United States v. Weller/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

I believe that the appeal is properly here and I believe that United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423, is a precedent that sustains my view and may not properly be distinguished as the Court undertakes to do.

In Mersky a statute governing the labeling of imported articles was involved. The Act made it mandatory to label articles of foreign origin with 'the English name of the country of origin.' It also said that the Secretary of the Treasury 'may' determine the 'words and phrases or abbreviations' which were acceptable 'as indicating the country of origin.' 19 U.S.C. § 1304(a).

We held that the Act and the regulation were 'so inextricably intertwined' that dismissal of the information 'must be held to involve the construction of the statute.' 361 U.S., at 438, 80 S.Ct., at 464.

In the present case the Court concludes that the provision of the Military Selective Service Act of 1967 in issue and the regulations are 'far short' of being 'inextricably intertwined.' But, with all respect, the only section of the Act quoted is the penal provision defining the crime of refusing to be inducted. The more relevant section is § 10(b)(3), 50 U.S.C.App. § 460(b) (3) (1964 ed., Supp. V), which reads in relevant part:

'Such local boards, or separate panels thereof each     consisting of three or more members, shall, under rules and      regulations prescribed by the President (§ 10(b)(1)), have      the power within the respective jurisdictions of such local      boards to hear and determine, subject to the right of appeal      *  *  *, all questions or claims with respect to inclusion for,      or exemption or deferment from, training and service under      this title *  *  * .' (Emphasis added.)

The question turns on the meaning of 'to hear and determine'. President Truman, pursuant to his rule-making power granted by § 10(b)(1), promulgated on August 20, 1948, a regulation, now 32 CFR § 1624.1, which described the kind of 'hearing' to which a registrant is entitled. More precisely does the power 'to hear and determine' include the right of a registrant personally to appear? Does it include the right of a registrant to appear through an attorney or with an attorney? Is the question to be resolved 'under the rules and regulations prescribed by the President' or is the Act to be read as including constitutional requirements of counsel? In my view the power 'to hear and determine,' granted by the Act, may indeed be more intertwined with the regulations than was the Act in the Mersky case. For in the latter, the Act, as noted, made it mandatory to label articles of foreign origin with 'the English name of the country of origin.' The power of the Secretary of the Treasury to promulgate regulations was therefore a power merely to fill in details. In contrast, the present Act leaves to 'rules and regulations prescribed by the President' the scope and nature of the power of a local board 'to hear and determine' the claims of a registrant. Is that constitutionally permissible? This case, rather than Mersky, is more nearly the one whether the Act and the regulations are 'so inextricably intertwined' that dismissal of the present indictment 'must be held to involve the construction of the statute.'

The District Court construed 'hear and determine' claims of registrants 'under rules and regulations prescribed by the President,' as those words are used in § 10(b)(3) of the Act, not to authorize 'the constitutionally-suspect action of removing the right to be represented by counsel.' 309 F.Supp., at 52. The District Court in granting the motion to dismiss accordingly concluded that it was 'loathe to hold that the administrative denial of such a right is either authorized by Congress or is constitutional.' Id., at 56. I therefore cannot say that the dismissal of the indictment was not based on a construction of the statute that the District Court never considered.

I would not remit the case to the Court of Appeals but would decide here and now whether in the circumstances here presented the registrant was entitled to the aid of counsel at the hearing before the board.