Schneiderman v. United States

Me. Justice Rutledge,

concurring:

I join in the Court’s opinion. I add what follows only to emphasize what I think is at the bottom of this case.

Immediately we are concerned with only one man, William Schneiderman. Actually, though indirectly, the *166 decision affects millions. If, seventeen years after a federal court adjudged him entitled to be a citizen, that judgment can be nullified and he can be stripped of this most precious right, by nothing more than reexamination upon the merits of the very facts the judgment established, no naturalized person's citizenship is or can be secure. If this can be done after that length of time, it can be done after thirty or fifty years. If it can be done for Schnei-derman, it can be done for thousands or tens of thousands of others.

For all that would be needed would be to produce some evidence from which any one of the federal district judges could draw a conclusion, concerning one of the ultimate facts in issue, opposite from that drawn by the judge decreeing admission. The statute does not in terms prescribe ‘'jurisdictional” facts. 1 But all of the important ones are “jurisdictional,” or have that effect, if by merely drawing contrary conclusion from the same, though conflicting, evidence at any later time a court can overturn the judgment. An applicant might be admitted today upon evidence satisfying the court he had complied with all requirements. That judgment might be affirmed on appeal and again on certiorari here. Yet the day after, or ten years later, any district judge could overthrow it, on the same evidence, if it was conflicting or gave room for contrary inferences, or on different evidence all of which might have been presented to the first court. 2

If this is the law and the right the naturalized citizen acquires, his admission creates nothing more than citizenship in attenuated, if not suspended, animation. He acquires but prima facie status, if that. Until the Gov *167 ernment moves to cancel his certificate and he knows the outcome, he cannot know whether he is in or out. And when that is done, nothing forbids repeating the harrowing process again and again, unless the weariness of the-courts should lead them finally to speak res judicata.

No citizen with such a threat hanging over his head could be free. If he belonged to “off-color” organizations or held too radical or, perhaps, too reactionary views, for some segment of the judicial palate, when his admission took place, he could not open his mouth without fear his words would be held against him. For whatever he might say or whatever any such organization might advocate could be hauled forth at any time to show “continuity” of belief from the day of his admission, or “concealment” at that time. Such a citizen would not be admitted to liberty. His best course would be silence or hypocrisy. This is not citizenship. Nor is it adjudication.

It may be doubted that the framers of the Constitution intended to create two classes of citizens, one free and independent, one haltered with a lifetime string tied to its status. However that may be, and conceding that the power to revoke exists and rightly should exist to some extent, the question remains whether the power to admit can be delegated to the courts in such a way that their determination, once made, determines and concludes nothing with finality.

If every fact in issue, going to the right to be a citizen, can be reexamined, upon the same or different proof, years or decades later; and if this can be done de novo, as if no judgment had been entered, whether with respect to the burden of proof required to reach a different decision or otherwise, what does the judgment determine? What does it settle with finality? If review is had and the admission is affirmed, what fact is adjudicated, if next day any or all involved can be redecided to the contrary? Can *168 Congress, when it has empowered a court to determine and others to review and confirm, at the same time or later authorize any trial court to overturn their decrees, for causes other than such as have been held sufficient to overturn other decrees? 3

I do not undertake now to decide these questions. Nor does the Court. But they have a bearing on the one which is decided. It is a judgment which is being attacked. Tutun v. United States, 270 U. S. 568 . Accordingly, it will not do to say the issue is identical with what is presented in a naturalization proceeding, is merely one of fact, upon which therefore the finding of the trial court concludes, and consequently we have no business to speak or our speaking is appellate intermeddling. That ignores the vital fact that it is a judgment, rendered in the exercise of the judical power created by Article III, which it is sought to overthrow, 4 not merely a grant like a patent to land or for invention. 5 Congress has plenary power over naturalization. That no one disputes. Nor that this power, for its application, can be delegated to the courts. But this is not to say, when Congress has so placed it, that body can decree in the same breath that the judgment rendered shall have no conclusive effect. Limits it may place. But that is another matter from making an adjudication under Article III merely an advisory opinion or prima facie evidence of the fact or all the facts determined. Congress has, with limited exceptions, plenary power over the jurisdiction of the federal courts. 6 But to confer the jurisdiction and at the same time nullify entirely the effects of its exercise are not matters heretofore thought, *169 when squarely faced, within its authority. 7 To say therefore that the trial court’s function in this case is the same as was that of the admitting court is to ignore the vast difference between overturning a judgment, with its adjudicated facts, and deciding initially upon facts which have not been adjudged. The argument made from the deportation statutes likewise ignores this difference.

It is no answer to say that Congress provided for the redetermination as a part of the statute conferring the right to admission and therefore as a condition of it. For that too ignores the question whether Congress can so condition the judgment and is but another way of saying that a determination, made by an exercise of judicial power under Article III, can be conditioned by legislative mandate so as not to determine finally any ultimate fact in issue.

The effect of cancellation is to nullify the judgment of admission. If it is a judgment, and no one disputes that it is, that quality in itself requires the burden of proof the court has held that Congress intended in order to overturn it. That it is a judgment, and one of at least a coordinate court, which the cancellation proceeding attacks and seeks to overthrow, requires this much at least, that solemn decrees may not be lightly overturned and that citizens may not be deprived of their status merely because one judge views their political and other beliefs with a more critical eye or a different slant, however honestly and sincerely, than another. Beyond this we need not go now in decision. But we do not go beyond our function or usurp another tribunal’s when we go this far. *170 The danger, implicit in finding too easily the purpose of Congress to denaturalize Communists, is that by doing so the status of all or many other naturalized citizens may be put in jeopardy. The other and underlying questions need not be determined unless or until necessity compels it.

Cf., however, the concurring opinion of Mr. Justice Douglas, ante, p. 161.

There is no requirement that the evidence be different from what was presented on admission or “newly discovered.”

Cf. United States v. Throckmorton, 98 U. S. 61 ; Kibbe v. Benson, 17 Wall. 624 . No such cause for cancellation is involved here.

Tutun v. United States, 270 U. S. 568 .

Cf. Johannessen v. United States, 225 U. S. 227 .

Cf. Lockerty v. Phillips, 319 U. S. 182 .