recognizing that in passing the BSA, "Congress was concerned about a serious and widespread use of foreign financial institutions, located in jurisdictions with strict laws of secrecy as to bank activity, for the purpose of violating or evading domestic criminal tax, and regulatory enactments."
How later courts described this case
- recognizing that in passing the BSA, "Congress was concerned about a serious and widespread use of foreign financial institutions, located in jurisdictions with strict laws of secrecy as to bank activity, for the purpose of violating or evading domestic criminal tax, and regulatory enactments."
- holding that the first amendment does not create a per se rule forbidding disclosure of contributor names in all ___ __ situations
- holding that self-incrimination claim based on forced reporting not ripe because “[w]e cannot, on the basis of supposition that privilege will be claimed and not honored, proceed now to adjudicate the constitutionality under the Fifth Amendment” (citation omitted)
- holding that regulations for the reporting of financial transactions by financial institutions under the Bank Secrecy Act of 1970 abridge no Fourth Amendment rights of such institutions
Written by the judges who cited it.
Later courts went against this
Disagreed with by United States v. Mitchell Miller, Susan McDuffie Weeks, and John Henry McDuffie, 508 F.2d 588 (1975)
We disagree with the panel holding that such a result is either required or supported by California Bankers Association v. Shultz, 1974, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812.
The opinion
Mr. Justice Brennan,
dissenting.
I concur in Parts I and II-A of Mr. Justice Douglas’ opinion. As to the Act’s foreign and domestic reporting requirements,- however, I see no need to address the independent constitutional objections the plaintiffs below attempt to raise. The reporting requirements are inseparable from — and in some cases considerably broader than — the recordkeeping requirements. Thus, since in my view the recordkeeping provisions unconstitutionally vest impermissibly broad authority in the Secretary of the Treasury, see United States v. Robel, 389 U. S, 258, 269 (1967) (Brennan, J., concurring in result), the reporting provisions, too, are invalid.
The symbiotic nature.of the recordkeeping and reporting requirements is clearly manifested in the expressions of congressional purpose found in 12 U. S. C. § 1951 (b) and 31 U. S. C. § 1051 , which lay down blanket commands that “records” and “reports” be required where they “have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.”
One example of this interdependence may be found in 12 Ú. S'. C. §§ 1951-1953, which apply to “any uninsured *92 bank or uninsured institution,” terms which are themselves not defined in the Act. Section 1953 authorizes the Secretary to require the keeping of “any records or evidence of any type” so long as he may require them of insured banks. Section 1952 authorizes him to require “the making of appropriate reports by uninsured banks or uninsured institutions of any type with respect to their ownership, control, and managements and any changes therein.” As appears from the legislative history, these provisions work in tandem, permitting the Secretary to detect instances of the use of sham or illegal transactions in which the institutional party is merely an alter ego of the customer it purportedly services. See S. Rep. No. 91-1139, p. 3 (1970); Hearings on Foreign Bank Secrecy and Bank Records (H. R. 15073) before the House Committee on Banking and Currency, 91st Cong., 1st and 2d Sess., 10-14 (1969-1970). Neither provision would usefully aid the detection of such practices without the other.
Not only are the reporting and recordkeeping requirements functionally inseparable, but the reporting provisions impose additional requirements, thus adding to the power of the Secretary to invade individual rights. For instance, the reporting requirement for all transactions involving domestic financial institutions, 31 U. S. C. § 1081 , authorizes the Secretary to require reports at any time and in any manner and detail, of any transaction that involves the “payment, receipt, or transfer of United States currency, or such other monetary instruments as the Secretary may specify.” Although the . Secretary has by regulation limited the meaning of “monetary instruments,” 31 CFR § 103.11 , and invoked the section only where the transaction involves more than $10,000, see 31 CFR § 103.22 , this in no way alters the fundamental vice of the statute.
*93 That vice, see concurring opinion in United States v. Robel, supra, is the delegation of power to the Secretary in broad and; indefinite terms under a statute that lays down criminal sanctions and potentially affects fundamental rights. See Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963); Cantwell v. Connecticut, 310 U. S. 296, 304-307 (1940). My view in Robel applies here:
“Formulation of policy is a legislature’s primary responsibility, .entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite, standards, this policy-making function is passed on- to other agencies, often not answerable or responsive in the same' degree to the people. ‘[Standards of permissible statutory vagueness are strict in protected areas. NAACP v. Button, 371 U. S., at 432. ‘Without-explicit action by lawmakers, incisions of great constitutional import and effect would be relegated by default to administrators who? under our system of government, are. not endowed with authority to decide them.’ Greene v. McElroy, 360 U. S. 474, 507 .” 389 U. S., at 276.
In the casé of the Bank Secrecy Act, also potentially involving First, Fourth, and Fifth Amendment rights of the vast majority of our citizenry, it exceeds Congress’ constitutional power of delegation to empower the Secretary of the Treasury to require whatever reports and records he believes to be possessed of-a “high degree of usefulness” where the. purpose is-to further “criminal, tax, or regulatory investigations or proceedings.”