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301 U.S. 619 301 U.S. 672  

As Amended June 1, 1937. [301 U.S. 619, 620]   Messrs. Homer S. Cummings, Atty. Gen., Robert H. Jackson, Asst. Atty. Gen., and Charles E. Wyzanski, Jr., Sp. Asst. Atty. Gen., for petitioners.

[301 U.S. 619, 625]   Messrs. Edward F. McClennen and Jacob J. Kaplan, both of Boston, Mass ., for respondent.

In Steward Machine Co. v. Davis, 301 U.S. 548 , 57 S.Ct. 883, 81 L.Ed . --, decided this day, we have upheld the validity of Title IX of the act ( section 901 et seq. (42 U.S.C.A. 1101 et seq.)), imposing an excise upon employers of eight or more. In this case Titles VIII and II (sections 801 et seq., 201 et seq. (42 U.S.C.A. 1001 et seq., 401 et seq.)) are the subject of attack. Title VIII lays another excise upon employers in addition to the one imposed by Title IX (though with different exemptions). It lays a special income tax upon employees to be deducted from their wages and paid by the employers. Title II provides for the payment of Old Age Benefits, and supplies the motive and occasion, in the view of the assailants of the statute, for [301 U.S. 619, 635]   the levy of the taxes imposed by Title VIII. The plan of the two titles will now be summarized more fully.

The first section of this title creates an account in the United States Treasury to be known as the 'Old-Age [301 U.S. 619, 636]   Reserve Account.' Section 201 (42 U.S.C.A. 401). No present appropriation, however, is made to that account. All that the statute does is to authorize appropriations annually thereafter, beginning with the fiscal year which ends June 30, 1937. How large they shall be is not known in advance. The 'amount sufficient as an annual premium' to provide for the required payments is 'to be determined on a reserve basis in accordance with accepted actuarial principles, and based upon such tables of mortality as the Secretary of the Treasury shall from time to time adopt, and upon an interest rate of 3 per centum per annum compounded annually.' Section 201(a), 42 U.S.C.A. 401(a). Not a dollar goes into the Account by force of the challenged act alone, unaided by acts to follow.

Section 202 and later sections (42 U.S.C.A. 402 et seq.) prescribed the form of benefits. The principal type is a monthly pension payable to a person after he has attained the age of 65. This benefit is available only to one who has worked for at least one day in each of at least five separate years since December 31, 1936, who has earned at least $2,000 since that date, and who is not then receiving wages 'with respect to regular employment.' Sections 202(a), (d), 210(c), 42 U.S.C.A. 402(a, d ), 410(c). The benefits are not to begin before January 1, 1942. Section 202(a), 42 U.S.C.A. 402(a). In no event are they to exceed $85 a month. Section 202(b), 42 U.S.C.A. 402(b). They are to be measured (subject to that limit) by a percentage of the wages, the percentage decreasing at stated intervals as the wages become higher. Section 202(a), 42 U.S.C.A. 402(a). In addition to the monthly benefits, provision is made in certain contingencies for 'lump sum payments' of secondary importance. A summary by the Government of the four situations calling for such payments is printed in the margin. 1   [301 U.S. 619, 637]   This suit is brought by a shareholder of the Edison Electric Illuminating Company of Boston, a Massachusetts corporation, to restrain the corporation from making payments and deductions called for by the act, which is stated to be void under the Constitution of the United States. The bill tells us that the corporation has decided to obey the statute, that it has reached this decision in the face of the complainant's protests, and that it will make the payments and deductions unless restrained by a decree. The expected consequences are indicated substantially as follows: The deductions from the wages of the employees will produce unrest among them, and will be followed, it is predicted, by demands that wages be increased. If the exactions shall ultimately be held void, the company will have parted with moneys which as a practical matter it will be impossible to recover. Nothing is said in the bill about the promise of indemnity. The prediction is made also that serious consequences will en- [301 U.S. 619, 638]   sue if there is a submission to the excise. The corporation and its shareholders will suffer irreparable loss, and many thousands of dollars will be subtracted from the value of the shares. The prayer is for an injunction and for a declaration that the act is void.

A petition for certiorari followed. It was filed by the intervening defendants, the Commissioner, and the Collector, and brought two questions, and two only, to our [301 U.S. 619, 639]   notice. We were asked to determine: (1) 'Whether the tax imposed upon employers by section 804 of the Social Security Act (42 U.S.C.A. 1004) is within the power of Congress under the Constitution,' and (2) 'Whether the validity of the tax imposed upon employees by section 801 of the Social Security Act (42 U.S.C.A. 1001) is properly in issue in this case, and if it is, whether that tax is within the power of Congress under the Constitution.' The defendant corporation gave notice to the clerk that it joined in the petition, but it has taken no part in any subsequent proceedings. A writ of certiorari issued. 301 U.S. 674 , 57 S.Ct. 792, 81 L. Ed. --.

Was the conduct of the company in resolving to pay the taxes a legitimate exercise of the discretion of the directors? Has petitioner a standing to challenge that resolve in the absence of an adequate showing of irreparable injury? Does the acquiescence of the company in the equitable remedy affect the answer to those questions? Though power may still be ours to take such objections for ourselves, is acquiescence effective to rid us of the duty? Is duty modified still further by the attitude of the Government, its waiver of a defense under section 3224 of the Revised Statutes (26 U.S.C.A. 1543), its waiver of a defense that the legal remedy is adequate, its earnest request that we determine whether the law shall stand or fall? The writer of this opinion believes that the remedy is ill conceived, that in a controversy such as this a court must refuse to give equitable relief when a cause of action in equity is neither pleaded nor proved, and that the suit for an injunction should be dismissed upon that ground. He thinks this course should be followed in adherence to the general rule that constitutional questions are not to be determined in the absence of strict necessity. In that view he is supported by Mr. Justice BRANDEIS, Mr. Justice STONE, and Mr. Justice ROBERTS. However, a majority of the [301 U.S. 619, 640]   court have reached a different conclusion. They find in this case extraordinary features making it fitting in their judgment to determine whether the benefits and the taxes are valid or invalid. They distinguish Norman v. Consolidated Gas Co., 89 F.(2d) 619, recently decided by the Circuit Court of Appeals for the Second Circuit, on the ground that in that case, the remedy was challenged by the company and the Government at every stage of the proceeding, thus withdrawing from the court any marginal discretion. The ruling of the majority removes from the case the preliminary objection as to the nature of the remedy which we took of our own motion at the beginning of the argument. Under the compulsion of that ruling, the merits are now here.

Congress may spend money in aid of the 'general welfare.' Constitution, art. 1, 8; United States v. Butler, 297 U.S. 1, 65 , 56 S. Ct. 312, 319, 102 A.L.R. 914. Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents. Yet difficulties are left when the power is conceded. The line must still be drawn between one welfare and another, between particular and general. Where this shall be placed cannot be known through a formula in advance of the event. There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power, not an exercise of judgment. This is now familiar law. [301 U.S. 619, 641]   'When such a contention comes here we naturally require a showing that by no reasonable possibility can the challenged legislation fall within the wide range of discretion permitted to the Congress.' United States v. Butler, supra, 297 U.S. 1 , at page 67, 56 S.Ct. 312, 320, 102 A.L.R. 914. Cf. Cincinnati Soap Co. v. United States, 301 U.S. 308 , 57 S.Ct. 764, 81 L.Ed. --, May 3, 1937; United States v. Realty Co., 163 U.S. 427, 440 , 16 S.Ct. 1120; Head Money Cases, 112 U.S. 580, 595 , 5 S.Ct. 247. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the times.

The purge of nation-wide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. Unemployment spreads from state to state, the hinterland now settled that in pioneer days gave an avenue of escape. Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 442 , 54 S.Ct. 231, 241, 88 A.L.R. 1481. Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co., supra, has set the doubt at rest. But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.

Congress did not improvise a judgment when it found that the award of old age benefits would be conducive to the general welfare. The President's Committee on Economic Security made an investigation and report, aided by a research staff of Government officers and employees, and by an Advisory Council and seven other advisory [301 U.S. 619, 642]   groups. 2 Extensive hearings followed before the House Committee on Ways and Means, and the Senate Committee on Finance. 3 A great mass of evidence was brought together supporting the policy which finds expression in the act. Among the relevant facts are these: The number of persons in the United States 65 years of age or over is increasing proportionately as well as absolutely. What is even more important the number of such persons unable to take care of themselves is growing at a threatening pace. More and more our population is becoming urban and industrial instead of rural and agricultural. 4 The evidence is impressive that among industrial workers the younger men and women are preferred over the older. 5 In times of retrenchment the older are commonly the first to go, and even if retained, their wages are likely to be lowered. The plight of men and women at so low an age as 40 is hard, almost hopeless, when they are driven to seek for reemployment. Statistics are in the brief. A few illustrations will be chosen from many there collected. In 1930, out of 224 American factories investigated, 71, or almost one third, had fixed maximum hiring age limits; in 4 plants the limit was under 40; in 41 it was under 46. In the other 153 plants there were no fixed limits, but in practice few were hired if they were over 50 years of age. 6 With the loss of savings inevitable in periods of idleness, [301 U.S. 619, 643]   the fate of workers over 65, when thrown out of work, is little less than desperate. A recent study of the Social Security Board informs us that 'one-fifth of the aged in the United States were receiving old-age assistance, emergency relief, institutional care, employment under the works program, or some other form of aid from public or private funds; two- fifths to one-half were dependent on friends and relatives, one-eighth had some income from earnings; and possibly one-sixth had some savings or property. Approximately three out of four persons 65 or over were probably dependent wholly or partially on others for support.' 7 We summarize in the margin the results of other studies by state and national commissions. 8 They point the same way. [301 U.S. 619, 644]   The problem is plainly national in area and dimensions. Moreover, laws of the separate states cannot deal with it effectively. Congress, at least, had a basis for that belief. States and local governments are often lacking in the resources that are necessary to finance an adequate program of security for the aged. This is brought out with a wealth of illustration in recent studies of the problem. 9 Apart from the failure of resources, states and local governments are at times reluctant to increase so heavily the burden of taxation to be borne by their residents for fear of placing themselves in a position of economic disadvantage as compared with neighbors or competitors. We have seen this in our study of the problem of unemployment compensation. Steward Machine Co. v. Davis, supra. A system of old age pensions has special dangers of its own, if put in force in one state and rejected in another. The existence of such a system is a bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose. Only a power that is national can serve the interests of all.

Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here as often is with power, not with wisdom. Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government [301 U.S. 619, 645]   may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. 10

As to this we need not add to our opinion in Steward Machine Co. v. Davis, supra, where we considered a like question in respect of Title IX. [301 U.S. 619, 646]   Fifth: The tax is not invalid as a result of its exemptions.

[ Footnote 1 ] (1) If through an administrative error or delay a person who is receiving a monthly pension dies before he receives the correct amount, the amount which should have been paid to him is paid in a lump sum to his estate (section 203(c) 42 U.S.C.A. 403(c)).

[ Footnote 2 ] Report to the President of the Committee on Economic Security, 1935.

[ Footnote 3 ] Hearings before the House Committee on Ways and Means on H.R. 4120, 74th Congress, 1st session; Hearings before the Senate Committee on Finance on S. 1130, 74th Congress, 1st Session.

[ Footnote 4 ] See Report of the Committee on Recent Social Trends, 1932, vol. 1, pp. 8, 502; Thompson and Whelpton, Population Trends in the United States, pp. 18, 19.

[ Footnote 5 ] See the authorities collected at pp. 54-62 of the Government's brief.

[ Footnote 6 ] Hiring and Separation Methods in American Industry, 35 Monthly Labor Review, pp. 1005, 1009.

[ Footnote 7 ] Economic Insecurity in Old Age (Social Security Board, 1937), p. 15.

[ Footnote 8 ] The Senate Committee estimated, when investigating the present act, that over one half of the people in the United States over 65 years of age are dependent upon others for support. Senate Report, No. 628, 74th Congress, 1st Session, p. 4. A similar estimate was made in the Report to the President of the Committee on Economic Security, 1935, p. 24.

[ Footnote 9 ] Economic Insecurity in Old Age, supra, chap. VI, p. 184.

[ Footnote 10 ] IV Channing, History of the United States, p. 404 (South Carolina Nullification); 8 Adams, History of the United States (New England Nullification and the Hartford Convention).

Section 202 (n) of the Social Security Act, as amended, provides for the termination of old-age benefits payable to an alien who, after the date of its enactment (September 1, 1954), is deported under 241 (a) of the Immigration and Nationality Act on any one of certain grounds specified in 202 (n). Appellee, an alien who had become eligible for old-age benefits in 1955, was deported in 1956, pursuant to 241 (a) of the Immigration and Nationality Act, for having been a member of the Communist Party from 1933 to 1939. Since this was one of the grounds specified in 202 (n), his old-age benefits were terminated shortly thereafter. He commenced this action in a single-judge District Court, under 205 (g) of the Social Security Act, to secure judicial review of that administrative decision. The District Court held that 202 (n) deprived appellee of an accrued property right and, therefore, violated the Due Process Clause of the Fifth Amendment. Held:

169 F. Supp. 922, reversed.

From a decision of the District Court for the District of Columbia holding 202 (n) of the Social Security Act (68 Stat. 1083, as amended, 42 U.S.C. 402 (n)) unconstitutional, the Secretary of Health, Education, and Welfare takes this direct appeal pursuant to 28 U.S.C. 1252. The challenged section, set forth in full in the margin, 1 provides for the termination of old-age, survivor, [363 U.S. 603, 605]   and disability insurance benefits payable to, or in certain cases in respect of, an alien individual who, after September 1, 1954 (the date of enactment of the section), is deported under 241 (a) of the Immigration and Nationality Act (8 U.S.C. 1251 (a)) on any one of certain grounds specified in 202 (n).

Appellee, an alien, immigrated to this country from Bulgaria in 1913, and became eligible for old-age benefits in November 1955. In July 1956 he was deported pursuant to 241 (a) (6) (C) (i) of the Immigration and Nationality Act for having been a member of the Communist Party from 1933 to 1939. This being one of the benefit-termination deportation grounds specified in 202 (n), appellee's benefits were terminated soon thereafter, and notice of the termination was given to his wife, [363 U.S. 603, 606]   who had remained in this country. 2 Upon his failure to obtain administrative reversal of the decision, appellee commenced this action in the District Court, pursuant to 205 (g) of the Social Security Act (53 Stat. 1370, as amended, 42 U.S.C. 405 (g)), to secure judicial review. 3 On cross-motions for summary judgment, the District Court ruled for appellee, holding 202 (n) unconstitutional under the Due Process Clause of the Fifth Amendment in that it deprived appellee of an accrued property right. 169 F. Supp. 922. The Secretary prosecuted an appeal to this Court, and, subject to a jurisdictional question hereinafter discussed, we set the case down for plenary hearing. 360 U.S. 915 .

The preliminary jurisdictional question is whether 28 U.S.C. 2282 is applicable, and therefore required that the case be heard below before three judges, rather than by a single judge, as it was. Section 2282 forbids the issuance, except by a three-judge District Court, of [363 U.S. 603, 607]   any "interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution . . . ." Neither party requested a three-judge court below, and in this Court both parties argue the inapplicability of 2282. If the provision applies, we cannot reach the merits, but must vacate the judgment below and remand the case for consideration by a three-judge District Court. See Federal Housing Administration v. The Darlington, Inc., 352 U.S. 977 .

Under the decisions of this Court, this 205 (g) action could, and did, draw in question the constitutionality of 202 (n). See, e. g., Anniston Mfg. Co. v. Davis, 301 U.S. 337, 345 -346. However, the action did no more. It did not seek affirmatively to interdict the operation of a statutory scheme. A judgment for appellee would not put the operation of a federal statute under the restraint of an equity decree; indeed, apart from its effect under the doctrine of stare decisis, it would have no other result than to require the payment of appellee's benefits. In these circumstances we think that what was said in Garment Workers v. Donnelly Co., 304 U.S. 243 , where this Court dealt with an analogous situation, is controlling here:

We hold that jurisdiction over the action was properly exercised by the District Court, and therefore reach the merits.

The general purposes underlying the Social Security Act were expounded by Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 640 -645. The issue here, however, requires some inquiry into the statutory scheme by which those purposes are sought to be achieved. Payments under the Act are based upon the wage earner's record of earnings in employment or self-employment covered by the Act, and take the form of old-age insurance and disability insurance benefits inuring to the wage earner (known as the "primary beneficiary"), and of benefits, including survivor benefits, payable to named dependents ("secondary beneficiaries") of a wage earner. Broadly speaking, eligibility for benefits depends on satisfying statutory conditions as to (1) employment in covered employment or self-employment (see 210 (a), 42 U.S.C. 410 (a)); (2) the requisite number of "quarters of coverage" - i. e., three-month periods during which not less than a stated sum was earned - the number depending generally on age (see 213-215, 42 U.S.C. 413-415); and (3) attainment of the retirement age (see 216 (a), 42 U.S.C. 416 (a)). 202 (a), 42 U.S.C. 402 (a). 4 Entitlement to benefits once gained, [363 U.S. 603, 609]   is partially or totally lost if the beneficiary earns more than a stated annual sum, unless he or she is at least 72 years old. 203 (b), (e), 42 U.S.C. 403 (b), (e). Of special importance in this case is the fact that eligibility for benefits, and the amount of such benefits, do not in any true sense depend on contribution to the program through the payment of taxes, but rather on the earnings record of the primary beneficiary.

The Social Security system may be accurately described as a form of social insurance, enacted pursuant to Congress' power to "spend money in aid of the `general welfare,'" Helvering v. Davis, supra, at 640, whereby persons gainfully employed, and those who employ them, are taxed to permit the payment of benefits to the retired and disabled, and their dependents. Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. But each worker's benefits, though flowing from the contributions he made to the [363 U.S. 603, 610]   national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation. It is apparent that the noncontractual interest of an employee covered by the Act cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments.

It is hardly profitable to engage in conceptualizations regarding "earned rights" and "gratuities." Cf. Lynch v. United States, 292 U.S. 571, 576 -577. The "right" to Social Security benefits is in one sense "earned," for the entire scheme rests on the legislative judgment that those who in their productive years were functioning members of the economy may justly call upon that economy, in their later years, for protection from "the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near." Helvering v. Davis, supra, at 641. But the practical effectuation of that judgment has of necessity called forth a highly complex and interrelated statutory structure. Integrated treatment of the manifold specific problems presented by the Social Security program demands more than a generalization. That program was designed to function into the indefinite future, and its specific provisions rest on predictions as to expected economic conditions which must inevitably prove less than wholly accurate, and on judgments and preferences as to the proper allocation of the Nation's resources which evolving economic and social conditions will of necessity in some degree modify.

To engraft upon the Social Security system a concept of "accrued property rights" would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands. See Wollenberg, Vested Rights in Social-Security Benefits, 37 Ore. L. Rev. 299, 359. It was doubtless out of an awareness of the need for such flexibility that Congress included in the original Act, and [363 U.S. 603, 611]   has since retained, a clause expressly reserving to it "[t]he right to alter, amend, or repeal any provision" of the Act. 1104, 49 Stat. 648, 42 U.S.C. 1304. That provision makes express what is implicit in the institutional needs of the program. See Analysis of the Social Security System, Hearings before a Subcommittee of the Committee on Ways and Means, House of Representatives, 83d Cong., 1st Sess., pp. 920-921. It was pursuant to that provision that 202 (n) was enacted.

This is not to say, however, that Congress may exercise its power to modify the statutory scheme free of all constitutional restraint. The interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause. In judging the permissibility of the cut-off provisions of 202 (n) from this standpoint, it is not within our authority to determine whether the Congressional judgment expressed in that section is sound or equitable, or whether it comports well or ill with the purposes of the Act. "Whether wisdom or unwisdom resides in the scheme of benefits set forth in Title II, it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Our concern here, as often, is with power, not with wisdom." Helvering v. Davis, supra, at 644. Particularly when we deal with a withholding of a noncontractual benefit under a social welfare program such as this, we must recognize that the Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification. [363 U.S. 603, 612]  

Such is not the case here. The fact of a beneficiary's residence abroad - in the case of a deportee, a presumably permanent residence - can be of obvious relevance to the question of eligibility. One benefit which may be thought to accrue to the economy from the Social Security system is the increased over-all national purchasing power resulting from taxation of productive elements of the economy to provide payments to the retired and disabled, who might otherwise be destitute or nearly so, and who would generally spend a comparatively large percentage of their benefit payments. This advantage would be lost as to payments made to one residing abroad. For these purposes, it is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision, as it is irrelevant that the section does not extend to all to whom the postulated rationale might in logic apply. 5 See United States v. Petrillo, 332 U.S. 1, 8 -9; Steward Machine Co. v. Davis, 301 U.S. 548, 584 -585; cf. Carmichael v. Southern Coal Co., 301 U.S. 495, 510 -513. Nor, apart from this, can it be deemed irrational for Congress to have concluded that the public purse should not be utilized to contribute to the support of those deported on the grounds specified in the statute.

The remaining, and most insistently pressed, constitutional objections rest upon Art. I, 9, cl. 3, and Art. III, [363 U.S. 603, 613]   2, cl. 3, of the Constitution, and the Sixth Amendment. 6 It is said that the termination of appellee's benefits amounts to punishing him without a judicial trial, see Wong Wing v. United States, 163 U.S. 228 ; that the termination of benefits constitutes the imposition of punishment by legislative act, rendering 202 (n) a bill of attainder, see United States v. Lovett, 328 U.S. 303 ; Cummings v. Missouri, 4 Wall. 277; and that the punishment exacted is imposed for past conduct not unlawful when engaged in, thereby violating the constitutional prohibition on ex post facto laws, see Ex parte Garland, 4 Wall. 333. 7 Essential to the success of each of these contentions is the validity of characterizing as "punishment" in the constitutional sense the termination of benefits under 202 (n).

In determining whether legislation which bases a disqualification on the happening of a certain past event imposes a punishment, the Court has sought to discern the objects on which the enactment in question was [363 U.S. 603, 614]   focused. Where the source of legislative concern can be thought to be the activity or status from which the individual is barred, the disqualification is not punishment even though it may bear harshly upon one affected. The contrary is the case where the statute in question is evidently aimed at the person or class of persons disqualified. In the earliest case on which appellee relies, a clergyman successfully challenged a state constitutional provision barring from that profession - and from many other professions and offices - all who would not swear that they had never manifested any sympathy or support for the cause of the Confederacy. Cummings v. Missouri, supra. The Court thus described the aims of the challenged enactment:

Only the other day the governing inquiry was stated, in an opinion joined by four members of the Court, in these terms:

In Ex parte Garland, supra, where the Court struck down an oath - similar in content to that involved in Cummings - required of attorneys seeking to practice before any federal court, as also in Cummings, the finding of punitive intent drew heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and "the fierce passions which that struggle aroused." Cummings v. Missouri, supra, at 322. 8 Similarly, in United States v. Lovett, supra, where the Court invalidated, as a bill of attainder, a statute forbidding - subject to certain conditions - the further payment of the salaries of three named government employees, the determination that a punishment had been imposed rested in large measure on the specific Congressional history which the Court was at pains to spell out in detail. See 328 U.S., at 308 -312. Most recently, in Trop v. Dulles, 356 U.S. 86 , which held unconstitutional a statute providing for the expatriation of one who had been sentenced by a court-martial to dismissal or dishonorable discharge for wartime desertion, the majority of the Court characterized the statute as punitive. However, no single opinion commanded the support of a majority. The plurality opinion rested its determination, at least in part, on its inability to discern any alternative purpose which the statute could be thought to serve. Id., at 97. The concurring opinion found in the specific historical evolution of the provision in question compelling evidence of punitive intent. Id., at 107-109. [363 U.S. 603, 616]  

It is thus apparent that, though the governing criterion may be readily stated, each case has turned on its own highly particularized context. Where no persuasive showing of a purpose "to reach the person, not the calling," Cummings v. Missouri, supra, at 320, has been made, the Court has not hampered legislative regulation of activities within its sphere of concern, despite the often-severe effects such regulation has had on the persons subject to it. 9 Thus, deportation has been held to be not punishment, but an exercise of the plenary power of Congress to fix the conditions under which aliens are to be permitted to enter and remain in this country. Fong Yue Ting v. United States, 149 U.S. 698, 730 ; see Galvan v. Press, 347 U.S. 522, 530 -531. Similarly, the setting by a State of qualifications for the practice of medicine, and their modification from time to time, is an incident of the State's power to protect the health and safety of its citizens, and its decision to bar from practice persons who commit or have committed a felony is taken as evidencing an intent to exercise that regulatory power, and not a purpose to add to the punishment of ex-felons. Hawker v. New York, 170 U.S. 189 . See De Veau v. Braisted, supra (regulation of crime on the waterfront through disqualification of ex-felons from holding union office). Cf. Helvering v. Mitchell, 303 U.S. 391, 397 -401, holding that, with respect to deficiencies due to fraud, a 50 percent addition to the tax imposed was not punishment so as to prevent, upon principles of double jeopardy, its assessment against one acquitted of tax evasion.

Turning, then, to the particular statutory provision before us, appellee cannot successfully contend that the language and structure of 202 (n), or the nature of [363 U.S. 603, 617]   the deprivation, requires us to recognize a punitive design. Cf. Wong Wing v. United States, supra (imprisonment, at hard labor up to one year, of person found to be unlawfully in the country). Here the sanction is the mere denial of a noncontractual governmental benefit. No affirmative disability or restraint is imposed, and certainly nothing approaching the "infamous punishment" of imprisonment, as in Wong Wing, on which great reliance is mistakenly placed. Moreover, for reasons already given (ante, pp. 611-612), it cannot be said, as was said of the statute in Cummings v. Missouri, supra, at 319; see Dent v. West Virginia, 129 U.S. 114, 126 , that the disqualification of certain deportees from receipt of Social Security benefits while they are not lawfully in this country bears no rational connection to the purposes of the legislation of which it is a part, and must without more therefore be taken as evidencing a Congressional desire to punish. Appellee argues, however, that the history and scope of 202 (n) prove that no such postulated purpose can be thought to have motivated the legislature, and that they persuasively show that a punitive purpose in fact lay behind the statute. We do not agree.

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. "[I]t is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void." Fletcher v. Peck, 6 Cranch 87, 128. [363 U.S. 603, 618]  

Section 202 (n) was enacted as a small part of an extensive revision of the Social Security program. The provision originated in the House of Representatives. H. R. 9366, 83d Cong., 2d Sess., 108. The discussion in the House Committee Report, H. R. Rep. No. 1698, 83d Cong., 2d Sess., pp. 5, 25, 77, does not express the purpose of the statute. However, it does say that the termination of benefits would apply to those persons who were "deported from the United States because of illegal entry, conviction of a crime, or subversive activity . . . ." Id., at 25. It was evidently the thought that such was the scope of the statute resulting from its application to deportation under the 14 named paragraphs of 241 (a) of the Immigration and Nationality Act. Id., at 77. 10  

The Senate Committee rejected the proposal, for the stated reason that it had "not had an opportunity to give sufficient study to all the possible implications of this provision, which involves termination of benefit rights under the contributory program of old-age and survivors insurance . . . ." S. Rep. No. 1987, 83d Cong., 2d Sess., p. 23; see also id., at 76. However, in Conference, the proposal was restored in modified form, 11 and as modified was enacted as 202 (n). See H. R. Conf. Rep. No. 2679, 83d Cong., 2d Sess., p. 18.

Appellee argues that this history demonstrates that Congress was not concerned with the fact of a beneficiary's [363 U.S. 603, 619]   deportation - which it is claimed alone would justify this legislation as being pursuant to a policy relevant to regulation of the Social Security system - but that it sought to reach certain grounds for deportation, thus evidencing a punitive intent. 12 It is impossible to find in this meagre history the unmistakable evidence of punitive intent which, under principles already discussed, is required before a Congressional enactment of this kind may be struck down. Even were that history to be taken as evidencing Congress' concern with the grounds, rather than the fact, of deportation, we do not think that this, standing alone, would suffice to establish a punitive purpose. This would still be a far cry from the situations involved in such cases as Cummings, Wong Wing, and Garland (see ante, p. 617), and from that in Lovett, supra, where the legislation was on its face aimed at particular individuals. The legislative record, however, falls short of any persuasive showing that Congress was in fact concerned alone with the grounds of deportation. To be sure Congress did not apply the termination [363 U.S. 603, 620]   provision to all deportees. However, it is evident that neither did it rest the operation of the statute on the occurrence of the underlying act. The fact of deportation itself remained an essential condition for loss of benefits, and even if a beneficiary were saved from deportation only through discretionary suspension by the Attorney General under 244 of the Immigration and Nationality Act (66 Stat. 214, 8 U.S.C. 1254), 202 (n) would not reach him.

Moreover, the grounds for deportation referred to in the Committee Report embrace the great majority of those deported, as is evident from an examination of the four omitted grounds, summarized in the margin. 13 Inferences drawn from the omission of those grounds cannot establish, to the degree of certainty required, that Congressional concern was wholly with the acts leading to deportation, and not with the fact of deportation. 14 To hold otherwise would be to rest on the "slight implication and vague conjecture" against which Chief Justice Marshall warned. Fletcher v. Peck, supra, at 128.

The same answer must be made to arguments drawn from the failure of Congress to apply 202 (n) to beneficiaries [363 U.S. 603, 621]   voluntarily residing abroad. But cf. 202 (t), ante, note 5. Congress may have failed to consider such persons; or it may have thought their number too slight, or the permanence of their voluntary residence abroad too uncertain, to warrant application of the statute to them, with its attendant administrative problems of supervision and enforcement. Again, we cannot with confidence reject all those alternatives which imaginativeness can bring to mind, save that one which might require the invalidation of the statute.

[ Footnote 1 ] Section 202 (n) provides as follows:

The provisions of 241 (a) of the Immigration and Nationality Act are summarized in notes 10, 13, post, pp. 618, 620.

[ Footnote 2 ] Under paragraph (1) (B) of 202 (n) (see note 1, ante), appellee's wife, because of her residence here, has remained eligible for benefits payable to her as the wife of an insured individual. See 202 (b), 53 Stat. 1364, as amended, 42 U.S.C. 402 (b).

[ Footnote 3 ] Section 205 (g) provides as follows:

[ Footnote 4 ] In addition, eligibility for disability insurance benefits is of course subject to the further condition of the incurring of a disability as defined in the Act. 223, 42 U.S.C. 423. Secondary beneficiaries must meet the tests of family relationship to the wage earner set forth in the Act. 202 (b)-(h), 42 U.S.C. 402 (b)-(h).

[ Footnote 5 ] The Act does not provide for the termination of benefits of nonresident citizens, or of some aliens who leave the country voluntarily - although many nonresident aliens do lose their eligibility by virtue of the provisions of 202 (t), 70 Stat. 835, as amended, 42 U.S.C. 402 (t) - or of aliens deported pursuant to paragraphs 3, 8, 9, or 13 of the 18 paragraphs of 241 (a) of the Immigration and Nationality Act. See note 13, post.

[ Footnote 6 ] Art. I, 9, cl. 3:

Art. III, 2, cl. 3:

Amend. VI:

[ Footnote 7 ] Appellee also adds, but hardly argues, the contention that he has been deprived of his rights under the First Amendment, since the adverse consequences stemmed from "mere past membership" in the Communist Party. This contention, which is no more than a collateral attack on appellee's deportation, is not open to him.

[ Footnote 8 ] See also Pierce v. Carskadon, 16 Wall. 234. A West Virginia statute providing that a nonresident who had suffered a judgment in an action commenced by attachment, but in which he had not been personally served and did not appear, could within one year petition the court for a reopening of the judgment and a trial on the merits, was amended in 1865 so as to condition that right on the taking of an exculpatory oath that the defendant had never supported the Confederacy. On the authority of Cummings and Garland, the amendment was invalidated.

[ Footnote 9 ] As prior decisions make clear, compare Ex parte Garland, supra, with Hawker v. New York, supra, the severity of a sanction is not determinative of its character as "punishment."

[ Footnote 10 ] Paragraphs (1), (2), and (10) of 241 (a) relate to unlawful entry, or entry not complying with certain conditions; paragraphs (6) and (7) apply to "subversive" and related activities; the remainder of the included paragraphs are concerned with convictions of designated crimes, or the commission of acts related to them, such as narcotics addiction or prostitution.

[ Footnote 11 ] For example, under the House version termination of benefits of a deportee would also have terminated benefits paid to secondary beneficiaries based on the earning records of the deportee. The Conference proposal limited this effect to secondary beneficiaries who were nonresident aliens. See note 2, ante.

[ Footnote 12 ] Appellee also relies on the juxtaposition of the proposed 108 and certain other provisions, some of which were enacted and some of which were not. This argument is too conjectural to warrant discussion. In addition, reliance is placed on a letter written to the Senate Finance Committee by appellant's predecessor in office, opposing the enactment of what is now 202 (u) of the Act, 70 Stat. 838, 42 U.S.C. 402 (u), on the ground that the section was "in the nature of a penalty and based on considerations foreign to the objectives" of the program. Social Security Amendments of 1955, Hearings before the Senate Committee on Finance, 84th Cong., 2d Sess., p. 1319. The Secretary went on to say that "present law recognizes only three narrowly limited exceptions [of which 202 (n) is one] to the basic principle that benefits are paid without regard to the attitudes, opinions, behavior, or personal characteristics of the individual . . . ." It should be observed, however, that the Secretary did not speak of 202 (n) as a penalty, as he did of the proposed 202 (u). The latter provision is concededly penal, and applies only pursuant to a judgment of a court in a criminal case.

[ Footnote 13 ] They are: (1) persons institutionalized at public expense within five years after entry because of "mental disease, defect, or deficiency" not shown to have arisen subsequent to admission ( 241 (a) (3)); (2) persons becoming a public charge within five years after entry from causes not shown to have arisen subsequent to admission 241 (a) (8)); (3) persons admitted as nonimmigrants (see 101 (a) (15), 66 Stat. 167, 8 U.S.C. 1101 (a) (15)) who fail to maintain, or comply with the conditions of, such status ( 241 (a) (9)); (4) persons knowingly and for gain inducing or aiding, prior to or within five years after entry, any other alien to enter or attempt to enter unlawfully ( 241 (a) (13)).

[ Footnote 14 ] Were we to engage in speculation, it would not be difficult to conjecture that Congress may have been led to exclude these four grounds of deportation out of compassionate or de minimis considerations.

Nestor came to this country from Bulgaria in 1913 and lived here continuously for 43 years, until July 1956. He was then deported from this country for having been a Communist from 1933 to 1939. At that time membership in the Communist Party as such was not illegal and was not even a statutory ground for deportation. From December 1936 to January 1955 Nestor and his employers made regular payments to the Government under the Federal Insurance Contributions Act, 26 U.S.C. 3101-3125. These funds went to a special federal old-age and survivors insurance trust fund under 49 Stat. 622, 53 Stat. 1362, as amended, 42 U.S.C. 401, in return for which Nestor, like millions of others, expected to receive payments when he reached the statutory age. In 1954, 15 years after Nestor had last been a Communist, and 18 years after he began to make payments into the old-age security fund, Congress passed a law providing, among other things, that any person who had been deported from [363 U.S. 603, 622]   this country because of past Communist membership under 66 Stat. 205, 8 U.S.C. 1251 (a) (6) (C) should be wholly cut off from any benefits of the fund to which he had contributed under the law. 68 Stat. 1083, 42 U.S.C. 402 (n). After the Government deported Nestor in 1956 it notified his wife, who had remained in this country, that he was cut off and no further payments would be made to him. This action, it seems to me, takes Nestor's insurance without just compensation and in violation of the Due Process Clause of the Fifth Amendment. Moreover, it imposes an ex post facto law and bill of attainder by stamping him, without a court trial, as unworthy to receive that for which he has paid and which the Government promised to pay him. The fact that the Court is sustaining this action indicates the extent to which people are willing to go these days to overlook violations of the Constitution perpetrated against anyone who has ever even innocently belonged to the Communist Party.

In Lynch v. United States, 292 U.S. 571 , this Court unanimously held that Congress was without power to repudiate and abrogate in whole or in part its promises to pay amounts claimed by soldiers under the War Risk Insurance Act of 1917, 400-405, 40 Stat. 409. This Court held that such a repudiation was inconsistent with the provision of the Fifth Amendment that "No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." The Court today puts the Lynch case aside on the ground that "It is hardly profitable to engage in conceptualizations regarding `earned rights' and `gratuities.'" From this sound premise the Court goes on to say that while "The `right' to Social Security benefits is in one sense `earned,'" [363 U.S. 603, 623]   yet the Government's insurance scheme now before us rests not on the idea of the contributors to the fund earning something, but simply provides that they may "justly call" upon the Government "in their later years, for protection from `the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.'" These are nice words but they cannot conceal the fact that they simply tell the contributors to this insurance fund that despite their own and their employers' payments the Government, in paying the beneficiaries out of the fund, is merely giving them something for nothing and can stop doing so when it pleases. This, in my judgment, reveals a complete misunderstanding of the purpose Congress and the country had in passing that law. It was then generally agreed, as it is today, that it is not desirable that aged people think of the Government as giving them something for nothing. An excellent statement of this view, quoted by MR. JUSTICE DOUGLAS in another connection, was made by Senator George, the Chairman of the Finance Committee when the Social Security Act was passed, and one very familiar with the philosophy that brought it about:

The people covered by this Act are now able to rely with complete assurance on the fact that they will be compelled to contribute regularly to this fund whenever each contribution falls due. I believe they are entitled to rely with the same assurance on getting the benefits they have paid for and have been promised, when their disability or age makes their insurance payable under the terms of the law. The Court did not permit the Government to break its plighted faith with the soldiers in the Lynch case; it said the Constitution forbade such governmental conduct. I would say precisely the same thing here.

The Court consoles those whose insurance is taken away today, and others who may suffer the same fate in the future, by saying that a decision requiring the Social Security system to keep faith "would deprive it of the flexibility and boldness in adjustment to ever-changing conditions which it demands." People who pay premiums for insurance usually think they are paying for insurance, not for "flexibility and boldness." I cannot believe that any private insurance company in America would be permitted to repudiate its matured contracts with its policyholders who have regularly paid all their premiums in reliance upon the good faith of the company. It is true, as the Court says, that the original Act contained a clause, still in force, that expressly reserves to Congress "[t]he right to alter, amend, or repeal any provision" of the Act. 1104, 49 Stat. 648, 42 U.S.C. 1304. Congress, of course, properly retained that power. It could repeal the Act so as to cease to operate its old-age insurance activities for the future. This means that it could stop covering new people, and even stop increasing its obligations to its old contributors. But that is quite different from disappointing the just expectations of the contributors to the fund which the Government has compelled [363 U.S. 603, 625]   them and their employers to pay its Treasury. There is nothing "conceptualistic" about saying, as this Court did in Lynch, that such a taking as this the Constitution forbids.

In part II of its opinion, the Court throws out a line of hope by its suggestion that if Congress in the future cuts off some other group from the benefits they have bought from the Government, this Court might possibly hold that the future hypothetical act violates the Due Process Clause. In doing so it reads due process as affording only minimal protection, and under this reading it will protect all future groups from destruction of their rights only if Congress "manifests a patently arbitrary classification, utterly lacking in rational justification." The Due Process Clause so defined provides little protection indeed compared with the specific safeguards of the Constitution such as its prohibitions against taking private property for a public use without just compensation, passing ex post facto laws, and imposing bills of attainder. I cannot agree, however, that the Due Process Clause is properly interpreted when it is used to subordinate and dilute the specific safeguards of the Bill of Rights, and when "due process" itself becomes so wholly dependent upon this Court's idea of what is "arbitrary" and "rational." See Levine v. United States, 362 U.S. 610, 620 (dissenting opinion); Adamson v. California, 332 U.S. 46, 89 -92 (dissenting opinion); Rochin v. California, 342 U.S. 165, 174 (concurring opinion). One reason for my belief in this respect is that I agree with what is said in the Court's quotation from Helvering v. Davis, 301 U.S. 619, 644 :

And yet the Court's assumption of its power to hold Acts unconstitutional because the Court thinks they are arbitrary and irrational can be neither more nor less than a judicial foray into the field of governmental policy. By the use of this due process formula the Court does not, as its proponents frequently proclaim, abstain from interfering with the congressional policy. It actively enters that field with no standards except its own conclusion as to what is "arbitrary" and what is "rational." And this elastic formula gives the Court a further power, that of holding legislative Acts constitutional on the ground that they are neither arbitrary nor irrational, even though the Acts violate specific Bill of Rights safeguards. See my dissent in Adamson v. California, supra. Whether this Act had "rational justification" was, in my judgment, for Congress; whether it violates the Federal Constitution is for us to determine, unless we are by circumlocution to abdicate the power that this Court has been held to have ever since Marbury v. Madison, 1 Cranch 137.

The Court in part III of its opinion holds that the 1954 Act is not an ex post facto law or bill of attainder even though it creates a class of deportees who cannot collect their insurance benefits because they were once Communists at a time when simply being a Communist was not illegal. The Court also puts great emphasis on its belief that the Act here is not punishment. Although not believing that the particular label "punishment" is of decisive importance, I think the Act does impose punishment even in a classic sense. The basic reason for [363 U.S. 603, 627]   Nestor's loss of his insurance payments is that he was once a Communist. This man, now 69 years old, has been driven out of the country where he has lived for 43 years to a land where he is practically a stranger, under an Act authorizing his deportation many years after his Communist membership. Cf. Galvan v. Press, 347 U.S. 522, 532 , 533 (dissenting opinions). Now a similar ex post facto law deprives him of his insurance, which, while petty and insignificant in amount to this great Government, may well be this exile's daily bread, for the same reason and in accord with the general fashion of the day - that is, to punish in every way possible anyone who ever made the mistake of being a Communist in this country or who is supposed ever to have been associated with anyone who made that mistake. See, e. g., Barenblatt v. United States, 360 U.S. 109 , and Uphaus v. Wyman, 360 U.S. 72 . In United States v. Lovett, 328 U.S. 303, 315 -316, we said:

Faithful observance of our holdings in that case, in Ex parte Garland, 4 Wall. 333, and in Cummings v. Missouri, 4 Wall. 277, would, in my judgment, require us to hold that the 1954 Act is a bill of attainder. It is a congressional enactment aimed at an easily ascertainable group; it is certainly punishment in any normal sense of the word to take away from any person the benefits of an insurance system into which he and his employer have paid their moneys for almost two decades; and it does all this without a trial according to due process of law. It is true that the Lovett, Cummings and Garland Court opinions were [363 U.S. 603, 628]   not unanimous, but they nonetheless represent positive precedents on highly important questions of individual liberty which should not be explained away with cobwebbery refinements. If the Court is going to overrule these cases in whole or in part, and adopt the views of previous dissenters, I believe it should be done clearly and forthrightly.

A basic constitutional infirmity of this Act, in my judgment, is that it is a part of a pattern of laws all of which violate the First Amendment out of fear that this country is in grave danger if it lets a handful of Communist fanatics or some other extremist group make their arguments and discuss their ideas. This fear, I think, is baseless. It reflects a lack of faith in the sturdy patriotism of our people and does not give to the world a true picture of our abiding strength. It is an unworthy fear in a country that has a Bill of Rights containing provisions for fair trials, freedom of speech, press and religion, and other specific safeguards designed to keep men free. I repeat once more that I think this Nation's greatest security lies, not in trusting to a momentary majority of this Court's view at any particular time of what is "patently arbitrary," but in wholehearted devotion to and observance of our constitutional freedoms. See Wieman v. Updegraff, 344 U.S. 183, 192 (concurring opinion).

Appellee came to this country from Bulgaria in 1913 and was employed, so as to be covered by the Social Security Act, from December 1936 to January 1955 - a period of 19 years. He became eligible for retirement [363 U.S. 603, 629]   and for Social Security benefits in November 1955 and was awarded $55.60 per month. In July 1956 he was deported for having been a member of the Communist Party from 1933 to 1939. Pursuant to a law, enacted September 1, 1954, he was thereupon denied payment of further Social Security benefits.

In the old days punishment was meted out to a creditor or rival or enemy by sending him to the gallows. But as recently stated by Irving Brant, 1  

Bills of attainder, when they imposed punishment less than death, were bills of pains and penalties and equally beyond the constitutional power of Congress. Cummings v. Missouri, supra, at 323.

Punishment in the sense of a bill of attainder includes the "deprivation or suspension of political or civil rights." Cummings v. Missouri, supra, at 322. In that case it was barring a priest from practicing his profession. In Ex parte Garland, 4 Wall. 333, it was excluding a man from practicing law in the federal courts. In United States v. Lovett, 328 U.S. 303 , it was cutting off employees' compensation and barring them permanently from government service. Cutting off a person's livelihood by denying him accrued social benefits - part of his property interests - is no less a punishment. Here, as in the other cases cited, the penalty exacted has one of the classic purposes of punishment 2 - "to reprimand the wrongdoer, to deter others." Trop v. Dulles, 356 U.S. 86, 96 . [363 U.S. 603, 631]  

Social Security payments are not gratuities. They are products of a contributory system, the funds being raised by payment from employees and employers alike, or in case of self-employed persons, by the individual alone. See Social Security Board v. Nierotko, 327 U.S. 358, 364 . The funds are placed in the Federal Old-Age and Survivors Insurance Trust Fund, 42 U.S.C. 401 (a); and only those who contribute to the fund are entitled to its benefits, the amount of benefits being related to the amount of contributions made. See Stark, Social Security: Its Importance to Lawyers, 43 A. B. A. J. 319, 321 (1957). As the late Senator George, long Chairman of the Senate Finance Committee and one of the authors of the Social Security system, said:

Social Security benefits have rightly come to be regarded as basic financial protection against the hazards of old age and disability. As stated in a recent House Report:

Congress could provide that only people resident here could get Social Security benefits. Yet both the House and the Senate rejected any residence requirements. See H. R. Rep. No. 1698, 83d Cong., 2d Sess. 24-25; S. Rep. No. 1987, 83d Cong., 2d Sess. 23. Congress concededly might amend the program to meet new conditions. But may it take away Social Security benefits from one person or from a group of persons for vindictive reasons? Could Congress on deporting an alien for having been a Communist confiscate his home, appropriate his savings accounts, and thus send him out of the country penniless? I think not. Any such Act would be a bill of attainder. The difference, as I see it, between that case and this is one merely of degree. Social Security benefits, made up in part of this alien's own earnings, are taken from him because he once was a Communist.

The view that 202 (n), with which we now deal, imposes a penalty was taken by Secretary Folsom, appellant's [363 U.S. 603, 633]   predecessor, when opposing enlargement of the category of people to be denied benefits of Social Security, e. g., those convicted of treason and sedition. He said:

The Committee Reports, though meagre, support Secretary Folsom in that characterization of 202 (n). The House Report tersely stated that termination of the benefits would apply to those persons who were deported "because of illegal entry, conviction of a crime, or subversive activity." H. R. Rep. No. 1698, 83d Cong., 2d Sess. 25. The aim and purpose are clear - to take away from a person by legislative fiat property which he has accumulated because he has acted in a certain way or embraced a certain ideology. That is a modern version [363 U.S. 603, 634]   of the bill of attainder - as plain, as direct, as effective as those which religious passions once loosed in England and which later were employed against the Tories here. 4 I would affirm this judgment.

[ Footnote 1 ] Address entitled Bills of Attainder in 1787 and Today. Columbia Law Review dinner 1954, published in 1959 by the Emergency Civil Liberties Committee, under the title Congressional Investigations and Bills of Attainder.

[ Footnote 2 ] The broad sweep of the idea of punishment behind the concept of the bill of attainder was stated as follows by Irving Brant, op. cit., supra, note 1, 9-10:

[ Footnote 3 ] The three exceptions referred to were (1) 202 (n); (2) Act of September 1, 1954, 68 Stat. 1142, 5 U.S.C. 2281-2288; (3) Regulation of the Social Security Administration, 20 CFR 403.409 - denying dependent's benefits to a person found guilty of felonious homicide of the insured worker.

[ Footnote 4 ] Brant, op. cit., supra, note 1, states at p. 9:

MR. JUSTICE BRENNAN, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.

When Nestor quit the Communist Party in 1939 his past membership was not a ground for his deportation. Kessler v. Strecker, 307 U.S. 22 . It was not until a year later that past membership was made a specific ground for deportation. 1 This past membership has cost Nestor [363 U.S. 603, 635]   dear. It brought him expulsion from the country after 43 years' residence - most of his life. Now more is exacted from him, for after he had begun to receive benefits in 1955 - having worked in covered employment the required time and reached age 65 - and might anticipate receiving them the rest of his life, the benefits were stopped pursuant to 202 (n) of the Amended Social Security Act. 2 His predicament is very real - an aging man deprived of the means with which to live after being separated from his family and exiled to live among strangers in a land he quit 47 years ago. The common sense of it is that he has been punished severely for his past conduct.

Even the 1950 statute deporting aliens for past membership raised serious questions in this Court whether the prohibition against ex post facto laws was violated. In Galvan v. Press, 347 U.S. 522, 531 , we said "since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation." However, precedents which treat deportation not as punishment, but as a permissible exercise of congressional power to enact the conditions under which aliens may [363 U.S. 603, 636]   come to and remain in this country, governed the decision in favor of the constitutionality of the statute.

The Court's test of the constitutionality of 202 (n) is whether the legislative concern underlying the statute was to regulate "the activity or status from which the individual is barred" or whether the statute "is evidently aimed at the person or class of persons disqualified." It rejects the inference that the statute is "aimed at the person or class of persons disqualified" by relying upon the presumption of constitutionality. This presumption might be a basis for sustaining the statute if in fact there were two opposing inferences which could reasonably be drawn from the legislation, one that it imposes punishment and the other that it is purposed to further the administration of the Social Security program. The Court, however, does not limit the presumption to that use. Rather the presumption becomes a complete substitute for any supportable finding of a rational connection of 202 (n) with the Social Security program. For me it is not enough to state the test and hold that the presumption alone satisfies it. I find it necessary to examine the Act and its consequences to ascertain whether there [363 U.S. 603, 637]   is ground for the inference of a congressional concern with the administration of the Social Security program. Only after this inquiry would I consider the application of the presumption.

The Court seems to acknowledge that the statute bears harshly upon the individual disqualified, but states that this is permissible when a statute is enacted as a regulation of the activity. But surely the harshness of the consequences is itself a relevant consideration to the inquiry into the congressional purpose. 3 Cf. Trop v. Dulles, 356 U.S. 86, 110 (concurring opinion).

It seems to me that the statute itself shows that the sole legislative concern was with "the person or class of persons disqualified." Congress did not disqualify for benefits all beneficiaries residing abroad or even all dependents residing abroad who are aliens. If that had been the case I might agree that Congress' concern would have been with "the activity or status" and not with the "person or class of persons disqualified." The scales would then be tipped toward the conclusion that Congress desired to limit benefit payments to beneficiaries residing in the United States so that the American economy would be aided by expenditure of benefits here. Indeed a proposal along those lines was submitted to Congress in [363 U.S. 603, 638]   1954, at the same time 202 (n) was proposed, 4 and it was rejected. 5  

Perhaps, the Court's conclusion that regulation of "the activity or status" was the congressional concern would be a fair appraisal of the statute if Congress had terminated the benefits of all alien beneficiaries who are deported. But that is not what Congress did. Section 202 (n) applies only to aliens deported on one or more of 14 of the 18 grounds for which aliens may be deported. 6  

This is plainly demonstrated by the remaining four grounds of deportation, those which do not result in the cancellation of benefits. 7 Two of those four grounds cover persons who become public charges within five years after entry for reasons which predated the entry. A third ground covers the alien who fails to maintain his nonimmigrant status. The fourth ground reaches the alien who, prior to or within five years after entry, aids other aliens to enter the country illegally.

Those who are deported for becoming public charges clearly have not, by modern standards, engaged in conduct worthy of censure. The Government's suggestion [363 U.S. 603, 639]   that the reason for their exclusion from 202 (n) was an unarticulated feeling of Congress that it would be unfair to the "other country to deport such destitute persons without letting them retain their modicum of social security benefits" appears at best fanciful, especially since, by hypothesis, they are deportable because the conditions which led to their becoming public charges existed prior to entry.

This appraisal of the distinctions drawn by Congress between various kinds of conduct impels the conclusion, beyond peradventure that the distinctions can be [363 U.S. 603, 640]   understood only if the purpose of Congress was to strike at "the person or class of persons disqualified." The Court inveighs against invalidating a statute on "implication and vague conjecture." Rather I think the Court has strained to sustain the statute on "implication and vague conjecture," in holding that the congressional concern was "the activity or status from which the individual is barred." Today's decision sanctions the use of the spending power not to further the legitimate objectives of the Social Security program but to inflict hurt upon those who by their conduct have incurred the displeasure of Congress. The Framers ordained that even the worst of men should not be punished for their past acts or for any conduct without adherence to the procedural safeguards written into the Constitution. Today's decision is to me a regretful retreat from Lovett, Cummings and Garland.

Section 202 (n) imposes punishment in violation of the prohibition against ex post facto laws and without a judicial trial. 8 I therefore dissent.

[ Footnote 1 ] The Alien Registration Act, 1940, 54 Stat. 673, made membership in an organization which advocates the overthrow of the Government of the United States by force or violence a ground for deportation even though the membership was terminated prior to [363 U.S. 603, 635]   the passage of that statute. See Harisiades v. Shaughnessy, 342 U.S. 580 . Until the passage of the Internal Security Act of 1950, 64 Stat. 1006, 1008, it was necessary for the Government to prove in each case in which it sought to deport an alien because of membership in the Communist Party that that organization in fact advocated the violent overthrow of the Government. The 1950 Act expressly made deportable aliens who at the time of entry, or at any time thereafter were "members of or affiliated with . . . the Communist Party of the United States." See Galvan v. Press, 347 U.S. 522, 529 .

[ Footnote 2 ] A comparable annuity was worth, at the time appellee's benefits were canceled, approximately $6,000. To date he has lost nearly $2,500 in benefits.

[ Footnote 3 ] The Court, recognizing that Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 333, strongly favor the conclusion that 202 (n) was enacted with punitive intent, rejects the force of those precedents as drawing "heavily on the Court's first-hand acquaintance with the events and the mood of the then recent Civil War, and `the fierce passions which that struggle aroused.'" This seems to me to say that the provision of 202 (n) which cuts off benefits from aliens deported for past Communist Party membership was not enacted in a similar atmosphere. Our judicial detachment from the realities of the national scene should not carry us so far. Our memory of the emotional climate stirred by the question of communism in the early 1950's cannot be so short.

[ Footnote 4 ] See H. R. Rep. No. 1698, 83d Cong., 2d Sess. 24-25.

[ Footnote 5 ] See S. Rep. No. 1987, 83d Cong., 2d Sess. 23; H. R. Conf. Rep. No. 2679, 83d Cong., 2d Sess. 4.

[ Footnote 6 ] See Court's opinion, ante, note 1.

[ Footnote 7 ] See the Court's opinion, ante, note 13.

[ Footnote 8 ] It is unnecessary for me to reach the question whether the statute also constitutes a bill of attainder. [363 U.S. 603, 641]