AFTERNOON SESSION

FRIDAY, January 17, 1919.

The President delivered his annual address as follows:

THE REPUBLIC AFTER THE WAR

During the past year the necessities of the war have taken precedence of all other considerations and the processes of the law have had scant attention, save as they have served to reinforce the national arms and to aid in the application of force in the supreme contest. The Bar took up the sword, and on the Western Front and in all essential efforts back of the line, abroad and at home, lawyers honored their profession by their response to the Nation's call. In no small measure, it was the Bar that made possible the army which turned the balance of the contest at the critical moment. Back of that army lay the complicated mechanism of the selective service, and, throughout the land, the voluntary work of an organized Bar supplemented the necessary official activity, itself largely performed by lawyers. And in all the departments of administration lawyers gave to the country the benefit of their technical skill. The victory is not the victory of any group or section. It is the victory of the American people and we have just reason for pride in the lawyers' share in the endeavors that achieved it.

RECENT DECISIONS

In the midst of these warlike concerns, earlier controversies, in the ordinary course of litigation, have found their final fruition in decisions of utmost importance, which bring vividly before us the Republic of yesterday- the Republic in peace and quicken our thought as to the Republic of to-morrow returning to the normal activities of peace and confronting the problems of a new era. The most important of these decisions define the national power, in one case

pointing to the means for the enforcement of State obligations and, in another, holding invalid the action of Congress which had exceeded its authority by intruding, as the court found, into the field reserved to the States.

ENFORCEMENT OF DECREES AGAINST STATES

The first case referred to is the recent decision in the historic controversy between Virginia and West Virginia. In January last, Virginia submitted to the Supreme Court of the United States her petition for a writ of mandamus demanding the levy of a tax to satisfy the money judgment which had been rendered by the court against West Virginia eighteen months before.1 Thus, there was brought sharply before the court the question whether a judgment of this character could be enforced. Doubts as to the means of the enforcement of a money judgment had frequently been expressed. Premising that judicial power involved the right "to enforce the results of its exertion," the Supreme Court answered two fundamental and controlling questions. The first question was this: "May a judgment rendered against a State be enforced against it as such, including the right, to the extent necessary for so doing, of exerting authority over the governmental powers and agencies possessed by the State?" The chief justice, speaking for the court, answered this question in the affirmative. The "past infirmities of power," under the Confederation had "cried aloud for cure;' and under the Constitution the State as a governmental entity was subjected to the judicial authority. It followed that it was a manifest duty to enforce the judgment rendered by the Supreme Court in the exercise of its jurisdiction, although the application of appropriate remedies might operate upon the governmental powers of the State. The second

Virginia v. West Virginia, 246 U. S., 565.

question was: "What are the appropriate remedies?" It was found that the power to enforce the judgment was sustained by every authority of the Federal Government," judicial, legislative, or executive, which might be appropriately exercised. As the decree in the Virginia case was based on a contract between the States and as the power to control such agreements between States had been vested in Congress, it was held that Congress was competent to legislate for the enforcement of the decree and that this was a plenary power. Congress, in the exercise of legislative authority. could thus provide additional and appropriate process for the enforcement of judicial authority, and this power of Congress was in no way incompatible with the jurisdiction of the Supreme Court to entertain the suit. Having thus defined the power of Congress, and believing that the court might be spared the necessity of exerting compulsory process as against a State, the court reserved decision upon the question as to its right to award the mandamus prayed for, or to direct the levy of tax, or to apply such other equitable remedy by dealing with the funds or taxable property or rights of the defendant State as might be necessary to secure the satisfaction of the judgment.

Giving full weight to this reservation, it is now clear that judgments against a State, upon contracts entered into between States, will not be rendered nugatory by the lack of power of enforcement. If we are to preserve our Federal system and meet adequately the local needs of communities. in a variety of matters requiring the co-operation of the States immediately concerned, we shall have occasion more frequently than in the past to resort to agreements between States with the assent of Congress. The definite recognition that such agreements will have an adequate sanction is a matter of first importance.

THE CHILD LABOR CASE

At the same term of court, the authority of the States with respect to their internal concerns was emphatically asserted as against what was found by the majority of the court to be an unwarranted interference by Congress.2 The Supreme Court held that the Act of September 1, 1916, prohibiting the transportation in interstate commerce of goods made at a factory in which children were employed, under described conditions, was unconstitutional. The principle declared was even more important than the particular application.

In foreign commerce, the power of Congress is supreme. Congress, enforcing its own policy, may permit or prohibit commercial exchanges. It may provide for an embargo and impose obligatory or retaliatory tariffs. As the result of this complete power of Congress over foreign commerce, it follows that no individual has a vested right to trade with foreign nations which precludes action by Congress in determining what articles may be imported or the terms upon which the right to import may be exercised. The power to regulate commerce with the Indian tribes is equally free from restriction.

It was said by Mr. Justice Bradley in Crutcher v. Kentucky that the power of Congress over interstate commerce is as absolute as it is over foreign commerce, the grant being in the same clause. The same view had been expressed by Chief Justice Taney in the License Cases. And this apparently is the view of the four dissenting Judges in the recent Child Labor Case. Mr. Justice Holmes, in writing for the

Hammer v. Dagenhart, 247 U. S., 251.

141 U. S., 47.

45 How., 504, 578.

66

dissenting Judges, said:5 The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the State line they are no longer within their right. If there was no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution such commerce belongs not to the States but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the State. Instead of being encountered by a prohibitive. tariff at her boundaries the State encountered the public policy of the United States which it is for Congress to express."

This view, however, has frequently been challenged,notably by Chief Justice Fuller in the dissenting opinion in the Lottery Case," when it was said (speaking for the four dissenting Judges) that the power to regulate commerce with foreign nations and the power to regulate interstate commerce were to be taken diverso intuitu, for the latter was intended to secure equality and freedom in interstate intercourse, not to permit the creation of impediments to such intercourse, while the former was intended to clothe Congress with the power of foreign commerce which pertained to a sovereign nation, subject, generally speaking, to no implied or reserved power in the States.

This difference of opinion was brought to the test of decision in the recent case. There has been in late years a series of cases sustaining the regulation of interstate commerce, although the rules established by Congress had the quality of police regulation. This has been decided with respect to

5247 U. S., p. 281. 6188 U. S., 321, 373.