Schneider v. Smith/Concurrence Fortas

by Abe Fortas

United States Supreme Court

390 U.S. 17

Schneider  v.  Smith

 Argued: Dec. 12 and 13, 1967. --- Decided: Jan 16, 1968

Mr. Justice FORTAS, concurring.

I concur in the opinion of the Court. Reversal is dictated because the interrogatories which petitioner refused to answer offend the First Amendment. Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). (They also pass the outermost bounds of reason. No agency may be permitted to require of a person, subject to heavy penalty, sworn essays as to his 'attitude toward the form of Government in the United States' or 'full particulars,' under oath, without time limit, as to contributions made and functions attended with respect to 250 organizations.) I agree that since Congress did not specifically authorize a personnel screening program, authority to impose procedures of the comprehensive type here involved, necessarily impinging on First Amendment freedoms, may not be inferred from dubious general language. The fault, however, is not that there was an inadequate or improper delegation, but that Congress did not authorize the type of investigation which was launched. Needless to say, Congress has constitutional power to authorize an appropriate personnel screening program and to delegate to executive officials the power to implement and administer it. See United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967).

Mr. Justice STEWART, agreeing with the separate views of Mr. Justice FORTAS, concurs in the judgment.

Mr. Justice WHITE, with whom Mr. Justice HARLAN joins, concurring in the result.

I agree with the Court that the Magnuson Act did not authorize the inquiry undertaken by the Coast Guard Commandant and that therefore the judgment of the District Court must be reversed. I express no opinion as to the scope of inquiry which Congress could constitutionally provide with respect to applicants for the position of merchant seaman.

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