Opinion of the Court. 330 U.S. tory authority, Oklahoma was entitled to a judicial determination as to whether the order of the Civil Service Commission was "in accordance with law." Was the order within the competency of the Commission? That question of competency included the issue of the constitutionality of the basis for the order, § 12 (a).13 Only if the statutory basis for an order is within constitutional limits can it be said that the resulting order is legal. To determine that question, the statutory review must include the power to determine the constitutionality of § 12 (a). The cases cited by the Government as pointing toward lack of power to adjudicate the constitutionality of § 12 13 Cf. Labor Board v. Jones & Laughlin, 301 U. S. 1, 25, 43, 49; Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, 321-24; United States v. Ruzicka, 329 U. S. 287, 294. Judicial review normally includes issues of the constitutionality of enactments and action thereunder. 60 Stat. 237, 243, § 10 (e): "Scope of Review. So far as necessary to decision and where presented the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of any agency action. It shall (A) compel agency action unlawfully withheld or unreasonably delayed; and (B) hold unlawful and set aside agency action, findings, and conclusions found to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; (5) unsupported by substantial evidence in any case subject to the requirements of sections 7 and 8 or otherwise reviewed on the record of an agency hearing provided by statute; or (6) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court. In making the foregoing determinations the court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error." See the full discussion of the "Scope of Review," Legislative History, Administrative Procedure Act, S. Doc. No. 248, 79th Cong., 2d Sess., p. 213, (e), and p. 278, § 10 (e). are inapposite. None deny to a court with jurisdiction by statute to review the legality of administrative orders the. power to examine the constitutionality of the statute by virtue of which the order was entered. The authorities in note 2 above, relied upon by the Government, do not hold or imply a position contrary to our conclusion. In Massachusetts v. Mellon, 262 U. S. 447, the Commonwealth and others sought decrees to enjoin the enforcement of the Federal Maternity Act. This Court denied federal jurisdiction, p. 480, because no burden was placed upon a state and no right infringed, p. 482. Perkins v. Lukens Steel Co., 310 U.S. 113, denied a manufacturer who desired to sell to the Government the right to question a government official's definition of "locality," which the official was required by statute to make to determine the minimum wages of the "locality" under the Public Contracts Act. The denial of federal jurisdiction to decide the question was because no "litigable rights" to deal with the United States had been bestowed by the statute on the would-be seller, pp. 125 and 127. The prospective seller by statute or otherwise had nothing to do with the conditions of purchase fixed by the United States. Alabama Power Co. v. Ickes, 302 U. S. 464, denied that the power company had any enforceable legal right to be free of competition, financed by illegal loans, p. 479. This present Oklahoma case is differentiated from each of the foregoing by the authority for statutory review and by the existence of the legally enforceable right to receive allocated grants without unlawful deductions. We do not think the rule that one may not in the same proceeding both rely upon and assail a statute" is applicable to the present situation. In the cases the Govern 14 See Hurley v. Commission of Fisheries, 257 U. S. 223; United Fuel Gas Co. v. Railroad Commission of Kentucky, 278 U. S. 300; Great Falls Mfg. Co. v. Attorney General, 124 U. S. 581. Opinion of the Court. 330 U.S. ment cites, the litigants had received or sought advantages from the statute that they wished to attack, advantages other than the mere right to sue. What we are concerned with in this case is not an estoppel to sue but the allowable scope of the statutory jurisdiction. From this point of view, the respondent urges that the Congress did not intend to create a justiciable right broad enough to include an attack upon the constitutionality of § 12 (a). We think the final sentence of § 12 (c), note 1 supra, comes near to demonstrating the unsoundness of such a contention. It reads: "If any provision of this subsection is held to be invalid as applied to any party with respect to any determination or order of the Commission, such determination or order shall thereupon become final and effective as to such party in the same manner as if such provision had not been enacted." We do not see that this sentence can mean anything other than that the invalidity (unconstitutionality) of any provision of subsection 12 (b) should not affect the determination of the Civil Service Commission. In view of our conclusion hereinafter expressed that § 12 (a) is constitutional, whether the Commission's determination would be enforceable without a particular statutory provision is not involved in this case. The Government urges that the absence of legislative consideration of attacks on the constitutionality of § 12 through the provision for judicial review negatives "the conclusion that Congress intended Section 12 (c) as an avenue of attack on Section 12 (a)." 15 But we do not agree that this lack of extended discussion of the scope of the judicial review by implication denies to a litigant the right to attack constitutionality. The final form of 15 It cites 86 Cong. Rec. 2354, 2429, 2440, 2468-2474, 9448, 9452; H. Rep. 2376, 76th Cong., 3d Sess., p. 9. judicial review is different from that first proposed. 86 Cong. Rec. 2468. No change of purpose, however, appears. The proposer of judicial review feared arbitrary action. Id., 2469. Others a violation of political liberty. It was thought the latter objection might be reached without right of judicial review. No one intimated constitutionality could not be reached with judicial review.16 16 86 Cong. Rec. 2470: "Mr. LUCAS. I have great respect for the opinions of the Senator from Nebraska. I rise to ask him a question: Does the Senator from Nebraska believe that the question of political liberty is involved in the pending legislation in any way? "Mr. NORRIS. I have not thought so. "Mr. Lucas. In other words, the Senator does not believe that the political rights of an individual who is charged with violation of the statute are being invaded? "Mr. NORRIS. Mr. President, I now understand the Senator's question. I do not believe so. Some honest men who are better lawyers than I am believe those rights are invaded. That question can easily be tested, however, without having the amendment adopted and passed upon. If the political rights of an individual were invaded, then the law would be unconstitutional, and one could get into court immediately by various kinds of applications. The question could be placed before a court and carried to the Supreme Court. and that Court could pass upon it. The adoption of the particular amendment in question would not assist in that respect. If the law is unconstitutional, it will be so found very soon, even without the adoption of this amendment, and the law will fall. "Mr. LUCAS. But if the Senator from Nebraska entertains the same view as that entertained by the Senator from Illinois with respect to the invasion of the political rights of an individual, then, I take it, the Senator from Nebraska will agree that in case an individual were charged with violation of the statute he should have his rights determined by the court of last resort? "Mr. NORRIS. I agree with the Senator. But we do not need this amendment in order to get a decision on the matter. That is my contention. We could not put anything into the law, however ingenious we might be, which would take away the constitutional rights of any citizen, and if such an attempt were made the citizen could go into court and have the question determined, even without the adoption of language such as contained in the pending amendment." Opinion of the Court. 330 U.S. None of the subsequent changes in the bill are effective to modify this construction of the scope of this judicial review.17 Second. Petitioner's chief reliance for its contention that § 12 (a) of the Hatch Act is unconstitutional as applied to Oklahoma in this proceeding is that the socalled penalty provisions invade the sovereignty of a state in such a way as to violate the Tenth Amendment 18 by providing for "possible forfeiture of state office or alternative penalties against the state." Oklahoma says § 12 (c) "provides that the commencement of an appeal from an order of the Commission: '. . . shall not operate as a stay of such determination or order unless (1) it is specifically so ordered by the court, and (2) such officer or employee is suspended from his office or employment during the pendency of such proceedings. . . . The coercive effect of the authorization to withhold sums allocated to a state is relied upon as an interference with the reserved powers of the state. In United Public Workers v. Mitchell, decided this day, ante, p. 75, we have considered the constitutionality of this provision from the viewpoint of interference with a federal employee's freedom of expression in political matters and as to whether acting as an official of a political party violates the provision in § 12 (a) against taking part in political management or in political campaigns. We do not think that the facts in this case require any further discussion of that angle. We think that acting as chairman of the Democratic State Central Committee and acting, ex officio, as a member of the "Victory Dinner" committee for the purpose of raising funds for the Democratic Party and for selling war bonds constitute taking an active 17 See 86 Cong. Rec. 9446, 9495. 18 "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." |