# Reply Brief — United States v. Harriss > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386408_0051%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1954 - **Citation:** 347 U.S. 612 ## Text Inthe Supreme Court of the Wuited States OcToBER TERM, 1953 No. 32 UNITED STATES OF AMERICA, APPELLANT v. Rosert M. Harriss, RatpH W. Moore, Tom LINDER, AND NATIONAL FARM COMMITTEE ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA REPLY MEMORANDUM FOR THE UNITED STATES Respondent Harriss insists that under the Criminal Appeals Act the Court must determine the validity of the Lobbying Act on its “face” without regard to the “‘particular applications of the statute sought to be made in an information filed thereunder’? (Harriss Br. 16), and his brief fires repeated broadsides at the entire Act, pay- ing little attention to the specific charges made against these four defendants in the information now before the Court. This memorandum is de- voted to a further consideration of this funda- mental position on which Harriss’s defense is almost entirely based. 276324—53 (1) aT 2 In our main brief (pp. 80-87), we refer to the accepted principles of federal constitutional] ad- judication which, ever since Hayburn’s Case, 2 Dall. 409, have moved this Court to refrain from giving advisory or venera] opinions on constitn- tionality and have tied constitutional] decisions to the case actually before the Court. These prin- ciples have heen expressly held applicable to con- stitutional appeals under the Criminal Appeals | Act. United States V. Petrillo, 332 U. 8. 1, & we. | 12; United States Vv. Congress of Industrial Oy- ganizations, 335 UV. S. 106, 110: Uncted States y, Spector 343. U. S. 169,172. And in the cases com- ing here under the Criminal] Appeals Act the Court has, as a matter of actual practice, con- sidered the Validity of a general criminal statute | in the light of the specific facts and circumstances presented in the particular indictment or informa- tion. See United States vy. Wurabach, 280 U. S. 396, 398, 399 (discussed in Government’s: main brief, pp. 50-51, 56, 77-78) ; United States y. Classic, 313 U. §. 299 (validity of federal civil rights legislation as applied to primary election in Louisiana) ; United States y, Darby, 312 U. 8. 100 (Fair Labor Standards Act); United States V. Southeastern nderwriters Assoc., 322 U. § 533 (Sherman Act as applied to insurance) ; United States y. Petrillo, 332 U. S. 1 (Lea Act). See also United States V. Congress of Industrial Organizations, 335 U.S. 106; United States vy. Williams, 341 U. 8.58. Weknow of no case under be BLURRED Copy 3 the Criminal Appeals Act in which the Court has invalidated a statute Without looking to the speci- fic allegations of the indictment or information,’ Cf. Fleming vy. Rhodes, 331 U. S. 100 (holding that 28 U.S.C. 1252 gives this Court jurisdiction, on direct appeal, to review “a ruling against the constitutionality of an act of Congress when the ruling of unconstitutionality is made in the ap- plication of the statute to a particular c¢ireum- stance * * * rather than upon the challenged statute as a whole’’), Nothing in the language of the Criminal Ap- peals Act (now 18 U.S. © 3731) smpports the defendants’ position or calls upoi the Court to reverse its practice, A direct ay peal is permitted “from a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or Judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.” %m’8U SG 3731. In deciding Whether to dismiss an information founded on a federal statute on the ground of invalidity, the —eeceateneneees "The Court has upheld, on direct appeal, an information which repeated the Zeneral words of a federal statute (United States Vv. Petrillo, 332 U. S. 1, 5-9, 10) while refus- Ing to pass on the validity of the act as applied to other, more specific, parts of the information until further proceedings had determined whether these specific allegations would be retained and proven (id. at 11-13). This result is entirely consistent with the established principle that the Court Will not invalidate a Statute unless it has no other choice and until it has an uppropriate record. 4 Distriet Court must, as in every constitutional] case in a trial court, consider the act on the record then before it, 7. @., as the statute is applied in the challenged information. The court’s deter- mination necessarily rests on the relationship of the information to the criminal] statute. There js no reason why this Court should be in a different Position on appeal and must close its eyes to the record before it? Aside from the serious breach in the established canons of constitutional ad- judication through the rendering of an advisory opinion unrelated to any facts or particular ap- plication, the result of such a change in approach Would be the extraordinary situation of review here on a basis totally different from that of the District Court. Respondent’s contention would also mean that since review under the Criminal Appeals Act would be divorced from faets or allegations it Would be entirely different from re- View of the Same case if the trig] judge had up- held the information, if the allegations of the information had been Proved and the defendants convicted, the Court of Appeals had affirmed, and this Court had granted certiorari to consider the very same constitutions] issues raised by the orig- al inal motion te distuiss, Even respondent Harriss <