Constitutional Law – Citizenship – Draft -Avoidance Statute Declared Unconstitutional

In 1951 plaintiff, a native-born American citizen, went to England for temporary work, as a physician and research physiologist. In 1953 his draft board ordered him to report for induction but he failed to comply with the order. The State Department then issued an administrative order expatriating plaintiff for remaining outside the United States for the purpose of avoiding service in the armed forces in violation of section 349 (a) (10) of the Immigration and Nationality Act of 1952. In a declaratory judgment suit before a three-judge court, held, section 349 (a) (10) is unconstitutional. Expatriation of United States citizens for draft avoidance is a cruel and unusual punishment which violates the eighth amendment. Cort v. Herter, 187 F. Supp. 688 (D.D.C. 1960), jurisdictional question postponed, 365 U.S. 808 (1961).