United States v. Lovett



328 U.S. 303

United States v. Lovett


Argued: May 3, 6, 1946 --- Decided: June 3, 1946 [*]
1. The issue as to the validity of § 304 of the Urgent Deficiency Appropriation Act of 1943, providing that, after November 15, 1943, no salary or other compensation shall be paid to certain employees of the Government (specified by name) out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were again appointed by the President with the advice and consent of the Senate prior to such date, is not a mere political issue over which Congress has final say, and a challenge to its constitutionality presents a justiciable question to the courts. P. 313.

(a) It is not a mere appropriation measure over which Congress has complete control. P. 313.

(b) Its purpose was not merely to cut off the employees' compensation through regular disbursing channels, but permanently to bar them from government service, except as jurors or soldiers -- because of what Congress thought of their political beliefs. P. 313.

(c) The Constitution did not contemplate that congressional action aimed at three individuals, which stigmatized their reputations and seriously impaired their chances to earn a living, could never be challenged in court. P. 314.

2. Section 304 violates Article I, § 3, cl. 9 of the Constitution, which forbids the enactment of any bill of attainder or ex post facto law. P. 315.

(a) Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial, are bills of attainder prohibited by the Constitution. Cummins v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333. P. 315.

(b) Section 304 clearly accomplishes the punishment of named individuals without a judicial trial. P. 316. [p304]

(c) The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found by Congress to be guilty of disloyalty make it no less effective than if it had been done by an Act which designated the conduct as criminal. P. 316.

The Court of Claims entered judgments in favor of certain government employees for services rendered after November 15, 1943, to whom § 304 of the Urgent Deficiency Appropriation Act of 1943, 57 Stat. 431, 450, forbade payment of any compensation after that date from appropriated funds. 104 Ct.Cls. 557, 66 F.Supp. 142. This Court granted certiorari. 327 U.S. 773. Affirmed, p. 318.


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328 U.S. 303

United States v. Lovett


Argued: May 3, 6, 1946 --- Decided: June 3, 1946 [*]
MR. JUSTICE BLACK delivered the opinion of the Court.

In 1943, the respondents, Lovett, Watson, and Dodd, were, and had been for several years, working for the Government. The government agencies which had lawfully [p305] employed them were fully satisfied with the quality of their work, and wished to keep them employed on their jobs. Over the protest of those employing agencies, Congress provided in § 304 of the Urgent Deficiency Appropriation Act of 1943, by way of an amendment attached to the House bill, that, after November 15, 1943, no salary or compensation should be paid respondents out of any monies then or thereafter appropriated except for services as jurors or members of the armed forces, unless they were, prior to November 15, 1943, again appointed to jobs by the President with the advice and consent of the Senate. [n1] 57 Stat. 431, 450. Notwithstanding the congressional enactment, and the failure of the President to reappoint respondents, the agencies kept all the respondents at work on their jobs for varying periods after November 15, 1943; but their compensation was discontinued after that date. To secure compensation for this post-November 15th work, respondents brought these actions in the Court of [p306] Claims. They urged that § 304 is unconstitutional and void on the grounds that: (1) The section, properly interpreted, shows a congressional purpose to exercise the power to remove executive employees, a power not entrusted to Congress, but to the Executive Branch of Government under Article II, § 1, 2, 3, and 4 of the Constitution; (2) the section violates Article I, § 9, Clause 3, of the Constitution, which provides that "No Bill of Attainder or ex post facto Law shall be passed"; (3) the section violates the Fifth Amendment, in that it singles out these three respondents and deprives them of their liberty and property without due process of law. The Solicitor General, appearing for the Government, joined in the first two of respondents' contentions, but took no position on the third. House Resolution 386, 89 Cong.Rec. 10882, and Joint Resolution No. 230, 78th Congress, 58 Stat. 113, authorized a special counsel to appear on behalf of the Congress. This counsel denied all three of respondents' contentions. He urged that § 304 was a valid exercise of congressional power under Article I, § 8, Clause 1; § 8, Clause 18, and § 9, Clause 7 of the Constitution, which sections empower Congress "To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States," and

To make all Laws which shall be necessary and proper for carrying into Execution . . . all . . . Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,

and provide that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . ." Counsel for Congress also urged that § 304 did not purport to terminate respondents' employment. According to him, it merely cut off respondents' pay, and deprived governmental agencies of any power to make enforceable contracts with respondents for any further compensation. The contention was that this involved [p307] simply an exercise of congressional powers over appropriations, which, according to the argument, are plenary, and not subject to judicial review. On this premise, counsel for Congress urged that the challenge of the constitutionality of § 304 raised no justiciable controversy. The Court of Claims entered judgments in favor of respondents. Some of the judges were of the opinion that § 304, properly interpreted, did not terminate respondents' employment, but only prohibited payment of compensation out of funds generally appropriated, and that, consequently, the continued employment of respondents was valid, and justified their bringing actions for pay in the Court of Claims. Other members of the Court thought § 304 unconstitutional and void, either as a bill of attainder, an encroachment on exclusive executive authority, or a denial of due process. 104 Ct.Cls. 557, 66 F.Supp. 142. We granted certiorari because of the manifest importance of the questions involved.

In this Court, the parties and counsel for Congress have urged the same points as they did in the Court of Claims. According to the view we take, we need not decide whether § 304 is an unconstitutional encroachment on executive power or a denial of due process of law, and the section is not challenged on the ground that it violates the First Amendment. Our inquiry is thus confined to whether the actions, in the light of a proper construction of the Act, present justiciable controversies, and, if so, whether § 304 is a bill of attainder against these respondents, involving a use of power which the Constitution unequivocally declares Congress can never exercise. These questions require an interpretation of the meaning and purpose of the section, which, in turn, requires an understanding of the circumstances leading to its passage. We, consequently, find it necessary to set out these circumstances somewhat in detail. [p308]

In the background of the statute here challenged lies the House of Representatives' feeling in the late thirties that many "subversives" were occupying influential positions in the Government and elsewhere, and that their influence must not remain unchallenged. As part of its program against "subversive" activities, the House, in May, 1938, created a Committee on Un-American Activities, which became known as the Dies Committee, after its Chairman, Congressman Martin Dies. H.Res. 282, 83 Cong.Rec. 7568-7587. This Committee conducted a series of investigations and made lists of people and organizations it thought "subversive." See, e.g., H.Rep. No. 1, 77th Cong., 1st Sess.; H.Rep. No. 2743, 77th Cong., 2d Sess. The creation of the Dies Committee was followed by provisions such as § 9A of the Hatch Act, 53 Stat. 1148, 1149, and § 15(f) and 17(b) of the Emergency Relief Appropriation Act of 1941, 54 Stat. 611, which forbade the holding of a federal job by anyone who was a member of a political party or organization that advocated the overthrow of our constitutional form of Government in the United States. It became the practice to include a similar prohibition in all appropriations acts, together with criminal penalties for its violation. [n2] Under these provisions, the Federal Bureau of Investigation began wholesale investigations of federal employees, which investigations were financed by special congressional appropriations. 55 Stat. 292, 56 Stat. 468, 482. Thousands were investigated.

While all this was happening, Mr. Dies, on February 1, 1943, in a long speech on the floor of the House, attacked thirty-nine named government employees as "irresponsible, unrepresentative, crackpot, radical bureaucrats," and [p309] affiliates of "Communist front organizations." Among these named individuals were the three respondents. Congressman Dies told the House that respondents, as well as the other thirty-six individuals he named, were, because of their beliefs and past associations, unfit to "hold a Government position," and urged Congress to refuse "to appropriate money for their salaries." In this connection, he proposed that the Committee on Appropriations "take immediate and vigorous steps to eliminate these people from public office." 89 Cong.Rec. 474, 479, 486. Four days later, an amendment was offered to the Treasury-Post Office Appropriation Bill which provided that "no part of any appropriation contained in this act shall be used to pay the compensation of" the thirty-nine individuals Dies had attacked. 89 Cong.Rec. 645. The Congressional Record shows that this amendment precipitated a debate that continued for several days. Id. 645-742. All of those participating agreed that the "charges" against the thirty-nine individuals were serious. Some wanted to accept Congressman Dies' statements as sufficient proof of "guilt," while others referred to such proposed action as "legislative lynching," id. at 651, smacking "of the procedure in the French Chamber of Deputies, during the Reign of Terror." Id. at 654. The Dies charges were referred to as "indictments," and many claimed this made it necessary that the named federal employees be given a hearing and a chance to prove themselves innocent. Id. at 711. Congressman Dies then suggested that the Appropriations Committee "weigh the evidence and . . . take immediate steps to dismiss these people from the Federal service." Id. at 651. Eventually, a resolution was proposed to defer action until the Appropriations Committee could investigate, so that accused federal employees would get a chance to prove themselves "innocent" of communism or disloyalty, and so that each "man would [p310] have his day in court," and "There would be no star chamber proceedings." Id. at 711 and 713, but see id. at 715. The resolution which was finally passed authorized the Appropriations Committee, acting through a special subcommittee,

. . . to examine into any and all allegations or charges that certain persons in the employ of the several executive departments and other executive agencies are unfit to continue in such employment by reason of their present association or membership or past association or membership in or with organizations whose aims or purposes are or have been subversive to the Government of the United States.

Id. at 734, 742. The Committee was to have full plenary powers, including the right to summon witnesses and papers, and was to report its "findings and determination" to the House. It was authorized to attach legislation recommended by it to any general or special appropriation measure, notwithstanding general House rules against such practice. Id. at 734. The purpose of the resolution was thus described by the Chairman of the Committee on Appropriations in his closing remarks in favor of its passage:

The third and the really important effect is that we will expedite adjudication and disposition of these cases, and thereby serve both the accused and the Government. These men against whom charges are pending are faced with a serious situation. If they are not guilty, they are entitled to prompt exoneration; on the other hand, if they are guilty, then the quicker the Government removes them, the sooner and the more certainly will we protect the Nation against sabotage and fifth-column activity.

Id. at 741.

After the resolution was passed, a special subcommittee of the Appropriations Committee held hearings in secret executive session. Those charged with "subversive" beliefs and "subversive" associations were permitted to testify, but lawyers, including those representing the agencies [p311] by which the accused were employed, were not permitted to be present. At the hearings, committee members, the committee staff, and whatever witness was under examination were the only ones present. The evidence, aside from that given by the accused employees, appears to have been largely that of reports made by the Dies Committee, its investigators, and Federal Bureau of Investigation reports, the latter being treated as too confidential to be made public.

After this hearing, the subcommittee's reports and recommendations were submitted to the House as part of the Appropriation Committee's report. The subcommittee stated that it had regarded the investigations "as in the nature of an inquest of office," with the ultimate purpose of purging the public service of anyone found guilty of "subversive activity." The committee, stating that "subversive activity" had not before been defined by Congress or by the courts, formulated its own definition of "subversive activity," which we set out in the margin. [n3] Respondents Watson, Dodd, and Lovett were, according to the subcommittee, guilty of having engaged in "subversive activity within the definition adopted by the committee." H.Rep. No. 448, 78th Cong., 1st Sess., 7, 9. The ultimate finding and recommendation as to respondent Watson, which was substantially similar to the findings with respect to Lovett and Dodd, read as follows:

Upon consideration of all of the evidence, your committee finds that the membership and association of Dr. Goodwin B. Watson with the organizations mentioned, [p312] and his views and philosophies as expressed in various statements and writings constitute subversive activity within the definition adopted by your committee, and that he is, therefore, unfit for the present to continue in Government employment.

H.Rep. No. 448, 78th Cong., 1st Sess., p. 6. As to Lovett, the Committee further reported that it had rejected a "strong appeal" from the Secretary of the Interior for permission to retain Lovett in government service because, as the Committee stated, it could not

escape the conviction that this official is unfit to hold a position of trust with this Government by reason of his membership, association, and affiliation with organizations whose aims and purposes are subversive to the Government of the United States.

Id. at 12.

Section 304 was submitted to the House along with the Committee Report. Congressman Kerr, who was chairman of the subcommittee, stated that the issue before the House was simply:" . . . whether or not the people of this country want men who are not in sympathy with the institutions of this country to run it." He said further: " . . . these people under investigation have no property rights in these offices. One Congress can take away their rights given them by another." 89 Cong.Rec. 4583. Other members of the House, during several days of debate, bitterly attacked the measure as unconstitutional and unwise. Id. at 4482-4487, 4546-4556, 4581-4605. Finally, § 304 was passed by the House.

The Senate Appropriation Committee eliminated § 304, and its action was sustained by the Senate. 89 Cong.Rec. 5024. After the first conference report, which left the matter still in disagreement, the Senate voted 69 to 0 against the conference report which left § 304 in the bill. The House, however, insisted on the amendment, and indicated that it would not approve any appropriation bill without § 304. Finally, after the fifth conference report [p313] showed that the House would not yield, the Senate adopted § 304. When the President signed the bill, he stated

The Senate yielded, as I have been forced to yield, to avoid delaying our conduct of the war. But I cannot so yield without placing on record my view that this provision is not only unwise and discriminatory, but unconstitutional.

H.Doc. 264, 78th Cong., 1st Sess.


In view of the facts just set out, we cannot agree with the two judges of the Court of Claims who held that § 304 required "a mere stoppage of disbursing routine, nothing more," and left the employer governmental agencies free to continue employing respondents and to incur contractual obligations by virtue of such continued work which respondents could enforce in the Court of Claims. Nor can we agree with counsel for Congress that the section did not provide for the dismissal of respondents, but merely forbade governmental agencies to compensate respondents for their work or to incur obligations for such compensation at any and all times. We therefore cannot conclude, as he urges, that § 304 is a mere appropriation measure, and that, since Congress, under the Constitution, has complete control over appropriations, a challenge to the measure's constitutionality does not present a justiciable question in the courts, but is merely a political issue over which Congress has final say.

We hold that the purpose of § 304 was not merely to cut off respondents' compensation through regular disbursing channels, but permanently to bar them from government service, and that the issue of whether it is constitutional is justiciable. The section's language, as well as the circumstances of its passage which we have just described, show that no mere question of compensation procedure or of appropriations was involved, but that it [p314] was designed to force the employing agencies to discharge respondents and to bar their being hired by any other governmental agency. Cf. United States v. Dickerson, 310 U.S. 554. Any other interpretation of the section would completely frustrate the purpose of all who sponsored § 304, which clearly was to "purge" the then existing and all future lists of government employees of those whom Congress deemed guilty of "subversive activities," and therefore "unfit" to hold a federal job. What was challenged, therefore, is a statute which, because of what Congress thought to be their political beliefs, prohibited respondents from ever engaging in any government work except as jurors or soldiers. Respondents claimed that their discharge was unconstitutional; that they consequently rightfully continued to work for the Government, and that the Government owes them compensation for services performed under contracts of employment. Congress has established the Court of Claims to try just such controversies. What is involved here is a congressional proscription of Lovett, Watson, and Dodd, prohibiting their ever holding a government job. Were this case to be not justiciable, congressional action, aimed at three named individuals, which stigmatized their reputation and seriously impaired their chance to earn a living, could never be challenged in any court. Our Constitution did not contemplate such a result. To quote Alexander Hamilton,

. . . a limited constitution . . . [is] one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

Federalist Paper No. 78. [p315]


We hold that § 304 falls precisely within the category of congressional actions which the Constitution barred by providing that "No Bill of Attainder or ex post facto Law shall be passed." In Cummins v. Missouri, 4 Wall. 277, 323, this Court said,

A bill of attainder is a legislative act which inflicts punishment without a judicial trial. If the punishment be less than death, the act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties.

The Cummins decision involved a provision of the Missouri Reconstruction Constitution which required persons to take an Oath of Loyalty as a prerequisite to practicing a profession. Cummins, a Catholic Priest, was convicted for teaching and preaching as a minister without taking the oath. The oath required an applicant to affirm that he had never given aid or comfort to persons engaged in hostility to the United States, and had never "been a member of, or connected with, any order, society, or organization, inimical to the government of the United States . . ." In an illuminating opinion which gave the historical background of the constitutional prohibition against bills of attainder, this Court invalidated the Missouri constitutional provision both because it constituted a bill of attainder and because it had an ex post facto operation. On the same day the Cummins case was decided, the Court, in Ex parte Garland, 4 Wall. 333, also held invalid on the same grounds an Act of Congress which required attorneys practicing before this Court to take a similar oath. Neither of these cases has ever been overruled. They stand for the proposition that legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution. [p316] Adherence to this principle requires invalidation of § 304. We do adhere to it.

Section 304 was designed to apply to particular individuals. [n4] Just as the statute in the two cases mentioned, it "operates as a legislative decree of perpetual exclusion" from a chosen vocation. Ex parte Garland, supra, at 377. This permanent proscription from any opportunity to serve the Government is punishment, and of a most severe type. It is a type of punishment which Congress has only invoked for special types of odious and dangerous crimes, such as treason, 18 U.S.C. 2; acceptance of bribes by members of Congress, 18 U.S.C. 199 202, 203; or by other government officials, 18 U.S.C. 207 and interference with elections by Army and Navy officers, 18 U.S.C. 58.

Section 304, thus, clearly accomplishes the punishment of named individuals without a judicial trial. The fact that the punishment is inflicted through the instrumentality of an Act specifically cutting off the pay of certain named individuals found guilty of disloyalty makes it no less galling or effective than if it had been done by an Act which designated the conduct as criminal. [n5] No one would think that Congress could have passed a valid law stating that, after investigation, it had found Lovett, Dodd, and Watson "guilty" of the crime of engaging in "subversive activities," defined that term for the first time, and sentenced them to perpetual exclusion from any government employment. Section 304, while it does not use that language, accomplishes that result. The effect was to inflict punishment without the safeguards of a judicial trial and [p317] "determined by no previous law or fixed rule." [n6] The Constitution declares that that cannot be done either by a State or by the United States.

Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts. See Duncan v. Kahanamoku, 327 U.S. 304. And even the courts to which this important function was entrusted were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself, he cannot twice be put in jeopardy for the same offense, and, even after conviction, [p318] no cruel and unusual punishment can be inflicted upon him. See Chambers v. Florida, 309 U.S. 227, 235-238. When our Constitution and Bill of Rights were written, our ancestors had ample reason to know that legislative trials and punishments were too dangerous to liberty to exist in the nation of free men they envisioned. And so they proscribed bills of attainder. Section 304 is one. Much as we regret to declare that an Act of Congress violates the Constitution, we have no alternative here.

Section 304 therefore does not stand as an obstacle to payment of compensation to Lovett, Watson, and Dodd. The judgment in their favor is


MR. JUSTICE JACKSON took no part in the consideration or decision of these cases.

* Together with No. 810, United States v. Watson, and No. 811, United States v. Dodd, on certiorari to the same court, argued and decided on the same dates.

1. Section 304 provides:

No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this Act, or (2) which is now, or which is hereafter made, available under or pursuant to any other Act, to any department, agency, or instrumentality of the United States, shall be used, after November 15, 1943, to pay any part of the salary, or other compensation for the personal services, of Goodwin B. Watson, William E. Dodd, Junior, and Robert Morss Lovett, unless prior to such date such person has been appointed by the President, by and with the advice and consent of the Senate: Provided, That this section shall not operate to deprive any such person of payment for leaves of absence or salary, or of any refund or reimbursement, which have accrued prior to November 15, 1943: Provided further, That this section shall not operate to deprive any such person of payment for services performed as a member of a jury or as a member of the armed forces of the United States nor any benefit, pension, or emolument resulting therefrom.

As we shall point out, the President signed the bill because he had to do so, since the appropriated funds were imperatively needed to carry on the war. He felt, however, that § 304 of the bill was unconstitutional, and failed to reappoint respondents.

2. 55 Stat. 92, § 5; 55 Stat. 265, § 504; 55 Stat. 303, § 7; 55 Stat. 366, § 10; 55 Stat. 408, § 3; 55 Stat. 446, § 5; 55 Stat. 466, § 704; 55 Stat. 499, § 10; House Doc. 833, 77th Cong., 2d Sess.


Subversive activity in this country derives from conduct intentionally destructive of or inimical to the Government of the United States -- that which seeks to undermine its institutions, or to distort its functions, or to impede its projects, or to lessen its efforts, the ultimate end being to overturn it all. Such activity may be open and direct, as by effort to overthrow, or subtle and indirect, as by sabotage.

H.Rep. No. 448, 78th Cong., 1st Sess., p. 5.

4. This is, of course, one of the usual characteristics of bills of attainder. See Wooddeson Law Lectures: A Systematical View of the Laws of England (1792), No. 41, 622.

5. See Cummins v. Missouri, supra, 4 Wall. at 325, 329; see also Fletcher v. Peck, 6 Cranch 87, 138-139; Burgess v. Salmon, 97 U.S. 381, 385.

6. See dissent of Mr. Justice Miller in Cummins v. Missouri, supra, 4 Wall. at 388; see also Wooddeson, supra, at 624, 638 et seq. Section 304 has all the characteristics of bills of attainder, even as they are set out by Justice Miller's dissent, except the corruption of blood. 4 Wall. at 387. The American precedents do not consider corruption of blood a necessary element. Originally, a judgment of death was necessary to attaint, and the consequences of attainder were forfeiture and corruption of blood. Coke, First Institute (on Littleton) (Thomas ed. 1818) Vol. III, 559, 563, 565. If the judgment was lesser punishment than death, there was no attaint, and the bill was one of pains and penalties. Practically all the American precedents are bills of pains and penalties. See Thompson, Anti-Loyalist Legislation During the American Revolution (1908) 3 Ill.L.Rev. 81, 153 et passim; John C. Hamilton, History of the Republic of the United States (1859) Vol. III, 23-40. The Constitution, in prohibiting bills of attainder, undoubtedly included bills of pains and penalties, as the majority in the Cummins case held.