The Constitution of the United States of America: Analysis and Interpretation Part 99

Once it is held that Congress can require the courts criminally to enforce unconst.i.tutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circ.u.mvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do. There are limits to the judicial power. Congress may impose others. And in some matters Congress or the President has final say under the Const.i.tution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the const.i.tutional integrity of the judicial process, more especially in criminal trials."[113]

LEGISLATIVE COURTS: THE CANTER CASE

Quite distinct from special courts exercising the judicial power of the United States, but at the same time a significant part of the federal judiciary, are the legislative courts, so called because they are created by Congress in pursuance of its general legislative powers. The distinction between const.i.tutional courts and legislative courts was first made in American Insurance Company _v._ Canter,[114] which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: "These courts, then, are not const.i.tutional courts, in which the judicial power conferred by the Const.i.tution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Const.i.tution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States."[115] The Court went on to hold that admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of article III, but that the same limitation does not apply to the territorial courts; for, in legislating for them, "Congress exercises the combined powers of the general, and of a State government."[116]

Other Legislative Courts

The distinction made in the Canter case has been repeated with elaborations since 1828, receiving its fullest exposition in Ex parte Bakelite Corporation,[117] which contains a review of the history of legislative courts and the cases supporting the power of Congress to create them. In addition to discussing the derivation of power to establish legislative courts, the Bakelite case ruled that such courts "also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this cla.s.s is completely within Congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals."[118] Among the matters susceptible of judicial determination but not requiring it are claims against the States,[119] the disposal of the public lands and claims arising therefrom,[120] questions concerning membership in the Indian tribes,[121] and questions arising out of the administration of the customs and internal revenue laws.[122] For the determination of these matters Congress has created the Court of Claims, the Court of Private Land Claims, the Choctaw and Chickasaw Citizenship Court, the Court of Customs, the Court of Customs and Patent Appeals, and the Tax Court of the United States (formerly the Board of Tax Appeals).

Power of Congress Over Legislative Courts

In creating legislative courts Congress is not limited by the restrictions imposed in article III concerning tenure during good behavior and the prohibition against limitation of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court of the United States, and it may subject the judges of legislative courts to removal by the President.[123] In McAllister _v._ United States,[124] the removal of a territorial judge was sustained on the basis of the principle that: "The whole subject of the organization of territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive and the manner in which they may be removed or suspended from office, was left, by the Const.i.tution, with Congress under its plenary power over the Territories of the United States."[125] Long afterwards the Court held in Williams _v._ United States[126] that the reduction of the salaries of the judges of the Court of Claims, and inferentially of judges of other legislative courts, to $10,000 per year by the Appropriation Act of June 30, 1932, was const.i.tutional. In so doing the Court rejected dicta in earlier cases which cla.s.sified the Court of Claims as a const.i.tutional court and silently reversed Miles _v._ Graham,[127] which had held that Congress could not include the salary of a judge of the Court of Claims in his taxable income.

Status of the Court of Claims

It follows, too, that in creating legislative courts, Congress can vest in them nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus in Gordon _v._ United States[128] there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise in United States _v._ Ferreira[129] the Court sustained the act conferring powers on the Florida territorial court to examine claims arising under the Spanish treaty and to report his decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. "A power of this description," it was said, "may const.i.tutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Const.i.tution to the courts of the United States."

A Judicial Paradox

Chief Justice Taney's view in the Gordon case that the judgments of legislative courts could never be reviewed by the Supreme Court was tacitly rejected in De Groot _v._ United States,[130] when the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision of this case in 1867 the authority of the Supreme Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts, but rather upon the nature of the proceeding before the lower Court and the finality of its judgment.

Consequently in proceedings before a legislative court which are judicial in nature and admit of a final judgment the Supreme Court may be vested with appellate jurisdiction. Thus there arises the workable anomaly that though the legislative courts can exercise no part of the judicial power of the United States and the Supreme Court can exercise only that power, the latter nonetheless can review judgments of the former. However, it should be emphasized that the Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such courts.[131]

STATUS OF THE COURTS OF THE DISTRICT OF COLUMBIA

Through a long course of decisions the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In b.u.t.terworth _v._ United States ex rel.

Hoe,[132] the Court sustained an act of Congress which conferred revisionary powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisionary powers in the same court over rates fixed by a public utilities commission.[133] Not long after this the same rule was applied to the revisionary power of the District Supreme Court over orders of the Federal Radio Commission.[134] These rulings were based on the a.s.sumption, express or implied, that the courts of the District were legislative courts, created by Congress in pursuance of its plenary power to govern the District of Columbia. In an obiter dictum in Ex parte Bakelite Corporation,[135] while reviewing the history and a.n.a.lyzing the nature of legislative courts, the Court stated that the courts of the District were legislative courts.

In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be const.i.tutional courts exercising judicial power of the United States,[136] with the result of shouldering the task of reconciling the performance of nonjudicial functions by such courts with the rule that const.i.tutional courts can exercise only the judicial power of the United States. This task was easily accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to const.i.tute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, article III, -- 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Const.i.tution, "Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its courts."[137] The effect of the O'Donoghue decision is to confer a dual status on the courts of the District of Columbia. As regards their organization, and the tenure and compensation of their judges they are const.i.tutional courts, as regards jurisdiction and powers they are simultaneously legislative and const.i.tutional courts, and as such can be vested with nonjudicial powers while sharing the judicial power of the United States.[138]

Jurisdiction: Cases and Controversies

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Const.i.tution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Amba.s.sadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

THE TWO CLa.s.sES OF CASES AND CONTROVERSIES

By the terms of the foregoing section the judicial power extends to nine cla.s.ses of cases and controversies, which fall into two general groups.

In the words of Chief Justice Marshall in Cohens _v._ Virginia:[139] "In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This cla.s.s comprehends 'all cases in law and equity arising under this const.i.tution, the laws of the United States, and treaties made, or which shall be made, under their authority.' This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second cla.s.s, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more States, between a State and citizens of another State,' and 'between a State and foreign States, citizens or subjects.' If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a const.i.tutional right to come into the courts of the Union."[140]

Judicial power is "the power of a court to decide and p.r.o.nounce a judgment and carry it into effect between persons and parties who bring a case before it for decision."[141] The meaning attached to the terms "cases" and "controversies" determines therefore the extent of the judicial power, as well as the capacity of the federal courts to receive jurisdiction. As Chief Justice Marshall declared in Osborn _v._ Bank of the United States, judicial power is capable of acting only when the subject is submitted in a case, and a case arises only when a party a.s.serts his rights "in a form prescribed by law."[142] Many years later Justice Field, relying upon Chisholm _v._ Georgia,[143] and Tucker's edition of Blackstone, amended this definition by holding that "controversies," to the extent that they differ from "cases," include only suits of a civil nature. He continued: "By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Const.i.tution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication."[144] The definitions propounded by Chief Justice Marshall and Justice Field were quoted with approval in Muskrat _v._ United States,[145] where the Court held that the exercise of judicial power is limited to cases and controversies and emphasized "adverse litigants,"

"adverse interests," an "actual controversy," and conclusiveness or finality of judgment as essential elements of a case.[146]

ADVERSE LITIGANTS

The necessity of adverse litigants with real interests has been stressed in numerous cases,[147] and has been particularly emphasized in suits to contest the validity of a federal or State statute. A few ill.u.s.trations will suffice to describe the practical operation of these limitations.

In Chicago and Grand Trunk Railroad Co. _v._ Wellman,[148] which originated in the courts of Michigan on an agreed statement of facts between friendly parties desiring to contest a rate-making statute, the Supreme Court ruled there was no case or controversy. In the course of its opinion, which held that the courts have no "immediate and general supervision" of the const.i.tutionality of legislative enactments, the Court said: "Whenever, in pursuance of an honest and actual antagonistic a.s.sertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be const.i.tutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the const.i.tutionality of the legislative act."[149]

In applying the rule requiring adverse litigants to present an honest and actual antagonistic a.s.sertion of rights, the Court invalidated an act of Congress which authorized certain Indians to bring suits against the United States to test the const.i.tutionality of the Indian allotment acts, on the ground that such a proceeding was not a case or controversy in that the United States had no interest adverse to the claimants.[150]

The Court has also held that in contesting the validity of a statute, the issue must be raised by one adversely affected and not a stranger to the operation of the statute,[151] and that the interest must be of a personal as contrasted with an official interest.[152] Hence a county court cannot contest the validity of a statute in the interest of third parties,[153] nor can a county auditor contest the validity of a statute even though he is charged with its enforcement,[154] nor can directors of an irrigation district occupy a position antagonistic to it.[155] It is a well settled rule that: "The Court will not pa.s.s upon the const.i.tutionality of legislation * * *, or upon the complaint of one who fails to show that he is injured by its operation, * * *"[156] It is equally well established as a corollary that, "litigants may challenge the const.i.tutionality of a statute only insofar as it affects them."[157]

STOCKHOLDERS' SUITS

It must be noted, however, that adversity is a relative element which the courts may or may not discover. Thus in Pollock _v._ Farmers' Loan and Trust Co.,[158] the Supreme Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circ.u.mventing section 3224 of the Revised Statutes, which forbids the maintenance in any court of a suit "for the purpose of restraining the collection of any tax."[159] Subsequently the Court has found adversity of parties in a suit brought by a stockholder to restrain a t.i.tle company from investing its funds in farm loan bonds issued by the federal land banks,[160] and in a suit brought by certain preferred stockholders against the Alabama Power Company and the TVA to enjoin the performance of contracts between the company and the authority and a subsidiary, the Electric Home and Farm Authority, on the ground that the act creating these agencies was unconst.i.tutional.[161]

The ability to find adversity in narrow crevices of casual disagreement is well ill.u.s.trated by Carter _v._ Carter Coal Co.,[162] where the President of the company brought suit against the company and its officials, among whom was Carter's father who was Vice President of the Company.[163] The Court entertained the suit and decided the case on its merits.

SUBSTANTIAL INTEREST DOCTRINE

Equally important as an essential element of a case is the concept of real or substantial interests. As a general rule the interest of taxpayers in the general funds of the federal Treasury is insufficient to give them a standing in court to contest the expenditure of public funds on the ground that this interest "is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity."[164] Likewise, the Court has held that the general interest of a citizen in having the government administered by law does not give him a standing to contest the validity of governmental action.[165] Nor can a member of the bar of the Supreme Court challenge the validity of an appointment to the Court since his "is merely a general interest common to all members of the public."[166] Similarly an electric power company has been held not to have a sufficient interest to maintain an injunction suit to restrain the making of federal loans and grants to munic.i.p.alities for the construction or purchase of electric power distribution plants on the ground that the "lender owes the sufferer no enforcible duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose."[167] Recent cases, involving the issue of religion in the schools, reach somewhat divergent results. In Illinois ex rel. McCollum _v._ Board of Education,[168] the Court held that a litigant had the requisite standing to bring a mandamus suit challenging, on the basis of her interests as a resident and taxpayer of the school district and the parent of a child required by law to attend the school or one meeting the State's educational requirements, the validity of a religious education program involving the use of public school rooms one half hour each week. But in Doremus _v._ Board of Education,[169] decided early in 1952, the Court declined jurisdiction in a case challenging the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament. Appellants' interest as taxpayers was found to be insufficient to sustain the proceeding.

Substantial Interest in Suits by States

These principles have been applied in a number of cases to which a State was one of the parties and in suits between States. One of the most important of these is State of Georgia _v._ Stanton,[170] which was an original suit in equity brought by the State of Georgia against the Secretary of War and others to enjoin the enforcement of the Reconstruction Acts. The State's counsel contended that enforcement of the acts brought about "an immediate paralysis of all the authority and power of the State government by military force; * * * [which was divesting the State] of her legally and const.i.tutionally established and guaranteed existence as a body politic and a member of the Union." The Supreme Court dismissed the suit for want of jurisdiction, holding that for a case to be presented for the exercise of the judicial power, the rights threatened "must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity."[171] The rule of the Stanton case was applied and elaborated in Ma.s.sachusetts _v._ Mellon,[172] where the State in its own behalf and as _parens patriae_ sought to enjoin the administration of the Maternity Act[173] which, it was alleged, was an unconst.i.tutional invasion of the reserved rights of the State and an impairment of its sovereignty. The suit was held not justiciable on the ground that a State cannot maintain a suit either to protect its political rights or as _parens patriae_ to protect citizens of the United States against the operation of a federal law. Concerning the right of a State to sue in its own behalf to protect its political rights, the Court said: "In that aspect of the case we are called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government."[174]

However, these holdings do not affect the right of a State as _parens patriae_ to intervene in behalf of the economic welfare of its citizens against discriminatory rates set by an alleged illegal combination of carriers,[175] or the right of a State to a.s.sert its quasi sovereign rights over wild life within its domain,[176] or to protect its citizens against the discharge of noxious gases by an industrial plant in an adjacent State.[177]

ABSTRACT, CONTINGENT, AND HYPOTHETICAL QUESTIONS

Closely related to the requirements of adverse parties and substantial interests is that of a _real_ issue as contrasted with _speculative_, abstract, hypothetical, or moot cases. As put by Chief Justice Stone in Alabama State Federation of Labor _v._ McAdory,[178] it has long been the Court's "considered practice not to decide abstract, hypothetical or contingent questions," or as Justice Holmes said years earlier by way of dictum, a party cannot maintain a suit "for a mere declaration in the air."[179] Texas _v._ Interstate Commerce Commission,[180] presents a good ill.u.s.tration of an abstract question. Here, Texas attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: "It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power."[181] Again in Ashwander _v._ Tennessee Valley Authority,[182]

the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company because, "The p.r.o.nouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character const.i.tuting an actual or threatened interference with the rights of the persons complaining." Chief Justice Hughes cited New York _v._ Illinois,[183] where the Court dismissed a suit as presenting abstract questions "as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future."[184] He also cited among other cases Arizona _v._ California,[185] where it was held that claims based merely upon a.s.sumed potential invasions of rights were not enough to warrant judicial intervention.

The concepts of real interests and abstract questions again appear prominently in United Public Workers of America _v._ Mitch.e.l.l.[186] Here a number of government employees sued to enjoin the Civil Service Commission from enforcing the prohibitions of the Hatch Act against activity in political management or campaigns, and to obtain a declaratory judgment that the act was invalid. Except for one of the employees none had violated the act, but they did state that they desired to engage in the forbidden political activities. The Court held that as to all the parties save the one who had violated the act there was no justiciable controversy. "Concrete legal issues, presented in actual cases, not abstractions" were declared to be requisite. The generality of their objection was regarded as really an attack on the political expediency of the Hatch Act.[187]

From the rule that courts will not render advisory opinions or write essays in political theory on speculative issues, it follows logically that they will not determine moot cases or suits arranged by collusion between parties who have no opposing interests. A moot case has been defined as "one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually a.s.serted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy."[188]

Cases may become moot because of a change in the law, or the status of the litigants, or because of some act of the parties which dissolves the controversy.[189] Just as courts will not speculate an hypothetical question, so they will not a.n.a.lyze dead issues.[190] The duty of every federal court, said Justice Gray, "is to decide actual controversies by a judgment which can be carried into effect, and not give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter at issue in the case before it."[191]

POLITICAL QUESTIONS

The rule has been long established that the courts have no general supervisory power over the executive or administrative branches of government.[192] In Decatur _v._ Paulding,[193] which involved an attempt by mandamus to compel the Secretary of the Navy to pay a pension, the Supreme Court in sustaining denial of relief stated: "The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them."[194] It follows, therefore, that mandamus will lie against an executive official only to compel the performance of a ministerial duty which admits of no discretion as contrasted with executive or political duties which admit of discretion.[195] It follows, too, that an injunction will not lie against the President,[196] or against the head of an executive department to control the exercise of executive discretion.[197] These principles are well ill.u.s.trated by Georgia _v._ Stanton,[198]

Mississippi _v._ Johnson,[199] and Kendall _v._ United States ex rel.

Stokes.[200]

Origin of the Concept

The concept of "political question" is an old one. As early as Marbury _v._ Madison,[201] Chief Justice Marshall stated: "The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the const.i.tution and laws, submitted to the executive, can never be made in this court." The concept, as distinguished from that of interference with executive functions, was first elaborated in Luther _v._ Borden,[202] which involved the meaning of "a republican form" of government and the question of the lawful government of Rhode Island among two competing groups purporting to act as the lawful authority.

"It is the province of a court to expound the law, not to make it,"