Estep v. United States/Concurrence Rutledge

Mr. Justice RUTLEDGE, concurring.

I join in the result in each case and in the Court's opinion for the reasons it sets forth. A further reason would force me to this result. In my judgment a contrary construction would invalidate the statute. I have no doubt that Congress could make administrative or executive action final in such matters as these in the sense of excluding all judicial review, excepting only what may be required by the Constitution in the absence of suspension of the writ of habeas corpus. Cf. Ex parte McCardle, 6 Wall. 318, 18 L.Ed. 816; Lockerty v. Phillips, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938.

But as I do not think Congress can make it a crime punishable by the federal judicial power to violate an administrative order without affording an adequate opportunity to show its constitutional invalidity, cf. Yakus v. United States, 321 U.S. 414, 460, 64 S.Ct. 660, 684, 88 L.Ed. 834, dissenting opinion, so even more do I not think Congress can make criminal the disobedience to such an order allowing no opportunity whatever for showing its unconstitutionality. It is one thing to deny jurisdiction of the courts altogether, save in so far as the Constitution of its own force may preserve the jurisdiction. It is altogether different to confer jurisdiction for enforcement purposes, but in doing so to cut off all right of defense on constitutional grounds.

To sustain such a view not only would have the courts marching up the hill in the criminal case and down again in habeas corpus. It would make the judicial function a rubber stamp in criminal cases for administrative or executive action. And it would close the trap which in Billings v. Truesdell, 321 U.S. 542, 558, 64 S.Ct. 737, 746, 88 L.Ed. 917, we said would be set if Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, were construed to permit what it is now sought to have done to the petitioners.