Petitioner in No. 189 was convicted of selling heroin to an
undercover agent not pursuant to a written order on an official
form, in violation of § 2 of the Harrison Narcotics Act, 26 U.S.C.
§ 4705(a). In No. 271, petitioner was convicted of selling
marihuana to an agent who did not have the official order form
required by § 6 of the Marihuana Tax Act, 26 U.S.C. § 4742(a). The
Court of Appeals affirmed both convictions over objections that the
statutory obligation to sell only pursuant to an official order
form violated petitioners' Fifth Amendment privilege against
self-incrimination.
Held:
1. With respect to he Marihuana Tax Act, the petitioner seller's
claim of violation of his privilege against self-incrimination is
not substantial. Pp.
396 U. S.
91-94.
(a) There is no real possibility that purchasers would comply
with the order form requirement even if the seller insisted on
selling only pursuant to the prescribed form, in view of the $100
per ounce tax on an unregistered transferee; the illegality under
federal and state law, and the fact that the Fifth Amendment, as
held in
Leary v. United States, 395 U. S.
6, relieves unregistered buyers of any duty to pay the
tax and secure the order form. P.
396 U. S.
92.
(b) In
Leary, supra, the statute purported to make all
marihuana purchases legal from the buyer's viewpoint at his option;
but, to exercise that option and avoid the federal penalty, he was
forced to incriminate himself under other laws. Here, compliance by
selling is foreclosed as a viable option not because the seller
might incriminate himself, but because he will seldom, if ever,
encounter an unregistered purchaser willing and able to secure the
order form. In such a case, "full and literal" compliance
Page 396 U. S. 88
by the seller with § 472(a) means imply that he cannot sell at
all. Pp.
396 U. S.
92-93.
(c) That there is a small number of registered marihuana dealers
does not change this result, since petitioner's customer was not a
registered dealer, and it is unlikely that even a registered dealer
would present an order form to an unregistered seller. Pp.
396 U. S.
93-94.
2. Petitioner seller's self-incrimination claim under the
Harrion Narcotics Act is likewise insubstantial. Pp.
396 U. S.
94-98.
(a) Petitioner's argument, which assumes that an order form
would be forthcoming if he refused to sell without it, is
unrealistic, there being no substantial possibility that a buyer
could have secured an order form to obtain heroin, virtually all
dealings in which are illicit. Pp.
396 U. S.
96-97.
(b) Since petitioner's customer was not a registered buyer, the
alleged possibility of incrimination is purely hypothetical. P.
396 U. S.
97.
(c) Even if petitioner's customer were registered, the result
would probably be the same, since it is unlikely that a registered
dealer would enter the name of an unregistered seller on the order
form and record what would surely be an illegal sale. Pp.
396 U. S.
97-98.
No. 189, 398 F.2d 511, and No. 271, 407 F.2d 905, affirmed.
Page 396 U. S. 89
MR. JUSTICE WHITE delivered the opinion of the Court.
These cases raise related questions about the availability of
the Fifth Amendment as a defense to convictions for selling
narcotic drugs and marihuana without the written order forms
required by law.
James Minor, petitioner in No. 189, sold heroin on two separate
occasions in 1967 to an undercover narcotics agent. Having waived
trial by jury, petitioner was convicted in the United States
District Court for the Southern District of New York of selling
narcotics not pursuant to a written order on an official form -- a
violation of § 2 of the Harrison Narcotics Act, now 26 U.S.C. §
4705(a). [
Footnote 1]
Michael Buie, petitioner in No. 271, sold five packages of
marihuana in May, 1967, to an undercover narcotics agent. The agent
did not have the official order form required for such transactions
by § 6 of the Marihuana Tax Act, now 26 U.S.C. § 4742(a). [
Footnote 2] A jury in the United States
District Court for the Southern District of New York convicted
petitioner of violating § 4742(a).
Page 396 U. S. 90
In separate opinions, the Court of Appeals for the Second
Circuit affirmed both convictions over objections in each case that
the statutory obligation to sell only in pursuance of an official
order form violated petitioner's Fifth Amendment privilege against
self-incrimination.
United States v. Minor, 398 F.2d 511
(1968);
United States v. Buie, 407 F.2d 905 (1969). We
granted certiorari, 395 U.S. 932 and 976, to consider petitioners'
Fifth Amendment claims, particularly in light of our intervening
decision in
Leary v. United States, 395 U. S.
6 (1969). For the reasons that follow, we affirm the
judgments in both cases.
We deal first with No. 271. Under pertinent provisions of the
Marihuana Tax Act, 26 U.S.C. §§ 4751-4753, every person who sells,
deals in, dispenses, or gives away marihuana must register with the
Internal Revenue Service and pay a special occupational tax. The
Act also imposes a tax on transfers of marihuana, to be paid by the
transferee; the rate for those who have registered and paid the
occupational tax is $1 per ounce; for those who have not or who
cannot register, the rate is $100 per ounce. Under § 4742(a), it is
illegal to transfer marihuana except pursuant to a written order of
the transferee on a form obtained by the latter at the time he pays
the transfer tax. The order form, when issued, must carry the name
and address of both buyer and seller and the amount of marihuana to
be purchased. 26 U.S.C. § 4742(c). Other provisions of § 4742
require the form to be issued in triplicate, one copy to be
retained by the Internal Revenue Service, the other copy to be kept
in the buyer's files, and the original to be delivered to the
seller and retained by him. 26 U.S.C. § 4742(d). Both original and
copies are open to inspection by federal and state law enforcement
officers. 26 U.S.C. §§ 4742(d), 4773.
Buie argues that, because the buyer's order must be on the form
issued by the Secretary of the Treasury, and
Page 396 U. S. 91
because § 4742(c) requires the seller's name and address to be
on the form before its issuance to the buyer, the seller is forced
to incriminate himself: he is forced to insist on an order form
linking him to an illicit transaction, and, in many instances, must
furnish one of those links himself by giving his name to the buyer
so that the latter will have the data necessary to secure the form.
Moreover, it is said that the very act of selling pursuant to the
order form forces the seller to admit that he is the person named
in the document and to acknowledge the sale of specified amounts of
marihuana on a specified date; the sale also leads to the further
requirement that both seller and buyer retain a copy of the form
open to inspection by law enforcement officials.
We have considerable doubt that any of these arguments would
withstand close scrutiny, [
Footnote
3] but we find it unnecessary to appraise them in detail
because we have concluded that there is no real and substantial
possibility that Buie's purchaser, or purchasers generally, would
be willing to comply with the order form requirement even if their
seller insisted on selling only pursuant to the form prescribed by
law.
Page 396 U. S. 92
The situation of the buyer is this: if he applies for the order
form, he must announce his intention to purchase marihuana -- a
transaction that, if he is unregistered, will involve a tax of $100
for each ounce of marihuana involved in the impending sale and that
is illegal under both federal and state law. We have great
difficulty in believing, and nothing in this record convinces us,
that one who wishes to purchase marihuana will comply with a
seller's request that he incriminate himself with federal and local
authorities and pay $100 per ounce in taxes in order to secure the
order form. The possibility is particularly unlikely in view of the
fact that the Fifth Amendment relieves unregistered buyers of any
duty to pay the transfer tax and secure the incriminating order
form.
Leary v. United States, 395 U. S.
6 (1969). Except that they are sources of marihuana,
sellers have no magic power over buyers, and the characteristics of
marihuana do not suggest that buyers would be driven by such urgent
need that to get the drug they would incriminate themselves at the
seller's behest and pay the prohibitive tax imposed on the
transfer. As insistent as sellers might be, it is extremely
unlikely that buyers would comply.
Buie's situation thus bears little resemblance to the situation
that confronted Leary. The vice of the statute in that case -- as
in
Marchetti v. United States, 390 U. S.
39,
Grosso v. United States, 390 U. S.
62, and
Haynes v. United States, 390 U. S.
85 (1968) -- stemmed from the dilemma that confronted
the buyer. The statute purported to make all purchases of marihuana
legal from the buyer's viewpoint at his option; all he had to do to
avoid the federal penalty was to secure the form and pay the tax.
But to exercise that option and avoid the federal penalty, he was
forced to incriminate himself under other laws. In the present
case, the first horn of this dilemma does not confront the seller.
In the
Page 396 U. S. 93
face of a buyer's refusal to secure the order form, the option
of making a legal sale under federal law is foreclosed by the
buyer's decision, and "full and literal compliance" with the law by
the seller means simply that he cannot sell at all. [
Footnote 4] There is no real and substantial
possibility that the § 4742(a) order form requirement will in any
way incriminate sellers, for the simple reason that sellers will
seldom, if ever, be confronted with an unregistered purchaser who
is willing and able to secure the order form.
This conclusion is not affected by the fact that there is a tiny
number of registered marihuana dealers -- some 83 in the entire
country, according to government figures for 1967. [
Footnote 5] In order to register, dealers
must show that they are in compliance with local laws, [
Footnote 6] and, when
Page 396 U. S. 94
registered, can get order forms by paying a transfer tax of only
$1 per ounce. A registered dealer is thus not subject to the
deterrent pressures operating on the unregistered dealer. But the
possibility that a registered dealer would present an order form to
an unregistered seller like Buie is itself a hypothesis more
imaginary than real; any buyer who can purchase marihuana from a
legitimate source is hardly likely to find it to his advantage to
secure the drug instead on the illegal market. In any event, it is
quite clear in this case that Buie's customer was not a registered
dealer. Nor is there anything to suggest that he would have been
willing or able to get an order form had he been asked.
No. 189. The same result must follow in Minor's case, and for
similar reasons. The Harrison Narcotics Act, 26 U.S.C. § 4701
et seq., applies to various drugs, including heroin.
Dealers must register and pay an occupational tax, 26 U.S.C. §§
4721-4722; producers or importers who sell must purchase stamps and
affix them to the package, 26 U.S.C. §§ 4701, 4703, 4771(a)(1), and
it is illegal to purchase or sell except from the original stamped
package, 26 U.S.C. § 4704(a). As in the case of the Marihuana Tax
Act, all transfers, with exceptions not relevant here, must be made
pursuant to a written order form issued by the Government. 26
U.S.C. § 4705(a). Only dealers who are in compliance with state law
may register, and only registered dealers may secure order forms.
26 U.S.C. § 4705(f), (g);
see 26 U.S.C. § 4721; 26 CFR
151.24. Order forms are issued in triplicate to proper applicants,
and are stamped only with the name of the prospective purchaser. 26
U.S.C. § 4705(f); 26 CFR § 151.161.
Page 396 U. S. 95
When a purchaser decides to execute a form, he fills in the
exact date of the order and the number and type of drugs requested
and signs his name to the form. 26 CFR §§ 151.163-151.165, 151.167.
The purchaser retains the duplicate and delivers the original and
the triplicate thus executed to the seller, who enters the number
and size of the stamped packages furnished and the date when each
item is filled. 26 CFR §§ 151.161(a), 151.185. A regulation, 26 CFR
§ 151.201, requires the seller to forward the triplicate to the
Internal Revenue Service at the end of the month. Section 4705(d)
of the Act requires both seller and buyer to keep their respective
copies for a period of two years and to make them accessible to
inspection by law enforcement officers.
The order form provisions for narcotic drugs thus differ from
the marihuana provisions in three principal respects. First, the
prospective seller's name does not have to be given to the
Government when the order form is secured, but is filled in only
when the form is subsequently executed. [
Footnote 7] Second, although the marihuana seller
apparently does not have to add anything to the order form in
making the sale, the seller of narcotics must enter the amounts
sold and the dates. Finally, unlike the Marihuana Tax Act, which,
at least in theory, permits any person to buy as long as the
transfer tax is paid, the Harrison Narcotics Act explicitly forbids
the sale of order forms to any but registered dealers and permits
registration
Page 396 U. S. 96
only by those "lawfully entitled" under the law of their State
to deal in the drug. [
Footnote
8]
Like Buie, Minor argues that compliance with the order form
provision would compel him to give incriminating information to be
preserved in his and the buyer's file and to be made readily
accessible to law enforcement agents. Like Buie's argument, Minor'
argument assumes that an order form would otherwise be forthcoming
if he refused to sell without it, [
Footnote 9] and founders if, in reality, there is no
substantial possibility that the buyer would or could have secured
an order form. As in Buie's case, we are convinced that this
possibility is an unreal one. Prospective buyers who have either
failed to register or cannot register because their dealings in the
drug are illicit -- and petitioner himself strenuously argues that
virtually all dealings in heroin are illicit [
Footnote 10] -- simply
Page 396 U. S. 97
are not among the class of persons to whom sellers are permitted
to sell under any condition. When dealing with buyers in this
class, the seller faces a risk of incrimination by reason of §
4705(a), since there will be and can be no order form involved.
Confronted with would-be buyers in this class, "full and literal
compliance" with § 4705(a) leaves the seller only one alternative:
not to sell. Since, from this record, it is clear that Minor's
customer was not a registered buyer, the alleged possibility of
incrimination is purely hypothetical.
We doubt that our conclusion would be different even if Minor's
customer were registered. It is true that there were some 400,000
registered dealers under the Harrison Narcotics Act in 1967,
[
Footnote 11] and that
registered dealers can readily get order forms issued in blank. It
is conceivable, of course, that a registered dealer would seek to
buy heroin on the illegal market, but it is difficult to imagine
that he would enter the name of an unregistered seller on the order
form and make a record of what would surely be an illegal sale.
[
Footnote 12] Such unlikely
possibilities
Page 396 U. S. 98
present only "imaginary and insubstantial" hazards of
incrimination, rather than the "real and appreciable" risks needed
to support a Fifth Amendment claim. [
Footnote 13]
The judgments in both cases are affirmed.
It is so ordered.
MR. JUSTICE BLACK and MR JUSTICE DOUGLAS dissent in No. 271.
* Together with No. 271,
Buie v. United States, also on
certiorari to the same court.
[
Footnote 1]
Section 4705(a) provides:
"It shall be unlawful for any person to sell, barter, exchange,
or give away narcotic drugs except in pursuance of a written order
of the person to whom such article is sold, bartered, exchanged, or
given, on a form to be issued in blank for that purpose by the
Secretary or his delegate."
[
Footnote 2]
Section 4742(a) provides:
"It shall be unlawful for any person . . . to transfer
marihuana, except in pursuance of a written order of the person to
whom such marihuana is transferred, on a form to be issued in blank
for that purpose by the Secretary or his delegate."
Under 26 U.S.C. § 7237(b), any person who violates the
provisions of §§ 4705(a) or 4742(a) "shall be imprisoned not less
than 5 or more than 20 year and, in addition, may be fined not more
than 20,000."
[
Footnote 3]
The obligation to furnish the necessary information is in terms
placed on the buyer; while his compliance with that obligation may
"inform" on the seller, it would not ordinarily be thought to
result in the latter's "self-incrimination." Nor is there anything
in the record to suggest that buyers cannot get a seller's name
except through the seller himself, or that the simple act of
selling pursuant to an order form -- even assuming the act is
"testimonial" for purposes of the Fifth Amendment -- adds
significantly to the information that the Government has already
obtained from the buyer. Finally, whatever the merits of a seller's
attempt to assert the privilege in a prosecution for failure to
keep and exhibit the order forms, it need not follow that he can
similarly dispense with the requirement that he sell only to buyers
who first identify themselves, via the order form, as lawful
purchasers.
Cf. Nigro v. United States, 276 U.
S. 332,
276 U. S. 351
(1928);
United States v. Doremus, 249 U. S.
86,
249 U. S. 94
(1919).
[
Footnote 4]
It would have been no answer in
Leary to suggest that
the buyer avoid his dilemma by not buying.
See Marchetti v.
United States, 390 U. S. 39,
390 U. S. 51-52.
But the buyer in
Leary, unlike the seller here, was
presented with the possibility of both purchasing and complying
with the federal law if he would only incriminate himself. In the
present case, compliance by selling is foreclosed as a viable
option not because the seller might incriminate himself, but
because the buyer refuses to meet a specified condition. Nothing in
the Fifth Amendment prevents Congress from restricting a seller's
market to specified classes of duly licensed buyers. And although
the buyer's refusal to comply with the Act's requirements may stem
from his fear of incrimination, the buyer's personal privilege
cannot be raised by the seller as an excuse for evading the clear
statutory requirement.
See George Campbell Painting Corp. v.
Reid, 392 U. S. 286
(1968);
Rogers v. United States, 340 U.
S. 367 (1951).
[
Footnote 5]
U.S. Treasury Department, Bureau of Narcotics, Traffic in Opium
and Other Dangerous Drugs 42 (1968).
[
Footnote 6]
The regulations, 26 CFR §§ 152.22, 152.23, which limit
registration to persons whose dealings are legal under relevant
state and local laws, are supported by the legislative history and
represent what is by now long-established administrative practice.
See Leary v. United States, 395 U. S.
6,
395 U. S. 24 n.
38 (1969); H.R.Rep. No. 792, 75th Cong., 1st Sess., 2 (1937);
S.Rep. No. 900, 75th Cong., 1st Sess., 3 (1937); Hearings on H.R.
6906 before a subcommittee of the Senate Committee on Finance, 75th
Cong., 1st Sess., 6 (1937); Hearings on H.R. 6385 before the House
Committee on Ways and Means, 75th Cong., 1st Sess., 8 (1937).
[
Footnote 7]
It is not specified in either the statute or the regulations
when the blank for the seller's name is filled in or by whom. But
the form itself is addressed "to" the seller, and the form and the
regulations contain provisions that enable a form "made out to" one
seller, to be endorsed by him to another if the first seller cannot
fill the order.
See 26 CFR § 151.189. This suggests that
it is the buyer who fills in the seller's name when he sends in the
order. Whether or not that is the case in fact is irrelevant under
the analysis in the text.
[
Footnote 8]
The difference between the availability of order forms under the
Harrison Narcotics Act and the Marihuana Tax Act was explicitly
recognized by Congress when it passed the latter Act.
See Leary
v. United States, 395 U. S. 6,
395 U. S. 21-22
(1969). The regulation restricting registration to those "lawfully
entitled" to deal in narcotic drugs, 26 CFR § 151.24, finds
specific support in the language of the Act.
See 2 U.S.C.
§§ 4705(g), 4721.
[
Footnote 9]
Even if order forms could realistically be secured, Minor's
Fifth Amendment arguments are no more persuasive than Buie's.
See n 3,
supra.
[
Footnote 10]
See Brief for Petitioner 22-23. Convinced that
"[h]eroin has no medical value that is not better served by
legitimate drugs," S.Rep. No.1997, 84th Cong., 2d Sess., 7 (1956),
Congress in 1956 required the surrender of all theretofore lawfully
possessed heroin, to be distributed only as approved by the
Secretary for purposes of scientific research. 18 U.S.C. § 1402.
The Narcotic Drugs Import and Export Act, 35 Stat. 614, as amended,
21 U.S.C. §§ 173, 174, effectively prohibits the importation of
heroin or of opium for the purpose of manufacturing heroin, and
makes it a felony to traffic in drugs knowing them to have been
unlawfully imported. The Narcotics Manufacturing Act of 1960, 74
Stat. 55, 21 U.S.C. § 501
et seq., prohibits the
manufacturing of heroin except as authorized for limited scientific
purposes. Given the resulting absence of original stamped packages
of heroin, 26 U.S.C. § 4704(a) effectively forbids buying, selling,
dispensing, or distributing the drug. Since, for all practical
purposes, there is thus no legitimate dealing in heroin, any
attempt to use an order form to purchase the drug would almost
certainly subject the buyer to prosecution under 26 U.S.C. §
4705(g):
"It shall be unlawful for any person to obtain by means of said
order forms narcotic drugs for any purpose other than the use,
sale, or distribution thereof by him in the conduct of a lawful
business in said drugs or in the legitimate practice of his
profession."
[
Footnote 11]
See U.S. Treasury Department, Bureau of Narcotics,
Traffic in Opium and Other Dangerous Drugs 22, 42 (1968).
[
Footnote 12]
Even if the hypothetical became a reality, it is doubtful that
the incriminating information would get back to the Government via
the buyer, who would himself be guilty of a violation of the
narcotics laws.
See n 10,
supra. See also 26 CFR § 151.181,
which provides that order forms may be filled only by registered
sellers -- a class to which Minor does not belong. It is
significant that, of the nearly 400,000 registered dealers in 1967,
only four were reported during that year for a violation of the
narcotics laws.
See U.S. Treasury Department, Bureau of
Narcotics, Traffic in Opium and Other Dangerous Drugs 22
(1968).
[
Footnote 13]
The dissent suggests that the courts should refuse to enforce §
4705(a) as part of a revenue measure. But these very order form
provisions were upheld long ago as valid revenue laws even though
they operated to prevent large classes of people from obtaining
order forms -- and hence from acquiring drugs -- at all.
United
States v. Doremus, 249 U. S. 86
(1919);
Webb v. United States, 249 U. S.
96 (1919);
see Nigro v. United States,
276 U. S. 332
(1928). A statute does not cease to be a valid tax measure because
it deters the activity taxed, because the revenue obtained is
negligible, or because the activity is otherwise illegal.
See,
e.g., Marchetti v. United States, 390 U. S.
39,
390 U. S. 44
(1968);
United States v. Kahriger, 345 U. S.
22,
345 U. S. 28
(1953);
License Tax
Cases, 5 Wall. 462 (1867).
Even viewing § 4705(a) as little more than a flat ban on certain
sales, it is sustainable under the powers granted Congress in Art.
I, § 8.
See Yee Hem v. United States, 268 U.
S. 178,
268 U. S. 183
(1925).
Brolan v. United States, 236 U.
S. 216,
236 U. S. 222
(1915);
cf. United States v. Sullivan, 332 U.
S. 689 (1948);
United States v. Darby,
312 U. S. 100
(1941).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs,
dissenting in No. 189.
The guilt of petitioner on this record seems plain. Two counts
charge sales of heroin on two different dates in 1967 "not in
pursuance of a written order . . . form." He was found guilty on
each count by the District Court, a trial by jury having been
waived. The basis of his
Page 396 U. S. 99
attack upon his conviction in this Court is that the requirement
of an order form violates his privilege against self-incrimination.
But that is not the end of the matter for me. Mr. Justice Holmes
used to say that one dealing with the Government should turn square
corners.
See Rock Island, A. & L.R. Co. v. United
States, 254 U. S. 141,
254 U. S. 143.
When the present all-powerful, all-pervasive Government moves to
curtail the liberty of the person, it too should turn square
corners.
The statute involved in this case, 26 U.S.C. § 4705(a), was
derived from the Anti-Narcotic Act of December 17, 1914, 38 Stat.
785, commonly called the Harrison Narcotics Act. This Act, as
amended, imposes an occupational tax on registered dealers in
narcotics, 26 U.S.C. §§ 4721-4722, and also imposes a commodity
excise tax on narcotics sold or removed for consumption or sale, 26
U.S.C. § 4701. Under § 4705(a), with certain exceptions not
relevant here, all transfers of narcotics must be made pursuant to
an official order form given to the transferor by the transferee.
The order form can be obtained only by persons properly registered
to deal in narcotics. It was conceded by the Government on oral
argument, however, that
"it is impossible to secure an order form for the purchase of
heroin. . . . The order forms may only be used to purchase a lawful
drug for a lawful purpose. Heroin is an unlawful drug for which
there is no lawful purpose."
The Federal Government does not have plenary power to define and
punish criminal acts. Its power in this regard derives from other
powers specifically delegated to it by the Constitution, as the
Tenth Amendment provides:
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people. "
Page 396 U. S. 100
Section 4705(a) derives from the power to "lay and collect
Taxes." Art. I, § 8. Its constitutionality on this basis was
sustained in
United States v Doremus, 249 U. S.
86 -- a five-to-four decision. It was there said that
the "order form" requirement tended "to keep the traffic aboveboard
and subject to inspection by those authorized to collect the
revenue," and also tended
"to diminish the opportunity of unauthorized persons to obtain
the drugs and sell them clandestinely without paying the tax
imposed by the federal law."
Id. at
249 U. S.
94.
As I view this case, the Government is punishing an individual
for failing to do something that the Government has made it
impossible for him to do -- that is, obtain an order form from the
prospective purchaser prior to making a sale of heroin. Petitioner
did, of course, have the option not to sell the heroin, and, in
that sense, his compliance with the statute was indeed quite
possible. This argument, however, overlooks the fact that the
statute does not simply outlaw all sales of heroin. The critical
interest of the Government is necessarily in the collecting of the
tax imposed by the Act, and it is the order form which provides the
crucial link to this proper constitutional purpose. In
Nigro v.
United States, 276 U. S. 332,
276 U. S. 341,
Chief Justice Taft, speaking for the Court, said:
"In interpreting the Act, we must assume that it is a taxing
measure, for otherwise it would be no law at all. If it is a mere
act for the purpose of regulating and restraining the purchase of
the opiate and other drugs, it is beyond the power of Congress, and
must be regarded as invalid. . . ."
Thus, it is the order form -- not the mere sale -- that
constitutes the heart of the offense for which this petitioner was
convicted. I do not see how the Government can make a crime out of
not receiving an order form,
Page 396 U. S. 101
and, at the same time, allow no order forms for this category of
sales.
Nor is it relevant to suggest, as does the majority opinion,
ante at
396 U. S. 98 n.
13, that a statute imposing a flat ban on sales of heroin might be
sustainable under the Commerce Clause. We are concerned in this
case with what the Congress did, not with what it might have done
or might yet do in the future. It is clear that what Congress did
in § 4705(a) was to enact a taxing measure. And the crime charged
was not selling heroin, but selling it "not in pursuance of a
written order . . . form," as prescribed in § 4705(a).
I would reverse this judgment of conviction.