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WONG YANG SUNG v. McGRATH, ATTORNEY GENERAL, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT. No. 154.
Argued December 6, 1949.
Decided February 20, 1950.
1. Administrative hearings in proceedings for the deportation of aliens must conform to the requirements of the Administrative Procedure Act, 5 U.S.C. 1001 et seq. Pp. 35-53.
2. The history of this Act discloses that it is remedial legislation which should be construed, so far as its text permits, to give effect to its remedial purposes where the evils it was aimed at appear. Pp. 36-41.
3. One of the fundamental purposes of the Act was to ameliorate the evils resulting from the practice of commingling in one person the duties of prosecutor and judge. Pp. 41-45, 46.
4. A hearing in a proceeding for the deportation of an alien was presided over by a "presiding inspector" of the Immigration Service, who had not investigated that particular case but whose general duties included the investigation of similar cases. There being no "examining inspector" present to conduct the prosecution, it was the duty of the "presiding inspector" to conduct the interrogation of the alien and the Government's witnesses, cross-examine the alien's witnesses, and "present such evidence as is necessary to support the charges in the warrant of arrest." It might become his duty to lodge an additional charge against the alien and hear the evidence on that charge. After the hearing, he was required to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order, for the consideration of the Commissioner of Immigration. Held: This was contrary to the purpose of the Administrative Procedure Act to ameliorate the evils resulting from a combination of the prosecuting and adjudicating functions in administrative proceedings. Pp. 45-48.
5. Section 5 of the Administrative Procedure Act, which establishes certain formal requirements for every "adjudication required by statute to be determined on the record after opportunity for agency hearing," applies to deportation proceedings conducted by the Immigration [339 U.S. 33, 34] Service, although the Immigration Act contains no express requirement for hearings in deportation proceedings. Pp. 48-51.
In a habeas corpus proceeding, the District Court held that the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. 1001 et seq., does not apply to deportation hearings. 80 F. Supp. 235. The Court of Appeals affirmed. 84 U.S. App. D.C. 419, 174 F.2d 158. This Court granted certiorari. 338 U.S. 812 . Reversed, p. 53.
Irving Jaffe argued the cause for petitioner. With him on the brief were Jack Wasserman, Gaspare Cusumano and Thomas A. Farrell.
Robert W. Ginnane argued the cause for respondents. With him on the brief were Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl, L. Paul Winings and Charles Gordon.
Wendell Berge, A. Alvis Layne, Jr. and John B. Gage filed a brief for Riss & Co., Inc., as amicus curiae, supporting petitioner. [339 U.S. 33, 35]
MR. JUSTICE JACKSON delivered the opinion of the Court.
This habeas corpus proceeding involves a single ultimate question - whether administrative hearings in deportation cases must conform to requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. 1001 et seq.
Wong Yang Sung, native and citizen of China, was arrested by immigration officials on a charge of being unlawfully in the United States through having overstayed shore leave as one of a shipping crew. A hearing was held before an immigrant inspector who recommended deportation. The Acting Commissioner approved; and the Board of Immigration Appeals affirmed.
Wong Yang Sung then sought release from custody by habeas corpus proceedings in District Court for the District of Columbia, upon the sole ground that the administrative hearing was not conducted in conformity with 5 and 11 of the Administrative Procedure Act. 1 [339 U.S. 33, 36] The Government admitted noncompliance, but asserted that the Act did not apply. The court, after hearing, discharged the writ and remanded the prisoner to custody, holding the Administrative Procedure Act inapplicable to deportation hearings. 80 F. Supp. 235. The Court of Appeals affirmed. 84 U.S. App. D.C. 419, 174 F.2d 158. Prisoner's petition for certiorari was not opposed by the Government and, because the question presented has obvious importance in the administration of the immigration laws, we granted review. 338 U.S. 812 .
The Administrative Procedure Act of June 11, 1946, supra, is a new, basic and comprehensive regulation of procedures in many agencies, more than a few of which can advance arguments that its generalities should not or do not include them. Determination of questions of its coverage may well be approached through consideration of its purposes as disclosed by its background.
Multiplication of federal administrative agencies and expansion of their functions to include adjudications [339 U.S. 33, 37] which have serious impact on private rights has been one of the dramatic legal developments of the past half-century. 2 Partly from restriction by statute, partly from judicial self-restraint, and partly by necessity - from the nature of their multitudinous and semilegislative or executive tasks - the decisions of administrative tribunals were accorded considerable finality, and especially with respect to fact finding. 3 The conviction developed, particularly within the legal profession, that this power was not sufficiently safeguarded and sometimes was put to arbitrary and biased use. 4
Concern over administrative impartiality and response to growing discontent was reflected in Congress as early as 1929, when Senator Norris introduced a bill to create [339 U.S. 33, 38] a separate administrative court. 5 Fears and dissatisfactions increased as tribunals grew in number and jurisdiction, and a succession of bills offering various remedies appeared in Congress. 6 Inquiries into the practices of state agencies, which tended to parallel or follow the federal pattern, were instituted in several states, and some studies noteworthy for thoroughness, impartiality and vision resulted. 7
The Executive Branch of the Federal Government also became concerned as to whether the structure and procedure of these bodies was conducive to fairness in the administrative process. President Roosevelt's Committee on Administrative Management in 1937 recommended complete separation of adjudicating functions and personnel from those having to do with investigation or prosecution. 8 The President early in 1939 also directed the Attorney General to name "a committee of eminent lawyers, jurists, scholars, and administrators to review the entire administrative process in the various [339 U.S. 33, 39] departments of the executive Government and to recommend improvements, including the suggestion of any needed legislation." 9
So strong was the demand for reform, however, that Congress did not await the Committee's report but passed what was known as the Walter-Logan bill, a comprehensive and rigid prescription of standardized procedures for administrative agencies. 10 This bill was vetoed by President Roosevelt December 18, 1940, 11 and the veto was sustained by the House. 12 But the President's veto message made no denial of the need for reform. Rather it pointed out that the task of the Committee, whose objective was "to suggest improvements to make the process more workable and more just," had proved "unexpectedly complex." The President said, "I should desire to await their report and recommendations before approving any measure in this complicated field." 13
The committee divided in its views and both the majority and the minority submitted bills 14 which were introduced in 1941. A subcommittee of the Senate Judiciary Committee held exhaustive hearings on three proposed [339 U.S. 33, 40] measures, 15 but, before the gathering storm of national emergency and war, consideration of the problem was put aside. Though bills on the subject reappeared in 1944, 16 they did not attract much attention.
The McCarran-Sumners bill, which evolved into the present Act, was introduced in 1945. 17 Its consideration and hearing, especially of agency interests, was painstaking. All administrative agencies were invited to submit their views in writing. A tentative revised bill was then prepared and interested parties again were invited to submit criticisms. 18 The Attorney General named representatives of the Department of Justice to canvass the agencies and report their criticisms, and submitted a favorable report on the bill as finally revised. 19 It passed both Houses without opposition and was signed by President Truman June 11, 1946. 20
The Act thus represents a long period of study and strife; it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest. It contains many compromises and generalities and, no doubt, some ambiguities. [339 U.S. 33, 41] Experience may reveal defects. But it would be a disservice to our form of government and to the administrative process itself if the courts should fail, so far as the terms of the Act warrant, to give effect to its remedial purposes where the evils it was aimed at appear.
Of the several administrative evils sought to be cured or minimized, only two are particularly relevant to issues before us today. One purpose was to introduce greater uniformity of procedure and standardization of administrative practice among the diverse agencies whose customs had departed widely from each other. 21 We pursue this no further than to note that any exception we may find to its applicability would tend to defeat this purpose.
More fundamental, however, was the purpose to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge. The President's Committee on Administrative Management voiced in 1937 the theme which, with variations in language, was reiterated throughout the legislative history of the Act. The Committee's report, which President Roosevelt transmitted to Congress with his approval as "a great document of permanent importance," 22 said:
Another study was made by a distinguished committee named by the Secretary of Labor, whose jurisdiction at the time included the Immigration and Naturalization Service. Some of the committee's observations have relevancy to the procedure under examination here. It said: [339 U.S. 33, 43]
Such were the evils found by disinterested and competent students. Such were the facts before Congress which gave impetus to the demand for the reform which this Act was intended to accomplish. It is the plain duty of the courts, regardless of their views of the wisdom or policy of the Act, to construe this remedial legislation to eliminate, so far as its text permits, the practices it condemns.
Turning now to the case before us, we find the administrative hearing a perfect exemplification of the practices so unanimously condemned.
This hearing, which followed the uniform practice of the Immigration Service, 24 was before an immigrant inspector, who, for purposes of the hearing, is called the "presiding inspector." Except with consent of the alien, the presiding inspector may not be the one who investigated the case. 8 C. F. R. 150.6 (b). 25 But the inspector's duties include investigation of like cases; and while he is today hearing cases investigated by a colleague, tomorrow his investigation of a case may be heard before the inspector whose case he passes on today. An "examining inspector" may be designated to conduct the prosecution, 8 C. F. R. 150.6 (n), but none was in this case; and, in any event, the examining inspector also has the same mixed prosecutive and hearing functions. The presiding [339 U.S. 33, 46] inspector, when no examining inspector is present, is required to "conduct the interrogation of the alien and the witnesses in behalf of the Government and shall cross-examine the alien's witnesses and present such evidence as is necessary to support the charges in the warrant of arrest." 8 C. F. R. 150.6 (b). It may even become his duty to lodge an additional charge against the alien and proceed to hear his own accusation in like manner. 8 C. F. R. 150.6 (1). Then, as soon as practicable, he is to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order. A copy is furnished the alien or his counsel, who may file exceptions and brief, 8 C. F. R. 150.7, whereupon the whole is forwarded to the Commissioner. 8 C. F. R. 150.9.
The Administrative Procedure Act did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions. But that the safeguards it did set up were intended to ameliorate the evils from the commingling of functions as exemplified here is beyond doubt. And this commingling, if objectionable anywhere, would seem to be particularly so in the deportation proceeding, where we frequently meet with a vote less class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused. Nothing in the nature of the parties or proceedings suggests that we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to federal agencies.
Nor can we accord any weight to the argument that to apply the Act to such hearings will cause inconvenience and added expense to the Immigration Service. Of course it will, as it will to nearly every agency to which it is applied. But the power of the purse belongs to Congress, and Congress has determined that the price [339 U.S. 33, 47] for greater fairness is not too high. The agencies, unlike the aliens, have ready and persuasive access to the legislative ear and if error is made by including them, relief from Congress is a simple matter.
This brings us to contentions both parties have advanced based on the pendency in Congress of bills to exempt this agency from the Act. Following an adverse decision, 26 the Department asked Congress for exempting legislation, 27 which appropriate committees of both Houses reported favorably but in different form and substance. 28 Congress adjourned without further action. The Government argues that Congress knows that the Immigration Service has construed the Act as not applying to deportation proceedings, and that it "has taken no action indicating disagreement with that interpretation"; that therefore it "is at least arguable that Congress was prepared to specifically confirm the administrative construction by clarifying legislation." We do not think we can draw that inference from incompleted steps in the legislative process. Cf. Helvering v. Hallock, 309 U.S. 106, 119 -120.
On the other hand, we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations. We do not feel justified in holding that a request for and failure to get in a single session of Congress clarifying legislation on a genuinely debatable point of agency procedure admits weakness in the agency's contentions. We draw, therefore, no inference in favor of either construction of the Act - from the [339 U.S. 33, 48] Department's request for legislative clarification, from the congressional committees' willingness to consider it, or from Congress' failure to enact it.
We come, then, to examination of the text of the Act to determine whether the Government is right in its contentions: first, that the general scope of 5 of the Act does not cover deportation proceedings; and, second, that even if it does, the proceedings are excluded from the requirements of the Act by virtue of 7.
The Administrative Procedure Act, 5, establishes a number of formal requirements to be applicable "In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing." The argument here depends upon the words "adjudication required by statute." The Government contends that there is no express requirement for any hearing or adjudication in the statute authorizing deportation, 29 and that this omission shields these proceedings from the impact of 5. Petitioner, on the other hand, contends that deportation hearings, though not expressly required by statute, are required under the decisions of this Court, 30 [339 U.S. 33, 49] and the proceedings, therefore, are within the scope of 5.
Both parties invoke many citations to legislative history as to the meaning given to these key words by the framers, advocates or opponents of the Administrative Procedure Act. Because 5 in the original bill applied to hearings required "by law," 31 because it was suggested by the Attorney General that it should be changed to "required by statute or Constitution," 32 and because it finally emerged "required by statute," the Government argues that the section is intended to apply only when explicit statutory words granting a right to adjudication can be pointed out. Petitioner on the other hand cites references which would indicate that the limitation to statutory hearing was merely to avoid creating by inference a new right to hearing where no right existed otherwise. We do not know. The legislative history is more conflicting than the text is ambiguous.
But the difficulty with any argument premised on the proposition that the deportation statute does not require a hearing is that, without such hearing, there would be no constitutional authority for deportation. The constitutional requirement of procedural due process of law derives from the same source as Congress' power to legislate and, where applicable, permeates every valid enactment of that body. It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and [339 U.S. 33, 50] who had been here some time even if illegally. The Court said:
Indeed, to so construe the Immigration Act might again bring it into constitutional jeopardy. When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself. It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceedings [339 U.S. 33, 51] the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake.
We hold that the Administrative Procedure Act, 5, does cover deportation proceedings conducted by the Immigration Service.
The remaining question is whether the exception of 7 (a) of the Administrative Procedure Act exempts deportation hearings held before immigrant inspectors. It provides:
Section 7 (a) qualifies as presiding officers at hearings the agency and one or more of the members of the body comprising the agency, and it also leaves untouched any others whose responsibilities and duties as hearing officers are established by other statutory provision. But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process.
We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards [339 U.S. 33, 53] enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner. *
[ Footnote 2 ] See e. g., Blachly and Oatman, Administrative Legislation and Adjudication 1 (1934); Landis, The Administrative Process 1 (1938); Pound, Administrative Law 27 (1942); Carrow, The Background of Administrative Law 1 (1948); The Federal Administrative Procedure Act and the Administrative Agencies 4 (N. Y. U. 1947); Final Report of Attorney General's Committee on Administrative Procedure 7 (1941), contained in S. Doc. No. 8, 77th Cong., 1st Sess. (1941); Cushman, The Independent Regulatory Commissions, cc. II-V (1941); Frankfurter, The Task of Administrative Law, 75 U. of Pa. L. Rev. 614 (1927); materials cited in n. 4, infra.
[ Footnote 3 ] See e. g., Dickinson, Administrative Justice and the Supremacy of Law, passim (1927); Final Report of Attorney General's Committee on Administrative Procedure, supra, at 11-18, 75-92; and see materials cited in n. 4, infra.
[ Footnote 4 ] E. g., Root, Public Service by the Bar, 41 A. B. A. Rep. 355, 368 (1916); Hughes, Some Aspects of the Development of American Law, 39 N. Y. B. A. Rep. 266, 269 (1916); Sutherland, Private Rights and Government Control, 42 A. B. A. Rep. 197, 205 (1917); Address of President Guthrie, 46 N. Y. B. A. Rep. 169, 186 (1923). After 1933, when the American Bar Association formed a Special Committee on Administrative Law, the Bar's concern can be traced in this Committee's reports. E. g., 58 A. B. A. Rep. 197, 407 (1933); 59 A. B. A. Rep. 539 (1934); 61 A. B. A. Rep. 720 (1936); 62 A. B. A. Rep. 789 (1937).
[ Footnote 5 ] S. 5154, 70th Cong., 2d Sess. (1929).
[ Footnote 6 ] S. 1835, 73d Cong., 1st Sess. (1933); S. 3787, H. R. 12297, 74th Cong., 2d Sess. (1936); S. 3676, 75th Cong., 3d Sess. (1938); H. R. 6324, H. R. 4235, H. R. 4236, S. 915, S. 916, 76th Cong., 1st Sess. (1939); S. 674, S. 675, S. 918, H. R. 3464, H. R. 4238, H. R. 4782, 77th Cong., 1st Sess. (1941); H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944); H. R. 1203, S. 7, 79th Cong., 1st Sess. (1945).
[ Footnote 7 ] E. g., Benjamin, Administrative Adjudication in the State of New York (1942); Tenth Biennial Report of the Judicial Council to the Governor and Legislature of California (1944). See also Fesler, The Independence of State Regulatory Agencies (1942); Handbook of the National Conference of Commissioners on Uniform State Laws, 226 et seq. (1943); 63 A. B. A. Rep. 623 (1938).
[ Footnote 8 ] Administrative Management in the Government of the United States, Report of the President's Committee on Administrative Management 37 (1937).
[ Footnote 9 ] The quoted statement is from President Roosevelt's message to Congress of December 18, 1940, vetoing H. R. 6324, the so-called Walter-Logan bill. H. R. Doc. No. 986, 76th Cong., 3d Sess., 3-4 (1940). The origin and orders leading to the creation of the Attorney General's Committee are set out in Appendix A of the Committee's Final Report, supra.
[ Footnote 10 ] S. 915, H. R. 6324, 76th Cong., 1st Sess. (1939).
[ Footnote 11 ] 86 Cong. Rec. 13942-3 (1940), reprinted in H. R. Doc. No. 986, 76th Cong., 3d Sess. (1940).
[ Footnote 12 ] 86 Cong. Rec. 13953 (1940).
[ Footnote 13 ] 86 Cong. Rec. at 13943; H. R. Doc. No. 986, supra, 4.
[ Footnote 14 ] These bills appear at pp. 192 and 217 of the Committee's Final Report, supra. The majority bill became S. 675, 77th Cong., 1st Sess. (1941) and the majority recommendation was embodied in S. 674, 77th Cong., 1st Sess. (1941).
[ Footnote 15 ] The hearings ran from April 2 to July 2, 1941, and, with an appendix, have been collected in four parts and over 1,600 pages. Hearings before Subcommittee of the Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. (1941).
[ Footnote 16 ] H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944).
[ Footnote 17 ] S. 7 and H. R. 1203, 79th Cong., 1st Sess. (1945).
[ Footnote 18 ] See H. R. Rep. No. 1980, 79th Cong., 2d Sess. 14-15 (1946); S. Rep. No. 752, 79th Cong., 1st Sess. 4-5 (1945), reprinted in S. Doc. No. 248, 79th Cong., 2d Sess., at 233, 248-249, and 185, 190-191, respectively.
[ Footnote 19 ] S. Rep. No. 752, 79th Cong., 1st Sess. 37-45 (1945); 92 Cong. Rec. App. A-2982-5 (1946).
[ Footnote 20 ] 92 Cong. Rec. 2167 (1946) (passage by the Senate); 92 Cong. Rec. 5668 (1946) (amended version passed by House); 92 Cong. Rec. 5791 (1946) (House version agreed to by Senate); 92 Cong. Rec. 6706 (1946) (approved by the President).
[ Footnote 21 ] H. R. Rep. No. 1980, 79th Cong., 2d Sess. 16 (1946); Final Report of the Attorney General's Committee on Administrative Procedure, 20 (1941); McFarland, Analysis of the Federal Administrative Procedure Act, in Federal Administrative Procedure Act and the Administrative Agencies 16, 22 (N. Y. U. 1947). See also Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H. R. 4236, H. R. 6198, and H. R. 6324, 76th Cong., 1st Sess. 14, 31 (1939); S. Rep. No. 442, 76th Cong., 1st Sess. 9 (1939); H. R. Rep. No. 1149, 76th Cong., 1st Sess. 2-3 (1939); S. Doc. No. 71, 76th Cong., 1st Sess. 5 (1939).
[ Footnote 22 ] 81 Cong. Rec. 187, 191 (1937).
[ Footnote 23 ] See n. 14, supra.
[ Footnote 24 ] See 8 C. F. R. 150.1 et seq.
[ Footnote 25 ] The initial step in a deportation case is the investigation of an alien by an immigrant inspector. 8 C. F. R. 150.1. This is followed by issuance of a warrant of arrest, 8 C. F. R. 150.2-150.4, and incarceration, unless the alien is released under bond. 8 C. F. R. 150.5. The formal hearing follows.
[ Footnote 26 ] Eisler v. Clark (D. D.C. 1948), 77 F. Supp. 610.
[ Footnote 27 ] S. 2755 and H. R. 6652, 80th Cong., 2d Sess. (1948).
[ Footnote 28 ] S. Rep. No. 1588, H. R. Rep. No. 2140, 80th Cong., 2d Sess. (1948).
[ Footnote 29 ] Section 19 (a) of the Immigration Act of February 5, 1917, 39 Stat. 874, 889, as amended, 8 U.S.C. 155 (a), provides in part: ". . . any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. . . . In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final." See Note 33, infra.
[ Footnote 30 ] The Japanese Immigrant Case, 189 U.S. 86, 100 , 101; Kwock Jan Fat v. White, 253 U.S. 454, 459 , 464; Bridges v. Wixon, 326 U.S. 135, 160 (concurring opinion).
[ Footnote 31 ] Section 301 of the bills proposed in the majority and minority recommendations of the Final Report of the Attorney General's Committee on Administrative Procedure, pp. 195, 232-233.
[ Footnote 32 ] Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. 1456 (1941).
[ Footnote 33 ] The original Act, 39 Stat. 886, reads "under this Act," although in the codification, 8 U.S.C. 152, it reads "under this section." The former is controlling. 1 U.S.C. (Supp. II, 1949) 112, 204 (a).
[ Footnote * ] [For order modifying the judgment, see post, p. 908.]
MR. JUSTICE REED, dissenting.
The Court, it seems to me, has disregarded a congressional exemption of certain agencies, including the Immigration and Naturalization Service, from some of the requirements of the Administrative Procedure Act. Such judicial intrusion into the legislative domain justifies a protest. It may be useful to call attention to the necessity of recognizing specific exceptions to general rules. This protest is rested on the ground that immigrant inspectors performing duties under 16 of the Immigration Act are within the exception provided by 7 (a) of the Administrative Procedure Act. The Court's opinion discusses this point under subdivision V. The sections are there set out and can be examined by the reader.
In this case no one questions the constitutionality of the hearing Wong received before the immigrant inspector, with administrative review by the Commissioner and the Board of Immigration Appeals. The question on which I disagree with the Court is whether the Administrative Procedure Act permits an inspector of the Immigration and Naturalization Service to serve as a presiding officer at a deportation hearing. [339 U.S. 33, 54]
Section 7 (a) of the Administrative Procedure Act provides that the official presiding at the taking of evidence shall be an agency, an agency member or an examiner appointed under that Act. There is an exception to this requirement. It reads as follows:
Under 16 of the Immigration Act, 39 Stat. 874, 885, the
The reason for the exception in 7 (a) was not spelled out in the legislative history or in the Act itself. The [339 U.S. 33, 55] exception may have been made to retain smoothness of operation in the several agencies where there were officials specially provided for by statute or designated pursuant to a statute. When making exceptions from the requirements as to separation of the investigatory and adjudicatory functions, it was natural to include officers specially designated by statute to sit in judgment. Agency members are excluded from these requirements of the Administrative Procedure Act. They, too, have investigatory and adjudicatory duties. Since the members of the agency and the statutorily designated officers were specially selected for the functions they were to perform, Congress probably reposed confidence in their experience and expertness. It doubtless did not wish to disorganize administration until time showed whether that confidence was well placed. 1
Since the Court does not accept my view of the reach of 7 (a), it would be useless to undertake an analysis of the other questions presented by the petition for certiorari.
[ Footnote 1 ] Thus the congressional committee warned that should the exception "be a loophole for avoidance of the examiner system in any real sense, corrective legislation would be necessary. That provision is not intended to permit agencies to avoid the use of examiners but to preserve special statutory types of hearing officers who contribute something more than examiners could contribute and at the same time assure the parties fair and impartial procedure." S. Doc. No. 248, 79th Cong., 2d Sess., p. 216. [339 U.S. 33, 56]