Deportation as Punishment
![handle is hein.journals/umkc27 and id is 215 raw text is: Deportation as Punishment
VICTOR S. NAVASKY*
INTRODUCTION
It is well settled that deportation, while it may be bur-
densome and severe for the alien, is not a punishment. These
are the words of Chief Justice Taft. It is the thesis of this writer
that deportation is a punishment-and that the courts' repeated
assertions that it is not a punishment are based on a combination
of semantic confusion, mis-reading of precedent and a by-passing
of history.
In contemporary deportation proceedings the alien is entitled
only to the skeletal minimum of procedural due process. This
springs partially from the assertion that deportation is not a
punishment. Other considerations, such as the implications of
sovereignty, the foreign policy power, problems revolving around
the delegation of powers and the separation of powers, and spe-
cific problems of statutory interpretation, certainly play a domi-
nant role; however, until the courts admit that deportation may
be punishment, alien deportation adjudication will be saddled with
the burden of a legal fiction-a fiction so mammoth that it pre-
cludes the examination of constitutional safeguards and their
relation to the powers and the problems mentioned above in the
clear perspective required by the democratic process.
I
PUNISHMENT AND SOVEREIGNTY
Two dominant themes run through the deportation cases.
One is that the power to deport is derived from the sovereignty
of the state, that the foreign policy power, the war power, the
necessity of protecting national security, the political nature of
foreign relations-all of these, related to the concept of a sov-
ereign state, insure that the sovereign shall have free reign to ex-
clude and deport.! The other theme is that deportation is not
punishment, that deportation proceedings are not criminal pro-
ceedings. On the basis of these doctrines the alien has been de-
nied the full protection of the Constitution and granted in its
*Special Assistant to Governor G. Mennen Williams, Lansing, Michigan.
1The meaning of sovereignty has long been a favorite topic of debate among political
philosophers. Its application to democracy, particularly, has been questioned. See ROCHE
& STEADMAN, DYNAMICS OF DEMOCRATIC GOVERNMENT (1954). On the other hand
it has been defended as useful, if functionally defined. See materials developed by Lass-
well and McDougal for World Community and Law class, Yale Law School. Recent
theorists have gone so far as to assert that it is meaningless. See WELDON, THE VOCAB-
U2LARY OF POLITICS (1955). Here we can accept the Court's usage of the term sover-
eign power to be equivalent to what is called the foreign policy power. However,
because the courts so frequently refer to the sovereign power [see Fong Yue Ting v.
United States, 149 U.S. 711 (1893); Chinese Exclusion Cases, 130 U.S. 581 (1889);
Nishimura Ekiu v. United States, 142 U.S. 651 (1891)] I will employ that term to
designate those powers usually thought inherent in the notion of sovereignty.](ViewImageLocal?handle=hein.journals/umkc27&div=27&collection=&method=preview&ext=.png&size=3)
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