# United States v. Oregon (366 U.S. 643)/Dissent Douglas

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* Opinion of the Court
* Dissenting Opinion Douglas
United States Supreme Court
366 U.S. 643
United States v. Oregon (366 U.S. 643)
Argued: April 25, 1961. --- Decided: May 29, 1961
Mr. Justice DOUGLAS, with whom Mr. Justice WHITTAKER concurs, dissenting.
I do not see how this decedent's estate can constitutionally pass to the United States. The succession of real and personal property is traditionally a state matter under our federal y stem. Mager v. Grima, 8 How. 490, 493-494, 12 L.Ed. 1168. That tradition continues. United States v. Burnison, 339 U.S. 87, 91-92, 70 S.Ct. 503, 505-506, 94 L.Ed. 675; Clark v. Allen, 331 U.S. 503, 517, 67 S.Ct. 1431, 1439, 91 L.Ed. 1633; Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 452; Lyeth v. Hoey, 305 U.S. 188, 193, 59 S.Ct. 155, 158, 83 L.Ed. 119. An individual can contract away his assets-making the United States the promisee-and the contract will be enforced, provided it is valid under state law. United States v. Stevens, 302 U.S. 623, 627, 58 S.Ct. 388, 390, 82 L.Ed. 484. It may be that an action in quantum meruit would lie against the estate of a person who, though utterly incompetent as Adam B. Warpouske concededly was, received treatment at a federal hospital. It may be that the United States could appropriate all unexpended funds from federal pensions or federal insurance policies in exchange for the services rendered an incompetent. See United States v. Hall, 98 U.S. 343, 25 L.Ed. 180; Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424; cf. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 80 S.Ct. 792, 4 L.Ed.2d 804. The power of Congress to legislate concerning the claims of all veterans, whether competent or incompetent, is well settled. Hines v. Lowrey, 305 U.S. 85, 59 S.Ct. 31, 83 L.Ed. 56.
We deal here, however, with an inheritance that the incompetent veteran received from his brother-an estate worth about $13,000. How Congress can provide for that sum to pass to the United States is difficult to understand. Oregon has provided how the property of one who dies intestate and without heirs shall be distributed; and that is its constitutional right under the Tenth Amendment. Never before, I believe, has a federal law governing the property of one dying intestate been allowed to override a state law. Some state inheritance laws are affected by federal policy, as we recently held in Kolovrat v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L.Ed.2d 218. Thus where a treaty made by the United States with another nation provides for reciprocal inheritance rights by the nationals of the two countries, a State cannot provide otherwise. If it could, one State would indeed be revising the foreign policy that the Federal Government makes. In the context of the Fourteenth Amendment, the rights of a State to provide rules governing inheritance may also be compelled to bow to federal policy. See R.S. § 1978, 42 U.S.C. § 1982, 42 U.S.C.A. § 1982.
Yet the Supremacy Clause is not without limits. For a federal law to have supremacy it must be made 'in pursuance' of the Constitution. The Court, of course, recognizes this; and it justifies this federal law governing devolution of property under the Necessary and Proper Clause of Art. I, § 8.
The power to build hospitals and homes for veterans and to pay them pensions is plainly necessary and proper to the powers to raise and support armies and navies and to conduct wars. The power to provide for the administration of the estates of veterans (which are not made up of federal funds owing the veterans) is to me a far cry from any such power. But the present Act is of that character.
This federal law governing estates of veterans is phrased in the language of contract. It is designed to draw into the federal treasury all estates of the kind mentioned, whether they be worth six cents or a million dollars. The federal claim is not for services rendered, as no effort is made to restrict the amount of the federal claim to benefits received. The Act plainly is a federal succession law.
The Act under which the United States purports to act is now found in 38 U.S.C. §§ 5220-5228, 38 U.S.C.A. §§ 5220-5228. In its present form, it came into the law in 1941. Act of Dec. 26, 1941, 55 Stat. 868. Section 1 regulates the disposition of the property of any veteran who dies while in a Veterans' Hospital and who leaves personal property not disposed of by will and to which no surviving spouse, next of kin or heirs are entitled under the laws of his domicile. Such property, the Act says, 'shall immediately vest in and become the property of the United States.' § 1. The acceptance of care or treatment at a Veterans' Hospital is by the terms of the Act acceptance of the provisions of the Act, and has 'the effect of an assignment' of the property effective at death. § 1. The fact of death in a Veterans' Hospital of a veteran 'leaving no spouse, next of kin, or heirs' gives rise 'to a conclusive presumption' of a valid contract for the disposition of the property in that way to the United States. § 2. Moreover, the Veterans' Administration is authorized to administer the estate, paying creditors' claims, if presented within designated times, and granting them the preference and priorities prescribed by local law. § 4.
We know that, while the Act is based on 'a conclusive presumption' that a contract to assign the property to the United States was made, there was in fact no contract in this case. During the period of Warpouske's hospitalization-from March 1, 1956, to March 19, 1956, the day of his death-he was either comatose or semicomatose. We deal with a presumption that is contrary to the fact (cf. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519). We have then a case involving the power of Congress to provide for the administration of the estate of a deceased veteran where he has in fact made no assignment of it to the Federal Government. To what power is that necessary and proper? Only recently we warned against an expansive construction of the Necessary and Proper Clause. We stated that it is 'not itself a grant of power, but a caveat that the Congress possesses all the means necessary to carry out' the powers specifically granted. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 247, 80 S.Ct. 297, 304, 4 L.Ed.2d 268. Powers not given 'were reserved,' as Madison said. VI Writings of James Madison (Hunt ed.) 390. And 'no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them.' Ibid.
Veterans or anyone else may make the United States a beneficiary of their estate, absent a state law that precludes it. See United States v. Burnison, supra. But if it is 'fairly incident' to raising and supporting armies and navies and conducting wars for the United States to take over the administration of the personal property of veterans who die interstate, I see no reason why Congress cannot take over their real estate too. I see no reason why, if the United States can go as far as we allow it to go today, it cannot supersede any will a veteran makes and thus better provide for the comfort, care, and recreation of other ex-service men and women who are dependent on the United States for care. And the more money the Federal Government collects for veterans the better the care they will receive. No greater collision with state law would be present where Congress took realty or displaced an entire will than here. Oregon's law providing for escheat is as explicit as her law providing for the administration of the estates of deceased people. If a contract between the United States and an utterly incompetent person can be conclusively presumed to exist when the incompetent dies intestate, it can be where he leaves a will. If it can be conclusively presumed in case of a veteran, it can be conclusively presumed in case of any federal employee, in case of any federal officeholder, in case of any federal pensioner. Of course Congress cannot be expected to use this vast new power to the extreme. But we-unlike England-live under a written Constitution that limits powers, not entrusting the Constitution to the conscience of the legislative body.
The Tenth Amendment does not, of course, dilute any power delegated to the national government. That is one face of the truism that runs through our decisions. United States v. Darby, 312 U.S. 100, 124, 61 S.Ct. 451, 462, 85 L.Ed. 609; State of Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 534, 61 S.Ct. 1050, 1063, 85 L.Ed. 1487; Case v. Bowles, 327 U.S. 92, 101, 66 S.Ct. 438, 443, 90 L.Ed. 552. But when the Federal Government enters a field as historically local as the administration of decedents' estates, some clear relation of the asserted power to one of the delegated powers should be shown. At times the exercise of a delegated power reaches deep into local problems. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122, allowed the commerce power to extent to home-grown and home-used wheat, because total control was essential for effective control of the interstate wheat market. But there is no semblance of likeness here. The need of the Government to enter upon the administration of veterans' estates-made up of funds not owing from the United States-is no crucial phase of the ability of the United States to care for ex-service men and women or to manage federal fiscal affairs.
Today's decision does not square with our conception of federalism. There is nothing more deeply imbedded in the Tenth Amendment, as I read history, than the disposition of the estates of deceased people. I do not see how a scheme for administration of decedents' estates of the kind we have here can possibly be necessary and proper to any power delegated to Congress.
Raising money by borrowing or by taxing are explicitly provided for in Art. I, § 8. Raising money by appropriating assets of those who have a relationship with the Federal Government (as most people do today) is not among the enumerated powers. At bottom of the present statute, as the Court points out, is a desire to make those who use a Veterans' Hospital help finance its operations. Congress can set rates for services rendered; it can obtain from patients assignments of assets to the United States; it can induce and encourage people to make these hospitals beneficiaries under their wills. But I do not see how it is possible for the United States to take a man's property without his consent when the United States is not a creditor in the accepted sense. The only constitutional way in which that can be done is by taxation or by condemnation. This law as applied is indeed a levy that has no support in the Constitution; and it makes a serious inroad on the Tenth Amendment. With all deference, I dissent.

## Notes

* ↑ See Restitution, Restatement of the Law, Am.L.Inst. (1937), § 114; 5 Corbin on Contracts (1951) § 1109.
* ↑ Ore.Rev.Stat. 120.010 provides:
* ↑ Adam Warpouske spent a large part of his life in Veterans' Hospitals, especially during the years from 1930 to 1945. (The record also shows that he received care in the facilities of various states.) But the claim to administer his personal property arises solely from 'the fact of death' in a Veterans' Hospital.
* ↑ The inspiration for this law, as seen from the legislative history (H.R.Rep.No. 609, 77th Cong., 1st Sess.; S.Rep.No. 900, 77th Cong., 1st Sess.), was the Veterans' Administration, a fact which perhaps makes relevant the following observation: 'Politicians and taxpayers have assumed (with occasional phases of doubt) that a rising total in the number of civil servants must reflect a growing volume of work to be done. Cynics, in questioning this belief, have imagined that the multiplication of officials must have left some of them idle or all of them able to work for shorter hours. But this is a matter in which faih and doubt seem equally misplaced. The fact is that the number of the officials and the quantity of the work are not related to each other at all. The rise in the total of those employed is governed by Parkinson's Law and would be much the same whether the volume of the work were to increase, diminish, or even disappear. The importance of Parkinson's Law lies in the fact that it is a law of growth based upon an analysis of the factors by which that growth is controlled.' Parkinson, Parkinson's Law (1957), pp. 3-4.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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