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QUARANTINE CASES
In 1904 it was held that a New York statute prohibiting the manufacture or sale of any adulterated food or drug, or the coloring or coating of food whereby it is made to appear better than it really is, was not, as applied to imported coffee, repugnant to either the commerce clause or the Meat Inspection Act of 1890,[989] prohibiting the importation into the United States of adulterated and unwholesome food, but as exertion by the State of power to legislate for the protection of the health and safety of the community and to provide against deception and fraud.[990] And in 1912 it was held that an Indiana statute regulating the sale of concentrated commercial feeding stuff and requiring the disclosure of ingredients by certificate and label, and providing for inspection and analysis, was not in conflict with the Pure Food and Drugs Act of 1906.[991] However, when Wisconsin about the same time passed an act requiring that when certain commodities were offered for sale in that State they should bear the label required by State law and no other, she was informed that she could not validly apply it to articles which had been labeled in accordance with the federal statute nor did it make any difference that the goods in question had been removed from the container in which they had been shipped into the State, inasmuch as they could still be proceeded against under the act of Congress.[992] The original package doctrine, it was added, "was not intended to limit the right of Congress, * * *, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to choose appropriate means to that end."[993] But a North Dakota statute requiring that lard compound or substitutes, unless sold in bulk, should be put up in pails or containers holding one, three, or five pounds net weight, or some multiple of these numbers, was held not to be repugnant to the Pure Food and Drugs Act.[994] On the other hand, a decade later the Court found that the Plant Quarantine Act of 1912, as amended in 1917,[995] had so completely occupied the field indicated by its title that a State was left without power to prevent the importation of plants infected by a particular disease to which the Secretary of Agriculture's regulations did not apply.[996] Congress promptly intervened by further amending the federal statute to permit the States to impose quarantines in such overlooked cases.[997]
RECENT CASES SUSTAINING STATE LEGISLATION
In 1935, it was held[998] that an order of the New York Commissioner of Agriculture prohibiting the importation of cattle for dairy or breeding purposes unless such cattle and the herds from which they come had been certified by the chief sanitary officer of the State of origin as being free from Bang's disease, was not in conflict with the Cattle Contagious Diseases Acts.[999] In 1937, it was ruled[1000] that a Georgia statute fixing maximum charges for handling and selling leaf tobacco did not, as applied to sales of tobacco destined for export, conflict with the Tobacco Inspection Act.[1001] In 1942,[1002] it was held that an order of the Wisconsin Employment Relations Board which commanded a union, its agents, and members, to desist from mass picketing of a factory, threatening personal injury or property damage to employees desiring to work, obstructing the streets about the factory, and picketing the homes of employees, was not in conflict with the National Labor Relations Act,[1003] to which the employer was admittedly subject but which had not been invoked. An "intention of Congress," said the Court, "to exclude States from exerting their police power must be clearly manifested."[1004] In 1943,[1005] the Court sustained the marketing program for the 1940 California raisin crop, adopted pursuant to the California Agricultural Prorate Act. Although it was conceded that the program and act operated to eliminate competition among producers concerning terms of sale and price as to product destined for the interstate market, they were held not to conflict with the commerce clause or with the Sherman Act or the Agricultural Marketing Agreement Act.[1006] To the contrary, said Chief Justice Stone, speaking for the unanimous court, the program "is one which it has been the policy of Congress to aid and encourage through federal agencies" under federal act.[1007] The case was not one, he further observed, which was to be resolved by "mechanical test," but with the object in view of accommodating "the competing demands of the State and national interests involved."[1008] In 1944,[1009] the Court upheld the right of Minnesota to exclude from its courts a firm licensed by the National Government to carry on the business of customs broker because of its failure to comply with a State statute requiring foreign corporations to obtain a license to do business in the State. Speaking for the Court, Justice Frankfurter, again disparaged "the generalities" to which certain cases had given utterance. Actually, he asserted, "the fate of State legislation in these cases has not been determined by these generalities but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular instances."[1010] In cases, decided in 1947,[1011] the Court ruled that Indiana had not violated the Natural Gas Act[1012] by attempting to regulate the rates for natural gas sold within the State by an interstate pipe line company to local industrial consumers; and that Illinois was not precluded by the Commodity Exchange Act[1013] from imposing upon grain exchanges doing business within her borders regulations not at variance with the provisions of the act or with regulations promulgated under it by the Secretary of Agriculture. Nor, it was held by a bare majority of the Court in 1949, did the Motor Carrier Act of 1935, as amended in 1942,[1014] prevent California from prohibiting the sale or arrangement of any transportation over its public highways if the transporting carrier has no permit from the Interstate Commerce Commission.[1015] The opposed opinions line up most of the cases on either side of the question.
RECENT CASES NULLIFYING STATE ACTION
On the other side of the ledger appear the following cases, decided contemporaneously with those just reviewed: one in 1942 in which it was held that a gas company engaged in the business of piping natural gas from without the State of Illinois and selling it wholesale to distributors in that State was subject to the jurisdiction of the Federal Power Commission under the Natural Gas Act,[1016] and hence could not be required by the Illinois Commerce Commission to extend its facilities in the absence of a certificate of convenience from the Federal Power Commission;[1017] one, in the same year, in which it was held, by a sharply divided Court, that federal regulation of the production of renovated butter under the Internal Revenue Code[1018] prevented the State of Alabama from inspecting, seizing and detaining stock butter from which such butter was made, some of it being intended for interstate commerce;[1019] one in 1947 holding that the United States Warehouse Act, as amended,[1020] must be construed as superseding State authority to regulate licenses thereunder, and hence overruled the stricter requirements of Illinois law dealing with such subject as rate discrimination, the dual position of grain warehousemen storing their own grain, the mixing of inferior grain owned by the warehousemen with superior grain of other users of the facility, delay in loading grain, the sacrificing or rebating of storage charges, retraining desirable transit tonnage, utilizing preferred storage space, maintenance of unsafe and inadequate grain elevators, inadequate and ineffectual warehouse service, the obtaining of a license, the abandonment of warehousing service, and the rendition of warehousing service without filing and publishing rate schedules;[1021] one decided the same year in which it was held that the authority of the Federal Power Commission under the Natural Gas Act[1022] extended to and superseded State regulatory power over sales made within a State by a natural gas producing company to pipe line companies which transported the purchased gas to markets in other States;[1023] one in 1948, in which a sharply divided Court held that Michigan law governing the rights of dissenting stockholders could not be applied to embarrass a merger agreement between two railroad companies which had been approved by the Interstate Commerce Commission under the Interstate Commerce Act[1024] as "just and reasonable";[1025] and finally one decided the same year in which it was held by a unanimous Court that the Interstate Commerce Commission may, in approving the acquisition by a railroad corporation of one State of railroad lines in another, relieve such corporation from being incorporated under the laws of the latter State.[1026]
FEDERAL VERSUS STATE LABOR LAWS
One group of cases, which has caused the Court some difficulty and its attitude in which has perhaps shifted in some measure, deals with the question of the effect of the Wagner, and, latterly, of the Taft-Hartley Act on State power to govern labor union activities. In a case decided in 1945[1027] it was held that a Florida statute which required business agents of a union operating in the State to file annual reports and pay an annual fee of one dollar conflicted with the Wagner Act,[1028] standing, as the Court put it, "'as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'"[1029] In two cases decided in 1949, however, State legislation regulative of labor relations was sustained. In one a "cease and desist" order of the Wisconsin Employment Relations Board[1030] implementing the State Employment Peace Act, which made it an unfair labor practice for an employee to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike, was found not to conflict with either the Wagner or the Taft-Hartley Act,[1031] both of which, the Court asserted, designedly left open an area for State control. In the other,[1032] the Wisconsin board, acting under the same statute, was held to be within its powers in labelling as "an unfair labor practice" the discharge by an employer of an employee under a maintenance of membership clause which had been inserted in the contract of employment in 1943 under pressure from the National War Labor Board, but which was contrary to provisions of the Wisconsin Act. On the other hand, in 1950, the Court invalidated a Michigan mediation statute, and in 1951, a Wisconsin Public Utility Anti-Strike Act, on the ground that these matters were governed by the policies embodied in the Wagner and Taft-Hartley Acts.[1033]
Commerce With Indian Tribes
UNITED STATES v. KAGAMA
Congress is given power to regulate commerce "with the Indian tribes." Faced in 1886 with a Congressional enactment which prescribed a system of criminal laws for Indians living on their reservations, the Court rejected the government's argument which sought to base the act on the commerce clause. It sustained the act, however, on the following grounds: "From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this Court, whenever the question has arisen. * * * The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." Moreover, such power was operative within the States.[1034]
Obviously, this line of reasoning renders the commerce clause superfluous as a source of power over the Indian tribes; and some years earlier, in 1871, Congress had forbidden the further making of treaties with them.[1035] However, by a characteristic judicial device the effort has been made at times to absorb the doctrine of the Kagama case into the commerce clause,[1036] although more commonly the Court, in sustaining Congressional legislation, prefers to treat the commerce clause and "the recognized relations of tribal Indians," as joint sources of Congress's power.[1037] Most of the cases have arisen, in fact, in connection with efforts by Congress to ban the traffic in "fire water" with tribal Indians. In this connection it has been held that even though an Indian has become a citizen, yet so long as he remains a member of his tribe, under the charge of an Indian agent, and so long as the United States holds in trust the title to land which has been allotted him, Congress can forbid the sale of intoxicants to him.[1038] Also Congress can prohibit the introduction of intoxicating liquors into land occupied by a tribe of uncivilized Indians within territory admitted to statehood.[1039] Nor can a State withdraw Indians within its borders from the operation of acts of Congress regulating trade with them by conferring on them rights of citizenship and suffrage, whether by its constitution or its statutes.[1040] And when a State is admitted into the Union Congress may, in the enabling act, reserve authority to legislate in the future respecting the Indians residing within the new State, and may declare that existing acts of Congress relating to traffic and intercourse with them shall remain in force.[1041]
Clause 4. The Congress shall have Power * * * To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.
Naturalization and Citizenship
CATEGORIES OF NATURALIZED PERSONS
Naturalization has been defined by the Supreme Court as "the act of adopting a foreigner, and clothing him with the privileges of a native citizen, * * *"[1042] In the Dred Scott Case,[1043] the Court asserted that the power of Congress under this clause applies only to "persons born in a foreign country, under a foreign government."[1044] These dicta are much too narrow to sustain the power which Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. In the words of the Court: "As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries."[1045] By the Immigration and Nationality Act of June 27, 1952,[1046] which codifies much previous legislation, it is enacted that the following shall be citizens of the United States at birth:
"(1) a person born in the United States, and subject to the jurisdiction thereof;
"(2) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
"(3) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
"(4) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
"(5) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
"(6) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
"(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."[1047] By the same act, "persons born in the Canal Zone and Panama after February 26, 1904, one or both of whose parents were at the time of birth of such person citizens of the United States, are declared to be citizens of the United States; as likewise are of certain categories of persons born in Puerto Rico, Alaska, Hawaii, the Virgin Islands and Guam on or after certain stated dates."[1048]
WHO ARE ELIGIBLE FOR NATURALIZATION
Naturalization is a privilege to be given, qualified, or withheld as Congress may determine, which an alien may claim only upon compliance with the terms which Congress imposes. Earlier the privilege was confined to white persons and persons of African descent, but was extended by the Act of December 17, 1943, to descendants of races indigenous to the Western Hemisphere and Chinese persons or persons of Chinese descent;[1049] and by the Act of June 27, 1952, "the rights of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because the person is married."[1050] But, any person "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches * * *" opposition to all organized government, or "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the Government of the United States" may not be naturalized as a citizen of the United States.[1051] These restrictive provisions are, moreover, "applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or after such filing and before taking the final oath of citizenship is, or has been found to be within any of the classes enumerated within this section, notwithstanding that at the time the petition is filed he may not be included within such classes."[1052]
THE PROCEDURE OF NATURALIZATION
This involves as its principal and culminating event the taking in open court by the applicant of an oath: "(1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5)(A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by law."[1053] Any naturalized person who takes this oath with mental reservations or conceals beliefs and affiliations which under the statute disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.[1054] Furthermore, if a naturalized person shall within five years "following his naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have precluded such person from naturalization under the provisions of section 313, it shall be considered prima facie evidence that such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the revocation and setting aside of the order admitting such person to citizenship and the cancellation of the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation. * * *" [1055]
RIGHTS OF NATURALIZED PERSONS
Chief Justice Marshall early stated the dictum that "a naturalized citizen * * * become[s] a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual."[1056] A similar idea was expressed in 1946 in Knauer v. United States:[1057] "Citizenship obtained through naturalization is not a second-class citizenship. * * * [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government."[1058] But, as shown above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the United States inquired into, and to lose his citizenship if lack of such faith is shown in proper proceedings.[1059] Also, "a person who has become a national by naturalization" may lose his nationality by "having a continuous residence for three years in the territory of a foreign state of which he was formerly a national or in which the place of his birth is situated," or by "having a continuous residence for five years in any other foreign state or states."[1060] However, in the absence of treaty or statute to the contrary effect, a child born in the United States who is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, does not thereby lose his American citizenship provided that on attaining his majority he elects to retain it and returns to the United States to assume its duties.[1061]
CONGRESS' POWER EXCLUSIVE
Congress' power over naturalization is an exclusive power. A State cannot denationalize a foreign subject who has not complied with federal naturalization law and constitute him a citizen of the United States, or of the State, so as to deprive the federal courts of jurisdiction over a controversy between him and a citizen of a State.[1062] But power to naturalize aliens may be, and early was, devolved by Congress upon state courts having a common law jurisdiction.[1063] Also States may confer the right of suffrage upon resident aliens who have declared their intention to become citizens, and have frequently done so.[1064]
RIGHT OF EXPATRIATION: LOSS OF CITIZENSHIP
Notwithstanding evidence in early court decisions[1065] and in the Commentaries of Chancellor Kent of a brief acceptance of the ancient English doctrine of perpetual and unchangeable allegiance to the government of one's birth, whereby a citizen is precluded from renouncing his allegiance without permission of that government, the United States, since enactment of the act of 1868,[1066] if indeed not earlier, has expressly recognized the right of everyone to expatriate himself and choose another country. Retention of citizenship is not dependent entirely, however, upon the desires of the individual; for, although it has been "conceded that a change of citizenship cannot be arbitrarily imposed, that is, imposed without the concurrence of the citizen," the United States, by virtue of the powers which inhere in it as a sovereign nation, has been deemed competent to provide that an individual voluntarily entering into certain designated conditions shall, as a consequence thereof, suffer the loss of citizenship.[1067]
Exclusion of Aliens
The power of Congress "to exclude aliens from the United States and to prescribe the terms and conditions on which they come in" is absolute, being an attribute of the United States as a sovereign nation. In the words of the Court: "That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. * * * The United States, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory."[1068] By the Immigration and Nationality Act of June 27, 1952, some thirty-one categories of aliens are excluded from the United States[1069] including "aliens who are, or at any time have been, members * * * of or affiliated with any organization that advocates or teaches * * * the overthrow by force, violence, or other unconstitutional means of the Government of the United States * * *"[1070]
With this power of exclusion goes also the power to assert a considerable degree of control over aliens after their admission to the country. By the Alien Registration Act of 1940[1071] it was provided that all aliens in the United States, fourteen years of age and over, should submit to registration and finger printing, and wilful failure to do so was made a criminal offense against the United States. This Act, taken in conjunction with other laws regulating immigration and naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens and precludes enforcement of a State registration act. Said the Court, speaking by Justice Black: "With a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in America, carefully defined qualifications are required to be met before aliens may enter our country. These qualifications include rigid requirements as to health, education, integrity, character, and adaptability to our institutions. Nor is the alien left free from the application of federal laws after entry and before naturalization. If during the time he is residing here he should be found guilty of conduct contrary to the rules and regulations laid down by Congress, he can be deported. At the time he enters the country, at the time he applies for permission to acquire the full status of citizenship, and during the intervening years, he can be subjected to searching investigations as to conduct and suitability for citizenship."[1072] The Act of June 27, 1952, repeats these requirements of the Act of 1940.[1073]
Recent cases underscore the sweeping nature of the powers of the National Government to exclude aliens from the United States and to deport by administrative process members of excluded classes. In Knauff v. Shaughnessy,[1074] decided early in 1950, an order of the Attorney General excluding, on the basis of confidential information, a wartime bride who was prima facie entitled to enter the United States under The War Brides Act of 1945,[1075] was held to be not reviewable by the courts; nor were regulations on which the order was based invalid as representing an undue delegation of legislative power. Said the Court: "Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power, e.g., as was done here, for the best interests of the country during a time of national emergency. Executive officers may be entrusted with the duty of specifying the procedures for carrying out the congressional intent."[1076]
In cases decided in March and April, 1952, comparable results were reached: The Internal Security Act of 1950, section 23, in authorizing the Attorney General to hold in custody, without bail, aliens who are members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional.[1077] Nor was it unconstitutional to deport under the Alien Registration Act of 1940[1078] a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United States to terminate its hospitality ad libitum.[1079] And a statutory provision[1080] which makes it a felony for an alien against whom a specified order of deportation is outstanding "to willfully fail or refuse to make timely application for travel or other documents necessary to his departure" is not on its face void for "vagueness."[1081]
The power of Congress to legislate with respect to the conduct of alien residents is, however, a concomitant of its power to prescribe the terms and conditions on which they may enter the United States; to establish regulations for sending out of the country such aliens as have entered in violation of law; and to commit the enforcement of such conditions and regulations to executive officers. It is not a power to lay down a special code of conduct for alien residents or to govern private relations with them. Purporting to enforce the above distinction, the Court, in 1909, held void a statutory provision which, in prohibiting the importation of "any alien woman or girl for the purpose of prostitution," provided further that whoever should keep for the purpose of prostitution "any alien woman or girl within three years after she shall have entered the United States" should be deemed guilty of a felony and punished therefor.[1082] Three Justices, however, thought the measure justifiable on the principle that "for the purpose of excluding those who unlawfully enter this country Congress has power to retain control over aliens long enough to make sure of the facts. * * * To this end it may make their admission conditional for three years. * * *" [And] "if Congress can forbid the entry * * *, it can punish those who cooperate in their fraudulent entry."[1083]
Bankruptcy
PERSONS WHO MAY BE RELEASED FROM DEBT
In an early case on circuit Justice Livingston suggested that inasmuch as the English statutes on the subject of bankruptcy from the time of Henry VIII down had applied only to traders it might "well be doubted, whether an act of Congress subjecting to such a law every description of persons within the United States, would comport with the spirit of the powers vested in them in relation to this subject."[1084] Neither Congress nor the Supreme Court has ever accepted this limited view. The first bankruptcy law, passed in 1800, departed from the English practice to the extent of including bankers, brokers, factors and underwriters as well as traders.[1085] Asserting that the narrow scope of the English statutes was a mere matter of policy, which by no means entered into the nature of such laws, Justice Story defined a law on the subject of bankruptcies in the sense of the Constitution as a law making provisions for cases of persons failing to pay their debts.[1086] This interpretation has been ratified by the Supreme Court. In Hanover National Bank v. Moyses,[1087] it held valid the Bankruptcy Act of 1898 which provided that persons other than traders might become bankrupts and that this might be done on voluntary petition. The Court has given tacit approval to the extension of the bankruptcy laws to cover practically all classes of persons and corporations,[1088] including even municipal corporations.[1089]
LIBERALIZATION OF RELIEF GRANTED
As the coverage of the bankruptcy laws has been expanded, the scope of the relief afforded to debtors has been correspondingly enlarged. The act of 1800, like its English antecedents, was designed primarily for the benefit of creditors. Beginning with the act of 1841, which opened the door to voluntary petitions, rehabilitation of the debtor has become an object of increasing concern to Congress. An adjudication in bankruptcy is no longer requisite to the exercise of bankruptcy jurisdiction. In 1867 the debtor for the first time was permitted, either before or after adjudication of bankruptcy, to propose terms of composition which would become binding upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. This measure was held constitutional,[1090] as were later acts which provided for the reorganization of corporations which are insolvent or unable to meet their debts as they mature,[1091] and for the composition and extension of debts in proceedings for the relief of individual farmer-debtors.[1092] Nor is the power of Congress limited to adjustment of the rights of creditors. The Supreme Court has also ruled that the rights of a purchaser at a judicial sale of the debtor's property are within reach of the bankruptcy power, and may be modified by a reasonable extension of the period for redemption from such sale.[1093] The sympathetic attitude with which the Court has viewed these developments is reflected in the opinion in Continental Illinois National Bank and Trust Co. v. Chicago, R.I. and P.R. Co.,[1094] where Justice Sutherland wrote, on behalf of a unanimous court: "* * * these acts, far-reaching though they may be, have not gone beyond the limit of Congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed."[1095]
CONSTITUTIONAL LIMITATIONS ON THE POWER
In the exercise of its bankruptcy powers Congress must not transgress the Fifth and Tenth Amendments. It may not take from a creditor specific property previously acquired from a debtor nor circumscribe the creditor's right to such an unreasonable extent as to deny him due process of law;[1096] neither may it subject the fiscal affairs of a political subdivision of a State to the control of a federal bankruptcy court.[1097] Since Congress may not supersede the power of a State to determine how a corporation shall be formed, supervised and dissolved, a corporation which has been dissolved by a decree of a State court may not file a petition for reorganization under the Bankruptcy Acts.[1098] But Congress may impair the obligation of a contract and may extend the provisions of the bankruptcy laws to contracts already entered into at the time of their passage.[1099] It may also empower courts of bankruptcy to entertain petitions by taxing agencies or instrumentalities for a composition of their indebtedness where the State has consented to the proceeding and the federal court is not authorized to interfere with the fiscal or governmental affairs of the petitioner.[1100] Also bankruptcy legislation must be uniform, but the uniformity required is geographic, not personal. Congress may recognize the laws of the States relating to dower, exemption, the validity of mortgages, priorities of payment and similar matters, even though such recognition leads to different results from State to State.[1101]
THE POWER NOT EXCLUSIVE
Prior to 1898 Congress exercised the power to establish "uniform laws on the subject of bankruptcies" only very intermittently. The first national bankruptcy law was not enacted until 1800 to be repealed in 1803; the second was passed in 1841 and repealed two years later; the third was enacted in 1867 and repealed in 1878.[1102] Thus during the first 89 years under the Constitution a national bankruptcy law was in existence only sixteen years altogether. Consequently the most important problems of interpretation which arose during that period concerned the effect of this clause on State law. The Supreme Court ruled at an early date that in the absence of Congressional action the States may enact insolvency laws since it is not the mere existence of the power but rather its exercise which is incompatible with the exercise of the same power by the States.[1103] Later cases were to settle further that the enactment of a national bankruptcy law does not invalidate State laws in conflict therewith but serves only to relegate them to a state of suspended animation with the result that upon repeal of the national statute they again come into operation without reenactment.[1104]
CONSTITUTIONAL STATUS OF STATE INSOLVENCY LAWS
A State is, of course, without power to enforce any law governing bankruptcies which impairs the obligation of contracts,[1105] extends to persons or property outside its jurisdiction,[1106] or conflicts with the national bankruptcy laws.[1107] Giving effect to the policy of the federal statute, the Supreme Court has held that a State statute regulating the distribution of property of an insolvent was suspended by that law,[1108] and that a State court was without power to proceed with pending foreclosure proceedings after a farmer-debtor had filed a petition in the federal bankruptcy court for a composition or extension of time to pay his debts.[1109] A State law governing fraudulent transfers was found to be compatible with the act of Congress,[1110] as was a statute which provided that a discharge in bankruptcy should be unavailing to terminate the suspension of the driver's license of a person who failed to pay a judgment rendered against him for damages resulting from his negligent operation of a motor vehicle.[1111] If a State desires to participate in the assets of a bankrupt it must submit to the appropriate requirements of the Bankruptcy Court with respect to the filing of claims by a designated date; it cannot assert a claim for taxes by filing a demand therefor at a later date.[1112]
Clauses 5 and 6. The Congress shall have Power * * * To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.
* * * To provide for the Punishment of counterfeiting the Securities and current Coin of the United States.
Fiscal and Monetary Powers of Congress
COINAGE, WEIGHTS AND MEASURES
The power "to coin money" and "regulate the value thereof" has been broadly construed to authorize regulation of every phase of the subject of currency. Congress may charter banks and endow them with the right to issue circulating notes,[1113] and may restrain the circulation of notes not issued under its own authority.[1114] To this end it may impose a prohibitive tax upon the circulation of the notes of State banks[1115] or of municipal corporations.[1116] It may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. A plaintiff who sought payment for the gold coin and certificates thus surrendered in an amount measured by the higher market value of gold, was denied recovery on the ground that he had not proved that he would suffer any actual loss by being compelled to accept an equivalent amount of other currency.[1117] Inasmuch as "every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, therefore, assumed with reference to that power,"[1118] the Supreme Court sustained the power of Congress to make Treasury notes legal tender in satisfaction of antecedent debts,[1119] and, many years later, to abrogate the clauses in private contracts calling for payment in gold coin, even though such contracts were executed before the legislation was passed.[1120] The power to coin money also imports authority to maintain such coinage as a medium of exchange at home, and to forbid its diversion to other uses by defacement, melting or exportation.[1121]
THE PUNISHMENTS OF COUNTERFEITING
In its affirmative aspect this clause has been given a narrow interpretation; it has been held not to cover the circulation of counterfeit coin or the possession of equipment susceptible of use for making counterfeit coin.[1122] At the same time the Supreme Court has rebuffed attempts to read into this provision a limitation upon either the power of the States or upon the powers of Congress under the preceding clause. It has ruled that a State may punish the utterance of forged coins.[1123] On the ground that the power of Congress to coin money imports "the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation,"[1124] it has sustained federal statutes penalizing the importation or circulation of counterfeit coin,[1125] or the willing and conscious possession of dies in the likeness of those used for making coins of the United States.[1126] In short, the above clause is entirely superfluous. Congress would have had the power which it purports to confer under the necessary and proper clause; and the same is the case with the other enumerated crimes which it is authorized to punish. The enumeration was unnecessary and is not exclusive.[1127]
THE BORROWING POWER VERSUS THE FISCAL POWER
Usually the aggregate of the fiscal and monetary powers of the National Government—to lay and collect taxes, to borrow money and to coin money and regulate the value thereof—have reinforced each other, and, cemented by the necessary and proper clause, have provided a secure foundation for acts of Congress chartering banks and other financial institutions,[1128] or making its treasury notes legal tender in the payment of antecedent debts.[1129] But in 1935 the opposite situation arose—one in which the power to regulate the value of money collided with the obligation incurred in the exercise of the power to borrow money. By a vote of eight-to-one the Supreme Court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to effectuate the monetary policies of Congress.[1130] In a concurring opinion Justice Stone declined to join with the majority in suggesting that "the exercise of the sovereign power to borrow money on credit, which does not override the sovereign immunity from suit, may nevertheless preclude or impede the exercise of another sovereign power, to regulate the value of money; or to suggest that although there is and can be no present cause of action upon the repudiated gold clause, its obligation is nevertheless, in some manner and to some extent, not stated, superior to the power to regulate the currency which we now hold to be superior to the obligation of the bonds."[1131]
Clause 7. The Congress shall have Power * * * To establish Post Offices and post Roads.
The Postal Power
"ESTABLISH"
The great question raised in the early days with reference to the postal clause concerned the meaning to be given to the word "establish"—did it confer upon Congress the power to construct post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and post roads? As late as 1855 Justice McLean stated that this power "has generally been considered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither under the commerce power nor the power to establish post roads could Congress construct a bridge over a navigable water.[1132] A decade earlier, however, the Court, without passing upon the validity of the original construction of the Cumberland Road, held that being "charged, * * *, with the transportation of the mails," Congress could enter a valid compact with the State of Pennsylvania regarding the use and upkeep of the portion of the road lying in that State.[1133] The debate on the question was terminated in 1876 by the decision in Kohl v. United States[1134] sustaining a proceeding by the United States to appropriate a parcel of land in Cincinnati as a site for a post office and courthouse.
POWER TO PROTECT THE MAILS
The postal powers of Congress embrace all measures necessary to insure the safe and speedy transit and prompt delivery of the mails.[1135] And not only are the mails under the protection of the National Government, they are in contemplation of law its property. This principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a State toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.[1136] Half a century later it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of the mails.[1137]
ANTI-SLAVERY AND THE MAILS
Prompted by the efforts of Northern anti-slavery elements to disseminate their propaganda in the Southern States through the mails, President Jackson, in his annual message to Congress in 1835, suggested "the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection."[1138] In the Senate John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine what is and what is not calculated to disturb their security. He expressed the fear that if Congress might determine what papers were incendiary, and as such prohibit their circulation through the mail, it might also determine what were not incendiary and enforce their circulation.[1139]
POWER TO PREVENT HARMFUL USE OF THE POSTAL FACILITIES
Some thirty years later Congress passed the first of a series of acts to exclude from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson,[1140] the Court sustained the exclusion of circulars relating to lotteries on the general ground that "the right to designate what shall be carried necessarily involves the right to determine what shall be excluded."[1141] The leading fraud order case, decided in 1904, holds to the same effect.[1142] Pointing out that it is "an indispensable adjunct to a civil government," to supply postal facilities, the Court restated its premise that the "legislative body in thus establishing a postal service, may annex such conditions to it as it chooses."[1143] Later cases appear to have qualified these sweeping declarations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness and circulation and that all paid advertisements in such publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications. Chief Justice White warned that the Court by no means intended to imply that it endorsed the government's "broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition * * *"[1144] Again, in Milwaukee Social Democratic Publishing Co. v. Burleson,[1145] where the Court sustained an order of the Postmaster General excluding from the second-class privilege a newspaper which he found to have systematically published matter banned by the Espionage Act of 1917, the claim of absolute power in Congress to withhold this privilege was sedulously avoided. More recently, when reversing an order denying the second-class privilege to a mailable publication because of the poor taste and vulgarity of its contents, on the ground that the Postmaster General exceeding his statutory authority, Justice Douglas assumed, in the opinion of the Court, "that Congress has a broad power of classification and need not open second-class mail to publications of all types."[1146]
THE EXCLUSION POWER AS AN ADJUNCT TO OTHER POWERS
In the cases just reviewed the mails were closed to particular types of communication which were deemed to be harmful. A much broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935.[1147] To induce compliance with the regulatory requirements of that act, Congress denied the privilege of using the mails for any purpose to holding companies which failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. While it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid,[1148] it declared that "Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province, * * *."[1149]
STATE REGULATIONS AFFECTING THE MAILS
In determining the extent to which State laws may impinge upon persons or corporations whose services are utilized by Congress in executing its postal powers, the task of the Supreme Court has been to determine whether particular measures are consistent with the general policies indicated by Congress. Broadly speaking, the Court has approved regulations which have a trivial or remote relation to the operation of the postal service, while disallowing those which constitute a serious impediment to it. Thus a State statute which granted to one company an exclusive right to operate a telegraph business in the State was found to be incompatible with a federal law which, in granting to any telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of State monopolies in a field which Congress was entitled to regulate in the exercise of its combined power over commerce and post roads.[1150] An Illinois statute which, as construed by the State courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this clause.[1151] But a Minnesota statute which required intrastate trains to stop at county seats was found to be unobjectionable.[1152] Local laws classifying postal workers with railroad employees for the purpose of determining a railroad's liability for personal injuries,[1153] or subjecting a union of railway mail clerks to a general law forbidding any "labor organization" to deny any person membership because of his race, color or creed,[1154] have been held not to conflict with national legislation or policy in this field. Despite the interference pro tanto with the performance of a federal function, a State may arrest a postal employee charged with murder while he is engaged in carrying out his official duties,[1155] but it cannot punish a person for operating a mail truck over its highways without procuring a driver's license from State authorities.[1156]
Clause 8. The Congress shall have Power * * * To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Copyrights and Patents
SCOPE OF THE POWER
This clause is the foundation upon which the national patent and copyright laws rest, although it uses neither of those terms. So far as patents are concerned, modern legislation harks back to the Statute of Monopolies of 1624, whereby Parliament endowed inventors with the sole right to their inventions for fourteen years.[1157] Copyright law, in turn, traces back to the statute of 1710 which secured to authors of books the sole right of publishing them for designated periods.[1158] Congress was not, however, by this provision, vested with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. Its power is limited as to subject matter, and as to the purpose and duration of the rights granted. Only the writings and discoveries of authors and inventors may be protected, and then only to the end of promoting science and the useful arts.[1159] While Congress may grant exclusive rights only for a limited period, it may extend the term upon the expiration of the period originally specified, and in so doing may protect the rights of purchasers and assignees.[1160] The copyright and patent laws do not have, of their own force, any extraterritorial operation.[1161]
PATENTABLE DISCOVERIES
The protection afforded by acts of Congress under this clause is limited to new and useful inventions,[1162] and while a patentable invention is a mental achievement,[1163] yet for an idea to be patentable it must have first taken physical form.[1164] Despite the fact that the Constitution uses the term "discovery" rather than "invention," a patent may not issue for the discovery of a hitherto unknown phenomenon of nature; "if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."[1165] Conversely, the mental processes which are thus applied must display "more ingenuity * * * than the work of a mechanic skilled in the art";[1166] and while combination patents have been at times sustained,[1167] the accumulation of old devices is patentable "only when the whole in some way exceeds the sum of its parts."[1168] The Court's insistence on the presence of "inventive genius" as the test of patentability goes far back and has been reiterated again and again in slightly varying language,[1169] although it seems to have had little effect on the point of view of the Patent Office.[1170]
PROCEDURE IN ISSUING PATENTS
The standard of patentability is a constitutional standard, and the question of the validity of a patent is a question of law.[1171] Congress may authorize the issuance of a patent for an invention by a special, as well as by general law, provided the question as to whether the patentees device is in truth an invention is left open to investigation under the general law.[1172] The function of the Commissioner of Patents in issuing letters patent is deemed to be quasi-judicial in character. Hence an act granting a right of appeal from the Commission to the Court of Appeals for the District of Columbia is not unconstitutional as conferring executive power upon a judicial body.[1173]
NATURE AND SCOPE OF THE RIGHT SECURED
The leading case bearing on the nature of the rights which Congress is authorized to secure is that of Wheaton v. Peters. Wheaton charged Peters with having infringed his copyright on the twelve volumes of "Wheaton's Reports" wherein are reported the decisions of the United States Supreme Court for the years from 1816 to 1827 inclusive. Peters's defense turned on the proposition that inasmuch as Wheaton had not complied with all of the requirements of the act of Congress, his alleged copyright was void. Wheaton, while denying this assertion of fact, further contended that the statute was only intended to secure him in his pre-existent rights at common law. These at least, he claimed, the Court should protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of the common law which protected an author in the sole right to continue to publish a work once published. It denied, in the second place, that there is any principle of law, common or otherwise, which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held, did the word "securing" in the Constitution recognize the alleged common law principle which Wheaton invoked. The exclusive right which Congress is authorized to secure to authors and inventors owes its existence solely to the acts of Congress securing it,[1174] from which it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose.[1175]
In giving to authors the exclusive right to dramatize any of their works, Congress did not exceed its powers under this clause. Even as applied to pantomime dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which they were clothed.[1176] But the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. The latter can be protected, if at all, only by letters patent.[1177] Since copyright is a species of property distinct from the ownership of the equipment used in making copies of the matter copyrighted, the sale of a copperplate under execution did not pass any right to print and publish the map which the copperplate was designed to produce.[1178] A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.[1179]
POWER OF CONGRESS OVER PATENT RIGHTS
Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the Government without just compensation.[1180] Congress may, however, modify rights under an existing patent, provided vested property rights are not thereby impaired,[1181] but it does not follow that it may authorize an inventor to recall rights which he has granted to others or reinvest in him rights of property which he had previously conveyed for a valuable and fair consideration.[1182] Furthermore, the rights which the present statutes confer are subject to the Anti-Trust Acts, though it can be hardly said that the cases in which the Court has endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden by those acts exhibit entire consistency in their holdings.[1183]
STATE POWER AFFECTING PATENTS AND COPYRIGHTS
Nor do the patent laws displace the police or taxing powers of the States. Whatever rights are secured to inventors must be enjoyed in subordination to the general authority of the State over all property within its limits. A statute of Kentucky requiring the condemnation of illuminating oils which were inflammable at less than 130 degrees Fahrenheit, was held not to interfere with any right secured by the patent laws, although the oil for which the patent was issued could not be made to comply with State specifications.[1184] In the absence of federal legislation, a State may prescribe reasonable regulations for the transfer of patent rights so as to protect its citizens from fraud. Hence a requirement of State law that the words "given for a patent right" appear on the face of notes given in payment for such right is not unconstitutional.[1185] Royalties received from patents or copyrights are subject to a nondiscriminating State income tax, a holding to the contrary in 1928 having been subsequently overruled.[1186]
TRADE-MARKS AND ADVERTISEMENTS
In the famous Trade-Mark Cases,[1187] decided in 1879, the Supreme Court held void acts of Congress which, in apparent reliance upon this clause, extended the protection of the law to trade-marks registered in the Patent Office. "The ordinary trade-mark" said Justice Miller for the Court, "has no necessary relation to invention or discovery"; nor is it to be classified "under the head of writings of authors." It does not "depend upon novelty, invention, discovery, or any work of the brain."[1188] Not many years later the Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyright,[1189] while still more recently a circus poster was held to be entitled to the same protection. In answer to the objection of the Circuit Court that a lithograph which "has no other use than that of a mere advertisement * * * (would not be within) the meaning of the Constitution," Justice Holmes summoned forth the shades of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition that it is not for the courts to attempt to judge the worth of pictorial illustrations outside the narrowest and most obvious limits.[1190]
Clause 9. The Congress shall have Power * * * To constitute Tribunals inferior to the supreme Court; See article III, p. 528.
Clause 10. The Congress shall have Power * * * To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.
Piracies, Felonies, and Offenses Against the Law of Nations
ORIGIN OF THE CLAUSE
"When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among civilized nations of Europe, as their public law. * * * The faithful observance of this law is essential to national character, * * *"[1191] These words of Chancellor Kent expressed the view of the binding character of International Law which was generally accepted at the time the Constitution was adopted. During the Revolutionary War, Congress took cognizance of all matters arising under the law of nations and professed obedience to that law.[1192] Under the Articles of Confederation, it was given exclusive power to appoint courts for the trial of piracies and felonies committed on the high seas, but no provision was made for dealing with offenses against the law of nations.[1193] The draft of the Constitution submitted to the Convention of 1787 by its Committee of Detail empowered Congress "to declare the law and punishment of piracies and felonies committed on the high seas, and the punishment of counterfeiting the coin of the United States, and of offences against the law of nations."[1194] In the debate on the floor of the Convention the discussion turned on the question as to whether the terms, "felonies" and the "law of nations," were sufficiently precise to be generally understood. The view that these terms were often so vague and indefinite as to require definition eventually prevailed and Congress was authorized to define as well as punish piracies, felonies and offenses against the law of nations.[1195]
DEFINITION OF OFFENSES
The fact that the Constitutional Convention considered it necessary to give Congress authority to define offenses against the law of nations does not mean that in every case Congress must undertake to codify that law or mark its precise boundaries before prescribing punishments for infractions thereof. An act punishing "the crime of piracy, as defined by the law of nations" was held to be an appropriate exercise of the constitutional authority to "define and punish" the offense, since it adopted by reference the sufficiently precise definition of International Law.[1196] Similarly, in Ex parte Quirin,[1197] the Court found that by the reference in the Fifteenth Article of War to "offenders or offenses that * * * by the law of war may be triable by such military commissions * * *," Congress had "exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."[1198] Where, conversely, Congress defines with particularity a crime which is "an offense against the law of nations," the law is valid, even if it contains no recital disclosing that it was enacted pursuant to this clause. Thus the duty which the law of nations casts upon every government to prevent a wrong being done within its own dominion to another nation with which it is at peace, or to the people thereof, was found to furnish a sufficient justification for the punishment of the counterfeiting within the United States, of notes, bonds and other securities of foreign governments.[1199]
EXTRATERRITORIAL REACH OF THE POWER
Since this clause contains the only specific grant of power to be found in the Constitution for the punishment of offenses outside the territorial limits of the United States, a lower federal court held in 1932[1200] that the general grant of admiralty and maritime jurisdiction by article III, section 2, could not be construed as extending either the legislative or judicial power of the United States to cover offenses committed on vessels outside the United States but not on the high seas. Reversing that decision, the Supreme Court held that this provision "cannot be deemed to be a limitation on the powers, either legislative or judicial, conferred on the National Government by article III, Sec. 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to both the States and the National Government powers which were common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of every grade committed on them while in foreign territorial waters."[1201] Within the meaning of this section an offense is committed on the high seas even where the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.[1202]
Clauses 11, 12, 13, and 14. The Congress shall have power * * *:
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.
To provide and maintain a Navy.
To make Rules for the Government and Regulation of the land and naval Forces.
The War Power
SOURCE AND SCOPE
Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,[1203] Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by article I, section 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.[1204] Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland[1205] he listed the power "to declare and conduct a war"[1206] as one of the "enumerated powers" from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex Parte Milligan, Chief Justice Chase described the power to declare war as "necessarily" extending "to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns."[1207] In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,[1208] the Court referred to "the war power" as a single unified power.[1209]
AN INHERENT POWER
Thereafter we find the phrase, "the war power," being used by both Chief Justice White[1210] and Chief Justice Hughes,[1211] the former declaring the power to be "complete and undivided."[1212] Not until 1936 however did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Export Corp.,[1213] the reasons for this conclusion were stated by Justice Sutherland as follows: "As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency—namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. * * * It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality."[1214]
A COMPLEXUS OF GRANTED POWERS
In the more recent case of Lichter v. United States,[1215] on the other hand, the Court speaks of the "war powers" of Congress. Upholding the Renegotiation Act, it declared that: "In view of this power 'To raise and support Armies, * * *' and the power granted in the same Article of the Constitution 'to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, * * *' the only question remaining is whether the Renegotiation Act was a law 'necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies."[1216] In a footnote it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander in Chief of the Army and Navy, as being "among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war, * * *"[1217]
A DECLARATION OF WAR, WHEN REQUIRED
In the first draft of the Constitution presented to the Convention of 1787 by its Committee of Detail Congress was empowered "to make war."[1218] On the floor of the Convention according to Madison's Journal "Mr. Madison and Mr. Gerry, moved to insert 'declare' striking out 'make' war; leaving to the Executive the power to repel sudden attacks"[1219] and their motion was adopted. When the Bey of Tripoli declared war upon the United States in 1801 a sharp debate was precipitated as to whether a formal declaration of war by Congress was requisite to create the legal status of war. Jefferson sent a squadron of frigates to the Mediterranean to protect our commerce but its mission was limited to defense in the narrowest sense of the term. After one of the vessels in this squadron had been engaged by, and had defeated, a Tripolitan cruiser, the latter was permitted to return home. Jefferson defended this course in a message to Congress saying, "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew."[1220] Hamilton promptly espoused a different interpretation of the power given to Congress to declare war. "It is the peculiar and exclusive province of Congress," he declared "when the nation is at peace to change that state into a state of war; whether from calculations of policy, or from provocations, or injuries received; in other words, it belongs to Congress only to go to War. But when a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war, and any declaration on the part of Congress is nugatory; it is at least unnecessary."[1221] Apparently Congress shared the view that a formal declaration of war was unnecessary. It enacted a statute which authorized the President to instruct the commanders of armed vessels of the United States to "seize and make prize of all vessels, goods and effects, belonging to the Bey of Tripoli, * * *; and also to cause to be done all such other acts of precaution or hostility as the state of war will justify, * * *"[1222]
THE PRIZE CASES, 1863
Sixty years later the Supreme Court, in sustaining the blockade of the Southern ports which Lincoln had instituted in April 1861, at a time when Congress was not in session, adopted virtually the same line of reasoning as Hamilton had advanced. "This greatest of civil wars" said the Court "was not gradually developed * * * it * * * sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact."[1223] This doctrine was sharply challenged by a powerful minority of the Court on the ground that while the President could unquestionably adopt such measures as the statutes permitted for the enforcement of the laws against insurgents, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences which ensue a state of war.[1224] Inasmuch as the Court finally conceded that the blockade had been retroactively sanctioned by Congress, that part of its opinion dealing with the power of the President, acting alone, was really obiter. But a similar opinion was voiced by Chief Justice Chase on behalf of a unanimous Court, after the war was over. In Freeborn v. The "Protector,"[1225] it became necessary to ascertain the exact dates on which the war began and ended in order to determine whether the statute of limitation had run against the asserted claim. To answer this question the Chief Justice said that "it is necessary, therefore, to refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second."[1226]
The Power To Raise and Maintain Armed Forces
PURPOSE OF SPECIFIC GRANTS
The clauses of the Constitution which give Congress authority "to raise and support armies, to provide and maintain a navy" and so forth, were not inserted for the purpose of endowing the National Government with power to do these things, but rather to designate the department of government which should exercise such powers. Moreover, they permit Congress to take measures essential to the national defense in time of peace as well as during a period of actual conflict. That these provisions grew out of the conviction that the Executive should be deprived of the "sole power of raising and regulating fleets and armies" which Blackstone attributed to the King under the British Constitution,[1227] was emphasized by Story in his Commentaries. He wrote: "Our notions, indeed, of the dangers of standing armies, in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the King possessed the power of raising armies in the time of peace according to his own good pleasure. And this prerogative was justly esteemed dangerous to the public liberties. Upon the revolution of 1688, Parliament wisely insisted upon a bill of rights, which should furnish an adequate security for the future. But how was this done? Not by prohibiting standing armies altogether in time of peace; but (as has been already seen) by prohibiting them without the consent of Parliament. This is the very proposition contained in the Constitution; for Congress can alone raise armies; and may put them down, whenever they choose."[1228]
THE TIME LIMIT ON APPROPRIATIONS FOR THE ARMY
Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that "no appropriation of money to that use shall be for a longer term than two years." In 1904 the question arose whether this provision would be violated if the Government contracted to pay a royalty for use of a patent in constructing guns and other equipment where the payments were likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution "are those only which are to raise and support armies in the strict sense of the word 'support,' and that the inhibition of that clause does not extend to appropriations for the various means which an army may use in military operations, or which are deemed necessary for the common defense, * * *"[1229] Relying on this earlier opinion, Attorney General Clark ruled in 1948 that there was "no legal objection to a request to the Congress to appropriate funds to the Air Force for the procurement of aircraft and aeronautical equipment to remain available until expended."[1230]
ESTABLISHMENT OF THE AIR FORCE
By the National Security Act of 1947[1231] there was established within the National Military Establishment "an executive department to be known as the Department of the Air Force" which was made coordinate with the Departments of the Army and the Navy. Shortly after the passage of this Act a Joint Resolution was offered in the House of Representatives, proposing an amendment to the Constitution whereby Congress would be authorized to "provide and maintain an Air Force and to make rules for the government and regulation thereof," and the President would be designated as Commander in Chief of the Air Force.[1232] Apparently in the belief that the broad sweep of the war power warranted the creation of the Air Force, without a constitutional amendment, Congress took no action on this proposal.
CONSCRIPTION
The constitutions adopted during the Revolutionary War by at least nine of the States sanctioned compulsory military service.[1233] Towards the end of the War of 1812, conscription of men for the army was proposed by James Monroe, then Secretary of War, but opposition developed and peace came before the bill could be enacted.[1234] In 1863 a compulsory draft law was adopted and put into operation without being challenged in the federal courts.[1235] Not so the Selective Service Act of 1917. This measure was attacked on the grounds that it tended to deprive the States of the right to "a well-regulated militia," that the only power of Congress to exact compulsory service was the power to provide for calling forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.[1236] Before the United States entered the first World War, the Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it in the following words: "It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers."[1237] Accordingly, in the Selective Draft Law Cases[1238] it dismissed the objection under that amendment as a contention that was "refuted by its mere statement."[1239]
CARE OF ARMED FORCES
Congress has a plenary and exclusive power to determine the age at which a soldier or seaman shall be received, the compensation he shall be allowed and the service to which he shall be assigned. This power may be exerted to supersede parents' control of minor sons who are needed for military service. Where the statute which required the consent of parents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the Government.[1240] Since the possession of government insurance payable to the person of his choice, is calculated to enhance the morale of the serviceman, Congress may permit him to designate any beneficiary he desires, irrespective of State law, and may exempt the proceeds from the claims of creditors.[1241] To safeguard the health and welfare of the armed forces, Congress may authorize the suppression of houses of ill fame in the vicinity of the places where such forces are stationed.[1242]
TRIAL AND PUNISHMENT OF OFFENSES
Under its power to make rules for the Government and regulation of the land and naval forces, Congress may provide for the trial and punishment of military and naval offenses in the manner practiced by civilized nations. This authority is independent of the judicial power conferred by article III.[1243] "Cases arising in the land and naval forces" are expressly excepted from the provision of the Fifth Amendment requiring presentment by a grand jury for capital or infamous and by implication they are also excepted from Amendment VI,[1244] which relates to the trial of criminal offenses. Also the Fifth Amendment's provision against double-jeopardy apparently does not apply to military courts.[1245] A statute which provided that offenses not specifically mentioned therein should be punished "according to the laws and customs of such cases at sea" was held sufficient to give a naval court-martial jurisdiction to try a seaman of the United States Navy for the unspecified offense of attempted desertion.[1246] In habeas corpus proceedings a court can consider only whether the military tribunal had jurisdiction to act in the case under consideration.[1247] The acts of a court-martial, within the scope of its jurisdiction and duty, cannot be controlled or reviewed in the civil courts, by a writ of prohibition or otherwise.[1248]
War Legislation
THE REVOLUTIONARY WAR LEGISLATION
The American Revolution affords many precedents for extensive and detailed regulation of the nation's economy in time of war. But since the resolves of Congress under the Articles of Confederation were in practical effect mere recommendations to the State legislatures, it was the action of the latter which made these policies effective. On November 22, 1777, for example, Congress recommended to the States that they take steps "to regulate and ascertain the price of labour, manufactures, [and] internal produce."[1249] A month later the same body further recommended "to the respective legislatures of the United States, forthwith to enact laws, appointing suitable persons to seize and take, for the use of the continental army of the said States, all woolen cloths, blankets, linens, shoes, stockings, hats, and other necessary articles of clothing, * * *"[1250] Responding to such appeals, or acting on their own initiative, the State legislatures enacted measure after measure which entrenched upon the normal life of the community very drastically. Laws were passed forbidding the distillation of whiskey and other spirits in order to conserve grain supplies;[1251] fixing prices of labor and commodities, sometimes in greatest detail;[1252] levying requisitions upon the inhabitants for supplies needed by the army;[1253] and so on. In one instance a statute authorized the erection of an arms manufactory for the United States;[1254] in another, Negro Slaves were impressed for labor on fortifications.[1255] The fact that all this legislation came from the State legislatures whereas the war power was attributed to the "United States in Congress assembled" served to obscure the fact that the former was really an outgrowth of the latter.
CIVIL WAR LEGISLATION
The most pressing economic problem of the Civil War was that of finance. When Congress found itself unable to raise money to pay the soldiers in the field, it authorized the issuance of Treasury notes which, although not redeemable in specie, were made legal tender in payment of private debts. Upon its first consideration of this measure, the Supreme Court held it unconstitutional. It concluded that even if the circulation of such notes was facilitated by giving them the quality of legal tender, that result did not suffice to make the expedient an appropriate and plainly adapted means for the execution of the power to declare and carry on war.[1256] Three of the seven Justices then constituting the Court dissented from this decision,[1257] and it was reversed within a little more than a year, after two vacancies in the membership of the Court had been filled. One of the grounds relied upon by the new majority to sustain the statute was that the exigencies of war justified its enactment under the necessary and proper clause.[1258]
WORLD WAR I LEGISLATION
In meeting the strain which World War I put on our national resources of men and material, the economic activities of the people were directed or restricted by the Government on a scale previously unparalleled. The most sweeping measure of control was the Lever Food and Fuel Control Act,[1259] which authorized the President to regulate by license the importation, manufacture, storage, mining or distribution of necessaries; to requisition foods, feeds, and fuels; to take over and operate factories, packinghouses, pipelines, mines or other plants; to fix a minimum price for wheat; to limit, regulate or prohibit the use of food materials in the production of alcoholic beverages; and to fix the price of coal and coke and to regulate the production, sale and distribution thereof. Other statutes clothed him with power to determine priority in car service,[1260] to license trade with the enemy and his allies,[1261] and to take over and operate the rail and water transportation system,[1262] and the telephonic and telegraphic communication systems,[1263] of the country.
WORLD WAR II LEGISLATION
Several of these World War I measures were still on the statute books when World War II broke out. Moreover, in the period of preparation preceding the latter, Congress had enacted the Priorities Act of May 31, 1941[1264] which gave the President power to allocate any material where necessary to facilitate the defense effort. By the Second War Powers Act,[1265] passed early in 1942, the authority to allocate materials was extended to facilities. These two acts furnished the statutory foundation for the extensive system of consumer rationing administered by the Office of Price Administration, as well as for the comprehensive control of industrial materials and output which was exercised by the War Production Board. Under the Emergency Price Control Act[1266] the Office of Price Administration regulated the price of almost all commodities, as well as the rentals for housing accommodations in scores of defense rental areas. The War Labor Disputes Act[1267] permitted the President to commandeer plants which were closed by strikes.
MOBILIZATION OF INDUSTRIAL RESOURCES
While the validity of several of the measures just reviewed was assailed on one constitutional ground or another, the general power of Congress to regulate their subject matter in time of war was not disputed. Not until the Government sought to recover excessive profits realized on war contracts did the Supreme Court have occasion to affirm the broad authority of the National Government to mobilize the industrial resources of the nation in time of war. Using the power of Congress to conscript men for the armed forces as a measure of its power to regulate industry, the Court sustained the legislation, saying: "The Renegotiation Act was developed as a major wartime policy of Congress comparable to that of the Selective Service Act. The authority of Congress to authorize each of them sprang from its war powers. * * * With the advent of * * * [global] warfare, mobilized property in the form of equipment and supplies became as essential as mobilized manpower. Mobilization of effort extended not only to the uniformed armed services but to the entire population. Both Acts were a form of mobilization. The language of the Constitution authorizing such measures is broad rather than restrictive. * * * [It] * * * places emphasis upon the supporting as well as upon the raising of armies. The power of Congress as to both is inescapably express, not merely implied."[1268]
DELEGATION OF LEGISLATIVE POWER IN WARTIME
While insisting that, "in peace or in war it is essential that the Constitution be scrupulously obeyed, and particularly that the respective branches of the Government keep within the powers assigned to each,"[1269] the Supreme Court has recognized that in the conduct of a war delegations of power may be valid which would not be admissible in other circumstances. The cases in which this issue has been raised have been few in number. In one, the Selective Draft Law cases,[1270] the objection was dismissed without discussion. In a second, the price-fixing authority exercised by the Office of Price Administration during the second world war, was, on the issue of delegation of power, sustained by reference to peace time precedents.[1271] Where the war power has been the basis of decision, two different theories concerning its significance can be recognized. The first is that since the war power is an inherent power shared by the legislative and executive departments rather than an enumerated power granted to the former, Congress does not delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner. Opposed to this is the view that the right of Congress to delegate power to the President is limited in this as in other cases but that where the validity of the delegation depends upon whether or not too great a latitude of discretion has been conferred upon the Executive, the existence of a state of war is a factor to be considered in determining whether the delegation in the particular case is necessary and hence permissible.
The idea that a delegation of discretion in the exercise of the war power stands on a different footing than delegation of authority to levy a tax is implicit in Justice Bradley's opinion in Hamilton v. Dillin.[1272] The plaintiffs in that case contended that the sum they were required to pay for the privileges of buying cotton in the South was a tax, which, since it was imposed by the Secretary of the Treasury, was invalid because the taxing power was not susceptible of delegation to the Executive Department. To this argument the Court replied: "It is hardly necessary, under the view we have taken of the character of the regulations in question, * * *, to discuss the question of the constitutionality of the act of July 13th, 1861, regarded as authorizing such regulations. * * *, the power of the Government to impose such conditions upon commercial intercourse with an enemy in time of war * * * does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the Government * * *."[1273]
The Mergence of Legislative and Executive in Wartime
Both theories receive countenance in different passages in the opinion of Chief Justice Stone in Hirabayashi v. United States.[1274] In disposing of the contention that the curfew imposed upon a citizen of Japanese descent involved an invalid delegation of legislative power, the Chief Justice said: "The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of. * * *, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. * * * Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment of the commander, conform to the standards approved by the President and Congress, there is no failure in the performance of the legislative function."[1275] He went on to say, however, that: "The essentials of [the legislative] * * * function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. The very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude Congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger."[1276]
Doctrine of Lichter v. United States
A similar ambiguity is found in Lichter v. United States,[1277] but on the whole the opinion seems to espouse the second theory, as the following excerpts indicate: "A constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.—This power is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to methods to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition.[1278] * * * Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind. In 1942, in the early stages of total global warfare, the exercise of a war power such as the power 'To raise and support Armies, * * *' and 'To provide and maintain a Navy; * * *,' called for the production by us of war goods in unprecedented volume with the utmost speed, combined with flexibility of control over the product and with a high degree of initiative on the part of the producers. Faced with the need to exercise that power, the question was whether it was beyond the constitutional power of Congress to delegate to the high officials named therein the discretion contained in the Original Renegotiation Act of April 28, 1942, and the amendments of October 21, 1942. We believe that the administrative authority there granted was well within the constitutional war powers then being put to their predestined uses."[1279] |
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