55

ARTICLE I 

LEGISLATIVE DEPARTMENT 

CONTENTS

Page

Section 1. Legislative Powers ................................................................................................... 63 

Separation of Powers and Checks and Balances ............................................................. 63 

The Theory Elaborated and Implemented ................................................................ 63 

Judicial Enforcement .................................................................................................. 65 

Bicameralism ...................................................................................................................... 70 

Enumerated, Implied, Resulting, and Inherent Powers .................................................. 71 

Delegation of Legislative Power ........................................................................................ 73 

The History of the Doctrine of Nondelegability ........................................................ 73 

The Nature and Scope of Permissible Delegations ................................................... 77 

Filling Up the Details .......................................................................................... 79 

Contingent Legislation ........................................................................................ 80 

Standards .............................................................................................................. 81 

Preemptive Reach of Delegated Authority ......................................................... 85 

Delegations to the President in Areas of Shared Authority .................................... 86 

Foreign Affairs ..................................................................................................... 86 

Military ................................................................................................................. 87 

Delegations to States and to Private Entities ........................................................... 88 

Delegations to States ........................................................................................... 88 

Delegation to Private Entities ............................................................................. 88 

Particular Subjects or Concerns—Closer Scrutiny or Uniform Standard? ............. 90 

Crime and Punishment ............................................................................................... 91 

Delegation and Individual Liberties .......................................................................... 93 

Congressional Investigations ............................................................................................. 93 

Source of the Power to Investigate ............................................................................ 93 

Investigations of Conduct of Executive Department ................................................ 95 

Investigations of Members of Congress ..................................................................... 97 

Investigations in Aid of Legislation ........................................................................... 97 

Purpose ................................................................................................................. 97 

Protection of Witnesses: Pertinency and Related Matters ............................... 100 

Protection of Witnesses: Constitutional Guarantees ......................................... 104 

Sanctions of the Investigatory Power: Contempt ..................................................... 107 

Section 2. The House of Representatives ................................................................................. 109 

Clause 1. Congressional Districting .................................................................................. 109 

Elector Qualifications .................................................................................................. 113 

Clause 2. Qualifications of Members of Congress ............................................................ 114 

When the Qualifications Must Be Possessed ............................................................ 114 

Exclusivity of Constitutional Qualifications ............................................................. 114 

Congressional Additions ............................................................................................. 114 

State Additions ............................................................................................................ 117

Clause 3. Apportionment of Seats in the House .............................................................. 120 

The Census Requirement ........................................................................................... 120 

Clause 4. Vacancies ............................................................................................................ 122 

Clause 5. Officers and Power of Impeachment ................................................................ 122 

56

Section 3. The Senate ................................................................................................................ 123 

Clause 1. Composition and Selection ................................................................................ 123 

Clause 2. Classes of Senators ............................................................................................ 123 

Clause 3. Qualifications ..................................................................................................... 123

Clause 4. The Vice President ............................................................................................. 123 

Clause 5. Officers ................................................................................................................ 124 

Clause 6. Trial of Impeachments ...................................................................................... 124 

Clause 7. Judgments on Impeachment ............................................................................. 124 

Section 4. Elections .................................................................................................................... 124 

Clause 1. Congressional Power to Regulate ..................................................................... 124 

Legislation Protecting Electoral Process ................................................................... 124 

Clause 2. Time of Assembling ........................................................................................... 128 

Section 5. Powers and Duties of the Houses ........................................................................... 128 

Clause 1. Power to Judge Elections .................................................................................. 128 

Clause 2. Rules of Proceedings .......................................................................................... 129 

Clause 3. Duty to Keep a Journal ..................................................................................... 129 

Clause 4. Adjournments ..................................................................................................... 129

Power to Judge Elections ............................................................................................ 129 

‘‘A Quorum to Do Business’’ ....................................................................................... 130 

Rules of Proceedings ................................................................................................... 130 

Powers of the Houses Over Members ........................................................................ 131 

Duty to Keep a Journal .............................................................................................. 132 

Section 6. Rights and Disabilities of Members ........................................................................ 133 

Clause 1. Compensation and Immunities of Members .................................................... 133 

Congressional Pay ....................................................................................................... 133 

Privilege from Arrest .................................................................................................. 134 

Privilege of Speech or Debate ..................................................................................... 134 

Members ............................................................................................................... 134 

Congressional Employees .................................................................................... 139 

Clause 2. Disabilities .......................................................................................................... 141 

Appointment to Executive Office ............................................................................... 141 

Incompatible Offices .................................................................................................... 142 

Section 7. Bills and Resolutions ............................................................................................... 143 

Clause 1. Revenue Bills ..................................................................................................... 143

Clause 2. Approval by the President ................................................................................ 143 

Clause 3. Presentation of Resolutions .............................................................................. 143 

The Legislative Process .............................................................................................. 144 

Revenue Bills ........................................................................................................ 144 

Approval by the President ................................................................................... 145 

The Veto Power .................................................................................................... 145 

Presentation of Resolutions ................................................................................. 148 

The Legislative Veto ..................................................................................... 149 

The Line Item Veto ....................................................................................... 151 

Section 8. Powers of Congress .................................................................................................. 152 

Clause 1. Power to Tax and Spend ................................................................................... 152 

Kinds of Taxes Permitted ........................................................................................... 152 

Decline of the Forbidden Subject Matter Test ................................................... 153 

Federal Taxation of State Interests .................................................................... 154 

Scope of State Immunity from Federal Taxation .............................................. 155 

Uniformity Requirement ..................................................................................... 157 

Purposes of Taxation ................................................................................................... 158 

Regulation by Taxation ........................................................................................ 158 

Extermination by Taxation ................................................................................. 159 

57

Section 8. Powers of Congress—Continued 

Clause 1. Power to Tax and Spend—Continued 

Promotion of Business: Protective Tariff ............................................................ 160 

Spending for the General Welfare ............................................................................. 161 

Scope of the Power ............................................................................................... 161 

Social Security Act Cases ............................................................................. 164 

Conditional Grants-In-Aid ............................................................................ 164 

Earmarked Funds ......................................................................................... 167 

Debts of the United States ........................................................................... 167 

Clause 2. Borrowing Power ................................................................................................ 168 

Clause 3. Commerce Power ............................................................................................... 168 

Power to Regulate Commerce ..................................................................................... 169 

Purposes Served by the Grant ............................................................................ 169 

Definition of Terms .............................................................................................. 169 

Commerce ...................................................................................................... 169 

Among the Several States ............................................................................ 172 

Regulate ......................................................................................................... 173 

Necessary and Proper Clause ...................................................................... 174 

Federalism Limits on Exercise of Commerce Power .................................. 175 

Illegal Commerce .......................................................................................... 175 

Interstate versus Foreign Commerce ......................................................................... 176 

Instruments of Commerce .......................................................................................... 177 

Congressional Regulation of Waterways ................................................................... 179 

Navigation ............................................................................................................ 179 

Hydroelectric Power; Flood Control .................................................................... 182 

Congressional Regulation of Land Transportation ................................................... 184 

Federal Stimulation of Land Transportation ..................................................... 184 

Federal Regulation of Land Transportation ...................................................... 184 

Federal Regulation of Intrastate Rates .............................................................. 187 

Federal Protection of Labor in Interstate Rail Transportation ........................ 187 

Regulation of Other Agents of Carriage and Communications ........................ 188 

Congressional Regulation of Commerce as Traffic ................................................... 190 

The Sherman Act: Sugar Trust Case ................................................................. 190 

Sherman Act Revived .......................................................................................... 191 

The ‘‘Current of Commerce’’ Concept: The Swift Case ...................................... 192 

The Danbury Hatters Case .................................................................................. 193 

Stockyards and Grain Futures Acts ................................................................... 194 

Securities and Exchange Commission ................................................................ 195 

Congressional Regulation of Production and Industrial Relations: 

Antidepression Legislation ...................................................................................... 196 

National Industrial Recovery Act ....................................................................... 196 

Agricultural Adjustment Act ............................................................................... 197 

Bituminous Coal Conservation Act ..................................................................... 197 

Railroad Retirement Act ...................................................................................... 198 

National Labor Relations Act .............................................................................. 199 

Fair Labor Standards Act .................................................................................... 201 

Agricultural Marketing Agreement Act ............................................................. 203 

Acts of Congress Prohibiting Commerce ................................................................... 205 

Foreign Commerce: Jefferson’s Embargo ........................................................... 205 

Foreign Commerce: Protective Tariffs ................................................................ 206 

Foreign Commerce: Banned Articles .................................................................. 207 

Interstate Commerce: Power to Prohibit Questioned ........................................ 208 

Interstate Commerce: National Prohibitions and State Police Power ............. 208 

58

Section 8. Powers of Congress—Continued 

Clause 3. Commerce Power—Continued 

The Lottery Case .................................................................................................. 209 

The Darby Case .................................................................................................... 211 

The Commerce Clause as a Source of National Police Power ................................. 212 

Is There an Intrastate Barrier to Congress’ Commerce Power? ...................... 212 

Civil Rights ........................................................................................................... 218 

Criminal Law ........................................................................................................ 220 

The Commerce Clause as a Restraint on State Powers ........................................... 221 

Doctrinal Background .......................................................................................... 221 

The State Proprietary Activity Exception .......................................................... 227 

Congressional Authorization of Impermissible State Action ............................ 228 

State Taxation and Regulation: The Old Law .......................................................... 231 

General Considerations ....................................................................................... 232 

Taxation ................................................................................................................ 232 

Regulation ............................................................................................................. 235 

State Taxation and Regulation: The Modern Law ................................................... 239 

General Considerations ....................................................................................... 239 

Taxation ................................................................................................................ 239 

Regulation ............................................................................................................. 246 

Foreign Commerce and State Powers ........................................................................ 254 

Concurrent Federal and State Jurisdiction ............................................................... 257 

The General Issue: Preemption .......................................................................... 257 

Preemption Standards .................................................................................. 259 

The Standards Applied ................................................................................. 261 

Federal Versus State Labor Laws ............................................................... 271 

Commerce With Indian Tribes ................................................................................... 278 

Clause 4. Naturalization and Bankruptcies ..................................................................... 282 

Naturalization and Citizenship .................................................................................. 283 

Nature and Scope of Congress’ Power ................................................................ 283 

Categories of Citizens: Birth and Naturalization .............................................. 284 

The Naturalization of Aliens ............................................................................... 286 

Rights of Naturalized Persons ............................................................................ 287 

Expatriation: Loss of Citizenship ........................................................................ 290 

Aliens ............................................................................................................................ 294 

The Power of Congress to Exclude Aliens .......................................................... 294 

Deportation ........................................................................................................... 298 

Bankruptcy .................................................................................................................. 299

Persons Who May Be Released from Debt ......................................................... 299 

Liberalization of Relief Granted and Expansion of the Rights of the Trustee 300 

Constitutional Limitations on the Bankruptcy Power ...................................... 301 

Constitutional Status of State Insolvency Laws: Preemption .......................... 302 

Clauses 5 and 6. Money ..................................................................................................... 305

Fiscal and Monetary Powers of Congress .................................................................. 305 

Coinage, Weights, and Measures ........................................................................ 305 

Punishment of Counterfeiting ............................................................................. 306 

Borrowing Power versus Fiscal Power ............................................................... 306 

Clause 7. Post Office .......................................................................................................... 307 

Postal Power ................................................................................................................ 307

‘‘Establish’’ ............................................................................................................ 307 

Power to Protect the Mails .................................................................................. 308 

Power to Prevent Harmful Use of the Postal Facilities .................................... 309 

Exclusive Power as an Adjunct to Other Powers .............................................. 310 

59

Section 8. Powers of Congress—Continued 

Clause 7. Post Office—Continued 

State Regulations Affecting the Mails ................................................................ 311 

Clause 8. Copyrights and Patents ..................................................................................... 312 

Copyrights and Patents .............................................................................................. 312 

Scope of the Power ............................................................................................... 312 

Patentable Discoveries ......................................................................................... 313 

Procedure in Issuing Patents .............................................................................. 315 

Nature and Scope of the Right Secured ............................................................. 316 

Power of Congress over Patents and Copyrights ............................................... 317 

State Power Affecting Patents and Copyrights ................................................. 318 

Trade-Marks and Advertisements ...................................................................... 320 

Clause 9. Creation of Courts ............................................................................................. 321 

Clause 10. Maritime Crimes .............................................................................................. 321 

Piracies, Felonies, and Offenses Against the Law of Nations ................................. 321 

Origin of the Clause ............................................................................................. 321 

Definition of Offenses .......................................................................................... 322 

Extraterritorial Reach of the Power ................................................................... 323 

Clauses 11, 12, 13, and 14. War; Military Establishment .............................................. 323 

The War Power ............................................................................................................ 324 

Source and Scope ................................................................................................. 324 

Three Theories .............................................................................................. 324 

An Inherent Power ........................................................................................ 325 

A Complexus of Granted Powers ................................................................. 325 

Declaration of War ............................................................................................... 326 

The Power to Raise and Maintain Armed Forces ..................................................... 329 

Purpose of Specific Grants .................................................................................. 329 

Time Limit on Appropriations for the Army ...................................................... 330 

Conscription .......................................................................................................... 330 

Care of the Armed Forces .................................................................................... 332 

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and Dependents ............................................................................................................ 334 

Servicemen .................................................................................................... 334 

Civilians and Dependents ............................................................................ 337 

War Legislation ........................................................................................................... 338 

War Powers in Peacetime .................................................................................... 338 

Delegation of Legislative Power in Wartime ..................................................... 340 

Constitutional Rights in Wartime .............................................................................. 342 

Constitution and the Advance of the Flag ......................................................... 342 

Theater of Military Operations .................................................................... 342 

Enemy Country ............................................................................................. 342 

Enemy Property ............................................................................................ 343 

Prizes of War ................................................................................................. 344 

The Constitution at Home in Wartime .............................................................. 344 

Personal Liberty ............................................................................................ 344 

Enemy Aliens ................................................................................................ 346 

Eminent Domain ........................................................................................... 347 

Rent and Price Controls ............................................................................... 348 

Clauses 15 and 16. The Militia ......................................................................................... 349 

The Militia Clauses ..................................................................................................... 349 

Calling Out the Militia ........................................................................................ 349 

Regulation of the Militia ..................................................................................... 350 

Clause 17. District of Columbia; Federal Property .......................................................... 351 

60

Section 8. Powers of Congress—Continued 

Clause 17. District of Columbia; Federal Property—Continued 

Seat of the Government .............................................................................................. 351 

Authority Over Places Purchased .............................................................................. 355 

‘‘Places’’ ................................................................................................................. 355

Duration of Federal Jurisdiction ......................................................................... 356 

Reservation of Jurisdiction by States ................................................................. 357 

Clause 18. Necessary and Proper Clause ......................................................................... 357 

Necessary and Proper Clause ..................................................................................... 357 

Scope of Incidental Powers .................................................................................. 357 

Operation of Clause ............................................................................................. 358 

Definition of Punishment and Crimes ................................................................ 359 

Chartering of Banks ............................................................................................ 359 

Currency Regulations .......................................................................................... 360 

Power to Charter Corporations ........................................................................... 360 

Courts and Judicial Proceedings ......................................................................... 361 

Special Acts Concerning Claims ......................................................................... 361 

Maritime Law ....................................................................................................... 362 

Section 9. Powers Denied to Congress ..................................................................................... 362 

Clause 1. Importation of Slaves ........................................................................................ 362 

In General .................................................................................................................... 362

Clause 2. Habeas Corpus Suspension ............................................................................... 363 

In General .................................................................................................................... 363

Clause 3. Bills of Attainder and Ex Post Facto Laws ...................................................... 365 

Bills of Attainder ......................................................................................................... 365

Ex Post Facto Laws ..................................................................................................... 369 

Definition .............................................................................................................. 369 

What Constitutes Punishment ............................................................................ 369 

Change in Place or Mode of Trial ....................................................................... 370 

Clause 4. Taxes ................................................................................................................... 371 

Direct Taxes ................................................................................................................. 371

The Hylton Case ................................................................................................... 371 

From the Hylton to the Pollock Case .................................................................. 372 

Restriction of the Pollock Decision ..................................................................... 373 

Miscellaneous ....................................................................................................... 374 

Clause 5. Duties on Exports from States ......................................................................... 375 

Taxes on Exports ......................................................................................................... 375 

Stamp Taxes ......................................................................................................... 376 

Clause 6. Preference to Ports ............................................................................................ 377 

The ‘‘No Preference’’ Clause ....................................................................................... 377 

Clause 7. Appropriations and Accounting of Public Money ............................................ 378 

Appropriations ............................................................................................................. 378

Payment of Claims ...................................................................................................... 378 

Clause 8. Titles of Nobility; Presents ............................................................................... 379 

In General .................................................................................................................... 379

Section 10. Powers Denied to the States ................................................................................. 379 

Clause 1. Making Treaties, Coining Money, Ex Post Facto Laws, Impairing Contracts ................................................................................................................................ 379 

Treaties, Alliances, or Confederations ....................................................................... 380 

Bills of Credit .............................................................................................................. 380

Legal Tender ................................................................................................................ 381

Bills of Attainder ......................................................................................................... 381

Ex Post Facto Laws ..................................................................................................... 382 

61

Section 10. Powers Denied to the States—Continued 

Clause 1. Making Treaties, Coining Money, Ex Post Facto Laws, Impairing Contracts—Continued

Scope of the Provision .......................................................................................... 382 

Denial of Future Privileges to Past Offenders ................................................... 383 

Changes in Punishment ...................................................................................... 383 

Changes in Procedure .......................................................................................... 385 

Obligation of Contracts ............................................................................................... 386 

‘‘Law’’ Defined ....................................................................................................... 386 

Status of Judicial Decisions ................................................................................ 387 

‘‘Obligation’’ Defined ............................................................................................ 389 

‘‘Impair’’ Defined .................................................................................................. 390 

Vested Rights Not Included ................................................................................ 390 

Public Grants That Are Not ‘‘Contracts’’ ............................................................ 391 

Tax Exemptions: When Not ‘‘Contracts’’ ............................................................ 393 

‘‘Contracts’’ Include Public Contracts and Corporate Charters ........................ 394 

Corporate Charters: Different Ways of Regarding ............................................ 397 

Reservation of Right to Alter or Repeal Corporate Charters ........................... 399 

Corporation Subject to the Law and Police Power ............................................ 401 

Strict Construction of Charters, Tax Exemptions ............................................. 402 

Strict Construction and the Police Power .......................................................... 404 

Doctrine of Inalienability as Applied to Eminent Domain, Taxing, and Police Powers ........................................................................................................ 405 

Private Contracts ................................................................................................. 408 

Remedy a Part of the Private Obligation ........................................................... 410 

Private Contracts and the Police Power ............................................................. 413 

Evaluation of the Clause Today .......................................................................... 415 

Clause 2. Duties on Exports and Imports ........................................................................ 419 

Duties on Exports and Imports .................................................................................. 419 

Scope ..................................................................................................................... 419 

Privilege Taxes ..................................................................................................... 420 

Property Taxes ..................................................................................................... 421 

Inspection Laws .................................................................................................... 422 

Clause 3. Tonnage Duties, Keeping Troops, Making Compacts, War ............................ 422 

Tonnage Duties ............................................................................................................ 423 

Keeping Troops ............................................................................................................ 423 

Interstate Compacts .................................................................................................... 424 

Background of Clause .......................................................................................... 424 

Subject Matter of Interstate Compacts .............................................................. 425 

Consent of Congress ............................................................................................. 426 

Grants of Franchise to Corporations by Two States ......................................... 426 

Legal Effects of Interstate Compacts ................................................................. 427 

63

1 Among the best historical treatments are M.Vile, Constitutionalism and the 

Separation of Powers (1967), and W. Gwyn, The Meaning of the Separation of Powers (1965). 2Thus the Constitution of Virginia of 1776 provided: ‘‘The legislative, executive, 

and judiciary department shall be separate and distinct, so that neither exercise the 

powers properly belonging to the other; nor shall any person exercise the powers of 

more than one of them, at the same time[.]’’ Reprinted in 10 SOURCES AND DOCUMENTS OF UNITED STATES CONSTITUTIONS 52 (W. S. Windler ed., 1979). See also 5

id. at 96, Art. XXX of Part First, Massachusetts Constitution of 1780: ‘‘In the government of this commonwealth, the legislative department shall never exercise the 

executive and judicial powers, or either of them; the executive shall never exercise 

the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be 

a government of laws, and not of men.’’ 

LEGISLATIVE DEPARTMENT 

ARTICLE I 

SECTION 1 All legislative Powers herein granted shall be 

vested in a Congress of the United States, which shall consist 

of a Senate and House of Representatives. 

SEPARATION OF POWERS AND CHECKS AND 

BALANCES

The Constitution nowhere contains an express injunction to 

preserve the boundaries of the three broad powers it grants, nor 

does it expressly enjoin maintenance of a system of checks and balances. Yet, it does grant to three separate branches the powers to 

legislate, to execute, and to adjudicate, and it provides throughout 

the document the means by which each of the branches could resist 

the blandishments and incursions of the others. The Framers drew 

up our basic charter against a background rich in the theorizing of 

scholars and statesmen regarding the proper ordering in a system 

of government of conferring sufficient power to govern while withholding the ability to abridge the liberties of the governed. 1

The Theory Elaborated and Implemented 

When the colonies separated from Great Britain following the 

Revolution, the framers of their constitutions were imbued with the 

profound tradition of separation of powers, and they freely and expressly embodied the principle in their charters. 2 But the theory 

of checks and balances was not favored because it was drawn from 

Great Britain, and, as a consequence, violations of the separationof-powers doctrine by the legislatures of the States were commonVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00001 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
64 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

3 ‘‘In republican government the legislative authority, necessarily, predominates.’’ THE FEDERALIST, No. 51 (J. Cooke ed. 1961), 350 (Madison). See also id.

at No. 48, 332–334. This theme continues today to influence the Court’s evaluation 

of congressional initiatives. E.g., Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 273–74, 277 (1991). But

compare id. at 286 n. 3 (Justice White dissenting). 4The intellectual history through the state period and the Convention proceedings is detailed in G. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776– 

1787 (1969) (see index entries under ‘‘separation of powers’’). 5THE FEDERALIST Nos. 47–51 (J. Cooke ed. 1961), 323–353 (Madison). 6 Id. at No. 47, 325–326 (emphasis in original). 

7 Id. at Nos. 47–49, 325–343. 

place events prior to the convening of the Convention. 3 Theory as 

much as experience guided the Framers in the summer of 1787. 4

The doctrine of separation of powers, as implemented in drafting the Constitution, was based on several principles generally 

held: the separation of government into three branches, legislative, 

executive, and judicial; the conception that each branch performs 

unique and identifiable functions that are appropriate to each; and 

the limitation of the personnel of each branch to that branch, so 

that no one person or group should be able to serve in more than 

one branch simultaneously. To a great extent, the Constitution effectuated these principles, but critics objected to what they regarded as a curious intermixture of functions, to, for example, the 

veto power of the President over legislation and to the role of the 

Senate in the appointment of executive officers and judges and in 

the treaty-making process. It was to these objections that Madison 

turned in a powerful series of essays. 5

Madison recurred to ‘‘the celebrated’’ Montesquieu, the ‘‘oracle 

who is always consulted,’’ to disprove the contentions of the critics. 

‘‘[T]his essential precaution in favor of liberty,’’ that is, the separation of the three great functions of government, had been achieved, 

but the doctrine did not demand rigid separation. Montesquieu and 

other theorists ‘‘did not mean that these departments ought to have 

no partial agency in, or control over, the acts of each other,’’ but 

rather liberty was endangered ‘‘where the whole power of one department is exercised by the same hands which possess the 

whole power of another department.’’ 6 That the doctrine did not demand absolute separation provided the basis for preservation of 

separation of powers in action. Neither sharply drawn demarcations of institutional boundaries nor appeals to the electorate were 

sufficient. 7 Instead, the security against concentration of powers 

‘‘consists in giving to those who administer each department the 

necessary constitutional means and personal motives to resist encroachments of the others.’’ Thus, ‘‘[a]mbition must be made to 

ART. I—LEGISLATIVE DEPARTMENT 65

Sec. 1—The Congress Legislative Powers 

8 Id. at No. 51, 349. 

9 ‘‘While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but 

reciprocity.’’ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) 

(Justice Jackson concurring). 10 E.g., Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. 

(10 Wheat.) 1, 42 (1825). 11See Mistretta v. United States, 488 U.S. 361, 415–416 (1989) (Justice Scalia 

dissenting). 12The principal example is Myers v. United States, 272 U.S. 52 (1926), written 

by Chief Justice Taft, himself a former President. The breadth of the holding was 

modified in considerable degree in Humphrey’s Executor v. United States, 295 U.S. 

602 (1935), and the premise of the decision itself was recast and largely softened 

in Morrison v. Olson, 487 U.S. 654 (1988). 

counteract ambition. The interest of the man must be connected 

with the constitutional rights of the place.’’ 8

Institutional devices to achieve these principles pervade the 

Constitution. Bicameralism reduces legislative predominance, while 

the presidential veto gives to the Chief Magistrate a means of defending himself and of preventing congressional overreaching. The 

Senate’s role in appointments and treaties checks the President. 

The courts are assured independence through good behavior tenure 

and security of compensation, and the judges through judicial review will check the other two branches. The impeachment power 

gives to Congress the authority to root out corruption and abuse of 

power in the other two branches. And so on. 

Judicial Enforcement 

Throughout much of our history, the ‘‘political branches’’ have 

contended between themselves in application of the separation-ofpowers doctrine. Many notable political disputes turned on questions involving the doctrine. Inasmuch as the doctrines of separation of powers and of checks and balances require both separation 

and intermixture, 9 the role of the Supreme Court in policing the 

maintenance of the two doctrines is problematic at best. And, indeed, it is only in the last two decades that cases involving the doctrines have regularly been decided by the Court. Previously, informed understandings of the principles have underlain judicial 

construction of particular clauses or guided formulation of constitutional common law. That is, the nondelegation doctrine was from 

the beginning suffused with a separation-of-powers premise, 10 and

the effective demise of the doctrine as a judicially-enforceable construct reflects the Court’s inability to give any meaningful content 

to it. 11 On the other hand, periodically, the Court has essayed a 

strong separation position on behalf of the President, sometimes 

with lack of success, 12 sometimes successfully. 

66 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

13 Beginning with Buckley v. Valeo, 424 U.S. 1, 109–43 (1976), a relatively easy 

case, in which Congress had attempted to reserve to itself the power to appoint certain officers charged with enforcement of a law. 14 Bowsher v. Synar, 478 U.S. 714 (1986). 15 INS v. Chadha, 462 U.S. 919 (1983). 16 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 17Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States, 

488 U.S. 361 (1989). 18The tenor of a later case, Metropolitan Washington Airports Auth. v. Citizens 

for the Abatement of Airport Noise, 501 U.S. 252 (1991), was decidedly formalistic, 

but it involved a factual situation and a doctrinal predicate easily rationalized by 

the principles of Morrison and Mistretta, aggrandizement of its powers by Congress. 

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989), reasserted the fundamental 

status of Marathon, again in a bankruptcy courts context, although the issue was 

Following a lengthy period of relative inattention to separation 

of powers issues, the Court since 1976 13 has recurred to the doctrine in numerous cases, and the result has been a substantial curtailing of congressional discretion to structure the National Government. Thus, the Court has interposed constitutional barriers to a 

congressional scheme to provide for a relatively automatic deficitreduction process because of the critical involvement of an officer 

with significant legislative ties, 14 to the practice set out in more 

than 200 congressional enactments establishing a veto of executive 

actions, 15 and to the vesting of broad judicial powers to handle 

bankruptcy cases in officers not possessing security of tenure and 

salary. 16 On the other hand, the highly-debated establishment by 

Congress of a process by which independent special prosecutors 

could be established to investigate and prosecute cases of alleged 

corruption in the Executive Branch was sustained by the Court in 

a opinion that may presage a judicial approach in separation of 

powers cases more accepting of some blending of functions at the 

federal level. 17

Important as the results were in this series of cases, the development of two separate and inconsistent doctrinal approaches to 

separation of powers issues occasioned the greatest amount of commentary. The existence of the two approaches, which could apparently be employed in the discretion of the Justices, made difficult 

the prediction of the outcomes of differences over proposals and alternatives in governmental policy. Significantly, however, it appeared that the Court most often used a more strict analysis in 

cases in which infringements of executive powers were alleged and 

a less strict analysis when the powers of the other two Branches 

were concerned. The special prosecutor decision, followed by the decision sustaining the Sentencing Commission, may signal the adoption of a single analysis, the less strict analysis, for all separation 

of power cases or it may turn out to be but an exception to the 

Court’s dual doctrinal approach. 18

ART. I—LEGISLATIVE DEPARTMENT 67

Sec. 1—The Congress Legislative Powers 

the right to a jury trial under the Seventh Amendment rather than strictly speaking 

a separation-of-powers question. Freytag v. CIR, 501 U.S. 868 (1991), pursued a 

straightforward appointments-clause analysis, informed by a separation-of-powers 

analysis but not governed by it. Finally, in Public Citizen v. U. S. Department of 

Justice, 491 U.S. 440, 467 (1989) (concurring), Justice Kennedy would have followed 

the formalist approach, but he explicitly grounded it on the distinction between an 

express constitutional vesting of power as against implicit vestings. Separately, the 

Court has for some time viewed the standing requirement for access to judicial review as reflecting a separation-of-powers component—confining the courts to their 

proper sphere— Allen v. Wright, 468 U.S. 737, 752 (1984), but that view seemed 

largely superfluous to the conceptualization of standing rules. However, in Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 577 (1992), the Court imported the take-care 

clause, obligating the President to see to the faithful execution of the laws, into 

standing analysis, creating a substantial barrier to congressional decisions to provide for judicial review of executive actions. It is not at all clear, however, that the 

effort, by Justice Scalia, enjoys the support of a majority of the Court. Id. at 579-81 

(Justices Kennedy and Souter concurring). The cited cases do seem to demonstrate 

that a strongly formalistic wing of the Court does continue to exist. 19 ‘‘The hydraulic pressure inherent within each of the separate Branches to exceed the outer limits of its power . . . must be resisted. Although not ‘hermetically’ 

sealed from one another, the powers delegated to the three Branches are functionally identifiable.’’ INS v. Chadha, 462 U.S. 919, 951 (1983). See id. at 944–51; Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 64–66 (1982) 

(plurality opinion); Bowsher v. Synar, 478 U.S. 714, 721–727 (1986). 20 CFTC v. Schor, 478 U.S. 833, 850–51, 856–57 (1986); Thomas v. Union Carbide Agric. Products Co., 473 U.S. 568, 587, 589–93 (1985). The Court had first formulated this analysis in cases challenging alleged infringments on presidential powers, United States v. Nixon, 418 U.S. 683, 713 (1974); Nixon v. Administrator of 

General Services, 433 U.S. 425, 442–43 (1977), but it had subsequently turned to 

the more strict test. Schor and Thomas both involved provisions challenged as infringing judicial powers. 

While the two doctrines have been variously characterized, the 

names generally attached to them have been ‘‘formalist,’’ applied to 

the more strict line, and ‘‘functional,’’ applied to the less strict. The 

formalist approach emphasizes the necessity to maintain three distinct branches of government through the drawing of bright lines 

demarcating the three branches from each other determined by the 

differences among legislating, executing, and adjudicating. 19 The

functional approach emphasizes the core functions of each branch 

and asks whether the challenged action threatens the essential attributes of the legislative, executive, or judicial function or functions. Under this approach, there is considerable flexibility in the 

moving branch, usually Congress acting to make structural or institutional change, if there is little significant risk of impairment 

of a core function or in the case of such a risk if there is a compelling reason for the action. 20

Chadha used the formalist approach to invalidate the legislative veto device by which Congress could set aside a determination 

by the Attorney General, pursuant to a delegation from Congress, 

to suspend deportation of an alien. Central to the decision were two 

conceptual premises. First, the action Congress had taken was legVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00005 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
68 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

21 INS v. Chadha, 462 U.S. 919, 952 (1983). 22 Id. at 954–955. 23 Bowsher v. Synar, 478 U.S. 714, 726–727, 733–734 (1986). 24While the agency in Schor was an independent regulatory commission and the 

bankruptcy court in Northern Pipeline was either an Article I court or an adjunct 

to an Article III court, the characterization of the entity is irrelevant and, in fact, 

the Court made nothing of the difference. The issue in either case was whether the 

judicial power of the United States could be conferred on an entity not an Article 

III court. 25 CFTC v. Schor, 478 U.S. 833, 848 (1986) (quoting Thomas v. Union Carbide 

Agric. Products Co., 473 U.S. 568, 587 (1985)). 26Schor, 478 U.S. at 851. 27 478 U.S. at 856. 

islative, because it had the purpose and effect of altering the legal 

rights, duties, and relations of persons outside the Legislative 

Branch, and thus Congress had to comply with the bicameralism 

and presentment requirements of the Constitution. 21 Second, the 

Attorney General was performing an executive function in implementing the delegation from Congress, and the legislative veto was 

an impermissible interference in the execution of the laws. Congress could act only by legislating, by changing the terms of its delegation. 22 In Bowsher, the Court held that Congress could not vest 

even part of the execution of the laws in an officer, the Comptroller 

General, who was subject to removal by Congress because this 

would enable Congress to play a role in the execution of the laws. 

Congress could act only by passing other laws. 23

On the same day that Bowsher was decided through a formalist analysis, the Court in Schor utilized the less strict, functional approach in resolving a challenge to the power of a regulatory agency to adjudicate as part of a larger canvas a state common-law issue, the very kind of issue that Northern Pipeline, in a 

formalist plurality opinion with a more limited concurrence, had 

denied to a non-Article III bankruptcy court. 24 Sustaining the 

agency’s power, the Court emphasized ‘‘the principle that ‘practical 

attention to substance rather than doctrinaire reliance on formal 

categories should inform application of Article III.’’’ 25 It held that 

in evaluating such a separation of powers challenge, the Court had 

to consider the extent to which the ‘‘essential attributes of judicial 

power’’ were reserved to Article III courts and conversely the extent 

to which the non-Article III entity exercised the jurisdiction and 

powers normally vested only in Article III courts, the origin and 

importance of the rights to be adjudicated, and the concerns that 

drove Congress to depart from the requirements of Article III. 26

Bowsher, the Court said, was not contrary, because ‘‘[u]nlike Bowsher, this case raises no question of the aggrandizement of congressional power at the expense of a coordinate branch.’’ 27 The test was 

a balancing one, whether Congress had impermissibly undermined 

ART. I—LEGISLATIVE DEPARTMENT 69

Sec. 1—The Congress Legislative Powers 

28To be sure, the appointments clause did specifically provide that Congress 

could vest in the courts the power to appoint inferior officers, Morrison v. Olson, 

487 U.S. 654, 670–677 (1988), making possible the contention that, unlike 

Chadha and Bowsher, Morrison is a textual commitment case. But the Court’s separate evaluation of the separation of powers issue does not appear to turn on that 

distinction. Id. at 685–96. Nevertheless, the existence of this possible distinction 

should make one wary about lightly reading Morrison as a rejection of formalism 

when executive powers are litigated. 29 487 U.S. at 695 (quoting, respectively, Schor, 478 U.S. at 856, and Nixon v. 

Administrator of General Services, 433 U.S. at 443). 

the role of another branch without appreciable expansion of its own 

power.

While the Court, in applying one or the other analysis in separation of powers cases, had never indicated its standards for choosing one analysis over the other, beyond inferences that the formalist approach was proper when the Constitution fairly clearly 

committed a function or duty to a particular branch and the functional approach was proper when the constitutional text was indeterminate and a determination must be made on the basis of the 

likelihood of impairment of the essential powers of a branch, the 

overall results had been a strenuous protection of executive powers 

and a concomitant relaxed view of the possible incursions into the 

powers of the other branches. It was thus a surprise, then, when 

in the independent counsel case, the Court, again without stating 

why it chose that analysis, utilized the functional standard to sustain the creation of the independent counsel. 28 The independentcounsel statute, the Court emphasized, was not an attempt by Congress to increase its own power at the expense of the executive nor 

did it constitute a judicial usurpation of executive power. Moreover, 

the Court stated, the law did not ‘‘impermissibly undermine’’ the 

powers of the Executive Branch nor did it ‘‘disrupt the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.’’ 29 Acknowledging that the statute undeniably reduced executive control over what it had previously identified as a core executive function, the execution of the laws through criminal prosecution , through its appointment provisions and its assurance of independence by limitation of removal to a ‘‘good cause’’ standard, the 

Court nonetheless noticed the circumscribed nature of the reduction, the discretion of the Attorney General to initiate appointment, 

the limited jurisdiction of the counsel, and the power of the Attorney General to ensure that the laws are faithfully executed by the 

counsel. This balancing, the Court thought, left the President with 

sufficient control to ensure that he is able to perform his constitutionally assigned functions. A notably more pragmatic, functional 

analysis suffused the opinion of the Court when it upheld the conVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00007 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
70 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

30Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court did 

acknowledge reservations with respect to the placement of the Commission as an 

independent entity in the judicial branch. Id. at 384, 397, 407–08. As in Morrison, Justice Scalia was the lone dissenter, arguing for a fairly rigorous application 

of separation-of-powers principles. Id. at 413, 422–27. 31 488 U.S. at 382. 

stitutionality of the Sentencing Commission. 30 Charged with promulgating guidelines binding on federal judges in sentencing convicted offenders, the seven-member Commission, three members of 

which had to be Article III judges, was made an independent entity 

in the judicial branch. The President appointed all seven members, 

the judges from a list compiled by the Judicial Conference, and he 

could remove from the Commission any member for cause. According to the Court, its separation-of-powers jurisprudence is always 

animated by the concerns of encroachment and aggrandizement. 

‘‘Accordingly, we have not hesitated to strike down provisions of 

law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the 

authority and independence of one or another coordinate 

Branch.’’ 31 Thus, to each of the discrete questions, the placement 

of the Commission, the appointment of the members, especially the 

service of federal judges, and the removal power, the Court carefully analyzed whether one branch had been given power it could 

not exercise or had enlarged its powers impermissibly and whether 

any branch would have its institutional integrity threatened by the 

structural arrangement. 

Although it is possible, even likely, that Morrison and

Mistretta represent a decision by the Court to adopt for all separation-of-powers cases the functional analysis, the history of adjudication since 1976 and the shift of approach between Myers and Humphrey’s Executor suggest caution. Recurrences of the formalist approach have been noted. Additional decisions must be forthcoming 

before it can be decided that the Court has finally settled on the 

functional approach. 

BICAMERALISM

By providing for a National Legislature of two Houses, the 

Framers, deliberately or adventitiously, served several functions. 

Examples of both unicameralism and bicameralism abounded. 

Some of the ancient republics, to which the Framers often repaired 

for the learning of experience, had two-house legislatures, and the 

Parliament of Great Britain was based in two social orders, the hereditary aristocracy represented in the House of Lords and the 

freeholders of the land represented in the House of Commons. A 

number of state legislatures, following the Revolution, were created 

ART. I—LEGISLATIVE DEPARTMENT 71

Sec. 1—The Congress Legislative Powers 

32THE FEDERALIST, No. 39 (J. Cooke ed. 1961), 250–257 (Madison). 33 Id. at No. 51, 347–353 (Madison). The assurance of the safeguard is built into 

the presentment clause. Article I, § 7, cl. 2; and see id. at cl. 3. The structure is 

not often the subject of case law, but it was a foundational matter in INS v. Chadha, 

462 U.S. 919, 944–951 (1983). 34 17 U.S. (4 Wheat.) 316, 405 (1819). 

unicameral, and the Continental Congress, limited in power as it 

was, consisted of one house. 

From the beginning in the Convention, in the Virginia Plan, a 

two-house Congress was called for. The Great Compromise, one of 

the critical decisions leading to a successful completion of the Convention, resolved the dispute about the national legislature by providing for a House of Representatives apportioned on population 

and a Senate in which the States were equally represented. The 

first function served, thus, was federalism. 32 Coextensively important, however, was the separation-of-powers principle served. The 

legislative power, the Framers both knew and feared, was predominant in a society dependent upon the suffrage of the people, and 

it was important to have a precaution against the triumph of transient majorities. Hence, the Constitution’s requirement that before 

lawmaking could be carried out bills must be deliberated in two 

Houses, their Members beholden to different constituencies, was in 

pursuit of this observation from experience. 33

Events since 1787, of course, have altered both the separationof-powers and the federalism bases of bicameralism, in particular 

the adoption of the Seventeenth Amendment resulting in the popular election of Senators, so that the differences between the two 

Chambers are today less pronounced. 

ENUMERATED, IMPLIED, RESULTING, AND INHERENT 

POWERS

Two important doctrines of constitutional law—that the Federal Government is one of enumerated powers and that legislative 

powers may not be delegated—are derived in part from this section. The classical statement of the former is that by Chief Justice 

Marshall in McCulloch v. Maryland: ‘‘This government is acknowledged by all, to be one of enumerated powers. The principle, that 

it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which 

its enlightened friends, while it was depending before the people, 

found it necessary to urge; that principle is now universally admitted.’’ 34 That, however, ‘‘the executive power’’ is not confined to 

those items expressly enumerated in Article II was asserted early 

in the history of the Constitution by Madison and Hamilton alike 

72 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

35See discussion under Article II, § 1, cl. 1, Executive Power: Theory of the Presidential Office, infra. 36 206 U.S. 46, 82 (1907). 37 17 U.S. (4 Wheat.) at 407. 38 17 U.S. at 411. 39 17 U.S. at 421. 40 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES

1256 (1833). See also id. at 1286 and 1330. 41 26 U.S. (1 Pet.) 511 (1828). 42 26 U.S. at 542. 43 26 U.S. at 543. 44Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–619 (1842). 

and is found in decisions of the Court; 35 a similar latitudinarian 

conception of ‘‘the judicial power of the United States’’ was voiced 

in Justice Brewer’s opinion for the Court in Kansas v. Colorado. 36

But even when confined to ‘‘the legislative powers herein granted,’’ 

the doctrine is severely strained by Marshall’s conception of some 

of these as set forth in his McCulloch v. Maryland opinion. He asserts that ‘‘the sword and the purse, all the external relations and 

no inconsiderable portion of the industry of the nation, are 

intrusted to its government;’’ 37 he characterizes ‘‘the power of making war,’’ of ‘‘levying taxes,’’ and of ‘‘regulating commerce’’ as 

‘‘great, substantive and independent powers;’’ 38 and the power conferred by the ‘‘necessary and proper’’ clause embraces, he declares, 

all legislative ‘‘means which are appropriate’’ to carry out the legitimate ends of the Constitution, unless forbidden by ‘‘the letter and 

spirit of the Constitution.’’ 39

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of ‘‘resulting powers,’’ those which 

‘‘rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than 

a consequence or incident of the powers specially enumerated.’’ 40

Story’s reference is to Marshall’s opinion in American Insurance 

Co. v. Canter, 41 where the latter said, that ‘‘the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government 

possesses the power of acquiring territory, either by conquest or by 

treaty.’’ 42 And from the power to acquire territory, he continues, 

arises as ‘‘the inevitable consequence’’ the right to govern it. 43

Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds that ill accord with the 

doctrine of enumerated powers: the power to legislate in effectuation of the ‘‘rights expressly given, and duties expressly enjoined’’ by the Constitution; 44 the power to impart to the paper currency of the Government the quality of legal tender in the payment 

ART. I—LEGISLATIVE DEPARTMENT 73

Sec. 1—The Congress Legislative Powers 

45 Juilliard v. Greenman, 110 U.S. 421, 449–450 (1884). See also Justice Bradley’s concurring opinion in Knox v. Lee, 79 U.S. (12 Wall.) 457, 565 (1871). 46 United States v. Jones, 109 U.S. 513 (1883). 47 United States v. Kagama, 118 U.S. 375 (1886). 48Fong Yue Ting v. United States, 149 U.S. 698 (1893). 49 Hines v. Davidowitz, 312 U.S. 52 (1941). 50 299 U.S. 304 (1936). 51 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). See

also Field v. Clark, 143 U.S. 649, 692 (1892). 

52Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41 (1825). 53The Court in Shreveport Grain & Elevator upheld a delegation of authority 

to the FDA to allow reasonable variations, tolerances, and exemptions from misof debts; 45 the power to acquire territory by discovery; 46 the power 

to legislate for the Indian tribes wherever situated in the United 

States; 47 the power to exclude and deport aliens; 48 and to require 

that those who are admitted be registered and fingerprinted; 49 and

finally the complete powers of sovereignty, both those of war and 

peace, in the conduct of foreign relations. Thus, in United States v. 

Curtiss-Wright Corp., 50 decided in 1936, Justice Sutherland asserted the dichotomy of domestic and foreign powers, with the 

former limited under the enumerated powers doctrine and the latter virtually free of any such restraint. That doctrine has been the 

source of much scholarly and judicial controversy, but, although 

limited, it has not been repudiated. 

Yet, for the most part, these holdings do not, as Justice Sutherland suggested, directly affect ‘‘the internal affairs’’ of the nation; 

they touch principally its peripheral relations, as it were. The most 

serious inroads on the doctrine of enumerated powers are, in fact, 

those which have taken place under cover of the doctrine—the vast 

expansion in recent years of national legislative power in the regulation of commerce among the States and in the expenditure of the 

national revenues. Verbally, at least, Marshall laid the ground for 

these developments in some of the phraseology above quoted from 

his opinion in McCulloch v. Maryland.

DELEGATION OF LEGISLATIVE POWER 

The History of the Doctrine of Nondelegability 

The Supreme Court has sometimes declared categorically that 

‘‘the legislative power of Congress cannot be delegated,’’ 51 and on 

other occasions has recognized more forthrightly, as Chief Justice 

Marshall did in 1825, that, although Congress may not delegate 

powers that ‘‘are strictly and exclusively legislative,’’ it may delegate ‘‘powers which [it] may rightfully exercise itself.’’ 52 The categorical statement has never been literally true, the Court having 

upheld the delegation at issue in the very case in which the statement was made. 53 The Court has long recognized that administraVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00011 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
74 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

branding prohibitions that were backed by criminal penalties. It was ‘‘not open to 

reasonable dispute’’ that such a delegation was permissible to fill in details ‘‘impracticable for Congress to prescribe.’’ 54 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928) (‘‘In determining what [Congress] may do in seeking assistance from another branch, the 

extent and character of that assistance must be fixed according to common sense 

and the inherent necessities of the government co-ordination’’). 55Mistretta v. United States, 488 U.S. 361, 372 (1989). See also Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 (1940) (‘‘Delegation by Congress has 

long been recognized as necessary in order that the exertion of legislative power 

does not become a futility’’). 56Wayman v. Southard, 23 U.S. (10 Wheat.) at 42. For particularly useful discussions of delegations, see 1 K. DAVIS, ADMINISTRATIVE LAW TREATISE Ch. 3 (2d 

ed., 1978); L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION ch. 2 (1965). 57 276 U.S. 394 (1928). 58 276 U.S. at 406. 59 276 U.S. at 409. The ‘‘intelligible principle’’ test of Hampton is the same as 

the ‘‘legislative standards’’ test of A. L. A. Schechter Poultry Corp. v. United States, 

tion of the law requires exercise of discretion, 54 and that ‘‘in our 

increasingly complex society, replete with ever changing and more 

technical problems, Congress simply cannot do its job absent an 

ability to delegate power under broad general directives.’’ 55 The

real issue is where to draw the line. Chief Justice Marshall recognized ‘‘that there is some difficulty in discerning the exact limits,’’ 

and that ‘‘the precise boundary of this power is a subject of delicate 

and difficult inquiry, into which a court will not enter unnecessarily.’’ 56 Accordingly, the Court’s solution has been to reject delegation challenges in all but the most extreme cases, and to accept 

delegations of vast powers to the President or to administrative 

agencies.

With the exception of a brief period in the 1930’s when the 

Court was striking down New Deal legislation on a variety of 

grounds, the Court has consistently upheld grants of authority that 

have been challenged as invalid delegations of legislative power. 

The modern doctrine may be traced to the 1928 case J. W. 

Hampton, Jr. & Co. v. United States, in which the Court, speaking 

through Chief Justice Taft, upheld Congress’ delegation to the 

President of the authority to set tariff rates that would equalize 

production costs in the United States and competing countries. 57

Although formally invoking the contingency theory, the Court’s 

opinion also looked forward, emphasizing that in seeking the cooperation of another branch Congress was restrained only according to ‘‘common sense and the inherent necessities’’ of the situation. 58 This vague statement was elaborated somewhat in the 

statement that the Court would sustain delegations whenever Congress provided an ‘‘intelligible principle’’ to which the President or 

an agency must conform. 59

ART. I—LEGISLATIVE DEPARTMENT 75

Sec. 1—The Congress Legislative Powers 

295 U.S. 495, 530 (1935), and Panama Refining Co. v. Ryan, 293 U.S. 388, 421 

(1935). 60Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). 61 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). 62 293 U.S. at 430, 418, respectively. Similarly, the executive order exercising 

the authority contained no finding or other explanation by which the legality of the 

action could be tested. Id. at 431-33. 63 295 U.S. at 542. 64 295 U.S. at 541. Other concerns were that the industrial codes were backed 

by criminal sanction, and that regulatory power was delegated to private individuals. See Mistretta v. United States, 488 U.S. 361, 373 n.7 (1989). 65 A year later, the Court invalidated the Bituminous Coal Conservation Act on 

delegation grounds, but that delegation was to private entities. Carter v. Carter 

Coal Co., 298 U.S. 238 (1936). 

As characterized by the Court, the delegations struck down in 

1935 in the Panama Refining 60 and Schechter 61 cases were not 

only broad but unprecedented. Both cases involved provisions of 

the National Industrial Recovery Act. At issue in Panama Refining was a delegation to the President of authority to prohibit interstate transportation of what was known as ‘‘hot oil’’ – oil produced 

in excess of quotas set by state law. The problem was that the Act 

provided no guidance to the President in determining whether or 

when to exercise this authority, and required no finding by the 

President as a condition of exercise of the authority. Congress ‘‘declared no policy, . . . established no standard, [and] laid down no 

rule,’’ but rather ‘‘left the matter to the President without standard 

or rule, to be dealt with as he pleased.’’ 62 At issue in Schechter was

a delegation to the President of authority to promulgate codes of 

fair competition that could be drawn up by industry groups or prescribed by the President on his own initiative. The codes were required to implement the policies of the Act, but those policies were 

so general as to be nothing more than an endorsement of whatever 

might be thought to promote the recovery and expansion of the 

particular trade or industry. The President’s authority to approve, 

condition, or adopt codes on his own initiative was similarly devoid 

of meaningful standards, and ‘‘virtually unfettered.’’ 63 This broad 

delegation was ‘‘without precedent.’’ The Act supplied ‘‘no standards’’ for any trade or industry group, and, unlike other broad delegations that had been upheld, did not set policies that could be implemented by an administrative agency required to follow ‘‘appropriate administrative procedure.’’ ‘‘Instead of prescribing rules of 

conduct, [the Act] authorize[d] the making of codes to prescribe 

them.’’ 64

Since 1935, the Court has not struck down a delegation to an 

administrative agency. 65 Rather, the Court has approved, ‘‘without 

deviation, Congress’ ability to delegate power under broad standVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00013 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
76 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

66Mistretta v. United States, 488 U.S. 361, 373 (1989). 67Lichter v. United States, 334 U.S. 742 (1948). 68 American Power & Light Co. v. SEC, 329 U.S. 90 (1946). 69 Yakus v. United States, 321 U.S. 414 (1944). 70FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944). 71 National Broadcasting Co. v. United States, 319 U.S. 190 (1943). 72 Hampton v. Mow Sun Wong, 426 U.S. 88, 122 (1976) (Justice Rehnquist, dissenting). 73Mistretta v. United States, 488 U.S. 361, 373-79 (1989) 74See, e.g., Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (contrasting the delegation to deal with ‘‘unprecedented economic problems of varied industries’’ with the 

delegation of authority to deal with problems of the banking industry, where there 

was ‘‘accumulated experience’’ derived from long regulation and close supervision); 

Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001) (the NIRA ‘‘conferred authority to regulate the entire economy on the basis of no more precise a 

standard than stimulating the economy by assuring ‘fair competition’’’). 75See, e.g., Yakus v. United States, 321 U.S. 414, 424-25 (1944) (Schechter involved delegation ‘‘not to a public official . . . but to private individuals’’; it suffices 

if Congress has sufficiently marked the field within which an administrator may act 

‘‘so it may be known whether he has kept within it in compliance with the legislative will.’’) 76See, e.g., Industrial Union Dep’t v. American Petroleum Inst., 448 U.S. 607, 

645-46 (1980) (plurality opinion) (invalidating an occupational safety and health regulation, and observing that the statute should not be interpreted to authorize enforcement of a standard that is not based on an ‘‘understandable’’ quantification of 

risk); National Cable Television Ass’n v. United States, 415 U.S. 336, 342 (1974) 

(‘‘hurdles revealed in [Schechter and J. W. Hampton, Jr. & Co. v. United States] 

lead us to read the Act narrowly to avoid constitutional problems’’). 77 E.g., A Symposium on Administrative Law: Part I - Delegation of Powers to 

Administrative Agencies, 36 AMER. U. L. REV. 295 (1987); Schoenbrod, The Delegation Doctrine: Could the Court Give It Substance?, 83 MICH. L. REV. 1223 (1985); 

Aranson, Gellhorn & Robinson, A Theory of Legislative Delegation, 68 CORN. L. 

REV. 1 (1982). 

ards.’’ 66 The Court has upheld, for example, delegations to administrative agencies to determine ‘‘excessive profits’’ during wartime, 67

to determine ‘‘unfair and inequitable distribution of voting power’’ 

among securities holders, 68 to fix ‘‘fair and equitable’’ commodities 

prices, 69 to determine ‘‘just and reasonable’’ rates, 70 and to regulate broadcast licensing as the ‘‘public interest, convenience, or necessity require.’’ 71 During all this time the Court ‘‘has not seen fit 

... to enlarge in the slightest [the] relatively narrow holdings’’ of 

Panama Refining and Schechter. 72 Again and again, the Court has 

distinguished the two cases, sometimes by finding adequate standards in the challenged statute, 73 sometimes by contrasting the vast 

scope of the power delegated by the National Industrial Recovery 

Act, 74 and sometimes by pointing to required administrative findings and procedures that were absent in the NIRA. 75 The Court 

has also relied on the constitutional doubt principle of statutory 

construction to narrow interpretations of statutes that, interpreted 

broadly, might have presented delegation issues. 76

Concerns in the scholarly literature with respect to the scope 

of the delegation doctrine 77 have been reflected in the opinions of 

ART. I—LEGISLATIVE DEPARTMENT 77

Sec. 1—The Congress Legislative Powers 

78 American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 543 (1981) (Chief Justice Burger dissenting); Industrial Union Dep’t v. American Petroleum Inst., 448 

U.S. 607, 671 (1980) (then-Justice Rehnquist concurring). See also United States v. 

Midwest Video Corp., 406 U.S. 649, 675, 677 (1972) (Chief Justice Burger concurring, Justice Douglas dissenting); Arizona v. California, 373 U.S. 546, 625–26 (1963) 

(Justice Harlan dissenting in part). Occasionally, statutes are narrowly construed, 

purportedly to avoid constitutional problems with delegations. E.g., Industrial Union 

Dep’t, 448 U.S. at 645–46 (plurality opinion); National Cable Television Ass’n v. 

United States, 415 U.S. 336, 342 (1974). 79 E.g., Mistretta v. United States, 488 U.S. 361, 371–79 (1989). See also Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 220–24 (1989); Touby v. United 

States, 500 U.S. 160, 164–68 (1991); Whitman v. American Trucking Ass’ns, 531 

U.S. 547 (2001). While expressing considerable reservations about the scope of delegations, Justice Scalia, in Mistretta, 488 U.S. at 415–16, conceded both the inevitability of delegations and the inability of the courts to police them. 

Notice Clinton v. City of New York, 524 U.S. 417 (1998), in which the Court 

struck down the Line Item Veto Act, intended by Congress to be a delegation to the 

President, finding that the authority conferred on the President was legislative 

power, not executive power, which failed because the presentment clause had not 

and could not have been complied with. The dissenting Justices argued that the law 

was properly treated as a delegation and was clearly constitutional. Id. at 453 (Justice Scalia concurring in part and dissenting in part), 469 (Justice Breyer dissenting). 80Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10 

Wheat.) 1, 42 (1825). 81 276 U.S. 394, 405–06 (1928). 

some of the Justices. 78 Nonetheless, the Court’s decisions continue 

to approve very broad delegations, 79 and the practice will likely remain settled. 

The fact that the Court has gone so long without holding a 

statute to be an invalid delegation does not mean that the nondelegation doctrine is a dead letter. The long list of rejected challenges 

does suggest, however, that the doctrine applies only to 

standardless delegations of the most sweeping nature. 

The Nature and Scope of Permissible Delegations 

Application of two distinct constitutional principles contributed 

to the development of the nondelegation doctrine: separation of 

powers and due process. A rigid application of separation of powers 

would prevent the lawmaking branch from divesting itself of any 

of its power and conferring it on one of the other branches. But the 

doctrine is not so rigidly applied as to prevent conferral of significant authority on the executive branch. 80 In J. W. Hampton, Jr. & 

Co. v. United States, 81 Chief Justice Taft explained the doctrine’s 

import in the delegation context. ‘‘The Federal Constitution . . . 

divide[s] the governmental power into three branches. . . . [I]n carrying out that constitutional division . . . it is a breach of the National fundamental law if Congress gives up its legislative power 

and transfers it to the President, or to the Judicial branch, or if 

by law it attempts to invest itself or its members with either execuVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00015 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
78 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

82 Chief Justice Taft traced the separation of powers doctrine to the maxim 

delegata potestas non potest delegari (a delegated power may not be delegated), 276 

U.S. at 405, but the maxim does not help differentiate between permissible and impermissible delegations, and Court has not repeated this reference in later delegation cases. 83 517 U.S. 748 (1996). 84 517 U.S. at 758–59. 85 Carter v. Carter Coal Co., 298 U.S. 238, 310–12 (1936); Yakus v. United 

States, 321 U.S. 414, 424-25 (1944). Since the separation-of-powers doctrine is inapplicable to the States as a requirement of federal constitutional law, Dreyer v. Illinois, 187 U.S. 71, 83–84 (1902), it is the due process clause to which federal courts 

must look for authority to review delegations by state legislatures. See, e.g., Eubank 

v. City of Richmond, 226 U.S. 137 (1912); Embree v. Kansas City Road Dist., 240 

U.S. 242 (1916). 86 23 U.S. (10 Wheat.) 1, 41 (1825). 

tive power or judicial power. This is not to say that the three 

branches are not co-ordinate parts of one government and that 

each in the field of its duties may not invoke the action of the two 

other branches in so far as the action invoked shall not be an assumption of the constitutional field of action of another branch. In 

determining what it may do in seeking assistance from another 

branch, the extent and character of that assistance must be fixed 

according to common sense and the inherent necessities of the governmental co-ordination.’’ 82

In Loving v. United States, 83 the Court distinguished between 

its usual separation-of-powers doctrine—emphasizing arrogation of 

power by a branch and impairment of another branch’s ability to 

carry out its functions—and the delegation doctrine, ‘‘another 

branch of our separation of powers jurisdiction,’’ which is informed 

not by the arrogation and impairment analyses but solely by the 

provision of standards. 84 This confirmed what had long been evident – that the delegation doctrine is unmoored to traditional separation-of-powers principles. 

The second principle underlying delegation law is a due process conception that undergirds delegations to administrative agencies. The Court has contrasted the delegation of authority to a public agency, which typically is required to follow established procedures in building a public record to explain its decisions and to enable a reviewing court to determine whether the agency has stayed 

within its ambit and complied with the legislative mandate, with 

delegations to private entities, which typically are not required to 

adhere to such procedural safeguards. 85

Two theories suggested themselves to the early Court to justify 

the results of sustaining delegations. The Chief Justice alluded to 

the first in Wayman v. Southard. 86 He distinguished between ‘‘important’’ subjects, ‘‘which must be entirely regulated by the legislature itself,’’ and subjects ‘‘of less interest, in which a general proviVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00016 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 79

Sec. 1—The Congress Legislative Powers 

87The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813). 88 23 U.S. (10 Wheat.) 1 (1825). 89 Act of May 8, 1792, § 2, 1 Stat. 275, 276. 90The power to promulgate rules of civil procedure was conferred by the Act of 

June 19, 1934, 48 Stat. 1064; the power to promulgate rules of criminal procedure 

was conferred by the Act of June 29, 1940, 54 Stat. 688. These authorities are now 

subsumed under 28 U.S.C. § 2072. In both instances Congress provided for submission of the rules to it, presumably reserving the power to change or to veto the 

rules. Additionally, Congress has occasionally legislated rules itself. See, e.g., 82 

Stat. 197 (1968), 18 U.S.C. §§ 3501–02 (admissibility of confessions in federal 

courts). 91 In re Kollock, 165 U.S. 526 (1897). 92 165 U.S. at 533. 93 United States v. Bailey, 34 U.S. (9 Pet.) 238 (1835); Caha v. United States, 

152 U.S. 211 (1894). 94 Buttfield v. Stranahan, 192 U.S. 470 (1904). See also United States v. 

Grimaud, 220 U.S. 506 (1911) (upholding act authorizing executive officials to make 

rules governing use of forest reservations); ICC v. Goodrich Transit Co., 224 U.S. 

sion may be made, and power given to those who are to act under 

such general provisions, to fill up the details.’’ While his distinction 

may be lost, the theory of the power ‘‘to fill up the details’’ remains 

current. A second theory, formulated even earlier, is that Congress 

may legislate contingently, leaving to others the task of 

ascertaining the facts that bring its declared policy into operation. 87

Filling Up the Details.—In finding a power to ‘‘fill up the details,’’ the Court in Wayman v. Southard 88 rejected the contention 

that Congress had unconstitutionally delegated power to the federal courts to establish rules of practice. 89 Chief Justice Marshall 

agreed that the rule-making power was a legislative function and 

that Congress could have formulated the rules itself, but he denied 

that the delegation was impermissible. Since then, of course, Congress has authorized the Supreme Court to prescribe rules of procedure for the lower federal courts. 90

Filling up the details of statutes has long been the standard. 

For example, the Court upheld a statute requiring the manufacturers of oleomargarine to have their packages ‘‘marked, stamped and 

branded as the Commissioner of Internal Revenue . . . shall prescribe,’’ rejecting a contention that the prosecution was not for violation of law but for violation of a regulation. 91 ‘‘The criminal offence,’’ said Chief Justice Fuller, ‘‘is fully and completely defined by 

the act and the designation by the Commissioner of the particular 

marks and brands to be used was a mere matter of detail.’’ 92

Kollock was not the first such case, 93 and it was followed by a multitude of delegations that the Court sustained. In one such case, for 

example, the Court upheld an act directing the Secretary of the 

Treasury to promulgate minimum standards of quality and purity 

for tea imported into the United States. 94

80 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

194 (1912) (upholding delegation to prescribe methods of accounting for carriers in 

interstate commerce). 95 11 U.S. (7 Cr.) 382 (1813). 96 11 U.S. (7 Cr.) at 388. 97 143 U.S. 649 (1892). 98 143 U.S. at 691. 

Contingent Legislation.—An entirely different problem 

arises when, instead of directing another department of government to apply a general statute to individual cases, or to supplement it by detailed regulation, Congress commands that a previously enacted statute be revived, suspended, or modified, or that 

a new rule be put into operation, upon the finding of certain facts 

by an executive or administrative officer. Since the delegated function in such cases is not that of ‘‘filling up the details’’ of a statute, 

authority for it must be sought under some other theory. 

Contingent delegation was approved in an early case, The Brig 

Aurora, 95 upholding the revival of a law upon the issuance of a 

presidential proclamation. After previous restraints on British 

shipping had lapsed, Congress passed a new law stating that those 

restrictions should be renewed in the event the President found 

and proclaimed that France had abandoned certain practices that 

violated the neutral commerce of the United States. To the objection that this was an invalid delegation of legislative power, the 

Court answered briefly that ‘‘we can see no sufficient reason, why 

the legislature should not exercise its discretion in reviving the act 

of March 1st, 1809, either expressly or conditionally, as their judgment should direct.’’ 96

The theory was utilized again in Field v. Clark, 97 where the 

Tariff Act of 1890 was assailed as unconstitutional because it directed the President to suspend the free importation of enumerated 

commodities ‘‘for such time as he shall deem just’’ if he found that 

other countries imposed upon agricultural or other products of the 

United States duties or other exactions, which ‘‘he may deem to be 

reciprocally unequal and unjust.’’ In sustaining this statute the 

Court relied heavily upon two factors: (1) legislative precedents, 

which demonstrated that ‘‘in the judgment of the legislative branch 

of the government, it is often desirable, if not essential, . . . to invest the President with large discretion in matters arising out of 

the execution of statutes relating to trade and commerce with other 

nations;’’ 98 (2) that the act did ‘‘not, in any real sense, invest the 

President with the power of legislation. . . . Congress itself prescribed, in advance, the duties to be levied, . . . while the suspension 

lasted. Nothing involving the expediency or the just operation of 

such legislation was left to the determination of the President. . . . 

He had no discretion in the premises except in respect to the duraVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00018 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 81

Sec. 1—The Congress Legislative Powers 

99 143 U.S. at 692, 693. 100 J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928). 101 Arizona v. California, 373 U.S. 546, 626 (1963) (Justice Harlan, dissenting). 102 293 U.S. 388 (1935). 103The Court, in the view of many observers, was influenced heavily by the fact 

that the President’s orders were nowhere published and notice of regulations bearing criminal penalties for their violations was spotty at best. Cf. E. CORWIN, THE

PRESIDENT—OFFICE AND POWERS 1787–1957 394–95 (4th ed. 1958). The result of 

the Government’s discomfiture in Court was enactment of the Federal Register Act, 

49 Stat. 500 (1935), 44 U.S.C. § 301, providing for publication of Executive Orders 

and agency regulations in the daily Federal Register. 104 295 U.S. 495 (1935). 

tion of the suspension so ordered.’’ 99 By similar reasoning, the 

Court sustained the flexible provisions of the Tariff Act of 1922 

whereby duties were increased or decreased to reflect differences in 

cost of production at home and abroad, as such differences were 

ascertained and proclaimed by the President. 100

Standards.—Implicit in the concept of filling in the details is 

the idea that there is some intelligible guiding principle or framework to apply. Indeed, the requirement that Congress set forth ‘‘intelligible principles’’ or ‘‘standards’’ to guide as well as limit the 

agency or official in the performance of its assigned task has been 

critical to the Court’s acceptance of legislative delegations. In theory, the requirement of standards serves two purposes: ‘‘it insures 

that the fundamental policy decisions in our society will be made 

not by an appointed official but by the body immediately responsible to the people, [and] it prevents judicial review from becoming 

merely an exercise at large by providing the courts with some 

measure against which to judge the official action that has been 

challenged.’’ 101

The only two instances in which the Court has found an unconstitutional delegation to a public entity have involved grants of discretion that the Court found to be unbounded, hence standardless. 

Thus, in Panama Refining Co. v. Ryan, 102 the President was authorized to prohibit the shipment in interstate commerce of ‘‘hot 

oil’’—oil produced in excess of state quotas. Nowhere – not in the 

language conferring the authority, nor in the ‘‘declaration of policy,’’ nor in any other provision – did the statute specify a policy 

to guide the President in determining when and under what circumstances to exercise the power. 103 While the scope of granted 

authority in Panama Refining was narrow, the grant in A.L.A.

Schechter Poultry Corp. v. United States 104 was sweeping. The National Industrial Recovery Act devolved on the executive branch the 

power to formulate codes of ‘‘fair competition’’ for all industry in 

order to promote ‘‘the policy of this title.’’ The policy was ‘‘to eliminate unfair competitive practices, to promote the fullest possible 

82 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

105 48 Stat. 195 (1933), Tit. I, § 1. 

106 295 U.S. at 541–542. A delegation of narrower scope led to a different result 

in Fahey v. Mallonee, 332 U.S. 245, 250 (1947), the Court finding explicit standards 

unnecessary because ‘‘[t]he provisions are regulatory’’ and deal with but one enterprise, banking, the problems of which are well known and the authorized remedies 

as equally well known. ‘‘A discretion to make regulations to guide supervisory action 

in such matters may be constitutionally permissible while it might not be allowable 

to authorize creation of new crimes in uncharted fields.’’ The Court has recently explained that ‘‘the degree of agency discretion that is acceptable varies according to 

the scope of the power congressionally conferred.’’ Whitman v. American Trucking 

Ass’ns, 531 U.S. 457, 475 (2001) (Congress need not provide ‘‘any direction’’ to EPA 

in defining ‘‘country elevators,’’ but ‘‘must provide substantial guidance on setting 

air standards that affect the entire national economy’’). 

107 307 U.S. 533 (1939). 

108 307 U.S. at 575. Other guidance in the marketing law limited the terms of 

implementing orders and specified the covered commodities. 

109 Yakus v. United States, 321 U.S. 414 (1944) (the principal purpose was to 

control wartime inflation, and the administrator was directed to give ‘‘due consideration’’ to a specified pre-war base period). 

110Tagg Bros. & Moorhead v. United States, 280 U.S. 420 (1930). 

111 New York Central Securities Corp. v. United States, 287 U.S. 12 (1932). 

utilization of the present productive capacity of industries, . . . and 

otherwise to rehabilitate industry. . . .’’ 105 Though much of the opinion is written in terms of the failure of these policy statements to 

provide meaningful standards, the Court was also concerned with 

the delegation’s vast scope – the ‘‘virtually unfettered’’ discretion 

conferred on the President of ‘‘enacting laws for the government of 

trade and industry throughout the country.’’ 106

Typically the Court looks to the entire statute to determine 

whether there is an intelligible standard to guide administrators, 

and a statute’s declaration of policies or statement of purposes can 

provide the necessary guidance. If a statute’s declared policies are 

not open-ended, then a delegation of authority to implement those 

policies can be upheld. For example, in United States v. Rock Royal 

Co-operatives, 107 the Court contrasted the National Industrial Recovery Act’s statement of policy, ‘‘couched in most general terms’’ 

and found lacking in Schechter, with the narrower policy that an 

agricultural marketing law directed the Secretary of Agriculture to 

implement. 108 Similarly, the Court found ascertainable standards 

in the Emergency Price Control Act’s conferral of authority to set 

prices for commodities if their prices had risen in a manner ‘‘inconsistent with the purposes of this Act.’’ 109

The Court has been notably successful in finding standards 

that are constitutionally adequate. Standards have been 

ascertained to exist in such formulations as ‘‘just and reasonable,’’ 110 ‘‘public interest,’’ 111 ‘‘public convenience, interest, or neVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00020 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 83

Sec. 1—The Congress Legislative Powers 

112Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266 

(1933). 113FTC v. Gratz, 253 U.S. 421 (1920). 114Whitman v. American Trucking Ass’ns, 531 U.S. 547 (2001). 115 319 U.S. 190 (1943). 116 319 U.S. at 216. 117Similarly, the promulgation by the FCC of rules creating a ‘‘fairness doctrine’’ and a ‘‘right to reply’’ rule has been sustained, Red Lion Broadcasting Co. v. 

FCC, 395 U.S. 367 (1969), as well as a rule requiring the carrying of anti-smoking 

commercials. Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied sub 

nom. Tobacco Institute v. FCC, 396 U.S. 842 (1969). 

118 Amalgamated Meat Cutters & Butcher Workmen v. Connally, 337 F. Supp. 

737 (D.D.C. 1971). The three-judge court relied principally on Yakus. 119Fahey v. Mallonee, 332 U.S. 245, 250 (1947) (the Court explained that both 

the problems of the banking industry and the authorized remedies were well 

known). 120 334 U.S. 742 (1948). 121 In upholding the delegation as applied to the pre-incorporation administrative definition, the Court explained that ‘‘[t]he statutory term ‘excessive profits,’ in 

its context, was a sufficient expression of legislative policy and standards to render 

it constitutional.’’ 334 U.S. at 783. The ‘‘excessive profits’’ standard, prior to definicessity,’’ 112 ‘‘unfair methods of competition,’’ 113 and ‘‘requisite to 

protect the public health [with] an adequate margin of safety.’’ 114

Thus, in National Broadcasting Co. v. United States, 115 the Court 

found that the discretion conferred on the Federal Communications 

Commission to license broadcasting stations to promote the ‘‘public 

interest, convenience, or necessity’’ conveyed a standard ‘‘as complete as the complicated factors for judgment in such a field of delegated authority permit.’’ 116 Yet the regulations upheld were directed to the contractual relations between networks and stations 

and were designed to reduce the effect of monopoly in the industry, 

a policy on which the statute was silent. 117 When in the Economic 

Stabilization Act of 1970, Congress authorized the President ‘‘to 

issue such orders and regulations as he may deem appropriate to 

stabilize prices, rents, wages, and salaries,’’ and the President responded by imposing broad national controls, the lower court decision sustaining the action was not even appealed to the Supreme 

Court. 118 Explicit standards are not even required in all situations, 

the Court having found standards reasonably implicit in a delegation to the Federal Home Loan Bank Board to regulate banking associations. 119

The Court has recently emphatically rejected the idea that administrative implementation of a congressional enactment may provide the intelligible standard necessary to uphold a delegation. The 

Court’s decision in Lichter v. United States 120 could be read as approving of a bootstrap theory, the Court in that case having upheld 

the validity of a delegation of authority to recover ‘‘excessive profits’’ as applied to profits earned prior to Congress’s incorporation 

into the statute of the administrative interpretation. 121 In WhitVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00021 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
84 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

tion, was contained in Tit. 8 of the Act of October 21, 1942, 56 Stat. 798, 982. The 

administrative definition was added by Tit. 7 of the Act of February 25, 1944, 58 

Stat. 21, 78. 122 531 U.S. 547 (2001). 123 531 U.S. at 472. 124 Id. 125Whitman v. American Trucking Ass’ns, 531 U.S. 457, 475 (2001). 126Whitman, 531 U.S. at 475-76. 127 488 U.S. 361 (1989). 128 488 U.S. at 378. 129 E.g., Permian Basin Area Rate Cases, 390 U.S. 747 (1968); American Trucking Ass’ns v. Atchison, Topeka & Santa Fe Ry., 387 U.S. 397 (1967). 

man v. American Trucking Associations, 122 however, the Court asserted that Lichter mentioned agency regulations only ‘‘because a 

subsequent Congress had incorporated the regulations into a revised version of the statute.’’ 123 ‘‘We have never suggested that an 

agency can cure an unlawful delegation of legislative power by 

adopting in its discretion a limiting construction . . . ,’’ 124 the Court 

concluded.

Even in ‘‘sweeping regulatory schemes’’ that affect the entire 

economy, the Court has ‘‘never demanded . . . that statutes provide 

a ‘determinate criterion’ for saying ‘how much [of the regulated 

harm] is too much.’’’ 125 Thus Congress need not quantify how ‘‘imminent’’ is too imminent, how ‘‘necessary’’ is necessary enough, how 

‘‘hazardous’’ is too hazardous, or how much profit is ‘‘excess.’’ Rather, discretion to make such determinations may be conferred on administrative agencies. 126

While Congress must ordinarily provide some guidance that indicates broad policy objectives, there is no general prohibition on 

delegating authority that includes the exercise of policy judgment. 

In Mistretta v. United States, 127 the Court approved congressional 

delegations to the Sentencing Commission, an independent agency 

in the judicial branch, to develop and promulgate guidelines binding federal judges and cabining their discretion in sentencing criminal defendants. Although the Court enumerated the standards 

Congress had provided, it admitted that significant discretion existed with respect to making policy judgments about the relative 

severity of different crimes and the relative weight of the characteristics of offenders that are to be considered, and stated forthrightly that delegations may carry with them ‘‘the need to exercise 

judgment on matters of policy.’’ 128 A number of cases illustrate the 

point. Thus, the Court has upheld complex economic regulations of 

industries in instances in which the agencies had first denied possession of such power, had unsuccessfully sought authorization 

from Congress, and had finally acted without the requested congressional guidance. 129 The Court has also recognized that when 

ART. I—LEGISLATIVE DEPARTMENT 85

Sec. 1—The Congress Legislative Powers 

130 Chevron, U.S.A. v. NRDC, 467 U.S. 837, 842–45, 865–66 (1984) (‘‘[A]n agency 

to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of 

wise policy to inform its judgments.’’ Id. at 865). See also Motor Vehicle Mfrs. Ass’n 

v. State Farm Mut. Ins. Co., 463 U.S. 29, 42–44, 46–48, 51–57 (1983) (recognizing 

agency could have reversed its policy but finding reasons not supported on record). 131 Yakus v. United States, 321 U.S. 414, 425 (1944). 132 Yakus v. United States, 321 U.S. 414, 426; Skinner v. Mid-America Pipeline 

Co., 490 U.S. 212, 218 (1989); American Light & Power Co. v. SEC, 329 U.S. 90, 

107, 108 (1946); Opp Cotton Mills v. Administrator, 312 U.S. 126, 144 (1941). It 

should be remembered that the Court has renounced strict review of economic regulation wholly through legislative enactment, forsaking substantive due process, so 

that review of the exercise of delegated power by the same relaxed standard forwards a consistent policy. E.g., Ferguson v. Skrupa, 372 U.S. 726 (1963); Williamson 

v. Lee Optical Co., 348 U.S. 483 (1955). 133 Act of June 11, 1946, 60 Stat. 237, 5 U.S.C. §§ 551–559. In NLRB v. WymanGordon Co., 394 U.S. 759 (1969), six Justices agreed that a Board proceeding had 

been in fact rule-making and not adjudication and that the APA should have been 

complied with. The Board won the particular case, however, because of a coalescence 

of divergent views of the Justices, but the Board has since reversed a policy of not 

resorting to formal rule-making. 134 E.g., Goldberg v. Kelly, 397 U.S. 254 (1970); Wisconsin v. Constantineau, 400 

U.S. 433 (1971). 135 City of New York v. FCC, 486 U.S. 57, 63–64 (1988); Louisiana PSC v. FCC, 

476 U.S. 355, 368–69 (1986); Fidelity Federal Savings & Loan Ass’n v. de la Cuesta, 

458 U.S. 141, 153–54 (1982). 

Administrations change, new officials may have sufficient discretion under governing statutes to change or even reverse agency 

policies. 130

It seems therefore reasonably clear that the Court does not 

really require much in the way of standards from Congress. The 

minimum which the Court usually insists on is that Congress employ a delegation which ‘‘sufficiently marks the field within which 

the Administrator is to act so that it may be known whether he has 

kept within it in compliance with the legislative will.’’ 131 Where the 

congressional standards are combined with requirements of notice 

and hearing and statements of findings and considerations by the 

administrators, so that judicial review under due process standards 

is possible, the constitutional requirements of delegation have been 

fulfilled. 132 This requirement may be met through the provisions of 

the Administrative Procedure Act, 133 but where that Act is inapplicable or where the Court sees the necessity for exceeding its provisions, due process can supply the safeguards of required hearing, 

notice, supporting statements, and the like. 134

Preemptive Reach of Delegated Authority.—In exercising a 

delegated power the President or another officer may effectively 

suspend or rescind a law passed by Congress, or may preempt state 

law. A rule or regulation properly promulgated under authority received from Congress is law, and under the supremacy clause of 

the Constitution can preempt state law. 135 Similarly, a valid reguVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00023 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
86 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

136 E.g., The Brig Aurora, 11 U.S. (7 Cr.) 382 (1813). 137 E.g., J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928); Field 

v. Clark, 143 U.S. 649 (1892). 138 312 U.S. 126 (1941). 139See 28 U.S.C. § 2072. In Davis v. United States, 411 U.S. 233, 241 (1973), 

the Court referred in passing to the supersession of statutes without evincing any 

doubts about the validity of the results. When Congress amended the Rules Enabling Acts in the 100th Congress, P.L. 100–702, 102 Stat. 4642, 4648, amending 28 

U.S.C. § 2072, the House would have altered supersession, but the Senate disagreed, the House acquiesced, and the old provision remained. See H.R. 4807, H. 

Rep. No. 100–889, 100th Cong., 2d sess. (1988), 27–29; 134 CONG REC. 23573–84 

(1988), id. at 31051–52 (Sen. Heflin); id. at 31872 (Rep. Kastenmeier). 140 299 U.S. 304, 319-29 (1936). 141 299 U.S. at 319–22. For a particularly strong, recent assertion of the point, 

see Haig v. Agee, 453 U.S. 280, 291–92 (1981). This view also informs the Court’s 

analysis in Dames & Moore v. Regan, 453 U.S. 654 (1981). See also United States 

v. Chemical Foundation, 272 U.S. 1 (1926) (Trading With Enemy Act delegation to 

dispose of seized enemy property). 142Loving v. United States, 517 U.S. 748, 772-73 (1996). 143 299 U.S. at 319. 

lation can supersede a federal statute. Early cases sustained contingency legislation giving the President power, upon the finding of 

certain facts, to revive or suspend a law, 136 and the President’s 

power to raise or lower tariff rates equipped him to alter statutory 

law. 137 The Court in Opp Cotton Mills v. Administrator 138 upheld

Congress’ decision to delegate to the Wage and Hour Administrator 

of the Labor Department the authority to establish a minimum 

wage in particular industries greater than the statutory minimum 

but no higher than a prescribed figure. Congress has not often expressly addressed the issue of repeals or supersessions, but in authorizing the Supreme Court to promulgate rules of civil and criminal procedure and of evidence it directed that such rules supersede 

previously enacted statutes with which they conflict. 139

Delegations to the President in Areas of Shared Authority 

Foreign Affairs.—That the delegation of discretion in dealing 

with foreign relations stands upon a different footing than the 

transfer of authority to regulate domestic concerns was asserted in 

United States v. Curtiss-Wright Corporation. 140 There the Court 

upheld a joint resolution of Congress making it unlawful to sell 

arms to certain warring countries upon certain findings by the 

President, a typically contingent type of delegation. But Justice 

Sutherland for the Court proclaimed that the President is largely 

free of the constitutional constraints imposed by the nondelegation 

doctrine when he acts in foreign affairs. 141 Sixty years later, the 

Court, relying on Curtiss-Wright, reinforced such a distinction in a 

case involving the President’s authority over military justice. 142

Whether or not the President is the ‘‘sole organ of the nation’’ in 

its foreign relations, as asserted in Curtiss-Wright, 143 a lesser 

ART. I—LEGISLATIVE DEPARTMENT 87

Sec. 1—The Congress Legislative Powers 

144 517 U.S. 748 (1996). 

145 10 U.S.C. §§ 918(1), (4). 

146The Court assumed the applicability of Furman v. Georgia, 408 U.S. 238 

(1972), and its progeny, to the military, 517 U.S. at 755–56, a point on which Justice 

Thomas disagreed, id. at 777. 

147 Rule for Courts-Martial; see 517 U.S. at 754. 

148 10 U.S.C. §§ 818, 836(a), 856. 

149 517 U.S. at 771–74. See also United States v. Mazurie, 419 U.S. 544, 556-57 

(1974) (limits on delegation are ‘‘less stringent’’ when delegation is made to an Indian tribe that can exercise independent sovereign authority over the subject matter).

standard of delegation is applied in areas of power shared by the 

President and Congress. 

Military.—Superintendence of the military is another area in 

which shared power with the President affects delegation doctrine. 

The Court in Loving v. United States 144 approved a virtually 

standardless delegation to the President. 

Article 118 of the Uniform Code of Military Justice (UCMJ) 145

provides for the death penalty for premeditated murder and felony 

murder for persons subject to the Act, but the statute does not comport with the Court’s capital punishment jurisdiction, which requires the death sentence to be cabined by standards so that the 

sentencing authority must narrow the class of convicted persons to 

be so sentenced and must justify the individual imposition of the 

sentence. 146 However, the President in 1984 had promulgated 

standards that purported to supply the constitutional validity the 

UCMJ needed. 147

The Court in Loving held that Congress could delegate to the 

President the authority to prescribe standards for the imposition of 

the death penalty – Congress’ power under Article I, § 8, cl. 14, is 

not exclusive – and that Congress had done so in the UCMJ by providing that the punishment imposed by a court-martial may not exceed ‘‘such limits as the President may prescribe.’’ 148 Acknowledging that a delegation must contain some ‘‘intelligible principle’’ 

to guide the recipient of the delegation, the Court nonetheless held 

this not to be true when the delegation was made to the President 

in his role as Commander-in-Chief. ‘‘The same limitations on delegation do not apply’’ if the entity authorized to exercise delegated 

authority itself possesses independent authority over the subject 

matter. The President’s responsibilities as Commander-in-Chief require him to superintend the military, including the courts-martial, 

and thus the delegated duty is interlinked with duties already assigned the President by the Constitution. 149

88 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

150See Warren, Federal Criminal Laws and the State Courts, 38 HARV. L. 

REV. 545 (1925); Holcomb, The States as Agents of the Nation, 3 SELECTED ESSAYS

ON CONSTITUTIONAL LAW 1187 (1938). 151Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539 (1842) (duty to deliver fugitive 

slave); Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861) (holding that Congress 

could not compel a Governor to extradite a fugitive). Doubts over Congress’s power 

to compel extradition were not definitively removed until Puerto Rico v. Branstad, 

483 U.S. 219 (1987), in which the Court overruled Dennison. 152 245 U.S. 366, 389 (1918). 153 E.g., P.L. 94–435, title III, 90 Stat. 1394, 15 U.S.C. § 15c (state attorneys 

general may bring antitrust parens patriae actions); Medical Waste Tracking Act, 

P.L. 100–582, 102 Stat. 2955, 42 U.S.C. § 6992f (States may impose civil and possibly criminal penalties against violators of the law). 154See 24 Weekly Comp. of Pres. Docs. 1418 (1988) (President Reagan). The only 

judicial challenge to such a practice resulted in a rebuff to the presidential argument. Seattle Master Builders Ass’n v. Pacific N.W. Elec. Power Council, 786 F.2d 

1359 (9th Cir. 1986), cert. denied, 479 U.S. 1059 (1987). 155 Currin v. Wallace, 306 U.S. 1 (1939); United States v. Rock Royal Co-operative, 307 U.S. 533, 577 (1939); Wickard v. Filburn, 

317 U.S. 111, 115–116 (1942); 

(1990). 156 Currin v. Wallace, 306 U.S. 1, 15, 16 (1939). 

Delegations to States and to Private Entities 

Delegations to the States.—Beginning in the Nation’s early 

years, Congress has enacted hundreds of statutes that contained 

provisions authorizing state officers to enforce and execute federal 

laws. 150 Challenges to the practice have been uniformly rejected. 

While the Court early expressed its doubt that Congress could compel state officers to act, it entertained no such thoughts about the 

propriety of authorizing them to act if they chose. 151 When, in the 

Selective Draft Law Cases, 152 the contention was made that the act 

was invalid because of its delegations of duties to state officers, the 

argument was rejected as ‘‘too wanting in merit to require further 

notice.’’ Congress continues to empower state officers to act. 153

Presidents who have objected have done so not on delegation 

grounds, but rather on the basis of the Appointments Clause. 154

Delegations to Private Entities.—Statutory delegations to 

private persons in the form of contingency legislation have passed 

Court tests. Thus, statutes providing that restrictions upon the production or marketing of agricultural commodities are to become operative only upon a favorable vote by a prescribed majority of those 

persons affected have been upheld. 155 The rationale of the Court is 

that such a provision does not involve any delegation of legislative 

authority, since Congress has merely placed a restriction upon its 

own regulation by withholding its operation unless it is approved 

in a referendum. 156

Statutes that have given private entities actual regulatory 

power, rather than merely made regulation contingent on their approval, have also been upheld. The Court upheld a statute that delVerDate Aug<10>2004 08:44 Aug 16, 2004 Jkt 077500 PO 00000 Frm 00026 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 89

Sec. 1—The Congress Legislative Powers 

157St. Louis, Iron Mt. & So. Ry. v. Taylor, 210 U.S. 281 (1908). 158 192 U.S. 470 (1904). 159 210 U.S. at 287. 160 Jackson v. Roby, 109 U.S. 440 (1883); Erhardt v. Boaro, 113 U.S. 527 (1885); 

Butte City Water Co. v. Baker, 196 U.S. 119 (1905). 161 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537 (1935). 

In two subsequent cases, the Court referred to Schechter as having struck down a 

delegation for its lack of standards. Mistretta v. United States, 488 U.S. 361, 373 

n.7 (1989); Whitman v. American Trucking Ass’ns, 531 U.S. 457, 474 (2001). 162 298 U.S. 238 (1936). But compare Sunshine Anthracite Coal Co. v. Adkins, 

310 U.S. 381 (1940) (upholding a delegation in the Bituminous Coal Act of 1937). 163 ‘‘One person may not be entrusted with the power to regulate the business 

of another, and especially of a competitor.’’ 298 U.S. at 311. 164See, e.g., Schweiker v. McClure, 456 U.S. 188 (1992) (adjudication of Medicare claims, without right of appeal, by hearing officer appointed by private insurance carrier upheld under due process challenge); Association of Amer. Physicians 

& Surgeons v. Weinberger, 395 F. Supp. 125 (N.D. Ill.) (three-judge court) (delegation to Professional Standards Review Organization), aff’d per curiam, 423 U.S. 975 

(1975); Noblecraft Industries v. Secretary of Labor, 614 F.2d 199 (9th Cir. 1980) 

(Secretary authorized to adopt interim OSHA standards produced by private organization). Executive Branch objections to these kinds of delegations have involved appointments clause arguments rather than delegation issues per se. 

egated to the American Railway Association, a trade group, the authority to determine the standard height of draw bars for freight 

cars and to certify the figure to the Interstate Commerce Commission, which was required to accept it. 157 The Court simply cited 

Buttfield v. Stranahan, 158 in which it had sustained a delegation 

to the Secretary of the Treasury to promulgate minimum standards 

of quality and purity for imported tea, as a case ‘‘completely in 

point’’ and resolving the issue without need of further consideration. 159 Similarly, the Court had enforced statutes that gave legal 

effect to local customs of miners with respect to claims on public 

lands. 160

The Court has struck down delegations to private entities, but 

not solely because they were to private entities. The Schechter case

condemned the involvement of private trade groups in the drawing 

up of binding codes of competition in conjunction with governmental agencies, but the Court’s principal objection was to the statute’s lack of adequate standards. 161 In Carter v. Carter Coal Co., 162

the Court struck down the Bituminous Coal Conservation Act in 

part because the statute penalized persons who failed to observe 

minimum wage and maximum hour regulations drawn up by prescribed majorities of coal producers and coal employees. But the 

problem for the Court apparently was not so much that the statute 

delegated to private entities as that it delegated to private entities 

whose interests were adverse to the interests of those regulated, 

thereby denying the latter due process. 163 And several later cases 

have upheld delegations to private entities. 164

90 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

165The Act conferred authority on the President to approve the codes of competition, either as proposed by the appropriate trade group, or with conditions that he 

added. Thus the principal delegation was to the President, with the private trade 

groups being delegated only recommendatory authority. 295 U.S. at 538-39. 166 295 U.S. at 539. 167See, e.g., Yakus v. United States, 321 U.S. 414, 424-25 (1944). 168Lichter v. United States, 334 U.S. 742, 778–79 (1948). 169 490 U.S. 212, 223 (1989). In National Cable Television Ass’n v. United 

States, 415 U.S. 336, 342 (1974), and FPC v. New England Power Co., 415 U.S. 345 

(1974), the Court had appeared to suggest that delegation of the taxing power would 

be fraught with constitutional difficulties. How this conclusion could have been 

thought viable after the many cases sustaining delegations to fix tariff rates, which 

are in fact and law taxes, J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 

(1928); Field v. Clark, 143 U.S. 649 (1892); and see FEA v. Algonquin SNG, Inc., 

426 U.S. 548 (1976) (delegation to President to raise license ‘‘fees’’ on imports when 

necessary to protect national security), is difficult to discern. Nor should doubt exist 

respecting the appropriations power. See Synar v. United States, 626 F. Supp. 1374, 

1385–86 (D.D.C.) (three-judge court), aff’d on other grounds sub nom. Bowsher v. 

Synar, 478 U.S. 714 (1986). 

Even though the Court has upheld some private delegations by 

reference to cases involving delegations to public agencies, some 

uncertainty remains as to whether identical standards apply. The 

Schechter Court contrasted the National Industrial Recovery Act’s 

broad and virtually standardless delegation to the President, assisted by private trade groups, 165 with other broad delegations of 

authority to administrative agencies, characterized by the Court as 

bodies of experts ‘‘required to act upon notice and hearing,’’ and 

further limited by the requirement that binding orders must be 

‘‘supported by findings of fact which in turn are sustained by evidence.’’ 166 The absence of these procedural protections, designed to 

ensure fairness – as well as the possible absence of impartiality 

identified in Carter Coal– could be cited to support closer scrutiny 

of private delegations. While the Court has emphasized the importance of administrative procedures in upholding broad delegations 

to administrative agencies, 167 it has not, since Schechter and

Carter Coal, relied on the distinction to strike down a private delegation.

Particular Subjects or Concerns – Closer Scrutiny or 

Uniform Standard? 

The Court has strongly implied that the same principles govern the validity of a delegation regardless of the subject matter of 

the delegation. ‘‘[A] constitutional power implies a power of delegation of authority under it sufficient to effect its purposes.’’ 168 Holding that ‘‘the delegation of discretionary authority under Congress’ 

taxing power is subject to no constitutional scrutiny greater than 

that we have applied to other nondelegation challenges,’’ the Court 

explained in Skinner v. Mid-America Pipeline Company 169 that

ART. I—LEGISLATIVE DEPARTMENT 91

Sec. 1—The Congress Legislative Powers 

170 490 U.S. at 221. Nor is there basis for distinguishing the other powers enumerated in § 8. See, e.g., Loving v. United States, 517 U.S. 748 (1996). But see 

Touby v. United States, 500 U.S. 160, 166 (1991) (it is ‘‘unclear’’ whether a higher 

standard applies to delegations of authority to issue regulations that contemplate 

criminal sanctions), discussed in the next section. 171Touby v. United States, 500 U.S. 160, 166 (1991). 172Tiffany v. National Bank of Missouri, 85 U.S. (18 Wall.) 409, 410 (1873). 173 A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). 174Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). 175Fahey v. Mallonee, 332 U.S. 245, 249 (1947). 

there was ‘‘nothing in the placement of the Taxing Clause’’ in Article I, § 8 that would distinguish it, for purposes of delegation, from 

the other powers enumerated in that clause. 170 Thus, the test in 

the taxing area is the same as for other areas – whether the statute has provided the administrative agency with standards to guide 

its actions in such a way that a court can determine whether the 

congressional policy has been followed. 

This does not mean that Congress may delegate its power to 

determine whether taxes should be imposed. What was upheld in 

Skinner was delegation of authority to the Secretary of Transportation to collect ‘‘pipeline safety user fees’’ for users of natural gas 

and hazardous liquid pipelines. ‘‘Multiple restrictions’’ placed on 

the Secretary’s discretion left no doubt that the constitutional requirement of an intelligible standard had been met. Cases involving the power to impose criminal penalties, described below, further illustrate the difference between delegating the underlying 

power to set basic policy – whether it be the decision to impose 

taxes or the decision to declare that certain activities are crimes – 

and the authority to exercise discretion in administering the policy. 

Crime and Punishment.—The Court has confessed that its 

‘‘cases are not entirely clear as to whether more specific guidance 

is in fact required’’ for delegations relating to the imposition of 

criminal sanctions. 171 It is clear, however, that some essence of the 

power to define crimes and set a range of punishments is not delegable, but must be exercised by Congress. This conclusion derives 

in part from the time-honored principle that penal statutes are to 

be strictly construed, and that no one should be ‘‘subjected to a 

penalty unless the words of the statute plainly impose it.’’ 172 Both

Schechter 173 and Panama Refining 174 – the only two cases in which 

the Court has invalidated delegations – involved broad delegations 

of power to ‘‘make federal crimes of acts that never had been such 

before.’’ 175 Thus, Congress must provide by statute that violation 

of the statute’s terms – or of valid regulations issued pursuant 

thereto – shall constitute a crime, and the statute must also specify 

a permissible range of penalties. Punishment in addition to that 

92 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

176L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404 (1944) (‘‘[I]t is for Congress 

to prescribe the penalties for the laws which it writes. It would transcend both the 

judicial and the administrative function to make additions to those which Congress 

has placed behind a statute’’). 177 United States v. Grimaud, 220 U.S. 506 (1911). The Forest Reserve Act at 

issue in Grimaud clearly provided for punishment for violation of ‘‘rules and regulations of the Secretary.’’ The Court in Grimaud distinguished United States v. Eaton, 

144 U.S. 677 (1892), which had held that authority to punish for violation of a regulation was lacking in more general language authorizing punishment for failure to 

do what was ‘‘required by law.’’ 220 U.S. at 519. Extension of the principle that 

penal statutes should be strictly construed requires that the prohibited acts be 

clearly identified in the regulation. M. Kraus & Bros. v. United States, 327 U.S. 

614, 621 (1946). The Court summarized these cases in Loving v. United States, 517 

U.S. 748 (1996), drawing the conclusion that ‘‘there is no absolute rule . . . against 

Congress’ delegation of authority to define criminal punishments.’’ 178Touby v. United States, 500 U.S. 160 (1991). 179Mistretta v. United States, 488 U.S. 361 (1989) 180 488 U.S. at 377-78. ‘‘As for every other offense within the Commission’s jurisdiction, the Commission could include the death penalty within the guidelines only 

if that punishment was authorized in the first instance by Congress and only if such 

inclusion comported with the substantial guidance Congress gave the Commission 

in fulfilling its assignments.’’ Id. at 378 n.11. 

authorized in the statute may not be imposed by administrative action. 176

However, once Congress has exercised its power to declare certain acts criminal, and has set a range of punishment for violations, authority to flesh out the details may be delegated. Congress 

may provide that violation of valid administrative regulations shall 

be punished as a crime. 177 For example, the Court has upheld a 

delegation of authority to classify drugs as ‘‘controlled substances,’’ 

and thereby to trigger imposition of criminal penalties, set by statute, that vary according to the level of a drug’s classification by the 

Attorney General. 178

Congress may also confer on administrators authority to prescribe criteria for ascertaining an appropriate sentence within the 

range between the maximum and minimum penalties that are set 

by statute. The Court upheld Congress’s conferral of ‘‘significant 

discretion’’ on the Sentencing Commission to set binding sentencing 

guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants. 179 Although the Commission was given significant discretionary authority ‘‘to determine 

the relative severity of federal crimes, . . . assess the relative weight 

of the offender characteristics listed by Congress, . . . to determine 

which crimes have been punished too leniently and which too severely, [and] which types of criminals are to be considered similar,’’ 

Congress also gave the Commission extensive guidance in the Act, 

and did not confer authority to create new crimes or to enact a federal death penalty for any offense. 180

ART. I—LEGISLATIVE DEPARTMENT 93

Sec. 1—The Congress Legislative Powers 

181 United States v. Robel, 389 U.S. 258, 269 (1967) (Justice Brennan concurring). The view was specifically rejected by Justices White and Harlan in dissent, 

id. at 288–289, and ignored by the majority. 182Kent v. Dulles, 357 U.S. 116, 129 (1958). 183Kent v. Dulles, 357 U.S. 116 (1958); Schneider v. Smith, 390 U.S. 17 (1968); 

Greene v. McElroy, 360 U.S. 474, 506-08 (1959) (Court will not follow traditional 

principles of congressional acquiescence in administrative interpretation to infer a 

delegation of authority to impose an industrial security clearance program that 

lacks the safeguards of due process). More recently, the Court has eschewed even 

this limited mode of construction. Haig v. Agee, 453 U. S. 280 (1981). 184 Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (5–to–4 decision). The regulation was reissued by the President, E. O. 11935, 3 C.F.R. 146 (1976), reprinted 

in 5 U.S.C. § 3301 (app.), and sustained in Vergara v. Hampton, 581 F. 2d 1281 

(7th Cir. 1978). 185Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 159–166 (1926); M. DIMOCK, CONGRESSIONAL INVESTIGATING COMMITTEES ch. 2 (1929). 

Delegation and Individual Liberties.—It has been argued 

in separate opinions by some Justices that delegations by Congress 

of power to affect the exercise of ‘‘fundamental freedoms’’ by citizens must be closely scrutinized to require the exercise of a congressional judgment about meaningful standards. 181 The only pronouncement in a majority opinion, however, is that even with regard to the regulation of liberty the standards of the delegation 

‘‘must be adequate to pass scrutiny by the accepted tests.’’ 182 The

standard practice of the Court has been to interpret the delegation 

narrowly so as to avoid constitutional problems. 183

Perhaps refining the delegation doctrine, at least in cases 

where Fifth Amendment due process interests are implicated, the 

Court held that a government agency charged with the efficient administration of the executive branch could not assert the broader 

interests that Congress or the President might have in barring lawfully resident aliens from government employment. The agency 

could assert only those interests Congress charged it with promoting, and if the action could be justified by other interests, the 

office with responsibility for promoting those interests must take 

the action. 184

CONGRESSIONAL INVESTIGATIONS 

Source of the Power to Investigate 

No provision of the Constitution expressly authorizes either 

House of Congress to make investigations and exact testimony to 

the end that it may exercise its legislative functions effectively and 

advisedly. But such a power had been frequently exercised by the 

British Parliament and by the Assemblies of the American Colonies 

prior to the adoption of the Constitution. 185 It was asserted by the 

House of Representatives as early as 1792 when it appointed a 

94 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

186 3 ANNALS OF CONGRESS 490–494 (1792); 3 A. HINDS’ PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES 1725 (1907). 187McGrain v. Daugherty, 273 U.S. 135, 174–175 (1927). 188Watkins v. United States, 354 U.S. 178, 187 (1957). 

committee to investigate the defeat of General St. Clair and his 

army by the Indians in the Northwest and empowered it to ‘‘call 

for such persons, papers, and records, as may be necessary to assist 

their inquiries.’’ 186

The Court has long since accorded its agreement with Congress 

that the investigatory power is so essential to the legislative function as to be implied from the general vesting of legislative power 

in Congress. ‘‘We are of the opinion,’’ wrote Justice Van Devanter, 

for a unanimous Court, ‘‘that the power of inquiry—with process to 

enforce it—is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which 

the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information—which 

not infrequently is true—recourse must be had to others who possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that 

period the power of inquiry—with enforcing process—was regarded 

and employed as a necessary and appropriate attribute of the 

power to legislate—indeed, was treated as inhering in it. Thus 

there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two 

houses are intended to include this attribute to the end that the 

function may be effectively exercised.’’ 187

And in a 1957 opinion generally hostile to the exercise of the 

investigatory power in the post-War years, Chief Justice Warren 

did not question the basic power. ‘‘The power of the Congress to 

conduct investigations is inherent in the legislative process. That 

power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy 

them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.’’ 188 Justice

Harlan summarized the matter in 1959. ‘‘The power of inquiry has 

been employed by Congress throughout our history, over the whole 

range of the national interests concerning which Congress might 

ART. I—LEGISLATIVE DEPARTMENT 95

Sec. 1—The Congress Legislative Powers 

189 Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Eastland v. 

United States Servicemen’s Fund, 421 U.S. 491, 503–507 (1975). 190Kilbourn v. Thompson, 103 U.S. 168, 189 (1881). 191McGrain v. Daugherty, 273 U.S. 135, 170 (1927). The internal quotations are 

from Kilbourn v. Thompson, 103 U.S. 168, 190, 193 (1881). 192 In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed a letter to 

the House of Representatives advising them of his resignation from office and inviting an investigation of his office. Such an inquiry was made. 10 ANNALS OF CONGRESS 786–788 (1800). 193 8 CONG. DEB. 2160 (1832). 

legislate or decide upon due investigation not to legislate; it has 

similarly been utilized in determining what to appropriate from the 

national purse, or whether to appropriate. The scope of the power 

of inquiry, in short, is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.’’ 189

Broad as the power of inquiry is, it is not unlimited. The power 

of investigation may properly be employed only ‘‘in aid of the legislative function.’’ 190 Its outermost boundaries are marked, then, by 

the outermost boundaries of the power to legislate. In principle, the 

Court is clear on the limitations, clear ‘‘that neither house of Congress possesses a ‘general power of making inquiry into the private 

affairs of the citizen’; that the power actually possessed is limited 

to inquiries relating to matters of which the particular house ‘has 

jurisdiction’ and in respect of which it rightfully may take other action; that if the inquiry relates to ‘a matter wherein relief or redress could be had only by a judicial proceeding’ it is not within 

the range of this power, but must be left to the courts, conformably 

to the constitutional separation of governmental powers; and that 

for the purpose of determining the essential character of the inquiry recourse must be had to the resolution or order under which 

it is made.’’ 191

In practice, much of the litigated dispute has been about the 

reach of the power to inquire into the activities of private citizens; 

inquiry into the administration of laws and departmental corruption, while of substantial political consequence, has given rise to 

fewer judicial precedents. 

Investigations of Conduct of Executive Department 

For many years the investigating function of Congress was limited to inquiries into the administration of the Executive Department or of instrumentalities of the Government. Until the administration of Andrew Jackson this power was not seriously challenged. 192 During the controversy over renewal of the charter of 

the Bank of the United States, John Quincy Adams contended that 

an unlimited inquiry into the operations of the bank would be beyond the power of the House. 193 Four years later the legislative 

96 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

194 13 CONG. DEB. 1057–1067 (1836). 

195 H. R. Rep. No. 194, 24th Congress, 2d sess., 1, 12, 31 (1837). 

196 CONG. GLOBE, 36th Congress, 1st sess., 1100–1109 (1860). 

197 103 U.S. 168 (1881). 

198The Court held that inasmuch as the entire proceedings arising out of the 

bankruptcy were pending in court, as the authorizing resolution contained no suggestion of contemplated legislation, as in fact no valid legislation could be enacted 

on the subject, and as the only relief which the United States could seek was judicial relief in the bankruptcy proceeding, the House had exceeded its powers in authorizing the inquiry. But see Hutcheson v. United States, 369 U.S. 599 (1962). 

199 273 U.S. 135, 177, 178 (1927). 

200We consider elsewhere the topic of executive privilege, the claimed right of 

the President and at least some of his executive branch officers to withhold from 

Congress information desired by it or by one of its committees. Although the issue 

has been one of contention between the two branches of Government since Washington’s refusal in 1796 to submit certain correspondence to the House of Representatives relating to treaty negotiations, it has only recently become a judicial issue. 

power of investigation was challenged by the President. A committee appointed by the House of Representatives ‘‘with power to 

send for persons and papers, and with instructions to inquire into 

the condition of the various executive departments, the ability and 

integrity with which they have been conducted, . . .’’ 194 called upon 

the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid 

to them. Resentful of this attempt ‘‘to invade the just rights of the 

Executive Departments,’’ the President refused to comply and the 

majority of the committee acquiesced. 195 Nevertheless, congressional investigations of Executive Departments have continued to 

the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown’s raid upon the arsenal at Harper’s Ferry occasioned a thorough consideration by the Senate of the basis of this 

power. After a protracted debate, which cut sharply across sectional and party lines, the Senate voted overwhelmingly to imprison the contumacious witness. 196 Notwithstanding this firmly 

established legislative practice, the Supreme Court took a narrow 

view of the power in the case of Kilbourn v. Thompson. 197 It held 

that the House of Representatives had overstepped its jurisdiction 

when it instituted an investigation of losses suffered by the United 

States as a creditor of Jay Cooke and Company, whose estate was 

being administered in bankruptcy by a federal court. 198 But nearly 

half a century later, in McGrain v. Daugherty, 199 it ratified in 

sweeping terms, the power of Congress to inquire into the administration of an executive department and to sift charges of malfeasance in such administration. 200

ART. I—LEGISLATIVE DEPARTMENT 97

Sec. 1—The Congress Legislative Powers 

201 In re Chapman, 166 U.S. 661 (1897). 202 279 U.S. 597 (1929). 203 4 CONG. DEB. 862, 868, 888, 889 (1827). 204Kilbourn v. Thompson, 103 U.S. 168 (1881). 205 In re Chapman, 166 U.S. 661, 670 (1897). 206 273 U.S. 135, 178 (1927). 207 279 U.S. 263 (1929). 

Investigations of Members of Congress 

When either House exercises a judicial function, as in judging 

of elections or determining whether a member should be expelled, 

it is clearly entitled to compel the attendance of witnesses to disclose the facts upon which its action must be based. Thus, the 

Court held that since a House had a right to expel a member for 

any offense which it deemed incompatible with his trust and duty 

as a member, it was entitled to investigate such conduct and to 

summon private individuals to give testimony concerning it. 201 The

decision in Barry v. United States ex rel. Cunningham 202 sanctioned the exercise of a similar power in investigating a senatorial 

election.

Investigations in Aid of Legislation 

Purpose.—Beginning with the resolution adopted by the 

House of Representatives in 1827, which vested its Committee on 

Manufactures ‘‘with the power to send for persons and papers with 

a view to ascertain and report to this House in relation to a revision of the tariff duties on imported goods,’’ 203 the two Houses have 

asserted the right to collect information from private persons as 

well as from governmental agencies when necessary to enlighten 

their judgment on proposed legislation. The first case to review the 

assertion saw a narrow view of the power taken and the Court held 

that the purpose of the inquiry was to pry improperly into private 

affairs without any possibility of legislating on the basis of what 

might be learned and further that the inquiry overstepped the 

bounds of legislative jurisdiction and invaded the provinces of the 

judiciary. 204

Subsequent cases, however, have given the Congress the benefit of a presumption that its object is legitimate and related to the 

possible enactment of legislation. Shortly after Kilbourn, the Court 

declared that ‘‘it was certainly not necessary that the resolution 

should declare in advance what the Senate meditated doing when 

the investigation was concluded’’ in order that the inquiry be under 

a lawful exercise of power. 205 Similarly, in McGrain v. 

Daugherty, 206 the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating. Then, in Sinclair v. United States, 207 on its facts presenting a close parallel to 

98 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

208 279 U.S. at 295. 209 279 U.S. at 294. 210The first case so holding is ICC v. Brimson, 154 U.S. 447 (1894), which asserts that inasmuch as Congress could itself have made the inquiry to appraise its 

regulatory activities it could delegate the power of inquiry to the agency to which 

it had delegated the regulatory function. 211Watkins v. United States, 354 U.S. 178, 195 (1957). 212See Dennis v. United States, 341 U.S. 494 (1951); Barenblatt v. United 

States, 360 U.S. 109, 127 (1959); American Communications Ass’n v. Douds, 339 

U.S. 382 (1950). 

Kilbourn, the Court affirmed the right of the Senate to carry out 

investigations of fraudulent leases of government property after 

suit for recovery had been instituted. The president of the lessee 

corporation had refused to testify on the ground that the questions 

related to his private affairs and to matters cognizable only in the 

courts wherein they were pending, asserting that the inquiry was 

not actually in aid of legislation. The Senate had prudently directed the investigating committee to ascertain what, if any, legislation might be advisable. Conceding ‘‘that Congress is without authority to compel disclosures for the purpose of aiding the prosecution of pending suits,’’ the Court declared that the authority ‘‘to require pertinent disclosures in aid of its own constitutional power is 

not abridged because the information sought to be elicited may also 

be of use in such suits.’’ 208

While Sinclair and McGrain involved inquiries into the activities and dealings of private persons, these activities and dealings 

were in connection with property belonging to the United States 

Government, so that it could hardly be said that the inquiries concerned the merely personal or private affairs of any individual. 209

But where the business, the activities and conduct, the behavior of 

individuals are subject to congressional regulation, there exists the 

power of inquiry, 210 and in practice the areas of any individual’s 

life immune from inquiry are probably fairly limited. ‘‘In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the 

threat of subversion of the United States Government, but other 

subjects of congressional interest also contributed to the changed 

scene. This new phase of legislative inquiry involved a broad-scale 

intrusion into the lives and affairs of private citizens.’’ 211 Inasmuch

as Congress clearly has power to legislate to protect the Nation and 

its citizens from subversion, espionage, and sedition, 212 it has 

power to inquire into the existence of the dangers of domestic or 

foreign-based subversive activities in many areas of American 

ART. I—LEGISLATIVE DEPARTMENT 99

Sec. 1—The Congress Legislative Powers 

213 Barenblatt v. United States, 360 U.S. 109, 129–132 (1959); Deutch v. United 

States, 367 U.S. 456 (1961); cf. Sweezy v. New Hampshire, 354 U.S. 234 (1957) 

(state inquiry). 214Watkins v. United States, 354 U.S. 178 (1957); Flaxer v. United States, 358 

U.S. 147 (1958); Wilkinson v. United States, 365 U.S. 399 (1961). 215McPhaul v. United States, 364 U.S. 372 (1960). 216 Hutcheson v. United States, 369 U.S. 599 (1962). 217Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393 

U.S. 1024 (1969). 218Watkins v. United States, 354 U.S. 178, 200 (1957). The Chief Justice, however, noted: ‘‘We are not concerned with the power of the Congress to inquire into 

and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: ‘The informing function of Congress should 

be preferred even to its legislative function.’ Id. at 303. From the earliest times in 

its history, the Congress has assiduously performed an ‘informing function’ of this 

nature.’’ Id. at 200 n. 33. 

In his book, Wilson continued, following the sentence quoted by the Chief Justice: ‘‘The argument is not only that discussed and interrogated administration is 

the only pure and efficient administration, but, more than that, that the only really 

self-governing people is that people which discusses and interrogates its administration. . . . It would be hard to conceive of there being too much talk about the practical 

concerns . . . of government.’’ Congressional Government (1885), 303–304. For contrasting views of the reach of this statement, compare United States v. Rumely, 345 

U.S. 41, 43 (1953), with Russell v. United States, 369 U.S. 749, 777–778 (1962) (Justice Douglas dissenting). 219 Barenblatt v. United States, 360 U.S. 109, 153–162, 166 (1959); Wilkinson 

v. United States, 365 U.S. 399, 415, 423 (1961); Braden v. United States, 365 U.S. 

431, 446 (1961); but see DeGregory v. Attorney General, 383 U.S. 825 (1966) (a state 

investigative case). 

life—in education, 213 in labor and industry, 214 and other areas. 215

Because its powers to regulate interstate commerce afford Congress 

the power to regulate corruption in labor-management relations, 

congressional committees may inquire into the extent of corruption 

in labor unions. 216 Because of its powers to legislate to protect the 

civil rights of its citizens, Congress may investigate organizations 

which allegedly act to deny those civil rights. 217 It is difficult in 

fact to conceive of areas into which congressional inquiry might not 

be carried, which is not the same, of course, as saying that the exercise of the power is unlimited. 

One limitation on the power of inquiry which has been much 

discussed in the cases concerns the contention that congressional 

investigations often have no legislative purpose but rather are 

aimed at achieving results through ‘‘exposure’’ of disapproved persons and activities: ‘‘We have no doubt,’’ wrote Chief Justice Warren, ‘‘that there is no congressional power to expose for the sake 

of exposure.’’ 218 Although some Justices, always in dissent, have 

attempted to assert limitations in practice based upon this concept, 

the majority of Justices has adhered to the traditional precept that 

courts will not inquire into legislators’ motives but will look 219 only

100 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

220 ‘‘Legislative committees have been charged with losing sight of their duty of 

disinterestedness. In times of political passion, dishonest or vindicative motives are 

readily attributable to legislative conduct and as readily believed. Courts are not the 

place for such controversies.’’ Tenney v. Brandhove, 341 U.S. 367, 377–378 (1951). 

For a statement of the traditional unwillingness to inquire into congressional motives in the judging of legislation, see United States v. O’Brien, 391 U.S. 367, 382– 

386 (1968). But note that in Jenkins v. McKeithen, 395 U.S. 411 (1969), in which 

the legislation establishing a state crime investigating commission clearly authorized the commission to designate individuals as law violators, due process was violated by denying witnesses the rights existing in adversary criminal proceedings. 221 Barenblatt v. United States, 360 U.S. 109, 132 (1959). 222 United States v. Rumely, 345 U.S. 41, 44 (1953). 223 354 U.S. 178, 201 (1957). 224The Committee has since been abolished. 225Watkins v. United States, 354 U.S. 178, 202 (1957). 226 360 U.S. 109 (1959). 227 360 U.S. at 117–18. 

to the question of power. 220 ‘‘So long as Congress acts in pursuance 

of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that 

power.’’ 221

Protection of Witnesses; Pertinency and Related Matters.—A witness appearing before a congressional committee is entitled to require of the committee a demonstration of its authority 

to inquire with regard to his activities and a showing that the 

questions asked of him are pertinent to the committee’s area of inquiry. A congressional committee possesses only those powers delegated to it by its parent body. The enabling resolution that has 

given it life also contains the grant and limitations of the committee’s power. 222 In Watkins v. United States, 223 Chief Justice Warren cautioned that ‘‘[b]roadly drafted and loosely worded . . . resolutions can leave tremendous latitude to the discretion of the investigators. The more vague the committee’s charter is, the greater becomes the possibility that the committee’s specific actions are not 

in conformity with the will of the parent House of Congress.’’ 

Speaking directly of the authorizing resolution, which created the 

House Un-American Activities Committee, 224 the Chief Justice 

thought it ‘‘difficult to imagine a less explicit authorizing resolution.’’ 225 But the far-reaching implications of these remarks were 

circumscribed by Barenblatt v. United States, 226 in which the 

Court, ‘‘[g]ranting the vagueness of the Rule,’’ noted that Congress 

had long since put upon it a persuasive gloss of legislative history 

through practice and interpretation, which, read with the enabling 

resolution, showed that ‘‘the House has clothed the Un-American 

Activities Committee with pervasive authority to investigate Communist activities in this country.’’ 227 ‘‘[W]e must conclude that [the 

Committee’s] authority to conduct the inquiry presently under conVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00038 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 101

Sec. 1—The Congress Legislative Powers 

228 360 U.S. at 122–23. But note that in Stamler v. Willis, 415 F. 2d 1365 (7th 

Cir. 1969), cert. denied, 399 U.S. 929 (1970), the court ordered to trial a civil suit 

contesting the constitutionality of the Rule establishing the Committee on allegations of overbreadth and overbroad application, holding that Barenblatt did not foreclose the contention. 229 But see Tobin v. United States, 306 F. 2d 270 (D.C. Cir. 1962), cert. denied, 371 U.S. 902 (1962). 

230 345 U.S. 41 (1953). 231The Court intimated that if the authorizing resolution did confer such power 

upon the committee, the validity of the resolution would be subject to doubt on First 

Amendment principles. Justices Black and Douglas would have construed the resolution as granting the authority and would have voided it under the First Amendment. 345 U.S. at 48 (concurring opinion). 232 384 U.S. 702 (1966). 233 354 U.S. 178 (1957). 

sideration is unassailable, and that . . . the Rule cannot be said to 

be constitutionally infirm on the score of vagueness.’’ 228

Because of the usual precision with which authorizing resolutions have generally been drafted, few controversies have arisen 

about whether a committee has projected its inquiry into an area 

not sanctioned by the parent body. 229 But in United States v. 

Rumely, 230 the Court held that the House of Representatives, in 

authorizing a select committee to investigate lobbying activities devoted to the promotion or defeat of legislation, did not thereby intend to empower the committee to probe activities of a lobbyist that 

were unconnected with his representations directly to Congress but 

rather designed to influence public opinion by distribution of literature. Consequently the committee was without authority to compel the representative of a private organization to disclose the 

names of all who had purchased such literature in quantity. 231

Still another example of lack of proper authority is Gojack v. 

United States, 232 in which the Court reversed a contempt citation 

because there was no showing that the parent committee had delegated to the subcommittee before whom the witness had appeared 

the authority to make the inquiry and neither had the full committee specified the area of inquiry. 

Watkins v. United States, 233 remains the leading case on 

pertinency, although it has not the influence on congressional investigations that some hoped and some feared in the wake of its 

announcement. When questioned by a Subcommittee of the House 

Un-American Activities Committee, Watkins refused to supply the 

names of past associates, who, to his knowledge, had terminated 

their membership in the Communist Party and supported his noncompliance by, inter alia, contending that the questions were unrelated to the work of the Committee. Sustaining the witness, the 

Court emphasized that inasmuch as a witness by his refusal exposes himself to a criminal prosecution for contempt, he is entitled 

102 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

234 354 U.S. at 208–09. 235 354 U.S. at 209–15. 236 Id. See also Sacher v. United States, 356 U.S. 576 (1958), a per curiam reversal of a contempt conviction on the ground that the questions did not relate to a 

subject ‘‘within the subcommittee’s scope of inquiry,’’ arising out of a hearing pertaining to a recantation of testimony by a witness in which the inquiry drifted into 

a discussion of legislation barring Communists from practice at the federal bar, the 

unanswered questions being asked then; and Flaxer v. United States, 358 U.S. 147 

(1958), a reversal for refusal to produce membership lists because of an ambiguity 

in the committee’s ruling on the time of performance; and Scull v. Virginia ex rel. 

Committee, 359 U.S. 344 (1959), a reversal on a contempt citation before a state 

legislative investigating committee on pertinency grounds. 237 Notice should be taken, however, of two cases which, though decided four 

and five years after Watkins, involved persons who were witnesses before the UnAmerican Activities Committee either shortly prior to or shortly following Watkins’ 

appearance and who were cited for contempt before the Supreme Court decided 

Watkins’ case. 

In Deutch v. United States, 367 U.S. 456 (1961), involving an otherwise cooperative witness who had refused to identify certain persons with whom he had been 

to be informed of the relation of the question to the subject of the 

investigation with the same precision as the due process clause requires of statutes defining crimes. 234

For ascertainment of the subject matter of an investigation, 

the witness might look, noted the Court, to several sources, including (1) the authorizing resolution, (2) the resolution by which the 

full committee authorized the subcommittee to proceed, (3) the introductory remarks of the chairman or other members, (4) the nature of the proceedings, (5) the chairman’s response to the witness 

when the witness objects to the line of question on grounds of 

pertinency. 235 Whether a precise delineation of the subject matter 

of the investigation in but one of these sources would satisfy the 

requirements of due process was left unresolved, since the Court 

ruled that in this case all of them were deficient in providing Watkins with the guidance to which he was entitled. The sources had 

informed Watkins that the questions were asked in a course of investigation of something that ranged from a narrow inquiry into 

Communist infiltration into the labor movement to a vague and unlimited inquiry into ‘‘subversion and subversive propaganda.’’ 236

By and large, the subsequent cases demonstrated that Watkins did not represent a determination by the Justices to restrain 

broadly the course of congressional investigations, though several 

contempt citations were reversed on narrow holdings. But with regard to pertinency, the implications of Watkins were held in check 

and, without amending its rules or its authorizing resolution, the 

Un-American Activities Committee was successful in convincing a 

majority of the Court that its subsequent investigations were authorized and that the questions asked of recalcitrant witnesses 

were pertinent to the inquiries. 237

ART. I—LEGISLATIVE DEPARTMENT 103

Sec. 1—The Congress Legislative Powers 

associated at Cornell in Communist Party activities, the Court agreed that Deutch 

had refused on grounds of moral scruples to answer the questions and had not challenged them as not pertinent to the inquiry, but the majority ruled that the Government had failed to establish at trial the pertinency of the questions, thus vitiating 

the conviction. Justices Frankfurter, Clark, Harlan, and Whittaker dissented, arguing that any argument on pertinency had been waived but in any event thinking 

it had been established. Id. at 472, 475. 

In Russell v. United States, 369 U.S. 749 (1962), the Court struck down contempt convictions for insufficiency of the indictments. Indictments, which merely set 

forth the offense in the words of the contempt statute, the Court asserted, in alleging that the unanswered questions were pertinent to the subject under inquiry but 

not identifying the subject in detail, are defective because they do not inform defendants what they must be prepared to meet and do not enable courts to decide 

whether the facts alleged are sufficient to support convictions. Justice Stewart for 

the Court noted that the indicia of subject matter under inquiry were varied and 

contradictory, thus necessitating a precise governmental statement of particulars. 

Justices Harlan and Clark in dissent contended that it was sufficient for the Government to establish pertinency at trial and noted that no objections relating to 

pertinency had been made at the hearings. Id. at 781, 789–793. Russell was cited 

in the per curiam reversals in Grumman v. United States, 370 U.S. 288 (1962), and 

Silber v. United States, 370 U.S. 717 (1962). 

238 360 U.S. 109 (1959). 

239 365 U.S. 399 (1961). 

240 Braden v. United States, 365 U.S. 431 (1961). 

Thus, in Barenblatt v. United States, 238 the Court concluded 

that the history of the Un-American Activities Committee’s activities, viewed in conjunction with the Rule establishing it, evinced 

clear investigatory authority to inquire into Communist infiltration 

in the field of education, an authority with which the witness had 

shown familiarity. Additionally, the opening statement of the chairman had pinpointed that subject as the nature of the inquiry that 

day and the opening witness had testified on the subject and had 

named Barenblatt as a member of the Communist Party at the 

University of Michigan. Thus, pertinency and the witness’ knowledge of the pertinency of the questions asked him was shown. Similarly, in Wilkinson v. United States, 239 the Court held that when 

the witness was apprised at the hearing that the Committee was 

empowered to investigate Communist infiltration of the textile industry in the South, that it was gathering information with a view 

to ascertaining the manner of administration and need to amend 

various laws directed at subversive activities, that Congress hitherto had enacted many of its recommendations in this field, and 

that it was possessed of information about his Party membership, 

he was notified effectively that a question about that affiliation was 

relevant to a valid inquiry. A companion case was held to be controlled by Wilkinson, 240 and in both cases the majority rejected the 

contention that the Committee inquiry was invalid because both 

104 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

241The majority denied that the witness’ participation in a lawful and protected 

course of action, such as petitioning Congress to abolish the Committee, limited the 

Committee’s right of inquiry. ‘‘[W]e cannot say that, simply because the petitioner 

at the moment may have been engaged in lawful conduct, his Communist activities 

in connection therewith could not be investigated. The subcommittee had reasonable 

ground to suppose that the petitioner was an active Communist Party member, and 

that as such he possessed information that would substantially aid it in its legislative investigation. As the Barenblatt opinion makes clear, it is the nature of the 

Communist activity involved, whether the momentary conduct is legitimate or illegitimate politically, that establishes the Government’s overbalancing interest.’’ 

Wilkinson v. United States, 365 U.S. 399, 414 (1961). In both cases, the dissenters, 

Chief Justice Warren and Justices Black, Douglas, and Brennan argued that the 

Committee action was invalid because it was intended to harass persons who had 

publicly criticized committee activities. Id. at 415, 423, 429. 242 374 U.S. 109 (1963). 243Failure to follow its own rules was again an issue in Gojack v. United States, 

384 U.S. 702 (1966), in which the Court noted that while a committee rule required 

the approval of a majority of the Committee before a ‘‘major’’ investigation was initiated, such approval had not been sought before a Subcommittee proceeded. 244 In Christoffel v. United States, 338 U.S. 84 (1949), the Court held that a witness can be found guilty of perjury only where a quorum of the committee is present 

at the time the perjury is committed; it is not enough to prove that a quorum was 

present when the hearing began. But in United States v. Bryan, 339 U.S. 323 

(1950), the Court ruled that a quorum was not required under the statute punishing 

refusal to honor a valid subpoena issued by an authorized committee. 245 Barenblatt v. United States, 360 U.S. 109, 112 (1959). 

Wilkinson and Braden, when they were called, were engaged in organizing activities against the Committee. 241

Related to the cases discussed in this section are those cases 

requiring that congressional committees observe strictly their own 

rules. Thus, in Yellin v. United States, 242 a contempt conviction 

was reversed because the Committee had failed to observe its rule 

providing for a closed session if a majority of the Committee believed that a witness’ appearance in public session might unjustly 

injure his reputation. The Court ruled that the Committee had ignored the rule when it subpoenaed the witness for a public hearing 

and then in failing to consider as a Committee his request for a 

closed session. 243

Finally, it should be noted that the Court has blown hot and 

cold on the issue of a quorum as a prerequisite to a valid contempt 

citation and that no firm statement of a rule is possible, although 

it seems probable that ordinarily no quorum is necessary. 244

Protection of Witnesses; Constitutional Guarantees.—

‘‘[T]he Congress, in common with all branches of the Government, 

must exercise its powers subject to the limitations placed by the 

Constitution on governmental action, more particularly in the context of this case, the relevant limitations of the Bill of Rights.’’ 245

Just as the Constitution places limitations on Congress’ power to 

legislate, so it limits the power to investigate. In this section, we 

ART. I—LEGISLATIVE DEPARTMENT 105

Sec. 1—The Congress Legislative Powers 

246 360 U.S. at 126; Watkins v. United States, 354 U.S. 178, 196 (1957); Quinn 

v. United States, 349 U.S. 155, 161 (1955). 247Quinn v. United States, 349 U.S. 155 (1955). 248 Emspak v. United States, 349 U.S. 190 (1955). 249 Bart v. United States, 349 U.S. 219 (1955). 250McPhaul v. United States, 364 U.S. 372 (1960). 251 369 U.S. 599 (1962). 

are concerned with the limitations the Bill of Rights places on the 

scope and nature of the congressional power to inquire. 

The most extensive amount of litigation in this area has involved the privilege against self-incrimination guaranteed against 

governmental abridgment by the Fifth Amendment. Observance of 

the privilege by congressional committees has been so uniform that 

no court has ever held that it must be observed, though the dicta 

are plentiful. 246 Thus, the cases have explored not the issue of the 

right to rely on the privilege but rather the manner and extent of 

its application. 

There is no prescribed form in which one must plead the privilege. When a witness refused to answer a question about Communist Party affiliations and based his refusal upon the assertion 

by a prior witness of ‘‘the first amendment supplemented by the 

fifth,’’ the Court held that he had sufficiently invoked the privilege, 

at least in the absence of committee inquiry seeking to force him 

to adopt a more precise stand. 247 If the committee suspected that 

the witness was being purposely vague, in order perhaps to avoid 

the stigma attached to a forthright claim of the privilege, it should 

have requested him to state specifically the ground of his refusal 

to testify. Another witness, who was threatened with prosecution 

for his Communist activities, could claim the privilege even to some 

questions the answers to which he might have been able to explain 

away as unrelated to criminal conduct; if an answer might tend to 

be incriminatory, the witness is not deprived of the privilege merely because he might have been able to refute inferences of guilt. 248

In still another case, the Court held that the Committee had not 

clearly overruled the claim of privilege and directed an answer. 249

The privilege against self-incrimination is not available as a 

defense to an organizational officer who refuses to turn over organization documents and records to an investigating committee. 250

In Hutcheson v. United States, 251 the Court rejected a challenge to a Senate Committee inquiry into union corruption on the 

part of a witness who was under indictment in state court on 

charges relating to the same matters about which the Committee 

sought to interrogate him. The witness did not plead his privilege 

against self-incrimination but contended that by questioning him 

about matters which would aid the state prosecutor the Committee 

106 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

252 Justice Harlan wrote the opinion of the Court which Justices Clark and 

Stewart joined. Justice Brennan concurred solely because the witness had not 

claimed the privilege against self-incrimination but he would have voted to reverse 

the conviction had there been a claim. Chief Justice Warren and Justice Douglas 

dissented on due process grounds. Justices Black, Frankfurter, and White did not 

participate. At the time of the decision, the self-incrimination clause did not restrain 

the States through the Fourteenth Amendment so that it was no violation of the 

clause for either the Federal Government or the States to compel testimony which 

would incriminate the witness in the other jurisdiction. Cf. United States v. 

Murdock, 284 U.S. 141 (1931); Knapp v. Schweitzer, 357 U.S. 371 (1958). The Court 

has since reversed itself, Malloy v. Hogan, 378 U.S. 1 (1964); Murphy v. Waterfront 

Comm’n, 378 U.S. 52 (1964), thus leaving the vitality of Hutcheson doubtful. 253The matter is discussed fully in the section on the First Amendment but a 

good statement of the balancing rule may be found in Younger v. Harris, 401 U.S. 

37, 51 (1971), by Justice Black, supposedly an absolutist on the subject: ‘‘Where a 

statute does not directly abridge free speech, but—while regulating a subject within 

the State’s power—tends to have the incidental effect of inhibiting First Amendment 

rights, it is well settled that the statute can be upheld if the effect on speech is 

minor in relation to the need for control of the conduct and the lack of alternative 

means for doing so.’’ 254 Barenblatt v. United States, 360 U.S. 109, 126 (1959). 255 Barenblatt v. United States, 360 U.S. 109 (1959). 256Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 

365 U.S. 431 (1961). 

had denied him due process. The plurality opinion of the Court rejected his ground for refusing to answer, noting that if the Committee’s public hearings rendered the witness’ state trial unfair, then 

he could properly raise that issue on review of his state conviction. 252

Claims relating to the First Amendment have been frequently 

asserted and as frequently denied. It is not that the First Amendment is inapplicable to congressional investigations, it is that 

under the prevailing Court interpretation the First Amendment 

does not bar all legislative restrictions of the rights guaranteed by 

it. 253 ‘‘[T]he protections of the First Amendment, unlike a proper 

claim of the privilege against self-incrimination under the Fifth 

Amendment, do not afford a witness the right to resist inquiry in 

all circumstances. Where First Amendment rights are asserted to 

bar governmental interrogation, resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.’’ 254

Thus, the Court has declined to rule that under the circumstances of the cases investigating committees are precluded 

from making inquiries simply because the subject area was education 255 or because the witnesses at the time they were called 

were engaged in protected activities such as petitioning Congress 

to abolish the inquiring committee. 256 However, in an earlier case, 

the Court intimated that it was taking a narrow view of the committee’s authority because a determination that authority existed 

ART. I—LEGISLATIVE DEPARTMENT 107

Sec. 1—The Congress Legislative Powers 

257 United States v. Rumely, 345 U.S. 41 (1953). 258Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963). 

See also DeGregory v. Attorney General, 383 U.S. 825 (1966). 259Watkins v. United States, 354 U.S. 178, 188 (1957). 260See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), and 

cases cited. 261 Cf. McPhaul v. United States, 364 U.S. 372 (1960). 262 273 U.S. 135 (1927). 263 19 U.S. (6 Wheat.) 204 (1821). 264The contempt consisted of an alleged attempt to bribe a Member of the 

House for his assistance in passing a claims bill. The case was a civil suit brought 

by Anderson against the Sergeant at Arms of the House for assault and battery and 

false imprisonment. Cf. Kilbourn v. Thompson, 103 U.S. 168 (1881). The power of 

a legislative body to punish for contempt one who disrupts legislative business was 

reaffirmed in Groppi v. Leslie, 404 U.S. 496 (1972), but a unanimous Court there 

held that due process required a legislative body to give a contemnor notice and an 

opportunity to be heard prior to conviction and sentencing. Although this case dealt 

with a state legislature, there is no question it would apply to Congress as well. 265 243 U.S. 521 (1917). 

would raise a serious First Amendment issue. 257 And in a state 

legislative investigating committee case, the majority of the Court 

held that an inquiry seeking the membership lists of the National 

Association for the Advancement of Colored People was so lacking 

in a ‘‘nexus’’ between the organization and the Communist Party 

that the inquiry infringed the First Amendment. 258

Dicta in the Court’s opinions acknowledge that the Fourth 

Amendment guarantees against unreasonable searches and seizures are applicable to congressional committees. 259 The issue 

would most often arise in the context of subpoenas, inasmuch as 

that procedure is the usual way by which committees obtain documentary material and inasmuch as Fourth Amendment standards 

apply as well to subpoenas as to search warrants. 260 But there are 

no cases in which a holding turns on this issue. 261

Other constitutional rights of witnesses have been asserted at 

various times, but without success or even substantial minority 

support.

Sanctions of the Investigatory Power: Contempt 

Explicit judicial recognition of the right of either House of Congress to commit for contempt a witness who ignores its summons 

or refuses to answer its inquiries dates from McGrain v. 

Daugherty. 262 But the principle there applied had its roots in an 

early case, Anderson v. Dunn, 263 which stated in broad terms the 

right of either branch of the legislature to attach and punish a person other than a member for contempt of its authority. 264 The right 

to punish a contumacious witness was conceded in Marshall v. Gordon, 265 although the Court there held that the implied power to 

108 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 1—The Congress Legislative Powers 

266 243 U.S. at 542. 267 294 U.S. 125 (1935). 268 294 U.S. at 150. 269 19 U.S. (6 Wheat.) 204 (1821). 270 Act of January 24, 1857, 11 Stat. 155. With only minor modification, this 

statute is now 2 U.S.C. § 192. 271 In re Chapman, 166 U.S. 661, 671–672 (1897). 

deal with contempt did not extend to the arrest of a person who 

published matter defamatory of the House. 

The cases emphasize that the power to punish for contempt 

rests upon the right of self-preservation. That is, in the words of 

Chief Justice White, ‘‘the right to prevent acts which in and of 

themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed’’ necessitates the contempt power. 266 Thus, in Jurney v. 

MacCracken, 267 the Court turned aside an argument that the Senate had no power to punish a witness who, having been commanded to produce papers, destroyed them after service of the subpoena. The punishment would not be efficacious in obtaining the 

papers in this particular case, but the power to punish for a past 

contempt is an appropriate means of vindicating ‘‘the established 

and essential privilege of requiring the production of evidence.’’ 268

Under the rule laid down by Anderson v. Dunn, 269 imprisonment by one of the Houses of Congress could not extend beyond the 

adjournment of the body which ordered it. Because of this limitation and because contempt trials before the bar of the House charging were time-consuming, in 1857 Congress enacted a statute providing for criminal process in the federal courts with prescribed 

penalties for contempt of Congress. 270

The Supreme Court has held that the purpose of this statute 

is merely supplementary of the power retained by Congress, and all 

constitutional objections to it were overruled. ‘‘We grant that Congress could not divest itself, or either of its Houses, of the essential 

and inherent power to punish for contempt, in cases to which the 

power of either House properly extended; but because Congress, by 

the Act of 1857, sought to aid each of the Houses in the discharge 

of its constitutional functions, it does not follow that any delegation 

of the power in each to punish for contempt was involved.’’ 271

Because Congress has invoked the aid of the federal judicial 

system in protecting itself against contumacious conduct, the consequence, the Court has asserted numerous times, is that the duty 

has been conferred upon the federal courts to accord a person prosecuted for his statutory offense every safeguard which the law acVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00046 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 109

Sec. 2—House of Representatives Cl. 1—Congressional Districting 

272Sinclair v. United States, 279 U.S. 263, 296–297 (1929); Watkins v. United 

States, 354 U.S. 178, 207 (1957); Sacher v. United States, 356 U.S. 576, 577 (1958); 

Flaxer v. United States, 358 U.S. 147, 151 (1958); Deutch v. United States, 367 U.S. 

456, 471 (1961); Russell v. United States, 369 U.S. 749, 755 (1962). Protesting the 

Court’s reversal of several contempt convictions over a period of years, Justice Clark 

was moved to suggest that ‘‘[t]his continued frustration of the Congress in the use 

of the judicial process to punish those who are contemptuous of its committees indicates to me that the time may have come for Congress to revert to ‘its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the 

House [affected].’’’ Id. at 781; Watkins, 354 U.S. at 225. 273 Cf. Groppi v. Leslie, 404 U.S. 496 (1972). 274 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975). 275The phrase ‘‘one person, one vote’’ which came out of this litigation might 

well seem to refer to election districts drawn to contain equal numbers of voters 

cords in all other federal criminal cases, 272 and the discussion in 

previous sections of many reversals of contempt convictions bears 

witness to the assertion in practice. What constitutional protections 

ordinarily necessitated by due process requirements, such as notice, 

right to counsel, confrontation, and the like, prevail in a contempt 

trial before the bar of one House or the other is an open question. 273

It has long been settled that the courts may not intervene directly to restrain the carrying out of an investigation or the manner of an investigation, and that a witness who believes the inquiry 

to be illegal or otherwise invalid in order to raise the issue must 

place himself in contempt and raise his beliefs as affirmative defenses on his criminal prosecution. This understanding was sharply 

reinforced when the Court held that the speech-or-debate clause utterly foreclosed judicial interference with the conduct of a congressional investigation, through review of the propriety of subpoenas 

or otherwise. 274 It is only with regard to the trial of contempts that 

the courts may review the carrying out of congressional investigations and may impose constitutional and other constraints. 

SECTION 2. Clause 1. The House of Representatives shall 

be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall 

have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. 

CONGRESSIONAL DISTRICTING 

A major innovation in constitutional law in recent years has 

been the development of a requirement that election districts in 

each State be so structured that each elected representative should 

represent substantially equal populations. 275 While this requireVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00047 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
110 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl. 1—Congressional Districting 

rather than equal numbers of persons. But it seems clear from a consideration of 

all the Court’s opinions and the results of its rulings that the statement in the text 

accurately reflects the constitutional requirement. The case expressly holding that 

total population, or the exclusion only of transients, is the standard is Burns v. 

Richardson, 384 U.S. 73 (1966), a legislative apportionment case. Notice that considerable population disparities exist from State to State, as a result of the requirement that each State receive at least one Member and the fact that state lines cannot be crossed in districting. At least under present circumstances, these disparities 

do not violate the Constitution. U.S. Department of Commerce v. Montana, 503 U.S. 

442 (1992). 276 Reynolds v. Sims, 377 U.S. 533 (1964) (legislative apportionment and districting); Hadley v. Junior College Dist., 397 U.S. 50 (1970) (local governmental 

units). 277 376 U.S. 1 (1964). See also Martin v. Bush, 376 U.S. 222 (1964). 278 376 U.S. at 7. 279 Act of June 25, 1842, 5 Stat. 491. 280 Act of February 2, 1872, 17 Stat. 28. 281The House uniformly refused to grant any such relief. 1 A. HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES 310 (1907). See L. SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT 135–138 (1941). 282Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); 

Carroll v. Becker, 285 U.S. 380 (1932); Wood v. Broom, 287 U.S. 1 (1932); Mahan 

v. Hume, 287 U.S. 575 (1932). 283 369 U.S. 186 (1962). 284Wesberry v. Sanders, 376 U.S. 1 (1964). 

ment has generally been gleaned from the equal protection clause 

of the Fourteenth Amendment, 276 in Wesberry v. Sanders, 277 the

Court held that ‘‘construed in its historical context, the command 

of Art. 1, § 2, that Representatives be chosen ‘by the People of the 

several States’ means that as nearly as is practicable one man’s 

vote in a congressional election is to be worth as much as another’s.’’ 278

Court involvement in this issue developed slowly. In our early 

history, state congressional delegations were generally elected atlarge instead of by districts, and even when Congress required single-member districting 279 and later added a provision for equally 

populated districts 280 the relief sought by voters was action by the 

House refusing to seat Members-elect selected under systems not 

in compliance with the federal laws. 281 The first series of cases did 

not reach the Supreme Court, in fact, until the States began redistricting through the 1930 Census, and these were resolved without 

reaching constitutional issues and indeed without resolving the 

issue whether such voter complaints were justiciable at all. 282 In

the late 1940s and the early 1950s, the Court utilized the ‘‘political 

question’’ doctrine to decline to adjudicate districting and apportionment suits, a position changed in Baker v. Carr. 283

For the Court in Wesberry, 284 Justice Black argued that a 

reading of the debates of the Constitutional Convention conclusively demonstrated that the Framers had meant, in using the 

phrase ‘‘by the People,’’ to guarantee equality of representation in 

ART. I—LEGISLATIVE DEPARTMENT 111

Sec. 2—House of Representatives Cl. 1—Congressional Districting 

285 376 U.S. at 7–18. 286 376 U.S. at 20–49. 287Kirkpatrick v. Preisler, 385 U.S. 450 (1967), and Duddleston v. Grills, 385 

U.S. 455 (1967), relying on the rule set out in Swann v. Adams, 385 U.S. 440 (1967), 

a state legislative case. 288 394 U.S. 526 (1969). See also Wells v. Rockefeller, 394 U.S. 542 (1969). 289Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969). 290 394 U.S. at 531. 291 394 U.S. at 533. People vote as individuals, Justice Brennan said for the 

Court, and it is the equality of individual voters that is protected. 292 Id. Political ‘‘practicality’’ may not interfere with a rule of ‘‘practicable’’ 

equality. 293 394 U.S. at 533–34. The argument is not ‘‘legally acceptable.’’ 

the election of Members of the House of Representatives. 285 Justice

Harlan in dissent argued that the statements relied on by the majority had uniformly been in the context of the Great Compromise—Senate representation of the States with Members elected by the state legislatures, House representation according to the 

population of the States, qualified by the guarantee of at least one 

Member per State and the counting of slaves as three-fifths of persons—and not at all in the context of intrastate districting. Further, he thought the Convention debates clear to the effect that Article I, § 4, had vested exclusive control over state districting practices in Congress, and that the Court action overrode a congressional decision not to require equally-populated districts. 286

The most important issue, of course, was how strict a standard 

of equality the Court would adhere to. At first, the Justices seemed 

inclined to some form of de minimis rule with a requirement that 

the State present a principled justification for the deviations from 

equality which any districting plan presented. 287 But in Kirkpatrick v. Preisler, 288 a sharply divided Court announced the rule 

that a State must make a ‘‘good-faith effort to achieve precise 

mathematical equality.’’ 289 Therefore, ‘‘[u]nless population 

variances among congressional districts are shown to have resulted 

despite such [good-faith] effort [to achieve precise mathematical 

equality], the State must justify each variance, no matter how 

small.’’ 290 The strictness of the test was revealed not only by the 

phrasing of the test but by the fact that the majority rejected every 

proffer of a justification which the State had made and which could 

likely be made. Thus, it was not an adequate justification that deviations resulted from (1) an effort to draw districts to maintain intact areas with distinct economic and social interests, 291 (2) the requirements of legislative compromise, 292 (3) a desire to maintain 

the integrity of political subdivision lines, 293 (4) the exclusion from 

total population figures of certain military personnel and students 

112 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl. 1—Congressional Districting 

294 394 U.S. at 534–35. Justice Brennan questioned whether anything less than 

a total population basis was permissible but noted that the legislature in any event 

had made no consistent application of the rationale. 

295 394 U.S. at 535. This justification would be acceptable if an attempt to establish shifts with reasonable accuracy had been made. 

296 394 U.S. at 536. Justifications based upon ‘‘the unaesthetic appearance’’ of 

the map will not be accepted. 

297White v. Weiser, 412 U.S. 783 (1973). The Court did set aside the district 

court’s own plan for districting, instructing that court to adhere more closely to the 

legislature’s own plan insofar as it reflected permissible goals of the legislators, reflecting an ongoing deference to legislatures in this area to the extent possible. 

298Karcher v. Daggett, 462 U.S. 725 (1983). Illustrating the point about computer-generated plans containing absolute population equality is Hastert v. State 

Bd. of Elections, 777 F. Supp. 634 (N.D. Ill. 1991) (three-judge court), in which the 

court adopted a congressional-districting plan in which 18 of the 20 districts had 

571,530 people each and each of the other two had 571,531 people. 

299The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative 

apportionment case, but no doubt should exist that congressional districting is covered. See Badham v. Eu, 694 F. Supp. 664 (N.D. Cal.) (three-judge court) (adjudicating partisan gerrymandering claim as to congressional districts but deciding 

against plaintiffs on merits), aff’d, 488 U.S. 1024 (1988); Pope v. Blue, 809 F. Supp. 

392 (W.D.N.C.) (three-judge court) (same), aff’d, 506 U.S. 801 (1992). 

not residents of the areas in which they were found, 294 (5) an attempt to compensate for population shifts since the last census, 295

or (6) an effort to achieve geographical compactness. 296

Illustrating the strictness of the standard, the Court upheld a 

lower court voiding of a Texas congressional districting plan in 

which the population difference between the most and least populous districts was 19,275 persons and the average deviation from 

the ideally populated district was 3,421 persons. 297 Adhering to the 

principle of strict population equality in a subsequent case, the 

Court refused to find a plan valid simply because the variations 

were smaller than the estimated census undercount. Rejecting the 

plan, the difference in population between the most and least populous districts being 3,674 people, in a State in which the average 

district population was 526,059 people, the Court opined that, 

given rapid advances in computer technology, it is now ‘‘relatively 

simple to draw contiguous districts of equal population and at the 

same time . . . further whatever secondary goals the State has.’’ 298

Attacks on partisan gerrymandering have proceeded under 

equal-protection analysis, and, while the Court has held justiciable 

claims of denial of effective representation, the standards are so 

high neither voters nor minority parties have yet benefitted from 

the development. 299

ART. I—LEGISLATIVE DEPARTMENT 113

Sec. 2—House of Representatives Cl. 1—Congressional Districting 

300The clause refers only to elections to the House of Representatives, of course, 

and, inasmuch as Senators were originally chosen by state legislatures and presidential electors as the States would provide, it was only with the qualifications for 

these voters with which the Constitution was originally concerned. 301Minor v. Happersett, 88 U.S. (21 Wall.) 162, 171 (1875); Breedlove v. Suttles, 

302 U.S. 277, 283 (1937). See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES 576–585 (1833). 302The Fifteenth, Nineteenth, Twenty-fourth, and Twenty-sixth Amendments 

limited the States in the setting of qualifications in terms of race, sex, payment of 

poll taxes, and age. 303The Supreme Court’s interpretation of the equal protection clause has excluded certain qualifications. E.g., Carrington v. Rash, 380 U.S. 89 (1965); Kramer 

v. Union Free School Dist., 395 U.S. 621 (1969); City of Phoenix v. Kolodziejski, 399 

U.S. 204 (1970). The excluded qualifications were in regard to all elections. 304The power has been held to exist under § 5 of the Fourteenth Amendment. 

Katzenbach v. Morgan, 384 U.S. 641 (1966); Oregon v. Mitchell, 400 U.S. 112 

(1970); City of Rome v. United States, 446 U.S. 156 (1980). 305 § 4(e), 79 Stat. 437, 439, 42 U.S.C. § 1973b(e), as amended. 306 Upheld in Katzenbach v. Morgan, 384 U.S. 641 (1966). 307Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb. 308Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970). 309Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970). 310Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970). 

ELECTOR QUALIFICATIONS 

It was the original constitutional scheme to vest the determination of qualifications for electors in congressional elections 300

solely in the discretion of the States, save only for the express requirement that the States could prescribe no qualifications other 

than those provided for voters for the more numerous branch of the 

legislature. 301 This language has never been expressly changed, 

but the discretion of the States, and not only with regard to the 

qualifications of congressional electors, has long been circumscribed 

by express constitutional limitations 302 and by judicial decisions. 303

Further, beyond the limitation of discretion on the part of the 

States, Congress has assumed the power, with judicial acquiescence, to legislate to provide qualifications at least with regard to 

some elections. 304 Thus, in the Voting Rights Act of 1965 305 Congress legislated changes of a limited nature in the literacy laws of 

some of the States, 306 and in the Voting Rights Act Amendments 

of 1970 307 Congress successfully lowered the minimum voting age 

in federal elections 308 and prescribed residency qualifications for 

presidential elections, 309 the Court striking down an attempt to 

lower the minimum voting age for all elections. 310 These developments greatly limited the discretion granted in Article I, § 2, cl. 1, 

and are more fully dealt with in the treatment of § 5 of the Fourteenth Amendment. 

Notwithstanding the vesting of discretion to prescribe voting 

qualifications in the States, conceptually the right to vote for 

United States Representatives is derived from the Federal ConVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00051 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
114 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl. 2—Qualifications 

311 ‘‘The right to vote for members of the Congress of the United States is not 

derived merely from the constitution and laws of the state in which they are chosen, 

but has its foundation in the Constitution of the United States.’’ Ex parte 

Yarbrough, 110 U.S. 651, 663 (1884). See also Wiley v. Sinkler, 179 U.S. 58, 62 

(1900); Swafford v. Templeton, 185 U.S. 487, 492 (1902); United States v. Classic, 

313 U.S. 299, 315, 321 (1941). 312 United States v. Mosley, 238 U.S. 383 (1915). 313 United States v. Classic, 313 U.S. 299, 315 (1941). 314See S. Rep. No. 904, 74th Congress, 1st sess. (1935), reprinted in 79 CONG.

REC. 9651–9653 (1935). 

315 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 418 (1907); 79 

CONG. REC. 9841–9842 (1935); cf. HINDS’ PRECEDENTS, supra § 429. 316 No. 60 (J. Cooke ed. 1961), 409. See also 2 J. STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES §§ 623–627 (1833) (relating to the power of 

the States to add qualifications). 

stitution, 311 and Congress has had the power under Article I, § 4, 

to legislate to protect that right against both official 312 and private 

denial. 313

Clause 2. No person shall be a Representative who shall 

not have attained to the Age of twenty-five Years, and been 

seven Years a Citizen of the United States, and who shall not, 

when elected, be an inhabitant of the State in which he shall 

be chosen. 

QUALIFICATIONS OF MEMBERS OF CONGRESS 

When the Qualifications Must Be Possessed 

A question much disputed but now seemingly settled is whether a condition of eligibility must exist at the time of the election 

or whether it is sufficient that eligibility exist when the Memberelect presents himself to take the oath of office. While the language 

of the clause expressly makes residency in the State a condition at 

the time of election, it now appears established in congressional 

practice that the age and citizenship qualifications need only be 

met when the Member-elect is to be sworn. 314 Thus, persons elected to either the House of Representatives or the Senate before attaining the required age or term of citizenship have been admitted 

as soon as they became qualified. 315

Exclusivity of Constitutional Qualifications 

Congressional Additions.—Writing in The Federalist with

reference to the election of Members of Congress, Hamilton firmly 

stated that ‘‘[t]he qualifications of the persons who may . . . be chosen . . . are defined and fixed in the constitution; and are unalterable by the legislature.’’ 316 Until the Civil War, the issue was not 

ART. I—LEGISLATIVE DEPARTMENT 115

Sec. 2—House of Representatives Cl. 2—Qualifications 

317 All the instances appear to be, however, cases in which the contest arose out 

of a claimed additional state qualification. 318 Act of July 2, 1862, 12 Stat. 502. Note also the disqualification written into 

§ 3 of the Fourteenth Amendment. 319 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 451, 449, 457 

(1907). 320 In 1870, the House excluded a Member-elect who had been re-elected after 

resigning earlier in the same Congress when expulsion proceedings were instituted 

against him for selling appointments to the Military Academy. Id. at § 464. A Member-elect was excluded in 1899 because of his practice of polygamy, id. at 474–80, 

but the Senate refused, after adopting a rule requiring a two-thirds vote, to exclude 

a Member-elect on those grounds. Id. at §§ 481–483. The House twice excluded a 

socialist Member-elect in the wake of World War I on allegations of disloyalty. 6 

CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 56–58 (1935). See

also S. Rep. No. 1010, 77th Congress, 2d sess. (1942), and R. Hupman, Senate Election, Expulsion and Censure Cases From 1789 to 1960, S. DOC. NO. 71, 87th Congress, 2d sess. (1962), 140 (dealing with the effort to exclude Senator Langer of 

North Dakota). 321 395 U.S. 486 (1969). The Court divided eight to one, Justice Stewart dissenting on the ground the case was moot. Powell’s continuing validity was affirmed 

in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the Court in 

its holding that the qualifications set out in the Constitution are exclusive and may 

not be added to by either Congress or the States, id. at 787–98, and by the dissent, 

who would hold that Congress, for different reasons could not add to qualifications, 

although the States could. Id. at 875–76. 322The Court declined to reach the question whether the Constitution in fact 

does impose other qualifications. 395 U.S. at 520 n. 41 (possibly Article I, § 3, cl. 

7, disqualifying persons impeached, Article I, § 6, cl. 2, incompatible offices, and § 

3 of the Fourteenth Amendment). It is also possible that the oath provision of Article VI, cl. 3, could be considered a qualification. See Bond v. Floyd, 385 U.S. 116, 

129–131 (1966). 323 395 U.S. at 550. 324 H. Rep. No. 27, 90th Congress, 1st sess. (1967); 395 U.S. at 489–493. 

raised, the only actions taken by either House conforming to the 

idea that the qualifications for membership could not be enlarged 

by statute or practice. 317 But in the passions aroused by the fratricidal conflict, Congress enacted a law requiring its members to 

take an oath that they had never been disloyal to the National 

Government. 318 Several persons were refused seats by both Houses 

because of charges of disloyalty, 319 and thereafter House practice, 

and Senate practice as well, was erratic. 320 But in Powell v. 

McCormack, 321 it was conclusively established that the qualifications listed in cl. 2 are exclusive 322 and that Congress could not 

add to them by excluding Members-elect not meeting the additional 

qualifications. 323

Powell was excluded from the 90th Congress on grounds that 

he had asserted an unwarranted privilege and immunity from the 

process of a state court, that he had wrongfully diverted House 

funds for his own uses, and that he had made false reports on the 

expenditures of foreign currency. 324 The Court determination that 

he had been wrongfully excluded proceeded in the main from the 

Court’s analysis of historical developments, the Convention deVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00053 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
116 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl. 2—Qualifications 

325Powell v. McCormack, 395 U.S. 486, 518–47 (1969). 326 395 U.S. at 522–31. 327 395 U.S. at 532–39. 328 395 U.S. at 539–41. 329 395 U.S. at 541–47. 330 395 U.S. at 547–48. 

bates, and textual considerations. This process led the Court to 

conclude that Congress’ power under Article I, § 5 to judge the 

qualifications of its Members was limited to ascertaining the presence or absence of the standing qualifications prescribed in Article 

I, § 2, cl. 2, and perhaps in other express provisions of the Constitution. 325 The conclusion followed because the English parliamentary practice and the colonial legislative practice at the time 

of the drafting of the Constitution, after some earlier deviations, 

had settled into a policy that exclusion was a power exercisable 

only when the Member-elect failed to meet a standing qualifications 326 because in the Constitutional Convention the Framers had 

defeated provisions allowing Congress by statute either to create 

property qualifications or to create additional qualifications without 

limitation, 327 and because both Hamilton and Madison in the Federalist Papers and Hamilton in the New York ratifying convention 

had strongly urged that the Constitution prescribed exclusive 

qualifications for Members of Congress. 328

Further, the Court observed that the early practice of Congress, with many of the Framers serving, was consistently limited 

to the view that exclusion could be exercised only with regard to 

a Member-elect failing to meet a qualification expressly prescribed 

in the Constitution. Not until the Civil War did contrary precedents appear, and later practice was mixed. 329 Finally, even were 

the intent of the Framers less clear, said the Court, it would still 

be compelled to interpret the power to exclude narrowly. ‘‘A fundamental principle of our representative democracy is, in Hamilton’s 

words, ‘that the people should choose whom they please to govern 

them.’ 2 Elliot’s Debates 257. As Madison pointed out at the Convention, this principle is undermined as much by limiting whom 

the people can select as by limiting the franchise itself. In apparent 

agreement with this basic philosophy, the Convention adopted his 

suggestion limiting the power to expel. To allow essentially that 

same power to be exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the 

Wilkes case and some of Congress’ own post-Civil War exclusion 

cases, against ‘vesting an improper and dangerous power in the 

Legislature.’ 2 Farrand 249.’’ 330 Thus, the Court appears to say, to 

allow the House to exclude Powell on this basis of qualifications of 

its own choosing would impinge on the interests of his constituents 

ART. I—LEGISLATIVE DEPARTMENT 117

Sec. 2—House of Representatives Cl. 2—Qualifications 

331The protection of the voters’ interest in being represented by the person of 

their choice is thus analogized to their constitutionally secured right to cast a ballot 

and have it counted in general elections, Ex parte Yarbrough, 110 U.S. 651 (1884), 

and in primary elections, United States v. Classic, 313 U.S. 299 (1941), to cast a 

ballot undiluted in strength because of unequally populated districts, Wesberry v. 

Sanders, 376 U.S. 1 (1964), and to cast a vote for candidates of their choice unfettered by onerous restrictions on candidate qualification for the ballot. Williams v. 

Rhodes, 393 U.S. 23 (1968). 332 Bond v. Floyd, 385 U.S. 116 (1966). 333 385 U.S. at 129–31, 132, 135. 334 385 U.S. at 135 n.13. 335 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 414 (1907). 

in effective participation in the electoral process, an interest which 

could be protected by a narrow interpretation of Congressional 

power. 331

The result in the Powell case had been foreshadowed earlier 

when the Court held that the exclusion of a Member-elect by a 

state legislature because of objections he had uttered to certain national policies constituted a violation of the First Amendment and 

was void. 332 In the course of that decision, the Court denied state 

legislators the power to look behind the willingness of any legislator to take the oath to support the Constitution of the United 

States, prescribed by Article VI, cl. 3, to test his sincerity in taking 

it. 333 The unanimous Court noted the views of Madison and Hamilton on the exclusivity of the qualifications set out in the Constitution and alluded to Madison’s view that the unfettered discretion 

of the legislative branch to exclude members could be abused in behalf of political, religious or other orthodoxies. 334 The First Amendment holding and the holding with regard to testing the sincerity 

with which the oath of office is taken is no doubt as applicable to 

the United States Congress as to state legislatures. 

State Additions.—However much Congress may have deviated from the principle that the qualifications listed in the Constitution are exclusive when the issue has been congressional enlargement of those qualifications, it has been uniform in rejecting 

efforts by the States to enlarge the qualifications. Thus, the House 

in 1807 seated a Member-elect who was challenged as not being in 

compliance with a state law imposing a twelve-month durational 

residency requirement in the district, rather than the federal requirement of being an inhabitant of the State at the time of election; the state requirement, the House resolved, was unconstitutional. 335 Similarly, both the House and Senate have seated other 

Members-elect who did not meet additional state qualifications or 

who suffered particular state disqualifications on eligibility, such 

as running for Congress while holding particular state offices. 

118 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl. 2—Qualifications 

336 514 U.S. 779 (1995). The majority was composed of Justice Stevens (writing 

the opinion of the Court) and Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting were Justice Thomas (writing the opinion) and Chief Justice Rehnquist and 

Justices O’Connor and Scalia. Id. at 845. 337 Article I, § 2, cl. 2, provides that a person may qualify as a Representative 

if she is at least 25 years old, has been a United States citizen for at least 7 years, 

and is an inhabitant, at the time of the election, of the State in which she is chosen. 

The qualifications established for Senators, Article I, § 3, cl. 3, are an age of 30 

years, nine years’ citizenship, and being an inhabitant of the State at the time of 

election. 338The four-Justice dissent argued that while Congress has no power to increase 

qualifications, the States do. 514 U.S. at 845. 339 Cook v. Gralike, 531 U.S. 510 (2001). 340See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109 

HARV. L. REV. 78 (1995). 341 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65. 

The Supreme Court reached the same conclusion as to state 

power, albeit by a surprisingly close 5-4 vote, in U.S. Term Limits, 

Inc. v. Thornton. 336 Arkansas, along with twenty-two other States, 

all but two by citizen initiatives, had limited the number of terms 

that Members of Congress may serve. In striking down the Arkansas term limits, the Court determined that the Constitution’s qualifications clauses 337 establish exclusive qualifications for Members 

that may not be added to either by Congress or the States. 338 Six

years later, the Court relied on Thornton to invalidate a Missouri 

law requiring that labels be placed on ballots alongside the names 

of congressional candidates who had ‘‘disregarded voters’ instruction on term limits’’ or declined to pledge support for term limits. 339

Both majority and dissenting opinions in Thornton were richly 

embellished with disputatious arguments about the text of the Constitution, the history of its drafting and ratification, and the practices of Congress and the States in the nation’s early years, 340 and

these differences over text, creation, and practice derived from disagreement about the fundamental principle underlying the Constitution’s adoption. 

In the dissent’s view, the Constitution was the result of the 

resolution of the peoples of the separate States to create the National Government. The conclusion to be drawn from this was that 

the peoples in the States agreed to surrender only those powers expressly forbidden them and those limited powers that they had delegated to the Federal Government expressly or by necessary implication. They retained all other powers and still retain them. Thus, 

‘‘where the Constitution is silent about the exercise of a particular 

power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks 

that power and the States enjoy it.’’ 341 The Constitution’s silence 

ART. I—LEGISLATIVE DEPARTMENT 119

Sec. 2—House of Representatives Cl.3—Apportionment 

342 514 U.S. at 802. 343 514 U.S. at 798–805. And see id. at 838–45 (Justice Kennedy concurring). 

The Court applied similar reasoning in Cook v. Gralike, 531 U.S. 510, 522-23 (2001), 

invalidating ballot labels identifying congressional candidates who had not pledged 

to support term limits. Because congressional offices arise from the Constitution, the 

Court explained, no authority to regulate these offices could have preceded the Constitution and been reserved to the states, and the ballot labels were not valid exercise of the power granted by Article I, § 4 to regulate the ‘‘manner’’ of holding elections. See discussion under Federal Legislation Protecting Electoral Process, 

infra.

344The part of this clause relating to the mode of apportionment of representatives among the several States was changed by the Fourteenth Amendment, § 2 and 

as to taxes on incomes without apportionment, by the Sixteenth Amendment. 

as to authority to impose additional qualifications meant that this 

power resides in the states. 

The majority’s views were radically different. After the adoption of the Constitution, the states had two kinds of powers: reserved powers that they had before the founding and that were not 

surrendered to the Federal Government, and those powers delegated to them by the Constitution. It followed that the States could 

have no reserved powers with respect to the Federal Government. 

‘‘As Justice Story recognized, ‘the states can exercise no powers 

whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to 

them. . . . No state can say, that it has reserved, what it never possessed.’’’ 342 The States could not before the founding have possessed powers to legislate respecting the Federal Government, and 

since the Constitution did not delegate to the States the power to 

prescribe qualifications for Members of Congress, the States did not 

have any such power. 343

Evidently, the opinions in this case reflect more than a decision on this particular dispute. They rather represent conflicting 

philosophies within the Court respecting the scope of national 

power in relation to the States, an issue at the core of many controversies today. 

Clause 3. [Representatives and direct Taxes shall be apportioned among the several States which may be included within 

this Union, according to their respective Numbers, which shall 

be determined by adding to the whole Number of free Persons, 

including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons]. 344

The actual Enumeration shall be made within three Years after 

120 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl.3—Apportionment 

345 Utah v. Evans, 122 S. Ct. 2191, 2206 (2002). 346 Id.

the first Meeting of the Congress of the United States, and 

within every subsequent Term of ten Years, in such Manner as 

they shall by Law direct. The Number of Representatives shall 

not exceed one for every thirty Thousand, but each State shall 

have at Least one Representative; and until such enumeration 

shall be made, the State of New Hampshire shall be entitled 

to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut, five, New York six, New 

Jersey four, Pennsylvania eight, Delaware one, Maryland six, 

Virginia ten, North Carolina five, South Carolina five, and 

Georgia three. 

APPORTIONMENT OF SEATS IN THE HOUSE 

The Census Requirement 

The Census Clause ‘‘reflects several important constitutional 

determinations: that comparative state political power in the House 

would reflect comparative population, not comparative wealth; that 

comparative power would shift every 10 years to reflect population 

changes; that federal tax authority would rest upon the same base; 

and that Congress, not the States, would determine the manner of 

conducting the census.’’ 345 These determinations ‘‘all suggest a 

strong constitutional interest in accuracy.’’ 346 The language employed – ‘‘actual enumeration’’ – requires an actual count, but gives 

Congress wide discretion in determining the methodology of that 

count. The word ‘‘enumeration’’ refers to a counting process without 

describing the count’s methodological details. The word ‘‘actual’’ 

merely refers to the enumeration to be used for apportioning the 

Third Congress, and thereby distinguishes ‘‘a deliberately taken 

count’’ from the conjectural approach that had been used for the 

First Congress. Finally, the conferral of authority on Congress to 

‘‘direct’’ the ‘‘manner’’ of enumeration underscores ‘‘the breadth of 

congressional methodological authority.’’ Thus, the Court held in 

Utah v. Evans, ‘‘hot deck imputation,’’ a method used to fill in 

missing data by imputing to an address the number of persons 

found at a nearby address or unit of the same type, does not run 

ART. I—LEGISLATIVE DEPARTMENT 121

Sec. 2—House of Representatives Cl.3—Apportionment 

347 Utah v. Evans, 122 S. Ct. 2191 (2002). 348See also Wisconsin v. City of New York, 517 U.S. 1 (1996), in which the 

Court held that the decision of the Secretary of Commerce not to conduct a postenumeration survey and statistical adjustment for an undercount in the 1990 Census was reasonable and within the bounds of discretion conferred by the Constitution and statute; and Franklin v. Massachusetts, 505 U.S. 788 (1992), upholding the 

practice of the Secretary of Commerce in allocating overseas federal employees and 

military personnel to the States of last residence. The mandate of an enumeration 

of ‘‘their respective numbers’’ was complied with, it having been the practice since 

the first enumeration to allocate persons to the place of their ‘‘usual residence,’’ and 

to construe both this term and the word ‘‘inhabitant’’ broadly to include people temporarily absent. 349Knox v. Lee (Legal Tender Cases). 79 U.S. (12 Wall.) 457, 536 (1971) (‘‘Who 

questions the power to [count persons in the territories or] collect[ ] . . . statistics 

respecting age, sex, and production?’’). 350For an extensive history of the subject, see L. SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT (1941). 351 46 Stat. 26, 22, as amended by 55 Stat. 761 (1941), 2 U.S.C. § 2a. 

afoul of the ‘‘actual enumeration’’ requirement. 347 The Court distinguished imputation from statistical sampling, and indicated that 

its holding was relatively narrow. Imputation was permissible 

‘‘where all efforts have been made to reach every household, where 

the methods used consist not of statistical sampling but of inference, where that inference involves a tiny percent of the population, where the alternative is to make a far less accurate assessment of the population, and where consequently manipulation of 

the method is highly unlikely.’’ 348

While the Census Clause expressly provides for an enumeration of persons, Congress has expanded the scope of the census by 

including not only the free persons in the States, but also those in 

the territories, and by requiring all persons over eighteen years of 

age to answer an ever-lengthening list of inquiries concerning their 

personal and economic affairs. This extended scope of the census 

has received the implied approval of the Supreme Court, 349 and is 

one of the methods whereby the national legislature exercises its 

inherent power to obtain the information necessary for intelligent 

legislative action. 

Although taking an enlarged view of its census power, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is 

taken. 350 It failed to make such a reapportionment after the census 

of 1920, being unable to reach agreement for allotting representation without further increasing the size of the House. Ultimately, 

by the act of June 18, 1929, 351 it provided that the membership of 

the House of Representatives should henceforth be restricted to 435 

members, to be distributed among the States by the so-called 

‘‘method of major fractions,’’ which had been earlier employed in 

the apportionment of 1911, and which has now been replaced with 

122 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 2—House of Representatives Cl. 5—Officers and Powers of Impeachment 

352 U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992). 353 503 U.S. at 463. ‘‘The need to allocate a fixed number of indivisible Representatives among 50 States of varying populations makes it virtually impossible 

to have the same size district in any pair of States, let alone in all 50,’’ the Court 

explained. Id. 354 241 U.S. 565 (1916). 355Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932); 

Carroll v. Becker, 285 U.S. 380 (1932). 

the ‘‘method of equal proportions.’’ Following the 1990 census, a 

State that had lost a House seat as a result of the use of this formula sued, alleging a violation of the ‘‘one person, one vote’’ rule 

derived from Article I, § 2. Exhibiting considerable deference to 

Congress and a stated appreciation of the difficulties in achieving 

interstate equalities, the Supreme Court upheld the formula and 

the resultant apportionment. 352 The goal of absolute population 

equality among districts ‘‘is realistic and appropriate’’ within a single state, but the constitutional guarantee of one Representative for 

each state constrains application to districts in different states, and 

makes the goal ‘‘illusory for the Nation as a whole.’’ 353

While requiring the election of Representatives by districts, 

Congress has left it to the States to draw district boundaries. This 

has occasioned a number of disputes. In Ohio ex rel. Davis v. 

Hildebrant, 354 a requirement that a redistricting law be submitted 

to a popular referendum was challenged and sustained. After the 

reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States produced a 

series of cases in which the right of the Governor to veto a reapportionment bill was questioned. Contrasting this function with other 

duties committed to state legislatures by the Constitution, the 

Court decided that it was legislative in character and subject to gubernatorial veto to the same extent as ordinary legislation under 

the terms of the state constitution. 355

Clause 4. When vacancies happen in the Representation 

from any State, the Executive Authority thereof shall issue 

Writs of Election to fill such Vacancies. 

IN GENERAL 

The Supreme Court has not interpreted this clause. 

Clause 5. The House of Representatives shall chuse their 

Speaker and other Officers; and shall have the sole Power of 

Impeachment.

ART. I—LEGISLATIVE DEPARTMENT 123

Sec. 3—Senate Cls. 3–5—Qualifications, Vice-President, Officers 

356See Seventeenth Amendment. 357See Seventeenth Amendment. 358See Seventeenth Amendment. 

IN GENERAL 

See analysis of Impeachment under Article II, section 4. 

SECTION 3. Clause 1. [The Senate of the United States 

shall be composed of two Senators from each State, chosen by 

the legislature thereof, for six Years; and each Senator shall 

have one vote]. 356

Clause 2. Immediately after they shall be assembled in 

Consequence of the first Election, they shall be divided as 

equally as may be into three classes. The Seats of the Senators 

of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth 

Year, and of the third Class at the Expiration of the sixth Year, 

so that one third may be chosen every second Year, 357 [and if 

Vacancies happen by Resignation or otherwise, during the Recess of the Legislature of any State, the Executive thereof may 

make temporary Appointments until the next Meeting of the 

Legislature, which shall then fill such Vacancies]. 358

IN GENERAL 

Clause 1 has been completely superseded by the Seventeenth 

Amendment, and Clause 2 has been partially superseded. 

Clause 3. No Person shall be a Senator who shall not have 

attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be 

an Inhabitant of that State for which he shall be chosen. 

Clause 4. The Vice President of the United States shall be 

President of the Senate but shall have no Vote, unless they be 

equally divided. 

124 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 4—Elections Cl. 1—Times, Places, and Manner 

Clause 5. The Senate shall chuse their other Officers, and 

also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of the President of 

the United States. 

IN GENERAL 

The Supreme Court has not interpreted these clauses. 

Clause 6. The Senate shall have the sole Power to try all 

Impeachments. When sitting for that Purpose, they shall be on 

Oath or Affirmation. When the President of the United States 

is tried, the Chief Justice shall preside: And no Person shall be 

convicted without the Concurrence of two thirds of the Members present. 

Clause 7. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification 

to hold and enjoy any Office of honor, Trust or Profit under the 

United States; but the Party convicted shall nevertheless be 

liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. 

IN GENERAL 

See analysis of impeachment under Article II, sec. 4. 

SECTION 4. Clause 1. The Times, Places and Manner of 

holding Elections for Senators and Representatives, shall be 

prescribed in each State by the Legislature thereof; but Congress may at any time make or alter such Regulations, except 

as to the Place of chusing Senators. 

LEGISLATION PROTECTING ELECTORAL PROCESS 

By its terms, Art. I, § 4, cl. 1 empowers both Congress and 

state legislatures to regulate the ‘‘times, places and manner of 

holding elections for Senators and Representatives.’’ Not until 

1842, when it passed a law requiring the election of RepresentaVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00062 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 125

Sec. 4—Elections Cl. 1—Times, Places, and Manner 

359 5 Stat. 491 (1842). The requirement was omitted in 1850, 9 Stat. 428, but 

was adopted again in 1862. 12 Stat. 572. 360The 1872 Act, 17 Stat. 28, provided that districts should contain ‘‘as nearly 

as practicable’’ equal numbers of inhabitants, a provision thereafter retained. In 

1901, 31 Stat. 733, a requirement that districts be composed of ‘‘compact territory’’ 

was added. These provisions were repeated in the next Act, 37 Stat. 13 (1911), there 

was no apportionment following the 1920 Census, and the permanent 1929 Act 

omitted the requirements. 46 Stat. 13. Cf. Wood v. Broom, 287 U.S. 1 (1932). 361The first challenge was made in 1843. The committee appointed to inquire 

into the matter divided, the majority resolving that Congress had no power to bind 

the States in regard to their manner of districting, the minority contending to the 

contrary. H. Rep. No. 60, 28th Congress, 1st sess. (1843). The basis of the majority 

view was that while Article I, § 4 might give Congress the power to create the districts itself, the clause did not authorize Congress to tell the state legislatures how 

to do it if the legislatures were left the task of drawing the lines. L. 

SCHMECKEBIER, CONGRESSIONAL APPORTIONMENT 135–138 (1941). This argument 

would not appear to be maintainable in light of the language in Ex parte Siebold, 

100 U.S. 371, 383–386 (1880). 362 46 Stat. 13 (1929). In 1967, Congress restored the single-member district requirement. 81 Stat. 581, 2 U.S.C. § 2c. 363 14 Stat. 243 (1866). Still another such regulation was the congressional specification of a common day for the election of Representatives in all the States. 17 

Stat. 28 (1872), 2 U.S.C. § 7. 364 Article I, § 4, and the Fifteenth Amendment have had quite different applications. The Court insisted that under the latter, while Congress could legislate to 

protect the suffrage in all elections, it could do so only against state interference 

based on race, color, or previous condition of servitude, James v. Bowman, 190 U.S. 

127 (1903); United States v. Reese, 92 U.S. 214 (1876), whereas under the former 

it could also legislate against private interference for whatever motive, but only in 

federal elections. Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Yarbrough, 110 

U.S. 651 (1884). 

tives by districts, 359 did Congress undertake to exercise this power. 

In subsequent years, Congress expanded on the requirements, successively adding contiguity, compactness, and substantial equality 

of population to the districting requirements. 360 However, no challenge to the seating of Members-elect selected in violation of these 

requirements was ever successful, 361 and Congress deleted the 

standards from the 1929 apportionment act. 362

In 1866 Congress was more successful in legislating to remedy 

a situation under which deadlocks in state legislatures over the 

election of Senators were creating vacancies in the office. The act 

required the two houses of each legislature to meet in joint session 

on a specified day and to meet every day thereafter until a Senator 

was selected. 363

The first comprehensive federal statute dealing with elections 

was adopted in 1870 as a means of enforcing the Fifteenth Amendment’s guarantee against racial discrimination in granting suffrage 

rights. 364 Under the Enforcement Act of 1870, and subsequent 

laws, false registration, bribery, voting without legal right, making 

false returns of votes cast, interference in any manner with officers 

of election, and the neglect by any such officer of any duty required 

126 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 4—Elections Cl. 1—Times, Places, and Manner 

365The Enforcement Act of May 31, 1870, 16 Stat. 140; The Force Act of February 28, 1871, 16 Stat. 433; The Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. 

The text of these and other laws and the history of the enactments and subsequent 

developments are set out in R. CARR, FEDERAL PROTECTION OF CIVIL RIGHTS: QUEST

FOR A SWORD (1947). 366The constitutionality of sections pertaining to federal elections was sustained 

in Ex parte Siebold, 100 U.S. 371 (1880), and Ex parte Yarbrough, 110 U.S. 651 

(1884). The legislation pertaining to all elections was struck down as going beyond 

Congress’ power to enforce the Fifteenth Amendment. United States v. Reese, 92 

U.S. 214 (1876). 367 28 Stat. 144 (1894). 368P.L. 85–315, Part IV, § 131, 71 Stat. 634, 637 (1957); P.L. 86–449, Title III, 

§ 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); P.L. 88–352, Title I, § 101, 78 Stat. 

241 (1964); P.L. 89–110, 79 Stat. 437 (1965); P.L. 90–284, Title I, § 101, 82 Stat. 

73 (1968); P.L. 91–285, 84 Stat. 314 (1970);P.L. 94–73, 89 Stat. 400 (1975); P.L. 97– 

205, 96 Stat. 131 (1982). Most of these statutes are codified in 42 U.S.C. § 1971 et

seq. The penal statutes are in 18 U.S.C. §§ 241–245. 

369 Act of January 26, 1907, 34 Stat. 864, now a part of 18 U.S.C. § 610. 370 Act of February 28, 1925, 43 Stat. 1070, 2 U.S.C. §§ 241–256. Comprehensive 

regulation is now provided by the Federal Election Campaign Act of 1971, 86 Stat. 

3, and the Federal Election Campaign Act Amendments of 1974, 88 Stat. 1263, as 

amended, 90 Stat. 475, found in titles 2, 5, 18, and 26 of the U.S. Code. See Buckley

v. Valeo, 424 U.S. 1 (1976). 371 E.g., the Hatch Act, relating principally to federal employees and state and 

local governmental employees engaged in programs at least partially financed with 

federal funds, 5 U.S.C. §§ 7324–7327. 

of him by state or federal law were made federal offenses. 365 Provision was made for the appointment by federal judges of persons to 

attend at places of registration and at elections with authority to 

challenge any person proposing to register or vote unlawfully, to 

witness the counting of votes, and to identify by their signatures 

the registration of voters and election talley sheets. 366 When the 

Democratic Party regained control of Congress, these pieces of Reconstruction legislation dealing specifically with elections were repealed, 367 but other statutes prohibiting interference with civil 

rights generally were retained and these were utilized in later 

years. More recently, Congress has enacted, in 1957, 1960, 1964, 

1965, 1968, 1970, 1975, 1980, and 1982, legislation to protect the 

right to vote in all elections, federal, state, and local, through the 

assignment of federal registrars and poll watchers, suspension of 

literacy and other tests, and the broad proscription of intimidation 

and reprisal, whether with or without state action. 368

Another chapter was begun in 1907 when Congress passed the 

Tillman Act, prohibiting national banks and corporations from 

making contributions in federal elections. 369 The Corrupt Practices 

Act, first enacted in 1910 and replaced by another law in 1925, extended federal regulation of campaign contributions and expenditures in federal elections, 370 and other acts have similarly provided 

other regulations. 371

ART. I—LEGISLATIVE DEPARTMENT 127

Sec. 4—Elections Cl. 1—Times, Places, and Manner 

372 United States v. Classic, 313 U.S. 299, 314–15 (1941), and cases cited. 373 313 U.S. at 315; Buckley v. Valeo, 424 U. S. 1, 13 n.16 (1976). 374 United States v. Classic, 313 U.S. 299, 315–321 (1941). The authority of 

Newberry v. United States, 256 U.S. 232 (1921), to the contrary has been vitiated. 

Cf. United States v. Wurzbach, 280 U.S. 396 (1930). 

375 United States v. Mosley, 238 U.S. 383 (1915); United States v. Saylor, 322 

U.S. 385, 387 (1944). 376 Ex parte Yarbrough, 110 U.S. 651 (1884). 377 United States v. Mosley, 238 U.S. 383 (1915). 378 United States v. Saylor, 322 U.S. 385 (1944). 379 United States v. Bathgate, 246 U.S. 220 (1918); United States v. Gradwell, 

243 U.S. 476 (1917). 380 Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S. 399 (1880); 

4United States v. Gale, 109 U.S. 65 (1883); In re Coy, 127 U.S. 731 (1888). 381 Ex parte Siebold, 100 U.S. 371 (1880) 382 But in Oregon v. Mitchell, 400 U.S. 112 (1970), Justice Black grounded his 

vote to uphold the age reduction in federal elections and the presidential voting residency provision sections of the Voting Rights Act Amendments of 1970 on this 

clause. Id. at 119–35. Four Justices specifically rejected this construction, id. at 

As we have noted above, although § 2, cl. 1, of this Article 

vests in the States the responsibility, now limited, to establish 

voter qualifications for congressional elections, the Court has held 

that the right to vote for Members of Congress is derived from the 

Federal Constitution, 372 and that Congress therefore may legislate 

under this section of the Article to protect the integrity of this 

right. Congress may protect the right of suffrage against both official and private abridgment. 373 Where a primary election is an integral part of the procedure of choice, the right to vote in that primary election is subject to congressional protection. 374 The right 

embraces, of course, the opportunity to cast a ballot and to have 

it counted honestly. 375 Freedom from personal violence and intimidation may be secured. 376 The integrity of the process may be safeguarded against a failure to count ballots lawfully cast 377 or the dilution of their value by the stuffing of the ballot box with fraudulent ballots. 378 But the bribery of voters, although within reach of 

congressional power under other clauses of the Constitution, has 

been held not to be an interference with the rights guaranteed by 

this section to other qualified voters. 379

To accomplish the ends under this clause, Congress may adopt 

the statutes of the States and enforce them by its own sanctions. 380

It may punish a state election officer for violating his duty under 

a state law governing congressional elections. 381 It may, in short, 

utilize its power under this clause, combined with the necessaryand-proper clause, to regulate the times, places, and manner of 

electing Members of Congress so as to fully safeguard the integrity 

of the process; it may not, however, under this clause, provide different qualifications for electors than those provided by the 

States. 382

128 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections 

209–12, 288–92, and the other four implicitly rejected it by relying on totally different sections of the Constitution in coming to the same conclusions as did Justice 

Black. 383Smiley v. Holm, 285 U.S. 355, 366 (1932). 384See, e.g., Storer v. Brown, 415 U.S. 724 (1974) (restrictions on independent 

candidacies requiring early commitment prior to party primaries); Roudebush v. 

Hartke, 405 U.S. 15, 25 (1972) (recount for Senatorial election); and Munro v. Socialist Workers Party, 479 U.S. 189, 194 (1986) (requirement that minor party candidate demonstrate substantial support – 1% of votes cast in the primary election 

– before being placed on ballot for general election). 385 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995). 386 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). 387 Cook v. Gralike, 531 U.S. 510 (2001). 388Thornton, 514 U.S. at 833-34. 389See Twentieth Amendment. 

State authority to regulate the ‘‘times, places, and manner’’ of 

holding congressional elections has also been tested, and has been 

described by the Court as ‘‘embrac[ing] authority to provide a complete code for congressional elections . . . ; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right 

involved.’’ 383 The Court has upheld a variety of state laws designed 

to ensure that elections – including federal elections – are fair and 

honest and orderly. 384 But the Court distinguished state laws that 

go beyond ‘‘protection of the integrity and regularity of the election 

process,’’ and instead operate to disadvantage a particular class of 

candidates. 385 Term limits, viewed as serving the dual purposes of 

‘‘disadvantaging a particular class of candidates and evading the 

dictates of the Qualifications Clause,’’ crossed this line, 386 as did 

ballot labels identifying candidates who disregarded voters’ instructions on term limits or declined to pledge support for them. 387

‘‘[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of 

power to dictate electoral outcomes, to favor or disfavor a class of 

candidates, or to evade important constitutional restraints.’’ 388

Clause 2. [The Congress shall assemble at least once in 

every Year, and such Meeting shall be on the first Monday in 

December, unless they shall by law appoint a different Day]. 389

IN GENERAL 

This Clause was superseded by the Twentieth Amendment. 

SECTION 5. Clause 1. Each House shall be the Judge of the 

Elections, Returns and Qualifications of its own Members, and 

a Majority of each shall constitute a Quorum to do Business; 

ART. I—LEGISLATIVE DEPARTMENT 129

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections 

390 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929). 391 In re Loney, 134 U.S. 372 (1890). 392 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 72–74, 180 

(1936). Cf. Newberry v. United States, 256 U.S. 232, 258 (1921). 

but a smaller Number may adjourn from day to day, and may 

be authorized to compel the Attendance of absent Members, in 

such Manner, and under such Penalties as each House may 

provide.

Clause 2. Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, 

with the Concurrence of two thirds, expel a Member. 

Clause 3. Each House shall keep a Journal of its Proceedings and from time to time publish the same, excepting 

such Parts as may in their Judgment require Secrecy; and the 

Yeas and Nays of the Members of either House on any question 

shall, at the Desire of one fifth of those Present, be entered on 

the Journal. 

Clause 4. Neither House, during the Session of Congress, 

shall, without the Consent of the other, adjourn for more than 

three days, nor to any other Place than that in which the two 

Houses shall be sitting. 

POWERS AND DUTIES OF THE HOUSES 

Power To Judge Elections 

Each House, in judging of elections under this clause, acts as 

a judicial tribunal, with like power to compel attendance of witnesses. In the exercise of its discretion, it may issue a warrant for 

the arrest of a witness to procure his testimony, without previous 

subpoena, if there is good reason to believe that otherwise such 

witness would not be forthcoming. 390 It may punish perjury committed in testifying before a notary public upon a contested election. 391 The power to judge elections extends to an investigation of 

expenditures made to influence nominations at a primary election. 392 Refusal to permit a person presenting credentials in due 

form to take the oath of office does not oust the jurisdiction of the 

130 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections 

393 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929). 394 279 U.S. at 615. The existence of this power in both houses of Congress does 

not prevent a State from conducting a recount of ballots cast in such an election 

any more than it prevents the initial counting by a State. Roudebush v. Hartke, 405 

U.S. 15 (1972). 395 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2895–2905 

(1907). 396 144 U.S. 1 (1892). 397 144 U.S. at 5–6. 398 Rule V. 399 4 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2910–2915 

(1907); 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 645, 646 

(1936).

Senate to inquire into the legality of the election. 393 Nor does such 

refusal unlawfully deprive the State which elected such person of 

its equal suffrage in the Senate. 394

‘‘A Quorum To Do Business’’ 

For many years the view prevailed in the House of Representatives that it was necessary for a majority of the members to vote 

on any proposition submitted to the House in order to satisfy the 

constitutional requirement for a quorum. It was a common practice 

for the opposition to break a quorum by refusing to vote. This was 

changed in 1890, by a ruling made by Speaker Reed and later embodied in Rule XV of the House, that members present in the 

chamber but not voting would be counted in determining the presence of a quorum. 395 The Supreme Court upheld this rule in 

United States v. Ballin, 396 saying that the capacity of the House to 

transact business is ‘‘created by the mere presence of a majority,’’ 

and that since the Constitution does not prescribe any method for 

determining the presence of such majority ‘‘it is therefore within 

the competency of the House to prescribe any method which shall 

be reasonably certain to ascertain the fact.’’ 397 The rules of the 

Senate provide for the ascertainment of a quorum only by a roll 

call, 398 but in a few cases it has held that if a quorum is present, 

a proposition can be determined by the vote of a lesser number of 

members. 399

Rules of Proceedings 

In the exercise of their constitutional power to determine their 

rules of proceedings, the Houses of Congress may not ‘‘ignore constitutional restraints or violate fundamental rights, and there 

should be a reasonable relation between the mode or method of 

proceeding established by the rule and the result which is sought 

to be attained. But within these limitations all matters of method 

are open to the determination of the House ... The power to make 

rules is not one which once exercised is exhausted. It is a continVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00068 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 131

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections 

400 United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is ‘‘a continuing 

body.’’ McGrain v. Daugherty, 273 U.S. 135, 181–182 (1927). Hence its rules remain 

in force from Congress to Congress except as they are changed from time to time, 

whereas those of the House are readopted at the outset of each new Congress. 401 286 U.S. 6 (1932). 402 338 U.S. 84 (1949). 403 338 U.S. at 87–90. 404 338 U.S. at 92–95. 405 Burton v. United States, 202 U.S. 344 (1906). 406 In re Chapman, 166 U.S. 661 (1897). 

uous power, always subject to be exercised by the House, and within the limitations suggested, absolute and beyond the challenge of 

any other body or tribunal.’’ 400 Where a rule affects private rights, 

the construction thereof becomes a judicial question. In United

States v. Smith, 401 the Court held that the Senate’s attempt to reconsider its confirmation of a person nominated by the President 

as Chairman of the Federal Power Commission was not warranted 

by its rules and did not deprive the appointee of his title to the office. In Christoffel v. United States, 402 a sharply divided Court 

upset a conviction for perjury in the district courts of one who had 

denied under oath before a House committee any affiliation with 

Communism. The reversal was based on the ground that inasmuch 

as a quorum of the committee, while present at the outset, was not 

present at the time of the alleged perjury, testimony before it was 

not before a ‘‘competent tribunal’’ within the sense of the District 

of Columbia Code. 403 Four Justices, speaking by Justice Jackson, 

dissented, arguing that under the rules and practices of the House, 

‘‘a quorum once established is presumed to continue unless and 

until a point of no quorum is raised’’ and that the Court was, in 

effect, invalidating this rule, thereby invalidating at the same time 

the rule of self-limitation observed by courts ‘‘where such an issue 

is tendered.’’ 404

Powers of the Houses Over Members 

Congress has authority to make it an offense against the 

United States for a Member, during his continuance in office, to receive compensation for services before a government department in 

relation to proceedings in which the United States is interested. 

Such a statute does not interfere with the legitimate authority of 

the Senate or House over its own Members. 405 In upholding the 

power of the Senate to investigate charges that some Senators had 

been speculating in sugar stocks during the consideration of a tariff 

bill, the Supreme Court asserted that ‘‘the right to expel extends 

to all cases where the offence is such as in the judgment of the 

Senate is inconsistent with the trust and duty of a Member.’’ 406 It

cited with apparent approval the action of the Senate in expelling 

132 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections 

407 166 U.S. at 669–70. See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION

OF THE UNITED STATES § 836 (1833). 408 395 U.S. 486 (1969). 409 395 U.S. at 506–512. 410 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §

840 (1833), quoted with approval in Field v. Clark, 143 U.S. 649, 670 (1892). 411 United States v. Ballin, 144 U.S. 1, 4 (1892). 412Field v. Clark, 143 U.S. 649 (1892); Flint v. Stone Tracy Co., 220 U.S. 107, 

143 (1911). See the dispute in the Court with regard to the application of Field in

an origination clause dispute. United States v. Munoz-Flores, 495 U.S. 385, 391 n. 

4 (1990), and id. at 408 (Justice Scalia concurring in the judgment). A parallel rule 

William Blount in 1797 for attempting to seduce from his duty an 

American agent among the Indians and for negotiating for services 

in behalf of the British Government among the Indians—conduct 

which was not a ‘‘statutable offense’’ and which was not committed 

in his official character, nor during the session of Congress nor at 

the seat of government. 407

In Powell v. McCormack, 408 a suit challenging the exclusion of 

a Member-elect from the House of Representatives, it was argued 

that inasmuch as the vote to exclude was actually in excess of twothirds of the Members it should be treated simply as an expulsion. 

The Court rejected the argument, noting that the House precedents 

were to the effect that it had no power to expel for misconduct occurring prior to the Congress in which the expulsion is proposed, 

as was the case of Mr. Powell’s alleged misconduct, but basing its 

rejection on its inability to conclude that if the Members of the 

House had been voting to expel they would still have cast an affirmative vote in excess of two-thirds. 409

Duty To Keep a Journal 

The object of the clause requiring the keeping of a Journal is 

‘‘to insure publicity to the proceedings of the legislature, and a correspondent responsibility of the members to their respective constituents.’’ 410 When the Journal of either House is put in evidence 

for the purpose of determining whether the yeas and nays were ordered, and what the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein 

that a quorum was present, though not disclosed by the yeas and 

nays, is final. 411 But when an enrolled bill, which has been signed 

by the Speaker of the House and by the President of the Senate, 

in open session receives the approval of the President and is deposited in the Department of State, its authentication as a bill that 

has passed Congress is complete and unimpeachable, and it is not 

competent to show from the Journals of either House that an act 

so authenticated, approved, and deposited, in fact omitted one section actually passed by both Houses of Congress. 412

ART. I—LEGISLATIVE DEPARTMENT 133

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

holds in the case of a duly authenticated official notice to the Secretary of State that 

a state legislature has ratified a proposed amendment to the Constitution. Leser v. 

Garnett, 258 U.S. 130, 137 (1922); see also Coleman v. Miller, 307 U.S. 433 (1939). 413See discussion under Twenty-Seventh Amendment, infra. 414P. L. 90–206, § 225, 81 Stat. 642 (1967), as amended, P. L. 95–19, § 401, 

91 Stat. 45 (1977), as amended, P. L. 99–190, § 135(e), 99 Stat. 1322 (1985). 415P. L. 94–82, § 204(a), 89 Stat. 421. 

SECTION 6. Clause 1. The Senators and Representatives 

shall receive a Compensation for their Services, to be 

ascertained by Law, and paid out of the Treasury of the United 

States. They shall in all Cases, except Treason, Felony and 

Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses and in going 

to and returning from the same; and for any Speech or Debate 

in either House, they shall not be questioned in any other 

Place.

COMPENSATION AND IMMUNITIES OF MEMBERS 

Congressional Pay 

With the surprise ratification of the Twenty-Seventh Amendment, 413 it is now the rule that congressional legislation ‘‘varying’’—note that the Amendment applies to decreases as well as increases—the level of legislators’ pay may not take effect until an 

intervening election has occurred. The only real controversy likely 

to arise in the interpretation of the new rule is whether pay increases that result from automatic alterations in pay are subject to 

the same requirement or whether it is only the initial enactment 

of the automatic device that is covered. That is, from the founding 

to 1967, congressional pay was determined directly by Congress in 

specific legislation setting specific rates of pay. In 1967, a law was 

passed that created a quadrennial commission with the responsibility to propose to the President salary levels for top officials of 

the Government, including Members of Congress. 414 In 1975, Congress legislated to bring Members of Congress within a separate 

commission system authorizing the President to recommend annual 

increases for civil servants to maintain pay comparability with private-sector employees. 415 These devices were attacked by dissenting Members of Congress as violating the mandate of clause 1 

that compensation be ‘‘ascertained by Law[.]’’ However, these chalVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00071 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
134 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

416Pressler v. Simon, 428 F. Supp. 302 (D.D.C. 1976) (three-judge court), aff’d

summarily, 434 U.S. 1028 (1978); Humphrey v. Baker, 848 F.2d 211 (D.C. Cir.), cert.

denied 488 U.S. 966 (1988). 417P.L. 101–194, 103 Stat. 1716, 2 U.S.C. § 31(2), 5 U.S.C. § 5318 note, and 2 

U.S.C. §§ 351–363. 418 Boehner v. Anderson, 809 F. Supp. 138 (D.D.C. 1992) (holding Amendment 

has no effect on present statutory mechanism). 419Long v. Ansell, 293 U.S. 76 (1934). 420 293 U.S. at 83. 421 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800). 422Williamson v. United States, 207 U.S. 425, 446 (1908). 423 United States v. Johnson, 383 U.S. 169, 178 (1966). 424 ‘‘That the Freedom of Speech, and Debates or Proceedings in Parliament, 

ought not to be impeached or questioned in any Court or Place out of Parliament.’’ 

1 W. & M., Sess. 2, c. 2. 425 United States v. Johnson, 383 U.S. 169, 177–179, 180–183 (1966); Powell v. 

McCormack, 395 U.S. 486, 502 (1969). 

lenges were rejected. 416 Thereafter, prior to ratification of the 

Amendment, Congress in the Ethics Reform Act of 1989, 417 altered

both the pay-increase and the cost-of-living-increase provisions of 

law, making quadrennial pay increases effective only after an intervening congressional election and making cost-of-living increases 

dependent upon a specific congressional vote. Litigation of the effect of the Amendment is ongoing. 418

Privilege From Arrest 

This clause is practically obsolete. It applies only to arrests in 

civil suits, which were still common in this country at the time the 

Constitution was adopted. 419 It does not apply to service of process 

in either civil 420 or criminal cases. 421 Nor does it apply to arrest 

in any criminal case. The phrase ‘‘treason, felony or breach of the 

peace’’ is interpreted to withdraw all criminal offenses from the operation of the privilege. 422

Privilege of Speech or Debate 

Members.—This clause represents ‘‘the culmination of a long 

struggle for parliamentary supremacy. Behind these simple 

phrases lies a history of conflict between the Commons and the 

Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical 

legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an 

important protection of the independence and integrity of the legislature.’’ 423 So Justice Harlan explained the significance of the 

speech-and-debate clause, the ancestry of which traces back to a 

clause in the English Bill of Rights of 1689 424 and the history of 

which traces back almost to the beginning of the development of 

Parliament as an independent force. 425 ‘‘In the American governVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00072 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 135

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

426 United States v. Johnson, 383 U.S. 169, 178 (1966). 427 United States v. Brewster, 408 U.S. 501, 507 (1972). This rationale was approvingly quoted from Coffin v. Coffin, 4 Mass. 1, 28 (1808), in Kilbourn v. Thompson, 103 U.S. 168, 203 (1881). 428Powell v. McCormack, 395 U.S. 486, 502 (1969), quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). 429Tenney v. Brandhove, 341 U.S. 367, 376–377 (1972); Dombrowski v. Eastland, 387 U.S. 82, 85 (1967); Powell v. McCormack, 395 U.S. 486, 505 (1969); Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 503 (1975). 430Gravel v. United States, 408 U.S. 606, 625 (1972). The critical nature of the 

clause is shown by the holding in Davis v. Passman, 442 U.S. 228, 235 n.11 (1979), 

that when a Member is sued under the Fifth Amendment for employment discrimination on the basis of gender, only the clause could shield such an employment decision, and not the separation of powers doctrine or emanations from it. Whether the 

clause would be a shield the Court had no occasion to decide and the case was settled on remand without a decision being reached. 431 103 U.S. 168 (1881). But see Gravel v. United States, 408 U. S. 606, 618– 

619 (1972). 

mental structure the clause serves the additional function of reinforcing the separation of powers so deliberately established by the 

Founders.’’ 426 ‘‘The immunities of the Speech or Debate Clause 

were not written into the Constitution simply for the personal or 

private benefit of Members of Congress, but to protect the integrity 

of the legislative process by insuring the independence of individual 

legislators.’’ 427

The protection of this clause is not limited to words spoken in 

debate. ‘‘Committee reports, resolutions, and the act of voting are 

equally covered, as are ‘things generally done in a session of the 

House by one of its members in relation to the business before 

it.’’’ 428 Thus, so long as legislators are ‘‘acting in the sphere of legitimate legislative activity,’’ they are ‘‘protected not only from the 

consequence of litigation’s results but also from the burden of defending themselves.’’ 429 But the scope of the meaning of ‘‘legislative 

activity’’ has its limits. ‘‘The heart of the clause is speech or debate 

in either House, and insofar as the clause is construed to reach 

other matters, they must be an integral part of the deliberative and 

communicative processes by which Members participate in committee and House proceedings with respect to the consideration 

and passage or rejection of proposed legislation or with respect to 

other matters which the Constitution places within the jurisdiction 

of either House.’’ 430 Immunity from civil suit, both in law and equity, and from criminal action based on the performance of legislative duties flows from a determination that a challenged act is 

within the definition of legislative activity, but the Court in the 

more recent cases appears to have narrowed the concept somewhat. 

In Kilbourn v. Thompson, 431 Members of the House of Representatives were held immune in a suit for false imprisonment 

brought about by a vote of the Members on a resolution charging 

136 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

432 395 U.S. 486 (1969). The Court found sufficient the presence of other defendants to enable it to review Powell’s exclusion but reserved the question whether in 

the absence of someone the clause would still preclude suit. Id. at 506 n.26. See

also Kilbourn v. Thompson, 103 U.S. 168, 204 (1881). 

433 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975). 434 387 U.S. 82 (1967). But see the reinterpretation of this case in Gravel v. 

United States, 408 U.S. 606, 619–620 (1972). And see McSurely v. McClellan, 553 

F. 2d 1277 (D.C. Cir. 1976) (en banc), cert. dismissed as improvidently granted, sub 

nom. McAdams v. McSurely, 438 U.S. 189 (1978). 

435Doe v. McMillan, 412 U.S. 306 (1973). 

contempt of one of its committees and under which the plaintiff 

was arrested and detained, even though the Court found that the 

contempt was wrongly voted. Kilbourn was relied on in Powell v. 

McCormack, 432 in which the plaintiff was not allowed to maintain 

an action for declaratory judgment against certain Members of the 

House of Representatives to challenge his exclusion by a vote of the 

entire House. Because the power of inquiry is so vital to performance of the legislative function, the Court held that the clause precluded suit against the Chairman and Members of a Senate subcommittee and staff personnel, to enjoin enforcement of a subpoena 

directed to a third party, a bank, to obtain the financial records of 

the suing organization. The investigation was a proper exercise of 

Congress’ power of inquiry, the subpoena was a legitimate part of 

the inquiry, and the clause therefore was an absolute bar to judicial review of the subcommittee’s actions prior to the possible institution of contempt actions in the courts. 433 And in Dombrowski v. 

Eastland, 434 the Court affirmed the dismissal of an action against 

the chairman of a Senate committee brought on allegations that he 

wrongfully conspired with state officials to violate the civil rights 

of plaintiff. 

Through an inquiry into the nature of the ‘‘legislative acts’’ 

performed by Members and staff, the Court held that the clause 

did not defeat a suit to enjoin the public dissemination of legislative materials outside the halls of Congress. 435 A committee had 

conducted an authorized investigation into conditions in the schools 

of the District of Columbia and had issued a report that the House 

of Representatives routinely ordered printed. In the report, named 

students were dealt with in an allegedly defamatory manner, and 

their parents sued various committee Members and staff and other 

personnel, including the Superintendent of Documents and the 

Public Printer, seeking to restrain further publication, dissemination, and distribution of the report until the objectionable material 

was deleted and also seeking damages. The Court held that the 

Members of Congress and the staff employees had been properly 

dismissed from the suit, inasmuch as their actions—conducting the 

hearings, preparing the report, and authorizing its publication— 

ART. I—LEGISLATIVE DEPARTMENT 137

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

436Difficulty attends an assessment of the effect of the decision, inasmuch as 

the Justices in the majority adopted mutually inconsistent stands, 412 U.S. at 325 

(concurring opinion), and four Justices dissented. Id. at 331, 332, 338. The case 

leaves unresolved as well the propriety of injunctive relief. Compare id. at 330 (Justice Douglas concurring), with id. at 343–45 (three dissenters arguing that separation of powers doctrine forbade injunctive relief). Also compare Davis v. Passman, 

442 U.S. 228, 245, 246 n.24 (1979), with id. at 250–51 (Chief Justice Burger dissenting). 437 Hutchinson v. Proxmire, 443 U.S. 111 (1979). 438 443 U.S. at 126, quoting Gravel v. United States, 408 U.S. 606, 625 (1972). 439 Hutchinson v. Proxmire, 443 U.S. 111, 130, 132–133 (1979). The Court distinguished between the more important ‘‘informing’’ function of Congress, i.e., its efforts to inform itself in order to exercise its legislative powers, and the less important ‘‘informing’’ function of acquainting the public about its activities. The latter 

function the Court did not find an integral part of the legislative process. See

also Doe v. McMillan, 412 U.S. 306, 314–317 (1973). But compare id. at 325 (concurring). For consideration of the ‘‘informing’’ function in its different guises in the context of legislative investigations, see Watkins v. United States, 354 U.S. 178, 200 

(1957); United States v. Rumely, 345 U.S. 41, 43 (1953); Russell v. United States, 

369 U.S. 749, 777–778 (1962) (Justice Douglas dissenting). 

were protected by the clause. The Superintendent of Documents 

and the Public Printer were held, however, to have been properly 

named, because, as congressional employees, they had no broader 

immunity than Members of Congress would have. At this point, the 

Court distinguished between those legislative acts, such as voting, 

speaking on the floor or in committee, issuing reports, which are 

within the protection of the clause, and those acts which enjoy no 

such protection. Public dissemination of materials outside the halls 

of Congress is not protected, the Court held, because it is unnecessary to the performance of official legislative actions. Dissemination 

of the report within the body was protected, whereas dissemination 

in normal channels outside it was not. 436

Bifurcation of the legislative process in this way resulted in 

holding unprotected the republication by a Member of allegedly defamatory remarks outside the legislative body, here through newsletters and press releases. 437 The clause protects more than speech 

or debate in either House, the Court affirmed, but in order for the 

other matters to be covered ‘‘they must be an integral part of the 

deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the 

consideration and passage or rejection of proposed legislation or 

with respect to other matters which the Constitution places within 

the jurisdiction of either House.’’ 438 Press releases and newsletters 

are ‘‘[v]aluable and desirable’’ in ‘‘inform[ing] the public and other 

Members,’’ but neither are essential to the deliberations of the legislative body nor part of the deliberative process. 439

Parallel developments may be discerned with respect to the application of a general criminal statute to call into question the legVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00075 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
138 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

440 383 U.S. 169 (1966). 441 Reserved was the question whether a prosecution that entailed inquiry into 

legislative acts or motivation could be founded upon ‘‘a narrowly drawn statute 

passed by Congress in the exercise of its legislative power to regulate the conduct 

of its members.’’ 383 U.S.. at 185. The question was similarly reserved in United 

States v. Brewster, 408 U.S. 501, 529 n.18 (1972), although Justices Brennan and 

Douglas would have answered negatively. Id. at 529, 540. 442 408 U.S. 501 (1972). 443 408 U.S. at 516. 444 408 U.S. at 526. 445The holding was reaffirmed in United States v. Helstoski, 442 U.S. 477 

(1979). On the other hand, the Court did hold that the protection of the clause is 

so fundamental that, assuming a Member may waive it, a waiver could be found 

islative conduct and motivation of a Member. Thus, in United

States v. Johnson, 440 the Court voided the conviction of a Member 

for conspiracy to impair lawful governmental functions, in the 

course of seeking to divert a governmental inquiry into alleged 

wrongdoing, by accepting a bribe to make a speech on the floor of 

the House of Representatives. The speech was charged as part of 

the conspiracy and extensive evidence concerning it was introduced 

at a trial. It was this examination into the context of the speech— 

its authorship, motivation, and content—which the Court found 

foreclosed by the speech-or-debate clause. 441

However, in United States v. Brewster, 442 while continuing to 

assert that the clause ‘‘must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,’’ 443

the Court substantially reduced the scope of the coverage of the 

clause. In upholding the validity of an indictment of a Member, 

which charged that he accepted a bribe to be ‘‘influenced in his performance of official acts in respect to his action, vote, and decision’’ 

on legislation, the Court drew a distinction between a prosecution 

that caused an inquiry into legislative acts or the motivation for 

performance of such acts and a prosecution for taking or agreeing 

to take money for a promise to act in a certain way. The former 

is proscribed, the latter is not. ‘‘Taking a bribe is, obviously, no 

part of the legislative process or function; it is not a legislative act. 

It is not, by any conceivable interpretation, an act performed as a 

part of or even incidental to the role of a legislator . . . Nor is inquiry into a legislative act or the motivation for a legislative act 

necessary to a prosecution under this statute or this indictment. 

When a bribe is taken, it does not matter whether the promise for 

which the bribe was given was for the performance of a legislative 

act as here or, as in Johnson, for use of a Congressman’s influence 

with the Executive Branch.’’ 444 In other words, it is the fact of having taken a bribe, not the act the bribe is intended to influence, 

which is the subject of the prosecution, and the speech-or-debate 

clause interposes no obstacle to this type of prosecution. 445

ART. I—LEGISLATIVE DEPARTMENT 139

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

only after explicit and unequivocal renunciation, rather than by failure to assert it 

at any particular point. Similarly, Helstoski v. Meanor, 442 U.S. 500 (1979), held 

that since the clause properly applied is intended to protect a Member from even 

having to defend himself, he may appeal immediately from a judicial ruling of nonapplicability rather than wait to appeal after conviction. 446 408 U.S. 606 (1972). 447 408 U.S. at 626. 448Language in some of the Court’s earlier opinions had indicated that the privilege ‘‘is less absolute, although applicable,’’ when a legislative aide is sued, without 

elaboration of what was meant. Dombrowski v. Eastland, 387 U.S. 82, 85 (1967); 

Tenney v. Brandhove, 341 U.S. 367, 378 (1951). In Wheeldin v. Wheeler, 373 U.S. 

647 (1963), the Court had imposed substantial obstacles to the possibility of recovery in appropriate situations by holding that a federal cause of action was lacking 

and remitting litigants to state courts and state law grounds. The case is probably 

no longer viable, however, after Bivens v. Six Unknown Named Agents of the Bureau of Narcotics, 403 U.S. 388 (1971). 449 103 U.S. 168 (1881). 450 387 U.S. 82 (1967). 451 395 U.S. 486 (1969). 452 408 U.S. 606 (1972). 

Applying in the criminal context the distinction developed in 

the civil cases between protected ‘‘legislative activity’’ and unprotected conduct prior to or subsequent to engaging in ‘‘legislative activity,’’ the Court in Gravel v. United States, 446 held that a grand 

jury could validly inquire into the processes by which the Member 

obtained classified government documents and into the arrangements for subsequent private republication of these documents, 

since neither action involved protected conduct. ‘‘While the Speech 

or Debate Clause recognizes speech, voting and other legislative 

acts as exempt from liability that might otherwise attach, it does 

not privilege either Senator or aide to violate an otherwise valid 

criminal law in preparing for or implementing legislative acts.’’ 447

Congressional Employees.—Until recently, it was seemingly 

the basis of the decisions that while Members of Congress may be 

immune from suit arising out of their legislative activities, legislative employees who participate in the same activities under the direction of the Member or otherwise are responsible for their acts 

if those acts be wrongful. 448 Thus, in Kilbourn v. Thompson, 449 the

sergeant at arms of the House was held liable for false imprisonment because he executed the resolution ordering Kilbourn arrested and imprisoned. Dombrowski v. Eastland 450 held that a subcommittee counsel might be liable in damages for actions as to 

which the chairman of the committee was immune from suit. And 

in Powell v. McCormack, 451 the Court held that the presence of 

House of Representative employees as defendants in a suit for declaratory judgment gave the federal courts jurisdiction to review 

the propriety of the plaintiff’s exclusion from office by vote of the 

House. Upon full consideration of the question, however, the Court, 

in Gravel v. United States, 452 accepted a series of contentions urged 

140 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities 

453 408 U.S. at 616–17. 454 408 U.S. at 618. 455 408 U.S. at 618–19. 456 408 U.S. at 619–20. 

upon it not only by the individual Senator but by the Senate itself 

appearing by counsel as amicus: ‘‘that it is literally impossible, in 

view of the complexities of the modern legislative process, with 

Congress almost constantly in session and matters of legislative 

concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the 

Members’ performance that they must be treated as the latters’ 

alter ego; and that if they are not so recognized, the central role 

of the Speech or Debate clause . . . will inevitably be diminished 

and frustrated.’’ 453 Therefore, the Court held ‘‘that the Speech or 

Debate Clause applies not only to a Member but also to his aides 

insofar as the conduct of the latter would be a protected legislative 

act if performed by the Member himself.’’ 454

The Gravel holding, however, does not so much extend congressional immunity to employees as it narrows the actual immunity 

available to both aides and Members in some important respects. 

Thus, the Court says, the legislators in Kilbourn were immune because adoption of the resolution was clearly a legislative act but 

the execution of the resolution—the arrest and detention—was not 

a legislative act immune from liability, so that the House officer 

was in fact liable as would have been any Member who had executed it. 455 Dombrowski was interpreted as having held that no 

evidence implicated the Senator involved, whereas the committee 

counsel had been accused of ‘‘conspiring to violate the constitutional rights of private parties. Unlawful conduct of this kind the 

Speech or Debate Clause simply did not immunize.’’ 456 And Powell was interpreted as simply holding that voting to exclude plaintiff, which was all the House defendants had done, was a legislative act immune from Member liability but not from judicial inquiry. ‘‘None of these three cases adopted the simple proposition 

that immunity was unavailable to House or committee employees 

because they were not Representatives; rather, immunity was unavailable because they engaged in illegal conduct which was not 

entitled to Speech or Debate Clause protection. . . . [N]o prior case 

has held that Members of Congress would be immune if they execute an invalid resolution by themselves carrying out an illegal arrest, or if, in order to secure information for a hearing, themselves 

seize the property or invade the privacy of a citizen. Neither they 

ART. I—LEGISLATIVE DEPARTMENT 141

Sec. 6—Rights and Disabilities of Members Cl. 2—Disabilities of Members 

457 408 U.S. at 620–21. 458 2 J. STORY, COMMENTARIES ON THE CONSTITUITON OF THE UNITED STATES §

864 (1833). 459 34 Stat. 948 (1907). 460 35 Stat. 626 (1909). Congress followed this precedent when the President 

wished to appoint a Senator as Attorney General and the salary had been increased 

pursuant to a process under which Congress did not need to vote to approve but 

could vote to disapprove. The salary was temporarily reduced to its previous level. 

87 Stat. 697 (1975). See also 89 Stat. 1108 (1975) (reducing the salary of a member 

of the Federal Maritime Commission in order to qualify a Representative). 

nor their aides should be immune from liability or questioning in 

such circumstances.’’ 457

Clause 2. No Senator or Representative shall, during the 

Time for which he was elected, be appointed to any civil Office 

under the Authority of the United States, which shall have 

been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office 

under the United States, shall be a Member of either House 

during his Continuance in Office. 

DISABILITIES OF MEMBERS 

Appointment to Executive Office 

‘‘The reasons for excluding persons from offices, who have been 

concerned in creating them, or increasing their emoluments, are to 

take away, as far as possible, any improper bias in the vote of the 

representative, and to secure to the constituents some solemn 

pledge of his disinterestedness. The actual provision, however, does 

not go to the extent of the principle; for his appointment is restricted only ‘during the time, for which he was elected’; thus leaving in full force every influence upon his mind, if the period of his 

election is short, or the duration of it is approaching its natural termination.’’ 458 As might be expected, there is no judicial interpretation of the language of the clause and indeed it has seldom surfaced as an issue. 

In 1909, after having increased the salary of the Secretary of 

State, 459 Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office. 460 The clause became a subject of discussion in 

1937, when Justice Black was appointed to the Court, because Congress had recently increased the amount of pension available to 

Justices retiring at seventy and Mr. Black’s Senate term had still 

142 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 6—Rights and Disabilities of Members Cl. 2—Disabilities of Members 

461The matter gave rise to a case, Ex parte Albert Levitt, 302 U.S. 633 (1937), 

in which the Court declined to pass upon the validity of Justice Black’s appointment. The Court denied the complainant standing, but strangely it did not advert 

to the fact that it was being asked to assume original jurisdiction contrary to 

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803). 462 42 Op. Atty. Gen. No. 36 (January 3, 1969). 463THE FEDERALIST, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. STORY,

COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 866–869 (1833). 464 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 493 (1907); 6 

CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 63–64 (1936). 465 Hinds’, supra §§ 496–499. 466 Cf. Right of a Representative in Congress To Hold Commission in National 

Guard, H. Rep. No. 885, 64th Congress, 1st sess. (1916). 

some time to run. The appointment was defended, however, with 

the argument that inasmuch as Mr. Black was only fifty-one years 

of age at the time, he would be ineligible for the ‘‘increased emolument’’ for nineteen years and it was not as to him an increased 

emolument. 461 In 1969, it was briefly questioned whether a Member of the House of Representatives could be appointed Secretary 

of Defense because, under a salary bill enacted in the previous 

Congress, the President would propose a salary increase, including 

that of cabinet officers, early in the new Congress which would 

take effect if Congress did not disapprove it. The Attorney General 

ruled that inasmuch as the clause would not apply if the increase 

were proposed and approved subsequent to the appointment, it 

similarly would not apply in a situation in which it was uncertain 

whether the increase would be approved. 462

Incompatible Offices 

This second part of the second clause elicited little discussion 

at the Convention and was universally understood to be a safeguard against executive influence on Members of Congress and the 

prevention of the corruption of the separation of powers. 463 Congress has at various times confronted the issue in regard to seating 

or expelling persons who have or obtain office in another branch. 

Thus, it has determined that visitors to academies, regents, directors, and trustees of public institutions, and members of temporary 

commissions who receive no compensation as members are not officers within the constitutional inhibition. 464 Government contractors and federal officers who resign before presenting their credentials may be seated as Members of Congress. 465

One of the more recurrent problems which Congress has had 

with this clause is the compatibility of congressional office with 

service as an officer of some military organization—militia, reserves, and the like. 466 Members have been unseated for accepting 

appointment to military office during their terms of congressional 

ART. I—LEGISLATIVE DEPARTMENT 143

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

467 Hinds’, supra §§ 486–492, 494; Cannon’s, supra §§ 60–62. 468 An effort to sustain standing was rebuffed in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). 

office, 467 but there are apparently no instances in which a Memberelect has been excluded for this reason. Because of the difficulty of 

successfully claiming standing, the issue has never been a 

litigatible matter. 468

SECTION 7. Clause 1. All Bills for raising Revenue shall 

originate in the House of Representatives; but the Senate may 

propose or concur with Amendments as on other Bills. 

Clause 2. Every Bill which shall have passed the House of 

Representatives and the Senate, shall, before it become a Law, 

be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it, with his 

Objections to that House in which it shall have originated, who 

shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds 

of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it 

shall likewise be reconsidered, and if approved by two thirds of 

that House, it shall become a Law. But in all such Cases the 

Votes of both Houses shall be determined by Yeas and Nays, 

and the Names of the Persons voting for and against the Bill 

shall be entered on the Journal of each House respectively. If 

any Bill shall not be returned by the President within ten Days 

(Sundays excepted) after it shall have been presented to him, 

the Same shall be a Law, in like Manner as if he had signed 

it, unless the Congress by their Adjournment prevent its Return in which Case it shall not be a Law. 

Clause 3. Every Order, Resolution, or Vote to which the 

Concurrence of the Senate and House of Representatives may 

144 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

469THE FEDERALIST, No. 58 (J. Cooke ed. 1961), 392–395 (Madison). See United

States v. Munoz-Flores, 495 U.S. 385, 393–395 (1990). 470The issue of coverage is sometimes important, as in the case of the Tax Equity and Fiscal Responsibility Act of 1982, 96 Stat. 324, in which the House passed 

a bill that provided for a net loss in revenue and the Senate amended the bill to 

provide a revenue increase of more than $98 billion over three years. Attacks on 

the law as a violation of the origination clause failed before assertions of political 

question, standing, and other doctrines. E.g., Texas Ass’n of Concerned Taxpayers 

v. United States, 772 F.2d 163 (5th Cir. 1985); Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985). 471 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §

880 (1833). 472 United States v. Munoz-Flores, 495 U.S. 385 (1990). 473Twin City National Bank v. Nebeker, 167 U.S. 196 (1897). 

be necessary (except on a question of Adjournment) shall be 

presented to the President of the United States; and before the 

Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate 

and House of Representatives, according to the Rules and Limitation prescribed in the Case of a Bill. 

THE LEGISLATIVE PROCESS 

Revenue Bills 

Insertion of this clause was another of the devices sanctioned 

by the Framers to preserve and enforce the separation of powers. 469 It applies, in the context of the permissibility of Senate 

amendments to a House-passed bill, to all bills for collecting revenue—revenue decreasing as well as revenue increasing—rather 

than simply to just those bills that increase revenue. 470

Only bills to levy taxes in the strict sense of the word are comprehended by the phrase ‘‘all bills for raising revenue’’; bills for 

other purposes, which incidentally create revenue, are not included. 471 Thus, a Senate-initiated bill that provided for a monetary ‘‘special assessment’’ to pay into a crime victims fund did not 

violate the clause, because it was a statute that created and raised 

revenue to support a particular governmental program and was not 

a law raising revenue to support Government generally. 472 An act 

providing a national currency secured by a pledge of bonds of the 

United States, which, ‘‘in the furtherance of that object, and also 

to meet the expenses attending the execution of the act,’’ imposed 

a tax on the circulating notes of national banks was held not to be 

a revenue measure which must originate in the House of Representatives. 473 Neither was a bill that provided that the District 

of Columbia should raise by taxation and pay to designated railVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00082 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 145

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

474Millard v. Roberts, 202 U.S. 429 (1906). 475Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911). 476 Rainey v. United States, 232 U.S. 310 (1914). 477La Abra Silver Mining Co. v. United States, 175 U.S. 423, 453 (1899). 478 Edwards v. United States, 286 U.S. 482 (1932). On one occasion in 1936, 

delay in presentation of a bill enabled the President to sign it 23 days after the adjournment of Congress. Schmeckebier, Approval of Bills After Adjournment of Congress, 33 AM. POL. SCI. REV. 52–53 (1939). 479Gardner v. Collector, 73 U.S. (6 Wall.) 499 (1868). 480 73 U.S. at 504. See also Burgess v. Salmon, 97 U.S. 381, 383 (1878). 481Matthews v. Zane, 20 U.S. (7 Wheat.) 164, 211 (1822). 482Lapeyre v. United States, 84 U.S. (17 Wall.) 191, 198 (1873). 483Wright v. United States, 302 U. S. 583, 596 (1938). 484 302 U.S. at 596. 

road companies a specified sum for the elimination of grade crossings and the construction of a railway station. 474 The substitution 

of a corporation tax for an inheritance tax, 475 and the addition of 

a section imposing an excise tax upon the use of foreign-built pleasure yachts, 476 have been held to be within the Senate’s constitutional power to propose amendments. 

Approval by the President 

The President is not restricted to signing a bill on a day when 

Congress is in session. 477 He may sign within ten days (Sundays 

excepted) after the bill is presented to him, even if that period extends beyond the date of the final adjournment of Congress. 478 His

duty in case of approval of a measure is merely to sign it. He need 

not write on the bill the word ‘‘approved’’ nor the date. If no date 

appears on the face of the roll, the Court may ascertain the fact 

by resort to any source of information capable of furnishing a satisfactory answer. 479 A bill becomes a law on the date of its approval 

by the President. 480 When no time is fixed by the act it is effective 

from the date of its approval, 481 which usually is taken to be the 

first moment of the day, fractions of a day being disregarded. 482

The Veto Power 

The veto provisions, the Supreme Court has told us, serve two 

functions. On the one hand, they ensure that ‘‘the President shall 

have suitable opportunity to consider the bills presented to him. ... 

It is to safeguard the President’s opportunity that Paragraph 2 of 

§ 7 of Article I provides that bills which he does not approve shall 

not become law if the adjournment of the Congress prevents their 

return.’’ 483 At the same time, the sections ensure ‘‘that the Congress shall have suitable opportunity to consider his objections to 

bills and on such consideration to pass them over his veto provided 

there are the requisite votes.’’ 484 The Court asserted that ‘‘[w]e 

146 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

485 Id. 486See Line Item Veto: Hearing Before the Senate Committee on Rules and Administration, 99th Cong., 1st sess. (1985), esp. 10–20 (CRS memoranda detailing the 

issues). Some publicists have even contended, through a strained interpretation of 

clause 3, actually from its intended purpose to prevent Congress from subverting 

the veto power by calling a bill by some other name, that the President already possesses the line-item veto, but no President could be brought to test the thesis. 

See Pork Barrels and Principles - The Politics of the Presidential Veto, (Natl.Legal 

Center for the Public Interest, 19–8) (collecting essays). 487 279 U.S. 655 (1929). 488 279 U.S. at 680. 

should not adopt a construction which would frustrate either of 

these purposes.’’ 485

In one major respect, however, the President’s actual desires 

may be frustrated by the presentation to him of omnibus bills or 

of bills containing extraneous riders. During the 1980s, on several 

occasions, Congress lumped all the appropriations for the operation 

of the Government into one gargantuan bill. But the President 

must sign or veto the entire bill; doing the former may mean he 

has to accept provisions he would not sign standing alone, and 

doing the latter may have other adverse consequences. Numerous 

Presidents from Grant on have unsuccessfully sought by constitutional amendment a ‘‘line-item veto’’ by which individual items in 

an appropriations bill or a substantive bill could be extracted and 

vetoed. More recently, beginning in the FDR Administration, it has 

been debated whether Congress could by statute authorize a form 

of the line-item veto, but, again, nothing passed. 486

That the interpretation of the provisions has not been entirely 

consistent is evident from a review of the only two Supreme Court 

decisions construing them. In The Pocket Veto Case, 487 the Court 

held that the return of a bill to the Senate, where it originated, had 

been prevented when the Congress adjourned its first session sine

die fewer than ten days after presenting the bill to the President. 

The word ‘‘adjournment’’ was seen to have been used in the Constitution not in the sense of final adjournments but to any occasion 

on which a House of Congress is not in session. ‘‘We think that 

under the constitutional provision the determinative question in 

reference to an ‘adjournment’ is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that ‘prevents’ the 

President from returning the bill to the House in which it originated within the time allowed.’’ 488 Because neither House was in 

session to receive the bill, the President was prevented from returning it. It had been argued to the Court that the return may 

be validly accomplished to a proper agent of the house of origin for 

consideration when that body convenes. After first noting that ConVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00084 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 147

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

489 279 U.S. at 684. 490 302 U.S. 583 (1938). 491 302 U.S. at 589–90. 492 302 U.S. at 589. 493 302 U.S. at 595. 494 511 F. 2d 430 (D.C. Cir. 1974). The Administration declined to appeal the 

case to the Supreme Court. The adjournment here was for five days. Subsequently, 

the President attempted to pocket veto two other bills, one during a 32 day recess 

and one during the period which Congress had adjourned sine die from the first to 

the second session of the 93d Congress. After renewed litigation, the Administration 

entered its consent to a judgment that both bills had become law, Kennedy v. Jones, 

Civil Action No. 74–194 (D.D.C., decree entered April 13, 1976), and it was announced that President Ford ‘‘will use the return veto rather than the pocket veto 

during intra-session and intersession recesses and adjournments of the Congress’’, 

provided that the House to which the bill must be returned has authorized an officer to receive vetoes during the period it is not in session. President Reagan repudigress had never authorized an agent to receive bills during adjournment, the Court opined that ‘‘delivery of the bill to such officer 

or agent, even if authorized by Congress itself, would not comply 

with the constitutional mandate.’’ 489

However, in Wright v. United States, 490 the Court held that 

the President’s return of a bill on the tenth day after presentment, 

during a three-day adjournment by the originating House only, to 

the Secretary of the Senate was an effective return. In the first 

place, the Court thought, the pocket veto clause referred only to an 

adjournment of ‘‘the Congress,’’ and here only the Senate, the originating body, had adjourned. The President can return the bill to 

the originating House if that body be in an intrasession adjournment, because there is no ‘‘practical difficulty’’ in effectuating the 

return. ‘‘The organization of the Senate continued and was intact. 

The Secretary of the Senate was functioning and was able to receive, and did receive the bill.’’ 491 Such a procedure complied with 

the constitutional provisions. ‘‘The Constitution does not define 

what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.’’ 492 The concerns activating 

the Court in The Pocket Veto Case were not present. There was no 

indefinite period in which a bill was in a state of suspended animation with public uncertainty over the outcome. ‘‘When there is nothing but such a temporary recess the organization of the House and 

its appropriate officers continue to function without interruption, 

the bill is properly safeguarded for a very limited time and is 

promptly reported and may be reconsidered immediately after the 

short recess is over.’’ 493

The tension between the two cases, even though at a certain 

level of generality they are consistent because of factual differences, has existed without the Supreme Court yet having occasion to review the issue again. But in Kennedy v. Sampson, 494 an

148 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

ated this agreement and vetoed a bill during an intersession adjournment. Although 

the lower court applied Kennedy v. Sampson to strike down the exercise of the 

power, but the case was mooted prior to Supreme Court review. Barnes v. Kline, 

759 F.2d 21 (D.C. Cir. 1985), vacated and remanded to dismiss sub nom. Burke v. 

Barnes, 479 U.S. 361 (1987). 495Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919). 496 87 U.S. (20 Wall.) 92 (1874). 497 12 Stat. 589 (1862). 498See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. 

ed. 1937), 301–302, 304–305. 499S. Rep. No. 1335, 54th Congress, 2d Sess.; 4 HINDS’ PRECEDENTS OF THE

HOUSE OF REPRESENTATIVES § 3483 (1907). 

appellate court held that a return is not prevented by an 

intrasession adjournment of any length by one or both Houses of 

Congress, so long as the originating House arranged for receipt of 

veto messages. The court stressed that the absence of the evils 

deemed to bottom the Court’s premises in The Pocket Veto Case—

long delay and public uncertainty—made possible the result. 

The two-thirds vote of each House required to pass a bill over 

a veto means two-thirds of a quorum. 495 After a bill becomes law, 

of course, the President has no authority to repeal it. Asserting this 

truism, the Court in The Confiscation Cases 496 held that the immunity proclamation issued by the President in 1868 did not require 

reversal of a decree condemning property seized under the Confiscation Act of 1862. 497

Presentation of Resolutions 

Concerned that Congress might endeavor to evade the veto 

clause by designating a measure having legislative import as something other than a bill, the Framers inserted cl. 3. 498 Obviously, if 

construed literally, the clause could have bogged down the intermediate stages of the legislative process, and Congress made practical adjustments regarding it. On the request of the Senate, the 

Judiciary Committee in 1897 published a comprehensive report detailing how the clause had been interpreted over the years, and in 

the same manner it is treated today. Briefly, it was shown that the 

word ‘‘necessary’’ in the clause had come to refer to the necessity 

required by the Constitution of law-making; that is, any ‘‘order, 

resolution, or vote’’ if it is to have the force of law must be submitted. But ‘‘votes’’ taken in either House preliminary to the final 

passage of legislation need not be submitted to the other House or 

to the President nor must resolutions passed by the Houses concurrently expressing merely the views of Congress. 499 Also, it was settled as early as 1789 that resolutions of Congress proposing amendments to the Constitution need not be submitted to the President, 

the Bill of Rights having been referred to the States without being 

ART. I—LEGISLATIVE DEPARTMENT 149

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

500 Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). 501 Act of June 30, 1932, § 407, 47 Stat. 414. 502See, e.g., Lend Lease Act of March 11, 1941, 55 Stat. 31; First War Powers 

Act of December 18, 1941, 55 Stat. 838; Emergency Price Control Act of January 

30, 1942, 56 Stat. 23; Stabilization Act of October 2, 1942, 56 Stat. 765; War Labor 

Disputes Act of June 25, 1943, 57 Stat. 163, all providing that the powers granted 

to the President should come to an end upon adoption of concurrent resolutions to 

that effect. 503From 1932 to 1983, by one count, nearly 300 separate provisions giving Congress power to halt or overturn executive action had been passed in nearly 200 acts; 

substantially more than half of these had been enacted since 1970. A partial listing 

was included in The Constitution, Jefferson’s Manual and Rules of the House of Representatives, H. Doc. No. 96–398, 96th Congress, 2d Sess. (1981), 731–922. A more 

up-to-date listing, in light of the Supreme Court’s ruling, is contained in H. Doc. No. 

101–256, 101st Cong., 2d sess. (1991), 907–1054. Justice White’s dissent in INS v. 

Chadha, 462 U.S. 919, 968–974, 1003–1013 (1983), describes and lists many kinds 

of such vetoes. The types of provisions varied widely. Many required congressional 

approval before an executive action took effect, but more commonly they provided 

for a negative upon executive action, by concurrent resolution of both Houses, by 

resolution of only one House, or even by a committee of one House. 504 A bill providing for this failed to receive the two-thirds vote required to pass 

under suspension of the rules by only three votes in the 94th Congress. H.R. 12048, 

94th Congress, 2d sess. See H. Rep. No. 94–1014, 94th Congress, 2d sess. (1976), 

and 122 CONG. REC. 31615–641, 31668. Considered extensively in the 95th and 96th 

Congresses, similar bills were not adopted. See Regulatory Reform and Congressional Review of Agency Rules: Hearings Before the Subcommittee on Rules of the 

House of the House Rules Committee, 96th Congress, 1st sess. (1979); Regulatory 

Reform Legislation: Hearings Before the Senate Committee on Governmental Affairs, 96th Congress, 1st sess. (1979). 

laid before President Washington for his approval—a procedure the 

Court ratified in due course. 500

The Legislative Veto.—Beginning in the 1930s, the concurrent resolution (as well as the simple resolution) was put to a new 

use—serving as the instrument to terminate powers delegated to 

the Chief Executive or to disapprove particular exercises of power 

by him or his agents. The ‘‘legislative veto’’ or ‘‘congressional veto’’ 

was first developed in context of the delegation to the Executive of 

power to reorganize governmental agencies, 501 and was really 

furthered by the necessities of providing for national security and 

foreign affairs immediately prior to and during World War II. 502

The proliferation of ‘‘congressional veto’’ provisions in legislation 

over the years raised a series of interrelated constitutional questions. 503 Congress until relatively recently had applied the veto 

provisions to some action taken by the President or another executive officer—such as a reorganization of an agency, the lowering or 

raising of tariff rates, the disposal of federal property—then began 

expanding the device to give itself a negative over regulations 

issued by executive branch agencies, and proposals were made to 

give Congress a negative over all regulations issued by executive 

branch independent agencies. 504

150 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

505 462 U.S. 919 (1983). 506Shortly after deciding Chadha, the Court removed any doubts on this score 

with summary affirmance of an appeals court’s invalidation of a two-House veto in 

Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982), aff’d sub nom. Process Gas 

Consumers Group v. Consumer Energy Council, 463 U.S. 1216 (1983). Prior to 

Chadha, an appellate court in AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982), had 

voided a form of committee veto, a provision prohibiting the availability of certain 

funds for a particular purpose without the prior approval of the Committees on Appropriations. 507 Chadha, 462 U.S. at 967. Justice Powell concurred separately, asserting that 

Congress had violated separation of powers principles by assuming a judicial function in determining that a particular individual should be deported. Justice Powell 

therefore found it unnecessary to express his view on ‘‘the broader question of 

whether legislative vetoes are invalid under the Presentment Clauses.’’ Id. at 959. 508 462 U.S. at 952 (citation omitted). 

In INS v. Chadha, 505 the Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Art. I, §§ 1 and 7, and the presentment 

provisions of § 7, cl. 2 and 3. The provision in question was § 

244(c)(2) of the Immigration and Nationality Act, which authorized 

either House of Congress by resolution to veto the decision of the 

Attorney General to allow a particular deportable alien to remain 

in the country. The Court’s analysis of the presentment issue made 

clear, however, that two-House veto provisions, despite their compliance with bicameralism, and committee veto provisions suffer 

the same constitutional infirmity. 506 In the words of dissenting 

Justice White, the Court in Chadha ‘‘sound[ed] the death knell for 

nearly 200 other statutory provisions in which Congress has reserved a ‘legislative veto.’’’ 507

In determining that veto of the Attorney General’s decision on 

suspension of deportation was a legislative action requiring presentment to the President for approval or veto, the Court set forth 

the general standard. ‘‘Whether actions taken by either House are, 

in law and in fact, an exercise of legislative power depends not on 

their form but upon ‘whether they contain matter which is properly 

to be regarded as legislative in its character and effect.’ [T]he action taken here . . . was essentially legislative,’’ the Court concluded, because ‘‘it had the purpose and effect of altering the legal 

rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the legislative branch.’’ 508

The other major component of the Court’s reasoning in 

Chadha stemmed from its reading of the Constitution as making 

only ‘‘explicit and unambiguous’’ exceptions to the bicameralism 

and presentment requirements. Thus the House alone was given 

power of impeachment, and the Senate alone was given power to 

convict upon impeachment, to advise and consent to executive apVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00088 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 151

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process 

509 462 U.S. at 955–56. 510 478 U.S. 714 (1986). See also Metropolitan Washington Airports Auth. v. 

Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991). 511 Bowsher v. Synar, 478 U.S. 714, 733 (1986). This position was developed at 

greater length in the concurring opinion of Justice Stevens. Id. at 736. 512Pub. L. 104–130, 110 Stat. 1200, codified in part at 2 U.S.C. §§691–92. 513 Id. at § 691(a)(A). 

pointments, and to advise and consent to treaties; similarly, the 

Congress may propose a constitutional amendment without the 

President’s approval, and each House is given autonomy over certain ‘‘internal matters,’’ e.g., judging the qualifications of its members. By implication then, exercises of legislative power not falling 

within any of these ‘‘narrow, explicit, and separately justified’’ exceptions must conform to the prescribed procedures: ‘‘passage by a 

majority of both Houses and presentment to the President.’’ 509

The breadth of the Court’s ruling in Chadha was evidenced in 

its 1986 decision in Bowsher v. Synar. 510 Among the rationales for 

holding the Deficit Control Act unconstitutional was the Court’s assertion that Congress had, in effect, retained control over executive 

action in a manner resembling a congressional veto. ‘‘[A]s 

Chadha makes clear, once Congress makes its choice in enacting 

legislation, its participation ends. Congress can thereafter control 

the execution of its enactment only indirectly—by passing new legislation.’’ 511 Congress had offended this principle by retaining removal authority over the Comptroller General, charged with executing important aspects of the Budget Act. 

That Chadha does not spell the end of some forms of the legislative veto is evident from events since 1983, which have seen the 

enactment of various devices, such as ‘‘report and wait’’ provisions 

and requirements for various consultative steps before action may 

be undertaken. But the decision has stymied the efforts in Congress to confine the discretion it confers through delegation by giving it a method of reviewing and if necessary voiding actions and 

rules promulgated after delegations. 

The Line Item Veto.—For more than a century, United States 

Presidents had sought the authority to strike out of appropriations 

bills particular items, to veto ‘‘line items’’ of money bills and sometimes legislative measures as well. Finally, in 1996, Congress approved and the President signed the Line Item Veto Act. 512 The

law empowered the President, within five days of signing a bill, to 

‘‘cancel in whole’’ spending items and targeted, defined tax benefits. 

In acting on this authority, the President was to determine that 

the cancellation of each item would ‘‘(i) reduce the Federal budget 

deficit; (ii) not impair any essential Government functions; and (iii) 

not harm the national interest.’’ 513 In Clinton v. City of New 

152 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

514 524 U.S. 417(1998). 515 E.g., H. R. Conf. Rep. No. 104–491, 104th Cong., 2d Sess., 15 (1996) (stating 

that the proposed law ‘‘delegates limited authority to the President’’). 516 524 U.S. at 453 (Justice Scalia concurring in part and dissenting in part); 

id. at 469 (Justice Breyer dissenting). 517 524 U.S. at 438–39 (citing and quoting INS v. Chadha, 462 U.S. 919, 951 

(1983)). 518 524 U.S. at 439. 

York, 514 the Court held the Act to be unconstitutional because it 

did not comply with the presentment clause. 

Although Congress in passing the Act considered itself to have 

been delegating power, 515 and although the dissenting Justices 

would have upheld the Act as a valid delegation, 516 the Court instead analyzed the statute under the presentment clause. In the 

Court’s view, the two bills from which the President subsequently 

struck items became law the moment the President signed them. 

His cancellations thus amended and in part repealed the two federal laws. Under its most immediate precedent, the Court continued, statutory repeals must conform to the presentment clauses’s 

‘‘single, finely wrought and exhaustively considered, procedure’’ for 

enacting or repealing a law. 517 In no respect did the procedures in 

the Act comply with that clause, and in no way could they. The 

President was acting in a legislative capacity, altering a law in the 

manner prescribed, and legislation must, in the way Congress 

acted, be bicameral and be presented to the President after Congress acted. Nothing in the Constitution authorized the President 

to amend or repeal a statute unilaterally, and the Court could construe both constitutional silence and the historical practice over 

200 years as ‘‘an express prohibition’’ of the President’s action. 518

SECTION 8.. Clause 1. The Congress shall have Power to lay 

and collect Taxes, Duties, Imposts and Excises, to pay the 

Debts and provide for the common Defence and general Welfare 

of the United States; but all Duties, Imposts and Excises shall 

be uniform throughout the United States. 

POWER TO TAX AND SPEND 

Kinds of Taxes Permitted 

By the terms of the Constitution, the power of Congress to levy 

taxes is subject to but one exception and two qualifications. Articles 

exported from any State may not be taxed at all. Direct taxes must 

be levied by the rule of apportionment and indirect taxes by the 

rule of uniformity. The Court has emphasized the sweeping charVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00090 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 153

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

519License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). 520 Brushaber v. Union Pacific R.R., 240 U.S. 1 (1916). 521 240 U.S. at 12. 522 253 U.S. 245 (1920). 523 268 U.S. 501 (1925). 524 307 U.S. 277 (1939). 525 78 U.S. (11 Wall.) 113 (1871). 526Graves v. New York ex rel. O’Keefe, 306 U.S. 466 (1939). Collector v. 

Day was decided in 1871 while the country was still in the throes of Reconstruction. 

As noted by Chief Justice Stone in a footnote to his opinion in Helvering v. 

Gerhardt, 304 U.S. 405, 414 n.4 (1938), the Court had not determined how far the 

Civil War Amendments had broadened the federal power at the expense of the 

States, but the fact that the taxing power had recently been used with destructive 

effect upon notes issued by the state banks, Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 

533 (1869), suggested the possibility of similar attacks upon the existence of the 

States themselves. Two years later, the Court took the logical step of holding that 

the federal income tax could not be imposed on income received by a municipal corporation from its investments. United States v. Railroad Co., 84 U.S. (17 Wall.) 322 

(1873). A far-reaching extension of private immunity was granted in Pollock v. 

Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), where interest received by a private investor on state or municipal bonds was held to be exempt from federal taxation. (Though relegated to virtual desuetude, Pollock was not expressly overruled 

until South Carolina v. Baker, 485 U.S. 505 (1988)). As the apprehension of this era 

subsided, the doctrine of these cases was pushed into the background. It never received the same wide application as did McCulloch v. Maryland, 17 U.S. (4 Wheat.) 

316 (1819), in curbing the power of the States to tax operations or instrumentalities 

of the Federal Government. Only once since the turn of the century has the national 

taxing power been further narrowed in the name of dual federalism. In 1931 the 

Court held that a federal excise tax was inapplicable to the manufacture and sale 

to a municipal corporation of equipment for its police force. Indian Motorcycle v. 

United States, 283 U.S. 570 (1931). Justices Stone and Brandeis dissented from this 

decision, and it is doubtful whether it would be followed today. Cf. Massachusetts

v. United States, 435 U.S. 444 (1978). 

acter of this power by saying from time to time that it ‘‘reaches 

every subject,’’ 519 that it is ‘‘exhaustive’’ 520 or that it ‘‘embraces 

every conceivable power of taxation.’’ 521 Despite these generalizations, the power has been at times substantially curtailed by judicial decision with respect to the subject matter of taxation, the 

manner in which taxes are imposed, and the objects for which they 

may be levied. 

Decline of the Forbidden Subject Matter Test.—The Supreme Court has restored to Congress the power to tax most of the 

subject matter which had previously been withdrawn from its reach 

by judicial decision. The holding of Evans v. Gore 522 and Miles v. 

Graham 523 that the inclusion of the salaries received by federal 

judges in measuring the liability for a nondiscriminatory income 

tax violated the constitutional mandate that the compensation of 

such judges should not be diminished during their continuance in 

office was repudiated in O’Malley v. Woodrough. 524 The specific ruling of Collector v. Day 525 that the salary of a state officer is immune to federal income taxation also has been overruled. 526 But

the principle underlying that decision—that Congress may not lay 

154 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

527 At least, if the various opinions in New York v. United States, 326 U.S. 572 

(1946), retain force, and they may in view of (a later) New York v. United States, 

505 U.S. 144 (1992), a commerce clause case rather than a tax case. 528 25 U.S. (12 Wheat.) 419, 444 (1827). 529Snyder v. Bettman, 190 U.S. 249, 254 (1903). 530South Carolina v. United States, 199 U.S. 437 (1905). See also Ohio v. 

Helvering, 292 U.S. 360 (1934). 531 220 U.S. 107 (1911). 532Greiner v. Lewellyn, 258 U.S. 384 (1922). 533Wheeler Lumber Co. v. United States, 281 U.S. 572 (1930). 534 Board of Trustees v. United States, 289 U.S. 48 (1933). 535 Allen v. Regents, 304 U.S. 439 (1938). 

a tax which would impair the sovereignty of the States—is still recognized as retaining some vitality. 527

Federal Taxation of State Interests.—In 1903 a succession 

tax upon a bequest to a municipality for public purposes was 

upheld on the ground that the tax was payable out of the estate 

before distribution to the legatee. Looking to form and not to substance, in disregard of the mandate of Brown v. Maryland, 528 a

closely divided Court declined to ‘‘regard it as a tax upon the municipality, though it might operate incidentally to reduce the bequest by the amount of the tax.’’ 529 When South Carolina embarked upon the business of dispensing alcoholic beverages, its 

agents were held to be subject to the national internal revenue tax, 

the ground of the holding being that in 1787 such a business was 

not regarded as one of the ordinary functions of government. 530

Another decision marking a clear departure from the logic of 

Collector v. Day was Flint v. Stone Tracy Co., 531 where the Court 

sustained an act of Congress taxing the privilege of doing business 

as a corporation, the tax being measured by the income. The argument that the tax imposed an unconstitutional burden on the exercise by a State of its reserved power to create corporate franchises 

was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises 

were private property. This case also qualified Pollock v. Farmers’ 

Loan & Trust Co. to the extent of allowing interest on state bonds 

to be included in measuring the tax on the corporation. 

Subsequent cases have sustained an estate tax on the net estate of a decedent, including state bonds, 532 excise taxes on the 

transportation of merchandise in performance of a contract to sell 

and deliver it to a county, 533 on the importation of scientific apparatus by a state university, 534 on admissions to athletic contests 

sponsored by a state institution, the net proceeds of which were 

used to further its educational program, 535 and on admissions to 

recreational facilities operated on a nonprofit basis by a municipal 

ART. I—LEGISLATIVE DEPARTMENT 155

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

536Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). 537Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926). 538 Helvering v. Powers, 293 U.S. 214 (1934). 539Willcuts v. Bunn, 282 U.S. 216 (1931). 540 Helvering v. Producers Corp., 303 U.S. 376 (1938), overruling Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932). 541South Carolina v. Baker, 485 U.S. 505, 517 (1988). 542 485 U.S. at 524. 543 New York v. United States, 326 U.S. 572, 584 (1946) (concurring opinion of 

Justice Rutledge). 544 304 U.S. 405 (1938). 

corporation. 536 Income derived by independent engineering contractors from the performance of state functions, 537 the compensation 

of trustees appointed to manage a street railway taken over and 

operated by a State, 538 profits derived from the sale of state 

bonds, 539 or from oil produced by lessees of state lands, 540 have all 

been held to be subject to federal taxation despite a possible economic burden on the State. 

In finally overruling Pollock, the Court stated that Pollock had

‘‘merely represented one application of the more general rule that 

neither the federal nor the state governments could tax income an 

individual directly derived from any contract with another government.’’ 541 That rule, the Court observed, had already been rejected 

in numerous decisions involving intergovernmental immunity. ‘‘We 

see no constitutional reason for treating persons who receive interest on governmental bonds differently than persons who receive income from other types of contracts with the government, and no 

tenable rationale for distinguishing the costs imposed on States by 

a tax on state bond interest from the costs imposed by a tax on the 

income from any other state contract.’’ 542

Scope of State Immunity From Federal Taxation.—Although there have been sharp differences of opinion among members of the Supreme Court in cases dealing with the tax immunity 

of state functions and instrumentalities, it has been stated that ‘‘all 

agree that not all of the former immunity is gone.’’ 543 Twice, the 

Court has made an effort to express its new point of view in a 

statement of general principles by which the right to such immunity shall be determined. However, the failure to muster a majority 

in concurrence with any single opinion in the latter case leaves the 

question very much in doubt. In Helvering v. Gerhardt, 544 where,

without overruling Collector v. Day, it narrowed the immunity of 

salaries of state officers from federal income taxation, the Court 

announced ‘‘two guiding principles of limitation for holding the tax 

immunity of State instrumentalities to its proper function. The one, 

dependent upon the nature of the function being performed by the 

State or in its behalf, excludes from the immunity activities 

156 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

545 304 U.S. at 419–20. 546 326 U.S. 572 (1946). 547 326 U.S. at 584. 548 326 at 589–90. 549 326 U.S. at 596. 

thought not to be essential to the preservation of State governments even though the tax be collected from the State treasury. . . . 

The other principle, exemplified by those cases where the tax laid 

upon individuals affects the State only as the burden is passed on 

to it by the taxpayer, forbids recognition of the immunity when the 

burden on the State is so speculative and uncertain that if allowed 

it would restrict the federal taxing power without affording any 

corresponding tangible protection to the State government; even 

though the function be thought important enough to demand immunity from a tax upon the State itself, it is not necessarily protected from a tax which well may be substantially or entirely absorbed by private persons.’’ 545

The second attempt to formulate a general doctrine was made 

in New York v. United States, 546 where, on review of a judgment 

affirming the right of the United States to tax the sale of mineral 

waters taken from property owned and operated by the State of 

New York, the Court reconsidered the right of Congress to tax business enterprises carried on by the States. Justice Frankfurter, 

speaking for himself and Justice Rutledge, made the question of 

discrimination vel non against state activities the test of the validity of such a tax. They found ‘‘no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter.’’ 547 In a concurring opinion in 

which Justices Reed, Murphy, and Burton joined, Chief Justice 

Stone rejected the criterion of discrimination. He repeated what he 

had said in an earlier case to the effect that ‘‘the limitation upon 

the taxing power of each, so far as it affects the other, must receive 

a practical construction which permits both to function with the 

minimum of interference each with the other; and that limitation 

cannot be so varied or extended as seriously to impair either the 

taxing power of the government imposing the tax . . . or the appropriate exercise of the functions of the government affected by it.’’ 548

Justices Douglas and Black dissented in an opinion written by the 

former on the ground that the decision disregarded the Tenth 

Amendment, placed ‘‘the sovereign States on the same plane as private citizens,’’ and made them ‘‘pay the Federal Government for the 

privilege of exercising powers of sovereignty guaranteed them by 

the Constitution.’’ 549 In a later case dealing with state immunity 

the Court sustained the tax on the second ground mentioned in 

ART. I—LEGISLATIVE DEPARTMENT 157

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

550Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). Cf. Massachusetts v. 

United States, 435 U.S. 444 (1978). 551 485 U.S. 505 (1988). 552 485 U.S. at 523. 553 485 U.S. at 524 n.14. 554See also Article I, § 9, cl. 4. 555LaBelle Iron Works v. United States, 256 U.S. 377 (1921); Brushaber v. 

Union Pacific R.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 U.S. 580 (1884). 556 462 U.S. 74 (1983). 557 462 U.S. at 85. 

Helvering v. Gerhardt—that the burden of the tax was borne by 

private persons—and did not consider whether the function was 

one which the Federal Government might have taxed if the municipality had borne the burden of the exaction. 550

Articulation of the current approach may be found in South

Carolina v. Baker. 551 The rules are ‘‘essentially the same’’ for federal immunity from state taxation and for state immunity from federal taxation, except that some state activities may be subject to 

direct federal taxation, while States may ‘‘never’’ tax the United 

States directly. Either government may tax private parties doing 

business with the other government, ‘‘even though the financial 

burden falls on the [other government], as long as the tax does not 

discriminate against the [other government] or those with which it 

deals.’’ 552 Thus, ‘‘the issue whether a nondiscriminatory federal tax 

might nonetheless violate state tax immunity does not even arise 

unless the Federal Government seeks to collect the tax directly 

from a State.’’ 553

Uniformity Requirement.—Whether a tax is to be apportioned among the States according to the census taken pursuant to 

Article I, § 2, or imposed uniformly throughout the United States 

depends upon its classification as direct or indirect. 554 The rule of 

uniformity for indirect taxes is easy to obey. It requires only that 

the subject matter of a levy be taxed at the same rate wherever 

found in the United States; or, as it is sometimes phrased, the uniformity required is ‘‘geographical,’’ not ‘‘intrinsic.’’ 555 Even the geographical limitation is a loose one, at least if United States v. 

Ptasynski 556 is followed. There, the Court upheld an exemption 

from a crude-oil windfall-profits tax of ‘‘Alaskan oil,’’ defined geographically to include oil produced in Alaska (or elsewhere) north 

of the Arctic Circle. What is prohibited, the Court said, is favoritism to particular States in the absence of valid bases of classification. Because Congress could have achieved the same result, allowing for severe climactic difficulties, through a classification tailored 

to the ‘‘disproportionate costs and difficulties . . . associated with extracting oil from this region,’’ 557 the fact that Congress described 

the exemption in geographic terms did not condemn the provision. 

158 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

558Knowlton v. Moore, 178 U.S. 41 (1900). 559Fernandez v. Wiener, 326 U.S. 340 (1945); Riggs v. Del Drago, 317 U.S. 95 

(1942); Phillips v. Commissioner, 283 U.S. 589 (1931); Poe v. Seaborn, 282 U.S. 101, 

117 (1930). 560Florida v. Mellon, 273 U.S. 12 (1927). 561Downes v. Bidwell, 182 U.S. 244 (1901). 562 194 U.S. 486 (1904). The Court recognized that Alaska was an incorporated 

territory but took the position that the situation in substance was the same as if 

the taxes had been directly imposed by a territorial legislature for the support of 

the local government. 563License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). 564 United States v. Kahriger, 345 U.S. 22 (1953). Dissenting, Justice Frankfurter maintained that this was not a bona fide tax, but was essentially an effort 

to check, if not stamp out, professional gambling, an activity left to the responsibility of the States. Justices Jackson and Douglas noted partial agreement with this 

conclusion. See also Lewis v. United States, 348 U.S. 419 (1955). 565 United States v. Yuginovich, 256 U.S. 450 (1921). 566 United States v. Constantine, 296 U.S. 287, 293 (1935). 

The clause accordingly places no obstacle in the way of legislative classification for the purpose of taxation, nor in the way of 

what is called progressive taxation. 558 A taxing statute does not 

fail of the prescribed uniformity because its operation and incidence may be affected by differences in state laws. 559 A federal estate tax law which permitted deduction for a like tax paid to a 

State was not rendered invalid by the fact that one State levied no 

such tax. 560 The term ‘‘United States’’ in this clause refers only to 

the States of the Union, the District of Columbia, and incorporated 

territories. Congress is not bound by the rule of uniformity in framing tax measures for unincorporated territories. 561 Indeed, in Binns

v. United States, 562 the Court sustained license taxes imposed by 

Congress but applicable only in Alaska, where the proceeds, although paid into the general fund of the Treasury, did not in fact 

equal the total cost of maintaining the territorial government. 

PURPOSES OF TAXATION 

Regulation by Taxation 

The discretion of Congress in selecting the objectives of taxation has also been held at times to be subject to limitations implied from the nature of the Federal System. Apart from matters 

that Congress is authorized to regulate, the national taxing power, 

it has been said, ‘‘reaches only existing subjects.’’ 563 Congress may 

tax any activity actually carried on, such as the business of accepting wagers, 564 regardless of whether it is permitted or prohibited 

by the laws of the United States 565 or by those of a State. 566 But

so-called federal ‘‘licenses,’’ so far as they relate to trade within 

state limits, merely express, ‘‘the purpose of the government not to 

interfere . . . with the trade nominally licensed, if the required taxes 

are paid.’’ Whether the ‘‘licensed’’ trade shall be permitted at all is 

ART. I—LEGISLATIVE DEPARTMENT 159

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

567License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). 568Felsenheld v. United States, 186 U.S. 126 (1902). 569 In re Kollock, 165 U.S. 526 (1897). 570 United States v. Doremus, 249 U.S. 86 (1919). Cf. Nigro v. United States, 

276 U.S. 332 (1928). 571Sonzinsky v. United States, 300 U.S. 506 (1937). 572Without casting doubt on the ability of Congress to regulate or punish 

through its taxing power, the Court has overruled Kahriger, Lewis, Doremus,

Sonzinsky, and similar cases on the ground that the statutory scheme compelled 

self-incrimination through registration. Marchetti v. United States, 390 U.S. 39 

(1968); Grosso v. United States, 390 U.S. 62 (1968); Haynes v. United States, 390 

U.S. 85 (1968); Leary v. United States, 395 U.S. 6 (1969). 573McCray v. United States, 195 U.S. 27 (1904). 

a question for decision by the State. 567 This, nevertheless, does not 

signify that Congress may not often regulate to some extent a business within a State in order to tax it more effectively. Under the 

necessary-and-proper clause, Congress may do this very thing. Not 

only has the Court sustained regulations concerning the packaging 

of taxed articles such as tobacco 568 and oleomargarine, 569 ostensibly designed to prevent fraud in the collection of the tax, it has 

also upheld measures taxing drugs 570 and firearms, 571 which prescribed rigorous restrictions under which such articles could be sold 

or transferred, and imposed heavy penalties upon persons dealing 

with them in any other way. These regulations were sustained as 

conducive to the efficient collection of the tax though they clearly 

transcended in some respects this ground of justification. 572

Extermination by Taxation 

A problem of a different order is presented where the tax itself 

has the effect of suppressing an activity or where it is coupled with 

regulations that clearly have no possible relation to the collection 

of the tax. Where a tax is imposed unconditionally, so that no other 

purpose appears on the face of the statute, the Court has refused 

to inquire into the motives of the lawmakers and has sustained the 

tax despite its prohibitive proportions. 573 ‘‘It is beyond serious 

question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. . . . 

The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary. . . . Nor does a tax statute necessarily fall because it touches 

on activities which Congress might not otherwise regulate. As was 

pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934): 

‘From the beginning of our government, the courts have sustained 

taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional 

160 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

574 United States v. Sanchez, 340 U.S. 42, 44 (1950). See also Sonzinsky v. 

United States, 300 U.S. 506, 513–514 (1937). 575Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 383 (1940). See

also Head Money Cases, 112 U.S. 580, 596 (1884). 

576 Child Labor Tax Case (Bailey v. Drexel Furniture Co.), 259 U.S. 20 (1922); 

Hill v. Wallace, 259 U.S. 44 (1922); Helwig v. United States, 188 U.S. 605 (1903). 577 296 U.S. 287 (1935). 578 1 Stat. 24 (1789). 579 276 U.S. 394 (1928). 

power of the lawmakers to realize by legislation directly addressed 

to their accomplishments.’’’ 574

But where the tax is conditional, and may be avoided by compliance with regulations set out in the statute, the validity of the 

measure is determined by the power of Congress to regulate the 

subject matter. If the regulations are within the competence of 

Congress, apart from its power to tax, the exaction is sustained as 

an appropriate sanction for making them effective; 575 otherwise it 

is invalid. 576 During the Prohibition Era, Congress levied a heavy 

tax upon liquor dealers who operated in violation of state law. In 

United States v. Constantine, 577 the Court held that this tax was 

unenforceable after the repeal of the Eighteenth Amendment, since 

the National Government had no power to impose an additional 

penalty for infractions of state law. 

Promotion of Business: Protective Tariff 

The earliest examples of taxes levied with a view to promoting 

desired economic objectives in addition to raising revenue were, of 

course, import duties. The second statute adopted by the first Congress was a tariff act reciting that ‘‘it is necessary for the support 

of government, for the discharge of the debts of the United States, 

and the encouragement and protection of manufactures, that duties 

be laid on goods, wares and merchandise imported.’’ 578 After being 

debated for nearly a century and a half, the constitutionality of 

protective tariffs was finally settled by the unanimous decision of 

the Supreme Court in J. W. Hampton & Co. v. United States, 579

where Chief Justice Taft wrote: ‘‘The second objection to §315 is 

that the declared plan of Congress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country’s industries by the importation of goods from other countries at too low 

a rate to equalize foreign and domestic competition in the markets 

of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that 

ART. I—LEGISLATIVE DEPARTMENT 161

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

580 276 U.S. at 411–12. 581 3 WRITINGS OF THOMAS JEFFERSON 147–149 (Library Edition, 1904). 582See W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE

UNITED STATES (1953).

it is unconstitutional to frame the customs duties with any other 

view than that of revenue raising.’’ 

The Chief Justice then observed that the first Congress in 1789 

had enacted a protective tariff. ‘‘In this first Congress sat many 

members of the Constitutional Convention of 1787. This Court has 

repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, long acquiesced in, fixes the construction 

to be given its provisions. . . . The enactment and enforcement of a 

number of customs revenue laws drawn with a motive of maintaining a system of protection, since the revenue law of 1789, are matters of history. . . . Whatever we may think of the wisdom of a protection policy, we cannot hold it unconstitutional. So long as the 

motive of Congress and the effect of its legislative action are to secure revenue for the benefit of the general government, the existence of other motives in the selection of the subject of taxes cannot 

invalidate Congressional action.’’ 580

SPENDING FOR THE GENERAL WELFARE 

Scope of the Power 

The grant of power to ‘‘provide ... for the general welfare’’ 

raises a two-fold question: how may Congress provide for ‘‘the general welfare’’ and what is ‘‘the general welfare’’ that it is authorized 

to promote? The first half of this question was answered by Thomas Jefferson in his opinion on the Bank as follows: ‘‘[T]he laying of 

taxes is the power, and the general welfare the purpose for which 

the power is to be exercised. They [Congress] are not to lay taxes 

ad libitum for any purpose they please; but only to pay the debts 

or provide for the welfare of the Union. In like manner, they are 

not to do anything they please to provide for the general welfare, 

but only to lay taxes for that purpose.’’ 581 The clause, in short, is 

not an independent grant of power, but a qualification of the taxing 

power. Although a broader view has been occasionally asserted, 582

Congress has not acted upon it and the Court has had no occasion 

to adjudicate the point. 

With respect to the meaning of ‘‘the general welfare’’ the pages 

of The Federalist itself disclose a sharp divergence of views between its two principal authors. Hamilton adopted the literal, 

162 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

583THE FEDERALIST, Nos. 30 and 34 (J. Cooke ed. 1961) 187–193, 209–215. 584 Id. at No. 41, 268–78. 585 1 Stat. 229 (1792). 586 2 Stat. 357 (1806). 587 In an advisory opinion, which it rendered for President Monroe at his request 

on the power of Congress to appropriate funds for public improvements, the Court 

answered that such appropriations might be properly made under the war and postal powers. See Albertsworth, Advisory Functions in the Supreme Court, 23 GEO. L. 

J. 643, 644–647 (1935). Monroe himself ultimately adopted the broadest view of the 

spending power, from which, however, he carefully excluded any element of regulatory or police power. See his Views of the President of the United States on the 

Subject of Internal Improvements, of May 4, 1822, 2 MESSAGES AND PAPERS OF THE

PRESIDENTS 713–752 (Richardson ed., 1906). 588 California v. Pacific R.R., 127 U.S. 1 (188). 589 255 U.S. 180 (1921). 590 262 U.S. 447 (1923). See also Alabama Power Co. v. Ickes, 302 U.S. 464 

(1938). These cases were limited by Flast v. Cohen, 392 U.S. 83 (1968). 591 160 U.S. 668 (1896). 592 160 U.S. at 681. 

broad meaning of the clause; 583 Madison contended that the powers of taxation and appropriation of the proposed government 

should be regarded as merely instrumental to its remaining powers, in other words, as little more than a power of self-support. 584

From an early date Congress has acted upon the interpretation espoused by Hamilton. Appropriations for subsidies 585 and for an 

ever increasing variety of ‘‘internal improvements’’ 586 constructed

by the Federal Government, had their beginnings in the administrations of Washington and Jefferson. 587 Since 1914, federal 

grants-in-aid, sums of money apportioned among the States for 

particular uses, often conditioned upon the duplication of the sums 

by the recipient State, and upon observance of stipulated restrictions as to its use, have become commonplace. 

The scope of the national spending power was brought before 

the Supreme Court at least five times prior to 1936, but the Court 

disposed of four of the suits without construing the ‘‘general welfare’’ clause. In the Pacific Railway Cases 588 and Smith v. Kansas 

City Title Co., 589 it affirmed the power of Congress to construct internal improvements, and to charter and purchase the capital stock 

of federal land banks, by reference to its powers over commerce, 

post roads, and fiscal operations, and to its war powers. Decisions 

on the merits were withheld in two other cases, Massachusetts v. 

Mellon and Frothingham v. Mellon, 590 on the ground that neither 

a State nor an individual citizen is entitled to a remedy in the 

courts against an alleged unconstitutional appropriation of national 

funds. In United States v. Gettysburg Electric Railway, 591 however,

the Court had invoked ‘‘the great power of taxation to be exercised 

for the common defence and general welfare’’ 592 to sustain the 

ART. I—LEGISLATIVE DEPARTMENT 163

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

593 297 U.S. 1 (1936). See also Cleveland v. United States, 323 U.S. 329 (1945). 594 United States v. Butler, 297 U.S. 1, 65, 66 (1936). So settled had the issue 

become that 1970s attacks on federal grants-in-aid omitted any challenge on the 

broad level and relied on specific prohibitions, i.e., the religion clauses of the First 

Amendment. Flast v. Cohen, 392 U.S. 83 (1968); Tilton v. Richardson, 403 U.S. 672 

(1971). 595 Id. at 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)). 

right of the Federal Government to acquire land within a State for 

use as a national park. 

Finally, in United States v. Butler, 593 the Court gave its unqualified endorsement to Hamilton’s views on the taxing power. 

Wrote Justice Roberts for the Court: ‘‘Since the foundation of the 

Nation sharp differences of opinion have persisted as to the true 

interpretation of the phrase. Madison asserted it amounted to no 

more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is 

a government of limited and enumerated powers, the grant of 

power to tax and spend for the general national welfare must be 

confined to the numerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and 

appropriation are or may be necessary incidents of the exercise of 

any of the enumerated legislative powers. Hamilton, on the other 

hand, maintained the clause confers a power separate and distinct 

from those later enumerated, is not restricted in meaning by the 

grant of them, and Congress consequently has a substantive power 

to tax and to appropriate, limited only by the requirement that it 

shall be exercised to provide for the general welfare of the United 

States. Each contention has had the support of those whose views 

are entitled to weight. This court had noticed the question, but has 

never found it necessary to decide which is the true construction. 

Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these 

leads us to conclude that the reading advocated by Justice Story is 

the correct one. While, therefore, the power to tax is not unlimited, 

its confines are set in the clause which confers it, and not in those 

of § 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.’’ 594

By and large, it is for Congress to determine what constitutes 

the ‘‘general welfare.’’ The Court accords great deference to 

Congress’s decision that a spending program advances the general 

welfare, 595 and has even questioned whether the restriction is judiVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00101 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
164 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

596 Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); South Dakota v. Dole, 483 U.S. 

203, 207 n.2 (1987). 597 Justice Stone, speaking for himself and two other Justices, dissented on the 

ground that Congress was entitled when spending the national revenues for the 

‘‘general welfare’’ to see to it that the country got its money’s worth thereof, and 

that the condemned provisions were ‘‘necessary and proper’’ to that end. United 

States v. Butler, 297 U.S. 1, 84–86 (1936). 598 301 U.S. 548 (1937). 599 301 U.S. at 591. 600 301 U.S. at 590. See also Buckley v. Valeo, 424 U.S. 1, 90–92 (1976); 

Fullilove v. Klutznick, 448 U.S. 448, 473–475 (1980); Pennhurst State School & 

Hosp. v. Halderman, 451 U.S. 1 (1981). 601 In the Steward Machine Company case, it was a taxpayer who complained 

of the invasion of state sovereignty, and the Court put great emphasis on the fact 

that the State was a willing partner in the plan of cooperation embodied in the Social Security Act. 301 U.S. 548, 589, 590 (1937). 

cially enforceable. 596 Dispute, such as it is, turns on the conditioning of funds. 

Social Security Act Cases.—Although holding that the 

spending power is not limited by the specific grants of power contained in Article I, § 8, the Court found, nevertheless, that it was 

qualified by the Tenth Amendment, and on this ground ruled in 

the Butler case that Congress could not use moneys raised by taxation to ‘‘purchase compliance’’ with regulations ‘‘of matters of 

State concern with respect to which Congress has no authority to 

interfere.’’ 597 Within little more than a year this decision was reduced to narrow proportions by Steward Machine Co. v. Davis, 598

which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to 

a State. To the argument that the tax and credit in combination 

were ‘‘weapons of coercion, destroying or impairing the autonomy 

of the States,’’ the Court replied that relief of unemployment was 

a legitimate object of federal expenditure under the ‘‘general welfare’’ clause, that the Social Security Act represented a legitimate 

attempt to solve the problem by the cooperation of State and Federal Governments, that the credit allowed for state taxes bore a 

reasonable relation ‘‘to the fiscal need subserved by the tax in its 

normal operation,’’ 599 since state unemployment compensation payments would relieve the burden for direct relief borne by the national treasury. The Court reserved judgment as to the validity of 

a tax ‘‘if it is laid upon the condition that a State may escape its 

operation through the adoption of a statute unrelated in subject 

matter to activities fairly within the scope of national policy and 

power.’’ 600

Conditional Grants-in-Aid.—It was not until 1947 that the 

right of Congress to impose conditions upon grants-in-aid over the 

objection of a State was squarely presented. 601 The Court upheld 

ART. I—LEGISLATIVE DEPARTMENT 165

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

602 330 U.S. 127 (1947). 603 330 U.S. 127, 143 (1947). 604Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief Justice Burger announcing judgment of the Court). The Chief Justice cited five cases to document the 

assertion: California Bankers Ass’n v. Shultz, 416 U.S. 21 (1974); Lau v. Nichols, 

414 U.S. 563 (1974); Oklahoma v. Civil Service Comm’n, 330 U.S. 127 (1947); 

Helvering v. Davis, 301 U.S. 619 (1937); and Steward Machine Co. v. Davis, 301 

U.S. 548 (1937). 605See South Dakota v. Dole, 483 U.S. 203, 207–12 (1987). 606 483 U.S. at 207 (1987). See discussion under Scope of the Power, supra. 607 Barnes v. Gorman, 122 S. Ct. 2097, 2100 (2002) (holding that neither the 

Americans With Disabilities Act of 1990 nor section 504 of the Rehabilitation Act 

of 1973 subjected states to punitive damages in private actions). 

Congress’s power to do so in Oklahoma v. Civil Service Commission. 602 The State objected to the enforcement of a provision of the 

Hatch Act that reduced its allotment of federal highway funds because of its failure to remove from office a member of the State 

Highway Commission found to have taken an active part in party 

politics while in office. The Court denied relief on the ground that, 

‘‘[w]hile the United States is not concerned with, and has no power 

to regulate local political activities as such of State officials, it does 

have power to fix the terms upon which its money allotments to 

states shall be disbursed. . . . The end sought by Congress through 

the Hatch Act is better public service by requiring those who administer funds for national needs to abstain from active political 

partisanship. So even though the action taken by Congress does 

have effect upon certain activities within the State, it has never 

been thought that such effect made the federal act invalid.’’ 603

The general principle is firmly established. ‘‘Congress has frequently employed the Spending Power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by 

the recipient with federal statutory and administrative directives. 

This Court has repeatedly upheld against constitutional challenge 

the use of this technique to induce governments and private parties 

to cooperate voluntarily with federal policy.’’ 604

The Court has set forth several standards purporting to channel Congress’s discretion in attaching grant conditions. 605 To date 

no statutes have been struck down as violating these standards, although several statutes have been interpreted so as to conform to 

the guiding principles. First, the conditions, like the spending 

itself, must advance the general welfare, but the determination of 

what constitutes the general welfare rests largely if not wholly 

with Congress. 606 Second, because a grant is ‘‘much in the nature 

of a contract’’ offer that the States may accept or reject, 607 Congress must set out the conditions unambiguously, so that the 

166 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

608South Dakota v. Dole, 483 U.S. at 207 (1987). The requirement appeared in 

Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). See also 

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 246-47 (1985) (Rehabilitation Act 

does not clearly signal states that participation in programs funded by Act constitutes waiver of immunity from suit in federal court); Gonzaga Univ. v. Doe, 122 

S. Ct. 2268 (2002) (no private right of action was created by the Family Educational 

Rights and Privacy Act). 609South Dakota v. Dole, 483 U.S. 203, 207–208 (1987). See Steward Machine 

Co. v. Davis, 301 U.S. 548, 590 (1937); Ivanhoe Irrigation Dist. v. McCracken, 357 

U.S. 275, 295 (1958). 610The relationship in South Dakota v. Dole, 483 U.S. 203, 208–09 (1987), in 

which Congress conditioned access to certain highway funds on establishing a 21– 

years-of-age drinking qualification was that the purpose of both funds and condition 

was safe interstate travel. The federal interest in Oklahoma v. Civil Service 

Comm’n, 330 U.S. 127, 143 (1947), as we have noted, was assuring proper administration of federal highway funds. 611South Dakota v. Dole, 483 U.S. 203, 210–11 (1987). 612Steward Machine Co. v. Davis, 301 U.S. 548, 589–590 (1937); South Dakota 

v. Dole, 483 U.S. 203, 211–212 (1987). 613See North Carolina ex rel. Morrow v. Califano, 445 F. Supp. 532 (E.D.N.C. 

1977) (three-judge court), aff’d 435 U.S. 962 (1978). 614South Dakota v. Dole, 483 U.S. 203, 210 (1987) (referring to the Tenth 

Amendment: ‘‘the ‘independent constitutional bar’ limitation on the spending power 

is not . . . a prohibition on the indirect achievement of objectives which Congress is 

not empowered to achieve directly’’). 615 Bell v. New Jersey, 461 U.S. 773 (1983); Bennett v. New Jersey, 470 U.S. 

632 (1985); Bennett v. Kentucky Dep’t of Education, 470 U.S. 656 (1985). 616 E.g., King v. Smith, 392 U.S. 309 (1968); Rosado v. Wyman, 397 U.S. 397 

(1970); Lau v. Nichols, 414 U.S. 563 (1974); Miller v. Youakim, 440 U.S. 125 (1979). 

Suits may be brought under 42 U.S.C. § 1983, see Maine v. Thiboutot, 448 U.S. 1 

(1980), although in some instances the statutory conferral of rights may be too imprecise or vague for judicial enforcement. Compare Suter v. Artist M., 503 U.S. 347 

States may make an informed decision. 608 Third, the Court continues to state that the conditions must be related to the federal 

interest for which the funds are expended, 609 but it has never 

found a spending condition deficient under this part of the test. 610

Fourth, the power to condition funds may not be used to induce the 

States to engage in activities that would themselves be unconstitutional. 611 Fifth, the Court has suggested that in some circumstances the financial inducement offered by Congress might be 

so coercive as to pass the point at which ‘‘pressure turns into compulsion,’’ 612 but again the Court has never found a congressional 

condition to be coercive in this sense. 613 Certain federalism restraints on other federal powers seem not to be relevant to spending conditions. 614

If a State accepts federal funds on conditions and then fails to 

follow the requirements, the usual remedy is federal administrative 

action to terminate the funding and to recoup funds the State has 

already received. 615 While the Court has allowed beneficiaries of 

conditional grant programs to sue to compel states to comply with 

the federal conditions, 616 more recently the Court has required that 

ART. I—LEGISLATIVE DEPARTMENT 167

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend 

(1992), with Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418 

(1987). 617 E.g., Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; Title IX of 

the Educational Amendments of 1972, 20 U.S.C. § 1681; Title V of the Rehabilitation Act of 1973, 29 U.S.C. § 794. 618 Here the principal constraint is the Eleventh Amendment. See, e.g., Board 

of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (Americans with Disabilities Act of 1990 exceeds congressional power to enforce the Fourteenth Amendment, 

and violates the Eleventh Amendment, by subjecting states to suits brought by state 

employees in federal courts to collect money damages). 619 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). 620 301 U.S. 619 (1937). 621 United States v. Realty Co., 163 U.S. 427 (1896); Pope v. United States, 323 

U.S. 1, 9 (1944). 622 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937). 623 6 U.S. (2 Cr.) 358 (1805). 

any such susceptibility to suit be clearly spelled out so that states 

will be informed of potential consequences of accepting aid. Finally, 

it should be noted that Congress has enacted a range of laws forbidding discrimination in federal assistance programs, 617 and some 

of these laws are enforceable against the states. 618

Earmarked Funds.—The appropriation of the proceeds of a 

tax to a specific use does not affect the validity of the exaction, if 

the general welfare is advanced and no other constitutional provision is violated. Thus a processing tax on coconut oil was sustained 

despite the fact that the tax collected upon oil of Philippine production was segregated and paid into the Philippine Treasury. 619 In

Helvering v. Davis, 620 the excise tax on employers, the proceeds of 

which were not earmarked in any way, although intended to provide funds for payments to retired workers, was upheld under the 

‘‘general welfare’’ clause, the Tenth Amendment being found to be 

inapplicable.

Debts of the United States.—The power to pay the debts of 

the United States is broad enough to include claims of citizens arising on obligations of right and justice. 621 The Court sustained an 

act of Congress which set apart for the use of the Philippine Islands, the revenue from a processing tax on coconut oil of Philippine production, as being in pursuance of a moral obligation to 

protect and promote the welfare of the people of the Islands. 622 Curiously enough, this power was first invoked to assist the United 

States to collect a debt due to it. In United States v. Fisher, 623 the

Supreme Court sustained a statute which gave the Federal Government priority in the distribution of the estates of its insolvent debtors. The debtor in that case was the endorser of a foreign bill of 

exchange that apparently had been purchased by the United 

States. Invoking the ‘‘necessary and proper’’ clause, Chief Justice 

Marshall deduced the power to collect a debt from the power to pay 

168 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

624 6 U.S. at 396. 625 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 144, 

308–309 (rev. ed. 1937). 626 Id. at 310. 627Knox v. Lee (Legal Tender Cases), 79 U.S. (12 Wall.) 457 (1871), overruling 

Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870). 628Perry v. United States, 294 U.S. 330, 351 (1935). See also Lynch v. United 

States, 292 U.S. 571 (1934). 

its obligations by the following reasoning: ‘‘The government is to 

pay the debt of the Union, and must be authorized to use the 

means which appear to itself most eligible to effect that object. It 

has, consequently, a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe.’’ 624

Clause 2. The Congress shall have Power *** To borrow 

Money on the credit of the United States. 

BORROWING POWER 

The original draft of the Constitution reported to the convention by its Committee of Detail empowered Congress ‘‘To borrow 

money and emit bills on the credit of the United States.’’ 625 When

this section was reached in the debates, Gouverneur Morris moved 

to strike out the clause ‘‘and emit bills on the credit of the United 

States.’’ Madison suggested that it might be sufficient ‘‘to prohibit 

the making them a tender.’’ After a spirited exchange of views on 

the subject of paper money, the convention voted, nine States to 

two, to delete the words ‘‘and emit bills.’’ 626 Nevertheless, in 1870, 

the Court relied in part upon this clause in holding that Congress 

had authority to issue treasury notes and to make them legal tender in satisfaction of antecedent debts. 627

When it borrows money ‘‘on the credit of the United States,’’ 

Congress creates a binding obligation to pay the debt as stipulated 

and cannot thereafter vary the terms of its agreement. A law purporting to abrogate a clause in government bonds calling for payment in gold coin was held to contravene this clause, although the 

creditor was denied a remedy in the absence of a showing of actual 

damage. 628

Clause 3. The Congress shall have Power *** To regulate 

Commerce with foreign Nations, and among the several States, 

and with the Indian Tribes. 

ART. I—LEGISLATIVE DEPARTMENT 169

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

629 E. PRENTICE & J. EGAN, THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION 14 (1898). 

630That is, ‘‘cum merce (with merchandise).’’ 631 22 U.S. (9 Wheat.) 1 (1824). 632 Act of February 18, 1793, 1 Stat. 305, entitled ‘‘An Act for enrolling and licensing ships or vessels to be employed in the coasting trade and fisheries, and for 

regulating the same.’’ 

POWER TO REGULATE COMMERCE 

Purposes Served by the Grant 

This clause serves a two-fold purpose: it is the direct source of 

the most important powers that the Federal Government exercises 

in peacetime, and, except for the due process and equal protection 

clauses of the Fourteenth Amendment, it is the most important 

limitation imposed by the Constitution on the exercise of state 

power. The latter, restrictive operation of the clause was long the 

more important one from the point of view of the constitutional 

lawyer. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation. 629 The result was that, 

generally, the guiding lines in construction of the clause were initially laid down in the context of curbing state power rather than 

in that of its operation as a source of national power. The consequence of this historical progression was that the word ‘‘commerce’’ came to dominate the clause while the word ‘‘regulate’’ remained in the background. The so-called ‘‘constitutional revolution’’ 

of the 1930s, however, brought the latter word to its present prominence.

Definition of Terms 

Commerce.—The etymology of the word ‘‘commerce’’ 630 carries

the primary meaning of traffic, of transporting goods across state 

lines for sale. This possibly narrow constitutional conception was 

rejected by Chief Justice Marshall in Gibbons v. Ogden, 631 which

remains one of the seminal cases dealing with the Constitution. 

The case arose because of a monopoly granted by the New York 

legislature on the operation of steam-propelled vessels on its waters, a monopoly challenged by Gibbons, who transported passengers from New Jersey to New York pursuant to privileges 

granted by an act of Congress. 632 The New York monopoly was not 

in conflict with the congressional regulation of commerce, argued 

the monopolists, because the vessels carried only passengers between the two States and were thus not engaged in traffic, in ‘‘commerce’’ in the constitutional sense. 

170 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

633Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824). 634 22 U.S. at 190–94. 635 22 U.S. at 193. 636 As we will see, however, in many later formulations the crossing of state 

lines is no longer the sine qua non; wholly intrastate transactions with substantial 

effects on interstate commerce may suffice. 637 E.g., United States v. Simpson, 252 U.S. 465 (1920); Caminetti v. United 

States, 242 U.S. 470 (1917). 638 ‘‘Not only, then, may transactions be commerce though non-commercial; they 

may be commerce though illegal and sporadic, and though they do not utilize common carriers or concern the flow of anything more tangible than electrons and information.’’ United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 549–550 

(1944). 639Kidd v. Pearson, 128 U.S. 1 (1888); Oliver Iron Co. v. Lord, 262 U.S. 172 

(1923); United States v. E. C. Knight Co., 156 U.S. 1 (1895); and see Carter v. 

Carter Coal Co., 298 U.S. 238 (1936). 

‘‘The subject to be regulated is commerce,’’ the Chief Justice 

wrote. ‘‘The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not 

admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. 

Commerce, undoubtedly, is traffic, but it is something more—it is 

intercourse.’’ 633 The term, therefore, included navigation, a conclusion that Marshall also supported by appeal to general understanding, to the prohibition in Article I, § 9, against any preference 

being given ‘‘by any regulation of commerce or revenue, to the ports 

of one State over those of another,’’ and to the admitted and demonstrated power of Congress to impose embargoes. 634

Marshall qualified the word ‘‘intercourse’’ with the word ‘‘commercial,’’ thus retaining the element of monetary transactions. 635

But, today, ‘‘commerce’’ in the constitutional sense, and hence 

‘‘interstate commerce,’’ covers every species of movement of persons 

and things, whether for profit or not, across state lines, 636 every

species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise, 637 every

species of commercial negotiation which will involve sooner or later 

an act of transportation of persons or things, or the flow of services 

or power, across state lines. 638

There was a long period in the Court’s history when a majority 

of the Justices, seeking to curb the regulatory powers of the Federal Government by various means, held that certain things were 

not encompassed by the commerce clause because they were either 

not interstate commerce or bore no sufficient nexus to interstate 

commerce. Thus, at one time, the Court held that mining or manufacturing, even when the product would move in interstate commerce, was not reachable under the commerce clause; 639 it held inVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00108 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 171

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

640Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869); and see the cases to this effect 

cited in United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 543–545, 

567–568, 578 (1944). 641Federal Baseball League v. National League of Professional Baseball Clubs, 

259 U.S. 200 (1922). When called on to reconsider its decision, the Court declined, 

noting that Congress had not seen fit to bring the business under the antitrust laws 

by legislation having prospective effect and that the business had developed under 

the understanding that it was not subject to these laws, a reversal of which would 

have retroactive effect. Toolson v. New York Yankees, 346 U.S. 356 (1953). In Flood 

v. Kuhn, 407 U.S. 258 (1972), the Court recognized these decisions as aberrations, 

but it thought the doctrine entitled to the benefits of stare decisis inasmuch as Congress was free to change it at any time. The same considerations not being present, 

the Court has held that businesses conducted on a multistate basis but built around 

local exhibitions, are in commerce and subject to, inter alia, the antitrust laws, in 

the instance of professional football, Radovich v. National Football League, 352 U.S. 

445 (1957), professional boxing, United States v. International Boxing Club, 348 

U.S. 236 (1955), and legitimate theatrical productions. United States v. Shubert, 

348 U.S. 222 (1955). 642 Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436 (1920). 643Williams v. Fears, 179 U.S. 270 (1900). See also Diamond Glue Co. v. United 

States Glue Co., 187 U.S. 611 (1903); Browning v. City of Waycross, 233 U.S. 16 

(1914); General Railway Signal Co. v. Virginia, 246 U.S. 500 (1918). But see York

Manufacturing Co. v. Colley, 247 U.S. 21 (1918). 644 Associated Press v. United States, 326 U.S. 1 (1945). 645 American Medical Ass’n v. United States, 317 U.S. 519 (1943). Cf. United

States v. Oregon Medical Society, 343 U.S. 326 (1952). 646 United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944). 647 ‘‘It has been truly said, that commerce, as the word is used in the constitution, is a unit, every part of which is indicated by the term.’’ Gibbons v. Ogden, 22 

U.S. (9 Wheat.) 1, 194 (1824). And see id. at 195–196. 648 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 649Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). And see Hodel

v. Virginia Surface Mining & Reclamation Ass’n, 452 U. S. 264, 275–283 (1981). See

also Mulford v. Smith, 307 U.S. 38 (1939) (agricultural production). 

650Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258 

U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923). 

surance transactions carried on across state lines not commerce, 640

and that exhibitions of baseball between professional teams that 

travel from State to State were not in commerce, 641 and that similarly the commerce clause was not applicable to the making of contracts for the insertion of advertisements in periodicals in another 

State 642 or to the making of contracts for personal services to be 

rendered in another State. 643 Later decisions either have overturned or have undermined all of these holdings. The gathering of 

news by a press association and its transmission to client newspapers are interstate commerce. 644 The activities of a Group 

Health Association, which serves only its own members, are ‘‘trade’’ 

and capable of becoming interstate commerce; 645 the business of insurance when transacted between an insurer and an insured in different States is interstate commerce. 646 But most important of all 

there was the development of, or more accurately the return to, 647

the rationales by which manufacturing, 648 mining, 649 business

transactions, 650 and the like, which are antecedent to or subseVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00109 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
172 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

651 22 U.S. (9 Wheat.) 1, 194, 195 (1824). 652 New York v. Miln, 36 U.S. (11 Pet.) 102 (1837); License Cases, 46 U.S. (5 

How.) 504 (1847); Passenger Cases, 48 U.S. (7 How.) 283 (1849); Patterson v. Kentucky, 97 U.S. 501 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd v. Pearson, 

128 U.S. 1 (1888); Illinois Central R.R. v. McKendree, 203 U.S. 514 (1906); Keller 

v. United States, 213 U.S. 138 (1909); Hammer v. Dagenhart, 247 U.S. 251 (1918); 

Oliver Iron Co. v. Lord, 262 U.S. 172 (1923). 653Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258 

U.S. 495 (1922); Chicago Board of Trade v. Olsen, 262 U.S. 1 (1923). 654 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 

quent to a move across state lines, are conceived to be part of an 

integrated commercial whole and therefore subject to the reach of 

the commerce power. 

Among the Several States.—Continuing in Gibbons v. 

Ogden, Chief Justice Marshall observed that the phrase ‘‘among 

the several States’’ was ‘‘not one which would probably have been 

selected to indicate the completely interior traffic of a state.’’ It 

must therefore have been selected to demark ‘‘the exclusively internal commerce of a state.’’ While, of course, the phrase ‘‘may very 

properly be restricted to that commerce which concerns more states 

than one,’’ it is obvious that ‘‘[c]ommerce among the states, cannot 

stop at the exterior boundary line of each state, but may be introduced into the interior.’’ The Chief Justice then succinctly stated 

the rule, which, though restricted in some periods, continues to 

govern the interpretation of the clause. ‘‘The genius and character 

of the whole government seem to be, that its action is to be applied 

to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are 

completely within a particular state, which do not affect other 

states, and with which it is not necessary to interfere, for the purpose of executing some of the general powers of the government.’’ 651

Recognition of an ‘‘exclusively internal’’ commerce of a State, or 

‘‘intrastate commerce’’ in today’s terms, was at times regarded as 

setting out an area of state concern that Congress was precluded 

from reaching. 652 While these cases seemingly visualized Congress’ 

power arising only when there was an actual crossing of state 

boundaries, this view ignored Marshall’s equation of ‘‘intrastate 

commerce’’ which ‘‘affect[s] other states’’ or ‘‘with which it is necessary to interfere’’ in order to effectuate congressional power with 

those actions which are ‘‘purely’’ interstate. This equation came 

back into its own, both with the Court’s stress on the ‘‘current of 

commerce’’ bringing each element in the current within Congress’ 

regulatory power, 653 with the emphasis on the interrelationships of 

industrial production to interstate commerce 654 but especially with 

the emphasis that even minor transactions have an effect on interVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00110 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 173

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

655 NLRB v. Fainblatt, 306 U.S. 601 (1939); Kirschbaum v. Walling, 316 U.S. 

517 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); Wickard 

v. Filburn, 317 U.S. 111 (1942); NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963); 

Katzenbach v. McClung, 379 U.S. 294 (1964); Maryland v. Wirtz, 392 U.S. 183 

(1968); McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232, 241–243 (1980); 

Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981). 656 United States v. Darby, 312 U.S. 100 (1941); Heart of Atlanta Motel v. 

United States, 379 U.S. 241 (1964); Maryland v. Wirtz, 392 U.S. 183 (1968); Perez 

v. United States, 402 U.S. 146 (1971); Russell v. United States, 471 U.S. 858 (1985); 

Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). 657Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). Commerce ‘‘among the 

several States’’ does not comprise commerce of the District of Columbia nor of the 

territories of the United States. Congress’ power over their commerce is an incident 

of its general power over them. Stoutenburgh v. Hennick, 129 U.S. 141 (1889); Atlantic Cleaners & Dyers v. United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. 

Cas. 514 (No. 2067) (D. Oreg. 1865). Transportation between two points in the same 

State, when a part of the route is a loop outside the State, is interstate commerce. 

Hanley v. Kansas City Southern Ry. Co., 187 U.S. 617 (1903); Western Union Tel. 

Co. v. Speight, 254 U.S. 17 (1920). But such a deviation cannot be solely for the 

purpose of evading a tax or regulation in order to be exempt from the State’s reach. 

Greyhound Lines v. Mealey, 334 U.S. 653, 660 (1948); Eichholz v. Public Service 

Comm’n, 306 U.S. 268, 274 (1939). Red cap services performed at a transfer point 

within the State of departure but in conjunction with an interstate trip are reachable. New York, N.H. & H. R.R. v. Nothnagle, 346 U.S. 128 (1953). 658Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196–197 (1824). 

state commerce 655 and that the cumulative effect of many minor 

transactions with no separate effect on interstate commerce, when 

they are viewed as a class, may be sufficient to merit congressional 

regulation. 656 ‘‘Commerce among the states must, of necessity, be 

commerce with[in] the states. . . . The power of congress, then, 

whatever it may be, must be exercised within the territorial jurisdiction of the several states.’’ 657

Regulate.—‘‘We are now arrived at the inquiry—’’ continued 

the Chief Justice, ‘‘What is this power? It is the power to regulate; 

that is, to prescribe the rule by which commerce is to be governed. 

This power, like all others vested in congress, is complete in itself, 

may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution . . . If, as has always been understood, the sovereignty of congress, though limited 

to specified objects, is plenary as to those objects, the power over 

commerce with foreign nations, and among the several states, is 

vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United 

States.’’ 658

Of course, the power to regulate commerce is the power to prescribe conditions and rules for the carrying-on of commercial transactions, the keeping-free of channels of commerce, the regulating of 

prices and terms of sale. Even if the clause granted only this 

174 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

659 Brooks v. United States, 267 U.S. 432, 436–437 (1925). 660 United States v. Darby, 312 U.S. 100, 114 (1941). 661 E.g., Caminetti v. United States, 242 U.S. 470 (1917) (transportation of female across state line for noncommercial sexual purposes); Cleveland v. United 

States, 329 U.S. 14 (1946) (transportation of plural wives across state lines by Mormons); United States v. Simpson, 252 U.S. 465 (1920) (transportation of five quarts 

of whiskey across state line for personal consumption). 662 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. 

McClung, 379 U.S. 294 (1964); Daniel v. Paul, 395 U.S. 298 (1969). 663 E.g., Reid v. Colorado, 187 U.S. 137 (1902) (transportation of diseased livestock across state line); Perez v. United States, 402 U.S. 146 (1971) (prohibition of 

all loansharking). 664Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824). 

power, the scope would be wide, but it extends to include many 

more purposes than these. ‘‘Congress can certainly regulate interstate commerce to the extent of forbidding and punishing the use 

of such commerce as an agency to promote immorality, dishonesty, 

or the spread of any evil or harm to the people of other states from 

the state of origin. In doing this, it is merely exercising the police 

power, for the benefit of the public, within the field of interstate 

commerce.’’ 659 Thus, in upholding a federal statute prohibiting the 

shipment in interstate commerce of goods made with child labor, 

not because the goods were intrinsically harmful but in order to extirpate child labor, the Court said: ‘‘It is no objection to the assertion of the power to regulate commerce that its exercise is attended 

by the same incidents which attend the exercise of the police power 

of the states.’’ 660

The power has been exercised to enforce majority conceptions 

of morality, 661 to ban racial discrimination in public accommodations, 662 and to protect the public against evils both natural and 

contrived by people. 663 The power to regulate interstate commerce 

is, therefore, rightly regarded as the most potent grant of authority 

in § 8. 

Necessary and Proper Clause.—All grants of power to Congress in § 8, as elsewhere, must be read in conjunction with the 

final clause, cl. 18, of § 8, which authorizes Congress ‘‘[t]o make all 

Laws which shall be necessary and proper for carrying into Execution the foregoing powers.’’ It will be recalled that Chief Justice 

Marshall alluded to the power thus enhanced by this clause when 

he said that the regulatory power did not extend ‘‘to those internal 

concerns [of a state] . . . with which it is not necessary to interfere, 

for the purpose of executing some of the general powers of the government.’’ 664 There are numerous cases permitting Congress to 

reach ‘‘purely’’ intrastate activities on the theory, combined with 

the previously mentioned emphasis on the cumulative effect of 

minor transactions, that it is necessary to regulate them in order 

ART. I—LEGISLATIVE DEPARTMENT 175

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

665 E.g., Houston & Texas Ry. v. United States, 234 U.S. 342 (1914) (necessary 

for ICC to regulate rates of an intrastate train in order to effectuate its rate setting 

for a competing interstate train); Wisconsin R.R. Comm’n v. Chicago, B. & Q. R.R., 

257 U.S. 563 (1922) (same); Southern Ry. v. United States, 222 U.S. 20 (1911) (upholding requirement of same safety equipment on intrastate as interstate trains). 

See also Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Wrightwood 

Dairy Co., 315 U.S. 110 (1942). 666 E.g., United States v. E. C. Knight Co., 156 U.S. 1 (1895); Hammer v. 

Dagenhart, 247 U.S. 251 (1918). Of course, there existed much of this time a parallel doctrine under which federal power was not so limited. E.g., Houston & Texas 

Ry. v. United States (The Shreveport Rate Case), 234 U.S. 342 (1914). 667 E.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor, 

353 U.S. 553 (1957). 668For example, federal regulation of the wages and hours of certain state and 

local governmental employees has alternatively been upheld and invalidated. See

Maryland v. Wirtz, 392 U.S. 183 (1968), overruled in National League of Cities v. 

Usery, 426 U.S. 833 (1976), overruled in Garcia v. San Antonio Metro. Transit 

Auth., 469 U.S. 528 (1985). 669 New York v. United States, 505 U.S. 144 (1992). See also Printz v. United 

States, 521 U.S. 898 (1997). For elaboration, see the discussions under the supremacy clause and under the Tenth Amendment. 670 250 U.S. 199 (1919). 

that the regulation of interstate activities might be fully effectuated. 665

Federalism Limits on Exercise of Commerce Power.—As is 

recounted below, prior to reconsideration of the federal commerce 

power in the 1930s, the Court in effect followed a doctrine of ‘‘dual 

federalism,’’ under which Congress’ power to regulate much activity 

depended on whether it had a ‘‘direct’’ rather than an ‘‘indirect’’ effect on interstate commerce. 666 When the restrictive interpretation 

was swept away during and after the New Deal, the question of 

federalism limits respecting congressional regulation of private activities became moot. However, the States did in a number of instances engage in commercial activities that would be regulated by 

federal legislation if the enterprise were privately owned; the Court 

easily sustained application of federal law to these state proprietary activities. 667 However, as Congress began to extend regulation to state governmental activities, the judicial response was inconsistent and wavering. 668 While the Court may shift again to 

constrain federal power on federalism grounds, at the present time 

the rule is that Congress lacks authority under the commerce 

clause to regulate the States as States in some circumstances, 

when the federal statutory provisions reach only the States and do 

not bring the States under laws of general applicability. 669

Illegal Commerce 

That Congress’ protective power over interstate commerce 

reaches all kinds of obstructions and impediments was made clear 

in United States v. Ferger. 670 The defendants had been indicted for 

176 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

671 250 U.S. at 203. 672 E.g., Hoke v. United States, 227 U.S. 308 (1913) (transportation of women 

for purposes of prostitution); Gooch v. United States, 297 U.S. 124 (1936) (kidnapping); Brooks v. United States, 267 U.S. 432 (1925) (stolen autos). For example, in 

Scarborough v. United States, 431 U.S. 563 (1977), the Court upheld a conviction 

for possession of a firearm by a felon upon a mere showing that the gun had sometime previously traveled in interstate commerce, and Barrett v. United States, 423 

U.S. 212 (1976), upheld a conviction for receipt of a firearm on the same showing. 

The Court does require Congress in these cases to speak plainly in order to reach 

such activity, inasmuch as historic state police powers are involved. United States 

v. Bass, 404 U.S. 336 (1971). 

issuing a false bill of lading to cover a fictitious shipment in interstate commerce. Before the Court they argued that inasmuch as 

there could be no commerce in a fraudulent bill of lading, Congress 

had no power to exercise criminal jurisdiction over them. Said 

Chief Justice White: ‘‘But this mistakenly assumes that the power 

of Congress is to be necessarily tested by the intrinsic existence of 

commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it. We say 

mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of Congress to 

regulate, as obviously that power, if it is to exist, must include the 

authority to deal with obstructions to interstate commerce . . . and 

with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, although they are not interstate commerce in and 

of themselves.’’ 671 Much of Congress’ criminal legislation is based 

simply on the crossing of a state line as creating federal jurisdiction. 672

Interstate Versus Foreign Commerce 

There are certain dicta urging or suggesting that Congress’ 

power to regulate interstate commerce restrictively is less than its 

analogous power over foreign commerce, the argument being that 

whereas the latter is a branch of the Nation’s unlimited power over 

foreign relations, the former was conferred upon the National Government primarily in order to protect freedom of commerce from 

state interference. The four dissenting Justices in the Lottery

Case endorsed this view in the following words: ‘‘The power to regulate commerce with foreign nations and the power to regulate 

interstate commerce, are to be taken diverso intuitu, for the latter 

was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse; while the former clothed Congress with 

that power over international commerce, pertaining to a sovereign 

nation in its intercourse with foreign nations, and subject, genVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00114 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 177

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

673Lottery Case (Champion v. Ames), 188 U.S. 321, 373–374 (1903). 674 Brolan v. United States, 236 U.S. 216, 222 (1915). The most recent dicta to 

this effect appears in Japan Line v. County of Los Angeles, 441 U.S. 434, 448–451 

(1979), a ‘‘dormant’’ commerce clause case involving state taxation with an impact 

on foreign commerce. In context, the distinction seems unexceptionable, but the language extends beyond context. 675License Cases, 46 U.S. (5 How.) 504, 578 (1847). 676Pittsburgh & Southern Coal Co. v. Bates, 156 U.S. 577, 587 (1895). 677 United States v. Carolene Products Co., 304 U.S. 144, 147–148 (1938). 678 22 U.S. (9 Wheat.) 1, 217, 221 (1824). 

erally speaking, to no implied or reserved power in the States. The 

laws which would be necessary and proper in the one case would 

not be necessary or proper in the other.’’ 673

And twelve years later Chief Justice White, speaking for the 

Court, expressed the same view, as follows: ‘‘In the argument reference is made to decisions of this court dealing with the subject 

of the power of Congress to regulate interstate commerce, but the 

very postulate upon which the authority of Congress to absolutely 

prohibit foreign importations as expounded by the decisions of this 

court rests is the broad distinction which exists between the two 

powers and therefore the cases cited and many more which might 

be cited announcing the principles which they uphold have obviously no relation to the question in hand.’’ 674

But dicta to the contrary are much more numerous and span 

a far longer period of time. Thus Chief Justice Taney wrote in 

1847: ‘‘The power to regulate commerce among the several States 

is granted to Congress in the same clause, and by the same words, 

as the power to regulate commerce with foreign nations, and is coextensive with it.’’ 675 And nearly fifty years later, Justice Field, 

speaking for the Court, said: ‘‘The power to regulate commerce 

among the several States was granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.’’ 676 Today it is firmly established doctrine that the power to 

regulate commerce, whether with foreign nations or among the several States, comprises the power to restrain or prohibit it at all 

times for the welfare of the public, provided only that the specific 

limitations imposed upon Congress’ powers, as by the due process 

clause of the Fifth Amendment, are not transgressed. 677

Instruments of Commerce 

The applicability of Congress’ power to the agents and instruments of commerce is implied in Marshall’s opinion in Gibbons v. 

Ogden, 678 where the waters of the State of New York in their quality as highways of interstate and foreign transportation were held 

to be governed by the overriding power of Congress. Likewise, the 

same opinion recognizes that in ‘‘the progress of things,’’ new and 

178 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

679 96 U.S. 1 (1878). See also Western Union Telegraph Co. v. Texas, 105 U.S. 

460 (1882). 

680 96 U.S. at 9. ‘‘Commerce embraces appliances necessarily employed in carrying on transportation by land and water.’’ Railroad Co. v. Fuller, 84 U.S. (17 

Wall.) 560, 568 (1873). 

681 Act of March 28, 1927, 45 Stat. 373, superseded by the Communications Act 

of 1934, 48 Stat. 1064, 47 U.S.C. §151 et seq. 

682 ‘‘No question is presented as to the power of the Congress, in its regulation 

of interstate commerce, to regulate radio communication.’’ Chief Justice Hughes 

speaking for the Court in Federal Radio Comm’n v. Nelson Bros. Bond & Mortgage 

Co., 289 U.S. 266, 279 (1933). See also Fisher’s Blend Station v. Tax Comm’n, 297 

U. S. 650, 654–655 (1936). 

other instruments of commerce will make their appearance. When 

the Licensing Act of 1793 was passed, the only craft to which it 

could apply were sailing vessels, but it and the power by which it 

was enacted were, Marshall asserted, indifferent to the ‘‘principle’’ 

by which vessels were moved. Its provisions therefore reached 

steam vessels as well. A little over half a century later the principle embodied in this holding was given its classic expression in 

the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. v. Western Union Telegraph Co., 679 a case closely 

paralleling Gibbons v. Ogden in other respects also. ‘‘The powers 

thus granted are not confined to the instrumentalities of commerce, 

or the postal service known or in use when the Constitution was 

adopted, but they keep pace with the progress of the country, and 

adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stagecoach, from the sailing-vessel to the steamboat, from the coach and 

the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to 

meet the demands of increasing population and wealth. They were 

intended for the government of the business to which they relate, 

at all times and under all circumstances. As they were intrusted 

to the general government for the good of the nation, it is not only 

the right, but the duty, of Congress to see to it that intercourse 

among the States and the transmission of intelligence are not obstructed or unnecessarily encumbered by State legislation.’’ 680

The Radio Act of 1927 681 whereby ‘‘all forms of interstate and 

foreign radio transmissions within the United States, its Territories and possessions’’ were brought under national control, affords another illustration. Because of the doctrine thus stated, the 

measure met no serious constitutional challenge either on the 

floors of Congress or in the Courts. 682

ART. I—LEGISLATIVE DEPARTMENT 179

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

683 54 U.S. (13 How.) 518 (1852). 684 Ch. 111, §6, 10 Stat 112 (1852). 685Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 430 

(1856). ‘‘It is Congress, and not the Judicial Department, to which the Constitution 

has given the power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject.’’ Transportation 

Co. v. Parkersburg, 107 U.S. 691, 701 (1883). See also Prudential Ins. Co. v. Benjamin, 328 U.S. 408 (1946); Robertson v. California, 328 U.S. 440 (1946). 686 But see In re Debs, 158 U.S. 564 (1895), in which the Court held that in the 

absence of legislative authorization the Executive had power to seek and federal 

courts to grant injunctive relief to remove obstructions to interstate commerce and 

the free flow of the mail. 687 70 U.S. (3 Wall.) 713 (1866). 

Congressional Regulation of Waterways 

Navigation.—In Pennsylvania v. Wheeling & Belmont Bridge 

Co., 683 the Court granted an injunction requiring that a bridge 

erected over the Ohio River under a charter from the State of Virginia either be altered so as to admit of free navigation of the river 

or else be entirely abated. The decision was justified on the basis 

both of the commerce clause and of a compact between Virginia 

and Kentucky, whereby both these States had agreed to keep the 

Ohio River ‘‘free and common to the citizens of the United States.’’ 

The injunction was promptly rendered inoperative by an act of 

Congress declaring the bridge to be ‘‘a lawful structure’’ and requiring all vessels navigating the Ohio to be so regulated as not to 

interfere with it. 684 This act the Court sustained as within Congress’ power under the commerce clause, saying: ‘‘So far . . . as this 

bridge created an obstruction to the free navigation of the river, in 

view of the previous acts of Congress, they are to be regarded as 

modified by this subsequent legislation; and, although it still may 

be an obstruction in fact, [it] is not so in the contemplation of 

law. . . . [Congress] having in the exercise of this power, regulated 

the navigation consistent with its preservation and continuation, 

the authority to maintain it would seem to be complete. That authority combines the concurrent powers of both governments, State 

and federal, which, if not sufficient, certainly none can be found in 

our system of government.’’ 685 In short, it is Congress, and not the 

Court, which is authorized by the Constitution to regulate commerce. 686

The law and doctrine of the earlier cases with respect to the 

fostering and protection of navigation are well summed up in a frequently cited passage from the Court’s opinion in Gilman v. Philadelphia. 687 ‘‘Commerce includes navigation. The power to regulate 

commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States 

which are accessible from a State other than those in which they 

180 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

688 70 U.S. at 724–25. 689 Union Bridge Co. v. United States, 204 U.S. 364 (1907). See also 

Monongahela Bridge Co. v. United States, 216 U.S. 177 (1910); Wisconsin v. Illinois, 

278 U.S. 367 (1929). The United States may seek injunctive or declaratory relief requiring the removal of obstructions to commerce by those negligently responsible for 

them or it may itself remove the obstructions and proceed against the responsible 

party for costs. United States v. Republic Steel Corp., 362 U.S. 482 (1960); Wyandotte Transportation Co. v. United States, 389 U.S. 191 (1967). Congress’ power in 

this area is newly demonstrated by legislation aimed at pollution and environmental 

degradation. In confirming the title of the States to certain waters under the Submerged Lands Act, 67 Stat. 29 (1953), 43 U.S.C. § 1301 et seq., Congress was careful 

to retain authority over the waters for purposes of commerce, navigation, and the 

like. United States v. Rands, 389 U.S. 121, 127 (1967). 690Gibson v. United States, 166 U.S. 269 (1897). See also Bridge Co. v. United 

States, 105 U.S. 470 (1882); United States v. Rio Grande Irrigation Co., 174 U.S. 

690 (1899); United States v. Chandler-Dunbar Co., 229 U.S. 53 (1913); Seattle v. 

Oregon & W.R.R., 255 U.S. 56, 63 (1921); Economy Light Co. v. United States, 256 

U.S. 113 (1921); United States v. River Rouge Co., 269 U.S. 411, 419 (1926); Ford 

& Son v. Little Falls Co., 280 U.S. 369 (1930); United States v. Commodore Park, 

324 U.S. 386 (1945); United States v. Twin City Power Co., 350 U.S. 222 (1956); 

United States v. Rands, 389 U.S. 121 (1967). 691 United States v. Cress, 243 U.S. 316 (1917). 692 United States v. Chicago, M., St. P. & P.R.R., 312 U.S. 592, 597 (1941); 

United States v. Willow River Co., 324 U.S. 499 (1945). 693 United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1899). 

lie. For this purpose they are the public property of the nation, and 

subject to all requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction 

to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such 

sanctions as they may deem proper, against the occurrence of the 

evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before 

the adoption of the national Constitution, and which have always 

existed in the Parliament in England.’’ 688

Thus, Congress was within its powers in vesting the Secretary 

of War with power to determine whether a structure of any nature 

in or over a navigable stream is an obstruction to navigation and 

to order its abatement if he so finds. 689 Nor is the United States 

required to compensate the owners of such structures for their loss, 

since they were always subject to the servitude represented by 

Congress’ powers over commerce, and the same is true of the property of riparian owners that is damaged. 690 And while it was formerly held that lands adjoining nonnavigable streams were not 

subject to the above mentioned servitude, 691 this rule has been impaired by recent decisions; 692 and at any rate it would not apply 

as to a stream rendered navigable by improvements. 693

In exercising its power to foster and protect navigation, Congress legislates primarily on things external to the act of navigation. But that act itself and the instruments by which it is accomVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00118 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 181

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

694 77 U.S. (10 Wall.) 557 (1871). 695 77 U.S. at 565. 

plished are also subject to Congress’ power if and when they enter 

into or form a part of ‘‘commerce among the several States.’’ When 

does this happen? Words quoted above from the Court’s opinion in 

the Gilman case answered this question to some extent; but the decisive answer to it was returned five years later in the case of The

Daniel Ball. 694 Here the question at issue was whether an act of 

Congress, passed in 1838 and amended in 1852, which required 

that steam vessels engaged in transporting passengers or merchandise upon the ‘‘bays, lakes, rivers, or other navigable waters of the 

United States,’’ applied to the case of a vessel that navigated only 

the waters of the Grand River, a stream lying entirely in the State 

of Michigan. The Court ruled: ‘‘In this case it is admitted that the 

steamer was engaged in shipping and transporting down Grand 

River, goods destined and marked for other States than Michigan, 

and in receiving and transporting up the river goods brought within the State from without its limits; . . . . So far as she was employed in transporting goods destined for other States, or goods 

brought from without the limits of Michigan and destined to places 

within that State, she was engaged in commerce between the 

States, and however limited that commerce may have been, she 

was, so far as it went, subject to the legislation of Congress. She 

was employed as an instrument of that commerce; for whenever a 

commodity has begun to move as an article of trade from one State 

to another, commerce in that commodity between the States has 

commenced.’’ 695

Counsel had suggested that if the vessel was in commerce because it was part of a stream of commerce then all transportation 

within a State was commerce. Turning to this point, the Court 

added: ‘‘We answer that the present case relates to transportation 

on the navigable waters of the United States, and we are not called 

upon to express an opinion upon the power of Congress over interstate commerce when carried on by land transportation. And we 

answer further, that we are unable to draw any clear and distinct 

line between the authority of Congress to regulate an agency employed in commerce between the States, when the agency extends 

through two or more States, and when it is confined in its action 

entirely within the limits of a single State. If its authority does not 

extend to an agency in such commerce, when that agency is confined within the limits of a State, its entire authority over interstate commerce may be defeated. Several agencies combining, each 

taking up the commodity transported at the boundary line at one 

end of a State, and leaving it at the boundary line at the other end, 

182 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

696 77 U.S. at 566. ‘‘The regulation of commerce implies as much control, as farreaching power, over an artificial as over a natural highway.’’ Justice Brewer for 

the Court in Monongahela Navigation Co. v. United States, 148 U.S. 312, 342 

(1893). 697 Congress had the right to confer upon the Interstate Commerce Commission 

the power to regulate interstate ferry rates, N.Y. Central R.R. v. Hudson County, 

227 U.S. 248 (1913), and to authorize the Commission to govern the towing of vessels between points in the same State but partly through waters of an adjoining 

State. Cornell Steamboat Co. v. United States, 321 U.S. 634 (1944). Congress’ power 

over navigation extends to persons furnishing wharfage, dock, warehouse, and other 

terminal facilities to a common carrier by water. Hence an order of the United 

States Maritime Commission banning certain allegedly ‘‘unreasonable practices’’ by 

terminals in the Port of San Francisco, and prescribing schedules of maximum free 

time periods and of minimum charges was constitutional. California v. United 

States, 320 U.S. 577 (1944). The same power also comprises regulation of the registry enrollment, license, and nationality of ships and vessels, the method of recording bills of sale and mortgages thereon, the rights and duties of seamen, the limitations of the responsibility of shipowners for the negligence and misconduct of their 

captains and crews, and many other things of a character truly maritime. See The

Lottawanna, 88 U.S. (21 Wall.) 558, 577 (1875); Providence & N.Y. SS. Co. v. Hill 

Mfg. Co., 109 U.S. 578, 589 (1883); The Hamilton, 207 U.S. 398 (1907); O’Donnell 

v. Great Lakes Co., 318 U.S. 36 (1943). 698Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Shively v. Bowlby, 152 U.S. 

1 (1894). 699Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898). 700 229 U.S. 53 (1913). 

the federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter.’’ 696 In short, it was admitted, inferentially, that the principle of the decision would apply 

to land transportation, but the actual demonstration of the fact still 

awaited some years. 697

Hydroelectric Power; Flood Control.—As a consequence, in 

part, of its power to forbid or remove obstructions to navigation in 

the navigable waters of the United States, Congress has acquired 

the right to develop hydroelectric power and the ancillary right to 

sell it to all takers. By a long-standing doctrine of constitutional 

law, the States possess dominion over the beds of all navigable 

streams within their borders, 698 but because of the servitude that 

Congress’ power to regulate commerce imposes upon such streams, 

the States, without the assent of Congress, practically are unable 

to utilize their prerogative for power development purposes. Sensing no doubt that controlling power to this end must be attributed 

to some government in the United States and that ‘‘in such matters 

there can be no divided empire,’’ 699 the Court held in United States 

v. Chandler-Dunbar Co., 700 that in constructing works for the improvement of the navigability of a stream, Congress was entitled, 

as part of a general plan, to authorize the lease or sale of such excess water power as might result from the conservation of the flow 

of the stream. ‘‘If the primary purpose is legitimate,’’ it said, ‘‘we 

can see no sound objection to leasing any excess of power over the 

ART. I—LEGISLATIVE DEPARTMENT 183

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

701 229 U.S. at 73, citing Kaukauna Water Power Co. v. Green Bay & Miss. 

Canal Co., 142 U.S. 254 (1891). 702 283 U.S. 423 (1931). 703 311 U.S. 377 (1940). 704 283 U.S. at 455–456. See also United States v. Twin City Power Co., 350 U.S. 

222, 224 (1956). 705 311 U.S. at 407, 409–10. 

needs of the Government. The practice is not unusual in respect to 

similar public works constructed by State governments.’’ 701

Since the Chandler-Dunbar case, the Court has come, in effect, 

to hold that it will sustain any act of Congress which purports to 

be for the improvement of navigation whatever other purposes it 

may also embody, nor does the stream involved have to be one 

‘‘navigable in its natural state.’’ Such, at least, seems to be the sum 

of its holdings in Arizona v. California, 702 and United States v. Appalachian Power Co. 703 In the former, the Court, speaking through 

Justice Brandeis, said that it was not free to inquire into the motives ‘‘which induced members of Congress to enact the Boulder 

Canyon Project Act,’’ adding: ‘‘As the river is navigable and the 

means which the Act provides are not unrelated to the control of 

navigation . . . the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. 

Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. . . . And the fact that purposes other than navigation will also be served could not invalidate 

the exercise of the authority conferred, even if those other purposes 

would not alone have justified an exercise of congressional 

power.’’ 704

And in the Appalachian Power case, the Court, abandoning 

previous holdings laying down the doctrine that to be subject to 

Congress’ power to regulate commerce a stream must be ‘‘navigable 

in fact,’’ said: ‘‘A waterway, otherwise suitable for navigation, is not 

barred from that classification merely because artificial aids must 

make the highway suitable for use before commercial navigation 

may be undertaken,’’ provided there must be a ‘‘balance between 

cost and need at a time when the improvement would be useful. . . . 

Nor is it necessary that the improvements should be actually completed or even authorized. The power of Congress over commerce 

is not to be hampered because of the necessity for reasonable improvements to make an interstate waterway available for traffic. . . . 

Nor is it necessary for navigability that the use should be continuous. . . . Even absence of use over long periods of years, because of 

changed conditions, . . . does not affect the navigability of rivers in 

the constitutional sense.’’ 705

184 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

706 311 U.S. at 426. 707Oklahoma v. Atkinson Co., 313 U.S. 508, 523–33 passim (1941). 708 Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936). 709 Cf. Indiana v. United States, 148 U.S. 148 (1893). 710 12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79 (1866). 711The result then as well as now might have followed from Congress’ power 

of spending, independently of the commerce clause, as well as from its war and postal powers, which were also invoked by the Court in this connection. 712Thomson v. Union Pacific R.R., 76 U.S. (9 Wall.) 579 (1870); California v. Pacific R.R. Co. (Pacific Ry. Cases), 127 U.S. 1 (1888); Cherokee Nation v. Southern 

Kansas Ry. Co., 135 U.S. 641 (1890); Luxton v. North River Bridge Co., 153 U.S. 

525 (1894). 

Furthermore, the Court defined the purposes for which Congress may regulate navigation in the broadest terms. ‘‘It cannot 

properly be said that the constitutional power of the United States 

over its waters is limited to control for navigation. . . . That authority is as broad as the needs of commerce. . . . Flood protection, watershed development, recovery of the cost of improvements through 

utilization of power are likewise parts of commerce control.’’ 706

These views the Court has since reiterated. 707 Nor is it by virtue 

of Congress’ power over navigation alone that the National Government may develop water power. Its war powers and powers of expenditure in furtherance of the common defense and the general 

welfare supplement its powers over commerce in this respect. 708

Congressional Regulation of Land Transportation 

Federal Stimulation of Land Transportation.—The settlement of the interior of the country led Congress to seek to facilitate 

access by first encouraging the construction of highways. In successive acts, it authorized construction of the Cumberland and the National Road from the Potomac across the Alleghenies to the Ohio, 

reserving certain public lands and revenues from land sales for 

construction of public roads to new States granted statehood. 709 Acquisition and settlement of California stimulated interest in railway lines to the west, but it was not until the Civil War that Congress voted aid in the construction of a line from the Missouri 

River to the Pacific; four years later, it chartered the Union Pacific 

Company. 710

The litigation growing out of these and subsequent activities 

settled several propositions. First, Congress may provide highways 

and railways for interstate transportation; 711 second, it may charter private corporations for that purpose; third, it may vest such 

corporations with the power of eminent domain in the States; and 

fourth, it may exempt their franchises from state taxation. 712

Federal Regulation of Land Transportation.—Congressional regulation of railroads may be said to have begun in 1866. 

ART. I—LEGISLATIVE DEPARTMENT 185

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

713 14 Stat. 66 (1866). 714 14 Stat. 221 (1866). 715 17 Stat. 353 (1873). 716Munn v. Illinois, 94 U.S. 113 (1877); Chicago B. & Q. R. Co. v. Iowa, 94 U.S. 

155 (1877); Peik v. Chicago & Nw. Ry. Co., 94 U.S. 164 (1877); Pickard v. Pullman 

Southern Car Co., 117 U.S. 34 (1886). 717Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U.S. 557 (1886). A variety of state 

regulations have been struck down on the burdening-of-commerce rationale. E.g.,

Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761 (1945) (train length); 

Napier v. Atlantic Coast Line R.R., 272 U.S. 605 (1926) (locomotive accessories); 

Pennsylvania R.R. v. Public Service Comm’n, 250 U.S. 566 (1919). But the Court 

has largely exempted regulations with a safety purpose, even a questionable one. 

Brotherhood of Firemen v. Chicago, R. I. & P. R. Co., 393 U.S. 129 (1968). 718 24 Stat. 379 (1887). 719 154 U.S. 447 (1894). 720 ICC v. Alabama Midland Ry., 168 U.S. 144 (1897); Cincinnati, N.O. & Texas 

Pacific Ry. v. ICC, 162 U.S. 184 (1896). 

By the Garfield Act, Congress authorized all railroad companies operating by steam to interconnect with each other ‘‘so as to form 

continuous lines for the transportation of passengers, freight, 

troops, governmental supplies, and mails, to their destination.’’ 713

An act of the same year provided federal chartering and protection 

from conflicting state regulations to companies formed to construct 

and operate telegraph lines. 714 Another act regulated the transportation by railroad of livestock so as to preserve the health and safety of the animals. 715

Congress’ entry into the rate regulation field was preceded by 

state attempts to curb the abuses of the rail lines in the Middle 

West, which culminated in the ‘‘Granger Movement.’’ Because the 

businesses were locally owned, the Court at first upheld state laws 

as not constituting a burden on interstate commerce; 716 but after 

the various business panics of the 1870s and 1880s drove numerous 

small companies into bankruptcy and led to consolidation, there 

emerged great interstate systems. Thus in 1886, the Court held 

that a State may not set charges for carriage even within its own 

boundaries of goods brought from without the State or destined to 

points outside it; that power was exclusively with Congress. 717 In

the following year, Congress passed the original Interstate Commerce Act. 718 A Commission was authorized to pass upon the ‘‘reasonableness’’ of all rates by railroads for the transportation of goods 

or persons in interstate commerce and to order the discontinuance 

of all charges found to be ‘‘unreasonable.’’ The Commission’s basic 

authority was upheld in ICC v. Brimson, 719 in which the Court 

upheld the validity of the Act as a means ‘‘necessary and proper’’ 

for the enforcement of the regulatory commerce power and in which 

it also sustained the Commission’s power to go to court to secure 

compliance with its orders. Later decisions circumscribed somewhat 

the ICC’s power. 720

186 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

721 34 Stat. 584 (1906). 722 36 Stat. 539 (1910). 723These regulatory powers are now vested, of course, in the Federal Communications Commission. 724 49 Stat. 543 (1935). 725 41 Stat. 474 (1920). 726 54 Stat. 898 (1940), U.S.C. § 1 et seq. The two acts were ‘‘intended . . . to provide a completely integrated interstate regulatory system over motor, railroad, and 

water carriers.’’ United States v. Pennsylvania R.R., 323 U.S. 612, 618–619 (1945). 

The ICC’s powers include authority to determine the reasonableness of a joint 

through international rate covering transportation in the United States and abroad 

and to order the domestic carriers to pay reparations in the amount by which the 

rate is unreasonable. Canada Packers v. Atchison, T. & S. F. Ry., 385 U.S. 182 

(1966), and cases cited. 727Disputes between the ICC and other Government agencies over mergers have 

occupied a good deal of the Court’s time. Cf. United States v. ICC, 396 U.S. 491 

(1970). See also County of Marin v. United States, 356 U.S. 412 (1958); McLean 

Trucking Co. v. United States, 321 U.S. 67 (1944); Penn-Central Merger & N & W 

Inclusion Cases, 389 U.S. 486 (1968). 728 Among the various provisions of the Interstate Commerce Act which have 

been upheld are: a section penalizing shippers for obtaining transportation at less 

than published rates, Armour Packing Co. v. United States, 209 U.S. 56 (1908); a 

section construed as prohibiting the hauling of commodities in which the carrier had 

at the time of haul a proprietary interest, United States v. Delaware & Hudson Co., 

213 U.S. 366 (1909); a section abrogating life passes, Louisville & Nashville R.R. 

v. Mottley, 219 U.S. 467 (1911); a section authorizing the ICC to regulate the entire 

bookkeeping system of interstate carriers, including intrastate accounts, ICC v. 

Goodrich Transit Co., 224 U.S. 194 (1912); a clause affecting the charging of rates 

different for long and short hauls. Intermountain Rate Cases, 234 U.S. 476 (1914). 

Expansion of the Commission’s authority came in the Hepburn 

Act of 1906 721 and the Mann-Elkins Act of 1910. 722 By the former, 

the Commission was explicitly empowered, after a full hearing on 

a complaint, ‘‘to determine and prescribe just and reasonable’’ maximum rates; by the latter, it was authorized to set rates on its own 

initiative and empowered to suspend any increase in rates by a carrier until it reviewed the change. At the same time, the Commission’s jurisdiction was extended to telegraphs, telephones, and cables. 723 By the Motor Carrier Act of 1935, 724 the ICC was authorized to regulate the transportation of persons and property by 

motor vehicle common carriers. 

The modern powers of the Commission were largely defined by 

the Transportation Acts of 1920 725 and 1940. 726 The jurisdiction of 

the Commission covers not only the characteristics of the rail, 

motor, and water carriers in commerce among the States but also 

the issuance of securities by them and all consolidations of existing 

companies or lines. 727 Further, the Commission was charged with 

regulating so as to foster and promote the meeting of the transportation needs of the country. Thus, from a regulatory exercise originally begun as a method of restraint there has emerged a policy 

of encouraging a consistent national transportation policy. 728

ART. I—LEGISLATIVE DEPARTMENT 187

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

729 Houston & Texas Ry. v. United States, 234 U.S. 342, 351–352 (1914). See

also, American Express Co. v. Caldwell, 244 U.S. 617 (1917); Pacific Tel. & Tel. Co. 

v. Tax Comm’n, 297 U.S. 403 (1936); Weiss v. United States, 308 U.S. 321 (1939); 

Bethlehem Steel Co. v. State Board, 330 U.S. 767 (1947); United States v. Walsh, 

331 U.S. 432 (1947). 730Wisconsin R.R. Comm’n v. Chicago, B. & Q. R. Co., 257 U.S. 563 (1922). 

Cf. Colorado v. United States, 271 U.S. 153 (1926), upholding an ICC order directing 

abandonment of an intrastate branch of an interstate railroad. But see North Carolina v. United States, 325 U.S. 507 (1945), setting aside an ICC disallowance of 

intrastate rates set by a state commission as unsupported by the evidence and findings.731 27 Stat. 531, 45 U.S.C. §§ 1–7. 732 32 Stat. 943, 45 U.S.C. §§ 8–10. 

Federal Regulation of Intrastate Rates (The Shreveport 

Doctrine).—Although its statutory jurisdiction did not apply to 

intrastate rate systems, the Commission early asserted the right to 

pass on rates, which, though in effect on intrastate lines, gave 

these lines competitive advantages over interstate lines the rates 

of which the Commission had set. This power the Supreme Court 

upheld in a case involving a line operating wholly intrastate in 

Texas but which paralleled within Texas an interstate line operating between Louisiana and Texas; the Texas rate body had fixed 

the rates of the intrastate line substantially lower than the rate 

fixed by the ICC on the interstate line. ‘‘Wherever the interstate 

and intrastate transactions of carriers are so related that the government of the one involves the control of the other, it is Congress, 

and not the State, that is entitled to prescribe the final and dominant rule, for otherwise Congress would be denied the exercise of 

its constitutional authority and the States and not the Nation, 

would be supreme in the national field.’’ 729

The same holding was applied in a subsequent case in which 

the Court upheld the Commission’s action in annulling intrastate 

passenger rates it found to be unduly low in comparison with the 

rates the Commission had established for interstate travel, thus 

tending to thwart, in deference to a local interest, the general purpose of the act to maintain an efficient transportation service for 

the benefit of the country at large. 730

Federal Protection of Labor in Interstate Rail Transportation.—Federal entry into the field of protective labor legislation 

and the protection of organization efforts of workers began in connection with the railroads. The Safety Appliance Act of 1893, 731 applying only to cars and locomotives engaged in moving interstate 

traffic, was amended in 1903 so as to embrace much of the intrastate rail systems on which there was any connection with interstate commerce. 732 The Court sustained this extension in language 

much like that it would use in the Shreveport case three years 

188 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

733Southern Ry. v. United States, 222 U.S. 20 (1911). See also Texas & Pacific 

Ry. v. Rigsby, 241 U.S. 33 (1916); United States v. California, 297 U.S. 175 (1936); 

United States v. Seaboard Air Line R.R., 361 U.S. 78 (1959). 734 34 Stat. 1415, 45 U.S.C. §§ 61–64. 735 Baltimore & Ohio R.R. v. ICC, 221 U.S. 612 (1911). 736 34 Stat. 232, held unconstitutional in part in the Employers’ Liability Cases, 

207 U.S. 463 (1908). 737 35 Stat. 65, 45 U.S.C. §§ 51–60. 738The Second Employers’ Liability Cases, 223 U.S. 1 (1912). For a longer period, a Court majority reviewed a surprising large number of FELA cases, almost 

uniformly expanding the scope of recovery under the statute. Cf. Rogers v. Missouri 

Pacific R.R., 352 U.S. 500 (1957). This practice was criticized both within and without the Court, cf. Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 524 (1957) 

(Justice Frankfurter dissenting); Hart, Foreword: The Time Chart of the Justices, 73 

HARV. L. REV. 84, 96–98 (1959), and has been discontinued. 739See discussion under Railroad Retirement Act and National Labor Relations 

Act, infra. 740The Pipe Line Cases, 234 U.S. 548 (1914). See also State Comm’n v. Wichita 

Gas Co., 290 U.S. 561 (1934); Eureka Pipe Line Co. v. Hallanan, 257 U.S. 265 

(1921); United Fuel Gas Co. v. Hallanan, 257 U.S. 277 (1921); Pennsylvania v. West 

later. 733 These laws were followed by the Hours of Service Act of 

1907, 734 which prescribed maximum hours of employment for rail 

workers in interstate or foreign commerce. The Court sustained the 

regulation as a reasonable means of protecting workers and the 

public from the hazards which could develop from long, tiring 

hours of labor. 735

Most far-reaching of these regulatory measures were the Federal Employers Liability Acts of 1906 736 and 1908. 737 These laws 

were intended to modify the common-law rules with regard to the 

liability of employers for injuries suffered by their employees in the 

course of their employment and under which employers were generally not liable. Rejecting the argument that regulation of such relationships between employers and employees was a reserved state 

power, the Court adopted the argument of the United States that 

Congress was empowered to do anything it might deem appropriate 

to save interstate commerce from interruption or burdening. Inasmuch as the labor of employees was necessary for the function of 

commerce, Congress could certainly act to ameliorate conditions 

that made labor less efficient, less economical, and less reliable. Assurance of compensation for injuries growing out of negligence in 

the course of employment was such a permissible regulation. 738

Legislation and litigation dealing with the organizational 

rights of rail employees are dealt with elsewhere. 739

Regulation of Other Agents of Carriage and Communications.—In 1914, the Court affirmed the power of Congress to regulate the transportation of oil and gas in pipelines from one State 

to another and held that this power applied to the transportation 

even though the oil or gas was the property of the lines. 740 SubseVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00126 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 189

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett v. Kansas Gas Co., 265 U.S. 

298 (1924). 741Public Utilities Comm’n v. Attleboro Co., 273 U.S. 83 (1927). See also Utah

Power & Light Co. v. Pfost, 286 U.S. 165 (1932); Pennsylvania Power Co. v. FPC, 

343 U.S. 414 (1952). 742 49 Stat. 863, 16 U.S.C. §§ 791a–825u. 743 52 Stat. 821, 15 U.S.C. §§ 717–717w. 744FPC v. Natural Gas Pipeline Co., 315 U.S. 575 (1942). 745 315 U.S. at 582. Sales to distributors by a wholesaler of natural gas delivered 

to it from out-of-state sources are subject to FPC jurisdiction. Colorado-Wyoming Co. 

v. FPC, 324 U.S. 626 (1945). See also Illinois Gas Co. v. Public Service Co., 314 U.S. 

498 (1942); FPC v. East Ohio Gas Co., 338 U.S. 464 (1950). In Phillips Petroleum 

Co. v. Wisconsin, 347 U.S. 672 (1954), the Court ruled that an independent company 

engaged in one State in production, gathering, and processing of natural gas, which 

it thereafter sells in the same State to pipelines that transport and sell the gas in 

other States is subject to FPC jurisdiction. See also California v. Lo-Vaca Gathering 

Co., 379 U.S. 366 (1965). 746 48 Stat. 1064, 47 U.S.C. § 151 et seq. Cf. United States v. Southwestern 

Cable Co., 392 U.S. 157 (1968), on the regulation of community antenna television 

systems (CATV). 747 52 Stat. 973, as amended. The CAB has now been abolished and its functions 

are exercised by the Federal Aviation Administration, 49 U.S.C. § 106, as part of 

the Department of Transportation. 

quently, the Court struck down state regulation of rates of electric 

current generated within that State and sold to a distributor in another State as a burden on interstate commerce. 741 Proceeding on 

the assumption that the ruling meant the Federal Government had 

the power, Congress in the Federal Power Act of 1935 conferred on 

the Federal Power Commission authority to regulate the wholesale 

distribution of electricity in interstate commerce 742 and three years 

later vested the FPC with like authority over natural gas moving 

in interstate commerce. 743 Thereafter, the Court sustained the 

power of the Commission to set the prices at which gas originating 

in one State and transported into another should be sold to distributors wholesale in the latter State. 744 ‘‘The sale of natural gas 

originating in the State and its transportation and delivery to distributors in any other State constitutes interstate commerce, which 

is subject to regulation by Congress . . . . The authority of Congress 

to regulate the prices of commodities in interstate commerce is at 

least as great under the Fifth Amendment as is that of the States 

under the Fourteenth to regulate the prices of commodities in 

intrastate commerce.’’ 745

Other acts regulating commerce and communication originating in this period have evoked no basic constitutional challenge. 

These include the Federal Communications Act of 1934, providing 

for the regulation of interstate and foreign communication by wire 

and radio, 746 and the Civil Aeronautics Act of 1938, providing for 

the regulation of all phases of airborne commerce, foreign and 

interstate. 747

190 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

748 26 Stat. 209 (1890); 15 U.S.C. §§ 1–7. 749 156 U.S. 1 (1895). 750 156 U.S. at 13. 

Congressional Regulation of Commerce as Traffic 

The Sherman Act: Sugar Trust Case.—Congress’ chief effort 

to regulate commerce in the primary sense of ‘‘traffic’’ is embodied 

in the Sherman Antitrust Act of 1890, the opening section of which 

declares ‘‘every contract, combination in the form of trust or otherwise,’’ or ‘‘conspiracy in restraint of trade and commerce among the 

several States, or with foreign nations’’ to be ‘‘illegal,’’ while the 

second section makes it a misdemeanor for anybody to ‘‘monopolize 

or attempt to monopolize any part of such commerce.’’ 748 The act 

was passed to curb the growing tendency to form industrial combinations, and the first case to reach the Court under it was the 

famous Sugar Trust Case, United States v. E. C. Knight Co. 749

Here the Government asked for the cancellation of certain agreements, whereby the American Sugar Refining Company, had ‘‘acquired,’’ it was conceded, ‘‘nearly complete control of the manufacture of refined sugar in the United States.’’ 

The question of the validity of the Act was not expressly discussed by the Court but was subordinated to that of its proper construction. The Court, in pursuance of doctrines of constitutional 

law then dominant with it, turned the Act from its intended purpose and destroyed its effectiveness for several years, as that of the 

Interstate Commerce Act was being contemporaneously impaired. 

The following passage early in Chief Justice Fuller’s opinion for the 

Court sets forth the conception of the federal system that controlled 

the decision: ‘‘It is vital that the independence of the commercial 

power and of the police power, and the delimination between them, 

however sometimes perplexing, should always be recognized and 

observed, for while the one furnishes the strongest bond of union, 

the other is essential to the preservation of the autonomy of the 

States as required by our dual form of government; and acknowledged evils, however grave and urgent they may appear to be, had 

better be borne, than the risk be run, in the effort to suppress 

them, of more serious consequences by resort to expedients of even 

doubtful constitutionality.’’ 750

In short, what was needed, the Court felt, was a hard and fast 

line between the two spheres of power, and in a series of propositions it endeavored to lay down such a line: (1) production is always local, and under the exclusive domain of the States; (2) commerce among the States does not begin until goods ‘‘commence 

their final movement from their State of origin to that of their desVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00128 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 191

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

751 156 U.S. at 13–16. 752 156 U.S. at 17. The doctrine of the case boiled down to the proposition that 

commerce was transportation only, a doctrine Justice Harlan undertook to refute in 

his notable dissenting opinion. ‘‘Interstate commerce does not, therefore, consist in 

transportation simply. It includes the purchase and sale of articles that are intended 

to be transported from one State to another—every species of commercial intercourse among the States and with foreign nations’’ Id. at 22. ‘‘Any combination, 

therefore, that disturbs or unreasonably obstructs freedom in buying and selling articles manufactured to be sold to persons in other States or to be carried to other 

States—a freedom that cannot exist if the right to buy and sell is fettered by unlawful restraints that crush out competition—affects, not incidentally, but directly, the 

people of all the States; and the remedy for such an evil is found only in the exercise 

of powers confided to a government which, this court has said, was the government 

of all, exercising powers delegated by all, representing all, acting for all. McCulloch 

v. Maryland, 4 Wheat. 316, 405,’’ Id. at 33. 753 175 U.S. 211 (1899). 

tination;’’ (3) the sale of a product is merely an incident of its production and, while capable of ‘‘bringing the operation of commerce 

into play,’’ affects it only incidentally; (4) such restraint as would 

reach commerce, as above defined, in consequence of combinations 

to control production ‘‘in all its forms,’’ would be ‘‘indirect, however 

inevitable and whatever its extent,’’ and as such beyond the purview of the Act. 751 Applying the above reasoning to the case before 

it, the Court proceeded: ‘‘The object [of the combination] was manifestly private gain in the manufacture of the commodity, but not 

through the control of interstate or foreign commerce. It is true 

that the bill alleged that the products of these refineries were sold 

and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States 

and with foreign nations; but this was no more than to say that 

trade and commerce served manufacture to fulfill its function.’’ 

‘‘Sugar was refined for sale, and sales were probably made at 

Philadelphia for consumption, and undoubtedly for resale by the 

first purchasers throughout Pennsylvania and other States, and refined sugar was also forwarded by the companies to other States 

for sale. Nevertheless it does not follow that an attempt to monopolize, or the actual monopoly of, the manufacture was an attempt, 

whether executory or consummated, to monopolize commerce, even 

though, in order to dispose of the product, the instrumentality of 

commerce was necessarily invoked. There was nothing in the proofs 

to indicate any intention to put a restraint upon trade or commerce, and the fact, as we have seen that trade or commerce might 

be indirectly affected was not enough to entitle complainants to a 

decree.’’ 752

Sherman Act Revived.—Four years later came the case of 

Addyston Pipe and Steel Co. v. United States, 753 in which the Antitrust Act was successfully applied as against an industrial comVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00129 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
192 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

754 196 U.S. 375 (1905). The Sherman Act was applied to break up combinations 

of interstate carriers in United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290 

(1897); United States v. Joint-Traffic Ass’n, 171 U.S. 505 (1898); and Northern Securities Co. v. United States, 193 U.S. 197 (1904). 

In Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 229– 

239 (1948), Justice Rutledge, for the Court, critically reviewed the jurisprudence of 

the limitations on the Act and and the deconstruction of the judicial constraints. In 

recent years, the Court’s decisions have permitted the reach of the Sherman Act to 

expand along with the expanding notions of congressional power. Gulf Oil Corp. v. 

Copp Paving Co., 419 U.S. 186 (1974); Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738 (1976); McLain v. Real Estate Bd. of New Orleans, 444 U.S. 232 

(1980); Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). The Court, however, 

does insist that plaintiffs alleging that an intrastate activity violates the Act prove 

the relationship to interstate commerce set forth in the Act. Gulf Oil Corp, 419 U.S. 

at 194–199. 755Swift & Co. v. United States, 196 U.S. 375, 396 (1905). 

bination for the first time. The agreements in the case, the parties 

to which were manufacturing concerns, effected a division of territory among them, and so involved, it was held, a ‘‘direct’’ restraint 

on the distribution and hence of the transportation of the products 

of the contracting firms. The holding, however, did not question the 

doctrine of the earlier case, which in fact continued substantially 

undisturbed until 1905, when Swift & Co. v. United States, 754 was

decided.

The ‘‘Current of Commerce’’ Concept: The Swift Case.—

Defendants in Swift were some thirty firms engaged in Chicago 

and other cities in the business of buying livestock in their stockyards, in converting it at their packing houses into fresh meat, and 

in the sale and shipment of such fresh meat to purchasers in other 

States. The charge against them was that they had entered into a 

combination to refrain from bidding against each other in the local 

markets, to fix the prices at which they would sell, to restrict shipments of meat, and to do other forbidden acts. The case was appealed to the Supreme Court on defendants’ contention that certain 

of the acts complained of were not acts of interstate commerce and 

so did not fall within a valid reading of the Sherman Act. The 

Court, however, sustained the Government on the ground that the 

‘‘scheme as a whole’’ came within the act, and that the local activities alleged were simply part and parcel of this general scheme. 755

Referring to the purchase of livestock at the stockyards, the 

Court, speaking by Justice Holmes, said: ‘‘Commerce among the 

States is not a technical legal conception, but a practical one, 

drawn from the course of business. When cattle are sent for sale 

from a place in one State, with the expectation that they will end 

their transit, after purchase, in another, and when in effect they 

do so, with only the interruption necessary to find a purchaser at 

the stockyards, and when this is a typical, constantly recurring 

ART. I—LEGISLATIVE DEPARTMENT 193

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

756 196 U.S. at 398–99. 757 196 U.S. at 399–401. 758 196 U.S. at 400. 759Loewe v. Lawlor (The Danbury Hatters Case), 208 U.S. 274 (1908); Duplex 

Printing Press Co. v. Deering, 254 U.S. 443 (1921); Coronado Co. v. United Mine 

Workers, 268 U.S. 295 (1925); United States v. Bruins, 272 U.S. 549 (1926); Bedford 

Co. v. Stone Cutters Ass’n, 274 U.S. 37 (1927); Local 167 v. United States, 291 U.S. 

293 (1934); Allen Bradley Co. v. Union, 325 U.S. 797 (1945); United States v. Employing Plasterers Ass’n, 347 U.S. 186 (1954); United States v. Green, 350 U.S. 415 

(1956); Callanan v. United States, 364 U.S. 587 (1961). 

course, the current thus existing is a current of commerce among 

the States, and the purchase of the cattle is a part and incident of 

such commerce.’’ 756 Likewise the sales alleged of fresh meat at the 

slaughtering places fell within the general design. Even if they imported a technical passing of title at the slaughtering places, they 

also imported that the sales were to persons in other States, and 

that shipments to such States were part of the transaction. 757

Thus, sales of the type that in the Sugar Trust case were thrust 

to one side as immaterial from the point of view of the law, because 

they enabled the manufacturer ‘‘to fulfill its function,’’ were here 

treated as merged in an interstate commerce stream. 

Thus, the concept of commerce as trade, that is, as traffic,

again entered the constitutional law picture, with the result that 

conditions directly affecting interstate trade could not be dismissed 

on the ground that they affected interstate commerce, in the sense 

of interstate transportation, only ‘‘indirectly.’’ Lastly, the Court 

added these significant words: ‘‘But we do not mean to imply that 

the rule which marks the point at which State taxation or regulation becomes permissible necessarily is beyond the scope of interference by Congress in cases where such interference is deemed 

necessary for the protection of commerce among the States.’’ 758

That is to say, the line that confines state power from one side does 

not always confine national power from the other. Even though the 

line accurately divides the subject matter of the complementary 

spheres, national power is always entitled to take on the additional 

extension that is requisite to guarantee its effective exercise and is 

furthermore supreme. 

The Danbury Hatters Case.—In this respect, the Swift case

only states what the Shreveport case was later to declare more explicitly, and the same may be said of an ensuing series of cases in 

which combinations of employees engaged in such intrastate activities as manufacturing, mining, building, construction, and the distribution of poultry were subjected to the penalties of the Sherman 

Act because of the effect or intended effect of their activities on 

interstate commerce. 759

194 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

760 42 Stat. 159, 7 U.S.C. §§ 171–183, 191–195, 201–203. 761 42 Stat. 998 (1922), 7 U.S.C. §§ 1–9, 10a–17. 762 258 U.S. 495 (1922). 763 258 U.S. at 514. 764 258 U.S. at 515–16. See also Lemke v. Farmers Grain Co., 258 U.S. 50 

(1922); Minnesota v. Blasius, 290 U.S. 1 (1933). 765 262 U.S. 1 (1923). 766 262 U.S. at 35. 

Stockyards and Grain Futures Acts.—In 1921 Congress 

passed the Packers and Stockyards Act 760 whereby the business of 

commission men and livestock dealers in the chief stockyards of the 

country was brought under national supervision, and in the year 

following it passed the Grain Futures Act 761 whereby exchanges 

dealing in grain futures were subjected to control. The decisions of 

the Court sustaining these measures both built directly upon the 

Swift case.

In Stafford v. Wallace, 762 which involved the former act, Chief 

Justice Taft, speaking for the Court, said: ‘‘The object to be secured 

by the act is the free and unburdened flow of livestock from the 

ranges and farms of the West and Southwest through the great 

stockyards and slaughtering centers on the borders of that region, 

and thence in the form of meat products to the consuming cities of 

the country in the Middle West and East, or, still as livestock, to 

the feeding places and fattening farms in the Middle West or East 

for further preparation for the market.’’ 763 The stockyards, therefore, were ‘‘not a place of rest or final destination.’’ They were ‘‘but 

a throat through which the current flows,’’ and the sales there were 

not merely local transactions. ‘‘They do not stop the flow;—but, on 

the contrary’’ are ‘‘indispensable to its continuity.’’ 764

In Chicago Board of Trade v. Olsen, 765 involving the Grain Futures Act, the same course of reasoning was repeated. Speaking of 

the Swift case, Chief Justice Taft remarked: ‘‘That case was a milestone in the interpretation of the commerce clause of the Constitution. It recognized the great changes and development in the business of this vast country and drew again the dividing line between 

interstate and intrastate commerce where the Constitution intended it to be. It refused to permit local incidents of a great interstate movement, which taken alone are intrastate, to characterize 

the movement as such.’’ 766

Of special significance, however, is the part of the opinion devoted to showing the relation between future sales and cash sales, 

and hence the effect of the former upon the interstate grain trade. 

The test, said the Chief Justice, was furnished by the question of 

price. ‘‘The question of price dominates trade between the States. 

Sales of an article which affect the country-wide price of the article 

ART. I—LEGISLATIVE DEPARTMENT 195

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

767 262 U.S. at 40. 768 262 U.S. at 37, quoting Stafford v. Wallace, 258 U.S. 495, 521 (1922). 769 48 Stat. 881, 15 U.S.C. § 77b et seq. 770 49 Stat. 803, 15 U.S.C. §§ 79–79z–6. 

directly affect the country-wide commerce in it.’’ 767 Thus a practice 

which demonstrably affects prices would also affect interstate trade 

‘‘directly,’’ and so, even though local in itself, would fall within the 

regulatory power of Congress. In the following passage, indeed, 

Chief Justice Taft whittled down, in both cases, the ‘‘direct-indirect’’ formula to the vanishing point: ‘‘Whatever amounts to more 

or less constant practice, and threatens to obstruct or unduly to 

burden the freedom of interstate commerce is within the regulatory 

power of Congress under the commerce clause, and it is primarily 

for Congress to consider and decide the fact of the danger to meet 

it. This court will certainly not substitute its judgment for that of 

Congress in such a matter unless the relation of the subject to 

interstate commerce and its effect upon it are clearly nonexistent.’’ 768

It was in reliance on the doctrine of these cases that Congress 

first set to work to combat the Depression in 1933 and the years 

immediately following. But in fact, much of its legislation at this 

time marked a wide advance upon the measures just passed in review. They did not stop with regulating traffic among the States 

and the instrumentalities thereof; they also essayed to govern production and industrial relations in the field of production. Confronted with this expansive exercise of Congress’ power, the Court 

again deemed itself called upon to define a limit to the commerce 

power that would save to the States their historical sphere, and especially their customary monopoly of legislative power in relation 

to industry and labor management. 

Securities and Exchange Commission.—Not all 

antidepression legislation, however, was of this new approach. The 

Securities Exchange Act of 1934 769 and the Public Utility Company 

Act (‘‘Wheeler-Rayburn Act’’) of 1935 770 were not. The former created the Securities and Exchange Commission and authorized it to 

lay down regulations designed to keep dealing in securities honest 

and aboveboard and closed the channels of interstate commerce 

and the mails to dealers refusing to register under the act. The latter required the companies governed by it to register with the Securities and Exchange Commission and to inform it concerning 

their business, organization and financial structure, all on pain of 

being prohibited use of the facilities of interstate commerce and the 

mails; while by § 11, the so-called ‘‘death sentence’’ clause, the 

same act closed after a certain date the channels of interstate comVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00133 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
196 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

771 Electric Bond Co. v. SEC, 303 U.S. 419 (1938); North American Co. v. SEC, 

327 U.S. 686 (1946); American Power & Light Co. v. SEC, 329 U.S. 90 (1946). 772 Appalachian Coals, Inc. v. United States, 288 U.S. 344, 372 (1933). 773 48 Stat. 195. 774 295 U.S. 495 (1935). 

munication to certain types of public utility companies whose operations, Congress found, were calculated chiefly to exploit the investing and consuming public. All these provisions have been sustained, 771 Gibbons v. Ogden furnishing the Court its principle reliance.

Congressional Regulation of Production and Industrial 

Relations: Antidepression Legislation 

In the words of Chief Justice Hughes, spoken in a case decided 

a few days after President Franklin D. Roosevelt’s first inauguration, the problem then confronting the new Administration was 

clearly set forth. ‘‘When industry is grievously hurt, when producing concerns fail, when unemployment mounts and communities 

dependent upon profitable production are prostrated, the wells of 

commerce go dry.’’ 772

National Industrial Recovery Act.—The initial effort of 

Congress to deal with this situation was embodied in the National 

Industrial Recovery Act of June 16, 1933. 773 The opening section 

of the Act asserted the existence of ‘‘a national emergency productive of widespread unemployment and disorganization of industry 

which’’ burdened ‘‘interstate and foreign commerce,’’ affected ‘‘the 

public welfare,’’ and undermined ‘‘the standards of living of the 

American people.’’ To affect the removal of these conditions the 

President was authorized, upon the application of industrial or 

trade groups, to approve ‘‘codes of fair competition,’’ or to prescribe 

the same in cases where such applications were not duly forthcoming. Among other things such codes, of which eventually more 

than 700 were promulgated, were required to lay down rules of fair 

dealing with customers and to furnish labor certain guarantees respecting hours, wages and collective bargaining. For the time 

being, business and industry were to be cartelized on a national 

scale.

In A.L.A. Schechter Poultry Corp. v. United States, 774 one of 

these codes, the Live Poultry Code, was pronounced unconstitutional. Although it was conceded that practically all poultry handled by the Schechters came from outside the State, and hence via 

interstate commerce, the Court held, nevertheless, that once the 

chickens came to rest in the Schechter’s wholesale market, interstate commerce in them ceased. The act, however, also purported 

ART. I—LEGISLATIVE DEPARTMENT 197

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

775 295 U.S. at 548. See also id. at 546. 776 In United States v. Sullivan, 332 U.S. 689 (1948), the Court interpreted the 

Federal Food, Drug, and Cosmetic Act of 1938 as applying to the sale by a retailer 

of drugs purchased from his wholesaler within the State nine months after their 

interstate shipment had been completed. The Court, speaking by Justice Black, 

cited United States v. Walsh, 331 U.S. 432 (1947); Wickard v. Filburn, 317 U.S. 111 

(1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); United States 

v. Darby, 312 U.S. 100 (1941). Justice Frankfurter dissented on the basis of FTC 

v. Bunte Bros., 312 U.S. 349 (1941). It is apparent that the Schechter case has been 

thoroughly repudiated so far as the distinction between ‘‘direct’’ and ‘‘indirect’’ effects is concerned. Cf. Perez v. United States, 402 U.S. 146 (1971). See also 

McDermott v. Wisconsin, 228 U.S. 115 (1913), which preceded the Schechter decision

by more than two decades. 

The NIRA, however, was found to have several other constitutional infirmities 

besides its disregard, as illustrated by the Live Poultry Code, of the ‘‘fundamental’’ 

distinction between ‘‘direct’’ and ‘‘indirect’’ effects, namely, the delegation of 

standardless legislative power, the absence of any administrative procedural safeguards, the absence of judicial review, and the dominant role played by private 

groups in the general scheme of regulation. 777 48 Stat. 31 (1933). 778 United States v. Butler, 297 U.S. 1, 63–64, 68 (1936). 779 49 Stat. 991 (1935). 

to govern business activities which ‘‘affected’’ interstate commerce. 

This, Chief Justice Hughes held, must be taken to mean ‘‘directly’’ 

affect such commerce: ‘‘the distinction between direct and indirect 

effects of intrastate transactions upon interstate commerce must be 

recognized as a fundamental one, essential to the maintenance of 

our constitutional system. Otherwise, . . . there would be virtually 

no limit to the federal power and for all practical purposes we 

should have a completely centralized government.’’ 775 In short, the 

case was governed by the ideology of the Sugar Trust case, which 

was not mentioned in the Court’s opinion. 776

Agricultural Adjustment Act.—Congress’ second attempt to 

combat the Depression comprised the Agricultural Adjustment Act 

of 1933. 777 As is pointed out elsewhere, the measure was set aside 

as an attempt to regulate production, a subject held to be ‘‘prohibited’’ to the United States by the Tenth Amendment. 778

Bituminous Coal Conservation Act.—The third measure to 

be disallowed was the Guffey-Snyder Bituminous Coal Conservation Act of 1935. 779 The statute created machinery for the regulation of the price of soft coal, both that sold in interstate commerce 

and that sold ‘‘locally,’’ and other machinery for the regulation of 

hours of labor and wages in the mines. The clauses of the act dealing with these two different matters were declared by the act itself 

to be separable so that the invalidity of the one set would not affect 

the validity of the other, but this strategy was ineffectual. A majority of the Court, speaking by Justice Sutherland, held that the act 

constituted one connected scheme of regulation, which, inasmuch 

as it invaded the reserved powers of the States over conditions of 

198 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

780 Carter v. Carter Coal Co., 298 U.S. 238 (1936). 781 298 U.S. at 308–09. 782 48 Stat. 1283 (1934). 783 295 U.S. 330 (1935). 

employment in productive industry, was violative of the Constitution. 780 Justice Sutherland’s opinion set out from Chief Justice 

Hughes’ assertion in the Schechter case of the ‘‘fundamental’’ character of the distinction between ‘‘direct’’ and ‘‘indirect’’ effects, that 

is to say, from the doctrine of the Sugar Trust case. It then proceeded: ‘‘Much stress is put upon the evils which come from the 

struggle between employers and employees over the matter of 

wages, working conditions, the right of collective bargaining, etc., 

and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce 

is greatly affected thereby. But . . . the conclusive answer is that 

the evils are all local evils over which the Federal Government has 

no legislative control. The relation of employer and employee is a 

local relation. At common law, it is one of the domestic relations. 

The wages are paid for the doing of local work. Working conditions 

are obviously local conditions. The employees are not engaged in or 

about commerce, but exclusively in producing a commodity. And 

the controversies and evils, which it is the object of the act to regulate and minimize, are local controversies and evils affecting local 

work undertaken to accomplish that local result. Such effect as 

they may have upon commerce, however extensive it may be, is secondary and indirect. An increase in the greatness of the effect adds 

to its importance. It does not alter its character.’’ 781

Railroad Retirement Act.—Still pursuing the idea of protecting commerce and the labor engaged in it concurrently, Congress, by the Railroad Retirement Act of June 27, 1934, 782 ordered

the compulsory retirement of superannuated employees of interstate carriers, and provided that they be paid pensions out of a 

fund comprising compulsory contributions from the carriers and 

their present and future employees. In Railroad Retirement Board 

v. Alton R.R., 783 however, a closely divided Court held this legislation to be in excess of Congress’ power to regulate commerce and 

contrary to the due process clause of the Fifth Amendment. Said 

Justice Roberts for the majority: ‘‘We feel bound to hold that a pension plan thus imposed is in no proper sense a regulation of the 

activity of interstate transportation. It is an attempt for social ends 

to impose by sheer fiat noncontractual incidents upon the relation 

of employer and employee, not as a rule or regulation of commerce 

and transportation between the States, but as a means of assuring 

a particular class of employees against old age dependency. This is 

ART. I—LEGISLATIVE DEPARTMENT 199

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

784 295 U.S. at 374. 785 295 U.S. at 379, 384. 786 326 U.S. 446 (1946). Indeed, in a case decided in June, 1948, Justice Rutledge, speaking for a majority of the Court, listed the Alton case as one ‘‘foredoomed 

to reversal,’’ though the formal reversal has never taken place. See Mandeville Island Farms v. American Crystal Sugar Co., 334 U.S. 219, 230 (1948). Cf. Usery v. 

Turner Elkhorn Mining Co., 428 U.S. 1, 19 (1976). 787 301 U.S. 1 (1937). A major political event had intervened between this decision and those described in the preceding pages. President Roosevelt, angered at the 

Court’s invalidation of much of his depression program, proposed a ‘‘reorganization’’ 

of the Court by which he would have been enabled to name one new Justice for each 

Justice on the Court who was more than 70 years old, in the name of ‘‘judicial efficiency.’’ The plan was defeated in the Senate, in part, perhaps, because in such 

cases as Jones & Laughlin a Court majority began to demonstrate sufficient ‘‘judicial efficiency.’’ See Leuchtenberg, The Origins of Franklin D. Roosevelt’s ‘CourtPacking’ Plan, 1966 SUP. CT. REV. 347 (P. Kurland ed.); Mason, Harlan Fiske Stone 

and FDR’s Court Plan, 61 YALE L. J. 791 (1952); 2 M. PUSEY, CHARLES EVANS

HUGHES 759–765 (1951). 788 49 Stat. 449, as amended, 29 U.S.C. § 151 et seq. 

neither a necessary nor an appropriate rule or regulation affecting 

the due fulfillment of the railroads’ duty to serve the public in 

interstate transportation.’’ 784

Chief Justice Hughes, speaking for the dissenters, contended, 

on the contrary, that ‘‘the morale of the employees [had] an important bearing upon the efficiency of the transportation service.’’ He 

added: ‘‘The fundamental consideration which supports this type of 

legislation is that industry should take care of its human wastage, 

whether that is due to accident or age. That view cannot be dismissed as arbitrary or capricious. It is a reasoned conviction based 

upon abundant experience. The expression of that conviction in law 

is regulation. When expressed in the government of interstate carriers, with respect to their employees likewise engaged in interstate commerce, it is a regulation of that commerce. As such, so far 

as the subject matter is concerned, the commerce clause should be 

held applicable.’’ 785 Under subsequent legislation, an excise is levied on interstate carriers and their employees, while by separate 

but parallel legislation a fund is created in the Treasury out of 

which pensions are paid along the lines of the original plan. The 

constitutionality of this scheme appears to be taken for granted in 

Railroad Retirement Board v. Duquesne Warehouse Co. 786

National Labor Relations Act.—The case in which the 

Court reduced the distinction between ‘‘direct’’ and ‘‘indirect’’ effects to the vanishing point and thereby placed Congress in the position to regulate productive industry and labor relations in these 

industries was NLRB v. Jones & Laughlin Steel Corp. 787 Here the 

statute involved was the National Labor Relations Act of 1935, 788

which declared the right of workers to organize, forbade unlawful 

employer interference with this right, established procedures by 

200 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

789The NLRA was enacted not only against the backdrop of depression, although obviously it went far beyond being a mere antidepression measure, but Congress could as well look to its experience in railway labor legislation. In 1898, Congress passed the Erdman Act, 30 Stat. 424, which attempted to influence the unionization of railroad workers and facilitate negotiations with employers through mediation. The statute fell largely into disuse because the railroads refused to mediate. 

Additionally, in Adair v. United States, 208 U.S. 161 (1908), the Court struck down 

a section of the law outlawing ‘‘yellow-dog contracts,’’ by which employers exacted 

promises of workers to quit or not to join unions as a condition of employment. The 

Court held the section not to be a regulation of commerce, there being no connection 

between an employee’s membership in a union and the carrying on of interstate 

commerce. Cf. Coppage v. Kansas, 236 U.S. 1 (1915). 

The Court did uphold in Wilson v. New, 243 U.S. 332 (1917), a congressional 

settlement of a threatened rail strike through the enactment of an eight-hour day 

and a time-and-a-half for overtime for all interstate railway employees. The national 

emergency confronting the Nation was cited by the Court but with the implication 

that the power existed in more normal times, suggesting that Congress’ powers were 

not as limited as some judicial decisions had indicated. 

Congress’ enactment of the Railway Labor Act in 1926, 44 Stat. 577, as amended, 45 U.S.C. § 151 et seq., was sustained by a Court decision admitting the connection between interstate commerce and union membership as a substantial one. 

Texas & N.L.R. Co. v. Brotherhood of Railway Clerks, 281 U.S. 548 (1930). A subsequent decision sustained the application of the Act to ‘‘back shop’’ employees of an 

interstate carrier who engaged in making heavy repairs on locomotives and cars 

withdrawn from service for long periods, the Court finding that the activities of 

these employees were related to interstate commerce. Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937). 

which workers could choose exclusive bargaining representatives 

with which employers were required to bargain, and created a 

board to oversee all these processes. 789

The Court, speaking through Chief Justice Hughes, upheld the 

Act and found the corporation to be subject to the Act. ‘‘The close 

and intimate effect,’’ he said, ‘‘which brings the subject within the 

reach of federal power may be due to activities in relation to productive industry although the industry when separately viewed is 

local.’’ Nor will it do to say that such effect is ‘‘indirect.’’ Considering defendant’s ‘‘far-flung activities,’’ the effect of strife between 

it and its employees ‘‘would be immediate and [it] might be catastrophic. We are asked to shut our eyes to the plainest facts of our 

national life and to deal with the question of direct and indirect effects in an intellectual vacuum. . . . When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities, how can it be maintained that their industrial labor relations constitute a forbidden 

field into which Congress may not enter when it is necessary to 

protect interstate commerce from the paralyzing consequences of 

industrial war? We have often said that interstate commerce itself 

is a practical conception. It is equally true that interferences with 

ART. I—LEGISLATIVE DEPARTMENT 201

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

790 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 41–42 (1937). 791 NLRB v. Fruehauf Trailer Co., 301 U.S. 49 (1937); NLRB v. Friedman-Harry 

Marks Clothing Co., 301 U.S. 58 (1937). 792 NLRB v. Fainblatt, 306 U.S. 601, 606 (1939). 793 Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (1953). 794 Journeymen Plumbers’ Union v. County of Door, 359 U.S. 354 (1959). 795 NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963). 796 371 U.S. at 226. See also Guss v. Utah Labor Board, 353 U.S. 1, 3 (1957); 

NLRB v. Fainblatt, 306 U.S. 601, 607 (1939). 797 NLRB v. Reliance Fuel Oil Co., 371 U.S. 224, 225 n.2 (1963); Liner v. Jafco, 

375 U.S. 301, 303 n. 2 (1964). 

that commerce must be appraised by a judgment that does not ignore actual experience.’’ 790

While the Act was thus held to be within the constitutional 

powers of Congress in relation to a productive concern because the 

interruption of its business by strike ‘‘might be catastrophic,’’ the 

decision was forthwith held to apply also to two minor concerns, 791

and in a later case the Court stated specifically that the smallness 

of the volume of commerce affected in any particular case is not a 

material consideration. 792 Subsequently, the act was declared to be 

applicable to a local retail auto dealer on the ground that he was 

an integral part of the manufacturer’s national distribution system, 793 to a labor dispute arising during alteration of a county 

courthouse because one-half of the cost—$225,000—was attributable to materials shipped from out-of-State, 794 and to a dispute 

involving a retail distributor of fuel oil, all of whose sales were 

local, but who obtained the oil from a wholesaler who imported it 

from another State. 795

Indeed, ‘‘[t]his Court has consistently declared that in passing 

the National Labor Relations Act, Congress intended to and did 

vest in the Board the fullest jurisdictional breadth constitutionally 

permissible under the Commerce Clause.’’ 796 Thus, the Board has 

formulated jurisdictional standards which assume the requisite effect on interstate commerce from a prescribed dollar volume of 

business and these standards have been implicitly approved by the 

Court. 797

Fair Labor Standards Act.—In 1938, Congress enacted the 

Fair Labor Standards Act. The measure prohibited not only the 

shipment in interstate commerce of goods manufactured by employees whose wages are less than the prescribed maximum but also 

the employment of workmen in the production of goods for such 

commerce at other than the prescribed wages and hours. Interstate 

commerce was defined by the act to mean ‘‘trade, commerce, transportation, transmission, or communication among the several 

States or from any State to any place outside thereof.’’ 

202 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

798 52 Stat. 1060, as amended, 63 Stat. 910 (1949). The 1949 amendment substituted the phrase ‘‘in any process or occupation directly essential to the production 

thereof in any State’’ for the original phrase ‘‘in any process or occupation necessary 

to the production thereof in any State.’’ In Mitchell v. H. B. Zachry Co., 362 U.S. 

310, 317 (1960), the Court noted that the change ‘‘manifests the view of Congress 

that on occasion courts . . . had found activities to be covered, which . . . [Congress 

now] deemed too remote from commerce or too incidental to it.’’ The 1961 amendments to the Act, 75 Stat. 65, departed from previous practices of extending coverage to employees individually connected to interstate commerce to cover all employees of any ‘‘enterprise’’ engaged in commerce or production of commerce; thus, 

there was an expansion of employees covered but not, of course, of employers, 29 

U.S.C. § 201 et seq. See 29 U.S.C. §§ 203(r), 203(s), 206(a), 207(a). 799 United States v. Darby, 312 U.S. 100, 115 (1941). 800 312 U.S. at 113, 114, 118. 801 312 U.S. at 123–24. 802 E.g., Kirschbaum v. Walling, 316 U.S. 517 (1942) (operating and maintenance employees of building, part of which was rented to business producing goods 

for interstate commerce); Walton v. Southern Package Corp., 320 U.S. 540 (1944) 

It was further provided that ‘‘for the purposes of this act an 

employee shall be deemed to have been engaged in the production 

of goods [that is, for interstate commerce] if such employee was employed . . . in any process or occupation directly essential to the production thereof in any State.’’ 798 Sustaining an indictment under 

the act, a unanimous Court, speaking through Chief Justice Stone, 

said: ‘‘The motive and purpose of the present regulation are plainly 

to make effective the congressional conception of public policy that 

interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor 

conditions, which competition is injurious to the commerce and to 

the States from and to which the commerce flows.’’ 799 In support 

of the decision the Court invoked Chief Justice Marshall’s reading 

of the necessary-and-proper clause in McCulloch v. Maryland and

his reading of the commerce clause in Gibbons v. Ogden. 800 Objections purporting to be based on the Tenth Amendment were met 

from the same point of view: ‘‘Our conclusion is unaffected by the 

Tenth Amendment which 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.’ 

The amendment states but a truism that all is retained which has 

not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and State governments as it had been 

established by the Constitution before the amendment or that its 

purpose was other than to allay fears that the new National Government might seek to exercise powers not granted, and that the 

States might not be able to exercise fully their reserved powers.’’ 801

Subsequent decisions of the Court took a very broad view of 

which employees should be covered by the Act, 802 and in 1949 ConVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00140 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 203

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

(night watchman in a plant the substantial portion of the production of which was 

shipped in interstate commerce); Armour & Co. v. Wantock, 323 U.S. 126 (1944) 

(employees on stand-by auxiliary fire-fighting service of an employer engaged in 

interstate commerce); Borden Co. v. Borella, 325 U.S. 679 (1945) (maintenance employees in building housing company’s central offices where management was located though the production of interstate commerce was elsewhere); Martino v. 

Michigan Window Cleaning Co., 327 U.S. 173 (1946) (employees of a window-cleaning company the principal business of which was performed on windows of industrial plants producing goods for interstate commerce); Mitchell v. Lublin, McGaughy 

& Associates, 358 U.S. 207 (1959) (nonprofessional employees of architectural firm 

working on plans for construction of air bases, bus terminals, and radio facilities). 803 Cf. Mitchell v. H. B. Zachry Co., 362 U.S. 310, 317 (1960). 804 75 Stat. 65. 805 80 Stat. 830. 806 29 U.S.C. §§ 203(r), 203(s). 807 392 U.S. 183 (1968). 808 Another aspect of this case was overruled in National League of Cities v. 

Usery, 426 U.S. 833 (1976), which itself was overruled in Garcia v. San Antonio 

Metropolitan Transit Auth., 469 U.S. 528 (1985). 809 50 Stat. 246, 7 U.S.C. § 601 et seq. 810 315 U.S. 110 (1942). The Court had previously upheld other legislation that 

regulated agricultural production through limitations on sales in or affecting interstate commerce. Currin v. Wallace, 306 U.S. 1 (1939); Mulford v. Smith, 307 U.S. 

38 (1939). 

gress to some degree narrowed the permissible range of coverage 

and disapproved some of the Court’s decisions. 803 But in 1961, 804

with extensions in 1966, 805 Congress itself expanded by several 

million persons the coverage of the Act, introducing the ‘‘enterprise’’ concept by which all employees in a business producing anything in commerce or affecting commerce were brought within the 

protection of the minimum wage-maximum hours standards. 806

The ‘‘enterprise concept’’ was sustained by the Court in Maryland

v. Wirtz. 807 Justice Harlan for a unanimous Court on this issue 

found the extension entirely proper on the basis of two theories: 

one, a business’ competitive position in commerce is determined in 

part by all its significant labor costs, and not just those costs attributable to its employees engaged in production in interstate commerce, and, two, labor peace and thus smooth functioning of interstate commerce was facilitated by the termination of substandard 

labor conditions affecting all employees and not just those actually 

engaged in interstate commerce. 808

Agricultural Marketing Agreement Act.—After its initial 

frustrations, Congress returned to the task of bolstering agriculture 

by passing the Agricultural Marketing Agreement Act of June 3, 

1937, 809 authorizing the Secretary of Agriculture to fix the minimum prices of certain agricultural products, when the handling of 

such products occurs ‘‘in the current of interstate or foreign commerce or . . . directly burdens, obstructs or affects interstate or foreign commerce in such commodity or product thereof.’’ In United

States v. Wrightwood Dairy Co., 810 the Court sustained an order of 

204 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

811 315 U.S. at 118–19. 812 317 U.S. 111 (1942). 813 52 Stat. 31, 7 U.S.C. §§ 612c, 1281–1282 et seq. 

the Secretary of Agriculture fixing the minimum prices to be paid 

to producers of milk in the Chicago ‘‘marketing area.’’ The dairy 

company demurred to the regulation on the ground it applied to 

milk produced and sold intrastate. Sustaining the order, the Court 

said: ‘‘Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce . . . and it possesses every power needed to make that regulation effective. The 

commerce power is not confined in its exercise to the regulation of 

commerce among the States. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the 

power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective 

execution of the granted power to regulate interstate commerce. 

The power of Congress over interstate commerce is plenary and 

complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. . . . It follows that no form of State activity can constitutionally thwart the regulatory power granted by the commerce 

clause to Congress. Hence the reach of that power extends to those 

intrastate activities which in a substantial way interfere with or 

obstruct the exercise of the granted power.’’ 811

In Wickard v. Filburn, 812 a still deeper penetration by Congress into the field of production was sustained. As amended by the 

act of 1941, the Agricultural Adjustment Act of 1938 813 regulated

production even when not intended for commerce but wholly for 

consumption on the producer’s farm. Sustaining this extension of 

the act, the Court pointed out that the effect of the statute was to 

support the market. ‘‘It can hardly be denied that a factor of such 

volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise 

because being in marketable condition such wheat overhangs the 

market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never 

marketed, it supplies a need of the man who grew it which would 

otherwise be reflected by purchases in the open market. Homegrown wheat in this sense competes with wheat in commerce. The 

stimulation of commerce is a use of the regulatory function quite 

as definitely as prohibitions or restrictions thereon. This record 

leaves us in no doubt that Congress may properly have considered 

that wheat consumed on the farm grown, if wholly outside the 

scheme of regulation, would have a substantial effect in defeating 

ART. I—LEGISLATIVE DEPARTMENT 205

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

814 317 U.S. at 128–29. 815 317 U.S. at 120–24. In United States v. Rock Royal Co-operative, 307 U.S. 

533 (1939), the Court sustained an order under the Agricultural Marketing Agreement Act of 1937, 50 Stat. 246, regulating the price of milk in certain instances. 

Said Justice Reed for the majority of the Court: ‘‘The challenge is to the regulation 

‘of the price to be paid upon the sale by a dairy farmer who delivers his milk to 

some country plant.’ It is urged that the sale, a local transaction, is fully completed 

before any interstate commerce begins and that the attempt to fix the price or other 

elements of that incident violates the Tenth Amendment. But where commodities 

are bought for use beyond State lines, the sale is a part of interstate commerce. We 

have likewise held that where sales for interstate transportation were commingled 

with intrastate transactions, the existence of the local activity did not interfere with 

the federal power to regulate inspection of the whole. Activities conducted within 

State lines do not by this fact alone escape the sweep of the Commerce Clause. 

Interstate commerce may be dependent upon them. Power to establish quotas for 

interstate marketing gives power to name quotas for that which is to be left within 

the State of production. Where local and foreign milk alike are drawn into a general 

plan for protecting the interstate commerce in the commodity from the interferences, burdens and obstructions, arising from excessive surplus and the social 

and sanitary evils of low values, the power of the Congress extends also to the local 

sales.’’ Id. at 568–69. 

and obstructing its purpose to stimulate trade therein at increased 

prices.’’ 814 And it elsewhere stated: ‘‘Questions of the power of Congress are not to be decided by reference to any formula which 

would give controlling force to nomenclature such as ‘production’ 

and ‘indirect’ and foreclose consideration of the actual effects of the 

activity in question upon interstate commerce. ... The Court’s recognition of the relevance of the economic effects in the application 

of the Commerce Clause . . . has made the mechanical application 

of legal formulas no longer feasible.’’ 815

Acts of Congress Prohibiting Commerce 

Foreign Commerce: Jefferson’s Embargo.—‘‘Jefferson’s Embargo’’ of 1807–1808, which cut all trade with Europe, was attacked 

on the ground that the power to regulate commerce was the power 

to preserve it, not the power to destroy it. This argument was rejected by Judge Davis of the United States District Court for Massachusetts in the following words: ‘‘A national sovereignty is created [by the Constitution]. Not an unlimited sovereignty, but a sovereignty, as to the objects surrendered and specified, limited only 

by the qualification and restrictions, expressed in the Constitution. 

Commerce is one of those objects. The care, protection, management and control, of this great national concern, is, in my opinion, 

vested by the Constitution, in the Congress of the United States; 

and their power is sovereign, relative to commercial intercourse, 

qualified by the limitations and restrictions, expressed in that instrument, and by the treaty making power of the President and 

Senate. . . . Power to regulate, it is said, cannot be understood to 

give a power to annihilate. To this it may be replied, that the acts 

206 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

816 United States v. The William, 28 Fed. Cas. 614, 620–623 (No. 16,700) (D. 

Mass. 1808). See also Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 191 (1824); United 

States v. Marigold, 50 U.S. (9 How.) 560 (1850). 817 289 U.S. 48 (1933). 

under consideration, though of very ample extent, do not operate 

as a prohibition of all foreign commerce. It will be admitted that 

partial prohibitions are authorized by the expression; and how 

shall the degree, or extent, of the prohibition be adjusted, but by 

the discretion of the National Government, to whom the subject appears to be committed? . . . The term does not necessarily include 

shipping or navigation; much less does it include the fisheries. Yet 

it never has contended, that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them. . . . [Furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and 

are not necessarily confined to its direct aid and advancement, the 

sphere of legislative discretion is, of course, more widely extended; 

and, in time of war, or of great impending peril, it must take a still 

more expanded range.’’ 

‘‘Congress has power to declare war. It, of course, has power 

to prepare for war; and the time, the manner, and the measure, in 

the application of constitutional means, seem to be left to its wisdom and discretion. . . . Under the Confederation, . . . we find an express reservation to the State legislatures of the power to pass prohibitory commercial laws, and, as respects exportations, without 

any limitations. Some of them exercised this power. . . . Unless Congress, by the Constitution, possess the power in question, it still exists in the State legislatures—but this has never been claimed or 

pretended, since the adoption of the Federal Constitution; and the 

exercise of such a power by the States, would be manifestly inconsistent with the power, vested by the people in Congress, ‘to regulate commerce.’ Hence I infer, that the power, reserved to the 

States by the articles of Confederation, is surrendered to Congress, 

by the Constitution; unless we suppose, that, by some strange process, it has been merged or extinguished, and now exists no 

where.’’ 816

Foreign Commerce: Protective Tariffs.—Tariff laws have 

customarily contained prohibitory provisions, and such provisions 

have been sustained by the Court under Congress’ revenue powers 

and under its power to regulate foreign commerce. For the Court 

in Board of Trustees v. United States, 817 in 1933, Chief Justice 

Hughes said: ‘‘The Congress may determine what articles may be 

imported into this country and the terms upon which importation 

is permitted. No one can be said to have a vested right to carry on 

ART. I—LEGISLATIVE DEPARTMENT 207

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

818 289 U.S. at 57, 58. 819 Ch. 270, § 28, 5 Stat. 566. 820 9 Stat. 237 (1848). 821 24 Stat. 409. 822 35 Stat. 614; 38 Stat. 275. 823 29 Stat. 605. 824 192 U.S. 470 (1904). 825 223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947). 826 239 U.S. 325 (1915). 

foreign commerce with the United States. . . . It is true that the taxing power is a distinct power; that it is distinct from the power to 

regulate commerce. . . . It is also true that the taxing power embraces the power to lay duties. Art. I, § 8, cl. 1. But because the 

taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. The contrary is well established. Gibbons v. Ogden, 9 Wheat. 1, 202. ‘Under the power to regulate foreign commerce Congress imposes duties on importations, 

give drawbacks, pass embargo and nonintercourse laws, and make 

all other regulations necessary to navigation, to the safety of passengers, and the protection of property.’ Groves v. Slaughter, 15 

Pet. 449, 505. The laying of duties is ‘a common means of executing 

the power.’’ 2 Story on the Constitution, 1088.’’ 818

Foreign Commerce: Banned Articles.—The forerunners of 

more recent acts excluding objectionable commodities from interstate commerce are the laws forbidding the importation of like commodities from abroad. This power Congress has exercised since 

1842. In that year it forbade the importation of obscene literature 

or pictures from abroad. 819 Six years, later it passed an act ‘‘to prevent the importation of spurious and adulterated drugs’’ and to provide a system of inspection to make the prohibition effective. 820

Such legislation guarding against the importation of noxiously 

adulterated foods, drugs, or liquor has been on the statute books 

ever since. In 1887, the importation by Chinese nationals of smoking opium was prohibited, 821 and subsequent statutes passed in 

1909 and 1914 made it unlawful for anyone to import it. 822 In

1897, Congress forbade the importation of any tea ‘‘inferior in purity, quality, and fitness for consumption’’ as compared with a legal 

standard. 823 The Act was sustained in 1904, in the leading case of 

Buttfield v. Stranahan. 824 In ′′The Abby Dodge′′ an act excluding 

sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained but 

construed as not applying to sponges taken from the territorial 

water of a State. 825

In Weber v. Freed, 826 an act prohibiting the importation and 

interstate transportation of prize-fight films or of pictorial repVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00145 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
208 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

827 239 U.S. at 329. 828 236 U.S. 216 (1915). 829Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 488–489 (1841). 830 312 U.S. 100 (1941). 831The judicial history of the argument may be examined in the majority and 

dissenting opinions in Hammer v. Dagenhart, 247 U.S. 251 (1918), a five-to-four decision, in which the majority held Congress not to be empowered to ban from the 

channels of interstate commerce goods made with child labor, since Congress’ power 

was to prescribe the rule by which commerce was to be carried on and not to prohibit it, except with regard to those things the character of which—diseased cattle, 

lottery tickets—was inherently evil. With the majority opinion, compare Justice

Stone’s unanimous opinion in United States v. Darby, 312 U.S. 100, 112–124 (1941), 

overruling Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Commerce, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 103 (1938). 832 23 Stat. 31. 833 32 Stat. 791. 

resentation of prize fights was upheld. Chief Justice White grounded his opinion for a unanimous Court on the complete and total 

control over foreign commerce possessed by Congress, in contrast 

implicitly to the lesser power over interstate commerce. 827 And in 

Brolan v. United States, 828 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the 

question of Congress’ power to prohibit foreign commerce. It has 

been earlier noted, however, that the purported distinction is one 

that the Court both previously to and subsequent to these opinions 

has rejected. 

Interstate Commerce: Power to Prohibit Questioned.—The

question whether Congress’ power to regulate commerce ‘‘among 

the several States’’ embraced the power to prohibit it furnished the 

topic of one of the most protracted debates in the entire history of 

the Constitution’s interpretation, a debate the final resolution of 

which in favor of congressional power is an event of first importance for the future of American federalism. The issue was as early 

as 1841 brought forward by Henry Clay, in an argument before the 

Court in which he raised the specter of an act of Congress forbidding the interstate slave trade. 829 The debate was concluded ninety-nine years later by the decision in United States v. Darby, 830 in

which the Fair Labor Standards Act was sustained. 831

Interstate Commerce: National Prohibitions and State 

Police Power.—The earliest such acts were in the nature of quarantine regulations and usually dealt solely with interstate transportation. In 1884, the exportation or shipment in interstate commerce of livestock having any infectious disease was forbidden. 832

In 1903, power was conferred upon the Secretary of Agriculture to 

establish regulations to prevent the spread of such diseases 

through foreign or interstate commerce. 833 In 1905, the same official was authorized to lay an absolute embargo or quarantine upon 

ART. I—LEGISLATIVE DEPARTMENT 209

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

834 33 Stat. 1264. 835 33 Stat. 1269. 836 37 Stat. 315. 837 39 Stat. 1165. 838 Illinois Central R.R. v. McKendree, 203 U.S. 514 (1906). See also United

States v. DeWitt, 76 U.S. (9 Wall.) 41 (1870). 839Lottery Case (Champion v. Ames), 188 U.S. 321 (1903). 840 28 Stat. 963. 841 143 U.S. 110 (1892). 

all shipments of cattle from one State to another when the public 

necessity might demand it. 834 A statute passed in 1905 forbade the 

transportation in foreign and interstate commerce and the mails of 

certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation. 835 In 1912, a similar exclusion of diseased nursery stock was decreed, 836 while by the 

same act and again by an act of 1917, 837 the Secretary of Agriculture was invested with powers of quarantine on interstate commerce for the protection of plant life from disease similar to those 

above described for the prevention of the spread of animal disease. 

While the Supreme Court originally held federal quarantine regulations of this sort to be constitutionally inapplicable to intrastate 

shipments of livestock, on the ground that federal authority extends only to foreign and interstate commerce, 838 this view has 

today been abandoned. 

The Lottery Case.—The first case to come before the Court in 

which the issues discussed above were canvassed at all thoroughly 

was Champion v. Ames, 839 involving the act of 1895 ‘‘for the suppression of lotteries.’’ 840 An earlier act excluding lottery tickets 

from the mails had been upheld in the case In re Rapier, 841 on the 

proposition that Congress clearly had the power to see that the 

very facilities furnished by it were not put to bad use. But in the 

case of commerce, the facilities are not ordinarily furnished by the 

National Government, and the right to engage in foreign and interestate commerce comes from the Constitution itself or is anterior 

to it. 

How difficult the Court found the question produced by the act 

of 1895, forbidding any person to bring within the United States 

or to cause to be ‘‘carried from one State to another’’ any lottery 

ticket, or an equivalent thereof, ‘‘for the purpose of disposing of the 

same,’’ was shown by the fact that the case was argued three times 

before the Court and the fact that the Court’s decision finally sustaining the act was a five-to-four decision. The opinion of the 

Court, on the other hand, prepared by Justice Harlan, marked an 

almost unqualified triumph at the time for the view that Congress’ 

power to regulate commerce among the States included the power 

to prohibit it, especially to supplement and support state legislation 

210 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

842 22 U.S. (9 Wheat.) 1, 227 (1824). 843 114 U.S. 622, 630 (1885). 844 Hoke v. United States, 227 U.S. 308, 322 (1913). 845 United States v. Hill, 248 U.S. 420, 425 (1919). 846 267 U.S. 432 (1925). 847 41 Stat. 324 (1919), 18 U.S.C., §§ 2311–2313. 

enacted under the police power. Early in the opinion, extensive 

quotation is made from Chief Justice Marshall’s opinion in Gibbons

v. Ogden, 842 with special stress upon the definition there given of 

the phrase ‘‘to regulate.’’ Justice Johnson’s assertion on the same 

occasion is also given: ‘‘The power of a sovereign State over commerce, . . . amounts to nothing more than a power to limit and restrain it at pleasure.’’ Further along is quoted with evident approval Justice Bradley’s statement in Brown v. Houston, 843 that

‘‘[t]he power to regulate commerce among the several States is 

granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations.’’ 

Following the wake of the Lottery Case, Congress repeatedly 

brought its prohibitory powers over interstate commerce and communications to the support of certain local policies of the States in 

the exercise of their reserved powers, thereby aiding them in the 

repression of a variety of acts and deeds objectionable to public morality. The conception of the Federal System on which the Court 

based its validation of this legislation was stated by it in 1913 in 

sustaining the Mann ‘‘White Slave’’ Act in the following words: 

‘‘Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction . . . but it must be kept 

in mind that we are one people; and the powers reserved to the 

States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral.’’ 844 At the same time, the Court 

made it plain that in prohibiting commerce among the States, Congress was equally free to support state legislative policy or to devise a policy of its own. ‘‘Congress,’’ it said, ‘‘may exercise this authority in aid of the policy of the State, if it sees fit to do so. It 

is equally clear that the policy of Congress acting independently of 

the States may induce legislation without reference to the particular policy or law of any given State. Acting within the authority 

conferred by the Constitution it is for Congress to determine what 

legislation will attain its purpose. The control of Congress over 

interstate commerce is not to be limited by State laws.’’ 845

In Brooks v. United States, 846 the Court sustained the National 

Motor Vehicle Theft Act 847 as a measure protective of owners of 

automobiles; that is, of interests in ‘‘the State of origin.’’ The statute was designed to repress automobile motor thefts, notwithVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00148 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 211

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

848 267 U.S. at 436–39. See also Kentucky Whip & Collar Co. v. I.C.R. Co., 299 

U.S. 334 (1937). 

849 29 U.S.C. §§ 201–219. 

850 United States v. Darby, 312 U.S. 100 (1941). 

851 247 U.S. 251 (1918). 

852 312 U.S. at 116–17. 

standing that such thefts antedate the interstate transportation of 

the article stolen. Speaking for the Court, Chief Justice Taft, at the 

outset, stated the general proposition that ‘‘Congress can certainly 

regulate interstate commerce to the extent of forbidding and punishing the use of such commerce as an agency to promote immorality, dishonesty, or the spread of any evil or harm to the people 

of other States from the State of origin.’’ Noting ‘‘the radical change 

in transportation’’ brought about by the automobile, and the rise of 

‘‘[e]laborately organized conspiracies for the theft of automobiles . . . 

and their sale or other disposition’’ in another jurisdiction from the 

owner’s, the Court concluded that such activity ‘‘is a gross misuse 

of interstate commerce. Congress may properly punish such interstate transportation by anyone with knowledge of the theft, because of its harmful result and its defeat of the property rights of 

those whose machines against their will are taken into other jurisdictions.’’ The fact that stolen vehicles were ‘‘harmless’’ and did not 

spread harm to persons in other States on this occasion was not 

deemed to present any obstacle to the exercise of the regulatory 

power of Congress. 848

The Darby Case.—In sustaining the Fair Labor Standards 

Act 849 in 1941, 850 the Court expressly overruled Hammer v. 

Dagenhart. 851 ‘‘The distinction on which the [latter case] . . . was 

rested that Congressional power to prohibit interstate commerce is 

limited to articles which in themselves have some harmful or deleterious property—a distinction which was novel when made and 

unsupported by any provision of the Constitution—has long since 

been abandoned. . . . The thesis of the opinion that the motive of the 

prohibition or its effect to control in some measure the use or production within the States of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. . . . The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the 

principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled.’’ 852

212 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

853 E.g., Brooks v. United States, 267 U.S. 432, 436–437 (1925); United States 

v. Darby, 312 U.S. 100, 114 (1941). See Cushman, The National Police Power Under 

the Commerce Clause, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 62 (1938). 854 New York v. United States, 505 U.S. 144, 158 (1992). 855 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); Katzenbach v. 

McClung, 379 U.S. 294 (1964); Daniel v. Paul, 395 U.S. 298 (1969). 

The Commerce Clause as a Source of National Police Power 

The Court has several times expressly noted that Congress’ exercise of power under the commerce clause is akin to the police 

power exercised by the States. 853 It should follow, therefore, that 

Congress may achieve results unrelated to purely commercial aspects of commerce, and this result in fact has often been accomplished. Paralleling and contributing to this movement is the virtual disappearance of the distinction between interstate and intrastate commerce. 

Is There an Intrastate Barrier to Congress’ Commerce 

Power.—Not only has there been legislative advancement and judicial acquiescence in commerce clause jurisprudence, but the 

melding of the Nation into one economic union has been more than 

a little responsible for the reach of Congress’ power. ‘‘The volume 

of interstate commerce and the range of commonly accepted objects 

of government regulation have . . . expanded considerably in the 

last 200 years, and the regulatory authority of Congress has expanded along with them. As interstate commerce has become ubiquitous, activities once considered purely local have come to have effects on the national economy, and have accordingly come within 

the scope of Congress’ commerce power.’’ 854

Reviewing the doctrinal developments laid out in the prior 

pages, it is evident that Congress’ commerce power is fueled by 

four very interrelated principles of decision, some old, some of recent vintage. 

First, the commerce power attaches to the crossing of state 

lines, and Congress has validly legislated to protect interstate travelers from harm, to prevent such travelers from being deterred in 

the exercise of interstate traveling, and to prevent them from being 

burdened. Many of the 1964 public accommodations law applications have been premised on the point that larger establishments 

do serve interstate travelers and that even small stores, restaurants, and the like may serve interstate travelers, and, therefore, it is permissible to regulate them to prevent or deter discrimination. 855

Second, it may not be persons who cross state lines but some 

object that will or has crossed state lines, and the regulation of a 

purely intrastate activity may be premised on the presence of the 

ART. I—LEGISLATIVE DEPARTMENT 213

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

856Katzenbach v. McClung, 379 U.S. 294, 298, 300–302 (1964); Daniel v. Paul, 

395 U.S. 298, 305 (1969). 857Scarborough v. United States, 431 U.S. 563 (1977); Barrett v. United States, 

423 U.S. 212 (1976). However, because such laws reach far into the traditional police powers of the States, the Court insists Congress clearly speak to its intent to 

cover such local activities. United States v. Bass, 404 U.S. 336 (1971). See also 

Rewis v. United States, 401 U.S. 808 (1971); United States v. Enmons, 410 U.S. 396 

(1973). A similar tenet of construction has appeared in the Court’s recent treatment 

of federal prosecutions of state officers for official corruption under criminal laws of 

general applicability. E.g., McCormick v. United States, 500 U.S. 257 (1991); 

McNally v. United States, 483 U.S. 350 (1987). Congress has overturned the latter 

case. 102 Stat. 4508, § 7603, 18 U.S.C. § 1346. 858 332 U.S. 689 (1948). 859 332 U.S. at 698–99. 860 317 U.S. 111 (1942). 

object. Thus, the public accommodations law reached small establishments that served food and other items that had been purchased from interstate channels. 856 Congress has validly penalized 

convicted felons, who had no other connection to interstate commerce, for possession or receipt of firearms, which had been previously transported in interstate commerce independently of any 

activity by the two felons. 857 This reach is not of newly-minted origin. In United States v. Sullivan, 858 the Court sustained a conviction of misbranding, under the Federal Food, Drug and Cosmetic 

Act. Sullivan, a Columbus, Georgia, druggist had bought a properly 

labeled 1000–tablet bottle of sulfathiazole from an Atlanta wholesaler. The bottle had been shipped to the Atlanta wholesaler by a 

Chicago supplier six months earlier. Three months after Sullivan 

received the bottle, he made two retail sales of 12 tablets each, 

placing the tablets in boxes not labeled in strict accordance with 

the law. Upholding the conviction, the Court concluded that there 

was no question of ‘‘the constitutional power of Congress under the 

commerce clause to regulate the branding of articles that have 

completed an interstate shipment and are being held for future 

sales in purely local or intrastate commerce.’’ 859

Third, Congress’ power reaches not only transactions or actions 

that occasion the crossing of state or national boundaries but extends as well to activities that, though local, ‘‘affect’’ commerce, a 

combination of the commerce power enhanced by the necessary and 

proper clause. The seminal case, of course, is Wickard v. 

Filburn, 860 sustaining federal regulation of a crop of wheat grown 

on a farm and intended solely for home consumption. The premise 

was that if it were never marketed, it supplied a need otherwise 

to be satisfied only in the market, and that if prices rose it might 

be induced onto the market. ‘‘Even activity that is purely intrastate 

in character may be regulated by Congress, where the activity, 

combined with like conduct by others similarly situated, affects 

214 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

861Fry v. United States, 421 U.S. 542, 547 (1975). 862See Maryland v. Wirtz, 392 U.S. 183, 188–193 (1968). 863 Hodel v. Indiana, 452 U.S. 314, 323–324 (1981). 864 452 U.S. at 324. 865 Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 281 

(1981) (quoting United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)). 866 452 U.S. at 276, 277. The scope of review is restated in Preseault v. ICC, 

494 U.S. 1, 17 (1990). Then-Justice Rehnquist, concurring in the two Hodel cases,

objected that the Court was making it appear that no constitutional limits existed 

under the commerce clause, whereas in fact it was necessary that a regulated activity must have a substantial effect on interstate commerce, not just some effect. He 

thought it a close case that the statutory provisions here met those tests. 452 U.S. 

at 307–313. 867 402 U.S. 146 (1971). 

commerce among the States or with foreign nations.’’ 861 Coverage

under federal labor and wage-and-hour laws after the 1930s 

showed the reality of this doctrine. 862

In upholding federal regulation of strip mining, the Court demonstrated the breadth of the ‘‘affects’’ standard. One case dealt with 

statutory provisions designed to preserve ‘‘prime farmland.’’ The 

trial court had determined that the amount of such land disturbed 

annually amounted to 0.006% of the total prime farmland acreage 

in the Nation and, thus, that the impact on commerce was ‘‘infinitesimal’’ or ‘‘trivial.’’ Disagreeing, the Court said: ‘‘A court may invalidate legislation enacted under the Commerce Clause only if it 

is clear that there is no rational basis for a congressional finding 

that the regulated activity affects interstate commerce, or that 

there is no reasonable connection between the regulatory means selected and the asserted ends.’’ 863 Moreover, ‘‘[t]he pertinent inquiry 

therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects 

interstate commerce.’’ 864 In a companion case, the Court reiterated 

that ‘‘[t]he denomination of an activity as a ‘local’ or ‘intrastate’ activity does not resolve the question whether Congress may regulate 

it under the Commerce Clause. As previously noted, the commerce 

power ‘extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, 

as to make regulation of them appropriate means to the attainment 

of a legitimate end, the effective execution of the granted power to 

regulate interstate commerce.’’’ 865 Judicial review is narrow. Congress’ determination of an ‘‘effect’’ must be deferred to if it is rational, and Congress must have acted reasonably in choosing the 

means. 866

Fourth, a still more potent engine of regulation has been the 

expansion of the class-of-activities standard, which began in the 

‘‘affecting’’ cases. In Perez v. United States, 867 the Court sustained 

the application of a federal ‘‘loan-sharking’’ law to a local culprit. 

ART. I—LEGISLATIVE DEPARTMENT 215

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

868 Russell v. United States, 471 U.S. 858, 862 (1985). In a later case the Court 

avoided the constitutional issue by holding the statute inapplicable to the arson of 

an owner-occupied private residence. 869Summit Health, Ltd. v. Pinhas, 500 U.S. 322 (1991). See also Jones v. United 

States, 529 U.S. 848 (2000)(an owner-occupied building is not ‘‘used’’ in interstate 

commerce within the meaning of the federal arson statute). 870 500 U.S. at 330–32. The decision was 5–to–4, with the dissenters of the view 

that, although Congress could reach the activity, it had not done so. 871 Carter v. Carter Coal Co., 298 U.S. 238 (1936). 872 United States v. Lopez, 514 U.S. 549 (1995). The Court was divided 5–to– 

4, with Chief Justice Rehnquist writing the opinion of the Court, joined by Justices 

O’Connor, Scalia, Kennedy, and Thomas, with dissents by Justices Stevens, Souter, 

Breyer, and Ginsburg. 873 18 U.S.C. § 922(q)(1)(A). Congress subsequently amended the section to make 

the offense jurisdictionally to turn on possession of ‘‘a firearm that has moved in 

The Court held that, although individual loan-sharking activities 

might be intrastate in nature, still it was within Congress’ power 

to determine that the activity was within a class the activities of 

which did affect interstate commerce, thus affording Congress the 

opportunity to regulate the entire class. While the Perez Court and 

the congressional findings emphasized that loan-sharking was generally part of organized crime operating on a national scale and 

that loan-sharking was commonly used to finance organized crime’s 

national operations, subsequent cases do not depend upon a defensible assumption of relatedness in the class. 

Thus, the Court applied the federal arson statute to the attempted ‘‘torching’’ of a defendant’s two-unit apartment building. 

The Court merely pointed to the fact that the rental of real estate 

‘‘unquestionably’’ affects interstate commerce and that ‘‘the local 

rental of an apartment unit is merely an element of a much broader commercial market in real estate.’’ 868 The apparent test of 

whether aggregation of local activity can be said to affect commerce 

was made clear next in an antitrust context. 869 Allowing the continuation of an antitrust suit challenging a hospital’s exclusion of 

a surgeon from practice in the hospital, the Court observed that in 

order to establish the required jurisdictional nexus with commerce, 

the appropriate focus is not on the actual effects of the conspiracy 

but instead is on the possible consequences for the affected market 

if the conspiracy is successful. The required nexus in this case was 

sufficient because competitive significance is to be measured by a 

general evaluation of the impact of the restraint on other participants and potential participants in the market from which the surgeon was being excluded. 870

For the first time in almost sixty years, 871 the Court invalidated a federal law as exceeding Congress’ authority under the 

commerce clause. 872 The statute was a provision making it a federal offense to possess a firearm within 1,000 feet of a school. 873

216 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

or that otherwise affects interstate or foreign commerce.’’ Pub. L. 104–208, 110 Stat. 

3009–370. 874 514 U.S. at 556–57, 559. 875 514 U.S. at 558–59. For a recent example of regulation of persons or things 

in interstate commerce, see Reno v. Condon, 528 U.S. 141 (2000) (information about 

motor vehicles and owners, regulated pursuant to the Driver’s Privacy Protection 

Act, and sold by states and others, is an article of commerce) 876 514 U.S. at 559. 877 514 U.S. at 559–61. 878 514 U.S. at 561. 879 514 U.S. at 563–68. 

The Court reviewed the doctrinal development of the commerce 

clause, especially the effects and aggregation tests, and reaffirmed 

that it is the Court’s responsibility to decide whether a rational 

basis exists for concluding that a regulated activity sufficiently affects interstate commerce when a law is challenged. 874 The Court 

identified three broad categories of activity that Congress may regulate under its commerce power. ‘‘First, Congress may regulate the 

use of the channels of interstate commerce. . . . Second, Congress is 

empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even 

though the threat may come only from intrastate activities. . . . Finally, Congress’ commerce authority includes the power to regulate 

those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate 

commerce.’’ 875

Clearly, said the Court, the criminalized activity did not implicate the first two categories. 876 As for the third, the Court found 

an insufficient connection. First, a wide variety of regulations of 

‘‘intrastate economic activity’’ has been sustained where an activity 

substantially affects interstate commerce. But the statute being 

challenged, the Court continued, was a criminal law that had nothing to do with ‘‘commerce’’ or with ‘‘any sort of economic enterprise.’’ Therefore, it could not be sustained under precedents ‘‘upholding regulations of activities that arise out of or are connected 

with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.’’ 877 The provision did not 

contain a ‘‘jurisdictional element which would ensure, through 

case-by-case inquiry, that the firearm possession in question affects 

interstate commerce.’’ 878 The existence of such a section, the Court 

implied, would have saved the constitutionality of the provision by 

requiring a showing of some connection to commerce in each particular case. Finally, the Court rejected the arguments of the Government and of the dissent that there existed a sufficient connection between the offense and interstate commerce. 879 At base, the 

Court’s concern was that accepting the attenuated connection arguVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00154 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 217

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

880 514 U.S. at 564. 881 ‘‘Not every epochal case has come in epochal trappings.’’ 514 U.S. at 615 

(Justice Souter dissenting) (wondering whether the case is only a misapplication of 

established standards or is a veering in a new direction). 882 529 U.S. 598 (2000). Once again, the Justices were split 5–4, with Chief Justice Rehnquist’s opinion of the Court being joined by Justices O’Connor, Scalia, Kennedy, and Thomas, and with Justices Souter, Stevens, Ginsburg, and Breyer dissenting. 883For an expansive interpretation in the area of economic regulation, decided 

during the same Term as Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 

265 (1995). 884 529 U.S. at 613. 

ments presented would result in the evisceration of federalism. 

‘‘Under the theories that the Government presents . . . it is difficult 

to perceive any limitation on federal power, even in areas such as 

criminal law enforcement or education where States historically 

have been sovereign. Thus, if we were to accept the Government’s 

arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.’’ 880

Whether Lopez bespoke a Court determination to police more 

closely Congress’ exercise of its commerce power, so that it would 

be a noteworthy case, 881 or whether it was rather a ‘‘warning shot’’ 

across the bow of Congress, urging more restraint in the exercise 

of power or more care in the drafting of laws, was not immediately 

clear. The Court’s decision five years later in United States v. Morrison, 882 however, suggests that stricter scrutiny of Congress’s commerce power exercises is the chosen path, at least for legislation 

that falls outside the area of economic regulation. 883 The Court will 

no longer defer, via rational basis review, to every congressional 

finding of substantial effects on interstate commerce, but instead 

will examine the nature of the asserted nexus to commerce, and 

will also consider whether a holding of constitutionality is consistent with its view of the commerce power as being a limited 

power that cannot be allowed to displace all exercise of state police 

powers.

In Morrison the Court applied Lopez principles to invalidate a 

provision of the Violence Against Women Act (VAWA) that created 

a federal cause of action for victims of gender-motivated violence. 

Gender-motivated crimes of violence ‘‘are not, in any sense of the 

phrase, economic activity,’’ 884 the Court explained, and there was 

allegedly no precedent for upholding commerce-power regulation of 

intrastate activity that was not economic in nature. The provision, 

like the invalidated provision of the Gun-Free School Zones Act, 

contained no jurisdictional element tying the regulated violence to 

interstate commerce. Unlike the Gun-Free School Zones Act, the 

VAWA did contain ‘‘numerous’’ congressional findings about the seVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00155 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
218 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

885Dissenting Justice Souter pointed to a ‘‘mountain of data’’ assembled by Congress to show the effects of domestic violence on interstate commerce. 529 U.S. at 

628-30. The Court has evidenced a similar willingness to look behind congressional 

findings purporting to justify exercise of enforcement power under section 5 of the 

Fourteenth Amendment. See discussion under ‘‘enforcement,’’ infra. In Morrison 

itself, the Court determined that congressional findings were insufficient to justify 

the VAWA as an exercise of Fourteenth Amendment power. 529 U.S. at 619-20. 886 529 U.S. at 614. 887 529 U.S. at 615-16. Applying the principle of constitutional doubt, the Court 

in Jones v. United States, 529 U.S. 848 (2000), interpreted the federal arson statute 

as inapplicable to the arson of a private, owner-occupied residence. Were the statute 

interpreted to apply to such residences, the Court noted, ‘‘hardly a building in the 

land would fall outside [its] domain,’’ and the statute’s validity under Lopez would 

be squarely raised. 529 U.S. at 857. 888 529 U.S. at 618. 889 Boynton v. Virginia, 364 U.S. 454 (1960); Henderson v. United States, 339 

U.S. 816 (1950); Mitchell v. United States, 313 U.S. 80 (1941); Morgan v. Virginia, 

328 U.S. 373 (1946). 890 Civil Rights Act of 1964, Title II, 78 Stat. 241, 243, 42 U.S.C. § 2000a et seq. 

rious effects of gender-motivated crimes, 885 but the Court rejected 

reliance on these findings. ‘‘The existence of congressional findings 

is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation. . . . [The issue of constitutionality] is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.’’ 886 The problem with the VAWA 

findings was that they ‘‘relied heavily’’ on the reasoning rejected in 

Lopez – the ‘‘but-for causal chain from the initial occurrence of 

crime . . . to every attenuated effect upon interstate commerce.’’ As 

the Court had explained in Lopez, acceptance of this reasoning 

would eliminate the distinction between what is truly national and 

what is truly local, and would allow Congress to regulate virtually 

any activity, and basically any crime. 887 Accordingly, the Court 

‘‘reject[ed] the argument that Congress may regulate noneconomic, 

violent criminal conduct based solely on that conduct’s aggregate 

effect on interstate commerce.’’ Resurrecting the dual federalism dichotomy, the Court could find ‘‘no better example of the police 

power, which the Founders denied the National Government and 

reposed in the States, than the suppression of violent crime and 

vindication of its victims.’’ 888

Civil Rights.—It had been generally established some time 

ago that Congress had power under the commerce clause to prohibit racial discrimination in the use of the channels of 

commerce. 889 The power under the clause to forbid discrimination 

within the States was firmly and unanimously sustained by the 

Court when Congress in 1964 enacted a comprehensive measure 

outlawing discrimination because of race or color in access to public 

accommodations with a requisite connection to interstate commerce. 890 Hotels and motels were declared covered, that is, deVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00156 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 219

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

891 42 U.S.C. § 2000a (b). 892 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). 893Katzenbach v. McClung, 379 U.S. 294 (1964). 894Daniel v. Paul, 395 U.S. 298 (1969). 895 Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach v. McClung, 379 U.S. 294, 301–304 (1964). 896 Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964). 897 379 U.S. at 252–53; Katzenbach v. McClung, 379 U.S. 294, 299–301 (1964). 

clared to ‘‘affect commerce,’’ if they provided lodging to transient 

guests; restaurants, cafeterias, and the like, were covered only if 

they served or offered to serve interstate travelers or if a substantial portion of the food which they served had moved in commerce. 891 The Court sustained the Act as applied to a downtown 

Atlanta motel which did serve interstate travelers, 892 to an out-ofthe-way restaurant in Birmingham that catered to a local clientele 

but which had spent 46 percent of its previous year’s out-go on 

meat from a local supplier who had procured it from out-of-state, 893

and to a rurally-located amusement area operating a snack bar and 

other facilities, which advertised in a manner likely to attract an 

interstate clientele and that served food a substantial portion of 

which came from outside the State. 894

Writing for the Court in Heart of Atlanta Motel and

McClung, Justice Clark denied that Congress was disabled from 

regulating the operations of motels or restaurants because those 

operations may be, or may appear to be, ‘‘local’’ in character. ‘‘[T]he 

power of Congress to promote interstate commerce also includes 

the power to regulate the local incidents thereof, including local activities in both the States of origin and destination, which might 

have a substantial and harmful effect upon that commerce.’’ 895

But, it was objected, Congress is regulating on the basis of 

moral judgments and not to facilitate commercial intercourse. 

‘‘That Congress [may legislate] . . . against moral wrongs . . . rendered its enactments no less valid. In framing Title II of this Act 

Congress was also dealing with what it considered a moral problem. But that fact does not detract from the overwhelming evidence 

of the disruptive effect that racial discrimination has had on commercial intercourse. It was this burden which empowered Congress 

to enact appropriate legislation, and, given this basis for the exercise of its power, Congress was not restricted by the fact that the 

particular obstruction to interstate commerce with which it was 

dealing was also deemed a moral and social wrong.’’ 896 The evidence did, in fact, noted the Justice, support Congress’ conclusion 

that racial discrimination impeded interstate travel by more than 

20 million black citizens, which was an impairment Congress could 

legislate to remove. 897

220 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

898 Civil Rights Cases, 109 U.S. 3 (1883); United States v. Reese, 92 U.S. 214 

(1876); Collins v. Hardyman, 341 U.S. 651 (1951). 899The ‘‘open housing’’ provision of the 1968 Civil Rights Act, Title VIII, 82 Stat. 

73, 81, 42 U.S.C. § 3601, was based on the commerce clause, but in Jones v. Alfred 

H. Mayer Co., 392 U.S. 409 (1968), the Court held that antidiscrimination-in-housing legislation could be based on the Thirteenth Amendment and made operative 

against private parties. Similarly, the Court has concluded that although § 1 of the 

Fourteenth Amendment is judicially enforceable only against ‘‘state action,’’ Congress is not so limited under its enforcement authorization of § 5. United States v. 

Guest, 383 U.S. 745, 761, 774 (1966) (concurring opinions); Griffin v. Breckenridge, 

403 U.S. 88 (1971). 900 E.g., Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United 

States, 431 U.S. 563 (1977); Lewis v. United States, 445 U.S. 55 (1980); McElroy 

v. United States, 455 U. S. 642 (1982). 901 18 U.S.C. § 2421. 902 18 U.S.C. § 2312. 903 18 U.S.C. § 1201. 904 18 U.S.C. § 1951. And see, 18 U.S.C. § 1952. 

The commerce clause basis for civil rights legislation in respect 

to private discrimination was important because of the understanding that Congress’ power to act under the Fourteenth and Fifteenth Amendments was limited to official discrimination. 898 The

Court’s subsequent determination that Congress is not necessarily 

so limited in its power reduces greatly the importance of the commerce clause in this area. 899

Criminal Law.—Federal criminal jurisdiction based on the 

commerce power, and frequently combined with the postal power, 

has historically been an auxiliary criminal jurisdiction. That is, 

Congress has made federal crimes of acts that constitute state 

crimes on the basis of some contact, however tangential, with a 

matter subject to congressional regulation even though the federal 

interest in the acts may be minimal. 900 Examples of this type of 

federal criminal statute abound, including the Mann Act designed 

to outlaw interstate white slavery, 901 the Dyer Act punishing interstate transportation of stolen automobiles, 902 and the Lindbergh 

Law punishing interstate transportation of kidnapped persons. 903

But, just as in other areas, Congress has passed beyond a proscription of the use of interstate facilities in the commission of a crime, 

it has in the criminal law area expanded the scope of its jurisdiction. Typical of this expansion is a statute making it a federal offense to ‘‘in any way or degree obstruct . . . delay . . . or affect . . . 

commerce . . . by robbery or extortion . . . .’’ 904 With the expansion 

of the scope of the reach of ‘‘commerce’’ the statute potentially 

could reach crimes involving practically all business concerns, although it appears to be used principally against organized crime. 

To date, the most far-reaching measure to be sustained by the 

Court has been the ‘‘loan-sharking’’ prohibition of the Consumer 

ART. I—LEGISLATIVE DEPARTMENT 221

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

905Title II, 82 Stat. 159 (1968), 18 U.S.C. § 891 et seq. 906Perez v. United States, 402 U.S. 146 (1971). See also Russell v. United 

States, 471 U.S. 858 (1985). 907Thus, by Article I, § 10, cl. 2, States are denied the power to ‘‘lay any Imposts or Duties on Imports or Exports’’ except by the consent of Congress. The 

clause applies only to goods imported from or exported to another country, not from 

or to another State, Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869), which prevents its application to interstate commerce, although Chief Justice Marshall 

thought to the contrary, Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 449 (1827), 

and the contrary has been strongly argued. W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 295–323 (1953). 908THE FEDERALIST No. 32 (J. Cooke ed. 1961), 199–203. Note that in connection 

with the discussion that follows, Hamilton avowed that the taxing power of the 

States, save for imposts or duties on imports or exports, ‘‘remains undiminished.’’ 

Id. at 201. The States ‘‘retain [the taxing] authority in the most absolute and unqualified sense[.]’’ Id. at 199. 

Credit Protection Act. 905 The title affirmatively finds that extortionate credit transactions affect interstate commerce because loan 

sharks are in a class largely controlled by organized crime with a 

substantially adverse effect on interstate commerce. Upholding the 

statute, the Court found that though individual loan-sharking activities may be intrastate in nature, still it is within Congress’ 

power to determine that it was within a class the activities of 

which did affect interstate commerce, thus affording Congress 

power to regulate the entire class. 906

THE COMMERCE CLAUSE AS A RESTRAINT ON STATE 

POWERS

Doctrinal Background 

The grant of power to Congress over commerce, unlike that of 

power to levy customs duties, the power to raise armies, and some 

others, is unaccompanied by correlative restrictions on state 

power. 907 This circumstance does not, however, of itself signify that 

the States were expected to participate in the power thus granted 

Congress, subject only to the operation of the supremacy clause. As 

Hamilton pointed out in The Federalist, 908 while some of the powers which are vested in the National Government admit of their 

‘‘concurrent’’ exercise by the States, others are of their very nature 

‘‘exclusive,’’ and hence render the notion of a like power in the 

States ‘‘contradictory and repugnant.’’ As an example of the latter 

kind of power, Hamilton mentioned the power of Congress to pass 

a uniform naturalization law. Was the same principle expected to 

apply to the power over foreign and interstate commerce? 

Unquestionably one of the great advantages anticipated from 

the grant to Congress of power over commerce was that state interferences with trade, which had become a source of sharp discontent 

under the Articles of Confederation, would be thereby brought to 

222 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

909 22 U.S. (9 Wheat.) 1, 11 (1824). Justice Johnson’s assertion, concurring, was 

to the same effect. Id. at 226. Late in life, James Madison stated that the power 

had been granted Congress mainly as ‘‘a negative and preventive provision against 

injustice among the States.’’ 4 LETTERS AND OTHER WRITINGS OF JAMES MADISON 14–15 (1865). 

910 It was evident from THE FEDERALIST that the principal aim of the commerce 

clause was the protection of the national market from the oppressive power of individual States acting to stifle or curb commerce. Id. at No. 7, 39–41 (Hamilton); No. 

11, 65–73 (Hamilton); No. 22, 135–137 (Hamilton); No. 42, 283–284 (Madison); No. 

53, 362–364 (Madison). See H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 533 

(1949). For a comprehensive history of the adoption of the commerce clause, which 

does not indicate a definitive answer to the question posed, see Abel, The Commerce 

Clause in the Constitutional Convention and in Contemporary Comment, 25 MINN.

L. REV. 432 (1941). Professor Abel discovered only nine references in the Convention 

records to the commerce clause, all directed to the dangers of interstate rivalry and 

retaliation. Id. at 470–71 & nn. 169–75. 911The strongest suggestion of exclusivity found in the Convention debates is a 

remark by Madison. ‘‘Whether the States are now restrained from laying tonnage 

duties depends on the extent of the power ‘to regulate commerce.’ These terms are 

vague but seem to exclude this power of the States.’’ 2 M. FARRAND, THE RECORDS

OF THE FEDERAL CONVENTION OF 1787 625 (rev. ed. 1937). However, the statement 

is recorded during debate on the clause, Art. I, § 10, cl. 3, prohibiting States from 

laying tonnage duties. That the Convention adopted this clause, when tonnage duties would certainly be one facet of regulating interstate and foreign commerce, 

casts doubt on the assumption that the commerce power itself was intended to be 

exclusive. 912Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824). 

an end. As Webster stated in his argument for appellant in Gibbons v. Ogden: ‘‘The prevailing motive was to regulate commerce; 

to rescue it from the embarrassing and destructive consequences, 

resulting from the legislation of so many different States, and to 

place it under the protection of a uniform law.’’ 909 In other words, 

the constitutional grant was itself a regulation of commerce in the 

interest of uniformity. 910

That, however, the commerce clause, unimplemented by congressional legislation, took from the States any and all power over 

foreign and interstate commerce was by no means conceded and 

was, indeed, counterintuitive, considering the extent of state regulation that previously existed before the Constitution. 911 Moreover,

legislation by Congress regulative of any particular phase of commerce would raise the question whether the States were entitled to 

fill the remaining gaps, if not by virtue of a ‘‘concurrent’’ power 

over interstate and foreign commerce, then by virtue of ‘‘that immense mass of legislation’’ as Marshall termed it, ‘‘which embraces 

everything within the territory of a State, not surrendered to the 

general government,’’ 912 in a word, the ‘‘police power.’’ 

The text and drafting record of the commerce clause fails, 

therefore, without more ado, to settle the question of what power 

is left to the States to adopt legislation regulating foreign or interstate commerce in greater or lesser measure. To be sure, in cases 

ART. I—LEGISLATIVE DEPARTMENT 223

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

913 22 U.S. at 210–11. 

914The writings detailing the history are voluminous. See, e.g., F. FRANKFURTER, THE COMMERCE CLAUSE UNDER MARSHALL, TANEY, AND WHITE (1937); B. 

GAVIT, THE COMMERCE CLAUSE OF THE UNITED STATES CONSTITUTION (1932) (usefully containing appendices cataloguing every commerce clause decision of the Supreme Court to that time); Sholleys, The Negative Implications of the Commerce 

Clause, 3 U. CHI. L. REV. 556 (1936). Among the recent writings, see Sedler, The

Negative Commerce Clause as a Restriction on State Regulation and Taxation: An 

Analysis in Terms of Constitutional Structure, 31 WAYNE L. REV. 885 (1985) (a disputed conceptualization arguing the Court followed a consistent line over the years), 

and articles cited, id. at 887 n.4. 

915 22 U.S. (9 Wheat.) at 13–14, 16. 

of flat conflict between an act or acts of Congress regulative of such 

commerce and a state legislative act or acts, from whatever state 

power ensuing, the act of Congress is today recognized, and was 

recognized by Marshall, as enjoying an unquestionable supremacy. 913 But suppose, first, that Congress has passed no act, or second, that its legislation does not clearly cover the ground traversed 

by previously enacted state legislation. What rules then apply? 

Since Gibbons v. Ogden, both of these situations have confronted 

the Court, especially as regards interstate commerce, hundreds of 

times, and in meeting them the Court has, first, determined that 

it has power to decide when state power is validly exercised, and, 

second, it has coined or given currency to numerous formulas, some 

of which still guide, even when they do not govern, its judgment. 914

Thus, it has been judicially established that the commerce 

clause is not only a ‘positive’ grant of power to Congress, but it is 

also a ‘negative’ constraint upon the States; that is, the doctrine of 

the ‘dormant’ commerce clause, though what is dormant is the congressional exercise of the power, not the clause itself, under which 

the Court may police state taxation and regulation of interstate 

commerce, became well established. 

Webster, in Gibbons, argued that a state grant of a monopoly 

to operate steamships between New York and New Jersey not only 

contravened federal navigation laws but violated the commerce 

clause as well, because that clause conferred an exclusive power

upon Congress to make the rules for national commerce, although 

he conceded that the grant to regulate interstate commerce was so 

broad as to reach much that the States had formerly had jurisdiction over, the courts must be reasonable in interpretation. 915 But

because he thought the state law was in conflict with the federal 

legislation, Chief Justice Marshall was not compelled to pass on 

Webster’s arguments, although in dicta he indicated his considerable sympathy with them and suggested that the power to regulate 

224 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

916 22 U.S. at 17–18, 209. In Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 

193–196 (1819), Chief Justice Marshall denied that the grant of the bankruptcy 

power to Congress was exclusive. See also Houston v. Moore, 18 U.S. (5 Wheat.) 1 

(1820) (militia). 

917 27 U.S. (2 Pet.) 245, 252 (1829). 

918 53 U.S. (12 How.) 299 (1851). The issue of exclusive federal power and the 

separate issue of the dormant commerce clause was present in the License Cases, 

46 U.S. (5 How.) 504 (1847), and the Passenger Cases, 48 U.S. (7 How.) 283 (1849), 

but, despite the fact that much ink was shed in multiple opinions discussing the 

questions, nothing definitive emerged. Chief Justice Taney, in contrast to Marshall, 

viewed the clause only as a grant of power to Congress, containing no constraint 

upon the States, and the Court’s role was to void state laws in contravention of federal legislation. 46 U.S. (5 How.) at 573; 48 U.S. (7 How.) at 464. 

919 48 U.S. at 317–20. Although Chief Justice Taney had formerly taken the 

strong position that Congress’ power over commerce was not exclusive, he acquiesced silently in the Cooley opinion. For a modern discussion of Cooley, see Goldstein

v. California, 412 U.S. 546, 552–560 (1973), in which, in the context of the copyright 

clause, the Court, approving Cooley for commerce clause purposes, refused to find 

the copyright clause either fully or partially exclusive. 

commerce between the States might be an exclusively federal 

power. 916

Chief Justice Marshall originated the concept of the ‘‘dormant 

commerce clause’’ in Willson v. Black Bird Creek Marsh Co., 917 although in dicta. Attacked before the Court was a state law authorizing the building of a dam across a navigable creek, and it was 

claimed the law was in conflict with the federal power to regulate 

interstate commerce. Rejecting the challenge, Marshall said that 

the state act could not be ‘‘considered as repugnant to the [federal] 

power to regulate commerce in its dormant state[.]’’ 

Returning to the subject in Cooley v. Board of Wardens of Port 

of Philadelphia, 918 the Court, upholding a state law that required 

ships to engage a local pilot when entering or leaving the port of 

Philadelphia, enunciated a doctrine of partial federal exclusivity. 

According to Justice Curtis’ opinion, the state act was valid on the 

basis of a distinction between those subjects of commerce which 

‘‘imperatively demand a single uniform rule’’ operating throughout 

the country and those which ‘‘as imperatively’’ demand ‘‘that diversity which alone can meet the local necessities of navigation,’’ that 

is to say, of commerce. As to the former, the Court held Congress’ 

power to be ‘‘exclusive,’’ as to the latter, it held that the States enjoyed a power of ‘‘concurrent legislation.’’ 919 The Philadelphia pilotage requirement was of the latter kind. 

Thus, the contention that the federal power to regulate interstate commerce was exclusive of state power yielded to a rule of 

partial exclusivity. Among the welter of such cases, the first actually to strike down a state law solely on commerce clause grounds 

ART. I—LEGISLATIVE DEPARTMENT 225

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

920 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 232 (1873). For cases in 

which the commerce clause basis was intermixed with other express or implied powers, see Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1868); Steamship Co. v. 

Portwardens, 73 U.S. (6 Wall.) 31 (1867); Woodruff v. Parham, 75 U.S. (8 Wall.) 123 

(1868). Chief Justice Marshall, in Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 488– 

489 (1827), indicated, in dicta, that a state tax might violate the commerce clause. 921 Just a few years earlier, the Court, in an opinion that merged commerce 

clause and import-export clause analyses, had seemed to suggest that it was a discriminatory tax or law that violates the commerce clause and not simply a tax on 

interstate commerce. Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869). 922 ‘‘Where the subject matter requires a uniform system as between the States, 

the power controlling it is vested exclusively in Congress, and cannot be encroached 

upon by the State.’’ Leisy v. Hardin, 135 U.S. 100, 108–109 (1890). The commerce 

clause ‘‘remains in the Constitution as a grant of power to Congress . . . and as a 

diminution pro tanto of absolute state sovereignty over the same subject matter.’’ 

Carter v. Virginia, 321 U.S. 131, 137 (1944). The commerce clause, the Court has 

celebrated, ‘‘does not say what the states may or may not do in the absence of congressional action, nor how to draw the line between what is and what is not commerce among the states. Perhaps even more than by interpretation of its written 

word, this Court has advanced the solidarity and prosperity of this Nation by the 

meaning it has given these great silences of the Constitution.’’ H. P. Hood & Sons, 

Inc. v. Du Mond, 336 U.S. 525, 534–535 (1949). More recently, the Court has taken 

to stating that ‘‘[t]he Commerce Clause ‘has long been recognized as a self-executing

limitation on the power of the States to enact laws imposing substantial burdens 

on such commerce.’’’ Dennis v. Higgins, 498 U.S. 439, 447 (1991) (quoting SouthCentral Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984) (emphasis supplied). 923 91 U.S. 275 (1875). 

was the State Freight Tax Case. 920 The question before the Court 

was the validity of a nondiscriminatory 921 statute that required 

every company transporting freight within the State, with certain 

exceptions, to pay a tax at specified rates on each ton of freight carried by it. Opining that a tax upon freight, or any other article of 

commerce, transported from State to State is a regulation of commerce among the States and, further, that the transportation of 

merchandise or passengers through a State or from State to State 

was a subject that required uniform regulation, the Court held the 

tax in issue to be repugnant to the commerce clause. 

Whether exclusive or partially exclusive, however, the commerce clause as a restraint upon state exercises of power, absent 

congressional action, received no sustained justification or explanation; the clause, of course, empowers Congress to regulate commerce among the States, not the courts. Often, as in Cooley, and 

later cases, the Court stated or implied that the rule was imposed 

by the commerce clause. 922 In Welton v. Missouri, 923 the Court attempted to suggest a somewhat different justification. Challenged 

was a state statute that required a ‘‘peddler’s’’ license for merchants selling goods that came from other states, but that required 

no license if the goods were produced in the State. Declaring that 

uniformity of commercial regulation is necessary to protect articles 

of commerce from hostile legislation and that the power asserted 

226 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

924 91 U.S. at 282. In Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 33 

(1867), the Court stated that congressional silence with regard to matters of ‘‘local’’ 

concern may signify willingness that the States regulate. Cf. Graves v. New York 

ex rel. O’Keefe, 306 U.S. 466, 479 n.1 (1939). The fullest development of the ‘‘silence’’ rationale was not by the Court but by a renowned academic, Professor 

Dowling. Interstate Commerce and State Power, 29 VA. L. REV. 1 (1940); Interstate

Commerce and State Power—Revisited Version, 47 COLUM. L. REV. 546 (1947). 925Southern Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945). 926 325 U.S. at 769. See also California v. Zook, 336 U.S. 725, 728 (1949). 927 91 U.S. 275, 277, 278, 279, 280, 281, 282 (1876). 928 91 U.S. at 280–81; Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 446 (1827) 

(Chief Justice Marshall); Guy v. City of Baltimore, 100 U.S. 434, 440 (1879); Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 550, 552 (1935); Maryland v. Louisiana, 451 U.S. 

725, 754 (1981). 929 E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 440 (1939); 

McLeod v. J. E. Dilworth Co., 322 U.S. 327, 330–331 (1944); Freeman v. Hewit, 329 

U.S. 249, 252, 256 (1946); H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 538, 

539 (1949); Dennis v. Higgins, 498 U.S. 439, 447–450 (1991). ‘‘[W]e have steadfastly 

adhered to the central tenet that the Commerce Clause ‘by its own force created an 

area of trade free from interference by the States.’’’ American Trucking Ass’ns v. 

Scheiner, 483 U.S. 266, 280 (1987) (quoting Boston Stock Exchange v. State Tax 

Comm’n, 429 U.S. 318, 328 (1977)). 

by the State belonged exclusively to Congress, the Court observed 

that ‘‘[t]he fact that Congress has not seen fit to prescribe any specific rules to govern inter-State commerce does not affect the question. Its inaction on this subject . . . is equivalent to a declaration 

that inter-State commerce shall be free and untrammelled.’’ 924

It has been evidently of little importance to the Court to explain. ‘‘Whether or not this long recognized distribution of power 

between the national and state governments is predicated upon the 

implications of the commerce clause itself . . . or upon the presumed 

intention of Congress, where Congress has not spoken . . . the result 

is the same.’’ 925 Thus, ‘‘[f]or a hundred years it has been accepted 

constitutional doctrine . . . that . . . where Congress has not acted, 

this Court, and not the state legislature, is under the commerce 

clause the final arbiter of the competing demands of state and national interests.’’ 926

Two other justifications can be found throughout the Court’s 

decisions, but they do not explain why the Court is empowered 

under a grant of power to Congress to police state regulatory and 

taxing decisions. For example, in Welton v. Missouri, 927 the statute 

under review, as observed several times by the Court, was clearly 

discriminatory as between instate and interstate commerce, but 

that point was not sharply drawn as the constitutional fault of the 

law. That the commerce clause had been motivated by the Framers’ 

apprehensions about state protectionism has been frequently 

noted. 928 A relatively recent theme is that the Framers desired to 

create a national area of free trade, so that unreasonable burdens 

on interstate commerce violate the clause in and of themselves. 929

ART. I—LEGISLATIVE DEPARTMENT 227

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

930 E.g., Fort Gratiot Sanitary Landfill, Inc. v. Michigan Natural Resources 

Dep’t, 504 U.S. 353, 359 (1992); Quill Corp. v. North Dakota ex rel. Heitkamp, 504 

U.S. 298, 309 (1992); Wyoming v. Oklahoma, 502 U.S. 437, 455 (1992). Indeed, the 

Court, in Dennis v. Higgins, 498 U.S. 439, 447–450 (1991), broadened its construction of the clause, holding that it confers a ‘‘right’’ upon individuals and companies 

to engage in interstate trade. With respect to the exercise of the power, the Court 

has recognized Congress’ greater expertise to act and noted its hesitancy to impose 

uniformity on state taxation. Moorman Mfg. Co. v. Bair, 437 U.S. 267, 280 (1978). 

Cf. Quill Corp., 504 U.S. at 318. 

931 In McCarroll v. Dixie Lines, 309 U.S. 176, 183 (1940), Justice Black, for himself and Justices Frankfurter and Douglas, dissented, taking precisely this view. See

also Adams Mfg. Co. v. Storen, 304 U.S. 307, 316 (1938) (Justice Black dissenting 

in part); Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 442 (1939) (Justice 

Black dissenting); Southern Pacific Co. v. Arizona, 325 U.S. 761, 784 (1945) (Justice 

Black dissenting); id. at 795 (Justice Douglas dissenting). Justices Douglas and 

Frankfurter subsequently wrote and joined opinions applying the dormant commerce clause. In Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 166 

(1954), the Court rejected the urging that it uphold all not-patently discriminatory 

taxes and let Congress deal with conflicts. More recently, Justice Scalia has taken 

the view that, as a matter of original intent, a ‘‘dormant’’ or ‘‘negative’’ commerce 

power cannot be justified in either taxation or regulation cases, but, yielding to the 

force of precedent, he will vote to strike down state actions that discriminate against 

interstate commerce or that are governed by the Court’s precedents, without extending any of those precedents. CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 

94 (1987) (concurring); Tyler Pipe Indus. v. Washington State Dep’t of Revenue, 483 

U.S. 232, 259 (1987) (concurring in part and dissenting in part); Bendix Autolite 

Corp. v. Midwesco Enterprises, 486 U.S. 888, 895 (1988) (concurring in judgment); 

American Trucking Ass’ns, Inc. v. Smith, 496 U.S. 167, 200 (1990) (concurring); Itel 

Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 78 (1993) (Justice Scalia concurring) (reiterating view); Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 

175, 200–01 (1995) (Justice Scalia, with Justice Thomas joining) (same). Justice 

Thomas has written an extensive opinion rejecting both the historical and jurisprudential basis of the dormant commerce clause and expressing a preference for reliance on the imports-exports clause. Camps Newfound/Owatonna, Inc. v. Town of 

Harrison, 520 U.S. 564, 609 (1997) (dissenting; joined by Justice Scalia entirely and 

by Chief Justice Rehnquist as to the commerce clause but not the imports-exports 

clause).

Nonetheless, the power of the Court is established and is freely 

exercised. No reservations can be discerned in the opinions for the 

Court. 930 Individual Justices, to be sure, have urged renunciation 

of the power and remission to Congress for relief sought by litigants. 931 That has not been the course followed. 

The State Proprietary Activity Exception.—In a case of 

first impression, the Court held unaffected by the commerce 

clause— ‘‘the kind of action with which the Commerce Clause is 

not concerned’’—a Maryland bounty scheme by which the State 

paid scrap processors for each ‘‘hulk’’ automobile destroyed. As first 

enacted, the bounty plan did not distinguish between in-state and 

out-of-state processors, but it was subsequently amended to operate 

in such a manner that out-of-state processors were substantially 

disadvantaged. The Court held that where a State enters into the 

market itself as a purchaser, in effect, of a potential article of interstate commerce, it does not, in creating a burden upon that comVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00165 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
228 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

932 Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976). 933 Reeves, Inc. v. Stake, 447 U.S. 429 (1980). 934 447 U.S. at 436–37. 935See also White v. Massachusetts Council of Construction Employers, 460 U.S. 

204 (1983) (city may favor its own residents in construction projects paid for with 

city funds); South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) (illustrating the deep divisions in the Court respecting the scope of the exception). 936 10 Stat. 112, § 6. 937Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. (13 How.) 518 

(1852), statute sustained in Pennsylvania v. Wheeling & Belmont Bridge Co., 59 

U.S. (18 How.) 421 (1856). The latter decision seemed facially contrary to a dictum 

of Justice Curtis in Cooley v. Board of Wardens of Port of Philadelphia, 53 U.S. (12 

How.) 299, 318 (1851), and cf. Tyler Pipe Indus., Inc. v. Washington State Dept. of 

Revenue, 483 U.S. 232, 263 n. 4 (1987) (Justice Scalia concurring in part and dissenting in part), but if indeed the Court is interpreting the silence of Congress as 

a bar to action under the dormant commerce clause, then when Congress speaks it 

is enacting a regulatory authorization for the States to act. 938Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883). 939 In Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 449 (1827), in which the 

‘‘original package’’ doctrine originated in the context of state taxing powers exercised 

on imports from a foreign country, Marshall in dictum indicated the same rule 

would apply to imports from sister States. The Court refused to follow the dictum 

in Woodruff v. Parham, 75 U.S. (8 Wall.) 123 (1869). 

merce by restricting its trade to its own citizens or businesses within the State, violate the commerce clause. 932

Affirming and extending somewhat this precedent, the Court 

held that a State operating a cement plant could in times of shortage (and presumably at any time) confine the sale of cement by the 

plant to residents of the State. 933 ‘‘The Commerce Clause responds 

principally to state taxes and regulatory measures impeding free 

private trade in the national marketplace. ... There is no indication 

of a constitutional plan to limit the ability of the States themselves 

to operate freely in the free market.’’ 934 It is yet unclear how far 

this concept of the State as market participant rather than market 

regulator will be extended. 935

Congressional Authorization of Impermissible State Action.—The Supreme Court has heeded the lesson that was administered to it by the Act of Congress of August 31, 1852, 936 which

pronounced the Wheeling Bridge ‘‘a lawful structure,’’ thereby setting aside the Court’s determination to the contrary earlier the 

same year. 937 The lesson, subsequently observed the Court, is that 

‘‘[i]t is Congress, and not the Judicial Department, to which the 

Constitution has given the power to regulate commerce.’’ 938 Similarly, when in the late eighties and the early nineties statewide 

prohibition laws began making their appearance, Congress again 

approved state laws the Court had found to violate the dormant 

commerce clause. 

The Court seized upon a previously rejected dictum of Chief 

Justice Marshall 939 and began applying it as a brake on the operVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00166 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 229

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

940Mugler v. Kansas, 123 U.S. 623 (1887). 941Kidd v. Pearson, 128 U.S. 1 (1888). 942 125 U.S. 465 (1888). 943Leisy v. Hardin, 135 U.S. 100 (1890). 944 26 Stat. 313 (1890), sustained in, In re Rahrer, 140 U.S. 545 (1891). 945 Rhodes v. Iowa, 170 U.S. 412 (1898). 946 37 Stat. 699 (1913), sustained in James Clark Distilling Co. v. Western Md. 

Ry., 242 U.S. 311 (1917). See also Department of Revenue v. Beam Distillers, 377 

U.S. 341 (1964). 947 National Prohibition, under the Eighteenth Amendment, first cast these conflicts into the shadows, and § 2 of the Twenty-first Amendment significantly altered 

the terms of the dispute. But that section is no authorization for the States to engage in mere economic protectionism separate from concerns about the effect of the 

traffic in liquor. Bacchus Imports Ltd. v. Dias, 468 U.S. 263 (1984); Brown-Forman 

Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986); Healy v. The 

Beer Institute, 491 U.S. 324 (1989). 948 322 U.S. 533 (1944). 949 59 Stat. 33, 15 U.S.C. § 1011–15. 

ation of such laws with respect to interstate commerce in intoxicants, which the Court denominated ‘‘legitimate articles of commerce.’’ While holding that a State was entitled to prohibit the 

manufacture and sale within its limits of intoxicants, 940 even for 

an outside market, manufacture being no part of commerce, 941 it

contemporaneously laid down the rule, in Bowman v. Chicago & 

Northwestern Ry. Co., 942 that, so long as Congress remained silent 

in the matter, a State lacked the power, even as part and parcel 

of a program of statewide prohibition of the traffic in intoxicants, 

to prevent the shipment into it of intoxicants from a sister State. 

This holding was soon followed by another to the effect that, so 

long as Congress remained silent, a State had no power to prevent 

the sale in the original package of liquors introduced from another 

State. 943 The effect of the latter decision was soon overcome by an 

act of Congress, the so-called Wilson Act, repealing its alleged silence, 944 but the Bowman decision still stood, the act in question 

being interpreted by the Court not to subject liquors from sister 

States to local authority until their arrival in the hands of the person to whom consigned. 945 Not until 1913 was the effect of the decision in the Bowman case fully nullified by the Webb-Kenyon 

Act, 946 which placed intoxicants entering a State from another 

State under the control of the former for all purposes whatsoever. 947

Less than a year after the ruling in United States v. SouthEastern Underwriters Ass’n, 948 that insurance transactions across 

state lines constituted interstate commerce, thereby logically establishing their immunity from discriminatory state taxation, Congress passed the McCarran Act 949 authorizing state regulation and 

taxation of the insurance business. In Prudential Ins. Co. v. BenVerDate Aug<04>2004 15:31 Sep 14, 2004 Jkt 077500 PO 00000 Frm 00167 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
230 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

950 328 U.S. 408 (1946). 951 328 U.S. at 429–30, 434–35. The Act restored state taxing and regulatory 

powers over the insurance business to their scope prior to South-Eastern Underwriters. Discriminatory state taxation otherwise cognizable under the commerce 

clause must, therefore, be challenged under other provisions of the Constitution. 

See Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648 

(1981). An equal protection challenge was successful in Metropolitan Life Ins. Co. 

v. Ward, 470 U.S. 869 (1985), invalidating a discriminatory tax and stating that a 

favoring of local industries ‘‘constitutes the very sort of parochial discrimination that 

the Equal Protection Clause was intended to prevent.’’ Id. at 878. Controversial 

when rendered, Ward may be a sport in the law. See Northeast Bancorp v. Board 

of Governors of the Federal Reserve System, 472 U.S. 159, 176–178 (1985). 952 Northeast Bancorp v. Board of Governors of the Federal Reserve System, 472 

U.S. 159, 174 (1985) (interpreting a provision of the Bank Holding Company Act, 

12 U.S.C. § 1842(d), permitting regional interstate bank acquisitions expressly approved by the State in which the acquired bank is located, as authorizing state laws 

jamin, 950 a statute of South Carolina that imposed on foreign insurance companies, as a condition of their doing business in the 

State, an annual tax of three percent of premiums from business 

done in South Carolina, while imposing no similar tax on local corporations, was sustained. ‘‘Obviously,’’ said Justice Rutledge for the 

Court, ‘‘Congress’ purpose was broadly to give support to the existing and future State systems for regulating and taxing the business of insurance. This was done in two ways:’’ 

‘‘One was by removing obstructions which might be thought to 

flow from its own power, whether dormant or exercised, except as 

otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that 

continued State regulation and taxation of this business is in the 

public interest and that the business and all who engage in it ‘shall 

be subject to’ the laws of the several States in these respects. . . . 

The power of Congress over commerce exercised entirely without 

reference to coordinated action of the States is not restricted, except as the Constitution expressly provides, by any limitation 

which forbids it to discriminate against interstate commerce and in 

favor of local trade. Its plenary scope enables Congress not only to 

promote but also to prohibit interstate commerce, as it has done 

frequently and for a great variety of reasons. . . . This broad authority Congress may exercise alone, subject to those limitations, or in 

conjunction with coordinated action by the States, in which case 

limitations imposed for the preservation of their powers become inoperative and only those designed to forbid action altogether by 

any power or combination of powers in our governmental system 

remain effective.’’ 951

Thus, it is now well established that ‘‘[w]hen Congress so 

chooses, state actions which it plainly authorizes are invulnerable 

to constitutional attack under the Commerce Clause.’’ 952 But the 

ART. I—LEGISLATIVE DEPARTMENT 231

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

that allow only banks within the particular region to acquire an in-state bank, on 

a reciprocal basis, since what the States could do entirely they can do in part). 953South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 90 (1984). 954 467 U.S. at 92. Earlier cases had required express statutory sanction of state 

burdens on commerce but under circumstances arguably less suggestive of congressional approval. E.g., Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941, 958–960 

(1982) (congressional deference to state water law in 37 statutes and numerous 

interstate compacts did not indicate congressional sanction for invalid state laws 

imposing a burden on commerce); New England Power Co. v. New Hampshire, 455 

U.S. 331, 341 (1982) (disclaimer in Federal Power Act of intent to deprive a State 

of ‘‘lawful authority’’ over interstate transmissions held not to evince a congressional 

intent ‘‘to alter the limits of state power otherwise imposed by the Commerce 

Clause’’). But see White v. Massachusetts Council of Construction Employers, 460 

U.S. 204 (1983) (Congress held to have sanctioned municipality’s favoritism of city 

residents through funding statute under which construction funds were received). 955Maine v. Taylor, 477 U.S. 131 (1986) (holding that Lacey Act’s reinforcement 

of state bans on importation of fish and wildlife neither authorizes state law otherwise invalid under the Clause nor shifts analysis from the presumption of invalidity 

for discriminatory laws to the balancing test for state laws that burden commerce 

only incidentally). 956 Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457– 

458 (1959) (in part quoting Miller Bros. v. Maryland, 347 U.S. 340, 344 (1954)). Justice Frankfurter was similarly skeptical of definitive statements. ‘‘To attempt to harmonize all that has been said in the past would neither clarify what has gone before 

nor guide the future. Suffice it to say that especially in this field opinions must be 

read in the setting of the particular cases and as the product pf preoccupation with 

Court requires congressional intent to permit otherwise impermissible state actions to ‘‘be unmistakably clear.’’ 953 The fact that federal statutes and regulations had restricted commerce in timber 

harvested from national forest lands in Alaska was, therefore, ‘‘insufficient indicium’’ that Congress intended to authorize the State 

to apply a similar policy for timber harvested from state lands. The 

rule requiring clear congressional approval for state burdens on 

commerce was said to be necessary in order to strengthen the likelihood that decisions favoring one section of the country over another are in fact ‘‘collective decisions’’ made by Congress rather 

than unilateral choices imposed on unrepresented out-of-state interests by individual States. 954 And Congress must be plain as well 

when the issue is not whether it has exempted a state action from 

the commerce clause but whether it has taken the less direct form 

of reduction in the level of scrutiny. 955

State Taxation and Regulation: The Old Law 

Although in previous editions of this volume considerable attention was paid to the development and circuitous paths of the 

law of the negative commerce clause, the value of this exegesis was 

doubtlessly quite limited. The Court itself has admitted that its 

‘‘some three hundred full-dress opinions’’ as of 1959 have not resulted in ‘‘consistent or reconcilable’’ doctrine but rather in something more resembling a ‘‘quagmire.’’ 956 Although many of the prinVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00169 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
232 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

their special facts.’’ Freeman v. Hewit, 329 U.S. 249, 251–252 (1946). The comments 

in all three cases dealt with taxation, but they could just as well have included regulation. 957 Infra pp. 240–42. 958 In addition to the sources previously cited, see J. HELLERSTEIN & W. 

HELLERSTEIN, STATE AND LOCAL TAXATION—CASES AND MATERIALS ch. 6, 241 (5th 

ed. 1988) passim. For a succinct description of the history, see Hellerstein, State

Taxation of Interstate Business: Perspectives on Two Centuries of Constitutional Adjudication, 41 TAX LAW. 37 (1987). 959 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 232 (1873). 960 82 U.S. at 275. 961 82 U.S. at 275–76, 279. 

ciples still applicable in constitutional law may be found in the 

older cases, in fact the Court has worked a revolution in this area, 

though at different times for taxation and for regulation. Thus, in 

this section we summarize the ‘‘old’’ law and then deal more fully 

with the ‘‘modern’’ law of the negative commerce clause. 

General Considerations.—The task of drawing the line between state power and the commercial interest has proved a comparatively simple one in the field of foreign commerce, the two 

things being in great part territorially distinct. 957 With ‘‘commerce 

among the States’’ affairs are very different. Interstate commerce 

is conducted in the interior of the country, by persons and corporations that are ordinarily engaged also in local business; its usual 

incidents are acts that, if unconnected with commerce among the 

States, would fall within the State’s powers of police and taxation, 

while the things it deals in and the instruments by which it is carried on comprise the most ordinary subject matter of state power. 

In this field, the Court consequently has been unable to rely upon 

sweeping solutions. To the contrary, its judgments have often been 

fluctuating and tentative, even contradictory, and this is particularly the case with respect to the infringement of interstate commerce by the state taxing power. 958

Taxation.—The leading case dealing with the relation of the 

States’ taxing power to interstate commerce, the case in which the 

Court first struck down a state tax as violative of the commerce 

clause, was the State Freight Tax Case. 959 Before the Court was 

the validity of a Pennsylvania statute that required every company 

transporting freight within the State, with certain exceptions, to 

pay a tax at specified rates on each ton of freight carried by it. The 

Court’s reasoning was forthright. Transportation of freight constitutes commerce. 960 A tax upon freight transported from one 

State to another effects a regulation of interstate commerce. 961

Under the Cooley doctrine, whenever the subject of a regulation of 

commerce is in its nature of national interest or admits of one uniform system or plan of regulation, that subject is within the excluVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00170 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 233

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

962 82 U.S. at 279–80. 963 82 U.S. at 280. 964 82 U.S. at 281–82. 965 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 284 (1872). 966 82 U.S. at 293. 967 82 U.S. at 294. This case was overruled 14 years later, when the Court voided substantially the same tax in Philadelphia Steamship Co. v. Pennsylvania, 122 

U.S. 326 (1887). 

sive regulating control of Congress. 962 Transportation of passengers 

or merchandise through a State, or from one State to another, is 

of this nature. 963 Hence, a state law imposing a tax upon freight, 

taken up within the State and transported out of it or taken up 

outside the State and transported into it, violates the commerce 

clause. 964

The principle thus asserted, that a State may not tax interstate commerce, confronted the principle that a State may tax all 

purely domestic business within its borders and all property ‘‘within its jurisdiction.’’ Inasmuch as most large concerns prosecute both 

an interstate and a domestic business, while the instrumentalities 

of interstate commerce and the pecuniary returns from such commerce are ordinarily property within the jurisdiction of some State 

or other, the task before the Court was to determine where to draw 

the line between the immunity claimed by interstate business, on 

the one hand, and the prerogatives claimed by local power on the 

other. In the State Tax on Railway Gross Receipts Case, 965 decided

the same day as the State Freight Tax Case, the issue was a tax 

upon gross receipts of all railroads chartered by the State, part of 

the receipts having been derived from interstate transportation of 

the same freight that had been held immune from tax in the first 

case. If the latter tax were regarded as a tax on interstate commerce, it too would fall. But to the Court, the tax on gross receipts 

of an interstate transportation company was not a tax on commerce. ‘‘[I]t is not everything that affects commerce that amounts 

to a regulation of it, within the meaning of the Constitution.’’ 966 A

gross receipts tax upon a railroad company, which concededly affected commerce, was not a regulation ‘‘directly. Very manifestly it 

is a tax upon the railroad company. . . . That its ultimate effect may 

be to increase the cost of transportation must be admitted. . . . Still

it is not a tax upon transportation, or upon commerce. . . .’’ 967

Insofar as there is a distinction between these two cases, the 

Court drew it in part on the basis of Cooley, that some subjects embraced within the meaning of commerce demand uniform, national 

regulation, while other similar subjects permit of diversity of treatment, until Congress acts, and in part on the basis of a concept of 

a ‘‘direct’’ tax on interstate commerce, which was impermissible, 

234 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

968See The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 398–412 

(1913) (reviewing and summarizing at length both taxation and regulation cases). 

See also Missouri ex rel. Barrett v. Kansas Natural Gas Co., 265 U.S. 298, 307 

(1924). 969 Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 497 (1887); Leloup v. 

Port of Mobile, 127 U.S. 640, 648 (1888). 970The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 400–401 

(1913). 971The Delaware R.R. Tax, 85 U.S. (18 Wall.) 206, 232 (1873). See Cleveland,

Cincinnati, Chicago & St. Louis Ry. Co. v. Backus, 154 U.S. 439 (1894); Postal Telegraph Cable Co. v. Adams, 155 U.S. 688 (1895). See cases cited in J. HELLERSTEIN

& W. HELLERSTEIN, supra n. 891, at 215–219. 972 E.g., Welton v. Missouri, 91 U.S. 275 (1875); Robbins v. Shelby County Taxing District, 120 U.S. 489 (1887); Darnell & Son Co. v. City of Memphis, 208 U.S. 

113 (1908); Bethlehem Motors Corp. v. Flynt, 256 U.S. 421 (1921). 

and an ‘‘indirect’’ tax, which was permissible until Congress 

acted. 968 Confusingly, the two concepts were sometimes conflated, 

sometimes treated separately. In any event, the Court itself was 

clear that interstate commerce could not be taxed at all, even if the 

tax was a nondiscriminatory levy applied alike to local commerce. 969 ‘‘Thus, the States cannot tax interstate commerce, either 

by laying the tax upon the business which constitutes such commerce or the privilege of engaging in it, or upon the receipts, as 

such, derived from it . . . ; or upon persons or property in transit 

in interstate commerce.’’ 970 However, some taxes imposed only an 

‘‘indirect’’ burden and were sustained; property taxes and taxes in 

lieu of property taxes applied to all businesses, including 

instrumentalies of interstate commerce, were sustained. 971 A good 

rule of thumb in these cases is that taxation was sustained if the 

tax was imposed on some local, rather than an interstate, activity 

or if the tax was exacted before interstate movement had begun or 

after it had ended. 

An independent basis for invalidation was that the tax was 

discriminatory, that its impact was intentionally or unintentionally 

felt by interstate commerce and not by local, perhaps in pursuit of 

parochial interests. Many of the early cases actually involving discriminatory taxation were decided on the basis of the impermissibility of taxing interstate commerce at all, but the category was 

soon clearly delineated as a separate ground (and one of the most 

important today). 972

Following the Great Depression and under the leadership of 

Justice, and later Chief Justice, Stone, the Court attempted to 

move away from the principle that interstate commerce may not be 

taxed and reliance on the direct-indirect distinction. Instead, a 

state or local levy would be voided only if in the opinion of the 

Court it created a risk of multiple taxation for interstate commerce 

ART. I—LEGISLATIVE DEPARTMENT 235

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

973Western Live Stock v. Bureau of Revenue, 303 U.S. 250 (1938); McGoldrick 

v. Berwind-White Coal Mining Co., 309 U.S. 33 (1940); International Harvester Co. 

v. Department of Treasury, 322 U.S. 340 (1944); International Harvester Co. v. 

Evatt, 329 U.S. 416 (1947). 

974 E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434 (1939); Joseph 

v. Carter & Weekes Stevedoring Co., 330 U.S. 422 (1947); Central Greyhound Lines 

v. Mealey, 334 U.S. 653 (1948). Notice the Court’s distinguishing of Central Greyhound in Oklahoma Tax Comm’n v. Jefferson Lines, 514 U.S. 175, 188–91 (1995). 

975Freeman v. Hewit, 329 U.S. 249 (1946); Spector Motor Service v. O’Connor, 

340 U.S. 602 (1951). 

976Thus, the States carefully phrased tax laws so as to impose on interstate 

companies not a license tax for doing business in the State, which was not permitted, Railway Express Agency v. Virginia, 347 U.S. 359 (1954), but as a franchise 

tax on intangible property or the privilege of doing business in a corporate form, 

which was permissible. Railway Express Agency v. Virginia, 358 U.S. 434 (1959); 

Colonial Pipeline Co. v. Traigle, 421 U.S. 100 (1975). Also, the Court increasingly 

found the tax to be imposed on a local activity in instances it would previously have 

seen to be an interstate activity. E.g., Memphis Natural Gas Co. v. Stone, 335 U.S. 

80 (1948); General Motors Corp. v. Washington, 377 U.S. 436 (1964); Standard 

Pressed Steel Co. v. Department of Revenue, 419 U.S. 560 (1975). 

977Sedler, The Negative Commerce Clause as a Restriction on State Regulation 

and Taxation: An Analysis in Terms of Constitutional Structure, 31 WAYNE L.

REV. 885, 924–925 (1985). In addition to the sources already cited, see the Court’s 

summaries in The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 398– 

412 (1913), and Southern Pacific Co. v. Arizona, 325 U.S. 761, 766–770 (1945). In 

the latter case, Chief Justice Stone was reconceptualizing the standards under the 

clause, but the summary represents a faithful recitation of the law. 

not felt by local commerce. 973 It became much more important to 

the validity of a tax that it be apportioned to an interstate company’s activities within the taxing State, so as to reduce the risk 

of multiple taxation. 974 But, just as the Court had achieved constancy in the area of regulation, it reverted to the older doctrines 

in the taxation area and reiterated that interstate commerce may 

not be taxed at all, even by a properly apportioned levy, and reasserted the direct-indirect distinction. 975 The stage was set, following a series of cases in which through formalistic reasoning the 

States were permitted to evade the Court’s precedents, 976 for the 

formulation of a more realistic doctrine. 

Regulation.—Much more diverse were the cases dealing with 

regulation by the state and local governments. Taxation was one 

thing, the myriad approaches and purposes of regulations another. 

Generally speaking, if the state action was perceived by the Court 

to be a regulation of interstate commerce itself, it was deemed to 

impose a ‘‘direct’’ burden on interstate commerce and impermissible. If the Court saw it as something other than a regulation of 

interstate commerce, it was considered only to ‘‘affect’’ interstate 

commerce or to impose only an ‘‘indirect’’ burden on it in the proper 

exercise of the police powers of the States. 977 But the distinction 

236 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

978See DiSanto v. Pennsylvania, 273 U.S. 34, 44 (1927) (Justice Stone dissenting). The dissent was the precurser to Chief Jusdtice Stone’s reformulation of 

the standard in 1945. DiSanto was overruled in California v. Thompson, 313 U.S. 

109 (1941). 

979 Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519 (1839); Hanover Fire Ins. 

Co. v. Harding, 272 U.S. 494 (1926); Union Brokerage Co. v. Jensen, 322 U.S. 202 

(1944).

980 Crutcher v. Kentucky, 141 U.S. 47 (1891); International Textbook Co. v. Pigg, 

217 U.S. 91 (1910). 

981Dahnke-Walker Co. v. Bondurant, 257 U.S. 282 (1921); Allenberg Cotton Co. 

v. Pittman, 419 U.S. 20 (1974). But see Eli Lilly & Co. v. Sav-on Drugs, 366 U.S. 

276 (1961). 

982Wabash, S. L. & P. Ry. v. Illinois, 118 U.S. 557 (1886). The power of the 

States generally to set rates had been approved in Chicago, B. & Q. R.R. v. Iowa, 

94 U.S. 155 (1877), and Peik v. Chicago & N. W. Ry., 94 U.S. 164 (1877). After the 

Wabash decision, States retained power to set rates for passengers and freight taken 

up and put down within their borders. Wisconsin R.R. Comm’n v. Chicago, B. & Q. 

R.R., 257 U.S. 563 (1922). 

983Generally, the Court drew the line at regulations that provided for adequate 

service, not any and all service. Thus, one class of cases dealt with requirements 

that trains stop at designated cities and towns. The regulations were upheld in such 

cases as Gladson v. Minnesota, 166 U.S. 142 (1897), and Lake Shore & Mich. South. 

Ry. v. Ohio, 173 U.S. 285 (1899), and invalidated in Illinois Central R. R. v. Illinois, 

142 (1896). See Chicago, B. & Q. R.R. v. Wisconsin R.R. Comm’n, 237 U.S. 220, 226 

(1915); St. Louis & S. F. Ry. v. Public Service Comm’n, 254 U.S. 535, 536–537 

(1921). The cases were extremely fact particularistic. 

between ‘‘direct’’ and ‘‘indirect’’ burdens was often perceptible only 

to the Court. 978

A corporation’s status as a foreign entity did not immunize it 

from state requirements, conditioning its admission to do a local 

business, to obtain a local license, and to furnish relevant information as well as to pay a reasonable fee. 979 But no registration was 

permitted of an out-of-state corporation, the business of which in 

the host State was purely interstate in character. 980 Neither did 

the Court permit a State to exclude from the its courts a corporation engaging solely in interstate commerce because of a failure to 

register and to qualify to do business in that State. 981

Interstate transportation brought forth hundreds of cases. 

State regulation of trains operating across state lines resulted in 

divergent rulings. It was early held improper for States to prescribe 

charges for transportation of persons and freight on the basis that 

the regulation must be uniform and thus could not be left to the 

States. 982 The Court deemed ‘‘reasonable’’ and therefore constitutional many state regulations requiring a fair and adequate service 

for its inhabitants by railway companies conducting interstate service within its borders, as long as there was no unnecessary burden 

on commerce. 983 A marked tolerance for a class of regulations that 

arguably furthered public safety was long exhibited by the 

ART. I—LEGISLATIVE DEPARTMENT 237

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

984 E.g., Smith v. Alabama, 124 U.S. 465 (1888) (required locomotive engineers 

to be examined and licensed by the State, until Congress should deem otherwise); 

New York, N. H. & H. R.R. v. New York, 165 U.S. 628 (1897) (fobidding heating 

of passenger cars by stoves); Chicago, R. I. & Pac. Ry. v. Arkansas, 219 U.S. 453 

(1911) (requiring three brakemen on freight trains of more than 25 cars). 985 E.g., Terminal Ass’n v. Trainmen, 318 U.S. 1 (1943) (requiring railroad to 

provide caboose cars for its employees); Hennington v. Georgia, 163 U.S. 299 (1896) 

(forbidding freight trains to run on Sundays). But see Seaboard Air Line Ry. v. 

Blackwell, 244 U.S. 310 (1917) (voiding as too onerous on interstate transportation 

law requiring trains to come to almost a complete stop at all grade crossings, when 

there were 124 highway crossings at grade in 123 miles, doubling the running time). 986Four cases over a lengthy period sustained the laws. Chicago, R. I. & Pac. 

Ry. Co. v. Arkansas, 219 U.S. 453 (1911); St. Louis, Iron Mt. & S. Ry. v. Arkansas, 

240 U.S. 518 (1916); Missouri Pacific Co. v. Norwood, 283 U.S. 249 (1931); Brotherhood of Locomotive Firemen & Enginemen v. Chicago, R. I. & P. R.R., 382 U.S. 423 

(1966). In the latter case, the Court noted the extensive and conflicting record with 

regard to safety, but it then ruled that with the issue in so much doubt it was peculiarly a legislative choice. 987 Hendrick v. Maryland, 235 U.S. 610 (1915); Kane v. New Jersey, 242 U.S. 

160 (1916). 988 E.g., Bradley v. Public Utility Comm’n, 289 U.S. 92 (1933) (State could deny 

an interstate firm a necessary certificate of convenience to operate as a common carrier on the basis that the route was overcrowded); Welch Co. v. New Hampshire, 

306 U.S. 79 (1939) (maximum hours for drivers of motor vehicles); Eichholz v. Public 

Service Comm’n, 306 U.S. 268 (1939) (reasonable regulations of traffic). But compare Michigan Comm’n v. Duke, 266 U.S. 570 (1925) (State may not impose common-carrier responsibilities on business operating between States that did not assume them); Buck v. Kuykendall, 267 U.S. 307 (1925) (denial of certificate of convenience under circumstances was a ban on competition). 989 E.g., Mauer v. Hamilton, 309 U.S. 598 (1940) (ban on oiperation of any motor 

vehicle carrying any other vehicle above the head of the operator). By far, the example of the greatest deference is South Carolina Highway Dep’t v. Barnwell Bros., 303 

U.S. 177 (1938), in which the Court upheld, in a surprising Stone opinion, truck 

weight and width restrictions prescribed by practically no other State (in terms of 

the width, no other). 990 E.g., Transportation Co. v. City of Chicago, 99 U.S. 635 (1879); Willamette 

Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888). See Kelly v. Washington, 302 U.S. 1 

Court, 984 even in instances in which the safety connection was tenuous. 985 Of particular controversy were ‘‘full-crew’’ laws, represented as safety measures, that were attacked by the companies 

as ‘‘feather-bedding’’ rules. 986

Similarly, motor vehicle regulations have met mixed fates. Basically, it has always been recognized that States, in the interest 

of public safety and conservation of public highways, may enact 

and enforce comprehensive licensing and regulation of motor vehicles using its facilities. 987 Indeed, States were permitted to regulate many of the local activities of interstate firms and thus the 

interstate operations, in pursuit of these interests. 988 Here, too, 

safety concerns became overriding objects of deference, even in 

doubtful cases. 989 In regard to navigation, which had given rise to 

Gibbons v. Ogden and Cooley, the Court generally upheld much 

state regulation on the basis that the activities were local and did 

not demand uniform rules. 990

238 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

(1937) (upholding state inspection and regulation of tugs operating in navigable waters, in absence of federal law). 991 E.g., Western Union Tel Co. v. Foster, 247 U.S. 105 (1918); Lemke v. Framers Grain Co., 258 U.S. 50 (1922); State Corp. Comm’n v. Wichita Gas Co., 290 U.S. 

561 (1934). 992Milk Control Board v. Eisenberg Co., 306 U.S. 346 (1939) (milk); Parker v. 

Brown, 317 U.S. 341 (1943) (raisins). 993 91 U.S. 275 (1875). 994 136 U.S. 313 (1890). 995 E.g., Brimmer v. Rebman, 138 U.S. 78 (1891) (law requiring postslaughter 

inspection in each county of meat transported over 100 miles from the place of 

slaughter); Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951) (city ordinance 

preventing selling of milk as pasteurized unless it had been processed and bottled 

at an approved plant within a radius of five miles from the central square of Madison). As the latter case demonstrates, it is constitutionally irrelevant that other 

Wisconsin producers were also disadvantaged by the law. For a modern application 

of the principle of these cases, see Fort Gratiot Sanitary Landfill v. Michigan Natural Resources Dept., 504 U.S. 353 (1992) (forbidding landfills from accepting outof-county wastes). And see C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 

383, 391 (1994) (discrimination against interstate commerce not preserved because 

local businesses also suffer). 996 294 U.S. 511 (1935). See also Polar Ice Cream & Creamery Co. v. Andrews, 

375 U.S. 361 (1964). With regard to products originating within the State, the Court 

had no difficulty with price fixing. Nebbia v. New York, 291 U.S. 502 (1934). 

As a general rule, during this time, although the Court did not 

permit States to regulate a purely interstate activity or prescribe 

prices for purely interstate transactions, 991 it did sustain a great 

deal of price and other regulation imposed prior to or subsequent 

to the travel in interstate commerce of goods produced for such 

commerce or received from such commerce. For example, decisions 

late in the period upheld state price-fixing schemes applied to 

goods intended for interstate commerce. 992

However, the States always had an obligation to act 

nondiscriminatorily. Just as in the taxing area, regulation that was 

parochially oriented, to protect local producers or industries, for instance, was not evaluated under ordinary standards but subjected 

to practically per se invalidation. The mirror image of Welton v. 

Missouri, 993 the tax case, was Minnesota v. Barber, 994 in which the 

Court invalidated a facially neutral law that in its practical effect 

discriminated against interstate commerce and in favor of local 

commerce. The law required fresh meat sold in the State to have 

been inspected by its own inspectors with 24 hours of slaughter. 

Thus, meat slaughtered in other States was excluded from the Minnesota market. The principle of the case has a long pedigree of application. 995 State protectionist regulation on behalf of local milk 

producers has occasioned judicial censure. Thus, in Baldwin v. 

G.A.F. Seelig, Inc., 996 the Court had before it a complex state pricefixing scheme for milk, in which the State, in order to keep the 

price of milk artificially high within the State, required milk dealers buying out-of-state to pay producers, wherever they were, what 

ART. I—LEGISLATIVE DEPARTMENT 239

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

997 336 U.S. 525 (1949). For the most recent case in this saga, see West Lynn 

Creamery, Inc. v. Healy, 512 U.S. 186 (1994). 998 And the Court does not permit a State to combat discrimination against its 

own products by admitting only products (here, again, milk) from States that have 

reciprocity agreements with it to protect its own dealers. Great Atlantic & Pacific 

Tea Co. v. Cottrell, 424 U.S. 366 (1976). 999Formulation of a balancing test was achieved in Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945),and was thereafter maintained more or less consistently. 

The Court’s current phrasing of the test was in Pike v. Bruce Church, Inc., 397 U.S. 

137 (1970). 1000 Indeed, scholars dispute just when the modern standard was firmly adopted. 

The conventional view is that it was articulated in Complete Auto Transit, Inc. v. 

Brady, 430 U.S. 274 (1977), but there also seems little doubt that the foundation 

of the present law was laid in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959). 1001 Compare Freeman v. Hewit, 329 U.S. 249, 252–256 (1946), with Western

Live Stock v. Bureau of Revenue, 303 U.S. 250, 258, 260 (1938). 1002 358 U.S. 450 (1959). 1003 358 U.S. at 461–62. See Western Live Stock v. Bureau of Revenue, 303 U.S. 

250, 254 (1938). For recent reiterations of the principle, see Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298, 310 n.5 (1992) (citing cases). 

the dealers had to pay within the State, and, thus, in-state producers were protected. And in H. P. Hood & Sons, Inc. v. Du 

Mond, 997 the Court struck down a state refusal to grant an out-ofstate milk distributor a license to operate a milk receiving station 

within the State on the basis that the additional diversion of local 

milk to the other State would impair the supply for the in-state 

market. A State may not bar an interstate market to protect local 

interests. 998

State Taxation and Regulation: The Modern Law 

General Considerations.—Transition from the old law to the 

modern standard occurred relatively smoothly in the field of regulation, 999 but in the area of taxation the passage was choppy and 

often witnessed retreats and advances. 1000 In any event, both taxation and regulation now are evaluated under a judicial balancing 

formula comparing the burden on interstate commerce with the importance of the state interest, save for discriminatory state action 

that cannot be justified at all. 

Taxation.—During the 1940s and 1950s, there was engaged 

within the Court a contest between the view that interstate commerce could not be taxed at all, at least ‘‘directly,’’ and the view 

that the negative commerce clause protected against the risk of 

double taxation. 1001 In Northwestern States Portland Cement Co. v. 

Minnesota, 1002 the Court reasserted the principle expressed earlier 

in Western Live Stock, that the Framers did not intend to immunize interstate commerce from its just share of the state tax burden 

even though it increased the cost of doing business. 1003 Northwestern States held that a State could constitutionally impose a 

240 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1004 Hellerstein, State Taxation of Interstate Business: Perspectives on Two Centuries of Constitutional Adjudication, 41 TAX LAW. 37, 54 (1987). 1005Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602 (1951). The attenuated nature of the purported distinction was evidenced in Colonial Pipeline Co. v. 

Traigle, 421 U.S. 100 (1975), in which the Court sustained a nondiscriminatory, fairly apportioned franchise tax that was measured by the taxpayer’s capital stock, imposed on a pipeline company doing an exclusively interstate business in the taxing 

State, on the basis that it was a tax imposed on the privilege of conducting business 

in the corporate form. 1006 430 U.S. 274 (1977). 1007 430 U.S. at 279, 288. ‘‘In reviewing Commerce Clause challenges to state 

taxes, our goal has instead been to ‘establish a consistent and rational method of 

inquiry’ focusing on ‘the practical effect of a challenged tax.’’’ Commonwealth Edison 

Co. v. Montana, 453 U.S. 609, 615 (1981) (quoting Mobil Oil Corp. v. Commissioner 

of Taxes, 445 U.S. 425, 443 (1980)). 

nondiscriminatory, fairly apportioned net income tax on an out-ofstate corporation engaged exclusively in interstate commerce in the 

taxing State. ‘‘For the first time outside the context of property taxation, the Court explicitly recognized that an exclusively interstate 

business could be subjected to the states’ taxing powers.’’ 1004 Thus,

in Northwestern States, foreign corporations, which maintained a 

sales office and employed sales staff in the taxing State for solicitation of orders for their merchandise that, upon acceptance of the 

orders at their home office in another jurisdiction, were shipped to 

customers in the taxing State, were held liable to pay the latter’s 

income tax on that portion of the net income of their interstate 

business as was attributable to such solicitation. 

Yet, the following years saw inconsistent rulings that turned 

almost completely upon the use of or failure to use ‘‘magic words’’ 

by legislative drafters. That is, it was constitutional for the States 

to tax a corporation’s net income, properly apportioned to the taxing State, as in Northwestern States, but no State could levy a tax 

on a foreign corporation for the privilege of doing business in the 

State, both taxes alike in all respects. 1005 In Complete Auto Transit, Inc. v. Brady, 1006 the Court overruled the cases embodying the 

distinction and articulated a standard that has governed the cases 

since. The tax in Brady was imposed on the privilege of doing business as applied to a corporation engaged in interstate transportation services in the taxing State; it was measured by the corporation’s gross receipts from the service. The appropriate concern, the 

Court wrote, was to pay attention to ‘‘economic realities’’ and to 

‘‘address the problems with which the commerce clause is concerned.’’ 1007 The standard, a set of four factors that was distilled 

from precedent but newly applied, was firmly set out. A tax on 

interstate commerce will be sustained ‘‘when the tax is applied to 

an activity with a substantial nexus with the taxing State, is fairly 

apportioned, does not discriminate against interstate commerce, 

ART. I—LEGISLATIVE DEPARTMENT 241

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1008 430 U.S. at 279. The rationale of these four parts of the test is set out in 

Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298, 312-13 (1992). A recent 

application of the four-part Complete Auto Transit test is Oklahoma Tax Comm’n 

v. Jefferson Lines, Inc., 514 U.S. 175 (1995). 1009 It had been thought that the tests of nexus under the commerce clause and 

the due process clause were identical, but, controversially, in Quill Corp. v. North 

Dakota ex rel. Heitkamp, 504 U.S. 298, 306-08 (1992), but compare id. at 319 (Justice White concurring in part and dissenting in part), the Court, stating that the 

two ‘‘are closely related,’’ (citing National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753, 756 (1967)), held that the two constitutional requirements ‘‘differ fundamentally’’ and it found a state tax met the due process test while 

violating the commerce clause. 1010 National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 756 

(1967). The phraseology is quoted from a due process case, Miller Bros. v. Maryland, 

347 U.S. 340, 344–345 (1954), but as a statement it probably survives the bifurcation of the tests in Quill. 1011Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298, 312 (1992). 1012 504 U.S. at 313. 1013Scripto v. Carson, 362 U.S. 207 (1960); National Geographic Society v. California Bd. of Equalization,, 430 U.S. 551 (1977). The agents in the State in 

Scripto were independent contractors, rather than employees, but this distinction 

was irrelevant. See also Tyler Pipe Indus. v. Washington State Dept. of Revenue, 

483 U.S. 232, 249–250 (1987) (reaffirming Scripto on this point). See also D. H. 

Holmes Co. v. McNamara, 486 U.S. 24 (1988) (imposition of use tax on catalogs, 

printed outside State at direction of an in-state corporation and shipped to prospective customers within the State, upheld). 1014 National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 

753 (1967), reaffirmed with respect to the commerce clause in Quill Corp. v. North 

Dakota ex rel. Heitkamp, 504 U.S. 298 (1992). 

and is fairly related to the services provided by the State.’’ 1008 All

subsequent cases have been decided in this framework. 

Nexus.—Nexus is a requirement that flows from both the commerce clause and the due process clause of the Fourteenth Amendment. 1009 What is required is ‘‘some definite link, some minimum 

connection, between a state and the person, property or transaction 

it seeks to tax.’’ 1010 In its commerce-clause setting, the nexus requirement serves to effectuate the ‘‘structural concerns about the 

effects of state regulation on the national economy.’’ 1011 That is, 

‘‘the ‘substantial-nexus’ requirement . . . limit[s] the reach of State 

taxing authority so as to ensure that State taxation does not unduly burden interstate commerce.’’ 1012

Often surfacing in cases having to do with the imposition of an 

obligation by a State on an out-of-state vendor to collect use taxes 

on goods sold to purchasers in the taxing State, the test is a ‘‘physical presence’’ standard. The Court has sustained the imposition on 

mail order sellers with retail outlets, solicitors, or property within 

the taxing State, 1013 but it has denied the power to a State when 

the only connection is that the company communicates with customers in the State by mail or common carrier as part of a general 

interstate business. 1014 The validity of general business taxes on 

interstate enterprises may also be determined by the nexus standVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00179 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
242 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1015Some in-state contact is necessary in many instances by statutory 

compulson, Reacting to Northwestern States, Congress enacted P.L. 86–272, 15 

U.S.C. § 381, providing that mere solicitation by a company acting outside the State 

did not support imposition of a state income tax on a company’s proceeds. See

Heublein, Inc. v. South Carolina Tax Comm’n, 409 U.S. 275 (1972). 1016Standard Pressed Steel Co. v. Department of Revenue, 419 U.S. 560 (1975). 

See also General Motors Corp. v. Washington, 377 U.S. 436 (1964). 1017Tyler Pipe Industries v. Dept. of Revenue, 483 U.S. 232, 249–251 (1987). 

The Court noted its agreement with the state court holding that ‘‘‘the crucial factor 

governing nexus is whether the activities performed in this state on behalf of the 

taxpayer are significantly associated with the taxpayer’s ability to establish and 

maintain a market in this state for the sales.’’’ Id. at 250. 1018 United Air Lines v. Mahin, 410 U.S. 623 (1973). 1019 Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 165–169 

(1983); ASARCO Inc. v. Idaho State Tax Comm’n, 458 U.S. 307, 316–17 (1982). 

Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 528 U.S. 58 (2000) (interest deduction not properly apportioned between unitary and non-unitary business). 1020 E.g., Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 26 (1891); 

Maine v. Grand Trunk Ry., 142 U.S. 217, 278 (1891). 

ard. However, again, only a minimal contact is necessary. 1015 Thus,

maintenance of one full-time employee within the State (plus occasional visits by non-resident engineers) to make possible the realization and continuance of contractual relations seemed to the 

Court to make almost frivolous a claim of lack of sufficient 

nexus. 1016 The application of a state business-and-occupation tax 

on the gross receipts from a large wholesale volume of pipe and 

drainage products in the State was sustained, even though the 

company maintained no office, owned no property, and had no employees in the State, its marketing activities being carried out by 

an in-state independent contractor. 1017 Also, the Court upheld a 

State’s application of a use tax to aviation fuel stored temporarily 

in the State prior to loading on aircraft for consumption in interstate flights. 1018

Given the complexity of modern corporations and their frequent diversification and control of subsidiaries, state treatment of 

businesses operating within and without their borders requires an 

appropriate definition of the scope of business operations. Thus, 

States may impose a tax in accordance with a ‘‘unitary business’’ 

apportionment formula on concerns carrying on part of their business within the taxing State based upon the company’s entire proceeds. But there must be a nexus, or minimal connection, between 

the interstate activities and the taxing State and a rational relationship between the income attributed to the State and the intrastate values of the enterprise. 1019

Apportionment.—This requirement is of long standing, 1020 but

its importance has broadened as the scope of the States’ taxing 

powers has enlarged. It is concerned with what formulas the States 

must use to claim a share of a multistate business’ tax base for the 

ART. I—LEGISLATIVE DEPARTMENT 243

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1021The recent cases are, Moorman Mfg. Co. v. Bair, 437 U.S. 267 (1978); Mobil 

Oil Corp. v. Commissioner of Taxes, 445 U.S. 425 (1980); Exxon Corp. v. Wisconsin 

Dep’t of Revenue, 447 U.S. 207 (1980); ASARCO Inc. v. Idaho State Tax Comm’n, 

458 U.S. 307 (1982); F. W. Woolworth Co. v. New Mexico Taxation & Revenue Dep’t, 

458 U.S. 354 (1982); Container Corp. of America v. Franchise Tax Board, 463 U.S. 

159 (1983); Tyler Pipe Industries v. Dept. of Revenue, 483 U.S. 232, 251 (1987) Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U.S. 768 (1992). Cf. American

Trucking Ass’ns Inc. v. Scheiner, 483 U.S. 266 (1987). 1022Moorman Mfg. Co. v. Bair, 437 U.S. 267, 278–280 (1978). 1023Goldberg v. Sweet, 488 U.S. 252, 261 (1989). 1024 488 U.S. at 261, 262 (internal citations omitted). 1025 Id. The tax law provided a credit for any taxpayer who was taxed by another State on the same call. Actual multiple taxation could thus be avoided, the 

risks of other multiple taxation was small, and it was impracticable to keep track 

of the taxable transactions. 

taxing State, when the business carries on a single integrated enterprise both within and without the State. A State may not exact 

from interstate commerce more than the State’s fair share. Avoidance of multiple taxation, or the risk of multiple taxation, is the 

test of an apportionment formula. Generally speaking, this factor 

is both a commerce clause and a due process requisite, and it necessitates a rational relationship between the income attributed to 

the State and the intrastate values of the enterprise. 1021 The Court 

has declined to impose any particular formula on the States, reasoning that to do so would be to require the Court to engage in ‘‘extensive judicial lawmaking,’’ for which it was ill-suited and for 

which Congress had ample power and ability to legislate. 1022

Rather, ‘‘we determine whether a tax is fairly apportioned by 

examining whether it is internally and externally consistent.’’ 1023

‘‘To be internally consistent, a tax must be structured so that if 

every State were to impose an identical tax, no multiple taxation 

would result. Thus, the internal consistency test focuses on the text 

of the challenged statute and hypothesizes a situation where other 

States have passed an identical statute... .’’ 

‘‘The external consistency test asks whether the State has 

taxed only that portion of the revenues from the interstate activity 

which reasonably reflects the in-state component of the activity 

being taxed. We thus examine the in-state business activity which 

triggers the taxable event and the practical or economic effect of 

the tax on that interstate activity.’’ 1024 In the latter case, the Court 

upheld as properly apportioned a state tax on the gross charge of 

any telephone call originated or terminated in the State and 

charged to an in-state service address, regardless of where the telephone call was billed or paid. 1025 A complex state tax imposed on 

trucks displays the operation of the test. Thus, a state registration 

tax met the internal consistency test because every State honored 

every other States’, and a motor fuel tax similarly was sustained 

244 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1026 American Trucking Ass’ns v. Scheiner, 483 U.S. 266 (1987). 1027 Indeed, there seemed to be a precedent squarely on point, Central Greyhound Lines v. Mealey, 334 U.S. 653 (1948). Struck down in that case was a state 

statute that failed to apportion its taxation of interstate bus ticket sales to reflect 

the distance traveled within the State. 1028Oklahoma Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175 (1995). Indeed, 

the Court analogized the tax to that in Goldberg v. Sweet, 488 U.S. 252 (1989), a 

tax on interstate telephone services that originated in or terminated in the State 

and that were bill to an in-state address. 1029Fulton Corp. v. Faulkner, 516 U.S. 325 (1996). The State had defended on 

the basis that the tax was a ‘‘compensatory’’ one designed to make interstate commerce bear a burden already borne by intrastate commerce. The Court recognized 

the legitimacy of the defense, but it found the tax to meet none of the three criteria 

for classification as a valid compensatory tax. Id. at 333–44. See also South Central 

Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999) (tax not justified as compensatory). 1030 Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 329 (1977) 

(quoting, Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457 

because it was apportioned to mileage traveled in the State, whereas lump-sum annual taxes, an axle tax and an identification marker fee, being unapportioned flat taxes imposed for the use of the 

State’s roads, were voided, under the internal consistency test, because if every State imposed them the burden on interstate commerce would be great. 1026

A deference to state taxing authority was evident in a case in 

which the Court sustained a state sales tax on the price of a bus 

ticket for travel that originated in the State but terminated in another State. The tax was unapportioned to reflect the intrastate 

travel and the interstate travel. 1027 The tax in this case was different from the tax upheld in Central Greyhound, the Court held. 

The previous tax constituted a levy on gross receipts, payable by 

the seller, whereas the present tax was a sales tax, also assessed 

on gross receipts, but payable by the buyer. The Oklahoma tax, the 

Court continued, was internally consistent, since if every State imposed a tax on ticket sales within the State for travel originating 

there, no sale would be subject to more than one tax. The tax was 

also externally consistent, the Court held, because it was a tax on 

the sale of a service that took place in the State, not a tax on the 

travel. 1028

However, the Court found discriminatory and thus invalid a 

state intangibles tax on a fraction of the value of corporate stock 

owned by state residents inversely proportional to the State’s exposure to the state income tax. 1029

Discrimination.—The ‘‘fundamental principle’’ governing this 

factor is simple. ‘‘‘No State may, consistent with the Commerce 

Clause, impose a tax which discriminates against interstate commerce . . . by providing a direct commercial advantage to local business.’’’ 1030 That is, a tax which by its terms or operation imposes 

ART. I—LEGISLATIVE DEPARTMENT 245

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

(1959)). The principle, as we have observed above, is a long-standing one under the 

commerce clause. E.g., Welton v. Missouri, 91 U.S. 275 (1876). 1031Maryland v. Louisiana, 451 U.S. 725, 753–760 (1981). But see Commonwealth Edison Co. v. Montana, 453 U.S. 609, 617–619 (1981). And see Oregon Waste 

Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1994) (surcharge on in-state disposal of solid wastes that discriminates against companies disposing of waste generated in other States invalid). 1032 467 U.S. 638 (1984). 1033The Court applied the ‘‘internal consistency’’ test here too, in order to determine the existence of discrimination. 467 U.S. at 644–45. Thus, the wholesaler did 

not have to demonstrate it had paid a like tax to another State, only that if other 

States imposed like taxes it would be subject to discriminatory taxation. See

also Tyler Pipe Industries v. Dept. of Revenue, 483 U.S. 232 (1987); American 

Trucking Ass’ns, Inc. v. Scheiner, 483 U.S. 266 (1987); Amerada Hess Corp. v. Director, New Jersey Taxation Div., 490 U.S. 66 (1989); Kraft General Foods v. Iowa 

Dep’t of Revenue, 505 U.S. 71 (1992) 1034 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). 1035 New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988). Compare Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) (state intangibles tax on a fraction of 

the value of corporate stock owned by in-state residents inversely proportional to the 

corporation’s exposure to the state income tax violated dormant commerce clause), 

with General Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state imposition of sales 

and use tax on all sales of natural gas except sales by regulated public utilities, all 

of which were in-state companies, but covering all other sellers that were out-ofstate companies did not violate dormant commerce clause because regulated and unregulated companies were not similarly situated). 1036 520 U.S. 564 (1997). The decision was a 5–to–4 one with a strong dissent 

by Justice Scalia, id. at 595, and a philosophical departure by Justice Thomas. Id. 

at 609. 

greater burdens on out-of-state goods or activities than on competing in-state goods or activities will be struck down as discriminatory under the commerce clause. 1031 In Armco Inc. v. 

Hardesty, 1032 the Court voided as discriminatory the imposition on 

an out-of-state wholesaler of a state tax that was levied on manufacturing and wholesaling but that relieved manufacturers subject 

to the manufacturing tax of liability for paying the wholesaling tax. 

Even though the former tax was higher than the latter, the Court 

found the imposition discriminated against the interstate wholesaler. 1033 A state excise tax on wholesale liquor sales, which exempted sales of specified local products, was held to violate the 

commerce clause. 1034 A state statute that granted a tax credit for 

ethanol fuel if the ethanol was produced in the State, or if produced in another State that granted a similar credit to the State’s 

ethanol fuel, was found discriminatory in violation of the 

clause. 1035 Expanding, although neither unexpectedly nor exceptionally, its dormant commerce jurisprudence, the Court in Camps

Newfound/Owatonna, Inc. v. Town of Harrison 1036 applied its nondiscrimination element of the doctrine to invalidate the State’s 

charitable property tax exemption statute, which applied to nonprofit firms performing benevolent and charitable functions, but 

which excluded entities serving primarily non-state residents. The 

246 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1037 520 U.S. at 586. 1038 Commonwealth Edison Co. v. Montana, 453 U.S. 609, 620–29 (1981). Two 

state taxes imposing flat rates on truckers, because they did not vary directly with 

miles traveled or with some other proxy for value obtained from the State, were 

found to violate this standard in American Trucking Ass’ns, Inc. v. Scheiner, 483 

U.S. 266, 291 (1987), but this oblique holding was tagged onto an elaborate opinion 

holding the taxes invalid under two other Brady tests, and, thus, the precedential 

value is questionable. 1039 325 U.S. 761 (1945). 1040 E.g., DiSanto v. Pennsylvania, 273 U.S. 34, 43 (1927) (dissenting); California 

v. Thompson, 313 U.S. 109 (1941); Duckworth v. Arkansas, 314 U.S. 390 (1941); 

Parker v. Brown, 317 U.S. 341, 362–368 (1943) (alternative holding). 

claimant here operated a church camp for children, most of whom 

resided out-of-state. The discriminatory tax would easily have fallen had it been applied to profit-making firms, and the Court saw 

no reason to make an exception for nonprofits. The tax scheme was 

designed to encourage entities to care for local populations and to 

discourage attention to out-of-state individuals and groups. ‘‘For 

purposes of Commerce Clause analysis, any categorical distinction 

between the activities of profit-making enterprises and not-for-profit entities is therefore wholly illusory. Entities in both categories 

are major participants in interstate markets. And, although the 

summer camp involved in this case may have a relatively insignificant impact on the commerce of the entire Nation, the interstate 

commercial activities of nonprofit entities as a class are unquestionably significant.’’ 1037

Benefit Relationship.—Although, in all the modern cases, the 

Court has stated that a necessary factor to sustain state taxes having an interstate impact is that the levy be fairly related to benefits provided by the taxing State, it has declined to be drawn into 

any consideration of the amount of the tax or the value of the benefits bestowed. The test rather is whether, as a matter of the first 

factor, the business has the requisite nexus with the State; if it 

does, the tax meets the fourth factor simply because the business 

has enjoyed the opportunities and protections which the State has 

afforded it. 1038

Regulation.—Adoption of the modern standard of commerceclause review of state regulation of or having an impact on interstate commerce was achieved in Southern Pacific Co. v. 

Arizona, 1039 although it was presaged in a series of opinions, mostly dissents, by Chief Justice Stone. 1040 The Southern Pacific case

tested the validity of a state train-length law, justified as a safety 

measure. Revising a hundred years of doctrine, the Chief Justice 

wrote that whether a state or local regulation was valid depended 

upon a ‘‘reconciliation of the conflicting claims of state and national 

power [that] is to be attained only by some appraisal and accommoVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00184 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 247

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1041Southern Pacific Co. v. Arizona, 325 U.S. 761, 768–769 (1941). 1042 325 U.S. at 769. 1043 325 U.S. at 770–71. 1044 397 U.S. 137, 142 (1970). 1045Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992) (quoting City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)). See also Brown-Forman Distillers 

Corp. v. New York State Liquor Auth., 476 U.S. 573, 579 (1986). In Maine v. Taylor, 

477 U.S. 131 (1986), the Court did uphold a protectionist law, finding a valid jusdation of the competing demands of the state and national interests 

involved.’’ 1041 Save in those few cases in which Congress has acted, 

‘‘this Court, and not the state legislature, is under the commerce 

clause the final arbiter of the competing demands of state and national interests.’’ 1042

That the test to be applied was a balancing one, the Chief Justice made clear at length, stating that in order to determine whether the challenged regulation was permissible, ‘‘matters for ultimate 

determination are the nature and extent of the burden which the 

state regulation of interstate trains, adopted as a safety measure, 

imposes on interstate commerce, and whether the relative weights 

of the state and national interests involved are such as to make inapplicable the rule, generally observed, that the free flow of interstate commerce and its freedom from local restraints in matters requiring uniformity of regulation are interests safeguarded by the 

commerce clause from state interference.’’ 1043

The test today continues to be the Stone articulation, although 

the more frequently quoted encapsulation of it is from Pike v. Bruce 

Church, Inc. 1044 ‘‘Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the 

burden imposed on such commerce is clearly excessive in relation 

to the putative local benefits. . . . If a legitimate local purpose is 

found, then the question becomes one of degree. And the extent of 

the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.’’ 

Obviously, the test requires ‘‘even-handedness.’’ Discrimination in regulation is another matter altogether. When on its face 

or in its effect a regulation betrays ‘‘economic protectionism,’’ an intent to benefit in-state economic interests at the expense of out-ofstate interests, no balancing is required. ‘‘When a state statute 

clearly discriminates against interstate commerce, it will be struck 

down . . . unless the discrimination is demonstrably justified by a 

valid factor unrelated to economic protectionism, . . . . Indeed, when 

the state statute amounts to simple economic protectionism, a ‘virtually per se rule of invalidity’ has applied.’’ 1045 Thus, an Oklahoma 

248 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

tification aside from economic protectionism. The State barred the importation of 

out-of-state baitfish, and the Court credited lower-court findings that legitimate ecological concerns existed about the possible presence of parasites and nonnative species in baitfish shipments. 1046Wyoming v. Oklahoma, 502 U.S. 437 (1992). See also Maryland v. Louisiana, 

451 U.S. 725 (1981) (a tax case, invalidating a state first-use tax, which, because 

of exceptions and credits, imposed a tax only on natural gas moving out-of-state, because of impermissible discrimination). 1047 New England Power Co. v. New Hampshire, 455 U.S. 331 (1982). See

also Hughes v. Oklahoma, 441 U.S. 322 (1979) (voiding a ban on transporting minnows caught in the State for sale outside the State); Sporhase v. Nebraska, 458 U.S. 

941 (1982) (invalidating a ban on the withdrawal of ground water from any well in 

the State intended for use in another State). These cases largely eviscerated a line 

of older cases recognizing a strong state interest in protection of animals and resources. See Geer v. Connecticut, 161 U.S. 519 (1896). New England Power had 

rather old antecedents. E.g., West v. Kansas Gas Co., 221 U.S. 229 (1911); Pennsylvania v. West Virginia, 262 U.S. 553 (1923). 1048 432 U.S. 333 (1977). Other cases in which the State was attempting to promote and enhance local products and businesses include Pike v. Bruce Church, Inc., 

397 U.S. 137 (1970) (State required producer of high-quality cantaloupes to pack 

them in the State, rather than in an adjacent State at considerably less expense, 

in order that the produce be identified with the producing State); Foster-Fountain 

Packing Co. v. Haydel, 278 U.S. 1 (1928) (State banned export of shrimp from State 

until hulls and heads were removed and processed, in order to favor canning and 

manufacture within the State). 

law that required coal-fired electric utilities in the State, producing 

power for sale in the State, to burn a mixture of coal containing 

at least 10% Oklahoma-mined coal was invalidated at the behest 

of a State that had previously provided virtually 100% of the coal 

used by the Oklahoma utilities. 1046 Similarly, the Court invalidated 

a state law that permitted interdiction of export of hydroelectric 

power from the State to neighboring States, when in the opinion 

of regulatory authorities the energy was required for use in the 

State; a State may not prefer its own citizens over out-of-state residents in access to resources within the State. 1047

States may certainly promote local economic interests and 

favor local consumers, but they may not do so by adversely regulating out-of-state producers or consumers. In Hunt v. Washington 

State Apple Advertising Comm’n, 1048 the Court confronted a state 

requirement that closed containers of apples offered for sale or 

shipped into North Carolina carry no grade other than the applicable U. S. grade. Washington State mandated that all apples produced in and shipped in interstate commerce pass a much more 

rigorous inspection than that mandated by the United States. The 

inability to display the recognized state grade in North Carolina 

impeded marketing of Washington apples. The Court obviously suspected the impact was intended, but, rather than strike the state 

requirement down as purposeful, it held that the regulation had 

the practical effect of discriminating, and, inasmuch as no defense 

based on possible consumer protection could be presented, the state 

ART. I—LEGISLATIVE DEPARTMENT 249

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1049That discriminatory effects will result in invalidation, as well as purposeful 

discrimination, is also drawn from Dean Milk Co. v. City of Madison, 340 U.S. 349 

(1951) 1050 E.g., H. P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525 (1949). See also 

Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366 (1976) (state effort to combat discrimination by other States against its milk through reciprocity provisions). 

In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994), the Court held invalidly 

discriminatory against interstate commerce a state milk pricing order, which imposed an assessment on all milk sold by dealers to in-state retailers, the entire assessment being distributed to in-state dairy farmers despite the fact that about twothirds of the assessed milk was produced out of State. The avowed purpose and undisputed effect of the provision was to enable higher-cost in-state dairy farmers to 

compete with lower-cost dairy farmers in other States. 1051 Healy v. Beer Institute, Inc., 491 U.S. 324 (1989); Brown-Forman Distillers 

Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986). And see Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) (a tax case). 1052 City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), reaffirmed and applied in Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334 (1992), and Fort 

Gratiot Sanitary Landfill v. Michigan Natural Resources Dept., 504 U.S. 353 (1992). 1053See also Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511 

U.S. 93 (1994) (discriminatory tax). 1054 C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994). 

law was invalidated. 1049 State actions to promote local products 

and producers, of everything from milk 1050 to alcohol, 1051 may not 

be achieved through protectionism. 

Even garbage transportation and disposition is covered by the 

negative commerce clause. A state law that banned the importation 

of most solid or liquid wastes that originated outside the State was 

struck down, because the State could not justify it as a health or 

safety measure, in the form of a quarantine, inasmuch as it did not 

limit in-state disposal at its landfills; the State was simply attempting to conserve landfill space and lower costs to its residents 

by keeping out trash from other States. 1052 Further extending the 

limitation of the clause on waste disposal, 1053 the Court invalidated 

as a discrimination against interstate commerce a local ‘‘flow control’’ law, which required all solid waste within the town to be processed at a designated transfer station before leaving the municipality. 1054 The town’s reason for the restriction was its decision to 

have built a solid waste transfer station by a private contractor, 

rather than with public funds by the town. To make the arrangement appetizing to the contractor, the town guaranteed it a minimum waste flow, for which it could charge a fee significantly higher than market rates. The guarantee was policed by the requirement that all solid waste generated within the town be processed 

at the contractor’s station and that any person disposing of solid 

waste in any other location would be penalized. 

The Court analogized the constraint as a form of economic protectionism, which bars out-of-state processors from the business of 

treating the localities solid waste, by hoarding a local resource for 

250 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1055See The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 

149–59 (1994). Weight was given to this consideration by Justice O’Connor, 511 U.S. 

at 401 (concurring) (local law an excessive burden on interstate commerce), and by 

Justice Souter, id. at 410 (dissenting). 

1056 Edwards v. California, 314 U.S. 160 (1941) (California effort to bar ‘‘Okies,’’ 

persons fleeing the Great Plains dust bowl in the Depression). Cf. the notable case 

of Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867) (without tying it to any particular 

provision of Constitution, Court finds a protected right of interstate movement). The 

right of travel is now an aspect of equal protection jurisprudence. 

1057 449 U.S. 456, 470–474 (1981). 

1058 437 U.S. 117 (1978). 

the benefit of local businesses that perform the service. The town’s 

goal of revenue generation was not a local interest that could justify the discrimination. Moreover, the town had other means to accomplish this goal, such as subsidization of the local facility 

through general taxes or municipal bonds. The Court did not deal 

with, indeed, did not notice, the fact that the local law conferred 

a governmentally-granted monopoly, an exclusive franchise, indistinguishable from a host of local monopolies at the state and local 

level. 1055

States may not interdict the movement of persons into the 

State, whatever the motive to protect themselves from economic or 

similar difficulties. 1056

Drawing the line between discriminatory regulations that are 

almost per se invalid and regulations that necessitate balancing is 

not an easy task. Not every claim of protectionism is sustained. 

Thus, in Minnesota v. Clover Leaf Creamery Co., 1057 there was attacked a state law banning the retail sale of milk products in plastic, nonreturnable containers but permitting sales in other nonreturnable, nonrefillable containers, such as paperboard cartons. 

The Court found no discrimination against interstate commerce, 

because both in-state and out-of-state interests could not use plastic containers, and it refused to credit a lower, state-court finding 

that the measure was intended to benefit the local pulpwood industry. In Exxon Corp. v. Governor of Maryland, 1058 the Court upheld 

a statute that prohibited producers or refiners of petroleum products from operating retail service stations in Maryland. No discrimination was found, first, because there were no local producers 

or refiners within Maryland and therefore since the State’s entire 

gasoline supply flowed in interstate commerce there was no favoritism, and, second, although the bar on operating fell entirely on 

out-of-state concerns, there were out-of-state concerns that did not 

produce or refine gasoline and they were able to continue operating 

in the State, so that there was some distinction between all in-state 

ART. I—LEGISLATIVE DEPARTMENT 251

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1059 325 U.S. 761 (1945). Interestingly, Justice Stone had written the opinion for 

the Court in South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177 

(1938), in which, in a similar case involving regulation of interstate transportation 

and proffered safety reasons, he had eschewed balancing and deferred overwhelmingly to the state legislature. Barnwell Bros. involved a state law that prohibited 

use on state highways of trucks that were over 90 inches wide or that had a gross 

weight over 20,000 pounds, with from 85% to 90% of the Nation’s trucks exceeding 

these limits. This deference and refusal to evaluate evidence resurfaced in a case 

involving an attack on railroad ‘‘full-crew’’ laws. Brotherhood of Locomotive Firemen 

& Enginemen v. Chicago, R.I. & P. Railroad Co., 393 U.S. 129 (1968). 1060The concern about the impact of one State’s regulation upon the laws of 

other States is in part a reflection of the Cooley national uniformity interest and 

partly a hesitation about the autonomy of other States, E.g., CTS Corp. v. Dynamics 

Corp. of America, 481 U.S. 69, 88–89 (1987); Brown-Forman Distillers Corp. v. New 

York State Liquor Auth., 476 U.S. 573, 583–584 (1986). 1061Southern Pacific Co. v. Arizona, 325 U.S. 761, 771–75 (1945). 

operators and some out-of-state operators as against some other 

out-of-state operators. 

Still a model example of balancing is Chief Justice Stone’s 

opinion in Southern Pacific Co. v. Arizona. 1059 At issue was the validity of Arizona’s law barring the operation within the State of 

trains of more than 14 passenger cars, no other State had a figure 

this low, or 70 freight cars, only one other State had a cap this low. 

First, the Court observed that the law substantially burdened 

interstate commerce. Enforcement of the law in Arizona, while 

train lengths went unregulated or were regulated by varying standards in other States, meant that interstate trains of a length lawful 

in other States had to be broken up before entering the State; inasmuch as it was not practicable to break up trains at the border, 

that act had to be accomplished at yards quite removed, with the 

result that the Arizona limitation controlled train lengths as far 

east as El Paso, Texas, and as far west as Los Angeles. Nearly 95% 

of the rail traffic in Arizona was interstate. The other alternative 

was to operate in other States with the lowest cap, Arizona’s, with 

the result that that State’s law controlled the railroads’ operations 

over a wide area. 1060 If other States began regulating at different 

lengths, as they would be permitted to do, the burden on the railroads would burgeon. Moreover, the additional number of trains 

needed to comply with the cap just within Arizona was costly, and 

delays were occasioned by the need to break up and remake 

lengthy trains. 1061

Conversely, the Court found that as a safety measure the state 

cap had ‘‘at most slight and dubious advantage, if any, over unregulated train lengths.’’ That is, while there were safety problems 

with longer trains, the shorter trains mandated by state law required increases in the numbers of trains and train operations and 

a consequent increase in accidents generally more severe than 

252 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1062 325 U.S. at 775–79, 781–84. 1063 359 U.S. 520 (1959). 1064 Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429 (1978); Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981). 1065Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 670–671 (1981), 

(quoting Raymond Motor Transp. v. Rice, 434 U.S. 429, 441, 443 (1978)). Both cases 

invalidated state prohibitions of the use of 65–foot single-trailer trucks on state 

highways.

those attributable to longer trains. In short, the evidence did not 

show that the cap lessened rather than increased the danger of accidents. 1062

Conflicting state regulations appeared in Bibb v. Navajo 

Freight Lines. 1063 There, Illinois required the use of contour mudguards on trucks and trailers operating on the State’s highways, 

while adjacent Arkansas required the use of straight mudguards 

and banned contoured ones. At least 45 States authorized straight 

mudguards. The Court sifted the evidence and found it conflicting 

on the comparative safety advantages of contoured and straight 

mudguards. But, admitting that if that were all that was involved 

the Court would have to sustain the costs and burdens of outfitting 

with the required mudguards, the Court invalidated the Illinois 

law, because of the massive burden on interstate commerce occasioned by the necessity of truckers to shift cargoes to differently designed vehicles at the State’s borders. 

Arguably, the Court in more recent years has continued to 

stiffen the scrutiny with which it reviews state regulation of interstate carriers purportedly for safety reasons. 1064 Difficulty attends 

any evaluation of the possible developing approach, inasmuch as 

the Court has spoken with several voices. A close reading, however, 

indicates that while the Court is most reluctant to invalidate regulations that touch upon safety and that if safety justifications are 

not illusory it will not second-guess legislative judgment, nonetheless, the Court will not accept, without more, state assertions of 

safety motivations. ‘‘Regulations designed for that salutary purpose 

nevertheless may further the purpose so marginally, and interfere 

with commerce so substantially, as to be invalid under the Commerce Clause.’’ Rather, the asserted safety purpose must be 

weighed against the degree of interference with interstate commerce. ‘‘This ‘weighing’ . . . requires . . . a sensitive consideration of 

the weight and nature of the state regulatory concern in light of 

the extent of the burden imposed on the course of interstate commerce.’’ 1065

Balancing has been used in other than transportation-industry 

cases. Indeed, the modern restatement of the standard was in such 

ART. I—LEGISLATIVE DEPARTMENT 253

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1066Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). 1067Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980). 1068 457 U.S. 624 (1982) (plurality opinion). 1069 CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987). 1070 E.g., Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 489 U.S. 

493, 525–526 (1989); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 472– 

474 (1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127–128 (1978). But

see Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988). 

a case. 1066 There, the State required cantaloupes grown in the 

State to be packed there, rather than in an adjacent State, so that 

in-state packers’ names would be associated with a superior product. Promotion of a local industry was legitimate, the Court, said, 

but it did not justify the substantial expense the company would 

have to incur to comply. State efforts to protect local markets, concerns, or consumers against outside companies have largely been 

unsuccessful. Thus, a state law that prohibited ownership of local 

investment-advisory businesses by out-of-state banks, bank-holding 

companies, and trust companies was invalidated. 1067 The Court 

plainly thought the statute was protectionist, but instead of voiding 

it for that reason it held that the legitimate interests the State 

might have did not justify the burdens placed on out-of-state companies and that the State could pursue the accomplishment of legitimate ends through some intermediate form of regulation. In 

Edgar v. Mite Corp., 1068 an Illinois regulation of take-over attempts 

of companies that had specified business contacts with the State, 

as applied to an attempted take-over of a Delware corporation with 

its principal place of business in Connecticut, was found to constitute an undue burden, with special emphasis upon the 

extraterritorial effect of the law and the dangers of disuniformity. 

These problems were found lacking in the next case, in which the 

state statute regulated the manner in which purchasers of corporations chartered within the State and with a specified percentage of 

in-state shareholders could proceed with their take-over efforts. 

The Court emphasized that the State was regulating only its own 

corporations, which it was empowered to do, and no matter how 

many other States adopted such laws there would be no conflict. 

The burdens on interstate commerce, and the Court was not that 

clear that the effects of the law were burdensome in the appropriate context, were justified by the State’s interests in regulating 

its corporations and resident shareholders. 1069

In other areas, while the Court repeats balancing language, it 

has not applied it with any appreciable bite, 1070 but in most respects the state regulations involved are at most problematic in the 

context of the concerns of the commerce clause. 

254 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1071 25 U.S. (12 Wheat.) 419 (1827). 1072 Article I, § 10, cl. 2. This aspect of the doctrine of the case was considerably 

expanded in Low v. Austin, 80 U.S. (13 Wall.) 29 (1872), and subsequent cases, to 

bar States from levying nondiscriminatory, ad valorem property taxes upon goods 

that are no longer in import transit. This line of cases was overruled in Michelin 

Tire Corp. v. Wages, 423 U.S. 276 (1976). 1073See, e.g., Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64 (1963); 

Minnesota v. Blasius, 290 U.S. 1 (1933). After the holding in Michelin Tire, the two 

clauses are now congruent. The Court has observed that the two clauses are animated by the same policies. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 

434, 449–50 n.14 (1979). 1074 441 U.S. 434 (1979). 1075 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977). A state tax 

failed to pass the nondiscrimination standard in Kraft General Foods, Inc. v. Iowa 

Dept. of Revenue & Finance, 505 U.S. 71 (1992). Iowa imposed an income tax on 

a unitary business operating throughout the United States and in several foreign 

countries. It included in the tax base of corporations the dividends the companies 

received from subsidiaries operating in foreign countries, but it allowed exclusions 

from the base of dividends received from domestic subsidiaries. A domestic subForeign Commerce and State Powers 

State taxation and regulation of commerce from abroad are 

also subject to negative commerce clause constraints. In the seminal case of Brown v. Maryland, 1071 in the course of striking down 

a state statute requiring ‘‘all importers of foreign articles or commodities,’’ preparatory to selling the goods, to take out a license, 

Chief Justice Marshall developed a lengthy exegesis explaining 

why the law was void under both the import-export clause 1072 and

the commerce clause. According to the Chief Justice, an inseparable part of the right to import was the right to sell, and a tax 

on the sale of an article is a tax on the article itself. Thus, the taxing power of the States did not extend in any form to imports from 

abroad so long as they remain ‘‘the property of the importer, in his 

warehouse, in the original form or package’’ in which they were imported, hence, the famous ‘‘original package’’ doctrine. Only when 

the importer parts with his importations, mixes them into his general property by breaking up the packages, may the State treat 

them as taxable property. 

Obviously, to the extent that the import-export clause was construed to impose a complete ban on taxation of imports so long as 

they were in their original packages, there was little occasion to develop a commerce-clause analysis that would have reached only discriminatory taxes or taxes upon goods in transit. 1073 In other respects, however, the Court has applied the foreign commerce aspect 

of the clause more stringently against state taxation. 

Thus, in Japan Line, Ltd. v. County of Los Angeles, 1074 the

Court held that, in addition to satisfying the four requirements 

that govern the permissibility of state taxation of interstate commerce, 1075 ‘‘When a State seeks to tax the instrumentalities of forVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00192 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 255

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

sidiary doing business in Iowa was taxed but not ones that did no business. Thus, 

there was a facial distinction between foreign and domestic commerce. 1076 441 U.S. at 446, 448. See also Itel Containers Int’l Corp. v. Huddleston, 507 

U.S. 60 (1993) (sustaining state sales tax as applied to lease of containers delivered 

within the State and used in foreign commerce). 1077 441 U.S. at 451–57. For income taxes, the test is more lenient, accepting not 

only the risk but the actuality of some double taxation as something simply inherent 

in accounting devices. Container Corp. of America v. Franchise Tax Board, 463 U.S. 

159, 187–192 (1983). 1078Wardair Canada v. Florida Dep’t of Revenue, 477 U.S. 1 (1986). 

eign commerce, two additional considerations . . . come into play. 

The first is the enhanced risk of multiple taxation. . . . Second, a 

state tax on the instrumentalities of foreign commerce may impair 

federal uniformity in an area where federal uniformity is essential.’’ 1076 Multiple taxation is to be avoided with respect to interstate commerce by apportionment so that no jurisdiction may tax 

all the property of a multistate business, and the rule of apportionment is enforced by the Supreme Court with jurisdiction over all 

the States. However, the Court is unable to enforce such a rule 

against another country, and the country of the domicile of the 

business may impose a tax on full value. Uniformity could be frustrated by disputes over multiple taxation, and trade disputes could 

result.

Applying both these concerns, the Court invalidated a state 

tax, a nondiscriminatory, ad valorem property tax, on foreignowned instrumentalities, i.e., cargo containers, of international 

commerce. The containers were used exclusively in international 

commerce and were based in Japan, which did in fact tax them on 

full value. Thus, there was the actuality, not only the risk, of multiple taxation. National uniformity was endangered, because, while 

California taxed the Japanese containers, Japan did not tax American containers, and disputes resulted. 1077

On the other hand, the Court has upheld a state tax on all 

aviation fuel sold within the State as applied to a foreign airline 

operating charters to and from the United States. The Court found 

the Complete Auto standards met, and it similarly decided that the 

two standards specifically raised in foreign commerce cases were 

not violated. First, there was no danger of double taxation because 

the tax was imposed upon a discrete transaction, the sale of fuel, 

that occurred within one jurisdiction only. Second, the one-voice 

standard was satisfied, inasmuch as the United States had never 

entered into any compact with a foreign nation precluding such 

state taxation, having only signed agreements with others, having 

no force of law, aspiring to eliminate taxation that constituted impediments to air travel. 1078 Also, a state unitary-tax scheme that 

used a worldwide-combined reporting formula was upheld as apVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00193 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
256 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1079 Container Corp. of America v. Franchise Tax Board, 463 U.S. 159 (1983). 

The validity of the formula as applied to domestic corporations with foreign parents 

or to foreign corporations with foreign parents or foreign subsidiaries, so that some 

of the income earned abroad would be taxed within the taxing State, is a question 

of some considerable dispute. 1080 512 U.S. 298 (1994). 1081The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 

139–49 (1993). 1082 25 U.S. (12 Wheat.) 419, 443–444 (1827). 1083 New York City v. Miln, 36 U.S. (11 Pet.) 102 (1837) (upholding reporting 

requirements imposed on ships’ masters), overruled in Henderson v. New York, 92 

U.S. 259 (1876); Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 282 (1849); 

Chy Lung v. Freeman, 92 U.S. 275 (1876). 1084 Campagnie Francaise De Navigation a Vapeur v. Louisiana State Bd. of 

Health, 186 U.S. 380 (1902); Louisiana v. Texas, 176 U.S. 1 (1900); Morgan v. Louisiana, 118 U.S. 455 (1886). 

plied to the taxing of the income of a domestic-based corporate 

group with extensive foreign operations. 1079

Extending Container Corp., the Court in Barclays Bank v. 

Franchise Tax Bd. of California, 1080 upheld the State’s worldwidecombined reporting method of determining the corporate franchise 

tax owed by unitary multinational corporations, as applied to a foreign corporation. The Court determined that the tax easily satisfied 

three of the four-part Complete Auto test—nexus, apportionment, 

and relation to State’s services—and concluded that the nondiscrimination principle—perhaps violated by the letter of the 

law—could be met by the discretion accorded state officials. As for 

the two additional factors, as outlined in Japan Lines, the Court 

pronounced itself satisfied. Multiple taxation was not the inevitable 

result of the tax, and that risk would not be avoided by the use of 

any reasonable alternative. The tax, it was found, did not impair 

federal uniformity nor prevent the Federal Government from 

speaking with one voice in international trade. The result of the 

case, perhaps intended, is that foreign corporations have less protection under the negative commerce clause. 1081

The power to regulate foreign commerce was always broader 

than the States’ power to tax it, an exercise of the ‘‘police power’’ 

recognized by Chief Justice Marshall in Brown v. Maryland. 1082

That this power was constrained by notions of the national interest 

and preemption principles was evidenced in the cases striking 

down state efforts to curb and regulate the actions of shippers 

bringing persons into their ports. 1083 On the other hand, quarantine legislation to protect the States’ residents from disease and 

other hazards was commonly upheld though it regulated international commerce. 1084 A state game-season law applied to criminalize the possession of a dead grouse imported from Russia was 

ART. I—LEGISLATIVE DEPARTMENT 257

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1085 New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908). 1086 Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 456 n.20 (1979) 

(construing Bob-Lo Excursion Co. v. Michigan, 333 U.S. 28 (1948). 1087 22 U.S. (9 Wheat.) 1 (1824). 1088 A modern application of Gibbons v. Ogden is Douglas v. Seacoast Products, 

Inc., 431 U.S. 265 (1977), in which the Court, in reliance on the present version of 

the licensing statute utilized by Chief Justice Marshall, struck down state laws curtailing the operations of federally licensed vessels. In the course of the Douglas opinion, the Court observed that ‘‘[a]lthough it is true that the Court’s view in Gibbons of the intent of the Second Congress in passing the Enrollment and Licensing 

Act is considered incorrect by commentators, its provisions have been repeatedly reenacted in substantially the same form. We can safely assume that Congress was 

aware of the holding, as well as the criticism, of a case so renowned as Gibbons.

We have no doubt that Congress has ratified the statutory interpretation of Gibbons and its progeny.’’ Id. at 278–79. 

1089Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824). See also McCulloch v. 

Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). Although preemption is basically constitutional in nature, deriving its forcefulness from the supremacy clause, it is much 

more like statutory decisionmaking, inasmuch as it depends upon an interpretation 

of an act of Congress in determining whether a state law is ousted. E.g., Douglas 

v. Seacoast Products, Inc., 431 U.S. 265, 271–72 (1977). See also Swift & Co. v. 

Wickham, 382 U.S. 111 (1965). ‘‘Any such pre-emption or conflict claim is of course 

upheld because of the practical necessities of enforcement of domestic law. 1085

Nowadays, state regulation of foreign commerce is likely to be 

judged by the extra factors set out in Japan Line. 1086 Thus, the application of a state civil rights law to a corporation transporting 

passengers outside the State to an island in a foreign province was 

sustained in an opinion emphasizing that, because of the 

particularistic geographic situation the foreign commerce involved 

was more conceptual than actual, there was only a remote hazard 

of conflict between state law and the law of the other country and 

little if any prospect of burdening foreign commerce. 

CONCURRENT FEDERAL AND STATE JURISDICTION 

The General Issue: Preemption 

In Gibbons v. Ogden, 1087 the Court, speaking by Chief Justice 

Marshall, held that New York legislation that excluded from the 

navigable waters of that State steam vessels enrolled and licensed 

under an act of Congress to engage in the coasting trade was in 

conflict with the federal law and hence void. 1088 The result, said 

the Chief Justice, was required by the supremacy clause, which 

proclaimed not only that the Constitution itself but statutes enacted pursuant to it and treaties superseded state laws that ‘‘interfere with, or are contrary to the laws of Congress . . . . In every such 

case, the act of Congress, or the treaty, is supreme; and the law 

of the State, though enacted in the exercise of powers not controverted, must yield to it.’’ 1089

258 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

grounded in the Supremacy Clause of the Constitution: if a state measure conflicts 

with a federal requirement, the state provision must give way. The basic question 

involved in these cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes.’’ Id. at 120. 1090 Cases considered under this heading are overwhelmingly about federal legislation based on the commerce clause, but the principles enunciated are identical 

whatever source of power Congress utilizes. Therefore, cases arising under legislation based on other powers are cited and treated interchangeably. 1091 Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274, 285– 

286 (1971). 1092 Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This case arose under the immigration power of cl. 4. 

Since the turn of the century, federal legislation, primarily but 

not exclusively under the commerce clause, has penetrated deeper 

and deeper into areas once occupied by the regulatory power of the 

States. One result is that state laws on subjects about which Congress has legislated have been more and more frequently attacked 

as being incompatible with the acts of Congress and hence invalid 

under the supremacy clause. 1090

‘‘The constitutional principles of preemption, in whatever particular field of law they operate, are designed with a common end 

in view: to avoid conflicting regulation of conduct by various official 

bodies which might have some authority over the subject matter.’’ 1091 As Justice Black once explained in a much quoted exposition of the matter: ‘‘There is not—and from the very nature of the 

problem there cannot be—any rigid formula or rule which can be 

used as a universal pattern to determine the meaning and purpose 

of every act of Congress. This Court, in considering the validity of 

state laws in the light of treaties or federal laws touching the same 

subject, has made use of the following expressions: conflicting; contrary to; occupying the field; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; and interference. But 

none of these expressions provides an infallible constitutional test 

or an exclusive constitutional yardstick. In the final analysis, there 

can be no one crystal clear distinctly marked formula. Our primary 

function is to determine whether, under the circumstances of this 

particular case, Pennsylvania’s law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of 

Congress.’’ 1092

Before setting out in their various forms the standards and 

canons to which the Court formally adheres, one must still recognize the highly subjective nature of their application. As an astute 

observer long ago observed, ‘‘the use or non-use of particular tests, 

as well as their content, is influenced more by judicial reaction to 

the desirability of the state legislation brought into question than 

by metaphorical sign-language of ‘occupation of the field.’ And it 

ART. I—LEGISLATIVE DEPARTMENT 259

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1093 Cramton, Pennsylvania v. Nelson: A Case Study in Federal Preemption, 26 

U. CHI. L. REV. 85, 87–88 (1956). ‘‘The [Court] appears to use essentially the same 

reasoning process in a case nominally hinging on preemption as it has in past cases 

in which the question was whether the state law regulated or burdened interstate 

commerce. [The] Court has adopted the same weighing of interests approach in preemption cases that it uses to determine whether a state law unjustifiably burdens 

interstate commerce. In a number of situations the Court has invalidated statutes 

on the preemption ground when it appeared that the state laws sought to favor local 

economic interests at the expense of the interstate market. On the other hand, when 

the Court has been satisfied that valid local interests, such as those in safety or 

in the reputable operation of local business, outweigh the restrictive effect on interstate commerce, the Court has rejected the preemption argument and allowed state 

regulation to stand.’’ Note, Preemption as a Preferential Ground: A New Canon of 

Construction, 12 STAN. L. REV. 208, 217 (1959) (quoted approvingly as a ‘‘thoughtful 

student comment’’ in G. GUNTHER, CONSTITUTIONAL LAW 297 (12th ed. 1991)). 1094 E.g., Charleston & W. Car. Ry. v. Varnville Furniture Co., 237 U.S. 597, 604 

(1915). But see Corn Products Refining Co. v. Eddy, 249 U.S. 427, 438 (1919). 1095 E.g., Hines v. Davidowitz, 312 U.S. 52 (1941); Cloverleaf Butter v. Patterson, 315 U.S. 148 (1942); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947); California v. Zook, 336 U.S. 725 (1949). 1096Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992) (internal 

quotation marks and case citations omitted). Recourse to legislative history as one 

would seem that this is largely unavoidable. The Court, in order to 

determine an unexpressed congressional intent, has undertaken 

the task of making the independent judgment of social values that 

Congress has failed to make. In making this determination, the 

Court’s evaluation of the desirability of overlapping regulatory 

schemes or overlapping criminal sanctions cannot but be a substantial factor.’’ 1093

Preemption Standards.—Until roughly the New Deal, as recited above, the Supreme Court applied a doctrine of ‘‘dual federalism,’’ under which the Federal Government and the States 

were separate sovereigns, each preeminent in its own fields but 

lacking authority in the other’s. This conception affected preemption cases, with the Court taking the view, largely, that any congressional regulation of a subject effectively preempted the field 

and ousted the States. 1094 Thus, when Congress entered the field 

of railroad regulation, the result was invalidation of many previously enacted state measures. Even here, however, safety measures tended to survive, and health and safety legislation in other 

areas was protected from the effects of federal regulatory actions. 

In the 1940s, the Court began to develop modern standards for 

determining when preemption occurred, which are still recited and 

relied on. 1095 All modern cases recite some variation of the basic 

standards. ‘‘[T]he question whether a certain state action is preempted by federal law is one of congressional intent. The purpose 

of Congress is the ultimate touchstone. To discern Congress’ intent 

we examine the explicit statutory language and the structure and 

purpose of the statute.’’ 1096 Congress’ intent to supplant state auVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00197 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
260 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

means of ascertaining congressional intent, although contested, is permissible. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 606–612 & n.4 (1991). 1097 Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); FMC Corp. v. Holliday, 

498 U.S. 52, 56–57 (1991); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 

604–605 (1991). 1098Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (internal 

quotation marks and case citations omitted). The same or similar language is used 

throughout the preemption cases. E.g., Cipollone v. Liggett Group, 505 U.S. 504, 516 

(1992); id. at 532-33 (Justice Blackmun concurring and dissenting); id. at 545 (Justice Scalia concurring and dissenting); Wisconsin Public Intervenor v. Mortier, 501 

U.S. 597, 604–605 (1991); English v. General Electric Co., 496 U.S. 72, 78–80 (1990); 

Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984); Pacific Gas & Elec. Co. 

v. State Energy Resources Comm’n, 461 U.S. 190, 203–204 (1983); Fidelity Federal 

Savings & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982); Florida Lime & 

Avocado Growers v. Paul, 373 U.S. 132, 142 (1963); Hines v. Davidowitz, 312 U.S. 

52, 67 (1941). 1099Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 142 (1963);, Chicago 

& Northwestern Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981). 

Where Congress legislates in a field traditionally occupied by the States, courts 

should ‘‘start with the assumption that the historic police powers of the States were 

not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.’’ Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm., 461 U.S. 190, 206 (1983) (quoting Rice v. Santa Fe Elevator 

Corp., 331 U.S. 218, 230 (1947)). 1100Free v. Brand, 369 U.S. 633, 666 (1962). 

thority in a particular field may be express in the terms of the statute. 1097 Since preemption cases, when the statute contains no express provision, theoretically turn on statutory construction, generalizations about them can carry one only so far. Each case must 

construe a different federal statute with a distinct legislative history. If the statute and the legislative history are silent or unclear, 

the Supreme Court has developed over time general criteria which 

it purports to utilize in determining the preemptive effect of federal 

legislation.

‘‘Absent explicit pre-emptive language, we have recognized at 

least two types of implied pre-emption: field pre-emption, where 

the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, . . . and conflict pre-emption, where compliance with 

both federal and state regulations is a physical impossibility, . . . or 

where state law stands as an obstacle to the accomplishment and 

execution of the full purposes and objectives of Congress.’’ 1098 ‘‘Preemption of state law by federal statute or regulation is not favored 

‘in the absence of persuasive reasons—either that the nature of the 

regulated subject matters permits no other conclusion, or that the 

Congress has unmistakably so ordained.’’ 1099 However, ‘‘[t]he relative importance to the State of its own law is not material when 

there is a conflict with a valid federal law, for the Framers of our 

Constitution provided that the federal law must prevail.’’ 1100

ART. I—LEGISLATIVE DEPARTMENT 261

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1101 Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944) (per Justice Frankfurter). 1102 Not only congressional enactments can preempt. Agency regulations, when 

Congress has expressly or implied empowered these bodies to preempt, are ‘‘the supreme law of the land’’ under the supremacy clause and can displace state law. 

E.g., Smiley v. Citibank, 517 U.S. 735 (1996); City of New York v. FCC, 486 U.S. 

57, 63–64 (1988); Louisiana Public Service Comm’n v. FCC, 476 U.S. 355 (1986); 

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691 (1984); Fidelity Federal Savings & 

Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982). Federal common law, i.e., law promulgated by the courts respecting uniquely federal interests and absent explicit 

statutory directive by Congress, can also displace state law. See Boyle v. United 

Technologies Corp., 487 U.S. 500 (1988) (Supreme Court promulgated common-law 

rule creating government-contractor defense in tort liability suits, despite Congress 

having considered and failed to enact bills doing precisely this); Westfall v. Erwin, 

484 U.S. 292 (1988) (civil liability of federal officials for actions taken in the course 

of their duty). Finally, ordinances of local governments are subject to preemption 

under the same standards as state law. Hillsborough County v. Automated Medical 

Laboratories, 471 U.S. 707 (1985). 1103Thus, § 408 of the Federal Meat Inspection Act, as amended by the Wholesome Meat Act, 21 U.S. C. § 678, provides that ‘‘[m]arking, labeling, packaging, or 

ingredient requirements in addition to, or different than, those made under this 

chapter may not be imposed by any state ... .’’ See Jones v. Rath Packing Co., 430 

U.S. 519, 528–532 (1977). Similarly, much state action is saved by the Securities 

Exchange Act of 1934, 15 U.S.C. § 78bb(a), which states that ‘‘[n]othing in this chapter shall affect the jurisdiction of the securities commissioner (or any agency or officer performing like functions) of any State over any security or any person insofar 

as it does not conflict with the provisions of this chapter or the rules and regulations 

thereunder.’’ For examples of other express preemptive provisions, see Norfolk & 

Western Ry. v. American Train Dispatchers’ Ass’n, 499 U.S. 117 (1991); Exxon Corp. 

v. Hunt, 475 U.S. 355 (1986). And see Department of Treasury v. Fabe, 508 U.S. 

491 (1993). 

In the final conclusion, ‘‘the generalities’’ that may be drawn 

from the cases do not decide them. Rather, ‘‘the fate of state legislation in these cases has not been determined by these generalities 

but by the weight of the circumstances and the practical and experienced judgment in applying these generalities to the particular 

instances.’’ 1101

The Standards Applied.—As might be expected from the caveat just quoted, any overview of the Court’s preemption decisions 

can only make the field seem muddled, and to some extent it is. 

But some guidelines may be extracted. 

Express Preemption. Of course, it is possible for Congress to 

write preemptive language that clearly and cleanly prescribes or 

does not prescribe displacement of state laws in an area. 1102 Provisions governing preemption can be relatively interpretation 

free. 1103 For example, a prohibition of state taxes on carriage of air 

passengers ‘‘or on the gross receipts derived therefrom’’ was held 

to preempt a state tax on airlines, described by the State as a personal property tax, but based on a percentage of the airline’s gross 

income; ‘‘the manner in which the state legislature has described 

and categorized [the tax] cannot mask the fact that the purpose 

262 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1104 Aloha Airlines v. Director of Taxation, 464 U.S. 7, 13–14 (1983). 1105Morales v. TWA, 504 U.S. 374 (1992). The section, 49 U.S.C. § 1305(a)(1), 

was held to preempt state rules on advertising. See also American Airlines, Inc. v. 

Wolens, 513 U.S. 219 (1995). 1106 City of Columbus v. Ours Garage and Wrecker Serv., 122 S. Ct. 2226, 2230 

(2002). 1107Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985), repeated in FMC Corp. v. Holliday, 498 U.S. 52, 58 (1991). 1108 29 U.S.C. §§ 1144(a), 1144(b)(2)(A), 1144(b)(2)(B). The Court has described 

this section as a ‘‘virtually unique pre-emption provision.’’ Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 24 n.26 (1983). See Ingersoll-Rand

Co. v. McClendon, 498 U.S. 133, 138–139 (1990); and see id. at 142–45 (describing 

and applying another preemption provision of ERISA). 1109 Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (ERISA preempts 

state common-law claim of wrongful discharge to prevent employee attaining benefits under plan covered by ERISA); FMC Corp. v. Holliday, 498 U.S. 52 (1990) (provision of state motor-vehicle financial-responsibility law barring subrogation and reimbursement from claimant’s tort recovery for benefits received from a self-insured 

and effect of the provision are to impose a levy upon the gross receipts of airlines.’’ 1104 But, more often than not, express preemptive 

language may be ambiguous or at least not free from conflicting interpretation. Thus, the Court was divided with respect to whether 

a provision of the Airline Deregulation Act proscribing the States 

from having and enforcing laws ‘‘relating to rates, routes, or services of any air carrier’’ applied to displace state consumer-protection laws regulating airline fare advertising. 1105 A basic issue is 

whether preemption or saving language applicable to a ‘‘state’’ applies as well to local governments. In a case involving statutory 

language preserving ‘‘state’’ authority, the Court created a presumption favoring applicability to local governments: ‘‘[a]bsent a 

clear statement to the contrary, Congress’ reference to the ‘regulatory authority of a State’ should be read to preserve, not preempt, 

the traditional prerogative of the States to delegate their authority 

to their constituent parts.’’ 1106

Perhaps the broadest preemption section ever enacted, § 514 of 

the Employment Retirement Income Security Act of 1974 (ERISA), 

is so constructed that the Court has been moved to comment that 

the provisions ‘‘are not a model of legislative drafting.’’ 1107 The section declares that the statute shall ‘‘supersede any and all State 

laws insofar as they now or hereafter relate to any employee benefit plan,’’ but saves to the States the power to enforce ‘‘law[s] . . . 

which regulates insurance, banking, or securities,’’ except that an 

employee benefit plan governed by ERISA shall not be ‘‘deemed’’ an 

insurance company, an insurer, or engaged in the business of insurance for purposes of state laws ‘‘purporting to regulate’’ insurance companies or insurance contracts. 1108 Interpretation of the 

provisions has resulted in contentious and divided Court opinions. 1109

ART. I—LEGISLATIVE DEPARTMENT 263

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

health-care plan preempted by ERISA); Fort Halifax Packing Co. v. Coyne, 482 U.S. 

1 (1987) (state law requiring employers to provide a one-time severance payment 

to employees in the event of a plant closing held not preempted by 5–4 vote); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (state law mandating 

that certain minimum mental-health-care benefits be provided to those insured 

under general health-insurance policy or employee health-care plan is a law ‘‘which 

regulates insurance’’ and is not preempted); Shaw v. Delta Air Lines, 463 U.S. 85 

(1983) (state law forbidding discrimination in employee benefit plans on the basis 

of pregnancy not preempted, because of another saving provision in ERISA, and provision requiring employers to pay sick-leave benefits to employees unable to work 

because of pregnancy not preempted under construction of coverage sections, but 

both laws ‘‘relate to’’ employee benefit plans); Alessi v. Raybestos-Manhattan, Inc., 

451 U.S. 504 (1981) (state law prohibiting plans from reducing benefits by amount 

of workers’ compensation awards ‘‘relates to’’ employee benefit plan and is preempted); District of Columbia v. Greater Washington Bd. of Trade, 506 U.S. 125 

(1992) (law requiring employers to provide health insurance coverage, equivalent to 

existing coverage, for workers receiving workers’ compensation benefits); John Hancock Mutual Life Ins. Co. v. Harris Trust and Savings Bank, 510 U.S. 86 (1993) 

(ERISA’s fiduciary standards, not conflicting state insurance laws, apply to insurance company’s handling of general account assets derived from participating group 

annuity contract); New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645 (1995) (no preemption of statute that required hospitals 

to collect surcharges from patients covered by a commercial insurer but not from 

patients covered by Blue Cross/Blue Shield plan); De Buono v. NYSA-ILA Medical 

and Clinical Services Fund, 520 U.S. 806 (1997); California Div. of Labor Standards 

Enforcement v. Dillingham Construction, Inc., 519 U.S. 316 (1997); Boggs v. Boggs, 

520 U.S. 833 (1997) (decided not on the basis of the express preemption language 

but instead by implied preemption analysis). 1110 Cipollone v. Liggett Group, 505 U.S. 504 (1992). The decision as a canon of 

construction promulgated two controversial rules. First, the courts should interpret 

narrowly provisions that purport to preempt state police-power regulations, and, 

second, that when a law has express preemption language courts should look only 

to that language and presume that when the preemptive reach of a law is defined 

Congress did not intend to go beyond that reach, so that field and conflict preemption will not be found. Id. at 517; and id. at 532-33 (Justice Blackmun concurring 

and dissenting). Both parts of this canon are departures from established law. Narrow construction when state police powers are involved has hitherto related to implied preemption, not express preemption, and courts generally have applied ordinary-meaning construction to such statutory language; further, courts have not precluded the finding of conflict preemption, though perhaps field preemption, because 

of the existence of some express preemptive language. See id. at 546-48 (Justice 

Scalia concurring and dissenting). 

Illustrative of the judicial difficulty with ambiguous preemption language are the fractured opinions in the Cipollone case, in 

which the Court had to decide whether sections of the Federal Cigarette Labeling and Advertising Act, enacted in 1965 and 1969, 

preempted state common-law actions against a cigarette company 

for the alleged harm visited on a smoker. 1110 The 1965 provision 

barred the requirement of any ‘‘statement’’ relating to smoking 

health, other than what the federal law imposed, and the 1969 provision barred the imposition of any ‘‘requirement or prohibition 

based on smoking and health’’ by any ‘‘State law.’’ It was, thus, a 

fair question whether common-law claims, based on design defect, 

failure to warn, breach of express warranty, fraudulent misrepreVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00201 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
264 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1111 505 U.S. at 518-19 (opinion of the court), 533-34 (Justice Blackmun concurring).1112 505 U.S. at 520-30 (plurality opinion), 535-43 (Justice Blackmun concurring 

and dissenting), 548-50 (Justice Scalia concurring and dissenting). 1113 518 U.S. 470 (1996). See also CSX Transportation, Inc. v. Easterwood, 507 

U.S. 658 (1993) (under Federal Railroad Safety Act, a state common-law claim alleging negligence for operating a train at excessive speed is preempted, but a second 

claim alleging negligence for failure to maintain adequate warning devices at a 

grade crossing is not preempted); Norfolk So. Ry. v. Shanklin, 529 U.S. 344 (2000) 

(applying Easterwood). 1114 21 U.S.C. § 350k(a). 

sentation, and conspiracy to defraud, were preempted or whether 

only positive state enactments came within the scope of the 

clauses. Two groups of Justices concluded that the 1965 section 

reached only positive state law and did not preempt common-law 

actions; 1111 different alignments of Justices concluded that the 

1969 provisions did reach common-law claims, as well as positive 

enactments, and did preempt some of the claims insofar as they in 

fact constituted a requirement or prohibition based on smoking 

health. 1112

Little clarification of the confusing Cipollone decision and opinions resulted in the cases following, although it does seem evident 

that the attempted distinction limiting courts to the particular language of preemption when Congress has spoken has not prevailed. 

At issue in Medtronic, Inc. v. Lohr, was 1113 the Medical Device 

Amendments (MDA) of 1976, which prohibited States from adopting or continuing in effect ‘‘with respect to a [medical] device’’ any 

‘‘requirement’’ that is ‘‘different from, or in addition to’’ the applicable federal requirement and that relates to the safety or effectiveness of the device. 1114 The issue, then, was whether a common-law 

tort obligation imposed a ‘‘requirement’’ that was different from or 

in addition to any federal requirement. The device, a pacemaker 

lead, had come on the market not pursuant to the rigorous FDA 

test but rather as determined by the FDA to be ‘‘substantially 

equivalent’’ to a device previously on the market, a situation of 

some import to at least some of the Justices. 

Unanimously, the Court determined that a defective design 

claim was not preempted and that the MDA did not prevent States 

from providing a damages remedy for violation of common-law duties that paralleled federal requirements. But the Justices split 4– 

1-4 with respect to preemption of various claims relating to manufacturing and labeling. FDA regulations, which a majority deferred 

to, limited preemption to situations in which a particular state requirement threatens to interfere with a specific federal interest. 

Moreover, the common-law standards were not specifically developed to govern medical devices and their generality removed them 

ART. I—LEGISLATIVE DEPARTMENT 265

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1115The dissent, by Justice O’Connor and three others, would have held preempted the latter claims, 518 U.S. at 509, whereas Justice Breyer thought that common-law claims would sometimes be preempted, but not here. Id. at 503 (concurring).1116 518 U.S. at 484–85. See also id. at 508 (Justice Breyer concurring); 

Freightliner Corp. v. Myrick, 514 U.S. 280, 288–89 (1995); Barnett Bank v. Nelson, 

517 U.S. 25, 31 (1996); California Div. of Labor Standards Enforcement v. 

Dillingham Construction, Inc., 519 U.S. 316, 334 (1997) (Justice Scalia concurring); 

Boggs v. Boggs, 520 U.S. 833 (1997) (using ‘‘stands as an obstacle’’ preemption analysis in an ERISA case, having express preemptive language, but declining to decide 

when implied preemption may be used despite express language), and id. at 854 

(Justice Breyer dissenting) (analyzing the preemption issue under both express and 

implied standards). 1117 529 U.S. 861 (2000). 1118The Court focused on the word ‘‘exempt’’ to give the saving clause a narrow 

application – as ‘‘simply bar[ring] a special kind of defense, . . . that compliance with 

a federal safety standard automatically exempts a defendant from state law, whether the Federal Government meant that standard to be an absolute requirement or 

only a minimum one.’’ 529 U.S. at 869. 

from the category of requirements ‘‘with respect to’’ specific devices. 

However, five Justices did agree that common-law requirements 

could be, just as statutory provisions, ‘‘requirements’’ that were 

preempted, though they did not agree on the application of that 

view. 1115

Following Cipollone, the Court observed that while it ‘‘need not 

go beyond’’ the statutory preemption language, it did need to ‘‘identify the domain expressly pre-empted’’ by the language, so that ‘‘our 

interpretation of that language does not occur in a contextual vacuum.’’ That is, it must be informed by two presumptions about the 

nature of preemption: the presumption that Congress does not 

cavalierly preempt common-law causes of action and the principle 

that it is Congress’ purpose that is the ultimate touchstone. 1116

The Court continued to struggle with application of express 

preemption language to state common-law tort actions in Geier v. 

American Honda Motor Co. 1117 The National Traffic and Motor Vehicle Safety Act contained both a preemption clause, prohibiting 

states from applying ‘‘any safety standard’’ different from an applicable federal standard, and a ‘‘saving clause,’’ providing that ‘‘compliance with’’ a federal safety standard ‘‘does not exempt any person from any liability under common law.’’ The Court determined 

that the express preemption clause was inapplicable. However, despite the saving clause, the Court ruled that a common law tort action seeking damages for failure to equip a car with an airbag was 

preempted because its application would frustrate the purpose of a 

Federal Motor Vehicle Safety Standard that had allowed manufacturers to choose from among a variety of ‘‘passive restraint’’ systems for the applicable model year. 1118 The Court’s holding makes 

clear, contrary to the suggestion in Cipollone, that existence of exVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00203 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
266 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1119 Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). The case also is 

the source of the oft-quoted maxim that when Congress legislates in a field traditionally occupied by the States, courts should ‘‘start with the assumption that the 

historic police powers of the States were not to be superseded by the Federal Act 

unless that was the clear and manifest purpose of Congress.’’ Id. 1120 312 U.S. 52 (1941). 1121The Court also said that courts must look to see whether under the circumstances of a particular case, the state law ‘‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’’ 312 U.S. 

at 67. That standard is obviously drawn from conflict preemption, for the two standards are frequently intermixed. Nonetheless, not all state regulation is precluded. 

De Canas v. Bica, 424 U.S. 351 (1976) (upholding a state law penalizing the employment of an illegal alien, the case arising before enactment of the federal law doing 

the same thing). 1122 350 U.S. 497 (1956). 1123 350 U.S. at 502–05. Obviously, there is a noticeable blending into conflict 

preemption. 1124 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947). 1125 Compare Campbell v. Hussey, 368 U.S. 297 (1961) (state law requiring tobacco of a certain type to be marked by white tags, ousted by federal regulation that 

occupied the field and left no room for supplementation), with Florida Lime & Avocado Growers, Inc., 373 U.S. 132 (1963) (state law setting minimum oil content for 

avocados certified as mature by federal regulation is complementary to federal law, 

press preemption language does not foreclose operation of conflict 

(in this case ‘‘frustration of purpose’’) preemption. 

Field Preemption. Where the scheme of federal regulation is 

‘‘so pervasive as to make reasonable the inference that Congress 

left no room for the States to supplement it,’’ 1119 States are ousted 

from the field. Still a paradigmatic example of field preemption is 

Hines v. Davidowitz, 1120 in which the Court held that a new federal 

law requiring the registration of all aliens in the country precluded 

enforcement of a pre-existing state law mandating registration of 

aliens within the State. Adverting to the supremacy of national 

power in foreign relations and the sensitivity of the relationship between the regulation of aliens and the conduct of foreign affairs, 

the Court had little difficulty declaring the entire field to have been 

occupied by federal law. 1121 Similarly, in Pennsylvania v. Nelson, 1122 the Court invalidated as preempted a state law punishing 

sedition against the National Government. The Court enunciated a 

three-part test: 1) the pervasiveness of federal regulation; 2) federal 

occupation of the field as necessitated by the need for national uniformity; and 3) the danger of conflict between state and federal administration. 1123

The Rice case itself held that a federal system of regulating the 

operations of warehouses and the rates they charged completely occupied the field and ousted state regulation. 1124 However, it is 

often a close decision whether a federal law has regulated part of 

a field, however defined, or the whole area, so that state law cannot even supplement the federal. 1125 Illustrative of this point is the 

ART. I—LEGISLATIVE DEPARTMENT 267

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

since federal standard was a minimum one, the field having not been occupied). One 

should be wary of assuming that a state law that has dual purposes and impacts 

will not, just for the duality, be held to be preempted. See Gade v. National Solid 

Wastes Mgmt. Ass’n, 505 U.S. 88 (1992); Perez v. Campbell, 402 U.S. 637 (1971) 

(under bankruptcy clause). 1126Pacific Gas & Elec. Co. v. Energy Resources Comm’n, 461 U.S. 190 (1983). 

Neither does the same reservation of exclusive authority to regulate nuclear safety 

preempt imposition of punitive damages under state tort law, even if based upon 

the jury’s conclusion that a nuclear licensee failed to follow adequate safety precautions. Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984). See also English v. 

General Electric Co., 496 U.S. 72 (1990) (employee’s state-law claim for intentional 

infliction of emotional distress for her nuclear-plant employer’s actions retaliating 

for her whistleblowing is not preempted as relating to nuclear safety). 1127 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960). 1128 Askew v. American Waterways Operators, 411 U.S. 325 (1973). 1129 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). United States v. Locke, 

529 U.S. 89 (2000) (applying Ray). See also Exxon Corp. v. Eagerton, 462 U.S. 176 

(1983) (preempting a state ban on pass-through of a severance tax on oil and gas, 

because Congress has occupied the field of wholesale sales of natural gas in interstate commerce); Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988) (Natural 

Gas Act preempts state regulation of securities issuance by covered gas companies); 

Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989) (under patent 

clause, state law extending patent-like protection to unpatented designs invades an 

area of pervasive federal regulation). 

Court’s holding that the Atomic Energy Act’s preemption of the 

safety aspects of nuclear power did not invalidate a state law conditioning construction of nuclear power plants on a finding by a 

state agency that adequate storage and disposal facilities were 

available to treat nuclear wastes, since ‘‘economic’’ regulation of 

power generation has traditionally been left to the States - an arrangement maintained by the Act - and since the state law could 

be justified as an economic rather than a safety regulation. 1126

A city’s effort to enforce stiff penalties for ship pollution that 

resulted from boilers approved by the Federal Government was 

held not preempted, the field of boiler safety, but not boiler pollution, having been occupied by federal regulation. 1127 A state liability scheme imposing cleanup costs and strict, no-fault liability on 

shore facilities and ships for any oil-spill damage was held to complement a federal law concerned solely with recovery of actual 

cleanup costs incurred by the Federal Government and which textually presupposed federal-state cooperation. 1128 On the other 

hand, a comprehensive regulation of the design, size, and movement of oil tankers in Puget Sound was found, save in one respect, 

to be either expressly or implicitly preempted by federal law and 

regulations. Critical to the determination was the Court’s conclusion that Congress, without actually saying so, had intended to 

mandate exclusive standards and a single federal decisionmaker 

for safety purposes in vessel regulation. 1129 Also, a closely divided 

Court voided a city ordinance placing an 11 p.m. to 7 a.m. curfew 

268 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1130 City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973). 1131Transcontinental Gas Pipe Line Corp. v. Mississippi Oil & Gas Board, 474 

U.S. 409 (1986); Puerto Rico Dept. of Consumer Affairs v. Isla Petroleum Corp., 485 

U.S. 495 (1988). 1132 479 U.S. 1 (1986). 1133See also Lawrence County v. Lead-Deadwood School Dist., 469 U.S. 256 

(1985) (state law requiring local governments to distribute federal payments in lieu 

of taxes in same manner as general state-tax revenues conflicts with federal law authorizing local governments to use the payments for any governmental purpose); 

Southland Corp. v. Keating, 465 U.S. 1 (1984) (state franchise law requiring judicial 

resolution of claims preempted by federal arbitration law precluding adjudication in 

state or federal courts of claims parties had contracted to submit to arbitration); 

Perry v. Thomas, 482 U.S. 483 (1987) (federal arbitration law preempts state law 

providing that court actions for collection of wages may be maintained without regard to agreements to arbitrate); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 

265 (1995) (federal arbitration law preempts state law invalidating predispute arbitration agreements that were not entered into in contemplation of substantial interstate activity); Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 (1996) (federal 

arbitration law preempts state statute that conditioned enforceability of arbitration 

clause on compliance with special notice requirement). See also Free v. Brand, 369 

U.S. 663 (1962). 1134Fidelity Federal Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 (1982). 

on jet flights from the city airport where, despite the absence of 

preemptive language in federal law, federal regulation of aircraft 

noise was of such a pervasive nature as to leave no room for state 

or local regulation. 1130

Congress may preempt state regulation without itself prescribing a federal standard; it may deregulate a field and thus occupy it by opting for market regulation and precluding state or 

local regulation. 1131

Conflict Preemption. Several possible situations will lead to a 

holding that a state law is preempted as in conflict with federal 

law. First, it may be that the two laws, federal and state, will actually conflict. Thus, in Rose v. Arkansas State Police, 1132 federal law 

provided for death benefits for state law enforcement officers ‘‘in 

addition to’’ any other compensation, while the state law required 

a reduction in state benefits by the amount received from other 

sources. The Court, in a brief, per curiam opinion, had no difficulty 

finding the state provision preempted. 1133

Second, conflict preemption may occur when it is practically 

impossible to comply with the terms of both laws. Thus, where a 

federal agency had authorized federal savings and loan associations 

to include ‘‘due-on-sale’’ clauses in their loan instruments and 

where the State had largely prevented inclusion of such clauses, 

while it was literally possible for lenders to comply with both rules, 

the federal rule being permissive, the state regulation prevented 

the exercise of the flexibility the federal agency had conferred and 

was preempted. 1134 On the other hand, it was possible for an employer to comply both with a state law mandating leave and reinVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00206 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 269

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1135 California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272 (1987). 

Compare Cloverleaf Butter v. Patterson, 315 U.S. 148 (1942) (federal law preempts 

more exacting state standards, even though both could be complied with and state 

standards were harmonious with purposes of federal law). 1136Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963). 1137The standard is, of course, drawn from Hines v. Davidowitz, 312 U.S. 52, 

67 (1941). See also Barnett Bank of Marion County v. Nelson, 517 U.S. 25 (1996) 

(federal law empowering national banks in small towns to sell insurance preempts 

state law prohibiting banks from dealing in insurance; despite explicit preemption 

provision, state law stands as an obstacle to accomplishment of federal purpose). 1138 Jones v. Rath Packing Co., 430 U.S. 519, 532–543 (1977). 1139 487 U.S. 131 (1988). 1140Philco Aviation v. Shacket, 462 U.S. 406 (1983). 1141 520 U.S. 833 (1997). 

statement to pregnant employees and with a federal law prohibiting employment discrimination on the basis of pregnancy. 1135

Similarly, when faced with both federal and state standards on the 

ripeness of avocados, the Court discerned that the federal standard 

was a ‘‘minimum’’ one rather than a ‘‘uniform’’ one and decided 

that growers could comply with both. 1136

Third, a fruitful source of preemption is found when it is determined that the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress. 1137 Thus, the 

Court voided a state requirement that the average net weight of a 

package of flour in a lot could not be less than the net weight stated on the package. While applicable federal law permitted variations from stated weight caused by distribution losses, such as 

through partial dehydration, the State allowed no such deviation. 

Although it was possible for a producer to satisfy the federal standard while satisfying the tougher state standard, the Court discerned that to do so defeated one purpose of the federal requirement—the facilitating of value comparisons by shoppers. Because 

different producers in different situations in order to comply with 

the state standard may have to overpack flour to make up for dehydration loss, consumers would not be comparing packages containing identical amounts of flour solids. 1138 In Felder v. Casey, 1139

a state notice-of-claim statute was found to frustrate the remedial 

objectives of civil rights laws as applied to actions brought in state 

court under 42 U. S. C. §1983. A state law recognizing the validity 

of an unrecorded oral sale of an aircraft was held preempted by the 

Federal Aviation Act’s provision that unrecorded ‘‘instruments’’ of 

transfer are invalid, since the congressional purpose evidenced in 

the legislative history was to make information about an aircraft’s 

title readily available by requiring that all transfers be documented 

and recorded. 1140

In Boggs v. Boggs, 1141 the Court, 5–to–4, applied the ‘‘stands 

as an obstacle’’ test for conflict even though the statute (ERISA) 

270 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1142 Id. at 841. The dissent, id. at 854 (Justice Breyer), agreed that conflict analysis was appropriate, but he did not find that the state law achieved any result that 

ERISA required. 1143 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000). 1144 530 U.S. at 374 n.8. 

contains an express preemption section. The dispute arose in a 

community-property State, in which heirs of a deceased wife 

claimed property that involved pension-benefit assets that was left 

to them by testamentary disposition, as against a surviving second 

wife. Two ERISA provisions operated to prevent the descent of the 

property to the heirs, but under community-property rules the 

property could have been left to the heirs by their deceased mother. 

The Court did not pause to analyze whether the ERISA preemption 

provision operated to preclude the descent of the property, either 

because state law ‘‘relate[d] to’’ a covered pension plan or because 

state law had an impermissible ‘‘connection with’’ a plan, but it instead decided that the operation of the state law insofar as it conflicted with the purposes Congress had intended to achieve by 

ERISA and insofar as it ran into the two noted provisions of ERISA 

stood as an obstacle to the effectuation of the ERISA law. ‘‘We can 

begin, and in this case end, the analysis by simply asking if state 

law conflicts with the provisions of ERISA or operates to frustrate 

its objects. We hold that there is a conflict, which suffices to resolve 

the case. We need not inquire whether the statutory phrase ‘relate 

to’ provides further and additional support for the pre-emption 

claim. Nor need we consider the applicability of field preemption.’’ 1142

Similarly, the Court found it unnecessary to consider field preemption due to its holding that a Massachusetts law barring state 

agencies from purchasing goods or services from companies doing 

business with Burma imposed obstacles to the accomplishment of 

Congress’s full objectives under the federal Burma sanctions 

law. 1143 The state law was said to undermine the federal law in 

several respects that could have implicated field preemption – by 

limiting the President’s effective discretion to control sanctions, 

and by frustrating the President’s ability to engage in effective diplomacy in developing a comprehensive multilateral strategy – but 

the Court ‘‘decline[d] to speak to field preemption as a separate 

issue.’’ 1144

Also, a state law making agricultural producers’ associations 

the exclusive bargaining agents and requiring payment of service 

fees by nonmember producers was held to counter a strong federal 

policy protecting the right of farmers to join or not join such assoVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00208 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 271

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1145Michigan Canners & Freezers Ass’n v. Agricultural Marketing & Bargaining 

Bd., 467 U.S. 461 (1984). See also Nantahala Power & Light Co. v. Thornburg, 476 

U.S. 953 (1986) (state allocation of costs for purposes of setting retail electricity 

rates, by disallowing costs permitted by FERC in setting wholesale rates, frustrated 

federal regulation by possibly preventing the utility from recovering in its sales the 

costs of paying the FERC-approved wholesale rate); Capital Cities Cable, Inc. v. 

Crisp, 467 U.S. 691 (1984) (state ban on cable TV advertising frustrates federal policy in the copyright law by which cable operators pay a royalty fee for the right to 

retransmit distant broadcast signals upon agreement not to delete commercials); 

International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (damage action based on 

common law of downstream State frustrates Clean Water Act’s policies favoring permitting State in interstate disputes and favoring predictability in permit process). 1146 California v. FERC, 495 U.S. 490 (1990). The savings clause was found inapplicable on the basis of an earlier interpretation of the language in First Iowa 

Hydro-Electric Cooperative v. FPC, 328 U.S. 152 (1946). 1147Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614–616 (1991). 1148 California v. ARC America Corp., 490 U.S. 93 (1989). 1149 Hayfield Northern Ry. v. Chicago & N.W. Transp. Co., 467 U.S. 622 (1984). 

See also CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987) (federal law’s 

broad purpose of protecting shareholders as a group is furthered by state anti-takeover law); Rose v. Rose, 481 U.S. 619 (1987) (provision governing veterans’ disability 

benefits protects veterans’ families as well as veterans, hence state child-support 

order resulting in payment out of benefits is not preempted). 

ciations. 1145 And a state assertion of the right to set minimum 

stream-flow requirements different from those established by 

FERC in its licensing capacity was denied as being preempted 

under the Federal Power Act, despite language requiring deference 

to state laws ‘‘relating to the control, appropriation, use, or distribution of water.’’ 1146

Contrarily, a comprehensive federal regulation of insecticides 

and other such chemicals was held not to preempt a town ordinance that required a permit for the spraying of pesticides, there 

being no conflict between requirements. 1147 The application of state 

antitrust laws to authorize indirect purchasers to recover for all 

overcharges passed on to them by direct purchasers was held to implicate no preemption concerns, inasmuch as the federal antitrust 

laws had been interpreted as not permitting indirect purchasers to 

recover under federal law; state law may be inconsistent with federal law but in no way did it frustrate federal objectives and policies. 1148 The effect of federal policy was not strong enough to warrant a holding of preemption when a State authorized condemnation of abandoned railroad property after conclusion of an ICC proceeding permitting abandonment, although the railroad’s opportunity costs in the property had been considered in the decision on 

abandonment. 1149

Federal Versus State Labor Laws.—One group of cases, 

which has caused the Court much difficulty over the years, concerns the effect of federal labor laws on state power to govern 

labor-management relations. Although the Court some time ago 

272 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1150Throughout the ups-and-downs of federal labor-law preemption, it remains 

the rule that the Board remains preeminent and almost exclusive. See, e.g., Wisconsin Dep’t of Industry v. Gould, Inc., 475 U.S. 282 (1986) (States may not supplement Board enforcement by debarring from state contracts persons or firms that 

have violated the NLRA); Golden Gate Transit Corp. v. City of Los Angeles, 475 

U.S. 608 (1986) (City may not condition taxicab franchise on settlement of strike by 

set date, since this intrudes into collective-bargaining process protected by NLRA). 

On the other hand, the NLRA’s protection of associational rights is not so strong 

as to outweigh the Social Security Act’s policy permitting States to determine 

whether to award unemployment benefits to persons voluntarily unemployed as the 

result of a labor dispute. New York Tel. Co. v. New York Labor Dep’t, 440 U.S. 519 

(1979); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471 (1977); Baker 

v. General Motors Corp., 478 U.S. 621 (1986). 1151 Allen-Bradley Local No. 1111 v. WERB, 315 U.S. 740 (1942). 1152 United Automobile Workers v. WERB, 336 U.S. 245 (1949), overruled by 

Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976). 1153 Algoma Plywood Co. v. WERB, 336 U.S. 301 (1949). 1154 Hill v. Florida ex rel. Watson, 325 U.S. 538 (1945). More recently, the Court 

has held that Hill’s premise that the NLRA grants an unqualified right to select 

union officials has been removed by amendments prohibiting some convicted criminals from holding union office. Partly because the federal disqualification standard 

was itself dependent upon application of state law, the Court ruled that more stringent state disqualification provisions, also aimed at individuals who had been inreached a settled rule, changes in membership on the Court reopened the issue and modified the rules. 

With the enactment of the National Labor Relations Act and 

subsequent amendments, Congress declared a national policy in 

labor-management relations and established the NLRB to carry out 

that policy. 1150 It became the Supreme Court’s responsibility to determine what role state law on labor-management relations was to 

play. At first, the Court applied a test of determination whether 

the state regulation was in direct conflict with the national regulatory scheme. Thus, in one early case, the Court held that an 

order by a state board which commanded a union to desist from 

mass picketing of a factory and from assorted personal threats was 

not in conflict with the national law that had not been invoked and 

that did not touch on some of the union conduct in question. 1151 A

‘‘cease and desist’’ order of a state board implementing a state provision making it an unfair labor practice for employees to conduct 

a slowdown or to otherwise interfere with production while on the 

job was found not to conflict with federal law, 1152 while another 

order of the board was also sustained in its prohibition of the discharge of an employee under a maintenance-of-membership clause 

inserted in a contract under pressure from the War Labor Board 

and which violated state law. 1153

On the other hand, a state statute requiring business agents 

of unions operating in the State to file annual reports and to pay 

an annual fee of one dollar was voided as in conflict with federal 

law. 1154 And state statutes providing for mediation and outlawing 

ART. I—LEGISLATIVE DEPARTMENT 273

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

volved in racketeering and other criminal conduct, were not inconsistent with federal law. Brown v. Hotel Employees, 468 U.S. 491 (1984). 1155 United Automobile Workers v. O’Brien, 339 U.S. 454 (1950); Bus Employees 

v. WERB, 340 U.S. 383 (1951). See also Bus Employees v. Missouri, 374 U.S. 74 

(1963). 1156Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955); Garner v. Teamsters 

Local 776, 346 U.S. 485 (1953); Bethlehem Steel Co. v. New York Employment Relations Bd., 330 U.S. 767 (1947). See also Livadas v. Bradshaw, 512 U.S. 107 (1994) 

(finding preempted because it stood as an obstacle to the achievement of the purposes of NLRA a practice of a state labor commissioner). Of course, where Congress 

clearly specifies, the Court has had no difficulty. Thus, in the NLRA, Congress provided, 29 U.S.C. § 164(b), that state laws on the subject could override the federal 

law on union security arrangements and the Court sustained those laws. Lincoln 

Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949); AFL 

v. American Sash & Door Co., 335 U.S. 538 (1949). When Congress in the Railway 

Labor Act, 45 U.S.C.§ 152, Eleventh, provided that the federal law on union security 

was to override contrary state laws, the Court sustained that determination. Railway Employees’ Department v. Hanson, 351 U.S. 225 (1956). The Court has held 

that state courts may adjudicate questions relating to the permissibility of particular types of union security arrangements under state law even though the issue 

involves as well an interpretation of federal law., Retail Clerks Int’l Ass’n v. 

Schermerhorn, 375 U.S. 96 (1963). 1157Garner v. Teamsters Local 776, 346 U.S. 485 (1953); United Mine Workers 

v. Arkansas Flooring Co., 351 U.S. 62 (1956); Meat Cutters v. Fairlawn Meats, 353 

U.S. 20 (1957); Construction Laborers v. Curry, 371 U.S. 542 (1963). 1158San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957). 1159Guss v. Utah Labor Board, 353 U.S. 1 (1957). 1160Teamsters Union v. Oliver, 358 U.S. 283 (1959). 1161Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955). 1162Guss v. Utah Labor Board, 353 U.S. 1 (1957). The ‘‘no-man’s land’’ thus created by the difference between the reach of Congress’ commerce power and the 

NLRB’s finite resources was closed by 73 Stat. 541, 29 U.S.C. § 164(c), which authorized the States to assume jurisdiction over disputes which the Board had indicated through promulgation of jurisdictional standards that it would not treat. 1163 359 U.S. 236 (1959). 

public utility strikes were similarly voided as being in specific conflict with federal law. 1155 A somewhat different approach was noted 

in several cases in which the Court held that the federal act had 

so occupied the field in certain areas as to preclude state regulation. 1156 The latter approach was predominant through the 1950s 

as the Court voided state court action in enjoining 1157 or awarding 

damages 1158 for peaceful picketing, in awarding of relief by damages or otherwise for conduct which constituted an unfair labor 

practice under federal law, 1159 or in enforcing state antitrust laws 

so as to affect collective bargaining agreements 1160 or to bar a 

strike as a restraint of trade, 1161 even with regard to disputes over 

which the NLRB declined to assert jurisdiction because of the degree of effect on interstate commerce. 1162

In San Diego Building Trades Council v. Garmon, 1163 the

Court enunciated the rule, based on its previous decade of adjudication. ‘‘When an activity is arguably subject to § 7 or § 8 of the 

Act, the States . . . must defer to the exclusive competence of the 

274 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1164 359 U.S. at 245. The rule is followed in, e.g., Radio & Television Technicians 

v. Broadcast Service of Mobile, 380 U.S. 255 (1965); Hattiesburg Building & Trades 

Council v. Broome, 377 U.S. 126 (1964); Longshoremen’s Local 1416 v. Ariadne 

Shipping Co., 397 U.S. 195 (1970); Amalgamated Ass’n of Street Employees v. 

Lockridge, 403 U.S. 274 (1971). Cf. Nash v. Florida Industrial Comm., 389 U.S. 235 

(1967). 1165 United Automobile Workers v. WERB, 351 U.S. 266 (1956); Youngdahl v. 

Rainfair, 355 U.S. 131 (1957). 1166 United Automobile Workers v. Russell, 356 U.S. 634 (1958); United Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656 (1954). 1167 International Ass’n of Machinists v. Gonzales, 356 U.S. 617 (1958). 1168 Journeymen Local 100 v. Borden, 373 U.S. 690 (1963); Iron Workers Local 

207 v. Perko, 373 U.S. 701 (1963). Applying Perko, the Court held that a state court 

action by a supervisor alleging union interference with his contractual relationship 

with his employer is preempted by the NLRA. Local 926, Int’l Union of Operating 

Engineers v. Jones, 460 U.S. 669 (1983). 1169 373 U.S. at 697(Borden), and 705 (Perko). 1170 Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274 (1971). 

National Labor Relations Board if the danger of state interference 

with national policy is to be averted.’’ 1164

For much of the period since Garmon, the dispute in the Court 

concerned the scope of the few exceptions permitted in the 

Garmon principle. First, when picketing is not wholly peaceful but 

is attended by intimidation, violence, and obstruction of the roads 

affording access to the struck establishment, state police powers 

have been held not disabled to deal with the conduct and narrowlydrawn injunctions directed against violence and mass picketing 

have been permitted 1165 as well as damages to compensate for 

harm growing out of such activities. 1166

A 1958 case permitted a successful state court suit for reinstatement and damages for lost pay because of a wrongful expulsion, leading to discharge from employment, based on a theory that 

the union constitution and by-laws constitute a contract between 

the union and the members the terms of which can be enforced by 

state courts without the danger of a conflict between state and federal law. 1167 The Court subsequently narrowed the interpretation 

of this ruling by holding in two cases that members who alleged 

union interference with their existing or prospective employment 

relations could not sue for damages but must file unfair labor practice charges with the NLRB. 1168 Gonzales was said to be limited to 

‘‘purely internal union matters.’’ 1169 Finally, Gonzales, was abandoned in a five-to-four decision in which the Court held that a person who alleged that his union had misinterpreted its constitution 

and its collective bargaining agreement with the individual’s employer in expelling him from the union and causing him to be discharged from his employment because he was late paying his dues 

had to pursue his federal remedies. 1170 While it was not likely that 

in Gonzales, a state court resolution of the scope of duty owed the 

ART. I—LEGISLATIVE DEPARTMENT 275

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1171 403 U.S. at 296. 1172 383 U.S. 53 (1966). 1173 418 U.S. 264 (1974). 1174Farmer v. Carpenters, 430 U.S. 290 (1977). Following this case, the Court 

held that a state court action for misrepresentation and breach of contract, brought 

by replacement workers promised permanent employment when hired during a 

strike, was not preempted. The action for breach of contract by replacement workers 

having no remedies under the NLRA was found to be deeply rooted in local law and 

of only peripheral concern under the Act. Belknap, Inc. v. Hale, 463 U.S. 491 (1983). 

See also Int’l Longshoremen’s Ass’n v. Davis, 476 U.S. 380 (1986). 1175 436 U.S. 180 (1978). 

member by the union would implicate principles of federal law, 

Justice Harlan wrote for the Court, state court resolution in this 

case involved an interpretation of the contract’s union security 

clause, a matter on which federal regulation is extensive. 1171

One other exception has been based, like the violence cases, on 

the assumption that it concerns areas traditionally left to local law 

into which Congress would not want to intrude. In Linn v. Plant 

Guard Workers, 1172 the Court permitted a state court adjudication 

of a defamation action arising out of a labor dispute. And in Letter

Carriers v. Austin, 1173 the Court held that federal law preempts 

state defamation laws in the context of labor disputes to the extent 

that the State seeks to make actionable defamatory statements in 

labor disputes published without knowledge of their falsity or in 

reckless disregard of truth or falsity. 

However, a state tort action for the intentional infliction of 

emotional distress occasioned through an alleged campaign of personal abuse and harassment of a member of the union by the union 

and its officials was held not preempted by federal labor law. Federal law was not directed to the ‘‘outrageous conduct’’ alleged, and 

NLRB resolution of the dispute would neither touch upon the claim 

of emotional distress and physical injury nor award the plaintiff 

any compensation. But state court jurisdiction, in order that there 

not be interference with the federal scheme, must be premised on 

tortious conduct either unrelated to employment discrimination or 

a function of the particularly abusive manner in which the discrimination is accomplished or threatened rather than a function 

of the actual or threatened discrimination itself. 1174

A significant retrenchment of Garmon occurred in Sears, Roebuck & Co. v. Carpenters, 1175 in the context of state court assertion 

of jurisdiction over trespassory picketing. Objecting to the company’s use of nonunion work in one of its departments, the union 

picketed the store, using the company’s property, the lot area surrounding the store, instead of the public sidewalks, to walk on. 

After the union refused to move its pickets to the sidewalk, the 

company sought and obtained a state court order enjoining the 

276 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1176San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959). 1177Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 190–98 (1978). 

picketing on company property. Depending upon the union motivation for the picketing, it was either arguably prohibited or arguably 

protected by federal law, the trespassory nature of the picketing 

being one factor the NLRB would have looked to in determining at 

least the protected nature of the conduct. The Court held, however, 

that under the circumstances, neither the arguably prohibited nor 

the arguably protected rationale of Garmon was sufficient to deprive the state court of jurisdiction. 

First, as to conduct arguably prohibited by NLRA, the Court 

seemingly expanded the Garmon exception recognizing state court 

jurisdiction for conduct that touches interests ‘‘deeply rooted in 

local feeling’’ 1176 in holding that where there exists ‘‘a significant 

state interest in protecting the citizens from the challenged conduct’’ and there exists ‘‘little risk of interference with the regulatory jurisdiction’’ of the NLRB, state law is not preempted. Here, 

there was obviously a significant state interest in protecting the 

company from trespass; the second, ‘‘critical inquiry’’ was whether 

the controversy presented to the state court was identical to or different from that which could have been presented to the Board. 

The Court concluded that the controversy was different. The Board 

would have been presented with determining the motivation of the 

picketing and the location of the picketing would have been irrelevant; the motivation was irrelevant to the state court and the situs 

of the picketing was the sole inquiry. Thus, there was deemed to 

be no realistic risk of state interference with Board jurisdiction. 1177

Second, in determining whether the picketing was protected, 

the Board would have been concerned with the situs of the picketing, since under federal labor laws the employer has no absolute 

right to prohibit union activity on his property. Preemption of state 

court jurisdiction was denied, nonetheless, in this case on two 

joined bases. One, preemption is not required in those cases in 

which the party who could have presented the protection issue to 

the Board has not done so and the other party to the dispute has 

no acceptable means of doing so. In this case, the union could have 

filed with the Board when the company demanded removal of the 

pickets, but did not, and the company could not file with the Board 

at all. Two, even if the matter is not presented to the Board, preemption is called for if there is a risk of erroneous state court adjudication of the protection issue that is unacceptable, so that one 

must look to the strength of the argument that the activity is protected. While the state court had to make an initial determination 

ART. I—LEGISLATIVE DEPARTMENT 277

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1178 436 U.S. at 199–207. 1179 61 Stat. 156 (1947), 29 U.S.C. § 185(a). 1180 Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962). The state courts 

must, however, apply federal law. Local 174, Teamsters Union v. Lucas Flour Co., 

369 U.S. 95 (1962). 1181Smith v. Evening News Ass’n, 371 U.S. 195 (1962); Humphrey v. Moore, 375 

U.S. 335 (1964); Vaca v. Sipes, 386 U.S. 171 (1967). 1182See the analysis in Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 

(1988) (state tort action for retaliatory discharge for exercising rights under a state 

workers’ compensation law is not preempted by § 301, there being no required interpretation of a collective-bargaining agreement). 1183 Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985). See also Int’l Brotherhood of Electric Workers v. Hechler, 481 U.S. 851 (1987) (state-law claim that union 

breached duty to furnish employee a reasonably safe workplace preempted); United 

Steelworkers of America v. Rawson, 495 U.S. 362 (1990) (state-law claim that union 

that the trespass was not protected under federal law, the same determination the Board would have made, in the instance of 

trespassory conduct, the risk of erroneous determination is small, 

because experience shows that a trespass is far more likely to be 

unprotected than protected. 1178

Introduction of these two balancing tests into the Garmon rationale substantially complicates determining when state courts do 

not have jurisdiction, and will no doubt occasion much more litigation in state courts than has previously existed. 

Another series of cases involves not a Court-created exception 

to the Garmon rule but the applicability and interpretation of § 301 

of the Taft-Hartley Act, 1179 which authorizes suits in federal, and 

state, 1180 courts to enforce collective bargaining agreements. The 

Court has held that in enacting § 301, Congress authorized actions 

based on conduct arguably subject to the NLRA, so that the 

Garmon preemption doctrine does not preclude judicial enforcement of duties and obligations which would otherwise be within the 

exclusive jurisdiction of the NLRB so long as those duties and obligations are embodied in a collective-bargaining agreement, perhaps 

as interpreted in an arbitration proceeding. 1181

Here, too, the permissible role of state tort actions has been in 

great dispute. Generally, a state tort action as an alternative to a 

§ 301 arbitration or enforcement action is preempted if it is substantially dependent upon analysis of the terms of a collective-bargaining agreement. 1182 Thus, a state damage action for the badfaith handling of an insurance claim under a disability plan that 

was part of a collective-bargaining agreement was preempted because it involved interpretation of that agreement and because 

state enforcement would frustrate the policies of § 301 favoring 

uniform federal-law interpretation of collective-bargaining agreements and favoring arbitration as a predicate to adjudication. 1183

278 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

was negligent in inspecting a mine, the duty to inspect being created by the collective-bargaining agreement preempted). 1184 Brotherhood of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369 

(1969); Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976); Golden 

Gate Transit Corp. v. City of Los Angeles, 475 U.S. 608 (1986). And, cf. New York 

Telephone Co. v. New York Labor Dept., 440 U.S. 519 (1979). 1185Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985) (upholding 

a state requirement that health-care plans, including those resulting from collective 

bargaining, provide minimum benefits for mental-health care). 1186 United States v. Kagama, 118 U.S. 375 (1886). Rejecting the commerce 

clause as a basis for congressional enactment of a system of criminal laws for Indians living on reservations, the Court nevertheless sustained the act on the ground 

that the Federal Government had the obligation and thus the power to protect a 

weak and dependent people. Cf. United States v. Holiday, 70 U.S. (3 Wall.) 407 

(1866); United States v. Sandoval, 231 U.S. 28 (1913). This special fiduciary responsibility can also be created by statute. E.g., United States v. Mitchell, 463 U.S. 206 

(1983). 1187 16 Stat. 544, 566, 25 U.S.C. § 71. 1188 E.g., Puyallup Tribe v. Washington Game Dep’t, 433 U.S. 165 (1977); Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 

658 (1979); Montana v. United States, 450 U.S. 544 (1981). 1189McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 172 n. 7 (1973). See

also Morton v. Mancari, 417 U.S. 535, 551–553 (1974); United States v. Mazurie, 

Finally, the Court has indicated that with regard to some situations, Congress has intended to leave the parties to a labor dispute free to engage in ‘‘self-help,’’ so that conduct not subject to federal law is nonetheless withdrawn from state control. 1184 However,

the NLRA is concerned primarily ‘‘with establishing an equitable 

process for determining terms and conditions of employment, and 

not with particular substantive terms of the bargain that is struck 

when the parties are negotiating from relatively equal positions,’’ 

so States are free to impose minimum labor standards. 1185

COMMERCE WITH INDIAN TRIBES 

Congress’ power to regulate commerce ‘‘with the Indian tribes,’’ 

once almost rendered superfluous by Court decision, 1186 has now 

been resurrected and made largely the basis for informing judicial 

judgment with respect to controversies concerning the rights and 

obligations of Native Americans. Although Congress in 1871 forbade the further making of treaties with Indian tribes, 1187 cases

disputing the application of the old treaties and especially their effects upon attempted state taxation and regulation of on-reservation activities continue to be a staple of the Court’s docket. 1188 But

this clause is one of the two bases now found sufficient to empower 

Federal Government authority over Native Americans. ‘‘The source 

of federal authority over Indian matters has been the subject of 

some confusion, but it is now generally recognized that the power 

derives from federal responsibility for regulating commerce with Indian tribes and for treaty making.’’ 1189 Forsaking reliance upon 

ART. I—LEGISLATIVE DEPARTMENT 279

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

419 U.S. 544, 553–556 (1974); Bryan v. Itasca County, 426 U.S. 373, 376 n. 2 (1976); 

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980); Ramah Navajo 

School Bd. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982). 1190White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142–143 (1980); 

Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832, 

837–838 (1982). ‘‘The two barriers are independent because either, standing alone, 

can be a sufficient basis for holding state law inapplicable to activity undertaken 

on the reservation or by tribal members.’’ Id. at 837, (quoting, White Mountain, 448 

U.S. at 143). 1191 Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 

832, 838 (1982). See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 

(1983). 1192Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) (upholding 

state-court jurisdiction to hear claims of Native Americans against non-Indians involving transactions that occurred in Indian country). However, attempts by States 

to retrocede jurisdiction favorable to Native Americans may be held to be preempted. Three Affiliated Tribes v. Wold Engineering, 476 U.S. 877 (1986). 1193 Rice v. Rehner, 463 U.S. 713 (1983). 1194McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 165 (1973). 1195Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); McClanahan v. 

Arizona Tax Comm’n, 411 U.S. 164 (1973); Moe v. Confederated Salish & Kootenai 

Tribes, 425 U.S. 463 (1976); Bryan v. Itasca County, 426 U.S. 373 (1976); Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980); Montana v. Blackfeet 

other theories and rationales, the Court has established the preemption doctrine as the analytical framework within which to 

judge the permissibility of assertions of state jurisdiction over the 

Indians. However, the ‘‘semi-autonomous status’’ of Indian tribes 

erects an ‘‘independent but related’’ barrier to the exercise of state 

authority over commercial activity on an Indian reservation. 1190

Thus, the question of preemption is not governed by the standards 

of preemption developed in other areas. ‘‘Instead, the traditional 

notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts, inform the preemption analysis that governs this inquiry. . . . As a result, ambiguities in federal law should be construed generously, and federal 

pre-emption is not limited to those situations where Congress has 

explicitly announced an intention to pre-empt state activity.’’ 1191 A

corollary is that the preemption doctrine will not be applied strictly 

to prevent States from aiding Native Americans. 1192 However, the 

protective rule is inapplicable to state regulation of liquor transactions, since there has been no tradition of tribal sovereignty with 

respect to that subject. 1193

The scope of state taxing powers—the conflict of ‘‘the plenary 

power of the States over residents within their borders with the 

semi-autonomous status of Indians living on tribal reservations’’ 1194 —has been often litigated. Absent cession of jurisdiction 

or other congressional consent, States possess no power to tax Indian reservation lands or Indian income from activities carried on 

within the boundaries of the reservation. 1195 Off-reservation Indian 

280 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

Tribe, 471 U.S. 759 (1985). See also Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991). A discernable easing of the reluctance 

to find congressional cession is reflected in more recent cases. See County of Yakima 

v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251 (1992). 

1196Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–149 (1973). 

1197White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Central Machinery Co. v. Arizona Tax Comm’n, 448 U.S. 160 (1980); Ramah Navajo School 

Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982). 

1198 490 U.S. 163 (1989). 

1199 Held permissible in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). 

1200 490 U.S. at 185 (distinguishing Bracker and Ramah Navaho School Bd). 1201 County of Yakima v. Confederated Tribes & Bands of the Yakima Indian 

Nation, 502 U.S. 251, 265 (1992). To be sure, this response was in the context of 

the reading of statutory texts and giving effect to them, but the unqualified designation is suggestive. For recent tax controversies, see Oklahoma Tax Comm’n v. Sac 

& Fox Nation, 508 U.S. 114 (1993); Department of Taxation & Finance v. Milhelm 

Attea & Bros., 512 U.S. 61 (1994); Oklahoma Tax Comm’n v. Chickasaw Nation, 515 

U.S. 450 (1995). 1202 E.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). 

activities require an express federal exemption to deny state taxing 

power. 1196 Subjection to taxation of non-Indians doing business 

with Indians on the reservation involves a close analysis of the federal statutory framework, although the operating premise was for 

many years to deny state power because of its burdens upon the 

development of tribal self-sufficiency as promoted through federal 

law and its interference with the tribes’ ability to exercise their 

sovereign functions. 1197

That operating premise, however, seems to have been eroded. 

For example, in Cotton Petroleum Corp. v. New Mexico, 1198 the

Court held that, in spite of the existence of multiple taxation occasioned by a state oil and gas severance tax applied to on-reservation operations by non-Indians, which was already taxed by the 

tribe, 1199 the impairment of tribal sovereignty was ‘‘too indirect 

and too insubstantial’’ to warrant a finding of preemption. The fact 

that the State provided significant services to the oil and gas lessees justified state taxation and also distinguished earlier cases in 

which the State had ‘‘asserted no legitimate regulatory interest 

that might justify the tax.’’ 1200 Still further erosion, or relaxation, 

of the principle of construction may be found in a later case, in 

which the Court, confronted with arguments that the imposition of 

particular state taxes on Indian property on the reservation was inconsistent with self-determination and self-governance, denominated these as ‘‘policy’’ arguments properly presented to Congress 

rather than the Court. 1201

The impact on tribal sovereignty is also a prime determinant 

of relative state and tribal regulatory authority. 1202

ART. I—LEGISLATIVE DEPARTMENT 281

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce 

1203 31 U.S. (6 Pet.) 515 (1832). See also Cherokee Nation v. Georgia, 30 U.S. 

(5 Pet.) 1 (1831). Under this doctrine, tribes possess sovereign immunity from suit 

in the same way as the United States and the States do. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. United States Fidelity & Guaranty 

Co., 309 U.S. 506, 512–513 (1940). The Court has repeatedly rejected arguments to 

abolish tribal sovereign immunity or at least to curtail it. Oklahoma Tax Comm’n 

v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991). 1204 United States v. Wheeler, 435 U.S. 313 (1978) (inherent sovereign power to 

punish tribal offenders). But tribes possess no criminal authority over non-Indians. 

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). And see Duro v. Reina, 

495 U.S. 676 (1990) (tribe has no criminal jurisdiction over non-tribal Indians who 

commit crimes on the reservation; jurisdiction over members rests on consent of the 

self-governed, and absence of consent defeats jurisdiction). Compare California v. 

Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (state regulation of on-reservation bingo is preempted as basically civil/regulatory rather than criminal/prohibitory), with Brendale v. Confederated Tribes & Bands of the Yakima Indian Nation, 492 U.S. 408 (1989) (extensive ownership of land within ‘‘open areas’’ of reservation by non-members of tribe precludes application of tribal zoning within such 

areas). And see Hagen v. Utah, 510 U.S. 399 (1994). Among the fundamental attributes of sovereignty which a tribe possesses unless divested of it by federal law 

is the power to tax non-Indians entering the reservation to engage in economic activities. Washington v. Confederated Colville Tribes, 447 U.S. 134 (1980); Merrion 

v. Jicarilla Apache Tribe, 455 U.S. 130 (1982). 1205 United States v. Kagama, 118 U.S. 375, 381 (1886); United States v. Wheeler, 435 U.S. 313, 323 (1978). 1206 United States v. Wheeler, 435 U.S. 313, 323 (1978). See South Dakota v. 

Bourland, 508 U.S. 679 (1993) (abrogation of Indian treaty rights and reduction of 

sovereignty). 1207 470 U.S. 226 (1985). 1208 1 Stat. 379 (1793). 

Since Worcester v. Georgia, 1203 it has been recognized that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory. 1204 They are, 

of course, no longer possessed of the full attributes of sovereignty, 1205 having relinquished some part of it by their incorporation within the territory of the United States and their acceptance 

of its protection. By specific treaty provision, they yielded up other 

sovereign powers, and Congress has removed still others. ‘‘The sovereignty that the Indian tribes retain is of a unique and limited 

character. It exists only at the sufferance of Congress and is subject to complete defeasance.’’ 1206

In a case of major import for the settlement of Indian land 

claims, the Court ruled in County of Oneida v. Oneida Indian Nation, 1207 that an Indian tribe may obtain damages for wrongful possession of land conveyed in 1795 without the federal approval required by the Nonintercourse Act. 1208 The Act reflected the accepted principle that extinguishment of the title to land by Native 

Americans required the consent of the United States and left intact 

a tribe’s common-law remedies to protect possessory rights. The 

Court reiterated the accepted rule that enactments are construed 

liberally in favor of Native Americans and that Congress may abroVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00219 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
282 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1209 470 U.S. at 246–48. 

1210 470 U.S. at 255, 257 (Justice Stevens). 

1211 ‘‘The power of Congress over Indian affairs may be of a plenary nature; but 

it is not absolute.’’ United States v. Alcea Bank of Tillamooks, 329 U.S. 40, 54 (1946) 

(plurality opinion), (quoted with approval in Delaware Tribal Business Comm. v. 

Weeks, 430 U.S. 73, 84 (1977)). 

1212Morton v. Mancari, 417 U.S. 535, 555 (1974). The Court applied the standard to uphold a statutory classification that favored Indians over non-Indians. But 

in Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977), the same standard was used to sustain a classification that disfavored, although inadvertently, one 

group of Indians as against other groups. While Indian tribes are unconstrained by 

federal or state constitutional provisions, Congress has legislated a ‘‘bill of rights’’ 

statute covering them. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). 

1213 United States v. Sioux Nation, 448 U.S. 371 (1980). See also Solem v. Bartlett, 465 U.S. 463, 472 (1984) (there must be ‘‘substantial and compelling evidence 

of congressional intention to diminish Indian lands’’ before the Court will hold that 

a statute removed land from a reservation). 

gate Indian treaty rights or extinguish aboriginal land title only if 

it does so clearly and unambiguously. Consequently, federal approval of land-conveyance treaties containing references to earlier 

conveyances that had violated the Nonintercourse Act did not constitute ratification of the invalid conveyances. 1209 Similarly, the 

Court refused to apply the general rule for borrowing a state statute of limitations for the federal common-law action, and it rejected 

the dissent’s view that, given ‘‘the extraordinary passage of time,’’ 

the doctrine of laches should have been applied to bar the 

claim. 1210

While the power of Congress over Indian affairs is broad, it is 

not limitless. 1211 The Court has promulgated a standard of review 

that defers to the legislative judgment ‘‘[a]s long as the special 

treatment can be tied rationally to the fulfillment of Congress’ 

unique obligation toward the Indians . . .’’ 1212 A more searching review is warranted when it is alleged that the Federal Government’s 

behavior toward the Indians has been in contravention of its obligation and that it has in fact taken property from a tribe which it 

had heretofore guaranteed to the tribe, without either compensating the tribe or otherwise giving the Indians the full value of the 

land. 1213

Clause 4. The Congress shall have Power *** To establish 

an uniform Rule of Naturalization, and uniform Laws on the 

subject of Bankruptcies throughout the United States. 

ART. I—LEGISLATIVE DEPARTMENT 283

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1214 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). 1215Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 1216 60 U.S. at 417, 419. 1217Mackenzie v. Hare, 239 U.S. 299, 311 (1915). 1218 Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817); United States v. Wong 

Kim Ark, 169 U.S. 649, 701 (1898). 1219The first naturalization act, 1 Stat. 103 (1790), so provided. See 8 U.S.C. § 

1421. In Holmgren v. United States, 217 U.S. 509 (1910), it was held that Congress 

may provide for the punishment of false swearing in the proceedings in state courts. 1220Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2 Binn. (Pa.) 110 

(1809). See K. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES ch. 5 (1918). 1221 United States v. MacIntosh, 283 U.S. 605, 615 (1931); Fong Yue Ting v. 

United States, 149 U.S. 698, 707–708 (1893). A caveat to this statement is that with 

regard to persons naturalized in the United States the qualification may only be a 

condition precedent and not a condition subsequent, Schneider v. Rusk, 377 U.S. 

163 (1964), whereas persons born abroad who are made citizens at birth by statute 

if one or both of their parents are citizens are subject to conditions subsequent. Rogers v. Bellei, 401 U.S. 815 (1971). 

NATURALIZATION AND CITIZENSHIP 

Nature and Scope of Congress’ Power 

Naturalization has been defined by the Supreme Court as ‘‘the 

act of adopting a foreigner, and clothing him with the privileges of 

a native citizen.’’ 1214 In the Dred Scott case, 1215 the Court asserted 

that the power of Congress under this clause applies only to ‘‘persons born in a foreign country, under a foreign government.’’ 1216

These dicta are much too narrow to describe the power that Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. ‘‘As a government, the United 

States is invested with all the attributes of sovereignty. As it has 

the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other 

countries.’’ 1217

Congress’ power over naturalization is an exclusive power; no 

State has the power to constitute a foreign subject a citizen of the 

United States. 1218 But power to naturalize aliens may be, and was 

early, devolved by Congress upon state courts of record. 1219 And

States may confer the right of suffrage upon resident aliens who 

have declared their intention to become citizens and many did so 

until recently. 1220

Citizenship by naturalization is a privilege to be given, qualified, or withheld as Congress may determine; an individual may 

claim it as a right only upon compliance with the terms Congress 

imposes. 1221 This interpretation makes of the naturalization power 

the only power granted in § 8 of Article I that is unrestrained by 

constitutional limitations on its exercise. Thus, the first naturalization act enacted by the first Congress restricted naturalization to 

284 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1222 1 Stat. 103 (1790). 1223 Act of July 14, 1870, § 7, 16 Stat. 254, 256. 1224 Act of May 6, 1882, § 1, 22 Stat. 58. 1225 Cf. Ozawa v. United States, 260 U.S. 178 (1922); United States v. Bhagat 

Singh Thind, 261 U.S. 204 (1923); Toyota v. United States, 268 U.S. 402 (1925); 

Morrison v. California, 291 U.S. 82 (1934). The Court refused to review the only 

case in which the constitutional issue was raised and rejected. Kharaiti Ram 

Samras v. United States, 125 F. 2d 879 (C.A. 9, 1942), cert. denied, 317 U.S. 634 

(1942). 1226The Alien and Sedition Act of 1798, 1 Stat. 570, empowered the President 

to deport any alien he found dangerous to the peace and safety of the Nation. In 

1903, Congress provided for denial of naturalization and for deportation for mere 

belief in certain doctrines, i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214. 

See United States ex rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbidden views was broadened in 1918. Act of October 15, 1918, § 1, 40 Stat. 1012. 

The present law is found in 8 U.S.C. § 1424 and is discussed in The Naturalization 

of Aliens, infra. 1227 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an ‘‘honorary citizen 

of the United States.’’). 1228 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United 

States, 179 U.S. 191 (1900). 1229 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–169 (1892). 1230 United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). 1231 66 Stat. 235, 8 U.S.C. § 1401. 

‘‘free white persons[s],’’ 1222 which was expanded in 1870 so that 

persons of ‘‘African nativity and . . . descent’’ were entitled to be 

naturalized. 1223 Orientals were specifically excluded from eligibility 

in 1882, 1224 and the courts enforced these provisions without any 

indication that constitutional issues were thereby raised. 1225 These

exclusions are no longer law. Present naturalization statutes continue and expand on provisions designed to bar subversives, dissidents, and radicals generally from citizenship. 1226

Although the usual form of naturalization is through individual application and official response on the basis of general congressional rules, naturalization is not so limited. Citizenship can be 

conferred by special act of Congress, 1227 it can be conferred collectively either through congressional action, such as the naturalization of all residents of an annexed territory or of a territory made 

a State, 1228 or through treaty provision. 1229

Categories of Citizens: Birth and Naturalization 

The first sentence of § 1 of the Fourteenth Amendment contemplates two sources of citizenship and two only: birth and naturalization. 1230 This contemplation is given statutory expression in 

§ 301 of the Immigration and Nationality Act of 1952, 1231 which

itemizes those categories of persons who are citizens of the United 

States at birth; all other persons in order to become citizens must 

pass through the naturalization process. The first category merely 

tracks the language of the first sentence of § 1 of the Fourteenth 

Amendment in declaring that all persons born in the United States 

ART. I—LEGISLATIVE DEPARTMENT 285

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1232 § 301(a)(1), 8 U.S.C. § 1401(a)(1). 

1233 Rogers v. Bellei, 401 U.S. 815 (1971). 

1234 Compare Schneider v. Rusk, 377 U.S. 163 (1964); Afroyim v. Rusk, 387 U.S. 

253 (1967). It will be noted that in practically all cases persons statutorily made 

citizens at birth will be dual nationals, having the citizenship of the country where 

they were born. Congress has never required a citizen having dual nationality to 

elect at some point one and forsake the other but it has enacted several restrictive 

statutes limiting the actions of dual nationals which have occasioned much litigation. E.g., Savorgnan v. United States, 338 U.S. 491 (1950); Kawakita v. United 

States, 343 U.S. 717 (1952); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); 

Schneider v. Rusk, 377 U.S. 163 (1964); Rogers v. Bellei, 401 U.S. 815 (1971). 

1235 Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958). 

and subject to the jurisdiction thereof are citizens by birth. 1232 But

there are six other categories of citizens by birth. They are: (2) a 

person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, (3) a person born outside 

the United States of citizen parents one of whom has been resident 

in the United States, (4) a person born outside the United States 

of one citizen parent who has been continuously resident in the 

United States for one year prior to the birth and of a parent who 

is a national but not a citizen, (5) a person born in an outlying possession of the United States of one citizen parent who has been 

continuously resident in the United States or an outlying possession for one year prior to the birth, (6) a person of unknown parentage found in the United States while under the age of five unless 

prior to his twenty-first birthday he is shown not to have been born 

in the United States, and (7) a person born outside the United 

States of an alien parent and a citizen parent who has been resident in the United States for a period of ten years, provided the 

person is to lose his citizenship unless he resides continuously in 

the United States for a period of five years between his fourteenth 

and twenty-eighth birthdays. 

Subsection (7) citizens must satisfy the condition subsequent of 

five years continuous residence within the United States between 

the ages of fourteen and twenty-eight, a requirement held to be 

constitutional, 1233 which means in effect that for constitutional 

purposes, according to the prevailing interpretation, there is a difference between persons born or naturalized in, that is, within, the 

United States and persons born outside the confines of the United 

States who are statutorily made citizens. 1234 The principal difference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections. 1235

286 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1236 § 311, 66 Stat. 239 (1952), 8 U.S.C. § 1422. 1237 § 313(a), 66 Stat. 240 (1952), 8 U.S.C. § 1424(a). Whether ‘‘mere’’ membership is sufficient to constitute grounds for ineligibility is unclear. Compare Galvan

v. Press, 347 U.S. 522 (1954), with Berenyi v. Immigration Director, 385 U.S. 630 

(1967). 1238 § 313(c), 66 Stat. 241 (1952), 8 U.S.C. § 1424(c). 1239 § 316(a)(3), 66 Stat. 242, 8 U.S.C. § 1427(a)(3). 1240 § 101(f)(1), 66 Stat. 172, 8 U.S.C. § 1101(f)(1). 1241 § 101(f)(2), 66 Stat. 172, 8 U.S.C. § 1101(f)(2). 1242 § 212(a)(11), 66 Stat. 182, 8 U.S.C. § 1182(a)(11). 1243 § 101(f)(4) and (5), 66 Stat. 172, 8 U.S.C. § 1101(f)(4) and (5). 1244 § 101(f)(7) and (8), 66 Stat. 172, 8 U.S.C. § 1101(f)(7) and (8). 1245 § 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), barring aliens afflicted with 

‘‘psychopathic personality,’’ a congressional euphemism including homosexuality. 

Boutilier v. Immigration and Naturalization Service, 387 U.S. 118 (1967). 

The Naturalization of Aliens 

Although, as has been noted, throughout most of our history 

there were significant racial and ethnic limitations upon eligibility 

for naturalization, the present law prohibits any such discrimination.

‘‘The right of a person to become a naturalized citizen of the 

United States shall not be denied or abridged because of race or 

sex or because such person is married.’’ 1236 However, any person 

‘‘who advocates or teaches, or who is a member of or affiliated with 

any organization that advocates or teaches . . . opposition to all organized government,’’ or ‘‘who advocates or teaches or who is a 

member of or affiliated with any organization that advocates or 

teaches the overthrow by force or violence or other unconstitutional 

means of the Government of the United States’’ or who is a member of or affiliated with the Communist Party, or other communist 

organizations, or other totalitarian organizations is ineligible. 1237

These provisions moreover are ‘‘applicable to any applicant for naturalization who at any time within a period of ten years immediately preceding the filing of the petition for naturalization or 

after such filing and before taking the final oath of citizenship is, 

or has been found to be, within any of the classes enumerated 

within this section, notwithstanding that at the time the petition 

is filed he may not be included within such classes.’’ 1238

Other limitations on eligibility are also imposed. Eligibility 

may turn upon the decision of the responsible officials whether the 

petitioner is of ‘‘good moral character.’’ 1239 The immigration and 

nationality laws themselves include a number of specific congressional determinations that certain persons do not possess ‘‘good 

moral character,’’ including persons who are ‘‘habitual drunkards,’’ 1240 adulterers, 1241 polygamists or advocates of polygamy, 1242

gamblers, 1243 convicted felons, 1244 and homosexuals. 1245 In order to 

petition for naturalization, an alien must have been resident for at 

ART. I—LEGISLATIVE DEPARTMENT 287

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1246 § 337(a), 66 Stat. 258 (1952), 8 U.S.C. § 1448(a). In United States v. 

Schwimmer, 279 U.S. 644 (1929), and United States v. MacIntosh, 283 U.S. 605 

(1931), a divided Court held that clauses (3) and (4) of the oath, as then prescribed, 

required the candidate for naturalization to be willing to bear arms for the United 

States, thus disqualifying conscientious objectors. These cases were overturned, 

purely as a matter of statutory interpretation by Girouard v. United States, 328 

U.S. 61 (1946), and Congress codified the result, 64 Stat. 1017 (1950), as it now appears in the cited statute. 1247 § 340(a), 66 Stat. 260 (1952), 8 U.S.C. § 1451(a). See Kungys v. United 

States, 485 U.S. 759 (1988) (badly fractured Court opinion dealing with the statutory requirements in a denaturalization proceeding under this section). And see 

Johannessen v. United States, 225 U.S. 227 (1912). Congress has imposed no time 

bar applicable to proceedings to revoke citizenship, so that many years after naturalization has taken place a naturalized citizen remains subject to divestment upon 

proof of fraud. Costello v. United States, 365 U.S. 265 (1961); Polites v. United 

States, 364 U.S. 426 (1960); Knauer v. United States, 328 U.S. 654 (1946); 

Fedorenko v. United States, 449 U. S. 490 (1981). 1248 340(c), 66 Stat. 261 (1952), 8 U.S.C. § 1451(c). The time period had previously been five years. 

least five years and to have possessed ‘‘good moral character’’ for 

all of that period. 

The process of naturalization culminates in the taking in open 

court of an oath ‘‘(1) to support the Constitution of the United 

States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or 

citizen; (3) to support and defend the Constitution and the laws of 

the United States against all enemies, foreign and domestic; (4) to 

bear true faith and allegiance to the same; and (5) (A) to bear arms 

on behalf of the United States when required by the law, or (B) to 

perform noncombatant service in the Armed Forces of the United 

States when required by the law, or (C) to perform work of national 

importance under civilian direction when required by law.’’ 1246

Any naturalized person who takes this oath with mental reservations or conceals or misrepresents beliefs, affiliations, and conduct, which under the law disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the 

purpose, to have his certificate of naturalization cancelled. 1247

Moreover, if within a year of his naturalization a person joins an 

organization or becomes in any way affiliated with one which was 

a disqualification for naturalization if he had been a member at the 

time, the fact is made prima facie evidence of his bad faith in taking the oath and grounds for instituting proceedings to revoke his 

admission to citizenship. 1248

Rights of Naturalized Persons 

Chief Justice Marshall early stated in dictum that ‘‘[a] naturalized citizen . . . becomes a member of the society, possessing all the 

288 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1249Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 737, 827 (1824). 

One must be aware, however, that this language does not appear in any case having 

to do with citizenship or naturalization or the rights of naturalized citizens and its 

force may be therefore questioned. Compare Afroyim v. Rusk, 387 U.S. 253, 261 

(1967) (Justice Black for the Court: ‘‘a mature and well-considered dictum . . .’’), 

with id. at 275–276 (Justice Harlan dissenting: the dictum, ‘‘cannot have been intended to reach the question of citizenship.’’). The issue in Osborn was the right of 

the Bank to sue in federal court. Osborn had argued that the fact that the bank 

was chartered under the laws of the United States did not make any legal issue 

involving the bank one arising under the laws of the United States for jurisdictional 

purposes; to argue the contrary, Osborn contended, was like suggesting that the fact 

that persons were naturalized under the laws of Congress meant such persons had 

an automatic right to sue in federal courts, unlike natural-born citizens. The quoted 

language of Marshall’s rejects this attempted analogy. 1250 328 U.S. 654, 658 (1946). 1251 Johannessen v. United States, 225 U.S. 227 (1912); Knauer v. United 

States, 328 U.S. 654 (1946); Costello v. United States, 365 U.S. 265 (1961). 1252See 8 U.S.C. § 1451(c). 1253 231 U.S. 9 (1913). The provision has been modified to reduce the period to 

one year. 8 U.S.C. § 1451(d). 1254 377 U.S. 163 (1964). 

rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize 

Congress to enlarge or abridge those rights. The simple power of 

the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.’’ 1249 A similar idea was expressed in Knauer

v. United States. 1250 ‘‘Citizenship obtained through naturalization 

is not a second-class citizenship. . . . [It] carries with it the privilege 

of full participation in the affairs of our society, including the right 

to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government.’’

Despite these dicta, it is clear that particularly in the past but 

currently as well a naturalized citizen has been and is subject to 

requirements not imposed on native-born citizens. Thus, as we 

have noted above, a naturalized citizen is subject at any time to 

have his good faith in taking the oath of allegiance to the United 

States inquired into and to lose his citizenship if lack of such faith 

is shown in proper proceedings. 1251 And the naturalized citizen 

within a year of his naturalization will join a questionable organization at his peril. 1252 In Luria v. United States, 1253 the Court sustained a statute making prima facie evidence of bad faith a naturalized citizen’s assumption of residence in a foreign country within 

five years after the issuance of a certificate of naturalization. But 

in Schneider v. Rusk, 1254 the Court voided a statute that provided 

that a naturalized citizen should lose his United States citizenship 

if following naturalization he resided continuously for three years 

in his former homeland. ‘‘We start,’’ Justice Douglas wrote for the 

ART. I—LEGISLATIVE DEPARTMENT 289

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1255 377 U.S. at 165. 1256While there is no equal protection clause specifically applicable to the Federal Government, it is established that the due process clause of the Fifth Amendment forbids discrimination in much the same manner as the equal protection 

clause of the Fourteenth Amendment. 1257Schneider v. Rusk, 377 U.S. 163, 168–169 (1964). 1258 Afroyim v. Rusk, 387 U.S. 253 (1967). 1259 401 U.S. 815 (1971). 1260 401 U.S. at 835–36. 

Court, ‘‘from the premise that the rights of citizenship of the native-born and of the naturalized person are of the same dignity and 

are coextensive. The only difference drawn by the Constitution is 

that only the ‘natural born’ citizen is eligible to be President.’’ 1255

The failure of the statute, the Court held, was that it 

impermissibly distinguished between native-born and naturalized 

citizens, denying the latter the equal protection of the laws. 1256

‘‘This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable and bear less allegiance 

to this country than do the native-born. This is an assumption that 

is impossible for us to make. . . . A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The 

discrimination aimed at naturalized citizens drastically limits their 

rights to live and work abroad in a way that other citizens may. 

It creates indeed a second-class citizenship. Living abroad, whether 

the citizen be naturalized or native-born, is no badge of lack of allegiance and in no way evidences a voluntary renunciation of nationality and allegiance.’’ 1257

The Schneider equal protection rationale was abandoned in the 

next case in which the Court held that the Fourteenth Amendment 

forbade involuntary expatriation of naturalized persons. 1258 But in 

Rogers v. Bellei, 1259 the Court refused to extend this holding to persons statutorily naturalized at birth abroad because one of their 

parents was a citizen and similarly refused to apply Schneider.

Thus, one who failed to honor a condition subsequent had his citizenship revoked. ‘‘Neither are we persuaded that a condition subsequent in this area impresses one with ‘second-class citizenship.’ 

That cliche is too handy and too easy, and, like most cliches, can 

be misleading. That the condition subsequent may be beneficial is 

apparent in the light of the conceded fact that citizenship was fully 

deniable. The proper emphasis is on what the statute permits him 

to gain from the possible starting point of noncitizenship, not on 

what he claims to lose from the possible starting point of full citizenship to which he has no constitutional right in the first place. 

His citizenship, while it lasts, although conditional, is not ‘secondclass.’’’ 1260

290 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1261 At least, there is a difference so long as Afroyim prevents Congress from 

making expatriation the consequence of certain acts when done by natural born citizens as well. 1262Perkins v. Elg, 307 U.S. 325 (1939). The qualifying phrase ‘‘absent a treaty 

or statute . . .’’ is error now, so long as Afroyim remains in effect. But note Rogers 

v. Bellei, 401 U.S. 815, 832–833 (1971). 1263Governeur v. Robertson, 24 U.S. (11 Wheat.) 332 (1826); Osterman v. Baldwin, 73 U.S. (6 Wall.) 116 (1867); Manuel v. Wulff, 152 U.S. 505 (1894). 1264Shanks v. DuPont, 28 U.S. (3 Pet.) 242, 246 (1830). 1265 2 J. KENT, COMMENTARIES 49–50 (1827). 1266 J. TENBROEK, ANTI-SLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 71–

94 (1951); see generally J. ROCHE, THE EARLY DEVELOPMENT OF UNITED STATES

CITIZENSHIP (1949).

It is not clear where the progression of cases has left us in this 

area. Clearly, naturalized citizens are fully entitled to all the rights 

and privileges of those who are citizens because of their birth here. 

But it seems equally clear that with regard to retention of citizenship, naturalized citizens are not in the secure position of citizens 

born here. 1261

On another point, the Court has held that, absent a treaty or 

statute to the contrary, a child born in the United States who is 

taken during minority to the country of his parents’ origin, where 

his parents resume their former allegiance, does not thereby lose 

his American citizenship and that it is not necessary for him to 

make an election and return to the United States. 1262 On still another point, it has been held that naturalization is so far retroactive as to validate an acquisition of land prior to naturalization 

as to which the alien was under a disability. 1263

Expatriation: Loss of Citizenship 

The history of the right of expatriation, voluntarily on the part 

of the citizen or involuntarily under duress of statute, is shadowy 

in United States constitutional law. Justice Story, in the course of 

an opinion, 1264 and Chancellor Kent, in his writings, 1265 accepted

the ancient English doctrine of perpetual and unchangeable allegiance to the government of one’s birth, a citizen being precluded 

from renouncing his allegiance without permission of that government. The pre-Civil War record on the issue is so vague because 

there was wide disagreement on the basis of national citizenship in 

the first place, with some contending that national citizenship was 

derivative from state citizenship, which would place the power of 

providing for expatriation in the state legislatures, and with others 

contending for the primacy of national citizenship, which would 

place the power in Congress. 1266 The citizenship basis was settled 

by the first sentence of § 1 of the Fourteenth Amendment, but expatriation continued to be a muddled topic. An 1868 statute specifically recognized ‘‘the right of expatriation’’ by individuals, but it 

ART. I—LEGISLATIVE DEPARTMENT 291

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1267 Act of July 27, 1868, 15 Stat. 223. While the Act’s preamble rhetorically proclaims the ‘‘natural and inherent right of all people’’ to expatriate themselves, its 

title is ‘‘An Act concerning the Rights of American Citizens in foreign States’’ and 

its operative parts are concerned with that subject. It has long been taken, however, 

as a general proclamation of United States recognition of the right of United States 

citizens to expatriate themselves. Mackenzie v. Hare, 239 U.S. 299, 309 (1915); 

Mandoli v. Acheson, 344 U.S. 133, 135–136 (1952). Cf. Savorgnan v. United States, 

338 U.S. 491, 498 n. 11 (1950). 1268The Enrollment Act of March 3, 1865, § 21, 13 Stat. 487, 490. The language 

of the section appears more consistent with a deprivation of civil rights than of citizenship. Note also that § 14 of the Wade-Davis Bill, pocket-vetoed by President Lincoln, specifically provided that any person holding office in the Confederate Government ‘‘is hereby declared not to be a citizen of the United States.’’ 6 J. RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 223 (1899). 1269 Nationality Act of 1940, 54 Stat. 1169. 1270 Id. 1271 58 Stat. 746 (1944). 1272 68 Stat. 1146 (1954). 1273 34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922). 1274Perkins v. Elg, 307 U.S. 325, 334 (1939). 1275Mackenzie v. Hare, 239 U.S. 299, 309, 311–312 (1915); Savorgnan v. United 

States, 338 U.S. 491, 506 (1950). 1276 34 Stat. 1228 (1907). 

was directed to affirming the right of foreign nationals to expatriate themselves and to become naturalized United States citizens. 1267 An 1865 law provided for the forfeiture of the ‘‘rights of 

citizenship’’ of draft-dodgers and deserters, but whether the statute 

meant to deprive such persons of citizenship or of their civil rights 

is unclear. 1268 Beginning in 1940, however, Congress did enact 

laws designed to strip of their citizenship persons who committed 

treason, 1269 deserted the armed forces in wartime, 1270 left the 

country to evade the draft, 1271 or attempted to overthrow the Government by force or violence. 1272 In 1907, Congress provided that 

female citizens who married foreign citizens were to have their citizenship held ‘‘in abeyance’’ while they remained wedded but to be 

entitled to reclaim it when the marriage was dissolved. 1273

About the simplest form of expatriation, the renunciation of 

citizenship by a person, there is no constitutional difficulty. ‘‘Expatriation is the voluntary renunciation or abandonment of nationality and allegiance.’’ 1274 But while the Court has hitherto insisted 

on the voluntary character of the renunciation, it has sustained the 

power of Congress to prescribe conditions and circumstances the 

voluntary entering into of which constitutes renunciation; the person need not intend to renounce so long as he intended to do what 

he did in fact do. 1275

The Court first encountered the constitutional issue of forced 

expatriation in the rather anomalous form of the statute, 1276 which

placed in limbo the citizenship of any American female who married a foreigner. Sustaining the statute, the Court relied on the 

292 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1277Mackenzie v. Hare, 239 U.S. 299 (1915). 1278See generally 8 U.S.C. §§ 1481–1489. Among the acts for which loss of citizenship is prescribed are (1) obtaining naturalization in a foreign state, (2) taking 

an oath of allegiance to a foreign state, (3) serving in the armed forces of a foreign 

state without authorization and with consequent acquisition of foreign nationality, 

(4) assuming public office under the government of a foreign state for which only 

nationals of that state are eligible, (5) voting in an election in a foreign state, (6) 

formally renouncing citizenship before a United states foreign service officer abroad, 

(7) formally renewing citizenship within the United States in time of war, subject 

to approval of the Attorney General, (8) being convicted and discharged from the 

armed services for desertion in wartime, (9) being convicted of treason or of an attempt to overthrow forcibly the Government of the United States, (10) fleeing or remaining outside the United States in wartime or a proclaimed emergency in order 

to evade military service, and (11) residing abroad if a naturalized citizen, subject 

to certain exceptions, for three years in the country of his birth or in which he was 

formerly a national or for five years in any other foreign state. Several of these sections have been declared unconstitutional, as explained in the text. 1279Perez v. Brownell, 356 U.S. 44 (1958). For the Court, Justice Frankfurter 

sustained expatriation as a necessary exercise of the congressional power to regulate 

the foreign relations of the United States to prevent the embarrassment and potential for trouble inherent in our nationals voting in foreign elections. Justice Whittaker dissented because he saw no problem of embarrassment or potential trouble 

if the foreign state permitted aliens or dual nationals to vote. Chief Justice Warren 

and Justices Black and Douglas denied that expatriation is within Congress’ power 

to prescribe for an act, like voting, which is not necessarily a sign of intention to 

relinquish citizenship. 1280Trop v. Dulles, 356 U.S. 86 (1958). Chief Justice Warren for himself and 

three Justices held that expatriation for desertion was a cruel and unusual punishment proscribed by the Eighth Amendment. Justice Brennan concurred on the 

ground of a lack of the requisite relationship between the statute and Congress’ war 

powers. For the four dissenters, Justice Frankfurter argued that Congress had 

power to impose loss of citizenship for certain activity and that there was a rational 

nexus between refusal to perform a duty of citizenship and deprivation of citizenship. Justice Frankfurter denied that the penalty was cruel and unusual punishcongressional foreign relations power exercised in order to prevent 

the development of situations that might entangle the United 

States in embarrassing or hostile relationships with a foreign country. Noting too the fictional merging of identity of husband and 

wife, the Court thought it well within congressional power to attach certain consequences to these actions, despite the woman’s 

contrary intent and understanding at the time she entered the relationship. 1277

Beginning in 1958, the Court had a running encounter with 

the provisions of the 1952 Immigration and Nationality Act, which 

prescribed expatriation for a lengthy series of actions. 1278 In 1958, 

a five-to-four decision sustained the power to divest a dual national 

of his United States citizenship because he had voted in an election 

in the other country of which he was a citizen. 1279 But at the same 

time, another five-to-four decision, in which a majority rationale 

was lacking, struck down punitive expatriation visited on persons 

convicted by court-martial of desertion from the armed forces in 

wartime. 1280 In the next case, the Court struck down another puniVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00230 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 293

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

ment and denied that it was punishment at all ‘‘in any valid constitutional sense.’’ 

Id. at 124. 1281Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). For the Court Justice 

Goldberg held that penal expatriation effectuated solely by administrative determination violated due process because of the absence of procedural safeguards. Justices Black and Douglas continued to insist Congress could not deprive a citizen of 

his nationality at all. Justice Harlan for the dissenters thought the statute a valid 

exercise of Congress’ war powers but the four dissenters divided two-to-two on the 

validity of a presumption spelled out in the statute. 1282Schneider v. Rusk, 377 U.S. 163 (1964). 1283 387 U.S. 253 (1967). 1284 Justice Harlan, for himself and Justices Clark, Stewart, and White, argued 

in dissent that there was no evidence that the drafters of the Fourteenth Amendment had at all the intention ascribed to them by the majority. He would have 

found in Afroyim’s voluntary act of voting in a foreign election a voluntary renunciation of United States citizenship. 387 U.S. at 268. 1285 Rogers v. Bellei, 401 U.S. 815 (1971). The three remaining Afroyim dissenters plus Chief Justice Burger and Justice Blackmun made up the majority, the 

three remaining Justices of the Afroyim majority plus Justice Marshall made up the 

dissenters. The continuing vitality of Afroyim was assumed in Vance v. Terrazas, 

444 U. S. 252 (1980), in which a divided Court upheld a congressionally-imposed 

standard of proof, preponderance of evidence, by which to determine whether one 

had by his actions renounced his citizenship. 

tive expatriation visited on persons who, in time of war or emergency, leave or remain outside the country in order to evade military service. 1281 And in the following year, the Court held unconstitutional a section of the law that expatriated a naturalized citizen 

who returned to his native land and resided there continuously for 

a period of three years. 1282

The cases up to this point had lacked a common rationale and 

would have seemed to permit even punitive expatriation under the 

proper circumstances. But, in Afroyim v. Rusk, 1283 a five-to-four 

majority overruled the 1958 decision permitting expatriation for 

voting in a foreign election and announced a constitutional rule 

against all but purely voluntary renunciation of United States citizenship. The majority ruled that the first sentence of § 1 of the 

Fourteenth Amendment constitutionally vested citizenship in every 

person ‘‘born or naturalized in the United States’’ and that Congress was powerless to take that citizenship away. 1284 The continuing vitality of this decision was called into question by another 

five-to-four decision in 1971, which technically distinguished 

Afroyim in upholding a congressionally-prescribed loss of citizenship visited upon a person who was statutorily naturalized ‘‘outside’’ the United States, and held not within the protection of the 

first sentence of § 1 of the Fourteenth Amendment. 1285 Thus, while 

Afroyim was distinguished, the tenor of the majority opinion was 

hostile to its holding, and it may be that in a future case it will 

be overruled. 

294 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1286 Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581, 

603, 604 (1889); see also Fong Yue Ting v. United States, 149 U.S. 698, 705 (1893); 

The Japanese Immigrant Case (Yamataya v. Fisher), 189 U.S. 86 (1903); United 

States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Bugajewitz v. Adams, 228 

U.S. 585 (1913); Hines v. Davidowitz, 312 U.S. 52 (1941); Kleindienst v. Mandel, 408 

U. S. 753 (1972). In Galvan v. Press, 347 U.S. 522, 530–531 (1954), Justice Frankfurter for the Court wrote: ‘‘[M]uch could be said for the view, were we writing on 

a clean slate, that the Due Process Clause qualifies the scope of political discretion 

heretofore recognized as belonging to Congress in regulating the entry and deportation of aliens. . . . But the slate is not clean. As to the extent of the power of Congress under review, there is not merely ‘a page of history,’ . . . but a whole volume. . . . [T]hat the formulation of these policies is entrusted exclusively to Congress 

has become about as firmly imbedded in the legislative and judicial tissues of our 

body politic as any aspect of our government.’’ Although the issue of racial discrimination was before the Court in Jean v. Nelson, 472 U.S. 846 (1985), in the context 

of parole for undocumented aliens, the Court avoided it, holding that statutes and 

regulations precluded INS considerations of race or national origin. Justices Marshall and Brennan, in dissent, argued for reconsideration of the long line of precedents and for constitutional restrictions on the Government. Id. at 858. That there 

exists some limitation upon exclusion of aliens is one permissible interpretation of 

Reagan v. Abourezk, 484 U.S. 1 (1987), affg. by an equally divided Court, 785 F.2d 

1043 (D.C.Cir. 1986), holding that mere membership in the Communist Party could 

not be used to exclude an alien on the ground that his activities might be prejudicial 

to the interests of the United States. 

The power of Congress to prescribe the rules for exclusion or expulsion of aliens 

is a ‘‘fundamental sovereign attribute’’ which is ‘‘of a political character and therefore subject only to narrow judicial review.’’ Hampton v. Mow Sun Wong, 426 U.S. 

88, 101 n. 21 (1976); Mathews v. Diaz, 426 U.S. 67, 81–82 (1976); Fiallo v. Bell, 430 

U.S. 787, 792 (1977). Although aliens are ‘‘an identifiable class of persons,’’ who 

aside from the classification at issue ‘‘are already subject to disadvantages not 

shared by the remainder of the community,’’ Hampton v. Mow Sun Wong, 426 U.S. 

The issue, then, of the constitutionality of congressionally-prescribed expatriation must be taken as unsettled. 

ALIENS

The Power of Congress to Exclude Aliens 

The power of Congress ‘‘to exclude aliens from the United 

States and to prescribe the terms and conditions on which they 

come in’’ is absolute, being an attribute of the United States as a 

sovereign nation. ‘‘That the government of the United States, 

through the action of the legislative department, can exclude aliens 

from its territory is a proposition which we do not think open to 

controversy. Jurisdiction over its own territory to that extent is an 

incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. . . . The United States, in their 

relation to foreign countries and their subjects or citizens, are one 

nation, invested with powers which belong to independent nations, 

the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory.’’ 1286

ART. I—LEGISLATIVE DEPARTMENT 295

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

at 102, Congress may treat them in ways that would violate the equal protection 

clause if a State should do it. Diaz, (residency requirement for welfare benefits); 

Fiallo, (sex and illegitimacy classifications). Nonetheless in Mow Sun Wong, 426 

U.S. at 103, the Court observed that when the Federal Government asserts an overriding national interest as justification for a discriminatory rule that would violate 

the equal protection clause if adopted by a State, due process requires that it be 

shown that the rule was actually intended to serve that interest. The case struck 

down a classification that the Court thought justified by the interest asserted but 

that had not been imposed by a body charged with effectuating that interest. 

See Vergara v. Hampton, 581 F.2d 1281 (C.A. 7, 1978). See Sale v. Haitian Centers 

Council, 509 U.S. 155 (1993) (construing statutes and treaty provisions restrictively 

to affirm presidential power to interdict and seize fleeing aliens on high seas to prevent them from entering U.S. waters). 1287 Act of June 25, 1798, 1 Stat. 570. The Act was part of the Alien and Sedition Laws and authorized the expulsion of any alien the President deemed dangerous. 1288 Act of March 3, 1875, 18 Stat. 477. 1289 22 Stat. 214 (1882) (excluding idiots, lunatics, convicts, and persons likely 

to become public charges); 23 Stat. 332 (1885), and 24 Stat. 414 (1887) (regulating 

importing cheap foreign labor); 26 Stat. 1084 (1891) (persons suffering from certain 

diseases, those convicted of crimes involving moral turpitude, paupers, and polygamists); 32 Stat. 1213 (1903) (epileptics, insane persons, professional beggars, and 

anarchists); 34 Stat. 898 (1907) (feeble-minded, children unaccompanied by parents, 

persons suffering with tuberculosis, and women coming to the United States for 

prostitution or other immoral purposes). 1290 Act of May 6, 1882, 22 Stat. 58. 1291 Act of December 17, 1943, 57 Stat. 600. 1292 Act of May 26, 1924, 43 Stat. 153. 1293 Act of October 3, 1965, P.L. 89–236, 79 Stat. 911. 1294 Act of June 27, 1952, P.L. 82–414, 66 Stat. 163, 8 U.S.C. §§ 1101 et seq. 

as amended. 1295The list of excludable aliens may be found at 8 U.S.C. § 1182. The list has 

been modified and classified by category in recent amendments. 

Except for the Alien Act of 1798, 1287 Congress went almost a 

century without enacting laws regulating immigration into the 

United States. The first such statute, in 1875, barred convicts and 

prostitutes 1288 and was followed by a series of exclusions based on 

health, criminal, moral, economic, and subversion considerations. 1289 Another important phase was begun with passage of the 

Chinese Exclusion Act in 1882, 1290 which was not repealed until 

1943. 1291 In 1924, Congress enacted into law a national origins 

quota formula which based the proportion of admittable aliens on 

the nationality breakdown of the 1920 census, which, of course, 

was heavily weighed in favor of English and northern European 

ancestry. 1292 This national origins quota system was in effect until 

it was repealed in 1965. 1293 The basic law remains the Immigration and Nationality Act of 1952, 1294 which, with certain revisions 

in 1965 and later piecemeal alterations, regulates who may be admitted and under what conditions; the Act, it should be noted, contains a list of 31 excludable classes of aliens. 1295

Numerous cases underscore the sweeping nature of the powers 

of the Federal Government to exclude aliens and to deport by adVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00233 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
296 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1296 338 U.S. 537 (1950). See also Shaughnessy v. United States ex rel. Mezei, 

345 U.S. 206 (1953), in which the Court majority upheld the Government’s power 

to exclude on the basis of information it would not disclose a permanent resident 

who had gone abroad for about nineteen months and was seeking to return on a 

new visa. But the Court will frequently read the applicable statutes and regulations 

strictly against the Government for the benefit of persons sought to be excluded. 

Cf. Delgadillo v. Carmichael, 332 U.S. 388 (1947); Kwong Hai Chew v. Colding, 344 

U.S. 590 (1953); Rosenburg v. Fleuti, 374 U.S. 449 (1963). 1297 Under the War Brides Act of 1945, 59 Stat. 659. 1298 338 U.S. at 543. 1299 E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966). 1300Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948); De Canas v. 

Bica, 424 U.S. 351, 358 n.6 (1976); Toll v. Moreno, 458 U.S. 1, 12–13 (1982). See

also Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson, 403 U.S. 

365, 376–380 (1971). 1301 E.g., Heim v. McCall, 239 U.S. 175 (1915); Ohio ex rel. Clarke v. Deckebach, 

274 U.S. 392 (1927); Sugarman v. Dougall, 413 U.S. 634, 646–649 (1973); De Canas 

v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). 

ministrative process persons in excluded classes. For example, in 

United States ex rel. Knauff v. Shaughnessy, 1296 an order of the Attorney General excluding, on the basis of confidential information 

he would not disclose, a wartime bride, who was prima facie entitled to enter the United States, 1297 was held to be unreviewable by 

the courts. Nor were regulations on which the order was based invalid as an undue delegation of legislative power. ‘‘Normally Congress supplies the conditions of the privilege of entry into the 

United States. But because the power of exclusion of aliens is also 

inherent in the executive department of the sovereign, Congress 

may in broad terms authorize the executive to exercise the power, 

e.g., as was done here, for the best interest of the country during 

a time of national emergency. Executive officers may be entrusted 

with the duty of specifying the procedures for carrying out the congressional intent.’’ 1298 However, when Congress has spelled out the 

basis for exclusion or deportation, the Court remains free to interpret the statute and review the administration of it and to apply 

it, often in a manner to mitigate the effects of the law on aliens. 1299

Congress’ power to admit aliens under whatever conditions it 

lays down is exclusive of state regulation. The States ‘‘can neither 

add to nor take from the conditions lawfully imposed by Congress 

upon admission, naturalization and residence of aliens in the 

United States or the several states. State laws which impose discriminatory burdens upon the entrance or residence of aliens lawfully within the United States conflict with this constitutionally derived federal power to regulate immigration, and have accordingly 

been held invalid.’’ 1300 This principle, however, has not precluded 

all state regulations dealing with aliens. 1301 The power of Congress 

to legislate with respect to the conduct of alien residents is a concomitant of its power to prescribe the terms and conditions on 

ART. I—LEGISLATIVE DEPARTMENT 297

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1302Purporting to enforce this distinction, the Court voided a statute, which, in 

prohibiting the importation of ‘‘any alien woman or girl for the purpose of prostitution,’’ provided that whoever should keep for the purpose of prostitution ‘‘any alien 

woman or girl within three years after she shall have entered the United States’’ 

should be deemed guilty of a felony. Keller v. United States, 213 U.S. 138 (1909). 1303 54 Stat. 670, 8 U.S.C. §§ 1301–1306. 1304See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941). 1305 312 U.S. 52 (1941). 1306 312 U.S. at 68. But see De Canas v. Bica, 424 U.S. 351 (1976), in which the 

Court upheld a state law prohibiting an employer from hiring aliens not entitled to 

lawful residence in the United States. The Court wrote that States may enact legislation touching upon aliens coexistent with federal laws, under regular preemption 

standards, unless the nature of the regulated subject matter precludes the conclusion or unless Congress has unmistakably ordained the impermissibility of state 

law.1307Graham v. Richardson, 403 U.S. 365 (1971). See also Sugarman v. Dougall, 

413 U.S. 634 (1973); In re Griffiths, 413 U.S. 717 (1973); Cabell v. Chavez-Salido, 

454 U.S. 432 (1982). 

which they may enter the United States, to establish regulations 

for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and 

regulations to executive officers. It is not a power to lay down a 

special code of conduct for alien residents or to govern their private 

relations. 1302

Yet Congress is empowered to assert a considerable degree of 

control over aliens after their admission to the country. By the 

Alien Registration Act of 1940, Congress provided that all aliens in 

the United States, fourteen years of age and over, should submit 

to registration and finger printing and willful failure to comply was 

made a criminal offense against the United States. 1303 This Act, 

taken in conjunction with other laws regulating immigration and 

naturalization, has constituted a comprehensive and uniform system for the regulation of all aliens. 1304

An important benefit of this comprehensive regulation accruing 

to the alien is that it precludes state regulation that may well be 

more severe and burdensome. For example, in Hines v. 

Davidowitz, 1305 the Court voided a Pennsylvania law requiring the 

annual registration and fingerprinting of aliens but going beyond 

the subsequently-enacted federal law to require acquisition of an 

alien identification card that had to be carried at all times and to 

be exhibited to any police officer upon demand and to other licensing officers upon applications for such things as drivers’ licenses. 

The Court did not squarely hold the State incapable of having such 

a law in the absence of federal law but appeared to lean in that 

direction. 1306 Another decision voided a Pennsylvania law limiting 

those eligible to welfare assistance to citizens and an Arizona law 

prescribing a fifteen-year durational residency period before an 

alien could be eligible for welfare assistance. 1307 Congress had proVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00235 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
298 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1308 8 U.S.C. §§ 1182(a)(8), 1182(a)(15), 1251(a)(8). 1309See 42 U.S.C. § 1981, applied in Takahashi v. Fish & Game Comm’n, 334 

U.S. 410, 419 n.7 (1948). 1310See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), 

where the Court noted that ‘‘[w]hatever the procedure authorized by Congress is, 

it is due process as far as an alien denied entry is concerned.’’ 1311Kimm v. Rosenberg, 363 U.S. 405 (1960). 1312 Abel v. United States, 362 U.S. 217, 229 (1960). 1313Marcello v. Bonds, 349 U.S. 302 (1955). 1314 Carlson v. Landon, 342 U.S. 524, 540 (1952). 1315Wong Yang Sung v. McGrath, 339 U.S. 33, 49 (1950). See discussion of 

aliens’ due process rights under the Fifth Amendment, Aliens: Entry and Deportation.1316 8 U.S.C. § 1252(b)(2). 1317 8 U.S.C. § 1252(b)(1). 1318 8 U.S.C. § 1252(b)(3). 1319 Carlson v. Landon, 342 U.S. 524 (1952). In Reno v. Flores, 507 U.S. 292 

(1993), the Court upheld an INS regulation providing for the ongoing detention of 

juveniles apprehended on suspicion of being deportable, unless parents, close relatives, or legal guardians were available to accept release, as against a substantive 

due process attack. 

vided, Justice Blackmun wrote for a unanimous Court, that persons who were likely to become public charges could not be admitted to the United States and that any alien who became a public 

charge within five years of his admission was to be deported unless 

he could show that the causes of his economic situation arose after 

his entry. 1308 Thus, in effect Congress had declared that lawfully 

admitted resident aliens who became public charges for causes 

arising after their entry were entitled to the full and equal benefit 

of all laws for the security of persons and property and the States 

were disabled from denying aliens these benefits. 1309

Deportation

Unlike the exclusion proceedings, 1310 deportation proceedings 

afford the alien a number of constitutional rights: a right against 

self-incrimination, 1311 protection against unreasonable searches 

and seizures, 1312 guarantees against ex post facto laws, bills of attainder, and cruel and unusual punishment, 1313 a right to bail, 1314

a right to procedural due process, 1315 a right to counsel, 1316 a right 

to notice of charges and hearing, 1317 as well as a right to cross-examine. 1318

Notwithstanding these guarantees, the Supreme Court has 

upheld a number of statutory deportation measures as not unconstitutional. The Internal Security Act of 1950, in authorizing the 

Attorney General to hold in custody, without bail, aliens who are 

members of the Communist Party of the United States, pending determination as to their deportability, is not unconstitutional. 1319

Nor was it unconstitutional to deport under the Alien Registration 

ART. I—LEGISLATIVE DEPARTMENT 299

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1320 54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C. 

§ 1251 et seq. 1321 Carlson v. Landon, 342 U.S. 524 (1952). 1322 8 U.S.C. § 1252(e). 1323 United States v. Spector, 343 U.S. 169 (1952). 1324 Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 

(1999). 1325 Adams v. Storey, 1 Fed. Cas. 141, 142 (No. 66) (C.C.D.N.Y. 1817). 1326 2 Stat. 19 (1800). 1327 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1113 (1833). 1328 186 U.S. 181 (1902). 

Act of 1940 1320 a legally resident alien because of membership in 

the Communist Party, although such membership ended before the 

enactment of the Act. Such application of the Act did not make it 

ex post facto, being but an exercise of the power of the United 

States to terminate its hospitality ad libitum. 1321 And a statutory 

provision 1322 making it a felony for an alien against whom a specified order of deportation is outstanding ‘‘to willfully fail or refuse 

to make timely application for travel or other documents necessary 

to his departure’’ was not on its face void for ‘‘vagueness.’’ 1323 An

alien unlawfully in the country ‘‘has no constitutional right to assert selective enforcement as a defense against his deportation.’’ 1324

BANKRUPTCY

Persons Who May Be Released From Debt 

In an early case on circuit, Justice Livingston suggested that 

inasmuch as the English statutes on the subject of bankruptcy 

from the time of Henry VIII down had applied only to traders it 

might ‘‘well be doubted, whether an act of Congress subjecting to 

such a law every description of persons within the United States, 

would comport with the spirit of the powers vested in them in relation to this subject.’’ 1325 Neither Congress nor the Supreme Court 

has ever accepted this limited view. The first bankruptcy law, 

passed in 1800, departed from the English practice to the extent 

of including bankers, brokers, factors and underwriters as well as 

traders. 1326 Asserting that the narrow scope of the English statutes 

was a mere matter of policy, which by no means entered into the 

nature of such laws, Justice Story defined bankruptcy legislation in 

the sense of the Constitution as a law making provisions for cases 

of persons failing to pay their debts. 1327

This interpretation has been ratified by the Supreme Court. In 

Hanover National Bank v. Moyses, 1328 it held valid the Bankruptcy 

Act of 1898, which provided that persons other than traders might 

become bankrupts and that this might be done on voluntary petition. The Court has given tacit approval to the extension of the 

300 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1329 Continental Bank v. Rock Island Ry., 294 U.S. 648, 670 (1935). 1330 United States v. Bekins, 304 U.S. 27 (1938), distinguishing Ashton v. Cameron County Dist., 298 U.S. 513 (1936). 1331Perry v. Commerce Loan Co., 383 U.S. 392 (1966). 1332 In re Reiman, 20 Fed. Cas. 490 (No. 11,673) (D.C.S.D.N.Y. 1874), cited with 

approval in Continental Bank v. Rock Island Ry., 294 U.S. 648, 672 (1935). 1333 Continental Bank v. Rock Island Ry., 294 U.S. 648 (1935). 1334Wright v. Vinton Branch, 300 U.S. 440 (1937); Adair v. Bank of America 

Ass’n, 303 U.S. 350 (1938). 1335Wright v. Union Central Ins. Co., 304 U.S. 502 (1938). 

bankruptcy laws to cover practically all classes of persons and corporations, 1329 including even municipal corporations 1330 and wageearning individuals. The Bankruptcy Act has, in fact been amended 

to provide a wage-earners’ extension plan to deal with the unique 

problems of debtors who derive their livelihood primarily from salaries or commissions. In furthering the implementation of this plan, 

the Supreme Court has held that a wage earner may make use of 

it, notwithstanding the fact he has been previously discharged in 

bankruptcy within the last six years. 1331

Liberalization of Relief Granted and Expansion of the 

Rights of the Trustee 

As the coverage of the bankruptcy laws has been expanded, the 

scope of the relief afforded to debtors has been correspondingly enlarged. The act of 1800, like its English antecedents, was designed 

primarily for the benefit of creditors. Beginning with the act of 

1841, which opened the door to voluntary petitions, rehabilitation 

of the debtor has become an object of increasing concern to Congress. An adjudication in bankruptcy is no longer requisite to the 

exercise of bankruptcy jurisdiction. In 1867, the debtor for the first 

time was permitted, either before or after adjudication of bankruptcy, to propose terms of composition that would become binding 

upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. This measure was held constitutional, 1332 as were later acts, which provided for the reorganization 

of corporations that are insolvent or unable to meet their debts as 

they mature, 1333 and for the composition and extension of debts in 

proceedings for the relief of individual farmer debtors. 1334

Nor is the power of Congress limited to adjustment of the 

rights of creditors. The Supreme Court has also ruled that the 

rights of a purchaser at a judicial sale of the debtor’s property are 

within reach of the bankruptcy power, and may be modified by a 

reasonable extension of the period for redemption from such 

sale. 1335 Moreover, the Court expanded the bankruptcy court’s 

power over the property of the estate by affording the trustee afVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00238 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 301

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1336Katchen v. Landy, 382 U.S. 323 (1966). 1337 Bank of Marin v. England, 385 U.S. 99, 103 (1966). 1338 382 U.S. 266 (1965). Cf. United States v. Vermont, 337 U.S. 351 (1964). 1339 Act of July 5, 1966, 80 Stat. 269, 11 U.S.C. § 501, repealed. 1340 382 U.S., 271–72. 1341 Reading Co. v. Brown, 391 U.S. 471 (1968). 1342 Joint Industrial Bd. v. United States, 391 U.S. 224 (1968). 1343 Nicholas v. United States, 384 U.S. 678 (1966). 1344 294 U.S. 648 (1935). 1345 294 U.S. at 671. 1346 11 U.S.C. § 344. 1347Louisville Bank v. Radford, 295 U.S. 555, 589, 602 (1935). 

firmative relief on counterclaim against a creditor filing a claim 

against the estate. 1336

Underlying most Court decisions and statutes in this area is 

the desire to achieve equity and fairness in the distribution of the 

bankrupt’s funds. 1337 United States v. Speers, 1338 codified by an 

amendment to the Bankruptcy Act, 1339 furthered this objective by 

strengthening the position of the trustee as regards the priority of 

a federal tax lien unrecorded at the time of bankruptcy. 1340 The

Supreme Court has held, in other cases dealing with the priority 

of various creditors’ claims, that claims arising from the tort of the 

receiver is an ‘‘actual and necessary’’ cost of administration, 1341

that benefits under a nonparticipating annuity plan are not wages 

and are therefore not given priority, 1342 and that when taxes are 

allowed against a bankrupt’s estate, penalties due because of the 

trustee’s failure to pay the taxes incurred while operating a bankrupt business are also allowable. 1343 The Court’s attitude with regard to these and other developments is perhaps best summarized 

in the opinion in Continental Bank v. Rock Island Ry., 1344 where

Justice Sutherland wrote, on behalf of a unanimous court: ‘‘[T]hese 

acts, far-reaching though they may be, have not gone beyond the 

limit of Congressional power; but rather have constituted extensions into a field whose boundaries may not yet be fully revealed.’’ 1345

Constitutional Limitations on the Bankruptcy Power 

In the exercise of its bankruptcy powers, Congress must not 

transgress the Fifth and Tenth Amendments. The Bankruptcy Act 

provides that oral testimony cannot be used in violation of the 

bankrupt’s right against self-incrimination. 1346 Congress may not 

take from a creditor specific property previously acquired from a 

debtor, nor circumscribe the creditor’s right to such an unreasonable extent as to deny him due process of law; 1347 this principle, 

however, is subject to the Supreme Court’s finding that a bankruptcy court has summary jurisdiction for ordering the surrender 

302 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1348Katchen v. Landy, 382 U.S. 323, 327–340 (1966). 1349 Chicago Title and Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120 (1937). 1350 In re Klein, 42 U.S. (1 How.) 277 (1843); Hanover National Bank v. Moyses, 

186 U.S. 181 (1902). 1351 Ashton v. Cameron County Dist., 298 U.S. 513 (1936). See also United

States v. Bekins, 304 U.S. 27 (1938). 1352 United States v. Bekins, 304 U.S. 27 (1938). 1353Stellwagon v. Clum, 245 U.S. 605 (1918); Hanover National Bank v. Moyses, 

186 U.S. 181, 190 (1902). 1354 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 

(1982). And see Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) (Seventh 

Amendment right to jury trial in bankruptcy cases). 

of voidable preferences when the trustee successfully counterclaims 

to a claim filed by the creditor receiving such preferences. 1348

Since Congress may not supersede the power of a State to determine how a corporation shall be formed, supervised, and dissolved, a corporation, which has been dissolved by a decree of a 

state court, may not file a petition for reorganization under the 

Bankruptcy Act. 1349 But Congress may impair the obligation of a 

contract and may extend the provisions of the bankruptcy laws to 

contracts already entered into at the time of their passage. 1350 Although it may not subject the fiscal affairs of a political subdivision 

of a State to the control of a federal bankruptcy court, 1351 Congress

may empower such courts to entertain petitions by taxing agencies 

or instrumentalities for a composition of their indebtedness where 

the State has consented to the proceeding and the federal court is 

not authorized to interfere with the fiscal or governmental affairs 

of such petitioners. 1352 Congress may recognize the laws of the 

State relating to dower, exemption, the validity of mortgages, priorities of payment and similar matters, even though such recognition 

leads to different results from State to State; 1353 for although 

bankruptcy legislation must be uniform, the uniformity required is 

geographic, not personal. 

The power of Congress to vest the adjudication of bankruptcy 

claims in entities not having the constitutional status of Article III 

federal courts is unsettled. At least, it may not give to non-Article 

III courts the authority to hear state law claims made subject to 

federal jurisdiction only because of their relevance to a bankruptcy 

proceeding. 1354

Constitutional Status of State Insolvency Laws: Preemption 

Prior to 1898, Congress exercised the power to establish ‘‘uniform laws on the subject of bankruptcy’’ only intermittently. The 

first national bankruptcy law was not enacted until 1800 and was 

repealed in 1803; the second was passed in 1841 and was repealed 

two years later; a third was enacted in 1867 and repealed in 

ART. I—LEGISLATIVE DEPARTMENT 303

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1355 Hanover National Bank v. Moyses, 186 U.S. 181, 184 (1902). 

1356Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 199 (1819); Ogden v. 

Saunders, 25 U.S. (12 Wheat.) 213, 368 (1827). 

1357Tua v. Carriere, 117 U.S. 201 (1886); Butler v. Goreley, 146 U.S. 303, 314 

(1892).

1358Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819). 

1359Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 368 (1827); Denny v. Bennett, 

128 U.S. 489, 498 (1888); Brown v. Smart, 145 U.S. 454 (1892). 

1360 In re Watts and Sachs, 190 U.S. 1, 27 (1903); International Shoe Co. v. 

Pinkus, 278 U.S. 261, 264 (1929). 

1361 International Shoe Co. v. Pinkus, 278 U.S. 261, 265 (1929). 

1362Kalb v. Feurerstein, 308 U.S. 433 (1940). 

1878. 1355 Thus, during the first eighty-nine years under the Constitution, a national bankruptcy law was in existence only sixteen 

years altogether. Consequently, the most important issue of interpretation that arose during that period concerned the effect of the 

clause on state law. 

The Supreme Court ruled at an early date that in the absence 

of congressional action the States may enact insolvency laws, since 

it is not the mere existence of the power but rather its exercise 

that is incompatible with the exercise of the same power by the 

States. 1356 Later cases settled further that the enactment of a national bankruptcy law does not invalidate state laws in conflict 

therewith but serves only to relegate them to a state of suspended 

animation with the result that upon repeal of the national statute 

they again come into operation without re-enactment. 1357

A State is, of course, without power to enforce any law governing bankruptcies which impairs the obligation of contracts, 1358

extends to persons or property outside its jurisdiction, 1359 or conflicts with the national bankruptcy laws. 1360 Giving effect to the 

policy of the federal statute, the Court has held that a state statute 

regulating this distribution of property of an insolvent was suspended by that law, 1361 and that a state court was without power 

to proceed with pending foreclosure proceedings after a farmerdebtor had filed a petition in federal bankruptcy court for a composition or extension of time to pay his debts. 1362 A state court injunction ordering a defendant to clean up a waste-disposal site was 

held to be a ‘‘liability on a claim’’ subject to discharge under the 

bankruptcy law, after the State had appointed a receiver to take 

charge of the defendant’s property and comply with the injuncVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00241 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
304 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies 

1363Ohio v. Kovacs, 469 U.S. 274 (1985). Compare Kelly v. Robinson, 479 U.S. 

36 (1986) (restitution obligations imposed as conditions of probation in state criminal actions are nondischargeable in proceedings under chapter 7), with Pennsylvania Dep’t of Public Welfare v. Davenport, 495 U.S. 552 (1990) (restitution obligations imposed as condition of probation in state criminal actions are dischargeable 

in proceedings under chapter 13). 

1364Stellwagon v. Clum, 245 U.S. 605, 615 (1918). 

1365 Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Public Safety, 

369 U.S. 153 (1962); Perez v. Campbell, 402 U.S. 637 (1971). 

1366 Reitz v. Mealey, 314 U.S. 33, 37 (1941); Kesler v. Department of Public Safety, 369 U.S. 153, 169–174 (1962). 

1367Perez v. Campbell, 402 U.S. 637, 644–648, 651–654 (1971). The dissenters, 

Justice Blackmun for himself and Chief Justice Burger and Justices Harlan and 

Stewart, argued, in line with the Reitz and Kesler majorities, that the provision at 

issue was merely an attempt to assure driving competence and care on the part of 

its citizens and had only tangential effect upon bankruptcy. 

1368 New York v. Irving Trust Co., 288 U.S. 329 (1933). 

tion. 1363 A state law governing fraudulent transfers was found to 

be compatible with the federal law. 1364

Substantial disagreement has marked the actions of the Justices in one area, however, resulting in three five-to-four decisions 

first upholding and then voiding state laws providing that a discharge in bankruptcy was not to relieve a judgment arising out of 

an automobile accident upon pain of suffering suspension of his 

driver’s license. 1365 The state statutes were all similar enactments 

of the Uniform Motor Vehicle Safety Responsibility Act, which authorizes the suspension of the license of any driver who fails to satisfy a judgment against himself growing out of a traffic accident; 

a section of the law specifically provides that a discharge in bankruptcy will not relieve the debtor of the obligation to pay and the 

consequence of license suspension for failure to pay. In the first two 

decisions, the Court majorities decided that the object of the state 

law was not to see that such judgments were paid but was rather 

a device to protect the public against irresponsible driving. 1366 The

last case rejected this view and held that the Act’s sole emphasis 

was one of providing leverage for the collection of damages from 

drivers and as such was in fact intended to and did frustrate the 

purpose of the federal bankruptcy law, the giving of a fresh start 

unhampered by debt. 1367

If a State desires to participate in the assets of a bankruptcy, 

it must submit to the appropriate requirements of the bankruptcy 

court with respect to the filing of claims by a designated date. It 

cannot assert a claim for taxes by filing a demand at a later 

date. 1368

ART. I—LEGISLATIVE DEPARTMENT 305

Sec. 8—Powers of Congress Cls. 5 and 6—Money 

1369McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 1370 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869). 1371 75 U.S. at 548. 1372 National Bank v. United States, 101 U.S. 1 (1880). 1373 Nortz v. United States, 249 U.S. 317 (1935). 1374Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 549 (1871); 

Juilliard v. Greenman, 110 U.S. 421, 449 (1884). 1375Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871). 1376 Norman v. Baltimore & O. R.R., 294 U.S. 240 (1935). 

Clauses 5 and 6. The Congress shall have Power *** To 

coin Money, regulate the Value thereof, and of foreign Coin, 

and fix the Standard of Weights and Measures. 

*** To provide for the Punishment of counterfeiting the Securities and current Coin of the United States. 

FISCAL AND MONETARY POWERS OF CONGRESS 

Coinage, Weights, and Measures 

The power ‘‘to coin money’’ and ‘‘regulate the value thereof’’ 

has been broadly construed to authorize regulation of every phase 

of the subject of currency. Congress may charter banks and endow 

them with the right to issue circulating notes, 1369 and it may restrain the circulation of notes not issued under its own authority. 1370 To this end it may impose a prohibitive tax upon the circulation of the notes of state banks 1371 or of municipal corporations. 1372 It may require the surrender of gold coin and of gold certificates in exchange for other currency not redeemable in gold. A 

plaintiff who sought payment for the gold coin and certificates thus 

surrendered in an amount measured by the higher market value of 

gold was denied recovery on the ground that he had not proved 

that he would suffer any actual loss by being compelled to accept 

an equivalent amount of other currency. 1373 Inasmuch as ‘‘every 

contract for the payment of money, simply, is necessarily subject to 

the constitutional power of the government over the currency, 

whatever that power may be, and the obligation of the parties is, 

therefore, assumed with reference to that power,’’ 1374 the Supreme 

Court sustained the power of Congress to make Treasury notes 

legal tender in satisfaction of antecedent debts, 1375 and, many 

years later, to abrogate the clauses in private contracts calling for 

payment in gold coin, even though such contracts were executed before the legislation was passed. 1376 The power to coin money also 

imports authority to maintain such coinage as a medium of exVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00243 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
306 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 5 and 6—Money 

1377Ling Su Fan v. United States, 218 U.S. 302 (1910). 1378 United States v. Marigold, 50 U.S. (9 How.), 560, 568 (1850). 1379Fox v. Ohio, 46 U.S. (5 How.) 410 (1847). 1380 United States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850). 1381 Id. 1382 Baender v. Barnett, 255 U.S. 224 (1921). 1383Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 536 (1871). 1384McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819); Osborn v. Bank 

of the United States, 22 U.S. (9 Wheat.) 737, 861 (1824); Farmers’ & Mechanics’ 

Nat. Bank v. Dearing, 91 U.S. 29, 33 (1875); Smith v. Kansas City Title Co., 255 

U.S. 180, 208 (1921). 1385Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 540–547 (1871). 

change at home, and to forbid its diversion to other uses by defacement, melting or exportation. 1377

Punishment of Counterfeiting 

In its affirmative aspect, this clause has been given a narrow 

interpretation; it has been held not to cover the circulation of counterfeit coin or the possession of equipment susceptible of use for 

making counterfeit coin. 1378 At the same time, the Supreme Court 

has rebuffed attempts to read into this provision a limitation upon 

either the power of the States or upon the powers of Congress 

under the preceding clause. It has ruled that a State may punish 

the issuance of forged coins. 1379 On the ground that the power of 

Congress to coin money imports ‘‘the correspondent and necessary 

power and obligation to protect and to preserve in its purity this 

constitutional currency for the benefit of the nation,’’ 1380 it has sustained federal statutes penalizing the importation or circulation of 

counterfeit coin, 1381 or the willing and conscious possession of dies 

in the likeness of those used for making coins of the United 

States. 1382 In short, the above clause is entirely superfluous. Congress would have had the power it purports to confer under the 

necessary and proper clause; and the same is the case with the 

other enumerated crimes it is authorized to punish. The enumeration was unnecessary and is not exclusive. 1383

Borrowing Power Versus Fiscal Power 

Usually the aggregate of the fiscal and monetary powers of the 

National Government—to lay and collect taxes, to borrow money 

and to coin money and regulate the value thereof—have reinforced 

each other, and, cemented by the necessary and proper clause, 

have provided a secure foundation for acts of Congress chartering 

banks and other financial institutions, 1384 or making its treasury 

notes legal tender in the payment of antecedent debts. 1385 But in 

1935, the opposite situation arose—one in which the power to regulate the value of money collided with the obligation incurred in the 

exercise of the power to borrow money. By a vote of eight-to-one 

ART. I—LEGISLATIVE DEPARTMENT 307

Sec. 8—Powers of Congress Cl. 7—Post Office 

1386Perry v. United States, 294 U.S. 330, 353 (1935). 1387 294 U.S. at 361. 1388Free v. Bland, 369 U.S. 663 (1962). 1389 United States v. Railroad Bridge Co., 27 Fed. Cas. 686 (No. 16,114) 

(C.C.N.D. Ill. 1855). 

the Supreme Court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to 

effectuate the monetary policies of Congress. 1386 In a concurring 

opinion, Justice Stone declined to join with the majority in suggesting that ‘‘the exercise of the sovereign power to borrow money 

on credit, which does not override the sovereign immunity from 

suit, may nevertheless preclude or impede the exercise of another 

sovereign power, to regulate the value of money; or to suggest that 

although there is and can be no present cause of action upon the 

repudiated gold clause, its obligation is nevertheless, in some manner and to some extent, not stated, superior to the power to regulate the currency which we now hold to be superior to the obligation of the bonds.’’ 1387 However, with a view to inducing purchase 

of savings bonds, the sale of which is essential to successful management of the national debt, Congress is competent to authorize 

issuance of regulations creating a right of survivorship in such 

bonds registered in co-ownership form, and such regulations preempt provisions of state law prohibiting married couples from utilizing the survivorship privilege whenever bonds are paid out of 

community property. 1388

Clause 7. The Congress shall have Power *** To establish 

Post Offices and post roads. 

POSTAL POWER 

‘‘Establish’’

The great question raised in the early days with reference to 

the postal clause concerned the meaning to be given to the word 

‘‘establish’’—did it confer upon Congress the power to construct 

post offices and post roads, or only the power to designate from existing places and routes those that should serve as post offices and 

post roads? As late as 1855, Justice McLean stated that this power 

‘‘has generally been considered as exhausted in the designation of 

roads on which the mails are to be transported,’’ and concluded 

that neither under the commerce power nor the power to establish 

post roads could Congress construct a bridge over a navigable 

water. 1389 A decade earlier, however, the Court, without passing 

upon the validity of the original construction of the Cumberland 

Road, held that being ‘‘charged . . . with the transportation of the 

308 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 7—Post Office 

1390Searight v. Stokes, 44 U.S. (3 How.) 151, 166 (1845). 1391 91 U.S. 367 (1876). 1392 Ex parte Jackson, 96 U.S. 727, 732 (1878). See United States Postal Serv. 

v. Council of Greenburgh Civic Assn’s, 453 U.S. 114 (1981), in which the Court sustained the constitutionality of a law making it unlawful for persons to use, without 

payment of a fee (postage), a letterbox which has been designated an ‘‘authorized 

depository’’ of the mail by the Postal Service. 1393Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845). 1394 In re Debs, 158 U.S. 564, 599 (1895). 1395 Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835). 

mails,’’ Congress could enter a valid compact with the State of 

Pennsylvania regarding the use and upkeep of the portion of the 

road lying in the State. 1390 The debate on the question was terminated in 1876 by the decision in Kohl v. United States, 1391 sustaining a proceeding by the United States to appropriate a parcel 

of land in Cincinnati as a site for a post office and courthouse. 

Power To Protect the Mails 

The postal powers of Congress embrace all measures necessary 

to insure the safe and speedy transit and prompt delivery of the 

mails. 1392 And not only are the mails under the protection of the 

National Government, they are in contemplation of law its property. This principle was recognized by the Supreme Court in 1845 

in holding that wagons carrying United States mail were not subject to a state toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States. 1393 Half a century later 

it was availed of as one of the grounds on which the national executive was conceded the right to enter the national courts and demand an injunction against the authors of any wide-spread disorder interfering with interstate commerce and the transmission of 

the mails. 1394

Prompted by the efforts of Northern anti-slavery elements to 

disseminate their propaganda in the Southern States through the 

mails, President Jackson, in his annual message to Congress in 

1835, suggested ‘‘the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern 

States, through the mail, of incendiary publications intended to instigate the slaves to insurrection.’’ In the Senate, John C. Calhoun 

resisted this recommendation, taking the position that it belonged 

to the States and not to Congress to determine what is and what 

is not calculated to disturb their security. He expressed the fear 

that if Congress might determine what papers were incendiary, 

and as such prohibit their circulation through the mail, it might 

also determine what were not incendiary and enforce their circulation. 1395 On this point his reasoning would appear to be vindicated 

ART. I—LEGISLATIVE DEPARTMENT 309

Sec. 8—Powers of Congress Cl. 7—Post Office 

1396 Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888); Leisy v. Hardin, 135 

U.S. 100 (1890). 1397 96 U.S. 727 (1878). 1398 96 U.S. at 732. 1399Public Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson 

v. Read Magazine, 333 U.S. 178 (1948). 1400 194 U.S. at 506. 1401Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913). 1402 229 U.S. at 316. 1403 United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407 

(1921). See also Hannegan v. Esquire, 327 U.S. 146 (1946), denying the Post Office 

the right to exclude Esquire Magazine from the mails on grounds of the poor taste 

and vulgarity of its contents. 

by such decisions as those denying the right of the States to prevent the importation of alcoholic beverages from other States. 1396

Power To Prevent Harmful Use of the Postal Facilities 

In 1872, Congress passed the first of a series of acts to exclude 

from the mails publications designed to defraud the public or corrupt its morals. In the pioneer case of Ex parte Jackson, 1397 the

Court sustained the exclusion of circulars relating to lotteries on 

the general ground that ‘‘the right to designate what shall be carried necessarily involves the right to determine what shall be excluded.’’ 1398 The leading fraud order case, decided in 1904, held to 

the same effect. 1399 Pointing out that it is ‘‘an indispensable adjunct to a civil government,’’ to supply postal facilities, the Court 

restated its premise that the ‘‘legislative body in thus establishing 

a postal service may annex such conditions . . . as it chooses.’’ 1400

Later cases first qualified these sweeping assertions and then 

overturned them, holding Government operation of the mails to be 

subject to constitutional limitations. In upholding requirements 

that publishers of newspapers and periodicals seeking second-class 

mailing privileges file complete information regarding ownership, 

indebtedness, and circulation and that all paid advertisements in 

the publications be marked as such, the Court emphasized that 

these provisions were reasonably designed to safeguard the secondclass privilege from exploitation by mere advertising publications. 1401 Chief Justice White warned that the Court by no means 

intended to imply that it endorsed the Government’s ‘‘broad contentions concerning . . . the classification of the mails, or by the way 

of condition . . .’’ 1402 Again, when the Court sustained an order of 

the Postmaster General excluding from the second-class privilege a 

newspaper he had found to have published material in contravention of the Espionage Act of 1917, the claim of absolute power in 

Congress to withhold the privilege was sedulously avoided. 1403

310 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 7—Post Office 

1404 381 U.S. 301 (1965). 1405 381 U.S. at 305, quoting Justice Holmes in United States ex rel. Milwaukee 

Publishing Co. v. Burleson, 255 U.S. 407, 437 (1921) (dissenting opinion): ‘‘The 

United States may give up the Post Office when it sees fit, but while it carries it 

on the use of the mails is almost as much a part of free speech as the right to use 

our tongues... .’’ And see Blount v. Rizzi, 400 U.S. 410, 416 (1971) (quoting same 

language). But for a different perspective on the meaning and application of the 

Holmes language, see United States Postal Service v. Council of Greenburgh Civic 

Assn’s, 453 U.S. 114, 127 n.5 (1981), although there too the Court observed that the 

postal power may not be used in a manner that abridges freedom of speech or press. 

Id. at 126. Notice, too, that first-class mail is protected against opening and inspection, except in accordance with the Fourth Amendment. Ex parte Jackson, 96 U.S. 

727, 733 (1878); United States v. van Leeuwen, 397 U.S. 249 (1970). But see United

States v. Ramsey, 431 U.S. 606 (1977) (border search). 1406Lamont v. Postmaster General, 381 U.S. 301, 306–307 (1965). And see id.

at 308 (concurring opinion). Note that this was the first federal statute ever voided 

as in conflict with the First Amendment. 1407 Rowan v. Post Office Department, 397 U.S. 728 (1970). 1408 Blount v. Rizzi, 400 U.S. 410 (1971). 1409 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e. 

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General, 1404 in which it struck down 

a statute authorizing the Post Office to detain mail it determined 

to be ‘‘communist political propaganda’’ and to forward it to the addressee only if he notified the Post Office he wanted to see it. Noting that Congress was not bound to operate a postal service, the 

Court observed that while it did, it was bound to observe constitutional guarantees. 1405 The statute violated the First Amendment 

because it inhibited the right of persons to receive any information 

which they wished to receive. 1406

On the other hand, a statute authorizing persons to place their 

names on a list in order to reject receipt of obscene or sexually suggestive materials is constitutional, because no sender has a right 

to foist his material on any unwilling receiver. 1407 But, as in other 

areas, postal censorship systems must contain procedural guarantees sufficient to ensure prompt resolution of disputes about the 

character of allegedly objectionable material consistently with the 

First Amendment. 1408

Exclusive Power as an Adjunct to Other Powers 

In the cases just reviewed, it was attempted to close the mails 

to communication which were deemed to be harmful. A much 

broader power of exclusion was asserted in the Public Utility Holding Company Act of 1935. 1409 To induce compliance with the regulatory requirements of that act, Congress denied the privilege of 

using the mails for any purpose to holding companies that failed 

to obey that law, irrespective of the character of the material to be 

carried. Viewing the matter realistically, the Supreme Court treatVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00248 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 311

Sec. 8—Powers of Congress Cl. 7—Post Office 

1410 Electric Bond Co. v. SEC, 303 U.S. 419 (1938). 1411 303 U.S. at 442. 1412Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1878). 1413 Illinois Cent. R.R. v. Illinois, 163 U.S. 142 (1896). 1414Gladson v. Minnesota, 166 U.S. 427 (1897). 1415Price v. Pennsylvania R.R., 113 U.S. 218 (1895); Martin v. Pittsburgh & 

Lake Erie R.R., 203 U.S. 284 (1906). 1416 Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945). 1417 United States v. Kirby, 74 U.S. (7 Wall.) 482 (1869). 

ed this provision as a penalty. While it held this statute constitutional because the regulations whose infractions were thus penalized were themselves valid, 1410 it declared that ‘‘Congress may not 

exercise its control over the mails to enforce a requirement which 

lies outside its constitutional province. . . .’’ 1411

State Regulations Affecting the Mails 

In determining the extent to which state laws may impinge 

upon persons or corporations whose services are utilized by Congress in executing its postal powers, the task of the Supreme Court 

has been to determine whether particular measures are consistent 

with the general policies indicated by Congress. Broadly speaking, 

the Court has approved regulations having a trivial or remote relation to the operation of the postal service, while disallowing those 

constituting a serious impediment to it. Thus, a state statute, 

which granted to one company an exclusive right to operate a telegraph business in the State, was found to be incompatible with a 

federal law, which, in granting to any telegraph company the right 

to construct its lines upon post roads, was interpreted as a prohibition of state monopolies in a field Congress was entitled to regulate 

in the exercise of its combined power over commerce and post 

roads. 1412

An Illinois statute which, as construed by the state courts, required an interstate mail train to make a detour of seven miles in 

order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this 

clause. 1413 But a Minnesota statute requiring intrastate trains to 

stop at county seats was found to be unobjectionable. 1414

Local laws classifying postal workers with railroad employees 

for the purpose of determining a railroad’s liability for personal injuries, 1415 or subjecting a union of railway mail clerks to a general 

law forbidding any ‘‘labor organization’’ to deny any person membership because of his race, color or creed, 1416 have been held not 

to conflict with national legislation or policy in this field. Despite 

the interference pro tanto with the performance of a federal function, a State may arrest a postal employee charged with murder 

while he is engaged in carrying out his official duties, 1417 but it 

312 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1418 Johnson v. Maryland, 254 U.S. 51 (1920). 1419Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 17, 18 (1829). 1420Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 656, 658 (1834). 1421 Cf. Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). 1422Kendall v. Winsor, 62 U.S. (21 How.) 322, 328 (1859); A. & P. Tea Co. v. 

Supermarket Equipment Corp., 340 U.S. 147 (1950). 1423Feist Publications v. Rural Telephone Service Co., 499 U.S. 340 (1991) (publisher of telephone directory, consisting of white pages and yellow pages, not entitled to copyright in white pages, which are only compilations). ‘‘To qualify for copyright protection, a work must be original to the author. . . . Originality, as the term 

is used in copyright, means only that the work was independently created by the 

author (as opposed to copied from other works), and that it possesses some minimal 

degree of creativity. . . . To be sure, the requisite level of creativity is extremely low; 

even a slight amount will suffice.’’ Id. at 345. First clearly articulated in The Trade 

Mark Cases, 100 U.S. 82, 94 (1879), and Burrow-Giles Lithographic Co. v. Sarony, 

111 U.S. 53, 58–60 (1884), the requirement is expressed in nearly every copyright 

opinion, but its forceful iteration in Feist was noteworthy, because originality is a 

statutory requirement as well, 17 U.S.C. § 102(a), and it was unnecessary to discuss 

the concept in constitutional terms. 

cannot punish a person for operating a mail truck over its highways without procuring a driver’s license from state authorities. 1418

Clause 8. The Congress shall have Power *** To promote 

the Progress of Science and useful Arts, by securing for limited 

Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. 

COPYRIGHTS AND PATENTS 

Scope of the Power 

This clause is the foundation upon which the national patent 

and copyright laws rest, although it uses neither of those terms. So 

far as patents are concerned, modern legislation harks back to the 

Statute of Monopolies of 1624, whereby Parliament endowed inventors with the sole right to their inventions for fourteen years. 1419

Copyright law, in turn, traces back to the English Statute of 1710, 

which secured to authors of books the sole right of publishing them 

for designated periods. 1420 Congress was not vested by this clause, 

however, with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. 1421 Its power is limited with regard both to subject matter and to the purpose and duration of the rights granted. Only the writings and discoveries of 

authors and inventors may be protected, and then only to the end 

of promoting science and the useful arts. 1422 The concept of originality is central to copyright, and it is a constitutional requirement 

Congress may not exceed. 1423 While Congress may grant exclusive 

rights only for a limited period, it may extend the term upon the 

ART. I—LEGISLATIVE DEPARTMENT 313

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1424 Evans v. Jordan, 13 U.S. (9 Cr.) 199 (1815); Bloomer v. McQuewan, 55 U.S. 

(14 How.) 539, 548 (1852); Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350 (1864); 

Eunson v. Dodge, 85 U.S. (18 Wall.) 414, 416 (1873). 1425 Brown v. Duchesne, 60 U.S. (19 How.) 183, 195 (1857). It is, however, the 

ultimate objective of many nations, including the United States, to develop a system 

of patent issuance and enforcement which transcends national boundaries; it has 

been recommended, therefore, that United States policy should be to harmonize its 

patent system with that of foreign countries so long as such measures do not diminish the quality of the United States patent standards. President’s Commission on 

the Patent System, To Promote the Progress of Useful Arts, Report to the Senate 

Judiciary Committee, S. Doc. No. 5, 90th Cong., 1st sess. (1967), recommendation 

XXXV. Effectuation of this goal was begun with the United States agreement to the 

Berne Convention (the Convention for the Protection of Literary and Artistic Works, 

Sept. 9, 1886), and Congress’ conditional implementation of the Convention through 

legislation. The Berne Convention Implementation Act of 1988, P. L. 100–568, 102 

Stat. 2853, 17 U.S.C. § 101 and notes. 1426Seymour v. Osborne, 78 U.S. (11 Wall.) 516, 549 (1871). Cf. Collar Company 

v. Van Dusen, 90 U.S. (23 Wall.) 530, 563 (1875); Reckendorfer v. Faber, 92 U.S. 

347, 356 (1876). 1427Smith v. Nichols, 89 U.S. (21 Wall.) 112, 118 (1875). 1428 Rubber-Tip Pencil Co. v. Howard, 87 U.S. (20 Wall.) 498, 507 (1874); Clark 

Thread Co. v. Willimantic Linen Co., 140 U.S. 481, 489 (1891). 1429Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948). Cf. Dow Co. v. 

Halliburton Co., 324 U.S. 320 (1945); Cuno Corp. v. Automatic Devices Corp., 314 

U.S. 84, 89 (1941). 1430Sinclair Co. v. Interchemical Corp., 325 U.S. 327, 330 (1945); Marconi Wireless Co. v. United States, 320 U.S. 1 (1943). 1431Keystone Mfg. Co. v. Adams, 151 U.S. 139 (1894); Diamond Rubber Co. v. 

Consol. Tire Co., 220 U.S. 428 (1911). 1432 A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950). An 

interesting concurring opinion was filed by Justice Douglas for himself and Justice 

expiration of the period originally specified, and in so doing may 

protect the rights of purchasers and assignees. 1424 The copyright 

and patent laws do not have, of their own force, any extraterritorial 

operation. 1425

Patentable Discoveries 

The protection traditionally afforded by acts of Congress under 

this clause has been limited to new and useful inventions, 1426 and

while a patentable invention is a mental achievement, 1427 for an 

idea to be patentable it must have first taken physical form. 1428

Despite the fact that the Constitution uses the term ‘‘discovery’’ 

rather than ‘‘invention,’’ a patent may not be issued for the discovery of a hitherto unknown phenomenon of nature. ‘‘If there is 

to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.’’ 1429 As for the 

mental processes which have been traditionally required, the Court 

has held in the past that an invention must display ‘‘more ingenuity . . . than the work of a mechanic skilled in the art;’’ 1430 and

while combination patents have been at times sustained, 1431 the

accumulation of old devices is patentable ‘‘only when the whole in 

some way exceeds the sum of its parts.’’ 1432 Though ‘‘inventive geVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00251 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
314 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

Black: ‘‘It is not enough,’’ says Justice Douglas, ‘‘that an article is new and useful. 

The Constitution never sanctioned the patenting of gadgets. Patents serve a higher 

end—the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it has to be of such quality and distinction that masters of the scientific field in which it falls will recognize it as an advance.’’ Id. at 

154–155. He then quotes the following from an opinion of Justice Bradley’s given 

70 years ago: 

‘‘It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously 

occur to any skilled mechanic or operator in the ordinary progress of manufacturers. 

Such an indiscriminate creation of exclusive privileges tends rather to obstruct than 

to stimulate invention. It creates a class of speculative schemers who make it their 

business to watch the advancing wave of improvement, and gather its foam in the 

form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the 

arts. It embarrasses the honest pursuit of business with fears and apprehensions 

of concealed liens and unknown liabilities to lawsuits and vexatious accountings for 

profits made in good faith. (Atlantic Works v. Brady, 107 U.S. 192, 200 (1882)).’’ 

at 155. 

The opinion concludes: ‘‘The attempts through the years to get a broader, looser 

conception of patents than the Constitution contemplates have been persistent. The 

Patent Office, like most administrative agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And 

so it has placed a host of gadgets under the armour of patents—gadgets that obviously have had no place in the constitutional scheme of advancing scientific knowledge. A few that have reached this Court show the pressure to extend monopoly to 

the simplest of devices: [listing instances].’’ Id. at 156-58. 1433 ‘‘Inventive genius’’—Justice Hunt in Reckendorfer v. Faber, 92 U.S. 347, 357 

(1875); ‘‘Genius or invention’’—Chief Justice Fuller in Smith v. Whitman Saddle Co., 

148 U.S. 674, 681 (1893); ‘‘Intuitive genius’’—Justice Brown in Potts v. Creager, 155 

U.S. 597, 607 (1895); ‘‘Inventive genius’’—Justice Stone in Concrete Appliances Co. 

v. Gomery, 269 U.S. 177, 185 (1925); ‘‘Inventive genius’’—Justice Roberts in Mantle 

Lamp Co. v. Aluminum Co., 301 U.S. 544, 546 (1937); ‘‘the flash of creative genius, 

not merely the skill of the calling’’—Justice Douglas in Cuno Corp. v. Automatic Devices Corp., 314 U.S. 84, 91 (1941). 1434 Act of February 21, 1793, ch. 11, 1 Stat. 318. See Graham v. John Deere 

Co., 383 U.S. 1, 3–4, 10 (1966). 1435 35 U.S.C. § 103. 1436 E.g., A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950); 

Jungerson v. Ostby & Barton Co., 335 U.S. 560 (1949); and Cuno Corp. v. Automatic 

Devices Corp., 314 U.S. 84 (1941). 1437 52 U.S. (11 How.) 248 (1850). 1438 383 U.S. 1 (1966). 

nius’’ and slightly varying language have been appearing in judicial 

decisions for almost a century, 1433 ‘‘novelty’’ and ‘‘utility’’ has been 

the primary statutory test since the Patent Act of 1793. 1434 With

Congress’ enactment of the Patent Act of 1952, however, § 103 of 

the Act required that an innovation be of a ‘‘nonobvious’’ nature, 

that is, it must not be an improvement that would be obvious to 

a person having ordinary skill in the pertinent art. 1435 This alteration of the standard of patentability was perceived by some as 

overruling previous Supreme Court cases requiring perhaps a higher standard for obtaining a patent, 1436 but the Court itself interpreted the provision as codifying its earlier holding in Hotchkiss v. 

Greenwood, 1437 in Graham v. John Deere Co. 1438 The Court in this 

ART. I—LEGISLATIVE DEPARTMENT 315

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1439 383 U.S. at 6 (first emphasis added, second emphasis by Court). For a thorough discussion, see Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 

146–152 (1989). 1440 Anderson’s-Black Rock, Inc. v. Pavement Salvage Co., 396 U.S. 57 (1969). 

‘‘The question of invention must turn on whether the combination supplied the key 

requirement.’’ Id. at 60. But the Court also appeared to apply the test of nonobviousness in the same decision: ‘‘We conclude that the combination was reasonably obvious to one with ordinary skill in the art.’’ Id. See also McClain v. Ortmayer, 141 

U.S. 419, 427 (1891), where, speaking of the use of ‘‘invention’’ as a standard of patentability the Court said: ‘‘The truth is the word cannot be defined in such manner 

as to afford any substantial aid in determining whether a particular device involves 

an exercise of the inventive faculty or not.’’ 1441 A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950); 

Mahn v. Harwood, 112 U.S. 354, 358 (1884). In Markman v. Westview Instruments, 

Inc., 517 U.S. 348 (1996), the Court held that the interpretation of terms in a patent 

claim is a matter of law reserved entirely for the court. The Seventh Amendment 

does not require that such issues be tried to a jury. 1442 Evans v. Eaton, 16 U.S. (3 Wheat.) 454, 512 (1818). 

case said: ‘‘Innovation, advancement, and things which add to the 

sum of useful knowledge are inherent requisites in a patent system 

which by constitutional command must ‘promote the Progress of ... 

useful Arts.’ This is the standard expressed in the Constitution and 

it may not be ignored.’’ 1439 Congressional requirements on patentability, then, are conditions and tests that must fall within the constitutional standard. Underlying the constitutional tests and congressional conditions for patentability is the balancing of two interests—the interest of the public in being protected against monopolies and in having ready access to and use of new items versus the 

interest of the country, as a whole, in encouraging invention by rewarding creative persons for their innovations. By declaring a constitutional standard of patentability, however, the Court, rather 

than Congress, will be doing the ultimate weighing. As for the clarity of the patentability standard, the three-fold test of utility, novelty and advancement seems to have been made less clear by the 

Supreme Court’s recent rejuvenation of ‘‘invention’’ as a standard 

of patentability. 1440

Procedure in Issuing Patents 

The standard of patentability is a constitutional standard, and 

the question of the validity of a patent is a question of law. 1441

Congress may authorize the issuance of a patent for an invention 

by a special, as well as by general, law, provided the question as 

to whether the patentees device is in truth an invention is left open 

to investigation under the general law. 1442 The function of the 

Commissioner of Patents in issuing letters patent is deemed to be 

quasi-judicial in character. Hence an act granting a right of appeal 

from the Commission to the Court of Appeals for the District of Columbia is not unconstitutional as conferring executive power upon 

316 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1443 United States v. Duell, 172 U.S. 576, 586–589 (1899). See also Butterworth

v. United States ex rel. Hoe, 112 U.S. 50 (1884). 1444Graham v. John Deere Co., 383 U.S. 1, 18 (1966). 1445 In Jennings v. Brenner, 255 F. Supp. 410, 412 (D.D.C. 1966), District Judge 

Holtzoff suggested that a system of remand be adopted. 1446Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 660 (1834); Holmes v. Hurst, 174 

U.S. 82 (1899). The doctrine of common-law copyright was long statutorily preserved 

for unpublished works, but the 1976 revision of the federal copyright law abrogated 

the distinction between published and unpublished works, substituting a single federal system for that existing since the first copyright law in 1790. 17 U.S.C. § 301. 1447Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 662 (1834); Evans v. Jordan, 13 

U.S. (9 Cr.) 199 (1815). A major limitation of copyright law is that ‘‘fair use’’ of a 

copyrighted work is not an infringement. Fair use can involve such things as citation for the use of criticism and reproduction for classroom purposes, but it may not 

a judicial body. 1443 The primary responsibility, however, for weeding out unpatentable devices rests in the Patent Office. 1444 The

present system of ‘‘de novo’’ hearings before the Court of Appeals 

allows the applicant to present new evidence which the Patent Office has not heard, 1445 thus making somewhat amorphous the central responsibility. 

Nature and Scope of the Right Secured 

The leading case bearing on the nature of the rights which 

Congress is authorized to secure is that of Wheaton v. Peters. Wheaton charged Peters with having infringed his copyright on the 

twelve volumes of ‘‘Wheaton’s Reports,’’ wherein are reported the 

decisions of the United States Supreme Court for the years from 

1816 to 1827 inclusive. Peters’ defense turned on the proposition 

that inasmuch as Wheaton had not complied with all of the requirements of the act of Congress, his alleged copyright was void. 

Wheaton, while denying this assertion of fact, further contended 

that the statute was only intended to secure him in his pre-existent 

rights at common law. These at least, he claimed, the Court should 

protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of 

the common law that protected an author in the sole right to continue to publish a work once published. It denied, in the second 

place, that there is any principle of law, common or otherwise, 

which pervades the Union except such as are embodied in the Constitution and the acts of Congress. Nor, in the third place, it held, 

did the word ‘‘securing’’ in the Constitution recognize the alleged 

common law principle Wheaton invoked. The exclusive right which 

Congress is authorized to secure to authors and inventors owes its 

existence solely to the acts of Congress securing it, 1446 from which 

it follows that the rights granted by a patent or copyright are subject to such qualifications and limitations as Congress, in its unhampered consultation of the public interest, sees fit to impose. 1447

ART. I—LEGISLATIVE DEPARTMENT 317

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

supersede the use of the original work. See Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (an unauthorized 300 to 400 word excerpt, published 

as a news ‘‘scoop’’ of the authorized prepublication excerpt of former President 

Ford’s memoirs and substantially affecting the potential market for the authorized 

version, was not a fair use within the meaning of § 107 of the Copyright Act. 17 

U.S.C. § 107). For fair use in the context of a song parody, see Campbell v. AcuffRose Music, Inc., 510 U.S. 569 (1994). 1448 464 U.S. 417, 431 (1984). 1449Kalem Co. v. Harper Bros., 222 U.S. 55 (1911). For other problems arising 

because of technological and electronic advancement see, e.g., Fortnightly Corp. v. 

United Artists Television, Inc., 392 U.S. 390 (1968); Sony Corp. v. Universal City 

Studios, 464 U.S. 417 (1984). 1450 Baker v. Selden, 101 U.S. 99, 105 (1880). 1451Stevens v. Gladding, 58 U.S. (17 How.) 447 (1855). 1452 Ager v. Murray, 105 U.S. 126 (1882). 

The Court’s ‘‘reluctance to expand [copyright] protection without explicit legislative guidance’’ controlled its decision in Sony

Corp. v. Universal City Studios, 1448 in which it held that the manufacture and sale of video tape (or cassette) recorders for home use 

do not constitute ‘‘contributory’’ infringement of the copyright in 

television programs. Copyright protection, the Court reiterated, is 

‘‘wholly statutory,’’ and courts should be ‘‘circumspect’’ in extending 

protections to new technology. The Court refused to hold that contributory infringement could occur simply through the supplying of 

the devices with which someone else could infringe, especially in 

view of the fact that VCRs are capable of substantial noninfringing 

‘‘fair use,’’ e.g., time shifting of television viewing. 

In giving to authors the exclusive right to dramatize any of 

their works, Congress did not exceed its powers under this clause. 

Even as applied to pantomine dramatization by means of silent motion pictures, the act was sustained against the objection that it extended the copyright to ideas rather than to the words in which 

they were clothed. 1449 But the copyright of the description of an art 

in a book was held not to lay a foundation for an exclusive claim 

to the art itself. The latter can be protected, if at all, only by letters 

patent. 1450 Since copyright is a species of property distinct from the 

ownership of the equipment used in making copies of the matter 

copyrighted, the sale of a copperplate under execution did not pass 

any right to print and publish the map which the copperplate was 

designed to produce. 1451 A patent right may, however, be subjected, 

by bill in equity, to payment of a judgment debt of the patentee. 1452

Power of Congress Over Patents and Copyrights 

Letters patent for a new invention or discovery in the arts confer upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the Government 

318 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1453 James v. Campbell, 104 U.S. 356, 358 (1882). See also United States v. 

Burns, 79 U.S. (12 Wall.) 246, 252 (1871); Cammeyer v. Newton, 94 U.S. 225, 234 

(1877); Hollister v. Benedict Manufacturing Co., 113 U.S. 59, 67 (1885); United 

States v. Palmer, 128 U.S. 262, 271 (1888); Belknap v. Schild, 161 U.S. 10, 16 

(1896). 1454McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843). 1455 Bloomer v. McQuewan, 55 U.S. (14 How.) 539, 553 (1852). 1456See Motion Picture Co. v. Universal Film Co., 243 U.S. 502 (1917); Morton 

Salt Co. v. Suppiger Co., 314 U.S. 488 (1942); United States v. Masonite Corp., 316 

U.S. 265 (1942); United States v. New Wrinkle, Inc., 342 U.S. 371 (1952), where the 

Justices divided 6 to 3 as to the significance for the case of certain leading precedents; and Walker Process Equip., Inc. v. Food Mach. & Chem. Corp., 382 U.S. 172 

(1965). 1457Patterson v. Kentucky, 97 U.S. 501 (1879). 1458 Allen v. Riley, 203 U.S. 347 (1906); John Woods & Sons v. Carl, 203 U.S. 

358 (1906); Ozan Lumber Co. v. Union County Bank, 207 U.S. 251 (1907). 1459Fox Film Corp. v. Doyal, 286 U.S. 123 (1932), overruling Long v. Rockwood, 

277 U.S. 142 (1928). 

without just compensation. 1453 Congress may, however, modify 

rights under an existing patent, provided vested property rights are 

not thereby impaired, 1454 but it does not follow that it may authorize an inventor to recall rights that he has granted to others or reinvest in him rights of property that he had previously conveyed 

for a valuable and fair consideration. 1455 Furthermore, the rights 

the present statutes confer are subject to the antitrust laws, 

though it can hardly be said that the cases in which the Court has 

endeavored to draw the line between the rights claimable by patentees and the kind of monopolistic privileges which are forbidden 

by those acts exhibit entire consistency in their holdings. 1456

State Power Affecting Patents and Copyrights 

Displacement of state police or taxing powers by federal patent 

or copyright has been a source of considerable dispute. Ordinarily, 

rights secured to inventors must be enjoyed in subordination to the 

general authority of the States over all property within their limits. 

A state statute requiring the condemnation of illuminating oils inflammable at less than 130 degrees Fahrenheit was held not to 

interfere with any right secured by the patent laws, although the 

oil for which the patent was issued could not be made to comply 

with state specifications. 1457 In the absence of federal legislation, 

a State may prescribe reasonable regulations for the transfer of 

patent rights, so as to protect its citizens from fraud. Hence, a requirement of state law that the words ‘‘given for a patent right’’ appear on the face of notes given in payment for such right is not unconstitutional. 1458 Royalties received from patents or copyrights are 

subject to a nondiscriminatory state income tax, a holding to the 

contrary being overruled. 1459

ART. I—LEGISLATIVE DEPARTMENT 319

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1460Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964); Compco Corp. v. 

Day-Brite Lighting, Inc., 376 U.S. 234 (1964). 1461 412 U.S. 546 (1973). Informing the decisions were different judicial attitudes 

with respect to the preclusion of the States from acting in fields covered by the patent and copyright clauses, whether Congress had or had not acted. The latter case 

recognized permissible state interests, id. at 552–560, whereas the former intimated 

that congressional power was exclusive. Sears, Roebuck & Co. v. Stiffel Co., 376 

U.S. 225, 228–31 (1964). 1462 In the 1976 revision of the copyright law, Congress broadly preempted, with 

narrow exceptions, all state laws bearing on material subject to copyright. 17 U.S.C. 

§ 301. The legislative history makes clear Congress’ intention to overturn Goldstein 

and ‘‘to preempt and abolish any rights under the common law or statutes of a state 

that are equivalent to copyright and that extend to works coming within the scope 

of the federal copyright law.’’ H. Rep. No. 94–1476, 94th Congress, 2d sess. (1976), 

130. The statute preserves state tape piracy and similar laws as to sound recordings 

fixed before February 15, 1972, until February 15, 2047. 1463Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). See also Aronson v. 

Quick Point Pencil Co., 440 U.S. 257 (1979). 

State power to protect things not patented or copyrighted 

under federal law has been buffeted under changing Court doctrinal views. In two major cases, the Court held that a State could 

not utilize unfair competition laws to prevent or punish the copying 

of products not entitled to a patent. Emphasizing the necessity for 

a uniform national policy and adverting to the monopolistic effects 

of the state protection, the Court inferred that because Congress 

had not extended the patent laws to the material at issue, federal 

policy was to promote free access when the materials were thus in 

the public domain. 1460 But, in Goldstein v. California, 1461 the Court 

distinguished the two prior cases and held that the determination 

whether a state ‘‘tape piracy’’ statute conflicted with the federal 

copyright statute depended upon the existence of a specific congressional intent to forbid state protection of the ‘‘writing’’ there involved. Its consideration of the statute and of its legislative history 

convinced the Court that Congress in protecting certain ‘‘writings’’ 

and in not protecting others bespoke no intention that federally unprotected materials should enjoy no state protection, only that Congress ‘‘has left the area unattended.’’ 1462 Similar analysis was used 

to sustain the application of a state trade secret law to protect a 

chemical process, that was patentable but not patented, from utilization by a commercial rival, which had obtained the process from 

former employees of the company, all of whom had signed agreements not to reveal the process. The Court determined that protection of the process by state law was not incompatible with the federal patent policy of encouraging invention and public use of patented inventions, inasmuch as the trade secret law serves other interests not similarly served by the patent law and where it protects 

matter clearly patentable it is not likely to deter applications for 

patents. 1463

320 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents 

1464 489 U.S. 141 (1989). 1465 489 U.S. at 156. 1466 489 U.S. at 166. As examples of state regulation that might be permissible, 

the Court referred to unfair competition, trademark, trade dress, and trade secrets 

laws. Perhaps by way of distinguishing Sears and Compco, both of which invalidated 

use of unfair competition laws, the Court suggested that prevention of ‘‘consumer 

confusion’’ is a permissible state goal that can be served in some instances by application of such laws. Id. at 154. 1467 489 U.S. at 156 (emphasis supplied). 1468 489 U.S. at 158. 1469 100 U.S. 82 (1879). 1470 100 U.S. at 94. 1471 Burrow-Giles Lithographic Co. v. Saroney, 111 U.S. 53 (1884). 

Returning to the Sears and Compco emphasis, the Court 

unanimously, in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 1464

reasserted that ‘‘efficient operation of the federal patent system depends upon substantially free trade in publicly known, unpatented 

design and utilitarian conceptions.’’ 1465 At the same time, however, 

the Court attempted to harmonize Goldstein, Kewanee, and other 

decisions: there is room for state regulation of the use of 

unpatented designs if those regulations are ‘‘necessary to promote 

goals outside the contemplation of the federal patent scheme.’’ 1466

What States are forbidden to do is to ‘‘offer patent-like protection to intellectual creations which would otherwise remain unprotected as a matter of federal law.’’ 1467 A state law ‘‘aimed directly 

at preventing the exploitation of the [unpatented] design’’ is invalid 

as impinging on an area of pervasive federal regulation. 1468

Trade-Marks and Advertisements 

In the famous Trade-Mark Cases, 1469 decided in 1879, the Supreme Court held void acts of Congress, which, in apparent reliance upon this clause, extended the protection of the law to trademarks registered in the Patent Office. ‘‘The ordinary trade mark,’’ 

said Justice Miller for the Court, ‘‘has no necessary relation to invention or discovery;’’ nor is it to be classified ‘‘under the head of 

writings of authors.’’ It does not ‘‘depend upon novelty, invention, 

discovery, or any work of the brain.’’ 1470 Not many years later the 

Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyrighted, 1471 while still more recently a circus poster was held to be entitled to the same protection. In answer to the objection of the circuit court that a lithograph which ‘‘has no other use than that of a mere advertisement 

... (would not be within) the meaning of the Constitution,’’ Justice 

Holmes summoned forth the shades of Velasquez, Whistler, Rembrandt, Ruskin, Degas, and others in support of the proposition 

that it is not for the courts to attempt to judge the worth of picVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00258 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 321

Sec. 8—Powers of Congress Cl. 10—Maritime Crimes 

1472 Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 1473 1 J. KENT, COMMENTARIES ON AMERICAN LAW 1 (1826). 1474 19 JOURNALS OF THE CONTINENTAL CONGRESS 315, 361 (1912); 20 id. at 762; 

21 id. at 1136–37, 1158. 1475 Article IX. 1476 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 168, 

182 (Rev. ed. 1937). 

torial illustrations outside the narrowest and most obvious limits. 1472

Clause 9. The Congress shall have Power *** To constitute 

Tribunals inferior to the supreme Court; (see Article III). 

IN GENERAL 

See discussion ‘‘The Power of Congress to Control the Federal 

Courts’’ under Article III, § 2, cl. 2, infra. 

Clause 10. The Congress shall have Power *** To define 

and punish Piracies and Felonies committed on the high Seas, 

and Offences against the Law of Nations. 

PIRACIES, FELONIES, AND OFFENSES AGAINST THE 

LAW OF NATIONS 

Origin of the Clause 

‘‘When the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and 

custom had established among civilized nations of Europe, as their 

public law. . . . The faithful observance of this law is essential to national character. . . .’’ 1473 These words of the Chancellor Kent expressed the view of the binding character of international law that 

was generally accepted at the time the Constitution was adopted. 

During the Revolutionary War, Congress took cognizance of all 

matters arising under the law of nations and professed obedience 

to that law. 1474 Under the Articles of Confederation, it was given 

exclusive power to appoint courts for the trial of piracies and felonies committed on the high seas, but no provision was made for 

dealing with offenses against the law of nations. 1475 The draft of 

the Constitution submitted to the Convention of 1787 by its Committee of Detail empowered Congress ‘‘to declare the law and punishment of piracies and felonies committed on the high seas, and 

the punishment of counterfeiting the coin of the United States, and 

of offences against the law of nations.’’ 1476 In the debate on the 

322 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 10—Maritime Crimes 

1477 Id. at 316. 

1478 United States v. Smith, 18 U.S. (5 Wheat.) 153, 160, 162 (1820). See

also The Marianna Flora, 24 U.S. (11 Wheat.) 1, 40–41 (1826); United States v. Brig 

Malek Abhel, 43 U.S. (2 How.) 210, 232 (1844). 

1479 317 U.S. 1, 27 (1942). 

1480 317 U.S. at 28. 

1481 United States v. Arjona, 120 U.S. 479, 487, 488 (1887). 

floor of the Convention, the discussion turned on the question as 

to whether the terms, ‘‘felonies’’ and the ‘‘law of nations,’’ were sufficiently precise to be generally understood. The view that these 

terms were often so vague and indefinite as to require definition 

eventually prevailed and Congress was authorized to define as well 

as punish piracies, felonies, and offenses against the law of nations. 1477

Definition of Offenses 

The fact that the Constitutional Convention considered it necessary to give Congress authority to define offenses against the law 

of nations does not mean that in every case Congress must undertake to codify that law or mark its precise boundaries before prescribing punishments for infractions thereof. An act punishing ‘‘the 

crime of piracy, as defined by the law of nations’’ was held to be 

an appropriate exercise of the constitutional authority to ‘‘define 

and punish’’ the offense, since it adopted by reference the sufficiently precise definition of International Law. 1478 Similarly, in Ex

parte Quirin, 1479 the Court found that by the reference in the Fifteenth Article of War to ‘‘offenders or offenses that . . . by the law 

of war may be triable by such military commissions . . .,’’ Congress 

had ‘‘exercised its authority to define and punish offenses against 

the law of nations by sanctioning, within constitutional limitations, 

the jurisdiction of military commissions to try persons for offenses 

which, according to the rules and precepts of the law of nations, 

and more particularly the law of war, are cognizable by such 

tribunals.’’ 1480 Where, conversely, Congress defines with particularity a crime which is ‘‘an offense against the law of nations,’’ the 

law is valid, even if it contains no recital disclosing that it was enacted pursuant to this clause. Thus, the duty which the law of nations casts upon every government to prevent a wrong being done 

within its own dominion to another nation with which it is at 

peace, or to the people thereof, was found to furnish a sufficient 

justification for the punishment of the counterfeiting within the 

United States, of notes, bonds, and other securities of foreign governments. 1481

ART. I—LEGISLATIVE DEPARTMENT 323

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1482 United States v. Flores, 3 F. Supp. 134 (E.D. Pa. 1932). 1483 United States v. Flores, 289 U.S. 137, 149–150 (1933). 1484 United States v. Furlong, 18 U.S. (5 Wheat.) 184, 200 (1820). 

Extraterritorial Reach of the Power 

Since this clause contains the only specific grant of power to 

be found in the Constitution for the punishment of offenses outside 

the territorial limits of the United States, a lower federal court 

held in 1932 1482 that the general grant of admiralty and maritime 

jurisdiction by Article III, § 2, could not be construed as extending 

either the legislative or judicial power of the United States to cover 

offenses committed on vessels outside the United States but not on 

the high seas. Reversing that decision, the Supreme Court held 

that this provision ‘‘cannot be deemed to be a limitation on the 

powers, either legislative or judicial, conferred on the National 

Government by Article III, § 2. The two clauses are the result of 

separate steps independently taken in the Convention, by which 

the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than 

supplementing the other would be to ignore their history, and without effecting any discernible purpose of their enactment, to deny to 

both the States and the National Government powers which were 

common attributes of sovereignty before the adoption of the Constitution. The result would be to deny to both the power to define 

and punish crimes of less gravity than felonies committed on vessels of the United States while on the high seas, and crimes of 

every grade committed on them while in foreign territorial waters.’’ 1483 Within the meaning of this section, an offense is committed on the high seas even where the vessel on which it occurs 

is lying at anchor on the road in the territorial waters of another 

country. 1484

Clauses 11, 12, 13, and 14. The Congress shall have power 

*** ; 

To declare War, grant Letters of Marque and Reprisal, and 

make Rules concerning Captures on Land and Water. 

324 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1485THE FEDERALIST, No. 23 (J. Cooke ed. 1937), 146–51. 1486Penhallow v. Doane, 3 U.S. (3 Dall.) 53 (1795). 1487 17 U.S. (4 Wheat.) 316 (1819). 1488 17 U.S. at 407. (Emphasis supplied.) 1489 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (dissenting opinion); see

also Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1871); and United States 

v. MacIntosh, 283 U.S. 605, 622 (1931). 1490 CONG. GLOBE, 37th Congress, 1st Sess., App. 1 (1861). 1491 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875). 1492 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919). 

To raise and support Armies, but no Appropriation of 

Money to that Use shall be for a longer Term than two Years. 

To provide and maintain a Navy. 

To make Rules for the Government and Regulation of the 

land and naval Forces. 

THE WAR POWER 

Source and Scope 

Three Theories.—Three different views regarding the source 

of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century 

and a half. Writing in The Federalist, 1485 Hamilton elaborated the 

theory that the war power is an aggregate of the particular powers 

granted by Article I, § 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon 

the affirmative grants of the written Constitution. 1486 Chief Justice 

Marshall appears to have taken a still different view, namely that 

the power to wage war is implied from the power to declare it. In 

McCulloch v. Maryland, 1487 he listed the power ‘‘to declare and 

conduct a war’’ 1488 as one of the ‘‘enumerated powers’’ from which 

the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were 

both given countenance by the Supreme Court. Speaking for four 

Justices in Ex parte Milligan, Chief Justice Chase described the 

power to declare war as ‘‘necessarily’’ extending ‘‘to all legislation 

essential to the prosecution of war with vigor and success, except 

such as interferes with the command of the forces and conduct of 

campaigns.’’ 1489 In another case, adopting the terminology used by 

Lincoln in his Message to Congress on July 4, 1861, 1490 the Court 

referred to ‘‘the war power’’ as a single unified power. 1491

An Inherent Power.—Thereafter, we find the phrase, ‘‘the 

war power,’’ being used by both Chief Justice White 1492 and Chief 

ART. I—LEGISLATIVE DEPARTMENT 325

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1493 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). 

1494 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919). 

1495 299 U.S. 304 (1936). 

1496 299 U.S. at 316, 318. On the controversy respecting Curtiss-Wright, see The

Curtiss-Wright Case, infra. 

1497 334 U.S. 742 (1948). 

1498 334 U.S. at 757–58. 

Justice Hughes, 1493 the former declaring the power to be ‘‘complete 

and undivided.’’ 1494 Not until 1936, however, did the Court explain 

the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtiss-Wright Corp., 1495 the

reasons for this conclusion were stated by Justice Sutherland as 

follows: ‘‘As a result of the separation from Great Britain by the 

colonies acting as a unit, the powers of external sovereignty passed 

from the Crown not to the colonies severally, but to the colonies in 

their collective and corporate capacity as the United States of 

America. Even before the Declaration, the colonies were a unit in 

foreign affairs, acting through a common agency—namely, the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an 

army, created a navy, and finally adopted the Declaration of Independence. . . . It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon 

the affirmative grants of the Constitution. The power to declare 

and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been 

mentioned in the Constitution, would have vested in the Federal 

Government as necessary concomitants of nationality.’’ 1496

A Complexus of Granted Powers.—In Lichter v. United 

States, 1497 on the other hand, the Court speaks of the ‘‘war powers’’ 

of Congress. Upholding the Renegotiation Act, it declared that: ‘‘In 

view of this power ‘To raise and support Armies, . . . and the power 

granted in the same Article of the Constitution ‘to make all Laws 

which shall be necessary and proper for carrying into Execution the 

foregoing Powers’, . . . the only question remaining is whether the 

Renegotiation Act was a law ‘necessary and proper for carrying into 

Execution’ the war powers of Congress and especially its power to 

support armies.’’ 1498 In a footnote, it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to 

lay taxes and provide for the common defense, to declare war, and 

to provide and maintain a navy, together with the clause designating the President as Commander-in-Chief of the Army and 

Navy, as being ‘‘among the many other provisions implementing 

326 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1499 334 U.S. at 755 n.3. 1500 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 313 

(rev. ed. 1937). 1501Mr. Butler favored ‘‘vesting the power in the President, who will have all 

the requisite qualities, and will not make war but when the Nation will support it.’’ 

Id. at 318. 1502Mr. Pinkney thought the House was too numerous for such deliberations but 

that the Senate would be more capable of a proper resolution and more acquainted 

with foreign affairs. Additionally, with the States equally represented in the Senate, 

the interests of all would be safeguarded. Id. 1503 Hamilton’s plan provided that the President was ‘‘to make war or peace, 

with the advice of the senate . . .’’ 1 id. at 300. 1504 2 id., 318–319. In THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 465, Hamilton notes: ‘‘[T]he President is to be commander-in-chief of the army and navy of 

the United States. In this respect his authority would be nominally the same with 

that of the king of Great Britain, but in substance much inferior to it. It would 

amount to nothing more than the supreme command and direction of the military 

and naval forces, as first General and admiral of the confederacy; while that of the 

British king extends to the declaring of war and to the raising and regulating of

fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature.’’ (Emphasis in original). And see id. at No. 26, 164–171. 

Cf. C. BERDAHL, WAR POWERS OF THE EXECUTIVE IN THE UNITED STATES ch. V 

(1921). 1505THE FEDERALIST, No. 69 (J. Cooke ed. 1961), 464–465, 470. During the Convention, Gerry remarked that he ‘‘never expected to hear in a republic a motion to 

empower the Executive alone to declare war.’’ 2 M. FARRAND, THE RECORDS OF THE

FEDERAL CONVENTION OF 1787 318 (rev. ed. 1937). 1506The Articles of Confederation vested powers with regard to foreign relations 

in the Congress. 

the Congress and the President with powers to meet the varied demands of war. . . .’’ 1499

Declaration of War 

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ‘‘to make 

war.’’ 1500 Although there were solitary suggestions that the power 

should better be vested in the President alone, 1501 in the Senate 

alone, 1502 or in the President and the Senate, 1503 the sentiment of 

the Convention, as best we can determine from the limited notes 

of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by 

the concurrence of the President and both Houses of Congress. 1504

In contrast to the English system, the Framers did not want the 

wealth and blood of the Nation committed by the decision of a single individual; 1505 in contrast to the Articles of Confederation, they 

did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions. 1506

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to 

ART. I—LEGISLATIVE DEPARTMENT 327

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1507 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 318– 

319 (rev. ed. 1937). 1508 Jointly introducing the amendment to substitute ‘‘declare’’ for ‘‘make,’’ Madison and Gerry noted the change would ‘‘leav[e] to the Executive the power to repel 

sudden attacks.’’ Id. at 318. 1509 Connecticut originally voted against the amendment to substitute ‘‘declare’’ 

for ‘‘make’’ but ‘‘on the remark by Mr. King that ‘make’ war might be understood 

to ‘conduct’ it which was an Executive function, Mr. Ellsworth gave up his opposition, and the vote of Connecticut was changed... .’’ Id. at 319. The contemporary and 

subsequent judicial interpretation was to the understanding set out in the text. 

Cf. Talbot v. Seeman, 5 U.S. ()1 Cr., 1, 28 (1801) (Chief Justice Marshall: ‘‘The 

whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides in this inquiry.’’); 

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866). 1510MESSAGES AND PAPERS OF THE PRESIDENTS 326, 327 (J. Richardson ed., 

1896). 1511 7 WORKS OF ALEXANDER HAMILTON 746–747 (J. Hamilton ed., 1851). 1512 2 Stat. 129, 130 (1802) (emphasis supplied). 

‘‘declare war.’’ 1507 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, 

in the context of the Convention proceedings it appears more likely 

the change was intended to insure that the President was empowered to repel sudden attacks 1508 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President. 1509

An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting 

armed conflict. The Bey of Tripoli, in the course of attempting to 

extort payment for not molesting United States shipping, declared 

war upon the United States, and a debate began whether Congress 

had to enact a formal declaration of war to create a legal status 

of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in 

the narrowest sense of the term. Attacked by a Tripolitan cruiser, 

one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war. 1510

Hamilton espoused a different interpretation, contending that the 

Constitution vested in Congress the power to initiate war but that 

when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed. 1511 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United 

States to seize all vessels and goods of the Bey of Tripoli ‘‘and also 

to cause to be done all such other acts of precaution or hostility as 

the state of war will justify . . .’’ 1512 But no formal declaration of 

328 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1513Of course, Congress need not declare war in the all-out sense; it may provide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. 

Tingy, 4 U.S. (4 Dall.) 37 (1800). 1514The Prize Cases, 67 U.S. (2 Bl.) 635 (1863). 1515 12 Stat. 326 (1861). 1516The Prize Cases, 67 U.S. (2 Bl.) 635, 669 (1863). 1517 67 U.S. at 682. 1518The Protector, 79 U.S. (12 Wall.) 700, 702 (1872). 

war was passed, Congress apparently accepting Hamilton’s 

view. 1513

Sixty years later, the Supreme Court sustained the blockade of 

the Southern ports instituted by Lincoln in April 1861 at a time 

when Congress was not in session. 1514 Congress had subsequently 

ratified Lincoln’s action, 1515 so that it was unnecessary for the 

Court to consider the constitutional basis of the President’s action 

in the absence of congressional authorization, but the Court nonetheless approved, five-to-four, the blockade order as an exercise of 

Presidential power alone, on the ground that a state of war was a 

fact. ‘‘The President was bound to meet it in the shape it presented 

itself, without waiting for Congress to baptize it with a name; and 

no name given to it by him or them could change the fact.’’ 1516 The

minority challenged this doctrine on the ground that while the 

President could unquestionably adopt such measures as the laws 

permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war 

and thereby authorize the legal consequences ensuing from a state 

of war. 1517

The view of the majority was proclaimed by a unanimous 

Court a few years later when it became necessary to ascertain the 

exact dates on which the war began and ended. The Court, the 

Chief Justice said, must ‘‘refer to some public act of the political 

departments of the government to fix the dates; and, for obvious 

reasons, those of the executive department, which may be, and, in 

fact, was, at the commencement of hostilities, obliged to act during 

the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as 

marking the first of these dates, and the proclamation that the war 

had closed, as marking the second.’’ 1518

These cases settled the issue whether a state of war could exist 

without formal declaration by Congress. When hostile action is 

taken against the Nation, or against its citizens or commerce, the 

appropriate response by order of the President may be resort to 

force. But the issue so much a source of controversy in the era of 

the Cold War and so divisive politically in the context of United 

States involvement in the Vietnam War has been whether the 

ART. I—LEGISLATIVE DEPARTMENT 329

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1519The controversy, not susceptible of definitive resolution in any event, was 

stilled for the moment, when in 1973 Congress set a cut-off date for United States 

military activities in Indochina, P.L. 93–52, 108, 87 Stat. 134, and subsequently, 

over the President’s veto, Congress enacted the War Powers Resolution, providing 

a framework for the assertion of congressional and presidential powers in the use 

of military force. P.L. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548. 1520 In Atlee v. Richardson, 411 U.S. 911 (1973), aff’g. 347 F. Supp. 689 (E.D.Pa., 

1982), the Court summarily affirmed a three-judge court’s dismissal of a suit challenging the constitutionality of United States activities in Vietnam on political question grounds. The action constituted approval on the merits of the dismissal, but it 

did not necessarily approve the lower court’s grounds. See also Massachusetts v. 

Laird, 400 U.S. 886 (1970); Holtzman v. Schlesinger, 414 U.S. 1304, 1316, 1321 

(1973) (actions of individual justices on motions for stays). The Court simply denied 

certiorari in all cases on its discretionary docket. 1521 E.g., Velvel v. Johnson, 287 F. Supp. 846 (D.Kan. 1968), aff’d sub nom.

Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970); 

Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff’d 373 F.2d 664 (C.A.D.C. 

1967), cert. denied, 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C., 

1967), cert. denied, 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 

(E.D.N.Y. 1970), and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated

and aff’d, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Holtzman v. Schlesinger, 484 F.2d 1307 

(2d Cir. 1973) cert. denied, 416 U.S. 936 (1974); Mitchell v. Laird, 488 F.2d 611 

(D.C. Cir. 1973). 

During the 1980s, the courts were no more receptive to suits, many by Members 

of Congress, seeking to obtain a declaration of the President’s powers. The political 

question doctrine as well as certain discretionary authorities were relied on. See,

e.g., Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982) (military aid to El Salvador), affd. 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismissed as 

moot, 765 F.2d 1124 (D.C.Cir. 1985); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 

1987) (reflagging and military escort operation in Persian Gulf), affd. No. 87–5426 

(D.C.Cir. 1988); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) (U.S. Saudia 

Arabia/Persian Gulf deployment). 1522For further discussion, see section on President’s commander-in-chief powers.

President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific 

congressional authorization short of such a declaration. 1519 The Supreme Court studiously refused to consider the issue in any of the 

forms in which it was presented, 1520 and the lower courts generally 

refused, on ‘‘political question’’ grounds, to adjudicate the matter. 1521 In the absence of judicial elucidation, the Congress and the 

President have been required to accommodate themselves in the 

controversy to accept from each other less than each has been willing to accept but more than either has been willing to grant. 1522

THE POWER TO RAISE AND MAINTAIN ARMED 

FORCES

Purpose of Specific Grants 

The clauses of the Constitution, which give Congress authority 

to raise and support armies, and so forth, were not inserted to 

330 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1523W. BLACKSTONE, COMMENTARIES 263 (St. G. Tucker ed., 1803). 1524 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1187 (1833). 1525 25 Ops. Atty. Gen. 105, 108 (1904). 1526 40 Ops. Atty. Gen. 555 (1948). 1527Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S. 

3 (1918). 

endow the national government rather than the States with the 

power to do these things but to designate the department of the 

Federal Government which would exercise the powers. As we have 

noted above, the English king was endowed with the power not 

only to initiate war but the power to raise and maintain armies 

and navies. 1523 Aware historically that these powers had been utilized to the detriment of the liberties and well-being of Englishmen 

and aware that in the English Declaration of Rights of 1688 it was 

insisted that standing armies could not be maintained without the 

consent of Parliament, the Framers vested these basic powers in 

Congress. 1524

Time Limit on Appropriations for the Army 

Prompted by the fear of standing armies to which Story alluded, the framers inserted the limitation that ‘‘no appropriation of 

money to that use shall be for a longer term than two years.’’ In 

1904, the question arose whether this provision would be violated 

if the Government contracted to pay a royalty for use of a patent 

in constructing guns and other equipment where the payments are 

likely to continue for more than two years. Solicitor-General Hoyt 

ruled that such a contract would be lawful; that the appropriations 

limited by the Constitution ‘‘are those only which are to raise and 

support armies in the strict sense of the word ‘support,’ and that 

the inhibition of that clause does not extend to appropriations for 

the various means which an army may use in military operations, 

or which are deemed necessary for the common defense. . . .’’ 1525 Relying on this earlier opinion, Attorney General Clark ruled in 1948 

that there was ‘‘no legal objection to a request to the Congress to 

appropriate funds to the Air Force for the procurement of aircraft 

and aeronautical equipment to remain available until expended.’’ 1526

Conscription

The constitutions adopted during the Revolutionary War by at 

least nine of the States sanctioned compulsory military service. 1527

Towards the end of the War of 1812, conscription of men for the 

army was proposed by James Monroe, then Secretary of War, but 

opposition developed and peace came before the bill could be enVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00268 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 331

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1528 245 U.S. at 385. 1529 245 U.S. at 386–88. The measure was upheld by a state court. Kneedler v. 

Lane, 45 Pa. St. 238 (1863). 1530 Act of May 18, 1917, ch. 15, 40 Stat. 76. 1531Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918). 1532 Butler v. Perry, 240 U.S. 328, 333 (1916). 1533 245 U.S. 366 (1918). 1534 245 U.S. at 390. 1535 Universal Military Training and Service Act of 1948, 62 Stat. 604, as 

amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of 

July 1, 1973, P.L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), and registration 

was discontinued in 1975. Pres. Proc. No. 4360, 3 C.F.R. 462, 50 U.S.C. App. § 453 

note. Registration, but not conscription, was reactivated in the wake of the invasion 

of Afghanistan. P.L. 96–282, 94 Stat. 552 (1980). 1536 391 U.S. 367 (1968). 

acted. 1528 In 1863, a compulsory draft law was adopted and put 

into operation without being challenged in the federal courts. 1529

Not so the Selective Service Act of 1917. 1530 This measure was attacked on the grounds that it tended to deprive the States of the 

right to ‘‘a well-regulated militia,’’ that the only power of Congress 

to exact compulsory service was the power to provide for calling 

forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the 

compulsory draft imposed involuntary servitude in violation of the 

Thirteenth Amendment. The Supreme Court rejected all of these 

contentions. It held that the powers of the States with respect to 

the militia were exercised in subordination to the paramount power 

of the National Government to raise and support armies, and that 

the power of Congress to mobilize an army was distinct from its 

authority to provide for calling the militia and was not qualified or 

in any wise limited thereby. 1531

Before the United States entered the first World War, the 

Court had anticipated the objection that compulsory military service would violate the Thirteenth Amendment and had answered it 

in the following words: ‘‘It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was 

not intended to interdict enforcement of those duties which individuals owe to the State, such as services in the army, militia, on the 

jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.’’ 1532 Accordingly, in the Selective

Draft Law Cases, 1533 it dismissed the objection under that amendment as a contention that was ‘‘refuted by its mere statement.’’ 1534

Although the Supreme Court has so far formally declined to 

pass on the question of the ‘‘peacetime’’ draft, 1535 its opinions leave 

no doubt of the constitutional validity of the act. In United States 

v. O’Brien, 1536 upholding a statute prohibiting the destruction of 

332 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1537 391 U.S. at 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948). 1538Schlesinger v. Ballard, 419 U.S. 498, 510 (1975). 1539 Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id. at 64–65. And see Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 

(1984) (upholding denial of federal financial assistance under Title IV of the Higher 

Education Act to young men who fail to register for the draft). 1540Parker v. Levy, 417 U.S. 733, 743–752 (1974). See also Orloff v. Willoughby, 

345 U.S. 83, 93–94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746–748 (1975); 

Greer v. Spock, 424 U.S. 828, 837–838 (1976); Middendorf v. Henry, 425 U.S. 25, 

45–46 (1976); Brown v. Glines, 444 U.S. 348, 353–358 (1980); Rostker v. Goldberg, 

453 U.S. 57, 64–68 (1981). 1541 Rostker v. Goldberg, 453 U.S. 57, 67 (1981). 1542 453 U.S. at 66. ‘‘[P]erhaps in no other area has the Court accorded Congress 

greater deference.’’ Id. at 64–65. See also Gilligan v. Morgan, 413 U.S. 1, 10 (1973). 1543Parker v. Levy, 417 U.S. 733, 758 (1974). ‘‘[T]he tests and limitations [of the 

Constitution] to be applied may differ because of the military context.’’ Rostker v. 

Goldberg, 453 U.S. 57, 67 (1981). 

selective service registrants’ certificate of registration, the Court, 

speaking through Chief Justice Warren, thought ‘‘[t]he power of 

Congress to classify and conscript manpower for military service is 

‘beyond question.’’’ 1537 In noting Congress’ ‘‘broad constitutional 

power’’ to raise and regulate armies and navies, 1538 the Court has 

specifically observed that the conscription act was passed ‘‘pursuant to’’ the grant of authority to Congress in clauses 12–14. 1539

Care of the Armed Forces 

Scope of the congressional and executive authority to prescribe 

the rules for the governance of the military is broad and subject to 

great deference by the judiciary. The Court recognizes ‘‘that the 

military is, by necessity, a specialized society separate from civilian 

society,’’ that ‘‘[t]he military constitutes a specialized community 

governed by a separate discipline from that of the civilian,’’ and 

that ‘‘Congress is permitted to legislate both with greater breadth 

and with greater flexibility when prescribing the rules by which 

[military society] shall be governed than it is when prescribing 

rules for [civilian society].’’ 1540 Denying that Congress or military 

authorities are free to disregard the Constitution when acting in 

this area, 1541 the Court nonetheless operates with ‘‘a healthy deference to legislative and executive judgments’’ with respect to military affairs, 1542 so that, while constitutional guarantees apply, ‘‘the 

different character of the military community and of the military 

mission requires a different application of those protections.’’ 1543

In reliance upon this deference to congressional judgment with 

respect to the roles of the sexes in combat and the necessities of 

military mobilization, coupled with express congressional consideration of the precise questions, the Court sustained as constitutional 

the legislative judgment to provide only for registration of males 

ART. I—LEGISLATIVE DEPARTMENT 333

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1544 Rostker v. Goldberg, 453 U.S. 57 (1981). Compare Frontiero v. Richardson, 

411 U.S. 677 (1973), with Schlesinger v. Ballard, 419 U.S. 498 (1975). 1545Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407 

U.S. 197 (1972). 1546 Brown v. Glines, 444 U.S. 348 (1980); Secretary of the Navy v. Huff, 444 

U.S. 453 (1980). The statutory challenge was based on 10 U.S.C. § 1034, which protects a serviceman’s right to communicate with a Member of Congress, but which 

the Court interpreted narrowly. 1547Parker v. Levy, 417 U.S. 733 (1974). 1548 Chappell v. Wallace, 462 U.S. 296 (1983) (enlisted men charging racial discrimination by their superiors in duty assignments and performance evaluations 

could not bring constitutional tort suits); United States v. Stanley, 483 U.S. 669 

(1987) (officer who had been an unwitting, unconsenting subject of an Army experiment to test the effects of LSD on human subjects could not bring a constitutional 

tort for damages). These considerations are also the basis of the Court’s construction 

of the Federal Tort Claims Act so that it does not reach injuries arising out of or 

in the course of military activity. Feres v. United States, 340 U.S. 135 (1950). In 

United States v. Johnson, 481 U.S. 681 (1987), four Justices urged reconsideration 

of Feres, but that has not occurred. 

for possible future conscription. 1544 Emphasizing the unique, separate status of the military, the necessity to indoctrinate men in 

obedience and discipline, the tradition of military neutrality in political affairs, and the need to protect troop morale, the Court 

upheld the validity of military post regulations, backed by congressional enactments, banning speeches and demonstrations of a partisan political nature and the distribution of literature without 

prior approval of post headquarters, with the commander authorized to keep out only those materials that would clearly endanger 

the loyalty, discipline, or morale of troops on the base. 1545 On the 

same basis, the Court rejected challenges on constitutional and 

statutory grounds to military regulations requiring servicemen to 

obtain approval from their commanders before circulating petitions 

on base, in the context of circulations of petitions for presentation 

to Congress. 1546 And the statements of a military officer urging disobedience to certain orders could be punished under provisions that 

would have been of questionable validity in a civilian context. 1547

Reciting the considerations previously detailed, the Court has refused to allow enlisted men and officers to sue to challenge or set 

aside military decisions and actions. 1548

Congress has a plenary and exclusive power to determine the 

age at which a soldier or seaman shall be received, the compensation he shall be allowed, and the service to which he shall be assigned. This power may be exerted to supersede parents’ control of 

minor sons who are needed for military service. Where the statute 

requiring the consent of parents for enlistment of a minor son did 

not permit such consent to be qualified, their attempt to impose a 

condition that the son carry war risk insurance for the benefit of 

334 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1549 United States v. Williams, 302 U.S. 46 (1937). See also In re Grimley, 137 

U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890). 1550Wissner v. Wissner, 338 U.S. 655 (1950); Ridgway v. Ridgway, 454 U.S. 46 

(1981). In the absence of express congressional language, like that found in 

Wissner, the Court nonetheless held that a state court division under its community 

property system of an officer’s military retirement benefits conflicted with the federal program and could not stand. McCarty v. McCarty, 453 U.S. 210 (1981). See

also Porter v. Aetna Casualty Co., 370 U.S. 159 (1962) (exemption from creditors’ 

claims of disability benefits deposited by a veteran’s guardian in a savings and loan 

association). 1551Dameron v. Brodhead, 345 U.S. 322 (1953). See also California v. Buzard, 

382 U.S. 386 (1966); Sullivan v. United States, 395 U.S. 169 (1969). 1552McKinley v. United States, 249 U.S. 397 (1919). 1553The Uniform Code of Military Justice of 1950, 64 Stat. 107, as amended by 

the Military Justice Act of 1968, 82 Stat. 1335, 10 U.S.C. § 801 et seq. For prior 

acts, see 12 Stat. 736 (1863); 39 Stat. 650 (1916). See Loving v. United States, 517 

U.S. 748 (1996) (in context of the death penalty under the UCMJ). 1554 Compare Solorio v. United States, 483 U.S. 435, 441–47 (1987) (majority 

opinion), with id. at 456–61 (dissenting opinion), and O’Callahan v. Parker, 395 U.S. 

258, 268–72 (1969) (majority opinion), with id. at 276–80 (Justice Harlan dissenting). See Duke & Vogel, The Constitution and the Standing Army: Another Problem of Court-Martial Jurisdiction, 13 VAND. L. REV. 435 (1960). 

his mother was not binding on the Government. 1549 Since the possession of government insurance payable to the person of his choice 

is calculated to enhance the morale of the serviceman, Congress 

may permit him to designate any beneficiary he desires, irrespective of state law, and may exempt the proceeds from the claims of 

creditors. 1550 Likewise, Congress may bar a State from taxing the 

tangible, personal property of a soldier, assigned for duty therein, 

but domiciled elsewhere. 1551 To safeguard the health and welfare 

of the armed forces, Congress may authorize the suppression of 

bordellos in the vicinity of the places where forces are stationed. 1552

Trial and Punishment of Offenses: Servicemen, Civilian 

Employees, and Dependents 

Under its power to make rules for the government and regulation of the armed forces, Congress has set up a system of criminal 

law binding on all servicemen, with its own substantive laws, its 

own courts and procedures, and its own appeals procedure. 1553 The

drafters of these congressional enactments conceived of a military 

justice system with application to all servicemen wherever they 

are, to reservists while on inactive duty training, and to certain civilians in special relationships to the military. In recent years, all 

these conceptions have been restricted. 

Servicemen.—Although there had been extensive disagreement about the practice of court-martial trial of servicemen for 

nonmilitary offenses, 1554 the matter never was raised in substantial degree until the Cold War period when the United States found 

ART. I—LEGISLATIVE DEPARTMENT 335

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1555 395 U.S. 258 (1969). 1556 395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971); 

Gosa v. Mayden, 413 U.S. 665 (1973). 1557 483 U.S. 435 (1987). 1558 483 U.S. at 450–51. 1559 483 U.S. at 448. Although the Court of Military Appeals had affirmed 

Solorio’s military-court conviction on the basis that the service-connection test had 

been met, the Court elected to reconsider and overrule O’Callahan altogether. 1560 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 138–139 (1866); Ex parte Quirin, 

317 U.S. 1, 40 (1942). The matter was raised but left unresolved in Middendorf v. 

Henry, 425 U.S. 25 (1976). 1561See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206 

U.S. 333 (1907). 1562 United States v. Jacoby, 11 U.S.C.M.A. 428, 29 C.M.R. 244 (1960); United 

States v. Tempia, 16 U.S.C.M.A. 629, 37 C.M.R. 249 (1967). This conclusion by the 

Court of Military Appeals is at least questioned and perhaps disapproved in 

Middendorf v. Henry, 425 U.S. 25, 43–48 (1976), in the course of overturning a CMA 

rule that counsel was required in summary court-martial. For the CMA’s response 

to the holding see United States v. Booker, 5 M. J. 238 (C.M.A. 1977), rev’d in part 

on reh., 5 M. J. 246 (C.M.A. 1978). 

it essential to maintain both at home and abroad a large standing 

army in which great numbers of servicemen were draftees. In 

O’Callahan v. Parker, 1555 the Court held that court-martial jurisdiction was lacking to try servicemen charged with a crime that 

was not ‘‘service connected.’’ The Court attempted to assay no definition of ‘‘service connection,’’ but among the factors it noted were 

that the crime in question was committed against a civilian in 

peacetime in the United States off-base while the serviceman was 

lawfully off duty. 1556 O’Callahan was overruled in Solorio v. United 

States, 1557 the Court holding that ‘‘the requirements of the Constitution are not violated where . . . a court-martial is convened to 

try a serviceman who was a member of the armed services at the 

time of the offense charged.’’ 1558 Chief Justice Rehnquist’s opinion 

for the Court insisted that O’Callahan had been based on erroneous readings of English and American history, and that ‘‘the 

service connection approach . . . has proved confusing and difficult 

for military courts to apply.’’ 1559

With regard to trials before courts-martial, it is not clear what 

provisions of the Bill of Rights and other constitutional guarantees 

do apply. The Fifth Amendment expressly excepts ‘‘[c]ases arising 

in the land and naval forces’’ from its grand jury provision, and 

there is an implication that these cases are also excepted from the 

Sixth Amendment. 1560 The double jeopardy provision of the Fifth 

Amendment appears to be applicable. 1561 The Court of Military Appeals now holds that servicemen are entitled to all constitutional 

rights except those expressly or by implication inapplicable to the 

military. 1562 The Uniform Code of Military Justice, supplemented 

by the Manual for Courts-Martial, affirmatively grants due process 

rights roughly comparable to civilian procedures, so that many 

336 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1563The UCMJ guarantees counsel, protection from self-incrimination and double jeopardy, and warnings of rights prior to interrogation, to name a few. 1564 Cf. O’Callahan v. Parker, 395 U.S. 258, 263–264 (1969). 1565 10 U.S.C. § 867. 1566Parker v. Levy, 417 U.S. 733 (1974). Article 133 punishes a commissioned 

officer for ‘‘conduct unbecoming an officer and gentleman,’’ and Article 134 punishes 

any person subject to the Code for ‘‘all disorders and neglects to the prejudice of 

good order and discipline in the armed forces.’’ 1567 417 U.S. at 756. 1568 417 U.S. at 757-61. 1569Kurtz v. Moffitt, 115 U.S. 487 (1885); Dynes v. Hoover, 61 U.S. (20 How.) 

65 (1858). Judges of Article I courts do not have the independence conferred by security of tenure and of compensation. 1570Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858). 1571Military Justice Act of 1983, P.L. 98–209, 97 Stat. 1393, 28 U.S.C. § 1259. 

such issues are unlikely to arise absolutely necessitating constitutional analysis. 1563 However, the Code leaves intact much of the 

criticized traditional structure of courts-martial, including the pervasive possibilities of command influence, 1564 and the Court of 

Military Appeals is limited on the scope of its review, 1565 thus creating areas in which constitutional challenges are likely. 

Upholding Articles 133 and 134 of the Uniform Code of Military Justice, the Court stressed the special status of military society. 1566 This difference has resulted in a military Code regulating 

aspects of the conduct of members of the military that in the civilian sphere would go unregulated, but on the other hand the penalties imposed range from the severe to well below the threshold 

of that possible in civilian life. Because of these factors, the Court, 

while agreeing that constitutional limitations applied to military 

justice, was of the view that the standards of constitutional guarantees were significantly different in the military than in civilian 

life. Thus, the vagueness challenge to the Articles was held to be 

governed by the standard applied to criminal statutes regulating 

economic affairs, the most lenient of vagueness standards. 1567 Neither did application of the Articles to conduct essentially composed 

of speech necessitate a voiding of the conviction, inasmuch as the 

speech was unprotected, and, even while it might reach protected 

speech the officer here was unable to raise that issue. 1568

Military courts are not Article III courts but agencies established pursuant to Article I. 1569 It was established in the last century that the civil courts have no power to interfere with courtsmartial and that court-martial decisions are not subject to civil 

court review. 1570 Until August 1, 1984, the Supreme Court had no 

jurisdiction to review by writ of certiorari the proceedings of a military commission, but Congress has now conferred appellate jurisdiction of decisions of the Court of Military Appeals. 1571 Prior to 

this time, civil court review of court-martial decisions was possible 

ART. I—LEGISLATIVE DEPARTMENT 337

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1572 Cf. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ex parte Yerger, 75 U.S. 

(8 Wall.) 85 (1869); Ex parte Reed, 100 U.S. 13 (1879). While federal courts have 

jurisdiction to intervene in military court proceedings prior to judgment, as a matter 

of equity, following the standards applicable to federal court intervention in state 

criminal proceedings, they should act when the petitioner has not exhausted his 

military remedies only in extraordinary circumstances. Schlesinger v. Councilman, 

420 U.S. 738 (1975). 1573 Ex parte Reed, 100 U.S. 13 (1879); Swaim v. United States, 165 U.S. 553 

(1897); Carter v. Roberts, 177 U.S. 496 (1900); Hiatt v. Brown, 339 U.S. 103 (1950). 1574 346 U.S. 137 (1953). 1575 Cf. Fowler v. Wilkinson, 353 U.S. 583 (1957); United States v. Augenblick, 

393 U.S. 348, 350 n. 3, 351 (1969); Parker v. Levy, 417 U.S. 733 (1974); Secretary 

of the Navy v. Avrech, 418 U.S. 676 (1974). 1576 E.g., Calley v. Callaway, 519 F. 2d 184, 194–203 (5th Cir. 1975) (en

banc), cert. denied, 425 U.S. 911 (1976). 1577 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). See also Lee v. 

Madigan, 358 U.S. 228 (1959). 1578Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 

(1956) 1579 Reid v. Covert, 354 U.S. 1 (1957) (voiding court-martial convictions of two 

women for murdering their soldier husbands stationed in Japan). Chief Justice Warren and Justices Black, Douglas, and Brennan were of the opinion Congress’ power 

under clause 14 could not reach civilians. Justices Frankfurter and Harlan concurred, limited to capital cases. Justices Clark and Burton dissented. 1580Kinsella v. United States ex rel. Singleton, 361 U.S. 234 (1960) (voiding 

court-martial conviction for noncapital crime committed overseas by civilian wife of 

soldier). The majority could see no reason for distinguishing between capital and 

through habeas corpus jurisdiction, 1572 an avenue that continues to 

exist, but the Court severely limited the scope of such review, restricting it to the issue whether the court-martial has jurisdiction 

over the person tried and the offense charged. 1573 In Burns v. Wilson, 1574 however, at least seven Justices appeared to reject the traditional view and adopt the position that civil courts on habeas corpus could review claims of denials of due process rights to which 

the military had not given full and fair consideration. Since 

Burns, the Court has thrown little light on the range of issues cognizable by a federal court in such litigation 1575 and the lower federal courts have divided several ways. 1576

Civilians and Dependents.—In recent years, the Court rejected the view of the drafters of the Code of Military Justice with 

regard to the persons Congress may constitutionally reach under 

its clause 14 powers. Thus, it held that an honorably discharged 

former soldier, charged with having committed murder during military service in Korea, could not be tried by court-martial but must 

be charged in federal court, if at all. 1577 After first leaning the 

other way, 1578 the Court on rehearing found lacking court-martial 

jurisdiction, at least in peacetime, to try civilian dependents of 

service personnel for capital crimes committed outside the United 

States. 1579 Subsequently, the Court extended its ruling to civilian 

dependents overseas charged with noncapital crimes 1580 and to ciVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00275 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
338 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

noncapital crimes. Justices Harlan and Frankfurter dissented on the ground that 

in capital cases greater constitutional protection, available in civil courts, was required. 1581Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel. 

Guagliardo, 361 U.S. 281 (1960). 1582 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1180 (1833). 1583 297 U.S. 288 (1936). 1584 39 Stat. 166 (1916). 1585 297 U.S. at 327–328. 1586 60 Stat. 755 (1946), 42 U.S.C. § 1801 et seq. 1587 108(a), 70 Stat. 374, 378 (1956), 23 U.S.C. § 101(b), naming the Interstate 

System the ‘‘National System of Interstate and Defense Highways.’’ 1588 72 Stat. 1580 (1958), as amended, codified to various sections of Titles 20 

and 42. 

vilian employees of the military charged with either capital or noncapital crimes. 1581

WAR LEGISLATION 

War Powers in Peacetime 

To some indeterminate extent, the power to wage war embraces the power to prepare for it and the power to deal with the 

problems of adjustment following its cessation. Justice Story emphasized that ‘‘[i]t is important also to consider, that the surest 

means of avoiding war is to be prepared for it in peace. . . . How

could a readiness for war in time of peace be safely prohibited, unless we could in like manner prohibit the preparations and establishments of every hostile nation? . . . It will be in vain to oppose 

constitutional barriers to the impulse of self-preservation.’’ 1582 Authoritative judicial recognition of the power is found in Ashwander

v. Tennessee Valley Authority, 1583 in which the power of the Federal Government to construct and operate a dam and power plant, 

pursuant to the National Defense Act of June 3, 1916, 1584 was sustained. The Court noted that the assurance of an abundant supply 

of electrical energy and of nitrates, which would be produced at the 

site, ‘‘constitute national defense assets’’ and the project was justifiable under the war powers. 1585

Perhaps the most significant example of legislation adopted 

pursuant to the war powers when no actual ‘‘shooting war’’ was in 

progress, with the object of strengthening national defense, was the 

Atomic Energy Act of 1946, establishing a body to oversee and further the research into and development of atomic energy for both 

military and civil purposes. 1586 Congress has also authorized a vast 

amount of highway construction, pursuant to its conception of their 

‘‘primary importance to the national defense,’’ 1587 and the first extensive program of federal financial assistance in the field of education was the National Defense Education Act. 1588 The post-World 

ART. I—LEGISLATIVE DEPARTMENT 339

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1589 Universal Military Training and Service Act of 1948, 62 Stat. 604, as 

amended, 50 U.S.C. App. §§ 451–473. Actual conscription has been precluded as of 

July 1, 1973, P. L. 92–129, 85 Stat. 353, 50 U. S. C. App. 467(c), although registration for possible conscription is in effect. P. L. 96–282, 94 Stat. 552 (1980). 1590 National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended, codified in various sections of Titles 5, 18, and 50. 1591Title II of the Defense Production Act Amendments of 1970, 84 Stat. 799, 

as amended, provided temporary authority for wage and price controls, a power 

which the President subsequently exercised. E.O. 11615, 36 Fed Reg. 15727 (August 

16, 1971). Subsequent legislation expanded the President’s authority. 85 Stat. 743, 

12 U.S.C. § 1904 note. 1592 Renogtiation Act of 1951, 65 Stat. 7, as amended, 50 U.S.C. App. § 1211 et 

seq. 1593 E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961); Peters v. Hobby, 349 U.S. 331 (1955). 1594Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 385 U.S. 475 

(1967). 1595 United States v. Robel, 389 U.S. 258 (1967); United States v. Brown, 381 

U.S. 437 (1965). 1596Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1871) (sustaining a congressional deduction from a statute of limitations the period during which the Civil War 

prevented the bringing of an action). See also Mayfield v. Richards, 115 U.S. 137 

(1885). 1597 251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920). 1598 Act of November 21, 1918, 40 Stat. 1046. 1599 251 U.S. at 163. 

War II years, though nominally peacetime, constituted the era of 

the Cold War and the occasions for several armed conflicts, notably 

in Korea and Indochina, in which the Congress enacted much legislation designed to strengthen national security, including an apparently permanent draft, 1589 authorization of extensive space exploration, 1590 authorization for wage and price controls, 1591 and continued extension of the Renegotiation Act to recapture excess profits on defense contracts. 1592 Additionally, the period saw extensive 

regulation of matter affecting individual rights, such as loyalty-security programs, 1593 passport controls, 1594 and limitations on members of the Communist Party and associated organizations, 1595 all

of which are dealt with in other sections. 

A particular province of such legislation is that designed to effect a transition from war to peace. The war power ‘‘is not limited 

to victories in the field. . . . It carries with it inherently the power 

to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.’’ 1596

This principle was given a much broader application after the First 

World War in Hamilton v. Kentucky Distilleries Co., 1597 where the 

War Time Prohibition Act 1598 adopted after the signing of the Armistice was upheld as an appropriate measure for increasing war 

efficiency. The Court was unable to conclude that the war emergency had passed with the cessation of hostilities. 1599 But in 1924, 

it held that a rent control law for the District of Columbia, which 

340 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1600 Block v. Hirsh, 256 U.S. 135 (1921). 1601 Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924). 1602Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947). 1603 333 U.S. at 143–44. 1604Ludecke v. Watkins, 335 U.S. 160 (1948). 1605 335 U.S. at 170. 1606Lichter v. United States, 334 U.S. 742, 779 (1948). 1607For an extensive consideration of this subject in the context of the President’s redelegation of it, see N. GRUNDSTEIN, PRESIDENTIAL DELEGATION OF AUTHORITY IN WARTIME (1961). 1608 In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), the objection 

was dismissed without discussion. The issue was decided by reference to peacetime 

precedents in Yakus v. United States, 321 U.S. 414, 424 (1944). 

had been previously upheld, 1600 had ceased to operate because the 

emergency which justified it had come to an end. 1601

A similar issue was presented after World War II, and the 

Court held that the authority of Congress to regulate rents by virtue of the war power did not end with the presidential proclamation terminating hostilities on December 31, 1946. 1602 However, the 

Court cautioned that ‘‘[w]e recognize the force of the argument that 

the effects of war under modern conditions may be felt in the economy for years and years, and that if the war power can be used 

in days of peace to treat all the wounds which war inflicts on our 

society, it may not only swallow up all other powers of Congress 

but largely obliterate the Ninth and Tenth Amendments as well. 

There are no such implications in today’s decision.’’ 1603

In the same year, the Court sustained by only a five-to-four 

vote the Government’s contention that the power which Congress 

had conferred upon the President to deport enemy aliens in times 

of a declared war was not exhausted when the shooting 

stopped. 1604 ‘‘It is not for us to question,’’ said Justice Frankfurter 

for the Court, ‘‘a belief by the President that enemy aliens who 

were justifiably deemed fit subjects for internment during active 

hostilites [sic] do not lose their potency for mischief during the period of confusion and conflict which is characteristic of a state of 

war even when the guns are silent but the peace of Peace has not 

come.’’ 1605

Delegation of Legislative Power in Wartime 

The Court has insisted that in times of war as in times of 

peace ‘‘the respective branches of the Government keep within the 

power assigned to each,’’ 1606 thus raising the issue of permissible 

delegation, inasmuch as during a war Congress has been prone to 

delegate many more powers to the President than at other 

times. 1607 But the number of cases actually discussing the matter 

is few. 1608 Two theories have been advanced at times when the delVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00278 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 341

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1609 88 U.S. (21 Wall.) 73 (1875). 1610 88 U.S. at 96–97. Cf. United States v. Chemical Foundation, 272 U.S. 1 

(1926). 1611 320 U.S. 81 (1943). 1612 320 U.S. at 91–92, 104. 1613 320 U.S. at 104. 1614 334 U.S. 742 (1948). 

egation doctrine carried more force than it has in recent years. 

First, it is suggested that inasmuch as the war power is inherent 

in the Federal Government, and one shared by the legislative and 

executive branches, Congress does not really delegate legislative 

power when it authorizes the President to exercise the war power 

in a prescribed manner, a view which entirely overlooks the fact 

that the Constitution expressly vests the war power as a legislative 

power in Congress. Second, it is suggested that Congress’ power to 

delegate in wartime is limited as in other situations but that the 

existence of a state of war is a factor weighing in favor of the validity of the delegation. 

The first theory was fully stated by Justice Bradley in Hamilton v. Dillin, 1609 upholding a levy imposed by the Secretary of the 

Treasury pursuant to an act of Congress. To the argument that the 

levy was a tax the fixing of which Congress could not delegate, Justice Bradley noted that the power exercised ‘‘does not belong to the 

same category as the power to levy and collect taxes, duties, and 

excises. It belongs to the war powers of the Government. . . .’’ 1610

Both theories found expression in different passages of Chief 

Justice Stone’s opinion in Hirabayashi v. United States, 1611 upholding executive imposition of a curfew on Japanese-Americans pursuant to legislative delegation. On the one hand, he spoke to Congress and the Executive, ‘‘acting in cooperation,’’ to impose the curfew, 1612 while on the other hand, he noted that a delegation in 

which Congress has determined the policy and the rule of conduct, 

leaving to the Executive the carrying-out of the policy, is permissible delegation. 1613

A similar ambiguity is found in Lichter v. United States, 1614

upholding the Renegotiation Act, but taken as a whole the Court 

there espoused the second theory. ‘‘The power [of delegation] is especially significant in connection with constitutional war powers 

under which the exercise of broad discretion as to method to be employed may be essential to an effective use of its war powers by 

Congress. The degree to which Congress must specify its policies 

and standards in order that the administrative authority granted 

may not be an unconstitutional delegation of its own legislative 

power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides 

342 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1615 334 U.S. at 778–79, 782. 1616 334 U.S. at 778–83. 1617 71 U.S. (4 Wall.) 2 (1866). 1618 71 U.S. at 127. 1619 71 U.S. at 132, 138. 1620 71 U.S. at 121, 139-42. 1621 327 U.S. 304 (1946). 

equally in war and in peace, they must be read with the realistic 

purposes of the entire instrument fully in mind.’’ 1615 The Court 

then examined the exigencies of war and concluded that the delegation was valid. 1616

CONSTITUTIONAL RIGHTS IN WARTIME 

Constitution and the Advance of the Flag 

Theater of Military Operations.—Military law to the exclusion of constitutional limitations otherwise applicable is the rule in 

the areas in which military operations are taking place. This view 

was assumed by all members of the Court in Ex parte Milligan, 1617

in which the trial by a military commission of a civilian charged 

with disloyalty in a part of the country remote from the theater of 

military operations was held invalid. Although unanimous in the 

result, the Court divided five-to-four on the ground of decision. The 

point of disagreement was over which department of the Government had authority to say with finality what regions lie within the 

theater of military operations. The majority claimed this function 

for the courts and asserted that an area in which the civil courts 

were open and functioning does not; 1618 the minority argued that 

the question was for Congress’ determination. 1619 The entire Court 

rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation. 1620

Similarly, in Duncan v. Kahanamoku, 1621 the Court declared 

that the authority granted by Congress to the territorial governor 

of Hawaii to declare marital law under certain circumstances, 

which he exercised in the aftermath of the attack on Pearl Harbor, 

did not warrant the supplanting of civil courts with military tribunals and the trial of civilians for civilian crimes in these military 

tribunals at a time when no obstacle stood in the way of the operation of the civil courts, except, of course, the governor’s order. 

Enemy Country.—It has seemed reasonably clear that the 

Constitution does not follow the advancing troops into conquered 

territory. Persons in such territory have been held entirely beyond 

the reach of constitutional limitations and subject to the laws of 

war as interpreted and applied by the Congress and the PresiVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00280 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 343

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1622 New Orleans v. The Steamship Co., 87 U.S. (20 Wall.) 387 (1874); Santiago 

v. Nogueras, 214 U.S. 260 (1909); Madsen v. Kinsella, 343 U.S. 341 (1952). 1623 100 U.S. 158, 170 (1880). 1624De Lima v. Bidwell, 182 U.S. 1 (1901); Dooley v. United States, 182 U.S. 

222 (1901); Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 

138 (1904). 1625 354 U.S. 1 (1957). 1626 354 U.S. at 6, 7. 1627For a comprehensive treatment, preceding Reid v. Covert, of the matter in 

the context of the post-War war crimes trials, see Fairman, Some New Problems of 

the Constitution Following the Flag, 1 STAN. L. REV. 587 (1949). 1628 12 U.S. (8 Cr.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878). 

dent. 1622 ‘‘What is the law which governs an army invading an 

enemy’s country?’’ the Court asked in Dow v. Johnson. 1623 ‘‘It is not 

the civil law of the invaded country; it is not the civil law of the 

conquering country; it is military law—the law of war—and its supremacy for the protection of the officers and soldiers of the army, 

when in service in the field in the enemy’s country, is as essential 

to the efficiency of the army as the supremacy of the civil law at 

home, and, in time of peace, is essential to the preservation of liberty.’’

These conclusions follow not only from the usual necessities of 

war but as well from the Court’s doctrine that the Constitution is 

not automatically applicable in all territories acquired by the 

United States, the question turning upon whether Congress has 

made the area ‘‘incorporated’’ or ‘‘unincorporated’’ territory. 1624 But

in Reid v. Covert, 1625 Justice Black in a plurality opinion of the 

Court asserted that wherever the United States acts it must do so 

only ‘‘in accordance with all the limitations imposed by the Constitution. . . . [C]onstitutional protections for the individual were designed to restrict the United States Government when it acts outside of this country, as well as at home.’’ 1626 The case, however, involved the trial of a United States citizen abroad and the language 

quoted was not subscribed to by a majority of the Court; thus, it 

must be regarded as a questionable rejection of the previous line 

of cases. 1627

Enemy Property.—In Brown v. United States, 1628 Chief Justice Marshall dealt definitively with the legal position of enemy 

property during wartime. He held that the mere declaration of war 

by Congress does not effect a confiscation of enemy property situated within the territorial jurisdiction of the United States, but the 

right of Congress by further action to subject such property to confiscation was asserted in the most positive terms. As an exercise 

of the war power, such confiscation was held not subject to the restrictions of the Fifth and Sixth Amendments. Since such confiscation is unrelated to the personal guilt of the owner, it is immaterial 

344 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1629Miller v. United States, 78 U.S. (11 Wall.) 268 (1871); Steehr v. Wallace, 255 

U.S. 239 (1921); Central Trust Co. v. Garvan, 254 U.S. 554 (1921); United States 

v. Chemical Foundation, 272 U.S. 1 (1926); Silesian-American Corp. v. Clark, 332 

U.S. 469 (1947); Cities Service Co. v. McGrath, 342 U.S. 330 (1952); Handelsbureau 

La Mola v. Kennedy, 370 U.S. 940 (1962); cf. Honda v. Clark, 386 U.S. 484 (1967). 1630The Siren, 80 U.S. (13 Wall.) 389 (1871). 1631The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867). 1632The Paquete Habana, 175 U.S. 677, 700, 711 (1900). 

whether the property belongs to an alien, a neutral, or even to a 

citizen. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an 

enemy of property within the reach of his power, whether within 

his territory or outside it, impairs his ability to resist the confiscating government while at the same time it furnishes to that government means for carrying on the war. 1629

Prizes of War.—The power of Congress with respect to prizes 

is plenary; no one can have any interest in prizes captured except 

by permission of Congress. 1630 Nevertheless, since international 

law is a part of our law, the Court will administer it so long as it 

has not been modified by treaty or by legislative or executive action. Thus, during the Civil War, the Court found that the Confiscation Act of 1861, and the Supplementary Act of 1863, which, in 

authorizing the condemnation of vessels, made provision for the 

protection of interests of loyal citizens, merely created a municipal 

forfeiture and did not override or displace the law of prize. It decided, therefore, that when a vessel was liable to condemnation 

under either law, the Government was at liberty to proceed under 

the most stringent rules of international law, with the result that 

the citizen would be deprived of the benefit of the protective provisions of the statute. 1631 Similarly, when Cuban ports were blockaded during the Spanish-American War, the Court held, over the 

vigorous dissent of three of its members, that the rule of international law exempting unarmed fishing vessels from capture was 

applicable in the absence of any treaty provision, or other public 

act of the Government in relation to the subject. 1632

The Constitution at Home in Wartime 

Personal Liberty.—‘‘The Constitution of the United States is 

a law for rulers and people, equally in war and in peace, and covers 

with the shield of its protection all classes of men, at all times, and 

under all circumstances. No doctrine, involving more pernicious 

consequences, was ever invented by the wit of man than that any 

of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or 

despotism, but the theory of necessity on which it is based is false; 

ART. I—LEGISLATIVE DEPARTMENT 345

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1633 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–121 (1866). 1634 ‘‘During the late wicked Rebellion, the temper of the times did not allow 

that calmness in deliberation and discussion so necessary to a correct conclusion of 

a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which were happily terminated. 

Now that the public safety is assured, this question, as well as all others, can be 

discussed and decided without passion or the admixture of any element not required 

to form a legal judgment.’’ Id. at 109 (emphasis by Court). 1635Schenck v. United States, 249 U.S. 47 (1919); Debs v. United States, 249 

U.S. 211 (1919); Sugarman v. United States, 249 U.S. 182 (1919); Frohwerk v. 

United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919). 1636 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918). 1637Gilbert v. Minnesota, 254 U.S. 325 (1920). 1638Schenck v. United States, 249 U.S. 47, 52 (1919). 

for the government, within the Constitution, has all the powers 

granted to it, which are necessary to preserve its existence; as has 

been happily proved by the result of the great effort to throw off 

its just authority.’’ 1633

Ex parte Milligan, from which these words are quoted, is justly 

deemed one of the great cases undergirding civil liberty in this 

country in times of war or other great crisis, holding that except 

in areas in which armed hostilities have made enforcement of civil 

law impossible constitutional rights may not be suspended and civilians subjected to the vagaries of military justice. Yet, the words 

were uttered after the cessation of hostilities, and the Justices 

themselves recognized that with the end of the shooting there arose 

the greater likelihood that constitutional rights could be and would 

be observed and that the Court would require the observance. 1634

This pattern recurs with each critical period. 

That the power of Congress to punish seditious utterances in 

wartime is limited by the First Amendment was assumed by the 

Court in a series of cases, 1635 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917. 1636 The Court 

also upheld a state law making it an offense for persons to advocate that citizens of the State should refuse to assist in prosecuting 

war against enemies of the United States. 1637 Justice Holmes matter-of-factly stated the essence of the pattern that we have mentioned. ‘‘When a nation is at war many things that might be said 

in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court 

could regard them as protected by any constitutional right.’’ 1638 By

far, the most dramatic restraint of personal liberty imposed during 

World War II was the detention and relocation of the Japanese 

residents of the Western States, including those who were nativeborn citizens of the United States. When various phases of this program were challenged, the Court held that in order to prevent espionage and sabotage, the authorities could restrict the movement of 

346 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1639 Hirabayashi v. United States, 320 U.S. 81 (1943). 1640Korematsu v. United States, 323 U.S. 214 (1944). 1641 Ex parte Endo, 323 U.S. 283 (1944). 1642 E.g., Dennis v. United States, 341 U.S. 494 (1951); Communist Party v. Subversive Activities Control Board, 367 U.S. 1 (1961); American Communications Association v. Douds, 339 U.S. 382 (1950). 1643 E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive 

Activities Control Board, 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437 

(1965). 1644 United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of 

State, 378 U.S. 500 (1964). And see Schneider v. Smith, 390 U.S. 17 (1968). 1645 § 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50 U.S.C. 

§ 784(a)(1)(D). 1646 389 U.S. at 264–66. Justices Harlan and White dissented, contending that 

the right of association should have been balanced against the public interest and 

finding the weight of the latter the greater. Id. at 282. 1647 403 U.S. 713 (1971). 1648The result in the case was reached by a six-to-three majority. The three dissenters, Chief Justice Burger, 403 U.S. at 748, Justice Harlan, id. at 752, and Justice Blackmun, id. at 759, would have granted an injunction in the case; Justices 

Stewart and White, id. at 727, 730, would not in that case but could conceive of 

cases in which they would. 

these persons by a curfew order, 1639 even by a regulation excluding 

them from defined areas, 1640 but that a citizen of Japanese ancestry whose loyalty was conceded could not be detained in a relocation camp. 1641

A mixed pattern emerges from an examination of the Cold War 

period. Legislation designed to regulate and punish the organizational activities of the Communist Party and its adherents was at 

first upheld 1642 and then in a series of cases was practically vitiated. 1643 Against a contention that Congress’ war powers had been 

utilized to achieve the result, the Court struck down for the second 

time in history a congressional statute as an infringement of the 

First Amendment. 1644 It voided a law making it illegal for any 

member of a ‘‘communist-action organization’’ to work in a defense 

facility. 1645 The majority reasoned that the law overbroadly required a person to choose between his First Amendment-protected 

right of association and his right to hold a job, without attempting 

to distinguish between those persons who constituted a threat and 

those who did not. 1646

On the other hand, in New York Times Co. v. United 

States, 1647 a majority of the Court agreed that in appropriate circumstances the First Amendment would not preclude a prior restraint of publication of information that might result in a sufficient degree of harm to the national interest, although a different 

majority concurred in denying the Government’s request for an injunction in that case. 1648

Enemy Aliens.—The Alien Enemy Act of 1798 authorized the 

President to deport any alien or to license him to reside within the 

ART. I—LEGISLATIVE DEPARTMENT 347

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1649 1 Stat. 577 (1798). 1650 6 WRITING OF JAMES MADISON 360–361 (G. Hunt ed., 1904). 1651 40 Stat. 531 (1918), 50 U.S.C. § 21. 1652 335 U.S. 160 (1948). 1653 Ex parte Quirin, 317 U.S. 1 (1942). 1654Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1852). 1655 120 U.S. 227 (1887). 1656 120 U.S. at 239. 

United States at any place to be designated by the President. 1649

Though critical of the measure, many persons conceded its constitutionality on the theory that Congress’ power to declare war 

carried with it the power to treat the citizens of a foreign power 

against which war has been declared as enemies entitled to summary justice. 1650 A similar statute was enacted during World War 

I 1651 and was held valid in Ludecke v. Watkins. 1652

During World War II, the Court unanimously upheld the 

power of the President to order to trial before a military tribunal 

German saboteurs captured within this Country. 1653 Enemy combatants, said Chief Justice Stone, who without uniforms come secretly through the lines during time of war, for the purpose of committing hostile acts, are not entitled to the status of prisoners of 

war but are unlawful combatants punishable by military tribunals. 

Eminent Domain.—An often-cited dictum uttered shortly 

after the Mexican War asserted the right of an owner to compensation for property destroyed to prevent its falling into the hands of 

the enemy, or for that taken for public use. 1654 In United States v. 

Russell, decided following the Civil War, a similar conclusion was 

based squarely on the Fifth Amendment, although the case did not 

necessarily involve the point. Finally, in United States v. Pacific 

R.R., 1655 also a Civil War case, the Court held that the United 

States was not responsible for the injury or destruction of private 

property by military operations, but added that it did not have in 

mind claims for property of loyal citizens taken for the use of the 

national forces. ‘‘In such cases,’’ the Court said, ‘‘it has been the 

practice of the government to make compensation for the property 

taken. . . . although the seizure and appropriation of private property under such circumstances by the military authorities may not 

be within the terms of the constitutional clauses.’’ 1656

Meantime, however, in 1874, a committee of the House of Representatives, in an elaborate report on war claims growing out of 

the Civil War, had voiced the opinion that the Fifth Amendment 

embodies the distinction between a taking of property in the course 

of military operations or other urgent military necessity, and other 

takings for war purposes, and required compensation of owners in 

348 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment 

1657 H.R. Rep. No. 262, 43d Cong., 1st Sess. (1874), 39–40. 1658 United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United 

States v. Toronto Nav. Co., 338 U.S. 396 (1949); Kimball Laundry Co. v. United 

States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States 

v. Felin & Co., 334 U.S. 624 (1948); United States v. Petty Motor Co., 327 U.S. 372 

(1946); United States v. General Motors Corp., 323 U.S. 373 (1945). 1659 United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas and 

Black dissented. 1660 Block v. Hirsh, 256 U.S. 135 (1921). 1661 But quaere in the light of Nebbia v. New York, 291 U.S. 502 (1934), Olsen 

v. Nebraska ex rel. Western Reference and Bond Ass’n, 313 U.S. 236 (1941), and 

their progeny. 1662 Block v. Hirsh, 256 U.S. 135, 156 (1921). 1663 Yakus v. United States, 321 U.S. 414 (1944); Bowles v. Willingham, 321 

U.S. 503 (1944); Lockerty v. Phillips, 319 U.S. 182 (1943); Fleming v. Mohawk 

Wrecking & Lumber Co., 331 U.S. 111 (1947); Lichter v. United States, 334 U.S. 

742 (1948). 1664 Bowles v. Willingham, 321 U.S. 503, 519 (1944). 

the latter class of cases. 1657 In determining what constitutes just 

compensation for property requisitioned for war purposes during 

World War II, the Court has assumed that the Fifth Amendment 

is applicable to such takings. 1658 But as to property seized and destroyed to prevent its use by the enemy, it has relied on the principle enunciated in United States v. Pacific R.R. as justification for 

the conclusion that owners thereof are not entitled to compensation. 1659

Rent and Price Controls.—Even at a time when the Court 

was utilizing substantive due process to void economic regulations, 

it generally sustained such regulations in wartime. Thus, shortly 

following the end of World War I, it sustained, by a narrow margin, 

a rent control law for the District of Columbia, which not only limited permissible rent increases but also permitted existing tenants 

to continue in occupancy provided they paid rent and observed 

other stipulated conditions. 1660 Justice Holmes for the majority 

conceded in effect that in the absence of a war emergency the legislation might transcend constitutional limitations, 1661 but noted 

that ‘‘a public exigency will justify the legislature in restricting 

property rights in land to a certain extent without compensation.’’ 1662

During World War II and thereafter, economic controls were 

uniformly sustained. 1663 An apartment house owner who complained that he was not allowed a ‘‘fair return’’ on the property was 

dismissed with the observation that ‘‘a nation which can demand 

the lives of its men and women in the waging of . . . war is under 

no constitutional necessity of providing a system of price control . . . 

which will assure each landlord a ‘fair return’ on his property.’’ 1664

The Court also held that rental ceilings could be established withVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00286 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 349

Sec. 8—Powers of Congress Cls. 15 and 16—The Militia 

1665 321 U.S. at 521. The Court stressed, however, that Congress had provided 

for judicial review after the regulations and orders were made effective. 1666 Act of October 22, 1919, 2, 41 Stat. 297. 1667 United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921). 1668Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), affirmed, Houston v. Moore, 

18 U.S. (5 Wheat.) 1 (1820). 1669Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Tyler v. Defrees, 78 U.S. (11 

Wall.) 331 (1871). 1670 1 Stat. 424 (1795), 10 U.S.C. § 332. 1671Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827). 

out a prior hearing when the exigencies of national security precluded the delay which would ensue. 1665

But in another World War I case, the Court struck down a 

statute which penalized the making of ‘‘any unjust or unreasonable 

rate or charge in handling . . . any necessaries’’ 1666 as repugnant to 

the Fifth and Sixth Amendments in that it was so vague and indefinite that it denied due process and failed to give adequate notice of what acts would violate it. 1667

Clause 15. The Congress shall have Power *** To provide 

for calling forth the Militia to execute the Laws of the Union, 

suppress Insurrections and repel Invasions. 

Clause 16. The Congress shall have Power *** To provide 

for organizing, arming, and disciplining, the Militia, and for 

governing such Part of them as may be employed in the Service 

of the United States, reserving to the States respectively, the 

Appointment of the Officers, and the Authority of training the 

Militia according to the discipline prescribed by Congress. 

THE MILITIA CLAUSES 

Calling Out the Militia 

The States as well as Congress may prescribe penalties for failure to obey the President’s call of the militia. They also have a concurrent power to aid the National Government by calls under their 

own authority, and in emergencies may use the militia to put down 

armed insurrection. 1668 The Federal Government may call out the 

militia in case of civil war; its authority to suppress rebellion is 

found in the power to suppress insurrection and to carry on 

war. 1669 The act of February 28, 1795, 1670 which delegated to the 

President the power to call out the militia, was held constitutional. 1671 A militiaman who refused to obey such a call was not 

350 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cls. 15 and 16—The Militia 

1672 Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12 

Wheat.) 19 (1827). 1673 Houston v. Moore, 18 U.S. (5 Wheat.) 1, 16 (1820). Organizing and providing 

for the militia being constitutionally committed to Congress and statutorily shared 

with the Executive, the judiciary is precluded from exercising oversight over the 

process, Gilligan v. Morgan, 413 U.S. 1 (1973), although wrongs committed by troops 

are subject to judicial relief in damages. Scheuer v. Rhodes, 416 U.S. 233 (1974). 1674 39 Stat. 166, 197, 198, 200, 202, 211 (1916), codified in sections of Titles 10 

& 32. See Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181 

(1940). 1675Military and civilian personnel of the National Guard are state, rather than 

federal, employees and the Federal Government is thus not liable under the Tort 

Claims Act for their negligence. Maryland v. United States, 381 U.S. 41 (1965). 

‘‘employed in the service of the United States so as to be subject 

to the article of war,’’ but was liable to be tried for disobedience of 

the act of 1795. 1672

Regulation of the Militia 

The power of Congress over the militia ‘‘being unlimited, except in the two particulars of officering and training them . . . it 

may be exercised to any extent that may be deemed necessary by 

Congress. . . . The power of the state government to legislate on the 

same subjects, having existed prior to the formation of the Constitution, and not having been prohibited by that instrument, it remains with the States, subordinate nevertheless to the paramount 

law of the General Government . . .’’ 1673 Under the National Defense Act of 1916, 1674 the militia, which hitherto had been an almost purely state institution, was brought under the control of the 

National Government. The term ‘‘militia of the United States’’ was 

defined to comprehend ‘‘all able-bodied male citizens of the United 

States and all other able-bodied males who have . . . declared their 

intention to become citizens of the United States,’’ between the 

ages of eighteen and forty-five. The act reorganized the National 

Guard, determined its size in proportion to the population of the 

several States, required that all enlistments be for ‘‘three years in 

service and three years in reserve,’’ limited the appointment of officers to those who ‘‘shall have successfully passed such tests as to 

... physical, moral and professional fitness as the President shall 

prescribe,’’ and authorized the President in certain emergencies to 

‘‘draft into the military service of the United States to serve therein 

for the period of the war unless sooner discharged, any or all members of the National Guard and National Guard Reserve,’’ who 

thereupon should ‘‘stand discharged from the militia.’’ 1675

The militia clauses do not constrain Congress in raising and 

supporting a national army. The Court has approved the system of 

‘‘dual enlistment,’’ under which persons enlisted in state militia 

(National Guard) units simultaneously enlist in the National 

ART. I—LEGISLATIVE DEPARTMENT 351

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property 

1676Perpich v. Department of Defense, 496 U.S. 434 (1990). 1677 J. FISKE, THE CRITICAL PERIOD OF AMERICAN HISTORY, 1783–1789 112–113 

(1888); W. TINDALL, THE ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA 31–36 (1903). 

Guard of the United States, and, when called to active duty in the 

federal service, are relieved of their status in the state militia. Consequently, the restrictions in the first militia clause have no application to the federalized National Guard; there is no constitutional 

requirement that state governors hold a veto power over federal 

duty training conducted outside the United States or that a national emergency be declared before such training may take 

place. 1676

Clause 17. Congress shall have power *** To exercise exclusive Legislation in all Cases whatsoever, over such District 

(not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat 

of Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the same shall be, for the Erection 

of Forts, Magazines, Arsenals, dock-Yards, and other needful 

Buildings.

SEAT OF THE GOVERNMENT 

The Convention was moved to provide for the creation of a site 

in which to locate the Capital of the Nation, completely removed 

from the control of any State, because of the humiliation suffered 

by the Continental Congress on June 21, 1783. Some eighty soldiers, unpaid and weary, marched on the Congress sitting in Philadelphia, physically threatened and verbally abused the members, 

and caused the Congress to flee the City when neither municipal 

nor state authorities would take action to protect the members. 1677

Thus, Madison noted that ‘‘[t]he indispensable necessity of complete authority at the seat of government, carries its own evidence 

with it. . . . Without it, not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State 

comprehending the seat of government, for protection in the exercise of their duty, might bring on the national council an imputaVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00289 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
352 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property 

1678THE FEDERALIST, No. 43 (J. Cooke ed. 1961), 288–289. See also 3 J. 

STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1213, 1214 

(1833). 1679W. TINDALL, THE ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA 5–30 (1903). 

1680Maryland Laws 1798, ch. 2, p. 46; 13 Laws of Virginia 43 (Hening 1789). 1681 Act of July 16, 1790, 1 Stat. 130. In 1846, Congress authorized a referendum 

in Alexandria County on the question of retroceding that portion to Virginia. The 

voters approved and the area again became part of Virginia. Laws of Virginia 1845– 

46, ch. 64, p. 50; Act of July 9, 1846, 9 Stat. 35; Proclamation of September 7, 1846; 

9 Stat. 1000. Constitutional questions were raised about the retrocession but suit 

did not reach the Supreme Court until some 40 years later and the Court held that 

the passage of time precluded the raising of the question. Phillips v. Payne, 92 U.S. 

130 (1875). 1682 Act of February 27, 1801, 2, 2 Stat. 103. The declaration of the continuing 

effect of state law meant that law in the District was frozen as of the date of cession, unless Congress should change it, which it seldom did. For some of the problems, see Tayloe v. Thompson, 30 U.S. (5 Pet.) 358 (1831); Ex parte Watkins, 32 U.S. 

(7 Pet.) 568 (1833); Stelle v. Carroll, 37 U.S. (12 Pet.) 201 (1838); Van Ness v. 

United States Bank, 38 U.S. (13 Pet.) 17 (1839); United States v. Eliason, 41 U.S. 

(16 Pet.) 291 (1842). 1683 Act of March 3, 1801, 1, 2 Stat. 115. 1684The objections raised in the ratifying conventions and elsewhere seemed to 

have consisted of prediction of the perils to the Nation of setting up the National 

Government in such a place. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF

THE UNITED STATES 1215, 1216 (1833). 1685THE FEDERALIST, No. 43 (J. Cooke ed. 1961), 289. 1686Such a contention was cited and rebutted in 3 J. STORY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES 1218 (1833). 

tion of awe or influence, equally dishonorable to the government 

and dissatisfactory to the other members of the confederacy.’’ 1678

The actual site was selected by compromise, Northerners accepting the Southern-favored site on the Potomac in return for 

Southern support for a Northern aspiration, assumption of Revolutionary War debts by the National Government. 1679 Maryland and 

Virginia both authorized the cession of territory 1680 and Congress 

accepted. 1681 Congress divided the District into two counties, 

Washington and Alexandria, and provided that the local laws of the 

two States should continue in effect. 1682 It also established a circuit 

court and provided for the appointment of judicial and law enforcement officials. 1683

There seems to have been no consideration, at least none recorded, given at the Convention or in the ratifying conventions to 

the question of the governance of the citizens of the District. 1684

Madison in The Federalist did assume that the inhabitants ‘‘will 

have had their voice in the election of the government which is to 

exercise authority over them, as a municipal legislature for all local 

purposes, derived from their own suffrages, will of course be allowed them. . . .’’ 1685 Although there was some dispute about the 

constitutional propriety of permitting local residents a measure of 

‘‘home rule,’’ to use the recent term, 1686 almost from the first there 

ART. I—LEGISLATIVE DEPARTMENT 353

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property 

1687 Act of May 3, 1802, 2 Stat. 195; Act of May 15, 1820, 3 Stat. 583; Act of 

February 21, 1871, 16 Stat. 419; Act of June 20, 1874, 18 Stat. 116. The engrossing 

story of the postwar changes in the government is related in W. WHYTE, THE UNCIVIL WAR: WASHINGTON DURING THE RECONSTRUCTION (1958). 1688 Act of June 11, 1878, 20 Stat. 103. 1689 Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appendix to District of Columbia Code, Title I. 1690District of Columbia Self-Government and Governmental Reorganization 

Act, P.L. 93–198, 87 Stat. 774. 1691Twenty-third Amendment. 1692P.L. 91–405, 84 Stat. 848, D.C. Code, § 1–291. 1693 H.J. Res. 554, 95th Congress, passed the House on March 2, 1978, and the 

Senate on August 22, 1978, but only 16 States had ratified before the expiration 

after seven years of the proposal. 1694Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Heald v. District of 

Columbia, 259 U.S. 114 (1922). 1695District of Columbia v. John R. Thompson Co., 346 U.S. 100 (1953). The 

case upheld the validity of ordinances enacted by the District governing bodies in 

1872 and 1873 prohibiting racial discrimination in places of public accommodations. 1696 346 U.S. at 109–10. See also Thompson v. Lessee of Carroll, 63 U.S. (22 

How.) 422 (1860); Stoutenburgh v. Hennick, 129 U.S. 141 (1889). 1697 6 U.S. (2 Cr.) 445 (1805); see also Sere v. Pitot, 10 U.S. (6 Cr.) 332 (1810); 

New Orleans v. Winter, 14 U.S. (1 Wheat.) 91 (1816). The District was held to be 

a State within the terms of a treaty. Geofroy v. Riggs, 133 U.S. 258 (1890). 

were local elections provided for. In 1802, the District was divided 

into five divisions, in some of which the governing officials were 

elected; an elected mayor was provided in 1820. District residents 

elected some of those who governed them until this form of government was swept away in the aftermath of financial scandals in 

1874 1687 and replaced with a presidentially appointed Commission 

in 1878. 1688 The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city 

council. 1689 In recent years, Congress provided for a limited form 

of self-government in the District, with the major offices filled by 

election. 1690 District residents vote for President and Vice President 1691 and elect a nonvoting delegate to Congress. 1692 An effort 

by constitutional amendment to confer voting representation in the 

House and Senate failed of ratification. 1693

Constitutionally, it appears that Congress is neither required 

to provide for a locally elected government 1694 nor precluded from 

delegating its powers over the District to an elective local government. 1695 The Court has indicated that the ‘‘exclusive’’ jurisdiction 

granted was meant to exclude any question of state power over the 

area and was not intended to require Congress to exercise all powers itself. 1696

Chief Justice Marshall for the Court held in Hepburn v. 

Ellzey 1697 that the District of Columbia was not a State within the 

meaning of the diversity jurisdiction clause of Article III. This 

354 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property 

1698 Barney v. City of Baltimore, 73 U.S. (6 Wall.) 280 (1868); Hooe v. Jamieson, 

166 U.S. 395 (1897); Hooe v. Werner, 166 U.S. 399 (1897). 1699 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). 1700 337 U.S. at 588–600 (Justices Jackson, Black and Burton). 1701 337 U.S. at 604 (Justices Rutledge and Murphy). The dissents were by Chief 

Justice Vinson, id. at 626, joined by Justice Douglas, and by Justice Frankfurter, 

id. at 646, joined by Justice Reed. 1702 Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S. 

1 (1899). 1703 United States v. Moreland, 258 U.S. 433 (1922). 1704Wright v. Davidson, 181 U.S. 371, 384 (1901); cf. Adkins v. Children’s Hospital, 261 U.S. 525 (1923), overruled in West Coast Hotel Co. v. Parrish, 300 U.S. 

379 (1937). 1705Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524, 619 (1838): 

Shoemaker v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers 

v. United States, 286 U.S. 427, 435 (1932); O’Donoghue v. United States, 289 U.S. 

516, 518 (1933). 1706 In the District of Columbia Court Reform and Criminal Procedure Act of 

1970, P.L. 91–358, 111, 84 Stat. 475, D.C. Code, § 11–101, Congress specifically declared it was acting pursuant to Article I in creating the Superior Court and the 

view, adhered to for nearly a century and a half, 1698 was overturned by the Court in 1949, upholding the constitutionality of a 

1940 statute authorizing federal courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia 

and the citizens of a State. 1699 The decision was by a five to four 

division, but the five in the majority disagreed among themselves 

on the reasons. Three thought the statute to be an appropriate exercise of the power of Congress to legislate for the District of Columbia pursuant to this clause without regard to Article III. 1700

Two others thought that Hepburn v. Ellzey had been erroneously 

decided and would have overruled it. 1701 But six Justices rejected 

the former rationale and seven Justices rejected the latter one; 

since five Justices agreed, however, that the statute was constitutional, it was sustained. 

It is not disputed that the District is a part of the United 

States and that its residents are entitled to all the guarantees of 

the United States Constitution including the privilege of trial by 

jury 1702 and of presentment by a grand jury. 1703 Legislation restrictive of liberty and property in the District must find justification 

in facts adequate to support like legislation by a State in the exercise of its police power. 1704

Congress possesses over the District of Columbia the blended 

powers of a local and national legislature. 1705 This fact means that 

in some respects ordinary constitutional restrictions do not operate; 

thus, for example, in creating local courts of local jurisdiction in the 

District, Congress acts pursuant to its legislative powers under 

clause 17 and need not create courts that comply with Article III 

court requirements. 1706 And when legislating for the District ConVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00292 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 355

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property 

District of Columbia Court of Appeals and pursuant to Article III in continuing the 

United States District Court and the United States Court of Appeals for the District 

of Columbia. The Article I courts were sustained in Palmore v. United States, 411 

U.S. 389 (1973). See also Swain v. Pressley, 430 U.S. 372 (1977). The latter, federal 

courts, while Article III courts, traditionally have had some non-Article III functions 

imposed on them, under the ‘‘hybrid’’ theory announced in O’Donoghue v. United 

States, 289 U.S. 516 (1933). E.g., Hobson v. Hansen, 265 F. Supp. 902 (D.D.C. 

1967), appeal dismissed, 393 U.S. 801 (1968) (power then vested in District Court 

to appoint school board members). See also Keller v. Potomac Electric Co., 261 U.S. 

428 (1923); Embry v. Palmer, 107 U.S. 3 (1883). 1707 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821). 1708 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). 1709 Battle v. United States, 209 U.S. 36 (1908). 1710 Arlington Hotel v. Fant, 278 U.S. 439 (1929). 1711 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937). 1712 Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938). 1713 304 U.S. at 528. 1714 Battle v. United States, 209 U.S. 36 (1908); Johnson v. Yellow Cab Co., 321 

U.S. 383 (1944); Bowen v. Johnston, 306 U.S. 19 (1939). 1715Surplus Trading Co. v. Cook, 281 U.S. 647 (1930). 1716Western Union Tel. Co. v. Chiles, 214 U.S. 274 (1909); Arlington Hotel v. 

Fant, 278 U.S. 439 (1929); Pacific Coast Dairy v. Department of Agriculture, 318 

U.S. 285 (1943). The Assimilative Crimes Act of 1948, 18 U.S.C. § 13, making applicable to a federal enclave a subsequently enacted criminal law of the State in which 

the enclave is situated entails no invalid delegation of legislative power to the State. 

United States v. Sharpnack, 355 U.S. 286, 294, 296–297 (1958). 

gress remains the legislature of the Union, so that it may give its 

enactments nationwide operation to the extent necessary to make 

them locally effective. 1707

AUTHORITY OVER PLACES PURCHASED 

‘‘Places’’

This clause has been broadly construed to cover all structures 

necessary for carrying on the business of the National Government. 1708 It includes post offices, 1709 a hospital and a hotel located 

in a national park, 1710 and locks and dams for the improvement of 

navigation. 1711 But it does not cover lands acquired for forests, 

parks, ranges, wild life sanctuaries or flood control. 1712 Nevertheless, the Supreme Court has held that a State may convey, and the 

Congress may accept, either exclusive or qualified jurisdiction over 

property acquired within the geographical limits of a State, for purposes other than those enumerated in clause 17. 1713

After exclusive jurisdiction over lands within a State has been 

ceded to the United States, Congress alone has the power to punish 

crimes committed within the ceded territory. 1714 Private property 

located thereon is not subject to taxation by the State, 1715 nor can 

state statutes enacted subsequent to the transfer have any operation therein. 1716 But the local laws in force at the date of cession 

that are protective of private rights continue in force until abroVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00293 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
356 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property 

1717 Chicago, R. I. & P. Ry. v. McGlinn, 114 U.S. 542, 545 (1885); Stewart & Co. 

v. Sadrakula, 309 U.S. 94 (1940). 1718 Howard v. Commissioners, 344 U.S. 624 (1953). As Howard recognized, such 

areas of federal property do not cease to be part of the State in which they are located and the residents of the areas are for most purposes residents of the State. 

Thus, a State may not constitutionally exclude such residents from the privileges 

of suffrage if they are otherwise qualified. Evans v. Cornman, 398 U.S. 419 (1970). 1719Palmer v. Barrett, 162 U.S. 399 (1896). 1720 United States v. Unzeuta, 281 U.S. 138 (1930). 1721 Benson v. United States, 146 U.S. 325, 331 (1892). 1722Palmer v. Barrett, 162 U.S. 399 (1896). 1723S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946). 1724 327 U.S. at 570, 571. 

gated by Congress. 1717 Moreover, as long as there is no interference 

with the exclusive jurisdiction of the United States, an area subject 

thereto may be annexed by a municipality. 1718

Duration of Federal Jurisdiction 

A State may qualify its cession of territory by a condition that 

jurisdiction shall be retained by the United States only so long as 

the place is used for specified purposes. 1719 Such a provision operates prospectively and does not except from the grant that portion 

of a described tract which is then used as a railroad right of 

way. 1720 In 1892, the Court upheld the jurisdiction of the United 

States to try a person charged with murder on a military reservation, over the objection that the State had ceded jurisdiction only 

over such portions of the area as were used for military purposes 

and that the particular place on which the murder was committed 

was used solely for farming. The Court held that the character and 

purpose of the occupation having been officially established by the 

political department of the government, it was not open to the 

Court to inquire into the actual uses to which any portion of the 

area was temporarily put. 1721 A few years later, however, it ruled 

that the lease to a city, for use as a market, of a portion of an area 

which had been ceded to the United States for a particular purpose, suspended the exclusive jurisdiction of the United States. 1722

The question arose whether the United States retains jurisdiction over a place which was ceded to it unconditionally, after it has 

abandoned the use of the property for governmental purposes and 

entered into a contract for the sale thereof to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do 

so. The majority assumed that ‘‘the Government’s unrestricted 

transfer of property to nonfederal hands is a relinquishment of the 

exclusive legislative power.’’ 1723 In separate concurring opinions, 

Chief Justice Stone and Justice Frankfurter reserved judgment on 

the question of territorial jurisdiction. 1724

ART. I—LEGISLATIVE DEPARTMENT 357

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause 

1725Fort Leavenworth R.R. v. Lowe, 114 U.S. 525, 532 (1885); United States v. 

Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading Co. v. Cook, 281 U.S. 647, 652 

(1930). 1726 United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 14,867) (C.C.D.R.I. 

1819). 1727 James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937). 1728Mason Co. v. Tax Comm’n, 302 U.S. 186 (1937). See also Atkinson v. Tax 

Comm’n, 303 U.S. 20 (1938). 1729 17 U.S. (4 Wheat.) 316 (1819). 

Reservation of Jurisdiction by States 

For more than a century the Supreme Court kept alive, by repeated dicta, 1725 the doubt expressed by Justice Story ‘‘whether 

Congress are by the terms of the Constitution, at liberty to purchase lands for forts, dockyards, etc., with the consent of a State 

legislature, where such consent is so qualified that it will not justify the ‘exclusive legislation’ of Congress there. It may well be 

doubted if such consent be not utterly void.’’ 1726 But when the issue 

was squarely presented in 1937, the Court ruled that where the 

United States purchases property within a State with the consent 

of the latter, it is valid for the State to convey, and for the United 

States to accept, ‘‘concurrent jurisdiction’’ over such land, the State 

reserving to itself the right to execute process ‘‘and such other jurisdiction and authority over the same as is not inconsistent with 

the jurisdiction ceded to the United States.’’ 1727 The holding logically renders the second half of clause 17 superfluous. In a companion case, the Court ruled further that even if a general state 

statute purports to cede exclusive jurisdiction, such jurisdiction 

does not pass unless the United States accepts it. 1728

Clause 18. The Congress shall have Power *** To make all 

Laws which shall be necessary and proper for carrying into 

Execution the foregoing Powers, and all other Powers vested by 

the Constitution in the Government of the United States, or in 

any Department or Officer thereof. 

NECESSARY AND PROPER CLAUSE 

Scope of Incidental Powers 

That this clause is an enlargement, not a constriction, of the 

powers expressly granted to Congress, that it enables the lawmakers to select any means reasonably adapted to effectuate those 

powers, was established by Marshall’s classic opinion in McCulloch

v. Maryland. 1729 ‘‘Let the end be legitimate,’’ he wrote, ‘‘let it be 

within the scope of the Constitution, and all means which are apVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00295 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
358 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause 

1730 17 U.S. at 420. This decision had been clearly foreshadowed fourteen years 

earlier by Marshall’s opinion in United States v. Fisher, 6 U.S. (2 Cr.) 358, 396 

(1805). Upholding an act which gave priority to claims of the United States against 

the estate of a bankrupt, he wrote: ‘‘The government is to pay the debt of the Union, 

and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittance, by bills or otherwise, and to take those precautions which will render the transaction safe.’’ 1731See ‘‘Delegation of Legislative Power,’’ supra. 1732 Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland, 252 

U.S. 416 (1920). 1733See discussion of ‘‘Necessary and Proper Clause’’ under the commerce power, 

supra. 1734Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 

272, 281 (1856). 1735Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 94 U.S. 

315, 320 (1877). 1736See ‘‘Fiscal and Monetary Powers of Congress,’’ supra. 

propriate, which are plainly adapted to that end, which are not 

prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.’’ 1730 Moreover, the provision gives Congress 

a share in the responsibilities lodged in other departments, by virtue of its right to enact legislation necessary to carry into execution 

all powers vested in the National Government. Conversely, where 

necessary for the efficient execution of its own powers, Congress 

may delegate some measure of legislative power to other departments. 1731

Operation of Clause 

Practically every power of the National Government has been 

expanded in some degree by the coefficient clause. Under its authority Congress has adopted measures requisite to discharge the 

treaty obligations of the nation; 1732 it has organized the federal judicial system and has enacted a large body of law defining and 

punishing crimes. Effective control of the national economy has 

been made possible by the authority to regulate the internal commerce of a State to the extent necessary to protect and promote 

interstate commerce. 1733 The right of Congress to utilize all known 

and appropriate means for collecting the revenue, including the distraint of property for federal taxes, 1734 and its power to acquire 

property needed for the operation of the Government by the exercise of the power of eminent domain, 1735 have greatly extended the 

range of national power. But the widest application of the necessary and proper clause has occurred in the field of monetary and 

fiscal controls. Inasmuch as the various specific powers granted by 

Article I, § 8, do not add up to a general legislative power over such 

matters, the Court has relied heavily upon this clause in sustaining 

the comprehensive control which Congress has asserted over this 

subject. 1736

ART. I—LEGISLATIVE DEPARTMENT 359

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause 

1737 United States v. Fox, 95 U.S. 670, 672 (1978); United States v. Hall, 98 U.S. 

343, 357 (1879); United States v. Worrall, 2 U.S. (2 Dall. ) 384, 394 (1798); 

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). That this power has been 

freely exercised is attested by the pages of the United States Code devoted to Title 

18, entitled ‘‘Criminal Code and Criminal Procedure.’’ In addition numerous regulatory measures in other titles prescribe criminal penalties. 1738 Ex parte Carll, 106 U.S. 521 (1883). 1739 United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850). 1740Logan v. United States, 144 U.S. 263 (1892). 1741 United States v. Barnow, 239 U.S. 74 (1915). 1742 Ex parte Yarbrough, 110 U.S. 651 (1884); United States v. Waddell, 112 

U.S. 76 (1884); In re Quarles and Butler, 158 U.S. 532, 537 (1895); Motes v. United 

States, 178 U.S. 458 (1900); United States v. Mosley, 238 U.S. 383 (1915). See

also Rakes v. United States, 212 U.S. 55 (1909). 

1743 Ex parte Curtis, 106 U.S. 371 (1882). 1744 18 U.S.C. § 2385. 1745See National Commission on Reform of Federal Criminal Laws, Final Report 

(Washington: 1970); National Commission on Reform of Federal Criminal Laws, 

Working Papers (Washington: 1970), 2 vols. 1746McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). 

Definition of Punishment and Crimes 

Although the only crimes which Congress is expressly authorized to punish are piracies, felonies on the high seas, offenses 

against the law of nations, treason and counterfeiting of the securities and current coin of the United States, its power to create, define,and punish crimes and offenses whenever necessary to effectuate the objects of the Federal Government is universally conceded. 1737 Illustrative of the offenses which have been punished 

under this power are the alteration of registered bonds, 1738 the

bringing of counterfeit bonds into the country, 1739 conspiracy to injure prisoners in custody of a United States marshal, 1740 impersonation of a federal officer with intent to defraud, 1741 conspiracy to 

injure a citizen in the free exercise or enjoyment of any right or 

privilege secured by the Constitution or laws of the United 

States, 1742 the receipt by Government officials of contributions 

from Government employees for political purposes, 1743 advocating

the overthrow of the Government by force. 1744 Part I of Title 18 of 

the United States Code comprises more than 500 sections defining 

penal offenses against the United States. 1745

Chartering of Banks 

As an appropriate means for executing ‘‘the great powers, to 

lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies . . . ,’’ 

Congress may incorporate banks and kindred institutions. 1746

Moreover, it may confer upon them private powers, which, standing 

alone, have no relation to the functions of the Federal Government, 

if those privileges are essential to the effective operation of such 

360 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause 

1747Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 862 (1824). 

See also Pittman v. Home Owners’ Corp., 308 U.S. 21 (1939). 1748First National Bank v. Follows ex rel. Union Trust Co., 244 U.S. 416 (1917); 

Missouri ex rel. Burnes National Bank v. Duncan, 265 U.S. 17 (1924). 1749Smith v. Kansas City Title Co., 255 U.S. 180 (1921). 1750 Juilliard v. Greenman, 110 U.S. 421, 449 (1884). 1751 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869). 1752 Juilliard v. Greenman, 110 U.S. 421 (1884). See also Legal Tender Cases 

(Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871). 1753 Norman v. Baltimore & O. R.R., 294 U.S. 240, 303 (1935). 1754Pacific R.R. Removal Cases, 115 U.S. 1 (1885); California v. Pacific R.R., 127 

U.S. 1, 39 (1888). 1755Luxton v. North River Bridge Co., 153 U.S. 525 (1894). 

corporations. 1747 Where necessary to meet the competition of state 

banks, Congress may authorize national banks to perform fiduciary 

functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such 

business. 1748 The Court will not undertake to assess the relative 

importance of the public and private functions of a financial institution Congress has seen fit to create. It sustained the act setting 

up the Federal Farm Loan Banks to provide funds for mortgage 

loans on agricultural land against the contention that the right of 

the Secretary of the Treasury, which he had not exercised, to use 

these banks as depositories of public funds, was merely a pretext 

for chartering those banks for private purposes. 1749

Currency Regulations 

Reinforced by the necessary and proper clause, the powers ‘‘‘to 

lay and collect taxes, to pay the debts and provide for the common 

defence and general welfare of the United States,’ and ‘to borrow 

money on the credit of the United States and to coin money and 

regulate the value thereon . . . ,’’’ 1750 have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of state banks, 1751 the issuance of treasury notes impressed with the quality of legal tender in payment of 

private debts 1752 and the abrogation of clauses in private contracts, 

which called for payment in gold coin, 1753 were sustained as appropriate measures for carrying into effect some or all of the foregoing 

powers.

Power to Charter Corporations 

In addition to the creation of banks, Congress has been held 

to have authority to charter a railroad corporation, 1754 or a corporation to construct an interstate bridge, 1755 as instrumentalities 

for promoting commerce among the States, and to create corporaVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00298 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 361

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause 

1756 Clallam County v. United States, 263 U.S. 341 (1923). 1757Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922). 1758 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838). 1759Tennessee v. Davis, 100 U.S. 257, 263 (1880). 1760 Railway Company v. Whitton, 80 U.S. (13 Wall.) 270, 287 (1872). 1761 Embry v. Palmer, 107 U.S. 3 (1883). 1762 Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825). 1763 Express Co. v. Kountze Bros., 75 U.S. (8 Wall.) 342, 350 (1869). 1764 Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929). But see Northern Pipeline 

Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982). 1765 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929). 

tions to manufacture aircraft 1756 or merchant vessels 1757 as incidental to the war power. 

Courts and Judicial Proceedings 

Inasmuch as the Constitution ‘‘delineated only the great outlines of the judicial power . . . , leaving the details to Congress, . . . 

[t]he distribution and appropriate exercise of the judicial power 

must . . . be made by laws passed by Congress. . . .’’ 1758 As a necessary and proper provision for the exercise of the jurisdiction conferred by Article III, § 2, Congress may direct the removal from a 

state to a federal court of a criminal prosecution against a federal 

officer for acts done under color of federal law, 1759 and may authorize the removal before trial of civil cases arising under the laws of 

the United States. 1760 It may prescribe the effect to be given to judicial proceedings of the federal courts 1761 and may make all laws 

necessary for carrying into execution the judgments of federal 

courts. 1762 When a territory is admitted as a State, Congress may 

designate the court to which the records of the territorial courts 

shall be transferred and may prescribe the mode for enforcement 

and review of judgments rendered by those courts. 1763 In the exercise of other powers conferred by the Constitution, apart from Article III, Congress may create legislative courts and ‘‘clothe them 

with functions deemed essential or helpful in carrying those powers 

into execution.’’ 1764

Special Acts Concerning Claims 

The Necessary and Proper Clause enables Congress to pass 

special laws to require other departments of the Government to 

prosecute or adjudicate particular claims, whether asserted by the 

Government itself or by private persons. In 1924, 1765 Congress

adopted a Joint Resolution directing the President to cause suit to 

be instituted for the cancellation of certain oil leases alleged to 

have been obtained from the Government by fraud and to prosecute 

such other actions and proceedings, civil and criminal, as were 

warranted by the facts. This resolution also authorized the appointVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00299 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
362 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 1—Importation of Slaves 

1766Paramino Co. v. Marshall, 309 U.S. 370 (1940). 

1767Pope v. United States, 323 U.S. 1 (1944). 

1768Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934). 

1769Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson & Co., 264 U.S. 219 (1924). 

1770 60 U.S. (19 How.) 393, 411 (1857). 

ment of special counsel to have charge of such litigation. Private 

acts providing for a review of an order for compensation under the 

Longshoreman’s and Harbor Workers’ Compensation Act, 1766 or

conferring jurisdiction upon the Court of Claims, after it had denied recovery, to hear and determine certain claims of a contractor 

against the Government, have been held constitutional. 1767

Maritime Law 

Congress may implement the admiralty and maritime jurisdiction conferred upon the federal courts by revising and amending 

the maritime law that existed at the time the Constitution was 

adopted, but in so doing, it cannot go beyond the reach of that jurisdiction. 1768 This power cannot be delegated to the States; hence, 

acts of Congress that purported to make state workmen’s compensation laws applicable to maritime cases were held unconstitutional. 1769

SECTION 9. Clause 1. The Migration or Importation of such 

Persons as any of the States now existing shall think proper to 

admit, shall not be prohibited by the Congress prior to the Year 

one thousand eight hundred and eight, but a Tax or duty may 

be imposed on such Importation, not exceeding ten dollars for 

each Person. 

IN GENERAL 

The above clause, which sanctioned the importation of slaves 

by the States for twenty years after the adoption of the Constitution, when considered with the section requiring escaped slaves to 

be returned to their masters, Art. IV, § 1, cl. 3, was held by Chief 

Justice Taney in Scott v. Sandford, 1770 to show conclusively that 

such persons and their descendants were not embraced within the 

term ‘‘citizen’’ as used in the Constitution. Today this ruling is interesting only as an historical curiosity. 

ART. I—LEGISLATIVE DEPARTMENT 363

Sec. 9—Powers Denied to Congress Cl. 2—Habeas Corpus Suspension 

1771 R. WALKER, THE AMERICAN RECEPTION OF THE WRIT OF LIBERTY (1961). 1772 Infra discussion under Article III, ‘‘Habeas Corpus: Scope of Writ’’. 1773Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917). 1774 In form, of course, clause 2 is a limitation of power, not a grant of power, 

and is in addition placed in a section of limitations. It might be argued, therefore, 

that the power to suspend lies elsewhere and that this clause limits that authority. 

This argument is opposed by the little authority there is on the subject. 3 M. 

FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 213 (Luther Martin 

ed., 1937); Ex parte Merryman, 17 Fed. Cas. 144, 148 (No. 9487) (C.C.D. Md. 1861); 

but cf. 3 J. ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION 464 (Edmund Randolph, 2d ed. 1836). At 

the Convention, Gouverneur Morris proposed the language of the present clause: the 

first section of the clause, down to ‘‘unless’’ was adopted unanimously, but the second part, qualifying the prohibition on suspension was adopted over the opposition 

of three States. 2 M. FARRAND, at 438. It would hardly have been meaningful for 

those States opposing any power to suspend to vote against this language if the 

power to suspend were conferred elsewhere. 1775 Cf. Clauses 7, 8. 1776 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 341 

(rev. ed. 1937). 1777 Id. at 438. 1778 Id. 1779 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1336 (1833). 1780 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807). 

Clause 2. The Privilege of the Writ of Habeas Corpus shall 

not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. 

IN GENERAL 

This clause is the only place in the Constitution in which the 

Great Writ is mentioned, a strange fact in the context of the regard 

with which the right was held at the time the Constitution was 

written 1771 and stranger in the context of the role the right has 

come to play in the Supreme Court’s efforts to constitutionalize federal and state criminal procedure. 1772

Only the Federal Government and not the States, it has been 

held obliquely, is limited by the clause. 1773 The issue that has always excited critical attention is the authority in which the clause 

places the power to determine whether the circumstances warrant 

suspension of the privilege of the Writ. 1774 The clause itself does 

not specify, and while most of the clauses of § 9 are directed at 

Congress not all of them are. 1775 At the Convention, the first proposal of a suspending authority expressly vested ‘‘in the legislature’’ the suspending power, 1776 but the author of this proposal did 

not retain this language when the matter was taken up, 1777 the

present language then being adopted. 1778 Nevertheless, Congress’ 

power to suspend was assumed in early commentary 1779 and stated 

in dictum by the Court. 1780 President Lincoln suspended the priviVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00301 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
364 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 2—Habeas Corpus Suspension 

1781 Cf. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118–139 (rev. 

ed. 1951). 1782 Including a finding by Chief Justice Taney on circuit that the President’s 

action was invalid. Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 

1861). 1783 Act of March 3, 1863, 1, 12 Stat. 755. See Sellery, Lincoln’s Suspension of 

Habeas Corpus as Viewed by Congress, 1 U. WIS. HISTORY BULL. 213 (1907). 1784The privilege of the Writ was suspended in nine counties in South Carolina 

in order to combat the Ku Klux Klan, pursuant to Act of April 20, 1871, 4, 17 Stat. 

14. It was suspended in the Philippines in 1905, pursuant to the Act of July 1, 1902, 

5, 32 Stat. 692. Cf. Fisher v. Baker, 203 U.S. 174 (1906). Finally, it was suspended 

in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, 

67, 31 Stat. 153 (1900). Cf. Duncan v. Kahanamoku, 327 U.S. 304 (1946). For the 

problem of de facto suspension through manipulation of the jurisdiction of the federal courts, see infra discussion under Article III, The Theory of Plenary Congressional Control. 1785 71 U.S. (4 Wall.) 2, 130–131 (1866). 1786Felker v. Turpin, 518 U.S. 651, 664 (1996). 1787 INS v. St. Cyr, 533 U.S. 289 (2001). 

lege on his own motion in the early Civil War period, 1781 but this 

met with such opposition 1782 that he sought and received congressional authorization. 1783 Three other suspensions were subsequently ordered on the basis of more or less express authorizations 

from Congress. 1784

When suspension operates, what is suspended? In Ex parte 

Milligan, 1785 the Court asserted that the Writ is not suspended but 

only the privilege, so that the Writ would issue and the issuing 

court on its return would determine whether the person applying 

can proceed, thereby passing on the constitutionality of the suspension and whether the petitioner is within the terms of the suspension.

Restrictions on habeas corpus placed in the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) have 

provided occasion for further analysis of the scope of the Suspension Clause. AEDPA’s restrictions on successive petitions from 

state prisoners are ‘‘well within the compass’’ of an evolving body 

of principles restraining ‘‘abuse of the writ,’’ and hence do not 

amount to a suspension of the writ within the meaning of the 

Clause. 1786 Interpreting IIRIRA so as to avoid what it viewed as 

a serious constitutional problem, the Court in another case held 

that Congress had not evidenced clear intent to eliminate federal 

court habeas corpus jurisdiction to determine whether the Attorney 

General retained discretionary authority to waive deportation for a 

limited category of resident aliens who had entered guilty pleas before IIRIRA repealed the waiver authority. 1787 ‘‘[At] the absolute 

minimum,’’ the Court reasoned, ‘‘the Suspension Clause protects 

the writ as it existed in 1789.’’ ‘‘At its historical core, the writ of 

ART. I—LEGISLATIVE DEPARTMENT 365

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder 

1788 533 U.S. at 301. 1789 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1338 (1833). 1790 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); cf. United States 

v. Brown, 381 U.S. 437, 441–442, (1965). 1791 United States v. Brown, 381 U.S. 437, 442–446 (1965). Four dissenting Justices, however, denied that any separation of powers concept underlay the clause. 

Id. at 472–73. 1792 United States v. Lovett, 328 U.S. 303, 315 (1946). 

habeas corpus has served as a means of reviewing the legality of 

executive detention, and it is in that context that its protections 

have been strongest.’’ 1788

Clause 3. No Bill of Attainder or ex post facto Law shall 

be passed. 

Bills of Attainder 

‘‘Bills of attainder . . . are such special acts of the legislature, 

as inflict capital punishments upon persons supposed to be guilty 

of high offences, such as treason and felony, without any conviction 

in the ordinary course of judicial proceedings. If an act inflicts a 

milder degree of punishment than death, it is called a bill of pains 

and penalties. . . . In such cases, the legislature assumes judicial 

magistracy, pronouncing upon the guilt of the party without any of 

the common forms and guards of trial, and satisfying itself with 

proofs, when such proofs are within its reach, whether they are 

conformable to the rules of evidence, or not. In short, in all such 

cases, the legislature exercises the highest power of sovereignty, 

and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or 

expediency, and too often under the influence of unreasonable 

fears, or unfounded suspicions.’’ 1789 The phrase ‘‘bill of attainder,’’ 

as used in this clause and in clause 1 of § 10, applies to bills of 

pains and penalties as well as to the traditional bills of attainder. 1790

The prohibition embodied in this clause is not to be strictly and 

narrowly construed in the context of traditional forms but is to be 

interpreted in accordance with the designs of the framers so as to 

preclude trial by legislature, a violation of the separation of powers 

concept. 1791 The clause thus prohibits all legislative acts, ‘‘no matter what their form, that apply either to named individuals or to 

easily ascertainable members of a group in such a way as to inflict 

punishment on them without a judicial trial. . . .’’ 1792 That the Court 

has applied the clause dynamically is revealed by a consideration 

of the three cases in which acts of Congress have been struck down 

366 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder 

1793For a rejection of the Court’s approach and a plea to adhere to the traditional concept, see id. at 318 (Justice Frankfurter concurring). 1794 71 U.S. (4 Wall.) 333 (1867). 1795 Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867). 1796 United States v. Lovett, 328 U.S. 303 (1946). 1797 381 U.S. 437 (1965). 1798The Court of Appeals had voided the statute as an infringement of First 

Amendment expression and association rights, but the Court majority did not choose 

to utilize this ground. 334 F. 2d 488 (9th Cir. 1964). However, in United States v. 

Robel, 389 U.S. 258 (1967), a very similar statute making it unlawful for any member of a ‘‘Communist-action organization’’ to be employed in a defense facility was 

struck down on First Amendment grounds and the bill of attainder argument was 

ignored. 1799 United States v. Brown, 381 U.S. 437, 462 (1965) (Justices White, Clark, 

Harlan, and Stewart dissenting). 

as violating it. 1793 In Ex parte Garland, 1794 the Court struck down 

a statute that required attorneys to take an oath that they had 

taken no part in the Confederate rebellion against the United 

States before they could practice in federal courts. The statute, and 

a state constitutional amendment requiring a similar oath of persons before they could practice certain professions, 1795 were struck 

down as legislative acts inflicting punishment on a specific group 

the members of which had taken part in the rebellion and therefore 

could not truthfully take the oath. The clause then lay unused until 

1946 when the Court utilized it to strike down a rider to an appropriations bill forbidding the use of money appropriated therein to 

pay the salaries of three named persons whom the House of Representatives wished discharged because they were deemed to be 

‘‘subversive.’’ 1796

Then, in United States v. Brown, 1797 a sharply divided Court 

held void as a bill of attainder a statute making it a crime for a 

member of the Communist Party to serve as an officer or as an employee of a labor union. Congress could, Chief Justice Warren wrote 

for the majority, under its commerce power, protect the economy 

from harm by enacting a prohibition generally applicable to any 

person who commits certain acts or possesses certain characteristics making him likely in Congress’ view to initiate political strikes 

or other harmful deeds and leaving it to the courts to determine 

whether a particular person committed the specified acts or possessed the specified characteristics. It was impermissible, however, 

for Congress to designate a class of persons—members of the Communist Party—as being forbidden to hold union office. 1798 The dissenters viewed the statute as merely expressing in shorthand the 

characteristics of those persons who were likely to utilize union responsibilities to accomplish harmful acts; Congress could validly 

conclude that all members of the Communist Party possessed those 

characteristics. 1799 The majority’s decision in Brown cast in doubt 

ART. I—LEGISLATIVE DEPARTMENT 367

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder 

1800 American Communications Ass’n v. Douds, 339 U.S. 382 (1950). 1801Douds, 339 U.S. at 413, 414, cited in United States v. Brown, 381 U.S. 437, 

457–458 (1965). 1802 Brown, 381 U.S. at 458–61. 1803 329 U.S. 441 (1947). 1804 12 U.S.C. § 78. 1805The Presidential Recordings and Materials Preservation Act, P.L. 93–526, 

88 Stat. 1695 (1974), note following 44 U.S.C. § 2107. For an application of this statute, see Nixon v. Warner Communications, 435 U.S. 589 (1978). 1806 Nixon v. Administrator of General Services, 433 U.S. 425, 468–484 (1977). 

Justice Stevens’ concurrence is more specifically directed to the facts behind the 

statute than is the opinion of the Court, id. at 484, and Justice White, author of 

the dissent in Brown, merely noted he found the act nonpunitive. Id. at 487. Chief 

Justice Burger and Justice Rehnquist dissented. Id. at 504, 536–45. Adding to the 

certain statutes and certain statutory formulations that had been 

held not to constitute bills of attainder. For example, a predecessor 

of the statute struck down in Brown, which had conditioned a 

union’s access to the NLRB upon the filing of affidavits by all of 

the union’s officers attesting that they were not members of or affiliated with the Communist Party, had been upheld, 1800 and although Chief Justice Warren distinguished the previous case from 

Brown on the basis that the Court in the previous decision had 

found the statute to be preventive rather than punitive, 1801 he then 

proceeded to reject the contention that the punishment necessary 

for a bill of attainder had to be punitive or retributive rather than 

preventive, 1802 thus undermining the prior decision. Of much 

greater significance was the effect of the Brown decision on ‘‘conflict-of-interest’’ legislation typified by that upheld in Board of Governors v. Agnew. 1803 The statute there forbade any partner or employee of a firm primarily engaged in underwriting securities from 

being a director of a national bank. 1804 Chief Justice Warren distinguished the prior decision and the statute on three grounds from 

the statute then under consideration. First, the union statute inflicted its deprivation upon the members of a suspect political 

group in typical bill-of-attainder fashion, unlike the statute in 

Agnew. Second, in the Agnew statute, Congress did not express a 

judgment upon certain men or members of a particular group; it 

rather concluded that any man placed in the two positions would 

suffer a temptation any man might yield to. Third, Congress established in the Agnew statute an objective standard of conduct expressed in shorthand which precluded persons from holding the 

two positions. 

Apparently withdrawing from the Brown analysis in upholding 

a statute providing for governmental custody of documents and recordings accumulated during the tenure of former President 

Nixon, 1805 the Court set out a rather different formula for deciding 

bill of attainder cases. 1806 The law specifically applied only to 

368 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder 

impression of a departure from Brown is the quotation in the opinion of the Court 

at several points of the Brown dissent, id. at 470 n.31, 471 n.34, while the dissent 

quoted and relied on the opinion of the Court in Brown. Id. at 538, 542. 

1807 433 U.S. at 472. Justice Stevens carried the thought further, although in the 

process he severely limited the precedential value of the decision. Id. at 484. 

1808 433 U.S. at 473–84. 

1809South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). 

President Nixon and directed an executive agency to assume control over the materials and prepare regulations providing for ultimate public dissemination of at least some of them; the act assumed that it did not deprive the former President of property 

rights but authorized the award of just compensation if it should 

be judicially determined that there was a taking. First, the Court 

denied that the clause denies the power to Congress to burden 

some persons or groups while not so treating all other plausible individuals or groups; even the present law’s specificity in referring 

to the former President by name and applying only to him did not 

condemn the act because he ‘‘constituted a legitimate class of one’’ 

on whom Congress could ‘‘fairly and rationally’’ focus. 1807 Second,

even if the statute’s specificity did bring it within the prohibition 

of the clause, the lodging of Mr. Nixon’s materials with the GSA 

did not inflict punishment within the meaning of the clause. This 

analysis was a three-pronged one: 1) the law imposed no punishment traditionally judged to be prohibited by the clause; 2) the law, 

viewed functionally in terms of the type and severity of burdens 

imposed, could rationally be said to further nonpunitive legislative 

purposes; and 3) the law had no legislative record evincing a congressional intent to punish. 1808 That is, the Court, looking ‘‘to its 

terms, to the intent expressed by Members of Congress who voted 

its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect,’’ concluded that the statute 

served to further legitimate policies of preserving the availability 

of evidence for criminal trials and the functioning of the adversary 

legal system and in promoting the preservation of records of historical value, all in a way that did not and was not intended to punish 

the former President. 

The clause protects individual persons and groups who are vulnerable to nonjudicial determinations of guilt and does not apply 

to a State; neither does a State have standing to invoke the clause 

for its citizens against the Federal Government. 1809

ART. I—LEGISLATIVE DEPARTMENT 369

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder 

1810The prohibition on state ex post facto legislation appears in Art. I, § 10, cl. 

1. 1811 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES 1339 (1833). 1812 3 U.S. (3 Dall.) 386, 393 (1798). 1813 Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923). 1814 Burgess v. Salmon, 97 U.S. 381 (1878). 1815 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Ex parte Garland, 71 U.S. 

(4 Wall.) 333, 377 (1867); Burgess v. Salmon, 97 U.S. 381, 384 (1878). 1816 United States v. Powers, 307 U.S. 214 (1939). 1817 Neely v. Henkel, 180 U.S. 109, 123 (1901). Cf. In re Yamashita, 327 U.S. 

1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. MacArthur, 338 U.S. 

197, 199 (1948) (concurring opinion of Justice Douglas). 1818Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250 

(2001).

Ex Post Facto Laws 

Definition

Both federal and state governments are prohibited from 

enacting ex post facto laws, 1810 and the Court applies the same 

analysis whether the law in question is a federal or a state enactment. When these prohibitions were adopted as part of the original 

Constitution, many persons understood the term ex post facto laws

to ‘‘embrace all retrospective laws, or laws governing or controlling 

past transactions, whether . . . of a civil or a criminal nature.’’ 1811

But in the early case of Calder v. Bull, 1812 the Supreme Court decided that the phrase, as used in the Constitution, was a term of 

art that applied only to penal and criminal statutes. But although 

it is inapplicable to retroactive legislation of any other kind, 1813 the

constitutional prohibition may not be evaded by giving a civil form 

to a measure that is essentially criminal. 1814 Every law that makes 

criminal an act which was innocent when done, or which inflicts a 

greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution. 1815 A prosecution under a temporary statute which was 

extended before the date originally set for its expiration does not 

offend this provision even though it is instituted subsequent to the 

extension of the statute’s duration for a violation committed prior 

thereto. 1816 Since this provision has no application to crimes committed outside the jurisdiction of the United States against the 

laws of a foreign country, it is immaterial in extradition proceedings whether the foreign law is ex post facto or not. 1817

What Constitutes Punishment 

The issue of whether a law is civil or punitive in nature is essentially the same for ex post facto and for double jeopardy analysis. 1818 ‘‘A court must ascertain whether the legislature intended 

the statute to establish civil proceedings. A court will reject the legVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00307 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
370 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder 

1819Seling v. Young, 531 U.S. 250, 261 (2001) (interpreting Art. I, § 10). 1820Seling v. Young, 531 U.S. at 263 (2001). 1821 Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867). 1822Murphy v. Ramsey, 114 U.S. 15 (1885). 1823Mahler v. Eby, 264 U.S. 32 (1924); Bugajewitz v. Adams, 228 U.S. 585 

(1913); Marcello v. Bonds, 349 U.S. 302 (1955). Justices Black and Douglas, reiterating in Lehman v. United States ex rel. Carson, 353 U.S. 685, 690–691 (1957), 

their dissent from the premise that the ex post facto clause is directed solely to 

penal legislation, disapproved a holding that an immigration law, enacted in 1952, 

8 U.S.C. § 1251, which authorized deportation of an alien who, in 1945, had acquired a status of nondeportability under pre-existing law is valid. In their opinion, 

to banish, in 1957, an alien who had lived in the United States for almost 40 years, 

for an offense committed in 1936, and for which he already had served a term in 

prison, was to subject him to new punishment retrospectively imposed. 1824Flemming v. Nestor, 363 U.S. 603 (1960). 1825 Johannessen v. United States, 225 U.S. 227 (1912). 

islature’s manifest intent only where a party challenging the Act 

provides the clearest proof that the statutory scheme is so punitive 

in either purpose or effect as to negate the State’s intention.’’ 1819

A statute that has been held to be civil and not criminal in nature 

cannot be deemed punitive ‘‘as applied’’ to a single individual. 1820

A variety of federal laws have been challenged as ex post 

facto. A statute that prescribed as a qualification for practice before 

the federal courts an oath that the attorney had not participated 

in the Rebellion was found unconstitutional since it operated as a 

punishment for past acts. 1821 But a statute that denied to polygamists the right to vote in a territorial election was upheld even 

as applied to one who had not contracted a polygamous marriage 

and had not cohabited with more than one woman since the act 

was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter. 1822 A deportation law authorizing the Secretary 

of Labor to expel aliens for criminal acts committed before its passage is not ex post facto since deportation is not a punishment. 1823

For this reason, a statutory provision terminating payment of oldage benefits to an alien deported for Communist affiliation also is 

not ex post facto, for the denial of a non-contractual benefit to a deported alien is not a penalty but a regulation designed to relieve 

the Social Security System of administrative problems of supervision and enforcement likely to arise from disbursements to beneficiaries residing abroad. 1824 Likewise an act permitting the cancellation of naturalization certificates obtained by fraud prior to the 

passage of the law was held not to impose a punishment, but instead simply to deprive the alien of his ill-gotten privileges. 1825

Change in Place or Mode of Trial 

A change of the place of trial of an alleged offense after its 

commission is not an ex post facto law. If no place of trial was proVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00308 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 371

Sec. 9—Powers Denied to Congress Cl. 4—Taxes 

1826 Cook v. United States, 138 U.S. 157, 183 (1891). 1827 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798). 1828 Hopt v. Utah, 110 U.S. 574, 589 (1884). 1829 157 U.S. 429, 573 (1895). 1830 J. MADISON, THE DEBATES IN THE FEDERAL CONVENTION OF 1787 435 (G. 

Hunt & J. Scott eds., Greenwood Press ed. 1970). 1831 3 U.S. (3 Dall.) 171 (1796). 1832THE WORKS OF ALEXANDER HAMILTON 845 (J. Hamilton ed., 1851). ‘‘If the 

meaning of the word excise is to be sought in the British statutes, it will be found 

to include the duty on carriages, which is there considered as an excise, and then 

must necessarily be uniform and liable to apportionment; consequently, not a direct 

tax.’’

vided when the offense was committed, Congress may designate 

the place of trial thereafter. 1826 A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid, 1827 but a statute which simply enlarges the class of persons 

who may be competent to testify in criminal cases is not ex post 

facto as applied to a prosecution for a crime committed prior to its 

passage. 1828

Clause 4. No Capitation, or other direct, Tax shall be laid, 

unless in Proportion to the Census or Enumeration herein before directed to be taken. 

Direct Taxes 

The Hylton Case 

The crucial problem under clause 4 is to distinguish ‘‘direct’’ 

from other taxes. In its opinion in Pollock v. Farmers’ Loan & 

Trust Co., the Court declared: ‘‘It is apparent . . . that the distinction between direct and indirect taxation was well understood by 

the framers of the Constitution and those who adopted it.’’ 1829

Against this confident dictum may be set the following brief excerpt 

from Madison’s Notes on the Convention: ‘‘Mr. King asked what 

was the precise meaning of direct taxation? No one answered.’’ 1830

The first case to come before the Court on this issue was Hylton

v. United States, 1831 which was decided early in 1796. Congress has 

levied, according to the rule of uniformity, a specific tax upon all 

carriages, for the conveyance of persons, which were to be kept by, 

or for any person, for his own use, or to be let out for hire, or for 

the conveying of passengers. In a fictitious statement of facts, it 

was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. The 

principal argument for the constitutionality of the measure was 

made by Hamilton, who treated it as an ‘‘excise tax,’’ 1832 while

372 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 4—Taxes 

1833 4 ANNALS OF CONGRESS 730 (1794); 2 LETTERS AND OTHER WRITINGS OF

JAMES MADISON 14 (1865). 1834 3 U.S. (3 Dall.) 171, 177 (1796). 1835Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433 (1869). 1836 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869). 1837Scholey v. Rew, 90 U.S. (23 Wall.) 331 (1875). 1838Springer v. United States, 102 U.S. 586 (1881). 1839 102 U.S. at 602. 1840 157 U.S. 429 (1895); 158 U.S. 601 (1895). 1841 28 Stat. 509, 553 (1894). 

Madison both on the floor of Congress and in correspondence attacked it as ‘‘direct’’ and so void, inasmuch as it was levied without 

apportionment. 1833 The Court, taking the position that the direct 

tax clause constituted in practical operation an exception to the 

general taxing powers of Congress, held that no tax ought to be 

classified as ‘‘direct’’ which could not be conveniently apportioned, 

and on this basis sustained the tax on carriages as one on their 

‘‘use’’ and therefore an ‘‘excise.’’ Moreover, each of the judges advanced the opinion that the direct tax clause should be restricted 

to capitation taxes and taxes on land, or that at most, it might 

cover a general tax on the aggregate or mass of things that generally pervade all the States, especially if an assessment should intervene, while Justice Paterson, who had been a member of the 

Federal Convention, testified to his recollection that the principal 

purpose of the provision had been to allay the fear of the Southern 

States lest their Negroes and land should be subjected to a specific 

tax. 1834

From the Hylton to the Pollock Case 

The result of the Hylton case was not challenged until after the 

Civil War. A number of the taxes imposed to meet the demands of 

that war were assailed during the postwar period as direct taxes, 

but without result. The Court sustained successively, as ‘‘excises’’ 

or ‘‘duties,’’ a tax on an insurance company’s receipts for premiums 

and assessments; 1835 a tax on the circulating notes of state 

banks, 1836 an inheritance tax on real estate, 1837 and finally a general tax on incomes. 1838 In the last case, the Court took pains to 

state that it regarded the term ‘‘direct taxes’’ as having acquired 

a definite and fixed meaning, to wit, capitation taxes, and taxes on 

land. 1839 Then, almost one hundred years after the Hylton case, the 

famous case of Pollock v. Farmers’ Loan & Trust Co. 1840 arose

under the Income Tax Act of 1894. 1841 Undertaking to correct ‘‘a 

century of error,’’ the Court held, by a vote of five-to-four, that a 

tax on income from property was a direct tax within the meaning 

ART. I—LEGISLATIVE DEPARTMENT 373

Sec. 9—Powers Denied to Congress Cl. 4—Taxes 

1842Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178 

U.S. 41, 80 (1900). 1843 Nicol v. Ames, 173 U.S. 509 (1899). 1844Knowlton v. Moore, 178 U.S. 41 (1900). 1845Patton v. Brady, 184 U.S. 608 (1902). 1846 192 U.S. 363 (1904). 1847 192 U.S. at 370. 1848 192 U.S. 397 (1904). 1849 220 U.S. 107 (1911). 1850 240 U.S. 103 (1916). 1851 240 U.S. at 114. 

of the Constitution and hence void because not apportioned according to the census. 

Restriction of the Pollock Decision 

The Pollock decision encouraged taxpayers to challenge the 

right of Congress to levy by the rule of uniformity numerous taxes 

that had always been reckoned to be excises. But the Court evinced 

a strong reluctance to extend the doctrine to such exactions. Purporting to distinguish taxes levied ‘‘because of ownership’’ or ‘‘upon 

property as such’’ from those laid upon ‘‘privileges,’’ 1842 it sustained 

as ‘‘excises’’ a tax on sales on business exchanges, 1843 a succession 

tax which was construed to fall on the recipients of the property 

transmitted rather than on the estate of the decedent, 1844 and a 

tax on manufactured tobacco in the hands of a dealer, after an excise tax had been paid by the manufacturer. 1845 Again, in Thomas

v. United States, 1846 the validity of a stamp tax on sales of stock 

certificates was sustained on the basis of a definition of ‘‘duties, imposts and excises.’’ These terms, according to the Chief Justice, 

‘‘were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like.’’ 1847 On the same day, it ruled, in 

Spreckels Sugar Refining Co. v. McClain, 1848 that an exaction, denominated a special excise tax, imposed on the business of refining 

sugar and measured by the gross receipts thereof, was in truth an 

excise and hence properly levied by the rule of uniformity. The lesson of Flint v. Stone Tracy Co. 1849 was the same. In the Flint case,

what was in form an income tax was sustained as a tax on the 

privilege of doing business as a corporation, the value of the privilege being measured by the income, including income from investments. Similarly, in Stanton v. Baltic Mining Co., 1850 a tax on the 

annual production of mines was held to be ‘‘independently of the 

effect of the operation of the Sixteenth Amendment . . . not a tax 

upon property as such because of its ownership, but a true excise 

levied on the results of the business of carrying on mining operations.’’ 1851

374 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 4—Taxes 

1852 232 U.S. 261 (1914). 1853 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). 1854Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931). 1855Tyler v. United States, 281 U.S. 497 (1930). 1856Fernandez v. Wiener, 326 U.S. 340 (1945). 1857 Chase Nat’l Bank v. United States, 278 U.S. 327 (1929); United States v. 

Manufacturers Nat’l Bank, 363 U.S. 194, 198–201 (1960). 1858 Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v. 

Bullard, 303 U.S. 297 (1938). 1859 Bromley v. McCaughn, 280 U.S. 124, 140 (1929). 1860Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820). 

A convincing demonstration of the extent to which the Pollock decision had been whittled down by the time the Sixteenth 

Amendment was adopted is found in Billings v. United States. 1852

In challenging an annual tax assessed for the year 1909 on the use 

of foreign built yachts—a levy not distinguishable in substance 

from the carriage tax involved in the Hylton case as construed by 

the Supreme Court—counsel did not even suggest that the tax 

should be classed as a direct tax. Instead, he based his argument 

that the exaction constituted a taking of property without due process of law upon the premise that it was an excise, and the Supreme 

Court disposed of the case upon the same assumption. 

In 1921, the Court cast aside the distinction drawn in 

Knowlton v. Moore between the right to transmit property on the 

one hand and the privilege of receiving it on the other, and sustained an estate tax as an excise. ‘‘Upon this point,’’ wrote Justice 

Holmes for a unanimous Court, ‘‘a page of history is worth a volume of logic.’’ 1853 This proposition being established, the Court had 

no difficulty in deciding that the inclusion in the computation of 

the estate tax of property held as joint tenants, 1854 or as tenants 

by the entirety, 1855 or the entire value of community property 

owned by husband and wife, 1856 or the proceeds of insurance upon 

the life of the decedent, 1857 did not amount to direct taxation of 

such property. Similarly, it upheld a graduated tax on gifts as an 

excise, saying that it was ‘‘a tax laid only upon the exercise of a 

single one of those powers incident to ownership, the power to give 

the property owned to another.’’ 1858 Justice Sutherland, speaking 

for himself and two associates, urged that ‘‘the right to give away 

one’s property is as fundamental as the right to sell it or, indeed, 

to possess it.’’ 1859

Miscellaneous

The power of Congress to levy direct taxes is not confined to 

the States represented in that body. Such a tax may be levied in 

proportion to population in the District of Columbia. 1860 A penalty 

imposed for nonpayment of a direct tax is not a part of the tax 

ART. I—LEGISLATIVE DEPARTMENT 375

Sec. 9—Powers Denied to Congress Cl. 5—Export Duties 

1861De Treville v. Smalls, 98 U.S. 517, 527 (1879). 1862Turpin v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. California, 65 U.S. 

(24 How.) 169, 174 (1861). 1863Dooley v. United States, 183 U.S. 151, 154 (1901). 1864 Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin v. Burgess, 117 U.S. 504, 

507 (1886). 1865See United States v. IBM, 517 U.S. 843, 850–61 (1996). 1866 United States v. United States Shoe Corp., 523 U.S. 360, 363 (1998). 

itself and hence is not subject to the rule of apportionment. Accordingly, the Supreme Court sustained the penalty of fifty percent, 

which Congress exacted for default in the payment of the direct tax 

on land in the aggregate amount of twenty million dollars that was 

levied and apportioned among the States during the Civil War. 1861

Clause 5. No Tax or Duty shall be laid on Articles exported 

from any State. 

Taxes on Exports 

This prohibition applies only to the imposition of duties on 

goods by reason of exportation. 1862 The word ‘‘export’’ signifies 

goods exported to a foreign country, not to an unincorporated territory of the United States. 1863 A general tax laid on all property 

alike, including that intended for export, is not within the prohibition, if it is not levied on goods in course of exportation nor because 

of their intended exportation. 1864 Continuing its refusal to modify 

its export clause jurisprudence, 1865 the Court held unconstitutional 

the Harbor Maintenance Tax (HMT) under the export clause insofar as the tax was applied to goods loaded at United States ports 

for export. The HMT required shippers to pay a uniform charge on 

commercial cargo shipped through the Nation’s ports. The clause, 

said the Court, ‘‘categorically bars Congress from imposing any tax 

on exports.’’ 1866 However, the clause does not interdict a ‘‘user fee,’’ 

that is, a charge that lacks the attributes of a generally applicable 

tax or duty and is designed to compensate for government supplied 

services, facilities, or benefits, and it was that defense to which the 

Government repaired once it failed to obtain a modification of the 

rules under the clause. But the HMT bore the indicia of a tax. It 

was titled as a tax, described as a tax in the law, and codified in 

the Internal Revenue Code. Aside from labels, however, courts 

must look to how things operate, and the HMT did not qualify as 

a user fee. It did not represent compensation for services rendered. 

The value of export cargo did not correspond reliably with the federal harbor services used or usable by the exporter. Instead, the extent and manner of port use depended on such factors as size and 

376 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 5—Export Duties 

1867 523 U.S. at 367–69. 1868Spalding & Bros. v. Edwards, 262 U.S. 66 (1923). 1869Thompson v. United States, 142 U.S. 471 (1892). 1870Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper Co. v. Bowers, 266 

U.S. 373 (1924). 1871 517 U.S. 843 (1996). 1872 Article I, § 10, cl. 2, applying to the States. 1873Fairbank v. United States, 181 U.S. 283 (1901). 1874 United States v. Hvoslef, 237 U.S. 1 (1915). 1875Thames & Mersey Inc. v. United States, 237 U.S. 19 (1915). In United 

States v. IBM Corp., 517 U.S. 843 (1996), the Court adhered to Thames & 

Mersey, and held unconstitutional a federal excise tax upon insurance policies issued 

by foreign countries as applied to coverage for exported products. The Court admitted that one could question the earlier case’s equating of a tax on the insurance of 

exported goods with a tax on the goods themselves, but it observed that the Government had chosen not to present that argument. Principles of stare decisis thus cautioned observance of the earlier case. Id. at 854–55. The dissenters argued that the 

issue had been presented and should be decided by overruling the earlier case. Id. 

at 863 (Justices Kennedy and Ginsburg dissenting). 

tonnage of a vessel and the length of time it spent in port. 1867 The

HMT was thus a tax, and therefore invalid. Where the sale to a 

commission merchant for a foreign consignee was consummated by 

delivery of the goods to an exporting carrier, the sale was held to 

be a step in the exportation and hence exempt from a general tax 

on sales of such commodity. 1868 The giving of a bond for exportation of distilled liquor was not the commencement of exportation 

so as to exempt from an excise tax spirits that were not exported 

pursuant to such bond. 1869 A tax on the income of a corporation derived from its export trade was not a tax on ‘‘articles exported’’ 

within the meaning of the Constitution. 1870

In United States v. IBM Corp., 1871 the Court declined the Government’s argument that it should refine its export-tax-clause jurisprudence. Rather than read the clause as a bar on any tax that 

applies to a good in the export stream, the Government contended 

that the Court should bring this clause in line with the import-export clause 1872 and with dormant-commerce-clause doctrine. In 

that view, the Court should distinguish between discriminatory 

and nondiscriminatory taxes on exports. But the Court held that 

sufficient differences existed between the export clause and the 

other two clauses, so that its bar should continue to apply to any 

and all taxes on goods in the course of exportation. 

Stamp Taxes 

A stamp tax imposed on foreign bills of lading, 1873 charter parties, 1874 or marine insurance policies, 1875 was in effect a tax or 

duty upon exports, and so void; but an act requiring the stamping 

ART. I—LEGISLATIVE DEPARTMENT 377

Sec. 9—Powers Denied to Congress Cl. 6—Preference to Ports 

1876Pace v. Burgess, 92 U.S. 372 (1876); Turpin v. Burgess, 117 U.S. 504, 505 

(1886). 1877Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 131 (1931); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 433 (1856); South 

Carolina v. Georgia, 93 U.S. 4 (1876). In Williams v. United States, 255 U.S. 336 

(1921) the argument that an act of Congress which prohibited interstate transportation of liquor into States whose laws prohibited manufacture or sale of liquor for 

beverage purposes was repugnant to this clause was rejected. 1878Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 132 (1931). 1879Passenger Cases (Smith v. Turner), 48 U.S. (7 How.) 282, 414 (1849) (opinion of Justice Wayne); cf. Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 314 

(1851). 1880Morgan v. Louisiana, 118 U.S. 455, 467 (1886). See also Munn v. Illinois, 

94 U.S. 113, 135 (1877); Johnson v. Chicago & Pacific Elevator Co., 119 U.S. 388, 

400 (1886). 1881 1 Stat. 53, 54, § 4 (1789). 1882Thompson v. Darden, 198 U.S. 310 (1905). 

of all packages of tobacco intended for export in order to prevent 

fraud was held not to be forbidden as a tax on exports. 1876

Clause 6. No Preference shall be given by any Regulation 

of Commerce or Revenue to the Ports of one State over those 

of another: nor shall Vessels bound to, or from, one State, be 

obliged to enter, clear, or pay duties in another. 

The ‘‘No Preference’’ Clause 

The limitations imposed by this section were designed to prevent preferences as between ports because of their location in different States. They do not forbid such discriminations as between 

individual ports. Acting under the commerce clause, Congress may 

do many things that benefit particular ports and which incidentally 

result to the disadvantage of other ports in the same or neighboring States. It may establish ports of entry, erect and operate 

lighthouses, improve rivers and harbors, and provide structures for 

the convenient and economical handling of traffic. 1877 A rate order 

of the Interstate Commerce Commission which allowed an additional charge to be made for ferrying traffic across the Mississippi 

to cities on the east bank of the river was sustained over the objection that it gave an unconstitutional preference to ports in 

Texas. 1878 Although there were a few early intimations that this 

clause was applicable to the States as well as to Congress, 1879 the

Supreme Court declared emphatically in 1886 that state legislation 

was unaffected by it. 1880 After more than a century, the Court confirmed, over the objection that this clause was offended, the power 

which the First Congress had exercised 1881 in sanctioning the continued supervision and regulation of pilots by the States. 1882

378 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 9—Powers Denied to Congress Cl. 7—Public Money Appropriations 

1883 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v. 

United States, 95 U.S. 149, 154 (1877). 1884 United States v. Price, 116 U.S. 43 (1885); United States v. Realty Company, 163 U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899). 1885 Hart v. United States, 118 U.S. 62, 67 (1886). 1886 32 Stat. 388 (1902). 1887 Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937). 1888 Reeside v. Walker, 52 U.S. (11 How.) 272 (1851). 

Clause 7. No Money shall be drawn from the Treasury but 

in Consequence of Appropriations made by Law; and a regular 

Statement and Account of the Receipts and Expenditures of all 

public Money shall be published from time to time. 

Appropriations

This clause is a limitation upon the power of the Executive Department and does not restrict Congress in appropriating moneys 

in the Treasury. 1883 That body may recognize and pay a claim of 

an equitable, moral, or honorary nature. When it directs a specific 

sum to be paid to a certain person, neither the Secretary of the 

Treasury nor any court has discretion to determine whether the 

person is entitled to receive it. 1884 In making appropriations to pay 

claims arising out of the Civil War, Congress could, the Court held, 

lawfully provide that certain persons, i.e., those who had aided the 

Rebellion, should not be paid out of the funds made available by 

the general appropriation, but that such persons should seek relief 

from Congress. 1885 The Court has also recognized that Congress 

has a wide discretion with regard to the extent to which it shall 

prescribe details of expenditures for which it appropriates funds 

and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed 

by designated government agencies. Citing as an example the act 

of June 17, 1902, 1886 where all moneys received from the sale and 

disposal of public lands in a large number of States and territories 

were set aside as a special fund to be expended under the direction 

of the Secretary of the Interior upon such projects as he determined to be practicable and advisable for the reclamation of arid 

and semi-arid lands within those States and territories, the Court 

declared: ‘‘The constitutionality of this delegation of authority has 

never been seriously questioned.’’ 1887

Payment of Claims 

No officer of the Federal Government is authorized to pay a 

debt due from the United States, whether reduced to judgment or 

not, without an appropriation for that purpose. 1888 Nor may a govVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00316 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 379

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1889OPM v. Richmond, 496 U.S. 414 (1990). 1890 United States v. Klein, 80 U.S. (13 Wall.) 128 (1872). 1891Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States, 

155 U.S. 417, 427 (1894). 1892 Hart v. United States, 118 U.S. 62, 67 (1886). 1893 13 Ops. Atty. Gen. 538 (1871). 

ernment employee, by erroneous advice to a claimant, bind the 

United States through equitable estoppel principles to pay a claim 

for which an appropriation has not been made. 1889

After the Civil War, a number of controversies arose out of attempts by Congress to restrict the payment of the claims of persons 

who had aided the Rebellion but had thereafter received a pardon 

from the President. The Supreme Court held that Congress could 

not prescribe the evidentiary effect of a pardon in a proceeding in 

the Court of Claims for property confiscated during the Civil 

War, 1890 but that where the confiscated property had been sold and 

the proceeds paid into the Treasury, a pardon did not of its own 

force authorize the restoration of such proceeds. 1891 It was within 

the competence of Congress to declare that the amount due to persons thus pardoned should not be paid out of the Treasury and that 

no general appropriation should extend to their claims. 1892

Clause 8. No Title of Nobility shall be granted by the 

United States: And no Person holding any Office of Profit or 

Trust under them, shall, without the Consent of the Congress 

accept of any present, Emolument, Office, or Title, of any kind 

whatever, from any King, Prince, or foreign State. 

IN GENERAL 

In 1871 the Attorney General of the United States ruled that: 

‘‘A minister of the United States abroad is not prohibited by the 

Constitution from rendering a friendly service to a foreign power, 

even that of negotiating a treaty for it, provided he does not become an officer of that power . . . but the acceptance of a formal 

commission, as minister plenipotentiary, creates an official relation 

between the individual thus commissioned and the government 

which in this way accredits him as its representative,’’ which is 

prohibited by this clause of the Constitution. 1893

SECTION 10. Clause 1. No State shall enter into any Treaty, 

Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but 

380 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1894Williams v. Bruffy, 96 U.S. 176, 183 (1878). 1895 39 U.S. (14 Pet.) 540 (1840). 1896 United States v. California, 332 U.S. 19 (1947). 1897 313 U.S. 69 (1941). 1898 313 U.S. at 78–79. 

gold and silver Coin a Tender in Payment of Debts; pass any 

Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 

Treaties, Alliances, or Confederations 

At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as 

having any legal existence. 1894 Today, its practical significance lies 

in the limitations which it implies upon the power of the States to 

deal with matters having a bearing upon international relations. In 

the early case of Holmes v. Jennison, 1895 Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. More recently, 

the kindred idea that the responsibility for the conduct of foreign 

relations rests exclusively with the Federal Government prompted 

the Court to hold that, since the oil under the three mile marginal 

belt along the California coast might well become the subject of 

international dispute and since the ocean, including this three mile 

belt, is of vital consequence to the nation in its desire to engage 

in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water 

area. 1896 In Skiriotes v. Florida, 1897 the Court, on the other hand, 

ruled that this clause did not disable Florida from regulating the 

manner in which its own citizens may engage in sponge fishing 

outside its territorial waters. Speaking for a unanimous Court, 

Chief Justice Hughes declared; ‘‘When its action does not conflict 

with federal legislation, the sovereign authority of the State over 

the conduct of its citizens upon the high seas is analogous to the 

sovereign authority of the United States over its citizens in like circumstances.’’ 1898

Bills of Credit 

Within the sense of the Constitution, bills of credit signify a 

paper medium of exchange, intended to circulate between individuals, and between the Government and individuals, for the ordiVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00318 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 381

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1899 Craig v. Missouri, 29 U.S. (4 Pet.) 410, 425 (1830); Byrne v. Missouri, 33 

U.S. (8 Pet.) 40 (1834). 1900 Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 269 (1885); 

Chaffin v. Taylor, 116 U.S. 567 (1886). 1901 Houston & Texas Cent. R.R. v. Texas, 177 U.S. 66 (1900). 1902 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837). 1903Darrington v. Bank of Alabama, 54 U.S. (13 How.) 12, 15 (1851); Curran v. 

Arkansas, 56 U.S. (15 How.) 304, 317 (1854). 1904 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837). 1905Woodruff v. Trapnall, 51 U.S. (10 How.) 190, 205 (1851). 1906 Juilliard v. Greenman, 110 U.S. 421, 446 (1884). 1907Gwin v. Breedlove, 43 U.S. (2 How.) 29, 38 (1844). See also Griffin v. 

Thompson, 43 U.S. (2 How.) 244 (1844). 1908Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 659 

(1923).

nary purposes of society. It is immaterial whether the quality of 

legal tender is imparted to such paper. Interest bearing certificates, 

in denominations not exceeding ten dollars, which were issued by 

loan offices established by the State of Missouri and made receivable in payment of taxes or other moneys due to the State, and in 

payment of the fees and salaries of state officers, were held to be 

bills of credit whose issuance was banned by this section. 1899 The

States are not forbidden, however, to issue coupons receivable for 

taxes, 1900 nor to execute instruments binding themselves to pay 

money at a future day for services rendered or money borrowed. 1901

Bills issued by state banks are not bills of credit; 1902 it is immaterial that the State is the sole stockholder of the bank, 1903 that the 

officers of the bank were elected by the state legislature, 1904 or that 

the capital of the bank was raised by the sale of state bonds. 1905

Legal Tender 

Relying on this clause, which applies only to the States and not 

to the Federal Government, 1906 the Supreme Court has held that 

where the marshal of a state court received state bank notes in 

payment and discharge of an execution, the creditor was entitled 

to demand payment in gold or silver. 1907 Since, however, there is 

nothing in the Constitution prohibiting a bank depositor from consenting when he draws a check that payment may be made by 

draft, a state law providing that checks drawn on local banks 

should, at the option of the bank, be payable in exchange drafts 

was held valid. 1908

Bills of Attainder 

Statutes passed after the Civil War with the intent and result 

of excluding persons who had aided the Confederacy from following 

certain callings, by the device of requiring them to take an oath 

382 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1909 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); Klinger v. Missouri, 80 U.S. (13 Wall.) 257 (1872); Pierce v. Carskadon, 83 U.S. (16 Wall.) 234, 

239 (1873). 1910Garner v. Board of Pub. Works, 341 U.S. 716, 722–723 (1951). Cf.

Konigsberg v. State Bar of California, 366 U.S. 36, 47 n.9 (1961). 1911De Veau v. Braisted, 363 U.S. 144, 160 (1960). Presumably, United States 

v. Brown, 381 U.S. 437 (1965), does not qualify this decision. 1912 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798); Watson v. Mercer, 33 U.S. 

(8 Pet.) 88, 110 (1834); Baltimore and Susquehanna R.R. v. Nesbit, 51 U.S. (10 

How.) 395, 401 (1850); Carpenter v. Pennsylvania, 58 U.S. (17 How.) 456, 463 

(1855); Loche v. New Orleans, 71 U.S. (4 Wall.) 172 (1867); Orr v. Gilman, 183 U.S. 

278, 285 (1902); Kentucky Union Co. v. Kentucky, 219 U.S. 140 (1911). In Eastern 

Enterprises v. Apfel, 524 U.S. 498, 538 (1998) (concurring), Justice Thomas indicated a willingness to reconsider Calder to determine whether the clause should 

apply to civil legislation. 1913 Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269 

U.S. 167, 169–170 (1925)). Alternatively, the Court described the reach of the clause 

as extending to laws that ‘‘alter the definition of crimes or increase the punishment 

for criminal acts.’’ Id. at 43. Justice Chase’s oft-cited formulation has a fourth category: ‘‘every law that aggravates a crime, or makes it greater than it was, when 

committed.’’ Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798), cited in, e.g., Carmell 

v. Texas, 529 U.S. 513, 522 (2000). 

that they had never given such aid, were held invalid as being bills 

of attainder, as well as ex post facto laws. 1909

Other attempts to raise bill-of-attainder claims have been unsuccessful. A Court majority denied that a municipal ordinance 

that required all employees to execute oaths that they had never 

been affiliated with Communist or similar organizations, violated 

the clause, on the grounds that the ordinance merely provided 

standards of qualifications and eligibility for employment. 1910 A

law that prohibited any person convicted of a felony and not subsequently pardoned from holding office in a waterfront union was not 

a bill of attainder because the ‘‘distinguishing feature of a bill of 

attainder is the substitution of a legislative for a judicial determination of guilt’’ and the prohibition ‘‘embodies no further implications of appellant’s guilt than are contained in his 1920 judicial 

conviction.’’ 1911

Ex Post Facto Laws 

Scope of the Provision.—This clause, like the cognate restriction imposed on the Federal Government by § 9, relates only to 

penal and criminal legislation and not to civil laws that affect private rights adversely. 1912 There are three categories of ex post 

facto laws: those ‘‘which punish[ ] as a crime an act previously committed, which was innocent when done; which make[ ] more burdensome the punishment for a crime, after its commission; or 

which deprive[ ] one charged with crime of any defense available 

according to law at the time when the act was committed.’’ 1913 The

ART. I—LEGISLATIVE DEPARTMENT 383

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1914Frank v. Mangum, 237 U.S. 309, 344 (1915); Ross v. Oregon, 227 U.S. 150, 

161 (1913). However, an unforeseeable judicial enlargement of a criminal statute so 

as to encompass conduct not covered on the face of the statute operates like an ex

post facto law if it is applied retroactively and violates due process in that event. 

Bouie v. City of Columbia, 378 U.S. 347 (1964). See Marks v. United States, 430 

U.S. 188 (1977) (applying Bouie in context of § 9, cl. 3). But see Splawn v. California, 

431 U.S. 595 (1977) (rejecting application of Bouie). The Court itself has not always 

adhered to this standard. See Ginzburg v. United States, 383 U.S. 463 (1966). 1915 Jaehne v. New York, 128 U.S. 189, 194 (1888). 1916 Rooney v. North Dakota, 196 U.S. 319, 325 (1905). 1917 Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915). 1918Samuels v. McCurdy, 267 U.S. 188 (1925). 1919 Hawker v. New York, 170 U.S. 189, 190 (1898). See also Reetz v. Michigan, 

188 U.S. 505, 509 (1903); Lehmann v. State Board of Public Accountancy, 263 U.S. 

394 (1923). 1920De Veau v. Braisted, 363 U.S. 144, 160 (1960). 1921 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 316 (1867). 1922Pierce v. Carskadon, 83 U.S. (16 Wall.) 234 (1873). 

bar is directed only against legislative action and does not touch erroneous or inconsistent decisions by the courts. 1914

The fact that a law is ex post facto and invalid as to crimes 

committed prior to its enactment does not affect its validity as to 

subsequent offenses. 1915 A statute that mitigates the rigor of the 

law in force at the time the crime was committed, 1916 or merely penalizes the continuance of conduct lawfully begun before its passage, is not ex post facto. Thus, measures penalizing the failure of 

a railroad to cut drains through existing embankments 1917 or making illegal the continued possession of intoxicating liquors which 

were lawfully acquired 1918 have been held valid. 

Denial of Future Privileges to Past Offenders.—The right 

to practice a profession may be denied to one who was convicted 

of an offense before the statute was enacted if the offense reasonably may be regarded as a continuing disqualification for the profession. Without offending the Constitution, statutes barring a person from practicing medicine after conviction of a felony 1919 or excluding convicted felons from waterfront union offices unless pardoned or in receipt of a parole board’s good conduct certificate, 1920

may be enforced against a person convicted before the measures 

were passed. But the test oath prescribed after the Civil War, 

whereby office holders, teachers, or preachers were required to 

swear that they had not participated in the Rebellion, was held invalid on the ground that it had no reasonable relation to fitness to 

perform official or professional duties, but rather was a punishment for past offenses. 1921 A similar oath required of suitors in the 

courts also was held void. 1922

Changes in Punishment.—Statutes that changed an indeterminate sentence law to require a judge to impose the maximum 

sentence, whereas formerly he could impose a sentence between the 

384 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1923Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of 

Lindsey in Dobbert v. Florida, 432 U.S. 282, 298–301 (1977). 1924 Holden v. Minnesota, 137 U.S. 483, 491 (1890). 1925Medley, Petitioner, 134 U.S. 160, 171 (1890). 1926Miller v. Florida, 482 U.S. 423 (1987). But see California Dep’t of Corrections v. Morales, 514 U.S. 499 (1995) (a law amending parole procedures to decrease 

frequency of parole-suitability hearings is not ex post facto as applied to prisoners 

who committed offenses before enactment). The opinion modifies previous opinions 

that had held impermissible some laws because they operated to the disadvantage 

of covered offenders. Henceforth, ‘‘the focus of ex post facto inquiry is . . . whether 

any such change alters the definition of criminal conduct or increases the penalty 

by which a crime is punishable.’’ Id. at 506 n.3. Accord, Garner v. Jones, 529 U.S. 

244 (2000) (evidence insufficient to determine whether change in frequency of parole 

hearings significantly increases the likelihood of prolonging incarceration). But

see Lynce v. Mathis, 519 U.S. 433 (1997) (cancellation of release credits already 

earned and used, resulting in reincarceration, violates the Clause). 1927Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S. 

311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912). 1928Malloy v. South Carolina, 237 U.S. 180 (1915). 1929 Rooney v. North Dakota, 196 U.S. 319, 324 (1905). 1930 432 U.S. 282, 297–98 (1977). Justices Stevens, Brennan, and Marshall dissented. Id. at 304. 

minimum and maximum, 1923 required criminals sentenced to death 

to be kept thereafter in solitary confinement, 1924 or allowed a warden to fix, within limits of one week, and keep secret the time of 

execution, 1925 were held to be ex post facto as applied to offenses 

committed prior to their enactment. Because it made more onerous 

the punishment for crimes committed before its enactment, a law, 

a law that altered sentencing guidelines to make it more likely the 

sentencing authority would impose on a defendant a more severe 

sentence than was previously likely and making it impossible for 

the defendant to challenge the sentence was ex post facto as to one 

who had committed the offense prior to the change. 1926 But laws 

providing heavier penalties for new crimes thereafter committed by 

habitual criminals, 1927 changing the punishment from hanging to 

electrocution, fixing the place therefor in the penitentiary, and permitting the presence of a greater number of invited witnesses, 1928

or providing for close confinement of six to nine months in the penitentiary, in lieu of three to six months in jail prior to execution, 

and substituting the warden for the sheriff as hangman, have been 

sustained. 1929

In Dobbert v. Florida, 1930 the Court may have formulated a 

new test for determining when a criminal statute vis-a-vis punishment is ex post facto. Defendant murdered two of his children; at 

the time of the commission of the offenses, Florida law provided the 

death penalty upon conviction for certain takings of life. Subsequent to the commission of the capital offenses, the Supreme Court 

held capital sentencing laws similar to Florida’s unconstitutional, 

although convictions obtained under the statutes were not to be 

ART. I—LEGISLATIVE DEPARTMENT 385

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1931Furman v. Georgia, 408 U.S. 238 (1972). The new law was sustained in 

Proffitt v. Florida, 428 U.S. 242 (1976). 1932 432 U.S. at 297. 1933Gibson v. Mississippi, 162 U.S. 565, 590 (1896). 1934Gut v. Minnesota, 76 U.S. (9 Wall.) 35, 37 (1870). 1935Duncan v. Missouri, 152 U.S. 377 (1894). 1936Mallett v. North Carolina, 181 U.S. 589, 593 (1901). 1937Gibson v. Mississippi, 162 U.S. 565, 588 (1896). 1938 Beazell v. Ohio, 269 U.S. 167 (1925). 1939Thompson v. Missouri, 171 U.S. 380, 381 (1898). 1940 E.g., Duncan v. Missouri, 152 U.S. 377, 382–383 (1894); Malloy v. South 

Carolina, 237 U.S. 180, 183 (1915); Beazell v. Ohio, 269 U.S. 167, 171 (1925). The 

two cases decided on the basis of the distinction were Thompson v. Utah, 170 U.S. 

343 (1898) (application to felony trial for offense committed before enactment of 

change from 12–person jury to an eight-person jury void under clause), and Kring 

v. Missouri, 107 U.S. 221 (1883) (as applied to a case arising before change, a law 

abolishing a rule under which a guilty plea functioned as a acquittal of a more serioverturned, 1931 and the Florida Supreme Court voided its death 

penalty statutes on the authority of the High Court decision. The 

Florida legislature then enacted a new capital punishment law, 

which was sustained. Dobbert was convicted and sentenced to 

death under the new law, which was enacted after the commission 

of his offenses. The Court rejected the ex post facto challenge to the 

sentence on the basis that whether the old statute was constitutional or not, ‘‘it clearly indicated Florida’s view of the severity of 

murder and of the degree of punishment which the legislature 

wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books 

provided fair warning as to the degree of culpability which the 

State ascribed to the act of murder.’’ 1932 Whether the ‘‘fair warning’’ standard is to have any prominent place in ex post facto jurisprudence may be an interesting question, but it is problematical 

whether the fact situation will occur often enough to make the 

principle applicable in very many cases. 

Changes in Procedure.—An accused person does not have a 

right to be tried in all respects in accordance with the law in force 

when the crime charged was committed. 1933 Laws shifting the 

place of trial from one county to another, 1934 increasing the number of appellate judges and dividing the appellate court into divisions, 1935 granting a right of appeal to the State, 1936 changing the 

method of selecting and summoning jurors, 1937 making separate 

trials for persons jointly indicted a matter of discretion for the trial 

court rather than a matter of right, 1938 and allowing a comparison 

of handwriting experts 1939 have been sustained over the objection 

that they were ex post facto. It was said or suggested in a number 

of these cases, and two decisions were rendered precisely on the 

basis, that the mode of procedure might be changed only so long 

as the substantial rights of the accused were not curtailed. 1940 The

386 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

ous offense, so that defendant could be tried on the more serious charge, a violation 

of the clause). 1941 Collins v. Youngblood, 497 U.S. 37, 44–52 (1990). In so doing, the Court 

overruled Kring and Thompson v. Utah. 1942 497 U.S. at 44, 52. Youngblood upheld a Texas statute, as applied to a person committing an offense and tried before passage of the law, that authorized 

criminal courts to reform an improper verdict assessing a punishment not authorized by law, which had the effect of denying defendant a new trial to which he 

would have been previously entitled. 1943 Carmell v. Texas, 529 U.S. 513 (2000). 1944Dodge v. Woolsey, 59 U.S. (18 How.) 331 (1856); Ohio & M. R.R. v. McClure, 

77 U.S. (10 Wall.) 511 (1871); New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 

650 (1885); Bier v. McGehee, 148 U.S. 137, 140 (1893). 1945 New Orleans Water-Works Co. v. Rivers, 115 U.S. 674 (1885); City of Walla 

Walla v. Walla Walla Water Co., 172 U.S. 1 (1898); City of Vicksburg v. Waterworks 

Co., 202 U.S. 453 (1906); Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 

548 (1914); Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916). 1946 Id. See also Grand Trunk Ry. v. Indiana R.R. Comm’n, 221 U.S. 400 (1911); 

Appleby v. Delaney, 271 U.S. 403 (1926). 1947 Central Land Co. v. Laidley, 159 U.S. 103 (1895). See also New Orleans 

Water-Works Co. v. Louisiana Sugar Co., 125 U.S. 18 (1888); Hanford v. Davies, 163 

Court has now disavowed this position. 1941 All that the language 

of most of these cases meant was that a legislature might not 

evade the ex post facto clause by labeling changes as alteration of 

‘‘procedure.’’ If a change labeled ‘‘procedural’’ effects a substantive 

change in the definition of a crime or increases punishment or denies a defense, the clause is invoked; however, if a law changes the 

procedures by which a criminal case is adjudicated, the clause is 

not implicated, regardless of the increase in the burden on a defendant. 1942

Changes in evidentiary rules that allow conviction on less evidence than was required at the time the crime was committed can 

also run afoul of the ex post facto clause. This principle was applied 

in the Court’s invalidation of retroactive application of a Texas law 

that eliminated the requirement that the testimony of a sexual assault victim age 14 or older must be corroborated by two other witnesses, and allowed conviction on the victim’s testimony alone. 1943

Obligation of Contracts 

‘‘Law’’ Defined.—The term comprises statutes, constitutional 

provisions, 1944 municipal ordinances, 1945 and administrative regulations having the force and operation of statutes. 1946 But are judicial decisions within the clause? The abstract principle of the separation of powers, at least until recently, forbade the idea that the 

courts ‘‘make’’ law and the word ‘‘pass’’ in the above clause seemed 

to confine it to the formal and acknowledged methods of exercise 

of the law-making function. Accordingly, the Court has frequently 

said that the clause does not cover judicial decisions, however erroneous, or whatever their effect on existing contract rights. 1947 NevVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00324 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 387

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

U.S. 273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); Detroit United Ry. v. Michigan, 242 U.S. 238 (1916); Long Sault Development Co. v. Call, 242 U.S. 272 (1916); 

McCoy v. Union Elevated R. Co., 247 U.S. 354 (1918); Columbia G. & E. Ry. v. 

South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flannagan, 263 U.S. 444 

(1924). 1948 Jefferson Branch Bank v. Skelly, 66 U.S. (1 Bl.) 436, 443 (1862); Bridge Proprietors v. Hoboken Co., 68 U.S. (1 Wall.) 116, 145 (1863); Wright v. Nagle, 101 U.S. 

791, 793 (1880); McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal, 

154 U.S. 34, 35 (1894); Stearns v. Minnesota, 179 U.S. 223, 232–233 (1900); 

Coombes v. Getz, 285 U.S. 434, 441 (1932); Atlantic Coast Line R.R. v. Phillips, 332 

U.S. 168, 170 (1947). 1949McCullough v. Virginia, 172 U.S. 102 (1898); Houston & Texas Central Rd. 

Co. v. Texas, 177 U.S. 66, 76, 77 (1900); Hubert v. New Orleans, 215 U.S. 170, 175 

(1909); Carondelet Canal Co. v. Louisiana, 233 U.S. 362, 376 (1914); Louisiana Ry. 

& Nav. Co. v. New Orleans, 235 U.S. 164, 171 (1914). 1950State Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369 (1854), and Ohio Life 

Ins. and Trust Co. v. Debolt, 57 U.S. (16 How.) 416 (1854) are the leading cases. 

See also Jefferson Branch Bank v. Skelly, 66 U.S. (1 Bl.) 436 (1862); Louisiana v. 

Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (1890); Mobile & 

Ohio R.R. v. Tennessee, 153 U.S. 486 (1894); Bacon v. Texas, 163 U.S. 207 (1896); 

McCullough v. Virginia, 172 U.S. 102 (1898). 

ertheless, there are important exceptions to this rule that are set 

forth below. 

Status of Judicial Decisions.—While the highest state court 

usually has final authority in determining the construction as well 

as the validity of contracts entered into under the laws of the 

State, and the national courts will be bound by their decision of 

such matters, nevertheless, for reasons that are fairly obvious, this 

rule does not hold when the contract is one whose obligation is alleged to have been impaired by state law. 1948 Otherwise, the challenged state authority could be vindicated through the simple device of a modification or outright nullification by the state court of 

the contract rights in issue. Similarly, the highest state court usually has final authority in construing state statutes and determining their validity in relation to the state constitution. But this 

rule too has had to bend to some extent to the Supreme Court’s interpretation of the obligation of contracts clause. 1949

Suppose the following situation: (1) a municipality, acting 

under authority conferred by a state statute, has issued bonds in 

aid of a railway company; (2) the validity of this statute has been 

sustained by the highest state court; (3) later the state legislature 

passes an act to repeal certain taxes to meet the bonds; (4) it is 

sustained in doing so by a decision of the highest state court holding that the statute authorizing the bonds was unconstitutional ab

initio. In such a case the Supreme Court would take an appeal 

from the state court and would reverse the latter’s decision of unconstitutionality because of its effect in rendering operative the act 

to repeal the tax. 1950

388 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1951Gelpcke v. Dubuque, 68 U.S. (1 Wall.) 175, 206 (1865); Havemayer v. Iowa 

County, 70 U.S. (3 Wall.) 294 (1866); Thomson v. Lee County, 70 U.S. (3 Wall.) 327 

(1866); The City v. Lamson, 76 U.S. (9 Wall.) 477 (1870); Olcott v. The Supervisors, 

83 U.S. (16 Wall.) 678 (1873); Taylor v. Ypsilanti, 105 U.S. 60 (1882); Anderson v. 

Santa Anna, 116 U.S. 356 (1886); Wilkes County v. Coler, 180 U.S. 506 (1901). 1952Great Southern Hotel Co. v. Jones, 193 U.S. 532, 548 (1904). 1953Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & Harlem 

R.R., 197 U.S. 544, 570 (1905). 

Suppose further, however, that the state court has reversed 

itself on the question of the constitutionality of the bonds in a suit 

by a creditor for payment without there having been an act of repeal. In this situation, the Supreme Court would still afford relief 

if the case is one between citizens of different States, which reaches 

it via a lower federal court. 1951 This is because in cases of this nature the Court formerly felt free to determine questions of fundamental justice for itself. Indeed, in such a case, the Court has apparently in the past regarded itself as free to pass upon the constitutionality of the state law authorizing the bonds even though 

there has been no prior decision by the highest state court sustaining them, the idea being that contracts entered into simply on 

the faith of the presumed constitutionality of a state statute are entitled to this protection. 1952

In other words, in cases of which it has jurisdiction because of 

diversity of citizenship, the Court has held that the obligation of 

contracts is capable of impairment by subsequent judicial decisions 

no less than by subsequent statutes and that it is able to prevent 

such impairment. In cases, on the other hand, of which it obtains 

jurisdiction only on the constitutional ground and by appeal from 

a state court, it has always adhered in terms to the doctrine that 

the word ‘‘laws’’ as used in Article I, § 10, does not comprehend judicial decisions. Yet even in these cases, it will intervene to protect 

contracts entered into on the faith of existing decisions from an impairment that is the direct result of a reversal of such decisions, 

but there must be in the offing, as it were, a statute of some kind— 

one possibly many years older than the contract rights involved— 

on which to pin its decision. 1953

In 1922, Congress, through an amendment to the Judicial 

Code, endeavored to extend the reviewing power of the Supreme 

Court to suits involving ‘‘. . . the validity of a contract wherein it is 

claimed that a change in the rule of law or construction of statutes 

by the highest court of a State applicable to such contract would 

be repugnant to the Constitution of the United States... .’’ This appeared to be an invitation to the Court to say frankly that the obligation of a contract can be impaired by a subsequent court decision. The Court, however, declined the invitation in an opinion by 

ART. I—LEGISLATIVE DEPARTMENT 389

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1954Tidal Oil Co. v. Flannagan, 263 U.S. 444, 450, 451–452 (1924). 1955 304 U.S. 64 (1938). 1956Walker v. Whitehead, 83 U.S. (16 Wall.) 314 (1873); Wood v. Lovett, 313 

U.S. 362, 370 (1941). 1957 17 U.S. (4 Wheat.) 122, 197 (1819); see also Curran v. Arkansas, 56 U.S. 

(15 How.) 304 (1854). 

Chief Justice Taft that reviewed many of the cases covered in the 

preceding paragraphs. 

Dealing with Gelpcke and adherent decisions, Chief Justice 

Taft said: ‘‘These cases were not writs of error to the Supreme 

Court of a State. They were appeals or writs of error to federal 

courts where recovery was sought upon municipal or county bonds 

or some other form of contracts, the validity of which had been sustained by decisions of the Supreme Court of a State prior to their 

execution, and had been denied by the same court after their issue 

or making. In such cases the federal courts exercising jurisdiction 

between citizens of different States held themselves free to decide 

what the state law was, and to enforce it as laid down by the state 

Supreme Court before the contracts were made rather than in later 

decisions. They did not base this conclusion on Article I, § 10, of 

the Federal Constitution, but on the state law as they determined 

it, which, in diverse citizenship cases, under the third Article of the 

Federal Constitution they were empowered to do. Burgess v. Seligman, 107 U.S. 20 (1883).’’ 1954 While doubtless this was an available 

explanation in 1924, the decision in 1938 in Erie Railroad Co. v. 

Tompkins, 1955 so cut down the power of the federal courts to decide 

diversity of citizenship cases according to their own notions of ‘‘general principles of common law’’ as to raise the question whether the 

Court will not be required eventually to put Gelpcke and its companions and descendants squarely on the obligation of contracts 

clause or else abandon them. 

‘‘Obligation’’ Defined.—A contract is analyzable into two elements: the agreement, which comes from the parties, and the obligation, which comes from the law and makes the agreement binding on the parties. The concept of obligation is an importation from 

the Civil Law and its appearance in the contracts clause is supposed to have been due to James Wilson, a graduate of Scottish 

universities and a Civilian. Actually, the term as used in the contracts clause has been rendered more or less superfluous by the 

doctrine that the law in force when a contract is made enters into 

and comprises a part of the contract itself. 1956 Hence, the Court 

sometimes recognizes the term in its decisions applying the clause, 

sometimes ignores it. In Sturges v. Crowninshield, 1957 Marshall defined ‘‘obligation of contract’’ as ‘‘the law which binds the parties 

to perform their agreement;’’ but a little later the same year he set 

390 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1958 17 U.S. (4 Wheat.) 518 (1819). 1959 17 U.S. at 627. 1960 290 U.S. 398 (1934). 1961 290 U.S. at 431. 1962 290 U.S. at 435. And see City of El Paso v. Simmons, 379 U.S. 497 (1965). 1963 ‘‘The Blaisdell decision represented a realistic appreciation of the fact that 

ours is an evolving society and that the general words of the contract clause were 

not intended to reduce the legislative branch of government to helpless impotency.’’ 

Justice Black, in Wood v. Lovett, 313 U.S. 362, 383 (1941). 1964 Crane v. Hahlo, 258 U.S. 142, 145–146 (1922); Louisiana ex rel. Folsom v. 

Mayor of New Orleans, 109 U.S. 285, 288 (1883); Morley v. Lake Shore Ry., 146 

U.S. 162, 169 (1892). That the obligation of contracts clause did not protect vested 

rights merely as such was stated by the Court as early as Satterlee v. Matthewson, 

forth the points presented for consideration in Dartmouth College 

v. Woodward, 1958 to be: ‘‘1. Is this contract protected by the Constitution of the United States? 2. Is it impaired by the acts under 

which the defendant holds?’’ 1959 The word ‘‘obligation’’ undoubtedly 

does carry the implication that the Constitution was intended to 

protect only executory contracts—i.e., contracts still awaiting performance, but this implication was early rejected for a certain class 

of contracts, with immensely important result for the clause. 

‘‘Impair’’ Defined.—‘‘The obligations of a contract,’’ said Chief 

Justice Hughes for the Court in Home Building & Loan Ass’n v. 

Blaisdell, 1960 ‘‘are impaired by a law which renders them invalid, 

or releases or extinguishes them . . ., and impairment . . . has been 

predicated upon laws which without destroying contracts derogate 

from substantial contractual rights.’’ 1961 But he adds: ‘‘Not only are 

existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal 

order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile,—a government which retains 

adequate authority to secure the peace and good order of society. 

This principle of harmonizing the constitutional prohibition with 

the necessary residuum of state power has had progressive recognition in the decisions of this Court.’’ 1962 In short, the law from 

which the obligation stems must be understood to include constitutional law and, moreover a ‘‘progressive’’ constitutional law. 1963

Vested Rights Not Included.—The term ‘‘contracts’’ is used 

in the contracts clause in its popular sense of an agreement of 

minds. The clause therefore does not protect vested rights that are 

not referable to such an agreement between the State and an individual, such as the right of recovery under a judgment. The individual in question may have a case under the Fourteenth Amendment, but not one under Article I, § 10. 1964

ART. I—LEGISLATIVE DEPARTMENT 391

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

27 U.S. (2 Pet.) 380, 413 (1829); and again in Charles River Bridge v. Warren 

Bridge, 36 U.S. (11 Pet.) 420, 539–540 (1837). 1965Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 629 (1819). 1966 In Munn v. Illinois, 94 U.S. 113 (1877), a category of ‘‘business affected with 

a public interest’’ and whose property is ‘‘impressed with a public use’’ was recognized. A corporation engaged in such a business becomes a ‘‘quasi-public’’ corporation, and the power of the State to regulate it is larger than in the case of a purely 

private corporation. Inasmuch as most corporations receiving public franchises are 

of this character, the final result of Munn was to enlarge the police power of the 

State in the case of the most important beneficiaries of the Dartmouth College decision.1967Meriwether v. Garrett, 102 U.S. 472 (1880); Covington v. Kentucky, 173 

U.S. 231 (1899); Hunter v. Pittsburgh, 207 U.S. 161 (1907). 1968 East Hartford v. Hartford Bridge Co., 51 U.S. (10 How.) 511 (1851); Hunter 

v. Pittsburgh, 207 U.S. 161 (1907). 1969 City of Trenton v. New Jersey, 262 U.S. 182, 191 (1923). 1970 Newton v. Commissioners, 100 U.S. 548 (1880). 

Public Grants That Are Not ‘‘Contracts’’.—Not all grants 

by a State constitute ‘‘contracts’’ within the sense of Article I, § 10. 

In his Dartmouth College decision, Chief Justice Marshall conceded 

that ‘‘if the act of incorporation be a grant of political power, if it 

creates a civil institution, to be employed in the administration of 

the government . . . the subject is one in which the legislature of the 

State may act according to its own judgment,’’ unrestrained by the 

Constitution 1965 —thereby drawing a line between ‘‘public’’ and 

‘‘private’’ corporations that remained undisturbed for more than 

half a century. 1966

It has been subsequently held many times that municipal corporations are mere instrumentalities of the State for the more convenient administration of local governments, whose powers may be 

enlarged, abridged, or entirely withdrawn at the pleasure of the 

legislature. 1967 The same principle applies, moreover, to the property rights which the municipality derives either directly or indirectly from the State. This was first held as to the grant of a franchise to a municipality to operate a ferry and has since then been 

recognized as the universal rule. 1968 It was stated in a case decided 

in 1923 that the distinction between the municipality as an agent 

of the State for governmental purposes and as an organization to 

care for local needs in a private or proprietary capacity, while it 

limited the legal liability of municipalities for the negligent acts or 

omissions of its officers or agents, did not, on the other hand, furnish ground for the application of constitutional restraints against 

the State in favor of its own municipalities. 1969 Thus, no contract 

rights were impaired by a statute relocating a county seat, even 

though the former location was by law to be ‘‘permanent’’ and the 

citizens of the community had donated land and furnished bonds 

for the erection of public buildings. 1970 Similarly, a statute changing the boundaries of a school district, giving to the new district 

392 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1971Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905). 1972Faitoute Co. v. City of Asbury Park, 316 U.S. 502 (1942). 1973 Butler v. Pennsylvania, 51 U.S. (10 How.) 402 (1850); Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Dodge v. Board of Education, 302 U.S. 74 (1937); 

Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928). 1974 Butler v. Pennsylvania, 51 U.S. (10 How.) 420 (1850). Cf. Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803); Hoke v. Henderson, 154 N.C. (4 Dev.) 1 (1833). See

also United States v. Fisher, 109 U.S. 143 (1883); United States v. Mitchell, 109 

U.S. 146 (1883); Crenshaw v. United States, 134 U.S. 99 (1890). 1975Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928). 1976 Hall v. Wisconsin, 103 U.S. 5 (1880). Cf. Higginbotham v. City of Baton 

Rouge, 306 U.S. 535 (1930). 1977Phelps v. Board of Education, 300 U.S. 319 (1937). 

the property within its limits that had belonged to the former district, and requiring the new district to assume the debts of the old 

district, did not impair the obligation of contracts. 1971 Nor was the 

contracts clause violated by state legislation authorizing state control over insolvent communities through a Municipal Finance Commission. 1972

On the same ground of public agency, neither appointment nor 

election to public office creates a contract in the sense of Article I, 

§ 10, whether as to tenure, or salary, or duties, all of which remain, 

so far as the Constitution of the United States is concerned, subject 

to legislative modification or outright repeal. 1973 Indeed, there can 

be no such thing in this country as property in office, although the 

common law sustained a different view sometimes reflected in early 

cases. 1974 When, however, services have once been rendered, there 

arises an implied contract that they shall be compensated at the 

rate in force at the time they were rendered. 1975 Also, an express 

contract between the State and an individual for the performance 

of specific services falls within the protection of the Constitution. 

Thus, a contract made by the governor pursuant to a statute authorizing the appointment of a commissioner to conduct, over a period of years, a geological, mineralogical, and agricultural survey of 

the State, for which a definite sum had been authorized, was held 

to have been impaired by repeal of the statute. 1976 But a resolution 

of a local board of education reducing teachers’ salaries for the 

school year 1933–1934, pursuant to an act of the legislature authorizing such action, was held not to impair the contract of a 

teacher who, having served three years, was by earlier legislation 

exempt from having his salary reduced except for inefficiency or 

misconduct. 1977 Similarly, it was held that an Illinois statute that 

reduced the annuity payable to retired teachers under an earlier 

act did not violate the contracts clause, since it had not been the 

intention of the earlier act to propose a contract but only to put 

ART. I—LEGISLATIVE DEPARTMENT 393

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1978Dodge v. Board of Education, 302 U.S. 74 (1937). 1979 Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938). 1980 11 U.S. (7 Cr.) 164 (1812). 1981The Delaware Railroad Tax, 85 U.S. (18 Wall.) 206, 225 (1874); Pacific R.R. 

v. Maguire, 87 U.S. (20 Wall.) 36, 43 (1874); Humphrey v. Pegues, 83 U.S. (16 Wall.) 

244, 249 (1873); Home of the Friendless v. Rouse, 75 U.S. (8 Wall.) 430, 438 (1869). 1982 57 U.S. (16 How.) 369 (1854). 1983 57 U.S. at 382–83. 

into effect a general policy. 1978 On the other hand, the right of one, 

who had become a ‘‘permanent teacher’’ under the Indiana Teachers Tenure Act of 1927, to continued employment was held to be 

contractual and to have been impaired by the repeal in 1933 of the 

earlier act. 1979

Tax Exemptions: When Not ‘‘Contracts’’.—From a different 

point of view, the Court has sought to distinguish between grants 

of privileges, whether to individuals or to corporations, which are 

contracts and those which are mere revocable licenses, although on 

account of the doctrine of presumed consideration mentioned earlier, this has not always been easy to do. In pursuance of the precedent set in New Jersey v. Wilson, 1980 the legislature of a State 

‘‘may exempt particular parcels of property or the property of particular persons or corporations from taxation, either for a specified 

period or perpetually, or may limit the amount or rate of taxation, 

to which such property shall be subjected,’’ and such an exemption 

is frequently a contract within the sense of the Constitution. Indeed this is always so when the immunity is conferred upon a corporation by the clear terms of its charter. 1981 When, on the other 

hand, an immunity of this sort springs from general law, its precise 

nature is more open to doubt, as a comparison of decisions will 

serve to illustrate. 

In State Bank of Ohio v. Knoop, 1982 a closely divided Court 

held that a general banking law of Ohio, which provided that companies complying therewith and their stockholders should be exempt from all but certain taxes, was, as to a bank organized under 

it and its stockholders, a contract within the meaning of Article I, 

§ 10. The provision was not, the Court said, ‘‘a legislative command 

nor a rule of taxation until changed, but a contract stipulating 

against any change, from the nature of the language used and the 

circumstances under which it was adopted.’’ 1983 When, however, 

the State of Michigan pledged itself, by a general legislative act, 

not to tax any corporation, company, or individual undertaking to 

manufacture salt in the State from water there obtained by boring 

on property used for this purpose and, furthermore, to pay a bounty on the salt so manufactured, it was held not to have engaged 

itself within the constitutional sense. ‘‘General encouragements,’’ 

394 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1984Salt Company v. East Saginaw, 80 U.S. (13 Wall.) 373, 379 (1872). See

also Welch v. Cook, 97 U.S. 541 (1879); Grand Lodge v. New Orleans, 166 U.S. 143 

(1897); Wisconsin & Michigan Ry. v. Powers, 191 U.S. 379 (1903). Cf. Ettor v. Tacoma, 228 U.S. 148 (1913), in which it was held that the repeal of a statute providing for consequential damages caused by changes of grades of streets could not 

constitutionally affect an already accrued right to compensation. 1985See Rector of Christ Church v. County of Philadelphia, 65 U.S. (24 How.) 

300, 302 (1861); Seton Hall College v. South Orange, 242 U.S. 100 (1916). 1986 Compare the above cases with Home of the Friendless v. Rouse, 75 U.S. (8 

Wall.) 430, 437 (1869); Illinois Cent, R.R. v. Decatur, 147 U.S. 190 (1893), with Wisconsin & Michigan Ry. Co. v. Powers, 191 U.S. 379 (1903). 1987 According to Benjamin F. Wright, throughout the first century of government under the Constitution ‘‘the contract clause had been considered in almost 

forty per cent of all cases involving the validity of State legislation,’’ and of these 

the vast proportion involved legislative grants of one type or other, the most important category being charters of incorporation. However, the numerical prominence 

of such grants in the cases does not overrate their relative importance from the 

point of view of public interest. B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 95 (1938). 

Madison explained the clause by allusion to what had occurred ‘‘in the internal 

administration of the States’’ in the years preceding the Constitutional Convention, 

in regard to private debts. Violations of contracts had become familiar in the form 

of depreciated paper made legal tender, of property substituted for money, of installment laws, and of the occlusions of the courts of justice. 3 M. FARRAND, THE

RECORDS OF THE FEDERAL CONVENTION OF 1787 548 (rev. ed. 1937); THE FEDERALIST, No. 44 (J. Cooke ed. 1961), 301–302. 

said the Court, ‘‘held out to all persons indiscriminately, to engage 

in a particular trade or manufacture, whether such encouragement 

be in the shape of bounties or drawbacks, or other advantage, are 

always under the legislative control, and may be discontinued at 

any time.’’ 1984 So far as exemption from taxation is concerned the 

difference between these two cases is obviously slight, but the later 

one is unquestionable authority for the proposition that legislative 

bounties are repealable at will. 

Furthermore, exemptions from taxation have in certain cases 

been treated as gratuities repealable at will, even when conferred 

by specific legislative enactments. This would seem always to be 

the case when the beneficiaries were already in existence when the 

exemption was created and did nothing of a more positive nature 

to qualify for it than to continue in existence. 1985 Yet the cases are 

not always easy to explain in relation to each other, except in light 

of the fact that the Court’s point of view has altered from time to 

time. 1986

‘‘Contracts’’ Include Public Contracts and Corporate 

Charters.—The question, which was settled very early, was 

whether the clause was intended to be applied solely in protection 

of private contracts or in the protection also of public grants, or, 

more broadly, in protection of public contracts, in short, those to 

which a State is a party. 1987 Support for the affirmative answer accorded this question could be derived from the following sources. 

ART. I—LEGISLATIVE DEPARTMENT 395

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1988 2 THE WORKS OF JAMES WILSON 834 (R. McCloskey ed., 1967). 

1989 2 U.S. (2 Dall.) 419 (1793). 

1990Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 338 (1827). 

For one thing, the clause departed from the comparable provision 

in the Northwest Ordinance (1787) in two respects: first, in the 

presence of the word ‘‘obligation;’’ secondly, in the absence of the 

word ‘‘private.’’ There is good reason for believing that James Wilson may have been responsible for both alterations, inasmuch as 

two years earlier he had denounced a current proposal to repeal 

the Bank of North America’s Pennsylvania charter in the following 

words: ‘‘If the act for incorporating the subscribers to the Bank of 

North America shall be repealed in this manner, every precedent 

will be established for repealing, in the same manner, every other 

legislative charter in Pennsylvania. A pretence, as specious as any 

that can be alleged on this occasion, will never be wanting on any 

future occasion. Those acts of the state, which have hitherto been 

considered as the sure anchors of privilege and of property, will become the sport of every varying gust of politicks, and will float 

wildly backwards and forwards on the irregular and impetuous 

tides of party and faction.’’ 1988

Furthermore, in its first important constitutional case, that of 

Chisholm v. Georgia, 1989 the Court ruled that its original jurisdiction extended to an action in assumpsit brought by a citizen of 

South Carolina against the State of Georgia. This construction of 

the federal judicial power was, to be sure, promptly repealed by the 

Eleventh Amendment, but without affecting the implication that 

the contracts protected by the Constitution included public contracts.

One important source of this diversity of opinion is to be found 

in that ever welling spring of constitutional doctrine in early days, 

the prevalence of natural law notions and the resulting vague significance of the term ‘‘law.’’ In Sturges v. Crowninshield, Marshall 

defined the obligation of contracts as ‘‘the law which binds the parties to perform their undertaking.’’ Whence, however, comes this 

law? If it comes from the State alone, which Marshall was later to 

deny even as to private contracts, 1990 then it is hardly possible to 

hold that the States’ own contracts are covered by the clause, 

which manifestly does not create an obligation for contracts but 

only protects such obligation as already exists. But, if, on the other 

hand, the law furnishing the obligation of contracts comprises Natural Law and kindred principles, as well as law which springs from 

state authority, then, inasmuch as the State itself is presumably 

396 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1991 10 U.S. (6 Cr.) 87 (1810). 

1992 B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 22 (1938). Professor Wright dates Hamilton’s pamphlet, 1796. 

bound by such principles, the State’s own obligations, so far as harmonious with them, are covered by the clause. 

Fletcher v. Peck 1991 has the double claim to fame that it was 

the first case in which the Supreme Court held a state enactment 

to be in conflict with the Constitution, and also the first case to 

hold that the contracts clause protected public grants. By an act 

passed on January 7, 1795, the Georgia Legislature directed the 

sale to four land companies of public lands comprising most of 

what are now the States of Alabama and Mississippi. As soon became known, the passage of the measure had been secured by open 

and wholesale bribery. So when a new legislature took over in the 

winter of 1795–1796, almost its first act was to revoke the sale 

made the previous year. 

Meantime, however, the land companies had disposed of several millions of acres of their holdings to speculators and prospective settlers, and following the rescinding act some of these took 

counsel with Alexander Hamilton as to their rights. In an opinion 

which was undoubtedly known to the Court when it decided Fletcher v. Peck, Hamilton characterized the repeal as contravening ‘‘the 

first principles of natural justice and social policy,’’ especially so far 

as it was made ‘‘to the prejudice . . . of third persons . . . innocent 

of the alleged fraud or corruption; . . . moreover,’’ he added, ‘‘the 

Constitution of the United States, article first, section tenth, declares that no State shall pass a law impairing the obligations of 

contract. This must be equivalent to saying no State shall pass a 

law revoking, invalidating, or altering a contract. Every grant from 

one to another, whether the grantor be a State or an individual, 

is virtually a contract that the grantee shall hold and enjoy the 

thing granted against the grantor, and his representatives. It, 

therefore, appears to me that taking the terms of the Constitution 

in their large sense, and giving them effect according to the general 

spirit and policy of the provisions, the revocation of the grant by 

the act of the legislature of Georgia may justly be considered as 

contrary to the Constitution of the United States, and, therefore 

null. And that the courts of the United States, in cases within their 

jurisdiction, will be likely to pronounce it so.’’ 1992 In the debate to 

which the ‘‘Yazoo Land Frauds,’’ as they were contemporaneously 

known, gave rise in Congress, Hamilton’s views were quoted frequently.

ART. I—LEGISLATIVE DEPARTMENT 397

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1993 10 U.S. (6 Cr.) 87, 139 (1810). Justice Johnson, in his concurring opinion, 

relied exclusively on general principles. ‘‘I do not hesitate to declare, that a State 

does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; a principle which will impose laws even 

on the Deity.’’ Id. at 143. 1994 11 U.S. (7 Cr.) 164 (1812). The exemption from taxation which was involved 

in this case was held in 1886 to have lapsed through the acquiescence for sixty 

years by the owners of the lands in the imposition of taxes upon these. Given v. 

Wright, 117 U.S. 648 (1886). 1995Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). 1996 379 U.S. 497 (1965). See also Thorpe v. Housing Authority, 393 U.S. 268, 

278–279 (1969). 

So far as it invoked the obligation of contracts clause, Marshall’s opinion in Fletcher v. Peck performed two creative acts. He 

recognized that an obligatory contract was one still to be performed—in other words, was an executory contract, also that a 

grant of land was an executed contract—a conveyance. But, he asserted, every grant is attended by ‘‘an implied contract’’ on the part 

of the grantor not to claim again the thing granted. Thus, grants 

are brought within the category of contracts having continuing obligation and so within Article I, § 10. But the question still remained 

of the nature of this obligation. Marshall’s answer to this can only 

be inferred from his statement at the end of his opinion. The State 

of Georgia, he says, ‘‘was restrained’’ from the passing of the rescinding act ‘‘either by general principles which are common to our 

free institutions, or by particular provisions of the Constitution of 

the United States.’’ 1993

The protection thus thrown about land grants was presently 

extended, in the case of New Jersey v. Wilson, 1994 to a grant of immunity from taxation that the State of New Jersey had accorded 

certain Indian lands, and several years after that, in the Dartmouth College case, 1995 to the charter privileges of an eleemosynary corporation. 

In City of El Paso v. Simmons, 1996 the Court held, over a vigorous dissent by Justice Black, that Texas had not violated this 

clause when it amended its laws governing the sale of public lands 

so as to restrict the previously unlimited right of a delinquent to 

reinstate himself upon forfeited land by a single payment of all 

past interest due. 

Corporate Charters: Different Ways of Regarding.—There

are three ways in which the charter of a corporation may be regarded. In the first place, it may be thought of simply as a license 

terminable at will by the State, like a liquor-seller’s license or an 

auctioneer’s license, but affording the incorporators, so long as it 

remains in force, the privileges and advantages of doing business 

in the form of a corporation. Nowadays, indeed, when corporate 

398 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

1997 In 1806 Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, without mentioning the contracts clause, declared that rights legally vested 

in a corporation cannot be ‘‘controlled of destroyed by a subsequent statute, unless 

a power [for that purpose] be reserved to the legislature in the act of incorporation,’’ 

Wales v. Stetson, 2 Mass. 142 (1806). See also Stoughton v. Baker, 4 Mass. 521 

(1808) to like effect; cf. Locke v. Dane, 9 Mass. 360 (1812), in which it is said that 

the purpose of the contracts clause was to provide against paper money and insolvent laws. Together these holdings add up to the conclusion that the reliance of the 

Massachusetts court was on ‘‘fundamental principles,’’ rather than the contracts 

clause. 1998 17 U.S. (4 Wheat.) at 577–595 (Webster’s argument); id. at 666 (Story’s 

opinion). See also Story’s opinion for the Court in Terrett v. Taylor, 13 U.S. (9 Cr.) 

43 (1815). 1999 17 U.S. (4 Wheat.) 518 (1819). 2000 17 U.S. at 627. 

charters are usually issued to all legally qualified applicants by an 

administrative officer who acts under a general statute, this would 

probably seem to be the natural way of regarding them were it not 

for the Dartmouth College decision. But, in 1819 charters were 

granted directly by the state legislatures in the form of special acts 

and there were very few profit-taking corporations in the country. 

The later extension of the benefits of the Dartmouth College decision to corporations organized under general law took place without discussion. 

Secondly, a corporate charter may be regarded as a franchise 

constituting a vested or property interest in the hands of the holders, and therefore as forfeitable only for abuse or in accordance 

with its own terms. This is the way in which some of the early 

state courts did regard them at the outset. 1997 It is also the way 

in which Blackstone regarded them in relation to the royal prerogative, although not in relation to the sovereignty of Parliament, and 

the same point of view found expression in Story’s concurring opinion in Dartmouth College v. Woodward, as it did also in Webster’s 

argument in that case. 1998

The third view is the one formulated by Chief Justice Marshall 

in his controlling opinion in Dartmouth College v. Woodward. 1999

This is that the charter of Dartmouth College, a purely private institution, was the outcome and partial record of a contract between 

the donors of the college, on the one hand, and the British Crown, 

on the other, and the contract still continued in force between the 

State of New Hampshire, as the successor to the Crown and Government of Great Britain, and the trustees, as successors to the donors. The charter, in other words, was not simply a grant—rather 

it was the documentary record of a still existent agreement between still existent parties. 2000 Taking this view, which he developed with great ingenuity and persuasiveness, Marshall was able 

to appeal to the obligation of contracts clause directly, and without 

ART. I—LEGISLATIVE DEPARTMENT 399

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2001 17 U.S. at 637; see also Home of the Friendless v. Rouse, 75 U.S. (8 Wall.) 

430, 437 (1869). 2002 29 U.S. (4 Pet.) 514 (1830). 2003 36 U.S. (11 Pet.) 420 (1837). 2004Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 712 (1819) (Justice 

Story). 2005 Home of the Friendless v. Rouse, 75 U.S. (8 Wall.) 430, 438 (1869); Pennsylvania College Cases, 80 U.S. (13 Wall.) 190, 213 (1872); Miller v. New York, 82 U.S. 

(15 Wall.) 478 (1873); Murray v. Charleston, 96 U.S. 432 (1878); Greenwood v. 

Freight Co., 105 U.S. 13 (1882); Chesapeake & Ohio Ry. v. Miller, 114 U.S. 176 

(1885); Louisville Water Company v. Clark, 143 U.S. 1 (1892). 

further use of his fiction in Fletcher v. Peck of an executory contract 

accompanying the grant. 

A difficulty still remained, however, in the requirement that a 

contract, before it can have obligation, must import consideration, 

that is to say, must be shown not to have been entirely gratuitous 

on either side. Moreover, the consideration, which induced the 

Crown to grant a charter to Dartmouth College, was not merely a 

speculative one. It consisted of the donations of the donors to the 

important public interest of education. Fortunately or unfortunately, in dealing with this phase of the case, Marshall used more 

sweeping terms than were needed. ‘‘The objects for which a corporation is created,’’ he wrote, ‘‘are universally such as the government wishes to promote. They are deemed beneficial to the country; 

and this benefit constitutes the consideration, and in most cases, 

the sole consideration of the grant.’’ In other words, the simple fact 

of the charter having been granted imports consideration from the 

point of view of the State. 2001 With this doctrine before it, the 

Court in Providence Bank v. Billings, 2002 and again in Charles

River Bridge v. Warren Bridge, 2003 admitted without discussion of 

the point, the applicability of the Dartmouth College decision to 

purely business concerns. 

Reservation of Right to Alter or Repeal Corporate Charters.—It is next in order to consider four principles or doctrines 

whereby the Court has itself broken down the force of the Dartmouth College decision in great measure in favor of state legislative 

power. By the logic of the Dartmouth College decision itself, the 

State may reserve in a corporate charter the right to ‘‘amend, alter, 

and repeal’’ the same, and such reservation becomes a part of the 

contract between the State and the incorporators, the obligation of 

which is accordingly not impaired by the exercise of the right. 2004

Later decisions recognize that the State may reserve the right to 

amend, alter, and repeal by general law, with the result of incorporating the reservation in all charters of subsequent date. 2005

There is, however, a difference between a reservation by a statute 

and one by constitutional provision. While the former may be reVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00337 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
400 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2006 New Jersey v. Yard, 95 U.S. 104, 111 (1877). 2007See Holyoke Company v. Lyman, 82 U.S. (15 Wall.) 500, 520 (1873), See

also Shields v. Ohio, 95 U.S. 319 (1877); Fair Haven R.R. v. New Haven, 203 U.S. 

379 (1906); Berea College v. Kentucky, 211 U.S. 45 (1908). Also Lothrop v. Stedman, 

15 Fed. Cas. 922 (No. 8519) (C.C.D. Conn. 1875) where the principles of natural justice are thought to set a limit to the power. 2008See in this connection the cases cited by Justice Sutherland in his opinion 

for the Court in Phillips Petroleum Co. v. Jenkins, 297 U.S. 629 (1936). 2009 Curran v. Arkansas, 56 U.S. (15 How.) 304 (1853); Shields v. Ohio, 95 U.S. 

319 (1877); Greenwood v. Freight Co., 105 U.S. 13 (1882); Adirondack Ry. v. New 

York, 176 U.S. 335 (1900); Stearns v. Minnesota, 179 U.S. 223 (1900); Chicago, M. 

& St. P. R.R. v. Wisconsin, 238 U.S. 491 (1915); Coombes v. Getz, 285 U.S. 434 

(1932). 2010Pennsylvania College Cases, 80 U.S. (13 Wall.) 190, 218 (1872). See also 

Calder v. Michigan, 218 U.S. 591 (1910). 2011Lake Shore & Michigan Southern Ry. v. Smith, 173 U.S. 684, 690 (1899); 

Coombes v. Getz, 285 U.S. 434 (1932). Both these decisions cite Greenwood v. 

Freight Co., 105 U.S. 13, 17 (1882), but without apparent justification. 

pealed as to a subsequent charter by the specific terms thereof, the 

latter may not. 2006

Is the right reserved by a State to ‘‘amend’’ or ‘‘alter’’ a charter 

without restriction? When it is accompanied, as it generally is, by 

the right to ‘‘repeal,’’ one would suppose that the answer to this 

question was self-evident. Nonetheless, there are a number of judicial dicta to the effect that this power is not without limit, that it 

must be exercised reasonably and in good faith, and that the alterations made must be consistent with the scope and object of the 

grant. 2007 Such utterances amount, apparently, to little more than 

an anchor to windward, for while some of the state courts have applied tests of this nature to the disallowance of legislation, it does 

not appear that the Supreme Court of the United States has ever 

done so. 2008

Quite different is it with the distinction pointed out in the 

cases between the franchises and privileges that a corporation derives from its charter and the rights of property and contract that 

accrue to it in the course of its existence. Even the outright repeal 

of the former does not wipe out the latter or cause them to escheat 

to the State. The primary heirs of the defunct organization are its 

creditors, but whatever of value remains after their valid claims 

are met goes to the former shareholders. 2009 By the earlier weight 

of authority, on the other hand, persons who contract with companies whose charters are subject to legislative amendment or repeal 

do so at their own risk; any ‘‘such contracts made between individuals and the corporation do not vary or in any manner change or 

modify the relation between the State and the corporation in respect to the right of the State to alter, modify, or amend such a 

charter. . . .’’ 2010 But later holdings becloud this rule. 2011

ART. I—LEGISLATIVE DEPARTMENT 401

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2012 29 U.S. (4 Pet.) 514 (1830). 

2013Thorpe v. Rutland & Burlington R.R., 27 Vt. 140 (1854). 

2014Thus a railroad may be required, at its own expense and irrespective of benefits to itself, to eliminate grade crossings in the interest of the public safety, New 

York & N.E. R.R. v. Bristol, 151 U.S. 556 (1894), to make highway crossings reasonably safe and convenient for public use, Great Northern Ry. v. Minnesota ex rel. 

Clara City, 246 U.S. 434 (1918), to repair viaducts, Northern Pacific Railway v. Duluth, 208 U.S. 583 (1908), and to fence its right of way, Minneapolis & St. L. Ry. 

v. Emmons, 149 U.S. 364 (1893). Though a railroad company owns the right of way 

along a street, the city may require it to lay tracks to conform to the established 

grade; to fill in tracks at street intersections; and to remove tracks from a busy 

street intersection, when the attendant disadvantage and expense are small and the 

safety of the public appreciably enhanced Denver & R.G. R.R. v. Denver, 250 U.S. 

241 (1919). 

Likewise the State, in the public interest, may require a railroad to reestablish 

an abandoned station, even though the railroad commission had previously authorized its abandonment on condition that another station be established elsewhere, a 

condition which had been complied with. Railroad Co. v. Hamersley, 104 U.S. 1 

(1881). It may impose upon a railroad liability for fire communicated by its locomotives, even though the State had previously authorized the company to use said 

type of locomotive power, St. Louis & S. F. Ry. v. Mathews, 165 U.S. 1, 5 (1897), 

and it may penalize the failure to cut drains through embankments so as to prevent 

flooding of adjacent lands. Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915). 

Corporation Subject to the Law and Police Power.—But

suppose the State neglects to reserve the right to amend, alter, or 

repeal. Is it, then, without power to control its corporate creatures? 

By no means. Private corporations, like other private persons, are 

always presumed to be subject to the legislative power of the State, 

from which it follows that immunities conferred by charter are to 

be treated as exceptions to an otherwise controlling rule. This principle was recognized by Chief Justice Marshall in the case of Providence Bank v. Billings, 2012 in which he held that in the absence of 

express stipulation or reasonable implication to the contrary in its 

charter, the bank was subject to the taxing power of the State, notwithstanding that the power to tax is the power to destroy. 

And of course the same principle is equally applicable to the 

exercise by the State of its police powers. Thus, in what was perhaps the leading case before the Civil War, the Supreme Court of 

Vermont held that the legislature of that State had the right, in 

furtherance of the public safety, to require chartered companies operating railways to fence in their tracks and provide cattle guards. 

In a matter of this nature, said the court, corporations are on a 

level with individuals engaged in the same business, unless, from 

their charter, they can prove the contrary. 2013 Since then the rule 

has been applied many times in justification of state regulation of 

railroads, 2014 and even of the application of a state prohibition law 

402 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2015 Beer Co. v. Massachusetts, 97 U.S. 25 (1878). See also Fertilizing Co. v. 

Hyde Park, 97 U.S. 659 (1878); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 

345 (1909). 

2016 36 U.S. (11 Pet.) 420 (1837). 

2017 36 U.S. at 548–53. 

to a company that had been chartered expressly to manufacture 

beer. 2015

Strict Construction of Charters, Tax Exemptions.—Long,

however, before the cases last cited were decided, the principle that 

they illustrate had come to be powerfully reinforced by two others, 

the first of which is that all charter privileges and immunities are 

to be strictly construed as against the claims of the State, or as it 

is otherwise often phrased, ‘‘nothing passes by implication in a public grant.’’ 

The leading case was that of the Charles River Bridge v. Warren Bridge, 2016 which was decided shortly after Chief Justice Marshall’s death by a substantially new Court. The question at issue 

was whether the charter of the complaining company, which authorized it to operate a toll bridge, stood in the way of the State’s 

permitting another company of later date to operate a free bridge 

in the immediate vicinity. Inasmuch as the first company could 

point to no clause in its charter specifically vesting it with an exclusive right, the Court held the charter of the second company to 

be valid on the principle just stated. Justice Story, presented a vigorous dissent, in which he argued cogently, but unavailingly, that 

the monopoly claimed by the Charles River Bridge Company was 

fully as reasonable an implication from the terms of its charter and 

the circumstances surrounding its concession as perpetuity had 

been from the terms of the Dartmouth College charter and the ensuing transaction. 

The Court was in fact making new law, because it was looking 

at things from a new point of view. This was the period when judicial recognition of the Police Power began to take on a doctrinal 

character. It was also the period when the railroad business was 

just beginning. Chief Justice Taney’s opinion evinces the influence 

of both these developments. The power of the State to provide for 

its own internal happiness and prosperity was not, he asserted, to 

be pared away by mere legal intendments, nor was its ability to 

avail itself of the lights of modern science to be frustrated by obsolete interests such as those of the old turnpike companies, the charter privileges of which, he apprehended, might easily become a bar 

to the development of transportation along new lines. 2017

ART. I—LEGISLATIVE DEPARTMENT 403

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2018 201 U.S. 400 (1906). 

2019 201 U.S. at 471–72, citing The Binghamton Bridge, 70 U.S. (3 Wall.) 51, 75 

(1866).

2020Memphis & L.R. R.R. v. Comm’rs, 112 U.S. 609, 617 (1884). See also Morgan

v. Louisiana, 93 U.S. 217 (1876); Wilson v. Gaines, 103 U.S. 417 (1881); Louisville 

& Nashville R.R. v. Palmes, 109 U.S. 244, 251 (1883); Norfolk & Western R.R. v. 

Pendleton, 156 U.S. 667, 673 (1895); Picard v. East Tennessee, V. & G. R.R., 130 

U.S. 637, 641 (1889). 

2021 Atlantic & Gulf R.R. v. Georgia, 98 U.S. 359, 365 (1879). 

2022Phoenix F. & M. Ins. Co. v. Tennessee, 161 U.S. 174 (1896). 

The rule of strict construction has been reiterated by the Court 

many times. In the Court’s opinion in Blair v. City of Chicago, 2018

decided nearly seventy years after the Charles River Bridge case,

it said: ‘‘Legislative grants of this character should be in such unequivocal form of expression that the legislative mind may be distinctly impressed with their character and import, in order that the 

privilege may be intelligently granted or purposely withheld. It is 

a matter of common knowledge that grants of this character are 

usually prepared by those interested in them, and submitted to the 

legislature with a view to obtain from such bodies the most liberal 

grant of privileges which they are willing to give. This is one 

among many reasons why they are to be strictly construed. . . . The

principle is this, that all rights which are asserted against the 

State must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not 

exist. If, on a fair reading of the instrument, reasonable doubts 

arise as to the proper interpretation to be given to it, those doubts 

are to be solved in favor of the State; and where it is susceptible 

of two meanings, the one restricting and the other extending the 

powers of the corporation, that construction is to be adopted which 

works the least harm to the State.’’’ 2019

An excellent illustration of the operation of the rule in relation 

to tax exemptions was furnished by the derivative doctrine that an 

immunity of this character must be deemed as intended solely for 

the benefit of the corporation receiving it and hence, in the absence 

of express permission by the State, may not be passed on to a successor. 2020 Thus, where two companies, each exempt from taxation, 

were permitted by the legislature to consolidate, the new corporation was held to be subject to taxation. 2021 Again, a statute which 

granted a corporation all ‘‘the rights and privileges’’ of an earlier 

corporation was held not to confer the latter’s ‘‘immunity’’ from taxation. 2022 Yet again, a legislative authorization of the transfer by 

one corporation to another of the former’s ‘‘estate, property, right, 

404 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2023 Rochester Ry. v. Rochester, 205 U.S. 236 (1907); followed in Wright v. Georgia R.R. & Banking Co., 216 U.S. 420 (1910); Rapid Transit Corp. v. New York, 303 

U.S. 573 (1938). Cf. Tennessee v. Whitworth, 117 U.S. 139 (1886), the authority of 

which is respected in the preceding case. 2024 Chicago, B. & K.C. R.R. v. Guffey, 120 U.S. 569 (1887). 2025Ford v. Delta and Pine Land Company, 164 U.S. 662 (1897). 2026 Vicksburg, S. & P. R.R. v. Dennis, 116 U.S. 665 (1886). 2027Millsaps College v. City of Jackson, 275 U.S. 129 (1927). 2028 Hale v. State Board, 302 U.S. 95 (1937). 2029 Railroad Comm’n Cases (Stone v. Farmers’ Loan & Trust Co.), 116 U.S. 307, 

330 (1886), extended in Southern Pacific Co. v. Campbell, 230 U.S. 537 (1913) to 

cases in which the word ‘‘reasonable’’ does not appear to qualify the company’s right 

to prescribe tolls. See also American Bridge Co. v. Railroad Comm’n, 307 U.S. 486 

(1939). 2030Georgia Ry. v. Town of Decatur, 262 U.S. 432 (1923). See also Southern

Iowa Elec. Co. v. City of Chariton, 255 U.S. 539 (1921). 2031 City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 15 (1898). 

privileges, and franchises’’ was held not to clothe the later company 

with the earlier one’s exemption from taxation. 2023

Furthermore, an exemption from taxation is to be strictly construed even in the hands of one clearly entitled to it. So the exemption conferred by its charter on a railway company was held not 

to extend to branch roads constructed by it under a later statute. 2024 Also, a general exemption of the property of a corporation 

from taxation was held to refer only to the property actually employed in its business. 2025 Also, the charter exemption of the capital stock of a railroad from taxation ‘‘for ten years after completion 

of the said road’’ was held not to become operative until the completion of the road. 2026 So also the exemption of the campus and 

endowment fund of a college was held to leave other lands of the 

college, though a part of its endowment, subject to taxation. 2027

Provisions in a statute that bonds of the State and its political subdivisions were not to be taxed and should not be taxed were held 

not to exempt interest on them from taxation as income of the owners. 2028

Strict Construction and the Police Power.—The police 

power, too, has frequently benefitted from the doctrine of strict construction, although this recourse is today seldom, if ever, necessary 

in this connection. Some of the more striking cases may be briefly 

summarized. The provision in the charter of a railway company 

permitting it to set reasonable charges still left the legislature free 

to determine what charges were reasonable. 2029 On the other hand, 

when a railway agreed to accept certain rates for a specified period, 

it thereby foreclosed the question of the reasonableness of such 

rates. 2030 The grant to a company of the right to supply a city with 

water for twenty-five years was held not to prevent a similar concession to another company by the same city. 2031 The promise by 

a city in the charter of a water company not to make a similar 

ART. I—LEGISLATIVE DEPARTMENT 405

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2032Skaneateles Water Co. v. Village of Skaneateles, 184 U.S. 354 (1902); Water 

Co. v. City of Knoxville, 200 U.S. 22 (1906); Madera Water Works v. City of Madera, 

228 U.S. 454 (1913). 2033 Rogers Park Water Co. v. Fergus, 180 U.S. 624 (1901). 2034 Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265 (1908); Wyandotte 

Gas Co. v. Kansas, 231 U.S. 622 (1914). 2035See also Puget Sound Traction Co. v. Reynolds, 244 U.S. 574 (1917). ‘‘Before 

we can find impairment of a contract we must find an obligation of the contract 

which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction 

require that the obligation alleged to have been impaired be clearly and unequivocally expressed.’’ Justice Black for the Court in Keefe v. Clark, 322 U.S. 393, 396– 

397 (1944). 2036 Brick Presbyterian Church v. New York, 5 Cow. (N.Y.) 538, 540 (1826). 

grant to any other person or corporation was held not to prevent 

the city itself from engaging in the business. 2032 A municipal concession to a water company to run for thirty years, and accompanied by the provision that the ‘‘said company shall charge the 

following rates,’’ was held not to prevent the city from reducing 

such rates. 2033 But more broadly, the grant to a municipality of the 

power to regulate the charges of public service companies was held 

not to bestow the right to contract away this power. 2034 Indeed,

any claim by a private corporation that it received the rate-making 

power from a municipality must survive a two-fold challenge: first, 

as to the right of the municipality under its charter to make such 

a grant, secondly, as to whether it has actually done so, and in 

both respects an affirmative answer must be based on express 

words and not on implication. 2035

Doctrine of Inalienability as Applied to Eminent Domain, 

Taxing, and Police Powers.—The second of the doctrines mentioned above, whereby the principle of the subordination of all persons, corporate and individual alike, to the legislative power of the 

State has been fortified, is the doctrine that certain of the State’s 

powers are inalienable, and that any attempt by a State to alienate 

them, upon any consideration whatsoever, is ipso facto void and 

hence incapable to producing a ‘‘contract’’ within the meaning of 

Article I, § 10. One of the earliest cases to assert this principle occurred in New York in 1826. The corporation of the City of New 

York, having conveyed certain lands for the purposes of a church 

and cemetery together with a covenant for quiet enjoyment, later 

passed a by-law forbidding their use as a cemetery. In denying an 

action against the city for breach of covenant, the state court said 

the defendants ‘‘had no power as a party, [to the covenant] to make 

a contract which should control or embarrass their legislative powers and duties.’’ 2036

The Supreme Court first applied similar doctrine in 1848 in a 

case involving a grant of exclusive right to construct a bridge at a 

406 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2037West River Bridge Co. v. Dix, 47 U.S. (6 How.) 507 (1848). See also Backus

v. Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. v. Vermont Cent. R. Co., 

21 Vt. 590 (1849); and Bonaparte v. Camden & A.R. Co., 3 Fed. Cas. 821 (No. 1617) 

(C.C.D.N.J. 1830). 2038Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20 (1917). 2039 Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 453, 455 (1892). 2040See especially Home of the Friendless v. Rouse, 75 U.S. (8 Wall.) 430 (1869), 

and The Washington University v. Rouse, 75 U.S. (8 Wall.) 439 (1869). 

specified locality. Sustaining the right of the State of Vermont to 

make a new grant to a competing company, the Court held that the 

obligation of the earlier exclusive grant was sufficiently recognized 

in making just compensation for it; and that corporate franchises, 

like all other forms of property, are subject to the overruling power 

of eminent domain. 2037 This reasoning was reinforced by an appeal 

to the theory of state sovereignty, which was held to involve the 

corollary of the inalienability of all the principal powers of a State. 

The subordination of all charter rights and privileges to the 

power of eminent domain has been maintained by the Court ever 

since; not even an explicit agreement by the State to forego the exercise of the power will avail against it. 2038 Conversely, the State 

may revoke an improvident grant of public property without recourse to the power of eminent domain, such a grant being inherently beyond the power of the State to make. So when the legislature of Illinois in 1869 devised to the Illinois Central Railroad 

Company, its successors and assigns, the State’s right and title to 

nearly a thousand acres of submerged land under Lake Michigan 

along the harbor front of Chicago, and four years later sought to 

repeal the grant, the Court, a four-to-three decision, sustained an 

action by the State to recover the lands in question. Said Justice 

Field, speaking for the majority: ‘‘Such abdication is not consistent 

with the exercise of that trust which requires the government of 

the State to preserve such waters for the use of public. The trust 

devolving upon the State for the public, and which can only be discharged by the management and control of property in which the 

public has an interest, cannot be relinquished by a transfer of the 

property. . . . Any grant of the kind is necessarily revocable, and the 

exercise of the trust by which the property was held by the State 

can be resumed at any time.’’ 2039

On the other hand, repeated endeavors to subject tax exemptions to the doctrine of inalienability, though at times supported by 

powerful minorities on the Bench, have failed. 2040 As recently as 

January, 1952, the Court ruled that the Georgia Railway Company 

was entitled to seek an injunction in the federal courts against an 

attempt by Georgia’s Revenue Commission to compel it to pay ad 

valorem taxes contrary to the terms of its special charter issued in 

ART. I—LEGISLATIVE DEPARTMENT 407

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2041Georgia R.R. v. Redwine, 342 U.S. 299, 305–306 (1952). The Court distinguished In re Ayers, 123 U.S. 443 (1887) on the ground that the action there was 

barred ‘‘as one in substance directed at the State merely to obtain specific performance of a contract with the State.’’ 342 U.S. at 305. 2042 101 U.S. 814 (1880). 2043 101 U.S. at 820–21. 2044 Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746 (1884). 2045 New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885). 

1833. In answer to the argument that this was a suit contrary to 

the Eleventh Amendment, the Court declared that the immunity 

from federal jurisdiction created by the Amendment ‘‘does not extend to individuals who act as officers without constitutional authority.’’ 2041

The leading case involving the police power is Stone v. Mississippi. 2042 In 1867, the legislature of Mississippi chartered a company to which it expressly granted the power to conduct a lottery. 

Two years later, the State adopted a new Constitution which contained a provision forbidding lotteries, and a year later the legislature passed an act to put this provision into effect. In upholding 

this act and the constitutional provision on which it was based, the 

Court said: ‘‘The power of governing is a trust committed by the 

people to the government, no part of which can be granted away. 

The people, in their sovereign capacity, have established their 

agencies for the preservation of the public health and the public 

morals, and the protection of public and private rights,’’ and these 

agencies can neither give away nor sell their discretion. All that 

one can get by a charter permitting the business of conducting a 

lottery ‘‘is suspension of certain governmental rights in his favor, 

subject to withdrawal at will.’’ 2043

The Court shortly afterward applied the same reasoning in a 

case in which was challenged the right of Louisiana to invade the 

exclusive privilege of a corporation engaged in the slaughter of cattle in New Orleans by granting another company the right to engage in the same business. Although the State did not offer to compensate the older company for the lost monopoly, its action was 

sustained on the ground that it had been taken in the interest of 

the public health. 2044 When, however, the City of New Orleans, in 

reliance on this precedent, sought to repeal an exclusive franchise 

which it had granted a company for fifty years to supply gas to its 

inhabitants, the Court interposed its veto, explaining that in this 

instance neither the public health, the public morals, nor the public 

safety was involved. 2045

Later decisions, nonetheless, apply the principle of inalienability broadly. To quote from one: ‘‘It is settled that neither the 

‘contract’ clause nor the ‘due process’ clause has the effect of overVerDate Aug<04>2004 15:31 Sep 14, 2004 Jkt 077500 PO 00000 Frm 00345 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
408 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2046 Atlantic Coast Line R.R. v. City of Goldsboro, 232 U.S. 548, 558 (1914). See

also Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915); Pennsylvania Hospital 

v. Philadelphia, 245 U.S. 20 (1917); where the police power and eminent domain are 

treated on the same basis in respect of inalienability; Wabash R.R. v. Defiance, 167 

U.S. 88, 97 (1897); Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265 (1908). 2047Morley v. Lake Shore Ry., 146 U.S. 162 (1892); New Orleans v. New Orleans 

Water-Works Co., 142 U.S. 79 (1891); Missouri & Ark. L. & M. Co. v. Sebastian 

County, 249 U.S. 170 (1919). But cf. Livingston’s Lessee v. Moore, 32 U.S. (7 Pet.) 

469, 549 (1833); and Garrison v. New York, 88 U.S. (21 Wall.) 196, 203 (1875), suggesting that a different view was earlier entertained in the case of judgments in actions of debt. 2048Maynard v. Hill, 125 U.S. 190 (1888); Dartmouth College v. Woodward, 17 

U.S. (4 Wheat.) 518, 629 (1819). Cf. Andrews v. Andrews, 188 U.S. 14 (1903). The 

question whether a wife’s rights in the community property under the laws of California were of a contractual nature was raised but not determined in Moffit v. Kelly, 

218 U.S. 400 (1910). 2049 New Orleans v. N.O. Water Works Co., 142 U.S. 79 (1891); Zane v. Hamilton County, 189 U.S. 370, 381 (1903). 

riding the power to the State to establish all regulations that are 

reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by 

express grant; and all contract and property rights are held subject 

to its fair exercise.’’ 2046

It would scarcely suffice today for a company to rely upon its 

charter privileges or upon special concessions from a State in resisting the application to it of measures alleged to have been enacted under the police power thereof; if this claim is sustained, the 

obligation of the contract clause will not avail, and if it is not, the 

due process of law clause of the Fourteenth Amendment will furnish a sufficient reliance. That is to say, the discrepancy that once 

existed between the Court’s theory of an overriding police power in 

these two adjoining fields of constitutional law is today apparently 

at an end. Indeed, there is usually no sound reason why rights 

based on public grant should be regarded as more sacrosanct than 

rights that involve the same subject matter but are of different provenience.

Private Contracts.—The term ‘‘private contract’’ is, naturally, 

not all-inclusive. A judgment, though granted in favor of a creditor, 

is not a contract in the sense of the Constitution, 2047 nor is marriage. 2048 And whether a particular agreement is a valid contract 

is a question for the courts, and finally for the Supreme Court, 

when the protection of the contract clause is invoked. 2049

The question of the nature and source of the obligation of a 

contract, which went by default in Fletcher v. Peck and the Dartmouth College case, with such vastly important consequences, had 

eventually to be met and answered by the Court in connection with 

ART. I—LEGISLATIVE DEPARTMENT 409

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2050 17 U.S. (4 Wheat.) 122 (1819). 2051 25 U.S. (12 Wheat.) 213 (1827). 2052 25 U.S. at 353–54. 

private contracts. The first case involving such a contract to reach 

the Supreme Court was Sturges v. Crowninshield, 2050 in which a 

debtor sought escape behind a state insolvency act of later date 

than his note. The act was held inoperative, but whether this was 

because of its retroactivity in this particular case or for the broader 

reason that it assumed to excuse debtors from their promises was 

not at the time made clear. As noted earlier, Chief Justice Marshall’s definition on this occasion of the obligation of a contract as 

the law which binds the parties to perform their undertakings was 

not free from ambiguity, owing to the uncertain connotation of the 

term law. 

These obscurities were finally cleared up for most cases in 

Ogden v. Saunders, 2051 in which the temporal relation of the statute and the contract involved was exactly reversed—the former 

antedating the latter. Marshall contended, but unsuccessfully, that 

the statute was void, inasmuch as it purported to release the debtor from that original, intrinsic obligation which always attaches 

under natural law to the acts of free agents. ‘‘When,’’ he wrote, ‘‘we 

advert to the course of reading generally pursued by American 

statesmen in early life, we must suppose that the framers of our 

Constitution were intimately acquainted with the writings of those 

wise and learned men whose treatises on the laws of nature and 

nations have guided public opinion on the subjects of obligation and 

contracts,’’ and that they took their views on these subjects from 

those sources. He also posed the question of what would happen to 

the obligation of contracts clause if States might pass acts declaring that all contracts made subsequently thereto should be subject 

to legislative control. 2052

For the first and only time, a majority of the Court abandoned 

the Chief Justice’s leadership. Speaking by Justice Washington, it 

held that the obligation of private contracts is derived from the municipal law—state statutes and judicial decisions—and that the inhibition of Article I, § 10, is confined to legislative acts made after 

the contracts affected by them, subject to the following exception. 

By a curiously complicated line of reasoning, it was also held in the 

same case that when the creditor is a nonresident, then a State by 

an insolvency law may not alter the former’s rights under a contract, albeit one of later date. 

With the proposition established that the obligation of a private contract comes from the municipal law in existence when the 

contract is made, a further question presents itself, namely, what 

410 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2053 United States ex rel. Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 552 

(1867). 2054 42 U.S. (1 How.) 311 (1843). 

part of the municipal law is referred to? No doubt, the law which 

determines the validity of the contract itself is a part of such law. 

Also part of such law is the law which interprets the terms used 

in the contract, or which supplies certain terms when others are 

used, as for instance, constitutional provisions or statutes which 

determine what is ‘‘legal tender’’ for the payment of debts, or judicial decisions which construe the term ‘‘for value received’’ as used 

in a promissory note, and so on. In short, any law which at the 

time of the making of a contract goes to measure the rights and 

duties of the parties to it in relation to each other enters into its 

obligation.

Remedy a Part of the Private Obligation.—Suppose, however, that one of the parties to a contract fails to live up to his obligation as thus determined. The contract itself may now be regarded 

as at an end, but the injured party, nevertheless, has a new set of 

rights in its stead, those which are furnished him by the remedial 

law, including the law of procedure. In the case of a mortgage, he 

may foreclose; in the case of a promissory note, he may sue; and 

in certain cases, he may demand specific performance. Hence the 

further question arises, whether this remedial law is to be considered a part of the law supplying the obligation of contracts. Originally, the predominating opinion was negative, since as we have 

just seen, this law does not really come into operation until the 

contract has been broken. Yet it is obvious that the sanction which 

this law lends to contracts is extremely important—indeed, indispensable. In due course it became the accepted doctrine that that 

part of the law which supplies one party to a contract with a remedy if the other party does not live up to his agreement, as authoritatively interpreted, entered into the ‘‘obligation of contracts’’ in the 

constitutional sense of this term, and so might not be altered to the 

material weakening of existing contracts. In the Court’s own words: 

‘‘Nothing can be more material to the obligation than the means of 

enforcement. Without the remedy the contract may, indeed, in the 

sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their 

fulfillment wholly upon the will of the individual. The ideas of validity and remedy are inseparable . . .’’ 2053

This rule was first definitely announced in 1843 in the case of 

Bronson v. Kinzie. 2054 Here, an Illinois mortgage giving the mortgagee an unrestricted power of sale in case of the mortgagor’s default was involved, along with a later act of the legislature that reVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00348 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 411

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2055 43 U.S. (2 How.) 608 (1844). 2056Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439 (1903); City & Lake 

R.R. v. New Orleans, 157 U.S. 219 (1895). 2057 Antoni v. Greenhow, 107 U.S. 769 (1883). 2058The right was upheld in Mason v. Haile, 25 U.S. (12 Wheat.) 370 (1827), 

and again in Penniman’s Case, 103 U.S. 714 (1881). 2059McGahey v. Virginia, 135 U.S. 662 (1890). 2060Louisiana v. New Orleans, 102 U.S. 203 (1880). 2061 United States ex rel. Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 554 

(1867). 2062 Antoni v. Greenhow, 107 U.S. 769, 775 (1883). Illustrations of changes in 

remedies, which have been sustained, may be seen in the following cases: Jackson 

v. Lamphire, 28 U.S. (3 Pet.) 280 (1830); Hawkins v. Barney’s Lessee, 30 U.S. (5 

Pet.) 457 (1831); Crawford v. Branch Bank of Mobile, 48 U.S. (7 How.) 279 (1849); 

Curtis v. Whitney, 80 U.S. (13 Wall.) 68 (1872); Railroad Co. v. Hecht, 95 U.S. 168 

(1877); Terry v. Anderson, 95 U.S. 628 (1877); Tennessee v. Sneed, 96 U.S. 69 

(1877); South Carolina v. Gaillard, 101 U.S. 433 (1880); Louisiana v. New Orleans, 

102 U.S. 203 (1880); Connecticut Mut. Life Ins. Co. v. Cushman, 108 U.S. 51 (1883); 

Vance v. Vance, 108 U.S. 514 (1883); Gilfillan v. Union Canal Co., 109 U.S. 401 

(1883); Hill v. Merchant’s Ins. Co., 134 U.S. 515 (1890); City & Lake R.R. v. New 

Orleans, 157 U.S. 219 (1895); Red River Valley Bank v. Craig, 181 U.S. 548 (1901); 

Wilson v. Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. v. Oshkosh, 187 

quired mortgaged premises to be sold for not less than two-thirds 

of the appraised value and allowed the mortgagor a year after the 

sale to redeem them. It was held that the statute, in altering the 

preexisting remedies to such an extent, violated the constitutional 

prohibition and hence was void. The year following a like ruling 

was made in the case of McCracken v. Hayward, 2055 as to a statutory provision that personal property should not be sold under execution for less than two-thirds of its appraised value. 

But the rule illustrated by these cases does not signify that a 

State may make no changes in its remedial or procedural law that 

affect existing contracts. ‘‘Provided,’’ the Court has said, ‘‘a substantial or efficacious remedy remains or is given, by means of 

which a party can enforce his rights under the contract, the Legislature may modify or change existing remedies or prescribe new 

modes of procedure.’’ 2056 Thus, States are constantly remodelling 

their judicial systems and modes of practice unembarrassed by the 

obligation of contracts clause. 2057 The right of a State to abolish 

imprisonment for debt was early asserted. 2058 Again, the right of 

a State to shorten the time for the bringing of actions has been affirmed even as to existing causes of action, but with the proviso 

added that a reasonable time must be left for the bringing of such 

actions. 2059 On the other hand, a statute which withdrew the judicial power to enforce satisfaction of a certain class of judgments by 

mandamus was held invalid. 2060 In the words of the Court: ‘‘Every 

case must be determined upon its own circumstances;’’ 2061 and it 

later added: ‘‘In all such cases the question becomes . . . one of reasonableness, and of that the legislature is primarily the judge.’’ 2062

412 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

U.S. 437 (1903); Waggoner v. Flack, 188 U.S. 595 (1903); Bernheimer v. Converse, 

206 U.S. 516 (1907); Henley v. Myers, 215 U.S. 373 (1910); Selig v. Hamilton, 234 

U.S. 652 (1914); Security Bank v. California, 263 U.S. 282 (1923); United States 

Mortgage Co. v. Matthews, 293 U.S. 232 (1934); McGee v. International Life Ins. 

Co., 355 U.S. 220 (1957). 

Compare the following cases, where changes in remedies were deemed to be of 

such character as to interfere with substantial rights: Wilmington & Weldon R.R. 

v. King, 91 U.S. 3 (1875); Memphis v. United States, 97 U.S. 293 (1878); Virginia 

Coupon Cases (Poindexter v. Greenhow), 114 U.S. 269, 270, 298, 299 (1885); 

Effinger v. Kenney, 115 U.S. 566 (1885); Fisk v. Jefferson Police Jury, 116 U.S. 131 

(1885); Bradley v. Lightcap, 195 U.S. 1 (1904); Bank of Minden v. Clement, 256 U.S. 

126 (1921). 2063 71 U.S. (4 Wall.) 535, 554–555 (1867). 2064See also Nelson v. St. Martin’s Parish, 111 U.S. 716 (1884). 2065Mobile v. Watson, 116 U.S. 289 (1886); Graham v. Folsom, 200 U.S. 248 

(1906). 2066 Heine v. Levee Commissioners, 86 U.S. (19 Wall.) 655 (1874). Cf., Virginia 

v. West Virginia, 246 U.S. 565 (1918). 

There is one class of cases resulting from the doctrine that the 

law of remedy constitutes a part of the obligation of a contract to 

which a special word is due. This comprises cases in which the contracts involved were municipal bonds. While a city is from one 

point of view but an emanation from the government’s sovereignty 

and an agent thereof, when it borrows money it is held to be acting 

in a corporate or private capacity and so to be suable on its contracts. Furthermore, as was held in the leading case of United

States ex rel. Von Hoffman v. Quincy, 2063 ‘‘where a State has authorized a municipal corporation to contract and to exercise the 

power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied.’’ In this case the Court issued a mandamus compelling the city officials to levy taxes for the satisfaction of a judgment on its bonds in accordance with the law as it stood when the 

bonds were issued. 2064 Nor may a State by dividing an indebted 

municipality among others enable it to escape its obligations. The 

debt follows the territory and the duty of assessing and collecting 

taxes to satisfy it devolves upon the succeeding corporations and 

their officers. 2065 But where a municipal organization has ceased 

practically to exist through the vacation of its offices, and the government’s function is exercised once more by the State directly, the 

Court has thus far found itself powerless to frustrate a program of 

repudiation. 2066 However, there is no reason why the State should 

enact the role of particeps criminis in an attempt to relieve its municipalities of the obligation to meet their honest debts. Thus, in 

1931, during the Great Depression, New Jersey created a Municipal Finance Commission with power to assume control over its insolvent municipalities. To the complaint of certain bondholders that 

this legislation impaired the contract obligations of their debtors, 

ART. I—LEGISLATIVE DEPARTMENT 413

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2067Faitoute Co. v. City of Asbury Park, 316 U.S. 502, 510 (1942). Alluding to 

the ineffectiveness of purely judicial remedies against defaulting municipalities, Justice Frankfurter says: ‘‘For there is no remedy when resort is had to ‘devices and 

contrivances’ to nullify the taxing power which can be carried out only through authorized officials.’’ See Rees v. City of Watertown, 86 U.S. (19 Wall.) 107, 124 (1874). 

And so we have had the spectacle of taxing officials resigning from office in order 

to frustrate tax levies through mandamus, and officials running on a platform of 

willingness to go to jail rather than to enforce a tax levy (see Raymond, State and 

Municipal Bonds, 342–343), and evasion of service by tax collectors, thus making 

impotent a court’s mandate. Yost v. Dallas County, 236 U.S. 50, 57 (1915).′′ Id. at 

511.2068Myers v. Irwin, 2 S. & R. (Pa.), 367, 372 (1816); see, to the same effect, 

Lindenmuller v. The People, 33 Barb. (N.Y.) 548 (1861); Brown v. Penobscot Bank, 

8 Mass. 445 (1812). 

the Court, speaking by Justice Frankfurter, pointed out that the 

practical value of an unsecured claim against a city is ‘‘the effectiveness of the city’s taxing power,’’ which the legislation under review was designed to conserve. 2067

Private Contracts and the Police Power.—The increasing 

subjection of public grants to the police power of the States has 

been previously pointed out. That purely private contracts should 

be in any stronger situation in this respect obviously would be 

anomalous in the extreme. In point of fact, the ability of private 

parties to curtail governmental authority by the easy device of contracting with one another is, with an exception to be noted, even 

less than that of the State to tie its own hands by contracting away 

its own powers. So, when it was contended in an early Pennsylvania case that an act prohibiting the issuance of notes by unincorporated banking associations was violative of the obligation of contracts clause because of its effect upon certain existing contracts of 

members of such association, the state Supreme Court answered: 

‘‘But it is said, that the members had formed a contract between 

themselves, which would be dissolved by the stoppage of their business. And what then? Is that such a violation of contracts as is prohibited by the Constitution of the United States? Consider to what 

such a construction would lead. Let us suppose, that in one of the 

States there is no law against gaming, cock-fighting, horse-racing 

or public masquerades, and that companies should be formed for 

the purpose of carrying on these practices... .’’ Would the legislature then be powerless to prohibit them? The answer returned, of 

course, was no. 2068

The prevailing doctrine was stated by the Supreme Court of 

the United States in the following words: ‘‘It is the settled law of 

this court that the interdiction of statutes impairing the obligation 

of contracts does not prevent the State from exercising such powers 

as are vested in it for the promotion of the common weal, or are 

necessary for the general good of the public, though contracts preVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00351 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
414 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2069Manigault v. Springs, 199 U.S. 473, 480 (1905). 2070 Jackson v. Lamphire, 28 U.S. (3 Pet.) 280 (1830). See also Phalen v. Virginia, 49 U.S. (8 How.) 163 (1850). 2071Stone v. Mississippi, 101 U.S. 814 (1880). 2072 Beer Co. v. Massachusetts, 97 U.S. 25 (1878). 2073 New York Cent. R.R. v. White, 243 U.S. 188 (1917). In this and the preceding two cases the legislative act involved did not except from its operation existing contracts. 2074Manigault v. Springs, 199 U.S. 473 (1905). 2075Portland Ry. v. Oregon R.R. Comm’n, 229 U.S. 397 (1913). 2076Midland Co. v. Kansas City Power Co., 300 U.S. 109 (1937). 2077 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908). 

viously entered into between individuals may thereby be affected. . . . In other words, that parties by entering into contracts 

may not estop the legislature from enacting laws intended for the 

public good.’’ 2069

So, in an early case, we find a state recording act upheld as 

applying to deeds dated before the passage of the act. 2070 Later

cases have brought the police power in its more customary phases 

into contact with private as well as with public contracts. Lottery 

tickets, valid when issued, were necessarily invalidated by legislation prohibiting the lottery business; 2071 contracts for the sale of 

beer, valid when entered into, were similarly nullified by a state 

prohibition law; 2072 and contracts of employment were modified by 

later laws regarding the liability of employers and workmen’s compensation. 2073 Likewise, a contract between plaintiff and defendant 

did not prevent the State from making the latter a concession 

which rendered the contract worthless; 2074 nor did a contract as to 

rates between two railway companies prevent the State from imposing different rates; 2075 nor did a contract between a public utility company and a customer protect the rates agreed upon from 

being superseded by those fixed by the State. 2076 Similarly, a contract for the conveyance of water beyond the limits of a State did 

not prevent the State from prohibiting such conveyance. 2077

But the most striking exertions of the police power touching 

private contracts, as well as other private interests within recent 

years, have been evoked by war and economic depression. Thus, in 

World War I, the State of New York enacted a statute which, declaring that a public emergency existed, forbade the enforcement of 

covenants for the surrender of the possession of premises on the expiration of leases, and wholly deprived for a period owners of dwellings, including apartment and tenement houses, within the City of 

New York and contiguous counties, of possessory remedies for the 

eviction from their premises of tenants in possession when the law 

took effect, providing the latter were able and willing to pay a reasonable rent. In answer to objections leveled against this legislation 

ART. I—LEGISLATIVE DEPARTMENT 415

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2078Marcus Brown Co. v. Feldman, 256 U.S. 170, 198 (1921), followed in Levy 

Leasing Co. v. Siegel, 258 U.S. 242 (1922). 2079 Chastleton Corp. v. Sinclair, 264 U.S. 543, 547–548 (1924). 2080 290 U.S. 398 (1934). 2081 290 U.S. at 442, 444. See also Veix v. Sixth Ward Ass’n, 310 U.S. 32 (1940), 

in which was sustained a New Jersey statute amending in view of the Depression 

the law governing building and loan associations. The authority of the State to safeguard the vital interests of the people, said Justice Reed, ‘‘extends to economic needs 

as well.’’ Id. at 39. In Lincoln Federal Labor Union v. Northwestern Iron & Metal 

Co., 335 U.S. 525, 531–532 (1949), the Court dismissed out-of-hand a suggestion 

that a state law outlawing union security agreements was an invalid impairment 

of existing contracts, citing Blaisdell and Veix. 

on the basis of the obligation of contracts clause, the Court said: 

‘‘But contracts are made subject to this exercise of the power of the 

State when otherwise justified, as we have held this to be.’’ 2078 In

a subsequent case, however, the Court added that, while the declaration by the legislature of a justifying emergency was entitled 

to great respect, it was not conclusive; a law ‘‘depending upon the 

existence of an emergency or other certain state of facts to uphold 

it may cease to operate if the emergency ceases or the facts 

change,’’ and whether they have changed was always open to judicial inquiry. 2079

Summing up the result of the cases above referred to, Chief 

Justice Hughes, speaking for the Court in Home Building & Loan 

Ass’n v. Blaisdell, 2080 remarked in 1934: ‘‘It is manifest from this 

review of our decisions that there has been a growing appreciation 

of public needs and of the necessity of finding ground for a rational 

compromise between individual rights and public welfare. The settlement and consequent contraction of the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual 

opportunity. Where, in earlier days, it was thought that only the 

concerns of individuals or of classes were involved, and that those 

of the State itself were touched only remotely, it has later been 

found that the fundamental interests of the State are directly affected; and that the question is no longer merely that of one party 

to a contract as against another, but of the use of reasonable 

means to safeguard the economic structure upon which the good of 

all depends. . . . The principle of this development is . . . that the reservation of the reasonable exercise of the protective power of the 

States is read into all contracts . . .’’ 2081

Evaluation of the Clause Today.—It should not be inferred 

that the obligation of contracts clause is today totally moribund. 

Even prior to the most recent decisions, it still furnished the basis 

416 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2082See especially Edwards v. Kearzey, 96 U.S. 595 (1878); Barnitz v. Beverly, 

163 U.S. 118 (1896). 2083 290 U.S. 398 (1934). 2084W. B. Worthen Co. v. Thomas, 292 U.S. 426 (1934); W. B. Worthen Co. v. 

Kavanaugh, 295 U.S. 56 (1935). 

for some degree of judicial review as to the substantiality of the 

factual justification of a professed exercise by a state legislature of 

its police power, and in the case of legislation affecting the remedial rights of creditors, it still affords a solid and palpable barrier 

against legislative erosion. Nor is this surprising in view of the fact 

that, as we have seen, such rights were foremost in the minds of 

the framers of the clause. The Court’s attitude toward insolvency 

laws, redemption laws, exemption laws, appraisement laws and the 

like, has always been that they may not be given retroactive operation, 2082 and the general lesson of these earlier cases is confirmed 

by the Court’s decisions between 1934 and 1945 in certain cases involving state moratorium statutes. In Home Building & Loan Ass’n 

v. Blaisdell, 2083 the leading case, a closely divided Court sustained 

the Minnesota Moratorium Act of April 18, 1933, which, reciting 

the existence of a severe financial and economic depression for several years and the frequent occurrence of mortgage foreclosure 

sales for inadequate prices, and asserting that these conditions had 

created an economic emergency calling for the exercise of the 

State’s police power, authorized its courts to extend the period for 

redemption from foreclosure sales for such additional time as they 

might deem just and equitable, although in no event beyond May 

1, 1935. 

The act also left the mortgagor in possession during the period 

of extension, subject to the requirement that he pay a reasonable 

rental for the property as fixed by the court. Contemporaneously, 

however, less carefully drawn statutes from Missouri and Arkansas, acts which were not as considerate of creditor’s rights, were set 

aside as violative of the contracts clause. 2084 ‘‘A State is free to regulate the procedure in its courts even with reference to contracts 

already made,’’ said Justice Cardozo for the Court, ‘‘and moderate 

extensions of the time for pleading or for trial will ordinarily fall 

within the power so reserved. A different situation is presented 

when extensions are so piled up as to make the remedy a shadow. . . . What controls our judgment at such times is the underlying 

reality rather than the form or label. The changes of remedy now 

challenged as invalid are to be viewed in combination, with the cumulative significance that each imparts to all. So viewed they are 

seen to be an oppressive and unnecessary destruction of nearly all 

the incidents that give attractiveness and value to collateral secuVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00354 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
ART. I—LEGISLATIVE DEPARTMENT 417

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

2085 295 U.S. at 62. 2086 East New York Bank v. Hahn, 326 U.S. 230, 235 (1945), quoting New York 

Legislative Document (1942), No. 45, p. 25. 2087 Honeyman v. Jacobs, 306 U.S. 539 (1939). See also Gelfert v. National City 

Bank, 313 U.S. 221 (1941). 2088 313 U.S. at 233–34. 2089 United States Trust Co. v. New Jersey, 431 U.S. 1, 16 (1977). ‘‘It is not a 

dead letter.’’ Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978). A 

majority of the Court seems fully committed to using the clause. Only Justices Brennan, White, and Marshall dissented in both cases. Chief Justice Burger and Justices 

Rehnquist and Stevens joined both opinions of the Court. Of the three remaining 

Justices, who did not participate in one or the other case, Justice Blackmun wrote 

the opinion in United States Trust while Justice Stewart wrote the opinion in 

Spannaus and Justice Powell joined it. 2090 United States Trust involved a repeal of a covenant statutorily enacted to 

encourage persons to purchase New York-New Jersey Port Authority bonds by limiting the Authority’s ability to subsidize rail passenger transportation. Spannaus involved a statute requiring prescribed employers who had a qualified pension plan 

to provide funds sufficient to cover full pensions for all employees who had worked 

at least 10 years if the employer either terminated the plan or closed his offices in 

rity.’’ 2085 On the other hand, in the most recent of this category of 

cases, the Court gave its approval to an extension by the State of 

New York of its moratorium legislation. While recognizing that 

business conditions had improved, the Court was of the opinion 

that there was reason to believe that ‘‘‘the sudden termination of 

the legislation which has dammed up normal liquidation of these 

mortgages for more than eight years might well result in an emergency more acute than that which the original legislation was intended to alleviate.’’’ 2086

And meantime the Court had sustained legislation of the State 

of New York under which a mortgagee of real property was denied 

a deficiency judgment in a foreclosure suit where the state court 

found that the value of the property purchased by the mortgagee 

at the foreclosure sale was equal to the debt secured by the mortgage. 2087 ‘‘Mortgagees,’’ the Court said, ‘‘are constitutionally entitled to no more than payment in full. . . . To hold that mortgagees 

are entitled under the contract clause to retain the advantages of 

a forced sale would be to dignify into a constitutionally protected 

property right their chance to get more than the amount of their 

contracts. . . . The contract clause does not protect such a strategical, procedural advantage.’’ 2088

More important, the Court has been at pains most recently to 

reassert the vitality of the clause, although one may wonder whether application of the clause will be more than episodic. 

‘‘[T]he Contract Clause remains a part of our written Constitution.’’ 2089 So saying, the Court struck down state legislation in two 

instances, one law involving the government’s own contractual obligation and the other affecting private contracts. 2090 A finding that 

418 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc. 

the State, a law that greatly altered the company’s liabilities under its contractual 

pension plan. 

2091 431 U.S. at 21; 438 U.S. at 244. 

2092 431 U.S. at 22-26; 438 U.S. at 248. 

2093 438 U.S. at 245. 

2094 431 U.S. at 17-21 (the Court was unsure of the value of the interest impaired but deemed it ‘‘an important security provision’’); 438 U.S. 244–47 (statute 

mandated company to recalculate, and in one lump sum, contributions previously 

adequate).

2095 431 U.S. at 25–32 (State could have modified the impairment to achieve its 

purposes without totally abandoning the covenant, though the Court reserved judgment whether lesser impairments would have been constitutional, id. at 30 n.28, 

and it had alternate means to achieve its purposes; the need for mass transportation 

was obvious when covenant was enacted and State could not claim that unforeseen 

circumstances had arisen.) 

a contract has been ‘‘impaired’’ in some way is merely the preliminary step in evaluating the validity of the state action. 2091 But in 

both cases the Court applied a stricter-than-usual scrutiny to the 

statutory action, in the public contracts case precisely because it 

was its own obligation that the State was attempting to avoid and 

in the private contract case, apparently, because the legislation 

was in aid of a ‘‘narrow class.’’ 2092 The approach in any event is 

one of balancing. ‘‘The severity of the impairment measures the 

height of the hurdle the state legislation must clear. Minimal alteration of contractual obligations may end the inquiry at its first 

stage. Severe impairment, on the other hand, will push the inquiry 

to a careful examination of the nature and purpose of the state legislation.’’ 2093 Having determined that a severe impairment had resulted in both cases, 2094 the Court moved on to assess the justification for the state action. In United States Trust, the test utilized 

by the Court was that an impairment would be upheld only if it 

were ‘‘necessary’’ and ‘‘reasonable’’ to serve an important public 

purpose. But the two terms were given somewhat restrictive meanings. Necessity is shown only when the State’s objectives could not 

have been achieved through less dramatic modifications of the contract; reasonableness is a function of the extent to which alteration 

of the contract was prompted by circumstances unforeseen at the 

time of its formation. The repeal of the covenant in issue was found 

to fail both prongs of the test. 2095 In Spannaus, the Court drew 

from its prior cases four standards: did the law deal with a broad 

generalized economic or social problem, did it operate in an area 

already subject to state regulation at the time the contractual obligations were entered into, did it effect simply a temporary alteration of the contractual relationship, and did the law operate upon 

a broad class of affected individuals or concerns. The Court found 

ART. I—LEGISLATIVE DEPARTMENT 419

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports 

2096 438 U.S. at 244–51. See also Exxon Corp. v. Eagerton, 462 U.S. 176 (1983) 

(emphasizing the first but relying on all but the third of these tests in upholding 

a prohibition on pass-through of an oil and gas severance tax). 2097 438 U.S. at 242 (emphasis by Court). 2098 Hooven & Allison Co. v. Evatt, 324 U.S. 652, 673 (1945). Goods brought 

from another State are not within the clause. Woodruff v. Parham, 75 U.S. (8 Wall.) 

123 (1869). Justice Thomas has called recently for reconsideration of Woodruff and 

the possible application of the clause to interstate imports and exports. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997) (dissenting). 2099 Cornell v. Coyne, 192 U.S. 418, 427 (1904). 

that the challenged law did not possess any of these attributes and 

thus struck it down. 2096

Whether these two cases portend an active judicial review of 

economic regulatory activities, in contrast to the extreme deference 

shown such legislation under the due process and equal protection 

clauses, is problematical. Both cases contain language emphasizing 

the breadth of the police powers of government that may be used 

to further the public interest and admitting limited judicial scrutiny. Nevertheless, ‘‘[i]f the Contract Clause is to retain any meaning at all . . . it must be understood to impose some limits upon the 

power of a State to abridge existing contractual relationships, even 

in the exercise of its otherwise legitimate police power.’’ 2097

Clause 2. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except 

what may be absolutely necessary for executing it’s inspection 

Laws: and the net Produce of all Duties and Imposts, laid by 

any State on Imports or Exports, shall be for the Use of the 

Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. 

Duties on Exports or Imports 

Scope

Only articles imported from or exported to a foreign country, 

or ‘‘a place over which the Constitution has not extended its commands with respect to imports and their taxation,’’ are comprehended by the terms ‘‘imports’’ and ‘‘exports.’’ 2098 With respect 

to exports, the exemption from taxation ‘‘attaches to the export and 

not to the article before its exportation,’’ 2099 requiring an essentially factual inquiry into whether there have been acts of movement toward a final destination constituting sufficient entrance 

420 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports 

2100 Richfield Oil Corp. v. State Bd. of Equalization, 329 U.S. 69 (1946); Empress 

Siderurgica v. County of Merced, 337 U.S. 154 (1947); Kosydar v. National Cash 

Register Co., 417 U.S. 62 (1974). 2101 25 U.S. (12 Wheat.) 419, 441–442 (1827). 2102May v. New Orleans, 178 U.S. 496, 502 (1900). 2103 178 U.S. at 501; Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928); 

McGoldrick v. Gulf Oil Corp., 309 U.S. 414 (1940). 2104Low v. Austin, 80 U.S. (13 Wall.) 29 (1872); May v. New Orleans, 178 U.S. 

496 (1900). 2105 Hooven & Allison Co. v. Evatt, 324 U.S. 652, 667 (1945). But see Limbach

v. Hooven & Allison Co., 466 U.S. 353 (1984) (overruling the earlier decision). 2106 324 U.S, at 664. 2107 Canton R.R. v. Rogan, 340 U.S. 511 (1951). 

into the export stream as to invoke the protection of the clause. 2100

To determine how long imported wares remain under the protection of this clause, the Supreme Court enunciated the original 

package doctrine in the leading case of Brown v. Maryland. ‘‘When 

the importer has so acted upon the thing imported,’’ wrote Chief 

Justice Marshall, ‘‘that it has become incorporated and mixed up 

with the mass of property in the country, it has, perhaps, lost its 

distinctive character as an import, and has become subject to the 

taxing power of the State; but while remaining the property of the 

importer, in his warehouse, in the original form or package in 

which it was imported, a tax upon it is too plainly a duty on imports, to escape the prohibition in the Constitution.’’ 2101 A box, 

case, or bale in which separate parcels of goods have been placed 

by the foreign seller is regarded as the original package, and upon 

the opening of such container for the purpose of using the separate 

parcels, or of exposing them for sale, each loses its character as an 

import and becomes subject to taxation as a part of the general 

mass of property in the State. 2102 Imports for manufacture cease 

to be such when the intended processing takes place, 2103 or when 

the original packages are broken. 2104 Where a manufacturer imports merchandise and stores it in his warehouse in the original 

packages, that merchandise does not lose its quality as an import, 

at least so long as it is not required to meet such immediate 

needs. 2105 The purchaser of imported goods is deemed to be the importer if he was the efficient cause of the importation, whether the 

title to the goods vested in him at the time of shipment, or after 

its arrival in this country. 2106 A state franchise tax measured by 

properly apportioned gross receipts may be imposed upon a railroad company in respect of the company’s receipts for services in 

handling imports and exports at its marine terminal. 2107

Privilege Taxes 

A state law requiring importers to take out a license to sell imported goods amounts to an indirect tax on imports and hence is 

ART. I—LEGISLATIVE DEPARTMENT 421

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports 

2108 Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 447 (1827). 2109 Anglo-Chilean Corp. v. Alabama, 288 U.S. 218 (1933). 2110Low v. Austin, 80 U.S. (13 Wall.) 29, 33 (1872). 2111 Cook v. Pennsylvania, 97 U.S. 566, 573 (1878). 2112 Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917). 2113 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 313 (1851). 2114Waring v. The Mayor, 75 U.S. (8 Wall.) 110, 122 (1869). See also Pervear

v. Massachusetts. 72 U.S. (5 Wall.) 475, 478 (1867); Schollenberger v. Pennsylvania, 

171 U.S. 1, 24 (1898). 2115Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928). 2116 Nathan v. Louisiana, 49 U.S. (8 How.) 73, 81 (1850). 2117Mager v. Grima, 49 U.S. (8 How.) 490 (1850). 2118Michelin Tire Corp. v. Wages, 423 U.S. 276 (1976), overruling Low v. Austin, 80 U.S. (13 Wall.) 29 (1872), expressly, and, necessarily, Hooven & Allison Co. 

v. Evatt, 324 U.S. 652 (1945), among others. The latter case was expressly overruled 

in Limbach v. Hooven & Allison Co., 466 U.S. 353 (1984), involving the same tax 

and the same parties. In Youngstown Sheet & Tube Co. v. Bowers, 358 U.S. 534 

(1959), property taxes were sustained on the basis that the materials taxed had lost 

their character as imports. On exports, see Selliger v. Kentucky, 213 U.S. 200 (1909) 

(property tax levied on warehouse receipts for whiskey exported to Germany invalid). See also Itel Containers Int’l Corp. v. Huddleston, 507 U.S. 60, 76–78 (1993). 

And see id. at 81–82 (Justice Scalia concurring). 2119Michelin Tire Corp. v. Wages, 423 U.S. 276, 290–294 (1976). Accord: R. J. 

Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986) (tax on imported tounconstitutional. 2108 Likewise, a franchise tax upon foreign corporations engaged in importing nitrate and selling it in the original 

packages, 2109 a tax on sales by brokers 2110 and auctioneers 2111 of

imported merchandise in original packages, and a tax on the sale 

of goods in foreign commerce consisting of an annual license fee 

plus a percentage of gross sales, 2112 have been held invalid. On the 

other hand, pilotage fees, 2113 a tax upon the gross sales of a purchaser from the importer, 2114 a license tax upon dealing in fish 

which, through processing, handling, and sale, have lost their distinctive character as imports, 2115 an annual license fee imposed on 

persons engaged in buying and selling foreign bills of exchange, 2116

and a tax upon the right of an alien to receive property as heir, 

legatee, or donee of a deceased person 2117 have been held not to be 

duties on imports or exports. 

Property Taxes 

Overruling a line of prior decisions which it thought misinterpreted the language of Brown v. Maryland, the Court now holds 

that the clause does not prevent a State from levying a nondiscriminatory, ad valorem property tax upon goods that are no longer in 

import transit. 2118 Thus, a company’s inventory of imported tires 

maintained at its wholesale distribution warehouse could be included in the State’s tax upon the entire inventory. The clause does 

not prohibit every ‘‘tax’’ with some impact upon imports or exports 

but reaches rather exactions directed only at imports or exports or 

commercial activity therein as such. 2119

422 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts 

bacco stored for aging in customs-bonded warehouse and destined for domestic manufacture and sale); but cf. Xerox Corp. v. County of Harris, 459 U.S. 145, 154 (1982) 

(similar tax on goods stored in customs-bonded warehouse is preempted ‘‘by Congress’ comprehensive regulation of customs duties;’’ case, however, dealt with goods 

stored for export). 2120 Bowman v. Chicago & Nw. Ry., 125 U.S. 465, 488 (1888). 2121 107 U.S. 38 (1883). 2122 107 U.S. at 55. 2123Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 361 (1898). 2124 Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888). The Twenty-first 

Amendment has had no effect on this principle. Department of Revenue v. James 

B. Beam Distilling Co., 377 U.S. 341 (1964). 

Inspection Laws 

Inspection laws ‘‘are confined to such particulars as, in the estimation of the legislature and according to the customs of trade, 

are deemed necessary to fit the inspected article for the market, by 

giving the purchaser public assurance that the article is in that 

condition, and of that quality, which makes it merchantable and fit 

for use or consumption.’’ 2120 In Turner v. Maryland, 2121 the Court 

listed as recognized elements of inspection laws, the ‘‘quality of the 

article, form, capacity, dimensions, and weight of package, mode of 

putting up, and marking and branding of various kinds . . .’’ 2122 It

sustained as an inspection law a charge for storage and inspection 

imposed upon every hogshead of tobacco grown in the State and intended for export, which the law required to be brought to a state 

warehouse to be inspected and branded. The Court has cited this 

section as a recognition of a general right of the States to pass inspection laws, and to bring within their reach articles of interstate, 

as well as of foreign, commerce. 2123 But on the ground that, ‘‘it has 

never been regarded as within the legitimate scope of inspection 

laws to forbid trade in respect to any known article of commerce, 

irrespective of its condition and quality, merely on account of its intrinsic nature and the injurious consequence of its use or abuse,’’ 

it held that a state law forbidding the importation of intoxicating 

liquors into the State could not be sustained as an inspection 

law. 2124

Clause 3. No State shall, without the Consent of Congress, 

lay any Duty of Tonnage, keep Troops, or Ships of War in time 

of Peace, enter into any Agreement or Compact with another 

State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of 

delay.

ART. I—LEGISLATIVE DEPARTMENT 423

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts 

2125 Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265 (1935); Cannon v. City 

of New Orleans, 87 U.S. (20 Wall.) 577, 581 (1874); Transportation Co. v. Wheeling, 

99 U.S. 273, 283 (1879). 2126Packet Co. v. Keokuk, 95 U.S. 80 (1877); Transportation Co. v. Parkersburg, 

107 U.S. 691 (1883); Ouachita Packet Co. v. Aiken, 121 U.S. 444 (1887). 2127 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 314 (1851); Ex parte 

McNiel, 80 U.S. (13 Wall.) 236 (1872); Inman Steamship Company v. Tinker, 94 

U.S. 238, 243 (1877); Packet Co. v. St. Louis, 100 U.S. 423 (1880); City of Vicksburg 

v. Tobin, 100 U.S. 430 (1880); Packet Co. v. Catlettsburg, 105 U.S. 559 (1882). 2128 Huse v. Glover, 119 U.S. 543, 549 (1886). 2129Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31 (1867). 2130Peete v. Morgan, 86 U.S. (19 Wall.) 581 (1874). 2131Morgan v. Louisiana, 118 U.S. 455, 462 (1886). 2132Wiggins Ferry Co. v. City of East St. Louis, 107 U.S. 365 (1883). See

also Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia 

Steamship Co. v. Pennsylvania, 122 U.S. 326, 338 (1887); Osborne v. City of Mobile, 

83 U.S. (16 Wall.) 479, 481 (1873). 2133 79 U.S. (12 Wall.) 204, 217 (1871). 

Tonnage Duties 

The prohibition against tonnage duties embraces all taxes and 

duties, regardless of their name or form, whether measured by the 

tonnage of the vessel or not, which are in effect charges for the 

privilege of entering, trading in, or lying in a port. 2125 But it does 

not extend to charges made by state authority, even if graduated 

according to tonnage, 2126 for services rendered to the vessel, such 

as pilotage, towage, charges for loading and unloading cargoes, 

wharfage, or storage. 2127 For the purpose of determining wharfage 

charges, it is immaterial whether the wharf was built by the State, 

a municipal corporation, or an individual. Where the wharf was 

owned by a city, the fact that the city realized a profit beyond the 

amount expended did not render the toll objectionable. 2128 The

services of harbor masters for which fees are allowed must be actually rendered, and a law permitting harbor masters or port wardens to impose a fee in all cases is void. 2129 A State may not levy 

a tonnage duty to defray the expenses of its quarantine system, 2130

but it may exact a fixed fee for examination of all vessels passing 

quarantine. 2131 A state license fee for ferrying on a navigable river 

is not a tonnage tax but rather is a proper exercise of the police 

power and the fact that a vessel is enrolled under federal law does 

not exempt it. 2132 In the State Tonnage Tax Cases, 2133 an annual 

tax on steamboats measured by their registered tonnage was held 

invalid despite the contention that it was a valid tax on the steamboat as property. 

Keeping Troops 

This provision contemplates the use of the State’s military 

power to put down an armed insurrection too strong to be conVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00361 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
424 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts 

2134Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849). 2135Presser v. Illinois, 116 U.S. 252 (1886). 2136Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837). 2137 Hinderlider v. La Plata Co., 304 U.S. 92, 104 (1938). 2138Frankfurter and Landis, The Compact Clause of the Constitution—A Study 

in Interstate Adjustments, 34 YALE L.J. 685, 691 (1925). 2139 Article IX. 2140 Article VI. 2141 39 U.S. (14 Pet.) 540 (1840). 

trolled by civil authority, 2134 and the organization and maintenance of an active state militia is not a keeping of troops in time 

of peace within the prohibition of this clause. 2135

Interstate Compacts 

Background of Clause 

Except for the single limitation that the consent of Congress 

must be obtained, the original inherent sovereign rights of the 

States to make compacts with each other was not surrendered 

under the Constitution. 2136 ‘‘The Compact,’’ as the Supreme Court 

has put it, ‘‘adapts to our Union of sovereign States the age-old 

treaty-making power of independent sovereign nations.’’ 2137 In

American history, the compact technique can be traced back to the 

numerous controversies that arose over the ill-defined boundaries 

of the original colonies. These disputes were usually resolved by negotiation, with the resulting agreement subject to approval by the 

Crown. 2138 When the political ties with Britain were broken, the 

Articles of Confederation provided for appeal to Congress in all disputes between two or more States over boundaries or ‘‘any cause 

whatever’’ 2139 and required the approval of Congress for any ‘‘treaty confederation or alliance’’ to which a State should be a party. 2140

The Framers of the Constitution went further. By the first 

clause of this section they laid down an unqualified prohibition 

against ‘‘any treaty, alliance or confederation,’’ and by the third 

clause they required the consent of Congress for ‘‘any agreement or 

compact.’’ The significance of this distinction was pointed out by 

Chief Justice Taney in Holmes v. Jennison. 2141 ‘‘As these words 

(‘agreement or compact’) could not have been idly or superfluously 

used by the framers of the Constitution, they cannot be construed 

to mean the same thing with the word treaty. They evidently mean 

something more, and were designed to make the prohibition more 

comprehensive. . . . The word ‘agreement,’ does not necessarily import and direct any express stipulation; nor is it necessary that it 

should be in writing.’’ 

‘‘If there is a verbal understanding, to which both parties have 

assented, and upon which both are acting, it is an ‘agreement.’ And 

ART. I—LEGISLATIVE DEPARTMENT 425

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts 

2142 39 U.S. at 570, 571, 572. 2143 148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244 

(1900). 2144 United States Steel Corp. v. Multistate Tax Comm’n, 434 U.S. 452 (1978). 

See also New Hampshire v. Maine, 426 U.S. 363 (1976). 2145Frankfurter and Landis, The Compact Clause of the Constitution—A Study 

in Interstate Adjustments, 34 YALE L.J. 685 (1925); F. ZIMMERMAN AND M. WENDELL, INTERSTATE COMPACTS SINCE 1925 (1951); F. ZIMMERMAN AND M. WENDELL, THE LAW AND USE OF INTERSTATE COMPACTS (1961). 2146 48 Stat. 909 (1934). 

the use of all of these terms, ‘treaty,’ ‘agreement,’ ‘compact,’ show 

that it was the intention of the framers of the Constitution to use 

the broadest and most comprehensive terms; and that they anxiously desired to cut off all connection or communication between 

a State and a foreign power; and we shall fail to execute that evident intention, unless we give to the word ‘agreement’ its most extended signification; and so apply it as to prohibit every agreement, 

written or verbal, formal or informal, positive or implied, by the 

mutual understanding of the parties.’’ 2142 But in Virginia v. Tennessee, 2143 decided more than a half century later, the Court shifted position, holding that the unqualified prohibition of compacts 

and agreements between States without the consent of Congress 

did not apply to agreements concerning such minor matters as adjustments of boundaries, which have no tendency to increase the 

political powers of the contracting States or to encroach upon the 

just supremacy of the United States. Adhering to this later understanding of the clause, the Court found no enhancement of state 

power quoad the Federal Government through entry into the 

Multistate Tax Compact and thus sustained the agreement among 

participating States without congressional consent. 2144

Subject Matter of Interstate Compacts 

For many years after the Constitution was adopted, boundary 

disputes continued to predominate as the subject matter of agreements among the States. Since the turn of the twentieth century, 

however, the interstate compact has been used to an increasing extent as an instrument for state cooperation in carrying out affirmative programs for solving common problems. 2145 The execution of 

vast public undertakings, such as the development of the Port of 

New York by the Port Authority created by compact between New 

York and New Jersey, flood control, the prevention of pollution, 

and the conservation and allocation of water supplied by interstate 

streams, are among the objectives accomplished by this means. Another important use of this device was recognized by Congress in 

the act of June 6, 1934, 2146 whereby it consented in advance to 

agreements for the control of crime. The first response to this stimVerDate Apr<14>2004 12:35 Apr 14, 2004 Jkt 077500 PO 00000 Frm 00363 Fmt 8222 Sfmt 8222 C:\CONAN\CON009.SGM PRFM99 PsN: CON009
426 ART. I—LEGISLATIVE DEPARTMENT 

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts 

2147F. ZIMMERMAN AND M. WENDELL, INTERSTATE COMPACTS SINCE 1925 91 

(1951). 2148 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. § 552; 33 U.S.C. §§ 11, 567– 

567b.2149Green v. Biddle, 21 U.S. (8 Wheat.) 1, 85 (1823). 2150 Virginia v. Tennessee, 148 U.S. 503 (1893). 2151 Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871). 2152Wharton v. Wise, 153 U.S. 155, 173 (1894). 2153 James v. Dravo Contracting Co., 302 U.S. 134 (1937). See also Arizona v. 

California, 292 U.S. 341, 345 (1934). When it approved the New York-New Jersey 

Waterfront Compact, 67 Stat. 541, Congress, for the first time, expressly gave its 

consent to the subsequent adoption of implementing legislation by the participating 

States. De Veau v. Braisted, 363 U.S. 144, 145 (1960). 2154Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 433 

(1856).

ulus was the Crime Compact of 1934, providing for the supervision 

of parolees and probationers, to which most of the States have 

given adherence. 2147 Subsequently, Congress has authorized, on 

varying conditions, compacts touching the production of tobacco, 

the conservation of natural gas, the regulation of fishing in inland 

waters, the furtherance of flood and pollution control, and other 

matters. Moreover, many States have set up permanent commissions for interstate cooperation, which have led to the formation of 

a Council of State Governments, the creation of special commissions for the study of the crime problem, the problem of highway 

safety, the trailer problem, problems created by social security legislation, et cetera, and the framing of uniform state legislation for 

dealing with some of these. 2148

Consent of Congress 

The Constitution makes no provision with regard to the time 

when the consent of Congress shall be given or the mode or form 

by which it shall be signified. 2149 While the consent will usually 

precede the compact or agreement, it may be given subsequently 

where the agreement relates to a matter which could not be well 

considered until its nature is fully developed. 2150 The required consent is not necessarily an expressed consent; it may be inferred 

from circumstances. 2151 It is sufficiently indicated, when not necessary to be made in advance, by the approval of proceedings taken 

under it. 2152 The consent of Congress may be granted conditionally 

‘‘upon terms appropriate to the subject and transgressing no constitutional limitations.’’ 2153 Congress does not, by giving its consent 

to a compact, relinquish or restrict its own powers, as for example, 

its power to regulate interstate commerce. 2154

Grants of Franchise to Corporations by Two States 

It is competent for a railroad corporation organized under the 

laws of one State, when authorized so to do by the consent of the 

ART. I—LEGISLATIVE DEPARTMENT 427

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts 

2155St. Louis & S. F. Ry. v. James, 161 U.S. 545, 562 (1896). 2156Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 725 (1838). 2157 Hinderlider v. La Plata Co., 304 U.S. 92, 104, 106 (1938). 2158Green v. Biddle, 21 U.S. (8 Wheat.) 1, 13 (1823); Virginia v. West Virginia, 

246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridge Co., 54 

U.S. (13 How.) 518, 566 (1852); Olin v. Kitzmiller, 259 U.S. 260 (1922). 2159Petty v. Tennessee-Missouri Comm’n, 359 U.S. 275 (1959). 2160Texas v. New Mexico, 482 U.S. 124 (1987). If the compact makes no provision for resolving impasse, then the Court may exercise its jurisdiction to apportion 

waters of interstate streams. In doing so, however, the Court will not rewrite the 

compact by ordering appointment of a third voting commissioner to serve as a tiebreaker; rather, the Court will attempt to apply the compact to the extent that its 

provisions govern the controversy. Texas v. New Mexico, 462 U.S. 554 (1983). 2161 Virginia v. West Virginia, 246 U.S. 565, 601 (1918). 2162Dyer v. Sims, 341 U.S. 22 (1951). 

State which created it, to accept authority from another State to 

extend its railroad into such State and to receive a grant of powers 

to own and control, by lease or purchase, railroads therein and to 

subject itself to such rules and regulations as may be prescribed by 

the second State. Such legislation on the part of two or more States 

is not, in the absence of inhibitory legislation by Congress, regarded as within the constitutional prohibition of agreements or 

compacts between States. 2155

Legal Effect of Interstate Compacts 

Whenever, by the agreement of the States concerned and the 

consent of Congress, an interstate compact comes into operation, it 

has the same effect as a treaty between sovereign powers. Boundaries established by such compacts become binding upon all citizens of the signatory States and are conclusive as to their 

rights. 2156 Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without 

a judicial determination of existing rights. 2157 Valid interstate compacts are within the protection of the obligation of contracts 

clause, 2158 and a ‘‘sue and be sued’’ provision therein operates as 

a waiver of immunity from suit in federal courts otherwise afforded 

by the Eleventh Amendment. 2159 The Supreme Court in the exercise of its original jurisdiction may enforce interstate compacts following principles of general contract law. 2160 Congress also has authority to compel compliance with such compacts. 2161 Nor may a 

State read herself out of a compact which she has ratified and to 

which Congress has consented by pleading that under the State’s 

constitution as interpreted by the highest state court she had 

lacked power to enter into such an agreement and was without 

power to meet certain obligations thereunder. The final construction of the state constitution in such a case rests with the Supreme 

Court. 2162