372 U.S. 144 (1963)

KENNEDY, ATTORNEY GENERAL,
v.
MENDOZA-MARTINEZ.

No. 2.

Supreme Court of United States.

Argued October 10-11, 1961. Restored to the calendar for reargument April 2, 1962. Reargued December 4, 1962. Decided February 18, 1963.^[*] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA.

*145 Bruce J. Terris reargued the cause for appellant in No. 2. J. William Doolittle reargued the cause for appellant in No. 3. On the briefs in both cases were Solicitor General *146 Cox, Assistant Attorney General Miller, Oscar H. Davis, Beatrice Rosenberg and Jerome M. Feit.

Thomas R. Davis reargued the cause for appellee in No. 2. With him on the brief was John W. Willis.

Leonard B. Boudin reargued the cause for appellee in No. 3. With him on the brief was Victor Rabinowitz.

Jack Wasserman, David Carliner, Rowland Watts, Stephen J. Pollak and Osmond K. Fraenkel filed briefs for the American Civil Liberties Union, as amicus curiae, urging affirmance in both cases.

Milton V. Freeman, Robert E. Herzstein, Horst Kurnik and Charles A. Reich filed a brief, urging affirmance in No. 3, for Angelika Schneider, as amicus curiae.

MR. JUSTICE GOLDBERG delivered the opinion of the Court.

We are called upon in these two cases to decide the grave and fundamental problem, common to both, of the constitutionality of Acts of Congress which divest an American of his citizenship for "[d]eparting from or remaining outside of the jurisdiction of the United States in time of war or . . . national emergency for the purpose of evading or avoiding training and service" in the Nation's armed forces.^[1]

*147 I. THE FACTS.

A. Mendoza-Martinez—No. 2.

The facts of both cases are not in dispute. Mendoza-Martinez, the appellee in No. 2, was born in this country in 1922 and therefore acquired American citizenship by birth. By reason of his parentage, he also, under Mexican law, gained Mexican citizenship, thereby possessing dual nationality. In 1942 he departed from this country and went to Mexico solely, as he admits, for the purpose of evading military service in our armed forces. He concedes that he remained there for that sole purpose until November 1946, when he voluntarily returned to this country. In 1947, in the United States District Court for the Southern District of California, he pleaded guilty to and was convicted of evasion of his service obligations in violation of § 11 of the Selective Training and Service Act of 1940.^[2] He served the imposed sentence of a year and a day. For all that appears in the record, he was, upon his release, allowed to reside undisturbed in this country until *148 1953, when, after a lapse of five years, he was served with a warrant of arrest in deportation proceedings. This was premised on the assertion that, by remaining outside the United States to avoid military service after September 27, 1944, when § 401 (j) took effect, he had lost his American citizenship. Following hearing, the Attorney General's special inquiry officer sustained the warrant and ordered that Mendoza-Martinez be deported as an alien. He appealed to the Board of Immigration Appeals of the Department of Justice, which dismissed his appeal.

Thereafter, Mendoza-Martinez brought a declaratory judgment action in the Federal District Court for the Southern District of California, seeking a declaration of his status as a citizen, of the unconstitutionality of § 401 (j), and of the voidness of all orders of deportation directed against him. A single-judge District Court in an unreported decision entered judgment against Mendoza-Martinez in 1955, holding that by virtue of § 401 (j), which the court held to be constitutional, he had lost his nationality by remaining outside the jurisdiction of the United States after September 27, 1944. The Court of Appeals for the Ninth Circuit affirmed the judgment, 238 F. 2d 239. This Court, in 1958, Mendoza-Martinez v. Mackey, 356 U. S. 258, granted certiorari, vacated the judgment, and remanded the cause to the District Court for reconsideration in light of its decision a week earlier in Trop v. Dulles, 356 U. S. 86.

On September 24, 1958, the District Court announced its new decision, also unreported, that in light of Trop § 401 (j) is unconstitutional because not based on any "rational nexus . . . between the content of a specific power in Congress and the action of Congress in carrying that power into execution." On direct appeal under 28 U. S. C. § 1252, this Court noted probable jurisdiction, 359 U. S. 933, and then of its own motion remanded the cause, this time with permission to the parties to amend *149 the pleadings to put in issue the question of whether the facts as determined on the draft-evasion conviction in 1947 collaterally estopped the Attorney General from now claiming that Mendoza-Martinez had lost his American citizenship while in Mexico. Mackey v. Mendoza-Martinez, 362 U. S. 384.

The District Court on remand held that the Government was not collaterally estopped because the 1947 criminal proceedings entailed no determination of Mendoza-Martinez' citizenship. The court, however, reaffirmed its previous holding that § 401 (j) is unconstitutional, adding as a further basis of invalidity that § 401 (j) is "essentially penal in character and deprives the plaintiff of procedural due process. . . . [T]he requirements of procedural due process are not satisfied by the administrative hearing of the Immigration Service nor in this present proceedings."^[3] The Attorney General's current appeal is from this decision. Probable jurisdiction was noted on February 20, 1961, 365 U. S. 809. The case was argued last Term, and restored to the calendar for reargument this Term, 369 U. S. 832.

B. Cort—No. 3.

Cort, the appellee in No. 3, is also a native-born American, born in Boston in 1927. Unlike Mendoza-Martinez, he has no dual nationality. His wife and two young children are likewise American citizens by birth. Following receipt of his M. D. degree from the Yale University School of Medicine in 1951, he went to England for the purpose of undertaking a position as a Research Fellow at Cambridge University. He had earlier registered in timely and proper fashion for the draft and shortly before *150 his departure supplemented his regular Selective Service registration by registering under the newly enacted Doctors Draft Act.^[4] In late 1951 he received a series of letters from the American Embassy in London instructing him to deliver his passport to it to be made "valid only for return to the United States." He did not respond to these demands because, he now says in an affidavit filed in the trial court in this proceeding, "I believed that they were unlawful and I did not wish to subject myself to this and similar forms of political persecution then prevalent in the United States. . . . I was engaged in important research and teaching work in physiology and I desired to continue earning a livelihood for my family." Cort had been a member of the Communist Party while he was a medical student at Yale from 1946 to 1951, except for the academic year 1948-1949 when he was in England. In late 1952, while still in England at Cambridge, he accepted a teaching position for the following academic year at Harvard University Medical School. When, however, the school discovered through further correspondence that he had not yet fulfilled his military obligations, it advised him that it did not regard his teaching position as essential enough to support his deferment from military service in order to enter upon it. Thereafter, his local draft board in Brookline, Massachusetts, notified him in February 1953 that his request for deferment was denied and that he should report within 30 days for a physical examination either in Brookline or in Frankfurt, Germany. On June 4 and on July 3 the draft board again sent Cort notices to report for a physical examination, the first notice for examination on July 1 in Brookline, and the second for examination within 30 days in Frankfurt. He did not appear at either place, and the board on August 13 ordered him to report for induction on September 14, *151 1953. He did not report, and consequently he was indicted in December 1954 for violation of § 12 (a) of the Selective Service Act of 1948^[5] by reason of his failure to report for induction. This indictment is still outstanding. His complaint in this action states that he did not report for induction because he believed "that the induction order was not issued in good faith to secure his military services, that his past political associations and present physical disabilities made him ineligible for such service, and that he was being ordered to report back to the United States to be served with a Congressional committee subpoena or indicted under the Smith Act . . . ." Meanwhile, the British Home Office had refused to renew his residence permit, and in mid-1954 he and his family moved to Prague, Czechoslovakia, where he took a position as Senior Scientific Worker at the Cardiovascular Institute. He has lived there since.

In April 1959, his previous United States passport having long since expired, Cort applied at the American Embassy in Prague for a new one. His complaint in this action states that he wanted the passport "in order to return to the United States with his wife and children so that he might fulfill his obligations under the Selective Service laws and his wife might secure medical treatment for multiple sclerosis." Mrs. Cort received a passport and came to this country temporarily in late 1959, both for purposes of medical treatment and to facilitate arrangements for her husband's return. Cort's application, however, was denied on the ground that he had, by his failure to report for induction on September 14, 1953, as ordered, remained outside the country to avoid military service and thereby automatically forfeited his American citizenship by virtue of § 349 (a) (10) of the Immigration *152 and Nationality Act of 1952, which had superseded § 401 (j). The State Department's Passport Board of Review affirmed the finding of expatriation, and the Department's legal adviser affirmed the decision. Cort, through counsel, thereupon brought this suit in the District Court for the District of Columbia for a declaratory judgment that he is a citizen of the United States, for an injunction against enforcement of § 349 (a) (10) because of its unconstitutionality, and for an order directing revocation of the certificate of loss of nationality and issuance of a United States passport to him. Pursuant to Cort's demand, a three-judge court was convened. The court held that he had remained outside the United States to evade military service, but that § 349 (a) (10) is unconstitutional because "We perceive no substantial difference between the constitutional issue in the Trop case and the one facing us." It therefore concluded that Cort is a citizen of this country and enjoined the Secretary of State from withholding a passport from Cort on the ground that he is not a citizen and from otherwise interfering with his rights of citizenship. Cort v. Herter, 187 F. Supp. 683.

The Secretary of State appealed directly to this Court, 28 U. S. C. §§ 1252, 1253, which postponed the question of jurisdiction to the hearing of the case on the merits. 365 U. S. 808. The preliminary question of jurisdiction was affirmatively resolved last Term, Rusk v. Cort, 369 U. S. 367, leaving the issue of the validity of § 349 (a) (10) for decision now, after reargument. 369 U. S., at 380.

Before we consider the essential question in these cases, the constitutionality of §§ 401 (j) and 349 (a) (10), two preliminary issues peculiar to No. 2 must be discussed.

II. THE THREE-JUDGE COURT ISSUE.

At the threshold in Mendoza-Martinez' case is the question whether the proceeding should have been heard by a three-judge District Court convened pursuant to 28 *153 U. S. C. § 2282, which requires such a tribunal as a prerequisite to the granting of any "interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States . . . ." If § 2282 governs this litigation, we are once again faced with the prospect of a remand and a new trial, this time by a three-judge panel. We are, however, satisfied that the case was properly heard by a single district judge, as both parties urge.

In the complaint under which the case was tried the first and second times, Mendoza-Martinez asked for no injunctive relief, and none was granted. In the amended complaint which he filed in 1960 to put in issue the question of collateral estoppel, he added a prayer asking the court to adjudge "that defendants herein are enjoined and restrained henceforth from enforcing" all deportation orders against him. However, it is abundantly clear from the amended trial stipulation which was entered into by the parties and approved by the judge to "govern the course of the trial," that the issues were framed so as not to contemplate any injunctive relief. The first question was articulated only in terms of whether the Government was "herein estopped by reason of the indictment and conviction of plaintiff for [draft evasion] . . . from denying that the plaintiff is now a national and citizen of the United States." The second question asked only for a declaration as to whether § 401 (j) was "unconstitutional, either on its face or as applied to the plaintiff herein." The conclusion that no request for injunctive relief nor even any contemplation of it attended the case as it went to trial is borne out by the total lack of reference to injunctive relief in the District Court's memorandum opinion, findings of fact and conclusions of law, and judgment. See 192 F. Supp. 1. The relief granted was merely a declaration that the 1944 Amendment "is *154 unconstitutional, both on its face and as applied to the plaintiff herein," and "[t]hat the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States." Thus, despite the amendment to Mendoza-Martinez' complaint before the third trial, it is clear that neither the parties nor the judge at any relevant time regarded the action as one in which injunctive relief was material to the disposition of the case. Since no injunction restraining the enforcement of § 401 (j) was at issue, § 2282 was not in terms applicable to require the convening of a three-judge District Court.

Whether an action solely for declaratory relief would under all circumstances be inappropriate for consideration by a three-judge court we need not now decide, for it is clear that in the present case the congressional policy underlying the statute was not frustrated by trial before a single judge. The legislative history of § 2282 and of its complement, § 2282,^[6] requiring three judges to hear injunctive suits directed against federal and state legislation, respectively, indicates that these sections were enacted to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order. Section 2281 "was a means of protecting the increasing body of state legislation regulating economic enterprise from invalidation by a conventional suit in equity. . . . The crux of the business is procedural protection against an improvident state-wide doom by a federal court of a state's legislative policy. This was the aim of Congress. . . ." Phillips v. United States, 312 U. S. 246, *155 250-251. Repeatedly emphasized during the congressional debates on § 2282 were the heavy pecuniary costs of the unforeseen and debilitating interruptions in the administration of federal law which could be wrought by a single judge's order, and the great burdens entailed in coping with harassing actions brought one after another to challenge the operation of an entire statutory scheme, wherever jurisdiction over government officials could be acquired, until a judge was ultimately found who would grant the desired injunction. 81 Cong. Rec. 479-481, 2142-2143 (1937).

The present action, which in form was for declaratory relief and which in its agreed substance did not contemplate injunctive relief, involves none of the dangers to which Congress was addressing itself. The relief sought and the order entered affected an Act of Congress in a totally noncoercive fashion. There was no interdiction of the operation at large of the statute. It was declared unconstitutional, but without even an injunctive sanction against the application of the statute by the Government to Mendoza-Martinez. Pending review in the Court of Appeals and in this Court, the Government has been free to continue to apply the statute. That being the case, there is here no conflict with the purpose of Congress to provide for the convocation of a three-judge court whenever the operation of a statutory scheme may be immediately disrupted before a final judicial determination of the validity of the trial court's order can be obtained. Thus there was no reason whatever in this case to invoke the special and extraordinary procedure of a three-judge court. Compare Schneider v. Rusk, post, p. 224, decided this day.

III. THE COLLATERAL-ESTOPPEL ISSUE.

Mendoza-Martinez' second amended complaint, filed in 1960 pursuant to the suggestion of this Court earlier that year, charged that "the government of the United States *156 has admitted the fact of his United States citizenship by virtue of the indictment and judgment of conviction [in 1947 for draft evasion] . . . and is therefore collaterally estopped now to deny such citizenship . . . ." The District Court rejected this assertion. Mendoza-Martinez renews it here as an alternative ground for upholding the judgment entered below "That the plaintiff is now, and ever since the date of his birth has been, a national and citizen of the United States." 192 F. Supp., at 3.

We too reject Mendoza-Martinez' contention on this point. His argument, stated more fully, is as follows: The Selective Training and Service Act of 1940 applies only to citizens and resident aliens. Both the indictment and the judgment spoke in terms of his having remained in Mexico for the entire period from November 15, 1942, until November 1, 1946, when he returned to this country.^[7]*157 For the period from September 27, 1944, when § 401 (j) became effective, until November 1, 1946, he could not have been in violation of our draft laws unless he remained a citizen of the United States, since the draft laws do not apply to nonresident aliens. Therefore, he concludes, the Government must be taken to have admitted that he did not lose his citizenship by remaining outside the country after September 27, 1944, because it charged him with draft evasion for that period as well as for the period preceding that date.

It is true that "as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered," Cromwell v. County of Sac, 94 U. S. 351, 353, the findings in a prior criminal proceeding may estop a party in a subsequent civil action, Emich Motors Corp. v. General Motors Corp., 340 U. S. 558, 568-569, and that the United States may be estopped to deny even an erroneous prior determination of status, United States v. Moser, 266 U. S. 236. However, Mendoza-Martinez' citizenship status was not at issue in his trial for draft evasion. Putting aside the fact that he pleaded guilty, which in itself may support the conclusion that his citizenship status was not litigated and thereby without more preclude his assertion of estoppel,^[8] the basic flaw in his argument is in the assertion that he was charged with a continuing violation of the draft laws while he remained in Mexico, particularly after September 27, 1944, the date on which § 401 (j) became effective. He was in fact charged with a violation "on or about November 15, 1942," because he "did knowingly evade service . . . in that he did knowingly depart from *158 the United States and go to a foreign country, namely: Mexico, for the purpose of evading service . . . ." This constituted the alleged violation. The additional language that he "did there remain until on or about November 1, 1946," was merely surplusage in relation to the substantive offense, although it might, for example, serve a purpose in relation to problems connected with the tolling of the statute of limitations. No language appears charging the elements of violation—knowledge and purpose to evade—in connection with it. The only crime charged is what happened "on or about November 15, 1942," and conviction thereon, even if it had entailed a finding as to Mendoza-Martinez' citizenship on that date,^[9] in nowise estopped the Government with reference to his status after September 27, 1944.

The trial court's judgment was worded no differently. Mendoza-Martinez was convicted of:

"Having on or about November 15th 1942, knowingly departed from the United States to Mexico, for the purpose of evading service in the land or naval forces of the United States and having remained there until on or about November 1st 1946."

Again, the language relating to the time during which Mendoza-Martinez remained in Mexico was not tied to the words stating knowledge and purpose to evade service. Thus, the conviction entailed no actual or necessary finding about Mendoza-Martinez' citizenship status between September 27, 1944, and November 1, 1946, and the Government was not estopped from denying his citizenship in the present proceedings.

*159 IV. THE CONSTITUTIONAL ISSUES.

A. Basic Principles.

Since the validity of an Act of Congress is involved, we begin our analysis mindful that the function we are now discharging is "the gravest and most delicate duty that this Court is called upon to perform." Blodgett v. Holden, 275 U. S. 142, 148 (separate opinion of Holmes, J.). This responsibility we here fulfill with all respect for the powers of Congress, but with recognition of the transcendent status of our Constitution.

We deal with the contending constitutional arguments in the context of certain basic and sometimes conflicting principles. Citizenship is a most precious right. It is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms.^[10] The Constitution is silent about the permissibility of involuntary forfeiture of citizenship rights.^[11] While it confirms citizenship rights, plainly there are imperative obligations of citizenship, performance of which Congress in the exercise of its powers may constitutionally exact. One of the most important of these is to serve the country in time of war and national emergency. The powers of Congress to require military service for the common defense are broad and far-reaching,^[12]*160 for while the Constitution protects against invasions of individual rights, it is not a suicide pact. Similarly, Congress has broad power under the Necessary and Proper Clause to enact legislation for the regulation of foreign affairs. Latitude in this area is necessary to ensure effectuation of this indispensable function of government.^[13]

These principles, stemming on the one hand from the precious nature of the constitutionally guaranteed rights of citizenship, and on the other from the powers of Congress and the related obligations of individual citizens, are urged upon us by the parties here. The Government argues that §§ 401 (j) and 349 (a) (10) are valid as an exercise of Congress' power over foreign affairs, of its was power, and of the inherent sovereignty of the Government. Appellees urge the provisions' invalidity as not within any of the powers asserted, and as imposing a cruel and unusual punishment.

We recognize at the outset that we are confronted here with an issue of the utmost import. Deprivation of citizenship —particularly American citizenship, which is "one of the most valuable rights in the world today," Report of the President's Commission on Immigration and Naturalization (1953), 235—has grave practical consequences. An expatriate who, like Cort, had no other nationality becomes a stateless person—a person who not only has no rights as an American citizen, but no membership in any national entity whatsoever. "Such individuals as do not possess any nationality enjoy, in general, no protection whatever, and if they are aggrieved by a State they have no means of redress, since there is no State which is competent to take up their case. As far as the Law of Nations *161 is concerned, there is, apart from restraints of morality or obligations expressly laid down by treaty . . . no restriction whatever to cause a State to abstain from maltreating to any extent such stateless individuals." 1 Oppenheim, International Law (8th ed., Lauterpacht, 1955), § 291, at 640.^[14] The calamity is "[n]to the loss of specific rights, then, but the loss of a community willing and able to guarantee any rights whatsoever . . . ." Arendt, The Origins of Totalitarianism (1951), 294. The stateless person may end up shunted from nation to nation, there being no one obligated or willing to receive him,^[15] or, as in Cort's case, may receive the dubious sanctuary of a Communist regime lacking the essential liberties precious to American citizenship.^[16]

*162 B. The Perez and Trop Cases.

The basic principles here involved, the gravity of the issue, and the arguments bearing upon Congress' power to forfeit citizenship were considered by the Court in relation to different provisions of the Nationality Act of 1940 in two cases decided on the same day less than five years ago: Perez v. Brownell, 356 U. S. 44, and Trop v. Dulles, 356 U. S. 86.

In Perez, § 401 (e), which imposes loss of nationality for "[v]oting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory," was upheld by a closely divided Court as a constitutional exercise of Congress' power to regulate foreign affairs. The Court reasoned that since withdrawal of citizenship of Americans who vote in foreign elections is reasonably calculated to effect the avoidance of embarrassment in the conduct of foreign relations, such withdrawal is within the power of Congress, acting under the Necessary and Proper Clause. Since the Court sustained the application of § 401 (e) to denationalize Perez, it did not have to deal with § 401 (j), upon which the Government had also relied, and it expressly declined to rule on the constitutionality of that section, 356 U. S., at 62. There were three opinions written in dissent. The principal one, that of THE CHIEF JUSTICE, recognized "that citizenship may not only be voluntarily renounced through exercise of the right of expatriation but also by other actions in derogation of undivided allegiance to this country," id., at 68, but concluded that "[t]he mere act of voting in a foreign election, however, without regard to the circumstances attending *163 the participation, is not sufficient to show a voluntary abandonment of citizenship," id., at 78.

In Trop, § 401 (g), forfeiting the citizenship of any American who is guilty of "[d]eserting the military or naval forces of the United States in time of war, provided he is convicted thereof by court martial and as the result of such conviction is dismissed or dishonorably discharged. . . ," was declared unconstitutional. There was no opinion of the Court. THE CHIEF JUSTICE wrote an opinion for four members of the Court, concluding that § 401 (g) was invalid for the same reason that he had urged as to § 401 (e) in his dissent in Perez, and that it was also invalid as a cruel and unusual punishment imposed in violation of the Eighth Amendment. JUSTICE BRENNAN conceded that it is "paradoxical to justify as constitutional the expatriation of the citizen who has committed no crime by voting in a Mexican political election, yet find unconstitutional a statute which provides for the expatriation of a soldier guilty of the very serious crime of desertion in time of war," 356 U. S., at 105. Notwithstanding, he concurred because "the requisite rational relation between this statute and the war power does not appear . . . ," id., at 114. Justice Frankfurter, joined by three other Justices, dissented on the ground that § 401 (g) did not impose punishment at all, let alone cruel and unusual punishment, and was within the war powers of Congress.

C. Sections 401 (j) and 349 (a) (10) as Punishment.

The present cases present for decision the constitutionality of a section not passed upon in either Perez or Trop—§ 401 (j), added in 1944, and its successor and present counterpart, § 349 (a) (10) of the Immigration and Nationality Act of 1952. We have come to the conclusion that there is a basic question in the present cases, *164 the answer to which obviates a choice here between the powers of Congress and the constitutional guarantee of citizenship. That issue is whether the statutes here, which automatically—without prior court or administrative proceedings —impose forfeiture of citizenship, are essentially penal in character, and consequently have deprived the appellees of their citizenship without due process of law and without according them the rights guaranteed by the Fifth and Sixth Amendments, including notice, confrontation, compulsory process for obtaining witnesses, trial by jury, and assistance of counsel. This issue was not relevant in Trop because, in contrast to §§ 401 (j) and 349 (a) (10), § 401 (g) required conviction by court-martial for desertion before forfeiture of citizenship could be inflicted. In Perez the contention that § 401 (e) was penal in character was impliedly rejected by the Court's holding, based on legislative history totally different from that underlying §§ 401 (j) and 349 (a) (10), that voting in a political election in a foreign state "is regulable by Congress under its power to deal with foreign affairs." 356 U. S., at 59. Compare Dent v. West Virginia, 129 U. S. 114; Hawker v. New York, 170 U. S. 189; Flemming v. Nestor, 363 U. S. 603. Indeed, in Trop THE CHIEF JUSTICE observed that "Section 401 (j) decrees loss of citizenship without providing any semblance of procedural due process whereby the guilt of the draft evader may be determined before the sanction is imposed . . . ," 356 U. S., at 94, and Justice Frankfurter in dissent alluded to the due process overtones of the requirement in § 401 (g) of prior conviction for desertion by court-martial, id., at 116-117.

It is fundamental that the great powers of Congress to conduct war and to regulate the Nation's foreign relations are subject to the constitutional requirements of due *165 process.^[17] The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action. "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." Ex parte Milligan, 4 Wall. 2, 120-121.^[18] The rights guaranteed by the Fifth and Sixth Amendments are "Preserved to every one accused of crime who is not attached to the army, or navy, or militia in actual service." Id., at 123.^[19] "[I]f society is disturbed by civil commotion—if the passions of men are aroused and the restraints of law weakened, if not disregarded —these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution." Id., at 124.

We hold §§ 401 (j) and 349 (a) (10) invalid because in them Congress has plainly employed the sanction of deprivation of nationality as a punishment—for the offense of leaving or remaining outside the country to evade military *166 service—without affording the procedural safeguards guaranteed by the Fifth and Sixth Amendments.^[20] Our forefathers "intended to safeguard the people of this country from punishment without trial by duly constituted courts. . . . 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, [and] must be clearly informed of the charge against him. . . ." United States v. Lovett, 328 U. S. 303, 317. See also Chambers v. Florida, 309 U. S. 227, 235-238.

As the Government concedes, §§ 401 (j) and 349 (a) (10) automatically strip an American of his citizenship, with concomitant deprivation "of all that makes life worth living." Ng Fung Ho v. White, 259 U. S. 276, 284-285, whenever a citizen departs from or remains outside the jurisdiction of this country for the purpose of evading his military obligations. Conviction for draft evasion, as *167 Cort's case illustrates, is not prerequisite to the operation of this sanction.^[21] Independently of prosecution, forfeiture of citizenship attaches when the statutory set of facts develops. It is argued that the availability after the fact of administrative and judicial proceedings, including the machinery the Court approved last Term in Rusk v. Cort, 369 U. S. 367, to contest the validity of the sanction meets the measure of due process. But the legislative history and judicial expression with respect to every congressional enactment relating to the provisions in question dating back to 1865 establish that forfeiture of citizenship is a penalty for the act of leaving or staying outside the country to avoid the draft. This being so, the Fifth and Sixth Amendments mandate that this punishment cannot be imposed without a prior criminal trial and all its incidents, including indictment, notice, confrontation, jury trial, assistance of counsel, and compulsory process for obtaining witnesses. If the sanction these sections impose is punishment, and it plainly is, the procedural safeguards required as incidents of a criminal prosecution are lacking. We need go no further.

*168 The punitive nature of the sanction here is evident under the tests traditionally applied to determine whether an Act of Congress is penal or regulatory in character, even though in other cases this problem has been extremely difficult and elusive of solution. Whether the sanction involves an affirmative disability or restraint,^[22] whether it has historically been regarded as a punishment,^[23] whether it comes into play only on a finding of scienter,^[24] whether its operation will promote the traditional aims of punishment—retribution and deterrence,^[25] whether the behavior to which it applies is already a crime,^[26] whether an alternative purpose to which it may *169 rationally be connected is assignable for it,^[27] and whether it appears excessive in relation to the alternative purpose assigned^[28] are all relevant to the inquiry, and may often point in differing directions. Absent conclusive evidence of congressional intent as to the penal nature of a statute, these factors must be considered in relation to the statute on its face. Here, although we are convinced that application of these criteria to the face of the statutes supports the conclusion that they are punitive, a detailed examination along such lines is unnecessary, because the objective manifestations of congressional purpose indicate conclusively that the provisions in question can only be interpreted as punitive.^[29] A study of the history of the predecessor of § 401 (j), which "is worth a volume of logic," New York Trust Co. v. Eisner, 256 U. S. 345, 349, coupled with a reading of Congress' reasons for enacting § 401 (j), compels a conclusion that the statute's primary function is to serve as an additional penalty for *170 a special category of draft evader.^[30] Compare Trop v. Dulles, supra, 356 U. S., at 107-110 (BRENNAN, J., concurring).

1. The Predecessor Statute and Judicial Construction.

The subsections here in question have their origin in part of a Civil War "Act to amend the several Acts heretofore passed to provide for the Enrolling and Calling out the National Forces, and for other Purposes." Act of March 3, 1865, 13 Stat. 487. Section 21 of that Act, dealing with deserters and draft evaders, was in terms punitive, providing that "in addition to the other lawful penalties of the crime of desertion," persons guilty thereof "shall be deemed and taken to have voluntarily relinquished and forfeited their rights of citizenship and their rights to become citizens . . . and all persons who, being duly enrolled, shall depart the jurisdiction of the district in which he is enrolled, or go beyond the limits of the United States, with intent to avoid any draft into the *171 military or naval service, duly ordered, shall be liable to the penalties of this section."^[31]

The debates in Congress in 1865 confirm that the use of punitive language in § 21 was not accidental. The section as originally proposed inflicted loss of rights of citizenship only on deserters. Senator Morrill of Maine proposed amending the section to cover persons who leave the country to avoid the draft, stating, "I do not see why the same principle should not extend to those who leave the country to avoid the draft." Cong. Globe, 38th Cong., 2d Sess. 642 (1865). This "same principle" was punitive, because Senator Morrill was also worried that insofar as the section as originally proposed "provides for a penalty" to be imposed on persons who had theretofore deserted, there was question "whether it is not an ex post facto law, whether it is not fixing a penalty for an act already done." Ibid. Senator Johnson of Maryland attempted to allay Senator Morrill's concern by explaining that

"the penalties are not imposed upon those who have deserted, if nothing else occurs, but only on those who have deserted and who shall not return within sixty days. The crime for which the punishment is inflicted is made up of the fact of an antecedent desertion, and a failure to return within sixty days. It is clearly within the power of Congress." Ibid.

This explanation satisfied the Senate sufficiently so that they accepted the section, with Senator Morrill's amendment, although Senator Hendricks of Indiana made one last speech in an effort to convince his colleagues of the bill's ex post facto nature and, even apart from that, of the excessiveness of the punishment, particularly as applied to draft evaders:

"It seems to me to be very clear that this section proposes to punish desertions which have already *172 taken place, with a penalty which the law does not already prescribe. In other words it is an ex post facto criminal law which I think we cannot pass. . . . One of the penalties known very well to the criminal laws of the country is the denial of the right of suffrage and the right to hold offices of trust or profit.

"It seems to me this objection to the section is very clear, but I desire to suggest further that this section punishes desertions that may hereafter take place in the same manner, and it is known to Senators that one desertion recently created is not reporting when notified of the draft. . . . I submit to Senators that it is a horrible thing to deprive a man of his citizenship, of that which is his pride and honor, from the mere fact that he has been unable to report upon the day specified after being notified that he has been drafted. Certainly the punishment for desertion is severe enough. It extends now from the denial of pay up to death; that entire compass is given for the punishment of this offense. Why add this other? It cannot do any good." Id., at 643.

In the House, the motion of New York's Representative Townsend to strike the section as a "despotic measure" which would "have the effect to deprive fifty thousand, and I do not know but one hundred thousand, people of their rights and privileges," was met by the argument of Representative Schenck of Ohio, the Chairman of the Military Committee, that "Here is a penalty that is lawful, wise, proper, and that should be added to the other lawful penalties that now exist against deserters." Id., at 1155. After Representative Wilson of Iowa proposed an amendment, later accepted and placed in the enacted version of the bill, extending the draft-evasion portion to apply to persons leaving "the district in which they are enrolled" in addition to those leaving the country, Representative J. C. Allen of Illinois raised the ex post fact