The Constitution of the United States of America: Analysis and Interpretation Part 94

[371] Chicago & S. Airlines _v._ Waterman S.S. Corp., 333 U.S. 103, 111 (1948). _See also_ Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918); Ricaud _v._ American Metal Co., 246 U.S. 304 (1918); and Compania Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 U.S. 68, 74 (1938). In this last case the Court declared: "The vessel of a friendly government in its possession and service is a public vessel, even though engaged in the carriage of merchandise for hire, and as such is immune from suit in the courts of admiralty of the United States. * * * It is open to a friendly government to a.s.sert that such is the public status of the vessel and to claim her immunity from suit, either through diplomatic channels or, if it chooses, as a claimant in the courts of the United States. If the claim is recognized and allowed by the executive branch of the government, it is then the duty of the courts to release the vessel upon appropriate suggestion by the Attorney General of the United States, or other officer acting under his direction. * * *

The foreign government is also ent.i.tled as of right upon a proper showing, to appear in a pending suit, there to a.s.sert its claim to the vessel, and to raise the jurisdictional question in its own name or that of its accredited and recognized representative." Similarly, it has been held that courts may not exercise their jurisdiction by the seizure and detention of the property of a friendly sovereign, so as to embarra.s.s the executive arm of the government in conducting foreign relations. Ex parte Republic of Peru, 318 U.S. 578 (1943).

[372] 335 U.S. 160 (1948).

[373] Ibid. 167, 170. Four Justices dissented, by Justice Black, who said: "The Court * * * holds, as I understand its opinion, that the Attorney General can deport him whether he is dangerous or not. The effect of this holding is that any unnaturalized person, good or bad, loyal or disloyal to this country, if he was a citizen of Germany before coming here, can be summarily seized, interned and deported from the United States by the Attorney General, and that no court of the United States has any power whatever to review, modify, vacate, reverse, or in any manner affect the Attorney General's deportation order. * * * I think the idea that we are still at war with Germany in the sense contemplated by the statute controlling here is a pure fiction.

Furthermore, I think there is no act of Congress which lends the slightest basis to the claim that after hostilities with a foreign country have ended the President or the Attorney General, one or both, can deport aliens without a fair hearing reviewable in the courts. On the contrary, when this very question came before Congress after World War I in the interval between the Armistice and the conclusion of formal peace with Germany, Congress unequivocally required that enemy aliens be given a fair hearing before they could be deported." Ibid. 174-175. _See also_ Woods _v._ Miller, 333 U.S. 138 (1948), where the continuation of rent control under the Housing and Rent Act of 1947, enacted after the termination of hostilities was unanimously held to be a valid exercise of the war power, but the const.i.tutional question raised was a.s.serted to be a proper one for the Court. Said Justice Jackson, in a concurring opinion: "Particularly when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the const.i.tutional basis should be scrutinized with care." Ibid. 146-147.

[374] 7 Op. Atty. Gen. 453, 464-465 (1855).

[375] 9 Stat. 102 (1846); 20 U.S.C. ---- 41 and 48.

[376] _Cf._ 2 Stat. 78. The provision has long since dropped out of the statute book.

[377] Runkle _v._ United States, 122 U.S. 543 (1887).

[378] _Cf._ In re Chapman, 166 U.S. 661, 670-671 (1897), where it is held that presumptions in favor of official action "preclude collateral attack on the sentences of courts-martial." _See also_ United States _v._ Fletcher, 148 U.S. 84, 88-89 (1893); and Bishop _v._ United States, 197 U.S. 334, 341-342 (1905); both of which in effect repudiate Runkle _v._ United States.

[379] "The President, in the exercise of his executive powers under the Const.i.tution, may act through the head of the appropriate executive department. The heads of departments are his authorized a.s.sistants in the performance of his executive duties, and their official acts, promulgated in the regular course of business, are presumptively his acts." Wilc.o.x _v._ Jackson ex dem McConnel, 13 Pet. 498, 513 (1839).

_See also_, United States _v._ Eliason, 16 Pet. 291 (1842); Williams _v._ United States, 1 How. 290, 297 (1843); United States _v._ Jones, 18 How. 92, 95 (1856); United States _v._ Clarke (Confiscation Cases), 20 Wall. 92 (1874); United States _v._ Farden, 99 U.S. 10 (1879); Wolsey _v._ Chapman, 101 U.S. 755 (1880).

[380] 1 How. 290 (1843).

[381] 3 Stat. 723 (1823).

[382] 1 How. at 297-298.

[383] "It is manifestly impossible for the President to execute every duty, and every detail thereof, imposed upon him by the Congress. The courts have recognized this and have further recognized that he usually and properly acts through the several executive departments. Every reasonable presumption of validity is to be indulged with respect to the performance by the head of a department of a duty imposed upon the President and executed by the department head ostensibly in behalf of the President. Nevertheless, the authorities indicate that the President cannot, without statutory authority, delegate a discretionary duty, relieving himself of all responsibility, so that the duty when performed will not be his act but wholly the act of another. Williams _v._ United States, 1 How. 290, 297 (1843); Runkle _v._ United States, 122 U.S. 543, 557 (1887); United States _v._ Fletcher, 148 U.S. 84, 88 (1893); French _v._ Weeks, 259 U.S. 326, 334 (1922)"; 38 Op. Atty. Gen. 457-459 (1936).

[384] 1 Annals of Congress, cols. 515-516.

[385] Ibid. cols. 635-636.

[386] 1 Cr. 137 (1803).

[387] Ibid. 165-166.

[388] Op. Atty. Gen. 624 (1823).

[389] Messages and Papers of the Presidents, III, 1288.

[390] Ibid. 1304.

[391] 12 Pet. 524 (1838).

[392] Ibid. 610.

[393] 272 U.S. 52 (1926); 295 U.S. 602 (1935).

[394] Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (St. Paul, 1903), 231-232.

[395] United States _v._ Eliason, 16 Pet. 291, 301-302 (1842); Kurtz _v._ Moffitt, 115 U.S. 487, 503 (1885); Smith _v._ Whitney, 116 U.S.

167, 180-181 (1886).

[396] 135 U.S. 1 (1890).

[397] Ibid. 64. The phrase "a law of the United States" came from the act of March 2, 1833 (4 Stat. 632). However, in 28 U.S.C. 2241 (c) (2), as it stands following the amendment of May 24, 1949, c. 139, the phrase is replaced by the term an act of Congress, thereby eliminating the basis of the holding in In re Neagle.

[398] 236 U.S. 459 (1915); Mason _v._ United States, 260 U.S. 545 (1923).

[399] Rev. Stat. -- 5298; 50 U.S.C. -- 202.

[400] 1 Stat. 264 (1792); 1 Stat. 424 (1795); 2 Stat. 443 (1807); 12 Stat. 281 (1861).

[401] 12 Wheat. 19 (1827).

[402] Ibid. 31-32.

[403] "Federal Aid in Domestic Disturbances," S. Doc. 209, 59th Cong., 2 sess., p. 51 (1907).

[404] Op. Atty. Gen. 466 (1854). By the Posse Comitatus Act of 1878 (20 Stat. 152) it was provided that "* * * it shall not be lawful to employ any part of the Army of the United States, as a _posse comitatus_, or otherwise, for the purpose of executing the laws, except in such cases and under such circ.u.mstances as such employment of said force may be expressly authorized by the Const.i.tution or by act of Congress * * *"

The effect of this prohibition, however, was largely nullified by a ruling of the Attorney General "that by Revised Statutes ---- 5298 and 5300, the military forces, under the direction of the President, could be used to a.s.sist a marshal. 16 Op. Atty. Gen. 162." Bennett Milton Rich, The Presidents and Civil Disorder (The Brookings Inst.i.tution, 1941), 196 fn. 21.

[405] 12 Stat (App.) 1258.

[406] 212 U.S. 78 (1909).

[407] In re Debs, 158 U.S. 565 (1895).

[408] 212 U.S. at 84-85. _See also_ Sterling _v._ Constantin, 287 U.S.

378 (1932), which endorses Moyer _v._ Peabody, while emphasizing the fact that it applies only to a condition of disorder.

[409] 158 U.S. at 584, 586. Some years earlier, in the United States _v._ San Jacinto Tin Co., the Courts sustained the right of the Attorney General and of his a.s.sistants to inst.i.tute suits simply by virtue of their general official powers. "If," the Court said, "the United States in any particular case has a just cause for calling upon the judiciary of the country, in any of its courts, for relief * * *" in the question of appealing to them "must primarily be decided by the Attorney General * * *" and if restrictions are to be placed upon the exercise of this authority it is for Congress to enact them. 125 U.S. 273, 279 (1888).

_Cf._ Hayburn's case, 2 Dall. 409 (1792), in which the Court rejected Attorney General Randolph's contention that he had the right _ex officio_ to move for a writ of _mandamus_ ordering the United States circuit court for Pennsylvania to put the Invalid Pension Act into effect.

[410] 29 U.S.C. ---- 101-105; 47 Stat. 70 (1932).

[411] 330 U.S. 258. Here it was held that the Norris-LaGuardia Act did not apply to a case brought by the government as operator, under the War Labor Disputes Act of 1943, of a large proportion of the nation's soft coal mines. In reaching this result Chief Justice Vinson invoked the "rule that statutes which in general terms divest preexisting rights or privileges will not be applied to the sovereign without express words to that effect." Standing by itself these words would seem to save the Debs case. But they do not stand by themselves, for the Chief Justice presently added "that Congress, in pa.s.sing the [Norris-LaGuardia] Act, did not intend to permit the United States to continue to intervene by injunction in purely private labor disputes. * * * where some public interest was thought to have become involved," words which seem intended to repudiate the Debs case. However, the Chief Justice goes on at once to say, "* * * whether Congress so intended or not is a question different from the one before us now." Ibid. 272, 278.

[412] Public Law 101, 80th Cong., 1st sess., ---- 206-210.

[413] _See_ Louis Stark in New York Times, February 4, 1949; Labor Relations, Hearings before the Senate Committee on Labor and Public Welfare on S. 249, 81st Cong., 1st sess., pp. 263, 285, 295, 905, 911; Julius and Lillian Cohen, The Divine Rights of Presidents, 29 Nebraska Law Review, p. 416, March 1950.

[414] 30 Op. Atty. Gen. 291, 292, 293.

[415] Durand _v._ Hollins, 4 Blatch. 451, 454 (1860).

[416] Published by World Peace Foundation (Boston, 1945) _See also_, for the period 1811 to 1934, J. Reuben Clark's Memorandum as Solicitor of the Department of State ent.i.tled Right to Protect Citizens in Foreign Countries by Landing Forces (Government Printing Office, 1912, 1934).

The great majority of the landings were for "the simple protection of American citizens in disturbed areas," and only about a third involved belligerent action.