Field v. Clark/Dissent Lamar
Mr. Justice LAMAR, with whom concurred Mr. Chief Justice FULLER, dissenting.

The chief justice and myself concur in the judgment just announced. But the proposition maintained in the opinion, that the third section, known as the 'Reciprocity Provision,' is valid and constitutional legislation, does not command our assent, and we desire to state very briefly the ground of our dissent from it. We think that this particular provision is repugnant to the first section of the first article of the constitution of the United States, which provides that 'all legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a senate and house of representatives.' That no part of this legislative power can be delegated by congress to any other department of the government, executive or judicial, is an axiom in constitutional law, and is universally recognized as a principle essential to the integrity and maintenance of the system of government ordained by the constitution. The legislative power must remain in the organ where it is lodged by that instrument. We think that the section in question does delegate legislative power to the executive department, and also commits to that department matters belonging to the treaty-making power, in violation of paragraph 2 of the second section of article 2 of the constitution. It reads thus:

'Sec. 3. That with a view to secure reciprocal trade with countries producing the following articles, and for this purpose, on and after the first day of January, eighteen hundred and ninety-two, whenever and so often as the president shall be satisfied that the government of any country producing and exporting sugars, molasses, coffee, tea, and hides, raw and uncured, or any of such articles, imposes duties or other exactions upon the agricultural or other products of the United States, which in view of the free introduction of such sugar, molasses, coffee, tea, and hides into the United States he may deem to be reciprocally unequal and unreasonable, he shall have the power, and it shall be his duty, to suspend, by prolamation to that effect, the provisions of this act relating to the free introduction of such sugar, molasses, coffee, tea, and hides, the production of such country, for such time as he shall deem just, and in such case, and during such suspension, duties shall be levied, collected, and paid upon sugar, molasses, coffee, tea, and hides, the product of or exported from such designated country, as follows, namely.' 26 St. p. 612.

We do not think that legislation of this character is sustained by any decision of this court, or by precedents in congressional legislation numerous enough to be properly considered as the practice of the government. One of the instances referred to, as legislation analogous to this section, is that embodied in the acts of congress of 1809 and 1810, known as the 'Non-Intercourse Acts,' pronounced by this court to be valid in the case of The Aurora, 7 Cranch, 383. The act of March 1, 1809, forbidding any importation after May 20, 1809, from Great Britain or France, provided that 'the president of the United States be, and he hereby is, authorized, in case either France or Great Britain shall so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, to declare the same by proclamation.' after which, the trade suspended by that act and the act laying an embargo could be renewed with the nation so doing. 2 St. p. 528, § 11. That act having expired, congress on the 1st of May, 1810, passed an act (2 St. p. 605, § 4) which enacted 'that in case either Great Britain or France shall, before the 3d day of March next, so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the president of the United States shall declare by proclamation, and if the other nation shall not, within three months thereafter, so revoke or modify her edicts in like manner,' the restrictions of the embargo act 'shall, from and after the expriation of three months from the date of the proclamation aforesaid, be revived, and have full force and effect, so far as relates to * * * the nation thus refusing or neglecting to modify her edicts in the manner aforesaid. And the restrictions imposed by this act shall, from the date of such proclamation, cease and be discontinued in relation to the nation revoking or modifying her decrees in the manner aforesaid.'

These enactments, in our opinion, transferred no legislative power to the president. The legislation was purely contingent. It provided for an ascertainment by the president of an event in the future,-an event defined in the act and directed to be evidenced by his proclamation. It also prescribed the consequences which were to follow upon that proclamation. Such preclamation was wholly in the nature of an executive act, a prescribed mode of ascertainment, which involved no exercise by the president of what belonged to the law-making power. The supreme will of congress would have been enforced whether the event provided for had or had not happened, either in the continuance of the restrictions of the one hand, or, on and other, in their suspension.

But the purpose and effect of the section now under consideration are radically different. It does not, as was provided in the statutes of 1809 and 1810, intrust the president with the ascertainment of a fact therein defined upon which the law is to go into operation. It goes further than that, and deputes to the president the power to suspend another section in the same act whenever 'he may deem' the action of any foreign nation producting and exporting the articles named in that section to be 'reciprocally unequal and unreasonable;' and it further deputes to him the power to continue that suspension, and to impose revenue duties on the articles named, 'for such time as he may deem just.' This certainly extends to the executive the exercise of those discretionary powers which the constitution has vested in the law-making department. It unquestionably vests in the president the power to regulate our commerce with all foreign nations which produce sugar, tea, coffee, molasses, hides, or any of such articles; and to impose revenue duties upon them for a length of time limited solely by his discretion, whenever he deems the revenue system or policy of any nation in which those articles are produced reciprocally unequal and unreasonable in its operation upon the products of this country.

These features of this section are, in our opinion, in palpable violation of the constitution of the United States, and serve to distinguish it from the legislative precedents which are relied upon to sustain it, as the practice of the government. None of these legislative precedents, save the one above referred to, have, as yet, undergone review by this court or been sustained by its decision. And if there be any congressional legislation which may be construed as delegating to the president the power to suspend any law exempting any importations from duty, or to reimpose revenue duties on them, upon his own judgment as to what constitutes in the policy of other countries a fair and reasonable reciprocity, such legislative precedents cannot avail as authority against a clear and undoubted principle of the constitution. We say 'revenue policy,' because the phrase 'agricultural or other products of the United States' is comprehensive, and embrances our manufacturing and mining as well as agricultural products, all of which interests are thus intrusted to the discretion of the president, in the adjustment of trade relations with other countries, upon a basis of reciprocity.

While, however, we cannot agree to the propostition that this particular section is valid and constitutional, we do not regard it as such an essential part of the tariff act as to invalidate all its other provisions; and we therefore concur in the judgment of this court affirming the judgments of the court below in the several cases. 

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