of deprivations of liberty, executive confinement and deportation of the type pursued here rank only a notch below criminal imprisonment. See Jordan v. De George, 341 U.S. at 231 ("deportation is a drastic measure and at times the equivalent of banishment or exile... It is the forfeiture for misconduct of a residence in this country"). In light of the "grave nature of deportation," id., due process requires, at a minimum, that plaintiff be afforded a meaningful opportunity to be heard. Thus, under the second Eldridge factor, it is clear that the procedures currently provided by law are woefully inadequate.
The final factor that this court must consider is the governmental interest in allowing the Secretary of State to declare an alien's deportability in the interest of foreign policy and the increased cost to the government of requiring additional procedures.
The paramount importance of allowing the Secretary of State freely to pursue the interests of our nation's foreign policy cannot be overstated. However, there is no reason to assume that this interest is any more sacrosanct than the public safety, the national security, or the stability of the United States government itself. When an alien has jeopardized one of these concerns, the INA provides him or her with a meaningful opportunity to rebut the charges. Thus, as important as the nation's foreign policy is, this court is aware of no rationale that would justify this extraordinary grant of discretion given the Secretary of State when other equally lofty interests do not warrant a comparable suspension of an alien's constitutional rights.
Finally, the additional administrative costs that would be imposed by granting aliens a meaningful opportunity to be heard prior to their deportation under § 241(a)(4)(C)(i) would be negligible, as experience has shown that such proceedings are few and far between. See Mathews v. Eldridge, 424 U.S. at 347 (noting the enormous incremental cost to the government that would accompany the recognition of a constitutional right to an evidentiary hearing prior to the termination of all disability benefits).
In the final analysis, this court is convinced that a balancing of the appropriate factors tips well in plaintiff's favor. Absent a meaningful opportunity to be heard, the Secretary of State's unreviewable and concededly "unfettered discretion" to deprive an alien, who lawfully entered this country, of his or her liberty to the extent exemplified by this case is, in this court's view, unconstitutional. Accordingly, this court now holds that § 241(a)(4)(C)(i) of the INA, 8 U.S.C. § 1251(a)(4)(C)(i) is unconstitutional both on its face and as applied.
C. Unconstitutional Delegation of Legislative Powers
For many of the same reasons that § 241(a)(4)(C)(i) of the INA is violative of the due process clause, it also is an unconstitutional delegation of legislative power to the executive. This court is well aware of the fact that, since the New Deal era, in which the relationship between the executive and legislative branches of our government was dramatically transformed, the delegation doctrine has fallen into disfavor as a result of the rejection of what was perceived as the Supreme Court's overreaching in the name of substantive due process. See Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 686, 65 L. Ed. 2d 1010, 100 S. Ct. 2844 (1980) (Rehnquist, J. concurring). Thus, this court does not tread into this area of the law without some apprehension if not trepidation. The fact remains, however, that the delegation doctrine safeguards the integrity of the separation of powers principle upon which our tripartite system of government was designed, and cannot be allowed to slip irretrievably into obscurity.
The Constitution grants the power to make laws exclusively to the people's representatives in Congress. U.S. Const. Art. I § 1. "That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution." Field v. Clark, 143 U.S. 649, 692, 36 L. Ed. 294, 12 S. Ct. 495 (1892). It has long been recognized, however, that some level of legislative delegation is necessary to the efficient administration of the ever-broadening regulatory course charted by Congress. Accordingly, "the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, 'fill in the blanks,' or apply the standards to particular cases." Industrial Union, 448 U.S. at 675 (Rehnquist, J., concurring). The delegation doctrine, then, functions to ensure that Congress will remain the nation's primary policy maker by requiring it to articulate intelligible standards to guide (1) the exercise of the delegatee's authority, and (2) the judiciary's ability to review the exercise of that authority against a congressionally mandated policy. Id. at 685-86. Section 241(a)(4)(C)(i) fails on both counts.
In A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 79 L. Ed. 1570, 55 S. Ct. 837 (1935), the Supreme Court struck down § 3 of the National Industrial Recovery Act ("WIRA") as an unconstitutional delegation of legislative authority to the executive. Section 3 of the NIRA authorized the President to adopt industry wide "codes of unfair competition" proffered by trade or industrial associations if such codes effectuated the policies of the NIRA and would not promote monopolies. Id. at 522-23. The policies underlying the NIRA were articulated in § 1 of the act and included: "to remove obstructions to the free flow of interstate and foreign commerce, ... to eliminate unfair competitive practices, ... to avoid undue restriction of production, ... to increase the consumption of industrial and agricultural products by increasing purchasing power, ... to reduce and relieve unemployment, ... and otherwise to rehabilitate industry and to conserve natural resources." Id. at 531 n.9. Notwithstanding the NIRA's explicit statement of congressional policy, the Court invalidated the statute, concluding that,
it does not undertake to prescribe rules of conduct to be applied to particular states of fact determined by appropriate administrative procedure.... Section 3 sets up no standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in section one. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed, the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered. We think that the code-making authority thus conferred is an unconstitutional delegation of legislative power.
Id. at 541-42 (emphasis added).
As the court recognized, the President's discretion was not completely unlimited. The codes that he adopted were required to further the policy objectives of the NIRA and could not promote monopolies. That, however, was not enough to save the statute from invalidation. Section 241(a)(4)(C)(i) of the INA contains even less of a policy statement than did the NIRA. The only congressional policy that can be gleaned from the statute is that foreign policy can trump a legal alien's right to remain in this country if the Secretary believes that it should. Such a policy, if policy it be, cannot suffice to save the statute from invalidation. The "policy" is purely precatory and, rather than guiding the Secretary's exercise of authority, does little more than inform him that Congress has given him the absolute power to deport.
In light of the inadequacy of the congressional statement of policy underlying § 241(a)(4)(C)(i), this court must examine whether the statute contains sufficiently intelligible standards to direct the Secretary's exercise of discretion and to enable a court to review the exercise thereof. Although the parties have not raised the delegation issue in their submissions, the government relies on a line of cases for the proposition that, in regard to legislation with foreign policy implications, Congress must be allowed to delegate broader discretion to the President and his agents out of respect for the executive's residual authority over foreign affairs and the impracticability of requiring Congress to dictate with precision in an area in which it lacks the expertise to do so. While this court cannot disagree with government's basic premise, an examination of the cases on which the government relies serves only to further convince this court that the unprecedented delegation at issue here is, indeed, unconstitutional.
In United States V. Curtiss-Wright Export Co., 299 U.S. 304, 81 L. Ed. 255, 57 S. Ct. 216, (1936) the Supreme Court upheld the constitutionality of a statutory delegation relating to foreign affairs, finding that, under the circumstances, the statute was sufficiently precise. In arriving at its conclusion, the Court recognized that Congress "must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved." Id. at 320. The Court's refusal to strike down the provision as an unconstitutional delegation, however, must be understood in the context of the detailed statute that was before the Court. The statute there at issue authorized the President to prohibit the sale of arms to countries then engaged in armed conflict in the Chaco region of South America if he were to find that the prohibition would contribute to the establishment of peace in that region. Id. at 312. Such specificity, when compared to the blanket grant of discretion in § 241(a)(4)(C)(i) of the INA, renders Curtiss-Wright inapposite to the case at bar for all but the broadest of principles.
The government also relies on Zemel v. Rusk, 381 U.S. 1, 14 L. Ed. 2d 179, 85 S. Ct. 1271 (1965), in which the Supreme Court reaffirmed and refined its holding in Curtiss-Wright. The government cites Zemel for the proposition that,
because of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congress--in giving the Executive authority over matters of foreign affairs--must of necessity paint with a brush broader than that it customarily wields in domestic areas.