be committed to an administrative agency for final determination. Such a body cannot be invested with authority to compel obedience to its orders by fine or imprisonment. The proceeding before the courts authorized by such statutes is not ancillary or advisory. It is one for determining rights arising in a dispute and is one in which a conclusive judgment can be rendered. Muskrat v. U.S. ((1911) 219 U.S. 346): Neither the legislative nor the executive branch can assign to the judicial branch any duties other than those which are properly judicial. Hence it is unconstitutional for Congress to provide by law that certain Indians might bring suits against the United States in the Court of Claims, with right of appeal therefrom to the Supreme Court, to test the constitutionality of certain Indian allotment acts. Inasmuch as the United States in such litigation would have no interest adverse to the claimants, such a suit would not embrace a "case" or "controversy" to which the judicial power of the United States alone extends. The Supreme Court has no veto on legislation enacted by Congress; and its right to declare an act of Congress unconstitutional can be exercised only when a proper case between opposing parties is submitted. Crowell v. Benson ((1932) 252 U.S. 22): “Congress cannot substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency *** for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend." To do so "would be to sap the judicial power as it exists under the Constitution and to establish a government of a bureaucratic character alien to our system, wherever constitutional rights depend *** upon the facts, and finality as to facts becomes in effect finality in law." Thus, under the Longshoremen's and Harbor Workers' Compensation Act the U.S. Employees Compensation Commission could not be vested with power to decide with finality fundamental jurisdictional facts as to whether or not (a) the injury occurred on navigable waters of the United States and (b) whether or not there existed the relationship of master and servant. These questions were determinable de novo upon review by Federal courts. B. Relations of judicial branch to the executive and legislative branch: Political questions, advisory opinions Marbury v. Madison ((1803) 1 Cr. 137, 170): "The power of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion." Luther v. Borden ((1849) 7 How. 1): Such matters as the constitutional guaranty to a State of a republican form of government and of protection against domestic invasion or violence are political questions committed to Congress and the President whose decisions are binding on the courts. Mississippi v. Johnson ((1867) 4 Wall. 475): The President cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional. "The Congress is the legislative department; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance. If the injunction prayed for were allowed, and if the President refused obedience, it is needless to observe that this court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, *** [it is] clear that a collision may occur between the executive and legislative departments of the Government. May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President thus endangered by compliance with its mandate, and restrain by injunction the Senate *** from sitting as a court of impeachment? *** These questions answer themselves." C & S Air Lines v. Waterman Corp. ((1948) 333 U.S. 103): Orders of the Civil Aeronautics Board granting a certificate of necessity to engage in overseas or foreign air transportation are made conditional under the Civil Aeronautics Act until they receive approval by the President. After such an order rejecting a certificate for the Waterman Steamship Lines and granting one to a rival company had received Presidential approval, the former company unsuccessfully sought a judicial review thereof. The President did not disclose his reasons for his approval of the order and justified his silence by reference to "certain factors relating to broad national welfare and other matters for which the Chief Executive has special responsibility." The Court acknowledged that the President has available intelligence services which ought not to be published to the world, but affirmed that it "would be intolerable that courts should review and perhaps nullify actions of the Executive taken on information properly held secret." Courts moreover cannot "sit in camera in order to be taken into Executive confidences. But even if courts could require full disclosure, the very nature of Executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments." On the other hand, were the courts to consent to review the Board's order before it was submitted to the President for approval, they would have before them an administrative decision having the force of only a recommendation to the President. To render a decision at that point would be to render an advisory opinion, "advice that the President had not even asked, tendered at the demand of a private litigant on a subject concededly within the President's exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions, even when asked by the Chief Executive." (For additional examples of political questions, see Annotated Constitution (1952) pp. 547–549.) NORMAN J. SMALL. Mr. COMSTOCK. I am quite familiar with the provisions for appeal. Senator DODD. I am not talking about an appeal. Mr. COMSTOCK. An appeal I Senator DODD. I am talking about decisions on this matter. should think a witness who is testifying, a lawyer and expert would point out that there was only one case. If I appeared in your court and I did as you did here this morning and failed entirely to point out that all the other cases were to the contrary, I do not think you would think much of me as a lawyer. We will recess now until further notice. Mr. COMSTOCK. Is that the conclusion of my testimony, sir? Senator DODD. That is the conclusion of what I have to say to you. Mr. COMSTOCK. I am not required to come back? Senator DODD. No. We will stand in recess until further notice. (Whereupon, at 1:05 p.m., the subcommittee recessed, subject to the call of the Chair.) S. 1592 FEDERAL FIREARMS ACT THURSDAY, JUNE 24, 1965 U.S. SENATE, SUBCOMMITTEE ON JUVENILE DELINQUENCY Washington, D.C. The subcommittee (composed of Senators Dodd, Hart, Bayh, Burdick, Tydings, Hruska, Fong, and Javits) met, pursuant to recess, at 10:10 a.m., in room 318, Old Senate Office Building, Senator Thomas J. Dodd presiding. Present: Senators Dodd, Tydings, and Fong. Also present: Carl L. Perian, staff director, and William C. Mooney, chief investigator. Senator DODD. I call the hearing to order. We are glad to have here Mr. James V. Bennett, presently consultant to the Bureau of Prisons, and for many years Director of the Bureau of Prisons, as a matter of fact, Director from 1937 to August of 1964, an outstanding public official. I was privileged to know him for a great many years. I consider him one of the outstanding men I have had an opportunity to know in the Government, anywhere, any time. He knows what high respect I have for him and how much I value his views on this subject. I welcome him here. Senator TYDINGS. Mr. Chairman, since the distinguished witness is also a constituent of mine, as well as an old colleague-we were both in the Justice Department together-I would like to echo your sentiments and welcome him this morning. STATEMENT OF JAMES V. BENNETT, FORMER DIRECTOR, U.S. BUREAU OF PRISONS Mr. BENNETT. Thank you, Senator Dodd. Thank you, Senator Tydings. Gentlemen of the committee, Mr. Chairman, I am happy to appear again in connection with support of this bill. I have been here, as you know, on several previous occasions because I am convinced that this is a practical way of going about making some reduction in our high crime rates. I submitted to the committee on previous occasions detailed information concerning and supporting my views, and I doubt that it is useful to go over them in detail. Perhaps I can be of more use by commenting on some of the testimony that has been given to your committee. Senator DODD. Go right ahead. Mr. BENNETT. First of all, I want to express, Senator Dodd, and gentlemen of the committee, my admiration for your efforts and for the efforts of your able staff to inform the American people of the need for this bill, what it does and what it does not do. As I have listened here to the testimony, I marvel at your patience and long-suffering tolerance toward witnesses who have come before you in opposition of this bill. They give the same old timeworn and tired arguments that have been raised against bills of this type since the hearings Senator Copeland of New York held on the original Federal Firearms Act some 30 years ago. Senator, as the French proverb has it, the more things change the more they remain the same so far as the arguments of the NRA and the opponents of this bill go. They come here mouthing sweet nothings about how objective they are and how they want to prevent guns from getting into the wrong hands. They repeat twice-told tales about the causes of crime and how to prevent it by being tougher on persons convicted of crimes and by almost every other way than by making an honest, realistic beginning at stopping criminals, drug addicts, immature youngsters, and mentally disturbed persons from acquiring lethal weapons with no trouble. They really know little about how our increasing and growing problem of crime can be stopped or where to begin. They pay scant heed to the significant facts presented by our principal law enforcement officers concerning the crime problem and the relationship of the ease with which anyone can acquire a firearm to this problem. They probably never met a real, tough trigger man who is utterly without the slightest regard for the life of anyone who stands in his way. Well, I have, and so have you, Senator Dodd, and so has Senator Tydings. I know how a gun gives an otherwise cowardly crook or mental defective false courage. I know from being familiar with your splendid record, Senator Dodd, as U.S. attorney and as an assistant prosecutor at the Nuremberg Trials, and yours, Senator Tydings, that you do also. If time permits, Senator Dodd, I will illustrate these actual killers with actual cases, for the moment, I will take only one, one Albert Lee Nussbaum. He has always been fascinated by firearms. In 1952, when he was 18, he was arrested for stealing a gun, and in 1957 he was given a 5-year sentence for transporting an unregistered machinegun in interstate commerce. Thereafter it would be a violation of the Federal Firearms Act for a licensed dealer to sell him a firearm. Nussbaum was released from prison early in 1960. Between December 1960 and June 1962 he led the robbery of eight banks, obtaining a total of about $250,000. The robberies were highly organized, involving walkie-talkies and an array of weapons. Incidentally, Senator, I am not sure that that button you have out there was made by Nussbaum, but if it was not, he made others like it. He was an excellent mechanic and an excellent gunsmith. He used those guns ruthlessly. During one of these robberies a bank guard was shot to death and a policeman escaped death only when the bullet lodged in his metal shield. |