(concurring).
I wish to base my concurrence on what is a somewhat narrower ground than my brother Frank, as I understand him. The case comes to us on a record which, as he says, compels us to assume that the Attorney General has hitherto in all cases postponed deportation while a bill to admit the alien has been pending in Congress. This practice may never in fact have covered the case of an alien whose presence the Attorney General has found to be prejudicial to the interests of the United States; and it can be argued that we should not assume that it has gone so far. However, since it is alleged to have been a general practice, we should accept the allegation as it reads, unless the return denies that it has ever covered cases like the relator’s. The absence of any such denial and of any ex,cuse seems to me to present an unrelieved instance of administrative caprice, which we may not ignore.
The absence of any denial would not in my judgment lead to a grant of the writ, if it were supplied by the excuse which I shall mention; and it is in this that I may not be in accord with Judge Frank. To continue the analogy of the old course of pleadings, the return, instead of denying the applicability of the practice to the relator might have pleaded in confession and avoidance, that the Attorney General has found that the alien’s continued presence in the United States would be prejudicial to its interests, even though she were detained at Ellis Island. I should accept that plea as a defense, because I think that no court has power to inquire whether it is supported by the facts; it is enough that on its face it is not beyond the possible reach of the discretion conferred. Such a finding would be altogether different from the finding already made that the alien’s admission as a resident would be prejudicial to the interests of the United States. It may be argued that it ought to be implied from the order of deportation itself; but I think that that is not true. The order may have been made because the practice never covered such a case; and, that aside, it appears to me that the exercise of so drastic and absolute a power should not be left to implication, but should be expressly avowed. There is some genuine protection in insisting upon bringing into the clear the basis of such official action, even though a court may inquire no further. Hence, in spite of the absence of any denial of the applicability of the practice, I should have voted to affirm the order, if it had contained an allegation that the Attorney General had found that the detention of the alien, even though in custody, was prejudicial to the interests of the United States. Since, however, it contained neither a denial, nor such an excuse, I agree that the order must be reversed, and the cause remanded with leave to the respondent to replead.