Nevertheless, plaintiffs in the instant cases have initiated a new wave of litigation in the federal district court, seeking to undo all the jurisprudence crafted by the Court of Customs and Patent Appeals. Their argument for district court jurisdiction grows out of their reading of Yoshida. Yoshida declared that the Congressional delegation of surcharge authority to the President was included not in any statutes explicitly denominated as trade statutes, such as the Trade Act of 1930 or the Trade Expansion Act of 1962, but in the Trading with the Enemy Act, 50 U.S.C.App. 1 et seq. Since the bulk of litigation arising under the TWEA comes into the district courts, plaintiffs assert that their challenge to the surcharge program belongs here, too. This amounts to a contention that Yoshida should not have filed its suit in the Customs Court, that the Customs Court should not have accepted jurisdiction, that the Court of Customs and Patent Appeals erred in reaching the merits of the challenge to the import surcharge program, that it erred a second time in adjudicating the Alcan case, and that Congress erred in holding up administrative protests pending completion of the Yoshida litigation. Since both Congress and the Court of Customs and Patent Appeals are authoritative sources of wisdom regarding Customs Court jurisdiction, and since the Supreme Court has chosen not to speak on the matter, plaintiffs ask too much of this tribunal in claiming the right to come before it. However, ambiguities in the jurisdictional lines between the Customs Court and the district courts and in the implications to be drawn from Yoshida merit brief clarification.
Plaintiffs argue that the TWEA is not considered a customs law, and that the district courts ordinarily have taken jurisdiction of questions arising under the Act. Assuming, therefore, that the Yoshida court was correct in locating the pertinent Congressional delegation of authority within the TWEA, it should follow that the merits of the delegation question can be argued all over again, this time in the district court.
As defendants point out in their brief, the TWEA, as originally enacted in 1917, was strictly a war measure. Its purpose was to prohibit trade with wartime enemies and to authorize the President to seize enemy-owned property, administer it for the benefit of the United States, and dispose of it as Congress might direct.
Then, during the economic crisis of the 1930's, Section 5(b) of the Act, 50 U.S.C.App. 5(b), was selected by Congress as a convenient foundation upon which to fashion a broad delegation to the President of peacetime regulatory power over the economy. At the outbreak of World War II, the President's 5(b) powers were enlarged still further to authorize control, during either war or periods of declared national emergency, of all property in the United States owned by any foreign nation or citizen, friendly or otherwise. Thus, by 1941 the title of 50 U.S.C.App. 1 et seq. was a misnomer; Section 5(b) of the Act permitted the President, among other things, to "regulate" the "importation" of "any property" in which "any foreign country" had "any interest." This was the crucial language in the Yoshida decision.
Authority as broad as this permits the President to involve himself in a range of economic regulation, some of which would involve matters within the purview of the district courts and some within the exclusive jurisdiction of the Customs Court. That many matters arising under the TWEA, and under Section 5(b) in particular, are adjudicated by the district courts is beside the point; the issue is where litigation involving the import surcharge program in particular belongs.
It should be noted, first, that Presidential Proclamation 4074 levied "supplemental" charges upon articles already "dutiable." The structure of duties upon which the supplemental charges were superimposed are set out in the Tariff Schedules of the United States, whose limits are specifically legislated by Congress and whose administration is in the hands of the Bureau of Customs of the Treasury Department. The "protest" procedure of 19 U.S.C. § 1514, described previously, exists for the handling of challenges to the Tariff Schedules. As indicated above, not only does the procedure cover protests against the "amount of duties chargeable" and "all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury," it also anticipates challenges to "the legality of all orders . . . entering into" decisions of customs officers. The language of 28 U.S.C. § 1582, which sets out the jurisdiction of the Customs Court, tracks the quoted language exactly, thereby providing judicial review of administrative dispositions of protests.
The plain words of 28 U.S.C. § 1582 indicate that litigation involving the surcharge program belongs in the Customs Court. Moreover, given the unquestionable allocation to the Customs Court of challenges to the Tariff Schedules, including issues of their underlying constitutionality, see J. C. Penney Company v. United States Treasury Dept., 439 F.2d 63, 65-67 (1971), it would be nonsensical to conclude that challenges to a program of surcharges built upon the Schedules should be matters within the jurisdiction of a different court:
[Proper] administration of the customs laws requires a complete, integral, smooth-functioning system of customs law justice. Such an end could not be accomplished if customs issues were fractionalized so that the district courts deal with certain issues arising out of customs controversies while the Customs Court concerns itself with the remaining customs issues. Penney, supra at 66.
Apart from the inherent logic of restricting any further litigation over the surcharge program to the Customs Court, it should be noted that Congress recognized the jurisdiction of the customs court system over challenges to the surcharge program in its passage of Section 611 of the Trade Act of 1974, cited earlier. The Senate Finance Committee, which originated Section 611, referred to the Yoshida litigation in its Report on the Bill:
This extension [for the processing of protests] would, in effect, represent a limited amendment to section 515(a) of the Tariff Act of 1930. The surcharge under the above Presidential Proclamation 4074 was recently found in the Customs Court to be void as an ultra vires act on the part of the President. That decision was subsequently appealed. This section would permit the resolution of that appeal and any subsequent appeals without denying the thousands of protests already made. 1974 U.S.Code Cong. and Admin.News at 7363.