POLITICAL ACTIVITY, AMBASSADORS AND MINISTERS

Section 9 (a) of the Hatch Act does not prohibit ambassadors and ministers from taking an active part in political campaigns.

The SECRETARY OF STATE.

OCTOBER 19, 1940.

MY DEAR MR. SECRETARY: Reference is made to your letter of October 17, 1940, requesting my opinion whether American ambassadors and ministers are prohibited by section 9 (a) of the act of August 2, 1939, 53 Stat. 1147, 1148, as amended by the act of July 19, 1940, c. 640, 54 Stat. 767 (which statute is generally known as the Hatch Act), from taking an active part in the present political campaign by making speeches in favor of the election of one of the present candidates for President.

The pertinent provisions of section 9 (a) of the Hatch Act read as follows:

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"No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. For the purposes of this section the term 'officer' or 'employee' shall not be construed to include (1) the President and Vice President of the United States; (2) persons whose compensation is paid from the appropriation for the office of the President; (3) heads and assistant heads of executive departments; (4) officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers or in the Nation-wide administration of Federal laws."

Ambassadors and ministers are, of course, "appointed by the President, by and with the advice and consent of the Senate." Also, it is well known that, as stated in your letter, "while ambassadors and ministers ordinarily act under instructions from the Department [of State], they are frequently required to act without instructions ticularly * in situations which do not permit them to await instructions. In many other instances they are given instructions to act or not to act within their discretion, depending upon their best judgment in the light of existing

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situations. They likewise make recommendations to the Department on matters of policy. Thus, they actually participate in the determination of policy."

Moreover, under a well established rule of statutory construction the clause numbered (4) of section 9 (a), exempting from the term "officer" or "employee" "officers who are appointed by the President, by and with the advice and consent of the Senate, and who determine policies to be pursued by the United States in its relations with foreign powers,' must be given some application. Such application, if made, must include ambassadors and ministers, since the Secretary of State, the Under Secretary of State, and the Assistant Secretaries of State, are embraced within the clause numbered (3) and reading "heads and assistant heads of executive departments."

For the reasons given it is my opinion that ambassadors and ministers do not fall within the class of officers and employees who are prohibited by section 9 (a) of the Hatch Act from taking "any active part in political management or in political campaigns."

Respectfully,

ROBERT H. JACKSON.

IMMIGRATION-ADMISSION OF PACIFISTS

There is no statutory authority for denying an immigration visa to an alien because he is a member of a sect of extreme pacifists who refuse for religious and conscientious reasons to support any kind of war measures.

The provision in the immigration laws concerning exclusion of aliens ineligible to citizenship does not apply to disabilities that are removable and not necessarily permanent.

The act of May 22, 1918, as extended by the act of March 2, 1921, is no longer applicable with respect to aliens who seek admission as immigrants.

The SECRETARY OF STATE.

NOVEMBER 22, 1940.

MY DEAR MR. SECRETARY: Reference is made to your letter of October 4, 1940, requesting my opinion whether there is lawful authority for the denial of immigration visas to members of the sect known as Hutterian Brothers, who are

extreme pacifists and who, because of their religious belief and teaching, refuse to support war or war measures.

The only ground suggested as a basis for denying immigration visas to the aliens involved is that they belong to the sect known as Hutterian Brothers, which advocates and teaches extreme pacifism and opposition to all war and all war measures; and that as members of such sect they both practice and teach the tenets of that sect, including extreme pacifism and opposition to war and war measures. It appears that in all other respects members of this sect are law abiding and peaceable and readily conform their conduct to the requirements of orderly government.

Authority to deny immigration visas is contained in section 2 (f) of the Immigration Act of 1924 (43 Stat. 153), which provides in pertinent part (p. 154):

"No immigration visa shall be issued to an immigrant if it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that the immigrant is inadmissable to the United States under the immigration laws, nor shall such immigration visa be issued if the consular officer knows or has reason to believe that the immigrant is inadmissible to the United States under the immigration laws."

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The act of May 22, 1918, as extended in part by the act of March 2, 1921, has also been suggested as authority for denying immigration visas to those aliens. The act of May 22, 1918, 40 Stat. 559, reads in pertinent part:

"That when the United States is at war, if the President shall find that the public safety requires that restrictions and prohibitions in addition to those provided otherwise than by this act be imposed upon the departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or Congress, be unlawful—

"(a) For any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President shall prescribe."

The pertinent part of the act of March 2, 1921, 41 Stat. 1217, reads:

"That the provisions of the act approved May 22, 1918, shall, insofar as they relate to requiring passports and visas from aliens seeking to come to the United States, continue in force and effect until otherwise provided by law."

Considering your question in the light of the statutes above quoted, I agree with your Legal Adviser that the answer to it depends upon (1) whether the aliens involved are inadmissible to the United States under the provisions of either the Immigration Act of 1917 or the Immigration Act of 1924, or (2) whether they may be denied immigration visas under the act of May 22, 1918, as extended in part by the act of March 2, 1921, on the ground that their entry into the United States would be contrary to the public safety.

I further agree with your Legal Adviser that no provision of the Immigration Act of 1917 renders these aliens inadmissible to the United States unless it is the provision of section 3 of that act which makes inadmissible "persons who are members of or affiliated with any organization entertaining and teaching disbelief in or opposition to organized government (39 Stat. 876)."

In my opinion, the fact that the Hutterian Brothers refuse to support military measures-measures which are or may be necessary for the defense of organized government-does not make members of that sect inadmissible to the United States under the above-quoted provision of section 3 of the Immigration Act of 1917. The history and background of that provision show that it was aimed at preventing the entrance into the United States of those who advocate anarchy and violence or who preach the overthrow of the Government by unlawful means. As stated by your Legal Adviser, "while these people appear to live apart, in communities of their own, and have little or no participation in the political affairs of the countries in which they reside, it can hardly be said that they entertain or teach 'disbelief in or opposition to organized government,' except insofar as they refuse to support any organized government by military service. * there appear to be no decisions of courts or opinions of the Attorney General to the effect that aliens come within the purview of the statutory provision referred

to merely because they are extreme pacifists and refuse to perform military service."

I also agree with your Legal Adviser that no provision of the Immigration Act of 1924 (43 Stat. 153) renders these aliens inadmissible to the United States unless it is section 13 (c) of that act, which reads (p. 162):

"No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a nonquota immigrant under the provisions of subdivision (b), (d), or (e) of section 4, or (2) is the wife, or the unmarried child under 18 years of age, of an immigrant admissible under such subdivision (d), and is accompanying or following to join him, or (3) is not an immigrant as defined in section 3."

In United States v. Schwimmer, 279 U. S. 644, and United States v. MacIntosh, 283 U. S. 605, the Supreme Court held that uncompromising pacifists could not be admitted to citizenship. The basis of these decisions was first, that an uncompromising pacifist was deemed by virtue of his unwillingness to support measures necessary for the common defense, to have demonstrated a lack of that attachment to the principles of the Constitution which the law makes prerequisite to naturalization, and second, that one unwilling to take up arms in the defense of the nation could not take without reservation the oath of allegiance to the United States, and therefore could not comply with the requirements for naturalization laid down by the Congress.

We may assume that under the test established by the above-cited cases, members of the Hutterian sect could not be admitted to citizenship under the naturalization laws so long as they persisted in their present views. But does this mean that they are "ineligible to citizenship" within the meaning of section 13 (c) of the Immigration Act of 1924? An affirmative answer to this question would require that every alien seeking admission to the United States be subjected to an inquiry for the purpose of determining whether after he has lived in the United States for the requisite time he would be eligible for naturalization. I do not believe such an inquiry comes within the purpose or intent of section