The statement of the problem. Principles laid down in other cases. 81. The Power of Administrative Officials to Decide Cases Affecting Life, Liberty, and Property* It is a theory of our constitutional law that the courts are the proper resort of citizens or persons claiming that their rights have been infringed by public officers. However, with the multiplication of official duties connected with immigration, commerce, and taxation, it was found necessary to give to administrative, i.e., nonjudicial officers, large powers in deciding finally cases affecting the rights of persons. The question was speedily raised whether administrative officials could constitutionally exercise semi-judicial functions, and the Supreme Court answered it in the affirmative, in the following case, holding that due process of law does not require judicial trial.1 In a habeas corpus proceeding in a District Court of the United States instituted in behalf of a person of Chinese descent being held for return to China by the steamship company which recently brought him therefrom to a port of the United States and who applied for admission therein on the ground that he was a native born citizen thereof but who, after a hearing, the lawfully designated immigration officers found not born therein and to whom they denied admission, which finding and denial, upon appeal to the Secretary of Commerce and Labor was affirmed - should the court treat the finding and the action of such executive officers upon the question of citizenship and other questions of fact as having been made by a tribunal authorized to decide the same and as final and conclusive unless it be made affirmatively to appear that such officers, in the case submitted to them, abused the discretion vested in them or in some other way in hearing and determining the same committed prejudicial error? The broad question is presented whether or not the decision of the Secretary of Commerce and Labor is conclusive. In the Japanese Immigrant Case (Yamataya v. Fisher), 189 U. S., 86, 97, it was said: "That Congress may exclude aliens of 1 For an excellent article on the subject, see The Political Science Review, Vol. I, 583 ff., an article by Thomas Reed Powell. a particular race from the United States; prescribe the terms and conditions upon which certain classes of aliens may come to this country; establish regulations for sending out of the country such aliens as come here in violation of the law; and commit the enforcement of such provisions, conditions, and regulations exclusively to executive officers without judicial intervention, are principles firmly established by the decisions of this court." In Fok Young Yo v. United States, 185 U. S., 296, 304, 305, it was held that the decision of the collector of customs on the right of transit across the territory of the United States was conclusive, and, still more to the point, in Lem Moon Sing v. United States, 158 U. S., 538, where the petitioner for habeas corpus alleged facts which, if true, gave him a right to enter and remain in the country, it was held that a decision of the collector was final as to whether or not he belonged to the privileged class. In view of the cases which we have cited it seems no longer open to discuss the question propounded as a new one. Therefore we do not analyze the nature of the right of a person presenting himself at the frontier for admission. But it is not improper to add a few words. The petitioner, although physically within our boundaries, is to be regarded as if he had been stopped at the limit of our jurisdiction and kept there while his right to enter was under debate. If, for the purpose of argument, we assume that the Fifth amendment applies to him and that to deny entrance to a citizen is to deprive him of liberty, we nevertheless are of the opinion that with regard to him due process of law does not require a judicial trial. That is the result of the cases which we have cited and the almost necessary result of the power of Congress to pass exclusion laws. That the decision may be entrusted to an executive officer and that his decision is due process of law was affirmed and explained in Hishimura Ekiu v. United States, 142 U. S., 651, 660. 1 See above, p. 137. Due process of law does not require judicial trial. The effect of a fraud order. Nature of post-office inquiries. The great extent of the fraudorder business. 82. The Fraud Orders of the Post-office Department * Another example of the way in which private rights are subjected to administrative discretion without relief by judicial process is afforded by the right of the Postmaster-General to exlude summarily from the mails anything that he may deem fraudulent. The following attack made in Congress on this practice indicates the dangers of carrying the powers of administrative officials too far. The Supreme Court has held that the fraud-order power may be conferred upon the Postmaster-General because the right to the mail is a privilege and not a vested right, and that the proceeding is not criminal in its character. While this may be the correct constitutional theory, yet the party against whom a fraud-order is issued is branded as a criminal and stigmatized as a perpetrator of fraud. It makes him an outlaw as far as one of the most important branches of the Government is concerned. The issuance of such an order covers all his mail and deprives him of the right to communicate with his friends, his wife, or his mother, or to receive any communication from them by means of the mails. All of this is done upon confidential reports, the result of secret investigations based upon ex parte statements of persons whose motives cannot be known, who may be responsible or who may be irresponsible, who may not be competent witnesses, and who are not sworn and do not carry the responsibilities of ordinary witnesses. Their names and identity are not disclosed, and their evidence does not contain one single safeguard against fraud or one single test of credibility. Such evidence would not be received in the humblest magistrate's court of the country in a case involving the investigation of the most inconsequential right of person or property. The investigation and decision of fraud-order cases under the practice in the Department is necessarily made by the Assistant Attorney-General. During the two years ending June 30 last, 660 fraud orders were issued and a number of cases investigated 1 where the accused agreed to modify his advertising matter so that ... He is entitled to I have no sympathy with or respect for the policy that affects The citizen the important rights of person, reputation, or property by means of confidential reports of secret emissaries of the law. Reports evidence containing evidence respecting the rights of the citizen should against him. always be made public. No consideration of delicacy or embarrassment should justify the Government in blasting the reputation and ruining the business of a citizen without giving him an opportunity to know exactly who has testified against him and to what he has testified. The reports of inspectors under any practice should be open to the person who may be affected by the fraudorder. He should be allowed to know who have given information or testified against him, and citizens who are interviewed should understand that their names and statements would be open to inspection by the person against whom they testify or give information. This would have a most wholesome and salutary influence. Men would see that the statements that were written up by the post-office inspectors and credited to them were fair and just and absolutely true. There should be no inducement or opportunity for men to attempt to stab the business or reputation of rivals in the dark. The growth of the national administration. 83. The "Spoils System" in National Administration It was early discovered that federal offices could be used to reward friends and punish enemies without regard to administrative efficiency, and this practice steadily developed until, in Andrew Jackson's day, it became an open and avowed rule of politics. The pass to which the unhampered spoils system brought the national administration is described in the following report to the Senate in 1882. The growth of our country from 350,000 square miles to 4,000,000, the increase of population from 3,000,000 to 50,000,000, the addition of twenty-five States, imperial in size and capabilities, have caused a corresponding development of the machinery and faculties of the government. In the beginning — even so late as 1801 there were 906 post-offices; now there are 44,848. Then there were 69 custom-houses; now there are 135. Then the revenues were less than $3,000,000; now they are $400,000,000. Then our ministers to foreign countries were 4; now they are 33. Then our consuls were 63; now they are 728. Then less than 1,000 men sufficed to administer the government; now more than 100,000 are needed. Then one man might personally know, appoint on their merits, supervise the performance of their duties, and for sufficient cause remove all officers; now, no single human being, however great his intelligence, discrimination, industry, endurance, devotion, even if relieved of every other duty, can possibly, unaided, select and retain in official station those best fitted to discharge the many and varied and delicate functions of the government. It has come to pass that the work of paying political debts and discharging political obligations, of rewarding personal friends and whelmed by punishing personal focs, is the first to confront each President on assuming the duties of his office, and is ever present with him even to the last moment of his official term, giving him no rest and little time for the transaction of other business, or for the study of any higher or grander problems of statesmanship. He is compelled to give daily audience to those who personally seek place, or to the army of those who back them. He is to do what some The President over office seekers. |