Jurisdiction Questioned

Part 1

We suffer a plague of the acronymic alphabet agencies: DEA, FDA, FAA, FCC, SEC, FBI, TVA, IRS, BATF, ad nauseam. One may study the U.S. Constitution searching for the specific provision granting Congress authority over airplanes, telecommunications, securities as well as a wide variety of other matters and learn that Congress has apparently been denied authority over these subject matters.

This raises an extremely interesting question: where do we find the Constitutional authority for such agencies and the laws they administer?

By statute, all federal agencies must confine their activities to the jurisdiction delegated to them: see 5 U.S.C. §588. While this is a simply statutory command, there is an evident problem in that most federal agencies fail to publish any statements, either in the C.F.R. or some other source, which define their jurisdiction in clear and express terms.

The C.I.A. is one agency where it is easy to determine its jurisdiction because a statute has deprived it of any domestic jurisdiction; see Weissman v. C.I.A., 565 F.2d 692, 696 (D.C. Cir. 1977). However, to determine the jurisdiction of other agencies requires some study.

Perhaps the best way to determine the jurisdiction of any given federal agency is to examine various cases regarding the subject matter of that agency. For example, the United States Constitution does not provide that Congress has any authority concerning the fish and wildlife within this country and this has been previously litigated with obvious results. In McCready v. Virginia, 94 U.S. 391, 394- 95 (1877), the supreme Court held regarding the fish within the oceans:

“[T]he States own the tidewaters themselves and the fish in them, so far as they are capable of ownership while running.” The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the state.....

Like fish, the Constitution simply grants no authority to the federal government to control the wildlife within the states of this nation and this has been noted in several cases. A ready example of such a case is United States v. Shauver, 214 F. 154, 160 (E.D. Ark. 1914), which concerned the issue of where the Migratory Bird Act of March, 1913, could apply.

Through this act, Congress sought to extend protection to migratory birds by limiting the hunting season and otherwise placing restrictions upon hunting of these birds. As is only natural, upon adoption of this act federal officials started enforcing it and here they had arrested Shauver in Arkansas for shooting migratory birds.

Shauver moved to dismiss the charges filed against him on the grounds that the act contravened the Tenth Amendment by invading the jurisdiction of the states upon a matter historically reserved for legislation by the states. In deciding that this act was unconstitutional, Judge Trieber noted that the common law provided that the states essentially owned the birds within their borders and state legislation was the sole source by which hunting could be controlled. In so concluding, he held:

“All the courts are authorized to do when the constitutionality of a legislative act is questioned is to determine whether Congress, under the Constitution as it is, possesses the power to enact the legislation in controversy; their power does not extend to the matter of expediency. If Congress has not the power, the duty of the court is to declare the act void. The court is unable to find any provision in the Constitution authorizing Congress, either expressly or by necessary implication, to protect or regulate the shooting of migratory wild game in a state, and is therefore forced to the conclusion that the act is unconstitutional.”

Notwithstanding Judge Trieber’s decision, enforcement of the act did not stop and it was thereafter enforced within Kansas, where another man arrested for killing migratory birds. In United States v. McCullagh, 221 F. 288, 293 (D. Kan. 1915), the issue of the Migratory Bird Act of 1913 was again before a different court and it, relying upon its own research of the law as well as the decision in Shauver, likewise concluded that this act was unconstitutional:

“[T]he exclusive title and power to control the taking and ultimate disposition of the wild game in this country resides in the states, to be parted with and exercised by the state for the common good of all the people of the state, as in its wisdom may seem best.”

The above decisions have never been overruled and they stand today as valid authority for the proposition that Congress under the Constitution does not have any direct grant of power to regulate and control fish and wildlife within our country.

If this is the case, you might ask what is the Constitutional basis upon which the U.S. Fish & Wildlife Service has been created and currently operates?

Part II: Treaties empower Congress to ignore States’ Rights

In Part I, we examined the jurisdiction of Congress over the subject of fish and wildlife and that article noted the previous cases holding there was no federal power to control fish or wildlife under the express grants of power to Congress. This being the case, then where do we find the constitutional basis for the U.S. Fish and Wildlife Service? The answer is - in treaties.

As noted in the McCready case discussed in Part I, the supreme Court held that Congress has no authority over fish within the states. The U.S. Fisheries Commission was created as the result of the ratification of a treaty concerning the subject of fishing; see Manchester v. Massachusetts, 139 U.S. 240, 265 (1891). Our country has adopted fishing treaties with other countries and Native American tribes for a long time; see the treaty with Great Britain regarding fisheries, adopted in 1818 (Revised Stat. 297), and the treaty with Russia regarding navigation and fishing in the Pacific Ocean, ratified in 1824 (Revised Stat. 664). Of course, we have many newer ones.

A similar route was taken to acquire Congressional control over migratory birds and wildlife. In 1916, the United States and Great Britain, on behalf of Canada, adopted the Migratory Bird Treaty (39 Stat. 1702) and thereafter, Congress in 1918 passed another Migratory Bird Act to implement the provisions of the treaty. As this occurred, federal law enforcement officials again started to enforce the new law.

Within Arkansas in 1919, a man named Thompson was arrested for shooting these protected migratory birds and this case was assigned to the same judge who had rendered the decision in the Shauver case discussed in Part I; see United States v. Thompson, 258 F.257, 263-64 (E.D. Ark. 1919.) Here, Thomspon raised the identical argument as Shauver, which had previously proved successful before Judge Trieber.

But, the federal prosecutor responded to this argument by noting the authority of this new treaty, and this single change within the law dictated an entirely different result. In upholding the act and thus its application in Arkansas, Judge Trieber carefully analyzed the prior decisions of the supreme Court which illustrated the operation of treaties and how they could apply federal power:

“To subject the treaty power to all the limitations of Congress in enacting the laws for the regulations of internal affairs, would in effect, prevent the exercise of many of the most important governmental functions of this nation, in its intercourse and relations with foreign nations, and for the protection of our citizens in foreign countries. The States of the Union may enact all laws necessary for their local affairs, not prohibited by the national or their own Constitution; but they are expressly prohibited from entering into treaties, alliances, or federations with other nations. If, therefore, the national government is also prohibited from exercising the treaty power, affecting matters which for internal purposes belong exclusively to the states, how can a citizen be protected in matters of that nature, when they arise in foreign countries? Even in matters of a purely local nature, Congress, if the Constitution grants plenary powers over the subject, may exercise what is akin to the police power, a power ordinarily reserved to the states.”

Judge Trieber concluded that this treaty provided Congress with a power of municipal legislation and the treaty and its implementing laws plainly operated within Arkansas. A different case, originating in Missouri, United States v. Samples, 258 F. 479 (W.D. Mo. 1919), ultimately made it to the U.S. supreme Court where an identical conclusion was reached; see Missouri v. Holland, 252 U.S. 416, 434 (1920), which held, “No doubt the great body of private relations usually fall within the control of the State, but a treaty may override its power.” See also United States. V. Selkirk, 258 F. 775 (S.D. Tex. 1919); United States v. Rockefeller, 260 F.346 (D. Mon. 1919); and United States v. Lumpkin, 276 F. 580 (N.D. Ca. 1921).

The Fish and Wildlife Service’s constitutional authority thus arises from treaties. After the adoption of several fishing treaties, Congress created the U.S. Fisheries Commission; see 16 Stat. 594. When the migratory bird treaties were ratified, this agency apparently acquired authority over migratory birds.

Later, the Convention on International Trade in Endangered Species of Wild Fauna and Flora was adopted in 1973; see 27 U.S.T. 1087. As a result of this treaty, on December 28, 1973, Congress enacted the “Endangered Species Act,” 87 Stat. 884. Several cases have noted that the power to control endangered species arises from this treaty; see Palila v. Hawaii Dept. Of Land and Resources, 471 F.Supp. 985 (D. Haw. 1979); Utah v. Marsh, 740 F2d 799 (10th Cir. 1984); and Leslie Salt Co. v. United States, 896 F2d 354 (9th Cir. 1990).

The wetlands convention was ratified in 1986 and about 30 days later, Congress adopted the “Emergency Wetlands Resources Act of 1986,” 100 Stat. 3582. It is clear the U.S. Fish and Wildlife Service’s authority arises from these treaties and this agency thus has an “international” jurisdiction. The U.S. Fish and Wildlife Service is as much a treaty-based agency as the Great Lakes Fishery Commission (16 U.S.C. 931), and the Pacific Salmon Commission (16 U.S.C., 3631).

If this federal agency is based upon treaty, are there others?

Part III: FDA, DEA find basis in international treaties

The prior two articles in this series have discussed the constitutional basis for the establishment of the U.S. Fish & Wildlife Service and in them it was demonstrated that this agency has its origins within the federal treaty power. Are there more such agencies? How about the DEA and FDA?

Control over the possession and sale of any item within the states is not a power possessed by Congress. This was so held in United States v. DeWitt, 76 U.S. 41, 45 (1870), which tested the constitutionality of a federal revenue act making it illegal to sell illuminating oil of a certain flammability. Here, the Court held Congress did not have the power to penalize these sales:

“As a police regulation, relating exclusively to the internal trade of the States, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as, for example, in the District of Columbia. Within state limits, it can have no constitutional operation.”

More than 40 years later, Congress enacted a federal drug law designed to make criminal the possession of contraband drugs like opium. Based upon the decision in DeWitt, the supreme Court held in United States v. Jim Fuey Moy, 241 U.S. 394 (1916), that Congress did not have power to make penal mere possession of drugs within the states. These two cases have never been reversed, so how did we get the DEA? Like the Fish & Wildlife Service, the origin of this federal agency is also in treaties.

In 1912, the Senate adopted the International Opium Convention - see 38 Stat. 1912. Later, this convention was supplemented by a similar convention of 1913, the Multilateral Narcotics Drugs Convention, ratified on March 31, 1932, 48 Stat. 1543, which was thereafter implemented by appropriate federal legislation designed to control poppy production within this country. In Stutz v. Bureau of Narcotics, 56 F Supp. 810, 813 (N.D. Cal. 1944), some poppy growers sought an injunction to enforcement against them of the provisions of the act implementing the convention; their argument being the act invaded the reserved powers of the Tenth Amendment. In rejecting this argument and holding that the act applied within the jurisdiction of California, the Court declared:

“The competency of the United States to enter into treaty stipulations with foreign powers designed to establish, through appropriate legislation, an internationally effective system of control over the production and distribution of habit forming drugs is not questioned. The obligations of the United States incurred as a party to the two Conventions heretofore mentioned were lawfully undertaken in the proper exercise of its treaty making power. And Congress is constitutionally empowered to enact whatever legislation is necessary and proper for carrying into execution the treaty making power of the United States.”

Other cases have also noted that control over drugs by the federal government arises from these treaties - see United States v. Rodriguez-Camacho, 468 F2d. 1220 (9th Cir. 1972); and NORML v. Ingersoll, 497 F2d 654 (D.C. Cir. 1974), later opinion at 559 F2d. 735 (D.C. Cir. 1977). The jurisdiction of the DEA is therefore based upon these drug treaties and it thus has an international jurisdiction. Henry Hudson, Randy Weaver’s defendant and the former head of the Marshal’s Service, stated as much on his Sunday afternoon radio show in the D.C. area back in March of this year.

The power of the DEA to control “bad” drugs such as opium and cocaine is constitutionally indistinguishable from the similar power of the FDA to control other “drugs” such as Vitamin B and shark cartilage. If the DEA is a treaty-based federal agency, is it not possible that so is the FDA? As you might expect, the authority of the FDA arises from a 1906 international Agreement for Unification of Pharmacopeial Formulas for Potent Drugs.

There are other examples of treaties being used to provide jurisdiction for federal crimes. Of course, Congress completely lacks delegated authority to control prostitution within the states. However, the Agreement for Repression of Trade in White Women was ratified by the Senate on March 1, 1905 - see 35 Stat. 1979. The implementing legislation for this treaty was the White Slave Traffic Act, 36 Stat. 825.

The supreme Court has noted that this treaty provides jurisdiction to enact laws on this subject; see United States v. Portale, 235 U.S. 27 (1914). But, even with jurisdiction being based upon this treaty, there are limits to prosecutions for violations thereof and everything relating to prostitution cannot be federally controlled - see Keller v. United States, 213 U.S. 138 (1909).

In summary, it is quite clear that the U.S. Fish & Wildlife Service, DEA and FDA are treaty-based federal agencies. Under the U.S. Constitution, Congress has the power to make criminal four types of conduct: treason, counterfeiting, piracies and felonies on the high seas, and offenses against the laws of nations.

Very few people discuss which precise federal crimes fall within the category of offenses against the laws of nations and it would be very beneficial if we knew which crimes were of this type. Obviously, the criminal provisions of the federal gambling laws and the federal drug laws can be but one thing: offenses against the law of nations.