OP JOHN R. RAFTER 74 Trinity New York, Place Ne Ye March 28th, 1932 Mr. Je Ee Russell, Browning Arms Company, St. Louis, Mo. Dear Mr. Russell: I have of' a recent your letter decision by of March 25th, inquiring as to the the United States Customs Court in sears, Roebuck and Co. ve United the flexible tariff provision of tional. significance the case of States, in which the court held that the present tariff act is wunconstitu- I have not yet seen a copy of the decision to which you refer; but T am familiar with the issue in that case and believe I know the ground of the decision. It is a case in which the President, acting on a report of the Tariff Commission, not only changed the rate of duty provided for in the tariff but also used different language than that appearing in the tariff to describe the merchandise on which the rate of duty was changed. Three other cases of a similar nature arising wnder the Tariff Act of 1922 were decided in the same manner by the customs court, the court in each instance holding that the flexible tariff provision of that act was unconstitutional because the presidential proclamation, instead of changing the rate of duty on all merchandise coming within a given tariff provision, limited the change to only some of such merchandise and consequently used different language than that appearing in the tariff act to describe the merchandise affected by the change in dutye ‘before by The three earlier cases referred to were appealed, briefed the Court of Customs and Patent Appeals are now awaiting that court. The case to which you refer also will undoubtedly and argued decision be ap- pealede So far as the President's right to change the rates of duty is concerned, the Customs Court, the Court of Customs and Patent Appeals and the Supreme Court, long ago held the flexible tariff provision to be constitutional. As indicated above, however, the matter of limiting the change to only some merchandise coming within a given tariff provision and thereby requiring the use of language other than that in the statute to describe such merchandise has not yet been passed on. My courte impression is that that right also will be upheld by the appellate