The opinion of the court was delivered by: HOLTZOFF
Over a century ago the Supreme Court of the United States remarked in a celebrated case that the for courts to endeavor to control the day-to-day administration of the executive branch of the Government would be a source of serious mischief. The expediency, the desirability, and the policy of the President's Loyalty Order may not be reviewed by the Court. Order may not be reviewed by the Court. The only question that this Court may consider is whether it is violative of the Constitution or the laws of the United States.
The attack on the President's Loyalty Order, the purpose of which is to establish a procedure for eliminating from the Government service those members of the personnel who are found to be either disloyal or bad security risks, may be divided into two aspects, one substantive and the other procedural.
From the substantive point of view, the order is attacked as violative of the First Amendment to the Constitution of the United States, which prohibits the Congress from infringing upon freedom of speech. The First Amendment safeguards one of the basic and fundamental rights of a citizen of the United States. No one would want to see it whittled away in any manner, least of all this Court.
The question presented here, however, is not whether a citizen of the United States or any inhabitant of the United States has his freedom of speech infringed by the President's Loyalty Order. The question is whether the President's Loyalty Order interferes with the rights of Government employees as such. The Government has a perfect right to pick and choose its own employees, and it would have a perfect right, if it saw fit to do so to get rid of them for making utterances, which they have a right to make under the Constitution. The Government may not imprison a person for making various utterances, but it may, if it sees fit to do so, dismiss a Government employee who makes such utterances. As was said many years ago by Mr. Justice Holmes, a great champion of personal rights, in McAuliffe v. The Mayor and Aldermen of New Bedford, 155 Mass. 216, 29 N.E. 517, where a policeman who had been discharged from the service for improper utterances sought reinstatement:
'The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.'
It seems to the Court that it is limited, and its course is charted, by the decision of the Court of Appeals in Friedman v. Schwellenbach, 81 U.S.App.D.C. 365, 159 F.2d 22, 24. This case is binding upon this Court. There Mr. Justice Miller, speaking for a unanimous bench, said:
'The United States has the right to employ such persons as it deems necessary to aid in carrying on the public business. It has the right to prescribe the qualifications of its employees and to attach conditions to their employment. The War Service Regulation which permits the removal from Federal service of one concerning whose loyalty to the government the Civil Service Commission entertains a reasonable doubt undoubtedly was reasonable and proper and the making of it was well within the scope of the authority conferred on the Commission by the Act and the two Executive orders.'
'In these circumstances the Commission's finding is conclusive.'
It is urged, however, that the decision of the Supreme Court in United States v. Lovett, 328 U.S. 303, 66 S. Ct. 1073, 90 L. Ed. 1252, should lead to a contrary result. In that case the Court had for consideration a provision of an appropriation act, the pertinent portions of which are as follows:
'No part of any appropriation, allocation, or fund (1) which is made available under or pursuant to this pact, or (2) which is now, or which is hereafter made, available under or pursuant to any other pact, to any department, agency, or instrumentality of the United States, shall be used * * to pay any part of the salary, or other compensation for the personal services of * * * ' (three named individuals). 57 Stat. 450, § 304.
There have been other occasions on which the Congress has included a proviso in an appropriation act that no part of the funds thereby appropriated shall be used to pay the salaries of a certain named person. The validity of such a provision has never been successfully attacked.
In the Lovett case, however, Congress went further than that. It provided that no funds which might thereafter be made available shall be used to pay the salaries of certain individuals. The Supreme Court quite naturally construed this provision as meaning that the named individuals may never be employed by the United States Government in the future, and accordingly it held this proviso unconstitutional as a Bill of Attainder.
The Congress has no authority, under our tripartite division of the Government, to appoint persons to the Executive branch of the Government or to provide that certain named persons shall not be appointed by the President. That would be an unconstitutional limitation on the President's power ...