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DEPARTMENT OF LABOR,
OFFICE OF THE SOLICITOR,

Washington, February 10, 1938. Hon. ARTHUR H. VANDENBERG,

United States Senate, Washington, D. C. DEAR SENATOR VANDENBERG: I enclose a copy of the opinion of former Solicitor Charles E. Wyzanski rendered to the Commissioner of Immigration and Naturalization in the case of Frank Borich. This is the opinion which you requested that I submit to you this morning. Faithfully yours,

GERARD D. REILLY,

Solicitor of Labor.

JANUARY 3, 1934. To the COMMISSIONER OF IMMIGRATION AND NATURALIZATION.

DEAR Sır: You have asked my opinion whether the Secretary of Labor, acting under the authority of the act of October 16, 1918 (40 Stat. 1012), as amended by the act of June 5, 1920 (41 Stat. 1008, 8 U. S. C. 137), ought to deport Frank Borich, an alien, on the ground that he is a member of the National Miners Union.

In my opinion the Secretary of Labor ought not to deport the alien on the ground stated.

The voluminous file of the Department of Labor clearly shows, and the alien himself admits, that since 1928 he has been connected with the National Miners Union, first as organizer and later as national secretary. The National Miners Union's original or 1928 constitution shows that it is primarily a militant leftwing labor organization interested in a 6-hour working day, minimum wages, social insurance, and national labor agreements achieved through strikes and an alliance of coal miners, railroad, and transportation workers. The greater part of the constitution is devoted to provisions relating solely to the organization, administrative functioning, and financing of the union.

However, in article I of the original constitution, it is stated that the union shall “affiliate itself with the class-conscious labor movement of the world, and declare adherence to the program, principles, and statutes of the Red International of Labor Unions." This Red International of Labor Unions, to which reference is made, is a "revolutionary world union of workers," operates in the United States through the Trade Union Unity League, i. e., the TUUL, and advocates “a united struggle against international capitalism” rather than the "nationalistic and patriotic stand of the reformist trade unions." There is in the record no evidence, other than this declaration, that the National Miners Union has ever been closely connected with the Red International, and Borich claims that this declaration was omitted from and repudiated by the present constitution of the National Miners Union, supposed to have been adopted on March 20, 1932.

Moreover, the actual history (as distinguished from the platform) of the National Miners Union does not reveal that the organization has ever indulged in any physical or verbal attack upon the American political structure, although it, like more conservative bodies, may have severely criticized individual governmental officials and, like other labor unions, may have violated particular governmental orders. Throughout its life the union has been an industrial force rather than a political one. Its conflicts with the United Mine Workers of America and with operators of coal mines have been its chief preoccupation. It may have had individual Communists for leaders. It may have accepted the thesis of the class struggle. It may through cooperation with the Trade Union Unity League have tried to promote labor organization on a vertical and industrial basis (an end which can hardly be criticized by officials of this Administration and supporters of General Johnson). But there is no evidence that as an organization the National Miners Union has ever executed or advocated policies aimed at the overthrow of the Government of the United States.

Under these circumstances I am of the opinion that the National Miners Union is not itself an “organization

that

teaches the overthrow by force or violence of the Government of the United States,” and is not so closely related to any revolutionary organization advocating such a doctrine that mere membership in the union should be treated as affiliation with the revolutionary organization.

I do not mean to say that the case is so clear that a reasonable man could not reach a different result from mine. The evidence about the nature of the union is conflicting and susceptible of different interpretations. If a Secretary of Labor

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decided that this National Miners Union and like vertical unions, by emphasizing class struggle and similar doctrines, showed that they were inherent parts of a Communist scheme to overthrow the Government of the United States by force or violence, and if a Secretary of Labor issued warrants ordering the deportation of the members of all such unions, the courts would not release the aliens on writs of habeas corpus.

United States ex rel. Borich v. Marshall, unreported (C. C. A. 3, Oct. 19, 1933); Kjar v. Doak, 51 F. (2d) 566 (C. C. 4. 7, 1932); Wolck v. Weedin, 58 F. (20) 928 (C. C. A. 9, 1932); Berkman v. Tillinghast, 58 F. (2d) 621 (C. C. A. 1, 1933).

But the function of the courts under our deportation system should not be forgotten. The courts do not and cannot hear appeals from the Secretary of Labor. A judge can set aside a deportation order only when the Secretary has committed an “error so flagrant as to convince a court of the essential unfairness of the trial.” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927); cf. Lloyd Sabaudo Societa v. Elting, 287 U. S. 329, 335-336, 338 (1932). In other words there never can be a court decision—though there may be dictaholding that the Department of Labor was incontrovertably right in ordering a deportation. A judge in quashing a writ of habeas corpus merely decides that the Secretary had some evidence justifying deportation; he may feel that the Secretary would have been at least equally justified in making a decision not to deport, but in his official capacity the judge has no right to say so.

There is an important reason for emphasizing at this point the limited role of the courts. One Secretary of Labor may have a strong dread of political revolution accomplished through industrial organizations. Or one decade may find the American people alarmed at the supposed menace. These fears may lead to the issuance of warrants for the deportation of members of such industrial organizations. And since there will be some evidence to sustain the Secretary of Labor, our courts cannot set aside the warrants. But succeeding Secretaries of Labor and later decades may view the danger as less real and may interpret the facts differently or weigh the evidence with altered results. It is of cardinal importance that in such close cases the Secretary of Labor should recognize that he is free to decide either way; no court decision even on the very case that he is considering can properly be cited to restrain his choice; if he selects deportation he should realize that is because it is his administrative pleasure to perpetuate the policies of his predecessor and not because it is his duty under court decisions.

The instant case seems to me to be one in which the Secretary of Labor, while he would be, and indeed has been, sustained by the courts in ordering deportation, ought not to have gone so far. The National Miners Union is one of a group of left-wing labor organizations. Membership in each such union is avowedly solicited only from those working in a particular industry. Activities are directed almost exclusively in economic channels. Antagonism, if any is promoted, is toward the older and more conservative unions, not toward democratic government. For the United States to deport a man merely for membership in such a union is to deport a man for seeking to overthrow conservative union domination, not for seeking to overthrow the Government of the United States.

At this particular time, when the Government is giving to workers “the right to organize and bargain collectively through representatives of their own choosing” regardless of the radical character of the representatives (National Industrial Recovery Act, 7 (a); 48 Stat. 195, 198), when it is encouraging left-wing labor leaders to present their radical views before deputy administrators charged with the formulation of codes of fair competition, it is only consistent for the Department of Labor to leave unmolested members of a left-wing labor union unless the union is a mere subterfuge for political sedition or unless the individual member himself teaches the overthrow of the Government of the United States by force or violence.

Upon the record as it now stands, neither the Board of Review nor I feel justified in finding that Borich himself advocates such overthrow, or that he belongs to any purely political movement that has that goal. (The evidence on this point shows nothing more than that some articles bearing a name resembling Borich's were reprinted in radical papers like the Daily Worker.) In the absence of such a finding and with merely membership in the National Miners Union proved, I do not believe Borich should be deported. If he is deported on the narrow ground proved, every other alien member of this union must be deported. To such an extreme we ought to proceed reluctantly and only after clear and convincing proof tha 1the political institutions of our country are actually menaced.

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I may further add that in my opinion the principle that I have stated seems to me to apply to membership not only in the National Miners Union but in all leftwing labor unions that are not mere shields for political revolution such as the Marine Workers Industrual Union, Metal Workers Industrial League, Tampa Tobacco Workers Industrial Union, the National Textile Workers, International Labor Defense, and the Trade Union Unity League.

CHARLES E. WYZANSKI, Jr., Solicitor. In view of the opinion of the Solicitor of Labor, and in view of definite assurances that the Trade Union Unity League has severed any affiliation it may have had with the Red International Labor Union, I hereby direct that hereafter no warrant for the deportation of any alien shall be issued or executed if the sole ground for the warrant is his membership in any of the following organizations: National Miners Union, Marine Workers Industrial Union, Metal Workers Industrial League, Tampa Tobacco Workers Industrial Union, the National Textile Workers, International Labor Defense, and the Trade Union Unity League. This order shall not be construed to prevent the issuance or execution of warrants for the deportation of aliens who themselves advocate the overthrow by force or violence of the Government of the United States or who are members of political organizations that advocate a similar goal.

DANIEL W. MacCORMACK, Commissioner of Immigration and Naturalization.

TURNER W. BATTLE,

Assistant to the Secretary of Labor. (At 11:55 a. m. the committee adjourned until 10 a. m., Friday, February 11, 1938.)

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