Peters v. Hobby/Concurrence Black

Mr. Justice BLACK, concurring.

I would prefer to decide this case on the constitutional questions discussed by Mr. Justice Douglas or on some of the other constitutional questions necessarily involved. See United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252. See my dissents in Dennis v. United States, 341 U.S. 494, 579-581, 71 S.Ct. 857, 902-903, 95 L.Ed. 1137; American Communications Ass'n v. Douds, 339 U.S. 382, 445-453, 70 S.Ct. 674, 707-711, 94 L.Ed. 925. See also my concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142-149, 71 S.Ct. 624, 633 637, 95 L.Ed. 817. I agree that it is generally better for this Court not to decide constitutional questions in cases which can be adequately disposed of on non-constitutional grounds. See Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 11 Pet. 420, 553, 9 L.Ed. 773. But this generally accepted practice should not be treated as though it were an inflexible rule to be inexorably followed under all circumstances. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584-585, 72 S.Ct. 863, 865-866, 96 L.Ed. 1153. Here, as in the Youngstown case, I think it would be better judicial practice to reach and decide the constitutional issues, although I agree with the Court that the Presidential Order can justifiably be construed as denying the Loyalty Review Board the power exercised in this case. For this reason I join the opinion of the Court. But I wish it distinctly understood that I have grave doubt as to whether the Presidential Order has been authorized by any Act of Congress. That order and others associated with it embody a broad, far-reaching espionage program over government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer lawmaking power on the President. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153.

I have thought it necessary to add these statements to the Court's opinion in order that the President's power to issue the order might not be considered as having been decided sub silentio.