gation of the specific regulatory authority, "by means of instructions, licenses, or otherwise," manifestly is restrictive in scope and is but onebranch of many attached to the trunk of the tree in which is lodged the all-inclusive substantive power to regulate foreign commerce, vested solely in the Congress.

We, therefore, conclude that section 5(b)(1) of the Act contains such restrictive standards and guidelines as to meet the test of constitutionality, but which, in turn, precludes the President from laying the supplemental duties provided by Presidential Proclamation 4074.

In support of its position, the defendant has placed reliance on the case of South Puerto Rico Sugar Co. Trading Corp. v. United States, 167 Ct. Cl. 236, 334 F.2d 622 (1964), cert. denied, 379 U.S. 964 (1965). The question therein determined by the Court of Claims involved the validity of an "entry fee" charged to the plaintiff as a precondition to the importation of sugar into the United States from the Dominican Republic. The "entry fee" was imposed by the President through the Secretary of Agriculture pursuant to the specific authority provided. by the Act of Congress of July 6, 1960, 74 Stat. 330. By the provisions of that Act, the President was authorized to reduce the quota of sugar imported from Cuba and, after so doing, permit the deficit caused by such a quota reduction to be imported and marketed in the United

States, “*** at such times and from such sources, *** subject to

such terms and conditions as he deems appropriate under the prevailing circumstances * * *"

In the detailed discussion of the foreign affairs existing at the time · of the enactment of the congressional Act and the imposition of the “entry fee,” the court in its majority opinion stressed with particularity the politically sensitive hemispheric conditions and eventsthe Castro Government in Cuba; the attempt on the life of the President of Venezuela concerning which the Trujillo Government in the Dominican Republic was alleged to be connected; the collective action taken by the Organization of American States (OAS) against the Dominican Republic in severing diplomatic relations and in the partial interruption of economic relations; the increase in the quantity of Dominican Republic sugar which automatically would be allowed to be exported to the United States by virtue of the reduction of the Cuban quota, a large percentage of which was owned by and operated for the benefit of General Trujillo and his family.

Recognizing the foregoing as matters having great import on the political as well as the economic stability of many nations in the Western Hemisphere, the court gave great weight to the resulting responsibility falling upon the President in the administration of foreign affairs. Relating his singular discretion and authority in this

area to the language contained in the Sugar Act, as amended on July 6, 1960, the court stated (334 F.2d, p. 632):

Exercising his discretion in the light of the needs of United States foreign policy, the President (through his delegates) could lawfully deem it an "appropriate" "condition" of importation, "under the prevailing circumstances," to require a fee on "replacement" sugar from the Dominican Republic which would deprive the Trujillo regime of the special premium of the United States price (over the world price).

***

It would appear clear that the majority opinion of the court in essence construed the "entry fee" not as a duty, but as a license exacted by the President, as a “condition,” in the course of implementing this country's foreign policy and, thus, within the purpose and purview of the authority granted to the President by the specific statutory language of the Sugar Act, as amended.

The entry fee under consideration in the South Puerto Rico Sugar case was imposed as a sanction against the Dominican Republic. It was not imposed as a duty. We fail to find wherein a proper analogy can be drawn between the executive regulation imposing the "entry fee" directed against the Dominican Republic under the authority of the Sugar Act of 1960, and Presidential Proclamation 4074 imposing the 10 percent surcharge in the form of a "supplemental duty" uniformally on most articles imported into the United States.

The case of Hamilton v. Dillin, 88 U.S. (21 Wall.) 73 (1875) serves to well illustrate the distinction between the delegation to the Executive by the Congress of an authority to "regulate" pursuant to its constitutional powers to lay and collect taxes and duties and to regulate foreign commerce, as distinguished from authority to regulate pursuant to the war power of government.

The question therein presented related to an Act of Congress enacted during the Civil War authorizing the President to prohibit all commercial intercourse between the Confederacy and the Union and "in his discretion, license and permit commercial intercourse" with any part of such States pursuant to rules and regulations prescribed by the Secretary of the Treasury.14 The Court in upholding a charge of a license fee of four cents per pound imposed by the Secretary of the Treasury on the importation of cotton from States in insurrection stated (pp. 93–94):

*** When, in March, 1863, the President issued his license to trade in cotton and other articles in the insurrectionary districts, under and subject to the conditions contained in the regulations adopted by the Secretary of the Treasury, his action was not

14 12 Stat. 255, 257 is quoted in part in footnote 7, supra.

inconsistent with or repugnant to the internal revenue law passed the year before. It had nothing to do with that law or the subjectmatter of it. The conditions exacted by him were not imposed in the exercise of the taxing power, but of the war power of the government. The exaction itself was not properly a tax, but a bonus required as a condition precedent for engaging in the trade. *** From the foregoing decision, it will be noted that the license fee in question was neither deemed a tax nor was its application deemed to have resulted from a delegation of the constitutional power of the Congress to regulate foreign commerce. As the Court stated, it was a "bonus required as a condition precedent for engaging in the trade." The specific delegation of authority and the resulting imposition of the license fee was in the exercise of the war power of government.

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.

"The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives but of constitutional authority, for which the best of motives is not a substitute." Panama Refining Co. v. Ryan, supra, p. 420.

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.

The motion of the plaintiff for summary judgment is granted and the cross-motion of the defendant is denied.

Let judgment be entered accordingly.

570-865-75- -3

MALETZ, Judge, concurring.

I am in accord with the well-reasoned opinion of Chief Judge Boe. Withal, I believe it may be helpful to add some further comments with respect to the defendant's contention that when a national emergency is declared by the President-as was done in Proclamation 4074-he has unlimited discretion to impose supplemental duties on imports by virtue of the authority delegated to him by section 5 (b) of the Trading with the Enemy Act, as amended (50 U.S.C. App. (5)(b)). To the extent pertinent, that section 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,

by any person, or with respect to any property, subject to the jurisdiction of the United States; ***; and the President may, in the manner hereinabove provided, take other and further measures not inconsistent herewith for the enforcement of this subdivision. [Emphasis added.]

At the outset, it is fundamental that the court's primary task, in determining whether section 5(b) authorizes the President to impose supplemental duties on imports, is to ascertain the Congressional intent and to construe the section in such a way as to give effect to that intent. This, in turn, requires the provision in issue to be reviewed, not as an isolated, discrete enactment, but in the context of the entire statute of which it is a part. United States v. California Portland Cement Company, 413 F.2d 161, 166 (9th Cir. 1969); Stanford v. Commissioner of Internal Revenue, 297 F.2d 298, 308 (9th Cir. 1961); Sun Theatre Corp. v. RKO Radio Pictures, Inc., 213 F.2d 284, 290 (7th Cir. 1954).

The Trading with the Enemy Act of 1917 (40 Stat. 411 et seq.) came into being as a consequence of the common law doctrine of both

England and the United States that during a state of war all commercial intercourse between citizens of belligerent states or countries is prohibited unless specifically authorized by the sovereign.1 Its declared purpose was "to mitigate the rules of law which prohibit all intercourse between the citizens of warring nations, and to permit, under careful safeguards and restrictions, certain kinds of business to be carried on." 2 This was accomplished by prohibiting and making unlawful all forms of trading with the enemy "except with the license of the President." 40 Stat. 412, sec. 3(a).

The concept of legalizing trade with the enemy pursuant to license was carried over from the Civil War when legislation was enacted providing for a system of licenses and permits for trading with the inhabitants of the insurrectionary States. Thus, section 5 of the Act of July 13, 1861 (12 Stat. 255, 257) authorized the President to declare the inhabitants of a State or part of a State to be in a state of insurrection; and provided that "thereupon all commercial intercourse" by and between the citizens of those areas and the rest of the United States "shall cease and be unlawful so long as such condition of hostility shall continue," and that all articles coming from or proceeding to such areas shall be forfeited to the United States, together with the vehicle or vessel conveying them, provided, however—

[t]hat the President may, in his discretion, license and permit commercial intercourse with any such part of said State or section, the inhabitants of which are so declared in a state of insurrection, in such articles, and for such time, and by such persons, as he, in his discretion, may think most conducive to the public interest; and such intercourse, so far as by him licensed, shall be conducted and carried on only in pursuance of rules and regulations prescribed by the Secretary of the Treasury. * * *

Pursuant to this Act, President Lincoln licensed and permitted trading between the citizens of the Union and the inhabitants of the insurrectionary States which was carried on under rules and regulations issued by the Secretary of the Treasury. What is particularly

1 See e.g., The Julia, 12 U.S. (8 Cranch) 181, 193 (1814); The Rapid, 12 U.S. (8 Cranch) 155, 161 (1814); Hanger v. Abbott, 73 U.S. (6 Wall.) 532, 535 (1868); Coppell v. Hall, 74 U.S. (7 Wall.) 542, 554 (1869); United States v. Lane, 75 U.S. (8 Wall.) 185, 195 (1869); Insurance Co. v. Davis, 95 U.S. 425, 429 (1877).

2 S. Rep. No. 111, 65th Cong., 1st Sess. (1917), p. 1. See also Ex Parte Kumezo Kawato, 317 U.S. 69, 76 (1942).

3 On August 16, 1861, the President issued a Proclamation (12 Stat. 1262) declaring that the inhabitants of certain States, with some exceptions, were in a state of insurrection; that all commercial intercourse with them was unlawful; and that all goods coming in from those States "without the special license and permission of the President, through the Secretary of the Treasury" would be forfeited to the United States. On February 28, 1862, the President issued an executive order licensing and permitting such commercial intercourse between the inhabitants of the areas declared to be in insurrection and the citizens of the States of the Union "within the rules and regulations which have been or (Continued)