Obrázky stránek
PDF
ePub

review, the amount due the Government from a public official, and collect it by a distress warrant.

In Springer v. United States11 the power of the Government to collect a tax by a sale of land under a warrant issued by the collector was upheld. In Smelting Co. v. Kemp12 the administrative decision of the United States Land Office was held final as to the facts within its statutory jurisdiction.

" 13

The power of the Postmaster-General to exclude from the postal service the mail of concerns whose business he deems fraudulent has been sustained, though, by the statute conferring the power, no right of judicial review is given. The Supreme Court say: "If the ordinary daily transactions of the Departments which involve an interference with private rights were required to be submitted to the courts before action was finally taken, the result would entail practically a suspension of some of the most important functions of government.' In Bartlett v. Kane14 the court refused to examine the correctness of an appraisement by an administrative officer of property for taxation, saying: "The interposition of the courts in the appraisement of importations would involve the collection of the revenues in inextricable confusion and embarrassment." Finally, and most extreme of all, with regard to the exclusion of aliens, it has been held that an administrative officer may decide finally whether or not a person claiming to be a citizen of the United States is in fact such, and, therefore, entitled to enter this country.15 This decision Justice Brewer, in his dissenting opinion, characterized as "appalling;' but there is little chance that its doctrine will be disturbed in subsequent cases.

16

11 102 U. S. 586; 26 L. ed. 253.

12 104 U. S. 636; 26 L. ed. 875.

13 Public Clearing House v. Coyne (194 U. S. 497; 24 Sup. Ct. Rep. 789; 48 L. ed. 1092).

14 16 How. 263; 14 L. ed. 931.

15 United States v. Ju Toy (198 U. S. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 1040).

16 This subject of the conclusiveness of administrative determinations will receive more particular treatment in chapter LXIV.

In a manner similar to that in which the National Government has thus by Congress and the Supreme Court been equipped with the powers necessary for the efficient performance of the administrative duties which modern industrial and commercial conditions have thrown upon it, the Supreme Court has, upon simple ground of necessity, sanctioned the exercise by the Federal Government of powers requisite to meet the problems assumed by it in the imperialistic policy upon which it has entered since the Spanish war.

In De Lima v. Bidwell 17 the power of the United States over its dependencies was declared to arise, not out of the territorial clause, but from the necessities of the case and from the inability of the States to act on the subject. In Hawaii v. Mankichi1s upon similar grounds of expediency the right to jury trial was asserted not to have been extended to Hawaii, although by joint resolution Congress had declared that all local laws inconsistent with the Constitution of the United States should have no force. In Downes v. Bidwell the majority justices, Brown excepted, argue at length the practical necessity of conceding to the General Government the power of annexing foreign territory without incorporating it into the United States.

Upon the same grounds of expediency and practical necessity the Supreme Court, in United States v. Kagama,'sa has sustained the continued exclusive control of the Federal Government over the Indians, even though their tribal autonomy is no longer respected by Congress.

§ 36. International Sovereignty and Responsibility as a Source of Implied Powers.

Starting from the premise that in all that pertains to international relations the United States appears as a single sovereign nation, and that upon it rests the constitutional duty of meeting all international responsibilities, the Supreme Court has deduced

17 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.
18 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016.
180 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

corresponding federal powers. In Fong Yue Ting v. United States 10 that court say: "The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of international relations, and with all the powers of government necessary to maintain that control and to make it effective."

Thus, from this general source has been deduced the implied power of the United States to punish the counterfeiting in this country of the securities of foreign countries, the authority to annex by statute unoccupied territory, to establish in foreign countries judicial tribunals, to lease and administer foreign territory, to include or to expel from our shores undesirable aliens, and in general to exercise by treaty or statute all those powers properly to be embraced under the term "foreign relations" which other sovereign States possess. The extent of the authority of the United States under its treaty-making powers will receive special treatment in a later chapter. It is sufficient to point out in this place that decisions of the Supreme Court have established the doctrine that in the exercise of its treaty-making powers, and in fulfilling its international responsibilities, the United States may exercise regulative control over matters which are not within the legislative power of Congress and which are in general reserved to the States. In short, it may be stated as an established principle of our constitutional law that the supreme purpose of our Constitution is the establishment and maintenance of a State which shall be nationally and internationally a sovereign body, and, therefore, that all the limitations of the Constitution, express and implied, whether relating to the reserved rights of the States or to the liberties of the individual, are to be construed as subservient to this one great fact.

87. Resulting Powers.

The two preceding sections have shown that the doctrine of implied powers is sufficiently broad to justify the exercise by the Federal Government of powers not deduced from specific grants

19 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. '905.

of authority, but from the general fact that the United States is, with reference to its own citizens and its constituent Commonwealths, a fully sovereign national State, and, with reference to other States, a political power equipped with all the authority possessed by other independent States. Story in his Commentaries describes as "Resulting Powers" these federal powers which result from the aggregate authority of the General Government. That federal authority may be deduced from this general source and that it is not necessary for the Federal Government to trace back every one of its powers to some single grant of authority, was early stated by Marshall in Cohens v. Virginia.20 In that case he said: "It is to be observed that it is not indispensable to the existence of every power claimed for the Federal Government that it can be found specified in the words of the Constitution, or clearly and directly traceable to some one of the specified powers. Its existence may be deduced fairly from more than one of the substantive powers expressly defined, or from them all combined. It is allowable to group together any number of them and to infer from them all that the power claimed has been conferred." And later in the same opinion he says: "And it is of importance to observe that Congress has often exercised, without question, powers that are not expressly given nor ancillary to any single enumerated power."

§ 38. Inherent Sovereign Powers.

Sometimes confused with, but quite distinct from the doctrine which ascribes to the Federal Government plenary authority in matters international, and quite different also from the doctrine of resulting powers is that theory which argues the possession generally by the United States of "inherent" sovereign powers - that is, powers not regarded as implied in express grants of authority whether singly or collectively considered, but as flowing directly from the simple fact of national sovereignty. The two former doctrines are fairly deducible from the doctrine of implied powers. The latter doctrine, upon the contrary, would

20 6 Wh. 264; 5 L. ed. 257.

derive federal authority not from powers expressly granted, but from an abstraction, and would, at a stroke, equip the Federal Government with every power possessed by any other sovereign State.21

There can be no question as to the constitutional unsoundness, as well as of the revolutionary character, of the theory thus advanced. To accept it would be at once to overturn the long line of decisions that have held the United States Government to be one of limited, enumerated powers. Taney in denying the President the right to authorize a suspension of the writ of habeas corpus explicitly repudiated the doctrine. "Nor can any argument be drawn," he said, " from the nature of sovereignty, or the necessities of government for self-defense in times of tumult and

21 This theory has played a certain part in our constitutional history for many years, and was especially pressed during the period following the Spanish-American War and before the decision of the recent Insular Cases. Thus, Senator Platt of Connecticut declared in the Senate, December 19, 1898, that the United States "possesses every sovereign power not reserved in its Constitution to the States or to the people; that the right to acquire territory was not reserved, and is, therefore, an inherent sovereign right; that it is a right upon which there is no limitation and with regard to which there is no qualification, that in certain instances the right may be inferred from specific clauses in the Constitution but that it exists independent of the clauses; that in the right to acquire territory is found the right to govern it; that as the right to acquire is a sovereign and inherent right, the right to rule is a Sovereign right not limited in the Constitution." Congressional Record, XXXII, No. II, pp. 321–3.

So also, Senator Foraker of Ohio declared in the Senate, July 1, 1898, in response to a question as to the constitutional source whence he derived the power of the United States to annex foreign territory, that "the power was to be found inherent in our sovereignty — attached to it necessarily as a part of our sovereignty as a nation," and "was also to be found in the Constitution expressly conferred upon Congress by that provision of the Constitution which authorizes Congress to provide for the general welfare." When asked if he called this doctrine the "higher law," he replied: "The proposition is that it is inherent in sovereignty to do whatever sovereignty may see fit to do, and among other things to acquire territory."

Of substantially the same character are the arguments of Gardiner (Our Right to Acquire and Hold Foreign Territory, Putnams', 1899), and of Magoon, Law Officer, War Department (Report on the Legal Status of the Territory and Inhabitants of the Islands Acquired by the United States during the War with Spain. Doc. 234, 56th Cong., 1st Session).

« PředchozíPokračovat »