Anti-Fascist Committee v. McGrath
In Anti-Fascist Committee v. McGrath, 341 U. S. 123 (1951), an organization was put on the Attorney General's list, as disloyal to the United States, without a hearing before the Attorney General.
The Executive Order, as defined by implementing regulations, required the Executive to make an "appropriate determination" of disloyalty.
It was apparent that members of organizations employed by the Government who belonged to an organization on the Attorney General's list would be in danger of losing their jobs.
The Court held, assuming the facts as alleged by the complaints were true, that it would be arbitrary, and not consistent with an "appropriate determination," to deny a hearing on the matter to the affected organizations.
As Mr. Justice Frankfurter observed in his concurring opinion, "the heart of the matter is that democracy implies respect for the elementary rights of men, however suspect or unworthy; a democratic government must therefore practice fairness; and fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights." Id., at 170.
In Anti-Facist Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951), Mr. Justice Frankfurter observed in his concurring opinion that this policy "reflects the tradition that courts, having final power, can exercise it most wisely by restricting themselves to situations in which decision is necessary.
In part, it is founded on the practical wisdom of not coming prematurely or needlessly in conflict with the executive or legislature." Id. at 155, 71 S.Ct. at 639-640.