Full opinion text
WILBUR K. MILLER, Associate Justice. The National Maritime Union of America, its president and two of its members, complain of the National Labor Relations Board. They seek to enjoin the enforcement of the provisions of the Labor Management Relations Act, 1947, which deny the privilege of being chosen as exclusive bargaining agent to a union which has not filed with the Secretary of Labor certain financial and structural information and the officers of which have not filed with the Board their affidavits denying membership in or affiliation with the Communist Party and denying belief in the overthrow of the United States Government by force; they say these provisions are unconstitutional. Plaintiff Union is a far flung organization of seamen. Its members are on ships in both oceans and in the Gulf of Mexico. During 1947 it expended more than $25,000 in attempting to recruit members among the sailors on ships in the Great Lakes. It was particularly interested in enrolling employees of the M. A. Hanna Company ■and the Wilson Transit Company, both of which operate fleets on the Lakes. The plaintiff labor organization had competition in that respect from the Seafarers International Union of North America, which was also attempting to organize the Hanna and Wilson seamen. Seafarers International filed petitions with the National Labor Relations Board pursuant to § 9(c) of the National Labor Relations Act, 29 U.S.C.A. § 159(c), raising questions concerning representation for collective bargaining of the employees of these two shipping companies. Hearing of this, the plaintiff Union intervened in the proceedings before the Board and sought the opportunity to be chosen as exclusive bargaining agent for the two bargaining units. While these petitions were pending before the Board, Congress enacted the Labor Management Relations Act, 1947, commonly known as the Taft-Hartley Act, which contains the provisions the plaintiffs assail as violative of the Constitution. The defendant Board called the plaintiff Union’s attention to those portions of the new statute which make the filing of the statements and affidavits to which we have referred obligatory upon a union which desires the privilege, conferred by the Wagner Act as amended, of being selected by a majority vote in a bargaining unit as exclusive bargaining agent for all the employees in the unit. Time for compliance was extended, first to September 30 and then to October 31, 1947, and the Maritime Union was warned by the Board that its non-compliance would make it ineligible to be chosen by the employees of the two companies to enjoy the statutory privilege of being their exclusive bargaining agent. But the Union did not file the required statements with the Secretary of Labor and its officers did not file with the Board the affidavits contemplated by the Act. In November the Board ordered that elections be held pursuant to the petitions of the Seafarers International Union but denied to the Maritime Union a place on the ballots because of its refusal to comply with the provisions of the Taft-Hartley Act, which are now assailed by it. In due course the elections were held. The results were inconclusive in the Hanna case so that a run-off election will he conducted at a later date. A majority of the employees of the Wilson company voted against union representation. Thereafter this suit was filed. It is necessary, we think, first to examine the defensive plea that the plaintiffs lack capacity to sue; for that purpose we shall consider separately the status of the four plaintiffs, three of whom are individuals, and the Act’s impact upon them. Although it is alleged that neither Curran, the president of the Union, nor any other officer, has executed and filed the affidavit contemplated by § 9(h), the complaint, verified by Curran, contains this affirmative allegation: “ * * * plaintiff Curran is not a member of the Communist Party, is not affiliated with said Party, does not believe in or advocate the overthrow of the government by force and violence, is not knowingly a member of and does not knowingly support or believe in any organization which advocates such doctrines, but has not executed the affidavit required by statute for the reason that it constitutes a trespass upon and an impairment of his right of free speech, press, and assembly, and for the further reason that the language of the statute is too vague, ambiguous and uncertain to establish a reasonable standard of conduct.” It thus appears that Curran has filed with us the affidavit which he asserts is unconstitutionally required by the statute. Filing with the Board an affidavit substantially similar to that contained in his complaint would prevent the denial of statutory benefits to his Union as far as his position as president is concerned. He is, consequently, quite willing and able to make the statutory affidavit but refrains from making and filing it with the Board solely because he regards § 9(h) as unconstitutional. Since he is not adversely affected by the statute, no injury can come to -him as an individual because of it. It follows that he asks us to answer an academic question for him, which the courts consistently decline to do. For this reason we conclude that Curran has no standing as an individual to maintain this suit. Neither can he do so in his capacity as president, for the Union sues as an entity and its president’s participation as a plaintiff is not necessary to enable that organization to state a cause of action. We conclude that Curran cannot sue in either capacity. The other two individual plaintiffs are seamen who are members of the plaintiff Union. They say that they will be deprived of representation by the collective bargaining agent of their choice; that they will be deprived of the opportunity to work under wage standards and working conditions established and maintained by the National Maritime Union, which wages and conditions are superior to any others in the industry; and that they will be deprived of a voice in the establishment of their wage standards and hiring and working conditions unless they surrender their membership in the National Maritime Union. These individual plaintiffs have no constitutional right to be represented by the collective bargaining agent of their choice. Each time a union, chosen by a bare majority vote in a bargaining unit, is certified as the exclusive bargaining agent for that unit, the employees who did not vote with the majority are deprived of representation by a collective 'bargaining agent of their choice. It has never been held that the Wagner Act is therefore invalid. Furthermore, neither the Constitution nor ary- statute guarantees the members of the National Maritime Union the right to work under wage standards and working conditions established and maintained by that Union. Nor will these two plaintiffs be deprived of a voice in the establishment of wage standards and hiring and working conditions unless they surrender their membership in the National Maritime Union. This is so because, if some union which complies with § 9 is voted for by a majority of those in the bargaining units to which these individuals belong, they will have through that union, regardless of their non-membership in it, a voice in the establishment of their wage standards and hiring and working conditions. This will be true even though they continue to be members of the National Maritime Union. If their bargaining units should cast a majority vote against any union, these individuals will continue to have the right to bargain with their employers as individuals, and the National Maritime Union to which they belong will continue to have the right to bargain collectively, for its members only, with those employers. It is true that in the latter instance there is no coercion oí law upon the employers to bargain with them or with their union; but they have no constitutional right to have that coercion put upon an employer, and no statutory right to it, except when an exclusive bargaining agent has been chosen by the employees. From what has been said, it is seen that these two individuals make no showing in the complaint of an invasion of their constitutional rights and so they cannot maintain this action. Considered on a motion to dismiss, the complaint does not show injury to the plaintiff Union’s constitutional rights so as to give it standing to challenge the validity of the portions of the statute here involved, for the reason that it is not affirmatively shown that the Union has a Communist among its officers. It appears from an affidavit in the record, however, that at least one of its officers is a member of the Communist Party, a fact which makes it impossible for the Union to qualify under § 9(h). That fact could be shown by a 'brief amended complaint. Since we have that information, we proceed to consider the constitutional validity of the three subsections of § 9. In entering upon a consideration of this case we bear in mind the elementary principle, which cannot too often be repeated, that a court usurps legislative functions when it presumes to adjudge a law void where the repugnancy between the law and the Constitution is not established beyond reasonable doubt. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other. So if a court be in doubt whether a law 'be or be not in pursuance of the Constitution — where the repugnancy is not clear and beyond doubt,— it should refrain from making the law void in effect by its judgment, lest it should be really repealing a valid law by a legislative act, instead of declaring it void by a judicial act. Quite apart from any statutory provision, employees have always had the right to organize trade unions, and through them to bargain collectively with employers concerning wages, hours, working conditions or any other appropriate subject. It is further true that a single employee has always had the right to bargain with his employer. Congress observed, however, that although employees had the right to organize and bargain, they did not have the power to do so on a basis of equality with employers; that this lack of power produced industrial unrest; and that strikes and other manifestations of such unrest interfered with the free flow of commerce. To correct the situation so observed, and pursuant to its broad power to regulate interstate commerce and to promote the general welfare, Congress acted to give employees equality of 'bargaining power and so to remove the basic cause of discontent which tended to impede commerce. It added to the fundamental right of employees to organize and to bargain with their employers, certain important privileges and benefits which had not existed theretofore. Not only was the right to organize unions and to bargain through them affirmed; but also the privilege of becoming the exclusive bargaining agent of all employees in a bargaining unit was extended to a labor organization favored by a majority of such employees. Moreover, employers were required to bargain collectively with the representative chosen by majority vote. This, to be sure, was an abridgment of the minority’s fundamental rights, as well as those of employers. But the importance of the broad public purpose sought to be served justified the means employed. Important in the consideration of the present case is the fact that, apart from the National Labor Relations Act, no union has the right to be exclusive bargaining agent. That extraordinary privilege is extended by the statute and except for the Act, employers are not under compulsion to bargain collectively. After some twelve years of experience with the Wagner Act, Congress said, after repeating the broad purpose of promoting the flow of commerce by protecting workmen’s right to organize and attain equality of bargaining power, and by so removing what are known to be sources of industrial strife: “Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed.” Having so declared, Congress proceeded to amend the Wagner Act by adding, inter alia, the three subsections of § 9 which are here assailed. Provision is still made to extend to a labor organization the important privilege of being chosen by a simple majority as the exclusive bargaining representative of all employees, which the employer is required to recognize. But, in order to eliminate “certain practices by some labor organizations, their officers, and members” which “have the intent or the necessary effect of burdening or obstructing commerce”, Congress decided to condition the privilege of being an exclusive bargaining agent with which an employer must deal. The Union’s position simply is that it lacked the power to do so in the manner set forth in § 9(f), (g) and (h). These provisions will be separately considered, except that we shall first take up one of the plaintiff’s contentions that is common to all three. It is contended that the defendants have exceeded their power under the statute because it is said there is no true statutory bar to the appearance of the plaintiff Union on the ballot, or even to its certification. In support of this idea the plaintiff points out that the Act merely declares that the Board shall not investigate a “question * * * concerning- the representation of employees, raised by a labor organization” unless it shall have complied with prescribed requirements. It observes that other provisions show that such a question is raised by petition. The plaintiff then points out that the question concerning representation involved in this case was raised by the petition of the Seafarers International Union; that the plaintiff merely intervened after the question had been raised, “to protect its own interests and those of its members.” This amounts to saying that the Board may do for an intervening union what the statute forbids it to do for a petitioning union; that is, that it may certify as exclusive bargaining agent a union which has refused to comply with the conditions precedent to that privilege, simply because the noncomplying union entered the Board’s proceeding by intervention. We cannot agree. Turning then to subsection (f), we find that it forbids the Board to investigate a question of representation raised by a labor organization under subsection (c), or to entertain a petition to authorize or rescind a closed shop agreement, or to issue a complaint pursuant to a union’s charge of unfair labor practices, unless-the union shall theretofore have filed, with the Secretary of Labor copies of its constitution and bylaws and a statement containing prescribed data concerning its financial setup and its general method of dealing with its members, and that it has furnished to each of its members a copy of the financial report required to be filed with the Department of Labor. We shall first summarize the plaintiff’s argument in support of its assertion that subsection (f) is unconstitutional. A direct reference to it in its principal brief is in these words: “ * * * If the Congress felt that the information prescribed by Sec. 9(f) was necessary, then there were other available means to require that the information be supplied; it was not necessary and, indeed, not reasonable to demand it under virtual threat of destruction.” The following appears in the reply brief of the Union: “The plaintiffs contest the validity of Section 9(f) not because it withdraws benefits and not because it creates competition, but because, on the facts of this case, it directly impairs their basic liberties. It is not the withdrawal of a privilege which constitutes the illegal sanction, but the burden imposed on these rights. Cf: Electric Bond & Share v. Securities and Exchange Comm., 303 U.S. 419, 442, 58 S.Ct. 678, 82 L.Ed. 936, 115 A. L.R. 105; Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 82 L.Ed. 917. But penalties which involve invasion of constitutionally protected activities are another matter. As Thornhill v. Alabama, supra, [310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093], makes clear, a condition imposed upon the enjoyment of rights protected by the Bill of Rights cannot be saved by an argument of reasonableness. It is the mere exertion of the power, not the extent of its exercise which is drawn in question. See also Schneider v. Irvington, 308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155. It is the plaintiffs’ view ihat they need not establish that the reporting was unreasonable, but that the results which flow are beyond the power of Congress to impose.” Arguing orally at the bar, plaintiff’s counsel said: “ I mean (f) and (h). We believe they are both unconstitutional because of the sanctions which are imposed. They are unconstitutional sanctions.” „ Also during the oral argument the following colloquy occurred between the plaintiff’s counsel and a member of the court: “Justice Prettyman: You are conceding, at least arguendo, that Congress might require you to make financial reports. “Mr. Standard: Certainly. We filed in Florida. If unconstitutional sanctions are not imposed, we recognize that states have certain rights to regulate, under the police power, and under other rights to regulate, but they cannot regulate under the pretext that they are regulating, and interfere with a federally protected right.” In support of this position plaintiff cites Western Union Telegraph Company v. Massachusetts, 125 U.S. 530, 8 S.Ct. 961, 31 L.Ed. 790, and Hill v. Florida, 325 U.S. 538, 543, 65 S.Ct. 1373, 1375, 89 L.Ed. 1782. It is our view that neither of these cases has application here. The first involved a tax which Massachusetts imposed on the Western Union’s property in that state. The taxing statute provided that, unless the tax were paid, the Western Union would not be permitted to function in Massachusetts. Holding the state had the right to impose the tax, the Supreme Court ruled that it could not, for its non-payment, deprive the company of the right to do business, for that right was federally protected. In Hill v. Florida a state statute had been so construed and applied that a union was prohibited from functioning as collective bargaining agent, or in any other capacity, except upon conditions fixed by the state which were not included in the National Labor Relations Act. Among these was a requirement that certain information be filed and that an annual fee of $1 be paid. The prevision that information be supplied and an annual fee be paid was held not to conflict with the federal Act but, for failure to comply, the union had been enjoined by a state court from functioning. The Supreme Court said: “ * * * It is the sanction here imposed, and not the duty to report, which brings about a situation inconsistent with the federally protected process of collective bargaining.” The case before us is readily distinguished from the Supreme Court opinions just discussed. The sanction there imposed by state statute was repugnant to a right created by a federal statute, and for that reason could not stand. It was not held, nor even intimated, that the sanction would have been in itself unconstitutional, had it not impinged upon a federal law. Here there is no imposition of a sanction beyond the power of the legislative body, as in the Massachusetts and Florida laws. Here in reality no sanction is imposed. Congress exercised its power under the commerce clause, and under the general welfare provision of the Preamble, to adopt legislation intended to promote the free flow of commerce by extending extraordinary rights to labor organizations, rights which do not exist except for the statute; it concluded that the public, and particularly the employees in a bargaining unit called on to ballot concerning the choice of a bargaining agent, have a substantial interest in knowing pertinent facts concerning the organization which seeks the statutory privilege of being the exclusive bargaining representative. This is exactly what the Supreme Court held to be proper in Lewis Publishing Company v. Morgan. Concerning the requirement that publishing companies desiring second class mail privilege first furnish information not greatly unlike that contemplated by § 9(f), the Court said: “* * * We believe that, since the general public bears a large portion of the expense of distribution of second-class matter, and since these publications wield a large influence because of their special concessions in the mails, it is not only equitable but highly desirable that the public should know the individuals who own or control them.” The argument of the plaintiff, which we have summarized above, concedes that Congress had the right to require the reports called for by § 9(f) but asserts that it had no right to withhold from a union which refused to file them, the privilege conferred by the same statute of being chosen as exclusive bargaining agent The “results that flow” from so doing will be virtual destruction of the union, plaintiff says. Those results flow, not from the operation of the statute, but from the plaintiff’s willful refusal to furnish information which they admit is constitutionally required. The Supreme Court in Milwaukee Publishing Company v. Burleson, 255 U.S. 407, 416, 41 S.Ct. 352, 355, 65 L.Ed. 704, had before it the same sort of argument made by a relator plaintiff whose second class mail privilege had been revoked by the Postmaster General because its paper had violated the provisions of the Espionage Act, 18 U.S.C.A. § 343 et seq. The Court said: “ * * * It was open to the relator to mend its ways, to publish a paper conforming to the law, and then to apply anew for the second-class mailing privilege. This it did not do, but for reasons not difficult to imagine, it preferred this futile litigation, undertaken upon the theory that a government competent to wage war against its foreign enemies was powerless against its insidious foes at home. Whatever injury the relator suffered was the result of its own choice * * So it is here. If the plaintiff Union suffers the loss of a chance to be chosen as exclusive bargaining agent because of its failure to file the reports exacted by § 9(f), the injury is the result of its own chioce in deciding not to file the statements which it admits are constitutionally required. The ruling of the Supreme Court in Lewis Publishing Company v. Morgan, supra, controls this case, as far as § 9(f) is concerned. There the Court had before it, as we have said, an act of Congress which required publishers to file a statement containing information quite similar to that exacted of labor unions by § 9(f) and denying second class mail entry for non-compliance. Like the distinction made by that statute between publishers who supplied the requisite information and those who did not, the distinction which § 9(f) makes between unions whose officers file the required affidavits and those whose officers decline to do so is “rested upon broad principles of public policy; in other words, upon the conceptions of Congress as to how far it was wise for the general welfare to give advantages to one class not enjoyed by another.” 229 U.S. at page 303, 33 S.Ct. at page 870. It is certain here, as the Supreme Court said it was in the Lewis Publishing Company case, that “for the purpose of securing the public benefits which it was conceived would result from the giving of the privilege, it was deemed that the power and duty existed to fix a standard which should be complied with by those who wished to enjoy the privilege, * * *.” 229 U.S. at pages 304, 305, 33 S.Ct. at page 871. The question here is, as it was in the Lewis Publishing Company case, whether the requirement that statements be filed is incidental to the power, which Congress was exercising, of granting an extraordinary privilege. If Congress has power to discriminate in favor of a union chosen by a majority of the employees in a bargaining unit, “the right to exercise that power carries with it the authority to do those things which are incidental to the power itself or which are plainly necessary to make effective the principal authority when exerted.” 229 U.S. at page 314, 33 S.Ct. at page 875. McCulloch v. Maryland, 1819, 4 Wheat. 316, 17 U.S. 316, 4 L.Ed. 579; Gibbons v. Ogden, 1824, 9 Wheat. 1, 22 U.S. 1, 6 L.Ed. 23. So, the ultimate and narrow question therefore is, as was said in the Lewis Publishing Company opinion, “* * * Are the requirements of the provision in question incidental to the purpose intended to be secured” in granting the privilege of exclusive representation for bargaining purposes? 229 U.S. at page 314, 33 S.Ct. at page 875. It is clearly incidental to the power of granting the unusual privilege of being exclusive bargaining agent, to prescribe qualifications which must be possessed by those who would achieve that statutory status. Just as in the Lewis Publishing Company case, we are not here concerned with a general regulation nakedly requiring the filing of information, but “solely and exclusively” with the right of unions to continue to enjoy great privileges and advantages, “a right given to them by Congress upon condition of compliance with regulations deemed by that body incidental and necessary to the complete fruition of the public policy lying at the foundation of the privileges accorded.” 229 U.S. at page 316, 33 S.Ct. at page 875. The decision of Mr. Chief Justice Hughes, writing for the Court in Electric Bond & Share Company v. Securities and Exchange Commission, 303 U.S. 419, 58 S.Ct. 678, 82 L.Ed. 936, 115 A.L.R. 105, is further precedent in this connection. The Chief Justice stated that case in this manner, 303 U.S. at pages 426, 427, 58 S.Ct. at page 679: . “The Securities and Exchange Commission brought this suit to enforce the provisions of sections 4(a) and 5 of the Public Utility Holding Company Act of 1935. 49 Stat. 803, 812,' 813, 15 U.S.C.A. §§ 79d (a), 79e. These sections provide for registration with the Commission of holding companies, as defined, section 5(a), 15 U.S.C.A. § 79e(a), and prohibit the use of the mails and the instrumentalities of interstate commerce to those companies which fail to register. Section 4(a), 15 U.S.C.A. § 79d(a). Section 5(b), 15 U.S. C.A. § 79e(b), provides for the filing of a registration statement giving information with respect to the organization, financial structure and nature of the business of the registrant, together with various details of operations. “Defendants, including intervenors, contested the validity of these provisions and sought by crossbill a declaratory judgment that the act was invalid in its entirety, 15 U.S.C.A. § 79 et seq., as being in excess of the powers granted to Congress by section 8 of Article I, and in violation of section 1 of Article I and of the Fifth and Tenth Amendments, of the Constitution of the United States. * * * ” In the course of the opinion, 303 U.S. at pages 437, 438, 58 S.Ct. at page 684, it is said: “ * * * Regulation requiring the submission of information is a familiar category. Information bearing upon activities which are within the range of congressional power may be sought not only by congressional investigation as an aid to appropriate 'legislation, but through the continuous supervision of an administrative body. * * * An illustration of the latter is found in the statute relating to newspapers and periodicals, enjoying the privileges accorded to second class mail, which requires an annual statement setting forth the names and addresses of the editor, publisher, business manager, owner, and, in case of ownership by a corporation, the stockholders, and also the names -of known bondholders or other security holders, together with a statement as to circulation. 39 U.S.C. § 233, 39 U.S.C.A. § 233. See Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190.” Later in the opinion, having observed that the electric companies had continuous and extensive operations in interstate commerce, the Court said, 303 U.S. at page 440, 58 S.Ct. at page 686: “* * * Congress cannot be denied the power to demand the information which would furnish a guide to the regulation necessary or appropriate in the national interest. Regulation is addressed to practices which appear to need supervision, correction or control. And to determine what regulation is essential or suitable, Congress is entitled to consider and to estimate whatever evils exist.” One of the questions involved in that case was whether Congress could prohibit the use of the mails and the instrumentalities of interstate commerce to holding companies which failed to file registration statements with the Commission. In that connection the Court said, 303 U.S. at page 442, 58 S.Ct. at page 686: “In the imposition of penalties for the violation of its rules, Congress has a wide discretion. Sanctions may be of various types. See Helvering v. Mitchell, ante, 303 U.S. at p. 391, 58 S.Ct. 630, 82 L.Ed. 917. They may involve the loss of a privilege which would otherwise be enjoyed. Id. Note 2. When Congress lays down a valid rule to govern those engaged in transactions in interstate commerce, Congress may deny to those who violate the rule the right to engage in such transactions. Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492; United States v. Delaware & Hudson Co., 213 U.S. 366, 415, 29 S.Ct. 527, 53 L.Ed. 836; Brooks v. United States, 267 U.S. 432, 436, 437, 45 S.Ct. 345, 346, 69 L.Ed. 699, 37 A.L.R. 1467; Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U.S. 334, 335, 346, 347, 57 S.Ct. 277, 279, 280, 81 L.Ed. 270. And while Congress may not exercise its control over the mails to enforce a requirement which lies outside its constitutional province, when Congress lays down a valid regulation pertinent to the use of the mails, it may withdraw the privilege of that use from those who disobey. Champion v. Ames, supra; Lewis Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L. Ed. 1190.” Plaintiff’s misconception of the nature of the Taft-Hartley Act lies at the root of much of its argument, and renders inapposite many of the authorities which it cites. That misconception is well illustrated by a sentence in its brief which reads, “This statute is not to be considered as one which confers a privilege upon conditions.” That was indeed true of the original National Labor Relations Act which, before amendment, conferred the privilege of exclusive representation, with attendant coercion upon the employer, without imposing any conditions upon the union. If the Taft-Hartley Act be considered alone, without any reference to the Wagner Act which it amends, it would be accurate to say, as plaintiff does, that it “is not to be considered as one which confers a privilege upon conditions.” The Taft-Hartley Act, however, does not stand alone. It is amendatory of the Wagner Act and, upon adoption, became a part of it, so that the two measures are read together as the National Labor Relations Act, as amended. The Wagner Act conferred the privilege unconditionally. The Taft-Hartley Act imposed conditions. The united statutes confer the privilege upon conditions. Plaintiff’s misapprehension of the statute’s nature to which we have just referred doubtless gave rise to further confusion which is appárent throughout its argument. In addition to thinking of the Wagner Act and the Taft-Hartley Act as two independent, unrelated enactments, the plaintiff errs fundamentally in assuming the privilege of exclusive bargaining agency to be a basic, constitutional right. Having made that erroneous assumption, it is an easy step which plaintiff takes to the conclusion that the Taft-Hartley Act impinges on a constitutional right by conditioning the privilege of exclusive representation. A few quotations from its brief will demonstrate the plaintiffs confusion in thinking of the Wagner Act’s privilege as a constitutional right. For example, it is said, “The defendants have, in effect, removed the plaintiff union from participation in the collective bargaining process and enjoined its members from any real efforts on its behalf or on their own.” The quoted statement could: have, with equal logic, been made of the defendant Board, before the passage of the TaftHartley Act, by any union which had lost an election and seen a rival union chosen as exclusive bargaining agent. The statement is specious in either situation. Obviously, the defendants have not removed the plaintiff Union from participation in the collective bargaining process. The Wagner Act, as amended, offers, upon prescribed conditions, the opportunity of participating in the exclusive bargaining process, and it is the plaintiff’s decision not to meet the conditions which removes its chance to enjoy the exclusive process of bargaining. Again, we find in the plaintiff’s brief the assertion that “The plaintiff union has been forcibly removed from the collective bargaining arena.” The same error inheres in the statement. It is the exclusive bargaining arena which the plaintiff would enter. Such an arena exists only by the grace of the statute, and admission to it can be had only upon statutory terms. In the same vein, the plaintiff says in its brief, “ * * * Thus the defendants have, by their enforcement of the Act, brought the plaintiffs close to the point where their fundamental liberty of organization is reduced to a struggle for survival under conditions which will be overcome, if at all, only by economic strife." (Emphasis added.) In this instance, also, it may well be suggested that any union, defeated by a rival in a representation election, could just as logically condemn the Board for enforcing the Wagner Act as it was before amendment. Whenever two unions seek to be chosen by employees and one is favored by a majority, the other union is thereby removed from that particular bargaining arena, and is brought close to the point where, according to this plaintiff, its “fundamental liberty of organization is reduced to a struggle for survival under conditions which will be overcome, if at all, only by economic strife(Emphasis supplied.) We are clearly of the opinion, from the reasoning of the authorities cited, that Congress was acting within its power when it imposed upon unions desiring to continue to enjoy the new and valuable benefits of the Wagner Act the duty of first filing the statements described in § 9(f). And § 9(g), which requires annual renewals of the organizational data exacted by § 9(f), is, of course, equally impervious to the plaintiff’s attack. The foregoing discussion of § 9(f) and the conclusion we have reached substantially narrow the area of argument with respect to § 9(h), to a consideration of which we now turn. That the Wagner Act confers a privilege is beyond doubt; that a privilege granted by Congress may be conditioned by it is almost axiomatic and is thoroughly established as an elementary principle. Since we have already decided that the statutory privilege may be withheld for failure to conform to conditions which are constitutionally valid, our only task with respect to § 9(h) is to consider whether the condition there imposed upon the grant of privilege is repugnant to the basic law. The condition imposed by § 9(h) is, of course, that the chance to be chosen as exclusive bargaining agent shall not be extended to a labor organization unless its officers have theretofore filed with the Board their affidavits that (a) they are not members of, or affiliated with, the Communist Party, and (b) they do not believe in the forcible overthrow of the United States Government. ’ As to the second statement, plaintiff does not assert invalidity, so we are concerned only with the non-Communist angle of the affidavit. It is forbidden by a federal statute “to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government” or to be a member of or affiliated with any society or group which teaches, advocates, or encourages such action. Despite this provision, we assume for the purposes of this case that it is not at present unlawful in America to belong to the Communist Party or to believe in its doctrine. The problem, therefore, is whether, in offering to grant a legislative favor, the Congress may declare ineligible to receive it those who engage in an activity or an affiliation not per se illegal. Authorities already cited show that Congress may do so if the test of eligibility is not purely whimsical; that is, if it bears a reasonable relation to the legislative objective, — -if there is a substantial basis in fact for imposing the test. Before the enactment of the Taft-Hartley Act, of which § 9(h) is a part, extensive hearings were conducted by congressional committees at which alarming evidence was presented that Communists in positions of authority in trade unions tend to foment industrial unrest and strife, not to attain legitimate economic aims, but to serve political purposes; that they thus impede the flow of commerce in the very teeth of the Act’s purpose to promote it. Quotations from the abundant evidence presented to the committees would prolong this opinion unduly. Suffice it to say it afforded ample basis for the formation of a legislative policy to curb Communist influence in labor relations. “Moreover,” as was said by the United States Court of Appeals for the District of Columbia on March 18, 1948, in Barsky v. United States, 167 F.2d 241, “that the governmental ideology described as Communism and held by the Communist Party is antithetical to the principles which underlie the form of government incorporated in the federal Constitution and guaranteed by it to the States, is explicit in the basic documents of the two systems; and the view that the former is a potential menace to the latter is held by sufficiently respectable authorities, both judicial and lay, to justify Congressional inquiry into the subject. In fact, the recitations in the opinion of the Supreme Court in Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, are sufficient to justify inquiry. To remain uninformed upon a subject thus represented would be a failure in Congressional responsibility.” In a footnote the court referred to abundant authority consisting of judicial decisions and source material. If the view, so widely held, that Communism is, in general, a menace to our form of government, justifies congressional inquiry, then it must follow that when there were added to that general threat numerous specific instances in which Communists have used labor unions to do harm to the national economy, Congress was justified in refusing to give them a statutory advantage with which more effectively to injure the public interest. In the clearly established circumstances, it is difficult to follow plaintiff’s argument that § 9(h) imposes “penalties on trade unions * * * for the conduct and opinions of their officers * * * in altogether unrelated fields.” (Emphasis added.) Unfortunately, it is demonstrated truth that union officers of that belief too often bring the purposes of Communism into the “unrelated field” of labor relations. Our conclusion is that Congress advisedly and justifiably provided that labor organizations whose officers decline to deny membership in or affiliation with the Communist Party shall not be eligible to assume the important statutory role of exclusive bargaining agent. That provision of the law is not, however, the real target of the plaintiff’s assault on the ground of unconstitutionality, as will presently appear. The gist of § 9(h) is contained in a single sentence, but upon examination that sentence is seen to make, in reality, two important provisions: (a) that Communistofficered unions may not enjoy the statutory privilege, and (b) that the Board shall ascertain from the officers of a union seeking the privilege whether they belong to or are affiliated with the Communist Party. Manifestly, the two provisions are neither identical nor similar. The former is a direct restriction upon the grant of a benefit, defining a class to which it will not be offered; the latter is a command that administrative inquiry be made in order to determine whether an applicant is eligible to receive the benefit. For reasons heretofore given, we have concluded that Congress validly excluded from the enjoyment of the statutory advantage any union having a Communist as an officer. Plaintiff’s real attack is made upon the second provision of § 9(h) which commands the Board to require the affidavit as proof of eligibility under the first provision of the section. That is, of course, a command to the Board to make an inquiry, to ask the question, “Are you a Communist?” In putting the query, the Board does nothing more than seek factual information to use as a guide in making the condition effective; for the Act does not require the question to be answered, does not punish the witness for declining to answer, and does not penalize him if he answers by saying he is a Communist. If the union official refuses to answer, or answering says he belongs to or is affiliated with the Communist Party, the only consequence is that the statute’s benefit is withheld from his union, — a consequence validly visited, as we have seen. With the affidavit requirement thus established as nothing more than an administrative inquiry which Congress directed to be made, we find the following statement from Barsky v. United States, supra, to be directly applicable: “If Congress has power to inquire into the subjects of Communism and the Communist Party, it has power to identify the individuals who believe in Communism and those who belong to the party. * * * The problem relates to the power of inquiry into a matter which is not a violation of law.” Section 9(h), in requiring the affidavit, seeks nothing except to identify the individuals who believe in Communism and those who belong to the Party. The problem before us is thus reduced to the question whether the Board’s permissible effort, in the course of its regulation of labor unions, to identify the individuals who are Communists violates the First, Fifth and Ninth Amendments when it takes the form of asking them to identify themselves. Plaintiff says § 9(h) abridges the freedom of its officer not to say he is a Communist. Freedom of speech is said to include freedom of silence. If this provision of the Act were a simple legislative requirement, standing entirely alone and unrelated to a legitmate legislative purpose, that union officers deny under oath membership in or affiliation with the Communist Party, the point might be well taken. But this Act does not require any union officer to say whether he is a Communist. He may be one and remain silent about it, as is his constitutional right; and the Act under consideration will not disturb him. It is therefore clearly wrong to say that § 9(h) impinges on a union officer’s freedom of speech. But if a union officer exercises the constitutional right of refraining from saying whether he is a Communist, his union is forbidden the opportunity to enjoy the statutory benefit as long as he remains an officer. Unhampered is his freedom of speech and silence; he may freely choose to speak or not to speak. The “result that flows” from his silence, if he chooses that course, is the denial of a statutory privilege to his union. Neither the officer nor his union has a constitutional right to the advantage offered by the Act; consequently, if a union officer stands upon his freedom of speech and declines to execute the affidavit, it is his decision to remain silent which excludes his union. His voluntary act deprives his organization, not of a constitutional right, but of a statutorily created and extraordinary privilege. Thus again it seems indisputable that the non-Communist oath provision does no violence to a union officer’s freedom of speech. Plaintiff further asserts that it and its members are deprived of liberty without due process of law, which is forbidden by the Fifth Amendment. Its theory is that liberty of association is diminished, if not destroyed, without due process, and also that the right peaceably to assemble or associate is denied, contrary also to the First Amendment. What has been said earlier in this opinion sufficiently shows, we think, that freedom of assembly is not infringed and that there is no deprivation of liberty of association without due process of law, or at all. Plaintiff characterizes § 9(h) as a bill of attainder, a legislative act which inflicts punishment without a judicial trial. It is not punishment to withhold the grant of a privilege from one who cannot or will not meet the valid conditions upon which it is offered. Cf. Mr. Justice Frankfurter’s concurring opinion in United State v. Lovett, 328 U.S. 303, 324, 66 S.Ct. 1073, 90 L.Ed. 1252. It is insisted, however, that in practical working out, the affidavit is compulsorily required; that the freedom of a union officer to make or not to make it, according to his own choice, is illusory because the price of refusal is to see his union lose a valuable benefit, the loss of which causes virtual destruction of the organization. Without conceding the validity of the suggestion that through resultant economic pressure freedom of speech is impinged upon, but treating it as valid only for the purpose of the discussion, we proceed to consider whether free speech is thereby unconstitutionally restricted. For the guaranties of the First Amendment which protect most precious rights are in turn jealously guarded by the courts, and complaint that such rights have been impaired should never go unexamined. Even if it be regarded that requiring the affidavit is an affirmative restriction upon freedom of speech, and not just a quest for information as in the Barsky case, i.e., if it be said that by exacting the affidavit Congress was acting instead of inquiring, it is still our view that the Barsky opinion has authority here. There the court was balancing the public interest against the private right, and found the former to outweigh the latter. Its express ruling was stated in this language: “We hold that in view of the representations to the Congress as to the nature, purposes and program of Communism and the Communist Party, and in view of the legislation proposed, pending and possible in respect to or premised upon that subject, and in view of the involvement of that subject in the foreign policy of the Government, Congress has power to make an inquiry of an individual which may elicit the answer that the witness is a believer in Communism or a member of the Communist Party.” The possibility that such an answer might be elicited was the reason Barsky said the inquiry violated his freedom of speech. It is the identical reason which is assigned by the plaintiff Union as a basis for asserting that § 9(h) abridges its officers’ freedom of speech. Pursuant to indubitable powers, Congress made it possible for a labor organization to enjoy the special privilege of exclusive representation, but conditioned the privilege in such a way that an inquiry must be administratively made of an individual which may elicit the answer that he is a member of the Communist Party or affiliated with it. We hold, just as the United States Court of Appeals did in the Barsky case, that Congress has the power to require such an administrative inquiry, in view of the representations made to it as to the nature, purposes and program of Communism and the Communist Party, and in view of the recent history which it had before it of industrial unrest and strife provoked by Commu'nists for their own political purposes. The Court of Appeals took pains to limit its ruling to the power of Congress to inquire, as distinguished from its power to act. It said, “There is a vast difference between the necessities for inquiry and the necessities for action. The latter may be only when danger is clear and present, but the former is when danger is reasonably represented as potential.” Properly understood, this means that the difference in the justification for inquiry and the justification for action lies in the proximity of danger, real or apparent. Although we have concluded that freedom of speech is not abridged by § 9(h), for the purpose of further analyzing the problem here we shall now consider the statute as one affirmatively requiring a union officer to break his silence as to whether he is a Communist, thereby impinging upon his individual right to freedom of speech. Is the statute therefore unconstitutional ? It is fully established by reiterated holdings of the Supreme Court that the right of free speech is not absolute but must yield to national interests justifiably thought to be of larger importance. The same is true of the right to remain silent. When legislating to avert what it believes to be a threat of substantive evil to national welfare, Congress may abridge either freedom. The right to be silent may be interfered with in either of two ways: as an incident to the accomplishment of a legislative purpose, Congress may require an individual to make a statement specifically prescribed by it; or it may require generally that an individual make any statement essential to avert the anticipated evil, without defining the statement. When, as here, the specific statement that he is not a Communist is required of an individual, the relation of the statement to the evil sought to be avoided, and the necessity that it be made, has been determined by the deliberations of Congress. On the other hand, if the statute provides that inquiry may be made, but does not describe the inquiry in express terms, an individual cannot be forced, in violation of his freedom of silence, to make a specific statement unless it appears that, without it, there is clear and present danger of the apprehended evil. It is only in the latter instance that the clear and present danger doctrine applies. This distinction is clearly shown in Gitlow v. New York, 268 U.S. 652, 670, 671, 45 S.Ct. 625, 69 L.Ed. 1138. Clarification of the differentiation to which we have just referred is found in Bridges v. California, 314 U.S. 252, 260, 62 S.Ct. 190, 192, 86 L.Ed. 192, 159 A.L.R. 1346. Paraphrasing the language of the Supreme Court shown in note 12, it can logically be said that here Congress has “appraised a particular kind of situation and found a specific danger sufficiently imminent to justify a restriction on a particular kind of utterance.” That is to say, Congress here appraised the situation which exists when an exclusive bargaining union has an officer who is a Communist, and found in that situation the specific danger that such a union would subvert the bargaining process and incite industrial strife, and further found that specific danger to be “sufficiently imminent to justify a restriction” on the right of an officer of a union desiring the bargaining privilege not to reveal whether he is a Communist. That Congress did in fact make such an appraisal of the situation wherein a Communist is able to influence the bargaining process may be inferred from the mere fact that the statute was enacted; and it is conclusively shown by the comments of members in House and Senate on the evidence to that effect heard by its committees. The statute therefore comes to us “encased in the armor wrought by prior legislative deliberation.” That being true, it is not necessary for us, in order to sustain the statute, to find as an original proposition that the presence of a Communist in the exclusive bargaining process would create “such likelihood of bringing about the substantive evil” of industrial strife “as to deprive” the Communist “of the constitutional protection” to remain silent concerning his status as such. In this connection, it should be noted that the plaintiff Union baldly challenges the statute as unconstitutional when applied to it; neither in the complaint nor in the argument is it asserted that there was no basis for the legislative discernment of resultant substantive evil should Communists be permitted to dominate or influence the exclusive bargaining procedure. The complaint challenges the validity of the statute on its face, just as the demurrer did in the Carolene Products Company case quoted from in the footnote below. We may say here, as was said in that case, “it is evident from all the considerations presented to Congress, and those of which we may take judicial notice, that the question is at least debatable” whether Communists should be prohibited from being officers of exclusive bargaining unions. “As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it.” Section 9(h) was adopted becaus.e Congress had concluded that the influence of Communists in the exclusive bargaining process is hurtful to the national interests. The debarment of them from that field is predicated on that conclusion. If it is a sound conclusion, then the incidental impairment of the Communist’s right of silence is not unconstitutional. In order to challenge the constitutionality of § 9(h), a statute predicated on the existence of a particular state of facts, the challenger must show that that state of facts does not exist. Chastleton Corporation v. Sinclair, 264 U. S. 543, 44 S.Ct. 405, 68 L.Ed. 841; United States v. Carolene Products Company, supra, 304 U.S. at page 153, 58 S.Ct. 778. We have shown that in this case there is no such challenge but that, on the contrary, the statute is assailed as being unconstitutional on its face. But the abundant evidence upon which Congress acted, and the facts of current history which we judicially notice, sufficiently warranted the decision Congress made in that situation. We cannot sustain the claim that the Act is in itself unconstitutional. And it is not asserted that there was no danger of substantive evil from the source from which Congress foresaw it. Had that assertion been made, it would have been ineffective because, as will appear later in this opinion, there was proof of such danger. From the foregoing it may be seen our opinion is that this is a case in which the clear and present danger doctrine does not apply, because of the distinction between two different sorts of speech-infringing statutes pointed out in Gitlow v. New York, supra. But, in order that the situation may be fully explored, we proceed now to consider this case as though it were one of the class to which the clear and present danger doctrine does apply, and to see if the Act in question meets the test of that rule. Abridgment of free speech by a statute of that class is permissible only if the factual situation in which Congress acted showed the “clear and present danger” which the Supreme Court has often said is the only warrant for restricting basic individual rights. For example, Mr. Justice Rutledge said in Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430, “ * * * any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger.” So our question is: was Congress justified in envisaging clear and present danger to the national interest if the exclusive bargaining privilege were extended to unions whose officers are members of the Communist Party or affiliated with it? The opinion of the Supreme Court in Thomas v. Collins, supra, contains an illuminating discussion of the “clear and present danger” rule and the manner of its application. Courts must say where the individual’s freedom ends and the power of government begins. The First Amendment gives to the freedoms which it secures a sanctity which does not permit of dubious intrusion. Mr. Justice Rutledge wrote in that opinion, 323 U.S. at page 531, 65 S.Ct. at page 323: “ * * * Where the line shall be placed in a particular application rests, not on * * * generalities, but on the concrete clash of particular interests and the community’s relative evaluation both of them and of how the one will be affected by the specific restriction, the other by its absence. That judgment in the first instance is for the legislative body.” He went on to say that where the line can constitutionally be placed presents a question which the Supremfe Court cannot escape answering independently, whatever the legislative judgment. And under our constitutional tradition, the answer “can be affirmative, to support an intrusion upon this domain, only if grave and impending public danger requires this.” When clear and present danger exists, or when “danger is reasonably represented as potential” so that inquiry is justified as in the Barsky case, must somehow be determined; and it will not be often, if ever, that the presence of potential danger, or clear and present danger, can be conclusively demonstrated until the portended harm has been done. Usually the existence of either is a matter of opinion, and it is for the legislative body to form that opinion in the first instance. Congress must decide whether clear and present danger to a national interest exists, and, if so, must determine upon a way to avert it. If the method chosen intrudes upon an individual right guaranteed by the First Amendment, Congress must evaluate the clashing public and private interests, must note how the one will be affected by the restriction, the other by its absence, and must then decide whether to impose the restriction. We take it that the congressional judgment is final unless there was in fact no clear and present danger, which alone justifies impinging upon sacred individual rights. In this case Congress must have seen what it considered clear and present danger to the body politic in permitting Communists to be dominant in exclusive bargaining agencies; for Congress is, of course, aware of the long established clear and present danger rule and knew that it could abridge the freedom of speech, even if merely to a slight degree, only for the larger purpose of averting such danger. What information did Congress have that there was clear and present danger that required the action taken? It had before it evidence of instances in which strikes have been called, for political reasons only, through the influence of Communists in unions. That this is true is a matter of general knowledge. “Many a U. S. strike has been fomented by Communists,” said Time Magazine in its issue of March 22, 1948, p. 22, col. 3. It knew that one of the purposes of the Communist Party is to destroy democratic institutions and that infiltration into labor unions is one of the first steps in the process. In addition to proof of overt acts, it had before it opinions as to the nature and purposes of the Communist Party from persons in position to have knowledge of the subject. Typical of these is the statement by William Green, president of the American Federation of Labor, that “A Communist is sworn to overthrow our Go