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The Trade Agreement Act in Court and in Congress
Published online by Cambridge University Press: 02 September 2013
Extract
“Practically every volume of the United States Statutes contains one or more acts or joint resolutions of Congress authorizing action by the President in respect of subjects affecting foreign relations, which either leave the exercise of the power to his unrestricted judgment, or provide a standard far more general than that which has always been considered requisite with regard to domestic affairs.” Thus did Mr. Justice Sutherland summarize the legal precedents for the President's actions in imposing an embargo on arms shipments to certain belligerent countries in South America, after Congress had delegated to him discretionary authority in such matters. This is more than a succinct historical summary. It is the first case in which the dicta of the Court has made clear that sharp line of distinction between the Chief Executive's discretionary powers in foreign affairs and those in internal matters.
- Type
- American Government and Politics
- Information
- Copyright
- Copyright © American Political Science Association 1937
References
1 United States v. Curtiss-Wright Export Corporation, decided December 21, 1936, advance reports, p. 11.
2 295 U. S. 79. L. Ed. 888; 55 Supreme Court 837 (1935). The so-called hot oil case, Panama Refining Co. v. Ryan, was decided January 7, 1935. This was the first case in which the Supreme Court held an act of Congress unconstitutional because it delegated too much discretion to the President.
3 J. W. Hampton Jr. & Co. v. United States (276 U. S. 394) and subsequent cases before the Customs Court, and the Court of Customs and Patent Appeals, are more fully discussed by the author of this article in “The President's Control of the Tariff” (Harvard University Press, 1936)Google Scholar, Chaps. 2–5.
4 26 Stat. 12.
5 143 U. S. 649. Chief Justice Fuller and Justice Lamar dissented.
6 30 Stat. 103. There was also added section 4, which provided for a 20 per cent reduction of duties in the general list; but this could become effective only upon the conclusion and ratification of a treaty. Such treaties were made, but none was ever ratified.
7 The items placed on this bargaining list were such that no great objection arose from the protectionists' quarter, and apparently no case involving the constitutional question reached the Supreme Court. The case of Field v. Clark was regarded as pertinent and binding.
8 One of the protests now pending before the Customs Court involves penalty duties imposed on goods from Germany. The importer had been enjoying the advantages of the Swedish trade agreement, by virtue of our most-favored-nation treaty with Germany. He now seeks to have the President's power to impose such penalty duties declared unconstitutional. In short, he seems to think that he can get the penalty duties declared unconstitutional on the ground that too much power has been delegated to the Chief Executive, without at the same time jeopardizing the favorable Swedish trade agreement.
9 Section 514: Protest Against Collector's Decisions: “Except as provided in subdivision (b) of section 516 of this Act [relating to protests by American manufacturers, producers, and wholesalers], all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character [within the jurisdiction of the Secretary of the Treasury], and his decisions excluding any merchandise from entry or delivery, under any provision of the customs laws, and his liquidation or reliquidation of any entry, or refusal to pay any claim for drawback, or his refusal to reliquidate any entry for a clerical error discovered within one year after the date of entry, or within sixty days after liquidation or reliquidation when such liquidation or reliquidation is made more than ten months after the date of entry, shall, upon the expiration of sixty days after the date of such liquidation, reliquidation, decision, or refusal, be final and conclusive upon all persons (including the United States and any officer thereof), unless the importer, consignee, or agent of the person paying such charge or exaction, or filing such claim for drawback, or seeking such entry or delivery, shall, within sixty days after, but not before such liquidation, reliquidation, decision, or refusal, as the case may be, as well in cases of merchandise entered in bond as for consumption, file a protest in writing with the collector setting forth distinctly and specifically, and in respect to each entry, payment, claim, decision, or refusal, the reasons for the objection thereto. The reliquidation of an entry shall not open such entry so that a protest may be filed against the decision of the collector upon any question not involved in such reliquidation.”
10 Decided Dec. 2, 1936.
11 United States v. Schwartz. 3 C.C.A. 24 (1912).
12 Act of Oct. 3, 1913, c. 16, 38 Stat., Section III, Part N. This section provided specifically that importers could sue only in case the duty assessed was too high. The language of section 14 of the Dingley Act (1897), unchanged by the Tariff Act of 1909, provided that an importer could sue “if dissatisfied.” A majority in a divided court in the case of Schwartz held that this covered objections of any kind, and was not limited to the common law protest against excessive duties.
13 The Supreme Court had no appellate jurisdiction in customs cases at the time of the Schwartz case.
14 Louisiana v. McAdoo, 234 U. S. 627, at p. 632.
15 The Court here cited the act referred to in note 12 above, i.e., the Underwood Tariff Act. The italics are mine.
16 This fact is admitted in the plaintiff's brief for a rehearing (February, 1937). He is attempting to show that the operation of the act is causing a serious injury to his business as a domestic producer in Florida.
17 262 U. S. 700, 709–710. See also Cooley's, Constitutional Limitations, 8th ed., I, pp. 339Google Scholar.
18 In Mass. v. Mellon, 262 U. S. 447, 448, the court asserted: “We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. The question may be considered only when the justification of some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.” The italics are mine.
19 209 U. S. 123.
20 A. Magnano v. Hamilton, 292 U. S. 40 (1934).
21 Except in Mr. Justice Butler's reasoning in Great Northern Ry. Co. v. Weeks, 297 U. S. 135 (1936).
22 In Von Damm v. United States (T. D. 48485, August 10, 1936), a controversy over the special status of Cuba arose. This was anticipated in my monograph, The President's Control of the Tariff, pp. 53–55. Behind this case is also a bit of high politics. The Florida producers of fruits and vegetables are inducing the South American countries to raise the somewhat embarrassing question (from the “good neighbor” point of view) of Cuban status.
23 224 U. S. 583, 600.
24 Bouvier's Dictionary, II, 1136Google Scholar.
25 Green v. Biddle, 8 Wheat. 1, 85; Virginia v. West Va., 11 Wall. 39, 59; Poole v. Fleeger, 11 Peters, 185, 209.
26 Head Money Cases, 112 U.S. 580, 589.
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