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"The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure, as far as human prudence could insure, their beneficial execution. This could not be done by confiding the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which might be appropriate, and which were conducive to the end. This provision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. If we apply this principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be compelled to discard it."

"The re

In conclusion of this point, the Chief Justice says: sult of the most careful and attentive consideration bestowed upon. this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of Congress, or to impair the right of the legislature to exercise its best judgment in the selection of measures to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the Constitution, if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the

Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."

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Reviewing the effect of this decision, it is seen that the words "and proper" as used in the phrase necessary and proper are construed not as declaring that a means selected by Congress shall be proper as well as necessary- that is, indispensable for carrying into effect a specified power, but as qualifying and extending the force of necessary so as to render constitutional the selection of any means that may be appropriate, that is, may in any way assist the General Government in the exercise of its constitutional functions. It need not be said, of course, that the question as to whether or not the particular means selected is the best possible means that might have been adopted, is one for Congress to answer. All that the courts have to consider in passing upon its constitutionality is as to whether it is calculated in any appreciable degree to advance the constitutional end involved.

One further fact regarding the implied powers of Congress is to be noticed. This is that a power employed as incidental to the exercise of an express power may be used free from the limitation under which it would rest if exercised as an express power. Thus, in Veazie Bank v. Fennos and Head Money Cases" the Supreme Court decided that the power of taxation when used simply as a means for regulating commerce and currency, is not subject to the constitutional limitations under which it would rest if exer

cised for the purpose of raising a revenue. In the Head Money Cases the court declared, relative to a per capita tax levied by

88 Wall. 533; 19 L. ed. 482.

9112 U. S. 580; 5 Sup. Ct. Rep. 247; 28 L. ed. 798.

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Congress upon persons, not citizens of the United States, coming to this country: "If this is an expedient regulation of commerce by Congress, and the end to be obtained is one falling within the power, the act is not void, because, within a loose and more extended sense than was used in the Constitution, it is called a tax. In the case of Veazie Bank v. Fenno, the enormous tax of ten per cent. per annum on the circulation of state banks, which was designed, and did have the effect, to drive all such circulation out of existence, was upheld because it was a means properly adopted by Congress to protect the currency which it had created. It was not subject, therefore, to the rules which would invalidate an ordinary tax pure and simple."

§ 35. Administrative Necessity as a Source of Federal Power. Since the close of the Civil War the sovereignty of the National Government has been undisputed. Starting with this as a fundamental premise, constitutional development of the last forty years has been in the direction of endowing the Federal Government with administrative powers adequate for the accomplishment of the purposes for which it is acknowledged to exist. Just as the doctrine of implied powers has been used to broaden the scope of federal authority at the expense of the reserved rights of the States, so the principle of administrative efficiency has been employed to permit the field of individual rights to be entered. Thus in a remarkable series of cases the courts have permitted the exercise by federal executive officials of degrees of administrative discretion that would have startled constitutional jurists of but a generation ago.

In these cases the Supreme Court has frankly argued that where, for the efficient performance of the administrative duties laid upon the General Government, it is necessary that an administrative order should take the place of a judicial process, the private rights of person and property are not to be allowed to stand in the way. In Murray's Lessee v. Hoboken1o it was held that an administrative officer could fix finally, without judicial

10 18 How. 272; 15 L. ed. 372.

review, the amount due the Government from a public official, and collect it by a distress warrant.

12

In Springer v. United States11 the power of the Government to collect a tax by a sale of land under a warrant issued by the collector was upheld. In Smelting Co. v. Kemp12 the administrative decision of the United States Land Office was held final as to the facts within its statutory jurisdiction.

v.

The power of the Postmaster-General to exclude from the postal of am, School service the mail of concerns whose business he deems fraudulent magnetic VHealing has been sustained, though, by the statute conferring the power,elummerdy no right of judicial review is given. The Supreme Court say: 7 4.59.94 "If the ordinary daily transactions of the Departments which involve an interference with private rights were required to be submitted to the courts before action was finally taken, the result would entail practically a suspension of some of the most important functions of government." 13 In Bartlett v. Kane1 the court refused to examine the correctness of an appraisement by an administrative officer of property for taxation, saying: "The interposition of the courts in the appraisement of importations would involve the collection of the revenues in inextricable confusion and embarrassment." Finally, and most extreme of all, with regard to the exclusion of aliens, it has been held that an administrative officer may decide finally whether or not a person claiming to be a citizen of the United States is in fact such, and, therefore, entitled to enter this country.15 This decision Justice Brewer, in his dissenting opinion, characterized as appalling;"

but there is little chance that its doctrine will be disturbed in subsequent cases.

16

11 102 U. S. 586; 26 L. ed. 253.

12 104 U. S. 636; 26 L. ed. 875.

13 Public Clearing House v. Coyne (194 U. S. 497; 24 Sup. Ct. Rep. 789; 48 L. ed. 1092).

14 16 How. 263; 14 L. ed. 931.

15 United States v. Ju Toy (198 U. S. 253; 25 Sup. Ct. Rep. 644; 49 L. ed. 1040).

16 This subject of the conclusiveness of administrative determinations will receive more particular treatment in chapter LXIV.

In a manner similar to that in which the National Government has thus by Congress and the Supreme Court been equipped with the powers necessary for the efficient performance of the administrative duties which modern industrial and commercial conditions have thrown upon it, the Supreme Court has, upon simple ground of necessity, sanctioned the exercise by the Federal Government of powers requisite to meet the problems assumed by it in the imperialistic policy upon which it has entered since the Spanish war.

In De Lima v. Bidwell 17 the power of the United States over its dependencies was declared to arise, not out of the territorial clause, but from the necessities of the case and from the inability of the States to act on the subject. In Hawaii v. Mankichi1 upon similar grounds of expediency the right to jury trial was asserted not to have been extended to Hawaii, although by joint resolution Congress had declared that all local laws inconsistent with the Constitution of the United States should have no force. In Downes v. Bidwell the majority justices, Brown excepted, argue at length the practical necessity of conceding to the General Government the power of annexing foreign territory without incorporating it into the United States.

Upon the same grounds of expediency and practical necessity the Supreme Court, in United States v. Kagama, has sustained the continued exclusive control of the Federal Government over the Indians, even though their tribal autonomy is no longer respected by Congress.

§ 36. International Sovereignty and Responsibility as a Source of Implied Powers.

Starting from the premise that in all that pertains to international relations the United States appears as a single sovereign nation, and that upon it rests the constitutional duty of meeting all international responsibilities, the Supreme Court has deduced

17 182 U. S. 1; 21 Sup. Ct. Rep. 743; 45 L. ed. 1041.
18 190 U. S. 197; 23 Sup. Ct. Rep. 787; 47 L. ed. 1016.
180 118 U. S. 375; 6 Sup. Ct. Rep. 1109; 30 L. ed. 228.

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