into the United States and excluding such as did not equal the standards adopted. 9 Stat. 237; Rev. Stat. sec. 2933 et seq.

As a result of the complete power of Congress over foreign commerce, it necessarily follows that no individual has a vested right to trade with foreign nations, which is so broad in character as to limit and restrict the power of Congress to determine what articles of merchandise may be imported into this country and the terms upon which a right to import may be exercised. This being true, it results that a statute which restrains the introduction of particular goods into the United States from considerations of public policy does not violate the due process clause of the Constitution.

Although the prior embargo acts had been usually considered as founded upon the war power, Chief Justice Marshall stated without qualification that Congress may impose an embargo with the avowed purpose of prohibiting commerce (Gibbons v. Ogden, 1824, 9 Wheat. 1, 192; see also U. S. v. Marigold, 1850, 9 Howard 560, 566).

In Brolan v. U. S. (1915, 236 U. S. 216), the Supreme Court dismissed for want of jurisdiction a writ of error founded upon the alleged unconstitutionality of the Act of February 9, 1909 (35 Stat. 614), prohibiting the importation of certain narcotic drugs and punishing the violation, on the ground that the claim was frivolous. Chief Justice White, in Weber v. Freed (1915, 239 U. S. 325, 329) again dismissed an appeal urging the unconstitutionality of the power of Congress to prohibit importation, on the ground that the contentions are so devoid of merit as to cause them to be frivolous". This case involved the prohibition of the importation of prize fight films. (The Act of July 31, 1912, c. 263, 37 Stat. 240.)

The power of Congress to prohibit immigration has been sustained repeatedly as a regulation of foreign commerce. (Chinese Exclusion Case, 1889, 130 U. S. 581; the Japanese Immigration Case, 1903, 189 U. S. 86; Turner v. Williams, 1904, 194 U. S. 279; U. S. v. Ju Toy, 1905, 198 U. S. 253.)

Although Congress, in the exercise of its power to regulate interstate commerce, can not prohibit interstate shipments of articles manufactured by a person employing child labor (Hammer v. Dagenhart, 1918, 247 U. S. 251), Congress may, in the exercise of its power to regulate foreign commerce, prohibit the importation of sponges "taken by means of diving or diving apparatus" (The Abby Dodge, 1912, 223 U. S. 166).

B. THE POWER TO VEST IN THE PRESIDENT THE DETERMINATION OF FACTS, UPON THE EXISTENCE OF WHICH THE PRESCRIBED RULE OF LAW BECOMES EFFECTIVE.

The Brig Aurora [the cargo of the Brig Aurora, Burnside, claimant, v. the United States] (1813, 7 Cranch 382) is the earliest illustration of the principle of "contingent legislation".

Acting under the Act of May 1, 1810 (see, infra, p. 99), President Madison issued a proclamation declaring that France had revoked her edicts. Under the provisions of the Act, the specified sections of the Non-Intercourse Act were revived as to Great Britain. The Brig Aurora entered New Orleans, carrying cargo from Great Britain. The district court condemned the cargo for having been imported in violation of sections 4 and 5 of the Non-Intercourse Act. This was an appeal from that sentence. Mr. Joseph R. Ingersoll, for appellant, contended that making the revival of the law depend upon the President's proclamation was a transfer of legislative power to the President.

The Supreme Court affirmed the sentence of the lower court, and briefly stated that Congress could constitutionally make the revival of the Act conditioned or express.

Inasmuch as the court, in its decision in The Brig Aurora, did not discuss the problem fully, the case of Field v. Clark (1892, 143 U. S. 649), is usually cited as the leading case. Section 3 of the Tariff Act of 1890 (quoted, infra,) was involved. Marshall Field & Company brought the suit to recover duties on certain woolen dress goods, woolen wearing apparel, and silk embroideries, exacted under the Tariff Act of 1890, upon the theory that section 3 was an unconstitutional delegation of legislative power to the President and rendered the entire Act invalid. Briefly, the Act placed sugar, molasses, coffee, tea, and hides upon the free list, and section 3 provided that whenever the President was satisfied that any country producing and exporting these commodities imposed duties or other exactions upon the agricultural or other commodities of the United States which, in view of the free introduction, he deemed to be reciprocally unequal and unreasonable, it was made his duty to suspend the provisions of the Act relating to the free introduction. The Act then specified the rates of duty to be imposed. The court (Lamar, J., and Fuller, C. J., dissenting on this point) held that the Act was constitutional, stated that section 3 was not an invalid delegation of legislative power, and that it was competent for Congress to make the operation of a law contingent upon the existence of certain facts and to delegate the power to ascertain those facts.

The facts are definitely described in the section under discussion, and the prohibition of importation takes effect immediately. In The Brig Aurora the prohibition became effective immediately, and in Field v. Clark the rate of duty was prescribed and took effect immediately, upon the determination of the facts. Your Committee believes that these cases fully sustain the prohibition.

C. THE POWER OF CONGRESS TO IMPOSE THE RATE OF DUTY WHICH THE PRESIDENT HAS ASCERTAINED.

As stated above, this problem differs from the preceding one in that the exact rate of duty is not stated, as it was in the Act reviewed in Field v. Clark (supra). The President must find the additional fact-the rate "sufficient to prevent" the losses of the corporation. And because of the plenary power of Congress over foreign commerce, the problem here involved differs from the delegation of legislative power problems.

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Your Committee believes that the discussion and the cases cited under Part V (supra, p. 89), undoubtedly support the delegation in question. The section meets the tests indicated there as necessary to the validity of a delegation of power. A standard of almost mathematical certainty is prescribed the “rate of duty sufficient to prevent" the losses of the corporation. And the delegation is necessary, for the ratio prices, the foreign prices, and the quantity of the imports of any particular commodity will necessarily fluctuate. Consequently, it is impossible for Congress to prescribe in advance the exact rate which will accomplish the policy adopted.

Nevertheless, it seems advisable to point out the additional ground on which the delegation may be based. The "greater includes the less" doctrine of constitutional law was firmly established by Chief Justice White. Applied to this case, the principle is that, inasmuch as Congress may prohibit entirely, it may admit upon the condition that the rate of duty ascertained by the President be paid.

Oceanic Navigation Co. v. Stranahan (1909, 214 U. S. 320) is an apt illustration of its application. In this case it was held that Congress may delegate to the Secretary of Labor the power to impose a fine upon steamship companies for the violation of the immigration laws and to enforce that fine by denying clearance to the vessel. In the opinion Chief Justice White said (pp. 342-343):

In view of the absolute power of Congress over the right to bring aliens into the United States we think it may not be doubted that the Act be beyond all question constitutional if it forbade the introduction of aliens afflicted with contagious diseases, and, as a condition to the right to bring in aliens, imposed upon every vessel bringing them in, as a condition of the right to do so, a penalty for every alien brought to the United States afflicted with the prohibited disease, wholly without reference to when and where the disease orginated. It must then follow that the provision contained in the statute is of course valid, since it only subjects the vessel to the exaction when, as the result of the medical examination for which the statute provides, it appears that the alien immigrant afflicted with the prohibited malady is in such a stage of the disease that it must in thẹ opinion of the medical officer have existed and been susceptible of discovery at the point of embarkation These conclusions are apparent, we think, since the plenary power of Congress as to the admission of aliens leaves no room to doubt as to its authority to impose the penalty, and its complete adminstrative control over the granting or refusal of a clearance also leaves no doubt of the right to endow administrative officers with discretion to refuse to perform the administrative act of granting a clearance as a means of enforcing the penalty which there was lawful authority to impose.

The Tea Inspection Act was sustained in Buttfield v. Stranahan (1904, 192 U. S. 470) in part upon the theory that inasmuch as Congress may exclude all teas from importation, it may exclude teas inferior to the standards prescribed by the Secretary-that is, it may delegate to the Secretary the power to prescribe the standards of tea which may be imported.

Again, if a person about to be deported from the United States presents a reasonable claim of citizenship, he is entitled to a judicial determination of that claim (Ng Fung Ho v. White, 1922, 259 U. S. 276); but, because of the extensive power of Congress over foreign commerce, a claim of citizenship in the case of a person seeking entry may be determined finally by an administrative agency (U. S. v. Ju Toy, 1905, 198 U. S. 253).

D. LEGISLATIVE PRECEDENTS.

STATUTES DELEGATING POWER TO IMPOSE OR RELIEVE FROM AN EMBARGO.

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(1) The Act entitled "An Act to authorize the President of the United States to lay, regulate and revoke Embargoes," approved June 4, 1794 (. 41, I Stat. 372): "That the President is authorized and empowered, whenever, in his opinion, the public safety shall so require, to lay an embargo on all ships and vessels * *" until 15 days after the next session of Congress. (2) The Act entitled "An Act further to suspend the commercial intercourse between the United States and France, and the de

pendencies thereof," approved February 9, 1799 (c. 2, 1 Stat. 613): The Act made it unlawful for any vessel owned by a resident of the United States to depart for France or any place within the jurisdiction of France (sec. 1); or for any French vessel to enter within the territory of the United States (sec. 3). Section 4 then provided:

That * * * it shall be lawful for the President * * * as he shall deem expedient and consistent with the interest of the United States, by his order, to limit and discontinue * * * the restraints and prohibitions aforesaid * * *; and also to revoke such order, whenever, in his opinion, the interest of the United States shall require

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President John Adams relieved St. Domingo and Hispanola from the Act, by proclamations of June 26, 1799, and September 6, 1800, respectively (11 Stat. 758; 11 Stat. 759).

(3) The Act entitled "An Act further to suspend the commercial intercourse between the United States and France, and the dependencies thereof," approved February 27, 1800 (c. 10, 2 Stat. 7): The~ Act cited in paragraph (2), above, was continued and supplemented, and all intercourse between any person resident within the United States and any person resident within the territories of the French Republic was prohibited. Section 6 then contained a provision similar to that quoted in section 4 above.

(4) The Act entitled "An Act to suspend the operation of an Act, instituted 'An Act to prohibit the importation of certain goods, wares and merchandise,' and to remit the penalties incurred under the same, approved December 19, 1806 (c. 1, 2 Stat. 411): A former Act (2 Stat. 379) had prohibited the importation of leather, silk, and other articles. Section 1 of the Act in question suspended the operation of such Act, and section 3 authorized the President "further to suspend the operation of the aforesaid Act, if in his judgment the public interest should require it *" but not beyond the second Monday of the following December.

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(5) The Act entitled "An Act to authorize the President of the United States, under certain conditions, to suspend the operation of the Act laying an embargo on all ships and vessels in the ports and harbors of the United States, and the several Acts supplementary thereto," approved April 22, 1808 (c. 52, 2 Stat. 490): That in the event of such peace or suspension of hostilities between the belligerent powers of Europe * as may render that of the United States sufficiently safe, in the judgment of the President of the United States, he is hereby authorized, during the recess of Congress, to suspend, in whole or in part, the Act laying an embargo

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but the suspension "shall not extend beyond twenty days after the next meeting of Congress.'

(6) The Act entitled "An Act concerning the commercial intercourse between the United States and Great Britain and France, and their dependencies, and for other purposes," approved May 1, 1810 (c. 39, 2 Stat. 605): Section 1 prohibited British or French armed vessels from entering the waters of the United States. Section 4 provided, "That in case either Great Britain or France shall, before the third 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," then certain sec

tions of the Non-Intercourse Act (2 Stat. 528) "shall vived and have full force and effect, so far as relates to nation thus refusing * * ""

On November 2, 1810, President Madison issued a proclamation declaring that France had so revoked or modified her edicts as that they ceased to violate the neutral commerce of the United States. (See The Brig Aurora, Feb. 23, 1813, 7 Cranch 382.)

(7) The Act entitled "An Act to regulate the trade in plaster of Paris," approved March 3, 1817 (c. 39, 3 Stat. 361): The Act prohibited the importation into the United States by foreign vessels of plaster of Paris produced in any country or dependency which refused to permit the exportation of such commodity in vessels of the United States. It was provided that if any foreign nation or dependency should at any time discontinue regulations prohibiting exportation of the commodity to ports of the United States that "the President of the United States is hereby authorized to declare that fact by his proclamation, and the restrictions imposed by this Act shall, from the date of such proclamation, cease and be discontinued in relation to the nation, or its dependencies, discontinuing such regulations."

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(8) The Act entitled "An Act to amend an Act entitled 'An Act to prevent the Spread of foreign Diseases among the Cattle of the United States,' approved December eighteenth, eighteen hundred and sixty-five," approved March 6, 1866 (c. 12; 14 Stat. 3): Section 1 prohibited the importation of neat cattle and the hides of neat cattle, with a proviso "That the operation of this Act * shall be suspended as to any foreign country * * whenever the Secretary of the Treasury shall officially determine, and give public notice thereof, that such importation will not tend to the introduction or spread of * * * diseases * * * "" Section 2 provides "That the President * * *, whenever in his judgment the importation of neat cattle and the hides of neat cattle may be made * * * of * * * without danger of the introduction dismay, by proclamation, declare the provisions of this Act to be inoperative, and the same shall be afterwards inoperative * * *""

ease

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(9) The Act entitled "An Act to authorize the President of the United States to protect and defend the rights of American fishing vessels, American fishermen, American trading and other vessels, in certain cases, and for other purposes," approved March 3, 1887 (c. 339, 24 Stat. 475):

That whenever the President * * shall be satisfied that American fishing vessels or American fishermen, visiting or being in the waters of the British dominions of North America, are or then lately have been denied or abridged in the enjoyment of any rights secured to them by treaty or law * * * or subjected to unreasonable restrictions * * *; or otherwise unjustly vexed * * *; it shall be lawful, and it shall be the duty of the President of the United States, in his discretion, by proclamation to that effect, to deny vessels * * * of the British dominions * * * any entrance into the waters * * * of the United States * * *. *; and also, to deny entry * * * of fresh fish * or other goods coming from said dominions to

the United States.