HAYS, Circuit Judge:
. ,, „ Appellants are the addressees of mail ?ackages containing publications orig- ? ma3^á TCThiaa' jfben Atbese Plages reach the United States tbey are detalned by the Commissioner of Customs pursuant to the Foreign Assets Control Regulations, 31 C.F.R. § 500.808 (1968).1 The Commissioner sends letters of notice to the addressees advising them of the detention and stating that the material will be released only if Foreign Assets Control issues a license.
Appellants did not apply for licenses for the packages addressed to them,2 but brought this action, asserting that the Foreign Assets Control Regulations and the Trading with the Enemy Act § 5(b), 50 U.S.C.App. § 5(b) (1964), abridge their first amendment rights, that the statute unconstitutionally delegates legislative power to the President, that the President has unlawfully delegated powers to the Director of Foreign Assets [443]*443Control, and that the statute and regulations deprive appellants of property without due process of law. They seek a declaratory judgment that the statute and regulations are unconstitutional, that no licenses need be obtained or applied for in transactions involving the importation of North Vietnamese or Chinese publications, and that payment for those publications may be made directly to the publishers rather than into blocked accounts. Appellants also ask for an injunction preventing the Commissioner from continuing to detain the publications already in his possession.
Plaintiffs moved for summary judgment or, alternatively, for a preliminary injunction and the convening of a statutory three-judge court. Defendants challenged the court’s jurisdiction, and themselves sought summary judgment dismissing the complaint.
The district court held that it had jurisdiction under Section 1337 of the Judicial Code, 28 U.S.C. § 1337 (1964), but granted summary judgment dismissing the complaint.
Appellant Teague thereupon applied for a license. Five weeks later he received a letter from the Federal Reserve Bank of New York requiring that he amplify his application by answering a series of questions. He has not done so. Instead, relying on the delay involved in processing Teague’s application, plaintiffs moved pursuant to Fed.R.Civ.P. 60 (b) to vacate the order of dismissal, arguing that the regulations involved a far more burdensome procedure than had previously been assumed to exist. The court denied the motion, finding that the length of the delay involved was attributable to the pending litigation, and that while some delay could always be expected it would be closer to 10 days than to 5 weeks.3
Plaintiffs have appealed from both judgments. We affirm.
I.
Section 5(b) of the Trading with the Enemy Act, 50 U.S.C.App. § 5(b) (1964) authorizes the promulgation, during the time of war or other national emergency, of regulations controlling the flow of American currency to foreign nations.4
In December 1950 President Truman proclaimed the existence of a national emergency. 64 Stat. A454 (1950). That proclamation has never been revoked. Although the proclamation took particular note of “recent events in Korea and elsewhere,” it also made general reference to “the increasing menace of the forces of communist aggression.”
As this court said in Sardino v. Federal Reserve Bank, 361 F.2d 106, 109-110 [444]*444(2d Cir.), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966):
“The declaration has never been revoked; rather it has been repeatedly and recently reaffirmed. * * * While the courts will not review a determination so peculiarly within the province of the chief executive, there can hardly be doubt as to the existence of an emergency today when thousands of United States troops are in action and many more are in readiness around the globe. Plaintiff’s contention that the national emergency provision, which came into the statute at the time of the economic crisis of 1933, 48 Stat. 1, is limited to economic emergencies, is sufficiently answered by the breadth of the language. The understanding that the words mean all they say was illustrated by President Roosevelt’s freezing the assets of nationals of Norway and Denmark on the invasion of those countries by Germany long before the United States was at war * * *. We take the prompt Congressional ratification * * * as a demonstration of approval of what was already lawful rather than as an indication of doubt.”
Acting under, the authority of the Trading with the Enemy Act and the declared state of national emergency, the Secretary of the Treasury, to whom the President delegated his rule-making power under the Act, promulgated the Foreign Assets Control Regulations, 31 C.F.R. Part 500 (1968). The relevant portions of those regulations are set forth in the margin.5
[445]*445II.
Plaintiffs challenge the constitutionality of the Trading with the Enemy Act, contending that the Congress has delegated legislative power to the President without fixing standards. And they assert that the powers delegated to the President (if constitutionally delegated to him) are personal to his office and may not constitutionally be delegated to the Secretary of the Treasury or the Director of Foreign Assets Control. These precise contentions were raised and dismissed in Sardino v. Federal Reserve Bank, supra. Far from overruling Sardino, as plaintiffs urge us to do, we reaffirm it as a sound and well-reasoned decision.
Plaintiffs contend that even if Sardino is reaffirmed a different set of standards should apply to the present case because the challenges on the basis of overbroad delegations of power involve first amendment claims. Our conclusion that plaintiffs’ first amendment rights have not been violated makes it unnecessary to decide that issue.
Sardino also provides a sufficient answer to plaintiffs’ contention that the statute and the regulations deprive them of property without due process of law.
III.
Plaintiffs’ major contention is that the statute and regulations violate the first amendment. They argue both that it is unconstitutional to subject the exercise of first amendment rights — the receipt of publications — to “burdensome and time-consuming administrative procedures,” and that the regulations require the keeping of records that impair the applicants’ right to anonymity.
The challenged regulations were designed to limit the flow of currency to specified hostile nations: mainland China, North Korea, and North Vietnam. We are presently in a state of armed conflict with North Vietnam; and while we are not at war with either China or North Korea our relations with those nations are hardly peaceful. As we noted in Sardino,
Free access — add to your briefcase to read the full text and ask questions with AI
HAYS, Circuit Judge:
. ,, „ Appellants are the addressees of mail ?ackages containing publications orig- ? ma3^á TCThiaa' jfben Atbese Plages reach the United States tbey are detalned by the Commissioner of Customs pursuant to the Foreign Assets Control Regulations, 31 C.F.R. § 500.808 (1968).1 The Commissioner sends letters of notice to the addressees advising them of the detention and stating that the material will be released only if Foreign Assets Control issues a license.
Appellants did not apply for licenses for the packages addressed to them,2 but brought this action, asserting that the Foreign Assets Control Regulations and the Trading with the Enemy Act § 5(b), 50 U.S.C.App. § 5(b) (1964), abridge their first amendment rights, that the statute unconstitutionally delegates legislative power to the President, that the President has unlawfully delegated powers to the Director of Foreign Assets [443]*443Control, and that the statute and regulations deprive appellants of property without due process of law. They seek a declaratory judgment that the statute and regulations are unconstitutional, that no licenses need be obtained or applied for in transactions involving the importation of North Vietnamese or Chinese publications, and that payment for those publications may be made directly to the publishers rather than into blocked accounts. Appellants also ask for an injunction preventing the Commissioner from continuing to detain the publications already in his possession.
Plaintiffs moved for summary judgment or, alternatively, for a preliminary injunction and the convening of a statutory three-judge court. Defendants challenged the court’s jurisdiction, and themselves sought summary judgment dismissing the complaint.
The district court held that it had jurisdiction under Section 1337 of the Judicial Code, 28 U.S.C. § 1337 (1964), but granted summary judgment dismissing the complaint.
Appellant Teague thereupon applied for a license. Five weeks later he received a letter from the Federal Reserve Bank of New York requiring that he amplify his application by answering a series of questions. He has not done so. Instead, relying on the delay involved in processing Teague’s application, plaintiffs moved pursuant to Fed.R.Civ.P. 60 (b) to vacate the order of dismissal, arguing that the regulations involved a far more burdensome procedure than had previously been assumed to exist. The court denied the motion, finding that the length of the delay involved was attributable to the pending litigation, and that while some delay could always be expected it would be closer to 10 days than to 5 weeks.3
Plaintiffs have appealed from both judgments. We affirm.
I.
Section 5(b) of the Trading with the Enemy Act, 50 U.S.C.App. § 5(b) (1964) authorizes the promulgation, during the time of war or other national emergency, of regulations controlling the flow of American currency to foreign nations.4
In December 1950 President Truman proclaimed the existence of a national emergency. 64 Stat. A454 (1950). That proclamation has never been revoked. Although the proclamation took particular note of “recent events in Korea and elsewhere,” it also made general reference to “the increasing menace of the forces of communist aggression.”
As this court said in Sardino v. Federal Reserve Bank, 361 F.2d 106, 109-110 [444]*444(2d Cir.), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966):
“The declaration has never been revoked; rather it has been repeatedly and recently reaffirmed. * * * While the courts will not review a determination so peculiarly within the province of the chief executive, there can hardly be doubt as to the existence of an emergency today when thousands of United States troops are in action and many more are in readiness around the globe. Plaintiff’s contention that the national emergency provision, which came into the statute at the time of the economic crisis of 1933, 48 Stat. 1, is limited to economic emergencies, is sufficiently answered by the breadth of the language. The understanding that the words mean all they say was illustrated by President Roosevelt’s freezing the assets of nationals of Norway and Denmark on the invasion of those countries by Germany long before the United States was at war * * *. We take the prompt Congressional ratification * * * as a demonstration of approval of what was already lawful rather than as an indication of doubt.”
Acting under, the authority of the Trading with the Enemy Act and the declared state of national emergency, the Secretary of the Treasury, to whom the President delegated his rule-making power under the Act, promulgated the Foreign Assets Control Regulations, 31 C.F.R. Part 500 (1968). The relevant portions of those regulations are set forth in the margin.5
[445]*445II.
Plaintiffs challenge the constitutionality of the Trading with the Enemy Act, contending that the Congress has delegated legislative power to the President without fixing standards. And they assert that the powers delegated to the President (if constitutionally delegated to him) are personal to his office and may not constitutionally be delegated to the Secretary of the Treasury or the Director of Foreign Assets Control. These precise contentions were raised and dismissed in Sardino v. Federal Reserve Bank, supra. Far from overruling Sardino, as plaintiffs urge us to do, we reaffirm it as a sound and well-reasoned decision.
Plaintiffs contend that even if Sardino is reaffirmed a different set of standards should apply to the present case because the challenges on the basis of overbroad delegations of power involve first amendment claims. Our conclusion that plaintiffs’ first amendment rights have not been violated makes it unnecessary to decide that issue.
Sardino also provides a sufficient answer to plaintiffs’ contention that the statute and the regulations deprive them of property without due process of law.
III.
Plaintiffs’ major contention is that the statute and regulations violate the first amendment. They argue both that it is unconstitutional to subject the exercise of first amendment rights — the receipt of publications — to “burdensome and time-consuming administrative procedures,” and that the regulations require the keeping of records that impair the applicants’ right to anonymity.
The challenged regulations were designed to limit the flow of currency to specified hostile nations: mainland China, North Korea, and North Vietnam. We are presently in a state of armed conflict with North Vietnam; and while we are not at war with either China or North Korea our relations with those nations are hardly peaceful. As we noted in Sardino, “Hard currency is a weapon in the struggle between the free and the communist worlds.” 361 F.2d at 112. The regulations contribute to the furtherance of a vital interest of the government.
It is true that the regulations result in some limitation on the availability of publications and films originating in China, North Korea, and North Vietnam. To the extent of this limitation the regulations impinge on first amendment freedoms. However, restricting the flow of information or ideas is not the purpose of the regulations. The restriction of first amendment freedoms is only incidental to the proper general purpose of the regulations: restricting the dollar flow to hostile nations. Moreover there is no censorship of selected materials; all publications from the specified nations are treated alike. 31 C.F.R. § 500.204 App. ¶ 108 (1968).
The challenged regulations themselves provide for the availability of the foreign publications. They can be, and are, ad[446]*446mitted if the payments for them are made into blocked accounts or if the publications are sent as gifts. Id. And the publications are available at “universities, libraries, [and] research and scientific institutions,” 31 C.F.R. § 500.204 App. ¶ 108 (1968), which are allowed to import them without restriction as to payments.6
The Supreme Court has recently said:
“This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers an important or substantial governmental interest ; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) (footnotes omitted).
Applying the Supreme Court’s test here we conclude that the infringement of first amendment freedoms is permissible as incidental to the proper, important, and substantial general purpose' of the regulations.
Plaintiffs point to the lengthy delays involved in processing the license applications of Teague and Polín and argue that Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), requires the invalidation on constitutional grounds of such a time-consuming procedure. The government indicated, however, that the delays in processing the Teague and Polin applications were attributable to this lawsuit, because the Treasury Department was forced to coordinate its activities with the Justice Department. The district court found thht a license application can typically be processed within 10 days. In any event, we do not consider Freedman v. Maryland controlling in a situation such as this. Freedman was concerned with the length of time required to adjudicate whether a film was obscene in light of the presumption of unconstitutionality borne by any system of prior restraints of expression, see 380 U.S. at 57, 85 S.Ct. 734, and cases cited. Here, by contrast, there is no inquiry into the content of detained material. The only delay is that required to determine that money is not being sent to one of the designated nations; there is no design to limit the free flow of ideas.
Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965), is not apposite. As Mr. Justice Brennan noted in his concurring opinion in Lamont, id. at 309, 85 S.Ct. 1493, the solicitor general expressly conceded that no compelling governmental interest required enactment of the statute there called in question. The only purpose of the statute was to protect the sensibilities of recipients of Communist political propaganda who might be offended by getting publications espousing unpopular ideas. Here the government’s purpose is obviously enormously more important and substantial.
Finally, plaintiffs contend that the licensing procedure violates their fifth amendment right against selfincrimination. They rely on Haynes v. [447]*447United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). We find those eases, and Albertson v. Subversive Activities Control Bd., 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), to be inapplicable. By answering the questions posed on the required forms in those cases petitioners could have found themselves subjected to criminal prosecution. The information to be supplied by these plaintiffs on the forms required here would have no tendency to incriminate them.
The judgments of the district court are affirmed.