The Constitution of the United States of America: Analysis and Interpretation
Chapter 12 : POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION An entirely different problem arises whe

POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION

An entirely different problem arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended or modified, or that a new rule be put into operation, upon the finding of certain facts by an executive or administrative officer. Since the delegated function in such cases is not that of "filling up the details" of a statute, authority for it must be sought elsewhere than in Wayman _v._ Southard and its progeny. It is to be found in an even earlier case--The Brig Aurora[67]--where the revival of a law upon the issuance of a Presidential proclamation was upheld in 1813. After previous restraints on British s.h.i.+pping had lapsed, Congress pa.s.sed a new law stating that those restrictions should be renewed in the event the President found and proclaimed that France had abandoned certain practices which violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the Court answered briefly that "we can see no sufficient reason, why the legislature should not exercise its discretion in reviving the act of March 1st, 1809, either expressly or conditionally, as their judgment should direct."[68]

MODIFICATION OF TARIFF LAWS

This point was raised again in Field _v._ Clark,[69] where the Tariff Act of 1890 was a.s.sailed as unconst.i.tutional because it directed the President to suspend the free importation of enumerated commodities "for such time as he shall deem just" if he found that other countries imposed upon agricultural or other products of the United States duties or other exactions which "he may deem to be reciprocally unequal and unjust." In sustaining this statute the Court relied heavily upon two factors: (1) legislative precedents which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, * * *, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations";[70] (2) that the act "did not, in any real sense, invest the President with the power of legislation. * * * Congress itself prescribed, in advance, the duties to be levied, * * *, while the suspension lasted. Nothing involving the expediency or the just operation of such legislation was left to the determination of the President. * * * He had no discretion in the premises except in respect to the duration of the suspension so ordered."[71] By similar reasoning, the Court sustained the flexible provisions of the Tariff Act of 1922 whereby duties were increased or decreased to reflect differences in cost of production at home and abroad, as such differences were ascertained and proclaimed by the President.[72]

ARMS EMBARGO

That the delegation of discretion in dealing with foreign relations stands upon a different footing than the transfer of authority to regulate domestic concerns was clearly indicated in United States _v._ Curtiss-Wright Export Corp.[73] There the Court upheld the Joint Resolution of Congress which made it unlawful to sell arms to certain warring countries "if the President finds that the prohibition of the sale of arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace * * *, and if * * *, he makes proclamation to that effect, * * *" Said Justice Sutherland for the Court: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the Federal Government in the field of international relations--* * *, Congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved."[74]

INTERNAL AFFAIRS

Panama Refining Co. _v._ Ryan[75] was the first case in which the President had been authorized to put into effect by proclamation, a new and independent rule pertaining to internal affairs. One section of the National Industrial Recovery Act authorized the President to forbid the s.h.i.+pment in interstate commerce of oil produced or withdrawn from storage in violation of State law. Apart from the purposes broadly stated in the first section--economic recovery and conservation of natural resources--the measure contained no standard or statement of policy by which the President should be guided in determining whether or when to issue the order. Nor did it require him to make any findings of fact to disclose the basis of his action. By a vote of eight-to-one the Court held the delegation invalid. The only case in which the power of an administrative official to modify a rule enacted by Congress relating to domestic affairs has been sustained is Opp Cotton Mills _v._ Administrator.[76] That case involved the provisions of the Fair Labor Standards Act which authorized the appointment of Industry Advisory Committees to investigate conditions in particular industries, with notice and opportunity to be heard afforded to interested parties. Upon consideration of factors enumerated in the law and upon finding that the conditions specified in the law were fulfilled, such Committees were empowered to recommend and the Administrator to adopt, higher minimum wage rates for particular industries. Emphasizing the procedure which the agency was directed to follow and the fact that it would be impossible for Congress to prescribe specific minimum wages for particular industries,[77] a unanimous court sustained the law on the ground that the sole function of the Administrator was to put into effect the definite policy adopted by the legislators.

EMERGENCY STATUTES

Occupying a midway station between legislation which deals with foreign affairs and purely domestic legislation is what may be termed "emergency statutes." These are largely the outgrowth of the two World Wars. Thus on December 16, 1950, President Truman issued a proclamation declaring "the existence of a national emergency," and by so doing "activated"

more than sixty statutes or parts thereof which by their terms apply to or during "a condition of emergency" or "in time of war or national emergency," etc. Most of these specifically leave it to the President to determine the question of emergency, and the White House a.s.sumption seems to be that they all do so. Many of the provisions thus activated delegate powers of greater or less importance to the President himself or remove statutory restrictions thereon.[78]

PUNISHMENT OF VIOLATIONS

If Congress so provides, violations of valid administrative regulations may be punished as crimes.[79] But the penalties must be provided in the statute itself; additional punishment cannot be imposed by administrative action.[80] In an early case, the Court held that a section prescribing penalties for any violation of a statute did not warrant a prosecution for wilful disobedience of regulations authorized by, and lawfully issued pursuant to, the act.[81] Without disavowing this general proposition, the Court, in 1944, upheld a suspension order issued by the OPA whereby a dealer in fuel oil who had violated rationing regulations was forbidden to receive or deal on that commodity.[82] Although such an order was not explicitly authorized by statute, it was sustained as being a reasonable measure for effecting a fair allocation of fuel oil, rather than as a means of punishment for an offender. In another OPA case, the Court ruled that in a criminal prosecution, a price regulation was subject to the same rule of strict construction as a statute, and that omissions from, or indefiniteness in, such a regulation, could not be cured by the Administrator's interpretation thereof.[83]

Congressional Investigations

INVESTIGATIONS IN AID OF LEGISLATION

No provision of the Const.i.tution expressly authorized either house of Congress to make investigations and exact testimony to the end that it may exercise its legislative function effectively and advisedly. But such a power had been frequently exercised by the British Parliament and by the a.s.semblies of the American Colonies prior to the adoption of the Const.i.tution.[84] It was a.s.serted by the House of Representatives as early as 1792 when it appointed a committee to investigate the disaster to General St. Clair and his army in the Northwest and empowered it to "call for such persons, papers, and records, as may be necessary to a.s.sist their inquiries."[85]

CONDUCT OF EXECUTIVE DEPARTMENT

For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson this power was not seriously challenged.[86] During the controversy over renewal of the charter of the Bank of the United States, John Quincy Adams contended that an unlimited inquiry into the operations of the bank would be beyond the power of the House.[87] Four years later the legislative power of investigation was challenged by the President. A committee appointed by the House of Representatives "with power to send for persons and papers, and with instructions to inquire into the condition of the various executive departments, the ability and integrity with which they have been conducted, * * *"[88] called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt "to invade the just rights of the Executive Departments" the President refused to comply and the majority of the committee acquiesced.[89] Nevertheless Congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown's raid upon the a.r.s.enal at Harper's Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness.[90] Notwithstanding this firmly established legislative practice the Supreme Court took a narrow view of the power in the case of Kilbourn _v._ Thompson.[91] It held that the House of Representatives had overstepped its jurisdiction when it inst.i.tuted an investigation of losses suffered by the United States as a creditor of Jay Cooke and Company, whose estate was being administered in bankruptcy by a federal court. But nearly half a century later, in McGrain _v._ Daugherty,[92] it ratified in sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration.

PRIVATE AFFAIRS

Beginning with the resolution adopted by the House of Representatives in 1827 which vested its Committee on Manufactures "with the power to send for persons and papers with a view to ascertain and report to this House such facts as may be useful to guide the judgment of this House in relation to a revision of the tariff duties on imported goods,"[93] the two Houses have a.s.serted the right to inquire into private affairs when necessary to enlighten their judgment on proposed legislation. In Kilbourn _v._ Thompson,[94] the Court denied the right of Congress to pry into private affairs. Again, in Interstate Commerce Commission _v._ Brimson,[95] in sustaining a statute authorizing the Courts to use their process to compel witnesses to give testimony sought by the Commission for the enforcement of the act, the Court warned that, "neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen."[96] Finally, however, in McGrain _v._ Daugherty,[97] the power of either House "to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Const.i.tution, * * *"[98] was judicially recognized and approved.

PURPOSE OF INQUIRY

In the absence of any showing that legislation was contemplated as a result of the inquiry undertaken in Kilbourn _v._ Thompson, the Supreme Court concluded that the purpose was an improper one--to pry into matters with which the judiciary alone was empowered to deal.[99]

Subsequent cases have given the legislature the benefit of a presumption that its object is legitimate. In re Chapman[100] established the proposition that to make an investigation lawful "it was certainly not necessary that the resolutions should declare in advance what the Senate meditated doing when the investigation was concluded."[101] Similarly, in McGrain _v._ Daugherty, the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating.[102] Going one step further in Sinclair _v._ United States,[103] which on its facts presented a close parallel to the Kilbourn Case, the Court affirmed the right of the Senate to carry on its investigation of fraudulent leases of government property after suit for the recovery thereof had been inst.i.tuted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable only in the courts wherein they were pending and that the committee avowedly had departed from any inquiry in aid of legislation. The Senate prudently had directed the investigating committee to ascertain what, if any, other or additional legislation may be advisable. Conceding "that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits,"

the Court declared that the authority "to require pertinent disclosures in aid of its own const.i.tutional power is not abridged because the information sought to be elicited may also be of use in such suits."[104]

JUDICIAL FUNCTIONS

When either House exercises a judicial function, as in judging of elections or determining whether a member should be expelled, it is clearly ent.i.tled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was ent.i.tled to investigate such conduct and to summon private individuals to give testimony concerning it.[105] The decision in Barry _v._ United States ex rel. Cunningham[106] sanctioned the exercise of a similar power in investigating a Senatorial election.

SANCTIONS OF THE INVESTIGATORY POWER

Contempt

Explicit judicial recognition of the right of either House of Congress to commit for contempt a witness who ignores its summons or refuses to answer its inquiries dates from McGrain _v._ Daugherty. But the principle there applied had its roots in an early case, Anderson _v._ Dunn,[107] which affirmed in broad terms the right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority--in that case an attempt to bribe one of its members. The right to punish a contumacious witness was conceded in Marshall _v._ Gordon,[108] although the Court there held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House. Both Anderson _v._ Dunn and Marshall _v._ Gordon emphasized that the power to punish for contempt rests upon the right of self-preservation; that is, in the words of Chief Justice White, "the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed."[109]

Whence it was argued, in Jurney _v._ MacCracken[110] that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena, because the "power to punish for contempt may never be exerted, in the case of a private citizen, solely _qua_ punishment. * * * the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; * * *" The Court confirmed the power to punish for a past contempt as an appropriate means for vindicating "the established and essential privilege of requiring the production of evidence."[111]

Criminal Prosecutions

Under the rule laid down by Anderson _v._ Dunn, imprisonment for contempt of one of the Houses of Congress could not extend beyond the adjournment of the body which ordered it.[112] This limitation seriously impaired the efficacy of such sanction. Accordingly, in 1857 Congress found it necessary to provide criminal penalties for recalcitrant witnesses, in order to make its power to compel testimony more effective. The Supreme Court held that the purpose of this statute was merely to supplement the power of contempt by providing additional punishment, and overruled all const.i.tutional objections to it saying: "We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but, because Congress, by the act of 1857, sought to aid each of the Houses in the discharge of its const.i.tutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved; * * *."[113] In a prosecution for wilful failure of a person to produce records within her custody and control pursuant to a lawful subpoena issued by a committee of the House of Representatives, the Supreme Court ruled that the presence of a quorum of the committee at the time of the return of the subpoena was not an essential element of the offense.[114]

Previously the Court had held that a prosecution could not be maintained under a general perjury statute for false testimony given before a Congressional committee unless a quorum of the committee was present when the evidence was given.[115]

Section 2. Clause 1. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Clause 2. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of the State in which he shall be chosen.

Qualifications of Members of Congress

CONGRESSIONAL PROTECTION OF RIGHT TO VOTE FOR REPRESENTATIVES

Although the qualifications of electors of Members of Congress are defined by State law,[116] the right to vote for such Representatives is derived from the Federal Const.i.tution.[117] Unlike the rights guaranteed by the Fourteenth and Fifteenth Amendments, this privilege is secured against the actions of individuals as well as of the States.[118] It embraces the right to cast a ballot and to have it counted honestly.[119] Where a primary election is made by law an integral part of the procedure of choice or where the choice of a representative is in fact controlled by the primary, the Const.i.tution safeguards the rights of qualified electors to partic.i.p.ate therein.[120] Congress may protect this right by appropriate legislation.[121] In prosecutions inst.i.tuted under section 19 of the Criminal Code,[122] the Court had held that failure to count ballots lawfully cast,[123] or dilution of their value by stuffing the ballot box with fraudulent ballots[124] const.i.tutes a denial of the const.i.tutional right to elect Representatives in Congress.

But the bribery of voters, although within reach of Congressional power under other clauses of the Const.i.tution, is not deemed to be an interference with the rights guaranteed by this section to other qualified voters.[125]

WHEN THE ABOVE QUALIFICATIONS MUST BE POSSESSED

The princ.i.p.al disputes which have arisen under these sections have related to the time as of which members-elect must fulfill the conditions of eligibility, and whether additional requirements may be imposed by federal or State law. Although on two occasions when it refused to seat persons who were ineligible when they sought to take the oath of office, the Senate indicated that eligibility must exist at the time of election, it is now established in both Houses that it is sufficient if the requirements are met when the oath is administered.

Thus persons elected to either House before attaining the required age or term of citizens.h.i.+p have been admitted as soon as they became qualified.[126]

ENLARGEMENT OF QUALIFICATIONS