The one exception was the case you cited. Mr. COMSTOCK. That is the "sick chicken case." Senator DODD. That is the only one. Have you researched this from a legal standpoint? Mr. COMSTOCK. No, sir, as most of us are familiar with that decision. I did not research it as thoroughly as I might have. Senator DODD. I think it is significant that you testify here about the only case, the "sick chicken case," and there have been a long line of cases and they have all been otherwise gone the other way. I suggest that you read it. I will make it available to you and I will put it in the record, together with the memorandum from the Library of Congress at this point. (The memorandum from the Library of Congress and the decision referred to were marked "Exhibit No. 104," and are as follows:) EXHIBIT No. 104 THE LIBRARY OF CONGRESS, LEGISLATIVE REFERENCE SERVICE, Washington, D.C., June 7, 1965. To: Senate Subcommittee on Juvenile Delinquency, attention: Mr. Mooney. From: American Law Division. Subject: Scope of congressional practice of delegating discretion to executive officers to issue regulations implementing enforcement of statutes. Almost from the very inception of the National Government established pursuant to the Constitution, the Congress found it necessary to delegate to the President or to subordinate executive officers discretionary power to issue regulations found necessary to carry into effect congressional policy expressed in statutes. As long as the Congress embodies in such statutes an intelligible statement of policy, the Supreme Court, with one exception, has been disposed to uphold such discretion conveyed thereunder to executive officers. The one exception occurred during the depression of the 1930's when the Court voided the National Industrial Recovery Act and the Bituminous Coal Conservation Act of 1935 on the ground that these measures, insofar as they delegated to private industrial groups the power to issue binding rules pertaining to methods of competion or wages and hours of labor, entailed a virtual abdication of the legislative fuction by Congress (Schechter Corp. v. United States, 295 U.S. 495, 537 (1935); Carter v. Carter Coal Co., 298 U.S. 238, 311 (1936)). NORMAN J. SMALL AMERICAN LAW DIVISION, July 6, 1954. Subject: Digest of decisions and list of recent references pertaining to the separation of powers principle as applied to the National Government. 1. List of recent references: Daniel S. Cheever and D. Field Haviland. American foreign policy and the separation of powers (1952), chs. 1-3, 14. The Constitution of the United States of America: Analysis and Appraisal (1952), pp. 173-181, 380, 392, 442, 460-462, 465-469, 479-480, 489, 499–500, 521, 525-526, 546-551. Charles S. Hyneman. Bureaucracy is a democracy (1950), pts, 1, 2, pp. 3-206. Arthur T. Vanderbilt. The doctrine of the separation of powers and its present-day significance. 1953. Arthur W. MacMahon. Congressional oversight of administration; the power of the purse (1943), 58 Pol. Sci. Quar. 380-414. Delegation of legislative power (1945), 20 N.Y.U.L.Q.R. 347-354. Oliver P. Field. Separation and delegation of powers (1947), 41 Amer. Pol. Sci. Rev. 1161–1170. 2. L. L. Jaffe. Delegation of legislative power: an essay (1947), 47 Col. L.R. 359-376. J. Rowe, Jr. Cooperation or conflict? The President's relationship with F. L. Fox. Separation of powers (1948), 5 Wash. & Lee L.R. 185-203. H. Wolkinson. Demands of congressional committees for executive papers President and Congress-power of the President to refuse congressional demands for information (1949), 1 Stanford L.R. 252–262. P. R. Collins. Power of congressional committees of investigation to obtain information from the executive branch: the argument for the legislative branch (1951), 39 Geo. L.J. 563-598. R. W. Ginnane. Control of federal administration by congressional resolutions and committees (1953), 66 Harv. L.R. 569-611. F. A. Newman and H. J. Keaton. Congress and the faithful execution of the laws should legislators supervise administrators (1953-1954), 41 Cal. L.R. 565-595. Digest of certain Supreme Court decisions pertaining to the separation of powers. I. LEGISLATIVE BRANCH A. Delegation by Congress of legislative power to executive and judicial branches The Brig Aurora ((1813) 7 Cr. 382): Congress may legislate contingently, leaving to the President the task of ascertaining the existence of facts which will bring into operation the statute containing expression of its declared policy. Thus, Congress, by an act of May 1, 1810, could make the revival of the Nonintercourse Act of 1809 contingent upon the (1) issuance by the President of a proclamation confirming the fact that a certain foreign nation, France or Britain, had repealed its edicts violative of our neutral commerce, and (2) upon the elapse of 3 months following such proclamation without the second nation having effected a similar revocation. A ship captured under the act of 1809 thus revived was held to have been lawfully seized. Wayman v. Southward ((1825) 10 Wheat. 1): Although Congress cannot "delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative, Congress certainly may delegate to others, powers which the legislature rightfully may exercise itself ***. The line has not been exactly drawn which separates those important subjects which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made, and power given to those who are to act under such general provisions, to fill up the details. "It is, undoubtedly, proper for the legislature to prescribe the manner in which *** ministerial offices shall be performed, and this duty will never be devolved on any other department, without urgent reasons. But in the mode of obeying the mandate issuing from a court, so much of that which may be done by the judiciary, under the authority of the legislature, seems to be blended with that for which the legislature must expressly and directly provide, that there is some difficulty in discerning the exact limits within which the legislature may may avail itself of the agency of its courts." Accordingly, it is constitutionally permissible for Congress to delegate to the Federal courts the rulemaking power in regard to judicial procedure, and to accomplish that result through enactment of the Process Act. By the terms of the latter, State laws regulating the modes of procedure in suits at common law were adopted for use in Federal courts, subject to such "alterations and additions as the said courts, respectively, shall, in their discretion, deem expedient or to such regulations as the Supreme Court *** shall think proper, from time to time, to prescribe to any circuit or district court concerning the same." Field v. Clark ((1892) 143 U.S. 649): “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution** "The true distinction, [however], is between the delegation of power to make law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made ***. The legislature, although it cannot delegate its power to make a law, can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend** *. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and, must there fore, be a subject of inquiry and determination outside the halls of legislation." On the basis of such principles, the Tariff Act of 1890 was not illegal because it authorized the President to suspend the free importation of enumerated commodities for such time as he may deem just whenever he found that other countries imposed on agricultural or other products of the United States duties or exactions which he may deem to be reciprocally unequal or unjust. Such a statute did not invest the President with the power of legislation, for Congress itself prescribed the duties to be collected while the Presidential suspension lasted and left nothing involving the expediency or just operation of such law to the determination of the President. The President "had no discretion except as to the duration of the suspension which he ordered * * *. As the suspension was absolutely required when the President ascertained the existence of a particular fact, it cannot be said that in ascertaining that fact, and in issuing his proclamation, in obedience to legislative will, he exercised the function of making laws ***. What he was required to do was simply in execution of the act of Congress." U.S. v. Eaton ((1892) 144 U.S. 677) A section in a statute prescribing criminal penalties for any violation of said law will not support a criminal prosecution for willful disobedience of administrative regulations issued pursuant to express authorization contained in said statute. It is necessary for sufficent statutory authority to exist for declaring an act or omission a criminal offense. In the instant case, Congress, in section 18 of a law pertaining to the taxation of oleomargarine, imposed a penalty for neglecting to do any of the things required by said law. However, a wholesale dealer in oleomargine who neglected to keep books in conformity with a regulation issued by the Commissioner of Internal Revenue pursuant to section 20 of that law was held not subject to criminal prosecution for the reason that Congress had failed to provide expressly that violations subject to prosecution under section 18 shall embrace disobedience not only to provisions of that law but also regulations issued pusuant to section 20. In re Kollock ((1897) 165 U.S. 526): An act which requires manufacturers and retail dealers in oleomargine to pack oleo sold by them in suitable wooden or paper packages, which shall be marked, branded, and stamped as the Commissioner of Internal Revenue, with approval of the Secretary of the Treasury. shall prescribe, which provides that all sales shall be in original stamped packages, and which imposes a fine and imprisonment on those who trade in oleo not so packed or branded or stamped does not unconstitutionally delegate the power to define what shall be a criminal offense or to determine what acts shall be criminal. The criminal offense is fully defined in the law, and the designation by the Commissioner of the marks and brands to be affixed was a regulation specifically authorized in effectuation of the legislation which created the offense. The vesting of such discretion in the Commissioner also entailed no invalid delegation of legislative power. Buttfield v. Stranahan ((1904) 192 U.S. 470): When a statute acts on a subject as far as practicable and only leaves to executive officials the duty of bringing about the result pointed out, and provided for, it is not unconstitutional as vesting executive officers with legislative powers. Hence the act of 1897 is not invalid because it authorized the Secretary of the Treasury, on recommendation of a designated administrative board, to fix and establish uniform standards of purity, quality, and fitness for consumption of all kinds of teas imported into the United States and prevented importation of tea described as inferior to such standards. The statute evinced a purpose of Congress to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality. This, in effect, was fixing the primary standard, and devolved on the Secretary of the Treasury the mere executive duty to effectuate the legislative policy declared in the statute. In any real sense, therefore, no power of legislation was vested in administrative officials. Union Bridge Co. v. U.S. ((1907) 204 U.S. 364): The Rivers and Harbors Act of 1899 effected no unconstitutional delegation of legislative or judicial power to the head of an executive department when it authorized the Secretary of War whenever he shall have good reason to believe that any bridge over navigable waters is or would be an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width, or span, or otherwise, or that there is difficulty in passing the draw of such bridge by watercraft, to give the parties reasonable opportunity to be heard, and then to give notice to the owners of the bridge to alter same as to render navigation through or under it free and unobstructed. In giving such notice the President was directed to specify the changes or alterations recommended by the Chief of Engineers as requisite, and to prescribe a reasonable time in which to make them. Congress, in the execution of a policy, merely committed to the Secretary of War the duty of ascertaining all the facts essential in any inquiry whether particular bridges were unreasonable obstructions to navigation. Congress itself could have made this determination as to any bridge, but investigations by Congress as to each particular bridge alleged to constitute an obstruction would be impracticable in view of the varied interests which require national legislation. Congress, however, stopped with the declaration of a rule and imposed upon the Secretary the duty of ascertaining what particular cases came within that rule, as well as the duty of enforcing the rule in such cases. In performing that duty the Secretary only executed the will of Congress. "It is not too much to say that a denial to Congress of the right to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends would be to stop the wheels of government and bring about confusion, if not paralysis, in the conduct of public business." U.S. v. Gremaud ((1911) 220 U.S. 506): Congress cannot leave to the Executive the determination, in his discretion, of a reasonable penalty for the violation of statutes or administrative regulations, but it can itself make the violation of administrative regulations issued under its authority a crime. When the penalty for violation of regulations to be made by an executive officer is prescribed by statute, the violation is not made a crime by such officer but by Congress, and Congress and not such officer fixes the penalty. Nor is the offense against such officer but against the United States. Consequently, criminal prosecution validly may be instituted for violation of grazing regulations issued by the Secretary of Agriculture pursuant to a statute authorizing him to make regulations governing the use and occupancy of public forest preserves for the purpose of protecting the latter against destruction by fire, and further providing that violation of his regulations shall be a penal offense. Interstate Commerce Comm. v. Goodrich Transit Co. ((1912) 224 U.S. 214): The provisions of an act of 1906, authorizing the Interstate Commerce Commission to require accounts to be kept in a specified manner by interstate carriers, are not an unconstitutional delegation of legislative power. Mahler v. Eby ((1924) 264 U.S. 32): Inasmuch as the discretion delegated is sufficiently defined by the policy of Congress, as expressed therein, and the common understanding as to what "undesirable residents" are, no invalid delegation of legislative power was effected by enactment of the Alien Act of 1912 which established classes of persons who, in the judgment of Congress, are eligible for deportation and directed the Secretary of Labor to deport members of these classes whom he finds to be undesirable residents. Congress cannot designate all the persons to be excluded. It must accomplish its purpose by classification and by conferring power of selection within classes upon an executive agency. Avent v. U.S. ((1924) 266 U.S. 127): No unconstitutional delegation of legislative power resulted from adoption of the Transportation Act of 1920 whereunder the Interstate Commerce Commission was authorized, whenever it is of the opinion that shortage of equipment, congestion of traffic, or other emergency requiring immediate action exists in any part of the country, to suspend its rules as to car service and make reasonable rules such as will best promote service in the interest of the public and to give directions for preference or priority in transportation or movement of traffic. U.S. v. Chemical Foundation ((1926) 272 U.S. 1): It was constitutionally permissible for Congress to provide, as it did in the Trading with the Enemy Act, that the Alien Propery Custodian shall be vested with the powers of a common law trustee all alien property taken over by the Government and to empower him, under the President, unconditionally to make disposition of it by sale or otherwise and to exercise any appurtenant rights and powers in the same maner as if he were the absolute owner. It was not necessary for Congress to ascertain the facts or to deal with each case. The determination by the President as Commander in Chief of the terms of the sales in the light of 49-588-65--32 facts and conditions arising out of the war was not the making of law, but rather, the application of the general rule laid down in the act. Hampton Jr. & Co. v. U.S. ((1928) 276 U.S. 394): It was not unconstitutional for Congress to empower the President, by the terms of title 3 of the Tarif Act of 1922, to increase or decrease duties imposed by that act so as to equalize the differences which, upon investigation, he finds between the cost of produc ing at home and in competing foreign countries the kinds of articles to which such duties apply. The Tariff Act laid down certain criteria to be considered in ascertaining the differences, fixed certain limits of change, and made an investigation by the Tariff Commission a necessary preliminary to any Presidential proclamation changing the duties. N.Y. Central Securities Co. v. U.S. ((1932) 287 U.S. 12): An authorization to the Interstate Commerce Commission contained in the Transportation Act is not invalid for want of an intelligible standard or specific expression therein of legislative policy by reason of the fact that the Commission is empowered. after notice and hearing and findings of fact and law based on the record made at said hearing, to sanction the acquisition by one carrier of control of another whenever, in its opinion, such acquisition will be in the "public interest." The latter, as a criterion of the Commission's authority, is not the public welfare in general, but the public interest in the adequate transportation sought to be secured by the act. As thus used it is not a concept without ascertainable criteria but has direct relation to such transportation, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation of facilities. U.S. v. Shreveport Grain & El. Co. ((1932) 287 U.S. 77): No unconstitutional delegation of legislative power resulted from the direction to enforcement officers contained in the Food and Drugs Act to the effect that reasonable variations shall be permitted from the requirement that the quantity of food in packages shall be marked outside the package in terms of weight, measure, or count. and that tolerances and also exemptions as to small packages shall be established by administrative regulations. Federal Radio Comm'n v. Nelson Bros. Co. ((1933) 289 U.S. 266): A provision in the Radio Act of 1927 requiring the Federal Radio Commission to act "as public convenience, interest, or necessity requires" is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power. The requirement is to be interpreted by its context and subject matter, and, where an equitable adjustment in the grant of broadcast licenses between States is in view, by the relative advantages in service which will be enjoyed by the publi through the distribution of facilities. Valid for the same reason is the provision contained in the Communications Act of 1934 under which the Federal Communications Commission was to t guided by considerations of "public convenience, and necessity" in issuing or withholding permits and licenses. Federal Com'n v. Broadcasting Co. (1940) 309 U.S. 134, 138; Nat. Broadcasting Co. v. U.S. (1943) 319 U.S. 190, 225–226. Panama Refining Co. v. Ryan ((1935) 293 U.S. 388): Section 9(c) of the National Industrial Recovery Act, authorized the President to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn by any State law or valid regulation prescribed thereunder, and fixed a criminal penalty for violation of any Presidential order issued under this subsection. Section 9(c) was held to transcend the constitutional limits to the delegation of the lawmaking function by Congress for the reasons that Congress had not declared therein any policy, or established any standard, or laid down any rule There was contained in that subsection no definition of the circumstances ar1 conditions in which the transportation of petroleum products was to be allowed or prohibited by the President, nor any requirement of findings by the President as a condition of his action. In short, Congress attempted in § 9 (c) to confer on the President an unlimited authority to determine policy and to lay down a prohibition, or not, as he saw fit. Moreover, the other provisions of §9 were found to be unrelated to § 9 (c) and therefore could not be relied upon to furnish the declaration of policy or standard of action not expressed in § 9(e) or te afford any ground for implying any limitation on the broad grant of authority in § 9(c). Nor could such circumstances be disregarded and the question whether such delegation of legislative power is constitutionally permitted be answered ty |