Turning from these recent cases, some of the earlier decisions setting forth the same principles may be reviewed briefly.

In Field v. Clark (143 U. S. 649) a statute was approved which permitted the President, for such time as he should deem just, to impose reciprocal duties on certain goods imported from countries which discriminated against American products. The Supreme Court held that the statute in question "does not, in any real sense, invest the President with the power of legislation" (p. 692).

In upholding the statute authorizing the Secretary of Wer to determine whether a bridge was an "unreasonable obstruction" to navigation, the court in Union Bridge Co. v. United States (204 U. S. 364), emphasized the fact that a denial of the power to authorize such determinations by the executive would be to stop the wheels of Government and bring about confusion, if not paralysis, in the conduct of the public business.

Similarly in United States v. Grimaud (220 U. S. 506), a statute relating to forest reservations and authorizing the Secretary of Agriculture to "make such rules and regulations * * * as will insure the objects of such reservations" was approved despite the argument that the standard quoted was so broad as to permit the Secretary to exert legislative power.

Again, in upholding the provisions of the Interstate Commerce Act, which authorized the Interstate Commerce Commission to make rules in case of car shortage, the court declared in Avent v. United States:

"The statute confines the power of the Commission to emergencies, and the requirement that the rules shall be reasonable and in the interest of the public and of commerce fixes the only standard that is practicable or needed” (266 U. S. 127, 130).

In Hampton, Jr., & Co. v. United States (276 U. S. 394), upholding the Flexible Tariff Act, which authorized the President to adjust tariff rates so that they would correspond to the differences in costs of production here and abroad, the Court referred by way of analogy to the fixing of just and reasonable rates by the Interstate Commerce Commission, stating: "If Congress were to be required to fix every rate, it would be impossible to exercise the power at all" (p. 407). In view of these considerations, the Court held that it was sufficient for Congress to declare an intelligible principle to which the agency must conform.

The Transportation Act of 1920 prohibited the construction or abandonment of any line of railroad without first obtaining from the Interstate Commerce Commission a certificate that the "present or future public convenience and necessity permit of such abandonment" (49 U. S. C., sec. 1 (18)). In Colorado v. United States (271 U. S. 153), the Court approved the sufficiency of this standard of "present or future public convenience and necessity."

In Chesapeake & Ohio Ry. v. United States (283 U. S. 35), the Court described section 1 (18) of the Transportation Act of 1920 and the discretion accorded thereby in broad terms:

"There is no specification of the considerations by which the Commission is to be governed in determining whether the public convenience and necessity require the proposed construction. Under the act it was the duty of the Commission to find the facts and, in the exercise of a reasonable judgment, to determine that question" (p. 42).

In N. Y. Central Securities Corp. v. United States (287 U. S. 12) the Supreme Court considered sec. 5 (2) of the Interstate Commerce Act, as amended, authorizing the Interstate Commerce Commission to permit one carrier to acquire control of another carrier, if that would be "in the public interest," on such terms as were found just and reasonable. The Court stated:

* *

"Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the 'public interest.' It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations. * The provisions now before us were among the additions made by Transportation Act, 1920, and the term 'public interest' as thus used is not a concept without ascertainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provisions and best use of transportation facilities, questions to which the Interstate Commerce Commission has constantly addressed itself in the exercise of the authority conferred" (pp. 24-25).

In Radio Commission v. Nelson Bros. Co. (289 U. S. 266), the Supreme Court upheld a statute granting to a newly created agency the authority "from time to time, as public convenience, interest, or necessity requires," to assign frequency bands or wave lengths to stations. The Court held that the standard was not "so indefinite as to confer an unlimited power" but stated a valid criterion:

"The requirement is to be interpreted by its context, by the nature of radio transmission and reception, by the scope, character and quality of services, and, where an equitable adjustment between States is in view, by the relative advantages in service which will be enjoyed by the public through the distribution of facilities. In making such an adjustment the equities of existing stations undoubtedly demand consideration. They are not to be the victims of official favoritism. But the weight of the evidence as to these equities and all other pertinent facts is for the determination of the Commission in exercising its authority to make a 'fair and equitable allocation" (p. 285).

The cases in which the Supreme Court has invalidated legislation on the ground of improper delegation of legislative power are readily distinguishable.

In Panama Refining Co. v. Ryan (295 U. S. 388), the President was given power to prohibit the transportation in interstate commerce of petroleum produced in violation of State law. But the determination whether and when to exercise that power was not controlled by any standard at all but remained in the unfettered discretion of the President. In contrast, the proposed bill binds the President to prevent inflationary price increases, with the range of his discretion limited to the determination of the precise level of the price ceilings he may establish, taking into account the explicit standards set forth at length in the bill.

The statute disapproved in Schechter Corp. v. United States (295 U. S. 495), permitted the President to issue "codes of fair competition," which the Court interpreted as providing in essence for rendering into law whatever measures the President should deem "wise and beneficent * * * for the government of trades and industries in order to bring about their rehabilitation, correction and development" (p. 535). Again no such unrestricted power is contained in the proposed bill. Not only is the power granted the President restricted to price stabilization but it is circumscribed and narrowly limited by standards elaborately and carefully worked out.

United States v. Cohen Grocery Co. (255 U. S. 81), held invalid section 4 of the Lever Act (Food and Fuel Control Act of August 10, 1917, 40 Stat. 276, amended October 22, 1919, 41 Stat. 297). This section, in sweeping language, made it unlawful "to exact excessive prices for any necessaries * * *" and was held invalid on the ground that it was vague and did not indicate with sufficient clarity what acts would constitute an offense. Section 25 of the Lever Act, however, which empowered the President to fix specific prices for coal and coke, was upheld in Ford v. United States (281 Fed. 298 (C. C. A. 6)), reversed on other grounds (264 U. S. 239), the Circuit Court of Appeals stating:

"The constitutionality of section 25 of the act [Lever Act] is vigorously assailed on several grounds; the first being that it deprives plaintiffs in error of their property without due process of law. The specific criticisms are that the law is not clear and definite, and that no notice and hearing upon the making of Executive orders is provided for. The first criticism is plainly without merit. Nothing could well be more clear and definite than the plain inhibition against making the selling price more than 15 cents per ton higher than the purchase price. The case is obviously not within the reasoning of the Cohen case (255 U. S. 81, 89, 41 S. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045), which held section 4 of the act (sec. 3115 1/8 ff.) invalid; and the instant case is not affected by that decision" (p. 303).

Recently, in Gorin v. United States (61 S. Ct. 429), the Supreme Court, in approving an act fixing criminal penalties for certain acts imperiling "national defense," said of the Cohen case:

"United States v. Cohen Grocery Company, urged as a precedent by petitioners, points out that the statute there under consideration forbade no specific act, and that it really punished acts 'detrimental to the public interest when unjust and unreasonable' in a jury's view" (p. 433).

The distinction between an act prohibiting merely the exaction of an "unreasonable" price, leaving the vendor to speculate upon his possible criminality, and a statute prohibiting the violation of specific price schedules announced by the President was likewise recognized by the Supreme Court in Mahler v. Eby:

"International Harvester Co. v. Kentucky (234 U. S. 216), and United States v. Cohen Grocery Co. (255 U. S. 81), are cited on behalf of petitioners. In those cases, statutes were held invalid for vagueness. They were both criminal cases in which the uncertain words of the statute encountered the limitation of the fifth and sixth amendments. They did not inform the accused sufficiently of the nature and cause of the accusation. The rules as to a definite standard of action is not so strict in

cases of the delegation of legislative power to executive boards and officers" (264 U. S. 32, 41.)

Judged in the light of the firm precedents cited, distinguished from the statutes granting unfettered discretion which were disapproved in the Schechter and Panama Refining Company cases, as well as from the vague section 4 of the Lever Act, the proposed bill for emergency price control fits plainly within the traditional structure of constitutional law. It enunciates an intelligible policy, the prevention of inflationary price increases that would be disastrous to national defense, and specifies that policy in considerable detail; it authorizes the President to execute that policy by establishing price ceilings in the exercise of his administrative discretion under standards considerably more definite than those consistently approved by the Supreme Court.

B. IN ANY EVENT THE STANDARDS SET FORTH IN THE BILL ARE WELL WITHIN THE BROADER DELEGATION WHICH MAY PROPERLY BE PERMITTED IN A NATIONAL DEFENSE EMERGENCY

It has just been demonstrated that the proposed bill complies with the requirements governing administrative discretion in executing a general policy according to legislative standards. As a matter of fact, so severe a test is not necessary in view of the vast scope accorded to the discretion of the executive in a national defense emergency. It is obvious that war or a threat to the national defense demands the swift action and decision characteristic of executive as opposed to legislative determinations. This fact has been recognized by Congress, which has from time to time in the history of the nation laid down general policies for action in an emergency and then confided to the executive the administration of such policies under standards sufficiently broad as not in any way to inhibit the speedy application of the policy.

The constitutional basis for the exercise of executive discretion under the broadest possible standards was carefully described by Charles Evans Hughes in 1917, in an address to the American Bar Association on "The Fighting Powers of the Constitution." He stated in part:

"It is also to be observed that the power exercised by the President in time of war is greatly augmented, outside of his functions as Commander in Chief through legislation of Congress increasing his administrative authority. War demands the highest degree of efficient organization, and Congress, in the nature of things, cannot prescribe many important details as it legislates for the purpose of meeting the exigencies of war. Never is adaptation of legislation to practical ends so urgently required, and hence Congress naturally in very large measure confers upon the President the authority to ascertain and determine various states of fact to which legislative measures are addressed. Further, a wide range of provisions relating to the organization and government of the Army and Navy which Congress might enact if it saw fit, it authorized the President to prescribe. The principles governing the delegation of legislative power are clear, and while they are of the utmost importance when properly applied, they are not such as to make the appropriate exercise of legislative power impracticable.

"The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things, upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the hails of legislation.'

"Congress cannot be permitted to abandon to others its proper legislative functions; but in time of war, when legislation must be adapted to many situations of the utmost complexity, which must be dealt with effectively and promptly, there is special need for flexibility and for every resource of practicality; and, of course. whether the limits of permissible delegation are in any case overstepped always remains a judicial question. We thus not only find these great war powers couferred upon the Congress and the President, respectively, but also a vast increase of administrative authority through legislative action springing from the necessities of war" (55 Cong. Rec., Appendix p. 551, 553).

In Martin v. Mott (12 Wheat. 19), to take an early example, a statute was upheld authorizing the President in time of invasion or imminent danger of invasion to call out the militia "as he may judge necessary" (1 Stat. 424; see 32 U. S. C., sec. 18-a).

Of particular interest is Dakota Central Telephone Co. v. South Dakota (250 U. S. 163), discussing the joint resolution of July 16, 1918 (40 Stat. 904, c. 154, Comp. Stat. 1918, sec. 3115 3/4 x, Appx.), which provided:

"That the President during the continuance of the present war is authorized and empowered, whenever he shall deem it necessary for the national security or defense, to supervise or to take possession and assume control of any telegraph, telephone, marine cable, or radio system or systems or any part thereof, and to operate the same in such manner as may be needful or desirable for the duration of the war, which supervision, possession, control or operation shall not extend beyond the date of the proclamation by the President of the exchange of ratifications of the treaty of peace: Provided, That just compensation shall be made for such supervision, possession, control or operation, to be determined by the President; [Emphasis supplied.]

* * "

President Wilson acted under this resolution, and delegated his rate-making authority to the Postmaster General, who fixed a general schedule of rates exceeding the limits imposed by State commissions. In attacking this action, the State of South Dakota argued, inter alia, that "Congress cannot confer legislative power upon the President to make rates for the future" (p. 177), citing Field v. Clark (143 U. S. 649, 692, 693). The Supreme Court stated merely:

"That under its war power Congress possessed the right to confer upon the President the authority which it gave him, we think, needs nothing here but statement, as we have disposed of that subject in the North Dakota Railroad rate case (250 U. S. 135). And the completeness of the war power under which the authority was exerted and by which completeness its exercise is to be tested suffices, we think, to dispose of the many other contentions urged as to the want of power in Congress to confer upon the President the authority which it gave him.” (P. 183.)

Mention has already been made of the fact that section 25 of the Lever Act, which authorized the President to fix the prices of coal and coke, was upheld, despite a contention of invalidity based on indefiniteness of standards. Ford v. United States (281 Fed. 298) (C. C. A. 6th), reversed on other grounds (264 U. S. 239). In MacDonald Coal Mining Co. v. United States (56 Ct. Cls. 440), affirmed on another ground, 261 U. S. 608, the Court stated (p. 445):

"These paragraphs indicate an intention to confer the amplest authority and discretion upon the President in fixing the prices for the sale of coal by producers and dealers, and this is in keeping with the purpose of the act as set out in the recital. The courts will not attempt to construe the act so as to limit or restrict this authority and discretion to fix the price, but rather to uphold it."

In United States v. Chemical Foundation (272 U. S. 1) the Court sustained a provisions of the Trading With the Enemy Act, authorizing the President to provide that sales of enemy property need not be public, and to the highest bidder, if "the President, stating the reasons therefor, in the public interest shall otherwise determine." The Court stated:

case.

"It was not necessary for Congress to ascertain the facts of or to deal with each The act went as far as was reasonably practicable under the circumstances existing. It was peculiarly within the province of the Commander in Chief to know the facts and to determine what disposition should be made of enemy properties in order effectively to carry on the war. The determination of the terms of sales of enemy properties in the light of facts and conditions from time to time arising in the progress of war was not the making of a law; it was the application of the general rule laid down by the act. When the plenary power of Congress and the general rule so established are regarded, it is manifest that a limitation upon the excepted class is not a delegation of legislative power" (p. 12).

In this case, as in the Dakota Central Telephone case, the Court was aware that the President could and did delegate the exercise of his functions to a lesser officer, in this instance, the Alien Property Custodian. Now, as at the time of the Dakota Central Telephone case, however, the President possesses a coordinated knowledge of the defense emergency which permits him to carry out most effectively the policies laid down by Congress in the proposed bill.

Comparable to the leeway permitted to Presidential discretion in a national defense emergency is the scope of Presidential judgment allowable in the conduct of foreign relations, which was emphasized in United States v. Curtiss-Wright Corp. (299 U. S. 304).

Congress has recognized, in the act recently passed to strengthen priorities on national defense materials (Public Law No. 89, 77th Cong., 1st sess., approved May 31, 1941, known as the Vinson Act), the sufficiency of the standard of the judgment of the President as to "the defense of the United States."

The proposed bill for emergency price control is therefore seen to be wholly supportable in the light of the accepted criteria for legislation in a national-defense emergency. The bill successfully meets the test of permissible executive discretion under such legislative standards as are suitable in time of national-defense emergency.

CONCLUSION

It is proper to take into account that the proposed bill provides for price controls. The intricacy and diversity of the economic problems raised in price administration are such that Congress would be attempting the impossible if it sought to enact specific price ceilings for various commodities, and an undue rigidity imparted to the proposed act would foster injustice and might well lead to a break-down in administration. The market behavior of a multitude of commodities presents such a variety of patterns that it would be rash to establish standards narrowly confining the discretion of the President and yet to expect the results that are imperative.

Considering the consonance of the standards of the act with those approved by the Supreme Court not only for Presidential action in a national defense emergency but for action by subordinate agencies of the executive in the absence of any emergency, as well as the fact that the delicate and detailed process of price-fixing is involved, it may safely be concluded that the standards of the proposed bill for emergency price control are beyond a doubt constitutional.