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Authority of Congress to Regulate 

Wiretapping by the States

Congress has authority under the Commerce Clause to regulate state wiretapping practices by 

prescribing a rule of evidence in state courts, limiting the authority of state officials to tap wires and 

to disclose and use information thereby obtained, prescribing the grounds and findings on which a 

state court may issue wiretap orders, and directing state courts to file reports with federal officials.

February 26, 1962

MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL

One question presented by the Department’s wiretap bill is the constitutional 

authority of Congress to prescribe a rule of evidence in state courts, to limit the 

authority of state officials to tap wires and to disclose and use information thereby 

obtained, to prescribe the grounds and findings on which a state court may issue

wiretap orders, and to direct state courts to file reports with federal officials.

Congress’s power to do all of these things rests primarily on its power to regulate interstate commerce. The nation’s telephone and telegraph systems are 

integrated networks, used for the transmission of messages across state lines.

Congress has the power to preserve the integrity of those systems, and hence to 

prohibit interception of both interstate and intrastate communications. Weiss v. 

United States, 308 U.S. 321 (1939). In so doing, it may prohibit action by state

officers pursuant to state law. Benanti v. United States, 355 U.S. 96 (1957). Since 

Congress can prohibit all interceptions of wire communications, it can also permit 

interception on such terms and conditions as it deems appropriate to protect the 

public interest. In particular, it can adopt appropriate safeguards to protect the 

privacy of users of the telephone and telegraph systems. To aid in enforcing these

limitations, it can remove an incentive to unlawful wiretapping by making 

inadmissible any evidence derived therefrom. And to enable Congress to review 

the effectiveness of its legislation, it can require reports.

Unregulated wiretapping would “impinge severely on the liberty of the individual.” Schwartz v. Texas, 344 U.S. 199, 205 (1952) (Douglas, J., dissenting). The 

fear of such tapping may be a deterrent to free expression. Hence, while the Fourth 

Amendment is inapplicable, Olmstead v. United States, 277 U.S. 438 (1928),

*

unregulated wiretapping by public officials might well raise constitutional issues 

under the Due Process Clauses of the Fifth and Fourteenth Amendments. Hence 

 

* Editor’s Note: Olmstead was subsequently overruled in relevant part by Katz v. United States, 389 

U.S. 347 (1967); see also Berger v. New York, 388 U.S. 41, 64 (1967) (Douglas, J., concurring) (“I join 

the opinion of the Court because at long last it overrules sub silentio Olmstead v. United States, 277 

U.S. 438, and its offspring and brings wiretapping and other electronic eavesdropping fully within the 

purview of the Fourth Amendment.”).
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249

the provisions of the bill restricting state action can also be sustained as an 

exercise of Congress’s power to enforce the Fourteenth Amendment.

Where Congress has regulatory authority under the Commerce Clause, the war 

power, etc., the Supreme Court has frequently sustained limitations on state courts 

and other state officials as “necessary and proper” to carry into execution the 

granted powers. U.S. Const. art. I, § 8, cl. 18. For example:

Ullmann v. United States, 350 U.S. 422 (1956) (immunity from

prosecution in a state court);

Adams v. Maryland, 347 U.S. 179 (1954) (prohibition against use in 

state court of evidence given before congressional committee);

Kalb v. Feuerstein, 308 U.S. 433 (1940) (prohibition against state 

court foreclosure proceeding);

Farmers Educ. & Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959)

(immunity from state libel action); and

Testa v. Katt, 330 U.S. 386 (1947) (requirement that state courts enforce federal act).

In situations in which Congress has required state courts to enforce federal 

rights, it has prescribed state practice in considerable detail. Thus, in the Immigration and Nationality Act of 1952, Congress conferred jurisdiction to naturalize 

persons as citizens of the United States on state courts of record (8 U.S.C. 

§ 1421(a) (Supp. II 1959–60)); prescribed in detail the form of petitions, the 

procedure on hearings, and the form of certificates (8 U.S.C. §§ 1445–1449

(1958)); and required clerks of state courts to file certain reports with the Attorney 

General (8 U.S.C. § 1450 (1958)). Similarly, in numerous cases in state courts 

under the Federal Employers’ Liability Acts, 45 U.S.C. §§ 51 et seq. (1958), and 

the Jones Act, 46 U.S.C. § 688 (1958), the courts have held that various state rules 

of evidence and practice—such as burden of proof of contributory negligence, 

rules of construction of pleadings, right to directed verdict or to judgment 

notwithstanding the verdict, and statutes of limitation—have been superseded by 

the federal act. E.g., Second Employers’ Liability Cases, 223 U.S. 1 (1912); Cent.

Vt. Ry. v. White, 238 U.S. 507 (1915); Bailey v. Cent. Vt. Ry. 319 U.S. 350 (1943);

Brown v. W. Ry. of Ala., 338 U.S. 294 (1949); Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359 (1952); Cox v. Roth, 348 U.S. 207 (1955).

In Schwartz v. Texas, 344 U.S. 199, 203 (1952), the Court reserved decision on 

whether Congress had power to render evidence obtained by illegal wiretapping 

inadmissible in a state court. However, in Benanti v. United States, 355 U.S. 96, 

101 (1957), the rationale of the Schwartz decision was stated to be that Congress 
Supplemental Opinions of the Office of Legal Counsel in Volume 1

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would not be presumed to have thwarted a state rule of evidence “in the absence of 

a clear indication to that effect.”

The Schwartz decision rested in part (344 U.S. at 201) on Wolf v. Colorado, 

338 U.S. 25 (1949), which has since been overruled by Mapp v. Ohio, 367 U.S. 

643 (1961). In holding, in Mapp, that the Fourth and Fourteenth Amendments 

require the exclusion in state courts of evidence derived from an unlawful search, 

the Court relied on the following practical considerations: (1) the exclusionary rule 

is the only effective means to enforce the prohibition against unlawful searches, 

since it removes the incentive to disregard it (367 U.S. at 656); (2) by admitting 

evidence unlawfully seized, the states encourage disobedience to the Federal 

Constitution (id. at 657); (3) the coexistence of two different rules of evidence in 

federal and state courts is productive of confusion and mischief, and an invitation 

to evasion of the law (id. at 657–58). These considerations are essentially applicable to the rule of evidence proposed in section 3 of the present bill. Since the Court 

deemed the exclusionary rule an appropriate means of enforcing the constitutional

prohibition against unlawful seizures, Congress can properly deem it an appropriate means of enforcing the statutory prohibition of unlawful wiretaps.

NICHOLAS deB. KATZENBACH

Assistant Attorney General

Office of Legal Counsel