dissenting:
I agree with the Court’s conclusions upon the substantive issues. But I am unable to believe that the trial af*461forded the petitioners conformed to constitutional requirements. The matter is of such importance as requires a statement of the reasons for dissent.
The Emergency Price Control legislation is unusual, if not unique. It is streamlined law in both substance and procedure. More than any other legislation except perhaps the Selective Service Act, in the combined effect of its provisions it attenuates the rights of affected individuals. The Congress regarded this as necessary, though it sought to preserve as much of individual right as it felt was consistent with controlling wartime inflation. To that judgment we owe all deference, saving only what we owe to the Constitution.
War such as we now fight calls into play the full power of government in extreme emergency. It compels invention of legal, as of martial tools adequate for the times’ necessity. Inevitably some will be strange, if also lifesaving, instruments for a people accustomed to peace and the normal working of constitutional limitations. Citizens must surrender or forego exercising rights which in other times could not be impaired. But not all are lost. War expands the nation’s power. But it does not suspend the judicial duty to guard whatever liberties will not imperil the paramount national interest.
I.
Judged by normal peacetime standards, over-all nationwide price control hardly has accepted place in our institutions. Notwithstanding the considerable expansion of recent years in this respect, the extension has been piecemeal.1 Until now it has not enveloped the entire economy.2 Whether control so extensive might be upheld in some emergency not created by war need not now be de*462cided. That it can be supported in the present circumstances and for the declared purposes there can be no doubt. It is enough, as the Court points out, that legal foundation exists in the nation’s power to make war, as this has been given to Congress and the Chief Executive. Cf. Hirabayashi v. United States, 320 U. S. 81.3
The foundation has relevance for each of the issues. And generally it has significance for the application of peacetime precedents. Decisions made then with limitations, explicit or implied, not affected by influence of the war power and the conditions of a state of war, cannot be wholly conclusive in their limiting effect upon the exercise of war-making authority. Care must be taken therefore, in applying them, both to see that they are observed so far as the dominant necessity permits and to be equally sure they are not misapplied to hamstring essential authority.4
As it is with the substantive control, so it is with delegating legislative power. War begets necessities for this, as for imposing substantive controls, not required by the lesser exigencies of more normal periods. In this respect certainly there is as much room for difference as exists when Congress is dealing wholly with internal matters and when it is acting with the President about foreign affairs. Cf. United States v. Curtiss-Wright Export Corp., 299 U. S. 304. Not only the broader power of Congress, but its conjunction in the particular delegation with the wider authority of the President, both as chief magistrate and as commander-in-chief, goes to sustain the greater delegation. Cf. Hirabayashi v. United States, supra. But the present legislation, as the Court’s opinion demon*463strates, does not go beyond the limits allowed by peacetime precedents in the substantive delegation.5
II.
My difficulty arises from the Act’s procedural provisions. They too are unusual. That is true, though each save one has been used before, and sustained, in separate applications. No previous legislation has presented quite this combination of procedural devices.6 In the combination, if in nothing more, unique quality would be found. But there is more.
Congress sought to accomplish two procedural objectives. One was to afford a narrow but sufficient method for securing review and revision of the regulations. At the same time, the Act created broad and ready methods for enforcement. The short effect of the procedure is to give the individual a single channel for questioning the validity of a regulation, through the protest procedure and the Emergency Court of Appeals, with review of its decisions here on certiorari. § 204. On the other hand, the varied and widely available means for enforcement include criminal proceedings, suits in equity, and suits for recovery of civil penalties, in the federal district courts and in the state courts. § 205 (a), (b), (c). See also *464§ 205 (d), (e), (f).7 And in all these enforcement proceedings the mandate of § 204 (d.) is that the court shall have no “jurisdiction or power to consider the validity of” a regulation, order or price schedule. The statute thus affords the individual, to question a regulation’s validity, one route and that a very narrow one, open only briefly. The administrator and others, to enforce it, have many. And in the enforcement proceedings the issues are cut down so that, in a practical sense, little else than the fact whether a violation of the regulation as written has occurred or is threatened may be inquired into.8
Disparity in remedial and penal measures does not necessarily invalidate the procedure, though it has relevance to adequacy of the remedy allowed the individual.9 Congress has broad discretion to open and close the doors to litigation. In doing so it may take account of the necessities presented by such a situation as it was dealing with here. To follow the usual course of legislation and permit challenge by restraining orders, injunctions, stay orders and the normal processes of litigation would have been, in this case, to lock the barn door after the horse had been stolen. There was therefore compelling reason for Congress to balance the scales of litigation unevenly, if only it did not go too far. In no other way could it protect the paramount national interest. If the result, within the permissible limits, is harsh or inconvenient for *465the individual, that is but part of the price he, with all others, must pay for living in a nation which ordinarily gives him so much of protection but in a world which has not been organized to give it security against events so disruptive of democratic procedures.
I have no difficulty with the provision which confers jurisdiction upon the Emergency Court of Appeals to determine the validity of price regulations or, if that had been all, with the mandate which makes its jurisdiction in that respect exclusive. Equally clear is the power of Congress to deprive the other federal courts of jurisdiction to issue stay orders, restraining orders, injunctions or other relief to prevent the operation of price regulations or to set them aside. So much may be rested on Congress’ plenary authority to define and control the jurisdiction of the federal courts. Constitution, Article III, § 2; Lockerty v. Phillips, 319 U. S. 182. It may be taken too, for the purposes of this case, that Congress’ power to channel enforcement of federal authority through the federal courts sustains the like prohibitions it has placed on the state courts.10 Without more, the statute’s provisions would seem to be unquestionably within the Congressional power. Cf. Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41.
Congress however was not content to create a single national tribunal, give it exclusive jurisdiction to determine all cases arising under the statute, and deny jurisdiction over them to all other courts.11 It provided for en*466forcement by civil and criminal proceedings in the federal district courts and in the state courts throughout the country.
This, too, it could do, though only if adequate proceedings, in the constitutional sense, were authorized. And I agree that the enforcing jurisdiction would not be made inadequate merely by the fact that no stay order or other relief could be had pending the outcome of litigation. Confronted as the nation was with the imminent danger of inflation and therefore the necessity that price controls should become effective at once and continue so without interruption at least until invalidated in particular instances, Congress could require individuals to sustain, in deference to the paramount public interest, whatever harm might ensue during the period of litigation and until each had demonstrated the invalidity of the regulation as it affected himself.12 Runaway inflation could not have been avoided in any other way. The lid had to go on, go on tight and stay tight. This necessity united with the general presumption of validity which attaches to legislation 13 and Congress’ power to control the jurisdiction of the courts to sustain its denial of power to all courts, including the enforcing courts, the Emergency Court and this one,14 to suspend operation of the regulations pending final determination of validity.
*467The crux of this case comes, as I see it, in the question whether Congress can confer jurisdiction upon federal and state courts in the enforcement proceedings, more particularly the criminal suit, and at the same time deny them “jurisdiction or power to consider the validity” of the regulations for which enforcement is thus sought. This question which the Court now says “presents no novel constitutional issue” was expressly and carefully reserved in Lockerty v. Phillips, supra. The prohibition is the statute’s most novel feature. In combination with others it gives the procedure a culminating summary touch and presents questions different from those arising from the other features.
The prohibition is unqualified. It makes no distinction between regulations invalid on constitutional grounds and others merely departing in some respect from statutory limitations, which Congress might waive, or by the criterion whether invalidity appears on the face of the regulation or only by proof of facts. If the purpose and effect are to forbid the enforcing court to consider all questions of validity and thus to require it to enforce regulations which are or may be invalid for constitutional reasons, doubt arises in two respects. First, broad as is Congress’ power to confer or withhold jurisdiction, there has been none heretofore to confer it and at the same time deprive the parties affected of opportunity to call in question in a criminal trial whether the law, be it statute or *468regulation,15 upon which the jurisdiction is exercised squares with the fundamental law. Nor has it been held that Congress can forbid a court invested with the judicial power under Article III to consider this question, when called upon to give effect to a statutory or other mandate.
It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without regard to them. Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot do. There are limits to the judicial power. Congress may impose others. And in some matters Congress or the President has final say under the Constitution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials.
III.
The idea is entirely novel that regulations may have a greater immunity to judicial scrutiny than statutes have, with respect to the power of Congress to require the courts to enforce them without regard to constitutional require*469ments. At a time when administrative action assumes more and more of the law-making function,16 it would seem the balance of advantage, if any, should be the other way. But there is none. The statute has impact upon individuals only through the regulations. They are in effect part of the Act itself, unless invalid. If invalid, they rule, just as the statute does, until set aside. And, in respect to constitutional requirements, they have no more immunity than the statute itself.17
Clearly Congress could not require judicial enforcement of an unconstitutional statute. The same is true of an unconstitutional regulation. And it is conceded that Congress could not have compelled judicial enforcement of all price regulations, without regard to their validity, if it had not given opportunity for attack upon them through the Emergency Court or if that opportunity is inadequate. But because the opportunity is afforded and is deemed adequate in the unusual circumstances, at any rate for some of its purposes, and because it was not followed, the Court holds that criminal enforcement must be given and the enforcing court cannot consider the question of validity.
*470If I understand it, the argument to sustain the conviction, in its broadest form, rests upon the proposition that Congress, by providing in one proceeding a constitutionally adequate mode for deciding upon the validity of a law or regulation, and requiring this to be followed within a limited time, can cut off all other right to question it and make that determination, or the failure to secure it in time, conclusive for all purposes and in all other proceedings. The proposition cannot be accepted in that broad form. To do so would mean, for instance, that if in this case a regulation had prescribed one maximum price for sales by merchants of one race or religion and a lower one for distributors of another, the judicial power of the United States would have to be exercised to convict the latter for selling at the formers’ price, if they had not availed themselves of the limited review afforded by this Act. It hardly would be consistent with accepted ideas of due process or equal protection for any court to impose penalty or restraint in such a case.18 And I cannot imagine this Court as sustaining such a conviction or any other as imposing it.19
The illustration is extreme and improbable of occurrence. But it serves to test the broad contention. Such a doctrine established as generally applicable would contain seeds of influence too dangerous for acceptance, more especially for the determination of criminal matters. No authority compels or enjoins this. And I am unwilling to give the idea adherence in particular applications without stating qualification which confines its possible effects *471to situations where the gravest dangers to the nation's interest exist and cannot be escaped in any other way.
The question narrows therefore to the inquiry, in what circumstances and under what conditions may Congress, by offering the individual a single chance to challenge a law or an order, foreclose for him all further opportunity to question it, though requiring the courts to enforce it by criminal processes? This question is the most important one in the case-and demands explicit attention. “It is easy enough to say that a party has enough of a remedy if statutory review of the order is available , and if he does not choose to employ that procedure he should be foreclosed from raising elsewhere the questions that could have been raised in that proceeding.”20 But to make this easy assumption is at once to decide the rock-bottom issue and, in my opinion, one this Court has not determined heretofore with effects upon the criminal process like those produced in this case.21
IV.
It is true that in a variety of situations and for a variety of reasons a person is foreclosed from raising issues, including some constitutional ones, where he has failed to exercise an earlier opportunity. Thus ordinarily issues cannot be raised on appeal which were not presented in *472the trial court. And a variant is that federal questions not raised in the state courts generally will not be considered here.22
But such instances of foreclosure, whether legislative or judicial in origin, do not support the broader basis of argument in this case. Two things are to be emphasized. One is that the previous opportunity is in an earlier phase of the same proceeding, not as here a separate and independent one of wholly different character. In other words, the determination of guilt or other matter ultimately in issue is not cut up into two separate, distinct and independent proceedings in different tribunals, in which neither body has power to consider and decide all the issues, but each can determine them only in part. The other thing for stress is that the foreclosure by failure to take the earlier chance is not universally effective. And this is true particularly of constitutional questions, some of which may be raised at any time.23 While Congress has plenary power to confer *473or withhold appellate jurisdiction, cf. Ex parte McCardle, 7 Wall. 506, it has not so far been held, and it does not follow, that Congress can confer it, yet deny the appellate court “power to consider” constitutional questions relating to the law in issue.
If the foreclosure is not always effective when the earlier phase of litigation is wholly judicial, it hardly should be when this consists of administrative or of both administrative and judicial proceedings, still less when these are civil in character and the later enforcement phase is criminal. In the enforcement of administrative orders the courts have been assiduous, perhaps at times extremely so,24 to see that constitutional protections to the persons affected are observed. By trial and error, ways have been found to give the administrative process scope for effective action and yet to maintain individual security against abuse, especially in respect to constitutional rights.25 The instances closest to the problem here have provided for attaching penalties, including criminal sanctions, to violations of orders. But generally by one method or another means have been supplied for postponing their impact, at any rate irrevocably, until after the order’s validity has *474been established.26 And in that effort this Court has joined.27
Whatever may be the limitations on judicial review in criminal proceedings under other administrative enforcement patterns,28 no one of these arrangements goes as far as the combination presented by this Act. It restricts the individual’s right to review to the protest procedure and appeal through the Emergency Court of Appeals Both are short-cut proceedings, trimmed almost to the bone of due process, even for wholly civil purposes, and pared down further by a- short statute of limitations. Protest must be filed within the sixty-day period. After that time, no protest can be made and no review can be *475had, except upon grounds arising later. § 203 (a).29 The only right is to submit written evidence and argument to the administrator. § 203 (c). There is none to present additional evidence to the court.30 Necessarily there is none of cross-examination. No court can suspend the order unless or until a judgment of the Emergency Court invalidating it becomes final.31 The penalties, civil and criminal, attach at once on violation and, it would seem, until the contrary is decided, with finality.32 At any rate, *476that is the statute’s purport. In short, the statute as drawn makes not only the regulation but also the penalties immediately and fully effective without regard to whether protest is made, the protest proceeding is carried to conclusion, or what the conclusion may be, except, and this is by inference, that violation after the order finally is held invalid may not be punishable.
This is the scope and reach of the statute. It is greater than any this Court heretofore has sustained.33 It places *477the affected individual just where the Court, speaking through Mr. Justice Lamar in Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, 662, said he could not be put: “He must either obey what may finally be held to be a void order, or disobey what may ultimately be held to be a lawful order.” Yet the Court holds this special proceeding “adequate” and therefore effective to foreclose all opportunity for defense in a criminal prosecution on the ground the regulation is void.
This is no answer. A procedure so summary, imposing such risks, does not meet the requirements heretofore considered essential to the determination or foreclosure of issues material to guilt in criminal causes. It makes no difference that petitioners did not follow the special procedure. The very question, posed in the Court’s own terms, is whether, if they had followed it, the remedy would be adequate constitutionally. It cannot be, under previously accepted ideas, if for one who follows it to a favorable judgment the penalty yet may fall. That question the Court does not decide. Unless it is decided, the question of adequacy, in any sense heretofore received, has not been determined, or an entirely new conception of adequacy has been approved.
*478Y.
But there is a deeper fault, even if we assume what neither the statute nor the Court’s opinion today justifies, that a potential offender who successfully challenges the constitutionality of a regulation or begins a challenge on constitutional grounds in the Emergency Court at any time before or during the criminal prosecution, cannot be convicted, at least until after final decision that the order is valid. There still remain those cases where he has either challenged unsuccessfully in the Emergency Court or has not challenged at all. In them the would-be offender is subject to criminal prosecution without a right to question in the criminal trial the constitutionality of the regulation on which his prosecution and conviction hinge. And this seems to be true without distinction as to the character of the ground on which he seeks to make the issue. To say that this does not operate unconstitutionally on the accused because he has the choice of refraining from violation or of testing the constitutional questions in a civil proceeding beforehand entirely misses the point. The fact is that if he violates the regulation he must be convicted, in a trial in which either an earlier and summary civil determination or the complete absence of a determination forecloses him on a crucial constitutional question. In short, his trial for the crime is either in two parts in two courts or on only a portion of the issues material to guilt in one court. This may be all very well for some civil proceedings. But, so far as I know, criminal proceedings of this character never before have received the sanction of Congress or of this Court. That, like many other criminals, an offender here can be punished for making the wrong guess as to the constitutionality of the regulation, I have no doubt. But that, unlike all other criminals, he can be convicted on a trial in two parts, one so summary and civil and the other criminal *479or, in the alternative, on a trial which shuts out what may be the most important of the issues material to his guilt, I do deny.
The Sixth Amendment guarantees to the accused “in all criminal prosecutions . . . the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed. . . .” By Article III, § 2, “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed. . . .” And, by the same section, “The judicial Power,” which is vested in the supreme and inferior courts by § 1, “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made . . . under their Authority.”
By these provisions the purpose hardly is to be supposed to authorize splitting up a criminal trial into separate segments, with some of the issues essential to guilt triable before one court in the state and district where the crime was committed and others, equally essential, triable in another court in a highly summary civil proceeding held elsewhere, or to dispense with trial on them because that proceeding has not been followed.34 If the validity of the *480order, on constitutional or other grounds, has any substantial relationship to the petitioners’ guilt, and it cannot be denied that it does, the short effect of the procedure is to chop up their trial into two separate, successive and distinct parts or proceedings, in each of which only some of the issues determinative of guilt can be tried, the two being connected only by the thread of finality which runs from the decision of the first into the second. The effect is to segregate out of the trial proper issues, whether of law or of fact, relating to the validity of the law for violation of which the defendants are charged, and to leave to the criminal court only the determination of whether a violation of the regulation as written actually took place and whether in some other respect the statute itself is invalid. If Congress can remove these questions, it can remove also all questions of validity of the statute or, it would seem, of law.
The consequences of this splitting hardly need further noting. On facts and issues material to validity of the regulation the persons charged are deprived of a full trial in the state or district where the crime occurs, even if the Emergency Court sits there, as it is not required to do. Their right to try those constitutional issues both of fact and of law on which a criminal conviction ultimately will hinge, is restricted rigidly to the introduction of written evidence before the administrator in a proceeding barely adequate, even under special circumstances like these, to meet the requirements of due process of law in civil proceedings. The court which makes the decision on these issues cannot consider the facts constituting the violation. It has no power to pass judgment of guilty or not guilty upon the whole of the evidence. It can only pronounce *481the law valid or invalid in a setting wholly apart from any charge of crime, from the facts alleged as its commission, and from the usual protections which surround its trial.
On the other hand the special tribunal’s judgment, rendered it may be on disputed facts as well as law, becomes binding against the accused, in the later proceeding. He cannot then dispute it, regardless of whether meanwhile the facts have changed35 or new and additional evidence has been discovered and might be tendered with conclusive effect, if it were admissible. He can tender no evidence on what may be the most vital issue in his case and one, it may likewise be, that the evidence then available would sustain overwhelmingly. The trial court must shut its eyes to all such offers of proof and, moreover, to any such issue of law.
VI.
A procedure so piecemeal, so chopped up, so disruptive of constitutional guaranties in relation to trials for crime, should not and, in my judgment, cannot be validated, as to such proceedings, under the Constitution. Even war does not suspend the protections which are inherently part and parcel of our criminal process. Such a dissection of the trial for crime could be supported, under our system, only upon some such notions as waiver and estoppel or res judicata, whether or not embodied in legislation.36 These too are strange and inadequate vehicles for trying whether the citizen has been guilty of criminal conduct. They bar defense, while keeping prosecution open, before it begins. *482Res judicata, by virtue of a judgment in some prior civil proceeding, where different constitutional guaranties relating to the mode and course of trial have play, has not done duty heretofore to replace either proof of facts before a jury or decision of constitutional questions necessary to make up the sum of guilt in the criminal proceeding itself. Congress can invade the judicial function in criminal cases no more by compelling the court to dispense with proof, jury trial or other constitutionally required characteristics than it can by denying all effect of finality to judicial judgments. Cf. Schneiderman v. United States, 320 U. S. 118, concurring opinion at 167-168. And while, as noted above, notions of waiver and estoppel have had place in criminal proceedings to an extent not wholly defined, in some instances harshly and artificially,37 they have not had effect heretofore to enable Congress to force a waiver of defense upon the individual by offering a choice between two kinds of trial, neither of which satisfies constitutional requirements for criminal trials. Certainly when the consequences are so novel and far reaching as they may be under this procedure, both for the individual and for the judicial system, these conceptions should not be given legal establishment to bring them into being.
To state the question often is to decide it. And it may do this by failure to reveal fully what is at stake. The question is not merely whether the protest proceeding is adequate in the constitutional sense for some of the purposes pertinent to that proceeding. It is rather what effect shall be given to the civil determination in the later and entirely different criminal trial. It is whether, by substituting that civil proceeding for decision of basic issues in the criminal trial itself, Congress can foreclose *483the accused from having them decided in that trial and thereby deprive him of the protections in trial guaranteed all persons charged with crime and thus of full and adequate defense. It is not the equivalent of that sort of defense to force one to initiate a curtailed civil suit or to cut him off shortly from all defense on the issues allocated to it, if he does not do so. Again, the question is not merely whether the individual can waive his constitutional trial of the issue of validity. It is rather whether Congress can force him to do so in the manner attempted and, beyond this, whether he and Congress together, in the combined effects of what they do, can so strip the criminal forum of its power and of its duty to abide the law of the land. And if the issue is further whether Congress can do this in some situations, respecting some issues, under more usual safeguards, the question requires attention to these important limitations.38
The procedural pattern is one which may be adapted to the trial of almost any crime. Once approved, it is bound to spawn progeny. If in one case Congress thus can. withdraw from the criminal court the power to consider the validity of the regulations on which the charge is based, it can do so for other cases, unless limitations are pointed out clearly and specifically. And it can do so for statutes as well. In short the way will have been found to avoid, if not altogether the power of the courts to review legislation for consistency with the Constitution,39 then in part at least their obligation to observe its commands and more especially the guaranteed protections of persons charged with crime in the trial of their causes. This is not merely control or definition of jurisdiction. It *484is rather unwarranted abridgement of the judicial power in the criminal process, unless at the very least it is confined specifically to situations where the special proceedr ing provides a fair and equal substitute for full defense in the criminal trial or other adequate safeguard is afforded against punishment for violating an order which itself violates or may violate basic rights. So much should not be accomplished merely by giving to the failure to take advantage of opportunity for summary civil determination, coupled with a short statute of limitations upon its availability, the effect of a full and final criminal adjudication. To do this hardly observes the substance of “adequacy” in criminal trials.
From what has been said it seems clear that Congress cannot forbid the enforcing court, exercising the criminal jurisdiction, to consider the constitutional validity of an order invalid on its face. Any other view would permit Congress to compel the courts to enforce unconstitutional laws. Nor, in my opinion, can Congress forbid consideration of validity in all cases, if it can in any, where the invalidity appears only from proof of facts extrinsic to the regulation. Again the racial or religious line is obvious and pertinent. If, for instance, one charged criminally with violating the regulation should tender proof it was being enforced in a manner to deny him the equal protection of the laws, because of his racial or religious connections, it is difficult to believe the evidence could be excluded consistently with the judicial obligation. The Constitution does not make judicial observance or enforcement of its basic guaranties depend on whether their violation appears from the face of legislation or only from its application to proven facts. Snowden v. Hughes, 321 U. S. 1; Yick Wo v. Hopkins, 118 U. S. 356, 373-374; United States v. Carotene Products Co., 304 U. S. 144,1 52-154.
For legislation not void on its face, a presumption of constitutionality attaches and remains until it is proven *485invalid or so in operation. In such cases there is no unfairness, nor any invasion of the court’s paramount obligation, in requiring one who would avoid the regulations’ impact to show they are not what they appear to be or that they are made to operate otherwise than as they purport or were intended. But it is one thing to say that burden must be borne within the enforcement proceeding itself and another to say it must be carried entirely outside it. To require the defendant to prove invalidity in such a situation in the criminal trial itself, upon a showing of violation of the statute, is wholly permissible. But for the court to be unable to receive tendered evidence which might disclose the statute’s invalid character and effect, is quite different. Certainly, under the circumstances of this case, it would seem to be as much a violation of individual right and as much an invasion of the judicial function for Congress to command the court not to receive the evidence, regardless of its character or effect, as for it to direct the court to enforce a law or an order void on its face.
VII.
To sanction conviction of crime in a proceeding which does not accord the accused full protection for his rights under the Fifth and Sixth Amendments, and which entails a substantial legislative incursion on the constitutionally derived judicial power, if indeed this ever could be sustained, would require a showing of the greatest emergency coupled with an inability to accomplish the substantive ends sought in any other way. No one questions the seriousness of the emergency the Price Control Act was adopted to meet. And it has been urged with great earnestness that the nation’s security in the present situation requires that the statute’s procedure, followed in this case, be sustained to its full extent.
That argument would be more powerful if enforcement of the statute, and thus maintenance of price control, were *486dependent upon accepting every feature. No doubt to impose the criminal sanction as has been done in this case implements the enforcement process with the deterrent effects which usually accompany that sanction. But neither its use nor enforcement of the statute’s substantive prohibitions requires that the criminal court shall not consider the validity of the regulations.
With the arsenal of other valid legal weapons available, there can be no lack of speedy and effective measures to secure compliance. The regulations are effective until invalidated. They cannot be suspended by any court, pending final decision here, if the last source of relief is sought. All the armory of equity, and with it the sanctions of contempt, are available to keep the regulations in force and to prevent violations, at least until decision here is sought and had that the regulations are invalid. The same weapons are available to enforce them permanently if they are found valid. Apart from defense when charged with crime, the individual’s only avenue of escape, and that not until final decision of invalidity has been made, is by protest and appeal through the single route prescribed. Finally, in addition to all this, the dealer may be punished for crime if he violates the regulation willfully and cannot show it is invalid either in his defense or by securing a judgment to this effect through the protest procedure. In either case, in view of the statute’s curtailment of his substantive rights and the consequent increase in the burden of proving facts sufficient to nullify the regulation,40 his chance for escape *487becomes remote, to say the least. In view of all these resources and advantages, the assertion hardly is sustained that enforcement requires also depriving the accused of his opportunity for full and adequate defense in his criminal trial.
War requires much of the citizen. He surrenders rights for the time being to secure their more permanent establishment. Most men do so freely. According to our plan others must do so also, as far as the nation’s safety requires. But the surrender is neither permanent nor total. The great liberties of speech and the press are curtailed but not denied. Religious freedom remains a *488living thing. With these, in our system, rank the elemental protections thrown about the citizen charged with crime, more especially those forged on history’s anvil in great crises. They secure fair play to the guilty and vindication for the innocent. By one means only may they be' suspended, even when chaos threatens. Whatever else seeks to dispense with them or materially impair their integrity should fail. Not yet has the war brought extremity that demands or permits them to be put aside. Nor does maintaining price control require this. The effect, though not intended, of the provision which forbids a criminal court to “consider the validity” of the law on which the charge of crime is founded, in my opinion, would be greatly to impair these securities. Hence I cannot assent to that provision as valid.
Different considerations, in part at any rate, apply in civil proceedings.41 But for the trial of crimes no proce*489dure should be approved which dispenses with trial of any material issue or splits the trial into disjointed segments, one of which is summary and civil, the other but a remnant of the ancient criminal proceeding.
The judgment should be reversed.
I am authorized to say that Mr. Justice Murphy joins in this opinion.
Cf., e. g., Nebbia v. New York, 291 U. S. 502.
Perhaps the Dearest previous approach to control so extensive was in the National Industrial Recovery legislation.
Cf. note 18 infra.
It goes without saying that whatever scope is allowed for operation of governmental authority in peace continues to be effective in war.
E. g., the administrator has no power to adopt codes of fair competition generally, such as was given under N. I. R. A. His principal function is single, to determine and make effective by regulation the maximum price at which a commodity may be sold. The task is vast and complex, in comparison with previously sustained price-fixing delegations, by virtue of the number of industries and items affected and the nation-wide scope of the authority. But the focus of the price-fixing function is narrow, although powerful, in its incidence upon a particular industry or operator.
Cf. Judicial Review of Price Orders under the Emergency Price Control Act (1942) 37 Ill. L. Rev. 256, 263-264; and other materials cited infra notes 20, 21.
By § 205 (f) (1), (2) licensing authority is given to the administrator, with special provisions for suspension for not more than twelve months by proceedings in state, territorial or federal district courts.
It is conceded that questions concerning the validity of statutory provisions, as distinguished from regulations, remain determinable by enforcing courts. See Sen. Rep. No. 931, 77th Cong., 2d Sess., 24-25, and compare EL R. 5479, 77th Cong., 1st Sess., printed in Hearings before Committee on Banking and Currency on H. R. 5479, 77th Cong., 2d Sess., 4, 7-8.
Cf. Parts IV, V, infra.
The Moses Taylor, 4 Wall. 411; Bowles v. Willingham, post, p. 503; cf. Claflin v. Houseman, 93 U. S. 130; Plaquemines Tropical Fruit Co. v. Henderson, 170 U. S. 511.
This it might have done, subject only to the requirement that the procedure specified for the single competent court afford a constitutionally adequate mode for determining the issues. Myers v. Bethlehem Shipbuilding Corp., supra. In case criminal jurisdiction were conferred, observance of the requirements of Article III, § 2, and of the *466Fifth and Sixth Amendments concerning such trials would be required. Cf. text infra, Parts V, VI.
Cf. L’Hote v. New Orleans, 177 U. S. 587; Welch v. Swasey, 214 U. S. 91; Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146.
Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580; United States v. Carolene Products Co., 304 U. S. 144, 152-154.
By § 204 (b) of the Act, the effectiveness of a judgment of the Emergency Court enjoining or setting aside the regulation, in whole or in part, is postponed until the expiration of thirty days from its entry and, if certiorari is sought here within that time, the postponement continues until this Court’s denial of the writ becomes final or until other *467final disposition of the case by this Court. By § 204 (d) the Emergency Court and this Court are given exclusive jurisdiction to determine the validity of the regulation and all other courts are denied “jurisdiction or power to consider” this question and to stay, restrain, enjoin or set aside any provision of the regulation or its enforcement. The net effect is to deprive all courts of power to suspend operation of the regulation pending final decision on its validity and to keep it in force until a final judgment of the Emergency Court, or of this Court on review of its decision, becomes effective.
Cf. text infra, Part III, at notes 16,17.
There hardly can be question that whenever an administrative agency, acting within the discretion validly conferred upon it by Congress, promulgates a regulation or issues an order of general applicability it is “making the law,” as effectively as is Congress when it enacts a specific prescription, by whatever name this may be called. United States v. Grimaud, 220 U. S. 506; Avent v. United States, 266 U. S. 127; United States v. Michigan Portland Cement Co., 270 U. S. 521.
Cf. the dissenting opinion of Mr. Justice Roberts. The notion that Congress somehow could cut off review of regulations for constitutional invalidity when it could not do so for statutes, of which suggestions appear in the legislative history and the briefs, was not adhered to in the oral argument as to regulations void on their face and is not tolerable when the effect would be to make the courts instruments for enforcing unconstitutional mandates. Cf. Part VI, infra.
See note 17 supra. The unique circumstances involved in Hirabayashi v. United States, 320 U. S. 81, confine that case to its facts, including the particular emergency with which legislation there under review had dealt, as respects the issue of equal protection.
Cf. notes 23, 33 infra.
McAllister, Statutory Roads to Review of Federal Administrative Orders (1940) 28 Calif. L. Rev. 129, 166.
Ibid. Cf. Judicial Review of Price Orders Under the Emergency Price Control Act (1942) 37 Ill. L. Rev. 256, 263; Stason, Timing of Judicial Redress from Erroneous Administrative Action (1941) 25 Minn. L. Rev. 560, 575, 576-581; Administrative Features of the Emergency Price Control Act (1942) 28 Va. L. Rev. 991, 998, 999; Reid and Hatton, Price Control and National Defense (1941) 36 Ill. L. Rev. 255, 283-284. For an analysis of litigation under this Act see Spx-echer. Price Control in the Courts (19441 44 Col. L. Rev. 34.
The foreclosure may be founded upon notions of waiver, comity, putting an end to litigation, securing orderly procedure or the advantages of having available for consideration in the later stages the informed judgment of the trial tribunal, or some combination of these and other considerations. Cf. Stason, Timing of Judicial Review from Erroneous Administrative Action (1941) 25 Minn. L. Rev. 560, 576-581; Berger, Exhaustion of Administrative Remedies (1939) 48 Yale L. J. 980, 1006. And the rule against allowing collateral attack, where a judgment is involved, is relevant to the broad problem of foreclosure.
Commonly it is said that “jurisdictional” questions, particularly concerning the court’s power to deal with the subject matter, may be raised at any stage or in a collateral attack. And this seems to be true also of some other constitutional issues through challenge to judgments by habeas corpus proceedings long after the judgment has become final. Cf., e. g., Ex parte Virginia, 100 U. S. 339; Ex parte Siebold, 100 U. S. 371; Johnson v. Zerbst, 304 U. S. 458; Mooney v. Holohan, 294 U. S. 103. Compare Revised Rules of the Supreme Court of the *473United States, Rule 27, paragraph 6; cf. Weems v. United States, 217 U. S. 349, 362; Columbia Heights Realty Co. v. Rudolph, 217 U. S. 547; Brasfield v. United States, 272 U. S. 448; Mahler v. Eby, 264 U. S. 32, 45.
Compare Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287; Crowell v. Benson, 285 U. S. 22; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38; Utah Fuel Co. v. National Bituminous Coal Comm’n, 306 U. S. 56, with Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41.
E. g., compare Federal Trade Commission v. Gratz, 253 U. S. 421 with Labor Board v. Mackay Radio Co., 304 U. S. 333; cf. also Morgan v. United States, 298 U. S. 468; 304 U. S. 1; United States v. Morgan, 307 U. S. 183. Compare note 24 supra; and see Ng Fung Ho v. White, 259 U. S. 276.
Thus, in some cases review and enforcement are concentrated exclusively in the same court. Cf. National Labor Relations Act, 49 Stat. 449, 29 U. S. C. § 151 et seq., giving the circuit courts of appeal exclusive jurisdiction to review and enforce the board’s orders, to which no penalty attaches until the board has sought and obtained an order from the court for enforcement. With this done, there is no danger the individual will be sentenced for crime for failure to comply with an invalid order. And there is non® that the court will be called upon to lend its hand in enforcing an unconstitutional edict or, for that matter, one merely in excess of statutory authority. Likewise, when there is provision for stay or suspension of the order pending determination of its validity, e. g., the Securities Act of 1933, 48 Stat. 81, 15 U. S. C. § 77i; the Securities Exchange Act of 1934, 48 Stat. 902, 15 U. S. C. § 78y; the Public Utility Holding Company Act of 1935, 49 Stat. 835, 15 U. S. C. § 79x. And this is true where the enforcing court is not forbidden to consider the validity of the order, a prohibition entirely novel to the Emergency Price Control Act.
Cf. Wadley Southern Ry. Co. v. Georgia, 235 U. S. 651, and authorities cited. In notable instances, also, where no specific provision has been made for either judicial review or avoiding the irrevocable impact of possibly invalid administrative action, and review has not been expressly denied, the courts have been ready to find means for review and for averting the impact of the penalty until it has been had. E. g., Ex parte Young, 209 U. S. 123; cf. Southern Ry. Co. v. Virginia, 290 U. S. 190.
Cf. McAllister, op. cit. supra, note 20; and note 26 supra.
Apparently it is contemplated that the “affidavits or other written evidence” submitted in support of the objections be filed with the protest, though later submissions may be made at times and under regulations prescribed by the administrator, or when ordered by the Emergency Court, or to that court when the administrator requests. §§203 (a), 204 (a). The administrator is authorized to permit filing of protest after the sixty days have expired solely on grounds arising after that time. § 203 (a). He is required to grant or deny the protest, in whole or in part, notice the protest for a hearing, or provide an opportunity to present further evidence, within thirty days after the protest is filed or ninety days after issuance of the regulation or order, or in the' case of a price schedule ninety days from the effective date, whichever occurs later. Ibid.
Cf. note 29 supra. In the Emergency Court of Appeals, “no objection to [the] regulation . . . and no evidence in support of any objection thereto, shall be considered . . . unless such objection” has been set forth in the protest or such evidence is in the transcript. Additional evidence can be admitted only if it was “either offered to the Administrator and not admitted [by him] or . . . could not reasonably have been offered to ... or included by the Administrator in such proceedings.” In that case it is to be presented to the administrator, received by him and certified to the court together with any modification he may make in the regulation. Where the administrator so requests, however, such additional evidence “shall be presented directly to the court.” § 204 (a).
Cf. note 14 supra.
That is true whether the infraction occurs before or after the time for protest or appeal has passed and, it would seem, notwithstanding the protestant may proceed with all diligence. The statute makes no provision for relieving from its penal sanctions one who follows the protest procedure to the end in case the protest eventually *476is sustained, if meanwhile he disobeys the order. Punishment is not made dependent on or required to await the outcome of that proceeding. Rather, the enforcing court is commanded not to consider validity. The command is unqualified, unvarying and universal. It is cast in the compelling terms of “jurisdiction.” Under the statute’s provisions, it applies as much when trial and conviction occur before the Emergency Court’s decision is final as afterwards.
Cf. Bradley v. Richmond, 227 U. S. 477, which involved a state prosecution for violating a state law. In affirming the conviction this Court rejected the contention that the administrative determination on which prosecution rested was unconstitutional. But it would not follow from the fact a state might thus condition its criminal proceedings consistently with the Fourteenth Amendment’s requirement of due process that Congress can do likewise for federal criminal trials. Cf. infra Part v. Wadley Southern Ry. Co. v. Georgia, supra, also involved a state suit for civil penalty for violation of a state administrative order, to which the limitations of the Sixth Amendment would not apply. The dicta which the Court regards as pointing to the validity of the procedure here do not sustain it, not only for this reason, but because the special procedure was different, did not purport to foreclose defense to enforcement if not followed, and expressly asserted that, if followed, penalty could be imposed only for violations taking place after the order was adjudicated valid, not beforehand. This case involves the very risk the Court there said could not be imposed.
Other instances relied on by the Court involve only civil, not criminal consequences, or distinguishable instances of criminal prosecution, and therefore have no conclusive bearing here. As the Court seems to recognize, the question now presented was not presented or considered in Armour Packing Co. v. United States, 209 U. S. 56, or in United States v. Adams Express Co., 229 U. S. 381. And it was not *477involved or determined in the cited decisions, either here or in the inferior federal courts, dealing with carriers who violate tariffs framed and filed by themselves and thereby become subject to penalty. The same is true of the cases holding that threatened criminal prosecution for violation of administrative orders cannot be enjoined.
In these decisions, none of the statutes forbade the enforcing court “to consider the validity” of the orders, none afforded a special proceeding so summary as that provided here, and only United States v. Vacuum Oil Co., 158 F. 536, raised a constitutional question relevant here. Falbo v. United States, 320 U. S. 549, involved a different procedure and a different and more urgent problem. Compare Part YII infra. It may be doubted the decision’s effect is to preclude the enforcing court from examining constitutional questions affecting the order’s validity.
Nor, according to accepted notions of tbe criminal process, has it ever been contemplated that some of the issues of fact should be provable by confrontation of witnesses and others by written evidence only, when other evidence is or may be available. If, for instance, Congress should define an act as a crime, but should require that in the trial issues relating to the validity of the law furnishing the basis for the charge should be proven only by affidavit, though others by the normal processes of proof, the proceeding hardly could be held to comport with the kind of trial the Constitution, and more particularly the Sixth Amendment requires. And if Congress should go further and provide for determination of the issues triable only by affidavit in a court or other body sitting elsewhere than in the state and district of the crime, with other issues triable before a court with a jury empanelled there, but with that court compelled to give finality *480to the other’s findings against the accused, the departure from constitutional requirements would seem to be only the more obvious. This is not far in effect, if it is at all, from what has been done here.
His only remedy is to begin a new protest proceeding (§ 203 (a)), which is not only as limited in character as the original one, but under the administrator’s procedural regulations must be “filed within . . . sixty days after the protestant has had, or could reasonably have had, notice” of the changed facts. Revised Procedural Regulation 1, § 1300.26. Cf. notes 29, 30 supra.
Cf. note 22 supra.
Compare Johnson v. Zerbst, 304 U. S. 458; Glasser v. United States, 315 U. S. 60; with Patton v. United States, 281 U. S. 276; Adams v. United States ex rel. McCann, 317 U. S. 269.
Cf. note 41 infra.
Cf. McLaren, Can a Trial Court of the United States Be Completely Deprived of the Power to Determine Constitutional Questions? (1944) 30 A. B. A. J. 17.
That burden is heavy, as this case illustrates. Petitioners attacked the regulation’s constitutionality on the ground that, by compelling them to sell at prices less than cost, it deprived them of their property without due process of law. And, on the same ground, they urged the regulation violates the statute’s requirement that the price fixed allow margins which are “generally fair and equitable.” But the Fifth Amendment does not insure a profit to any given individual *487or group not under legal compulsion to render service, where doing so would contravene an enacted policy of Congress sustainable on a balance of public necessity and private hardship. Cf. the Court’s opinion herein and authorities cited; also Bowles v. Willingham, post, p. 503. And in this case both the statute’s basic purpose and its terms, as well as the legislative history, cf. Sen. Rep. No. 931, 77th Cong., 2d Sess., 15, show that Congress intended to forbid only a price so low that the trade in general, not merely some individual dealers or groups, could not have the margin prescribed. Bowles v. Willingham, supra. Petitioners’ offers of proof, in this respect, which the trial court rejected, went only to show that they, or at most the meat wholesalers of Boston, could sell beef only at a loss. Harsh as this may seem in individual instances, it was Congress’ judgment that the interests of dealers who could not operate profitably at a level of prices permitting a fair margin generally to the trade, would have to give way, in the acute prevailing circumstances, to the paramount national necessity of keeping prices stabilized; and that judgment, by virtue of those circumstances, was for Congress to make. Accordingly the tendered proof hardly was sufficient to raise an issue of confiscation giving ground for setting aside the regulation.
It is likely that by far the greater number of challenges would arise on grounds of supposed confiscation, in which this burden would have to be met. Once it is made clear just what that burden is, the fear hardly seems justified that enforcement would swamp the agency with litigation. In any event, the remedy for that would be by providing a more adequate enforcing staff, not by cutting off defense to criminal prosecutions based on invalid orders.
Cf. concurring opinion in Bowles v. Willingham, post, p. 503. Limitations applicable solely to criminal proceedings fall to one side. Giving the decision in the special proceeding, or failure to seek it after reasonable opportunity, the effect of res judicata in later civil proceedings does not therefore deprive the party affected of opportunity for full and adequate defense in his criminal trial, where not only his rights of property, but his liberty or his life may be at stake.
However widely the character of the special remedy may be varied to meet different urgencies, with consequences of foreclosure for civil effects, the foreclosure of criminal defense should be allowed, if at all, only by a procedure affording its substantial equivalent, in relation to special constitutional issues and in such a manner that the failure to follow it reasonably could be taken as an actual, not a forced waiver. Thus, possibly foreclosure of criminal defense could be sustained, when validity turns on complex economic questions, usually of confiscatory effects of legislation, and proof of complicated facts bearing on them. But, if so, this should be only when the special proceeding is clearly adequate, affording the usual rights to present evidence, cross-examine, and make argument, characteristic of judicial proceedings, so that, if followed, the party would have a sub*489stantial equivalent to defense in a criminal trial. And the opportunity should be long enough so that the failure to take it reasonably could be taken to mean that the party intends, by not taking it, to waive the question actually and not by forced surrender. So safeguarded, the foreclosure of such questions in this way would not work a substantial deprivation of defense.
In respect to other questions, such as the drawing of racial or religious lines in orders or by their application, of a character determinable as well by the criminal as by the special tribunal, in my opinion the special constitutional limitations applicable to federal criminal trials, and .due enforcement of some substantive requirements as well, require keeping open and available the chance for full and complete defense in the criminal trial itself.