the power of congress to limit the jurisdiction of federal courts: an exercise in dialectic

7/25/2019 The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic

1/41

THE

POWER

OF

CONGRESS

TO

LIMIT

THE

JURISDICTION

OF

FEDERAL

COURTS:

AN

EXERCISE

IN

DIALECTIC

Henry

M.

Hart

Jr.

INTRODU TORY

NOTE

he

reports

are

full

of

what

may

be

thought

to

be injudiciously

unqualified

statements

of the

power

of

Congress

to

regulate

the jurisdiction

of

the

federal courts.

Before

the

close

of the

eighteenth

century,

Justice

Samuel

Chase

observed

that

the

political

truth

is,

that

the

disposal

of

the

judicial

power

(except

in

a few

specified

instances)

belongs

to

congress.

If

congress

has

given

the

power

to this

court,

we

pos-

sess it,

not otherwise

.

1..

Speaking

in

mid-nineteenth

cen-

tury

of the

inferior

federal

courts,

Justice

Grier

said

flatly,

Courts

created

by

statute

can

have

no jurisdiction

but

such

as the

statute

confers.

2

No longer

than ten

years

ago

Chief

Justice

Stone

spoke,

if

anything,

with

added

emphasis:

The

Congressional

power

to ordain

and

establish

inferior

courts

includes

the

power

'of

investing

them

with

jurisdiction

either

limited,

concurrent,

or

ex-

clusive,

and

of

withholding

jurisdiction

from

them

in the

exact

degrees

and

character

which

to

Congress

may

seem proper

for

the

public

good.'

And

in

perhaps

the

most

spectacular

of

historic

* Professor

of

Law,

Harvard

Law School.

A.B.,

Harvard,

1926

LL.B.,

1930,

S.J.D.,

1931.

'Turner

v.

Bank

of North

America,

4 Dall.

8, io

n.i

U.S.

1799).

Even

though

diversity

of

citizenship

existed

between

the

plaintiff

and

the

defendant,

an

action

on

a

promissory

note

was

dismissed

for lack

of

jurisdiction,

since

it

was

not

affirmatively

shown

that

the

requisite

statutory

diversity

existed

between

the

original

promisee

and

the

defendant.

2

Sheldon v.

Sill, 8

How. 441,

449 (U.S. 18o)

(no statutory

jurisdiction

in

foreclosure

action

when

mortgagor

and mortgagee

were

residents

of

same

state,

even

though

there

was

diversity

between

mortgagor

and mortgagee's

assignee).

ILockerty

v. Phillips,

319 U.S.

182,

187

(1943),

upholding

a

denial

of

jurisdic-

tion

to federal

district

courts

and

state

courts

to enjoin

enforcement

of

OPA

regulations,

a

special

statutory

procedure having been provided for administrative

protest

and appeal

to

a specially

constituted

court

of

appeals.

Chief

Justice

Stone's

quotation

is from

Cary

v. Curtis,

How.

236

245

(U.S.

1845).

See

pp.

1367-69

infr

36


2/41

CONTROL OF FEDERAL JURISDICTION

examples a unanimous

Supreme

Court recognized the

power of

Congress to frustrate

a determination of

the constitutionality of

the

post-Civil

War reconstruction

legislation by withdrawing,

dur-

ing

the

very

pendency

of

an

appeal,

its

jurisdiction

to

review

de-

cisions

of

the

federal

circuit courts in

habeas corpus. [T]he

power

to make exceptions

to the appellate jurisdiction of

this

court is given

by

express

words, Chief

Justice Salmon

P.

Chase

said. Without

jurisdiction the court

cannot proceed at all

in any

cause.

Jurisdiction is

power to declare

the law, and when

it

ceases

to

exist,

the only function

remaining to the court is

that

of

an-

nouncing the

fact and

dismissing

the cause.

4

Are

these

pronouncements to be

taken

at

face

value?

How,

if

so,

can they be

reconciled

with

the basic presuppositions of a

regime

of law

and

of

constitutional

government? These

are the

central

questions explored

in

the

discussion which

follows.

The

discussion

is

taken

from a forthcoming

volume of

teaching

materials which Professor Herbert

Wechsler of Columbia

and I

have

edited,

5

and

it has profited greatly from

his collaboration.

The purpose of

the discussion is not

to proffer final answers

but

to ventilate

the questions and, in particular,

to

indicate

the

very

distinct

types

of situations

in which

they may

be

presented. As

will be observed, full

advantage has

been taken

of

the ambivalence

of the dialogue form;

and, beyond that,

some

matters have

been

left

without

benefit

even of

a unilateral expression of opinion.

I LIMITATIONS

AS

TO

WHICH

COURT HAS JURISDICTION

Q Does the Constitution give people

any

right to proceed

or

be proceeded

against,

in

the first instance,

in

a

federal

rather than

a state court?

A

It's hard to

see

how

the answer can be anything

but no, in

view of

cases

like Sheldon v Sill

I and Lauf v E.

G.

Skinner

Co.

and

in

view

of

the

language

and

history

of

the

Constitution

itself.

Congress

seems to

have plenary

power to

limit federal

Ex

parte

McCardle,

Wall. 5o6, 514 U.S.

i868).

HART AND

WECuSLER, THE

FEDERAL

CouRTs AND

TME FEDERA SYSTEm,

which

will be published in September,

1953,

by

The Foundation

Press, Inc., of Brook-

lyn, N

Y

e 8

How. 441 U.S. i85o),

see note 2 supra.

S303 U.S. 323

1938) (enforcing provisions

of Norris-LaGuardia

Act denying

jurisdiction

to federal district courts to

grant

injunctions

in labor

disputes

in

absence of

certain findings

of fact).

95 ]

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3/41

HARVARD

LAW

REVIEW

jurisdiction

when

the consequence

is

merely to force proceedings

to

be brought, if

at

all,

in a state

court."

Q

But

suppose

the

state

court

disclaims

any

jurisdiction?

A

If

federal

rights are

involved,

perhaps

the

state

courts

are

under

a

constitutional

obligation

to vindicate

them.

9

There are

cases, like

Testa v

Katt,

10

and

General

Oil Co

v

Crain,

which

seem

to

say so.

Q

But

even assuming

the

obligation,

and

I gather

it's some-

thing

of an

assumption,

only the Supreme

Court can enforce

it if

the state courts

balk. The McCardle

2 case says

that

the appel-

late

jurisdiction of

the Supreme

Court

is

entirely within Con-

gressional

control.

A

You

read

the

McCardle

case

for

all

it

might be worth

rather

than the least

it

has to be

worth, don't you?

Q No, I

read it

in terms

of the

language

of

the Constitution

and

the antecedent

theory

that the

Court articulated

in explaining

its decision.

This

seems

to

me

to lead

inevitably

to

the

same

re-

sult, whatever

jurisdiction

is

denied to

the Court.

A

You would

treat

the

Constitution

then, as authorizing

ex-

/ ceptions which

engulf

the

rule

even

to

the point of

eliminating the

appellate

jurisdiction

altogether?

How

preposterous

Q

If you

think

an exception

implies

some

residnuu of juris-

diction,

Congress

could meet

that test

by excluding

everything

but

patent

cases.

This is

so absurd,

and it is so

impossible to

lay down

any

measure

of

a

necessary

reservation

that

it seems

to

me the

language

of the

Constitution

must

be

taken

as vesting

plenary

control

in Congress.

8

Note,

however,

that

the

result of

this

is to deprive

diversity

plaintiffs like Sill

of

any

access

at

all

to

a

federal court. Is this material? Would

Congress

have

power to authorize Supreme

ourt

review of

state ourt decisions

in

diversity

of

citizenship

cases?

Cf

Plaquemines

Tropical

Fruit Co.

v.

Henderson, i7o U.S.

Ii

(1898).

9

Of

course, if

a state

court

does

adjudicate

a controversy,

the

Supremacy

I Clause

compels

it to

observe federal law. The

point in question

is

whether

the

state is

bound to

provide a forum.

1 330

U.S.

386

1947)

(Supremacy

Clause

requires

state

courts

to enforce

treble

damage

provisions

of

federal price-control

legislation even though

action

was

re-

garded

by

state

courts as penal).

21

2 9

U.S.

211

io8)

(state

court

must

entertain

a

bill

to

enjoin

state

officials

from enforcing an

allegedly

unconstitutional

tax

despite

state

statutes

withdrawing

jurisdiction

from state

courts in

such cases).

Ex p rte

McCardle,

7

Wall.

5o6 U.S. 1868).

3 U.S. CoNsT.,

Art.

II

2: "In

all the other

Cases

before

mentioned,

the

supreme

Court

shall

have

appellate Jurisdiction,

both

as to

Law

and

Fact,

with

such Exceptions, and

under such

Regulations

as the Congress shall

make."

1364

[Vol. 66


4/41

CONTROL

OF

FEDERAL

JURISDI TION

A It's not impossible for me to

lay

down a measure.

The

measure is simply

that the exceptions

must

not be

such as

will

destroy the

essential

role of

the

Supreme

Court

in

the constitu-

tional plan. McCardle you will remember,

meets that test. The

circuit courts

of

the United

States

were

still

open

in

habeas

corpus,

and the Supreme

Court

itself

could

still entertain

petitions for

the

writ which were

filed

with

it in

the

first instance.

4

Q

The

measure

seems pretty

indeterminate

to me.

A Ask yourself whether it is any more

so

than

the tests

which

the

Court has

evolved

to

meet other hard situations. But

what-

ever

the

difficulties

of

the

test, they

are

less,

are they

not, than

the

difficulties

of

reading the Constitution as

authorizing its

own

destruction?

Q

Has

the

Supreme

Court

ever done

or said anything

to

sug-

gest that it is

prepared to adopt the view

you are stating?

A

No,

it

has never

had

occasion to. Congress

so far

has

never

tried to

destroy the Constitution.

Q Passing to another

question, does the

Constitution

give

people

any right to proceed or be

proceeded against in

one

inferior

federal constitutional

court

rather than

another?

A

As

to

civil

plaintiffs, no.

Congress

has plenary

power

to

distribute jurisdiction among

such inferior

federal constitutional

courts as

it

chooses

to establish.

As

to civil

defendants, the answer

almost certainly

is

also

no.

To

be

sure,

doubts are

occasionally

suggested

about the validity

in

all circumstances

of

nation-wide service of

process, but

they

don't seem

to me to have much

substance.

15

As

to criminal

defendants,

of

course,

the answer is controlled

by

the

express

language of

the Constitution Article III,

Section

2 Paragraph 3 16 and

the

Sixth

Amendment.lr

Q

Does

the

Constitution give

people

any

right to proceed or

Ex parte Yerger, 8 Wall.

8 U.S.

1869), a

petition

in

the

Supreme

Court

for habeas corpus

and

a common law writ of certiorari. Again,

however, a decision

on the

constitutionality

of

the Reconstruction Acts

was prevented this time

by

releasing Yerger

from

the

challenged

military

custody. See

2

WARE,

THE

SUPREMM

OURT

3W

UNITED STATES

HISTORY 496-97

1937

ed.).

5 See Robertson

v. Railroad Labor Bd., 268

U.S. 61g 1925).

1 6

The Trial of all Crimes .

. shall be held in the State where the

said

Crimes

shall

have

been

committed;

but

when

not

committed

within any State, the Trial

shall be

at

such

Place or Places as the

Congress may by Law have

directed.

f In

ll criminal

prosecutions, the accused shall

enjoy the

right to a speedy

and

public trial, by an impartial

jury

of

the

State and district

wherein

the

crime

shall have been

committed

)

: 95 ]

1365


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HARVARD LAW REVIEW

be proceeded against, in the first instance,

in

an inferior federal

constitutional

court rather

than a federal legislative

court?

A

As to

criminal defendants

charged

with offenses

committed

in

one of the states, surely. As to

others, it s

hard to

say.

The

answer

may

well

vary

for

civil

plaintiffs

and

civil

defendants.

And

it

must

vary,

must

it not,

according

to

the nature of the

right

in question and

the availability

and

scope of review

in

a constitu-

tional court.

18

II. LMTATIONS OF JURISDICTION

TO

GIVE

PARTICULAR

KINDS OF REMEDIES

Q

The power

of

Congress to

regulate jurisdiction

gives

it

a

pretty

complete

power over remedies,

doesn t it? To deny a

remedy all Congress needs

to do is to deny

jurisdiction

to any

court to

give

the remedy.

A

That

question

is highly multifarious.

If what you are ask-

ing is whether the power to

regulate jurisdiction

isn t,

in

effect,

a

power to deny

rights which otherwise couldn t

be denied, why

don t

you

come right out and ask

it?

Before you do,

however, I ll take advantage

of the

question

to

make

a

point that

may help in

the

later

discussion.

The denial

of any

remedy is

one

thing that raises

the

question

we're

post-

poning. But the denial of

one remedy

while

another is left open,

or the

substitution of one for

another, is very

different.

It

must

be

plain

that

Congress

necessarily

has a wide choice

in

the selec-

Y tion

of

remedies,

and

that

a complaint

about

action

of this kind

can

rarely

be of constitutional dimension.

Q Why is that

plain?

A History

has

a lot

to

do

with

it. Take,

for

example,

the

tra-

dition of

our law that preventive relief

is the

exception

rather than

the rule. That

naturally makes it

hard

to

hold that anybody

has

a constitutional rightto an

injunction or a

declaratory judgment.?

But the basic reason, I

suppose, is the great variety

of possible

remedies

and the even

greater

variety of

reasons why in different

situations

a legislature

can

fairly

prefer one

to

another. That

sCf.

x

parte

Bakelite

Corp., 279

U.S.

438 1929).

See Katz, Federal

Legisla-

tive

Courts

43

Hav

L.

Rav.

894

1930); Notes,

46

HARv.

L.

Rav.

677 1933);

34

Coi.

L. REV. 344,

746

1934).

See

also note 26 infra.

For

cases suggesting that due process

requires an

opportunity to apply to

a

court for an interlocutory

stay of

a

state administrative order challenged

on con-

stitutional

grounds,

see

Pacific Tel. Tel.

Co.

v. Kuykendall,

265

U.S.

x96, 204-05

1924); Porter

v. Investors Syndicate, 286 U.S.

46z 1932).

1366

[Vol.

66


6/41

CONTROL

OF

FEDERAL JURISDICTION

usually

makes

it

hard to

say, when one procedure

has been pro-

vided, that

it was unreasonable to

make it

exclusive.

Witness,

for

example,

the

Yakus

2

case

and

even

more strikingly,

the

more

familiar

examples

cited

in

the

Yakus

opinion.

21

Q Please

spell

that

out a

little bit.

A Tax remedies furnish

one

of

the best

illustrations.

More

than

a hundred

years ago in

Cary

v

Curtis

2

the Supreme

Court

distressed

Justice Story and many

other

people

by holding

that

Congress

had withdrawn the traditional

right

of

action against

a collector of customs

for duties claimed to have

been

exacted

il-

legally.

Congress

soon showed that it had

never intended

to do

this

by

restoring the right

of action.

But meanwhile

the

misun-

derstanding

of

the

statute had

produced

a notable

constitutional

decision.

Story thought

it

unconstitutional to abolish

the

right

of action

against the collector.

The majority opinion

by Justice Daniel

poses very

nicely the apparent dilemma which

is the main prob-

lem

of

this discussion. It states

the contention

that

the construc-

tion adopted

would

attribute to Congress

purposes

which

would

be repugnant to the

Constitution inasmuch as

they

would

debar

the

citizen

of

his

right

to

resort

to

the courts

of

justice.

In

a

bow

to

this position, it said:

The

supremacy

of

the

Constitution

over

all

officers

and authorities,

both

of the

federal

and

state

governments,

and

the

sanctity

of

the

rights

guarantied

by

it, none

will

question.

These are

concessa on

all

sides.

24

oYaks v.

United States, 32X

U.S.

414 ( 944).

The

World

War II price control

legislation

provided that

the

validity

of

OPA regulations

could be

tested

only by

an administrative

proceeding subject to

review by

a

specially constituted

Emergency

Court

of

Appeals

and

by

the Supreme

Court on certiorari. Such a

proceeding had

to be

instituted

within

6o

days of issuance of

the

regulation

or

of

the date

when

the regulation

complained of

had become

unlawful. Because of

the

exclusive

statutory procedure to which they

had

failed

to resort, the petitioners

in Yakus

were

not allowed to

raise

the fxse of

statutory invalidity in a criminal

prosecu-

tion

for wilful violation

of

OPA regulations. The Supreme Court

affirmed

their

conviction, holding that

it

was not

a

denial of due process to

place

such

a

limitation

on the enforcement

court

when an

adequate

procedure for the

determination

of

invalidity had

been

provided

elsewhere.

2

E.g.,

Texas

& Pac.

Ry. v.

Abilene

Cotton

Oil

Co.

2 4 U.S.

426 (19o7)

(invalidity

of tariff

rate cannot be asserted

in

state

court

reparations

proceeding

without first resorting to

ICC); Anniston Mfg.

Co.

v. Davis,

301 U.S. 337

(I937)

(right to sue collector

for recovery

of

taxes under unconstitutional

statute may

be

abolished where remedy

against United States is substituted).

$ee

321 T,.S. at

445-46 for

further examples.

22

3

How.

236

U.S.

1845 .

2Id

at 245.

4

Ibid

95 ]

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HARVARD

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REVIEW

But

then

Justice

Daniel

stated the

other horn

of

the

dilemma

as if it were

an

answer:

The objection

above referred to admits

of the

most satisfactory

refuta-

tion.

This

may be found in the following positions, familiar in this and

in

most

other

governments,

viz:

that

the

government,

as

a

general

rule,

claims an

exemption from being sued in

its

own

courts.

That

although,

as

being

charged

with

the administration

of the laws, it will

resort

to

those courts as

means of securing

this great

end, it

will not permit itself

to be

impleaded

therein,

save in instances forming

conceded and ex-

press

exceptions. Secondly, in the

doctrine

so

often ruled

in this

court,

that

the

judicial

power of

the United States,

although

it has its

origin

in the

Constitution, is

(except in

enumerated instances,

applicable ex-

clusively to this court)

dependent for

its

distribution

and

organization,

and

for

the

modes of

its

exercise,

entirely upon

the

action

of Congress,

who

possess

the

sole power of creating tribunals

(inferior to

the

Supreme

Court) for

the

exercise of

the

judicial power, and of investing

them with

jurisdiction

either limited, concurrent,

or exclusive,

and

of withholding

jurisdiction

from

them in

the

exact

degrees and

character which to Con-

gress

may

seem proper for the

public good.

To deny this

position

would

be

to elevate the judicial

over

the

legislative

branch

of

the

government,

and to give to the

former powers limited by

its

own discretion merely.

2 5

Q

I

can t

see how

to

reconcile

those

two

horns.

How

did

Justice Daniel

do it?

A He escaped by way of the

power to select remedies. He

said:

The

claimant had his option to refuse payment;

the detention

of

the goods for

the

adjustment

of duties, being an incident

of probable

occurrence,

to

avoid this it

could not

be

permitted

to

effect

the abroga-

tion

of a public law, or a system

of public policy essentially connected

with the

general

action of

the government. The claimant,

moreover,

was

not without other

modes of

redress,

had

he

chosen

to

adopt

them.

He

might have

asserted his right to

the

possession

of the goods, or his

exemption

from the duties

demanded,

either

by replevin, or in an

action

of

detinue, or

perhaps

by an action

of trover, upon his tendering

the

amount of

duties

admitted

by

him

to

be

legally due. The

legitimate

inquiry

before

this court

is not whether all right of action

has

been

taken

away

from

the

party,

and the court responds

to

no such

inquiry.

26

Ibid.

6

Id.

at 2go. Neither did the Court respond to

any

such question

in

Murray's

Lessee

v.

Hoboken

Land Improvement

Co.,

18

How.

7

(U.S.

I856).

It

upheld

a summary procedure,

without

benefit

of the courts, for the

collection

by the United

States

of moneys claimed

to

be

due from

one

of its customs collectors. justice

Curtis opinion has a much-quoted

statement

carefully

limiting

the holding, and

foreshadowing later

developments

id.

at 84 :

[Vol.

66

368


8/41

CONTROL

OF

FEDER L

JURIS I TION

Q

Why bother

with

an

old case

that ducked

the

issue

that

way?

What is today s

law?

Has

a

taxpayer got

a

constitutional

right to litigate the legality

of

a

tax or

hasn t he?

A Personally,

I

think

he

has.

But

I can t

cite any really

square

decision for the

very

reason

I m

trying

to tell you.

The

multiplicity

of remedies,

and the fact that

Congress

has

seldom

if

ever tried

to take

them

all away, has

prevented the

issue from

ever being squarely presented.

For

example,

history and the necessities

of revenue alike

make

it clear

that

the

Government

must have

constitutional

power

to

make

people

pay their taxes

first

and

litigate afterward.

Summary

distraint to compel payment

is proper.

And

injunctions

against

collection

can

be forbidden.1

8

But

these

decisions

all

proceeded

on

the

express assumption

that

the taxpayer

had other remedies.

Correspondingly,

a

remedy

after

payment may

be denied if

the

taxpayer

had a

remedy

before,

as

Cary v Curtis

shows. Or

the

remedy

may

be

conditioned upon following exactly

a

prescribed

procedure.

29

Q

The

taxpayer

has

to

watch

out,

then,

or he ll lose his rights.

A He certainly

does. As

Justice

Holmes

said in

the Rock

Island

case,

Men

must turn

square

corners

when

they

deal

with

the

government.

3 0

That s true

of

constitutional

rights generally.

Witness Yakus

again,

and

the

cases on

proper presentation

of

federal questions

in

state courts.

3

There

isn t

often

a

constitu-

tional

right

to

a

second bite at

the

apple.

Q Why do

you think there

is a right even

to

one bite

in

tax

cases?

To

avoid misconstruction

upon

so

grave a

subject,

we think

it

proper to state

that

we

do

not

consider

Congress

can

either

withdraw

from judicial

cognizance

any

matter which,

from its

nature,

is the

subject

of

a suit

at

the common

law,

or in

equity, or

admiralty; nor,

on

the other hand,

can it

bring under

the

judicial power

a

matter which,

from

its nature,

is

not a subject for

judicial determination.

At

the same

time there

are

matters, involving public

rights,

which

may

be

presented in

such

form that

the

judicial power is

capable of acting

on them, and which

are

susceptible

of judicial

determination, but

which Congress

may or

may

not

bring

within the cognizance

of the

courts of the

United States, as it

may

deem

proper

27 Springer

v.

United

States,

102

U.S.

586

i88o);

Phillips

v.

Commissioner,

283 U.S.

89

(1931).

2'

Snyder

v. Marks, iog U.S. 189

(1883).

2

Rock

Island,

Ark.

La.

Ry.

v.

United

States,

254

U.S.

141

1920 .

3o

Id t 43

3 E.g., Mellon v. O Neil,

275

U.S.

212 1927); Hemdon

v. Georgia, 295

U.S.

441

1939); Memphis

Natural Gas Co. v.

Beeler, 315

U.S.

649

1942).

See

STEzRN

An GEssm

AN

Su.PPaEu

CoURT PRACTICE

75-87

(195).

95 ]

1369


9/41

HARVARD LAW REVIEW

A

For reasons of principle,

which I ll develop

later.

And on

the basis of

some

authority

which you ll find

in

a

footnote.

3 2

Q I can find that

unconvincing without even looking

at your

footnote.

Granting the right, you

still have

to reckon

separately

with the

power

of Congress to

prevent its

vindication

by

con-

trolling

jurisdiction.

May I remind you of

SheldonandMcCardle?

A There you go oversimplifying again.

III.

THE BEARING OF

SOVEREIGN

IMMUNITY

Q

Well, if it s too simple

for

you,

let

me

complicate it

a little

bit. Justice

Daniel

mentioned

sovereign immunity in Cary v

Curtis

That

gives a double

reason, doesn t it,

why

Congress has

an absolute

power over legal relations between the

Government

and private

persons?

If it doesn t want to

defeat

private rights

by regulating

the jurisdiction

of

the federal

courts,

it

can

do

it

by

withholding

the

Government s

consent

to

suit.

A I

can t deny

that that

does complicate

things.

But

the

power of

withholding

consent isn t

as nearly

absolute

as it

seems.

Q

What

mitigates

it?

A You have to

remember, in the first

place, that

the

immunity

is

only

to

suits against the

Government.

This

isn t

the

place

to

go into

the question of wh- o

t

s

such a My point now

is

that

the possibility remains, as

Cary v Curtis

indicates,

of a

personal

action

against

an

official who commits a wrong in

the

name of

the

Government.

Wherever

the applicable substantive

law

allows such a

remedy,

the Government

may

be

forced to

pro-

tect its officers

by providing a

remedy against itself.

The

validity

of

any

protection

it

tries to

give

may

depend on its providing

such

a

remedy and,

indeed,

the validity

of

other

parts

of

its pro-

gram.

Consider,

for

example, the possibility that summary

col-

lection

of taxes

might

be

invalid if

the

Government

did

not waive

its

immunity to

a

suit

for

refund.

3

Among federal

tax decisions the authority

consists of several cases

which

could readily have

been

disposed of on the ground that the taxpayer

had no right

to a

judicial hearing

if the Court had been

of that

opinion,

but in

which

the Court

was

at pains to show that a right

satisfying the requirements of

due

process had

been

accorded. See, in

particular, Graham

Foster

v. Goodcell,

282 U.S. 409

(1931); Anniston Mfg.

Co.

v.

Davis,

301 U.S.

337

1937).

And the Court has several times held

that the Due Process Clause of the

Four-

teenth

Amendment

entitles the

taxpayer to an opportunity

to contest the legality

of state

taxes.

E.g., Central of

Georgia

Ry. v. Wright, 2 7 U.S. 127 1907);

Brinkerhoff-Faris Trust

Savings

Co. v. Hill,

281 U.S.

673 1930).

[Vol.

66

370


10/41

CONTROL

OF

FEDER L JURIS I TION

Too the Government may

be

under other kinds

of

practical

pressure

not

to insist on its immunity. Take Government

con-

tracts, for

example.

The law

gives no immunity

against being

branded

as

a

defaulter. The

business

of

the

Government

requires

that

people

be

willing

to

contract

with

it.

3

Finally, no democratic

government can be immune

to

the

claims

of

justice

and legal

right. The force of those

claims of

course

varies in different situations.

If

private property is taken,

for

example,

the claim for

just compensation has the

moral

sanc-

tion of

an

express

constitutional guarantee; and

it is not surpris-

ing

that

there is

a

standing

consent to

that

kind of

suitY

4

And

where constitutional

rights are

at

stake the courts are properly

astute,

in

construing

statutes,

to

avoid

the

conclusion

that

Con-

gress

intended

to use the privilege

of

immunity or

of withdrawing

jurisdiction,

in

order

to

defeat

them.

5

IV.

LIMITATIONS ON

THE JURISDICTION

OF ENFORCEMENT

COURTS AND COURTS IN THE

POSITION

OF ENFORCEMENT

COURTS:

THE

POSSIBILITY OF JUDICIAL CONTROL

Q

Let's

stop

beating around

the

bush

and get

to

the

central

question.

The

bald

truth is

this,

isn't it, that the power to regulate

jurisdiction

is actually

a

power

to regulate

rights rights

to judi-

cial

process, whatever

those are, and substantive rights

generally?

Why, that

must be so. What can a

court do

if Congress

says it

has

no

jurisdiction, or

only

a

restricted

jurisdiction?

It's helpless

helpless even

to consider

the validity

of

the limitation,

let alone

to

do anything

about

it if

it's invalid.

A

Why,

what monstrous

illogic

To build

up

a

mere power

to

regulate

jurisdiction

into

a

power

to

affect

rights

having

nothing

to

do with jurisdiction

And

into a

power

to

do

it in

contradiction

to

all

the

other terms

of

the very document

which

confers the

power to regulate jurisdiction

S3

This

pressure made itself

felt even

before

the

Civil

War

and resulted in a

blanket consent

to suit in the Court of Claims. See

generally

RI.CHARDSON HISTORY,

JURISDICTION

AND PRACTIcE OF

THE

COURT OF CLAIMS 2d

ed.

i885 .

34

28

U.S.C.

1346

(a)

(2),

1491

(Supp.

1952).

E.g.,

Lynch

v.

United States, 292 U.S. 57I (1934); De

La

Rama S.S.

Co. v.

United

States,

344 U.S. 386

(1953);

cf

Bruner

v.

United

States,

343

U.S.

112

1952) (withdrawal

of jurisdiction affecting

only the number of tribunals author-

ized

to hear a claim).

For

an instance of construction of the scope of consent in light of

constitutional

considerations, see

Clark

v. Uebersee

Finanz-Korporation, 332 U.S.

480, 487-88

(1947).

i9 ]

1371


11/41

H RV RD

L W

REVIEW

Q

Will

you

please

explain what's wrong

with

the

logic?

A

What's wrong

for one thing, is that

it violates a necessary

postulate of constitutional government that

a

court must al-

ways be available to

pass

on

claims of constitutional

right

to judi-

cial process

and to provide

such process

if the

claim is

sustained.

Q

Whose

Constitution are you talking about Utopia's

or

ours?

A

Ours. It's a

perfectly

good

Constitution

if we know how

to interpret

it.

Q. Have you got the patience

to spell

out just what my fal-

lacies

are?

A

There

are so many of them

it will take a

little time.

Let's

start

with

the most

obvious one.

Your

point,

at

best,

can

apply only to

plaintiffs.

Perhaps

a plaintiff does

have to

take

what

Congress gives him or doesn't give him although I have my

doubts about it.

But

surely not a defendant.

It's

only a

limitation

on what

a

court can do once it has

jurisdiction,

not a denial

of

jurisdiction,

that can hurt

a

defendant. And if

the

court thinks

the limitation

invalid it's always in a position to

say

so and either

to

ignore it or let the defendant go free.

Crowell

v Benson

6

and

th akus 7

case

make

that

clear

don't

they?

Q You're saying then, that the power to regulate jurisdiction

is subject

in

part to the other provisions of the Constitution?

A No. It's subject in

whole not

in part. My

point

is simply

that the difficulty involved

in

asserting

any

judicial control in

the face of

a total

denial

of

jurisdiction

doesn't exist if Congress

gives jurisdiction

but

puts

strings on it.

I'm

also pointing

out

more

than

that. When the way of exercis-

ing

jurisdiction

is in question rather

than

its denial the constitu-

tional

tests

are

different.

It's hard,

for

me

at

least, to

read into

Article III any guarantee

to

a civil litigant

of a

hearing in

a federal

constitutional

court

36

85

U.S.

22

1932). In

accordance

with

the statutory procedure

Benson

brought

suit

to enjoin enforcement

of a

compensation

award

under the Federal

Longshoremen's

and Harbor

Workers' Compensation Act

on

the

ground that the

injured

worker

was not in his employ and

the

claim therefore, was not within the

jurisdiction of

the

commissioner making the award. After

hearing evidence

de novo

on

the

issue

the district court restrained

enforcement.

The

Supreme

Court

affirmed

the judgment

construing the statute as requiring

trial

de

novo

on jurisdictional

and constitutional

facts.

The Court took the

view that Congress

could

not

make

an

agency's determination of such facts binding

upon

the courts and that such a

limitation,

therefore, was

not

to

be

implied.

3 7

Yakus

v.

United

States,

321

U.S.

4 4

1944).

See note

20 sWpa

[VoL 66

372


12/41

CONTROL

OF FEDERAL JURISDICTION

(outside the original

jurisdiction

of the Supreme Court) if

Con-

gress chooses to providesome

alternative procedure.

The alterna-

tive

procedure

may

be unconstitutional.

But,

if

so, it seems

to

me

it

must

be

because of

some

other constitutional

provision,

such

as

the Due Process

Clause.

On the other

hand,

if Congress

directs an

Article III

court to

decide

a

case,

I can easily

read into

Article

III

a

limitation on

the

power

of

Congress to

tell the court

how

to

decide

it.

Rutledge

makes

that

point

clearly

in the Yakus

case,

38

as

the

Court

itself

made

it

clear long

ago

in United

States

v

Klein That s

the

reason,

isn t it,

why Hughes

invokes

Article

III

as well

as

the

Fifth

Amendment

in

Crowell v

Benson?

As

he

says,

the

case

was

one where

the question

concerns

the proper

exercise

of the judi-

cial power in

enforcing

constitutional

limitations.

Q

But

Crowell

v

Benson

wasn t

an enforcement

case. It was

a suit

by an employer

to set

aside an

award

in

favor of an

em -

ployee.

A

Under

the Act the

award

was enforceable

only by

judicial

process.

Congress

chose to give

the employer a

chance to

chal-

lenge

an award

in advance

of enforcement

proceedings.

The

Court

was

certainly

entitled to

assume

in those circumstances,

wasn t it,

that whatever would

invalidate

an award

in

enforcement

proceedings

would

invalidate it

also in

an

advance challenge?

Q

I guess

so.

But that

brings

a lot

of cases

involving plain-

tiff's

rights within

the sweep

of your principle,

doesn t it?

A

Yes,

when the

plaintiffs

are prospective

defendants.

What

you

have to keep your

eye on,

when

a plaintiff

is attacking

govern-

mental .action,

is whether

the

action plays a

part in

establishing

a duty

which

later

may

be judicially

enforced

against

him.

If

so,

8 Id at

463-68.

39 3

Wail.

28

U.S.

z872).

Klein

recovered

judgment

in

the

Court

of

Claims

under the Civil

War

enemy

property

acts

which provided

for

the

recovery

of

captured

property

or its

value

by

the

former owners if they

had

not been

disloyal

or had

received a pardon.

While

the case was

pending on

appeal to

the Supreme

Court, Congress

enacted

a

statute

providing

that in any

case in which

it appeared

that the claimant

had

received

a pardon

containing

a recital of

previous disloyalty,

the

recital

should be conclusive

evidence

of disloyalty,

and

the Court

of Claims

or

the Supreme Court should

lose

jurisdiction

and should

dismiss

the daim

forthwith.

The

Supreme

Court

held the act

unconstitutional and

declined

to

apply

it

in

Klein's

case.

The

Court recognized

the power

of Congress

to regulate

both its own

jurisdiction and

that of

the

Court

of Claims,

but held

the statute

an

attempt

to

prescribe a rule

of decision

retroactively,

and hence

an invasion

of the

judicial

function.

40 285 U.S.

at 58.

95

1373


13/41

the

court

has to decide as

a

matter of construction including

possible

problems

of separability

whether

an objection

to

a

limitation

on

jfirisdiction

can

be raised

only

in enforcement pro-

ceedings

or

can

be

asserted

in

advance.

Because of

the

wide power

of

Congress

in

the

selection of reme-

dies, which

I spoke of

before, the

question usually is

one

of con-

struction.

But

the

inference

ordinarily

should be

in

favor of

mak-

ing

the

statute

workable

and

constitutional

as a

whole. Once

that

inference

is drawn the

court in

the

advance

proceeding is sub-

stantially

in

the position

of an enforcement

court.

Q

You

mean that in an

advance

challenge

the

court,

regard-

less of

any restriction

on its

jurisdiction,

should

consider

and de-

cide

any

question

which

it

thinks the

plaintiff

would

have a

right

to have

it

decide

if

he were

a

defendant?

A

I

think you re hitting

it.

If

the

court

disposes of the case

on the

advance

challenge,

the decision

will be

res judicata.

And

so,

if

the court

thinks the

restriction invalid,

it

has

only the

tw o

choices of

disregarding

it or refusing

to

proceed to a

decision

and

thus forcing

the government

to

bring

an enforcement

proceeding.

Since

the

purpose

of

the

advance challenge is

to make an

enforce-

ment

proceeding unnecessary

the

court ought ordinarily,

as

a

matter of statutory

construction

to make

the first choice

and

treat

the plaintiff

now

as if

he

were

a

defendant.

Q

Well,

I ll admit

that all

this

makes Sheldon and

McCardle

a

little

less frightening.

But only

a

little less

so. I m

wondering

what

there

is to

prevent

Congress from by-passing

the courts

altogether.

If a

court

has

no jurisdiction

at

all, it obviously

can t

seize on

the

excuse of

merely

invalidating

a limitation

on

its

juris-

diction.

But

before

I ask

you about

that,

let s

see

what

Congress

would

have

to gain by it

or

the defendants

to lose.

When you

come

right

down

to

it, what are the

rights

of

a

defendant

in

an

enforce-

ment

proceeding?

V. LimiT TioNs

ON THE

JU RsDIcTIoN

oF

ENFORCEMENT

COURTS

THEIR VALmITY

A The

Yakus

case

and

Crowell

v Benson

give you

a good

starting-point.

Most people

reading

Yakus concentrate

on what

the Court

said Congress could

do, and

reading

Crowell

concen-

H RV RD L W REVIEW

[Vol

1374


14/41

CONTROL OF FEDERAL

JURISDICTION

trate

on

what it said Congress could

not

do. I hope

you

won't

make

those simple

mistakes.

Q You ll

have to

spell that

out

for

me.

Take

Crowell

first.

A. Civil Defendants

A.

Well,

the solid

or apparently

solid

thing about

Crowell

is

the

holding

that administrative

findings

of non-constitutional

and

non-jurisdictional

facts may

be made conclusive

upon

the

courts,

if not infected

with

any error

of

law,

as a basis

for

judicial en-

forcement

of a money

liability

of

one private

person

to another.

Q What s

so surprising

about

that?

A. It s

worth

thinking

about even

as

a

matter

of

due process

and Article

III

judicial

power. But

stop

and

think

particularly

about

the Seventh

Amendment.

Q

No right

of

jury trial

in admiralty.

A. Good. But

the

Seventh

Amendment

hasn t

been treated

as

standing in

the

way

of the

Crowell

result even when

the admiralty

answer

wasn t

available.

Administrative

proceedings

haven t

been

regarded

as

suits

at

common

law.

41

Q

My,

the Seventh

Amendment

might

have been a

major

safe-

guard against bureaucracy

with

a little

different

interpretation,

mightn t

it?

A. Don t

build

it

up

too

much.

How

many

administrative ar-

rangements

can

you think

of

that involve

establishment

of a

money

liability?

Q

I m still

interested in

what

Crowell said Congress

could

not

do.

Isn t that solid?

A.

Not very. So far

as

the

case insists on trial

de novo

it

seems

clear

it

has

no

germinal

significance.

42

Do you

think

it

should

have?

Q But

Crowell also spoke

of

the right to

have

the

independent

judgment of

a

court on

constitutional

and jurisdictional

facts.

That s important,

isn t

it,

even

if the

court is confined

to the ad-

ministrative

record?

'

See, e.g.

Wickwire v.

Reinecke, 275 U.S.

1o,

io5-o6

1927);

NLRB

v.

Jones &

Laughlin Steel

Corp.,

3o

U.S. 1 48-49

(1937).

The few cases

are

collected

in DAVIs,

ADiM NISTRAT

E

LAW

3o5-06

(igs9).

42

See, e.g.

South Chicago

Coal &

Dock

Co. v.

Bassett,

309

U.S.

251, 57 58

(i94o);

Davis v.

Department

of Labor,

317

U.S. 249, 256-57

1942);

Cardillo

v.

Liberty

Mutual

Ins. Co., 330

U.S.

469

(i947);

Alabama

Public

Service

Comm'n

v. Southern

Ry., 341

U.S. 341

i951). And

see

Schwartz,

Does

the Ghost

of

Crowell v.

Benson Still

Walk? 98

U.

oF PA.

L.

Rzv.

x63

1949).

19531

1375


15/41

HARVARD

LAW

REVIEW

A It s a right with very different implications.

That

was the

right insisted

on in the

Ben

Avon case

4

on

review

of a state

court

decision,

where of course

it had to

be

rested

solely

on due process.

The

Ben

Avon

part

of

the Crowell

holding

was

reaffirmed in

1936,

although

in somewhat less

rigorous form,

in St. Joseph

Stock

Yards Co v United

States.

That

was a case

coming

from a

three-judge

district court

involving a

rate

order

of

the

Secretary

of Agriculture

under

the

Packers

and

Stockyards

Act. The

judg-

ment sustaining

the order was affirmed.

But Chief Justice

Hughes,

prompted by

the

lower

court s expression

of doubts,

went out

of

his way to

emphasize that

an

independent

judicial judgment on

the

facts (which

actually

had

been exercised)

was constitution-

ally necessary. He

added, however,

that such

a

judgment

does

not

require or justify

disregard

of

the

weight

which

may

properly

attach to indings

upon hearing

and

evidence.

Justice

Bran-

deis, concurring

in

result with

Justices

Stone

and Cardozo,

thought

that no

good reason

exists

for

making

special exception

of issues

of

fact

bearing

upon a

constitutional right.

'

He said:

The supremacy of

law demands

that there

shall be

an

opportunity

to

have

some

court

decide

whether

an

erroneous

rule of

law

was

applied;

and

whether the

proceeding in

which

facts were

adjudicated was

con-

ducted

regularly.

To

that

extent, the

person asserting a

right, whatever

its source,

should

be

entitled

to

the

independent

judgment of

a court

on

the

ultimate

question of

constitutionality. But

supremacy of

law

does

not

demand that the correctness

of

every

finding of

fact to which the

rule

of

law

is

to

be applied shall

be subject to

review by a court.

If

it

did,

the

power of

courts to set aside

findings

of

fact

by

an

administrative

tribunal

would

be broader than

their power

to s t aside a jury's

verdict.

The

Constitution

contains

no

such

command.

4

7

Q Where

does

the

Ben

Avon Crowell St. Joseph

rule stand

now?

'

Ohio Valley

Water Co. v. Ben

Avon Borough,

53 U.S. 87

1920).

The

Ohio

Supreme

Court

upheld

a

public

utility rate

established

by

the

state

utility

om

mission,

reversing the lower

court on the

ground that the

state statute did

not

permit the

court

to

make

findings of fact

on review and

that the commission's

valuation

of

the

utility's property

was not

unreasonable as a matter

of law. The

Supreme

Court reversed,

holding that where

confiscation of

property is claimed

due

process requires

an independent judicial

judgment

on

the

facts. (Brandeis,

Holmes, and

Clarke dissenting.)

44

98

U.S.

38

1936).

5

Id t 53.

4

6

Id

t

73.

7

Id

t

84.

1376

[Vol

66


16/41

CONTROL OF

FEDERAL

JURISDICTION

A Most commentators question its

present vitality,

at

least

in the

field

of

civil liability.

4

Certainly,

the recent decisions on

rate-making,

to which the commentators

point,

reflect such altered

views of

the

applicable

constitutional restraints

as

to leave

little

room

for the

Ben

Avon

question to arise within

its original field.

49

The

same

thing

is

true in other areas

of

administrative

action.

Putting aside

questions

of personal

liberty where

the

governing

criteria are likely to be

more

rigorous, constitutionality,

as dis-

tinguished from

statutory

authority,

will

rarely

turn

upon the con-

crete factual situation

sought to be

reviewed.

Q The

Crowell case

also

has

a

dictum that questions

of

law,

including the question

of

the existence

of

evidence to support

the

administrative

decision, must be open to

judicial

consideration.

5

And you quoted Brandeis

as

saying

that was necessary to

the

supremacy

of law.

Have those statements stood up?

A If

I can

speak broadly

and loosely, I'll

say

yes they

have

stood up.

Shutting off

the courts from

questions of law

determinative

of

enforceable duties

was

one

of

the

things

Yakus

assumed

that

Con-

gress could not

do.

To be

sure, that was a criminal case; but

there's

no

reason to suppose

the Court

would have made

a

differ-

ent assumption

if

the

sanction

had

been civil.

Q How do you

explain

cases

like

Gray

v Powell,

and

NLRB

v Hearst Publications,Inc.? 5 Or,

for

that

matter,

O Leary

v

Brown-Pacific-Maxon,

Inc.?

Is Didn't these cases allow the

agen-

cies to make final determinations

of questions of law?

48

See, e.g. DAVIS

ADMISTRATIVE

LAW

918-22 I95I); Benjamin, Judicial

Review

of

Administrative

Adjudication:

Some Recent

Decisions of the New

York

Court of Appeals, 48

COL.

L. REv

I, 27-32

(1948).

See

FPC

v.

Natural Gas

Pipeline Co., 315

U.S. 575,

6oo (1942);

FPC

v. Hope

Natural

Gas Co., 320 U.S.

591

1944); New York

v. United

States,

331 U.S.

284

(1947).

However, the New

York Court

of Appeals has

held

itself bound

by the

Ben

Avon

principle until

it is

in terms

repudiated

by the

Supreme Court. Staten

Island

Edison Corp.

v.

Maltbie, 296 N.Y. 374,

7

N.E.2d

705 947). And Massachusetts

recently defined

in

Ben

Avon terms

the scope of review required by its own

con-

stitution. Lowell Gas

Co.

v. Department of Public

Utilities,

324

Mass. 8o 84

N.E.2d 811

(1949).

5

285

U.S.

at

46,

49-50.

51

314

U.S.

402

I942)

upheld

administrative determination

of

the

meaning

of producer in the Bituminous Coal

Act).

52 322 U.S.

II (1944) (upheld administrative determination of the meaning

of

employees

in

the

Wagner

Act).

53

340

U.S.

504

(i951) (upheld

administrative determination

of

the

meaning of

arising out of

and

in

the course of employment in the

Longshoremen's Act).

95 ]

1377


17/41

H RV RD L W REVIEW

A.

That depends

on how

you

define law.

I

think Professor

Davis is

right

in

saying

that

the term

law

in the first

sentence

I

quoted

from Justice Brandeis

has

to be read as

excluding the

body of rules and

principles

that grow out of the

exercise

of ad-

ministrative

discretion

at least

while

the

rules

are in

process

of crystallizing.

5

In

recent years

we've

recognized increasingly

a

permissible

range

of administrative

discretion

in the shaping

of judicially

en-

forceable

duties. How

wide that discretion should

be, and

what

are

the appropriate

ways to

control

it,

are

crucial questions

in

administrative

law.

55

But so

long as the courts

sit

to answer the

questions, the spirit

of

Brandeis'

statement

is maintained.

And,

since

discretion

by

hypothesis

is

not

law,

the letter

of

it

is

not

in

question.

Q.

But it's notorious

that

there

are

all

kinds

of administrative

decisions

that are not

reviewable at

all. Professor

Davis

devotes

a whole

fat chapter

to Nonreviewable

Action of administrative

agencies.

56

A Administrative

law

is

a

relatively

new

subject

Naturally

there have

been

a number of ill-considered

decisions.

But if you

look closely

at

Professor Davis'

cases

you'll

find

that

almost

all

of them are

distinguishable.

Many

of

them

don't

involve judi-

cially

enforceable duties of the

complaining

party at

all. Others

involve

political

questions,

or administrative

questions

in the

old-

fashioned

sense.

57

Still others

turn on

this point of

administrative

discretion we

were

just talking

about.

The

remainder

were

not

themselves enforcement

cases, and

the opinions

simply

didn't

face

up

to the

question

whether

the validity

of the restriction

on juris-

diction should,

be judged

as it

would

be

in an

enforcement pro-

ceeding.

Name

me a

single Supreme Court

case that

has squarely

held

See DAvis,

AnMnISTATxma LAW

33-34 1951).

Note that io

of the

Ad-

ministrative

Procedure

Act

does

not

provide for judicial review

when

agency

action is by

law

committed

to

agency

discretion.

However,

io e) provides for

the setting aside of agency

action

which

constitutes

an

abuse

of

discretion.

6o

STAT.

243,

5

U.S.C. ioog(e) (1946).,

Similar yet distinct

questions are

involved

in the problem of the

appropriate

scope

of administrative discretion

in

devising

remedies. See,

e.g.

Jacob

Siegel

Co.

v.

FTC,

327 U.S. 608, 61i

(1946); FTC

v.

Ruberoid

Co.,

343

U.S.

470

(1952).

56

DAVIs,

A

mImsTRATIvE LAw 812-67

1951).

'

See,

e.g.

Federal Radio

Comm'n v.

General

Electric Co.,

281 U.S. 464 1930);

Federal

Radio

Comm'n v. Nelson

Bros. Co.,

289

U.S.

266

(1933);

FPC

v.

Idaho

Power

Co.,

344

U.S.

17

(1952).

1378

[Vol.

66


18/41

CONTROL OF FEDERAL JURISDICTION

that, in a civil enforcement proceeding,

questions of

law

can

be

validly

withdrawn

from the

consideration of the

enforcement

court where

no

adequate opportunity

to

have

them determined

by

a

court

has

been

previously

accorded.

58

When

you

do,

I m

go-

ing

back

to

re-think

Marbury

v Madison.

Q You put

a

lot

of weight

on the

point

of

whether

an

enforce-

able

legal

duty is

involved,

don t

you?

A Yes.

60

B.

Criminal

Defendants

Q You

haven t

mentioned

criminal defendants

so

far. I

sup-

pose

that

all

you ve

said, and

more, applies to

them.

They have

a right to trial by

jury that isn t limited to

offenses

that

were

crimes at common

law

and

a

lot

of

other

specific guarantees,

too.

A Well, the same

basic point

certainly

ought to apply. I

don t

believe that

courts

can be given criminal jurisdiction, and

at the

same time be told to exercise it

in violation of

the

Constitution.

Yakus at least, went

on that basis. It dealt directly

with

the

scope

of

constitutional

rights,

with

no

nonsense

about any

ques-

tion being

foreclosed

by the

power

to

regulate jurisdiction.

5

If

a

prior opportunity for

review

by a

legislative court,

such

as

the

Tax

Court, be regarded as

adequate,

the

procedure

for renegotiation

of

war

contracts

involves

no

such

problem.

Otherwise,

it may.

The renegotiation

provisions often operate

in invitum without notice when

the

contract was made.

In

Lichter

v.

United States,

334

U.S.

742 (1948), the Court

held

that a

federal

district court

could not

redetermine

excessive profits in an

enforcement

proceeding

brought by

the United

States,

since

the

exclusive remedy

was

a petition

for

redetermination in the Tax Court.

This left

open

the

question

whether the Tax Court s

decision

is

reviewable either

in

a

court of appeals

or

in

an

enforcement proceeding

in

the

district

court

after

the

contractor

has

exhausted

his prior remedies.

Some

of the

issues

in

such

cases,

it should

be

noted,

turn upon

the exercise of

discretion;

but

others involve clear

questions of law.

One court of appeals has read

the

statutes

as foreclosing the usual

review

of

Tax

Court

decisions.

French

v. War

Contracts Price Adjustment

Board,

182 F.2d

56o

(gth Cir.

i95o). Another

has

found power to

review

a narrow group

of con-

stitutional and

jurisdictional questions.

See,

e.g., Maguire

Industries, Inc. v.

Sec-

retary

of

War, i85

F.2d 434

(D.C. Cir. ig5o).

The

enforcement

question

seems not

to have

been

presented.

See

generally

Braucher,

The

Renegotiation Act of

9 z

66 HARv.L.

REv.

270, 305-12

1952).

i

Cranch

x37

U.S.

i8o3

60 Cf.

io Administrative

Procedure Act, 6o

STAT.

243, 5 U.S.C.

IOO

(1946):

Except so far

as

i)

statutes

preclude judicial review

or

(2)

agency action

is

by

law committed to

agency

discretion

b) Agency action shall

be subject to judicial

review

in

civil or criminal

proceedings

for judicial enforcement

except

to the extent that prior, adequate,

and

exclusive opportunity for such review is

provided by law.

95 ]

1379


19/41

HARVARD

LAW

REVIEW

Whether

the

courts define

the

rights

too

narrowly

or

too

broadly,

they

are there to

declare them

and whenever appropriate

to

overrtile and re-declare.

There

is significance,

moreover, in

the

conformities to

the

tra-

ditional pattern of a

criminal

trial

which

Yakus assumed

to be

necessary

as well

as

in the departures

which

it

sanctioned. The

departures

were the withdrawal from

the court or

jury

of

certain

questions of legislative

fact

and

from

the court

of

certain ques-

tions of law. But

these

departures were sanctioned

only because

an alternative

procedure had been

provided which,

in the exigen-

cies of

the national situation,

the Court found to be

adequate. The

alternative procedure for

the decision

of

the

questions

of law was

in a

court;

and everybody assumed

it had

to be.

Q Does

Yakus

mark

the

maximum

inroad

on

the rights

of

a

criminal

defendant to judicial process?

A. No, unfortunately

it

doesn t. We

have

to take

account

of

two

World

War II

selective

service cases, Falbo v.

United States,

and

Estep v.

UnitedStates. By

the

terms of"

the selective

serv-

ice

legislation,

as

Justice Douglas

put

it in

Estep, "Congress

enlisted

the aid

of

the federal

courts only for

enforcement pur-

poses."

6

And

so

the

question

was

sharply presented

on

what

terms that

could be done.

The Court

held in Falbo, with only

Justice Murphy

dissenting,

that a registrant who was

being

prosecuted for failure

to report

for induction or for

work of national importance)

could not de-

fend on the ground

that he had been wrongly classified

and was

entitled

to

a statutory

exemption.

Q

Doesn t

that pretty well

destroy your

notion that there has

to

be.

some

kind

of

reasonable means

for getting a judicial deter-

mination

of questions

of

law

affecting

liability

for criminal punish-

ment? All Congress

has to

do

is to

authorize an administrative

agency

to

issue

an individualized

order, make the v iolation of

the

order

a

crime in itself,

and at

the

same time

immunize

the

order

from

judicial review.

On

the question

of

the violation of

the order,

all the defendant s

rights are preserved in

the criminal trial, ex-

cept that they

don t mean anything.

A. Whoa Falbodoesn t

go that far. In

Estep,after the fight-

ing was over,

the

case was explained

and

perhaps

it had ac-

tually

been

decided- on

the

basis

that

the

petitioner

in failing

6

32

U.S.

549 (1944).

62 327 U.S. 114 119 (1946).

1380

[Vol.


20/41

CONTROL

OF

FEDERAL

JURISDICTION

to report

for induction had

failed to exhaust

his

administrative

remedies.

Considering

the emergency,

the

requirement

that claims

be first presented

at the

induction

center

was

pretty clearly

a

reasonable procedure.

Q How

about

Estep?

A The

petitioner

there went to

the end of the

administrative

road,

and

was indicted for refusing

to submit to induction.

The

Court

held

that he was entitled to

make the defense that

the

local

board

had

acted

beyond its jurisdiction. Justice

Douglas,

speaking

for himself and Justices

Reed and Black, said:

The provision making

the

decisions

of the

local

boards

final

means

to

us

that

Congress chose

not

to

give

administrative

action

under this

Act the

customary scope

of

judicial review

which obtains under

other

statutes.

It means that

the

courts

are

not

to weigh the

evidence to de-

termine whether

the classification

made

by the

local

boards was

justified.

The decisions of the

local boards made

in

conformity with the

regula-

tions are

final even

though

they may be erroneous.

The question

of

jurisdiction

of the local

board is

reached only

if

there is

no basis

in

fact

for the classification which

it gave the registrant.

63

Justices

Murphy and

Rutledge concurred

specially on

the

ground that

the Court's

construction was

required by the Consti-

tution.

Justice

Frankfurter thought

the construction wrong

but

1d

at 122-23. Justice Douglas had

a

footnote here

saying,

That

is

the

scope of judicial inquiry

in deportation cases where

Congress

has made

the orders

of deportation 'final.

Query.

See

Lloyd

Sabaudo Societa

v. Elting, 287 U.S.

329 335-36 (1932)

; Kessler v. Strecker,

307 U.S. 22, 34 1939);

Bridges v. Wixon,

326 U.S.

135 (1945).

But

cf

Heikkila v.

Barber,

345

U.S. 229 1953).

The narrow scope

of review which Justice Douglas

describes was all that

was

given in Cox

v.

United

States, 332

U.S.

442 (1947),

another

selective service case.

In

United

States

v.

Spector,

343

U.S.

169

(1952),

the Court

upheld

the

con-

viction of an

alien

for

wilfully failing to

make timely application for travel

docu-

ments

necessary

for

his departure

after a

deportation

order was issued.

Justice

Jackson

dissented on the

ground

that the statute was unconstitutional,

since it

made

the

validity

of

the

deportation order conclusive

on

the

enforcement court.

The

majority

refused to

consider this

objection on the ground

that it had not

been

argued.

In Heikkila v. Barber,

the Court

held

that an

alien who was at large

after an

order of deportation,

and hence could not bring

habeas

corpus,

was foreclosed

also

from getting

a

review

of the order

under

io

of the

Administrative Procedure

Act, 6o

STAT.

243, 5

U.S.C. 1009 (1946). Does

this indicate that such an alien who

failed to seek travel

papers would be automatically

a

felon, regardless of the

validity

of the order of

deportation? In such a case, at

least,

would

not the criminal court,

on proper objection, be

bound to examine the

order?

To

illustrate the importance

of

a prior

administrative

remedy, compare

United

States v. Ruzicka,

329 U.S. 287 (1946), witz

Stark

v. Wickard,

321

U.S.

288

(r944).

See

also Ewing

v. Mytinger & Casselberry, 339

U.S.

594

1950).

95 ]

1381


21/41

HARVARD

LAW

REVIEW

concurred

on

the

ground

that

there

were

other

errors in

the trial.

Justice Burton

and Chief

Justice

Stone

dissented.

Q

Well, the holding

in the

end wasn t such

a departure

after

all,

was

it?

A

Stop

and

think before

you say that.

Except

for two

Justices

who

are now

dead,

the whole

Court

dealt with the

question as

if it

were merely one

of

statutory

con-

struction. Three

Justices

of

the

Supreme

Court

of

the

United

States

were

willing to

assume that Congress

has power

under

Article I

of

the Constitution

to

direct courts created under

Article

III to

employ

the judicial

power conferred

by Article

III

to con-

vict a

man

of

a

crime

and

send

him

to

jail without

his

ever

having

had a

chance

to make his

defenses.

4

No

decision

in 164 years

of

con

the power of congress to limit the jurisdiction of federal courts: an exercise in dialectic

Documents