SEPARATE AND OPPOSED– Congress vs. the Court

ROBERT W. LANGRAN

(In YEARBOOK 1977, Dr. Langran wrote "President vs. the Court," a description of the challenging positions often assumed by the Chief Executive and the high tribunal. He complements that study with the present article on the continuing challenges between the legislative and judicial branches.)

The Constitution of the United States created three separate branches of government and made them equal with each other. Theoretically that is good, as power shared makes those in power less able to be dictatorial, and it also enables those in power to specialize in their particular area, thus making for a more efficient government. In practice, however, it has not always worked out that way, as each branch has, at times, encroached upon another branch's area or else has felt that another branch was starting to meddle in its area of competence. The purpose of this article, therefore, is to focus on the relationship between Congress and the Supreme Court, not just where they have clashed but where they have cooperated.

As far as the Constitution is concerned, little is said about the relationship between Congress and the Court. Article II, Section 2, does stipulate that the President ..... by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court . . ." Article III, Section 2, after defining the Supreme Court's original jurisdiction, goes on to state that ". . . the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Aside from these the Constitution is silent about the relationship between these two branches, but areas of cooperation and disagreement have sprung up as to the use and extent of powers conferred either explicitly or impliedly upon one or the other branch. Of these the biggest bone of contention has been the lawmaking power.

Lawmaking

Article I, Section 1 of the Constitution says clearly that "All legislative Powers herein granted shall be vested in a Congress of the United States . . ." However, what happens if the Congress should pass a law at odds with the Constitution? Although the Constitution is silent on this point, the Supreme Court has stepped in and has said that the Constitution impliedly has given it the power to declare unconstitutional that law–the power known as judicial review.

Although not used until 1803, the Court inferred that it had that power in 1796, in Hylton v. United States (3 Dallas 171). In that case the Court sustained a carriage tax enacted by Congress by declaring it to be an indirect tax and thus, since it was uniform throughout the country, levied as required by the Constitution. The implication was there, however, that the Court could have declared the statute unconstitutional had it found that it had not been enacted as prescribed by the Constitution.

The celebrated case of Marbury v. Madison (1 Cranch 137) grew out of an attempt by the outgoing Federalists (John Adams and his Congress) to see to it that Federalists at least dominated the judicial branch, rather than to see that branch also in the hands of the incoming Jeffersonian-Republicans. Accordingly, in February, 1801, two laws were passed. One created six new circuit courts with their own judges–sixteen in all, which in addition to giving the Federalists these sixteen positions also relieved the Supreme Court Justices from the burdensome task of riding the circuit to hear cases at the circuit court level. The act also created more dis-. trict courts. The second law created forty-two judgeships for the District of Columbia. It was this one that precipitated the Mar-bury case. (See article, "Equal Justice Under Law.

The decision in Marbury got Marshall out of a dilemma, since he held that although Marbury was entitled to the commission of office, as it was a rightful appointment (thus upholding the Federalist actions and placing moral blame upon the Jeffersonian Republicans), the Court had no power to issue writs of mandamus in cases of original jurisdiction such as this one. Since Section 13 of the 1789 Judiciary Act had given the Court that power, that section was unconstitutional. The reason is was unconstitutional, according to Marshall, was that the Court's original jurisdiction was defined in the Constitution, and could only be enlarged or diminished by constitutional amendment.

Thus the Supreme Court, for the first time, invalidated an act or part of an act of Congress. Marshall got out of the dilemma of Congressional confrontation, although the Jeffersonian Republicans claimed that the only decision rendered by the Court was that Marbury and the others were not entitled to their commissions of office. Everything else, including the part about judicial review, was obiter dicta (extra words which do not affect the decision).

A few days later the Court, in Stuart v. Laird, (1 Cranch 299) upheld the Jeffersonian law which repealed the Circuit Court Act and thus required the Justices to ride circuit once more. Although Marshall abstained from this case, and although later critics have said the Court evaded a more fundamental issue than was offered in Marbury, the holding mollified Congress.

The Supreme Court did not utilize judicial review over a federal act once again until the famous 1857 decision in Dred Scott v. Sandford '(19 Howard 393). In that case the 1820 Missouri Compromise was declared unconstitutional by Chief Justice Roger B. Taney. That statute had stipulated that there would be no slavery north of the southern boundary of Missouri (Missouri expected) in the territory of the Louisiana Purchase. Taney felt that slaves were property, and therefore Congress, by the Missouri Compromise, was denying citizens property without due process of law, which was a violation of the Fifth Amendment.

After that decision, and commencing with the Court under Taney's successor Salmon P. Chase, the Court has invalidated more than 100 federal acts, with the high watermark coming under the Earl Warren Supreme Court when some 21 federal laws were declared unconstitutional mostly because of civil liberties infringements.

Of these statutes which have fallen, one deserves special notice because, as with Marbury, it concerned the constitutional limits to Supreme Court jurisdiction. The case is Muskrat v. United States (219 U.S. 346), in 1911. It involved the federal government's policy of giving land to American Indians under the condition that they could not sell or dispose of the land for twenty-five years. Since that condition was of uncertain legality, Congress passed an act in 1907 authorizing class action suits challenging the condition, said suits to be heard in the Court of Claims and in the Supreme Court with special priority over other cases and with the government paying the legal expenses in case the judgment went against the Indians.

Accordingly, Muskrat and other Cherokee Indians brought suit. The unanimous decision of the Court, written by Justice Day, declared the 1907 statute unconstitutional because it was not a legitimate case or controversy which was being brought before it, but rather an attempt by Congress to have the Court act in a non-judicial question. Thus once again the Court rebuffed Congress in an attempt to give the Court more jurisdiction than it constitutionally possessed.

Broadening the Lawmaking Power

Just as John Marshall went against Congress in Marbury, he and his Court gave Congress' lawmaking power a vastly broadened scope in the 1819 case of McCulloch v. Maryland (4 Wheaton 316). That case, and the 1824 case of Gibbons v. Ogden, are both discussed in another part of this issue. A further area of lawmaking which deserves note, is the occasional attempt by Congress to delegate its lawmaking power to the executive branch. The Court has had to decide on occasion if this delegation is proper. The first case in which the question arose was in 1892 in Field v. Clark (143 U.S. 649). In the 1890 Tariff Act Congress allowed the President to take an import off the free list and to impose a prescribed duty upon it if he felt that the nation concerned was being unfair in its imports from this country. To the objection that Congress was delegating its power to the President the Court, speaking through Justice Harlan, said that although outright delegation was unconstitutional, in this case the President was merely ascertaining a fact and then acting accordingly–he was not engaging in actual law making.

In 1904, in Butterfield v. Stranahan, (192 U.S. 470) the Court even allowed minor executive policy making by upholding the 1897 Tea Inspection Act which allowed the Secretary of the Treasury to appoint a Board of Tea Inspectors who would set standards for tea and then inspect and grade all imported tea, with that which was below standard denied entry. The Court; through Justice White, ruled that Congress had 'fixed the primary standard and policy for the tea board to follow.

In the 1911 case of United States v. Grimaud (200 U.S. 506) the Court even allowed Congress to permit an administrative agency, in this case the Department of Agriculture, to issue regulations on grazing in forest reservations and to impose penalties should those regulations be violated. Justice Lamar, speaking for the Court, upheld this 1905 law and drew a distinction between administrative rules and legislative power.

The Court will not permit an outright delegation of legislative power; in the 1935 case of Panama Refining Company v. Ryan (293 U.S. 388) it struck down section 9(c) of the National Industrial Recovery Act which allowed the President to prohibit the interstate commerce shipments of oil produced or stored in excess of limitations imposed by states. Chief Justice Hughes felt that there were no adequate standards set by Congress for the President.

A short time later, in Schechter v. United Slates (295 U.S. 495), the entire N.I.R.A. was invalidated, one of the main reasons given by Hughes being that the delegation of legislative power was invalid. The law provided for codes of fair competition to be drawn up by private business groups and promulgated by the President. The codes were first done by private individuals rather than by the President, and there was a further problem in that there were no limits put upon the President outside of the vague preamble of the statute. The President was thus free to regulate our whole economy. Even as liberal a Justice as Cardozo called it "delegation run riot" in a concurring opinion.

Jurisdiction

Congress is empowered by the Constitution to determine the extent of the Supreme Court's appellate jurisdiction. The Court rebuffed Congress in this regard in the Muskrat case, but in another, very famous case, the Court deferred to Congress in the matter of jurisdiction. That case was Ex pane McCardle (7 Wallace 506) in 1869, habeas corpus proceeding brought by MeCardle, contending that he was being detained contrary to due process of law. McCardle was a newspaper editor in Mississippi and at that time the military was in control of the Mississippi government. He was detained by the army on charges that his paper published articles that were incendiary and libelous. Since he was a civilian he felt that his restraint was unlawful, and the Supreme Court heard arguments in the case.

Meanwhile, the Radical Republicans in control of Congress were afraid that the Supreme Court might strike down as unconstitutional much of the harsh Reconstruction legislation. Since this case might be a good opportunity for the Court to do just that,. Congress rushed through a statute denying the Court jurisdiction in the case. Congress did this by simply repealing an 1867 statute which had allowed appeals to the Court in cases similar to McCardle's. The Court, although it had already heard the arguments in the case, apparently decided that discretion was the better part of valor, and acknowledged that the Constitution gives Congress complete control over the Court's appellate jurisdiction and dismissed McCardle's petition.

Just three years later the Court did not 'back down. United States v. Klein (13 Wallace 128) involved a party seeking indemnification for property seized during the Civil War. Earlier decisions had stated that such party would receive the compensation if pardoned by the President. Klein got the pardon, was awarded the property in the Court of Claims, and while the case was in the process of appeal to the Supreme Court, Congress passed a statute directing the judiciary to dismiss all these claims for want of jurisdiction. The Supreme Court, however, unlike in McCardle, proceeded to hear the appeal, in the process holding the act of Congress an unconstitutional attempt to invade the judicial province by prescribing a rule of decision in a pending case, and also an unconstitutional attempt to impair the pardoning power of the President.

Investigations by Congress

One of the areas which has given rise to much interplay between Congress and the Supreme Court has been the extent of the power of Congress to conduct investigations. The earliest case of importance was the 1881 case of Kilbourn v. Thompson (103 U.S. 168) in which the Court set aside the contempt citation of Hallett Kilbourn for refusing to answer questions or producing documents requests by a House of Representatives select committee looking into the collapse of Jay Cooke's banking firm. Justice Miller, speaking for the Court, felt that the House was looking into the personal affairs of individuals and that no valid legislation could result from it. If anyone conducted an investigation in this area, asserted Miller, it should be a court since the matter was judicial in nature.

In 1927, in McGrain v. Daugherty (273 U.S. 135) however, Congress fared better. A Senate committee was investigating Attorney General Harry Daugherty's conduct and on two occasions subpoenaed his brother Mally to appear before it. He refused each time and the Senate took him into custody. The Court, in an opinion written by Justice Van Devanter, upheld the action of the Senate because the investgation was held to be conducted with legislative intent in mind.

Two years later, in Sinclair v. United States (279 U.S. 263), the Court again upheld a Senate investigating committee, this time to elicit testimony concerning fraudulent leases of government property. Sinclair felt the matters were private and also involved matters pending in the courts, but the Supreme Court ruled that there was legislative intent involved and thus the witness would have to answer. However, the Court did say that the witness could refuse to answer questions which exceeded the committee's power or where they were not pertinent to the matter under inquiry.

In 1957 came the famous Watkins v. United States case (354 U.S. 178). Watkins was a labor leader testifying before the House Committee on Un-American Activities. He refused to answer questions, however, about other individuals no longer involved in the Communist movement and was cited for contempt. The Supreme Court, under Chief Justice Warren, reversed the conviction, holding that the congressional investigative power was not unlimited, that it cannot expose the private affairs of individuals without a legislative function in mind, and it was not a law enforcement or trial agency.

However, two years later in Barenblatt v. United States (360 U. 5. 109), the Court, speaking through Justice Harlan, upheld a contempt conviction for refusing to answer questions put to a witness by the same committee, the only difference being that this time the committee was investigating Coinmunism in higher education. Harlan felt that the House charge to the committee was clear and made relevant the questions by the committee on the subject being investigated. Harlan balanced the rights of the individual against the nation's right to self-preservation and ruled for the latter.

Next followed a series of cases in which the Court displayed a certain ambivalence concerning congressional investigative power. In 1961, in Wilkinson v. United States (365 U.S. 399), and Braden v. United States (365 U.S. 431), Justice Stewart upheld the right of the House Committee on Un-American Activities to cite for contempt two journalists who had followed its subcommittee to Atlanta where it was conducting hearings on Communism in southern industry and who had subsequently refused to testify when subpoenaed by the subcommittee. The court stated that the subcommittee investigation had been properly authorized, for a valid legislative purpose, and the questions were pertinent to the inquiry.

In 1962, in Hutcheson v. United States (365 U.S. 599), the Court speaking through Justice Harlan upheld a contempt conviction for refusing to answer questions put to a witness by a Senate committee investigating the labor-management field. Hutcheson was under indictment in Indiana, and contended that his answers might incriminate him while not serving any legislative purpose. The Court held that the self-incrimination argument had not been used at the committee level and that the questions were pertinent to the committee's charge and were within the authority of Congress.

That same year in Russell v. United States (369 U.S. 749), Justice Stewart reversed six convictions for refusal to testify (two before the House Committee on Un-American Activities and four before the Senate Internal Security Sub-Committee). The majority opinion held that in all instances there was failure to identify the subject being investigated, and therefore the witnesses did not really know the nature of the indictments against them.

In the 1963 case of Yellin v. United States (374 U.S. 109) Chief Justice Warren reversed the conviction of a witness who would not testify because the House Committee on Un-American Activities refused his request for a closed hearing despite their own rules providing for it.

Finally, in the 1966 case of Go jack v. United States (369 U.S. 749), Justice Fortas, speaking for a unanimous Court, reversed the conviction of one who had been freed four years previously, then reindicted, tried, and convicted. The Court reversed, claiming that the House had never given the subcommittee in question any clear authority. He based that decision on the fact that the main committee had no resolution authorizing the subcommittee nor defining its jurisdiction.

 

Congressional Districts

The Supreme Court has also gotten involved in the sizes of districts for the House of Representatives, despite the objections of Justice Harlan and others that this was a political area into which the Court should not venture. In the 1964 Wesberry v. Sanders case (376 U.S. 1), Justice Black held that House districts must be equal in population and accordingly made void a Georgia congressional apportionment law.

In 1969, in Kirkpatrick v. Preisler (394 U.S. 526), the Court through Justice Brennan held that equality meant absolute equality and therefore struck down Missouri's congressional apportionment law under which there was only a three percent variation from the ideal but where the state had conceded it could have come closer had it so desired. Finally, in the 1973 case of White v. Weiser (412 U.S. 783), the Court struck down the Texas apportionment scheme even though the maximum deviation was 4.1%, because the plaintiff's had submitted a plan with a .159% deviation and therefore the state's deviation was not unavoidable.

In summation, one can see that the relationship between Congress and the Supreme Court has been a balanced one with neither dominating the other. The Court has exercised judicial review over legislative enactments, but it has also broadened Congress' legislative powers by its interpretations of the implied powers, commerce clause, and delegation of powers. Congress has seldom curtailed the Court's jurisdiction, and the Court in turn has been balanced on Congress' investigative function.

The Court has seldom ruled directly on individual members of Congress and Congress in turn has only once attempted impeachment (the trial of Samuel Chase in 1805). Congressional districting is an area where the Court has been tough, but Congress in turn has been tough on recent Court appointments. All in all, the system of separation of powers and checks and balances envisioned by our Founding Fathers seems to be working for Congress and the Supreme Court.