Court sustained the State in applying to motor-driven tugs operating in
navigable waters of the United States legislation which provided for the
inspection and regulation of every vessel operated by machinery if the
same was not subject to inspection under the laws of the United States.
It was conceded that there was "elaborate" federal legislation in the
field, but it was asserted that the Washington statute filled a gap.
"The principle is thoroughly established," said Chief Justice Hughes for
the Court, "that the exercise by the State of its police power, which
would be valid if not superseded by federal action, is superseded only
where the repugnance or conflict is so 'direct and positive' that the
two acts cannot 'be reconciled or consistently stand together.'"[849]
And in Bob-Lo Excursion Co. _v._ Michigan,[850] the Court, elbowing
aside a decision of many years standing,[851] ruled that the commerce
clause does not preclude a State, in the absence of federal statute or
treaty, from forbidding racial discrimination by one carrying passengers
by vessel to and from a port in the United States to an island situated
in Canadian territory.
BRIDGES, DAMS, FERRIES, WHARVES
The holding in Willson _v._ Blackbird Creek Marsh Co.[852] has been
invoked by the Court many times in support of State legislation
permitting the construction across navigable streams of dams, booms, and
other shore protections,[853] as well as in support of State legislation
authorizing the erection of bridges and the operation of ferries across
such streams.[854] Bridges, it is true, may obstruct some commerce, but
they may more than compensate for this by aiding other commerce.[855] In
Justice Field's words in Huse _v._ Glover,[856] it should not be
forgotten that: "the State is interested in the domestic as well as in
the interstate and foreign commerce conducted on the Illinois River, and
to increase its facilities, and thus augment its growth, it has full
power. It is only when, in the judgment of Congress, its action is
deemed to encroach upon the navigation of the river as a means of
interstate and foreign Commerce, that that body may interfere and
control or supersede it. * * * How the highways of a State, whether on
land or by water, shall be best improved for the public good is a matter
for State determination, subject always to the right of Congress to
interpose in the cases mentioned."[857] The same principle applies to
the construction of piers and wharves in a navigable stream,[858] as
well as to harbor improvements by a State for the aid and protection of
navigation;[859] and reasonable tolls may be charged for the use of
such aids, and reasonable regulations laid down governing their
employment.[860]
Ferries
A State may license individuals to operate a ferry across an interstate
river bounding its territory, or may incorporate a company for the
purpose.[861] Nor may a neighbor State make the securing of its consent
and license a condition precedent to the operation of such a ferry to
one of its towns.[862] Earlier the right of a State to regulate the
rates to be charged by an interstate bridge company for passage across
its structure was denied by a closely divided Court.[863] The ruling
does not, however, control the regulation of rates to be charged by an
interstate ferry company. These the chartering State may, in the absence
of action by Congress, regulate except in the case of ferries operated
in connection with railroads,[864] as to which Congress has acted with
the result of excluding all State action.[865] A State may also regulate
the rates of a vessel plying between two points within the State
although the journey is over the high seas; although again action by
Congress may supersede State action at any time.[866]
TELEGRAPHS AND TELEPHONES
An Indiana statute which required telegraph companies to deliver
dispatches by messenger to the persons to whom they were addressed if
the latter resided within one mile of the telegraph station or within
the city or town where it was located, and which prescribed the order of
preference to be given various kinds of messages, was held to be an
unconstitutional interference with interstate commerce;[867] as was also
the order of the Massachusetts Public Service Commission interfering
with the transmission to firms within the State's borders of continuous
quotations of the New York Stock Exchange by means of ticker
service.[868] But a Virginia statute which imposed a penalty on a
telegraph company for failure in its "clear common-law duty" of
transmitting messages without unreasonable delay, was held, in the
absence of legislation by Congress, to be valid;[869] as was also a
Michigan statute which prohibited the stipulation by a company against
liability for nonperformance of such duty.[870] However, a South
Carolina statute which sought to make mental anguish caused by the
negligent nondelivery of a telegram a cause of action, was held to be,
as applied to messages transmitted from one State to another or to the
District of Columbia, an unconstitutional attempt to regulate interstate
commerce.[871] A State has no authority to interfere with the operation
of the lines of telegraph companies constructed along postal routes
within its borders under the authority of the Post Road Act of
1866,[872] nor to exclude altogether a company proposing to take
advantage of the act;[873] but that act does not deprive the State or a
municipality of the right to subject telegraph companies to reasonable
regulations, and an ordinance regulating the erection and use of poles
and wires in the streets does not interfere with the exercise of
authority under that act.[874] The jurisdiction conferred by The
Transportation Act of 1920 upon the Interstate Commerce Commission, and
since transferred to the Federal Communications Commission, over
accounts and depreciation rates of telephone companies does not, in the
absence of exercise by the federal agency of its power, operate to
curtail the analogous State authority;[875] nor is an unconstitutional
burden laid upon interstate commerce by the action of a State agency in
requiring a telephone company to revise its intrastate toll rates so as
to conform to rates charged for comparable distances in interstate
service.[876]
GAS AND ELECTRICITY
The business of piping natural gas from one State to another to local
distributors which sell it locally to consumers is a branch of
interstate commerce which a State may not regulate.[877] Likewise, an
order by a State commission fixing rates on electric current generated
within the States and sold to a distributor in another State, imposes an
unconstitutional burden on interstate commerce, although the regulation
of such rates would necessarily benefit local consumers of electricity
furnished by the same company.[878] In the absence, on the other hand,
of contrary regulation by Congress a State may regulate the sale to
consumers in its cities of natural gas produced in and transmitted from
another State;[879] nor did Congress, by the National Gas Act of 1938,
impose any such contrary regulation.[880] Likewise, a State is left free
by the same act to require a gas company engaged in interstate commerce
to obtain a certificate of convenience before selling directly to
customers in the State.[881] And where a pipe line is used to distribute
both gas that is brought in from without the State and gas that is
produced and used within the State, and the two are commingled, but
their proportionate quantities are known, an order by the State
commission directing the gas company to continue supplying gas from the
line to a certain community does not burden interstate commerce.[882]
The transportation of natural gas from sources outside the State to
local consumers in its municipalities ceases to be interstate commerce
at the point where it passes from a pressure producing station into
local distributing stations, and from that point is subject to State
regulation.[883] A State public utilities commission is entitled to
require a natural gas distributing company seeking an increase of rates
to show the fairness and reasonableness of the rate paid by it to the
pipe line company from which it obtains its supplies, both companies
being subsidiaries of a third.[884] A State agency may require a company
which sells natural gas to local consumers and distributing companies,
transporting it in pipe lines from other States, to file contracts,
agreements, etc., for sales and deliveries to the distributing
companies;[885] nor does the fact that a natural gas pipe line from the
place of production to the distributing points in the same State cuts
across a corner of another State render it improper, in determining
maximum rates for gas sold by the owner of the pipe line to distributing
companies, to include the value of the total line in the rate base.[886]
A State may, as a conservation measure, fix the minimum prices at the
wellhead on natural gas produced in the State and sold interstate.[887]
FOREIGN CORPORATIONS
A State may require that a foreign corporation as a condition of its
being admitted to do a local business or to having access to its courts
obtain a license, and in connection therewith furnish information as to
its home State or country, the location of its principal office, the
names of its officers and directors, its authorized capitalization, and
the like, and that it pay a reasonable license fee;[888] nor is a
corporation licensed by the National Government to act as a customs
broker thereby relieved from meeting such conditions.[889] So it was
decided in 1944. The holding does not necessarily disturb one made
thirty years earlier in which the Court ruled that a statute which
closed the courts of the enacting State to any action on any contract in
the State by a foreign corporation unless it had previously appointed a
resident agent to accept process, could not be constitutionally applied
to the right of a foreign corporation to sue on an interstate
transaction.[890] A suit brought in a State court by a foreign
corporation having its principal place of business in the State against
another foreign corporation engaged in interstate commerce on a cause of
action arising outside the State does not impose an undue burden on such
commerce; and the forum being in other respects appropriate, its
jurisdiction is not forfeited because the property attached is an
instrumentality of interstate commerce.[891] There is nothing in the
commerce clause which immunizes a foreign corporation doing business in
a State from any fair inquiry, judicial or legislative, that is required
by local laws.[892]
MISCELLANEOUS
Banks and Banking
A State statute which forbids individuals or partnerships to engage in
the banking business without a license is not, as to one whose business
chiefly consists in receiving deposits for periodic shipment to other
States and to foreign countries, invalid as a regulation of interstate
and foreign commerce.[893]
Brokers
A statute which requires dealers in securities evidencing title or
interest in property to obtain a license from a State officer, is not
invalid as applied to dispositions within the State securities
transported from other States.[894]
Commission Men
A statute requiring commission merchants to give bonds for the
protection of consignees may be validly applied to commission merchants
handling produce shipped to them from without the State.[895]
Attachment and Garnishment
Railway cars are not exempt from attachment under State laws, although
they may have been or are intended to be used in interstate
commerce.[896]
Statutory Liens
A State statute which gives a lien upon all vessels whether domestic or
foreign, and whether engaged in interstate commerce or not, for injuries
to persons and property within the State, does not as applied to
nonmaritime torts offend the commerce clause, there being no act of
Congress in conflict.[897] Nor can the enforcement of a lien for
materials used in the construction of a vessel be avoided because the
vessel is engaged in interstate commerce.[898]
The Police Power and the Subject-Matter of Commerce
SCOPE OF THE POLICE POWER
"Quarantine regulations are essential measures of protection which the
States are free to adopt when they do not come into conflict with
Federal action. In view of the need of conforming such measures to local
conditions, Congress from the beginning has been content to leave the
matter for the most part, notwithstanding its vast importance, to the
States and has repeatedly acquiesced in the enforcement of State laws.
* * * Such laws undoubtedly operate upon interstate and foreign
commerce. They could not be effective otherwise. They cannot, of course,
be made the cover for discriminations and arbitrary enactments having no
reasonable relation to health * * *; but the power of the State to take
steps to prevent the introduction or spread of disease, although
interstate and foreign commerce are involved (subject to the paramount
authority of Congress if it decides to assume control), is beyond
question.[899] * * * State inspection laws and statutes designed to
safeguard the inhabitants of a State from fraud and imposition are valid
when reasonable in their requirements and not in conflict with Federal
rules, although they may affect interstate commerce in their relation to
articles prepared for export or by including incidentally those brought
into the State and held for sale in the original imported
packages."[900]
QUARANTINE LAWS
In two earlier cases a Missouri statute which prohibited the driving of
all Texan, Mexican, and Indian cattle into the state during certain
seasons of the year was held void;[901] while a statute making anybody
in the State who had Texas cattle which had not wintered north of a
certain line liable for damage through the communication of disease from
these to other cattle was sustained;[902] as were also the regulations
of a sanitary commission which excluded all cattle, horses, and mules,
from the State at a certain period when anthrax was prevalent.[903]
Reviewing previous cases in the one last cited, the Court declared their
controlling principle to be simply whether the police power of the State
had been exerted to exclude "_beyond what is necessary for any proper
quarantine_," a question predominantly of fact, and one therefore to be
determined for each case with only general guidance from earlier
decisions.[904]
More recent cases conform to the same pattern. Among measures sustained
are the following: an Ohio statute forbidding the sale in that State of
condensed milk unless made from unadulterated milk;[905] a New York
statute penalizing the sale with intent to defraud of preparations
falsely represented to be Kosher;[906] a New York statute requiring that
cattle shall not be imported for dairy or breeding purposes unless
accompanied by the certificate of a proper sanitary official in the
State of origin, in order to prevent the spread of an infectious
disease;[907] an order of a State Department of Agriculture, pursuant
to a State law, regulating the standards of containers in which
agricultural products (berries) may be marketed within the State;[908] a
State statute restricting the processing of fish found within the waters
of the State with the purpose of conserving it for food, even though it
also operates upon fish brought into the State from without;[909] the
price fixing and licensing provisions of a State Milk and Cream Act, not
applicable to transactions in interstate commerce, by declaration of the
act;[910] a Maine statute requiring the registration with the State
Health Department of cosmetic preparations for the purpose of
ascertaining whether the products are harmless;[911] an Indiana Animals
Disposal Act requiring that animal carcasses, not promptly disposed of
by the owner, be delivered to the representative of a disposal plant
licensed by the State, and prohibiting their transportation on the
public highways for any other purpose;[912] a Pennsylvania statute
providing for the licensing and bonding of all milk dealers and fixing a
minimum price to be paid producers, as applied to a dealer purchasing
milk within the State for shipment to points outside it.[913]
STATE INSPECTION LAWS
The application of State inspection laws to imports from outside the
State has been sustained as warranted by local interests and as not
discriminating against out-of-state products, in the following
instances: A North Carolina statute providing that "every bag, barrel,
or other package" of commercial fertilizer offered for sale in the State
should bear a label truly describing its chemical composition, which
must comply with certain requirements, and charging 25 cents per ton to
meet the cost of inspection;[914] an Indiana statute forbidding the sale
in the original package of concentrated feeding stuffs prior to
inspection and analysis for the purpose of ascertaining whether certain
minimum standards as to composition had been met;[915] a Minnesota
statute requiring as a precondition of its being offered for sale in the
State, the inspection of illuminating oil and gasoline;[916] a Kansas
statute forbidding any moving picture film or reel to be exhibited in
the State unless it had been examined by the State Superintendent of
Instruction and certified by him as moral and instructive and not
tending to debase or corrupt the morals.[917] A Minnesota statute, on
the other hand, which forbade the sale in any city of the State of any
beef, mutton, lamb, or pork which, had not been inspected on the hoof
by local inspectors within twenty-four hours of slaughter, was held
void.[918] Its "necessary operation," said the Court, was to ban from
the State wholesome and properly inspected meat from other States.[919]
Also a Virginia statute which required the inspection and labelling of
all flour brought into the State for sale was disallowed because flour
produced in the State was not subject to inspection;[920] likewise a
Florida statute providing for the inspection of all cement imported into
the State and enacting a fee therefor, but making no provision for the
inspection of the local product, met a like fate;[921] as did also a
Madison, Wisconsin ordinance which sought to exclude a foreign
corporation from selling milk in that city solely because its
pasteurization plants were more than five miles away.[922]
STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE
The original package doctrine made its debut in Brown _v._
Maryland,[923] where it was applied to remove imports from abroad which
were still in the hands of the importer in the original package, out of
the reach of the State's taxing power. This rule the Court, overriding a
dictum in Marshall's opinion in Brown _v._ Maryland,[924] rejected
outright after the Civil War as to imports from sister States.[925]
However, when in the late eighties and early nineties State-wide
Prohibition laws began making their appearance, the Court seized on the
rejected dictum and began applying it as a brake on the operation of
such laws with respect to interstate commerce in intoxicants, which the
Court denominated "legitimate articles of commerce." While holding that
a State was entitled to prohibit the manufacture and sale within its
limits of intoxicants,[926] even for an outside market--manufacture
being no part of commerce[927]--it contemporaneously laid down the rule,
in Bowman _v._ Chicago and Northwestern Railroad Co.,[928] that so long
as Congress remained silent in the matter, a State lacked the power,
even as part and parcel of a program of Statewide prohibition of the
traffic in intoxicants, to prevent the shipment into it of intoxicants
from a sister State; and this holding was soon followed by another to
the effect that, so long as Congress remained silent, a State had no
power to prevent the sale in the original package of liquors introduced
from another State.[929] The effect of the latter decision was soon
overcome by an act of Congress, the so-called Wilson Act, repealing its
alleged silence,[930] but the Bowman decision still stood, the act in
question being interpreted by the Court not to subject liquors from
sister States to local authority until their arrival in the hands of the
person to whom consigned.[931] Not till 1913 was the effect of the
decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932]
which placed intoxicants entering a State from another State under the
control of the former for all purposes whatsoever.
OLEOMARGARINE AND CIGARETTES
Long before this the immunity temporarily conferred by the original
package doctrine upon liquors had been extended to cigarettes[933] and,
with an instructive exception, to oleomargarine. The exception referred
to was made in Plumley _v._ Massachusetts,[934] where the Court held
that a statute of that State forbidding the sale of oleomargarine
colored to look like butter could validly be applied to oleomargarine
brought from another State and still in the original package. The
justification of the statute to the Court's mind was that it sought "to
suppress false pretenses and promote fair dealing in the sale of an
article of food." Nor did Leisy and Co. _v._ Hardin[935] apply, said
Justice Harlan for the Court, because the beer in that case was "genuine
beer, and not a liquid or drink colored artificially so as to cause it
to look like beer." That decision was never intended, he continued, to
hold that "a State is powerless to prevent the sale of articles
manufactured in or brought from another State, and subjects of traffic
and commerce, if their sale may cheat the people into purchasing
something they do not intend to buy * * *."[936] Obviously, the argument
was conclusive only on the assumption that a State has a better right to
prevent frauds than it has to prevent drunkenness and like evils; and
doubtless that is the way the Court felt about the matter at that date.
On the one hand, the liquor traffic was a very ancient, if not an
altogether, venerable institution, while oleomargarine was then a
relatively novel article of commerce whose wholesomeness was suspect. On
the other hand, laws designed to secure fair dealing and condemnatory of
fraud followed closely the track of the common law, while anti-liquor
laws most decidedly did not. The real differentiation of the two cases
had to be sought in historical grounds. Yet the State must not put
unreasonable burdens upon interstate commerce even in oleomargarine.
Thus a Pennsylvania statute forbidding the sale of this product even in
the unadulterated condition was pronounced invalid so far as it operated
to prevent the introduction of such oleomargarine from another State and
its sale in the original package;[937] as was also a New Hampshire
statute which required that all oleomargarine marketed in the State be
colored pink.[938] A little later in the case above mentioned involving
cigarettes, the Court discovered some of the difficulties of the
original package doctrine when applied to interstate commerce, in which
the package is not so apt to be standardized as it is in foreign
commerce.[939]
DEMISE OF THE ORIGINAL PACKAGE DOCTRINE
What importance has the original package doctrine today as a restraint
on State legislation affecting interstate commerce? The answer is, very
little, if any. State laws prohibiting the importation of intoxicating
liquor, have since the passage of the Twenty-first Amendment
consistently been upheld, even when imposing a burden on interstate
commerce or discriminating against liquor imported from another
State.[940] Indeed the Court has, without appealing to the Twenty-first
Amendment, even gone so far as to uphold a statute requiring a permit
for transportation of liquor through the enacting State.[941] In
Whitfield _v._ Ohio,[942] moreover, the Court upheld a State law
prohibiting the sale in open market of convict-made goods including
sales of goods imported from other States and still in the original
package. While the decision is based on the Hawes-Cooper Act of
1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice
Sutherland speaking for the Court, takes pains to disparage the
"unbroken-package doctrine, as applied to interstate commerce, * * *, as
more artificial than sound."[944] Indeed, earlier cases make it clear
that the enforcement of State quarantine and inspection acts, otherwise
constitutional, is not to be impeded by the doctrine in any way.[945]
CURBS ON THE INTERSTATE MOVEMENT OF PERSONS
Prior to the Civil War the slaveholding States, ever fearful of a slave
uprising, adopted legislation meant to exclude from their borders free
Negroes whether hailing from abroad or from sister States, and in 1823 a
South Carolina Negro Seamen's Act embodying this objective was held void
by Justice William Johnson, himself a South Carolinian, in a case
arising in the Carolina circuit and involving a colored British
sailor.[946] The basis of the ruling, which created tremendous uproar in
Charleston,[947] was the commerce clause and certain treaties of the
United States. There followed two rulings of Attorneys General, the
earlier by Attorney General Wirt, denouncing such legislation as
unconstitutional;[948] the latter by Attorney General Berrien,
sustaining it;[949] and in City of New York _v._ Miln[950] the Court,
speaking by Justice Barbour of Virginia, asserted, six years after Nat
Turner's rebellion, the power of the States to exclude undesirables in
sweeping terms, which in the Passenger Cases,[951] decided in 1840, a
narrowly divided Court considerably qualified. Shortly after the Civil
War the Court overturned a Nevada statute which sought to halt the
further loss of population by a special tax on railroads on every
passenger carried out of the State.[952] This time only two Justices
invoked the commerce clause; the majority, speaking by Justice Miller
held the measure to be an unconstitutional interference with a right of
national citizenship--a holding today translatable, in the terminology
of the Fourteenth Amendment, as an abridgment of a privilege or immunity
of citizens of the United States.
Against this background the Court in 1941, in Edwards _v._
California,[953] held void a statute which penalized the bringing into
that State, or the assisting to bring into it, any nonresident knowing
him to be "an indigent person." Five Justices, speaking by Justice
Byrnes, held the act to be even as to "persons who are presently
destitute of property and without resources to obtain the necessities of
life, and who have no relatives or friends able and willing to support
them,"[954] an unconstitutional interference with interstate commerce.
"The State asserts," Justice Byrnes recites, "that the huge influx of
migrants into California in recent years has resulted in problems of
health, morals, and especially finance, the proportions of which are
staggering. It is not for us to say that this is not true. We have
repeatedly and recently affirmed, and we now reaffirm, that we do not
conceive it our function to pass upon 'the wisdom, need, or
appropriateness' of the legislative efforts of the States to solve such
difficulties. * * * But this does not mean that there are no boundaries
to the permissible area of State legislative activity. There are. And
none is more certain than the prohibition against attempts on the part
of any single State to isolate itself from difficulties common to all of
them by restraining the transportation of persons and property across
its borders. It is frequently the case that a State might gain a
momentary respite from the pressure of events by the simple expedient of
shutting its gates to the outside world. But, in the words of Mr.
Justice Cardozo: 'The Constitution was framed under the dominion of a
political philosophy less parochial in range. It was framed upon the
theory that the peoples of the several States must sink or swim
together, and that in the long run prosperity and salvation are in union
and not division'."[955] Four of the Justices would have preferred to
rest the holding of unconstitutionality on the rights of national
citizenship under the privileges and immunities clause of Amendment
XIV.[956]
STATE CONSERVATION AND EMBARGO MEASURES
In Geer _v._ Connecticut[957] the Court sustained the right of the State
to forbid the shipment beyond its borders of game taken within the
State--this on the ground, in part, that a State has an underlying
property right to wild things found within its limits, and so is
entitled to qualify the right of individual takers thereof to any
extent it chooses; and a similar ruling was laid down in a later case as
to the prohibition by a State of the transportation out of it of water
from its important streams.[958] In Oklahoma _v._ Kansas Natural Gas
Co.,[959] however, this doctrine was held inapplicable to the case of
natural gas, on the ground: first, that "gas, when reduced to
possession, is a commodity, the individual property" of the owner; and
secondly, that "the business welfare of the State," is subordinated by
the commerce clause to that of the nation as a whole. If the States had
the power asserted in the Oklahoma statute, said Justice McKenna, "a
singular situation might result. Pennsylvania might keep its coal, the
Northwest its timber, the mining States their minerals. And why may not
the products of the field be brought within the principle? * * * And yet
we have said that 'in matters of foreign and interstate commerce there
are no State lines.' In such commerce, instead of the States, a new
power appears and a new welfare, a welfare which transcends that of any
State. But rather let us say it is constituted of the welfare of all the
States and that of each State is made greater by a division of its
resources, * * *, with every other State, and those of every other State
with it. This was the purpose, as it is the result, of the interstate
commerce clause of the Constitution of the United States."[960] In
Pennsylvania _v._ West Virginia[961] the same doctrine was enforced in
disallowance of a West Virginia statute whereby that State sought to
require that a preference be accorded local consumers of gas produced
within the State. West Virginia's argument that the supply of gas within
the State was waning and no longer sufficed for both the local and the
interstate markets, and that therefore the statute was a legitimate
measure of conservation in the interest of the people of the State, was
answered in the words just quoted.
In the above cases the State prohibition overturned was directed
specifically to shipments beyond the State. In two other cases the State
enactments involved reached all commerce, both domestic and interstate
without discrimination. In the first of these, Sligh _v._ Kirkwood,[962]
the Court upheld the application to oranges which were intended for the
interstate market of a Florida statute prohibiting the sale, shipment,
or delivery for shipment of any citrus fruits which were immature or
otherwise unfit for consumption. The burden thus imposed upon interstate
commerce was held by the Court to be incidental merely to the effective
enforcement of a measure intended to safeguard the health of the people
of Florida. Moreover, said the Court, "we may take judicial notice of
the fact that the raising of citrus fruits is one of the great
industries of the State of Florida. It was competent for the
legislature to find that it was essential for the success of that
industry that its reputation be preserved in other States wherein such
fruits find their most extensive market."[963] In Lemke _v._ Farmers
Grain Co.,[964] on the other hand, a North Dakota statute which confined
the purchase of grain within that State to those holding licenses from
the State and which regulated prices, was pronounced void under the
commerce clause. To the argument that such legislation was "in the
interest of the grain growers and essential to protect them from
fraudulent purchases, and to secure payment to them of fair prices for
the grain actually sold," the Court answered that, "Congress is amply
authorized to pass measures to protect interstate commerce if
legislation of that character is needed."
The differentiation of the above two cases is twofold. The statute under
review in the earlier one was of the ordinary type of inspection law and
was applied without discrimination to fruits designed for the home and
the interstate market. The North Dakota act was far more drastic,
approximating an attempt on the part of the State to license interstate
commerce. What is even more important, however, the later case
represents a new rule of law, and one which at the time the Florida act
was before the Court had not yet been heard of. This is embodied in the
head note of the case in the following words: "The business of buying
grain in North Dakota, practically all of which is intended for shipment
to, and sale at, terminal markets in other States, conformably to the
usual and general course of business in the grain trade, is interstate
commerce."[965] The application of this rule in the field of state
taxation was mentioned on a previous page.[966]
STATE CONSERVATION AND EMBARGO MEASURES: THE MILK CASES
Certain recent cases have had to deal with State regulation of the milk
business. In Nebbia _v._ New York,[967] decided in 1934, that State's
law regulating the price of milk was sustained by the Court against
objections based on the due process clause of Amendment XIV. A year
later, in Baldwin _v._ Seelig[968] the refusal of a license under the
same act to a dealer who had procured his milk at a lower minimum price
than producers were guaranteed in New York, was set aside as an
unconstitutional interference with interstate commerce. However, a
Pennsylvania statute requiring dealers to obtain licenses was sustained
as to one who procured milk from neighboring farms and shipped it all
into a neighboring State for sale.[969] The purpose of the act,
explained Justice Roberts, was to control "a domestic situation in the
interest of the welfare of the producers and consumers," and its
application to the kind of case before the Court was essential to its
effective enforcement and affected interstate commerce only
incidentally.[970] But when a distributor of milk in Massachusetts, who
already had two milk stations in Eastern New York, was refused a license
for a third on the ground, among others, that the further diversion of
milk to Massachusetts would deprive the local market of a supply needed
during the short season, a narrowly divided Court interposed its veto on
the basis of Oklahoma _v._ Kansas Natural Gas Co.[971]
STATE CONSERVATION AND EMBARGO MEASURES: THE SHRIMP CASES
Meantime, Geer _v._ Connecticut has been somewhat overcast by subsequent
rulings. In a case, decided in 1928, it was held that a Louisiana
statute which permitted the shipment of shrimp taken in the tidal waters
of Louisiana marshes only if the heads and hulls have been previously
removed was unconstitutional.[972] Distinguishing Geer _v._ Connecticut
the Court said: "As the representative of its people, the State might
have retained the shrimp for [local] consumption and use therein." But
the object of the Louisiana statute was in direct opposition to the
conservation of a local food supply. Its object was to favor the canning
of shrimp for the interstate market. "* * * by permitting its shrimp to
be taken and all the products thereof to be shipped and sold in
interstate commerce, the State necessarily releases its hold and, as to
the shrimp so taken, definitely terminates its control. * * * And those
taking the shrimp under the authority of the act necessarily thereby
become entitled to the rights of private ownership and the protection of
the commerce clause."[973] On the same reasoning a South Carolina
statute which required that owners of shrimp boats, fishing in the
marine waters off the coast of the State, dock at a State port and
unload, pack and stamp their catch with a tax stamp before shipping or
transporting it to another State, was pronounced void in 1948.[974]
However, a California statute which restricted the processing of fish,
both that taken in the waters of the State and that brought into the
State in a fresh condition, was found by the Court to be purely a food
conservation measure, and hence valid.[975] The application of the act
to fish brought from outside was held to be justified "by rendering
evasion of it less easy."[976]
Concurrent Federal and State Legislation
THE GENERAL ISSUE
Since the turn of the century federal legislation under the commerce
clause has penetrated more and more deeply into areas once occupied
exclusively by the police power of the States. The result has been that
State laws have come under increasingly frequent attack as being
incompatible with acts of Congress operating in the same general field.
The Court's decisions resolving such alleged conflicts fall into three
groups: _first_, those which follow Webster's theory, advanced in
Gibbons _v._ Ogden, that when Congress acts upon a particular phase of
interstate commerce, it designs to appropriate the entire field with the
result that no room is left for supplementary State action; _second_,
those in which, in the absence of conflict between specific provisions
of the State and Congressional measures involved, the opposite result is
reached; _third_, those in which the State legislation involved is found
to conflict with certain acts of Congress, and in which the principle of
national supremacy is invoked by the Court. Most of the earlier cases
stemming from State legislation affecting interstate railway
transportation fall in the first class; while illustrations of the
second category usually comprise legislation intended to promote the
public health and fair dealing. More recent cases are more difficult to
classify, especially as between the first and third categories.
THE HEPBURN ACT
No act ever passed by Congress was more destructive of legislation on
the State statute books than the Hepburn Act of 1906,[977] amending the
Interstate Commerce Act. Thus a State statute which, while prohibiting a
railway from giving free passes or free transportation, authorized the
issuance of transportation in payment for printing and advertising, was
found to conflict with the unqualified prohibition by Congress of free
interstate transportation.[978] Likewise, a State statute which
penalized a carrier for refusing to receive freight for transportation
whenever tendered at a regular station was found to conflict with the
Congressional provision that no carrier "shall engage or participate in
the transportation of passengers or property, as defined in this act,
unless the rates, fares, and charges upon which the same are transported
by said carrier have been filed and published in accordance with the
provisions of this act."[979] In enacting this provision, the Court
found, Congress had intended to occupy the entire field. In a third
case, it was held that the Hepburn Act had put it outside the power of a
State to regulate the delivery of cars for interstate shipments;[980]
and on the same ground, a State statute authorizing recovery of a
penalty for delay in giving notice of the arrival of freight was
disallowed;[981] as was also the similar rule of a State railroad
commission with respect to failure to deliver freight at depots and
warehouses within a stated time limit.[982] And in Adams Express Co.
_v._ Croninger[983] it was sweepingly ruled that the so-called Carmack
Amendment to the Hepburn Act, which puts the responsibility for loss of,
or injury to, cargo upon the initial carrier, had superseded all State
statutes limiting recovery for loss or injury to goods in transportation
to an agreed or declared value. Substantially contemporaneous with these
holdings were others in which the Court ruled that the federal
Employers' Liability Act of 1908, as amended in 1910;[984] the federal
Hours of Service Act (Railroads) of 1907;[985] and the federal Safety
Appliance Acts of 1893, as amended in 1903[986] superseded all State
legislation dealing with the same subjects so far as such legislation
affected interstate commerce.[987] However, the States were still able
to regulate the time and manner of payment of the employees of
railroads, including those engaged in interstate commerce,[988] Congress
having not legislated on the subject.
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]
WAR POWERS IN TIME OF PEACE
To some indeterminate extent the power to wage war embraces the power to
prepare for it and the further power to deal with the problem of
adjustment after hostilities have ceased. In his Commentaries, Justice
Story wrote as follows with specific reference to the question of
preparation for war: "'It is important also to consider, that the surest
means of avoiding war is to be prepared for it in peace. * * * How could
a readiness for war in time of peace be safely prohibited, unless we
could in like manner prohibit the preparations and establishments of
every hostile nation? The means of security can be only regulated by the
means and the danger of attack. * * * It will be in vain to oppose
constitutional barriers to the impulse of self-preservation.'"[1280]
Authoritative judicial recognition of the power is found in Ashwander
_v._ Tennessee Valley Authority,[1281] where, in sustaining the power of
the Government to construct and operate Wilson Dam and the power plant
connected with it, pursuant to the National Defense Act of June 3,
1916,[1282] the Court said: "While the District Court found that there
is no intention to use the nitrate plants or the hydroelectric units
installed at Wilson Dam for the production of war materials in time of
peace, 'the maintenance of said properties in operating condition and
the assurance of an abundant supply of electric energy in the event of
war, constitute national defense assets.' This finding has ample
support."[1283]
Atomic Energy Act
By far the most significant example of legislation adopted at a time
when no actual "shooting war" was in progress, with the object of
providing for the national defense, is the Atomic Energy Act of
1946.[1284] That law establishes an Atomic Energy Commission of five
members which is empowered to conduct through its own facilities, or by
contracts with, or loans to private persons, research and developmental
activity relating to nuclear processes, the theory and production of
atomic energy and the utilization of fissionable and radioactive
materials for medical, industrial and other purposes. The act further
provides that the Commission shall be the exclusive owner of all
facilities (with minor exceptions) for the production of fissionable
materials; that all fissionable material produced shall become its
property; that it shall allocate such materials for research and
developmental activities, and shall license all transfer of source
materials. The Commission is charged with the duty of producing atomic
bombs, bomb parts, and other atomic military weapons at the direction of
the President. Patents relating to fissionable materials must be filed
with the Commission, the "just compensation" payable to the owners to be
determined by a Patent Compensation Board designated by the Commission
from among its employees.
POSTWAR LEGISLATION