(dissenting).
I do riot agree with dismissal for lack of jurisdiction. It seems clear to me that jurisdiction is being confused with right to relief. The petitioner had the privilege of entering the federal court to claim that his constitutional rights were being violated. This gives the court jurisdiction. The fact that we believe that he was premature or that no federal question was raised or that he was not entitled to have his motion granted does not mean that the court had no jurisdiction to entertain his motion.
Unlike the employees in United Public Workers of America (C.I.O.) v. Mitchell, 1947, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754, the petitioner here had been served with a subpoena. In moving to have the subpoena quashed on constitutional grounds he asked the district court for immediate relief from what he asserted wp,s an unconstitutional interference. The employees in United Public Workers did not allege that anything had been done to affect them or their property. They asked for an advisory opinion which would protect them in the event that they might decide to do certain things which they desired to do and which they feared would be violations of an unconstitutional statute. It was to erase their inhibiting fear of dismissal under the statute that they brought their action. Their only “controversy” was an abstract political disagreement with Congress, not founded upon the immediate injury or threat of injury which the courts are empowered to prevent.
I would affirm on the merits.