*196CONCURRING OPINION
Brown, Judge:The plaintiff herein contends as follows:
(1) That the entire Flexible Tariff proceeding in this matter is illegal, null and void because the Senate resolution authorizing the investigation by the Tariff Commission is illegal.
As the action of the Tariff Commission in recommending to the President changes in statutory tariff classifications and rates may be had of its own motion without any Senate resolution asking for it, the fact that the Senate resolution asking for action was illegal would have no effect upon the legality of the action taken.
(2) The McKay sewed shoes at bar are not within the purview of section 336 of the Tariff Act of 1930 for changes in the statutory tariff duty because they are not expressly provided for, that is “expressly fixed by statute.”
It is true that the statutory provision which was changed, paragraph 1530 (e), is a blanket provision reading as follows:
Boots, shoes, or other footwear (including athletic or sporting boots and shoes), made wholly or in chief value of leather, not specially provided for, 20 per centum ad valorem.
And the newly written Presidential paragraph carved out of that blanket clause reads as follows:
An increase in the rate of duty expressly fixed in paragraph 1530 (e) of Title I of said act on boots and shoes, made wholly or in chief value of leather, not specially provided for, sewed or stitched by the process or method known as McKay, from 20 per centum ad valorem to 30 per centum ad valorem. [Italics mine.]
It is claimed that McKay shoes are not “expressly fixed by statute” and that this point has never been passed on by the courts. However, in United States v. Sears, Roebuck & Co., 20 C. C. P. A. 295, T. D. 46086, the court of appeals passed upon a very similar situation and incidentally, to arrive at their conclusion, must have construed the expression “expressly fixed by statute” (new language in the Tariff Act of 1930) as having a different effect than the effect claimed for it here, or rather, as having no effect at all. There the statutory provision, blanket paragraph 397, Tariff Act of 1930, read:
Par. 397. Articles or wares * * * composed wholly or in chief value of iron, steel, lead, copper, brass, nickel, pewter, zinc, aluminum, or other metal, but not plated with platinum, gold, or silver, or colored with gold lacquer, whether partly or wholly manufactured, 45 per centum ad valorem.
The Presidential paragraphs there written, carved out of the above blanket paragraph, read as follows:
An increase in the rate of duty expressly fixed in paragraph 397 of Title I of said act on woven-wire fencing and woven-wire netting, all the foregoing composed of wire smaller than eight one-hundredths and not smaller than three one-hundredths of an inch in diameter, coated with zinc, or other metal before weaving, from 45 per centum ad valorem to 50 per centum ad valorem;
*197And an increase in the rate of duty expressly fixed in paragraph 397 of Title I of said act on woven-wire fencing and woven-wire netting, all the foregoing composed of wire smaller than eight one-hundredths and not smaller than three one-hundredths of an inch in diameter, coated with zinc or other metal after weaving, from 45 per centum ad valorem to 60 per centum ad valorem.
The plaintiff claims that the meaning of the new language in section 336 “expressly fixed by statute” was not passed on in that case and asks us to decide here that those words exclude these McKay shoes from the operation of section 336 because they were not expressly named in the statutory tariff.
It is true that in the Sears, Roebuck case, supra, Judge Lenroot does not mention these words and in the appellee’s original brief they are not relied on. However, in the appellee’s brief asking for a reargument of the case they are specially mentioned and relied on. That motion for reargument was unfortunately overruled without opinion on February 27, 1933. The effect of this is that our court of appeals evidently did not think the addition of these new words “expressly fixed by statute” changed the effect of what they had decided the meaning of the flexible provision in the Tariff Act of 1922 to be; and that section 336 of the Tariff Act of 1930 permitted the increase of duty on one article in a blanket paragraph by means of the flexible process by writing a new executive paragraph referring to it alone.
Certiorari to the Supreme Court was applied for by Sears, Roebuck & Co., the appellee in that case before the Court of Customs Appeals. It was denied without opinion in spite of the fact that it involved an important new constitutional question and an important new question of power over the construction of these new words in section 336. Both questions involved far reaching results affecting every customs taxpayer in the United States.
Ordinarily that would mean nothing in regard to the merits of the case, as Mr. Justice Holmes said in United States v. Carver, 260 U. S. 482, at page 490:
* * * The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.
Mr. Justice Holmes repeated this exact language in Atlantic Coast Line v. Powe, 283 U. S. 401, bottom of page 403.
Mr. Chief Justice Taft also said in Magnum Import Company, Inc. v. Coty, 262 U. S. 159, at page 163:
* * * The jurisdiction to bring up cases by certiorari from the Circuit Courts of Appeals was given for two purposes, first to secure uniformity of decision between those courts in the nine circuits, and second, to bring up cases involving questions of importance which it is in the public interest to have decided by this court of last resort. [Emphasis mine.]
*198These expressions by the Supreme Court, however, can have no application to their denial of certiorari in the Sears, Roebuck case, supra, because of the overwhelming importance of the constitutional and power questions involved therein affecting every taxpayer in America. The irresistible inference must therefore be drawn that in denying certiorari in the Sears, Roebuck case the Supreme Court intended to dispose of the important questions it involved without the assistance of oral argument. That naturally constrains us to follow the court of appeals' holding in the Sears, Roebuck case where the opinion ignored the new language of the act of 1930, treating it as having no effect.
The third contention of the plaintiff is that the Tariff Commission’s investigation was not in conformity with the statute and therefore illegal, and that such an investigation was not passed upon by the President in accordance with the requirements of the law. The investigation is part of the internal legislative process, and, therefore, not subject to judicial review, however arbitrarily conducted. Likewise, the reporting to the President, however imperfectly or incompletely reported, and the President’s action in dealing with the report, are parts of the internal legislative process as to which a complete and final legislative discretion was committed by Congress to the Tariff Commission and the President, inherently and necessarily not subject to judicial review because it is the legislative process of levying a tax. The President might not even read the Tariff Commission’s report. He might ignore parts of it and consider only parts of it. Yet no court could interfere with such exercise of his discretion.
True, the Hampton case holds that it was not executive legislation and therefore constitutional. But the later case of Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, admits it to be executive legislation, in holding that the hearing provided for before the Tariff Commission was a mere “legislative” hearing and in no sense a “judicial” hearing, like that involved in a law suit. On page 305 Mr. Justice Cardozo says:
* * * What is done by the Tariff Commission and the President in changing the tariff rates to conform to new conditions is in substance a delegation, though a permissible one, of the legislative -process. [Emphasis mine.]
On page 315, 316 he says:
* * * In the same tariff act that makes provision in these general words for a hearing by the Commission as a step in the development of the process of legislation, there is another section prescribing the remedy available to an importer after the legislative process has been completed. [Emphasis mine.]
Then after setting out the judicial review given importers by the reappraisement section, in contrast to the absence of judicial review of the legislative flexible process, he says:
This is the way that Congress spoke when it wished to attach to an administrative proceeding the incidents of a trial in court.
*199Returning to the flexible legislative process, he says on page 318:
* * * No one has a legal right to the maintenance of an existing rate or duty. Neither the action of Congress in fixing a new tariff nor that of the President in exercising his delegated power is subject to impeachment if the prescribed forms of legislation have been regularly observed. [Emphasis mine.] It is very different, however, when orders are directed against public service corporations limiting their powers in the transaction of their business. They may be challenged in the courts if the effect is to reduce the charges to the point of confiscation. Smyth v. Ames, 169 U. S. 466. They may be challenged for other reasons when they are without evidence supporting them and are merely arbitrary edicts. [Emphasis mine.]
The plaintiff’s fourth contention is that the statement on page 8 of the Tariff Commission’s report that:
There is also a considerable importation but no domestic production of shoes with molded sides and woven leather uppers * * *
shows that there is no domestic production and without that there could be no comparison between foreign and domestic costs and that therefore the finding was void. That statement, however (assuming the report was admissible in evidence), is contained in a reference to other varieties of shoes in which there was no change in the rate. In that connection it should be stated that determination as to whether or not there is a domestic article for cost comparison is part of the internal process which is committed to the arbitrary and uncontrolled discretion of the President and Tariff Commission without judicial review.
The plaintiff’s fifth contention is that, although the investigation was supposed to cover boots and shoes generally, the report shows on its face that the Commission made no investigation of boots and shoes generally, but simply of certain arbitrarily selected classes of boots and shoes.
In support of this, it quotes certain sections of the report (assuming it was admissible in evidence) which plainly show the investigation was limited to turned shoes, McKay sewed shoes, and welt shoes, the only shoes on which duties were investigated or changed. The arbitrary uncontrolled discretion to do this is plainly bestowed on the Tariff Commission and President. This sort of discretion in the legislative process of levying a tax is part of the internal process and as such not subject to judicial review.
This with many other similar equally arbitrary legislative delegated guess-work discretions were all brought to the attention of the Supreme Court by the petitioner’s brief in the Hampton case without preventing the holding that the act was constitutional. The Norwegian Nitrogen Products case also now shows that they are plainly legislative in character as before pointed out.
*200The plaintiff’s sixth, contention is that the finding is void because Senate Resolution 295 covered shoes, “both men’s and women’s shoes,” while the Tariff Commission’s investigation purported by the notice of hearing to cover only shoes in chief value of leather. It might have been added the actual investigation, if the report is to be considered as evidence, actually covered only welt shoes and turned shoes and McKay sewed shoes.
The answer to this is that the Commission’s power is not derived from the Senate Resolution but from the statute, section 336, which commits all this to the Commission as part of its arbitrary uncontrolled legislative discretion in executing the internal flexible process.
The plaintiff's seventh contention is that the finding is invalid because of the arbitrary segregation of the merchandise into different classes and the arbitrary selection of samples. All this again is part of the discretionary internal legislative process.
The plaintiff’s eighth contention is that the finding is void because the President never had before him the facts of the investigation by the Tariff Commission even though said investigation was legal. If that were true and had been proved, it would not vitiate the President’s finding and proclamation of a new rate of tax.
The Tariff Commission can make as complete or incomplete investigation as they like and no court may interfere. The President can take what they give him, however incomplete, and adopt the suggestions for changes in the tariff rates, or refuse to adopt them, and no court can interfere, provided some sort of investigation is made, some sort of “legislative” hearing had, and some sort of affirmative or negative action taken by the President. These are all the statutory requirements.
The time to have thought of such things and then1 inevitable consequences to our system of democratic representative Government was when the constitutionality of the flexible tariff was under discussion in the Hampton case. The arbitrary discretionary guess-work character of the flexible tariff process was as evident and apparent then as it is now.
The last contention of the plaintiff is based upon the language of Judge Graham in the Hampton case, 14 Ct. Cust. Appls. 350, T. D. 42030, at page 367:
It is next contended by appellant that the President can not be haled into court and sued by a citizen; that his acts under section 315 are not reviewable by the courts; that the acts of an administrative officer exercising delegated power must, if they are held to be valid, always be so subject to review; and that the President may, under this section, practically rewrite a tariff law in form and in substance, without accountability to anyone. If this he true, it goes without saying that the section can not be sustained. [Emphasis mine.]
*201adding that under the statutes the President’s action is ministerial only, and “subject to review by the courts.”
Thus it is attempted to bring the points heretofore made concerning the execution of the internal flexible process under our judicial cognizance for review and correction by us.
However, whatever weight that statement may have temporarily had, it is overruled and put aside by the Supreme Court’s decision in Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294, as above referred to. That case held that the hearing was a mere “legislative” hearing because the whole executive process was a legislative process. The conclusive inference from that decision by Mr. Justice Cardozo is that as long as the external statutory requirements for a legislative investigation with a legislative hearing, with notice thereof, etc., is complied with, the President can do exactly what Judge Graham stated:
* * * practically rewrite a tariff law in form and in substance, without accountability to anyone.
in executing the flexible tariff process.
.As was said in the American Stores Co. v. United States, 58 Treas. Dec. 643, T. D. 44392, a holding (affirmed on principle by Mr. Justice Oardozo’s language in the Norwegian Nitrogen Products Co. case):
Those who successfully asserted the revolutionary doctrine that taxation (the power to destroy) may be imposed by Executive fiat and discretion, might be glad to see the disastrous effects of such a doctrine softened and mollified, by setting up, by construction, a.judicial review of such executive discretion, i. e., by waiving a magic wand which will convert the political act of fixing the future tax rate into a law suit, by making justiciable that which is inherently nonjustieiable. But the consequences of such a construction would be too great. It cannot be done by setting up a judicial Council of Elder Fathers to legislate from the bench. That would be a further step in the demolition of our constitutional division of powers upon which the safety and security of our unique form of representative government rests.
Those who talk about levying customs (or other) taxes in the same way that railroad charges are fixed by a commission are simply asserting the impossible. There is no likeness between the two processes. They cannot by legal magic be transformed into the same thing.
Any argument derived from the consequences of permitting taxation by Executive fiat and discretion, within the limits of the internal flexible process, could only have been advanced in the Hampton case itself in support of the claim that the Constitution limited the exercise of such legislative and taxing discretion to Congress alone. It was so advanced and distinctly overruled. It can have no weight now to soften these consequences by having the courts take part in legislation, under the guise of reviewing a so-called administrative act which is really political in character, i. e., the political act of fixing the amount of the future tax rate, which does not have to be reasonable, and can-be both arbitrary and confiscatory.
*202If the constitutional provisions, which confine legislative power and taxing power to the people’s representatives in Congress, may be avoided by the assumption that the President merely acts under-congressional direction intelligently expressed, so that the action of the President in proclaiming a new customs tax became, in legal effect,, their act and not his act, the inevitable legal consequences must ensue-. If these consequences could not be considered in the Hampton case-as a reason why the flexible tariff was unconstitutional, they cannot be considered now as a reason for creating a judicial review of a purely political act.
If the Congress is really acting through the President then it is the legislative political discretion of the Congress itself for which a judicial review is here sought. Judicial control of the scope and conduct of the Tariff Commission’s investigation, and of its method of reporting to the President and of his action upon their report, would amount to-judicial control and regulation of a congressional investigation as well as over the Commission’s method of reporting and over the President’s way of treating and considering its recommendations which the statute gives him discretionary authority to adopt or ignore according to his judgment.
No matter who performs it, fixing the amount of the future tax rate is a purely political act, legislative in kind. There is no candid escape from that mental conclusion. Consequently, if the courts can supervise the conduct of it and correct such performance, they perform a political act.
If the court can say whether the investigation and the exchange of information between the Commission and the President is fairly and justly performed, or quash the resulting levy if, in the court’s opinion, it is not fairly and justly performed, the court controls the conclusion and acts politically. By so doing, the court legislates, i. e.,_ takes part in the political act of fixing the amount of the future tax rate, departs from its high estate and independent position in the Government by thus taking part in political action.
In the argument of the Norwegian Nitrogen Products case plaintiff’s counsel made no attack upon the constitutionality of the flexible tariff which he described in the statement quoted in Judge McClel-land’s opinion below as his own handiwork (R. page 49). He had also-previously defended its constitutionality in the Hampton case. On page 36 of his brief before the Court of Customs and Patent Appeals he strongly relied upon the statement of Presiding Judge Graham in the Hampton case as follows:
It is next contended by appellant that the President can not be halted into court and sued by a citizen; that his acts under section 315 are not reviewable by the courts; that the acts of an administrative officer exercising delegated power must, if they are to be held valid, always be so subject to review; and that the President *203may, under this section, practically rewrite a tariff law in form and in substance,, without accountability to anyone. If this he true, it goes without saying that the section can not he sustained.
Plaintiff’s counsel in the case at bar also quotes and relies upon that statement.
Petitioner’s counsel in the Norwegian Nitrogen Products case emphasized and stressed Presiding Judge Graham’s further statement where he described the President’s action, under the flexible tariff as administrative merely and likens it to the appraisement of the value of a parcel of merchandise as follows:
* * * But whatever the legislative purpose may have been, the acts of the President/ thereunder are entitled to no greater significance and should he measured by no other rule than that to he given and used in considering the acts of any other fact-finding-official or hoard which the Congress may have named.
* * * * * * *
* * * We are unable to see why any different rule of law should be applied to the President’s finding of facts under section 315 than the one applied to the-finding of valuation by an appraiser of merchandise at our ports. In such cases,, while the courts have held the finding of valuation made by the appraiser to be conclusive, if he proceeds upon a wrong principle, contrary to law, his acts are subject to judicial control and correction. (Petitioner’s brief pp. 58 & 59 before-the Supreme Court.)
The Supreme Court, however, adopted none of this. On the contrary, they held that the internal flexible executive process, including-the investigation and hearing, was a legislative process, with, consequently, little or no judicial review.
In the Hampton case the constitutionality of the flexible tariff was-sustained because it was not legislation, and could, therefore, be performed by executive authority. Later, in the Norwegian Nitrogen Products case, the internal flexible process was held to be a legislative-process and therefore subject to practically no judicial review or correction.
Whatever difficulty there may be in reconciling these decisions, we are, of course, bound by the latest pronouncement of the Supreme-Court on the subject.
In conclusion it is noted that in Janssen v. United States, 61 Treas. Dec. 47, T. D. 45385, being an opinion denying a motion to amend at the San Francisco docket by adding a claim to the protest which alleged that the Tariff Commission and President had proceeded upon a wrong principle contrary to law, the question before us was discussed and the difference pointed out between such a claim and a. protest against the legality of an appraisement or reappraisement on like grounds as follows:
When appeal is made to reappraisement, or when, on protest, the legality of an. appraisement, or a reappraisement, of imported merchandise is contested before *204the courts, the importer is merely insisting that the law, as it exists, be correctly applied to his importation. He has a legal right to have the law rightly enforced as it affects him and his property.
When a shipper attacks a carrier’s rate before the Interstate Commerce Commission, or attacks their findings before the courts, he is asserting his legal right to “a reasonable charge for services rendered,” that is, asking that the rule of law which requires a reasonable rate shall be enforced as to him or his property.
But when an importer, domestic manufacturer, or consumer appears before the Tariff Commission to ask them to change, or not to change, an existing tariff tax, he is asserting no legal right whatsoever. He has no legal right either to keep the existing rate of taxation or to compel the levy of a higher or lower rate of taxation.
True, he has a statutory right under section 315 to insist on an investigation and to appear at the hearing and offer evidence supporting his view that there should or should not be a change in the rate, and to argue for or against it. But that is as far as the statutory right goes.
No one can litigate the question as to whether the application of the formula requires, or does not require, a change in the statutory rate, or whether the formula requires an increase or decrease. No legal right is infringed or legal duty broken when, within the terms and limits of the statute, the President, with the assistance of the Tariff Commission, exercises the power conferred. That power to carry out the process is left by the express terms of the law to the President after there has been an investigation by the commission.
The date of this ruling was January 7, 1932, while the Supreme Court’s decision in the Norwegian Nitrogen Products case asserting the same principle was February 6, 1933.