Wechsler, Herbert

English

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Constitutionality of Alien Property Controls: A Comment on the problem of Remedies

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CONSTITUTIONALITY OF ALIEN PROPERTYCONTROLS: A COMMENT ON THEPROBLEM OF REMEDIESHERBERT WECHSLER*Under the Trading with the Enemy Act, as it was fashioned during the lastwar, Section 9(a) afforded a judicial remedy for the return of property which theCustodian had no authority to seize. The Draeger Shipping Company case holdsthat this statutory remedy is available in this war if the Custodian vests withoutauthority of law, as his present authority is defined in the First War Powers Act.My comment is addressed to Mr. McNulty's objections to this result.First: Mr. McNulty finds in the history of the First War Powers Act evidencethat Section 5(b) was intended to be "unfettered by the rest of the old Act," thatit was designed to be "self-suflicient." Whatever may be the case with respect tothe powers granted by Section 5 (b), I think the conclusion overdrawn if it is takento apply to the remedy of judicial return provided by Section 9(a). Section 5(b)took its present form because Congress, faced with a problem of appalling com-plexity in determining the provisions of the old Act which had not expired withthe passage of time, chose to make an explicit statement of the substantive powersconferred. If I read the record aright, this preoccupation with the scope of grantedpowers was the dominant theme in Congressional consideration of the bill. It maybe, therefore, that the substantive powers conferred by Section 5(b) may be divorcedin various respects from the limitations upon similar powers as they are embodiedin other provisions of the Trading with the Enemy Act. But the history of thelegislation is completely silent with respect to the problem of remedies. I read thisto mean that Congress delegated such powers as it did against the background oftraditional remedies, including the remedy for unauthorized seizure provided bySection 9(a) in terms which do not restrict its continuing vitality. This seems tome a far more satisfactory inference to draw from Congressional silence than theinescapable uncertainty as to remedies which Mr. McNulty's conclusion involves. Ishould require evidence that Congress regarded Section 9(a) as extinct to reach theresult that it does not apply to vesting under Section 5 (b) and I find no such ev-idence. I conclude, therefore, that in characterizing Section 5(b) as an amendmentto the Trading with the Enemy Act, Congress placed it in organic relationshipto the judicial remedy of return embodied in Section 9(a).*A.B., 1928, College of City of New York; LL.B., 1931, Columbia University; Assistant and AssociateProfessor of Law, Columbia University, 1933-38. Member of the New York Bar. At present AssistantAttorney General of the United States in charge of the War Division, Dep't of Justice.150 LAW AND CONTEMPORARY PROBLEMSSecond: That the authority to vest under Section 5 (b) may be exercised by "suchagency or person as may be designated from time to time by the President" whilethe remedy specified in Section 9(a) runs against the "Alien Property Custodianor the Treasurer of the United States" does not, in my view, establish that thetwo sections are independent of each other. Title I of the First War PowersAct, in substance almost identical with the Overman Act of x918, empowered thePresident, "in matters relating to the conduct of the present war, to make suchredistribution of functions among executive agencies as he may deem necessary,including any functions, duties, and powers hitherto by law conferred upon anyexecutive department, commission, bureau, agency, governmental corporation, office,or officer." In view of the flexibility of any allocation of function under Title I, Ifind it difficult to limit remedies by the titles of particular officials rather than thefunctions to which they relate.Third: In so far as it afforded a judicial remedy against unauthorized takings ofproperty, Section 9(a) was fundamentally undisturbed by the amendment of Sec-tion 5(b). It continues to be available as a remedy against unauthorized takingsof property. In this connection, the only effect of the amendment of Section 5 (b)is to authorize takings of property which would have been unauthorized prior tothe amendment.In so far as Section 5(b) creates a new class of authorized takings, i.e., takingsfrom foreign nationals who are not enemies within the definition of the old Act,it reduces the scope of unauthorized takings against which the judicial remedyafforded by Section 9(a) may be brought to bear. This means that a Federal Dis-trict Court sitting "in equity," as Section 9(a) provides, would continue to makethe same kind of determination in a suit for return as it would have made underthe old Act. In deciding whether the claimant was "entitled" to have his propertyback, however, the court would be bound by the new definition of authority to takeproperty embodied in Section 5(b) rather than by the old definition embodied inSection 7(c).It is apparent, therefore, that I do not share Mr. McNulty's difficulty when hesays (p, T4J): "The trouble is that the literal language of 9(a) would permit any-body not an enemy or ally of an enemy to step into court and recover for propertyeven if he is a 'national,' thereby nullifying the vesting that 5 (b) expressly providesfor such a 'national.'" Under the "literal language of 9(a)" a person who is notan enemy or an ally of enemy but who is nevertheless a foreign national, would not,in my judgment, be "entitled" to have his property returned, since Section 5(b)expressly authorizes the taking of such property. I believe, therefore, that a judgesitting in equity and fully respecting the letter of Section 9(a) would find a stat-utory bar to an order for return in the language limiting returns to those "entitled"to the property.Fourth: If a person other than an enemy or ally of enemy as defined in theold Act is nevertheless a foreign national within the scope of Section 5 (b), and ifCOMMENT ON PROBLEM OF REMEDIES 151further, he is entitled to immediate compensation under the Fifth Amendment inaccordance with the doctrine of the Russian Volunteer Fleet case, Mr. McNultymay be right in suggesting that the Tucker Act would afford an appropriate judicialremedy. But it is not necessary to divorce Section 5 (b) from the Act of which itis a part to reach this result. The provision in Section 7(c) of the Trading withthe Enemy Act that "the sole relief and remedy of any person having any claim toany money or other property . . . shall be that provided by the terms of this Act"is not so clear a barrier to the jurisdiction of the Court of Claims as Mr. McNultyassumes. Is a person suing for just compensation a person "having a claim to anymoney or other property" seized by the Custodian? Since he would be seekingpecuniary redress payable only on the theory that such money or property has beenplaced beyond his legal power to compel return there is force in the suggestion thatSection 7(c) does not apply. And even if 7(c) applies, there remains the furtherpossibility that Section 5 (b) has qualified Section 7(c), so far as constitutionallynecessary, to permit access to the Court of Claims.CONCLUSIONThese views accept Section 5(b), as amended, in the posture in which it wasenacted, as an amendment, and, therefore, an organic part of the Trading with theEnemy Act. If they have no other virtue, they simplify to a considerable extentthe constitutional issues with which Mr. McNulty deals.

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Constitutionality of Alien Property Controls: A Comment on the problem of Remedies

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