Communist Party, U. S. A. v. Catherwood

PETITIONER: Communist Party, U. S. A.
RESPONDENT: Catherwood
LOCATION: John H. Kerr Dam and Reservoir

DECIDED BY: Warren Court (1958-1962)

CITATION: 367 US 389 (1961)
ARGUED: May 04, 1961
DECIDED: Jun 12, 1961

Facts of the case


Media for Communist Party, U. S. A. v. Catherwood

Audio Transcription for Oral Argument - May 04, 1961 (Part 1) in Communist Party, U. S. A. v. Catherwood

Audio Transcription for Oral Argument - May 04, 1961 (Part 2) in Communist Party, U. S. A. v. Catherwood

Julius L. Sackman:

Thank you very much, sir.

I was discussing before the petitioners' contention that the provisions of the Internal Security Act and Section 5 of the Communist Control Act evince the legislative intention not to terminate the right of the petitioners to have and function through employees and that they cited the support of that fact certain statements of the Department of Justice in a brief submitted to this Court in Communist Party against the Subversive Activities Control Board.

I also referred to the fact that the reference was to the registration provisions of the Internal Security Act and to the provisions of Section 5 of the Communist Control Act, which deal with the determination by a jury of membership participation or knowledge of purpose.

I'd also gotten to the point where I stated that the argument was predicated on an obvious fallacy that analysis of a statute indicated that there was no question of the fact that Congress had effectively destroyed the Communist Party as a legal entity, but that, nevertheless, Congress was aware of the fact that this might drive the movement underground and that it might thereafter continue on an illegal basis that this was mere recognition of the character of the movement, historically.

And that the recent history of these operations demonstrated that -- that this is what it would do and what it has done under a voluntary situation and how much more act is that they will do so when they are put out of business by operation of law.

In any event, my point is that controlled by the Government is just as essential in the one case when they are illegally operating as it is in the other.

The regulatory provisions of the Internal Security Act and the provisions of Section 5 of the Communist Control Act apply as well to operations outside of the law as they do to those within the law as witness the registration of gamblers through the medium of a tax.

It is, moreover, unsound and illogical to argue, assuming that the argument is correct, that because the regulatory provisions of the Internal Security Act will have no scope if the activity sought to be regulated or prohibited by the Communist Control Act that, therefore, the proviso in Section 3 of the latter Act should be interpreted to authorize the petitioners to continue to assert, as a legal entity, the very rights, privileges and and immunities which that very Section terminates.

Now, we come now, in response now to Mr. Justice Douglas' question, to the all important question, which was the basis of the dissent in the court below.

Chief Judge Desmond, speaking for the majority in the New York Court of Appeals, held that whatever rights, privileges and immunities the petitioners may have had were terminated by the Communist Control Act.

Associate Judge Fuld, dissenting, held and the petitioners here urged that the requirement to pay an unemployment insurance tax is a liability imposed upon them and not an immunity or right within the Communist Control Act.

Now, it seems clear that the very nature -- that at the very nature of things, an obligation or duty to pay a tax cannot be considered a right, privilege or an immunity.

But the relevant and the crucial point which is involved in this case is whether the right to be a registered employer was terminated by the Act.

The correlative of the right to be an employer is the obligation to pay the tax, but the latter is merely the tail which ought not to be committed to wag the dog.

As well might it'd be argued that the obligation to pay an income tax is determinative of the right to earn income or to push the analogy to an even more absurd extreme, the obligation to pay an estate tax is determinative of the right to pass title by will or dissent.

Furthermore, this Court in Rapkin against the United States in 1951 settled the law that the obligation to pay a tax is not dependent upon the legality of the transaction upon which the tax is based.

Its specious reasoning to conclude that the collection of a tax constitutes tested approval of the transactions from which the obligation to pay the tax arose.

The obvious conclusion which may be drawn from the dissenting opinion in the court below is that since the Communist Party has not been expressly exempted from the payment of the tax, it is, therefore, licensed to engage in transactions which have been forbidden by law.

But this, too, has been settled adversely to that view in Wainer against the United States in 1936 decision of this Court.

In their reply brief, the petitioners refer to the fact that the Bureau of Internal Revenue continues to collect taxes from the Communist Party under the Federal Unemployment Tax Act.

And they quote Judge Fuld to the effect that this action is diametrically opposed to the action of the Industrial Commissioner and constitutes recognition of the Communist Party as an employer.

They also referred to a recent letter of the Solicitor General of the of the United States to the Clerk of this Court declining to intervene in this case after the Court had certified that the constitutionality of a federal statute had been drawn in question.

Although the Solicitor General stated other reasons explaining why he declined to file a brief, there is no gain saying the fact that he agreed that under the views of the dissenting judges below, the constitutional questions is not reached.

It is not clear, however, that the Department of Justice agrees with the petitioners on the point which they urged because he merely states that the information, as to the practice of federal agencies in interpreting the statute, has been as is set forth in Judge Fuld's opinion.

The petitioners, however, assert that it is a fair inference from the Solicitor General's letter that the position attributed by Judge Fuld to the federal authorities is that of the Department of Justice, as well as that of the Bureau of Internal Revenue.

But how does this square with the Solicitor's statement in his letter that the presentation of the constitutional question is conditional in the sense that it will be reached only if the Court places one of several interpretations upon the statute.

Assuming, however, that the petitioners' inference is properly drawn, we have simply a difference of opinion between a state administrative officer and a federal administrative officer, a difference of opinion between the Department of Justice and New York's Attorney General as to the meaning of a federal statute.

There has been no binding federal judicial construction of the Act.

The federal inaction under the Act on administrative or other levels where there has been no judicial pronouncement compelling such an action, does not militate against the legal efficacy of the Act.

Where a statute is vague and ambiguous, resort may be held to the practical construction of the Act as revealed by the action of those in whom the power of enforcement of the statute is reposed.