Article I, Section 9, Clause 3:
No Bill of Attainder or ex post facto Law shall be passed.
Multiple Supreme Court cases have held that deportation proceedings are civil, not penal, in nature, and therefore are not subject to the federal Ex Post Facto Clause.1 As one example, in Harisiades v. Shaughnessy, the Court considered ex post facto claims from several resident aliens who had been ordered deported based on their past membership in the Communist Party. The Court rejected the claims, holding in part:
Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure. . . . ‘Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the government to harbor persons whom it does not want.'2
In Galvan v. Press, the Court considered another ex post facto claim by a former Communist Party member challenging his deportation.3 The Court acknowledged the severe consequences of deportation—even likening its “intrinsic consequences” to punishment for a crime—but ultimately chose to follow “the unbroken rule of this Court that [the Ex Post Facto Clause] has no application to deportation.” 4
In Flemming v. Nestor, the Supreme Court rejected an ex post facto challenge to a statute terminating federal old-age, survivor, and disability insurance benefits for individuals deported on certain grounds.5 The Court deemed the challenged sanction to be “the mere denial of a noncontractual governmental benefit” and held that Congress could have reasonable, non-punitive reasons for “the disqualification of certain deportees from receipt of Social Security benefits while they are not lawfully in this country.” 6 While the challenger argued that Congress was actually motivated by a punitive purpose, the Court stated that “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground,” and found no such proof with respect to the challenged statute.7
In Johannessen v. United States, the Supreme Court held that a statute providing for cancellation of United States citizenship obtained by fraud was not an ex post facto law.8 The Court held that the “act imposes no punishment upon an alien who has previously procured a certificate of citizenship by fraud or other illegal conduct. It simply deprives him of his ill-gotten privileges.” 9
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Footnotes
- 1
- Bugajewitz v. Adams, 228 U.S. 585, 609 (1913); Mahler v. Eby, 264 U.S. 32, 39 (1924); Marcello v. Bonds, 349 U.S. 302, 314 (1955).
- 2
- 342 U.S. 580, 594 (1952) (quoting Bugajewitz, 228 U.S. at 591). The Court also held that the challenged statute did not apply retroactively. See id. at 593; see ArtI.S9.C3.3.3 Retroactivity of Ex Post Facto Laws.
- 3
- 347 U.S. 522, 523 (1954).
- 4
- Id. at 531.
- 5
- 363 U.S. 603, 604–05 (1960).
- 6
- Id. at 617.
- 7
- Id.
- 8
- 225 U.S. 227, 242–43 (1912).
- 9
- Id. at 242.