56196/251
Decided by Central Office October 31, 1945. Decided by Board December 13, 1945. Ruling by Attorney General May 15, 1946.
Citizenship — Expatriation — Section 401 (j) of the Nationality Act of 1940, as amended — Applicability to persons under twenty-one.
A native born citizen can forfeit his citizenship under the provisions of section 401 (j) of the Nationality Act of 1940, as amended, prior to attaining his twenty-first birthday.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1917, as amended — Departed to escape military service.
BEFORE THE CENTRAL OFFICE
(October 31, 1945)
Discussion: The appellant applied for admission as a citizen of the United States on July 30, 1945, at the port of Nogales, Ariz. He was found to be inadmissible by a Board of Special Inquiry on the ground stated above and has appealed from that decision.
The appellant stated that he was born in the United States on April 19, 1926, and in support thereof he presented a baptismal certificate showing birth on the date stated and stating that he was baptized on August 15, 1926 at Owensmouth, Calif. While this baptismal certificate shows baptism 4 months after birth and does not contain a statement of the place of birth and although no independent evidence of the place of birth has been presented, it may be conceded, for the purposes of this opinion, that he was born in this country and therefore a citizen thereof at birth.
During his hearing the appellant stated that the reason he last departed from the United States during February 1944 was that he "was getting to be nearly 18 years old and (he) did not want to register for the selective service in the United States." He added that that was the reason he remained outside of this country until his present application for admission. He is not yet 21 years of age.
Section 401 of the Nationality Act of 1940, as amended by the act of September 27, 1944, provides that:
A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: (j) Departing from or remaining outside of the jurisdiction of the United States in time of war or during a period declared by the President to be a period of National emergency for the purpose of evading or avoiding training and service in the land or naval forces of the United States.
It is conceded that the appellant remained outside of the United States on and after September 27, 1944 for the purposes proscribed by the said act. The sole question to be determined therefore, is whether he became expatriated thereby in view of his minority. If he did not, he is admissible as an American citizen. If he did become expatriated he is an alien and excludable on the ground urged by the Board of Special Inquiry inasmuch as section 3 of the act of February 5, 1917, was amended on September 27, 1944, to provide for the exclusion of aliens who have departed from the jurisdiction of the United States for the purpose of evading or avoiding training or service in the armed forces of this country during time of war or during a period declared by the President to be a period of national emergency.
It is conceded that departure for the proscribed purpose before the effective date of the act renders an alien excludable if he seeks to reenter on or after that date.
The issue presented in this case does not appear to have been determined by any court. The question of whether minority is a bar to the appellant's expatriation is not resolved by the provisions of the statute. Section 403 (b) of the Nationality Act of 1940, as amended, provides that no national under 18 years of age can expatriate himself under the provisions of subsections (b) to (g), inclusive, of section 401. When subsection (j) was added to section 401, the age provisions of section 403 were not extended to encompass it. Did Congress intend to impose majority as the sine qua non to expatriation under section 401 (j) and must that subsection be so interpreted?
I. General Observations
Under the Act of March 2, 1907, an individual could become expatriated by naturalization in a foreign state, by taking an oath of allegiance to a foreign state or by marriage to a foreigner. This act was entirely silent as to any minimum age at which expatriation could occur. It was held, however, that minority prevented loss of nationality by an oath of allegiance to a foreign state. ( U.S. ex rel. Baglivo v. Day, 28 F. (2d) (44 D.C., N.Y., 1928)), or by naturalization in a foreign state (Legal Branch, file 56034/793, May 31, 1941; Board of Immigration Appeals, files 56096/426, November 1, 1942; 56107/249, October 21, 1942) because it was stated that a minor could not renounce his citizenship. However, minority was no bar to expatriation (under the same statute) as a result of marriage to a foreigner primarily because the phrase "any American woman" in the act was intended to refer to any female regardless of age (In re: Wittus, 47 F. (2d) 652 (D.C., Mich., 1931); Solicitor of Labor, Court file 3611, Apr. 20, 1923; Hackworth, Digest of International Law, Vol. III, pp. 252, 253). It would be mere conjecture to say that the principles applied to the foreign oath or foreign naturalization provisions of the prior law should apply to section 401 (j) any more than that those applicable to marriage to a foreigner should apply, and vice versa. Nor can it be argued that the failure of section 403 (b) to include section 401 (j) cases indicated, ipso facto, an intention to require majority as the minimum age at which expatriation can occur. Quite the contrary conclusion should be reached if only section 403 (b) were read because it does in fact set up a base age upon which expatriation occurs in some cases and by failing to set up any age applicable to 401 (j), it is clearly arguable that no base age was intended because such base age if intended, would have been stated here, too.
Marriage to a foreigner was removed as a ground for expatriation by the acts of September 22, 1922 and March 3, 1931. The other two stated statutory provisions of the act of March 2, 1907 relating to expatriation remained in effect until the passage of the Nationality Act of 1940, effective January 13, 1941.
It is also arguable, preliminarily, that a minimum-age limitation should not be read into the statute unless such is clearly required in order to give the statute a sensible meaning. Such requirement is nonexistent in connection with this statute. Nor, as a matter of fact, would it appear to be even remotely practicable, as a matter of legal construction, to do so because:
(a) The statute was passed during time of war when Congress was aware of the imposition of severe prison sentences for evasion upon persons under 21 years of age as well as those who have attained majority and there is no reason to impute to Congress an unexpressed intention to prevent loss of citizenship to persons under the age of majority.
(b) When the Nationality Act of 1940 was enacted on October 14, 1940, prior to any amendments thereto, the United States was not at war, yet Congress saw fit then to say that a citizen in our armed forces under 21 years of age would expatriate himself by conviction for desertion during time of war (secs. 401 (g) and 403 (b)). Certainly its later statute passed in time of war should not properly have read into it a 21-year age minimum for willful draft evasion.
(c) During the First World War a statute was in force which provided for the expatriation of any person who went beyond the limits of the United States with intent to avoid any draft into the military or naval forces (secs. 1996 and 1998, Revised Statutes, as amended). These statutes contain no indication that they apply only to persons who had attained their majority. On the contrary, there is indication that it would have applied to minors (In re: Carver, 142 F. 623 (C.C., Maine, 1905)). It was so concluded without discussion by this Service (Legal Branch, file 23/59925, Nov. 12, 1941). The statute under discussion is sufficiently similar to require like interpretation.
(d) There is no reason to impose different consequences for draft evasion solely because of age differentials in any cases of persons made liable for service in our armed forces. Persons under 21 years of age were made so liable. Similar consequences should follow in all cases of failure to comply with a legal obligation to serve, regardless of age.
(e) Section 306 of the Nationality Act of 1940, passed during peacetime, barred a person from naturalization if, having enrolled, he departed from the jurisdiction with intent to avoid draft and was convicted therefor. It could not be argued that Congress intended any minimum age to be applicable to section 306 and yet to impose majority as the minimum age in section 401 (j) would mean that an alien under 21 years of age could not be naturalized if his case was governed by section 306, and yet if he were already a citizen he would not lose that status by performing any of the proscribed acts in section 401 (j) while under the age of majority.
(f) Section 401 (h) of the Nationality Act of 1940 is not encompassed within the provisions of section 403 (b). To argue that the absence of 401 (j) from 403 (b) requires an interpretation that the minimum age at which expatriation can occur is 21 years, would of necessity require that a person convicted of treason committed while he was 20 years of age was likewise not expatriated under section 401 (h). Certainly Congress could not have intended expatriation to result during minority from such acts as, for example, taking a foreign oath of allegiance (secs. 401 (b) and 403 (b)) and yet impose majority as the minimum age for expatriation as a result of conviction for treason. On the contrary, it would appear that Congress, by not including section 401 (h) within 403 (b), intended 401 (h) to apply regardless of the attainment of majority. The same reasoning would apply to section 401 (j) now under consideration.
II. The Congressional Intent in Enacting Section 401 (j) and some Views Expressed in Connection With That Section
Having made the foregoing preliminary observations, it is in order to consider the very significant legislative course and history of section 401 (j).
The Attorney General on November 18, 1943, in transmitting his recommendation to the Director of the Bureau of the Budget on the bill as proposed to be submitted to Congress stated:
In accordance with provisions of Bureau of Budget Circular No. 390.
The files of this Department disclose that at the present time there are many citizens of the United States who have left this country for the purpose of escaping service in the armed forces. While such persons are liable to prosecution for violation of the Selective Training and Service Act of 1940, if and when they return to this country, it would seem proper that they should lose their United States citizenship in addition. People who are unwilling to perform their patriotic duty to their country and abandon it during its time of need are much less worthy of citizenship than are persons who become expatriated on any of the existing grounds.
This clearly indicates that the Attorney General intended to interpret the proposed legislation as having no minimum-age requirement especially when it is noted that the proposed bill which he attached to his letter to the Director of the Bureau of the Budget was later enacted as section 401 (j). The Attorney General's statement quoted above was incorporated in his recommendations to the Speaker of the House and to Senator Russell, chairman of the Committee on Immigration, United States Senate, dated February 16, 1944 (copies contained in file 56185/401 and H. Rept. No. 1229, 78th Cong. 2d sess.). The House Committee recommended that the bill be passed (H. Rept. No. 1229, supra).
On March 20, 1944, Congressman Mason on the floor of the House explained that the bill would denaturalize "any citizen" who performed the proscribed acts. He added that "Anyone who left the country * * * would lose his citizenship * * *."
In the debate in the House on March 23, 1944, Congressman Dickstein, the chairman of the House Committee on Immigration, stated: "I would classify this piece of legislation as a bill to denaturalize and denationalize all draft dodgers who left this country knowing that there was a possibility that they might be drafted * * *." [Italics supplied.] Later he stated that "this country does not want that kind of a citizen."
Congressman Rowe then stated: "I understand by that that if they are within the qualifying age (for service in the armed forces) and an emergency exists, then it is determined that they left the country for that purpose." Congressman Mason then made this very significant observation: "There is not a Member of Congress who does not agree completely with the purposes of the bill to denaturalize, I would put it, or expatriate, any citizen who dodges the draft by skipping out of the country * * *. Those are the * * * provisions of the bill. They are clear, they are plain, and everyone agrees with them." [Italics supplied.]
The foregoing leaves little doubt that the House intended the bill to expatriate an individual notwithstanding the fact that he may not have attained his majority at the time of performing any of the proscribed acts.
The Senate Committee report (S. Rept. 1075, 78th Cong., 2d sess.) discloses that after considering, inter alia, the Attorney General's letter to Senator Russell hereinbefore referred to, the committee recommended the bill favorably. A statement of the other matters considered did not appear in the report.
Senator Russell, however, made the following statement in the Senate on September 8, 1944:
* * * It further provides that any alien who is subject to military service under the terms of the Selective Service Act, and who left this country to avoid military service, shall thereafter be forever barred from admission to the United States. * * * This bill would deprive such persons as are citizens of the United States of their citizenship * * *. [Italics supplied.] This, too, indicates that the age at which expatriation was intended to occur was not limited by the age of majority but rather that an individual could become expatriated prior to attaining his majority.
After the bill was passed the Attorney General issued Circular No. 3893 on December 5, 1944, to all United States Attorneys, the Federal Bureau of Investigation and the Immigration and Naturalization Service in which he stated that the act "provides for automatic expatriation of a citizen of the United States" who performed any of the proscribed acts. He did not limit his statement by imposing majority as the minimum age for expatriation thereunder.
From all of the foregoing it is concluded that an American citizen may expatriate himself by performing any of the proscribed acts specified in section 401 (j) of the Nationality Act of 1940, as amended, notwithstanding the fact that he has not reached his majority. The appellant has therefore lost his American citizenship and was properly excluded by the Board of Special Inquiry.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant was born in the United States on April 19, 1926;
(2) That the appellant departed from the United States during February 1944 for the purpose of evading or avoiding service and training in the armed forces of the United States;
(3) That the appellant remained outside of the United States before and after September 27, 1944, for the purpose of evading or avoiding service and training in the armed forces of the United States.
(4) That the appellant applied for admission to the United States at Nogales, Ariz., on July 30, 1945, as a citizen of the United States.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the fourteenth amendment to the United States Constitution and section 1992 R.S., the appellant acquired citizenship of the United States at birth;
(2) That under section 401 (j) of the Nationality Act of 1940, as amended, the appellant lost his citizenship of the United States by remaining outside of the jurisdiction of this country in time of war for the purpose of evading or avoiding service and training in the armed forces of the United States:
(3) That under section 3 of the Immigration Act of February 5, 1917, as amended, the appellant is inadmissible to the United States as a person who has departed from the jurisdiction of the United States for the purpose of evading or avoiding service and training in the armed forces of the United States during time of war.Other Factors: The appellant stated that his parents, natives and citizens of Mexico, and his two brothers reside in the United States. He added that he did not work during his stay in Mexico but that his father sent him money while he was there.
Recommendation: It is recommended that the excluding decision of the Board of Special Inquiry be affirmed.
In accordance with 8 CFR 90.3, the case is referred to the Board of Immigration Appeals for consideration.
Discussion: The Commissioner has found that the appellant, a 19-year-old native of the United States, lost his American citizenship under section 401 (j) of the Nationality Act of 1940, as amended, and has recommended that the decision of the Board of Special Inquiry excluding him on documentary grounds be affirmed. The case has been forwarded to us for review in accordance with 8 CFR 90.3, the Commissioner in his transmitting memorandum requesting that the case be certified to the Attorney General for review in the event the Board did not see fit to follow his recommendation.
The pertinent facts in this case are set forth in the Commissioner's memorandum opinion and will not be repeated here. The sole issue presented by the record is whether a citizen of the United States can lose his American citizenship under section 401 (j) of the Nationality Act of 1940, as amended, prior to attaining his 21st birthday. The Board in Matter of A----, 56175/440 (August 3, 1945) answered this question in the negative and, for the reasons to follow, still adheres to that view.
Subsection (j) was added to section 401 of the Nationality Act of 1940 by section 1 of the act approved September 27, 1944 ( 58 Stat. 746). This subsection provides for the loss of nationality on the part of a citizen "departing from or remaining outside of the jurisdiction of the United States * * * for the purpose of evading or avoiding training and service in the land or naval forces of the United States." The amendatory legislation did not explicitly provide, either independently of the Nationality Act or by way of an amendment to that act, any age limit below which expatriation could not be effected. So far as we have been able to ascertain, this matter was never specifically considered by the framers of the legislation, the pertinent congressional committees or by the Congress as a whole during the debates on the legislation.
This being so, congressional history, and in particular quotations of general and broad statements made on the floor of the House and Senate (upon which statements the Commissioner largely relies in reaching his conclusion) can afford no concrete and accurate basis upon which the intent of Congress in this regard may be ascertained, especially, as will be shown below, when viewed in the light of the common law and the other subsections of section 401.
Prior to the enactment of the Nationality Act of 1940, expatriating statutes contained no express provision as to any age limit below which loss of citizenship could not result. But the common law, as is clear from many authoritative judicial decisions by both Federal, district, and State courts, did fix such an age limit at 21. The Supreme Court of the United States in Perkins v. Elg, 307 U.S. 325 (1939), recognized the existence of this rule when it said (p. 334):
For example, in Ex parte Chin King, 35 Fed. 354 (C.C. Oreg., 1888), the court said (p. 356): "This status (citizenship), once acquired, can only be lost or changed by the act of the party when arrived at majority * * *." Again in U.S. ex rel. Baglivo v. Day, 28 F. (2d) 44 (S.D.N.Y., 1928), it was said (p. 44): "A native-born citizen, who has not attained the age of twenty-one years, cannot renounce allegiance to the United States." The very same court had employed similar language in 1919 in Ex parte Gilroy, 257 Fed. 110, in saying (p. 119): "Until * * * relator became twenty-one years of age, he was not competent to renounce his allegiance to the United States of America." To like effect was the statement in McCampbell v. McCampbell, 13 F. Supp. 847 (W.D. Ky., 1936), the court there saying (p. 849), "There are no exceptions to the rule than an infant lacks the power to renounce his allegiance to the United States." Like language was employed by courts of highest resort in the states of New York and Vermont in Ludlam v. Ludlam, 26 N.Y. 356, 376 (1863) and State ex rel. Phelps v. Jackson, 79 Vt. 504, 514 (1907), respectively. For additional authorities see U.S. ex rel. Wrona v. Karnuth, 14 F. Supp. 770 (W.D.N.Y., 1936); In re Cordaro, 246 Fed. 735 (N.D. Iowa, 1917); In re Spitzer, 160 Fed. 137 (C.C. Ill., 1908); Nationality of Minors, 14 B.U.L.R. 524, 536; Involuntary Expatriation of Minor Children, 7 Geo. Wash. L.R. 639, 645; Citizenship and Expatriation of Minors under Nationality Act of 1940, 35 Ill. L.R. 607, 609, 610; 34 Col. L.R. 1366. In re Carver, 142 Fed. 623, 624 (C.C. Maine, 1905), cited by the Commissioner in his memorandum as reflecting a contrary view, does not appear to be in point. The statement by the court that a less than eighteen year old army deserter might lose his rights to citizenship under sections 1996 and 1998 of the Revised Statutes upon conviction for desertion was obiter dictum. Moreover the statutes there concerned dealt, at least on their face, not with loss of citizenship but loss of rights of citizenship. Cf. Weedin v. Chin Bow, 274 U.S. 657 (1927); Shelley v. United States, 120 F. (2d) 734 (Ct.App.D.C., 1941); Matter of P----, 56011/385 (approved by the Attorney General November 22, 1941).
To cause a loss of that citizenship (acquired through birth in the United States) in the absence of treaty or statute having that effect, there must be voluntary action and such action cannot be attributed to an infant * * * who during minority is incapable of a binding choice.
The Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898) had suggested the existence of this principle when it said (p. 704), "No doubt he might himself, after coming of age, renounce this citizenship * * *. Whether any act of himself, or of his parents, during his minority, could have the same effect, is at least doubtful."
The administrative view, except so far as concerned a minor's loss of citizenship through the naturalization of his parents in a foreign country (subsequently reversed by the Supreme Court in the Elg case, supra, was in accord.
See Report of the President's Committee on Codification of the Nationality Laws of the United States, 76th Cong., 1st sess., House Committee Print, Pt. I, p. 66 for a recital of the administrative practice in this regard. As can be seen from this comment, the administrative officials, prior to the Elg decision, took the position that to preserve the principle of the singleness of allegiance of the family, a minor child took the citizenship of the parents. This discarded theory of the singleness of allegiance of the family unit might well explain the decision in the Wittus case, 47 F. (2d) 652 (D. Mich. 1931), in which it was held that a 19-year-old American woman lost her citizenship under section 3 of the act of March 2, 1907 by marriage, prior to 1922, to an alien. See also Nationality of Minors, supra, where it is said that at common law minor children and wives took the nationality of the father-husband. The Elg case made it clear that minor children did not ipso facto expatriate themselves by reason of the naturalization of their parents and a like principle logically would seem to apply to wives who married aliens during their minority.
In its comments on the proposed second proviso to section 401 of the proposed Nationality Act (which became section 403 (b) in the act) the committee, consisting of representatives of the Departments of State, Labor, and Justice, said, "It will be observed that in this subsection the age below which a person cannot expatriate himself is set at 18 years, instead of 21 years." Report of the President's Committee, supra, Pt. I, p. 69.
When the Nationality Act was finally enacted by Congress and approved on October 14, 1940, by the President, section 403 (b) read then as it reads now:
No national under 18 years of age can expatriate himself under subsections (b) to (g), inclusive, of section 401.
Obviously the express provisions of section 403 (b) with respect to the effective expatriating age had no application to either subsection (a) or (h) of section 401. Congress could not then have intended that the 18-year-old age limit was to apply to these subsections, for presumably it would have said so in 403 (b). It did specifically provide in the provisos to subsection (a) that 23 years was to be the age in the case of minors who acquired foreign nationality by reason of their parents' naturalization. It was silent, however, as to the first clause of subsection (a) dealing with those who obtained naturalization in a foreign state upon their own application and as to subsection (h). In adding subsections (i) and (j) to section 401 it also remained silent, nothing being said, as we indicated above, in the subsections themselves or by way of an appropriate amendment to section 403 (b).
The legislative history of the Nationality Act discloses that subsection (h) was added by the Senate after the act was passed by the House without this subsection. The draft bill submitted by the President's Committee did not contain subsection (h) as it now reads. See House Reports 2396 and 3019, and Senate Report 2150 (76th Cong., 3d sess.).
The fact that 18 years could not have been the age limit intended by Congress to apply to the above-mentioned subsections does not mean, as the Commissioner suggests, that no age limit was intended, and that Congress meant that all minor citizens, regardless of their tender years, their immaturity and the degree of parental influence and pressure that might have been exercised over them, were to be subjected to the serious penalty contemplated by these provisions. It is axiomatic that statutes in derogation of the common law must be strictly construed. Scharfeld v. Richardson, 133 F. (2d) 340, 341 (Ct.App.D.C., 1942); West Va. Pulp Paper Co. v. McElligott, 40 F. Supp. 765, 771 (S.D.N.Y., 1941); Ward v. White, 97 F. (2d) 646, 648 (Ct.App.D.C., 1938); cert. den. 304 U.S. 578; Globe Rutgers Ins. Co. v. Draper, 66 F. (2d) 985, 991 (C.C.A. 9, 1933). And where, as here, substantive rights are affected, a statute, and in particular a penal one, should not be extended by implication to include persons who do not come within its terms. Ward v. White, supra; West Va. Pulp Paper Co. v. McElligott, supra.
To construe section 401 (j) to apply to minors would, of course, be in derogation of the accepted common-law principle in the United States that minors could not expatriate themselves, a principle of which the Congress must presumably have been aware. It would accordingly mean reading into the Nationality Act words which are not there and which we must assume Congress did not intend should be there. It would be a usurpation on our part of the legislative function, which under our constitutional system is reserved to the Congress.
Finally, the Commissioner's theory logically applied must mean that the other subsections of section 401 in which no specific age limit is set apply to all minors irrespective of age. Yet, under the Service's administrative practice, with which we and the State Department are in accord, it has been held that minors cannot effectively lose their citizenship under the first clause of section 401 (a) by becoming naturalized in a foreign state on their own applications. In other words, this clause applies only to those who have attained their majority, and subsections (h), (j) to all citizens regardless of age. Such illogical and inconsistent results where precisely the same statutory language is employed cannot with any degree of conviction be said to represent the true intent of Congress. The best that can be said is that the statute so far as concerns the issue before us is ambiguous. If this be true, the Supreme Court's admonition in Perkins v. Elg, supra, p. 337, that the "rights of citizenship are not to be destroyed by an ambiguity" is applicable here and justifies our conclusion that section 401 (j) has no application to minors.
See attached copy of a memorandum, dated September 30, 1944, prepared in the office of the Legal Adviser to the Department of State. We have been authorized to say that this memorandum represents the views of that Department. (Not attached here.)
We fully appreciate the force of the arguments advanced by the Commissioner in support of his contention, but to us it seems that these arguments are based not on what Congress did, but on what Congress ought to have done or would have done had the specific problem been brought to its attention. Whatever may be our own personal inclinations as to the desirability, from a policy point of view, of construing 401 (j) to bring this appellant within its scope, we do not feel that we are the proper agency to bring about such a result. That is a matter which is the sole concern of the Congress. Omissions in a statute should be supplied by the legislative arm of the government and not by administrative fiat. Order: The Commissioner's order affirming the excluding decision of the board of special inquiry is reversed and the appellant is admitted as an American citizen.
The Board in Matter of V----, 56127/854 (November 11, 1943) was confronted with a similar problem involving the proper construction of sections 13 (c) and 28 (c) of the Immigration Act of 1924 in regard to the admissibility to the United States of a neutral alien who had claimed exemption from military service under the provisions of the Selective Training and Service Act of 1940, as amended. Our holding in that case (approved by the Attorney General on February 24, 1944) was on all fours with our present decision that omissions in a statute are to be supplied by congressional action and not by administrative construction. Congress did subsequently correct the defect in section 28 (c) by the enactment of Public Law 205 (79th Cong.; Ch. 437, 1st sess., approved Oct. 29, 1945).
In accordance with the Commissioner's request and as a question of difficulty is involved, the Board, pursuant to section 90.12, title 8, Code of Federal Regulations, refers its decision and order to the Attorney General for review.
The decision and order of the Board of Immigration Appeals are reversed. I feel the Congress intended that the statute apply to persons under 21 who leave the United States for the purpose of evading or avoiding training and service in the land or naval forces. The view that the Congress failed to accomplish this purpose can, of course, be presented to the courts by the persons affected, and I think under the circumstances a judicial determination of the question is desirable.