306 F.2d 270 (D.C. Cir. 1962), 16604, Tobin v. United States

Docket Nº:16604.
Citation:306 F.2d 270
Party Name:Austin J. TOBIN, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 07, 1962
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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306 F.2d 270 (D.C. Cir. 1962)

Austin J. TOBIN, Appellant,


UNITED STATES of America, Appellee.

No. 16604.

United States Court of Appeals, District of Columbia Circuit.

June 7, 1962

Argued Feb. 6, 1962.

Petition for Rehearing En Banc Denied July 2, 1962.

Certiorari Denied Nov. 13, 1962.

Mr. Thomas E. Dewey, New York City, with whom Messrs. Everett I. Willis, Lino A. Graglia and Sidney Goldstein, New York City, were on the brief, for appellant.

Mr. William Hitz, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., and Nathan J. Paulson, Asst. U.S. Atty., were on the brief, for appellee. Mr. Charles T. Duncan, Principal Asst. U.S. Atty., also entered an appearance for appellee.

Mr. Daniel M. Cohen, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Mr. Jerome M. Alper, Washington, D.C., was on the brief,

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for State of New York, as amicus curiae, urging reversal.

Mr. Theodore I. Botter, Trenton, N.J., of the bar of the Supreme Court of New Jersey, pro hac vice, by special leave of court, for State of New Jersey as amicus curiae. Mr. William F. Tompkins, Newark, N.J., was on the brief for State of New Jersey, as amicus curiae, urging reversal.

Mr. J. Raymond Clark, Philadelphia, Pa., filed a brief on behalf of the New York Chamber of Commerce, as amicus curiae, urging reversal.

Mr. Jerome M. Alper, Washington, D.C., filed a brief on behalf of the State of Delaware, as amicus curiae, urging reversal.

Mr. Jerome M. Alper, Washington, D.C., filed a brief on behalf of the State of Alabama, and others, as amici curiae, urging reversal.

Before WILBUR K. MILLER, Chief Judge, and DANAHER and BASTIAN, Circuit judges.

BASTIAN, Circuit Judge.

Austin J. Tobin, the Executive Director of the Port of New York Authority, was charged by information and convicted in the District Court of criminal contempt of Congress, under 2 U.S.C.A. § 192, for refusing to produce certain documents called for by a subpoena issued by Subcommittee No. 5 of the Committee on the Judiciary of the United States House of Representatives.

The Port of New York Authority is a bi-state agency established in 1921 and 1922 by compacts between the States of New York and New Jersey to provide for the efficient administration of the New York harbor, which is divided geographically between the two states. Pursuant to the compact clause of the Constitution, 1 Congress consented to the compacts but expressly retained, among other matters, 'the right to alter, amend or repeal' its resolutions of approval. Over the years, the Port Authority has been remarkably successful in achieving its goals. As of 1959, it had investments of nearly one billion dollars and gross annual operating revenue in excess of one hundred million dollars.

In February of 1960, the Judiciary Committee initiated an investigation of the Authority on an informal basis. The Authority cooperated with the Committee investigators except as to disclosing certain documents alleged to relate exclusively to the internal administration of the Authority. After this refusal events moved swiftly to a climax.

On June 1, 1960, the Chairman of the Committee obtained from the House subpoena power in connection with matters 'involving the activities and operations of interstate compacts.' What little floor discussion there was preceding this grant of subpoena power was not very enlightening; it certainly provided no lucid analysis of what was soon to follow. On June 8, 1960, Subcommittee No. 5 of the Judiciary Committee instituted a formal inquiry into the Authority.

Appellant conferred with the Board of Commissioners of the Authority, as well as with the Governors of both New York and New Jersey, and the consensus of their opinion was that the investigation being attempted was too broad to be valid. The Subcommittee was informed of their objections and the reasons therefor. Discounting these objections, the Subcommittee issued the subpoena in question. Appellant requested postponement of the return date of the subpoena in order to give the Governors an opportunity to meet with the Subcommittee and discuss their objections but the Subcommittee refused the postponement.

After being denied the opportunity to appear before the Subcommittee, the Governors wrote identical letters to their respective representatives on the Board of Commissioners of the Authority, instructing

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them to direct appellant not to comply with the subpoena. The Board of Commissioners so directed appellant on June 27, 1960. Two days later, on June 29, 1960, the Subcommittee met to receive the return of the subpoena. It was against this background that appellant refused to comply with the demands of the subpoena 2 and was ruled in default by the Chairman of the Subcommittee. Thereafter, the Subcommittee recommended to the full Committee that appellant be cited by the House for contempt. This recommendation was adopted by the Judiciary Committee, two members dissenting, and subsequently by the House itself. Charged by information, appellant waived his right to jury trial and was convicted of contempt of Congress by District Judge Youngdahl. 3

Appellant advances several arguments in support of the position that his conviction cannot stand. For present purposes, to illustrate the constitutional issues we would have to decide in order to affirm the conviction, we list but two of his arguments:

1. That Congress does not have the power, under the compact clause of the Constitution, to 'alter, amend or repeal' its consent to an interstate compact, which was the stated purpose of the Subcommittee's investigation.

2. That 'the subpoena issued by the Subcommittee, demanding documents relating to the internal administration of the Port Authority which the Governors of New York and New Jersey ordered appellant not to produce, (was) an unconstitutional invasion of powers reserved to the States under the Tenth Amendment to the Constitution.'

Because of the view we take of this case, appellant's first contention demands some elaboration. In granting its consent Congress can attach certain binding conditions, not only to its consent to the admission of a new state into the Union, 4 but also to its consent to the formation of an interstate compact. 5 However, the vital condition precedent to the validity of any such attached condition is that it be constitutional. If Congress

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does not have the power under the Constitution, then it cannot confer such power upon itself by way of a legislative fiat imposed as a condition to the granting of its consent. 6

In the present case, therefore, Congress's express reservation of the right 'to alter, amend or repeal' its initial consent to the creation of the Authority is meaningless unless Congress has the power under the Constitution 'to alter, amend or repeal' its consent to an interstate compact. The compact clause of the Constitution does not specifically confer such power upon Congress. No case has been cited to us, nor have we been able to find any case through our own research, holding that Congress has such constitutional power. Nor do we find any to the contrary. Since no such power appears expressly in the compact clause, any holding that it exists and that Congress possesses it must be predicated on the conclusion that it exists as an implied power.

We have addressed ourselves at some length to this issue in order to show the gravity of passing upon even only one of the constitutional questions posed by this case. Moreover, in view of appellant's argument that the plenary powers specified in and by the Constitution are more than sufficient to enable Congress to protect, supervise and preserve all federal interests affected by the existence of interstate compacts, we are even less inclined to reach the constitutional issues involved here. We have no way of knowing what ramifications would result from a holding that Congress has the implied constitutional power 'to alter, amend or repeal' its consent to an interstate compact. Certainly, in view of the number and variety of interstate compacts in effect today, such a holding would stir up an air of uncertainty in those areas of our national life presently affected by the existence of these compacts. No doubt the suspicion of even potential impermanency would be damaging to the very concept of interstate compacts.

Appellant argues that congressional consent becomes irrevocable once it is given under the compact clause since Congress thereby removes the constitutional ban against the formation of interstate compacts and thus, to that extent, restores the states to the inherent sovereignty they enjoyed prior to the adoption of the Constitution. This does not mean that once congressional consent is obtained the particular compact becomes a law unto itself, immune by reason of its autonomy from future congressional supervision. It simply means that the states are restored to that much of their original sovereignty as would permit them to enter into compacts with each other. To this extent, and to this extent alone, does congressional consent restore them to sovereignty-- sovereign in the narrow sense of being free to conclude an interstate compact, not sovereign in the broad sense of being free of the Constitution.

Accordingly, if a particular compact happens to be operational in nature (as exemplified by the compact creating the Authority) as opposed to one static in nature (as exemplified by an agreement to settle a disputed boundary line, an act which necessarily dies at the moment of its birth), Congress is not without power to control the conduct of the former. Under our system of government the...

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