MR. JUSTICE CLARK delivered the opinion of the Court.
Heikkila is an alien whose deportation has been ordered by the Attorney General. He began this action against the District Director of the Immigration and Naturalization Service by a complaint seeking a "review of agency action" as well as injunctive and declaratory relief. His main substantive claim is that § 22 of the Internal Security Act of 1950, 64 Stat. 1006, upon which the order was based, and which makes Communist Party membership per se ground for deportation, is unconstitutional. A three-judge District Court convened under 28 U. S. C. §§ 2282, 2284, dismissed the complaint without opinion. Together with the constitutional question, this appeal presents two important procedural questions: whether the validity of deportation orders may be tested by some procedure other than habeas corpus and, if so, whether the Commissioner of Immigration and Naturalization is an indispensable party to the action.
It is clear that prior to the Administrative Procedure Act habeas corpus was the only remedy by which deportation orders could be challenged in the courts.
Apart from the words quoted, the Administrative Procedure Act itself is silent on which "statutes preclude judicial review." Both the Senate and the House Committee Reports on the Act commented that "Very rarely do statutes withhold judicial review."
That the Attorney General's decisions are "final" does not settle the question. The appellant properly emphasizes the ambiguity in that term. Read alone, it might refer to the doctrine requiring exhaustion of administrative remedies before judicial process can be invoked. But "final," as used in immigration legislation, has a history, both in the statutes and in the decisions of this Court. It begins with § 8 of the Immigration Act of 1891, 26 Stat. 1085, which provided in part that "All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury." The appellant in Ekiu v. United States, 142 U.S. 651 (1892) argued that if § 8 was interpreted as making the administrative exclusion decision conclusive, she was deprived of a constitutional right to have the courts on habeas corpus determine the legality of her detention and, incidental thereto, examine the facts on which it was based. Relying on the peculiarly political nature of the legislative power over aliens, the Court was clear on the power
Read against this background of a quarter of a century of consistent judicial interpretation, § 19 of the 1917 Immigration Act, 39 Stat. 889, clearly had the effect of precluding
The three Court of Appeals decisions to the contrary have taken the position that habeas corpus itself represented judicial review, albeit of a limited nature. United States ex rel. Trinler v. Carusi, 166 F.2d 457; Kristensen v. McGrath, 86 U. S. App. D. C. 48, 179 F.2d 796; Prince v. Commissioner, 185 F.2d 578. Under this approach, the finality of an administrative decision must be absolute before the first exception to § 10 can apply. Our difficulty with this position begins with the nature of the writ and
Heikkila suggests that Perkins v. Elg, 307 U.S. 325 (1939) (declaratory and injunctive relief), and McGrath v. Kristensen, 340 U.S. 162 (1950) (declaratory relief), were deviations from this rule. But neither of those cases involved an outstanding deportation order. Both Elg and Kristensen litigated erroneous determinations of their status, in one case citizenship, in the other eligibility for citizenship. Elg's right to a judicial hearing on her claim of citizenship had been recognized as early as 1922 in Ng Fung Ho v. White, 259 U.S. 276. And Kristensen's ineligibility for naturalization was set up in contesting the Attorney General's refusal to suspend deportation
Appellant's Administrative Procedure Act argument is his strongest one. The reasons which take his case out of § 10 apply a fortiori to arguments based on the general equity powers of the federal courts and the Declaratory Judgment Act. 28 U. S. C. § 2201. See Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 671-672 (1950). Because we decide the judgment below must be affirmed on this procedural ground, we do not reach the other questions briefed and argued by the parties.
The rule which we reaffirm recognizes the legislative power to prescribe applicable procedures for those who would contest deportation orders. Congress may well have thought that habeas corpus, despite its apparent inconvenience to the alien, should be the exclusive remedy in these cases in order to minimize opportunities for repetitious litigation and consequent delays as well as to avoid possible venue difficulties connected with any other type of action.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BLACK joins, dissenting.
Three Courts of Appeals have decided that under the Administrative Procedure Act an alien against whom a deportation order is outstanding may challenge the validity of that order by asking for a declaratory judgment.
If anything is plain in the legislative history of the Administrative Procedure Act it is that the Congress was not concerned with formularies when it referred to statutes which "preclude judicial review." Senator McCarran was closely questioned about this matter and he had to satisfy Senators as to the very restricted meaning of this exception. He was not talking about "review" in any technical sense. He was talking about the opportunity to go into court and question what an administrative body had done. And he referred to those rare cases when "a statute denies resort to the court." The bill, he said, "would not set aside such statute." And then he repeated in a paraphrase what he had meant—a denial of "resort to the court"—in loose lawyers' language: "If a statute denies the right of review, the bill does not interfere with the statute." S. Doc. No. 248, 79th Cong., 2d Sess. 319. He had already made clear what his statement, "the bill does not interfere with the statute," meant by pointing out that the exception to ready access to the courts was limited to a "law enacted by statute by the Congress of the United States, granting
To allow a proceeding for a declaratory judgment to test the same issues that are open on habeas corpus is to abrogate no Act of Congress. It is, rather, to adopt, as between two permissible constructions of the Administrative Procedure Act, the one that evinces "a judicial attitude of hospitality." The Court shrinks from such a construction, with obvious reluctance, because it thinks it cannot adopt it without subjecting an order of deportation to new and unlimited judicial scrutiny. Surely this is a needless fear. A declaratory judgment action under § 10 (b) can be limited—as it should be—to the scope of review appropriate to the extraordinary remedy of habeas corpus. The Administrative Procedure Act is not to be construed, and it is easy not to construe it, so as to modify the Immigration Act and to allow courts to examine what the Attorney General has done beyond those substantive limits to which habeas corpus is now confined. But it is equally easy, and therefore I believe compelling, to construe the Administrative Procedure Act so as to loosen up the means by which the scrutiny provided for by the Immigration Act may be undertaken, to the extent that the technical conditions for habeas corpus, namely that a person must be in physical custody, can be dispensed with where a claim, capable of being vindicated through habeas corpus, is found.
The point is legally narrow but practically important. It means that one against whom a deportation order is outstanding but not executed may at once move, by means of a declaratory judgment, to challenge the administrative process insofar as the substantive law pertaining to deportation permits challenge. Of course Congress may now explicitly afford this relief. It may
"(a) RIGHT OF REVIEW.—Any person suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute, shall be entitled to judicial review thereof.
"(b) FORM AND VENUE OF ACTION.—The form of proceeding for judicial review shall be any special statutory review proceeding relevant to the subject matter in any court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action (including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus) in any court of competent jurisdiction. Agency action shall be subject to judicial review in civil or criminal proceedings for judicial enforcement except to the extent that prior, adequate, and exclusive opportunity for such review is provided by law.
"(c) REVIEWABLE ACTS.—Every agency action made reviewable by statute and every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review. Any preliminary, procedural, or intermediate agency action or ruling not directly reviewable shall be subject to review upon the review of the final agency action . . . .
"(e) SCOPE OF REVIEW.—So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error." 60 Stat. 243, 5 U. S. C. § 1009.