dent complete and broad discretion to impose any rate whatsoever up to the statutory rate. We fail to find wherein the statutes evidence an intention on the part of the Congress to grant the President such unrestrained unilateral authority. (p. 1164.)

*

The Court reviewed legislative history in reaching the conclusion that the Congress had considered granting the President new authority to establish new, intermediate rates as an incident to the power to terminate in part, and rejected it, thus indicating Congress' view that the President should not possess power to choose rates which never existed in prior statutes or proclamations. The Court said further that the rejection of such authority "also indicates a probable recognition by Congress that such an unrestrained grant of authority to increase existing duties and impose nonexisting duties may well have been an invalid delegation of legislative power vested solely in the Congress by the Constitution." (p. 1166.)

With respect to defendant's contention that prior Presidential proclamations served as precedent for the President's alleged authority to establish intermediate rates, the Court said:

Presidential Proclamation 2901, 64 Stat. A427 (1950), cited by the defendant, provided for a reduction during the period of one year in the quantity of potatoes subject to the reduced tariff quota in the General Agreement on Tariffs and Trade (GATT). By reducing the quantity of potatoes subject to the quota rate, the Presidential Proclamation did nothing more than expose the possibility of more imported potatoes to the higher statutory rate. Unlike the effort to establish new supplemental intermediate rates as proposed by Presidential Proclamation 4074, Presidential Proclamation 2901 charged neither the concession rate nor the statutory rate. No intermediate nor supplemental duty was established whatsoever. Defendant cites Presidential Proclamation 2929, 65 Stat. C12 (1951), in further support of its assertion that the President has established new intermediate rates in his exercise of the "termination" authority. Examination of the history with respect thereto discloses that the Torquay Protocol, a new trade agreement between participating nations, provided for an increase on certain gloves from the 25 percent duty (the previous rate established by the GATT (T.D. 51802, schedule XX, pp. 162-163)) to a rate of 35 percent (T.D. 52739, p. 212). Presidential Proclamation 2929, in proclaiming the new trade agreement rates, specifically excepted in part I certain items and provided in part III that all prior proclamations "are hereby terminated to the extent" that the items therein specified are modified by the Torquay Protocol. See 65 Stat. C17C18.

In the opinion of this court, Presidential Proclamation 2929 clearly was predicated on the authority to proclaim trade agreement rates as provided by section 350 (a) (1) (B) of the Tariff Act of 1930,

as amended (19 U.S.C. § 1351 (a) (1) (B)). This conclusion is confirmed by the decision of the appellate court in United States v. Aris Gloves, Inc., 48 CCPA 126, C.A.D. 777 (1961). In determining therein that public notice of intention to negotiate the trade agreement (Torquay Protocol) rates relating to gloves had been properly given, as required by statute, the court must necessarily have recognized that the new rate was a modification agreed upon as a part of the Torquay Protocol and given domestic effect by the proclamation of the new trade agreement rates. Since a statutory requirement of notice is not required in a unilateral act of termination, a decision of the appellate court, would have been needless had the new rates in question been established under the termination authority. Hence, while Presidential Proclamation 2929 was used as the vehicle by which prior rates relating to certain gloves were "terminated in part," the exercise of the termination authority was merely ancillary to the primary purpose and effect of the proclamation-which was to give domestic legal effect to the new rates established by the Torquay Protocol and thus cause these new rates to apply to those gloves, the prior rates of which had been terminated in part. (p. 1167.)

The defendant also relied on section 5(b) of the Trading with the Enemy Act (50 U.S.C. App. 5(b)), which provides:

(b) (1) During the time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, and under such rules and regulations as he may prescribe, by means of instructions, licenses, or otherwise

(A) investigate, regulate, or prohibit, any transactions in foreign exchange, transfers of credit or payments between, by, through, or to any banking institution, and the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities, and

(B) investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest, . . .

The defendant relied particularly on the words contained in section 5(b)(1) (B) “. . . regulate . . . importation . . . of . . . any property in which any foreign country or a national thereof has any interest, . . . ."

...

The Court stated, after a review of the cases, that "it is well established that the constitutional grants of power to lay and collect taxes and duties on imports and the power to regulate foreign commerce are separate and independent grants of authority distinct from each

other." (p. 1171.) It could not be said that "the investiture of a power to 'regulate' necessarily includes, per se, the power to levy duties." (Ibid.) It was necessary in determining whether section 5(b) of the Trading with the Enemy Act served as authority for the imposition or an additional duty to accord the word "regulate" the sense in which the Congress intended it to be used. The Court said, in this context:

*

The words "instructions, licenses, or otherwise" contained in section 5(b) (1) define the nature and mode of the regulatory authority intended to be delegated to the President. These words conform to the phraseology used throughout the history of the Act in the establishment of a system of licenses and permits for the control of property during a time of war and crisis and which have come to be recognized as the hallmark and distinguishing feature of the Act. These words likewise serve to evidence a recognition on the part of the Congress that such delineating and restrictive phraseology, in fact, was employed in order to preclude the all-encompassing construction now urged by the defendant. If the words "regulate portation" were given the construction contended by the defendant, the President by the declaration of a national emergency could determine and fix rates of duty at will, without regard to statutory rates prescribed by the Congress and without the benefit of standards or guidelines which must accompany any valid delegation of a constitutional power by the Congress. Hampton & Co. v. United States, supra, 276 U.S. p. 409, 48 S.Ct. 348, 72 L.Ed. 624. The delegation of such an unrestrained and unbridled authority to lay duties, indeed, might well be deemed an abdication by the Congress of its constitutional power to regulate foreign commerce. (p. 1172.)

The Court took the position that section 5(b) (1) of the Trading with the Enemy Act gave the President "an authority consisting only of a specific mode of regulation, as distinguished from the full and allinclusive power to regulate foreign commerce." The Court said that "The delegation of the specific regulatory authority, 'by means of instruction, licenses, or otherwise,' manifestly is restrictive in scope and is but one branch of many attached to the trunk of the tree in which lodged the all-inclusive substantive power to regulate foreign commerce, vested solely in the Congress. (p. 1173.) The conclusion was that section 5(b) (1) contained such restrictive standards and guidelines. as to meet the test of constitutionality, but this, in turn, precluded the President from laying the supplemental duties provided by Proclamation 4074.

The Court distinguished the entry fee under consideration in South Puerto Rico Sugar Co. Trading Corp. v. United States, 334 F.2d 622, 167 Ct.Cl. 236 (1964), cert. denied, 379 U.S. 964, 85 S.Ct. 654, 13

L.Ed.2d 558 (1965) by finding that the fee in that case was "imposed as a sanction" against the Dominican Republic, and was not imposed as a duty. The entry fee on sugar was directed against the Dominican Republic under the authority of the Sugar Act of 1960 (74 Stat. 330), and was not analogous to a 10 percent surcharge imposed uniformly on most articles imported into the United States.

The Court concluded as follows:

This court is not without appreciation of the burdensome problems encountered by the Executive as he represents these United States in the society of nations. Nor can the court fail to recognize the efforts of the President to achieve stability in the international trade position and monetary reserves of this country. But neither need nor national emergency will justify the exercise of a power by the Executive not inherent in his office nor delegated by the Congress. Expedience cannot justify the means by which a deserving and beneficial national result is accomplished. To indulge in judicial rationalization in order to sanction the exercise of a power where no power in fact exists is to strike the deadliest of blows to our Constitution.

The power to levy and collect taxes, duties, imposts and excises and to regulate foreign commerce has been vested solely in the Congress by the Constitution.

Notwithstanding the broad and expansive authority delegated by various congressional enactments to the Executive in the administration of our international trade relations and affairs, we are of the opinion that Presidential Proclamation 4074 in its attempt to unilaterally assess a surcharge in the form of a supplemental duty in the amount of 10 percent on imports entering this country, exceeded the authority delegated to the President and is, therefore, invalid. (pp. 1175–1176.)

Export Control

International Cooperation

The Export Administration Amendments of 1974, P.L. 93–500 (88 Stat. 1552), approved October 29, 1974, include, in Section 4, amendments to the Export Administration Act of 1969 on international cooperation to secure access to supplies. Section 4 of the 1974 amendments provides:

Sec. 4. (a) Section 2 of the Export Administration Act of 1969 is amended by adding at the end thereof the following new paragraph: "(5) Unreasonable restrictions on access to world supplies can cause worldwide political and economic instability, interfere with free international trade, and retard the growth and development of nations."

(b) Section 3(3)(A) of such Act is amended by striking out "with which the United States has defense treaty commitments." (c) Section 3 (5) of such Act is amended

(1) by striking out the word "and" immediately preceding clause (B); and

(2) by striking out the period at the end thereof and inserting in lieu thereof a comma and the following: "and (C) to foster international cooperation and the development of international rules and institutions to assure reasonable access to world supplies." The Report of the Senate Committee on Banking, Housing and Urban Affairs (No. 93–1024, 93d Cong., 2d Sess., July 22, 1974) on the 1974 amendments states that the purpose of Section 4 is to amend the findings and policy provisions of the 1969 Act "in order to deal with the growing problems of politically and economically motivated restrictions on access to supplies." The Report states further that "When imposed on essential raw materials such as oil, such restrictions can seriously jeopardize worldwide economic growth and political and social stability. Regardless of the material involved, such restrictions signal a breakdown in the international trading system. The purpose of this section is to recognize the dangers and to establish U.S. policy firmly in opposition to unreasonable restrictions on access to supplies and firmly in favor of international cooperation to combat such restrictions."

The Report states that the Committee expects the President and Secretary of Commerce to take the finding in Section 4(a) into account in implementing the Act and in evaluating export restrictions imposed by the United States and other countries. "In both the imposition of export controls on U.S. materials and in responding to export controls established by other nations," states the Report, "the serious dangers which unreasonable export restrictions present for all nations should play an important role in the President's deliberations."

The purpose of the amendment in Section 4(b), says the Report, "is to make it United States policy to cooperate with all nations, not only those with which it has defense commitments, in assuring reasonable access to world supplies."

With respect to Section 4 (c), the Report maintains that "Internationally agreed-upon rules, implemented through international institutions, present the best hope for dealing with growing problems of resource scarcity. The Committee expects that earnest efforts on the part of the President and the Secretary to develop and encourage such international arrangements will form a basic part of official United States policy."