120 UNEMPLOYMENT IN THE UNITED STATES 
right whatever to take it, and the State has no right whatever to 
give it. For, said the Supreme Court of the United States in that 
case, ‘‘this power”’—that is, the police power—‘‘can neither be 
abrogated ‘nor bargained away. It is inalienable, even by express 
grant.” 
I know it may be said, as was remarked this morning, that the police 
power of the States may be exchanged for Federal appropriation, as 
indicated in the maternity act, but I wish to direct your attention to 
the fact that upon the express recommendation of the President of 
the United States the policy expressed in the maternity act was 
properly abandoned by Congress, therefore it constitutes no precedent 
for the continuation of this policy. It was also remarked in the course 
of discussion this morning that the cases which went to the Supreme 
Court in connection with the maternity act—that 1s, Frothingham ». 
Mellon and Massachusetts ». Mellon, in the Two hundred and sixty- 
second United States—were authority for the validity of legislation 
of this character. Well, of course, the court declined in that case to 
entertain jurisdiction, which was naturally the first case raised, and 
in declining to entertain jurisdiction on behalf of a private citizen 
undertaking to inquire into a general appropriation act, or on the 
application of the state of Massachusetts, they said they did not 
show a sufficient property interest to justify the court in taking 
jurisdiction, but the court said expressly: 
We have reached the conclusion that the cases must be disposed of for want of 
jurisdiction, without considering the merits of the constitutional questions. 
They were therefore not passed upon at all. 
Mr. Summers. Under the Frothingham decision, who could litigate 
the question of the extent of authority on the part of the Federal 
Government to make that character of appropriations? 
Mr. Emery. Nobody, as I see it, under the form of the bill. If 
the bill had been different in form—let us suppose, for example, that 
Congress had levied a special tax upon the people of the United States 
for the purpose of creating a fund out of which to pay the appropria- 
tions to the various States, which were provided for in the maternity 
act, and then the individual taxpayer might either have paid the 
tax and brought an action for its recovery, or might have undertaken 
to restrain the payment, the enforcement of the law, and might on 
that ground have been able to contest it, for there there would have 
been a specific issue, but this was merely a trifling item in a very 
large appropriation bill. 
Mr. SumneRs. I recognize that Congress must be the judge of its 
own constitutional powers and must decide that question upon the 
point as to whether or not a question can be litigated. 
Mr. Emery. Well, you realize the reason I emphasize the thing is 
that in the many questions of legislation that come before you, you 
can exercise many powers in a form that they can not be questioned, 
and as I have said, the protection of the constitutional authority is 
not reposed solely in the court; it is reposed in the legislative and 
executive officers who act under its terms, and it is in the hands of 
the citizens, who must himself undertake to provide political factors. 
Suppose, for example, that you gentlemen provided tomorrow a 3- 
hour day for Government employees. Nobody could question the 
exercise of your power in a court. The remedy would have to be 
political.