ing officers to make the payments required by the Agricultural Adjustment Act (48 Stat. 31), I said:

"Ordinarily, I think, it does not lie within the province of a ministerial officer to question the validity of a statute which, insofar as he is concerned, merely imposes upon him a proper duty and has no bearing upon his constitutional rights. As stated by the Supreme Court in Aikins v. Kingsbury, 247 U. S. 484, 489, 'he who would successfully assail a law as unconstitutional must come showing that the feature of the act complained of operates to deprive him of some constitutional right.' It is not sufficient that the statute may adversely affect the rights of others; and it can make no difference that others who claim to be injured are assailing its constitutionality."

See also Smith v. Indiana, 191 U. S. 138, 148; Columbus & Greenville Ry. v. Miller, 283 U. S. 96, 99.

The head of a department is under no duty to question or to inquire into the constitutional power of the Congress (36 Op. 21, 25). Such matters arise in the Congress, or with the President, and are not "questions of law arising in the administration of his department," within the contemplation of the statute under which the heads of the departments are authorized to require my opinion (U. S. C., title 5, sec. 304). This provision has been long construed as limiting the scope of opinions to specific cases, actually arising, in which the head of a department is authorized to make some determination, or to take some action, in connection with which some guidance is required.1

Assuming, therefore, that in the administrative branch of the Government only the President ordinarily can have

120 Op. 463, 464; 32 Op. 531, 536.

The Attorneys General have at times had occasion to declare their inability under the statutes to render opinions for the guidance of the Congress. 36 Op. 532, and other opinions therein cited. (A comprehensive list of such opinions appears in the Congressional Record of March 26, 1936, v. 80. p. 4370). In 36 Op. 21, 25, my predecessor had occasion to point out that questions concerning the constitutionality of contemplated legislation do not arise in the department which would administer the statute, if enacted. In one instance the Congress, recognizing these statutory limitations, specifically "authorized and directed" the Attorney General to render to the Secretary of War an opinion involving the constitutional power of the Congress in connection with certain contemplated legislation, and required the Secretary of War to transmit the opinion to the Congress. 25 Op. 195.

proper interest in questioning the validity of a measure passed by the Congress, and that such interest ceases when he has expressed his approval or disapproval, it necessarily follows that there rarely can be proper occasion for the rendition of an opinion by the Attorney General upon its constitutionality after it has become law.

Necessarily when the Attorney General, at the request of the President, is considering pending legislation, he must often point out doubts and uncertainties of varying degrees of merit and must deal with the matter in a practical and, at times, argumentative fashion. Since such opinions are merely for the assistance of the President and are ordinarily regarded as confidential, the Attorney General may state his views fully and freely, with advantage to the President and without embarrassment to any one. To illustrate the manner of treatment sometimes required, I quote below from two unpublished opinions rendered during a former administration on proposed legislation, connected in no way with the legislation which has drawn forth this letter.

*

(A) "The question is one which has been debated back and forth by lawyers, legislators and writers on constitutional law * * Substantial arguments have been adduced on both sides of the question. The strict constructionists take the view that Congress has not the power and those inclined to more liberal views reach the opposite conclusion * * *. It is one of those questions where a little. statesmanship must be added to legal arguments to reach a sound conclusion. * Practical considerations lead to the conclusion that the liberal view, sustaining the power, should be adopted. * **I do not believe the Congress would pay any attention to an opinion of an Attorney General to the effect that the power does not exist."

(B) "In my judgment it would not be wise to base objection to this measure on constitutional grounds. * This measure falls into a class with innumerable others that

2 A number of such opinions have been published. 5 Op. 254, 259; 10 Op. 426, 435; 12 Op. 337, 347; 18 Op. 18, 27; 25 Op. 194, 213-218; 25 Op. 422; 27 Op. 327, 330; 30 Op. 88; 37 Op. 403, 407.

have been enacted by Congress since the organization of the Government and which, if constitutional at all, would have to be sustained under the so-called general welfare clause because there is no specific authority elsewhere in the Constitution. The question as to the extent of authority of Congress under the general welfare clause has never been decided by the Supreme Court of the United States and is not likely to be. An attack on this measure on the ground that it is not authorized by the Constitution would be met instantly with the argument that many measures open to the same objections have been approved during this and prior administrations; and to single out this one measure for constitutional criticism would result in inconsistency which Icould not be defended.”

The situation is fundamentally different when the Attorney General is asked to pronounce upon the constitutionality of a statute after it has been passed by the Congress and approved by the President. Both then have evidenced their determination that the measure is constitutional. What before remained in the sphere of debate has now been elevated to the domain of law. Should the At

torney General now vouchsafe his opinion holding the legislation unconstitutional, he would set himself up as a judge of the acts of the Congress and of the President. Moreover, should a practice of rendering opinions upon requests such as that submitted in this instance prevail, the occasion surely would arise when, entertaining doubts which he could not conscientiously put aside, he would be compelled to declare, with disturbing public effect, the invalidity of a statute, while in effect voicing only a personal view that might ultimately be rejected by the courts. Of course, if the Attorney General should regard a statute as clearly constitutional, an opinion to that effect might not be immediately harmful-aside from the fact that he might later be called

Since that time the Supreme Court has had occasion, in United States v. Butler, 297 U. S. 1, 66, to approve the "Hamiltonian position" of the broad scope of the spending power under the general welfare clause-a view which I had ventured to rely upon in my opinion of August 26, 1935, 38 Op. 258, thus, apparently, ending one phase of the historic controversy regarding the interpretation of the general welfare clause.

upon to defend the statute in the courts under such tactical disadvantage as may flow from a prior public exposition of his position. Often, however, although the Attorney General should conclude in favor of the constitutionality of a measure, he could not deny the presence of doubt; and yet, as the Government's chief advocate in the courts, he would hesitate publicly to express misgivings which would only supply an issue that he must later meet in the performance of his official duties.

Even assuming the existence of some doubt about the validity of enacted legislation, it should always be remembered that its constitutionality may never be drawn into question, or may be questioned only in a particular aspect in its application to a specific set of facts. Just as it is not the function or the practice of the courts to make moot determinations of the constitutionality of entire statutes, but to decide actual cases arising under specific factual situations to which the statutes may relate, so there would seem to be no reason why the Attorney General should rule upon such broad, abstract questions-especially when, as I have stated, the constitutionality of the statute may never be challenged.

I think that the duty of the Attorney General, in connection with inquiries from the heads of the departments and independent establishments as to the constitutionality of statutes, is correctly indicated by the following excerpt from the opinion of May 6, 1919 (31 Op. 475, 476), rendered by the Attorney General to the Secretary of the Treasury, concerning the taxation of judges' salaries:

"Ordinarily, I would be content to say that it is not within the province of the Attorney General to declare an act of Congress unconstitutional-at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department— and that when an act like this, of general application, is passed it is the duty of the executive department to administer it until it is declared unconstitutional by the courts."

It is interesting to observe that, notwithstanding this statement, the Attorney General proceeded to examine and

pass upon the question, with consequences which emphasize the futility of such a practice. He concluded that "the act requiring the salaries of the officials in question to be included as a part of their gross incomes for the purposes of the income tax is valid and constitutional." Later the Supreme Court adopted a contrary view. Evans v. Gore, 253 U. S. 245. His opinion, given as an exception to the rule which he expressly recognized, clearly accomplished nothing of substance.

It is true that many opinions of the Attorneys General have dealt with constitutional questions arising in connection with enacted legislation. Some of them have interpreted general statutes in the light of the Constitution, applying the principle that ambiguous language is to be construed, if possible, so as to avoid imputing to the legislature an intention that would transcend prescribed restrictions or raise serious constitutional questions. Some opinions have examined Supreme Court decisions and stated, for administrative guidance, the apparent scope thereof and the resulting effect upon the statutes under consideration. Others come within the recognized exception concerning statutes presenting possible conflict with prerogatives of the executive department. Very few have discussed constitutional authority in sweeping terms. I shall not further attempt to distinguish or classify these prior opinions, but they are to be sharply distinguished from the one asked for in the present instance. The practice which has generally prevailed in the past is salutary and departures from it should be viewed with concern.

The issuance of bonds by private corporations is frequently accompanied by an opinion of counsel as to their validity. It is this practice which has inspired the request for an opinion in the present instance. The distinction, however, is apparent. Legal questions arising in connection with the issuance of obligations by a department or agency of the United States are referred to its chief law officer and, thereafter, if doubt still exists, may be referred to the Attorney General for an opinion. Such opinions,