitted in aforementioned letter, certain recommendations for legislation (pp. 5-7), the value, wisdom, and policy of which he could not possibly have personally acquired enough knowledge to judge about, and which must have been drafted by some overzealous, foolish, unbalanced subordinate, unconscious of the real effects of his measure, and of the value of Bill of Rights in our Constitution and of the blessings of individual liberty, which made our country what it is. This shows how this hastily-prepared, unwise, dangerous, "coerced” departmental recommendation-suggested at a time of abnormal distress, which, of course, tends to obscure our vision--became the basis of a proposal for "permanent legislation," and is supposed to have become an administration measure, to be forced through in the manner above mentioned, without adequate consideration or the usual public hearing, and after the congressional draftsmen have gone the Secretary 'one better." As the bill became, however, primarily, a Senate bill, frequent reference will be made herein to the Senate report, often unconsciously illuminating and frank.

VESTING AUTHORITY TO ISSUE WARRANTS IN SUBORDINATE OFFICERS

Section 1 of the bill vests authority in the Secretary of Labor to authorize subordinates to issue warrants of arrest in deportation cases, he being thereby permitted to give such authority to any "official of the Department of Labor or the United States Immigration Service." The draftsman of the Secretary's letter explains the need for making such new provision for exercising this very drastic and dangerous highly delicate power-authorizing issuance of warrants of arrest unlimited in number, and under which under subsisting law an army of 16,631 were not only arrested but deported during the last fiscal year by warrants issued by the Secretary and Assistant Secretaries of Labor, nearly five times as many as in 1923-by stating that:

The institution of deportation proceedings is very frequently delayed and often made impossible by the fact that under the law warrants of arrest may be issued only by the Secretary of Labor ac Washington In many cases the officers, after locating an alien believed to be subject to deportation, are delayed in taking him into custody pending the issuance of such warrants of arrest, and this often affords an alien an opportunity to evade arrest.

This statement, however, is decidedly disingenuous, to put it mildly. First of all, it suppresses the fact that the Assistant Secretaries of Labor have already been held by the United States Supreme Court authorized by subsisting law to issue warrants, and do so constantly. The language of this section of the bill was evidently intended, in its reference in the first phrase to "officials of the Department of Labor," to authorize action by others than the assistant secretaries, and this undefined phrase is broad enough to authorize designation of the janitor of the departmental building. That this is not a wild supposed selection will presently appear, when I show that the real purpose of the bill is to vest this very serious and dangerous executive power-whose very existence the founders of the republic expressly challenged-in irresponsible petty officials, not appointed by the President and confirmed by the Senate, and willing to risk action which such important officials, with reputations to maintain, would not dare

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exercise in particular cases and in wholesale fashion. The draftsman of the Secretary's letter was also disingenuous in ignoring the immigration regulation (rule 19) of the secretary, which governs issuance of warrants of arrest in deportation proceedings, and have repeatedly passed court muster, which expressly authorize "telegraphic application * * ** in case of necessity, or when some substantial interest of the Government would be subserved thereby" (rule 19, subdivision B), as also (subdivision D) "telegraphic warrants of arrest."

Seldom, if ever, even in most urgent cases, would it take substantially longer to make such telegraphic application to Washington and get such "telegraphic" warrant of arrest from the assistant secretary (or "officials" acting under his eye, at least) than by applying to local officers nearby, who would take much longer even in filling them out, because of less familiarity with the question. In justice to the legality of the rules it should be pointed out that where a telegraphic warrant is applied for, it must be simultaneously applied for by letter, inclosing the sworn proof. Moreover, as will be presently shown, even now petty local officers do not balk at making arrests of aliens without warrants themselves, or get local police officials to do so for them, in the latter case under the actual or imaginary pretense, that a crime was committed by the respondent. Returning, however, to the bill itself, we recur to the clause authorizing the secretary to delegate this dangerous, highly delicate discretionary power to any official of the "United States Immigration Service." What was said before of course applies even more strongly here, as to such persons thereby included, not appointed by the President, nor confirmed by the Senate, but often petty $1,800 a year inspectors, overzealous, seeking to make records, wholly lacking in discretion and judgment, who may be, and are likely to be, vested with this dangerous power, which will just as easily be exercised against United States citizens, under the pretense that they are claimed to be aliens.

Heretofore a limited number of inspectors have been designated under the rule by the Secretary-not to issue warrants, but to investigate the facts, report to him, get the warrants of arrest, conduct the hearings as his agents, and then submit the matter to his determination, with their recommendations. These lay inspectors have acquired some skill and judgment and incidental knowledge of the law, but this new "mania of deportation"-artificially engendered as above set forth-wants hundreds of thousands to be deported, instead of thousands, and to disregard the constitutional safeguards applicable to these proceedings; and scores or hundreds of ignorant novices-perhaps looking for a "fat job" in these times of unemployment and stress, may be appointed, and are in fact likely to be appointed-to themselves judge whether even the initial warrants of arrest should issue. When issued, the terrifically drastic "burden of proof" provision of the subsisting and enlarged new law comes into play against the unfortunate alien; he will often be too poor even to employ counsel, or is likely to be cajoled or deceived into saying that he does not want counsel, as occurred in a number of reported cases, and decisions are made by the Secretary (commonly rubber stamping of the inspector's recommendation) which legislative fiat says shall be nonreviewable in the courts and which commonly are so in fact, as we shall presently see.

What is really involved is to avoid the rules necessary under the constitutional provisions as to "due process of law" applicable even to such administrative cases, in order to make the deportation statute constitutional, as set forth by the United States Supreme Court in the leading "Japanese Immigrant Case" (189 U. S. 86, providing among other things that officers shall make thorough investigation beforehand of all cases, when they are credibly informed or have reason to believe that a specified alien in the United States is subject to arrest and deportation on warrant (rule 19, subdivision A). The rule goes on to provide that the immigration officials shall report the facts to the Secretary (following prescribed details, but, as seen, telegraphic first, if necessary or desirable), and it is the Secretary and Assistant Secretaries alone, who may decide if a warrant of arrest is justified. If the person has been convicted of a deportable crime, for instance, little time need be spent in deciding to issue a warrant. If he has become a public charge with the burden thrown on him by law to establish right of continued residence the same is commonly true. If he is found just past the frontier after a surreptitious entry, that is also true. Such have heretofore been the great majority of cases.

It is important to observe, however, that each case requires, under the Constitution, individual investigation and consideration, before arrest, similar to criminal cases. "John Doe" warrants, with the persons unknown and unidentified when issued, are forbidden by these rules, in order to meet the constitutional requirements. Wholesale raids and "detentions" (really arrests) are forbidden thereby, and even when pursued under the Chinese exclusion laws, President Roosevelt stopped "wholesale raids and arrests" of Chinese persons as unconstitutional and violative of treaties, and incidentally as impolitic, as even weak China invoked-in support of her demand that we observe treaty faith, which we violated by these performances an "economic boycott" against American goods, hitting the American pocketbook, which proved very effective. We thus sce that constitutional safeguards and protection to these aliens, guaranteed by our treaties with them, are involved, and the real scheme is to find legislative expedients to violate them, in conducting this brutal, despotic, ill-advised, and inhuman crusade, already begun in New York, as we will presently see, under the impetus of Senator Hayden's inquiry and Secretary Doak's coerced answer.

CONSTITUTIONAL AND TREATY SAFEGUARDS INVOLVED

When the deportation statute first came before the United States Supreme Court in above-cited "Japanese Immigrant Case" in 1903, the court was confronted by an able decision of the United States district court in re Yamasaka (95 F. 652), holding that a domiciled alien could not be deported by executive action in such extra constitutional method, under the statute as phrased. But in the somewhat analogous Chinese registration law case of Fong Yue Ting. United States (149 U. S. 698), where, however, the court dealt with explicit statutory language, providing for a judicial hearing in the attempted deportation for nonregistration, the court, by a divided vote of 6 to 3-its three ablest members, Judges Brewer, Field, and Chief Justice Fuller, dissenting in vehement opinions-sustained the law as constitutional, putting aside the questions of policy, which the law-making power