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1
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- MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
- On January 27, 1936, an
indictment was returned in the court below, the first count of which
charges that appellees, beginning with the 29th day of May, 1934,
conspired to sell in the United States certain arms of war, namely
fifteen machine guns, to Bolivia, a country then engaged in armed
conflict in the Chaco,
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2
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- [The appellees were charged with a] violation of the Joint Resolution of
Congress approved May 28, 1934, and the provisions of a proclamation
issued on the same day by the President of the United States pursuant to
authority conferred by § 1 of the resolution.
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3
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- A Joint Resolution of Congress in 1934 provided:
- Resolved: If the President finds that the prohibition of the sale of
arms and munitions of war in the United States to those countries now
engaged in armed conflict in the Chaco may contribute to the
reestablishment of peace between those countries,
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- and if after consultation with the governments of other American
Republics and with their cooperation, as well as that of such other
governments as he may deem necessary,
- [the President] makes proclamation to that effect, it shall be unlawful
to sell, except under such limitations and exceptions as the President
prescribes, any arms or munitions of war in any place in the United
States to the countries now engaged in that armed conflict, or to any
person, company, or association acting in the interest of either
country, until otherwise ordered by the President or by Congress.
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- The President's proclamation after reciting the terms of the Joint
Resolution, declared:
- 'Now, Therefore, I, Franklin D. Roosevelt, President of the United
States of America, acting under and by virtue of the authority conferred
in me by the said joint resolution of Congress, do hereby declare and
proclaim
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6
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- that I have found that the prohibition of the sale of arms and munitions
of war in the United States to those countries now engaged in armed
conflict in the Chaco may contribute to the reestablishment of peace
between those countries. [I have followed all the procedural
requirements for consultation in the law and found the required facts to
support the proclamation.']
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- First. It is contended that by the Joint Resolution the going into
effect and continued operation of the resolution was conditioned
- (a) upon the President's judgment as to its beneficial effect upon the
re- establishment of peace between the countries engaged in armed
conflict in the Chaco;
- (b) upon the making of a proclamation, which was left to his unfettered
discretion, thus constituting an attempted substitution of the
President's will for that of Congress;
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8
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- (c) upon the making of a proclamation putting an end to the operation of
the resolution, which again was left to the President's unfettered
discretion; and
- (d) further, that the extent of its operation in particular cases was
subject to limitation and exception by the President, controlled by no
standard. In each of these particulars, appellees urge that Congress
abdicated its essential functions and delegated them to the Executive.
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- Whether, if the Joint Resolution had related solely to internal affairs,
it would be open to the challenge that it constituted an unlawful
delegation of legislative power to the Executive, we find it unnecessary
to determine.
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- The whole aim of the resolution is to affect a situation entirely
external to the United States, and falling within the category of
foreign affairs.
- The determination which we are called to make, therefore, is whether the
Joint Resolution, as applied to that situation, is vulnerable to attack
under the rule that forbids a delegation of the lawmaking power. In
other words, assuming (but not deciding) that the challenged delegation,
if it were confined to internal affairs, would be invalid, may it
nevertheless be sustained on the ground that its exclusive aim is to
afford a remedy for a hurtful condition within foreign territory?
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- The result of holding that the joint resolution here under attack is
void and unenforceable as constituting an unlawful delegation of
legislative power would be to stamp this multitude of comparable acts
and resolutions as likewise invalid.
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- an impressive array of legislation enacted by nearly every Congress from
the beginning of our national existence to the present day, must be
given unusual weight in the process of reaching a correct determination
of the problem.
- A legislative practice such as we have here, evidenced not by only
occasional instances but marked by the movement of a steady stream
for a century and a half of time, goes a long way in the direction of
proving the presence of unassailable ground for the constitutionality of
the practice, to be found in the origin and history of the power
involved, or in its nature, or in both combined.
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- The uniform, long-continued and undisputed legislative practice just
disclosed rests upon an admissible view of the Constitution which, even
if the practice found far less support in principle than we think it
does, we should not feel at liberty at this late day to disturb.
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- It was not within the power of the President to repeal the Joint
Resolution; and his second proclamation [ending the arms embargo] did
not purport to do so.
- It 'revoked' the first proclamation; and the question is, did the
revocation of the proclamation have the effect of abrogating the
resolution or of precluding its enforcement in so far as that involved
the prosecution and punishment of offenses committed during the life of
the first proclamation? We are of opinion that it did not.
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- Prior to the first proclamation, the Joint Resolution was an existing
law, but dormant, awaiting the creation of a particular situation to
render it active.
- No action or lack of action on the part of the President could destroy
its potentiality. Congress alone could do that.
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- The proclamation by the President-did not call the law into being. It
created the occasion for it to function.
- The second proclamation did not put an end to the law or affect what had
been done in violation of the law. The effect of the proclamation was
simply to remove for the future a condition of affairs which admitted of
its exercise.
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Notes
