Joint Anti-Fascist Refugee Comm. v. McGrath
341 U.S. 123 (1951)
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Rule of Law:
An executive order authorizing the Attorney General to designate organizations for a loyalty list requires an 'appropriate determination' and does not grant the authority to make a designation that is patently arbitrary or contrary to the uncontroverted facts presented in a complaint.
Facts:
- President Truman issued Executive Order 9835, which established a loyalty program for federal employees.
- The order directed the Attorney General to furnish the Loyalty Review Board with a list of organizations designated as 'totalitarian, fascist, communist or subversive.'
- The Joint Anti-Fascist Refugee Committee was a charitable organization engaged in relief work for anti-Fascist refugees.
- The National Council of American-Soviet Friendship was a nonprofit corporation whose stated purpose was to strengthen friendly relations between the United States and the Soviet Union through cultural and educational activities.
- The International Workers Order was a fraternal benefit society that provided life insurance and other benefits to its members.
- Without prior notice or a hearing, the Attorney General included all three organizations on the list furnished to the Loyalty Review Board and subsequently labeled them 'Communist.'
- The list was disseminated to all federal departments and agencies for use in evaluating the loyalty of current and prospective employees.
- As a result of the designation, the organizations suffered injuries including loss of contributors, resignations of members, revocation of tax-exempt status, and damage to their public reputations.
Procedural Posture:
- The Joint Anti-Fascist Refugee Committee, the National Council of American-Soviet Friendship, and the International Workers Order each filed separate lawsuits against the Attorney General in the U.S. District Court for the District of Columbia, a federal trial court.
- The complaints sought declaratory judgments and injunctions to remove the organizations' names from the Attorney General's list of subversive organizations.
- The government, as respondent, filed motions to dismiss each complaint for failure to state a claim upon which relief could be granted.
- The District Court granted the government's motions and dismissed all three complaints.
- The organizations, as appellants, appealed the dismissals to the U.S. Court of Appeals for the District of Columbia Circuit, an intermediate federal appellate court.
- The Court of Appeals affirmed the judgments of the District Court in all three cases.
- The organizations, as petitioners, successfully petitioned the U.S. Supreme Court for a writ of certiorari to review the appellate court's decisions.
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Issue:
Does Executive Order 9835 authorize the Attorney General to designate an organization as 'Communist' for inclusion on a list used in federal employee loyalty determinations when, on a motion to dismiss, the facts alleged in the organization's complaint are taken as true and are inconsistent with such a designation?
Opinions:
Plurality - Justice Burton
No. The Executive Order does not authorize the Attorney General to designate these organizations as Communist based solely on the facts alleged in their complaints, which must be taken as true on a motion to dismiss. The order requires an 'appropriate... determination,' which implies a process of reasoning and cannot be an arbitrary fiat contrary to known facts. By moving to dismiss, the Attorney General effectively admitted the organizations' factual allegations of their legitimate and non-subversive activities. Therefore, designating them as 'Communist' based on these admitted facts is a patently arbitrary act that falls outside the scope of authority conferred by the Executive Order. This decision avoids the constitutional questions and rests on the finding that the Attorney General's action was unauthorized by the order itself.
Concurring - Justice Frankfurter
No. While disagreeing that the case can be decided on the narrow grounds of the plurality, the action must be reversed because the Attorney General's procedure violates the Due Process Clause of the Fifth Amendment. The organizations have standing to sue due to the immediate and substantial harm caused by the designation. The heart of due process is fairness, which requires notice and an opportunity to be heard before the government can condemn an organization and inflict grievous loss upon it. To maim or decapitate an organization on the mere say-so of the Attorney General, without any procedural safeguards, offends the fundamental principles of justice ingrained in our constitutional system.
Concurring - Justice Black
No. The executive branch has no constitutional authority, with or without a hearing, to officially prepare and publish such a list. The system of official blacklisting functions as an unconstitutional bill of attainder, which is a legislative act inflicting punishment without a judicial trial, a power forbidden to all branches of government. Furthermore, this system punishes organizations and their members for their political beliefs and expressions, which is a form of censorship that violates the First Amendment.
Concurring - Justice Douglas
No. The procedure used to condemn these organizations violates fundamental principles of due process. The term 'subversive' is unconstitutionally vague, allowing for arbitrary application based on the political philosophy of the prosecutor. The process creates 'guilt by association,' an odious technique that is alien to our system of personal guilt. Condemning an organization without notice and hearing is abhorrent to fundamental justice, as is using that condemnation against individual employees who are not allowed to challenge the underlying designation.
Concurring - Justice Jackson
No. The designation of an organization as subversive without a hearing at any stage is a denial of due process of law. While the designation itself may not deprive the organization of a legal right, it has a direct and conclusive legal effect on its members who are government employees, as they may be discharged based on this finding without being able to challenge its correctness. Since the government has lumped the members' interests with the organization's, the organization has standing to vindicate the due process rights of its members.
Dissenting - Justice Reed
Yes. The designation of these organizations by the Attorney General is a permissible exercise of the President's executive power to manage the federal workforce and protect national security. The designation does not deprive the organizations of any legally protected property or liberty; it does not prohibit their activities or subject them to punishment. It is merely an internal administrative tool to aid in loyalty investigations of government employees, and as such, it does not require the procedural safeguards of notice and a hearing. The courts should not interfere with the ordinary functions of the executive department in matters of employee loyalty.
Analysis:
This landmark case demonstrated the judiciary's willingness to review executive actions taken in the name of national security during the Cold War. Although the Court's judgment was fractured, with no majority opinion on the core constitutional issues, it established that organizations have standing to sue over such designations and that executive power is limited by the terms of its authorization. The plurality's narrow holding, avoiding the due process question, left the constitutional status of loyalty programs ambiguous. However, the powerful concurring opinions heavily influenced future legal and public debate, articulating the fundamental due process and First Amendment problems with loyalty-security programs that rely on secret evidence and guilt by association.
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