ARTICLE I

LEGISLATIVE DEPARTMENT

CONTENTS

Page

Section 1. Legislative Powers ................................................................................................... 65

Separation of Powers and Checks and Balances ............................................................. 65

The Theory Elaborated and Implemented ................................................................ 65

Judicial Enforcement .................................................................................................. 67

Bicameralism ...................................................................................................................... 72

Enumerated, Implied, Resulting, and Inherent Powers ................................................. 73

Delegation of Legislative Power ........................................................................................ 75

The History of the Doctrine of Nondelegability ....................................................... 75

The Nature and Scope of Permissible Delegations .................................................. 79

Filling Up the Details .......................................................................................... 81

Contingent Legislation ........................................................................................ 82

Standards .............................................................................................................. 83

Preemptive Reach of Delegated Authority ......................................................... 87

Delegations to the President in Areas of Shared Authority .................................... 88

Foreign Affairs ...................................................................................................... 88

Military ................................................................................................................. 89

Delegations to States and to Private Entities .......................................................... 90

Delegations to the States .................................................................................... 90

Delegations to Private Entities ........................................................................... 90

Particular Subjects or Concerns—Closer Scrutiny or Uniform Standard? ............ 92

Crime and Punishment ....................................................................................... 93

Delegation and Individual Liberties ................................................................... 95

Congressional Investigations ............................................................................................. 96

Source of the Power to Investigate ............................................................................ 96

Investigations of Conduct of Executive Department ................................................ 98

Investigations of Members of Congress ..................................................................... 99

Investigations in Aid of Legislation ........................................................................... 99

Purpose ................................................................................................................. 99

Protection of Witnesses; Pertinency and Related Matters ............................... 102

Protection of Witnesses; Constitutional Guarantees ......................................... 106

Sanctions of the Investigatory Power: Contempt ..................................................... 109

Section 2. The House of Representatives ................................................................................ 111

Clause 1. Congressional Districting .................................................................................. 111

Elector Qualifications .................................................................................................. 115

Clause 2. Qualifications of Members of Congress ........................................................... 116

When the Qualifications Must Be Possessed ............................................................ 116

Exclusivity of Constitutional Qualifications ............................................................. 117

Congressional Additions ...................................................................................... 117

State Additions ..................................................................................................... 119

Clause 3. Apportionment of Seats In the House ............................................................. 121

The Census Requirement ........................................................................................... 122

Clause 4. Vacancies ............................................................................................................ 124

In General .................................................................................................................... 124

57
Section 2. The House of Representatives—Continued

Clause 5. Officers and Powers of Impeachment .............................................................. 125

In General .................................................................................................................... 125

Section 3. The Senate ................................................................................................................ 125

Clauses 1 and 2. Composition and Election ..................................................................... 125

In General .................................................................................................................... 125

Clauses 3–5. Qualifications, Vice-President, Officers ...................................................... 125

In General .................................................................................................................... 126

Clauses 6 and 7. Trial and Judgment On Impeachment ................................................ 126

In General .................................................................................................................... 126

Section 4. Elections ................................................................................................................... 126

Clause 1. Times, Places, and Manner of Elections .......................................................... 126

Regulation By Congress ............................................................................................ 127

Regulation By the State Legislature ........................................................................ 130

Clause 2. Time of Assembling ........................................................................................... 132

In General .................................................................................................................... 132

Section 5. Powers and Duties of the Houses ........................................................................... 132

Clauses 1–4. Judging Elections, Quorum, Rules, Discipline, Journal, Adjournment ... 132

Powers and Duties of the Houses .............................................................................. 133

Power To Judge Elections .................................................................................... 133

“A Quorum To Do Business” ............................................................................... 133

Rules of Proceedings ............................................................................................ 134

Powers of the Houses Over Members ................................................................ 136

Duty To Keep a Journal ...................................................................................... 136

Section 6. Rights and Disabilities of Members ....................................................................... 137

Clause 1. Compensation and Immunities of Members ................................................... 137

Congressional Pay ....................................................................................................... 137

Privilege From Arrest ................................................................................................. 138

Privilege of Speech or Debate .................................................................................... 138

Members ................................................................................................................ 138

Congressional Employees .................................................................................... 143

Clause 2. Disabilities of Members .................................................................................... 145

Appointment to Executive Office ............................................................................... 145

Incompatible Offices .................................................................................................... 146

Section 7. Legislative Process ................................................................................................... 147

Clauses 1–3. The Legislative Process ............................................................................... 147

Revenue Bills ............................................................................................................... 148

Approval by the President .......................................................................................... 149

The Veto Power ............................................................................................................ 149

Presentation of Resolutions ........................................................................................ 152

The Legislative Veto ............................................................................................ 153

The Line Item Veto .............................................................................................. 156

Section 8. Powers of Congress .................................................................................................. 157

Clause 1. Power to Tax and Spend ................................................................................... 157

Kinds of Taxes Permitted ........................................................................................... 157

Decline of the Forbidden Subject Matter Test ................................................... 157

Federal Taxation of State Interests .................................................................... 158

Scope of State Immunity From Federal Taxation ............................................. 160

Uniformity Requirement ..................................................................................... 162

Purposes of Taxation ................................................................................................... 163

Regulation by Taxation ........................................................................................ 163

Promotion of Business: Protective Tariff ............................................................ 166

Spending For the General Welfare ............................................................................ 167

58 ART. I—LEGISLATIVE DEPARTMENT
Section 8. Powers of Congress—Continued

Clause 1. Power to Tax and Spend—Continued

Scope of the Power ............................................................................................... 167

Social Security Act Cases ............................................................................. 170

Conditional Grants-in-Aid ............................................................................ 170

Earmarked Funds ......................................................................................... 174

Debts of the United States ........................................................................... 175

Clause 2. Borrowing Power ............................................................................................... 175

Clause 3. Power to Regulate Commerce ........................................................................... 176

Purposes Served by the Grant ................................................................................... 176

Definition of Terms ...................................................................................................... 177

Commerce ............................................................................................................. 177

Among the Several States ................................................................................... 179

Regulate ................................................................................................................ 181

Necessary and Proper Clause ............................................................................. 182

Federalism Limits on Exercise of Commerce Power ........................................ 182

Illegal Commerce ......................................................................................................... 183

Interstate Versus Foreign Commerce ........................................................................ 184

Instruments of Commerce .......................................................................................... 185

Congressional Regulation of Waterways ................................................................... 186

Navigation ............................................................................................................. 186

Hydroelectric Power; Flood Control .................................................................... 190

Congressional Regulation of Land Transportation ................................................... 192

Federal Stimulation of Land Transportation ..................................................... 192

Federal Regulation of Land Transportation ...................................................... 192

Federal Regulation of Intrastate Rates (The Shreveport Doctrine) ................ 194

Federal Protection of Labor in Interstate Rail Transportation ....................... 195

Regulation of Other Agents of Carriage and Communications ........................ 196

Congressional Regulation of Commerce as Traffic ................................................... 197

The Sherman Act: Sugar Trust Case ................................................................. 197

Sherman Act Revived ........................................................................................... 199

The “Current of Commerce” Concept: The Swift Case ..................................... 200

The Danbury Hatters Case ................................................................................. 201

Stockyards and Grain Futures Acts ................................................................... 201

Securities and Exchange Commission ................................................................ 203

Congressional Regulation of Production and Industrial Relations: Antidepression

Legislation ................................................................................................................ 203

National Industrial Recovery Act ....................................................................... 203

Agricultural Adjustment Act ............................................................................... 205

Bituminous Coal Conservation Act ..................................................................... 205

Railroad Retirement Act ...................................................................................... 206

National Labor Relations Act .............................................................................. 207

Fair Labor Standards Act .................................................................................... 209

Agricultural Marketing Agreement Act .............................................................. 211

Acts of Congress Prohibiting Commerce ................................................................... 213

Foreign Commerce: Jefferson’s Embargo ........................................................... 213

Foreign Commerce: Protective Tariffs ................................................................ 214

Foreign Commerce: Banned Articles .................................................................. 214

Interstate Commerce: Power to Prohibit Questioned ....................................... 215

Interstate Commerce: National Prohibitions and State Police Power ............ 216

The Lottery Case .................................................................................................. 217

The Darby Case .................................................................................................... 219

The Commerce Clause as a Source of National Police Power ................................ 219

ART. I—LEGISLATIVE DEPARTMENT 59
Section 8. Powers of Congress—Continued

Clause 3. Power to Regulate Commerce—Continued

Is There an Intrastate Barrier to Congress’s Commerce Power? .................... 219

Requirement that Regulation be Economic ....................................................... 224

Activity Versus Inactivity .................................................................................... 228

Civil Rights ........................................................................................................... 229

Criminal Law ........................................................................................................ 230

The Commerce Clause As a Restraint On State Powers ......................................... 231

Doctrinal Background .......................................................................................... 231

The State Proprietary Activity (Market Participant) Exception .............. 238

Congressional Authorization of Otherwise Impermissible State

Action ......................................................................................................... 239

State Taxation and Regulation: The Old Law ................................................... 242

General Considerations ................................................................................ 243

Taxation ......................................................................................................... 243

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

State Taxation and Regulation: The Modern Law ............................................ 250

General Considerations ................................................................................ 250

Taxation ......................................................................................................... 250

Regulation ...................................................................................................... 259

Foreign Commerce and State Powers ................................................................ 267

Concurrent Federal and State Jurisdiction .............................................................. 271

The General Issue: Preemption .......................................................................... 271

Preemption Standards .................................................................................. 273

The Standards Applied ................................................................................. 275

Federal Versus State Labor Laws ............................................................... 290

Commerce With Indian Tribes ................................................................................... 297

Clause 4. Naturalization and Bankruptcy ....................................................................... 301

Naturalization and Citizenship .................................................................................. 301

Nature and Scope of Congress’s Power .............................................................. 301

Categories of Citizens: Birth and Naturalization ............................................. 303

The Naturalization of Aliens ............................................................................... 305

Rights of Naturalized Persons ............................................................................ 307

Expatriation: Loss of Citizenship ....................................................................... 309

Aliens ............................................................................................................................ 313

Deportation ........................................................................................................... 318

Bankruptcy .................................................................................................................. 319

Persons Who May Be Released From Debt ....................................................... 319

Liberalization of Relief Granted and Expansion of the Rights of the

Trustee ............................................................................................................... 320

Constitutional Limitations on the Bankruptcy Power ...................................... 321

Constitutional Status of State Insolvency Laws: Preemption ......................... 322

Clauses 5 and 6. Money ..................................................................................................... 324

Fiscal and Monetary Powers of Congress ................................................................. 324

Coinage, Weights, and Measures ........................................................................ 324

Punishment of Counterfeiting ............................................................................. 325

Borrowing Power Versus Fiscal Power .............................................................. 326

Clause 7. Post Office .......................................................................................................... 326

Postal Power ................................................................................................................ 327

“Establish” ............................................................................................................ 327

Power To Protect the Mails ................................................................................. 327

Power To Prevent Harmful Use of the Postal Facilities .................................. 328

Exclusive Power as an Adjunct to Other Powers .............................................. 330

60 ART. I—LEGISLATIVE DEPARTMENT
Section 8. Powers of Congress—Continued

Clause 7. Post Office—Continued

State Regulations Affecting the Mails ................................................................ 330

Clause 8. Copyrights and Patents .................................................................................... 331

Origins and Scope of the Power ................................................................................. 331

Patentable Discoveries ................................................................................................ 334

Procedure in Issuing Patents ..................................................................................... 336

Nature and Scope of the Right Secured for Copyright ............................................ 337

Power of Congress Over Patents and Copyrights .................................................... 338

Copyright and the First Amendment ........................................................................ 339

State Power Affecting Patents and Copyrights ........................................................ 340

Trade-Marks and Advertisements .............................................................................. 342

Clause 9. Creation of Courts ............................................................................................. 342

In General .................................................................................................................... 342

Clause 10. Maritime Crimes ............................................................................................. 342

Piracies, Felonies, and Offenses Against the Law of Nations ................................. 343

Origin of the Clause ............................................................................................. 343

Definition of Offenses ........................................................................................... 343

Extraterritorial Reach of the Power ................................................................... 344

Clauses 11–14. The War Power ......................................................................................... 345

Source and Scope ......................................................................................................... 345

Three Theories ...................................................................................................... 345

An Inherent Power ............................................................................................... 346

A Complexus of Granted Powers ........................................................................ 347

Declaration of War ...................................................................................................... 347

The Power to Raise and Maintain Armed Forces .................................................... 351

Purpose of Specific Grants .................................................................................. 351

Time Limit on Appropriations for the Army ...................................................... 351

Conscription .......................................................................................................... 352

Care of the Armed Forces .................................................................................... 353

Trial and Punishment of Offenses: Servicemen, Civilian Employees, and

Dependents ........................................................................................................ 356

Servicemen .................................................................................................... 356

Civilians and Dependents ............................................................................ 359

War Legislation ........................................................................................................... 359

War Powers in Peacetime .................................................................................... 359

Delegation of Legislative Power in Wartime ..................................................... 362

Constitutional Rights In Wartime ............................................................................. 364

Constitution and the Advance of the Flag ......................................................... 364

Theater of Military Operations .................................................................... 364

Enemy Country ............................................................................................. 364

Enemy Property ............................................................................................ 365

Prizes of War ................................................................................................. 366

The Constitution at Home in Wartime .............................................................. 366

Personal Liberty ............................................................................................ 366

Enemy Aliens ................................................................................................ 369

Eminent Domain ........................................................................................... 369

Rent and Price Controls ............................................................................... 370

Clauses 15 and 16. The Militia ......................................................................................... 371

The Militia Clauses ..................................................................................................... 371

Calling Out the Militia ........................................................................................ 371

Regulation of the Militia ..................................................................................... 372

Clause 17. District of Columbia; Federal Property ......................................................... 373

ART. I—LEGISLATIVE DEPARTMENT 61
Section 8. Powers of Congress—Continued

Clause 17. District of Columbia; Federal Property—Continued

Seat of the Government .............................................................................................. 373

Authority Over Places Purchased .............................................................................. 377

“Places” .................................................................................................................. 377

Duration of Federal Jurisdiction ........................................................................ 378

Reservation of Jurisdiction by States ................................................................. 379

Clause 18. Necessary and Proper Clause ......................................................................... 379

Scope and Operation ................................................................................................... 380

Definition of Punishment and Crimes ....................................................................... 381

Chartering of Banks .................................................................................................... 383

Currency Regulations .................................................................................................. 383

Power to Charter Corporations .................................................................................. 384

Courts and Judicial Proceedings ................................................................................ 384

Special Acts Concerning Claims ................................................................................ 385

Maritime Law .............................................................................................................. 385

Section 9. Powers Denied to Congress ..................................................................................... 385

Clause 1. Importation of Slaves ........................................................................................ 385

In General .................................................................................................................... 386

Clause 2. Habeas Corpus Suspension .............................................................................. 386

In General .................................................................................................................... 386

Clause 3. Bills of Attainder and Ex Post Facto Laws ..................................................... 388

Bills of Attainder ......................................................................................................... 388

Ex Post Facto Laws .................................................................................................... 392

Definition .............................................................................................................. 392

What Constitutes Punishment ............................................................................ 393

Change in Place or Mode of Trial ....................................................................... 394

Clause 4. Taxes ................................................................................................................... 394

Direct Taxes ................................................................................................................. 394

The Hylton Case .................................................................................................. 394

From the Hylton to the Pollock Case ................................................................. 395

Restriction of the Pollock Decision ..................................................................... 396

Miscellaneous ....................................................................................................... 397

Clause 5. Duties On Exports From States ....................................................................... 398

Taxes On Exports ........................................................................................................ 398

Stamp Taxes ......................................................................................................... 399

Clause 6. Preference to Ports ............................................................................................ 400

The No Preference Clause .......................................................................................... 400

Clause 7. Appropriations and Accounting of Public Money ............................................ 401

Appropriations ............................................................................................................. 401

Payment of Claims ...................................................................................................... 402

Clause 8. Titles of Nobility; Presents ............................................................................... 402

In General .................................................................................................................... 402

Section 10. Powers Denied to the States ................................................................................. 403

Clause 1. Treaties, Coining Money, Impairing Contracts, Etc. ...................................... 403

Clause 2. Duties On Exports and Imports ....................................................................... 443

Duties On Exports or Imports ................................................................................... 443

Scope ..................................................................................................................... 443

Privilege Taxes ..................................................................................................... 445

Property Taxes ...................................................................................................... 445

Inspection Laws .................................................................................................... 446

Clause 3. Tonnage Duties and Interstate Compacts ....................................................... 447

Tonnage Duties ............................................................................................................ 447

62 ART. I—LEGISLATIVE DEPARTMENT
Section 10. Powers Denied to the States—Continued

Clause 3. Tonnage Duties and Interstate Compacts—Continued

Keeping Troops ............................................................................................................ 448

Interstate Compacts .................................................................................................... 448

Background of Clause .......................................................................................... 448

Subject Matter of Interstate Compacts .............................................................. 450

Consent of Congress ............................................................................................. 450

Grants of Franchise to Corporations by Two States ......................................... 451

Legal Effect of Interstate Compacts ................................................................... 451

ART. I—LEGISLATIVE DEPARTMENT 63

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 The theory of checks

and balances, however, 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 common1 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).

2 Thus 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.”

65
place 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 generally held principles: 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, in, 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 counteract ambi3 “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).

4 The 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”).

5 THE 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.

Sec. 1—The Congress Legislative Powers

66 ART. I—LEGISLATIVE DEPARTMENT
tion. 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 President a means of defending his

priorities and 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. Because 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. Indeed, it is only

in recent 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 taken a strong separation position on behalf

of the President, sometimes unsuccessfully 12 and sometimes successfully.

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).

11 See Mistretta v. United States, 488 U.S. 361, 415–16 (1989) (Justice Scalia

dissenting).

12 The 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).

Sec. 1—The Congress Legislative Powers

ART. I—LEGISLATIVE DEPARTMENT 67
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

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).

17 Morrison v. Olson, 487 U.S. 654 (1988). See also Mistretta v. United States,

488 U.S. 361 (1989).

18 The 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

Sec. 1—The Congress Legislative Powers

68 ART. I—LEGISLATIVE DEPARTMENT
Although 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 legislative, because it had the purpose and effect of altering the legal

the right to a jury trial under the Seventh Amendment rather than strictly speaking a separation-of-powers question. Freytag v. Commissioner, 501 U.S. 868 (1991),

pursued a straightforward appointments-clause analysis, informed by a separationof-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 seem to demonstrate that a strongly

formalistic wing of the Court continues 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 (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 infringements 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.

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ART. I—LEGISLATIVE DEPARTMENT 69
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 to do so 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 used the less strict, functional approach in resolving a challenge to the power of a regulatory agency

to adjudicate 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 impermissi21 INS v. Chadha, 462 U.S. 919, 952 (1983).

22 462 U.S. at 952.

23 Bowsher v. Synar, 478 U.S. 714, 726–727, 733–734 (1986).

24 Although 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 each case was whether

the judicial power of the United States could be conferred on an entity that was 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)).

26 Schor, 478 U.S. at 851.

27 478 U.S. at 856.

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70 ART. I—LEGISLATIVE DEPARTMENT
bly undermined the role of another branch without appreciable expansion of its own power.

Although 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 implying 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 when, in the independent counsel case, the Court, again without stating why it chose

that analysis, used the functional standard to sustain the creation

of the independent counsel.28 The independent-counsel 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 constitutionality of the Sentencing

28 To be sure, the Appointments Clause (Article II, § 2) specifically provides that

Congress may 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).

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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 separationof-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 the functional analysis

for all separation-of-powers cases, 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 unicam30 Mistretta v. United States, 488 U.S. 361 (1989). Significantly, the Court acknowledged 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.

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72 ART. I—LEGISLATIVE DEPARTMENT
eral, 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 classic statement of the former is 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 both Madison and Hamilton and is

32 THE 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; see also 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).

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ART. I—LEGISLATIVE DEPARTMENT 73
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 Chief Justice Marshall’s broad conception of some of these powers, as he described them in McCulloch v. Maryland. He asserts that “[t]he 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, or levying taxes, or of regulating

commerce” as “great substantive and independent power[s]”; 38 and

he declares that the power conferred by the “necessary and proper”

clause embraces all legislative “means which are appropriate” to carry

out the legitimate ends of the Constitution, unless inconsistent “with

the letter and spirit of the constitution.” 39

Nine years later, Marshall introduced what Story in his Commentaries labels the concept of “resulting powers,” which are those

that “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 Ins. Co. v.

Canter,

41 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, Marshall 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

35 See 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.

44 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 616, 618–19 (1842).

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74 ART. I—LEGISLATIVE DEPARTMENT
the government the quality of legal tender in the payment of 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

Export 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

that 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. Marshall laid the ground for these developments

in some of the language quoted above from 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

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).

48 Fong 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).

52 Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41 (1825).

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ART. I—LEGISLATIVE DEPARTMENT 75
made.53 The Court has long recognized that administration 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 1930s 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’s 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 “intelli53 The Court in Shreveport Grain & Elevator upheld a delegation of authority

to the FDA to allow reasonable variations, tolerances, and exemptions from misbranding 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”).

55 Mistretta 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”).

56 Wayman 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.

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76 ART. I—LEGISLATIVE DEPARTMENT
gible principle” to which the President or an agency must conform.59

As characterized by the Court, the delegations struck down in

1935 in Panama Refining 60 and Schechter 61 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

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,

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

60 Panama 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).

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

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

deviation, Congress’s ability to delegate power under broad standards.” 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

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).

66 Mistretta v. United States, 488 U.S. 361, 373 (1989).

67 Lichter 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).

70 FPC 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).

73 Mistretta v. United States, 488 U.S. 361, 373–79 (1989).

74 See, 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’ ”).

75 See, 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.”)

76 See, 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”).

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78 ART. I—LEGISLATIVE DEPARTMENT
Concerns in the scholarly literature with respect to the scope

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

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]

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).

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).

80 Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v. Southard, 23 U.S. (10

Wheat.) 1, 42 (1825).

81 276 U.S. 394 (1928).

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the governmental power into three branches. . . . [I]n carrying out

that constitutional division into three branches 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 executive 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 coordination.” 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 separationof-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

82 276 U.S. at 406. 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). Because 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).

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80 ART. I—LEGISLATIVE DEPARTMENT
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 provision 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 rulemaking 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 Trea86 23 U.S. (10 Wheat.) 1, 41 (1825).

87 The 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.

90 The 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).

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sury to promulgate minimum standards of quality and purity for

tea imported into the United States.94

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 used 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 that “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 and (2) that the act did “not, in any real sense, invest the

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. 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.

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82 ART. I—LEGISLATIVE DEPARTMENT
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 duration 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 Although 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 Indus99 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).

103 The 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).

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trial 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 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-operative, Inc.,

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 inter105 48 Stat. 195 (1933), Tit. I, § 1.

106 295 U.S. at 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).

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

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84 ART. I—LEGISLATIVE DEPARTMENT
est,” 111 “public convenience, interest, or necessity,” 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 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 Whitman v. Ameri111 New York Central Securities Corp. v. United States, 287 U.S. 12 (1932).

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

(1933).

113 FTC v. Gratz, 253 U.S. 421 (1920).

114 Whitman v. American Trucking Ass’ns, 531 U.S. 547 (2001).

115 319 U.S. 190 (1943).

116 319 U.S. at 216.

117 Similarly, 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.

119 Fahey 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

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ART. I—LEGISLATIVE DEPARTMENT 85
can 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 of the statute,” 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

Although 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 United States 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. For example, 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

it constitutional.” 334 U.S. at 783. The “excessive profits” standard, prior to definition, 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.

124 531 U.S. at 472.

125 Whitman v. American Trucking Ass’ns, 531 U.S. 457, 475 (2001).

126 Whitman, 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).

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86 ART. I—LEGISLATIVE DEPARTMENT
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 require much in the way of standards from Congress. The minimum

upon which the Court usually insists is that Congress use a delegation that “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

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).

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ART. I—LEGISLATIVE DEPARTMENT 87
the Constitution can preempt state law.135 Similarly, a valid regulation 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’s 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 CurtissWright, reinforced such a distinction in a case involving the Presi135 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 Fed. Savings & Loan Ass’n v. de la Cuesta,

458 U.S. 141, 153–54 (1982).

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).

139 See 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, Pub. 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).

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88 ART. I—LEGISLATIVE DEPARTMENT
dent’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 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’s 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

142 Loving v. United States, 517 U.S. 748, 772–73 (1996).

143 299 U.S. at 319.

144 517 U.S. 748 (1996).

145 10 U.S.C. §§ 918(1), (4).

146 The 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.

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thus the delegated duty is interlinked with duties already assigned

the President by the Constitution.149

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. Although 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 1917

statute authorizing a military draft 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.—The Court has upheld statutory delegations to private persons in the form of contingency legislation. It has upheld, for example, 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.155 The Court’s rationale has been

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).

150 See 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).

151 Prigg 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., Pub. 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,

Pub. L. 100–582, 102 Stat. 2955, 42 U.S.C. § 6992f (states may impose civil and

possibly criminal penalties against violators of the law).

154 See 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 Cooperative, Inc., 307 U.S. 533, 577 (1939); Wickard v. Filburn, 317 U.S. 111, 115–116

(1942); United States v. Frame, 885 F.2d 1119 (3d Cir. 1989), cert. denied, 493 U.S.

1094 (1990).

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90 ART. I—LEGISLATIVE DEPARTMENT
that such a provision does not involve any delegation of legislative

authority, because Congress has merely placed a restriction upon

its own regulation by withholding its operation unless it is approved in a referendum.156

The Court has also upheld statutes that give private entities

actual regulatory power, rather than that merely make regulation

contingent on such entities’ approval. The Court, for example, upheld a statute that delegated 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. In Schechter, it 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 lat156 Currin v. Wallace, 306 U.S. 1, 15, 16 (1939).

157 St. 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).

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ter due process.163 And several later cases have upheld delegations

to private entities.164

Even though the Court has upheld some delegations to private

entities by reference to cases involving delegations to public agencies, some uncertainty remains as to whether identical standards

apply in the two situations. Schechter 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. Although 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’s taxing power is subject to no constitutional scrutiny greater

than that we have applied to other nondelegation challenges,” the

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.

164 See, 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.

165 The 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.

167 See, e.g., Yakus v. United States, 321 U.S. 414, 424–25 (1944).

168 Lichter v. United States, 334 U.S. 742, 778–79 (1948).

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92 ART. I—LEGISLATIVE DEPARTMENT
Court explained in Skinner v. Mid-America Pipeline Company 169 that

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 implementing 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 un169 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. It is difficult to discern how this view could

have been held after the many cases sustaining delegations to fix tariff rates, which

are in fact and in law taxes. J. W. Hampton, Jr. & Co. v. United States, 276 U.S.

394 (1928); Field v. Clark, 143 U.S. 649 (1892); see also 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). 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).

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.

171 Touby v. United States, 500 U.S. 160, 166 (1991).

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less 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 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

172 Tiffany 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).

174 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

175 Fahey v. Mallonee, 332 U.S. 245, 249 (1947).

176 L. 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’s delegation of authority to define criminal punishments.”

178 Touby v. United States, 500 U.S. 160 (1991).

179 Mistretta v. United States, 488 U.S. 361 (1989).

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94 ART. I—LEGISLATIVE DEPARTMENT
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

Delegation and Individual Liberties.—Some Justices have

argued 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

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.

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 288–89, and ignored by the majority.

182 Kent v. Dulles, 357 U.S. 116, 129 (1958).

183 Kent 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).

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ART. I—LEGISLATIVE DEPARTMENT 95
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 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

185 Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 HARV. L. REV. 153, 159–166 (1926); M. DIMOCK, CONGRESSIONAL INVESTIGATING COMMITTEES ch. 2 (1929).

186 3 ANNALS OF CONGRESS 490–494 (1792); 3 A. HINDS’ PRECEDENTS OF THE HOUSE OF

REPRESENTATIVES 1725 (1907).

187 McGrain v. Daugherty, 273 U.S. 135, 174–175 (1927).

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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 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.

188 Watkins v. United States, 354 U.S. 178, 187 (1957).

189 Barenblatt v. United States, 360 U.S. 109, 111 (1959). See also Eastland v.

United States Servicemen’s Fund, 421 U.S. 491, 503–07 (1975).

190 Kilbourn v. Thompson, 103 U.S. 168, 189 (1881).

191 McGrain v. Daugherty, 273 U.S. 135, 170 (1927). The internal quotations are

from Kilbourn v. Thompson, 103 U.S. 168, 190, 193 (1881).

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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 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 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.

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).

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).

198 The 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 judiSec. 1—The Congress Legislative Powers

98 ART. I—LEGISLATIVE DEPARTMENT
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

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

cial 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).

200 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, is addressed in Article II, The Presidential

Aegis: Demands for Papers. 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 relatively recently become a judicial issue.

201 In re Chapman, 166 U.S. 661 (1897).

202 279 U.S. 597 (1929).

203 4 CONG. DEB. 862, 868, 888, 889 (1827).

204 Kilbourn v. Thompson, 103 U.S. 168 (1881).

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Subsequent cases, however, have given 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 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

Although 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, and the conduct 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

205 In re Chapman, 166 U.S. 661, 670 (1897).

206 273 U.S. 135, 178 (1927).

207 279 U.S. 263 (1929).

208 279 U.S. at 295.

209 279 U.S. at 294.

210 The first case so holding is ICC v. Brimson, 154 U.S. 447 (1894), which asserts that, because 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.

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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 Because Congress clearly has the power to legislate to protect the nation and its citizens from subversion, espionage, and sedition,212 it also has the power to inquire into the existence of the dangers of domestic or foreign-based subversive activities

in many areas of American life, including education,213 labor and

industry,214 and political activity.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 that the cases have discussed 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

211 Watkins v. United States, 354 U.S. 178, 195 (1957).

212 See 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).

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).

214 Watkins 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).

215 McPhaul v. United States, 364 U.S. 372 (1960).

216 Hutcheson v. United States, 369 U.S. 599 (1962).

217 Shelton v. United States, 404 F.2d 1292 (D.C. Cir. 1968), cert. denied, 393

U.S. 1024 (1969).

218 Watkins 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,

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some Justices, always in dissent, have attempted to assert limitations in practice based upon this concept, the majority of Justices

have adhered to the traditional precept that courts will not inquire

into legislators’ motives but will look219 only 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 into 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

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 of New Hampshire, 383 U.S. 825

(1966) (a state investigative case).

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).

224 The Committee has since been abolished.

225 Watkins v. United States, 354 U.S. 178, 202 (1957).

226 360 U.S. 109 (1959).

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102 ART. I—LEGISLATIVE DEPARTMENT
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 consideration 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 Un227 360 U.S. at 117–18.

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).

231 The 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).

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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 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 UnAmerican Activities Committee was successful in convincing a majority

of the Court that its subsequent investigations were authorized and

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.

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that the questions asked of recalcitrant witnesses were pertinent

to the inquiries.237

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 effec237 Notice should be taken, however, of two cases that, 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.

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

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).

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tively 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 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 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

The Court has blown hot and cold on the issue of a quorum as

a prerequisite to a valid contempt citation, and no firm statement

of a rule is possible, although it seems probable that no quorum is

ordinarily 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

240 Braden v. United States, 365 U.S. 431 (1961).

241 The 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 Barenblatt 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).

243 Failure 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, although 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.

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106 ART. I—LEGISLATIVE DEPARTMENT
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’s power to

legislate, so it limits the power to investigate. This section addresses 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 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

245 Barenblatt v. United States, 360 U.S. 109, 112 (1959).

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).

247 Quinn 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).

250 McPhaul v. United States, 364 U.S. 372 (1960).

251 369 U.S. 599 (1962).

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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 selfincrimination but contended that, by questioning him about matters that would aid the state prosecutor, the committee 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 abol252 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.

253 The 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).

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108 ART. I—LEGISLATIVE DEPARTMENT
ish 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 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 to subpoenas as well 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

256 Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States,

365 U.S. 431 (1961).

257 United States v. Rumely, 345 U.S. 41 (1953).

258 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963).

See also DeGregory v. Attorney General, 383 U.S. 825 (1966).

259 Watkins v. United States, 354 U.S. 178, 188 (1957).

260 See 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).

264 The 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 opSec. 1—The Congress Legislative Powers

ART. I—LEGISLATIVE DEPARTMENT 109
contumacious witness was conceded in Marshall v. Gordon,

265 although the Court there held that the implied power to 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

portunity 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).

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 minor modification, this statute

is now 2 U.S.C. § 192.

271 In re Chapman, 166 U.S. 661, 671–672 (1897).

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110 ART. I—LEGISLATIVE DEPARTMENT
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 that the law accords 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.

272 Sinclair 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).

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ART. I—LEGISLATIVE DEPARTMENT 111
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 structured so that each elected representative represents substantially equal populations.275 Although this requirement 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. I, § 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 singlemember 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 used the “political question”

275 The phrase “one person, one vote” might well seem to refer to election districts drawn to contain equal numbers of voters 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 7–8.

279 Act of June 25, 1842, 5 Stat. 491.

280 Act of February 2, 1872, 17 Stat. 28.

281 The 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).

282 Smiley 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).

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112 ART. I—LEGISLATIVE DEPARTMENT
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 the election of

Members of the House of Representatives.285 Justice Harlan in dissent argued that the statements on which the majority relied 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 [goodfaith] 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 eco283 369 U.S. 186 (1962).

284 Wesberry v. Sanders, 376 U.S. 1 (1964).

285 376 U.S. at 7–18.

286 376 U.S. at 20–49.

287 Kirkpatrick 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).

289 Kirkpatrick v. Preisler, 394 U.S. 526, 530 (1969).

290 394 U.S. at 531.

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ART. I—LEGISLATIVE DEPARTMENT 113
nomic 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 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 equalprotection analysis, and, although the Court has held claims of denial of effective representation to be justiciable, the standards are

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.”

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.

297 White 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.

298 Karcher v. Daggett, 462 U.S. 725, 733 (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.

Sec. 2—House of Representatives Cl. 1—Congressional Districting

114 ART. I—LEGISLATIVE DEPARTMENT
so high that neither voters nor minority parties have yet benefitted

from the development.299

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

299 The principal case was Davis v. Bandemer, 478 U.S. 109 (1986), a legislative

apportionment case, but congressional districting is also covered. See Badham v. Eu,

694 F. Supp. 664 (N.D. Cal. 1988) (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. 1992)

(three-judge court) (same), aff’d, 506 U.S. 801 (1992); Vieth v. Jubelirer, 541 U.S.

267 (2004) (same); League of United Latin American Citizens v. Perry, 548 U.S. 399

(2006) (same). Additional discussion of this issue appears under Amendment 14, The

New Equal Protection, Apportionment and Districting.

300 The 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.

301 Minor 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).

302 The 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.

303 The 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.

304 The 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).

307 Titles 2 and 3, 84 Stat. 314, 42 U.S.C. § 1973bb.

308 Oregon v. Mitchell, 400 U.S. 112, 119–131, 135–144, 239–281 (1970).

Sec. 2—House of Representatives Cl. 1—Congressional Districting

ART. I—LEGISLATIVE DEPARTMENT 115
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 Constitution,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 Member-elect

presents himself to take the oath of office. Although 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

309 Oregon v. Mitchell, 400 U.S. 112, 134, 147–150, 236–239, 285–292 (1970).

310 Oregon v. Mitchell, 400 U.S. 112, 119–131, 152–213, 293–296 (1970).

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).

314 See 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.

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116 ART. I—LEGISLATIVE DEPARTMENT
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 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 clause 2 are

exclusive 322 and that Congress could not add to them by excluding

Members-elect not meeting the additional qualifications.323

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).

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 Memberelect 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 that 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 dissenters,

who would hold that Congress, for different reasons could not add to qualifications,

although the states could. Id. at 875–76.

322 The 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.

Sec. 2—House of Representatives Cl. 2—Qualifications

ART. I—LEGISLATIVE DEPARTMENT 117
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 debates, and textual considerations. This process led the Court to conclude that Congress’s 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 qualification,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

324 H. REP. NO. 27, 90th Congress, 1st sess. (1967); 395 U.S. at 489–493.

325 Powell 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.

Sec. 2—House of Representatives Cl. 2—Qualifications

118 ART. I—LEGISLATIVE DEPARTMENT
exercised under the guise of judging qualifications, would be to ignore Madison’s warning, borne out in the Wilkes case and some of

Congress’s 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 in effective participation in the

electoral process, an interest which could be protected by a narrow

interpretation of Congressional power.331

The result in Powell had been foreshadowed 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 residency requirement in the district, rather than the federal requirement of being

an inhabitant of the state at the time of election; the state require330 395 U.S. at 547–48.

331 The 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.

Sec. 2—House of Representatives Cl. 2—Qualifications

ART. I—LEGISLATIVE DEPARTMENT 119
ment, 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.

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,

335 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 414 (1907).

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.

338 The 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).

340 See Sullivan, Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton, 109

HARV. L. REV. 78 (1995).

Sec. 2—House of Representatives Cl. 2—Qualifications

120 ART. I—LEGISLATIVE DEPARTMENT
“[w]here 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

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,

because 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 exclud341 514 U.S. at 848 (Justice Thomas dissenting). See generally id. at 846–65.

342 514 U.S. at 802.

343 514 U.S. at 798–805. See also 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 Legislation Protecting Electoral Process, infra.

Sec. 2—House of Representatives Cl. 3—Apportionment

ART. I—LEGISLATIVE DEPARTMENT 121
ing Indians not taxed, three fifths of all other Persons].344 The

actual Enumeration shall be made within three Years after 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

344 The 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.

345 Utah v. Evans, 536 U.S. 452, 476 (2002).

346 Id.

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122 ART. I—LEGISLATIVE DEPARTMENT
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

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

Although 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,

347 Utah v. Evans, 536 U.S. 452 (2002).

348 See 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.

349 Knox v. Lee (Legal Tender Cases), 79 U.S. (12 Wall.) 457, 536 (1971) (“Who

questions the power to do this?”).

350 For 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.

Sec. 2—House of Representatives Cl. 3—Apportionment

ART. I—LEGISLATIVE DEPARTMENT 123
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 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

Although 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.

352 U.S. Department of Commerce v. Montana, 503 U.S. 442 (1992).

353 503 U.S. at 463 (“[T]he 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”).

354 241 U.S. 565 (1916).

355 Smiley v. Holm, 285 U.S. 355 (1932); Koenig v. Flynn, 285 U.S. 375 (1932);

Carroll v. Becker, 285 U.S. 380 (1932).

Sec. 2—House of Representatives Cl. 3—Apportionment

124 ART. I—LEGISLATIVE DEPARTMENT
Clause 5. The House of Representatives shall chuse their

Speaker and other Officers; and shall have the sole Power of Impeachment.

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.

356 See Seventeenth Amendment.

357 See Seventeenth Amendment.

358 See Seventeenth Amendment.

Sec. 3—Senate Cls. 3–5—Qualifications, Vice-President, Officers

ART. I—LEGISLATIVE DEPARTMENT 125
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.

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 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.

Sec. 3—Senate Cls. 3–5—Qualifications, Vice-President, Officers

126 ART. I—LEGISLATIVE DEPARTMENT
REGULATION BY CONGRESS

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 Representatives 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,

359 5 Stat. 491 (1842). The requirement was omitted in 1850, 9 Stat. 428, but

was adopted again in 1862. 12 Stat. 572.

360 The 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).

361 The 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, 383–86 (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

Sec. 4—Elections Cl. 1—Times, Places, and Manner

ART. I—LEGISLATIVE DEPARTMENT 127
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 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 used 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 expendicould 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).

365 The 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).

366 The 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’s power to enforce the Fifteenth Amendment. United States v. Reese,

92 U.S. 214 (1876).

367 28 Stat. 144 (1894).

368 Pub. L. 85–315, Part IV, § 131, 71 Stat. 634, 637 (1957); Pub. L. 86–449,

Title III, § 301, Title VI, 601, 74 Stat. 86, 88, 90 (1960); Pub. L. 88–352, Title I,

§ 101, 78 Stat. 241 (1964); Pub. L. 89–110, 79 Stat. 437 (1965); Pub. L. 90–284, Title

I, § 101, 82 Stat. 73 (1968); Pub. L. 91–285, 84 Stat. 314 (1970); Pub. L. 94–73, 89

Stat. 400 (1975); Pub. 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, repealed by Pub. L. 94–283, Title II,

§ 201(a), 90 Stat. 496 (1976). Current law on the subject is codified at 2 U.S.C. § 441b.

Sec. 4—Elections Cl. 1—Times, Places, and Manner

128 ART. I—LEGISLATIVE DEPARTMENT
tures in federal elections,370 and other acts have similarly provided

other regulations.371

As 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, use

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.

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);

United 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).

Sec. 4—Elections Cl. 1—Times, Places, and Manner

ART. I—LEGISLATIVE DEPARTMENT 129
its power under this clause, combined with the Necessary and 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

REGULATION BY THE STATE LEGISLATURE

By its terms, Article I, Section 4, Clause 1, also contemplates

the times, places, and manner of holding elections being “prescribed in each State by the Legislature thereof,” subject to alteration by Congress (except as to the place of choosing Senators). However, the Court did not have occasion to address what constitutes

regulation by a state “Legislature” for purposes of the Elections Clause

until its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.

383 There, the Court rejected the

Arizona legislature’s challenge to the validity of the Arizona Independent Redistricting Commission (AIRC) and AIRC’s 2012 map of

congressional districts.384 The Commission had been established by

a 2000 ballot initiative, which removed redistricting authority from

the legislature and vested it in the AIRC.385 The legislature asserted that this arrangement violated the Elections Clause because

the Clause contemplates regulation by a state “Legislature” and “Legislature” means the state’s representative assembly.386

The Court disagreed and held that Arizona’s use of an independent commission to establish congressional districts is permissible

because the Elections Clause uses the word “Legislature” to describe “the power that makes laws,” a term that is broad enough to

encompass the power provided by the Arizona constitution for the

people to make laws through ballot initiatives.387 In so finding, the

Court noted that the word “Legislature” has been construed in various ways depending upon the constitutional provision in which it

is used, and its meaning depends upon the function that the entity

denominated as the “Legislature” is called upon to exercise in a spe382 In Oregon v. Mitchell, 400 U.S. 112 (1970), however, 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 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.

383 576 U.S. ___, No. 13–1314, slip op. (2015).

384 Id. at 2–3.

385 Id.

386 Id. at 2.

387 Id. at 18. The Court also found that the use of the commission was permissible under 2 U.S.C. § 2a(c), a statutory provision that the Court construed as safeguarding to “each state full authority to employ in the creation of congressional districts its own laws and regulations.” Id. at 19.

Sec. 4—Elections Cl. 1—Times, Places, and Manner

130 ART. I—LEGISLATIVE DEPARTMENT
cific context.388 Here, in the context of the Elections Clause, the Court

found that the function of the “Legislature” was lawmaking and that

this function could be performed by the people of Arizona via an

initiative consistent with state law.389 The Court also pointed to dictionary definitions from the time of the Framers; 390 the Framers’

intent in adopting the Elections Clause; 391 the “harmony” between

the initiative process and the Constitution’s “conception of the people

as the font of governmental power;” 392 and the practical consequences of invalidating the Arizona initiative.393

State authority to regulate the times, places, and manner of holding congressional elections 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 rights involved.” 394 The Court has

upheld a variety of state laws designed to ensure that elections—

including federal elections—are fair and honest and orderly.395 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.396 Term limits,

viewed as serving the dual purposes of “disadvantaging a particular class of candidates and evading the dictates of the Qualifica388 Id. at 18.

389 Id.

390 Id. at 24 (noting that “dictionaries, even those in circulation during the founding era, capaciously define the word ‘legislature,’ ” including as “[t]he power that makes

laws” and “the Authority of making laws”).

391 Id. at 25 (“The dominant purpose of the Elections Clause . . . was to empower Congress to override state election rules, not to restrict the way States enact

legislation. . . . [T]he Clause ‘was the Framers’ insurance against the possibility that

a State would refuse to provide for the election of representatives to the Federal

Congress.’ ”).

392 Id. at 30 (“The Framers may not have imagined the modern initiative process in which the people of a State exercise legislative power coextensive with the

authority of an institutional legislature. But the invention of the initiative was in

full harmony with the Constitution’s conception of the people as the font of governmental power.”).

393 Id. at 31, 33 (noting that it would be “perverse” to interpret the term “Legislature” to exclude the initiative, because the initiative is intended to check legislators’ ability to determine the boundaries of the districts in which they run, and that

a contrary ruling would invalidate a number of other state provisions regarding initiatives and referendums).

394 Smiley v. Holm, 285 U.S. 355, 366 (1932).

395 See, 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 (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).

396 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 835 (1995).

Sec. 4—Elections Cl. 1—Times, Places, and Manner

ART. I—LEGISLATIVE DEPARTMENT 131
tions Clause,” crossed this line,397 as did ballot labels identifying

candidates who disregarded voters’ instructions on term limits or

declined to pledge support for them.398 “[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.” 399

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].400

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;

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.

397 U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

398 Cook v. Gralike, 531 U.S. 510 (2001).

399 Thornton, 514 U.S. at 833–34.

400 See Twentieth Amendment.

Sec. 4—Elections Cl. 1—Times, Places, and Manner

132 ART. I—LEGISLATIVE DEPARTMENT
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.401 It may punish perjury committed in testifying before a notary public upon a contested election.402

The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.403 Refusal to permit a person presenting credentials in due form to take

the oath of office does not oust the jurisdiction of the Senate to inquire into the legality of the election.404 Nor does such refusal unlawfully deprive the state that elected such person of its equal suffrage in the Senate.405

“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.406 The Supreme Court upheld this rule in United States

v. Ballin,

407 saying that the capacity of the House to transact busi401 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 616 (1929).

402 In re Loney, 134 U.S. 372 (1890).

403 6 CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 72–74, 180 (1936).

Cf. Newberry v. United States, 256 U.S. 232, 258 (1921).

404 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 614 (1929).

405 279 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).

406 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2895–2905 (1907).

407 144 U.S. 1 (1892).

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections

ART. I—LEGISLATIVE DEPARTMENT 133
ness 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.” 408 The rules of the Senate provide for

the ascertainment of a quorum only by a roll call,409 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.410

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 continuous 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.” 411 If a rule affects private rights, its construction becomes a judicial question. In United States v. Smith,

412 the Court

held that the Senate’s reconsideration of a presidential nominee for

chairman of the Federal Power Commission, after it had confirmed

him and he had taken the oath of office, was not warranted by its

rules and did not deprive the appointee of his title to the office. In

Christoffel v. United States,

413 a sharply divided Court upset a conviction for perjury in a federal district court of a witness who had

denied under oath before a House committee any affiliation with

Communist programs. The reversal was on the ground that, because a quorum of the committee, although 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.414 Four Justices, in an opinion by Justice Jackson, dissented, arguing that, under the rules and practices

408 144 U.S. at 5–6.

409 Rule V.

410 4 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 2910–2915 (1907); 6

CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 645, 646 (1936).

411 United States v. Ballin, 144 U.S. 1, 5 (1892). The Senate is “a continuing

body.” McGrain v. Daugherty, 273 U.S. 135, 181–82 (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.

412 286 U.S. 6 (1932).

413 338 U.S. 84 (1949).

414 338 U.S. at 87–90.

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections

134 ART. I—LEGISLATIVE DEPARTMENT
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.” 415

The Appointments Clause provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall

appoint . . . Judges of the supreme Court, and all other Officers of

the United States, whose Appointments are not herein otherwise

provided for, and which shall be established by Law. . . .” 416 The

Constitution provides that “Each House may determine the Rules

of its Proceedings,” 417 and the Senate has enacted a cloture rule 418

requiring a supermajority vote (60 votes) to close debate on any matter pending before the Senate. Absent the invocation of cloture or

some other means of ending debate, matters can remain before the

Senate indefinitely. The practice of preventing closure is known as

a filibuster. Although no provision of the Constitution expressly requires that the Senate or House act by majority vote in enacting

legislation or in exercising their other constitutional powers, the framers of the Constitution were committed to a majority rule as a general principle.419 These facts have given rise to disagreement as to

the constitutionality of the filibuster as applied to judicial nominees—

disagreement over whether the “Advice and Consent” of the Senate

means the majority of the Senate and not a super-majority. The constitutionality of the filibuster has been challenged in court several

times, but those cases have never reached the merits of the issue.420 More recently, the Senate interpreted its rules to require only

a simple majority to invoke cloture on most nominations.421

415 338 U.S. at 92–95.

416 Art. II, § 2, cl. 2.

417 Art. I, § 5, cl. 2.

418 Rule XXII, par. 2.

419 See, e.g., Federalist No. 58, p. 397 (Cooke ed.; Wesleyan Univ. Press: 1961)

(Madison, responding to objections that the Constitution should have required “more

than a majority . . . for a quorum, and in particular cases, if not in all, more than a

majority of a quorum for a decision,” asserted that such requirements would be inconsistent with majority rule, which is “the fundamental principle of free government”); id., No. 22, p. 138–39 (Hamilton observed that “equal suffrage among the

States under the Articles of Confederation contradicts that fundamental maxim of

republican government which requires that the sense of the majority should prevail”).

420 See, e.g., Common Cause v. Biden, 748 F.3d 1280 (D.C. Cir. 2014); Judicial

Watch, Inc. v. United States Senate, 432 F.3d 359 (D.C. Cir. 2005); Page v. Shelby,

995 F. Supp. 23 (D.D.C. 1998). The constitutionality of the filibuster has been a subject of debate for legal scholars. See, e.g., Josh Chafetz & Michael J. Gerhardt, Debate, Is the Filibuster Constitutional?, 158 U. PA L. REV. PENNUMBRA 245 (2010).

421 159 CONG. REC. S8416–S8418 (daily ed. Nov. 21, 2013).

Sec. 5—Powers and Duties of the Houses Cls. 1–4—Judging Elections

ART. I—LEGISLATIVE DEPARTMENT 135
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.422 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.” 423 It cited with apparent approval the action of the Senate in expelling 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.424

In Powell v. McCormack,

425 a suit challenging the exclusion of

a Member-elect from the House of Representatives, it was argued

that, because 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 House precedents were

to the effect that the House 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. The Court based

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.426

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.” 427 When the Journal of either House is put in evidence

for the purpose of determining whether the yeas and nays were or422 Burton v. United States, 202 U.S. 344 (1906).

423 In re Chapman, 166 U.S. 661 (1897).

424 166 U.S. at 669–70. See 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE

UNITED STATES § 836 (1833).

425 395 U.S. 486 (1969).

426 395 U.S. at 506–12.

427 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).

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136 ART. I—LEGISLATIVE DEPARTMENT
dered, 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.428 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.429

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,430 it is now the rule that congressional legislation “varying”—

decreasing or increasing—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

428 United States v. Ballin, 144 U.S. 1, 4 (1892).

429 Field 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

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).

430 See discussion under Twenty-Seventh Amendment, infra.

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ART. I—LEGISLATIVE DEPARTMENT 137
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.431 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.432 These devices were attacked by dissenting Members of Congress as violating the mandate of clause 1 that

compensation be “ascertained by Law.” However, these challenges

were rejected.433 Thereafter, prior to ratification of the Amendment, Congress, in the Ethics Reform Act of 1989,434 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. A federal court of appeals panel ruled

that the cost-of-living-increase provision did not violate the TwentySeventh Amendment, and that a challenge to the quadrennial pay

raise provision was not ripe.435

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.436 It does not apply to service of process

in either civil 437 or criminal cases.438 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.439

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

431 Pub. L. 90–206, § 225, 81 Stat. 642 (1967), as amended, Pub. L. 95–19, § 401,

91 Stat. 45 (1977), as amended, Pub. L. 99–190, § 135(e), 99 Stat. 1322 (1985).

432 Pub. L. 94–82, § 204(a), 89 Stat. 421.

433 Pressler 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).

434 Pub. 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.

435 Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994).

436 Long v. Ansell, 293 U.S. 76 (1934).

437 293 U.S. at 83.

438 United States v. Cooper, 4 U.S. (4 Dall.) 341 (C.C. Pa. 1800).

439 Williamson v. United States, 207 U.S. 425, 446 (1908).

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138 ART. I—LEGISLATIVE DEPARTMENT
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.” 440 So Justice Harlan explained the significance of the Speech or Debate Clause,

the ancestry of which traces back to a clause in the English Bill of

Rights of 1689 441 and the history of which traces back almost to

the beginning of the development of Parliament as an independent

force.442 “In the American governmental structure the clause serves

the additional function of reinforcing the separation of powers so

deliberately established by the Founders.” 443 “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.” 444

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.’ ” 445

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.” 446 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.” 447 Immunity from civil suit, both in law and equity, and

440 United States v. Johnson, 383 U.S. 169, 178 (1966).

441 “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.

442 United States v. Johnson, 383 U.S. 169, 177–79, 180–83 (1966); Powell v. McCormack, 395 U.S. 486, 502 (1969).

443 United States v. Johnson, 383 U.S. 169, 178 (1966).

444 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).

445 Powell v. McCormack, 395 U.S. 486, 502 (1969), quoting Kilbourn v. Thompson, 103 U.S. 168, 204 (1881).

446 Tenney 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).

447 Gravel 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),

Sec. 6—Rights and Disabilities of Members Cl. 1—Compensation and Immunities

ART. I—LEGISLATIVE DEPARTMENT 139
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,

448 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 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,

449

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’s 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.450 And in Dombrowski v. Eastland,

451 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.452 A committee had conthat 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.

448 103 U.S. 168 (1881). But see Gravel v. United States, 408 U.S. 606, 618–19

(1972).

449 395 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).

450 Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975).

451 387 U.S. 82 (1967). But see the reinterpretation of this case in Gravel v. United

States, 408 U.S. 606, 619–20 (1972). See also 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).

452 Doe v. McMillan, 412 U.S. 306 (1973).

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140 ART. I—LEGISLATIVE DEPARTMENT
ducted 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—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.453

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.454 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.” 455 Press releases and newsletters are

“[v]aluable and desirable” in “inform[ing] the public and other Mem453 It is difficult to assess the effect of the decision because 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 also leaves unresolved 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). And compare Davis v. Passman, 442 U.S. 228, 245, 246

n.24 (1979), with id. at 250–51 (Chief Justice Burger dissenting).

454 Hutchinson v. Proxmire, 443 U.S. 111 (1979).

455 443 U.S. at 126, quoting Gravel v. United States, 408 U.S. 606, 625 (1972).

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ART. I—LEGISLATIVE DEPARTMENT 141
bers,” but neither are essential to the deliberations of the legislative body nor part of the deliberative process.456

Parallel developments may be discerned with respect to the application of a general criminal statute to call into question the legislative conduct and motivation of a Member. Thus, in United States

v. Johnson,

457 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—that the Court found foreclosed by

the Speech or Debate Clause.458

However, in United States v. Brewster,

459 while continuing to

assert that the clause “must be read broadly to effectuate its purpose of protecting the independence of the Legislative branch,” 460

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 legisla456 Hutchinson v. Proxmire, 443 U.S. 111, 130, 132–33 (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, 314–17 (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, 777–78 (1962) (Justice Douglas dissenting).

457 383 U.S. 169 (1966).

458 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 in the negative. Id. at 529, 540.

459 408 U.S. 501 (1972).

460 408 U.S. at 516.

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142 ART. I—LEGISLATIVE DEPARTMENT
tive 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.” 461

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.462

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,

463 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.” 464

Congressional Employees.—Until recently, the Court distinguished between Members of Congress, who were immune from suit

arising out of their legislative activities, and legislative employees

who participate in the same activities under the direction of a Member.465 Thus, in Kilbourn v. Thompson,

466 the sergeant at arms of

the House was held liable for false imprisonment because he ex461 408 U.S. at 526.

462 The 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 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.

463 408 U.S. 606 (1972).

464 408 U.S. at 626.

465 Language 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 Fed. Narcotics Agents, 403

U.S. 388 (1971).

466 103 U.S. 168 (1881).

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ART. I—LEGISLATIVE DEPARTMENT 143
ecuted the resolution ordering Kilbourn arrested and imprisoned.

Dombrowski v. Eastland 467 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,

468

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,

469 accepted a series of contentions urged

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 latter’s 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.” 470 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.” 471

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 said, 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.472 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.” 473 And Powell was interpreted as simply holding that voting to exclude plaintiff, which was

467 387 U.S. 82 (1967).

468 395 U.S. 486 (1969).

469 408 U.S. 606 (1972).

470 408 U.S. at 616–17.

471 408 U.S. at 618.

472 408 U.S. at 618–19.

473 408 U.S. at 619–20.

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144 ART. I—LEGISLATIVE DEPARTMENT
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 or Senators; rather, immunity was unavailable because they engaged in illegal conduct that was not entitled to Speech

or Debate Clause protection. . . . [N]o prior case has held that Members of Congress would be immune if they executed an invalid resolution by themselves carrying out an illegal arrest, or if, in order

to secure information for a hearing, themselves seized the property

or invaded the privacy of a citizen. Neither they nor their aides should

be immune from liability or questioning in such circumstances.” 474

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.” 475 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,476 Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eli474 408 U.S. at 620–21.

475 2 J. STORY, COMMENTARIES ON THE CONSTITUITON OF THE UNITED STATES § 864 (1833).

476 34 Stat. 948 (1907).

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ART. I—LEGISLATIVE DEPARTMENT 145
gible for that office.477 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 Black’s Senate term had still some time

to run. The appointment was defended, however, with the argument that, because Black was only fifty-one at the time, he would

be ineligible for the “increased emolument” for nineteen years and

it was not as to him an increased emolument.478 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, 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.479

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.480 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.481 Government contrac477 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 (1973). See also 89 Stat. 1108 (1975) (reducing the salary of a member

of the Federal Maritime Commission in order to qualify a Representative).

478 The 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).

479 42 Op. Atty. Gen. 381 (Jan. 3, 1969).

480 THE FEDERALIST, No. 76 (Hamilton) (J. Cooke ed. 1961), 514; 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 866–869 (1833).

481 1 HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES § 493 (1907); 6 CANNON’S

PRECEDENTS OF THE HOUSE OF REPRESENTATIVES §§ 63–64 (1936).

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146 ART. I—LEGISLATIVE DEPARTMENT
tors and federal officers who resign before presenting their credentials may be seated as Members of Congress.482

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.483 Members have been unseated for accepting appointment to military office during their terms of congressional office,484

but there are apparently no instances in which a Member-elect has

been excluded for this reason. Because of the difficulty of successfully claiming standing, the issue has never been a litigable matter.485

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 (Sun482 Hinds’, supra §§ 496–499.

483 Cf. RIGHT OF A REPRESENTATIVE IN CONGRESS TO HOLD COMMISSION IN NATIONAL GUARD,

H. REP. NO. 885, 64th Cong., 1st sess. (1916).

484 HINDS’, supra §§ 486–492, 494; CANNON’S, supra §§ 60–62.

485 An effort to sustain standing was rebuffed in Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974).

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

ART. I—LEGISLATIVE DEPARTMENT 147
days 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 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.486 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.487

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.488 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

486 THE FEDERALIST, No. 58 (J. Cooke ed. 1961), 392–395 (Madison). See United

States v. Munoz-Flores, 495 U.S. 385, 393–395 (1990).

487 The 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).

488 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 880 (1833).

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

148 ART. I—LEGISLATIVE DEPARTMENT
revenue to support Government generally.489 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.490

Neither was a bill that provided that the District of Columbia should

raise by taxation and pay to designated railroad companies a specified sum for the elimination of grade crossings and the construction of a railway station.491 The substitution of a corporation tax

for an inheritance tax,492 and the addition of a section imposing an

excise tax upon the use of foreign-built pleasure yachts,493 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.494 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.495 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.496 A bill becomes a law on the date of its approval by

the President.497 When no time is fixed by the act it is effective from

the date of its approval,498 which usually is taken to be the first

moment of the day, fractions of a day being disregarded.499

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. . . .

489 United States v. Munoz-Flores, 495 U.S. 385 (1990).

490 Twin City Bank v. Nebeker, 167 U.S. 196 (1897).

491 Millard v. Roberts, 202 U.S. 429 (1906).

492 Flint v. Stone Tracy Co., 220 U.S. 107, 143 (1911).

493 Rainey v. United States, 232 U.S. 310 (1914).

494 La Abra Silver Mining Co. v. United States, 175 U.S. 423, 453 (1899).

495 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).

496 Gardner v. The Collector, 73 U.S. (6 Wall.) 499 (1868).

497 73 U.S. at 504. See also Burgess v. Salmon, 97 U.S. 381, 383 (1878).

498 Matthews v. Zane, 20 U.S. (7 Wheat.) 164, 211 (1822).

499 Lapeyre v. United States, 84 U.S. (17 Wall.) 191, 198 (1873).

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

ART. I—LEGISLATIVE DEPARTMENT 149
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.” 500 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.” 501 The Court asserted that “[w]e should

not adopt a construction which would frustrate either of these purposes.” 502

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 lineitem veto, but, again, nothing passed.503

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,

504 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

500 Wright v. United States, 302 U.S. 583 (1938).

501 302 U.S. at 596.

502 302 U.S. at 596.

503 See 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 (National Legal Center for the Public Interest, 1988) (essays).

504 279 U.S. 655 (1929).

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

150 ART. I—LEGISLATIVE DEPARTMENT
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.” 505 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 Congress 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.” 506

However, in Wright v. United States,

507 the Court held that the

President’s return of a bill to the Secretary of the Senate on the

tenth day after presentment, during a three-day adjournment by

the originating House only, 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.” 508 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.” 509 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.” 510

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

505 279 U.S. at 680.

506 279 U.S. at 684.

507 302 U.S. 583 (1938).

508 302 U.S. at 589–90.

509 302 U.S. at 589.

510 302 U.S. at 595.

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

ART. I—LEGISLATIVE DEPARTMENT 151
to review the issue again. But, in Kennedy v. Sampson,

511 an appellate court held that a return is not prevented by an intra-session

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.512 After a bill becomes law,

of course, the President has no authority to repeal it. Asserting this

truism, the Court in The Confiscation Cases 513 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 1862.514

Presentation of Resolutions

The purpose of clause 3, the Orders, Resolutions, and Votes Clause

(ORV Clause), is not readily apparent. For years it was assumed

that the Framers inserted the clause to prevent Congress from evading the veto clause by designating as something other than a bill

measures intended to take effect as laws.515 Why a separate clause

was needed for this purpose has not been explained. Recent scholarship presents a different possible explanation for the ORV Clause—

that it was designed to authorize delegation of lawmaking power to

a single House, subject to presentment, veto, and possible two511 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 in 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,

412 F. Supp. 353 (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 intrasession 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 repudiated 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).

512 Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919).

513 87 U.S. (20 Wall.) 92 (1874).

514 12 Stat. 589 (1862).

515 See 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (rev. ed.

1937), 301–302, 304–305; 2 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED

STATES § 889, at 335 (1833).

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

152 ART. I—LEGISLATIVE DEPARTMENT
House veto override.516 If construed literally, the clause could have

bogged down the intermediate stages of the legislative process, and

Congress made practical adjustments. At the request of the Senate, the Judiciary Committee in 1897 published a comprehensive

report detailing how the clause had been interpreted over the years.

Briefly, it was shown that the word “necessary” in the clause had

come to refer to the necessity for law-making; that is, any “order,

resolution, or vote” must be submitted if it is to have the force of

law. 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 concurrent resolutions merely expressing

the views or “sense” of the Congress.517

Although the ORV Clause excepts only adjournment resolutions and makes no explicit reference to resolutions proposing constitutional amendments, the practice and understanding, beginning with the Bill of Rights, has been that resolutions proposing

constitutional amendments need not be presented to the President

for veto or approval. Hollingsworth v. Virginia,

518 in which the Court

rejected a challenge to the validity of the Eleventh Amendment based

on the assertion that it had not been presented to the President, is

usually cited for the proposition that presentation of constitutional

amendment resolutions is not required.519

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,520 and was really furthered by the necessities of providing for national security and foreign affairs immediately prior to and during World War II.521 The

proliferation of “congressional veto” provisions in legislation over the

516 Seth Barrett Tillman, A Textualist Defense of Art. I, Section 7, Clause 3: Why

Hollingsworth v. Virginia was Rightly Decided, and Why INS v. Chadha was Wrongly

Reasoned, 83 TEX. L. REV. 1265 (2005).

517 S. REP. NO. 1335, 54th Congress, 2d Sess.; 4 HINDS’ PRECEDENTS OF THE HOUSE

OF REPRESENTATIVES § 3483 (1907).

518 3 U.S. (3 Dall.) 378 (1798).

519 Although Hollingsworth did not necessarily so hold (see Tillman, supra), the

Court has reaffirmed this interpretation. See Hawke v. Smith, 253 U.S. 221, 229

(1920) (in Hollingsworth “this court settled that the submission of a constitutional

amendment did not require the action of the President”); INS v. Chadha, 462 U.S.

919, 955 n.21 (1983) (in Hollingsworth the Court “held Presidential approval was

unnecessary for a proposed constitutional amendment”).

520 Act of June 30, 1932, § 407, 47 Stat. 414.

521 See, 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,

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

ART. I—LEGISLATIVE DEPARTMENT 153
years raised a series of interrelated constitutional questions.522 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.523

In INS v. Chadha,

524 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.525 In the words of dissenting Justice White, the

Court in Chadha “sound[ed] the death knell for nearly 200 other

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.

522 From 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.

523 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).

524 462 U.S. 919 (1983).

525 Shortly 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

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

154 ART. I—LEGISLATIVE DEPARTMENT
statutory provisions in which Congress has reserved a ‘legislative

veto.’ ” 526

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.” 527

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 appointments, 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.” 528

The breadth of the Court’s ruling in Chadha was evidenced in

its 1986 decision in Bowsher v. Synar.

529 Among that case’s rationales for holding the Deficit Control Act unconstitutional was 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 particiform of committee veto, a provision prohibiting the availability of certain funds for

a particular purpose without the prior approval of the Committees on Appropriations.

526 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.

527 462 U.S. at 952 (citation omitted).

528 462 U.S. at 955–56.

529 478 U.S. 714 (1986). See also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991).

Sec. 7—Bills and Resolutions Cls. 1–3—Legislative Process

ART. I—LEGISLATIVE DEPARTMENT 155
pation ends. Congress can thereafter control the execution of its enactment only indirectly—by passing new legislation.” 530 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.531 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.” 532 In Clinton v. City of New York,

533

the Court held the Act unconstitutional because it did not comply

with the Presentment Clause.

Although Congress in passing the Act considered itself to have

been delegating power,534 and although the dissenting Justices would

have upheld the Act as a valid delegation,535 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 Clause’s “single, finely

wrought and exhaustively considered, procedure” for enacting or re530 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.

531 Pub. L. 104–130, 110 Stat. 1200, codified in part at 2 U.S.C. §§ 691–92.

532 Id. at § 691(a)(A).

533 524 U.S. 417(1998).

534 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”).

535 524 U.S. at 453 (Justice Scalia concurring in part and dissenting in part);

id. at 469 (Justice Breyer dissenting).

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156 ART. I—LEGISLATIVE DEPARTMENT
pealing a law.536 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.537

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 character of this power by saying from time to time that it “reaches

every subject,” 538 that it is “exhaustive” 539 or that it “embraces every conceivable power of taxation.” 540 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 541 and Miles v.

Graham542 that the inclusion of the salaries received by federal judges

536 524 U.S. at 438–39 (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).

537 524 U.S. at 439.

538 License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867).

539 Brushaber v. Union Pac. R.R., 240 U.S. 1 (1916).

540 240 U.S. at 12.

541 253 U.S. 245 (1920).

542 268 U.S. 501 (1925).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

ART. I—LEGISLATIVE DEPARTMENT 157
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.

543 The specific ruling of Collector v. Day 544 that the salary of a state officer is immune to federal

income taxation also has been overruled.545 But the principle underlying that decision—that Congress may not lay a tax that would

impair the sovereignty of the states—is still recognized as retaining some vitality.546

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,

547 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.” 548 When South Carolina embarked upon the

business of dispensing alcoholic beverages, its agents were held to

543 307 U.S. 277 (1939).

544 78 U.S. (11 Wall.) 113 (1871).

545 Graves 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 farreaching 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).

546 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.

547 25 U.S. (12 Wheat.) 419, 444 (1827).

548 Snyder v. Bettman, 190 U.S. 249, 254 (1903).

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158 ART. I—LEGISLATIVE DEPARTMENT
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.549

Another decision marking a clear departure from the logic of

Collector v. Day was Flint v. Stone Tracy Co.,

550 in which 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 because 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 that it allowed 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,551 excise taxes on the transportation of merchandise in performance of a contract to sell and

deliver it to a county,552 on the importation of scientific apparatus

by a state university,553 on admissions to athletic contests sponsored by a state institution, the net proceeds of which were used to

further its educational program,554 and on admissions to recreational facilities operated on a nonprofit basis by a municipal corporation.555 Income derived by independent engineering contractors from

the performance of state functions,556 the compensation of trustees

appointed to manage a street railway taken over and operated by a

state,557 profits derived from the sale of state bonds,558 or from oil

produced by lessees of state lands,559 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 govern549 South Carolina v. United States, 199 U.S. 437 (1905). See also Ohio v. Helvering, 292 U.S. 360 (1934).

550 220 U.S. 107 (1911).

551 Greiner v. Lewellyn, 258 U.S. 384 (1922).

552 Wheeler Lumber Co. v. United States, 281 U.S. 572 (1930).

553 Board of Trustees v. United States, 289 U.S. 48 (1933).

554 Allen v. Regents, 304 U.S. 439 (1938).

555 Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949).

556 Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1926).

557 Helvering v. Powers, 293 U.S. 214 (1934).

558 Willcuts v. Bunn, 282 U.S. 216 (1931).

559 Helvering v. Producers Corp., 303 U.S. 376 (1938), overruling Burnet v. Coronado

Oil & Gas Co., 285 U.S. 393 (1932).

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ART. I—LEGISLATIVE DEPARTMENT 159
ment.” 560 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 government 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.” 561

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, the Court has stated that

“all agree that not all of the former immunity is gone.” 562 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

to concur with any single opinion in the latter case leaves the question very much in doubt. In Helvering v. Gerhardt,

563 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 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.” 564

560 South Carolina v. Baker, 485 U.S. 505, 517 (1988).

561 485 U.S. at 524–25.

562 New York v. United States, 326 U.S. 572, 584 (1946) (concurring opinion of

Justice Rutledge).

563 304 U.S. 405 (1938).

564 304 U.S. at 419–20.

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160 ART. I—LEGISLATIVE DEPARTMENT
The second attempt to formulate a general doctrine was made

in New York v. United States,

565 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.” 566 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.” 567 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.” 568 In a later

case dealing with state immunity the Court sustained the tax on

the second ground mentioned in 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.569

Articulation of the current approach may be found in South Carolina v. Baker.

570 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

565 326 U.S. 572 (1946).

566 326 U.S. at 584.

567 326 U.S. at 589–90.

568 326 U.S. at 596.

569 Wilmette Park Dist. v. Campbell, 338 U.S. 411 (1949). Cf. Massachusetts v.

United States, 435 U.S. 444 (1978).

570 485 U.S. 505 (1988).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

ART. I—LEGISLATIVE DEPARTMENT 161
[other government], as long as the tax does not discriminate against

the [other government] or those with which it deals.” 571 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.” 572

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.573 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.” 574 Even the geographical limitation is a loose one, at least if one follows United

States v. Ptasynski,

575 in which 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,” 576 the fact that Congress described the

exemption in geographic terms did not condemn the provision.

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.577 A taxing statute does not fail of

the prescribed uniformity because its operation and incidence may

be affected by differences in state laws.578 A federal estate tax law

that permitted deduction for a like tax paid to a state was not rendered invalid by the fact that one state levied no such tax.579 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 mea571 485 U.S. at 523.

572 485 U.S. at 524 n.14.

573 See also Article I, § 9, cl. 4.

574 LaBelle Iron Works v. United States, 256 U.S. 377 (1921); Brushaber v. Union

Pac. R.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112 U.S. 580 (1884).

575 462 U.S. 74 (1983).

576 462 U.S. at 85.

577 Knowlton v. Moore, 178 U.S. 41 (1900).

578 Fernandez 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).

579 Florida v. Mellon, 273 U.S. 12 (1927).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

162 ART. I—LEGISLATIVE DEPARTMENT
sures for unincorporated territories.580 Indeed, in Binns v. United

States,

581 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

Congress has broad discretion in methods of taxation, and may,

under the Necessary and Proper Clause, regulate business within

a state in order to tax it more effectively. For instance, the Court

has sustained regulations regarding the packaging of taxed articles

such as tobacco 582 and oleomargarine,583 which were ostensibly designed to prevent fraud in the collection of the tax. It has also upheld measures taxing drugs 584 and firearms,585 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.586

Even where a tax is coupled with regulations that have no possible relation to the efficient collection of the tax, and 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.587 “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

580 Downes v. Bidwell, 182 U.S. 244 (1901).

581 194 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.

582 Felsenheld v. United States, 186 U.S. 126 (1902).

583 In re Kollock, 165 U.S. 526 (1897).

584 United States v. Doremus, 249 U.S. 86 (1919). Cf. Nigro v. United States,

276 U.S. 332 (1928).

585 Sonzinsky v. United States, 300 U.S. 506 (1937).

586 Without 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).

587 McCray v. United States, 195 U.S. 27 (1904).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

ART. I—LEGISLATIVE DEPARTMENT 163
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

power of the lawmakers to realize by legislation directly addressed

to their accomplishment.’ ” 588

In some cases, however, the structure of a taxation scheme is

such as to suggest that the Congress actually intends to regulate

under a separate constitutional authority. As long as such separate

authority is available to Congress, the imposition of a tax as a penalty for such regulation is valid.589 On the other hand, where Congress had levied a heavy tax upon liquor dealers who operated in

violation of state law, the Court held that this tax was unenforceable after the repeal of the Eighteenth Amendment, because the National Government had no power to impose an additional penalty

for infractions of state law.590

Discerning whether Congress, in passing a regulation that purports to be under the taxing authority, intends to exercise a separate constitutional authority, requires evaluation of a number of factors.591 Under the Child Labor Tax Case,

592 decided in 1922, the

Court, which had previously rejected a federal prohibition of child

labor laws as being outside of the Commerce Clause,593 also rejected a tax on companies using such labor. First, the Court noted

that the law in question set forth a specific and detailed regulatory

scheme—including the ages, industry, and number of hours allowed—

establishing when employment of underage youth would incur taxation. Second, the taxation in question functioned as a penalty, in

that it was set at one-tenth of net income per year, regardless of

the nature or degree of the infraction. Third, the tax had a scienter

requirement, so that the employer had to know that the child was

below a specified age in order to incur taxation. Fourth, the statute

made the businesses subject to inspection by officers of the Secretary of Labor, positions not traditionally charged with the enforcement and collection of taxes.

588 United States v. Sanchez, 340 U.S. 42, 45 (1950). See also Sonzinsky v. United

States, 300 U.S. 506, 513–14 (1937).

589 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 393 (1940). See also

Head Money Cases, 112 U.S. 580, 596 (1884).

590 United States v. Constantine, 296 U.S. 287 (1935).

591 Hill v. Wallace, 259 U.S. 44 (1922); Helwig v. United States, 188 U.S. 605

(1903).

592 Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922).

593 Hammer v. Dagenhart, 247 U.S. 251 (1918).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

164 ART. I—LEGISLATIVE DEPARTMENT
More recently, in National Federation of Independent Business

(NFIB) v. Sebelius,

594 the Court upheld as an exercise of the taxing

authority a requirement under the Patient Protection and Affordable Care Act (ACA) 595 that mandates certain individuals to maintain a minimum level of health insurance. Failure to purchase health

insurance may subject a person to a monetary penalty, administered through the tax code. Chief Justice Roberts, in a majority holding,596 used a functional approach in evaluating the authority for

the requirement, so that the use of the term “penalty” in the ACA 597

to describe the enforcement mechanism for the individual mandate

was found not to be determinative. The Court also found that the

latter three factors identified in the Child Labor Tax Case (penal

intent, scienter, enforcement by regulatory agency) were not present with respect to the individual mandate. Unlike the child labor

taxation scheme, the tax level under the ACA is established based

on traditional tax variables such as taxable income, number of dependents and joint filing status; there is no requirement of a knowing violation; and the tax is collected by the Internal Revenue Service.

The majority, however, did not appear to have addressed the

first Child Labor Case factor: whether the ACA set forth a specific

and detailed course of conduct and imposed an exaction on those

who transgress its standard. The Court did note that the law did

not bear characteristics of a regulatory penalty, as the cost of the

tax was far outweighed by the cost of obtaining health insurance,

making the payment of the tax a reasonable financial decision.598

Still, the majority’s discussion suggests that, for constitutional purposes, the prominence of regulatory motivations for tax provisions

may become less important than the nature of the exactions imposed and the manner in which they are administered.

In those areas where activities are subject to both taxation and

regulation, the taxing authority is not limited from reaching activities otherwise prohibited. For instance, Congress may tax an activity, such as the business of accepting wagers,599 regardless of whether

594 567 U.S. ___, No. 11–393, slip op. (2012).

595 Pub. L. 111–148, as amended.

596 For this portion of the opinion, Justice Roberts was joined by Justices Ginsburg,

Breyer, Sotomayor and Kagan.

597 26 U.S.C. §§ 5000A(c), (g)(1).

598 567 U.S. ___, No. 11–393, slip op. at 35–36 (2012).

599 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).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

ART. I—LEGISLATIVE DEPARTMENT 165
it is permitted or prohibited by the laws of the United States 600 or

by those of a state.601 However, Congress’s authority to regulate using the taxing power “reaches only existing subjects.” 602 Thus, socalled federal “licenses,” so far as they relate to topics outside Congress’s constitutional authority, merely express, “the purpose of the

government not to interfere . . . with the trade nominally licensed,

if the required taxes are paid.” In those instance, whether the “licensed” trade shall be permitted at all is a question that remains a

decision by the state.603

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.” 604 After

being debated for nearly a century and a half, the constitutionality

of protective tariffs was finally settled by the Supreme Court’s unanimous decision in J. W. Hampton, Jr. & Co. v. United States, which

rejected a contention “that the only power of Congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that

of revenue raising.” 605

Chief Justice Taft, writing for the Court in Hampton, 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 govern600 United States v. Yuginovich, 256 U.S. 450 (1921).

601 United States v. Constantine, 296 U.S. 287, 293 (1935).

602 License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867).

603 License Tax Cases, 72 U.S. at 471 (1867).

604 1 Stat. 24 (1789).

605 276 U.S. 394, 411 (1928).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

166 ART. I—LEGISLATIVE DEPARTMENT
ment, the existence of other motives in the selection of the subjects

of taxes cannot invalidate Congressional action.” 606

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.” 607 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,608 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, broad

meaning of the clause; 609 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.610 From early

times, Congress has acted upon Hamilton’s interpretation. Appropriations for subsidies 611 and for an ever-increasing variety of “internal improvements” 612 constructed by the Federal Government,

had their beginnings in the administrations of Washington and Jefferson.613 Since 1914, federal grants-in-aid, which are sums of money

606 276 U.S. at 412.

607 3 WRITINGS OF THOMAS JEFFERSON 147–149 (Library Edition, 1904).

608 See W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED

STATES (1953).

609 THE FEDERALIST, Nos. 30 and 34 (J. Cooke ed. 1961) 187–193, 209–215.

610 Id. at No. 41, 268–78.

611 1 Stat. 229 (1792).

612 2 Stat. 357 (1806).

613 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

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

ART. I—LEGISLATIVE DEPARTMENT 167
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 their use, have become

commonplace.

The scope of the national spending power came 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 614 and Smith v. Kansas City

Title & Trust Co.,

615 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,

616 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 Ry.,

617 however, the Court

invoked “the great power of taxation to be exercised for the common defence and general welfare” 618 to sustain the right of the Federal Government to acquire land within a state for use as a national park.

Finally, in United States v. Butler,

619 the Court gave its unqualified endorsement to Hamilton’s views on the taxing power. Justice

Roberts wrote 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 enumerated 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

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).

614 California v. Pacific R.R., 127 U.S. 1 (188).

615 255 U.S. 180 (1921).

616 262 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).

617 160 U.S. 668 (1896).

618 160 U.S. at 681.

619 297 U.S. 1 (1936). See also Cleveland v. United States, 323 U.S. 329 (1945).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

168 ART. I—LEGISLATIVE DEPARTMENT
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 has noticed the question, but has never found it necessary to

decide which is the true construction. Mr. 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 Mr. 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.” 620

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,621 and has even questioned whether the restriction is judicially enforceable.622 Dispute, such as it is, turns on the conditioning

of funds.

As with its other powers, Congress may enact legislation “necessary and proper” to effectuate its purposes in taxing and spending. In upholding a law making it a crime to bribe state and local

officials who administer programs that receive federal funds, the Court

declared that Congress has authority “to see to it that taxpayer dollars . . . are in fact spent for the general welfare, and not frittered

away in graft or on projects undermined when funds are siphoned

off or corrupt public officers are derelict about demanding value for

dollars.” 623 Congress’s failure to require proof of a direct connection between the bribery and the federal funds was permissible, the

Court concluded, because “corruption does not have to be that limited to affect the federal interest. Money is fungible, bribed officials

620 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).

621 Id. at 207 (citing Helvering v. Davis, 301 U.S. 619, 640, 645 (1937)).

622 Buckley v. Valeo, 424 U.S. 1, 90–91 (1976); South Dakota v. Dole, 483 U.S.

203, 207 n.2 (1987).

623 Sabri v. United States, 541 U.S. 600, 605 (2004).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

ART. I—LEGISLATIVE DEPARTMENT 169
are untrustworthy stewards of federal funds, and corrupt contractors do not deliver dollar-for-dollar value.” 624

Social Security Act Cases.—Although the Court in Butler held

that the spending power is not limited by the specific grants of power

contained in Article I, § 8, the Court found, nevertheless, that the

spending power was qualified by the Tenth Amendment, and on this

ground ruled 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.” 625 Within little more than a year this decision was narrowed

by Steward Machine Co. v. Davis,

626 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, and that the credit allowed for state taxes bore a reasonable relation “to the fiscal need

subserved by the tax in its normal operation,” 627 because 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.” 628

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.629 The Court upheld

Congress’s power to do so in Oklahoma v. Civil Service Commis624 541 U.S. at 606.

625 United States v. Butler, 297 U.S. 1, 70 (1936). 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, and that the challenged provisions served that end.

United States v. Butler, 297 U.S. 1, 84–86 (1936).

626 301 U.S. 548 (1937).

627 301 U.S. at 586, 591.

628 301 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).

629 In Steward Machine Company v. Davis, 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).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

170 ART. I—LEGISLATIVE DEPARTMENT
sion.

630 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.” 631

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.” 632

The Court has set forth several standards purporting to channel Congress’s discretion in attaching grant conditions.633 To date

only one statute, discussed below, has 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.634 Second, because a grant is

“much in the nature of a contract” offer that the states may accept

or reject,635 Congress must set out the conditions unambiguously,

630 330 U.S. 127 (1947).

631 330 U.S. 127, 143 (1947). This is not to say that Congress may police the

effectiveness of its spending only by means of attaching conditions to grants; Congress may also rely on criminal sanctions to penalize graft and corruption that may

impede its purposes in spending programs. Sabri v. United States, 541 U.S. 600 (2004).

632 Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief Justice Burger’s opinion for the Court 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).

633 See South Dakota v. Dole, 483 U.S. 203, 207–12 (1987).

634 483 U.S. at 207 (1987). See discussion under Scope of the Power, supra.

635 Barnes v. Gorman, 536 U.S. 181, 186 (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).

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ART. I—LEGISLATIVE DEPARTMENT 171
so that the states may make an informed decision.636 Third, the Court

continues to state that the conditions must be related to the federal interest for which the funds are expended,637 but it has never

found a spending condition deficient under this part of the test.638

Fourth, the power to condition funds may not be used to induce

the states to engage in activities that would themselves be unconstitutional.639 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.” 640 Certain federalism restraints on other federal powers seem

not to be relevant to spending conditions.641

In 2010, Congress passed the Patient Protection and Affordable

Care Act (ACA),642 which established a comprehensive health care

system for the United States. As part of this new system, the Act

expanded which persons were eligible for Medicaid, which is financed jointly by the federal and state governments. Failure of a

state to implement such expansion could, in theory, have resulted

in the withholding of all Medicaid reimbursements, including payments for persons previously covered by the Medicaid program. In

National Federation of Independent Business (NFIB) v. Sebelius,

643

seven Justices (in two separate opinions) held that the require636 South Dakota v. Dole, 483 U.S. at 207. 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 (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, 536 U.S. 273 (2002) (no

private right of action was created by the Family Educational Rights and Privacy

Act); Arlington Central School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291 (2006)

(because Individuals with Disabilities Education Act, which was enacted pursuant

to the Spending Clause, does not furnish clear notice to states that prevailing parents may recover fees for services rendered by experts in IDEA actions, it does not

authorize recovery of such fees).

637 South Dakota v. Dole, 483 U.S. at 207–08. See Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937); Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275,

295 (1958).

638 The relationship in South Dakota v. Dole, 483 U.S. at 208–09, 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.

639 South Dakota v. Dole, 483 U.S. at 210–11.

640 Steward Machine Co. v. Davis, 301 U.S. 548, 589–90 (1937); South Dakota v.

Dole, 483 U.S. 203, 211–12. See 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).

641 South Dakota v. Dole, 483 U.S. at 210 (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”).

642 Pub. L. 111–148, as amended.

643 567 U.S. ___, No. 11–393, slip op. (2012).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

172 ART. I—LEGISLATIVE DEPARTMENT
ment that states either comply with the requirements of the Medicaid expansion under the ACA or lose all Medicaid funds violated

the Tenth Amendment.644 The Court held, however, that withholding of just the funds associated with that expansion raised no significant constitutional concerns, essentially making the Medicaid expansion voluntary.

Chief Justice Roberts’ controlling opinion 645 in NFIB held that

the ACA Medicaid expansion created a “new” and “independent” program.646 As Congress’s power to direct state activities under the Spending Clause is in the nature of a contract, Justice Robert’s opinion

suggests that the only changes that could be made to Medicaid would

be those that could be reasonably anticipated by the states as they

entered the original program, when only four categories of persons

in financial need were covered: the disabled, the blind, the elderly,

and needy families with dependent children. The Medicaid expansion arguably changed the nature of the program by requiring recipient states, as part of a universal health care system, to meet

the health care needs of the entire nonelderly population with income below 133% of the poverty level.647 Thus, the Medicaid expansion “accomplishe[d] a shift in kind, not merely degree.” 648

644 Chief Justice Robert’s opinion was joined by Justices Breyer and Kagan on

this point, while Justices Scalia, Kennedy, Thomas and Alito made a similar point

in a joint dissenting opinion. The authoring Justices of the two opinions, however,

did not join in either the reasoning or judgment of the other opinion.

645 “When a fragmented Court decides a case and no single rationale explaining

the result enjoys the assent of five Justices, the holding of the Court may be viewed

as that position taken by those Members who concurred in the judgments on the

narrowest grounds.’ ” Marks v. United States, 430 U.S. 188, 193 (1977) (citation omitted). Justice Roberts opinion is arguably narrower than the dissent, because, as discussed below, his opinion found a constitutional violation based on the presence of

both a “new” “independent” program and a coercive loss of funds, while the dissenting opinion would have found the coercive loss of funds sufficient. NFIB, 567 U.S.

___, slip op. at 38–42 (Justices Scalia, Kennedy, Thomas and Alito dissenting).

646 567 U.S. ___, slip op. at 50, 53–54. It might be argued that the Roberts’ opinion, with its emphasis on “new” and “independent” programs, is implicitly addressing the “relatedness” inquiry of South Dakota v. Dole. Justice Roberts’ opinion, however, does not explicitly discuss the issue, and an argument can be made that there

is a significant difference between the two inquiries. As noted, the “relatedness inquiry” in Dole was identified as a limitation on the Spending Clause, while the NFIB

discussion of “new” and “independent programs” emphasized the concerns of the Tenth

Amendment. Second, under Dole, the “relatedness” and “coercion” inquiries appear

to be disjunctive, in that failure to comply with either of these factors would mean

that the statute was unconstitutional. Under NFIB, however, the “new” and “independent” program inquiry and the “coercion” inquiry appear to be conjunctive, so

that a grant condition must apparently fail both tests to be found unconstitutional.

647 Justice Roberts also noted that Congress created a separate funding provision to cover the costs of providing services to any person made newly eligible by

the expansion, and mandated that newly eligible persons would receive a level of

coverage that is less comprehensive than the traditional Medicaid benefit package.

648 567 U.S. ___, slip op. at 53.

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ART. I—LEGISLATIVE DEPARTMENT 173
Once Justice Roberts established that the Medicaid expansion

was a “new” and “independent” program, he then turned to whether

withdrawal of existing Medicaid funds for failure to implement the

expansion was coercive. Justice Roberts noted that the threatened

loss of Medicaid funds was “over 10 percent of most State’s total

revenue,” which he characterized as a form of “economic dragooning” which put a “gun to the head” of the states.649 Justice Roberts

contrasted this amount with the amount of federal transportation

funds threatened to be withheld from South Dakota in Dole, which

he characterized as less than half of one percent of South Dakota’s

budget. How courts are to consider grant withdrawals between 10

percent and one-half of 1 percent, however, is not addressed by the

Roberts’ opinion, and Justice Roberts declined to speculate where

such a line would be drawn.

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.650 Although the Court has allowed beneficiaries of conditional grant programs to sue to compel states to comply with the federal conditions,651 more recently the Court has required that 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,652

and some of these laws are enforceable against the states.653

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 produc649 567 U.S. ___, slip op. at 10, 51–52.

650 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).

651 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

(1992), with Wright v. Roanoke Redevelopment & Housing Auth., 479 U.S. 418 (1987).

652 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.

653 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).

Sec. 8—Powers of Congress Cl. 1—Power To Tax and Spend

174 ART. I—LEGISLATIVE DEPARTMENT
tion was segregated and paid into the Philippine Treasury.654 In Helvering v. Davis,

655 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’s being found 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.656 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.657 Curiously

enough, this power was first invoked to assist the United States to

collect a debt due to it. In United States v. Fisher,

658 the Supreme

Court sustained a statute that 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 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.” 659

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.” 660 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 mak654 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).

655 301 U.S. 619 (1937).

656 United States v. Realty Co., 163 U.S. 427 (1896); Pope v. United States, 323

U.S. 1, 9 (1944).

657 Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).

658 6 U.S. (2 Cr.) 358 (1805).

659 6 U.S. at 396.

660 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 144, 308–309

(rev. ed. 1937).

Sec. 8—Powers of Congress Cl. 2—Borrowing Power

ART. I—LEGISLATIVE DEPARTMENT 175
ing 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.” 661 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.662

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.663

Clause 3. The Congress shall have Power * * * To regulate

Commerce with foreign Nations, and among the several States,

and with the Indian Tribes.

POWER TO REGULATE COMMERCE

Purposes Served by the Grant

The Commerce 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 that reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from state legislation.664 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

661 Id. at 310.

662 Knox v. Lee (Legal Tender Cases), 79 U.S. (12 Wall.) 457 (1871), overruling

Hepburn v. Griswold, 75 U.S. (8 Wall.) 603 (1870).

663 Perry v. United States, 294 U.S. 330, 351 (1935). See also Lynch v. United

States, 292 U.S. 571 (1934).

664 E. PRENTICE & J. EGAN, THE COMMERCE CLAUSE OF THE FEDERAL CONSTITUTION 14

(1898).

Sec. 8—Powers of Congress Cl. 2—Borrowing Power

176 ART. I—LEGISLATIVE DEPARTMENT
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” 665 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,

666 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.667 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.

“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.” 668

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.669

Marshall qualified the word “intercourse” with the word “commercial,” thus retaining the element of monetary transactions.670

But, today, “commerce” in the constitutional sense, and hence “interstate commerce,” covers every species of movement of persons and

665 OED: “com– together, with, + merx, merci- merchandise, ware.”

666 22 U.S. (9 Wheat.) 1 (1824).

667 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.”

668 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189 (1824).

669 22 U.S. at 190–94.

670 22 U.S. at 193.

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ART. I—LEGISLATIVE DEPARTMENT 177
things, whether for profit or not, across state lines,671 every species

of communication, every species of transmission of intelligence, whether

for commercial purposes or otherwise,672 every species of commercial negotiation that will involve sooner or later an act of transportation of persons or things, or the flow of services or power, across

state lines.673

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 neither interstate commerce nor bore a 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; 674 it held

insurance transactions carried on across state lines not to be commerce,675 and that exhibitions of baseball between professional teams

that travel from state to state were not in commerce.676 Similarly,

it held that the Commerce Clause was not applicable to the making of contracts for the insertion of advertisements in periodicals in

671 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.

672 E.g., United States v. Simpson, 252 U.S. 465 (1920); Caminetti v. United States,

242 U.S. 470 (1917).

673 “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, 549–50

(1944).

674 Kidd 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); see also Carter v. Carter

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

675 Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869); see also 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).

676 Federal 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, 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

178 ART. I—LEGISLATIVE DEPARTMENT
another state 677 or to the making of contracts for personal services

to be rendered in another state.678

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.679

The activities of Group Health Association, Inc., which serves only

its own members, are “trade” and capable of becoming interstate

commerce; 680 the business of insurance when transacted between

an insurer and an insured in different states is interstate commerce.681 But most important of all there was the development of,

or more accurately the return to,682 the rationales by which manufacturing,683 mining,684 business transactions,685 and the like, which

are antecedent to or subsequent 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 exclude “the exclusively internal commerce of a state.” Although, 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 external 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

677 Blumenstock Bros. v. Curtis Pub. Co., 252 U.S. 436 (1920).

678 Williams 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).

679 Associated Press v. United States, 326 U.S. 1 (1945).

680 American Medical Ass’n v. United States, 317 U.S. 519 (1943). Cf. United

States v. Oregon Medical Society, 343 U.S. 326 (1952).

681 United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533 (1944).

682 “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). See also id. at 195–196.

683 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

684 Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). See also Hodel

v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264, 275–283 (1981); Mulford v.

Smith, 307 U.S. 38 (1939) (agricultural production).

685 Swift & 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 179
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.” 686

Recognition of an “exclusively internal” commerce of a state, or

“intrastate commerce” in today’s terms, was regarded as setting out

an area of state concern that Congress was precluded from reaching.687 Although these cases seemingly visualized Congress’s power

arising only when there was an actual crossing of state boundaries, this view ignored Marshall’s equation of intrastate commerce

that affects 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’s regulatory power,688 with

the emphasis on the interrelationships of industrial production to

interstate commerce 689 but especially with the emphasis that even

minor transactions have an effect on interstate commerce 690 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.691 “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.” 692

686 22 U.S. (9 Wheat.) 1, 194, 195 (1824).

687 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).

688 Swift & 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).

689 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

690 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).

691 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).

692 Gibbons 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’s 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

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

180 ART. I—LEGISLATIVE DEPARTMENT
Regulate.— “We are now arrived at the inquiry—what is this

power?” continued the Chief Justice. “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.” 693

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 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.” 694 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.” 695

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).

693 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196–197 (1824).

694 Brooks v. United States, 267 U.S. 432, 436–37 (1925).

695 United States v. Darby, 312 U.S. 100, 114 (1941).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 181
The power has been exercised to enforce majority conceptions

of morality,696 to ban racial discrimination in public accommodations,697 and to protect the public against evils both natural and

contrived by people.698 The power to regulate interstate commerce

is, therefore, rightly regarded as the most potent grant of authority

in section 8.

Necessary and Proper Clause.—All grants of power to Congress in § 8, as elsewhere, must be read in conjunction with the

Necessary and Proper Clause, § 8, cl. 18, which authorizes Congress “[t]o make all Laws which shall be necessary and proper for

carrying into Execution the foregoing powers.” 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.” 699 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 that the regulation of interstate activities might be fully effectuated.700 In other

cases, the clause may not have been directly cited, but the dictates

of Chief Justice Marshall have been used to justify more expansive

applications of the commerce power.701

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’s power to regulate much activity depended on whether it had a “direct” rather than an “indirect”

696 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).

697 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).

698 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).

699 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824).

700 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); Gonzales v. Raich, 545 U.S. 1 (2005).

701 See, e.g., United States v. Darby, 312 U.S. 100, 115–16 (1941).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

182 ART. I—LEGISLATIVE DEPARTMENT
effect on interstate commerce.702 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, in a number of instances the states

engaged in commercial activities that would be regulated by federal legislation if the enterprise were privately owned, and the Court

easily sustained application of federal law to these state proprietary activities.703 However, as Congress began to extend regulation to state governmental activities, the judicial response was inconsistent and wavering.704 Although 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, namely, when

the federal statutory provisions “commandeer” a state’s legislative

or executive authority in order to implement a regulatory program.705

Illegal Commerce

That Congress’s protective power over interstate commerce reaches

all kinds of obstructions and impediments was made clear in United

States v. Ferger.

706 The defendants had been indicted for issuing a

false bill of lading to cover a fictitious shipment in interstate commerce. Before the Court they argued that, because there could be

no commerce in a fraudulent bill of lading, Congress had no power

to exercise criminal jurisdiction over them. Chief Justice White wrote:

“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 obstruc702 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).

703 E.g., California v. United States, 320 U.S. 577 (1944); California v. Taylor,

353 U.S. 553 (1957).

704 For 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).

705 New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521

U.S. 898 (1997). For elaboration, see the discussions under the Supremacy Clause

and under the Tenth Amendment.

706 250 U.S. 199 (1919).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 183
tions 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.” 707 Much of Congress’s criminal legislation is based simply on the crossing of a state

line as creating federal jurisdiction.708

Interstate Versus Foreign Commerce

There are certain dicta urging or suggesting that Congress’s 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: “[T]he 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, generally 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.” 709

Twelve years later, Chief Justice White, speaking for the Court,

expressed the same view: “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 announc707 250 U.S. at 203.

708 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) (kidnaping); 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).

709 Lottery Case (Champion v. Ames), 188 U.S. 321, 373 (1903).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

184 ART. I—LEGISLATIVE DEPARTMENT
ing the principles which they uphold have obviously no relation to

the question in hand.” 710

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.” 711 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.” 712 Today it is firmly

established 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’s powers, as by the Due Process Clause of the Fifth Amendment, are not

transgressed.713

Instruments of Commerce

The applicability of Congress’s power to the agents and instruments of commerce is implied in Marshall’s opinion in Gibbons v.

Ogden,

714 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

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.,

715 a case closely paralleling Gibbons v. Ogden in other respects also. “The powers thus granted are

710 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, 448–51

(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.

711 License Cases, 46 U.S. (5 How.) 504, 578 (1847).

712 Pittsburg & Southern Coal Co. v. Bates, 156 U.S. 577, 587 (1895).

713 United States v. Carolene Products Co., 304 U.S. 144, 147–148 (1938).

714 22 U.S. (9 Wheat.) 1, 217, 221 (1824).

715 96 U.S. 1 (1878). See also Western Union Telegraph Co. v. Texas, 105 U.S.

460 (1882).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 185
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 stage-coach, from the sailingvessel 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.” 716

The Radio Act of 1927 717 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.718

Congressional Regulation of Waterways

Navigation.—In Pennsylvania v. Wheeling & Belmont Bridge

Co.,

719 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, under which 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 inter716 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).

717 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.

718 “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, 654–55 (1936).

719 54 U.S. (13 How.) 518 (1852).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

186 ART. I—LEGISLATIVE DEPARTMENT
fere with it.720 This act the Court sustained as within Congress’s

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.” 721 In short, it is Congress, and not the Court, which is

authorized by the Constitution to regulate commerce.722

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.

723 “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 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.” 724

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

720 Ch. 111, § 6, 10 Stat 112 (1852).

721 Pennsylvania 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).

722 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.

723 70 U.S. (3 Wall.) 713 (1866).

724 70 U.S. at 724–25.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 187
to order its abatement if he so finds.725 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’s powers over commerce, and the same is true of the property

of riparian owners that is damaged.726 And while it was formerly

held that lands adjoining nonnavigable streams were not subject to

the above mentioned servitude,727 this rule has been impaired by

recent decisions; 728 and at any rate it would not apply as to a stream

rendered navigable by improvements.729

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 accomplished are also subject to Congress’s 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.

730 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

725 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’s 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).

726 Gibson 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, Inc.,

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).

727 United States v. Cress, 243 U.S. 316 (1917).

728 United States v. Chicago, M., St. P. & P. R.R., 312 U.S. 592, 597 (1941); United

States v. Willow River Power Co., 324 U.S. 499 (1945).

729 United States v. Rio Grande Irrigation Co., 174 U.S. 690 (1899).

730 77 U.S. (10 Wall.) 557 (1871).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

188 ART. I—LEGISLATIVE DEPARTMENT
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.” 731

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, the Federal jurisdiction would be entirely ousted, and the constitutional provision

would become a dead letter.” 732 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.733

731 77 U.S. at 565.

732 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).

733 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’s 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 termiSec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 189
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,734 but because of the servitude that Congress’s power to regulate commerce imposes upon such streams, the

states, without the assent of Congress, practically are unable to use

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,” 735 the Court held in United States v. ChandlerDunbar Co.,

736 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 needs of the Government. The practice is not unusual in respect to similar public

works constructed by State governments.” 737

Since the Chandler-Dunbar case, the Court has come, in effect,

to hold that it will sustain any act of Congress that 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,

738 and United States v. Appalachian Power Co.739 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

nals 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. S.S. Co. v. Hill Mfg. Co., 109

U.S. 578, 589 (1883); The Hamilton, 207 U.S. 398 (1907); O’Donnell v. Great Lakes

Dredge & Dock Co., 318 U.S. 36 (1943).

734 Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845); Shively v. Bowlby, 152 U.S. 1

(1894).

735 Green Bay & Miss. Canal Co. v. Patten Paper Co., 172 U.S. 58, 80 (1898).

736 229 U.S. 53 (1913).

737 229 U.S. at 73, citing Kaukauna Water Power Co. v. Green Bay & Miss. Canal Co., 142 U.S. 254 (1891).

738 283 U.S. 423 (1931).

739 311 U.S. 377 (1940).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

190 ART. I—LEGISLATIVE DEPARTMENT
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.” 740

And, in the Appalachian Power case, the Court, abandoning previous holdings laying down the doctrine that to be subject to Congress’s 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.” 741

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.” 742 These

views the Court has since reiterated.743 Nor is it by virtue of Congress’s 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.744

740 283 U.S. at 455–56. See also United States v. Twin City Power Co., 350 U.S.

222, 224 (1956).

741 311 U.S. at 407, 409–10.

742 311 U.S. at 426.

743 Oklahoma v. Atkinson Co., 313 U.S. 508, 523–33 (1941).

744 Ashwander v. TVA, 297 U.S. 288 (1936).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 191
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.745

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.746

The litigation growing out of these and subsequent activities settled

several propositions. First, Congress may provide highways and railways for interstate transportation; 747 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.748

Federal Regulation of Land Transportation.—Congressional regulation of railroads may be said to have begun in 1866. 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.” 749 An act

of the same year provided federal chartering and protection from

conflicting state regulations to companies formed to construct and

operate telegraph lines.750 Another act regulated the transportation by railroad of livestock so as to preserve the health and safety

of the animals.751

Congress’s 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

745 Cf. Indiana v. United States, 148 U.S. 148 (1893).

746 12 Stat. 489 (1862); 13 Stat. 356 (1864); 14 Stat. 79 (1866).

747 The result then as well as now might have followed from Congress’s 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.

748 Thomson v. 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., 135 U.S. 641 (1890); Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

749 14 Stat. 66 (1866).

750 14 Stat. 221 (1866).

751 17 Stat. 353 (1873).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

192 ART. I—LEGISLATIVE DEPARTMENT
as not constituting a burden on interstate commerce; 752 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.753 In the following year, Congress passed the original Interstate Commerce Act.754

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.” In ICC v. Brimson,

755 the Court upheld

the Act as “necessary and proper” for the enforcement of the Commerce Clause and also sustained the Commission’s power to go to

court to secure compliance with its orders. Later decisions circumscribed somewhat the ICC’s power.756

Expansion of the Commission’s authority came in the Hepburn

Act of 1906 757 and the Mann-Elkins Act of 1910.758 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.759

By the Motor Carrier Act of 1935,760 the ICC was authorized to regulate the transportation of persons and property by motor vehicle

common carriers.

752 Munn v. Illinois, 94 U.S. 113 (1877); Chicago B. & Q. R. Co. v. Iowa, 94 U.S.

155 (1877); Peik v. Chicago & N.W. Ry., 94 U.S. 164 (1877); Pickard v. Pullman Southern Car Co., 117 U.S. 34 (1886).

753 Wabash, 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.R., 393 U.S. 129 (1968).

754 24 Stat. 379 (1887).

755 154 U.S. 447, 470 (1894).

756 ICC v. Alabama Midland Ry., 168 U.S. 144 (1897); Cincinnati, N.O. & Texas

Pacific Ry. v. ICC, 162 U.S. 184 (1896).

757 34 Stat. 584.

758 36 Stat. 539.

759 These regulatory powers are now vested, of course, in the Federal Communications Commission.

760 49 Stat. 543 (1935).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 193
The modern powers of the Commission were largely defined by

the Transportation Acts of 1920 761 and 1940.762 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.763 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.764

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 au761 41 Stat. 474.

762 54 Stat. 898, 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, 618–19 (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.

763 Disputes 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).

764 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

194 ART. I—LEGISLATIVE DEPARTMENT
thority and the States and not the Nation, would be supreme in

the national field.” 765

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.766

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 1893,767 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.768 The Court sustained this extension in language

much like that it would use in the Shreveport case three years later.769

These laws were followed by the Hours of Service Act of 1907,770

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.771

Most far-reaching of these regulatory measures were the Federal Employers Liability Acts of 1906 772 and 1908.773 These laws

were intended to modify the common-law rules with regard to the

765 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).

766 Wisconsin 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.

767 27 Stat. 531, 45 U.S.C. §§ 1–7.

768 32 Stat. 943, 45 U.S.C. §§ 8–10.

769 Southern 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).

770 34 Stat. 1415, 45 U.S.C. §§ 61–64.

771 Baltimore & Ohio R.R. v. ICC, 221 U.S. 612 (1911).

772 34 Stat. 232, held unconstitutional in part in the Employers’ Liability Cases,

207 U.S. 463 (1908).

773 35 Stat. 65, 45 U.S.C. §§ 51–60.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 195
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.774

Legislation and litigation dealing with the organizational rights

of rail employees are dealt with elsewhere.775

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.776 Subsequently, 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.777 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 778 and three years

later vested the FPC with like authority over natural gas moving

in interstate commerce.779 Thereafter, the Court sustained the power

of the Commission to set the prices at which gas originating in one

774 The 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.

775 See discussion under Railroad Retirement Act and National Labor Relations

Act, infra.

776 The 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 Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett v. Kansas Gas Co., 265 U.S. 298

(1924).

777 Public 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).

778 49 Stat. 863, 16 U.S.C. §§ 791a–825u.

779 52 Stat. 821, 15 U.S.C. §§ 717–717w.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

196 ART. I—LEGISLATIVE DEPARTMENT
state and transported into another should be sold to distributors

wholesale in the latter state.780 “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.” 781

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,782 and the Civil Aeronautics Act of 1938, providing for the regulation of all phases of airborne commerce, foreign and interstate.783

Congressional Regulation of Commerce as Traffic

The Sherman Act: Sugar Trust Case.—Congress’s 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.” 784 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.785 Here

the government asked for the cancellation of certain agreements,

whereby the American Sugar Refining Company, had “acquired,” it

780 FPC v. Natural Gas Pipeline Co., 315 U.S. 575 (1942).

781 315 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. ColoradoWyoming 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. LoVaca Gathering Co., 379 U.S. 366 (1965).

782 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).

783 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.

784 26 Stat. 209 (1890); 15 U.S.C. §§ 1–7.

785 156 U.S. 1 (1895).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 197
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.” 786

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 destination;” (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.787 Applying this 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.”

786 156 U.S. at 13.

787 156 U.S. at 13–16.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

198 ART. I—LEGISLATIVE DEPARTMENT
“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.” 788

Sherman Act Revived.—Four years later came Addyston Pipe

and Steel Co. v. United States,

789 in which the Antitrust Act was

successfully applied to an industrial combination 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 790 was decided.

788 156 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.” 156 U.S. 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.” 156 U.S. at 33.

789 175 U.S. 211 (1899).

790 196 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, 229–39

(1948), Justice Rutledge, for the Court, critically reviewed the jurisprudence of the

limitations on the Act 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);

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 199
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.791

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 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.” 792

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.793 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

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

194–99.

791 Swift & Co. v. United States, 196 U.S. 375, 396 (1905).

792 196 U.S. at 398–99.

793 196 U.S. at 399–401.

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200 ART. I—LEGISLATIVE DEPARTMENT
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.” 794 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.795

Stockyards and Grain Futures Acts.—In 1921, Congress passed

the Packers and Stockyards Act,796 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,797 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,

798 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

794 196 U.S. at 400.

795 Loewe 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).

796 42 Stat. 159, 7 U.S.C. §§ 171–183, 191–195, 201–203.

797 42 Stat. 998 (1922), 7 U.S.C. §§ 1–9, 10a–17.

798 258 U.S. 495 (1922).

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ART. I—LEGISLATIVE DEPARTMENT 201
further preparation for the market.” 799 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. . . . [T]hey do not stop the flow . . .

but, on the contrary, [are] indispensable to its continuity.” 800

In Chicago Board of Trade v. Olsen,

801 involving the Grain Futures Act, the same course of reasoning was repeated. Speaking of

Swift, 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.” 802

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

directly affect the country-wide commerce in it.” 803 Thus, a practice that 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.” 804

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

799 258 U.S. at 514.

800 258 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).

801 262 U.S. 1 (1923).

802 262 U.S. at 35.

803 262 U.S. at 40.

804 262 U.S. at 37, quoting Stafford v. Wallace, 258 U.S. 495, 521 (1922).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

202 ART. I—LEGISLATIVE DEPARTMENT
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 attempted to govern production and industrial relations in the field of production. Confronted

with this expansive exercise of Congress’s 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 805 and the Public Utility Company Act

(“Wheeler-Rayburn Act”) of 1935 806 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 the channels of interstate communication after a certain date

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,807 with the

Court relying principally on Gibbons v. Ogden.

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.” 808

National Industrial Recovery Act.—The initial effort of Congress to deal with this situation was embodied in the National In805 48 Stat. 881, 15 U.S.C. §§ 77b et seq.

806 49 Stat. 803, 15 U.S.C. §§ 79–79z–6.

807 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).

808 Appalachian Coals, Inc. v. United States, 288 U.S. 344, 372 (1933).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 203
dustrial Recovery Act of June 16, 1933.809 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,

810 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 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.” 811 In short, the case was governed by the ideology of the Sugar Trust case, which was not mentioned in the Court’s opinion.812

809 48 Stat. 195.

810 295 U.S. 495 (1935).

811 295 U.S. at 548. See also id. at 546.

812 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 Schechter by more than two decades.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

204 ART. I—LEGISLATIVE DEPARTMENT
Agricultural Adjustment Act.—Congress’s second attempt to

combat the Depression was the Agricultural Adjustment Act of 1933.813

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.814

Bituminous Coal Conservation Act.—The third measure to

be disallowed was the Guffey-Snyder Bituminous Coal Conservation Act of 1935.815 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, because it invaded the reserved powers of the states over conditions

of employment in productive industry, violated the Constitution.816

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 accomThe 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.

813 48 Stat. 31.

814 United States v. Butler, 297 U.S. 1, 63–64, 68 (1936).

815 49 Stat. 991.

816 Carter v. Carter Coal Co., 298 U.S. 238 (1936).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 205
plish 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.” 817

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, 1934,818 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 Bd. v. Alton R.R.,

819

however, a closely divided Court held this legislation to be in excess of Congress’s power to regulate commerce and contrary to the

Due Process Clause of the Fifth Amendment. Justice Roberts wrote

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 neither a

necessary nor an appropriate rule or regulation affecting the due

fulfillment of the railroads’ duty to serve the public in interstate

transportation.” 820

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.” 821 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

817 298 U.S. at 308–09.

818 48 Stat. 1283.

819 295 U.S. 330 (1935).

820 295 U.S. at 374.

821 295 U.S. at 379, 384.

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206 ART. I—LEGISLATIVE DEPARTMENT
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.822

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 Corporation.

823 Here the statute

involved was the National Labor Relations Act of 1935,824 which declared the right of workers to organize, forbade unlawful employer

interference with this right, established procedures by which workers could choose exclusive bargaining representatives with which

employers were required to bargain, and created a board to oversee all these processes.825

822 326 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).

823 301 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).

824 49 Stat. 449, as amended, 29 U.S.C. §§ 151 et seq.

825 The NLRA was enacted against the backdrop of depression, although obviously it went far beyond being a mere antidepression measure, and Congress could

find precedent 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).

In Wilson v. New, 243 U.S. 332 (1917), the Court did uphold 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’s powers were not as limited as some judicial decisions had indicated.

Congress’s 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 &

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 207
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 that

commerce must be appraised by a judgment that does not ignore

actual experience.” 826

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,827

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.828 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,829 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,830 and to a dispute involving a

retail distributor of fuel oil, all of whose sales were local, but who

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).

826 NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 38, 41–42 (1937).

827 NLRB v. Fruehauf Trailer Co., 301 U.S. 49 (1937); NLRB v. Friedman-Harry

Marks Clothing Co., 301 U.S. 58 (1937).

828 NLRB v. Fainblatt, 306 U.S. 601, 606 (1939).

829 Howell Chevrolet Co. v. NLRB, 346 U.S. 482 (1953).

830 Journeymen Plumbers’ Union v. County of Door, 359 U.S. 354 (1959).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

208 ART. I—LEGISLATIVE DEPARTMENT
obtained the oil from a wholesaler who imported it from another

state.831

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.” 832 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.833

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.”

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.” 834 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

831 NLRB v. Reliance Fuel Oil Co., 371 U.S. 224 (1963).

832 371 U.S. at 226. See also Guss v. Utah Labor Bd., 353 U.S. 1, 3 (1957); NLRB

v. Fainblatt, 306 U.S. 601, 607 (1939).

833 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).

834 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 209
to the States from and to which the commerce flows.” 835 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.

836 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.” 837

Subsequent decisions of the Court took a very broad view of which

employees should be covered by the Act,838 and in 1949 Congress

to some degree narrowed the permissible range of coverage and disapproved some of the Court’s decisions.839 But, in 1961,840 with extensions in 1966,841 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.842 The “enterprise

835 United States v. Darby, 312 U.S. 100, 115 (1941).

836 312 U.S. at 113, 114, 118.

837 312 U.S. at 123–24.

838 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)

(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).

839 Cf. Mitchell v. H.B. Zachry Co., 362 U.S. 310, 316–318 (1960).

840 75 Stat. 65.

841 80 Stat. 830.

842 29 U.S.C. §§ 203(r), 203(s).

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210 ART. I—LEGISLATIVE DEPARTMENT
concept” was sustained by the Court in Maryland v. Wirtz.

843 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.844

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, 1937,845

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.,

846 the Court sustained an order of 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 regu843 392 U.S. 183 (1968).

844 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).

845 50 Stat. 246, 7 U.S.C. §§ 601 et seq.

846 315 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 211
latory 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.” 847

In Wickard v. Filburn,

848 the Court sustained a still deeper penetration by Congress into the field of production. As amended by

the act of 1941, the Agricultural Adjustment Act of 1938 849 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 and obstructing its purpose to stimulate trade therein at increased prices.” 850

And, it elsewhere stated “that 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.” 851

847 315 U.S. at 118–19.

848 317 U.S. 111 (1942).

849 52 Stat. 31, 7 U.S.C. §§ 612c, 1281–1282 et seq.

850 317 U.S. at 128–29.

851 317 U.S. at 120, 123–24. In United States v. Rock Royal Co-operative, Inc.,

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. Justice Reed wrote 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

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

212 ART. I—LEGISLATIVE DEPARTMENT
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 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

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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 213
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.” 852

Foreign Commerce: Protective Tariffs.—Tariff laws have customarily contained prohibitory provisions, and such provisions have

been sustained by the Court under Congress’s revenue powers and

under its power to regulate foreign commerce. For the Court in Board

of Trustees v. United States,

853 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 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, par. 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, supra, p. 202. ‘Under the power to regulate foreign

commerce Congress impose duties on importations, give drawbacks, pass embargo and non-intercourse 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.” 854

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

852 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).

853 289 U.S. 48 (1933).

854 289 U.S. at 57, 58.

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214 ART. I—LEGISLATIVE DEPARTMENT
from abroad. Congress has exercised this power since 1842, when

it forbade the importation of obscene literature or pictures from

abroad.855 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.856 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 opium was prohibited,857 and subsequent statutes passed in 1909 and 1914 made it unlawful for anyone to import it.858 In 1897, Congress forbade the importation of

any tea “inferior in purity, quality, and fitness for consumption” as

compared with a legal standard.859 The Act was sustained in 1904,

in Buttfield v. Stranahan.

860 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.861

In Weber v. Freed,

862 the Court upheld an act prohibiting the

importation and interstate transportation of prize-fight films or of

pictorial representation of prize fights. 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 its lesser power over interstate commerce.863 And, in Brolan

v. United States,

864 the Court rejected as wholly inappropriate citation of cases dealing with interstate commerce on the question of

Congress’s 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’s 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

855 Ch. 270, § 28, 5 Stat. 566.

856 9 Stat. 237 (1848).

857 24 Stat. 409.

858 35 Stat. 614; 38 Stat. 275.

859 29 Stat. 605.

860 192 U.S. 470 (1904).

861 223 U.S. 166 (1912); cf. United States v. California, 332 U.S. 19 (1947).

862 239 U.S. 325 (1915).

863 239 U.S. at 329.

864 236 U.S. 216 (1915).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 215
in which he raised the specter of an act of Congress forbidding the

interstate slave trade.865 The debate was concluded ninety-nine years

later by the decision in United States v. Darby,

866 which sustained

the Fair Labor Standards Act.867

Interstate Commerce: National Prohibitions and State Police Power.—The earliest acts prohibiting commerce 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.868 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.869 In 1905, the same

official was authorized to lay an absolute embargo or quarantine

upon all shipments of cattle from one state to another when the

public necessity might demand it.870 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.871 In 1912, a

similar exclusion of diseased nursery stock was decreed,872 while

by the same act and again by an act of 1917,873 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.

Although 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,874 this view has today been abandoned.

865 Groves v. Slaughter, 40 U.S. (15 Pet.) 449, 488–89 (1841).

866 312 U.S. 100 (1941).

867 The 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’s 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, 112–24 (1941), overruling Hammer v. Dagenhart. See also Corwin, The Power of Congress to Prohibit Commerce, 3 SELECTED ESSAYS ON CONSTITUTIONAL LAW 103 (1938).

868 23 Stat. 31.

869 32 Stat. 791.

870 33 Stat. 1264.

871 33 Stat. 1269.

872 37 Stat. 315.

873 39 Stat. 1165.

874 Illinois Central R.R. v. McKendree, 203 U.S. 514 (1906). See also United States

v. DeWitt, 76 U.S. (9 Wall.) 41 (1870).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

216 ART. I—LEGISLATIVE DEPARTMENT
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,

875 involving the act of 1895 “for the suppression of lotteries.” 876 An earlier act excluding lottery tickets from

the mails had been upheld in the case In re Rapier,

877 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 interstate 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’s power to regulate commerce among the States included the power to prohibit it,

especially to supplement and support state legislation enacted under the police power. Early in the opinion, extensive quotation is

made from Chief Justice Marshall’s opinion in Gibbons v. Ogden,

878

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,

879 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

875 Lottery Case (Champion v. Ames), 188 U.S. 321 (1903).

876 28 Stat. 963.

877 143 U.S. 110 (1892).

878 22 U.S. (9 Wheat.) 1, 227 (1824).

879 114 U.S. 622, 630 (1885).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 217
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.” 880 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.” 881

In Brooks v. United States,

882 the Court sustained the National

Motor Vehicle Theft Act 883 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, notwithstanding

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

880 Hoke v. United States, 227 U.S. 308, 322 (1913).

881 United States v. Hill, 248 U.S. 420, 425 (1919).

882 267 U.S. 432 (1925).

883 41 Stat. 324 (1919), 18 U.S.C., §§ 2311–2313.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

218 ART. I—LEGISLATIVE DEPARTMENT
deemed to present any obstacle to the exercise of the regulatory power

of Congress.884

The Darby Case.—In sustaining the Fair Labor Standards Act 885

in 1941,886 the Court expressly overruled Hammer v. Dagenhart.

887

“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.” 888

The Commerce Clause as a Source of National Police

Power

The Court has several times expressly noted that Congress’s exercise of power under the Commerce Clause is akin to the police

power exercised by the states.889 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’s 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’s power. “The volume of

interstate commerce and the range of commonly accepted objects of

884 267 U.S. at 436–39. See also Kentucky Whip & Collar Co. v. Ill. Cent. R.R.,

299 U.S. 334 (1937).

885 29 U.S.C. §§ 201–219.

886 United States v. Darby, 312 U.S. 100 (1941).

887 247 U.S. 251 (1918).

888 312 U.S. at 116–17.

889 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 219
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’s commerce power.” 890

Congress’s commerce power has been characterized as having

three, or sometimes four, interrelated principles of decision, some

old, some of recent vintage. The Court in 1995 described “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’s 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.” 891

An example of the first category, regulating to protect the channels and instrumentalities of interstate commerce, is Pierce County

v. Guillen,

892 in which the Court upheld a prohibition on the use in

state or federal court proceedings of highway data required to be

collected by states on the basis that “Congress could reasonably believe that adopting a measure eliminating an unforeseen side effect

of the information-gathering requirement . . . would result in more

diligent efforts [by states] to collect the relevant information.”

Under the second category, which attaches to instrumentalities 893 and persons crossing of state lines, 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 racial discrimination.894

890 New York v. United States, 505 U.S. 144, 158 (1992).

891 United States v. Lopez, 514 U.S. 549, 558–59 (1995) (citations omitted).

892 537 U.S. 129, 147 (2003).

893 Examples of laws addressing instrumentalities of commerce include prohibitions on the destruction of an aircraft, 18 U.S.C. § 32, or on theft from interstate

shipments. Accord Perez v. United States, 402 U.S. 146, 150 (1971).

894 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

220 ART. I—LEGISLATIVE DEPARTMENT
Commerce regulation under this second category is not limited

to persons who cross state lines but can also extend to an object

that will or has crossed state lines, and the regulation of a purely

intrastate activity may be premised on the presence of such object.

Thus, the public accommodations law reached small establishments that served food and other items that had been purchased

from interstate channels.895 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.896

This reach is not of recent origin. In United States v. Sullivan,

897 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.” 898

Under the third category, Congress’s 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; this power derives from the Commerce Clause enhanced

by the Necessary and Proper Clause. The seminal case, of course,

is Wickard v. Filburn,

899 sustaining federal regulation of a crop of

wheat grown on a farm and intended solely for home consumption.

895 Katzenbach v. McClung, 379 U.S. 294, 298, 300–02 (1964); Daniel v. Paul,

395 U.S. 298, 305 (1969).

896 Scarborough 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.

897 332 U.S. 689 (1948).

898 332 U.S. at 698–99.

899 317 U.S. 111 (1942).

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ART. I—LEGISLATIVE DEPARTMENT 221
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 commerce among the States or with foreign nations.” 900 Coverage under federal labor and wage-and-hour laws after the 1930s

showed the reality of this doctrine.901

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.” 902 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.” 903

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.’ ” 904 Judicial review is narrow. Congress’s determination of an “effect” must be deferred to if it is rational, and Congress must have acted reasonably in choosing the means.905

900 Fry v. United States, 421 U.S. 542, 547 (1975).

901 See Maryland v. Wirtz, 392 U.S. 183, 188–93 (1968).

902 Hodel v. Indiana, 452 U.S. 314, 323–24 (1981).

903 452 U.S. at 324.

904 Hodel v. Virginia Surface Mining & Recl. Ass’n, 452 U.S. 264 (1981) (quoting

United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942)).

905 452 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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

222 ART. I—LEGISLATIVE DEPARTMENT
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,

906 the Court sustained the

application of a federal “loan-sharking” law to a local culprit. The

Court held that, although individual loan-sharking activities might

be intrastate in nature, still it was within Congress’s 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. Although 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.” 907 The apparent test of whether aggregation of local activity can be said to affect commerce was made

clear next in an antitrust context.908

In a case 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.909

He thought it a close case that the statutory provisions here met those tests. 452

U.S. at 307–13.

906 402 U.S. 146 (1971).

907 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.

908 Summit 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).

909 500 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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 223
Requirement that Regulation be Economic.—In United States

v. Lopez 910 the Court, for the first time in almost sixty years,911

invalidated a federal law as exceeding Congress’s authority under

the Commerce Clause. The statute made it a federal offense to possess a firearm within 1,000 feet of a school.912 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.913 As noted previously, the Court

evaluation started with a consideration of whether the legislation

fell within the three broad categories of activity that Congress may

regulate or protect under its commerce power: (1) use of the channels of interstate commerce, (2) the use of instrumentalities of interstate commerce, or (3) activities that substantially affect interstate commerce.914

Clearly, the Court said, the criminalized activity did not implicate the first two categories.915 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.” 916 The provision did not contain a “jurisdictional element which would ensure, through case-bycase inquiry, that the firearm possession in question affects interstate

commerce.” 917 The existence of such a section, the Court implied,

910 514 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.

911 Carter v. Carter Coal Co., 298 U.S. 238 (1936) (striking down regulation of

mining industry as outside of Commerce Clause).

912 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 or

that otherwise affects interstate or foreign commerce.” Pub. L. 104–208, 110 Stat.

3009–370.

913 514 U.S. at 556–57, 559.

914 514 U.S. at 558–59. For an example of regulation of persons or things in

interstate commerce, see Reno v. London, 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)

915 514 U.S. at 559.

916 514 U.S. at 559–61.

917 514 U.S. at 561.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

224 ART. I—LEGISLATIVE DEPARTMENT
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.918 At base, the Court’s concern was

that accepting the attenuated connection arguments 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.” 919

Whether Lopez bespoke a Court determination to police more

closely Congress’s exercise of its commerce power, so that it would

be a noteworthy case,920 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,

921 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.922 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.

918 514 U.S. at 563–68.

919 514 U.S. at 564.

920 “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).

921 529 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.

922 For 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). Lopez did not “purport to announce a new rule governing Congress’s Commerce Clause power over concededly economic activity.” Citizens Bank v. Alafabco,

Inc., 539 U.S. 52, 58 (2003).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 225
Gender-motivated crimes of violence “are not, in any sense of the

phrase, economic activity,” 923 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 serious effects of gender-motivated crimes,924 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.” 925

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.926 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.” 927

Yet, the ultimate impact of these cases on Congress’s power over

commerce may be limited. In Gonzales v. Raich,

928 the Court reaf923 529 U.S. at 613.

924 Dissenting 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.

925 529 U.S. at 614.

926 529 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.

927 529 U.S. at 618.

928 545 U.S. 1 (2005).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

226 ART. I—LEGISLATIVE DEPARTMENT
firmed an expansive application of Wickard v. Filburn, and signaled that its jurisprudence is unlikely to threaten the enforcement of broad regulatory schemes based on the Commerce Clause.

In Raich, the Court considered whether the cultivation, distribution, or possession of marijuana for personal medical purposes pursuant to the California Compassionate Use Act of 1996 could be prosecuted under the federal Controlled Substances Act (CSA).929 The

respondents argued that this class of activities should be considered as separate and distinct from the drug-trafficking that was the

focus of the CSA, and that regulation of this limited noncommercial use of marijuana should be evaluated separately.

In Raich, the Court declined the invitation to apply Lopez and

Morrison to select applications of a statute, holding that the Court

would defer to Congress if there was a rational basis to believe that

regulation of home-consumed marijuana would affect the market for

marijuana generally. The Court found that there was a “rational

basis” to believe that diversion of medicinal marijuana into the illegal market would depress the price on the latter market.930 The

Court also had little trouble finding that, even in application to medicinal marijuana, the CSA was an economic regulation. Noting that

the definition of “economics” includes “the production, distribution,

and consumption of commodities,” 931 the Court found that prohibiting the intrastate possession or manufacture of an article of commerce is a rational and commonly used means of regulating commerce in that product.

The Court’s decision also contained an intertwined but potentially separate argument that Congress had ample authority under

the Necessary and Proper Clause to regulate the intrastate manufacture and possession of controlled substances, because failure to

regulate these activities would undercut the ability of the government to enforce the CSA generally.932 The Court quoted language

from Lopez that appears to authorize the regulation of such activities on the basis that they are an essential part of a regulatory

scheme.933 Justice Scalia, in concurrence, suggested that this latter

category of activities could be regulated under the Necessary and

Proper Clause regardless of whether the activity in question was

929 84 Stat. 1242, 21 U.S.C. §§ 801 et seq.

930 545 U.S. at 19.

931 545 U.S. at 25, quoting Webster’s Third New International Dictionary 720

(1966).

932 545 U.S. at 18, 22.

933 545 U.S. at 23–25.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 227
economic or whether it substantially affected interstate commerce.934

Activity Versus Inactivity.—In National Federation of Independent Business (NFIB) v. Sebelius,

935 the Court held that Congress did not have the authority under the Commerce Clause to impose a requirement compelling certain individuals to maintain a

minimum level of health insurance (although, as discussed previously, the Court found such power to exist under the taxing power).

Under this “individual mandate,” failure to purchase health insurance may subject a person to a monetary penalty, administered through

the tax code.936 By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces healthy individuals into the insurance risk pool, thus allowing insurers to subsidize

the costs of covering the unhealthy individuals they are now required to accept.

Chief Justice Roberts, in a controlling opinion,937 suggested that

Congress’s authority to regulate interstate commerce presupposes

the existence of a commercial activity to regulate. Further, his opinion noted that the commerce power had been uniformly described

in previous cases as involving the regulation of an “activity.” 938 The

individual mandate, on the other hand, compels an individual to

become active in commerce on the theory that the individual’s inactivity affects interstate commerce. Justice Roberts suggested that

regulation of individuals because they are doing nothing would result in an unprecedented expansion of congressional authority with

few discernable limitations. While recognizing that most people are

likely to seek health care at some point in their lives, Justice Roberts noted that there was no precedent for the argument that individuals who might engage in a commercial activity in the future

934 545 U.S. at 34–35 (Scalia, J., concurring).

935 567 U.S. ___, No. 11–393, slip op. (2012).

936 Patient Protection and Affordable Care Act (ACA), Pub. L. 111–148, as amended.

This mandate was necessitated by the Act’s “guaranteed-issue” and “communityrating” provisions, under which insurance companies are prohibited from denying

coverage to those with such conditions or charging unhealthy individuals higher premiums than healthy individuals. Id. at §§ 300gg, 300gg–1, 300gg–3, 300gg–4. As these

requirements provide an incentive for individuals to delay purchasing health insurance until they become sick, this would impose new costs on insurers, leading them

to significantly increase premiums on everyone.

937 Although no other Justice joined Chief Justice Robert’s opinion, four dissenting Justices reached similar conclusions regarding the Commerce Clause and the

Necessary and Proper Clause. NFIB, No. 11–393, slip op. at 4–16 (joint opinion of

Scalia, Kennedy, Thomas and Alito, dissenting).

938 See, e.g., Lopez, 514 U.S. at 573 (“Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained”).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

228 ART. I—LEGISLATIVE DEPARTMENT
could, on that basis, be regulated today.939 The Chief Justice similarly rejected the argument that the Necessary and Proper Clause

could provide this additional authority. Rather than serving as a

“incidental” adjunct to the Commerce Clause, reliance on the Necessary and Proper Clause in this instance would, according to the

Chief Justice, create a substantial expansion of federal authority to

regulate persons not otherwise subject to such regulation.940

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.

941 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.942 Hotels and

motels were declared covered—that is, declared 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.943 The Court sustained

the Act as applied to a downtown Atlanta motel that did serve interstate travelers,944 to an out-of-the-way restaurant in Birmingham that catered to a local clientele but that 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,945 and to a rural 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.946

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

939 NFIB, No. 11–393, slip op. at 20, 26.

940 NFIB, No. 11–393, slip op. at 30.

941 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).

942 Civil Rights Act of 1964, Title II, 78 Stat. 241, 243, 42 U.S.C. §§ 2000a et

seq.

943 42 U.S.C. § 2000a(b).

944 Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

945 Katzenbach v. McClung, 379 U.S. 294 (1964).

946 Daniel v. Paul, 395 U.S. 298 (1969).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 229
States of origin and destination, which might have a substantial

and harmful effect upon that commerce.” 947

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.” 948 The evidence did, in fact, noted the

Justice, support Congress’s conclusion that racial discrimination impeded interstate travel by more than 20 million black citizens, which

was an impairment Congress could legislate to remove.949

The Commerce Clause basis for civil rights legislation prohibiting private discrimination was important because of the understanding that Congress’s power to act under the Fourteenth and Fifteenth Amendments was limited to official discrimination.950 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.951

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

947 Heart of Atlanta Motel v. United States, 379 U.S. 241, 258 (1964); Katzenbach

v. McClung, 379 U.S. 294, 301–04 (1964).

948 Heart of Atlanta Motel v. United States, 379 U.S. 241, 257 (1964).

949 379 U.S. at 252–53; Katzenbach v. McClung, 379 U.S. 294, 299–301 (1964).

950 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).

951 The Fair Housing Act (Title VIIII of the Civil Rights Act of 1968), 82 Stat.

73, 81, 42 U.S.C. §§ 3601 et seq., was based on the Commerce Clause, but, in Jones

v. Alfred H. Mayer Co., 392 U.S. 409 (1968), the Court held that legislation that

prohibited discrimination in housing 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

230 ART. I—LEGISLATIVE DEPARTMENT
the acts may be minimal.952 Examples of this type of federal criminal statute abound, including the Mann Act designed to outlaw interstate white slavery,953 the Dyer Act punishing interstate transportation of stolen automobiles,954 and the Lindbergh Law punishing

interstate transportation of kidnapped persons.955 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 . . . .” 956 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.

The most far-reaching measure the Court has sustained is the

“loan-sharking” prohibition of the Consumer Credit Protection Act.957

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’s 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.958

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.959

952 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).

953 18 U.S.C. § 2421.

954 18 U.S.C. § 2312.

955 18 U.S.C. § 1201.

956 18 U.S.C. § 1951. See also 18 U.S.C. § 1952.

957 Title II, 82 Stat. 159 (1968), 18 U.S.C. §§ 891 et seq.

958 Perez v. United States, 402 U.S. 146 (1971). See also Russell v. United States,

471 U.S. 858 (1985).

959 Thus, 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

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 231
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,

960 while some of the powers that

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 thereby be brought

to 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.” 961 In other words,

the constitutional grant was itself a regulation of commerce in the

interest of uniformity.962

That 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,

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).

960 THE 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.

961 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).

962 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.

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232 ART. I—LEGISLATIVE DEPARTMENT
counterintuitive, considering the extent of state regulation that existed before the Constitution.963 Moreover, legislation by Congress

that regulated 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” 964—in

a word, the “police power.”

The text and drafting record of the Commerce Clause fails, therefore 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 of flat conflict between an act

or acts of Congress that regulate 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.965 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.966

963 The 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.

964 Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 203 (1824).

965 22 U.S. at 210–11.

966 The 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.

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ART. I—LEGISLATIVE DEPARTMENT 233
Thus, it has been judicially established that the Commerce Clause

is not only a “positive” grant of power to Congress, but is also a

“negative” constraint upon the states. This aspect of the Commerce

Clause, sometimes called the “dormant” commerce clause, means that

the courts may measure state legislation against Commerce Clause

values even in the absence of congressional regulation, i.e., when

Congress’s exercise of its power is dormant.

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.967 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 commerce between the states might be an exclusively federal power.968

Chief Justice Marshall originated the concept of the “dormant

commerce clause” in Willson v. Black Bird Creek Marsh Co.,

969 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,

970 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. Ac967 22 U.S. (9 Wheat.) at 13–14, 16.

968 22 U.S. at 17–18, 209. In Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122,

193–96 (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).

969 27 U.S. (2 Pet.) 245, 252 (1829).

970 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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

234 ART. I—LEGISLATIVE DEPARTMENT
cording to Justice Curtis’ opinion, the state act was valid on the

basis of a distinction between those subjects of commerce that “imperatively demand a single uniform rule” operating throughout the

country and those that “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’s power to be

“exclusive”; as to the latter, it held that the states enjoyed a power

of “concurrent legislation.” 971 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 972 on Commerce Clause grounds

was the State Freight Tax Case.

973 The question before the Court

was the validity of a nondiscriminatory 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.

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, not the courts, to

regulate commerce among the states. Often, as in Cooley and in later

cases, the Court stated or implied that the rule was imposed by

971 48 U.S. at 317–20. Although Chief Justice Taney had formerly taken the strong

position that Congress’s 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, 552–60 (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.

972 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).

973 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, 488–89 (1827),

indicated, in dicta, that a state tax might violate the Commerce Clause.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 235
the Commerce Clause.974 In Welton v. Missouri,

975 the Court attempted to suggest a somewhat different justification. The case involved a challenge to 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 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.” 976

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.” 977 Thus, “[f]or a hundred years it has been

974 “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 States.” Leisy v. Hardin, 135 U.S. 100, 108–09 (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

said, “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, 534–35 (1949). Subsequently, the Court stated that the 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 South-Central Timber Dev., Inc. v.

Wunnicke, 467 U.S. 82, 87 (1984) (emphasis added)).

975 91 U.S. 275 (1876).

976 91 U.S. at 282. In Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 33

(1867), the Court suggested that congressional silence with regard to matters of “local” concern may in some circumstances signify a willingness that the states regulate. These principles were further explained by Chief Justice Stone, writing for the

Court in Graves v. New York ex rel. O’Keefe, 306 U.S. 466, 479 n.1 (1939). “The

failure of Congress to regulate interstate commerce has generally been taken to signify a Congressional purpose to leave undisturbed the authority of the states to make

regulations affecting the commerce in matters of peculiarly local concern, but to withhold from them authority to make regulations affecting those phases of it which,

because of the need of a national uniformity, demand that their regulation, if any,

be prescribed by a single authority.” 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).

977 Southern Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945).

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236 ART. I—LEGISLATIVE DEPARTMENT
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.” 978

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,

979 the statute under

review, as the Court observed several times, was clearly discriminatory as between in-state 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.980 A

later theme has been 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.981

Nonetheless, the power of the Court is established and is freely

exercised. No reservations can be discerned in the opinions for the

Court.982 Individual Justices, to be sure, have urged renunciation

of the power and remission to Congress for relief sought by litigants,983 but that has not been the course followed.

978 325 U.S. at 769. See also California v. Zook, 336 U.S. 725, 728 (1949).

979 91 U.S. 275, 277, 278, 279, 280, 281, 282 (1876).

980 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).

981 E.g., Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 440 (1939); McLeod

v. J. E. Dilworth Co., 322 U.S. 327, 330–31 (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, 447–50 (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)).

982 E.g., Fort Gratiot Sanitary Landfill, Inc. v. Michigan Natural Resources Dep’t,

504 U.S. 353, 359 (1992); Quill Corp. v. North Dakota, 504 U.S. 298 (1992); Wyoming v. Oklahoma, 502 U.S. 437, 455 (1992). Indeed, the Court, in Dennis v. Higgins, 498 U.S. 439, 447–50 (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’s 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.

983 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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 237
The State Proprietary Activity (Market Participant) Exception.—In a case of first impression, the Court held that a Maryland bounty scheme by which the state paid scrap processors for

each “hulk” automobile destroyed is “the kind of action with which

the Commerce Clause is not concerned.” 984 As first enacted, the bounty

plan did not distinguish between in-state and out-of-state processors, but it was amended in a manner that substantially disadvantaged out-of-state processors. The Court held “that entry by the State

itself into the market itself as a purchaser, in effect, of a potential

article of interstate commerce [does not] create[ ] a burden upon

that commerce if the State restricts its trade to its own citizens or

businesses within the State.” 985

Affirming and extending 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.986 “[T]he 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.” 987 It is yet unclear how far this

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, Inc., 486 U.S. 888 (1988) (concurring in judgment); American Trucking

Assn’s v. Smith, 496 U.S. 167 (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).

984 Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 805 (1976).

985 426 U.S. at 808.

986 Reeves, Inc. v. Stake, 447 U.S. 429 (1980).

987 447 U.S. at 436–37; see also McBurney v. Young, 569 U.S. ___, No. 12–17,

slip op. at 14 (2013) (to the extent that the Virginia Freedom of Information Act

created a market for public documents in Virginia, the Commonwealth was the sole

manufacturer of the product, and therefore did not offend the Commerce Clause when

it limited access to those documents under the Act to citizens of the Commonwealth).

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238 ART. I—LEGISLATIVE DEPARTMENT
concept of the state as market participant rather than market regulator will be extended.988

Congressional Authorization of Otherwise Impermissible

State Action.—The Supreme Court has heeded the lesson that was

administered to it by the Act of Congress of August 31, 1852,989 which

pronounced the Wheeling Bridge “a lawful structure,” thereby setting aside the Court’s determination to the contrary earlier the same

year.990 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.” 991 Similarly, when

in the late 1880s and the early 1890s statewide prohibition laws

began making their appearance, Congress again authorized state

laws that the Court had held to violate the dormant commerce clause.

The Court applied the “original package” doctrine to interstate

commerce in intoxicants, which the Court denominated “legitimate

articles of commerce.” 992 Although it held that a state was entitled

to prohibit the manufacture and sale of intoxicants within its boundaries,993 it contemporaneously laid down the rule, in Bowman v. Chicago & Northwestern Ry. Co.,

994 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 importation of liquor from a sister state.

This holding was soon followed by another to the effect that, so long

988 See 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).

989 Ch. 111, 10 Stat. 112, § 6.

990 Pennsylvania 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.

991 Transportation Co. v. Parkersburg, 107 U.S. 691, 701 (1883).

992 The Court had developed the “original package” doctrine to restrict application of a state tax on imports from a foreign country in Brown v. Maryland, 25 U.S.

(12 Wheat.) 419, 449 (1827). Although Chief Justice Marshall had indicated in dictum in Brown that the same rule would apply to imports from sister states, the

Court had refused to follow that dictum in Woodruff v. Parham, 75 U.S. (8 Wall.)

123 (1869).

993 Mugler v. Kansas, 123 U.S. 623 (1887). Relying on the distinction between

manufacture and commerce, the Court soon applied this ruling to authorize states

to prohibit manufacture of liquor for an out-of-state market. Kidd v. Pearson, 128

U.S. 1 (1888).

994 125 U.S. 465 (1888).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 239
as Congress remained silent, a state had no power to prevent the

sale in the original package of liquors introduced from another state.995

Congress soon attempted to overcome the effect of the latter decision by enacting the Wilson Act,996 which empowered states to regulate imported liquor on the same terms as domestically produced

liquor, but the Court interpreted the law narrowly as subjecting imported liquor to local authority only after its resale.997 Congress did

not fully nullify the Bowman case until 1913, when enactment of

the Webb-Kenyon Act 998 clearly authorized states to regulate direct shipments for personal use.

National Prohibition, imposed by the Eighteenth Amendment,

temporarily mooted these conflicts, but they reemerged with repeal

of Prohibition by the Twenty-first Amendment. Section 2 of the Twentyfirst Amendment prohibits “the importation into any State . . . for

delivery or use therein of intoxicating liquors, in violation of the

laws thereof.” Initially the Court interpreted this language to authorize states to discriminate against imported liquor in favor of

that produced in-state, but the modern Court has rejected this interpretation, holding instead that “state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause.” 999

Less than a year after the ruling in United States v. SouthEastern Underwriters Ass’n 1000 that insurance transactions across

state lines constituted interstate commerce, thereby establishing their

immunity from discriminatory state taxation, Congress passed the

McCarran-Ferguson Act,1001 authorizing state regulation and taxation of the insurance business. In Prudential Ins. Co. v. Benjamin,

1002 the Court sustained a South Carolina statute 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. “Obviously,” said Justice Rutledge for the

Court, “Congress’s purpose was broadly to give support to the existing and future state systems for regulating and taxing the busi995 Leisy v. Hardin, 135 U.S. 100 (1890).

996 Ch. 728, 26 Stat. 313 (1890), upheld in In re Rahrer, 140 U.S. 545 (1891).

997 Rhodes v. Iowa, 170 U.S. 412 (1898).

998 Ch. 90, 37 Stat. 699 (1913), sustained in 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).

999 Granholm v. Heald, 544 U.S. 460, 487 (2005). See also 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),

and the analysis of section 2 under Discrimination Between Domestic and Imported

Products.

1000 322 U.S. 533 (1944).

1001 59 Stat. 33, 15 U.S.C. §§ 1011–15.

1002 328 U.S. 408 (1946).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

240 ART. I—LEGISLATIVE DEPARTMENT
ness 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.” 1003

Justice Rutledge continued: “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.” 1004

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.” 1005 But the Court requires congressional intent to permit otherwise impermissible state

1003 328 U.S. at 429–30.

1004 328 U.S. at 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. In Northeast Bancorp, Inc. v.

Board of Governors of the Federal Reserve System, 472 U.S. 159, 176–78 (1985),

the Court declined to follow Ward where state statutes did not, as in Ward, favor

local corporations at the expense of out-of-state corporations, but instead “favor[ed]

out-of-state corporations domiciled within the New England region over out-of-state

corporations from other parts of the country.” The Court noted that the statutes in

Northeast Bancorp were concerned with “preserv[ing] a close relationship between

those in the community who need credit and those who provide credit,” and with

protecting “the independence of local banking institutions”; they did not, like the

statutes in Ward, discriminate against “nonresident corporations solely because they

were nonresidents.”

1005 Northeast Bancorp, Inc. 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

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 241
actions to “be unmistakably clear.” 1006 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.1007 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.1008

State Taxation and Regulation: The Old Law

In 1959, the Supreme Court acknowledged that, with respect

to the taxing power of the states in light of the negative (or “dormant”) commerce clause, “some three hundred full-dress opinions”

as of that year had not resulted in “consistent or reconcilable” doctrine but rather in something more resembling a “quagmire.” 1009

Although many of the principles still applicable in constitutional law

state laws 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).

1006 South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 90 (1984).

1007 467 U.S. at 92. See also Hillside Dairy, Inc. v. Lyons, 539 U.S. 59 (2003)

(authorization of state laws regulating milk solids does not authorize milk pricing

and pooling laws). 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, 958–60 (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).

1008 Maine 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).

1009 Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 457–58

(1959) (quoting Miller Bros. Co. 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 of preoccupation with their speSec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

242 ART. I—LEGISLATIVE DEPARTMENT
may be found in the older cases, 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.1010 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.1011

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 violating the Commerce Clause—

was the State Freight Tax Case.

1012 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.1013 A tax upon freight transported from one state to another

effects a regulation of interstate commerce.1014 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 exclusive regulating concial facts.” Freeman v. Hewit, 329 U.S. 249, 251–52 (1946). The comments in all

three cases dealt with taxation, but they could just as well have included regulation.

1010 See J. HELLERSTEIN & W. HELLERSTEIN, STATE AND LOCAL TAXATION: CASES AND MATERIALS (8th ed. 2005), ch. 5.

1011 In addition to the sources previously cited, see J. HELLERSTEIN & W. HELLERSTEIN (8th ed.), ch. 5, supra. 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).

1012 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 232 (1873).

1013 82 U.S. at 275.

1014 82 U.S. at 275–76, 279.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 243
trol of Congress.1015 Transportation of passengers or merchandise

through a state, or from one state to another, is of this nature.1016

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.1017

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,

1018 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.” 1019 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. . . .” 1020

Insofar as it drew a distinction between these two cases, the

Court did so in part on the basis of Cooley, that some subjects embraced within the meaning of commerce demand uniform, national

regulation, whereas 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, and

1015 82 U.S. at 279–80.

1016 82 U.S. at 280.

1017 82 U.S. at 281–82.

1018 Reading R.R. v. Pennsylvania, 82 U.S. (15 Wall.) 284 (1872).

1019 82 U.S. at 293.

1020 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).

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244 ART. I—LEGISLATIVE DEPARTMENT
an “indirect” tax, which was permissible until Congress acted.1021

Confusingly, the two concepts were sometimes conflated and 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.1022

“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.” 1023 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 instrumentalities of

interstate commerce, were sustained.1024 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).1025

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 not felt by

local commerce.1026 It became much more important to the validity

of a tax that it be apportioned to an interstate company’s activities

1021 See 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).

1022 Robbins v. Shelby County Taxing Dist., 120 U.S. 489, 497 (1887); Leloup v.

Port of Mobile, 127 U.S. 640, 648 (1888).

1023 The Minnesota Rate Cases (Simpson v. Shepard), 230 U.S. 352, 400–401 (1913).

1024 The 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 (8th ed.), supra, at 195 et seq.

1025 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 Co. v. Flynt, 256 U.S. 421 (1921).

1026 Western 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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 245
within the taxing state, so as to reduce the risk of multiple taxation.1027 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 directindirect distinction.1028 The stage was set, following a series of cases

in which through formalistic reasoning the states were permitted

to evade the Court’s precedents,1029 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.1030 But the distinction

between “direct” and “indirect” burdens was often perceptible only

to the Court.1031

v. Department of Treasury, 322 U.S. 340 (1944); International Harvester Co. v. Evatt,

329 U.S. 416 (1947).

1027 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).

1028 Freeman v. Hewit, 329 U.S. 249 (1946); Spector Motor Serv. v. O’Connor,

340 U.S. 602 (1951).

1029 Thus, 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).

1030 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, 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, 766–70 (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.

1031 See Di Santo v. Pennsylvania, 273 U.S. 34 (1927) (Justice Stone dissenting).

The dissent was the precursor to Chief Justice Stone’s reformulation of the standard in 1945. DiSanto was overruled in California v. Thompson, 313 U.S. 109 (1941).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

246 ART. I—LEGISLATIVE DEPARTMENT
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.1032 But no registration was

permitted of an out-of-state corporation, the business of which in

the host state was purely interstate in character.1033 Neither did

the Court permit a state to exclude from its courts a corporation

engaging solely in interstate commerce because of a failure to register and to qualify to do business in that state.1034

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.1035

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.1036 A marked tolerance for a class of regulations that arguably furthered public safety was long exhibited by the Court,

1037 even

in instances in which the safety connection was tenuous.1038 Of par1032 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).

1033 Crutcher v. Kentucky, 141 U.S. 47 (1891); International Textbook Co. v. Pigg,

217 U.S. 91 (1910).

1034 Dahnke-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).

1035 Wabash, 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).

1036 Generally, 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. 427 (1897), and Lake Shore & Mich.

South. Ry. v. Ohio, 173 U.S. 285 (1899), and invalidated in Illinois Cent. R.R. v. Illinois, 163 U.S. 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-specific.

1037 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) (forbidding heating of

passenger cars by stoves); Chicago, R.I. & P. Ry. v. Arkansas, 219 U.S. 453 (1911)

(requiring three brakemen on freight trains of more than 25 cars).

1038 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)

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 247
ticular controversy were “full-crew” laws, represented as safety measures, that were attacked by the companies as “feather-bedding”

rules.1039

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.1040 Indeed, states were permitted to regulate many

of the local activities of interstate firms and thus the interstate operations, in pursuit of these interests.1041 Here, too, safety concerns

became overriding objects of deference, even in doubtful cases.1042

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.1043

As a general rule, although the Court during this time did not

permit states to regulate a purely interstate activity or prescribe

(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 a 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).

1039 Four cases over a lengthy period sustained the laws. Chicago, R.I. & Pac.

Ry. Co. v. Arkansas, 219 U.S. 453 (1911); St. Louis, I. Mt. & So. Ry. v. Arkansas, 240

U.S. 518 (1916); Missouri Pacific R.R. 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.

1040 Hendrick v. Maryland, 235 U.S. 610 (1915); Kane v. New Jersey, 242 U.S.

160 (1916).

1041 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 commoncarrier 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).

1042 E.g., Mauer v. Hamilton, 309 U.S. 598 (1940) (ban on operation 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).

1043 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

(1937) (upholding state inspection and regulation of tugs operating in navigable waters, in absence of federal law).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

248 ART. I—LEGISLATIVE DEPARTMENT
prices for purely interstate transactions,1044 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.1045

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,

1046 the tax

case, was Minnesota v. Barber,

1047 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.1048 State protectionist regulation on behalf of local milk producers has occasioned

judicial censure. Thus, in Baldwin v. G.A.F. Seelig.,

1049 the Court

had before it a complex state price-fixing 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 the dealers had to pay within the

state, and, thus, in-state producers were protected. And, in H. P.

1044 E.g., Western Union Tel Co. v. Foster, 247 U.S. 105 (1918); Lemke v. Farmers Grain Co., 258 U.S. 50 (1922); State Comm’n v. Wichita Gas Co., 290 U.S. 561

(1934).

1045 Milk Control Board v. Eisenberg Co., 306 U.S. 346 (1939) (milk); Parker v.

Brown, 317 U.S. 341 (1943) (raisins).

1046 91 U.S. 275 (1875).

1047 136 U.S. 313 (1890).

1048 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 Nat. Res. Dep’t,

504 U.S. 353 (1992) (forbidding landfills from accepting out-of-county wastes). See

also 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).

1049 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 249
Hood & Sons, Inc. v. Du Mond,

1050 the Court struck down a state

refusal to grant an out-of-state 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.1051

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,1052 but in the area of taxation the passage was choppy and

often witnessed retreats and advances.1053 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 conflict within

the Court 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.1054 In

Northwestern States Portland Cement Co. v. Minnesota,

1055 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.1056 Northwestern States held that a state could

constitutionally impose a nondiscriminatory, fairly apportioned net

income tax on an out-of-state corporation engaged exclusively in interstate commerce in the taxing state. “For the first time outside

1050 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).

1051 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).

1052 Formulation 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).

1053 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).

1054 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).

1055 358 U.S. 450 (1959).

1056 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

250 ART. I—LEGISLATIVE DEPARTMENT
the context of property taxation, the Court explicitly recognized that

an exclusively interstate business could be subjected to the states’

taxing powers.” 1057 Thus, in Northwestern States, foreign corporations that 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.1058 In Complete Auto Transit, Inc.

v. Brady,

1059 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.” 1060 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, and is fairly related to the ser1057 Hellerstein, State Taxation of Interstate Business: Perspectives on Two Centuries of Constitutional Adjudication, 41 TAX LAW. 37, 54 (1987).

1058 Spector 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.

1059 430 U.S. 274 (1977).

1060 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)).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 251
vices provided by the State.” 1061 All subsequent cases have been decided in this framework.

Nexus.—“The Commerce Clause and the Due Process Clause impose distinct but parallel limitations on a State’s power to tax outof-state activities. The Due Process Clause demands that there exist some definite link, some minimum connection, between a state

and the person, property or transaction it seeks to tax, as well as a

rational relationship between the tax and the values connected with

the taxing State. The Commerce Clause forbids the States to levy

taxes that discriminate against interstate commerce or that burden it by subjecting activities to multiple or unfairly apportioned

taxation.” 1062 “The broad inquiry subsumed in both constitutional

requirements is whether the taxing power exerted by the state bears

fiscal relation to protection, opportunities and benefits given by the

state—that is, whether the state has given anything for which it

can ask return.” 1063

The question of the presence of a substantial nexus often arises

when a state imposes on out-of-state vendors an obligation to collect use taxes on goods sold in the taxing state, and a determinative factor is whether the vendor is physically present in the state.

The Court has sustained such an imposition on mail order sellers

with retail outlets, solicitors, or property within the taxing state,1064

1061 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).

1062 Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1505 (2008)

(citations and internal quotation marks omitted). “[T]he due process nexus analysis

requires that we ask whether an individual’s connections with a State are substantial enough to legitimate the State’s exercise of power over him. . . . In contrast,

the Commerce Clause and its nexus requirement are informed not so much by concerns about fairness for the individual defendant as by structural concerns about

the effects of state regulation on the national economy.” Quill Corp. v. North Dakota

ex rel. Heitkamp, 504 U.S. 298, 312 (1992).

1063 128 S. Ct. at 1505 (internal quotation marks omitted). It had been thought,

prior to the decision in Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298,

305 (1992), that the tests for nexus under the Commerce Clause and the Due Process Clause were identical, but the Court in that case, although stating that the

two tests “are closely related” (citing National Bellas Hess, Inc. v. Dept. of Revenue

of Illinois, 386 U.S. 753, 756 (1967)), held that they “differ fundamentally” and found

a state tax to satisfy the Due Process Clause but to violate the Commerce Clause.

Compare Quill at 325–28 (Justice White concurring in part and dissenting in part).

However, the requirement for “some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax” probably survives the bifurcation of the tests in Quill. National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 756 (1967) (Commerce Clause), quoting Miller Bros.

Co. v. Maryland, 347 U.S. 340, 344–45 (1954) (Due Process Clause).

1064 Scripto v. Carson, 362 U.S. 207 (1960); National Geographic Soc’y v. California Bd. of Equalization, 430 U.S. 551 (1977). In Scripto, the vendor’s agents that

were in the state imposing the tax were independent contractors, rather than emSec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

252 ART. I—LEGISLATIVE DEPARTMENT
but it has denied the power to a state to tax a seller whose “only

connection with customers in the State is by common carrier or the

United States mail.” 1065 The validity of general business taxes on

interstate enterprises may also be determined by the nexus standard. However, again, only a minimal contact is necessary.1066 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.1067 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.1068 The Court also 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.1069

When “there is no dispute that the taxpayer has done some business in the taxing State, the inquiry shifts from whether the State

may tax to what it may tax. To answer that question, [the Court

has] developed the unitary business principle. Under that principle, a State need not isolate the intrastate income-producing activities from the rest of the business but may tax an apportioned

sum of the corporation’s multistate business if the business is unitary. The court must determine whether intrastate and extrastate

activities formed part of a single unitary business, or whether the

out-of-state values that the State seeks to tax derive[d] from unrelated business activity which constitutes a discrete business enterployees, but this distinction was irrelevant. See also Tyler Pipe Indus. v. Washington State Dept. of Revenue, 483 U.S. 232, 249–50 (1987) (reaffirming Scripto on this

point). See also D. H. Holmes Co. v. McNamara, 486 U.S. 24 (1988) (upholding imposition of use tax on catalogs, printed outside state at direction of an in-state corporation and shipped to prospective customers within the state).

1065 National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 758

(1967), reaffirmed with respect to the Commerce Clause in Quill Corp. v. North Dakota ex rel. Heitkamp, 504 U.S. 298 (1992).

1066 Reacting to Northwestern States, Congress enacted Pub. 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).

1067 Standard Pressed Steel Co. v. Department of Revenue, 419 U.S. 560 (1975).

See also General Motors Corp. v. Washington, 377 U.S. 436 (1964).

1068 Tyler Pipe Indus. v. Dept. of Revenue, 483 U.S. 232, 249–51 (1987). The

Court agreed with the state court’s 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.

1069 United Air Lines v. Mahin, 410 U.S. 623 (1973).

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ART. I—LEGISLATIVE DEPARTMENT 253
prise. . . . If the value the State wishe[s] to tax derive[s] from a

‘unitary business’ operated within and without the State, the State

[may] tax an apportioned share of the value of that business instead of isolating the value attributable to the operation of the business within the State. Conversely, if the value the State wished to

tax derived from a discrete business enterprise, then the State could

not tax even an apportioned share of that value.” 1070 But, even when

there is a unitary business, “[t]he Due Process and Commerce Clauses

of the Constitution do not allow a State to tax income arising out

of interstate activities—even on a proportional basis—unless there

is a ‘minimal connection’ or ‘nexus’ 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.’ ” 1071

Apportionment.—This requirement is of long standing,1072 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 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 has been seen

as both a Commerce Clause and a due process requisite,1073 although, as one recent Court decision notes, tax measures that are

permissible under the Due Process Clause could run afoul of the

1070 Meadwestvaco Corp. v. Illinois Dept. of Revenue, 128 S. Ct. 1498, 1505–06

(2008) (citations and internal quotation marks omitted). The holding of this case

was that the concept of “operational function,” which the Court had introduced in

prior cases, was “not intended to modify the unitary business principle by adding a

new ground for apportionment.” Id. at 1507–08. In other words, the Court declined

to adopt a basis upon which a state could tax a non-unitary business.

1071 Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 165–66 (1983)

(internal quotation marks omitted). See also ASARCO Inc. v. Id. 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 nonunitary business).

1072 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).

1073 See Moorman Mfg. Co. v. Bair, 437 U.S. 267 (1978); Mobil Oil Corp. v. Comm’r

of Taxes, 445 U.S. 425 (1980); Exxon Corp. v. Wis. Dep’t of Revenue, 447 U.S. 207

(1980); ASARCO Inc. v. Id. State Tax Comm’n, 458 U.S. 307 (1982); F. W. Woolworth

Co. v. N.M. Tax. & Revenue Dep’t, 458 U.S. 354 (1982); Container Corp. of Amer. v.

Franchise Tax Bd., 463 U.S. 159 (1983); Tyler Pipe Indus. v. Dep’t of Revenue, 483

U.S. 232, 251 (1987); Allied-Signal, Inc. v. Dir., Div. of Taxation, 504 U.S. 768 (1992).

Cf. Am. Trucking Ass’ns Inc. v. Scheiner, 483 U.S. 266 (1987).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

254 ART. I—LEGISLATIVE DEPARTMENT
Commerce Clause.1074 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.1075

“Instead,” the Court wrote, “we determine whether a tax is fairly

apportioned by examining whether it is internally and externally

consistent. 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.” 1076

In Goldberg v. Sweet, 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.1077 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 because it was apportioned to mileage traveled in the state, whereas lump-sum annual taxes, an axle tax and

1074 Comptroller of the Treasury of Md. v. Wynne, 575 U.S. ___, No. 13–485, slip

op. at 13 (2015) (“The Due Process Clause allows a State to tax ‘all the income of its

residents, even income earned outside the taxing jurisdiction.’ But ‘while a State

may, consistent with the Due Process Clause, have the authority to tax a particular

taxpayer, imposition of the tax may nonetheless violate the Commerce Clause.”) (internal citations omitted). The challenge in Wynne was brought by Maryland residents, whose worldwide income three dissenting Justices would have seen as subject to Maryland taxation based on their domicile in the state, even though it resulted

in the double taxation of income earned in other states. Id. at 2 (Ginsburg, J., dissenting) (“For at least a century, ‘domicile’ has been recognized as a secure ground

for taxation of residents’ worldwide income.”). However, the majority took a different view, holding that Maryland’s taxing scheme was unconstitutional under the dormant Commerce Clause because it did not provide a full credit for taxes paid to

other states on income earned from interstate activities. Id. at 21–25 (majority opinion).

1075 Moorman Mfg. Co. v. Bair, 437 U.S. 267, 278–80 (1978).

1076 Goldberg v. Sweet, 488 U.S. 252, 261, 262 (1989) (citations omitted).

1077 488 U.S. 252 (1989). 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.

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ART. I—LEGISLATIVE DEPARTMENT 255
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, then the

burden on interstate commerce would be great.1078 Similarly, the

Court held that Maryland’s personal income tax scheme—which taxed

Maryland residents on their worldwide income and nonresidents on

income earned in the state and did not offer Maryland residents a

full credit for income taxes they paid to other states—“fails the internal consistency test.” 1079 The Court did so because, if every state

adopted the same approach, taxpayers who “earn[] income interstate” would be taxed twice on a portion of that income, while those

who earned income solely within their state of residence would be

taxed only once.1080

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.1081 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, because 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.1082

However, the Court found discriminatory and thus invalid a state

intangibles tax on a fraction of the value of corporate stock owned

1078 American Trucking Ass’ns v. Scheiner, 483 U.S. 266 (1987).

1079 Comptroller of the Treasury of Md. v. Wynne, 575 U.S. ___, No. 13–485, slip

op. at 22 (2015). The Court in Wynne expressly declined to distinguish between taxes

on gross receipts and taxes on net income or between taxes on individuals and taxes

on corporations. Id. at 7, 9. The Court also noted that Maryland could “cure the

problem with its current system” by granting a full credit for taxes paid to other

states, but the Court did “not foreclose the possibility” that Maryland could comply

with the Commerce Clause in some other way. Id. at 25.

1080 Id. at 22–23.

1081 Indeed, there seemed to be a precedent squarely on point: Central Greyhound Lines v. Mealey, 334 U.S. 653 (1948). The Court in that case struck down a

state statute that failed to apportion its taxation of interstate bus ticket sales to

reflect the distance traveled within the state.

1082 Oklahoma 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 billed to an in-state address.

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256 ART. I—LEGISLATIVE DEPARTMENT
by state residents inversely proportional to the state’s exposure to

the state income tax.1083

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.’ ” 1084

That is, a tax that by its terms or operation imposes 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.1085 In Armco, Inc. v. Hardesty,

1086 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 that the imposition discriminated against the interstate wholesaler.1087 A state excise tax on wholesale liquor sales, which exempted sales of specified local products,

was held to violate the Commerce Clause.1088 A state statute that

granted a tax credit for ethanol fuel if the ethanol was produced in

the state, or if it was produced in another state that granted a similar credit to the state’s ethanol fuel, was found discriminatory in

violation of the clause.1089 The Court reached the same conclusion

1083 Fulton 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).

1084 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 (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).

1085 Maryland v. Louisiana, 451 U.S. 725, 753–760 (1981). But see Commonwealth Edison Co. v. Montana, 453 U.S. 609, 617–619 (1981). See also 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).

1086 467 U.S. 638 (1984).

1087 The 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 Gen. Foods v. Iowa Dep’t of Revenue, 505 U.S. 71 (1992).

1088 Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984).

1089 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

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as to Maryland’s personal income tax scheme, previously noted, which

taxed Maryland residents on their worldwide income and nonresidents on income earned in the state and did not offer Maryland

residents a full credit for income taxes they paid to other states,

finding the scheme “inherently discriminatory.” 1090

Expanding, although neither unexpectedly nor exceptionally, its

dormant commerce jurisprudence, the Court in Camps Newfound/Owatonna,

Inc. v. Town of Harrison,

1091 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 out-of-state residents. The 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 profitmaking 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-ofstate individuals and groups. “For purposes of Commerce Clause

analysis, any categorical distinction between the activities of profitmaking 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.” 1092

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,

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).

1090 Comptroller of the Treasury of Md. v. Wynne, 575 U.S. ___, No. 13–485, slip

op. at 23 (2015) (“[T]he internal consistency test reveals what the undisputed economic analysis shows: Maryland’s tax scheme is inherently discriminatory and operates as a tariff.”). In so doing, the Court noted that Maryland could “cure the problem with its current system” by granting a full credit for taxes paid to other states,

but it did “not foreclose the possibility” that Maryland could comply with the Commerce Clause in some other way. Id. at 25.

1091 520 U.S. 564 (1997). The decision was 5-to-4 with a strong dissent by Justice Scalia, id. at 595, and a philosophical departure by Justice Thomas. Id. at 609.

1092 520 U.S. at 586.

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258 ART. I—LEGISLATIVE DEPARTMENT
the business has the requisite nexus with the state; if it does, then

the tax meets the fourth factor simply because the business has enjoyed the opportunities and protections that the state has afforded

it.1093

Regulation.—The modern standard of Commerce Clause review of state regulation of, or having an impact on, interstate commerce was adopted in Southern Pacific Co. v. Arizona,

1094 although

it was presaged in a series of opinions, mostly dissents, by Chief

Justice Stone.1095 Southern Pacific tested the validity of a state trainlength 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 accommodation of the competing demands

of the state and national interests involved.” 1096 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.” 1097

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.” 1098

1093 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 see American Trucking Ass’ns v. Michigan Pub. Serv. Comm’n, 545

U.S. 429 (2005), upholding imposition of a flat annual fee on all trucks engaged in

intrastate hauling (including trucks engaged in interstate hauling that “top off” loads

with intrastate pickups and deliveries) and concluding that levying the fee on a pertruck rather than per-mile basis was permissible in view of the objectives of defraying costs of administering various size, weight, safety, and insurance requirements.

1094 325 U.S. 761 (1945).

1095 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, 362–68 (1943) (alternative holding).

1096 Southern Pacific Co. v. Arizona, 325 U.S. 761, 768–69 (1941).

1097 325 U.S. at 769.

1098 325 U.S. at 770–71.

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ART. I—LEGISLATIVE DEPARTMENT 259
The test today continues to be the Stone articulation, although

the more frequently quoted encapsulation of it is from Pike v. Bruce

Church, Inc.: “Where the statute regulates evenhandedly 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.” 1099

Obviously, the test requires “evenhanded[ness].” 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—then 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.” 1100 Thus, an Oklahoma 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.1101 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.1102

1099 397 U.S. 137, 142 (1970) (citation omitted).

1100 Wyoming 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 upheld a protectionist law, finding a valid justification aside from economic protectionism. The state barred the importation of out-ofstate 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.

1101 Wyoming 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-ofstate, because of impermissible discrimination).

1102 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

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260 ART. I—LEGISLATIVE DEPARTMENT
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,

1103 the Court confronted a North Carolina 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 that the impact was intended, but, rather than strike down

the state requirement as purposeful, it held that the regulation had

the practical effect of discriminating, and, as no defense based on

possible consumer protection could be presented, the Court invalidated the state law.1104 State actions to promote local products and

producers, of everything from milk 1105 to alcohol,1106 may not be

achieved through protectionism.

(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).

1103 432 U.S. 333 (1977). Other cases in which a 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).

1104 That 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).

1105 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.

1106 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). See also Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984) (a tax case). But cf. Pharmaceutical Research and Mfrs. of America v. Walsh, 538 U.S. 644 (2003) (state prescription drug

program providing rebates to participating companies does not regulate prices of outof-state transactions and does not favor in-state over out-of-state companies).

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Even garbage transportation and disposition is covered by the

negative commerce clause. A New Jersey statute that banned the

importation of most solid or liquid wastes that originated outside

the state was struck down as “an obvious effort to saddle those outside the State with the entire burden of slowing the flow of refuse

into New Jersey’s remaining landfill sites”; the state could not justify the statute as a quarantine law designed to protect the public

health because New Jersey left its landfills open to domestic waste.1107

Further extending the application of the negative commerce clause

to waste disposal,1108 the Court, in C & A Carbone, Inc. v. Town of

Clarkstown,

1109 invalidated as discriminating against interstate commerce a local “flow control” ordinance that required all solid waste

within the town to be processed at a designated transfer station

before leaving the municipality. Underlying the restriction was the

town’s decision to have a solid waste transfer station built by a private contractor, rather than with public funds. To make the arrangement appealing to the contractor, the town guaranteed it a minimum waste flow, which the town ensured by requiring that all solid

waste generated within the town be processed at the contractor’s

station.

The Court saw the ordinance as a form of economic protectionism, in that it “hoard[ed] solid waste, and the demand to get rid of

it, for the benefit of the preferred processing facility.” 1110 The Court

found that the town could not “justify the flow control ordinance as

a way to steer solid waste away from out-of-town disposal sites that

it might deem harmful to the environment. To do so would extend

the town’s police power beyond its jurisdictional bounds. States and

localities may not attach restrictions to exports or imports in order

to control commerce in other states.” 1111 The Court also found that

the town’s goal of “revenue generation is not a local interest that

can justify discrimination against interstate commerce. Otherwise

States could impose discriminatory taxes against solid waste originating outside the State.” 1112 Moreover, the town had other means

to raise revenue, such as subsidizing the facility through general

1107 City of Philadelphia v. New Jersey, 437 U.S. 617, 629 (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).

1108 See also Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511

U.S. 93 (1994) (discriminatory tax).

1109 511 U.S. 383 (1994).

1110 511 U.S. at 392. The Court added: “Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow

class of cases in which the municipality can demonstrate, under rigorous scrutiny,

that it has no other means to advance a legitimate state interest.” Id.

1111 511 U.S. at 393.

1112 511 U.S. at 393–94.

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262 ART. I—LEGISLATIVE DEPARTMENT
taxes or municipal bonds.1113 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.1114

In United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste

Management Authority,

1115 the Court declined to apply Carbone where

haulers were required to bring waste to facilities owned and operated by a state-created public benefit corporation instead of to a

private processing facility, as was the case in Carbone. The Court

found this difference constitutionally significant because “[d]isposing of trash has been a traditional government activity for years,

and laws that favor the government in such areas—but treat every

private business, whether in-state or out-of-state, exactly the same—do

not discriminate against interstate commerce for purposes of the

Commerce Clause. Applying the Commerce Clause test reserved for

regulations that do not discriminate against interstate commerce,

we uphold these ordinances because any incidental burden they may

have on interstate commerce does not outweigh the benefits they

confer . . . .” 1116

In Department of Revenue of Kentucky v. Davis,

1117 the Court

considered a challenge to the long-standing state practice of issuing bonds for public purposes while exempting interest on the bonds

from state taxation.1118 In Davis, a challenge was brought against

Kentucky for such a tax exemption because it applied only to government bonds that Kentucky issued, and not to government bonds

issued by other states. The Court, however, recognizing the long pedigree of such taxation schemes, applied the logic of United Haulers

Ass’n, Inc., noting that the issuance of debt securities to pay for

1113 511 U.S. at 394.

1114 See 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).

1115 550 U.S. 330 (2007).

1116 550 U.S. at 334. The Commerce Clause test referred to is the test set forth

in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). “Under the Pike test, we will

uphold a nondiscriminatory statute . . . ‘unless the burden imposed on [interstate]

commerce is clearly excessive in relation to the putative local benefits.’ ” Id. at 1797

(quoting Pike, 397 U.S. at 142). The fact that a state is seeking to protect itself

from economic or other difficulties, is not, by itself, sufficient to justify barriers to

interstate commerce. Edwards v. California, 314 U.S. 160 (1941) (striking down California effort to bar “Okies”—persons fleeing the Great Plains dust bowl during the

Depression). Cf. 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.

1117 128 S. Ct. 1801 (2008).

1118 This exemption from state taxes is also generally made available to bonds

issued by local governmental entities within a state.

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public projects is a “quintessentially public function,” and that Kentucky’s differential tax scheme should not be treated like one that

discriminated between privately issued bonds.1119 In what may portend a significant change in dormant commerce clause doctrine, however, the Court declined to evaluate the governmental benefits of

Kentucky’s tax scheme versus the economic burdens it imposed, holding that, at least in this instance, the “Judicial Branch is not institutionally suited to draw reliable conclusions.” 1120

Drawing the line between regulations that are facially discriminatory and regulations that necessitate balancing is not an easy task.

Not every claim of unconstitutional protectionism has been sustained. Thus, in Minnesota v. Clover Leaf Creamery Co.,

1121 the Court

upheld 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,

1122 the Court upheld a statute that prohibited producers or refiners of petroleum products from

operating retail service stations in Maryland. The statute did not

on its face discriminate against out-of-state companies, but, as there

were no producers or refiners in Maryland, “the burden of the divestiture requirements” fell solely on such companies.1123 The Court

found, however, that “this fact does not lead, either logically or as

a practical matter, to a conclusion that the State is discriminating

against interstate commerce at the retail level,” 1124 as the statute

does not “distinguish between in-state and out-of-state companies

in the retail market.” 1125

1119 128 S. Ct. at 1810–11. The Court noted that “[t]here is no forbidden discrimination because Kentucky, as a public entity, does not have to treat itself as being

‘substantially similar’ to the other bond issuers in the market.” Id. at 1811. Three

members of the Court would have also found this taxation scheme constitutional

under the “market participant” doctrine, despite the argument that the state, in this

instance, was acting as a market regulator, not as a market participant. Id. at 1812–14

(Justice Souter, joined by Justices Stevens and Breyer).

1120 128 S. Ct. at 1817.

1121 449 U.S. 456, 470–74 (1981).

1122 437 U.S. 117 (1978).

1123 437 U.S. at 125.

1124 437 U.S. at 125.

1125 437 U.S. at 126.

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264 ART. I—LEGISLATIVE DEPARTMENT
Still a model example of balancing is Chief Justice Stone’s opinion in Southern Pacific Co. v. Arizona.

1126 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 Arizona. As it was not practicable to break up trains at the border, that act had to be done 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 percent 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 Arizona’s law controlled the railroads’ operations over a wide area.1127 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.1128

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, although 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 those

attributable to longer trains. In short, the evidence did not show

1126 325 U.S. 761 (1945). Interestingly, Justice Stone had written the opinion

for the Court in South Carolina State Highway Dep’t 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).

1127 The 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, 583–84 (1986).

1128 Southern Pacific Co. v. Arizona, 325 U.S. 761, 771–75 (1945).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

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that the cap lessened rather than increased the danger of accidents.1129

Conflicting state regulations appeared in Bibb v. Navajo Freight

Lines.1130 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.1131 Difficulty attends any evaluation of the possible developing approach, because the Court has

spoken with several voices. A close reading, however, indicates that,

although 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 judgments, the Court nonetheless

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.” 1132

Balancing has been used in other than transportation-industry

cases. Indeed, the modern restatement of the standard was in such

a case.1133 There, the state required cantaloupes grown in the state

to be packed there, rather than in an adjacent state, so that in1129 325 U.S. at 775–79, 781–84.

1130 359 U.S. 520 (1959).

1131 Raymond Motor Transp., Inc. v. Rice, 434 U.S. 429 (1978); Kassel v. Consolidated Freightways Corp., 450 U.S. 662 (1981).

1132 Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 670–71 (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.

1133 Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

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266 ART. I—LEGISLATIVE DEPARTMENT
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 investmentadvisory businesses by out-of-state banks, bank holding companies,

and trust companies was invalidated.1134 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.,

1135

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 Delaware 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.1136

In other areas, although the Court repeats balancing language,

it has not applied it with any appreciable bite,1137 but in most respects the state regulations involved are at most problematic in the

context of the concerns of the Commerce Clause.

Foreign Commerce and State Powers

State taxation and regulation of commerce from abroad are also

subject to negative commerce clause constraints. In the seminal case

1134 Lewis v. BT Investment Managers, Inc., 447 U.S. 27 (1980).

1135 457 U.S. 624 (1982) (plurality opinion).

1136 CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987).

1137 E.g., Northwest Central Pipeline Corp. v. Kansas Corp. Comm’n, 489 U.S.

493, 525–26 (1989); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 472–74

(1981); Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 127–28 (1978). But see

Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U.S. 888 (1988).

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of Brown v. Maryland,

1138 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 1139 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. This is 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.1140 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,1141 the Court

held that, in addition to satisfying the four requirements that govern the permissibility of state taxation of interstate commerce,1142

“When a State seeks to tax the instrumentalities of foreign 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

1138 25 U.S. (12 Wheat.) 419 (1827).

1139 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).

1140 See, e.g., Halliburton Oil Well 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).

1141 441 U.S. 434 (1979).

1142 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 and 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 taxed the dividends that a corporation received from its foreign subsidiaries, but not the dividends it received from its domestic subsidiaries. Therefore,

there was a facial distinction between foreign and domestic commerce.

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268 ART. I—LEGISLATIVE DEPARTMENT
uniformity in an area where federal uniformity is essential.” 1143 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 foreign-owned 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, although California taxed the

Japanese containers, Japan did not tax American containers, and

disputes resulted.1144

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 only one jurisdiction. Second, the one-voice standard

was satisfied, because the United States had never entered into any

compact with a foreign nation precluding such state taxation, having only signed agreements with others, which had no force of law,

aspiring to eliminate taxation that constituted impediments to air

travel.1145 Also, a state unitary-tax scheme that used a worldwidecombined reporting formula was upheld as applied to the taxing of

the income of a domestic-based corporate group with extensive foreign operations.1146

1143 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).

1144 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).

1145 Wardair Canada v. Florida Dep’t of Revenue, 477 U.S. 1, 10 (1986).

1146 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

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Extending Container Corp., the Court in Barclays Bank v. Franchise Tax Bd. of California,

1147 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 or prevent the Federal Government from

speaking with one voice in international trade, in view of the fact

that Congress had rejected proposals that would have preempted

California’s practice.1148 The result of the case, perhaps intended,

is that foreign corporations have less protection under the negative

commerce clause.1149

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.

1150 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.1151 On the other hand, quarantine legislation

to protect the states’ residents from disease and other hazards was

of the income earned abroad would be taxed within the taxing state, is a question of

some considerable dispute.

1147 512 U.S. 298 (1994).

1148 Reliance could not be placed on Executive statements, the Court explained,

because “the Constitution expressly grants Congress, not the President, the power

to ‘regulate Commerce with foreign Nations.’ ” 512 U.S. at 329. “Executive Branch

communications that express federal policy but lack the force of law cannot render

unconstitutional California’s otherwise valid, congressionally condoned, use of worldwide combined reporting.” Id. at 330. Dissenting Justice Scalia noted that, although

the Court’s ruling correctly restored preemptive power to Congress, “it permits the

authority to be exercised by silence. Id. at 332.”

1149 The Supreme Court, Leading Cases, 1993 Term, 108 HARV. L. REV. 139, 139–49

(1993).

1150 25 U.S. (12 Wheat.) 419, 443–44 (1827).

1151 New York City v. Miln, 36 U.S. (11 Pet.) 102 (1837) (upholding reporting

requirements imposed on ships’ masters), overruled by Henderson v. Mayor of New

York, 92 U.S. 259 (1876); Passenger Cases, 48 U.S. (7 How.) 283 (1849)(1849); Chy

Lung v. Freeman, 92 U.S. 275 (1876).

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270 ART. I—LEGISLATIVE DEPARTMENT
commonly upheld though it regulated international commerce.1152

A state game-season law applied to criminalize the possession of a

dead grouse imported from Russia was upheld because of the practical necessities of enforcement of domestic law.1153

Nowadays, state regulation of foreign commerce is likely to be

judged by the extra factors set out in Japan Line.

1154 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,

1155 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.1156 The result, said the

Chief Justice, was required by the Supremacy Clause, which proclaims that statutes and treaties as well as the Constitution itself

supersede state laws that “interfere with, or are contrary to” their

dictates. “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.” 1157

1152 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).

1153 New York ex rel. Silz v. Hesterberg, 211 U.S. 31 (1908).

1154 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)).

1155 22 U.S. (9 Wheat.) 1 (1824).

1156 A modern application of Gibbons v. Ogden is Douglas v. Seacoast Products,

Inc., 431 U.S. 265 (1977), in which the Court, relying on the present version of the

licensing statute used 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.

1157 Gibbons 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 conSec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 271
Since the turn of the 20th 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.1158

“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.” 1159 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.” 1160

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 obstitutional in nature, deriving its forcefulness from the Supremacy Clause, it is much

more like statutory decisionmaking, in that 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 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.

1158 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 uses. Therefore, cases arising under legislation

based on other powers are cited and treated interchangeably.

1159 Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274, 285–86

(1971).

1160 Hines v. Davidowitz, 312 U.S. 52, 67 (1941). This case arose under the immigration power of clause 4.

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272 ART. I—LEGISLATIVE DEPARTMENT
server 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 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.” 1161

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.1162

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, still

recited and relied on, for determining when preemption occurred.1163 All modern cases recite some variation of the basic standards. “[T]he question whether a certain state action is pre-empted

by federal law is one of congressional intent. The purpose of Congress is the ultimate touchstone. To discern Congress’s intent we

1161 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)).

1162 E.g., Charleston & W. Car. Ry. v. Varnville Co., 237 U.S. 597, 604 (1915).

But see Corn Products Refining Co. v. Eddy, 249 U.S. 427, 438 (1919).

1163 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).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 273
examine the explicit statutory language and the structure and purpose of the statute.” 1164 Congress’s intent to supplant state authority in a particular field may be “explicitly stated in the statute’s

language or implicitly contained in its structure and purpose.” 1165

Because 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 general criteria which it purports to use in determining the preemptive reach.

“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.” 1166 However,

“federal regulation of a field of commerce should not be deemed preemptive of state regulatory power 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.” 1167 At the same time, “[t]he relative importance to the

1164 Gade 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 means of ascertaining congressional intent, although contested, is permissible.

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 606–12 & n.4 (1991).

1165 Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); FMC Corp. v. Holliday, 498 U.S. 52 (1990); Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 604–

605 (1991).

1166 Gade 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, Inc., 505

U.S. 504 (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, 604–05 (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, 203–04 (1983); Fidelity Fed.

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).

1167 Florida 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.

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

274 ART. I—LEGISLATIVE DEPARTMENT
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.” 1168

In the final analysis, “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.” 1169

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 tangled, and to some extent it is. But

some threads 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.1170 Provisions governing preemption can be relatively interpretation free.1171 For ex218, 230 (1947)). Nonetheless, this assumption may go only so far. See, e.g., Pliva,

Inc. v. Mensing, 564 U.S. ___, No. 09–993, slip op. at 15 (2011) (Thomas, J., plurality opinion) (“[T]he text of the Clause—that federal law shall be supreme, ‘any Thing

in the Constitution or Laws of any State to the Contrary notwithstanding’—plainly

contemplates conflict pre-emption by describing federal law as effectively repealing

contrary state law.”).

1168 Free v. Bland, 369 U.S. 663 (1962).

1169 Union Brokerage Co. v. Jensen, 322 U.S. 202, 211 (1944) (per Justice Frankfurter).

1170 Regulations as well as statutes can preempt. Agency regulations, when Congress has expressly or implied empowered these bodies to preempt, are “the supreme law of the land” 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 Fed. Savings & Loan Ass’n v. de la Cuesta, 458 U.S.

141 (1982). Federal common law, i.e., law applied by the courts in the absence of

explicit statutory directive, and respecting uniquely federal interests, 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’s 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).

1171 Thus, § 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, 528–32 (1977). See also National Meat Ass’n v. Harris, 565 U.S. ___, No. 10–

224, slip op. (2012) (broad preemption of all state laws on slaughterhouse activities

regardless of conflict with federal law). 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

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 275
ample, 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 and effect of the provision are to impose a levy upon the gross receipts of airlines.” 1172

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.1173 Delimiting the scope of an exception in

an express preemption provision can also present challenges. For

example, the Immigration Control and Reform Act of 1986 (IRCA),

which imposed the first comprehensive federal sanctions against employing aliens not authorized to work in the United States, preempted “any State or local law imposing civil or criminal sanctions

(other than through licensing and similar laws) upon those who employ unauthorized aliens.” 1174 In Chamber of Commerce of the United

States v. Whiting, a majority of the Court adopted a straightforward “plain meaning” approach to uphold a 2007 Arizona law that

called for the suspension or revocation of the business licenses (including articles of incorporation and like documents) of Arizona employers found to have knowingly hired an unauthorized alien.1175

By contrast, two dissenting opinions were troubled that the Arizona sanction was far more severe than that authorized for similar

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). See also Department of Treasury v. Fabe,

508 U.S. 491 (1993).

1172 Aloha Airlines v. Director of Taxation, 464 U.S. 7, 13–14 (1983).

1173 Morales 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); Nw, Inc. v. Ginsberg, 572 U.S. ___, No. 12–462, slip op.

(2014) (holding that the Airline Deregulation Act’s preemption provision applied to

state common law claims, including an airline customer’s claim for breach of the

implied covenant of good faith and fair dealing). But see Dan’s City Used Cars, Inc.

v. Pelkey, 569 U.S. ___, No. 12–52, slip op. (2013) (provision of Federal Aviation Administration Authorization Act of 1994 preempting state law “related to a price, route,

or service of any motor carrier . . . with respect to the transportation of property”

held not to preempt state laws on the disposal of towed vehicles by towing companies).

1174 8 U.S.C. § 1324a(h)(2).

1175 Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No.

09–115, slip op. (2011).

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276 ART. I—LEGISLATIVE DEPARTMENT
violations under either federal law or state laws in force prior to

IRCA. The dissents interpreted IRCA’s “licensing and similar laws”

language narrowly to cover only businesses that primarily recruit

or refer workers for employment, or businesses that have been found

by federal authorities to have violated federal sanctions, respectively..1176

At issue in AT&T Mobility, LLC v. Concepcion 1177 was a savings provision of the Federal Arbitration Act (FAA) that made arbitration provisions in contracts “valid, irrevocable and enforceable,

save upon such grounds as exist at law or in equity for the revocation of any contract.” 1178 An arbitration provision in their cellular

telephone contract forbade plaintiffs from seeking arbitration of an

allegedly fraudulent practice by AT&T on a class basis. The Court

closely divided over whether the FAA saving clause made this anticlass arbitration provision attackable under California law against

class action waivers in consumer contracts, or whether the savings

clause looked solely to grounds for revoking the cellular contract

that had nothing to do with the arbitration provision.1179 Another

case focused on a preemption clause that preempted certain laws

of “a State [or] political subdivision of a State” regulating motor carriers, but excepted “[State] safely regulatory authority.” The Court

interpreted the exception to allow a safety regulation adopted by a

city: “[a]bsent a clear statement to the contrary, Congress’s 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.” 1180

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.” 1181 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 “any law

1176 Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No.

09–115, slip op. (2011) (Breyer and Ginsburg, JJ., dissenting); id (Sotomayor, J., dissenting).

1177 563 U.S. ___, No. 09–893, slip op. (2011).

1178 9 U.S.C. § 2.

1179 Writing for the Court, Justice Scalia held, inter alia, that the saving clause

was not intended to open arbitration provisions themselves to possible scrutiny. 563

U.S. ___, No. 09–893, slip op. (2011). The four dissenting Justices interpreted the

saving clause as allowing use of the California law to attack the anti-class arbitration contract provision. Id. (Breyer, J. dissenting).

1180 City of Columbus v. Ours Garage and Wrecker Serv., 536 U.S. 424, 429 (2002).

1181 Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739 (1985), repeated in FMC Corp. v. Holliday, 498 U.S. 52, 58 (1991).

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. . . 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.1182 Interpretation of the provisions has resulted in contentious and divided Court opinions.1183

Also illustrative of the judicial difficulty with ambiguous preemption language are the fractured opinions in Cipollone, 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

1182 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); see also id. at 142–45 (describing

and applying another preemption provision of ERISA).

1183 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 healthcare 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); Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004) (suit brought against HMO

under state health care liability act for failure to exercise ordinary care when denying benefits is preempted).

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278 ART. I—LEGISLATIVE DEPARTMENT
the alleged harm visited on a smoker.1184 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 misrepresentation, 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; 1185 different alignments

of Justices concluded that the 1969 provisions did reach commonlaw 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.1186

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 1187 was 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

1184 Cipollone v. Liggett Group, 505 U.S. 504 (1992). The decision relied on two

controversial rules of construction. 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).

1185 505 U.S. at 518–19 (opinion of the court), 533–34 (Justice Blackmun concurring).

1186 505 U.S. at 520–30 (plurality opinion), 535–43 (Justice Blackmun concurring and dissenting), 548–50 (Justice Scalia concurring and dissenting).

1187 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).

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device.1188 The issue 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 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.1189

Following Cipollone, the Court observed that, although 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 Congress’s purpose is the ultimate touchstone.1190

The Court continued to struggle with application of express preemption language to state common-law tort actions in Geier v. American Honda Motor Co.1191 The National Traffic and Motor Vehicle

1188 21 U.S.C. § 350k(a).

1189 The 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 commonlaw claims would sometimes be preempted, but not here. Id. at 503 (concurring).

1190 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).

1191 529 U.S. 861 (2000).

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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, because the saving clause

implied that some number of state common law actions would be

saved. However, despite the saving clause, the Court ruled that a

common law tort action seeking damages for failure to equip a car

with a front seat airbag, in addition to a seat belt, was preempted.

According to the Court, allowing the suit would frustrate the purpose of a Federal Motor Vehicle Safety Standard that specifically

had intended to give manufacturers a choice among a variety of “passive restraint” systems for the applicable model year.1192 The Court’s

holding makes clear, contrary to the suggestion in Cipollone, that

existence of express preemption language does not foreclose the alternative operation of conflict (in this case “frustration of purpose”)

preemption.1193

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,” 1194 states are ousted from

the field. Still a paradigmatic example of field preemption is Hines

v. Davidowitz,

1195 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.1196 Adverting to the supremacy of national power

1192 The 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. But cf. Sprietsma v. Mercury Marine, 537 U.S. 51

(2002) (interpreting preemption language and saving clause in Federal Boat Safety

Act as not precluding a state common law tort action).

1193 Compare Williamson v. Mazda Motor of America, Inc., 562 U.S. ___, No. 08–

1314, slip op. (2011) (applying same statute as Geir, and later version of same regulation, no conflict preemption found of common law suit based on rear seat belt type,

because giving manufacturers a choice on the type of rear seat belt to install was

not a “significant objective” of the statute or regulation). For a decision applying

express preemption language to a variety of state common law claims, see Bates v.

Dow Agrosciences LLC, 544 U.S. 431 (2005) (interpreting FIFRA, the federal law

governing pesticides).

1194 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.

1195 312 U.S. 52 (1941).

1196 In Arizona v. United States, the Court struck down state penalties for violating federal alien registration requirements, emphasizing that “[w]here Congress

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ART. I—LEGISLATIVE DEPARTMENT 281
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.1197 Similarly, in Pennsylvania v. Nelson,

1198 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.1199

Rice 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.1200

Field preemption analysis often involves delimiting the subject

of federal regulation and determining whether a federal law has

regulated part of the field, however defined, or the whole area, so

that state law cannot even supplement the federal.1201 Illustrative

of this point is the Court’s holding that the Atomic Energy Act’s

occupies an entire field, . . . even complementary state regulation is impermissible.”

567 U.S. ___, No. 11–182, slip op. at 10 (2012) The same case also struck down on

preemption grounds state sanctions on unauthorized aliens who work or seek employment, id. at 12–15, and authority for state officers to make warrantless arrests

based on possible deportability under federal immigration law. Id. By contrast, a

regime of state immigration status checks with federal authorities was found not to

be preempted on its face because the regime was supported by federal law facilitating federal-state cooperation in immigration enforcement.

1197 The 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. See AT&T Mobility, LLC v. Concepcion, 563 U.S. ___, No.

09–893, slip op. at 9–18 (2011) (Scalia, J.). 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).

1198 350 U.S. 497 (1956).

1199 350 U.S. at 502–05. Obviously, there is a noticeable blending into conflict

preemption.

1200 Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947).

1201 See Kurns v. Railroad Friction Products Corp., 565 U.S. ___, No. 10–879,

slip op. (2012) (state suit by the estate of maintenance engineer alleging manufacturer’s defective design of locomotive components and failure to warn of accompanying dangers held preempted by the Locomotive Inspection Act; the subject of the Act

held to be the regulation of locomotive equipment generally, including its manufacture, and not limited to regulating activities of locomotive operators or regulating

locomotives while in use for transporation). 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. v. Paul, 373 U.S. 132 (1963) (state

law setting minimum oil content for avocados certified as mature by federal regulation is complementary to federal law, because 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

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282 ART. I—LEGISLATIVE DEPARTMENT
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, because “economic” regulation of power generation has traditionally been left to

the states—an arrangement maintained by the Act—and because

the state law could be justified as an economic rather than a safety

regulation.1202

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.1203 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.1204 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.1205 Also, a closely divided Court voided a city ordinance

placing an 11 p.m. to 7 a.m. curfew on jet flights from the city airport where, despite the absence of preemptive language in federal

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).

1202 Pacific 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).

1203 Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1960).

1204 Askew v. American Waterways Operators, 411 U.S. 325 (1973).

1205 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).

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ART. I—LEGISLATIVE DEPARTMENT 283
law, federal regulation of aircraft noise was of such a pervasive nature as to leave no room for state or local regulation.1206

The Court has, however, recognized that when a federal statute preempts a narrow field, leaving states to regulate outside of

that field, state laws whose “target” is beyond the field of federal

regulation are not necessarily displaced by field preemption principles.1207 In Oneok v. Learjet, gas pipeline companies and the federal government asserted that state antitrust claims against the pipeline companies for alleged manipulation of certain indices used in

setting natural gas prices were field preempted because the Natural Gas Act (NGA) regulates wholesale prices of natural gas.1208 The

Court disagreed. In so doing, the Court noted that the alleged manipulation of the price indices also affected retail prices, the regulation of which is left to the states by the NGA.1209 Because the Court

viewed Congress as having struck a “careful balance” between federal and state regulation when enacting the NGA, it took the view

that,1210 “where (as here) a state law can be applied” both to sales

regulated by the federal government and to other sales, “we must

proceed cautiously, finding pre-emption only where detailed examination convinces us that a matter falls within the pre-empted field

as defined by our precedents.” 1211 The Court found no such preemption here, in part because the “target at which the state law aims”

is practices affecting retail prices, something which the Court viewed

as “firmly on the States’ side of th[e] dividing line.” 1212 The Court

also noted that the “broad applicability” of state antitrust laws supports a finding of no preemption here,1213 as does the states’ historic role in providing common law and statutory remedies against

monopolies and unfair business practices.1214 However, while declining to find field preemption, the Court left open the possibility of

conflict preemption, which had not been raised by the parties.1215

Congress may preempt state regulation without itself prescribing a federal standard; it may deregulate a field and thus occupy it

1206 City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973).

1207 Oneok, Inc. v. Learjet, Inc., 575 U.S. ___, No. 13–271, slip op. at 10–12 (2014).

1208 Id. at 3, 10.

1209 Id. at 3.

1210 Id. at 13.

1211 Id. at 10.

1212 Id. at 11.

1213 Id. at 13.

1214 Id. at 14.

1215 Id. at 15–16.

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284 ART. I—LEGISLATIVE DEPARTMENT
by opting for market regulation and precluding state or local regulation.1216

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,

1217 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.1218

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.1219 More problematic are circumstances in which a party

has an administrative avenue for seeking removal of impediments

to dual compliance. In Pliva, Inc. v. Mensing,

1220 federal law required generic drugs to be labeled the same as the brand name coun1216 Transcontinental 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).

1217 479 U.S. 1 (1986).

1218 See 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);

Wos v. E.M.A., 568 U.S. ___, No. 12–98, slip op. (2013) (North Carolina statute allowing the state to collect up to one-third of the amount of a tort settlement as reimbursement for state paid medical expenses under Medicaid held to conflict effectively with anti-lien provisions of the federal Medicaid statute where settlement

designated an amount less than one-third as medical expenses award).

1219 Fidelity Fed. Savings & Loan Assn. v. de la Cuesta, 458 U.S. 141 (1982).

1220 564 U.S. ___, No. 09–993, slip op. (2011).

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ART. I—LEGISLATIVE DEPARTMENT 285
terpart, while state tort law required drug labels to contain adequate warnings to render use of the drug reasonably safe. There

had been accumulating evidence that long-term use of the drug

metoclopramide carried a significant risk of severe neurological damage, but manufacturers of generic metoclopramide neither amended

their warning labels nor sought to have the Food and Drug Administration require the brand name manufacturer to include stronger

label warnings, which consequently would have led to stronger labeling of the generic. Five Justices held that state tort law was preempted.1221 It was impossible to comply both with the state law duty

to change the label and the federal law duty to keep the label the

same.1222 The four dissenting Justices argued that inability to change

the labels unilaterally was insufficient, standing alone, to establish

a defense based on impossibility.1223 Emphasizing the federal duty

to monitor the safety of their drugs, the dissenters would require

that the generic manufacturers also show some effort to effectuate

a labeling change through the FDA.

The Court reached a similar result in Mutual Pharmaceutical

Co. v. Bartlett.

1224 There, the Court again faced the question of whether

the FDA labeling requirements preempted state tort law in a case

involving sales by a generic drug manufacturer. The lower court had

held that it was not impossible for the manufacturer to comply with

both the FDA’s labeling requirements and state law that required

stronger warnings regarding the drug’s safety because the manufacturer could simply stop selling the drug. The Supreme Court rejected the “stop-selling rationale” because that rationale “would render impossibility pre-emption a dead letter and work a revolution

in . . . pre-emption case law.” 1225

In contrast to Pliva, Inc. v. Mensing and Mutual Pharmaceutical Co. v. Bartlett, the Court found no preemption in Wyeth v.

Levine,

1226 a state tort action against a brand-name drug manufacturer based on inadequate labeling. A brand-name drug manufacturer, unlike makers of generic drugs, could unilaterally strengthen

labeling under federal regulations, subject to subsequent FDA override, and thereby independently meet state tort law requirements.

1221 564 U.S. ___, No. 09–993, slip op. (2011) (Thomas, J.).

1222 Justice Thomas, joined on point by three others, characterized the Supremacy Clause phrase “any [state law] to the Contrary notwithstanding” as a non

obtstante provision that “suggests that federal law should be understood to impliedly

repeal conflicting state law” and indicates limits on the extent to which courts should

seek to reconcile federal and state law in preemption cases. 564 U.S. ___, No. 09–

993, slip op. at 15–17 (2011) (Thomas, J.).

1223 564 U.S. ___, No. 09–993, slip op. (2011) (Sotomayor, J., dissenting).

1224 570 U.S. ___, No. 12–142, slip op. (2013).

1225 Id. at 1–2.

1226 555 U.S. ___, No. 06–1249, slip op. (2009).

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286 ART. I—LEGISLATIVE DEPARTMENT
In another case of alleged impossibility, it was held possible for an

employer to comply both with a state law mandating leave and reinstatement to pregnant employees and with a federal law prohibiting employment discrimination on the basis of pregnancy.1227 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.1228

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.1229 Thus, despite the inclusion of a saving clause preserving liability under common

law, the National Traffic and Motor Vehicle Safety Act nevertheless

1227 California Federal Savings & Loan Ass’n v. Guerra, 479 U.S. 272 (1987).

Compare Cloverleaf Butter Co. 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).

1228 Florida Lime & Avocado Growers v. Paul, 373 U.S. 132 (1963).

1229 The standard is drawn from Hines v. Davidowitz, 312 U.S. 52, 67 (1941),

which often is held out as a leading example of field preemption analysis. When

“frustration of purpose” predominates in an opinion, it may be fairer to characterize

the issue as one of conflict preemption, rather than field preemption, for the possibility of a limited state role would appear to be implicitly recognized. Arizona v. United

States, in which the Court found three of the four Arizona immigration provisions it

examined to be preempted, illustrates the continuum from field to conflict analysis.

In overturning state penalties for violations of federal alien registration requirements, the Court found the sweep and detail of the federal law to leave no room

whatsoever for state regulation. In overturning state sanctions against unauthorized aliens seeking employment or working, the Court emphasized that the comprehensive system of federal employer sanctions eschewed employee sanctions, and allowing states to impose them would upset the careful policy balance struck by Congress.

In overturning state authority to arrest individuals believed to be deportable on criminal grounds, the Court did not examine whether state officers have any inherent

arrest authority in deportation cases, but rather found that allowing states to engage in such arrests as a general matter creates an obstacle to congressional objectives. And finally, the Court declined to overturn on its face a state policy of checking the immigration status of individuals stopped by the police for general law

enforcement purposes, finding that federal law facilitated status checks and only implementation of the status check policy would disclose whether federal enforcement policy

ultimately would be frustrated. 567 U.S. ___, No. 11–182, slip op. (2012).

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); Hillman v.

Maretta, 569 U.S. ___, No. 11–1221, slip op. (2013) (state law cause of action against

ex-spouse for life insurance proceeds paid under a designation of beneficiary in a

federal employee policy held to be preempted by federal employee insurance statute

giving employees the right to designate a beneficiary; beyond administrative convenience, Congress intended that the proceeds actually belong to named beneficiary).

Unsurprisingly, the Justices at times disagree on what Congress’s primary objectives and purposes were in passing particular legislation, and such a disagreement

can end with different conclusions about whether state law has been preempted.

See AT&T Mobility, LLC v. Concepcion, 563 U.S. ___, No. 09–893, slip op. (2011).

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was found to have preempted a state common law tort action based

on the failure of a car manufacturer to install front seat airbags:

Giving car manufacturers some leeway in developing and introducing passive safety restraint devices was, according to the Court, a

key congressional objective under the Act, one that would frustrated should a tort action be allowed to proceed.1230 The Court also

has 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.1231 In Felder v. Casey,

1232 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.1233

In Boggs v. Boggs,

1234 the Court, 5-to-4, applied the “stands as

an obstacle” test for conflict even though the statute (ERISA) 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

1230 Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

1231 Jones v. Rath Packing Co., 430 U.S. 519, 532–543 (1977).

1232 487 U.S. 131 (1988).

1233 Philco Aviation v. Shacket, 462 U.S. 406 (1983).

1234 520 U.S. 833 (1997).

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288 ART. I—LEGISLATIVE DEPARTMENT
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 pre-emption.” 1235

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.1236

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.” 1237

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 associations.1238 And a state assertion of the right to set minimum streamflow 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

1235 520 U.S. 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.

1236 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).

1237 530 U.S. at 374 n.8.

1238 Michigan 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).

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“relating to the control, appropriation, use, or distribution of water.” 1239

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.1240 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, because the federal antitrust laws had been interpreted to not permit indirect purchasers to recover under federal

law; the state law may have been inconsistent with federal law but

in no way did it frustrate federal objectives and policies.1241 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.1242

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 labormanagement relations. Although the Court some time ago reached

a settled rule, changes in membership on the Court re-opened the

issue and modified the rules.

With the enactment of the National Labor Relations Act and

subsequent amendments, Congress declared a national policy in labormanagement relations and established the NLRB to carry out that

policy.1243 It became the Supreme Court’s responsibility to deter1239 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).

1240 Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 614–16 (1991).

1241 California v. ARC America Corp., 490 U.S. 93 (1989).

1242 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 antitakeover law); Rose v. Rose, 481 U.S. 619 (1987) (provision governing veterans’ disability benefits protects veterans’ families as well as veterans, hence state childsupport order resulting in payment out of benefits is not preempted).

1243 Throughout 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,

because 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

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290 ART. I—LEGISLATIVE DEPARTMENT
mine 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.1244 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,1245 and 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.1246

By contrast, 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.1247 And

state statutes providing for mediation and outlawing public utility

strikes were similarly voided as being in specific conflict with federal law.1248 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.1249 The

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).

1244 Allen-Bradley Local No. 1111 v. WERB, 315 U.S. 740 (1942).

1245 United Automobile Workers v. WERB, 336 U.S. 245 (1949), overruled by Machinists & Aerospace Workers v. WERC, 427 U.S. 132 (1976).

1246 Algoma Plywood Co. v. WERB, 336 U.S. 301 (1949).

1247 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 involved in racketeering and other criminal conduct, were not inconsistent with federal law. Brown v. Hotel Employees, 468 U.S. 491 (1984).

1248 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).

1249 Weber 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 a practice of a state labor commissioner preempted because it stood as an

obstacle to the achievement of the purposes of NLRA). 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.

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ART. I—LEGISLATIVE DEPARTMENT 291
latter approach was predominant through the 1950s, as the Court

voided state court action in enjoining 1250 or awarding damages 1251

for peaceful picketing, in awarding of relief by damages or otherwise for conduct that constituted an unfair labor practice under federal law,1252 or in enforcing state antitrust laws so as to affect collective bargaining agreements 1253 or to bar a strike as a restraint

of trade,1254 even with regard to disputes over which the NLRB declined to assert jurisdiction because of the degree of effect on interstate commerce.

In San Diego Building Trades Council v. Garmon,

1255 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 National

Labor Relations Board if the danger of state interference with national policy is to be averted.” 1256

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 narrowly drawn injunctions directed against violence and mass picketing have been

permitted 1257 as well as damages to compensate for harm growing

out of such activities.1258

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 Employes’ Dep’t 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).

1250 Garner 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).

1251 San Diego Building Trades Council v. Garmon, 353 U.S. 26 (1957).

1252 Guss v. Utah Labor Board, 353 U.S. 1 (1957).

1253 Teamsters Union v. Oliver, 358 U.S. 283 (1959).

1254 Weber v. Anheuser-Busch, Inc., 348 U.S. 468 (1955).

1255 359 U.S. 236 (1959).

1256 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. Ariane

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).

1257 United Automobile Workers v. WERB, 351 U.S. 266 (1956); Youngdahl v.

Rainfair, 355 U.S. 131 (1957).

1258 United Automobile Workers v. Russell, 356 U.S. 634 (1958); United Construction Workers v. Laburnum Constr. Corp., 347 U.S. 656 (1954).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

292 ART. I—LEGISLATIVE DEPARTMENT
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.1259 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.1260 Gonzales was said to be limited to “purely internal union matters.” 1261 Finally, Gonzales, was abandoned in a fiveto-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.1262 Justice Harlan wrote for the Court that, although it was not likely that, in Gonzales, a state court resolution

of the scope of duty owed the member by the union would implicate principles of federal law, state court resolution in this case involved an interpretation of the contract’s union security clause, a

matter on which federal regulation is extensive.1263

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,

1264 the Court permitted a state court adjudication

of a defamation action arising out of a labor dispute. And, in Letter

Carriers v. Austin,

1265 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

1259 International Ass’n of Machinists v. Gonzales, 356 U.S. 617 (1958).

1260 Journeymen & Plumbers’ Union 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).

1261 373 U.S. at 697 (Borden), and 705 (Perko).

1262 Amalgamated Ass’n of Street Employees v. Lockridge, 403 U.S. 274 (1971).

1263 403 U.S. at 296.

1264 383 U.S. 53 (1966).

1265 418 U.S. 264 (1974).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 293
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 tortuous 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.1266

A significant retrenchment of Garmon occurred in Sears, Roebuck & Co. v. Carpenters,

1267 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 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” 1268 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

1266 Farmer 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).

1267 436 U.S. 180 (1978).

1268 San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244 (1959).

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294 ART. I—LEGISLATIVE DEPARTMENT
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.1269

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 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.1270

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,1271 which authorizes suits in federal, and

state,1272 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 pre1269 Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 190–98 (1978).

1270 436 U.S. at 199–207.

1271 61 Stat. 156 (1947), 29 U.S.C. § 185(a).

1272 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).

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ART. I—LEGISLATIVE DEPARTMENT 295
emption 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.1273

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 collectivebargaining agreement.1274 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.1275

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.1276 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.1277

1273 Smith 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).

1274 See 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).

1275 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

was negligent in inspecting a mine, the duty to inspect being created by the collectivebargaining agreement preempted).

1276 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). Cf. New York Telephone

Co. v. New York Labor Dept., 440 U.S. 519 (1979).

1277 Metropolitan 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).

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296 ART. I—LEGISLATIVE DEPARTMENT
COMMERCE WITH INDIAN TRIBES

Congress’s power to regulate commerce “with the Indian tribes,”

once almost rendered superfluous by Court decision,1278 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,1279 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.1280 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.” 1281

Forsaking reliance upon 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.1282 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 promot1278 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).

1279 16 Stat. 544, 566, 25 U.S.C. § 71.

1280 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).

1281 McClanahan 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, 419

U.S. 544, 553–56 (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); United States v.

Lara, 541 U.S. 193, 200 (2004).

1282 White 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).

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ART. I—LEGISLATIVE DEPARTMENT 297
ing tribal independence and economic development, 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.” 1283 A

corollary is that the preemption doctrine will not be applied strictly

to prevent states from aiding Native Americans.1284 However, the

protective rule is inapplicable to state regulation of liquor transactions, because there has been no tradition of tribal sovereignty with

respect to that subject.1285

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” 1286—

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.1287 Off-reservation Indian activities

require an express federal exemption to deny state taxing power.1288

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.1289

1283 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).

1284 Three 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).

1285 Rice v. Rehner, 463 U.S. 713 (1983).

1286 McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 165 (1973).

1287 Mescalero 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 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).

1288 Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148–149 (1973).

1289 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Central Machinery Co. v. Arizona State Tax Comm’n, 448 U.S. 160 (1980); Ramah Navajo School

Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982).

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298 ART. I—LEGISLATIVE DEPARTMENT
That operating premise, however, seems to have been eroded.

For example, in Cotton Petroleum Corp. v. New Mexico,

1290 the Court

held that, despite 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,1291 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.” 1292 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 selfdetermination and self-governance, denominated these as “policy”

arguments properly presented to Congress rather than the Court.1293

The impact on tribal sovereignty is also a prime determinant of

relative state and tribal regulatory authority.1294

Since Worcester v. Georgia,

1295 the Court has recognized that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory.1296 They are, of

1290 490 U.S. 163 (1989).

1291 Held permissible in Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982).

1292 490 U.S. at 185 (distinguishing Bracker and Ramah Navaho School Bd).

1293 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).

1294 E.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).

1295 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 that 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, 512–13 (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).

1296 United States v. Wheeler, 435 U.S. 313 (1978) (inherent sovereign power to

punish tribal offenders). 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). See also 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

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

ART. I—LEGISLATIVE DEPARTMENT 299
course, no longer possessed of the full attributes of sovereignty,1297

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.” 1298

In a case of major import for the settlement of Indian land claims,

the Court ruled in County of Oneida v. Oneida Indian Nation,

1299

that an Indian tribe may obtain damages for wrongful possession

of land conveyed in 1795 without the federal approval required by

the Nonintercourse Act.1300 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 abrogate Indian

treaty rights or extinguish aboriginal land title only if it does so

clearly and unambiguously. Consequently, federal approval of landconveyance treaties containing references to earlier conveyances that

had violated the Nonintercourse Act did not constitute ratification

of the invalid conveyances.1301 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.1302

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).

1297 United States v. Kagama, 118 U.S. 375, 381 (1886); United States v. Wheeler,

435 U.S. 313, 323 (1978).

1298 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). Congress may also remove restrictions on tribal sovereignty. The Court

has held that, absent authority from federal statute or treaty, tribes possess no criminal authority over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978). The Court also held, in Duro v. Reina, 495 U.S. 676 (1990), that a 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. Congress, however, quickly enacted a statute recognizing inherent authority of tribal governments to exercise criminal jurisdiction over

non-member Indians, and the Court upheld congressional authority to do so in United

States v. Lara, 541 U.S. 193 (2004).

1299 470 U.S. 226 (1985).

1300 1 Stat. 379 (1793).

1301 470 U.S. at 246–48.

1302 470 U.S. at 255, 257 (Justice Stevens).

Sec. 8—Powers of Congress Cl. 3—Power to Regulate Commerce

300 ART. I—LEGISLATIVE DEPARTMENT
Although the power of Congress over Indian affairs is broad, it

is not limitless.1303 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’s

unique obligation toward the Indians . . . ” 1304 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.1305

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.

NATURALIZATION AND CITIZENSHIP

Nature and Scope of Congress’s 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.” 1306 In the Dred Scott case,1307 the Court asserted

that the power of Congress under this clause applies only to “persons born in a foreign country, under a foreign Government.” 1308

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

1303 “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)).

1304 Morton 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).

1305 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).

1306 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892).

1307 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

1308 60 U.S. at 417.

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 301
the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other

countries.” 1309

Congress’s power over naturalization is an exclusive power; no

state has the independent power to constitute a foreign subject a

citizen of the United States.1310 But power to naturalize aliens under federal standards may be, and was early, devolved by Congress

upon state courts of record.1311 And though the states may not prescribe requirements for citizenship, they may confer rights, including political rights, to resident aliens. At one time, it was not uncommon for states to confer the right of suffrage upon resident aliens,

especially upon those who had declared their intention to become

citizens, and several states continued to do so until well into the

twentieth century.1312

Citizenship by naturalization is a privilege to be given or withheld as Congress may determine: “It is not within the province of

the courts to make bargains with those who seek naturalization.

They must accept the grant and take the oath in accordance with

the terms fixed by the law, or forego the privilege of citizenship.

There is no middle choice.” 1313 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 “free white person[s],” 1314 which was expanded in 1870

1309 Mackenzie v. Hare, 239 U.S. 299, 311 (1915).

1310 Chirac v. Chirac, 15 U.S. (2 Wheat.) 259, 269 (1817); United States v. Wong

Kim Ark, 169 U.S. 649, 701 (1898).

1311 The 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), the Court held that Congress may provide for the punishment of false swearing in the proceedings in state

courts.

1312 Rosberg, Aliens and Equal Protection: Why Not the Right to Vote?, 75 MICH.

L. REV. 1092 (1977). See Spragins v. Houghton, 3 Ill. 377 (1840); Stewart v. Foster, 2

Binn. (Pa.) 110 (1809). See also K. PORTER, A HISTORY OF SUFFRAGE IN THE UNITED STATES

ch. 5 (1918).

1313 United States v. Macintosh, 283 U.S. 605 (1931). See also Fong Yue Ting v.

United States, 149 U.S. 698, 707–08 (1893). Though Congress broadly controls the

path to naturalization in the United States, it is restricted in conditioning the retention of citizenship so conferred. The Fourteenth Amendment declares persons born

or naturalized in the United States to be citizens, and Congress may not distinguish among classes of “Fourteenth Amendment” citizens in setting rules for expatriation (assuming the absence of fraud in obtaining naturalization). Schneider v.

Rusk, 377 U.S. 163 (1964). By contrast, Congress controls by statute who born abroad

becomes a U.S. citizen at birth (based generally on the citizenship status of the parents), at times has conditioned this “statutory” citizenship on subsequent periodic

residence in the United States, and has had relinquishment of citizenship for failure to meet this condition subsequent upheld by the Court. Rogers v. Bellei, 401

U.S. 815 (1971).

1314 1 Stat. 103 (1790).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

302 ART. I—LEGISLATIVE DEPARTMENT
so that persons of “African nativity and . . . descent” were entitled

to be naturalized.1315 “Chinese laborers” were specifically excluded

from eligibility in 1882,1316 and the courts enforced these provisions without any indication that constitutional issues were thereby

raised.1317 These exclusions are no longer law. Present naturalization statutes continue to require loyalty and good moral character

and generally bar subversives, terrorists, and criminals, among others, from citizenship.1318

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,1319 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,1320 or through treaty provision.1321

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.1322 This contemplation is given statutory expression in § 301

of the Immigration and Nationality Act of 1952,1323 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

1315 Act of July 14, 1870, § 7, 16 Stat. 254, 256.

1316 Act of May 6, 1882, § 1, 22 Stat. 58. The statute defined “Chinese laborers”

to mean “both skilled and unskilled laborers and Chinese employed in mining.” 22

Stat. 61.

1317 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 (9th Cir. 1942), cert. denied, 317 U.S. 634 (1942).

1318 The 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) and

periodically thereafter. The present law is discussed in The Naturalization of Aliens,

infra.

1319 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen

of the United States”).

1320 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United

States, 179 U.S. 191 (1900).

1321 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168–69 (1892).

1322 United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).

1323 66 Stat. 235, 8 U.S.C. § 1401.

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 303
declaring that all persons born in the United States and subject to

the jurisdiction thereof are citizens by birth.1324 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,1325 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.1326 The principal difference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections.1327

1324 § 301(a)(1), 8 U.S.C. § 1401(a)(1).

1325 Rogers v. Bellei, 401 U.S. 815 (1971).

1326 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).

1327 Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. MendozaMartinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

304 ART. I—LEGISLATIVE DEPARTMENT
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.” 1328 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.1329 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.” 1330

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.” 1331 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,” 1332 adulterers,1333 polygamists or advocates of polygamy,1334 gamblers,1335

convicted felons,1336 and homosexuals.1337 In order to petition for

1328 § 311, 66 Stat. 239 (1952), 8 U.S.C. § 1422.

1329 § 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).

1330 § 313(c), 66 Stat. 241 (1952), 8 U.S.C. § 1424(c).

1331 § 316(a)(3), 66 Stat. 242, 8 U.S.C. § 1427(a)(3).

1332 § 101(f)(1), 66 Stat. 172, 8 U.S.C. § 1101(f)(1).

1333 § 101(f)(2), 66 Stat. 172, 8 U.S.C. § 1101(f)(2).

1334 § 212(a)(11), 66 Stat. 182, 8 U.S.C. § 1182(a)(11).

1335 § 101(f)(4) and (5), 66 Stat. 172, 8 U.S.C. § 1101(f)(4) and (5).

1336 § 101(f)(7) and (8), 66 Stat. 172, 8 U.S.C. § 1101(f)(7) and (8).

1337 § 212(a)(4), 66 Stat. 182, 8 U.S.C. § 1182(a)(4), barring aliens afflicted with

“psychopathic personality,” “a term of art intended to exclude homosexuals from entry into the United States.” Boutilier v. Immigration and Naturalization Service, 387

U.S. 118, 119 (1967).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 305
naturalization, an alien must have been resident for at 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.” 1338

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.1339 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.1340

1338 § 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.

1339 § 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). See also 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).

1340 340(c), 66 Stat. 261 (1952), 8 U.S.C. § 1451(c). The time period had previously been five years.

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

306 ART. I—LEGISLATIVE DEPARTMENT
Rights of Naturalized Persons

Chief Justice Marshall early stated in dictum that “[a] naturalized citizen . . . becomes a member of the society, possessing all the

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.” 1341 A similar idea was expressed in Knauer

v. United States.

1342 “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.1343 And the naturalized citizen within a year

of his naturalization will join a questionable organization at his

peril.1344 In Luria v. United States,

1345 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.

1341 Osborn 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 275–76 (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.

1342 328 U.S. 654, 658 (1946).

1343 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).

1344 See 8 U.S.C. § 1451(c).

1345 231 U.S. 9 (1913). The provision has been modified to reduce the period to

one year. 8 U.S.C. § 1451(d).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 307
Rusk,

1346 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 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.” 1347 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.1348 “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 nativeborn. 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 nativeborn, is no badge of lack of allegiance and in no way evidences a

voluntary renunciation of nationality and allegiance.” 1349

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.1350 But in

Rogers v. Bellei,

1351 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

1346 377 U.S. 163 (1964).

1347 377 U.S. at 165.

1348 Although 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. In fact, “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” Buckley v. Valeo,

424 U.S. 1, 93 (1976).

1349 Schneider v. Rusk, 377 U.S. 163, 168–69 (1964).

1350 Afroyim v. Rusk, 387 U.S. 253 (1967).

1351 401 U.S. 815 (1971).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

308 ART. I—LEGISLATIVE DEPARTMENT
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 ‘second-class.’ ” 1352

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.1353

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.1354 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.1355

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,1356 and Chancellor Kent, in his writings,1357 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

1352 401 U.S. at 835–36.

1353 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.

1354 Perkins 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).

1355 Governeur 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).

1356 Shanks v. DuPont, 28 U.S. (3 Pet.) 242, 246 (1830).

1357 2 J. KENT, COMMENTARIES 49–50 (1827).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 309
the power in Congress.1358 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 was directed to affirming the right of foreign nationals to expatriate themselves and to become naturalized United States citizens.1359 An 1865

law provided for the forfeiture of the “rights of citizenship” of draftdodgers and deserters, but whether the statute meant to deprive

such persons of citizenship or of their civil rights is unclear.1360 Beginning in 1940, however, Congress did enact laws designed to strip

of their citizenship persons who committed treason,1361 deserted the

armed forces in wartime,1362 left the country to evade the draft,1363

or attempted to overthrow the government by force or violence.1364

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.1365

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.” 1366 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

1358 J. TENBROEK, ANTI-SLAVERY ORIGINS OF THE FOURTEENTH AMENDMENT 71–94 (1951);

see generally J. ROCHE, THE EARLY DEVELOPMENT OF UNITED STATES CITIZENSHIP (1949).

1359 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, 135–36 (1952). Cf. Savorgnan v. United States, 338 U.S.

491, 498 n.11 (1950).

1360 The 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).

1361 Nationality Act of 1940, 54 Stat. 1169.

1362 Id.

1363 58 Stat. 746 (1944).

1364 68 Stat. 1146 (1954).

1365 34 Stat. 1228 (1907), repealed by 42 Stat. 1021 (1922).

1366 Perkins v. Elg, 307 U.S. 325, 334 (1939).

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310 ART. I—LEGISLATIVE DEPARTMENT
need not intend to renounce so long as he intended to do what he

did in fact do.1367

The Court first encountered the constitutional issue of forced

expatriation in the rather anomalous form of the statute,1368 which

placed in limbo the citizenship of any American female who married a foreigner. Sustaining the statute, the Court relied on the congressional 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.1369

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.1370 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.1371 But at the

same time, another five-to-four decision, in which a majority rationale was lacking, struck down punitive expatriation visited on per1367 Mackenzie v. Hare, 239 U.S. 299, 309, 311–12 (1915); Savorgnan v. United

States, 338 U.S. 491, 506 (1950).

1368 34 Stat. 1228 (1907).

1369 Mackenzie v. Hare, 239 U.S. 299 (1915).

1370 See 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.

1371 Perez 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’s power

to prescribe for an act, like voting, which is not necessarily a sign of intention to

relinquish citizenship.

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sons convicted by court-martial of desertion from the armed forces

in wartime.1372 In the next case, the Court struck down another punitive expatriation visited on persons who, in time of war or emergency, leave or remain outside the country in order to evade military service.1373 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.1374

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,

1375 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.1376 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.1377 Thus, although Afroyim was distinguished,

1372 Trop 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’s 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 punishment and

denied that it was punishment at all “in any valid constitutional sense.” Id. at 124.

1373 Kennedy 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’s war powers but the four dissenters divided two-to-two on the

validity of a presumption spelled out in the statute.

1374 Schneider v. Rusk, 377 U.S. 163 (1964).

1375 387 U.S. 253 (1967).

1376 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.

1377 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

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the tenor of the majority opinion was hostile to its holding, and it

may be that a future case will overrule it.

The issue, then, of the constitutionality of congressionally prescribed expatriation is unsettled.

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.” 1378

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.

1378 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), aff’g 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 thereSec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 313
Except for the Alien Act of 1798,1379 Congress went almost a

century without enacting laws regulating immigration into the United

States. The first such statute, in 1875, barred convicts and prostitutes 1380 and was followed by a series of exclusions based on health,

criminal, moral, economic, and subversion considerations.

1381 Another important phase was begun with passage of the Chinese Exclusion Act in 1882,1382 which was not repealed until 1943.1383 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.1384 This national origins quota system was in effect until it was repealed in

1965.1385 The basic law remains the Immigration and Nationality

Act of 1952,1386 which retains its essential structure while undergoing several significant revisions. These revisions have included a

temporary legalization program for certain unauthorized aliens, employer sanctions, a general expansion and tightening of rules for

fore 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. 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

(7th Cir. 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).

1379 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.

1380 Act of March 3, 1875, 18 Stat. 477.

1381 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).

1382 Act of May 6, 1882, 22 Stat. 58.

1383 Act of December 17, 1943, 57 Stat. 600.

1384 Act of May 26, 1924, 43 Stat. 153.

1385 Act of October 3, 1965, Pub. L. 89–236, 79 Stat. 911.

1386 Act of June 27, 1952, Pub. L. 82–414, 66 Stat. 163, 8 U.S.C. §§ 1101 et seq.

as amended.

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314 ART. I—LEGISLATIVE DEPARTMENT
removal, changes in categories of aliens who may enter temporarily, and more express provisions on federal-state cooperation in immigration enforcement.

Numerous cases underscore the sweeping nature of the powers

of the Federal Government to exclude aliens and to deport aliens

by administrative process. For example, in United States ex rel. Knauff

v. Shaughnessy,

1387 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,1388

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 interests 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.” 1389 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.1390

Congress’s 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.” 1391 This principle, however, has not precluded all state regu1387 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).

1388 Under the War Brides Act of 1945, 59 Stat. 659.

1389 338 U.S. at 543.

1390 E.g., Immigration and Naturalization Service v. Errico, 385 U.S. 214 (1966).

1391 Takahashi 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

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 315
lations dealing with aliens.1392 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 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.1393

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.1394 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.1395

An important benefit of this comprehensive, uniform regulation

accruing to the alien is that it generally has precluded state regulation that may well be more severe and burdensome.1396 For exalso Hines v. Davidowitz, 312 U.S. 52, 66 (1941); Graham v. Richardson, 403 U.S.

365, 376–380 (1971).

1392 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, 646–49 (1973); De Canas

v. Bica, 424 U.S. 351 (1976); Cabell v. Chavez-Salido, 454 U.S. 432 (1982). See also

Chamber of Commerce of the United States v. Whiting, 563 U.S. ___, No. 09–115,

slip op. (2011).

1393 Purporting 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).

1394 54 Stat. 670, 8 U.S.C. §§ 1301–1306.

1395 See Hines v. Davidowitz, 312 U.S. 52, 69–70 (1941).

1396 In the 1990s, Congress began giving the states a larger role in the enforcement of federal immigration law. During this period, Congress also broadened the

states’ authority to deny aliens state benefits. Still, in the 2000s, states increasingly

asserted greater independent authority to deter the presence of illegal aliens within

their borders, both through curtailing benefits and assuming a more active role in

direct immigration enforcement. Most of these efforts foundered under court challenge, but some did not, resulting, in at least one instance, in the imposition of more

severe consequences under state law than under federal law for similar immigration violations. See Chamber of Commerce of the United States v. Whiting, 563 U.S.

___, No. 09–115, slip op. (2011). Nevertheless, the Whiting Court found a textual

basis in federal statute for the state sanctions imposed there. Absent text-based authority for separate state penalties for federal immigration violations, those state

penalties likely will fail on preemption grounds. Arizona v. United States, 567 U.S.

___, No. 11–182, slip op. (2012) (invalidating state sanctions on unauthorized aliens

seeking work in violation of federal law and striking state penalties for violations of

federal alien registration requirements). It would further appear that states must

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316 ART. I—LEGISLATIVE DEPARTMENT
ample, in Hines v. Davidowitz,

1397 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.1398

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.1399 Congress had provided, 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.1400 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.1401

ground their efforts to detect, arrest, and remove unauthorized aliens in authority

delegated by Congress. Id.

1397 312 U.S. 52 (1941).

1398 312 U.S. at 68. 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.

State sanctions for violating federal alien registration laws were overturned in Arizona v. United States, at least in part because the state penalties were greater than

those under federal law for the same violation. But see De Canas v. Bica, 424 U.S.

351 (1976), in which the Court, ten years prior to enactment of federal employer

sanctions, 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. For examples of state sanctions against unauthorized aliens that have

been struck on preemption grounds, see Arizona v. United States, 567 U.S. ___, No.

11–182, slip op. (2012).

1399 Graham 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).

1400 8 U.S.C. §§ 1182(a)(8), 1182(a)(15), 1251(a)(8).

1401 See 42 U.S.C. § 1981, applied in Takahashi v. Fish & Game Comm’n, 334

U.S. 410, 419 n.7 (1948).

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Deportation

Unlike the exclusion proceedings,1402 deportation proceedings afford the alien a number of constitutional rights: a right against selfincrimination,1403 protection against unreasonable searches and seizures,1404 guarantees against ex post facto laws, bills of attainder,

and cruel and unusual punishment,1405 a right to bail,1406 a right

to procedural due process,1407 a right to counsel,1408 a right to notice of charges and hearing,1409 and a right to cross-examine.1410

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.1411 Nor was it

unconstitutional to deport under the Alien Registration Act of 1940 1412

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.

1413 And a statutory provision 1414 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.” 1415 An alien unlawfully in the coun1402 See 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.”

1403 Kimm v. Rosenberg, 363 U.S. 405 (1960).

1404 Abel v. United States, 362 U.S. 217, 229 (1960).

1405 Marcello v. Bonds, 349 U.S. 302 (1955).

1406 Carlson v. Landon, 342 U.S. 524, 540 (1952).

1407 Wong 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.

1408 8 U.S.C. § 1252(b)(2).

1409 8 U.S.C. § 1252(b)(1).

1410 8 U.S.C. § 1252(b)(3).

1411 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.

1412 54 Stat. 670. For existing statutory provisions as to deportation, see 8 U.S.C.

§§ 1251 et seq.

1413 Carlson v. Landon, 342 U.S. 524 (1952).

1414 8 U.S.C. § 1252(e).

1415 United States v. Spector, 343 U.S. 169 (1952).

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318 ART. I—LEGISLATIVE DEPARTMENT
try “has no constitutional right to assert selective enforcement as a

defense against his deportation.” 1416

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.” 1417 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.1418 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.1419

This interpretation has been ratified by the Supreme Court. In

Hanover National Bank v. Moyses,

1420 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 bankruptcy laws to cover practically all classes of persons and corporations,1421 including even municipal corporations 1422 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.1423

1416 Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 488 (1999).

1417 Adams v. Storey, 1 Fed. Cas. 141, 142 (No. 66) (C.C.D.N.Y. 1817).

1418 2 Stat. 19 (1800).

1419 2 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1113 (1833).

1420 186 U.S. 181 (1902).

1421 Continental Bank v. Rock Island Ry., 294 U.S. 648, 670 (1935).

1422 United States v. Bekins, 304 U.S. 27 (1938), distinguishing Ashton v. Cameron County Dist., 298 U.S. 513 (1936).

1423 Perry v. Commerce Loan Co., 383 U.S. 392 (1966).

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ART. I—LEGISLATIVE DEPARTMENT 319
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,1424 as were

later acts, which provided for the reorganization of corporations that

are insolvent or unable to meet their debts as they mature,1425 and

for the composition and extension of debts in proceedings for the

relief of individual farmer debtors.1426

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.1427 Moreover,

the Court expanded the bankruptcy court’s power over the property of the estate by affording the trustee affirmative relief on counterclaim against a creditor filing a claim against the estate.1428

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.1429 United States v. Speers,

1430 codified by an amendment to the Bankruptcy Act,1431 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.1432 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

1424 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).

1425 Continental Bank v. Rock Island Ry., 294 U.S. 648 (1935).

1426 Wright v. Vinton Branch, 300 U.S. 440 (1937); Adair v. Bank of America

Ass’n, 303 U.S. 350 (1938).

1427 Wright v. Union Central Ins. Co., 304 U.S. 502 (1938).

1428 Katchen v. Landy, 382 U.S. 323 (1966).

1429 Bank of Marin v. England, 385 U.S. 99, 103 (1966).

1430 382 U.S. 266 (1965). Cf. United States v. Vermont, 337 U.S. 351 (1964).

1431 Act of July 5, 1966, 80 Stat. 269, 11 U.S.C. § 501, repealed.

1432 382 U.S. at 271–72.

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320 ART. I—LEGISLATIVE DEPARTMENT
“actual and necessary” cost of administration,1433 that benefits under a nonparticipating annuity plan are not wages and are therefore not given priority,1434 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.1435 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.,

1436 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.” 1437

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 use immunity may be granted “for persons required to

submit to examination, to testify, or to provide information” in a

bankruptcy case.1438 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; 1439 this principle, however, is subject to the Supreme

Court’s finding that a bankruptcy court has summary jurisdiction

for ordering the surrender of voidable preferences when the trustee

successfully counterclaims to a claim filed by the creditor receiving

such preferences.1440

Because Congress may not supersede the power of a state to

determine how a corporation shall be formed, supervised, and dissolved, a corporation that has been dissolved by a decree of a state

court may not file a petition for reorganization under the Bankruptcy Act.1441 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.1442 Although

it may not subject the fiscal affairs of a political subdivision of a

1433 Reading Co. v. Brown, 391 U.S. 471 (1968).

1434 Joint Industrial Bd. v. United States, 391 U.S. 224 (1968).

1435 Nicholas v. United States, 384 U.S. 678 (1966).

1436 294 U.S. 648 (1935).

1437 294 U.S. at 671.

1438 11 U.S.C. § 344.

1439 Louisville Bank v. Radford, 295 U.S. 555, 589, 602 (1935).

1440 Katchen v. Landy, 382 U.S. 323, 327–40 (1966).

1441 Chicago Title and Trust Co. v. Wilcox Bldg. Corp., 302 U.S. 120 (1937).

1442 In re Klein, 42 U.S. (1 How.) 277 (1843); Hanover National Bank v. Moyses,

186 U.S. 181 (1902).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 321
state to the control of a federal bankruptcy court,1443 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.1444 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; 1445 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.1446

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 1878.1447

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, because 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.1448 Later cases settled further that the enactment of a

national bankruptcy law does not invalidate state laws in conflict

1443 Ashton v. Cameron County Dist., 298 U.S. 513 (1936). See also United States

v. Bekins, 304 U.S. 27 (1938).

1444 United States v. Bekins, 304 U.S. 27 (1938).

1445 Stellwagon v. Clum, 245 U.S. 605 (1918); Hanover National Bank v. Moyses,

186 U.S. 181, 190 (1902).

1446 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

See also Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989) (Seventh Amendment

right to jury trial in bankruptcy cases).

1447 Hanover National Bank v. Moyses, 186 U.S. 181, 184 (1902).

1448 Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 199 (1819); Ogden v. Saunders,

25 U.S. (12 Wheat.) 213, 368 (1827).

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322 ART. I—LEGISLATIVE DEPARTMENT
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.1449

A state, of course, has no power to enforce any law governing

bankruptcies that impairs the obligation of contracts,1450 extends

to persons or property outside its jurisdiction,1451 or conflicts with

the national bankruptcy laws.1452 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,1453 and that a state court was without power to proceed with

pending foreclosure proceedings after a farmer-debtor had filed a

petition in federal bankruptcy court for a composition or extension

of time to pay his debts.1454 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 injunction.1455 A state law governing fraudulent transfers was found to be compatible with the

federal law.1456

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.1457 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 conse1449 Tua v. Carriere, 117 U.S. 201 (1886); Butler v. Goreley, 146 U.S. 303, 314

(1892).

1450 Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819).

1451 Ogden 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).

1452 In re Watts and Sachs, 190 U.S. 1, 27 (1903); International Shoe Co. v. Pinkus,

278 U.S. 261, 264 (1929).

1453 International Shoe Co. v. Pinkus, 278 U.S. 261, 265 (1929).

1454 Kalb v. Feurerstein, 308 U.S. 433 (1940).

1455 Ohio 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).

1456 Stellwagon v. Clum, 245 U.S. 605, 615 (1918).

1457 Reitz v. Mealey, 314 U.S. 33 (1941); Kesler v. Department of Pub. Safety,

369 U.S. 153 (1962); Perez v. Campbell, 402 U.S. 637 (1971).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

ART. I—LEGISLATIVE DEPARTMENT 323
quence 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.1458 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.1459

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.1460

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,1461 and it may restrain the

circulation of notes not issued under its own authority.1462 To this

end it may impose a prohibitive tax upon the circulation of the notes

of state banks 1463 or of municipal corporations.1464 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

1458 Reitz v. Mealey, 314 U.S. 33, 37 (1941); Kesler v. Department of Public Safety,

369 U.S. 153, 169–74 (1962).

1459 Perez v. Campbell, 402 U.S. 637, 644–48, 651–54 (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.

1460 New York v. Irving Trust Co., 288 U.S. 329 (1933).

1461 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).

1462 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

1463 75 U.S. at 548.

1464 National Bank v. United States, 101 U.S. 1 (1880).

Sec. 8—Powers of Congress Cl. 4—Naturalization and Bankruptcies

324 ART. I—LEGISLATIVE DEPARTMENT
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.1465 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,” 1466 the Supreme Court sustained the power of Congress to

make Treasury notes legal tender in satisfaction of antecedent debts,1467

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.1468 The power to coin

money also imports authority to maintain such coinage as a medium of exchange at home, and to forbid its diversion to other uses

by defacement, melting or exportation.1469

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.1470 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.1471 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,” 1472 it has sustained

federal statutes penalizing the importation or circulation of counterfeit coin,1473 or the willing and conscious possession of dies in the

likeness of those used for making coins of the United States.1474 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

1465 Nortz v. United States, 249 U.S. 317 (1935).

1466 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 549 (1871); Juilliard v. Greenman, 110 U.S. 421, 449 (1884).

1467 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871).

1468 Norman v. Baltimore & Ohio R.R., 294 U.S. 240 (1935).

1469 Ling Su Fan v. United States, 218 U.S. 302 (1910).

1470 United States v. Marigold, 50 U.S. (9 How.), 560, 568 (1850).

1471 Fox v. Ohio, 46 U.S. (5 How.) 410 (1847).

1472 United States v. Marigold, 50 U.S. (9 How.) 560, 568 (1850).

1473 Id.

1474 Baender v. Barnett, 255 U.S. 224 (1921).

Sec. 8—Powers of Congress Cls. 5 and 6—Money

ART. I—LEGISLATIVE DEPARTMENT 325
it is authorized to punish. The enumeration was unnecessary and

is not exclusive.1475

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,1476 or making its treasury notes legal tender in the payment of antecedent debts.1477 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 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.1478 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.” 1479 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 using the survivorship privilege whenever bonds

are paid out of community property.1480

Clause 7. The Congress shall have Power * * * To establish

Post Offices and post roads.

1475 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 536 (1871).

1476 McCulloch 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).

1477 Legal Tender Cases (Knox v. Lee), 79 U.S. (12 Wall.) 457, 540–47 (1871).

1478 Perry v. United States, 294 U.S. 330, 353 (1935).

1479 294 U.S. at 361.

1480 Free v. Bland, 369 U.S. 663 (1962).

Sec. 8—Powers of Congress Cls. 5 and 6—Money

326 ART. I—LEGISLATIVE DEPARTMENT
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.1481 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 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.1482

The debate on the question was terminated in 1876 by the decision

in Kohl v. United States,

1483 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.1484 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.1485 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 widespread disor1481 United States v. Railroad Bridge Co., 27 Fed. Cas. 686 (No. 16,114) (C.C.N.D.

Ill. 1855).

1482 Searight v. Stokes, 44 U.S. (3 How.) 151, 166 (1845).

1483 91 U.S. 367 (1876).

1484 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.

1485 Searight v. Stokes, 44 U.S. (3 How.) 151, 169 (1845).

Sec. 8—Powers of Congress Cl. 7—Post Office

ART. I—LEGISLATIVE DEPARTMENT 327
der interfering with interstate commerce and the transmission of

the mails.1486

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.1487 On this point his reasoning would appear to be vindicated by such decisions as those

denying the right of the states to prevent the importation of alcoholic beverages from other states.1488

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,

1489 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.” 1490 The leading fraud order case, decided in 1904, held to

the same effect.1491 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.” 1492

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, indebt1486 In re Debs, 158 U.S. 564, 599 (1895).

1487 Cong. Globe, 24th Cong., 1st Sess., 3, 10, 298 (1835).

1488 Bowman v. Chicago & Nw. Ry., 125 U.S. 465 (1888); Leisy v. Hardin, 135

U.S. 100 (1890).

1489 96 U.S. 727 (1878).

1490 96 U.S. at 732.

1491 Public Clearing House v. Coyne, 194 U.S. 497 (1904), followed in Donaldson

v. Read Magazine, 333 U.S. 178 (1948).

1492 194 U.S. at 506.

Sec. 8—Powers of Congress Cl. 7—Post Office

328 ART. I—LEGISLATIVE DEPARTMENT
edness, 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 second-class

privilege from exploitation by mere advertising publications.1493 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

. . . .” 1494 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.1495

A unanimous Court transformed these reservations into a holding in Lamont v. Postmaster General,

1496 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.1497 The statute violated the First Amendment because it inhibited the right of persons to receive any information

that they wished to receive.1498

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

1493 Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913).

1494 229 U.S. at 316.

1495 United States ex rel. Milwaukee Social Democratic Pub. 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.

1496 381 U.S. 301 (1965).

1497 381 U.S. at 305, quoting Justice Holmes in United States ex rel. Milwaukee Social Democratic Pub. 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. . . .” See also Blount v. Rizzi, 400 U.S. 410, 416 (1971)

(quoting same language). But for a different perspective on the meaning and application of 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).

1498 Lamont v. Postmaster General, 381 U.S. 301, 306–07 (1965). See also id. at

308 (concurring opinion). This was the first federal statute ever voided for being in

conflict with the First Amendment.

Sec. 8—Powers of Congress Cl. 7—Post Office

ART. I—LEGISLATIVE DEPARTMENT 329
to foist his material on any unwilling receiver.1499 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.1500

Exclusive Power as an Adjunct to Other Powers

The cases just reviewed involved attempts to close the mails to

communication that were deemed to be harmful. A much broader

power of exclusion was asserted in the Public Utility Holding Company Act of 1935.1501 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 treated this provision as a penalty. Although it held this statute constitutional because the regulations whose infractions were thus penalized were

themselves valid,1502 it declared that “Congress may not exercise

its control over the mails to enforce a requirement which lies outside its constitutional province. . . .” 1503

State Regulations Affecting the Mails

In determining the extent to which state laws may impinge upon

persons or corporations whose services are used 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.1504

An Illinois statute that, 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 uncon1499 Rowan v. Post Office Dep’t, 397 U.S. 728 (1970).

1500 Blount v. Rizzi, 400 U.S. 410 (1971).

1501 49 Stat. 803, 812, 813, 15 U.S.C. §§ 79d, 79e.

1502 Electric Bond & Share Co. v. SEC, 303 U.S. 419 (1938).

1503 303 U.S. at 442.

1504 Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S. 1 (1878).

Sec. 8—Powers of Congress Cl. 7—Post Office

330 ART. I—LEGISLATIVE DEPARTMENT
stitutional interference with the power of Congress under this

clause.1505 But a Minnesota statute requiring intrastate trains to

stop at county seats was found to be unobjectionable.1506

Local laws classifying postal workers with railroad employees

for the purpose of determining a railroad’s liability for personal injuries,1507 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,1508 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,1509 but it cannot punish a person for operating a mail truck over its highways without

procuring a driver’s license from state authorities.1510

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

Origins and 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. As

to patents, 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.1511 Copyright law, in

turn, traces back to the Statute of Anne of 1710, which secured to

authors of books sole publication rights for designated periods.1512

These English statutes curtailed the royal prerogative to bestow monopolies to Crown favorites over works and products they did not

create and many of which had long been enjoyed by the public.1513

Informed by these precedents and colonial practice, the Framers re1505 Illinois Cent. R.R. v. Illinois, 163 U.S. 142 (1896).

1506 Gladson v. Minnesota, 166 U.S. 427 (1897).

1507 Price v. Pennsylvania R.R., 113 U.S. 218 (1895); Martin v. Pittsburgh & Lake

Erie R.R., 203 U.S. 284 (1906).

1508 Railway Mail Ass’n v. Corsi, 326 U.S. 88 (1945).

1509 United States v. Kirby, 74 U.S. (7 Wall.) 482 (1869).

1510 Johnson v. Maryland, 254 U.S. 51 (1920).

1511 Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 17, 18 (1829).

1512 Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 656, 658 (1834).

1513 Cf. Graham v. John Deere Co., 383 U.S. 1, 5, 9 (1966). See also Golan v.

Holder, 565 U.S. ___, No. 10–545, slip op. at 3 (2012) (Breyer, J., dissenting).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

ART. I—LEGISLATIVE DEPARTMENT 331
stricted the power to confer monopolies over the use of intellectual

property through the Copyright and Patent Clause. For example,

the “exclusive Right” conferred to the writings of authors and the

discoveries of inventors must be time limited. Another fundamental limitation inheres in the phrase “[t]o promote the Progress of

Science and useful Arts”: To merit copyright protection, a work must

exhibit originality, embody some creative expression; 1514 to merit

patent protection, an invention must be an innovative advancement, “push back the frontiers.” 1515 Also deriving from the phrase

“promotion of science and the arts” is the issue of whether Congress may only provide for grants of protection that broaden the

availability of new materials.1516

Acting within these strictures, Congress has broad leeway to determine how best to promote creativity and utility through temporary monopolies. “It is Congress that has been assigned the task of

defining the scope of the limited monopoly that should be granted

1514 Feist 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 TradeMark Cases, 100 U.S. 82 (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.

1515 A. & P. Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950). In a

concurring opinion, Justice Douglas wrote, for himself and Justice Black: “Every patent is the grant of a privilege of exacting tolls from the public. The Framers plainly

did not want those monopolies freely granted. . . . It is not enough 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.” 340 U.S. at 154–55 (Justice Douglas concurring).

1516 Kendall v. Winsor, 62 U.S. (21 How.) 322, 328 (1859) (“[T]he inventor who

designedly, and with the view of applying it indefinitely and exclusively for his own

profit, withholds his invention from the public, comes not within the policy or objects of the Constitution or acts of Congress.”).

In Golan v. Holder, publishers and musicians challenged a law that allowed for

copyright protection of certain foreign works theretofore in the public domain, in

conformance with international practice. Plaintiffs alleged the provision was invalid

because, inter alia, it failed to give incentives for creating new works. Though this

view found support in Justice Breyer’s dissent, the majority held the Copyright Clause

does not require that every provision of copyright law be designed to encourage new

works. Rather, Congress has broad discretion to determine the intellectual property

regime that, in its judgment, best serves the overall purposes of the Clause, including broader dissemination of existing and future American works. 565 U.S. ___, No.

10–545, slip op. at 21 (2012).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

332 ART. I—LEGISLATIVE DEPARTMENT
to authors,” the Court has said.1517 “Satisfied” in Eldred v. Ashcroft

that the Copyright Term Extension Act did not violate the “limited

times” prescription, the Court saw the only remaining question to

be whether the enactment was “a rational exercise of the legislative authority conferred by the Copyright Clause.” 1518 The Act, the

Court concluded, “reflects judgments of a kind Congress typically

makes, judgments we cannot dismiss as outside the Legislature’s

domain.” 1519 Moreover, the duration of copyrights and patents may

be prolonged and, even then, the limits may not be easily enforced.

The protection period may extend well beyond the life of the author or inventor.1520 Also, in extending the duration of existing copyrights and patents, Congress may protect the rights of purchasers

and assignees.1521

The copyright and patent laws do not, of their own force, have

any extraterritorial operation.1522

1517 Eldred v. Ashcroft, 537 U.S. 186, 205 (2003) (quoting Sony Corp. of America

v. Universal City Studios, 464 U.S. 417, 429 (1984)).

1518 537 U.S. at 204.

1519 537 U.S. at 205.

1520 The Court in Eldred upheld extension of the term of existing copyrights from

life of the author plus 50 years to life of the author plus 70 years. Although the

more general issue was not raised, the Court opined that this length of time, extendable by Congress, was “clearly” not a regime of “perpetual” copyrights. The only two

dissenting Justices, Stevens and Breyer, challenged this assertion.

1521 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).

1522 Brown v. Duchesne, 60 U.S. (19 How.) 183, 195 (1857); see also Deepsouth

Packing Co. v. Laitram Corp., 406 U.S. 518, 531 (1972) (“Our patent system makes

no claim to extraterritorial effect . . . .”); Quality King Distrib., Inc. v. L’Anza Research Int’l, Inc., 523 U.S. 135, 154 (1998) (Justice Ginsburg concurring) (“Copyright protection is territorial”); Microsoft Corp. v. AT&T, 550 U.S. 437, 454–55 (2007)

(“The presumption that United States law governs domestically but does not rule

the world applies with particualr force in patent law”.). 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 of transnational protection of intellectual property 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’s conditional

implementation of the Convention through legislation. The Berne Convention Implementation Act of 1988, Pub. L. 100–568, 102 Stat. 2853, 17 U.S.C. §§ 101 and notes.

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

ART. I—LEGISLATIVE DEPARTMENT 333
Patentable Discoveries

The protection traditionally afforded by acts of Congress under

this clause has been limited to new and useful inventions,1523 and,

although a patentable invention is a mental achievement,1524 for an

idea to be patentable it must have first taken physical form.1525 Despite the fact that the Constitution uses the term “discovery” rather

than “invention,” a patent may not be issued for the discovery of a

previously 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.” 1526 In addition to refusing to allow patents for natural phenomena and laws of nature, the

Court has held that abstract ideas and mathematical formulas may

not be patented,1527 for these are the “basic tools of scientific and

technological work” 1528 that should be “free to all men and reserved to none.” 1529

As for the mental processes that traditionally must be evidenced, the Court has held that an invention must display “more

ingenuity . . . than the work of a mechanic skilled in the art;” 1530

and, though combination patents have been at times sustained,1531

the accumulation of old devices is patentable “only when the whole

in some way exceeds the sum of its parts.” 1532 Though “inventive

1523 Seymour 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).

1524 Smith v. Nichols, 89 U.S. (21 Wall.) 112, 118 (1875).

1525 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).

1526 Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948); Diamond v. Diehr,

450 U.S. 175, 187 (1981) (“[A]n application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection”.)

(emphasis in original). Cf. Dow Co. v. Halliburton Co., 324 U.S. 320 (1945); Cuno

Corp. v. Automatic Devices Corp., 314 U.S. 84, 89 (1941).

1527 Gottschalk v. Benson, 409 U.S. 63 (1972); Bilski v. Kappos, 561 U.S. ___,

No. 08–964, slip op. (2010); Mayo Collaborative Servs. v. Prometheus Laboratories,

Inc., 566 U.S. ___, No. 10–1150, slip op. (2012).

1528 Gottschalk v. Benson, 409 U.S. 63, 67 (1972).

1529 Funk Bros. Seed Co. v. Kalo Co., 333 U.S. 127, 130 (1948).

1530 Sinclair Co. v. Interchemical Corp., 325 U.S. 327, 330 (1945); Marconi Wireless Co. v. United States, 320 U.S. 1 (1943).

1531 Keystone Mfg. Co. v. Adams, 151 U.S. 139 (1894); Diamond Rubber Co. v.

Consol. Tire Co., 220 U.S. 428 (1911).

1532 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

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

earlier:

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

334 ART. I—LEGISLATIVE DEPARTMENT
genius” and slightly varying language have been appearing in judicial decisions for over a century,1533 “novelty and utility” has been

the primary statutory test since the Patent Act of 1793.1534 Section

103 of the Patent Act of 1952, however, 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.1535 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,1536 but, in Graham v. John Deere Co.,

1537 the Court interpreted the provision as having codified its earlier holding in Hotchkiss

v. Greenwood.

1538 The Court in Graham 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 ig-

“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)).”

Id. 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.

1533 “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).

1534 Act of February 21, 1793, ch. 11, 1 Stat. 318. See Graham v. John Deere

Co., 383 U.S. 1, 3–4, 10 (1966).

1535 35 U.S.C. § 103.

1536 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).

1537 383 U.S. 1 (1966).

1538 52 U.S. (11 How.) 248 (1850).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

ART. I—LEGISLATIVE DEPARTMENT 335
nored.” 1539 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 rejuvenation

of “invention” as a standard of patentability.1540

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.1541 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 patentee’s device is in truth an invention is left open to investigation under the general law.1542 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 a judicial body.1543

The primary responsibility, however, for weeding out unpatentable

devices rests in the Patent Office.1544 The present system of “de novo”

hearings before the Court of Appeals allows the applicant to pres1539 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,

146–52 (1989).

1540 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.”

1541 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 courts. The Seventh Amendment

does not require that such issues be tried to a jury.

1542 Evans v. Eaton, 16 U.S. (3 Wheat.) 454, 512 (1818).

1543 United States v. Duell, 172 U.S. 576, 586–89 (1899). See also Butterworth

v. United States ex rel. Hoe, 112 U.S. 50 (1884).

1544 Graham v. John Deere Co., 383 U.S. 1, 18 (1966).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

336 ART. I—LEGISLATIVE DEPARTMENT
ent new evidence that the Patent Office has not heard,1545 thus making somewhat amorphous the central responsibility.

Nature and Scope of the Right Secured for Copyright

The leading case on the nature of the rights that Congress is

authorized to “secure” under the Copyright and Patent Clause is

Wheaton v. Peters.

1546 Wheaton was the official reporter for the Supreme Court from 1816 to 1827, and Peters was his successor in

that role. Wheaton charged Peters with having infringed his copyright in the twelve volumes of “Wheaton’s Reports” by reprinting

material from Wheaton’s first volume in “a volume called ‘Condensed Reports of Cases in the Supreme Court of the United

States’ ”; 1547 Wheaton based his claim on both common law and a

1790 act of Congress. On the statutory claim, the Court remanded

to the trial court for a determination of whether Wheaton had complied with all the requirements of the act.1548 On the common law

claim, the Court held for Peters, finding that, under common law,

publication divests an author of copyright protection.1549 Wheaton

argued that the Constitution should be held to protect his common

law copyright, because “the word secure . . . clearly indicates an intention, not to originate a right, but to protect one already in existence.” 1550 The Court found, however, that “the word secure, as used

in the constitution, could not mean the protection of an acknowledged legal right,” but was used “in reference to a future right.” 1551

Thus, the exclusive right that the Constitution authorizes Congress to “secure” to authors and inventors owes its existence solely

to acts of Congress that secure it, from which it follows that the

rights granted by a patent or copyright are subject to such qualifications and limitations as Congress sees fit to impose. The Court’s

“reluctance to expand [copyright] protection without explicit legislative guidance” controlled its decision in Sony Corp. v. Universal City

1545 In Jennings v. Brenner, 255 F. Supp. 410, 412 (D.D.C. 1966), District Judge

Holtzoff suggested that a system of remand be adopted.

1546 33 U.S. (8 Pet.) 591 (1834).

1547 33 U.S. (8 Pet.) at 595.

1548 33 U.S. (8 Pet.) at 657–58. The Court noted that the same principle applies

to “an individual who has invented a most useful and valuable machine. . . . [I]t

has never been pretended that the latter could hold, by the common law, any property in his invention, after he shall have sold it publicly.” Id.

1549 33 U.S. (8 Pet.) at 667.

1550 33 U.S. (8 Pet.) at 661; 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.

1551 33 U.S. (8 Pet.) at 661.

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

ART. I—LEGISLATIVE DEPARTMENT 337
Studios,

1552 which 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.

Congress was within its powers in giving to authors the exclusive right to dramatize any of their works. Even as applied to pantomime 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.1553

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.1554 Because

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.1555 A patent right may, however, be subjected, by bill in equity, to payment of a judgment debt of the patentee.1556

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 that cannot be appropriated or used by the government without just compensation.1557 Congress may, however, modify rights under

an existing patent, provided vested property rights are not thereby

1552 464 U.S. 417, 431 (1984). Cf. Metro-Goldwin-Mayer Studios Inc. v. Grokster,

Ltd., 545 U.S. 913 (2005) (active encouragement of infringement by distribution of

software for sharing of copyrighted music and video files can constitute infringement).

1553 Kalem 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).

1554 Baker v. Selden, 101 U.S. 99, 105 (1880).

1555 Stevens v. Gladding, 58 U.S. (17 How.) 447 (1855).

1556 Ager v. Murray, 105 U.S. 126 (1882).

1557 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 Mfg. 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).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

338 ART. I—LEGISLATIVE DEPARTMENT
impaired,1558 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.1559 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 that are forbidden by those acts are entirely consistent in their holdings.1560

Congress has the power to pass copyright laws that, in its political judgment, will serve the ends of the Copyright Clause. Congress may “promote the Progress of Science” (i.e., the creation and

dissemination of knowledge and learning) not only by providing incentives for new works, but also by conferring copyright protection

to works in the public domain.1561 The Copyright Clause also broadly

empowers Congress to extend the terms of existing copyrights, so

long as the extended terms are for determinable periods.1562

Copyright and the First Amendment

The Copyright Clause nominally restricts free speech by allowing for an author’s monopoly to market his original work. The Court

has “recognized that some restriction on expression is the inherent

and intended effect of every grant of copyright.” 1563 However, that

the Copyright Clause and the First Amendment were adopted close

in time reflects the Framers’ belief that “copyright’s limited monopolies are compatible with free speech principles.” 1564 “[T]he Framers

intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate

ideas.” 1565

The Court has noted on several occasions that the copyright law

contains two important First Amendment safeguards: (1) limiting

1558 McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843).

1559 Bloomer v. McQuewan, 55 U.S. (14 How.) 539, 553 (1852).

1560 See 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).

1561 Golan v. Holder, 565 U.S. ___, No. 10–545, slip op. (2012).

1562 Eldred v. Ashcroft, 537 U.S. 186 (2003).

1563 Golan v. Holder, 565 U.S. ___, No. 10–545, slip op. (2012).

1564 Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).

1565 Harper & Row Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 558

(1985).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

ART. I—LEGISLATIVE DEPARTMENT 339
copyright protection to an author’s creative expression of ideas, but

prohibiting protection of ideas in and of themselves; and (2) permitting fair use of a copyrighted work in certain circumstances, including for purposes of criticism, teaching, comment, news reporting,

and parody. These traditional contours of copyright protection have

foreclosed heightened First Amendmebnt scrutiny of copyright laws.1566

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.1567 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.1568

Royalties received from patents or copyrights are subject to nondiscriminatory state income taxes, a holding to the contrary being overruled.1569

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

use 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.1570 But, in Goldstein v. California,

1571 the Court dis1566 Eldred v. Ashcroft, 537 U.S. 186 (2003); Golan v. Holder, 565 U.S. ___, No.

10–545, slip op. (2012).

1567 Patterson v. Kentucky, 97 U.S. 501 (1879).

1568 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).

1569 Fox Film Corp. v. Doyal, 286 U.S. 123 (1932), overruling Long v. Rockwood,

277 U.S. 142 (1928).

1570 Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225 (1964); Compco Corp. v.

Day-Brite Lighting, Inc., 376 U.S. 234 (1964).

1571 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 Copyright Clause, whether Congress had or had not acted. The latter case recSec. 8—Powers of Congress Cl. 8—Copyrights and Patents

340 ART. I—LEGISLATIVE DEPARTMENT
tinguished 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.” 1572 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 use 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.1573

Returning to the Sears and Compco emphasis, the Court unanimously, in Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,

1574 reasserted that “efficient operation of the federal patent system depends upon substantially free trade in publicly known, unpatented

design and utilitarian conceptions.” 1575 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.” 1576 What states

ognized 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).

1572 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’s 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, 2067. (Pub. L. 105–298 (1998),

§ 102, extended this date from February 15, 2047.)

1573 Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974). See also Aronson v.

Quick Point Pencil Co., 440 U.S. 257 (1979).

1574 489 U.S. 141 (1989).

1575 489 U.S. at 156.

1576 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 “conSec. 8—Powers of Congress Cl. 8—Copyrights and Patents

ART. I—LEGISLATIVE DEPARTMENT 341
are forbidden to do is to “offer patent-like protection to intellectual

creations which would otherwise remain unprotected as a matter

of federal law.” 1577 A state law “aimed directly at preventing the

exploitation of the [unpatented] design” is invalid as impinging on

an area of pervasive federal regulation.1578

Trade-Marks and Advertisements

In the famous Trade-Mark Cases,

1579 decided in 1879, the Supreme Court held void acts of Congress that, in apparent reliance

upon this clause, extended the protection of the law to trademarks

registered in the Patent Office. “The ordinary trade mark,” Justice

Miller wrote 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.” 1580 Not many years later, the Court, again

speaking through Justice Miller, ruled that a photograph may be

constitutionally copyrighted,1581 and still later the Court held a circus poster to be entitled to the same protection. In answer to the

objection of the circuit court that a lithograph that “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 pictorial illustrations outside the narrowest and most obvious limits.1582

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.

sumer confusion” is a permissible state goal that can be served in some instances

by application of such laws. Id. at 154.

1577 489 U.S. at 156 (emphasis added).

1578 489 U.S. at 158.

1579 100 U.S. 82 (1879).

1580 100 U.S. at 94.

1581 Burrow-Giles Lithographic Co. v. Saroney, 111 U.S. 53 (1884).

1582 Bleisten v. Donaldson Lithographing Co., 188 U.S. 239, 252 (1903).

Sec. 8—Powers of Congress Cl. 8—Copyrights and Patents

342 ART. I—LEGISLATIVE DEPARTMENT
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. . . .” 1583 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.1584 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.1585 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.” 1586 In the debate on the 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.1587

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 punishing the” was

held to be an appropriate exercise of the constitutional authority to

1583 1 J. KENT, COMMENTARIES ON AMERICAN LAW 1 (1826).

1584 19 JOURNALS OF THE CONTINENTAL CONGRESS 315, 361 (1912); 20 id. at 762; 21

id. at 1136–37, 1158.

1585 Article IX.

1586 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 168, 182 (Rev.

ed. 1937).

1587 Id. at 316.

Sec. 8—Powers of Congress Cl. 10—Maritime Crimes

ART. I—LEGISLATIVE DEPARTMENT 343
“define and punish” the offense, since it adopted by reference the

sufficiently precise definition of International Law.1588 Similarly, in

Ex parte Quirin,

1589 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.” 1590 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.1591

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 1592 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,

1588 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).

1589 317 U.S. 1 (1942).

1590 317 U.S. at 28.

1591 United States v. Arjona, 120 U.S. 479, 487, 488 (1887).

1592 United States v. Flores, 3 F. Supp. 134 (E.D. Pa. 1932).

Sec. 8—Powers of Congress Cl. 10—Maritime Crimes

344 ART. I—LEGISLATIVE DEPARTMENT
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.” 1593 Within the meaning of this section, an offense is committed on the high seas even when the vessel on which it occurs is lying at anchor on the road in the territorial waters of another country.1594

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.

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,

1595 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.1596 Chief Justice Marshall

appears to have taken a still different view, namely that the power

1593 United States v. Flores, 289 U.S. 137, 149–50 (1933).

1594 United States v. Furlong, 18 U.S. (5 Wheat.) 184, 200 (1820).

1595 THE FEDERALIST, No. 23 (J. Cooke ed. 1937), 146–51.

1596 Penhallow v. Doane, 3 U.S. (3 Dall.) 53 (1795).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 345
to wage war is implied from the power to declare it. In McCulloch

v. Maryland,

1597 he listed the power “to declare and conduct a war” 1598

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.” 1599 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1600 the Court referred to “the war

power” as a single unified power.1601

An Inherent Power.—Thereafter, we find the phrase, “the war

power,” being used by both Chief Justice White 1602 and Chief Justice Hughes,1603 the former declaring the power to be “complete and

undivided.” 1604 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.,

1605 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 powers 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 Con1597 17 U.S. (4 Wheat.) 316 (1819).

1598 17 U.S. at 407. (emphasis supplied).

1599 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).

1600 CONG. GLOBE, 37th Congress, 1st Sess., App. 1 (1861).

1601 Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 86 (1875).

1602 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).

1603 Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934).

1604 Northern Pac. Ry. v. North Dakota ex rel. Langer, 250 U.S. 135, 149 (1919).

1605 299 U.S. 304 (1936).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

346 ART. I—LEGISLATIVE DEPARTMENT
stitution, would have vested in the Federal Government as necessary concomitants of nationality.” 1606

A Complexus of Granted Powers.—In Lichter v. United

States,

1607 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.” 1608 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 the Congress and the President with powers to meet the varied demands

of war. . . .” 1609

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.” 1610 Although there were solitary suggestions that the power

should better be vested in the President alone,1611 in the Senate

alone,1612 or in the President and the Senate,1613 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 con1606 299 U.S. at 316, 318. On the controversy respecting Curtiss-Wright, see The

Curtiss-Wright Case, infra.

1607 334 U.S. 742 (1948).

1608 334 U.S. at 757–58.

1609 334 U.S. at 755 n.3.

1610 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 313 (rev. ed.

1937).

1611 Mr. 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.

1612 Mr. 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.

1613 Hamilton’s plan provided that the President was “to make war or peace,

with the advice of the senate . . . .” 1 id. at 300.

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 347
currence of the President and both Houses of Congress.1614 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; 1615 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.1616

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to

“declare war.” 1617 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 1618 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1619

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

1614 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). See also id. at No. 26, 164–171. Cf. C. BERDAHL, WAR

POWERS OF THE EXECUTIVE IN THE UNITED STATES ch. V (1921).

1615 THE 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).

1616 The Articles of Confederation vested powers with regard to foreign relations in the Congress.

1617 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 318–319 (rev.

ed. 1937).

1618 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.

1619 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).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

348 ART. I—LEGISLATIVE DEPARTMENT
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.1620 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.1621 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 . . . .” 1622 But no formal declaration of war was passed,

Congress apparently accepting Hamilton’s view.1623

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.1624 Congress had subsequently

ratified Lincoln’s action,1625 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.” 1626 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

1620 MESSAGES AND PAPERS OF THE PRESIDENTS 326, 327 (J. Richardson ed., 1896).

1621 7 WORKS OF ALEXANDER HAMILTON 746–747 (J. Hamilton ed., 1851).

1622 2 Stat. 129, 130 (1802) (emphasis supplied).

1623 Of 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).

1624 Prize Cases, 67 U.S. (2 Bl.) 635 (1863).

1625 12 Stat. 326 (1861).

1626 Prize Cases, 67 U.S. (2 Bl.) 635, 669 (1863).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 349
an insurrection with the character of war and thereby authorize the

legal consequences ensuing from a state of war.1627

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.” 1628

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 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.1629 The Supreme Court studiously refused to consider the issue in any of the forms in which

it was presented,1630 and the lower courts generally refused, on “political question” grounds, to adjudicate the matter.1631 In the absence of judicial elucidation, the Congress and the President have

1627 67 U.S. at 682.

1628 The Protector, 79 U.S. (12 Wall.) 700, 702 (1872).

1629 The 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, Pub. 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. Pub. L. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548.

1630 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.

1631 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 (D.C. Cir. 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

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

350 ART. I—LEGISLATIVE DEPARTMENT
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.1632

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 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.1633 Aware historically that these powers had been used 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.1634

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 limF.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), aff’d, 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), aff’d. 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).

1632 For further discussion, see section on President’s commander-in-chief powers.

1633 W. BLACKSTONE, COMMENTARIES 263 (St. G. Tucker ed., 1803).

1634 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1187 (1833).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 351
ited 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. . . .” 1635 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.” 1636

Conscription

The constitutions adopted during the Revolutionary War by at

least nine of the States sanctioned compulsory military service.1637

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 enacted.1638 In 1863, a compulsory draft law was adopted and put into

operation without being challenged in the federal courts.1639 Not so

the Selective Service Act of 1917.1640 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.1641

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 fol1635 25 Ops. Atty. Gen. 105, 108 (1904).

1636 40 Ops. Atty. Gen. 555 (1948).

1637 Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox v. Wood, 247 U.S.

3 (1918).

1638 245 U.S. at 385.

1639 245 U.S. at 386–88. The measure was upheld by a state court. Kneedler v.

Lane, 45 Pa. St. 238 (1863).

1640 Act of May 18, 1917, 40 Stat. 76.

1641 Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

352 ART. I—LEGISLATIVE DEPARTMENT
lowing 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.” 1642 Accordingly, in the Selective Draft Law Cases,

1643

it dismissed the objection under that amendment as a contention

that was “refuted by its mere statement.” 1644

Although the Supreme Court has so far formally declined to pass

on the question of the “peacetime” draft,1645 its opinions leave no

doubt of the constitutional validity of the act. In United States v.

O’Brien,

1646 upholding a statute prohibiting the destruction of selective service registration certificates, the Court, speaking through Chief

Justice Warren, thought “[t]he power of Congress to classify and

conscript manpower for military service is ‘beyond question.’ ” 1647

In noting Congress’s “broad constitutional power” to raise and regulate armies and navies,1648 the Court has specifically observed that

the conscription act was passed “pursuant to” the grant of authority to Congress in clauses 12–14.1649

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 [mili1642 Butler v. Perry, 240 U.S. 328, 333 (1916) (upholding state law requiring ablebodied men to work on the roads).

1643 245 U.S. 366 (1918).

1644 245 U.S. at 390.

1645 Universal Military Training and Service Act of 1948, 62 Stat. 604, as amended,

50 U.S.C. App. §§ 451–473. Actual conscription was precluded as of July 1, 1973,

Pub. L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), and registration was discontinued on March 29, 1975. Pres. Proc. No. 4360, 3 C.F.R. 462 (1971–1975 Compilation), 50 U.S.C. App. § 453 note. Registration, but not conscription, was reactivated

in the wake of the invasion of Afghanistan. Pub. L. 96–282, 94 Stat. 552 (1980).

1646 391 U.S. 367 (1968).

1647 391 U.S. at 377, quoting Lichter v. United States, 334 U.S. 742, 756 (1948).

1648 Schlesinger v. Ballard, 419 U.S. 498, 510 (1975).

1649 Rostker v. Goldberg, 453 U.S. 57, 59 (1981). See id. at 64–65. See also 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).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 353
tary society] shall be governed than it is when prescribing rules for

[civilian society].” 1650 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1651

the Court nonetheless operates with “a healthy deference to legislative and executive judgments” about military affairs,1652 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.” 1653

In reliance upon this deference to congressional judgment about

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 for registration of males only for possible

future conscription.1654 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.1655 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.1656 And the

statements of a military officer urging disobedience to certain or1650 Parker v. Levy, 417 U.S. 733, 743–52 (1974). See also Orloff v. Willoughby,

345 U.S. 83, 93–94 (1953); Schlesinger v. Councilman, 420 U.S. 738, 746–48 (1975);

Greer v. Spock, 424 U.S. 828, 837–38 (1976); Middendorf v. Henry, 425 U.S. 25, 45–46

(1976); Brown v. Glines, 444 U.S. 348, 353–58 (1980); Rostker v. Goldberg, 453 U.S.

57, 64–68 (1981).

1651 Rostker v. Goldberg, 453 U.S. 57, 67 (1981).

1652 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).

1653 Parker 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).

1654 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).

1655 Greer v. Spock, 424 U.S. 828 (1976), limiting Flower v. United States, 407

U.S. 197 (1972).

1656 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 the right of members of the armed forces to communicate with a Member of

Congress, but which the Court interpreted narrowly.

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

354 ART. I—LEGISLATIVE DEPARTMENT
ders could be punished under provisions that would have been of

questionable validity in a civilian context.1657 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.1658

Congress has a plenary and exclusive power to determine the

age at which a soldier or seaman shall serve, 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 his mother

was not binding on the government.1659 Because 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.1660

Likewise, Congress may bar a state from taxing the tangible, personal property of a soldier, assigned for duty in the state, but domiciled elsewhere.1661 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.1662

1657 Parker v. Levy, 417 U.S. 733 (1974).

1658 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 action for damages). These considerations are also the basis of the Court’s construction of the Federal Tort Claims Act as not reaching injuries arising incident to military service. 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.

1659 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).

1660 Wissner 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).

1661 Dameron 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).

1662 McKinley v. United States, 249 U.S. 397 (1919).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 355
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.1663 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,1664 the matter never was raised in substantial degree until the Cold War period when the United States found 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,

1665 the Court held that court-martial jurisdiction was lacking to try servicemen charged with a crime that was

not “service connected.” The Court did not define “service connection,” but among the factors it found relevant 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.1666

O’Callahan was overruled in Solorio v. United States,

1667 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.” 1668

Chief Justice Rehnquist’s opinion for the Court insisted that

O’Callahan had been based on erroneous readings of English and

1663 The 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).

1664 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 CourtMartial Jurisdiction, 13 VAND. L. REV. 435 (1960).

1665 395 U.S. 258 (1969).

1666 395 U.S. at 273–74. See also Relford v. Commandant, 401 U.S. 355 (1971);

Gosa v. Mayden, 413 U.S. 665 (1973).

1667 483 U.S. 435 (1987).

1668 483 U.S. at 450–51.

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

356 ART. I—LEGISLATIVE DEPARTMENT
American history, and that “the service connection approach . . . has

proved confusing and difficult for military courts to apply.” 1669

It is not clear what provisions of the Bill of Rights and other

constitutional guarantees apply to court-martial trials. 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.1670 The double jeopardy provision of the Fifth Amendment

appears to apply.1671 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.1672 The Uniform Code of Military Justice, supplemented by the Manual for CourtsMartial, affirmatively grants due process rights roughly comparable

to civilian procedures, so it is unlikely that many issues necessitating constitutional will arise.1673 However, the Code leaves intact much

of the criticized traditional structure of courts-martial, including the

pervasive possibilities of command influence,1674 and the Court of

Military Appeals is limited on the scope of its review,1675 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.1676 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,

1669 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.

1670 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 123, 138–39 (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).

1671 See Wade v. Hunter, 336 U.S. 684 (1949). Cf. Grafton v. United States, 206

U.S. 333 (1907).

1672 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).

1673 The UCMJ guarantees counsel, protection from self-incrimination and double

jeopardy, and warnings of rights prior to interrogation, to name a few.

1674 Cf. O’Callahan v. Parker, 395 U.S. 258, 263–64 (1969).

1675 10 U.S.C. § 867.

1676 Parker 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.”

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ART. I—LEGISLATIVE DEPARTMENT 357
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.1677 Nor did

application of the Articles to conduct essentially composed of speech

necessitate a voiding of the conviction, as the speech was unprotected, and, even though it might reach protected speech, the officer here was unable to raise that issue.1678

Military courts are not Article III courts, but are agencies established pursuant to Article I.1679 In the 19th century, the Court established that the civil courts have no power to interfere with courtsmartial and that court-martial decisions are not subject to civil court

review.1680 Until August 1, 1984, the Supreme Court had no jurisdiction to review by writ of certiorari the proceedings of a military

commission, but as of that date Congress conferred appellate jurisdiction of decisions of the Court of Military Appeals.1681 Prior to that

time, civil court review of court-martial decisions was possible through

habeas corpus jurisdiction,1682 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.1683 In Burns v. Wilson,

1684 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 fed1677 417 U.S. at 756.

1678 417 U.S. at 757–61.

1679 Kurtz 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.

1680 Dynes v. Hoover, 61 U.S. (20 How.) 65 (1857).

1681 Military Justice Act of 1983, Pub. L. 98–209, 97 Stat. 1393, 28 U.S.C. § 1259.

1682 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).

1683 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).

1684 346 U.S. 137 (1953).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

358 ART. I—LEGISLATIVE DEPARTMENT
eral court in such litigation 1685 and the lower federal courts have

divided several possible ways.1686

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.1687 After first leaning the other

way,1688 the Court on rehearing found court-martial jurisdiction lacking, at least in peacetime, to try civilian dependents of service personnel for capital crimes committed outside the United States.1689

Subsequently, the Court extended its ruling to civilian dependents

overseas charged with noncapital crimes 1690 and to civilian employees of the military charged with either capital or noncapital crimes.1691

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 constitu1685 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).

1686 E.g., Calley v. Callaway, 519 F.2d 184 (5th Cir., 1975) (en banc), cert. denied, 425 U.S. 911 (1976).

1687 United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955). See also Lee v.

Madigan, 358 U.S. 228 (1959).

1688 Kinsella v. Krueger, 351 U.S. 470 (1956); Reid v. Covert, 351 U.S. 487 (1956).

1689 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’s power

under clause 14 could not reach civilians. Justices Frankfurter and Harlan concurred, limited to capital cases. Justices Clark and Burton dissented.

1690 Kinsella v. United States, 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 noncapital crimes.

Justices Harlan and Frankfurter dissented on the ground that in capital cases greater

constitutional protection, available in civil courts, was required.

1691 Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. United States ex rel.

Guagliardo, 361 U.S. 281 (1960).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 359
tional barriers to the impulse of self-preservation.” 1692 Authoritative judicial recognition of the power is found in Ashwander v. TVA,

1693

upholding the power of the Federal Government to construct and

operate a dam and power plant, pursuant to the National Defense

Act of June 3, 1916.1694 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.1695

Perhaps the most significant example of legislation adopted pursuant to the war powers when no actual “shooting war” was in progress 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.1696 Congress has also authorized a vast amount of highway construction, pursuant to its conception of their “primary importance to the national defense,” 1697

and the first extensive program of federal financial assistance in

the field of education was the National Defense Education Act.1698

These measures, of course, might also be upheld under the power

to spend for the “common defense.” 1699 The post-World 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,1700 authorization of extensive space exploration,1701

authorization for wage and price controls,1702 and continued extension of the Renegotiation Act to recapture excess profits on defense

1692 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1180 (1833).

1693 297 U.S. 288 (1936).

1694 39 Stat. 166 (1916).

1695 297 U.S. at 327–28.

1696 60 Stat. 755 (1946), 42 U.S.C. §§ 1801 et seq.

1697 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.”

1698 72 Stat. 1580 (1958), as amended, codified to various sections of Titles 20

and 42.

1699 Article I, § 8, cl.1.

1700 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,

Pub. L. 92–129, 85 Stat. 353, 50 U.S.C. App. § 467(c), although registration for possible conscription is in effect. Pub. L. 96–282, 94 Stat. 552 (1980).

1701 National Aeronautics and Space Act of 1958, 72 Stat. 426, as amended, codified in various sections of Titles 5, 18, and 50.

1702 Title 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.

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

360 ART. I—LEGISLATIVE DEPARTMENT
contracts.1703 Additionally, the period saw extensive regulation of matter affecting individual rights, such as loyalty-security programs,1704 passport controls,1705 and limitations on members of the

Communist Party and associated organizations,1706 all of which are

dealt with in other sections.

Other legislation is 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.” 1707 This principle was given a

much broader application after the First World War in Hamilton v.

Kentucky Distilleries, Co.,

1708 where the War Time Prohibition Act 1709

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.1710 But in 1924, it held that a rent control law for the

District of Columbia, which had been previously upheld,1711 had ceased

to operate because the emergency which justified it had come to an

end.1712

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, 1946.1713 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

1703 Renegotiation Act of 1951, 65 Stat. 7, as amended, 50 U.S.C. App. §§ 1211

et seq.

1704 E.g., Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961); Peters v. Hobby, 349 U.S. 331 (1955).

1705 Zemel v. Rusk, 381 U.S. 1 (1965); United States v. Laub, 385 U.S. 475 (1967).

1706 United States v. Robel, 389 U.S. 258 (1967); United States v. Brown, 381

U.S. 437 (1965).

1707 Stewart v. Kahn, 78 U.S. (11 Wall.) 493, 507 (1871) (upholding a federal

statute that tolled the limitations period for state causes of action for the period

during which the Civil War prevented the bringing of an action). See also Mayfield

v. Richards, 115 U.S. 137 (1885).

1708 251 U.S. 146 (1919). See also Ruppert v. Caffey, 251 U.S. 264 (1920).

1709 Act of November 21, 1918, 40 Stat. 1046.

1710 251 U.S. at 163.

1711 Block v. Hirsh, 256 U.S. 135 (1921).

1712 Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924).

1713 Woods v. Cloyd W. Miller Co., 333 U.S. 138 (1948). See also Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 361
obliterate the Ninth and Tenth Amendments as well. There are no

such implications in today’s decision.” 1714

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.1715 “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.” 1716

Delegation of Legislative Power in Wartime

During wartime, Congress has been prone to delegate more powers to the President than at other times.1717 The Court, however,

has insisted that, “[i]n peace or war it is essential that the Constitution be scrupulously obeyed, and particularly that as in times of

peace the respective branches of the government keep within the

power assigned to each by the Constitution. On the other hand, . . .

[i]n time of crisis nothing could be more tragic and less expressive

of the intent of the people than so to construe their Constitution

that by its own terms it would substantially hinder rather than help

them in defending its national safety.” 1718 Few cases, however, actually discuss when a wartime delegation of legislative power might

be excessive.1719 Two theories have been advanced at times when

the delegation doctrine carried more force than it has in recent years.

First, has been suggested that, because 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. But this view overlooks the fact that the Constitution expressly vests the war power as a legislative power in

1714 333 U.S. at 143–44.

1715 Ludecke v. Watkins, 335 U.S. 160 (1948).

1716 335 U.S. at 170.

1717 For 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).

1718 Lichter v. United States, 334 U.S. 742, 779–80 (1948).

1719 In the Selective Draft Law Cases, 245 U.S. 366, 389 (1918), a “contention

that an act [was] void as a delegation of federal power to state officials” was dismissed as “too wanting in merit to require further notice.” Likewise, “the contention

that . . . vesting administrative officers with legislative discretion [is unconstitutional] has been so completely adversely settled as to require reference only to some

of the decided cases.” Id. (citing three cases). A wartime delegation was upheld by

reference to peacetime precedents in Yakus v. United States, 321 U.S. 414, 424 (1944).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

362 ART. I—LEGISLATIVE DEPARTMENT
Congress. Second, it has been suggested that Congress’s power to

delegate in wartime is as 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,

1720 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. . . .” 1721

Both theories found expression in different passages of Chief Justice Stone’s opinion in Hirabayashi v. United States,

1722 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,1723 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.1724

A similar ambiguity is found in Lichter v. United States,

1725 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 methods 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 equally in war

and in peace, they must be read with the realistic purposes of the

entire instrument fully in mind.” 1726 The Court then examined the

exigencies of war and concluded that the delegation was valid.1727

1720 88 U.S. (21 Wall.) 73 (1875).

1721 88 U.S. at 96–97. Cf. United States v. Chemical Foundation, 272 U.S. 1 (1926).

1722 320 U.S. 81 (1943).

1723 320 U.S. at 91–92, 104.

1724 320 U.S. at 104.

1725 334 U.S. 742 (1948).

1726 334 U.S. at 778–79, 782.

1727 334 U.S. at 778–83.

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ART. I—LEGISLATIVE DEPARTMENT 363
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,

1728

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, and in which there were no hostilities,

does not qualify.1729 The minority argued that the question was for

Congress’s determination.1730 The entire Court rejected the Government’s contention that the President’s determination was conclusive in the absence of restraining legislation.1731

Similarly, in Duncan v. Kahanamoku,

1732 the Court declared that

the authority granted by Congress to the territorial governor of Hawaii to declare martial 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 President.1733

“What is the law which governs an army invading an enemy’s country?” the Court asked in Dow v. Johnson.

1734 “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

1728 71 U.S. (4 Wall.) 2 (1866).

1729 71 U.S. at 127.

1730 71 U.S. at 132, 138.

1731 71 U.S. at 121, 139–42.

1732 327 U.S. 304 (1946).

1733 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).

1734 100 U.S. 158, 170 (1880).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

364 ART. I—LEGISLATIVE DEPARTMENT
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 also from the Court’s doctrine that the Constitution is not

automatically applicable in all territories acquired by the United

States. The question turns upon whether Congress has made the

area “incorporated” or “unincorporated” territory.1735 In Reid v. Covert,

1736 however, Justice Black asserted in a plurality opinion 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.” 1737 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.1738

Enemy Property.—In Brown v. United States,

1739 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 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 his reach, whether within his territory or outside

it, impairs his ability to resist the confiscating government and at

1735 De 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).

1736 354 U.S. 1 (1957).

1737 354 U.S. at 6, 7.

1738 For 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).

1739 12 U.S. (8 Cr.) 110 (1814). See also Conrad v. Waples, 96 U.S. 279 (1878).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 365
the same furnishes to that government means for carrying on the

war.1740

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.1741 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.1742 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.1743

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;

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.” 1744

1740 Miller v. United States, 78 U.S. (11 Wall.) 268 (1871); Steehr v. Wallace,

255 U.S. 239 (1921); Central Union 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).

1741 The Siren, 80 U.S. (13 Wall.) 389 (1871).

1742 The Hampton, 72 U.S. (5 Wall.) 372, 376 (1867).

1743 The Paquete Habana, 175 U.S. 677, 700, 711 (1900).

1744 Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120–21 (1866).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

366 ART. I—LEGISLATIVE DEPARTMENT
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. The Court held 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.1745 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,1746 in which it nonetheless affirmed conviction for violations of the Espionage Act of 1917.1747 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.1748 Justice Holmes matterof-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.” 1749

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 these persons by a curfew order 1750 and even exclude them

from defined areas by regulation,1751 but that a citizen of Japanese

1745 “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.” 71 U.S. (4 Wall.) at 109 (emphasis by Court).

1746 Schenck 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).

1747 40 Stat. 217 (1917), as amended by 40 Stat. 553 (1918).

1748 Gilbert v. Minnesota, 254 U.S. 325 (1920).

1749 Schenck v. United States, 249 U.S. 47, 52 (1919).

1750 Hirabayashi v. United States, 320 U.S. 81 (1943).

1751 Korematsu v. United States, 323 U.S. 214 (1944). The five-Justice majority

opinion in Korematsuwas careful to state that it was ruling on exclusion only, and

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 367
ancestry whose loyalty was conceded could not continue to be detained in a relocation camp.1752

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,1753 and then in a series of cases was practically vitiated.1754 Against a contention that Congress’s war powers had been

used to achieve the result, the Court struck down for the second

time in history a congressional statute as an infringement of the

First Amendment.1755 It voided a law making it illegal for any member of a “communist-action organization” to work in a defense facility.1756 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.1757

On the other hand, in New York Times Co. v. United States,

1758

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.1759

not on compelled reporting to and remaining in an assembly center or relocation

camp, which were the highly likely consequences of obeying the exclusion order under the regulation. 323 U.S. at 222–23.

1752 Ex parte Endo, 323 U.S. 283 (1944). The Endo Court expressly avoided a

direct constitutional ruling, holding instead that continued detention could not be

supported by the statute and executive orders that underlay the detention program.

323 U.S. at 297–300.

1753 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).

1754 E.g., Yates v. United States, 354 U.S. 298 (1957); Albertson v. Subversive

Activities Control Bd., 382 U.S. 70 (1965); United States v. Brown, 381 U.S. 437

(1965).

1755 United States v. Robel, 389 U.S. 258 (1967); cf. Aptheker v. Secretary of State,

378 U.S. 500 (1964). See also Schneider v. Smith, 390 U.S. 17 (1968).

1756 Section 5(a)(1)(D) of the Subversive Control Act of 1950, 64 Stat 992, 50

U.S.C. § 784(a)(1)(D).

1757 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.

1758 403 U.S. 713 (1971).

1759 The 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.

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368 ART. I—LEGISLATIVE DEPARTMENT
Enemy Aliens.—The Alien Enemy Act of 1798 authorized the

President to deport any alien or to license him to reside within the

United States at any place to be designated by the President.1760

Though critical of the measure, many persons conceded its constitutionality on the theory that Congress’s 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.1761 A similar statute was enacted during World War I 1762 and

was held valid in Ludecke v. Watkins.

1763

During World War II, in Ex parte Quirin, the Court unanimously upheld the power of the President to order to trial before a

military tribunal German saboteurs captured within the United

States.1764 Chief Justice Stone found that enemy combatants, 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. Because this use of military tribunals was

sanctioned by Congress, the Court has found it unnecessary to decide whether “the President may constitutionally convene military

commissions ‘without the sanction of Congress’s in cases of ‘controlling necessity.’ ” 1765

Eminent Domain.—An oft-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.1766 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 Railroad,

1767 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 prop1760 1 Stat. 577 (1798).

1761 6 WRITINGS OF JAMES MADISON 360–361 (G. Hunt ed., 1904).

1762 40 Stat. 531 (1918), 50 U.S.C. § 21.

1763 335 U.S. 160 (1948).

1764 317 U.S. 1 (1942).

1765 Hamdan v. Rumsfeld, 548 U.S. 557, 592 (2006). But see, id. at 591 (“Exigency alone, of course, will not justify the establishment and use of penal tribunals

not contemplated by Article I, § 8, and Article III, § 1, of the Constitution unless

some other part of that document authorizes a response to the felt need.”).

1766 Mitchell v. Harmony, 54 U.S. (13 How.) 115, 134 (1852).

1767 120 U.S. 227 (1887).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

ART. I—LEGISLATIVE DEPARTMENT 369
erty under such circumstances by the military authorities may not

be within the terms of the constitutional clauses.” 1768

Meanwhile, 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

the latter class of cases.1769 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.1770 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 Railroad as justification for the

conclusion that owners thereof are not entitled to compensation.1771

Rent and Price Controls.—Even at a time when the Court

was using 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.1772 Justice Holmes for the majority conceded

in effect that in the absence of a war emergency the legislation might

transcend constitutional limitations,1773 but noted that “a public exigency will justify the legislature in restricting property rights in

land to a certain extent without compensation.” 1774

During World War II and thereafter, economic controls were uniformly sustained.1775 An apartment house owner who complained

1768 120 U.S. at 239.

1769 H.R. REP. NO. 262, 43d Cong., 1st Sess. (1874), 39–40.

1770 United States v. Commodities Trading Corp., 339 U.S. 121 (1950); United

States v. Toronto Navigation 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).

1771 United States v. Caltex, Inc., 344 U.S. 149, 154 (1952). Justices Douglas

and Black dissented.

1772 Block v. Hirsh, 256 U.S. 135 (1921).

1773 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.

1774 Block v. Hirsh, 256 U.S. 135, 156 (1921).

1775 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).

Sec. 8—Powers of Congress Cls. 11, 12, 13, and 14—War; Military Establishment

370 ART. I—LEGISLATIVE DEPARTMENT
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.” 1776

The Court also held that rental ceilings could be established without a prior hearing when the exigencies of national security precluded the delay which would ensue.1777

But, in another World War I case, the Court struck down a statute that penalized the making of “any unjust or unreasonable rate

or charge in handling . . . any necessaries” 1778 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.1779

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.1780 The Federal Government may call out the

militia in case of civil war; its authority to suppress rebellion is

1776 Bowles v. Willingham, 321 U.S. 503, 519 (1944).

1777 321 U.S. at 521. The Court stressed, however, that Congress had provided

for judicial review after the regulations and orders were made effective.

1778 Act of October 22, 1919, 2, 41 Stat. 297.

1779 United States v. L. Cohen Grocery Co., 255 U.S. 81 (1921).

1780 Moore v. Houston, 3 S. & R. (Pa.) 169 (1817), aff’d, Houston v. Moore, 18

U.S. (5 Wheat.) 1 (1820).

Sec. 8—Powers of Congress Cls. 15 and 16—The Militia

ART. I—LEGISLATIVE DEPARTMENT 371
found in the power to suppress insurrection and to carry on war.1781

The act of February 28, 1795,1782 which delegated to the President

the power to call out the militia, was held constitutional.1783 A militiaman who refused to obey such a call was not “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 1795.1784

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. . . .” 1785 Under the National Defense Act of 1916,1786 the militia, which 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 Na1781 Texas v. White, 74 U.S. (7 Wall.) 700 (1869); Tyler v. Defrees, 78 U.S. (11

Wall.) 331 (1871).

1782 1 Stat. 424 (1795), 10 U.S.C. § 332.

1783 Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32 (1827).

1784 Houston v. Moore, 18 U.S. (5 Wheat.) 1 (1820); Martin v. Mott, 25 U.S. (12

Wheat.) 19 (1827).

1785 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).

1786 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).

Sec. 8—Powers of Congress Cls. 15 and 16—The Militia

372 ART. I—LEGISLATIVE DEPARTMENT
tional Guard and National Guard Reserve,” who thereupon should

“stand discharged from the militia.” 1787

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 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.1788

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.1789

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 in1787 Military and civilian personnel of the National Guard are state, rather than

federal, employees and the Federal Government is thus not liable under the Federal Tort Claims Act for their negligence. Maryland v. United States, 381 U.S. 41

(1965).

1788 Perpich v. Department of Defense, 496 U.S. 434 (1990).

1789 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).

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property

ART. I—LEGISLATIVE DEPARTMENT 373
sulted 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 imputation of awe

or influence, equally dishonorable to the government and dissatisfactory to the other members of the confederacy.” 1790

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.1791 Maryland and Virginia

both authorized the cession of territory 1792 and Congress accepted.1793 Congress divided the District into two counties, Washington and Alexandria, and provided that the local laws of the two states

should continue in effect.1794 It also established a circuit court and

provided for the appointment of judicial and law enforcement officials.1795

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.1796 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. . . .” 1797 Although there was some dispute about the consti1790 THE 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).

1791 W. TINDALL, THE ORIGIN AND GOVERNMENT OF THE DISTRICT OF COLUMBIA 5–30 (1903).

1792 Maryland Laws 1798, ch. 2, p. 46; 13 Laws of Virginia 43 (Hening 1789).

1793 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).

1794 Act of February 27, 1801, 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).

1795 Act of March 3, 1801, 2 Stat. 115.

1796 The 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).

1797 THE FEDERALIST, No. 43 (J. Cooke ed. 1961), 289.

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property

374 ART. I—LEGISLATIVE DEPARTMENT
tutional propriety of permitting local residents a measure of “home

rule,” to use the recent term,1798 almost from the first there 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 1799

and replaced with a presidentially appointed Commission in 1878.1800

The Commission lasted until 1967 when it was replaced by an appointed Mayor-Commissioner and an appointed city council.1801 In

recent years, Congress provided for a limited form of selfgovernment in the District, with the major offices filled by election.1802 District residents vote for President and Vice President 1803 and elect a nonvoting delegate to Congress.1804 An effort

by constitutional amendment to confer voting representation in the

House and Senate failed of ratification.1805

Constitutionally, it appears that Congress is neither required

to provide for a locally elected government 1806 nor precluded from

delegating its powers over the District to an elective local government.1807 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.1808

1798 Such a contention was cited and rebutted in 3 J. STORY, COMMENTARIES ON THE

CONSTITUTION OF THE UNITED STATES 1218 (1833).

1799 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).

1800 Act of June 11, 1878, 20 Stat. 103.

1801 Reorganization Plan No. 3 of 1967, 32 Fed. Reg. 11699, reprinted as appendix to District of Columbia Code, Title I.

1802 District of Columbia Self-Government and Governmental Reorganization Act,

Pub. L. 93–198, 87 Stat. 774.

1803 Twenty-third Amendment.

1804 Pub. L. 91–405, 84 Stat. 848, D.C. Code, § 1–291.

1805 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 of

the proposal after seven years.

1806 Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820); Heald v. District of

Columbia, 259 U.S. 114 (1922).

1807 District 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.

1808 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).

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property

ART. I—LEGISLATIVE DEPARTMENT 375
Chief Justice Marshall for the Court held in Hepburn v. Ellzey 1809

that the District of Columbia was not a state within the meaning

of the diversity jurisdiction clause of Article III. This view, adhered

to for nearly a century and a half,1810 was overturned in 1949, the

Court 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.1811 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.1812 Two others thought that

Hepburn v. Ellzey had been erroneously decided and would have

overruled it.1813 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 1814 and

of presentment by a grand jury.1815 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.1816

Congress possesses over the District of Columbia the blended

powers of a local and national legislature.1817 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 un1809 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).

1810 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).

1811 National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).

1812 337 U.S. at 588–600 (Justices Jackson, Black and Burton).

1813 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.

1814 Callan v. Wilson, 127 U.S. 540 (1888); Capital Traction Co. v. Hof, 174 U.S.

1 (1899).

1815 United States v. Moreland, 258 U.S. 433 (1922).

1816 Wright 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).

1817 Kendall 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).

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property

376 ART. I—LEGISLATIVE DEPARTMENT
der clause 17 and need not create courts that comply with Article

III court requirements.1818 And when legislating for the District Congress remains the legislature of the Union, so that it may give its

enactments nationwide operation to the extent necessary to make

them locally effective.1819

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.1820 It includes post offices,1821 a hospital and a hotel located

in a national park,1822 and locks and dams for the improvement of

navigation.1823 But it does not cover lands acquired for forests, parks,

ranges, wild life sanctuaries or flood control.1824 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 17.1825

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.1826 Private property located thereon is not subject to taxation by the state,1827 nor

can state statutes enacted subsequent to the transfer have any op1818 In the District of Columbia Court Reform and Criminal Procedure Act of

1970, Pub. 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

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 Elec. Co., 261 U.S. 428 (1923);

Embry v. Palmer, 107 U.S. 3 (1883).

1819 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 428 (1821).

1820 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).

1821 Battle v. United States, 209 U.S. 36 (1908).

1822 Arlington Hotel v. Fant, 278 U.S. 439 (1929).

1823 James v. Dravo Contracting Co., 302 U.S. 134, 143 (1937).

1824 Collins v. Yosemite Park Co., 304 U.S. 518, 530 (1938).

1825 304 U.S. at 528.

1826 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).

1827 Surplus Trading Co. v. Cook, 281 U.S. 647 (1930).

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property

ART. I—LEGISLATIVE DEPARTMENT 377
eration therein.1828 But the local laws in force at the date of cession that are protective of private rights continue in force until abrogated by Congress.1829 Moreover, as long as there is no interference

with the exclusive jurisdiction of the United States, an area subject to such jurisdiction may be annexed by a municipality.1830

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.1831 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.1832

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.1833 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.1834

The question arose whether the United States retains jurisdiction over a place that was ceded to it unconditionally, after it has

abandoned the use of the property for governmental purposes and

entered into a contract for sale to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in

1828 Western 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, 296–97 (1958).

1829 Chicago, R.I. & P. Ry. v. McGlinn, 114 U.S. 542, 545 (1885); Stewart & Co.

v. Sadrakula, 309 U.S. 94 (1940).

1830 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).

1831 Palmer v. Barrett, 162 U.S. 399 (1896).

1832 United States v. Unzeuta, 281 U.S. 138 (1930).

1833 Benson v. United States, 146 U.S. 325, 331 (1892).

1834 Palmer v. Barrett, 162 U.S. 399 (1896).

Sec. 8—Powers of Congress Cl. 17—District of Columbia; Federal Property

378 ART. I—LEGISLATIVE DEPARTMENT
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.” 1835 In separate concurring opinions, Chief Justice Stone and Justice Frankfurter reserved judgment on the question of territorial jurisdiction.1836

Reservation of Jurisdiction by States

For more than a century the Supreme Court kept alive, by repeated dicta,1837 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.” 1838 But when the issue was squarely

presented in 1937, the Court ruled that, when 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.” 1839 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.1840

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.

1835 S.R.A., Inc. v. Minnesota, 327 U.S. 558, 564 (1946).

1836 327 U.S. at 570, 571.

1837 Fort 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).

1838 United States v. Cornell, 25 Fed. Cas. 646, 649 (No. 14,867) (C.C.D.R.I. 1819).

1839 James v. Dravo Contracting Co., 302 U.S. 134, 145 (1937).

1840 Mason Co. v. Tax Comm’n, 302 U.S. 186 (1937). See also Atkinson v. Tax

Comm’n, 303 U.S. 20 (1938).

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause

ART. I—LEGISLATIVE DEPARTMENT 379
NECESSARY AND PROPER CLAUSE

Scope and Operation

The Necessary and Proper Clause, sometimes called the “coefficient” or “elastic” clause, is an enlargement, not a constriction, of

the powers expressly granted to Congress. Chief Justice Marshall’s

classic opinion in McCulloch v. Maryland 1841 set the standard in

words that reverberate to this day. “Let the end be legitimate,” he

wrote, “let it be within the scope of the Constitution, and all means

which are appropriate, which are plainly adapted to that end, which

are not prohibited, but consistent with the letter and spirit of the

Constitution, are constitutional.” 1842 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.1843

Practically every power of the National Government has been

expanded in some degree by the Necessary and Proper Clause. Under the authority granted it by that clause, Congress has adopted

measures requisite to discharge the treaty obligations of the nation,1844 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.1845 The right of

Congress to use all known and appropriate means for collecting revenue, including the distraint of property for federal taxes,1846 and

to exercise the power of eminent domain to acquire property for pub1841 17 U.S. (4 Wheat.) 316 (1819).

1842 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.”

1843 See “Delegation of Legislative Power,” supra.

1844 Neely v. Henkel, 180 U.S. 109, 121 (1901). See also Missouri v. Holland,

252 U.S. 416 (1920).

1845 See discussion of “Necessary and Proper Clause” under the commerce power,

supra.

1846 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.)

272, 281 (1856). Congress may also legislate to protect its spending power. Sabri v.

United States, 541 U.S. 600 (2004) (upholding imposition of criminal penalties for

bribery of state and local officials administering programs receiving federal funds).

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause

380 ART. I—LEGISLATIVE DEPARTMENT
lic use,1847 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. Because 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 to sustain the comprehensive control that

Congress has asserted over this subject.1848

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.1849 Illustrative of the offenses which have been punished under this power

are the alteration of registered bonds,1850 the bringing of counterfeit bonds into the country,1851 conspiracy to injure prisoners in custody of a United States marshal,1852 impersonation of a federal officer with intent to defraud,1853 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,1854 the receipt by government officials of contributions from government employees for political purposes,1855 and advocating the overthrow of the government

by force.1856 Part I of Title 18 of the United States Code comprises

more than 500 sections defining penal offenses against the United

States.1857

1847 Kohl v. United States, 91 U.S. 367, 373 (1876); United States v. Fox, 95

U.S. 670 (1878).

1848 See “Fiscal and Monetary Powers of Congress,” supra.

1849 United States v. Fox, 95 U.S. 670, 672 (1878); 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.

1850 Ex parte Carll, 106 U.S. 521 (1883).

1851 United States v. Marigold, 50 U.S. (9 How.) 560, 567 (1850).

1852 Logan v. United States, 144 U.S. 263 (1892).

1853 United States v. Barnow, 239 U.S. 74 (1915).

1854 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).

1855 Ex parte Curtis, 106 U.S. 371 (1882).

1856 18 U.S.C. § 2385.

1857 See 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.

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause

ART. I—LEGISLATIVE DEPARTMENT 381
One of the most expansive interpretations of the Necessary and

Proper Clause arose in the context of the administration of the federal penal system. In United States v. Comstock,

1858 the Court evaluated a federal statute which allowed for the civil commitment of a

federal prisoner past the term of his imprisonment if that prisoner

would have serious difficulty in refraining from sexually violent conduct or child molestation.1859 The statute contained no requirement

that the threatened future conduct would fall under federal jurisdiction, raising the question of what constitutional basis could be

cited for its enforcement. The majority opinion in Comstock upheld

the statute after considering five factors: (1) the historic breadth of

the Necessary and Proper Clause; (2) the history of federal involvement in this area; (3) the reason for the statute’s enactment; (4)

the statute’s accommodation of state interests; and (5) whether the

scope of statute was too attenuated from Article I powers.1860

In evaluating these factors, the Court noted that previous federal involvement in the area included not only the civil commitment of defendants who were incompetent to stand trial or who became insane during the course of their imprisonment, but, starting

in 1949, the continued confinement of those adjudged incompetent

or insane past the end of their prison term. In upholding the sex

offender statute, the Court found that protection of the public and

the probability that such prisoners would not be committed by the

state represented a “rational basis” for the passage of such legislation.1861 The Court further found that state interests were pro1858 560 U.S. ___, No. 08–1224, slip op. (May 17, 2010). Breyer wrote the opinion of the Court, joined by Justices Roberts, Stevens, Ginsburg and Sotomayor. Justices Kennedy and Alito concurred in the judgement, while Justices Thomas and Scalia

dissented.

1859 Where an ex-convict was released subject to legal requirements related to

his previous conviction, the Court has found little difficulty in those requirements

being modified after his release under a subsequently enacted statute. In United

States v. Kebodeaux, 570 U.S. ___, No. 12–418, slip op. (2013), the Court found that

a sex offender, convicted by the Air Force in a special court-martial, had, upon his

release, been subject to state sex offender registration laws, violation of which was

prohibited under the Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103–322, 108 Stat. 2038–2042. Kebodeaux was

later convicted of failing to register under the “very similar” provisions of the laterenacted Sex Offender Registration and Notification Act (SORNA), Pub. L. No. 109–

24, Title I, 120 Stat. 590, 42 U.S.C. §§ 16901 et seq., which had superseded the Jacob Wetterling Act. The Court found Congress was well within its authority under

the Necessary and Proper Clause to have modified the Wetterling Act’s registration

requirements, and Kebodeaux was properly subject to SORNA requirements, even if

they were enacted after his release.

1860 560 U.S. ___, No. 08–1224, slip op. at 22.

1861 Justice Kennedy, in concurrence, expressed concern that whether a statute

is “rationally related” to the implementation of a power, see Williamson v. Lee Optical Co., 348 U.S. 483, 487–88 (1955) (Due Process Clause), is too deferential a standard to be used as regards the Necessary and Proper Clause. Justice Kennedy would

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause

382 ART. I—LEGISLATIVE DEPARTMENT
tected by the legislation, as the statute provided for transfer of the

committed individuals to state authorities willing to accept them.

Finally, the Court found that the statute was not too attenuated

from the Article I powers underlying the criminal laws which had

been the basis for incarceration, as it related to the responsible administration of the United States prison system.

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.1862 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 corporations.1863 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.1864 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.1865

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 . . . ,’ ” 1866 have been held to give Congress virtually complete control over money and currency. A prohibiuse a more rigorous “rational basis” standard, found in Commerce Clause cases, where

there must be shown a “demonstrated link in fact, based on empirical demonstration.” See Comstock, 560 U.S. ___, No. 08–1224, slip op. at 3 (Kennedy, J., concurring).

1862 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

1863 Osborn 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).

1864 First National Bank v. Follows ex rel. Union Trust Co., 244 U.S. 416 (1917);

Missouri ex rel. Burnes Nat’l Bank v. Duncan, 265 U.S. 17 (1924).

1865 Smith v. Kansas City Title Co., 255 U.S. 180 (1921).

1866 Juilliard v. Greenman, 110 U.S. 421, 449 (1884).

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause

ART. I—LEGISLATIVE DEPARTMENT 383
tive tax on the notes of state banks,1867 the issuance of treasury

notes impressed with the quality of legal tender in payment of private debts 1868 and the abrogation of clauses in private contracts,

which called for payment in gold coin,1869 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,1870 or a corporation to construct an interstate bridge,1871 as instrumentalities for

promoting commerce among the states, and to create corporations

to manufacture aircraft 1872 or merchant vessels 1873 as incidental to

the war power.

Courts and Judicial Proceedings

Because 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. . . .” 1874 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,1875 may require the tolling of

a state statute of limitations while a state cause of action that is

supplemental to a federal claim is pending in federal court,1876 and

may authorize the removal before trial of civil cases arising under

the laws of the United States.1877 It may prescribe the effect to be

given to judicial proceedings of the federal courts 1878 and may make

all laws necessary for carrying into execution the judgments of federal courts.1879 When a territory is admitted as a state, Congress

may designate the court to which the records of the territorial courts

1867 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

1868 Juilliard v. Greenman, 110 U.S. 421 (1884). See also Legal Tender Cases

(Knox v. Lee), 79 U.S. (12 Wall.) 457 (1871).

1869 Norman v. Baltimore & Ohio R.R., 294 U.S. 240, 303 (1935).

1870 Pacific R.R. Removal Cases, 115 U.S. 1 (1885); California v. Pacific R.R., 127

U.S. 1, 39 (1888).

1871 Luxton v. North River Bridge Co., 153 U.S. 525 (1894).

1872 Clallam County v. United States, 263 U.S. 341 (1923).

1873 Sloan Shipyards v. United States Fleet Corp., 258 U.S. 549 (1922).

1874 Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 721 (1838).

1875 Tennessee v. Davis, 100 U.S. 257, 263 (1880).

1876 Jinks v. Richland County, 538 U.S. 456 (2003).

1877 Railway Company v. Whitton, 80 U.S. (13 Wall.) 270, 287 (1872).

1878 Embry v. Palmer, 107 U.S. 3 (1883).

1879 Bank of the United States v. Halstead, 23 U.S. (10 Wheat.) 51, 53 (1825).

Sec. 8—Powers of Congress Cl. 18—Necessary and Proper Clause

384 ART. I—LEGISLATIVE DEPARTMENT
shall be transferred and may prescribe the mode for enforcement

and review of judgments rendered by those courts.1880 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.” 1881

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 1924,1882 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 appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compensation under the Longshore

and Harbor Workers’ Compensation Act,1883 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.1884

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.1885 This power cannot be delegated to the states; hence, acts

of Congress that purported to make state workers’ compensation laws

applicable to maritime cases were held unconstitutional.1886

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

1880 Express Co. v. Kountze Bros., 75 U.S. (8 Wall.) 342, 350 (1869).

1881 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, 67–69 (1982).

1882 43 Stat. 5 (1924). See Sinclair v. United States, 279 U.S. 263 (1929).

1883 Paramino Co. v. Marshall, 309 U.S. 370 (1940).

1884 Pope v. United States, 323 U.S. 1 (1944).

1885 Detroit Trust Co. v. The Thomas Barlum, 293 U.S. 21 (1934).

1886 Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920); Washington v. Dawson

& Co., 264 U.S. 219 (1924).

Sec. 9—Powers Denied to Congress Cl. 1—Importation of Slaves

ART. I—LEGISLATIVE DEPARTMENT 385
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

This sanction for 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,

1887 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.

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 1888 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.1889

Only the Federal Government and not the states, it has been

held obliquely, is limited by the clause.1890 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.1891 The clause itself does

1887 60 U.S. (19 How.) 393, 411 (1857).

1888 R. WALKER, THE AMERICAN RECEPTION OF THE WRIT OF LIBERTY (1961).

1889 See discussion under Article III, Habeas Corpus: Scope of Writ.

1890 Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917).

1891 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 proSec. 9—Powers Denied to Congress Cl. 1—Importation of Slaves

386 ART. I—LEGISLATIVE DEPARTMENT
not specify, and although most of the clauses of § 9 are directed at

Congress not all of them are.1892 At the Convention, the first proposal of a suspending authority expressly vested “in the legislature” the suspending power,1893 but the author of this proposal did

not retain this language when the matter was taken up,1894 the present language then being adopted.1895 Nevertheless, Congress’s power

to suspend was assumed in early commentary 1896 and stated in dictum by the Court.1897 President Lincoln suspended the privilege on

his own motion in the early Civil War period,1898 but this met with

such opposition 1899 that he sought and received congressional authorization.1900 Three other suspensions were subsequently ordered

on the basis of more or less express authorizations from Congress.1901

When suspension operates, what is suspended? In Ex parte Milligan,

1902 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 prohibition on suspension was adopted over the opposition of three states. 2 M. FARRAND, op. cit., 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.

1892 Cf. Clauses 7, 8.

1893 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 341 (rev. ed.

1937).

1894 Id. at 438.

1895 Id.

1896 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1336 (1833).

1897 Ex parte Bollman, 8 U.S. (4 Cr.) 75, 101 (1807).

1898 Cf. J. RANDALL, CONSTITUTIONAL PROBLEMS UNDER LINCOLN 118–139 (rev. ed. 1951).

1899 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).

1900 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).

1901 The 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.

1902 71 U.S. (4 Wall.) 2, 130–131 (1866).

Sec. 9—Powers Denied to Congress Cl. 2—Habeas Corpus Suspension

ART. I—LEGISLATIVE DEPARTMENT 387
vided 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.1903 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.1904 “[At] the absolute minimum,” the

Court wrote, “the Suspension Clause protects the writ as it existed

in 1789. At its historical core, the writ of 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.” 1905

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.” 1906 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.1907

1903 Felker v. Turpin, 518 U.S. 651 (1996).

1904 INS v. St. Cyr, 533 U.S. 289 (2001).

1905 533 U.S. at 301 (internal quotation marks and citation omitted).

1906 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1338 (1833).

1907 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1867); cf. United States

v. Brown, 381 U.S. 437, 441–442 (1965).

Sec. 9—Powers Denied to Congress Cl. 2—Habeas Corpus Suspension

388 ART. I—LEGISLATIVE DEPARTMENT
The prohibition embodied in this clause is not to be 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, which would violate the separation of powers.1908 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. . . .” 1909 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 as

violating it.1910 In Ex parte Garland,

1911 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,1912 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 used it to strike down a rider to an appropriations

bill forbidding the use of money appropriated in the bill to pay the

salaries of three named persons whom the House of Representatives wished discharged because they were deemed to be “subversive.” 1913

Then, in United States v. Brown,

1914 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’s 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

1908 United States v. Brown, 381 U.S. 437, 442–46 (1965). Four dissenting Justices, however, denied that any separation of powers concept underlay the clause.

Id. at 472–73.

1909 United States v. Lovett, 328 U.S. 303, 315 (1946).

1910 For a rejection of the Court’s approach and a plea to adhere to the traditional concept, see id. at 318 (Justice Frankfurter concurring).

1911 71 U.S. (4 Wall.) 333 (1867).

1912 Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867).

1913 United States v. Lovett, 328 U.S. 303 (1946).

1914 381 U.S. 437 (1965).

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder

ART. I—LEGISLATIVE DEPARTMENT 389
being forbidden to hold union office.1915 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.1916

The majority’s decision in Brown cast in doubt 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,1917 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,1918 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,1919 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.

1920 The statute there forbade any

partner or employee of a firm primarily engaged in underwriting

securities from being a director of a national bank.1921 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.

1915 The Court of Appeals had voided the statute as an infringement of First

Amendment expression and association rights, but the Court majority did not rely

upon 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.

1916 United States v. Brown, 381 U.S. 437, 462 (1965) (Justices White, Clark,

Harlan, and Stewart dissenting).

1917 American Communications Ass’n v. Douds, 339 U.S. 382 (1950).

1918 Douds, 339 U.S. at 413, 414, cited in United States v. Brown, 381 U.S. 437,

457–458 (1965).

1919 Brown, 381 U.S. at 458–61.

1920 329 U.S. 441 (1947).

1921 12 U.S.C. § 78.

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder

390 ART. I—LEGISLATIVE DEPARTMENT
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,1922

the Court set out a rather different formula for deciding bill of attainder cases.1923 The law specifically applied only to 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.1924 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.1925 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.

1922 The Presidential Recordings and Materials Preservation Act, Pub. 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).

1923 Nixon v. Administrator of General Services, 433 U.S. 425, 468–84 (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 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.

1924 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.

1925 433 U.S. at 473–84.

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ART. I—LEGISLATIVE DEPARTMENT 391
The clause protects individual persons and groups who are vulnerable to nonjudicial determinations of guilt and does not apply

to a state; nor does a state have standing to invoke the clause for

its citizens against the Federal Government.1926

EX POST FACTO LAWS

Definition

Both federal and state governments are prohibited from enacting ex post facto laws,1927 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.” 1928 But

in the early case of Calder v. Bull,

1929 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,1930 the constitutional prohibition may not be evaded by giving a civil form to a

measure that is essentially criminal.1931 Every law that makes criminal an act that was innocent when done, or that 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.1932

A prosecution under a temporary statute that 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.1933 Because this provision does not apply 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.1934

1926 South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966).

1927 The prohibition on state ex post facto legislation appears in Art. I, § 10, cl.

1.

1928 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1339 (1833).

1929 3 U.S. (3 Dall.) 386, 393 (1798).

1930 Bankers Trust Co. v. Blodgett, 260 U.S. 647, 652 (1923).

1931 Burgess v. Salmon, 97 U.S. 381 (1878).

1932 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).

1933 United States v. Powers, 307 U.S. 214 (1939).

1934 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).

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392 ART. I—LEGISLATIVE DEPARTMENT
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.1935 “A court must ascertain whether the legislature intended the

statute to establish civil proceedings. A court will reject the legislature’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.” 1936 A

statute that has been held to be civil and not criminal in nature

cannot be deemed punitive “as applied” to a single individual.1937

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 because it operated as a punishment for past acts.1938 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.1939 A deportation law authorizing the Secretary of

Labor to expel aliens for criminal acts committed before its passage is not ex post facto because deportation is not a punishment.1940 For this reason, a statute terminating payment of old-age

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.1941 Likewise, an act permitting the cancel1935 Kansas v. Hendricks, 521 U.S. 346 (1997); Seling v. Young, 531 U.S. 250

(2001).

1936 Seling v. Young, 531 U.S. 250, 261 (2001) (interpreting Art. I, § 10).

1937 Seling v. Young, 531 U.S. at 263 (2001).

1938 Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867).

1939 Murphy v. Ramsey, 114 U.S. 15 (1885).

1940 Mahler 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, 690–91 (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 retrospectively subject him to a new punishment.

1941 Flemming v. Nestor, 363 U.S. 603 (1960).

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder

ART. I—LEGISLATIVE DEPARTMENT 393
lation 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.1942

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 provided

when the offense was committed, Congress may designate the place

of trial thereafter.1943 A law that 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,1944 but a

statute that 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.1945

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.” 1946 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.” 1947 The first case

to come before the Court on this issue was Hylton v. United States,

1948

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 per1942 Johannessen v. United States, 225 U.S. 227 (1912).

1943 Cook v. United States, 138 U.S. 157, 183 (1891).

1944 Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).

1945 Hopt v. Utah, 110 U.S. 574, 589 (1884).

1946 157 U.S. 429, 573 (1895).

1947 J. MADISON, THE DEBATES IN THE FEDERAL CONVENTION OF 1787 435 (G. Hunt &

J. Scott eds., Greenwood Press ed. 1970).

1948 3 U.S. (3 Dall.) 171 (1796).

Sec. 9—Powers Denied to Congress Cl. 3—Bills of Attainder

394 ART. I—LEGISLATIVE DEPARTMENT
sonal 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,” 1949 whereas Madison, both on the floor

of Congress and in correspondence, attacked it as “direct” and therefore void, because it was levied without apportionment.1950 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” that 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 that their Negroes and land should

be subjected to a specific tax.1951

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,1952 a tax on the circulating notes of state banks,1953

an inheritance tax on real estate,1954 and finally a general tax on

incomes.1955 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.1956 Then,

almost one hundred years after the Hylton case, the famous case of

Pollock v. Farmers’ Loan & Trust Co.

1957 arose under the Income

1949 THE 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.”

1950 4 ANNALS OF CONGRESS 730 (1794); 2 LETTERS AND OTHER WRITINGS OF JAMES MADISON 14 (1865).

1951 3 U.S. (3 Dall.) 171, 177 (1796).

1952 Pacific Ins. Co. v. Soule, 74 U.S. (7 Wall.) 433 (1869).

1953 Veazie Bank v. Fenno, 75 U.S. (8 Wall.) 533 (1869).

1954 Scholey v. Rew, 90 U.S. (23 Wall.) 331 (1875).

1955 Springer v. United States, 102 U.S. 586 (1881).

1956 102 U.S. at 602.

1957 157 U.S. 429 (1895); 158 U.S. 601 (1895).

Sec. 9—Powers Denied to Congress Cl. 4—Taxes

ART. I—LEGISLATIVE DEPARTMENT 395
Tax Act of 1894.1958 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 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,” 1959 it sustained as

“excises” a tax on sales on business exchanges,1960 a succession tax

which was construed to fall on the recipients of the property transmitted rather than on the estate of the decedent,1961 and a tax on

manufactured tobacco in the hands of a dealer, after an excise tax

had been paid by the manufacturer.1962 Again, in Thomas v. United

States,

1963 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.” 1964 On the same day, in Spreckels Sugar Refining

Co. v. McClain,

1965 it ruled that an exaction, denominated a special

excise tax, that was 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.1966 was the same. In Flint, 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.,

1967 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 be1958 28 Stat. 509, 553 (1894).

1959 Stanton v. Baltic Mining Co., 240 U.S. 103 (1916); Knowlton v. Moore, 178

U.S. 41, 80 (1900).

1960 Nicol v. Ames, 173 U.S. 509 (1899).

1961 Knowlton v. Moore, 178 U.S. 41 (1900).

1962 Patton v. Brady, 184 U.S. 608 (1902).

1963 192 U.S. 363 (1904).

1964 192 U.S. at 370.

1965 192 U.S. 397 (1904).

1966 220 U.S. 107 (1911).

1967 240 U.S. 103 (1916).

Sec. 9—Powers Denied to Congress Cl. 4—Taxes

396 ART. I—LEGISLATIVE DEPARTMENT
cause of its ownership, but a true excise levied on the results of

the business of carrying on mining operations.” 1968

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.

1969 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.” 1970

Having established this proposition, the Court had no difficulty in

deciding that the inclusion in the computation of the estate tax of

property held as joint tenants,1971 or as tenants by the entirety,1972

or the entire value of community property owned by husband and

wife,1973 or the proceeds of insurance upon the life of the decedent,1974 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.” 1975 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.” 1976

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

1968 240 U.S. at 114.

1969 232 U.S. 261 (1914).

1970 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921).

1971 Phillips v. Dime Trust & S.D. Co., 284 U.S. 160 (1931).

1972 Tyler v. United States, 281 U.S. 497 (1930).

1973 Fernandez v. Wiener, 326 U.S. 340 (1945).

1974 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).

1975 Bromley v. McCaughn, 280 U.S. 124, 136 (1929). See also Helvering v. Bullard, 303 U.S. 297 (1938).

1976 Bromley v. McCaughn, 280 U.S. 124, 140 (1929).

Sec. 9—Powers Denied to Congress Cl. 4—Taxes

ART. I—LEGISLATIVE DEPARTMENT 397
proportion to population in the District of Columbia.1977 A penalty

imposed for nonpayment of a direct tax is not a part of the tax 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.1978

Clause 5. No Tax or Duty shall be laid on Articles exported

from any State.

TAXES ON EXPORTS

The prohibition on excise taxes applies only to the imposition

of duties on goods by reason of exportation.1979 The word “export”

signifies goods exported to a foreign country, not to an unincorporated territory of the United States.1980 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.1981

Continuing its refusal to modify its export clause jurisprudence,1982 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.” 1983 However, the clause does not interdict a “user fee,” which 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 ex1977 Loughborough v. Blake, 18 U.S. (5 Wheat.) 317 (1820).

1978 De Treville v. Smalls, 98 U.S. 517, 527 (1879).

1979 Turpin v. Burgess, 117 U.S. 504, 507 (1886). Cf. Almy v. California, 65 U.S.

(24 How.) 169, 174 (1861).

1980 Dooley v. United States, 183 U.S. 151, 154 (1901).

1981 Cornell v. Coyne, 192 U.S. 418, 428 (1904); Turpin v. Burgess, 117 U.S. 504,

507 (1886).

1982 See United States v. IBM, 517 U.S. 843, 850–61 (1996).

1983 United States v. United States Shoe Corp., 523 U.S. 360, 363 (1998).

Sec. 9—Powers Denied to Congress Cl. 4—Taxes

398 ART. I—LEGISLATIVE DEPARTMENT
port 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 tonnage of a

vessel and the length of time it spent in port.1984 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.1985 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.1986 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.1987

In United States v. IBM Corp.,

1988 the Court rejected 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 ImportExport Clause 1989 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,1990 charter parties,1991 or marine insurance policies,1992 was in effect a tax or duty

upon exports, and so void; but an act requiring the stamping of all

1984 523 U.S. at 367–69.

1985 Spalding & Bros. v. Edwards, 262 U.S. 66 (1923).

1986 Thompson v. United States, 142 U.S. 471 (1892).

1987 Peck & Co. v. Lowe, 247 U.S. 165 (1918); National Paper Co. v. Bowers, 266

U.S. 373 (1924).

1988 517 U.S. 843 (1996).

1989 Article I, § 10, cl. 2, applying to the states.

1990 Fairbank v. United States, 181 U.S. 283 (1901).

1991 United States v. Hvoslef, 237 U.S. 1 (1915).

1992 Thames & 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

Sec. 9—Powers Denied to Congress Cl. 5—Export Duties

ART. I—LEGISLATIVE DEPARTMENT 399
packages of tobacco intended for export in order to prevent fraud

was held not to be forbidden as a tax on exports.1993

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 no-preference clause was designed to prevent preferences

between ports because of their location in different states. Discriminations between individual ports are not prohibited. Acting under

the Commerce Clause, Congress may do many things that benefit

particular ports and that 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.1994 A rate order of the Interstate Commerce Commission

that 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.1995 Although there were a few early intimations that this clause was applicable to the states as well as to Congress,1996 the Supreme Court declared emphatically in 1886 that state

legislation was unaffected by it.1997 After more than a century, the

Court confirmed, over the objection that this clause was offended,

the power that the First Congress had exercised 1998 in sanctioning

the continued supervision and regulation of pilots by the states.1999

been presented and should be decided by overruling the earlier case. Id. at 863 (Justices Kennedy and Ginsburg dissenting).

1993 Pace v. Burgess, 92 U.S. 372 (1876); Turpin v. Burgess, 117 U.S. 504, 505

(1886).

1994 Louisiana 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.

1995 Louisiana PSC v. Texas & N.O. R.R., 284 U.S. 125, 132 (1931).

1996 Passenger 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).

1997 Morgan 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).

1998 1 Stat. 53, 54, § 4 (1789).

1999 Thompson v. Darden, 198 U.S. 310 (1905).

Sec. 9—Powers Denied to Congress Cl. 5—Export Duties

400 ART. I—LEGISLATIVE DEPARTMENT
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

The restriction on drawing money from the Treasury “was intended as a restriction upon the disbursing authority of the Executive department,” and “means simply that no money can be paid

out of the Treasury unless it has been appropriated by an act of

Congress.” 2000 Congress 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.2001 In making appropriations to pay claims

arising out of the Civil War, Congress could, the Court held, provide that certain persons, i.e., those who had participated in 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.2002

The Court has also recognized that Congress has wide discretion with regard to the extent to which it may prescribe details of

expenditures for which it appropriates funds, and has approved the

frequent practice of making “lump sum” appropriations, i.e., general appropriations of large amounts to be allotted and expended

as directed by designated government agencies. As an example, the

Court cited the act of June 17, 1902,2003 “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 for the reclamation of arid and semi-arid lands within those

states and territories,” and “[t]he expenditures [were] to be made

under the direction of the Secretary of the Interior upon such projects as he determined to be practicable and advisable.” The Court

declared: “The constitutionality of this delegation of authority has

never been seriously questioned.” 2004

2000 Cincinnati Soap Co. v. United States, 301 U.S. 308, 321 (1937); Knote v.

United States, 95 U.S. 149, 154 (1877).

2001 United States v. Price, 116 U.S. 43 (1885); United States v. Realty Co., 163

U.S. 427, 439 (1896); Allen v. Smith, 173 U.S. 389, 393 (1899).

2002 Hart v. United States, 118 U.S. 62, 67 (1886).

2003 32 Stat. 388 (1902).

2004 Cincinnati Soap Co. v. United States, 301 U.S. 308, 322 (1937).

Sec. 9—Powers Denied to Congress Cl. 7—Public Money Appropriations

ART. I—LEGISLATIVE DEPARTMENT 401
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.2005 Nor may a government 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.2006

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,2007

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.2008 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.2009

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

2005 Reeside v. Walker, 52 U.S. (11 How.) 272 (1851).

2006 OPM v. Richmond, 496 U.S. 414 (1990).

2007 United States v. Klein, 80 U.S. (13 Wall.) 128 (1872).

2008 Knote v. United States, 95 U.S. 149, 154 (1877); Austin v. United States,

155 U.S. 417, 427 (1894).

2009 Hart v. United States, 118 U.S. 62, 67 (1886).

Sec. 9—Powers Denied to Congress Cl. 7—Public Money Appropriations

402 ART. I—LEGISLATIVE DEPARTMENT
in this way accredits him as its representative,” which is prohibited by this clause of the Constitution.2010

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 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, the Court relied on the prohibition on treaties, alliances, or confederations in holding that the Confederation formed by the seceding states could not be recognized as

having any legal existence.2011 Today, the prohibition’s practical significance lies in the limitations that 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,

2012 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, because the oil under the three-mile marginal belt along the California coast might well become the subject

of international dispute, and because the ocean, including this threemile 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.2013 In Skiriotes v. Florida,

2014 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

2010 13 Ops. Atty. Gen. 538 (1871).

2011 Williams v. Bruffy, 96 U.S. 176, 183 (1878).

2012 39 U.S. (14 Pet.) 540 (1840).

2013 United States v. California, 332 U.S. 19 (1947).

2014 313 U.S. 69 (1941).

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ART. I—LEGISLATIVE DEPARTMENT 403
authority of the United States over its citizens in like circumstances.” 2015

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 ordinary

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, that 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.2016 The states are not

forbidden, however, to issue coupons receivable for taxes,2017 nor to

execute instruments binding themselves to pay money at a future

day for services rendered or money borrowed.2018 Bills issued by state

banks are not bills of credit; 2019 it is immaterial that the state is

the sole stockholder of the bank,2020 that the officers of the bank

were elected by the state legislature,2021 or that the capital of the

bank was raised by the sale of state bonds.2022

Legal Tender 2023

Relying on this clause, which applies only to the states and not

to the Federal Government, 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.2024 Because, 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

2015 313 U.S. at 78–79.

2016 Craig v. Missouri, 29 U.S. (4 Pet.) 410, 425 (1830); Byrne v. Missouri, 33

U.S. (8 Pet.) 40 (1834).

2017 Virginia Coupon Cases (Poindexter v. Greenhow), 114 U.S. 270 (1885); Chaffin v. Taylor, 116 U.S. 567 (1886).

2018 Houston & Texas Central R.R. v. Texas, 177 U.S. 66 (1900).

2019 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

2020 Darrington v. Bank of Alabama, 54 U.S. (13 How.) 12, 15 (1851); Curran v.

Arkansas, 56 U.S. (15 How.) 304, 317 (1854).

2021 Briscoe v. Bank of Kentucky, 36 U.S. (11 Pet.) 257 (1837).

2022 Woodruff v. Trapnall, 51 U.S. (10 How.) 190, 205 (1851).

2023 Juilliard v. Greenman, 110 U.S. 421, 446 (1884).

2024 Gwin v. Breedlove, 43 U.S. (2 How.) 29, 38 (1844). See also Griffin v. Thompson, 43 U.S. (2 How.) 244 (1844).

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providing that checks drawn on local banks should, at the option of

the bank, be payable in exchange drafts, was held valid.2025

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

that they had never given such aid, were held invalid as being bills

of attainder, as well as ex post facto laws.2026

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.2027 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.” 2028

Ex Post Facto Laws

Scope of the Provision.—The prohibition against state ex post

facto laws, 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.2029 Distinguishing between civil and penal laws was at the heart of the Court’s

decision in Smith v. Doe 2030 upholding application of Alaska’s “Megan’s Law” to sex offenders who were convicted before the law’s en2025 Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649, 659

(1923).

2026 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).

2027 Garner 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).

2028 De Veau v. Braisted, 363 U.S. 144, 160 (1960). Presumably, United States v.

Brown, 381 U.S. 437 (1965), does not qualify this decision.

2029 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.

2030 538 U.S. 84 (2003).

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ART. I—LEGISLATIVE DEPARTMENT 405
actment. The Alaska law requires released sex offenders to register

with local police and also provides for public notification via the Internet. The Court accords “considerable deference” to legislative intent; if the legislature’s purpose was to enact a civil regulatory scheme,

then the law can be ex post facto only if there is “the clearest proof”

of punitive effect.2031 Here, the Court determined, the legislative intent was civil and non-punitive—to promote public safety by “protecting the public from sex offenders.” The Court then identified several “useful guideposts” to aid analysis of whether a law intended

to be non-punitive nonetheless has punitive effect. Registration and

public notification of sex offenders are of recent origin, and are not

viewed as a “traditional means of punishment.” 2032 The Act does

not subject the registrants to an “affirmative disability or restraint”; there is no physical restraint or occupational disbarment,

and there is no restraint or supervision of living conditions, as there

can be under conditions of probation. The fact that the law might

deter future crimes does not make it punitive. All that is required,

the Court explained, is a rational connection to a non-punitive purpose, and the statute need not be narrowly tailored to that end.2033

Nor is the act “excessive” in relation to its regulatory purpose.2034

Rather, the “means chosen are reasonable in light of the [state’s]

non-punitive objective” of promoting public safety by giving its citizens information about former sex offenders, who, as a group, have

an alarmingly high rate of recidivism.2035

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.” 2036 The bar is directed only against

2031 538 U.S. at 92.

2032 The law’s requirements do not closely resemble punishments of public disgrace imposed in colonial times; the stigma of Megan’s Law results not from public

shaming but from the dissemination of information about a criminal record, most of

which is already public. 538 U.S. at 98.

2033 538 U.S. at 102.

2034 Excessiveness was alleged to stem both from the law’s duration (15 years of

notification by those convicted of less serious offenses; lifetime registration by serious offenders) and in terms of the widespread (Internet) distribution of the information.

2035 538 U.S. at 105. Unlike involuntary civil commitment, where “the magnitude of restraint [makes] individual assessment appropriate,” the state may make

“reasonable categorical judgments,” and need not provide individualized determinations of dangerousness. Id. at 103.

2036 Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v. Ohio, 269

U.S. 167, 169–70 (1925)). Alternatively, the Court described the reach of the clause

as extending to laws that “alter the definition of crimes or increase the punishment

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406 ART. I—LEGISLATIVE DEPARTMENT
legislative action and does not touch erroneous or inconsistent decisions by the courts.2037

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.2038 A statute that mitigates the rigor of the law

in force at the time the crime was committed,2039 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 2040 or making illegal the continued possession of intoxicating liquors which were

lawfully acquired 2041 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,2042 or excluding convicted felons from waterfront union offices unless pardoned or in

receipt of a parole board’s good conduct certificate,2043 may be enforced against a person convicted before the measures were passed.

But the test oath prescribed after the Civil War, under which office

holders, attorneys, teachers, clergymen, and others were required

to swear that they had not participated in the rebellion or expressed sympathy for it, was held invalid on the ground that it had

no reasonable relation to fitness to perform official or professional

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).

2037 Frank 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).

2038 Jaehne v. New York, 128 U.S. 189, 194 (1888).

2039 Rooney v. North Dakota, 196 U.S. 319, 325 (1905).

2040 Chicago & Alton R.R. v. Tranbarger, 238 U.S. 67 (1915).

2041 Samuels v. McCurdy, 267 U.S. 188 (1925).

2042 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).

2043 DeVeau v. Braisted, 363 U.S. 144, 160 (1960).

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ART. I—LEGISLATIVE DEPARTMENT 407
duties, but rather was a punishment for past offenses.2044 A similar

oath required of suitors in the courts also was held void.2045

Changes in Punishment.—Justice Chase in Calder v. Bull gave

an alternative description of the four categories of ex post facto laws,

two of which related to punishment. One such category was laws

that inflict punishment “where the party was not, by law, liable to

any punishment”; the other was laws that inflict greater punishment than was authorized when the crime was committed.2046

Illustrative of the first of these punishment categories is “a law

enacted after expiration of a previously applicable statute of limitations period [as] applied to revive a previously time-barred prosecution.” Such a law, the Court ruled in Stogner v. California,

2047 is

prohibited as ex post facto. Courts that had upheld extension of unexpired statutes of limitation had been careful to distinguish situations in which the limitations periods have expired. The Court viewed

revival of criminal liability after the law had granted a person “effective amnesty” as being “unfair” in the sense addressed by the

Ex Post Facto Clause.

Illustrative of the second punishment category are statutes, all

applicable to offenses committed prior to their enactment, that changed

an indeterminate sentence law to require a judge to impose the maximum sentence,2048 that required solitary confinement for prisoners

previously sentenced to death,2049 and that allowed a warden to fix,

within limits of one week, and keep secret the time of execution.2050 Because it made more onerous the punishment for crimes

committed before its enactment, a law that altered sentencing guidelines to make it more likely that 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.2051 The Court adopted similar reasoning regarding changes in the U.S. Sentencing Guidelines: even though the Guide2044 Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 316 (1867).

2045 Pierce v. Carskadon, 83 U.S. (16 Wall.) 234, 237–39 (1873).

2046 3 U.S. (3 Dall.) 386, 389 (1798).

2047 539 U.S. 607, 632–33 (2003) (invalidating application of California’s law to

revive child abuse charges 22 years after the limitations period had run for the alleged crimes).

2048 Lindsey v. Washington, 301 U.S. 397 (1937). But note the limitation of Lindsey in Dobbert v. Florida, 432 U.S. 282, 298–301 (1977).

2049 Holden v. Minnesota, 137 U.S. 483, 491 (1890).

2050 Medley, Petitioner, 134 U.S. 160, 171 (1890).

2051 Miller 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 some laws impermissible because they operated to the disadvantage

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408 ART. I—LEGISLATIVE DEPARTMENT
lines are advisory only, an increase in the applicable sentencing range

is ex post facto if applied to a previously committed crime because

of a significant risk of a lengthier sentence being imposed.2052 But

laws providing heavier penalties for new crimes thereafter committed by habitual criminals,2053 “prescrib[ing] electrocution as the method

of producing death instead of hanging, fix[ing] the place therefor

within the penitentiary, and permitt[ing] the presence of more invited witnesses that had theretofore been allowed,” 2054 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.2055

In Dobbert v. Florida,

2056 the Court may have formulated a new

test for determining when the punishment provided by a criminal

statute is ex post facto. The defendant murdered two of his children at a time when Florida law provided the death penalty upon

conviction for certain takings of life. Subsequently, the Supreme Court

held capital sentencing laws similar to Florida’s unconstitutional,

although convictions obtained under the statutes were not to be overturned,2057 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 had been enacted after the commission of his offenses. The Court rejected the ex post facto challenge to the sentence on the basis that whether or not the old statute was constitutional, “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 asof 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).

2052 Peugh v. United States, 569 U.S. ___, No. 12–62, slip op. (2013).

2053 Gryger v. Burke, 334 U.S. 728 (1948); McDonald v. Massachusetts, 180 U.S.

311 (1901); Graham v. West Virginia, 224 U.S. 616 (1912).

2054 Malloy v. South Carolina, 237 U.S. 180, 183 (1915).

2055 Rooney v. North Dakota, 196 U.S. 319, 324 (1905).

2056 432 U.S. 282, 297–98 (1977).

2057 Furman v. Georgia, 408 U.S. 238 (1972). The new law was sustained in Proffitt v. Florida, 428 U.S. 242 (1976).

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cribed to the act of murder.” 2058 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 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.2059 Laws shifting the place

of trial from one county to another,2060 increasing the number of

appellate judges and dividing the appellate court into divisions,2061

granting a right of appeal to the state,2062 changing the method of

selecting and summoning jurors,2063 making separate trials for persons jointly indicted a matter of discretion for the trial court rather

than a matter of right,2064 and allowing a comparison of handwriting experts,2065 have been sustained over the objection that they

were ex post facto. It was 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.2066 The Court has now

disavowed this position.2067 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.2068

2058 432 U.S. at 297.

2059 Gibson v. Mississippi, 162 U.S. 565, 590 (1896).

2060 Gut v. Minnesota, 76 U.S. (9 Wall.) 35, 37 (1870).

2061 Duncan v. Missouri, 152 U.S. 377 (1894).

2062 Mallett v. North Carolina, 181 U.S. 589, 593 (1901).

2063 Gibson v. Mississippi, 162 U.S. 565, 588 (1896).

2064 Beazell v. Ohio, 269 U.S. 167 (1925).

2065 Thompson v. Missouri, 171 U.S. 380, 381 (1898).

2066 E.g., Duncan v. Missouri, 152 U.S. 377, 382 (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 twelve-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 serious

offense, so that defendant could be tried on the more serious charge, a violation of

the clause).

2067 Collins v. Youngblood, 497 U.S. 37, 44–52 (1990). In so doing, the Court overruled Kring and Thompson v. Utah.

2068 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 crimiSec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

410 ART. I—LEGISLATIVE DEPARTMENT
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.2069

Obligation of Contracts

“Law” Defined.—The Contract Clause provides that no state

may pass a “Law impairing the Obligation of Contracts,” and a “law”

in this context may be a statute, constitutional provision,2070 municipal ordinance,2071 or administrative regulation having the force

and operation of a statute.2072 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.2073 Nevertheless, there are important exceptions to this rule that are set forth below.

Status of Judicial Decisions.—Although 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 federal courts will be bound by decisions of the highest state

court on such matters, this rule does not hold when the contract is

nal 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.

2069 Carmell v. Texas, 529 U.S. 513 (2000).

2070 Dodge 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).

2071 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. Goldsboro, 232 U.S. 548 (1914);

Cuyahoga Power Co. v. City of Akron, 240 U.S. 462 (1916).

2072 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).

2073 Central Land Co. v. Laidley, 159 U.S. 103 (1895). See also New Orleans WaterWorks Co. v. Louisiana Sugar Co., 125 U.S. 18 (1888); Hanford v. Davies, 163 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 Ry., Gas & Electric Co. v.

South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. v. Flannagan, 263 U.S. 444 (1924).

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ART. I—LEGISLATIVE DEPARTMENT 411
one whose obligation is alleged to have been impaired by state law.2074

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 Contract Clause.2075

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 repeals certain taxes to be used to pay off the bonds when they become due; (4) the repeal is sustained 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 repeal of the tax.2076

Suppose, however, that the state court has held the statute authorizing the bonds unconstitutional ab initio in a suit by a creditor for payment without the state legislature’s having repealed the

taxes. In this situation, the Supreme Court would still afford relief

if the case were one between citizens of different states, which reached

it via a lower federal court.2077 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 in the

2074 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, 232–33 (1900); Coombes

v. Getz, 285 U.S. 434, 441 (1932); Atlantic Coast Line R.R. v. Phillips, 332 U.S. 168,

170 (1947).

2075 McCullough 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).

2076 State Bank of Ohio v. Knoop, 57 U.S. (16 How.) 369 (1854) (discussed below), 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).

2077 Gelpcke v. City of Debuque, 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).

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

412 ART. I—LEGISLATIVE DEPARTMENT
past has apparently regarded itself as free to pass upon the constitutionality of the state law authorizing the bonds even though there

had 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.2078

In other words, in cases in 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 include 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.2079

In 1922, Congress, through an amendment to the Judicial Code,

endeavored to extend the reviewing power of the Supreme Court to

“any suit 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 . . . .” 2080 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 Chief

Justice Taft that reviewed many of the cases covered in the preceding paragraphs.

Dealing with Gelpcke and subsequent 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

2078 Great Southern Hotel Co. v. Jones, 193 U.S. 532, 548 (1904).

2079 Sauer v. New York, 206 U.S. 536 (1907); Muhlker v. New York & Harlem

R.R., 197 U.S. 544, 570 (1905).

2080 42 Stat. 366.

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ART. I—LEGISLATIVE DEPARTMENT 413
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].” 2081 Although doubtless this was an available explanation in 1924, the decision in 1938, in Erie Railroad Co.

v. Tompkins,

2082 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 Contract 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 Contract 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 Contract Clause has been rendered more or less superfluous by the doctrine that “[t]he laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and

form a part of it.” 2083 Hence, the Court sometimes recognizes the

term in its decisions applying the clause, and sometimes ignores it.

In Sturges v. Crowninshield,

2084 Chief Justice Marshall defined “obligation of contract” as the law that binds a party “to perform his

undertaking,” but a little later the same year, in Dartmouth College v. Woodward, he set forth the points presented for consideration 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?” 2085 The word “obligation” undoubtedly implies that the

Constitution was intended to protect only executory contracts—i.e.,

contracts still awaiting performance—but this implication was rejected early on for a certain class of contracts, with immensely important result for the clause.

2081 Tidal Oil Co. v. Flannagan, 263 U.S. 444, 452 (1924).

2082 304 U.S. 64 (1938).

2083 Walker v. Whitehead, 83 U.S. (16 Wall.) 314, 317 (1873); Wood v. Lovett,

313 U.S. 362, 370 (1941).

2084 17 U.S. (4 Wheat.) 122, 197 (1819); see also Curran v. Arkansas, 56 U.S. (15

How.) 304 (1854).

2085 17 U.S. (4 Wheat.) 518, 627 (1819).

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414 ART. I—LEGISLATIVE DEPARTMENT
“Impair” Defined.—“The obligations of a contract,” said Chief

Justice Hughes for the Court in Home Building & Loan Ass’n v.

Blaisdell,

2086 “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.” 2087 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.” 2088 In short, the law from which the

obligation stems must be understood to include constitutional law

and, moreover a “progressive” constitutional law.2089

Vested Rights Not Included.—The term “contracts” is used in

the Contract 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, § 10.2090

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

2086 290 U.S. 398 (1934).

2087 290 U.S. at 431.

2088 290 U.S. at 435. See also City of El Paso v. Simmons, 379 U.S. 497 (1965).

2089 “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).

2090 Crane v. Hahlo, 258 U.S. 142, 145–46 (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 Contract Clause did not protect vested rights merely

as such was stated by the Court as early as Satterlee v. Matthewson, 27 U.S. (2

Pet.) 380, 413 (1829); and again in Charles River Bridge v. Warren Bridge, 36 U.S.

(11 Pet.) 420, 539–40 (1837).

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

ART. I—LEGISLATIVE DEPARTMENT 415
Constitution 2091—thereby drawing a line between “public” and “private” corporations that remained undisturbed for more than half a

century.2092

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.2093 The same principle applies, moreover, to the property

rights that 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.2094 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, though it limited

the legal liability of municipalities for the negligent acts or omissions of its officers or agents, did not, however, furnish ground for

the application of constitutional restraints against the state in favor of its own municipalities.2095 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.2096 Similarly, a statute changing the boundaries of a school district, giving to the new district 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.2097 Nor was the Contract Clause

violated by state legislation authorizing state control over insolvent communities through a Municipal Finance Commission.2098

On the same ground of public agency, neither appointment nor

election to public office creates a contract in the sense of Article I,

2091 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 629 (1819).

2092 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. Because 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.

2093 Meriwether v. Garrett, 102 U.S. 472 (1880); Covington v. Kentucky, 173 U.S.

231 (1899); Hunter v. Pittsburgh, 207 U.S. 161 (1907).

2094 East Hartford v. Hartford Bridge Co., 51 U.S. (10 How.) 511 (1851); Hunter

v. Pittsburgh, 207 U.S. 161 (1907).

2095 City of Trenton v. New Jersey, 262 U.S. 182, 191 (1923).

2096 Newton v. Commissioners, 100 U.S. 548 (1880).

2097 Michigan ex rel. Kies v. Lowrey, 199 U.S. 233 (1905).

2098 Faitoute Co. v. City of Asbury Park, 316 U.S. 502 (1942).

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416 ART. I—LEGISLATIVE DEPARTMENT
§ 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.2099 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.2100 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.2101 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.2102 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.2103

Similarly, the Court held that an Illinois statute that reduced the

annuity payable to retired teachers under an earlier act did not violate the Contract Clause, because it had not been the intention of

the earlier act to propose a contract but only to put into effect a

general policy.2104 On the other hand, the right a teacher whose position had become “permanent” 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.2105

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 ear2099 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).

2100 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).

2101 Fisk v. Jefferson Police Jury, 116 U.S. 131 (1885); Mississippi ex rel. Robertson v. Miller, 276 U.S. 174 (1928).

2102 Hall v. Wisconsin, 103 U.S. 5 (1880). Cf. Higginbotham v. City of Baton Rouge,

306 U.S. 535 (1930).

2103 Phelps v. Board of Education, 300 U.S. 319 (1937).

2104 Dodge v. Board of Education, 302 U.S. 74 (1937).

2105 Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938).

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

ART. I—LEGISLATIVE DEPARTMENT 417
lier, this has not always been easy to do. In pursuance of the precedent set in New Jersey v. Wilson,

2106 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.2107 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,

2108 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.” 2109 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,” the Court

wrote, “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.” 2110 So far as exemption from taxation is concerned the difference between these two cases is obviously slight, but the later one

2106 11 U.S. (7 Cr.) 164 (1812).

2107 The 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).

2108 57 U.S. (16 How.) 369 (1854).

2109 57 U.S. at 383.

2110 Salt 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.

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

418 ART. I—LEGISLATIVE DEPARTMENT
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.2111 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.2112

“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.2113 Support for the affirmative answer accorded this question

could be derived from the following sources. 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, 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

2111 See 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).

2112 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).

2113 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.

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ART. I—LEGISLATIVE DEPARTMENT 419
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.” 2114

Furthermore, in its first important constitutional case, Chisholm

v. Georgia,

2115 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, Chief Justice Marshall defined the obligation of contract as the law that binds

a party “to perform his undertaking.” 2116 Whence, however, comes

this law? If it comes from the state alone, which Marshall was later

to deny even as to private contracts,2117 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 that springs from state authority, then, as the state itself is presumably bound by such principles, the state’s own obligations, so far as harmonious with them,

are covered by the clause.

Fletcher v. Peck 2118 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 Contract 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.

2114 2 THE WORKS OF JAMES WILSON 834 (R. McCloskey ed., 1967).

2115 2 U.S. (2 Dall.) 419 (1793).

2116 17 U.S. (4 Wheat.) 122, 197 (1819).

2117 Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 338 (1827).

2118 10 U.S. (6 Cr.) 87 (1810).

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420 ART. I—LEGISLATIVE DEPARTMENT
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.” 2119 Hamilton’s views were

quoted frequently in the congressional debate over the “Yazoo Land

Frauds,” as they were contemporaneously known.

So far as it invoked the Contract Clause, Marshall’s opinion in

Fletcher v. Peck performed two creative acts. It 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, Marshall 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.” 2120

2119 B. WRIGHT, THE CONTRACT CLAUSE OF THE CONSTITUTION 22 (1938). Professor Wright

dates Hamilton’s pamphlet as from 1796.

2120 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

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

ART. I—LEGISLATIVE DEPARTMENT 421
The protection thus thrown about land grants was presently extended, in the case of New Jersey v. Wilson,

2121 to a grant of immunity from taxation that the State of New Jersey had accorded certain Indian lands, and several years after that, in Dartmouth

College,

2122 to the charter privileges of an eleemosynary corporation.

In City of El Paso v. Simmons,

2123 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 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.2124 It is also the way in which

principle, on the reason and nature of things; a principle which will impose laws

even on the Deity.” Id. at 143.

2121 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).

2122 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819).

2123 379 U.S. 497 (1965). See also Thorpe v. Housing Authority, 393 U.S. 268,

278–79 (1969).

2124 In 1806, Chief Justice Parsons of the Supreme Judicial Court of Massachusetts, without mentioning the Contract 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)

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422 ART. I—LEGISLATIVE DEPARTMENT
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.2125

The third view is the one formulated by Chief Justice Marshall

in his controlling opinion in Dartmouth College v. Woodward.

2126 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.2127 Taking this view, which he developed with great

ingenuity and persuasiveness, Marshall was able to appeal to the

Contract Clause directly, and without 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.2128 With this doctrine before it, the Court in Provito like effect; cf. Locke v. Dane, 9 Mass. 360 (1812), in which it is said that the

purpose of the Contract 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 Contract Clause.

2125 17 U.S. (4 Wheat.) at 577–95 (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).

2126 17 U.S. (4 Wheat.) 518 (1819).

2127 17 U.S. at 627.

2128 17 U.S. at 637; see also Home of the Friendless v. Rouse, 75 U.S. (8 Wall.)

430, 437 (1869).

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ART. I—LEGISLATIVE DEPARTMENT 423
dence Bank v. Billings,

2129 and again in Charles River Bridge v. Warren Bridge,

2130 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.—There are four principles or doctrines by which the Court has

broken down the force of the Dartmouth College decision in great

measure in favor of state legislative power. By the logic of Dartmouth

College 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.2131 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.2132 There is, however, a difference between a reservation by a statute and one by constitutional provision. Although the

former may be repealed as to a subsequent charter by the specific

terms thereof, the latter may not.2133

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 is 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.2134 Yet,

although some state courts have applied tests of this nature to the

disallowance of legislation, the U.S. Supreme Court has apparently

never done so.2135

It is quite different with respect to the distinction that some

cases point out between, on the one hand, the franchises and privi2129 29 U.S. (4 Pet.) 514 (1830).

2130 36 U.S. (11 Pet.) 420 (1837).

2131 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 712 (1819) (Justice Story).

2132 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).

2133 New Jersey v. Yard, 95 U.S. 104, 111 (1877).

2134 See 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.

2135 See 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).

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424 ART. I—LEGISLATIVE DEPARTMENT
leges that a corporation derives from its charter, and, on the other

hand, 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.2136 By the earlier weight of authority, however, 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 . . . .” 2137 But later holdings

becloud this rule.2138

Corporation Subject to the Law and Police Power.—But suppose that 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 Providence Bank

v. Billings,

2139 which held that, in the absence of express stipulation or reasonable implication to the contrary in its charter, the bank

was subject to the state’s taxing power, 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

2136 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).

2137 Pennsylvania College Cases, 80 U.S. (13 Wall.) 190, 218 (1872). See also Calder

v. Michigan, 218 U.S. 591 (1910).

2138 Lake Shore & Mich. So. 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.

2139 29 U.S. (4 Pet.) 514 (1830).

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ART. I—LEGISLATIVE DEPARTMENT 425
their charter, they can prove the contrary.2140 Since then the rule

has been applied many times in justification of state regulation of

railroads,2141 and even of the application of a state prohibition law

to a company that had been chartered expressly to manufacture

beer.2142

Strict Construction of Charters, Tax Exemptions.—Long 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 Charles River Bridge v. Warren Bridge,

2143

which was decided by a substantially new Court shortly after Chief

Justice Marshall’s death. 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. Because 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 surround2140 Thorpe v. Rutland & Burlington R.R., 27 Vt. 140 (1854).

2141 Thus 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. Louis 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).

2142 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).

2143 36 U.S. (11 Pet.) 420 (1837).

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426 ART. I—LEGISLATIVE DEPARTMENT
ing 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.2144

The Court has reiterated the rule of strict construction many

times. In Blair v. City of Chicago,

2145 decided nearly seventy years

after Charles River Bridge, the Court 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 privileges 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.” 2146

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 suc2144 36 U.S. at 548–53.

2145 201 U.S. 400 (1906).

2146 201 U.S. at 471, 472, quoting The Binghamton Bridge, 70 U.S. (3 Wall.) 51,

75 (1866).

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ART. I—LEGISLATIVE DEPARTMENT 427
cessor.2147 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.2148 Again, a statute that

granted a corporation all “the rights and privileges” of an earlier

corporation was held not to confer the latter’s “immunity” from taxation.2149 Yet again, a legislative authorization of the transfer by one

corporation to another of the former’s “estate, property, right, privileges, and franchises” was held not to clothe the later company with

the earlier one’s exemption from taxation.2150

Furthermore, an exemption from taxation is to be strictly construed even in the hands of one clearly entitled to it. Thus, the exemption conferred by its charter on a railway company was held

not to extend to branch roads it constructed pursuant to a later

statute.2151 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.2152 And, 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.2153 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.2154 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.2155

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 de2147 Memphis & 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).

2148 Atlantic & Gulf R.R. v. Georgia, 98 U.S. 359, 365 (1879).

2149 Phoenix F. & M. Ins. Co. v. Tennessee, 161 U.S. 174 (1896).

2150 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.

2151 Chicago, B. & K.C. R.R. v. Guffey, 120 U.S. 569 (1887).

2152 Ford v. Delta and Pine Land Company, 164 U.S. 662 (1897).

2153 Vicksburg, S. & P. R.R. v. Dennis, 116 U.S. 665 (1886).

2154 Millsaps College v. City of Jackson, 275 U.S. 129 (1927).

2155 Hale v. State Board, 302 U.S. 95 (1937).

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428 ART. I—LEGISLATIVE DEPARTMENT
termine what charges were reasonable.2156 However, when a railway

agreed to accept certain rates for a specified period, it thereby foreclosed the question of the reasonableness of such rates.2157 The grant

to a company of the right to supply a city with water for twentyfive years was held not to prevent a similar concession to another

company by the same city.2158 The promise by a city in the charter

of a water company not to make a similar grant to any other person or corporation was held not to prevent the city itself from engaging in the business.2159 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.2160 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.2161 Indeed, any claim by a private corporation that it received the ratemaking 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.2162

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

2156 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).

2157 Georgia 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).

2158 City of Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 15 (1898).

2159 Skaneateles Water Co. v. 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).

2160 Rogers Park Water Co. v. Fergus, 180 U.S. 624 (1901).

2161 Home Tel. & Tel. Co. v. City of Los Angeles, 211 U.S. 265 (1908); Wyandotte

Gas Co. v. Kansas, 231 U.S. 622 (1914).

2162 See 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).

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ART. I—LEGISLATIVE DEPARTMENT 429
incapable to producing a “contract” within the meaning of Article I,

§ 10. One of the earliest cases to assert this principle was decided

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.” 2163

The Supreme Court first applied similar doctrine in 1848 in a

case involving a grant of exclusive right to construct a bridge at a

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.2164 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.2165 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. Thus, 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. Justice Field wrote 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

2163 Brick Presbyterian Church v. New York, 5 Cow. (N.Y.) 538, 540 (1826).

2164 West 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).

2165 Pennsylvania Hospital v. City of Philadelphia, 245 U.S. 20 (1917).

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

430 ART. I—LEGISLATIVE DEPARTMENT
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.” 2166

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.2167 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

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.” 2168

The leading case involving the police power is Stone v. Mississippi.

2169 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.” 2170

The Court shortly afterward applied the same reasoning in a

case challenging 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

2166 Illinois Cent. R.R. v. Illinois, 146 U.S. 387, 453, 455 (1892).

2167 See 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).

2168 Georgia R.R. & Banking Co. v. Redwine, 342 U.S. 299, 305–06 (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.

2169 101 U.S. 814 (1880).

2170 101 U.S. at 820–21.

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ART. I—LEGISLATIVE DEPARTMENT 431
company for the lost monopoly, its action was sustained on the ground

that it had been taken in the interest of the public health.2171 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.2172

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 overriding

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.” 2173

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 provenance.

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,2174 nor is mar2171 Butchers’ Union Slaughter-House and Live-Stock Landing Co. v. Crescent

City Live-Stock Landing and Slaughter-House Co., 111 U.S. 746 (1884).

2172 New Orleans Gas Co. v. Louisiana Light Co., 115 U.S. 650 (1885).

2173 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).

2174 Morley 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.

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432 ART. I—LEGISLATIVE DEPARTMENT
riage.2175 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.2176

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 private contracts. The first case involving such a contract to reach the

Supreme Court was Sturges v. Crowninshield,

2177 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

that binds the parties to perform their undertakings was not free

from ambiguity, owing to the uncertain connotation of the term

“law.” 2178

These obscurities were finally cleared up for most cases in Ogden

v. Saunders,

2179 in which the temporal relation of the statute and

the contract involved was exactly reversed—the former antedating

the latter. Chief Justice Marshall contended unsuccessfully that the

statute was void because it purported to release the debtor from

that original, intrinsic obligation that 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 Contract Clause if

states might pass acts declaring that all contracts made subsequently thereto should be subject to legislative control.2180

2175 Maynard 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).

2176 New Orleans v. New Orleans Water-Works Co., 142 U.S. 79 (1891); Zane v.

Hamilton County, 189 U.S. 370, 381 (1903).

2177 17 U.S. (4 Wheat.) 122 (1819).

2178 17 U.S. (4 Wheat.) at 197.

2179 25 U.S. (12 Wheat.) 213 (1827).

2180 25 U.S. at 353–54.

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ART. I—LEGISLATIVE DEPARTMENT 433
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, the Court 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

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 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

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434 ART. I—LEGISLATIVE DEPARTMENT
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. . . .” 2181

This rule was first definitely announced in 1843 in Bronson v.

Kinzie.

2182 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 required 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 pre-existing remedies to such an extent, violated the constitutional prohibition and

hence was void. The year following a like ruling was made in McCracken v. Hayward,

2183 as to a statutory provision that personal

property should not be sold under execution for less than twothirds 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.” 2184 Thus, states are constantly remodelling their judicial

systems and modes of practice unembarrassed by the Contract

Clause.2185 The right of a state to abolish imprisonment for debt

was early asserted.2186 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.2187 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.2188 In the words of the Court: “Every case must be determined upon its own circumstances”; 2189 and it later added: “In all

2181 United States ex rel. Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 552 (1867).

2182 42 U.S. (1 How.) 311 (1843).

2183 43 U.S. (2 How.) 608 (1844).

2184 Oshkosh Waterworks Co. v. Oshkosh, 187 U.S. 437, 439 (1903); City & Lake

R.R. v. New Orleans, 157 U.S. 219 (1895).

2185 Antoni v. Greenhow, 107 U.S. 769 (1883).

2186 The 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).

2187 McGahey v. Virginia, 135 U.S. 662 (1890).

2188 Louisiana v. New Orleans, 102 U.S. 203 (1880).

2189 United States ex rel. Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 554 (1867).

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ART. I—LEGISLATIVE DEPARTMENT 435
such cases the question becomes . . . one of reasonableness, and of

that the legislature is primarily the judge.” 2190

Contracts involving municipal bonds merit special mention. 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,

2191 “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.2192 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.2193 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 repu2190 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 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. 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).

2191 71 U.S. (4 Wall.) 535, 554–55 (1867).

2192 See also Nelson v. St. Martin’s Parish, 111 U.S. 716 (1884).

2193 Mobile v. Watson, 116 U.S. 289 (1886); Graham v. Folsom, 200 U.S. 248 (1906).

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436 ART. I—LEGISLATIVE DEPARTMENT
diation.2194 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, 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.2195

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 violated the Contract 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

2194 Heine v. Levee Commissioners, 86 U.S. (19 Wall.) 655 (1874). Cf. Virginia v.

West Virginia, 246 U.S. 565 (1918).

2195 Faitoute 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, 19 Wall. [86 U.S.] 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.

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

ART. I—LEGISLATIVE DEPARTMENT 437
practices. . . .” Would the legislature then be powerless to prohibit

them? The answer returned, of course, was no.2196

The prevailing doctrine was stated by the U.S. Supreme Court:

“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 previously 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.” 2197

So, in an early case, we find a state recording act upheld as

applying to deeds dated before the passage of the act.2198 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; 2199 contracts for the sale of beer,

valid when entered into, were similarly nullified by a state prohibition law; 2200 and contracts of employment were modified by later

laws regarding the liability of employers and workmen’s compensation.2201 Likewise, a contract between plaintiff and defendant did

not prevent the state from making the latter a concession that rendered the contract worthless; 2202 nor did a contract as to rates between two railway companies prevent the state from imposing different rates; 2203 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.2204 Similarly, a contract for the

conveyance of water beyond the limits of a state did not prevent

the state from prohibiting such conveyance.2205

But the most striking exertions of the police power touching private contracts, as well as other private interests within recent years,

2196 Myers 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).

2197 Manigault v. Springs, 199 U.S. 473, 480 (1905).

2198 Jackson v. Lamphire, 28 U.S. (3 Pet.) 280 (1830). See also Phalen v. Virginia, 49 U.S. (8 How.) 163 (1850).

2199 Stone v. Mississippi, 101 U.S. 814 (1880).

2200 Beer Co. v. Massachusetts, 97 U.S. 25 (1878).

2201 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.

2202 Manigault v. Springs, 199 U.S. 473 (1905).

2203 Portland Ry. v. Oregon R.R. Comm’n, 229 U.S. 397 (1913).

2204 Midland Co. v. Kansas City Power Co., 300 U.S. 109 (1937).

2205 Hudson Water Co. v. McCarter, 209 U.S. 349 (1908).

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438 ART. I—LEGISLATIVE DEPARTMENT
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 on the basis of the Contract 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.” 2206 In a subsequent case, however, the Court added that, although 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.2207

Summing up the result of the cases referred to above, Chief Justice Hughes, speaking for the Court in Home Building & Loan Ass’n

v. Blaisdell,

2208 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 reser2206 Marcus Brown Co. v. Feldman, 256 U.S. 170, 198 (1921), followed in Levy

Leasing Co. v. Siegel, 258 U.S. 242 (1922).

2207 Chastleton Corp. v. Sinclair, 264 U.S. 543, 547–48 (1924).

2208 290 U.S. 398 (1934).

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ART. I—LEGISLATIVE DEPARTMENT 439
vation of the reasonable exercise of the protective power of the States

is read into all contracts . . . .” 2209

Evaluation of the Clause Today.—It should not be inferred

that the Contract Clause is today totally moribund. Even prior to

the most recent decisions, it still furnished the basis 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,2210 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,

2211

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 that were not as considerate of creditor’s rights, were set

aside as violating the Contract Clause.2212 “A State is free to regulate the procedure in its courts even with reference to contracts al2209 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, 531–32 (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.

2210 See Edwards v. Kearzey, 96 U.S. 595 (1878); Barnitz v. Beverly, 163 U.S.

118 (1896).

2211 290 U.S. 398 (1934).

2212 W. B. Worthen Co. v. Thomas, 292 U.S. 426 (1934); W. B. Worthen Co. v.

Kavanaugh, 295 U.S. 56 (1935).

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440 ART. I—LEGISLATIVE DEPARTMENT
ready 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 security.”

2213 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 found 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.” 2214

In the meantime, the Court had sustained New York State legislation 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.2215

“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.” 2216

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.” 2217 So saying, the Court struck down state legislation in two

2213 295 U.S. at 62.

2214 East New York Bank v. Hahn, 326 U.S. 230, 235 (1945), quoting New York

Legislative Document (1942), No. 45, p. 25.

2215 Honeyman v. Jacobs, 306 U.S. 539 (1939). See also Gelfert v. National City

Bank, 313 U.S. 221 (1941).

2216 313 U.S. at 233–34.

2217 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 JusSec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

ART. I—LEGISLATIVE DEPARTMENT 441
instances, one law involving the government’s own contractual obligation and the other affecting private contracts.2218 A finding that

a contract has been “impaired” in some way is merely the preliminary step in evaluating the validity of the state action.2219 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.” 2220

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.” 2221 Having determined that a

severe impairment had resulted in both cases,2222 the Court moved

on to assess the justification for the state action.

In United States Trust, the Court ruled 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 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.2223

tices 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.

2218 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 the

state, a law that greatly altered the company’s liabilities under its contractual pension plan.

2219 431 U.S. at 21; 438 U.S. at 244.

2220 431 U.S. at 22–26; 438 U.S. at 248.

2221 438 U.S. at 245.

2222 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).

2223 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,

Sec. 10—Powers Denied to the States Cl. 1—Treaties, Coining Money, Etc.

442 ART. I—LEGISLATIVE DEPARTMENT
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 that the challenged law did

not possess any of these attributes and thus struck it down.2224

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.” 2225

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.” 2226 With respect to

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.)

2224 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).

2225 438 U.S. at 242 (emphasis by Court).

2226 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

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports

ART. I—LEGISLATIVE DEPARTMENT 443
exports, the exemption from taxation “attaches to the export and

not to the article before its exportation,” 2227 requiring an essentially factual inquiry into whether there have been acts of movement toward a final destination constituting sufficient entrance into

the export stream as to invoke the protection of the clause.2228 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.” 2229 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.2230 Imports for manufacture cease to be such when the intended processing takes place,2231 or when the original packages are

broken.2232 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.2233 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.2234

A state franchise tax measured by properly apportioned gross re-

(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).

2227 Cornell v. Coyne, 192 U.S. 418, 427 (1904).

2228 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).

2229 25 U.S. (12 Wheat.) 419, 441–42 (1827).

2230 May v. New Orleans, 178 U.S. 496, 502 (1900).

2231 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).

2232 Low v. Austin, 80 U.S. (13 Wall.) 29 (1872); May v. New Orleans, 178 U.S.

496 (1900).

2233 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).

2234 324 U.S. at 664.

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports

444 ART. I—LEGISLATIVE DEPARTMENT
ceipts 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.2235

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

unconstitutional.2236 Likewise, a franchise tax upon foreign corporations engaged in importing nitrate and selling it in the original packages,2237 a tax on sales by brokers 2238 and auctioneers 2239 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,2240 have been held invalid. On the other

hand, pilotage fees,2241 a tax upon the gross sales of a purchaser

from the importer,2242 a license tax upon dealing in fish which, through

processing, handling, and sale, have lost their distinctive character

as imports,2243 an annual license fee imposed on persons engaged

in buying and selling foreign bills of exchange,2244 and a tax upon

the right of an alien to receive property as heir, legatee, or donee

of a deceased person 2245 have been held not to be duties on imports or exports.

Property Taxes

Overruling a line of prior decisions that 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.2246 Thus, a company’s inventory of imported tires main2235 Canton R.R. v. Regan, 340 U.S. 511 (1951).

2236 Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 447 (1827).

2237 Anglo-Chilean Corp. v. Alabama, 288 U.S. 218 (1933).

2238 Low v. Austin, 80 U.S. (13 Wall.) 29, 33 (1872).

2239 Cook v. Pennsylvania, 97 U.S. 566, 573 (1878).

2240 Crew Levick Co. v. Pennsylvania, 245 U.S. 292 (1917).

2241 Cooley v. Board of Wardens, 53 U.S. (12 How.) 299, 313 (1851).

2242 Waring 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).

2243 Gulf Fisheries Co. v. MacInerney, 276 U.S. 124 (1928).

2244 Nathan v. Louisiana, 49 U.S. (8 How.) 73, 81 (1850).

2245 Mager v. Grima, 49 U.S. (8 How.) 490 (1850).

2246 Michelin 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)

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports

ART. I—LEGISLATIVE DEPARTMENT 445
tained at its whole 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.2247

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.” 2248 In Turner v. Maryland,

2249 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 . . . ” 2250

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.2251 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.2252

(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).

2247 Michelin Tire Corp. v. Wages, 423 U.S. 276, 290–94 (1976). Accord, R. J.

Reynolds Tobacco Co. v. Durham County, 479 U.S. 130 (1986) (tax on imported tobacco 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’s comprehensive regulation of customs duties;” case, however, dealt with goods

stored for export).

2248 Bowman v. Chicago & Nw. Ry., 125 U.S. 465, 488 (1888).

2249 107 U.S. 38 (1883).

2250 107 U.S. at 55.

2251 Patapsco Guano Co. v. North Carolina, 171 U.S. 345, 361 (1898).

2252 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. Beam Distillers,

377 U.S. 341 (1964).

Sec. 10—Powers Denied to the States Cl. 2—Duties on Exports and Imports

446 ART. I—LEGISLATIVE DEPARTMENT
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.

TONNAGE DUTIES

The purpose of the Tonnage Clause is “to ‘restrai[n] the states

themselves from the exercise’ of the taxing power ‘injuriously to the

interests of each other.’ . . . In writing the Tonnage Clause, the Framers recognized that, if ‘the states had been left free to tax the privilege of access by vessels to their harbors the prohibition [in Article

I, § 10, clause 2] against duties on imports and exports could have

been nullified by taxing the vessels transporting the merchandise.’ ” 2253 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, that, in effect, are charges for the

privilege of entering, trading in, or lying in a port.2254 The Tonnage

Clause, however, does not ban all “taxes which fall on vessels that

use a State’s port, harbor, or other waterways. Such a radical proposition would transform the Tonnage Clause from one that protects

vessels, and their owners, from discrimination by seaboard States,

to one that gives vessels preferential treatment vis-à-vis all other

property, and its owners, in a seaboard State.” 2255 But it does not

extend to charges made by state authority, even if graduated according to tonnage,2256 for services rendered to the vessel, such as pilotage, towage, charges for loading and unloading cargoes, wharfage,

or storage.2257

For the purpose of determining wharfage charges, it is immaterial whether the wharf was built by the state, a municipal corpora2253 Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310, slip

op. at 3, 4 (2009).

2254 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); Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___,

No. 08–310 (2009).

2255 Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. ___, No. 08–310, slip

op. at 6 (2009) (citation omitted).

2256 Packet 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).

2257 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 Co. 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).

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts

ART. I—LEGISLATIVE DEPARTMENT 447
tion, 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.2258 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.2259 A state may not levy a tonnage duty to defray the

expenses of its quarantine system,2260 but it may exact a fixed fee

for examination of all vessels passing quarantine.2261 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.2262 In the

State Tonnage Tax Cases,

2263 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 controlled by

civil authority,2264 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.2265

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.2266 “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.” 2267 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.

2258 Huse v. Glover, 119 U.S. 543, 549 (1886).

2259 Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31 (1867).

2260 Peete v. Morgan, 86 U.S. (19 Wall.) 581 (1874).

2261 Morgan v. Louisiana, 118 U.S. 455, 462 (1886).

2262 Wiggins 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).

2263 79 U.S. (12 Wall.) 204, 217 (1871).

2264 Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849).

2265 Presser v. Illinois, 116 U.S. 252 (1886).

2266 Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837).

2267 Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104

(1938).

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts

448 ART. I—LEGISLATIVE DEPARTMENT
These disputes were usually resolved by negotiation, with the resulting agreement subject to approval by the Crown.2268 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” 2269 and required the approval of Congress for any “treaty confederation or alliance” to which a state should be a party.2270

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:

2271 “[A]s these words [‘agreement’ and ‘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 any direct and 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 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.” 2272 But, in Virginia v.

Tennessee,

2273 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 understand2268 Frankfurter and Landis, The Compact Clause of the Constitution: A Study

in Interstate Adjustments, 34 YALE L.J. 685, 691 (1925).

2269 Article IX.

2270 Article VI.

2271 39 U.S. (14 Pet.) 540 (1840).

2272 39 U.S. at 571, 572.

2273 148 U.S. 503, 518 (1893). See also Stearns v. Minnesota, 179 U.S. 223, 244

(1900).

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts

ART. I—LEGISLATIVE DEPARTMENT 449
ing of the clause, the Court found no enhancement of state power

in relation to the Federal Government through entry into the

Multistate Tax Compact, and thus sustained the agreement among

participating states without congressional consent.2274

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.2275 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, 1934,2276 whereby it consented in advance to agreements

for the control of crime. The first response to this stimulus was the

Crime Compact of 1934, providing for the supervision of parolees

and probationers, to which most of the states have given adherence.2277 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, and the framing of uniform state legislation for dealing with some of these.2278

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

2274 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).

2275 Frankfurter 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).

2276 48 Stat. 909 (1934).

2277 F. ZIMMERMAN AND M. WENDELL, INTERSTATE COMPACTS SINCE 1925 91 (1951).

2278 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. § 552; 33 U.S.C. §§ 11, 567–

567b.

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts

450 ART. I—LEGISLATIVE DEPARTMENT
by which it shall be signified.2279 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.2280 The required consent is

not necessarily an expressed consent; it may be inferred from circumstances.2281 It is sufficiently indicated, when not necessary to

be made in advance, by the approval of proceedings taken under

it.2282 The consent of Congress may be granted conditionally “upon

terms appropriate to the subject and transgressing no constitutional limitations.” 2283 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.2284

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

state that 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.2285

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.2286

Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judi2279 Green v. Biddle, 21 U.S. (8 Wheat.) 1, 85 (1823).

2280 Virginia v. Tennessee, 148 U.S. 503 (1893).

2281 Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871).

2282 Wharton v. Wise, 153 U.S. 155, 173 (1894).

2283 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. DeVeau v. Braisted, 363 U.S. 144, 145 (1960).

2284 Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421,

433 (1856).

2285 St. Louis & S.F. Ry. v. James, 161 U.S. 545, 562 (1896).

2286 Poole v. Fleeger, 36 U.S. (11 Pet.) 185, 209 (1837); Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 725 (1838).

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts

ART. I—LEGISLATIVE DEPARTMENT 451
cial determination of existing rights.2287 Valid interstate compacts

are within the protection of the Contract Clause,2288 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.2289 The Supreme Court in the exercise of its original jurisdiction may enforce interstate compacts following principles of general contract law.2290 Congress also has authority to compel compliance

with such compacts.2291 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.2292

2287 Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 104,

106 (1938).

2288 Green 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).

2289 Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275 (1959).

2290 Texas 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).

2291 Virginia v. West Virginia, 246 U.S. 565, 601 (1918).

2292 Dyer v. Sims, 341 U.S. 22 (1951).

Sec. 10—Powers Denied to the States Cl. 3—Tonnage Duties and Interstate Compacts

452 ART. I—LEGISLATIVE DEPARTMENT