Foreign Relations of the United States, 1952–1954, General: Economic and Political Matters, Volume I, Part 2
Truman Library, Truman papers, PSF–General File
Memorandum by the Director of the Bureau of the Budget (Lawton) to the President
- Comments on the Secretary of State’s Memorandum of April 141
Mr. Lloyd2 has requested the Bureau to prepare for your consideration its comments on the memorandum of April 14, 1952, from Secretary Acheson urging the early enactment of the Walter omnibus immigration and naturalization bill. As the following comments indicate, we do not believe that the State Department fully understands the details of that bill:
(1) Insofar as the Walter bill involves the question of the relations of the United States with the peoples of Asia in general and the people of Japan in particular, which is the principal question discussed in Secretary Acheson’s memorandum, the bill would take away at least as much as it appears to give.
It is true that the bill would remove existing racial bars to the naturalization of the Japanese and of certain other Asians and that it would for the first time extend quotas to several Asian countries, including Japan. We agree with Secretary Acheson that these steps are long overdue, but we would point out that an annual quota of 185 for Japan is hardly more than a token quota. Moreover, the bill would actually place new racially discriminatory restrictions on immigration from Asia by requiring that persons of Asian ancestry be charged to the quota of the country of their ancestry and by attempting to place a permanent limit on annual immigration [Page 1591] from most of Asia. These restrictions, which would apply only in Asia and nowhere else in the world, would call into question the meaning and sincerity of the gestures made by the bill with respect to naturalization and the assignment of new quotas.
The net effect of the bill might be to improve the position of Japan, but the position of certain other Asian countries, such as India and the Philippines, would be worsened. If, as Secretary Acheson advises, “our failure to remove racial barriers provides the Kremlin with unlimited political and propaganda capital for use against us in Japan and the entire Far East,” then it would certainly appear desirable to avoid enacting new discriminatory restrictions. The Kremlin is always quick to seize upon any half measure as proof of democratic duplicity.
(2) However significant the question of our relations with Japan and the rest of Asia may be, the Walter bill raises questions of public policy that go far beyond our relations with any one country or area.
The bill raises fundamental questions about the kind of treatment that should be accorded aliens who seek to enter this country and about the position that aliens should occupy in our society. In these matters, we believe that the Walter bill flagrantly violates the principle of fair treatment for all that is a basic principle of democracy. This principle cannot be violated without weakening the United States both at home and in the eyes of the peoples abroad whose friendship and support we are seeking. We cannot believe that the number and seriousness of these questions have been pointed out to Secretary Acheson.
Not the least important of other questions raised by the bill is the proper relationship of the Executive Branch and the Congress in the administration of the immigration and naturalization laws. The Walter bill would go far toward injecting the Congress directly into the administration of these laws. It would also freeze part of the State Department’s organization in a way that we feel sure Secretary Acheson would not approve.
(3) After a most careful comparison of the provisions of the Walter bill with those of the McCarran and Humphrey–Lehman bills, we cannot agree with Secretary Acheson that the Walter bill is “middle of the road”. The McCarran and Walter bills are companion bills. Although they are not identical, they are alike in most major respects; both are vicious. As for the differences between them, the Walter bill contains some objectionable provisions that are not in the McCarran bill.
There is attached for your consideration a detailed staff memorandum discussing certain of the most important provisions of the McCarran and Walter bills. We recommend that a copy of this [Page 1592] analysis be sent to Secretary Acheson or that the points in it be discussed with him as a basis for his reconsideration of the position taken in the April 14 memorandum.
Major Provisions of the McCarran and Walter Omnibus Immigration and Naturalization Bills
The McCarran and Walter omnibus immigration and naturalization bills would extensively revise, as well as codify, existing immigration and naturalization laws. They are big bills. Each of them contains over 400 sections. The interrelationships of these sections are highly complex. It is doubtful that anyone fully understands them.
These bills have been in preparation for some three years. Each of them has appeared in several versions. An earlier version of the McCarran bill would unquestionably have had the effect of halting almost all immigration to this country. Present versions of both bills are less drastic than earlier ones.
The two bills are not identical. However, they have many provisions in common, and both adopt an approach to immigration and naturalization problems that can fairly be described as restrictionist and isolationist. Similar claims have been made for each of these bills, and similar arguments have opposed both.
It is claimed that these bills would remove discrimination based on sex from our immigration and naturalization laws. This the bills would do.
It is claimed that they would remove racial discrimination from our immigration laws. This claim is simply not true.
It is claimed that they would bring about structural changes in the enforcement agencies for greater efficiency. Actually, organizational provisions of the bills violate sound principles of administration and, in the case of the Walter bill, would apparently attempt to inject the Congress directly into the administration of the immigration and naturalization laws.
It is claimed that the bills would provide more thorough “screening” of security risks and that they would “strengthen” exclusion and deportation and naturalization and denaturalization procedures. This “strengthening”, if, indeed, that be the proper term for it, would be achieved only at the expense of democratic principles.
These bills raise fundamental questions with respect to the treatment that should be accorded aliens who seek to enter this country [Page 1593] and with respect to the position aliens should occupy in our society. In this connection, much has been made by the proponents of these bills of the fact that as a sovereign nation, the United States can admit as many or as few aliens as it chooses on whatever terms and conditions it deems desirable. The conclusion drawn from this is apparently that aliens have no rights. We do not believe that that conclusion is sound or that it provides an adequate basis upon which to construct immigration and naturalization policy.
We do not believe that “aliens” differ in any fundamental respect from other human beings. We believe that the worth and dignity of all individuals, citizens or not, demand respect. And we believe that it is particularly incumbent upon the United States, as a democracy, to guarantee that that respect shall be paid. Our willingness to offer such a guarantee is the measure of the strength of our professed beliefs.
This does not mean that the United States need admit all aliens who seek to enter. There are those who seek to enter for evil purposes. There are others whose past conduct makes them clearly undesirable. Certain precautions are necessary in all cases. But the historic contribution of the immigrant to the development of this country should be reassuring as to the general results of future immigration, and there is strong reason to give the alien the benefit of the doubt in many cases where the security of the country is not at stake.
During the course of House debate on the bill that bears his name, Mr. Walter assured his colleagues that “no injustice can possibly be worked under the provisions of this act.” We must disagree with Mr. Walter. We know of few other proposals in recent years that have offered greater promise of injustice than do the McCarran and Walter bills.
There follows a discussion of certain major provisions of the McCarran and Walter bills.
The Quota System
The McCarran and Walter bills would retain the principles of the national origins quota system as the framework for immigration to this country. For the purpose of calculating quotas, a new and simplified formula would be applied to old data: the annual quota of any quota area would be one-sixth of one percent of the number of inhabitants in the United States in 1920 attributable by national origin to that area. For the most part, quota areas are independent states, which are assigned their own quotas. Trust territories would also be assigned separate quotas as quota areas, but colonies would share, to a limited extent, the quota of the mother [Page 1594] country. Immigrants from countries in the Western Hemisphere would, as at present, be granted nonquota immigrant status.
The total of all quotas would be 154,657, which is approximately the same as at present. Quotas of particular areas would be roughly the same as present quotas. Minimum quotas of 100 would be assured to all quota areas except those in Asia (see following section). In the case of China, the bills would retain present special arrangements which provide two quotas, a minimum quota of 100 to which non-Chinese persons born in China are charged and a quota of 105 to which Chinese persons are charged. It should be noted that no similar arrangement now exists or would be provided for India, nor would the bills in any other way improve the situation wherein British persons born in India of British parents must be charged to the Indian quota despite the fact that they are citizens of Great Britain and may have lived most of their lives in England.
The principal effect of retaining the national origins quota system would be to continue to make most immigration visas available to immigrants from northwestern Europe. Great Britain with a quota of over 65,000, Ireland (17,756), and Germany (25,814), would account for two-thirds of the total of all quotas. Quotas of these countries should be compared to those of such countries as Italy (5,645), Greece (308), and Turkey (225). The system has the ridiculous result of equating India with such countries as Nepal, Yeman, Monaco, Andorra, and Luxemburg. In fact, under the special restrictions that would be imposed on Asian countries, which are discussed in the following section, India’s quota might in time be smaller than those of Yeman, Monaco, Andorra, and Luxemburg. Since the same restrictions would apply to Nepal, India would always be able to keep pace with that country.
It is important to note not only the disparity among quotas but also the fact that in practice some of the countries which have had the largest quotas have habitually failed to make full use of them. Under existing laws, unused portions of quotas are completely lost. There is no way to make them available for use by those countries whose quotas are oversubscribed for years to come.
What is probably needed is an entirely new immigration system. The McCarran and Walter bills would not, of course, provide such a system, nor would they do anything to ameliorate the inequities arising from the present system. As has been indicated, they would not even bring the system up to date.
Several disadvantages arise from the facts that the bills would make use of 1920 census data and that they would retain the determinations [Page 1595] made under the Immigration Act of 19243 as to the national origins of this country’s inhabitants. As a result, the bills fail to take advantage of more accurate statistical methods now employed, and they fail to take into account changes in the composition of the population since 1920. They are apparently not disturbed by the fact that the 1924 Act excluded “the descendants of slave immigrants” from the definition of the inhabitants of this country whose national origin was to be determined in order to establish quotas.
The House Judiciary Committee report4 maintains that analyses of both the 1940 and 1950 censuses have not progressed far enough to make possible the recomputation of the national origins of persons in this country. Neither of the bills makes provision for the use of 1940 or 1950 census data even when the necessary analyses have been completed.
Restrictions on Asian Immigration
Perhaps the chief claim made in support of the McCarran and Walter bills is that they would remove racial barriers to the immigration and naturalization of the peoples of Asia and that they would for the first time extend quotas to certain Asian countries such as Japan. This claim is accurate only in part.
The bills would accomplish the limited objectives of removing the present bar to the naturalization of certain Asians and of extending quotas to several Asian countries that have not previously had quotas. In doing these things, the bills would expunge an injustice of long standing and an historic source of antagonism between our country and the peoples of Asia, particularly the Japanese.
However, instead of removing racial bars to immigration, the bills would actually impose new racially discriminatory restrictions on the immigration of Asians. These restrictions would call into question the meaning and sincerity of the gestures made with respect to naturalization and the assignment of new quotas. These restrictions would announce to the peoples of Asia: “The United States still considers you undesirable. We’re going to have one set of rules for everyone else in the world and a special set of rules for you. We want to make sure that too many of you won’t come over here”.
Specifically, section 202 of both bills would carve out an area called the “Asia-Pacific Triangle” which would extend from Afghanistan across continental Asia to the island countries off Asia’s coast, such as Japan, the Philippines, and Indonesia. Special restrictions [Page 1596] would apply with respect to this area which would not apply in the case of any other area in the world.
In the first place, the general rule that an alien is chargeable to the quota of the country of his birth would not apply to persons attributable by as much as one-half of their ancestry to a people or peoples indigenous to the Asia-Pacific Triangle. Instead, the bills would require that such persons, regardless of place of birth, be charged to the quota of the country of their ancestry. Under this restriction, a boy born in England of an English father and an Indian mother would have to be charged to the minimum quota of India rather than to the quota for Great Britain, which is never filled. A girl born in South America of a South American father and a Chinese mother would not, except under special circumstances, be entitled to the nonquota immigrant status which is enjoyed by persons born in South America; she would have to be charged to the oversubscribed Chinese quota.
In the second place, the general rule that each quota area is entitled at least to a minimum quota of 100 would not apply to quota areas in the Asia-Pacific Triangle. If the McCarran or Walter bill were enacted at the present time, there would be nineteen countries in the Asia-Pacific Triangle entitled only to minimum quotas. The bills provide that if the number of such countries exceeds twenty in the future, the quotas of all such countries would have to be reduced below the usual minimum of 100 in order to maintain a maximum annual limit of 2,000. The provision is clearly designed to establish a permanent limit on immigration from most of Asia. In operation, as has been pointed out, it would result in such situations as reducing the quota of all of India below that of Luxemburg. Regardless of whether this provision ever goes into effect, it should certainly be objectionable from the diplomatic point of view.
Among the countries affected by both of these special restrictions are India, Korea, Burma, Pakistan, the Philippines, Thailand, Vietnam, and Indonesia. Japan would be affected by the provision requiring the assignment of Asians to quotas on the basis of their ancestry. The quota for Chinese persons would also be affected by that restriction while the minimum quota for non-Chinese persons born in China would become subject to future reduction.
In view of these provisions, which constitute gratuitous insults to the peoples involved, it is not possible to understand the claim that these bills would remove discrimination against Asians.
The McCarran and Walter bills are racially discriminatory in another respect. Under existing laws, immigrants from colonies, which are not assigned their own quotas, are charged to the quota [Page 1597] of the mother country. The McCarran and Walter bills would place a limit of 100 on the number of immigrants from any colonial possession that could be charged to the quota of the mother country in any one year. It has been argued that this provision is not discriminatory because it applies to all colonial peoples regardless of race. However, the provision is directed against and in practice would hit hardest the immigration of Negroes from the West Indies. In that sense, it may fairly be said to be racially discriminatory.
The McCarran and Walter bills would establish a “system of selective immigration” which is said to be “geared to the needs of the United States”. Under this system, the following preferences would be established:
- Fifty percent of each quota would be reserved for immigrants whose services are determined by the Attorney General to be needed urgently in the United States because of the high education, technical training, specialized experience, or exceptional ability of the immigrants and to be substantially beneficial prospectively to the national economy, cultural interests, or welfare of the United States;
- Thirty percent would be reserved for the parents of United States citizens; and
- Twenty percent would be reserved for the spouses and children of aliens who have been admitted to this country for permanent residence.
It is important to note that preferences would be granted only on the petition of persons already in the United States and that portions of each quota not used by preferred classes would be available for use by persons not eligible for preferences.
Existing laws already grant preferences to certain relatives of citizens and alien residents. Whatever the advantages, commercial or other, of adding a new preference category for persons whose services are said to be needed by this country, it would appear desirable to reserve some portion of each quota specifically for self-initiated immigration rather than to relegate such immigration entirely to a residual position.
One perplexing aspect of the selective immigration policy established by the bills is that they would actually make the immigration of professors more difficult than it now is. Under existing laws, both ministers and professors are admitted as nonquota immigrants. The McCarran and Walter bills would revoke this privilege insofar as it is enjoyed by professors and would require them to enter under quota limitations. Whether or not professors would be accorded a quota preference under the first of the categories listed above would, of course, depend on interpretation of the [Page 1598] standards in particular cases. In view of the fact that only the status of professors, and not that of ministers, would be changed by the bills, it appears that the purpose of the change is to make the immigration of professors more difficult.
Grounds for Exclusion
The House Committee report on the Walter bill states that the bill “broadens the grounds for exclusion and deportation of criminal aliens mostly in accordance with recommendations made by the Senate Special Committee to Investigate Organized Crime.” This statement is misleading since the Senate Crime Committee made no recommendations with respect to the exclusion of aliens. However, the McCarran and Walter bills do propose changes in present provisions of law excluding criminals.
Existing laws already exclude aliens who have been convicted of crimes involving moral turpitude or who admit having committed such crimes. Section 212(a)(9) of both bills would also exclude aliens who admit having committed the “essential elements” of such crimes—whatever that may mean. The Department of Justice has stated that “the present provisions of law are adequate to protect the interest of the United States as well as being fair to the alien.”
An entirely new ground for exclusion would be added by the Walter bill to bar the entry of aliens who have been convicted of two or more offenses (other than purely political offenses), regardless of whether the offenses involved moral turpitude, for which the sentence actually imposed under law was five years or more. The McCarran bill contains a similar but not identical provision. The effects of this unnecessary provision could, of course, be mitigated by liberal interpretation of the phrase “purely political offenses”. However, there is no guarantee of liberal interpretation, and there are limits beyond which the interpretation could not be stretched however meritorious the particular case. For example, it does not seem reasonable to exclude persons who have violated some of the oppressive but not purely political laws of totalitarian countries and who have received disproportionately harsh sentences as a result.
Section 212(a)(18) of both bills would revoke the Attorney General’s present discretionary authority to admit stowaways.
Existing laws grant exemption from literacy requirements to religious persecutees and to certain relatives of persons residing in the United States. These exceptions would be dropped by section 212(a)(25) of both bills.
Section 212(a)(19) of both bills would exclude any alien who seeks to enter this country by fraud or by willfully misrepresenting a material fact. The Walter bill would—the McCarran bill would [Page 1599] not—make an exception in the case of aliens whose misrepresentation “had its origin in an action where he had reasonable ground to fear persecution because of race, religion or political opinions and when such misrepresentation is found by the Attorney General not to have been material.” An exception along these lines appears highly desirable; however, as the Department of Justice pointed out to the House Committee, the exception “loses its entire meaning by its own language …5 Obviously, if the fact misrepresented was not material, then there will be no ground for exclusion” in the first place.
Provisions of section 212 of both bills relating to exclusion on medical grounds raise special problems. The Federal Security Agency has pointed out that in several important cases, the bills use terms which have no exact medical significance. For example, the exclusion of all persons who have a “mental defect” would, if literally interpreted, result in the exclusion of most aliens since relatively few persons are wholly free of any mental defect. In cases where such language is used, FSA sought unsuccessfully to secure language which would be satisfactory both from the standpoint of public understanding and medical exactness.
In general, FSA has described the medical provisions of the bills as being in some respects “less humane” than those of existing law and “from a medical point of view, unnecessarily restrictive.”
Section 212(e) of both bills would give the President authority to exclude any and all aliens whose entry he considered “detrimental to the interests of the United States.”
Exclusion of “Subversives”
Section 212(a)(28) of the McCarran and Walter bills includes provisions similar to those of the Internal Security Act of 19506 with respect to the exclusion of persons who are or have been members of or affiliated with Communist and other totalitarian organizations and activities. It is important to note, however, that the bills define “totalitarian” to apply only to advocacy of the establishment in the United States of a totalitarian dictatorship or totalitarianism. It appears that this provision is intended to remove political barriers to the entry of Nazis and Fascists.
Section 212(a)(28)(I) of the bills would permit the entry of involuntary totalitarians and of reformed totalitarians who have subsequent records of active opposition to totalitarianism and whose entry into this country is found to be in the public interest. It would appear sufficient to have required a finding that the entry of such a person would not be detrimental to the public interest.[Page 1600]
As does the Internal Security Act, these bills exclude persons seeking to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States.
The bills would also exclude persons who probably would engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in any other activity subversive to the national security; or in any activity a purpose of which is opposition to or the control or overthrow of the Government by force, violence, or other unconstitutional means; or who would probably join or affiliate with any Communist-front or Communist-action organization. Addition of the word “probably” represents a further loosening of a standard that was already vague in some respects.
Grounds for Deportation
Before discussing particular grounds for deportation under the McCarran and Walter bills, it should be emphasized that many of them would apply retroactively. Aliens could be deported for past actions which did not constitute grounds for deportation when committed. This is provided in section 241(d) of both bills. Provisions noted below include only some of the changes in and additions to existing laws.
Existing statutes of limitation with respect to deportation on certain technical grounds would be repealed.
Section 241(a)(3) of the McCarran bill would require the deportation of any alien who in the future within five years after entry becomes institutionalized because of mental disease, defect, or deficiency. The Walter bill would deport such aliens if institutionalization is at public expense and if the alien cannot show that the disease, defect, or deficiency did not exist prior to his entry into the United States.
Section 241(a)(4) of the McCarran bill would require the deportation of an alien who at any time after entry is convicted in the United States of any criminal offense if the Attorney General concludes that the alien is undesirable. The Walter bill does not include this provision.
Deportation of “Subversives”
The McCarran and Walter bills present a peculiarly inconsistent approach in dealing with former members of Communist and other totalitarian organizations. An alien who joined such an organization abroad and terminated his membership before entering this country would not be deported because of his past membership. But an alien who joined such an organization after entering this country [Page 1601] would be deported even though he had subsequently sincerely repudiated his membership. This matter is dealt with by section 241(a)(6) of the bills.
The drafting of this particular section has been greatly criticized by the Department of Justice, which points out that the language is so confusing that an alien could gain admission one day by showing that his presently continued membership in a subversive organization was involuntary and become deportable the next day because he is still a member of the organization, involuntary or not.
Section 241(a)(7) of both bills provides for the deportation of aliens who at any time after entry have engaged or have had a purpose to engage in such activities as the following: activities “prejudicial to the public interest”; activities that “endanger the welfare, safety, or security of the United States”; any activity “subversive to the national security”; any Communist-front activity if the person knew the organization involved was Communist. The possibility of abuse of these provisions, particularly when applied to actions which may have taken place years ago and particularly when the alien simply had to “have a purpose” to engage in them, is clear.
Diplomatic sanctuary would be severely limited by section 241(e) of the bills. It appears that no sanctuary at all would be allowed Communist diplomats who might repudiate the regimes in their home countries. Such diplomats would be deported even if the Secretary of State believed that it would be desirable to give them sanctuary.
Exclusion and Deportation Procedures
The vague and abusive character of certain of the grounds for excluding and deporting aliens would be somewhat less frightening were adequate procedures for implementing them prescribed by the bills. However, this is not the case. In this connection it may be pointed out that there has long been opposition to applying the provisions of the Administrative Procedure Act to exclusion and deportation proceedings. It is argued that proceedings under that Act are too costly, too time-consuming, and too strict to make it worthwhile to apply them in the case of aliens. The Supreme Court decided several years ago that the provisions of the Administrative Procedure Act were applicable to exclusion and deportation proceedings. A rider to a subsequent appropriation bill provided the exemption denied by the Court.
The McCarran and Walter bills would provide “special” procedures for exclusion and deportation that are apparently specifically designed to maintain the exemption from the Administrative Procedure Act. There would, of course, be no objection to this if the [Page 1602] procedures provided offered sufficient safeguards for the aliens as well as for the United States, but they do not. Proceedings would be conducted by “special inquiry officers”, regular employees of the Immigration and Naturalization Service, rather than by independent hearings officers. Special inquiry officers could act both as prosecutor and judge. Less assurance would be given of the alien’s right to submit evidence in his own behalf, cross-examine witnesses appearing against him, and in other ways to defend himself.
Section 242(b) requires only that an alien be given a “reasonable opportunity” to be present at a hearing to determine his deportability. If his failure to appear were decided for some reason to be unreasonable, the “hearing” could be held without him, and he could be found to be deportable without even being present. The Government may need additional power to compel such persons to appear, but to hold a “hearing” and find an alien deportable without his being present is clearly unreasonable regardless of the reason for the alien’s absence. Three provisions of the bills would authorize deportation without any hearing whatsoever: section 242(f), in the case of previously deported aliens who have reentered the country unlawfully; section 252(b), in the case of alien crewmen if immigration officers find that they are not bona fide crewmen or that they do not intend to depart on the vessel or aircraft that brought them; and section 273(d), in the case of stowaways. It is not apparent why hearings are any less necessary to determine the facts in these cases than in any other cases.
It appears that both bills would attempt to limit judicial review to a very narrow basis. The McCarran bill is more restrictive in this respect than the Walter bill.
In the case of the Walter bill, procedures proposed in connection with exclusion are made more acceptable by the fact that section 236 was amended during the House debate on the bill to guarantee the right of aliens to appeal to the Board of Immigration Appeals for review of adverse administrative decisions with respect to their admissibility. The McCarran bill provides only for appeal to the Attorney General. Deportation procedures of both bills are cause for grave concern.
It is particularly important to note that discretionary suspension of deportation by the Attorney General would be restricted to an extreme degree by both bills and would be made much more difficult than under existing laws.
In connection with the discussion of deportation, it should be pointed out that section 243(g) of both bills provides that upon notification by the Attorney General that any country has unduly delayed the acceptance of or has refused to accept a deportee from the United States who is a national, citizen, subject, or resident of [Page 1603] that country, the Secretary of State would have to discontinue the issuance of immigration visas to immigrants from that country until the country accepts the deportee in question. The penalty provided in this provision is obviously disproportionate to the offense. Furthermore, the Secretary of State would have no discretion in applying it regardless of the effects of the move on our international relations. Finally, the provision would give other countries considerable control over the issuance of immigration visas by the United States.
Detention and Deportation Expenses
The generous treatment the McCarran and Walter bills would accord the carriers that bring aliens to this country stands in marked contrast to the treatment accorded the aliens themselves. Under existing laws, carriers are generally required to pay the detention expenses of aliens whom they have brought to this country and who must be detained for examination. If an alien is found to be inadmissible or if within five years after his entry he is found to be deportable for reasons existing prior to his entry, the carrier must pay the cost of deporting him. In other words, the carriers have, in effect, assumed as a risk of business that the aliens they bring to this country will be eligible for admission. It appears that one effect of this has been to discourage carriers from encouraging inadmissible aliens to book passage to this country thereby exploiting the aliens and causing increased difficulties for United States authorities.
A series of provisions in the McCarran and Walter bills provides for the relief of carriers from these expenses under certain broad and vaguely defined circumstances. The Department of Justice has described the language of certain of these provisions as “obscure” and has said that they will “undoubtedly lead to litigation and controversy”. The Department apparently feels that the result of these provisions would be to shift the major burden of these expenses to the taxpayers of this country. This, the Department says, would constitute “a subsidy not only for American carriers but also for the many foreign carriers engaged in bringing passengers to the United States.”
It is, of course, somewhat difficult to assess the degree of responsibility that carriers should be required to bear in these cases. It may be that existing laws are too stringent and that some additional relief should be granted carriers. However, it appears that the McCarran and Walter bills fail to give adequate protection to the interests of the United States in this matter.[Page 1604]
Alien Registration Cards
The bills would require every alien, eighteen years of age or over, to carry with him at all times a certificate of registration or alien registration receipt card. Failure to do so, regardless of the reason, would be punished by a fine of $100 and/or thirty days’ imprisonment. Such a requirement is unnecessary in the first place, and the penalty provided is extremely harsh for the nature of the offense.
Social Security Files
Section 290 of each of the bills provides that the Federal Security Administrator shall notify the Attorney General upon request whenever any alien is issued a social security account number and card and that the Federal Security Administrator shall furnish “such available information as may be requested by the Attorney General regarding the identity and locations of aliens in the United States.”
Even though this provision would require the opening of the social security files only for limited purposes, questions arise as to both the necessity and desirability of such a proposal. It should be pointed out that administrative arrangements already make necessary information available in cases involving the national security. A general opening of the files beyond the needs of national security, even for limited purposes, would violate the principle of the confidential nature of the files and would open the way for more extensive violations in the future.
Several of the bills’ naturalization provisions call for special comment.
Section 313(a)(2)(f) of both bills would bar the naturalization of any alien who had been a member of or affiliated with the direct predecessor or successor of any Communist or other totalitarian organization. This provision is unnecessarily harsh in that it would bar the naturalization of an alien who was a member of an organization taken over by the Communists even though he may have left it before Communist domination became effective.
Ability to read, write, and speak English would be required in all cases except those involving the physically handicapped and in the case of persons who, on the effective date of the enactment of the legislation, are over fifty years of age and have been living in the United States for twenty years.
Past involuntary membership in Communist and other totalitarian organizations would not prevent naturalization nor would voluntary [Page 1605] membership which terminated ten years prior to the filing of the alien’s petition for naturalization.
Both bills would make restrictive changes in the requirements for the automatic acquisition of citizenship by children born outside of the United States of alien parents who are later naturalized or of one citizen and one alien parent who is later naturalized. Several other restrictive changes would be made with respect to the citizenship of certain children.
Oath of Naturalization
Under existing law, if an alien seeking to be naturalized can show to the satisfaction of the naturalization court that he is opposed because of religious training and belief to the bearing of arms, he is not required to accept an obligation to bear arms in taking the oath of naturalization. Section 337 of the McCarran and Walter bills would require all persons seeking to become naturalized citizens to take an oath accepting the obligation to bear arms on behalf of the United States when required to do so by law.
During debate on the bill that bears his name, Mr. Walter stated that he discussed this provision with the Quakers and that “I am certain that they are satisfied with the language in the House bill.” On the contrary, since the House passed the Walter bill, official representatives of the Quakers have stated that they are “uneasy” about the language of the Walter bill and that they would “much prefer” the provisions of existing law.
The matter involved is a matter of individual conscience. It is doubtful that any sound purpose would be served by refusing citizenship to the relatively small number of persons who cannot accept an obligation to bear arms.
Loss of citizenship is one of the gravest penalties that can be imposed on a naturalized citizen. Under existing laws, it must be proved that citizenship was procured through fraud or illegality before naturalization can be revoked (except when the citizen performs some act of renunciation). Section 340 of the McCarran and Walter bills makes it sufficient to prove concealment of a material fact or willful misrepresentation. It should be remembered that both bills involve a great increase in the number of “material” facts and that many of these “facts” partake of the nature of political beliefs and opinions.
Both bills specifically provide that if a naturalized citizen within five years following his naturalization becomes a member of or affiliated with any organization, membership in which at the time of naturalization would have precluded his becoming a citizen, his citizenship would be revoked on the grounds of concealment of a [Page 1606] material fact or willful misrepresentation. Such a probationary period after naturalization amounts to second class citizenship.
Another second class citizenship provision is included in section 340(a) of the Walter bill but is not included in the McCarran bill. Under this provision, “refusal on the part of a naturalized citizen, within a period of ten years following his naturalization, to testify as a witness concerning his knowledge of subversive activities in any proceeding before a congressional committee, where such testimony would not be a self-incriminating ground for criminal action, shall be held to constitute a rebuttable presumption of fraud.” The effects of this provision are not clear. However, the provision is included among provisions relating to revocation of naturalization. Therefore, it appears that the Walter bill would threaten naturalized citizens with loss of citizenship if they simply refused to testify before congressional committees on any ground other than self-incrimination.
Under section 340(b) of both bills, if the government seeks to revoke the citizenship of a naturalized citizen on grounds of concealment of a material fact or willful misrepresentation and if the citizen is at the time outside of the United States or outside of the judicial district in which he last had his residence, he could be given notice either by personal service or publication. Despite the importance of the matter, no showing would have to be made that personal service was impossible.
Under some circumstances, an alien who enters this country as a nonimmigrant may have his status changed to that of an alien admitted for permanent residence. Should an alien be naturalized on the basis of such an adjustment of status and should it later be discovered that he was not, for whatever reason, eligible for the adjustment of status, he would, under section 246(b) of both bills, be considered a person whose naturalization had been procured by concealment of a material fact or by willful misrepresentation.
The general question of the loss of citizenship by natural-born citizens has not been discussed, but it should be noted that the bills contain several questionable provisions relating to this subject.
Proof of Nationality
Under existing laws, if a person claims a right or a privilege as a national of the United States and is denied such a right or privilege by a Government official on the ground that he is not a national, he may institute court action seeking a judgment declaring him to be a national. If the person happens to be outside of the United States, he may be issued a certificate of identity and admitted for the purpose of prosecuting his action on the condition that he shall be subject to deportation if the court rules against [Page 1607] him. Both the McCarran and Walter bills would weaken existing laws in this highly important matter.
In the first place, the McCarran bill would not allow such action to be instituted if the question of the person’s status as a United States national arose in connection with or was an issue in any deportation or exclusion proceeding. In the second place, the bills would place time limits on the right of many persons to institute such action. The McCarran bill would impose such a limit only in the case of a person in the United States; the Walter bill, in the case of such a person and in the case of a person abroad. Under these provisions, a person could be permanently deprived of his nationality as a result of an administrative action.
Both bills provide for the issuance of certificates of identity to such persons abroad. The McCarran bill would then require such persons to be subject to the regular proceedings involving aliens seeking admission. An adverse decision of the Attorney General could be reviewed only on writ of habeas corpus. The Walter bill would facilitate the entry of such a person to prosecute his action to a greater extent than would the McCarran bill.
The organizational provisions of both bills violate sound principles of administration. Section 104 of the bills would create a statutory “Bureau of Security and Consular Affairs” within the State Department. This provision, which would make it impossible for the Secretary of State to control the structure of that part of his Department, directly contravenes the Hoover Commission’s7 recommendation that “each department head should receive from the Congress administrative authority to organize his department …” The Hoover Commission’s recommendation that “there must be a clear line of authority reaching down through every step of the organization and no subordinate should have authority independent from that of his superior” would be ignored by sections 104 and 105. The latter section would affect the Department of Justice as well as the Department of State.
In addition to raising these questions concerning the authority of department heads over the organization and administration of their departments, the Walter bill raises the question of the proper relationship of the Congress to the Executive Branch. The answer that the Walter bill gives to that question is apparently intended to [Page 1608] inject the Congress directly into the administration of the immigration and naturalization laws. Section 401 of the Walter bill would create a “Joint Committee on Immigration and Naturalization Policy” and would require that the Attorney General and the Secretary of State “shall without delay submit to the Committee all regulations, instructions and all other information as requested by the Committee relative to the administration of this Act.” This section clearly goes far beyond the scope of proper Congressional activity.
Of secondary importance are a number of other provisions of both bills that are objectionable from the point of view of good administration. Section 103 would, among other things, raise the salary of the Commissioner of Immigration and Naturalization to $17,500 a year. His present salary of $15,000 was set by legislation which took into consideration the pay of many Government executives. Changes should be made the same way in order to preserve proper relationships. Section 283 would exempt the Immigration and Naturalization Service from existing general legislation governing travel expenses. There is no reason why that Service should be singled out to receive such an exemption.
- Ante, p. 1587.↩
- David D. Lloyd, Administrative Assistant to the President.↩
- Public Law 68–139, enacted May 26, 1924; for text, see 43 Stat. 153.↩
- “Revising the Laws Relating to Immigration, Naturalization and Nationality,” House Report 1365, 82d Cong., 2d sess. (Washington, 1952).↩
- Ellipses throughout in the source text.↩
- Public Law 81–831, enacted Mar. 18, 1974; for text, see 64 Stat. 987.↩
- Reference is to the first Commission on Organization of the Executive Branch of the Government, established by Congress in 1947 to study and make recommendations by January 1949, concerning ways to improve the efficiency and promote economy in the operation of executive agencies. Former President Herbert Hoover served as Chairman of the Commission which submitted 273 recommendations to Congress early in 1949.↩