United States v. Curtiss Wright Export Corp

304

Syllabus.

penses out of the assets in the hands of the liquidator, upon the ground that the court was without jurisdiction to make such an allowance, any right of the appellants inder the Federal Constitution has been infringed. The question is one of state practice and remedy. The mo- tions to dismiss the appeals are granted and the appeals are dismissed for the want of a substantial federal ques- Iowa Central Ry. Co. v. Iowa, 160 U. S. 389, 393; tion.

Standard Oil Co. v. Missouri, 224 U. S. 270, 280, 281; McDonald v. Oregon Navigation Co., 233 U. S. 665, 669, 670; Gasquet v. Lapeyre, 242 U. S. 367, 369, 370; Enter- prise Irrigation District v. Canal Co., 243 U. S. 157, 166.

Dismissed.

MR. JUSTICE STONE took no part in the consideration or decision of this case.

No. 98. Argued November 19, 20, 1936.-Decided December 21, 1936.

A Joint Resolution of May 28, 1934, provided: "That ii the President finds that the prohibition of the sale of arms and muni- tions of war in the United States to those countries now engaged in armed conflict in the Chaco may coL pibute to the regstablish- ment of peace between those countries, and if after consultation with the governments of other American Republics and with their cobperation, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limitations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed conflict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress." Violation was made punishable as a

305 304

Syllabus.

crime. The President issued two proclamations, one on the date the other on No- of the Resolution, putting it into operation;

(1) The Joint Resolution is not an unconstitutional delegation

of legislative power to the Executive. Pp. 314, 329.

(2) The powers of the Federal Government over foreign or

external affairs differ in nature and origin from those over domestic or internal affairs. P. 315.

(3) The broad statement that the Federal Government can

exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the States such portions as it was thought desirable to vest in the Federal Government, leav- ing those not included in the enumeration still in the States. Id.

(4) The States severally never possessed international powers.

(5) 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.

Id.

(6) The Conslitution was ordained and established, among other

things, to form "a more perfect Union." Prior to that event, the to be "per- Union, declared by the Articles of Confederation petual," was the sole possessor of external sovereignity, and in the Union it remained without change save in so far as the Con- stitution in express terms qualified its exercise. Though the States were several their people in respect of foreign affairs were one.

(7) The investment of the Federal Government with the powers

of external sovereignty did not depend upon .the affirmative grants of the Constitution. P. 318.

(8) In the international field, the sovereignty of the United

States is complete. Id.

(9) In international relations the President is the sole organ of

the Federal Government. P. 319.

(10) In view of the delicacy of foreign relations and of the

power peculiar to the President in this regard, Congressional legis- lation which is to be made effective in the international field must

Argument for the United States.

often accord to him a degree of discretion and freedom which would not be admissible were domestic affairs alone involved.

(11) The marked difference between

foreign and domestic affairs, in this respect, is recognized in the dealings of the houses of Congress with executive departments. P. 321.

(12) Unbroken legislative practice from, the inception almost

of the national government supports the conclusion that the Joint Resolution, supra, is not an unconstitutional delegation of power.

(13) Findings of jurisdictional facts in the first proclamation,

following the language of the Joint Resolution, were sufficient.

(14) The revocation of the first proclamation by the second

did not have the effect of abrogating the Resolution or of pre- cluding its enforcement by prosecution and punishment of offenses committed during the life of the first proclamation. P. 331.

2. Upon an appeal by the United States under the Criminal Appeals

Act from a decision holding an indictment bad on demurrer, this Court has jurisdiction of questions involving the validity of the statute on which the indictment was founded which were decided by the District Court in favor of the United States. P. 329.

14 F. Supp. 230, reversed.

APPEAL, under the Criminal Appeals Act, from a judg- ment quashing an indictment for conspiracy.

Mr. Mdrtin Conboy, with whom Solicitor General Reed, Assistant Attorney General McMahon, and Messrs. Wil- liam W. Barron and Charles A. Horsky were on the brief, for the United States.

There is no unconstitutional delegation of legislative power. From the beginning of the Government like delegations have been customary in the field of foreign relations.

The policy of Congress is clearly stated; the standards axe simple and definite; and a finding by the President is required. The case is controlled by Hampton & Co. v.

United States, 276 U. S. 394, and Field v. Clark, 143 U. S.

649.

U. S. v. CURTISS-WRIGHT CORP. 304

Argument for Appellees.

The objection that the President is allowed to make simply an estimate of the future efficacy of the law rather than a finding of present facts rests upon a misconstruc- tion of the Resolution, which requires the finding of a present fact, viz., whether the prohibition on arms will contribute to reestablishment of peace in the Chaco now.

Delegations of power to make present determinations of future effect are commonly upheld, e. g., in rate-cases.

The other grounds urged below in support of the de- murrer, and overruled by the District Court, are not prop- erly before this Court under the Criminal Appeals Act.

In any event, they are without merit. By his proclama- tion the President complied with every requirement of the Resolution, making all findings of fact that were necessary.

Nor did the second proclamation, revoking the first, terminate liability for offenses committed in the interim.

The authority for the prosecution is the Resolution, not repealed. Moreover, even if the proclamation can be con- sidered as a repeal of the Resolution, the prosecution is authorized by R. S., § 13.

Mr. George Z. Medalie, with whom Messrs. J. Edward Lumbard, Jr., and Theodore S. Hope, Jr., were on the brief, for John S. Allard et al., appellees.

The Joint Resolution attempts an invalid delegation in at least four respects. First, its going into operation is made dependent upon the President's determination whether it may have the capacity to bring about the result desired by the Congress, to-wit, the restablishment of peace in the Chaco. Second, its going into operation is further conditioned upon the President's uncontrolled discretion. Third, it delegates to the President a power to repeal the Resolution which is co6rdinate with that of the Congress itself. Fourth, it grants to the President the power to except from and limit the statutory prohibi-

Argument for Appelles.

tion, as he may see fit, guided by no rule or standard whatsoever.

The proclamation which was designed to put the Reso- lution into operation was ineffectual, because of the Pres- ident's falure to find essenlial jurisdictional facts.

The acts charged in the indictment are no longer an offense against the laws of the United States. The prose- cution is not saved by R. S., § 13 and there is no other saving clause.

This Court may conisider all grounds urged in support of the judgment which go to the validity or construction of' the Joint Resolution.

Mr. William Wallace, with whom Mr. Robert D. Shea was on the brief, for the Curtiss-Wright Export Corp. et al., appellees.

The Criminal Appeals Act permits consideration on this appeal of any ground of invalidity in addition to the one upon which the court below sustained the demurrers.

United States v. Bitty, 208 U. S. 398, 400; United States

v. Biggs, 211 U. S. 507, 522; United States v. Keitel, 211

U. S. 370, 398; United States v. Kissel, 218 U. S. 606;

United States v. Americani Railway Express Co., 265 U. S. 425, 435; Langnes v. Green, 282 U. S. 531, 538; United States v. Hastings, 296 U. S. 188; United States v. Nixon, 235 U. S. 231; United States v. Shreveport Grain Co., 287

U. S. 77; United States v. Mescall, 215 U. S. 26, 31.

The Joint Resolution was invalid because it was not to go into operation until after an optiomal proclama- tion which the President might never make. Making or refusing to make a law is essentially a legislative function which may not be delegated or surrendered by the Con- gress. Mutual Film Corp. v. Ohio Industrial Comn'n, 236 U. S. 245; Panama Refining Co. v. Ryan, 293 U. S.

388; Schechter Poultry Corp. v. United States, 295 U. S. 495, 538.

U. S. v. CURTISS-WRIGHT CORP. 304

Argument for Appellees.

Some of the cases relied on by the Government, like Hampton & *Co. v. United States, 276 U. S. 394; Field v.

Clark, 143 U. S. 649, are 'under tariff acts Others deal with powers confided to the Interstate Commerce Com- mission on rate regulations, etc. (Louisville & N. R. Co.

v. Garrett, 231 U. S. 298; Reagan v. Farmers' Loan &

Trust Co., 154 U. S. 362; New York Central Securities Co.

v. United States, 287 U. S. 12; see also, Knoxville v. Knox-

ville Water Co., 212 U. S. 1). Still others have to do with control of the radio, film and similar industries.

(Federal Radio Comm'n v. Nelson Bros. Co., 289 U. S.

266; Mutual Film Corp. v. Ohio Industrial Comm'n, 236

U. S. 245; see also, Pacific States Box & Basket Co. v.

White, 296 U. 5. 176.) One deals with the functions of the Secretary of War, confided to him under the constitu- (Union Bridge tional power to control navigable waters.

Co. v. United States, 204 U. S. 364.)

In all those cases the question arose under legislation already in operation 'and with respect to delegation of power over administrative details incident to its enforce- ment. No one of them involved a determination of a condition upon the happening of which a law not yet in effect was or was nof to be put into operation.

Distinguishing alsi: The Aurora, 7 Cranch 382; United States v. Chavez, 228 U. S. 525; United States v. Mesa, 228 U. S. 533; Talbott v. United States, 208 Fed. 144, cert. den., 232 U. S. 722; and United States v. Lucas, 6 F. (2d) 327. Cf. Langworth v. Kadel, 141 Kan. 256.

In the present case, the President was under no com- pulsion to issue his Proclamation unless he should choose It seems clear that under the principle of the to do so.

Field and Panama cases, such lack of explicit directions and mandatory force is fatal to the validity of the Reso- lution.

The Resolution is invalid because its duration, if ever it went into operation, was left likewise to the uncon- trolled discretion of the President.

Argument for Appellees.

The power to prescribe limitations and exceptions in- validates the Resolution.

The prohibition of the sale of arms and munitions never went into effect because the President failed to comply with the conditions prescribed by the Joint Reso- lution. While the courts will not investigate the manner in which the President or any other high official has car- ried out an executive or administrative function (Phila- delphia & Trenton Ry. v. Stimpson, 14 Pet. 448), the rule has no application where a delegation of legislative power is involved. Panaima Refining Co. v. Ryan, 293

The rule is well established (Wichita Railroad & Light Co. v. Public Utilities Cornm'n, 260 U. S. 48, 59; Mahler

v. Eby, 264 U. S. 32, 44) that, where legislative power

has been delegated, not only a substantial compliance with the conditions laid down by the legislative body is required, but also an affirmative showing that this has been done.

From the proclamation it appears that the President consulted with the Governments of other American Re- publics and that he secured assurances of the coS1peratioti of such Governments as he deemed necessary. There is no express declaration-no affirmative stateinieiit-that "such Governments as I have deemed necessary" included any American Republic.

The phrase "as contemplated by the said Joint Resolu- tion" is not sufficient to indicate unequivocally that the President was asserting a full compliance.

But even if the proclamation be construed as asserting such compliance in general terms, or as a conclusion of the President, this would not resolve the difficulty. The broader underlying question would still remain, whether such a general phrase amounts to an affirmative showing of compliance. This Court has held otherwise in Mahler

v. Eby, supra.

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

The Joint Resolution is not presently valid, or alive for the purpose of sustaining prosecution for offenses here- tofore committed thereunder.

The Joint Resolution was intended as a temporary pro- vision, to be in force during the period between the first proclamation putting the prohibition into effect, and the It was to be effective later proclamation removing it. "until otherwise ordered by the President or by Con- gress." That time lmit was reached when the revoking proclamation was issued: Having then expired, no fur- ther judicial proceedings could be had thereunder, unless competent authority had kept it alive for that purpose.

Yeaton v. United States, 5 Cranh 281, 283-4; United States v. Chambers, 291 U. S. 207; The Rachel, 6 Cranch 329..

Revised Statutes, § 13, by its terms, is applicable only where a statute has been "repealed." The word "repeal" means the abrogation of one statute by another statute.

Mr. Neil P. Cullom was on the brief for Barr Shipping Corp. et al., appellees.

MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

On January 27, 1936, an indictment vas returned in the court below, the first 'count of which charges that appel- lees, beginning with the 29th day of May, 1934, conspired to sell in the United States certain arms of war, namely fifteen machine guns, to Bolivia, a country then engaged in armed conflict in the Chaco, in violation of the Joint Resolution of Congress approved May 28, 1934, and the provisions of a proclamation issued on the same day by the President of the United States pursuant to authority In pursuance of the conferred by § 1 of the resolution. conspiracy, the commission of certain overt acts was alleged, details of which need not be stated. The Joint

,312

Opinion of the Court.

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That 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 be- tween those countries, and if after consultation with the governments of other American Republics and with their co6peration, as well as that of such other governments as he may deem necessary, he makes proclamation to that effect, it shall be unlawful to sell, except under such limi- tations and exceptions as the President prescribes, any arms or munitions of war in any place in the United States to the countries now engaged in that armed con- flict, or to any person, company, or association acting in the interest of either country, until otherwise ordered by the President or by Congress.

"See. 2. Whoever sells any arms or munitions of war in violation of section 1 shall, on conviction, be punished by a fine not exceeding $10,000 or by imprisonment not exceeding two years, or both."

The President's proclamation (48 Stat. 1744). after re-

"Now, therefore,

I, Franklin D. Roosevelt, Presi- dent of the United States of America, acting under all(I by virtue of the authority conferred in me by the said joint resolution of Congress, do hereby declare and pro- claim that I have found 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 be- tween those countries, and that I have consulted with the governments of other American Republics and have been assured of the cobperation of such governments as I have deemed necessary as contemplated by the said joint reso- lution; and I do hereby admonish all citizens of the

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

United States and every person to abstain from every vio- lation of the provisions of the joint resolution above set forth, hereby made applicable to Bolivia and Paraguay, and I do hereby warn them that all violations of such pro- visions will be rigorously prosecuted.

"And I do hereby enjoin upon all officers of the United States'charged with the execution of the laws thereof, the utmost diligence in preventing violations of the said joint resolution and this my proclamation issued thereunder, and in bringing to trial and punishment any offenders against the same.

"And I do hereby delegate to the Secretary of State the power of prescribing exceptions and limitations to the application of the said joint resolution of May 28, 1934, as made effective by this my proclamation issued there- under."

On November 14, 1935, this proclamation was revoked

"Now,

therefore, I, Franklin D. Roosevelt, Presi- dent of the United States of America, do hereby declare and proclaim that I have found that the prohibition ,of the sale of arms and munitions of war in the United States to Bolivia or Paraguay will no longer be necessary as a contribution to the reestablishment of peace between those countries, and the above-mentioned Proclamation of May 28, 1934, is hereby revoked as to the sale of arms and munitions of war to Bolivia or Paraguay from and after November 29, 1935, provided, however, that this action shall not have the effect of releasing or extinguish- ing any penalty, forfeiture or liability incurred under the aforesaid Proclamation of May 28, 1934, or the Joint Resolution of Congress approved by the President on the same date; and that the said Proclamation and Joint Res- olution shall be treated as remaining in force for the pur- pose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability."

Opinion of the Court.

Appellees severally demurred to the first count of the indictment on the grounds (1) that it did not charge facts sufficient to show the commission by appellees of any offense against any law of the United States;

(2) that this count of the indictment charges a conspiracy

to violate the joint resolution and the Presidential procla- mation, both of which had expired according to the terms of the joint resolution by reason of the revocation con- tained in the Presidential proclamation of November 14, 1935, and were not in force at the time when the indict- ment was found. The points urged in support of the demurrers were, first, that the joint resolution effects an invalid delegation of legislative power to the executive; second, that the joint resolution never became effective because of the failure of the President to find essential jurisdictional facts; and third, that the second proclama- tion operated to put an end to the alleged liability under the joint resolution'.

The court below sustained the demurrers upon the first point, but overruled them on the second and third points. 14 F. Supp. 230. The government appealed to this court under the provisions of the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, as amended, U. S. C.

Title 18, § 682. That act authorizes the United States to appeal from a district court direct to this court in criminal cases where, among other things, the decision sustaining a demurrer to the indictment or any count thereof is based upon the invalidity or construction of the statute upon which the indictment is' founded.

First. It is contended that by the Joint Resolution, the going into effect and continued operation of the reso- lution was conditioned (a) upon the President's judg- ment as to its beneficial effect upon the reestablishment of peace between the countries engaged in armed con- flict in the Chaco; (b) upon the making of a proclama,

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

tion, which was left to his unfettered discretion, thus constituting an attempted substitution of the President's will for that of Congress; (c) upon the making of a proclamation putting an end to the operation of the reso- lution, which again was left to the President's unfettered discretion; and (d) further, that the extent of its opera- tion in particular cases was subject to limitation and ex- ception by the President, controlled by no standard. In each of these particulars, appellees urge that Congress abdicated its essential functions and delegated them to the Executive.

Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the cate- gory of foreign affairs. The determination which we are called to make, therefore, is whether the Joint Resolu- tion, as applied to that situation, is vulnerable to attack under the rule that forbids a delegation of the law-mak- ing power. In other words, assuming (but not deciding) that the challenged delegation, if it were confined to in- ternal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?

It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs. That there are differences between them, and that these differ- ences are fundamental, may not be doubted.

The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except

316

Opinion of the Court.

those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purl -se of the Constitution was to carve from the general mass of legislative powers then possessed by the states such portions as it was thought desirable to vest in the federal government, leaving those not inciudcd in the enumeration still in the states. Carter v. Carter Coal Co., 298 U. S. 238, 294. That this doctrine applies only to powers which the states had, is self evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. During the colonial period, those powers were possessed exclusively by and were entirely under the control of the Crown. By the Declaration of Independence, "the Representatives of the United States of America" declared the United [not the several] Colonies to be free and independent states, and as such to have "full Power to levy War, conclude Peace, contract Alliances, establish Commerce and to do all other Acts and Things which Independent States may of right do."

As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sover- eignty passed from the Crown not to the colonies sever- ally, 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 Conti- nental 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. Rulers come and go; governments end and forms of government change; but sovereignty survives. A political soc'ety cannot endure

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sov- ereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union. See Peinhallow v.

Doane, 3 Dall. 54, 80-81. That fact was given practical application almost at once. The treaty of peace, made on September 23, 1783, was concluded between his Brit- tanic Majesty and the "United States of America." 8 Stat.-European Treaties-80.

The Union existed before the Constitution, which was ordained and established among other things to form "a more perfect Union." Prior to that event, it is clear that the Union, declared by the Articles of. Confederation to be "perpetual," was the sole possessor of external sov- ereignty and in the Union it remained without change save in so far as the Constitution in express terms quali- fied its exercise. The Framers' Convention was called and exerted its powers upon the irrefutable postulate that though the states were several their people in respect of foreign affairs were one. Compare The Chinese Exclu- sion Case, 130 U. S. 581, 604, 606.

In that convention, the entire absence of state power to deal with those affairs was thus forcefully stated by Rufus King:

"The states were not 'sovereigns' in the sense contended for by some. They did not possess the peculiar features of sovereignty,-they could not make war, nor peace, nor alliances, nor treaties. Conside' ing them as political be- ings, they were dumb, for they could not speak to any foreign sovereign whatever. They were deaf, for they could not hear any propositions from such sovereign.

They had not even the organs or fatculties of defence or offence, for they could not of themselves raise troops, or equip vessels, for war."

5 Elliott's Debates 212.1 'In general confirmation of the foregoing views, see 1 Story on the

Constitution, 4th ed., §§ 198-217, and especially §§ 210, 211, 213, 214, 215 (p. 153), 216.

Opinion of the Court.

It results that the investment of the. federal govern- ment with the powers of external sovereignty did not de- pend upon the affirmative grants of the Constitution.

The powers 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.

Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens (see American Banana Co. v. United Fruit Co., 213 U. S. 347, 356); and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the prin- ciples of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign. The power to acquire territory by discovery and occupation (Jones v.

United States, 137 U. S. 202, 212), the power to expel undesirable aliens (Fong Yue Ting v. United States, 149

U. S. 698, 705 et seq.), the power to make such interna-

tional agreements as do not constitute treaties in the constitutional sense (Altman & Co. v. United States, 224

U. S. 583, 600-601; Crandall, Treaties, Their Making and

Enforcement, 2d ed., p. 102 and note 1), none of which is expressly affirmed by the Constitution, nevertheless exist as inherently inseparable from the conception of nation- ality. This the court recognized, and in each of the cases cited found the warrant for its conclusions not in the pro- visions of the Constitution, but in the law of nations.

In Burnet v. Brooks, 288 U. S. 378, 396, we said, "As a nation with all the attributes of sovereignty, the United States is vested with all the powers of government neces- sary to maintain an effective control of international re- lations." Cf. Carter v. Carter Coal Co., supra, p. 295.

U. S. v. CURTISS-WRIGHT CORP.

• 319

304

Opinion of, the Court.

Not only, as we have shown, is the federal power over external affairs in origin and essential character different from that over internal affairs, but participation in the exercise of the power is significantly limited.

In this vast external realm, with its important, complicated, deli- cate and manifold problems, the President alone has the power to speak or listen as a representative of the nation.

He makes treaties with the advice and consent of the Senate; *but he alone negotiates. Into the field of negotia- tion the Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the House of Representa- tives, "The President is the sole organ of the nation in its extirnal relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613. The Senate Com- mittee on Foreign Relations at a very early day in our history (February 15, 1816), reported to the Senate,

"The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. For his conduct he is responsible to the Constitution. The committee con- sider this responsibility the surest pledge for the faithful discharge of his duty. They think the interference of the Senate in the direction of foreign negotiations calculated to diminish that responsibility and thereby to impair the best security for the national safety. The nature of transactions with foreign nations, moreover, requires cau- tion and unity of design, and their success frequently de- pends on secrecy and dispatch." U. S. Senate, Reports, Committee on Foreign Relations, vol. 8, p. 24.

It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an

320

Opinion of the Court.

'

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-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other govern- mental power, must be exercised in subordination to the applicable provisions of the Constitution. It is quite ap- parent that if, in the maintenance of our international relations, embarrassment-perhaps serious embarrass- ment-is to be avoided and success for our aims achieved, congressional leg; ion which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of dis- cretion and freedom from statutory restriction which would not be admissible were domestic affairs alone in- volved. Moreover, he, not Congress, has the better op- portunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature dis- closure of it productive of harmful results.

Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Represen- tatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty-a refusal the wisdom of which was recognized by the House itself and has never since been doubted.

In his reply to the

"The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disctosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely

304

Opinion of the Court.

impolitic; for this might have a pernicious muence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.

The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous 1 Messages and Papers of the Presidents, precedent."

p. 194.

The marked difference between foreign affairs and do- mestic affairs in this respect is recognized by both houses of Congress in the very form of their requisitions for in- In the ease formation from the executive departments. of every department except the Department of State, the resolution directs the official to furnish the informa- tion. In the case of the State Department, dealirg with foreign affairs, the President is requested to furnish the information "if not incompatible with the public inter- est." A statement that to furnish the information is not' compatible with the public interest rarely, if ever, is questioned.

When the President is to be authorized by legislation to act in respect of a matter intended to affect a situation in foreign territory, the legislator properly bears in mind the important consideration that the form of the Presi- dent's action-or, indeed, whether he shall act at all- may well depend, among other things, upon the nature of the confidential information which he has or may there- after receive, or upon the effect which his action may have upon our foreign relations. This consideration, in con- nection with what we have already said on the subject, discloses the unwisdom of requiring Congress in this field

Opinion of the Court.

of governmental power to lay down narrowly definite standards by which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299, 311, "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. We should hesitate long before limiting or embarrassing such powers."

(Italics supplied.)

In the light of the foregoing observations, it is evident that this court should not be in haste to apply a general rule which will have the effect of condemning legislation like that under review as constituting an unlawful dele- gation of legislative power. The principles which justify such legislation find overwhelming support in the un- broken legislative practice which has prevailed almost from the inception of the national government to the present day.

Let us examine, in chronological order, the acts of legis-

The Act of June 4, 1794, authorized the President to lay, regulate and revoke embargoes. He was "author- ized" "whenever, in his opinion, the public safety shall so require" to lay the embargo upon all ships and vessels in the ports of the United State6, including those of foreign nations "under such regulations as the circumstances of the case may require, and to continue or revoke the same, whenever he shall think proper." C. 41, 1 Stat. 372. A 'prior joint resolution of May 7, 1794 (1 Stat. 401), had conferred unqualified power on the President to grant clearances, notwithstanding an existing embargo, to ships or vessels belonging to citizens of the United States bound to any port beyond the Cape of Good Hope.

The Act of March 3, 1795 (c. 53, 1 Stat. 444), gave the President authority to permit the exportation of arms, cannon and military stores, the law prohibiting such ex-

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

ports to the contrary notwithstanding, the only pre- scribed guide for his, action being- that such exports should be in "cases connected with the security of the commercial interest of the United States, and for public purposes only."

By the Act of June 13, 1798 (c. 53, § 5, 1 Stat. 566), it was provided that if the government of France "shall clearly disavow, and shall be found to refrain from the theretofore aggressions, depredations and hostilities" maintained against vessels and property of the citizens of the United States, "in violation of the faith of treaties, and the laws of nations, and shall thereby acknowledge the just claims of the United States to be considered as in it shall be lawful for the all respects neutral, .

President of the United States, being well ascertained of the premises, to remit and discontinue the prohibitions and restraints hereby enacted and declared; and he shall be, and is hereby authorized to make proclamation thereof accordingly."

.

.

By § 4 of the Act of February 9, 1799 (c. 2, 1 Stat.

615), it was made "lawful" for the President, "if he shall deem it expedient and consistent with the interest of the United States," by order to remit certain restraints and prohibitions imposed by the act with respect to the French Republic, and also to revoke any such order "whenever, in his opinion, the interest of the United States shall require."

Similar authority, qualified in the same way, was con- ferred by § 6 of the Act of February 7, 1800, c. 10, 2 Stat. 9.

Section 5 of the Act of March 3, 1805 (c. 41, 2 Stat.

341), made it lawful for the President, whenever an armed vessel entering the harbors or waters within the jurisdiction of the United States and required to depart therefrom should fail to do so, not only to employ the land and naval forces to compel obedience. but "if he

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Opinion of the Court.

shall think it proper, it shall be lawful for him to forbid, by proclamation, all intercourse with such vessel, and with every armed vessel of the same nation, and the officers and crew thereof; to prohibit all supplies and aid from being furnished them" and to do various other things connected therewith. Violation of the President's proclamation was penalized.

On February 28, 1806, an act was passed (c. 9, 2 Stat.

351) to suspend commercial intercourse between the United States and certain parts of the Island of St. Do- mingo. A penalty was prescribed for its violation. Not- withstanding the positive provisions of the act, it was by § 5 made "lawful" for the President to remit and discon- tinue the restraints and prohibitions imposed by the act at any time "if he shall deem it expedient and consistent with the interests of the United States" to do so. Like- wise in respect of the Non-intercourse Act of March 1, 1809, (c. 24, 2 Stat. 528); the President was "authorized" (§ 11, p. 530), in case either of the countries affected should so revoke or modify her edicts "as that they shall cease to violate the neutral commerce of the United States," to proclaim the fact, after which the suspended trade might be renewed with the nation so doing.

Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exer- cise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.

Many, though not all, of these acts are designated in the footnote.'

'Thus,.the President has been broadly "authorized" to suspend em-

bargo acts passed by Congress, "if in his judgment the public interest should require it" (Act of December 19, 1806, c. 1, § 3, 2 Stat. 411), or if, "in the judgment of the President," there has been such suspen-

325 304

Opinion of the Court.

It well may be assumed that these legislative prece- dents were in mind when Congress passed the joint reso- lutions of April 22, 1898, 30 Stat. 739; March 14, 1912, 37 Stat. 630; and January 31, 1922, 42 Stat. 361, to prohibit the export of coal or other var material. The resolution of 1898 authorized the President "in his discretion, and with such limitations and exceptions as shall seem to him expedient" to prohibit such exportations. The striking identity of language found in the second resolution men- tioned above and in the one now under review will be

sion of hostilities abroad as may render commerce of the United States sufficiently safe. Act of April 22, 1808, c. 52, 2 Stat. 490.

See, also, Act of March 3, 1817, c. 39, § 2, 3 Stat. 361. Compare, but as to reviving an embargo act, the Act of May 1, 1810, c. 39, § 4, 2 Stat. 605.

Likewise, Congress has passed numerous acts laying tonnage and other duties on foreign ships, in retaliation for duties enforced on United States vessels, but providing that if the President should be satisfied that the countervailing duties were repealed or abolished, then he might by proclamation suspend the duties as to vessels of the nation so acting. Thus, the President has been "authorized" to proclaim the suspension. Act of January 7, 1824, c. 4, § 4, 4 Stat. 3; Act of May 24, 1828, c. 111, 4 Stat. 308; Act of July 24, 1897, c. 13, 30 Stat. 214. Or it has been provided that the suspension should take, effect whenever the President "shall be satisfied" that the discriminat-' ing duties have been abolished. Act of March 3, 1815, c. 77, 3 Stat.

224; Act of May 31, 1830, c. 219, § 2, 4 Stat. 425. Or that the President "may direct" that the tonnage duty shall cease to be levied in such circumstances. Act of July 13, 1832, c. 207, § 3, 4 Stat. 578.

And compare Act of June 26, 1884, c. 121, § 14, 23 Stat. 53, 57.

Other acts, for retaliation against discriminations as to United States commerce, have placed broad powers in the hands of the Presi- dent, "authorizing" even the total exclusion of vessels of any foreign country so offending (Act of June 19, 1886, c. 421, § 17, 24 Stat. 79, 83), or the increase of duties on its goods or their total exclusion from the United States (Act of June 17, 1930, c. 497, § 388, 46 Stat.

590, 704), or the exclusion of its goods or the detention, in certain circumstances, of its vessels, or the exclusion of its vessels or nationals from privileges similar to those which it has denied to citizens of the .Urited States (Act of September 8, 1916, c. 463, §§ 804-806, 39 Stat.

326

Opinion of the Court.

seen upon comparison. The resolution of March 14, 1912,

"That whenever the President shall find that in any American country conditions of dowestic violence exist which are promoted b the use of arms or munitions of war procured from the United States, and shall make proclamation thereof, it shall be unlawful to export ex- cept under such limitations and exceptions as the Presi-

.

.

.

756, 799-800). As to discriminations by particular countries, it has been made lawful for the President, by proclamation, which he "may in his discretion, apply to any part or all" of the subjects named, to exclude certain goods of the offending country, or its vessels. Act of March 3, 1887, c. 339, 24 Stat. 475. And compare- Act of July 26, 1892, c. 248, 27 Stat. 267. Compare, also, authority given the Postmaster General to reduce or enlarge rates of foreign postage, among other things, for the purpose of counteracting any adverse measures affecting our postal intercourse with foreign coun- tries. Act of March 3, 1851, c. 20, § 2, 9 Stat. 587, 589.

The President has been "authorized" to suspend an act providing for the exercise of judicial functions by ministers, consuls and other officers of the United States in the Ottoman dominions and Egypt whenever he "shall receive satisfactory information" that the govern- ments concerned have organized tribunals likely to secure to United States citizens the same impartial justice enjoyed under the judicial functions exercised by the United States officials. Act of March 23, 1874, c. 62, 18 Stat. 23.

Congress has also passed acts for the enforcement of treaties or conventions, to be effective only upon proclamation of the President.

Some of them may. be noted which "authorize" the President to make proclamation when he shall be "satisfied" or shall receive "satisfactory evidence" that the other nation has complied: Act of August 5, 1854,

c. 269, §§ 1, 2, 10 Stat. 587; Act of March 1, 1873, c. 213, §§ 1, 2,

17 Stat. 482; Act of 'August 15, 1876, c. 290, 19 Stat. 200; Act of December 17, 1903, c. 1, §'1, 33 Stat. 3. Cf. Act of June 11, 1864,

c. 116, § 1, 13 Stat. 121; Act of February 21, 1893, c. 150, 27 Stat.

472. / Where appropriate, Congress has provided that violation of the President's proclamations authorized by the foregoing acts shall be penalized. See, e. g., Act of June 19, 1886; Act of March 3, 1887; Act'of September 8, 1916; Act. of June 17, 1930-all supra.

304

Opinion of the Court.

dent shall prescribe any arms or munitions of war fr9m any place in the United States to such country until otherwise ordered by the President or by Congress.

"SEc. 2. That any shipment of material hereby de- clared unlawful after such a proclamation shall be pun- ishable by fine not exceeding ten thousand dollars, or imprisonment not exceeding two years, or both."

The third resolution is in substantially the same terms, but extends to any country in which the United States exercises extraterritorial jurisdiction, and provides for the President's action not only when conditions of domes- tic violence exist which are promoted, but also when such conditions may be promoted, by the use of such arms or munitions of war.

We had occasion to review these embargo and kindred acts in connection with an exhaustive discussion of the general jsubject of delegation of legislative power in a recent case, Panama Refining Co. v. Ryan, 293 U. S. 388, 421-422, and in justifying such acts, pointed out that they confided to the President "an authority which was cognate to the conduct by him of the foreign relations of the government."

The result of holding that the joint resolution here under attack is void and unenforceable as constituting an unlawful delegation of legislative power would -be to stamp this multitude of comparable acts and resolutions as likewise invalid. And while this court may not,. and should not, hesitate to deblare acts of Congress, however many times repeated, to be unconstitutional if beyond all rational doubt it finds °them to be so, an impressive array of legislation such as we have just set forth, en- acted by nearly every Congress from the beginning of our national existence to the present day, must be given un- usual weight in the process of reaching a correct deter- mination of the problem. A legislative practice such as we have here, evidenced not by only occaional instances;

Opinion of the Court.

but marked by the movement of a steady stream for a century and a half of time, goes a long way in the direc- tion of proving the presence of unassailable ground for the' constitutionality of the practice, to be found in the origin and history of the power involved, or in its nature, or in both combined.

In The Laura, 114 U. S. 411, 416, this court answered a challenge to the constitutionality of a statute authoriz- ing the Secretary of the Treasury to remit or mitigate fines and penalties in certain cases, by repeating the lan- guage of a very early case (Stuart v. Laird, 1 Cranch 299,

309) that the long practice and acquiescence under the

statute was a "practical exposition . . . too strong and obstinate to be shaken or controlled. Of course, the ques- tion is at rest, and ought not now to be disturbed."

In Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57, the constitutionality of R. S. § 4952, conferring upon the author, inventor, designer or proprietor, of a photo- graph certain rights, was involved. Mr. Justice Miller,

"The construction placed upon the Constitution by the first act of 1790, and the act of 1802, by the men who were contemporary with .its formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight, and when it is remembered that the rights thus established have not been disputed during a period of nearly a century, it is almost con- clusive."

In Field v. Clark, 143 U. S. 649, 691, this court declared that" . . . the practical construction of the Constitution, as given by so -many acts of Congress, and embracing almost the entire period of our national existence, should not be overruled, unless upon a conviction that such legis- lation was clearly incompatible with the supreme law of the land." The rule is one which has been stated and applied many times by this court. As examples, see

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

Ames v. Kansas, 111 U. S. 449, 469; McCulloch v. Mary- land, 4 Wheat. 316, 401; Downes v. Bidwell, 182 U. S. 244, 286.

The uniform, long-continued and undisputed legisla- tive practice just disclosed rests upon an admissible view of the Constitution which, even if the practice found far less support in principle than we think it does, we should not feel at liberty at this late day to disturb.

We deem it unnecessary to consider, seriatim, the sev- eral clauses which are said to evidence the unconstitu- tionality of the Joint Resolution as' involving an unlaw- ful delegation of legislative power.

It is enough to sum- marize by saying that, both upon principle and. in ac- cordance with precedent, we conclude there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the reestablishnent of peace in the affected countries; whether he shall make procla- mation to bring the resolution into operation; whether and when the resolution shall cease to operate and to make proclamation accordingly; and to prescribe limita- tions and exceptions to which the enforcement o. the resolution shall be subject.

Second. The second point raised by the. demurrer was that the Joint Resolution never became effective because the President failed to find essential jurisdictional facts;, and the third point was that the second proclamation of the President operated to put an end to the alleged lia- bility of appellees under the Joint Resolution. In respect of both points, the court below overruled the demurrer, and thus far sustained the government.

The government contends that upon an appeal by the United States under the Criminal Appeals Act from a de- cision holding an indictment bad, the jurisdiction of the court does not extend to questions decided in favor of the United States, but that such questions may only be re-

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Opinion of the Court.

viewed in the usual way after conviction. We find noth- ing in the words of the statute or in its purposes which justifies this conclusion. The demurrer in the present case challenges the validity of the statute upon three separate If the court below had sustained and distinct grounds. the demurrer without more, an appeal by the government necessarily would have brought here for our determina- tion all of these grounds, since in that case the record would not have disclosed whether the court considered the statute invalid upon one particular ground or upon all of the grounds alleged. The judgment of the lower court is that the statute is invalid. Having held that this judgment cannot be sustained upon the particular ground which that court assigned, it is now open to this court to ,inquire whether or not the judgment can be sustained upon the rejected grounds which also challenge the valid- ity of the statute and, therefore, constitute a proper sub- ject of review by this court under the Criminal Appeals Act. United States v. Hastings, 296 U. S. 188, 192.

In Langnes v. Green, 282 U. S. 531, where the decree of a district court had been assailed upon two grounds and the circuit court of appeals had sustained the attack upon one of such grounds only, we held that a respondent in certiorari might nevertheless urge in this court in sup- port of the -decree the ground which the intermediate appellate court had rip.pcfted That principle is appli- cable here.

We proceed, then, to a consideration of the second and third grounds of the demurrers which, as we have said, the court below rejected.

that the prohibition of the sale of arms and munitions of war in the United States to those countries now en- gaged in armed conflict in.the Chaco may contribute to the reestablishmient of peace between those countries,

U. S. v. CURTISS-WRIGHT CORP. 331 304

Opinion of the Court.

and that I have consulted with the governments of other American Republics and have been assured of the co6p- eration of such governments as I have deemed necessary as contemplated by the said joint resolution." This find- ing satisfies every requirement of the Joint Resolution.

There is no suggestion that the resolution is fatally uncer- tain or indefinite; and a finding which follows its lan- guage, as this finding does, cannot well be challenged hs insufficient.

But appellees, referring to the words which we have italicized above, contend. that the finding is insufficient because the President does not declare that the cobp- eration of such governments as he deemed necessary in- cluded any American republic and, therefore, the recital contains no affirmative showing of compliance in this re- spect with the Joint Resolution. The criticism seems to us wholly wanting in substance. The President recites that he has consulted with the governments of other American republics, and that he has been assured of the co6peration of such governments as he deemed necessary as contemplated by the joint resolution. These recitals, construed together, fairly include within their meaning American republics.

the first proclamation, it is urged, had the effect of putting an end to the Joint Resolution, and in accordance with a well-settled rule, no penalty could be enforced or punish- ment inflicted thereafter for an offense committed during the life of the Joint Resolution in the absence of a provi- sion in the resolution to that effect. There is no doubt as to the general rule or as to the absence of a saving clause in the Joint Resolution. But is the case presented one whiph makes the rule applicable?

It was not within the power of the President to repeal the Joint Resolution; and his second proclamation did not

Opinion of the Court.

It "revoked" the first proclamation; purport to do so. and the question is, did the revocation of'the proclama- .tion have the effect of abrogating the resolution or of pre- cluding its enforcement in so far as that involved the pros- ecution and pqnishment of offenses committed during the life of the trst proclamation? We are of opinion that it did not.

Prior to the first proclamation, the Joint Resolution was an existing law, but dormant, awaiting the creation of a particular situation to render it active. No action or lack of action on the part of the President could destroy its potentiality. Congress alone could do that. The hap- pening of the designated events--namely, the finding of certain conditions and the proclamation by the Presi- dent-did not call the law into being. It created the occa- sion for it to function. The second proclamation did not put an end to the law or affect what had been done in violation of the law. The effect of the proclamation was simply to remove for the future, a condition of affairs which admitted of its exercise.

We should have had a different case if the Joint Reso- lution had expired by its own terms upon the issue of the Its operative force, it is true, was second proclamation. limited to the period of time covered by the fist procla- mation. And when the second proclamation was issued, the resolution ceased to be a rule for the future. It did not cease to be the law for the antecedent period of time.

The distinction is clearly pointed out by the Superior Court of Judicature of New Hampshire in Stevens v. Di- mond, 6 N. H. 330, 332, 333. There, a town by-law pro- vided that if certain animals should be found going at large between the first day of April and the last day of October, etc., the owner would incur a prescribed penalty.

The tralI court directed the jury that the by-law, being in force for a y~ar only, had expired so that the defendant could not be called upon to answer for a violation which

U. S. v. CURTISS-WRIGHT CORP. 304

Opinion of the Court.

occurred during the designated period. The state appel- late court reversed, saying that when laws "expire by their own limitation, or are repealed, they cease to be the law in relation to the past, as well as the future, and can no longer be enforced in any case. No case is, however, to be found in which it was ever held before that they thus ceased to be law, unless they expired by express limita- It has never been tion in themselves, or were repealed. decided that they cease to be law, merely because the time they were intended to regulate had expired. ... A very little consideration of the subject will convince any one that a limitation of the time to which a statute is to apply, is a very different thing from the limitation of the time a statute is to continue in force."

The first proclamation of the President was in force from the 28th day of May, 1934, to the 14th day of No- If the Joint Resolution had in no way de- vember, 1935. pended upon Presidential action, but had provided ex- plicitly that, at any time between May 28, 1934, and November 14, 1935, it should be unlawful to sell arms or munitions of war to the countries engaged in armed con- flict in the Chaco, it certainly could not be successfully contended that the law would expire with the passing of the time fixed in respect of offenses committed during the period.

The judgment of the court below must be reversed and the cause remanded for further proceedings in accordance with the foregoing opinion.

Reversed.

MR. JUSTICE McREYNOLDS does not agree. He is of opinion that the court below reached the right conclu- sion and its judgment ought to be affirmed.

M\R. JUSTICE STONE took no part in the consideration or decision of this case.