Speech #820215196

The final report of the Attorney Generals Committee on Administrative Procedure reported at page 56: These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable. * * * Creation of independent hearing commissioners insulated from all phases of a case other than hearing and deciding will. the Committee believes. go far toward solving this problem at the level of the initial hearing provided the proper safeguards are established to assure the insulation (S. Doc. 8. 77th Cong.. 1st sess.. p. 56). And with specific reference to deportation proceedings. it was found that separation of functions was required by the rudiments of fair play and AngloAmerican concepts of justice. The Secretary of Labors Committee on Administrative Procedure reported in 140 as followspages 8182: A genuinely impartial hearing. conducted with critical detachment. is psychologically improbable if not impossible. when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. Nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of Investigation (cited in Sung case opinion. p. 44). To remedy these defects in administrative hearings we enacted in 1946 under the sponsorship of the Senator from Nevada the Administrative Procedure Act. And as noted by the Supreme Court in the Sung case. the administrative hearing in deportation cases furnished "a perfect exemplification of the practices so unanimously condemned. 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 the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake"-page 50. opinion has further good quotable material. see page 46. In the Administrative Procedure Act sponsored by the Senator from Nevada. and advocated by the American Bar Association. we condemned hearings held by officials subject to the control of investigating and prosecuting officials. I may say. Mr. President. that the junior Senator from Oregon stood shoulder to shoulder with the Senator from Nevada in debate on the floor of the Senate for the passage of the administrative procedure bill. but I part with the Senator from Nevada in respect to the failure in the immigration bill to carry out what I think is the clear spirit and intent of the administration procedure bill which he so ably advocated not very long ago on the floor of the Senate and which was passed by the Congress and is now the law of the land. We condemned the practice of permitting hearing officers to act as investigators one day and adjudicating officers the nextsection 5 (c) of the Adminis.. trative Procedure Act. We required hearing officers who were to be truly independent under section 11 of the Administrative Procedure Act as noted by the Senator from Nevada in his outline of the bill during the Senate debatesSenate Document 248. Seventyninth Congress. second session. page 327. And it is also noted In the legislative history of the bill that section 7 of the Administrative Procedure Act permitting hearings by officers specially designated pursuant to other statutes was not to be a loophole for the avoidance of the indedendent examiner system and that such exemption only applied to statutory hearing officers "with some special qualifications. as distinguished from examiners otherwise provided in the bill"-Senate Document No. 248. page 268. All the fine work and effort that has gone into the Administrative Procedure Act to insure administrative justice would be disregarded or nullified in proceedings under the Immigration Act as provided in S. 2550. We were warned by the American Bar Association Journal of January 1948page 9thatCare must be taken that subsequent legislation shall not repeal or whittle down the provisions of the [Administrative Procedurel Act. That warning was well taken. First. the Immigration authorities sought to whittle down the Administrative Procedure Act by a rider to an Appropriations Act. Now. though the rider is repealed. a further step is taken to make this permanent by this omnibus immigration bill. And soon. other agencies of the Government. the National Labor Relations Board. the Interstate Commerce Commission. and every other Government agency which opposed the Administrative Procedure Act may be tempted to present omnibus bills with provisions whittling down that act. If we enact S. 2550. we are denying the protections of the APA to important cases and are setting a precedent which is in danger of leading ultimately to virtual repeal of the Administrative Procedure Act. We should heed the objections to section 242 (b) voiced by the American Bar Association. We should heed the warning of Justice Jackson in the Sung case. that any exemption from the Administrative Procedure Act in deportation cases might be unconstitutional. We should heed the warnings that any whittling of the Administrative Procedure Act will lead to its eventual nullification. Second. the American Bar Association opposes the provision of section 242 (a) which authorizes the Attorney General to deny bail to an alien pending determination of his deportability. This section contains a specific provision that an alien may be successful in court only "upon a conclusive showing in habeas corpus proceeding that the Attorney General is not proceeding with reasonable dispatch." This. then. is a provision to give the Attorney General absolute discretion to deny bail to persons who are held for no crime but solely in a civil deportation proceeding. The Attorney General need not show that the alien would abscond or endanger our security. He only need show that he is proceeding with reasonable dispatch and he can then detain an alien for weeks and months without bail. If the deportation case requires evidence from abroad. or investigation in Europe involving months of work. an alien may be needlessly detained at Ellis Island. The function of bail Is to secure the reappearance of an alien when deportation has been ordered and is to be effectuated. Pending determination of deportability a subversive alien may be detained if his presence at large is a danger to our national securityCarlson v. Landon (342 U.