United States v. Sharpnack/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

There are two provisions of the Constitution involved in the present controversy. Article I, § 1 provides: '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.' A supplementary provision is that contained in Art. IV, § 3, cl. 2: 'The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States * *  * .'

It is, therefore, the Congress, and the Congress alone, that has the power to make rules governing federal enclaves. I suppose there would be no doubt, at least after Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153, that this rule-making power could not be exercised by the President, let alone some federal agency such as the Department of the Interior. The power to make laws under which men are punished for crimes calls for as serious a deliberation as the fashioning of rules for the seizure of the industrial plants involved in the Youngstown case. Both call for the exercise of legislative judgment; and I do not see how that requirement can be satisfied by delegating the authority to the President, the Department of the Interior, or, as in this case, to the States. The Court held in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, that the determination of what constitutes 'fair competition' may not be left with the industry affected, subject to approval by the President. For the codes promulgated would have the standing of federal statutes. 'But Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.' Id., 295 U.S. at pages 537-538, 55 S.Ct. at page 846. The codemaking authority was held to be an unconstitutional delegation of legislative power. Id., 295 U.S. at page 542, 55 S.Ct. at page 843. 'The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is * *  * vested.' Id., 295 U.S. at page 529, 55 S.Ct. at page 843.

The vice in the Schechter case was not that the President was the one who received the delegated authority, but that the Congress had abdicated the lawmaking function. The result should be the same whether the lawmaking authority, constituted by Congress, is the President or a State.

Of course Congress can adopt as federal laws the laws of a State; and it has often done so. Even when it does so without any enumeration of the laws, it 'has acted as definitely as if it had repeated the words' used by the State, as Mr. Justice Holmes said in Knicker-bocker Ice Co. v. Stewart, 253 U.S. 149, 167, 40 S.Ct. 438, 443, 64 L.Ed. 834. Also Congress could, I think, adopt as federal law, governing an enclave, the state law governing speeding as it may from time to time be enacted. The Congress there determines what the basic policy is. Leaving the details to be filled in by a State is analogous to the scheme of delegated implementation of congressionally adopted policies with which we are familiar in the field of administrative law. But it is Congress that must determine the policy, for that is the essence of lawmaking. Under the scheme now approved a State makes such federal law, applicable to the enclave, as it likes, and that law becomes federal law, for the violation of which the citizen is sent to prison.

Here it is a sex crime on which Congress has never legislated. Tomorrow it may be a blue law, a law governing usury, or even a law requiring segregation of the reces on buses and in restaurants. It may be a law that could never command a majority in the Congress or that in no sense reflected its will. It is no answer to say that the citizen would have a defense under the Fifth and Sixth Amendments to unconstitutional applications of these federal laws or the procedures under them. He is entitled to the considered judgment of Congress whether the law applied to him fits the federal policy. That is what federal lawmaking is. It is that policy which has led the Court heretofore to limit these Assimilative Crimes Acts to those state laws in force at the time of enactment of the Federal Act. United States v. Paul, 6 Pet. 141, 8 L.Ed. 348. And see Franklin v. United States, 216 U.S. 559, 568-569, 30 S.Ct. 434, 436-437, 54 L.Ed. 615.

There is some convenience in doing what the Court allows today. Congress is saved the bother of enacting new Assimilative Crimes Acts from time to time. Federal laws grow like mushrooms without Congress passing a bill. But convenience is not material to the constitutional problem. With all due deference to those who are convinced the other way, I am forced to conclude that under this Assimilative Crimes Act it is a State, not the Congress, that is exercising the legislative power under Art. I, § 1 of the Constitution and that is making the 'needful Rules and Regulations' envisioned by Art. IV, § 3, cl. 2. That may not constitutionally be done.