The opinion of the court was delivered by: HOLTZOFF
The defendant Peace Information Center has been indicted on a charge of violating the Foreign Agents Registration Act,
in failing to register as an agent of a foreign principal. The individual defendants are charged in their capacity as officers and directors of Peace Information Center with failure to cause the latter to register. The defendants move to dismiss the indictment on the ground that the statute is unconstitutional, and on the further ground that the indictment is defective.
The Foreign Agents Registration Act requires every agent of a foreign principal to file a registration statement with the Attorney General setting forth certain information specified in the statute. In brief, a foreign principal is defined as a government of a foreign country, a foreign political party, or an individual affiliated or associated with either of them; a person outside of the United States; an organization having its principal place of business in a foreign country; or a domestic concern subsidized by any one of the former. The Act further defines the term 'agent of a foreign principal'. In effect, the definition includes any person who acts as a publicity agent or public-relations counsel for a foreign principal; any person who collects information, or reports information to a foreign principal; and any person who engages in other similar activities that are described in the Act in considerable detail. Diplomatic and consular representatives, persons engaged in trade or commerce and press associations are expressly exempted. The Act provides that no person shall act as an agent of a foreign principal unless he has filed a registration statement with the Attorney General. The Act further requires every person who is an agent of a foreign principal to file a registration statement with the Attorney General. The contents of the statement are prescribed. A wilful violation of the Act is made a criminal offense.
'Incontrovertible evidence has been submitted to prove that there are many persons in the United States representing foreign governments or foreign political groups, who are supplied by such foreign agencies with funds and other materials to foster un-American activities, and to influence the external and internal policies of this country, thereby violating both the letter and the spirit of international law, as well as the democratic basis of our own American institutions of government.
'Evidence before the Special Committee on Un-American Activities disclosed that many of the payments for this propaganda service were made in cash by the consul of a foreign nation, clearly giving an unmistakable inference that the work done was of such a nature as not to stand careful scrutiny.
'As a result of such evidence, this bill was introduced, the purpose of which is to require all persons who are in the United States for political propaganda purposes- propaganda aimed toward establishing in the United States a foreign system of government, or group action of a nature foreign to our institutions of government, or for any other purpose of a political propaganda nature- to register * * * and to supply information about their political propaganda activities, their employers, and the terms of their contracts.
'This required registration will publicize the nature of subversive or other similar activities of such foreign propagandists, so that the American people may know those who are engaged in this country by foreign agencies to spread doctrines alien to our democratic form of government, or propaganda for the purpose of influencing American public opinion on a political question.'
In Viereck v. United States, 318 U.S. 236, 241, 63 S. Ct. 561, 563, 87 L. Ed. 734, which involved a conviction under this statute, Chief Justice Stone gave the following explanation of the objectives of the Act: 'The Act of 1938 requiring registration of agents for foreign principals was a new type of legislation adopted in the critical period before the outbreak of the war. The general purpose of the legislation was to identify agents of foreign principals who might engage in subversive acts or in spreading foreign propaganda, and to require them to make public record of the nature of their employment. But the means adopted to accomplish that end are defined by the statute itself, which, as will presently appear more in detail, followed the recommendations of a House Committee which had investigated foreign propaganda. These means included the requirement of registration of agents for foreign principals- with which it appears that petitioner complied- and the requirement that the registrant gave certain information concerning his activities as such agent.' The constitutionality of the statute was evidently assumed in that case, for it was not discussed.
The objection that the statute is invalid will be first considered. The question of constitutionality of an Act of Congress must be approached from two standpoints and involves two basis considerations. First, is the subject matter of the statute within the legislative powers of the Congress? Second, does the statute transcend any limitation on the exercise of these powers?
As concerns the first of these aspects, we find two distinct bases in the powers of the Congress justifying action regarding the subject matter covered by the Act. One is the authority of the Congress to legislate on the subject of foreign relations. The power of the Federal Government in respect to external affairs differs drastically in its origin from that in respect to domestic matters. The former is not derived from the Constitution. It is not among the enumerated or implied powers conferred by the Constitution on the Federal Government. It is an inherent power that came into being before the adoption of the Constitution and now exists outside of the fundamental instrument. It is a power that automatically passed from Great Britain to the United States as an entity, and not to the individual States, when the external sovereignty of Great Britain in respect to the colonies came to an end.
This doctrine was developed and approved by the Supreme Court in the epoch-making opinion of Mr. Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-318, 57 S. Ct. 216, 219, 81 L. Ed. 255:
'It will contribute to the elucidation of the question if we first consider the differences between the powers of the federal government in respect of foreign or external affairs and those in respect of domestic or internal affairs.
'The two classes of powers are different, both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that field, the primary purpose of the Constitution was to carve from the general mass of legislative powers then possessed by the states
such portions as it was thought desirable to vest in the federal government, leaving those not included in the enumeration still in the states. Carter v. Carter Coal Co., 298 U.S. 238, 294, 56 S. Ct. 855, 865, 80 L. Ed. 1160. That this doctrine applies only to powers which the states had, is self-evident. And since the states severally never possessed international powers, such powers could not have been carved from the mass of state powers but obviously were transmitted to the United States from some other source. During the Colonial period, those powers were possessed exclusively by and were entirely under the control of the Crown. * * *
'As a result of the separation from Great Britain by the colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency- namely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of ...