Application for stay, pending the filing and disposition of a
petition for certiorari, of Court of Appeals' judgment affirming an
injunction against further operation of applicants' hand delivery
mail service in violation of the Private Express Statutes is
denied, where it appears unlikely that four Justices of this Court
would vote to grant certiorari.
MR. JUSTICE MARSHALL, Circuit Justice.
Patricia H. Brennan and J. Paul Brennan have applied to me for a
stay of the judgment of the Court of Appeals for the Second Circuit
pending the filing and disposition by this Court of their petition
for a writ of certiorari. Applicants operate a hand delivery mail
service in Rochester, N.Y. The United States Postal Service (USPS)
brought suit in the Western District of New York to enjoin
operation of this service on the ground that the Private Express
Statutes, 39 U.S.C. §§ 601-606 and 18 U.S.C. §§ 1693 1699,
proscribe private carriage and delivery of "letters and packets."
Applicants concede that the Private Express Statutes do indeed
prohibit their activities, but they challenge the prohibition
principally on the basis that the Constitution does not confer upon
Congress exclusive power to operate a postal system. [
Footnote 1] The District Court rejected the
challenge and permanently enjoined further violations. The Court of
Appeals affirmed, denied motions for rehearing and rehearing en
banc, and refused to
Page 439 U. S. 1346
stay its judgment pending disposition of a petition for a writ
of certiorari. Applicants invoke the jurisdiction of this Court
under 28 U.S.C. § 2101(f).
The argument applicants press here is that Congress exceeded its
powers by granting the USPS a monopoly over the conveyance of
letter mail. Article I, § 8, cl. 7, of the Constitution provides
that "Congress shall have Power . . . To establish Post Offices and
post Roads." Nothing in this language or in any other provision of
the Constitution, applicants submit, implies that the postal power
is invested exclusively in the Legislative Branch. Although
Congress has authority under Art. I, § 8, cl. 18, to make such laws
as are "necessary and proper" for carrying out its delegated
functions, applicants argue that this provision does not permit it
to convert a nonexclusive power into an exclusive one.
The well established criteria for granting a stay are
"that the applicants must show 'a balance of hardships in their
favor' and that the issue is so substantial that four Justices of
this Court would likely vote to grant a writ of certiorari."
New York Times Co. v. Jascalevich, ante at
439 U. S.
1337. I cannot conceive that four Justices would agree
to review the Court of Appeals' ruling on the argument advanced
here. That argument rests on the tenuous premise that the Framers
intended to create categories of exclusive and nonexclusive powers
so inviolable that a subsequent Congress could not determine that a
Government monopoly over letter mail was "necessary and proper" to
prevent private carriers from securing all of the profitable postal
routes and relegating to the USPS the unprofitable ones. Applicants
have presented no convincing evidence of such an intent, and such a
miserly construction of congressional power transgresses principles
of constitutional adjudication settled since
McCulloch
v. Maryland, 4 Wheat. 316 (181). As Mr. Chief
Justice Marshall stated there,
"the sound construction of the constitution must allow to the
national legislature that discretion, with respect to the means
Page 439 U. S. 1347
by which the powers it confers are to be carried into execution,
which will enable that body to perform the high duties assigned to
it, in the manner most beneficial to the people."
Id. at
17 U. S.
421.
Moreover, long historical practice counsels against reviewing
this novel constitutional claim. The Private Express Statutes have
existed in one form or another since passed by the First Congress
in 1792, [
Footnote 2] and their
constitutionality has never been successfully challenged. While
such longevity does not ensure that a statute is constitutional, it
is certainly probative here of whether four Justices would vote to
hear the merits of applicants' case.
Cf. Myers v. United
States, 272 U. S. 52,
272 U. S. 175
(1926). This Court's recent refusal to review the Tenth Circuit's
decision upholding the Private Express Statutes,
United States
v. Black, 569 F.2d 1111,
cert. denied, 435 U.S. 944
(1978), and the absence of any conflict among the Circuits on this
point also indicate that applicants have not satisfied the criteria
for the granting of a stay.
Accordingly, the application is denied.
[
Footnote 1]
They contend also that the legislation violates the Tenth
Amendment because it denies to the States and to the people a
concurrent power reserved to them, that Congress improperly
delegated to the USPS the power to define "letters and packets,"
and that the extension of the postal monopoly only to letter mail
arbitrarily discriminates against their business. Applicants intend
to pursue these challenges in their petition for certiorari, but do
not elaborate on them here.
[
Footnote 2]
Indeed, the 1792 Act continued in effect a statute of the
Continental Congress that had created a postal monopoly. Act of
Feb. 20, 1792, 1 Stat. 232, 236, adopting Act of Oct. 18, 1782, 23
J.Cont.Cong. 672-673.
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