# Estep v. United States/Concurrence Rutledge

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Murphy Rutledge Frankfurter
* Dissenting Opinion Burton
United States Supreme Court
327 U.S. 114
ESTEP v. UNITED STATES. SMITH
Argued: Nov. 7, 1945. --- Decided: Feb 4, 1946
Mr. Justice RUTLEDGE, concurring.
I join in the result in each case and in the Court's opinion for the reasons it sets forth. A further reason would force me to this result. In my judgment a contrary construction would invalidate the statute. I have no doubt that Congress could make administrative or executive action final in such matters as these in the sense of excluding all judicial review, excepting only what may be required by the Constitution in the absence of suspension of the writ of habeas corpus. Cf. Ex parte McCardle, 6 Wall. 318, 18 L.Ed. 816; Lockerty v. Phillips, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339; Ng Fung Ho v. White, 259 U.S. 276, 42 S.Ct. 492, 66 L.Ed. 938.
But as I do not think Congress can make it a crime punishable by the federal judicial power to violate an administrative order without affording an adequate opportunity to show its constitutional invalidity, cf. Yakus v. United States, 321 U.S. 414, 460, 64 S.Ct. 660, 684, 88 L.Ed. 834, dissenting opinion, so even more do I not think Congress can make criminal the disobedience to such an order allowing no opportunity whatever for showing its unconstitutionality. It is one thing to deny jurisdiction of the courts altogether, save in so far as the Constitution of its own force may preserve the jurisdiction. It is altogether different to confer jurisdiction for enforcement purposes, but in doing so to cut off all right of defense on constitutional grounds.
To sustain such a view not only would have the courts marching up the hill in the criminal case and down again in habeas corpus. It would make the judicial function a rubber stamp in criminal cases for administrative or executive action. And it would close the trap which in Billings v. Truesdell, 321 U.S. 542, 558, 64 S.Ct. 737, 746, 88 L.Ed. 917, we said would be set if Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305, were construed to permit what it is now sought to have done to the petitioners.

## Notes

* ↑ Under the Selective Draft Act of 1917, the civil courts were not called upon to enforce induction orders by criminal proceedings; for the receipt of such an order automatically subjected a draftee to military law and for disobedience thereof he was triable by a court-martial for desertion. See United States v. McIntyre, 9 Cir., 4 F.2d 823; Billings v. Truesdell, 321 U.S. 542, 545, 546, 64 S.Ct. 737, 740, 741, 88 L.Ed. 917; cf. The Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856.
* ↑ And see the authorities cited in the Court's opinion, 321 U.S. at pages 433, 435, 64 S.Ct. at pages 671, 672, 88 L.Ed. 834. Apart from the question of the validity of splitting a criminal trial into civil and highly attenuated criminal parts, the issue in the Yakus case related to the adequacy of the opportunity allowed for challenging the order's validity in the Emergency Court of Appeals. The ruling did not comprehend a situation where no opportunity is afforded prior to or during the trial.
* ↑ It is not necessary in these cases to determine whether Congress could confine the scope of review in the criminal cause, on constitutional grounds, to those which might be asserted in habeas corpus after conviction. The very fact that ordinarily the permissible scope of such objections in the latter type of proceeding is considerably more restricted than in the former is additional reason for not accepting the Government's view that Congress intended to allow review by habeas corpus but not by defense in the criminal trial.
That view, of course, rejects the idea that 'final' in the statute 'means final,' that is, beyond judicial reach in any manner, as it likewise implicitly but necessarily denies that 'withi the jurisdiction'-of the local boards-is wholly geographical.
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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