U.S. Supreme Court United States v. Curtiss-Wright Export
Corp., 299
U.S. 304 (1936) United States v. Curtiss-Wright
Export Corp. No. 98 Argued November 19, 20,
1936 Decided December 21,
1936 299
U.S. 304 APPEAL FROM THE DISTRICT COURT OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW
YORK Syllabus 1. A Joint Resolution of May 28, 1934, provided:

															"That if the President finds that the prohibition of the sale of
arms and munitions of war in the United States to those countries
now engaged in armed conflict in the Chaco may contribute to the
reestablishment of peace between those countries, and if, after
consultation with the governments of other American Republics and
with their cooperation, as well as that of such other governments
as he may deem necessary, he makes proclamation to that effect, it
shall be unlawful to sell, except under such limitations and
exceptions as the President prescribes, any arms or munitions of
war in any place in the United States to the countries now engaged
in that armed conflict, or to any person, company, or association
acting in the interest of either country, until otherwise ordered
by the President or by Congress."

															Violation was made punishable as a Page 310 U. S. 305 crime. The President issued two proclamations, one on the date
of the Resolution, putting it into operation, the other on November
14, 1935, revoking the first proclamation. Held: (1) The Joint Resolution is not an unconstitutional delegation
of legislative power to the Executive. Pp. 299 U. S. 314 , 299 U. S.
329 .

															(2) The powers of the Federal Government over foreign or
external affairs differ in nature and origin from those over
domestic or internal affairs. P. 299 U. S.
315 .

															(3) The broad statement that the Federal Government can exercise
no powers except those specifically enumerated in the Constitution,
and such implied powers as are necessary and proper to carry into
effect the enumerated powers, is categorically true only in respect
of our internal affairs. In that field, the primary purpose of the
Constitution was to carve from the general mass of legislative
powers then possessed by the States such portions as it was thought
desirable to vest in the Federal Government, leaving those not
included in the enumeration still in the States. Id. (4) The States severally never possessed international powers.
P. 299 U. S.
316 .

															(5) As a result of the separation from Great Britain by the
Colonies, acting as a unit, the powers of external sovereignty
passed from the Crown not to the Colonies severally, but to the
Colonies in their collective and corporate capacity as the United
States of America. Id. (6) The Constitution was ordained and established, among other
things, to form "a more perfect Union." Prior to that event, the
Union, declared by the Articles of Confederation to be "perpetual,"
was the sole possessor of external sovereignty, and in the Union it
remained without change save insofar as the Constitution, in
express terms, qualified its exercise. Though the States were
several, their people, in respect of foreign affairs, were one. P. 299 U. S.
317 .

															(7) The investment of the Federal Government with the powers of
external sovereignty did not depend upon the affirmative grants of
the Constitution. P. 299 U. S.
318 .

															(8) In the international field, the sovereignty of the United
States is complete. Id. (9) In international relations, the President is the sole organ
of the Federal Government. P. 299 U. S.
319 .

															(10) In view of the delicacy of foreign relations and of the
power peculiar to the President in this regard, Congressional
legislation which is to be made effective in the international
field must Page 299 U. S. 306 often accord to him a degree of discretion and freedom which
would not be admissible were domestic affairs alone involved. P. 299 U. S.
319 .

															(11) The marked difference between foreign and domestic affairs
in this respect is recognized in the dealings of the houses of
Congress with executive departments. P. 299 U. S.
321 .

															(12) Unbroken legislative practice from the inception almost of
the national government supports the conclusion that the Joint
Resolution, supra, is not an unconstitutional delegation
of power. P. 299 U. S.
322 .

															(13) Findings of jurisdictional facts in the first proclamation,
following the language of the Joint Resolution, were sufficient. P. 299 U. S.
330 .

															(14) The revocation of the first proclamation by the second did
not have the effect of abrogating the Resolution or of precluding
its enforcement by prosecution and punishment of offenses committed
during the life of the first proclamation. P. 299 U. S.
331 .

															2. Upon an appeal by the United States under the Criminal
Appeals Act from a decision holding an indictment bad on demurrer,
this Court has jurisdiction of questions involving the validity of
the statute on which the indictment was founded which were decided
by the District Court in favor of the United States. P. 299 U. S.
329 . 14 F.
Supp. 230 , reversed.

															APPEAL, under the Criminal Appeals Act, from a judgment quashing
an indictment for conspiracy. Page 299 U. S. 311 MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

															On January 27, 1936, an indictment was returned in the court
below, the first count of which charges that appellees, beginning
with the 29th day of May, 1934, conspired to sell in the United
States certain arms of war, namely fifteen machine guns, to
Bolivia, a country then engaged in armed conflict in the Chaco, in
violation of the Joint Resolution of Congress approved May 28,
1934, and the provisions of a proclamation issued on the same day
by the President of the United States pursuant to authority
conferred by § 1 of the resolution. In pursuance of the conspiracy,
the commission of certain overt acts was alleged, details of which
need not be stated. The Joint Resolution (c. 365, 48 Stat. 811)
follows: Page 299 U. S. 312 " Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That if the
President finds that the prohibition of the sale of arms and
munitions of war in the United States to those countries now
engaged in armed conflict in the Chaco may contribute to the
reestablishment of peace between those countries, and if after
consultation with the governments of other American Republics and
with their cooperation, as well as that of such other governments
as he may deem necessary, he makes proclamation to that effect, it
shall be unlawful to sell, except under such limitations and
exceptions as the President prescribes, any arms or munitions of
war in any place in the United States to the countries now engaged
in that armed conflict, or to any person, company, or association
acting in the interest of either country, until otherwise ordered
by the President or by Congress."

															"Sec. 2. Whoever sells any arms or munitions of war in violation
of section 1 shall, on conviction, be punished by a fine not
exceeding $10,000 or by imprisonment not exceeding two years, or
both."

															The President's proclamation (48 Stat. 1744), after reciting the
terms of the Joint Resolution, declares:

															"Now, therefore, I, Franklin D. Roosevelt, President of the
United States of America, acting under and by virtue of the
authority conferred in me by the said joint resolution of Congress,
do hereby declare and proclaim that I have found that the
prohibition of the sale of arms and munitions of war in the United
States to those countries now engaged in armed conflict in the
Chaco may contribute to the reestablishment of peace between those
countries, and that I have consulted with the governments of other
American Republics and have been assured of the cooperation of such
governments as I have deemed necessary as contemplated by the said
joint resolution, and I do hereby admonish all citizens of the Page 299 U. S. 313 United States and every person to abstain from every violation
of the provisions of the joint resolution above set forth, hereby
made applicable to Bolivia and Paraguay, and I do hereby warn them
that all violations of such provisions will be rigorously
prosecuted."

															"And I do hereby enjoin upon all officers of the United States
charged with the execution of the laws thereof the utmost diligence
in preventing violations of the said joint resolution and this my
proclamation issued thereunder, and in bringing to trial and
punishment any offenders against the same."

															"And I do hereby delegate to the Secretary of State the power of
prescribing exceptions and limitations to the application of the
said joint resolution of May 28, 1934, as made effective by this my
proclamation issued thereunder."

															On November 14, 1935, this proclamation was revoked (49 Stat.
3480), in the following terms:

															"Now, therefore, I, Franklin D. Roosevelt, President of the
United States of America, do hereby declare and proclaim that I
have found that the prohibition of the sale of arms and munitions
of war in the United States to Bolivia or Paraguay will no longer
be necessary as a contribution to the reestablishment of peace
between those countries, and the above-mentioned Proclamation of
May 28, 1934, is hereby revoked as to the sale of arms and
munitions of war to Bolivia or Paraguay from and after November 29,
1935, provided, however, that this action shall not have the effect
of releasing or extinguishing any penalty, forfeiture or liability
incurred under the aforesaid Proclamation of May 28, 1934, or the
Joint Resolution of Congress approved by the President on the same
date, and that the said Proclamation and Joint Resolution shall be
treated as remaining in force for the purpose of sustaining any
proper action or prosecution for the enforcement of such penalty,
forfeiture or liability. " Page 299 U. S. 314 Appellees severally demurred to the first count of the
indictment on the grounds (1) that it did not charge facts
sufficient to show the commission by appellees of any offense
against any law of the United States; (2) that this count of the
indictment charges a conspiracy to violate the joint resolution and
the Presidential proclamation, both of which had expired according
to the terms of the joint resolution by reason of the revocation
contained in the Presidential proclamation of November 14, 1935,
and were not in force at the time when the indictment was found.
The points urged in support of the demurrers were, first, that the
joint resolution effects an invalid delegation of legislative power
to the executive; second, that the joint resolution never became
effective, because of the failure of the President to find
essential jurisdictional facts, and third, that the second
proclamation operated to put an end to the alleged liability under
the joint resolution.

															The court below sustained the demurrers upon the first point,
but overruled them on the second and third points. 14 F. Supp.
230 . The government appealed to this court under the provisions
of the Criminal Appeals Act of March 2, 1907, 34 Stat. 1246, as
amended, U.S.C. Title 18, § 682. That act authorizes the United
States to appeal from a district court direct to this court in
criminal cases where, among other things, the decision sustaining a
demurrer to the indictment or any count thereof is based upon the
invalidity or construction of the statute upon which the indictment
is founded. First. It is contended that, by the Joint Resolution,
the going into effect and continued operation of the resolution was
conditioned (a) upon the President's judgment as to its beneficial
effect upon the reestablishment of peace between the countries
engaged in armed conflict in the Chaco; (b) upon the making of a
proclamation, Page 299 U. S. 315 which was left to his unfettered discretion, thus constituting
an attempted substitution of the President's will for that of
Congress; (c) upon the making of a proclamation putting an end to
the operation of the resolution, which again was left to the
President's unfettered discretion, and (d) further, that the extent
of its operation in particular cases was subject to limitation and
exception by the President, controlled by no standard. In each of
these particulars, appellees urge that Congress abdicated its
essential functions and delegated them to the Executive.

															Whether, if the Joint Resolution had related solely to internal
affairs, it would be open to the challenge that it constituted an
unlawful delegation of legislative power to the Executive we find
it unnecessary to determine. The whole aim of the resolution is to
affect a situation entirely external to the United States and
falling within the category of foreign affairs. The determination
which we are called to make, therefore, is whether the Joint
Resolution, as applied to that situation, is vulnerable to attack
under the rule that forbids a delegation of the lawmaking power. In
other words, assuming (but not deciding) that the challenged
delegation, if it were confined to internal affairs, would be
invalid, may it nevertheless be sustained on the ground that its
exclusive aim is to afford a remedy for a hurtful condition within
foreign territory?

															It will contribute to the elucidation of the question if we
first consider the differences between the powers of the federal
government in respect of foreign or external affairs and those in
respect of domestic or internal affairs. That there are differences
between them, and that these differences are fundamental, may not
be doubted.

															The two classes of powers are different both in respect of their
origin and their nature. The broad statement that the federal
government can exercise no powers except Page 299 U. S. 316 those specifically enumerated in the Constitution, and such
implied powers as are necessary and proper to carry into effect the
enumerated powers, is categorically true only in respect of our
internal affairs. In that field, the primary purpose of the
Constitution was to carve from the general mass of legislative
powers then possessed by the states such portions as it was thought
desirable to vest in the federal government, leaving those not
included in the enumeration still in the states. Carter v.
Carter Coal Co., 298 U. S. 238 , 298 U. S. 294 .
That this doctrine applies only to powers which the states had is
self-evident. And since the states severally never possessed
international powers, such powers could not have been carved from
the mass of state powers, but obviously were transmitted to the
United States from some other source. During the colonial period,
those powers were possessed exclusively by, and were entirely under
the control of, the Crown. By the Declaration of Independence, "the
Representatives of the United States of America" declared the
United [not the several] Colonies to be free and independent
states, and, as such, to have

															"full Power to levy War, conclude Peace, contract Alliances,
establish Commerce, and to do all other Acts and Things which
Independent States may of right do."

															As a result of the separation from Great Britain by the
colonies, acting as a unit, the powers of external sovereignty
passed from the Crown not to the colonies severally, but to the
colonies in their collective and corporate capacity as the United
States of America. Even before the Declaration, the colonies were a
unit in foreign affairs, acting through a common agency -- namely
the Continental Congress, composed of delegates from the thirteen
colonies. That agency exercised the powers of war and peace, raised
an army, created a navy, and finally adopted the Declaration of
Independence. Rulers come and go; governments end, and forms of
government change; but sovereignty survives. A political society
cannot endure Page 299 U. S. 317 without a supreme will somewhere. Sovereignty is never held in
suspense. When, therefore, the external sovereignty of Great
Britain in respect of the colonies ceased, it immediately passed to
the Union. See Penhallow v.
Doane , 3 Dall. 54, 80-81 [argument of counsel --
omitted]. That fact was given practical application almost at once.
The treaty of peace, made on September 23, 1783, was concluded
between his Brittanic Majesty and the "United States of America." 8
Stat. -- European Treaties -- 80.

															The Union existed before the Constitution, which was ordained
and established, among other things, to form "a more perfect
Union." Prior to that event, it is clear that the Union, declared
by the Articles of Confederation to be "perpetual," was the sole
possessor of external sovereignty, and in the Union it remained
without change save insofar as the Constitution, in express terms,
qualified its exercise. The Framers' Convention was called, and
exerted its powers upon the irrefutable postulate that, though the
states were several, their people, in respect of foreign affairs,
were one. Compare The Chinese Exclusion Case, 130 U.
S. 581 , 130 U. S. 604 , 130 U. S. 606 .
In that convention, the entire absence of state power to deal with
those affairs was thus forcefully stated by Rufus King:

															"The states were not 'sovereigns' in the sense contended for by
some. They did not possess the peculiar features of sovereignty --
they could not make war, nor peace, nor alliances, nor treaties.
Considering them as political beings, they were dumb, for they
could not speak to any foreign sovereign whatever. They were deaf,
for they could not hear any propositions from such sovereign. They
had not even the organs or faculties of defence or offence, for
they could not ,of themselves, raise troops, or equip vessels, for
war."

															5 Elliott's Debates 212. [ Footnote 1 ] Page 299 U. S. 318 It results that the investment of the federal government with
the powers of external sovereignty did not depend upon the
affirmative grants of the Constitution. The powers to declare and
wage war, to conclude peace, to make treaties, to maintain
diplomatic relations with other sovereignties, if they had never
been mentioned in the Constitution, would have vested in the
federal government as necessary concomitants of nationality.
Neither the Constitution nor the laws passed in pursuance of it
have any force in foreign territory unless in respect of our own
citizens ( see American Banana Co. v. United Fruit Co., 213 U. S. 347 , 213 U. S.
356 ), and operations of the nation in such territory
must be governed by treaties, international understandings and
compacts, and the principles of international law. As a member of
the family of nations, the right and power of the United States in
that field are equal to the right and power of the other members of
the international family. Otherwise, the United States is not
completely sovereign. The power to acquire territory by discovery
and occupation ( Jones v. United States, 137 U.
S. 202 , 137 U. S.
212 ), the power to expel undesirable aliens ( Fong
Yue Ting v. United States, 149 U. S. 698 , 149 U. S. 705 et seq. ), the power to make such international agreements
as do not constitute treaties in the constitutional sense
( Altman & Co. v. United States, 224 U.
S. 583 , 224 U. S.
600 -601; Crandall, Treaties, Their Making and
Enforcement,2d ed., p. 102 and note 1), none of which is expressly
affirmed by the Constitution, nevertheless exist as inherently
inseparable from the conception of nationality. This the court
recognized, and, in each of the cases cited, found the warrant for
its conclusions not in the provisions of the Constitution, but in
the law of nations.

															In Burnet v. Brooks, 288 U. S. 378 , 288 U. S. 396 ,
we said,

															"As a nation with all the attributes of sovereignty, the United
States is vested with all the powers of government necessary to
maintain an effective control of international relations." Cf. Carter v. Carter Coal Co., supra, p. 298 U. S.
295 . Page 299 U. S. 319 Not only, as we have shown, is the federal power over external
affairs in origin and essential character different from that over
internal affairs, but participation in the exercise of the power is
significantly limited. In this vast external realm, with its
important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and
consent of the Senate; but he alone negotiates. Into the field of
negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. As Marshall said in his great argument of
March 7, 1800, in the House of Representatives, "The President is
the sole organ of the nation in its external relations, and its
sole representative with foreign nations." Annals, 6th Cong., col.
613. The Senate Committee on Foreign Relations, at a very early day
in our history (February 15, 1816), reported to the Senate, among
other things, as follows:

															"The President is the constitutional representative of the
United States with regard to foreign nations. He manages our
concerns with foreign nations, and must necessarily be most
competent to determine when, how, and upon what subjects
negotiation may be urged with the greatest prospect of success. For
his conduct, he is responsible to the Constitution. The committee
consider this responsibility the surest pledge for the faithful
discharge of his duty. They think the interference of the Senate in
the direction of foreign negotiations calculated to diminish that
responsibility, and thereby to impair the best security for the
national safety. The nature of transactions with foreign nations,
moreover, requires caution and unity of design, and their success
frequently depends on secrecy and dispatch."

															U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p
24.

															It is important to bear in mind that we are here dealing not
alone with an authority vested in the President by an Page 299 U. S. 320 exertion of legislative power, but with such an authority plus
the very delicate, plenary and exclusive power of the President as
the sole organ of the federal government in the field of
international relations -- a power which does not require as a
basis for its exercise an act of Congress but which, of course,
like every other governmental power, must be exercised in
subordination to the applicable provisions of the Constitution. It
is quite apparent that if, in the maintenance of our international
relations, embarrassment -- perhaps serious embarrassment -- is to
be avoided and success for our aims achieved, congressional
legislation which is to be made effective through negotiation and
inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory
restriction which would not be admissible were domestic affairs
alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has his
confidential sources of information. He has his agents in the form
of diplomatic, consular and other officials. Secrecy in respect of
information gathered by them may be highly necessary, and the
premature disclosure of it productive of harmful results. Indeed,
so clearly is this true that the first President refused to accede
to a request to lay before the House of Representatives the
instructions, correspondence and documents relating to the
negotiation of the Jay Treaty -- a refusal the wisdom of which was
recognized by the House itself, and has never since been doubted.
In his reply to the request, President Washington said:

															"The nature of foreign negotiations requires caution, and their
success must often depend on secrecy, and even when brought to a
conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or contemplated
would be extremely Page 299 U. S. 321 impolitic, for this might have a pernicious influence on future
negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of
making treaties in the President, with the advice and consent of
the Senate, the principle on which that body was formed confining
it to a small number of members. To admit, then, a right in the
House of Representatives to demand and to have as a matter of
course all the papers respecting a negotiation with a foreign power
would be to establish a dangerous precedent."

															1 Messages and Papers of the Presidents, p. 194.

															The marked difference between foreign affairs and domestic
affairs in this respect is recognized by both houses of Congress in
the very form of their requisitions for information from the
executive departments. In the case of every department except the
Department of State, the resolution directs the official to furnish
the information. In the case of the State Department, dealing with
foreign affairs, the President is requested to furnish the
information "if not incompatible with the public interest." A
statement that to furnish the information is not compatible with
the public interest rarely, if ever, is questioned.

															When the President is to be authorized by legislation to act in
respect of a matter intended to affect a situation in foreign
territory, the legislator properly bears in mind the important
consideration that the form of the President's action or, indeed,
whether he shall act at all -- may well depend, among other things,
upon the nature of the confidential information which he has or may
thereafter receive, or upon the effect which his action may have
upon our foreign relations. This consideration, in connection with
what we have already said on the subject, discloses the unwisdom of
requiring Congress in this field Page 299 U. S. 322 of governmental power to lay down narrowly definite standards by
which the President is to be governed. As this court said in Mackenzie v. Hare, 239 U. S. 299 , 239 U. S.
311 ,

															"As a government, the United States is invested with all the
attributes of sovereignty. As it has the character of nationality,
it has the powers of nationality, especially those which concern
its relations and intercourse with other countries. We should
hesitate long before limiting or embarrassing such
powers. "

															(Italics supplied.)

															In the light of the foregoing observations, it is evident that
this court should not be in haste to apply a general rule which
will have the effect of condemning legislation like that under
review as constituting an unlawful delegation of legislative power.
The principles which justify such legislation find overwhelming
support in the unbroken legislative practice which has prevailed
almost from the inception of the national government to the present
day.

															Let us examine, in chronological order, the acts of legislation
which warrant this conclusion:

															The Act of June 4, 1794, authorized the President to lay,
regulate and revoke embargoes. He was "authorized," "whenever, in
his opinion, the public safety shall so require," to lay the
embargo upon all ships and vessels in the ports of the United
States, including those of foreign nations "under such regulations
as the circumstances of the case may require, and to continue or
revoke the same, whenever he shall think proper." C. 41, 1 Stat.
372. A prior joint resolution of May 7, 1794 (1 Stat. 401), had
conferred unqualified power on the President to grant
clearances, notwithstanding an existing embargo, to ships or
vessels belonging to citizens of the United States bound to any
port beyond the Cape of Good Hope.

															The Act of March 3, 1795 (c. 53, 1 Stat. 444), gave the
President authority to permit the exportation of arms, cannon and
military stores, the law prohibiting such exports Page 299 U. S. 323 to the contrary notwithstanding, the only prescribed guide for
his action being that such exports should be in "cases connected
with the security of the commercial interest of the United States,
and for public purposes only."

															By the Act of June 13, 1798 (c. 53, § 5, 1 Stat. 566), it was
provided that, if the government of France "shall clearly disavow,
and shall be found to refrain from the aggressions, depredations
and hostilities" theretofore maintained against vessels and
property of the citizens of the United States

															"in violation of the faith of treaties, and the laws of nations,
and shall thereby acknowledge the just claims of the United States
to be considered as in all respects neutral, . . . it shall be
lawful for the President of the United States, being well
ascertained of the premises, to remit and discontinue the
prohibitions and restraints hereby enacted and declared, and he
shall be, and is hereby, authorized to make proclamation thereof
accordingly."

															By § 4 of the Act of February 9, 1799 (c. 2, 1 Stat. 615), it
was made "lawful" for the President, "if he shall deem it expedient
and consistent with the interest of the United States," by order to
remit certain restraints and prohibitions imposed by the act with
respect to the French Republic, and also to revoke any such order
"whenever, in his opinion, the interest of the United States shall
require."

															Similar authority, qualified in the same way, was conferred by §
6 of the Act of February 7, 1800, c. 10, 2 Stat. 9.

															Section 5 of the Act of March 3, 1805 (c. 41, 2 Stat. 341), made
it lawful for the President, whenever an armed vessel entering the
harbors or waters within the jurisdiction of the United States and
required to depart therefrom should fail to do so, not only to
employ the land and naval forces to compel obedience, but,

															"if he Page 299 U. S. 324 shall think it proper, it shall be lawful for him to forbid, by
proclamation, all intercourse with such vessel, and with every
armed vessel of the same nation, and the officers and crew thereof;
to prohibit all supplies and aid from being furnished them"

															and to do various other things connected therewith. Violation of
the President's proclamation was penalized.

															On February 28, 1806, an act was passed (c. 9, 2 Stat. 351) to
suspend commercial intercourse between the United States and
certain parts of the Island of St. Domingo. A penalty was
prescribed for its violation. Notwithstanding the positive
provisions of the act, it was, by § 5, made "lawful" for the
President to remit and discontinue the restraints and prohibitions
imposed by the act at any time "if he shall deem it expedient and
consistent with the interests of the United States" to do so.
Likewise in respect of the Non-intercourse Act of March 1, 1809,
(c. 24, 2 Stat. 528), the President was "authorized" (§ 11, p.
530), in case either of the countries affected should so revoke or
modify her edicts "as that they shall cease to violate the neutral
commerce of the United States," to proclaim the fact, after which
the suspended trade might be renewed with the nation so doing.

															Practically every volume of the United States Statutes contains
one or more acts or joint resolutions of Congress authorizing
action by the President in respect of subjects affecting foreign
relations, which either leave the exercise of the power to his
unrestricted judgment or provide a standard far more general than
that which has always been considered requisite with regard to
domestic affairs. Many, though not all, of these acts are
designated in the footnote. [ Footnote 2 ] Page 299 U. S. 325 It well may be assumed that these legislative precedents were in
mind when Congress passed the joint resolutions of April 22, 1898,
30 Stat. 739; March 14, 1912, 37 Stat. 630, and January 31, 1922,
42 Stat. 361, to prohibit the export of coal or other war material.
The resolution of 1898 authorized the President "in his discretion,
and with such limitations and exceptions as shall seem to him
expedient" to prohibit such exportations. The striking identity of
language found in the second resolution mentioned above and in the
one now under review will be Page 299 U. S. 326 seen upon comparison. The resolution of March 14, 1912,
provides:

															"That whenever the President shall find that, in any American
country, conditions of domestic violence exist which are promoted
by the use of arms or munitions of war procured from the United
States, and shall make proclamation thereof, it shall be unlawful
to export except under such limitations and exceptions as the
President Page 299 U. S. 327 shall prescribe any arms or munitions of war from any place in
the United States to such country until otherwise ordered by the
President or by Congress."

															"SEC. 2. That any shipment of material hereby declared unlawful
after such a proclamation shall be punishable by fine not exceeding
ten thousand dollars, or imprisonment not exceeding two years, or
both."

															The third resolution is in substantially the same terms, but
extends to any country in which the United States exercises
extraterritorial jurisdiction, and provides for the President's
action not only when conditions of domestic violence exist which
are promoted, but also when such conditions may be promoted by the
use of such arms or munitions of war.

															We had occasion to review these embargo and kindred acts in
connection with an exhaustive discussion of the general subject of
delegation of legislative power in a recent case, Panama
Refining Co. v. Ryan, 293 U. S. 388 , 293 U. S.
421 -422, and, in justifying such acts, pointed out that
they confided to the President "an authority which was cognate to
the conduct by him of the foreign relations of the government."

															The result of holding that the joint resolution here under
attack is void and unenforceable as constituting an unlawful
delegation of legislative power would be to stamp this multitude of
comparable acts and resolutions as likewise invalid. And while this
court may not, and should not, hesitate to declare acts of
Congress, however many times repeated, to be unconstitutional if
beyond all rational doubt it finds them to be so, an impressive
array of legislation such as we have just set forth, enacted by
nearly every Congress from the beginning of our national existence
to the present day, must be given unusual weight in the process of
reaching a correct determination of the problem. A legislative
practice such as we have here, evidenced not by only occasional
instances Page 299 U. S. 328 but marked by the movement of a steady stream for a century and
a half of time, goes a long way in the direction of proving the
presence of unassailable ground for the constitutionality of the
practice, to be found in the origin and history of the power
involved, or in its nature, or in both combined.

															In The Laura, 114 U. S. 411 , 114 U. S. 416 ,
this court answered a challenge to the constitutionality of a
statute authorizing the Secretary of the Treasury to remit or
mitigate fines and penalties in certain cases, by repeating the
language of a very early case ( Stuart v.
Laird , 1 Cranch 299, 5
U. S. 309 ) that the long practice and acquiescence under
the statute was a

															"practical exposition . . . too strong and obstinate to be
shaken or controlled. Of course, the question is at rest, and ought
not now to be disturbed."

															In Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53 , 111 U. S. 57 ,
the constitutionality of R.S. § 4952, conferring upon the author,
inventor, designer or proprietor of a photograph certain rights,
was involved. Mr. Justice Miller, speaking for the court, disposed
of the point by saying:

															"The construction placed upon the Constitution by the first act
of 1790, and the act of 1802, by the men who were contemporary with
its formation, many of whom were members of the convention which
framed it, is, of itself, entitled to very great weight, and when
it is remembered that the rights thus established have not been
disputed during a period of nearly a century, it is almost
conclusive."

															In Field v. Clark, 143 U. S. 649 , 143 U. S. 691 ,
this court declared that

															". . . the practical construction of the Constitution, as given
by so many acts of Congress, and embracing almost the entire period
of our national existence, should not be overruled unless upon a
conviction that such legislation was clearly incompatible with the
supreme law of the land."

															The rule is one which has been stated and applied many times by
this court. As examples, see Page 299 U. S. 329 Ames v. Kansas, 111 U. S. 449 , 111 U. S. 469 ; McCulloch v.
Maryland , 4 Wheat. 316, 17 U. S. 401 ; Downes v. Bidwell, 182 U. S. 244 , 182 U. S.
286 .

															The uniform, long-continued and undisputed legislative practice
just disclosed rests upon an admissible view of the Constitution
which, even if the practice found far less support in principle
than we think it does, we should not feel at liberty at this late
day to disturb.

															We deem it unnecessary to consider seriatim the several
clauses which are said to evidence the unconstitutionality of the
Joint Resolution as involving an unlawful delegation of legislative
power. It is enough to summarize by saying that, both upon
principle and in accordance with precedent, we conclude there is
sufficient warrant for the broad discretion vested in the President
to determine whether the enforcement of the statute will have a
beneficial effect upon the reestablishment of peace in the affected
countries; whether he shall make proclamation to bring the
resolution into operation; whether and when the resolution shall
cease to operate and to make proclamation accordingly, and to
prescribe limitations and exceptions to which the enforcement of
the resolution shall be subject. Second. The second point raised by the demurrer was
that the Joint Resolution never became effective because the
President failed to find essential jurisdictional facts, and the
third point was that the second proclamation of the President
operated to put an end to the alleged liability of appellees under
the Joint Resolution. In respect of both points, the court below
overruled the demurrer, and thus far sustained the government.

															The government contends that, upon an appeal by the United
States under the Criminal Appeals Act from a decision holding an
indictment bad, the jurisdiction of the court does not extend to
questions decided in favor of the United States, but that such
questions may only be reviewed Page 299 U. S. 330 in the usual way, after conviction. We find nothing in the words
of the statute or in its purposes which justifies this conclusion.
The demurrer in the present case challenges the validity of the
statute upon three separate and distinct grounds. If the court
below had sustained the demurrer without more, an appeal by the
government necessarily would have brought here for our
determination all of these grounds, since, in that case, the record
would not have disclosed whether the court considered the statute
invalid upon one particular ground or upon all of the grounds
alleged. The judgment of the lower court is that the statute is
invalid. Having held that this judgment cannot be sustained upon
the particular ground which that court assigned, it is now open to
this court to inquire whether or not the judgment can be sustained
upon the rejected grounds which also challenge the validity of the
statute, and, therefore, constitute a proper subject of review by
this court under the Criminal Appeals Act. United States v.
Hastings, 296 U. S. 188 , 296 U. S.
192 .

															In Langnes v. Green, 282 U. S. 531 ,
where the decree of a district court had been assailed upon two
grounds and the circuit court of appeals had sustained the attack
upon one of such grounds only, we held that a respondent in
certiorari might nevertheless urge in this court in support of the
decree the ground which the intermediate appellate court had
rejected. That principle is applicable here.

															We proceed, then, to a consideration of the second and third
grounds of the demurrers which, as we have said, the court below
rejected.

															1. The Executive proclamation recites,

															"I have found that the prohibition of the sale of arms and
munitions of war in the United States to those countries now
engaged in armed conflict in the Chaco may contribute to the
reestablishment of peace between those countries, Page 299 U. S. 331 and that I have consulted with the governments of other American
Republics and have been assured of the cooperation of such
governments as I have deemed necessary as contemplated by the said
joint resolution. "

															This finding satisfies every requirement of the Joint
Resolution. There is no suggestion that the resolution is fatally
uncertain or indefinite, and a finding which follows its language,
as this finding does, cannot well be challenged as
insufficient.

															But appellees, referring to the words which we have italicized
above, contend that the finding is insufficient because the
President does not declare that the cooperation of such governments
as he deemed necessary included any American republic, and,
therefore, the recital contains no affirmative showing of
compliance in this respect with the Joint Resolution. The criticism
seems to us wholly wanting in substance. The President recites that
he has consulted with the governments of other American republics,
and that he has been assured of the cooperation of such governments
as he deemed necessary as contemplated by the joint
resolution. These recitals, construed together, fairly include
within their meaning American republics.

															2. The second proclamation of the President, revoking the first
proclamation, it is urged, had the effect of putting an end to the
Joint Resolution, and, in accordance with a well settled rule, no
penalty could be enforced or punishment inflicted thereafter for an
offense committed during the life of the Joint Resolution in the
absence of a provision in the resolution to that effect. There is
no doubt as to the general rule or as to the absence of a saving
clause in the Joint Resolution. But is the case presented one which
makes the rule applicable?

															It was not within the power of the President to repeal the Joint
Resolution, and his second proclamation did not Page 299 U. S. 332 purport to do so. It "revoked" the first proclamation, and the
question is, did the revocation of the proclamation have the effect
of abrogating the resolution, or of precluding its enforcement
insofar as that involved the prosecution and punishment of offenses
committed during the life of the first proclamation? We are of
opinion that it did not.

															Prior to the first proclamation, the Joint Resolution was an
existing law, but dormant, awaiting the creation of a particular
situation to render it active. No action or lack of action on the
part of the President could destroy its potentiality. Congress
alone could do that. The happening of the designated events --
namely, the finding of certain conditions and the proclamation by
the President -- did not call the law into being. It created the
occasion for it to function. The second proclamation did not put an
end to the law, or affect what had been done in violation of the
law. The effect of the proclamation was simply to remove, for the
future, a condition of affairs which admitted of its exercise.

															We should have had a different case if the Joint Resolution had
expired by its own terms upon the issue of the second proclamation.
Its operative force, it is true, was limited to the period of time
covered by the first proclamation. And, when the second
proclamation was issued, the resolution ceased to be a rule for the
future. It did not cease to be the law for the antecedent period of
time. The distinction is clearly pointed out by the Superior Court
of Judicature of New Hampshire in Stevens v. Dimond, 6
N.H. 330, 332, 333. There, a town by law provided that, if certain
animals should be found going at large between the first day of
April and the last day of October, etc., the owner would incur a
prescribed penalty. The trial court directed the jury that the
bylaw, being in force for a year only, had expired, so that the
defendant could not be called upon to answer for a violation
which Page 299 U. S. 333 occurred during the designated period. The state appellate court
reversed, saying that, when laws

															"expire by their own limitation, or are repealed, they cease to
be the law in relation to the past, as well as the future, and can
no longer be enforced in any case. No case is, however, to be found
in which it was ever held before that they thus ceased to be law,
unless they expired by express limitation in themselves or were
repealed. It has never been decided that they cease to be law
merely because the time they were intended to regulate had expired.
. . . A very little consideration of the subject will convince
anyone that a limitation of the time to which a statute is to apply
is a very different thing from the limitation of the time a statute
is to continue in force."

															The first proclamation of the President was in force from the
28th day of May, 1934, to the 14th day of November, 1935. If the
Joint Resolution had in no way depended upon Presidential action,
but had provided explicitly that, at any time between May 28, 1934,
and November 14, 1935, it should be unlawful to sell arms or
munitions of war to the countries engaged in armed conflict in the
Chaco, it certainly could not be successfully contended that the
law would expire with the passing of the time fixed in respect of
offenses committed during the period.

															The judgment of the court below must be reversed, and the cause
remanded for further proceedings in accordance with the foregoing
opinion. Reversed. MR. JUSTICE McREYNOLDS does not agree. He is of opinion that the
court below reached the right conclusion, and its judgment ought to
be affirmed.

															MR. JUSTICE STONE took no part in the consideration or decision
of this case.

															[ Footnote 1 ]

															In general confirmation of the foregoing views, see 1
Story on the Constitution, 4th ed., §§ 198-217, and especially §§
210, 211, 213, 214, 215 (p. 153), 216.

															[ Footnote 2 ]

															Thus, the President has been broadly "authorized" to suspend
embargo acts passed by Congress, "if in his judgment the public
interest should require it" (Act of December 19, 1806, c. 1, § 3, 2
Stat. 411) or if, "in the judgment of the President," there has
been such suspension of hostilities abroad as may render commerce
of the United States sufficiently safe. Act of April 22, 1808, c.
52, 2 Stat. 490. See also Act of March 3, 1817, c. 39, §
2, 3 Stat. 361. Compare, but as to reviving an embargo
act, the Act of May 1, 1810, c. 39, § 4, 2 Stat. 605.

															Likewise, Congress has passed numerous acts laying tonnage and
other duties on foreign ships in retaliation for duties enforced on
United States vessels, but providing that if the President should
be satisfied that the countervailing duties were repealed or
abolished, then he might, by proclamation, suspend the duties as to
vessels of the nation so acting. Thus, the President has been
"authorized" to proclaim the suspension. Act of January 7, 1824, c.
4, § 4, 4 Stat. 3; Act of May 24, 1828, c. 111, 4 Stat. 308; Act of
July 24, 1897, c. 13, 30 Stat. 214. Or it has been provided that
the suspension should take effect whenever the President "shall be
satisfied" that the discriminating duties have been abolished. Act
of March 3, 1815, c. 77, 3 Stat. 224; Act of May 31, 1830, c. 219,
§ 2, 4 Stat. 425. Or that the President "may direct" that the
tonnage duty shall cease to be levied in such circumstances. Act of
July 13, 1832, c. 207, § 3, 4 Stat. 578. And compare Act
of June 26, 1884, c. 121, § 14, 23 Stat. 53, 57.

															Other acts, for retaliation against discriminations as to United
States commerce, have placed broad powers in the hands of the
President, "authorizing" even the total exclusion of vessels of any
foreign country so offending (Act of June 19, 1886, c. 421, § 17,
24 Stat. 79, 83), or the increase of duties on its goods or their
total exclusion from the United States (Act of June 17, 1930, c.
497, § 388, 46 Stat. 590, 704), or the exclusion of its goods or
the detention, in certain circumstances, of its vessels, or the
exclusion of its vessels or nationals from privileges similar to
those which it has denied to citizens of the United States (Act of
September 8, 1916, c. 463, §§ 804-806, 39 Stat. 756, 799-800). As
to discriminations by particular countries, it has been made lawful
for the President, by proclamation, which he "may in his
discretion, apply . . . to any part or all" of the subjects named,
to exclude certain goods of the offending country, or its vessels.
Act of March 3, 1887, c. 339, 24 Stat. 475. And compare Act of July 26, 1892, c. 248, 27 Stat. 267. Compare also authority given the Postmaster General to reduce or enlarge rates
of foreign postage, among other things, for the purpose of
counteracting any adverse measures affecting our postal intercourse
with foreign countries. Act of March 3, 1851, c. 20, § 2, 9 Stat.
587, 589.

															The President has been "authorized" to suspend an act providing
for the exercise of judicial functions by ministers, consuls and
other officers of the United States in the Ottoman dominions and
Egypt whenever he "shall receive satisfactory information" that the
governments concerned have organized tribunals likely to secure to
United States citizens the same impartial justice enjoyed under the
judicial functions exercised by the United States officials. Act of
March 23, 1874, c. 62, 18 Stat. 23.

															Congress has also passed acts for the enforcement of treaties or
conventions, to be effective only upon proclamation of the
President. Some of them may be noted which "authorize" the
President to make proclamation when he shall be "satisfied" or
shall receive "satisfactory evidence" that the other nation has
complied: Act of August 5, 1854, c. 269, §§ 1, 2, 10 Stat. 587; Act
of March 1, 1873, c. 213, §§ 1, 2, 17 Stat. 482; Act of August 15,
1876, c. 290, 19 Stat. 200; Act of December 17, 1903, c. 1, § 1, 33
Stat. 3. Cf. Act of June 11, 1864, c. 116, § 1, 13 Stat.
121; Act of February 21, 1893, c. 150, 27 Stat. 472.

															Where appropriate, Congress has provided that violation of the
President's proclamations authorized by the foregoing acts shall be
penalized. See, e.g., Act of June 19, 1886; Act of March
3, 1887; Act of September 8, 1916; Act of June 17, 1930 -- all supra.