United States v. Sharpnack

PETITIONER:United States
RESPONDENT:Sharpnack
LOCATION:Wolverine Tube, Inc.

DOCKET NO.: 35
DECIDED BY: Warren Court (1957-1958)
LOWER COURT:

CITATION: 355 US 286 (1958)
ARGUED: Oct 29, 1957
DECIDED: Jan 13, 1958

Facts of the case

Question

Audio Transcription for Oral Argument – October 29, 1957 in United States v. Sharpnack

Earl Warren:

Number 35, United States of America, Appellant versus Gerald H. Sharpnack.

Ms. Rosenberg.

Beatrice Rosenberg:

Mr. Chief Justice, may it please the Court.

This is a direct appeal by the Government which brings up a problem under the so-called Assimilative Crimes Act and I’d like to take a moment to set the question in its setting.

The United States Federal Government in almost all of the states, owned areas of land greater or less than, and over much of this area, it has what is known as exclusive jurisdiction.

The full power of legislation is in the United States.

As a result, an act is a crime if committed in those areas only if Congress says it is a crime.

Now, Congress has designed for these areas of exclusive jurisdiction, some of the major crimes such as murder, arson, and rape.

But beyond that, it has said, and this is a statute here involved Section 13 of Title 18, that a person guilty of any act or omission which although not made punishable by Congress, would be punishable if committed or omitted within the jurisdiction of the State in which the federal enclave is situated.

By the laws thereof enforced at the time of such act or omission, shall be guilty of a like offense and subject to like punishment, now, with the phrase, “By the laws thereof at the time of such act or omission,” which gives rise to the problem here.

Appellee was indicted under a Texas statute regarding — impairing the (Inaudible) — morals of the minor, which was passed in 1950, two years after the enactment of Section 13 of Title 18 in the 1948 revision of the Code.

And the District Court held that Section 13, insofar as it is docked, state laws passed after 1948, after the federal statute, is an unconstitutional delegation of the powers of Congress and that’s the constitutional question which the Government has brought here on direct appeal under the Criminal Appeals Act.

Now, let me just briefly state the core of the Government’s position before I go into the history of the statute because if the history in a sense which gives I think rise to the decision below and which we think answers the decision below as well.

But basically, our position is this, that this isn’t in essence a problem of delegation.

What this statute is, is the implementation of the federal policy.

This statute represents a judgment by Congress that for federal enclave it is good federal policy to have mind — on the whole mind of crimes, those crimes which Congress has not thought important enough to define, conform to the laws of the surrounding areas which govern them.

And if that’s the basis of the statute that this federal policy which is the basis of the statute is more effectively implemented by this kind of a statute which adopt the state laws at the time of the offense then it is by a statute which may be two years old or five years old and so on.

If conformity is the federal policy, this is a statute which carries out that conformity.

As I said, that’s the heart of our position and we think the history of the statute bears it out.

This is an old statute.

It was enacted — first enacted in 1825 to meet the problem of what should be crime on areas of exclusive jurisdiction.

It was enacted in this form.

Beatrice Rosenberg:

No, it wasn’t in this form but it was not as originally acted very different, Your Honor.

In the 1825 version, it’s on page 11 of our brief, and it provided that a person committing an act which will — would be liable to and receive the same punishment as the laws of the State provide for a like offense.

This is a — the 1825 Act, for a like offense when committed within the body of the State.

Now, that wasn’t clear one way or another and that’s the question that came up for decision before this Court, in United States against Paul in 1832.

There, on a certificate of division, from the Circuit Court of New York, this Court, without argument, a very brief opinion by Chief Justice Marshall, which is set out — footnote on page 11, the whole opinion is set out there.

This Court ruled that the Act of 1825 was to be construed as limited to the adoption of state laws in effect at the time of the enactment.

I don’t think the word is compelled that this was a construction given by this Court and where that decision was not couched in constitutional term.

It was probably meant to be and it was certainly interpreted by Congress, I think, to be a constitutional decision to the effect that this construction was required.

Beatrice Rosenberg:

And so, thereafter, Congress has statutes to catch up.

It did that in 1866.

It did it again in 1898.

And at that point, it recognized — in those two reenactments it recognized the limitations of the Paul decision.

It provided that what should be a crime on a federal enclave was that which was a crime by the laws of the surrounding State at the time the Act was passed.

And as a matter of fact in 1866 and in 1880 — 1898 and 1899, it went so far as to say that even the repeal of the state law would not affect the federal crime as such.

From 1933 on, Congress showed increasingly, I think, that — shall I say increasing strain against the Paul decision.

For one thing in 1933 — after 1933, there were many more reenactments of the statute, much more frequently.

There was a reenactment in 1933 to bring it up to state laws at that date and then again in 1935 to bring it up to state laws at that date and then in 1940.

And finally, in the 1940 Act revision of the criminal code, the reviser said, we see no reason for this pro forma amendment.

We want to bring in the State the congressional law up to date all the time and therefore they passed the Act in its present form.

Now, in the period from 1933 before 1948, Congress showed its intention that its basic policy was conformity in several other way.

For example, as I’ve said before, the oldest statutes had provided that even though the state law was repealed, it still remained an offense for federal law.

Congress changed that in 1933 and provided that it was a federal offense at the time of enactment, that was assumed to be necessary at that time but that if by the time the Act was done, the state law had been repealed then it was not to be a federal statute.

And the legislative history of the various enactments show as Congress said in 1940, legislation of this type is passed every few years in order to bring the criminal law in effect on federal reservations as nearly as possible into conformity with the law currently in effect in the State.

1935 revision shows that the only reason Congress kept inserting dates was that they thought they had to.

And Mr. Justice Black, the 193 — 1933 Amendment which you sponsored, you said as Senator, that while there might be some questions, you have some doubt as to the policy of conformity.

It seems that if we were going to have conformity in order to be up to date and not out of date.

Now, I think that it is the Paul decision with which we have to deal but it seems to me that the history of the statute show that whatever may have been true in 1825 or 1832 at the time of the Paul decision, at the time when the federal government was very jealous of its jurisdiction that as of 1948 and as of now, this isn’t realistically — the statute cannot truly fit as if — one of the opinion said, as if the laws of each of the 48 States have been set out as in extenso.

That isn’t the rationale of the statute.Congress has said so, the language said so, the practicality of the situation shows that what Congress has decided really is that its desirable federal policy to have conformity in this minor matters to state law.

And if that’s the federal policy and I guess I’m going to say this a few times, if conformity is an invalid policy then this is the statute which conforMs.

I think it gets those illustrations if we think of it in terms of an important area covered by the statute, traffic regulations.

In 1933, we were enforcing traffic regulations in existence in 1909.

And, I think on that basis, one might well challenge the rationality of the statute whereas enforced, it is obviously sensible for Congress to say, if we have a little area in the middle of a State here, the sensible thing is to have traffic regulations the same as the whole surrounding State.

And I think more basic than that even, the whole justifications of the statute in a sense has to be the policy of conformity.

After all, Congress without some good reason can’t say that an Act, reckless driving let’s say, is punishable by six months imprisonment in this area and possible year imprisonment maybe five miles away in another state.

Now, what’s the reason why this is possible?

This is possible because when you take into consideration the dual nature of our Government, the somewhat anomalous position of federal enclaves in our dual system of government, the primary responsibility of the state in this field of criminal law and particularly the so-called common crime, then it is rational.

And to the extent that the Paul and the subsequent Franklin decision, upheld the validity of the older form of a statute, this Court recognize that it is rational for Congress to say under our system of government, of federal enclave, it makes sense to have the law of a federal enclave conform to the law of the State.

And so, if the statute — if the whole theory of the Assimilative Crime Act is valid, it must be justified on the grounds that conformity to state law is a valid federal policy.

Beatrice Rosenberg:

And I said I was going to say this several times, if conformity is a valid federal policy then true conformity is a valid policy because it is more real conformity to have it up to date than it is to have it five or six or 10 years old.

I think that becomes very clear when — when Texas cases in relation to two decisions by this Court where it was held that this — that the federal government could not adopt state laws.

And those were Knickerbocker Ice and Washington against Dawson in 253 and 274 United States where on vigorous dissents by Justice Holmes and Justice Brandeis, this Court held that Congress could not pass state maritime as State Workmen’s Compensation laws apply to maritime industries.

But what’s interesting about the majority opinions in those cases is that that was put on the ground that maritime law has to be uniform.

And it said we couldn’t have maritime law, we had law in one place and one law in another and one in the third.

But this Court has — the implications of Paul way back in 1832, and the implications of Franklin in 1909 to 16 United States or that when it comes to criminal jurisdiction on federal enclave, it is valid to have non-uniformity.

It is valid to look to the state law and therefore it — it is valid to look to the state law then it seems also valid to look to the state law as it exist at the time that the act was done.

Now, in addition to that and thinking now particularly in terms of delegation, it seems to me that the history of the statute indicates why this is not an invalid delegation even if it is treated as such.

For one thing, the history of the statute makes clear that one has a right to consider in — at least in the — in the question of delegation that this is not carte blanche.

Before the Act of 1825 and at all times then, Congress has designed most of the major crimes, most of the offenses that have come up under the Assimilative Crimes Act are minor offenses.

There are very some barely serious offenses that are not designed by Congress and they do occasionally arise.

But the majority — but the fact is, however, the Congress has said, we are looking to the state law only in those areas that we do not think important enough to deform so that this is not a sort of delegation to the State saying we have no legislative policy.

Congress has a legislative policy.

In addition, the courts have held by now and accepted even though it is the lower court’s decision that so long as there is any federal policy shown in the field, the Assimilative Crimes Act will not apply.

For example, the Civil Aeronautics Board had a regulation prohibiting segregation in airport.

It was held that in view of that federal policy expressed by that federal regulation, the State’s segregation laws did not apply to airport in Virginia.

So that again, we have a limited area in which this operates, Congress isn’t just generally adopting all state laws.

It is adopting those which it has not thought in court and to design.

It is adopting those as to which Congress has in other fields and administrative agencies have no policy so that this works in the quite limited areas.

And thirdly, there is the limitations that adhere from the facts that this is a federal system — that this is a federal crime declared by Congress.

I take it and it seems to be more theoretical that one could conjure up situations where conceivably the State might have a law which would come within the limitations of the Fourteenth Amendment with the area that is led to the states under the Fourteenth Amendment that would not be covered by the bill.

And I suppose that’s where the greatest possible question of delegation of powers that arise.

But this is more — this is not fair.

Actually, this is a — when one examines this, this possibility cannot arise because these crimes under the Assimilative Crimes Act are federal crimes to be prosecuted by federal prosecutors in federal court.

And therefore, if one does conceive as an area which might be valid to the State under the Fourteenth Amendment, it could not so long as the federal government has to act — would have to act within the limitations of the Fifth.

So that on this basis, as of 1948 or as of the present time, the implications of the Paul decision are shown by a hundred years of history to be less fraud than may appear at that time.

And as a result, it seems that as I said in the first place, we don’t consider this really a delegation.

This is really Congress acting but even if it is thought to be delegation, the delegation is in a very limited area which circumscribed bounds and considering that we are dealing here not within an administrative agency.

If — if one thinks of it in terms of delegation, we are dealing with the problem that arises out of the fact that we are a federal system of government that such — that we are dealing with an area which even now, is considered primarily the place where the judgment of the State as reflected by the State legislature, this is the area which under our system of government is primarily left for state legislation.

On that basis, even as delegation, we think as of this time that delegation would be appropriate.

Beatrice Rosenberg:

But I would like to emphasize that in essence it is not delegation because its Congress that makes the policy and it is a policy which has it — has its foundation of fact that conformity to state law is something which our system permit and which is rational under that system and that if you accept that as Paul and Franklin do, you accept the principle that there should be conformity and this is the actual conformity.

This Court has held several times and particularly in relation to — in Clark Distilling and Hornbuckle 242 United States that where Congress says, “We will prohibit interstate commerce to things that are in violation of a policy of a State.”

For example, it is unlawful under federal law to ship liquor into a dry state.

And this comes into effect in the future whenever a State decides to go dry if it does or it — if the law ceases to have effect when the State decides not to be dry.

This Court — this Court held in Clark Distilling at that time that that was an unconstitutional delegation because it was the will of Congress that gave this statute its implications.

It was the will of Congress that made the act criminal.

Well, that’s the same thing here.

It is Congress — if the policy of Congress, not the policy of the State, it’s the policy of Congress that said, “We think it’s a good government for a federal enclave to have these on the whole minor laws conform to the laws of the surrounding State.”

And to that extent, we — it is the federal will that makes this thing a crime and we think that the rational, although different, is very much the same because it is the will of Congress and it is based on a policy which under our federal system has validity.

I just want to make one point in answer to my opponent’s brief.

And he cite the — and placed assembly lines on the Penn Dairies case and the Pacific Coast Dairy case decided by this Court in 318 United States which deals with the field of regulation licensing.

Those are cases which arise under the civil law and the civil law of federal enclave is different from the criminal because in the civil law, Congress has not acted except in very limited areas, taxation, workmen’s compensation.

On the civil law, Congress has not passed the equivalent of the Assimilative Crimes Act and this Court has said that what you apply there is the rule of international law that you take over the private law as it was at the time of session.

But if the absence of action in a sense that has made the problems of federal enclave, these have been a subject to the two volume study by the President’s committee but the problems are almost or to a large extent I should say, civil and many more cases, a matter of fact, into — have arisen which presents problems in the civil field rather than the criminal.

And one of the reasons for that is the very fact that Congress has not made — affected general policy in the civil field whereas in the criminal law, it has consistently done so and its policy looking over this hundred years of history is clearly that that as to minor offenses, conformity is a desirable policy and as we say this is the statute that has the true, the contemporaneous, the actual conformity.

And for that reason, we think it is constitutional.

Earl Warren:

Mr. Westbrook.

Joel W. Westbrook:

Mr. Chief Justice, may it please the Court.

The State of Texas has a statute, Penal Code Article 492 which provides for confinement of the penitentiary of two to five years for acts of miscegenation.

Now, may it please the Court, we believe that the — that this statute is a very good starting point for discussion of what we consider to be the real central issue of this case and that is the question of the constitutional responsibility in the enactment of the federal criminal law on the part of the Congress and on the part of the President.

Now, in appellant’s brief, we have been told that throughout the entire history of all of the Assimilative Crimes Acts that Congress has not scrutinized the state laws which it has adopted in the federal criminal law.

Appellant in his brief tells us that Congress has not excluded from the scope of any of the Assimilative Crimes Act any state criminal laws, the good, the bad, the indifferent, or the probably unconstitutional.

Supposing Congress had passed every morning a new Assimilative Crimes Act to cover the legislation of the day, the state (Voice Overlap) —

Joel W. Westbrook:

It would definitely be an inconvenience, yes sir.

Would that be all right?

Joel W. Westbrook:

It would be inconvenient, yes, sir.

It would — it would be inconvenient but it would be — would it be constitutional?

Joel W. Westbrook:

Yes, sir, very definitely.

What’s the difference in a (Voice Overlap) —

Joel W. Westbrook:

This — this Court in Franklin versus Pierce held that the Assimilative Crimes Act limited to the date of the enactment of the Assimilative Crimes Act is constitutional.

Joel W. Westbrook:

But this Court remarked and we think most significantly in the Franklin case, pointed out that there was no unconstitutional delegation, that there was no attempt to apply the laws to the future.

That’s dictum but we think it’s a significant statement.

Supposing Congress had enacted a general statute saying that every time a new state law was passed, the Congressional Assimilative Crimes Act was to be deemed amended to embrace such an Act, would that be all right?

Joel W. Westbrook:

No, sir.

I do not believe so.

William O. Douglas:

I think it would be a blank check to me.

Joel W. Westbrook:

I beg your pardon, sir?

William O. Douglas:

The difference between a blank check and one that you filled in.

Joel W. Westbrook:

Yes, sir.

The Assimilative Crimes Act prior to 1948, were adoption by reference of the state laws this Court called that in the Puerto Rico versus Shell Company case cited in the brief.

It was an adoption of the state laws then in existence.

Now, appellant has told us that this policy of conformity is a desirable policy even when Congress doesn’t scrutinize the laws it adopts and that it’s convenient that this policy of conformity extend to an undiscriminating acceptance in advance into federal criminal law of any state criminal law that’s enacted after the 1948 Act.

Now, we believe that prospective assimilation of state criminal laws is unconstitutional whether it’s desirable or convenient or not.

However, we believe that it’s at least arguable whether the policy is desirable and convenient.

And we believe that this Texas, Article 492, this statute that punishes miscegenation, illustrates the mixture of adopting state criminal laws without scrutiny and we believe that prospective assimilation is inherently mischievous and inherently irresponsible.

Is it your assumption that when Congress passes an Act limited to existing state legislation that it scrutinize all the state legislation?

Joel W. Westbrook:

Appellant have said that Congress had not sir and appellant has said and we accept it that there had been no state criminal laws excluded from its operation.

But still you —

Joel W. Westbrook:

I think —

— you recognize even in the absence of such scrutiny that an Act that was limited to existing state legislation would be all right.

Joel W. Westbrook:

Yes, sir.

Mr. Justice, I said mischievous only as a matter of practice in the — not in the constitutional sense.

In its prospective assimilation I think it is inherently and constitutionally mischievous.

Now, this — this Article 492 —

Earl Warren:

I notice — I noticed —

Joel W. Westbrook:

Yes, sir.

Earl Warren:

— Mr. Westbrook that the federal statute was passed in 1948 and — and these crimes were defined in 1950.

Joel W. Westbrook:

Yes, sir.

Earl Warren:

Were there no Texas statutes making these things offensive before 1950?

Joel W. Westbrook:

Mr. Chief Justice, I have examined the Texas criminal laws in that respect because I anticipate it and that is a valid question.

Joel W. Westbrook:

In the language of the indictment, that is to say that if you assume that the — that the indictment speaks the facts, I do not know any Texas law which is covered.

You’d noticed that one of these counts, if it had alleged the act itself, possibly it would be covered by — by another Texas Act enacted prior to 1948.

But it alleges the crime of enticing the — the prosecuting witness into the room for the purpose of proposing the Act which was not prior to that time covered by any Texas statute.

I believe they’re not in the Texas statute which we cover the challenge in the indictment.

And according again to what Mr. Justice Harlan has said, we believe that if Congress had scrutinized as criminal acts of the states when they adopted state laws, that they would have excluded such acts as Texas Article 492 on — on miscegenation because on the face of it, the United States Attorney for the Western District of Texas had a duty to prosecute right now, today in a federal court, a Negro airman and his wife living together on Randolph Air Force Base in Texas.

Now, if a grand jury were to indict — a federal grand jury were to indict, the United States Attorney might move to dismiss and the judge might grant the motion.

If he was tried and convicted, it might very well be that the indictment itself, the conviction will be held void and unconstitutional.

But the point is that the Congress in the first instance has the duty to ensure the citizens are not punished federally in the first place by laws which Congress itself were independently considered foolish and unwise and it has the duty to ensure that citizens are not subjected to the harassment and expense of defending themselves to prosecution under laws which Congress independently would consider to be unconstitutional.

Now, the President had a role in this legislative process also.

And we think that this prospective assimilation of state criminal law seriously depreciates the role of the President in the legislative process.

Here’s what we mean by that.

If we have Assimilative Crimes Act limited to a date not later than the date of the enactment of the Assimilative Crimes Act then the President, if he feels that certain state criminal law should not be adopted into federal law, can by use of his veto power or the breadth of it, force individual state laws foolish ones or ones he considers unconstitutional to be excluded from the scope of the Act.

And in so doing, his pleasure in that respect would prevail unless overwritten by two-thirds vote of each House of Congress.

But if prospective assimilation of state law were permitted and a state law is subsequently enacted which is considered foolish or mischievous or perhaps unconstitutional and the President considers that that should not be federal criminal law then in order for his disapproval to take effect, he must have the concurrence of majority of both arguable crimes rather than the support only of one-third plus aggravated case in expressing a disapproval of an Assimilative Crimes Act limited to the date of enactment.

We — we feel that if a citizen is indicted by federal grand jury for something he does or — or fails to do on a federal enclave, he’s prosecuted by — by a federal prosecutor and convicted by a federal petty jury and sentenced by a federal judge and confined in a federal penitentiary then these results ought — ought to flow from the specific imperative of — of a federal criminal law enacted by the Federal Congress and approved by the President.

Now, there’s only been one case in 132-year history of the Federal Assimilative Crimes Act in which a federal court has had occasioned to consider whether or not a citizen could be punished in federal court for committing an act on a federal enclave punishable by state law enacted subsequent to the Assimilative Crimes Act and that is the case cited by counsel for the Government, United States versus Paul.

There, there was an attempt made to prosecute for acts committed on the federal enclave of West Point.

Under the 1825 Assimilative Crimes Act, an attempt to assimilate for purposes of this prosecution, an 1829 New York statute, enacted four years later, John Marshal wrote it is true.

It was a short opinion.

That short opinion does not say that the 1825 Act is to be construed as limited to the date of the Act.

It simply says and actually, the language of the statute as counsel said is somewhat ambiguous because it says that provide — provides for the same punishment as the laws of the state provide for the like offense when committed within such state, susceptible we think of the construction perhaps either way, certain concept of construction as of the date of the commission of the offense.

Marshall simply said, this 1825 Act is to be limited to state laws enforced at the time of the passage of the 1825 Act.

As counsel for the Government has said, the Congress had apparently interpreted the Paul decision as being a constitutional restriction, a constitutional limitation.

And of necessity, all the cases bearing on are mentioning the Assimilative Crimes Act since then, have been dictum — dicta because Congress has specifically since then limited the — the force of the Act to the state laws enforced at the time of the Act or at a date prior to that.

So, everything has been written about it since then has been dicta.

There have been several expressions by the lower federal courts in — cited in our brief in which they have assumed that the Paul case was a constitutional limitation.

And then what we feel to be as the construction of the language of this Court in the Franklin case.

Now —

Earl Warren:

Mr. Westbrook, is there any other alternative than — than to have the Government enact — the Congress enact a — a complete criminal code keeping it up to — to date or on the other hand leaving many serious crimes uncovered?

Joel W. Westbrook:

Yes, sir, Mr. Chief Justice.

Earl Warren:

What is the — what is your alternative under your theory?

Joel W. Westbrook:

We believe that the Assimilative Crimes Acts which were enacted prior to 1948 which limited the adoption of a state law to the state laws enforced as of the time of the enactment of the Act is an alternative and it is a constitutional alternative and this Court has so held that that is constitutional.

The only feature of the 1948 Act was, we believe, is constitutionally cannot be done is to — it’s a prospective assimilation.

We believe that — and this Court has said that the Congress may adopt by reference all the state criminal laws for federal enclaves in existence at the time of passage of an Act.

That is the alternative and it does mean that perhaps if they do wish to follow the policy of conformity without scrutiny or with scrutiny that every few years that they would have to reenact it if they wanted to bring all the — all of the state laws then up to date.

Felix Frankfurter:

What is the provision in the Constitution either expressed or implied on which you rely saying that Congress cannot legislate in this way?

Cannot say, “We now legislate” that in view of the existing enactment of state law in this old times either lightening the sentences or stiffening sentences or new conditions bringing new situations.

We now legislate and put our authority behind the obstruction of what the State — what is there — what is there in the Constitution that follows that?

Joel W. Westbrook:

Mr. Justice, in the first place, you said specific that is expressed or implied.

Felix Frankfurter:

Yes.

Joel W. Westbrook:

I do not know of any expressed limitation.

Felix Frankfurter:

You must hang it onto something.

Joel W. Westbrook:

Yes, sir.

The Constitution provides for a means by which the Congress shall enact laws.

The process of passage of the — through Congress and provides for the President’s participation in the legislative process by vetoing or approving bills.

Now then, our — what we draw from that is that that is the way and the only way that a criminal law may become a federal imperative that when something has not previously been a crime at Randolph Air Force Base and becomes a crime only because the State of Texas expresses its will through its legislature that then the constitutionally envisioned process of how our laws become law, has just has not been required.

Felix Frankfurter:

But that isn’t a correct statement of what happened, really because Texas wants something to be a crime.

Because the Congress of the United States facing actuality says that we now announce that whenever that which on a place which is part of Texas for all practical reasons but jurisdictionally belongs to the United States could be treated the way Texas — all other parts of Texas had been re-legislate there.

They didn’t say we’d leave it all to Texas.

They put their will behind it.

The President, if he doesn’t like that, he can veto it.

If the President — if Congress had signed it and the President haven’t vetoed it or his veto is overwritten, I don’t know which would be true in this case, and it’s just as much a law as that which says that tomorrow something shall be a crime on — the concern with exclusively federal matters.

I don’t understand it.

Joel W. Westbrook:

Mr. Justice —

Felix Frankfurter:

When you say in Texas, that is half the statement.

Texas cannot do it without the most solemn determination of the legislative and executive process of the United States.

Joel W. Westbrook:

It is our view Mr. Justice that — to permit this adoption of something which isn’t in existence, adoption in futuro.

Felix Frankfurter:

But Congress itself constantly — not constantly but fairly — certainly you — way back from the (Inaudible) made legislation contingent on something that wasn’t in existence.

Joel W. Westbrook:

Yes, sir.

And in our view, there is a difference, Mr. Justice between defining a crime and fixing a punishment therefore and defining in part a crime and leaving the conditions upon which it operates incomplete.

Joel W. Westbrook:

We believe that there is a difference between defining a substantive right and then saying that the conditions upon which these rights will operate is the finding of facts — certain facts by administrative agency or the existence of certain state laws.

Felix Frankfurter:

I quite agree that there’s a difference.

What I want to know — what is the constitutional difference between the exercise of judgment on the part of Congress that that’s the way it wants to legislate?

Joel W. Westbrook:

Well, I believe that when it was remarked by Mr. Justice that as a matter of the will of Congress, I think that there is probably where the philosophical difference comes.

If — if you consider that when Congress has said we will permit whatever the states enact to become federal criminal law on federal enclaves.

If that is the will of Congress acting, if it’s — if that is what is considered to be then our position is not well taken.

If that isn’t the kind of act or will that this Court was speaking about in the Clark Distilling Company case.

Felix Frankfurter:

Well, isn’t it?

Isn’t it?

Joel W. Westbrook:

In our view —

Felix Frankfurter:

Is it meaningless when Congress does this?

Would it just be nothing?

Joel W. Westbrook:

In our view, Mr. Justice, it is not an expression of the will of Congress in a sense to which this Court is speaking in the Clark Distilling Company case.

In the Clark Distilling Company case which was not a criminal case by the way because the Webb-Kenyon Act did not have — when this Court decided the Clark Distilling case, January 1917, did not have any criminal sanctions.

It simply said that — that this transportation in violation of the state laws is prohibited.

And it wasn’t until a couple months later, I believe, in a post office corporation bill that it was made a criminal violation to transport liquor in violation of state law.

Felix Frankfurter:

But Congress did do something on a day on which you couldn’t tell what the circumstances are that will affect people’s rights.

It all looked to the future and the future may have — they just said in advance that when something happens in the future, this is the consequence.

Now, I well understand the difference between civil and criminal cases.

I wish you tell me what the differences so far as exercising the legislative power which Article 1 of the Constitution gives to the crime.

Joel W. Westbrook:

Mr. Justice, we believe that in the one case, it would be — that is to say when you prospectively assimilate state laws that what you’re doing is having the federal courts enforce state laws whereas in a case of laws adopted as of the date of the Assimilative Crimes Act, you are enforcing federal criminal law.

The — the — it has been expressed by this — by two Circuits I believe.

It was expressed in the Eighth Circuit, the MacCoy versus Hester which — which this Court denied certiorari and it’s cited in our brief in which there was involved — there again, a Texas — it was a Texas libel law which was being applied on a federal reservation.

And the — the defendant there contended that the construction of that law should be or under the control by the decision to the State of Texas and the Eighth Circuit rejected that contention and said “No, that’s not so because we’re not enforcing, in the Assimilative Crimes Act, we’re not enforcing state criminal law, we’re enforcing federal criminal law,” which we think was true of the Assimilative Crimes Act enacted up to 1948.

But when you start enforcing in federal courts laws that come into existence, punishment that comes into existence only after the date of the Act then it seems to us that you’re enforcing a state criminal laws.

Earl Warren:

Mr. Westbrook, isn’t it almost a distinction without a difference to say that — that it’s an unconstitutional — unconstitutional delegation if Congress declares the policy of adopting these laws prospectively and then on the other hand that they may, each year, by a validation act without consideration of the thousands of acts that are passed by all the legislators make a sound policy of adopting state laws?

Isn’t — isn’t it almost distinct and without a difference, the practical standpoint at least?

Joel W. Westbrook:

Mr. Chief Justice, that is assuming if the practice on the part of Congress has not scrutinizing it is not only constitutional but wise.

Now, we agree that it’s constitutional that they can adopt state laws, enforce the time of the Act constitutionally without scrutinizing whether it’s wise or not.

But we believe that there is — that there is a very substantial difference and the difference — and at least they, Congress, has taken the responsibility for saying that we know all the state laws are here but we’re not going to look at them, we’re not going to differentiate between the good and the bad and the indifference and so we’re taking the responsibility for it.

Joel W. Westbrook:

Whereas, in the case of prospective assimilation, the irresponsibility is far more widespread because they have — they have said that whatever is enacted, we — we’re going to accept and we believe that the irresponsibility there is inherent.

In other words, it’s not a matter of practice.

It — it’s just inherent in the type of legislation.

Earl Warren:

It seems to me that — that if there is — if you require Congress to do that, to pick and choose the laws that it’s going to ratify each year, that you immediately get down to the position where Congress has to have a full criminal code for all — all of the state offenses in — in every state of the union and — and I thought you said that there was an alternative premise other than that.

Joel W. Westbrook:

Mr. Chief Justice, Congress could adopt the policy all the way from doing what had been suggested, adopting a complete criminal code which would not be a policy of conformity.

Or Congress could do what it has been doing up to now just adopting all state laws without scrutiny.

Or Congress could do something in between, that is adopt all state laws except that they might feel that certain ones were particularly mischievous or unconstitutional perhaps and that they should not subject hundreds of thousands of military personnel to work on this base and that base without their choice, sir, not to — in — in Texas, sir, many have been (Inaudible) by — by choice being subjected to — to federal power.

That they’re being penalized and punished by the federal government and we believe that Congress ought to take the responsibility for determining that — that the federal power is being used to do this.

Now, counsel said that this is only petty crimes that are — that are involved here.

There — there are some — quite a number of serious crimes and as a matter of fact, whether they’re serious or not, it depends upon whether the State enacts a crime to which it affix it was a heavy penalty.

In addition in the area not troubled at all by the federal criminal Court are — where they might have minor penalties or what — the myriad of welfare statutes involving health and regulations of water and all that sort of thing which is true, might get up to this Court if they interfere too — too much with the people’s living on federal reservations that might get up to this Court or subordinate court to be held unconstitutional is conflict in the federal policy.

We believe that Congress has the responsibility before it imposes on individuals, on prosecutors, and on courts, the — the shifting out of what’s in conflict of federal policy or it is probably unconstitutional.

Felix Frankfurter:

Of course, Congress could do a lot of things.

Congress could remit jurisdiction in criminal cases to the State.

Joel W. Westbrook:

Mr. Justice —

Felix Frankfurter:

And then the whole — then you have the same result by a wholesale in futuro legislation.

Joel W. Westbrook:

If I may be pardoned to using this kind of language, I — I think that would be the candid way of going about it if they wanted to do it.

Felix Frankfurter:

Oh, but there are reasons why Congress saw fit that when things happened on West Point as to be prosecuted in the Southern District of New York and not under a state court.

Joel W. Westbrook:

Mr. Justice, in the Clark Distilling Company case, in a certain sense it might be said that that is what Congress was doing.

So the Act was entitled and — and this Court said that they were divesting liquor of its interstate carriers.

However, in that Act, Congress had picked up the subject matter and they said, this — this subject matter, this thing, liquor, cannot be transported, didn’t impose any criminal sanction for it because it can’t be transported if it’s in violation of state laws.

At least Congress had specifically acted there.

They didn’t say whatever state law is passed or whatever law the States passed about liquor or criminal laws, we’re going to enforce it criminally in a court.

This Court said in the (Inaudible) case that you can’t have a crime, and we believe that crime is different from — from civil law, that you can’t have a crime unless the legislature has defined it and the legislature has fixed the punishment.

Now, if you’re going to punish people federally by the — federal processes, federal grand juries, federal prosecutors, federal petty juries, federal judges, federal penitentiaries, then we believe that the definition of the crime and the — the fixing of the punishment whether it’s six months or five years should be the responsibility even though it may not actually undertake to spell it out.

You may do it by reference but it should be the responsibility with the opportunity to scrutinize of the federal Congress.

Felix Frankfurter:

Let me put you to another bearing (Inaudible)

Suppose Congress seeding jurisdiction to the states for all criminal — for all acts committed on federal territory that it would be a crime under state law, subject to state jurisdiction.

It has provided, however, that the defendant if he so chooses may remove the case from the state court to the federal court.

Could that be unconstitutional?

Joel W. Westbrook:

Mr. Justice, I have the doubt about it that — I don’t see how it could be removed unless it could be originally maintained in the federal court and you would have presumably the state being the plaintiff —

Felix Frankfurter:

We have now removal of statute in case where a federal official make out a case of unfairness in the state court.

Joel W. Westbrook:

Yes, sir.

Felix Frankfurter:

If the trial is for — if the crime is a state crime.

Is that at all a subject of difficulty one should begin to fuss around about what action by Congress duly taken according to the legislative process has future consequences.

What you want is the responsibility of Congress that no mandamus can make them responsible beyond what the capacities of men can do.

Joel W. Westbrook:

Thank you.