extend to all cases arising under the Constitution, laws, and treaties of the United States." 99 10 In Smith v. Adams," Mr. Justice Field stated that by the terms "cases" and "controversies" used in the judicial article of the Constitution defining the limits of the judicial power of the United States— 66* * * was meant the claims or contentions of litigants brought before the courts for adjudication by regular proceedings established for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim or contention of a party takes such form that the judicial power is capable of acting upon it, then it has become a case or controversy.12 This perhaps means that the Federal judicial power extends only to court cases and controversies as distinguished from administrative controversies which have not reached the courts This conclusion permits the view that Congress may authorize boards and commissions to decide with finality, and without providing for court review, matters which do not come within the category of cases arising within the field committed to the courts by section 2 of article III. But may Congress constitutionally deny the citizens a right to bring a case in the Federal court for the determination of the rights between him and another citizen if they arise under the Constitution, laws, and treaties of the United States, or if they are of admiralty cognizance, or concern ambassadors, ministers, and consuls, in view of the provision that the judicial power extends to all such cases? I will let you answer the question. I am only asking it. It perhaps is not appropriate that I should in this form undertake to̟ make answer, but I will say that it has been done so often, at least in part, noticeably in NLRB cases involving rights between employer and employee, that I would be bumptious indeed to stand here and assert that Congress cannot do that. I prefer to pass on to a discussion of the legal situation where Congress has provided for judicial review of a resort to the courts. "If, then, it is a duty of Congress to vest the judicial power of the United States, it is a duty to vest the whole judicial power. The language, if imperative as to one part, is imperative as to all." "It would seem, therefore, to follow, that Congress are bound to create some inferior, courts, in which to vest all that jurisdiction which, under the Constitution, is exclusively vested in the United States, and of which the Supreme Court cannot take original cognizance. They might establish one or more inferior courts; they might parcel out the jurisdiction among such courts, from time to time, at their pleasure. But the whole judicial power of the United States I should be at all times vested either in an original or appellate form, in some courts created under its authority." Justice Brewer, in Kansas v. Colorado, said: 15 "Speaking generally, it may be observed that the judicial power of a nation extends to all controversies justiciable in their nature, the parties to which or the property involved in which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme and other courts all the judicial power which the Nation was capable of exercising was vested in those tribunals, and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the Nation, no matter who may be the parties thereto." But Congress has not always observed this principle. There are some half hundred boards and commissions of the Government authorized to make findings of fact which are binding upon the courts in reviewing such action if there is any evidence to support the findings of such board or commission. The findings of these boards and commissions are by statute generally made final and they cannot be set aside upon review by courts if such findings "are supported by evidence"-not if supported by the weight of the evidence. And in the matter of drawing inferences it has been held that the findings of the board must be sustained if the inferences drawn by the board or commission are reason able. Even though the court might be thoroughly convinced that the factual findings of the board are the result of bias, prejudice, or even stultification, it cannot set the findings aside, except for errors of law, if there is any substantial evidence in the record to support the findings. The concept that any part of the judicial power of the United States could be constitutionally vested in a tribunal that is within itself accuser, witness, judge, and jury, is rather disturbing; and the manner in which some of them have performed must shock some of those individuals who have plugged so consistently in support of the thesis of bureaucratic infallibility. The Emergency Court of Appeals, operating in connection with price control, presents an interesting and ingenious set-up. I know of no other Federal statute that contains such a provision as the following: 16 "Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision." Provision is made, however, whereby a defendant may file a complaint in the Emergency Court of Appeals against the Administrator, and that court has jurisdiction to enjoin or set aside, in whole or in part, any provision of the regulation. The right of review of the decisions of the Emergency Court of Appeals is accorded the Supreme Court. One is obliged to wonder whether this Emergency Court of Appeals should be characterized as fish or fowl. I have mentioned the theory heretofore that a tribunal is not a court possessing Federal judicial power unless it is presided over by a judge appointed under the provisions of section 1 of article III of the Constitution. I have adverted to the theory, also, that the judicial power vested in these Federal courts must be called into play on cases and controversies. It would seem that complaint filed against the Administrator in the Emergency Court of Appeals is a case or a controversy, and that only judges appointed during good behavior and whose salaries could not be reduced could be judges of a court having jurisdiction of such matters. The OPA statute confirms these concepts, for it makes duly appointed regular Federal judges the judges of that court, thereby carefully adhering to the provisions of section 1 of article III. The Emergency Court of Appeals is an inferior court, ordained and established by Congress, which tries cases and controversies, and is presided over by judges appointed during good behavior, whose compensation cannot be diminished; but what about the Court of Customs Appeals or the Tax Court, or any other so-called court, wherein the judges are not appointed in accordance with section 1 of article III? Are they courts that have the right to exercise judicial power? The name of the Board of Tax Appeals was recently changed to the Tax Court, but that is a misnomer, although it is a tribunal for which I have an exceedingly high regard. The Tax Court statute provides for review of that court's decisions by the Circuit Courts of Appeals and 17 "Upon such review, such court shall have the power to affirm, or, if the decision of the Board is not in accordance with law, to modify or to reverse the decision of the Board, with or without remanding the case for rehearing, as justice may require." (Italics added.) I am thankful that Congress still expects the circuit courts of appeals to act according to the principles of justice even in tax matters to which some say justice is a total stranger. It will be noted that there is nothing in the act creating the Board of Tax Appeals, or Tax Court, providing that the findings of fact of such board shall be conclusive if there is any evidence to sustain them. The Circuit Court of Appeals, instead, is required to affirm, or modify, or reverse, if the decision is not in accordance with law, all as justice may require. But it has long been held by the Supreme Court that findings of fact by the Board are conclusive on review, if supported by any evidence, and recently, in Dobson v. Commissioner,18 it was held that where there are no constitutional questions involved a determination of the Tax Court on mixed questions of law and fact is not reviewable unless the court can separate the elements of decision so as to identify a clear-cut mistake of the law. 16 38 Stat. 639, 50 U. S. C. A. App. § 924 (d) (1944). The court said that the judicial function "is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." 19 The opinion pays high compliment to the experts on this Board and is a strong presentation in support of the theory of bureaucratic infallibility. The members of this Board are entitled to commendation. They do not deem themselves to be crusading enforcers of an act. The strongest boost, however, that has been made for administrative absolutism is a concurring opinion in the recent case of Bingham v. Commissioner,20 decided June 4, 1945, in which it is said that in a review of a decision by the Tax Court the sole question before a circuit court of appeals is whether the decision by the Tax Court presents "a clear-cut mistake of law. There should be an end of the matter once it is admitted that the application made by the Tax Court was an allowable one." 21 A mere mistake of law is insufficient. It must be "clear-cut." This opinion further states that the intention of the Dobson case was to 66* * * centralize responsibility in the Tax Court, to minimize isolated intrusions by the circuit courts of appeals into the technical complexities of tax determination except when the Tax Court has clearly transcended its specialized competence.” Here seems to be a very frank confession that the Court in the Dobson case was intending to centralize responsibility in the Tax Court-a province which I always thought belonged to Congress, and which undiluted attribute Congress did not mention, but Congress said, in effect, to the Circuit Courts of Appeals: "You reverse this thing if justice and law require it." What is meant in the statute providing for review by the circuit courts of appeals in the use of the term "in accordance with law" and the term "as justice may require"? If I am correct in the assumption stated earlier in this discussion that judicial power means the power to administer justice to the people according to the prescribed forms of law, then the obligation to do justice called for by the Tax Court statute brings the judicial power of the circuit courts of appeals into full function. I submit that any court which cannot review either the law or the facts upon which a decision of the Tax Court is based is in a poor fix trying to do justice. Give me the right to fix the facts and you may have the right to declare the law. If ascertaining the truth is not the first step in the administration of justice, then I confess that I have no conception of the process. The right to know the truth is an integral and essential attribute that belongs to a court of justice. If ascertainment of the truth is not an inegral and necessary part of the exercise of judicial power, then why find the facts? Why not let the judge issue an ex parte fiat? If finding the facts is a part of the judicial power, and if the judicial power is vested in the courts in cases and controversies mentioned in section 2 of article III, or if the judicial power is the power to administer justice, and if in the administration of justice it is necessary first to know the truth, how can Congress or the Supreme Court withhold from the courts on review the right to be satisfied as to facts? For to withhold from them the right to know the truth is to withhold from them an essential and integral part of the judicial power, without which the demands of justice cannot be known, and the law cannot be properly applied. In conclusion I wish to submit for your consideration this concept: That Congress may vest in nonjudicial boards and tribunals finality of decisions in all matters which do not come within the traditional concept of cases and controversies unless the decision of such boards and tribunals denies a citizen a right under the Constitution and laws of the United States. But in any instance in which Congress provides for a review in the courts of cases and controversies arising out of the subject-matter mentioned in section 2 of article III, thereby calling into operation the judicial power-the power and the duty to do justice-it cannot take away from the courts any part of the judicial power to do justice. The power, the right, the duty, to do justice are constitutional attributes of the Federal courts that cannot be whittled away in cases before them by denying to such courts the power to find the truth. The taking away from the courts 19 320 U. S. at 501. 20 89 L. ed. 1191. 21 Id., at 1200. 22 Id., at 1201. the power to find the truth and to declare it though the heavens fall, is one way in which Congress has ordained and established that its courts shall be inferior courts, but it is not the way the makers of the Constitution intended that it should be done. THE FEDERAL TRADE COMMISSION'S INTRUSION UPON THE TRIPARTITE SEPARATION OF POWERS In his foreword to the George Washington Law Review's symposium on the Federal Trade Commission (1940, p. 250), S. Chesterfield Oppenheim spoke of the Commission as "another intruder upon the traditional tripartite separation of powers to which the American system was said to be consecrated." In that symposium, writing on highlights in the evolution of the Federal Trade Commission, Huston Thompson, a former Chairman of the Commission, said (p. 261): "To serve on a commission is to learn the danger of relying on a rather cherished epigram to the effect that ours is a Government of laws and not of men, for, after all, at least 50 percent of it is Government by men, and it is personalities who play the great part in evolving the policies under which a commission shall proceed." And again (p. 264): "The assertion that any governmental department is a government by persons as much, if not more, than by laws, is illustrated in the changing of the membership of the Federal Trade Commission." Excerpt from an address by Gilbert H. Montague, of the New York bar before forum o fadministrative law of the Essex County Bar Association, Newark, N. J., entitled "Getting Along With the Government Agencies," April 9, 1945, printed in the Congressional Record of May 14, 1945: "LITIGATING WITH THE GOVERNMENT "Litigation of any kind is a nuisance to a businessman, but litigating with the Government is most wasteful of all in lawyers' fees and executives' time. "As a litigant, the Government has advantages of unique prestige, unrivaled powers of publicity, specially trained legal talent, and inexhaustible resources. "Such Government agencies as the Federal Trade Commission and the National Labor Relations Board have also the advantage that in all their prosecutions they are both prosecutor and judge, and are empowered by statute to make decisions in their own favor, even though such decisions be contrary to the weight of evidence." Excerpts from final report of Attorney General's Committee on Administrative Procedure, 1941, additional views and recommendations of Messrs. McFarland, Stason, and Vanderbilt. (p. 203) "THE SEPARATION OF FUNCTIONS "History and tradition have given English-speaking peoples a governmental pattern which they regard as the essence of fair adjudication. They regard the legislature as the first forum in matters between the Government and the citizens; in the legislature, made up of representatives of all the people, their needs are presented and general solutions devised. The investigator or prosecutor follows; it is his duty to enforce the law by discovering wrongdoing and bringing wrongdoers to justice. But the prosecutor is not allowed to judge as well as to prosecute. Instead, he must prepare his case, summon witnesses, and present reliable evidence at a hearing before a court which is independent of the prosecutor. Even a judge in a court of law is not the sole judge. A jury of citizens must first say whether they approve the imposition of criminal penalties or money damages. The judge may then say whether, notwithstanding the permission given by the jury, the imposition of penalties or damages is 'lawful.' Not even then is the process finished, for the right of appeal to a higher tribunal has come to be regarded almost as essential as the right to a trial. "In the administrative process, however, these stages of making and applying law have been telescoped into a single agency. In this concentration customary and separate procedures have disappeared. The legislature no longer prescribes the rules but in large part leaves this function to the administrative agency. And administrative rules are usually incomplete, since it is easier for an admin istrative agency to judge each case as it arises than to formulate rules. The agency which prescribes rules is also the investigator, the prosecutor, the judge, and to a large extent the appellate tribunal. It is given a staggering load of work and must necessarily delegate many of these functions to subordinates. One employee acts as prosecutor, another as presiding judge, and another as appellate judge. There is no jury. The litigant often feels that, in this combination of functions within a single tribunal or agency, he has lost all opportunity to argue his case to an unbiased official and that he has been deprived of safeguards he has been taught to revere." (P. 206) On January 12, 1937, President Roosevelt transmitted to Congress the report of his Committee on Administrative Management, together with a special message, in which (Report With Special Studies, 1937, pp. iii-v) he said: * * * "I have examined this report carefully and thoughtfully, and am convinced that it is a great document of permanent importance. The practice of creating independent regulatory commission, who perform administrative work in addition to judicial work, threatens to develop a 'fourth branch' of the Government for which there is no sanction in the Constitution." In Palmer v. Ultimo (C. C. A. 7th) 69 F. (2d) 1, 2), the court said: "In respect to the other contention that the inspector was investigator, prosecutor, and fact finder, it must be said that such a practice is unfortunate and subject to criticism, yet it does not establish such unfairness as to vitiate the findings of such official. This hearing was by an administrative department where the procedure is quite different from that which prevails in courts." In Federal Trade Commission v. Klesner (280 U. S. 19, 27) the Supreme Court said: "While the Federal Trade Commission exercises under section 5 the functions of both prosecutor and judge, the scope of its authority is strictly limited." This, however, was in 1929 before the Commission's authority was clearly extended. John Bene & Sons v. Federal Trade Commission ((C. C. A. 2, 1924) 299 Fed. 468, 471): "The Trade Commission, like many other modern administrative legal experiments, is called upon simultaneously to enact the roles of complainant, jury. judge, and counsel. This multiple impersonation is difficult, and the mainte nance of fairness perhaps not easy; but we regard the methods pursued [by the Federal Trade Commission] in showing Proper's diminution in sales as lacking in every evidential or testimonial element of value, and opposed to that sense of fairness which is almost instinctive." [Italics added.] Excerpt from a statement made by James M. Landis, dean of the Harvard Law School, formerly a member of the Federal Trade Commission in a SYMPOSIUM ON ADMINISTRATIVE LAW (9 American Law School Review, 139) (P. 183) "When I went to the Federal Trade Commission, I found that the findings of that Commission were, as a matter of practice, drafted by the Commission's attorney in the case, the prosecuting attorney. It seemed to me absolutely wrong that that should be so. True, the Commission exercised an independent judgment before it said, 'Issue an order, or do not issue an order,' but the findings supporting that order were drafted by the Commission's own attorney who had presented the case. Naturally, he tied up the respondent, so the respondent couldn't move, with the findings he drafted." Excerpt from a speech, Administrative Agencies and the Law, by Roscoe Pound, dean emeritus of Harvard Law School-printed in Women Lawyers Journal, spring edition, 1945. (P. 6) "One of the most serious features of administrative adjudication is that administrative agencies act as judges in cases in which they are also prosecutors and so in effect act as judges in their own cases. Many of these agencies entertain complaints, institute investigations upon them, begin what are in effect prosecutions before themselves, allow their own subordinates to act as advocates for the prosecution, and often make the adjudications in conference with those same subordinates." |