U.S. Supreme Court Yakus v. United States, 321
U.S. 414 (1944) Yakus v. United
States No. 374 Argued January 7,
1944 Decided March 27, 1944 321
U.S. 414 ast|>* 321
U.S. 414 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE FIRST
CIRCUIT Syllabus 1. The Emergency Price Control Act of 1942, as amended, held not to involve an unconstitutional delegation to the
Price Administrator of the legislative power of Congress to control
commodity prices in time of war. P. 321 U. S.
423 .

															(a) The Act, the declared purpose of which is to prevent wartime
inflation, provides for the establishment of an Office of Price
Administration under the direction of a Price Administrator
appointed by the President. The Administrator is authorized, after
consultation with representative members of the industry so far as
practicable, to promulgate regulations fixing prices of commodities
which "in his judgment will be generally fair and equitable and
will effectuate the purposes of this Act" when, in his judgment,
their prices "have risen or threaten to rise to an extent or in a
manner inconsistent with the purposes of this Act." The
Administrator is directed in fixing prices to give due
consideration, so far as practicable, to prices prevailing during
a Page 321 U. S. 415 designated base period, and to make adjustments for relevant
factors of general applicability. P. 321 U. S. 419 et seq. (b) The essentials of the legislative function are preserved
when Congress has specified the basic conditions of fact upon whose
existence or occurrence, ascertained from relevant data by a
designated administrative agency, it directs that its statutory
command shall be effective. It is no objection that the
determination of facts and the inferences to be drawn from them in
the light of the statutory standards and declaration of policy call
for the exercise of judgment, and for the formulation of subsidiary
administrative policy within the prescribed statutory framework. P. 321 U. S.
424 .

															(c) Acting within its constitutional power to fix prices, it is
for Congress to say whether the data on the basis of which prices
are to be fixed are to be confined within a narrow or a broad
range. P. 321 U. S.
425 .

															(d) Congress is not confined to that method of executing its
policy which involves the least possible delegation of discretion
to administrative officers. P. 321 U. S.
425 .

															(e) The standards prescribed by the Act, with the aid of the
"statement of considerations" required to be made by the
Administrator, are sufficiently definite and precise to enable
Congress, the courts and the public to ascertain whether the
Administrator, in fixing the designated prices, has conformed to
those standards. P. 321 U. S.
426 .

															2. The procedure prescribed by §§ 203 and 204 of the Emergency
Price Control Act for determining the validity of the
Administrator's price regulations -- by protest to and hearing
before the Administrator, whose determination may be reviewed on
complaint to the Emergency Court of Appeals and by this Court on
certiorari -- is exclusive, and precludes the defense of invalidity
of the regulation in a criminal prosecution for its violation. Pp. 321 U. S. 427 , 321 U. S.
429 .

															3. Petitioners, who have not resorted to the procedure
prescribed by Congress, can excuse their failure to do so, and can
show a denial of constitutional right, only by showing that that
procedure is incapable of affording them the due process of law
guaranteed by the Fifth Amendment. P. 321 U. S.
434 .

															4. The provisions of the Emergency Price Control Act, construed
to deprive petitioners of opportunity to attack the validity of a
price regulation (establishing maximum prices for the sale of
certain meats at wholesale) in a prosecution for its violation, held not Page 321 U. S. 416 on their face incapable of affording due process of law. P. 321 U.S. 435 .

															(a) Petitioners were not required by the Act, nor by any other
rule of law, to continue selling at a loss. P. 321 U. S.
431 .

															(b) The sixty days' period allowed for protest to the
Administrator was not unduly short in view of the power of the
Administrator to extend the time for presentation of evidence, and
the right given by the Act to apply to the Emergency Court of
Appeals for leave to introduce any evidence "which could not
reasonably" have been offered to the Administrator. P. 321 U.S. 435 .

															(c) Since the Administrator's regulations provide for a full
oral hearing in appropriate cases, the Court does not consider, in
the absence of any application to the Administrator for such a
hearing, whether the denial or an oral hearing in any particular
case would be a denial of due process. P. 321 U. S.
436 .

															(d) In the absence of any application to the Administrator, it
cannot be assumed that he will deny due process to any applicant.
And the Emergency Court of Appeals, and this Court upon certiorari,
have full power to correct any denial of due process or other
procedural error that may occur in a particular case. Pp. 321 U. S. 434 , 321 U. S.
437 .

															5. Under the circumstances in which the Act was adopted and must
be applied, its denial of any judicial stay pending determination
of the validity of a regulation does not deny due process. P. 321 U. S.
437 .

															(a) The statute provides an expeditious means of testing the
validity of a price regulation without necessarily incurring any of
the penalties provided by the Act. P. 321 U. S.
438 .

															(b) The due process clause is not violated by a statutory denial
of a right to a restraining order or interlocutory injunction to
one who has failed to apply for available administrative relief,
not shown to be inadequate, from the operation of an administrative
regulation, pending determination of its validity. P. 321 U. S.
439 .

															(c) The award of an interlocutory injunction by courts of equity
is not a matter of right, even though irreparable injury may
otherwise result to the plaintiff. And the legislative formulation
of what would otherwise be a rule of judicial discretion is not a
denial of due process or a usurpation of judicial functions. Pp. 321 U. S. 440 , 321 U. S.
442 .

															(d) The public interest may justify legislative authorization of
summary action subject to later judicial review of its validity. P. 321 U. S.
442 .

															6. No principle of law or provision of the Constitution
precludes Congress from making criminal the violation of an
administrative regulation, Page 321 U. S. 417 by one who has failed to avail himself of an adequate separate
procedure for the adjudication of its validity, or precludes the
practice of splitting the trial for violations of an administrative
regulation by committing the determination of the issue of its
validity to the agency which created it, and the issue of violation
to a court which is given jurisdiction to punish violations. P. 321 U. S.
444 .

															7. The Court does not decide whether one charged with criminal
violation of a duly promulgated price regulation may defend on the
ground that the regulation is unconstitutional on its face, or
whether one who is forced to trial and convicted of violation of a
regulation, while diligently seeking determination of its validity
by the statutory procedure, may thus be deprived of the defense
that the regulation is invalid. P. 321 U. S.
446 .

															8. The Seventh Amendment's guarantee of a jury trial is
inapplicable to a proceeding within the equity jurisdiction of the
Emergency Court of Appeals to test the validity of a price
regulation. P. 321 U. S.
447 .

															9. In the present criminal proceeding, there was no denial of
the right of trial by jury, guaranteed by the Sixth Amendment, to a
trial by a jury of the State and district where the crime was
committed. The question whether petitioners had committed the crime
charged in the indictment and defined by Congress, namely, whether
they had violated the statute by willful disobedience of a price
regulation promulgated by the Administrator, was properly submitted
to the jury. P. 321 U. S.
447 .

															137 F.2d 850, affirmed.

															CERTIORARI, 320 U.S. 730, to review the affirmance of
convictions for violations of the Emergency Price Control Act. Page 321 U. S. 418 OPINION of the Court by MR. CHIEF JUSTICE STONE, announced by
MR. JUSTICE ROBERTS.

															The questions for our decision are: (1) Whether the Emergency
Price Control Act of January 30, 1942, 56 Stat. 23, 50 U.S.C.App.
Supp. II, §§ 901 et seq., as amended by the Inflation
Control Act of October 2, 1942, 66 Stat. 765, 50 U.S.C.App. Supp.
II, §§ 961 et seq., involves an unconstitutional
delegation to the Price Administrator of the legislative power of
Congress to control prices; (2) whether § 204(d) of the Act was
intended to preclude consideration by a district court of the
validity of a maximum price regulation promulgated by the
Administrator, as a defense to a criminal prosecution for its
violation; (3) whether the exclusive statutory procedure set up by
§§ 203 and 204 of the Act for administrative and judicial review of
regulations, with the accompanying stay provisions, provide a
sufficiently adequate means of determining the validity of a price
regulation to meet the demands of due process, and (4) whether, in
view of this available method of review, § 204(d) of the Act, if
construed to preclude consideration of the validity of the
regulation as a defense to a prosecution for violating it,
contravenes the Sixth Amendment, or works an unconstitutional
legislative interference with the judicial power.

															Petitioners in both of these cases were tried and convicted by
the District Court for Massachusetts upon several counts of
indictments charging violation of §§ 4(a) and 205(b) of the Act by
the willful sale of wholesale cuts of beef at prices above the
maximum prices prescribed by §§ 1364.451-1364.455 of Revised
Maximum Price Regulation No. 169, 7 Fed.Reg. 10381 et seq. Petitioners have not availed themselves of the procedure set up by
§§ 203 and 204 by which any person subject to a maximum price
regulation may test its validity by protest to and hearing before
the Administrator, whose determination may be Page 321 U. S. 419 reviewed on complaint to the Emergency Court of Appeals and by
this Court on certiorari, see Lockerty v. Phillips, 319 U. S. 182 .
When the indictments were found, the 60 days' period allowed by the
statute for filing protests had expired.

															In the course of the trial the District Court overruled or
denied offers of proof, motions and requests for rulings, raising
various questions as to the validity of the Act and Regulation,
including those presented by the petitions for certiorari. In
particular petitioners offered evidence, which the District Court
excluded as irrelevant, for the purpose of showing that the
Regulation did not conform to the standards prescribed by the Act
and that it deprived petitioners of property without the due
process of law guaranteed by the Fifth Amendment. They specifically
raised the question reserved in Lockerty v. Phillips,
supra, whether the validity of a regulation may be challenged
in defense of a prosecution for its violation although it had not
been tested by the prescribed administrative procedure and
complaint to the Emergency Court of Appeals. The District Court
convicted petitioners upon verdicts of guilty. The Circuit Court of
Appeals for the First Circuit affirmed, 137 F.2d 850, and we
granted certiorari, 320 U.S. 730. I The Emergency Price Control Act provides for the establishment
of the Office of Price Administration under the direction of a
Price Administrator appointed by the President, and sets up a
comprehensive scheme for the promulgation by the Administrator of
regulations or orders fixing such maximum prices of commodities and
rents as will effectuate the purposes of the Act and conform to the
standards which it prescribes. The Act was adopted as a temporary
wartime measure, and provides in § 1(b) for its termination on June
30, 1943, unless sooner Page 321 U. S. 420 terminated by Presidential proclamation or concurrent resolution
of Congress. By the amendatory Act of October 2, 1942, it was
extended to June 30, 1944.

															Section 1(a) declares that the Act is "in the interest of the
national defense and security and necessary to the effective
prosecution of the present war," and that its purposes are:

															"to stabilize prices and to prevent speculative, unwarranted,
and abnormal increases in prices and rents; to eliminate and
prevent profiteering, hoarding, manipulation, speculation, and
other disruptive practices resulting from abnormal market
conditions or scarcities caused by or contributing to the national
emergency; to assure that defense appropriations are not dissipated
by excessive prices; to protect persons with relatively fixed and
limited incomes, consumers, wage earners, investors, and persons
dependent on life insurance, annuities, and pensions, from undue
impairment of their standard of living; to prevent hardships to
persons engaged in business, . . . and to the Federal, State, and
local governments, which would result from abnormal increases in
prices; to assist in securing adequate production of commodities
and facilities; to prevent a post-emergency collapse of values; . .
."

															The standards which are to guide the Administrator's exercise of
his authority to fix prices, so far as now relevant, are prescribed
by § 2(a) and by § 1 of the amendatory Act of October 2, 1942, and
Executive Order 9250, promulgated under it. 7 Fed.Reg. 7871. By §
2(a), the Administrator is authorized, after consultation with
representative members of the industry so far as practicable, to
promulgate regulations fixing prices of commodities which "in his
judgment will be generally fair and equitable and will effectuate
the purposes of this Act" when, in his judgment, their prices "have
risen or threaten to rise to an extent or in a manner inconsistent
with the purposes of this Act." Page 321 U. S. 421 The section also directs that

															"So far as practicable, in establishing any maximum price, the
Administrator shall ascertain and give due consideration to the
prices prevailing between October 1 and October 15, 1941 (or if, in
the case of any commodity, there are no prevailing prices between
such dates, or the prevailing prices between such dates are not
generally representative because of abnormal or seasonal market
conditions or other cause, then to the prices prevailing during the
nearest two-week period in which, in the judgment of the
Administrator, the prices for such commodity are generally
representative) . . . and shall make adjustments for such relevant
factors as he may determine and deem to be of general
applicability, including . . . [s]peculative fluctuations, general
increases or decreases in costs of production, distribution, and
transportation, and general increases or decreases in profits
earned by sellers of the commodity or commodities, during and
subsequent to the year ended October 1, 1941."

															By the Act of October 2, 1942, the President is directed to
stabilize prices, wages and salaries "so far as practicable" on the
basis of the levels which existed on September 15, 1942, except as
otherwise provided in the Act. By Title I, § 4 of Executive Order
No. 9250, he has directed "all departments and agencies of the
Government" "to stabilize the cost of living in accordance with the
Act of October 2, 1942." [ Footnote
1 ]

															Revised Maximum Price Regulation No. 169 was issued December 10,
1942, under authority of the Emergency Price Control Act as amended
and Executive Order No. 9250. The Regulation established specific
maximum Page 321 U. S. 422 prices for the sale at wholesale of specified cuts of beef and
veal. As is required by § 2(a) of the Act, it was accompanied by a
"statement of the considerations involved" in prescribing it. From
the preamble to the Regulation and from the Statement of
Considerations accompanying it, it appears that the prices fixed
for sales at wholesale were slightly in excess of those prevailing
between March 16 and March 28, 1942, [ Footnote 2 ] and approximated those prevailing on September
15, 1942. Findings that the Regulation was necessary, that the
prices which it fixed were fair and equitable, and that it
otherwise conformed to the standards prescribed by the Act, appear
in the Statement of Considerations.

															That Congress has constitutional authority to prescribe
commodity prices as a war emergency measure, and that the Act was
adopted by Congress in the exercise of that power, are not
questioned here, and need not now be considered save as they have a
bearing on the procedural Page 321 U. S. 423 features of the Act later to be considered which are challenged
on constitutional grounds.

															Congress enacted the Emergency Price Control Act in pursuance of
a defined policy, and required that the prices fixed by the
Administrator should further that policy and conform to standards
prescribed by the Act. The boundaries of the field of the
Administrator's permissible action are marked by the statute. It
directs that the prices fixed shall effectuate the declared policy
of the Act to stabilize commodity prices so as to prevent wartime
inflation and its enumerated disruptive causes and effects. In
addition, the prices established must be fair and equitable, and,
in fixing them, the Administrator is directed to give due
consideration, so far as practicable, to prevailing prices during
the designated base period, with prescribed administrative
adjustments to compensate for enumerated disturbing factors
affecting prices. In short, the purposes of the Act specified in §
1 denote the objective to be sought by the Administrator in fixing
prices -- the prevention of inflation and its enumerated
consequences. The standards set out in § 2 define the boundaries
within which prices having that purpose must be fixed. It is enough
to satisfy the statutory requirements that the Administrator finds
that the prices fixed will tend to achieve that objective and will
conform to those standards, and that the courts, in an appropriate
proceeding, can see that substantial basis for those findings is
not wanting.

															The Act is thus an exercise by Congress of its legislative
power. In it, Congress has stated the legislative objective, has
prescribed the method of achieving that objective -- maximum
price-fixing -- and has laid down standards to guide the
administrative determination of both the occasions for the exercise
of the price-fixing power, and the particular prices to be
established. Compare Field v. Clark, 143 U.
S. 649 ; Hampton & Co. v. United
States , 276 Page 321 U. S. 424 U.S. 394; Currin v. Wallace, 306 U. S.
1 ; Mulford v. Smith, 307 U. S.
38 ; United States v. Rock Royal Co-op., 307 U. S. 533 ; Sunshine Anthracite Coal Co. v. Adkins, 310 U.
S. 381 ; Opp Cotton Mills v. Administrator, 312 U. S. 126 ; National Broadcasting Co. v. United States, 319 U.
S. 190 ; Hirabayashi v. United States, 320 U. S. 81 .

															The Act is unlike the National Industrial Recovery Act of June
16, 1933, 48 Stat. 195, considered in Schechter Corp. v. United
States, 295 U. S. 495 ,
which proclaimed in the broadest terms its purpose "to rehabilitate
industry and to conserve natural resources." It prescribed no
method of attaining that end save by the establishment of codes of
fair competition, the nature of whose permissible provisions was
left undefined. It provided no standards to which those codes were
to conform. The function of formulating the codes was delegated not
to a public official responsible to Congress or the Executive, but
to private individuals engaged in the industries to be regulated. Compare Sunshine Coal Co. v. Adkins, supra, 310 U. S.
399 .

															The Constitution, as a continuously operative charter of
government, does not demand the impossible or the impracticable. It
does not require that Congress find for itself every fact upon
which it desires to base legislative action, or that it make for
itself detailed determinations which it has declared to be
prerequisite to the application of the legislative policy to
particular facts and circumstances impossible for Congress itself
properly to investigate. The essentials of the legislative function
are the determination of the legislative policy and its formulation
and promulgation as a defined and binding rule of conduct -- here,
the rule, with penal sanctions, that prices shall not be greater
than those fixed by maximum price regulations which conform to
standards and will tend to further the policy which Congress has
established. These essentials are preserved when Congress has
specified the basic conditions of fact upon whose existence or
occurrence, Page 321 U. S. 425 ascertained from relevant data by a designated administrative
agency, it directs that its statutory command shall be effective.
It is no objection that the determination of facts and the
inferences to be drawn from them in the light of the statutory
standards and declaration of policy call for the exercise of
judgment, and for the formulation of subsidiary administrative
policy within the prescribed statutory framework. See Opp
Cotton Mills v. Administrator, supra, 312 U. S.
145 -146, and cases cited.

															Nor does the doctrine of separation of powers deny to Congress
power to direct that an administrative officer properly designated
for that purpose have ample latitude within which he is to
ascertain the conditions which Congress has made prerequisite to
the operation of its legislative command. Acting within its
constitutional power to fix prices, it is for Congress to say
whether the data on the basis of which prices are to be fixed are
to be confined within a narrow or a broad range. In either case,
the only concern of courts is to ascertain whether the will of
Congress has been obeyed. This depends not upon the breadth of the
definition of the facts or conditions which the administrative
officer is to find, but upon the determination whether the
definition sufficiently marks the field within which the
Administrator is to act so that it may be known whether he has kept
within it in compliance with the legislative will.

															As we have said,

															"The Constitution has never been regarded as denying to the
Congress the necessary resources of flexibility and practicality .
. . to perform its function." Currin v. Wallace, supra, 306 U. S. 15 .
Hence, it is irrelevant that Congress might itself have prescribed
the maximum prices or have provided a more rigid standard by which
they are to be fixed; for example, that all prices should be frozen
at the levels obtaining during a certain period or on a certain
date. See Union Bridge Co. v. United States, 204 U.
S. 364 , 204 U. S. 386 .
Congress is not confined Page 321 U. S. 426 to that method of executing its policy which involves the least
possible delegation of discretion to administrative officers. Compare 17 U. S. Maryland, 4 Wheat. 316, 17 U. S. 413 et seq. It is free to avoid the rigidity of such a system,
which might well result in serious hardship, and to choose instead
the flexibility attainable by the use of less restrictive
standards. Cf. Hampton & Co. v. United States, supra, 276 U. S. 408 , 276 U. S. 409 .
Only if we could say that there is an absence of standards for the
guidance of the Administrator's action, so that it would be
impossible in a proper proceeding to ascertain whether the will of
Congress has been obeyed, would we be justified in overriding its
choice of means for effecting its declared purpose of preventing
inflation.

															The standards prescribed by the present Act, with the aid of the
"statement of considerations" required to be made by the
Administrator, are sufficiently definite and precise to enable
Congress, the courts and the public to ascertain whether the
Administrator, in fixing the designated prices, has conformed to
those standards. Compare Hirabayashi v. United States,
supra, 320 U. S. 104 .
Hence, we are unable to find in them an unauthorized delegation of
legislative power. The authority to fix prices only when prices
have risen or threaten to rise to an extent or in a manner
inconsistent with the purpose of the Act to prevent inflation is no
broader than the authority to fix maximum prices when deemed
necessary to protect consumers against unreasonably high prices,
sustained in Sunshine Anthracite Coal Co. v. Adkins,
supra, or the authority to take possession of and operate
telegraph lines whenever deemed necessary for the national security
or defense, upheld in Dakota Central Tel. Co. v. South
Dakota, 250 U. S. 163 ; or
the authority to suspend tariff provisions upon findings that the
duties imposed by a foreign state are "reciprocally unequal and
unreasonable," held valid in Field v. Clark, supra. Page 321 U. S. 427 The directions that the prices fixed shall be fair and
equitable, that, in addition, they shall tend to promote the
purposes of the Act, and that, in promulgating them, consideration
shall be given to prices prevailing in a stated base period, confer
no greater reach for administrative determination than the power to
fix just and reasonable rates, see Sunshine Coal Co. v. Adkins,
supra, and cases cited; or the power to approve consolidations
in the "public interest," sustained in New York Central
Securities Corp. v. United States, 287 U. S.
12 , 287 U. S. 24 -25
( compare United States v. Lowden, 308 U.
S. 225 ); or the power to regulate radio stations engaged
in chain broadcasting "as public interest, convenience or necessity
requires," upheld in National Broadcasting Co. v. United
States, supra, 319 U. S.
225 -226; or the power to prohibit "unfair methods of
competition" not defined or forbidden by the common law, Federal Trade Commission v. Keppel & Bro., 291 U. S. 304 ; or
the direction that, in allotting marketing quotas among states and
producers, due consideration be given to a variety of economic
factors, sustained in Mulford v. Smith, supra, 307 U. S. 49 ; or
the similar direction that, in adjusting tariffs to meet
differences in costs of production, the President "take into
consideration" "insofar as he finds it practicable" a variety of
economic matters, sustained in Hampton & Co. v. United
States, supra; or the similar authority, in making
classifications within an industry, to consider various named and
unnamed "relevant factors" and determine the respective weights
attributable to each, held valid in Opp Cotton Mills v.
Administrator, supra. II We consider next the question whether the procedure which
Congress has established for determining the validity of the
Administrator's regulations is exclusive, so as to preclude the
defense of invalidity of the Regulation in this criminal
prosecution for its violation under §§ 4(a) and Page 321 U. S. 428 205(b). Section 203(a) sets up a procedure by which "any person
subject to any provision of a regulation or order" may, within
sixty days after it is issued, "file a protest specifically setting
forth objections to any such provision and affidavits or other
written evidence in support of such objections." He may similarly
protest later, on grounds arising after the expiration of the
original sixty days. The subsection directs that, within a
reasonable time and in no event more than thirty days after the
filing of a protest or ninety days after the issue of the
regulation protested, whichever is later,

															"the Administrator shall either grant or deny such protest in
whole or in part, notice such protest for hearing, or provide an
opportunity to present further evidence in connection therewith. In
the event that the Administrator denies any such protest in whole
or in part, he shall inform the protestant of the grounds upon
which such decision is based, and of any economic data and other
facts of which the Administrator has taken official notice."

															Section 204(c) creates a court to be known as the Emergency
Court of Appeals consisting of United States district or circuit
judges designated by the Chief Justice of the United States.
Section 204(a) authorizes any person aggrieved by the denial or
partial denial of his protest to file a complaint with the
Emergency Court of Appeals within thirty days after the denial,
praying that the regulation, order or price schedule protested be
enjoined or set aside in whole or in part. The court may issue such
an injunction only if it finds that the regulation, order or price
schedule "is not in accordance with law, or is arbitrary or
capricious." (Subsection (b).) It is denied power to issue a
temporary restraining order or interlocutory decree. (Subsection
(c).) The effectiveness of any permanent injunction it may issue is
postponed for thirty days, and, if review by this Court is sought
upon writ of certiorari, as authorized by subsection (d), its
effectiveness is further Page 321 U. S. 429 postponed until final disposition of the case by this Court by
denial of certiorari or decision upon the merits. (Subsection
(b).)

															Section 204(d) declares:

															"The Emergency Court of Appeals, and the Supreme Court upon
review of judgments and orders of the Emergency Court of Appeals,
shall have exclusive jurisdiction to determine the validity of any
regulation or order issued under section 2, of any price schedule
effective in accordance with the provisions of section 206, and of
any provision of any such regulation, order, or price schedule.
Except as provided in this section, no court, Federal, State, or
Territorial, shall have jurisdiction or power to consider the
validity of any such regulation, order, or price schedule, or to
stay, restrain, enjoin, or set aside, in whole or in part, any
provision of this Act authorizing the issuance of such regulations
or orders, or making effective any such price schedule, or any
provision of any such regulation, order, or price schedule, or to
restrain or enjoin the enforcement of any such provision."

															In Lockerty v. Phillips, supra, we held that these
provisions conferred on the Emergency Court of Appeals, subject to
review by this Court, exclusive equity jurisdiction to restrain
enforcement of price regulations of the Administrator and that they
withdrew such jurisdiction from all other courts. This was
accomplished by the exercise of the constitutional power of
Congress to prescribe the jurisdiction of inferior federal courts,
and the jurisdiction of all state courts to determine federal
questions, and to vest that jurisdiction in a single court, the
Emergency Court of Appeals.

															The considerations which led us to that conclusion with respect
to the equity jurisdiction of the district court, lead to the like
conclusion as to its power to consider the validity of a price
regulation as a defense to a criminal prosecution for its
violation. The provisions of § 204(d), conferring Page 321 U. S. 430 upon the Emergency Court of Appeals and this Court "exclusive
jurisdiction to determine the validity of any regulation or order,"
coupled with the provision that "no court, Federal, State or
Territorial, shall have jurisdiction or power to consider the
validity of any such regulation," are broad enough in terms to
deprive the district court of power to consider the validity of the
Administrator's regulation or order as a defense to a criminal
prosecution for its violation.

															That such was the intention of Congress appears from the report
of the Senate Committee on Banking and Currency, recommending the
adoption of the bill which contained the provisions of § 204(d).
After pointing out that the bill provided for exclusive
jurisdiction of the Emergency Court and the Supreme Court to
determine the validity of regulations or orders issued under § 2,
the Committee said:

															"The courts in which criminal or civil enforcement proceedings
are brought have jurisdiction, concurrently with the Emergency
Court, to determine the constitutional validity of the statute
itself."

															Sen.Rep. 931, 77th Cong., 2d Sess., p. 25. That the Committee,
in making this statement, intended to distinguish between the
validity of the statute and that of a regulation, and to permit
consideration only of the former in defense to a criminal
prosecution, is further borne out by the fact that the bill as
introduced in the House had provided that the Emergency Court of
Appeals should have exclusive jurisdiction to determine the
validity of the provisions of the Act authorizing price
regulations, as well as of the regulations themselves. H.R. 5479,
77th Cong., 1st Sess., printed in Hearings before Committee on
Banking and Currency, House of Representatives, 77th Cong., 2d
Sess., on H.R. 5479, pp. 4, 7-8.

															Congress, in thus authorizing consideration by the district
court of the validity of the Act alone, gave clear indication that
the validity of the Administrator's regulations Page 321 U. S. 431 or orders should not be subject to attack in criminal
prosecutions for their violation, at least before their invalidity
had been adjudicated by recourse to the protest procedure
prescribed by the statute. Such, we conclude, is the correct
construction of the Act. III We come to the question whether the provisions of the Act, so
construed as to deprive petitioners of opportunity to attack the
Regulation in a prosecution for its violation, deprive them of the
due process of law guaranteed by the Fifth Amendment. At the trial,
petitioners offered to prove that the Regulation would compel them
to sell beef at such prices as would render it impossible for
wholesalers such as they are, no matter how efficient, to conduct
their business other than at a loss. Section 4(d) declares that
"Nothing in this Act shall be construed to require any person to
sell any commodity . . ." Petitioners were therefore not required
by the Act, nor, so far as appears, by any other rule of law, to
continue selling meat at wholesale if they could not do so without
loss. But they argue that to impose on them the choice either of
refraining from sales of beef at wholesale or of running the risk
of numerous criminal prosecutions and suits for treble damages
authorized by § 205(e), without the benefit of any temporary
injunction or stay pending determination by the prescribed
statutory procedure of the Regulation's validity, is so harsh in
its application to them as to deny them due process of law. In
addition, they urge the inadequacy of the administrative procedure,
and particularly of the sixty days' period afforded by the Act
within which to prepare and lodge a protest with the
Administrator.

															In considering these asserted hardships, it is appropriate to
take into account the purposes of the Act and the circumstances
attending its enactment and application as a wartime emergency
measure. The Act was adopted January Page 321 U. S. 432 30, 1942, shortly after our declaration of war against Germany
and Japan, when it was common knowledge, as is emphasized by the
legislative history of the Act, that there was grave danger of
wartime inflation and the disorganization of our economy from
excessive price rises. Congress was under pressing necessity of
meeting this danger by a practicable and expeditious means which
would operate with such promptness, regularity and consistency as
would minimize the sudden development of commodity price
disparities, accentuated by commodity shortages occasioned by the
war.

															Inflation is accelerated and its consequences aggravated by
price disparities not based on geographic or other relevant
differentials. The harm resulting from delayed or unequal price
control is beyond repair. And one of the problems involved in the
prevention of inflation by establishment of a nationwide system of
price control is the disorganization which would result if
enforcement of price orders were delayed or sporadic, or were
unequal or conflicting in different parts of the country. These
evils might well arise if regulations with respect to which there
was full opportunity for administrative revision were to be made
ineffective by injunction or stay of their enforcement in advance
of such revision or of final determination of their validity.

															Congress, in enacting the Emergency Price Control Act, was
familiar with the consistent history of delay in utility rate
cases. It had in mind the dangers to price control as a preventive
of inflation if the validity and effectiveness of prescribed
maximum prices were to be subject to the exigencies and delays of
litigation originating in eighty-five district courts and continued
by separate appeals through eleven separate courts of appeals to
this Court, to say nothing of litigation conducted in state courts. See Sen.Rep. No. 931, 77th Cong., 2d Sess., pp. 23-25. Page 321 U. S. 433 Congress sought to avoid or minimize these difficulties by the
establishment of a single procedure for review of the
Administrator's regulations, beginning with an appeal to the
Administrator's specialized knowledge and experience gained in the
administration of the Act, and affording to him an opportunity to
modify the regulations and orders complained of before resort to
judicial determination of their validity. The organization of such
an exclusive procedure especially adapted to the exigencies and
requirements of a nationwide scheme of price regulation is, as we
have seen, within the constitutional power of Congress to create
inferior federal courts and prescribe their jurisdiction. The
considerations which led to its creation are similar to, and
certainly no weaker than, those which led this Court, in Texas
& Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U.
S. 426 , and the long line of cases following it, to
require resort to the Interstate Commerce Commission and the
special statutory method provided for review of its decisions in
certain types of cases involving railway rates. As with the present
statute, it was thought desirable to preface all judicial action by
resort to expert administrative knowledge and experience, and thus
minimize the confusion that would result from inconsistent
decisions of district and circuit courts rendered without the aid
of an administrative interpretation. In addition, the present Act
seeks further to avoid that confusion by restricting judicial
review of the administrative determination to a single court. Such
a procedure, so long as it affords to those affected a reasonable
opportunity to be heard and present evidence, does not offend
against due process. Bradley v. Richmond, 227 U.
S. 477 ; First National Bank v. Weld County, 264 U. S. 450 ; Anniston Mfg. Co. v. Davis, 301 U.
S. 337 .

															Petitioners assert that they have been denied that opportunity
because the sixty days' period allowed for filling a protest is
insufficient for that purpose; because the procedure Page 321 U. S. 434 before the Administrator is inadequate to ensure due process;
because the statute precludes any interlocutory injunction staying
enforcement of a price regulation before final adjudication of its
validity; because the trial of the issue of validity of a
regulation is excluded from the criminal trial for its violation,
and because, in any case, there is nothing in the statute to
prevent their conviction for violation of a regulation before they
could secure a ruling on its validity. A sufficient answer to all
these contentions is that petitioners have failed to seek the
administrative remedy and the statutory review which were open to
them, and that they have not shown that, had they done so, any of
the consequences which they apprehend would have ensued to any
extent whatever, or, if they should, that the statute withholds
judicial remedies adequate to protect petitioners' rights.

															For the purposes of this case, in passing upon the sufficiency
of the procedure on protest to the Administrator and complaint to
the Emergency Court, it is irrelevant to suggest that the
Administrator or the Court has in the past or may in the future
deny due process. Action taken by them is reviewable in this Court,
and, if contrary to due process, will be corrected here. Hence, we
have no occasion to pass upon determinations of the Administrator
or the Emergency Court, said to violate due process, which have
never been brought here for review, and obviously we cannot pass
upon action which might have been taken on a protest by
petitioners, who have never made a protest or in any way sought the
remedy Congress has provided. In the absence of any proceeding
before the Administrator, we cannot assume that he would fail in
the performance of any duty imposed on him by the Constitution and
laws of the United States, or that he would deny due process to
petitioners by "loading the record against them" or denying such
hearing as the Constitution prescribes. Plymouth Coal Co. v.
Pennsylvania, 232 U. S. 531 , 232 U. S. 545 ; Hall Page 321 U. S. 435 v. Geiger-Jones Co., 242 U. S. 539 , 242 U. S. 554 ; Minnesota v. Probate Court, 309 U.
S. 270 , 309 U. S. 277 , and
cases cited. Only if we could say in advance of resort to the
statutory procedure that it is incapable of affording due process
to petitioners could we conclude that they have shown any legal
excuse for their failure to resort to it or that their
constitutional rights have been or will be infringed. Natural
Gas Co. v. Slattery, 302 U. S. 300 , 302 U. S. 309 ; Anniston Mfg. Co. v. Davis, supra, 301 U. S.
356 -357; Minnesota v. Probate Court, supra, 309 U. S. 275 , 309 U. S. 277 .
But, upon a full examination of the provisions of the statute, it
is evident that the authorized procedure is not incapable of
affording the protection to petitioners' rights required by due
process.

															The regulations, which are given the force of law, are published
in the Federal Register, and constructive notice of their contents
is thus given all persons affected by them. 44 U.S.C. § 307. The
penal provisions of the statute are applicable only to violations
of a regulation which are willful. Petitioners have not contended
that they were unaware of the Regulation, and the jury found that
they knowingly violated it within eight days after its issue.

															The sixty days' period allowed for protest of the
Administrator's regulations cannot be said to be unreasonably short
in view of the urgency and exigencies of wartime price regulation.
[ Footnote 3 ] Here, the
Administrator is required to act initially upon the protest within
thirty days after it is filed or ninety days after promulgation of
the challenged regulation, by allowing the protest wholly or in
part, or denying it or setting it down for hearing. (§ 203(a).) Page 321 U. S. 436 But we cannot say that the Administrator would not have allowed
ample time for the presentation of evidence. [ Footnote 4 ] And, under § 204(a), petitioners could
have applied to the Emergency Court of Appeals for leave to
introduce any additional evidence "which could not reasonably" have
been offered to the Administrator or included in the proceedings
before him, and could have applied to the Administrator to modify
or change his decision in the light of that evidence.

															Nor can we say that the administrative hearing provided by the
statute will prove inadequate. We hold in Bowles v. Willingham,
post, p. 321 U. S. 503 ,
that, in the circumstances to which this Act was intended to apply,
the failure to afford a hearing prior to the issue of a price
regulation does not offend against due process. While the hearing
on a protest may be restricted to the presentation of documentary
evidence, affidavits and briefs, the Act contemplates, and the
Administrator's regulations provide for, a full oral hearing upon a
showing that written evidence and briefs "will not permit the fair
and expeditious disposition of the protest." (§ 203(a); Revised
Procedural Regulation No. 1, § 1300.39, 7 Fed.Reg. 891.) In advance
of application to the Administrator for such a hearing, we cannot
well say whether its denial in any particular case would be a
denial of due process. The Act requires the Administrator to inform
the protestant of the grounds for his decision denying a protest,
including all matters of which he has taken official notice. (§
203(a).) In view of the provisions for the introduction of further
evidence both before and after the Administrator has announced his
determination, we cannot say that, if petitioners had filed a
protest adequate Page 321 U. S. 437 opportunity would not have been afforded them to meet any
arguments and evidence put forward by the Administrator, or that,
if such opportunity had been denied, the denial would not have been
corrected by the Emergency Court.

															The Emergency Court has power to review all questions of law,
including the question whether the Administrator's determination is
supported by evidence, and any question of the denial of due
process or any procedural error appropriately raised in the course
of the proceedings. No reason is advanced why petitioners could
not, throughout the statutory proceeding, raise and preserve any
due process objection to the statute, the regulations, or the
procedure, and secure its full judicial review by the Emergency
Court of Appeals and this Court. Compare White v. Johnson, 282 U. S. 367 , 282 U. S. 374 .
[ Footnote 5 ]

															In the circumstances of this case, we find no denial of due
process in the statutory prohibition of a temporary stay or
injunction. The present statute is not open to the objection that
petitioners are compelled to serve the public as in the case of a
public utility, or that the only method by which they can test the
validity of the regulations Page 321 U. S. 438 promulgated under it is by violating the statute and thus
subjecting themselves to the possible imposition of severe and
cumulative penalties. See Ex parte Young, 209 U.
S. 123 ; Willcox v. Consolidated Gas Co., 212 U. S. 19 , 212 U. S. 53 ; Missouri Pacific Ry. Co. v. Tucker, 230 U.
S. 340 ; Oklahoma Operating Co. v. Love, 252 U. S. 331 . For
as we have seen, § 4(d) specifically provides that no one shall be
compelled to sell any commodity, and the statute itself provides an
expeditious means of testing the validity of any price regulation,
without necessarily incurring any of the penalties of the Act. Compare Wadley Southern Ry. Co. v. Georgia, 235 U.
S. 651 , 235 U. S.
667 -669.

															The petitioners are not confronted with the choice of abandoning
their businesses or subjecting themselves to the penalties of the
Act before they have sought and secured a determination of the
Regulation's validity. It is true that, if the Administrator denies
a protest no stay or injunction may become effective before the
final decision of the Emergency Court or of this Court if review
here is sought. It is also true that the process of reaching a
final decision may be time-consuming. But while courts have no
power to suspend or ameliorate the operation of a regulation during
the pendency of proceedings to determine its validity, we cannot
say that the Administrator has no such power or assume that he
would not exercise it in an appropriate case.

															The Administrator, who is the author of the regulations, is
given wide discretion as to the time and conditions of their issue
and continued effect. Section 2(a) authorizes him to issue such
regulations as will effectuate the purposes of the Act, whenever,
in his judgment, such action is necessary. Section 201(d) similarly
authorizes him "from time to time" to issue regulations when
necessary and proper to effectuate the purposes of the Act. One of
the objects of the protest provisions is to enable the
Administrator more fully to inform himself as to the wisdom Page 321 U. S. 439 of a regulation through evidence of its effect on particular
cases. In the light of that information, he is authorized by 203(a)
to grant or deny a protest "in whole or in part." And § 204(a)
authorizes the Administrator to modify or rescind a regulation "at
any time." [ Footnote 6 ]
Moreover, 2(a) further authorizes the issue, in the Administrator's
judgment, of temporary regulations, effective for sixty days,

															"establishing as a maximum . . . the price . . . prevailing with
respect to any commodity . . . within five days prior to the date
of issuance of such temporary regulations. . . ."

															Under these sections, the Administrator may not only alter or
set aside the regulation, but he has wide scope for the exercise of
his discretionary power to modify or suspend a regulation pending
its administrative and judicial review. Hence, we cannot assume
that petitioners, had they applied to the Administrator, would not
have secured all the relief to which they were entitled. The denial
of a right to a restraining order or interlocutory injunction to
one who has failed to apply for available administrative relief,
not shown to be inadequate, is not a denial of due process. Natural Gas Co. v. Slattery, supra, 302 U. S.
310 .

															In any event, we are unable to say that the denial of
interlocutory relief pending a judicial determination of the
validity of the regulation would, in the special circumstances of
this case, involve a denial of constitutional right. If the
alternatives, as Congress could have concluded, were wartime
inflation or the imposition on individuals of the burden of
complying with a price regulation while its validity is being
determined, Congress could constitutionally make the choice in
favor of the protection of the public interest from the dangers of
inflation. Compare Page 321 U. S. 440 Miller v. Schone, 276 U. S. 272 , in
which we held that the Fourteenth Amendment did not preclude a
state from compelling the uncompensated destruction of private
property in order to preserve important public interests from
destruction.

															The award of an interlocutory injunction by courts of equity has
never been regarded as strictly a matter of right, even though
irreparable injury may otherwise result to the plaintiff. Compare Scripps-Howard Radio v. Federal Communications
Comm'n, 316 U. S. 4 , 316 U. S. 10 , and
cases cited. Even in suits in which only private interests are
involved, the award is a matter of sound judicial discretion, in
the exercise of which the court balances the conveniences of the
parties and possible injuries to them according as they may be
affected by the granting or withholding of the injunction. Meccano, Ltd. v. John Wanamaker, 253 U.
S. 136 , 253 U. S. 141 ; Rice & Adams Corp. v. Lathrop, 278 U.
S. 509 , 278 U. S. 514 .
And it will avoid such inconvenience and injury, so far as may be,
by attaching conditions to the award, such as the requirement of an
injunction bond conditioned upon payment of any damage caused by
the injunction if the plaintiff's contentions are not sustained. Prendrgast v. New York Telephone Co., 262 U. S.
43 , 262 U. S. 51 ; Ohio Oil Co. v.Conway, 279 U. S. 813 , 279 U. S.
815 .

															But where an injunction is asked which will adversely affect a
public interest for whose impairment, even temporarily, an
injunction bond cannot compensate, the court may, in the public
interest, withhold relief until a final determination of the rights
of the parties, though the postponement may be burdensome to the
plaintiff. [ Footnote 7 ] Virginian Page 321 U. S. 441 Ry. Co. v. United States, 272 U.
S. 658 , 272 U. S.
672 -673; Petroleum Exploration Co. v. Public Service
Comm'n, 304 U. S. 209 , 304 U. S.
222 -223; Dryfoos v. Edwards, 284 F. 596, 603, affirmed, 251 U. S. 251 U.S.
146; see Beaumont, S. L. & W. Ry. Co. v. United
States, 282 U. S. 74 , 282 U. S. 91 , 282 U. S. 92 . Compare Wisconsin v. Illinois, 278 U.
S. 367 , 278 U. S.
418 -421. This is but another application of the
principle, declared in Virginian Ry. Co. v. System
Federation, 300 U. S. 515 , 300 U. S. 552 ,
that

															"Courts of equity may, and frequently do, go much further both
to give and withhold relief in furtherance of the public interest
than they are accustomed to go when only private interests are
involved."

															Here, in the exercise of the power to protect the national
economy from the disruptive influences of inflation in time of war,
Congress has seen fit to postpone injunctions restraining the
operations of price regulations until their lawfulness could be
ascertained by an appropriate and expeditious procedure. In so
doing, it has done only what a court of equity could have done in
the exercise of its discretion to protect the public interest. What
the courts Page 321 U. S. 442 could do, Congress can do as the guardian of the public interest
of the nation in time of war. The legislative formulation of what
would otherwise be a rule of judicial discretion is not a denial of
due process or a usurpation of judicial functions. Cf. Demorest
v. City Bank Co., 321 U. S. 36 .
[ Footnote 8 ]

															Our decisions leave no doubt that, when justified by compelling
public interest, the legislature may authorize summary action
subject to later judicial review of its validity. It may insist on
the immediate collection of taxes. Phillips v.
Commissioner, 283 U. S. 589 , 283 U. S.
595 -597 and cases cited. It may take possession of
property presumptively abandoned by its owner, prior to
determination of Page 321 U. S. 443 its actual abandonment. Anderson National Bank v.
Luckett, 321 U. S. 233 . For
the protection of public health, it may order the summary
destruction of property without prior notice or hearing. North
American Cold Storage Co. v. Chicago, 211 U.
S. 306 ; Adams v. Milwaukee, 228 U.
S. 572 , 228 U. S. 584 .
It may summarily requisition property immediately needed for the
prosecution of the war. Compare United States v. Pfitsch, 256 U. S. 547 . As
a measure of public protection, the property of alien enemies may
be seized, and property believed to be owned by enemies taken
without prior determination of its true ownership. Central
Union Trust Co. v. Garvan, 254 U. S. 554 , 254 U. S. 566 ; Stoehr v. Wallace, 255 U. S. 239 , 255 U. S. 245 .
Similarly, public necessity in time of war may justify allowing
tenants to remain in in possession against the will of the
landlord. Block v. Hirsh, 256 U.
S. 135 ; Marcus Brown Co. v. Feldman, 256 U. S. 170 .
Even the personal liberty of the citizen may be temporarily
restrained as a measure of public safety. Hirabayashi v. United
States, supra; cf. Jacobson v. Massachusetts, 197 U. S.
11 . Measured by these standards, we find no denial of
due process under the circumstances in which this Act was adopted
and must be applied, in its denial of any judicial stay pending
determination of a regulation's validity. IV As we have seen, Congress, through its power to define the
jurisdiction of inferior federal courts and to create such courts
for the exercise of the judicial power, could, subject to other
constitutional limitations, create the Emergency Court of Appeals,
give to it exclusive equity jurisdiction to determine the validity
of price regulations prescribed by the Administrator, and foreclose
any further or other consideration of the validity of a regulation
as a defense to a prosecution for its violation. Page 321 U. S. 444 Unlike most penal statutes and regulations, whose validity can
be determined only by running the risk of violation, see
Douglas v. City of Jeannette, 319 U.
S. 157 , 319 U. S. 163 ,
the present statute provides a mode of testing the validity of a
regulation by an independent administrative proceeding. There is no
constitutional requirement that that test be made in one tribunal,
rather than in another, so long as there is an opportunity to be
heard and for judicial review which satisfies the demands of due
process, as is the case here. This was recognized in Bradley v.
Richmond, supra, and in Wadley Southern Ry. Co. v.
Georgia, supra, 235 U. S. 667 , 235 U. S. 669 , and
has never been doubted by this Court. And we are pointed to no
principle of law or provision of the Constitution which precludes
Congress from making criminal the violation of an administrative
regulation, by one who has failed to avail himself of an adequate
separate procedure for the adjudication of its validity, or which
precludes the practice, in many ways desirable, of splitting the
trial for violations of an administrative regulation by committing
the determination of the issue of its validity to the agency which
created it, and the issue of violation to a court which is given
jurisdiction to punish violations. Such a requirement presents no
novel constitutional issue.

															No procedural principle is more familiar to this Court than that
a constitutional right may be forfeited in criminal, as well as
civil, cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it. O'Neil
v. Vermont, 144 U. S. 323 , 144 U. S. 331 ; Barbour v. Georgia, 249 U. S. 454 , 249 U. S. 460 ; Whitney v. California, 274 U. S. 357 , 274 U. S. 360 , 274 U. S. 362 , 274 U. S. 380 .
Courts may, for that reason, refuse to consider a constitutional
objection even though a like objection had previously been
sustained in a case in which it was properly taken. Seaboard
Air Line Ry. Co. v. Watson, 287 U. S. 86 . While
this Court, in its Page 321 U. S. 445 discretion, sometimes departs from this rule in cases from lower
federal courts, it invariably adheres to it in cases from state
courts, see Brandeis, J. concurring in Whitney v.
California, supra, 274 U. S. 380 , and
it could hardly be maintained that it is beyond legislative power
to make the rule inflexible in all cases. Compare Woolsey v.
Best, 299 U. S. 1 , with Ex parte Siebold, 100 U. S. 371 .

															For more than fifty years, it has been a penal offense for
shippers and interstate rail carriers to fail to observe the duly
filed tariffs fixing freight rates -- including, since 1906, rates
prescribed by the Commission -- even though the validity of those
rates is open to attack only in a separate administrative
proceeding before the Interstate Commerce Commission. 49 U.S.C. §§
6(7), 10(1); Armour Packing Co. v. United States, 209 U. S. 56 , 209 U. S. 81 ; United States v. Adams Express Co., 229 U.
S. 381 , 229 U. S. 388 .
It is no defense to a prosecution for departure from a rate fixed
by the filed tariffs that the rate is unreasonable or otherwise
unlawful where its infirmity has not first been established by an
independent proceeding before the Interstate Commerce Commission,
and the denial of the defense in such a case does not violate any
provision of the Constitution. United States v. Vacuum Oil
Co., 158 F. 536, 539-541; Lehigh Valley R. Co. v. United
States, 188 F. 879, 887-888. See also United States v.
Standard Oil Co., 155 F. 305, 309-310, reversed on other
grounds, 164 F. 376. Compare Pennsylvania R. Co. v.
International Coal Co., 230 U. S. 184 , 230 U. S.
196 -197; Arizona Grocery Co. v. Atchison, T. &
S.F. Ry. Co., 284 U. S. 370 , 24 U. S. 384 .
Similarly, it has been held that one who has failed to avail
himself of the statutory method of review of orders of the
Secretary of Agriculture under the Packers and Stockyards Act of
1921, or of the Federal Radio Commission under the Radio Act of
1927, cannot enjoin threatened prosecutions for violation of those
orders, United States v. Corrick, 298 U.
S. 435 , 298 U. S.
440 ; Page 321 U. S. 446 White v. Johnson, supra, 282 U. S.
373 -374. See also Natural Gas Co. v. Slattery,
supra, 302 U. S.
309 -310. [ Footnote
9 ]

															The analogy of such a procedure to the present, by which
violation of a price regulation is made penal, unless the offender
has established its unlawfulness by an independent statutory
proceeding, is complete and obvious. As we have pointed out, such a
requirement is objectionable only if, by statutory command or in
operation, it will deny to those charged with violations an
adequate opportunity to be heard on the question of validity. And,
as we have seen, petitioners fail to show that such is the
necessary effect of the present statute, or that, if so applied as
to deprive them of an adequate opportunity to establish the
invalidity of a regulation, there would not be adequate means of
securing appropriate judicial relief in the course either of the
statutory proceeding or of the criminal trial. During the present
term of court, we have held that one charged with criminal
violations of an order of his draft board may not challenge the
validity of the order if he has failed to pursue to completion the
exclusive administrative remedies provided by the Selective
Training and Service Act of 1940. Falbo v. United States, 320 U. S. 549 , and see Bowles v. United States, 319 U. S.
33 . We perceive no tenable ground for distinguishing
that case from this.

															We have no occasion to decide whether one charged with criminal
violation of a duly promulgated price regulation Page 321 U. S. 447 may defend on the ground that the regulation is unconstitutional
on its face. Nor do we consider whether one who is forced to trial
and convicted of violation of a regulation, while diligently
seeking determination of its validity by the statutory procedure,
may thus be deprived of the defense that the regulation is invalid.
There is no contention that the present regulation is void on its
face, petitioners have taken no step to challenge its validity by
the procedure which was open to them, and it does not appear that
they have been deprived of the opportunity to do so. Even though
the statute should be deemed to require it, any ruling at the
criminal trial which would preclude the accused from showing that
he had had no opportunity to establish the invalidity of the
regulation by resort to the statutory procedure would be reviewable
on appeal on constitutional grounds. It will be time enough to
decide questions not involved in this case when they are brought to
us for decision, as they may be, whether they arise in the
Emergency Court of Appeals or in the district court upon a criminal
trial.

															In the exercise of the equity jurisdiction of the Emergency
Court of Appeals to test the validity of a price regulation, a jury
trial is not mandatory under the Seventh Amendment. Cf. Block
v. Hirsh, supra, 256 U. S. 158 .
Nor has there been any denial in the present criminal proceeding of
the right, guaranteed by the Sixth Amendment, to a trial by a jury
of the state and district where the crime was committed. Subject to
the requirements of due process, which are here satisfied, Congress
could make criminal the violation of a price regulation. The
indictment charged a violation of the regulation in the district of
trial, and the question whether petitioners had committed the crime
thus charged in the indictment and defined by Congress, namely,
whether they had violated the statute by willful disobedience of a
price regulation promulgated by the Page 321 U. S. 448 Administrator, was properly submitted to the jury. Cf. Falbo
v. United States, supra. Affirmed. * Together with No. 375, Rottenberg et al. v. United
States, also on writ of certiorari to the Circuit Court of
Appeals for the First Circuit.

															[ Footnote 1 ]

															The parties have not discussed in briefs or on argument, and we
do not find it necessary to consider, the precise effect of this
direction to stabilize prices "so far as practicable" at the levels
obtaining on September 15, 192, upon the standards laid down by §
2(a) of the Act and the discretion which they confer on the
Administrator.

															[ Footnote 2 ]

															The use of the March 16-28, 1942, base period is explained by
the fact that wholesale meat prices had already been stabilized at
approximately that level by Maximum Price Regulation No. 169 as
originally issued on June 19, 1942, 7 Fed.Reg. 4653, and by the
General Maximum Price Regulation, issued April 28, 1942, 7 Fed.Reg.
3153, which forbade the sale of most commodities at prices in
excess of the highest price charged by the seller during March,
1942. The Statement of Considerations accompanying the latter, 2
C.C.H. War Law Service -- Price Control, � 42,081, explains in some
detail the considerations impelling the Administrator to the
conclusion that stabilization at the levels obtaining in March,
1942, would be fair and equitable, and would effectuate the
purposes of the Act; it considers the price levels prevailing
during October 1-15, 1941, and gives reasons why price
stabilization at those levels would not be practicable. The
Statement of Considerations accompanying Maximum Price Regulation
No. 169 as originally issued, 2 C.C.H. War Law Service -- Price
Control, � 43,369A, refers to this discussion in explanation of the
continuance of the use of March, 1942, levels as a base.

															[ Footnote 3 ]

															For numerous instances in which comparable or shorter periods
for resort to administrative relief as a prerequisite to proceeding
in the courts have been held to be sufficient, see, e.g.,
Bellingham Bay & B.C. R. Co. v. New Whatcom, 172 U.
S. 314 (10 days); Campbell v. Olney, 262 U. S. 352 (20
days); Wick v. Chelan Electric Co., 280 U.
S. 108 (18 days); Phillips v. Commissioner, 283 U. S. 589 (60
days); Opp Cotton Mills v. Administrator, 312 U.
S. 126 (40 days).

															[ Footnote 4 ]

															Revised Procedural Regulation No. 1, 7 Fed.Reg. 8961, authorized
by § 203(a), contain detailed provisions for extending the time for
presentation of evidence when appropriate. §§ 1300.30(c), 1300.33,
1300.35(a)(3).

															[ Footnote 5 ]

															Nor is the inconvenience to petitioners of being required to
make their objection to the Administrator in Washington, D.C.,
sufficient to outweigh the public interest, in the circumstances of
this case, in having a centralized, unitary scheme of review of the
regulations. The protest procedure is designed to be conducted
primarily upon documentary evidence, § 203(a); Revised Procedural
Regulation No. 1, §§ 1300.29-1300.31, 1300.39. There would thus be
no purpose in the personal presence of the protestant unless the
protest were set for hearing by the Administrator, and, in such a
case, the hearing may be held at any place designated by the
Administrator and before a person designated by him. Id., §§ 1300.39, 1300.42. The Emergency Court of Appeals is likewise
authorized to "hold sessions at such places as it may specify," and
does, in fact, hold sessions throughout the country as needed. §
204(c): Rule 4(a) of its Rules of Procedure, 50 U.S.C.App. Supp. II
following § 924.

															[ Footnote 6 ]

															Revised Procedural Regulation No. 1 authorizes the filing at an
time of a petition to amend a regulation (§ 1300.20), and
authorizes the Administrator to treat a protest as a petition for
amendment as well (§ 1300.49).

															[ Footnote 7 ]

															Congress has sought to minimize the burden so far as would be
consistent with the public interest by providing expeditious
procedure for the review, on protest and complaint, of a
regulation's validity. Thus, a protest must be filed within 60 days
(§ 203(a)); the Administrator must take initial action on it within
a reasonable time but not more than 30 days after its filing or 90
days after the issuance of the regulation (§ 203(a)); the complaint
to the Emergency Court must be filed within 30 days (§ 204(a));
that Court is directed to "prescribe rules governing its procedure
in such manner as to expedite the determination of cases of which
it has jurisdiction" (§ 204(c)); in order to promote that end, as
many judges as are needed may be designated to serve on it, it may
sit in divisions, and may hold sessions at such places as it may
specify (§ 204(c)), and, in fact, it does sit in various parts of
the country as the convenience of the parties may require; under
its rules it is "always . . . open for the transaction of
business," (Rule 4(a); 50 U.S.C.App. Supp. II following § 92);
petitions for certiorari to review its decisions must be filed
within 30 days (§ 204(d)), and this Court is directed to advance on
the docket and expedite the decision of all cases from the
Emergency Court (§ 204(d)). We cannot assume that the
Administrator, who has a vital interest in the prompt and effective
enforcement of the Act, would unreasonably delay action upon a
protest; if he should, judicial remedies are not lacking, see
Safeway Stores v. Brown, 138 F.2d 278, 280.

															[ Footnote 8 ]

															For other instances in which Congress has regulated and
restricted the power of the federal courts to grant injunctions, see: 1. Section 16 of the Judiciary Act of 1789, 1 Stat.
82, Judicial Code § 267, 28 U.S.C. § 384, denying relief in equity
where there is adequate remedy at law. 2. Section 5 of the Act of
March 2, 1793, 1 Stat. 334, Judicial Code § 265, 28 U.S.C. § 379,
prohibiting injunction of state judicial proceedings. 3. Act of
March 2, 1867, 14 Stat. 475, 26 U.S.C. § 3653, prohibiting suits to
enjoin collection or enforcement of federal taxes. 4. The Johnson
Act of May 14, 1934, 48 Stat. 775, 28 U.S.C. § 41(1), restricting
jurisdiction to enjoin orders of state bodies fixing utility rates.
5. Act of Aug. 21, 1937, 50 Stat. 738, 28 U.S.C. § 41(1), similarly
restricting jurisdiction to enjoin collection or enforcement of
state taxes. 6. Section 17 of the Act of June 18, 1910, 36 Stat.
557 and § 3 of the Act of Aug. 24, 1937, 50 Stat. 752, 28 U.S.C. §§
380 and 380(a), requiring the convening of a three-judge court for
the granting of temporary injunctions in certain cases and allowing
a temporary restraining order by one judge only to prevent
irreparable injury. 7. The Norris-LaGuardia Act, 47 Stat. 70, 29
U.S.C. §§ 101-15, regulating the issue of injunctions in labor
disputes and prohibiting their issue "contrary to the public
policy" declared in the Act. In several cases, such statutes were
held to be merely declaratory of a previously obtaining rule for
the guidance of judicial discretion. See, e.g., State Railroad
Tax Cases, 92 U. S. 575 , 92 U. S. 613 (Act of March 2, 1867); Matthews v. Rodgers, 284 U.
S. 521 , 284 U. S. 525 (Judicial Code § 267); Great Lakes Dredge Dock Co. v.
Human, 319 U. S. 293 , 319 U. S. 297 (Act of Aug. 21, 1937).

															[ Footnote 9 ] Compare the provisions of the Packers and Stockyards
Act, 7 U.S.C. §§ 194 and 195, and of the Commodity Exchange Act, 7
U.S.C. § 13(a), imposing criminal sanctions, and those of the
Federal Trade Commission Act as amended, 15 U.S.C. §§
45(g)-( l ) imposing heavy penalties, for violation of an
administrative order which has become final by its affirmance upon
the exclusive statutory method of review provided, or by the
expiration of the time allowed for review without resort to the
statutory procedure.

															MR. JUSTICE ROBERTS.

															I dissent. I find it unnecessary to discuss certain of the
questions treated in the opinion of the court. I am of opinion that
the Act unconstitutionally delegates legislative power to the
Administrator. As I read the opinion of the court, it holds the Act
valid on the ground that sufficiently precise standards are
prescribed to confine the Administrator's regulations and orders
within fixed limits, and that judicial review is provided
effectively to prohibit his transgression of those limits. I
believe that analysis demonstrates the contrary. I proceed,
therefore, to examine the statute. The Powers Conferred When, in his judgment, commodity prices have risen, or threaten
to rise, "to an extent or in a manner inconsistent with the
purposes" of the Act, the Administrator may establish "such maximum
price or maximum prices as in his judgment will be generally fair
and equitable and will effectuate the purposes" of the Act.

															"So far as practicable" in establishing any maximum price, he is
to ascertain the prices prevailing in a specified period in 1941,
but may use another period nearest to that specified because
necessary data for the period specified is not available, and may
make adjustments "for such relevant factors as he may determine and
deem to be of general applicability," including several factors
mentioned. Before issuing any regulation, he shall "so far as
practicable" advise with representative members of the industry
affected.

															Any regulation may provide for adjustments and reasonable
exceptions which, in the Administrator's judgment, Page 321 U. S. 449 are necessary and proper to effectuate the purposes of the Act.
If, in his judgment, such action is necessary or proper to
effectuate the purposes of the Act, he may, by regulation or order,
regulate or prohibit speculative or manipulative practices or
hoarding in connection with any commodity (50 U.S.C. § 902).

															It will be seen that whether, and, if so, when, the price of any
commodity [ Footnote 2/1 ] shall be
regulated depends on the judgment of the Administrator as to the
necessity or propriety of such price regulation in effectuating the
purposes of the Act. The Supposed Standards for the Administrator's
Guidance The Act provides that any regulation or order must be "generally
fair and equitable" in the Administrator's judgment; but coupled
with this injunction is another that the order and regulation must
be such as, in the judgment of the Administrator, is necessary or
proper to effectuate the purposes of the Act.

															I turn, therefore, to the stated purposes to ascertain what, if
any, limits the statute places upon the Administrator's exercise of
his powers.

															Section 1(a) (50 U.S.C. § 901(a)) states seven purposes, which
should be set forth separately as follows:

															to stabilize prices and to prevent speculative, unwarranted, and
abnormal increases in prices and rents;

															In order to exercise his power anent this purpose, the
Administrator will have to form a judgment as to what stabilization
means, and what are speculative, unwarranted and abnormal increases
in price. It hardly need be said that men may differ radically as
to the connotation of these terms, and that it would be very
difficult to convict Page 321 U. S. 450 anyone of error of judgment in so classifying a given economic
phenomenon.

															"to eliminate and prevent profiteering, hoarding, manipulation,
speculation, and other disruptive practices resulting from abnormal
market conditions or scarcities caused by or contributing to the
national emergency;"

															To accomplish this purpose, the Administrator must form a
judgment as to what constitutes profiteering, hoarding,
manipulation or speculation. As if the administrative discretion
were not sufficiently broad, there is added the phrase "other
disruptive practices," which seems to leave the Administrator at
large in the formation of opinion as to whether any practice is
disruptive.

															"to assure that defense appropriations are not dissipated by
excessive prices;"

															It is not clear -- to me, at least -- what is the limit of this
purpose. I can conceive that an honest Administrator might, without
laying himself open to the charge of exceeding his powers, make any
kind of order or regulation based upon the view that otherwise
defense appropriations by Congress might be dissipated by what he
considers excessive prices. How his exercise of judgment in
connection with this purpose could be thought excessive it is
impossible for me to say.

															"to protect persons with relatively fixed and limited incomes,
consumers, wage earners, investors, and persons dependent on life
insurance, annuities, and pensions, from undue impairment of their
standard of living;"

															The Administrator's judgment that any price policy will tend to
affect the classes mentioned in this purpose from what he may
decide to be "undue impairment of their standard of living" would
seem to be so sweeping that it would be impossible to convict him
of an error of judgment in any conclusion he might reach.

															"to prevent hardships to persons engaged in business, to
schools, universities, and other institutions, and to the Page 321 U. S. 451 Federal, State, and local governments, which would result from
abnormal increases in prices;"

															Of course, Congress might have included in the catalogue of
beneficiaries churches, hospitals, labor unions, banks and trust
companies and other praiseworthy organizations, without rendering
the "standard" any more vague.

															"to assist in securing adequate production of commodities and
facilities;"

															Here is a purpose which seems, to some extent at least, to
permit the easing of price restrictions; for it would appear that
diminishment of price would hardly assist in promoting production.
Thus, the Administrator, and he alone, is to balance two competing
policies and strike the happy mean between them. Who shall say his
conclusion is so indubitably wrong as to be properly characterized
as "arbitrary or capricious."

															"to prevent a post emergency collapse of values;"

															This purpose, or "standard," seems to permit adoption by the
Administrator of any conceivable policy. I have difficulty in
envisaging any price policy in support of which some economic data
or opinion could not be cited to show that it would tend to prevent
post emergency collapse of values.

															These seven purposes must, I submit, be considered as separate
and independent. Any action taken by the Administrator which, in
his judgment, promotes any one or more of them is within the
granted power. If, in his judgment, any action by him is necessary
or appropriate to the accomplishment of one or more of them, the
Act gives sanction to his order or regulation.

															Reflection will demonstrate that, in fact, the Act sets no
limits upon the discretion or judgment of the Administrator. His
commission is to take any action with respect to prices which he
believes will preserve what he deems a sound economy during the
emergency and prevent what he considers to be a disruption of such
a sound economy Page 321 U. S. 452 in the postwar period. His judgment, founded, as it may be, on
his studies and investigations, as well as other economic data,
even though contrary to the great weight of current opinion or
authority, is the final touchstone of the validity of his
action.

															I shall not repeat what I have said in Bowles v. Willingham,
post, p. 321 U. S. 503 . I
have there quoted the so-called standards prescribed in the
National Industrial Recovery Act. Comparison of them with those of
the present Act, and perusal of what was said concerning them in Schechter Corp. v. United States, 295 U.
S. 495 , leaves no doubt that the decision is now
overruled. There, as here, the "code" or regulation, to become
effective, had to be found by the Executive to "tend to effectuate
the policy" of the Act. ( See footnote 3, p. 321 U. S.
521 .) The Administrator's Procedure I have not yet spoken of the statutory provisions respecting the
permissible procedure of the Administrator in imposing prices. Sec.
202(a) (50 U.S.C. § 922(a)) authorizes him to make such studies and
investigations and to obtain such information as he deems necessary
or proper to assist him in prescribing any regulation or order, or
in the administration and enforcement of the Act and regulations,
orders, and price schedules thereunder. The remaining subsections
give him broad powers to compel disclosure of information. And he
may take official notice of economic data and other facts,
including facts found as a result of his investigations and studies
(§ 203(b), 50 U.S.C. § 923(b)).

															Each regulation or order must be accompanied by a "statement of
the considerations involved" in its issue (§ 2(a), 50 U.S.C. §
902(a)). This is not a statement or finding of fact. Webster
defines the term "consideration" as "that which is, or should be,
considered as a ground of opinion or action; motive; reason." The
citizen, Page 321 U. S. 453 therefore, is merely to be advised of the reasons for the
Administrator's action.

															How is he to proceed if he desires to challenge that action? The
answer is found in § 203 (50 U.S.C. § 923). Within a specified time
after the issue of a regulation, any person subject to any
provision of it may file a protest "specifically setting forth
objections to any such provision and affidavits or other written
evidence in support of such objections." The Administrator may
receive statements in support of the regulations and incorporate
them in his proceedings. Within a time fixed, he must (1) grant or
deny the protest in whole or in part, (2) note it for hearing, or
(3) provide an opportunity to present further evidence. His is the
choice.

															If he denies the protest in whole or in part, he must inform the
protestant of the grounds upon which his decision was based and of
any economic data or other facts of which he has taken official
notice.

															This, then, is the first opportunity the protestant has to know
on what the Administrator has based his "considerations" or reasons
for action. As the Emergency Court of Appeals held in Lakemore
Co. v. Brown, 137 F.2d 355: [ Footnote 2/2 ]

															"Thus, consistently with statutory requirements, the
Administrator could have waited until he had entered his order
denying the protest before informing the protestant of the economic
data of which he had taken official notice and of the economic
conclusions which he had derived therefrom and the other grounds
upon which the denial was based."

															And it is to be observed that, after seeing the protestant's
affidavits and the evidence, the Administrator may load the record
with all sorts of material, articles, opinions, Page 321 U. S. 454 compilations, and what not -- pure hearsay -- subject to no
cross-examination, to persuade the court that his order could, "in
his judgment," promote one of the "purposes" of the Act.

															Thus is the "record" weighted against formal complaint in
court. Chatlos v. Brown, 136 F.2d 490, Spaeth v.
Brown, 137 F.2d 669, and Bibb Manufacturing Co. v.
Bowles, 140 F.2d 459, amongst other cases, indicate the sort
of data -- although they do not exclude the use of other sorts --
on which the Administrator seems to be accustomed, and to be
entitled, to act. He need make no findings of fact. The Court Review The protestant who is aggrieved by the denial or partial denial
of his protest may, within a set time, file a complaint with a
specially created Emergency Court of Appeals "specifying his
objections and praying that the regulation, order, or price
schedule protested be enjoined or set aside in whole or in part."
The court is given exclusive jurisdiction, and all other courts are
forbidden to take jurisdiction to grant such relief. The court may
set aside the order, dismiss the complaint, or remand the
proceeding. Upon the filing and service of the complaint, the
Administrator is to certify and file a transcript of such portion
of the proceedings before him as are material to the complaint (§
204(a); 50 U.S.C. § 924(a)).

															The section proceeds:

															"No objection to such regulation, order, or price schedule, and
no evidence in support of any objection thereto, shall be
considered by the court, unless such objection shall have been set
forth by the complainant in the protest or such evidence shall be
contained in the transcript. If application is made to the court by
either party for leave to introduce additional evidence which was
either offered to the Administrator and not admitted, or which
could not Page 321 U. S. 455 reasonably have been offered to the Administrator or included by
the Administrator in such proceedings, and the court determines
that such evidence should be admitted, the court shall order the
evidence to be presented to the Administrator. The Administrator
shall promptly receive the same, and such other evidence as he
deems necessary or proper, and thereupon he shall certify and file
with the court a transcript thereof and any modification made in
the regulation, order, or price schedule as a result thereof;
except that, on request by the Administrator, any such evidence
shall be presented directly to the court."

															"It is not difficult to picture the plight of the protestant.
The Administrator's statement of considerations, without more,
constitutes proof in the cause."

															In Montgomery Ward & Co. v. Bowles, 138 F.2d 669,
the Administrator in his statement of considerations said that he
took official notice of three propositions of the most general
scope. No evidence in support of these or of any other facts upon
which he relied was included in the transcript. The complainant
suggested to the court the omission of pertinent matter, namely,
the evidence in support of the propositions of which the
Administrator said he took official notice, the evidence of various
other assertions of fact in his opinion, and the particular facts
and evidence upon which he based the conclusions expressed in his
statement of considerations that "the maximum prices established in
this regulation are fair and equitable." The Administrator objected
to the suggestion, and the court rejected it. It was held that the
Act requires "only a summary statement of the basic facts which
justify the regulation."

															Referring to § 204(b), 50 U.S. Cl. § 924(b), the court held that
the requirement that the complainant must establish "to the
satisfaction of the court" that the regulation, order, or price
schedule is not in accordance with law or is arbitrary or
capricious throws upon the protestant Page 321 U. S. 456 the burden "to bring forward and satisfactorily prove the
invalidating facts," and added:

															"Unless and until he does so, the regulation is to be taken as
valid, and the existence of a state of facts which justify it is to
be assumed without the necessity of proof thereof by the
Administrator."

															The court added that the protestant is given means of carrying
this burden by filing affidavits and other evidence, but omits to
refer to the fact that these affidavits and other evidence must be
addressed to the Administrator's order and his most general and
sweeping statement of considerations, which merely means his
reasons for making the order. These affidavits and this evidence
under the procedure prescribed are to be put in before the
protestant even knows what data the Administrator relied upon or
sees the Administrator's opinion denying his protest. It is hardly
necessary to dilate upon the burden thus placed on a protestant or
the extent to which he is compelled to fill the record with what he
may think relevant matter, only to find that he has been shooting
at straws. The court further adverted to the fact that the Act
permits the protestant to state in detail in connection with his
protest the nature and sources of any further evidence not subject
to his control upon which he believes he can rely in support of the
facts alleged in his protest. Here again the protestant is under
the same handicap. He must disclose all he has in mind to the
Administrator before the Administrator makes any disclosure to him
of the facts and data upon which that official has relied.

															Finally, the court refers to the privilege given the protestant
to file a brief with the Administrator and to "request an oral
hearing," without mentioning the facts that the brief can be
addressed only to the reasons given in the statement of
consideration, and that the Administrator is at liberty to deny the
request.

															A procedure better designed to prevent the making of an issue
between parties can hardly be conceived. Page 321 U. S. 457 And the extent of the burden is further emphasized by what the
Emergency Court of Appeals has said in Lakemore Co. v. Brown,
supra: "It is objected that the Administrator thus, in effect, has
prejudged the case; that as witness, immune from cross-examination,
he has rendered an opinion which concludes the matter which is
before him as judge."

															"This overlooks the fact that the Administrator, from the
necessities of the case, does not come with a virgin mind to the
consideration of a protest. He has previously performed the
official act of issuing the regulation, the terms of which, of
course, reflect his conclusions on many economic, administrative
and legal questions. In this sense, he necessarily approaches
consideration of a protest with certain 'preconceived notions' --
to use complainant's phrase. It is the object of the protest
procedure to give the Administrator a chance to reconsider any
challenged provisions in the regulation in the light of further
evidence or arguments which may be advanced by the protestant. What
the Administrator did here was to lay his cards on the table in the
protest proceedings, offering protestant an opportunity to play its
trump cards, if it had any."

															"Of course, such statements of economic conclusions thus
incorporated in the record are not 'evidence.' Section 204(a)
requires the transcript of the protest proceedings, filed in this
court, to"

															"include a statement setting forth, so far as practicable, the
economic data and other facts of which the Administrator has taken
official notice. Insofar as any economic generalizations or
conclusions formulated by the Administrator constitute
indispensable steps in his process of reasoning in denying the
protest, it is for this court to say whether they have any rational
basis, in performance of our statutory duty to consider whether the
regulation or order should be set aside in whole or in part as
being 'arbitrary or capricious.' This is so whether the
Administrator includes such generalizations and conclusions Page 321 U. S. 458 in his opinion accompanying the denial of the protest or, as in
this case, incorporates them into the record of the protest
proceedings at an earlier stage in order to afford protestant an
opportunity for rebuttal."

															To this may be added what the Emergency Court said in Madison Park Corp. v. Bowles, 140 F.2d 316, 324:

															"We do not decide that this Court should limit the application
of the term 'generally fair and equitable' to standards mentioned
in the law and in discussions of its enactment while pending in
Congress. It may be possible that a case will occur in which the
effect of a regulation established by the Administrator clearly
will be shown to be generally unfair and inequitable on grounds not
mentioned. But, in such a case, the reasons must be clear and
compelling. The Act provides the Administrator may establish such
rents as, in his judgment, will be generally fair and
equitable. Review in this Court is plainly limited. It may not
substitute its judgment for the judgment of the Administrator, but
may act in review only when it finds the regulation is not in
accordance with law or is arbitrary and capricious. Thus, if the
Court finds any reasonable basis to support the view that the
regulation deals fairly and equitably with the industry concerned,
the regulation must stand."

															(Italics in original.)

															When these cumulative burdens placed upon the protestant who
seeks review are fairly appraised, it becomes apparent that he must
carry an insupportable load, and that, in truth, the court review
is a solemn farce in which the Emergency Court of Appeals, and this
court, on certiorari, must go through a series of motions which
look like judicial review but, in fact, are nothing but a catalogue
of reasons why, under the scheme of the Act, the courts are unable
to say that the Administrator has exceeded the discretion vested in
him.

															No court is competent, on a mass of economic opinion consisting
of studies by subordinates of the Administrator, Page 321 U. S. 459 charts and graphs prepared in support of the studies, and
economic essays gathered hither and yon, to demonstrate, beyond
doubt, that the considerations or conclusions of the Administrator
from such material cannot support the Administrator's judgment that
what he has done by way of regulation or price schedule tends to
prevent postwar collapse of values, or to prevent dissipation of
defense appropriations through excessive prices, or to prevent
impairment of the standard of living of persons dependent on life
insurance, or to prevent hardship to schools -- to enumerate but a
few of the stated purposes of the Act.

															It is not surprising that, in the thirty-one cases decided by
the Emergency Court of Appeals of which I have found reports,
complaints have been dismissed in twenty-eight, and but three have
been remanded to the Administrator for further proceedings.
[ Footnote 2/3 ] Two of the three
involved no question of merits under the statutory provisions. The War Power The Emergency Court of Appeals, in Taylor v. Brown, 137
F.2d 654, overruled a challenge to the constitutional validity of
the Act's delegation of legislative power to the Administrator by
invocation of the "War Power" of Congress, the powers embodied in
Article I, 8, of the Constitution "to declare War," "to raise and
support Armies," "to provide and maintain a Navy," and "to make all
Laws which shall be necessary and proper for carrying into
Execution" those powers. After showing, what needs no argument,
that these powers of Congress are very different from those to be
exercised in peace, the court then -- without a sign that it
realizes the great gap in the process -- assumes that one of
Congress' war powers is the power to transfer its legislative
function to a delegate. By the Page 321 U. S. 460 same reasoning, it could close this court or take away the
constitutional prerogatives of the President as "War measures."

															I am not sure how far this court's present opinion adopts the
same view. There are references in it to the war emergency, and yet
the reasoning and the authorities cited seem to indicate that the
delegation would be good in peacetime and in respect of peacetime
administration. And the Emergency Court of Appeals, in spite of its
decision in Taylor v. Brown, supra, and its statement in Philadelphia Coke Co. v. Bowles, 139 F.2d 349, that, as
the Act is an exercise of the war power, and therefore does not
deprive citizens of property without due process, has,
nevertheless, weighed provisions of the Act as against the guaranty
of the Fifth Amendment in Wilson v. Brown, 137 F.2d 348,
and in Avant v. Bowles, 139 F.2d 702.

															I am sure that my brethren, no more than I, would say that
Congress may set aside the Constitution during war. If not, may it
suspend any of its provisions? The question deserves a fair answer.
My view is that it may not suspend any of the provisions of the
instrument. What any of the branches of government do in war must
find warrant in the charter, and not in its nullification, either
directly or stealthily, by evasion and equivocation. But if the
court puts its decision on the war power, I think it should say so.
The citizens of this country will then know that, in war, the
function of legislation may be surrendered to an autocrat whose
"judgment" will constitute the law, and that his judgment will be
enforced by federal officials pursuant to civil judgments, and
criminal punishments will be imposed by courts as matters of
routine.

															If, on the contrary, such a delegation as is here disclosed is
to be sustained even in peacetime, we should know it.

															[ Footnote 2/1 ]

															The Act gives the Administrator no power with respect to wages,
and limits his powers as respects fishery commodities (50 U.S.C. §
902(i)), and agricultural commodities (50 U.S.C. § 903).

															[ Footnote 2/2 ]

															In citing cases decided by that court, I do so with no thought
that, in construing the Act's provisions, that court has erred. On
the contrary, I cite its interpretations of the statute as
supporting my views that, as properly construed, the Act is
invalid.

															[ Footnote 2/3 ] Armour & Co. v. Brown, 137 F.2d 233; Montgomery
Ward & Co. v. Bowles, 138 F.2d 669; Hillcrest Terrace
Corp. v. Brown, 137 F.2d 663.

															MR. JUSTICE RUTLEDGE, dissenting.

															I agree with the Court's conclusions upon the substantive
issues. But I am unable to believe that the trial afforded Page 321 U. S. 461 the petitioners conformed to constitutional requirements. The
matter is of such importance as requires a statement of the reasons
for dissent.

															The Emergency Price Control legislation is unusual, if not
unique. It is streamlined law in both substance and procedure. More
than any other legislation except perhaps the Selective Service
Act, in the combined effect of its provisions, it attenuates the
rights of affected individuals. The Congress regarded this as
necessary, though it sought to preserve as much of individual right
as it felt was consistent with controlling wartime inflation. To
that judgment we owe all deference, saving only what we owe to the
Constitution.

															War such as we now fight calls into play the full power of
government in extreme emergency. It compels invention of legal, as
of martial, tools adequate for the times' necessity. Inevitably,
some will be strange, if also lifesaving, instruments for a people
accustomed to peace and the normal working of constitutional
limitations. Citizens must surrender or forego exercising rights
which in other times could not be impaired. But not all are lost.
War expands the nation's power. But it does not suspend the
judicial duty to guard whatever liberties will not imperil the
paramount national interest. I Judged by normal peacetime standards, over-all nationwide price
control hardly has accepted place in our institutions.
Notwithstanding the considerable expansion of recent years in this
respect, the extension has been piecemeal. [ Footnote 3/1 ] Until now, it has not enveloped the entire
economy. [ Footnote 3/2 ] Whether
control so extensive might be upheld in some emergency not created
by war need not now be decided. Page 321 U. S. 462 That it can be supported in the present circumstances and for
the declared purposes, there can be no doubt. It is enough, as the
Court points out, that legal foundation exists in the nation's
power to make war, as this has been given to Congress and the Chief
Executive. Cf. Hirabayashi v. United States, 320 U. S.
81 . [ Footnote 3/3 ]

															The foundation has relevance for each of the issues. And
generally it has significance for the application of peacetime
precedents. Decisions made then with limitations, explicit or
implied, not affected by influence of the war power and the
conditions of a state of war, cannot be wholly conclusive in their
limiting effect upon the exercise of war-making authority. Care
must be taken therefore, in applying them, both to see that they
are observed so far as the dominant necessity permits and to be
equally sure they are not misapplied to hamstring essential
authority. [ Footnote 3/4 ]

															As it is with the substantive control, so it is with delegating
legislative power. War begets necessities for this, as for imposing
substantive controls, not required by the lesser exigencies of more
normal periods. In this respect, certainly there is as much room
for difference as exists when Congress is dealing wholly with
internal matters and when it is acting with the President about
foreign affairs. Cf. United States v. Curtiss-Wright Export
Corp., 299 U. S. 304 . Not
only the broader power of Congress, but its conjunction in the
particular delegation with the wider authority of the President,
both as chief magistrate and as commander-in-chief, goes to sustain
the greater delegation. Cf. Hirabayashi v. United States,
supra. But the present legislation, as the Court's opinion
demonstrates, Page 321 U. S. 463 does not go beyond the limits allowed by peacetime precedents in
the substantive delegation. [ Footnote
3/5 ] II My difficulty arises from the Act's procedural provisions. They
too are unusual. That is true though each save one has been used
before, and sustained, in separate applications. No previous
legislation has presented quite this combination of procedural
devices. [ Footnote 3/6 ] In the
combination, if in nothing more, unique quality would be found. But
there is more.

															Congress sought to accomplish two procedural objectives. One was
to afford a narrow but sufficient method for securing review and
revision of the regulations. At the same time, the Act created
broad and ready methods for enforcement. The short effect of the
procedure is to give the individual a single channel for
questioning the validity of a regulation, through the protest
procedure and the Emergency Court of Appeals, with review of its
decisions here on certiorari. § 204. On the other hand, the varied
and widely available means for enforcement include criminal
proceedings, suits in equity, and suits for recovery of civil
penalties, in the federal district courts and in the state courts.
§ 205(a), (b), (c). See also Page 321 U. S. 464 § 205(d), (e), (f). [ Footnote
3/7 ] And in all these enforcement proceedings, the mandate of §
204(d) is that the court shall have no "jurisdiction or power to
consider the validity of" a regulation, order or price schedule.
The statute thus affords the individual, to question a regulation's
validity, one route and that a very narrow one, open only briefly.
The administrator and others, to enforce it, have many. And, in the
enforcement proceedings, the issues are cut down so that, in a
practical sense, little else than the fact whether a violation of
the regulation as written has occurred or is threatened may be
inquired into. [ Footnote 3/8 ]

															Disparity in remedial and penal measures does not necessarily
invalidate the procedure, though it has relevance to adequacy of
the remedy allowed the individual. [ Footnote 3/9 ] Congress has broad discretion to open and
close the doors to litigation. In doing so, it may take account of
the necessities presented by such a situation as it was dealing
with here. To follow the usual course of legislation and permit
challenge by restraining orders, injunctions, stay orders and the
normal processes of litigation would have been, in this case, to
lock the barn door after the horse had been stolen. There was
therefore compelling reason for Congress to balance the scales of
litigation unevenly, if only it did not go too far. In no other way
could it protect the paramount national interest. If the result,
within the permissible limits, is harsh or inconvenient for Page 321 U. S. 465 the individual, that is but part of the price he, with all
others, must pay for living in a nation which ordinarily gives him
so much of protection, but in a world which has not been organized
to give it security against events so disruptive of democratic
procedures.

															I have no difficulty with the provision which confers
jurisdiction upon the Emergency Court of Appeals to determine the
validity of price regulations or, if that had been all, with the
mandate which makes its jurisdiction in that respect exclusive.
Equally clear is the power of Congress to deprive the other federal
courts of jurisdiction to issue stay orders, restraining orders,
injunctions or other relief to prevent the operation of price
regulations or to set them aside. So much may be rested on
Congress' plenary authority to define and control the jurisdiction
of the federal courts. Constitution, Article III, § 2; Lockerty
v. Phillips, 319 U. S. 182 . It
may be taken too, for the purposes of this case, that Congress'
power to channel enforcement of federal authority through the
federal courts sustains the like prohibitions it has placed on the
state courts. [ Footnote 3/10 ]
Without more, the statute's provisions would seem to be
unquestionably within the Congressional power. Cf. Myers v.
Bethlehem Shipbuilding Corp., 303 U. S.
41 .

															Congress, however, was not content to create a single national
tribunal, give it exclusive jurisdiction to determine all cases
arising under the statute, and deny jurisdiction over them to all
other courts. [ Footnote 3/11 ] It
provided for enforcement Page 321 U. S. 466 by civil and criminal proceedings in the federal district courts
and in the state courts throughout the country.

															This, too, it could do, though only if adequate proceedings, in
the constitutional sense, were authorized. And I agree that the
enforcing jurisdiction would not be made inadequate merely by the
fact that no stay order or other relief could be had pending the
outcome of litigation. Confronted as the nation was with the
imminent danger of inflation, and therefore the necessity that
price controls should become effective at once and continue so
without interruption at least until invalidated in particular
instances, Congress could require individuals to sustain, in
deference to the paramount public interest, whatever harm might
ensue during the period of litigation and until each had
demonstrated the invalidity of the regulation as it affected
himself. [ Footnote 3/12 ] Runaway
inflation could not have been avoided in any other way. The lid had
to go on, go on tight, and stay tight. This necessity united with
the general presumption of validity which attaches to legislation
[ Footnote 3/13 ] and Congress'
power to control the jurisdiction of the courts to sustain its
denial of power to all courts, including the enforcing courts, the
Emergency Court and this one, [ Footnote 3/14 ] to suspend operation of the regulations
pending final determination of validity. Page 321 U. S. 467 The crux of this case comes, as I see it, in the question
whether Congress can confer jurisdiction upon federal and state
courts in the enforcement proceedings, more particularly the
criminal suit, and at the same time deny them "jurisdiction or
power to consider the validity" of the regulations for which
enforcement is thus sought. This question, which the Court now says
"presents no novel constitutional issue," was expressly and
carefully reserved in Lockerty v. Phillips, supra. The
prohibition is the statute's most novel feature. In combination
with others, it gives the procedure a culminating summary touch,
and presents questions different from those arising from the other
features.

															The prohibition is unqualified. It makes no distinction between
regulations invalid on constitutional grounds and others merely
departing in some respect from statutory limitations, which
Congress might waive, or by the criterion whether invalidity
appears on the face of the regulation or only by proof of facts. If
the purpose and effect are to forbid the enforcing court to
consider all questions of validity, and thus to require it to
enforce regulations which are or may be invalid for constitutional
reasons, doubt arises in two respects. First, broad as is Congress'
power to confer or withhold jurisdiction, there has been none
heretofore to confer it and at the same time deprive the parties
affected of opportunity to call in question in a criminal trial
whether the law, be it statute or Page 321 U. S. 468 regulation, [ Footnote 3/15 ]
upon which the jurisdiction is exercised squares with the
fundamental law. Nor has it been held that Congress can forbid a
court invested with the judicial power under Article III to
consider this question, when called upon to give effect to a
statutory or other mandate.

															It is one thing for Congress to withhold jurisdiction. It is
entirely another to confer it and direct that it be exercised in a
manner inconsistent with constitutional requirements, or, what in
some instances may be the same thing, without regard to them. Once
it is held that Congress can require the courts criminally to
enforce unconstitutional laws or statutes, including regulations,
or to do so without regard for their validity, the way will have
been found to circumvent the supreme law and, what is more, to make
the courts parties to doing so. This Congress cannot do. There are
limits to the judicial power. Congress may impose others. And, in
some matters, Congress or the President has final say under the
Constitution. But whenever the judicial power is called into play,
it is responsible directly to the fundamental law ,and no other
authority can intervene to force or authorize the judicial body to
disregard it. The problem therefore is not solely one of individual
right or due process of law. It is equally one of the separation
and independence of the powers of government and of the
constitutional integrity of the judicial process, more especially
in criminal trials. III The idea is entirely novel that regulations may have a greater
immunity to judicial scrutiny than statutes have with respect to
the power of Congress to require the courts to enforce them without
regard to constitutional requirements. Page 321 U. S. 469 At a time when administrative action assumes more and more of
the lawmaking function, [ Footnote
3/16 ] it would seem the balance of advantage, if any, should be
the other way. But there is none. The statute has impact upon
individuals only through the regulations. They are, in effect, part
of the Act itself, unless invalid. If invalid, they rule, just as
the statute does, until set aside. And, in respect to
constitutional requirements, they have no more immunity than the
statute itself. [ Footnote
3/17 ]

															Clearly, Congress could not require judicial enforcement of an
unconstitutional statute. The same is true of an unconstitutional
regulation. And it is conceded that Congress could not have
compelled judicial enforcement of all price regulations, without
regard to their validity, if it had not given opportunity for
attack upon them through the Emergency Court or if that opportunity
is inadequate. But because the opportunity is afforded and is
deemed adequate in the unusual circumstances, at any rate for some
of its purposes, and because it was not followed, the Court holds
that criminal enforcement must be given, and the enforcing court
cannot consider the question of validity. Page 321 U. S. 470 If I understand it, the argument to sustain the conviction, in
its broadest form, rests upon the proposition that Congress, by
providing in one proceeding a constitutionally adequate mode for
deciding upon the validity of a law or regulation, and requiring
this to be followed within a limited time, can cut off all other
right to question it and make that determination, or the failure to
secure it in time, conclusive for all purposes and in all other
proceedings. The proposition cannot be accepted in that broad form.
To do so would mean, for instance, that if, in this case, a
regulation had prescribed one maximum price for sales by merchants
of one race or religion and a lower one for distributors of
another, the judicial power of the United States would have to be
exercised to convict the latter for selling at the formers' price,
if they had not availed themselves of the limited review afforded
by this Act. It hardly would be consistent with accepted ideas of
due process or equal protection for any court to impose penalty or
restraint in such a case. [ Footnote
3/18 ] And I cannot imagine this Court as sustaining such a
conviction or any other as imposing it. [ Footnote 3/19 ]

															The illustration is extreme and improbable of occurrence. But it
serves to test the broad contention. Such a doctrine, established
as generally applicable, would contain seeds of influence too
dangerous for acceptance, more especially for the determination of
criminal matters. No authority compels or enjoins this. And I am
unwilling to give the idea adherence in particular applications
without stating qualification which confines its possible
effects Page 321 U. S. 471 to situations where the gravest dangers to the nation's interest
exist and cannot be escaped in any other way.

															The question narrows, therefore, to the inquiry, in what
circumstances and under what conditions may Congress, by offering
the individual a single chance to challenge a law or an order,
foreclose for him all further opportunity to question it, though
requiring the courts to enforce it by criminal processes? This
question is the most important one in the case, and demands
explicit attention.

															"It is easy enough to say that a party has enough of a remedy if
statutory review of the order is available, and, if he does not
choose to employ that procedure, he should be foreclosed from
raising elsewhere the questions that could have been raised in that
proceeding. [ Footnote 3/20 ]"

															But to make this easy assumption is at once to decide the
rock-bottom issue and, in my opinion, one this Court has not
determined heretofore with effects upon the criminal process like
those produced in this case. [ Footnote 3/21 ] IV It is true that, in a variety of situations and for a variety of
reasons, a person is foreclosed from raising issues, including some
constitutional ones, where he has failed to exercise an earlier
opportunity. Thus, ordinarily issues cannot be raised on appeal
which were not presented in Page 321 U. S. 472 the trial court. And a variant is that federal questions not
raised in the state courts generally will not be considered here.
[ Footnote 3/22 ]

															But such instances of foreclosure, whether legislative or
judicial in origin, do not support the broader basis of argument in
this case. Two things are to be emphasized. One is that the
previous opportunity is in an earlier phase of the same proceeding,
not, as here, a separate and independent one of wholly different
character. In other words, the determination of guilt or other
matter ultimately in issue is not cut up into two separate,
distinct and independent proceedings in different tribunals, in
which neither body has power to consider and decide all the issues,
but each can determine them only in part. The other thing for
stress is that the foreclosure by failure to take the earlier
chance is not universally effective. And this is true particularly
of constitutional questions, some of which may be raised at any
time. [ Footnote 3/23 ] While
Congress has plenary power to confer Page 321 U. S. 473 or withhold appellate jurisdiction, cf. 74 U.
S. 7 Wall. 506, it has not so far been held, and it
does not follow, that Congress can confer it, yet deny the
appellate court "power to consider" constitutional questions
relating to the law in issue.

															If the foreclosure is not always effective when the earlier
phase of litigation is wholly judicial, it hardly should be when
this consists of administrative or of both administrative and
judicial proceedings, still less when these are civil in character
and the later enforcement phase is criminal. In the enforcement of
administrative orders, the courts have been assiduous, perhaps at
times extremely so, [ Footnote
3/24 ] to see that constitutional protections to the persons
affected are observed. By trial and error, ways have been found to
give the administrative process scope for effective action and yet
to maintain individual security against abuse, especially in
respect to constitutional rights. [ Footnote 3/25 ] The instances closest to the problem
here have provided for attaching penalties, including criminal
sanctions, to violations of orders. But generally, by one method or
another, means have been supplied for postponing their impact, at
any rate irrevocably, until after the order's validity has Page 321 U. S. 474 been established. [ Footnote
3/26 ] And in that effort, this Court has joined. [ Footnote 3/27 ]

															Whatever may be the limitations on judicial review in criminal
proceedings under other administrative enforcement patterns,
[ Footnote 3/28 ] no one of these
arrangements goes as far as the combination presented by this Act.
It restricts the individual's right to review to the protest
procedure and appeal through the Emergency Court of Appeals Both
are short-cut proceedings, trimmed almost to the bone of due
process, even for wholly civil purposes, and pared down further by
a short statute of limitations. Protest must be filed within the
sixty-day period. After that time, no protest can be made, and no
review can be Page 321 U. S. 475 had, except upon grounds arising later. § 203(a). [ Footnote 3/29 ] The only right is
to submit written evidence and argument to the administrator. §
203(c). There is none to present additional evidence to the court.
[ Footnote 3/30 ] Necessarily,
there is none of cross-examination. No court can suspend the order
unless or until a judgment of the Emergency Court invalidating it
becomes final. [ Footnote 3/31 ]
The penalties, civil and criminal, attach at once on violation and,
it would seem, until the contrary is decided, with finality.
[ Footnote 3/32 ] At any rate, Page 321 U. S. 476 that is the statute's purport. In short, the statute, as drawn,
makes not only the regulation, but also the penalties, immediately
and fully effective without regard to whether protest is made, the
protest proceeding is carried to conclusion, or what the conclusion
may be, except, and this is by inference, that violation after the
order finally is held invalid may not be punishable.

															This is the scope and reach of the statute. It is greater than
any this Court heretofore has sustained. [ Footnote 3/33 ] It places Page 321 U. S. 477 the affected individual just where the Court, speaking through
Mr. Justice Lamar in Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651 , 235 U. S. 662 ,
said he could not be put: "He must either obey what may finally be
held to be a void order or disobey what may ultimately be held to
be a lawful order." Yet the Court holds this special proceeding
"adequate," and therefore effective to foreclose all opportunity
for defense in a criminal prosecution on the ground the regulation
is void.

															This is no answer. A procedure so summary, imposing such risks,
does not meet the requirements heretofore considered essential to
the determination or foreclosure of issues material to guilt in
criminal causes. It makes no difference that petitioners did not
follow the special procedure. The very question, posed in the
Court's own terms, is whether, if they had followed it, the remedy
would be adequate constitutionally. It cannot be, under previously
accepted ideas, if, for one who follows it to a favorable judgment,
the penalty yet may fall. That question the Court does not decide.
Unless it is decided, the question of adequacy, in any sense
heretofore received, has not been determined, or an entirely new
conception of adequacy has been approved. Page 321 U. S. 478 V But there is a deeper fault, even if we assume what neither the
statute nor the Court's opinion today justifies, that a potential
offender who successfully challenges the constitutionality of a
regulation or begins a challenge on constitutional grounds in the
Emergency Court at any time before or during the criminal
prosecution, cannot be convicted, at least until after final
decision that the order is valid. There still remain those cases
where he has either challenged unsuccessfully in the Emergency
Court or has not challenged at all. In them, the would-be offender
is subject to criminal prosecution without a right to question in
the criminal trial the constitutionality of the regulation on which
his prosecution and conviction hinge. And this seems to be true
without distinction as to the character of the ground on which he
seeks to make the issue. To say that this does not operate
unconstitutionally on the accused because he has the choice of
refraining from violation or of testing the constitutional
questions in a civil proceeding beforehand entirely misses the
point. The fact is that, if he violates the regulation, he must be
convicted, in a trial in which either an earlier and summary civil
determination or the complete absence of a determination forecloses
him on a crucial constitutional question. In short, his trial for
the crime is either in two parts in two courts or on only a portion
of the issues material to guilt in one court. This may be all very
well for some civil proceedings. But, so far as I know, criminal
proceedings of this character never before have received the
sanction of Congress or of this Court. That, like many other
criminals, an offender here can be punished for making the wrong
guess as to the constitutionality of the regulation I have no
doubt. But that, unlike all other criminals, he can be convicted on
a trial in two parts, one so summary and civil and the other
criminal Page 321 U. S. 479 or, in the alternative, on a trial which shuts out what may be
the most important of the issues material to his guilt, I do
deny.

															The Sixth Amendment guarantees to the accused

															"in all criminal prosecutions . . . the right to a speedy and
public trial, by an impartial jury of the State and district
wherein the crime shall have been committed. . . ."

															By Article III, § 2,

															"The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury, and such Trial shall be held in the State where the
said Crimes shall have been committed. . . ."

															And, by the same section, "The judicial Power," which is vested
in the supreme and inferior courts by § 1, "shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws
of the United States, and Treaties made . . . under their
Authority."

															By these provisions, the purpose hardly is to be supposed to
authorize splitting up a criminal trial into separate segments,
with some of the issues essential to guilt triable before one court
in the state and district where the crime was committed and others,
equally essential, triable in another court in a highly summary
civil proceeding held elsewhere, or to dispense with trial on them
because that proceeding has not been followed. [ Footnote 3/34 ] If the validity of the Page 321 U. S. 480 order, on constitutional or other grounds, has any substantial
relationship to the petitioners' guilt, and it cannot be denied
that it does, the short effect of the procedure is to chop up their
trial into two separate, successive and distinct parts or
proceedings, in each of which only some of the issues determinative
of guilt can be tried, the two being connected only by the thread
of finality which runs from the decision of the first into the
second. The effect is to segregate out of the trial proper issues,
whether of law or of fact, relating to the validity of the law for
violation of which the defendants are charged, and to leave to the
criminal court only the determination of whether a violation of the
regulation as written actually took place and whether, in some
other respect, the statute itself is invalid. If Congress can
remove these questions, it can remove also all questions of
validity of the statute or, it would seem, of law.

															The consequences of this splitting hardly need further noting.
On facts and issues material to validity of the regulation, the
persons charged are deprived of a full trial in the state or
district where the crime occurs, even if the Emergency Court sits
there, as it is not required to do. Their right to try those
constitutional issues, both of fact and of law, on which a criminal
conviction ultimately will hinge is restricted rigidly to the
introduction of written evidence before the administrator in a
proceeding barely adequate, even under special circumstances like
these, to meet the requirements of due process of law in civil
proceedings. The court which makes the decision on these issues
cannot consider the facts constituting the violation. It has no
power to pass judgment of guilty or not guilty upon the whole of
the evidence. It can only pronounce Page 321 U. S. 481 the law valid or invalid in a setting wholly apart from any
charge of crime, from the facts alleged as its commission, and from
the usual protections which surround its trial.

															On the other hand the special tribunal's judgment, rendered it
may be on disputed facts as well as law, becomes binding against
the accused in the later proceeding. He cannot then dispute it,
regardless of whether, meanwhile, the facts have changed [ Footnote 3/35 ] or new and additional
evidence has been discovered and might be tendered with conclusive
effect, if it were admissible. He can tender no evidence on what
may be the most vital issue in his case and one, it may likewise
be, that the evidence then available would sustain overwhelmingly.
The trial court must shut its eyes to all such offers of proof and,
moreover, to any such issue of law. VI A procedure so piecemeal, so chopped up, so disruptive of
constitutional guaranties in relation to trials for crime, should
not, and, in my judgment, cannot be validated as to such
proceedings, under the Constitution. Even war does not suspend the
protections which are inherently part and parcel of our criminal
process. Such a dissection of the trial for crime could be
supported, under our system, only upon some such notions as waiver
and estoppel or res judicata, whether or not embodied in
legislation. [ Footnote 3/36 ]
These too are strange and inadequate vehicles for trying whether
the citizen has been guilty of criminal conduct. They bar defense,
while keeping prosecution open, before it begins. Page 321 U. S. 482 Res judicata, by virtue of a judgment in some prior
civil proceeding, where different constitutional guaranties
relating to the mode and course of trial have play, has not done
duty heretofore to replace either proof of facts before a jury or
decision of constitutional questions necessary to make up the sum
of guilt in the criminal proceeding itself. Congress can invade the
judicial function in criminal cases no more by compelling the court
to dispense with proof, jury trial or other constitutionally
required characteristics than it can by denying all effect of
finality to judicial judgments. Cf. Schneiderman v. United
States, 320 U. S. 118 ,
concurring opinion at 320 U. S.
167 -168. And while, as noted above, notions of waiver
and estoppel have had place in criminal proceedings to an extent
not wholly defined, in some instances harshly and artificially,
[ Footnote 3/37 ] they have not had
effect heretofore to enable Congress to force a waiver of defense
upon the individual by offering a choice between two kinds of
trial, neither of which satisfies constitutional requirements for
criminal trials. Certainly when the consequences are so novel and
far-reaching as they may be under this procedure, both for the
individual and for the judicial system, these conceptions should
not be given legal establishment to bring them into being.

															To state the question often is to decide it. And it may do this
by failure to reveal fully what is at stake. The question is not
merely whether the protest proceeding is adequate in the
constitutional sense for some of the purposes pertinent to that
proceeding. It is rather what effect shall be given to the civil
determination in the later and entirely different criminal trial.
It is whether, by substituting that civil proceeding for decision
of basic issues in the criminal trial itself, Congress can
foreclose Page 321 U. S. 483 the accused from having them decided in that trial, and thereby
deprive him of the protections in trial guaranteed all persons
charged with crime and thus of full and adequate defense. It is not
the equivalent of that sort of defense to force one to initiate a
curtailed civil suit or to cut him off shortly from all defense on
the issues allocated to it, if he does not do so. Again, the
question is not merely whether the individual can waive his
constitutional trial of the issue of validity. It is, rather,
whether Congress can force him to do so in the manner attempted
and, beyond this, whether he and Congress together, in the combined
effects of what they do, can so strip the criminal forum of its
power and of its duty to abide the law of the land. And if the
issue is further whether Congress can do this in some situations,
respecting some issues, under more usual safeguards, the question
requires attention to these important limitations. [ Footnote 3/38 ]

															The procedural pattern is one which may be adapted to the trial
of almost any crime. Once approved, it is bound to spawn progeny.
If, in one case, Congress thus can withdraw from the criminal court
the power to consider the validity of the regulations on which the
charge is based, it can do so for other cases, unless limitations
are pointed out clearly and specifically. And it can do so for
statutes, as well. In short, the way will have been found to avoid,
if not altogether the power of the courts to review legislation for
consistency with the Constitution, [ Footnote 3/39 ] then, in part, at least, their
obligation to observe its commands, and, more especially, the
guaranteed protections of persons charged with crime in the trial
of their causes. This is not merely control or definition of
jurisdiction. It Page 321 U. S. 484 is, rather, unwarranted abridgement of the judicial power in the
criminal process unless, at the very least, it is confined
specifically to situations where the special proceeding provides a
fair and equal substitute for full defense in the criminal trial or
other adequate safeguard is afforded against punishment for
violating an order which itself violates or may violate basic
rights. So much should not be accomplished merely by giving to the
failure to take advantage of opportunity for summary civil
determination, coupled with a short statute of limitations upon its
availability, the effect of a full and final criminal adjudication.
To do this hardly observes the substance of "adequacy" in criminal
trials.

															From what has been said, it seems clear that Congress cannot
forbid the enforcing court, exercising the criminal jurisdiction,
to consider the constitutional validity of an order invalid on its
face. Any other view would permit Congress to compel the courts to
enforce unconstitutional laws. Nor, in my opinion, can Congress
forbid consideration of validity in all cases, if it can in any,
where the invalidity appears only from proof of facts extrinsic to
the regulation. Again, the racial or religious line is obvious and
pertinent. If, for instance, one charged criminally with violating
the regulation should tender proof it was being enforced in a
manner to deny him the equal protection of the laws, because of his
racial or religious connections, it is difficult to believe the
evidence could be excluded consistently with the judicial
obligation. The Constitution does not make judicial observance or
enforcement of its basic guaranties depend on whether their
violation appears from the face of legislation, or only from its
application to proven facts. Snowden v. Hughes, 321 U. S. 1 ; Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S.
373 -374; United States v. Carolene Products
Co., 304 U. S. 144 , 304 U. S.
152 -154.

															For legislation not void on its face, a presumption of
constitutionality attaches and remains until it is proven Page 321 U. S. 485 invalid or so in operation. In such cases, there is no
unfairness, nor any invasion of the court's paramount obligation in
requiring one who would avoid the regulations' impact to show they
are not what they appear to be or that they are made to operate
otherwise than as they purport or were intended. But it is one
thing to say that burden must be borne within the enforcement
proceeding itself, and another to say it must be carried entirely
outside it. To require the defendant to prove invalidity in such a
situation in the criminal trial itself upon a showing of violation
of the statute is wholly permissible. But for the court to be
unable to receive tendered evidence which might disclose the
statute's invalid character and effect is quite different.
Certainly, under the circumstances of this case, it would seem to
be as much a violation of individual right and as much an invasion
of the judicial function for Congress to command the court not to
receive the evidence regardless of its character or effect as for
it to direct the court to enforce a law or an order void on its
face. VII To sanction conviction of crime in a proceeding which does not
accord the accused full protection for his rights under the Fifth
and Sixth Amendments and which entails a substantial legislative
incursion on the constitutionally derived judicial power, if,
indeed, this ever could be sustained, would require a showing of
the greatest emergency coupled with an inability to accomplish the
substantive ends sought in any other way. No one questions the
seriousness of the emergency the Price Control Act was adopted to
meet. And it has been urged with great earnestness that the
nation's security in the present situation requires that the
statute's procedure followed in this case be sustained to its full
extent.

															That argument would be more powerful if enforcement of the
statute, and thus maintenance of price control, were Page 321 U. S. 486 dependent upon accepting every feature. No doubt to impose the
criminal sanction, as has been done in this case, implements the
enforcement process with the deterrent effects which usually
accompany that sanction. But neither its use nor enforcement of the
statute's substantive prohibitions requires that the criminal court
shall not consider the validity of the regulations.

															With the arsenal of other valid legal weapons available, there
can be no lack of speedy and effective measures to secure
compliance. The regulations are effective until invalidated. They
cannot be suspended by any court pending final decision here, if
the last source of relief is sought. All the armory of equity, and
with it the sanctions of contempt, are available to keep the
regulations in force and to prevent violations, at least until
decision here is sought and had that the regulations are invalid.
The same weapons are available to enforce them permanently if they
are found valid. Apart from defense when charged with crime, the
individual's only avenue of escape, and that not until final
decision of invalidity has been made, is by protest and appeal
through the single route prescribed. Finally, in addition to all
this, the dealer may be punished for crime if he violates the
regulation willfully and cannot show it is invalid either in his
defense or by securing a judgment to this effect through the
protest procedure. In either case, in view of the statute's
curtailment of his substantive rights and the consequent increase
in the burden of proving facts sufficient to nullify the
regulation, [ Footnote 3/40 ] his
chance for escape Page 321 U. S. 487 becomes remote, to say the least. In view of all these resources
and advantages, the assertion hardly is sustained that enforcement
requires also depriving the accused of his opportunity for full and
adequate defense in his criminal trial.

															War requires much of the citizen. He surrenders rights for the
time being to secure their more permanent establishment. Most men
do so freely. According to our plan, others must do so also, as far
as the nation's safety requires. But the surrender is neither
permanent nor total. The great liberties of speech and the press
are curtailed, but not denied. Religious freedom remains a Page 321 U. S. 488 living thing. With these, in our system, rank the elemental
protections thrown about the citizen charged with crime, more
especially those forged on history's anvil in great crises. They
secure fair play to the guilty and vindication for the innocent. By
one means only may they be suspended, even when chaos threatens.
Whatever else seeks to dispense with them or materially impair
their integrity should fail. Not yet has the war brought extremity
that demands or permits them to be put aside. Nor does maintaining
price control require this. The effect, though not intended, of the
provision which forbids a criminal court to "consider the validity"
of the law on which the charge of crime is founded, in only
opinion, would be greatly to impair these securities. Hence, I
cannot assent to that provision as valid.

															Different considerations, in part at any rate, apply in civil
proceedings. [ Footnote 3/41 ] But,
for the trial of crimes, no procedure Page 321 U. S. 489 should be approved which dispenses with trial of any material
issue or splits the trial into disjointed segments, one of which is
summary and civil, the other but a remnant of the ancient criminal
proceeding.

															The judgment should be reversed.

															I am authorized to say that MR. JUSTICE MURPHY joins in this
opinion.

															[ Footnote 3/1 ] Cf., e.g., Nebbia v. New York, 291 U.
S. 502 .

															[ Footnote 3/2 ]

															Perhaps the nearest previous approach to control so extensive
was in the National Industrial Recovery legislation.

															[ Footnote 3/3 ] Cf. 321
U.S. 414 fn3/18|>note 18 infra. [ Footnote 3/4 ]

															It goes without saying that whatever scope is allowed for
operation of governmental authority in peace continues to be
effective in war.

															[ Footnote 3/5 ] E.g., the administrator has no power to adopt codes of
fair competition generally, such as was given under NIRA. His
principal function is single, to determine and make effective by
regulation the maximum price at which a commodity may be sold. The
task is vast and complex, in comparison with previously sustained
price-fixing delegations, by virtue of the number of industries and
items affected and the nationwide scope of the authority. But the
focus of the price-fixing function is narrow, although powerful, in
its incidence upon a particular industry or operator.

															[ Footnote 3/6 ] Cf. Judicial Review of Price Orders under the Emergency
Price Control Act (1942) 37 Ill.L.Rev. 256, 263-264, and other
materials cited infra, notes 321
U.S. 414 fn3/20|>20, 321
U.S. 414 fn3/21|>21.

															[ Footnote 3/7 ]

															By § 205(f)(1), (2), licensing authority is given to the
administrator, with special provisions for suspension for not more
than twelve months by proceedings in state, territorial or federal
district courts.

															[ Footnote 3/8 ]

															It is conceded that questions concerning the validity of
statutory provisions, as distinguished from regulations, remain
determinable by enforcing courts. See Sen.Rep. No. 931,
77th Cong., 2d Sess., 24-25, and compare H.R. 5479, 77th
Cong., 1st Sess., printed in hearings before Committee on Banking
and Currency on 11. R. 5479, 77th Cong., 2d Sess., 4, 7.

															[ Footnote 3/9 ] Cf. Parts 321 U. S. 321 U. S. infra. [ Footnote 3/10 ] The Moses
Taylor , 4 Wall. 411; Bowles v. Willingham,
post, p. 321 U. S. 503 ; cf. Claflin v. Houseman, 93 U. S. 130 ; Plaquemines Tropical Fruit Co. v. Henderson, 170 U.
S. 511 .

															[ Footnote 3/11 ]

															This it might have done, subject only to the requirement that
the procedure specified for the single competent court afford a
constitutionally adequate mode for determining the issues. Myers v. Bethlehem Shipbuilding Corp., supra. In case
criminal jurisdiction were conferred, observance of the
requirements of Article III, § 2, and of the Fifth and Sixth
Amendments concerning such trials would be required. Cf. text infra Parts 321 U. S. 321 U. S. [ Footnote 3/12 ] Cf. L'Hote v. New Orleans, 177 U.
S. 587 ; Welch v. Swasey, 214 U. S.
91 ; Hamilton v. Kentucky Distilleries &
Warehouse Co., 251 U. S. 146 .

															[ Footnote 3/13 ] Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 ; United States v. Carolene Products Co., 304 U.
S. 144 , 304 U. S.
152 -154.

															[ Footnote 3/14 ]

															By § 204(b) of the Act, the effectiveness of a judgment of the
Emergency Court enjoining or setting aside the regulation, in whole
or in part, is postponed until the expiration of thirty days from
its entry and, if certiorari is sought here within that time, the
postponement continues until this Court's denial of the writ
becomes final or until other final disposition of the case by this
Court. By § 204(d), the Emergency Court and this Court are given
exclusive jurisdiction to determine the validity of the regulation,
and all other courts are denied "jurisdiction or power to consider"
this question and to stay, restrain, enjoin or set aside any
provision of the regulation or its enforcement. The net effect is
to deprive all courts of power to suspend operation of the
regulation pending final decision on its validity, and to keep it
in force until a final judgment of the Emergency Court, or of this
Court on review of its decision, becomes effective.

															[ Footnote 3/15 ] Cf. text infra, 321 U.
S. at notes 321
U.S. 414 fn3/16|>16, 321
U.S. 414 fn3/17|>17.

															[ Footnote 3/16 ]

															There hardly can be question that, whenever an administrative
agency, acting within the discretion validly conferred upon it by
Congress, promulgates a regulation or issues an order of general
applicability it is "making the law," as effectively as is Congress
when it enacts a specific prescription, by whatever name this may
be called. United States v. Grimaud, 220 U.
S. 506 ; Avent v. United States, 266 U.
S. 127 ; United States v. Michigan Portland Cement
Co., 270 U. S. 521 .

															[ Footnote 3/17 ] Cf. the 321 U. S. Justice Roberts. The notion that Congress somehow could cut off
review of regulations for constitutional invalidity when it could
not do so for statutes, of which suggestions appear in the
legislative history and the briefs, was not adhered to in the oral
argument as to regulations void on their face, and is not tolerable
when the effect would be to make the courts instruments for
enforcing unconstitutional mandates. Cf. 321 U.
S. infra. [ Footnote 3/18 ] See 321
U.S. 414 fn3/17|>note 17 supra. The unique
circumstances involved in Hirabayashi v. United States, 320 U. S. 1 , confine
that case to its facts, including the particular emergency with
which legislation there under review had dealt, as respects the
issue of equal protection.

															[ Footnote 3/19 ] Cf. notes 321
U.S. 414 fn3/23|>23, 321
U.S. 414 fn3/33|>33 infra. [ Footnote 3/20 ]

															McAllister, Statutory Roads to Review of Federal Administrative
Orders (1940), 28 Calif.L.Rev. 129, 166.

															[ Footnote 3/21 ] Ibid. Cf. Judicial Review of Price Orders
Under the Emergency Price Control Act (1942) 37 Ill.L.Rev. 256,
263; Stason, Timing of Judicial Redress from Erroneous
Administrative Action (1941) 25 Minn.L.Rev. 560, 575, 576-581;
Administrative Features of the Emergency Price Control Act (1942)
28 Va.L.Rev. 991, 998, 999; Reid and Hatton, Price Control and
National Defense (1941) 36 Ill.L.Rev. 255, 283-284. For an analysis
of litigation under this Act, see Sprecher, Price Control
in the Courts (1944) 44 Col.L.Rev. 34.

															[ Footnote 3/22 ]

															The foreclosure may be founded upon notions of waiver, comity,
putting an end to litigation, securing orderly procedure or the
advantages of having available for consideration in the later
stages the informed judgment of the trial tribunal, or some
combination of these and other considerations. Cf. Stason,
Timing of Judicial Review from Erroneous Administrative Action
(1941) 25 Minn.L.Rev. 560, 576-581; Berger, Exhaustion of
Administrative Remedies (1939) 48 Yale L.J. 980, 1006. And the rule
against allowing collateral attack, where a judgment is involved,
is relevant to the broad problem of foreclosure.

															[ Footnote 3/23 ]

															Commonly it is said that "jurisdictional" questions,
particularly concerning the court's power to deal with the subject
matter, may be raised at any stage or in a collateral attack. And
this seems to be true also of some other constitutional issues
through challenge to judgments by habeas corpus proceedings long
after the judgment has become final. Cf., e.g., Ex parte
Virginia, 100 U. S. 339 ; Ex parte Siebold, 100 U. S. 371 ; Johnson v. Zerbst, 304 U. S. 458 ; Mooney v. Holohan, 294 U. S. 103 . Compare Revised Rules of the Supreme Court of the United
States, Rule 27, paragraph 6; cf. Weems v. United States, 217 U. S. 349 , 217 U. S. 362 ; Columbia Heights Realty Co. v. Rudolph, 217 U.
S. 547 ; Brasfield v. United States, 272 U. S. 448 ; Mahler v. Eby, 264 U. S. 32 , 264 U. S.
45 .

															[ Footnote 3/24 ] Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 ; Crowell v. Benson, 285 U. S. 22 ; St. Joseph Stock Yards Co. v. United States, 298 U. S.
38 ; Utah Fuel Co. v. National Bituminous Coal
Comm'n, 306 U. S. 56 , with Myers v. Bethlehem Shipbuilding Corp., 303 U. S.
41 .

															[ Footnote 3/25 ] E.g., compare Federal Trade Commission v. Gratz, 253 U. S. 421 , with Labor Board v. Mackay Radio Co., 304 U.
S. 333 ; cf. also Morgan v. United States, 298 U. S. 468 ; 304 U. S. 304 U.S.
1; United States v. Morgan, 307 U.
S. 183 . Compare 321
U.S. 414 fn3/24|>note 24, supra, and see Ng Fung Ho v.
White, 259 U. S. 276 .

															[ Footnote 3/26 ]

															Thus, in some cases, review and enforcement are concentrated
exclusively in the same court. Cf. National Labor
Relations Act, 49 Stat. 449, 29 U.S.C. § 151 et seq., giving the circuit courts of appeal exclusive jurisdiction to
review and enforce the board's orders, to which no penalty attaches
until the board has sought and obtained an order from the court for
enforcement. With this done, there is no danger the individual will
be sentenced for crime for failure to comply with an invalid order.
And there is none that the court will be called upon to lend its
hand in enforcing an unconstitutional edict or, for that matter,
one merely in excess of statutory authority. Likewise, when there
is provision for stay or suspension of the order pending
determination of its validity, e.g., the Securities Act of
1933, 48 Stat. 81, 15 U.S.C. § 77i; the Securities Exchange Act of
1934, 48 Stat. 902, 15 U.S.C. § 78y; the Public Utility Holding
Company Act of 1935, 49 Stat. 835, 15 U.S.C. § 79x. And this is
true where the enforcing court is not forbidden to consider the
validity of the order, a prohibition entirely novel to the
Emergency Price Control Act.

															[ Footnote 3/27 ] Cf. Wadley Southern Ry. Co. v. Georgia, 235 U.
S. 651 , and authorities cited. I n notable instances,
also, where no specific provision has been made for either judicial
review or avoiding the irrevocable impact of possibly invalid
administrative action, and review has not been expressly denied,
the courts have been ready to find means for review and for
averting the impact of the penalty until it has been had. E.g.,
Ex parte Young, 209 U. S. 123 ; cf. Southern Ry. Co. v. Virginia, 290 U.
S. 190 .

															[ Footnote 3/28 ] Cf. McAllister, op. cit. supra, 321
U.S. 414 fn3/20|>note 20, and 321
U.S. 414 fn3/26|>note 26 supra. [ Footnote 3/29 ]

															Apparently it is contemplated that the "affidavits or other
written evidence" submitted in support of the objections be filed
with the protest, though later submissions may be made at times and
under regulations prescribed by the administrator, or when ordered
by the Emergency Court, or to that court when the administrator
requests. §§ 203(a), 204(a). The administrator is authorized to
permit filing of protest after the sixty days have expired solely
on grounds arising after that time. § 203(a). He is required to
grant or deny the protest, in whole or in part, notice the protest
for a hearing, or provide an opportunity to present further
evidence, within thirty days after the protest is filed or ninety
days after issuance of the regulation or order, or, in the case of
a price schedule, ninety days from the effective date, whichever
occurs later. Ibid. [ Footnote 3/30 ] Cf. 321
U.S. 414 fn3/29|>note 29 supra. In the Emergency
Court of Appeals, "no objection to [the] regulation . . . , and no
evidence in support of any objection thereto, shall be considered .
. . unless such objection" has been set forth in the protest or
such evidence is in the transcript. Additional evidence can be
admitted only if it was

															"either offered to the Administrator and not admitted [by him]
or . . . could not reasonably have been offered to . . . or
included by the Administrator in such proceedings."

															In that case, it is to be presented to the administrator,
received by him, and certified to the court together with any
modification he may make in the regulation. Where the administrator
so requests, however, such additional evidence "shall be presented
directly to the court." § 204(a).

															[ Footnote 3/31 ] Cf. 321
U.S. 414 fn3/14|>note 14 supra. [ Footnote 3/32 ]

															That is true whether the infraction occurs before or after the
time for protest or appeal has passed and, it would seem,
notwithstanding the protestant may proceed with all diligence. The
statute makes no provision for relieving from its penal sanctions
one who follows the protest procedure to the end in case the
protest eventually is sustained, if meanwhile he disobeys the
order. Punishment is not made dependent on or required to await the
outcome of that proceeding. Rather, the enforcing court is
commanded not to consider validity. The command is unqualified,
unvarying, and universal. It is cast in the compelling terms of
"jurisdiction." Under the statute's provisions, it applies as much
when trial and conviction occur before the Emergency Court's
decision is final as afterwards.

															[ Footnote 3/33 ] Cf. Bradley v. Richmond, 227 U.
S. 477 , which involved a state prosecution for violating
a state law. In affirming the conviction, this Court rejected the
contention that the administrative determination on which
prosecution rested was unconstitutional. But it would not follow
from the fact a state might thus condition its criminal proceedings
consistently with the Fourteenth Amendment's requirement of due
process that Congress can do likewise for federal criminal trials. Cf. infra, 321 U. S. Wadley Southern Ry. Co. v. Georgia supra, also involved a
state suit for civil penalty for violation of a state
administrative order, to which the limitations of the Sixth
Amendment would not apply. The dicta which the Court regards as
pointing to the validity of the procedure here do not sustain it,
not only for this reason, but because the special procedure was
different, did not purport to foreclose defense to enforcement if
not followed, and expressly asserted that, if followed, penalty
could be imposed only for violations taking place after the order
was adjudicated valid, not beforehand. This case involves the very
risk the Court there said could not be imposed.

															Other instances relied on by the Court involve only civil, not
criminal, consequences, or distinguishable instances of criminal
prosecution, and therefore have no conclusive bearing here. As the
Court seems to recognize, the question now presented was not
presented or considered in Armour Packing Co. v. United
States, 209 U. S. 56 , or in United States v. Adams Express Co., 229 U.
S. 381 . And it was not involved or determined in the
cited decisions, either here or in the inferior federal courts,
dealing with carriers who violate tariffs framed and filed by
themselves and thereby become subject to penalty. The same is true
of the cases holding that threatened criminal prosecution for
violation of administrative orders cannot be enjoined.

															In these decisions, none of the statutes forbade the enforcing
court "to consider the validity" of the orders, none afforded a
special proceeding so summary as that provided here, and only United States v. Vacuum Oil Co., 158 F. 536, raised a
constitutional question relevant here. Falbo v. United
States, 320 U. S. 549 ,
involved a different procedure and a different and more urgent
problem. Compare 321 U. S. @ It
may be doubted the decision's effect is to preclude the enforcing
court from examining constitutional questions affecting the order's
validity.

															[ Footnote 3/34 ]

															Nor, according to accepted notions of the criminal process, has
it ever been contemplated that some of the issues of fact should be
provable by confrontation of witnesses, and others by written
evidence only, when other evidence is or may be available. If, for
instance, Congress should define an act as a crime, but should
require that, in the trial, issues relating to the validity of the
law furnishing the basis for the charge should be proven only by
affidavit, though others by the normal processes of proof, the
proceeding hardly could be held to comport with the kind of trial
the Constitution, and, more particularly, the Sixth Amendment,
require. And if Congress should go further and provide for
determination of the issues triable only by affidavit in a court or
other body sitting elsewhere than in the state and district of the
crime, with other issues triable before a court with a jury
empaneled there, but with that court compelled to give finality to
the other's findings against the accused, the departure from
constitutional requirements would seem to be only the more obvious.
This is not far in effect, if it is at all, from what has been done
here.

															[ Footnote 3/35 ]

															His only remedy is to begin a new protest proceeding (§ 203(a)),
which is not only as limited in character as the original one, but,
under the administrator's procedural regulations, must be "filed
within . . . sixty days after the protestant has had, or could
reasonably have had, notice" of the changed facts. Revised
Procedural Regulation 1, § 1300.26. Cf. notes 321
U.S. 414 fn3/29|>29, 321
U.S. 414 fn3/30|>30 supra. [ Footnote 3/36 ] Cf. 321
U.S. 414 fn3/22|>note 22 supra. [ Footnote 3/37 ] Compare Johnson v. Zerbst, 304 U.
S. 458 ; Glasser v. United States, 315 U. S.
60 ; with Patton v. United States, 281 U.
S. 276 ; Adams v. United States ex rel. McCann, 317 U. S. 269 .

															[ Footnote 3/38 ] Cf. 321
U.S. 414 fn3/41|>note 41 infra. [ Footnote 3/39 ] Cf. McLaren, Can a Trial Court of the United States Be
Completely Deprive of the Power to Determine Constitutional
Questions? (1944) 30 A.B.A.J. 17.

															[ Footnote 3/40 ]

															That burden is heavy, as this case illustrates. Petitioners
attacked the regulation's constitutionality on the ground that, by
compelling them to sell at prices less than cost, it deprived them
of their property without due process of law. And, on the same
ground, they urged the regulation violates the statute's
requirement that the price fixed allow margins which are "generally
fair and equitable." But the Fifth Amendment does not insure a
profit to any given individual or group not under legal compulsion
to render service, where doing so would contravene an enacted
policy of Congress sustainable on a balance of public necessity and
private hardship. Cf. the Court's opinion herein and
authorities cited; also Bowles v. Willingham, post, p. 321 U. S. 503 .
And, in this case, both the statute's basic purpose and its terms,
as well as the legislative history, cf. Sen.Rep. No. 931,
77th Cong., 2d Sess., 15, show that Congress intended to forbid
only a price so low that the trade in general, not merely some
individual dealers or groups, could not have the margin prescribed. Bowles v. Willingham, supra. Petitioners' offers of proof,
in this respect, which the trial court rejected, went only to show
that they, or at most the meat wholesalers of Boston, could sell
beef only at a loss. Harsh as this may seem in individual
instances, it was Congress' judgment that the interests of dealers
who could not operate profitably at a level of prices permitting a
fair margin generally to the trade would have to give way, in the
acute prevailing circumstances, to the paramount national necessity
of keeping prices stabilized, and that judgment, by virtue of those
circumstances, was for Congress to make. Accordingly, the tendered
proof hardly was sufficient to raise an issue of confiscation
giving ground for setting aside the regulation.

															It is likely that by far the greater number of challenges would
arise on grounds of supposed confiscation, in which this burden
would have to be met. Once it is made clear just what that burden
is, the fear hardly seems justified that enforcement would swamp
the agency with litigation. In any event, the remedy for that would
be by providing a more adequate enforcing staff, not by cutting off
defense to criminal prosecutions based on invalid orders.

															[ Footnote 3/41 ] Cf. concurring opinion in Bowles v. Willingham,
post, p. 321 U. S. 503 .
Limitations applicable solely to criminal proceedings fall to one
side. Giving the decision in the special proceeding, or failure to
seek it after reasonable opportunity, the effect of res
judicata in later civil proceedings does not therefore deprive
the party affected of opportunity for full and adequate defense in
his criminal trial, where not only his rights of property, but his
liberty or his life, may be at stake.

															However widely the character of the special remedy may be varied
to meet different urgencies, with consequences of foreclosure for
civil effects, the foreclosure of criminal defense should be
allowed, if at all, only by a procedure affording its substantial
equivalent, in relation to special constitutional issues and in
such a manner that the failure to follow it reasonably could be
taken as an actual, not a forced waiver. Thus, possibly foreclosure
of criminal defense could be sustained, when validity turns on
complex economic questions, usually of confiscatory effects of
legislation, and proof of complicated facts bearing on them. But,
if so, this should be only when the special proceeding is clearly
adequate, affording the usual rights to present evidence,
cross-examine, and make argument, characteristic of judicial
proceedings, so that, if followed, the party would have a
substantial equivalent to defense in a criminal trial. And the
opportunity should be long enough so that the failure to take it
reasonably could be taken to mean that the party intends, by not
taking it, to waive the question actually and not by forced
surrender. So safeguarded, the foreclosure of such questions in
this way would not work a substantial deprivation of defense.

															In respect to other questions, such as the drawing of racial or
religious lines in orders or by their application, of a character
determinable as well by the criminal as by the special tribunal, in
my opinion, the special constitutional limitations applicable to
federal criminal trials, and due enforcement of some substantive
requirements as well, require keeping open and available the chance
for full and complete defense in the criminal trial itself.